American Thread Co.

National Labor Relations Board - Board Decisions

May 7, 1979

242 N.L.R.B. 27 (N.L.R.B. 1979)

AMERICAN THREAD COMPANY. SEVIER PLANT
American Thread Company, Sevier Plant and Mike
Lee Sparks. Case 11-CA-7348
May 7, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND TRUESDALE
On September 21, 1978, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief, and
Respondent filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge concluded that
Mike Lee Sparks was lawfully discharged for cause,
and therefore recommended that the complaint be
dismissed. Because we conclude that Respondent
was, in fact, motivated by unlawful reasons rather
than the reasons which it asserts for Sparks' dis-
charge, we reverse the Administrative Law Judge and
find that Sparks was discharged in violation of Sec-
tion 8(a)(3) of the Act.
At the time of his discharge, Sparks had been em-
ployed by Respondent for 11 years and was consid-
ered to be a good worker. He had been active in a
union campaign in 1972, at which time he was ques-
tioned by two different company officials-both of
whom remained in positions of authority with Re-
spondent at the time of Sparks' discharge-concern-
ing his union activities. Additionally, some 8 months
before his discharge, Sparks received a written repri-
mand, a copy of which was placed in his personnel
file, for handing out a union card during working
time in violation of Respondent's no-solicitation rule.
The conduct which purportedly led to Sparks' dis-
charge occurred on December 2, 1977. Sparks, with
the knowledge of two male employees, Chesley Glenn
and Norman Dale, concealed himself between parked
vehicles behind Respondent's plant and urinated on
the ground. While he was so engaged, Glenn and
Dale called Tammy Carpenter, a female employee of
another employer, to a spot where Sparks could be
observed and brought Sparks' activities to her atten-
tion. She responded with an expletive and walked
away. Amused at her reaction, Glenn went into the
plant and told several others, including his supervisor,
what he and Dale had done. The incident was re-
ported to higher management, which determined to
suspend Sparks, and Sparks was informed of the ac-
cusations against him. At that time Sparks defended
his actions on the ground that his back was turned to
Carpenter. Sparks was suspended for 3 days.
During Sparks' suspension Glenn and Dale were
interviewed, but Carpenter and Sparks were not ques-
tioned. A decision was then made to discharge
Sparks. When Sparks returned to work on December
7 he was informed of his discharge. Upon his request
to speak to his accusers, Respondent sent a supervisor
to obtain a signed statement from Glenn and Dale
but did not call either into the meeting with Sparks.
Sparks was then discharged, purportedly for "obscene
conduct." No disciplinary action of any kind was
taken against either Glenn or Dale.
In considering the facts of this case, we are mindful
that it is not the Board's function to second-guess an
employer when discipline is imposed-whether it is in
response to a breach of implicit plant rules, a devi-
ation from norms of behavior acceptable in the com-
munity, or some other alleged deficiency-as long as
it is not imposed for a reason proscribed by the Act.
Thus, we are not necessarily concerned when a par-
ticular disciplinary action seems to us to be excessive,
unfair, or unwise. However, when it is alleged that the
reason assigned for the discipline is pretextual, our
attention must necessarily turn to the reaction of the
employer, both in proportion to the behavior in-
volved and in contrast with the employer's response
to similar behavior when engaged in by employees
who have not been involved in union activity. When
the evidence convinces us that similar transgressions,
when engaged in by other employees, would not have
resulted in an equally severe response, it is necessary
to inquire further into the employer's motives.'
Such an inquiry is not for the purpose of substitut-
ing our judgment for that of the employer. Rather, it
acknowledges the necessary limitations on the ability
of the litigation process to fully reflect industrial real-
ity:
I As the Fourth Circuit said in Neptune Water Meter Company, 551 F.2d
568, 570 (1977):
The rule is that if the employee has behaved badly it won't help him
to adhere to the Union, and his employer's anti-union animus is not of
controlling importance. But if the employee is a good worker and his
breach of the work rules trivial. the more rational explanation for dis-
charge may be invidious motivation. Such motivation can be found
from the absence of any good cause for discharge. This must be so
unless we are willing to assume something we know to be false: that
businessmen hire and fire without any reason at all.
In the end after weighing all relevant factors including particularly
the gravity of the offense. an unfair labor practice may be found only if
there is a basis in the record for a finding that the employee would not
have been discharged, though he may have been subjected to a milder
form of punishment for the offense. except for the fact of his union
actisity
242 NLRB No. 10
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be
available that is not also self-serving.... If [the
trier of fact) finds that the stated motive for a
discharge is false, he certainly can infer that
there is another motive. More than that, he can
infer that the motive is one that the employer
desires to conceal .... 2
In the instant case, we are persuaded that it is neces-
sary to consider Respondent's motivation more care-
fully.
We note initially that, in dealing with this incident,
Respondent took barely minimal steps to obtain
Sparks' version before deciding what discipline would
be appropriate. Subsequently, although "indecent
conduct" was not among the types of conduct listed
in Respondent's employee handbook as calling for
automatic discharge, Respondent summarily rejected
any lesser punitive measures, despite Sparks' good
work record and Respondent's stated policy that "dis-
charge is the last resort."
Respondent introduced evidence which was in-
tended to show that it considered transgressions of
this nature to be serious matters. However, the evi-
dence submitted does not support the Administrative
Law Judge's conclusion. In previous years Respon-
dent allegedly objected to employees' misuse of the
area behind its plant for these purposes, but took no
steps to identify and punish previous transgressors.
Nor was there evidence that employees were in-
formed that such behavior might be cause for disci-
pline or discharge. Thus, until a union activist en-
gaged in this activity, it was evidently considered to
be a minor matter by Respondent.
Respondent asserts that the seriousness of Sparks'
offense was aggravated by Carpenter's presence.
While we agree that it was deplorable that a female
employee was subjected to the treatment Carpenter
received, we note that this occurred through no fault
of Sparks, but was caused solely by the decision of
Glenn and Dale to draw her attention to the incident
for their own amusement. As noted earlier, Sparks
took care to shield himself from view. Thus, to the
extent that "obscene conduct" was involved here, it
was not Sparks' conduct, but rather the conduct of
Glenn and Dale in involving Carpenter and making
fun of Sparks, that was obscene. 3
2Shattuck Denn Mining Corporation (Iron King Branch) v. N.L. R.B., 362
F.2d 466, 470 (9th Cir. 1966).
3 Member Penello finds the conduct herein distinguishable from that in
Mueller Brass Co., 220 NLRB 1127 (19751, in which he dissented from a
majority finding that the employer in that case had unlawfully discharged an
employee for indecent conduct. In that case, the employee in question had
purposefully embarrassed female employees by displaying an indecent object
in a lewd manner. Here, however, as noted above, Sparks took pains to
shield himself from view, and there is no evidence of any attempt on his part
to embarrass Carpenter.
We are also unpersuaded by Respondent's asser-
tion that it had a practice of discharging employees
who engaged in "obscene conduct." Even assuming
that Sparks' conduct can be deemed obscene-and
we do not deem it to be such-the sole instance cited
by Respondent in support of this contention involved
the purposeful distribution of obscene material, and
we have only Respondent's self-serving statement
that the transgressor would have been discharged had
he returned from the 3-day suspension imposed. A
more accurate barometer of Respondent's policy is its
utter disregard of the major role played by Glenn and
Dale in this incident and its consequent failure to dis-
cipline Glenn and Dale. This condonation of their
"obscene conduct" indicates to us that Respondent
had no set policy of disciplining employees who en-
gaged in breaches of propriety-unless they were ac-
tive in union activities.
The absence of concurrent union organizational ac-
tivity at the time of the discharge does not shield Re-
spondent from any suspicion of antiunion motivation
here. Respondent was aware of Sparks' union sympa-
thies at the time of the last union campaign and, be-
cause of the presence in Sparks' personnel file of a
reprimand for soliciting on behalf of a union, Respon-
dent was cognizant of both the danger of renewed
union activity among its employees and Sparks' con-
tinued willingness to engage in activities on behalf of
a union. There is no question that Respondent op-
posed unionization of its employees. Based on the dis-
parate treatment of the participants in the events in
question, the evident lack of concern evidenced by
Respondent when similar use was made of the area
behind its plant in the past, and the perfunctory at-
tempts made to ascertain the identity of the real cul-
prits in this incident, we conclude that Sparks' con-
duct was a mere pretext seized on by Respondent to
rid itself of a known union adherent.4 Moreover, even
assuming, arguendo, that Respondent would have
taken some disciplinary action toward any employee
actually caught while engaged in similar activity-a
finding which, we note, is not supported by the evi-
dence in the record and indeed is contradicted by its
failure to take any disciplinary action against Glenn
and Dale, whose activities were the principal cause of
any arguable "obscenity" here-Respondent has not
established that it would have imposed the same dis-
cipline in the absence of its hostility toward union
organizational activities, and we therefore find that
' Civic Center Sports, Inc., 206 NLRB 428 (1973), cited by the Administra-
tive Law Judge. is inapposite. There, the employee had exhibited poor work
habits during his brief tenure with the employer and had previously been
warned that continued problems with absenteeism and tardiness would re-
sult in his discharge. His involvement in union activities could not shield him
from discipline for work-related difficulties. This is a far cry from the instant
case, where a concededly good worker was fired for what was at most a
minor indiscretion.
28
AMERICAN THREAD COMPANY, SEVIER PLANT
the severity of the discipline imposed here was exac-
erbated by Sparks' union activity.
In view of the foregoing, and upon the entire rec-
ord in this case, we conclude that Respondent dis-
charged Mike Lee Sparks in violation of Section
8(a)(3) and (1) of the Act, and that the aforesaid un-
fair labor practice affects commerce within the mean-
ing of Section 2(6) and (7) of the Act.
The Remedy
Having found that Respondent has violated the
Act in certain respects, we shall order that it cease
and desist therefrom and take certain affirmative ac-
tion necessary to effectuate the policies of the Act.
We shall order that it offer immediate and full rein-
statement to Mike Lee Sparks, without prejudice to
his seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of earnings
he may have suffered by reason of his unlawful dis-
charge by Respondent. Backpay with interest thereon
is to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
American Thread Company, Sevier plant, Marion,
North Carolina, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating
against employees because of their interest in, or ac-
tivity on behalf of, a labor organization.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Mike Lee Sparks immediate and full rein-
statement of his former job or, if that job no longer
exist, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for
any loss of earnings he may have suffered by reason
of his unlawful discharge by Respondent in the man-
ner set forth in the section herein entitled "The Rem-
edy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Marion, North Carolina,
copies of the attached noticed marked "Appendix."6
Copies of said notice, on forms provided by the Re-
gional Director for Region I I, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region II11, in
writing, within 20 days of the date of this Order, what
steps Respondent has taken to comply herewith.
6 In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT discharge or otherwise discrimi-
nate against employees because of their interest
in, or activity on behalf of, a labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under the National
Labor Relations Act.
WE NWILL offer Mike Lee Sparks immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or
other rights and privileges previously enjoyed,
and WE WILL make him whole for any loss of
earnings he may have suffered by reason of our
unlawful discharge of him, with interest.
AMERICAN THREAD COMPANY, SEVIER
PLANT
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge: This
case was heard at Morganton, North Carolina, on June 26-
27, 1978. The charge was filed by Mike Lee Sparks on De-
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cember 13, 1977,' and the complaint was issued on Febru-
ary 15, 1978. The sole issue presented is whether American
Thread Company, Sevier Plant, herein called Respondent,
discriminatorily discharged Mike Lee Sparks because of his
activity on behalf of a union thereby violating Section
8(a)(3) and (I) of the National Labor Relations Act, herein
called the Act.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the General Counsel's oral argument at the hearing and of
Respondent's oral argument and subsequently filed brief, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, is engaged in the
finishing of cotton threads with a place of business referred
to as the Sevier Plant at Marion, North Carolina. During
the past calendar year Respondent at its Sevier plant pur-
chased and received goods and raw materials valued in ex-
cess of $50,000 directly from points located outside the
State of North Carolina, and during the same period of
time manufactured, sold, and shipped goods valued in ex-
cess of $50,000 directly to points located outside the State.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Charging Party, Mike Lee Sparks, was employed by
Respondent in its receiving department and worked as a
truckloader for a period of about 11 years prior to his dis-
charge on December 7. As far as the record shows he was a
good employee, although from uncontradicted evidence
submitted by Respondent Sparks he had been orally
warned on two occasions in the year of his discharge for
leaving his work area prior to the shift end buzzer' and on
one occasion, April 8, for "giving out union cards" contrary
to Respondent's "policy regarding solicitation."4 On the oc-
casion of the latter warning Sparks denied that he had been
giving out union cards. Nevertheless, Sparks testified that
he had been involved in union activity at Respondent's
plant on three different occasions, the first being, by his
recollection, in 1973 and the last being in June 1977. The
extent of such activity was soliciting about 15 or 20 employ-
ees to sign union authorization cards and attending several
union meetings.
'All dates are in 1977 unless otherwise stated.
2 The transcript is hereby corrected to reflect "Judge Brandon" wherever it
presently reads "Judge Hutton."
3 March 24 and June 8.
4 Resp. Exh. 8. Respondent maintained a no-solicitation/no-distribution
rule which appeared valid on its face and which was not attacked as unlaw-
ful by the General Counsel herein.
The name of the union on whose behalf Sparks was engaged is not re-
flected in the record. Although the complaint alleges that Amalgamated
Clothing and Textile Workers Union, AFL-CIO, is a labor organization,
Respondent's answer stated that Respondent was without knowledge of the
Sparks testified that the Union won an election at Re-
spondent's plant in 1973 or 1974. Wade Bowman, Respon-
dent's industrial relations manager for the Sevier plant, tes-
tified that the election was in June 1972 and that it was set
aside due to "irregularities" and a second election held in
September 1972 was lost by the Union. There was no other
union activity, according to Bowman, until April, but that
union activity was not sustained, and as far as he knew,
contrary to Sparks' testimony, there was no union activity
at the plant in June. Bowman's recollection appeared to be
more positive and accurate than Sparks' with respect to the
timing of the election and union campaigns. Sparks' recol-
lections were vague and uncertain and his testimony re-
garding the last union campaign as being in June was con-
tradicted by his prehearing statement which indicated that
the last prior union activity had been 2 years prior to his
discharge. Accordingly, I credit Bowman's testimony where
it contradicts Sparks' with regard to the timing of the union
elections and campaigns.6
Sparks testified that right after voting in the first election,
and as he was returning to his job, he was asked by Bill
McBee, plant manager, in the presence of employee Ches-
ley Glenn, if Sparks had "voted right." Sparks replied that
he had. After the election Sparks attended a union victory
party about which he was subsequently quizzed by Charlie
Duncan, consumer products supervisor for Respondent,
and by Plant Manager McBee. Sparks credibly testified that
Duncan told him he had heard that Sparks had gone to the
union party and Sparks acknowledged that he had. Duncan
then remarked that he had heard that Sparks got a "whole
lot of beer up there at the party." Sparks replied affirma-
tively and Duncan "just laughed." Within a few minutes
thereafter, according to Sparks, Plant Manager McBee
asked Sparks if he had gone to the union party. When
Sparks replied that he had McBee stated "I heard that you
carried off all the beer," and Sparks responded, "all I could
get."
Aside from the discussion Sparks had with his supervisor,
Joe Biddix, inventory control supervisor, concerning, in
Sparks words, "passing out union literature on company
time,"' Sparks experienced only one other occasion when a
supervisor discussed a union with him. That was about 3
weeks after the discussion with Biddix, and on that occa-
sion, still according to the uncontradicted and credited tes-
timony of Sparks, Sparks was stopped in the plant by
McBee who asked Sparks if he was "for the Union." Sparks
stated he was not and McBee replied, "Well, we don't need
truth of the allegation, and the General Counsel submitted no evidence on
the point. I find it unnecessary to make any specific findings on the allegation
in view of my ultimate conclusions in this case and because Respondent
concedes that it was aware that Sparks had been engaged in "union activity"
as demonstrated by the warning given him for soliciting "union cards" in
April.
6 As previously noted, the record of oral warning given Sparks for "giving
out union cards" was dated April 8 thus corroborating Bowman's testimony
regarding the existence of a union campaign at that point in time.
' Since Biddix talked to Sparks only one time about the Union or passing
out union material, I conclude this is the same event recorded on Respon-
dent's employee records for Sparks as the April 8 oral warning by Biddix,
even though Sparks testified he was not "warned" and denied to Biddix that
he had been passing out union cards on company time.
30
AMERICAN THREAD COMPANY, SEVIER PLANT
the Union in here, we can't stop and talk like we are doing
now if we get a union."
Respondent admitted through the testimony of Wade
Bowman that it was opposed to having a union represent its
employees. This position is consistent with a statement in
an "Employees' Guide" booklet generally distributed to its
employees to the effect that Respondent had "every inten-
tion of operating our plant in such a way as to make it
unnecessary for you as an employee and a member of our
team to have to rely upon anyone outside of our company
or to deal through anyone but yourself directly with your
supervisor and the company on any problem that may be of
concern to you." Also in keeping with this position Max
Poore, industrial relations director for Respondent's south-
ern plants, made a speech to employees in which he dis-
cussed the Union, and, according to Sparks, "told the bad
parts" about the Union and stated that "unions cause trou-
ble." Sparks' testimony as to the content of the speech was
not contradicted by Respondent and is credited. However,
while Sparks placed this speech in June or July, I credit
Bowman's recollection that it was in April.8
B. The Discharge of Sparks
The circumstances of Sparks' discharge are not in signif-
icant dispute. The discharge grew out of an incident occur-
ring on December 2. On that date around 8:30 a.m. Sparks
was unloading trailers. Having finished unloading two trail-
ers and during the switch over to a third trailer Sparks
decided he would "go to the bathroom." Since the "bath-
room" was over 150 yards away he went outside the rear of
the plant where he encountered employees Chesley Glenn
and Norman Dale who were sitting in a trash truck facing
the rear wall of the plant building contemplating taking a
break. Glenn asked Sparks for the time and Sparks gave it
to him and added that he needed to "pee real bad." Glenn
told him to "step back there" and "nobody can see you."
Sparks proceeded to the rear of the trash truck and to the
right rear of an adjacent station wagon belonging to Robert
Ayers of Ayers Food Service which ran concessions in the
plant. There Sparks proceeded to urinate on the ground.
Dale suggested to Glenn that they play a joke on Sparks
by calling a girl employee-attendant of Ayers Food Service
over to their vehicle where Sparks could be observed. At
that point the girl, Tammy Carpenter, was attending an
Ayers Food Service truck which was parked on the other
side and slightly to the rear of Ayers' station wagon. Glenn
followed Dale's suggestion and called Carpenter over to
their vehicle. Carpenter responded by coming over to a
point between Ayer's station wagon and Glenn's vehicle
where Glenn asked Carpenter "what is the matter with
Sparks?" Carpenter, after noticing Sparks, looked at Glenn
and stated "you damn shit ass" and turned and walked off.
I The record shows that Respondent's counsel in asking Bowman about
the "speech" referred to the speech being made by "Mr. Morgan." Similarly,
Respondent's counsel in cros-examinating employee Chesley Glenn asked
about a speech by "Mr. Max Morgan." I conclude that if the record itself is
not in error the reference to "Max Morgan" rather than Max Poore was
inadvertent and the witnesses understood the references to be to Max Poore's
speech. No "Morgan" is identified in the record.
Sparks who admittedly was urinating at the time, but with
his back to Carpenter, "cut it off" when he heard her say
something. Sparks then returned to work.9
Glenn, amused at the joke he had played on Sparks, went
into the plant for his break and laughingly told other em-
ployees of the incident. Glenn also told his supervisor, Wil-
lard Hollifield, maintenance supervisor, who, according to
Glenn, initially laughed but then his look turned "sour,"
and he walked off.
Hollifield reported the matter to Joe Biddix who in turn
reported the incident to Bill Henline, assistant plant man-
ager, and a decision to suspend Sparks was made. Biddix
then proceeded to talk to Sparks and advised him of what
he had been accused of. Sparks, according to Biddix's testi-
mony which is credited on the point, did not deny the inci-
dent but only defended on the basis that his back was
turned to "the lady" when urinating. Biddix thereupon sus-
pended Sparks for 3 days. Because Sparks did not have a
way home at that time of day Biddix drove Sparks home, a
distance of 16 or 17 miles one way according to Sparks.
Sparks credibly testified, without contradiction from Bid-
dix, that during the drive to Sparks' home Biddix told him
that he hated "this so bad he could cry if it would do any
good," that Sparks was the "best operator in the mill" and
that "if it just hadn't gotten into the hands of the wrong
people, if they had come to him before it got to the wrong
people, he thought that he could have got it stopped."
During the suspension an investigation of the matter was
conducted by Bowman who interviewed Glenn and Dale
but not Sparks or Carpenter.'d As a result of his investiga-
tion on December 2, Bowman testified that he concluded
Sparks should be fired. Subsequently, according to Bow-
man's credited testimony, after conferring with Max Poore,
Bill Henline, and Joe Biddix a decision to fire Sparks was
made. On December 7 after his 3-day suspension expired
Sparks reported to work and was referred to Bowman's of-
fice by Biddix. In Bowman's office Bowman announced the
decision to terminate Sparks. Sparks testified he told Bow-
man he would like "to hear them two boys that said they
seen me." Bowman asked if he was denying it, and Sparks
admitted he was not but that he did not believe anybody
had actually seen him urinating. Bowman left the office "to
get their [Glenn's and Dale's] word." Bowman did in fact
reinterview Glenn and Dale, wrote out a brief statement"
which the two signed, and returned to the office and com-
pleted the discharge of Sparks. Sparks' release notice to
Respondent's personnel department signed by Biddix and
signed as approved by Bowman reflected that he was re-
leased due to "Disorderly conduct." Under the remarks sec-
' The foregoing description is based upon a composite of the testimony of
Glenn, Dale, and Sparks which was not in significant dispute, and which I
credit with respect to the incident. Carpenter was not called to testify.
't Carpenter left work on December 2 before Bowman could talk to her
and was subsequently away from work due to weather and unavailable for
interview according to Bowman. She was interviewed by him after Sparks'
discharge, however.
B Resp. Exh. 4.
2 G.C. Exh. 3.
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion "Indecent conduct" was noted.'" His performance rat-
ing was marked good and the remarks section thereunder
contained the statement "No complaint against the way
Mike did his job."
C. Contentions of the Parties
It is the General Counsel's contention that Sparks was
discharged because he had engaged in union activity, and
the urination incident was simply seized upon as a pretext
in order to effectuate the discharge. In support of this con-
tention the General Counsel argues that Respondent in its
zealousness to effectuate Sparks' discharge ignored its own
disciplinary procedures and its own policy that discharges
were a last resort. Except for "serious offenses" disciplinary
actions under Respondent's "Employees' Guide" were pro-
gressive in nature providing for oral warning, written warn-
ing, and layoff penalties. Further, indecent conduct was not
listed in the employees' guide as an example of the kind of
misconduct which would "leave the Company no choice
but immediate discharge." The discharge of a good em-
ployee with I years of service without following progres-
sive discipline, according to the General Counsel, can only
lead to a conclusion that the discharge was pretextual.
In further support of his pretext theory the General
Counsel notes Respondent's general opposition to unions,
its admitted knowledge that Sparks had handed out union
cards, and its disparate treatment of Sparks as shown by
Respondent's failure to even reprimand Glenn or Dale for
their participation in the urination incident and the at-
tempted embarrassment of either Sparks or Carpenter.
Other evidence discussed infra, that other employees uri-
nated outside at the rear of the plant, and the absence of a
general rule against urinating outside is also supportive of a
pretext theory, according to the General Counsel.
The Respondent's position predictably is that Sparks was
discharged for cause, the basis of which he admits. Respon-
dent argues that Sparks knew or should have known that
his urination in an open area in the presence of other em-
ployees constituted indecent conduct thus violating a rule
he was admittedly aware of. Respondent through its wit-
nesses Bowman and Biddix, the only participants in the
decision to discharge Sparks who testified at the hearing,
denied that union considerations were involved in Sparks'
discharge. Rather, and in essence, Respondent contends it
had a right to be concerned over the urination incident
because of the number of women it employed in the area' 4
and its conclusion with respect to the seriousness of the
offense and discipline to be imposed, notwithstanding
Sparks' length of service and generally clean record, was an
area of management prerogative not to be usurped by the
Board.
[ Respondent's posted plant rules, Resp. Exh. 6, provide in pertinent part:
Any employee having been found to have violated any of the following
will be subject to discipline or discharge depending upon the circum-
stances in each situation.
4. Fighting, playing, gambling, indecent conduct or language while
on duty or on Company property.
I4 According to Bowman, 50 percent of the employees that work in the
plant were women.
D. Discussion and Conclusion
What makes the legitimacy of the discharge of Sparks so
highly suspicious is the minor nature of his offense when
weighed in terms of the value of his services as a good
employee for more than 11 years.' 5 This is not to say that
his indiscretion in urinating at the rear premises of the plant
can be condoned. Discipline short of discharge would be
unquestionably appropriate. Discharge, however, requires
closer examination because the severance, beyond being re-
sponsive to the offense, could serve a multiple purpose in-
cluding the elimination of an individual whose known
union advocacy in prior union campaigns called itself to
management's attention.
The weakness of the basis for discharge is also pointed up
by evidence from General Counsel that urination outside
the plant building but on plant premises was not an unusual
event. Thus, Chesley Glenn testified that he had seen sev-
eral employees urinate outside the plant and had even testi-
fied that he himself had done so several times. While he was
unable to specify any employees other than himself by
name, he testified he had seen certain named "supervisors"
urinate outside. However, with the exception of one occa-
sion, such prior instances took place more than 6 or 7 years
prior to Sparks' discharge. One alleged "supervisor," Lloyd
Stevens, according to Glenn, had relieved himself outside
between two box cars approximately 2 months after Sparks'
discharge.' Employees Reid Queen, Jr., and Homer Gerald
Butner called as witnesses by the General Counsel similarly
testified that they had observed employees urinate outside
the plant, with Butner also admitting that he himself had
engaged in such conduct. Neither could establish supervi-
sory knowledge of such conduct.
Sparks' offense does not appear to be greater simply be-
cause through no fault of his own a female was called into
i' The minor nature of the offense was implicitly recognized by the deci-
sions of the Employment Security Commission of North Carolina dated De-
cember 29, January 18, and March 22, 1978, which found Sparks had not
engaged in misconduct in connection with his work for which he could be
disqualified from receiving unemployment compensation. G.C. Exh. 6(a)-(c).
Respondent objected to the receipt of G.C. Exh. 6(a)-(c) on the basis of
relevance and a North Carolina Statute (N. C. Gen. Stat., sec. 96 150)) in
effect making "all reports" with respect to a claim for benefits absolutely
privileged communications. While not binding on the Board, the decisions of
State employment commissions have probative value. Duquesne Electric and
Manufacturing Company, 212 NLRB 142 (1974); Aerovox Corporation, 104
NLRB 246 (1953). They are not controlling, however. Supreme Dying
Finishing Corp. and Valley Maid Co., Inc., 147 NLRB 1094, 1095, fn. I
(1964). Reports to commissions may not be considered where barred by
statute. See, e.g., Carpenters Local Union # 224, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO (Peter Kiewit & Sons Co.l, 132
NLRB 295, 332-336 (1961). I do not deem the North Carolina Statute to
apply to decisions of the Commission as opposed to "reports" to that body
by a party. In any event, I have considered the Commission's decisions not
as establishing the absence of "misconduct" on the part of Sparks but only as
reflecting that a reasonable basis exists for a difference of opinion as to the
degree of seriousness of the offense for which he was discharged.
16 While I found Glenn to be a generally credible witness even if not
impartial because of his friendship with Sparks, he was not questioned about
the exact titles or jobs of the "supervisors" he saw urinating. Stevens and the
other "supervisors," Don Washburn, Dewitt Mace, and Bill Countess men-
tioned by Glenn, were not named in the complaint as supervisors and their
supervisory status was not litigated. I therefore do not regard the record as
establishing their status as supervisors within the meaning of the Act and
impute no knowledge to Respondent of their conduct pnor to Sparks' dis-
charge.
32
AMERICAN THREAD COMPANY, SEVIER PLANT
the picture. There is no evidence that he deliberately ex-
posed himself to Carpenter or otherwise sought to embar-
rass her. Moreover, one tends to have little concern for the
modesty of the girl in view of her language and response to
Glenn and Dale which no doubt contributed to the enjoy-
ment of the "joke" they had played on Sparks.
Respondent's failure to take any disciplinary action
against Glenn and Dale for their participation in the inci-
dent also, as the General Counsel contends, contributes to
the "suspicion" that other motivations were involved in Re-
spondent's discharge of Sparks. While Sparks by his con-
duct "created" the setting for the incident, it was Glenn and
Dale who magnified the incident by involving Carpenter.
To this extent then, they were not just witnesses to the event
but were participants. To excuse such complicity as a joke
as Respondent did to explain the absence of disciplinary
action against them smacks of disparate treatment sugges-
tive of ulterior motivations in the discharge of Sparks.
Nevertheless, and notwithstanding the foregoing, there is
precious little in the way of evidence to establish more than
a suspicion that the discharge was discriminatorily moti-
vated. "[M]ere suspicion cannot substitute for proof of an
unfair labor practice." Lasell Junior College, 230 NLRB
1076 (1977). See also Kings Terrace Nursing Home and
Health Related Facilit'. 229 NILRB 1180 (1977); DSL M/lk.,
Inc., 202 NLRB 970 (1973). There are a number of factors
which militate against a finding of a violation in Sparks'
discharge. I am not persuaded by the General Counsel's
evidence noted above that the use of the premises outside
the plant as a restroom by male employees was such a wide-
spread or extensive practice as to be the common occur-
rence the General Counsel would have me believe. More-
over, the evidence, in my view, fails to establish knowledge
on the part of management of any particular employee's
urination on the premises, aside from Sparks. On the con-
trary, the evidence from Respondent's witnesses shows that
when Respondent's supervisors suspected, on the basis of
odor, that employees were urinating outside the plant they
moved to stop it by advising employees not to do so. Thus.
Wayne Buchanan, customer service manager, testified that
in 1973 when he was general foreman of distribution and
truckloading he detected an odor of urine in the dock area
and gave instructions to his foreman to tell employees to
quit using the back outside as a restroom. Similarly. Ralph
Hollifield. terminal manager, testified that he noticed a
urine odor in the dock area about 8 years ago and in-
structed his employees that if they were the guilty' parties
they were to stop it immediately. The testimony of Bu-
chanan and Hlollifield was not rebutted and is credited. The
reasonableness of such restriction cannot be gainsaid. Man-
agement concern over the use of the outside premises as a
restroom would thus provide a legitimate basis for disciplin-
ary action. Given the reasonableness of the concern, union
membership or support would not license an employee to
urinate outside designated restroom areas anymore than it
would license him to urinate on the factory floor. '
"' See The Hiart: Mountain Corporation. 228 NLtRB 492 (1977). where the
Board found no violation of the Act in the discharge of a union adherenl on
the emploser's belief thal the discharged emphloee had urinated on he flc-
tory floor
Furthermore, and in any event, there was more involved
in the Sparks incident than the use of the outside as a rest-
room. While Sparks may not have intended tfor his act to be
observed, he put himself in a position where he ran the risk
of observation and should have been aware of the potential
consequences. Carpenter was in the area when he began his
act and it matters little whether she observed Sparks be-
cause of the inadequacy of his cover or because her atten-
tion was called to him through Glenn. Viewed in this light.
Sparks' indiscretion cannot realistically avoid the "indecent
conduct" label imposed by Respondent.
There is also some plausibility to Respondent's failure to
take disciplinary action against Glenn and Dale. Neither
was responsible for Sparks' conduct. They only capitalized
on it for their own base amusement. In addition, Respon-
dent did present evidence that its action in discharging
Sparks was not completely without precedent. Thus, Re-
spondent in April had suspended an employee for disor-
derly conduct involving the creation and circulation of an
obscene drawing. The employee, according to the testimony
of Bowman, credited in this regard, escaped discharge only
because he failed to return to work after a 3-day suspen-
sion.
There is little evidence in the General Counsel's case of
Respondent's union animus to a degree sufficiently strong
to impel Respondent to violate the law in order to prevent
unionization. It is true that Respondent. as its employee
booklet suggested and as Bowman testified, opposed union
organization of its employees. It is further true that Poore in
his speech to employees stated that Unions "cause trouble."
Such a position and such expressions unaccompanied by
threats, promises, or coercion would not support a finding
of union animus warranting an inference of a willingness on
the part of Respondent to resort to discriminatory dis-
charges in iolation of Section 8(a)(3). See Monmouth Col-
lege, 204 NLRB 554 11973). enfd sub non. H'einberg v.
N.L.R.B., 491 F.2d 752 (3th ('ir. 1974). However. McBee's
questioning of Sparks as to whether he was for the Union
and his added comment that "we" can not stop and talk "if
we get a union" does constitute conduct of a type which
might be considered as iolative of the Act if it had oc-
curred within the 6-month period prior to the filing of the
charge. It could in any event he considered as demonstrat-
ing some union animus supporting a finding of a willingness
by Respondent to resort to discriminatory action. But even
this degree of union animus losses significance when consid-
ered in relation to the size of Respondent's work forceR and
the remoteness in time from the alleged discriminatory dis-
charge.
Timing along may or may not serve to establish discrimi-
natory motivation in a discharge but it is always a material
fact to be considered. See. e.g., Lawrence Institute of 7Tech-
nologv, 196 NI.RB 28 (1972). The timing of Sparks' dis-
charge in relation to his union activities and Respondent's
knowledge thereof do not support a finding of' a pretextual
discharge here. here was no evidence of a union campaign
in progress at the time of Sparks' discharge which would
l TIhe charge. ( (' txh l(a), indicate, Respondent emploss 7(X) 800"
workers
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause Respondent concern because of his previous pro-
union activities. 9 Respondent's knowledge of Sparks' union
sympathies and activity predated his discharge by more
than 7 months.20 Indeed, Respondent's knowledge that
Sparks had attended a union party predated his discharge
by several years.
In view of the foregoing, and even if Sparks' discharge
may be considered inequitable when the offense is weighed
against his tenure as a good employee, I am not convinced
that any such inequity in the discharge establishes affirma-
tively or persuasively on this record that Respondent, in
discharging Sparks, was motivated by a desire to rid itself
19 There is some dispute even between the General Counsel's witnesses
regarding the extent of Sparks' union activities which would serve to distin-
guish him as a special object for retaliation by Respondent. Employee
Glenn, admittedly a close friend and acquaintance of Sparks, testified that he
did not know whether Sparks was for the Union or not. Similarly, Reid
Queen, Jr., an employee of Respondent, testified that he probably had more
contact with Sparks than any other employee in the plant, and Sparks had
once told him that he did not have anything to do with the last union
campaign. Respondent's witness, Robert Ayers, of Ayers Food Service, also
testified that in September or October Sparks "swore" to him that he was
"not working for the Union." Since Respondent admittedly suspected that
Sparks had passed out union cards, I find it unnecessary to consider any
conflicts between the above witnesses and Sparks regarding the extent of his
activity in behalf of the Union.
"Cf. Civic Center Sports, Inc., 206 NLRB 428, 435 (1973), where the
Board found a 3-month delay between union activity and a discharge did not
support a conclusion that the discharge was discriminatory.
of a union adherent. The General Counsel bears the burden
of proof in showing by a preponderance of evidence that an
employee was discharged for union activities. J. P. Sevens
and Co. Inc., 163 NLRB 217, 218 (1967), enfd. 388 F.2d 896
(2d Cir. 1967). That burden has not been sustained in this
case. Accordingly, and in view of the admitted and plausi-
ble basis for at least some form of disciplinary action
against Sparks and in the absence of persuasive evidence of
a causal link between Sparks' discharge and his union ac-
tivity, I find that Respondent did not violate Section 8(a)(3)
and (I) of the Act as alleged in the complaint. I shall, there-
fore, recommend that the complaint be dismissed in its en-
tirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent has not committed unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act by
suspending and discharging Mike Lee Sparks on December
2 and 7 respectively and subsequently failing and refusing
to reinstate him.
3. Respondent has engaged in no unfair labor practices
violative of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
34