Spartan Plastics

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 546 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spartan Plastics, Inc. and Tim E. Kasel and Oil,
Chemical and Atomic Workers International
Union. Case 7-CA-21183
28 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 3 August 1983 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Respondent filed exceptions and a supporting
brief,' and the General Counsel filed cross-excep-
tions, a brief in support of the cross-exceptions, and
an answering brief.
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, 2 and
conclusions3 and to adopt the recommended Order
as modified.
I The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 Both the Respondent and the General Counsel have excepted to
some of the judge's credibility findings. The Board's established policy is
not to overrule an administrative law judge's credibility resolutions unless
the clear preponderance of all the relevant 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 reversing the findings.
The Respondent argues that counsel for the General Counsel unethical-
ly obtained a sworn statement from one of the Respondent's managers
without prior notification to the Respondent's counsel, and that the same
counsel prosecuted the case at the hearing before the judge. It also al-
leges that the judge improperly allowed the General Counsel to excise a
portion of a witness' affidavit involving issues not connected with the al-
leged violations, without affording the Respondent's counsel an opportu-
nity to examine the contents of the affidavit. Further, it argues that the
judge improperly permitted the General Counsel to use a witness' affida-
vit to refresh his recollection. Pursuant to Sec. 102.118(b)(2) of the
Board's Rules and Regulations we have carefully examined the affidavit
from which portions were excised and are satisfied that the judge's ruling
was correct. Making available to a declarant his own material in order to
refresh his recollection is a permissible practice under the Federal Rules
of Evidence. Thus there was nothing improper in the judge's ruling in
this regard. The General Counsel argues persuasively that counsel did
obtain permission from the Respondent to take affidavits from manage-
ment officials and that the matter was not raised at the hearing. More-
over, there has been no showing that this action legally prejudiced the
Respondent or that the integrity of the proceeding was compromised.
Further, the fact that the same person performed the roles of investigator
and trial attorney is inconsequential in this proceeding. Thus the Re-
spondent's averment in this regard is without merit.
3 Because we agree with the judge's finding that fellow employees
"conferred and collaborated" with Kasel "in preparing the typewritten, if
not all of the questions presented" to the Respondent during the compa-
ny-sponsored meeting, we find it unnecessary to rely on the judge's alter-
native rationale that, even if Kasel had acted alone, his activity was con-
certed because the questionnaire related to concerns shared by the other
employees. Nor do we rely on the judge's citation of Diagnostic Center
Hospital Corp. of Texas, 228 NLRB 1215 (1977), in fn. 3 of his decision,
because that case has been overruled by our recent decision in Meyers
Industries, 268 NLRB 493 (1984).
As we stated in Meyers Industries at 497:
269 NLRB No. 98
1. The judge, relying on T.R.W. Bearings, 257
NLRB 442 (1981), found that by maintaining a rule
that prohibited the distribution of literature during
"working time" the Respondent violated Section
8(a)(1) of the Act. However, TR. W Bearings was
recently overruled by our decision in Our Way,
Inc., 268 NLRB 394 (1983). We shall therefore re-
verse the judge's finding that by maintaining the
rule the Respondent per se violated the Act. Ac-
cordingly we dismiss the allegation of the com-
plaint.4
2. We agree with the judge that the interrogation
of several employees interfered with their Section 7
rights in violation of Section 8(a)(1) of the Act.
However, the judge applied the wrong standard in
reaching his conclusion. Johnnie's Poultry Co., 146
NLRB 770 (1964), relied on by the judge, sets
forth the standard under which an employer may
question employees in order to investigate issues
raised in an unfair labor practice complaint and
prepare for a hearing. The proper test in the instant
case is whether, under the circumstances, the inter-
rogation reasonably tended to restrain or interfere
with the employees' exercise of the rights guaran-
teed them under the Act. Florida Ambulance Serv-
ice, 255 NLRB 286 fn. 1 (1981). Accordingly we
conclude that the Respondent's interrogation of
employees concerning the authorship of the ques-
tionnaire restrained and interfered with their Sec-
tion 7 rights in violation of Section 8(a)(1) of the
Act.
3. Finally, the complaint alleges that about 20
August 1982 the Respondent violated Section
8(a)(l) of the Act by suspending its employee
Kasel and thereafter discharging him. The judge
Once the activity is found to be concerted, an 8(aXI) violation will
be found if, in addition, the employer knew of the concerted nature
of the employee's activity, the concerted activity was protected by
the Act, and the adverse employment action at issue (e.g., discharge)
was motivated by the employee's protected concerted activity.
2 3
23 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(Ist Cir. 1981), cert. denied 455 U.S. approved in NLRB v. Transpor-
ration Management Corp., 113 LRRM 2857, 97 LC ¶ 10,164 (1983).
Under this standard, an employee "may be discharged by the em-
ployer for a good reason, a poor reason, or no reason at all, so long
as the terms of the statute are not violated, "NLRB v. Condenser
Corp. of America, 128 F.2d 67, 75 (3d Cir. 1942). Thus, absent special
circumstances like NLRB v. Burnup & Sims, 379 U.S. 21 (1964),
there is no violation if an employer, even mistakenly, imposes disci-
pline in the good-faith belief that an employee engaged in miscon-
duct.
By distributing a written response to the questionnaire among all the em-
ployees the Respondent demonstrated that it perceived that Kasel's
action was concerted. Cf. Ajax Paving Industries, 261 NLRB 695 (1982),
enfd. 713 F.2d 1214 (1983).
' The judge found that on occasions unauthorized distribution in the
Respondent's plant had been tolerated. However, the amendment to the
complaint made during the hearing to add the unlawful distribution rule
allegation did not include "unlawful enforcement" of the rule as an unfair
labor practice. Accordingly, because there is no allegation that the rule
was discriminatorily applied by the Respondent, we shall not pass on the
issue.
546
SPARTAN PLASTICS
found that by discharging Kasel because of his pro-
tected concerted activity the Respondent commit-
ted an unfair labor practice. However, he did not
make findings regarding the employee's prior sus-
pension. Because we agree with the judge that the
Respondent's actions in discharging Kasel were un-
lawful and because the underlying facts leading to
the suspension are the same that led to the employ-
ee's discharge several days later, we also find that
by suspending Kasel because of his engagement in
protected concerted activity the Respondent violat-
ed Section 8(a)(1) of the Act. We shall modify the
judge's recommended Order accordingly.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Spartan Plastics, Inc., Holt, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified and
set out in full.
1. Cease and desist from
(a) Discharging, suspending, or otherwise dis-
criminating against employees in regard to hire or
tenure of employment, or any term or condition of
employment because they protest against changes
in working conditions.
(b) Interrogating employees under circumstances
when such interrogation reasonably tends to re-
strain or interfere with the employees' exercise of
the rights guaranteed them under the Act.
(c) Distributing, maintaining in effect, or enforc-
ing Plant Rule 23 involving the making or publish-
ing of "false" statements.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Tim E. Kasel immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole
for any loss of earnings and other benefits suffered
as a result of the discrimination against him by pay-
ment to him of the amount he normally would
have earned from the date of his suspension until
the date of the Respondent's offer of reinstatement,
less net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977).
(b) Remove from its files any reference to the
unlawful suspension and discharge of Tim E.
Kasel, on 20 August and 27 August 1982 respec-
tively, and notify him in writing that this has been
done and that the unlawful suspension and dis-
charge will not be used against him in any way.
See Sterling Sufars, 261 NLRB 472 (1982).
(c) Withdraw and abolish its Plant Rule 23 in-
volving the making or publishing of "false" state-
ments.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its facility at Holt, Michigan, copies
of the attached notice .marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, 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.
5 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge, suspend, or otherwise
discriminate against employees in regard to hire or
tenure of employment because they protest against
changes in working conditions.
WE WILL NOT interrogate our employees under
circumstances when such interrogation reasonably
tends to restrain or interfere with the employees'
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL NOT distribute, maintain in effect, or
enforce Plant Rule 23 involving the making or
publishing of "false" statements.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Tim. E. Kasel 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 resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL notify Tim E. Kasel that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
WE WILL withdraw and abolish Plant Rule 23.
SPARTAN PLASTICS, INC.
DECISION
WALTER J. ALPRIN, Administrative Law Judge. The
complaint in this case was issued on October 22, 1982,'
and was amended at the hearing. The issues here are
whether the Employer maintained unlawful work rules
and interrogated employees, and unlawfully discharged
an employee in violation of Section 8(a)(l) and (3) of the
Act. The case was heard by me at Lansing, Michigan, on
March 9, 1983.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering briefs
filed by the General Counsel and by counsel for Re-
spondent on May 16, 1983, I make the following
FINDINGS OF FACT
Spartan Plastics, Inc. (the Respondent) is a corporation
organized in the State of Michigan, manufacturing, sell-
ing, and distributing self-adhesive decorative trim prod-
ucts from its sole office at Holt, Michigan. Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and that the Oil, Chemical and Atomic Workers
All dates are in 1982 unless otherwise stated.
International Union (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
Respondent maintains plant rules, the violation of
which may lead to discipline or discharge, which prohib-
it the following:
Rule 18. Unauthorized distribution of literature,
written, or printed matter of any description during
working time or in working areas.
Rule 23. The making or publishing of false, vicious,
or malicious statements concerning any employee,
supervisor, the Company, or its products.
There have been instances in the past of unauthorized
distribution of literature or printed matter during work-
ing time and/or in working areas with no discipline im-
posed or employees discharged.
Respondent maintains relations with its 86 manufactur-
ing employees through a plant employees' committee,
not a labor organization within the meaning of the Act.
Several times each year the management, in conjunction
with the committee, calls a "mass meeting" for all em-
ployees, held at company facilities during nonworktimes,
with attendance being voluntary. Oral questions are ac-
cepted from employees at these meetings, but written
questions never were submitted.
Tim Kasel, the Charging Party, was employed by Re-
spondent in 1978 and operated a rotary die-cutting ma-
chine. He holds a Bachelor of Arts degree in industrial
relations and labor. On May 1, 1981, he contacted the
Union in an attempt to organize Respondent. A meeting
was held at his home and authorization cards distributed,
but there was no further organizational campaign.
Kasel's participation in the attempt was known to Re-
spondent.
In the summer of 1982 there were rumors in the plant
that Respondent was going to do away with paid sick
leave and paid personal leave, and that a mass meeting
would address these issues. Respondent did in fact have
these matters under consideration, with a target imple-
mentation date of January 1, 1983, but had not planned a
meeting. Kasel began discussing these issues with other
employees, and preparing questions which he and other
employees agreed should be submitted in writing to Re-
spondent's president at the mass meeting. Kasel wrote
and had typed some questions and kept about 20 photo-
copies in his car.
On August 12, Respondent and the committee agreed
that there should be a mass meeting the following day,
after working hours, at 3:30 p.m., to discuss general eco-
nomic matters, not to consider sick or personal leave.
Committee members were as usual to advise the employ-
ees in their respective divisions. Kasel testified that he
learned of the meeting only on the morning of August
13, and immediately after work that afternoon went to
his car, got the photocopied questions, and in conference
with other employees added additional handwritten ques-
tions. He then proceeded to the meeting, where he gave
a photocopy of typed and handwritten questions to
Troyle Anderson, Respondent's comptroller, with a re-
548
SPARTAN PLASTICS
quest that they be handed to Charles Kraus, Respond-
ent's president.
Some of Kasel's testimony in this regard is contradict-
ed by his fellow worker, Gary Brewer, who testified that
Kasel showed him a copy of all the typed and handwrit-
ten questions at 10 o'clock on the morning of August 13.
I believe Brewer's testimony, since Kasel's version of
adding handwritten questions at the last minute prior to
the meeting does not account for his having given a pho-
tocopy of all typed and handwritten questions to Ander-
son for Kraus, immediately after having finished the
handwritten portion that afternoon.
The questions were handed to Kraus with the advice
not to attempt an oral answer, but Kraus began an at-
tempted extempore reply. He shortly stopped, however,
and announced that a written response would be forth-
coming, and such a response, dated September 1, in fact
was distributed. The questions, with the responses fol-
lowing each, were as follows:
Please Answer/comment
Read Aloud
Higher Standard of Living???
1. The average retired couple in the U.S. needs
S15,000/yr, to live.
S18,900 in Boston. The highest paid machine opera-
tor at S. P. makes $3,200/yr. more than the $15,000
(please comment).
(Response: Boston is a long way from Holt,
Michigan, and has absolutely nothing to do with
our area, but food for thought is our highest paid
machine operator in 1981 was $26,679.00.)
2. The poverty level for a family of four in the U.S.
is $12,000/yr. (Mefford).
(Response: The poverty level, I have read, is as
low as $6,000 up to $14,000 per year depending
on where you live. Besides, what are we to do
about the poverty level in the U.S.?)
3. The steel industry in the U.S. has the highest
wages and benefit packages ($25/hr.). Management
at S. P. has claimed in the past to pay over $20/hr.
in wages and benefits to factory personnel. Is this a
fact?
(Response: True, the steel industry is approxi-
mately S23 per hour. It is in a shambles; highest
unemployment in 50 years; McClough Steel in
bankruptcy; many other companies are on the
fringe of bankruptcy. As to $20 an hour, we
don't know where that came from. We have
averaged $12-16 an hour for the last two years-
never even heard of $20 per hour.)
4. The average wage per hour for factory work, ac-
cording to the Wall Street Journal, is $8.55/hr.
What's S. P.'s average?
(Response: Average wage per hour at Spartan
Plastics is $7.60. Maintenance/machine operators
are as high as $9.50 with Utility Person at $6.40.)
5. Management has claimed our wages and benefits
for factory personnel are second to none. How do
they compare to Avery International Tape Divi-
sion, 3M Tape Division, and Ford Motor Company
Parts and Service Division?
(Response: Management has never claimed our
wages and benefits to be second to none. That
would be a foolish statement. We feel that we
pay well compared to other small businesses in
the area. As for comparison to $800 million to $3
billion per year companies, it would be rather
hard to compare. But, the surprising thing is that
Spartan Plastics does have wage scales which are
very close and benefits better than those large
companies. Naturally, you are always going to
find some differences.)
6. "You're lucky to have a job" is a common cliche
used by management. The fact of the matter is that
the majority of factory personnel at S. P. hired in
when another job most likely could have been se-
cured. These people hired in on the premise and as-
sumption that wages would keep up with inflation
(as long as the company was profitable, and it is, or
it wouldn't be in business) and benefits would keep
getting better as the workers worked harder or less
hard through technical improvement, managerial
improvements are questionable at best. Every year
it seems S. P. takes away something earned by the
wage earners or policy becomes absolutely more
dictorial (sic)(please comment).
(Response: We are fortunate to be working-
PERIOD. It would be interesting to poll our
people as to promises that lured them away from
taking another job. We would challenge anyone
on that. We don't promise anything. No one has
a crystal ball to predict the future. As for bene-
fits-simply look at the record. Each year we
take away something is a ridiculous statement.
This is the first time in 22 years we have asked
for anything back from our employees.)
7. Management has said inflation is dwindling, or
our buying power is more. Please comment on the
following analysis for a four year span: [Figures
omitted.] Just to keep up with inflation, a wage
earner making $14,000 four years ago needs $20,500
today.
(Response: Since 1979, wages and benefits have
increased 57% at Spartan Plastics. I don't feel I
have to elaborate more on that.)
8. Why does the single family wage earner at S. P.
have to count on overtime just to secure the basic
necessities (nothing extra)?
549
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Response: When a person makes $20-25,000 per
year and they have trouble with basic necessities,
I guess you have to look within your own budget
as to what basic necessities are. I am sure that
there are people making $50,000 and more that
also have trouble with basic necessities.)
9. Every year, it's the same sing-song from manage-
ment. "We're holding our own, the market is soft"
or "pop costs too much." But S. P. just keeps on
hiring, expanding, etc. (e.g. temporary help is hired
and stays all year, or, a person is laid off on a
Friday and called back to work on Monday.)
(Response: We have never pled poverty-wages,
bonuses, fringes prove that out. We have only
added 3 or 4 people to our full time labor force
in 2 years. As for expansion, you better hope we
keep expanding because it means job security if
we can keep our markets growing. Temporary
help averages 3-4 months and the author/authors
have a better recollection of a person being laid
off on Friday and called back on Monday than
we have. When did it happen?)
10. What has S.P. grossed in the last ten years?
(Response: Gross profit has nothing to do with
profitability. What is important is net-after ev-
erything is taken out. Our net last year was an all
time low of 1.7%. Example: What is your gross
pay before taxes, food, shelter, etc., etc.? What is
left after that and you have the same thing in
business.)
11. We (factory workers) work so we can have
decent benefits and the personnel who administer
those benefits recall them (e.g. week's vacation after
15 years-gone; paid sick/personal time-gone). We
earned that time because you had to be at work for
a month before you earned six hours, so it really
wasn't a benefit, right?
(Response: PPH days have always been consid-
ered a benefit no matter how you look at it.)
12. Traditionally, it is common practice for very
profitable companies to jump on the concessionary
bandwagon in depressed economic times even
though profit and productivity curves continue to
rise steadily. Isn't this what has happened at S.P.?
(Response: If we were highly profitable, why do
we owe the bank over $400,000 and are still
taking 45-90 days to pay our bills? The
author/authors have information that we are not
aware of. Sure wish they would not keep it a
secret.)
12. [Sic] Dunn & Bradstreet.
(Response: Dunn & Bradstreet. Okay, we have
heard of them.)
13. Michigan Annual Reports indicates S. P. is very,
very healthy. What's it take for management to
admit things have never been better, financially
speaking?
(Response: Again, the author/authors have infor-
mation that we are not aware of. Sure wish they
would not keep it a secret.)
Handwritten 1. What are the factory workers who
have involuntary medical disorders to do, when
they have to miss days for treatment. Are they sup-
posed to live on a four, three or two-day paycheck.
Seems Spartan is trying to foster a new breed of
Super, Sickless Shoprats, master shoprat, if you
will. Its been tried before.
(Response: The writer makes this sound like ev-
eryone is off 2-3 days per week all year around
which is simply not true. Vacation time can still
be used when an employee misses a day. As to
the last part, I think it is an insult to everyone
that works at Spartan Plastics.)
Handwritten 2. You say everyone must tighten their
belt. Well, its pretty easy to tighten a few notches
when you're (sic) income $25,000, $30,000, $50,000
plus. $18,200 kind of makes that belt tight to begin
with.
(Response: We have no control over people's
standard of living. We can only pay wages which
are reasonable and offer a standard of living
which will be comparable with everyone in the
area. If a person gears their standard of living to
champagne and expensive things, it is completely
up to them. Spartan Plastics has only so much to
give and so much to offer and still remain in busi-
ness.)
Handwritten 3. Why is it that in 1982 a contempo-
rary factory must manage its labor force with 1930,
1940, 1950, 1960's managerial techniques and poli-
cies.
(Response: I am wondering where the
author/authors drew this from and what experi-
ence they can claim to make the statements as to
old fashioned management techniques. They must
have a lot of vast experience and knowledge that
they are hiding from us.)
Handwritten 4. Do you think Spartan will last as
long as Diamond Reo.
(Response: Diamond Reo was a fine company in
its time and they lasted for 70 years. We certainly
hope that we last as long.)
The last handwritten question obviously is a reference
to Don Clemens, Respondent's plant manager, previously
employed by Diamond Reo which had gone into bank-
ruptcy.
550
SPARTAN PLASTICS
The letter responding to the questions began with the
following comments:
As you all know, I have been asked to answer a
questionnaire given to me at the end of the August
13 employee meeting. In the 23 years we have been
in business, I have never been presented with such a
crude/rude request at any meeting we have ever
had.
Plant Manager Clemens also considered the questions
malicious and inflammatory, and sought to determine
their author. He learned from Anderson that it was
Kasel who presented them, and on August 16 got an
opinion from Kasel's supervisor that the handwriting on
the questions appeared to be Kasel's. Clemens called
Kasel into his office and, asked whether he had "au-
thored" the questions. 2 Kasel denied having done so.
Clemens also called in the other employees of Kasel's di-
vision and asked them three questions-whether they
wrote the questions, whether they had input into the
questions, and who had written the questions.
On August 20, Clemens again called Kasel to his office
and asked whether he had authored the questions. Cle-
mens had retained a handwriting expert to study the
handwritten questions, but had not as yet received his
report. Kasel again denied authorship, but Clemens sus-
pended him. Clemens testified he took this action not be-
cause of the form of the questions, but because he be-
lieved Kasel had twice lied to him about his part in pre-
paring them. However, Clemens' sworn statement to a
Board field employee had been that he "decided to sus-
pend Kasel because I thought the letter was very inflam-
matory and very derogatory. . ." I believe the latter to
be the true basis of the suspension. Clemens was out of
town until August 26, and upon his return found the ex-
pert's report identifying the handwriting as that of Kasel.
On August 27 Clemens phoned intending to ask him to
come to the plant for a discussion regarding the suspen-
sion, but was unable to reach him. Clemens physically
went to Kasel's home and asked him to come to the
plant for the discussion, but Kasel was babysitting and
unable to do so. Later that day Clemens phoned again,
to ask Kasel whether another time could be arranged for
him to come to the plant. Kasel told him that any ar-
rangements would have to be made through his attorney.
Clemens gave up the idea of an interview, and prepared
and sent Kasel a letter discharging him for "Dishonesty;
unprovoked insolence; disrespect on your part toward
your employer; conduct contrary to the faithful and dili-
* Kasel insists that Clemens used the verb "authored," which Clemens
denies. Employees Snider and Pierce were asked who "wrote" and not
who "authored" the questions. Respondent Controller Anderson gave an
affidavit to a Board field employee reporting that employees were asked
who had "authored" the questions, and employee McCaleb recalled that
"author" was used. The word "author" might be considered to empha-
size originality, but, as later discussed, authorship of the questions, in that
sense, has no bearing on whether the preparation was a concerted action.
It might also be considered in determining whether Kasel had lied to Cle-
mens, but since, as also later discussed, the interrogation being improper
there was no obligation for an employee to respond truthfully. Therefore,
it is not here pertinent whether Clemens used the word "wrote" or "au-
thored," but I find the weight of the evidence to be that he used the
latter.
gent performance of your employer's business; conduct
which was demoralizing to your fellow employees which
also obstructed your employer's business." None of the
other employees interviewed, or who had entered into
discussions with Respondent's president at the meeting
regarding the proposed loss of sick or personal leave,
was disciplined, suspended, or discharged.
DISCUSSION
A. Unlawful Discharge
Respondent's position is that it suspended the Charg-
ing Party because he lied when questioned regarding his
authorship or participation in preparing the written ques-
tions presented at the meeting, and discharged him both
for lying and because he had in fact prepared malicious
questions. The first issue is thus whether preparation of
the questions was a concerted action and, if so, whether
it was protected by the Act.
Respondent argues that Kasel, alone, desired and pro-
voked a confrontation by originating, preparing, and pre-
senting the questions. This is contrary to the uncontested
testimony of fellow employees that they conferred and
collaborated with Kasel in preparing the typewritten, if
not all, of the questions presented. Further, even had
Kasel been acting alone, the questions at least in part re-
lated to wages and fringe benefits affecting not only
Kasel but responding to the concerns and inuring to the
benefit of numerous employees.3
Though Kasel's actions thus were concerted, they may
have lost the protection of the Act. It has been ruled
that "flagrant conduct of an employee, even though oc-
curring in the course of section 7 activity, may justify
disciplinary action by the employer.... The employ-
ee's right to engage in concerted activity may permit
some leeway for impulsive behavior, which must be bal-
anced against the employer's right to maintain order and
respect." 4 The issue is whether the activity "is sufficient-
ly egregious to remove [the employee's] activities from
any protection they might have otherwise enjoyed.""
The truth or falsity of the statements made, or whether
the employer finds the statements to be embarrassing, is
not material to the issue of whether they have lost the
protection of the Act, unless the employee's statement
constitutes disparagement or vilification deliberately in-
tended to impugn the employer's operations." Opprobri-
ous conduct may forfeit the protection of the Act, and
"[t]he decision as to whether the employee has crossed
that line [and lost such protection] depends on several
factors: (1) the place of the discussion; (2) the subject
I Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); Diagnostic Center Hospital
Corp. of Texas, 228 NLRB 1215, 1217 (1977), that "Birdwell's conduct
was concerted and protected irrespective of whether she was overtly des-
ignated by other employees to act on their behalf or informed any em-
ployee that she was doing so .... Birdwell's fellow employees shared
her concern and interest in the subject matter of the letter and, conse-
quently, (it is clear) that Birdwell was acting concertedly on behalf of her
fellow employees."
4 NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965),
enfg. 148 NLRB 1379 (1964); American Telephone & Telegraph Ca v.
NLRB, 521 F.2d 1159 (2d Cir. 1975).
5 Fibracam Corp., 259 NLRB 161 (1981).
5 Tyler Business Services, 256 NLRB 567, 568 (1981).
551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter of the discussion; (3) the nature of the employee's
outburst; and (4) whether the outburst was, in any way,
provoked by an employer's unfair labor practice."7
The first, second, and eighth typewritten questions
imply that Respondent pays workers less than the
amount required to sustain a retired couple, and not
much more than the poverty level for a family of four.
The 5, 7, 9, 12 (first), and 13 typewritten questions imply
that Respondent is making false statements to its employ-
ees. These comments are disparaging and insulting but
not so insolent as to be grossly disrespectful. The first
handwritten question implies that Respondent is deliber-
ately fostering subhuman working conditions, and the
third and fourth handwritten questions are personally in-
sulting to Respondent's management in general and its
plant manager in particular. I find that these questions,
while intentionally disparaging, were presented for the
purpose and with the effect of arguing against a change
in the sick and personal leave policies of Respondent,
and not for the purpose or with the effect of impugning
Respondent and its operations. The concerted activity
did not lose the protection of the Act.
The next issue is whether Kasel's discharge was based
on the protected activity. Respondent has at various
points claimed that the discharge was for lying in re-
sponse to interrogation, and for promulgating malicious
statements. Neither defense is valid. As is hereinafter
found, the interrogations were themselves violations of
Section 8(a)(1) of the Act. The employee is obviously
under no obligation to respond to unlawful coercion in
any particular manner. It can be no defense to Respond-
ent to recite a wrong by Kasel in responding to an action
of Respondent which itself constituted a violation of law.
As for the defense that the discharge was for promulgat-
ing malicious statements, I have above found that the
questions were not so malicious as to have lost the pro-
tection of the Act. Kasel's discharge was therefore based
solely on his protected concerted activity protesting
changes in working conditions, and was in violation of
the Act.
B. Interrogations
A number of the questions presented related directly
to wages and benefits, legitimate areas of concerted em-
ployee concern protected by the Act. These questions,
not being egregious, did not lose such protection, but
Respondent, in interrogating Kasel and the other em-
ployees' did nothing to discriminate between legitimate
inquiries on the one hand, and improper inquiries on the
other.
In Johnnie's Poultry8 the Board held that an employer
may interrogate employees on matters concerning their
Section 7 rights for the purpose of either verifying a
union's claim of majority status or . . . to prepare a de-
fense for use in an unfair labor practice trial. In balanc-
ing this employer privilege against the "inherent danger"
to employees of coercion, the Board requires that:
Arlantic Steel Co., 245 NLRB 814, 816 (1979).
e Johnnie's Poultry Co., 146 NLRB 770 (1964).
[T]he employer must communicate to the employee
the purpose of the questioning, assure him that no
reprisal will take place, and obtain his participation
on a voluntary basis .... " [W. W. Grainger, Inc.,
255 NLRB 1106 (1981)].
In the matter at hand the interrogation was not for a
proper purpose, and the employees were given none of
the required assurances. The interrogation of Kasel and
of the other employees was therefore an improper inter-
ference with, or restraint or coercion, of employees en-
gaging in concerted activity, and constituted a violation
of Section 8(a)(1) of the Act.
C. Unauthorized Distribution Rule
The General Counsel alleges that the rule against un-
authorized distribution of cited material during working
time or in working areas is invalid on its face as overly
broad. The Board held that nonsolicitation rules refer-
ring to either "non-working time" or "non-working
hours" are overly broad and presumptively invalid in
that they are ambiguous regarding an employee's right to
engage in protected concerted activity "during periods
of the workday when they are properly not engaged in
their work tasks (e.g., meal and break periods)." T.R. W
Bearings, 257 NLRB 442, 443 (1981). Maintaining the
rule is therefore a violation of Section 8(a)(1) of the Act.
D. Malicious Statements Rule
The General Counsel also alleges that the rule against
making or publishing false, vicious, or malicious state-
ments concerning any employee, supervisor, the Compa-
ny, or its products, is per se in violation of the Act.
Again, the Board has indeed held invalid rules which
punish statements which are "merely false" and that
"false and inaccurate employee statements are protected
so long as they are not malicious." American Cast Iron
Pipe Co., 234 NLRB 1126, 1131 (1978), affd. 600 F.2d
132 (8th Cir. 1979). The rule is therefore in violation of
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By discharging Tim E. Kasel because of his protect-
ed concerted activity protesting changes in working con-
ditions, Respondent has engaged in an unfair labor prac-
tice within the meaning of Section 8(a)(1) of the Act.
3. By interrogating employees on matters concerning
their Section 7 rights other than for the purpose of veri-
fying a union's claim of majority status or to prepare a
defense for use in an unfair labor practice trial, and by
failing to communicate to the employees the purpose of
the questioning, failing to assure the employees that no
reprisals would take place, and failing to obtain the par-
ticipation of the employees on a voluntary basis, Re-
spondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section
7 of the Act, and engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
552
SPARTAN PLASTICS
4. By maintaining a rule prohibiting distribution by its
employees of unauthorized literature, written or printed
matter during working time, Respondent has engaged in
and is engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act.
5. By maintaining a rule prohibiting the making or
publishing of statements concerning any employee, su-
pervisor, the Respondent, or its products which are
merely false and not vicious or malicious, Respondent
has engaged in and is engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom, and to take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully dis-
charged Tim E. Kasel I shall recommend that Respond-
ent be ordered to offer him 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 seniority or other rights and privileges. I shall further
recommend that Respondent be ordered to make him
whole for any loss of earnings he may have suffered as a
result of the discrimination against him by payment to
him of the amount he normally would have earned from
the date of his termination until the date of Respondent's
offer of reinstatement, less net earnings, to which shall be
added interest to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), and Flori-
da Steel Corp., 231 NLRB 651 (19 77 ).
9
[Recommended Order omitted from publication.]
* See also Isis Plumbing Co., 138 NLRB 716 (1962).
553