Severance Tool Industries

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1166 (N.L.R.B. 1991)

1166
301 NLRB No. 147
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We find it unnecessary to pass on the General Counsel’s cross-exception
that by the Respondent’s suspension and discharge of Van Deventer it also
violated Sec. 8(a)(3) because the remedy of reinstatement and backpay for Van
Deventer would be the same.
2 Member Oviatt agrees with the judge that the Respondent’s discharge of
employee Van Deventer violated Sec. 8(a)(1) of the Act. In so doing, Member
Oviatt emphasizes that he does not condone Van Deventer’s manner in pro-
testing the vacation pay problem to the Respondent. Member Oviatt nonethe-
less agrees that Van Deventer’s manner was not so opprobrious as to lose the
protections of the Act.
3 237 NLRB 138 (1978).
Severance Tool Industries, Inc. and International
Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America
(UAW), AFL–CIO. Case 7–CA–29218
February 28, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On June 29, 1990, Administrative Law Judge Karl
H. Buschmann issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief to the ex-
ceptions. The General Counsel filed cross-exceptions
and a supporting brief and the Respondent filed an an-
swering brief to the cross-exceptions.
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as modi-
fied.
We agree with the judge that the Respondent vio-
lated Section 8(a)(1) by unlawfully suspending and
discharging Anthony Van Deventer,1 and by
discriminatorily enforcing its policy on the use of the
Company’s bulletin boards.2 We also agree that the
Respondent violated Section 8(a)(5) of the Act when,
after the Union had been elected as the employees’
bargaining representative, the Respondent unilaterally
changed its policy regarding the employees’ use of its
bulletin boards. We find merit, however, in the Gen-
eral Counsel’s cross-exception to the judge’s finding
with respect to a statement made by former Supervisor
Randy Snyder.
The judge found that Randy Snyder threatened em-
ployees with more onerous working conditions and
stricter enforcement of company policy because they
had signed up for the Union’s organizing committee.
The judge also found, inter alia, that, subsequent to
this threat, the Respondent posted a notice to all em-
ployees that unequivocally and effectively disavowed
any statements alleged to have been made by Snyder.
The judge found that Snyder’s statement amounted to
an 8(a)(1) violation, but due to the Respondent’s reac-
tion to the incident, including its repudiation, and Sny-
der’s subsequent departure from the Respondent, Sny-
der’s actions became de minimis ‘‘without the need for
a formal finding of a violation of the Act and an order
to cease and desist.’’ We disagree. We find that, based
on the criteria set forth in Passavant Memorial Area
Hospital,3 the Respondent undermined whatever legal
effectiveness its prior repudiation had by subsequently
unlawfully suspending and discharging Anthony Van
Deventer, and by later discriminatorily applying and
unilaterally changing its bulletin boards’ usage poli-
cies. Thus, in Passavant, one of the criteria listed for
an effective repudiation is that there be ‘‘no proscribed
conduct on the employer’s part after the publication
[citation omitted].’’ But subsequent proscribed conduct
did occur here. Therefore, in agreement with the Gen-
eral Counsel, we conclude that the Respondent violated
the Act by Snyder’s threat and that a cease-and-desist
order is warranted here for that violation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Sever-
ance Tool Industries, Inc., Saginaw, Michigan, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Add the following as paragraph 1(a) and reletter
subsequent paragraphs.
‘‘(a) Threatening employees with more onerous
working conditions and stricter enforcement of com-
pany policies because they engaged in protected and
concerted activity.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees with more oner-
ous working conditions and stricter enforcement of
company policy because they engage in protected and
concerted activity.
WE WILL NOT discharge, suspend, or otherwise co-
erce our employees because they engage in protected
concerted activities.
1167SEVERANCE TOOL INDUSTRIES
WE WILL NOT maintain or enforce a policy which
discriminatorily prohibits our employees from posting
union literature on our bulletin boards.
WE WILL NOT unilaterally and without notifying the
Union change our policy regarding the employees’ use
of the bulletin boards.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Anthony Van Deventer 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 any other rights or
privileges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his suspension and discharge, less any net
interim earnings, plus interest.
WE WILL rescind our unilateral change in policy of
April 1989 regarding our employees’ use of the bul-
letin boards and, on request, meet with the Union and
bargain in good faith with the Union as the exclusive
bargaining representative of unit employees concerning
wages, hours, and other terms and conditions of em-
ployment, including our policy regarding the employ-
ees’ use of the bulletin boards.
WE WILL remove from our files any reference to our
suspension and discharge of Anthony Van Deventer
and WE WILL notify him in writing that this has been
done and that evidence of the suspension and discharge
will not be used against him in any way.
SEVERANCE TOOL INDUSTRIES, INC.
Jerome Schmidt, Esq., for the General Counsel.
Robert A. Kendrick, Esq., of Saginaw, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried at Saginaw, Michigan, on December 4 and 5,
1989, based on a complaint dated June 19, 1989. The origi-
nal charge, filed on May 1, 1989, by International Union,
United Automobile Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO, was amended on
May 17 and on June 1, 1989. The complaint charges the Re-
spondent, Severance Tool Industries, Inc. (the Company)
with violations of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act (the Act), alleging, in substance,
that the Respondent had (a) threatened an employee because
of his union support, (b) discriminatorily enforced its policy
regarding the employees’ use of the bulletin boards, (c) uni-
laterally changed its policy with regard to the bulletin board,
and (d) suspended and thereafter discharged its employee
Anthony Van Deventer because of his protected concerted
activities and for his union activity.
The Company’s answer to the complaint admitted the ju-
risdictional allegations in the complaint and denied the com-
mission of any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Severance Tool Industries, Inc. is a
Michigan corporation engaged in the manufacture and non-
retail marketing of cutting tools at its location 3790 Orange
Street, Saginaw, Michigan. With purchases of goods and ma-
terials in excess of $50,000 directly from points outside the
State of Michigan, the Respondent is admittedly an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. Its approximately 75 production and
maintenance employees are supervised by a hierarchy of
managers and supervisors, including Robert Severance, presi-
dent; James Shalaty, executive vice president; John Pease,
production control manager; Archie Clauss, foreman; and
Randy Snyder, foreman. Snyder returned to a nonsupervisory
position on February 6, 1989, and left the Company effective
February 24, 1989.
The Union, International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW), AFL–CIO is admittedly a labor organization within
the meaning of Section 2(5) of the Act.
III. FACTS
The UAW commenced an organizational campaign at Re-
spondent’s facility in early 1989. The first organizational
meeting held on January 6, 1989, was attended by about 15
of the Company’s production employees. By letter of January
23, 1989, addressed to the president of the Company, Robert
Severance, the Union disclosed the names of the employees
comprising the organizing committee, including Anthony
Van Deventer (G.C. Exh. 3). Van Deventer obtained 34 of
the 43 signed authorization cards. Severance Tool Industries
opposed the Union’s campaign and posted a letter dated Jan-
uary 25, 1989, addressed to all employees in which it dis-
couraged the employees from signing union cards and getting
involved with the UAW. The letter states in its concluding
sentences (G.C. Exh. 43):
In fact, the UAW may end up hurting you, your fam-
ilies and the business. I urge you not to get involved
with the UAW or a situation that could quickly turn
against you.
By letter dated February 8, 1989, the Union responded to
a company letter of February 6, 1989, in an attempt to refute
some of the campaign rhetoric communicated to the employ-
ees (G.C. Exh. 25). In a memorandum dated March 9, 1989,
the Company again urged the employees to vote ‘‘No’’ at the
election. On March 16, 1989, an election was held where 74
votes were counted with 49 for the UAW and 23 against it,
while 2 votes were challenged (G.C. Exh. 8). The Union was
certified on March 24, 1989, as the bargaining representative
for the following employee unit (G.C. Exh. 9):
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time production and
maintenance employees, including stockroom clerks, in-
spectors, production control employees, tool processors,
machinists, truck drivers, heat treat and maintenance
employees, employed by Respondent at its facility lo-
cated at 3790 Orange Street, Saginaw, Michigan; but
excluding all office clerical employees, sales employ-
ees, confidential employees, guards and supervisors as
defined in the Act.
By letter of April 13, 1989, the Union notified the Com-
pany of the results of the election for the unit chairperson
and the composition of the bargaining committee. The four-
member bargaining committee included Anthony Van
Deventer (G.C. Exh. 23).
The Respondent’s conduct during and after the union cam-
paign showed its hostility towards the Union, as examplified
by the following incidents. Early in the campaign, Supervisor
Randy Snyder was observed by several employees as he
threw a union letter on a workbench and stated: ‘‘All of you
guys on second shift putting your name on the organizing
committee makes me look awful bad. You better plan on
workin’ your asses off and stayin’ in your work area’’ (Tr.
126, 140).
According to the testimony of a former supervisor, Rich-
ard Akright, Robert Severance, Respondent’s president, told
him to get rid of Paul Hausen, an employee, because he was
a troublemaker. When Akright expressed his disagreement
with Severance’s criticism, Severance replied, ‘‘how do you
explain his union activity’’ (Tr. 17). According to Akright,
Severance also said that he would fight the Union ‘‘at all
cost’’ and ‘‘could always relocate and just move down
south’’ (Tr. 20).
Several employees testified about Respondent’s discrimi-
natory policy regarding the bulletin boards. Employees were
permitted to use the Company’s bulletin board for personal
notices, such as social or church functions and items for sale.
However, notices by and about the Union were quickly re-
moved by the Respondent or simply disallowed. The General
Counsel argues that the Respondent changed its policy about
the employees’ use of the bulletin board without any negotia-
tion with the Union.
On March 17, 1989, the local paper reported the union
election at the plant. Among other statements, President Sev-
erance was quoted to say that he ‘‘was dismayed that we had
a union’’ (G.C. Exh. 32). Severance testified that it was an
accurate statement (Tr. 196).
Shortly after an incident in the office of the company
president on April 25, 1989, the Respondent suspended and
discharged one of the most active union activists, Anthony
Van Deventer. The Respondent maintains that the employee
was discharged for insubordination (G.C. Exh. 17). The Gen-
eral Counsel submits that the discharge occurred as a result
of Van Deventer’s protected concerted activity and his union
activity.
The Respondent’s conduct relating to Supervisor Snyder’s
threat and its policy relating to the use of the bulletin boards,
as well as the discharge of Van Deventer, are the subject of
the specific alleations in the complaint.
The Alleged Threat. On January 25, 1989, Supervisor
Randy Snyder noticed a union letter posted on the bulletin
board listing the names of several employees on the orga-
nizing committee. Michael Crapo, an employee under the su-
pervision of Snyder at that time, testified that Snyder tossed
the letter on the workbench and said, ‘‘All of you guys on
second shift putting your name on the organizing committee
makes me look awful bad. You better plan on workin’ your
asses off and stayin’ in your work area’’ (Tr. 126). Employee
Michael Holvey corroborated the incident and immediately
prepared a written note about it (Tr. 140–144); (G.C. Exh.
28). Snyder did not testify about the incident. In agreement
with the General Counsel, I find that Snyder’s statement was
a threat of more onerous working conditions and stricter en-
forcement of company policy because of the employees’
union support. Such threats interfere with the employees’
rights under Section 7 of the Act and violate Section 8(a)(1)
of the Act.
The Respondent argues that it disciplined Snyder and sent
him home following the incident in order to investigate the
matter. Thereafter, Snyder left his supervisory position in
early February and ultimately left his employ with the Com-
pany. Significantly, the Respondent posted a ‘‘Notice To All
Employees’’ on March 22, 1989, which, among other things,
states as follows (G.C. Exh. 12):
With regard to statements alleged to have been made
by Randy Snyder, former supervisory employee of Sev-
erance Tool Industries, where he allegedly threatened
Severance employees with harsher working conditions
because of employees’ union activities, Severance Tool
Industries disavows any such statement and assures em-
ployees that, if made, it was not made with the sanc-
tion, knowledge or permission of Severance Tool Man-
agement.
A majority of Severance employees have now indicated
their desire for UAW representation through the NLRB
secret ballot election process. We repeat again what we
said last Friday in our letter to employees: Severance
Tool Industries will not discriminate against any em-
ployee on the basis of his or her union activities or sup-
port.
Although the record shows that Snyder was placed on a
paid leave of absence while the Respondent conducted a
brief investigation of the matter, Snyder’s demotion was ap-
parently unrelated to this incident. John Pease, Respondent’s
plant manager, testified that he investigated the matter but
‘‘couldn’t substantiate those rumors’’ (Tr. 285). Pease also
testified that Snyder asked to be relieved of his supervisory
responsibility without indicating his reasons. Snyder subse-
quently left the Company. While this development may have
been coincidental, it is clear that the seriousness and any
lasting effect of the threat was thereby diminished. The Re-
spondent’s written disavowal was unequivocal and effective.
To be sure the record does not show how long the notice
was posted or how many employees read it, but the record
is clear that the notice was effectively communicated to the
employee who was the target of the threat. Employee Holvey
testified that he heard that the Company disavowed Snyder’s
statements (Tr. 146).
In view of the Company’s reaction to the incident—the in-
vestigation of Snyder, his leave of absence, and the written
repudiation—and considering the departure of Snyder as a
supervisor and as an employee, I find that the incident be-
1169SEVERANCE TOOL INDUSTRIES
came de minimis without the need for a formal finding of
a violation of the Act and an order to cease and desist.
The Discharge of Anthony Van Deventer. On April 25,
1989, after meeting with Robert Severance, Respondent’s
president, during the Company’s ‘‘speak easy program’’ An-
thony Van Deventer was suspended for 3 days and effec-
tively discharged on April 28, 1989 (G.C. Exh. 29). Since his
employment on August 21, 1988, as a tool changer and
grinder, Van Deventer had been a satisfactory employee as
shown by his ‘‘performance appraisal forms.’’ They show on
a scale of 0 to 4, that he received points in various categories
averaging 2.5 and 3 (G.C. Exhs. 19–21). His most recent ap-
praisal, dated April 24, 1989, only 1 day prior to the incident
on April 25, also shows a good performance record (G.C.
Exh. 19). He was one of the most active union supporters.
He attended the Union’s first organizational meeting on Jan-
uary 6, 1989, and he signed a statement on January 12, 1989,
consenting to the Union’s use of his name in a letter to the
Company advising it that he was on the organizing com-
mittee. His name appeared with several other employees’
name on a letter of January 23, 1989, listing the Union’s or-
ganizing committee (G.C. Exhs. 2, 3). He distributed union
authorization cards and was responsible for posting many
union posters on the Company’s bulletin boards (Tr. 31, 34–
37). He was listed on a letter, dated April 13, 1989, as one
of the employees who was elected to the bargaining com-
mittee (G.C. Exh. 23), and appeared as a day-shift represent-
ative on a notice, dated April 19, 1989, entitled ‘‘Member-
ship Meeting’’ (G.C. Exh. 24). During the March 16 elec-
tion, Van Deventer functioned as the Union’s observer. The
Company was obviously aware that this employee was one
of the most active union supporters (Tr. 39–40, 210–211).
On April 4, 1989, Paul Hausen, an employee, talked to
Van Deventer about the amount of vacation pay. This
prompted Van Deventer to inquire of John Pease whether
employees were entitled to 6 percent of their first year’s
wages as vacation pay. Pease, according to Van Deventer,
acknowledged that first-year employees were entitled to 2
percent in addition to 4 percent of their first year’s pay (Tr.
53–54). On April 18, 1989, Kevin Harns, another employee,
approached Van Deventer stating that his vacation pay re-
flected only 4 percent of his wages. On April 19, 1989, Van
Deventer met with Pease to discuss Harns’ complaint. Pease
simply referred to the Company’s handbook providing for 4-
percent vacation pay. Van Deventer then attempted to meet
with Vice President Shalaty to resolve this issue, but was un-
successful. Van Deventer finally used the Company’s
‘‘Speak Easy Program.’’ He completed a form, dated April
21, 1989, in which he explained that Paul Hausen and he
were under the impression that their vacation pay would
amount to 2 percent plus 4 percent of their gross pay and
that he wanted ‘‘an explanation of this problem’’ (G.C. Exh.
15). Severance agreed to meet with Van Deventer on April
25, 1989, at 8:55 a.m. That meeting lasted approximately 5
or 6 minutes.
Van Deventer remembered that Severance received him in
his office holding a manila folder with his name on it and
recalls the episode as follows. Severance asked him about his
problem. Van Deventer replied that Hausen and he expected
a higher percentage in vacation pay and explained his prior
conversation with John Pease. When Van Deventer suggested
that he could call in Hausen as a witness, Severance said that
the meeting concerned only him and not Hausen. Severance
then referred to the employee handbook saying that he did
not understand what the confusion was. Severance also said
that he had known Pease for 12 years and Van Deventer for
only 1 year. When he replied that Severance had only known
him since the organizing drive, Severance became a little
upset and raised his voice a little, saying: ‘‘As far as I am
concerned, this conversation is over.’’ Van Deventer told
Severance that he would report to the membership the Com-
pany’s promise of a portion of vacation pay and the subse-
quent denial of it; he also tried to complain about his per-
formance evaluation. At that point, Severance told Van
Deventer to leave his office. Van Deventer left the office and
on his way out said: ‘‘Son of a bitch’’ (Tr. 63–65). Van
Deventer denied slamming the door on his way out or raising
his voice during the meeting.
Severance recalled the episode somewhat differently. He
testified as follows (Tr. 191–193):
So, I moved around the desk and asked Anthony what
his problem was. He said, ‘‘Paul Hausen and I have a
problem and we want to discuss it.’’ I said, ‘‘Well, An-
thony, I cannot discuss Paul Hausen’s problem with
you. I can only discuss your problem. . . .’’ He started
telling me that he had been promised a 2 percent and
then another 4 percent vacation pay by John Pease. I
told him I didn’t understand how that could happen be-
cause you had to work a whole year in order to get a
gross pay amount so you could figure 2 percent on it.
. . . He told me that John Pease had promised him that.
. . . I went around my desk and I opened a drawer, and
brought out a handbook and brought it around, and
started to show it to him. That’s when he said, ‘‘Oh,
come on, Bob,’’ and he started yelling at me. He was
telling me that I didn’t trust him and I didn’t believe
him . . . and I didn’t believe anything that the employ-
ees said. When he started telling me things like that I
said, ‘‘Well, Anthony, this discussion is over. I don’t
like to be yelled at in my office and there is nothing
more to say. If that’s the way it is you can leave.’’ He
said, ‘‘Well, I want to talk to you about my evalua-
tion.’’ I said, ‘‘No, Anthony. We only discuss one sub-
ject at a time. If you want to come and talk about your
evaluation at another time, that’s all right.’’ And then
he got real angry and I said, ‘‘Anthony, I asked you not
to yell in my office. Now, please, leave. We are
through with our discussion.’’ He went over and
opened the door and banged it back against the wall.
He said, ‘‘I’m going to tell everybody what your true
colors are and plaster it all over the place,’’ and with
that he stormed out of my office.
Severance testified that he did not hear the exclamation,
‘‘son of a bitch’’ and explained that he decided to fire Van
Deventer not because of his union involvement, but because
‘‘he was yelling at [him] and he was threatening to tell ev-
erybody what the company’s true colors were . . . [and] that
he was going to plaster everything all over the walls’’ (Tr.
194). Severance further testified that he consulted with Pease
and Shalaty prior to his decision to fire Van Deventer and
that the employee’s ‘‘belligerent attitude’’ towards him in his
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Van Deventer impressed me as a somewhat arrogant, aggressive, and per-
sistent individual who would not hesitate to act in a defiant and disrespectful
manner towards his superiors.
2 I do not credit Bradshaw’s recollection of the use of that term with the
prefix ‘‘you.’’ 3 The handbook received as G.C. Exh. 4 is missing in the exhibit file.
office and the statement ‘‘son of a bitch’’ which had been
reported to him were his reasons for the discharge (Tr. 217).
Shalaty testified that he witnessed the episode because his
office is located next to that of Severance. He heard the
voice of Van Deventer yelling for some time in Severance’s
office, and as the door flung open he heard the remark, ‘‘he
was going to plaster the walls with something that would re-
veal the true nature of his being’’ and the term ‘‘son of a
bitch.’’ Shalaty explained the decision to fire Van Deventer
for the following reason (Tr. 171):
Yes he acted in an intimidating and extremely dis-
respectful manner to the President. He threatened to
discredit his personal reputation and he called him a
‘‘son-of-a-bitch.’’
Pat Ortega, Respondent’s personnel coordinator, testified
that she happened to walk past Severance’s office on that
morning and was surprised to hear excessively loud talking.
She learned from the switchboard operator that Van Deventer
was in that office. She could not overhear what was said be-
cause she continued walking by the office.
The manager of the metals division, Gilbert Bradshaw, tes-
tified that his office is about 15 feet from Severance’s door.
He ‘‘heard a little commotion when the door swung open’’
and when Van Deventer walked past his door he heard ‘‘You
son-of-a-bitch’’ (Tr. 319).
In view of the consistent and credible testimony of Re-
spondent’s witnesses, I credit Severance’s recollection of the
episode and find that Van Deventer1 raised his voice in a
disrespectful manner in Severance’s office, and walked out
of the office making a statement to the effect that he would
post on the Company’s walls his version of the vacation pay
controversy. He also said ‘‘son of a bitch’’ after he had left
the office, although it is not clear whether the term was
merely used as a general curse or as a defamatory remark
of the Company’s president.2 I also credit the Respondent’s
consistent testimony that the Respondent discharged the em-
ployee solely as a result of this episode. Had the Respondent
intended to find a pretext to rid itself of a persistent union
activist, it would not likely have given him an acceptable or
good performance rating only 1 day before this event. To be
sure, the record reflects Respondent’s open antiunion animus.
However, the record does not reveal a deceitful and plotting
respondent. To the contrary, Severance’s testimony was
straightforward without any apparent attempt to overstate the
incident. He and Shalaty, Respondent’s two highest execu-
tives, testified credibly and consistently that Van Deventer
was discharged for his conduct during the April 25 episode,
which the Respondent considered to be insubordinate, dis-
respectful, and belligerent. Severance, who maintains a reli-
gious atmosphere at the plant, was obviously taken aback by
this employee’s aggressive and defiant outburst.
Nevertheless, the record is also clear that Van Deventer’s
actions in protesting the vacation pay issue constituted pro-
tected concerted activity. Having been elected a member of
the Union’s bargaining committee, he assumed a certain rep-
resentative status among the employees; moreover, it is
uncontroverted that the vacation pay issue was the concern
of his fellow employees. Even though the ‘‘Speak Easy Pro-
gram’’ may have been intended by the Respondent to pro-
vide a forum for individual meetings, it is clear that Van
Deventer, having failed to clarify the issue with Pease, used
the procedure as a last resort to resolve the controversy on
behalf of other employees. Indeed, as a result of this meet-
ing, the Respondent issued a memorandum to all employees
clarifying the vacation pay policy (G.C. Exh. 33). One of the
reasons for the discharge was Van Deventer’s statement to
Severance that he intended to inform the employees of the
Company’s ‘‘true colors.’’ Van Deventer’s conduct clearly
constituted concerted activity. Pacific Mutual Insurance Co.,
284 NLRB 163 (1987). The record further shows that Van
Deventer’s conduct during the meeting was protected by Sec-
tion 7 of the Act, and that the evidence of disrespect, rude-
ness, and the use of vulgar language was insufficient to deny
him the protection of the Act. It is well established that a
‘‘certain amount of salty language and defiance’’ must be
tolerated during such confrontations. NLRB v. Chelsea Lab-
oratories, 825 F.2d 680, 683 (2d Cir. 1987); Syn-Tech Win-
dows Systems, 294 NLRB 791 (1989). Even though the Re-
spondent characterized Van Deventer’s conduct as insubordi-
nate, belligerent, and threatening, the record only supports a
finding of disrespectful, rude, and defiant demeanor and the
use of a vulgar word. Under these circumstances and in the
absence of any threats of violence, actual insubordination, or
acts of violence, it is clear that the Respondent overreacted
and thereby violated Section 8(a)(1) of the Act.
The Company’s Bulletin Boards. The complaint alleges
that the Respondent enforced its policy regarding the posting
of literature on the Company’s bulletin boards in a discrimi-
natory fashion and unilaterally changed its policy without
bargaining with the Union. The record shows that the Re-
spondent had a policy requiring prior approval of the plant
manager for items posted on the bulletin boards.3 However,
the policy was not enforced with respect to personal notices
such as items for sale. Employees testified that they put no-
tices on the bulletin board without prior approval (Tr. 48,
132, 135). Employee James Yearta testified that he saw no-
tices for ‘‘fish fry and the church deals and dances’’ and
items for sale such as a ‘‘quad runner,’’ a type of rec-
reational vehicle (Tr. 114). Michael Crapo testified that he
observed postings on the bulletin boards like ‘‘things for
sale, a wedding invitation’’ (Tr. 130). Brian Senn, an em-
ployee, similarly recalled seeing ‘‘signs for fish frys, eggs for
sale [and] . . . a wedding invitation’’ (Tr. 130). Michael
Holvey and Paul Hausen also saw these postings (Tr. 145,
154).
Union notices, however, were removed from the bulletin
boards by company officials. Dennis Harns observed John
Pease take down union notices in January 1989 (Tr. 162–64.)
According to Harns, Pease did not remove personal notices
from the bulletin boards. Employee Brian Bolt observed the
same incident where Pease meticulously removed several
union posters while ignoring other personal notices (Tr. 224).
Yearta testified that on April 19 he sought the approval from
John Pease to post a union document. Pease reviewed the
material and said that he would consult with Shalaty. Pease
1171SEVERANCE TOOL INDUSTRIES
4 In an effort to show consistency, Supervisor Clauss instructed Senn in Feb-
ruary 1989 to remove a notice for sale (Tr. 136). But this was an isolated in-
stance.
5 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.
returned later and said that Shalaty had denied the request
(Tr. 113–114). Pease also told Yearta that Respondent’s pol-
icy was to disallow any union postings (Tr. 116). Pease ad-
mitted removing union literature from the bulletin boards but
could not remember whether he also removed a personal no-
tice. He stated that the union material was posted without
prior permission (Tr. 273–274).
In short, the record shows that the Respondent generally
permitted employees to use the bulletin board for personal
notices, but removed union-related notices or refused to give
prior approval for union material.4 Respondent’s discrimina-
tory enforcement of its policy prohibiting the posting of
union-related material on its bulletin boards violates Section
8(a)(1) of the Act. St. Anthony’s Hospital, 292 NLRB 1304
(1989).
The record is also clear that the Respondent removed the
old bulletin boards one day in April 1989, ‘‘replacing them
with glassed-in bulletin boards immediately that same day’’
(Tr. 50, 117). The glass-encased bulletin boards were locked,
and employees were prevented from using them for any pur-
pose without the Company’s approval. This constituted a
change in policy because the employer had tolerated the
posting of personal notices prior to that. Because the Union
had been selected as the employees’ exclusive bargaining
representative as of March 24, 1989, Respondent’s actions in
this regard without notifying the Union or offering to bargain
with it, constituted a unilateral change in policy. I, accord-
ingly, find that the Respondent violated Section 8(a)(1) and
(5) of the Act, as alleged in the complaint.
CONCLUSIONS OF LAW
1. Severance Tool Industries, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. By suspending and discharging Anthony Van Deventer
because of his protected concerted activities, the Respondent
violated Section 8(a)(1) of the Act.
3. By discriminatorily prohibiting employees from posting
union literature on the Company’s bulletin boards, the Re-
spondent violated Section 8(a)(1) of the Act.
4. By unilaterally and without notifying and bargaining
with the Union changing its policy regarding the employees’
use of the bulletin boards, the Respondent violated Section
8(a)(5) and (1) of the Act.
THE REMEDY
On concluding that the Respondent has engaged in certain
unfair labor practices, I find it necessary to recommend that
it cease and desist therefrom and take certain affirmative ac-
tion necessary to effectuate the policies of the Act. Having
unlawfully discharged Anthony Van Deventer, the Respond-
ent shall offer him reinstatement and make him whole for
lost earnings and other benefits computed on a quarterly
basis from the date of discharge to the date of a proper offer
of reinstatement, less net interim earnings in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Severance Tool Industries, Inc., Saginaw,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, suspending, or otherwise coercing em-
ployees because they engage in protected concerted activities.
(b) Maintaining or enforcing a policy that discriminatorily
prohibits employees from posting union literature on its bul-
letin boards.
(c) Unilaterally and without notifying the Union changing
its policy regarding the employees’ use of the bulletin
boards.
(d) Failing to notify the Union or affording the Union an
opportunity to bargain with it as the exclusive bargaining
representative of the employees in the following unit:
All full-time and regular part-time production and
maintenance employees, including stockroom clerks, in-
spectors, production control employees, tool processors,
machinist, truck drivers, heat treat and maintenance em-
ployees, employed by Respondent at its facility located
at 3790 Orange Street, Saginaw, Michigan; but exclud-
ing all office clerical employees, sales employees, con-
fidential employees, guards and supervisors as defined
in the Act
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Anthony Van Deventer immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him, in
the manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge of Anthony Van Deventer and notify the employee
in writing that this has been done and that the discharge will
not be used against him in any way.
(c) Rescind its unlawful change in policy of April 1989 re-
garding the employees’ use of the bulletin boards and, on re-
quest, meet with the Union and bargain in good faith with
the Union as the exclusive bargaining representative of the
employees in the unit concerning wages, hours, and other
terms and conditions of employment, including its policy re-
garding the employees’ use of the bulletin boards.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, 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 Order.
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(e) Post at its Saginaw, Michigan facility copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.