Bay Corrugated Container

National Labor Relations Board - Board Decisions

Feb 16, 1993

310 N.L.R.B. 450 (N.L.R.B. 1993)

450
310 NLRB No. 59
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel contends that the Respondent’s exceptions
and brief in support should be stricken because they do not comply
with Sec. 102.46(b) and (c) of the Board’s Rules and Regulations,
which provide, in relevant part, that the exceptions and brief shall
specifically refer to the questions of procedure, fact, law, or policy
to which exception is taken. The General Counsel argues that the
Respondent’s exceptions and brief in support do not specify which
factual findings allegedly render the judge’s conclusions invalid. We
find that the Respondent’s exceptions and brief in support substan-
tially conform with the pertinent sections of the Board’s Rules and
Regulations, and we therefore deny the General Counsel’s motion to
strike.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We correct the following errors in the judge’s decision: in sec.
III,F, par. 39, the judge states that Quality Control Manager Kris
Eggleston testified that the press machine may be shut down by
pressing a button, when it was Assistant Plant Manager Randy
McKinney who so testified; and in sec. III,F, par. 43, of the deci-
sion, we note that the correct cite for Adam Gibson’s application for
unemployment insurance is ‘‘Employer’s Ex. 13.’’
3 We will modify the judge’s recommended Order to require the
Respondent to notify the Regional Director in writing within 20 days
from the date of the Order what steps it has taken to comply, and
to remove from its files any reference to the unlawful demotion and
discharges.
4 All dates are in 1990 unless otherwise indicated.
5 We adopt the judge’s finding that the Respondent, through
Tangeman, violated Sec. 8(a)(1) by creating the impression among
employees that their union activities were under surveillance. In so
finding, we note that the judge, in sec. III,D, par. 1, of his decision,
incorrectly stated that Tangeman did not specifically deny telling
employees that he knew about the union meeting when, in fact,
Tangeman did deny making this statement.
6 The judge inadvertently stated in sec. III,D, par. 3, of his deci-
sion that the union meeting was held at Moyur’s home.
7 We adopt the judge’s finding that McKinney’s statement con-
stitutes a threat of job loss, thereby violating Sec. 8(a)(1).
Bay Corrugated Container, Inc. and Amalgamated
Clothing and Textile Workers Union, Chicago
and Central States Joint Board, AFL–CIO–
CLC. Cases 7–CA–31177, 7–CA–31342, and 7–
CA–31584
February 16, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 31, 1992, Administrative Law Judge El-
bert D. Gadsden issued the attached decision. The Re-
spondent filed exceptions and a brief in support,1 and
the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order as modified.3
For the reasons stated below, we agree with the
judge that the Respondent violated Section 8(a)(3) and
(1) of the Act when it discharged employees Don
Moyur, Rick Bartee, and Adam Gibson on October 24,
1990.4
In early September, employee Rick Bartee met with
a union representative to discuss the representation of
the Respondent’s employees. Between that time and
October 24, Bartee held several employee meetings at
his home and visited the homes of about 50 employees
to solicit their support for the Union. Bartee also
passed out union literature at the gate of the Respond-
ent’s facility, in full view of management, approxi-
mately five times prior to October 24.
Employee Don Moyur was also active in the union
organizing drive. He visited employees’ homes to dis-
cuss the Union, passed out union cards, handbilled at
the front gate, and placed union literature on tables in
the cafeteria. After handbilling at the front gate on Oc-
tober 15, Moyur was met by Vice President of Data
Processing John Reuther, Personnel Director Rich Wil-
liams and Executive Vice President Dick Tangeman as
he entered the plant. Reuther asked Moyur ‘‘how ev-
erything was going at the gate.’’
On October 10, Tangeman met with the press de-
partment employees to discuss the union organizing
drive. During this meeting, Tangeman stated that he
had heard rumors that there was a union meeting that
day at 4:30 p.m. and that he knew where it was.5
Tangeman stared at Bartee while making this state-
ment. In fact, a union meeting was held that evening
at Bartee’s6 home.
On October 19, Assistant Plant Manager Randy
McKinney approached Moyur and Bartee at the ward
press machine. Moyur asked McKinney what kind of
guarantees Moyur would have to keep his job if he
signed a union card. McKinney replied ‘‘You guys do
what you gotta do, we’ll do what we gotta do. But
we’ll get you guys.’’7
About a week prior to October 24, employee Adam
Gibson met with Plant Manager Chuck Reuther regard-
ing a problem between Gibson and Bartee. During this
meeting, Reuther told Gibson that Bartee was the one
heading the union organizing drive, that Reuther could
not understand why Bartee was doing this because the
company had done so much for him, and that Reuther
could not understand why Bartee was carrying this out.
Reuther added that ‘‘Rick was kind of walking a thin
line with his job, starting all this Union stuff.’’
On October 23, Bartee, Moyur, and Gibson were as-
signed to run an order for Digitron Packaging on the
ward press machine. The order consisted of printing
the Ford logo and legal phrases on about 5500 pieces.
Chuck Reuther ordered Gibson to rush the order and
451BAY CORRUGATED CONTAINER
8 In support of its assertion that the employees intentionally failed
to detect the erroneous print code, the Respondent argues that Gib-
son and Moyur subsequently admitted in their applications for unem-
ployment compensation that the reason for their discharge was that
the three employees had ‘‘missed the error’’ when they set up the
press. Although the employees admitted that they mistakenly allowed
the order to run using an erroneous print code, we do not find that
this admission provides a basis for the Respondent’s assertion that
the employees’ conduct was ‘‘intentional’’ or ‘‘grossly negligent.’’
To the contrary, the employees credibly testified that they checked
the sample sheet to the print code and believed, although perhaps
mistakenly, that the sample sheet conformed to the print code speci-
fications.
told him that he would be monitoring how fast Gibson
worked.
In preparing the press to run the order, Bartee and
Moyur followed instructions contained on a factory
card and print code. The print code sets forth the print-
ing specifications for the box to be manufactured, in-
cluding the size and placement of any printing on the
panels. Once the order was set up, Bartee and Moyur
ran a test sheet and checked it against the information
on the factory card and print code. Both concluded that
the test sheet accurately conformed to the specifica-
tions. Gibson also checked the order and, on confirm-
ing that it was correct, authorized the run of the order.
With approximately 1000 pieces remaining to print,
Quality Control Manager Kris Eggleston notified
Bartee and Gibson that the order had been printed with
the legal phrase in the wrong place. Later that day, all
three employees were called in to a meeting with
President Warren Reuther, Chuck and John Reuther,
and Randy McKinney. Warren Reuther showed the
employees the erroneously printed box which had the
legal phrase to the side of the logo, and the print code
which specified the placement of the legal phrase
below the logo. He then asked the employees what
was wrong with the finished box as compared to the
print code he was holding. Moyur acknowledged that
the printed box did not conform to the print code, and
stated that the dies would not fit in the panel in ac-
cordance with the print code. Indeed, the Respondent
admits that the print code for this order was erro-
neously made up by its sales department and left at the
press for the employees to run. Evidently, all three em-
ployees missed the error in the print code when they
checked the sample sheet against the printing specifica-
tions.
The following day, Gibson, Bartee, and Moyur were
discharged. Warren Reuther told the employees that he
failed to understand how the employees could make
this mistake and that the error cost him money. Moyur
stated that he could not understand how Reuther could
discharge him after 5-1/2 years, and that it was no
wonder the employees wanted a union. Warren Reu-
ther, despite his knowledge of the union drive, stated
that he did not know anything about a union.
We find that the General Counsel established a
strong prima facie case that the union activity of
Moyur and Bartee was a motivating factor in the Re-
spondent’s decision to discharge them on October 24.
Immediately prior to October 24, Bartee and Moyur
openly supported the Union and handbilled at the front
gate of the Respondent’s plant. The Respondent clearly
had knowledge of their union activities. Further, we
find that the Respondent exhibited antiunion animus by
specifically threatening Moyur and Bartee with loss of
their jobs for supporting the Union, by creating the im-
pression among employees that their union activities
were under surveillance, and by stating that Bartee was
‘‘walking a thin line with his job’’ because he started
the union ‘‘stuff.’’
We also find that the General Counsel established a
prima facie case that the Respondent discharged Gib-
son, who had not openly supported the Union, in an
effort to cover up its discriminatory discharge of
Bartee and Moyur. The Board has held that, in the
context of a union organizing drive, the discharge of
a neutral employee in order to facilitate or cover up
discriminatory conduct against a known union sup-
porter is violative of Section 8(a)(3) and (1) of the
Act. Dawson Carbide Industries, 273 NLRB 382, 389
(1984), enfd. 782 F.2d 64 (6th Cir. 1986). Here, the
Respondent would have had no justification for not
terminating Gibson along with the two known union
supporters for the printing error in which all were in-
volved. Thus, we find that the General Counsel has
shown that the protected conduct of Moyur and Bartee
was a motivating factor in the Respondent’s decision
to discharge Gibson. Under the analysis set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), the burden shifts to the
Respondent to demonstrate that it would have dis-
charged Bartee, Moyur and Gibson even in the absence
of the employees’ union activities. The Respondent
contends that it discharged the three employees be-
cause of their intentional or gross misconduct in failing
to detect an erroneous print code,8 not consulting high-
er management for directions, and running the erro-
neous print on an order of 5500 cartons. The Respond-
ent concedes that from time to time, the sales depart-
ment prepares a print code which cannot be printed
properly once it reaches a machine. The Respondent
contends, however, that the burden to catch these prob-
lems falls on the machine operators. The Respondent
maintains that the October 23 printing error cost it
$5700, and that it had never before sustained a manu-
facturing error of this magnitude.
We agree with the judge that the mistake was fairly
attributable to both management and the alleged
discriminatees. The boxes requested had never been
manufactured by the Respondent before and required
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 In sec. III,F, par. 41, of his decision, the judge incorrectly stated
that employee Larry Keck testified that he ran an order using the
wrong dies, when, in fact, Rick Bartee testified as to Keck’s printing
error.
the use of a new print code. Although new orders gen-
erally have a white slip attached to the factory card to
alert the workers that it is a new order, the Digitron
print code did not have a white slip attached. Further,
it is undisputed that the print code given to the em-
ployees was incorrect and resulted in the manufacture
of the misprinted cartons. The employees credibly tes-
tified that they ran the order after checking the sample
sheet to the print code. Although the employees may
have erred in their belief that the sample sheet con-
formed to the print-code specifications, the Respondent
has not shown that it reasonably believed that the em-
ployees’ error was intentional or grossly negligent.
The record shows that the Respondent’s sales de-
partment is responsible for making up factory cards
and print codes in accordance with factory specifica-
tions. Sales Manager Dennis Reuther testified that the
person in the sales department who drew up the print
code in question was not aware that it would not fit
on the panel of the carton ordered. This, he said, was
an unusual oversight on the part of the sales depart-
ment. Nonetheless, despite the Respondent’s admission
that the sales department committed an error, and de-
spite the Respondent’s alleged concern over the mag-
nitude of this error, Supervisor McKinney testified that
no one in the sales department was investigated or dis-
ciplined.
The great disparity in the Respondent’s treatment of
the employees of the two departments responsible for
the manufacture of the misprinted boxes (discharging
the press department employees while not even warn-
ing the sales department employees) strongly suggests
that it was not the printing error that motivated the dis-
charges. Rather, it appears that the Respondent seized
on the mistake as a pretext to ‘‘get’’ Moyur and
Bartee, just as it had predicted it would do less than
a week earlier.
We also find it significant that although the Re-
spondent has issued written warnings for printing er-
rors in the past,9 it had never before discharged em-
ployees for this conduct. Although the Respondent ar-
gues that discharge was warranted here because of the
magnitude of the error, it failed to establish that the
sales price of mistaken orders has been a determinative
factor in deciding the type of discipline for these er-
rors. Nor did the Respondent present evidence of any
company policy calling for the immediate discharge of
employees who mistakenly run orders using erroneous
print codes. Further, the record shows that Bartee,
Moyur, and Gibson had not previously received any
warnings for this type of conduct. Indeed, the Re-
spondent admitted that it had no problem with any of
these employees’ work records prior to the October 23
incident.
Based on the foregoing, we find that the Respondent
failed to demonstrate by a preponderance of the evi-
dence that employees Gibson, Bartee, and Moyur
would have been discharged even without the employ-
ees’ protected conduct. Accordingly, we find that the
Respondent violated Section 8(a)(3) and (1) of the Act
by discharging these employees because of their union
activity.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Bay
Corrugated Container, Inc., Monroe, Michigan, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Insert the following as paragraph 2(e) and reletter
the subsequent paragraphs.
‘‘(e) Remove from its files any reference to the un-
lawful demotion and discharges and notify the employ-
ees in writing that this has been done and that the un-
lawful demotion and discharges will not be used
against them in any way.’’
2. Substitute the following for the new paragraph
2(h).
‘‘(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with loss of jobs
if they support or select the Union as their bargaining
representative.
453BAY CORRUGATED CONTAINER
WE WILL NOT create the impression among our em-
ployees that their concerted or union organizing activi-
ties are under surveillance by us.
WE WILL NOT discourage membership in or activi-
ties on behalf of Amalgamated Clothing and Textile
Workers Union, Chicago and Central States Joint
Board, AFL–CIO–CLC, or any other labor organiza-
tion, by demoting and/or discharging our employees,
or otherwise discriminating against them in any like or
related manner, with respect to their tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Adam Gibson, Donald Moyur, and
Rick Bartee immediate and full reinstatement to their
former positions as of October 24, 1990, or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and WE WILL make them whole
for any loss of earnings and other benefits suffered as
a result of our discrimination against them, with inter-
est.
WE WILL offer Daniel Russell immediate and full re-
instatement to his former position as press operator as
of December 18, 1990, or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and WE WILL make him whole for any loss of earnings
and other benefits suffered as a result of our discrimi-
nation against him, with interest.
WE WILL remove from our files any reference to the
demotion and discharges of the above-named persons,
and notify each of them in writing that this has been
done and that the demotion and discharges will not be
used against them in any way.
BAY CORRUGATED CONTAINER, INC.
Tinamirae Pappas, Esq. and George M. Messrey, Esq., for
the General Counsel.
Craig S. Schwartz, Esq. (McDonald and Goren, P.C.), of
Birmingham, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. Charges
were filed on November 1 and December 27, 1990 and Feb-
ruary 21, 1991, respectively, by Amalgamated Clothing and
Textile Clothing Workers Union, Chicago and Central States
Joint Board, AFL–CIO–CLC (the Union or the Charging
Party) against Bay Corrugated Container, Inc. (the Respond-
ent).
On December 5, 1990, and February 8, 1991, respectively,
the Regional Director for Region 7 issued a complaint
against Respondent and on February 11, 1991, the Regional
Director issued an order consolidating the complaints in
Cases 7–CA–31177 and 7–CA–31342. On March 29, 1991,
the Regional Director issued a second order consolidating
Cases 7–CA–31177, 7–CA–31342, and 7–CA–31584 against
the Respondent.
In essence, the second order consolidating the complaints
alleged that Respondent among other things created among
its employees, the impression of surveillance of their union
activities, and that Respondent threatened employees with
loss of jobs, thereby interfering with, restraining, and coerc-
ing employees in the exercise of their protected Section 7
rights, in violation of Section 8(a)(1) of the Act; and that by
discharging employees and demoting another employee the
Respondent has discriminated against its employees in viola-
tion of Section 8(a)(1) and (3) of the Act.
On December 18, 1990, February 21 and April 11, 1991,
the Respondent filed answers to the consolidated complaint,
denying the allegations set forth in the respective complaints
consolidated herein.
The hearing in the above matter was held before me in
Detroit, Michigan, on October 15–18, 1991. Briefs have been
received from counsel for the General Counsel and counsel
for the Respondent, respectively, which have been carefully
considered.
On the entire record in this case, including my observation
of the demeanor of the witnesses, and my consideration of
the briefs filed by respective counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The record shows that Respondent is, and has been at all
times material, a corporation duly organized under and exist-
ing by virtue of the laws of the State of Ohio.
Also, at all times material, Respondent has maintained its
principal office and place of business at 1655 W. 7th Street,
Monroe, Michigan (the Monroe plant) where it is, and has
been at all times material, engaged in the manufacture and
nonretail sale and distribution of corrugated containers and
related products.
At all times material, Respondent, during the course and
conduct of its business operations realized gross revenues in
excess of $500,000 and manufactured, sold, and distributed
at its Monroe facility products valued in excess of $50,000,
which products were shipped from the facility directly to
points located outside the State of Michigan.
The complaint alleges, the Respondent admits, and I find
that Respondent is now and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find
that at all times material the Union has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
At its plant in Monroe, Michigan, Respondent is engaged
in the manufacture and nonretail sale and distribution of cor-
rugated containers (cartons) and related products. The final
step in the production of one of its containers is processed
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The facts set forth above are not in conflict in the record.
2 All dates herein refer to the year 1990 unless otherwise specified.
on the Ward-F press manned by three workers called a pro-
duction controller, a press assistant, and an operator.
In late September or early October 1990, Respondent’s
employees engaged in union organizational activity. In the
latter part of October Respondent assigned two well-known
union supporters and another employee to run a rush order
on the Ward-F press. The factory card and print code for the
order was erroneously made up by management and placed
at the press for the assigned employees to run. All three
workers on the press are supposed to check the order for ac-
curacy, which they said they did, before running the order.
Four thousand cartons of the order had been run before a
member of management saw the error and reported the three
employees who were discharged for running the order with-
out detecting the error. The General Counsel alleged the em-
ployees were discharged for their union activity and Re-
spondent contends the employees were discharged for cause,
negligence.
The question presented for determination is whether the
General Counsel has established a prima facie case that the
discharge of the three employees and one other employee
later discharged, was motivated by their union activity, and
whether they would have been discharged by Respondent
even if they were not engaged in union activity.
At all times material, the following named persons occu-
pied the positions set opposite their respective names, and
have been supervisors of Respondent, within the meaning of
Section 2(11) of the Act, and its agents within the meaning
of Section 2(13) of the Act:
Warren Reuther President
Richard (Dick)
Tangeman Executive Vice President
Chuck Reuther Production Vice President and
Plant Manager
Randall McKinney Assistant Plant Manager and
Superintendent
Rich Williams Personnel Director
Dennis Reuther Director of Purchasing and
Sales
Kris Eggleston Quality Control Manager
John Reuther Vice President of Data
Processing1
B. Employees’ Union Organizing Activities and
Respondent’s Reactions
The uncontroverted and credited evidence of record shows
that alleged discriminatee Ricky (Rick) Bartee was hired by
Respondent in January 1987. Bartee was working as a press
operator when he was discharged October 24, 1990. The
record further shows that some of Respondent’s employees
became interested in union representation in late September
1990.2 On the inquiry of Ricky Bartee, a union representa-
tive visited his home on October 10 and Bartee signed a
union authorization card.
Bartee had previously talked to alleged discriminatee Don-
ald Moyur about the Union. Moyur, who has been employed
by Respondent since October 1984, signed a union authoriza-
tion card on October 10.
Press operator Daniel Russell has been in Respondent’s
employ since May 1987. He attended the union meeting at
Bartee’s house and also signed a union authorization card on
that date (October 10).
Production Controller Adam Gibson was visited at his
home by union representatives on a Saturday in early Octo-
ber. Gibson told the representatives he was not interested and
had nothing to say to them. When they left he called Chuck
Reuther and informed him that he had been visited at his
home by union representatives. Chuck Reuther said, ‘‘I guess
they’re not going to let this union thing die.’’ Manager
Chuck Reuther acknowledged that during the first week of
October, Adam Gibson called him and informed him that he
had been visited by a union representative.
Bartee had previously talked to alleged discriminatee Don-
ald Moyur about the Union. Moyur, who has been in Re-
spondent’s employ since October 1984, signed a union au-
thorization card on October 10, 1990. Daniel Russell, a press
operator, has been in Respondent’s employ since May 1987.
Other union activities in which Moyur, Bartee, and Russell
engaged included:
1. Don Moyur
Visiting employees in their homes, discussing the Union,
and soliciting their signature on a union authorization card.
Distributing union cards and leaflets to employees with
Rick Bartee and union representatives in the mornings at the
plant’s gate between October 12–15, and after his discharge
on October 24. On one occasion after distributing leaflets at
the gate, Moyur entered the back door of the plant where
Managers Rich Williams, John Reuther, and Dick Tangeman
were present. Manager John Reuther asked Moyur how was
everything going at the gate of the plant.
2. Rick Bartee
During the first 2 weeks in October, Bartee distributed
union cards and also passed out union leaflets at the plant’s
front gate. While leafleting at the gate between October 15–
20, Managers John, Chuck, and Warren Reuther drove out
and reentered the gate, passing by himself and other
leafleters 15 feet away.
Bartee held union meetings at his home.
3. Daniel Russell
In early October, Bartee informed him about a union meet-
ing held at Bartee’s home. On the same day the union meet-
ing was scheduled, Manager Dick Tangeman called a meet-
ing of employees and told them he knew a union meeting
was scheduled for that afternoon. Russell’s testimony in this
regard is corroborated by mini-flex operator, Edith Sisson,
who testified she was present at the meeting and heard
Tangeman tell the employees he had heard about the union
meeting that evening; that he knew where and when it was
being held; that he was no professional on unions but told
them they would have fines, assessments, and union dues.
Sisson said she does not remember Tangeman having a paper
before him or reading from a paper as he spoke.
Russell attended four or five union meetings during Octo-
ber and December. Distributed union leaflets after the 3:30
shift at the plant’s gate. While so engaged with Bartee and
Moyur on December 13, Manager John Reuther drove out of
455BAY CORRUGATED CONTAINER
the gate, turned around, and drove right back in. Almost im-
mediately thereafter, Respondent’s vice president, Warren
Reuther, Personnel Director Rich Williams, and another per-
son whom Russell could not see, drove out of the gate, pass-
ing himself and the other leafleters, turned around, and reen-
tered the gate. While leafleting on another occasion, Manager
John Reuther and his wife drove out of the gate, passing by
himself and the other leafleters.
Russell visited homes of employees in November inform-
ing them about the Union and soliciting their signature on an
authorization card. Obtained the signature of some employees
and he signed a union authorization card on October 11
(G.C. Exh. 2).
Russell wore 1 to 15 union buttons, 1 inch in diameter,
on his shirt at work from October until he was discharged.
Manager Chuck Reuther acknowledged that during the
first part of October 1990, alleged discriminatee Adam Gib-
son called him and said, ‘‘Chuck, I wanted you to know that
two union representatives just visited my home, asking me
if I would be interested in joining a union or helping to start
a union,’’ and that I told them they were not interested in
talking to me and asked them to leave my home.
Conclusions
It is particularly noted that Respondent does not deny hav-
ing had knowledge of the union organizing activities of its
employees during early October and November. In fact Man-
ager Chuck Reuther acknowledged he learned about the
union organizing activities of the employees in early Octo-
ber, when employee Adam Gibson called him at home and
informed him that he had been visited at his home by union
representatives. Thereafter, the record shows, Tangeman, on
advice of legal counsel for Respondent, met with employees
and discussed some aspects of unionization.
I therefore conclude and find on the foregoing
uncontroverted evidence, that Respondent’s employees com-
menced union organizing activities during the first week of
October 1990; and that Respondent had knowledge of their
organizing activities during that same week.
C. Respondent’s Knowledge of Employees Involved in
Organizing Activities
Production Controller Adam Gibson testified that some-
time in October he went to Manager Chuck Reuther’s office
to discuss a problem he was having with employee Rick
Bartee. Manager Reuther said:
Rick Bartee was the one heading all this union orga-
nizing and that he couldn’t understand why, why Rick
had, was doing this because the company had done so
much for him. . . . Warren had done so much for him
. . . that when Rick’s father passed away, we gave him
as much time as he needed off. . . . that when his
girlfriend needed a babysitter and was going to quit
that Warren had two people in the office look for a
babysitter for him and found him a babysitter. . . .
when he asked for a day off they gave him that. . . .
and that Rick was kind of walking a thin line with his
job, starting all this union stuff.
According to the testimony of Manager Chuck Reuther, it
was Adam Gibson who attributed the difficulty of his getting
along with Rick Bartee to Bartee’s union activities. While
this may be true, I find the identity of who attributed
Bartee’s union activities to the strained relations between
Gibson and Bartee insignificant. More importantly, it is
noted that Manager Reuther did not deny he told Gibson,
‘‘Rick Bartee was the one heading all this union organizing
and he could not understand why, . . . since manager War-
ren Reuther had been so considerate with Bartee’s and his
girlfriend’s personal problems interfering with their work
schedules.’’
Not only do I find Gibson’s version more logical than
Manager Reuther’s, but I was also persuaded by the de-
meanor of each witness that Gibson’s account was truthful
and Manager Chuck Reuther’s was not. Gibson’s version is
more consistent with a manager’s concerns about an em-
ployee to whom it has extended gratuitous considerations and
its disenchantment with learning that the employee was head-
ing a union drive. The latter conduct by the employee would
generally not be favored by management. For these reasons
I find that Manager Chuck Reuther made the statements at-
tributed to him by Gibson.
The evidence is also essentially uncontroverted that during
October and November, employees Ricky Bartee, Donald
Moyur, and Daniel Russell openly engaged in distributing
union leaflets at the front gate of Respondent’s plant; that on
one occasion or another, either, one or a combination of
Managers John, Warren and Chuck Reuther, Rich Williams,
and Dick Tangeman drove out and reentered the plant’s gate
while the three employees and/or union representatives were
distributing union leaflets.
Conclusions
Based on the foregoing evidence, I find that it may be rea-
sonably inferred from such evidence that all of the previously
identified managers in the cars which drove out and back
into the gate of the plant, were able to see, did in fact see,
and recognized employees Bartee, Moyur, and Russell en-
gaged in distributing union leaflets. In fact, on one occasion
after Moyur completed distribution of leaflets at the gate and
entered the plant’s rear door, Manager John Reuther asked
Moyur, ‘‘How was everything going at the gate.’’ The latter
statement clearly constitutes probative evidence that Manager
John Reuther saw Moyur engaged in distribution of union
leaflets at the gate and that he wanted Moyur to know that
he knew about Moyur’s union activities.
I therefore further find that as early as October 15 or 16,
and before October 23, Respondent had actual knowledge of
the union activities of Bartee, Moyur, and Russell, having
observed them engaging in distribution of union leaflets, as
well as the other above-described activities, that Russell,
Bartee, and Moyur were supporting the Union.
D. Surveillance
The only equivocal aspect of the testimonial evidence is
Manager Tangeman’s explanation to the testimony of several
employees, including Moyur, and Edith Sisson, who is pres-
ently employed by Respondent, that he told the employees
in the meeting that he knew there was a union meeting, and
he knew where and when it was being held. In this regard,
Manager Tangeman testified that he read word-for-word
from an outline prepared by Craig Schwartz, attorney for Re-
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 I was persuaded by the demeanor of employees Wegman, Rus-
sell, Bartee, Moyur, and Sisson that they were testifying truthfully
in this regard. I was especially persuaded by Sisson’s account since
she is still employed by Respondent and her account is adverse to
Respondent’s best interest. Gold Standard Enterprises 234 NLRB
618 (1978). Correspondingly, I discredit Manager Tangeman’s indi-
rect denial that he told the employees he knew where and when the
union meeting was being held, because he read word-for-word from
an outline prepared by counsel for Respondent. Even if Manager
Tangeman read word-for-word from the outline prepared by counsel,
I find that he deviated from that outline and actually told the em-
ployees he knew where and when the union meeting was being held
on October 11.
4 Although employee Donald Moyur asked Supervisor McKinney
about the security of his job if he signed or did not sign a union
authorization, I credit Moyur’s and McKinney’s account to the ex-
tent that the latter told Moyur not to worry about the job as long
as he did his work. However, I discredit McKinney’s denial that he
told Moyur, ‘‘Do what you’ve got to do and we’ll do what we’ve
got to do,’’ but we or they [Respondent] will get you.’’ I credit
Moyur’s account over McKinney’s account in this regard because
Moyur’s version is essentially corroborated by Rick Bartee, their ac-
count is consistent with all the credited evidence of record, and be-
cause I was persuaded by the demeanor of each witness that Moyur
and Bartee were telling the truth and McKinney’s denial was not
truthful.
spondent (R. Exh. 27), in which he acknowledged knowing
that some union activity was in progress. The outline (R.
Exh. 27) does not state that management knew where and
when the union meeting was being held. However, Manager
Tangeman did not specifically deny that as he looked specifi-
cally at Bartee, he told the employees he knew there was
going to be a union meeting and he knew when and where
the union meeting was being held.
Conclusion
It is particularly noted that the testimony of employees
Donald Moyur, Ricky Bartee, Daniel Wegman, and Daniel
Russell all3 that as Tangemen looked specifically at Bartee,
he said or implied, he knew the employees were having a
union meeting and he knew where and when the union meet-
ing was being held.
Thus, I find that during the company-called meeting on
October 11, Manager Tangeman, while staring at employee
Ricky Bartee, told the employees he knew they were having
a union meeting and he knew where and when it was being
held. The employees actually held a union meeting that after-
noon at employee Moyur’s home. By making such state-
ments to the employees, I find that Manager Tangeman co-
erced and restrained the employees in the exercise of their
Section 7 rights by telling them he knew they were having
a union meeting, and he knew where and when it was being
held. Such conduct by Respondent created the impression
among the employees that their union activities were under
surveillance by the Respondent, and the conduct by the Re-
spondent is such that the employees would reasonably as-
sume that their union activities were under surveillance by
Respondent. Schrementi Bros., 179 NLRB 853 (1969). By
creating such an impression, the Respondent has violated
Section 8(a)(1) of the Act. Emerson Electric Co., 287 NLRB
1065 (1988); J. P. Stevens & Co., 245 NLRB 198 (1979).
E. Respondent Threatens Loss of Jobs
Employee Donald Moyur testified that on October 19, Su-
pervisor Randall (Randy) McKinney came to his press where
he and Rick Bartee were. Moyur said he asked McKinney
if he signed or did not sign a union card, what kind of guar-
antees did he have to keep his job. McKinney told him ‘‘to
do what he [Moyur] had to do, we’ll do what we gotta do.
. . . but we’ll get you guys.’’ Immediately thereafter he
watched McKinney go directly to Chuck Reuther’s office.
Moyur’s testimony in this regard is corroborated by Bartee.
However, Randy McKinney denied he told Moyur, ‘‘You’ve
got to do what you’ve got to do, and they or we’ve got to
do what we’ve got to do, but we’ll getcha.’’ He denied he
threatened Moyur with loss of his job for supporting the
Union.4
Conclusions
Based on the foregoing credited evidence I find that during
the employees’ union organizing drive, Respondent (Randy
McKinney) told employees Moyur and Bartee that Respond-
ent was going to get them if they supported the union effort.
Consequently, I further find that such statement by Respond-
ent constituted a threat of loss of jobs and therefore had a
restraining and coercive effect on the protected Section 7
rights of employees, in violation of Section 8(a)(1) of the
Act. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); Ma-
rines Memorial Assn., 261 NLRB 1357, 1362 (1982).
F. Respondent Terminated the Employment of Bartee,
Moyur, and Gibson
A composite of the essentially uncontroverted and credited
evidence of record shows that a part of Respondent’s manu-
facturing process included printing what is called a legal
phrase (printed logo and legal language-labeling) on its car-
tons. The legal phrase is designed by Respondent after con-
sultation with, and approval of a customer. When an order
for a certain size carton is received by Respondent, the latter
is obligated to print the legal phrase with the preapproved
print code designed by Respondent on the specified carton
size for which it was designed. If any inconsistency is en-
countered with the printed legal phrase varying from the
print code, the workers are required to contact Supervisor
Reuther who is to contact the customer to determine whether
the order placer or customer will grant a variance, or Man-
ager Dennis or Chuck Reuther will modify the print code and
give the workers the go ahead to run the order. The print
code for orders are generally pulled by Alice Engels, and
someone, possibly the production controller places them on
the clipboard at the appropriate press for the workers when
they arrive at work.
The credited evidence also shows that Adam Gibson, pro-
duction controller for 4 years arrived at work at 6:15 a.m.
on October 23. He turned on the lights and was preparing
for work. At that juncture, Manager Chuck Reuther told him
there was a hot order for Digitron, a well known customer
of Respondent, and he wanted Gibson to get the machines
going and check orders fast, because he was not doing them
fast enough; and that Chuck Reuther would be listening on
the radio to assure that he was working fast enough. Gibson,
as production controller, reported to the Ward-F machine to
run the order for Digitron. The operator of the machine was
Rick Bartee and the helper was Donald Moyur. They had al-
457BAY CORRUGATED CONTAINER
ready set up the machine with the paper for 5500 cartons,
and both Moyur and Bartee said they had checked the order
and clip board as they are supposed to do. Gibson said he
checked all the dimensions and measured the printing plate,
checked the stamp and the numbers and made the test run
to make sure they were correct and in accordance with the
print code. Finding everything perfect, he said he put the ma-
chine into run and was called to check another machine.
While Gibson was checking another machine, Quality
Control Manager Kris Eggleston, called him back to the
Ward-F machine where the Digitron order was running.
Eggleston showed him the print code in the card box and
told him the legal phrase of the printing was in the wrong
place (G.C Exh. 6). This code called for the print phrases
(Ford Motor Co.) to be printed in two places at the bottom.
Donald Moyur’s account essentially corroborates Gibson’s
account with the latter adding that he checked the factory
card and the dies according to the print code, since the speci-
fications were on both the factory card and the print code.
He changed the ink, set the rolls, and set up the hopper.
Rick Bartee’s account also essentially corroborates Gib-
son’s account, with Bartee adding that he punched the di-
mensions on the Digitron order into the computer and setup
the knives and scores, checked the print plates, and found
them okay. Gibson proceeded running the order.
Quality Control Manager Kris Eggleston testified that dur-
ing his random quality checks on October 23, he noted the
Digitron box that was being printed did not match the print
code. The print code showed the logo with the legal phrases
under the logo (G.C. Exh. 6). The box being printed showed
the legal phrases to the right of the logo. Nearly all except
about 1000 cartons at that time remained for printing and
Eggleston admitted he did not shut down or order Gibson,
Bartee, or Moyur to stop running the order. He said he told
Rick Bartee the code did not match the printed box and
Bartee told him the legal phrases did not fit under the logo,
so they moved them to the right of the logo. Bartee denied
he made such a statement.
Manager Eggleston called the Production Controller Adam
Gibson and showed him the problem. He said Gibson was
surprised. However, Eggleston acknowledged he did not in-
form higher management, including Warren Reuther about
the latter statements attributed to Moyur during the meeting
subsequently held in the quality control room. He said he did
so inform Warren Reuther the next day, October 24.
Shortly after the running of the Digitron order had been
completed, Gibson, Bartee, and Moyur were called to a
meeting by Manager Warren Reuther. Other persons for
management present were Chuck Reuther, Kris Eggleston,
and Supervisor Randy Mckinney. During the meeting Warren
Reuther presented a print code, factory card and printed box
of the Digitron order, and asked the workers what was wrong
with the order. Moyur looked at the code and card and told
him that according to the print code the dye on the box is
placed to the right instead of under the logo. Manager War-
ren Reuther said it looks like the erroneous run was delib-
erately done and he directed Chuck Reuther to writeup all
three of them (Gibson, Bartee, and Moyur), then he said
write up only Gibson and Bartee. Warren Reuther said he
could see how the order was set up wrong but could not un-
derstand how none of the three workers did not catch it. Gib-
son and Moyur testified that Moyur told Reuther the dies
(G.C. Exh. 6) would not fit in the box panel and Reuther
said that was not his decision to make. Moyur said there was
such a difference between the dye he had set up and the dye
Warren Reuther presented them (G.C. Exh. 6) in the called-
meeting, that he could not have overlooked the error.
Warren Reuther testified he decided Respondent would
contact Digitron and ascertain whether they would accept the
order as erroneously ran. Both Gibson and Bartee testified
without dispute that in new customer orders, a white tag is
stapled to the factory card to alert the checker to consult with
the supervisor to secure any different specifications before
running the order. A white tag was not attached to the fac-
tory card for the order ran on October 23, nor to the one
shown to Gibson and Moyur by Warren Reuther on October
23. Since Eggleston had the print code with him, Moyur tes-
tified it was not available to him at the machine to recheck
it. The record establishes that the Ford Motor Company is
not a new customer.
Warren Reuther further testified that Digitron had declined
to accept the order of October 23 because the previous order
for September was also erroneously printed. However, Man-
ager Reuther did not present any evidence from Digitron to
support his statements.
1. The October 24 discharges
On the next day, October 24, Gibson, Bartee, and Moyur
were called to the office where Warren, John, and Chuck
Reuther, and Manager Dick Tangeman were present. Warren
Reuther told the employees he saw the printing error as a
$6000 mistake resulting from pure negligence, and he had no
alternative other than to discharge them. Donald Moyur said
that was not a good reason for discharging them after 6
years’ employment; and that it was understandable why peo-
ple were trying to start a union in the plant. Warren Reuther
replied he did not know anything about union organizing but
he acknowledged at the hearing that was not true, because
he said he had learned about the advent of the employees
union organizing activity in early October while he was out
of town and called the plant.
2. Question
Since Respondent here contends that neither Gibson,
Bartee, nor Moyur was terminated for engaging in union or-
ganizing activities, but for cause; and that Daniel Russell was
not demoted for engaging in union organizing activities, but
for cause; it is clear that the issues presented for resolution
of the termination of Gibson, Bartee, and Moyur, and the de-
motion and discharge of Russell, calls for an analysis and
evaluation under the Wright Line doctrine. Wright Line, 251
NLRB 1083 (1980).
In Wright Line the Board held ‘‘that in such 8(a)(3) cases,
where the Respondent offers evidence of cause for the dis-
charge, or other alleged discriminatory conduct, the General
Counsel must first make a prima facie showing sufficient to
support the inference that protected concerted conduct was a
motivating factor in the employer’s decision and once this is
established, the burden will shift to the employer to dem-
onstrate that the same action would have taken place even
in the absence of the employee’s protected conduct.’’
Additionally, the Supreme Court in NLRB v.Transportation
Management Corp., 462 U.S. 393 (1983), held with respect
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to motive or reason for alleged discriminatory conduct,
‘‘viewed the term ‘substantial or motivating factor’ as inter-
changeable with the phrase ‘played a role.’’’ In establishing
a prima facie case, of course, the General Counsel must es-
tablish the existence of protected activity, knowledge of that
activity by the employer, and union animus. Once the Gen-
eral Counsel establishes a prima facie case of unlawful con-
duct, the employer has ‘‘an affirmative defense in which the
employer must demonstrate by a preponderance of the evi-
dence that the same action would have taken place even in
the absence of protected conduct.’’ Roure Bertrand Dupont,
Inc., 271 NLRB 443 (1984).
Consequently, the first question raised for consideration
under Wright Line in the instant case, is whether the General
Counsel has made a prima facie showing sufficient to sup-
port the inference that the protected union organizing activity
of Daniel Russell, Rick Bartee, and Donald Moyur was a
motivating factor in Respondent’s decision to discharge Gib-
son, Bartee, and Moyur on October 24, respectively, and to
demote Russell on December 17 and discharge him Decem-
ber 18.
3. The General Counsel’s evidence
Donald (Don) Moyur has been in Respondent’s employ
since October 1984. Moyur openly engaged in union orga-
nizing activity from early October through November 1990,
and Respondent was fully aware of his personal involvement
in the employees union organizing effort.
On Friday, October 19, Moyur asked Supervisor Randy
McKinney what kind of guarantee he would have of keeping
his job if he signed, or did not sign a union authorization
card. Supervisor McKinney told Moyur ‘‘to do what he
[Moyur] had to do’’ and ‘‘we’ll [management] do what we
gotta do, . . . but we’ll get you guys.’’ After the latter con-
versation with Moyur, Supervisor McKinney went directly to
Manager Chuck Reuther’s office.
Bartee was present on or around October 19, when Moyur
asked Supervisor McKinney would his job be guaranteed if
he signed or did not sign a union authorization card. Bartee
said McKinney replied, ‘‘There were no guarantees and man-
agement will do what it has to do, and they will get you.’’
Thereafter McKinney went directly to Manager Reuther’s of-
fice.
The latter statement by Supervisor McKinney to Moyur, in
the presence of Bartee constituted a threat of loss of jobs or
reprisal against employees for engaging in protected union
activity, in violation of Section 8(a)(1) of the Act. NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969); Marines’ Memo-
rial Assn., 261 NLRB 1357, 1362 (1982).
Ricky (Rick) A. Bartee has been in Respondent’s employ
since January 1987 without any evidence that Respondent
had not been satisfied with his performance as an employee.
Bartee became engaged in union organizing activities in
early October when he hosted a union organizing meeting at
his home on October 10. He openly distributed union leaflets
at the plant’s gate, all of which organizing activities Re-
spondent was fully aware of his involvement.
Production Controller Adam Gibson has been in Respond-
ent’s employ since June 1986 but he did not engage in any
union activity and was not a supporter of the Union. How-
ever, subsequent to the commencement of union activities by
the employees in October, Gibson attended a management
meeting in which Respondent’s legal counsel, Craig
Schwartz, spoke about what management could and could
not do. Schwartz told them ‘‘if anyone had to discharge an
employee concerning the union, make sure the company had
a good reason and documentation.’’
On October 23, Production Controller Gibson, press oper-
ator Bartee, and Press Assistant Moyur were given a rush
order to run on the Ward-F machine for Respondent’s regular
customer, Digitron. Gibson was told by Manager Chuck Reu-
ther that the order was hot and had to be done expeditiously.
Bartee and Moyur sat up the Ward-F machine and all three
workers said they checked the print code and found the test
run alright. Gibson started the machine and running the
order.
After about 4000 of the 5500 carton-order had been print-
ed, Quality Controller Manager Eggleston informed the
workers that they were running an erroneous print code.
However, Eggleston did not direct the workers to stop run-
ning the order, but left the press and reported the error to
higher management officials. Shortly thereafter, the workers
were called into a meeting with Manager Warren Reuther,
Supervisor McKinney, and other management personnel.
After discussing the error with the workers, Manager Warren
Reuther directed that the workers be written up. However,
the next day (October 24), Manager Reuther decided to ter-
minate the employment of Gibson, Bartee, and Moyur, alleg-
edly for running an erroneously printed order of 5500 cartons
without either worker detecting the error or consulting with
management for directions.
Conclusions
I therefore find on the foregoing evidence that as of early
October, Bartee and Moyur were engaged in protected union
organizing activities; that Respondent had knowledge of the
protected organizing activities of both Bartee and Moyur;
that during the organizing activities of Bartee and Moyur,
Respondent created the impression among employees that
their union activities were under surveillance by Respondent;
that Respondent threatened them with loss of their jobs by
telling them Respondent would do what it had to do, and get
them, if they signed a union authorization card; that under
these circumstances, such threat of loss of jobs and creating
the impression among employees that their union activities
were under surveillance by Respondent constituted union ani-
mus of Respondent; that Moyur has worked for Respondent
6 years and Bartee nearly 4 years without any evidence that
the employment of either worker was going to be terminated
prior to the onset of their protected union organizing activi-
ties in early October; and that since Respondent terminated
the employment of Bartee and Moyur between only 7 to 13
days after it learned about their union organizing activities,
I find that the protected union activity of Bartee and Moyur
was a motivating factor in Respondent’s decision to dis-
charge them.
Consequently, having found that Moyur and Bartee were
engaged in protected union activity in early October; that Re-
spondent had knowledge of their activity; that Respondent
manifested union animus by threatening them with loss of
jobs and creating the impression among them that their union
activity was under surveillance; and that the protected union
organizing activity of Bartee and Moyur was a motivating
factor in Respondent’s decision to discharge them, I further
459BAY CORRUGATED CONTAINER
find that the General Counsel has established the required
prima facie showing sufficient to support the inference that
the union activity of Moyur and Bartee was a factor in Re-
spondent’s decision to discharge them on October 24. Wright
Line, supra.
Although Adam Gibson was not a supporter of the Union
and he did not engage in any protected union organizing ac-
tivity with Bartee and Moyur, it is nonetheless noted that
Gibson has been in Respondent’s employ over 4 years. The
evidence fails to show that his employment was in any jeop-
ardy of termination prior to the commencement of the union
organizing activities of Bartee, Moyur, and other employees.
Notwithstanding, Gibson’s employment was terminated along
with that of Bartee and Moyur, and the fact that Gibson was
not involved in protected activity with them does not exon-
erate Respondent from its discriminatory discharge of him.
The Board has held that an employee whose employment
is terminated along with known union activists in order to
‘‘wipe the slate clean’’ is also protected by Section 7 of the
Act. As the Board stated:
In the context of a union organizing drive, an Employ-
er’s discharge of uncommitted, neutral, or inactive em-
ployees in order to ‘‘cover up’’ or to facilitate discrimi-
natory conduct against a targeted union supporting em-
ployee or to discourage employee support for the union
is violative of Section 8(a)(3) of the Act.’’ [Dawson
Carbide Industries, 273 NLRB 382, 389 (1984).]
In the instant case, since the evidence fails to show that
Gibson was a potential for discharge prior to the commence-
ment of employees’ union activity, I find that Respondent, in
an effort to ‘‘cover up’’ or to facilitate its discriminatory dis-
charge of Bartee and Moyur, discharged Gibson also, and by
doing so, the discharge of Moyur and Bartee was therefore
a motivating factor in its decision to discharge Adam Gibson.
As such, I further find that the General Counsel has estab-
lished a prima facie showing sufficient to support the infer-
ence that the protected union organizing conduct of Moyur
and Bartee was a factor in Respondent’s decision to dis-
charge Gibson. Dawson Carbide Industries, supra.
Consequently, the General Counsel having established a
prima facie showing sufficient to support the inference that
the union activity of Moyur, Bartee, and other employees
was a motivating factor in Respondent’s decision to dis-
charge Gibson, the burden now shifts to the Respondent to
demonstrate by a preponderance of the evidence that Gibson
would have been discharged October 24 even in the absence
of the union organizing activities of Bartee, Moyur, and other
employees. Wright Line, supra.
4. Evidence of Respondent’s affirmative defense
The principal reason Respondent gave Gibson, Moyur, and
Bartee for their discharge on October 24, was their neg-
ligence in failing to detect an erroneous print code, not con-
sulting higher management for directions, and running the er-
roneous print on an order of 5500 cartons for its Digitron
customer. Respondent contended that the approximate cost of
the error was $7000 and that it had never sustained a manu-
facturing error of such magnitude.
However, on cross-examination of Manager Richard
Tangeman about the cost of the erroneously printed cartons,
which had to be shredded, he testified he did not know the
cost of the loss. He said he did not know because the loss
would have to be determined by a selling price less profit,
less cost of destroying the cartons, and labor cost during the
carrying out of both work performances. Thus, the Respond-
ent did not produce any record of the cost of the October
23 error.
Manager Tangeman further testified that prior to 1990 Re-
spondent did not keep records of losses due to error where
the order had not been shipped to the customer. It only kept
records of losses which resulted from the return of materials.
However, as of November 1990, after the error loss in ques-
tion, Respondent commenced keeping records of manufac-
turing errors whether or not the order is shipped, under the
subject of ‘‘Manufacturing Deviations.’’ In any event, Re-
spondent does not have any record and it did not present any
objective evidence of the cost of the subject manufacturing
error of October 23.
At the trial the parties stipulated to the admission of Gen-
eral Counsel’s Exhibit 26, a letter from Digitron stating in
essence that the latter was striving to get the Q1 rating from
Ford Motor Company on the basis of a perfect product.
Therefore, it expected all cartons, the printing and the pack-
ing from Respondent to be of perfect quality.
The parties further stipulated that the above letter ad-
dressed to Manager Warren Reuther was transmitted by
Digitron to all of its customers in the regular course of busi-
ness. The letter was faxed to Respondent after Respondent
made its decision to terminate Gibson, Moyur, and Bartee on
October 24. Warren Reuther had the letter circulated among
all of Respondent’s employees.
Manager John Reuther testified and confirmed that Em-
ployer’s Exhibit 26 is evidence of an order from Digitron for
the previous month, September 1990, for 3054 pieces and
6000 sheets which were erroneously printed and shipped to
Digitron. However, the document does not show that the
order was erroneously run. It was not established which em-
ployees prepared the September order. The evidence does not
show that Digitron complained to Respondent (orally or in
writing) about the error in the September order. Digitron ac-
cepted and kept the September order but when Respondent
(Warren Reuther) inquired about the order erroneously print-
ed on October 23, he said Digitron declined to accept ship-
ment, allegedly informing Respondent about an error in the
September order. No witness from Digitron was produced.
The record is replete with evidence of much confusion and
conflicting testimony about how the erroneous factory card
and print code originated, how they made their way to the
box and clipboard at the Ward-F press and was not detected
by the checking of either of the three discharged employees,
while they prepared the machine and ran the order. During
a routine check, quality control manager, Kris Eggleston, tes-
tified he went to the Ward-F press and discovered the error
after about 4000 of the 5500 cartons had been printed. He
acknowledged that after he brought the error to the attention
of Chuck and Warren Reuther, he did not inform them that
either Gibson, Moyur, or Bartee had told him that either had
changed the print dye. Instead, he said he did not inform
Manager Reuther of such admissions until the next day, Oc-
tober 24. Moyur denied he changed the dies in setting up the
order he setup October 23. He denied he told Eggleston he
changed the dies.
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In this regard, Supervisor McKinney testified that when he
was informed about the error on October 23, Rick Bartee
told him, ‘‘We made a mistake,’’ and Don Moyur said, ‘‘If
the plates did not fit, he put them to the right.’’ However,
Manager Chuck Reuther testified that it was Moyur’s duty to
contact Gibson if the print did not fit, so that Gibson could
call Manager Dennis Reuther (who has jurisdiction over the
prints) for the latter to tell the workers when the print code
should be changed in accordance with specifications. It is
noted that McKinney’s account is not corroborated and is de-
nied by Moyur who testified the code and dies were alright
when he checked them.
Manager Dennis Reuther, director of purchasing and sales
for 3 years, is responsible for making up factory cards and
print codes in accordance with factory specifications. Quality
Controller Manager Eggleston testified that the Ward-F press
prints 1000 cartons in 15 minutes and that it may be shut
down by pressing a button. He said when he discovered the
error after about 4000 copies had been run, he did not shut
down or direct the shut down of the machine before the re-
maining 1000 or 1500 cartons had run.
Dennis Reuther further testified that he has never known
Gibson to direct employees to change a dye, nor Moyur to
change a dye without permission. This was the first time Re-
spondent was printing an order for Digitron with directions
from Digitron to use Ford Motor Company specifications,
and any necessary changes would have had to be authorized
by Ford. He said, ‘‘Apparently, the person in the sales de-
partment who drew up the print code in question [G.C. Exh.
6] was not aware that it would not fit on the panel of the
carton ordered.’’ This he said, was an unusual oversight on
the part of the sales department. Nonetheless, Supervisor
McKinney said no one in the sales department was inves-
tigated or disciplined for this error in the print code because
the error was in the Ford specification.
With Respect to Errors
The General Counsel presented evidence of errors com-
mitted by other employees and what, if any, discipline Re-
spondent imposed. In this regard, Larry Keck testified he ran
the wrong order with the wrong dies and Dean Falkenburg
ran an order wrong and both he and Falkenburg were written
up. He said he does not know of any employee who had
been discharged for an error in running an order.
Former employee Daniel J. McCracken testified pursuant
to subpoena and without dispute that in 1988 or 1989, he put
the wrong color dye and name on an order of 7000 cartons
which were returned to Respondent by the Ford Motor Com-
pany. Both he and Larry Keck misread the print color code.
He and Keck were written up for a loss at a cost of $1400–
$1500.
Adam Gibson has been in Respondent’s employ for over
4 years and he testified that production errors were fre-
quently made even though not of the magnitude of the Octo-
ber 23 order. Nonetheless, Gibson and Moyur said they could
not recall any employee ever being discharged for such an
error. As production controller he said he would have to go
in the office once or twice a week because of errors in the
print code and talk with Dennis Reuther, who would tell him
what to do about the error. He did not feel he made an error
on the October 23 Digitron order because he checked the
order. Respondent contended Gibson stated in his application
for unemployment insurance, ‘‘he was fired because an order
was ran incorrectly. . . . all three of us missed the error and
we checked the print code.’’ However, the latter statement is
not reflected in Gibson’s application (E. Exh. 16). In fact his
written statement contradicts the alleged statement. He said
print codes are made up by Terry Taylor and reviewed by
Dennis Reuther. Moyur testified he had not been written up
for an order in 2-1/2 years.
Daniel J. Wegman has been in Respondent’s employ since
April 1986 and worked as a production controller until he
was demoted to press operator, Ward-F press. He testified
Chuck Reuther assigned him to rerun the Digitron order on
October 24 because Gibson, Bartee, and Moyur had been ter-
minated, and he was the only one on the first shift who
could run the Ward-F press. Supervisor McKinney showed
him a factory card and print code (G.C. Exh. 6) and told him
it was the order Bartee and Moyur screwed up.
Wegman said he ran a test sheet which indicated the dies
would not fit in the panel. He saw the bailer bailing the car-
tons printed by the three discharged workers on October 23.
He called Supervisor McKinney and showed him the erro-
neous position of the legal phrases. McKinney called Chuck
Reuther who measured the dies and called Dennis Reuther,
who altered the print code of the logo size from EE to FF,
and placed the legal phrases to the right of the logo.
Wegman said he then ran the order (R. Exh. 18). General
Counsel’s Exhibit 6 and Respondent’s Exhbit 18 are the
same code, except Respondent’s Exhibit 18 has Dennis
Reuther’s written modification on it. It is noted however, that
Respondent gave the same print code to Wegman that it con-
tends was given to Gibson, Moyur, and Bartee, but by telling
Wegman it was the order the three dischargees screwed up,
Wegman was alerted of a possible irregularity. Respondent
must have given Wegman the print code to try to prove
something amid the controversial scenario of the October 23
error.
Conclusions
Admittedly, the evidence of the scenario of the erroneous
misprinting of the October 23 Digitron order is confusing
and questionable. However, in one significant respect, the
evidence of the erroneously printed order is consistent in that
it appears convincing that the error was occasioned by a mis-
take. Who is responsible for the mistake appears to be quite
confusing and controversial. In a general sense, it would ap-
pear that the mistake would be fairly attributable to both
management and the alleged discriminatees.
In this regard, the evidence shows that the factory card
and print code were erroneously made up in the sales depart-
ment under the supervision of Dennis Reuther. The print
code was unusual in that it was a Digitron order using, for
the first time, a Ford Motor Company logo. The factory card
did not have a white slip attached to it, as is the general
practice for new or unusual orders. Notwithstanding, the card
and print code (G.C. Exh. 6) left the sales department and
made its way to the box and clip board at the Ward-F ma-
chine on October 23, without anyone in Manager Dennis
Reuther’s office either knowing about it, stapling a white tag
to the factory card, or informing the workers about it.
The three workers assigned to run the order (Gibson,
Bartee, and Moyur) all contended each of them had checked
it, said the test run on the order was okay, and they pro-
461BAY CORRUGATED CONTAINER
5 Since the evidence shows that Eggleston did not stop or direct
the employees to shut down the press and prevent the printing of
the remaining 1000 cartons, and since Eggleston is a part of manage-
ment and did not so inform management about what he contended
the workers admitted to him, I discredit Eggleston’s account in this
regard because it is not only illogical, but defies common experi-
ence. I also discredit Eggleston’s account because I was persuaded
by his demeanor that he was not testifying truthfully, while I was
persuaded by the demeanor of Gibson, Bartee, and Moyur, that they
were testifying truthfully, although they appeared to be as con-
founded about how the error occurred as were members of manage-
ment. I do not find the credibility of the alleged discriminatees af-
fected by the fact that Gibson stated in his application for unemploy-
ment that he, Bartee, and Moyur were fired because they made a
mistake in running the order. The latter statement does not explain
who was responsible for the mistake and the whole scenario of the
evidence does not show who was actually responsible for the error.
In fact Manager Dennis Reuther confirmed that it was possible to
manufacture a print code which would print a carton like the cartons
ran by the three alleged discriminatees. This being so, makes Re-
spondent’s argument untenable that the print code (G.C. Exh. 6)
could not have escaped detection by the three alleged discriminatees.
ceeded to run the order. Director of Quality Control Eggle-
ston, who testified he makes random checks of orders in the
process of running, said he happened to arrive at the Ward-
F press after 4000 cartons had run and he noticed the print
code error. He acknowledged he did not shut down the ma-
chine or direct the workers to shut it down for the remaining
1000 cartons to be printed. When he brought the error to the
attention of Gibson, whom he said looked surprised, the lat-
ter told him when he checked the order it was correct.
Moyur testified that the print code (G.C. Exh. 6) was not the
print code he had setup. Bartee also testified that he had
checked the order before running it and found it to be okay.
When the three employees were called into conference by
Manager Warren Reuther, Moyur, in response to a question
by Manager Warren Reuther, was the first employee to state
that the legal phrases were not in the right place.
Although Director of Quality Control Eggleston testified
the three alleged discriminatees had admitted to him that
they made a mistake, and that Moyur had told him he had
changed the dies as they sometimes do, which Moyur denied,
Eggleston acknowledged that he did not inform higher man-
agement about the alleged admission on the day of the error
(October 23), but that he did inform manager Warren Reu-
ther on the following day (October 24). However, Gibson,
Bartee, and Moyur denied that either of them told Eggleston
they changed the dies.5
Thus, when all the credited evidence is viewed in its total-
ity, namely; that the erroneous factory card and print code
(G.C. Exh. 6) was made up in, and was an oversight by,
Manager Dennis Reuther’s sales department; that neither
Manager Dennis Reuther nor any member of his staff was
investigated or disciplined about this oversight; that it was
acknowledged that it was possible the print code (G.C. Exh.
6) ran by the three employees could have been a legitimate
print code; that the subject print code was ordered to be used
by customer Digitron for the first time; that neither the fac-
tory card nor the print code had a white slip attached to it
to alert the workers that it was new or unusual, as was the
Company’s practice; that Manager Chuck Reuther ordered
Gibson to rush the order and he would be monitoring how
fast he would be working; that neither of the three workers
detected anything wrong with the card and print code when
they checked and later tested it; that the evidence fails to
provide any motive or actual evidence that the three employ-
ees intentionally or negligently ran the order; that even when
the error was discovered by management (Eggleston) he did
not stop or direct the employees to stop running the remain-
ing 1000 or 1500 cartons; that Respondent did not inves-
tigate why Eggleston did not stop the running of the order
nor imposed any discipline upon him for not doing so; that
the Respondent did not produce any objective evidence of
the cost of the loss of the erroneously printed cartons; that
neither of the three alleged discriminatees had ever been
known to change a print code without obtaining appropriate
permission to do so; the evidence is at best equivocal under
the circumstances; and not probative that the discharged em-
ployees were responsible for the error.
Additionally when all of the above factors are considered
in conjunction with the additional facts that the alleged
discriminatees Bartee and Moyur had openly engaged in
union activities in early October; that the Respondent knew
about Moyur’s and Bartee’s open support for the Union; that
Manager Chuck Reuther told employee Gibson that it knew
Bartee was ‘‘the one heading all this union organization,’’
and that Bartee ‘‘was kind of walking a thin line with his
job starting all this union stuff;’’ that Supervisor McKinney
told alleged discriminatees Moyur and Bartee if they signed
a union authorization card or supported the Union, Respond-
ent would get them; that such threatening statements by
Chuck Reuther and McKinney constituted union animus; that
Respondent’s attorney told management if it had to discharge
an employee for union activity to make sure it had good rea-
sons and documentation; that by ‘‘good reason and docu-
mentation,’’ counsel for Respondent in all probability did not
mean for Respondent to assert a pretext; and that the unusual
and erroneous factory card and print code (G.C. Exh. 6) job
was given to Gibson, Bartee, and Moyur with explicit direc-
tions to rush the processing; and that the timing, on the very
next day, October 24, 3 weeks after the commencement of
the employees union activity and about only 9–12 days after
Respondent knew Bartee and Moyur were supporting the
Union, Respondent, without issuing any warning, suspension
or offer of adjustment, discharged Gibson, Bartee, and
Moyur on October 24; that Respondent’s swift action was
consistent with its prophecy to get them for supporting the
Union; and that this was the first occasion that Respondent
discharged employees for an erroneous printing, the cost of
which is not established, I am not persuaded by Respond-
ent’s evidence that Respondent would have discharged the
employees on October 24, absent the union activity of
Moyur, Bartee, and other employees.
I therefore conclude and find on the foregoing evidence
that the Respondent has failed to demonstrate by a fair pre-
ponderance of the evidence that employees Gibson, Bartee,
and Moyur would have been discharged even absent the pro-
tected union activity of Moyur, Bartee, and other employees,
of which fact Respondent was aware. Consequently, I find
that Respondent’s decision to discharge them was motivated
by the employees’ protected union organizing activity, and
that running the order on an erroneous print code was not
established to have been done intentionally or negligently by
the dischargees, and was therefore, a pretext by the Respond-
ent to camouflage its otherwise unlawful and discriminatory
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discharge of them, in violation of Section 8(a)(1) and (3) of
the Act. Wright Line, supra,
In its posthearing brief to me, Respondent cites CEC
Chardon Electrical, 302 NLRB 106 (1991), as authority for
finding that its decision to discharge Gibson, Moyur, and
Bartee was for cause. However, an analysis of that decision
readily reveals that it is distinguishable from the facts in the
instant case. Although the employer there had knowledge of
the dischargees’ protected activities, unlike here, there was
no union animus or unlawful conduct on the part of the em-
ployer. Here, the Respondent threatened employees with loss
of jobs and created the impression among the employees that
their protected activities were under surveillance, in violation
of Section 8(a)(1) of the Act.
In CEC Chardon, both employees had received final warn-
ings for absenteeism and the employer decided that both
should be discharged after the employees tried to conceal
their error, by failing to record the scrap on the routing ticket
and dispose of the scrap in the box provided for it, rather
than in the trash, and that such conduct was considered intol-
erable and a threat to the employers production. Here, neither
employee had received a final warning for an act they re-
peated which would evidence justification for their discharge.
The employees in the instant case made no effort to conceal
an error about which all of them were unaware. I therefore
find CEC Chardon inapplicable to the facts before me.
Respondent also cites Great Western Coca Cola Bottling
Co., 256 NLRB 520 (1981), in support of its position. How-
ever, it is noted that the dischargee (Patel) there, did not look
at the large chart posted across his work table listing the
specified range for carbonation volume in Fanta strawberry
soda. Not only did Patel not look at and comply with the
specifics listed in the chart, but he also ran five 5000 cases
of the soda with inconsistent and inadequate carbonation vol-
umes.
It would appear that the inconsistent volumes indicated a
lack of attention or negligence on his part. In the instant
case, the evidence does not indicate any inconsistencies to
suggest negligence.
Also, the evidence in Great Western Coca Cola failed to
show that the employer had knowledge of Patel’s protected
activities. The absence of this element constitutes a crucial
element (knowledge) of the Wright Line doctrine. Patel ad-
mitted he wore his union button only when he did not see
his boss. There, the General Counsel failed to establish a
prima facie showing under Wright Line, supra. Consequently,
I find the facts in Great Western Coca Cola, supra, as well
as the facts in Monterey Distilling Co., 255 NLRB 494
(1981), and KHK Transportation Corp., 262 NLRB 1481,
1486 (1982), also cited by Respondent, inapplicable to the
facts in the instant case.
G. The Termination of Daniel Russell’s Employment
On an afternoon subsequent to Thanksgiving 1990, em-
ployee Edith Sisson and Supervisor Randy McKinney were
on break as Daniel Russell was leaving the plant. Russell
asked Sisson whether Rick Bartee and Donald Moyur had
found employment. Sisson said, ‘‘No.’’ Russell asked her
had they been getting more signed union cards to expedite
unionization and Sisson said, ‘‘No, she wished they all
could, but they are a few short.’’ Sisson asked Supervisor
McKinney did he wish to wear a union button and McKin-
ney said, ‘‘Give it here, I will wear it.’’ He put the button
on as the 3:30 p.m. buzzer went off and he left the plant.
McKinney later returned the union button.
Russell reported to work on December 3 and punched into
the computer. Supervisor McKinney approached him and di-
rected him to work on the large Ward-F press that day be-
cause a worker was absent. Since the paper feeder on the
machine was not operating properly, Russell said he had to
lift up the heavy paper to put it into the machine. Two hours
later, his back started hurting and he informed Supervisor
McKinney. The latter called Manager Chuck Reuther, who
asked Russell what had happened and Russell said he did not
know, he just reached to hit the button and his back started
hurting. The only thing to which he could attribute the pain
was his earlier lifting of the paper. Manager Chuck Reuther
had Russell to complete an occupational injuries form (G.C.
Exh. 3) in which Russell stated he ‘‘was not lifting anything.
He just started getting a pain between his shoulder blades.
. . . sharp pain in the back between the shoulder blades.’’
Russell testified that Reuther did not write down the rest of
his statement ‘‘that he had been lifting things earlier.’’
Thereafter, Reuther told him to go to the hospital.
Russell drove himself to the hospital and was examined by
a Dr. Shaw, who told him he had an acute dorsal strain and
he could return to work December 5. When Russell returned
to work December 5, he worked on the minipress. However,
after reaching across a stack of paper, said his back started
to hurt and Supervisor McKinney and Manager Chuck Reu-
ther sent him back to the hospital at 3:30 p.m. The same
doctor told him he had reinjured his back. Russell returned
to work at 6:30 a.m. December 18, punched into his com-
puter, and went to get his headset but noticed it was not
there. He asked Supervisor McKinney where was his head-
set, McKinney told him he would have to ask Vice President
John Reuther who is in charge of headsets. However, before
going to Reuther, he started to write a note to his supervisor
to be off the next or the following day for physical therapy.
As he finished writing the note, Russell said Warren Reu-
ther came to him and presented him with a wage change re-
quest form and told him, ‘‘Sign it, you’re being demoted.’’
He asked Warren Reuther why was he being demoted and
Reuther said Keith Higdon had more seniority and produc-
tion was down. He told Reuther they were making produc-
tion and the latter told him ‘‘sign the damn thing or leave.’’
Russell signed it. He said 2 weeks earlier, they were making
over 3000 boxes per hour and management had a production
meeting during which the production standard was raised
from 3000 to 4500. After he signed the wage change request
form, Reuther said he did not like the way he signed it and
told him to get a better attitude. As he walked away to the
press, Reuther told him his setup time was the reason he was
being demoted. However, Russell said he had previously
seen the setup time (production sheets) of everyone else and
the others were not making setup time either.
Russell said as he walked to the helper’s side of the press,
Supervisor McKinney asked him could he do the job and he
replied he had not been on the job for 1-1/2 years and it
would take a while to get back in the swing of things. War-
ren Reuther said, ‘‘If he can’t do it, we will move him down
to something he can do.’’ Managers Warren Reuther and
Rich Williams walked away. Russell gave the leave notice
to McKinney but said he was upset about what had occurred
463BAY CORRUGATED CONTAINER
and proceeded to walk to the restroom to calm himself when
Warren Reuther (15 feet away) said, ‘‘Leave, get the hell
out.’’ Warren Reuther denied he made that or any other
statement to Russell after he left Russell at his press.
Russell further testified that he understood Warren
Reuther’s order meant for him to go home so he punched out
and left the plant. He called back and told the secretary,
Sharon Campbell, he wanted a copy of the wage change re-
quest form he had been asked to sign. She told him to come
in and pick it up. When Russell went to pick up the form,
Manager Rich Williams handed it to him an he left the plant.
Russell reported to work the next day, December 19, at
6:50 a.m. and noted that his timecard was not in the rack.
He walked a few feet away where Supervisor McKinney and
Manager Warren Reuther were, and asked McKinney where
was his timecard and Manager Reuther said I have it come
with me. They went to the conference room where they were
joined by Managers Dick Tangeman, Rich Williams, and
John Reuther. Warren Reuther told Russell he had walked
off the job the previous day. Russell denied he walked off
the job but said he was ordered by Reuther to leave.
Reuther asked Manager Williams if he had told Russell to
leave the job. Williams, who Russell said he saw about 70
feet away at that particular time could not have heard
Reuther’s directive, but Williams nevertheless replied, he did
not recall Reuther directing Russell to leave. Reuther said, ‘‘I
never told you, you could leave.’’ Manager Reuther asked
Russell did he know what the Company’s handbook said
about leaving the job. Russell replied, ‘‘Yes, I do.’’ Reuther
then asked him to state what it says and he said, ‘‘If you
voluntary leave without permission, you are considered
quit.’’ Russell said he added, ‘‘I did not quit,’’ and Reuther
said, ‘‘We considered you quit.’’
Conclusions, Demotion, and Discharge
The complaint alleges that Respondent discriminatorily de-
moted Daniel Russell on December 18 and discriminatorily
discharged him on December 19 because of his union activi-
ties. Respondent denies it discriminated against Russell in
any manner and contends that Russell was demoted for busi-
ness reasons; and that Russell walked off the job on Decem-
ber 19 without permission, and the latter’s conduct con-
stitutes a ‘‘quit’’ under the Employee’s Handbook.
Although Manager Rich Williams testified he did not hear
either of the Reuthers’ order Russell to leave or get out,
former employee Scott T. Bross testified pursuant to sub-
poena that he heard a stack of papers fall and Russell ex-
claimed, ‘‘God damn it,’’ at which time, Manager Warren
Reuther waved his arm motioning Russell out, and telling
him to ‘‘get out of here, we don’t need your type,’’ and Rus-
sell walked out of the plant. No one testified about what
caused the papers to fall. Keith Higdon who was promoted
to Russell’s former position testified he did not hear or see
any subsequent conversation between Russell and manage-
ment, after Russell left the press.
While Russell’s version is essentially corroborated by
Bross, Manager Warren Reuther’s version is not because
Manager Williams simply said he did not hear anyone from
management ordering Russell to leave or to get out. Con-
sequently, Manager Reutheer’s account is not corroborated.
Bearing in mind that Russell was one of the employees man-
agement saw distributing union leaflets at the plant’s gate
and wearing union buttons over several weeks inside the
plant, I was persuaded by the demeanor of Russell and Bross
that their testimony was truthful. Correspondingly, I was per-
suaded by the demeanor of Manager Warren Reuther under
the circumstances, that his denial that he ordered Russell to
leave—get out, was not truthful.
With respect to Russell’s demotion on December 18, it is
noted that when Russell asked Manager Warren Reuther why
he demoted, the latter told him because Keith Higdon had
more seniority, production was down, and so was his setup
time. Russell denied his setup time was a problem and con-
tended they (he and others) were making production.
Conclusions
It is well established by the credited evidence or record
that employee Daniel Russell and other employees com-
menced protected union organizational activity on or about
October 10; and that Respondent learned about the employ-
ees organizing activities in early October, and specifically
about Russell’s support for the union about mid-October.
Russell also wore union buttons inside the plant until he was
discharged.
It is also well established by the credited evidence or
record, that while knowing about the employees’ protected
activities in October and November, Respondent committed
acts manifesting union animus by threatening employees with
loss of jobs and by creating the impression among employees
that their protected activities were under surveillance by Re-
spondent, all in violation of Section 8(a)(1) of the Act.
The evidence has also established, and it has been herein
found, that Respondent discriminatorily discharged employ-
ees Gibson, Bartee, and Moyur on October 24, in violation
of Section 8(a)(1) and (3) of the Act. Consequently, I further
find on all of the credited evidence of record that the General
Counsel has established a prima facie showing sufficient to
support the inference that Russell’s protected activity was a
motivating factor in Respondent’s decision to demote him on
December 18, and discharge him on December 19. Wright
Line, supra. Thus, the burden now shifts to Respondent to
demonstrate by a preponderance of the evidence that Russell
would have been demoted on December 18 and discharge on
December 19, absent any protected activity on his part.
Wright Line, supra.
Evidence of Respondent’s Affirmative Defense
At the trial Respondent verified that Higdon had more se-
niority than Russell and it admitted that production on the
minipress where Russell works was above run time stand-
ards, and close to setup time standards. Respondent’s produc-
tion records show that run time and setup time for employees
Don Hoppe and Mark Myers were down for October, No-
vember, and December, and that neither employee was
issued a verbal or written disciplinary warning. The same
was true with respect to other employees during the same pe-
riod of time. None of those employees were demoted. Hence,
the reason Respondent gave Russell for his demotion was not
true, and I find that it, and Respondent’s attempted exaggera-
tion of it at the trial, was merely a pretext to conceal any
unlawful reason on which Respondent’s decision to demote
him was based.
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
At the trial Respondent contended for the first time that
it demoted Russell for his poor attendance. Since Respondent
now asserts a new reason for demoting Russell (attendance)
which it did not give to Russell on the day of his demotion
(December 18), I have serious questions about the credibility
of Respondent’s assertions. Moreover, when the poor attend-
ance records of other employees are considered along with
Respondent’s assertion of Russell’s attendance record, I am
persuaded by the latter’s records and the demeanor of Re-
spondent’s witnesses, that this defense too is pretextual. This
conclusion is especially sound when it is also noted that
other employees with poor attendance rcords were not de-
moted, and at most, in some cases received only a verbal or
written reprimand. It is also noted that to the extent that Rus-
sell’s attendance record was poor, I find that Respondent tol-
erated his absences for nearly the duration of his working
tenure, until Russell’s open union organizing activity in Oc-
tober, November, and December, of which fact Respondent
had full knowledge. It is therefore clear, that by discharging
Russell, Respondent was wiping the slate clean and ridding
itself of the last principal union organizing leader.
Finally, Respondent contends it demoted Russell for its
suspicion of the genuineness of Russell’s workmen’s com-
pensation claim because of conflicting reports given to Re-
spondent by Russell and his physician, Dr. Shaw. However,
it is noted that Respondent never questioned Russell or in-
quired of his physician about any suspicions it entertained
about the reports of Russell’s condition and complaints prior
to its demotion and discharge of Russell. The record does not
show that Respondent ever requested to see a fuller report
from Russell or his doctor. Consequently, I find this asser-
tion is without reasonable foundation and unsubstantiated by
the evidence, and therefore pretextual and discredited.
Based on the foregoing credited evidence and reasons, I
find that Respondent has failed to demonstrate by a
preonderance of the evidence that employee Daniel Russell
would have been demoted by Respondent on December 18,
and discharged by Respondent December 19, even absent the
protected union organizing activities of Russell and other
employees, of which the Respondent was fully aware. In-
stead, I find that Respondent’s asserted reasons for demoting
Russell (his setup time, his production being down, absentee-
ism, and questionable medical reports), and that other as-
serted reason for discharging him (‘‘considered quit’’ under
the Employees Handbook) were pretextual, in an effort to le-
gally justify its actions. Wright Line, supra.
Consequently, I conclude and find on the foregoing evi-
dence and reasons that Respondent has failed to demonstrate
by a preponderance of the evidence that it would have de-
moted and discharged Russell absent any protected activities
on his part; and that the Respondent discriminatorily de-
moted Russell on December 18 and discriminatorily dis-
charged Daniel Russell on December 19, in violation of Sec-
tion 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations described
in section I above, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practice conduct in violation of Section 8(a)(1),
and Section 8(a)(1) and (3) of the Act, I will recommend that
it be ordered to cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent interfered with, restrained,
and coerced its employees in the exercise of their Section 7
rights, by threatening them with loss of jobs if they sup-
ported the Union, and by creating the impression among the
employees that their protected activities were under surveil-
lance by Respondent, in violation of Section 8(a)(1) of the
Act; and that by discriminatorily demoting and
discriminatorily discharging employees in violation of Sec-
tion 8(a)(1) and (3) of the Act, the recommended Order will
provide that Respondent cease and desist from engaging in
such unlawful conduct, and that it make the demoted em-
ployee and the discharged employees whole for any loss of
earnings within the meaning of and in accord with the
Board’s decision in F. W. Woolworth Co., 90 NLRB 289
(1950), and New Horizons for the Retarded, 283 NLRB 1173
(1987),6 except as specifically modified by the wording of
such recommended Order.
Because of the character of the unlawful labor practices
herein found, the recommended Order will provide that Re-
spondent cease and desist from, or in any like or related
manner interfering with, restraining, and coercing employees
in the exercise of their rights guaranteed by Section 7 of the
Act. NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th
Cir. 1941).
On the basis of the above findings of fact and the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. By threatening employees with loss of jobs if they sup-
ported the union, Respondent has violated Section 8(a)(1) of
the Act.
2. By creating the impression among employees that their
protected organizing activities were under surveillance by the
Respondent, Respondent has violated Section 8(a)(1) of the
Act.
3. By discriminatorily discharging employees Adam Gib-
son, Donald Moyur, and Ricky Bartee on October 24, 1990,
Respondent has violated Section 8(a)(1) and (3) of the Act.
4. By discriminatorily demoting Russell on December 18,
1990, and discriminatorily discharging him on December 19,
1990, Respondent has violated Section 8(a)(1) and (3) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
465BAY CORRUGATED CONTAINER
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Bay Corrugated Container, Inc., Monroe,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of jobs if the employ-
ees support or select the Union as their bargaining represent-
ative.
(b) Creating the impression among the employees that
their concerted or union organizing activities are under sur-
veillance by Respondent.
(c) Discouraging membership in or activities on behalf of
Amalgamated Clothing and Textile Workers Union, Chicago
and Central States Joint Board, AFL–CIO–CLC, or any other
labor organization, by discharging Adam Gibson, Donald
Moyur, Ricky Bartee and demoting and discharging Daniel
Russell, or otherwise discriminating against employees in any
like or related manner with respect to their tenure of employ-
ment or any term or condition of employment, in violation
of Section 8(a)(1) and (3) of the Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to recall Adam Gibson, Donald Moyur, and
Ricky Bartee for immediate and full reinstatement to their
former positions as of October 24, 1990, or, if those posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and privi-
leges.
(b) Offer to recall Daniel Russell for immediate and full
reinstatement to his former position as press operator as of
December 18, 1990, or, if such position no longer exists, to
a substantially equivalent position, without prejudcie to his
seniority or other rights and privileges.
(c) Make whole Adam Gibson, Donald Moyur, and Ricky
Bartee, from October 24, 1990, for any losses they have suf-
fered as a result of the discrimination against them.
(d) Make Daniel Russell whole from December 18, 1990,
for any losses he has suffered as a result of the discrimina-
tion against him.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at Respondent’s Monroe facility, located at 1655
W. Seventh Street, Monroe, Michigan 48161, copies of the
attached notice marked ‘‘Appendix.’’8 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.