Red Top, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1970

185 N.L.R.B. 989 (N.L.R.B. 1970)

RED TOP, INC
Red Top , Inc. and Carl L. Tyler. Case 17-CA-
3948
October 12, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 11, 1970, Trial Examiner Laurence A.
Knapp issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in cer-
tain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examin-
er's Decision. The Trial Examiner further found that
Respondent had not engaged in certain other unfair
labor practices as alleged in the complaint. The Gener-
al Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
filed cross-exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions,
the briefs, and the entire record in this case, and
hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations with the following modifi-
cations.
The Trial Examiner concluded that the actions
of employee Advisory Committee members Tyler,
Svoboda, and Walton, in processing grievances and
at committee meetings exceeded permissible bounds
of conduct which the Board holds should be tolerated
in the interest of safeguarding the collective-bargaining
and grievance procedures, and recommends dismissal
of the allegation of the complaint that the Respondent
discharged these three employees because of their
protected concerted activities. However, we find merit
in General Counsel's exceptions and conclude that
the discharge of employees Walton, Tyler, and Svobo-
da was based on their concerted protected activities
on behalf of the employee Advisory Committee.'
' For the reasons set forth by the Trial Examiner , we agree that
the General Counsel failed to prove that Respondent had knowledge
of union organizing activities at the time these employees were discharged
989
Employees Delwyn Svoboda , Carl Tyler, and James
Walton had been officers of the p.m. Advisory Com-
mittee for some time and had actively participated
with management , both through meetings and corre-
spondence , concerning working conditions at the hos-
pital and employees ' grievances . Although some prob-
lems existed between the Committee and the
Respondent 's Omaha management prior to February,
they multiplied at that time when Lassiter , who was
assistant manager, started meeting with the Committee
and when he officially became manager in March
1969. Apparently receiving no satisfaction from Lassi-
ter concerning grievances and working conditions,
the Committee , in its April 17 letter, again sought
relief from the home office . As a result of this letter,
Respondent 's Regional Director Denne arrived in
Omaha on April 30 and met with Lassiter . Lassiter
told Denne of the difficulties he had been having
with Tyler, Walton , and Svoboda , and said that he
wanted to discharge them . Denne agreed that this
should be done, and Lassiter fired these three employ-
ees the next day, May 1.
Lassiter testified that he discharged (1) Tyler for
"insubordination and disrespect , threatening me, call-
ing me a liar, and daring me to fire him;" (2 ) Walton
for "insubordination and disrespect , going back to
the March 31 incident , and also the recent incident
where he concurred fully with Mr . Tyler that I would
be physically struck or could be as a result of having
called his area "cruddy"; and (3 ) Svoboda for "insu-
bordination and disloyalty , insubordination, he was
banging on his [sic] desk and not adhering to my
policy and the Company policy of not going to the
hospital administration with their problems. " (Empha-
sis supplied .) The Trial Examiner concluded for the
reasons previously noted that the employees were
discharged for good cause. We do not agree.
At issue is whether the discriminatees engaged in
such flagrant acts during their conversations with
management that would justify their discharge, as
the Trial Examiner found , or whether they were
in fact discharged for bypassing Lassiter and present-
ing grievances and demands directly to the home
office or to the hospital authorities.
The Board has long held, with court approval,
that not every impropriety committed in the course
of Section 7 activity deprives the employee of the
protective mantle of the Act. In Bettcher Mfg. Co.,
76 NLRB 526, 527 , the Board stated:
We do not hold, of course, that an employee
may never be lawfully discharged because of
what he says or does in the course of a bargaining
conference. A line exists beyond which an
employee may not with impunity go, but that
line must be drawn "between cases where employ-
185 NLRB No. 138
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees engaged in concerted activities exceed the
bounds of lawful conduct in `a moment of animal
exuberance' (Milk Wagon Drivers Union v. Mea-
dowmoor Dairies, Inc., 312 U.S. 287, 293) or
in a manner not activated by improper motives,
and those flagrant cases in which the misconduct
is so violent or of such serious character as
to render the employee unfit for further service."
The latter types of cases are the ones in which the
protection of the rights of employees to full freedom
of self-organization activities may be subordinated
to the employer 's right to maintain appropriate order
and discipline . However , if an employer were permit-
ted to sit in absolute judgment on the propriety
of all remarks made by his employees in the course
of protected activity , an employee would hesitate
to play an active role in union activity or negotiations
since he would be "wholly at the mercy of the varied
understanding of his hearers and consequently, of
whatever inferences may be drawn as to his intent
and meaning ."' Thus, where, as here, the improper
conduct is closely intertwined with protected activity,
the protection is not lost unless the impropriety is
egregious.
It is apparent from a reading of the Trial Examiner's
recitation of the pertinent events, which describes
in detail the incidents found to be excessive, that
the alleged misconduct was of a minor nature, and
was the result of understandable anger in the course
of disagreements over matters under discussion. In
the context here, the incidents were an integral part
of the protected concerted activity and hence not
valid reason for lawful discharge.
On the facts in this case we conclude that the
Respondent was primarily motivated to discharge
these three employees because of their activities as
officers of the Red Top Advisory Committee. The
discharges were abrupt and came soon after the Advi-
sory Committee sent a letter dated April 17 to the
home office in Denver asking assistance to solve
the problems at the hospital in which they were
employed , as they wanted something done to "correct
this type of management ." Whether such problems
should have been more properly channelled through
Lassiter , the Employer's immediate representative, we
need not decide since it is sufficient to find that
the method utilized was also protected concerted activ-
ity. We conclude that the men were discharged because
of their continuing efforts to solve their problems
at the hospital or, in effect , for engaging in a concerted
activity protected by Section 7 of the Act, and not
for insubordination as contended by the Respondent.
' Harding Glass of Missouri, Inc., 158 NLRB 1366 , 1372, wherein
the Trial Examiner quotes from Thomas v Collins, 323 U S 516, 535
Accordingly, by discharging the three employees, we
find that the Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaran-
teed them by Section 7, and thereby violated Section
8(a)(1) of the Act.
The record shows that a number of night-shift
employees , including Barr , whom the Trial Examiner
ordered reinstated with backpay, left work in protest
against the discharge of employees Svoboda, Tyler,
and Walton . As the discharges have been found unlaw-
ful, the walkout in protest of such conduct was an
unfair labor practice strike. Accordingly, such employ-
ees are entitled to reinstatement and backpay upon
unconditional application for employment in the man-
ner prescribed in the "Remedy " section hereafter.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. By discharging Delwyn Svoboda, Carl Tyler,
and James Walton because they engaged in concerted
protected activity for mutual aid and protection of
Respondent 's employees, Respondent interfered with,
restrained , and coerced its employees in violation
of Section 8(a)(1) of the Act.
3. By refusing to reinstate and thus terminating
the employment of James Barr because he engaged
in lawful strike activity , Respondent has engaged
in an unfair labor practice in violation of Section
8(a)(1) of the Act.
4. Employees who struck in protest of the unlawful
discharges of Delwyn Svoboda , Carl Tyler , and James
Walton were engaged in an unfair labor practice
strike, and are unfair labor practice strikers who
are entitled to reinstatement upon unconditional appli-
cation for employment.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we shall order the
Respondent to cease and desist therefrom and to
take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent discharged Svo-
boda, Tyler, and Walton because they engaged in
concerted activity for the employees' mutual aid and
protection we shall order the Respondent to offer
Svoboda, Tyler, and Walton immediate and full rein-
statement to their former jobs or , if those jobs no
RED TOP, INC 991
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings they may have suffered as a result of such
unlawful discharges, by payment to them of a sum
of money equal to the amount they would have
earned from the date of their discharges to the date
of an offer of reinstatement less net earnings, if any,
during such period to be computed on a quarterly
basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, and includ-
ing interest at the rate of 6 percent per annum in
the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
Further, we shall order the Respondent to offer
Barr immediate and full reinstatement to his former
job or, if that job no longer exists to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and to make him
whole for any loss of earnings he may have suffered
by reason of the failure to reinstate him by payment
to him of a sum of money equal to that which
he normally would have earned as wages from May
3, 1969, the date of the failure to reinstate him,
to the date of Respondent's offer of reinstatement,
less his net earnings during such period, with backpay
and interest thereon computed in the manner pre-
scribed in F W. Woolworth Company, 90 NLRB 289
and Isis Plumbing & Heating Co., 138 NLRB 716.
Further, we shall order that the Respondent, upon
application, offer the remaining strikers reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, any employees
hired on or after May 1, 1969, for such positions.
We shall also order that Respondent make whole
those strikers who are entitled to reinstatement for
any loss of pay they may suffer by reason of the
Respondent's refusal, if any, to reinstate them, upon
request, by payment to each of them of a sum of
money equal to that which he normally would have
earned as wages during the period beginning 5 days
after the date on which he applies for reinstatement
and terminating on the date of the Respondent's
offer of reinstatement, such loss to be computed in
the manner set forth in F W. Woolworth Company,
supra. Interest at the rate of 6 percent per annum
shall be added to the backpay to be computed in
the manner set forth in Isis Plumbing & Heating
Co., supra.
ORDER
The Respondent, Red Top, Inc., Omaha, Nebraska,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging its employees for engaging in con-
certed activities for the purpose of their mutual aid
or protection.
(b) Refusing to reinstate an employee because he
has engaged in strike activities.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist any labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutu-
al aid or protection, and refrain from any or all
such activities, except to the extent that such right
may be affected by an agreement requiring member-
ship in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act,
as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action:
(a) Offer to Delwyn Svoboda, Carl Tyler, James
Walton, and James Barr immediate and full reinstate-
ment to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make each whole for any loss
of pay he may have suffered as a result of his discharge
or refusal to reinstate him, in the manner set forth
above in the Section entitled "The Remedy."
(b) Upon application, offer to the remaining strikers
reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority
or other rights and privileges, dismissing, if necessary,
any employees hired on or after May 1, 1969, for
such positions. Respondent shall make whole those
strikers who are entitled to reinstatement for any
loss of pay they may suffer by reason of Respondent's
refusal, if any, to reinstate them in the manner set
forth above in the Section entitled "The Remedy."
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States
of his right to full reinstatement upon application
in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available
to the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Recommended
Order.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its Omaha, Nebraska, hospital copies
of the attached notice marked "Appendix."' Copies
of said notices, on forms provided by the Regional
Director for Region 17, after being duly signed by
the Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 17,
in writing, within 10 days from the receipt of this
Order what steps have been taken to comply.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of the Act not specifically found herein.
' In the event that 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 National Labor Relations Board" shall be changed to
read "Posted Pursuant to a Judgment of the United States Court of
Appeals Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify all our employees that:
WE WILL NOT discourage concerted activity
for the mutual aid and protection of our employ-
ees by discharging any of them for engaging
in such activity.
WE WILL NOT refuse to reinstate any employee
because he has engaged in lawful strike activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights to self-organization, to form labor
organizations, to join or assist any labor organiza-
tion, to bargain collectively through representa-
tives of your own choosing, and to engage in
other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion or to refrain from any or all such activities,
except to the extent that such right may be
affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer to Delwyn Svoboda, Carl Tyler,
James Walton, and James Barr immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority
or other rights and privileges, and will make
them whole for any loss of earnings suffered
as a result of our unlawful discharges or refusal
to reinstate them.
WE WILL, upon application, offer the remain-
ing strikers reinstatement to their former or sub-
stantially equivalent positions, without prejudice
to their seniority or other rights and privileges,
dismissing if necessary, any employees hired on
or after May 1, 1969, for such positions. In
the event we fail to reinstate such strikers, we
shall make them whole for any loss of pay they
may suffer because of our refusal to reinstate
them.
WE WILL notify the above-named employees
if presently serving in the Armed Forces of the
United States of their right to full reinstatement,
upon application, in accordance with Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces.
RED Top, INC.
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone 816-374-
5181.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A. KNAPP, Trial Examiner: I heard this
case on November 6 and 7, 1969, at Omaha, Nebraska,
following pretrial procedures in compliance with the Nation-
al Labor Relations Act, as amended (herein called the
Act.)' Following the hearing, briefs were submitted by
counsel for the General Counsel and for Respondent.
Upon the entire record in the case2 and my observation
of the demeanor of the witnesses, I make the following.
The charge herein was filed on June 11, 1969, a complaint and
an amended complaint were issued on September 29, 1969, and on
October 15, 1969, respectively, and Respondent duly answered the initial
and the amended complaints on October 6 and 21, 1969, respectively
All dates used herein refer to 1969 unless otherwise indicated
The motions of Respondent and of the General Counsel to correct
the transcript of the testimony, dated January 7 and 13, 1970, are
FINDINGS OF FACT
RED TOP, INC. 993
I RESPONDENT'S BUSINESS; THE LABOR ORGANIZATIONS
INVOLVED
The amended complaint alleges, Respondent's answer
admits, and I find that Respondent, a Nebraska corporation,
with its principal office and place of business in Denver,
Colorado, is engaged in various States in the business
of providing housekeeping (that is, janitorial) services to
hospitals, including the Archbishop Bergan Mercy Hospital
in Omaha (herein called the hospital), the locale of the
events involved in this case; and that in the course and
conduct of its business operations Respondent annually
performs services valued in excess of $50,000 outside the
State of Nebraska, and annually purchases goods or services
in excess of $50,000 from outside the State of Nebraska
Respondent is engaged in commerce and in activities affect-
ing commerce within the meaning of Section 2(6) and
(7) of the Act, and it will effectuate the purpose of the
Act to assert jurisdiction herein
The amended complaint alleges, Respondent admits, and
I find that Building Service Employees International Union
(herein sometimes called the Union), is a labor organization
within the meaning of Section 2(5) of the Act. The amended
complaint alleges, Respondent's answer denies, but on the
evidence I find that the Red Top Advisory Committee
(herein sometimes called the committee) of Respondent's
employees at the hospital is a labor organization within
the meaning of Section 2(5) of the Act'
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent's employees engaged in cleaning and like
housekeeping operations at the hospital in Omaha are com-
posed of two shifts, day and night
Each shift of employees has for some years annually
elected an Advisory Committee, one of the purposes of
which is, upon request of an employee, to represent him
in any dispute with Respondent which the employee is
unable or unwilling to settle in direct dealing with Respond-
ent's management.' This case concerns the night Advisory
Committee at the hospital and finds its basic origin in
a history of increasing friction and antagonism between
hereby granted There are other transcript errors but I do not formally
correct them since they are both obvious and harmless
' The evidence, including the bylaws of the Committee (G C Exh
8) and the testimony with respect to its activities, show without contra-
diction that the committee is an organization or committee in which
employees participate and which exists for the purpose , in part , of dealing
with Respondent with respect to "gnevances , labor disputes" and "condi-
tions of work" within the language and meaning of Sec 2(5) of the
Act Respondent makes no contrary contention in its brief to me
' See "ADVISORY COMMITTEE BYLAWS" G C Exh 8 and
Respondent's employees ' "ORIENTATION SUMMARY," G C Exh
7 A reading of the entire bylaws discloses that a further purpose of
the committees is to advise employees relative to "Company Policy"
and, further, that Respondent's hospital manager attends some committee
meetings and participates in the operations of the committees to some
extent . Hence, the committees are somewhat reminiscent of the employer-
sponsored employee representation plans so prevalent in the 1930s Howev-
er the complaint does not charge Respondent with any violation of
the Act in relation to the administration of the committees
members of that committee and Respondent's hospital man-
agers during the period February-May 1969. The members
of the committee during this pertinent period were Delwyn
Svoboda, chairman; Carl Tyler, co-chairman, James Walton,
secretary, James Barr, treasurer, and Grover Henderson,
alternate Respondent's officials involved in the events perti-
nent to this case are its president, Mr. Williams, located
at Respondent's head office at Denver, John E Denne,
likewise headquartered at Denver and a regional director
for the region which includes the Omaha hospital and
the immediate superior of Respondent's managerial staff
at that hospital, a Mr. Florian who was Respondent's
manager at that hospital until about March 15, 1969,
and Daniel L Lassiter, who succeeded Florian as manager
and who had previously been assistant manager following
his original employment as such on August 1, 1968.5
Following a series of events to be described below, in
the early evening of May 1 Respondent discharged Svoboda,
Tyler, and Walton. As a result a number of their coworkers
on the night shift, including Barr, left work in protest,
and although Barr later sought to return to work Respondent
put him off and has not reinstated him. The complaint
alleges that Respondent discharged the three and refused
to reinstate Barr because of their (union or protected concert-
ed) activities as members of the night Red Top Committee,
or because of their union activities (organizing activities)
on behalf of the Building Service Employees International
Union later described, that the May 1 walkout of other
employees constituted an unfair labor practice strike war-
ranting an order entitling the strikers to reinstatement
upon their unconditional application; and that Respondent
engaged in two independent acts of unlawful coercion.
I conclude that Tyler, Svoboda, and Walton were lawfully
discharged, that Barr was unlawfully refused reinstatement
because he engaged in lawful strike activity, that the walkout
was an economic and not an unfair labor practice strike;
and that Respondent did not engage in the unlawful acts
of coercion alleged.
THE PERTINENT EVENTS
In about mid-January 1969, Denne, Respondent's regional
director , and Mr Williams , Respondent 's president , visited
the hospital and conducted an inspection of its cleanliness;`
they found the hospital in generally dirty shape, especially
the area served by the night staff As a result of this
inspection the employment of (then) Night Supervisor Vern
Hawkins terminated.' While Mr. Williams and Denne were
in Omaha on this occasion, they, along with Manager
Florian and Assistant Manager Lassiter, met with the night
advisory committee at the latter's request. The record does
not establish what happened during this meeting, other
than that "problems" were discussed
' The transcript incorrectly gives this date as August 1, 1969
" This was a "periodical hospital analysis," that is, a form of inspection
which under Respondent's mode of operation is conducted without poor
announcement and at random times by Respondent 's regional directors.
' The record is clear that Hawkins' employment came to an end
at this time, following a meeting between Hawkins and (then ) manager
Florian On the basis of Denne's and Lassiter 's testimony I find that
Hawkins quit
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At some uncertain point of time in February, committee
member Tyler wrote a letter' to Respondent President
Williams, the text of which reads as follows:
Dear Sir,
This letter is to inform you of the actions going
on at the Omaha Archbishop Bergan Mercy Hospital
We the advisory committee of the P M shift and
all of the P.M. personal (sic) and more than half
of the A M. shift are not in agreement with the way
mangement (sic) is running the hospital We have
gone to management on several occasions with our
problems and have been promised action but they
have done nothing. First of all our funds or (sic)
being misused and they are fireing (sic) enployees
with long standing records as Red Toppers, without
consulting the advisory committee. Promotions are not
being given or offered to any Red Topper, instead
they are hiring men off-the street for the positions.
These are just a few of the quarrels (sic) that we
have with management. We want a representative (sic)
to come to Omaha so we can straighten out our
problems, and we would like to have someone sent as
soon as possible.
Williams referred this letter to Denne who, in response,
flew to Omaha and met with the night advisory committee
on February 26. In discussions at the meeting Respondent's
representatives (Denne, Florian, and Lassiter) gave to the
committee members explanations concerning various griev-
ances or other matters presented in the Tyler letter or
advanced by committee members at the meeting.' During
the meeting, Denne, obviously referring to the Tyler letter
to President Williams, instructed the committee members
to deal with Respondent's local management before taking
their problems to Respondent's head office in Denver.
On March 15, Lassiter formally succeeded Florian as
Respondent's hospital manager.10
On March 25 Lassiter and Night Supervisor-Trainee
Harold Starks inspected the work area committee member
Walton tended to and, according to Lassiter, found it
dirty. Accordingly, at Lassiter's instructions, Starks pre-
pared one of Respondent's standard employee evaluation
reports which, under Respondent's evaluation system, result-
ed in assigning a number of demerits to Walton. On March
31 Walton, after receiving this report," took it to Lassiter's
office, threw it on Lassiters desk, and asked Lassiter why
he had been given demerits. Lassiter told Walton it was
because his area had been found "cruddy." Walton then
banged his fist on a chair and on Lassiter's desk and
denied the "cruddy" charge, whereupon Lassiter discharged
Walton (for, Lassiter testified at the hearing, his insolent
conduct on this occasion). The committee intervened with
Lassiter on Walton's behalf and, following Walton's apology,
Lassiter rehired or reinstated Walton on April 2.
In the meantime, also on March 31, Svoboda, as chairman
of the night committee, sent to Respondent's President
Williams in Denver a telegram reading as follows.
CONTACT THE ADVISORY COMMITTEE
CHAIRMAN IN OMAHA BERGAN MERCY HOS-
PITAL.12
The telegram came into Denne's hands on April 1, whereup-
on he reached Svoboda by long distance telephone. In
the conversation, Denne, after asking Svoboda what the
problems were, inquired whether Svoboda had taken them
up with Lassiter. Svoboda said he had not, whereupon
Denne criticized Svoboda (i.e, the committee) for having
again gone over his head and that of Lassiter despite
the caution Denne had expressed in this regard at the
February 26 meeting Denne then told Svoboda to take
the problems up with Lassiter and, if they could not be
settled with Lassiter, to contact Denne Svoboda told Denne
he was sorry and the conversation ended.
On April 17, the night committee sent to Respondent's
head office a letter directed to President Williams' attention"
in which the committee requested a meeting with Williams
on or before April 25 and went on to state that it had
been unable to communicate with the local management
(meaning Lassiter) in regard to disciplinary action being
taken against "our members" and other "important" mat-
ters; that they were tired of "falsified promises" being
made by Lassiter14 and that unless something was done
to improve local management 's respect for "fellow Red
Toppers, we shall be forced to take due cause action whatever
may be necessary." In this connection, the letter added
that there was appended to it a list of employees who
Tyler testified that he sent this letter in January but the more
" Resp Exh 7
Resp Exh 2 Formally addressed to Respondent , the telegram
credible evidence, including the testimony of Denne, indicates that this stated it was directed to the attention of Mr Williams
letter was transmitted in February "GCExh5
' Matters advanced by committee members (and explained or otherwise
responded to by Respondent 's officials) at this meeting included (1)
an alleged deficiency in or misuse of committee funds by Respondent's
officials ; (2) the hiring of supervisor trainees from outside rather than
promotion from employee ranks, (3) the alleged January discharge of
Supervisor Hawkins, (4) the alleged attendance of Assistant Manager
Lassiter at committee meetings without a proper introduction (i e , I
gather, without a formal announcement to the employees of his managerial
position) and, somewhat inconsistently , the alleged "military" manner
in which Lassiter gave orders to the employees , (5) Lassiter 's alleged
lack of qualifications to correct employees in the performance of their
work, (6) some question raised by Tyler concerning an employee in
Respondent 's business office at the hospital
'° Florian was transferred to another locality There is some employee
testimony that Lassiter succeeded Florian earlier in March, which may
have been true as a practical matter, but I credit Respondent's evidence
that formal announcement of the change was made to the employees
on March 15
" In his testimony, Svoboda defined the alleged "falsified promises"
as consisting of Lassiter 's asserted failure to meet with the committee
(at stated monthly meetings-as provided in the committee 's bylaws-
or, it appears , on an ad hoc basis when committee members wished
to discuss some contemporary grievance) But Svoboda could identify
only one monthly meeting Lassiter missed (that of March 5) and, after
testifying that "there might have been a hundred different occasions"
when Lassiter refused to meet or was unavailable for ad hoc meetings
to consider "on the spot" committee complaints or inquiries , Svoboda,
when pressed for substantiating detail , could recall only one such specific
instance Quite plainly, Svoboda engaged in loose exaggerations and
unsubstantiated broad charges against Lassiter in this regard as he did
in other contexts Indeed , I have the distinct impression that both Svoboda
and Tyler looked upon their appearance as witnesses for the General
Counsel as presenting a golden opportunity to vent their spleen against
Lassiter and that this misconception of role as witnesses accounts in
part for the unreliability of their testimony as herein described in greater
detail (see infra)
RED TOP, INC.
had voted to back the committee "in regard to whatever
decision we have to make and that means all out if neces-
sary."15 The letter goes on to assert that relationships
between the committee and local management had become
unbearable under Lassiter's management and urged a change
in Lassiter's alleged disrespectful attitude so that he would
deal with the employees in a "meaningful sensible fashion."
With more along this line, the letter closed with the state-
ment that unless Williams took action to settle the "prob-
lems" the committee would take them to the hospital
authorities, from whom, the letter states, the committee
felt it could get more cooperation than it had been given
by Respondent.
At the end of or immediately following a meeting the
committee had with Lassiter on April 21, at which a
variety of committee complaints were discussed, Tyler told
Lassiter to notify Denne by telephone to be in Omaha
by April 25 or Tyler, apparently meaning the committee,
would take its complaints to the hospital administration."
By letter dated April 22," Denne made a conciliatory
reply to the committee's letter of April 17, in which,
after asserting Mr. Williams' eagerness to reply to the
committee, Denne stated he had insisted on handling the
matter himself; he reminded the committee that he had
met with it (presumably referring to the February 26 meet-
ing) and felt the problems then existing had been settled;
he pointed to the committee's failure to refer to "specific
cases" and urged the committee to prepare a list of any
and all matters and take them up with Lassiter at a meeting
"for discussion and decision"; he stated he would be in
Omaha soon and would review with the committee all
such items at that time, but again urged the committee
to take up all the employees' problems with Lassiter before
his (Denne's) arrival for a further review with the commit-
tee.18
On April 23, a meeting took place between the committee
and, on Respondent's side, Lassiter and Supervisor-Trainee
Starks. At this meeting Tyler inquired why Supervisor
" Such a list of employee signatures appears on the last page of
the letter
" In this conversation , Lassiter testified , he told Tyler that the committee
should not take their complaints to the hospital administration but should
give him a list of them Lassiter testified that he likewise told Svoboda
on April 22 to turn his complaints over to Lassiter, and that at both
the April 23 and 29 meetings (this latter meeting to be described below)
he requested the committee to furnish him with a list of its complaints,
but that he did not receive any list in response to these requests I
credit Lassiter 's testimony , partly because the purportedly contrary testi-
mony of Svoboda and Tyler is so unclear , confusing , or contradictory
as to be distinctly insufficient to establish , even of itself, whether or
when such a list was ever submitted and what it consisted of. In any
case , I find that no such list was provided pursuant to the requests
Lassiter made following the committee 's April 17 letter to Mr Williams.
G C Exh. 6
" Lassiter had a talk with Svoboda on the evening of April 22 in
which he told Svoboda that as chairman of the night committee he
ought to run the proceedings and should see that the committee was
more respectful to "management ." According to Lassiter , Svoboda agreed
but remarked to Lassiter ". . you know the circumstances as well
as I do." The next morning April 23, Lassiter found on his desk Svoboda's
resignation as chairman , a resignation which Svoboda told Lassiter later
on that day he had withdrawn at the behest of his follow committee
members
995
Hawkins had been discharged (in January)" and employee
Hernandez more recently (in March). As to the Hernandez
case, Tyler further stated, as I find on the basis of Lassiter's
and Starks' testimony, that it was a good thing that Hernan-
dez had not come back to the hospital, because if he
had he would have attacked Lassiter.20 According to Lassi-
ter, at this meeting Tyler also said that Lassiter's having
described Walton's work area as "cruddy"21 could result
in Lassiter's being attacked by Walton and when Tyler
made this statement Walton shook his head in an affirmative
fashion and smiled. Tyler denied having made such a state-
ment regarding Walton but I credit Lassiter's testimony
that he did.22 Lassiter's testimony in this respect is supported
by that of Supervisor-Trainee Starks, with whose demeanor
I was favorably impressed. Starks also confirmed Lassiter's
testimony that when Tyler made reference to a possible
attack on Lassiter by Walton, Walton "nodded and
smiled." I credit Lassiter's and Starks' testimony in regard
to Walton's reaction to Tyler's statement.23 Likewise atl the
April 23 meeting, Tyler told Lassiter that there had been
better managers than he, that Lassiter's service in the U.S.
Navy did not impress him, and con. 'lained of Lassiter's use
of naval terms , like "shipmate," in addressing employees.24
On a date which I find was April 24, Denne telephoned
to Lassiter, expressed his displeasure with Svoboda's having
again gone over Lassiter's and Denne's heads (via the
April 17 letter supra), told Lassiter he would be in Omaha
on April 30, and also told Lassiter to instruct Svoboda
not to contact the hospital authorities but to give Lassiter
a list of the committee's complaints. During this conversa-
tion, Lassiter told Denne about the events transpiring at
" At the February 26 meeting previously referred to, the committee
had been advised that Hawkins had not been discharged but had quit
following the January hospital inspection made by Williams and Denne.
10 In his initial testimony as part of the General Counsel's main
case, Tyler on cross-examination denied having made such a statement
to Lassiter at this meeting However, recalled as a rebuttal witness
of the General Counsel after Lassiter had given his testimony, Tyler
admitted that he had had a telephone conversation with Hernandez
in which Hernandez uttered such a threat and that he had repeated
to Lassiter at the April 23 meeting the threat Hernandez had made
concerning Lassiter
See supra.
d2 Not only because of the retraction Tyler made of his similar denial
concerning the Hernandez threat, but also because his testimony is in various
respects confusing, uncertain, hesitant, etc , and because his demeanor made
an unfavorable impression on me, I consider Tyler a generally untrustworthy
witness on important points of fact
2' While Walton testified as a witness for the General Counsel, he was
asked no questions on this subject during his testimony, and hence there is no
contradiction by him of the testimony of Lassiter and Starks
24 Also at this meeting the committee inquired of Lassiter why he had not
rehired a night-crew employee named Hadyuk, whom Lassiter had
discharged on April 15 for, according to Lassiter's description, assaulting an
employee of the "laundry", i e , not an employee of !Respondent At the
April 23 meeting, Lassiter informed the committee of the matter, i e , that he
had referred it to the day committee because the night committee had not
adequately looked into the facts and further, that he had introduced the
person Hadyuk had allegedly assaulted to Henderson of the night committee,
so that Henderson could present him to the night coipmittee for questioning
concerning the incident and for an ensuing recommendation as to whether
Hadyuk should be reinstated or remain discharged (Lassiter further testified
that following a later corresponding recommendation by the day committee
he had reinstated Hadyuk on April 25 )
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the April 23 meeting and told Denne he was thinking
of firing Tyler, Walton, and Svoboda. Denne told Lassiter
he had authority to do so if he chose and such action
was agreeable to Denne, but this matter was put in suspense
by Lassiter telling Denne he would hold off until Denne's
arrival on April 30 and see how matters progressed in
the meantime.
On April 28, an incident arose between Lassiter and
Tyler arising from Tyler's failure to report for work on
Sunday, April 27 As background, Tyler was on authorized
leave from February 17-April 21, and on his return was
assigned to a cleaning area different from the one he had
had prior to going on leave. According to Lassiter and
Starks, Tyler's new assignment required him to work on
Sunday (whereas on his previous assignment Sunday was
a day off for Tyler). Further, according to Starks, he
had informed Tyler, when he returned from leave, as to
his new schedule of work days and days off, and that
identical information was shown on Respondent's work
assignment "board." Starks further testified that Tyler had
given no notice that he would not work on Sunday, whereas
Tyler testified that he had informed Starks in advance
that he would be absent on the Sunday in question because
of some "church" engagement. Tyler did not report for
work on Sunday and as a result Lassiter "pulled" Tyler's
timecard on Monday. This action brought Tyler to Lassiter's
office Monday afternoon where, after Tyler asked about
his card and Lassiter said he had "pulled" it so as to
be sure to see Tyler, Lassiter asked Tyler why he had
not worked on Sunday. For his part, Tyler complained
that the proper way for Lassiter to arrange to see an
employee was by putting a "work order" on the employee's
timecard. Tyler then asked if there could be a meeting
of the committee with Lassiter on the 29th, and Lassiter
agreed. Tyler then snatched his card from Lassiter's desk,
went out and punched it in , and then returned to put
the card on Lassiter's desk.
The committee met with Lassiter and Starks again on
April 29, as Lassiter and Tyler had arranged on the 28th.
The following were features of this meeting:25 (1) Svoboda
stated that Tyler had not been informed of the change
25 The following findings of fact as to what transpired at this April 29
meeting are made after consideration of all the pertinent testimony,
including that of Lassiter , Starks , Tyler , and Svoboda, the main witnesses
On various points, there are conflicts or divergences between the testimony
of Lassiter , or Starks , on the one hand, and that of Tyler or Svoboda, on the
other , and in these instances I have credited the testimony of Lassiter and/or
Starks I have done so for various reasons, such as because the testimony of
Lassiter and Starks is generally precise, clear, consistent, and in line with the
probabilities as I view the surrounding circumstances , and because in regard
to this meeting , and otherwise in their testimony , Svoboda and Tyler
frequently gave confusing , uncertain , erroneous , or contradictory testimony,
and demeanorwise made an unfavorable impression upon me (i consider it
unnecessary to prepare a detailed compendium of the record instances
demonstrating these characteristics of the entire testimony of Svoboda and
Tyler, since they will be readily apparent to any conscientious reader of their
entire testimony I may, however, note that various of these instances are
documented in Respondent ' s brief ) In short , where there are clear
contradictions as between Respondent ' s witnesses and those of the General
Counsel concerning this meeting , I consider Respondent ' s witnesses the more
reliable and trustworthy , as, indeed , I generally do in respect to other points
of fact
in his day off;26 (2) Tyler told Lassiter he would not
work on Sundays, Lassiter replied that in that event he
would fire Tyler, and Tyler said if that happened he would
take Lassiter and others with him; (3) when Tyler remarked
that Svoboda had not signed certain minutes of committee
meetings (apparently prepared by Lassiter) and Lassiter
had said he had based the minutes on handwritten notes
prepared by Svoboda, Tyler called Lassiter a "liar," asserted
that Lassiter had no such notes from Svoboda but was
merely typing up whatever he saw fit;27 (4) Tyler asked
when Supervisor-Trainee Starks was to become a supervisor
and, in this connection, warned Starks to be careful or
he would get the same treatment others had (i e., lose
his job); (5) at the request of some committee member
the terminations of Supervisor Hawkins and employee Her-
nandez, were explained again (see supra) presumably by
Lassiter; (6) in connection with Lassiter's statement that
he had referred some matter to the day committee, Svoboda
lost his temper, banged the desk, and uttered an exclamation
to the general effect that he was "goddamn sick and tired"
of hearing the day committee referred to;" and (7) the
committee brought up a couple more matters not necessary
to describe here
Regional Director Denne arrived in Omaha on April
30 and met with Lassiter. According to their testimony,
Lassiter informed Denne of the difficulties he had been
having with Tyler, Walton, and Svoboda since their tele-
phone conversation of the 24th, told Denne he wanted
to discharge them, the two agreed that this should be
done, and Lassiter fixed the next day, May 1, as the
time for their discharges.
On May 1, Lassiter pulled the timecards of Svoboda,
Tyler and Walton. Svoboda arrived for work first and,
with his card missing from the rack, proceeded to Lassiter's
office where, with Denne also present, he was told he
was discharged. Later Tyler and Walton arrived and because
their cards had been pulled Svoboda told them they were
discharged.29 Thereafter, Svoboda, Tyler, and Walton,
accompanied by a number of the night-shift crew, gathered
in the area near Lassiter's office, where Lassiter told the
entire group why the three had been discharged.30 It was
then suggested by Tyler, and perhaps others in the employee
group, that there be a meeting of the employees with
Denne and Lassiter to hear the employees' complaints,
which Denne and Lassiter agreed to. However, as this
26 If this were so, there would seem to have been no reason for Tyler to
notify Starks in advance , as Tyler claimed he had , that he would not be in on
Sunday
27 Lassiter testified that during this meeting , Svoboda first denied that he
had written the notes in question but when Lassiter showed to Svoboda the
actual notes Lassiter had used to prepare the minutes in question Svoboda
admitted to Lassiter that he had written them ' 1 credit Lassiter's testimony
28 Svoboda denied that he pounded on the desk or used any swear words at
the April 29 meeting, but admitted he had banged Lassiter's desk on some
earlier occasion in some other context At various points in his testimony he
had differing recollections as to the date of this earlier occasion My
conslusion is that if there were such an earlier incident it was in addition to
the one on April 29
29 According to Tyler, he proceeded to Lassiter 's office where Lassiter told
him the reasons for the discharge of each man
30 In the meantime, committee members Henderson and Barr had met
with Lassiter and Deene in Lassiter's office discussing the three terminations
and Respondent ' s reasons therefor
RED TOP, INC
meeting was in process of being convened in a room on
another floor, Tyler twice inquired if he (or the three)
were discharged and after being told the second time that
this was the case, he said to the assembled employees
"Let's go" and the three dischargees and a number of
others of the crew left, thus aborting the meeting. The
estimates vary as to the number of employees who left
the premises that evening in a protest of the discharges."
Committee member James Barr, who was among the
May I strikers, told Lassiter in a telephone call on May
3 that he wished to return to work. Lassiter told Barr
to come back on Monday, May 5, which Barr did. When
he reported to work, he found his card pulled and conferring
with Lassiter, was informed that Lassiter had been told
by Respondent's head office "not to hire any of the men
back." Lassiter told Barr to call back in 30 days but
when Barr did so Lassiter told Barr he needed more time.
There was no further contact between the two.32
Lassiter testified that (1) he discharged Tyler for "insubor-
dination and disrespect , threatening me, calling me a liar,
and daring me to fire him";(2) Walton for "insubordination
and disrespect going back to the March 31 incident, and
also the recent incident where he concurred fully with
Mr. Tyler that I would be physically struck or could
be as a result of having called his area cruddy"; and
(3) Svoboda for "insubordination and disloyalty, insubordi•
nation , he was banging on his desk and not adhering
to my policy and the company policy of not going to
the hospital administration with their problems."
Lassiter testified that when he determined to discharge
the three he had no knowledge that a union organizing
campaign was then in progress, which brings me to the
General Counsel's evidence on this aspect of the case.
Based on the testimony of witnesses for the General
Counsel, I find that on April 23 Svoboda telephoned a
Mr. Stocker, an AFL-CIO field representative, inquiring
if Stocker could assist in forming a union , and the two
agreed on a meeting at the hospital on the evening of
April 25; at that time, Stocker and a Mr. Costello of
the Building Service Employees union met in a third floor
room of the hospital with Svoboda, Tyler, Henderson, and
Barr; that at this gathering, the committee members were
given union cards which they began passing out that night
among the employees for signature; and that, running out
of cards Svoboda requested and received additional ones
on Monday, April 28.
Coming now to the more crucial question, i.e., Respond-
ent's knowledge of this activity, as has been stated Lassiter
denied that he had any such knowledge at the time he
determined to discharge the three committee members.
In support of his contrary view, the General Counsel offered
two bits of testimony.
31 After the abortive meeting, some of the employees, and Lassiter and
Denne, had separate conferences with the Sister in charge of the hospital
administration
12 Respondent offered no testimony concerning Barr's case But in the
context of Barr's entire testimony concerning his conversation of May 5 with
Lassiter it is clear that Lassiter's inquiry of Barr as to why he had walked out
on May I was not coercive, and this count of the complaint should be
dismissed
997
First is the testimony of Svoboda that on April 28
he was told by one Levi Morgan (alleged by the General
Counsel to have supervisory status) that "somebody had
turned in a union card on Mr. Dewey West's" desk and
Mr. West in turn took the card to Mr. Lassiter's office."
Although in his direct examination Svoboda unqualifiedly
fixed April 28 as the date of his conversation with Morgan,
on cross-examination he did "not recall exactly" the date
but expressed the belief that it was two days before the
discharge, i.e., April 29. Reminded that his pretrial statement
stated the conversation was the day before his discharge,
i.e., April 30, he again did not "recall exactly." Later
shown his pretrial affidavit, which fixes the date of the
conversation as April 30, Svoboda stated that the affidavit
was correct.
Respondent put Morgan on the stand and through his
testimony and timecard established that Morgan did not
work or appear at the hospital on either April 29 or
30. Morgan further denied that he had any conversation
with Svoboda on April 30 (the date Svoboda finally gave)
concerning union cards. In the circumstances, and bearing
in mind Svoboda's frequent unreliable testimony in other
respects, I credit Morgan's testimony and decline to find,
on the basis of Svoboda's testimony that Lassiter had knowl-
edge of the union activity on any of the varying dates
Svoboda gave for the alleged conversation.34
Of course, even if Lassiter had knowledge of the union
activity the General Counsel would still need to adduce
evidence sufficient to establish that Lassiter resented this
activity and for this reason was motivated to discharge
Svoboda, Tyler, and Walton, and to refuse reinstatement
to Barr. The General Counsel had failed to meet this
evidenciary burden. The General Counsel relies in this
regard exclusively on some brief testimony of an ex-employ-
ee, George Duchman, who was an employee on the day
shift (11 a.m. to 5 p.m.) during the period in question.
Duchman testified that in an encounter with Svoboda on
Monday, April 28, he signed a union card and was given
a few more which he handed out to employees the next
day. Duchman further testified that two or three days
after he signed his card, which would have been on April
30 or May 1, and as he was going to punch the timeclock,
Lassiter came out of his nearby office and said to him
"Red Top is a nonprofit organization, if the union comes
in, you are out." Without more, Duchman testified, Lassiter
and he went their separate ways.
On cross-examination, Duchman denied that he had given
any written or signed statement to an agent of the Board,
that he had ever talked to such an agent prior to giving
his testimony; or that he had ever discussed his testimony
33 West was the day-shift assistant manager and, as such, a supervisor
14 Of course, even if I credited Svoboda's testimony it would not
necessarily follow that a union card taken to Lassiter's office came to his
attention Moreover, to the extent that the strength of the General Counsel's
reliance on this hearsay testimony depends on Morgan being a supervisor,
that reliance is misplaced because the evidence before me fails to establish
that Morgan's duties and responsibilities as "officer coordinator" bring him
within the Act's definition of supervisor Rather, the wordy description of his
job G C Exh 2) and his testimony establish that he is essentially a clerical
dr office employee lacking genuine supervisory functions, responsibilities, or
authorities Indeed, he is no more a supervisor than "Chief Area Technician"
Tyler (see G C Exh 2), who admittedly is not one
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with anyone before taking the stand. As this testimony
was given, counsel for the General Counsel, at the request
of Respondent's counsel, produced a written statement
signed and sworn to by the witness on October 7, 1969,
just a month earlier.
Duchman was then subject to considerable cross-examina-
tion as to the time of his asserted conversation with Lassiter.
Utilizing the day he signed his card (Monday, April 28)
as a point of reference he variously stated that, to the best of
his recollection, the conversation took place "two or three
days later," or in "the first of the week" (meaning the
period April 28-30), although when asked if the
conversation could have occurred on Thursday (May 1), he
have the qualified response "Idon't think it was that far
along."
On his redirect examination by counsel for the General
Counsel, Duchman first stated that he thought that "last
night" was the first time he had seen Mr. Auslander,
counsel for the General Counsel. Then asked if he had
ever seen Mr. Auslander before, the witness replied "I
think maybe once" which he placed as about a month
ago, and further testified that Mr. Auslander took his
statement on that earlier occasion. The Trial Examiner
then called Duchman's attention to his denials on direct
examination of ever having talked to or given any statement
to a Board agent and offered the witness an opportunity
to explain his initial testimony. Duchman replied that he
"got mixed up on the questions, and didn't understand,
but I did talk to Mr. Auslander."
After thorough consideration of the matter, I have con-
cluded that I should not accept Duchman's testimony as
sufficient to establish that Lassiter uttered the words Duch-
man attributed to him. In reaching this conclusion I have
borne in mind the fact that Lassiter, who testified after
Duchman, was not questioned concerning Duchman's testi-
mony. On the other hand, I find it hard to believe that
Lassiter uttered the sentence attributed to him by Duchman
since , as I view the matter, it does not make sense . Respond-
ent is not a nonprofit organization and, if it were, that
status would provide no basis for the alleged threat which,
-according to Duchman's testimony, Lassiter hinged on
Respondent's asserted nonprofit status. Assuming that Lassi-
ter said something to Duchman, I believe that Duchman
did not hear or accurately report what Lassiter said. In
this connection, I am also struck by the fact that there
is no evidence of any other antiunion statement or conduct
by Lassiter. If Lassiter knew of and were disposed to'
oppose the union movement, the probabilities are that he
would not have been content with a single, passing, and
partially nonsensical remark to a single employee. For
this reason also, I am not persuaded that Lassiter made
the brief and bare statement Duchman testified to.
Moreover, other testimony of Duchman raises serious
questions as to his general credibility. For well-known
reasons, I might be inclined to attach no particular signifi-'
cance to his denial that he had ever discussed his testimony
with anyone, if that were all there were to consider. But
I deem the situation rather different when a witness in
a federal proceeding denies ever talking to or giving a
statement to a representative of the federal agency which
initiates the proceeding in which he testified, with knowl-
edge, as I find was the case here, that his testimony is
false. For there can or should be little possible implication
of there being something wrong in having talked to or
having given evidence to a federal official in respect to
a question of compliance with federal law. In any event,
my concern in this regard coupled with my inability to
believe that Lassiter uttered the precise words Duchman
attributed to him, leads me to find, as I do, that there
is insufficient credible evidence to warrant a finding that
the alleged statement was made
Based on the foregoing and on the record as a whole
I find the evidence insufficient to sustain the complaint's
charge that Respondent discharged the three and refused
to reinstate Barr, because of their activities in support
of the Union.35 Accordingly, I will recommend that these
charges of the complaint be dismissed, as well as the
alleged threat of discharge to Duchman.
This brings me to the question whether the evidence
sustains the General Counsel's other charge that Respondent
discharged Svoboda, Tyler, and Walton because of their
"protected concerted activities"; i.e., their legitimate activi-
ties as committee members. Respondent contests this allega-
tion, asserting that the three were discharged for gross
insubordination, undue harassment of management, and
other intolerable conduct which, while committed in the
cause of their concerted activities as committee members
in dealing with Respondent, went beyond the limits of
those concerted activities which are considered "protected"
by Sections 7 and 8(a)(1) of the Act. I agree with Respond-
ent.
Viewing separately the individual conduct of these three,
Respondent was clearly entitled to discharge Tyler for
a variety of conduct which Section 7 is not designed to
protect, i.e., his threats of assault on Lassiter (albeit at
the hands of Hernandez and Walton); his threat to take
Lassiter and others with him if he were discharged on
proper grounds, i.e., refusing to work on Sundays; his
calling Lassiter a liar without reasonable justification; the
implied reflection on Lassiter contained in his warning to
Supervisor-Trainee Starks that Starks would not last long
if promoted to supervisor; his going over Lassiter's head
by demanding, to Lassiter, that Denne come to Omaha
by a certain date; his gratuitous reflections on Lassiter's
competence and military service; and his threats to complain
concerning the local management (Lassiter) to the hospital
authorities, a course which, if taken (as it eventually was)
could imperil Respondent's source of business.
In short, in the conduct of committee affairs, at meetings
and elsewhere , Tyler engaged in impertinent, insulting, dis-
respectful, disloyal (to Respondent's commercial interests),
and threatening conduct. It is not necessary to tolerate
conduct such as this to enable the collective-bargaining
process or grievance procedures to function effectively;
hence, his conduct falls outside the range of concerted
activities considered "protected" by the Act.
As to Walton, he not only remained silent when Tyler
told Lassiter of the possibility that Walton would assault
iS In making this finding, I have taken into account the fact that
committee members Barr and Henderson, who attended the April 25
meeting with the union representatives, were not included in the May I
discharges
RED TOP, INC.
him, but in effect, affirmatively confirmed the reality of
the threat by his head movement and facial expression.
And as to both Walton and Svoboda, Lassiter could well
have assumed that various of Tyler's verbal lacerations
of Lassiter represented their views as well , since the remarks
were made at committee meetings and were uttered without
protest or disagreement on their part. Moreover, they too,
as committee members were responsible for the threats
to complain to the hospital authorities to the prejudice
of Respondent 's retainer by the hospital . For these reasons,
I consider Tyler , Svoboda, and Walton all factually tarred,
in the main, with the same brush.
Indeed , as I view the record and as Respondent contends,
the committee set out , from the time of Lassiter 's promotion
to the manager post , on an intensive and multiform program
of harassment , the objective of which was to bring Lassiter
down and somehow to install a manager of their liking,
and which as its method of operation involved attacks
of all sorts on Lassiter and other actions of the kind
previously described . Plainly , these tactics were designed
to and did undermine Lassiter 's authority as manager to
such a degree as to require Respondent , clearly faced with
the prospect of their continuation , to decide whether it
would be Lassiter or the offending committee members
who would remain in its employ at the hospital . I conclude
that the actions of Tyler, Svoboda, and Walton exceeded
the bounds of the broad area of conduct which the Board
holds should be tolerated in the interest of safeguarding
the collective-bargaining and grievance procedures encour-
aged and protected by the Act. I will, therefore , recommend
dismissal of the complaint 's allegation that Respondent
dismissed these three because of concerted activities which
the Act protects.36 Accordingly, the resulting walkout of
other employees was not an unfair labor practice strike.
This brings me to the final allegation, i.e., that Respond-
ent's failure (refusal , as I find) to reinstate committee
member Barr violated the Act, i.e., was based on his protect-
ed activities in go___. on strike in protest of the three
discharges . As previously stated , Respondent offered no
96 While Lassiter in explaining the discharges of SvoLoda and Walton
referred , in Svoboda' s case , to his outburst and related intemperate acts at
the April 29 meeting and , in Walton's case , to his similar conduct at the time
of his March 31 discharge, Lassiter 's total specifications as to the reasons for
these discharges and that of Tyler ( insubordination , disrespect , disloyalty,
not going to the hospital administration , etc ) and Respondent's
corresponding explanations (see tr 81-83, 84 , 86) and evidence adduced at
the hearing establish that Respondent 's reasons encompassed the broader
range of conduct of these three considered in my findings above
999
evidence in Barr 's case , other than Lassiter 's testimony-that
he considered that those like Barr who had gone on strike
had quit, with the accompanying implication that
Respondent had no further obligation to Barr . Thus the
evidence warrants a finding that Respondent , in refusing to
reinstate Barr , did so because he had gone on strike. But
Barr 's participation in the strike was "protected" concerted
activity under Section 7 of the Act, and his termination for
this reason was a plain violation of Section 8(a)(1) of the
statute."
CONCLUSIONS OF LAW
1. By refusing to reinstate and thus terminating the
employment of James Barr because he engaged in lawful
strike activity , Respondent has engaged in an unfair labor
practice in violation of Section 8(a)(1) of the Act.
2. The aforesaid is an unfair labor practice affecting
commerce within the meaning of Section 2(6) and (7)
of the Act.
3. Respondent has not engaged in any other unfair labor
practices alleged in the complaint
THE REMEDY
My Recommended Order contains the usual injunctive
and notice posting provisions suitable to the case. In addi-
tion , the order requires Respondent to offer to Barr immedi-
ate and full reinstatement to his former or a substantially
equivalent position , without prejudice to his seniority or
other rights and privileges , and to make him whole for
any loss of earnings he may have suffered by reason of
the failure to reinstate him by payment to him of a sum
of money equal to that which he normally would have
earned as wages from the date of the failure to reinstate
him to the date of Respondent 's offer of reinstatement,
less his net earnings during such period, with backpay
and interest thereon computed in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
[Recommended Order omitted from publication.]
17 Moreover , as an economic striker who applied for reinstatement Barr
was entitled to his job in preference to any later replacements under
governing decisions of the Supreme Court and the Board See N L R B v
Fleetwood Trailers Co , Inc, 389 U S 375, The Laidlaw Corporation, 171
NLRB No 175, enfd 414 F 2d 99 (C A 7)