The Beitcher Manufacturing Corp.

National Labor Relations Board - Board Decisions

Mar 3, 1948

76 N.L.R.B. 526 (N.L.R.B. 1948)

In the Matter of THE BE ITCHER MANUFACTURING CORPORATION and
JAMES SA VOCA (AN INDIVIDUAL)
Case No. 8-C-1976.-Decided March 3,1618
Mr. John Hull, Jr., for the Board.
Messrs. Fred J. Perkins and Calvin If. Arter, of Cleveland,. Ohio,
for the respondent.
Mr. James Saroca, in person, the charging party.
DECISION
AND
ORDER
On December 19, 1946. Trial Examiner Isadore Greenberg issued
his Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief of the respondent, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
We agree with the Trial Examiner's finding that the respondent's
discharge of employee Savoca, because of the remarks made by him at
the April 5, 1946, bargaining meeting, was unlawful.
Collective bargaining between an employer and his employees is
plainly a form of employee activity protected by Section 7 of the Act.
Usually negotiations take place between an employer and the repre-
sentative or representatives of his employees. In the present case,
1 Those provisions of Section 8 (1) and (3) of the National Labor Relations Act, which
the Trial Examiner herein found were violated, are continued in Section 8 (a) (1) and
8 (a) (3) of the Act as amended by the Labor Management Relations Act, 1947.
76 N. L. R. B., No. 83.
526
THE BETTCHER MANUFACTURING CORPORATION 527
it was the respondent who elected to appear before, and to conduct his
bargaining negotiations with, his employees en masse.2
The process of collective bargaining takes on many aspects of
ordinary trading 3 The stakes are high. Negotiation is designed to set
up the framework for a long-run employer-employee relationship.4
A frank, and not always complimentary, exchange of views must be
expected and permitted the negotiators if collective bargaining is to
be natural rather than stilted. The negotiators must be free not only
to put forth demands and counterdemands, but also to debate and
challenge the statements of one another without censorship, even if,
in the course of debate, the veracity of one of the participants occasion-
ally is brought into question. If an employer were free to discharge
an individual employee because he resented a statement made by that
employee during a bargaining conference, either one of two undesirable
results would follow : collective bargaining would cease to be between
equals (an employee having no parallel method of retaliation), or
employees would hestitate ever to participate personally in bargaining
negotiations, leaving such matters entirely to their representatives.
We do not hold, of course, that an employee may never be lawfully
discharged because of what he says or does in the course of a bargaining
conference. A line exists beyond which an employee may not with
impunity go, but that line must be drawn "between cases where em-
ployees engaged in concerted activities exceed the bounds of lawful
conduct in `a moment of animal exuberance' (Milk Wagon Drivers
Union v. Meadowmnoor Dairies, Inc., 312 U. S. 287, 293) or in a manner
not activated by improper motives, and those flagrant cases in which
the misconduct is so violent or of such serious character as to render the
employee unfit for further service." 5 We find that Savoca's conduct,
however regrettable, falls into the former rather than the latter
category, and was not so extreme as to furnish justification for his
discharge for engaging in concerted activities.
Accordingly, we find, as did the Trial Examiner, that by discharging
James Savoca on April 12, 1946, and by thereafter failing to reinstate
him, the respondent discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in The Grievance
2 In view of the open nature of the meeting , it is immaterial whether, in answering
Arter's contention , Savoca was carrying out the mandate of the majority of the employees,
as found by the Trial Examiner , or was merely expressing his own views.
The events in the tavern were merely a continuation of the session in the plant , and not-
as the dissent suggests-a separate episode
3 Hill and Hook , Management at the Bargaining Table ( 1945 ), p. 255; Leonard J. Smith,
Collective Bargaining ( 1946 ), p. 12.
4 Alexander R. Heron, "Collective Bargaining in Action : An Employer 's View," Bureau
of National Affairs Inc , Collective Bargaining Negotiations and Contracts, 10 • 101.
5 N L. R. B. v. Illinois Tool Works , 153 F. ( 2d) 811 , 815 (C . C. A. 7).
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Committee of The Bettcher Manufacturing Corporation, in violation
of Section 8 (3) of the Act, and interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, in violation of Section 8 (1) of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, The Bettcher
Manufacturing Corporation, Cleveland, Ohio, and its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(it) Discouraging membership in The Grievance Committee of
The Bettcher Manufacturing Corporation, or in any other labor organ-
ization of its employees, by discharging any of its employees, or in
any other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of their employment, because
of statements appropriately made in the course of bargaining
negotiations ;
(b) Engaging in any like or related acts or conduct interfering
with, restraining, or coercing its employees in the exercise of the right
to self-organization, to form labor organizations, to join or assist The
Grievance Committee of The Bettcher Manufacturing Corporation,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer James Savoca immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges;
(b) Make whole James Savoca for any loss of pay he may have
suffered because of his discriminatory discharge, by payment to him
of a sum of money equal to the amount which he normally would have
earned as wages during the period from April 12, 1946, the date of
his discharge, to the date of the respondent's offer of reinstatement,
less his net earnings, if any, during the same period;
(c) Post at its plant in Cleveland, Ohio, copies of the notice attached
hereto and marked "Appendix A." 6 Copies of such notice, to be
in the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall he inserted before the words "A Decision and Order," the words "A Decree of the
United States Circuit Court of Appeals Enforcing."
THE BETTCHER MANUFACTURING CORPORATION 529
furnished by the Regional Director for the Eighth Region, shall, after
being duly signed by an authorized representative of the respondent,
be posted by the respondent unmediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondent
to insure that said notice is not altered, defaced, or covered by any
other material;
(d) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
MEMBER GRAY, dissenting in part:
I am of the opinion that the complaint should be dismissed. I base
my decision solely on the events which occurred at the tavern after
the collective bargaining meeting had adjourned. In my view, the
collective bargaining meeting at the Union hall was a closed meeting at
which Savoca's remarks are entitled to protection as part of the give
and take of the collective bargaining process. I take a different view,
however, of the tavern incident, which was open to the public and
occurred in a public place. Here, Savoca did not have the protection
of a closed union meeting or bargaining conference and therefore took
the risk of being disciplined for his unwarranted remarks to President
Arter 1 No individual citizen or any organization of which he is a
member should be exempt from responsibility for harmful, public ac-
tions or statements, such as were made in this case. The stature of
those accepting such responsibilities will increase.
Inasmuch as Savoca's conduct at the tavern was concededly a princi-
pal motivating cause for his discharge, I conclude that his discharge
for that reason did not violate the Act, and that consequently the
complaint should be dismissed.
APPENDIX A
NOTlci: TO ALL EMPLOYERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
i Cf. my dissenting opinion in Matter of Atlantic Towing Company/ ( 10-C-1869). 75
N L R B. 1169
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in TILE GRIEVANCE COiI-
MITTEE OF TIIE BETTCIIER MANUFACTURING CORPORATION, or in any
other labor organization of our employees, by discharging any of
our employees, or in any other manner discriminating in regard to
their hire or tenure of employment, or any term or condition of
their employment, because of statements appropriately made in
the course of bargaining negotiations.
WE WILL NOT engage in any like or related acts or conduct in-
terfering with, restraining, or coercing our employees in the exer-
cise of their right to self-organization, to form labor organizations,
to join or assist THE GRIEVANCE COMMITTEE OF TIIE BETTCHER
MANUFACTURING CORPORATION, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.
WE WILL OFFER James Savoca immediate and full reinstatement
to his former or a substantially equivalent position without preju-
dice to any seniority or other rights and privileges previously en-
joyed, and make him whole for any loss of pay suffered as a result
of the discrimination practiced against him.
TIIE BETTCIIER MANUFACTURING CORPORATION,
Employer.
Dated ------------------------ By --------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. John Hull, Jr., for the Board
Messrs. Fred J. Perkins and Calvin K. At ter, both of Cleveland, Ohio, for the
respondent.
Mr. James Savoca, in person, the charging party.
STATEMENT OF THE CASE
Upon a charge filed May 15, 1946, by James Savoca, an individual, the Na-
tional Labor Relations Board, herein called the Board, by its Regional Director
for the Eighth Region (Cleveland, Ohio), issued its complaint dated September
30, 1946, against The Bettcher Manufacturing Corporation, herein called the
respondent, alleging that the respondent had engaged in, and was engaging in,
unfair labor practices affecting commerce within the meaning of Section 8 (1)
and (3), and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat 449, herein called the Act. Copies of the complaint and notice of hearing
thereon were duly served upon the respondent and the charging party.
With respect to the unfair labor practices, the complaint alleged in sub-
stance: (1) that the respondent, on or about April 12, 1946, discharged James
Savoca, and since that date has refused to reinstate him, because he engaged in
THE BETTCHER MANUFACTURING CORPORATION 531
concerted activities with other employees of the respondent, and because of his
membership in, and activity on behalf of a labor organization of the respondent's
employees known as The Grievance Committee of The Bettcher Manufacturing
Corporation, thereby engaging in unfair labor practices within the meaning of
Section 8 (1) and (3) of the Act; and (2 ) that since March 1, 1946, the respond-
ent had engaged in a continuous course of conduct which has interfered with,
restrained , and coerced its employees in the exercise of their rights as guaranteed
in Section 7 of the Act, thereby engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act.
On October 11, 1946, the respondent filed its answer in which it denied that
it had engaged in any unfair labor practices, and affirmatively averred that it
had discharged the said Tames Savoca for "legal and justifiable causes."
Pursuant to notice, a hearing was held at Cleveland, Ohio, on October 28, 1946,
before the undersigned , the Trial Examiner duly designated by the Chief Trial
Examiner . The Board and the respondent were represented by counsel ; the
charging party appeared in person Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues, was
afforded all parties.
At the conclusion of the hearing, the undersigned, without objection, granted a
motion of counsel for the respondent to dismiss the complaint insofar as it alleged
that the respondent had since March 1, 1946, engaged in a plan and continuous
course of conduct which has interfered with, restrained, and coerced its employees
in the exercise of their rights as guaranteed in Section 7 of the Act. The under-
signed, without objection, also granted a motion made by Board counsel, to
amend the complaint to conform to the proof in such formal matters as dates,
spelling, and the like
At the conclusion of the Board's case, counsel for the respondent moved to
clismiss the complaint in its entirety This motion was denied Upon renewal
of the same motion by respondent's counsel at the conclusion of the hearing, the
undersigned reserved ruling That motion is disposed of by the recommenda-
tions hereinafter made.
At the conclusion of the hearing the undersigned heard oral argument by coun-
sel for the respondent and the Board Although opportunity to file briefs and/or
proposed findings of fact and conclusions of law was afforded the parties, no such
briefs or proposed findings and conclusions were received
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I., THE BUSINESS OF THE RESPONDENT
The respondent, The Bettcher Manufacturing Corporation, is an Ohio corpora-
tion with its plant and principal offices located in Cleveland, Ohio The respond-
ent is engaged in the manufacture of job stampings.
During the 12-month period prior to the hearing, the respondent produced
finished products of a value in excess of $750,000, of which in excess of 70 percent
was shipped to points outside the State of Ohio. The principal raw material
used by the respondent in its operations is sheet metal. During the same period
it used such raw material of a value in excess of $350,000, of which in excess of
50 percent was received by it from points outside the State of Ohio.
The respondent concedes that it is engaged in commerce within the meaning of
the Act.
781902-48-vol. 76-35
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE ORGANIZATION INVOLVED
The Grievance Committee of The Bettcher Manufacturing Corporation is a
labor organization admitting to membership employees of the respondent at its
plant in Cleveland, Ohio.
IlI. THE UNFAIR LABOR PRACTICES ; THE DISCHARGE OF d.01ES S-\VOCA
A The factual settilig
The respondent employs approximately 75 pioductiou workers in its plant.
During March 1946, in order to further their demand for a wage increase, the
employees organized The Grievance Committee of The Bettcher Manufacturing
Corporation, hereinal ter referred to as the Grievance Coninuttee,' through which
they requested the respondent to giant them an upward adjustment in their
wages. The initial negotiations for an increase were carried on between Calvin
K. Arter, the respondent's president and treasurer, and the coininittee of four
employees, hereuibefore described, which had been selected to represent the
employees Arter informed the committee that the respondent was operating at
a loss and therefore could not afford to grant as large a wage increase as the
employees were demanding The upshot of these negotiations was an offer by
Arter of a flat increase of 7 cents per hour The committee informed Arter that
it was "going to be pietty hard to convince [the employees] that the Company"
was losing money, and invited him to attend the next meeting of the employees
as a whole to "explain to the boys the situation " This invitation was accepted.
The employees held their meetings in it hall over a tavern The next meeting,
which Arter was invited to attend, was held on April 5, 1946, in the said hall.
That night At-ter came to the tavern and waited theca to be called into the
meeting. In the meantime, the committee reported to the approximately 35
employees in attendance on Arter's offer of a 7-cent per hour wage increase The
evidence is undisputed, and the undersigned finds, that many of the employees
had been drinking, and weie boisterous and disorderly to such an extent that
the chairman at times lost control of the proceedings. Understandably, the tes-
timony is in conflict as to exactly what action was taken on the conunittee's re-
port Board witness Savoca testified that the respondent's offer was turned down
"bv acclamation" and that the employees decided by vote to "accept nothing
less than [a] 15 cents I increase] " Respondent's witness Byndas, who was chair-
man of the meeting, testified that lie "asked [the employees] to vote on whether
they would be willing to accept the seven-cent raise and the majority of their said
no " The secretary of the meeting, Hess, testified that no formal vote on the
question was taken, but that the men were divided about half and half as to
whether or not to accept the respondent's offer. The only other witness as to this
matter testified vaguely that "one says this much and one says that much" and
that "some says 15, some says we ought to get as much as the rest of them, 181/2,
and so forth." On the basis of the foregoing, the undersigned is persuaded, and
therefore finds, that whether or not a torinal vote was taken, a nlajoiity of the
employees present at the April 5 meeting indicated, after hearing the committee's
report, and before Arter entered the meeting, that they were opposed to accept-
'The term "Grievance Committee" seems to have been used rather loosely by the em-
ployees to describe both the organization as a whole, consisting of all the respondent's em-
ployees, -s\ho met monthly as a body, and the committee of four which was selected by the
employees to act as a grievance committee for them.
THE BETTCHER MANUFACTURING CORPORATION 533
ance of the respondent's offer of a 7-cent per hour wage increase When this
became evident, the members of the committee summoned Arter into the meeting
to explain the respondent's position Arter was given the floor and he placed
before the employees the respondent's contention that it was losing money and
could not afford to increase wages by more than the 7 cents he had offered.
Following Arter's presentation of the respondent's position, a general dis-
cussion ensued. with employees expressing their opinions, and asking questions,
and Arter answering on behalf of the respondent 2 Atter about 15 minutes of
such discussion, Savoca, the eniploiee alleged in the complaint to have been
discrimiinatorily discharged, was given the floor. He took issue with the re-
spondent's refusal to grant more than a 7-cent wage increase, and disputed Arter's
contention that the respondent wits operating ,it a loss. Although the testimony
is somewhat in conflict as to Savoca s exact language, the undersigned is con-
vinced from the record as a whole, and therefore finds, that during his remarks,
which were interrupted by dissenting shouts from some other employees, Savoca
stated in substance that he did not believe that the respondent was losing money
as Alter asserted, because Arter was in the habit of taking expensive vacation
trips; and that no employee, including himself, wished to work for a company
which was losing money. When Arter offered to prove that the respondent was
losing money by producing the Company's books,' Savoca retorted that
he had had experience as a bookkeeper, and that books could be juggled to show
a loss.
Following the discussion, the employees voted to accept the respondent's offer,
and the meeting adjourned. After the meeting, Arter, together with two other
men, was sitting in a booth in the tavern below the meeting hall, in which, after
a few moments, he was joined by Savoca' The testimony of both Arter and
Savoca is in agreement, and the undersigned finds, that Arter began a conversa-
tion between them by berating Savoca for the tatter's remarks during the meet-
ing. Thereupon Savoca repeated in substance what he had said at the meeting,
namely that he had had bookkeeping expel ience, that books could be manipulated
to show a loss, and that if the respondent was actually losing money, he (Savoca)
(lid not care to work for it i A week later, on April 12, 1946, Savoca was Sum-
moned to Arter's office in the respondent's plant, where Alter discharged him,
giving as the reason for the discharge the fact that Savoca had insulted him
by in effect calling hire a "crook and a liar."
2 From Arter's testimony it is clear, and the undersigned finds, that even after lie came
into the meeting, the loud and disorderly conduct which had characteiized the earlier
part of the meeting, continued n g, there was noisy "cat calling and joking." etc
"This offer was couched in profane language, in which, accoiding to the testimony, all
those present were indulging
The undersigned does not consider it necessary to resolve the conflict between the
testimony of Savoca and that of Arter as to whether Savoca was invited by Arter to join
this group, on whether he sat down at the table without an invitation As is hereinabove
found, in any event, the testimony is undisputed that Arter initiated the ensuing discussion
The above finding is based on Arter's testimony Savoca testified that lie disputed a
statement Arter had made that the General Jlotors Corporation was losing money, and that
with regard to the respondent's books, he merely said that Arter "should bring the books
into the meeting so everyone could look at the books." From the record as a whole, the
under signed is convinced that during their conversation in the tavern, following the meet-
ing, Savoca and Artei in effect ieaffinied their respective statements made during the
meeting, and therefore is persuaded that Arter s version of this conversation is the niore
accurate.
6 AI: the same time Arter offered to show Savoca the respondent's books, but the latter
expressed himself as being uninterested in them, saying, "I don't care about looking at tine
books, I am interested in my job. I am a family man , I got five kids .
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B The contentions of the parties as to the legality of Savoca ' s discharge, and
concluding findings with respect thereto
In answer to a question by respondent's counsel, Arter testified as follows :
Mr. Savoca's employment was terminated purely and simply because lie
intimated that I was it liar and that I manipulated my books and for no
other reason And at his own request that lie didn't want to work for a
company that was losing money.
On the basis of Arter's above-quoted testimony, and in the absence of any
evidence in the record to support a contrary finding as 'to Arter's state of mind,
the undersigned concludes and finds that the respondent's discharge of Savoca
was motivated by Arter's resentment at the remarks made by Savoca during the
meeting of April 5, and during the conversation between them immediately fol-
lowing the said meeting.
Counsel for the Board contends in substance that the remarks made by Savoca
to Arter, whether ill-advised or not, NN en e confined to the subject then ender dis-
cussion between the employees and the respondent, namely the wage increase
sought by the employees; that such statements therefore constituted an exercise
of Savoca's right, as defined in Section 7 of the Act, to engage in concerted activi-
ties for the purpose of collective bargaining ; and that the respondent's discharge
of Savoca for exercising that i ight cqnsequently was in violation of the Act The
respondent argues that Savoca %%as discharged because he "in substance called
[Arter] a liar and a trickster with his books and [said] he didn't want to work
for it company that was losing money . . [and I that is not concerted activity."
That the above-described meeting between Arter and the employees constituted
a collective bargaining conference, though perhaps one unconventional in form,
seems beyond question. Arter, the employer-representative, attended the meeting
for the purpose of placing before the eniplo^ees the respondent's position as to
the amount of wage increase it could afford to grant, and then entered into nego-
tiations with the employees, who were arguing for it more substantial increase.
Although the employees had not designated it bargaining committee to represent
them on this occasion, but instead threw the floor open to all employees to enter
into the discussion, which resulted in a somewhat disorderly procedure, this did not
deprive the meeting of its essential character as a collective bargaining confer-
ence, and one into which Arter entered voluntarily and without objection It is
to be noted, moreover, that preceding Arter's entrance into this conference, a
majority of the employees had made a decision to reject the respondent's offer of
a 7-cent raise, and to demand it greater increase It follows, and the under-
signed concludes and finds, that by arguing with Arter for a greater increase than
the respondent was offering, Savoca was carrying out the mandate of the majority
of the employees, and was thereby engaging in such concerted activities for the
purpose of collective bargaining as are defined and protected by Section 7 of the
Act.
It remains to be decided whether the character of Savoca's remarks was such,
even though they were made during the course of a concerted activity, as to
exceed permissible bounds, and to divest them of the protection of the Act, and,
consequently, to justify the respondent in discharging Savoca because Arter
felt personally affronted by his statements In considering this question, the
undersigned is not unmindful of the fact that in arguing for a greater wage
increase than the respondent had offered, Savoca questioned the truth of Arter's
assertion that the respondent was operating at a loss ; waved aside Arter's offer
THE BETTCHER MANUFACTURING CORPORATION 535
to produce the respondent 's books as proof of this assertion ;. ,unplted ` that if
the books showed a loss, they might have been "juggled" for the purpose of
supporting Arter's contentions ; and in addition, engaged in the bluster-' of
declaring that no employee, including himself, wanted to work for a company
which was losing money. Such a combination of pugnacity and bluff may not
be an ideal pattern for the conduct of collective bargaining negotiations, bur
unfortunately, as is common knowledge, not all collective bargaining is con-
ducted on a level of gentility and restraint Tempers are often aroused, and
frequently one or both parties engage in acrimony and cast aspersions at one
another's motives. The Board does not, tinder such circumstances, under-
take to act as a monitor or censor of the conduct of either employer or em-
ployees Thus, for example, the Board has held that all employer's unproved
accusation, during a collective bargaining conference, in the presence of em-
ployees, that the union representative was corrupt, even though "ill-advised,"
did not constitute an unfair labor practice because it was made "during a heated
argument" in the course of collective bargaining negotiations (Matter of Esser,
Rubbc) Co, Inc, 50 N. L B B 288, 291) The undersigned assesses Soivoca's
statements to Arter in a similar light From the record it is clear that the
meeting at which the discussion took place was generally loud and boisterous,
and that Arter as well as Savoca, in common with the others in attendance,
was vigorous to the point of piofanity in his choice of language. That the
verbal exchange between them developed some heat, under such circumstances,
is not surprising' As has been pointed out above, it is not uncommon for such
heated arguments to develop during bargaining negotiations, and for insult-
ing reinaiks to be exchanged, and as we have seen, the Board has taken cog-
nizance of this fact, and has not applied to statements made during a bargaining
discussion, the same standards it would to those uttered under other cir-
cumstances
All of this is not to say that any abusive statement made by an employee to
his employer dit ring the course of a bargaining conference is protected by the
Act The Act does not grant immunity to an employee, even during collective
bargaining , from the ordinary penalties for insubordination, it does, however,
protect the right of employees to engage in collective bargaining vigorously and
without sear of reprisal To be protected, it would appear that statements
by employees during bargaining conferences must be addressed to or have
some reasonable bearing on the bargainable issues ; otherwise, they would have
an iusnfeient-relation-to-the-bargain ing -process to be termed "collective activ-
ity" since the collective activity protected by the Act in such a situation is
the bargaining process.
Applying the foregoing test to the statements made by Savoca, one is forced to
conclude that they fall within the purview of concerted activities for the purpose
of collective bargaining as defined in, and protected by, the Act, since they were all
directly addressed to the issue under discussion , i. e , whether or not the
respondent could afford to grant the wage increase demanded by the employees
Under the applicable decisions of the Board and the Courts, concerted activities
' It will be remembered that on the occasion of his discharge, Savoca pleaded with Aiter
to be allowed to keep his job.
s Arter, as well as Savoca , indulged in rather strong language . E g, as Savoca credibly
testified , and the undersigned finds, Savoca, during the discussion , suggested that it the
respondent granted a substantial wage increase , the morale of the employees would be
heightened to such an extent as to result in greater production . Thereupon Arter de-
manded "Can you put up $20 , 000 bond to guarantee that principle?" When Savoca
answered that he could not, Arter retorted , "Then put your money where your mouth is "
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which are protected by the Act are not divested of that protection because they
may be unwise, tactless, or otherwise ill-advised Mattel of Reynolds Interna-
tional Pen. Co., 70 N. L R B 932; N L. R B. v. Mackay Radio cE Telegraph Co,
304 U. S 333, 344 ° Not even every foi in of illegal conduct (as distinguished from
conduct which is merely inadvisable) arising from concerted activity protected
by the Act, justifies punitive action by an employer. Roth the Board and the
Courts have recognized that a distinction is to be drawn between cases where
employees engaged in concerted activities exceed the bounds of lawful conduct
in "a moment of animal exuberance" (i1Id1 Wagon Drrzei s Union v Mcadoicnloor
Dail tes, 312 U S. 287, 293), or in a manner not activated by improper motives,
arid those flagrant cases in which the misconduct is so violent or of such serious
character as to render the employee unfit for further service Compare N L R. B.
v Fanstccl Metallurgical Coil), 306 U S. 240, and Sontbein Steannslinp Co. v.
N. L. R. B., 316U S 31, with Bee,ksliit eKitt tting.llillsv X.L It B, 139 F. (2d)
134, 141 (C C A 3), cert denied 322 U S. 747, and N L R B v Stackpole Carbon
Co., 105 P. (2d) 167, 176, cert. denied, 308 U S 605.
In all such cases as the one at bar, we are confronted with the question whether
the protection of the right of employees to full freedom in their concerted activi-
ties should be subordinated to the undoubted right of the employer to maintain
discipline and to punish insubordination. Flere the circumstances surrounding
the particular incident in issue, as well as general principles, seem to iequire
that the right of the employees involved to be free to exercise their statutory
rights, be held paramount to the right of the employer to punish an employee
whom he has deemed to have insulted him It must be remembered that
Savoca's statements were uttered to Arter, not during working hours, nor even
on the respondent' s lnremises , but in a setting where the pasties met presumably
its equals , to bargain, over an issue then in dispute betiicen them The lack of
restraint and intemperate language which characterized the discussion was, as
we have seen, not confined to Savoca, but was also indulged in by Arter. With
this background in mind, the night which the respondent seeks to vindicate is
not that of punishing insubordination, but that of implementing its resentment
against remarks which it feels were presumptuous, false, and insulting That
right, the undersigned concludes and finds, is subordinate to the right of em-
ployees to bargain collectively with their employer without the restraints which
would necessarily be imposed if the employer were to be allowed to sit in judg-
ment on the propriety of their bargaining arguments, and to penalize those of
their representatives whom lie decreed to have overstepped the bounds of such
propriety. The guaranty embodied in the Act of the right to bargain collectively
is intended "to assure a privilege that in itself must be so actual and certain that
fear and doubt are absent from the individual's mind, or the freedom is but an
abstraction. If the speaker must hesitate before uttering his thoughts, if he
must weigh and nicely balance every word so as to determine whether what lie is
about to say is permitted or forbidden, the guaranty . . . is little more than
theoretical." 10 In such circumstances, the speaker is "wholly at the mercy of
0 Compare • Thornhill v. Alabama, 301 U. S. 88, and Anierican Federation of Labor v
Swing, 312 U S 321, in which the supreme Court held that picketing was within the pio-
tection of the First Amendment, and that such protection is not lost by the misconduct or
incivility of the pickets, unless such misconduct is so serious as to occasion imminent and
aggravated danger of a breach of the peace.
10 Quoted troni opinion of the U S Circuit Court of Appeals for the Eighth Circuit dis-
cussing the right of tree speech (N L R. B v. Montgomery TVard ERG,
Trial Ea,antiine7.
Dated December 19, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that •
WE WILL NOT discourage membership in THE GRIEVANCE COMMITTEE OF
THE BETTCHER MANUFACTURING CORPORATION, or any other labor organiza-
tion of our employees, or interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist THE GRIEVANCE COMMITTEE OF THE Bi:rTCHER MANUFACTUR-
ING CORPORATION, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, by discharging or in any manner discriminating in regard to the
hire or tenure of employment of any of our employees.
WE WILL OFFER to James Savoea immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for
any loss of pay suffered as a result of the discrimination.
All our employees are free to become or remain members of the above-
named union or any other labor organization We will not discriminate in
THE BETTCHER MANUFACTURING CORPORATION 541
regard to hire or tenure of employment or any term or condition of employ-
ruent against any employee because of membership in or activity on behalf
of any such labor organization.
THE BETTCHER MANUFACTURING CORPORATION,
Employer.
By ------------------- -----------------------------
Dated ------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.