Timpte, Inc. v. N.L.R.B., 78-1038

• Decision Date: 19 January 1979
• Docket Number: No. 78-1038,78-1038
• Parties: 100 L.R.R.M. (BNA) 2479, 85 Lab.Cas. P 11,070 TIMPTE, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 871

590 F.2d 871

100 L.R.R.M. (BNA) 2479, 85 Lab.Cas. P 11,070

TIMPTE, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 78-1038.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Oct. 24, 1978.

Decided Jan. 19, 1979.

Robert G. Good, of Good & Stettner, P. C., Denver, Colo. (Martin Semple, Denver, Colo., with him on brief), for petitioner.

Christine Peterson, Atty., N.L.R.B., Washington, D. C. (Marjorie S. Gofreed and Christopher W. Katzenbach, Attys., N.L.R.B., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel., Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., on brief), for respondent.

Before SETH, Chief Judge, BARRETT and DOYLE, Circuit Judges.

SETH, Chief Judge.

This is a petition by Timpte, Incorporated, to review an order of the National Labor Relations Board, with a cross-application by the Board to enforce its order. The matter concerns the discharge of Richard Gould who was an employee of Timpte. The Administrative Law Judge concluded that Timpte had violated section 8(a)(1) of the National Labor Relations Act in the discharge. The Board in its order " . . . decided to affirm the rulings, findings and conclusions of the Administrative Law Judge . . . and it adopts his recommended Order." The Board modified the remedy, but wrote no opinion and made no separate findings or conclusions.

The case reaches us in a somewhat unusual form in that there are no questions of credibility, and no disputed facts. The issues revolve around a letter written by the employee and circulated in the plant, and a written statement read by the plant manager, Steve Silvas, to the employee after the letter had been circulated.

The employee Gould was not discharged for writing the letter in question, but for his refusal to agree to instructions that he would not in the future circulate in the plant material with vulgar and indecent language. The admonition given Gould by the plant manager was specific in that it quoted examples from Gould's letter which were not to be used in the future. He was also instructed not to use language which was defamatory, that would ridicule or result in the "malicious belittlement" of plant personnel, nor to suggest a slowdown, walkout, sit-in, or any other form of action which would interfere with production.

The manager, at a meeting with Gould and the union president, asked Gould to abide by these restrictions in the future. Gould refused to agree to do so, and he was fired. At the meeting there was nothing more than what is described above, except that Gould stated he had a right to do what he was doing. He asked the union president for counsel and he told Gould to abide by the limitations. The plant manager at the meeting with Gould told him as to the vulgar and indecent language:

"While this language may be used in some conversations, we do have employees who probably do not wish to be exposed to such material and may take this distribution home to their family."

The material Gould had distributed was part of his campaign for an office in the union. It was campaign "literature." There had been a slowdown at the plant a few months before. This was during the negotiations for a new three-year contract which had been signed three or four months before this incident.

The campaign for a union office was assumed by the parties to be a protected activity. See NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358, and Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. The Administrative Law Judge considered the whole matter as "union business." He concluded in part:

"What actually happened on April 5 was a confrontation between an employer who overreached in attempting to maintain discipline and an employee who recognized and protested against the employer's intrusion into the private affairs of a union member who was communicating with other union members regarding union business. That intrusion had several areas of impact. First, Respondent arrogated to itself the right to edit what was essentially an internal union document using the excuse, which I have previously rejected that it had the right to control vulgar language, insults directed against management and inflammatory appeals. While that right may exist with regard to other material, it does not exist where the material is legitimate union-related business . . .."

This appears to be an unusual characterization of union business, and led to the erroneous legal position taken by the Administrative Law Judge. He found however that the action of Timpte was not a disparate application of the no-distribution rule as argued by the General Counsel and was not a setup. The rule was not found to be invalid but instead that in its application the "employer overreached in attempting to maintain discipline."

Thus was this use of the profanity, the use of filthy language, and the disparagement of employees, union stewards, and management a protected activity under the decisions? The written material was being circulated in the plant, and we must conclude that the management had the right to direct...