Dreis & Krump Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1975

221 N.L.R.B. 309 (N.L.R.B. 1975)

DREIS & KRUMP MANUFACTURING, INC. 309
Dreis & Krump Manufacturing, Inc. and Joseph P.
Mayer. Case 13-CA-13047
November 4, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On March 31, 1975, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2- of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Dreis and Krump Manufacturing, Inc., Chica-
go, , Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 1(c):
"(c) In any other manner interfering with, restrain-
ing, _or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER PENELLO, concurring:
I agree with my colleagues that it would not accord
with, Board policy to defer to the decision of the
I
In view of our agreement with the Administrative Law Judge that the
arbitrator's award finding that Mayer was discharged for cause is repugnant
to the purposes and policies of the Act, and that he was in fact discharged
for engaging in, Section 7 protected rights, we find it unnecessary, and do
not rely, upon the Administrative Law Judge's conclusion that the Board is
bound by any of the arbitrator's factual findings. The issues were fully
litigated in the instant proceedings, and the record developed contains all
the facts necessary to -support the finding that Mayer was discriminatorily
discharged. In these circumstances the arbitrator's factual findings are
irrelevant.
2 In alleging that Mayer was discriminatorily discharged the General
Counsel relied upon two separate theories- (1) he was discharged for the
protected concerted activity of distributing permissible literature, and (2) he
221 NLRB No. 46
arbitrator who ruled that Respondent discharged
Mayer, for cause, as his ' award, under Spielberg
Manufacturing Company, 112 NLRB 1080 (1955), was
"clearly repugnant to the purposes and policies of the
Act." 3 I rely solely on the fact that the arbitrator in
reaching the legal conclusion' that "Mayer was not
discharged for engaging in `concerted activities for
the purpose of collective bargaining or other mutual
aid or protection' within the meaning of Section 7 of
the National Labor Relations Act, as amended,"
specifically construed the Act, but ignored a long line
of contrary Board and court precedent.4
In determining whether it would effectuate statuto-
ry policy to give binding effect to an arbitration
proceeding, the Board does, not require that the
arbitrator must have ruled on the issues in the same
way the Board would have done; it is enough to
satisfy the Board's policy standard that the arbitra-
tor's decision and remedy are not palpably wrong. As
the Board stated in International Harvester Company,
138 NLRB 923, 929 (1962), enfd. sub nom. Thomas D.
Ramsey v. N.L.RB., 327 F.2d 784 (C.A. 7), cert.
denied 377 U.S. 1003 (1964):
To require more of the Board would mean
-substituting the Board's judgment for that of the
arbitrator, thereby defeating the purposes of the
Act and the common goal of national labor policy
of, encouraging the final adjustment of disputes,
"as part and parcel of the collective bargaining
process." 23
'23 'United Steelworkers of America v Warner & Gulf Navigation
Company, 363 U.S. 574, 578.
Thus, where the arbitrator reaches a legal conclusion
that is not inconsistent with Board precedent and is
arguably, consonant with the purposes, of the Act, I
would defer to the award even, though I might well
have reached a different result. But here, however,
the arbitrator has reached "a legal conclusion wholly
at odds with the Act"5 and therefore it will not
effectuate the policies of the Act to respect his award.
The record clearly shows that Mayer was discrimi-
natorily discharged for engaging in Section 7
protected rights. Mayer's action, as set forth more
fully in the Administrative Law 'Judge's Decision,
was that he distributed leaflets to his fellow employ-
was discharged pursuant to an unlawful no-solicitation rule. Since we agree
that Mayer was discnunnatorily discharged for engaging in protected
concerted activity, we find it unnecessary to pass upon the' General
Counsel's alternative theory that he was also discharged for violating the
unlawful no-solicitation rule. Such a conclusion would not change in any
major aspect the remedial aspects of the case, and would in our opinion be
redundant.
3 Spielberg, supra, 1082.
4 Radio Television Technical School, Inc. t/a Ryder Technical Institute, 199
NLRB 570 (1972).
5 Hawaiian Hauling Service, Ltd, 219 NLRB No. 126 (1975), last par of
the dissenting opinion.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees on his own time on company property prior to
the beginning of shift operations, which described his
grievance concerning alleged negligence and improp-
er supervision, by his foreman, attributed similar
conduct to other supervisors, and appealed for
support or attention of other employees. The leaflets
were a protest concerning Mayer's' personal treat-
ment and directed at the alleged poor quality of
supervision as it related to working conditions
involving training, safety, and discipline.
It is well established that the identity, capabilities,
and quality of supervision, at least where, as here, the
quality of that supervision has an impact upon the
employees' job interest and their ability to perform
the task for which they were hired, are the legitimate
concern of employees.6 Moreover, the activity of a
single employee in enlisting the support of his fellow
employees for their mutual aid or protection is as
much concerted activity as is ordinary group -activi-
ty,7 whether or not such activity may have been
unwise, • unreasonable, or unnecessary.8 In this
instance the foreman's alleged failings presented
potential safety and training problems and also
directly related to the manner in which employees
were disciplined, a matter crucial to job security.
Nothing in Mayer's conduct caused him to forfeit
the Act's protection. The tone and contents of the
leaflets were neither so flagrant, violent, or extreme
as to render Mayer unfit for service. Nor is it relevant
that Mayer was violating the terms of the contract
which specifically prohibited employees from engag-
ing in such distribution of leaflets without permission
from the Respondent, as a union cannot waive the
rights of employees to engage in distributions in
nonwork areas and on nonwork time .9 Neither was
Mayer attempting' to foment a work stoppage or
slowdown. Thus, Mayer did not picket the plant
while, making his distribution and he entered the
plant and reported to his work station before the
start of the shift upon completing that distribution.
Finally, Mayer was not attempting to bypass his
bargaining agent and was, not seeking to negotiate
separate terms and conditions in contraventionto the
existing bargaining agreement and the grievance
procedure contained therein. Rather, he was merely
attempting to make Respondent and employees
aware of the nature and extent of his dissatisfaction,
and to call the attention of employees to matters of
serious and legitimate concern to fellow employees
such as safety, improper training, and discipline.
In these circumstances, I conclude that Mayer was
engaged in protected, concerted activity as it has
been repeatedly defined in numerous Board and
court decisions, and that his discharge therefore
violated Section 8(a)(1) and (3) of the, Act. Accord-
ingly, the arbitrator's decision which reached conclu-
sions totally inconsistent with these precedents was
repugnant to the policies of the-Act so that-deferral
pursuant to the Spielberg doctrine is not warranted.
6 Leslie Metal Arts Company, Inc, 208 NLRB 323 (1974), enfd 509 F.2d
811 (C.A 6, 1975); Cubit Systems Corporation, ,194 NLRB 622 (1971);
Guernsey-Muskingum Electric Cooperative, Inc., 124 NLRB 618 (1959), enfd.
285 F.2d 8 (C.A 6, 1960); Okla-Inn, d/b/a Holiday Inn of Henryetta, 198
NLRB 410 (1972); Plastilite. Corporation, 153 NLRB 180 (1965), epfd. 375
F.2d 343 (C.A. 8, 1967)
7 Owens-Corning Fiberglas Corporation, 172 NLRB 148 (1968), enfd 407
F.2d 1357 (C.A 4, 1969); Ross Valley Savings & Loan Association, 194
NLRB 270 (1971)
s Detroit Forming, Inc, 204 NLRB 205 (1973); NL.R.B. v. Washington
Aluminum Co., 370 U.S 9 (1962).
NLRB v. Magnavox Co., 416 U.S. 952 (1974)
APPENDIX
NOTICE To EMPLOYEES
POSTED 'BY ORDER OF THE-
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After, a trial at which all sides had the opportunity to
present their evidence, the National-Labor Relations
Board' has found that we violated the National Labor
Relations Act, and has ordered us to post this notice
and to comply with what it says.
The Act,gives all employees these rights:
To engage in self organization ' -
To form, join, or help unions'
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection; and
To refrain from' any and all these things.
WE WILL NOT promulgate' or maintain any rule
which prohibits our employees from engaging in
solicitations on nonworking time in regard to
matters related to any of these rights.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee : in regard to hire,
tenure of employment, or any term or condition
of employment for engaging in union -or other
protected activity.
WE WILL NOT in any other manner ,interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them by Section 7 "bf the, Act.
WE WILL offer toreinstate,Joseph P. Mayer to
his former job or, if that job no longer exists, to a
substantially equivalent job and we will make him
whole for any 'earnings lost • because we dis-
charged him.
DREIS & KRUMP MANUFACTURING, INC. 311
WE WILL rescind our present no-solicitation
policy. DREIs & KRUMP
MANUFACTURING, INC.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
case was heard by me on January 22 and 23, 1975, in
Chicago, Illinois, based on a charge filed by Joseph P.
Mayer, an individual, on February 22, 1974,, and a
complaint which issued on July 25, 1974 (all dates
hereinafter are 1974). The complaint alleged that Dreis &
Krump Manufacturing, Inc. (herein called Respondent)
violated Section 8(a)(1) and (3) of, the National Labor
Relations Act, as amended, by discharging Joseph P.
Mayer (hereinafter called Mayer) because of his union or
protected concerted activities and/or because he breached
an allegedly invalid no-solicitation rule, and independently
violated Section 8(a)(1) by maintaining 'and enforcing such
a rule.
A number of pretrial motions and other pleadings were
filed and ruled upon herein. Only those relevant to this
decision will be detailed. A motion to defer to arbitration
and stay proceedings was, filed by Respondent on August
1. This motion, together with General Counsel's opposition
thereto and Respondent's reply to that opposition, subse-
quently filed, were referred to the Division of Judges on
August 5. Administrative Law Judge Arthur Leff granted
Respondent 's motion and stayed further proceedings
pending resolution of the arbitration proceeding, then
pending before Arbitrator Millard Cass.
Arbitrator Cass' Decision issued on August 27,, and
concluded that Mayer had been discharged for just cause.
Respondent, on September 9, filed a motion to dismiss
complaint on basis of arbitration award, asserting ' that
deferral to the'arbitral process was warranted pursuant to
the Board's Spielberg doctrine (Spielberg Manufacturing
Company, 112 NLRB 1080-(1955)). General Counsel filed
an opposition thereto and argued that Spielberg deferral
was inappropriate as the Arbitrator's decision was repug-
nant to the policies and purposes of the Act and because it
failed to deal with the question of whether Respondent had
maintained , and enforced an invalid no-solicitation rule.'
Respondent's motion to dismiss, technically a motion for
summary judgment, was referred to the Board pursuant to
Section 102.24 of the Board's Rules and Regulations, on
September 16. On November 11, the Board issued its Order
denying Respondent's motion and stating that the issues
raised by the various pleadings, "such as the legality of the
Respondent 's no-solicitation rule and whether or not the
Board should defer to the arbitration award under its
Spielberg doctrine, present issues of fact and law which
may better be resolved after a hearing conducted before an
Administrative Law Judge." Pursuant to that Order, this
hearing was held. '
i In his opposition, it appeared that General Counsel accepted the
arbitrator's findings that Mayer was not discharged for violation of a no-
solicitation rule and no longer so contended . At the hearing, however,
General Counsel reasserted his contention that Mayer was discharged
pursuant to an invalid no-sohcitation rule. In view of my conclusions in
regard to the weight to be accorded the arbitrator's findings of fact, a
The record in this case includes the transcript of the
hearing before the arbitrator, the arbitration decision, the
,transcript and exhibits in the hearing;held before me, and
briefs from General Counsel and Respondent. Upon the
entire record and my observation of the witnesses and their
demeanor, I make the following: - -
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation, is engaged at
Chicago, Illinois, 'in the business of manufacturing metal
forming equipment. During the past calendar year, a
representative period, in the course and conduct of its
business operations, Respondent , manufactured , and
shipped directly from its plant located within the State of
Illinois to points located outside the State of Illinois goods
valued in excess of $1 million.; The complaint alleges,
Respondent admits,, and I find that Respondent, is an
employer engaged in commerce, and in operations affect-
ing commerce, within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that District 8, International Association of Machinists and
Aerospace Workersr,,`AFL-CIO, herein the' Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES`
A. The Issues
The principal issue herein is whether the aribitrator's
decision is repugnant to the policies of the Act, so that
deferral pursuant to the Spielberg doctrine would not be
warranted. General Counsel has alleged it to be repugnant
because the arbitrator concluded that it was proper for
Respondent to have terminated` Mayer for distributing a
particular leaflet to his fellow employees, conduct which
General Counsel - contended' was union or protected,
concerted activity. General Counsel further contended, that
it was repugnant because it failed to conclude that Mayer
was discharged for violating an invalid no-solicitation rule.
At issue also is the validity ofthat rule.
B.^ The Facts
Joseph P. Mayer began his employment with Dreis &
Krump in May 1972 as,a shipping clerk. In July 1973, he
bid- on and received the position of milling machine
operator.2 He was a member of - the_ Union, which. has
represented Respondent's production, and maintenance
employees - for a number of, years, but held no office
resolution as to the effect of General Counsel's admission is not required
2 Mayer claimed, and the arbitrator found, that he was a "trainee."
Respondent denied having a "trainee" category . The question of whether or
not Mayer was a "trainee" would be relevant, possibly, 'to the merits of his
grievance, but the merits of that grievance and hence his alleged "trainee"
status are not in issue here. - -
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therein . His foreman in the machine shop was Joseph
Mirabella.
On January 16, Mirabella assigned ajob to Mayer giving
him the blueprints and pieces of metal Mayer testified he
set up the job, without instructions , taking longer than such
a setup should have taken, while Mirabella walked around
and past him without comment Upon commencing the job
after the setup , several of the cutters and collars broke.
Mayer reported the breakage to Mirabella.
Before the end of the workday, Mirabella gave Mayer a
"pink slip ." The slip , captioned "WARNING AND
REMARKS ," was checked in the box for carelessness, and
stated;
Joe had made a set up on the mill machine to mill hand
brake castings and he ran the arbor into the job in turn
he broke 2 milling cutters and 5 arbor collars.
While there was testimony to the effect that repetitive
warnings for the same offense could lead to discharge, it
appears that Respondent maintains no formal system for
progressive discipline . As found by the arbitrator , however,
an employee might properly interpret the pink slip as a
warning . According to the uncontradicted testimony of
Mayer , Mirabella told him that the pink slip was not a
warning, that it was just a record to show that the cutters
were broken.
production official, and Personnel Director James Hagger-
ty. The Union read its grievance, set forth above, and
Mayer distributed copies of a personal statement of the
grievance. Mr. Haggerty volunteered to make additional
copies of Mayer's statement for this distribution. Mayer
then read aloud the statement, as follows.
The actions of J. Mirabella, machine shop foreman,
with respect to me, J. Mayer, milling machine trainee,
both before and after an event which occurred on
January 16, 1974 (And in which 2 cutters were broken)
constitute grounds for this grievance.
I maintain that J. Mirabella, in issuing the Employee
Warning Record or "Pink Slip", was attempting, with
malice, to shift the blame for his own negligence and
carelessness onto me. The conditions immediately
before and after the event verify my statement.
(1) While it ought to be the duty of a normal,
ordinary foreman to closely supervise an inexperienced
employe when setting up a complex four-cutter job,
especially when the employe has had no experience
with multiple cutters, J Mirabella, knowing that I had
no such experience assigned to me the job in question
and then with gross negligence and carelessness failed
to provide supervision, instruction or assistance to me.
Mayer took the pink slip to his union steward, Joseph , : * «
Bretz, and indicated that he wanted to file a grievance. On
the following day, Mayer, Bretz, and Richard Flood, shop
chairman , held a preliminary grievance meeting. The union
officials, agreeing with Mayer that he had not been
careless , requested that Mirabella remove the pink slip
from Mayer's record. Mirabella stated that he would be
willing to forget the issue but could not remove the pink
slip from the record. On January 29, a formal grievance
was filed on behalf of Mayer. The grievance was described
as follows:
Violation of Section 10.9-Cautions & warnings. Joe
Mirabella (Dept. 50, foreman) arbitrarilly [sic] issued a
warning notice to J. Mayer for carelessness, when he
knew a problem existed prior to the actual machining
phase. The approx. time for this job is 1-1/2 hrs., J.
Mayer was approaching 6 hrs. While Joe Mirabella was
continually walking up and down the isle [sic] and
seeing the excessive time being taken, made no effort to
determine if a problem existed. The Union contends
that Joe Mirabella was negligent to both Joe Mayer
and the Co. Negligent productionwise, and more
importantly safety-wise.
It is the responsibility of every foreman to supervise
his Dept. in a safe, efficient & productive manor [sic].
Joe Mirabella failed in these three areas.
The Union demands the withdrawal of the warning
notice from the employment record, and reminds the
Co. of its stated policy of uniform training on the job of
all who enter a new classification.
A second step grievance meeting was held on February
19. Present in addition to Mayer, Bretz, Flood, several
union committeemen, and Mirabella, were R Witkowski, a
(4) The job in question takes about one and one-half
hours to set up. J. Mirabella walked by the machine six
times, peered at the work, saw that I was taking five
hours to make the set up but did not stop to inspect or
make measurements of the set up, even though it is the
job of an ordinary, normal foreman to do so. Also, note
that the beginning rate I was being paid by the
company demonstrates my beginner status.
(5) Furthermore, J. Mirabella, with malice, failed to
correctly report the actual circumstances to his superi-
or. But rather he reported only that part which relieve
him of any blame and shift his negligence and
carelessness onto me. An ordinary, normal foreman
would come forward and accept the responsibility for
his own actions. But J. Mirabella shifts the blame for
his actions onto me and refuses to remove the
humiliating burden of these actions from me.
I find J. Mirabella guilty of malice, gross negligence,
carelessness and dissembling.
I recommend that:
A) The "Pink Slip" be immediately removed
from my record. I
B) Suitable and adequate compensation be
made to me for the humiliation I have been
forced to endure.
C) J. Mirabella be given a "Pink Slip" for
negligence and carelessness.
Mayer received no admonition from the employer, at this
time, for the language he used in his personal statement.
The grievance was discussed but was not resolved.
DREIS & KRUMP MANUFACTURING, INC. 313
In late afternoon hours following this meeting. Mayer
prepared an additional statement and had approximately
100 copies of both statements reproduced.3 That statement
read:
ATTENTION ALL WORKERS
This case of J. Mayer vs. J. Mirabella concerns ALL
workers. We must not think that Mirabella is just
peculiar. The company knows what Mirabella does and
supports him and all other foreman who act like him.
WE DON'T HAVE TO TAKE IT!!!
On the morning of February 20, Mayer took the two
statements , stapled together, and distributed them, on
company property, at the driveway entrance to the parking
lot, to employees entering work. This activity occurred
from 6:30 to 6:50 a.m. The distribution did not interfere
with any production. Mayer then punched in and reported
to work prior to the start of his shift. Shortly after the
distribution, Flood told Mayer that he was in trouble and
that he probably would be terminated. Mayer's reply
somewhat ambiguously acknowledged that fact.
Upon receipt of Mayer's distribution, Respondent
immediately determined to discharge him. He was called to
a meeting, together with representatives of the Union, and
was told that he was being discharged for taking action
which bypassed the contractual grievance procedure,
distributing a document to other employees which attacked
a supervisor in an inflammatory and derogatory manner,
and urging employees to engage in a walkout or slowdown.
Contradictory testimony was offered concerning whether
Mayer was told that he was being discharged for violating
a, no-solicitation rule or merely for distributing this
document. Similarly, contradictory testimony was adduced
as to whether or not Mayer anticipated his discharge and
made appointments in regard thereto for that day. For the
reasons set forth in the following section, I find it
unnecessary to resolve these inconsistencies.
'Mayer filed complaints or charges against Respondent
with several governmental and private agencies, protesting
his discharge.
C. The Arbitration Proceeding and the Effect To
Be Accorded the Arbitrator's Factual Findings
The Union filed a grievance in regard to Mayer's
discharges, which ultimately went to arbitration, pursuant
to the contract, on July 2. Both the Employer and the
Union were represented by counsel. Both agreed that the
arbitration proceeding was fair and regular and it is clear
that all parties had agreed to be bound, at least as to those
issues decided by the arbitrator. The question of the
validity of the alleged no-solicitation clause, raised by the
complaint herein , was not raised by the grievance nor
presented to the arbitrator except as it was embodied in the
contention that Mayer was discharged for violation of an
invalid rule. It was not litigated. As will be discussed
herein, the arbitrator concluded that Mayer was not
discharged for violation of a no-solicitation rule and hence
did not reach the question of the rule's validity. Thus, it is
only the question of whether the decision of the arbitrator
was "clearly repugnant to the purposes and policies of the
Act," that brings Mayer's discharge before this forum. See
Electronic Reproduction Service Corp., 213 NLRB 758
(1974); Spielberg Manufacturing Company, 112 NLRB 1080
(1955).
Having asserted that the arbitral decision failed to meet
the repugnancy standard of Spielberg, General Counsel
sought to relitigate entirely the facts of Mayer's discharge.
Respondent objected to the duplicative litigation but also
sought to relitigate certain findings of the arbitrator,
particularly the question of Mayer's motivation and good
faith. I sustained Respondent's objections to duplicate
litigation and, essentially, restricted the parties to litigation
concerning the alleged repugnancy of the award. Offers of
proof were made in regard to whether Mayer was
discharged in violation of an invalid no-solicitation rule
and whether Mayer had purposely precipitated his own
discharge because he had been denied an extended leave of
absence and sought to be discharged under circumstances
such as would permit him to maintain an action to regain
his employment with backpay. (Both of these issues had
been answered in the negative by the arbitrator.)
The offers of proof were rejected and those rulings are
adhered to herein. It does not appear that the Board has
spoken definitively concerning the extent of litigation to be
permitted or the effect to be given the factual findings of
the arbitrator in a case such as this where only the
conclusions of the arbitrator are being questioned. Howev-
er, the Board's recent decision in Electronic Reproduction
Service Corp., supra, is highly instructive. In that case, the
Board retained the Spielberg tests for deferral and expressly
overruled those precedents which held that deferral would
be denied where the arbitrator's decision or the evidence
failed to show that the statutory issue of discrimination had
been presented in the arbitration proceeding. (See, e.g.,
Airco Industrial Gases-Pac6flc, a Division of Air Reduction
Company, Incorporated 195 NLRB 676 (1972); Yourga
Trucking, Inc., 197 NLRB 928 (1972), and cases cited in
each of those decisions.) In so doing, the Board emphasiz-
ed the evolving nature of its approach to the deferral
question and pointed out that its policy "was to give full
effect to the parties' own voluntary agreement to submit
the dispute to arbitration `rather than permitting such
agreements to be sidestepped and permitting the substitu-
tion of our processes, a forum not contemplated by their
own agreement.' " Electronic Reproduction Service, supra,
quoting from Collyer Insulated Wire, a Gulf and Western
Systems Co., '192 NLRB 837, 842 (1971). The Board further
stated that, in deciding Spielberg and Collyer, it "sought to
discourage dual litigation and forum shopping by encour-
aging the parties to employ initially the contractural
procedures for dispute settlement which they have created
[Collyer], and to permit the dispute resolution achieved
through those procedures to stand in the absence of
procedural irregularity or statutory repugnancy
[Spielberg]. " Electronic Reproduction Service, supra.
3 This finding is consistent with the uncontradicted testimony and the
arbitrator's factual findings. I reject Respondent's contention that Mayer's
testimony concerning the preparation of these statements lacks credibility
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the instant case , the parties had an unhindered
opportunity to litigate all of the facts before the arbitrator,
those facts were litigated, the arbitrator was aware of the
issues including those pending before this Agency, and the
arbitrator's factual findings were supported by evidence in
the record before him. No newly discovered or previously
unavailable evidence was adduced before me. In such
circumstances , I conclude that the policies favoring
arbitration and discouraging dual litigation are best
effectuated by accepting the arbitrator's factual findings.
Separating the arbitrator's factual findings from his legal
conclusions , which - are subject to reappraisal on the
question of repugnancy, one is left -with the following
findings, which I adopt herein:
1. Mayer was not discharged for picketing or for
distributing literature.
2. Mayer was not discharged for violation of a no-
solicitation rule.
3. Mayer was not seeking to foment a work stoppage or
strike.
4. Mayer did not, as asserted by Respondent, concoct
the entire scheme in order to get himself discharged so that
he might take the extended leave of absence which had
been denied him and then secure reinstatement and
backpay. -
5. Mayer was discharged for his February 20, distnbu-
tion of the 2 page leaflet, quoted supra.
D. Analysis and Conclusions as to Mayer's
Discharge
The arbitrator concluded that Mayer was not discharged
for engaging in "concerted activities for the purpose of
collective bargaining or other mutual aid or protection"
within the meaning of Section 7 of the Act. It was his
conclusion that Mayer was discharged for proper cause
because he had resorted to self-help, bypassed the
grievance procedure and made a public attack on a
supervisor , and the Company which "went beyond the
bounds of a fair comment."
In light of Mayer's activities and the language of his
leaflet , are' these conclusions repugnant to the purposes
and policies of the Act? It is my conclusion that they are.
The Board has stated that it does not deem itself bound by
an arbitrator's award which, by ignoring "a long line of
Board and Court precedent construing the Act," is "clearly
repugnant to the purposes and policies of the Act." Radio
Television ' Technical School Inc. t1 a Ryder Technical
Institute, 199 NLRB 570 (1972); see also Jacobs Transfer,
Inc., 201 NLRB 210 (1973).
The threshold question is whether Mayer was engaged in
"concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection." I find that he was
and further fmd that by concluding otherwise, the
arbitrator ignored substantial Board and court precedent
to the contrary. In the instant case , Mayer distributed a
4 Sec. 2.2 , Management Rights-
(A) The Company retains the exclusive right to manage its business
and plant, to direct its working force and to exercise all the functions
and prerogative of management in the operation of its business , in such
manner as it deems advisable without being restricted or limited in any
leaflet to employees describing his grievance concerning the
alleged negligence and improper - supervision by his
foreman and attributing similar conduct to other supervi-
sors. The leaflet was addressed to the other employees, and
while not specifically setting forth what action Mayer
desired, unquestionably sought action of some sort by its
appeal, "WE DON'T HAVE TO TAKE IT!!!" Indeed, Mayer
testified' that he was seeking witnesses to further his
grievance and encouraging other employees to file their
own grievances. Such conduct falls within the definition of
"concerted activity." As the Court of Appeals for the
Fourth Circuit stated: "The activity of a single employee in
enlisting the support of his fellow employees for their
mutual aid or protection is as much `'concerted activity' as
is ordinary group activity. One seldom exists without the
other" Owens-Corning Fibreglass Corporation v. N.LR.B.,
407 F.2d 1357, 1365 (C.A. 4, 1969), enfg. 172 NLRB 148
(1968). Similarly, it has been stated : "A conversation
involving only a speaker and a listener among employees is
concerted activity protected by'Section 7 of the, Act, if it
appears that the speaker's object is to induce `group action'
by employees for their mutual benefit." Ross Valley Savings
& Loan Association, 194 NLRB 270 (1971). See also McNeil
Industries, Inc., 216 NLRB No. 69 (1975). Moreover, as will
be discussed more fully, infra, to protest the' quality of
supervision as it relates to such, working conditions as
training, safety and discipline, is, to protest for the. mutual
aid and protection of employees.
Moreover, it is not relevant that Mayers activity may
have been unwise ;, unreasonable , or unnecessary . See„e.g.,
N.L.R.B. v. Washington Aluminum Co., 370 U.S, 9 (1962),
where employee activity protesting a lack of heat, without
a specific demand being made upon the employer,
occurring while the employer was working to remedy the
problem, was held protected concerted activity. Similarly,
it has been stated that neither "[t]he wisdom, [n]or
unwisdom" of the employees nor the "justification or lack
of it" of the demands affects the protected character of the
activity. N.L.R.B. v. Mackay Radio &„Telegraph Co., 304
U.S. 333, 344-345 (1938); Detroit Forming, Inc., 204 NLRB
205 (1973). Neither of course , are the merits of the
complaint relevant . Spinoza, Inc., 199 NLRB 525 (1972).
Next, we must turn to the question of whetheranything
in Mayer's activity caused him to forfeit the Act's
protection.
The arbitrator found that Mayer's "public attack upon
the competence of a supervisor and . . . allegation that
despite his wrongdoing the Employer supports him and all
other foremen ': undermines the' ability of the Employer to
manage its business and plant, contrary to Section 2.2(A)
and (B) of the Collective Bargaining Agreement "4 As
noted, he applied a standard of "fair comment" to Mayer's
remarks. "Fair comment" may have applicability to the
law of libel, as a conditional privilege (see, e.g., Curtis
Publishing Co. v. Butts, 388 U.S. 130, 151-152 (1967), and
Prosser, The Law of Torts, Secs. 109, 110), it is not,
respect, subject only to the conditions expressly contained in this
agreement
(b) The management of the Company and the direction of its
working force , reserved exclusively to the Company , includes, but is
not limited to, the right to suspend or discharge for proper, cause . .
DREIS & KRUMP MANUFACTURING, INC.
however, the test by which the Board examines speech in
the context of protected activity. The Board standard,
appropriately recognizing that the economic power of the
employer and employee are not equal, that tempers may
run high in this emotional field, that the language of the
shop is not the language of "polite society," and that
tolerance of some deviation from that which might be the
most desireable behavior is required, has held that
offensive, vulgar, defamatory or opprobrious remarks
uttered during the course of protected activities will not
remove activities from the Act's protection unless they are
so flagrant, violent, or extreme as to render the individual
unfit for further service. American Telephone and Telegraph
Co., 211 NLRB 782 (1974); Bob Henry Dodge Inc., 203
NLRB 78 (1973); Ben Pekin Corporation, 181 NLRB 1025
(1970); Linn v. United Plant Guard Workers, 383 U.S. 53
(1966). See also Jacobs Transfer, Inc., supra, wherein the
Administrative Law Judge's Decision, affirmed by the
Board, pointed out that "misstatements made in the course
of union activity forfeit the protection of the statute only
when deliberately or maliciously false," and that the
question of whether the accusations were libelous or
defamatory so as to support a lawsuit was of no relevance.
Texaco, Inc. v. N.L.R.B., 462 F.2d 812 (C.A. 3, 1972);
Owens-Corning Fiberglass Corp. v. N.L.R.B., 407 F.2d 1357
(C.A. 4, 1969); Walls Manufacturing Co. v. N.LR.B., 321
F.2d 753 (C.A.D.C. 1963); Gustin Bacon Manufacturing
Company Division of Certain-Teed Products Corporation,
173 NLRB 332 (1968); Socony Mobil Oil Company Inc., 153
NLRB 1244 (1965); Bettcher Manufacturing Corporation, 76
NLRB 526 (1948).
In the light of Board precedent, Mayer's statements were
not so offensive, defamatory, or opprobrious as to remove
them from the protection of the Act. The Ben Pekin, supra
case is particularly instructive. In that case, the individual
charging party was discharged for accusing the employer's
president of bribing a union agent in order to obtain a
wage increase less than was called for in the Union's
contract. That accusation, beyond question harsher and
more damaging than anything Mayer wrote about Mira-
bella, did not exceed the limits protected by the Act. To the
same effect, see Jacobs Transfer, supra, wherein an
employee who accused his employer, of an improper
relationship with the union' and flagrant disregard of the
contract was, held not to have exceeded the, privileges
accorded protected concerted activity. Respondent cited
Maryland Drydock Co. v. N.LR.B., 183 F.2d, 538 (C.A.
1950); Joanna Cotton Mills Co. v. N.L.R.B., 176 F.2d 749
(C.A. 4, 1949); and N.L.RB. v. Aintree Corp., 13^ 5 F_2d 395
(C.A. 7, 1943), in support of its contention that conduct
such as that engaged in by Mayer forfeited the protections
of the Act. Each of these circuit court cases, denying such
protection, reversed a contrary Board decision which
would support my conclusion herein. I am bound to follow
Board precedents until the Board or the Supreme Court
overrules them. Ben Pekin Corp., supra; Insurance Agents'
International Union AFL-CIO, 119 NLRB 768 (1957). Such
a policy is particularly wise in a case such as this, for the
Board, with its special expertise, is in the best 'position to
strike the necessary balance between the congressionally
mandated rights of employees to engage in ',union and
315
concerted activities and employer rights to maintain
decorum and discipline. N.L.R.B. v. Magnavox Co., 415
U.S. 322, N.LR.B. v. Thor Power Tool C6, 351 F.2d 584
(C.A. 7, 1965). Finally, in this regard, I note that the last
cited case offers precedent contrary to Respondent's
position within Respondent's own circuit. In that case, an
employee's conduct did not lose its protected status
notwithstanding a reference to the company superinten-
dent as a "horse's ass."
The arbitrator also concluded that Mayer violated
section 10.2 of the contract. That section provides that the
Union would be furnished with a place for the posting of
notices on condition that "Nothing derogatory to the
Company or its employees . . . shall be posted thereon."
The arbitrator reasoned that this section limited the rights
of individual employees and -applied to distributions as
well as postings. The short answer to this is to be found in
the recent Supreme Court decision of N.LR.B. v. Magna-
vox Co., supra. Therein, the Court held that a union could
not, by agreeing to a company rule, waive the Section 7
rights of employees to engage in distributions, at `least in
nonwork areas and on nonwork time . Moreover, the rule,
on its face, has no application to individual employee
distributions.
Respondent asserted before the arbitrator, and again in
the unfair labor practice proceeding, that Mayer was
discharged because he attempted to foment a work
stoppage or slowdown. As previously noted, the arbitrator
found that:
The language "WE DON'T HAVE TO TAKE IT! ! !" was not
an appeal to employees to engage in a slowdown or
work stoppage, as the Employer asserted. It would take
a strained interpretation of simple language to read that
meaning into it.
I agree. I note also that Mayer did not picket the plant
while making his distribution, and entered the plant and
reported to his work station, prior to the start of the shift,
upon completing that distribution. That is not the conduct
of an employee seeking to foment a cessation of work.
Respondent also asserted that Mayer was lawfully
discharged because he sought the discipline and removal
from a supervisory position of his foreman, Mirabella. The
arbitrator found that Mayer's demand that Mirabella be
disciplined was "gratuitous advice" to the Employer but
not the reason for his discharge. With this latter conclu-
sion, I agree. The documents distributed do not purport to
demand Mirabella's removal and Respondent did not,
when' it, first heard Mayer's statement on February 19,
advise Mayer that it deemed suggestions concerning the
discipline of supervisors to be improper. Moreover,
Respondent's contention,is wrong as a matter of law. The
Board has repeatedly held that employees are legitimately
concerned with the identity, capabilities, and quality of
supervision, at least where, as here, the quality of that
supervision has an impact upon the employees', job
interests and their ability to perform the task for which
they were hired. In this instance, it should be noted,
Mirabella's alleged failings presented potential safety
problems, as claimed in the grievance filed by the Union
on Mayer's behalf, a matter of serious and legitimate
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concern to employees. Leslie Metal Arts Company, Inc., 208
NLRB 323 (1974), enfd. 509 F.2d 811, (C.A. 6, 1975);
Okla-Inn, d/b/a Holiday Inn of Henryetta, 198 NLRB 410
(1972); Plastilite Corporation, 153 NLRB 180 (1965). They
also directly related to the manner in which employees
were disciplined, which could ultimately affect job tenure.
Respondent contended, and the arbitrator concluded,
that Mayer impermissibly attempted to bypass the griev-
ance procedure. In this I cannot agree. Mayer had a
grievance pending, his message to his fellow employees was
consistent with that grievance; he sought I find, not to
disparage the established procedure but to enhance it. That
he could have been more specific or more effective may
well be the case, but is, irrelevant. Respondent's reliance
upon Emporium Capwell Co. v. Waco, 420 U.S. 50, is
misplaced. The employees in Emporium picketed and
directed their picketing at their employer's customers. No
such activity was engaged in by Mayer. Most significantly,
the employees in Emporium sought to force the employer to
engage in separate bargaining with them. It was this
conduct which was in issue in Emporium and it was this
conduct which was found to be unprotected. See United
Parcel Service, Inc., 205 NLRB 991 (1973). Mayer sought
no such separate negotiations . Similarly misplaced was
Respondent's reliance upon James Moore v. Sunbeam
Corporation, 459 F.2d 811 (C.A. 7, 1972), and Board cases
such as Kraft Foods Co., 108 NLRB 1164 (1954), which
dealt with strike or attempts to cause strikes in violation of
a no-strike agreement . As previously noted, Mayer was not
seeking to cause a strike or slowdown.
Respondent further contended that Mayer was not
entitled to the protections of the Act because he was not
acting in good faith in pursuing his grievance. In support of
this, it was argued that Mayer sought to be discharged.
Mayer may well have anticipated that Respondent would
not approve of his actions but neither the evidence before
the arbitrator nor the evidence before me (even assuming
the evidence contained in the various offers of proof was
before me) established that his motive was other than to
enlist ` support for his grievance and alert employees to a
problem in their' mutual working conditions. It was further
contended that Mayer was motivated by animus toward
Mirabella and Respondent. Mayer may, as alleged, have
considered Mirabella a "racist," but there was no evidence
that such a belief impelled him to take the action he took.
His distribution makes no mention of such an allegation.
Similarly, Mayer's complaints to other governmental and
private agencies, primarily occurring after his' discharge
and relating directly to that discharge, do not establish an
animus toward Respondent from which an inference of
bad faith might be drawn.
Based upon the foregoing, I fmd and conclude that
Mayer was engaged in a protected, concerted activity for
the purpose of collective bargaining or other mutual aid or
protection when he distributed the literature in question on
February' 20. Accordingly, his discharge violated Section
8(a)(1) and (3) of the Act.
E. The No-Solicitation Rule
Respondent maintains a no-solicitation rule which
provides:
There should be no solicitation by any employee unless
permission is expressly granted by the Personnel
Department.
The rule was promulgated with the approval, and perhaps
at the instance, of the Union. Testimony indicated that it
was intended to apply to monetary solicitations. This rule
would reasonably be interpreted by employees to apply to
union and other protected activities and,' not being
confined to working time, is unduly broad on its face.
Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962).
The Union's approval does not render the rule valid as it is
not within the power of the Union and the Respondent to
take away basic employee rights under Section 7 of the
Act. N. L, R. B. v. Magnavox Company of Tennessee, 414 U.S.
1109 (1974); Yellow Cab, Inc., 210 NLRB 568 (1974).
Accordingly, I fmd that by maintaining the above-quoted
rule, Respondent has further violated Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Joseph P. Mayer on February 20,
1974, because he had engaged in union activity and
concerted activity protected by Section 7 of the Act,
Respondent violated Section 8(a)(1) and (3) of the Act.
4. By promulgating and maintaining a rule which
prohibits employees from engaging in solicitations on
nonworking time in regard to matters related to their
Section 7 rights, Respondent has violated Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it be
ordered to cease and desist from such conduct and to take
affirmative action to effectuate the policies of the Act.
I shall recommend that Joseph P. Mayer be reinstated to
his former job or, if that job no longer exists, to a
substantially equivalent job, and that he be made whole for
any loss of pay he may have suffered by reason of the
discrimination against him by the payment to him of a sum
of money equal to that which he would have earned but for
the discrimination, in accordance with the principles
enunciated by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this proceeding
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
DREIS & KRUMP MANUFACTURING, INC. 317
ORDERS
Respondent Dreis - & Krump Manufacturing, Inc.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall:
1. tease and desist from:
(a) Discharging or otherwise discriminating against any
employee in regard to hire, tenure of employment, or any
term or condition of employment for engaging in union
activity or any other activity protected by Section 7 of the
Act.
(b) Promulgating or maintaining any rule which prohib-
its employees from engaging in solicitations on nonworking
time in regard to matters related to the exercise of their
Section 7 rights.
(c) In any like or related, manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer Joseph P. Mayer full reinstatement to his
former job or, if such former job no longer exists, reinstate
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted-by the Board and become
the Board 's findings , conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
him to a substantially equivalent job, without prejudice to
his seniority and other rights and privileges, and make him
whole for any earnings he may have lost as a result of his
discharge, in the manner set forth above in-the section of
this Decision entitled "The Remedy."
(b) Rescind its present no-solicitation rule.
(c) Post at its Chicago, Illinois, plant, copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent, shall be
posted immediately upon receipt thereof, in conspicuous
places, including, all places where notices to employees are
customarily posted, and be maintained by it for 60
consecutive days. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material,
(d) Notify said Regional Director, in writing, within 20
days from, the date of this Order, what steps Respondent
has taken to comply herewith.
6 In the event that the Board 's 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."