The Acme-Arsena Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1291 (N.L.R.B. 1985)

ACME-ARSENA CO. 1291
The Acme-Arsena Co., Inc . and Construction Labor-
ers' Local ` Union No . 496, Laborers ' Interna-
tionalUnion of North America , AFL-CIO.
Case'-8-,CA-'16245 .
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
- DENNIS AND JOHANSEN
On -2 May 1982- Administrative Law Judge
Elbert D. Gadsden issued the attached supplemen-
tal decision. The Respondent filed exceptions and a
supporting brief, as did the General Counsel.
- The National Labor-Relations-Board has delegat-
ed its authority in 'this proceeding to a three-
member panel.
The Board has • considered' the 'decision and the
record in light of the exceptions and briefs and_has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended Order
as modified.3
i The Respondent has excepted to some of the judge 's credibility find-
ings 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
2 We agree with the judge's finding that Joseph Celli was engaged in
protected concerted activity'when he made complaints to the Respondent -
about work jurisdiction We further find that Celli's complaints about
safety- matters also constituted protected concerted activity Celli lodged
these complaints in his representative capacity as a union steward More-
over, Celli's safety complaints were attempts to enforce the collective-
bargaining agreement (introduced into evidence as G C. Exh 2), which
contained a safety provision (art V, sec 2) and, therefore , were protect-
ed by the Act under the rationale of NLRB v City Disposal System, 104
S Ct 1505`(1984)
We further agree with the judge 's conclusion that the Respondent
failed to demonstrate that it would have discharged Celli in the absence
of his repeated protected conduct Thus, even assuming , contrary to the
judge's findings , that Celli's threat to contact the Internal Revenue Serv-
ice (IRS) was not connected to his union activity, the Respondent failed
to show that it would have discharged him for that - threat alone The
record reveals that the IRS remark was made at the end of an argument
between Celli and Superintendent McQuown about putting more men on
a job This argument was one of a long series of disputes over work juris-
diction and safety matters between Celli, as union steward , and manage-
ment officials The judge found, and we agree, that in each of these dis-
putes Celli was engaged in protected concerted activity and that his dis-
courteous behavior or use of obscene language was not so egregious as to
remove him from the protection of the Act We also agree with the
judge's finding that there was no credible evidence supporting the Re-
spondent 's contention that Celli could not get along with his fellow
workers, ever refused to comply with an order, or was previously
warned or disciplined by the Respondent for insubordination or abusive
conduct In these circumstances , we conclude that even if the IRS state-
ment, contrary to the judge's analysis , were a causative factor in the dis-
charge, the Respondent has failed to show that it would have discharged
Celli for that statement had the ongoing disputes over safety and work
jurisdiction not occurred -
3 The judge failed_ to provide for the standard expunction remedy Ac-
cordingly, we shall modify the recommended Order so as to require the
Respondent to expunge from its files any reference to the discharge of
employee Joseph-Celli, and to notify him in writing that this has been
done and evidence of the unlawful discharge will not be used as a basis
ORDER -
The National Labor Relations Board adopts the
recommended Order of the administrative law -
judge as modified below and orders that the Re-
spondent, The Acme-Arsena Co., Inc., Cleveland,
Ohio, its officers, agents,', successors, and assigns,
shall take the action set forth in the Order as modi-
fied.. - - .
1. Insert the following, as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Remove from the company files any refer-
ence to the unlawful discharge of employee Joseph
Celli, and notify him in writing that this has been
done and that evidence of the . discharge' will not be
used as a basis for future personnel actions against
him."
2. Substitute the attached notice for that of the
administrative law judge.
for future personnel actions against him See Sterling Sugars, 261 NLRB
472 (1982):
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.
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their protected
rights by discriminatorily suspending or discharg-
ing them from our employ because they complain
to management, about safe .working conditions or
work jurisdiction in accordance with the contract.
WE. WILL NOT discriminatorily suspend or dis-
charge our employees because they complain to
management about safe working conditions or
work jurisdiction in accordance 'with the contract.
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 Joseph Celli immediate reinstate-
ment to his.former position or, if such position no
longer exists, to a substantially equivalent position
without prejudice to his seniority - or- other rights
previously enjoyed, and make him whole for any
loss of •pay suffered by reason of our discrimination
against him;-with interest.
WE WILL remove from our files any reference to
the unlawful discharge of employee Joseph Celli,
276 NLRB No. 144
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and notify him in writing that this has been done
and that evidence of" the unlawful discharge will
not be used as a basis for future- personnel actions
against him.
THE- ACME-ARSENA CO., INC.
Mark Neubecker, Esq., of Cleveland, Ohio, for the Gen-
eral Counsel.
Michael I. Greenwald, Esq. (Barragate & Barragate), of
Cleveland, Ohio, for the Respondent.
Lawrence M. Oberdank, Esq., of Cleveland, Ohio, for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN; Administrative Law Judge. On
November 29, 1984, the Board remanded the October 29,
1984 decision to me because, relying on cases deriving
from Alleluia Cushion, 221.NLRB 999 (1975), he con-
cluded that Joseph Celli's "drop a dime" remark consti-
tuted protected concerted activity, rather than union ac-
tivity relating to Celli's steward duties. "Drop a dime"
was explained during the • trial as a colloquial expression
to call the internal Revenue Service to investigate the
books of Respondent.
Consequently, - since the Board overruled Alleluia
Cushion and its"progeny in Meyers Industries, 268 NLRB
493 (1984), it concluded under the Meyers doctrine that
Celli's "drop a dime" threat to call the IRS is not pro-
tected activity.
In its "remand -Order the, Board further stated that be-
cause it is unclear from the judge's decision whether Re-
spondent would have discharged Celli for the unprotect-
ed "drop a dime" threat, standing alone, the Board de-
cided to remand the case to the judge to prepare a sup-
plemental decision based on the principles set forth in
Wright Line, 251 NLRB 1083 (1980).
In complying with the Board's remand Order, a
review of my-decision reveals that in the last paragraph
on page 12, I concluded that if Celli's discharge was mo-
tivated-by his "drop_a dime" threat, it may be reasonably
inferred from Celli's repeated complaints to management
about work jurisdiction, that the "drop. a dime" threat
related to laborers loss of wages occasioned by carpen-
ters performing laborers work. In other words, I was'
persuaded that Celli's "drop a dime" statement was ut-
tered out of frustration during his heated discussion with
Superintendent McQuown, about the recurrent problem
of work jurisdiction. Having so concluded, I nevertheless
inadvertently characterized Celli's 30 July complaint, ac-
companied-by the "drop a dime" threat, as being related
to preceptive loss of wages by laborers and, as such, suf-
ficiently related to legitimate concerns of "concerted,"
instead of "union" activity protected by the Act; and
again in the first paragraph, line 3, page 13, "concerted"
was repeated, instead of "union" activity protected by
the Act.
Inadvertently, the period following the word ".crafts"
on page 12, line 50, should be ' a comma , followed by
"an" instead of "An." These corrected inadvertent errors
now connote a meaning consistent with the previously
stated analysis, reasoning, and conclusions on page-12 of
my decision. That is, Celli's "drop a dime" statement was
uttered while he was engaged in the protected conduct
of legitimately complaining about work jurisdiction in
accordance with the terms of the contract, as further dis-
cussed below. -
More significantly, however, although Superintendent
Harry (Frosty) McQuown expressed-his concern to Busi-
ness Representative Conrad about Celli's "drop a dime"
statement , neither McQuown nor any other member of
management stated that Celli was laid off or discharged
for uttering the- threatening statement. Respondent did.
not speak with Celli about the "drop a dime" threat and, -
it did not contend at the trial that Celli was laid off. or
discharged for his threatening statement. On the con-,.
trary, Respondent's president Vito J. Arsena testified
without dispute that Respondent discharged Celli for
"insubordination, difficult personality or poor attitude af-
fecting employees morale and work relationship." Under
these circumstances, it is therefore clear that, standing
alone , Celli's statement was not a causative basis for his
layoff or discharge. Nor did I rely on Celli's statement,
standing alone , as a motive for his separation from Re-
spondent's employ. Pursuant to article VI, section 14,
and appendix A, section 14 of the collective-bargaining
agreement between Respondent and the Union, Celli ac-
tually had authority to police and enforce the work juris-
diction clause of the agreement. In doing so (complain-
ing about work jurisdiction and work safety), I find that
Celli was grieving within the framework of the agree-
ment and, as such, was engaging in conduct protected by -
the Act. NLRB v. City Disposal System, 104.S.Ct. 1505,
1510 (1984); Interboro Contractors, 157 NLRB 1295, 1298
(1966), enfd. 388 F.2d 495 (2d Cir. 1967).
A. Wright Line Analysis of Celli's Discharge
In further complying with the Board's remand Order,
an analysis and evaluation of the evidence of Celli's dis-
charge by Respondent, independent of his "drop a dime"
threat, is now undertaken upon the principles set forth in
Wright Line, 251 NLRB 1083 (1983).'
In Wright Line, the Board held that the` causation tests
in all cases alleging violation of Section 8(a)(3) -or Sec-
tion 8(a)(1) turning on employer motivation, the follow-
ing shall be established:
1. The General Counsel shall make a -prima facie
showing sufficient to support the inference that pro-
tected conduct was a "motivating factor" in the em-
ployer's discharge decision. -
2. Once the above has been established, the
burden shifts to the employer to demonstrate that
the same action would have taken place even in the
absence of the protected conduct. - -
Thus, in applying these tests to Respondent's discharge
of Union Steward Joseph Celli, it is uncontroverted that
Joseph Celli was union steward on the job at all times
material to the issues involved.
ACME-ARSENA CO.
A review of the credited evidence of record shows
that only a few weeks after Celli was appointed steward
in March 1982, he complained to carpenters' foreman
Calrusso about carpenters performing laborers work
(moving and stockpiling metal studs and coreboard), all
of which the laborers could have moved with the use of
the crane. Instead, the laborers were directed to carry
the materials up three or four stairs, into an intermediate
building, and downstairs, sometimes sustaining cuts. and
bruises on their person in the process. After some discus-
sion, Calrusso agreed with Celli that the work was labor-
ers' work and he directed carpenters' foreman Bodack to
allow the laborers to perform the remainder of the work
with the crane. In giving the radio to Celli for the labor-
ers to perform the work with the crane, Foreman
Bodack said if they (the laborers) don't work, "fire their
asses."
In April 1982, Celli complained about the safety of the
scaffolds occasioned by Respondent's use of substandard
planks (knotted one-half -inch by 10 inches, instead of 2
by 10 inches industrial-type work-planking). After an in-
spection by the State Division of Safety and Hygiene,
the inspector informed Celli that Respondent was not
going to use anymore substandard planking. However,
when Celli learned Respondent was still using substand-
ard planking he complained about it to Job Superintend-
ent McQuown. In this regard, Superintendent McQuown
undeniably testified that when Celli spoke to him about
the standard of the scaffold, he said "Jesus Christ, Joe,
what do you expect." Celli replied, "Take the fucking
thing down." I credit McQuown's testimony that Celli
made the latter statement . McQuown then said, "Rather
than call Mr. Warren [of the State Safety and Hygiene
Department], why don't you give me until this after-
noon . I will call the office and I will get back to you."
When McQuown did get back to Celli, the latter asked
him had he gotten in touch with his main office.
McQuown said, "Yes, I had and nothing would be
changed " Celli told McQuown he, was going to call In-
spector Warren, and he did so.
About 26 July, after being alerted by another steward,
Celli saw a group of carpenters taking down a scaffold
without laborers. He went to Foreman Bodack, told him
what he saw, and reminded him of his agreement with
Superintendent McQuown that laborers would be repre-
sented in any laborers work. Foreman Bodack said he
would take care of it. Two hours later, Bodack pulled
the carpenters off the job after the scaffold was practical-
ly dismantled. Celli told McQuown that he (McQuown)
was not adhering to his end of the agreement and that
they would just have to go back to the way it was.
Within a few days, Celli returned to the site where the
scaffold was dismantled and saw carpenters rigging the
material, signaling the crane, and flying the material
from one end of the building to the other, while. Laborer
Foreman Mike Calrusso and one carpenter were landing
the material and loading it on the truck -for removal.
Celli went to McQuown and told him that he was not
honoring their agreement; that the carpenters were doing
laborers work, and they have to return to the way it
was. McQuown just turned and walked away.
1293
McQuown, acknowledged that there was a great deal
of confusion about who was going to unload, the labor-
ers or the carpenters. He called Arsena and also Business
Representative Conrad. Conrad told him there was no
problem, the Company had been doing this since 1979,
and suggested that they continue to do so. Celli, howev-
er, continued to insist that the work was laborers work
and the Company had a composite crew. McQuown had
previously discussed the problem regarding who was to
unload material and Celli had,protested that the work
was laborers' work. McQuown said he called Conrad,
carpenters' foreman Bodack, carpenters' steward John
Plickert, and Davie Rittenhouse. After some discussion,
they all agreed that they had a carpenters' and laborers'
composite.
Celli said that he believed that the laborers had juris-
diction-over the work pursuant to section 14, page 27 of
the agreement (G.C. Exh. 2) which provides that:
"Drywall, cooling =tower materials, planking, shoring
scaffolding , framing materials, runways, concrete forms,
plywood not used for trim, shall' be unloaded to a stock-
pile, or stockpiled by laborers."
Celli further testified, without dispute, that on another
occasion, laborers' foreman Calrusso told him to call
Business Representative Conrad and he could use the
telephone in the trailer. Celli used the telephone to call
Conrad while. McQuown was present in the trailer.
Conrad told Celli the Company had complained about
him taking too long on his rounds and, to "watch his
back." Celli said he told Conrad he was not taking too
long on his rounds and that he reported to his foreman
(Ken Durham) before and after he went on his rounds.
McQuown overheard his conversation with Conrad be-
cause he was sitting right in the office within hearing dis-
tance and thereafter asked him "How could they resolve
the problem?" Celli said- he told McQuown- "If Acme-
Arsena would just let the laborers do their work in a safe
atmosphere, he didn't see any problem_': McQuown just
shook his head and said, "I don't see any problems whatso-
ever."
The uncontroverted testimony of Celli shows that a
steward is permitted to make rounds to fellow workers
twice a day to assure compliance and enforcement of the
contract. Subsequent to the State's jobsite inspection, Su-
perintendent McQuown on one- occasion, and Foreman
Bodack on 'another, told Celli to shorten the time he
spent making rounds, and Celli said, "Fine," and he did
in fact, shorten his rounds. A day or two later, the car-
penters foreman told him he could probably shorten his
rounds if he did not talk to so many stewards. Celli said
he told the. foreman he was just talking to the stewards
about things that were happening within the Union that
he should be aware of and he did shorten his rounds. He
stated undisputedly that he was never warned or other-
wise disciplined for talking too long while making his
rounds.
On another occasion -Celli told McQuown -about a
scaffold not being vacuumed and McQuown asked Celli
what did he say, and Celli replied, "Well, you got _ to
clean your goddam ears out." McQuown asked Celli
what, and walked away McQuown testified that the
1294 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
"clean your goddamn ears out" statement was made in
the presence of three or four employees, which he said
could cause other employees to•lose respect for the su-
perintendent. He acknowledged, .however, that he did
not discuss the matter-'with Celli but called Arsena, who
in turn called Business Representative Conrad to advise
him that Respondent,had a problem with Celli.. ' '
On another occasion Celli went to McQuown and dis-
cussed the job and they tried.:to resolve the jurisdictional
work conflict. During the conversation, Celli said the la-
borers would do their work and the carpenters would do
their work and McQuown replied,' "Fine, Joe. I'll go
along with ' everything: That's the way it should be."
McQuown testified-that on 'another occasion Celli-told
him to "go fuck himself," but he could'. not remember
further details about the incident.'
On two occasions Celli held discussions with
McQuown -regarding laborers being under the influence
of drugs ("dope") on the job. Although McQuown was
not able to' verify any particular' laborer involved, when
laborer Lenny Cervinic approached him and denied -he
was using drugs, McQuown told Lenny he accepted his
denial that he was under` the influence of drugs, because
it was not allowed on the job. •
Finally, 'about Friday; July 30, Celli approached
McQuown in the turbine building and said , "You got a
goddamn problem." When asked what was it,-Celli said,
"You got the. carpenters"out there. and laborers taking
the scoffold down and carpenters loading the trucks."
Again, complaining about work jurisdiction, Celli said
your foreman is going to join 496 'and McQuown said
"Well, I don't think he would, Joe." Celli said, "The hell
he won't: I'll see to it.. You can put that up -your ass and
,smoke it." McQuown said; that no other employee was
present and he, went immediately to Respondent's presi-
dent, Arsena, and demanded dismissal of Celli, ,that this
was number three,' that .Celli insisted on being insubordi-
nate , creating dissention' among the rest of the men, and
that he was letting Celli-go. -
McQuown' voluntarily testified that the-laborers did
not like Celli and -did not -want to work with him, but
they never told him: directly, he simply heard that from
i Although I credit essentially . the substance of all the relatively con-
sistent testimony of Steward Joseph Celli, Stipenntendent' McQuown,
Company President Vito Arsena, and Union Business Manager Floyd
Conrad, to the extent that it establishes that theie ' was an ongoing Juris-
dictional work dispute and recurring safety issues concerning the use of
pyrocrete, scaffolds, and ,employees using drugs (as discussed below), all
of which ' Steward Celli complained about "to management , I do not nec-
essanly credit the conflicting dates, times, and sequence in which the wit-
nesses stated each of the incidents occurred , except that they all'occurred
sometime between February . and 30 July 1982 Thus, although Supenn-
tendent McQuown said . thar he could not recall the details of the occa-
sion on which
-,
Celli told him to "go fuck himself," I find that the "mci-
-dent occurred on the same occasion that Celli complained about the car-
penters doing laborers' work The record clearly shows that Celli used
profane and obscene language :dunng conversations with management
(Superintendent McQuown ) on several occasions.. However, although the
presentation of testimony in this proceeding left something to be desired
with respect to comprehensive clarity and chronology the testimony is
sufficiently clear to show, and I find, that-whenever Celli used such pro-
fane and obscene ,' language,, he was engaged in discussions with
McQuown involving complaints about jurisdictional work , or on a few
occasions about work safety ' The testimony does not show that' Celli
used such language on any ' `occasion independent of complaints about
work jurisdiction or work safety.
John Bodack. I discredit the uncorroborated, self-serving
hearsay statement by McQuown, whom the record
shows had numerous altercations with Celli regarding
complaints by Celli about work jurisdiction, and work
safety. Moreover, I was persuaded by McQuown's de-
meanor on the stand that he was- exaggerating or not tell-
ing the truth about laborers not wanting to work with
Celli, because -Celli reported their use of marijuana on
the job. - - -
B. Analysis and Conclusions
It is unequivocally clear. from the above uncontrovert-
ed and credited evidence, that even if Steward Celli had
.not complained at all about work, safety, as in fact he
had, the majority number of his complaints related, to
work jurisdiction. It is obvious from the number of
Celli's complaints about work jurisdiction, the contract
provision about the work, 'and management 's acknowl-
edgement of the fact that the work about which Celli
complained .was laborers work, as well -as Celli's insist-
ence on compliance with the contract and the frequent
altercations which his complaints provoked with man-
agement (McQuown and Bodack), that Celli was zealous
in carrying out his steward duties of "policing and en-
forcing the contract." As such, he was engaged in union
activity protected by the "Act. NLRB `v. ' City Disposal
System, supra Interboro Contractors, supra. -
It is therefore clear that counsel, for the General Coun-
sel has. established the first requisite of the Wright Line
test: a prima facie showing sufficient to, support an infer-
ence that Celli's protected conduct was a motivating
cause for his discharge by the Respondent. The General
Counsel having satisfied that requirement, the burden
shifts to Respondent to demonstrate that it would have
discharged Celli even in the absence of his protected
union conduct.
The record shows that although witnesses for Re-
spondent testified about Celli having frequent temper
tantrums, and not being liked by his fellow workers, they
neither described the nature . nor the details of such
temper tantrums unassociated with Celli's 'complaints
about work jurisdiction and work safety. Except for the
incident in which Celli complained about an employee
smoking . marijuana on the job, about which the accused
laborer, and probably some of his fellow workers did not
appreciate, the record contains little specific testimony
by management witnesses about fellow employees not
liking and objecting to working with him. No employees
,were called And testified about such objections. I was
persuaded by -the demeanor, of McQuown and Conrad
that they, were not telling the truth in this regard. Be-
cause Respondent's evidence on this, contention lacks
detail , specificity, and consist of all statements f find ,man-
agement under the circumstances in this case, Ifind that
although-Celli might not have been the most affable and
congenial person to work with, I nevertheless find that
Respondent's characterization of him as being almost im-
possible to work with, is -exaggerated.. This conclusion is
supported by the fact that prior 'to-becoming steward
and shortly thereafter, Celli's relationship with fellow
employees and management was uneventful. Although
ACME-ARSENA CO 1295
Celli might have manifested authoritative demeanor after
he became steward on the job, the evidence is uncontro-
verted that he was zealous in carrying out his duties of
policing the contract with respect to work jurisdiction
and work safety.
It is particularly noted, however, that on each occa-
sion when Celli told Superintendent McQuown' either to
"Take the fucking thing down," "go fuck yourself," "up
your ass," "Well, you got to clean your goddamn ears
out," or "You can put that up your ass and smoke it,"
Celli was engaged in an altercation with management
(McQuown or Bodack) in reference to complaints about
work jurisdiction or work safety. Union Business Manag-
er Conrad had initially testified that Foreman Bodack
would tell him that Celli would "raise hell" and throw a
temper tantrum in complaining about jurisdictional work
and safety issues. Conrad further stated that these tan-
trums or fits on some occasions would be related, to
work, sometimes partly related to personality; and some-
times related to safety. He was not able to- specify when
the incident was related to personality or whether or not
Celli was complaining about work jurisdiction or work
safety. He acknowledged that on the day Celli was dis-
charged, he had talked to Celli and McQuown earlier
and both said that everything was going all right.
Conrad also testified that after Celli made his safety.
and work complaints to him, Celli had no further respon-
sibility in the matter unless there was immediate threat to
life-or limb. Although this may be-true with respect to
taking further union action, such as formally processing
grievances at different levels, filing charges with the
Board or other agencies, or negotiating contract changes,
it has not been shown how such line of authority can
preclude Steward Celli from repeatedly complaining to
management about legitimate matters affecting work ju-
risdiction or work safety (exercising Sec. 7 rights). After
all, Celli was a steward and working employee-laborer
himself. His complaints to management were made on
behalf of himself and his fellow laborer employees.
It is unequivocally established by the evidence that all
of the'described altercations Celli had with management,
including those in which he uttered profane or obscene
language, in or out the presence of fellow employees, oc-
curred while Celli was complaining about work jurisdic-
tion or work safety on behalf of laborers, and that such
altercations with management were protected. In this
regard,-the Board has repeatedly held that-profane and
foul language, or what is normally considered discourte-
ous conduct while engaged in protected activity, does
not justify disciplining an employee acting in a represent-
ative capacity. Max Factor_ & Co., 239 NLRB 804, 818
(1978); Postal Service, 250 NLRB 4 (1980); Kay Fries,
Inc., 265 NLRB 1077 (1982). Having been engaged in
protected activity by complaining about and protesting
work jurisdiction and work safety of laborer employees,
Steward Celli's profane, obscene, and foul language, as
well as any discourteous conduct on his part were pro-
tected by the Act.
The courts and the Board have also held that concert-
ed activity for the objectives set forth in Section 7 of the
Act can be unprotected if it is unlawful, violent, and in
breach of contract, on indefensible because it demon-
strates a lack of loyalty to the employer and may be
deemed unnecessary to carry out the workers legitimate
concerted activities. NLRB v. Washington Aluminum Co.,
370 U.S. 9, 17 (1962). However, the evidence in the in-
stant case fails to demonstrate that Celli, at any time, en-
gaged in unlawful and violent conduct in breach of con-
tract, or in conduct which demonstrates a lack of loyalty
to Respondent. In the absence of such evidence, I con-
clude and find that' Celli's use of profane or obscene lan-
guage while complaining about work jurisdiction and
work : safety did • not • amount to egregious conduct ex-
ceeding the ' bounds of protected activity under the Act.
Although McQuown testified laborers - did not like
Celli and did-;not want to. woik _ with him, he stated in
the same breath that the.laborers never told him that di-
rectly, he simply heard that-from Foreman Bodack, who
,did not testify in this proceeding. President Arsena's tes-
timouy in.this regard is consistent with McQuown's. He
did not witness any of the incidents but only, relied on
the reports of McQuown and Bodack; to whom Celli
was repeatedly complaining and with whom Celli had
frequent altercations primarily about work jurisdiction or
work safety. Business Representative Conrad acknowl-
edged that he received calls from • McQuown and Presi-
dent Arsena about Celli causing trouble on the job and
having temper tantrums- but he (Conrad) was never
present during the incidents. He would go to the jobsite
and talk with McQuown and Celli; It is particularly
noted however, that Conrad's conferences with
McQuown and Celli always related to altercations be-
tween them about Celli's complaints about work jurisdic-
tion or work safety, or about Celli's conduct while com-
plaining . The record fails to show an incident that was
not so related. - '
Additionally, as I observed Conrad testify, I was per-
suaded that he was testifying on behalf of Respondent
because, although Celli's complaints represented an effort
on his part to compel Respondent's compliance with the
contract, Celli's complaints were causing Conrad to fre-
quently receive calls from Respondent which required
him to make several, trips to the jobsite. It is therefore
obvious from the frequent altercations between Celli and
McQuown that Celli was quite an annoyance to Re-
spondent by constantly compelling Respondent to
comply with safety standards and the work jurisdiction
clause of the contract. -
Most noteworthy of Respondent's contention is the ab-
sence of any warning to Ce11i by management about the
problems it now contends he caused on the job with
fellow workers.It may be reasonably inferred'from such
inaction that Respondent did not ever warn Celli about
'his conduct because he was always legitimately com-
plaining about work jurisdiction or work 'safety (the
planks used by Respondent on scaffolds and' other crafts
performing laborers work). Such complaints were pro-
tected by the Act and Respondent in all probability was
aware of that fact. Thus, in the absence of a poor work
record , warnings given to Celli prior, to his discharge,
and credited-and corroborated testimony about the trou-
bles he caused on the job, Respondent, or any employer
for that matter, may appear of the trial after' the' fact
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(after.the discharge of the employee), and with testimony
primarily from members of management, portray the em-
ployee as an incompetent' or troublesome employee. Re-
spondent's evidence is of the latter character because the
record does not show that any member of management
ever warned or otherwise disciplined Celli prior to its
precipitous discharge of him on' 30 July, subsequent to a
heated argument between Superintendent McQuown acid
Celli about carpenters undeniably performing laborers
work. Nor does the record contain any evidence which
indicated Respondent was contemplating - suspending or
discharging Celli "prior to his discharge. Jefferson Electric
Co., 274 NLRB 750 (1985).
Consequently, notwithstanding Respondent's conten-
tion that it would have discharged Celli for cause ( insub-
ordination, difficult personality, or poor attitude affecting
employees morale and. work relationship),. the, evidence
fails to show that Celli ever refused to comply with an
order, or that he was ever previously warned or disci-
plined by Respondent about the reasons -Respondent now
contends was. the basis for .his discharge. Nor• is Re-
spondent's assertion that Celli was so temperamental and
authoritative until he could not get along with fellow
workers credibly substantiated. At,most, I find all of its
assertions merely a grossly-exaggerated pretext advanced
by Respondent to conceal its real and unlawful motive
(Celli's complaints about work jurisdiction and work
-safety) for discharging him. I therefore conclude that Re-
spondent has not demonstrated under the Wright Line
standard that it would have discharged Celli from its
employ in the absence of Celli's repeated protected con-
duct. Jefferson. Electric Co., 274 NLRB- 750 (1985). Ac-
cordingly, by discharging Celli, I find- that- Respondent
violated Section 8(a)(1) and (3) of the Act.
V. THE REMEDY "
Having found that Respondent has engaged in unfair
-labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, we. shall order that it cease and desist
therefrom and take certain affirmative action necessary
to effectuate the policies of the Act.
It having 'been found that Respondent interfered with,
restrained, and coerced its employees in the exercise of
-their Section 7 rights, in violation of Section 8(a)(1) and
(3) of the Act, and discriminatorily discharged an em-
ployee union steward because he repeatedly complained
about matters of work safety and work jurisdiction,- the
recommended Order will provide that Respondent cease
and desist .from engaging in such unlawful conduct, and
that it make dischargee Joseph Celli whole for any loss
of earnings he may have suffered "within the meaning and
in accord with-the Board's. decision in- F W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977),2 except as .specifically modified by
the wording of such recommended Order.
_ Because of the character of the unfair- labor practices,
the recommended Order will provide that Respondent
cease and desist from or in any like or related manner
-interfering with, restraining, and coercing employees in
the exercise of their rights guaranteed by Section '7 of
the Act. NLRB v Entwistle Mfg. Co., 120 F.2d 532, 536
(4th Cir . 1941). -
CONCLUSIONS OF LAW -
1. Respondent The Acme-Arsena Company, Inc. is,
and has been at all times material, an employer engaged
in commerce.within the meaning of Section 2(6) and (7)
of the Act. • ,
2. Construction Laborers' Local Union No. 496, La-
borers' International Union of North America, AFL-
CIO' is, and has been • at all times material herein, a labor
organization" within, the meaning of Section 2(5) of the
Act.
3.• By discriminatorily suspending and' discharging an
employee union steward because he...repeatedly com-
plained ,to management about woik- safety, and work ju-
risdiction in acccordance with the contract, Respondent
has interfered with; restrained, and coerced its employees
in the exercise of -their Section 7 rights, in violation of
Section 8(a)(1) of the Act.
4. By discriminatorily suspending and discharging an
employee union steward because' he repeatedly com-
plained to management about work safety and work ju-
risdiction in accordance with the contract, the Respond-
ent has discriminated against its employees, in violation
of Section 8(a)(3) of the Act.
5. The conduct described in paragraphs 3 and 4,
above, - are' unfair labor practices "affecting . commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, -I issue the" following recommend-
ed3 .
ORDER
The Respondent, Acme-Arsena Company, Inc., Cleve-
land, Ohio; its officers, agents, successors, and assigns,
shall - ' - -
1. Cease and desist from
(a) Interfering with, restraining, or coercing employees
in the exercise-of their guaranteed Section 7 rights, by
suspending and discharging employees 'because they
complain to management about matters relating to work
safety or work jurisdiction in accordance with the con-
tract. -
(b) Discriminatorily suspending and discharging em-
ployees because they complain to management. about
matters of work safety or work jurisdiction in accord-
ance with the contract.
(c) In any like or related manner . interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act.
(a) Offer to Joseph Celli immediate and full reinstate-
ment to his former position or, if such position no longer
a 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 objections to them shall- be deemed waived for all pur-
2 See generally Isis Plumbing & Heating Co, 138 NLRB 716 (1962) poses -
ACME-ARSENA CO. 1297
exists, to a substantially equivalent position without prej-
udice to his seniority or other rights previously enjoyed,
and make him whole for any loss of pay suffered by
reason of the discrimination against him, with interest, in
the manner described in the remedy section of this deci-
sion.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at Respondent's office and place of business in
Cleveland, Ohio, copies of the attached notice marked
"Appendix."4 Copies of the notice, on forms provided
by the Regional Director for Region 8, 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 conspic-
uous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 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 "