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Sullair P.T.O. Inc. v. National Labor Relations Board

decided: February 19, 1981.


Before Cummings and Cudahy, Circuit Judges, and Bonsal, Senior District Judge.*fn*

Author: Cummings

This matter is before us on a petition of Sullair P.T.O., Inc. pursuant to 29 U.S.C. § 160(f) to review and set aside a final order of the National Labor Relations Board issued against Sullair on July 15, 1980, and reported at 250 NLRB No. 104. The Board has cross-applied for enforcement of its order. We hold that the Board's findings do not support its legal conclusion and therefore deny enforcement.


Sullair, the wholly owned subsidiary of a larger corporate enterprise, is engaged in the manufacture, sale and distribution of air compressors installed as power-take-off units. Sullair's home office is in Michigan City, Indiana, and it does business in Indiana and elsewhere. The events giving rise to this dispute occurred at its plant in New Buffalo, Michigan, which employs approximately 12 production and maintenance workers. These employees are not represented by a union.

Among the fringe benefits Sullair provided its New Buffalo employees from 1975 to 1979 was the opportunity to buy unlimited quantities of gasoline at 35$per gallon. On May 31, 1979, Sullair posted on the New Buffalo plant bulletin board a notice that because of increasing cost and a shortage with its suppliers, starting June 1 employees would be able to buy only 10 or 15 gallons of gasoline per week, depending on whether they lived in New Buffalo or out of town, at a cost of 50› per gallon "until the shortage lessens with our suppliers."

Later that day,*fn1 General Manager William A. Jones was stopped on the shop floor near some employees who had questions and complaints about the changed gasoline policy. One of these employees was Terry Lee Boyle, who had been employed by Sullair as a mechanic at the plant since November 1977. Boyle told Jones that Sullair was "f] ] ] ] ]g" the employees by the new policy and asked how he, Boyle, was going to be able to afford the price increase "on his f] ] ] ] ]g salary." Jones suggested that Boyle could get another job if he thought he could do better. Jones then told the employees he would try to find out whether the change was temporary or permanent and that Sullair's Controller and Human Relations Committee would investigate the matter.

The next day, June 1, 1979, at the request of another employee, Plant Controller Douglas Sommers, who was subordinate to Jones, met in the shop lunchroom with seven or eight of the 12 employees to discuss the gasoline policy. During this meeting, Boyle became the primary employee speaking out against the change. When he asked Sommers "what the f] ]k" could be done about the change, Sommers replied that it was a policy change by the parent corporation. Thereupon Boyle said Sullair was attempting "to f] ]k the employees" and then asked if those "rotten m] ] ] ]r f] ] ] ] ]g c] ] ] ] ] ] ] ] ]s" at the main plant would ration gas there if there had been a gas shortage at the New Buffalo plant. Sommers told Boyle that he would be glad to stand there to talk about the gas program but not with Boyle's using such profanity. Sommers added that if Boyle were unhappy he could get a job somewhere else. Boyle said that if that was Sommers' answer, he was a "f] ] ] ] ]g poor manager."

Sommers immediately went to Jones' office and told him what had occurred. Ten to 20 minutes after the meeting had ended, Jones fired Boyle for "insubordination," reminding him of a previous incident in December 1978 when Boyle had been orally reprimanded for insubordination after complaining that he was being "f] ] ] ]d again" by the company and calling Jones a liar. On that occasion Jones warned Boyle that he would be terminated if such insubordination happened again and that he must not direct vulgar shop language toward management.*fn2

Three days after Boyle's discharge, Jones and Sommers prepared two memoranda for Boyle's personnel file reciting complaints about Boyle and his work. These memoranda indicate that Boyle was warned orally on January 11, 1979, to refrain from his continual complaining because it was having a detrimental effect on working conditions*fn3 and that on February 13 and May 9 other employees complained to management that it was difficult to work with Boyle because of his negative attitude.

On June 26, Boyle filed with the Board an unfair labor practice charge against Sullair asserting that he was wrongly fired for insubordination to Sommers. After a hearing, the Administrative Law Judge concluded that Boyle was engaged in activity protected under Section 7 of the National Labor Relations Act (29 U.S.C. § 157) when he voiced his June 1st complaint about the changed gasoline policy, that his obscene language in the course of the protest was not so serious as to deny him the Act's protection, and that Sullair had violated Section 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)) by discharging Boyle for engaging in protected activity.

The Board affirmed these findings and ordered Sullair to offer to reinstate Boyle, to expunge from its records any reference to the discharge, to make Boyle whole for any loss of pay and benefits suffered, and to post an appropriate notice. The order also required Sullair to cease and desist from the unfair labor practice found and from interfering in any like or related manner with employee rights under Section 7. This petition for review followed.


It is undisputed that Boyle was engaged in a concerted activity protected under Section 7 when he used the obscene language. In Dreis & Krump Manufacturing Co., Inc. v. National Labor Relations Board, 544 F.2d 320, 329 (7th Cir. 1976), this Court stated that "communications occurring during the course of otherwise protected activity remain likewise protected unless * * * "so violent or of such serious character as to render the employee unfit for further service.' " While it is for the Board to make an initial determination whether allegedly offensive conduct or language exceeds the protection of the Act, its determination will be disturbed on review when "illogical or arbitrary." National Labor Relations Board v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). Here we conclude that Boyle's insubordination clearly justified his discharge and that the Board's contrary determination was illogical and arbitrary.

The Administrative Law Judge found that the June 1st obscenities interspersed with Boyle's complaints about the gasoline policy were not so serious as to exceed the Act's protection because they were (1) not beyond the pattern of vulgar "shop talk" prevalent in the plant and (2) not directed at Sommers personally (App. 21-22). The record shows that employees at the plant were in fact given great latitude in lodging complaints and that the usage of vulgar or obscene words of sexual connotation was relatively common and tolerated. However, the record also shows that Boyle was an easily excitable person who used vulgar "shop talk" more than other employees and that in spite of warnings he did direct his obscenities at ...

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