NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,541, KBO, INC. subsidiary of KLOSTERMAN’S BAKING COMPANY and BAKERY, CONFECTIONERY & TOBACCO WORKERS INTERNATIONAL UNION, LOCAL 57, AFL-CIO., (Nov. 10, 1994), National Labor Relations Board, (Nov 10, 1994)

KBO, INC. subsidiary of KLOSTERMAN’S BAKING COMPANY and BAKERY, CONFECTIONERY & TOBACCO WORKERS INTERNATIONAL UNION, LOCAL 57, AFL-CIO.

315 NLRB No. 72.Case Nos. 9-CA-29905 and -29992. November 10, 1994 Bruce C. Nasdor, Administrative Law Judge..

Before Gould, Browning and Cohen.

Engrid Emerson Vaughn, for General Counsel. Charles H. Hollis and Rebecca G. Moore, for Respondent.

Discrimination--Employer Knowledge of Union Activity--Employee’s Protected Remarks.--By suspending an union activist employee for comments he made regarding an employer’s financing of its antiunion campaign, the employer discriminated against him. The remarks made by the employee were not so offensive, defamatory or opprobrious to the employer as to remove them from the protection of the Act, and the employee was merely repeating in good faith what he had been told by another employee. Section 8(a)(3).

Back reference: ¶4065.534.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions only to the extent consistent with this Decision and Order.

The judge dismissed the complaint allegation that the Respondent violated Section 8(a)(3) and (1) of the Act when, in the context of a union organizing campaign, it disciplined employee Rory Barnhart [2] for making remarks concerning the Respondent’s business practices to other employees. The General Counsel excepts, contending that Barnhart’s remarks were protected by Section 7 of the Act. We find merit in the General Counsel’s exception.

Early in 1992, Barnhart contacted the Union, which subsequently began an organizing campaign among the Respondent’s employees. Barnhart persuaded employees to sign union cards and attend union meetings and was open about his support for the Union in discussions with the Respondent’s supervisory staff.

On September 16, [3] 1992, [4] Barnhart had a conversation with employees Dave Abshear, the employees’ “round table” representative, [5] and Mark Horton. Abshear testified that Barnhart told them that Union representatives had a tape recording in which Mike Outlaw, the Respondent’s operating manager, stated that the Respondent was “taking money out of the employees’ profit sharing accounts to pay the lawyers to fight the Union.” Abshear asked Barnhart for the tape. He also reported Barnhart’s remark to Carol Mullin, the Respondent’s vice president for human resources.

On September 17, Barnhart was called to a meeting with Mullin and Plant Manager Robert Minshall. They asked Barnhart about his previous day’s conversation with Abshear and Horton, and Barnhart admitted telling them about the tape recording of Outlaw’s remarks. Mullin told Barnhart that taking money out of the employees’ profit sharing accounts “would be the same as lying and cheating and it was a real threat to the whole integrity of the company.” Mullin testified that Barnhart responded that the Company “had lied and cheated the people in the past. He felt it was his role to let everyone know what was going on.” Mullin asked Barnhart if he had the tape or could produce it. Barnhart initially stated he had it, but then stated he did not. Minshall suspended Barnhart until he produced the tape. Three days later, however, Barnhart was allowed to return to work although he never produced the tape.

The judge found that Barnhart raised and disseminated to employees a serious criminal charge against the Respondent, and that he did not make a serious effort to ascertain whether the tape substantiating the charge existed. The judge found that Barnhart’s remarks were made “in a reckless disregard for the truth” and were thus unprotected. We disagree.

It is undisputed that Barnhart’s remark to Abshear and Horton about the contents of the tape occurred in the context of a discussion of working conditions and the Union’s organizing campaign. As such, the remark occurred within the context of activity clearly protected by Section 7 of the Act. Under well-settled Board law, Barnhart’s remark would also be protected unless it was “so offensive, defamatory or opprobrious” as to remove it from the protection of the Act. Ben Pekin Corp., [1970 CCH NLRB ¶21,791] 181 NLRB 1025 (1970), enfd. [66 LC, ¶12,080] 452 F.2d 205 (7th Cir. 1971); Dries & Krump Mfg., [1975-76 CCH NLRB ¶16,350] 221 NLRB 309, 315 (1975), enfd. [79 LC ¶11,711] 544 F.2d 320 (7th Cir. 1976). A statement which is alleged to be libelous or defamatory will not lose its protection unless it is made “with knowledge of its falsity, or with reckless disregard of whether it was true or false.” Linn v. United Plant Guard Workers, [53 LC ¶11,061] 383 U.S. 53, 61 (1966). Contrary to the judge we do not find Barnhart’s remark so defamatory or opprobrious as to render it unprotected.

Employee Trent Wright testified, without contradiction, that he told Union Representative John Price that he had a tape of Outlaw stating that the Respondent’s antiunion campaign was being financed from the employees’ profit sharing accounts. Barnhart testified, without contradiction, that Price told him about the tape recording and its contents. In this context, it is readily apparent that Barnhart, in his conversation with Abshear and Horton, was simply relaying to them in good faith what he had been told by Price, and that he reasonably believed the report to be true. Neither the fact that Barnhart had not himself heard the tape nor that the information may have been inaccurate removes Barnhart’s remark from the Act’s protection. [6] Ben Pekin, supra; Dries & Krump Mfg., supra, Cement Transport, [1973 CCH NLRB ¶24,888] 200 NLRB 841, 846 (1972), enfd. [73 LC ¶14,250] 490 F.2d 1024 (6th Cir. 1974), cert denied [75 LC ¶10,364] 419 U.S. 828 (1974). American Shuffleboard Co., [1973 CCH NLRB ¶24,888] 92 NLRB 1272, 1274-1275 (1951), enfd. [20 LC ¶66,502] 190 F.2d 898 (3d Cir. 19510. Accordingly, we find that the Respondent’s suspension of Barnhart because of this remark violated Section 8(a)(3) and (1) of the Act, as alleged.