Salem Tube, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1989

296 N.L.R.B. 142 (N.L.R.B. 1989)

142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Salem Tube, Inc. and Paul Edward Williams. Case
6-CA-20689
August 21, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On November 10, 1988, Administrative Law
Judge Arline Pacht issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief and the Respondent filed a cross-ex-
ception together with a brief in support, and an
answer to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The General Counsel has excepted to some of the judge 's credibility
findings. The Board 's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
In light of our agreement with the judge 's finding that Williams was
not engaged in concerted activity, we find it unnecessary to pass on the
judge's finding , in fn 12 of her decision , that if Williams had engaged in
concerted activity at the meeting his actions would have been protected
under the Act
In adopting the judge 's dismissal of the General Counsel 's 8(a)(1) alle-
gations , we note Williams ' own testimony in which he qualified his ac-
tions at the August 13 , 1989 meeting as being motivated by solely indi-
vidual reasons
Julie Stern, Esq., for the General Counsel.
Seamus M. Tuohey, Esq., Mitchell Rait, Esq. (Grotta,
Glassman & Hoffman), of Roseland , New Jersey, for
the Respondent.
John Sparks, Esq. (Bogarty, McEwen & Sparks), of Grove
City, Pennsylvania , for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Judge . Upon a charge
filed on February 5, 1988, a complaint issued on March
31, 1988, alleging that Salem Tube, Inc. (the Respondent
or the Company) violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act) by discharging
Paul Williams on August 14, 1987,1 because he engaged
in union and/or protected concerted activities . The Re-
spondent filed a timely answer denying it had violated
the Act.
At the hearing held in Greenville , Pennsylvania, on
August 11 , 1988, all parties were afforded full opportuni-
ty to participate . On the entire record ,2 having carefully
observed the witnesses ' demeanor and considered the
General Counsel's and Respondent 's briefs, I make the
following
FINDINGS OF FACT
1. JURISDICTION
The Company , a Delaware corporation , with its office
and principal place of business in Greenville , Pennsylva-
nia, is engaged in the manufacture and nonretail sale of
stainless tubing products . During the 12 -month period
ending December 31, 1987, Respondent , in the course
and conduct of its business operations, purchased goods
and materials in excess of $50,000 directly from vendors
and shipped goods and materials valued in excess of
$50,000 directly to purchasers located outside the Com-
monwealth of Pennsylvania . Accordingly, the Respond-
ent admits and I find that the Company is now , and has
been at all times material herein , an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Paul Williams , employed by Salem Tube from August
1983 until his discharge on August 14, 1987 , took part in
a variety of protected, concerted activities throughout
much of his career there . In 1984 and 1985 , he served on
an in-plant committee which attempted to resolve em-
ployee complaints with management . Then , starting in
the summer of 1985 , he figured prominently in a union
campaign. Although Paul Stoyer was the employee who
initiated contact with the United Auto Workers and
functioned as the principal union promotor , he relied on
Williams as one of his chief "lieutenants." During this
drive, Williams discussed the benefits of union represen-
tation with other employees , and distributed authoriza-
tion cards, eventually obtaining approximately 40 signa-
tures, close to half of the total ultimately collected.
Company President Michael Olsher responded to the
UAW campaign in several ways: he issued a few letters
to the work force which spelled out the potential pitfalls
of union representation , 3 and held a series of small group
I All events took place in 1987 unless otherwise indicated
2 Counsel for the General Counsel (the General Counsel ) appended to
her brief an unopposed motion to correct transcript The motion is grant-
ed and received in evidence as G C Exh 11.
9 The record contains four letters which Olsher sent to the employees
However, Williams testified that Olsher issued a fifth letter in which he
threatened to fire anyone who voted for the Union . Williams did not
produce this letter nor did the General Counsel issue a subpoena for its
production Consequently, I conclude that Williams simply invented this
fictitious letter out of whole cloth . Although the Company 's letters were
strongly antiunion , I find nothing in them that offends Sec 8(c) of the
Act. (See G .C Exhs. 2-5 )
296 NLRB No. 19
SALEM TUBE, INC.
meetings designed to solicit and address employee dissa-
tisfactions . Williams participated in several of these meet-
ings where, as he testified , he was encouraged to speak
his mind . Thus, he admittedly felt no constraint in telling
Olsher during the course of these meetings , that in the
absence of written rules governing working conditions,
the employees needed union representation to protect
them against management 's broken promises.
After the union election ,' and in response to many
complaints such as Williams ' regarding the need for writ-
ten procedures , Olsher caused a set of proposed work
rules to be drafted and implemented in May 1986. He
also promised the employees that they would have an
opportunity to comment upon and help amend the rules
(known as the Working Document ) within 6 months of
their publication.
After the rules had been in effect for almost a year,
Williams reminded Olsher of his promise to afford em-
ployees a comment period : he prepared a petition dated
March 13, which requested that the Company meet with
the employees to review the Working Document. Wil-
liams also was responsible for circulating the petition
among the workers . He obtained 69 signatures in addi-
tion to his own , and delivered it to Plant Superintendent
Robert Snyder . Thereafter , by open memo of March 26
to the work force , the Company agreed to form a man-
agement-employee committee to review the working
document and requested volunteers . From the 12 or 13
employees who registered interest or were nominated,
management chose 8. When one of the employees origi-
nally selected for the committee declined to serve, Wil-
liams asked to take his place . Without explanation,
Snyder and Perry Geeck , vice president of operations,
rejected his request.
The joint review committee met regularly over a
period of months and agreed to amend the Working
Document in a number of areas. One of the revisions of
the disciplinary code has a bearing on Williams' dis-
charge . The original Working Document provided for
two categories of violations : category 1 included conduct
of a less serious nature for which a first offense would
result in a warning ; category 2 violations, those which
were deemed more serious and included insubordination,
could lead to "more severe discipline up to and including
termination for a first offense ." However, another and
apparently contradictory section of the Working Docu-
ment also provided : "Insubordination will be five days
off for the first offense , termination for the second of-
fense." (See G . C. Exh . 6 at 18 to 21.) The joint commit-
tee resolved this ambiguity by deleting the section au-
thorizing that a warning be given for a first offense. (See
R. Exh . 7 at 25 .) However, the parties differ as to when
this revised policy took effect . Plant Superintendent
Snyder testified that his notes showed that the joint com-
mittee members agreed to delete the Working Docu-
ment 's contradictory language on July 29 and, in accord-
ance with the committee 's practice , the revision took
effect immediately , even though the new rules were not
published until sometime in September. However, Earl
Stoyer, a member of the joint committee , could not
4 The UAW lost the election by a wide margin.
143
recall when the committee had agreed to the deletion.
Moreover , he and Williams both indicated that the em-
ployees had no notice that the disciplinary code had
been altered prior to publication of the revised rules in
September.
Williams further testified that some of his fellow work-
ers urged him to prepare a second petition to request
that employee members of the joint committee be elected
rather than handpicked by management . Williams did so
and again circulated it, gathering a total of 75 signatures,
with his name heading the list. Believing he had "stuck
his neck out" enough , Williams asked coworker Mark
Rhoades to submit this petition to management . Rhoades
agreed and at the outset of a companywide meeting on
August 13, handed copies of the petition to Olsher and
Snyder. According to Rhoades , Olsher agreed to consid-
er it.
A. The August 13 Meeting and Williams' Discharge
The events immediately preceding Williams' discharge
on August 14 began at a meeting held the previous day.
The Company invited all personnel to the August 13
meeting in order to explain the terms of a new insurance
plan and announce a pay raise . Olsher regarded the
meeting as very important : it was his opportunity to ex-
plain that the long-delayed wage hike would not only
offset the employees contribution to the health plan, but
also would constitute an absolute 3-percent increase.
Much planning had occurred prior to the meeting : insur-
ance company officials were present and explanatory ma-
terials had been prepared for distribution to the work
force.
The meeting was held in a large room of the plant
which had thin steel walls set on cement blocks. Re-
spondent's executives and an insurance company spokes-
person sat at the head of the room just in front of a
series of opened windows, facing the more than 100
workers who, in the absence of other seating arrange-
ments, stood about or leaned against tables and walls.
Williams was fortunate to find a catbird seat ; he perched
on a forklift stationed at the front right side of the room,
and from this vantage point some 3 or 4 feet off the
ground , could see and be seen, at least by those in the
front of the room.
Olsher addressed the group for approximately 45 min-
utes and then turned the meeting over to Jean Mackay,
the insurance company representative . While she was
preparing some materials for a slide presentation, Wil-
liams left the room . The parties offer widely divergent
views both of Williams ' conduct during the meeting and
his manner of departure.
According to Olsher and Snyder , Williams made
"thumbs-down" gestures and shook his head as if signify-
ing dissent some three or four times while Olsher was
speaking . He then took the most conspicuous route out
of the plant, walking straight across the room in front of
the company officials, rather than taking a longer and
less intrusive path around the audience . While on his
way out, he allegedly threw his hands down in a motion
which seemed to Olsher to signify disgust . Once outside
the plant, he revved his motorbike for some 2 to 3 min-
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
utes, creating such a loud noise that he disrupted
Mackay's presentation.
Williams acknowledged that he had little interest in
the Company 's health insurance program ,5 but denied
making any derogatory gestures while Olsher was speak-
ing or that he intended any affront by his departure. He
did admit that just as he was leaving , he gave one
thumbs down signal to a buddy sitting nearby who had
greeted him with a thumbs up sign . He further explained
that he had to depart at that time because of parental ob-
ligations and had waited until Olsher completed his re-
marks . He chose the shortest route out to reach his mo-
torbike which he ordinarily parked at that location, one
commonly used by employees for the same purpose. He
started the bike and drove off making no more noise
than was customary given the nature of his vehicle. Only
one of the employees who testified, Gary Schadt, ob-
served Williams making the gestures which Olsher de-
scribed .6 In Schadt 's opinion Williams was signaling to
no one in particular , that "he totally disagreed with what
they had to say." While a few employees saw him leave,
no one failed to hear the uproar created when Williams
started his bike . Estimates of how much time was lost
because of Williams' exit varied from 1 to 4 minutes.
Olsher reacted swiftly to Williams' departure. Several
employees noted that as soon as the noise had abated,
Olsher whispered something to Geeck and started to
leave the room. In fact, Olsher testified that he told
Geeck: "as far as I'm concerned , he's [Williams] fired."
After the meeting, Olsher instructed Geeck and Snyder
to impose the most severe penalty possible under the
Working Document . Olsher explained at the hearing that
he regarded Williams' negative conduct as totally inap-
propriate , for the meeting had not been called to air
grievances or debate employment policy . He also pointed
out that Williams could have wheeled his bike away
from the facility before starting it if he had any regard
for the rights of others. Thus, Olsher believed that Wil-
liams' dissenting gestures , his conspicuous exit and his
deafening retreat, were intended to disrupt the meeting
and revealed his disdain for him and the Company.
The following day, Williams was summoned to
Geeck's office where Geeck and Snyder advised him
that he was terminated for gross insubordination related
to the disturbance he had created at the meeting the day
before. Subsequently, Williams received a letter from
Snyder which recapitulated the grounds for his termina-
tion . Specifically , the letter stated that Williams
made a spectacle of [himself) throughout the meet-
ing by making obvious thumbs down hand signals
when important oral presentations were being
made.... You left the meeting by walking directly
in front of the podium in an obvious attempt to fur-
5 Williams explained that he intended to seek health coverage under his
wife's medical plan
6 Schadt , who was seated in the front and center of the room, stated
that he saw Williams both nodding his head in a negative manner and
making the thumbs down gesture several times Other employees did not
observe Williams making any untoward movements , but this may be be-
cause they were standing toward the rear of the crowd and had their
view somewhat obscured.
ther disrupt the meeting. You then proceeded to
start and "rev up" the engine on your motorcycle
for several minutes, making it impossible for em-
ployees to hear.
The letter then advised that pursuant to the Working
Document , Williams had the right to request a hearing
before a panel which would include supervisors, the
Plant Superintendent and an impartial plant employee of
his choosing . Williams decided not to request a hearing
because the Respondent had reserved the right to veto
his employee representative.
Discussion and Concluding Findings
The General Counsel contends that the Respondent
exaggerated and distorted Williams' actions at the
August 13 meeting , seizing upon them as an excuse to
dispose of an employee who over a period of years had
engaged aggressively in union and protected, concerted
activities . The Respondent counters that Williams was
terminated for offensive , insubordinate conduct at that
meeting . Where, as here, unlawful and legitimate reasons
are offered to explain a discharge , the General Counsel
bears the burden of proving that the employee was en-
gaged in union and/or concerted , protected activity and
that the employer discriminated against him for that
reason . Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Only if the General Counsel succeeds in proving each
element of a prima facie case, does the burden shift to
the Respondent to establish that the discharge would
have occurred even in the absence of the protected con-
duct. Id.
B. The 8(a)(3) Allegation
The record establishes that Williams was a committed
and effective union advocate. However, although Re-
spondent certainly knew of Williams ' union activity, I
am not persuaded that this was the reason for his dis-
charge.'
When an employee is dismissed close in time to his
union activity, the Board often infers that the employer
acted with a discriminatory motive and that the asserted
reason for the discharge was pretextual . See, e.g., Atlanta
Blue Prints & Graphics Co., 244 NLRB 634 (1979). By
the same token , where a significant lapse of time occurs
between the union activity and discharge , an inference of
discriminatory motivation may not be arranted . See, e.g.,
Irving Tanning Co., 273 NLRB 6 (1984) (5-month hiatus
between union involvement and discharge ); Carolina
Paper Mills, 254 NLRB 1071 ( 1981) (union activities 3 to
6 months prior to discharge creates no inference of un-
lawful reprisal). Here, Williams' termination occurred
almost 18 months after his union activity ceased. The
record fails to show that any employee (except Williams)
° Respondent denies in its brief that company officials were aware that
Williams was a leading union proponent However, Stoyer testified credi-
bly that he frequently discussed union matters and Williams' role in them
with supervisors Moreover, Olsher acknowledged that Williams boldly
asserted the need for a union during group meetings he conducted during
the union campaign.
SALEM TUBE, INC.
filed charges of discriminatory treatment because of
union activity. Thus, without other evidence, I find no
reason to conclude that Williams ' role in the union cam-
paign influenced the Respondent to retaliate against him.
The General Counsel submits that regardless of the
length of time that elapsed , Respondent 's antiunion bias
persevered . To support this assertion , she points to hand-
written notes on a March 26 signup sheet which refer to
several employees listed there as "active in prior organi-
zation" or "vocal." (G.C. Exh. 10.) Counsel 's argument
is unconvincing, however, for the only two employees
referred to in this manner (that is, Stoyer and Rhoades),
were among the eight employees the Respondent select-
ed for the joint review committee.
Moreover , as the Respondent aptly argues , if the Com-
pany was simply waiting for an opportune moment to
fire Williams for his union advocacy , an earlier opportu-
nity presented itself in June . There is no dispute that
during that month, Williams drove a towlift through a
large puddle on the shop floor , and as Snyder and Geeck
were passing by, splashed dirty water on Geeck's suit
and tie .8 Snyder related that rather than apologizing,
Williams yelled that the Company could cover the clean-
ing costs . Williams recalled the incident but denied that
he intended to douse Geeck or that he made the rude
remark attributed to him . Olsher testified that he was in-
censed when he later heard about Williams' behavior,
but Geeck assured him that since he was uncertain if the
act was intended and he was still quite new at his job, he
did not wish to take any punitive action.
This was not the first time that Williams and Snyder
gave conflicting accounts of past confrontations. In Oc-
tober 1985, while Williams was serving as a committee-
man charged with presenting employees ' grievances, he
began berating Snyder for operating a crane while em-
ployees were laid off. According to Snyder, Williams did
not simply object to his action ; rather, with a large
number of employees looking on , Williams hurled ob-
scene epithets at him . Snyder added that shortly after
this episode , Williams apologized for his intemperate be-
havior. Snyder then assured Williams that he would drop
the matter out of concern for his family . He also forth-
rightly acknowledged at the instant hearing that he did
not wish to fire a union activist in the midst of an orga-
nizing campaign . Williams, on the other hand, denied
that he had cursed Snyder or that he had apologized to
him. His denials lacked credibility . He could find not one
witness to support his version of this encounter. To the
contrary , three witnesses, who seemed to harbor no ani-
mosity toward Williams, confirmed Snyder's account.
One of these witnesses also recalled that Snyder acted
with composure , remaining silent in the face of Williams'
tirade . Snyder's restraint on that occasion was consistent
with his demeanor in this trial: he impressed me as a
mild-mannered , even-tempered and trustworthy witness.
It was clear that he had been upset and even humiliated
by Williams' profane abuse, not by the fact that he was
criticized for operating the crane. Consequently, I do not
find that Williams testified honestly about the 1985 brou-
8 Williams did not contest the fact that he splashed Geeck but main-
tained that it was unintentional.
145
haha with Snyder . Bearing in mind that he also invented
a letter purportedly issued by the Respondent during the
union campaign , I can only conclude that Williams, not
Snyder, dissembled about his behavior in the June water-
dousing incident with Geeck.9 It is not plausible to
assume that Respondent's officials would wait until
August to fire Williams out of antiunion animus when
they had a good opportunity to be rid of him in June,
closer in time to his union activity.
Without doubt, the letters which Respondent issued to
employees during the UAW campaign revealed the
Company's desire to defeat the union . But antiunion
propaganda does not necessarily evidence bias toward a
particular individual because of his union activism. In
sum, this record provides no basis for concluding that
Respondent was motivated by antiunion animus when
Williams was discharged 18 months after his union activ-
ity ceased . Accordingly , I do not find that Respondent
violated Section 8(a)(3) of the Act in dismissing the
Charging Party.
C. The 8(a)(1) Allegation
Alternatively, the General Counsel submits that Re-
spondent violated Section 8(a)(1) of the Act by firing
Williams for engaging in concerted , protected activity.
Specifically , counsel refers to Williams' leadership role in
preparing and circulating two petitions, both of which,
in effect , urged that the Respondent grant the employees
a greater voice in regulating their working conditions.
Whether a wrongful discharge is alleged under Section
8(a)(1) or under Section 8(a)(3), the Government still
must bear the burden of proof required by Wright Line,
supra. I do not find that the General Counsel has met
that burden. Although Williams' efforts with regard to
the petitions clearly constituted concerted , protected ac-
tivity, the record evidence does not establish that Re-
spondent discharged him for that reason.
As outlined above, Williams drafted and circulated the
March petition. Without doubt , he was a bold advocate
of the employees ' interests and did not hesitate to hold
Respondent 's hand to the fire . Management surely knew
of Williams ' role in this regard since he had to pass the
petition around among a large number of employees to
gather so many signatures . Moreover , he hand delivered
it to Snyder. However, Respondent did not receive the
petition with hostility; to the contrary, the Company ap-
parently reacted positively. Before the month was out,
Respondent had agreed to establish an employee-man-
agement review committee and sought volunteers for it.
In selecting the participants, management chose several
9 When Geeck (who was not employed by Respondent at the time of
the UAW campaign) told Williams at his discharge interview that "we
don't like your kind of employee ," he could well have been referring to
the June water-splashing incident , not to Williams ' union advocacy Simi-
larly, Snyder could have had his October 1985 encounter and the June
incident with Geeck in mind when he told Stoyer , after Williams' dis-
charge , that he "did not want the son of a bitch in the shop " Several
employees testified that they had arguments with Snyder and, yet , unlike
Williams, were not disciplined for insubordination However , the record
shows that neither man behaved in as egregious a manner as did Wil-
liams Therefore, I do not regard these two situations as evidence that
Williams suffered disparate treatment
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees who were known to be prounion or "vocal."
Once formed , the joint committee met regularly and ap-
parently reached consensus on a number of modifications
to the Working Document.
There is no evidence that Respondent was aware of
Williams' role with respect to the second petition.
Indeed , his request that Rhoades hand it to management
so that he need not "stick his head out" suggests that
Williams may have been fairly circumspect in circulating
the document . So far as this record shows then , Olsher
did not know that Williams was responsible for the peti-
tion. Olsher's comment to Rhoades that he would con-
sider the petition does not indicate that he received it
with suspicion or ill-will . In other words, I find no
reason to infer that Respondent discharged Williams out
of displeasure with his protected, concerted activities
prior to the fateful meeting of August 13.
The General Counsel urges that, at the very least, Re-
spondent violated Section 8(a)(1) by discharging Wil-
liams for conduct at the August 13 meeting which, stand-
ing alone, constituted concerted , protected activity. As
authority for this position, counsel cites Whittaker Corp.,
289 NLRB 933 (1988). In that case, the company presi-
dent held a series of meetings with employees to inform
them they would not receive their regular annual wage
increase . At one such meeting, in response to an invita-
tion for questions , one employee criticized the employ-
er's decision and stated that since he had not had the
benefit of consulting the Company's books, he could not
conclude that the action was justified. The next day, that
employee was discharged for insubordination . Disagree-
ing with the administrative law judge, the Board con-
cluded that the employee was engaged in concerted ac-
tivity and held that the discharge was unlawful. In
reaching this conclusion , the Board first turned to Meyers
Industries, t ° where it ruled that:
[i]n general , to find an employee's activity to be
"concerted ," we shall require that it be engaged in
with or on the authority of other employees, and
not solely by and on behalf of the employee him-
self.
However, in Whittaker, the Board further commented
that the "activity of a single employee in enlisting the
support of his fellow employees for their mutual aid and
protection is as much `concerted activity' as is ordinary
group activity . . . . Such individual action is concerted
as long as it is 'engaged in with the object of initiating or
inducing . . . group action... ."' (Citations omitted.) Id.
Further, the Board instructed that "the object of induc-
ing group action need not be express . . . . Particularly in
a group-meeting context, a concerted objective may be
inferred from the circumstances." Id.
In applying these standards to the circumstances
before it in the Whittaker case, the Board found that the
employee's statement was not simply a personal com-
plaint, but "implicitly elicited support from his fellow
10 268 NLRB 493, 497 ( 1984); remanded sub nom Pr,!! Y. NLRB, 755
F 2d 941 (D.C. Cir 1985), cert denied 474 US . 948 (1985). reaffd 281
NLRB 882 ( 1986). enfd . sub nom Pre !! Y. NLRB, 835 F.2d 1481 (D C
Cir 1987), cert denied 128 LRRM 2664 (June 20, 1988)
employees against the announced change . . . . This is
clearly the initiation of group action ...." Id. at 934.
Further, the Board regarded as irrelevant the fact that
the employee did nothing more to enlist group support
or that his coworkers did not accept the invitation to
group action. Id.
Certain parallels exist between Whittaker and the
present case . Here, as in that matter, the employer called
a group meeting ; here, Williams' head-nodding and
thumbs down gestures could be construed as an expres-
sion of dissent." The parallels stop there . In the present
case, Respondent had assembled the work force for its
own purposes ; no one had been invited to pose questions
or express comments . In fact, Respondent had not yet
completed its presentation . More importantly, the evi-
dence fails to prove that Williams was staging a protest
or initiating a call to action by his comrades . At most,
Respondent , the one employee who saw him , and per-
haps Williams himself, interpreted his course of conduct
as a personal comment suggesting to anyone who may
have been watching that he was disinterested in the
Company's new insurance policy . I cannot find in his
conduct anything that resembles an attempt to mobilize
group action. See Ontario Knife Co. v. NLRB, 637 F.2d
840 (2d Cir . 1980). In light of the circumstances present
here, I find that unlike the employee in Whittaker Corp.,
Williams' actions did not amount to concerted activity.
See Meyers Industries, supra.' a
Without record support that Williams was engaged in
concerted activity, the General Counsel has not estab-
lished a prima facie case and the burden of proof does
not shift to the Respondent to justify its actions. Thus, it
is beyond the scope of this Decision to determine wheth-
er the Respondent overreacted to Williams' conduct, in-
flicting a punishment which several employees believed
far exceeded the crime. However, it is well settled that
the Board may not substitute its judgment for that of an
employer in deciding whether a discharge was warranted
as long as the Act was not violated. See Acrylic Optics
Corp., 222 NLRB 1105, 1106 (1976). Based on the above
considerations , it follows that the Respondent 's discharge
of Williams on August 14 because of his behavior the
previous day does not violate Section 8(a)(1) of the Act.
Accordingly , I must recommend that the complaint in
the above-captioned case be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce with the meaning of Section 2(6) and (7) of the
Act.
" I do not credit Williams' assertions that he neither nodded his head
in a negative manner nor made thumbs down motions during Olsher's
presentation His fabrication on other matters described above convinces
me that Olsher, Snyder , and Schadt honestly described his conduct
during the meeting
12 Having concluded that Williams was not engaged in concerted ac-
tivity, it is unnecessary to decide whether his conduct was protected
Suffice to say , although Williams' conduct in and after the meeting was
intemperate and insulting , nevertheless , it would be protected under the
Act. See Container Corp. of America, 244 NLRB 318(1979).
SALEM TUBE, INC.
2. The Respondent has not engaged in the unfair labor
practices alleged in the complaint in this proceeding for
the reasons set forth above.
On the basis of these findings of fact and conclusions
of law and on the entire record in this proceeding, I
issue the following recommended"
ORDER
147
It is ordered that the complaint in this proceeding be
dismissed in its entirety.
19 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 Board 's Rules and Regula- and Order, and all objections thereto shall be deemed waived for all pur-
tions , be adopted by the Board and shall become its findings , conclusions poses