NLRB v. Thor Power Tool Company
| Decision Date | 08 October 1965 |
| Docket Number | No. 14972.,14972. |
| Citation | 351 F.2d 584 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THOR POWER TOOL COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, Michael N. Sohn, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Gary Green, Atty., N. L. R. B., Washington, D. C., for petitioner.
Edward R. Lev, Chicago, Ill., for respondent, Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, Ill., of counsel.
Before CASTLE, KILEY, and SWYGERT, Circuit Judges.
The National Labor Relations Board requests enforcement of its order directed against Thor Power Tool Company, Aurora, Illinois. The order directed an employee's reinstatement with back pay. It was based upon a finding that the company had discharged Donald Tinsley for engaging in protected activity in violation of section 8(a) (1) and (3) of the National Labor Relations Act. The principal question is the correctness of the Board's determination of the motive for the discharge. The Board's decision is reported at 148 N. L. R. B. No. 131.
Tinsley was a "grievance committeeman" for the union,1 whose function it was to assist other employees in the presentation of their grievances to the company. On September 20, 1963, employee George Bloom informed Tinsley that his timecard had been improperly altered by a company foreman in such a way as to deprive him of twenty minutes' pay. Tinsley, Bloom, and another grievance committeeman, Bob Gordon, confronted company superintendent George Russell with this problem in the latter's office.
In the ensuing discussion, Russell questioned the accuracy of Bloom's charges and deprecated his overall work record. Tinsley, who took an active part in the conference, defended the employee and sought to limit the exchange to the timecard matter. During the course of this investigation, Russell's temper began to flare. On several occasions, in progressively louder tones and climaxed by an obscene epithet, he objected to committeeman Tinsley's participation. The obscenity finally convinced Tinsley that Russell's attitude precluded any relief at that level and, so affirming, he proposed to end the meeting. As the employees were leaving the office, Russell overheard Tinsley mumbling something to Gordon. Distinguishing the words "the horse's ass," Russell diagnosed that they had been directed at him, hastened after Tinsley, and summarily discharged him.
The union subsequently filed a grievance with respect to Tinsley's discharge, which proceeded through several stages of the contractual grievance procedure but which was finally abandoned when Tinsley filed an unfair labor practice charge with the Board.
The trial examiner, after reviewing the evidence, concluded that "Tinsley was in fact engaging in an activity protected by the statute while he was discussing the grievance with Russell, and Tinsley's comment on leaving the office was so directly related to the grievance meeting as to be, in effect, a part thereof." The Board agreed with the examiner, then added a conclusion of its own:
We do not believe, on the basis of the entire record, that Tinsley was terminated solely because he used the derogatory term. Rather, we are satisfied that Russell\'s rising anger was directed to Tinsley throughout the grievance discussion because of Tinsley\'s participation in and conduct of the grievance meeting. The final explosion which resulted in Tinsley\'s discharge was the culmination and product of the grievance discussion, rather than the result of Tinsley\'s comment. As such it was part and parcel of Russell\'s anger at Tinsley for his vigorous participation in the grievance proceeding. Accordingly, we are of the opinion that Tinsley was in fact discharged because he participated in the presentation of the grievance, clearly a protected activity and that it was violative of Section 8(a) (3) of the Act.
We are...
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