Armour Con Agra

National Labor Relations Board - Board Decisions

Nov 30, 1988

291 N.L.R.B. 962 (N.L.R.B. 1988)

962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Armour Con Agra and United Food and Commercial
Workers International Union, AFL-CIO, CLC
Case 18-CA-9740
November 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 6 1988 Administrative Law Judge
Timothy D Nelson issued the attached decision
The Respondent filed exceptions and a supporting
brief and the Charging Party filed a brief in oppo
sition to the Respondents exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
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 I and
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
' The Respondent has excepted to som of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In its exceptions the Respondent contends that the judge erroneously
found the statements of Supervisors Crandall and Gaiser that employee
Lauritsen was transferred because of his union activities to be violations
of Sec 8 (a)(1) because these statements occurred outside the 10(b) period
This contention first raised in the Respondents exceptions is untimely
and thus has been waived by the Respondent Federal Management Co
264 NLRB 107 (1982) In any event even if we were to find merit in the
Respondents contention these 8 (a)(1) findings are cumulative and do not
affect the judge s recommended Order
As we adopt the judge s finding that the Respondent violated Sec
8(a)(l) by Supervisors Crandall s and Balek s statements to employee
Wolf that the Respondent took its adverse actions against Lauritsen be
cause of his union activities we find it unnecessary to pass on whether
Supervisor Crandall s conversation with employee Shnever was a sepa
rate 8(a)(1) violation as any finding of a violation would be cumulative
In his decision the judge inadvertently referred to Supervisor Jeffrey
Youngblood as Youngblut
2 Although we do not condone employee Lauritsen s attempt to break
into the nurse s office for medication and do not view this asserted reason
for the Respondents suspension and discharge of Lauritsen as merely
pretextual we nevertheless find in agreement with the judge that the
suspension and discharge were violative of Sec 8 (a)(3) and (1) of the
Act Under all the circumstances here including the Respondents
animus the judge s finding that what Lauritsen attempted to do was a
common practice by employees and the related independent 8(a)(1) vio
lations found by the judge which we affirm we find that the General
Counsel made a prima facie showing that Lauritsen s union activity was a
motivating factor in his suspension and discharge and that the Respond
ent has failed to demonstrate that it would have taken the same action
against Lauritsen in the absence of his engaging in union activity We
note in particular that the Respondent has not discharged employees who
engaged in misconduct considered by the Respondent to have been com
parable to Lauritsen s attempted bypassing of the lock i e actual theft
judge and orders that the Respondent Armour
Con Agra Inc Mason City Iowa its officers
agents successors and assigns shall take the action
set forth in the Order
Robert H Johnson Esq for the General Counsel
Patrick J Barrett Esq of Omaha Nebraska for the Re
spondent
Peggy A Hillman Esq of Chicago Illinois for the
Charging Party
DECISION
STATEMENT OF THE CASE
TIMOTHY D NELSON Administrative Law Judge
United Food and Commercial Workers Union (Union)
filed original unfair labor practice charges against
Armour Con Agra (Respondent) on July 22 1986 and
filed amended charges on August 8 1986 The Regional
Director for Region 18 investigated and on July 28
1987 issued a complaint alleging that Respondent had
violated Section 8(a)(1) and (3) of the National Labor
Relations Act Respondent answered denying any
wrongdoing I heard the case in trial at Mason City
Iowa on September 9 10 and 11 1987
The complaint alleges that Respondent violated Sec
tion 8 (a)(3) when it took three separate actions against its
employee Chris Lauritsen in 1986-transferring him to
the graveyard shift on February 10 suspending him on
July 18 and firing him on July 25-all because of his
union activities The separate 8(a)(1) counts are related
to the 8(a)(3) counts all but one of them commonly
allege that certain company supervisors told employees
that another employee [i e Lauritsen] had been trans
ferred [or suspended or discharged ] because the other
employee had engaged in union activities
On the whole record including the briefs filed by each
of the parties on my assessments of the witnesses and of
the inherent probabilities I make these
FINDINGS OF FACT
I OVERVIEW
The Respondent a corporation with head offices in
Omaha Nebraska operates a number of meat plants
around the country The one that concerns us is a pork
processing and packing plant in Mason City Iowa
where Respondent employs more than 250 nonsuperviso
ry production and maintenance workers to staff the
plant s three daily workshifts
The Union overtly began a first plantwide organizing
campaign among Respondents Mason City employees in
May 1984 The campaign eventually resulted in a repre
sentation election held under Board auspices on Novem
ber 7 1985 2 which the Union lost The Union began a
new organizing drive in earnest in the latter months of
'In 1986 Respondent sold and shipped from that plant more than
$50 000 worth of products directly to customers outside Iowa
2 Case I-RC-1828
291 NLRB No 134
ARMOUR CON AGRA 963
1986 and received a majority of ballots cast in a second
Board election held on February 26 1987 3
Lowell (Chris) Lauritsen now 50 years old was hired
in December 1983 when Respondent first acquired the
Mason City plant he worked as a maintenance mechanic
until Respondent fired him on July 25 1986 Over the
course of his employment he worked under at least
three different maintenance supervisors (sometimes called
foreman on this record)4 who reported in turn to Plant
Engineer Edward Wiss (or sometimes to Wiss assistant
Charles Curran) As Respondent concedes Lauritsen
was widely known to company agents as the Union s
principal in plant spokesman 5
On February 10 1986 Wiss transferred Lauritsen from
the second shift to the third or graveyard shift The
prosecutions view is that this was done to isolate Launt
sen from the majority of his fellow workers and thus to
minimize his ability to proselytize on behalf of the Union
in a second organizing campaign Wiss denies this claim
tmg that he was moved by nothing more than a desire to
best serve the plant maintenance needs consistent with
the considerations that he had outlined in a memorandum
to his supervisors roughly 2 months earlier
On July 18 1986 Respondent suspended Lauritsen
then fired him on July 25 following an internal investi
gation ostensibly because during the early morning
hours of the July 12-13 graveyard shift Launtsen had
tried to break in to an unoccupied plant office used
during the first and second shifts by the plant nurse
Lauritsen who admits that he intended to jimmy the
door lock of the office with a credit card insists that his
only purpose was to get some Tylenol from a first aid kit
maintained in the office Launtsen also claims and his
claim is corroborated that the lock in question was noto
nously insecure and that other employees had also
slipped the door lock on occasion to enter for innocent
3In that case (18-RC-14052) Respondent filed objections to the con
duct of that election and a Board hearing officer recommended that the
objections be overruled I take notice that the Board recently overruled
Respondent s objections and certified the Union as the employees repre
sentative See Armour Food Co 288 NLRB 1 (1988)
4 Respondent admits that the maintenance supervisors in question are
supervisors within the meaning of Sec 2(11) of the Act
5 During the 1984-1985 organizing drive Lauritsen headed the Union s
in plant organizing committee he conducted many organizing meetings
at his home when Respondent mounted its own countercampaign Laur
itsen used the opportunity presented by company sponsored speak-out
meetings to argue the Union s case Respondents managers and supervi
sors uniformly acknowledge their awareness of Lauritsen s central role
for the Union Even before becoming publicly identified as the head of
the Union s in plant organizing committee Lauritsen had become known
to company officials as a union activist through a feature article in the
Des Moines Sunday Register published in February 1984 which was
widely discussed at the Mason City plant The Sunday Register article
headlined Six years after lockout Spencer union battles for jobs had
reported incidentally that Launtsen had been the president of one of the
Union s locals at a meat processing plant in nearby Spencer Iowa a
plant known in the area as Spencer Beef whose closing in 1977 had trig
gered much industrial strife as well as protracted litigation before the
Board See Spencer Foods 269 NLRB 183 ( 1984) enfd 768 F 2d 1463
(D C Cir 1985) The article had focused on two related themes first the
Board s delays in deciding the case (quoting various public officials in
eluding then Board Chairman Dotson about the reasons for the delays)
second the impact of those delays on the former Spencer Beef workers
affected by the case (citing prominently the financial and personal diffi
culties experienced by Lauritsen and his family while awaiting the out
come of the Board litigation)
purposes The agents of Respondent who figured in the
decision to suspend and fire Lauritsen generally deny
that they were aware of any practice by employees of
jimmying the door lock In any case they claim they
did not believe that Launtsen s purpose was as innocent
as he has always maintained rather they concluded that
his real purpose was to obtain employment records also
stored in that office and to use them for union organiz
ing The General Counsel argues that Respondent seized
on Lauritsen s alleged break in attempt as a pretext for
ridding itself of an unwanted union activist
Three employees (one of them being Lauritsen) testi
feed that three different maintenance supervisors (David
Crandall Steven Gaiser and Ted Balek) variously ex
pressed their belief that the real reason Respondent trans
ferred Lauritsen in February and suspended and fired
him in July was Lauritsen s union activism For reasons
detailed elsewhere below I substantially credit the em
ployees accounts of the supervisors remarks even
though they are disputed to some degree by each super
visor Moreover I find that such supervisory statements
independently violated Section 8(a)(1) of the Act without
regard to whether the supervisors perceptions of Re
spondent s treatment of Lauritsen were accurate
The 8(a)(3) counts-particularly those involving Laur
itsen s suspension and discharge-raise questions that
cannot fairly be answered simply by relying on the opin
ions expressed by the supervisors rather they require a
thorough understanding of an often confusing array of
surrounding facts and circumstances in order to assess
Respondents true motivations in each case I conclude
ultimately applying a Wright Line analysis 6 that the su
pervisors were right-that Launtsen s union activities
were in fact a substantial motivating factor in Respond
ent s transfer suspension and discharge of him and that
Respondent failed to demonstrate that it would have
taken the same actions against him had it not been for his
union activities
A Lauritsen s More Recent Union Activities
Company Knowledge
In the 2 months following the Union s November 1985
election loss Launtsen and some other employees had
openly solicited roughly 25 new authorization cards for
the Union apparently intending more to keep the union
ization issue alive at least symbolically than to use the
cards as support for a new petition for a second election
which under established law could not be conducted
until a year had passed since the first election Other
than that Launtsen s inplant union activities had been
minimal in the roughly 8 months between the Union s
first election loss and the point when he was fired On
the night of July 17 however only hours before he was
suspended for his attempted break in Lauritsen had
talked with a fellow employee about scheduling a meet
ing at his home in the following week to kick off the
second organizing campaign As they were concluding
6 Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir
1981) cent denied 455 U S 989 ( 1982) see also NLRB Y Transportation
Management Corp 462 U S 393 (1983) (approving Wright Line tests)
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this discussion a supervisor had descended nearby stairs
and greeted Lauritsen and the other worker
It is possible that the supervisor overheard Launtsen s
remarks about a union meeting before his presence in the
stairwell became evident to the two employees but it
would be unduly speculative to assume that he did Nei
ther is there any independent evidence that Respondents
management level officials had become aware at any
point before they suspended and then fired him that
Lauritsen was about to begin a new organizing drive in
earnest On the other hand Launtsen s solicitation of
new authorization cards in the 2 months following the
1985 election clearly signaled that the Union was gearing
up for a new organizing drive looking toward a new
election when the requisite year since the last one had
elapsed and also signaled that Lauritsen would continue
as the Union s inplant ramrod in such a new campaign
Indeed management witnesses acknowledged-and Re
spondent s counsel reinforces the point on brief-that
their general awareness of Lauritsen s conspicuous role
as a union advocate caused them to take special pains in
their handling of Lauritsen s suspension and discharge in
July including much consultation with corporate labor
relations officials in Omaha Accordingly I presume for
all purposes that company officials still thought of Laur
itsen from January to July 1986 as the Union s main in
plant advocate but that their actions against Lauritsen in
July were not informed by any specific knowledge of his
recent plans to conduct a new series of organizing meet
ings at his home
B Company Animus Outside the 10(b) Period
The parties devoted considerable litigation and briefing
energy to the issue of Respondents animus against Laur
itsen during periods somewhat remote from the events in
1986 which are the targets of the complaint Thus the
General Counsel and Charging Party argue that a pat
tern of animus-even arguably unlawful discrimination-
had become evident in Respondents treatment of Launt
sen as early as June 1984 7 One prosecution claim is that
Wiss had singled out Lauritsen for special disciplinary
scrutiny because of his union activities another is that
Wiss repeatedly attempted to downgrade the periodic
performance appraisals prepared by Lauritsen s foremen
As to the claim that Wiss singled out Lauritsen for dis
cipline the record shows in fact that Wiss caused a
warning notice to be issued to Lauritsen in July 1984
and simultaneously transferred him from the second shift
to the first shift This is what the warning notice pre
pared by Wiss but signed by Supervisor David Zimmer
man stated in pertinent part
Lauritsen has been spending too much time talking
with production workers and not keeping himself
busy with maintenance work This activity
will stop or further action will be taken me
Since no unfair labor practice charge was filed about those actions
within 6 months of their occurrence Sec 10(b) of the Act operated to
bar the General Counsel from attacking them in the complaint To the
extent these matters were litigated it was for their arguable back
ground relevance in accordance with established legal principles Jo-
seph s Landscaping Service 154 NLRB 1384 fn 1 (1965)
chanic placed on 1st shift to help work prefor
mance [sic] and troubleshooting skills improve thru
training and closer supervision
Supporting the inference that antiunion hostility in
formed Wiss actions concerning the warning slip is the
testimony of former supervisor David Crandall who al
though no longer in Respondents employ at the time of
the trial was called by Respondent to rebut certain other
testimony offered by Lauritsen and other employees
Crandall quotes Wiss as saying in the first half middle
of 84 whenever that Lauritsen was handing out
union cards and we want him busy and we want him in
his work location at all times and keep an eye on him
make sure he isn t congregating around talking to
groups and document anything out of the normal
then we could take disciplinary action Wiss
never specifically denied having made the remarks
quoted by Crandall
As to claims that Wiss sought to downgrade super
visors evaluations of Launtsen the prosecution cites
Lauritsen s testimony about statements made to him by
both Supervisors Crandall and Zimmerman at various
points between June 1984 and January 1986 This is what
Lauritsen recalled from the witness stand In June 1984
Zimmerman told him that Wiss had ordered Zimmerman
to downgrade an evaluation for Lauritsen that Zim
merman had already prepared because they had identi
fled me as an organizer for the Union and that if I had a
bad evaluation it would be easier to get rid of me later
on Zimmerman also told Lauritsen that Zimmerman
had eventually refused to sign an evaluation that Wiss
himself had scripted after being dissatisfied with Zim
merman s attempt to rewrite something to conform to
Wiss expectations Separately in January 1986 Crandall
told Lauritsen that the evaluation that Crandall had dust
prepared was not as good as you deserve but its as
good as its going to get by Ed Wiss Later Crandall
told Lauritsen that that evaluation didn t even get by
that Wiss had fired it back at Crandall with instruc
tions to get the numbers up (numbers referring to a de
merit system)
No one called Zimmerman to testify As Lauritsen ac
knowledged Zimmerman had not been employed by Re
spondent for quite a long time and Lauritsen had been
mostly supervised until his February 1986 shift transfer
not by Zimmerman but by Crandall whom Respondent
did choose to call as its witness even though Crandall
too had been terminated by Respondent before this case
was tried Crandall s testimony as a whole reveals that
he suspected that management had been out to get Laur
itsen since the 1984 union campaign Nevertheless ques
tioned by Respondent whether he had ever made state
ments to this effect to certain employees he consistently
replied that he did not recall having done so even
while being quick to volunteer that he could have
made such statements simultaneously insisting that if he
had made any such statements he was only offering his
personal thoughts He also made clear moreover that
neither Wiss nor anyone else in management had ever
specifically told him to doctor Lauritsen s evaluation be
cause of his union activities He also denied that anyone
ARMOUR CON AGRA 965
had ever specifically ordered him to get the numbers
up on Lauritsen s evaluations In fact Crandall s admit
ted belief that Respondent s managers were on the look
out from early on for Chris traced exclusively from
Wiss remarks in 1984 quoted earlier
I will not find it necessary to determine whether Re
spondent acted unlawfully towards Lauritsen outside the
10(b) period For one thing if it was necessary to decide
such questions it would be hard to do so for the record
is either vague or contradictory or equivocal on many
issues of fact surrounding those two matters 8 And even
if I were to treat the background discrimination issues
as having been fully litigated and were then to engage in
a full blown 8(a)(3) analysis and were then to find that
Respondent had acted unlawfully in either or both in
stances I could not properly find those other crimes or
wrongs to be dispositive in deciding the issues that were
noted for litigation by the complaint 9 In short the main
purpose of considering the background evidence is not to
determine whether Respondent broke the law in its earli
er treatment of Lauritsen but only to determine whether
Respondents agents harbored hostile motives and inten
tions towards Lauritsen because of his union activities in
that period
Wiss status and function in Respondent s management
made him someone whose out of court statements were
properly receivable as nonhearsay admissions of a
party under Rule 801(d)(2)(D) Federal Rules of Evi
dence Crandall s first hand testimonial account of Wiss
remarks in 1984 plainly is competent to prove a direct
admission by Wiss that he resented Lauritsen s union or
ganizing activities and hoped to curb them If I credited
Launtsen s account of Zimmerman s and Crandall s re
ports to him about Wiss downgrading activities I
might also treat those supervisory statements to Launt
8 The appraisals of Lauritsen which found their way into Respondent s
permanent personnel records are in general mildly favorable in only
few instances are they critical and then hardly in damning terms Cran
dall clearly believed that Wiss was improperly fiddling with Crandall s
appraisals of Launtsen but his testimony is too generalized to ascertain
even which specific appraisals Crandall was talking about much less to
understand how his own initial appraisals of Lauritsen may have been
significantly altered in the final product approved by Wiss Indeed the
record will not permit a judgment whether Lauritsen s appraisals would
have looked any different if he had not been a union activist As to the
1984 warning slip the circumstances are more suspicious but the record
contains no details about the specific conduct by Launtsen (if any) that
caused Respondent to issue that warning Thus it would be difficult for
me to find either that the warning slip was prompted by some abuse of
company time on Lauritsen s part (as alleged in the warning slip itself)
or (as might be inferred from Crandall s testimony) that it was prompted
by and reflected an unlawful overreaction to some protected activity on
Launtsen s part As I ultimately conclude however at least for the limit
ed purpose of finding animus the record s vagueness on these latter
points is most properly chargeable against Respondent given the prima
facie indications that the 1984 warning slip and shift reassignment
stemmed from Wiss resentment of Lauritsen s union activities
9 We must bear in mind that the background evidence was offered to
show animus a somewhat elastic notion that probably is best under
stood in the present context as the kind of evidence that may be received
as an exception to the general rule that bars proof of other crimes or
wrongs to prove that Respondent was guilty of similarly unlawful acts
herein that is the type of exceptional evidence that may be received
under Rule 404(b) Federal Rules of Evidence for the limited purpose of
showing that Respondent possessed motive opportunity intent prepara
tion plan knowledge regarding the actions against Lauritsen in 1986
that are targeted by the complaint
sen as admissions under rule 801 10 Launtsen s tests
mony arguably deserves less weight however not only
because of his personal stake in the outcome nor because
he is in part contradicted by Crandall but because even
if Lauritsen s testimony here were credited what those
supervisors told Launtsen was not shown to have been
linked to any direct statement by Wiss implying antiun
ion motives for altering Lauritsen s appraisals
With these considerations in mind I give the greatest
weight to the following factors in concluding that Re
spondent s agents were historically ill disposed towards
Launtsen because of his union activities first is Cran
dall s uncontradicted testimonial account of his 1984 con
versation with Wiss second is the 1984 warning slip
issued to Launtsen and Wiss simultaneous reassignment
of Lauritsen to the first shift third is Respondents fail
ure to adequately detail or explain the facts surrounding
those actions against Launtsen in 1984 Wiss 1984 re
marks to Crandall imply that Wiss had singled out Laur
itsen for special scrutiny because of his union activities
had issued instructions calculated to discourage Launt
sen s in plant contacts with other employees was more
than normally disposed to document any arguable fail
ings by Lauritsen and was moreover disposed to use
shift reassignments for punitive purposes As I show
next these inferences are reinforced by the evidence sur
rounding Respondents actions against Lauritsen in 1986
which the complaint directly attacks
11 ALLEGED UNFAIR LABOR PRACTICES
A Lauritsen s Transfer to Graveyard Shift
1 Relevant background company practices
With irrelevant exceptions plant production occurred
only on the first and second shifts and those shifts em
ployed the largest numbers of employees The graveyard
shift was basically a maintenance operation employing a
skeleton crew of eight mechanics who cleaned and per
formed minor repairs on idle production equipment
Lauritsen had never before worked on graveyard al
though as noted above he had been previously reas
signed from second to first shift (and then later back to
second shift where he was working when he was reas
signed to the graveyard shift) When Wiss transferred
Launtsen to the graveyard shift on February 10 1986
he simultaneously switched a less senior mechanic Paul
Scholl from graveyard to Launtsen s second shift slot
Graveyard was commonly regarded as the least desira
ble shift So far as this record shows until Lauritsen s
transfer graveyard was staffed by the least senior me
chanics 11 Similarly so far as this record shows no em
10 In this regard I find that when the supervisors told Lauritsen what
Wiss had said they were making statement [s] by [Respondents] agent
or servant concerning a matter within the scope of [their) agency or em
ployment within the meaning of Rule 801 (d)(2)(D)
" Lauritsen credibly testified consistent with this point he was in a
fair position to know given the length of his employment at the plant
Other employees also expressed in one way or another their perception
of a practice whereby graveyard shift assignments were reserved for
junior employees Moreover Respondent in the best position to know
Continued
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee had ever before been transferred from an existing
first or second shift assignment to the graveyard shift
except temporarily to cover the absence of a graveyard
employee due to illness or scheduled vacation And I
note also in this regard that Wiss seemed suspiciously un
willing to be pinned down about the Company s prac
tices respecting shift transfers even when questioned by
Respondents attorney on the subject Thus asked by
company counsel How often do you make shift
changes? Wiss replied We try and minimize the
number of shift changes but we make them as often as
required to cover the production needs Respond
ent s counsel then pressed further asking How many
shift changes have you made since [December 1983]?
Wiss answered I wouldn t even know without having
to go back through all the records [T]here are
times when people are moved to a shift for a couple
three weeks to cover for somebody who would be on
vacation I can t recall all the shift changes and try
and put together an accurate number The record never
became any clearer although it was obviously within
Respondents power to make it more clear had it wished
to do so
If there had been precedent for Lauritsen s reassign
ment to the graveyard shift I would have expected Re
spondent plainly to prove it rather than merely to rest
on Wiss misty and inconclusive generalizations With
the record in this posture I Tina that Lauritsen s transfer
to the graveyard shift was a unique occurrence in the
history of the Company s Mason City operation
2 Wiss asserted reasons for transferring Lauritsen
In reassigning Lauritsen to the graveyard shift Wiss
claimed to have been moved by considerations of effi
ciency that he had earlier spelled out in a manning
changes memorandum to Plant Manager Donald Clark
dated December 6 1985 That memo stated in pertinent
part as follows
To D G Clark
From E R Wiss
Subject Manning Changes
I am aware of mechanics who are not presently
being used to their full potential simply due to their
job assignment on the manning schedule Some
people are simply allowing their talents to remain
unused due to their job assignments while others
demonstrate a need for additional growth and train
ing
To best serve the plant maintenance needs I
must advise you that I plan to change the manning
schedule to best fit the individuals talent to the job
assignment This is an ongoing task
The area of prime concern is third and second
shift Third shift is the one with the most general
work assignments available Plans are to move two
mechanics from third shift to a better suited job as
and to offer proof on these salient points failed to demonstrate that
graveyard had ever before been staffed by mechanics who were senior to
those working on first or second shifts
signment and assign two other mechanics to third
shift allowing them better training and growth op
portunity Listed below are candidates being consid
ered for these changes with final selection being re
served until additional performance of new employ
ees can be observed
Persons best suited for third shift jobs seem to be
Tom Dempsy
Chris Lauritsen
Bob Echelbarger
Don Barker
Persons best suited for second shift jobs seem to
be
Scott Scholl
Paul Cavin
Both Paul and Scott have two year college de
grees for skill not presently being taken advantage
of Paul s experience with scales and electronic
equipment repairs imply a skill that will not be fully
utilized on third shift
Some additional job assignment changes internal
to second shift are being considered
/s/ E R Wiss
Plant Engineer Manager
Elaborating on his memorandum in testimony Wiss
stated (in the kinds of blandly circular terms that were
characteristic of his testimony throughout these proceed
ings) that Mr Lauritsen s skills were more of a kind of
jack of all trades skills and would be best suited for that
type of an operation and production coverage needs
he was experienced in many and master in none
he definitely lacked electrical trouble shooting
skills By contrast said Wiss third shift mechanics
Scholl and Cavin both had some training in electrical
and electronics and our packaging equipment has
become sophisticated enough that I thought that would
be very helpful in that area Recalling that in 1984 he
had urged Lauritsen to take an electronics course at
NIACC (a local community college) Wiss stated that he
had no documentation that Lauritsen had ever fol
lowed through
In evaluating Wiss explanations I note the following
additional facts and circumstances
First Wiss never sought the opinions of Lauritsen s
nor Scholl s supervisors before making the shift switch
he merely advised them of his imminent intentions As
findings elsewhere reveal Crandall Lauritsen s then su
pervisor found this both unusual and suspicious given
Wiss lack of day to day familiarity with the workers
whom he intended to switch
Second Wiss was either untruthful or remarkably ig
norant of the contents of company records that he was
admittedly involved in preparing when he claimed that
he had no documentation that Lauritsen had ever fol
lowed through on advice to take an NIACC course
Lauritsen did in fact take such a course more impor
tantly his August 1984 appraisal contains a specific nota
tion that Lauritsen had inrolled [sic] in elect coaurse
[sic] at NIACC starting Sept 6 1984 and his Decent
ARMOUR CON AGRA 967
ber 1984 appraisal in a space in which the appraiser is
instructed to comment How well have past goals (ob
jectives) been accomplished expressly notes that Laur
itsen had taken a course in adult education to help him
understand electricity
Third while Lauritsen s two 1984 appraisals contain
suggestions in a portion captioned areas for improve
ment that he receive further education or training
in electrical work the counterpart portion in his Decem
ber 1985 appraisal (i e the one written at roughly the
same time Wiss wrote the memo justifying his desire to
move Lauritsen and others to the third shift ) makes no
mention of any further need on Lauritsen s part to be
trained or schooled in electrical systems Accordingly
Wiss claim that in February 1986 Lauritsen still dell
nitely lacked electrical trouble shooting skills is implic
itly inconsistent with a nearly contemporary evaluation
of him which for the first time fails to record any rec
ommendation that Lauritsen improve his understanding
of electrical systems
Fourth I recall that Wiss had ostensibly transferred
Lauritsen in 1984 from the second shift to the first shift
to help work preformance [sic] and troubleshooting skills
improve thru closer training and supervision (emphasis
added) Because Wiss had subsequently allowed Laurit
sen to be reassigned back to the second shift it is a fair
inference that Wiss then believed that Lauritsen s trou
bleshootmg skills had in fact ceased to be an issue
making it even harder to credit Wiss claim at trial that
Lauritsen still definitely lacked troubleshooting skills
Fifth Respondent never sought to provide any factual
detail for Wiss conclusionary testimonial claim that
third shift mechanics Scholl and Cavin possessed some
background in electrical work (or as Wiss put it with
equal vagueness in his written memorandum-that Scholl
and Cavin had two year college degrees for skill not
presently being taken advantage of) Accordingly it is
hard to test Wiss statements in this regard and equally
hard to understand why Scholl and Cavin were better
qualified for second or first shift work than Lauritsen
the only one of the three who was shown to have com
pleted a relevant college course in electrical systems
Sixth although Wiss claimed in his memorandum that
both Scholl and Cavin were best suited for second shift
jobs (and that three other mechanics besides Lauritsen
were best suited for third shift jobs ) and that his
plans [were] to move two mechanics from third shift
(emphasis added) the only action that Wiss actually took
in February was to switch Scholl and Lauritsen He did
not simultaneously transfer any other mechanics whom
he had identified as being best suited for third shift In
stead Cavin was not reassigned from the graveyard shift
until substantially later-and then only to take the place
of a second shift mechanic who had terminated (not as
in Scholl s switching with Lauritsen to displace a me
chanic already working on an earlier shift) Moreover
when Cavin was eventually moved from graveyard to
fill what Wiss called a vacancy on the second shift he
was not replaced on third shift by one of the other me
chanics listed on Wiss memorandum as best suited for
third shift jobs Rather a mechanic was newly hired to
fill the graveyard shift vacancy created by Cavin s de
parture 12
3 What the foremen said to employees
Lauritsen believably testified that he first received
news of his imminent transfer from his then supervisor
Crandall who stated to him They said they need your
skills on the third shift but we know that s not the
reason we know it s because of your union activity
Called by Respondent Crandall could not recall any
such conversation with Lauritsen but also added I in
sure maybe I did but I don t recall what it was about
His answers were similar when asked if he had made any
such remarks to other employees specifically Douglas
Wolf 13 Thus he replied I don t recall it but I in not
denying that I did say it I could have I don t
swear that I did Given Lauritsen s seeming candor
Crandall s equivocations and Crandall s admitted general
belief that Respondent had been on the lookout for
Chris from early on due to his union activities I have
no hesitancy in finding consistent with Lauritsen s testi
monv that Crandall gave voice to his belief that Laurit
sen s union activities had caused Wiss to transfer him
Employee James Sheeley testified that shortly after
Lauritsen s transfer he asked his supervisor Steve
Gaiser what Gaiser thought about the transfer prompt
mg Gaiser to reply Due to his union activities he
brought it on himself
Employee Douglas Wolf was also well known to com
pany management as a supporter of the Union (he
became the head of the inplant organizing committee
after Lauritsen s discharge) Wolf recounted several con
versations with Supervisor Gaiser that bear on Laurit
sen s transfer to the graveyard shift 14 I regard as the
most significant aspect of his testimony for present pur
poses Wolf's description of a relatively recent event an
event that Wolf divulged only after being pressed on
cross examination by Respondents counsel why Wolf
12I will not detail bliss attempts to rationalize these related curiosi
ties in general I found them improvised in tone lacking in convincing
detail uncorroborated by available documentation and in the end still
largely inconsistent with his own comments in his original memorandum
of justification The central point to be made here-never rebutted by
Wiss-was that Wiss eventual assignment of Cavin to fill a vacancy on
the second shift and his hiring of a new employee for the graveyard shift
to fill the vacancy created by Cavin s reassignment seems indistinguish
able from what everyone otherwise said was traditional practice- to re
serve graveyard for the least senior employees Thus the eventual reas
signment of Cavin can hardly be seen as an exercise in implementation of
bliss overall manning changes scheme as set forth in his December
memorandum
3 In fact employee Wolf never testified to having had any such con
versation with Crandall only with Supervisor Gainer as reported else
where below
14 Wolfs accounts appeared to involve some degree of confusion
Thus he claimed that he had virtually the same conversation with Gainer
on two different occasions ( Now that Chris is out of the way I don t
think you have very much to worry about ) According to Wolf Gaiser
first said this in February after Lauritsen s shift transfer then again 6
months later after Lauritsen s suspension or discharge If a specific find
ing were necessary I would find it more likely that Gaiser made this
statement to Wolf only once in July concerning Lauritsen s suspension
and discharge Because it would be merely cumulative however and
would not affect my ultimate recommendations respecting the remedy I
deal no further with these features of Wolf's testimony
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
believed that Wiss was disposed to use transfers to the
third shift for punitive purposes In response Wolf de
scribed a conversation with Gaiser that had occurred
within the 3 months preceding this trial during which
Gaiser had reported to Wolf as follows Gaiser had been
present in Wiss office when Wolf's foreman Youngblut
told Wiss that he wished to transfer Wolf because Wolf
was talking to employees Wiss replied according to
Gaiser s report to Wolf We 11 put him on third shift so
he can t talk to anybody because he might influence
them on the Union Gaiser then suggested to Wiss and
Youngblut that Wiss proposal would probably cause
trouble because of how people were feeling because of
the Union (Elsewhere Sheeley s testimony shows that
some mechanics were upset over Lauritsen s having ear
her been transferred to graveyard and had raised the
issue during a speak up meeting with their foreman
Youngblut )15 As a consequence so Gaiser confided to
Wolf a decision was made instead to transfer Wolf to
the dry sausage department where only five people
work on the second shift
Called by Respondent as a witness Gaiser denied ever
having told employees that Lauritsen had been trans
ferred (or suspended or fired) because of his union ac
tivities He vaguely acknowledged that he had been
present (as an innocent bystander he insisted) when
some of the employees had expressed such opinions but
he stated that he dust ignored such remarks I was not
impressed by Gaiser s demeanor his attempts to distance
himself as a mere bystander seemed especially lacking
in candor and I would credit the testimony of Sheeley
that Gaiser himself stated that Lauritsen s union activities
had caused Wiss to move him to the graveyard shift
Moreover Respondent never asked Gaiser (nor Wiss) to
comment on Wolf's testimony about what Gaiser had di
vulged concerning the more recent meeting in Wiss
office where Wiss had proposed to move Wolf to the
third shift so that he could not influence employees
concerning the Union
4 Concluding findings
I have little difficulty in finding a prima facie case for
the proposition that Lauritsen s union activities mflu
enced Wiss decision to transfer Lauritsen to the grave
yard shift Supervisors Crandall and Gaiser told employ
15 Sheeley s testimony about Youngblut s remarks in the speakup meet
ing form the basis for an independent 8(a)(1) count in the complaint-that
Youngblut threatened an employee with unspecified reprisals if the em
ployee supported or engaged in activities on behalf of the Union
Thus Sheeley testified that during a speakup meeting held shortly after
Lauritsen s transfer a mechanic voiced concern to Youngblut about the
Company s policies regarding the role of seniority in assignments to the
third shift Youngblut made a note to himself to follow up on this in
quiry At the conclusion of the meeting according to Sheeley Youngblut
dismissed the crew jokingly adding words to the effect If you don t
watch what you re doing or mess up you 11 be on third too Youngblut
denied ever having made such a remark I do not find it necessary to re
solve the credibility dispute because even if I were to credit Sheeley on
the point I think it would involve a strained interpretation of these
events to presume that Youngblut s joking remark would be seriously
received by employees as a threat of reprisals for engaging in
protected activity At most under Sheeley s version Youngblut s state
ment would merely tend to confirm what was otherwise not disputed-
that third shift was an undesirable assignment
ees that this was why Wiss had acted and their state
ments were sufficient in themselves to make out a prima
facie case even if the opinions they expressed were not
specifically linked to any direct statements by Wiss 16
Moreover one need not rely exclusively on supervisors
expressions of opinions to employees to find a prima
facie case of antiunion motive Crandall s firsthand ac
count of his 1984 conversation with Wiss shows that
Wiss was hostile to and disposed to restrict Lauritsen s
prounion conversations with his fellow employees An
even more direct indicator that Wiss was inclined to
treat the graveyard shift as an isolation ward for union
activists is found in Gaiser s quite recent out of court ad
mission to Wolf that Wiss had proposed to move Wolf to
the graveyard shift to prevent him from talking to any
body or from influenc [ing] them on the Union
Under Wright Line supra once a prima facie case was
made out that union activities influenced Respondent s
decision to move Lauritsen to the graveyard shift it
became Respondents burden to demonstrate that it
would have taken the same action even if Lauritsen had
not engaged in such protected activities For reasons that
I think are largely evident from my earlier findings on
this subject I conclude that Respondent has failed to
carry its burden and that the evidence as a whole favors
the General Counsel As I have found the decision to
move Lauritsen was unprecedented and this fact in
itself crippled Respondents attempts to demonstrate that
Lauritsen s shift change would have happened without
regard to his union activities Beyond that Wiss pro
fessed reasons for taking that action were suspiciously
conclusionary in tone and Respondents case otherwise
lacked the kinds of corroborative detail I would have ex
pected Respondent to produce had there been any sub
stance to Wiss claims about the relative skills and abili
ties of Lauritsen and the other mechanics named in Wiss
manning changes memorandum Further many fea
Lures in Wiss explanations were either self contradictory
or were contradicted by other circumstances the single
most telling being that once Wiss had managed to move
Lauritsen to the graveyard shift he seems to have lost
all interest in any further implementation of his man
ning changes program
In short I am left with the impression that even
though Wiss mentioned several names in his December
memorandum as likely candidates for transfer to the
third shift this was a smokescreen Lauritsen appears to
have been Wiss only real target for transfer and I am
I6 E g NLRB v Dorothy Shamrock Coal Co 833 F 2d 1263 (7th Cir
1987) There Company Supervisors Scruggs and Henry had made state
ments to employees on several occasions implying Company President
Frank Carr s strong antiunion stance statements on which the Board
had relied in finding that the company s subsequent discharge of its em
ployee drivers was unlawfully motivated On the Board s application to
the Seventh Circuit for enforcement the company defended in part on
the ground that the General Counsel had failed to establish a prima
facie case because there is no direct evidence that Frank Carr har
bored antiunion animus and no evidence linking Carr with the statements
of Scruggs and Henry Id In rejecting this defense the circuit court
found it reasonable for the Board to have relied on Scrugg s and Henry s
statements to employees for purposes of finding animus The court fur
ther observed in this regard The Board is free to rely on circum
stantial evidence as well as direct evidence in assessing motive Ibid
ARMOUR CON AGRA 969
therefore inclined to treat Wiss December memorandum
as the kind of documentation that is not so much in
tended to record and highlight an underlying historical
reality as to conceal one Indeed in the circumstances
Wiss overall tendency to conceal and obscure is itself a
fact of probative worth a fact more properly allocated
to the side of the ledger reserved for evidence of Re
spondent s unlawful motivation than to the side reserved
for exculpatory proof''
I therefore conclude that in assigning Lauritsen to the
graveyard shift Respondent violated Section 8(a)(3) and
(1) substantially as alleged in the complaint I further
conclude consistent with the complaint that when Su
pervisors Crandall and Gaiser told employees that the
real reason for the transfer was Lauritsen s union activi
ties those remarks had a necessary tendency to restrain
and coerce employees in the exercise of protected rights
and thereby independently violated Section 8(a)(1) of the
Act 18
B Lauritsen s Suspension and Discharge
1 The break in attempt on July 13
The incident that precipitated Lauritsen s suspension
and eventual discharge occurred in the early morning
hours of Sunday July 13 a time when Lauritsen was un
supervised because third shift Maintenance Foreman
Leroy Lyrner did not work on weekends Lauritsen
states he was suffering from a recurring headache and
had gone to the office where the plant nurse maintains a
first aid station intending to get some Tylenol (as he ex
plained he preferred Tylenol to aspirin because the
former was easier on his stomach) He admittedly had
planned to use a credit card from his wallet to slip the
lock to the office a common practice among employees
he says when the door was locked and no supervisor
was on hand with a key Poised outside the door he ad
mittedly held some tools in one hand including a screw
driver tools that he normally carried in the hip pocket
of his overalls (He explains that he had transferred these
tools from his overalls pocket to one hand in order to
reach the interior pocket in his trousers containing his
wallet )
It was at this moment while he had tools in hand and
was fishing for his wallet that two employees Bonjour
and Sturges walked into view He paused and asked
them if they had a key to the office they said they did
not then walked into the nearby cafeteria Lauritsen
dropped his efforts at this point and went himself into
17 Shattuck Denn Mining Corp Y NLRB 362 F 2d 466 470 (9th Cir
1966)
1e E g P Q Beef Processors 231 NLRB 1076 (1977) a case inexplica
bly cited by Respondent for the proposition that no 8(a)(l ) violation of
the Act occurred because Crandall and Gaiser were speculating when
they made the remarks in question It is true that in the cited case the
Board agreed with the administrative law judge that Supervisor Garcia s
threats of retaliatory treatment were not enough in the circumstances to
establish a separate alleged violation under Sec 8(a)(3) But on the 8(a)(1)
violations presently at issue the case holds exactly to the contrary of Re
spondent s interpretation Thus the judge reasoned that [s]uch threats
are attributable to Respondent even though the supervisor who
made them was simply expressing his own beliefs and was not speaking
for [management)
the cafeteria explaining that he had by then noticed a
fellow employee James Schreiver seated in the cafete
ria who Lauritsen knew sometimes had a key to an
other supply cabinet in the dry sausage production
office where aspirin and Tylenol and like products were
sometimes to be found Lauritsen states that Schreiver
did have a key to the dry sausage cabinet that the two
of them then went together to the cabinet which
Schreiver opened allowing Lauritsen to remove a bottle
of Tylenol
Admittedly parts of Lauritsen s explanations are not
susceptible of direct corroboration nor contradiction but
Sturges corroborates that Lauritsen himself went into the
cafeteria after learning that neither Sturges nor Bonjour
had a key to the office containing the nurses first aid sta
tion And Schreiver substantially corroborates Lauritsen
on other features agreeing that Lauritsen approached
him seeking Tylenol and that the two then went to
the dry sausage cabinet which Schreiver unlocked
whereupon Lauritsen retrieved some type of medication
either aspirin or Tylenol (he did not watch to see
which) '9
2 Respondent s initial reaction to the incident
Either immediately after their July 13 encounter with
Lauritsen or sometime on July 14 Bonjour and Sturges
casually discussed the episode in the presence of another
employee Merlin Schaefer describing how they had
seen a large heavy set man (they did not know Launt
sen s name at the time) trying to pry open the lock with
a screwdriver Schaefer then left the discussion and has
tened to inform Plant Manager Donald Clark about what
he had learned Clark recalls that Schaefer named Laur
itsen as the individual whom Bonjour and Sturges had
described 20
19 Nothing in the record contradicts Lauritsen s testimony that Tylenol
was not available to him on July 13 except in locked areas As we shall
soon see however Respondent makes much of discrepancies in Laurit
sen s various statements whether he was seeking Tylenol or aspirin
With this in mind during cross -examination of Schreiver Respondents
counsel vaguely made a matter of record that in a pretrial affidavit
Schreiver had variously used either the term Tylenol or aspirin in
recounting his contacts with Lauritsen on July 13 But the record does
not disclose with any clarity whether Schreiver ever used the term aspi
rin in his pretrial affidavit when recounting the initial request from
Lauritsen Moreover Schreiver was unswerving in his recollection at
trial that Lauritsen had initially come to him with a request for Tylen
of Explaining his discrepant usages in his affidavit he stated aspirin
Tylenol that all means the same to me you know
20 Schaefer did not testify Clark admittedly knew Schaefer as an em
ployee with a history of complaining to management about other employ
ees activities Indeed in seeking to overturn the results of the second
election in which the Union received a majority of the votes Respond
ent relied in part on Schaefer s complaints that he had been victimized by
harassment from prounion workers and argued from this that the Union
was responsible for creating an atmosphere of fear that tainted the re
suits of that second election In recommending dismissal of these objec
tions the Board s hearing officer found that throughout his employ
ment Schaefer had complained to a supervisor or managerial staff
member about the conduct of fellow employees that he deemed im
proper and that it was Schaefer s unpopular role as the company po
]iceman that accounted for many of the incidents of harassment involv
ing Schaefer on which Respondent had relied to overturn the election re
suits Accordingly the hearing officer reasoned that Respondent had not
established an evidentiary nexus between those incidents and the
Continued
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Schaefer s news caused Clark in turn to notify Wiss
and Human Resources Manager Daryl Johnson a man
who had only recently taken over that top personnel
position from Dennis Miller Clark also directed Schaefer
to return to the plant floor to summon Bonjour and
Sturges which he did 21 Clark and Johnson then inter
viewed the two eyewitnesses and later prepared identical
written statements for Bonjour and Sturges to sign
which they did in a followup summons to management
offices on July 17 relevantly claiming they had seen
Chris Lauritsen using a screwdriver in attempting to
pry open the lock
It was not until July 18 that Respondent confronted
Lauritsen about the incident as I describe next 22 Laurit
sen s supervisor Leroy Lyrner told Lauritsen that they
were both wanted in Wiss office saying he hadn t the
slightest idea why On arrival in Wiss office they were
met by Wiss and Johnson Wiss claimed to have a
report that [Lauritsen was] trying to break into the
nurses office with a screwdriver Lauritsen replied
No wrong explaining I wasn t trying to break in
there with a screwdriver Wiss said I consider this an
act of theft and demanded an explanation Lauritsen re
plied I had a headache and I wanted to get some
Tylenol 23[T]he nurses office was closed and I
union activity occurring at the Employers facility I here take adminis
trative notice of the Hearing Officers Report and Recommendations on
Objections to Conduct Affecting the Results of the Election in Case 18-
RC-14052 at 9-10 which were substantially adopted by the Board in its
recent decision and certification of the Union
S i According to Sturges this was only five minutes after they had
told Schaefer of the incident and he had then departed Schaefer s return
to Bonjour and Sturges with a summons to go to Clark s office caused
Sturges to react by saying Oh no since he didn t really want to men
tion anything about it
22 For findings about the events on July 18 I rely principally on Laur
itsen s account which was seemingly candid and the most comprehensive
of any of the versions offered it is only marginally contradicted by other
participants and then only on a few points which I discuss separately in
footnotes below
22 Wiss and Johnson recall that Lauritsen referred to aspirin -not
Tylenol -at this point Respondent makes much of this discrepancy
noting that its agents learned in a subsequent investigation of the epi
sode that aspirin was available on the plant floor and arguing from
this that Lauritsen has obviously changed details of his story to avoid he
implications of Respondents investigatory discovery about the availabil
ity of aspirin Respondent also points in this connection to what Laurit
sen said in an October 8 1986 unemployment compensation hearing
There referring to his July 18 meeting in Wiss office Lauritsen s repre
sentative asked him did they ask you what you were trying to steal?
Lauritsen replied I told them I was trying to get-I use the generic
term aspirin for [sic] and it kills headache pain I was trying to get aspi
nn Confronted with this apparent discrepancy in the present trial
Lauritsen admittedly became not exactly certain on the point at issue
but persisted in saying I think I told him Tylenol The issue is not free
from doubt the surrounding evidence points in different directions (as
noted above Schreiver recalls that Lauritsen asked for Tylenol on July
13 even though Lauritsen himself proved not to be exactly certain
when pressed at trial about whether he had referred specifically to Ty
lenol during his July 18 confrontation with management) An assessment
of probabilities yields no obvious resolution (because none of the July 18
participants had any apparent reason to focus on brand name distinctions
at the time it seems equally possible either (a) that Lauritsen said Tylen
of but the managers misheard or misrecalled him as saying aspirin or
(b) that he merely said aspirin -a possibility that might be explained by
assuming that Lauritsen had not consciously intended to draw a distinc
tion between aspirin and Tylenol ) For decisional purposes however I
will resolve doubts by assuming that Lauritsen said aspirin on July 18
an assumption that I deem to be substantially less significant than Re
was going to use my credit card to get in 24 And then I
told him that using a credit card was a common
practice and everybody knew it 25 Wiss repeated that
he still regarded Lauritsen s actions as an act of theft
Lauritsen asked what he was supposed to do if we need
first aid supplies in the middle of the night Wiss replied
that he could get a hold of the guard Lauritsen re
plied Nobody ever told me that Wiss replied Well
maybe we haven t done a good job in that area it s
still not a good practice for you to be breaking into the
nurse s office At some point Wiss also asserted that he
had doubts about Lauritsen s veracity 26 Eventually
Lauritsen asserted that an incident this trivial would
never get this kind of attention if it wasn t for the union
organizing Wiss denied this saying that Lauritsen was
entitled to [his] opinion but that it would not be ethi
cal for Wiss to hold it against you because [you re]
active in the union Responding to this reference to
ethical considerations Lauritsen stated that Wiss was
the most ruthless son of a bitch Lauritsen had ever
seen in thirty years of working This caused Johnson
to interject to calm things down
Wiss concluded the meeting by repeating that he saw
Lauritsen s behavior on July 13 as an act of theft an
nounced that Lauritsen would be suspend[ed]
pending further investigation and directed that Laurit
sen turn in his ID card and toolbox keys and leave the
plant under escort As Foreman Lyrner escorted Laurit
sen from the plant Lauritsen asked Lyrner to do what
you can for me Lyrner replied I sure will I will do
anything I can This is the biggest bunch of bull shit I ve
ever heard 27
spondent believes it to be as I explain more fully in my concluding dis
cussion
24 I will not find it necessary to determine whether Lauritsen had actu
ally made some preliminary effort to use a screwdriver to spring the
doorlock or on the other hand whether Bonjour and Sturges had merely
misapprehended that this was what Lauritsen was trying to do when they
saw him poised at the door screwdriver in hand Although Respondent
emphasizes the discrepancy between the Lauritsen and the Bonjour/
Sturges versions on the matter of the screwdriver it plainly has no real
significance for Respondent has never otherwise implied that Lauritsen s
offense would have been excused or mitigated if the Company had be
lieved that he had intended to slip the lock with a credit card rather than
with a screwdriver Indeed Wiss conceded that he was inclined to be
Iteve Lauritsen s credit card story and to treat Bonjour/Sturges
screwdriver perceptions as simply the result of a good faith misappre
hension
"Johnson could not recall that [Lauritsen] made that statement
Wiss did not directly admit or deny that Lauritsen had made this claim
but he testified that in his own followup investigation he queried cer
tarn supervisors including Lyrner whether it was common practice for
somebody to break into the employment office to get aspirin Although
I do not ultimately believe that Wiss made any such followup inquiry I
think his testimony necessarily supports Lauritsen s claim that on July
18 Lauritsen raised the common practice issue since Wiss does not
admit to having independently heard any claim about such a common
practice
26 Wiss was then referring to a much earlier otherwise unlitigated in
cident in which Lauritsen had received a serious injury on the job but
had refused to identify a possibly negligent fellow employee who may
have occasioned the injury
27 Respondent did not call Lyrner to testify although he was still in
Respondents employ when this case was tried
ARMOUR CON AGRA 971
3 Other relevant details the nurses office
employee entry practices company knowledge
Although it involves a departure from the ch-onology
I find it useful to defer my narration of subsequent
events until I have set forth other relevant details for an
adequate appreciation of all of these central events-es
pecially those associated with Respondents investiga
tion -requires a clearer picture of the office Lauritsen
admittedly had tried to enter the entry practices associ
ated with it and the extent to which Respondent s agents
were on notice of some of these facts even before Launt
sen made his fateful visit to that office on July 13
To start with there is some controversy over the
proper label for the office in question employees call it
the nurses office while Respondent prefers to call it
the Employment Office In fact neither label is wholly
descriptive a fact that is implicit in the sign posted on an
adjacent outside wall which reads Employment Office
First Aid Avoiding the controversy I will simply refer
to it below as the office
The office in fact serves two functions it is used
during the first shift and part of the second shift by two
persons Lee Hudson the plant nurse 28 and Joyce
Kelley who holds the title Employment Manager 29
The office contains at least six file cabinets three of
which are routinely locked according to nurse Hudson
these contain personnel files worker injury and per
sonal medical history records Another three cabinets
are normally unlocked according to nurse Hudson they
contain blank insurance forms insurance records
and miscellaneous items [such as] extra gloves for the
plant Also maintained in an unlocked cabinet is a
card file with names addresses telephone and social
security numbers of all employees In addition on Kel
ley s desk there can usually be found a call in sheet
that is a master list of casual employees with their home
telephone numbers which is used by both Kelley and
the plant nurse who share responsibility for telephoning
those casual workers to replace a regular worker who
calls in sick Finally the office houses a first aid kit con
taming nonprescription medications such as aspirin Ty
lenol and Advil as well as other bandages and supplies
Periodically says nurse Hudson extra supplies of Tylen
of aspirin and bandages would be sent to the supervi
sors offices on the plant floor level at other times em
ployees or supervisors would come to the nurses office
to pick up extra supplies of those items
Until quite recently the door to the office has been
only poorly secured by a simple privacy type lock
mechanism not by a deadbolt lock As many besides
Lauritsen were aware the lock itself was worn and
could be sprung simply by inserting a credit card (or
even a folded newspaper) into the space between the
29 In fact there are two plant nurses who work different schedules
but Hudson was the only nurse who testified and who figured in the case
29 Kelley did not testify Her title may be misleading because her
actual duties and functions as incompletely described by nurse Hudson
strike me as more clerical than managerial in nature In any case Kelley s
duties as Employment Manager should not be confused with the over
all personnel responsibilities for the plant that are vested in Daryl
Johnson the Manager of Human Resources who occupies a separate
office in a different location within the plant
latch and the striker plate on the doorjamb Lauritsen
testified conclusionarily that this was widely known and
that he had seen many other persons spring the lock to
gain entry for various routine purposes He was corrobo
rated by mechanic Bob Echelbarger who testified It
was pretty common knowledge that you could get into it
very easily (as Echelbarger himself admittedly had
done) And James Sheeley recalled similarly that he had
seen as many as four other instances (twice involving
Echelbarger using a folded newspaper) where workers
had slipped the lock with some device Indeed after
being himself assigned to fix the lock as described
below Sheeley admittedly let himself in with a credit
card when he went to the office and found it locked
with a note from Hudson on the door that indicated she
had stepped out to go to another office
The insecurity of the doorlock had come to the atten
tion of nurse Hudson and to several members of Re
spondent s supervisory or managerial team well before
Lauritsen s discharge as I detail next The chronology
starts with Hudson who says she first learned of a prob
lem with the doorlock sometime in early May when
Kelley her office mate reported that she had inadvert
ently locked her keys inside the office and had then been
shown by an employee named Danny Shackleton that
the latch could be sprung by inserting a laminated plastic
sheet into the opening This disturbed Hudson she says
because both she and Kelley sometimes left their purses
unattended in the office when they absented themselves
for brief periods and she had until then assumed that the
purses would be safe if the door were closed and locked
Accordingly apparently concerned more for the security
of her purse during times when she was at work than for
the security of anything else maintained in the office
Hudson reported the incident to her superiors (One of
those superiors was Dennis Miller the predecessor to
Human Resources Manager Daryl Johnson the other
was the plant controller Jerry Vesser) In thus reporting
Hudson mentioned that Shackleton had known that the
doorlock could be jimmied Hudson s superiors author
ized her to get it fixed and somehow caused a work
order to be issued to the maintenance department They
did not apparently see fit to conduct any inquiry into
Hudson s revelation that an employee was aware that the
lock could be slipped a fact that implied some degree of
prior occurrences in the plant of employees having by
passed the lock
Having received this authorization and being appar
ently aware that Shackleton was not the only employee
who knew that the lock could be sprung Hudson sum
moned mechanic Echelbarger to show her how it could
be done so when I talked to whoever was going to fix it
I would know what was going on He showed
me that you could open it with his I D card
The chronology is picked up next by mechanic Shee
ley who described how he received a written work
order together with verbal instructions to look into
the matter from his foreman Youngblut who also com
mented that people were going in and out of the
office Sheeley then inspected the lock removed it and
made a temporary repair then reinstalled it after deter
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mining that a fully satisfactory repair could not be made
without some new parts which he asked Supervisor
Youngblut to order explaining the temporary repairs he
had made to date 30
Youngblut while not recalling the timing added to
the list of management agents who were aware of the
problems with the office lock when he stated that he had
left a copy of the work order in question with Wiss as
sistant Charles Curran And Wiss himself admitted at
one point that he routinely receives copies of work
orders although he otherwise claims he was unaware at
any time before Lauritsen s suspension or discharge that
there had been problems with the lock on the office
door
Sometime between early May and the first week of
June 86 according to mechanic Echelbarger s recollec
tion nurse Hudson told Echelbarger that her lock had
been fixed Echelbarger inspected it and was skeptical
then demonstrated to Hudson that the lock could still be
sprung with a folded newspaper Sheeley recalls being
teased by Echelbarger over the inadequacy of his initial
repair And apparently during the same period Douglas
Wolf reports that Hudson told him that her doorlock
could still easily be sprung with a newspaper
There is little evidence before the Lauritsen affair
that might indicate that Respondent was concerned
about the security of records stored in the office other
than the evidence showing that the most sensitive
records stored within were maintained in file cabinets
with their own locks Indeed crediting mechanic Wolf
nurse Hudson commented to him after Lauritsen s dis
charge that she could not understand what Lauritsen
might have wanted to get from within the office (other
than what he admitted to wanting) because the files con
taming arguably confidential information were routinely
under lock 31 Consistent with this view Lauritsen tests
fled that employees were often allowed to enter the
office unescorted especially on the graveyard shift
when it was never occupied using keys furnished by
their supervisors Thus You usually just go to your
foreman and I d say to him I need an aspirin or
a bandaid or whatever and he d just give me
so Sheeley s account suggests that all this happened shortly before the
end of the second week of July but Sheeley s recollection in this regard
is seemingly out of phase with nurse Hudson s chronology (implying that
Sheeley s temporary repairs had been completed much earlier) and with
Echelbarger s testimony detailed below which implies that Sheeley s
preliminary repair work must have been completed by early June at the
latest In any case Sheeley s recollection of the timing is still consistent
with my finding that certain agents of management named thus far were
aware of the problem with the lock before Lauritsen tried to enter the
office on July 13 I note also that Respondent never sought to contradict
such a finding even though it had unique access to work order records
and to the recollections of its agents
31 The exception of course was the unlocked cabinet that held the
card file containing current employees names addresses telephone
and social security numbers On this point however there is no evidence
Lauritsen knew those card files were in that cabinet (he says he assumed
all the cabinets were locked) and little to ground a suspicion that he
might have wished to steal the information contained on each individ
ual card This would have been not only a laborious process but prob
ably a needlessly duplicative one since I credit Lauritsen s uncontradict
ed testimony that he already was in possession of an Excelsior' list from
the first election and turnover in the plant had been minimal in the inter
vening period
the keys He says he had done this five six times
Similarly employee Schriever testified that as a matter
of general practice you could tell the foreman you
wanted some aspirin or something they would hand you
the key and you would go and bring the key back
Schreiver also recalled that on the third shift he had
once gone unescorted to the office to get aspirin had
found the door unlocked and had simply entered it
And Supervisor Gaiser responded affirmatively when
asked Did employees ever have occasion to have to go
in there [the office] when there was no one there?
Moreover the evidence also shows that the lock on
the office continued to be vulnerable for more than a
year after Lauritsen s discharge Thus Echelbarger tests
feed that he demonstrated yet a third time to nurse
Hudson after Lauritsen s discharge that the lock could
still be penetrated with a credit card even though a
second repair effort (authorized by Plant Manager Clark
on the day Lauritsen was suspended) had made it no
longer possible to use a newspaper to slip it And both
mechanic Sheeley and nurse Hudson agree that this still
insecure state of affairs persisted until only about a
month before this trial when the privacy type lock
was finally removed and replaced (by an outside contras
tor according to Sheeley) with a deadbolt lock system
None of this testimony was contradicted by Respond
ent s presentation
4 Respondents investigation
On July 25 Johnson mailed a formal discharge notice
to Lauritsen stating that the Company s action was ne
cessitated by your attempting to break into and enter the
plant employment office
Before reaching the conclusion that Lauritsen s dis
charge was necessitated however Repondent s agents
had determined in close consultation with corporate
labor relations officials in Omaha 32 to investigate fur
ther into the incident Exactly what took place during
this intervening period and when is especially hard to
discern with any certainty not only were Respondent s
witnesses vague on many salient points but they often
contradicted one another or made claims that are either
contradicted by other known facts or lacking in corrobo
rative evidence that it was within Respondents power to
produce The actions of Respondents agents during this
period are moreover puzzling not only for what those
agents claimed to have focused their investigative efforts
on but also for what they failed to look into all as I dis
cuss below
One matter on which the three top managers (Clark
Wiss and Johnson) appear to agree is that they went to
the office just after dismissing Lauritsen from the plant
under escort on July 18 There they tried to use a credit
card to slip the lock and were unable to do so Explain
ing why they did this Clark stated that he simply wished
32 Although Plant Manager Clark was extremely evasive when asked
for particulars about his communications with Omaha he grudgingly
conceded at least that the Omaha officials themselves were fully mindful
of who Chris Lauritsen was And on brief Respondents counsel
grants that Launtsen s role as a union activist may have caused the
plant officials to take extra care in dealing with the Lauritsen affair
ARMOUR CON AGRA
to see whether there was something wrong with the
lock that needs to be corrected (thereby disowning any
suggestion that it was somehow important to the manag
ers to determine whether Launtsen was telling the truth
when he spoke of intending to use a credit card rather
than a screwdriver to slip the lock) And even though
the managers claim not to have been able to spring the
lock with a credit card Clark inexplicably insists that he
nevertheless immediately caused a work order to be
put together to install a stainless steel plate and
verified within a day or the same day that [Lauritsen]
was suspended that such a plate had been installed 33
Setting aside the never answered question how this expe
dition might have helped Respondents agents reach the
judgment that Launtsen s discharge was necessitated I
find it even more significantly curious that none of the
three managers used the opportunity of their visit to the
office on July 18 to ask either nurse Hudson or Employ
ment Manager Kelley what they might know about any
previous examples of employees having slipped the door
lock to gain entry-this despite the fact that both Clark
and Johnson admitted that the two occupants of the
office were within that office while the managers con
ducted their own experiment with a credit card
This latter feature of Respondents managers investi
gative efforts suggests that company agents were avoid
mg any investigation into Lauritsen s assertion that it had
been common practice before then for employees to
jimmy the doorlock This inference is strengthened by
Clark s admission that he never personally investigated
Lauritsen s common practice claims and was not
aware that anyone else had ever done so either It is
reinforced further by the General Counsels examination
of Johnson as follows
Q To your knowledge has any investigation
been made concerning other employees getting
access to the nurses office by means other than a
key?
A Are you talking about that point in time?
Q Up to and including the time of Lauritsen s
termination
A I was not aware of that Again I was new in
the area and I had no knowledge of that
Q Since that time has any other employee been
discharged or suspended or punished for gaining
access to the nurses office by means other than a
key?
A No
Q Has any investigation been conducted con
cerning other employees gaining or seeking access
to the nurses office by means other than a key?
A No
33 Adding to this inherently curious account is the fact that no one else
ever mentioned such a plate (not Hudson nor especially Echelbarger
who specifically testified that after Lauritsen s discharge the doorlock
had been fixed enough to prevent a newspaper from being used to slip
the lock but was still vulnerable to a credit card thereby seemingly con
tradicting the notion that a protective plate had been installed ) Consid
ering Echelbarger s evidence I believe only that Clark directed that some
additional repair effort be made one that did not cure the problem and
that over a year later was supplanted with an entirely new deadbolt
system
973
Moreover when Johnson prepared a memorandum on
July 30 documenting the company s treatment of
Lauritsen he summarized the Company s investigation in
terms that do not directly address the common prac
tice issue (indeed his memorandum is striking for its
artful avoidance of the point and for its other misrepre
sentations as I discuss elsewhere below )
The only person to claim that he had investigated the
common practice issue was Wiss who (under seques
tration orders and called by Respondent to testify after
Clark and Johnson had left the witness stand) eventually
claimed in summary terms that he had himself conducted
an investigation of sorts into this question ( I inquired
amongst my supervisory staff )
I do not believe Wiss I note first or course that if he
did so neither Clark nor Johnson ever learned of it
Moreover Wiss was vague when pressed for details
Thus asked to state which supervisors he had inquired
amongst Wiss stated that probably Leroy Lyrner
was one whom he had asked whether it was common
practice for somebody to break into the employment
office to get aspirin and that Lyrner had replied sup
posedly No matter of fact they have aspirin right there
in the pilot shop And that was the next thing I investi
gated I went to the pilot shop to see and I investi
gated that and there was aspirin in the jar But Re
spondent chose not to call Lyrner to corroborate Wiss
and it is hard to believe that Lyrner who told Lauritsen
that he regarded Lauritsen s suspension over the July 13
incident to be the biggest bunch of bullshit [he had]
ever heard of would have withheld that opinion from
Wiss had Wiss ever questioned Lyrner Later pursued
again regarding details of his alleged inquiries among the
supervisors regarding what he called a policy to break
into the office Wiss claimed to recall having spoken
with Crandall although he never reported Crandall s
reply But Crandall himself described only a conversa
tion in which Wiss had informed Crandall of Lauritsen s
suspension never mentioning any question from Wiss
about any prior break in practices And later in his tes
timony Crandall further denied that Wiss had ever con
suited with him on the subject of Lauritsen s suspension
or discharge Once again I conclude that Wiss was
merely improvising I find that he contented himself with
establishing only that aspirin was available on the
plant floor and made no inquiry (at least none whose re
suits he was willing to disclose) into the matter of previ
ous office entry practice
The only other evidence of an investigation by Re
spondent s agents is to be found in the testimony of
Johnson and in his July 30 memorandum prepared for in
clusion in Lauritsen s personnel file In his memo John
son stated materially
To Personnel File
From D E Johnson
Subject Termination of Lowell (Chris) Lauritsen
At the request of Omaha labor relations officials
Ed Murphy and Dorothy Osborn I have personally
verified the following
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There has not been an incident of breaking and
entering or theft where an employee was caught
2 Aspirin was available both in the maintenance
office and at the guard station If Chris had
checked there would have been a guard on duty at
the guard station In addition the maintenance
office is not locked and he could have obtained as
pirin there
3 I checked with Rick Sturges and he indicates
that he hardly knows Chris and there have been no
grudges or animosity between them
I set aside discrepancies between Johnson and Wiss as
to who it was who had actually personally verified the
availability of aspirin in the plant and at the guard sta
tion similarly I will not dwell on the lack of corrobora
tion by Sturges of Johnson s claim that he had deter
mined from Sturges that Sturges bore Lauritsen no ill
will This latter item is of such seeming irrelevance in
any case that it strikes me as mere makeweight an effort
to lard the documentary record and to obscure the frail
ties of the substantive investigation
What seems more revealing about Johnson s report is
his careful averral in item I that there had never before
been an incident of breaking and entering nor of
theft where an employee had been caught Clearly
Lauritsen had not been caught at either such offense
and Johnson s statement therefore merely topped a straw
man rather that item in Johnson s report simply fuels
the impression that Respordent s agents were conscious
ly sidestepping Lauritsen s claim that slipping the lock on
the office was common practice
Most significant of all however Johnson was playing
with historical truth even as his own narrow inquiries
had revealed that truth when he claimed that there had
never been an incident in which an employee had been
caught in an act of theft As Johnson explained he
had been instructed by Omaha during the investigation
stage to determine if anyone was terminated for
theft as such Pursuing that inquiry he had discovered
at least one case in which an employee Al Foell had
been caught in the warehouse out of his own regular
work area in possession of cheese which was compa
ny property stored in the warehouse and used as an addi
Live in one of Respondents product lines As Johnson
admitted company records showed that Foell had not
been discharged but rather had received a 12 day sus
pension for theft 34
The record shows an additional instance in which Re
spondent issued only a disciplinary suspension without
pay to two employees actually caught in an act
deemed by the Company at the time as theft This was
brought out by the General Counsel at the rebuttal stage
Employee Gary Kraus testified in substance that he had
accepted a piece of stolen meat product from a fellow
employee their actions had been detected by a plant
guard when they left the plant they were both subse
3 Attempting to minimize this at trial Johnson habitually described
Foell s offense as eating cheese (a mischaracterization that Respond
ent s counsel continues to employ in adverting on brief to the Foell mci
dent) Company records plainly treat the Foell incident as theft not any
thing as trivial as eating on company time
quently grilled in management offices his fellow employ
ee had been suspended without pay for 5 days and
Kraus himself had received a 3 day suspension for
having accepted stolen product Johnson was not re
called to explain how that incident had escaped his
review
Explaining finally why his awareness that Foell had
only been suspended for actual theft did not cause
plant officials to merely suspend Lauritsen rather than
fire him Johnson spoke about the magnitude of Laur
itsen s offense as compared to Foell s Invited to elabo
rate Johnson rested on the fact that confidential
records were stored in the office that Lauritsen had
planned to enter before changing his mind
5 What the foremen said to employees
Schreiver testified that he spoke alone with Supervisor
Crandall during the week Lauritsen was on suspension
In that conversation Schreiver opined that the only
reason that he got suspended was because of the
union activity he was in Crandall replied I know
what you mean
Wolf recalled that on the Sunday after Chris was
fired during a conversation with Crandall at Wolf's
house Crandall said that all the way through from
[Lauritsen s] going to third shift to the suspension to the
firing was because of his Union activities Later during
the investigation of the Union s unfair labor practice
charges Wolf recalls Crandall saying They ve been
after Chris since day two because day one they didn t
know who he was
I credit Schieiver and Wolf As noted earlier Crandall
admittedly held the beliefs that those employees say he
voiced and Crandall never denied making those state
ments rather as Crandall once conceded he might
have said something here and there
Wolf also described remarks made by Supervisor Ted
Balek (who did not testify) during a tavern conversa
tion Discussing the deal at the nurses office Wolf
quotes Balek as saying If it wouid have been anyone
other than Chris nothing would have ever been said
But because [off Chris and his Union activities and [the]
Union campaign they finally found the reason they were
looking for to get rid of him I credit Wolfs uncontra
dicted testimony
6 Concluding findings
In Wright Line the Board fashioned an analytical
framework useful primarily for deciding the types of
causation questions presented in dual motive cases
i e cases in which an employer with proven historical
animosity towards his employees statutorily protected
activities has disciplined or discharged an employee who
engaged in such protected activities but who has also
committed some arguable act of misconduct for which
the employer might legitimately punish him or her Re
spondent s suspension and discharge of Lauritsen present
nice questions under Wright Line this is because while
there exist ample grounds for finding a prima facie case
ARMOUR CON AGRA
that unlawful discrimination influenced these actions 36
neither can it be doubted that Lauritsen went to the
office on July 13 mtending-until he changed his mind-
to jimmy the lock and to enter the office arguably an
act of misconduct (had it ever happened) that might
be expected to trigger some kind adverse reaction from
his employer And it is in cases such as this when judg
ments must ultimately be made not only about whether a
union activist engaged in misconduct but even if so
whether that misconduct truly caused the employer to
discharge him that the tests prescribed in Wright Line
become especially difficult to apply
One of the practical difficulties in applying Wright
Line s teachings stems from the uneasy coexistence in
that decision of two arguably conflicting expressions re
garding the parties respective burdens once a prima
facie case of discrimination has been established by the
General Counsel On the one hand the Board has stated
once this is established the burden will shift to the em
ployer to demonstrate [emphasis added] that the same
action would have taken place even in the absence of
protected conduct (251 NLRB at 1089) On the other
hand the Board noted (251 NLRB at 1088 fn 11) that
while the employer must make out what is actually an
affirmative defense to overcome [emphasis added] the
prima facie case the General Counsel nevertheless re
tains the ultimate burden of establish [ing] an unfair
labor practice by a preponderance of the evidence [empha
sis added] Evidently therefore the result of a Wright
Line analysis may depend in a given case on which of
the foregoing phrases one chooses to emphasize
I am satisfied that Respondents presentation has not
overcome the General Counsels prima facie case and
that Respondent has failed to demonstrate that it
would have fired Lauritsen even if he had not been a
union activist But my conclusions elaborated below do
not rely on any particular emphasis being placed on the
employers burden In fact being uncertain as to the
precise implications of the statement in Wright Line
which refers to the General Counsels ultimate burden
I have assumed that any doubts about how the evidence
finally preponderates on any material point are proper
ly resolved against the General Counsel
If I were to accept that Lauritsen s actions amounted
to a kind of misconduct I would also concede that
Respondent has gone at least part of the required dis
tance towards neutralizing the prima facie indications of
discrimination But in evaluating this threshold question
I must confront an obvious point unfavorable to Re
spondent Lauritsen never actually got around to spring
mg the doorlock on July 13 at most relying on Sturges
95I have found (a) that Respondent was historically hostile towards
Lauritsen s union activities (b) that Respondent moved by antiunion
animus discriminated against Lauritsen by reassigning him to the grave
yard shift and (c) that three of Respondents supervisors told employees
that Lauritsen s suspension and discharge were caused by his union ac
tivities These facts were enough (indeed the supervisors statements
were alone enough see NLRB v Dorothy Shamrock Coal Co supra) to
constitute a prima facie case that Lauritsen s union activities were a mo
tivating factor in Respondents decision to fire him Adding to these cir
cumstantial telltales moreover is that aspect of Respondents defense
discussed further below that directly caused Respondent to impute
darker union related motives to Lauritsen s admitted behavior
975
and Bonjour s perceptions and ignoring Lauritsen s ac
count I might find that he had made a preliminary at
tempt to do so before abandoning such an effort And at
most in that case his misconduct involved the enter
taming of an intention to do something arguably wrong
followed by an incomplete act in furtherance of his in
tention an act that he quickly reconsidered and then
abandoned Despite this and despite the evidence that
suggests that the Company did not see even the success
ful bypassing of the doorlock as misconduct 36 1 will
assume hereafter that Lauritsen s actions involved a
degree of misconduct Put another way even if the
record suggests a certain tolerance on Respondent s
part that evidence would not necessarily justify the in
terpretation that bypassing the locked door was a fully
accepted intention to enter the office when he realized
that there was another alternative (the use of Schreiver s
key to the dry sausage cabinet) I will assume that Laur
itsen himself was aware that bypassing the doorlock was
a disfavored means of solving his headache problems
These assumptions favorable to Respondent although
themselves debatable do not ultimately rescue Respond
ent from a judgment that it broke the law in firing Laur
itsen At best they might provide the germ of a justifica
tion for summoning Lauritsen to explain himself and
having heard his explanations perhaps for investigating
further to determine whether Lauritsen s admitted ac
tions and intentions were so out of line with tolerated
practices to justify discipline of some sort I must part
company with Respondent after this point however for
I find no further grounds for genuine doubt that I might
resolve in its favor Rather it is in analyzing Respond
ent s behavior from July 18 onward that I see the strong
est evidence that Respondents decision to fire Lauritsen
was irremediably tainted by discrimination indeed that
its professed concern over his alleged attempted break
in was largely a pretext for its actions
Based on facts discussed in earlier findings I conclude
that Respondents agents were at least aware before July
13 that the doorlock was bypassable Important compa
ny agents including the then Chief Personnel Officer
Miller were fully apprised on that score by nurse
Hudson Moreover that information gave Respondent s
agents ample grounds for suspecting that other employ
ees had been bypassing the lock I also find it unbeliev
able that Respondent was ever truly concerned about
employees having unsupervised access to the office One
reason for my disbelief is that most of the confidential
files were stored under separate lock Another reason is
that employees had been allowed by their supervisors in
the past to go to the office unescorted using a key pro
vided by a supervisor Another reason is the apparent
lack of urgency shown by Respondents agents in secur
36 refer here to evidence showing that employees had sprung the
office doorlock before Lauritsen s attempt on July 13 and that some
members of Respondents management were in possession of ground for
suspecting (if not clearly knowing) that this was going on and had done
little about it except to improvise a temporary and quite inadequate
repair of the lock
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing the office door even after nurse Hudson made an
issue of the condition of the doorlock 37
Given the foregoing I find it striking that Respond
ent s agents reacted so strongly when Merlin Schaefer
hurried into the plant managers office with the informs
tion he had just gotten from Bonjour and Sturges Simi
larly striking was the presumption adopted by the corn
pany officials-manifested even before Lauritsen was
asked on July 18 to explain himself-that Lauritsen s ac
tions constituted an act [sic] of theft a presumption
that was not shaken even after Lauritsen provided an
innocent reason-his need for a headache medica
tion-for wishing to enter the office (Wins I still
regard this as an act of theft ) It seems plain from this
that the Company had imputed a union purpose to
Lauritsen s actions and had become wedded at a very
early point to the presumption based solely on Laurit
sen s status as a union activist that he could not have
had innocent intentions 38 That Respondents agents
explain so many of their actions in terms of this presump
tion itself necessarily implies that the whole affair might
have been dismissed as an innocent irregularity if an em
ployee of less conspicuous prounion leanings had been
involved To that extent I conclude that an element of
discrimination had been injected into Respondent s
treatment of Lauritsen s case from the very outset
It is hard to ignore these strong indications that Laur
itsen s special status was what triggered Respondent s
highly adversary posture towards his case but one need
not rely simply on the inference that Lauritsen was not
accorded the same preliminary benefit of the doubt that
would have been applied to other employees I have dis
cussed at some length Respondents investigatory myopia
on and after July 18 the studied avoidance on the part
of its agents of any existing evidence of a practice and
their failure to conduct any inquiry at all into the
common practice issue Their actions seem consistent
only with a desire to make a case against Lauritsen-at
least this is the only explanation that I can discern for
their having rested once they ascertained that aspirin
could have been obtained elsewhere in the plant as
Finally it seems clear enough that Respondent did not
behave consistent with its prior disciplinary practice
when it chose to fire Lauritsen for the attempted break
in As we have seen at least three employees guilty in
the Company s eyes of actual theft had not been fired
37 Foreman Youngblut knew from mechanic Sheely that the lock had
not been fixed adequately after Hudson had first reported her concern for
the security of her purse Even after Lauritsen was fired the lock contin
ued to be vulnerable for more than a year until something (I infer it was
the imminence of this trial) caused someone (I have no idea who) finally
to decide to make a serious effort to secure the office
38 When Human Resources Manager Johnson spoke of the relative
magnitude of Lauritsen s offense compared to the actual theft of
cheese by employee Foell he clearly evidenced the Company s presump
tion that Lauritsen intended to steal company records a presumption
that quite obviously arose from Lauritsen s unique status and that colored
the Company s view of the situation And Respondent underscores the
same point by devoting a substantial piece of its brief to the otherwise
unremarkable proposition that Lauritsen s (presumed ) intention to assist
the Union by rifling company records was activity that (had it ever oc
curred) would have been unprotected by the Act R Br at 19-20
s In the penultimate paragraph in this section I make additional com
ments about the significance to this case of Respondents discovery that
aspirin was available in the plant
and Human Resources Manager Johnson had become
personally aware of at least one such case before he
issued the termination notice to Lauritsen And Johnson s
attempt to conceal or obscure this fact in his July 30
documentation strongly evidenced his awareness that a
discharge of Lauritsen involved a departure from compa
ny practice Moreover his attempt to find in Lauritsen s
theft which never happened an offense of greater
magnitude than the actual theft of company product
by employee Foell involved a non sequitur of such glar
ing obviousness that it carries a potent probative force of
its own in establishing that Respondent had unlawful ul
terror motives in firing Lauritsen 40
In reaching all these conclusions I have given full
consideration to Respondents counterexplanations of its
behavior Respondent would have me find that the avail
ability of aspirin in the plant was sufficient in itself to
demonstrate to a reasonable employer that Lauritsen had
been lying-not merely speaking loosely-in his July 18
account of his actions and therefore that he must have
been concealing a guilty intention One obvious point in
rebuttal is that company agents had already decided that
Lauritsen was guilty of an act of theft before their in
vestigation confirmed the existence of aspirin in the
plant But even if aspirin was known by company
agents to be available4 i the implications of this fact are
not obvious Certainly the fact might invite an open
minded investigator to ask an additional question
namely What might Lauritsen have been seeking if not
aspirin 9 But Respondents ready answer-that he must
have intended to steal confidential material for a union
purpose-was hardly an inevitable conclusion given that
most of that confidential material was under separate
lock and that the Union already possessed from the
Company a reasonably current list of employees names
and addresses the only material that Lauritsen might
have discovered by a painstaking search of the individual
cards stored in one of the unlocked cabinets Thus if the
fact that aspirin could be found in the plant created
grounds for doubt about Lauritsen s specific intentions
there existed at least equally strong grounds for doubting
that he intended to steal confidential information Ac
cordingly it seems clear that the Company jumped to a
conclusion unsupported by any reasonable evidence
We are not required to be naif(Shattuck Denn
Mining Corp supra at 470) and I simply cannot accept
if an employee not conspicuously associated with the
Union had been in Lauritsen s shoes that Respondent s
agents would have as readily drawn that conclusion
would have refrained from any inquiry into past office
entry practice and would have decided to fire that
employee for an attempted theft based solely on the
ground that the employee might have been able to find
elsewhere in the plant what he claimed he intended to
obtain from the office Especially when Respondent s
practice in other cases of actual theft was to issue only a
disciplinary suspension such a suggestion defied belief
40 Shattuck Denn Mining Corp supra 362 F 2d at 470
4 It has never been disputed as Lauritsen testified that Tylenol was
not available in the plant on July 13 except in locked cabinets or in the
nurses office
ARMOUR CON AGRA 977
And to judge otherwise would be to conclude that the
key to disposition of this case is whether in fact Laurit
sen had actually said aspirin rather than Tylenol on
July 18 a notion that strikes me as ludicrous given the
overall state of the record and that accounts for my un
willingness to treat that distracting point of testimonial
conflict as worthy of a credibility resolution
I conclude that Respondents decision to suspend
Lauritsen was reached not as part of any good faith rou
tine but rather only for tactical purposes to create the
superficial appearance of even handedness and to buy
time for an investigation during which Respondent
could perfect a case against Lauritsen Consistent with
this view I conclude that Lauritsen s discharge had been
preordained by July 18 and that all Respondents actions
surrounding and including his suspension and discharge
were part of an unlawful scheme that violated Section
8(a)(3) and derivatively Section 8(a)(1) 42
CONCLUSIONS OF LAW
Based on the foregoing I conclude as a matter of law
that Respondent Armour Con Agra an employer en
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act unlawfully discriminated within the
meaning of Section 8(a)(3) of the Act against its employ
ee Lowell (Chris) Lauritsen by transferring him to the
graveyard shift on February 10 1986 and by suspending
and later discharging him on respectively July 18 and
25 1986 Those actions derivatively interfered with re
strained or coerced employees in the exercise of statu
tory rights within the meaning of Section 8(a)(1) of the
Act When various supervisory agents of Respondent
told employees in substance that Respondent took those
actions against Lauritsen because of his union activities
Respondent independently violated Section 8(a)(1) of the
Act
REMEDY
To remedy these violations the substantive portions of
my recommended Order prescribe that Respondent shall
cease and desist from those acts and from any like or re
lated acts that Respondent shall post an appropriate
notice to employees that Respondent shall restore the
status quo ante to those violations by offering immediate
reinstatement to Lauritsen to the position on the second
shift that he occupied before his unlawful transfer on
February 10 1986 43 by making him whole with inter
est 44 for any losses in pay or benefits he may have suf
42 For reasons explained in conclusions supra at sec D I d of this de
cision I further find that Respondent independently violated Sec 8(a)(1)
when its supervisors told employees in substance that Respondent had
suspended and fired Lauritsen because of his union activities
43 Reinstatement shall not be accompanied by any prejudice to Launt
sen s seniority or other rights and privileges If necessary Respondent
shall displace an existing second shift employee to make room for Launt
sen
44 Backpay shall be computed in accordance with our decision in New
Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after
January 1 1987 shall be computed at the short term Federal rate for
the underpayment of taxes as set out in the 1986 amendment to 26 U S C
§ 6621 Interest on amounts accrued prior to January 1 1987 (the effec
tive date of the 1986 amendment to 26 U S C § 6621) shall be computed
in accordance with Florida Steel Corp 231 NLRB 651 (1977)
fered as a consequence of his shift transfer and his later
suspension and discharge by removing from its person
nel records all references to its suspension and discharge
of him and by giving him written assurance that its un
lawful conduct will not be used as a basis for further ac
tions against him 45
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed46
ORDER
The Respondent Armour Con Agra Mason City
Iowa its officers agents successors and assigns shall
1 Cease and desist from
(a) Discriminating against employees with respect to
their hire tenure or any other term or condition of em
ployment to discourage their membership in or activities
on behalf of a labor organization
(b) Telling employees that they have transferred sus
pended or discharged an employee because of his union
activities
(c) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
remedy its violations and to effectuate the policies of the
Act
(a) Offer immediate full and unconditional reinstate
ment to Lowell (Chris) Lauritsen to the position he oc
cupied on the second shift before February 10 1986
(b) Make Lauritsen whole with interest for any losses
he may have suffered as a consequence of his shift trans
fer and later suspension and discharge
(c) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way
(d) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its Mason City Iowa plant copies of the at
tached notice marked Appendix 47 Copies of the
notice on forms provided by the Regional Director for
Region 18 after being signed by the Respondents au
thorized representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
45 Sterling Sugars 261 NLRB 472 (1982)
46 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
If 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 Nation
al 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
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT discriminate against employees in any
aspect of their employment with us because they join
support or assist United Food and Commercial Workers
Union or because they engage in any other activi y pro
tected by Section 7 of the Act
WE WILL NOT tell employees that another employee
has been transferred suspended or discharged because
of his union activities
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer immediate full and unconditional rein
statement to Christ Lauritsen to his former position on
the second shift We will make him whole for any loss of
earnings and other benefits resulting from his discharge
less any net interim earnings plus interest
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis
charge will not be used against him in any way
ARMOUR CON AGRA