Arvin Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1976

226 N.L.R.B. 925 (N.L.R.B. 1976)

ARVIN INDUSTRIES, INC
Arvin Industries , Inc. and International Union of Elec-
trical, Radio and Machine Workers, AFL-CIO-
CLC. Case 26-CA-5904
November 16, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On May 5, 1976, Administrative Law Judge Frank
H. Itkin issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief. The General Counsel also filed ex-
ceptions and a supporting brief to which Respondent
submitted an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge concluded that Re-
spondent violated Section 8(a)(1) and (3) by interro-
gating employee Layton about his union membership
and interests, by withholding assignments from and
restricting employee Layton to the maintenance shop
area because of his union activities, by changing the
job assignment procedures for its maintenance em-
ployees and restricting their work area because of
employee union activities, and by issuing a warning
to employee Layton on February 11 because of his
union activities. Respondent excepts to these conclu-
sions, asserting that the evidence is insufficient to
support the findings of unlawful conduct. We find
merit in these exceptions.
Arvin Industries operates a plant engaged in the
manufacture of portable electric heaters. Of Respon-
dent's 234 employees, 10 work in the maintenance
department. Thomas Layton, who was hired as a
maintenance mechanic in May 1974, first engaged in
union activity when he attended a union organizing
meeting on October 23, 1975.' At this meeting, Lay-
ton and several other employees signed union au-
thorization cards and were also given blank cards to
use in getting other employees to sign. Early the next
day, Layton and Plant Engineer Stan Sanders, one of
1 Layton himself testified that, although there had been union activity at
Respondent's plant in the previous year or two, he had not supported the
Union.
925
Layton's immediate supervisors, had a conversation
pertaining to the October 23 union meeting.
Contrary to the Administrative Law Judge, we do
not find that Sanders' conversation with Layton
tended to interfere with employee Section 7 rights in
violation of Section 8(a)(1). Sanders' remarks were
neither coercive nor uttered under circumstances that
would induce fear of reprisal among employees. The
exchange between Sanders and Layton essentially
was limited to Sanders' casual query, "How did your
meeting go last night," to which Layton replied that
"it went pretty well . . . we had a nice turnout."
When Layton informed Sanders that he was given
blank authorization cards by the union organizer,
Sanders asked if Layton would "mind him looking at
[one]." Layton responded that he did not care and
showed Sanders a card which Sanders looked over
and returned to Layton. During the brief conversa-
tion, Sanders gave Layton assurances of his right to
engage in union activity. Layton testified that, except
for this conversation, no other supervisor ever ques-
tioned him about the Union. Nor is there any evi-
dence of any other interrogations or related conduct.
As discussed below, we also note our disagreement
with the Administrative Law Judge's finding that Re-
spondent subsequently engaged in other unlawful
conduct. The October 24 conversation must be
viewed therefore as a single incident. Standing alone,
in the total context of all the circumstances here, we
do not believe that the nature of Sanders' remarks is
sufficient to establish the kind of interference, re-
straint, or coercion which constitutes a violation of
Section 8(a)(1).2
We also disagree with the Administrative Law
Judge's conclusion that Respondent confined and re-
stricted Layton to the maintenance shop after No-
vember 12, 1975, for reasons violative of Section
8(a)(1) and (3). In reaching this conclusion, we deem
particularly significant the fact that, between July 24
and November 12, 1975, Layton received three writ-
ten warnings for misconduct involving wasting time
and violation of company rules. Two of these written
warnings, dated July 24 and September 2, were is-
sued before Layton became involved in union activi-
ty and, as explicitly found by the Administrative Law
Judge, the third, dated November 12, was issued for
lawful business reasons.
The July 24 memorandum, signed by Plant Engi-
neer Sanders and Maintenance Foreman Langston,
refers to Layton's "roaming about the building, chat-
ting with employees and imposing himself in busi-
ness not his own." Langston testified that the warn-
ing was based on reports from various supervisors
2 Boston Cab Company, Inc & McCann's Taxi, Inc, 212 NLRB 560
(1974), Dieckbrader Express, Inc, 168 NLRB 867, 869 (1967)
226 NLRB No. 122
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
throughout the plant. According to Langston, Lay-
ton was then warned "to stay uninvolved with other
department's problems and to do his job and let ev-
eryone else try to do theirs, and not be roaming
around bothering production employees out in the
plant." 3 On September 2, Layton received a further
warning for leaving his work area early and waiting
at the timeclock before the end of his shift. On No-
vember 11, Layton was observed at the timecard
racks counting and handling timecards when he was
supposed to be working. Layton's conduct contra-
vened Respondent's publicized policy of prohibiting
employees from handling the timecards of other per-
sonnel.4 As a result of Layton's actions, a final warn-
ing conference was held on November 12 at which
Respondent informed Layton that "we will not toler-
ate your not doing your job, handling others' time-
cards or wandering around the plant." Respondent
further instructed Layton that "he was to return to
his work area (maintenance dept.) for reassignment
after he completed each job and not to be wandering
around the plant getting into other people's work ar-
eas while they are working and going through the
timecard racks." 5 Citing the prior warnings issued to
Layton "long before he had engaged in any union
activities" and Respondent's policy concerning time-
cards, the Administrative Law Judge found that the
warnings given to Layton on November 12 were not
coercive or unlawfully motivated. It is against this
background of Layton's proclivity for wasting time
and violating plant rules that Respondent's decision
to restrict Layton to the maintenance shop must also
be viewed.
The Administrative Law Judge nevertheless found
that Respondent withheld job assignments from Lay-
ton for 4 or 5 days after the November 12 warning
conference and thereafter restricted him to the main-
tenance shop because of union activities. In our judg-
ment, the record does not support this conclusion.
Rather, the evidence substantiates Langston's un-
disputed testimony that, as a result of recurring
complaints from supervisors concerning Layton's
wasting time and interfering with the work of their
employees, he and Sanders decided to limit Layton
to the maintenance department area so that Layton
could be more closely supervised and thereby avoid
the problems he was having.' When Foreman Lang-
3 Langston expressed belief that Layton was also told that he was being
placed on probation to see if he could correct these problems
Personnel Manager Perkins ' credited testimony indicates that this policy
has been communicated to Respondent 's employees As noted by the Ad-
ministrative Law Judge , Perkins' testimony was substantiated by the testi-
mony of Assistant Personnel Manager Young and Vice President and Plant
Manager Hamilton
5 Present at the conference were Layton, Plant Engineer Sanders , Person-
nel Manager Perkins , and Plant Manager Hamilton Hamilton prepared a
written account of the conference , dated November 12, 1975
ston assigned Layton the job of building an electrical
control panel in the maintenance shop on November
16 or 17, Langston expressed his concern by com-
menting that "he had to keep [Layton] in the shop
and . . . out of trouble." In light of Layton's ac-
knowledged propensity for wasting time,' we dis-
agree with the Administrative Law Judge's sugges-
tion that Langston's statement was directed towards
Layton's union activities. Significant in this vein is
that the July 24, 1975, written warning, signed by
Langston 3 months before Layton's union activities
began, contains the similar statement: "We want to
keep him out of trouble." It is clear that the reference
to "trouble" at that time concerned Layton's wasting
time and bothering other employees. Nor are we per-
suaded otherwise by employee Kinkennon's testi-
mony that maintenance employees "would kid" Lay-
ton "about the trouble that his union activities got
him in." There is no evidence that Respondent ever
said anything that would lead either Layton or any
other maintenance employee to believe that Layton
was restricted because of union activities.'
We are convinced, instead, that Layton's re-
striction to the maintenance shop reflects the culmi-
nation of a series of warnings involving Layton's mis-
conduct which began well before Layton engaged in
union activities. Personnel Manager Perkins testified
that Respondent uses a system of progressive disci-
pline. On July 24, 1975, Layton received a "second
stage" warning 9 and, on September 2, he received a
further warning for wasting time at the timeclock. In
light of these warnings, Layton's violation of Re-
spondent's timecard rule on November I1 was
deemed serious enough to warrant a final warning
conference.10 It is erroneous, therefore, for the Ad-
ministrative Law Judge to assert that Respondent
"issued no warnings to Layton" prior to limiting him
to the maintenance shop. The Administrative Law
Judge himself ruled that the November 12 final
warning was lawfully motivated. By the Administra-
tive Law Judge's own finding, at this point in time,
there is no evidence that Respondent harbored any
union animus or a disposition to otherwise discrimi-
nate against any employee on the basis of union sup-
port. Even assuming that for a period of 4 or 5 days
6 Langston estimated that, prior to early October, Layton was assigned to
work in the shop 40 percent of the time, with 60 percent of his assignments
in the plant After his assignment change, Layton was assigned to work in
the shop 75 percent of the time Langston added that the time maintenance
employees spend in the maintenance shop will vary from day to day
Layton admitted "I do stop and talk to employees in other departments
when I'm out in the plant working on working time and about non-work
related subjects "
8 There is also no evidence that Respondent knew Layton was being kid-
ded by his fellow employees
' The first step is a verbal conversation between the employee and super-
visor about a particular problem
10 Layton was told that he would be discharged if his wandering around
the plant or handling of others' timecards continued
ARVIN INDUSTRIES, INC. 927
after November 12 Layton was restricted exclusively
to the maintenance shop under close supervision, this
in no way establishes that Layton was restricted be-
cause of his union activities. When viewed in the
context of Layton's prior misconduct, his restriction
to the maintenance shop can only be deemed reason-
ably and lawfully motivated.
Nor do we agree with the Administrative Law
Judge's conclusion that Respondent unlawfully
changed its work assignment procedures for mainte-
nance employees on February 6, 1976. Rather, we
agree with Respondent's assertion that this action
was designed to increase the efficiency of the mainte-
nance department's operation and to make more ef-
fective use of employees' time. In this respect, the
record indicates that, prior to January 1, 1976, the
maintenance department was jointly supervised by
Plant Engineer Sanders and Maintenance Foreman
Langston. Production supervisors, however, could
also assign work to maintenance employees when
they were working in the plant. This procedure had
certain drawbacks because Sanders and Langston
could not always know where, or on what jobs, the
maintenance employees were working. If an emer-
gency repair were required, the maintenance employ-
ees could not always be located.
On February 6, 1976, in his first meeting with
maintenance employees since assuming primary re-
sponsibility of the maintenance department," Lang-
ston informed the maintenance employees of a
change in work assignment procedures. Langston
told the employees that other department heads had
complained that the maintenance employees were
spending too much time in production areas and that
he wanted this practice to cease. He instructed the
employees that all future maintenance work assign-
ments would be made only by himself or by Plant
Engineer Stanbaugh. When the employees completed
a job, they were to return directly to the maintenance
shop to receive a new assignment without stopping to
talk to other employees.
Absent any indication in the record of Respon-
dent's union hostility, there is no basis for the Ad-
ministrative Law Judge's conclusion that Respon-
dent was acting "in response to employee union
activities." It is significant that there is no evidence
that any of the maintenance employees, except for
Layton, was involved in union activities. To find that
changes in the work procedures for the entire mainte-
nance department were made in response to Layton's
union activities is untenable. This conclusion seems
especially warranted when it is considered that
Layton's work assignment procedures were similarly
11 Sanders left Respondent 's employ on January I, 1976
altered during the November 12, 1975, final warning
conference. As discussed, the Administrative Law
Judge found that action to be lawful. Nor are we
persuaded, as inferred by the Administrative Law
Judge, that Respondent was reacting to the Union's
filing of a representation petition on January 15,
1976. Long before the Union engaged in any organi-
zational efforts, Respondent evidenced its concern
with the problem of employee time wasting.12 The
undisputed testimony of both Langston and mainte-
nance employee Leslie indicates that the changes im-
proved the efficiency of the department's operation.
Viewed in this light, we do not believe that the
change in assignments, affecting only 10 mainte-
nance employees, is attributable to the Union's peti-
tion involving Respondent's 234 production and
maintenance employees.
We also perceive no basis for the Administrative
Law Judge's finding that Respondent unlawfully is-
sued a warning to Layton on February 11, 1976. On
February 10, while working on a job in the thermo-
stat department, Layton was approached by Supervi-
sor Calloway who complained about the head on the
tapping machine. Referring to Langston's instruc-
tions of February 6, Layton told Calloway that he
could not talk to her because he was "not to talk to
anyone" while on a job assignment. Annoyed with
Layton's comment, Calloway wrote up this exchange
with Layton and submitted it to Personnel Manager
Perkins. Perkins, in turn, instructed Langston to dis-
cuss the incident with Layton.
Layton's own account of the February 11 confer-
ence with Langston and Plant Engineer Stanbaugh
substantiates the conclusion that Layton was not
even issued a formal warning. According to Layton,
Langston stated: "Well, this is why we're talking to
you, to get your side of the story. They've got her
side in writing." When Layton asked Stanbaugh:
"Was I in the wrong in telling her that it was none of
my business why she couldn't keep taps for her tap-
ping machine," Stanbaugh replied, "no, there was
nothing wrong in that." 'J
As a result of Layton's interpretation of
Langston's February 6 instructions, Langston even
met with all maintenance employees on February 11
to correct what he termed a "misunderstanding."
Langston told the employees that his instructions did
not mean that they were not to talk to a supervisor
when working in that supervisor's department. No
12 For example , in addition to the written warnings received by Layton on
July 24 and September 2, 1975, maintenance employee Satterwhite received
warnings and a 3-day disciplinary layoff for wasting time on May 5 and
September 2, 1975 The record is also replete with evidence of written warn-
inPs issued to nonmamtenance employees for wasting time
3 Stanbaugh prepared a wnteup of the February I I conference Layton
testified that he was allowed to read Stanbaugh 's account of the conference
and that it was accurate
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disciplinary action, however, was taken against Lay-
ton. When it is considered that Layton had received
several written warnings for wasting time and violat-
ing plant rules, the February 11 conference with him
can only be deemed a reasonable attempt to investi-
gate another report of his alleged misconduct. 14
Conclusion
Based on the foregoing, we conclude that the evi-
dence is insufficient to support the Administrative
Law Judge's finding of unlawful conduct." Accord-
ingly, as the allegations of the complaint have not
been established, we shall dismiss it in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting:
I disagree with my colleagues that the evidence is
insufficient to support the findings that Thomas Lay-
ton was unlawfully interrogated and issued a written
warning, and that he, and subsequently all of the
maintenance employees, were unlawfully restricted
to the maintenance shop. In my judgment, Respon-
dent's actions were designed to harass Layton be-
cause of his union activities and to impede discrimi-
natorily the organizational efforts in the plant.
Layton's union activity began when he attended
the Union's first organizational meeting on the eve-
ning of October 23, 1975. After discussing the possi-
bility of unionization, Layton and other employees
signed authorization cards. Additional cards were
distributed by the union representative to be used in
organizing the plant. Layton thereafter was instru-
mental in getting 35 to 40 cards signed by fellow em-
ployees.
That Respondent was aware of Layton's consider-
able organizational activity is undisputed. On the
morning of October 24, 1975, Layton was asked
14 Personnel Manager Perkins testified that it is Respondent 's policy for
supervisors to prepare "writeups" of conferences held with their employees
These would include writeups of warning conferences as well as complimen-
tary wnteups or wnteups of investigation conferences . The contents of a
writeup determines its nature In light of the statements of Langston and
Stambaugh and because no disciplinary action was taken against Layton, it
appears that the February I I conference with Layton was not a "warning"
conference but an investigation conference.
is The Administrative Law Judge did not find violations with respect to
the November 12 warning to Layton concerning timecards , Layton's No-
vember 26 visit to the nurse's office without a pass, or Layton's February 4
conversation with Foreman Langston concerning the negotiability of bene-
fits
about the union meeting by Plant Engineer Sanders,
an acknowledged supervisor. After Layton informed
him that the meeting went well, Sanders made a
statement to the effect that he would support
Layton's rights as long as he did not "break the law,"
for example, by getting a card signed on company
time. When Layton told Sanders that the employees
had been given additional authorization cards to get
signed, Sanders asked if he could look at one. Layton
then gave Sanders a card which Sanders examined
and returned.
It is evident that Sanders' question was intended to
elicit information regarding employees' union activi-
ties. Mere assurances that Layton's rights would be
supported do not mitigate the otherwise coercive na-
ture of this incident. Thus, the morning after the first
union meeting, Layton was admonished that he had
better not break the law. In agreement with the Ad-
ministrative Law Judge, it is also significant in my
view that Respondent subsequently confined and
warned Layton because of his union activities and
similarly restricted other maintenance department
personnel because of employee union activities. San-
ders' interrogation of Layton must be viewed, there-
fore, as the initial stage of Respondent's unlawful an-
tiunion campaign, rather than as a "single incident,"
as characterized by my colleagues. When viewed in
this context, it is apparent that Sanders' interrogation
of Layton tended to interfere with employee Section
7 rights in violation of Section 8(a)(1).
I also agree with the Administrative Law Judge
that, in withholding job assignments from Layton
and thereafter restricting him to the maintenance
shop, Respondent was motivated, at least in part, by
the unlawful purpose of discouraging union activity.
In making this determination, I am also of the view
that the November 12, 1975, warning conference, at
which Respondent apprised Layton that he was to
return to the maintenance shop for reassignment af-
ter he completed each job and that he was not to
speak to anyone when going to and from the shop
was discriminatory in character and violative of the
Act. The disciplinary warning was issued to Layton
for allegedly tampering with other employees' time-
cards. It is apparent, however, that Respondent's
timecard policy was instituted to prohibit employees
from punching the cards of other employees or alter-
ing the cards. 16 Not only does the evidence fail to
show that Layton was trying to punch or "mutilate"
a card, but it is apparent that Respondent was ad-
vised at the warning conference that Layton was only
counting the timecards for the purpose of ascertain-
16 Personnel Manager Keith Perkins testified that Layton was not dis-
charged because the investigation failed to show that Layton was trying to
punch a card or mutilate a card in any way
ARVIN INDUSTRIES, INC 929
ing the total number of employees. As further ex-
plained by Layton at the hearing, he sought to de-
termine what constituted a majority of the employees
in the bargaining unit. In this context, the Adminis-
trative Law Judge's finding that Layton violated Re-
spondent's policy "not to handle timecards" of other
personnel seems an unduly mechanical application
of the policy, an application intended by Respondent
as part and parcel of the restrictions then being
placed upon Layton's contacts with his fellow em-
ployees.
That Respondent's alleged reasons for the Novem-
ber 12 warning were pretextual is evidenced by the
excessive actions subsequently taken by Respondent.
As Layton's credited testimony establishes, he re-
ceived no maintenance assignments whatsoever for a
period of 4 or 5 days after receiving the warning."
This was so, notwithstanding the backlog of mainte-
nance work which then existed outside of the shop.18
When Foreman Langston finally assigned Layton a
job to be done in the maintenance shop, Langston
commented that "he had to keep [Layton] in the
shop and . . . out of trouble . . . [a]nd he kind of
laughed about it."
That Respondent's action was attributable to Lay-
ton's union activities is suggested by Foreman Lang-
ston's own acknowledgement that Layton "is a good
employee, does good work, has varied skills and is a
good maintenance man." Nonetheless, with an ex-
cess of available maintenance work, Layton, alone,
was restricted to the maintenance shop because of his
conduct.19 In this context, Respondent's contention
that its decision to restrict Layton to the mainte-
nance shop was motivated solely by lawful business
reasons is not very impressive.20
Rather, I am convinced, in agreement with the Ad-
ministrative Law Judge, that Respondent confined
and restricted Layton in such a way that "employee
Layton and his co-workers understood that Layton
was in `trouble' because of his `union activities.' "
Probative in this vein is employee Kinkennon's testi-
mony that maintenance employees "would kid" Lay-
ton "about the trouble that his union activities got
him in and that sort of thing." When coupled with
17 Layton testified that Foreman Langston "would give all the other fel-
lows a job to go to" while he (Layton) "would be standing right there in the
bunch and [Langston ] wouldn't tell [him] nothing"
is Employee Kinkennon corroborated Layton's testimony in this respect
iv Foreman Langston acknowledged that, during the time in question,
Lajton was the only employee restricted to the maintenance shop.
U Foreman Langston 's uncredited testimony indicated that he had re-
ceived an increasing number of complaints about Layton's roaming around
the plant and talking to other employees Respondent 's witness , mainte-
nance employee Carl Leslie , testified , however, that he frequently talked to
employees in the plant about nonwork -related matters , in the presence of
supervisors, without any disciplinary action Maintenance employee Kink-
ennon testified similarly.
Respondent's undisputed knowledge of Layton's
union activity, the conclusion is unavoidable that
Respondent's restriction of Layton to the mainte-
nance shop, with its small employee complement,
was intended to discourage Layton's union activities.
I similarly view Respondent's sudden change in
work assignment procedures of all maintenance em-
ployees on February 6, 1975. Particularly suspect is
the time at which this change was instituted in that
the Union filed a representation petition on January
15, 1975, only 3 weeks before. The record does not
demonstrate any increase in the number of com-
plaints involving maintenance employees prior to
February 6. It is significant, however, that while the
change in the maintenance shop's operation affected
only 10 employees, at least I of those employees had
played a substantial role in the Union's organiza-
tional activity throughout the plant. Respondent
does not dispute that Layton personally had ob-
tained the signatures of about 40 other employees on
union authorization cards.
That Respondent's restriction of the maintenance
employees was a pretext for its campaign to dissuade
unionization was further suggested by the warning
received by Layton on February 11. Attempting to
comply with Foreman Langston's instructions of
February 6, 1976,21 Layton told Supervisor Calloway
that he could not talk to her because he was given
"direct orders from [his] supervisor, not to talk to
anyone" while on a job assignment. Nevertheless, on
the next day, Langston took Layton to task for being
almost insubordinate in his conversation with Callo-
way and warned that "insubordination was a dis-
chargeable offense." Langston further apprised Lay-
ton that he "had better not let this happen again"
because disciplinary action would be taken.22
In my view, this warning constitutes further evi-
dence of Respondent's attempt to discourage
Layton's union activities. It was common knowledge,
as well recognized by the employees with whom Lay-
ton worked,23 that Respondent was engaged in a
campaign of harassment against Layton because of
21 According to employee Kinkennon , Langston told the maintenance
employees that "he felt like we weren ' t working properly, that we were to
stay in the shop unless we were directed to do otherwise [and] when we
were assigned to a job to go directly to the job and return without stopping
to speak to anyone, and not to do anything anyone told us to do except
himself or Dave Stanbaugh " Layton similarly recalled Langston's instruc-
tions
22 This incident was written up and placed in Layton's personnel file
23 On February 12, 1976, an incident concerning employee Kinkennon
was "written up" by Foreman Langston According to Kinkennon, he and
employee Taylor had refused initially to perform a job assignment because
the assignment was not approved by Foreman Langston or Engineer Stan-
baugh When Taylor and Kinkennon were called into Langston ' s office,
Langston told the employees that he was ashamed of them and they were
"playing games with him " Kinkennon replied that he thought the supervi-
sors were playing games with the maintenance crew "because of Tommy
Layton's union activities"
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his union activities.24 This unlawful campaign, which
began immediately after the Union's first organiza-
tion meeting, gained intensity after the Union filed
its petition and eventually affected all maintenance
employees. In these circumstances, my colleagues'
failure to remove the written memorandum from
Layton's personnel file and to order that Respondent
not restrict the work area of Layton and other main-
tenance employees because of union activities is, to
say the least, unfortunate.
Accordingly, I dissent.
24 Further evidence of Respondent's harassment of Layton because of
Layton's union activity is the November 26, 1975, warning issued to Layton
for allegedly going to the nurse 's office without a pass Layton had received
permission from his supervisor to go to the timekeeper's office to get a
stencil machine Finding the timekeeper out, Layton stopped by the nurse's
office and asked if she had such a machine Although Respondent has a
policy instructing employees not to go to the nurse's office without a pass, it
would have been absurd for Layton to return to the maintenance shop just
to get permission to ask the nurse if she had a stencil machine when the
nurse 's office is only a couple of doors from the timekeeper's office
The Administrative Law Judge, though acknowledging that the record
"strongly suggests" that Layton's violation of the company rule was not the
real reason for issuance of the warning, concluded that the evidence was
insufficient to establish the unlawfulness of this action . Contrary to the
Administrative Law Judge, I would find that this warning was issued for an
unlawful purpose in violation of Sec 8(a)(l)
DECISION
FRANK H. ITKIN, Administrative Law Judge: This case
was heard before me on February 24 and 25, 1976, in Ab-
erdeen, Mississippi. An unfair labor practice charge was
filed by the Union on November 21, 1975. An amended
charge was filed on December 29, 1975. An unfair labor
practice complaint issued on January 5, 1976. The com-
plaint was later amended at the hearing. The issues pre-
sented are whether Respondent Company violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, by interrogating employee Thomas Layton con-
cerning his union membership and interests; by telling em-
ployee Layton that certain employees had been discharged
because of their unauthorized use of employee timecards
when in fact said employees had been discharged because
they engaged in union or other protected concerted activi-
ties; by issuing a warning to employee Layton and threat-
ening to discharge him because of his union or protected
concerted activities; by restricting employee Layton to his
immediate work area because of his union or protected
concerted activities; by telling employee Layton that he
was being restricted to his own work area in order to keep
him away from other employees; by further warning em-
ployee Layton because of his union or protected concerted
activities; by telling employee Layton that if the Union
were voted in the employees would lose all of their vaca-
tion pay, holidays, and insurance benefits and that negotia-
tions with the Union would have to start from scratch; by
changing the job assignment procedure for the Company's
maintenance employees and restricting the maintenance
employees to their immediate work area because of em-
ployee union or protected concerted activities; and by issu-
Ing a further warning to employee Layton because of his
union or protected concerted activities.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
counsel, I make the following findings of fact and conclu-
sions of law.
FINDINGS OF FACT
Respondent Company has an office and plant in Vero-
na, Mississippi, where it is engaged in the manufacture of
portable electric heaters. During the prior 12 months, Re-
spondent Company purchased and received at its Verona
plant products valued in excess of $50,000 directly from
outside the State. During this same period, Respondent
Company sold and shipped from its Verona plant products
valued in excess of $50,000 directly to locations outside the
State. I find and conclude, as stipulated, that Respondent
Company is an employer engaged in commerce within the
meaning of Section 2(5) of the Act. Further, it is undisput-
ed that at all times material to this case George Hamilton
has been Respondent Company's vice president of manu-
facturing and plant manager; Keith Perkins has been per-
sonnel manager; Stanley Sanders has been plant engineer;
William Langston has been maintenance foreman; and
Roland (Mickey) Young has been assistant personnel man-
ager. I find and conclude, as stipulated, that Hamilton,
Perkins, Sanders, Langston, and Young were at all times
material to this case agents and supervisors of Respondent
Company within the meaning of Section 2(11) of the Act.
Employee Thomas Layton testified that he has worked
for Respondent Company as a maintenance mechanic
since May 1974. Layton first engaged in union activities
during late October 1975. Layton went to a union meeting
on October 23, 1975, at the office of the Industrial Union
Department in Tupelo where, as Layton testified, "we dis-
cussed [the] possibilities of organizing ourselves into a
Union. .. " Layton and the other employees who attend-
ed this meeting signed union authorization cards. Layton
and the other employees were also given additional union
authorization cards "to take with us to get other employees
within the plant to sign...." Layton thereafter secured
the signatures of some 35 to 40 of his fellow employees on
union authorization cards. Layton obtained these signa-
tures "within the plant at breaktime or lunchtime or before
and after work"; he also "made home visits to employees
and got cards signed there."
Layton testified that on October 24, 1975, Plant Engi-
neer Sanders engaged in the following conversation with
him at work.
Well, on Friday morning, October 24 . . . I had
punched in and went into the break room, got a cup of
coffee I went into the maintenance and plant
engineer's office. Stan Sanders was there. And I spoke
to him and said, "How are you doing, boss?" And he
said, "Just fine". Then he asked me ... "How did
your meeting go last night?" And I told him it went
pretty well, that we had a nice turnout. He told me
that . . . I knew my rights on what I could do and
things of this nature and said he would support my
ARVIN INDUSTRIES, INC
rights or something to this nature; that he would en-
force my rights so long as I didn't break the law, you
know . . . say like get a card signed on Company
time.
Layton disclosed to Sanders that the union representative
"had given us additional cards after I had signed mine
; [Sanders] asked . . to see one of the cards .. . .
Layton testified:
He [Sanders] asked me did I mind him looking at it. I
said, "No sir, I don't care". I handed him one. He
looked at it, turned it over and looked at the back. He
handed it back to me.
On November 11, 1975, employee Layton engaged in the
following activities in the plant. According to Layton:
At 9:20, the morning break whistle blowed. I was
working on the roller sander in the motor department
in the mold room when this whistle blowed. It was
time for me to take a break. So, I went from the mold
room, which is about . . . 20 or 25 feet away from the
first [time] clock. And I went to the card racks and
proceeded in counting the spaces within the timecard
rack. . . . -I counted the empty spaces in this rack
.... And I got an estimate of how many hourly em-
ployees was at that clock. I went from there to clock
one . . . and counted the empty spaces . . . with the
exception of one timecard rack which is office clerical
timecards and got an estimate there. I went to the
clock over at the paint room which is maybe 120 feet
away from the second clock, and counted those cards,
and then turned around and went back to the fourth
clock and counted the empty spaces on those racks
and got a pretty close estimate on how many hourly
employees we had in the plant itself. . . . Whenever
I'd leave a timeclock there, I had a piece of paper in
one hand and a pencil in the other hand. I'd write the
number of cards down or estimated number of cards
that was at that timeclock on a piece of paper. And
whenever I got through with all four clocks, I totaled it
up and found it to be something like 474... .
Layton then finished his "break." Layton explained that he
was "getting this information" in order "to help establish
what a majority of the employees in the plant would be
About 9 a.m. on the following day, November 12, Plant
Engineer Sanders instructed employee Layton "that [Lay-
ton] had to go to the office with him." Sanders and Layton
went to Vice President and Plant Manager Hamilton's of-
fice. According to Layton:
George [Hamilton] told me that he had been told by
some reliable witnesses that I had been tampering with
other people's timecards in the rack the day before.
And he said that his witnesses said I had picked the
cards up out of the rack and was looking at them and
then putting them back in the rack and writing some-
thing down on a piece of paper. I denied this. I told
i According to Layton, he finished counting the cards about 9.28 a in His
break ended at 9 30 a m.
931
him I hadn't touched a card in the rack and that I did
count the cards. And he asked me what was my reason
for counting the cards. And I told him that I was curi-
ous as to the number of hourly employees in the plant.
And he turned around and said that, "You're aware
that we have terminated people in the past for punch-
ing other employees' timecards in and out". And I
asked him to-if he would bring his witnesses in and
let them tell me face to face that I was pulling the
timecards out of the rack and tampering with them in
any way. And he said he didn't have to, that his wit-
nesses were reliable .. .
Layton testified that during this meeting, Vice President
and Plant Manager Hamilton "brought up the incident
where I had been talked to back in July 1975 by supervisor,
Ernest Langston, about what he called sticking my nose in
other departmental business ...." Further, Hamilton
warned Layton "that tampering with employees' timecards
was grounds for termination and that he didn't want to
hear of it again; and if I was caught around the timecard
racks counting cards or tampering with them in any way,
that [there] would be disciplinary action taken against me;
and if necessary, [I would] be terminated." In addition, as
Layton recalled:
He [Hamilton] also said, from that day forth, when-
ever I come into work in_the morning, that he wanted
me to go directly to the maintenance shop and wait on
a job assignment; and whenever I was given an assign-
ment, to go to that job, do it, turn around and come
right back to the shop and wait on another one and
not to speak to anyone to and from the shop.
Layton questioned Hamilton about this instruction. Hamil-
ton explained: "I don't want you stopping and talking to
people on the job." Z
Employee Layton testified that he did not receive any
job assignments for some 4 to 5 days following the Novem-
ber 12 meeting in Vice President Hamilton's office. How-
ever, the other maintenance employees "were working job
assignments" during this same period. Layton recalled:
Well [Foreman] Langston would come out in the
morning, say a few minutes after 7 o'clock, when we
would all be standing in the shop. And he would give
all the other fellows a job to go to or a work order.
And they'd cut out and go do it, you know. And, I
would be standing right there in the bunch and he
wouldn't tell me nothing.
Layton explained that "there was available" work for him
during these four to five days. The other maintenance em-
ployees were given assignments and there were "some five
to six clipboards hanging on the wall in the maintenance
office that has maintenance backlog fobs on it ... .
About 4 to 5 days after the discussion in Hamilton's
office, Langston assigned employee Layton the job of
building an electrical control panel in the maintenance
shop. Layton testified:
2
During this discussion, Layton asked Hamilton, "would this be written
up and put in my file " Hamilton said that the discussion would be "written
up" Layton asked for a copy of the "statement that would be put in my
personnel folder" Hamilton refused
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The morning that Ernest [Langston] gave me the con-
trol panel to build in the maintenance shop there, he
made the comment that he had to keep me in the shop
and keep me out of trouble , was the way he put it.
And he kind of laughed about it.
According to Layton , Plant Engineer Sanders was also
present during this conversation.
Thereafter, on November 26, Layton was in the process
of completing his work on the electrical control panel. He
needed a "stencil machine ." Layton testified:
I went to Stan Sanders and asked his permission to go
to the timekeeper's office [because ] I know she had a
hand stencil . Mr. Sanders gave me permission to go
there . And I went over there and Mary Cole , the time-
keeper, was not there . . . . So I stuck my head in Jean
Lamons ' office , the plant nurse, and asked her did she
have a stencil machine . . . [and] she said no, that if I
run across one or could get Mary's , to write her name
for her twice for her scissors or stapler machine... .
And I told her I would.
Layton recalled that as he was leaving Lamon's office, she
"called me back ." They discussed , among other things,
what he "bought [his] little girl for Christmas ." Layton
later returned to the maintenance shop.
Later that same day, Plant Engineer Sanders apprised
Layton that he "had been in the nurse 's office without a
pass." According to Layton, Plant Engineer Sanders "said
that he had to mention it to [Layton] and the case was
closed. There wouldn't be anything else said about it."
Layton "tried to explain" but Sanders stated : "It's over
with . . . [and] nothing will ever be said about it again."
Layton requested permission to speak with Personnel
Manager Perkins . Layton went to Perkins' office. Also
present in the office was Vice President Hamilton . Layton
related this "incident" to Perkins and "asked" if this "inci-
dent" would be "written up in my personnel folder." Per-
kins said "that it would." Layton "told Perkins at that time
... all of the supervision were riding [him] just a little bit
rough because of [his] Union activities ." Perkins made no
comment . Hamilton responded : "What you do in regard to
that is yv-,r business . . . . You've got the legal right to
participate in it if this is what you feel you have to do .. .
and he [Hamilton] would not interfere with my legal rights,
but also, the Company had rights " Layton returned to
work.3
Employee Layton testified that on February 4, 1976, he
and coemployee James Kinkennon were working "on the
plating room hoist ." Production Manager Brad Scott ap-
proached the employees , "checking on how long the thing
[hoist] would be down." At the time, according to Layton:
I [Layton] asked or Jim [Kinkennon] asked Brad
[Scott] . . if and when the Union was voted in, that
we would lose any of our holidays or vacations or
insurance benefits or go back to minimum wage. And
3 On January 15, 1976 , the Charging Party Union filed a representation
petition in Case 26-RC-5190 , seeking to represent all production and main-
tenance employees employed at Respondent's Verona plant
Brad Scott told Jim and I both that he didn't know,
that we would have to go to personnel to find that out.
Later that evening , Layton stated to Assistant Personnel
Manager Young, while walking to the plant exit:
. .. there has been discussion in the plant that if the
Union is voted in, that we would go back to the mini-
mum wage and lose all of our holidays, all of our va-
cation and all of our insurance benefits , and we would
have to start from scratch and go from there with ne-
gotiations.
According to Layton, Assistant Personnel Manager Young
agreed that "this would occur."
Thereafter, on or about February 6, as Layton further
testified , Foreman Langston called a meeting of the main-
tenance employees . At this meeting:
[Langston ] told us . . . he had been getting complaints
from other departmental heads that we were spending
too much time in their departments . And he said from
that day forth that we was going to stop going into
other departments without a work order. He said from
now on we was going to work like he said to work and
work with who he said and not like how we wanted to
. . .. And he also told us that we would be given job
assignments and he would do the assigning of the job.
According to Layton, Foreman Langston "called"
Layton's name and the names of two other employees and
said:
that he [Langston] didn' t want to catch them in his
office again . . . he said we had been in there several
times whenever he came back , sitting down, not doing
nothing. So he told us that this would all cease. He
didn' t want any of us in his office touching any papers
on his desk or anything of this nature.
Foreman Langston apprised the maintenance employees:
. .. there had been too much time spent in other de-
partments stopping and talking to employees . . . it
was going to cease . . . And he said if he assigned us a
job, he meant for us to go to that job and be on that
job. And he said under no circumstances will you
leave that job unless I [Langston ] or [Plant Engineer]
Dave Stanbaugh tells you to leave the job. And he told
us not to do any work that he or Dave Stanbaugh .. .
didn' t assign to us . . . .
Subsequently, about Febraury 10, employee Layton was
assigned to repair a conveyor chain in the paint depart-
ment . Layton was later assigned the job of checking "the
dual head tapping machine in the thermostat department."
There, Supervisor Shirley Calloway approached Layton.
Calloway said:
"Tommy, do you know why the tapping head . . .
won't work?" And I [Layton] told her . . . "Shirley, I
can't talk to you. I have been given strict orders , direct
orders from my supervisor , not to talk to anyone while
we was on the job assignment."
Layton recalled that Calloway "got kind of hot." She criti-
cized the Company as "too cheap to buy any taps ... .
ARVIN INDUSTRIES, INC.
Layton replied: "Well Shirley, that's none of my business,"
Layton continued with his job.
On the next day, about February 11, Foreman Langston
assembled the maintenance employees. Employee Layton
recalled that:
[Langston] told us that we had misunderstood him
and that if a supervisor came up and ask[ed] us a ques-
tion, we was supposed to answer it. And he told us
that it seemed . . . most of us or all of us had misun-
derstood what he had said. So by this, he [Langston]
gives us completely opposite statements, that we are
supposed to talk to supervisors or anybody that asked
us a question now.
Later that same day, Foreman Langston took employee
Layton to his office. There, Langston told Layton that:
Keith Perkins had informed him [Langston] that I
[Layton] was almost insubordinate in my conversation
with Shirley Calloway and insubordination was a dis-
chargeable offense. And he [Perkins] sent word that I
had better not let this happen again because discipli-
nary action would be taken if it occurred again.
Plant Engineer Stanbaugh was also present. Stanbaugh was
taking "notes" during the conversation. Layton asked
Stanbaugh, . . . would this be written up." Stanbaugh said
that it would. Layton asked for a copy of the "statement"
or notes and Stanbaugh refused. Stanbaugh asked Layton
to sign "the statement." Layton refused.
Employee James Kinkennon testified that he is em-
ployed by the Company as a maintenance electrician and
his immediate supervisor is Foreman Langston. Kinken-
non recalled that on February 6, 1976, Foreman Langston
instructed all the maintenance employees "to stay in the
maintenance shop unless [they] were instructed to do
otherwise." Employee Kinkennon explained:
Ernest [Langston] said that he felt like we weren't
working properly, that we were to stay in the shop
unless we were directed to do otherwise, to not leaf
through any more work requests on his desk, when we
were assigned to a job to go directly to the job and
return without stopping to speak to anyone, and not to
do anything anyone told us to do except himself
[Langston] or Dave Stanbaugh.
And, as employee Kinkennon recalled,
... prior to this time we were free to go about the
plant and observe machinery and equipment that may
possibly be malfunctioning. We were free, if a supervi-
sor came to us and asked us, to use our own judgment
as to whether or not we were to leave the shop and go
ahead and repair it without going through the proper
channels ... .
Following this meeting on February 6, Supervisor Bill
Blevins entered the maintenance department when Lang-
ston and Stanbaugh were absent. Blevins asked mainte-
nance employee Bob Taylor "to go fix a paint fan ... .
Employee Taylor refused. Taylor explained "that he
couldn't do it." Later, Production Manager Bradley Scott
entered the maintenance department with Supervisor Blev-
933
ins and asked employee Kinkennon, "was I [Kinkennon]
going to go up to the paint room and fix the paint exhaust
fan." Kinkennon refused, explaining that Foreman Lang-
ston "had not told [him] to do so." Production Manager
Scott then gave Kinkennon "a direct order" to repair the
fan. Kinkennon complied with the order. Thereafter, when
Foreman Langston arnved at work, he assured Kinkennon
that Kinkennon was "doing a good job"; the employee did
what Langston "told [him] to do"; and "there's no prob-
lem."
Later that same day, employees Taylor and Kinkennon
were called into the maintenance office. Present were
Langston and Stanbaugh. According to Kinkennon:
[Langston] proceeded to tell us that he was ashamed
and surpnsed that we had not taken the initiative to go
ahead and repair the paint fan because as we well
knew it had to be repaired, which was true.
Kinkennon responded that he, Langston, "had precluded
any initiative on our part as far as taking charge, using our
own judgment, in repairing machinery." Langston stated
that there were "exceptions" and "we would have to use
our own judgment." Langston "said that he felt we [the
employees] were playing games with him about holding
him to the letter of his instructions." Kinkennon replied
that he felt "both of them were playing games with us . . .
the maintenance crew, because of Tommy Layton's Union
activities ...." Stanbaugh said "that's not the way it is."
Kinkennon asked "if this would be written up and put in
my file." Langston said "no." 4
Jean Lamons testified that she is employed by Respon-
dent Company as the first aid and insurance administrator;
at approximately 12:35 p.m. on November 11, 1975, she
"saw a boy at the timecard rack looking at the timecards";
she identified this employee as Layton; employee Layton
was "flipping up timecards"; "as [she] came back to [her]
office [she] jotted down notes" concerning what she had
observed. She subsequently gave her "note" concerning
this incident to Assistant Personnel Manager Young. La-
mons made no copy of her "note" and the original which
she turned over to Young was later thrown away.5
4 Employee Kinkennon explained that in the past, " it was not un-
common for [him ] to stop and pass off some amenities with someone when
I passed " in the plant Company supervisors were present during such
conversations and in the past never instructed Kinkennon not to talk to
production employees in such a manner Kinkennon recalled that other
maintenance employees would similarly talk with production workers while
in the plant Kinkennon further testified that for a period of time prior to
February 6 employee Layton spent more work time in the shop than other
maintenance employees, "we would kid him about the trouble that his
Union activities got him in and that sort of thing ", and the "trouble"
was Layton "being restricted to the maintenance shop " Kinkennon testified
that when Layton was working on the electrical panel in the shop , there was
other work available in the plant and a "backlog" Stanbaugh did not testi-
fy
s On cross -examination , Lamons testified that she wrote a "second note"
concerning Layton which she gave to management This "second note,"
dated November 25, 1975 , pertains to Layton's visit to her office on Novem-
ber 25 See G C Exh 5 Lamons further testified that on November 11, "as
I came out of the break area, I stopped and got some copy papers and as I
went around the corner , I just saw [Layton ] moving the cards up with his
fingers out of the slot", Layton had a pad in his hand, and she then went to
the "copy machine" and later returned to her office . In her prehearing
Continued
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Hamilton testified that he was employed by Re-
spondent Company as vice president of manufacturing and
plant manager until about February 20, 1976. Hamilton
identified a notice, dated June 6, 1975, which was then
posted in the plant. This notice pertains to "First Aid Pas-
ses" and provides, inter a/ia, that "too many employees
... are wandering out of their departments at all hours of
the day and going to the nurse's office for reasons that are
not legitimate"; that "employees who need to see the plant
nurse for any reason must get permission from their super-
visor and must have a first aid pass filled out by their su-
pervisor before going to the nurse's office"; that employees
"without first aid passes will not be allowed in the First
Aid Office at any time"; and that employees "should give
the first aid pass to the nurse and she will determine wheth-
er you should return to work, be sent home or be sent to
the doctor or the hospital...." See Respondent's Exhibit
4.
Hamilton also identified Respondent's Exhibit 5 as his
longhand memorandum of his conversation with employee
Layton on November 12, 1975. This memorandum, which
became a part of Layton's "personnel folder," refers to the
November 11 timecard rack incident. The memorandum
recites , inter alia:
I [Hamilton] said you [Layton] have been warned in
the past about being out of your work area wandering
around the plant interfering with others while they are
trying to work. As a matter of fact on 7-24-75 you
were warned about not doing your job, getting into
other people's affairs when not his business and both-
ering other people when they are working. I [Hamil-
ton] said we will not tolerate you not doing your job,
handling others' timecards or wandering around the
plant.
The memorandum recites that Hamilton warned Layton
that "another occasion of his touching or handling other
people's timecards or activities of this kind would lead to
his being discharged .. ."; Hamilton "pointed out that
others had been discharged for violations of timecard rules
and he would be also"; and during this meeting Layton
denied "touching" the cards but admitted "just counting"
them. In addition, the memorandum recites:
I [Hamilton] warned him [Layton] he was to return to
his work area (Maint. Dept.) for reassignment after he
completed each job and not to be wandering around
the plant getting into other [people's] work areas while
they are working, and going through the timecard
racks.
Further, according to this memorandum, Hamilton ex-
plained to Layton:
. .. stopping and talking to people while they are
working in their work place interferes with them and
our operation. You have the right to talk to people
during break or lunch time and as long as people did
not stop working.
affidavit, Lamons stated "After seeing Tommy flipping up the timecards I
went directly to the first aid station and I scribbled a note about what I seen
Tommy do.
Hamilton testified that shortly prior to meeting with em-
ployee Layton on November 12 he reviewed Layton's per-
sonnel file. This file contained a memorandum dated July
24, 1975, signed by Plant Engineer Sanders and Foreman
Langston (Resp. Exh. 7) and a memorandum dated Sep-
tember 2, 1975, signed by Foreman Langston (Resp. Exh.
8). Respondent's Exhibit 7 refers to, inter a/ia, employee
Layton "roaming about the building, chatting with em-
ployees, and imposing himself in business not his own."
Plant Engineer Sanders, who signed this memorandum
with Foreman Lanston, is no longer employed by the Com-
pany and did not testify. Respondent's Exhibit 8 recites:
Tommy was told 9-2-75 that there would be no wait-
ing at the clock and that if it continued, action would
be taken to stop it.6
In addition, Hamilton testified that Respondent Compa-
ny has a "policy" concerning "tampering with timecards."
Hamilton explained-
[The policy] is put forth in the employee orientation
sessions by the personnel department in which em-
ployees are instructed that ringing out someone else's
timecard or ringing it in or tampering with timecards
is considered a serious offense which could lead to
disciplinary action.
Hamilton asserted that "notices" concerning this "policy"
were posted at the plant during late 1974 or early 1975.
Hamilton, however, was unable to locate any such notices.
Hamilton recalled that the Company had "three employees
terminated for violation of the timecard rules; two female
employees were terminated for ringing out other timecards
[and] one was terminated for falsifying a timecard." 7
Hamilton explained that the Company "consider[ s] tam-
pering with or handling timecards of other employees to be
a serious offense", the employees "are so instructed in or-
ientation that it is serious offense to tamper with or handle
other people's timecards.... . Hamilton considered
Layton's conduct to be a "serious offense" because:
One was [Layton] being . . . at the timecard rack
when he should be working, which he had been prior
warned about. . . . And the second thing was the
handling of timecards.
And, as Hamilton noted, between 12.30 and 1 p.m., there
are not break periods in the plant for employees.
Paul Byrge, employed by the Company as a tool engi-
neer, testified that on November 11, 1975, while
6 Hamilton also identified Resp Exh 6 as "a handwritten document dat-
ed November 11, 1975, written by Sanders regarding [his] conversation with
Tommy Layton" concerning the timecard rack incident Hamilton received
Resp Exh 6 from Sanders "on the morning of November 12 " Hamilton
testified that, in addition, he "had two notes , one note left on [his] desk from
the security guard, Earl Repult, [and he] was subsequently given a note
submitted by Jean Lamons the plant nurse " These two notes (like
Resp Exh 6) pertained to the November I I incident at the timecard rack
Hamilton acknowledged that both of these notes were later thrown away
The security guard, Repult, did not testify
The "two female employees" are Georgia Starcher and Norma Gray
Their terminations were the subject of a settlement agreement in Board
Case 26-CA-5423 and notice posted pursuant to the agreement See G C
Exhs 2 and 3 1 note that the settlement agreement recites that "the Em-
ployer does not admit that it has violated" the Act by executing the agree-
ment
ARVIN INDUSTRIES, INC. 935
... coming back from lunch, I observed Tommy
[Layton] at the timeclock in the pressroom counting
cards.
Byrge's lunch period ended at 12:30 p.m. Byrge observed
that Layton's fingers were "over the compartments of the
different timecaras." Byrge, however, did not "actually see
[Layton] pick or lift a timecard out of the timecard rack."
Byrge subsequently spoke with Assistant Personnel Man-
ager Young about this incident. Byrge testified: "I just told
him I saw Tommy counting timecards in the timecard rack
at the press department." On cross-examination, Byrge ac-
knowledged that he "did not see [Layton] touching the
timecards." Layton "was running his fingers up the rack."
Mickey Young testified that he is employed by the Com-
pany as assistant personnel manager; on November 11,
1975, he received "a written report from our plant nurse,
Jean Lamons, and also received a verbal report from one
of our engineers, Paul Byrge," concerning employee
Layton's activities at the timecard racks; he received La-
mons' report about 1 p.m. that day; and he received
Byrge's report about 2 to 2:30 p.m. that day. Young ac-
knowledged that the Company no longer has Lamons'
written report concerning this incident. He recalled that
her report stated that "she had seen Tommy Layton han-
dling timecards or pointing at-counting or something
.. " Young recalled that Byrge stated "that he was re-
turning from his lunch in the break area . . . that he took
lunch from 11:30 to 12:30 . . . he was returning from the
break area, [and] as he passed the press timeclock, he ob-
served Tommy Layton running his fingers up and down
the timecards." On cross-examination, Young recalled that
Byrge "reported to me that [Layton] was running his fin-
gers up and down the timecards like he was counting
them." Young acknowledged that Byrge did not state that
Layton "was actually touching the cards."
Young further testified that "about quitting time" on
February 4, 1976, employee Layton spoke with him in the
plant. Layton initiated the conversation. Layton said to
Young "that he had heard that if the Union was voted in,
that all wages and benefits would go to zero." Young, as he
testified, told Layton that he "really didn't know the an-
swer to that question" and Layton "should check with
Keith Perkins on it." Layton said that "he would like to
have an answer on it." Perkins was not in the plant. And,
as Young testified:
I [Young] told him [Layton] that it was my under-
standing that if the Union was voted in, that the Com-
pany representatives would sit down with the Union
representatives and would negotiate a contract. I also
told him that wages and benefits would be two of the
items that would be negotiated. And I also said that
the Company could start negotiating wages from the
minimum wage and also that the Company could start
negotiating benefits from zero.
Layton replied that "he thought that the National Labor
Relations Board guaranteed that nothing could be taken
away from you, from what you already had." Young then
stated:
National Labor Relations Board doesn't have any-
thing to do with the negotiations of wages and bene-
fits. And I also said that the Wage & Hour Adminis-
tration is the agency that deals with wages. And all
they guarantee is that a factory such as ours pay the
minimum wage which is $2.30 per hour.
Layton asked: "You mean we could end up with less than
we have now." Young agreed that "this was a possibility."
In addition, Young testified that the Company has a
timecard "policy"; that this "policy" is communicated to
employees during their orientation; and that they are told:
. .. they should never punch any other employee's
timecard and should never allow any other employee
to punch their timecard. They are told that they
should never handle anybody else's timecard. And
they are told that if any changes need to be made on
their timecard, that it must be made and initialed by a
supervisor.
Young testified that a notice stating this "policy" was post-
ed during late 1974 or early 1975 and that it was "left up"
for several months. Young was unable to find any copies of
this notice. Young further recalled that the notice also stat-
ed that violation of this policy would make an employee
subject to immediate discharge." Young asserted that em-
ployees Georgia Starcher, Norma Gray, and Jerome Ad-
ams were terminated for violating this "policy."
Ernest Langston testified that he is employed by the
Company as maintenance foreman; there are some 10
maintenance employees in his department including em-
ployee Layton; and Respondent's Exhibit 7 is a memoran-
dum signed by Langston and former Plant Engineer San-
ders on July 24, 1975, concerning Layton. This
memorandum recited, inter alia, that:
For the past several months it has been apparent that
Tommy Layton, clock 354, has had an attitude that he
could do pretty much as he pleased. He wouldn't re-
spond to Ernest Langston's instructions as we thought
he should and spent considerable time roaming
around the building chatting with employees and im-
posing himself in business not his own.
According to Langston, employee Layton was then warned
"to stay uninvolved with other department's problems . . .
to do his job and let everyone else try to do theirs and not
to be roaming around bothering production employees out
in the plant." In addition, Langston identified Respon-
dent's Exhibit 8 as a memorandum prepared on September
2, 1975, concerning employee Layton "waiting at the
clock." 8 Langston testified that, except for the above,
"Tommy is a good employee, does good work, has vaned
skills and is a good maintenance man." Langston's "big-
gest problem" with employee Layton was his "hindering
[of] other people and getting involved in stuff that really
didn't concern him."
In addition, Langston testified that about late September
or early October 1975, he "began to receive more com-
plaints" about the "same things going on." According to
B Resp Exh 9, also dated September 2, 1975. concerns a similar warning
I [Young] told him [Layton] that to my knowledge the issued to employee Larry Satterwhite
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Langston, Supervisors Aubrey Farwell and Shirley Callo-
way "turned in several complaints." 9 As a result, Langston
and Sanders "discussed it and decided that it might be to
our advantage to keep [Layton] closer in the maintenance
department or in that area, that we might more closely
supervise [him] and see if we could keep from having the
problems that we had been having." ' Langston denied
telling Layton that he was being restricted to his work area
to keep him away from other employees. Langston did not
"recall" any 4 to 5 day period in November when he made
no assignments to employee Layton. Langston, however,
acknowledged that during October 1975 he told employee
Layton , while assigning him the job of building certain
electrical equipment , "I'll just let you do it ... and that
will keep you out of trouble." Langston acknowledged that
"at that time" employee Layton was the only employee
"restricted" to the maintenance department because of his
"conduct." tl
Langston identified Respondent's Exhibit 10 as the
memorandum of his conversation with employee Layton
on February 11, 1976, concerning Layton's conduct while
talking to Supervisor Calloway. This memorandum recites,
inter alia:
Ernest told Tommy [Layton] that during repair of tap-
per yesterday, Tommy was on the verge of insubordi-
nation in talking with Shirley Calloway. . . Tommy
said he understood he wasn't supposed to talk to su-
pervisors from last Friday's talk. He knows that he
should talk to supervisors after today's get together.
Langston also identified Respondent's Exhibit 11 as a
memorandum of his conversation with employees Taylor
and Kinkennon on February 12 concerning their reluc-
tance to perform work as requested by other supervisors.
This memorandum recites, inter alia:
I told them that I thought they were playing [ a] game
with me and that I thought they did not handle the
problem the way they should have.
Further, Langston testified that on or about February 1,
1976, "sometime after Stan Sanders left," Langston "held a
meeting with the maintenance men [and] changed [his]
method of making job assignments " According to Lang-
ston:
Well, the way we had been working, the boys at times
would be stopped by supervisors out in the plant and
9 Farwell and Calloway did not testify
10 Former Plant Engineer Sanders , as noted , did not testify
11 On cross-examination , Langston was asked "exactly" what employee
Layton had done in late September or early October which was the subject
of new complaints Langston answered "Principally the same thing , hinder-
ing people , being where he wasn't supposed to be " Langston could recall
"no real specific instance " Then , he cited an instance when Layton walked
around in another department "without safety glasses " No writeup was
issued for this incident Further , Langston acknowledged that Layton was
not sent out on jobs in the plant "as much as [he] normally had " about
mid-October 1975 Langston acknowledged telling Layton when he assigned
the employee the job of building the control panel
I'll let you build it to keep you out of trouble or something to that
effect
.. . they'd get . . involved in problems and I did not
know where they was at . . . . I changed the proce-
dure, that everything came through me so that I could
more closely know what was going on in my depart-
ment .. ..12
Keith Perkins testified that he is personnel manager for
Respondent Company; the Company has a timecard "poli-
cy"; this "policy" is explained to "all new employees on
their date of hire"; and the "policy" is, as follows:
. .. the timecard is the individual employee 's prop-
erty and that he is not to punch another employee's
timecard . He is responsible for his individual time-
card . He is not to punch another employee's timecard,
nor is he to let the other employee punch his timecard.
He is not to handle timecards . And . . . if there is
need for any correction on the timecard , it is to be
made by a supervisor and initialed by a supervisor.
This "policy" was posted at the plant during late 1974 or
early 1975. This posting also warned employees that "vio-
lation of said timecard rules would result in immediate dis-
charge ." In addition , as Perkins testified , Respondent
Company has a policy of "progressive discipline, the first
step being verbal conversation with the employee about the
particular problem, with the possibility of notes being
made by the supervisor of the conversation. . . . The sec-
ond step would be a warning by the employee's immediate
supervisor. . . . This would be put in writing with one
copy to the personnel department ... ." The "third step in
the progressive discipline [policy] would be a final warning
given by the personnel department." The "next step"
would be "layoff" or "discharge." Perkins explained:
Normal violations of Company rules, such as absen-
teeism [or] nonperformance , that sort of thing, would
go along the general rules. There are certain viola-
tions, such as fighting on the job, being intoxicated on
the job, insubordination, the violation of the timecard
rule-these would be grounds for immediate dis-
charge
Perkins testified that on July 24, 1975, employee Layton
received a "second stage" warning. And, on September 2,
Layton received a further warning for "wasting time at the
timeclock." Thereafter, on November 12, Perkins was ap-
prised by Assistant Personnel Manager Young of Nurse
Lamons' note concerning this incident . Perkins thereupon
"pulled" Layton's personnel folder, noting the prior write-
ups. Perkins then conferred with Vice President and Plant
Manager Hamilton. Hamilton told Perkins that "he too
had a note from guard Earl Repult" and had "received a
writeup from Stan Sanders " concerning the incident at the
timecard racks. Both Perkins and Hamilton decided that
"because of ... the possible violation of the timecard rule
[and] the fact that Layton had been previously warned
about killing time, . . . we felt the two things combined
were serious enough that we should have some conversa-
tion with Layton." Thereafter, a meeting was held attended
by Hamilton, Perkins, Sanders, and Layton . Perkins testi-
fied that Respondent's Exhibit 5, dated November 12 and
12 And see the testimony of employee Carl Leslie
ARVIN INDUSTRIES, INC.
signed by Hamilton, accurately states what transpired at
the November 12 meeting with Layton.
Perkins recalled that about November 25, 1975, employ-
ee Layton complained to him because he "had just re-
ceived or just had a discussion with his supervisor, Stan
Sanders, about being in the first aid room without a pass."
Perkins restated to Layton the Company's "policy" con-
cerning going to the nurse's office "without a pass." 13
Discussion
The testimony in this case, as detailed supra, is in large
part undisputed. There are, however, various conflicts in
testimony which are discussed below in connection with
each alleged violation.
A. The Interrogation of Employee Layton on October 24
Employee Layton's testimony concerning this incident is
uncontroverted. Layton credibly testified that he attended
his first union meeting with other employees on October
23. On the next day, October 24, Plant Engineer Sanders
questioned employee Layton at work: "How did your
meeting go last night?" Layton responded that "it went
pretty well . . . we had a nice turnout...." Layton re-
vealed to Sanders that the union representative "had given
us additional cards after [he] had signed" his union card.
Sanders asked Layton, "did [he] mind [Sanders] looking
at" a card. Layton responded: "No sir, I don't care" and
showed Sanders a union card. During this conversation,
Sanders apprised Layton that he, Layton "knew [his] rights
on what [he] could do" and Sanders "would enforce [his]
rights so long as [he] didn't break the law . . . like get a
card signed on Company time. . ."
There are some 200 or more production employees and
35 supervisors at Respondent Company's Verona plant.
There is no evidence of record of any other interrogations
or related conduct. Counsel for Respondent argues that the
evidence of record is "insufficient to establish unlawful in-
terrogation of Layton on October 24 such as to warrant a
finding of a violation of" Section 8(a)(1) of the Act "or the
issuance of a remedial order." Cf. Boston Cab Company,
Inc., 212 NLRB 560, fn. 2 (1974), and B. F. Goodrich Foot-
wear Company, 201 NLRB 353 (1973). However, as dis-
cussed below, Respondent Company thereafter confined
and warned employee Layton because of his union activi-
ties . And, as employee Kinkennon credibly testified, main-
13 Perkins also identified Resp Exhs 13(a) through (I) as writeups or
warnings contained in employee personnel files These wnteups or warnings
concern, inter aha, employees "talking" and "goofing off", returning late
from meals; not meeting production standards, "quitting early and loaf-
ing"; "engaging in idle conversation ", waiting at the timeclock before quit-
ting time, and "lingering in the washroom " Also see Resp Exhs 14 and 15
Further, Perkins explained that a "major offense," including a violation
of the Company's timecard policy, "called for immediate termination "
However, employee Layton was not terminated for this violation
because there was not sufficient evidence to say that he was
trying to punch a card or was going to manipulate the cards or
cheat the Company in anyway He was handling them and this was in
our [estimation] a certain amount of violation [Had] he been
punching cards, then it would have been immediate discharge instead
of a final warning
937
tenance employees "would kid [Layton] about the trouble
that his Union activities got him in...." Further, as dis-
cussed below, Respondent Company changed its job as-
signment procedures for its maintenance department per-
sonnel and restricted them because of employee union
activities. Under these circumstances and on the entire rec-
ord in this case, I find and conclude that Plant Engineer
Sanders' interrogation of employee Layton tended to inter-
fere with employee Section 7 rights in violation of Section
8(a)(1) of the Act and, to effectuate the purposes of the
Act, should be remedied.
B. The Incident at the Timecard Racks on November 11
Employee Layton testified that he counted timecards at
four racks during his morning break on November 11.
However, employee Byrge and Nurse Lamons place this
incident about 12:30 p.m. on that day when Layton was
not in fact on a break. I am persuaded on this record that
the testimony of Byrge and Lamons is more reliable in this
respect. Their testimony, as discussed supra, is substantiat-
ed in part by the testimony of Assistant Personnel Manag-
er Young. In addition, employee Layton claimed that he
did not touch timecards during this incident. Employee
Byrge observed that Layton's fingers were "over the com-
partments of the different timecards." Byrge did not see
Layton "lift a timecard out of the timecard rack" or
"touching the timecards." Nurse Lamons "saw [Layton's]
fingers moving them up" as she "passed by." I am persuad-
ed on this record that employee Layton, while counting the
cards at the timecard racks, actually touched and to some
extent handled various cards of other employees. And, as
Personnel Manager Perkins credibly testified, management
has a "policy," which has been related to its employees,
that employees are "not to handle timecards" of other per-
sonnel. Perkins' testimony in this respect is substantiated
by the testimony of Young and Hamilton. Consequently, I
find that on November I1 employee Layton was observed
at the timecard racks counting and handling timecards
when he was supposed to be working.
On the following morning, November 12, according to
the credible testimony of Vice President Hamilton and Per-
sonnel Director Perkins, employee Layton was brought to
the office. There, he was told:
. .. you have been warned in the past about being out
of your work area wandering around the plant inter-
fering with others while they are trying to work. As a
matter of fact on 7-24-75, you were warned about not
doing your job, getting into other people's affairs .. .
and bothering other people when they are working
14
Management warned employee Layton:
.. we will not tolerate you not doing your job, han-
dling others' timecards or wandering around the plant.
Management warned employee Layton that "stopping and
14 Layton had received such a warning on July 24, 1975 (Resp Exh 7)
He had received a further warning on September 2, 1975 "for waiting at the
clock" ( Resp Exh 8) Both of these warnings were issued before Layton
became involved in union activities
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talking to people while they are working in their work place
interferes with them and our operation." Management in-
structed employee Layton that "he was to return to his
work area . . . for reassignment after he completed each
job and not to be wandering around the plant getting into
other [people's] work areas while they are working and
going through the timecard racks." Management apprised
employee Layton that "other had been discharged for vio-
lations of timecard rules and he would be also." 15
On this record, I am not persuaded that management's
warnings and statements to employee Layton on Novem-
ber 12 tended to interfere with Layton's Section 7 rights or
were because of his union activities. In the context of
management's publicized policy pertaining to timecards
and the prior warnings issued to Layton long before he had
engaged in any union activities, I do not find that the
warnings and statements made to Layton on November 12
were coercive or unlawfully motivated.16
C. The Confinement and Restriction of Employee Layton
to the Maintenance Shop
Employee Layton testified that he was given no mainte-
nance assignments for some 4 to 5 days following his meet-
ing with Hamilton and Perkins on November 12. Foreman
Langston "would give all the other fellows a job to do
. . ;" however, employee Layton "would be standing
right there in the bunch and [Langston] wouldn't tell [him]
nothing." Employee Layton explained that there was then
a "backlog" of maintenance work to be done. Thereafter,
on or about November 16 or 17, Foreman Langston as-
signed employee Layton the job of building an electrical
control panel in the maintenance shop Foreman Langston
then,
... made the comment that he had to keep [Layton]
in the shop and keep [Layton] out of trouble... .
And he kind of laughed about it.
During this time, as employee Kinkennon testified, mainte-
nance employees "would kid" Layton "about the trouble
that his union activities got him in and that sort of thing."
Kinkennon also recalled that there was then a backlog of
maintenance work outside of the shop. Foreman Langston
acknowledged that Layton "is a good employee, does good
work, has vaned skills and is a good maintenance man."
Foreman Langston acknowledged that he and former
Plant Engineer Sanders "decided that it might be to our
advantage to keep [Layton] closer in the maintenance de-
partment or in that area; that we might more closely super-
15 Employee Layton's version of this discussion in the office differs in part
with the testimony of both Hamilton and Perkins f find that Resp Exh 5,
the memorandum of this meeting, more accurately reflects what was stated
in the office
16 General Counsel alleges in his complaint that Respondent violated Sec
8(a)(1) of the Act by telling employee Layton that certain employees had
been discharged because of their unauthorized use of employee timecards
when in fact said employees had been discharged because they engaged in
union or other protected concerted activities As stated, management had
terminated three employees assertedly for violating its rules pertaining to
timecards A settlement agreement was signed in Board Case 26-CA-5423
with respect to two of the discharged employees See G C Exhs 2 and 3
The settlement agreement contains a nonadmission clause and General
Counsel has not established that Respondent, in this case, has misstated its
reason for terminating the employees in a manner that would tend to inter-
fere with employee Sec 7 rights
vise [him] and see if we could keep from having the prob-
lems that we had been having." Foreman Langston ac-
knowledged telling employee Layton, when he assigned
Layton the job of working on the electrical control panel in
the shop, "that will keep you out of trouble." And, Fore-
man Langston acknowledged that "at that time" employee
Layton was the only employee "restricted" to the mainte-
nance shop because of his "conduct."
I am persuaded on this record that the testimony of em-
ployees Layton and Kinkennon, as recited above, is credi-
ble and trustworthy. Foreman Langston was asked if assig-
nments were withheld from employee Layton during a 4-
to 5-day period. Langston claimed that he could not "re-
call." Foreman Langston asserted that employee Layton
was limited to the maintenance shop in late September or
early October 1975. Langston "began to receive more
complaints" about Layton. However, employee Layton
was given no further warnings or writeups for these alleged
new complaints. I do not credit this assertion of Langston.
I find instead that Langston and Sanders in fact withheld
job assignments from Layton and thereafter restricted him
to the maintenance shop because of the employee's union
activities. As the record shows, when management de-
termined that employee Layton was violating its work poli-
cies or rules, it promptly and directly warned him about
the particular violation. Here, Foreman Langston and
Plant Engineer Sanders issued no warnings to Layton but
instead confined and restricted him in such a way that em-
ployee Layton and his coworkers understood that Layton
was in "trouble" because of his "Union activities." I find
and conclude that this conduct was motivated at least in
part by a purpose to discourage employee Layton's known
union activities and was not for lawful business reasons as
claimed. I find and conclude that Respondent thereby vio-
lated Section 8(a)(1) and (3) of the Act.
D. The Warning Issued to Employee Layton Because He
Went to the Nurse's Office on November 26
Management has a policy, which is posted , instructing
employees not to go to the nurse's office without a pass.
Employee Layton testified that on November 26 he went to
the nurse 's office to borrow a stencil machine . He spoke
with the nurse and subsequently returned to his work sta-
tion , the maintenance department . Later that same day,
Plant Engineer Sanders warned employee Layton that he
had gone to the nurse 's office without a pass . Nurse La-
mons prepared a written note of the incident which was
turned over to the personnel department (See G .C. Exh. 5.)
Employee Layton went to Personnel Manager Perkins to
complain about this warning. Employee Layton asserted
that ". .. all of the supervisors were riding [him] just a
little bit rough because of [his] Union activities ." Vice Pres-
ident and Plant Manager Hamilton , who was then present,
responded : "What you do in regard to that is your business
.. You've got your legal right to participate in it if that
is what you feel you have to do . . . and he [Hamilton]
would not interfere with [Layton 's] legal rights , but also,
the Company had rights ." Personnel Manager Perkins re-
stated to employee Layton Management's policy concern-
ing visits to the nurse's office "without a pass."
The record in this case strongly suggests that employee
ARVIN INDUSTRIES , INC. 939
Layton 's violation of the Company 's policy requiring pas-
ses to go to the nurse 's office was not the real reason for the
issuance of this warning. However , General Counsel must
prove by sufficient credible proof that Respondent was un-
lawfully motivated when it issued employee Layton this
warning . Suspicion is not enough . Employees had been
warned against going to the nurse 's office without a pass.
And, employee Layton had been warned about wandering
about , talking to employees while working and wasting
worktime . These warnings , as stated , predate the union ac-
tivities of Layton . Accordingly , on the entire record, I find
and conclude that there is not sufficient credible evidence
to establish that this warning was in fact issued for an un-
lawful antiunion purpose as alleged.
E. Employee Layton 's Conversation with Assistant
Personnel Manager Young on February 4
Employee Layton and Assistant Personnel Manager
Young testified to a conversation which they had "about
quitting time" on February 4. This conversation was initi-
ated by employee Layton and pertained to the conse-
quences of unionization at the Verona plant . Employee
Layton 's brief recollection of this conversation differs from
Assistant Personnel Manager Young 's more complete ac-
count of the conversation . I find that Young 's testimony in
this respect is more accurate and reliable . Thus, as Young
credibly testified, Layton said " that he had heard that if
the Union was voted in, that all wages and benefits would
go to zero ." Young told Layton that he "really didn't know
the answer to that question" and Layton "should check
with Keith Perkins on it ." Layton said that "he would like
to have an answer on it." Perkins was not in the plant
And, as Young testified:
I [Young] told him [Layton ] that it was my under-
standing that if the Union was voted in, that the Com-
pany representatives would sit down with the Union
representatives and would negotiate a contract. I also
told him that wages and benefits would be two of the
items that would be negotiated . And I also said that
the Company could start negotiating wages from the
minimum wage and also that the Company could start
negotiating benefits from zero.
Layton replied that "he thought that the National Labor
Relations Board guaranteed that nothing could be taken
away from you , from what you already had." Young then
stated:
I [Young] told him [Layton ] that to my knowledge the
National Labor Relations Board doesn 't have any-
thing to do with the negotiations of wages and bene-
fits. And I also said that the Wage & Hour Adminis-
tration is the agency that deals with wages . And all
they guaranteed is that a factory such as ours pays the
minimum wage which is $2.30 per hour.
Layton asked : `You mean we could end up with less than
we have now ." Young agreed that "this was a possibility."
I find and conclude that , in the context of this particular
conversation , Assistant Personnel Manager Young's state-
ments to employee Layton did not violate Section 8(a)(1)
of the Act as alleged . Here , as in Stumpf Motor Company,
208 NLRB 431 (1971), Assistant Personnel Manager
Young "prefaced his remarks by saying that all benefits
would be negotiable if the Union won the election." And,
as the Board stated in Stumpf Motor Company, supra.
In that context , we do not find the statement to have
violated Section 8(a)(1) of the Act . The employer is
free to indicate to his employees what the possible re-
sult of bargaining may be... .
The credible evidence here does not support a finding that
Young's statements "could reasonably be taken by the em-
ployee as a threatened loss of benefits to be enacted unilat-
erally by the Employer as a reprisal for the employees hav-
ing selected the Union." (Ibid)
F. Foreman Langston Changes the Work Procedures for the
Maintenance Employees and Issues a Warning to Employee
Layton
As found supra, commencing on or about November 12,
Foreman Langston and Plant Engineer Sanders withheld
assignments from employee Layton and restricted him to
the maintenance shop area in an attempt to discourage
employee union activities On November 21, the initial un-
fair labor practice charge was filed in this case . On Decem-
ber 29 , an amended charge was filed . On January 5, the
complaint issued . And, on January 15, the Union filed a
representation petition seeking to represent Respondent
Company's production and maintenance employees.
About 3 weeks later, on February 6, Foreman Langston
assembled the maintenance employees and announced to
them changes in their work assignment procedures. As em-
ployee Layton testified:
[Langston ] told us about he had been getting comp-
laints from other department heads that we were
spending too much time in their departments. And he
said from that day forth that we was going to stop
going into other departments without a work order.
He said from now on we was going to work like he
said to work and work with who he said and not like
how we wanted to. . . . And he also told us that we
would be given job assignments and he would do the
assigning of the job
Foreman Langston specifically mentioned employee
Layton 's name and the names of two other employees and
said:
[Langston ] didn ' t want to catch them in his office
again . . . he said we had been in there several times
whenever he came back, sitting down , not doing noth-
ing. So he told us that this would all cease. He didn't
want any of us in his office touching any papers on his
desk or anything of this nature.
Further , Foreman Langston apprised the maintenance em-
ployees:
. . . there had been too much time spent in other de-
partments stopping and talking to employees .. it
was going to cease ... And he said if he assigned us
a job, he meant for us to go to that job and be on that
job. And he said under no circumstances will you
leave that job unless I [Langston ] or [Plant Engineer]
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dave Stanbaugh tells you to leave the job. And he told
us not to do any work that he or Dave Stanbaugh .. .
didn't assign to us. .. .
Employee Kinkennon corroborated employee Layton's tes-
timony. According to employee Kinkennon:
Ernest [Langston] said that he felt like we weren't
working properly, that we were to stay in the shop
unless we were directed to do otherwise, to not leaf
through any more work requests on his desk, when we
were assigned to a job to go directly to the job and
return without stopping to speak to anyone, and not to
do anything anyone told us to do except himself
[Langston] or Dave Stanbaugh.
And, as employee Kinkennon explained,
... prior to this time we were free to go about the
plant and observe machinery and equipment that may
possibly be malfunctioning. We were free, if a supervi-
sor came to us and asked us, to use our own judgment
as to whether or not we were to leave the shop and go
ahead and repair it without going through the proper
channels... .
I credit the above testimony of Layton and Kinkennon as
an accurate and complete account of what was said to the
employees on or about February 6.
Shortly thereafter, on or about February 10, employee
Layton was assigned a job in the thermostat department.
There, Supervisor Calloway approached employee Layton
to complain about the tapping head. Employee Layton
credibly testified that he told Supervisor Calloway: "Shir-
ley I can't talk to you. I have been given strict orders,
direct orders from my supervisor, not to talk to anyone
while we was on the assignments." Supervisor Calloway
became annoyed. And, on the next day, Foreman Lang-
ston warned employee Layton in the office that employee
Layton was "almost insubordinate in [his] conversation
with Shirley Calloway and i,_,ubordination was a dis-
chargeable offense." Foreman Langston warned employee
Layton that he "had better not let this happen again be-
cause disciplinary action would be taken if it occurred
again." The incident was written up and made a part of
employee Layton's personnel file. And, as detailed supra,
the maintenance employees were assembled and told by
Foreman Langston that the employees "had misunder-
stood him and that if a supervisor came up and asked us a
question, we was supposed to answer it."
Employee Kinkennon credibly related an incident con-
cernmg him following Foreman Langston's meeting on
February 6. Employees Taylor and Kinkennon initially re-
fused to perform a job assignment because the assignment
had not been approved by Foreman Langston or Engineer
Stanbaugh Foreman Langston at first apprised Kinken-
non that he "did what" he was "told . .. to do" and
"there's no problem." Later, however, employees Taylor
and Kinkennon were called into the office and told by
Foreman Langston that he was "ashamed of" them and
they were "playing games with him." Although Foreman
Langston assured employee Kinkennon that "this would
not be written up and put" in the employee's file, the inci-
dent was written up. (See Resp. Exh. 11.)
Respondent asserts that the above action taken by Fore-
man Langston was for legitimate business reasons. How-
ever, on this record, I find and conclude that Respondent
Company-in suddenly changing its work assignment pro-
cedures on February 6, restricting its maintenance employ-
ees and issuing a warning to employee Layton, who was
attempting to comply with Foreman Langston' s instruc-
tions-was acting in response to employee union activities.
I am persuaded here that plant efficiency or complaints by
other supervisors were not the real reasons for this change
in work procedures. Moreover, I am persuaded here that
employee Layton was not insubordinate when he spoke
with Supervisor Calloway. I find that the reason for this
action against Layton was Respondent's attempt to dis-
courage employee union activities, in violation of Section
8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Arvin Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the the Act.
2. Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent Company violated Section 8(a)(1) and (3)
of the Act by interrogating employee Layton about his
union membership and interests; withholding assignments
from and restricting employee Layton to the maintenance
shop area because of his union activities; changing the job
assignment procedures for its maintenance employees and
restricting their work area because of employee union ac-
tivities; and issuing a warning to employee Layton on or
about February 11 because of his union activities.
4. General Counsel has failed to establish by a prepon-
derance of the evidence that Respondent has committed
other violations of Section 8(a)(1) and (3) of the Act as
alleged.
5. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
To remedy the foregoing unfair labor practices, I will
direct that Respondent Company cease and desist from
engaging in the conduct found unlawful and from in any
other manner interfering with, restraining, or coercing its
employees in the exercise of their Section 7 rights. Further,
I will direct that Respondent remove and expunge from its
personnel files and records the writeup or memorandum of
the warning issued to the employee Layton on or about
February 11, 1976, because of his union activities. Respon-
dent will be directed to post the notice as attached.l"
[Recommended Order omitted from publication.]
" No affirmative remedial provision is recommended for rescission by
Respondent of the changes from past practice, found violative of Sec.
8(a)(1) and (3), that were effected by Respondent with respect to job assign-
ment procedures Such changes were found to have violated Sec 8(a)(1) and
(3) not because they were inherently unlawful, or even unreasonable, but
because they were effected in a coercive context and for an unlawful pur-
pose It is believed that this violation is adequately remedied by the cease-
and-desist provisions in the Order Cf White Sulpher Springs Company, 216
NLRB 721, (1974)