Lummus Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 649 (N.L.R.B. 1981)

LUMMUS INDUSTRIES, INC.
Lummus Industries, Inc. and Chester L. Pumphrey.
Case 10-CA-14877
January 14, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 12, 1980, Administrative Law
Judge Harold Bernard, Jr., issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 2
i Subsequent to the issuance of the Administrative Law Judge's Deci-
sion in this proceeding, the Board issued its Decision in Wright Lin, .4
Division of Wright Line, Inc.. 251 NLRB No. 1083OR (1980), which Decision
sets forth a two-step mode of analysis for determining causation in cases
arising under Sec. 8(a)(X3) or (I). Although the Administrative Law Judge
in the instant case did not apply the precise Wright Line analysis (and,
indeed, could not have been expected to), we find that his analysis is not
rendered defective by Wright Line Thus, the Administrative Law Judge's
findings at sec 11, pars 25-28, of his Decision constitute prima facie-
showing sufficient to support the inference that a moltivating factor in
Respondent's decision to discipline Chester Pumphrey was Pumphrey's
engaging in protected activities, thereby satisfying the first step of Wright
Line. In addition, the Administrative Law Judge's findings regarding Re-
spondent's purported defense at sec. 1, pars 29-36, of his Decision are
sufficient to demonstrate that Respondent would not have disciplined
Pumphrey in the absence of the protected activity. Accordingly, al-
though the Administrative Law Judge utilized the term "at least in part"
in characterizing causality (a characterizaton which Wright Line discour-
ages in future cases) we conclude that his analysis is in harmony 'sith the
analytical objectives of Wright Line and e therefore affirm his conclu-
sion that Respondent's discipline of Pumphrey violated Sec. 8(a)(1)
We also note that in affirming the Administrative Law Judge we do
not rely on his discussion of the decisions in Timpte, Inc. v. NL.R.B., 590
F.2d 871 (10th Cir 1979). and Maryland Drydock Company v. N.L.R.B.,
183 F.2d 538 (4th Cir 1959) We find those cases inappxsite to the deci-
sion here, which concerns statements neither obscene nor tending to
expose management officials to ridicule Nor do we rely on the Adminis-
trative Law Judge's statement that he did not necessarily approve of
Pumphrey's tactics or doubt that Respondent discharged Pumphrey in
the good-faith belief that discharge was warranted, as we find such an
inquiry irrelevant.
2 The Administrative Law Judge inadvertently neglected to include
the reinstatement remedy in his recommended Order and failed to order
that Respondent rescind its invalid no-distribution and no-solicitation
rules, remedy routinely granted under these circumstances. See Lutheran
Hospital of Milakee. Inc., 224 NLRB 176 (1976). We shall also order
that Respondent expunge from the personnel files of Chester Pumphrey
any written reference to the unlawful warnings given to him We have
also added to par (c) of the recommended Order the language "or for
engaging in protected concerted activity." which was inadvertently omit-
ted.
Member Jenkins would compute the interest due on backpay in accor-
dance with his partial dissent in Olympic Medical Corporation, 250 NLRB
146 (1980).
254 NLRB No. 79
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Lummus Industries, Inc., Columbus, Georgia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining or enforcing by warnings or oth-
erwise any rule that prohibits employees from dis-
tributing literature in nonworking areas on non-
working time, whenever such distribution is pro-
tected by Section 7 of the Act.
(b) Maintaining any rule that prohibits employees
from soliciting on nonworking time, whenever
such solicitation is protected by Section 7 of the
Act.
(c) Discharging or otherwise discriminating
against any employee pursuant to an unlawful no-
distribution rule or for engaging in protected con-
certed activity.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Offer immediate and full reinstatement to
Chester L. Pumphrey to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his senior-
ity or other rights and privileges previously en-
joyed, and make him whole for any loss of earn-
ings he may have suffered by reason of its unlawful
action against him in the manner set forth in the
section of the Administrative Law Judge's Deci-
sion entitled "The Remedy."
(b) Rescind any warnings and expunge any refer-
ence in Pumphrey's personnel file to action taken
against him because of activities herein found to be
protected concerted activity.
(c) Forthwith rescind its no-distribution and no-
solicitation rules to the extent that they prohibit its
employees during their nonworking time from so-
liciting in its facility with regard to matters pro-
tected by the National Labor Relations Act or
from distributing protected literature in the non-
work areas of the facility.
(d) Post at its place of business in Columbus,
Georgia, copies of the attached notice marked
"Appendix. " 3 Copies of said notice, on forms pro-
vided by the Regional Director for Region 10,
3 In the enlt that this Order is enforced by a Judgment of a lnited
States (Court of Appeals, the words in the notice reading "'osted by
Order of the National l.abor Relations Board" shall read "P'osted Pursu-
ant to a Judgment of the United States Court of Appeals Enrforcing an
Order of the National Labor Relations Board"
649
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after being duly signed by an authorized represen-
tative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT maintain or enforce by warnings
or otherwise any rule that prohibits employees from
distributing literature in nonworking areas on non-
working time, where such distribution is protected
by Section 7 of the National Labor Relations Act.
WE WILI. NOT maintain any rule that prohibits
employees from soliciting on nonworking time,
where such solicitation is protected by Section 7 of
the Act.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee pursuant to an unlawful
no-distribution rule or because he engages in pro-
tected concerted activity.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
WE WILL offer Chester L. Pumphrey immediate
and full reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his senior-
ity or other rights and privileges, and WE WILL
make him whole, with interest, for any loss of earn-
ings he has suffered as a result of our unlawful
action against him in discharging him pursuant to
our unlawful no-distribution rule and because he en-
gaged in protected concerted activity.
WE WILL rescind and expunge any reference in
Chester Pumphrey's personnel file to action we
took against him because he engaged in protected
concerted activity.
WE WI.L rescind our no-distribution and no-so-
licitation rules to the extent that they prohibit our
employees during their nonworking time from solic-
iting in our facility with regard to matters protected
by the National Labor Relations Act or from dis-
tributing protected literature in the nonwork areas
of our facility.
LUMMUS INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge:
This case was heard at Columbus, Georgia, on March
24, 1980. The charge was filed on August 1, 1979, and
complaint issued the following September 4. The issues
are: (1) whether Respondent's rules 7 and 8 overly re-
strict employees' rights to engage in solicitation concern-
ing union activities, and the distribution of literature re-
lated to union activitiy; (2) whether Pumphrey was dis-
charged for violating rule 8; and (3) whether Respon-
dent's discharge of Pumphrey for circulating allegedly
defamatory matter violated Section 8(a)(1) of the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses and after careful consider-
ation of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Lummus Industries, Inc., a Georgia corporation, is en-
gaged in the manufacture of cotton ginning equipment
with an office and place of business in Columbus, Geor-
gia. Annually, Respondent sells products valued in
excess of $50,000 directly to customers outside Georgia.
Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. Respondent admits and I find that
Local Lodge 1870, International Association of Machin-
ists & Aerospace Workers, is a labor organization within
the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES BACKGROUND
Respondent employs from 700 to 750 employees at its
cotton gin equipment manufacturing plant. The Union
has had contracts with Respondent covering these em-
ployees over the years. Pumphrey, a union member, was
employed as a machine shop trainee in November 1977
and worked for Respondent until his discharge on July
18, 1979.
Respondent's rules and regulations governing employ-
ee conduct provide, inter alia:
Appropriate disciplinary action, as determined by
the Company, may be taken for any infraction of the
following:
7. Selling, soliciting or collecting contributions
for any purpose on Company premises unless autho-
rized by the Lummus Personnel Department.
8. Posting or removing any material on official
Company bulletin boards or distributing written or
printed matter of any description at any time unless
authorized by the Lummus Personnel Department.
A third rule, rule 17, which is discussed further below
also provided:
17. Making maliciously false or slanderous state-
ments regarding another employee, a supervisor, a
650
LUMMUS INDUSTRIES, INC.
Company official, the Company and/or its custom-
ers.
As early as October 1978, Pumphrey, a seemingly sin-
cere would-be reformer, campaigned to improve the
Union's efforts on behalf of Lummus employees. He
asked for ideas from members of the work force to put
on paper and turn in to the Union for consideration, and
to the Company as well. In November, he passed around
lists of comments and ideas that he had gathered from
fellow employees concerning employment conditions. He
also wrote suggestions on company suggestion forms in
the following January and February. As further back-
ground to the events leading to Pumphrey's discharge, it
is well to note that prior to his circulation of a pamphlet
(G.C. Exh. 3), discussed further below, which contained,
inter alia, reference to "pay-offs," in late April 1979, that
there were already some reports on this or a similar
topic circulating around the plant and which were not
attributed to Pumphrey. Thus, Respondent witness
Dallas Dale Hammock testified when questioned by me
as to what he understood was the meaning of "sell-out,"
as follows:
Q.... After Mr. Pumphrey asked you a ques-
tion about a union sell out, did he give you any de-
tails at all about what he was talking about?
A. No.
Q. Did you know what he was talking about?
What does a sell out mean; what did it mean to you
at the time?
A. Well, we have had some union officials down
there like president of the union. But most times,
they are officers of the union who were picked to
be bosses. They offer them bosses' jobs from time to
time. Well, they offered most of the metal workers
up there in the metal shop-the most of the Jour-
neymen-I don't know whether they are considered
the smartest workers at Lummus or what-but the
majority of the men come from there, and they pick
certain people and offer them bosses' jobs.
In a similar vein relating as it does to allegations or
stories of a payoff, already extant in the plant before
Pumphrey's activities precipitating his discharge another
Respondent witness, John T. Moore, manager of indus-
trial relations, told of another rumor. Moore had 35
years with the Company and was a former local union
president. He testified to representing the Union in con-
tract negotiations in late 1976-77, and leaving office in
January 1978. One week later, Moore purchased a 1978
model automobile and testified he heard a rumor after
the negotiations were over that the Company had pur-
chased him the new car ". . . for me to sell the Union
out...." Thus, well prior to April 1979, there was
proof that stories concerning "sell-outs" were being cir-
culated in the plant other than by Pumphrey, and the
record also shows, as the parties agree, that Pumphrey's
pre-April materials did not contain any reference to
payoffs or bribery.
Events Leading to Pumphrey's Discharge
Beginning in April, the record shows that Pumphrey
circulated around the plant a pamphlet (G.C. Exh. 3)
which he authored and reproduced to arouse member-
ship of the Union to take an interest in their wages, their
union leadership, their contractual working conditions, to
start attending union meetings and to rectify poor condi-
tions. The pamphlet started out with an opening refer-
ence to an alleged salary difference between "Journey-
men" and other employees. Paragraph 2 stated that
people in the $4.10 an hour to $5.70-an-hour pay range
did not get evaluated for a raise in September and No-
vember. Paragraph 3 stated that "One of the members of
the team that negotiated that sorry contract is now our
union president." Paragraph 4 asked why there was no
compensation for men who invested money in tools and
mentioned starvation wages. Paragraph 5 complained
about the lack of an effective suggestion system, while
paragraph 6 complained about the lack of a training pro-
gram. Paragraph 7 interpreted article XIII of the con-
tract to say that the local union president and other local
union officials could abrogate their responsibilities by
doing nothing and thereby continuing the existing con-
tract.
As shall be seen in further detail below, Respondent
objected to two further portions of the leaflet: paragraph
8 and the final, or third "belief" paragraph, viz:
8. There is a common feeling that during the
entire 44 years that the I.A.M. has represented
Lummus employees, there has been some kind of
sell out every time contract negotiation time came
around. ....
Realizing that it takes some kind of superhuman
character to resist the temptation to accept a several
thousand dollar bonus in exchange for a weak con-
tract or even pursuant to Article X11, no contract,
which the company can easily afford, we should
not be paranoid, but must be eternally watchful of
the leadership.
Pumphrey testified that he distributed the leaflet to 12
employees whom he had spoken to previously. Since he
had a "moral rule" of not unionizing on company time,
Pumphrey handed the leaflet out at the plant, or nearby
in the parking lot on breaktime, lunchtime, before and
after work. Although he did not post the leaflet, he was
told that the leaflet had been posted by someone. On
May 9, 8 days after the posting, he was called into a
meeting with Lamar Stone, the night-shift supervisor.
The May 9 Warning
The meeting took place in Stone's office. Vincent
Ship, shop steward, Ralph Lee, leadman, Paul Crow, a
union committeeman, and Stone were there. According
to Pumphrey, Stone told him that he was" causing dis-
sension and trying to drive a wedge between the compa-
ny and the union...." Then Stone said that nothing of
I Respondent introduced no evidence which contradicted Pumphrey's
assertion that he did not post the leaflet
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this nature could be communicated on company proper-
ty. When Pumphrey asked him about breaktime and
lunchtime, he said, "No, don't be caught distributing
unionizing literature on company property any time."
Lamar Stone testified that he had not seen the leaflet
circulating, but was told about it, and that he was in-
formed that Pumphrey may have been the author of the
document. Stone said that he did not tell Pumphrey that
the entire leaflet was unacceptable, but said the Compa-
ny could not tolerate the allegations of bribery and sell-
out. He asked Pumphrey if he had proof, and Pumphrey
said he had no proof, but felt that way. In addition,
Stone told Pumphrey that even though he had not
posted the leaflet, he needed company permission to post
material on the bulletin board and could not distribute
material while on company time. (Emphasis supplied.) On
cross-examination, Stone defined company time as the
time when the Company was paying the employee and
included breaktime in this definition.
The June 12 Warning
On June 11, John Moore, manager of industrial rela-
tions, was told that the leaflet had been posted in the ma-
chine shop again. Moore called a meeting with Pumph-
rey, his supervisor, Billy Allen, Paul Nelson, plant man-
ager, and Vincent Ship, the union steward.
Once again, Pumphrey admitted writing the leaflet but
denied posting it. He also admitted that he had no proof
there were briberies or a sellout, but thought that they
were possibilities. Because Pumphrey did not post the
document he was given a verbal warning.
Moore and Nelson both testified that Pumphrey was
told he had a right to his own opinion on wages and
working conditions, but that paragraph 8 and the third
"belief' contained therein and set forth above were un-
acceptable. Lummus rules 8 and 17 were read to Pumph-
rey, and Moore and Nelson warned Pumphrey that he
could be discharged for the next infraction.
On cross-examination, Pumphrey testified that it was
his understanding that Nelson had only restricted his dis-
tribution of the allegations concerning bribery and a sell-
out. He remembered that on June 12, he had been
warned about rules 8 and 17 but he "couldn't tell which
one he was being warned most about."
The Telephone Calls
On July II or 12, Pumphrey began an attitude survey.
His goal was to uncover "the opinions and attitudes of
the work force concerning our wages, our union leader-
ship, whether . . . they believe the rumors they may
have heard concerning sell-outs." He testified that he
picked four men at random from the union bulletin
board: Stelson Register, N. L. Farless, William Croley,
and Dallas Hammock. Pumphrey knew none of the men
personally.
i. Testimony of Valerie Farless and N. L. Farless
Valerie Farless testified that she received a telephone
call between noon and 2 in the afternoon. Pumphrey
identified himself as a union representative or union
troubleshooter. She said Pumphrey told her that he
wanted her husband to come to a meeting. Valerie Far-
less also stated that Pumphrey asked how her husband
became a journeyman in only 4 years. He wanted to
know if he had done anything to make them put him up
there. Farless explained that her husband had worked
there for about 20 years. Pumphrey said he had a list
that showed differently.
Then Pumphrey told her he thought someone might
be getting a car or a deal. Farless said she would have to
talk to her husband. When her husband came home, Far-
less told him about the telephone call.
N. L. Farless was angered over the call because his
wife was facing several operations. He went to Parnell,
the union president, who advised him to speak to Moore.
Farless testified that he asked Parnell if this harassment
could be stopped. He "mentioned to him that if I knew
who Pumphrey was, more than likely I would take mat-
ters into my hands and get a hold of him." After Farless'
conversation with Moore, Pumphrey called back and
asked Farless to a meeting. Rather than addressing angry
words at Pumphrey, Farless asked him if the meeting
had union sanction. Pumphrey said he could get sanc-
tion. Pumphrey began to question him about what went
on but Farless told him not to call again and hung up.
Farless did not confront Pumphrey at the plant and
though she was upset over the call, Mrs. Farless had
awaited her husband's return from work to relate the in-
cident rather than calling him at the plant.
2. Dallas Dale Hammock
Dallas Hammock testified that on a Sunday he re-
ceived a telephone call from Chester Pumphrey who
identified himself as a union member. Pumphrey asked
him a series of questions: are you satisfied with the con-
tract; are you a union member; are you aware that jour-
neymen get the most money in the contract; are you a
journeyman; do you think union officials sold out at con-
tract time; has anyone asked you what you would like in
the contract; would you go to a meeting at my house;
are you going to the next union meeting. Hammock an-
swered all of the questions and said he would go to a
meeting.
The next day, Hammock asked union steward Carl
Blanchard if Pumphrey was a union official and autho-
rized to hold a meeting at his house. Blanchard said no.
Hammock went to Parnell who sent him to Moore.
Hammock repeated to Moore the questions asked him by
Pumphrey about whether he thought there was a sellout,
and the journeyman's higher pay. On cross-examination,
Hammock testified that Pumphrey did not accuse anyone
of taking a bribe and that Hammock did not feel har-
assed. He went to Moore, however, because he felt that
Pumphrey was trying to split up the Union by his ques-
tions about the higher rate for journeymen.
3. William E. Croley
Croley received a telephone call from Pumphrey on
July 14. He testified that Pumphrey asked him questions
similar to those of Hammock's testimony. Croley men-
tioned the call to Parnell because he had just joined the
Union and wanted to clarify matters. Parnell routed him
652
LUMMUS INDUSTRIES, INC.
to Moore, but Parnell also said he would take care of it
because others had received the telephone call. Even
though Croley was not asked for the questions Pumph-
rey asked, he told them to Moore anyway. Later, Croley
met Farless who told him that he received a telephone
call too. On cross-examination, Croley acknowledged
that he answered all of the questions, did not hang up,
and ended the conversation on a cordial note.
4. Stelson Register
On July 15, Register's wife received a telephone call
by Pumphrey when Register was at work. When Regis-
ter came home, his wife was upset. She asked "What's
going on at the shop?" According to Register, Pumphrey
asked Register's wife if she would answer some ques-
tions. His wife said that she would try. Pumphrey then
asked if the Company was treating her husband fairly.
She said, "You'll have to ask my husband." Pumphrey's
next question was, "Is your husband getting fair repre-
sentation?" Mrs. Register reiterated her reply that he
would have to ask her husband. According to Mrs. Reg-
ister, Pumphrey said, "Well lady then you're not going
to cooperate with me." I conclude that Mrs. Register
was upset because she did not know what was going on,
and, in turn, her reaction made her husband perturbed as
well.
After this call, Register went to Parnell and com-
plained, explaining to Parnell that he and his wife were
upset by it. Parnell advised Register to relax because
other members had been called and the Union was going
to take care of it. Later the same day in a chance meet-
ing, Parnell reassured Register without elaboration that
the responsible party was ". .. down now."
5. Pumphrey's testimony on the telephone calls
Pumphrey admitted making the calls. He could not re-
member exactly what he said to each person but denied
asking Mrs. Farless why her husband was a journeyman
and said that he hung up on the wives as soon as they
asked him to stop. He testified that the wives offered him
suggestions about what to include in the new contract
such as health insurance and no-strike clauses, and that
he received no threats resulting from the telephone calls.
Pumphrey's Discharge
On July 18, Moore called Pumphrey into his office
and asked him if he had made the telephone calls.
Pumphrey admitted making the telephone calls. Moore
had a separation notice ready. The notice cited rule 17
(slanderous statements) as the reason for discharge.
Moore further testified that Pumphrey had been warned
on June 12 about violating both rules 8 and 17, and that
Pumphrey was informed that based upon two prior
warnings, including the strong one on June 12, noted
above, and another on May 7, by Stone that Moore had
decided to discharge him.
Analysis and Conclusions
Respondent's no-distribution rule maintained and en-
forced by Respondent, not being confined to working
time in working and nonworking areas or nonworking
time in working areas, and the no-solicitation rule main-
tained by Respondent, not being confined to working
time, were presumptively invalid on their face." The
Singer Company, 220 NLRB 1179, 1180 (1975), and cases
cited therein. I so find with respect to Respondent's rules
7 and 8. An additional ground for this finding is the un-
lawful requirement that the employee seek permission
from his employer before engaging in (a) solicitation for
any purpose, which perforce could include purposes fully
protected and in which he is entitled to participate under
the Act; or (b) distribution of any literature; likewise a
subject over which the employer can exercise no such
unlawful dominion as these rules do. AMC Air Condition-
ing Co., 232 NLRB 283, 284 (1977). Thus, as the Board
stated therein, "Respondent cannot lawfully require an
employee to seek permission as a precondition to engage
. . . in protected, concerted activities in non-work areas
on the employee's free time."
It follows that the warnings issued to Pumphrey on
May 9 and on June 12, being based upon rule 8 found
herein unlawful on its face, further violated Section
8(a)(l) of the Act.
The question next arises whether Pumphrey's dis-
charge arose in whole or part from Respondent's en-
forcement of rule 8 for if it did then the discharge was
itself unlawful "... unless the distribution interfered
with the employee's own work or that of other employ-
ees...." The Singer Company, supra at 1181. As for the
first part of this question I believe that the General
Counsel has met the burden of fairly showing by a pre-
ponderance of the evidence that the discharge flowed, at
least in part from Respondent's enforcement of rule 8.
Respondent's discharge of Pumphrey, as stated by
Moore himself, was based in part on prior warnings
given Pumphrey pursuant to rule 8 on both June 12 and
May 7. While Pumphrey did not necessarily believe he
was discharged under rule 8, his subjective understand-
ing is not controlling; and, while I do not discredit
Moore's assertion, as such, that the rule was not the
cause for Pumphrey's discharge, rather his circulation of
defamatory accusations was, the express tie-in between
the discharge and earlier warnings admittedly based,
inter alia, on rule 8 provide ample support to conclude
the discharge flowed at least in part from an unlawful
rule and thus the discharge itself violated Section 8(a)(1)
of the Act. The Singer Company, supra at 1181. There
was no scintilla of evidence tending to establish that
Pumphrey's conduct interfered with his work or that of
other employees. Certainly there was no such conduct
by Pumphrey inside the plant which led to such interfer-
ences.
With regard to the telephone calls made by Pumphrey.
not literally within the reach of a no-distribution rule
anyway, even there it was the union president in each of
the four instances, who referred the speaker to Moore,
rather than a matter of employees' work being interfered
with by Pumphrey. The record in such respect still fails
to show any interference with work; in fact, Respon-
dent's own witness could not even approximate the time
possibly "lost" in employee discussion with Moore, dis-
cussion not unreasonably comparable with any talk over
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee's complaint or grievance as envisioned by
the grievance procedure in the collective-bargaining
agreement which is a normal occurrence. I conclude the
discharge violated Section 8(a)(l) of the Act. Switchcraft,
Inc., 241 NLRB 985 (1979).
I further find that Respondent's assigned reason for
discharging Pumphrey violated Section 8(a)(l) of the
Act. The evidence is clear that Pumphrey was directing
appeals, albeit sometimes by use of stinging charges and
innuendo, at employees and the plant community at large
to awaken it to possible abuses, inequities, alleged inertia
on the Union's part, and specific needed improvements in
working conditions. This was protected concerted activ-
ity. Samsonite Corporation Inc., 206 NLRB 343 (1973).
He sought plainly the exchange of comments, opinions,
and ideas, and if he imprudently repeated plant rumors,
and spoke to family members of employees who reason-
ably found, in some instances, that their lack of under-
standing about Pumphrey's purpose left them disturbed
by his calls, his was no personal grudge against either
the Union or Respondent.
It has been noted that labor disputes are not tea parties
where people speak decorously and politely. In Linn v.
United Plant Guard Workers of America, Local 114, et
at.,2 the Supreme Court held that labor-management re-
lations require uninhibited, robust speech declaring that
[the] most repulsive speech enjoys immunity provided it
falls short of a deliberate or reckless untruth." Similarly,
the Board has stated that, "Employees do not forfeit the
protection of the Act if in voicing matters of common
concern, they give currency to inaccurate information
provided that it is not deliberately or maliciously false."
Walls Manufacturing Company, Inc., 137 NLRB 1317,
1319 (1962).
Respondent argues that Pumphrey had no proof that
there had been bribery or a sellout and therefore created
deliberately false or malicious information. On cross-ex-
amination, Pumphrey admitted that he had summed up
general "belly aching" in his discussion of sellouts and
had heard rumors about bribery. Also, as noted above,
Respondent witnesses themselves established that there
were similar stories circulating prior to Pumphrey's ac-
tivities. Pumphrey impressed me as a sincere and honest
would-be reformer who acted to improve working con-
ditions. I do not find evidence of malicious intent or a
reckless disregard for the truth. Springfield Library and
Museum Association, 238 NLRB 1673 (1978).
The bulk of Pumphrey's communications as even Re-
spondent admitted, relates to working conditions. The
General Counsel correctly pointed to United Parcel Ser-
vice, Inc., 234 NLRB 223 (1978). In that case, the compa-
ny had charged that the union newspaper contained de-
famatory and obscene comments about the employer.
The Board found the activity protected despite the al-
leged obscenities contained therein and references to su-
pervisors as "stupidvisors" pursuant to the view that
most of the articles concerned working conditions and
the offensive matter was inextricably intermingled with
the other materials directed towards working conditions.
2 383 U.S. 53, 63 (1965).
In two other cases involving unsubstantiated accusa-
tions of bribery, the employees' conduct was found pro-
tected because, in the one, the employees' actions on
behalf of other employees did not lose protection simply
due to lack of proof and because the charge of a payoff
to the union official was made in the "heat" of the argu-
ment; and in the other because the charge or accusation
of impropriety was pertinent to the debate and did not
accuse any one specific person of bribery. Ben Pekin Cor-
poration, 181 NLRB 1025 (1970); and Tracy Towing Line,
Inc., 166 NLRB 81 (1967).
I have considered the arguments, ably presented by
Respondent's counsel, that Respondent was entitled to
protect the plant operations from potential disruption
arising from Pumphrey's telephone calls, as well as cases
cited by him to support Respondent's action. The record
shows that Pumphrey's calls to 4 out of the 700 to 750
employee plant force caused some "upset," no interfer-
ence with production; no substantial loss of worktime;
and no actual violence of any kind. It is significant that
the persons called either ended the calls on a cordial
note or answered a question and hung up, but that
Pumphrey received no threats himself and the men acted
in an orderly manner to bring their complaint or reports
about the calls up through channels, rather than taking
matters in their own hands. In addition, Croley and
Hammock's testimony, as well, indicate that Pumphrey
was taking a survey and not merely firing allegations of
bribery and sellouts during his calls, and that they were
not threatened or upset by the calls. Thus, Pumphrey's
protected right to address employees and members in the
plant community outweighs easily any notion of a
danger to plant order in this case, where such was not
proven to be real.
Following the Board's controlling precedent, I find
that Pumphrey's statements are protected. The leaflet did
not accuse anyone of actually taking a bribe and the
survey questions were mere questions and not assertions.
Certain courts have denied protection for obscenities and
statements which hold plant officials up to ridicule. See
Timpte, Inc. v. N.L.R.B., 590 F.2d 871 (10th Cir. 1979),
and Maryland Drydock Company v. N.L.R.B., 183 F.2d
538 (4th Cir. 1950). Insofar as these cases impose a
stricter standard than the Board, I am bound by Board
precedent, but such authority also supports my opinion
that because Pumphrey did not name names or use ob-
scenities, his conduct is protected.
I am not indicating that I approve of Pumphrey's tac-
tics in all respects nor do I dispute Respondent's good-
faith belief that they were warranted in discharging
Pumphrey. The survey, however, was an integral part of
Pumphrey's scheme to get suggestions from employees
and to stimulate activism on the part of the union mem-
bership, a theme which connects all of his activities and
which therefore constituted protected activity so that his
discharge for such conduct violated Section 8(a)(1) of
the Act. Transcon Lines, 235 NLRB 1163 (1978); Dreis &
Krump Manufacturing, Inc., 221 NLRB 309 (1975);
Jacobs Transfer, Inc., 201 NLRB 210 (1973); American
Cast Iron Pipe Company, 234 NLRB 1126 (1978); and
654
LUMMUS INDUSTRIES, INC.
Great Lakes Steel, Division of National Steel Corporation,
236 NLRB 1033 (1978).
III. THI EFFECTS OF THE UNFAIR L.ABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section 11,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local Lodge 1870 is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining and enforcing by warnings or other-
wise as described above, rule 8 which prohibits employ-
ees from distributing literature on nonworking time in
nonworking areas, where such distribution is protected
by Section 7 of the Act, Respondent has violated Section
8(a)(1) of the Act.
4. By maintaining rule 7 which prohibits employees
from soliciting on nonworking time, where such solicita-
tion is protected by Section 7 of the Act, Respondent
has violated Section 8(a)(1) of the Act.
5. By discharging Chester L. Pumphrey in part pursu-
ant to Respondent's unlawful no-distribution rule, Re-
spondent has violated Section 8(a)(1) of the Act.
6. By discharging Chester L. Pumphrey also because
he engaged in protected concerted activity, Respondent
has violated Section 8(a)(1) of the Act.
7. 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 unfair
labor practices violative of Section 8(a)(1) of the Act, I
shall order that it cease and desist therefrom and take
certain affirmative action, including reinstating Pumph-
rey and making him whole, in order to effectuate the
policies of the Act. All backpay computations shall be in
accordance with F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977). (See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).)
[Recommended Order omitted from publication.]
655