Reef Industries

National Labor Relations Board - Board Decisions

Dec 21, 1990

300 N.L.R.B. 956 (N.L.R.B. 1990)

956
300 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 In agreeing with the judge’s conclusion that employee Dillard’s discharge
violated Sec. 8(a)(1) of the Act, we find it unnecessary to rely on the judge’s
finding regarding the probable inaccuracy of the testimony of the Respondent’s
personnel manager at the representation hearing regarding the employees’ edu-
cational level. As the judge noted, the correctness of the employees’ opinion
regarding the accuracy of the Respondent’s testimony is irrelevant. We also
find it unnecessary to pass on the judge’s finding that the letter and cartoon
themselves ‘‘were part of an employee attempt to get the Respondent to accept
the election results,’’ since the letter and cartoon were a part of, and related
to, the ongoing labor dispute.
1 All dates are in 1989 unless otherwise stated.
2 The transcript spells Schultz’ name ‘‘Schulz.’’ However, a complaint alle-
gation concerning her supervisory status spells it ‘‘Schultz,’’ and Respondent’s
answer admits the allegation without any change in name. I accept this spell-
ing as correct.
3 The pleadings establish that Cameron, Schultz, and Nykiel were super-
visors and agents of Respondent within the meaning of the Act.
4 Plant Manager Nykiel’s estimate.
5 Personnel Manager Schultz’ estimate.
Reef Industries, Inc. and Amalgamated Clothing
and Textile Workers Union, Southwest Re-
gional Joint Board. Case 16–CA–14283
December 21, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 15, 1990, Administrative Law Judge How-
ard I. Grossman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision and in answer to the Respondent’s ex-
ceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings,1 and
conclusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Reef Industries, Inc., San
Benito, Texas, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Guadalupe Ruiz, Esq., for the General Counsel.
Kerry E. Notestine, Esq. (Bracewell & Patterson), of Hous-
ton, Texas, for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on October 24, 1989,1 by Amalgamated
Clothing and Textile Workers Union, Southwest Regional
Joint Board (the Union), and complaint issued on December
1. It alleges that Reef Industries, Inc. (Respondent or the
Company), on October 18, discharged employee Mark Dil-
lard because he concertedly complained to Respondent about
disparaging remarks concerning employees, and the attitude
toward them, on the part of Respondent’s personnel manager,
in order to discourage employees from engaging in such con-
certed activities for the purpose of mutual aid or protection.
In so doing, the complaint alleges, Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act).
A hearing was held before me on these matters in Browns-
ville, Texas, on February 22, 1990. On the entire record, in-
cluding briefs filed by the General Counsel and Respondent,
and on my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with facilities at
San Benito and Houston, Texas, in which it is engaged in
the manufacture of plastic and its fabrication into customized
covers for industry. During the 12 months preceding issuance
of the complaint, a representative period, Respondent pur-
chased and received at its San Benito, Texas facility goods
and materials valued in excess of $50,000 directly from
points located outside the State of Texas. Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. The Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations and Structure
The Company produces plastic at its Houston facility and
ships it by company truck to San Benito for fabrication and
customizing. The company president, Philip Cameron, and
the personnel manager, Diane Schultz,2 were located at
Houston. John Nykiel was the plant manager at San Benito,3
and Ruth Lotta was the assistant personnel manager, report-
ing to Personnel Manager Schultz in Houston. Respondent
ran three shifts at San Benito, each with a supervisor who
reported to Nykiel. The Company had a total of approxi-
mately 1104 to 1205 employees at San Benito.
B. The Board Election and Hearing on Objections—
Schultz’ Testimony
A union campaign began in July. Dillard attended a union
meeting on July 19 and signed a union card. A Board elec-
tion was scheduled for September 14, and Dillard wore a
union T-shirt prior to that date and on the day of the elec-
tion. According to Dillard, Personnel Manager Schultz ‘‘at-
tended meetings prior to the union election and talked to em-
ployees about union activities.’’ Armando Aguirre was a
957REEF INDUSTRIES
6 The record shows only that Aguirre was an ‘‘observer.’’ However, it also
indicates that he was cross-examined by union counsel at the subsequent hear-
ing on objections, and I infer from this fact that he was a company observer.
7 R. Exh. 3.
8 R. Exh. 4.
9 G.C. Exh. 5.
10 Subsequent to her appearance at the objections hearing, Schultz testified,
she consulted her records and ascertained that the ‘‘average’’ educational level
of those San Benito employees who had indicated same was at the 10.7 grade
level.
Schultz prepared a summary of her records on February 20, 1990, for the
unfair labor practice hearing, showing educational levels of San Benito em-
ployees. Although Schultz stated that some listed employees were no longer
employed at the time of the hearing, and others not listed had been added
since October, she declared that the summary correctly stated the educational
levels as of October 1989. The list itself shows 108 names, 11 of which do
not state any educational level. Of the 97 employees with listed educational
levels, 60 indicated that they either had a high school diploma or a ‘‘GED’’
(R. Exh. 4). 11 G.C. Exh. 3.
12 G.C. Exh. 4.
company observer at the election.6 The election was won by
the Union, and a hearing was held on Respondent’s objec-
tions to the election. The parties stipulated that the hearing
was held on October 14, but witnesses for both parties stated
that it was on October 11. Schultz was the company rep-
resentative at that hearing, and Aguirre was a witness.
Schultz testified that there had been ‘‘confusion’’ during
the election. On cross-examination of Aguirre during the ob-
jections hearing, union counsel asked him to state his edu-
cational level—according to Schultz, this was a union at-
tempt to establish that Aguirre was not sufficiently educated
to handle the alleged ‘‘confusion.’’ According to a transcript
of the hearing, Aguirre replied that he completed the 12th
grade but did not graduate.7 Schultz stated at the unfair labor
practice hearing that Aguirre, at the prior hearing, also testi-
fied that he obtained a ‘‘GED,’’ the equivalent of a high
school degree. The record in this case does not contain a
copy of this particular testimony, and Aguirre did not testify
in the current hearing. Respondent submitted a list of em-
ployees with educational levels, and Aguirre is stated to have
a ‘‘GED.’’8
Personnel Manager Schultz was then asked by the com-
pany attorney at the objections hearing to state the average
education of the San Benito employees. Union counsel ob-
jected to the question, and the company attorney replied that
he ‘‘just wanted to show that (Aquirre) was more educated
than most of the other people at the company.’’9 Schultz re-
plied that the average was probably at the 10th grade level.10
C. Employee Reaction to Schultz’ Testimony at the
Objections Hearing—Preparation of the T-shirt
Cartoon and Letter to Schultz
Dillard was a warehouseman at San Benito, and Oziel
Trevino was a shipping and receiving clerk. Both were sub-
poenaed by the Union to appear as witnesses at the objec-
tions hearing, and, together with other employees, were out-
side the hearing room when Schultz testified. Subsequent to
that testimony, an individual in the hearing room reported to
employees outside that Personnel Manager Schultz testified
the employees had a 10th grade education. This report did
not include the fact that the education issue had first been
raised by the Union.
Dillard testified that Schultz’ testimony ‘‘insulted’’ him,
and that about 12 employees made similar statements to him.
He had a GED himself and other employees had high school
degrees. Dillard stated on cross-examination that Schultz’
statement was related to working conditions at the plant be-
cause of ‘‘the treatment prior and during the union campaign
. . . The statement said that the employees had no idea what
(they) were doing as far as deciding whether we wanted the
Union or not.’’
Oziel Trevino averred that he and other employees were
‘‘shocked,’’ ‘‘angry,’’ and ‘‘upset,’’ and made ‘‘[s]tatements
ranging from the mistreatment that has accumulated over the
years, plus this.’’ The ‘‘whole plant heard about it (and) it
upset everyone in the plant.’’ Former employee Edward Flo-
res, a high school graduate, stated that the Company had
been ‘‘taking things away’’ from employees and treating
them ‘‘like children.’’ Schultz’ testimony ‘‘upset (him) a
great deal.’’ Asked by company counsel why the employees
objected when Schultz was merely responding to the edu-
cational issue raised first by the Union, Flores answered, ‘‘I
still believe that it shouldn’t have been phrased like that.’’
Trevino testified that, a few days after the objections hear-
ing, an employee suggested that Trevino ask Dillard to pre-
pare a cartoon to be placed on a T-shirt and sent to Houston.
Dillard was a cartoonist, and had previously distributed car-
toons in the plant. Trevino agreed, approached Dillard, and
the two of them worked on a draft of a letter. Dillard did
further work on the letter at home, and prepared a cartoon
on a T-shirt. He showed both of them to Trevino on October
16. The letter reads as follows:
Dearest Diane,
We here at REEF appreciate your comment made at
the hearing October 11, 1989, on behalf of our men-
tality. As a result of such a flattering, unbiased state-
ment. We here at REEF feel it is in order to present
you with this token of our esteem graditude [sic].
We hope you value it and cheerish [sic] it, as much
as we value your opinion of us.
Sincerely,
S.B. REEF EMPLOYEES
P.S. Flattery will get you nowhere!11
The cartoon on the T-shirt portrays a strange-looking,
cross-eyed individual suggesting low intelligence. Sur-
rounding this figure, in letters occasionally written back-
wards, is the legend: ‘‘Don’t Ask Me! Duh. I Dunno? I’ve
Got a 10th Grade Education.’’ The legend ‘‘MAD
ODDSCENCES (C) ’89 ‘‘also appears on the cartoon in
smaller print.’’12
Dillard and Trevino made a copy of the cartoon on the T-
shirt, and showed this copy and the letter to other employees
in the plant. They approved, and agreed that the T-shirt and
letter be sent to Houston.
Trevino affirmed that the purpose of the letter was ‘‘to see
if she (Schultz) could take an insult the way we felt in-
sulted.’’ However, he and Dillard took care to exclude ‘‘bad
words or any really derogatory statements.’’ Edward Flores
testified that Dillard showed him the letter, and that he and
another employee agreed that it should be sent to Houston.
On cross-examination, Flores denied that the employees
wanted to ‘‘get back’’ at the personnel director. Asked
whether the T-shirt and letter made Schultz ‘‘look bad,’’ Flo-
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 G.C. Exh. 2.
res replied: ‘‘Not really, it didn’t make her look bad. No, her
remark made her look bad.’’
Dillard handed the T-shirt and the letter to Trevino in a
box with Schultz’ name on it. A truck was leaving for Hous-
ton that night, and, Trevino, as shipping clerk, gave the box
to the driver.
A copy of the letter was posted on the bulletin board, and
a copy of the cartoon inserted under Plant Manager Nykiel’s
office door. Former employee Flores testified that it was ‘‘all
over the plant.’’ His own supervisor ‘‘knows what’s going
on every minute of the day in that plant (and) must have
been blind if he did not know what was going on.’’
D. The Company’s Investigation and Discharge
of Dillard
1. Summary of the evidence
Personnel Manager Schultz testified that she was
‘‘shocked’’ upon receipt of the T-shirt with its cartoon, and
the letter. She considered it to be a ‘‘put-down’’ and ridicule
of management with respect to her testimony at the objec-
tions hearing, which was given ‘‘very honestly.’’ The car-
toon was ‘‘discrediting to (her) ability to supervise and man-
age.’’ Houston employees saw the cartoon and laughed at it.
Schultz stated that she assumed that the T-shirt was from
Dillard because of his initials, ‘‘MAD,’’ on the shirt. She
also assumed that the letter came from Dillard, because it
‘‘accompanied’’ the T-shirt. However, Schultz agreed that,
on the basis of the language of the letter—‘‘We here at
REEF,’’ and the signature, ‘‘S.B. REEF Employees’’—a rea-
sonable person would assume that more than one person was
involved.
Schultz affirmed that she first called San Benito Plant
Manager Nykiel, and asked him whether he was aware of the
material. Nykiel replied that a copy of the cartoon had been
placed underneath his door. According to Schultz, she asked
Nykiel whether he thought Dillard had designed the cartoon,
and directed him to talk to other employees and ‘‘to inves-
tigate and see if he could find out who was involved in
this.’’ Nykiel gave a slightly different version of this con-
versation. He testified that Schultz asked him to locate other
cartoons which Dillard had drawn, and to ‘‘fax’’ them up to
her. Nykiel was able to do so, and Schultz sent him a copy
of the letter by the same means. Nykiel did not specifically
testify that Schultz instructed him to find out who was ‘‘in-
volved’’ in the matter, or to speak to other employees.
Schultz declared that she received from Nykiel the copies
of other cartoons drawn by Dillard and that ‘‘the signatures
matched,’’ but that she wanted to ‘‘investigate thoroughly.’’
She spoke with Company President Cameron, reported her
reaction to the materials, and told him that ‘‘they should be
terminated once we (have) investigated and found out.’’
Cameron agreed.
Schultz testified that she called her personnel assistant in
San Benito, Ruth Lotta, and Danette Montabo (apparently a
personnel employee), and asked them whether they were
aware of any other employees involved in the matter. Schultz
testified that Lotta and Montabo were ‘‘in and out of the
plant, and the employees talk about things like this, so nor-
mally they know what’s going on there.’’ According to
Schultz, Lotta said that she would check on the matter, then
called back and said that she ‘‘knew nothing.’’ Schultz did
not ask Lotta to identify the employees with whom she had
spoken, and did not ask for a written report. Neither Lotta
nor Montabo testified at the hearing.
Nykiel testified that he suspected that Trevino was in-
volved. He was ‘‘the shipping clerk on that shift and basi-
cally . . . they could not have got (it) on the truck . . . I
mean they could have but (it is) unlikely that it could have
gotten on the truck without Oziel’s cooperation . . . .’’
Nykiel contended that he talked to supervisors and asked
them whether they knew ‘‘who was involved.’’ According to
Nykiel, the supervisors replied that they knew nothing.
Nykiel did not instruct them to ask employees about the mat-
ter, and did not himself question Trevino or any other em-
ployee. None of the supervisors testified at the hearing.
Schultz called Nykiel again after receipt of the additional
Dillard cartoons. She stated that she had compared them, and
directed Nykiel to talk to Dillard. If the latter admitted au-
thorship, he was to be terminated. Schultz testified that this
was her decision.
Nykiel then prepared a notice terminating Dillard ‘‘imme-
diately’’ for ‘‘unsubordination [sic].’’13 and, thereafter, called
Dillard in for an interview. Nykiel stated that this procedure
was ‘‘standard’’—the notice could have been discarded if
Dillard had denied involvement.
Nykiel asserted that he called Dillard into the personnel
office, showed him the cartoon and letter, and asked whether
he had sent them to Schultz. According to Nykiel, Dillard re-
plied, ‘‘Yes.’’ Nykiel contended that he asked Dillard wheth-
er other employees, specifically Trevino, were involved, and
that Dillard denied it. Nykiel stated that he asked Dillard the
reason for sending the T-shirt and letter, and that the latter
responded that he ‘‘wanted to get into making T-shirts and
wanted Diane’s (Schultz’) opinion on it.’’ When Nykiel
questioned this, Dillard assertedly replied that ‘‘it was just a
joke’’ and that he thought it was ‘‘funny.’’ Nykiel replied,
according to his testimony, that the Company did not think
it was funny, and that Dillard was terminated.
Dillard gave a different version of the exit interview. ‘‘He
(Nykiel) asked me if I had seen the letter before. I didn’t
give him a direct answer. I kind of shook my head because
. . . Trevino was involved and I didn’t feel like I had to ex-
plain anything to him at that time.’’ Dillard denied that
Nykiel asked him whether other employees were involved.
The supervisor told him that his initials were on the cartoon,
and that he was discharged for insubordination.
Schultz testified that the investigation ‘‘ended’’ when Dil-
lard assertedly admitted authorship and failed to name other
employees. Since ‘‘he didn’t name any others, he was taking
it on himself to represent’’ the employees. Schultz contended
that the investigation changed her ‘‘initial impression’’ that
other employees were involved and, accordingly, that she
had no knowledge of other employee participation in the
matter.
2. Factual analysis
The evidence is insufficient to establish that Respondent’s
‘‘investigation’’ included the questioning of any employee
other than Dillard. Schultz’ testimony on this issue has no
probative weight—it was hearsay, and she failed to ascertain
the names of employees assertedly questioned by the San Be-
959REEF INDUSTRIES
14 Respondent argues that Dillard should not be credited because he contra-
dicted himself several times. Thus, Dillard testified that he did not know he
could be discharged for insubordination, whereas this testimony is allegedly
contradicted by company rules and by Dillard’s testimony at an unemployment
compensation hearing (R. Br. p. 23, fn. 5). A copy of the rules which Dillard
signed is in evidence, but says nothing about insubordination or ridicule of
management. A ‘‘catchall’’ phrase at the end reserves to management the right
to discipline employees ‘‘for any offense of the like or similar nature . . .’’
(R. Exh. 1).
Dillard’s testimony at the unemployment compensation hearing, elicited
somewhat ambiguously on cross-examination, does not contain the asserted
contradiction.
Respondent further argues that Dillard, at the compensation hearing, con-
tended that Schultz compared Reef employees to ‘‘blacks,’’ ‘‘cripples,’’ and
‘‘mental retards,’’ but later recanted this testimony. There is no explicit evi-
dence of Dillard’s former testimony on this subject, and he credibly testified
at the unfair labor practice hearing that this was his own characterization of
Schultz’ testimony, not language he attributed to her.
15 Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill
v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985)
(Myers I); reaffd. in Meyers Industries, 281 NLRB 882, 885 (1986), enfd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987) (Meyers II).
nito personnel department or to require a written report. I do
not credit Schultz’ assertion that she instructed Nykiel to
question other employees. Nykiel did not corroborate this as-
pect of Schultz’ testimony, and, clearly, he did not question
other employees or instruct his supervisors to do so.
It is also obvious that Nykiel prepared Dillard’s termi-
nation notice before interviewing him. Nykiel’s contention
that he asked Dillard whether Trevino or other employees
were involved was denied by Dillard and is inconsistent with
his actual conduct of the ‘‘investigation’’—he could easily
have asked Trevino these questions himself, or could have
directed his supervisors to make the inquiries. Nykiel’s fail-
ure to do so is incongruous in light of his admitted suspicion
that Trevino was involved. His statement that Dillard said he
planned to make T-shirts and wanted Schultz’ ‘‘opinion’’ is
implausible. It is also improbable that Dillard would have
characterized the letter and T-shirt as ‘‘just a joke’’ in light
of his and other employee opinion that Schultz’ testimony
was insulting. Dillard’s account of the exit interview, with
his failure to make an outright admission and his desire to
protect Trevino, is more realistic. Further, Dillard’s demeanor
on the witness stand was that of a truthful witness. Accord-
ingly, I find, Nykiel asked but Dillard did not admit author-
ship of the letter and T-shirt. Nykiel did not ask Dillard
whether other employees were involved, and discharged Dil-
lard because his authorship was established by his initials on
the T-shirt.14
E. Legal Analysis and Conclusions
1. Applicable principles
Section 7 of the Act gives employees the right to engage
in ‘‘concerted activities’’ for ‘‘mutual aid or protection,’’ and
Section 8(a)(1) declares it an unfair labor practice for an em-
ployer to interfere with, restrain, or coerce employees in the
exercise of the rights set forth in Section 7. The Board has
stated the law as follows:
In general, to find an employee’s activity to be ‘‘con-
certed,’’ we shall require that it be engaged in with or
on the authority of other employees, and not solely by
and on behalf of the employee himself. Once the activ-
ity is found to be concerted, an 8(a)(1) violation will
be found if, in addition, the employer knew of the con-
certed nature of the activity, the concerted activity was
protected by the Act, and the adverse employment ac-
tion at issue (e.g., discharge) was motivated by the em-
ployee’s protected concerted activity.15
2. The concerted nature of the employee activity
It is obvious that Dillard engaged in preparation and ship-
ment of the letter and T-shirt both with and on the authority
of other employees. The initial request was made to Trevino
by another employee, and he and Dillard cooperated in the
preparation of the documents. Thereafter, Dillard sought and
obtained the agreement of other San Benito employees to
send the documents to Personnel Manager Schultz in Hous-
ton. In order to accomplish this, he again needed and ob-
tained the cooperation of shipping clerk Trevino. I find that
Dillard and other employees were engaged in concerted ac-
tivity.
3. Respondent’s knowledge of the concerted nature of
the activity
Respondent’s argument that it was without knowledge of
the concerted nature of these activities is not persuasive. Per-
sonnel Manager Schultz admitted that the language of the let-
ter would suggest to a reasonable person that more than one
individual was involved, and recommended to the company
president that ‘‘they’’ should be terminated. On almost iden-
tical facts, the Board with judicial approval has concluded
that an employer had knowledge of the concerted nature of
his employees’ activities. Oakes Machine Corp., 288 NLRB
456 (1988), enfd. as modified 897 F.2d 84 (1990).
I do not accept Schultz’ testimony that her ‘‘initial impres-
sion’’ of the concerted nature of the activities was corrected
by the Company’s investigation. The investigation was a
sham. No employee other than Dillard was questioned.
Nykiel’s report and Lotta’s asserted report to Schultz that
their supervisors ‘‘knew nothing’’ are unbelievable in light
of testimony, some from Schultz herself, that the supervisors
were knowledgeable about plant activity. Adopting her own
evidentiary rule, Schultz concluded that no other employees
were involved because Dillard did not name any. Application
of such a rule would require an employee involved in con-
certed activity either to disclose to an employer, on demand,
the names of other employees similarly involved, or to risk
a finding that he was acting alone. Such reasoning is con-
trary to the policies of the Act, and I reject it. I conclude,
on the authority of Oakes Machine Corp., supra, that Re-
spondent did have knowledge of the concerted nature of the
activities of Dillard and other employees.
4. The protected nature of the employee activity
(a) Applicable principles
The Board has declared that the protected nature of em-
ployee activity depends on the extent to which it is ‘‘a part
of and related to the ongoing labor dispute (emphasis in
original). Allied Aviation Service Co. of New Jersey, 248
NLRB 229, 231 (1980), enfd. 636 F.2d 1210 (3d Cir.
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The Board stated that this principle was embodied in two prior cases,
Richboro Community Health Council, 242 NLRB 1267 (1979), and Community
Hospital of Roanoke Valley, 220 NLRB 217 (1975), enfd. 538 F.2d 607 (4th
Cir. 1976).
17 Alaska Pulp Corp., 296 NLRB 1260, 1261 (1989). The Board held that
an employee letter attacking the company’s management and including accusa-
tions of double bookkeeping, a conspiracy to force other corporations out of
business, and misrepresentations ‘‘by a few self serving greedy individuals’’
(ibid.), also constituted protected conduct.
18 Sierra Publishing Co., 291 NLRB 540, 542 (1988), enfd. 889 F.2d 210
(9th Cir. 1989).
19 Emarco, Inc., 284 NLRB 832, 833 (1987). The Board stated that its deci-
sion was consistent with NLRB v. Electrical Workers IBEW Local 1229 (Jef-
ferson Standard), 346 U.S. 464 (1953), in that employee appeals to third par-
ties in an ongoing labor dispute are protected if they are ‘‘not so disloyal,
reckless, or maliciously untrue (as) to lose the Act’s protection’’ (id., 284
NLRB at 833).
20 Mitchell Manuals, 280 NLRB 230 (1986). The Board noted that the em-
ployees’ recommended remedy to the parent company included a reference to
wage standards, and thus linked the letter to a prior discussion on wages which
the employees had engaged in with the employer.
21 Allied Aviation Service, supra. The steward had filed grievances which did
not discuss the safety issue. Disagreeing with an administrative law judge, the
Board characterized the steward’s action as a tactical device not determinative
of the relationship between the letters and the ongoing labor dispute.
22 Oakes Machine Corp., supra. The Court of Appeals for the Second Circuit
noted, on the ‘‘exceptional facts’’ of the case, that the protest originated with
employees, the supervisor dealt directly with them, his identity related to
working conditions, and the method of protest was reasonable.
23 Leslie Metal Arts Co., 208 NLRB 323, 326 (1974), enfd. 509 F.2d 811
(6th Cir. 1975).
24 Dreis & Krump Mfg., 221 NLRB 309, 312–313 (1975), enfd. 544 F.2d
320 (7th Cir. 1976). The Board related the notices to a prior grievance, even
though the notices did not specifically ask the employer to do anything, and
accepted the administrative law judge’s conclusion, supported by numerous au-
thorities, that ‘‘offensive, vulgar, defamatory or opprobrious remarks uttered
during the course of protected activities will not remove activities from the
Act’s protection unless they are so flagrant, violent, or extreme as to render
the individual unfit for further service’’ (id. at 315).
25 Id. at 310.
26 544 F.2d at 327.
27 R. Br. pp. 4, 10–11.
28 See also NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 344–
345 (1938); Detroit Forming, Inc., 204 NLRB 205, 212 (1973); Spinoza, Inc.,
199 NLRB 525 (1972), enfd. 478 F.2d 1401 (5th Cir. 1973).
1980).16 The Supreme Court has stated that ‘‘some concerted
activity bears a less immediate relationship to employees’ in-
terests as employees than other such activity. We may as-
sume that at some point the relationship becomes so attenu-
ated that an activity cannot fairly be deemed to come within
the ‘mutual aid or protection’ clause.’’ Eastex, Inc. v. NLRB,
437 U.S. 556, 567–568 (1978). However, in that case the
Court, affirming the Board’s determinations, concluded that
sections of a union newsletter, distributed on company prop-
erty, which encouraged employees to write their legislators
in opposition to a proposed state right-to-work law, and
which criticized a Presidential veto of a proposed increase in
a Federal minimum wage bill, came within the protection of
the ‘‘mutual aid or protection’’ clause (id.). The Board has
recently concluded that an employee’s testimony before Con-
gress ‘‘in support of legislation that the Respondent consid-
ered inimical to its interests’’ constituted protected activity.17
The Board has held employee activity to be similarly pro-
tected where it involved newspaper employees’ letters to ad-
vertisers stating that circulation was declining and the news-
paper was ‘‘speeding downhill’’18; statements of striking
subcontractor employees to the general contractor that the
subcontractor had no money, never paid his bills, was ‘‘no
damn good,’’ and that the job was ‘‘too damn big’’ for
him;19 an employee letter to a parent company attacking the
employer’s organizational structure and the adequacy of its
product;20 a steward’s letters to customers arguing that the
employer’s procedures were unsafe;21 and an employee’s let-
ter to a parent company seeking to replace a supervisor.22
The Board has also concluded with judicial approval that
an employee walkout protesting a supervisor’s failure to dis-
cipline another employee was protected, since ‘‘the quality of
supervision and the manner in which it is exercised are di-
rectly related to working conditions, and the banding together
of employees to protest the way in which supervision is exer-
cised . . . is protected concerted activity.’’23 In another case
employee notices accusing a supervisor of ‘‘malice, gross
negligence, carelessness, dissembling,’’ and an attempt to
shift blame to an employee were held to be protected.24 In
a concurring opinion, Member Penello declared that the em-
ployee was ‘‘merely attempting to make Respondent and em-
ployees aware of the nature and extent of dissatisfaction, and
to call the attention of employees to matters of serious and
legitimate concern to fellow employees such as safety, im-
proper training, and discipline.’’25 In its enforcing decree, the
Court of Appeals for the Seventh Circuit stated that ‘‘[a] pro-
test arising from allegedly improper supervisory conduct fur-
thers the ‘mutual aid or protection’ of the employees, par-
ticularly where the supervisor’s actions imperil the safety of
the workers and also may result in their unwarranted dis-
cipline.’’26
(b) The employees’ activity
It is obvious that there was an ongoing labor dispute in
this case—the representation proceeding. The employee ac-
tivity was a direct response to Personnel Manager Schultz’
testimony at the objections hearing. Respondent has charac-
terized that testimony as truthfully given under oath in re-
sponse to an issue first raised at the hearing by the Union.27
It is undisputed that the educational issue was first raised by
the Union. Whether the employees’ opinion of the accuracy
of Schultz’ testimony was correct is irrelevant, since the
Board with judicial approval has concluded that employee al-
legations protesting management action constitute protected
conduct notwithstanding inaccuracy of any allegation, pro-
vided that it is not deliberately or maliciously false. Walls
Mfg. Co. v. NLRB., 321 F.2d 7538 (D.C. Cir. 1963), enfg.
137 NLRB 1317 (1962).28
In this case, it is by no means clear that Schultz’ statement
was accurate. Thus, her own records and testimony show that
the ‘‘average’’ educational level was at the 10.7 grade level
rather than the 10th grade which she asserted at the objec-
tions hearing. This is closer to the 11th rather than the 10th
grade. Further, the use of an ‘‘average’’ rather than some
other statistical measurement did not fairly represent the edu-
cational level of the San Benito employees. Some did not re-
spond to the Employer’s question concerning their education,
and no valid inferences may be made as to these employees.
Of those who did respond to the question, more than one-
half had a high school degree or its equivalent. Since the
Company’s purpose at the objections hearing was to compare
Aguirre’s education with that of other employees, an appro-
priate response from the personnel manager would have been
that more than one-half of the employees responding to a
question about their education were at the same level as
Aguirre. Despite the irrelevancy of the accuracy of employee
961REEF INDUSTRIES
29 R. Br, p. 14.
30 Other cases cited by Respondent, are similarly inapposite. Thus, in Finlay
Bros. Co., 282 NLRB 737 (1987), the employee repeatedly disobeyed orders
to wear a uniform and fabricated employee opposition to the order. In Amer-
ican Arbitration Assn., 233 NLRB 71 (1977), the employee violated the con-
fidentiality on which her employer depended, and ridiculed it in letters to law-
yers and arbitrators. These actions are not comparable to the employee activity
herein.
31 Although the fact that Dillard’s discharge notice was prepared before he
was interviewed would normally, under Board law, be considered to be evi-
dence of a violation of Sec. 8(a)(3) of the Act, it is unnecessary to consider
this factor in light of the complaint allegations.
32 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set out in the 1986 amendment to 26
U.S.C. § 6621. Interest accrued before January 1, 1987 (the effective date of
the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651
(1977).
opinion concerning Schultz’ testimony, I conclude that the
employees’ view that the personnel manager had understated
their educational level was reasonably grounded in fact.
In summary, the employees assessed Schultz’ testimony as
an inaccurate statement of their educational levels. The em-
ployees’ education was obviously related to the employment
relationship, since Respondent asked employees or job appli-
cants questions about their education. Schultz’ statement
about their educational level came from a company official
who had opposed the Union during the campaign, and who
was testifying at the objections hearing in an attempt to set
aside the Union’s victory in the election.
Respondent argues that the employees’ letter did not con-
stitute protected activity because it did not request ‘‘Schultz
or other management to take any particular action.’’29 This
argument has been rejected by the Board in Dreis & Krump,
supra, and by the Supreme Court in Eastex, implicitly in its
conclusions finding employee appeals to persons other than
the employer to be protected conduct, and explicitly in its re-
jection of that argument made by the employer. 437 U.S. at
572.
Moreover, the argument is factually inaccurate in this case.
It is apparent that the union proponents wanted, and the
Company opposed, their union representation. It was unnec-
essary for the union proponents to articulate their wish that
the Company drop its objections and accept the result of the
election—this was obvious. The letter and cartoon were part
of an employee attempt to get Respondent to accept the elec-
tion results. Accordingly, because of the connection of the
educational issue to the employment relationship, the prob-
able inaccuracy of Schultz’ testimony concerning an element
in that relationship, her active opposition to the Union, and
the ongoing status of the representation proceeding, I con-
clude that the employees’ protest against her testimony was
sufficiently related to their working conditions to come with-
in the mutual aid or protection clause of the Act.
There remains for consideration the issue of whether that
protest took a form which would bar it from the protection
of the Act. The letter itself was a form of mild sarcasm, and
the cartoon portrayed an imaginary employee of low intel-
ligence—the employees’ view of Schultz’ characterization of
them. Respondent cites several decisions to support its con-
tention that this form of employee protest was impermissible.
The principal case, Caterpillar Tractor Co., 276 NLRB 1323
(1985), also involved a cartoon. However, in that case the
cartoon pictured an actual supervisor, not an imaginary em-
ployee. Further, the supervisor was portrayed with animal-
like characteristics, ‘‘clearly defined male genitals,’’ and was
engaged in excretory functions while uttering obscenities.
The Board concluded that this cartoon was ‘‘malicious, de-
famatory, insubordinate, obnoxious, and wholly unjustified’’
(id. at 1326). It is obvious that Dillard’s cartoon is not re-
motely comparable—it did not portray a management figure,
and was not obscene or obnoxious.30 Although Trevino stat-
ed that an object of the letter was to see whether Schultz
could take an insult as the employees were insulted, he
added that he and Dillard took care to exclude ‘‘bad words
or any really derogatory statements.’’ Flores denied that the
T-shirt and letter made Schultz ‘‘look bad’’—it was her testi-
mony that made her ‘‘look bad.’’ Schultz’ assertion that the
letter and cartoon prevented her from supervising is undocu-
mented and exaggerated.
I conclude, based on the numerous authorities cited above,
that the means which the employees utilized to state their
protest were not so ‘‘offensive, vulgar, defamatory, or oppro-
brious’’ as to exclude them from the protection of the Act.
Accordingly, the protest constituted protected activity.
It is obvious that Dillard was discharged for his part in the
letter and cartoon. Inasmuch as I have concluded that this
constituted permissible concerted employee activity for mu-
tual aid or protection, Respondent’s discharge of Dillard, for
this reason, was violative of Section 8(a)(1) of the Act. I so
find.31
CONCLUSIONS OF LAW
1. The Respondent, Reef Industries, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By discharging employee Mark Dillard on October 18,
1989, because of his protected, concerted activities, the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
3. 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
It having been found that Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the purposes of the
Act.
It having been found that the Respondent unlawfully dis-
charged Mark Dillard on October 18, 1989, it is rec-
ommended that Respondent be ordered to offer Dillard im-
mediate reinstatement to his former position, or, if such posi-
tion no longer exists, to a substantially equivalent position,
dismissing if necessary any employee hired to fill the posi-
tion, and to make him whole for any loss of earnings he may
have suffered by reason of Respondent’s unlawful conduct,
by paying him a sum of money equal to the amount he
would have earned from the date of his unlawful discharge
to the date of an offer of reinstatement, less net earnings dur-
ing such period, to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).32
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 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 objec-
tions to them shall be deemed waived for all purposes.
34 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
In addition, an expunction order and the posting of notices
by Respondent are warranted.
On these findings of fact and conclusions of law and upon
the entire record, I recommend the following33
ORDER
The Respondent, Reef Industries, Inc., San Benito, Texas,
it officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Discharging employees because of their protected con-
certed activities.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Mark Dillard immediate reinstatement to his
former position, or, if such position no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and make him whole
for any loss of earnings he may suffered by reason of Re-
spondent’s unlawful discrimination against him, in the man-
ner described in the remedy section of this decision.
(b) Expunge from its personnel records or other files any
references to its discharge of Mark Dillard on October 18,
1989, and notify him in writing that this action has been
taken and that evidence of such discharge will not be used
as a basis for future personnel actions against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, and all other
records necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Post at its San Benito and Houston, Texas facilities
copies of the attached notice marked ‘‘Appendix.’’34 Copies
of the notice, on forms provided by the Regional Director for
Region 16, after being signed by Respondents authorized
representative, shall be posted by Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representative of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge employees because of their pro-
tected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed by Section 7 of the Act.
WE WILL offer Mark Dillard immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
WE WILL remove from our files any references to the dis-
charge of Mark Dillard, and notify him, in writing, that has
been done and that evidence of the unlawful discharge will
not be used against him in any way.
REEF INDUSTRIES, INC.