Firch Baking Co.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 772 (N.L.R.B. 1977)

DECISIONS
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772 OF NATIONAL LABOR RELATIONS BOARD
Baking Company and Donald L. Walters. Case
6-CA-9773
September 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, AND MURPHY
On June 14, 1977, Administrative Law Judge
Joseph L. Battle issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith.
The Administrative Law Judge found that the
Respondent did not violate Section of the Act
when it gave a suspension to Donald L.
Walters for insubordination. The conduct in question
occurred during a meeting with management officials
at which Walters reported dissatisfaction among the
employees with regard to overtime, shift changes,
and safety conditions, and asserted that all of the
foregoing problems were the result of the incompe-
tent manner in which these officials were performing
their jobs. In dismissing the complaint, the Adminis-
trative Law Judge reasoned that Walters' remarks to
the production supervisor, Robert
Cimino, and its personnel manager, Joseph Desser,
had been disrespectful, and thus he concluded that
Walters was disciplined for just cause and not
because of any protected concerted activity engaged
in by him. We disagree.
The discussion which led to this disciplinary action
was initiated by the Respondent because of Walters'
refusal to work mandatory overtime.' During this
meeting, which was attended by the union steward,
Victor J. Marthaler. Jr.. in addition to the above-. ,
named persons, Walters was solicited as to what was
"bothering" him and why management was having
"trouble" with him. As stated above. Walters
proceeded to elaborate on the reasons his and
other employees' discontent and to place the blame
for these problems on Cimino's and Desser's lack of
competence in the handling of their jobs. His
remarks included, inter alia, the following: "I don't
think you're doing your job" and "better you say it
This refusal resulted an additional 3-day which not
herein.
I Air Conditioning, NLRB 91
[that you're an ass] than me." Notwithstanding the
fact that the language used was admittedly intemper-
ate, the tone of the meeting loud and excited, and
Walters' representations of Desser's character and
Desser's and Cimino's competence insulting, we
believe that the Administrative Law Judge erred in
not finding the suspension to be violative
of the Act.
The Board has held that employees' attempts to
implement the terms of collective-bargaining agree-
ments, irrespective of whether these claims are found
to be meritorious or whether the employee refers to
contract clauses while making such complaints, are
protected under Section 7 of the Two of the
items raised by Walters as allegedly causing unhap-
piness among the employees, overtime and safety
conditions, are covered under the collective-bargain-
ing agreement between the Respondent and the
Union. Therefore, even assuming, as the Administra-
tive Law Judge found, that Walters was insolent
during the meeting, the disciplinary action taken
against him was in violation of Section of the
Act because he was engaged in protected concerted
activity at the time in question.
While the Board has held that an employee may be
deprived of the protection of the Act if he commits
improprieties in the course of his Section 7 activity,
this occurs only in "flagrant cases in which the
misconduct is so violent or of such serious nature as
to render the employee unfit for further
Walters did not engage in such egregious or
outrageous misconduct herein as to warrant depriv-
ing him of the Act's protections. This is especially the
case as Walters was invited by the management
officials to comment on the situation in the In
addition, the exchange of remarks in a
private office meeting and not on the plant floor
where it could have had a negative effect on these
supervisors' status in the eyes of other employees.
Based on the above, we have decided to reverse the
Administrative Law Judge's Decision herein. Ac-
cordingly, we have revised the corresponding Order
provision and have included the appropriate Remedy
and Conclusions of Law and the notice to conform
to this Decision.
We have found, contrary to the Administrative
Law Judge, that the engaged in certain
unfair labor practices in violation of Section
of the Act by suspending its employee, Donald L.
Walters, for engaging in protected concerted
(1971); John Sexton Co., a Division of Beatrice Foa l Co., 217 NLRB 80
(1975); Roadway Express, 217 NLRB 278
The Manufacturing Corporation. 76 NLRB 526, 527 1948).
232 NLRB No. 120
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773 FIRCH BAKING CO.
In our opinion, it is necessary, in order to
the purposes of the Act, that the Respon-
dent be ordered to cease and desist from engaging in
unlawful activity and to expunge from the
employment record of the above-named employee
record of said suspension and to make said
employee whole for any loss of pay or other
employment benefits he may have suffered as a result
of said suspension. shall be computed in
accordance with W. Woolworth Company, 90
NLRB 289 and Florida Steel Corporation, 231
NLRB 65
Upon the foregoing findings of fact and upon the
record as a whole we make the following:
1. The Firch Baking Company is an employer
engaged in commerce within the meaning of Section
and (7) of the Act.
2. The Respondent has interfered with, re-
strained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act by
suspending Donald L. Walters for engaging in
protected concerted activities, thereby violating
Section of the Act.
3. The aforesaid unfair labor practice affects
commerce within the meaning of Section and (7)
of the Act.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Firch Baking Company, Erie, Pennsylvania, its
agents, successors, and assigns, shall:
Cease and desist from:
(a) Interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act by suspending employees
because they engage in protected concerted activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following action:
(a) Expunge from the employment record of
Donald L. Walters any entry concerning his suspen-
sion for 2-1 days for alleged insubordination.
(b) Make Donald L. Walters whole for any loss of
pay he may have incurred by reason of the
Respondent's discrimination against him in the
See. generally. NLRB 716 (1962).
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice "Posted by Order
of the National Labor Board" shall read "Posted Pursuant to a
manner described in "The Remedy" section of this
Decision.
(c) Preserve and, upon 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 analyze the amount of
due under the terms of this Order.
(d) Post at its place of business in Erie, Pennsylva-
nia, copies of the attached notice marked
Copies of said notice, on forms provided by
the Regional for Region 6, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER MURPHY, concurring:
I agree with the conclusion of my colleagues.
However, I believe that a more complete rationale is
required.
The Administrative Law Judge found that the
Respondent did not violate Section of the Act
when it gave a suspension to Donald L.
Walters for alleged insubordination, that is, for
telling Production Supervisor Cimino and Personnel
Manager Desser that they were doing their jobs
improperly and apparently for calling Desser, in
effect, an "ass." In recommending the complaint be
dismissed, the Administrative Law Judge reasoned
that Walters' remarks to Cimino and Desser had
been disrespectful and from this concluded that
Walters had been disciplined for just cause and not
for engaging in protected activity. I disagree.
Walters' alleged misconduct occurred during a
discussion initiated by Cimino and Desser concern-
ing Walters' refusal to work mandatory overtime.6
After the overtime matter was disposed of, Desser
asked Walters why Respondent was having so much
trouble with him. At that point, Walters proceeded to
elaborate on why many employees, not just himself,
were discontented on the job and the matters raised
included overtime, shift changes, and safety condi-
tions-all matters involving terms and conditions of
Judgment of the United Slates Court of Appeals an Order of the
Labor Relations Board."
This refusal resulted in an additional 3-day suspension is not
disputed here.
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Houston McDonough 193
1123, 1129-30(1971).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Desser's attempt to have
out of it" and discuss
what him, Walters persisted in his
he "should be talking for the other
that are upset about what's going on
too." Furthermore, two of the items
raised---overtime and hazards-were covered
the then bargaining agreement. Thus, it
was in the course of expressing these complaints that
Walters criticized Desser, telling him he was not
his way he should. To that comment
unresponsively replied, "Are you
calling me to which Walters commented
i t than me." Walters then said he
to the matter over without anyone
getting upset. But Desser persisted in his truculence,
stating. "You're saying Mr. Cimino doesn't know
how to do his job right and that I'm an asshole."
Walters replied that "one out of two isn't bad." The
then ended. Walters as a consequence of this
was suspended for 2-
dination."
days for "insubor-
I t seems clear enough from the above that Walters
in his discussion-or perhaps in what became
his contiontation -with management, engaged in a
protected concerted activity and that his alleged
improper comments were a part of that activity. This
Hoard has long held that the use of strong language
in the course of activities supplies no legal
for disciplining an employee except
where the conduct is flagrant or Here
Walters' claim that Desser and perhaps were
doing their jobs properly was a legitimate and
relevant part of his concern over working conditions.
I t was not thrown out simply to ridicule or denigrate
management but was. insofar as the record shows,
seriously offered as an explanation of the source of
the problems in the plant. Consequently-and
despite Desser's extreme reaction to the
cannot realistically be described as serious or
egregious misconduct which, even though part of the
of the protected activity, nevertheless
disciplinary action. In in my view,
Walters' criticism of management cannot in the
circumstances here be properly characterized as
misconduct at all. As for his responses to Desser's
claims that Walters was calling him an ass
or worse. Walters' replies were an integral part of his
concerted activity and are scarcely to be considered
misconduct. At worst. they were only rather
uncomplimentary statements of opinion. Moreover,
t h e were which Respondent evoked or
and which i t now tries to turn to its advantage
for its disciplining Walters for his
In any event, while Walters'
been all that Respondent
might wish of its employees, it was a part of Walters'
protected activities and clearly not so
if improper at all-as to be unprotected. Consequent-
ly, I find that Respondent, by suspending Walters for
engaging in such conduct, violated Section of
the Act.
Manufacturing Corporation. 76 NLRB 526. 527 (1948): see
also American Telephone Telegraph Co.. 21 NLRB 782 and cases
there cited,enfd. 521 (C.A. 2. 1975).
See Shell and Concrete Co., A Division of Co.,
NLRB
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of rights guaranteed by
Section 7 of the National Labor Relations Act by
suspending or otherwise discriminating against
any employees because they engage in protected
concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed them by the Act.
WE WILL expunge from the employment record
of Donald L. Walters any entry concerning his
suspension for insubordination.
WE WILL make Donald L. Walters whole for
any loss of pay he may have suffered by reason of
said suspension.
DECISION
JOSEPH L. BAWLE, Administrative Law Judge: This case
was heard before me at Erie, Pennsylvania, on April 19,
1977, upon a complaint issued by the General Counsel of
the National Labor Relations Board, amended at hearing,
and an answer filed by Baking Company, herein
called the Respondent. The issues raised by the pleadings
relate to whether or not the Respondent violated Section
of the National Labor Relations Act, as amended,
by suspending Donald L. Walters, the Charging Party, on
September 27, 1976, for 2-1/2 days. Briefs have been
received from the General Counsel and the Respondent
and have been duly considered. For the reasons which
follow, I find that the General Counsel has failed to meet
its burden of proof and recommend that the complaint
herein be dismissed.
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775 FIRCH BAKING CO.
Upon the entire record in this proceeding' and having
observed the testimony and demeanor of the witnesses, I
make the following:
The complaint alleges, the answer admits, and I find that
the Respondent is engaged in the production and nonretail
sale of baked goods; its receipt and sale of goods and
materials in interstate commerce are sufficient to satisfy the
Board's standard for the assertion of jurisdiction; and the
Respondent is an employer within the meaning of the Act.
On September 27, 1976, as a result of his refusal to work
mandatory overtime, alleged discriminatee Donald L.
Walters met with Respondent's production supervisor,
Cimino, and Respondent's personnel manager, Desser, in
the presence of a union steward, Marthaler. A 3-day
suspension which Walters received as a result of his refusal
to work overtime is not in dispute in the case at bar. After
the overtime matter was discussed, Desser asked Walters
"why are we having so much trouble with you lately?"
Walters that he felt thev were not trouble
with him, "it's just that things were on my
mind which I felt should be discussed between Mr. Cimino
and myself." Speaking to Cimino, Walters said, "I feel that
I know that you just got this promotion and this job, and
you're just put in this position and I feel like there is a
commotion going on downstairs, and I don't think you're
doing your job because if you were, things would be
different." Cimino asked Walters what he meant by that
statement whereupon Walters "explained to him about the
different hours that we've been having lately and the shift
changing and the safety hazards." Desser asked Walters,
"Why don't you just leave all the other employees out of
this and let's have what is bothering just you and keep it
between replied that he thought he "should be
talking for the other employees that are upset about what's
going on downstairs, too." Walters asked Desser "isn't
what a personnel manager is for is to come to and talk to,"
and added that "we should complain to you . . . . You
have never faced one of us that I can recall or anybody
that's ever told me that you invited them into your office to
explain what's wrong downstairs, if there's anything."
According to Walters, he "just suggested to him that would
be nice, if he suggested to everybody that his door is open."
When Walters told Desser, "I don't think you're doing
your job the way you are supposed to do it," Desser asked
Walters, "Are you calling me an ass?" To this, Walters
replied "better you say it then me." Walters told Cimino
that he wished they could "just talk this out, be relaxed and
The General Counsel's motion, that evidence of events occurring
before and after the September 27 meeting be stricken the record, is
denied.
not get upset about it, any of us, and just come to a
decision on what's going on downstairs." Desser then said,
"Yeah, Walters, we know what your're talking about . . . .
You're saying that Mr. Cimino doesn't know how to do his
job right and that I'm an asshole." Walters' response was
"one out of two isn't bad." The meeting ended after the
Respondent advised Walters that he was suspended until
further notice. Walters' suspension was confirmed by a
letter to him from Cimino dated September 27, 1976. By a
letter dated September 30, 1976, Cimino advised Walters
that he was suspended for 3 days because of his refusal to
work overtime and for days because of insubordina-
tion. The letter states, in part, that "in conversation with
Joe Desser and Bob Cimino regarding overtime to be
performed on your shift that day [September 27, you
made accusations and charges of gross incompetence
against the production superintendent, Bob Cimino, and
personnel director, Joe Desser, stating, in part, that they
don't know how to do their jobs. Such insults to the
recognized authority of your supervisors amounts to
insubordination."
Analysis
In agreement with the Respondent, I that Walters
was disciplined for just cause and not because of any
concerted activity by him for the purpose of mutual aid
and protection of other employees. Accordingly, I grant the
Respondent's motions to dismiss the complaint herein,
upon which motions I deferred ruling the hearing.
In so finding, I note that in Walters' candid testimony,
which I have credited, he admittedly told Cirnino that he
did not think Cimino was doing his job. Although Cimino
reasoned with Walters, Walters also told Desser that
Desser was not doing his job the way he was supposed to
do it. Unlike Cimino, Desser took offense at Walters'
remark even after Walters assured Cimino that he did not
want anybody to get upset. It is obvious to me that Desser
considered Walters' remarks to be a personal insult and an
indication of disrespect and that this led to the
suspension which Walters received for insubordination.
There is no showing that such remarks were tolerated
before this occasion by the Respondent. Cf. Chickasha
Mobile Homes, 202 NLRB 1057 (1973). Moreover, it
appears that, at least as to Desser, Walters' remarks
exceeded a mere explanation of the cause of Walters'
dissatisfaction with his job. In these circumstances, I
conclude that the complaint herein should be dismissed.
[Recommended Order for dismissal omitted from publi-
cation.]