Simplex Wire & Cable Co.

National Labor Relations Board - Board Decisions

May 26, 1994

313 N.L.R.B. 1311 (N.L.R.B. 1994)

1311
313 NLRB No. 240
SIMPLEX WIRE & CABLE CO.
1 On October 27, 1993, Administrative Law Judge Michael O. Mil-
ler issued the attached decision. The Respondent filed exceptions and
a supporting brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 The charge in Case 1–CA–29724 was withdrawn prior to hearing
and General Counsel’s motion to withdraw the complaint therein
was granted.
2 The complaint included an allegation of an 8(a)(4) violation
which the General Counsel did not pursue.
Simplex Wire and Cable Company and Timothy
Giaimo. Case 1–CA–29899
May 26, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
Issues presented for Board review in this case1 are
whether the judge correctly found that the Respondent:
(1) violated Section 8(a)(1) of the Act by prohibiting
employees from engaging in union or other protected
concerted discussion; and (2) violated Section 8(a)(3)
of the Act by discharging employee Timothy Giaimo.
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 brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions 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, Simplex Wire and Cable
Company, Newington, New Hampshire, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
William F. Grant, Esq., for the General Counsel.
Peter R. Kraft, Esq. (Verrill & Dana), for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Portsmouth, New Hampshire, on July 26
and 27, 1993, based on a charge1 filed by Timothy Giaimo,
an individual, on October 30, 1992, as amended, and a com-
plaint issued by the Regional Director of Region 1 of the Na-
tional Labor Relations Board (the Board), on January 28,
1993. The complaint alleges that Simplex Wire and Cable
Company (Simplex or Respondent) violated Section 8(a)(1)
and (3)2 of the National Labor Relations Act, by prohibiting
its employees from engaging in union or protected concerted
activities and by discharging Timothy Giaimo, its employee,
because he had engaged in such activities. Respondent’s
timely filed answer denies the commission 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 counsel for the General Counsel and counsel for
Respondent, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS
Preliminary Conclusions of Law
The Respondent is a corporation with offices and a plant
in Newington, New Hampshire, where it manufactures and
sells wire and cable. In the course and conduct of its busi-
ness operations during the calendar year ending December
31, 1992, Respondent sold and shipped goods valued in ex-
cess of $50,000 directly to points located outside the State
of New Hampshire. The complaint alleges, the Respondent
admits, and I find and conclude that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that Teamsters Local 633, International Brother-
hood of Teamsters, AFL–CIO (the Union) is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Prior to its decertification in August 1989, the Simplex
employees were represented by the International Brotherhood
of Electrical Workers (IBEW). During 1990 and 1991,
Teamsters Local 633 conducted an organizing campaign, cul-
minating in an election in February 1991, which the Union
lost. Timothy Giaimo, the charging party herein, was one of
the employees who was in contact with the representatives
of that union; he also passed out authorization cards and pro-
vided information to other employees. At the time of the
events of this case, the Simplex employees were not rep-
resented by any union.
B. The Existence of, and Employee Discussions
About, Lists
During the organizational campaign in late 1990, Respond-
ent prepared a list purporting to identify those employees
who favored the Union, those who opposed it, and those who
were undecided. The conclusions were based on judgments
of the supervisors. The stated purpose of this ‘‘yes, no,
maybe’’ list, as John Conley, Simplex’s director of human
resources, characterized it, was to count up potential votes
and identify those who were on the fence. Initially, the em-
ployees were unaware of this list. After the election, it was
turned over to counsel.
1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All dates hereinafter are 1992 unless otherwise specified.
4 While Giaimo’s testimony was somewhat more detailed than that
of Twist, their versions are essentially consistent. Twist was an en-
tirely credible witness, no longer in Respondent’s employ. The
record does not explain the circumstances of her termination.
5 Conley’s version is not meaningfully different from Giaimo’s.
While Conley did not admit threatening Giaimo with termination for
making a false accusation, he did not deny that he had done so. His
testimony concerning the application of Respondent’s ‘‘candor rule,’’
discussed infra, implicitly acknowledges a threatened application of
that rule to Giaimo.
6 McCallion acknowledged having a conversation with Giaimo re-
garding Goodberry’s discharge but denied mentioning any lists. Not-
ing McCallion’s strong animosity toward Giaimo and the fact that
the statement he gave Respondent refers to a conversation with
Goodberry wherein Goodberry told him about seeing a list allegedly
related to absenteeism, and further noting the statement which em-
ployee DeCourt gave to Roy concerning Goodberry having seen a
list of people to be terminated when he was in O’Leary’s office and
the currency of discussion among the employees about such a ‘‘hit
list,’’ as discussed infra, I credit Giaimo and find that McCallion
said something to him about Goodberry having seen a list in
O’Leary’s office. Given the atmosphere in the plant which was cre-
ated by the acknowledged ‘‘Trouble 8-Pack’’ list and what Conley
referred to as the ‘‘yes, no, maybe’’ list, it is hardly surprising that
Giaimo may have concluded that such a list placed employees
named thereon in jeopardy.
A second list surfaced some time in 1991. That list, hand-
written on a piece of paper torn from a small notebook, list-
ed eight names under the heading ‘‘Trouble 8 Pack.’’ Along
one side, it bore the words, ‘‘Tank Issues.’’ Outside a brack-
et connecting the eight names it stated, ‘‘reinforce positive
attitudes.’’ This list was posted in the armorless department
where Giaimo worked and in other departments.
Not surprisingly, the ‘‘Trouble 8 Pack’’ list became a sub-
ject of discussion among the employees. While it had been
prepared by an acting supervisor merely to note people
whom she perceived to have negative attitudes, it gave rise
to speculation that the Employer was maintaining a list of
union sympathizers or ‘‘troublemakers.’’
In July 1992,3 Giaimo received a warning which he be-
lieved to be unwarranted. He called Patricia Twist. Twist had
been the manager of compensation and benefits and office
manager for human resources; she was on leave from the be-
ginning of 1992 until the end of July in that year, when her
employment ended. He asked whether she thought the warn-
ing unusual and whether his job was in jeopardy. Twist in-
quired of him how he was perceived by his managers and
supervisors. Giaimo asked what that had to do with anything
and she told him of the list which had been maintained dur-
ing the union campaign, saying that the ‘‘thought can stay
in the mind of them.’’4
Giaimo told other employees of his conversation with
Twist. The existence of such a list as she had described be-
came a topic of conversation among the employees, some of
whom questioned Giaimo to ask if Twist had really said that
a list existed. Management was aware of the rumors concern-
ing lists; it was also aware that the employees were con-
cerned that Respondent was maintaining lists of employees
based upon their union sympathies. The employees worried
that management considered such employees to be ‘‘trouble-
makers.’’
In September, employee Patrick Chase visited Giaimo out-
side of work, told him of a warning he had received, and
asked about the list which Twist had mentioned. As Giaimo
recalled their conversation, he told Chase that it was a list
of troublemakers and union sympathizers and Chase replied
that his name must be on the list because he had been in-
volved with the IBEW. Chase recalled Giaimo mentioning
the list, stating that it was kept in the personnel department;
when Chase asked if his name was on it, Giaimo told him,
‘‘No.’’
On September 2, Giaimo received a written warning for
reading a newspaper while on the job. He protested the
warning to Paul O’Leary, his supervisor, and asked to speak
with Conley. After a discussion with O’Leary, Conley was
summoned. Giaimo protested the warning. Conley said that
they had to start with someone and were making an example
of him. Giaimo then said, ‘‘I understand that you maintain
a list of people that are considered troublemakers and union
sympathizers and I want to know if my name is on the list
because it seems highly unusual the way this thing is all
coming about.’’
Giaimo’s remark hit a nerve. Conley got upset, came out
his chair, red in the face, and said that Giaimo was accusing
him of having a hit list. He claimed, ‘‘It’s a defamation of
my character. I never did such a thing . . . You better be
able to prove that, Tim.’’ Giaimo said that he could and was
warned, ‘‘You know that making false accusations like that
could lead to termination.’’ Giaimo insisted it was not false
and, when asked who had told him about such a list, referred
to his conversation with Patricia Twist. In the course of the
conversation, Conley acknowledged that a list of union sym-
pathizers had been maintained so that management could
keep track of who was going to vote for the Union.5
On October 17, according to Giaimo, he was approached
by Don McCallion, another employee in his department.
McCallion told Giaimo of a conversation he had had with a
recently terminated worker, Jeff Goodberry. McCallion said
that when Goodberry had been in O’Leary’s office being dis-
charged, he had seen list of employees who were slated to
be discharged. On that list, purportedly, was the name of Pat-
rick Chase. He related that John Conley had observed
Goodberry reading the list and had pulled it from his hand.6
After Goodberry’s discharge, the existence of a ‘‘hit list’’
was a hot topic among the employees. Employee Craig
DeCourt testified that there was a lot of talk about it. In a
statement which DeCourt gave Roy on October 20 [in con-
nection with Respondent’s investigation of Giaimo’s con-
duct], DeCourt stated that the talk started after Goodberry’s
discharge, that he had heard that Goodberry had seen a list
in O’Leary’s office and that he probably told some other em-
ployees about it.
C. Events Leading to Giaimo’s Discharge
On October 19, management called a meeting of about 20
to 25 armorless department employees to deal with rumors
in the plant. They met with Wilfred Roy, that department’s
technical manager, Paul O’Leary, manager, and the present
and past foremen, Joyce Wilkinson and Mark Roux. O’Leary
started out the meeting by stating that they were having
problems with rumors. He discussed rumors about a layoff,
about Simplex failing to get a contract with one customer,
and about the termination of one employee. He then referred
1313SIMPLEX WIRE & CABLE CO.
7 To the extent that it makes any difference, I find Giaimo’s recol-
lection of the events superior to that of Chase. Giaimo’s version is
essentially consistent with the version of that conversation which
Chase related to Janice Casavant.
8 That statement, which reads as if she witnessed the conversation,
asserts that Giaimo told Chase ‘‘that McCallion said that Jeff
Goodberry, while he was in Paul O’Leary’s office had seen a hit list
of people who were going to be fired.’’ It does not assert that
Giaimo told Chase that his name was on it.
to ‘‘the rumors of me having a hit list or my management,’’
and said, ‘‘You people put me in this position because you
like me and I feel I’m an honest individual.’’ He continued,
‘‘We never have maintained any kind of list whatsoever at
Simplex. . . . We don’t want to have any rumors going
around. There is no hit list. If you want to talk to Bill [Roy]
or myself, we’ll be glad to talk to you about anything that
concerns you.’’
Neither Giaimo nor Roy testified concerning any direct ad-
monition at the October 19 meeting against further discus-
sions of the ‘‘hit list’’ rumor. However, in the October 29
discharge letter sent to Giaimo (discussed infra), Roy wrote
that at that meeting both O’Leary and he had advised the
employees that the rumors about a ‘‘hit list’’ were false ‘‘and
that such rumors should no longer be a topic of comment in
the plant,’’ that any questions or concerns about the rumor
should be raised at the meeting or in private discussions with
management. Giamo’s refusal to comply with this directive
was deemed ‘‘blatantly insubordinate’’ and was one of the
reasons given for his termination.
Following this meeting, Giaimo spoke with Patrick Chase
on the smoking dock. As Chase recalled their brief exchange,
Giaimo said, ‘‘I don’t know if I’m going to be your buddy
or not . . . but I heard from Jeff Goodberry that a [hit] list
is going around and your name is on it.’’ He told Chase that
he did not believe O’Leary when O’Leary said that he did
not have any list. Giaimo, Chase testified, did not mention
McCallion or attribute the list to Conley. Chase told Giaimo
that he did not believe that there was any ‘‘hit list.’’ In his
testimony, Chase described Giaimo as relating the informa-
tion as if he knew a ‘‘great secret.’’ He testified that Giaimo
‘‘was speaking sort of like he knew a big thing. Like ‘‘ha-
ha’’ . . . I found out about a hit list. Your name is on it.’’
Chase, however, did not describe Giaimo’s manner of relat-
ing the information when he gave Respondent a statement.
According to Chase, Giaimo had also made a similar state-
ment to him either earlier that day or during the preceding
day.
Giaimo recalled their conversation somewhat differently.
He claimed that he had heard that other employees had been
teasing Chase about being named on a hit list purportedly
maintained by O’Leary and sought to reassure him that it
was Conley, not O’Leary, who was Chase’s manager, who
had such a list. As Giaimo recalled it, he told Chase of his
conversation with McCallion in which McCallion had related
what Goodberry had supposedly seen.7
Chase returned to his work station. He described himself
as being ‘‘kind of upset’’ but he had no intention of report-
ing Giaimo’s comments to management. However, he men-
tioned them to a coworker, Janice Casavant. She became
upset and told Chase that if he did not report the conversa-
tion to his supervisor, she would. Casavant reported the con-
versation to Roux, her supervisor. At Roux’s request, she re-
peated it again to O’Leary and gave O’Leary a written state-
ment.8 Without waiting to be paged, Chase went to the office
where he also gave a statement. According to that statement,
Giaimo told Chase that Goodberry had reported seeing a hit
list in O’Leary’s office; that list included Chase’s name.
Chase further related to management that Giaimo had said
that he did not believe O’Leary’s disclaimer regarding the
list and that he, Chase, told Giaimo that he did not believe
that there was any hit list.
Management also took statements from McCallion and
Craig DeCourt. On October 20, Conley and Roy called
Giaimo in and told him that an employee had made a charge
against him that he had violated company policy in that he
had circulated a ‘‘malicious rumor’’ about a manager and
employee of Simplex. They asked him what had happened
and he gave them a verbal statement. According to the notes
which management made of this interview, Giaimo reiterated
that he merely told Chase what he had been told by
McCallion. He denied saying that he did not believe O’Leary
but repeated his belief that Conley had a list. Conley told
Giaimo that he was being suspended pending investigation
on the basis of an allegation from an employee ‘‘that you
have undermined a manager . . . made a statement to a fel-
low employee on the credibility of a manager’s authority.’’
Reference was made to Respondent’s candor rule and work
rule 23.
The ‘‘Employee Candor’’ rule, set forth in an interoffice
letter of January 13, 1992, prohibited ‘‘unfounded, defama-
tory or malicious statements about a co-worker’’ under threat
of discipline up to and including discharge. Work rule 23
similarly prohibited employees from ‘‘Making false or mali-
cious statements concerning any employee, the Company or
its products.’’
Giaimo was questioned again on October 26 and, once
again, management took notes of the interrogation. At that
time, Giaimo repeated his denial that he had impugned
O’Leary’s credibility. He reiterated that he had said that it
was Conley who had the list. In the course of this meeting,
he asked for and was given a copy of Respondent’s ‘‘Em-
ployee Candor Policy.’’ He was also told that there were two
issues under investigation. The first was ‘‘making a false and
malicious statement about a manager.’’ The second was what
he had said to Chase ‘‘concerning his employment status.’’
On October 29, Giaimo was given a letter setting forth the
basis for his discharge. It listed seven conclusions:
1. That Giaimo told Chase that O’Leary had a ‘‘hit
list’’ with Chase’s name on it.
2. That his comment to Chase ‘‘perpetrated the false
rumor of the existence of a management created hit
list.’’
3. That he disregarded the directives of Roy and
O’Leary to the effect that there was no hit list and that
the rumors of a hit list ‘‘should no longer be a topic
of comment in the plant.’’
4. That his comments to Chase about the existence
of a hit list were in ‘‘direct violation of Mr. O’Leary’s
instructions restricting further talk about the ‘hit’ list.’’
5. That his comments to Chase were found to be
false in that his alleged sources of information regard-
ing the hit list [McCallion and Goodberry] had denied
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 It is certainly arguable, given the admitted existence of both the
‘‘yes, no, maybe’’ list and the ‘‘Trouble 8-Pack’’ list, that both
Roy’s statements at the meeting and this claim in the letter violated
Respondent’s own rules respecting candor.
10 Noting that discussion of the lists was ‘‘rampant’’ in the plant,
dealt specifically with fears that the list or lists were of those em-
ployees destined for discharge because of their union activity and
was thus intended to enable those employees to avoid discharge, that
Respondent’s own actions precipitated the discussions (as discussed
herein), that Respondent was aware that employees were engaging
in such discussions and that Respondent treated those discussions as
a problem involving the employees as a group when it held its Octo-
ber 19 meeting, I must conclude, in agreement with the General
Counsel, that these discussions or rumors were also protected con-
certed activity. Meyers Industries, 281 NLRB 882 (1986), enfd. 835
F.2d 1481 (D.C. Cir. 1987). See also Elston Electronics Corp., 292
NLRB 510, 511 (1989) (activities of employee Riek), and Whittaker
Corp., 289 NLRB 933, 934 (1988).
11 If there was any question whether O’Leary’s words at that time
could be construed as an order to that effect, the issue was clarified
by Giaimo’s discharge letter, signed by Roy. In that letter, Roy re-
ferred to his and O’Leary’s ‘‘instructions restricting further talk
about the ‘hit’ list rumor,’’ characterized Giaimo’s continued discus-
sion of the ‘‘hit list’’ rumor following the October 19 meeting as
‘‘blatantly insubordinate’’ and listed his ‘‘insubordinate failure to
follow management instructions to stop spreading a rumor’’ as one
of the grounds for his discharge.
telling him about such a list and there were no such
lists in the possession of O’Leary or any other manage-
ment person, as Roy had stated in the October 19 meet-
ing.9
6. That his comments to Chase were ‘‘found to be
malicious’’ in that he ‘‘maligned the integrity of Paul
O’Leary, expressly indicating that he had lied,’’ he
‘‘maligned the leadership role of Paul O’Leary’’ by at-
tributing to him the maintenance of a ‘‘hit’’ list, and he
maliciously caused Chase to be afraid for his job status.
7. That his responses to management during its in-
vestigation were not credible or consistent.
The October 29 letter also reiterated the Employer’s Can-
dor Rule, charged Giaimo with being ‘‘blatantly insubordi-
nate’’ in disregarding the direction to cease talking about a
hit list, and asserted that he had intended to make Chase feel
insecure about his job. It concluded that his employment was
terminated ‘‘for the following reasons:’’
1. Making false and malicious statements to a co-
worker in violation of Company policy.
2. Insubordinate failure to follow management in-
structions to stop spreading a rumor.
3. Failing to be accurate and truthful in response to
management questions during an investigation.
Each of these, the letter stated, was ‘‘sufficient grounds for
termination standing alone.’’
D. Analysis
The first question which must be answered here is whether
employee discussions of, or conjecture about, employer-
maintained lists of employees sympathetic to union organiza-
tion was either union or protected concerted activity such
that an employer would be precluded from forbidding such
discussions or disciplining employees for engaging in them.
As I am convinced that it was union activity, protected under
Section 7 and both 8(a)(3) and (1) without the necessity of
showing of that it was engaged in with or on the authority
of other employees, I need not discuss the question of pro-
tected concerted activity at any length.10 See generally NLRB
v. City Disposal Systems, 465 U.S. 822, 832–833 (1984).
It is noteworthy that Respondent’s own conduct gave rise
to the rumors. Whether for a lawful purpose or otherwise,
Respondent created and maintained a list reflecting the unit
employees’ suspected union sympathies during the relatively
recent Teamsters organizational drive. That list came to light
when a member of management revealed it to an employee
suspicious about a discipline he had received. Moreover, em-
ployee fears were heightened by publication of the ‘‘Trouble
8 Pack’’ list, another list which had been drafted by a super-
visor and permitted to fall into employee hands. The ‘‘Trou-
ble 8 Pack’’ list easily lent itself to a belief that prounion
employees were being singled out for discharge or other spe-
cial sanctions.
Experience over more than 50 years of NLRB history
demonstrates that employees who are or have been involved
in union organizational activities have reason to fear dis-
criminatory retaliation, at least from some employers. Their
discussions of those fears, or of real or perceived threats in
the nature of such lists as existed here, can only be seen as
a defense mechanism against such threats and/or, implicit
preparation for the next campaign.
In Cincinnati Suburban Press, 289 NLRB 966 (1988), an
employee was disciplined for writing and publishing an arti-
cle critical of the antiunion tactics of some members of man-
agement during an organizational campaign which the union
had lost within the past year. The Board concluded that the
writing and publication of that article was one aspect of con-
tinuing efforts to organize and was union activity protected
by Section 7 and 8(a)(3). In like measure, employee discus-
sion of ‘‘hit lists’’ which they believe were created based
upon their activities in an organization drive is a continuation
of that prior campaign or, at the least, an effort to avoid dis-
crimination based on their roles in that campaign. It is statu-
torily protected union activity.
As statutorily protected union activity, employee discus-
sion of what they believed to be employer-maintained, union-
activity related lists jeopardizing their continued employment
could not be prohibited absent legitimate and substantial
business justifications established by the employer. Jeannette
Corp., 217 NLRB 653 (1975), enfd. 532 F.2d 916 (3d Cir.
1976). Here, at the October 19 meeting, O’Leary directed
employees not to talk about hit lists among themselves.11
Other than to contend that the rumor was untrue, and that
it impeded managerial effectiveness and credibility, Respond-
ent offered no business justification.
Given employee knowledge of the prior maintenance of a
‘‘yes, no, maybe’’ list in the human resources department
and of the existence of the ‘‘Trouble 8-Pack’’ list, there was
at least a grain of truth in the ‘‘hit list’’ rumor. The existence
of such a list was certainly a matter of legitimate concern to
the employees. They were not required to accept managerial
assertions that such a list did not exist. Further, Respondent’s
concern for the effectiveness or credibility of its manage-
ment, while understandable, was irrelevant. That concern is
akin to a concern that employee discussions of controversial
1315SIMPLEX WIRE & CABLE CO.
12 243 NLRB 1123 (1978), enfd. 600 F.2d 132, 137 (8th Cir.
1979).
13 As the Board noted in Cincinnati Suburban Press at fn. 2:
[T]he Respondent may adopt rules in which the content of the
rules is necessary to the credibility of the institution and/or the
quality of its product, and the rules themselves are narrowly tai-
lored, unambiguous, and designate the category of employees to
whom the rules are applicable; provided, however, that such
rules do not improperly impinge on the relevant rights of the af-
fected employees. See Peerless Publications, 283 NLRB 334
(1987).
subjects will lead to jealousy and strife among the employ-
ees. As the Third Circuit stated in Jeannette Corp. v. NLRB,
supra at 919:
The possibility that ordinary speech and discussion
over wages on an employee’s own time may cause
‘‘jealousies and strife among employees’’ is not a jus-
tifiable business reason to inhibit the opportunity for an
employee to exercise section 7 rights.
Accordingly, I find that Respondent’s prohibition of dis-
cussions of the ‘‘hit list’’ rumor violated Section 8(a)(1).
I further find, in agreement with the General Counsel, that
Respondent’s Employee Candor rule and its Work Rule 23
unduly restrict employees in the exercise of their Section 7
rights by prohibiting statements which are merely false, as
distinguished from those which are maliciously so. While
both rules prohibit malicious statements as well as those
which were false, unfounded or defamatory, they do so in the
disjunctive; forbidden and subject to discipline are ‘‘false or
malicious statements’’ (Rule 23) and ‘‘unfounded, defama-
tory or malicious statements’’ (Employee Candor rule). The
latter rule goes even further, to prohibit employee statements
which are ‘‘less than totally honest.’’
In Cincinnati Suburban Press, supra, the Board considered
a work rule virtually identical to Work Rule 23 and similar
to the Employee Candor rule. In finding that rule unlawful,
it quoted from the Eighth Circuit’s decision, enforcing the
Board’s Order in American Cast Iron Pipe Co.12 as follows:
We agree with the Board that the major flaw in both
rules is that they proscribe ‘‘false’’ as well as ‘‘vicious
or malicious’’ statements.
. . . .
It is well established that, while employers may pro-
scribe ‘‘maliciously false’’ statements, employers may
not proscribe and punish for publication of false state-
ments. Texaco, Inc. v. NLRB, 462 F.2d 812, 815 (3d
Cir.), cert denied, 409 U.S. 1008, 93 S.Ct. 442, 34
L.Ed. 2d 302(1972); Owens-Corning Fiberglas Corp. v.
NLRB, 407 F.2d 1257 (4th Cir. 1969). Punishing em-
ployees for distributing merely ‘‘false’’ statements fails
to define the area of permissible conduct in a manner
clear to employees and thus causes employees to refrain
from engaging in protected activities.13
The more difficult question is whether Respondent’s dis-
charge of Giaimo violated Section 8(a)(3) and (1). On brief,
Respondent argues that its actions toward Giaimo were justi-
fied because management believed that he had been both dis-
honest and malicious in telling Chase that his name was on
a hit list.
Respondent’s brief did not attempt to support the other
stated reasons for Giaimo’s termination, his alleged ‘‘insub-
ordinate refusal to follow management instructions to stop
spreading a rumor’’ and ‘‘Failing to be accurate and truthful
in response to management questions during an investiga-
tion.’’ As to the first of these, it is clear that the order not
to discuss the hit list rumor was itself unlawful. Giaimo’s re-
fusal to comply with that unlawful order was not insubor-
dination upon which a sustainable discharge could be based.
AMC Air Conditioning Co., 232 NLRB 283, 284 (1977). To
the extent that the discharge of Giaimo was motivated by his
breach of that unlawful order, that discharge was unlawful.
Sunland Construction Co., 307 NLRB 1036 (1992).
The second of those reasons, Giaimo’s alleged untruthful-
ness when questioned by management, is simply
‘‘bootstrapping’’ or, as General Counsel refers to it, ‘‘a
makeweight.’’ It is premised upon the same facts which go
to the veracity of Giaimo’s statement to Chase, i.e., whether
McCallion told him of a conversation with Goodberry where-
in a list bearing Chase’s name was mentioned. For an em-
ployer to choose to believe one version of an incident over
another and then claim further justification for the discharge
in its credibility resolution, would be akin to a finding of
perjury on the basis of the trier of facts’ determination of
credibility. Moreover, acceptance of an employer’s claim that
its discrediting of an employee’s explanation was an inde-
pendent ground for discharge would insulate almost any dis-
charge from the Board’s remedial powers, no matter how
clear the discriminatory nature of the underlying grounds for
that discharge.
Moreover, Respondent’s conclusion that Giaimo lied in the
course of its investigation was not supported by the evidence
before it. Casavant was not a witness to anything, neither
Giaimo’s conversation with McCallion nor the conversations
with Chase. McCallion’s statement, like his testimony, indi-
cates a high level of animosity toward Giaimo. It further in-
dicates that Goodberry told employees about having seen a
list of employees whose jobs were in jeopardy. That is not
inconsistent with Giaimo’s statement to Chase that his name
was on a list, even if he called it a ‘‘hit list.’’ Similarly, the
statement management took from DeCourt establishes that,
following Goodberry’s termination, there was talk about a
‘‘hit list of people who were to be terminated,’’ which
Goodberry had seen in O’Leary’s office. It further establishes
that someone who had talked with Goodberry passed that in-
formation on to DeCourt and that DeCourt, like Giaimo,
passed it on to others. What DeCourt told Conley during this
investigation is substantially corroborative of what Giaimo
told him. The only difference is that DeCourt did not name
McCallion as the source of his information.
Here, as in Cincinnati Suburban Press, supra, the Em-
ployer argues that even if Giaimo’s activities were within the
ambit of Section 7, they lost the Act’s protection because
they exceeded the permissible bounds of protected activity.
In that case, at 967, the Board noted:
In NLRB v. Electrical Workers IBEW Local 1229 (Jef-
ferson Standard), 346 U.S. 464 (1953), the Supreme
Court held that employees may communicate with third
parties in circumstances where the communication is re-
lated to an ongoing labor dispute and where the com-
munication is not so disloyal, reckless, or maliciously
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
untrue as to lose the Act’s protection. See also Emarco,
Inc., 284 NLRB 832 (1987).
Respondent contends that Giaimo engaged in malicious
taunting of a mild-mannered coworker, Chase, and that his
malice removed his words from the Act’s protection. The
facts do not warrant such a conclusion. Giaimo was, perhaps
tactlessly, relating what I am satisfied he had been told about
a list of employees whose jobs were in jeopardy, a list which
had allegedly been seen in O’Leary’s office. That informa-
tion, which was consistent with the rumors that DeCourt said
were circulating since Goodberry’s discharge, was also con-
sistent with what Giaimo had been told by Pat Twist and
with what he knew of the ‘‘Trouble 8 Pack’’ list. Giaimo did
what McCallion, in his statement to the Employer, claims he
would have done with similar information, i.e., suggest to the
employee whose job was in jeopardy that he should watch
his step.
Moreover, the employee to whom his comments were di-
rected did not deem them to be either serious or malicious,
at least when the incident occurred. Chase did not credit
Giaimo’s remarks and told the Employer so. He was not so
upset that he intended to take any action with respect to
them. He reported what Giaimo said only after another em-
ployee essentially forced him to do so. While Chase, in the
course of his testimony, described Giaimo’s manner of relat-
ing the information as ‘‘speaking sort of like he knew a big
thing. Like ha, ha . . . I found out about a hit list. Your
name is on it,’’ he did not include any such description in
his statement to the Employer on October 19. Neither did he
testify that Giaimo used any such words.
Finally, the contention that Respondent’s disciplinary ac-
tion was motivated by what it perceived as a malicious attack
on Chase is belied by its actions and statements on October
19 and thereafter. When Conley first questioned Giaimo on
October 20, Giaimo was asked if he had told Chase ‘‘that
you did not believe what Paul [O’Leary] said and was told,
‘‘You are going to be suspended. An employee has come
forward that you have undermined a manager . . . . The
grounds of the suspension are that you made a statement to
a fellow employee on the credibility of a Manager’s author-
ity.’’ Similarly, on October 26, Conley questioned Giaimo,
asking him whether he had said that he did not believe what
O’Leary had said about not having a list. He was told that
there were two issues, ‘‘Making a false or malicious state-
ment about a manager’’ and ‘‘the conversation you had with
Pat Chase concerning his employment status.’’ There was no
reference to his allegedly malicious taunting of Chase.
Indeed, in its October 29 discharge letter, Respondent did
not allude to any malice supposedly directed at Chase. That
letter lists, as management’s conclusions as to what Giaimo
had done, that Giaimo had made false statements about
O’Leary’s possession of a hit list, that those statements were
in violation of directives that the hit list rumor not be dis-
cussed, and that they were ‘‘found to be malicious’’ not with
respect to Chase but because they ‘‘maligned the integrity of
Paul O’Leary, expressly indicating that he had lied.’’
Thus, it is clear that Respondent discharged Giaimo be-
cause he disregarded its unlawful order that employees not
engage in union or other protected concerted activity, i.e.,
discuss the hit list rumor, and because he questioned the ve-
racity or integrity of a manager in the course of his protected
activity. The tactless nature of Giaimo’s comments to Chase
was seized upon as a pretext to bring the discharge within
the language of those cases which hold that an employer may
punish employees for ‘‘maliciously false’’ statements but not
those which are merely false. See American Cast Iron Pipe
Co. v. NLRB, 600 F.2d 132, 137 (8th Cir. 1979), and cases
cited therein.
As noted above, the discharge of an employee for violat-
ing a rule which contravenes the statute is violative of Sec-
tion 8(a)(1) and (3). AMC Air Conditioning Co., 232 NLRB
283 (1977). And, as the Board made clear in Cincinnati Sub-
urban Press, supra at 968, an employee’s assertion, in the
course of union activity, that a supervisor had been less than
truthful in respect to his conduct of labor-management rela-
tions, does not rise to the level of misconduct which will for-
feit the Act’s protections. Therein, the employee had accused
the newspaper’s executive director of having ‘‘an insidious
disregard for the truth,’’ a much more direct accusation than
was ever attributed to Giaimo. The employer contended that
such language impugned its integrity and the truthfulness of
its newspapers. The Board held that inasmuch as the state-
ment related solely to a discussion of management’s opposi-
tion to the union and was made only in that context, it did
not disparage the director’s personal integrity or truthfulness
with respect to the employer’s product, the publication of a
newspaper. That statement did not go beyond permissible
bounds or forfeit the protection of Section 7. In like fashion,
whether Giaimo said that he believed that O’Leary had a list
or did not believe him when he said that he had no list, and
whether or not he referred to it as a hit list, his statement
was made in the context of a protected discussion and did
not impugn Respondent’s products or O’Leary’s integrity
outside of that context.
Accordingly, I find that Respondent discharged Timothy
Giaimo in violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By prohibiting employees from engaging in union or
other protected concerted activities, and by maintaining rules
which prohibit employees from making false or unfounded
statements, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging an employee because he engaged in
union or other protected concerted activity, the Respondent
has engaged in an unfair labor practice affecting commerce
within the meaning of Section 8(a)(3) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
1317SIMPLEX WIRE & CABLE CO.
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 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 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.’’
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 recommended14
ORDER
The Respondent, Simplex Wire and Cable Company,
Newington, New Hampshire, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from engaging in union or other
protected concerted activity.
(b) Distributing, maintaining in effect, or enforcing Work
Rule 23 and its Employee Candor Rule to the extent that
they prohibit employees from making false or unfounded
statements.
(c) Discharging or otherwise discriminating against any
employee for engaging in union or other protected concerted
activity or supporting Teamsters Local 633, International
Brotherhood of Teamsters, AFL–CIO or any other union.
(d) 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 Timothy Giaimo 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 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 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) 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 back pay due under the terms of this Order.
(d) Post at its facility in Newington, New Hampshire cop-
ies of the attached notice marked Appendix.15 Copies of the
notice, on forms provided by the Regional Director for Re-
gion One, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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, defaced, or covered by any other material.
(e) 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.
WE WILL NOT discharge or otherwise discriminate against
any of you for engaging in union or other protected con-
certed activity or for supporting Teamsters Local 633, Inter-
national Brotherhood of Teamsters, AFL–CIO or any other
union.
WE WILL NOT prohibit employees from engaging in union
or other protected concerted activity.
WE WILL NOT distribute, maintain in effect, or enforce
Work Rule 23 and the Employee Candor Rule to the extent
that they prohibit employees from making ‘‘false’’ state-
ments.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Timothy Giaimo 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.
WE WILL remove from our files any reference to the un-
lawful discharge and notify the employee in writing that this
has been done and that the discharge will not be used against
him in any way.
SIMPLEX WIRE AND CABLE COMPANY