Honda of America Mfg., Inc.

National Labor Relations Board - Board Decisions

Jul 23, 2001

334 N.L.R.B. 746 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746
Honda of America Mfg., Inc. and Donald Alan De-
Wald Jr. Case 8–CA–28313
July 23, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
The issue presented in this case is whether language
used by the Charging Party in the course of activity pro-
tected by the Act was so offensive that the otherwise
protected activity became unprotected.1
On the basis of the entire stipulated record and the
briefs in this case, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Ohio corporation engaged in the
manufacture of automobiles and motorcycles with a
place of business in East Liberty, Ohio. Annually, the
Respondent sells and ships from its East Liberty facility
goods valued in excess of $50,000 directly to points out-
side the State of Ohio. The parties stipulated, and we
find, that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
The parties stipulated, and we find, that International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
One of the Respondent’s core operating philosophies is
respect for the individual. The associate handbook, in a
message from the Respondent’s president, states,

The management policy at Honda of America has at its
core the belief that the human being is the most impor-
tant asset in a manufacturing operation. Under this pol-
icy each Associate is to be treated fairly, equally, and
with respect.

1 The General Counsel issued the complaint on May 15, 1997. The
complaint alleged that the Respondent violated Sec. 8(a)(3) and (1) by
disciplining and suspending Donald Alan DeWald Jr. On May 29,
1997, the Respondent filed a timely answer admitting in part and deny-
ing in part the allegations of the complaint, and denying that it had
violated the Act.
On December 15, 1997, the parties filed with the Board a stipulation
of facts and a motion to transfer this case to the Board; agreed that the
charge, the complaint, the answer, the stipulation, and the exhibits
attached to the stipulation shall constitute the entire record in this pro-
ceeding; and waived a hearing before and decision by an administrative
law judge. On March 16, 1998, the Board approved the stipulation and
transferred the proceeding to the Board for issuance of a Decision and
Order. The Respondent and the General Counsel filed briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.

The Respondent has at various times reiterated this policy
through memoranda to its employees.
Rule 13 of the Respondent’s standards of conduct
states, “Associates must not . . . [u]se abusive or threat-
ening language to/or about fellow Associates or create an
intimidating, hostile, or offensive working environment.”
The Respondent believes that this rule furthers both its
legal duties2 and its operating philosophy of respect for
the individual. The Respondent intends rule 13 to be
more strict than Federal and State requirements. The
Respondent has issued numerous disciplinary actions to
its employees for violations of the rule.
The Charging Party, employee Donald DeWald, has
been employed by the Respondent since October 1, 1990,
at its East Liberty facility. During 1996 and before, he
distributed numerous newsletters and other material at
the East Liberty facility. In the literature DeWald ex-
pressed strong support for unions in general and the
United Automobile Workers in particular, and voiced his
objections to various terms and conditions of employ-
ment maintained by the Respondent.
No newsletter or other material authored by DeWald
prior to the newsletters at issue in this proceeding con-
tained vulgar or sexually explicit language or personal
attacks on another employee. Although DeWald has
been disciplined several times for various infractions,
including violations of rule 13, he had not been disci-
plined before May 19963 for the content contained in the
literature he distributed.
On March 10 Lee Siegfried, another employee at the
East Liberty facility, authored and distributed a newslet-
ter in response to a DeWald newsletter, to which DeWald
replied with a newsletter. On March 20 Siegfried issued
another newsletter which stated, in part, “Well, Stew
[DeWald’s nickname], if it’s a duel of wits you want to
play, I’m sorry, but I will not duel with anyone who has
little if no ability to arm themselves.” In April Siegfried
received a verbal coaching from his department manager
because the Respondent believed that Siegfried’s written
exchanges with DeWald were causing some disruption in
the plant and that some of the language Siegfried used
was potentially in conflict with the Respondent’s non-
harassment policy.
2 The Respondent is subject to State and Federal civil rights laws
that prohibit unlawful discrimination, which include the requirement
that the Respondent maintain a work atmosphere that is free of harass-
ment and is not hostile, intimidating, or offensive to employees. See,
e.g., Title VII, Civil Rights Act of 1964, 42 U.S.C. § 20000e et seq.
3 All subsequent dates are in 1996, unless otherwise specified.
334 NLRB No. 98
HONDA OF AMERICA MFG. 747
In a newsletter dated May 6, DeWald wrote in refer-
ence to Siegfried, “Quit hiding Lee, Come Out of the
Closet.” Also, DeWald repeatedly used the term “bone
us” in a section of the newsletter criticizing the Respon-
dent’s bonus program.4
The parties stipulated that a common meaning of the
phrase “come out of the closet” is to openly admit one’s
homosexuality; that the Respondent interpreted De-
Wald’s comment to be a public accusation that Siegfried
is homosexual; that the Respondent considered such
comments inappropriate and disrespectful; that a com-
mon meaning of “bone” is “fuck,” “copulate,” or “to
have anal intercourse with”; that the Respondent inter-
preted DeWald’s use of the phrase “bone us” to be
equivalent to accusing the Respondent of “fucking” its
associates through the Respondent’s bonus program; and
that the Respondent considered such language to be in-
appropriate, profane, vulgar, and offensive. The Re-
spondent received complaints from associates who were
offended by the language in DeWald’s newsletter.
The Respondent believed that language in DeWald’s
May 6 newsletter violated rule 13. On May 10 DeWald
received a coordinator level counseling. During the
counseling, DeWald denied that he intended the terms in
question to be taken in either a sexual or demeaning
manner. The Respondent rejected DeWald’s explanation
because it was inconsistent with what the Respondent
believed to be the generally accepted understanding of
the terms “bone us” and “come out of the closet” and
because, given the context of the language, the Respon-
dent believed DeWald intended to convey a vulgar and
disrespectful message through his use of those terms.
On May 23 DeWald distributed a modified version of
the May 6 newsletter. The headline that previously read
“Quit Hiding Lee, Come out of the Closet” was revised
to read “Hey Lee, it’s time to come out of hiding.” The
May 23 newsletter continued to use the phrase “bone us”
to refer to the Respondent’s bonus program, but added a
footnote stating, “Also, some people have interpreted
‘bone us’ as vulgar, actually it’s from a definition of
bone(up): to study hard. Look at and examine our sys-
tem vs. theirs.” On May 29 DeWald received a manage-
rial level counseling, a 3-day suspension, and a 1-year
suspension of transfer and promotion rights.
B. The Contentions of the Parties
The General Counsel contends that, by publishing
newsletters in which he discusses his views about the
need for union representation at the East Liberty facility,

4 For example, DeWald wrote, “In our last wage and benefit book-
let, the president included in his message that the bonus (bone us) shar-
ing program will be changed.”
DeWald is engaged in activity protected by the Act. The
Respondent claims that DeWald’s repeated use of “bone
us” and “Quit hiding Lee, Come out of the Closet” con-
stitutes offensive language that places the newsletters
outside the Act’s protection. The General Counsel re-
sponds that the language the Respondent finds offensive
does not render the newsletters unprotected under Board
precedent.
C. Discussion
Section 7 guarantees employees the right to engage in
“concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.” An em-
ployee’s Section 7 rights “may permit some leeway for
impulsive behavior.” Webster Men’s Wear, 222 NLRB
1262, 1267 (1976), quoting NLRB v. Illinois Tool Works,
153 F.2d 811 (7th Cir. 1946). Nevertheless, an em-
ployee’s otherwise protected activity may become unpro-
tected “if in the course of engaging in such activity, [the
employee] uses sufficiently opprobrious, profane, de-
famatory, or malicious language.” American Hospital
Assn., 230 NLRB 54, 56 (1977).
Southwestern Bell Telephone Co., 200 NLRB 667
(1972), illustrates the application of the above principles
to a set of facts similar to the instant case. In Southwest-
ern Bell, while negotiations for a new contract were in
progress, unit employees appeared at work wearing
sweatshirts displaying the slogan “Ma Bell is a Cheap
Mother.” The employer asked the employees to leave
the premises or cease displaying the slogan. The General
Counsel alleged that the employees’ conduct was pro-
tected and that the employer’s direction to leave or cease
displaying the slogan violated the Act.
The judge found that the slogan printed on the sweat-
shirts was obscene and that the employer’s request that
employees cease displaying the slogan or leave the prem-
ises did not violate the Act. In reaching this conclusion,
the judge relied on several factors. First, the judge ob-
served that the parties had stipulated that the language
could be (and was) construed as obscene and offensive.
Second, the manner in which the offensive language was
used—“worn on shirts to be exposed to employees and
management all hours of the day”—did not constitute
“impulsive behavior.” Third, the employer had not
threatened reprisal, but had simply requested employees
to cease displaying the offensive slogan. Fourth, there
was no evidence that the company was an antiunion em-
ployer or that the company had exhibited any union hos-
tility in conjunction with the request to cease displaying
the slogan. Fifth, no one was discharged and the only
adverse consequence was that individuals who elected to
leave the premises were not paid for the time they did not
work. Finally, employees could, and without company
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748
objection did, use other means to pursue their Section 7
rights.
These factors bear a striking resemblance to the facts
of the instant case.5 First, the parties stipulated that one
meaning of the slang phrase “come out of the closet” is
to openly admit one’s homosexuality and that the Re-
spondent believed the language was inappropriate, disre-
spectful, and in violation of rule 13, which prohibits lan-
guage that could create an intimidating, hostile, or offen-
sive working environment.6 Further, the parties stipu-
lated that one meaning of the slang phrase “bone” is
“‘fuck,’ ‘copulate’ or to have anal intercourse with” and
that the Respondent considered such language to be in-
appropriate, profane, vulgar, offensive, and in violation
of rule 13.
Second, we do not believe the placing of the offensive
language in newsletters that were available to employees
and management throughout the plant can be dismissed
as impulsive behavior.
Third, the Respondent’s discipline of DeWald—
advising him to be more sensitive to the feelings of other
employees after the May 6 newsletter and a 3-day sus-
pension and 1-year suspension of transfer/promotion
rights when he repeated the offensive conduct in the May
23 newsletter—was typical of the discipline the Respon-
dent imposed for similar violations of rule 13. DeWald
was also advised that future similar conduct would result
in termination. This discharge warning was clearly di-
rected at further use of offensive language, not at pro-
tected activity. We find nothing in the type of discipline
imposed that suggests the Respondent was threatening
reprisal for protected activity.

5 Our dissenting colleague cannot distinguish Southwestern Bell
and, consequently, would overrule it. We would not do so. We adhere
to this well-established precedent dating back almost 30 years.
The cases cited by the dissent are inapposite. In Dreis & Krump
Mfg., 221 NLRB 309 (1975), enfd. 544 F.2d 320 (7th Cir. 1976), and
Nor-Cal Beverage Co., 330 NLRB 610 (2000), the language found
protected was not marked by obscenities or sexual innuendo. While
Chairman Hurtgen agrees that Nor-Cal is distinguishable, he notes that
he dissented in that case.
6 At points in his statement of position, the General Counsel argues
that the “out of the closet” and “bone” language could have innocuous
meanings. We find this argument unpersuasive. The parties stipulated
that the Respondent’s interpretation of the phrases was, in fact, a com-
mon meaning of the phrases. In any event, even if the language was
capable of an innocent as well as an offensive interpretation, under the
circumstances presented by the stipulated record, “it is no answer that
[DeWald] did not in fact intend the derogatory and insulting connota-
tion.” Southwestern Bell Telephone, supra at 670.
The General Counsel also appears to argue that DeWald retracted his
use of the offensive language in the May 23 newsletter by offering an
innocent definition of “bone us” and substituting “hiding” for “closet.”
It is clear, however, that the May 23 newsletter was not a retraction, but
rather a reference back to the May 10 newsletter in a way that repeated
the same message.
Fourth, the stipulation contains no indication that the
Respondent is an antiunion employer; nor that the Re-
spondent evidenced any union hostility during the coun-
selling sessions with DeWald. Fifth, DeWald was not
discharged and, as mentioned above, the discipline was
not disproportionate to that imposed on others for violat-
ing rule 13. Finally, the stipulation shows that DeWald
has frequently distributed, without company objection,
newsletters espousing his support for unionizing.
The General Counsel argues that the language the Re-
spondent finds offensive does not render the newsletters
unprotected under Board precedent. We find the cases
on which the General Counsel relies distinguishable from
the instant case.
In American Hospital Assn., supra, the judge consid-
ered whether language used in five leaflets justified the
discharge of the leaflets’ authors. In finding that the lan-
guage did not justify the discharges, the judge discredited
management’s testimony that the company considered
the language outrageous and insulting. Id. at 56–57. The
judge also found it significant that the employees had not
been warned in some way that continued use of the al-
legedly offensive language would result in discipline. Id.
at 57. In the instant case, the General Counsel has stipu-
lated that the Respondent found the “come out of the
closet” and “bone us” language inappropriate and disre-
spectful, and the record shows the Respondent believed
the language could create an offensive working environ-
ment. The General Counsel argues that an employer
cannot be the final arbiter of acceptable language. Con-
cededly, the Board has the authority to declare that cer-
tain statements are protected by Section 7, even if they
are somewhat distastefully expressed. However, in mak-
ing that judgment, the Board must take into account an
employer’s legitimate interest (and perhaps legal obliga-
tion) to refrain from having an offensive working envi-
ronment.
Here, the Respondent’s concerns in this regard were
reasonable. The stipulation contains nothing comparable
to the credibility resolution in American Hospital Assn.
on which to base a finding rejecting the reasonableness
of the Respondent’s belief. As stated in Southwestern
Bell, 200 NLRB at 671, “Absent the stipulation . . . the
result reached might well [be] otherwise.” Further, based
on the Company’s well-publicized philosophy and strict
enforcement of rule 13, we find that DeWald was or
should have been aware that the Respondent would find
the language he used offensive.
In Webster Men’s Wear, supra at 1262, employees,
during a meeting with management about working condi-
tions, used vulgar and improper statements. The judge,
however, found that a company official’s statements and
HONDA OF AMERICA MFG. 749
profanity provoked the employees’ vulgar statements.
These facts fit snugly into the impulsive behavior rule
mentioned above. DeWald, however, placed the offen-
sive language in newsletters that were available to em-
ployees and management throughout the plant, and thus
was clearly not engaged in impulsive behavior.
We conclude that the “out of the closet” and “bone us”
language DeWald used in the May 6 and 23 newsletters
was so offensive as to render the otherwise protected
newsletters unprotected and that therefore the Respon-
dent’s May 10 and 29 discipline for language violating
the Company’s rule prohibiting the use of abusive lan-
guage did not violate Section 8(a)(3). We find the fol-
lowing statement from the judge’s decision in South-
western Bell an apt summary of our view of the facts of
this case:

In view of the controversial nature of the language used
and its admitted susceptibility to derisive and profane
construction, [the employer] could legitimately ban the
use of the provocative [language] as a reasonable pre-
caution against discord and bitterness between employ-
ees and management, as well as to assure decorum and
discipline in the plant. [Id. at 670.]

ORDER
The complaint is dismissed.

MEMBER WALSH, dissenting.
My colleagues find that the Respondent lawfully disci-
plined employee Donald DeWald because of language he
used in two prounion newsletters he authored and dis-
tributed. Contrary to my colleagues, I would find that
the Respondent violated Section 8(a)(3) and (1) of the
Act when it disciplined DeWald because of the content
of his newsletters.
There is no dispute that the underlying prounion mes-
sage espoused in these newsletters is protected by the
Act. Indeed, dissemination of union-related information
at work lies at the core of the protections afforded em-
ployees. NLRB v. Magnavox Co., 415 U.S. 322, 325
(1974).
The Respondent does not claim that the newsletters
were distributed during working time or in working ar-
eas. Rather, the Respondent disciplined DeWald because
of phrases used in the newsletters that the Respondent
found offensive and in violation of its rule 13, which
prohibits employees from creating an “intimidating, hos-
tile or offensive working environment.” Thus, as stated
by the majority, the issue presented is whether the lan-
guage the Respondent found objectionable removed the
newsletters from the protections of the Act.
It is well established that our national labor policy fa-
vors “freewheeling,” “uninhibited,” “robust,” and “wide-
open debate in labor disputes.” Letter Carriers v. Austin,
418 U.S. 264, 272, 273 (1974).
Consistent with this policy, the Board, with court ap-
proval, has deliberately set a high standard to justify re-
moving labor-related speech from the Act’s protections.
In Dreis & Krump Mfg., 221 NLRB 309 (1975), for ex-
ample, the Board stated that the “test by which the Board
examines speech in the context of protected activity . . .
appropriately recogniz[es] that the economic power of
the employer and the employee are not equal, that tem-
pers may run high in this emotional field, that the lan-
guage of the shop is not the language of ‘polite society,’
and that tolerance of some deviation from that which
might be the most desirable behavior is required.” Id. at
315. The Dreis & Krump Board summarized prior
precedent as holding that “offensive, vulgar, defamatory
or opprobrious remarks uttered during the course of pro-
tected 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.” Id.

The Dreis & Krump Board’s statement of the govern-
ing standard was expressly endorsed by the Seventh Cir-
cuit. Dreis & Krump Mfg. v. NLRB, 544 F.2d 320 (7th
Cir. 1976). The court stated that it “is committed to the
standard for determining whether specified conduct is
removed from the protections of the Act as articulated by
the Board: communications occurring during the course
of otherwise protected activity remain likewise protected
unless found to be ‘so violent or of such serious character
as to render the employee unfit for further service.’” Id.
at 329 (quoting NLRB v. Illinois Tool Works, 153 F.2d
811, 816 (7th Cir. 1946)).
Applying this high standard here, I would find that
DeWald’s newsletters remained protected by the Act.
The record shows that for many years DeWald has dis-
tributed literature at the Respondent’s East Liberty, Ohio
facility espousing his strong support for unions in general
and the International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America
(UAW) in particular. In DeWald’s view, the benefits and
working conditions at the Respondent’s plant compared
unfavorably with those at UAW-represented plants. In
March 1996, another employee (Lee Siegfried) wrote an
“open letter to all Honda associates,” responding to, and
disagreeing with, many of DeWald’s positions. DeWald
then answered Siegfried in a letter of his own, prompting
Siegfried to write a rebuttal in which he stated to De-
Wald: “[I]f it’s a duel of wits you want to play, I’m
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
sorry, but I will not duel with anyone who has little if no
ability to arm themselves.”
In May 1996, DeWald responded to Siegfried in the
two newsletters in controversy here. In these communi-
cations, DeWald challenged Siegfried to “come out of
the closet” and “to come out of hiding.” DeWald argued
that although he had asked Siegfried “to prove his
claims,” Siegfried “ran for his closet and hid. Now, he
wants you to forget how he couldn’t explain all of
[Honda’s] inferiority’s [sic]. He hopes you’ll forget how
I showed my facts, and how he ran away.” The May
newsletters also claimed that the profit-sharing plans of
union-represented plants are far superior to the Respon-
dent’s bonus sharing program, which DeWald referred to
as the “bone us” sharing program.
DeWald’s statements must be considered in context
and viewed as a whole. With respect to Siegfried, the
principal aim of the newsletters was to challenge him to
continue the debate over the merits of unionization.
With respect to the bonus sharing plan, the newsletters
continued the familiar theme in DeWald’s writings that
the Respondent’s benefit programs were inferior to those
enjoyed by UAW-represented employees. As stated
above, there is no question that the newsletters’ central
messages fell well within the ambit of Section 7 pro-
tected activities. In the course of presenting his protected
arguments, DeWald may have used language that many
would find offensive. In order to prevent interference
with statutorily protected rights, however, the law does
not permit an employer to define such language as wor-
thy of discipline for that reason alone. Under NLRA
law, DeWald may use “offensive, vulgar, defamatory or
opprobrious” language to make his points, so long as his
rhetoric was not so extreme as to “render [him] unfit for
further service.” Dreis & Krump, supra, 221 NLRB at
315.
There is no evidence that DeWald’s newsletters dis-
rupted discipline or production or otherwise rendered
him unfit for further service. Indeed, the Respondent’s
brief does not even attempt to justify the discipline under
the “unfit for further service” standard.1 Instead, the Re-
spondent argues that DeWald’s use of the “come out of
the closet” and “bone us” language served to create an
“intimidating, hostile or offensive working environment”
in violation of its rule 13 and, absent a prompt response,
had the potential to subject the Respondent to liability
under Federal and State civil rights laws.
A similar argument was rejected in Nor-Cal Beverage
Co., 330 NLRB 610 (2000). In that case, the employer

1 The Respondent contends that that standard “runs counter” to its
“workplace culture” and is “outdated.”
had a policy prohibiting harassment based on “race,
color, religion, sexual preference, national origin, marital
status, physical disability, age or any other protected
status categories or conditions.” Id. at 1 fn. 3. Relying
on its antiharassment policy, the employer gave an em-
ployee a written warning for calling another employee a
“scab” in the course of a conversation intended to en-
courage support for a strike. The judge found that the
warning was lawful on the ground that the employer had
acted reasonably under its antiharassment policy.
The Board reversed by a 2-to-1 vote. Citing, inter alia,
Dreis & Krump, the Board majority held that the em-
ployee’s use of the word “scab” in the course of his oth-
erwise protected activity did not, in and of itself, deprive
him of the protections of the Act. The Board majority
also held that the employer was not privileged to warn
the employee by virtue of its antiharassment policy. Re-
sponding to the dissent, the Board majority stated that
“an employer’s punishment of an employee’s exercise of
[a Section 7] right can[not] be justified by an assertion
that language used by the employee in the course of ex-
ercising that right, although nonthreatening, was viewed
as ‘harassment’ . . . . The point is that the Act prohibits
an employer from punishing an employee’s expression of
. . . prounion . . . views unless they are manifested in a
manner that exceeds the protection of the Act.” Id. at fn.
5.
I agree with the panel majority decision in Nor-Cal,
and I would apply its sound principles here. While the
Respondent certainly has a legitimate interest in prevent-
ing harassment in its workplace, it cannot magically con-
vert DeWald’s NLRA-protected newsletters into unpro-
tected status by claiming that they constitute “harass-
ment” in violation of its rule 13. As Nor-Cal makes
clear, the determination of whether employee conduct
loses the protections of the Act is to be made by the
Board (not the employer) and the governing standard is
NLRA law (not an antiharassment policy).
Accordingly, for all the above reasons, I would find
that the Respondent violated Section 8(a)(3) and (1) of
the Act by disciplining DeWald because it was offended
by the protected content of his newsletters.2
2 The majority relies heavily on Southwestern Bell Telephone Co.,
200 NLRB 667 (1972), a case that I view as poorly reasoned and some-
thing of an aberration in the corpus of Board law. Most of the authority
cited in Southwestern Bell consisted of court of appeals cases denying
enforcement to Board Orders. In fact, the primary case cited (Caterpil-
lar Tractor Co. v. NLRB, 230 F.2d 357 (7th Cir. 1956) (upholding a ban
on “Don’t be a scab” buttons)), is clearly inconsistent with Board
precedent and has been rejected by other courts. See Escanaba Paper
Co., 314 NLRB 732, 734 fn. 10 (1994), enfd. 73 F.3d 74 (6th Cir.
1996). Accordingly, I would overrule Southwestern Bell.