Honda of America Mfg., Inc.

National Labor Relations Board - Board Decisions

Jul 23, 2001

334 N.L.R.B. 751 (N.L.R.B. 2001)

HONDA OF AMERICA MFG. 751
Honda of America Manufacturing, Inc. and Donald
Alan DeWald Jr. Case 8–CA–30343
July 23, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
The issue presented in this case is whether comments
about company personnel the Charging Party made in the
course of activity protected by the Act were so offensive
that the otherwise protected activity became unpro-
tected.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 and 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. The 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,

1 The General Counsel issued the complaint on December 16, 1998.
The complaint alleged that the Respondent violated Sec. 8(a)(3) and (1)
by disciplining and suspending the Charging Party. On December 28,
1998, the Respondent filed a timely answer admitting in part and deny-
ing in part the allegations in the complaint, and denying that it had
violated the Act.
On October 15, 1999, 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 February 4, 2000, 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, and
the Respondent filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
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.

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
threatening 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 stricter than Federal
and state requirements. The Respondent has issued
numerous disciplinary actions to its employees for
violations of the rule. For several years, the Charging Party, employee Don-
ald Alan DeWald Jr., has engaged in distributing litera-
ture at the Respondent’s facility, the primary purpose of
which has been to espouse his support for unions and to
object to various terms and conditions of employment
maintained by the Respondent. During his employment
with the Respondent, DeWald has been disciplined a
number of times, including several disciplinary actions
taken for violations of rule 13. Two previous rule 13
disciplines occurred in May 1996 and are the subject of
an unfair labor practice charge filed by DeWald in Case
8–CA–28313.3 From June 1996 to October 27, 1998,4
DeWald continued to distribute prounion literature with-
out incident.
On May 18 DeWald sent a communication to Kim
Ryan, manager of the Respondent’s benefits department,
in which DeWald claimed that information about com-
pensation in a booklet given to employees was inaccu-
rate. Ryan replied in a written response dated July 6 that
the booklet was not inaccurate. Employee Laura Solo-
mon, who worked in the benefits department, met with
DeWald on July 9 to give him Ryan’s response. Solo-
mon met on two more occasions in July with DeWald,
who claimed that Ryan’s response was inadequate and
requested a meeting with Ryan. Ryan declined to meet
with DeWald because she believed his concerns had been
fully addressed.
2 The Respondent is subject to State and Federal civil rights laws
that prohibit unlawful discrimination, which includes 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. Sec. 20000e et seq.
3 See Honda of America Mfg., 334 NLRB No. 98 (2001) (finding
that DeWald was lawfully disciplined in May 1996).
4 All subsequent dates refer to 1998, unless otherwise indicated.
334 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
On October 20 DeWald authored and distributed a
document entitled “Honda vs. The Calendar.” In this
document, in which he repeated his claim that the book-
let was inaccurate and described his meetings with
Solomon, DeWald made the following statements about
Solomon and Ryan on a page entitled “It’s Not A Mis-
take, It’s A Lie”:

Laura . . . hadn’t even been here long enough to have a
benefit booklet of her own. The person Honda used to
address this concern was someone who had no knowl-
edge or hands on experience with the matter at hand
. . . . I brought my benefit booklet into the next meet-
ing and showed Laura, to her satisfaction, that errors
were indeed made by the Benefits dept. The next meet-
ing, she informed me that Ms. Ryan would not openly
admit the mistakes[.] . . Either Laura was not thor-
oughly conveying my facts to Ms. Ryan, or Ms. Ryan
was not smart enough to figure out simple math[.]
The Respondent believed that the above-quoted com-
ments were inappropriate personal attacks on Ryan and
Solomon, insinuated they were untruthful and unethical,
and disparaged their intelligence and competence, in vio-
lation of rule 13. Based on the statements in “Honda v.
The Calendar” that the Respondent found offensive, the
Respondent issued a manager-level counseling and 3-day
suspension to DeWald on October 27. In the counseling
document, the Respondent stated that DeWald “has been
counseled for similar violations of [rule 13] in the past
and has been warned that future actions would result in
disciplinary action.”
B. The Contentions of the Parties
The General Counsel contends that DeWald’s “Honda
vs. The Calendar” constituted protected activity and that
the comments regarding Ryan and Solomon did not
cause DeWald’s writing to lose its protected status. The
Respondent contends that DeWald’s comments about
company personnel in “Honda v. The Calendar” were
offensive, inappropriate, and demeaning to the individ-
ual, in violation of rule 13, and should not be considered
protected activity.
C. Discussion
The subject matter of “Honda v. The Calendar” was
employee compensation, specifically, DeWald’s belief
that the employee booklet describing total compensation
was misleading. It is undisputed that the publishing of
his views regarding employee compensation is protected
conduct. Indeed, the Respondent concedes this point in
its statement of position attached to the parties’ stipula-
tion of facts. Thus, the issue before us is whether
“Honda v. The Calendar” lost its otherwise protected
status because of personal attacks on company personnel
contained in the publication.
The Supreme Court has placed its imprimatur on the
principle that our Act protects language during protected
activity that “might well be deemed actionable per se in
some state jurisdictions.” Linn v. Plant Guards Local
114, 383 U.S. 53, 58 (1966). “Both labor and manage-
ment often speak bluntly and recklessly, embellishing
their respective positions with imprecatory language.”
Id. (citation omitted). Such “freewheeling use of the
written and spoken word . . . has been expressly fostered
by Congress and approved by the NLRB.” Letter Carri-
ers v. Austin, 418 U.S. 264, 272 (1974).
The protection that our Act provides employee verbal
and written expressions during the course of protected
activity is not without limitation. Otherwise protected
activity may become unprotected “if in the course of
engaging in such activity, [the employee] uses suffi-
ciently opprobrious, profane, defamatory, or malicious
language.” American Hospital Assn., 230 NLRB 54, 56
(1977). Nonetheless, “[T]he most repulsive speech en-
joys immunity provided it falls short of a deliberate or
reckless untruth.” Linn, supra at 63.
At issue in this case are DeWald’s above-quoted
statements about individuals in the Respondent’s benefits
department. DeWald no doubt questioned the intelli-
gence and truthfulness of the individuals he named.
DeWald’s statements, however, were linked to his pro-
tected message: He was expressing his belief that the
individuals responsible for addressing his concerns about
the Company’s employee booklet did not have the ex-
perience, knowledge, or capability to understand the
complexity of the benefits described in the booklet. We
can find nothing in these statements or in the parties’
stipulation that would warrant finding them deliberate or
reckless untruths that would render the otherwise pro-
tected activity unprotected.
The Respondent argues that DeWald’s comments
should be considered more egregious because they were
directed at a fellow employee, as well as management.
The Respondent cites no precedent in which this distinc-
tion was of legal significance. Given the linkage of even
DeWald’s statements to his protected message, we can-
not agree that the distinction the Respondent draws
should have any bearing on our conclusion.
Based on the above precedent, we find that DeWald’s
authoring and distributing of “Honda vs. The Calendar”
was protected activity and that the comments about com-
pany personnel contained therein were not so offensive
as to deprive DeWald’s activity of the protection guaran-
teed by Section 7 of our Act. We therefore find that the
Respondent’s disciplining and suspending of DeWald for
HONDA OF AMERICA MFG. 753
those comments violated Section 8(a)(3) and (1). The
October 27 counseling document refers to “similar viola-
tions of [rule 13] in the past,” as well as the statements
the Respondents finds offensive in “Honda v. The Cal-
endar.” In the companion case we issue today, we are
finding the Respondent’s imposition of discipline for
those “similar violations” to be lawful. Nevertheless, we
do not believe this is a mixed motive case that needs to
be analyzed under Wright Line, 251 NLRB 1083, 1089
(1980), enfd. on other grounds 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 ((1982). First, both
parties agree that the question is simply whether De-
Wald’s statements in “Honda v. The Calendar” should
deprive him of protection under the Act. Further, the
Respondent concedes in the instant case that it “would
not have disciplined [DeWald] but for the personal at-
tacks” in “Honda v. The Calendar.”
CONCLUSION OF LAW
By issuing disciplinary action, consisting of a man-
ager-level counseling and a 3-day suspension, to em-
ployee Donald Alan DeWald Jr. on October 27, 1998, the
Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(3) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(3) and (1) of the Act, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, to remedy
the unlawful conduct toward DeWald, we shall order the
Respondent to make him whole for any wages and bene-
fits lost as a result of his October 27, 1998 suspension,
with interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). We shall also order the
Respondent to remove from its files any reference to the
October 27, 1998 discipline and suspension.
ORDER
The National Labor Relations Board orders that the
Respondent, Honda of America Manufacturing, Inc.,
East Liberty, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Taking disciplinary action, by issuing manager-
level counseling and suspending employees, because
they engage in protected union or concerted activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Donald Alan DeWald Jr. whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in the
remedy section of the decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline and
suspension, and within 3 days thereafter notify Donald
Alan DeWald Jr. in writing that this has been done and
that the discipline and suspension will not be used
against him in any way.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its East Liberty, Ohio facility copies of the attached no-
tice 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 representa-
tive, shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since October 27, 1998.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER WALSH, concurring.
In my dissenting opinion in Honda of America Mfg.,
334 NLRB No. 98 (2001), issued today, I set forth the
reasons why communications occurring during the
course of otherwise protected activity should remain
likewise protected unless found to be “so flagrant, vio-
lent, or extreme as to render the individual unfit for fur-
ther service.” Id., slip op. at 4. Applying that high stan-

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
dard here, I concur in my colleagues’ finding that the
Respondent unlawfully disciplined the Charging Party
for statements contained in “Honda v. The Calendar.”

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
violated the National Labor Relations Act and has or-
dered 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT take disciplinary action, by issuing
manager-level counseling and suspending employees,
because they engage in protected union or concerted ac-
tivity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make Donald Alan DeWald Jr. whole for
any loss of earnings and other benefits resulting from his
discipline and suspension, less any net earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline and suspension and, WE WILL, within 3
days thereafter, notify Donald Alan DeWald Jr. in writ-
ing that this has been done and that the discipline and
suspension will not be used against him in any way.

HONDA OF AMERICA MANUFACTURING, INC.