Blue Circle Cement Co.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 623 (N.L.R.B. 1993)

623
311 NLRB No. 65
BLUE CIRCLE CEMENT CO.
1 All dates are in 1991 unless stated.
2 Although in bargaining sessions on June 13 and 14 representa-
tives of the Union’s parent International expressed conditional sup-
port for the Respondent’s waste-burning plan, the Union (which was
identified in the most recent collective-bargaining agreement as ‘‘the
sole’’ bargaining agent of the employees covered by the agreement)
consistently opposed the plan when acting on its own. It manifested
its opposition in rallies and picketing of the Respondent’s plant.
Moreover, as the judge found, notwithstanding the comments by the
International representatives in those two negotiating sessions, the
Union never ‘‘entered into any agreement’’ with the Respondent
manifesting acquiescence in the Respondent’s ‘‘use of hazardous
waste as fuel.’’
3 In connection with one such rally, held on June 3, a leaflet publi-
cizing the rally was distributed by Saunders jointly on behalf of the
Union, ECO, and other environmental groups expressly ‘‘asking citi-
zens to join us in a demonstration in solidarity with workers and
residents threatened by hazardous waste burning.’’
4 As the judge found, on one occasion the Respondent gave Saun-
ders a large chart entitled ‘‘Toxic and Hazardous Chemicals in In-
dustry.’’
5 At the time of these activities, the Union was also attempting to
achieve a successor bargaining agreement with the Respondent. Its
rallies and picketing combined the hazardous waste issue with con-
tractual economic issues.
6 As the judge found, Saunders had been concerned that heavy
metals in hazardous waste would be released by the Respondent’s
burning of hazardous waste. Saunders photocopied five copies of a
7-page section of the publication.
Blue Circle Cement Company, Inc. and United Ce-
ment, Lime, Gypsum & Allied Workers Divi-
sion, International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forg-
ers and Helpers, AFL–CIO and its Local D421.
Case 17–CA–15775
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 23, 1992, Administrative Law Judge
Stephen J. Gross issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
Charging Parties filed cross-exceptions and a brief in
support thereof and in opposition to the Respondent’s
exceptions, and the Respondent filed a brief in reply
to the cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision in light of
the exceptions, cross-exceptions, and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
The judge found that the Respondent violated Sec-
tion 8(a)(1) by suspending and discharging employee
Stephen Saunders. The Respondent has excepted, con-
tending, inter alia, that the conduct for which Saunders
was discharged—namely his use of a Respondent-
owned photocopier to reproduce certain documents re-
lated to hazardous waste—was not protected concerted
activity within the meaning of Section 7 of the Act.
For the reasons set out below, we agree with the judge
that it was.
A. Summary of Credited or Undisputed Evidence
Related to the Finding of Protected
Concerted Activity
The evidence shows that early in 19911 officers of
Local D421 (the Union), the recognized bargaining
representative, became aware that the Respondent, a
cement manufacturer, was making plans to burn haz-
ardous waste as a fuel to heat its cement kilns. The
Union decided to actively oppose the Respondent’s
plans because of health and safety concerns.2 To that
end, Union President Robert Joe Thompson appointed
Saunders as the Union’s environmental officer and
spokesperson to lead the fight against the Respondent’s
plan. According to Thompson, the Union wanted to
enlist community support for its position. Thompson
testified that the Union selected Saunders because of
his background, interest, and ‘‘contacts’’ pertaining to
environmental issues. More particularly, Saunders was
a founder and member of a nonprofit volunteer local
environmental organization called Earth Concerns of
Oklahoma (ECO). Like the Union, ECO opposed the
Respondent’s plan to burn hazardous waste and Saun-
ders too was its spokesperson, as well as the Union’s.
Indeed, as the judge found, Saunders essentially was
‘‘wearing two hats’’ when opposing the Respondent’s
plan.
Saunders’ activities in opposition to the Respond-
ent’s plan were numerous and took on a variety of
forms. He solicited ideas from other unit employees
and discussed the issue at union meetings. He orga-
nized community opposition and organized rallies near
the Respondent’s plant that were attended by employ-
ees and nearby residents.3 He discussed the Respond-
ent’s plan with local media covering the rallies. He
discussed the issue informally with the Respondent’s
plant operations manager, Douglas Pardee, on frequent
occasions. He researched the burning of hazardous
wastes at other cement plants and the nature of haz-
ardous materials.4 And he participated in ongoing
union picketing outside the Respondent’s plant that
commenced in March and continued long thereafter.5
On July 27, Pardee observed Saunders using the Re-
spondent’s photocopier during worktime. On closer in-
spection, Pardee saw that Saunders was photocopying
from a publication on ‘‘sham recycling’’ produced by
the environmental organization Greenpeace on the
topic of toxicological properties of heavy metals.6
Pardee testified that when he confronted Saunders at
the photocopier he told Saunders that ‘‘this must be
the biggest joke for ECO that you can sit here and
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The judge did not credit the portion of Saunders’ testimony that
the photocopies were for the use of the Union’s officers.
8 As the judge found, the record shows that the Respondent rou-
tinely permitted employees to use its photocopiers during worktime
to copy a variety of nonwork-related materials. It is evident, there-
fore, that the Respondent’s discipline of Saunders for using the pho-
tocopier during working time to photocopy materials pertaining to
hazardous wastes, while permitting others to use the photocopiers
with impunity, amounted to disparate treatment.
9 Our dissenting colleague contends that Mike Yurosek & Son, Inc.,
306 NLRB 1037 (1992), relied on by the judge, is inapposite be-
cause that case concerned whether the action of individual employ-
ees was concerted while the instant case, according to our colleague,
‘‘presents a fundamentally different question’’ of whether Saunders’
photocopying was protected. The judge cited Mike Yurosek for the
proposition that Saunders’ photocopying was a logical outgrowth of
earlier concerted activities that were also protected. The instant case
plainly concerns whether Saunders’ photocopying was concerted
(sufficiently related to group action) and protected (sufficiently re-
lated to mutual aid or protection). The judge’s citation to Mike
Yurosek was thus pertinent.
copy their materials on my machine and distribute it
against us.’’
Pardee suspended Saunders on July 27 and, on Au-
gust 5, Pardee discharged Saunders. Consistent with
Pardee’s initial reaction that Saunders intended to dis-
tribute the photocopied materials in opposition to the
Respondent’s plan to burn hazardous waste, Pardee’s
discharge letter to Saunders stated that the Respondent
‘‘cannot condone an employee working against the
Company’s legitimate business interests’’ by using its
equipment and materials on paid time.
B. Discussion
It is essentially undisputed that the Respondent’s
discipline of Saunders was attributable to Saunders’
use of the photocopier, on paid time, to reproduce ma-
terials for distribution in opposition to the Respond-
ent’s plan to burn hazardous waste. The Respondent
argues, however, that this activity was entirely per-
sonal and not in any way connected with the Union,
and thus falls outside the scope of Section 7. We dis-
agree because, as the judge found, the actions in ques-
tion were a logical outgrowth of the multiple efforts of
Saunders and the Union to oppose the Respondent’s
plan to burn hazardous waste.
The Union’s strategic efforts were broad in scope
and encompassed enlisting support from the local com-
munity, including ECO and other environmental
groups, to oppose the Respondent’s plan. Further,
Saunders’ duties and activities in opposing the plan, as
spokesperson for both the Union and ECO, were inti-
mately connected to, and derived from, the Union’s
broad-based strategic efforts. As a practical matter,
therefore, Saunders’ efforts on behalf of the Union and
on behalf of ECO, in opposing the Respondent’s plan,
were virtually inseparable.
In these circumstances, it is immaterial that the
photocopied materials pertaining to toxicological prop-
erties were intended, as the judge found, for persons
having no ‘‘direct connection’’ with the Respondent,
i.e., for ECO, and not for officers of the Union.7 Saun-
ders’ photocopying of materials for distribution to oth-
ers opposed to the Respondent’s plan, and who pre-
viously had joined efforts with the Union in this en-
deavor, was simply one of the myriad activities that
Saunders undertook for the purpose of achieving the
Union’s goal, the employees’ goal, Saunders’ personal
goal, and ECO’s goal—to oppose and to stop the Re-
spondent’s plan to burn hazardous waste. Put another
way, Saunders’ photocopying was yet another form of
concerted activity undertaken for the purpose of pro-
tecting the health and safety of those affected by the
Respondent’s plan, including, of course, the health and
safety of his fellow bargaining unit employees most di-
rectly affected by the plan. Further, the Respondent
was well aware of Saunders’ activist role in these en-
deavors, including his role as union environmental of-
ficer and spokesperson and, indeed, it specifically dis-
charged him for ‘‘working against’’ the Respondent’s
interests.8
Our dissenting colleague contends that the record
fails to demonstrate a sufficient factual nexus between
(1) Saunders’ photocopying for ECO in opposition to
the Respondent’s plan and (2) Saunders’ numerous
protected concerted and union activities in opposition
to the Respondent’s plan during the months and weeks
preceding the photocopying. Yet, our dissenting col-
league concedes that ‘‘the Union and ECO were ac-
tively linked in their public opposition to the Respond-
ent’s plan’’; he acknowledges that Saunders took on a
‘‘duality of roles’’ both as an ECO spokesperson and
as a union officer; and, he does not take issue with the
general proposition that Saunders essentially was
‘‘wearing two hats’’ in these dual roles. Nevertheless,
with respect to the photocopying incident, he draws a
bright line distinction between Saunders’ myriad roles
on behalf of ECO, the Union, and the employees, and
finds essentially that as to this incident Saunders’ ac-
tivity was purely personal, was unrelated to mutual aid
or protection; and insufficiently related to Saunders’
numerous previous protected concerted activities in op-
position to the Respondent’s plan. Our dissenting col-
league does not explain why Saunders’ numerous pro-
tected concerted activities abruptly become purely per-
sonal in character and unrelated to mutual aid or pro-
tection in this incident. More specifically, the dissent
makes no attempt to explain why Saunders’
photocopying of environmental materials for ECO—
materials clearly pertinent to the Respondent’s plan to
burn hazardous waste—was anything other than a con-
tinuation of Saunders’ previous protected concerted ac-
tivities undertaken pursuant to, in the words of our dis-
senting colleague, Saunders’ ‘‘duality of roles.’’9 Ac-
625BLUE CIRCLE CEMENT CO.
10 The Respondent contends that even if Saunders’ discharge vio-
lated the Act, a remedy of reinstatement and backpay is inappro-
priate because he engaged in flagrant misconduct when he used the
Respondent’s postage meter in the amount of $2.30 to send a pack-
age on July 27 and because his version of the events of that day
was not credited by the judge. We find no merit to the Respondent’s
contention. It is undisputed that the Respondent was well aware of
Saunders’ conduct with respect to the package prior to his discharge;
yet the Respondent does not contend that this was a reason for the
discharge. Indeed, the Respondent does not take issue with the
judge’s statement that it ‘‘agreed’’ that ‘‘Saunders would not have
been fired had he not used Blue Circle’s photocopier to copy pages
from the ‘sham recycling’ publication.’’ Because the evidence shows
that the postage meter incident would not itself have caused the Re-
spondent to discharge Saunders, the Respondent cannot now rely on
it as a basis for denying backpay and reinstatement. Western Stress,
Inc., 290 NLRB 678 fn. 3 (1988). Further, although the judge found
that the Respondent’s version of the events of July 27 was more
credible than Saunders’ version, the judge did not find Saunders to
be an untrustworthy witness generally so as to amount to a malicious
abuse of the Board’s processes sufficient to deny the Board’s usual
remedies. Owens Illinois, 290 NLRB 1193, 1194 (1988).
1 In the day or two following his suspension of Saunders, Pardee
prepared a memorandum for file summarizing this incident. The
memorandum is not in evidence, but Pardee testified about it and
read from it at the instant hearing. The memorandum does not say
that Pardee referred to ECO during his confrontation with Saunders.
According to the memorandum, as read into the record by Pardee,
when Pardee discovered Saunders copying the article he told him
‘‘[T]his must be a big joke for you and your people that you are
doing this work on our equipment with our supplies on our time.’’
When the judge pointed out to Pardee that he had used the term
ECO in his earlier testimony about this confrontation, Pardee replied
that his memorandum was ‘‘probably more accurate.’’
2 According to Pardee, Saunders told him ‘‘I’ve had permission
from all the office managers to make personal copies.’’ According
to Saunders, he told Pardee ‘‘I’d used the—as everybody else had
and continues to use the photocopier for personal business on a daily
basis.’’
cordingly, we find that the Respondent’s discipline of
Saunders violated Section 8(a)(1) of the Act.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Blue Circle Cement Com-
pany, Inc., Tulsa, Oklahoma, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
MEMBER OVIATT, dissenting.
Contrary to my colleagues, I find that the Respond-
ent did not violate Section 8(a)(1) of the Act by sus-
pending and then discharging employee Stephen Saun-
ders for unauthorized use of the Respondent’s copying
machine. More specifically, I find that the General
Counsel has failed to establish a sufficient nexus be-
tween (1) Saunders’ use of the copying machine to
copy a magazine article about sham recycling and the
toxicological properties of heavy metals and (2) his ac-
tivities in support of the Union’s opposition to the Re-
spondent’s plan to burn hazardous waste as fuel in the
Respondent’s cement manufacturing process. Thus, I
find that Saunders’ use of the copying machine to copy
the article in question was not activity protected under
Section 7 of the Act, and that his suspension and dis-
charge for using the machine to copy the article were
therefore not in violation of Section 8(a)(1).
1. Background
My colleagues have capably set out the material
facts. As seen, at the time of the events in question,
Saunders was an active member of and a spokesman
for Earth Concerns of Oklahoma (ECO), a private en-
vironmental protection group. ECO was concerned
about the potentially damaging effect that the Re-
spondent’s planned burning of hazardous waste in the
production process might have on the environment.
ECO was also concerned about what it perceived to be
shortcomings in governmental regulation of industrial
burning of hazardous waste in cement kilns. Thus,
ECO was strongly opposed to the Respondent’s plan to
burn hazardous waste in the production process, at
least under current Federal Environmental Protection
Agency (EPA) regulations.
Saunders was also the Union’s environmental offi-
cer. The Union was concerned about the potentially
damaging effect that burning hazardous waste in the
production process might have on the health of the em-
ployees. Thus, the Union was also opposed to the Re-
spondent’s plan. As environmental officer, Saunders
was appointed by the union president to lead the
Union’s opposition to the Respondent’s plan.
2. Evidence of relationship of copying to
union activity
According to Plant Operations Manager Pardee,
when he discovered Saunders copying the article, he
angrily suggested to Saunders that it ‘‘must be the big-
gest joke for ECO that you can sit here and copy their
materials on my machine and distribute it against us.’’1
Saunders made no reply. But more to the point, he did
not claim that he was copying the article for the Union
or that he was engaged in union business.
When Pardee was in the process of suspending
Saunders about an hour later, for unauthorized use of
the copier to copy documents that ‘‘weren’t of a com-
pany nature’’ (quoting Pardee’s testimony about what
he said to Saunders at that time), Saunders simply
claimed that he had permission from all office man-
agers to make ‘‘personal copies.’’2 More to the point,
Saunders again did not claim to have been engaged in
union business.
Shortly after Pardee suspended Saunders, he dis-
cussed this matter, in separate conversations, with
Union Grievance Committee Chairman Nick Adams
and Union President Bobby Thompson. Neither one
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 According to Pardee, Saunders told him, ‘‘[Y]ou’re discharging
me for photocopying, you know, everybody else does it. It’s per-
sonal copies, everybody else does it.’’ According to Saunders, he
told Pardee that ‘‘everybody did it,’’ that he had permission to use
the copier, that it was clear to him that he was not being discharged
for using the copier but because of his ‘‘outspokenness on the haz-
ardous waste issues as affecting the employees at the plant,’’ and
that Pardee was taking the matter too personally.
4 Mike Yurosek & Son, Inc., 306 NLRB 1037 (1992), relied on by
the judge for this ‘‘logical outgrowth’’ finding, is inapposite to the
instant circumstances, and my colleagues have not convinced me that
the judge was correct in applying an expanded holding from that
case. The key question in that case was whether the General Counsel
had made a prima facie showing that four employees who individ-
ually and separately refused an order to work overtime were never-
theless engaged in concerted activity in doing so. In finding that they
were, the Board majority found that the separate refusals were a
‘‘logical outgrowth’’ of the employee’s earlier concerted protest
against the employer’s earlier decision to reduce their normal work
hours. The Board stated:
We will find that individual action is concerted where the evi-
dence supports a finding that the concerns expressed by the indi-
vidual are [a] logical outgrowth of the concerns expressed by the
group. [Citations omitted.] Here, the employees’ individual re-
sponses to [the] request that they work overtime . . . logically
relate to their concerted protest over [the] reduction in their
schedule only a few weeks earlier. [Id. at 1038–1039.]
The instant case, of course, presents a fundamentally different
question: whether the General Counsel has established by a prepon-
derance of the evidence that Saunders’ copying of the article in
question was protected activity, on the grounds that it was done on
behalf of the Union. Moreover, the record in Mike Yurosek estab-
lished the earlier concerted activity of the four employees, out of
which their subsequent separate activity logically grew. But there is
no such evidentiary predicate for finding in the instant case that
Saunders’ copying of the article on the Respondent’s machine was
the ‘‘logical outgrowth’’ of some prior action taken by the Union.
said anything about Saunders purportedly having been
engaged in union activity when he was copying the ar-
ticle.
During Saunders’ discharge interview a few days
later, he once again did not claim that he was copying
the article for the Union, or that he was engaged in
union business. His only defense was that everyone
else used the copier to make personal copies.3 More-
over, neither Adams nor Thompson, both of whom
were also present at Saunders’ discharge interview,
claimed that Saunders was making the copies of the ar-
ticle for the Union, or that he was engaged in union
business.
Finally, Saunders grieved his discharge. His griev-
ance says nothing about his purportedly having been
engaged in union activity while copying the article.
Eventually, however, at the instant hearing into this
matter, Saunders finally claimed that he was copying
the article to give to union officers—and the judge
flatly discredited him.
3. Discussion and conclusion
There is an obvious absence of evidence to support
a finding that Saunders was engaged in union activity
when he copied the article opposed to the burning of
hazardous waste in the production process. Neverthe-
less, the judge, affirmed by my colleagues, make just
such a finding anyway. They arrive at this finding via
the following path: (1) the article in question was op-
posed to the burning of hazardous waste in production
processes; (2) ECO and the Union were opposed to the
burning of hazardous waste, and were attempting to
prevent the Respondent from doing so, in part at least
because of their concern about the effect of the result-
ing emissions on the health of the Respondent’s em-
ployees; (3) Saunders’ particular ECO and union ac-
tivities were aimed at preventing the Respondent from
burning hazardous waste in its production process; (4)
therefore, when Saunders was copying the article op-
posed to the burning of hazardous waste, he was acting
on behalf of the Union, in furtherance of its opposition
to the burning of hazardous waste, which opposition
was itself bottomed on its concern over the conditions
of the employees’ employment.
My colleagues arrive at their result even though at
the time that the events in question were actually tak-
ing place, no one—not Saunders, nor Adams, nor
Thompson—claimed that Saunders was copying the ar-
ticle for the Union, and even though the judge indeed
flatly discredited Saunders’ belated testimonial claim
at the hearing that he was copying the article for the
Union.
I simply cannot agree with my colleagues’ findings
that Saunders’ overall efforts on behalf of the Union
and on behalf of ECO, in opposing the Respondent’s
plan to burn hazardous waste in its production process,
were ‘‘virtually inseparable,’’ and that his copying of
the article opposing the burning of hazardous waste in
the production process was ‘‘a logical outgrowth’’ of
the Union’s opposition to the Respondent’s plan to
burn such waste.4
My colleagues’ analysis has a nice ring to it. And
there might in fact be a sufficient nexus between (1)
Saunders’ use of the copying machine to copy a maga-
zine article about sham recycling and the toxicological
properties of heavy metals and (2) his activities in sup-
port of the Union’s opposition to the Respondent’s
plan to burn hazardous waste as fuel in the Respond-
ent’s cement manufacturing process. But the prob-
lem—for me, at least—is that the existence of such a
nexus is not established by a preponderance of the
record evidence.
Clearly, Saunders was an active opponent of the Re-
spondent’s plan as an ECO spokesman at the same
time that he was an active opponent of the plan as a
union officer. But it does not necessarily follow from
that duality of roles and simultaneity of situations that
all—or, for that matter, any—of Saunders’ actions
taken in furtherance of ECO’s opposition to the Re-
spondent’s plan were ipso facto also actions taken in
furtherance of the Union’s opposition to the plan. The
627BLUE CIRCLE CEMENT CO.
5 Contrary to my colleagues’ assertion, therefore, and as evident
from my preceding analysis, I have not affirmatively found that
Saunders’ copying of the article was ‘‘purely personal,’’ or that it
was in fact not protected. Rather, I have found that the General
Counsel has not proved that it was protected. The mere fact that the
Union and ECO were actively linked in their public opposition to
the Respondent’s plan does not, in my view, satisfy the General
Counsel’s burden of proving that Saunders was engaged in union ac-
tivity when he used the Respondent’s copier to copy the article in
question. And this is particularly so where, as here, neither the
Union nor Saunders himself claimed at the time that Saunders was
engaged in union activity, and the judge ultimately found that Saun-
ders did not copy the article for the Union.
Nevertheless, my colleagues chide me for not ‘‘explain[ing]’’ why
Saunders’ photocopying of environmental materials for ECO was not
just a continuation of his previous protected concerted activities un-
dertaken in his dual role as ECO spokesman and union environ-
mental officer. Thus, my colleagues would seemingly shift the bur-
den of proof to me, to prove that Saunders was not in fact engaged
in protected activity when he copied the article. But I prefer to leave
the burden of proof on this question right where it belongs, with the
General Counsel, to prove that Saunders was engaged in protected
activity when he copied the article.
6 One final note, a clarifying one. My colleagues assert at the end
of their opinion that the Respondent discharged Saunders ‘‘for
‘working against’ the Respondent’s interests.’’ Not exactly. Oper-
ations Manager Pardee’s letter discharging Saunders states, in perti-
nent part:
While I have stated in the past that employees’ opinions and
what they do on their own personal time is their own business,
the Company cannot condone an employee working against the
Company’s legitimate business interests while he is being paid
by the Company and while he is using Company equipment and
materials.
1 The complaint makes no allegations about what union represents
Blue Circle’s employees, and on brief the Boilermakers International
and Local D421 seem to contend that they jointly represent the
Company’s unit employees. But the most recent collective-bar-
gaining agreement specifies that Local D421 ‘‘is the sole collective
bargaining agency for the employees covered’’ by the agreement.
General Counsel needed affirmatively to prove this
nexus in order to establish the alleged violation. I sim-
ply find that he has not done so.5
In sum, I find, contrary to my colleagues, that Saun-
ders’ copying of the magazine article was not shown
by a preponderance of the evidence to have been done
in furtherance of the Union’s opposition to the Re-
spondent’s plan, and was thus not activity protected
under Section 7 of the Act.6 Accordingly, I would dis-
miss the complaint.
Frank Molenda, Esq., for the General Counsel.
John W. Powers, Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of Chicago, Illinois, for the Respondent.
Michael J. Stapp, Esq. (Blake & Uhlig), of Kansas City,
Kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEPHEN J. GROSS, Administrative Law Judge. The Re-
spondent, Blue Circle Cement Company, Inc., suspended and
then fired employee Stephen Saunders. At issue in this pro-
ceeding is whether Blue Circle did that because of Saunders’
concerted protected activities, in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act (the Act).
The United Cement, Lime, Gypsum & Allied Workers Di-
vision, International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL–CIO (the
Boilermakers International) and its Local D421 filed the
charge in this matter on August 21, 1991. (All the events dis-
cussed in this decision occurred in 1991, unless otherwise
specified.) The complaint issued on October 24. Blue Circle
has admitted the jurisdictional allegations of the complaint,
including the allegations that it is an employer engaged in
commerce and that the Boilermakers International and Local
D421 are labor organizations. But Blue Circle denies vio-
lating the Act in any respect.
The case went to hearing in Tulsa, Oklahoma, on March
9–11, 1992. The General Counsel, the Boilermakers Inter-
national and Local D421 (jointly), and Blue Circle have filed
briefs.
I.
Parts II and III of this decision trace the relevant events
in chronological order. But some background information is
necessary to provide the context in which to consider those
events.
Union-Management Relations
Local D421 (sometimes referred to as the Union) rep-
resents the bargaining unit employees at the Blue Circle
plant.1 The bargaining unit includes office clerical employees
as well as production and maintenance employees.
The last collective-bargaining agreement between Blue
Circle and Local D421 came to an end by its own terms on
April 30, 1990. Despite bargaining sessions before and after
that date, no follow-on agreement was reached.
In November 1990, Blue Circle unilaterally put into effect
various terms of its final offer to the Union which terms,
among other things, reduced overtime pay in certain respects
and reduced certain benefits. (The General Counsel does not
contend that the Company violated the Act in any respect by
that action.)
Many of the Company’s employees remain bitter about
that unilateral action and about Blue Circle’s failure to pro-
vide them with what they consider to be fair terms of em-
ployment.
Blue Circle’s Plan To Use ‘‘Hazardous Waste’’
Blue Circle is a large corporation with facilities in many
States. The only facility of concern to us here is Blue Cir-
cle’s cement manufacturing plant in Tulsa. (When I refer to
‘‘Blue Circle,’’ without further description, I will be refer-
ring only to the Tulsa facility.)
Cement is manufactured in huge kilns. Blue Circle uses
coal to heat its kiln—about 100,000 tons of coal per year.
That brings us to ‘‘hazardous waste.’’ The hazardous
waste of interest to us are solvents that burn readily, pro-
ducing heat as they burn—that is, hazardous waste that can
be used as fuel. Such solvents do not start out as hazardous
waste. But once they have been used in industrial processes
(as, for instance, in cleaning aircraft), they pick up impuri-
ties. The impurities are what turn them into hazardous waste.
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Boilermakers International and Local D421 argue that inci-
dent shows Pardee’s hostility toward Saunders for his role in the
Union’s opposition to Blue Circle’s burning of hazardous waste. I
do not agree. Pardee naturally was upset about a television report
that inaccurately described Blue Circle’s plan to burn hazardous
waste. Since it was no secret that, among the Blue Circle employees,
Saunders was the most likely to provide information to the media
about the burning of hazardous waste, it was not inappropriate for
Pardee to raise the matter with Saunders. And Pardee’s apology indi-
cates that whatever hostility Pardee did feel toward Saunders as a
result of the television report dissipated following the Pardee/-
Saunders conversation on the subject.
3 Thompson was not wholly clear about who the ‘‘we’’ was when
he testified that ‘‘we didn’t want it.’’ But given Thompson’s position
Hazardous waste, in turn, may be disposed of only in accord-
ance with regulations issued by the U.S. Environmental Pro-
tection Agency (the EPA) and, sometimes, by state agencies.
EPA rules permit disposal of hazardous waste by burning
in cement kilns. Obviously the burning of hazardous waste
presents problems that the burning of coal does not. On the
other hand, cement companies have to pay for the coal they
use. But with hazardous waste, in contrast, companies with
hazardous waste to dispose of will pay cement companies to
take the hazardous waste off their hands. As a result a num-
ber of cement manufacturing plants in the United States burn
hazardous waste (along with coal or the like) as fuel for their
kilns.
Sometime in 1990 or early 1991, Blue Circle determined
that burning hazardous waste as a fuel for its kiln would be
to its advantage. In 1991, Blue Circle began the process of
obtaining the necessary EPA permit.
Stephen Saunders’ Environmental Concerns
Saunders—the alleged discriminatee—is an ardent environ-
mentalist. That is, one of the concerns around which his life
is focused is keeping the environment of our planet from get-
ting any more mucked up than he believes it already is. His
concern for environmental matters began at least several
years before the events at issue in this proceeding.
One of the ways that Saunders has expressed that concern
has been by helping to create and operate a nonprofit, volun-
teer-run organization called Earth Concerns of Oklahoma
(ECO). It is ECO’s position that the EPA regulations gov-
erning the burning of hazardous waste in cement kilns are
too lax. Accordingly, it is ECO’s objective to prevent Blue
Circle from burning hazardous waste unless and until the
EPA substantially tightens up those regulations (or until
Oklahoma adopts stringent regulations of its own).
Saunders identifies himself closely with ECO.
Saunders’ Employment at Blue Circle; his
Conversations with the Plant Manager About
Environmental Matters
Saunders began working for Blue Circle in 1981 as a pro-
duction employee. But he injured his back (at the plant) and
switched to a clerk-typist position in the plant’s office. Saun-
ders did not hold any union office until early 1991 when, be-
cause of the Union’s concerns about the Company’s plan to
burn hazardous waste and because of Saunders’ interest in
environmental matters, Saunders was appointed the Union’s
environmental officer.
Douglas Pardee is the Tulsa plant’s operations manager,
first arriving at that facility in January 1991. He had pre-
viously held a variety of technical and management positions
with various members of the Blue Circle family of compa-
nies.
Pardee and Saunders encountered one another frequently
in the plant’s office. That led to a running argument between
them about environmental matters including, of course, the
burning of hazardous waste in cement kilns. Pardee is not
one to voice disagreement in carefully modulated tones. And
Saunders willingly voiced his strong feelings about environ-
mental issues. So the Pardee/Saunders arguments tended to
be noisy. Despite the noisiness, and despite the difference in
their positions in Blue Circle’s hierarchy, Pardee was not
mean-spirited about Saunders’ environmental sympathies.
Thus on one occasion he proposed to Saunders that they
agree to disagree about environmental issues. Another time
Pardee railed at Saunders for having given false information
about the burning of hazardous waste in cement kilns to a
reporter, which information then showed up in a television
report. But when Saunders said that he was not the source
of that information, Pardee apologized.2 And when the
plant’s chief chemist, Frank Slosar, proposed giving Saun-
ders a large chart on ‘‘toxic and hazardous chemicals in in-
dustry’’ (including the chemicals in the hazardous waste that
Blue Circle wanted to use as fuel), Pardee agreed.
It is clear, however, that Pardee considered Saunders’ po-
sition about the dangers of using hazardous waste as fuel in
cement kilns to be utterly wrong.
Blue Circle’s Policy Regarding Employee use of its
Photocopying Machine
As will be discussed below, Saunders would not have been
fired had he not used Blue Circle’s photocopying machine
for purposes that Pardee considered improper. That nec-
essarily raises the issue of Blue Circle’s policies regarding
employee use of the Company’s photocopier.
Employees are allowed to use Blue Circle’s photocopiers
to make copies of documents that have nothing whatever to
do with Blue Circle’s business and to do so during their
working time. In theory employees are supposed to pay for
the copies, and some employees do do so. But many employ-
ees make copies without reimbursing the Company. For ex-
ample, employees who coach little league teams have used
the Company’s copier to make numerous copies of their
teams’ schedules and, without complaint from Blue Circle,
have not paid for such use. Other employees have made cop-
ies of fliers for church-sponsored events, of antiabortion
handouts, of contracts covering the rental of property they
own, of newspaper articles that happened to interest them,
and so on. Local D421 officials even use the Company’s
copier from time to time for union purposes, generally, but
not always, paying for that use.
II.
I turn now to a brief chronology of events leading to Blue
Circle’s suspending and then firing Saunders.
In January or February 1991, the officers of Local D421
learned of Blue Circle’s plan to use hazardous waste as fuel
for the plant’s kiln. As Bobby Thompson, the president of
Local D421, credibly testified, he and other union officials
jointly concluded that ‘‘we didn’t want it.’’3 A significant
629BLUE CIRCLE CEMENT CO.
(local union president) and the nature of his testimony, he almost
surely was referring to other union officers; if he was not, then he
had to be referring to other members of the local, generally.
4 Blue Circle seems to contend that because the Saunders and his
union opposed the Company’s use of hazardous waste as fuel wheth-
er or not the Company complied with EPA regulations, their opposi-
tion ought to be deemed unprotected. Br. at 26, fn. 16. But I know
of no rule that requires employees to refrain from urging their em-
ployer to adopt standards more rigorous than those required by the
EPA.
5 In the course of the meeting Pardee pointed out that Blue Circle
had not yet applied for a permit to use hazardous waste as fuel and
that the union officers had better ‘‘be careful’’ about what they said
during the rally. On brief, Local D421 and the Boilermakers Inter-
national contend that Pardee was thereby displaying his union ani-
mus. I do not find that to be the case.
reason for that conclusion was the union officials’ concern
that the burning by Blue Circle of hazardous waste would
have a deleterious impact on the health of Blue Circle’s em-
ployees. Thompson decided that the Union should actively
oppose the Company’s plan to use hazardous waste. (I make
no finding about whether Blue Circle’s burning of hazardous
waste would in fact be harmful to the Company’s employees.
But surely, the Union’s concern was not an unreasonable
one.)4
Thompson’s first actions in that direction included telling
Saunders about the Company’s plan and appointing Saunders
to lead the fight against the Company’s plan as the Union’s
‘‘environmental officer’’ (as touched on in pt. I). Blue Cir-
cle’s management was not advised of Saunders’ appointment.
Saunders quickly concluded that Blue Circle’s use of haz-
ardous waste would result in the kiln’s emission of arsenic,
lead, and other hazardous chemicals into the air, and that
that, in turn, would, over a period of time, cause health prob-
lems for anyone exposed to that air. Saunders accordingly
went into action in opposition to the Company’s hazardous
waste plan, doing so both as the Union’s environmental offi-
cer and as a member of and a spokesman for ECO.
As for ECO, the record is unclear whether that organiza-
tion had previously determined to oppose the use of haz-
ardous waste by cement companies or whether it was the
news of Blue Circle’s plan that generated that determination.
In any case (as also touched on in pt. I), ECO adopted a pol-
icy of being ‘‘totally opposed to the burning of hazardous
waste at the Tulsa plant’’ (in Saunders’ words).
Saunders’ initial response to Blue Circle’s plan included:
1. Research about hazardous waste burning by cement
plants. One of Saunders’ main research sources was a publi-
cation of the environmental organization Greenpeace about
what the publication called the ‘‘sham’’ recycling of haz-
ardous waste by cement plants.
2. Finding out how Blue Circle’s employees felt about the
Company’s plan to use hazardous waste as fuel.
3. At every union meeting beginning in January 1991, dis-
cussing his views about the dangers stemming from the burn-
ing of hazardous waste.
4. Organizing opposition to the Company’s plan among
the residents of communities near the plant.
Keep in mind that as Saunders fought to prevent Blue Cir-
cle from effectuating its plan to burn hazardous waste, he
was fulfilling two different roles. Saunders was wearing two
hats, as it were. One hat was that of Local D421’s environ-
mental officer. The other was that of an ECO activist and
spokesman.
Saunders and the other officers of the Union decided to or-
ganize a rally near the plant to publicize Blue Circle’s plan
to burn hazardous waste, on the one hand, and the Union’s
contract dispute with the Company, on the other. The rally
took place during the afternoon of March 8. Several of the
officers of the Union had scheduled a meeting with Pardee,
for other purposes, just prior to the rally. During that meeting
the rally was discussed, with the union officials telling
Pardee that the Union was ‘‘totally against’’ Blue Circle’s
plan to burn hazardous waste.5
The rally was attended by a number of Blue Circle em-
ployees, by members of their families, by residents of com-
munities located near the plant, and by newspaper and tele-
vision reporters.
In participating in the rally, it is probable that Blue Cir-
cle’s employees by and large considered the usual economic
issues, such as wages, health insurance payments, overtime,
and pensions, to be more important than whether or not the
Company used hazardous waste as fuel. And there is no
doubt that the employees and the Union viewed opposing the
Company’s hazardous waste plan as a way to put pressure
on the Blue Circle to increase wages and the like and as a
way to attract the public’s attention to the employees’ eco-
nomic grievances.
On the other hand, there is also no doubt that Local
D421’s position was that Blue Circle should not use haz-
ardous waste as fuel for its kiln and that the Union’s officers
and at least some Blue Circle employees were concerned
about what they perceived to be the health hazards of haz-
ardous waste burning. Thus:
1. The Union’s instructions to picketers focused on usual
matters but also specified that ‘‘We wish to inform the pub-
lic of Blue Circle’s intention to burn hazordous [sic] waste
and the possible health consequences.’’
2. The handbills that the Blue Circle employees distributed
at the rally (which handbills were drafted by Saunders) ex-
pressed concern not only about economic issues but also
about ‘‘health care needs resulting from hazardous waste
burning.’’ The handbills went on to state that—
we have suffered much economic hardship. We do not
wish to suffer in our health also. We oppose this move
to the burning of hazardous waste and will fight to pre-
vent it. We do this to protect our future health and the
health of the surrounding community.
3. Local D421’s negotiating committee chairman, Nick
Adams, when speaking to reporters at the rally, referred to
‘‘the issue of burning waste and . . . how it might affect the
worker’’ (as Adams credibly put it when testifying).
4. A picket sign carried at the rally (which sign was writ-
ten by Saunders) read: ‘‘The Union against pollution.’’
Saunders played a major role in organizing the rally. Saun-
ders encouraged residents of nearby communities to attend,
publicized the rally among the media, and, as we have seen,
drafted handbills and picket signs. But other officers of the
Union were also active. For example Thompson, as a union
officer, along with Adams, gave statements to reporters cov-
ering the rally.
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Local D421 and the Boilermakers International claim that
Pardee’s response to Saunders’ request for an excused absence
shows animus on Blue Circle’s part; that is, hostility toward Local
D421 for investigating the health and safety effects of burning haz-
ardous waste at Blue Circle. I do not find that to be the case.
7 The record does not specify whether anyone in Blue Circle’s
management read the article.
8 And again, the record does not specify whether any member of
Blue Circle’s management read the article. Blue Circle argues that
statements like this one constitute the kind of ‘‘disloyalty’’ that
As for Pardee, he was well aware of the rally, of the na-
ture of the picket signs at the rally, and of Saunders’ role
in organizing the rally. But Pardee remained unaware that
Saunders held any union office. In fact Pardee, who knew
that Saunders had been in contact with the media, thought
Saunders had done so as a spokesman for ECO rather than
for the Union. On the other hand, Pardee also knew that
Saunders supported the Union’s effort to have the rally fur-
ther the Union’s objectives concerning wages and other terms
of employment.
March 8 also marked the beginning of many months of in-
formational picketing of the Blue Circle plant before work
and during the lunch hour by some of its employees. Again,
the picket signs spoke both to traditional contract issues and
to the hazardous waste issue. Saunders was among the most
frequent members of the picket line.
A second rally was held on March 20. It was very similar
to the March 8 rally, including Saunders’ role in it.
On March 21, Blue Circle formally submitted its haz-
ardous waste proposal to the EPA.
On April 2, Local D421, by its negotiating committee, dis-
tributed a letter to ‘‘Tulsa plant employees.’’ The letter,
which had been drafted by Saunders, read:
We are concerned by Blue Circle’s intention to burn
hazardous waste at their Tulsa plant. There is strong
evidence, and too many true life examples, that haz-
ardous waste burning facilities pose a serious threat to
the health of the workforce, their families and popu-
lations of surrounding communities.
Therefore we suggest that you take a few minutes to
read the enclosed.
(The enclosure was a couple pages with information about
what gets released into the air when hazardous waste is
burned in kilns and the harmful effects of such emissions.
The pages came from the Greenpeace publication on sham
recycling.)
The next Saunders/Pardee encounter of concern to us oc-
curred at the end of May. Saunders attended a zoning hear-
ing concerning some land near the Blue Circle plant. The
zoning hearing had some connection with hazardous waste
matters, but it is not at all clear that the hearing had any con-
nection whatsoever with Blue Circle. Saunders asked that his
absence from work (in order to attend the zoning hearing) be
excused on the ground that his attendance there was union
business. Pardee, who still did not know anything about
Saunders’ appointment as union environmental officer and
who knew that Blue Circle had no interest in the zoning mat-
ter, felt that Saunders had no basis for his request and an-
grily denied it, ordering that Saunders’ absence be considered
unexcused. But it was in the course of the Saunders/Pardee
conversation about the absence that Pardee first learned that
Saunders was the local’s environmental officer.6
About the same time, a Tulsa newspaper ran an article
headlined ‘‘Plant’s Neighbors Appeal to [Oklahoma Gov-
ernor] Walters For Moratorium on Waste Burning.’’ The
piece included these two sentences:
Earth Concerns of Oklahoma’s Stephen Saunders said
the group is beginning a letter-writing campaign urging
Walters to call for a moratorium on allowing inciner-
ators in Oklahoma to burn hazardous waste until further
study is done. Saunders and a new environmental group
fear build up in the environment of the very small per-
centage of emissions that aren’t burned in the process.
What is particularly interesting about that article is that read-
ers (including, say, members of Blue Circle’s management)
might well come away believing that Saunders’ only interest
in the hazardous waste issue stemmed from Saunders’ mem-
bership in ECO.7
Another rally was held on June 3. It was much like the
two rallies in March, and again Saunders was actively in-
volved in organizing the rally and in speaking to the media
about it. A handout drafted to publicize the rally reads, in
part:
Stop Blue Circle and their plans to burn hazardous
waste! Earth Concerns of Oklahoma, National Toxics
Campaign, Citizens Action for a Safe Environment,
Concerned Area Residents for Environmental Safety,
and the Boilermakers Union, Local D421 are asking
citizens to join us in a demonstration in solidarity with
workers and residents threatened by hazardous waste
burning.
The handout goes on to discuss how Blue Circle’s burning
of hazardous waste would have detrimental effects on hu-
mans exposed to emissions from the plant.
That handout is significant for two reasons. The first is
that, once again, it puts Local D421 on record as opposing
Blue Circle’s hazardous waste plan because of the threat to
the health of ‘‘workers.’’ The second is that the handout’s
lineup of organizations opposing the burning of hazardous
waste consists almost entirely of environmental organiza-
tions, with ECO named first. Local D421 is named last.
On June 13, a newspaper called the Owasso Reporter pub-
lished an article about Blue Circle’s hazardous waste plan.
(Owasso is a community about 5 miles north of the plant.
The record suggests that emissions from the plant tend to
travel north.) While the article mentioned that ‘‘some plant
employees’’ were protesting the plan, the article suggested
that it was ECO that was leading the opposition to Blue Cir-
cle’s plan to burn hazardous waste, along with several other
environmental organizations. The article referred to Saunders:
We used to pollute out of ignorance. Now we pollute
for profit, said Stephen Saunders, ECO Member.
Again, a reader would tend to come away with the thought
that Saunders’ only connection with the fight over Blue Cir-
cle’s plan to burn hazardous waste stemmed from his mem-
bership in ECO.8
631BLUE CIRCLE CEMENT CO.
render unprotected what otherwise would be protected activity. I dis-
cuss that contention in pt. V, below. Here, I note only that the Com-
pany does not argue that this statement by Saunders to the press had
anything to do with Pardee’s decision to fire Saunders.
9 About 2-1/2 months earlier, Local D421 had sent the following
proposal to Blue Circle: ‘‘The Company will not enter into a con-
tract and/or burn hazardous waste at the Tulsa plant without first
contacting the president of the Local Lodge and negotiating on this
issue.’’
10 The fact that officials of the International conducted the bar-
gaining does not conflict with my earlier finding that Local D421
represents Blue Circle’s employees. Cf. Vermont Marble Co., 301
NLRB 103 (1991). I note, moreover, that Blue Circle agrees that
Local D421 is the representative of the Company’s employees. See
its Br. at 3–4.
11 To provide some sense of the nature of the pages Saunders cop-
ied, here are some brief excerpts:
The toxicological properties of the heavy metals identified in
the emissions and residues of waste-burning facilities are listed
below.
Aluminum—Aluminum has been implicated in Alzheimer’s
disease.
Antimony—A suspected carcinogen.
Arsenic—A human carcinogen. Possible mutagen.
Beryllium—Demonstrated carcinogenic effects in lungs of ex-
posed workers.
Cadmium—an experimental carcinogen, tumorigen.
Chromium—an experimental tumorigen and suspected car-
cinogen.
A 2-day collective-bargaining session between the Union
and Blue Circle began on June 13. At issue were various
subjects, including the Company’s hazardous waste plans.9
As noted earlier, Local D421 is the unit’s bargaining rep-
resentative. But officials of the Boilermakers International
served as spokesmen for the Union at the session. That is
significant because the position of the Boilermakers Inter-
national regarding the use of hazardous waste as fuel by ce-
ment companies differs from that of Local D421. Namely,
the International generally supports such use, subject to con-
tractual provisions regulating how such companies use haz-
ardous waste and who they employ to handle such mate-
rials.10
During the bargaining session the union negotiators, albeit
representing Local D421, espoused the position of the Boiler-
makers International. Thus, the union negotiators did not op-
pose Blue Circle’s use of hazardous waste as fuel. As one
of the union spokesmen testified:
I told the Company that we wanted to sit down and ne-
gotiate on all the jobs that [had] to do with hazardous
waste and especially we wanted to check the hazardous
waste as it came in.
The union negotiators, in fact, appeared to encourage the
Company in its efforts to obtain the permits necessary to
burn hazardous waste.
III.
Saunders’ Suspension
Pardee suspended Saunders on July 27.
A week or so earlier, Slosar (the chief chemist) had men-
tioned to Pardee that he had overheard conversations at the
plant to the effect that Saunders was using the Company’s
copying machine to make copies of materials in opposition
to Blue Circle’s plan to burn hazardous waste—fliers for use
at rallies and the like. Slosar asked Pardee what procedure
to follow if he saw Saunders doing that. Pardee responded
that in such event Saunders should be suspended and sent
home.
Pardee did not ask Slosar (or anyone else) to spy on Saun-
ders to see if Saunders could be caught in the act. On the
other hand, neither Pardee nor anyone else sought to forestall
a confrontation by telling Saunders about the rumors con-
cerning such use of the copying machine and advising Saun-
ders that Pardee did not want Saunders to use the machine
for such purposes.
Saunders was scheduled to work 7 a.m. to 3 p.m. on July
27, a Saturday. No one else was scheduled to work in the
office that day. As Saunders testified, ‘‘I’m pretty much on
my own there on Saturdays.’’ Saunders arrived at work on
schedule.
At about 8 a.m., Saunders went over to the office photo-
copier and began copying pages from the Greenpeace publi-
cation on sham recycling. Saunders copied seven pages of
the publication, making five copies of each page. (The pages
discussed the toxicological properties of heavy metals; as in-
dicated earlier, Saunders was concerned that heavy metals in
hazardous waste would be released to the atmosphere by the
burning of hazardous waste in Blue Circle’s kiln.)11 Saunders
testified that he planned to give the copies to the other offi-
cers of Local D421. For reasons I discuss in section VI, I
do not credit that testimony.
Ordinarily Pardee does not appear at the office early on
Saturday mornings. Unfortunately for Saunders, Pardee had
agreed to meet Slosar in the office that morning (on matters
unconnected with Saunders). Pardee arrived at the office and
saw Saunders at the copying machine. Given Pardee’s pre-
vious conversation with Slosar about Saunders’ use of the
copying machine, it was inevitable that Pardee would be in-
terested in what Saunders was copying.
Pardee took a look, saw that Saunders was copying from
the Greenpeace publication, jumped to the conclusion that
Saunders was making the copies for ECO, and exploded in
anger, cursing at Saunders. Then, realizing that he had lost
control of himself, Pardee left Saunders, went to his office,
and set up a meeting to consider the matter. The meeting
was held in Pardee’s office about 9 a.m. In attendance:
Pardee, Saunders, Slosar, and (as a stand-in for a union stew-
ard) employee Gary Parks.
Pardee opened by telling Saunders that he was suspended
without pay for using the company photocopier for copying
pages from a Greenpeace document that was in direct con-
flict with the Company’s interest, doing so without permis-
sion and on company time. Saunders knew very well that
Pardee was angry because of the nature of the document
being copied, not merely because Saunders was using the
copier for non-Blue Circle reasons. Nonetheless Saunders
opted for a response which ignored the difference between
copying ball game schedules, say, and copying a document
whose purpose was to prevent cement companies from using
hazardous waste as fuel. What Saunders said was that he had
longstanding permission to use the copying machine for per-
sonal purposes and that other employees routinely used the
machine for personal reasons.
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
While Saunders’ response was accurate (as far as it went),
it infuriated Pardee. The meeting ended at that point. Saun-
ders left the plant.
The Package Saunders Mailed to the Coxes
As of July 27, Saunders was in the midst of publicizing
a meeting sponsored by ECO and other environmental orga-
nizations to be held in Owasso on August 5, the purpose of
which was to continue Saunders’ effort to organize the public
against Blue Circle’s plan to burn hazardous waste. Saunders
knew two Owasso residents, Jean and Bruce Cox, and knew
that Jean Cox was worried that Blue Circle’s use of haz-
ardous waste would have a harmful impact on the health of
the residents of Owasso. Saunders wanted to send a packet
of fliers announcing that August 5 meeting to the Coxes, in
the hope that the Coxes would distribute the fliers in
Owasso. Accordingly, on arriving at the plant on July 27 (the
day of Saunders’ suspension), Saunders stuffed the fliers into
a large envelope, typed the Coxes’ address onto a Blue Cir-
cle address label, put the label on the envelope, used the
Company’s postage meter to affix $2.30 postage to the enve-
lope, and put the envelope into the Company’s rural-type
mailbox to await pickup by the Postal Service. (Saunders tes-
tified that he did not use a Blue Circle label and that he used
stamps, not a postage meter, for the postage. I discuss in sec-
tion VI why I think that testimony is contrary to the weight
of the evidence.)
On July 27, after Pardee sent Saunders home, Pardee
called Blue Circle Sales Manager Jim Benson to request that,
for that 1 day, Benson handle Saunders’ shipping clerk func-
tions. In the course of their conversation Pardee told Benson
that Saunders had been suspended for copying improper ma-
terials on the photocopying machine.
About 10:30 a.m., Benson took some mail out to the Blue
Circle mailbox. Benson noticed the large envelope that Saun-
ders had put there; it was noteworthy both because of its size
and because it was addressed to individuals, ‘‘J and B Cox’’
in Owasso, rather than to companies with which Blue Circle
would ordinarily be doing business. Benson thought that the
envelope might be significant in view of Pardee’s mention
that Saunders had been sent home for improper use of the
copying machine. So Benson took the envelope back inside.
Since Pardee had already left the office, Benson made a copy
of the face of the envelope and put the envelope back in the
mailbox.
Sometime that same Saturday Benson came across a copy
of Saunders’ flier (the one about the August 5 meeting) in
the office. (I discuss this finding in section VI, in conjunc-
tion with the discussion about Saunders’ envelope.)
On Monday, July 29, Benson showed the copy of the face
of the envelope to Pardee. Benson also showed Pardee the
flier he had found. Pardee decided that Benson’s discoveries
warranted further investigation and hired a private investi-
gator in order to find out who the Coxes were and whether
they received a package from Saunders. (The record does not
tell us what the investigator reported to Pardee other than to
indicate that the Coxes told the investigator that they had not
received any package from Saunders.)
At about 3:30 p.m. on August 5, Pardee and Saunders’ im-
mediate supervisor, Plant Administrator Hugh Simon, met
with Saunders, Local D421 President Thompson, and the
Union’s negotiating committee chairman, Nick Adams.
Pardee had by then contacted Blue Circle headquarters in At-
lanta about Saunders. During the meeting headquarters faxed
Pardee a letter Pardee could use if he chose to fire Saunders.
(As of the start of the meeting Pardee had not concluded that
Saunders should be discharged.)
It is unclear exactly what was said at the meeting or the
order in which things were said. But the discussion included
the following exchanges:
1. Pardee asked Saunders if he had used the office copier
to copy pages from the Greenpeace document. Saunders ad-
mitted that he had but went on in an aggressive tone of voice
to say that everyone used the copier for personal reasons
and, anyway, Saunders had had permission from Blue Cir-
cle’s past three administrators to use the copier for personal
reasons. That immensely irritated Pardee, whose focus was
on the subject matter of the document that Saunders copied,
not on the fact that it was for noncompany purposes. Saun-
ders went on to allege that Pardee was using the cir-
cumstance to get even with Saunders for his antihazardous
waste efforts that Saunders had been engaged in on his own
time. That irritated Pardee even more.
2. Pardee, showing Saunders a copy of the face of enve-
lope to the Coxes that Benson had found in the Company’s
mailbox, asked Saunders if he had sent it. Saunders admitted
that he had mailed a package to the Coxes but contended that
the envelope he had placed in the mailbox was hand-ad-
dressed and had stamps on it, not a postage-meter tape.
Pardee heard that as a contention by Saunders that Pardee
had torn Saunders’ envelope off the package, put the mate-
rials in a new envelope with the Blue Circle label and Blue
Circle postage, and then pretended that the envelope had
been found in the mailbox that way. Pardee took that as a
statement by Saunders that he (Pardee) was lying.
3. Thompson furiously accused Pardee of ‘‘tampering with
the U.S. mails.’’ All that Thompson meant was that Pardee
(or someone on his behalf) had taken Saunders’ package out
of the mailbox. But Pardee assumed that Thompson was sup-
porting Saunders about Pardee having repackaged Saunders’
package to the Coxes. Pardee responded angrily. Thompson
went on to attack Pardee for hiring a private investigator.
That did nothing to calm Pardee.
4. At least once in the midst of all those flared tempers,
Pardee said something about Saunders being fired for im-
properly using the photocopier for personal purposes (with-
out specifying that Pardee was concerned wholly about the
subject matter, not the fact of use for non-Blue Circle pur-
poses). Adams and Thompson responded by pointing out that
the mere use of the photocopier for non-Blue Circle purposes
was an altogether commonplace event to which the Company
had given its, at least, tacit approval.
As far as Pardee was concerned, the discussion had shown
that Saunders was absolutely unwilling to acknowledge that
there was something wrong with using the office photocopier
to make copies of materials that ECO would later use in its
attacks on Blue Circle. (Pardee remained certain that Saun-
ders had done the copying in connection with his ECO ac-
tivities.) On top of that, Pardee believed, Saunders had lied
about his package to the Coxes and, to make matters worse,
had suggested that Pardee had engaged in the grotesque
skullduggery of opening Saunders’ package, repacking it, and
then pretending that he had done neither.
633BLUE CIRCLE CEMENT CO.
As touched on earlier, at the start of the meeting Pardee
had not been clear that he was going to fire Saunders. But
at this point he was very clear that Saunders should not re-
main a Blue Circle employee.
By this time the letter that headquarters had drafted con-
cerning Saunders’ discharge had arrived at Blue Circle and
been retyped. Pardee signed the letter, then gave it to Saun-
ders to read. The letter read:
Dear Mr. Saunders:
On July 27, 1991, you were observed in the Com-
pany’s office making improper use of Company copy-
ing equipment and materials. The information you were
copying was unrelated to Company business and was,
in fact, contrary to the Company’s business interests.
While I have stated in the past that employees’ opin-
ions and what they do on their own personal time is
their own business, the Company cannot condone an
employee working against the Company’s legitimate
business interests while he is being paid by the Com-
pany and while he is using Company equipment and
materials.
Accordingly, your employment with Blue Circle is
terminated effective August 5, 1991, based on your ac-
tions of July 27, 1991. . . .
Sincerely,
Douglas D. Pardee
Operations Manager
After Saunders had left, Pardee turned to Thompson and
Adams with some final words about Saunders. According to
Thompson’s credible testimony:
Mr. Pardee told Nick [Adams] and [me] that he hated
to let Stephen go, he really didn’t want to do that. He
said that he liked Stephen. But he had talked to [plant
industrial relations manager] McCormac about putting
Stephen in another position, but due to Stephen’s dis-
abilities and his seniority, there’s no other place in the
plant that he could go. And Doug—Mr. Pardee said, ‘‘I
cannot and I will not have him back in this office.’’
IV.
The question to be addressed in this part of the decision,
and in section V, is whether the facts discussed above add
up to a violation of the Act by Blue Circle.
Did Saunders’ Activities Prior to July 27 Affect
Pardee’s Decision to Fire Saunders
Starting in March, or even earlier, Saunders was a major
force in the attack on Blue Circle’s plan to use hazardous
waste as fuel for its kiln. I will assume that if Blue Circle
would not have suspended or fired Saunders but for such ac-
tivities, then Blue Circle violated Section 8(a)(3) and (1) of
the Act. (That would plainly be the case if Blue Circle took
into account Saunders’ activities on behalf of the Union. The
issue would become more complicated if Blue Circle’s action
against Saunders had been based only on Saunders’ ECO ac-
tivities.)
That raises this question: if Saunders had not engaged in
such pre-July 27 activities, would Pardee have responded so
vehemently to Saunders’ use of the photocopier? The answer
is: the record does not tell us.
True, Blue Circle had never before fired anyone for mis-
using the photocopier. But Saunders’ use of the copier was
quite different from any other to which the record refers. It
is also true that Pardee was eager to put into effect the Com-
pany’s plan to burn hazardous waste in its kiln and that
Pardee knew that Saunders was in the forefront of the oppo-
sition to the plan. But the record gives no indication that
Pardee would consider firing an employee simply for oppos-
ing the plan. Lastly, there is no indication that Saunders’ pro-
tected activities in the period just prior to July 27 were par-
ticularly irritating to Pardee.
Under the circumstances, I conclude that the General
Counsel failed to make a prima facie showing that Saunders’
pre-July 27 protected activities were a basis for Blue Circle’s
suspension or firing of Saunders. See Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983).
That, however, is by no means the end of the matter.
The Relationship Between Saunders’ use of the
Photocopier and Section 7 of the Act
As touched on earlier, and as will be more fully discussed
in section VI, below, we have no credible testimony from
Saunders about what his purpose was in making the copies,
nor do we know to whom Saunders intended to give the cop-
ied pages. Thus, it is entirely possible that the copies were
destined for persons not employed by Blue Circle. It also is
entirely possible that, as Saunders copied the pages, his focus
was on ECO concerns.
On the other hand, we do know:
(1) The copied pages were part of a publication aimed at
preventing cement companies from burning hazardous waste
as fuel for their kilns.
(2) All of Saunders’ activities to which the record refers
that had to do with cement companies’ use of hazardous
waste were aimed specifically at preventing Blue Circle from
burning hazardous waste.
(3) Local D421 opposed Blue Circle’s burning of haz-
ardous waste, with that opposition stemming at least in part
from a concern about the effect of the resulting emissions on
the health of the Company’s employees.
(4) Saunders believed that Blue Circle’s use of hazardous
waste as fuel would be harmful to his health and to the
health of his coworkers (as well as to the health of residents
of nearby communities).
(5) The Union appointed Saunders as its environmental of-
ficer as part of the Union’s effort to keep Blue Circle from
effectuating its plan to burn hazardous waste.
(6) As a deliberate tactic the Union sought to enlist the
residents of nearby communities, and the public at large, in
the fight against Blue Circle’s plan to burn hazardous waste.
In light of these considerations, I conclude that Saunders’
use of Blue Circle’s photocopier on July 27 to make copies
of pages from the sham recycling publication constituted pro-
tected activity. I reach that conclusion by two routes.
The first is that, no matter to whom Saunders intended to
give the copies, Saunders surely made the copies to further
his opposition to Blue Circle’s plan to burn hazardous waste.
(That, indeed, is why the Company fired him.) As such,
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The briefs of the General Counsel and the Unions proceed en-
tirely on the basis that Saunders was using the photocopier in order
to provide copies to fellow union officers (which I have found not
to be the case) and/or that the Company suspended and fired Saun-
ders because of his pre-July 27 union activities (which I also have
found not to be the case). Blue Circle’s brief argues that Saunders
was using the photocopier for ECO purposes and that Saunders’ use
of the photocopier was therefore unprotected by the Act.
13 Needless to say, concerted employee action intended to further
on-the-job health and safety is protected by Sec. 7. E.g., Martin
Marietta Corp., 293 NLRB 719, 725 (1989).
14 I assume that if Blue Circle had limited the noncompany use of
its photo copier ‘‘to a small number of isolated ‘beneficent acts,’’’
the Company could lawfully have disciplined Saunders for his use
of the machine on July 27. Hammary Mfg. Corp., 265 NLRB 57 fn.
4 (1982). But the record shows that the Company did not limit the
use of the photocopier in that manner.
Saunders’ use of Blue Circle’s photocopier was the ‘‘logical
outgrowth’’ of earlier activities that plainly were protected
by Section 7: the Union’s opposition to Blue Circle’s plan
to burn hazardous waste, the Union’s efforts to involve the
public, and the Union’s appointment of Saunders as its point
man in the fight against the Company’s plan. See Mike
Yurosek & Son, Inc., 306 NLRB 1037, 1038 (1992), in
which the Board held: ‘‘We will find that individual action
is concerted where the evidence supports a finding that the
concerns expressed by the individual are [the] logical out-
growth of the concerns expressed by the group.’’
The second route is that, given the fact that the Union ap-
pointed Saunders to lead the fight against Blue Circle’s plan
to use hazardous waste, given that Saunders made the copies
in furtherance of his opposition to that plan, and given Saun-
ders’ concern about the impact of the burning of hazardous
waste on the health of Blue Circle’s employees, all efforts
by Saunders to prevent the Company from putting its plan
into effect prima facie constituted concerted protected activ-
ity. Accordingly, it was up to Blue Circle to overcome that
prima facie showing (as, say, by proving that Saunders used
the copier solely because of his concern about the effects of
the burning of hazardous waste on the residents of Owasso).
Cf. Wright Line, supra. That Blue Circle did not do.
Both of these routes presume that an employee’s activity
may be protected even if a reason—or, indeed, the main rea-
son—that the employee engaged in it had nothing to do with
the mutual aid or protection with which Section 7 is con-
cerned. (As noted above, it could be that as Saunders copied
the pages, his focus was on ECO matters.) The parties have
not pointed me to any precedent that addresses this issue;
that is, the issue of whether an employee’s activity is pro-
tected if the employee had dual or joint reasons for acting,
one reason having to do with mutual aid or protection among
employees, and one not.12 It seems to me, however, that the
purposes of the Act would be better fulfilled if an activity
is deemed protected so long as one of the reasons the em-
ployee engaged in the activity was for mutual aid or protec-
tion (and the activity otherwise would be found to be pro-
tected).
V.
Blue Circle argues that even if Saunders’ use of the photo-
copier ordinarily would be protected, it is not in this case be-
cause: the Union did not in fact oppose Blue Circle’s plan
to burn hazardous waste; Saunders’ efforts to convince the
public to oppose Blue Circle’s plan constitutes impermissible
disloyalty; and the Company had the right to discipline Saun-
ders for using its equipment to work against the Company’s
legitimate interests.
I turn now to these arguments.
Saunders’ use of the Company’s Photocopying Machine
for Purposes Contrary to Blue Circle’s
Legitimate Interests
As I earlier discussed, Blue Circle routinely permits em-
ployees to use the Company’s photocopier, during their
worktime, to copy personal, noncompany materials. Under
such circumstances, Blue Circle may not lawfully discipline
an employee for using the machine where the employee is
doing so in concert with other employees in order to achieve
objectives encompassed by Section 7 of the Act,13 even if
the materials being copied constitute an attack on the Com-
pany. Champion International Corp., 303 NLRB 102 (1991);
cf. Union Carbide Corp. v. NLRB, 714 F.2d 657 (6th Cir.
1983); Richards United Super, 308 NLRB 201 (1992).14
Were Saunders’ Efforts to Stop Blue Circle’s Burning
of Hazardous Waste Contrary to the Union’s Position
Blue Circle contends ‘‘at the time of Saunders’ discharge,
there was no dispute between the Company and the union
concerning the Company’s use of waste-derived fuels.’’ (Br.
at 30.) The claim is, that is to say, that Saunders’ efforts to
keep the Company from using hazardous waste as fuel were
not in furtherance of Local D421’s position and, in fact, were
contrary to it. And, indeed, where an employee, or a group
of employees, seeks to achieve objectives contrary to that of
the union that is the unit’s exclusive bargaining representa-
tive, and does so by bypassing the union, such efforts may
be unprotected. Emporium Capwell Co. v. Western Addition
Community Organization, 420 U.S. 50 (1975); River Oaks
Nursing Home, 275 NLRB 84 (1985).
And, as the Company points out, it is true that in course
of the June 13–14 negotiating session, the Union’s nego-
tiators seemed to support the Company’s use of hazardous
waste as fuel (subject to certain conditions).
But day-in, day-out, starting in March 1991 and continuing
at least through the date of the hearing, Blue Circle employ-
ees participated in rallies and picketed the Company carrying
signs that proclaimed the employees’ opposition to the Com-
pany’s use of hazardous waste. Moreover Saunders never
sought to bypass the Union and negotiate directly with Blue
Circle. Under these circumstances it would appear that the
expression by Saunders of his opposition to the burning of
hazardous waste would have been protected even if, at the
time Blue Circle fired Saunders, the Union had in fact con-
cluded that it should support Blue Circle’s plan to burn haz-
ardous waste. See, e.g., Samsonite Corp., 206 NLRB 343,
346 (1973).
In any case, the Union had not come to any such conclu-
sion. It never entered into any agreement with Blue Circle
by which the Union agreed to the Company’s use of hazard-
ous waste as fuel. And both before and after the events lead-
ing to Saunders’ discharge, the Union expressed its opposi-
635BLUE CIRCLE CEMENT CO.
tion to the Company’s plan. Recall, for example, the Union’s
April letter to employees claiming that ‘‘hazardous waste
burning facilities pose a serious threat to the health of the
workforce.’’ And in November (1991) the Union sought to
have the Oklahoma State AFL–CIO go on record as oppos-
ing the use of hazardous waste as fuel for cement kilns.
What that adds up to is that, at most, the Union’s position
was ambiguous concerning the use by Blue Circle of haz-
ardous waste as fuel. More accurately, the position con-
cerning hazardous waste that the Union expressed at the bar-
gaining sessions on June 13 and 14 was a temporary one,
one stemming from the identity of the persons negotiating on
behalf of the Union. Except for that one-time expression of
contingent approval, the Union consistently opposed Blue
Circle’s use of hazardous waste. Thus, Saunders’ efforts to
prevent the Company from burning hazardous waste were in
support of the Union’s position, not contrary to it.
Disloyalty
Blue Circle argues that Saunders’ use of the photocopier
was unprotected by the Act if only because: (1) Saunders
was going to use the copied materials to attempt to persuade
the public to oppose Blue Circle’s plan to burn hazardous
waste; and (2) that activity constitutes impermissible dis-
loyalty. In this latter regard Blue Circle cites NLRB v. Elec-
trical Workers IBEW Local 1229 (Jefferson Standard), 346
U.S. 464 (1953).
As discussed above, it may well be that, as the Company
argues, Saunders was going to use the copied materials in his
effort to have the public-at-large oppose Blue Circle’s plan.
Additionally, I have found that a reason that the Union
brought Blue Circle’s plan to use hazardous waste as fuel to
the public’s attention was to strengthen the Union’s hand in
its effort to improve the kinds of terms of employment com-
monly found in collective-bargaining agreements (wages, in-
surance benefits, and the like). And I will assume, for argu-
ment’s sake, that if that was the only reason that the Union
opposed the Company’s plan to burn hazardous waste, Jeffer-
son Standard would apply. (I note, however, that unlike the
employee behavior at issue in Jefferson Standard, at no time
did either the Union or Saunders attack the quality of the
product that Blue Circle produced (cement). Their opposition
was directed solely at a proposed change in the way the
Company manufactured the product. And in Jefferson Stand-
ard the employees did not disclose that they were in the
midst of a labor dispute with their employer, while here the
Union did.)
In any event, I have also found that there was another rea-
son that both Saunders and the Union opposed the Com-
pany’s plan to burn hazardous waste. Namely, they believed
that, were the Company to put the plan into effect, the result-
ing emissions would adversely affect the health of Blue Cir-
cle’s employees. And a reason that Saunders and the Union
brought the Company’s plan to the attention of the public
was to garner public support for the Union’s effort to protect
Blue Circle employees from such emissions.
Under these circumstances, it is altogether evident that the
rationale of Jefferson Standard does not apply. In Jefferson
Standard the employees attacked the quality of their employ-
er’s product; that was not the case here. In Jefferson Stand-
ard the employees’ attack ‘‘related itself to no labor practice
of the Company. It made no reference to wages, hours, or
working conditions’’ (346 U.S. at 476). Here, the Union (and
Saunders) made it clear to the public that Blue Circle’s em-
ployees were concerned about the impact on their working
conditions of Blue Circle’s burning of hazardous waste. In
Jefferson Standard the employees’ ‘‘attack asked for no pub-
lic sympathy or support.’’ (Id.) Here, the Union (and Saun-
ders) clearly did. In Jefferson Standard the employees’ hand-
bills ‘‘attacked public policies of the Company which had no
discernible relation’’ to the underlying controversy between
the employees and their employer. (Id.) Here, the Union (and
Saunders) went to the public about the precise ‘‘policy’’ of
Blue Circle that concerned the employees—the policy of
using hazardous waste as a fuel.
See generally NLRB v. Peter Cailler Kohler Swiss Choco-
lates Co., 130 F.2d 503 (2d Cir. 1942); Motorola, Inc., 305
NLRB 580 (1991); Allied Aviation Service Co., 248 NLRB
229 (1980), enfd. mem. 636 F.2d 1210 (3d Cir. 1980).
Pardee’s Belief that Saunders’ Use of the Photocopier
was Solely for ECO Purposes
Pardee testified that he believed that Saunders was copy-
ing the sham recycling publication in order to provide copies
to Saunders’ fellow ECO members. I credit that testimony as
an honest expression of Pardee’s belief. Further, as I add up
the record, the evidence fails to show union animus on
Pardee’s part. As a result I conclude that Blue Circle did not
suspend or fire Saunders because of his support for the
Union and, accordingly, that Blue Circle did not violate Sec-
tion 8(a)(3) of the Act.
But whatever Pardee believed, Saunders’ use of the photo-
copier on July 27 was concerted protected activity (as dis-
cussed earlier). Pardee’s belief to the contrary thus does not
protect the Blue Circle from being held to have violated Sec-
tion 8(a)(1). See Roadmaster Corp. v. NLRB, 874 F.2d 448
(7th Cir. 1989). Further, given the ongoing presence at the
plant of the pickets whose signs, after all, denounced Blue
Circle’s plan to burn hazardous waste, Pardee should have
recognized the connection between Saunders’ use of the pho-
tocopier and the Union’s antihazardous waste position.
VI.
Why I Have Found that Saunders did not Intend to
Give the Copies to Union Officials or Other Blue
Circle Employees
Saunders testified that he was copying the pages from the
sham recycling publication in order to provide copies to the
Union’s five other officers.
But Saunders did not tell Pardee that he was making the
copies for that purpose when Pardee caught him at the photo-
copier on July 27. Saunders did not say so in the meeting
later that morning. He did not say so in a conversation with
fellow union officer Adams 2 days later. He did not say so
during the August 5 meeting (at which Pardee discharged
Saunders). Instead Saunders kept referring to his right to
copy materials for ‘‘personal’’ reasons. Moreover, at no time
during that period did any officer of the Union tell the Com-
pany that Saunders’ photocopying efforts on July 27 were for
union purposes.
Finally, even on August 6, when Saunders filed a griev-
ance over his suspension and discharge, Saunders continued
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Saunders, grievance reads:
On July 27, 1991 I was suspended without pay for a total of
9 [days] for using the Company Copier for personal paper
work. On August 5 I was terminated for the same reason. I
believe I was unfairly and wrongly discharged. Many times in
the past ten years I have asked and been granted permission
to use the Copier by office managers. I have also offered pay-
ment to various office managers and it has always been re-
fused. It is a very common practice for both employees and
staff to use these machines for their own use. For instance,
Randy Kriel run 500 copies of an Anti-Abortion flyer. I feel
my termination was due to my out spokeness [sic] on the haz-
ardous waste issue.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
to refer to his ‘‘personal’’ reasons for using the photo-
copier.15
I can understand that when Pardee first came across Saun-
ders at the photocopier on July 27, even had Saunders in fact
been planning to give the copies to his fellow union officers
Saunders might have thought that saying so would really get
him into trouble. But, had Saunders actually been using the
photocopier to provide copies to union officers or other Blue
Circle employees, sooner or later in the period through Saun-
ders’ filing of his grievance, either Saunders or one of the
other union officers would have said so. Since they did not,
and since Saunders kept referring to his ‘‘personal’’ reasons
for his use of the photocopier, I am convinced that Saunders
was making the copies to provide to persons who had no di-
rect connection with Blue Circle.
The Package to the Coxes
As discussed above, Saunders testified that he wrote the
Coxes’ address on the envelope by hand, and used stamps,
not a postage meter, for postage. Benson testified to the con-
trary. According to Benson, the address on the envelope he
found in the mailbox was typed and the envelope carried a
postage meter tape. As far as demeanor is concerned, both
Saunders and Benson were equally credible.
It could be that Benson was lying. It could be that he saw
the package, thought it important to determine what was in
it, opened it, took out one of the fliers, then realized that by
tampering with the package he might have committed a
crime. Under this hypothesis, Benson then put all the fliers
(with the one exception) in a new envelope, typed up a label,
used the postage meter for postage, photocopied the face of
the envelope, and then—perhaps—put the package back in
the mailbox.
Even under this assumption I believe that Pardee thought
that Benson had found the envelope in the form shown by
the copy of its face.
But the likelihood that Benson engaged in such behavior
seems to me to be remote. In particular, it is hard to imagine
that Benson would go out of his way to preserve evidence
of his misbehavior by photocopying the face of the new en-
velope.
As for the probability of Benson’s version, it was com-
monplace for employees to use Blue Circle’s postage meter
(although they were always expected to reimburse the Com-
pany for such use). And it would have been natural enough
for Saunders to type the Coxes’ address on a Blue Circle
label. Then, when Pardee raised the matter at the August 5
meeting, at which meeting Saunders must have been terrified
about the possibility of losing his job, it is understandable
that Saunders might blurt out the claim that he did not use
the postage meter.
I thus find Benson’s version more credible than Saunders’.
In any case, the issue has only tangential relevance. As
Blue Circle agrees, Saunders would not have been fired had
he not used Blue Circle’s photocopier to copy pages from the
‘‘sham recycling’’ publication.
Other Matters
Local D421 and the Boilermakers International argue,
along with the General Counsel, that the reasons Blue Circle
put forward for suspending and firing Saunders kept shifting,
and that this shows that Blue Circle deliberately fired Saun-
ders for his union activity. As my discussion of the facts in-
dicates, I do not find that argument persuasive.
Blue Circle follows a progressive disciplinary system in
respect to many types of discipline-worthy employee behav-
ior. No such system was used in Saunders’ case. Again, the
General Counsel and the unions argue that this proves illicit
intent on Blue Circle’s part. And again, as my discussion of
the facts shows, I do not find that to be the case.
CONCLUSIONS OF LAW
1. Blue Circle is an employer engaged in commerce within
the meaning of Section 2(2) and (6) of the Act.
2. Local D421 and the Boilermakers International are labor
organizations within the meaning of Section 2(5) of the Act.
3. Blue Circle violated Section 8(a)(1) of the Act by sus-
pending its employee Stephen Saunders on July 27, 1991,
and by discharging him on August 5.
4. The foregoing unfair labor practices affected commerce
within the meaning of Section 2(7) of the Act.
REMEDY
Because Blue Circle suspended and then discharged em-
ployee Stephen Saunders in violation of Section 8(a)(1), the
Company will be required to offer to reinstate him and must
make him whole for any loss of earnings and other benefits
he suffered as a result of such unfair labor practices. Loss
of earnings and benefits shall be computed on a quarterly
basis from the date of Saunders’ suspension to the date of
proper offer of reinstatement, less any interim net earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest to be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Blue Circle Cement Company, Inc.,
Tulsa, Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Suspending or discharging an employee for using its
photocopy machines where the effect of which is to interfere
637BLUE CIRCLE CEMENT CO.
17 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Stephen Saunders immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result the Respondent’s action against him,
in the manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the Respond-
ent’s unlawful suspension and discharge of Saunders and no-
tify Saunders in writing that it has done so and that it will
not use the suspension or discharge against him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Tulsa, Oklahoma, copies of the
attached notice marked ‘‘Appendix.’’17 Copies of the notice,
on forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT suspend or discharge employees for using
our photocopy machines where the effect of such action is
to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Stephen Saunders immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed,
and WE WILL make him whole, with interest, for any loss of
earnings and other benefits he suffered as a result of our ac-
tion against him.
WE WILL remove from our files any reference to our un-
lawful suspension and discharge of Saunders and WE WILL
notify Saunders in writing that we have done so and that we
will not use the suspension or discharge against him in any
way.
BLUE CIRCLE CEMENT COMPANY, INC.