Neff-Perkins Co.

National Labor Relations Board - Board Decisions

Dec 30, 1994

315 N.L.R.B. 1229 (N.L.R.B. 1994)

1229
315 NLRB No. 157
NEFF-PERKINS CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. We also find no merit in
the Respondent’s allegations of bias and prejudice on the part of the
judge. Thus, we perceive no evidence that the judge made preju-
dicial rulings, or demonstrated bias against the Respondent in his
analysis or discussion of the evidence. Similarly, there is no basis
for finding that bias and prejudice exist merely because the judge
resolved important factual conflicts in favor of the General Coun-
sel’s witnesses. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656,
659 (1949).
In adopting the judge’s finding that employees Dianne Cottrill and
Rose Avery were engaged in protected, concerted activity when they
asked questions and made comments at the Respondent’s October 7,
1993 meeting, we note that employee questions and comments con-
cerning working conditions raised at a group meeting called by an
employer clearly come within the definition of concerted activity
under Board precedent. See United Enviro Systems, 301 NLRB 942
(1991), enfd. mem. 958 F.2d 364 (3d Cir. 1992); and Whittaker
Corp., 289 NLRB 933 (1988). In this regard, in adopting the judge’s
finding that the employee activity at issue here was concerted within
the meaning of the Act, Chairman Gould declines to rely on, and
questions the validity of, Meyers Industries, 268 NLRB 493 (1984),
remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985), reaffd. 281 NLRB 882 (1986),
affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988).
2 In adopting the judge’s conclusion that the Respondent unlaw-
fully discharged employees Cottrill and Avery, we disavow the
judge’s speculation concerning the effect of the employees’ question-
ing at the Employer-called meeting on Harrison Representative
Susan Hanson. We further find without merit the Respondent’s ex-
ceptions concerning the judge’s failure to find that it on occasion de-
viated from its progressive disciplinary system since we adopt the
judge’s conclusion that the Respondent impermissibly discharged the
employees for their union and protected, concerted activity. Finally,
we note that under Mast Advertising & Publishing, 304 NLRB 819
(1991), the judge need not have engaged in an analysis pursuant to
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), to the extent he found that
the discharges violated Sec. 8(a)(1). Thus he found that the conduct
for which the Respondent claims to have discharged the employees
was protected, concerted activity, and rejected the Respondent’s de-
fense that the employees engaged in conduct exceeding the protec-
tion of the Act during the course of that activity. We do not, how-
ever, find that the judge’s reasoning is deficient because he cited
Wright Line.
3 We shall modify the judge’s Order to more closely reflect the
violations found. We shall also correct the Order to reflect that the
unlawful discharges occurred on October 8, 1993.
Neff-Perkins Co. and United Rubber, Cork, Lino-
leum and Plastic Workers of America, AFL–
CIO, CLC. Case 8–CA–25869
December 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
On September 15, 1994, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Neff-Perkins Company,
Middlefield, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Discharging or terminating or otherwise dis-
criminating against any employee for engaging in
union and protected, concerted activity.’’
2. Substitute the following for paragraph 2(b).
‘‘(b) Expunge from its files any reference to the dis-
charges of Dianne R. Cottrill and Rose Avery on Octo-
ber 8, 1993, and notify them in writing that this has
been done and that evidence of this unlawful discharge
will not be used as a basis for future personnel actions
against them.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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
have violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge any employees for engaging
in union or protected, concerted activity.
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.
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1993 unless otherwise indicated.
WE WILL offer Dianne R. Cottrill and Rose Avery
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy
section of the decision.
WE WILL remove from our files any reference to
their discharges, and notify them in writing that this
has been done and that evidence of this unlawful dis-
charge will not be used as a basis for future personnel
actions against them.
NEFF-PERKINS COMPANY
Catherine A. Modic, Esq., for the General Counsel.
Dianne Foley Heary, Esq. and Glen Smith, Esq., of Cleve-
land, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administraive Law Judge. This
matter was heard In Cleveland, Ohio, on June 28 and 29,
1994. Subsequently briefs were filed by the General Counsel
and Respondent. The proceeding is based on a charge filed
October 20, 1993,1 by United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL–CIO, CLC. The Regional
Director’s complaint dated December 3, alleges that Re-
spondent Neff-Perkins Company, of Middlefield, Ohio, vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act by terminating the employment of Diane Cottrill and
Rose Avery on about October 8, 1993, because of their union
and/or protected concerted activities.
Upon a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation, engaged in the manufacture
of molded rubber products at its facility in its Middlefield fa-
cility and it annually ships goods valued in excess of
$50,000 from its location to points outside Ohio. It admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent operates two facilities, including its Mid-
dlefield plant, which facility is directly managed by three co-
directors. Since October 1992, Robert Elly Jr. has held the
position of codirector of operations. The other two codirec-
tors are Brian Feimer, codirector in charge of engineering
and Keith Kinkelaar, codirector in charge of quality. Re-
spondent’s vice president was Dick Pohl and Respondent’s
president is Robert Elly Sr.
Union International Representative Craig T. Hemsley was
involved in organizing campaigns at Respondent’s Middle-
field facility in 1992 and 1993. The 1992 campaign occurred
in the spring and did not result in a representation petition
being filed with the Board. Employee Rose Avery was in-
volved with the 1992 campaign (she signed an authorization
card and attended several organizing meetings), and the Re-
spondent was aware of Avery’s involvement in the 1992
campaign as evidenced by her following credible testimony.
On the Monday following a Saturday union organizing cook-
out at a coworker’s home, Avery was summoned to a meet-
ing conducted by Elly Jr. with Dick Pohl and Keith
Kinkelaar in attendance. Elly Jr. had received information
that an argument had occurred between Avery and a co-
worker, a dispute that involved Avery’s comments to the co-
worker to the effect that if she wanted to know about the or-
ganizing meeting, she should have attended it. Avery also
told her coworker that she had no business reporting back to
management about the union meeting.
Elly Jr. repeatedly asked Avery what the dispute with the
coworker was about. When Avery repeatedly responded the
matter was personal, Elly Jr. pointedly remarked ‘‘wasn’t it
about the cookout?’’ When Avery responded ‘‘What cook-
out?’’ Elly Jr. responded ‘‘the cookout you had Saturday.’’
Avery denied knowledge of the cookout and Elly Jr. again
asked what the dispute was about. Avery said ‘‘it was per-
sonal’’ and ‘‘nobody else’s business,’’ and Elly Jr. gave her
a verbal warning and told her ‘‘don’t let it happen again.’’
Elly Jr. acknowledges that he was aware of the initial
1992 organizing campaign but was nonresponsive about his
knowledge of Avery’s involvement in that campaign. His
failure and the failure of Pohl and Kinkelaar to respond to
Avery’s testimony relative to the interrogation supports an
inference that the Respondent’s knowledge of Avery’s union
activities and sympathies, and corroborates Avery’s testi-
mony.
The Union’s second campaign began in March 1993 and
the plant organizing committee consisted of employees Rose
Avery, Diane Cottrill, and Robert Ziefle (Ziefle subsequently
left Respondent’s employ in May 1993). Avery and Cottrill
signed authorization cards, openly wore, used, or displayed
union paraphernalia at work, solicited authorization cards
from coworkers at Respondent’s facility, attended meetings,
advised coworkers of upcoming meetings, openly discusssed
the Union with employees (including Tammy Kinkelaar, the
wife of Respondent’s codirector, Keith Kinkelaar) and talked
regularly with union organizers.
The Union filed a representation petition in Case 8–RC–
14893 on April 15, 1993, seeking to represent Respondent’s
approximnate 80 production and maintenance employees. At
that same time the Respondent retained the services of con-
sultant Dennis Crews, who assisted Respondent in putting to-
gether employee and management teams.
Pursuant to a stipulated election agreement approved by
the Regional Director on May 4, an election at Neff-Perkins
was scheduled for June 4, however, insufficient attendance at
organizing meetings on May 18 and May 2l induced the
Union to request the withdrawal of its petition and the re-
quest was approved by the Regional Director on June 3.
1231NEFF-PERKINS CO.
2 Avery explained that her inquiry was related to a comment made
by Robert Elly Sr. during the Employer’s preelection campaign talks
and that Elly Sr. said that Harrison had something to do with em-
ployees’ wages. Cottrill confirmed that during the campaign in
spring 1993, Elly Sr. had related the employees’ wages to the cus-
tomers.
During April or May, Diane Cottrill and Rose Avery at-
tempted to make purchases from a vending machine that be-
came ‘‘hung up.’’ The machine was shaken and their pur-
chases and several other items fell down. Cottrill gave a
candy bar to a coworker who had originally lost her money
and put a bag of popcorn in her purse. Supervisor Tom
Hinkle brought the incident to both employees’ attention and
when Avery explained to Hinkle that their products had got-
ten stuck in the machine he responded ‘‘Well, you know you
are going to get in trouble for doing that’’ and that ‘‘you and
Diane were caught shaking it.’’ Hinkle did not say who
brought the matter to his attention and he did not tell the em-
ployees that the matter would be recorded in their files or
considered to be a verbal warning. Thereafter, Cottrill and
Avery returned a bag containing money and the popcorn to
management.
In September, Diane Cottrill injured her back on the press
equipment she was operating. (Cottrill and employee Debbie
Kimak credibly testified that the location of the control panel
on this new press caused back strain, particularly on employ-
ees of a certain height.) In late September she was released
by her doctor for light duty. She was immediately returned
to the same press and Cottrill asked Elly Jr. when Respond-
ent would do something about moving the control panels on
the press. Cottrill testified that at this time, Elly Jr. told
Cottrill of the upcoming October 7, 1993 meeting with Cus-
tomer Representative Susan Hanson from the Harrison Divi-
sion of General Motors, one of Respondent’s principal cus-
tomers and one whose product is produced on Cottrill’s
press. Elly Jr. urged Cottrill that the upcoming meeting
would be a good opportunity to bring up her question regard-
ing moving the control panel (testimony that was not refuted
by Elly Jr.).
Meanwhile, beginning in June, monthly meetings had been
set up to encourage communication between hourly employ-
ees and management, and both Crews and others in Respond-
ent’s management encouraged employees to ask questions
and raise concerns during the question and answer portion of
meetings.
In addition to Elly Jr.’s specific invitation to Cottrill to ask
questions at the October 7 meeting, other employees were
urged to ask questions at that meeting.
The third shift (approximately 25 to 30 employees), at-
tended the October 7 monthly meeting in Respondent’s cafe-
teria at approximately 3 p.m. Management Representatives
Elly Jr., Kinkelaar, Feimer, and Joe Marino were present as
were Sales Representative Wesley Hellegers and Consultant
Crews. After an introduction by Crews, Harrison Representa-
tive Susan Hanson presented a talk highlighted with visual
aides. During her presentation, Hanson discussed market
competition, past and future production, and efficiency and
encouraged Neff-Perkins employees to give 110 percent. At
one point during her presentation, Hanson asked the assem-
bled employees what they would look for when buying a
new car and in response, employees yelled out their answers
and comments, without raising their hands. At the conclusion
of the formal presentation the meeting was opened up to
questions from employees, however, prior to this time Co-
director Elly Jr. had left the meeting.
Between four and eight employees asked questions during
the question and answer period and Cottrill asked when the
control panel on the presses would be fixed, noting the cur-
rent setup hurt employees’ backs.
Hanson referred Cottrill’s questions to Bryan Feimer.
Feimer responded they were working on it. Cottrill asked
Feimer for a specific date when the corrective action would
be taken. Feimer responded ‘‘Do you want me to fix your
press or run it for you,’’ and Cottrill replied ‘‘I just want to
get the press fixed so that there aren’t anymore injuries to
our backs.’’ Current employee Debbie Kimak recalled
Cottrill’s question related to redesigning the presses to make
it easier for employees to operate. Kimak testified that her
observation of Hanson’s facial expression showed no indica-
tion that she was outraged or embarrassed by Cottrill’s ques-
tion.
Other employees at the October meeting asked questions
also not directed to or answered by Hanson. Kimak credibly
testified that she asked management why training procedures
weren’t being followed and that this question was answered
by Keith Kinkelaar who indicated they were working on it.
Kimak also stated that employees including herself did not
raise their hands in this question and answer period but were
merely speaking, one after another.
During her presentation Hanson raised the topic of produc-
ing less scrap. Cottrill testified that another employee com-
mented in response, that the high scrap rate was due to train-
ing which ‘‘sucked.’’ Cottrill’s recollection on this comment
was confirmed by Kimak, who testified the comment may
have been made by press operator Melanie Hawn.
Another employee related the subject of scrap production
to maintenance on the machines and Cottrill acknowledged
that she said at the meeting ‘‘if the presses hadn’t run like
crap, that they also would produce less scrap.’’ Avery ac-
knowledged that she commented during this discussion that
the presses were ‘‘running shitty.’’
Avery testified that she asked one question during the
question and answer portion of the meeting, asking Hanson
whether Harrison had anything to do with wages paid at
Neff-Perkins.2 Hanson responded that Harrison did not con-
trol the Respondent employees’ wages.
No attempt was made at the meeting by either members
of Respondent’s management, Sales Representative
Hellegers, or outside Consultant Crews to instruct employees
that certain questions or comments were inappropriate during
this forum could be addressed at another time and the meet-
ing concluded at approximately 4:30 p.m.
Thereafter some employees became concerned that Hanson
had indicated that Harrison was a main buyer that kept the
Resspondent in business and was putting the Respondent on
the spot. They became ‘‘uncomfortable’’ and felt that the
questions by Cottrill and Avery were uncalled for and
thought Hanson was flustered by the questions. In particular,
new employee Hollis Stearns-Grondeski felt that it could re-
sult in an adverse reaction and the loss of her job and she
complained to supervisor Joe Marino. She testified that short-
ly thereafter, that
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[I]t was break time and that when I went upstairs and
I got to talk to Bobby and Bryan and I am not sure—
I think it was Denny was standing up there also. l
looked at them and I apologized to them. I said, I am
sorry what happened. I wasn’t even the one that did
anything, but I apologized that it kind of got out of
hand. That’s when we went back downstairs and some-
how I ended up talking to Bryan and we decided the
best thing to do would be write a note. We wanted to
apologize—I wanted to apologize to her and I wasn’t
quite sure how, and he said, write a note.
The actual text of the note is as follows:
First we would like to thank you for a very inform-
ative meeting. It was enlightening. We now have a
much better insight as to how important these parts are
and an overall better understanding of the auto industry
and the part we play in it.
On behalf of the third shift employees we would like
to extend our sincere apologies. We believe that he
meeting somehow got off base. We hope that you were
not offended in any way and that you will visit our
company again soon.
and it was signed by most of the third-shift employees, in-
cluding Avery.
Before reporting to work October 8, Cottrill met with
union organizer Ray Lewis and delivered several signed au-
thorization cards. At the start of their shift, Cottrill and
Avery were called to meet seperately with Elly Jr. and Su-
pervisor Joseph Marino. Each was accused of jeopardizing
one of their largest accounts, the vending incident was men-
tioned, and each was terminated. Each of their files contain
essentially the same statement of termination as follows:
During a monthly meeting with a guest speaker form
Harrison Division of General Motors, one of Neff-Per-
kins Company’s largest customers, employee (Dianne
Cottrill, C/N 993) potentially jeopardized Neff-Perkins
relationship with Harrison by acting in an extremely
negative manner. Through questions and accusations
employee unjustifiably challenged the operation of both
Neff- Perkins and Harrison and their Customer-Supplier
relationship. After reviewing employees files and as-
sessing this and other offenses, Neff-Perkins Company
is terminating the employment of Dianne Cottrill, C/N
933 effective 10/08/93.
This was prepared by Bob Elly Jr. and he described it as his
summary of the investigation and the reason for termination.
During Cottrill’s termination meeting, Elly Jr. told Cottrill
that she and Avery had jeopardized one of their largest ac-
counts and the jobs of their coworkers. Cottrill testified that
she replied that that had not been her intent and that she felt
she had a right to ask questions. Ely Jr. noted that while her
performance and attendance were excellent, he, Feimer,
Kinkelaar, Pohl, and Elly Sr. had unanimously agreed she
and Avery were going to be discharged.
During Avery’s termination interview Elly Jr. said ‘‘Do
you know that you jeopardized our contract with Harrison
Division?,’’ and Avery responded that she did not see how
she had done so. Elly Jr. said that ‘‘the questions you asked
weren’t important at that time for that kind of meeting,’’
Avery responded, ‘‘We were told to ask questions as long
as they pertained to our job and Harrison and that’s what we
did,’’ and Elly Jr. responded ‘‘Your question that you asked
wasn’t appropriate for this meeting,’’ Avery said ‘‘Bobby, I
only asked one question’’ and he replied ‘‘I felt that you and
Diane jeopardized our contract and we have to let you go.’’
When Avery attempted to explain to Elly Jr. that her one
question related to Elly Sr.’s comment to employees at a ear-
lier meeting, he reiterated that the question was inappropri-
ate.
Respondent maintained a progressive disciplinary system
and neither Avery nor Cottrill had previously received any
written warning or suspension. Prior to their termination,
they were both unaware that a memorandum to the file had
been included in their record relative to the vending machine
incident.
III. DISCUSSION
In a discharge case of this nature, the Board applies a cau-
sation test that requires that the General Counsel meet an ini-
tial burden of presenting sufficient evidence to support an in-
ference that the employee’s union or other protected, con-
certed activities were a motivating factor in the employer’s
decision to terminate.
Here, the Respondent initially argues that there was no
concerted activity by Cottrill and Avery (especially with co-
workers), that their conduct was not protected, and that man-
agement had no knowledge that Cottrill and Avery were in-
volved in the union campaign.
First, I credit the testimony by both Cottrill and Avery
about their organizational activities, including Avery’s de-
scription of her 1992 interrogation by Elly Jr. about attending
a cookout that was a union organized event, and they were
two of the three members of the 1993 organizing committee
who openly promoted the Union at the plant and in the pres-
ence of the wife of one of Respondent’s codirectors. The Re-
spondent clearly was aware of the Union’s representation pe-
tition and I find that Elly Jr.’s testimony that he tried to ‘‘ig-
nore’’ ‘‘rumors’’ about the organizing campaign is inherently
incredible and does not refute the clear implications that he
and other members of management knew of the union activ-
ity and that both Avery and Cottrill were prominently in-
volved with the campaign.
Here, the record shows that the alleged discriminatees not
only engaged in open union activity but also engaged in con-
certed activity. The fact that Cottrill had a personal reason,
because of her back injury, that related to her conduct and
statements at the meeting does not affect the otherwise con-
certed nature of her comments see Ohio Vallev Graphic Arts,
234 NLRB 493 (1978). Here, the principal questions asked
by Cottrill concerned the arrangement of the controls on
equipment used to produce parts for the Harrison Division
customer, causing back strain, and poor maintenance of
equipment causing or contributing to higher scrapage prob-
lems, and the Avery area of questions concerned this cus-
tomer’s relationship with the setting of the employees wage
rate, and a comment related to the quality of the equipment,
all areas of common concern to all employees.
Despite the showing that Cottrill was the apparent pre-
dominant questioner, the Respondent placed Avery on a joint
and equal footing with Cottrill in assessing blame and in im-
1233NEFF-PERKINS CO.
posing equally severe and maximum discipline, termination.
Clearly, the Respondent lumped Cottrill’s and Avery’s ac-
tions together (further corroborating the likelihood that it
considered them together because it knew they were the re-
maining employed members of the Union’s organizing com-
mittee) and, in both its testimony and its brief, the Respond-
ent consistently referred to Cottrill and Avery jointly as
‘‘they’’ or ‘‘these two.’’ More specifically, consultant Crews
testified that prior to the October 7 meeting, Cottrill told him
‘‘We are ready for them’’ (referring to questions), an appar-
ent reference to joint action. In fact, when the Respondent’s
counsel specifically questiond Crews, Crews answered:
Okay, it seemed like a concerted effort was underway
to use this situation to embarrass management, that was
my perception.
Under these circumstances, l find that Cottrill and Avery
engaged in concerted activity and it was not necessary for
the other employees to accept their challenge for group ac-
tion. Moreover, the employees’ subsequent letter to Hanson
does not act as a repudiation of the activity that would
disolve the concerted character of their action. See Circle K
Corp., 301 NLRB 932 (1991). In addition, current employee
Debbie Kimik also said that if you were over 5 feet 4 inches
you had to scrunch down to operate the press and it would
cause a lower back problem and she credibly testified that
employee Melanie Halm commented on the press and she or
someone else remarked that some machine ‘‘sucks.’’ Accord-
ingly, each of these actions tends to endorse Cottrill’s and
Avery’s concerns over various working conditions.
As will be discussed further below, the record here other-
wise fails to show that the alleged discriminatee engaged in
any conduct that was so egregious as to take it outside the
protection of the Act and, accordingly. I find that their con-
certed activity was a motiviating factor in management’s de-
cision. According1y, the testimony will be discussed and the
record evaluated in keeping with the criteria set forth in
Wright Line, 251 NLRB 1083 (1983). See NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983), to con-
sider Respondent’s defense and, in the light thereof, whether
the General Counsel has carried his overall burden.
Respondent’s principal defense is based on its contention
that both employees were engaged in insubordinant conduct,
used profane and insolent language, and that they were prop-
erly discharged because their disloyalty to the Respondent in
front of an important customer threatened the economic well-
being of the Company and jeopardized their coworkers’ jobs.
Here, in effect, the Respondent is claiming that Cottrill
and Avery were ligitmately discharged for making obnox-
ious, profane, and disloyal statements that rendered their con-
duct unprotected. As stated by the Board in Consumers
Power Co., 282 NLRB 130 (1986):
The Board has long held, however, that there are cer-
tain parameters within which employees may act when
engaged in concerted activities. The protections Section
7 afford would be meaningless were we not to take into
account the realities of industrial life and the fact that
disputes over wages, hours, and working conditions are
among the disputes most likely to engender ill feelings
and strong responses. Thus, when an employee is dis-
charged for conduct that is part of the res gestae of pro-
tected concerted activities, the relevant question is
whether the conduct is so egregious as to take it outside
the protection of the Act, or of such a character as to
render the employee unfit for further service. [Citations
omitted.]
Here, the conduct engaged in is not shown to be so egre-
gious as to lose the protection of the Act. The alleged state-
ments of both Cottrill and Avery were not only comments
by the two principal union activists but also were statements
made in the context of questions regarding equipment oper-
ations, working conditions, and pay. While some of the al-
leged conduct may have been rude and profane, I specifically
find that Avery’s apparent rudeness in saying to codirector
Bryan Feimer ‘‘hushup and sit down’’ when he started to in-
terrupt her complaint (as credibly testified to by employee
Stearns-Grondeski, who was called by the Respondent and
by employee Leslie Bennett, called by the General Counsel),
was typical of the way she usually acted (as the ‘‘jokester’’
of the bunch), according to witness Bennett. Also, her com-
ment that something was ‘‘shitty’’ was not egregious in the
context of this workplace meeting (others at the meeting in-
cluding Melanie Halm said something ‘‘sucks’’) and such
comments were not uncommon in group settings of employ-
ees and managers according to the credible testimony of em-
ployee Debbie Kimik (who also credibly testified that none
of the managers at the meeting advised any employees that
their questions were inappropriate)
I also specifically find that the behavior and comments at-
tributed to Cottrill may have appeared as described by Re-
spondent’s witness Kuhns to have ‘‘too much snappiness’’
and as ‘‘complaining too much’’ or as ‘‘uncalled for’’ by
Respondent’s witness Stearns-Grondeski, but were not egre-
gious in the context of this workplace meeting.
Lastly, I also find that a remedy to the employees’ as-
serted behavior was certainly within the control of several of
Respondent’s managers and Consultant Dennis Crews as they
were participants in some of the exchange yet they made no
qualifying statements to limit or control the nature of the ex-
changes at the time and I find that their silence in this re-
spect indicates that they tolerated this conduct and that no
clearly egregious behavior occurred.
After the fact, however, several emloyees began to express
their concerns that Customer Representative Hanson may
have been offended by the experience and that it could affect
her decisions about business with the Respondent and their
job tenure.
Respondent’s Consultant Crews, and Sales Representative
Wesley Hellegers gave management their opinions of the ef-
fect of the event which I find to be highly speculative and
overblown and I find that management’s concurance and en-
dorsement of their conclusions are not shown to be supported
by the record and I find that it is pretextual in nature. The
record shows that at the most Customer Representative Han-
son appeared ‘‘flustered’’ at the tone of the questions (re-
ferred to or answered not by her but by management) and
that she just observed and listened, ‘‘kind of joked around
and said we were hard on upper management or something
like that’’ and she ‘‘was commending management for put-
ting themselves on the spot and being up their with the ques-
tion and answer session.’’
Hanson was not called as a witness and I otherwise find
that it is just as likely that she and her employer could have
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In accordance with our decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after January 1,
1987, shall be computed at the ‘‘short-term Federal rate’’ for the un-
derpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest on amounts accrued prior to January 1, 1987 (the
effective date of the 1986 amendment to 26 U.S.C. § 6621), shall
be computed in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
4 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.
been more favorably impressed by the employees’ willing-
ness to participate in problem solving than negatively af-
fected by the apparent crudness in their expression of opin-
ion, especially in view of the employees’ letter which re-
ferred to an extension of their ‘‘apologies’’—‘‘that the meet-
ing somehow got off base.’’
Here, the Respondent purports to have investigated the
matter yet it did so essentially by getting statements from
Crews, Helleger, or several managers. It made no attempt to
get any information from Cottrill and Avery and presented
them with conclusionary results that they were being termi-
nated without allowing them any meaningful opportunity to
give their side of the story. Here, a full investigation could
have revealed that employees such as Debbie Kimik asked
a question about why training procedures weren’t being fol-
lowed, said they were getting a lot of new people that
weren’t being trained properly, and asked what could be
done about it (Supervisor Keith Kinkelaar responded they
would see what they could do about it), that Melanie Halm
had said something ‘‘sucks,’’ and that Avery’s participation
in the questions was similiar and abbreviated in extent.
The Respondent, however, immediately placed Avery in
equality with Cottrill (who was predominant in the question-
ing), disregarding the questions or remarks of other partici-
pants and disregarding or not recognizing that management
itself had solicited and encouraged employee participation in
a question and answer session for that meeting.
Here, I am persuaded that the Respondent identified Avery
with Cottrill together because of their joint union activity and
seized upon this incident as an opportunity to rid itself of the
two principal union supporters.
As pointed out by the Court in Transportation Manage-
ment, supra:
[A]n employer cannot simply present a legitimate rea-
son for its action but must persuade by a preponderance
of the evidence that the same action wouId have taken
place even in the absence of the protected conduct.
Here, the Respondent disregarded the established progres-
sive description system and immediately discharged the two
principal union supporters for the manner in which they en-
gaged in the concerted activity of asking questions or making
comments about terms of employment and working condi-
tions. As discussed above, the employees’ conduct was not
so egregious as to take it outside the protection of the Act
and I find that the Respondent otherwise has failed to show
that Cottrill and Avery would have received such extreme
discipline absent their union and concerted activities. The
General Counsel otherwise has met its overall burden of
proof and I further conclude that the Respondent’s termi-
nation of these employees violated Section 8(a)(1) and (3) of
the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By discharging Dianne R. Cottrill and Rose Avery on
October 8, 1993, Respondent engaged in an unfair labor
practice in violation of Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, it is recommended that the Respondent be or-
dered to cease and desist therefrom and to take the affirma-
tive action described below which is designed to effectuate
the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate Dianne
Cottrill and Rose Avery to their former jobs or a substan-
tially equivalent position, without prejudice to their seniority
or other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suffered
because of the discrimination practiced against them by pay-
ment to them of a sum of money equal to that which they
normally would have earned from the date of the discrimina-
tion to the date of reinstatement, in accordance with the
method set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987),3 and that Respondent ex-
punge from its files any reference to the discharges and no-
tify them in writing that this has been done and that evidence
of this unlawful discipline will not be used as a basis for fu-
ture personnel action against them.
Otherwise, it is not considered necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Neff-Perkins Company, Middlefield,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging any employee for activity protected by
Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Dianne R. Cottrill and Rose Avery immediate
and full reinstatement and make them whole for the losses
they incurred as a result of the discrimination against them
in the manner specified in the remedy section of the deci-
sion.
(b) Expunge from its files any referance to the discharges
of Dianne R. Cottrill and Rose Avery on September 8, 1993,
and notify them in writing that this has been done and that
evidence of this unlawful discharge, will not be used as a
basis for future personnel actions against them.
1235NEFF-PERKINS CO.
5 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.’’
(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 analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Middlefield, Ohio, facility copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered 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.