United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union v. National Labor Relations Board

MEMORANDUM **

The United Steel Workers (the “Union”) petitions for review of the National Labor Relations Board’s (the “Board”) reversal of the Administrative Law Judge’s (the “ALJ”) determination that Allied Mechanical (“Allied”) committed unfair labor practices. We have jurisdiction pursuant to 29 U.S.C. § 160 (f), and we grant the petition in part and deny the petition in part.

In Allied Mechanical v. United Steel Workers (“Allied I”), 343 NLRB 631 (2004), the Board concluded that in early 2003 Allied committed various unfair labor practices in violation of §§ 8(a)(1) and (3) of the National Labor Relations Act (“NLRA”) and ordered Allied to take a number of remedial measures. Marcelo Pinheiro, a machinist for Allied and an active union supporter, was one of the targets of Allied’s unfair labor practices.

In Allied Mechanical v. United Steel Workers (“Allied II”), 349 NLRB 1327 (2007)&emdash;the decision we now review&emdash;the Board considered a new round of actions by Allied against Pinheiro that the ALJ found to be unfair labor practices. The Board affirmed the ALJ’s conclusion that Allied violated the NLRA when it denied Pinheiro’s request, made shortly after his…

concurring in part and dissenting in part:

I concur with the majority’s denial of the petition as to the September 5th DAN, but dissent from the majority’s grant of the petition as to Pinheiro’s suspension and termination. The Board determined that Pinheiro’s conduct “was inarguably rude and insubordinate and his discharge was consistent with [Allied’s] disciplinary policy.” Contrary to the majority, this conclusion is not “totally opposite” the ALJ’s finding on this issue. The Board’s determination that Pinheiro’s imprecation “suck d — k” or “suck my d — k” as he exited his supervisor’s office was “inarguably rude and insubordinate” does not conflict with the ALJ’s finding that the statement was made in frustration, rather than in anger.

Moreover, the ALJ’s finding that Pinhei-ro’s statement was made in frustration does not preclude the Board from concluding that Pinheiro’s discharge was consistent with Allied’s disciplinary policy. Although Pinheiro adduced evidence that profanity was commonly used on the factory floor, there is also evidence in the record from which the Board could conclude that profanity was not acceptable when used with a supervisor. While Allied retained…