Thor Power Tool Co.

National Labor Relations Board - Board Decisions

Sep 29, 1964

148 N.L.R.B. 1379 (N.L.R.B. 1964)

THOR POWER TOOL COMPANY 1379
(c) Notify the Regional Director, Region 18, in writing, within 20 days from the
date of the receipt of this Decision, what steps they have taken to comply herewith 11
I also recommend that, unless on or before 20 days from the date of receipt of
this Decision and Recommended Order that Respondent notify the said Regional
Director, in writing, that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order, requiring the Respondent to take
the action aforesaid
"In the e%ent that this RLeomniended Order he adopted 'iv the Board, this provision
shall be modified to read "Notify said Regional Direetoi, in niituig, within 10 days
trom the dale of this Order, lihit Steps the Respondent has taken to comply heienith"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Boaid, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that
WE WILL NOT refuse to bargain collectively with International Union of
Operating Engineers, Local No 49, AFL-CIO, as the exclusive representative
of the employees comprising the appropriate unit described below
WE WILL NOT unlawfully poll employees to determine their union sympathies
and desires
WE WILL Nor threaten employees with economic reprisals
WE WILL NOT, in any like or related manner, interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed by Section 7
of the National Labor Relations Act
WE WILL, upon request, bargain collectively with International Union of
Operating Engineers, Local No 49, AFL-CIO, as the exclusive bargaining rep-
resentative of all employees in the following bargaining unit with respect to
rates of pay, wages, hours of employment, and other conditions of employment
All employees of the Company, including heavy equipment operators,
mechanical and maintenance personnel, greasers, push-cat operators, packer
operators, dozer operatois, and patrol operators, but excluding water-truck
drivers, office clerical employees, professional employees, guards, and
supervisors , as defined in the Act
All our employees are free to become or remain, or refrain from becoming or re-
maining, members of the above-named union or any other labor oganization We
will not discriminate in regard to hire or tenure of employment, or any term or
condition of employment, against any employee because of membership in or activity
on behalf of any labor organization
STRUKSNES CONSTRUCTION CO, INC,
Employer
Dated- ------------------ By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material
Employees may communicate directly with the Board' s Regional Office, 316
Federal Building , 110 South Fourth Street, Minneapolis , Minnesota, Telephone
No 339-0112 , Extension 2601 , if they have any question concerning this notice or if
they have information that its provisions are being violated
Thor Power Tool Company and Donald A. Tinsley. Case No
13-CA-5904 September 29, 1904
DECISION AND ORDER
On March 18, 1964, Trial Examiner Frederick U Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
148 NLRB No 131
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exami-
ner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief and the General
Counsel filed cross-exceptions and a supporting brief to which Re-
spondent filed a reply brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifica-
tions noted herein.
1. We agree with the Trial Examiner that Tinsley was discharged
in violation of the Act.
As more fully set forth in the Trial Examiner's Decision, Tinsley
was a member of the Union's grievance committee. At the time of
the relevant events he and fellow committeeman Gordon were en-
gaged in an informal discussion with Plant Superintendent Russell
concerning an employee's grievance. Russell became increasingly
irritated as the meeting progressed and eventually used an "obscene
and offensive epithet," to Tinsley. Tinsley had retained his com-
posure throughout, but at that point said that in view of the hostile
attitude they would have to present the matter as a formal grievance.
As Tinsley, Gordon, and the employee were leaving the office, Tinsley
made a muttered- comment to Gordon which used an objectionable
term probably in reference to Russell. Russell overheard the words
"horse's ass," verified that they had been used, assumed that they
referred to him, and overtook Tinsley and discharged him on the
spot. -
The Trial Examiner concluded, and we agree, that Tinsley was
fired because he, called Russell an objectionable name. We adopt the
finding that Tinsley's characterization of Russell was protected ac-
tivity because it was, part of the res gestae of the grievance discus-
sion, and hence the discharge for the use of the particular language
was unlawful. In addition, we -do not believe, on the basis of the
entire record, that Tinsley was terminated solely because he used the
derogatory term. Rather, we are satisfied that Russell's rising anger
was directed to Tinsley throughout the grievance discussion because
of Tinsley's participation in and conduct of the grievance meeting.
The final explosion which resulted in Tinsley's discharge was the
culmination and product of the grievance discussion, rather than the
I Respondent 's request for oral argument is hereby denied as the record , the exceptions,
and briefs adequately present the issues and positions of the parties.
THOR POW ER TOOL COMPANY 1381
i esult of Tinsley's comment 2 As such it was part and parcel of
Russell's angel at Tinsley for his vigorous participation in the griev-
ance pioceeding Accoidingly, we are of the opinion that Tinsley
was in fact dischaiged because he paiticipated in the presentation
of the giievance, clearly a protected activity, and that it was viola-
tive of Section 8(a) (3) of the Act
2 We also agree with the Tiial Examiner that, contrary to the
Respondent's contention, the availability of the contractual grievance
procedure does not wariant the Boaid's withholding its processes in
this case
It does not appear. that theic is an existing arbitration award pass-
ing on of relating to this matter In fact, it appears that neither
the Respondent nor the Union has sought to invoke arbitration 3 and
the chaiging individual, who was the subject of the alleged unlawful
dischai go, does not have the right undei the contract to require fur-
thei action under the giievance pioceduie
Undei all the circumstances, we reject the Respondent's contention
that the Board should exeicise its discietion to require that the
charging individual resoit to the contract's procedures and that it
should refuse to act upon the chai.ges in this case 4
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Tiial Examiner and oideis that Thor Power Tool
Company, its officers, agents, successors, and assigns, shall take the
action set forth in the Tiial Examinei's Recommended Order 6
MEMBER BROWN, dissenting I would not ieach the merits of this
case at this tirlle In my opinion the Board should withhold its
processes pending the parties' iesoit to and exhaustion of their con-
tiactual grievance and aibitiation machinery and thus accommodate
the statutory policy of giving full play to the parties' contractual
i emedy
I have recently set forth my views as to the factors to be consid-
ered in determining whether to regiuie resort to arbitration e Of
the kinds of situations there discussed, this case falls into the class
2In this connection we note that Tinsley was provoked by Russell ' s unjustified language
dunng the griesance discussion
The record reveals that the Union specifically indicated it isould not proceed further
under the contract because the employee had filed the instant charge with the Board
4 Cloverleaf Division of Adams Dairy Co , 147 NLRB 410, National Screen Products
Co 147 NLRB No 85, footnote 1 , Smith Cabinet Manufacturing Company, Inc, 147
NLRB 1506
G The new address of the Regional Office is 881 U S Courthouse and Federal Office
Building, 219 S Dearborn Street, Chicago, Illinois, Telephone No 828-7572
6 See my concurrence In Cloverleaf Division of Adams Dairy Co , supra
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of those coming before the Board in which no award has been issued
and the Board is asked to decide whether the parties must resort to
their contract. The matter is further complicated by the fact that
the Charging Party here is an individual who was allegedly dis-
charged in violation of the Act and who first sought and secured
assistance of the Union under the grievance procedure and then,
prior to the exhaustion of the contractual remedy, filed the instant
charge with the Board. Accordingly, in this case it is an employee
represented by the Union and covered by the contract, rather than
the employer or union, who seeks to pursue concurrently the arbitra-
tion and the unfair labor practice routes. Nevertheless, as I believe
an employee is bound by the acts of his bargaining agent,7 I would
reach the same conclusion as though the Union were the Charging
Party herein.
As I stated in my above-cited concurrence, I believe it is incon-
sistent with the statutory policy of favoring arbitration for the
Board to resolve disputes which, while cast as unfair labor practices,
essentially involve a dispute with respect to the interpretation or
application of the contract. And where the parties have historically
reached voluntary settlements, but an award has not yet issued, the
Board should withhold action pending such award in order that it
may then determine whether the arbitration proceeding complied
with the Spielberg standards.8 As I see it, this is the precise situa-
tion in this case.
Here Tinsley was discharged allegedly because of his activity as a
member of the Union's grievance committee. The contracting parties
had succeeded in resolving their differences in the past, and the
Union was in the process of handling Tinsley's personal grievance
at his request. The Respondent and the Union had apparently
reached the fourth step of the grievance procedure, after which
arbitration could have been invoked by the Union, when Tinsley
filed the charge. I would grant the Respondent 's request that the
Board stay its processes and permit the parties to resort to their
agreed-upon method for solution.9 For it was only after Tinsley,
7 Of course , I would not preclude an employee from opposing acts of his union which
are violative of its duty to fair representation , as in Hisanda Fuel Company, Inc., 140
NLRB 1:81; Hughes Tool Company, 147 NLRB 1573
s Spielberg Manufacturing Company, 112 NLRB 10'80
O The Trial Examiner finds that the time has passed for resorting to the contractually
provided machinery . I do not agree . While the provisions of the agreement provide,
article IV, A that ". . discharges, not submitted to arbitration within sixty (60) days
after final answer is given in 4th [sic] step of the grievance procedure of this Article,
shall be automatically dropped," the record is not entirely clear that the Respondent had
given a final answer in the fourth step of the grievance procedure Thus, the time
within which to file the arbitration has not yet begun to run. Yet, assuming without
deciding that time has run out on the right to invoke aibitration, the parties may by
agreement extend the time limit . ( Article IV , A ) The Respondent clearly indicates its
assent to an extension of time and the record shows the Union would prefer a contractual
resolution of this dispute.
THOR POWER TOOL COMPANY 1383
without justifiable reason as far as the record reveals, took con-
flicting action by filing the instant charge that the Union suspended
its active interest in processing the grievance which he himself had
initiated. If an employee can initiate and repudiate the acts of his
duly designated representative at his whim, the statutory objective
of fostering voluntary settlements by parties to collective-bargaining
agreements cannot be attained, for it can be undermined by any
employee without reason or cause. This could not have been intended
by the Congress.
In sum, under the circumstances here, I believe the statutory ob-
jective could best be attained by requiring the employee to proceed
under the contractual grievance procedure. To this end I would
hold the instant case in abeyance to allow the Respondent and the
Union sufficient time to submit the question to an arbitrator and
secure his disposition. Following an award by the arbitrator, I
would determine whether the proceeding before the arbitrator met
the standards set forth in the Spielberg case , and I would reject that
award only if it did not comply with those requirements. This is the
procedure followed by the Board in Dubo Manufacturing Corpora-
tion,10 and it seems well suited to the needs of the instant case.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
10142 NLRB 431.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard before Trial Examiner Frederick U. Reel , at Chicago, Illinois, on
January 13-14 , 1964,1 pursuant to a charge filed the preceding September 30 and a
complaint issued November 19, arises out of the discharge of Donald Tinsley on
September 20. At issue are (1) whether the circumstances attending the discharge
establish that Tinsley was discharged for conduct within the ambit of statutory pro-
tection ; (2) if so, whether the complaint should nevertheless be dismissed because of
the failure of the dischargee and his bargaining agent to exhaust the grievance and
arbitration procedures set forth in a collective -bargaining agreement ; and (3 ) whether,
assuming liability, the record establishes that the Respondent made an unconditional
offer to reinstate the Charging Party. Upon the entire record ,2 including my obser-
vation of the demeanor of the witness, and after due consideration of the briefs filed
by General Counsel and by Respondent , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
Respondent , hereinafter called the Company, a Delaware corporatoin engaged at
Aurora, Illinois, in manufacturing power tools, annually ships goods valued in excess
of $1,000,000 from that plant to points outside the State, and is engaged in commerce
1 All other dates herein refer to 1963 , unless otherwise indicated
2 The transcript of testimony contains an inadvertent error of the reporter, who indi-
cated at Tr 476, lines 17-18, that General Counsel ' s Exhibits Nos 1-9 were received in
evidence As is clear from the colloquy on'pages 475-476 , only Exhibits Nos. 1-6 and 9
are in evidence ; Exhibits Nos 7 and 8 were not offered Also, the word "not" appearing
as the seventh word at Tr . 476, line 16 , should read "now."
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of the Act. Local 236, International Association of Machinists,
hereinafter called the Union, is a labor organization within the meaning of the Act,
and has been, for several years, the statutory bargaining representative of the Com-
pany's production employees.
II. THE UNFAIR LABOR PRACTICE
A. The circumstances surrounding the discharge of Tinsley
Donald Tinsley, a machinist employed by the Company, was at the time of the
events in question (September 1963) a "departmental committeeman" and a "general
grievance committeeman" for the Union. In the former capacity he handled the
first stage of grievances arising within his department; as one of six "general griev-
ance committeemen" he also participated in grievance discussions at a higher level.
On the afternoon of September 20, just as his work shift was ending, Tinsley was
approached by employee George Bloom, who was reporting for work on the next
shift. Bloom showed his timecard to Tinsley, noting that it had been altered by the
foreman. More specifically, the timecard showed that on a preceding day Bloom had
punched in and then punched out 20 minutes later, and the foreman had scratched
,out the time, thus indicating that Bloom would not be paid for the 20 minutes. Bloom
asked Tinsley for assistance in getting the time restored; and after ascertaining
that union shop chairman Stevens was unavailable, Tinsley and Bloom started
for the office of Plant Superintendent George Russell. On their way they were
joined at Tinsley's request by Bob Gordon, another of the six "general grievance
committeemen."
The three men met Russell as he was. returning to his office from a meeting, and
upon learning that they had a matter to discuss and that Stevens was unavailable,
Russell invited them into his office to discuss it. The four then entered Russell's
office, along with Otto Gasper, Russell's assistant, who, however took no part in the
-ensuing discussion and overheard only parts of it as he was working at his desk.
To this point, the evidence is substantially undisputed. The evidence of what was
said in Russell's office and immediately thereafter is in some conflict, particularly as
to the choice of words used by the several participants. The following recital of that
discussion and its aftermath represents my considered judgment, based on the record
evidence, and on my observation of the witnesses, of what transpired.
Tinsley explained to Russell that they had come to see him about the matter of
Bloom's timecard, as they thought Bloom should be paid for the 20 minutes in
question. Russell inquired of Tinsley whether Bloom had worked. Tinsley referred
the inquiry to Bloom, who replied that he had worked, and that the foreman had
upset him by standing at the edge of the machine. Up to this point, all the partici-
pants had been calm, but commencing here, Russell began to show some irritation
which continued to mount as the discussion proceeded. Russell stated to Bloom that
the latter had not been working, and also criticized his general record of absenteeism
and tardiness. Tinsley interjected that they had come in to discuss the particular 20
minutes in question and would like to limit the discussion to that matter. Russell
said, "Tinsley, keep out of this," and resumed his interrogation of Bloom, in louder
tone and with face flushed. At this point Gordon reminded Russell that employees
who defaced timecards were discharged for that offense, and asked Russell what he
intended to do to the foreman who had "defaced" Bloom's card. Russell angrily
replied, "absolutely nothing," explaining with some heat that the foreman was right
and that Bloom had done no work on the occasion in question. Tinsley attempted
to explain that the foreman had been harassing Bloom, but Russell indicated that
he wanted to hear Bloom's version, not Tinsley's, as Tinsley's report was hearsay at
best. Russell again attacked Bloom's attendance record as intolerable, at which point
Tinsley again interjected that they had come in only to discuss the particular 20 min-
utes and not general matters of attendance. Russell again told Tinsley to be quiet
and resumed his interrogation of Bloom. Tinsley stated to Russell, "George, you are
out of order We are here to discuss the matter of the timecard, nothing else."
Russell, by this time highly excited and red in the face, turned on Tinsley. and using
an obscene and offensive epithet, told Tinsley, "Shut your mouth." Tinsley,
who up to this point had retained control of his temper, then stated that in view of
the hostile attitude they would have to present the matter as a formal grievance. He,
Gordon, and Bloom then turned to go, leaving Russell behind, seated at his desk.
As the three men were leaving, both Russell and Gasper overheard Tinsley muttering
something to Gordon, of which the only intelligible words (spoken somewhat more
loudly than the others) were "the horse' s ass." Russell verified from Gasper that
THOR POWER TOOL COMPANY 1385
the objectionable phrase had been uttered. Assuming (probably correctly) that it
referred to himself, he angrily hastened after Tinsley, jabbed his finger at and against
Tinsley, and discharged him on the spot.
Some moments later, before Tinsley had left the plant in the company of Gordon,
Russell came up to them, forcefully placed his hand on Tinsley's shoulder, and
ordered him to leave. Tinsley, who by this time had lost some of his earlier calm,
told Russell not to put his hands on him any more, that he (Tinsley) was leaving, and
(repeating himself) that he did not want Russell to put hands on him again. Gordon
and Tinsley then left. Although the matter is not free from doubt, I find that Gordon
steered Tinsley away to avert the possibility of further combat between the other
two men, but that Tinsley did not make any verbal or physical threat to Russell.
The Company eventually paid Bloom for the 20 minutes in question.
B. The grievance procedure with respect to Tinsley's discharge
On Monday morning, September 23, the first working day after Tinsley's discharge,
the Union in accordance with the grievance procedure set forth in its contract with
the Company, filed a grievance respecting Tinsley's discharge. The matter was dis-
cussed at a meeting of union representatives (not including Tinsley) and manage-
ment representatives that afternoon, and early the following morning management
replied to the Union in writing, setting forth management's reasons for the discharge
and concluding that "the discharge stands." The matter was then ripe for further
discussion at what the contract termed the "fourth stage," and as such a "fourth stage"
discussion of other matters was already scheduled for that afternoon, September 24,
the Tinsley affair was added to the agenda.
The Tinsley matter was discussed for several hours that afternoon and evening by
representatives of management and the Union. Tinsley was not present, but Gordon,
who had shared the experience with Tinsley, attended for all but a few minutes of
the session. In the course of the discussion, mention was made of the four other
grievances then pending which Tinsley had filed. Two of these grievances arose out
of discipline meted out to Tinsley for failure to conform to certain procedures for
handling grievances, prescribed by Russell the preceding June, procedures which
Tinsley and other union committeemen found vexatious and harassing. Of the four
earlier Tinsley grievances, one had resulted in his being suspended for 2 days without
pay. During the meeting on September 24 the Union proposed that the Company
settle the matter by absolving Tinsley of fault in the earlier matters and return him
to work, "transferring" the 2 days' loss of pay already suffered on the earlier griev-
ance into 2 days' loss of pay, in lieu of discharge, for the Russell episode described
above. Inasmuch as Tinsley had already missed 2 days of work (Monday and
Tuesday) following his discharge, the net result of this proposal would have been
to restore him to work, to give him 2 days' pay (i.e., he had now lost 4 days-2 on
the earlier suspension and 2 on the current matter-and his net loss under the pro-
posal was to be only 2 days), and to "clear" him on the earlier matters. The Com-
pany regarded this as a "whitewash" of Tinsley and declined to accept it. Indeed, to
quote the testimony of the Company's personnel director, "there was no final offer
[of reinstatement] made at this particular meeting."
The following day, September 25, the Company's personnel director called the
union shop chairman to discuss the possibility of further discussions of the Tinsley
matter. As a result, a meeting was held September 27 between the union committee
and the personnel director. On this occasion the Company offered to settle all the
Tinsley grievances by, in effect, allowing the penalties to stand, except that the dis-
charge would be commuted to "two days off without pay for disrespect shown to
Supt. Russell." The Company's offer also provided that the earlier grievances in-
cluding those arising out of the grievance procedures were to be "completely de-
Otroyed" (although the penalties theretofore imposed would stand) and that the
Union was not to make those instances "a basis for any future grievances on the
issues as stated." The Union rejected this offer at the September 27 meeting.
On September 30 Tinsley filed with the Board's Regional Office the charge initiating
this proceeding. The Company received a copy of this charge on October 3. Mean-
while, on October 2, the Company wrote the Union, in substance repeating the
Company's offer of September 27, and again rejecting the Union's proposal of
September 24. Although characterized as a "fourth stage reply" (i.e., the last stage
prior to possible arbitration under the contract), the letter of October 2 suggested
"further meetings" "to properly negotiate potential settlement." A further meeting
held October 9 was devoted in part to the Tinsley matter but produced no result.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apparently the matter was also discussed to no avail at a meeting on October 16,
during which the personnel director commented that the Union should decide whether
to pursue the grievance to arbitration or go to the Board.
On October 22 the Union presented a proposed settlement, dated October 18,
which, inter alia, would have restored Tinsley with backpay, and would have clarified
the grievance procedures. On that occasion the Union stated that Tinsley would
drop his charge with the Board if the Company accepted the Union's proposal. The
Company, however, rejected it. Also on October 22, the Union's International vice
president indicated in a letter to the Local Union's secretary that because Tinsley
filed a charge with the Board, instead of proceeding through the contractual griev-
ance procedure, the Union had no further responsibility for processing his case. On
November 6 the Union asked the Company for a final answer with respect to Tinsley's
discharge. On November 9 the Company replied, adhering to the views stated in
its "fourth step" letter of October 2, but reiterating its suggestion that "we continue
our discussions toward a mutually acceptable solution prior to resorting to the ulti-
mate of our arbitration if necessary, as prescribed in our contract arrangement."
Apparently no further discussions were had, and the complaint in this case issued
10 days thereafter. Under the contract, the Union has 60 days "after final answer
is given in fourth step of the grievance procedure" in which to invoke the arbitration
procedure; in discharge cases, the contract provides that if arbitration is to be invoked
the Union shall do so "at its earliest convenience" and not to exceed 60 days.
C. Concluding findings
1. The protected character of the activity
As indicated above, I find-sustaining Respondent's contention in this respect-
that Tinsley used the expression "the horse's ass" in speaking to Gordon as they left
Russell's office, and that this utterance "triggered" the discharge, as Russell overheard
it and inferred, probably correctly, that it referred to him. The issue presented is
whether, under all the circumstances, Tinsley in making his comment to Gordon was
engaging in union or concerted activity which the statute protects. Manifestly, under
ordinary circumstances, Russell could fire an employee for making such a comment.
Indeed, Russell could lawfully fire an employee for a good reason, a bad reason
(other than union or concerted activity), or no reason at all. And although Russell
could not lawfully discharge a man merely for being a union member or for pre-
senting a union grievance, union membership or activity confers no immunity against
discharge for cause; if Tinsley, in irritation at Russell's conduct during the grievance
meeting, had destroyed company property or sabotaged production, Russell could
lawfully have discharged him. These truisms-that an employer can lawfully dis-
charge an employee for any reason except union or concerted activity, that such
activity is itself protected but affords no protection against discharge for other cause,
and that not all acts performed in the course of union activity enjoy statutory protec-
tion-serve merely to present the question in this case, not to answer it.
What is really involved here, as I see it, is, another of those difficult "balancing"
problems under the statute, not too dissimilar from that which prompted the Supreme
Court to refer to the need of "working out an adjustment" between the statutory
rights of employees "and the equally undisputed right of employers to maintain
discipline in their establishments.' Republic Aviation Corporation v. N.L.R.B., 324
U.S. 793, 797-798. Even more analogous, I believe, are the cases which draw the
line between employees whose concerted or union activities exceed the" bounds of
lawful conduct in "a moment of animal exuberance" (Milk Wagon Drivers Union v.
Meadowmoor Dairies, Inc., 312 U.S. 287, 293) and employees whose misconduct is
"of such serious character as to render the employee unfit for further service." See
N.L.R.B. v. Illinois Tool Works, 153 F. 2d 811 (C.A. 7). Although among the
numerous cases which seek to prick out that line are several dealing with employee
use of epithets and other offensive employee language, none presents a situation on
all fours with the case at bar.
For example, the Company relies heavily on N.L.R.B. v. Blue Bell, Inc., 219 F.
2d 796 (C.A. 5), holding that an employee was not within statutory protection in
circulating a letter in which she called a company official a "liar," even though her
resort to the epithet was in the context of an organizing campaign. But the court
emphasized the written, public character of the denunciation; the court had no occa-
sion to address itself to the question whether it would have reached the same result
if the remark had been oral, had been made only to another union committeeman,
THOR POWER TOOL COMPANY 1387
had occurred as the employee was in the act of leaving a bargaining conference, and
had followed, hard upon the employer's use of an obscene epithet addressed to the
employee.
General Counsel, on the other hand, relies on Bettcher Manufacturing Corpora-
tion, 76 NLRB 526, 527, 532-537, where the Board extended statutory protection to
an employee who in the course of a bargaining meeting accused the employer of
being a crook and a liar. But the Board emphasized that veracity is occasionally
questioned in the course of bargaining negotiations which should be free, frank, and
uncensored; the Board had no occasion to address itself to the question whether it
would have reached the same result if the remark had been directed at the employer's
general intelligence and behavior rather than at particular statements made in the
course of bargaining, or if the remark had been made in "a separate episode" after
bargaining had concluded (see 76 NLRB at 527, footnote 2).
Among the most recent cases in this area is Butcher Boy Refrigerator Door Com-
pany, 127 NLRB 1360, enforced by the Seventh Circuit, 290 F. 2d 22. In that case
an employee, frustrated in his efforts to discuss a grievance with the employer, turned
away from the latter and uttered an obscenity. The Trial Examiner found that in
the circumstances the employee was within the ambit of statutory protection, 127
NLRB at 1371-1372, citing Bettcher. He also found, however, that the remark in
question was not the real reason for the discharge. The Board affirmed, without
discussing the matter; and the Seventh Circuit enforced the Board's Order, likewise
without discussion of the point Indeed, the court's opinion suggests that the court
did not reach the issue, and that its decree of enforcement rests on the "pretext" find-
ing. In any event, Butcher Boy would be as distinguishable here as Blue Bell and
Bettcher, for in Butcher Boy the offensive remark was not intended to be descriptive
of the employer.
It is not surprising that no case can be found squarely controlling the result here,
for it is the essence of these "balancing" cases that the balance must be struck in
each case with an eye to the special facts presented by it. What are the special cir-
cumstances relied on by the parties here, and what weight should be accorded them?
The Company emphasizes that the offensive remark was not made in the course
of bargaining, for the conference had ended and Tinsley was leaving. Hence, the
Company argues, his comment could not have advanced resolution of the dispute,
and in that sense partook of less statutory protection than if, for example, Tinsley had
attacked Russell's veracity in the course of the discussion. Admitting that in the
course of collective bargaining "The law allows the parties the necessary freedom
to express themselves," and that "in the rigorous byplay of collective bargaining,
profanity is the normal accompaniment of the human voice," the Company argues
that "here the union activities had ended" and inquires, rhetorically, whether if
"Tinsley had met Russell in the street and called him a horse's ass . . . the circle of
protection [would] extend that far" (Company's brief, pp. 41-42). Furthermore,
the Company argues that the term "horse's ass" in this context exceeds the normal
profanity permissible in the course of bargaining, that it conveys " a sneering con-
tempt for the intelligence or behavior of the person at whom it is leveled," that it is
"a particularly opprobrious epithet from an, employee to a-supervisor," and that at
the least "the matter is a subjective one and Mr. Russell is entitled to exact his own
threshold of tolerance, if not unreasonable" (Company's brief, pp. 41, 38).3
The contrary considerations spring primarily from the statute itself. Tinsley was
in fact engaging in an activity protected by the statute while he was discussing the
grievance with Russell, and Tinsley's comment on leaving the office was so directly
related to the grievance meeting as to be, in effect, a part thereof. Moreover,
Tinsley's comment was made not to Russell but to Tinsley's fellow committeeman,
Gordon, and as such was part of a discussion between two union men on a union
matter. Although Russell overheard the comment, it was not made to him; on the
contrary, the speaker had his back to Russell at the time. Nor can I find that
Tinsley intended Russell to hear the remark, and Russell himself had to verify from
Gasper that Russell had correctly heard the objectionable phrase in the course of
the otherwise indistinguishable "mumble" which Russell heard emanating from the
men as they left. The fact that these particular words were distinguishable may
well be attributed to the rising heat of Tinsley's indignation as he spoke to Gordon.
s Indeed. company counsel goes so far as to argue that "Tinsley's conduct here dis-
qualifies him from further usefulness as an employee" (brief, p. 44), but I regard that as
an advocate's hyperbole as his next sentence begins: "An unconditional offer of reinstate-
ment was made by the Company . . ." (brief, p. 45).
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is far from surprising that an employee whose supervisor has just addressed him
obscenely and who had just participated in what was to him a frustrating grievance
meeting should mutter to a fellow committeeman a comment which conveyed "a
sneering contempt for the intelligence or behavior" of the supervisor. Although the
Company argues that Tinsley could have replied "then and there" to Russell's ob-
scenity rather than sotto voce as he left the room (Company's brief, p. 44), the record
shows that Tinsley's immediate response to the obscenity was to recognize that Rus-
sell's attitude precluded informal settlement of the grievance, so that the termination
of the meeting and the "horse's ass" remark followed closely on Russell's objection-
able phrase and were in large part directly responsive thereto.
In my view, weighing the competing considerations in this case, the scales tip
rather heavily in favor of the employee. The Company's argument that the bar-
gaining conference had ended seems to me to take too narrow a view; the remark
in question was uttered as Tinsley left the room and was part of the res gestae, as it
were. Moreover, even if the conference be deemed over, Tinsley's remark was part
of a statement he was making to Gordon, his fellow committeeman, concerning union
affairs. Hence the question is not , as the Company puts it, whether Tinsley would
be protected if he made the remark to Russell on the street. Tinsley might well be
protected if, while on the street conversing with Gordon about a union matter, he
reflected on Russell's behavior or intelligence in this manner, and Russell, passing
by, overheard him. It would seem to be of the essence of protected union activity
for employees in the course of such activity to comment to one another on the char-
acter or capacity of their employer. The protected character of the utterance would
not seem to depend upon whether the comment was overheard by the employer. Cf.
Cusano d,/b/a American Shuffleboard Co. v. N.L.R.B., 190 F. 2d 898 (C.A. 3),
dealing with the protected character of an employee's false statements concerning his
employer, where the statements were made at a union meeting. In short, the Com-
pany's argument as to the time and place of the utterance falls because I regard the
utterance as part of the res gestae of the conference, and because even if it was not,
the comments of one union man to another concerning a union matter and the em-
ployer's attitude thereon are normally protected even if not made in the course of a
conference or formal meeting.
The Company's second contention, that the words themselves are inherently un-
protected whenever used with respect to a supervisor, likewise falls. The Company
persists in treating the matter as if Tinsley had addressed the appellation to Russell,
whereas the actual fact is that Tinsley was communicating to Gordon in a voice
barely audible to Russell. We are not concerned here with a remark addressed to a
member of management, nor-as in Blue Bell, Bettcher and Butcher Boy-with
words addressed to, or published to, employees as a group. In polite society, Tinsley's
phrase would probably be viewed as less objectionable than Russell's obscenity which
immediately preceded it. Be that as it may, in the light of ordinary shop parlance,
I cannot regard Tinsley's characterization of Russell as so shocking as to forfeit the
statutory protection normally inherent in communication between employees on
union matters. Certainly it cannot be uncommon for employees in conversing with
one another on union matters to express uncomplimentary views concerning their
employer's behavior, and the phrase "horse's ass" is surely not unknown in such
context.
Finally, as noted above, the Company does not seriously contend that the phrase
was so unbecoming as to render Tinsley unfit for future employment ; it does contend,
however, that the question here is not an abstract one but depends on Russell's per-
sonal threshold of tolerance . With this I cannot agree , for if Tinsley's expression
was generally within the ambit of statutory protection , the fact that it transgressed
Russell 's threshold of tolerance (for the invective of others ) would not forfeit that
protection. The case is no different, in essence , from that of an employer who has
a reasonable rule prohibiting cessation of work without permission , and then seeks
to discharge strikers on the theory that they violate the rule. See , e.g., Time-O-Matic,
Inc. v. N.L.R.B., 264 F. 2d 96, 98, 99 , 101-102 (C.A. 7). Manifestly, if the activity
or the statement enjoys statutory protection, neither a "rule" nor a low level of
managerial tolerance of such statements can curtail the reach of the statute.
4Although I find that Russell uttered the obscenity (I credit Bloom, Gordon, and
Tinsley rather than Russell in this respect, and note Russell's admissions that he was
irritated or upset and that the obscenity was not foreign to his vocabulary), I would
reach the same result as to the statutory protection enjoyed by Tinsley even absent the
provocation inherent in Russell 's phrase.
THOR POWER TOOL COMPANY 1389
I find, in short, that Tinsley was engaging in union or concerted activity within the
protection of Section 7 at the time of his remark to Gordon, that under all the circum-
stances his unpleasant characterization of Russell, which reached Russell' s ears, was
within the area of statutory protection, and that in striking a fair balance between the
employer's interest in proper discipline and reasonable respect for supervisors on the
one hand and the statutory rights of employees on the other, the scale tips in favor
of the employee.
2. The "grievance procedure" defense
The Company, conceding that the grievance procedure set forth in the contract does
not deprive the Board of power to grant relief in this proceeding, argues that as a
matter of discretion the Board should withhold relief "on the ground that the Charg-
ing Party had invoked the grievance procedures designed to resolve the discharge
dispute and should not be permitted to invoke the [Board's] jurisdiction ... until those
grievance procedures, including arbitration, had been exhausted" (company brief,
p. 29). The Company is, of course, correct in conceding that under Section 10(a)
of the Act the Board is "empowered" to act heie; "this power shall not be affected by
any other means of adjustment or prevention that has been or may be established by
agreement, law, or otherwise." The Company is likewise correct in stating that in
appropriate cases the Board may in its discretion decline to exercise this power, and
may defer to an arbitrator's award or require the parties to pursue their contractual
procedures. The question is whether this case is one to call for such abdication of
the power expressly vested in the Board. For reasons outlined below, I conclude
that it is not.
The Company, recognizing that the Board's policy of deferring in appropriate cases
to an arbitrator's award cannot be literally invoked here as there has been no such
award, points out that in some cases , notably Montgomery Ward & Co., Incorporated,
137- NLRB 418, and Hercules Motor Corporation, 136 NLRB 1648, the Board dis-
missed complaints because the charging party failed to resort to available grievance
procedures. But in both those cases the fundamental issue concerned the interpreta-
tion or application of the contract between the charging party and the respondent
(see Montgomery Ward, 137 NLRB at 423; Hercules, 136 NLRB at 1652; see also
McDonnell Aircraft Corporation, 109 NLRB 930, 934; Crown Zellerbach Corpora-
tion, 95 NLRB 753; Raley's Inc., d/b/a Raley's Supermarkets, 143 NLRB 256), and
the Board left to the contractual machinery questions concerning interpretation of
the contract. Indeed, in Hercules the Board, like Respondent here, refers to the
provisions of Section 203(d) of the Act, which declares that "final adjustment by a
method agreed upon by the parties is . the desirable method for settlement of
grievance disputes arising over the application or interpretation of an existing
collective-bargaining agreement." But the case before us does not, as did Hercules,
Montgomery Ward, McDonnell, Crown Zellerbach, and Raley's, concern the inter-
pretation or application of the contract; it is the statute, not the contract, which must
be applied and interpreted here.
Respondent also relies on the Board's deference to ` the arbitration awards in
Spielberg Manufacturing Company, 112 NLRB 1080, and International Harvester
Company (Indianapolis Works), 138 NLRB 923, approved sub nom. Thomas D.
Ramsey v. N.L.R.B., 327 F. 2d 784 (C.A. 7). Both cases, of course, can be distin-
guished from this on the ground that final arbitrators' awards were made there,
whereas the instant case did not actually go to arbitration. Hence the Board's obser-
vations in those cases that it found the arbitration proceedings to have been fair and
regular (contrast Precision Fittings, Inc., 141 NLRB 1034) can find no counterpart
here. Harvester is further distinguishable in that it, like the cases discussed in the
preceding paragraph, turned on a construction of the contract-whether, in that case,
the employer was contractually obligated to comply with the union's discharge de-
mand . And Spielberg is further distinguishable, for the question there was whether
certain employees had engaged in serious misconduct during a strike, an issue of fact
rather than, as here, a question of statutory construction.
In short, the considerations and the cases advanced by the Company to support its
plea that the Board should, as a matter of discretion, require Tinsley to pursue the
contractual grievance machinery, are neither compelling nor persuasive. The Board
may choose to defer to arbitrators or to grievance machinery in cases involving in-
terpretation of contracts, and even in cases where the issue turns on disputed questions
of fact, but it should not so defer here, where the sole issue is whether, on the facts
advanced by the Company, the statute protected the conduct for which the employee
was discharged.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a corollary to the foregoing discussion, it should be noted that the Company
somewhat misstates the Board's position as one of deferring to arbitrators "absent
fraud or unfairness in the arbitration proceeding" (company brief, p. 29). The Board
has also made clear that it will not defer to awards which are repugnant to the statute,
even where the arbitration proceedings are not tainted. In the instant case any award
which did not restore the status quo ante by reinstating Tinsley with backpay would
result in Tinsley's having suffered a loss arising out of the episode. Inasmuch as
Tinsley's conduct in this episode was protected by Section 7 of the Act, any such loss
would be in derogation of his statutory rights and an award which resulted in such
loss would be repugnant to the statutory policy.
Finally, even the Company concedes that the Board would review an arbitrator's
award to the extent of determining the fairness of the proceeding. Under the 6-
month limitations period of Section 10(b), however, Tinsley might well have been
barred from Board processes had he waited for an arbitration hearing and decision
before filing his charge. In that event he could never have obtained the review even
the Company agrees is appropriate as to the fair conduct of the arbitration. In this
context it would seem that Respondent's real contention is that General Counsel
should have retained the charge and not issued a complaint until final processing of
Tinsley's grievance. But in the first place Tinsley's union made it clear that upon
his resort to the Board, the Union did not desire to pursue his case, and the Company
itself expressed the position to the Union that Tinsley should elect his forum, not
that he should necessarily proceed with the grievance. And, second, the Company
had ample opportunity to advise the Regional Office of the Company's views (see
General Counsel's Exhibit No. 1(b)), and as the complaint issued (a matter within
the discretion of the General Counsel and not the Board), what the Company really
seeks is a decision that the complaint was improvidently issued and the entire matter
should be stayed, pending arbitration. Certainly Tinsley should not be penalized
by final dismissal of the case merely because (in, the Company's view) General Counsel
was premature in issuing the complaint upon Tinsley's timely charge. But here
again the Company's argument encounters obstacles. The time for arbitration has
expired, the Union having let the matter drop shortly after Tinsley filed his charge.
In any event, I can see no reason why, the record having been made, the Board should
defer decision, awaiting an arbitrator's award which, if it gave Tinsley less than full
relief, would infringe his statutory rights.
III. THE REMEDY
As already indicated, I believe that a proper remedial order here can do no less
than direct Tinsley's reinstatement with backpay, to be computed in accordance with
the formulas set forth in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716. Under the circumstances I shall also recommend a
narrow cease-and-desist order, and the posting of an appropriate notice. For reasons
explicated in Melrose Processing Co., Case No. 18-CA-1661 [146 NLRB 979], I am
including the reference to the Armed Forces in the order, not in the notice.
The Company urges that backpay should be tolled because of its alleged offer to
reinstate Tinsley on September 24. In the first place, the Company's own witness
testified that no such offer was made at that meeting. The most the Company ever
offered with respect to this matter was that Tinsley could return to work but that he
would not be reimbursed for the loss of pay he suffered as the result of Russell's
action. But even this offer was indissolubly linked to the Company's demand that
Tinsley and the Union abandon the other grievances involving Tinsley which were
pending at various stages of the grievance procedure. The Union, to be sure, had
urged as part of the proposed settlement that those grievances be resolved in Tinsley's
favor. The Company, referring to this as a "whitewash," countered with a demand
that as part of the reinstatement, "disciplinary action and imposed penalties on above
grievances were to remain in the employee's record file as is and that the above griev-
ances be withdrawn from the agenda." This was not an unconditional offer of rein-
statement, but an offer conditioned upon Tinsley's abandoning his right to process
the other grievances. Of course, the Company was not obliged to yield to the converse
demand. If the Company had offered reinstatement and-either as part of the offer,
or impliedly-left the other grievances to take their natural course, I would find
merit in the claim that backpay should be tolled. But the Company conditioned the
reinstatement offer on abandonment of the other grievances, and the offer was there-
fore not unconditional.
THOR POWER TOOL COMPANY 1391
CONCLUSIONS OF LAW
1. The Company by discharging Tinsley under the circumstances described above
engaged in an unfair labor practice affecting commerce within the meaning of Sec-
tions 8(a) (1) and (3) and2(6) and (7) of the Act.
2. It will effectuate the statutory policy for the Board in this case to exercise, and
not to abdicate, its power to prevent and remedy unfair labor practices.
ORDER
Accordingly , on the foregoing findings of fact and conclusions of law, and on the
record as a whole, I recommend , pursuant to Section 10(c) of the Act, that Respond-
ent, Thor Power Tool Company, its officers , agents, successors , and assigns , shall:
1. Cease and desist from discriminating against any employee because of his ac-
tivity, as a union committeeman , in pressing or discussing grievances.
2. Take the following affirmative action necessary to effectuate the policies of the
Act
(a) Offer to reinstate Donald A. Tinsley to his former or a substantially equivalent
position , without prejudice to his seniority or other rights and privileges , and make
him whole in the manner described in the portion of the Trial Examiner 's Decision
entitled "The Remedy " for any loss of earnings suffered by reason of the discrimi-
nation against him.
(b) Notify Donald A. Tinsley if he is serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces.
(c) Preserve and, upon request , make available to the Board or its agents for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(d) Post at its plant at Aurora, Illinois, copies of the attached notice marked
"Appendix ." 5 Copies of such notice , to be furnished by the Regional Director for
Region 13 , shall, after being duly signed by an authorized representative of the Re-
spondent , be posted immediately upon receipt thereof , and be maintained by it for a
period of 60 consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered , defaced , or covered by
any other material.
(e) Notify the Regional Director for Region 13, in writing, within 20 days from
the date of the receipt of this Decision , what steps the Respondent has taken to comply
herewith.°
In the event that this Order Is adopted by the Board, the words "As ordered by"
shall be substituted for "As recommended by a Trial Examiner of" in the notice. In the
further event that the Board's Order be enforced by a decree of a United States Court
of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an
Order of" shall be inserted immediately following "As ordered by".
6In the event that this Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, In writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to-inform our employees of the`rights guaranteed them in the
National Labor Relations Act: -
WE WILL offer Donald A. Tinsley his former job and pay him for wages he
lost since September 20, 1963.
WE WILL NOT discriminate against any employee because of his activity as a
union committeeman in pressing or discussing grievances.
THOR POWER TOOL COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
0
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660,
if they have any questions concerning this notice or compliance with its provisions.
Jersey Farms Milk Service, Inc. and Amalgamated Meat Cutters
& Butcher Workmen of North America, Local 405, AFL-CIO.
Case No. 06-CA-1540. September 29, 1964
DECISION AND ORDER
On November 13, 1963, Trial Examiner George L. Powell issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 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 attached Trial Ex-
aminer's Decision. Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's Decision and briefs
in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.
We agree with the Trial Examiner, for the reasons stated in his
Decision, that Respondent violated Section 8(a) (5) and (1) of the
Act by unilaterally subcontracting the work of its transport division
on April 8, 1963, without first notifying and bargaining with the
Union. However, we do not agree with the Trial Examiner's pro-
posed remedy for the following reasons :
In fashioning our affirmative orders, we bear in mind that the
remedy should be molded to the particular situation requiring re-
dress.' Having scrutinized the record and weighed the particular
facts and circumstances surrounding this case, including cumulatively
(a) Respondent's earlier history of harmonious labor relations with
the Union; 2 (b) the absence of any apparent antiunion motivation
in the unilateral subcontracting; (c) the economic hardship both to
1 N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348.
2 Crown Zellerbach Corporation , 95 NLRB 753.
148 NLRB No. 139.