Bell Halter, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1208 (N.L.R.B. 1985)

1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bell Halter, Inc. and Local 100, Service Employees
International Union , AFL-CIO. Cases 15-CA-
9484, 15-CA-9504, 15-CA-9554, and 15-RC-
7129
30 September 1985
DECISION, ORDER, AND
CERTIFICATION OF RESULTS
By MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 10 May 1985 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The General Counsel and the Respondent each
filed exceptions and a supporting brief, and the Re-
spondent filed an answer to the General Counsel's
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered" the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Bell Halter,
Inc., New Orleans, Louisiana, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
' The General Counsel and the Respondent have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F.2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
The Respondent has excepted to the judge's failure to enforce the par-
ties' preheating agreement permitting the Respondent to examine Fore-
man Brandt prior to the General Counsel's case without prejudice to
either party. The Respondent has also excepted to the judge's credibility
resolution in favor of employee Veau and against Brandt Due to the
General Counsel's failure to deliver the subpoena properly, the Respond-
ent was unable to enforce Brandt's extended attendance at the heanng
On the first day of the hearing, Brandt generally denied interrogating em-
ployees On the second day of the hearing, after Brandt had returned to
Florida, Veau testified specifically that Brandt had interrogated him The
judge credited Veau based on his general persuasiveness as a witness We
find that the admission of Veau's testimony did not prejudice the Re-
spondent, and that the judge's credibility resolution in these circum-
stances was an acceptable one
In agreeing with his colleagues that the Respondent was not prejudiced
by the judge's crediting of employee Veau, Member Babson notes that
the Respondent did not avail itself of its right to recall Brandt for rebut-
tal testimony
In addition, in adopting the judge's findings with regard to the 8(a)(1)
allegations, Member Babson does not rely on the judge's statements with
respect to the subjective reaction of the employees who were questioned
by Respondent
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Local 100, Service Em-
ployees International Union , AFL-CIO and that it
is not the exclusive representative of these bargain-
ing unit employees.
Michael N. Petkovich, Esq., for the General Counsel.
Horace A. Thompson, III and William T. Carlson, Esqs.
(McCalla, Thompson, Pyburn & Ridley), of New Orle-
ans, Louisiana, for the Respondent.
Francis King, of New Orleans, Louisiana, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
These cases were tried at New Orleans, Louisiana, on
25-27 February 1985. The charge in Case 15-CA-9484
was filed by Local 100, Service Employees International
Union, AFL-CIO (the Union), on 17 October 1984,' and
amended 28 November. The charge in Case 15-CA-9504
was filed by the Union on 2 November and amended 28
November. An order consolidating Cases 15-CA-9484
and 15-CA-9504 for heanng was issued with a consoli-
dated complaint and notice of hearing on 28 November.
The consolidated complaint alleged that Bell Halter, Inc.
(Respondent or the Company) violated Section 8(a)(1) of
the National Labor Relations Act (the Act), through acts
and conduct of its supervisors and agents The charge in
Case 15-CA-9554 was filed by the Union on 26 Decem-
ber and a complaint was issued in that case on 24 Janu-
ary 1985, alleging violations of Section 8(a)(3) and (1) of
the Act by Respondent in the discharge of its employee
Luke Saavedra (Saavedra). Also on 24 January 1985, an
order was issued by the Regional Director for Region 15
consolidating Cases 15-CA-9484 and 15-CA-9504 for
hearing. An amendment to the consolidated complaint in
Cases 15-CA-9484 and 15-CA-9504 issued on 25 Janu-
ary 1985, and further amendments of the complaints in
these cases were allowed and made by the General
Counsel at the hearing. Respondent denied in its answers
and at the hearing that it violated the Act in any respect.
Docket entries for Case 15-CA-7129 reveal that the
petition was filed by the Union on 22 October and a
Stipulation for Certification Upon Consent Election was
executed by Respondent and the Union on 2 November,
providing for an election in a unit of production and
maintenance employees with certain exclusions. The
election was held on 14 December and the tally of bal-
lots revealed that of approximately 334 eligible voters; 81
votes were cast for. the Union and 241 against, with 2
void ballots and 4 challenged ballots. On 21 December,
the Union filed timely objections. On 25 January 1985,
the Regional Director for Region 14 issued a report on
objections in which he noted that the Union had with-
All dates are in 1984 unless otherwise specified
276 NLRB No. 136
BELL HALTER, INC 1209
drawn certain of its objections and in which he conclud-
ed that the remaining objections Avere encompassed
within the outstanding unfair labor practice charges by
the Union, and the outstanding consolidated complaint,
as amended, in Cases 15-CA-9484 and 15-CA-9554. Ac-
cordingly, the report on objections included an order
consolidating for hearing the remaining objections of the
Union, specifically Objections 5, 15(a) and (c), and 20,
with the unfair labor practice allegations.
The primary issues presented by the consolidated cases
are whether Respondent: (a) unlawfully interrogated its
employees concerning their union activities, (b) main-
tained and 'enforced unlawfully broad no-distnbution
rules, (c) unlawfully solicited employees' complaints and
grievances and promised to resolve them in order to dis-
courage employee union activity, (d) gave a discrimina-
tory performance evaluation to employee Saavedra be-
cause of his union activities, and (e) discharged Saavedra
-for such activities.
On the entire record,2 including my observation of the
witnesses, and after due consideration' of the briefs filed
by the General-Counsel and Respondent, I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, is a joint venture
between Bell Aerospace and Halter Marine, and is en-
gaged in business in a facility in New Orleans, Louisiana,
where it manufactures watercraft. During the 12-month
period preceding issuance of the complaints, Respondent
derived gross revenues in excess of $500,000 from the
operation of its facility. During the same period of time,
Respondent purchased and received at its facility goods
and materials valued in excess of $50,000 directly from
points located outside the State of Louisiana. The com-
plaints allege, Respondent admits, and I find that Re-
spondent is an employer within the meaning of Section
2(2) of the Act engaged in commerce within the meaning
of Section 2(6) and, (7) of the Act. The complaints fur-
ther allege, Respondent further admitted at the hearing,
and I also find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES.
A. The Alleged Unlawful Interrogation
It is undisputed that the Union's campaign to organize
Respondent's approximately 334 production and mainte-
nance employees began in late September. The' Union's
campaign became an open one on 18 October when the
2 Respondent's postheanng motion to correct the transcript , dated 29
March 1985, is received in evidence as R Exh 70 The General Counsel
filed a partial opposition dated 11 April 1985 to Respondent's motion
That'partial opposition is received as G.C Exh 18 The General Coun-
sel's opposition does not appear to be based on any contention that Re-
spondent 's motion does not accurately correct transcript errors or omis-
sions Respondent 's motion to correct the transcript is therefore granted
Respondent 's further motion, contained in its motion to correct tran-
script, to receive in evidence R Exh 38, identified at the hearing is, in
the absence of opposition from the General Counsel, granted
Union, through a letter to Respondent on that date, re-
quested recognition as the collective-bargaining repre-
sentative of the production employees. The letter was
signed by about 29 employees for.the "organizing com-
mittee " It appears, however, that even prior to the time
of the Union's letter, Respondent was aware of the orga-
nizing drive because James Steadman, Respondent's then
vice president of operations, testified that he first learned
of the union, activity in late September or early October
and then consulted a labor attorney. As a result of that
consultation, Respondent took the initial position that in-
dividuals employed as leadermen were not supervisors
within the meaning of Section 2(11) of the Act Howev-
er, Respondent on. 15 October changed law firms and
with that change came a change in position on leader-
men with Respondent thereafter taking the position that
leadermen were supervisors. Further, Respondent stipu-
lated that leadermen were supervisors beginning as of 31
October. The issue as to the supervisory status of the lea-
dermen is important herein because of conduct allegedly
violative of Section 8(a)(1) of the Act attributed to them
and also because of their implication in the 8(a)(3) viola-
tions alleged in the discharge of Saavedra.
The earliest alleged violations of Section 8(a)(1) in-
volve interrogation of employees concerning their union
activities by not only a leaderman but also a foreman.
Thus, the consolidated complaint alleges Foreman
Eugene Brandt interrogated employees regarding their
union activities on 12 and 17 October, and alleges that
leaderman Warren Danner interrogated employees on
the subject of the Union in late September as well as on
12 October.3
There was no evidence presented with respect to inter-
rogation by Danner in late September. The General
Counsel in brief moved to withdraw the complaint alle-
gation on this issue , and that motion is granted. Howev-
er, employee Daniel Veau, an active. union supporter,
testified that on 12 October, while on his job, Danner
came to him around 4 p.m. and asked him if he had
heard the new saying about, "Look for the.Union label
on the boat." Veau testified that he responded by asking
Danner what Danner felt about the Union.-Danner re-
plied that he could -not answer because of-his position.
Veau then remarked that because of the course the Com-
pany was taking and the way the employees were being
treated, Veau could see why a union would be needed.
Danner then asked Veau how did "it all-get started."
Veau testified he replied honestly as a friend that he was
the one who contacted the Union. To this, Danner asked
if he knew what he was doing and Veau responded af-
firmatively. The conversation ended at that point.
Danner, testifying for Respondent, denied any interro-
gation of Veau. He could recall no specific conversations
with Veau with any certainty other than that involving
the distribution of union literature discussed infra. How-
ever, Danner admitted that he talked to employees about
the Union when they came up to him to talk about it.
3 Since these alleged violations occurred prior to the filing of the peti-
tion in Case 15-RC-7129 and outside the critical objections period, there
is no contention that they constituted conduct interfering with the elec-
tion
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some of these discussions may or may not have occurred
during that period of time when the status of the leader-
men as supervisors had not been finally resolved.
Veau's testimony impressed me as candid and forth-
right. His recollection was detailed and appeared clearer
than that of Danner. I therefore credit Veau where his
testimony contradicts Danner and, based on Veau's testi-
mony, I find Danner did -ask Veau how the Union got
started.
The General Counsel argues that Danner's question
was clearly coercive, while Respondent, relying on Ross-
more House, 269 NLRB 1178 (1984), argues that even if
Danner did ask Veau the question alleged, it was non-
coercive as evidenced by Veau's honest answer to
Danner . Further, Respondent suggested at the hearing
that because this questioning took place at a time, as ad-
mitted by Veau, when the supervisory status of leader-
men was not established, it could not be viewed as coer-
cive. -
In Rossmore House, the Board, rejecting a per se ap-
proach in determining violations of the Act involving
unlawful interrogation, ruled that it would decide unlaw-
ful interrogation issues on the basis of "whether under all
the circumstances the interrogation reasonably tends to
restrain , coerce,- or interfere with rights guaranteed by
the Act." -
Considering all-the circumstances of Danner's interro-
gation here, I am persuaded that it was not likely to have
had a coercive effect. In reaching this conclusion, I first
note that Danner's supervisory status was in issue at the
time of the 'questioning. Union authorization cards were
being solicited from some leadermen during this period
according to employee Wesley Goostrey who testified
for -the General Counsel and before their supervisory
status was known. While the authority and functions of
the leadermen remained constant at all relevant times so
that it may be inferred that they were always supervi-
sors, their status as supervisors was not resolved in the
eyes of the employees until late October. Thus, it is not
clear that Veau considered Danner's question to him to
be one emanating from a supervisor. Moreover, Veau's
own testimony demonstrates that he did not view Dan-
ner's question as a coercive one, but, rather, a friendly
one to which he was freely willing to respond honestly,
for he testified he replied "honestly as a friend." Finally,
Danner's question was unaccompanied by a threat of re-
prisal or promise of benefit. Under all these circum-
stances, in agreement with the arguments of Respondent,
I find Danner's question of Veau was not coercive -and
'did not violate Section 8(a)(1) of the Act. -
The General Counsel also relies on the testimony of
Veau to establish the unlawful interrogation allegedly
committed by Foreman Brandt. Veau related that on 12
-October, before the remarks of Danner set forth supra,
Brandt came to Veau's work position on boat number 2,
and asked Veau what he thought about this "shit." Veau
responded that he had never thought of joining -the
Union but noted the way the Company was treating the
employees and the absence of a raise for 2 years and he
could - see why a union was needed . Brandt replied that
Veau was making a big mistake to which Veau.remarked
that everybody was entitled to their own opinion. No
evidence was adduced to support the complaint allega-
tion regarding interrogation by Brandt on 17 October.
Brandt, a resident of another State and no longer an
employee of Respondent at the time of the hearing, was
called as a witness by Respondent, but with the acquies-
cence of the General Counsel, was put on the stand out
of order and prior to the General Counsel's case so that
he could return home after the completion of the first
day of the hearing. Accordingly, Brandt testified before
Veau at a time when Respondent was not aware of the
specific evidence the General Counsel was relying on to
establish the alleged violation. Accordingly, Brandt did
not specifically deny asking Veau the questions claimed
by Veau. Although he generally denied interrogating
employees, he admitted that he had_ talked to an employ-
ee, Jules Reggio, about the Union. :More specifically,
Brandt testified that he told Reggio at work he was talk-
ing to him as,an uncle and not a foreman. Brandt said he
wanted Reggio to get his head straight ,before he did
something like joining the Union. Brandt admitted that
he asked Reggio if he signed a "card." When Reggio re-
plied that he had not, Brandt asked him to think and
listen to both sides before he did anything like that. Fur-
ther, Brandt testified he told Reggio, "I'd like to have
you get-you know your-head straight before you do
anything that might endanger, you know, you do some-
thing, you know, like joining the Union, and this was me
speaking, not a supervisor at the yard." The General
Counsel, in his brief, argued that the above statement ad-
mitted by Brandt constituted a threat and moved to
amend the complaint to allege it as a violation of Section
8(a)(1) of-the Act.
it is not, entirely clear from Brandt's testimony when
the conversation with Reggio took place. In view of its
content, however, it seems reasonable to conclude it took
place before the Union's dispatch of the 18 October
letter to Respondent signed-by the organizing committee,
including Reggio. .
As already indicated, I found Veau to be a persuasive
witness. Because of this persuasiveness, I credit Veau re-
garding the remarks he attributed to Brandt The circum-
stances surrounding Brandt's questioning of Veau are
markedly. different from those involved in the Danner
situation above. First, there was no issue regarding
Brandt's supervisory status at the time of his remarks to
Veau. Secondly, Veau's response to Brandt's question
was insincere to the extent it indicated no prior union
support and somewhat equivocal regarding future union
support. Thus, Veau's response suggests the recognition
of some pressure in the exchange with Brandt. Lastly, no
friendly relationship between Brandt and Veau which
might serve to soften the impact of Brandt's question
was shown to exist. Although no threat accompanied
Brandt's question, the manner in which Brandt broached
the subject of the Union to Veau left no question regard-
ing Brandt's extreme displeasure with the prospect of
union organization. That distinct displeasure, coupled
with the expression that Brandt thought Veau was
making a mistake, lends a coercive tone to the setting
which, I conclude, makes Brandt's question of Veau vio-
lative of Section 8(a)(1) as alleged.
BELL-HALTER, INC 1211
Respondent relying on Garrett Flexible Products, 270
NLRB 1147 (1984), argues that Brandt's admitted ques-
tioning of Reggio was not coercive given the familial re-
lationship between the two. In the Garrett case, a super-
visor while at home watching television with a brother-
in-law , an employee of the same employer, asked the
brother-in-law about a union - meeting. The Board con-
cluded that given the familial relationship between the
two and the circumstances in which the question oc-
curred, the question was not coercive. Although the
question of Reggio here took place at work rather than
away from the plant, based on Brandt's testimony which
is the only evidence on the subject, Brandt made it clear
to Reggio that he was speaking as an uncle, not as a
foreman . There is no way of determining whether
Reggio gave a truthful answer at the time nor is there
any other evidence to show that Reggio would have per-
ceived Brandt's question -as coercive notwithstanding
Brandt 's assurances he was speaking as an uncle. Under
these circumstances , and in view of the familial relation-
ship, I find the evidence insufficient to establish that
Brandt's questioning of Reggio was coercive.
Regarding the General Counsel's contention that
Brandt 's remarks to Reggio contained a threat which he
now seeks to amend the complaints to include, it is" well
established that the Board may find and remedy a viola-
tion of the Act even in the absence"of a specific allega-
tion in the complaint so long as the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated. Crown Zellerback-Corp., 225 NLRB-
911, 912 (1976); Rochester Cadet Cleaners, 205 NLRB 773
(1973). Here, the legality of Brandt's remarks have been
put in issue by the complaint with respect to interroga-
tion. Moreover, evidence of the violation now urged is
contained in Brandt's testimonial admission . Timken Co.,
236 NLRB 757 (1978). Accordingly, I conclude the
amendment must be allowed. On the other hand, it ap-
pears that Brandt's remarks were too vague, disjointed,,
and incomplete to substantiate a finding that he made an
unlawful threat to Reggio. The only word used by
Brandt which had a threatening connotation was the
word "endanger" but it is not clear what was endan-
gered and it would be speculative to conclude that he
was implicitly threatening Reggio with a loss of his job -
or other reprisals. Brandt was asked no questions at the
hearing regarding his use of the word. I conclude, there-
fore, the evidence is insufficient to find that Brandt un-
lawfully threatened Reggio in violation of the Act.
B. The Alleged Promulgation, Maintenance, and
Enforcement of an Unlawful No-Distribution Rule
The consolidated complaint alleged that Respondent
maintained an overly broad no-distribution rule which
prohibited employee distributions on company property
without authorization. The complaints further alleged
that certain supervisors of Respondent orally promulgat-
ed and enforced overly broad no-distribution rules on 1
and 2 November, to the detriment of the employees' Sec-
tion 7 rights.
It is initially- clear that -Respondent did maintain, at all
relevant times , rules of personal conduct for all employ-
ees. A list of these rules were required to be read and
signed by each employee. Violation of any of the rules
provided sufficient grounds for disciplinary action. Rule
46 barred "distributing literature, illustrated; written, or
printed matter of any description on Company premises
during working hours- without authorization of manage-
ment." The rule is so broadly stated to clearly bar any
distribution of union literature in nonworking areas of
the plant by employees during nonwork"time without au-
thorization. As such, the rule on its face presumptively
violates Section 8(a)(1) of the Act. See United Pacific In-
surance , 270 NLRB 981 (1984); United Aircraft Corp., 139
NLRB 39 (1962); enfd. 324 F.2d 128 (2d Cir. 1963), cert.
denied 376 U.S. 951 (1964). Respondent concedes as
much but argues, infra, that the rule was, in' effect, super-
ceded by' a lawful rule and never enforced.
With respect to the promulgation and enforcement of
the unlawfully broad no-distribution rule, the General
Counsel relies on the testimony of employees Veau and
Goostrey. Goostrey testified that on 1 November he was
passing out union literature in the plant cafeteria to em-
ployees there prior to worktime. He was stopped by
Foreman Robert Mahne who told him he would have to
take Goostrey's leaflets from him. When Goostrey asked
why, Mahne replied only that it was company policy.
The two then proceeded to the office of Alvin Webre, -
Respondent's administration manager , to obtain an envel-
op in which to put Goostrey's leaflets. Goostrey surren-
dered the leaflets to Webre stating he did not want to
cause any trouble and then proceeded to work. After
work Goostrey•consulted with Organizer Wade Ratlike
who advised him that it was permissible ' to distribute
union literature on nonworking time. Goostrey conceded
herein that-from Ratlike's comments he understood that
employees could distribute materials anywhere on Re-
spondent's premises so long as the distribution- was not
on working time. The General Counsel asserts that the
restriction of Mahne, who did not testify, on Goostrey
constituted promulgation of an overly broad no-solicita-
tion rule. Moreover, Mahne's confiscation of Goostrey's
literature was also claimed to be unlawful.
Veau also testified regarding restrictions imposed on
him by leaderman Danner on 1 November. Veau related
that on that date about 5 minutes before his starting time,
he was-in his work area with some union newsletters
when Danner approached' him and told him to put the
newsletters away, that he could not be giving them out
on company property. Veau insisted he knew his legal
rights and he could distribute the newsletters. Danner re-
plied that company rules prohibited it and stated he
would show Veau a copy,of the rules. According to
Veau, Danner left and when he returned, he showed
Veau a copy of rule 46. Veau suggested that Danner talk
with Steadman and check with their lawyers. Danner re-
plied that he had checked with them. Veau went on to
-work. While the consolidated complaint alleges that
Danner also confiscated union materials, there was no
evidentiary support submitted for the allegation.. Veau
testified only that he had left the union newsletters with
his lunch in the work - area and - when he returned the
newsletters were gone.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Danner denied confiscating any newsletters. from
Veau. Further, although he admitted talking to Veau
about Respondent's distribution policies, he testified he
told Veau that according to company policy Veau could
not distribute during working time or in the work area
where he had the newsletters. But upon a further ques-
tion of Respondent's counsel regarding whether , he. told
Veau it was against company policy to distribute litera-
ture at all, Danner replied affirmatively, but added, "it
was in a work area during work time." He did not spe-
cifically deny showing Veau a copy of rule 46.
Goostrey and Veau both testified regarding further re-
strictions on distributions occurring on 2 November.
Having confirmed with Ratlike his right 'to distribute
union literature, Goostrey testified that before work on 2
November, he attempted again to distribute literature in
the cafeteria. Admittedly his distribution efforts included
the cafeteria employees who were working in' the cafete-
ria.' Again Foreman Mahne approached him and told
Goostrey he would have to ask him for the leaflets, but
the record does not show whether this occurred when
Goostrey was distributing to any cafeteria employees.
Goostrey then surrendered the leaflets to Mahne still in-
sisting he had a right to distribute them. Then Goostrey
suggested that Mahne check with Respondent's lawyers,
but Mahne did not respond-to the suggestion. Veau then
entered the cafeteria and he and Goostrey. then proceed-
ed to the office to Jimbo Parker, Respondent's yard man-
ager. Steadman was present. Goostrey testified that he
told Parker and'Steadman that he and Veau were having
trouble distributing their union material and Steadman
responded it was company policy not to allow distribu-
tion of leaflets or pamphlets of any kind. When Goostrey
and Veau replied that their understanding was that they
were allowed by law to distribute on their own time,
Steadman replied, according to -Goostrey, "something"
about the Company could not allow leaflets to'.be distrib-
uted throughout the facility. In any event; the meeting
concluded with Steadman agreeing to check with the
lawyer about the matter. Veau's testimony was generally
in accord with that of Goostrey.
Steadman, testifying for Respondent, did not specifi-
cally contradict the testimony of Veau or Goostrey. He
admittedly met with them on 2 November and talked to
them regarding their position that they understood they
had a right to distribute union material in the cafeteria.
Steadman testified he replied that that was not his-under-
standing but added that he would check into it with Re-
spondent's labor attorney. Parker testified for Respond-
ent but did not testify concerning the meeting with
Goostrey and Veau.'
It is undisputed that.Steadman did check with Re-
spondent's counsel and, as a result of that consultation,
Steadman prepared a notice to employees' dated 5 No-
vember, stating as follows:
Last week, we curtailed the distribution' without au-
thorization of•literature of Dan Veau and Wesley
Goostrey to determine whether such distribution
was taking place during working time or in working
areas in violation of our no-distribution rule or was
creating a special housekeeping problem. We deter-
mined that the distribution was taking place in the
cafeteria before work and the manner of distribution
was presenting no special problem.
Accordingly, we specifically authorize Veau and
Goostrey, or any other employee, to distribute liter-
ature on their own time (lunch, before work, etc.)
in non-work areas such as the cafeteria or parking
lot. Any employee who distributes literature. in a
working ' area at any time or while the person dis-
tributing or the person - receiving the literature
should be working-will be disciplined.
It is similarly undisputed that Respondent made an effort
tb bring this notice to the attention of all its employees
by having supervisors require that-employees read and
sign the notice. - Veau refused to sign the notice' but ad-
mitted that he read it. Veau also admitted that on 2 No-
vember, around 11:30 a.m., he was told by Foreman
Brandt that Steadman had said that the employees could
distribute newsletters before work, during lunch, and
after work, but did not specify places where distribution
would be allowed.
The General Counsel on the foregoing evidence con-
tends ,, and the complaints allege , Danner and Mahne
orally promulgated and enforced an excessively broad
no-distribution rule, and that Steadman and Parker also
orally promulgated and enforced an overly broad no-dis-
tribution rule in their discussion with Goostrey and Veau
or !.2 November. He further contends that Respondent's 5
November notice to the employees did not 'constitute a
revocation of rule 46 but simply constituted an authoriza-
tion of distribution during certain times and at certain
places as required under rule 46.
Respondent contends it did not promulgate, maintain,
or enforce an overly broad rule, and, on -the contrary,
claims rule 46 was rescinded not only by Respondent's 5
November notice to its employees but also earlier on 23
October when Respondent distributed to its supervisors a
"Confidential and Personal Statement of Our Union-Free
Policy," a' multipage manual, which. -contained a pre-
sumptively lawful no-distribution rule. Specifically, the
"new rule" states that "Employees may not distribute
any literature or materials in any working area at any
-time or at any time when they. are required to be per-
forming their work." According to Steadman's testimo-
ny, the supervisors were told the new-rule superceded
the old rule, and he further- testified, on the basis of un-
corroborated hearsay, that supervisors then told the em-
ployees about the new rule.
I am unable to credit Steadman's claim that the new
no-distribution rule was "explained" to "all supervision"
on 23 October. Steadman was not corroborated on this
point by any other witness, even though a number of su-
pervisors testified herein and could have been expected
to corroborate him if his testimony on this point was ac-
curate. Further, if supervisors had explained the "new"
rule to employees, it is unlikely Steadman would had
found it necessary. to issue the 5 November notice to em-
ployees specifically "authorizing" distributions at certain
times and places. Moreover, I note that Respondent's
"new" rule does not refer to the prior no-distribution
BELL HALTER, INC. 1213
rule and does not specifically revoke or: rescind it. The
"new" rule does not specify where distributions may be
permitted and consequently does not effect the broader
"old" rule restricting all distributions on company prem-
ises during working hours. Finally, -the conduct of Stead-
man, Mahne, and Danner is inconsistent with any under-
standing of a "new" no-distribution rule. On the con-
trary, their undisputed conduct was more consistent with
enforcement of Respondent's unlawful and invalid no-
distribution rule 46. Thus, there is no contention that
when Mahne stopped Goostrey's distribution on 1 and 2
November, he explained to Goostrey that the cafeteria
was a work area . And while Goostrey admitted herein
that he had made distributions to-working cafeteria em-
ployees on 1 and 2 November, there was no evidence
that such distribution was the - predicate for Mahne's
action or that Mahne even knew that Goostrey had dis-
tributed materials to cafeteria employees.- When Goos-
trey and Veau went to see Steadman on 2 November
about the restraint imposed on their distributions, Stead-
man in his remarks to them made no claim that the cafe-
teria was regarded as a working area. If it was a genuine
issue, it seems likely Steadman would have alluded to it,
but even his testimony makes no claim that he did so.
Further, if Steadman was seeking to enforce a "new"
lawful no-distribution rule, he would- have mentioned it
or would have taken the occasion to explain or define to
Goostrey or Veau any "new"• rule. He did not do so.
Under these circumstances, I conclude that Respondent
raised a false issue regarding the work area status of the
cafeteria -as an afterthought to justify its initial barring of
union distributions there and the confiscation of union
materials from Goostrey. The barring of distribution in
the cafeteria and the confiscation of the union literature-
would normally -warrant the finding of an 8(a)(1) viola-
tion
Veau's testimony, which I again credit over Danner's,
reveals that Danner's conduct was a clear republication.
of Respondent's rule- 46. In fact, Veau's testimony that
Danner relied on rule 46 and showed Veau a copy of the
rule was not specifically contradicted by Danner..
I conclude from the foregoing that on 1 November,
Danner could. lawfully restrict Veau from distributions in
a work area, but to the extent he relied on rule 46 which
prohibited any unauthorized distributions on company
premises , he emphasized and enforced an unlawfully
broad no-distribution rule. Similarly, as found above,
Mahne and Steadman"enforced the same overly broad
rule in prohibiting distributions of Goostrey and Veau on
1 and 2 November.4 Such conduct under normal circum-
stances would warrant a finding of a violation of Section
8(a)(1) by Respondent.
Respondent argues that no adverse consequences re-
sulted to any employee as a result of the incidents on 1
and 2 November. According to Respondent, employees
were allowed to resume distributions in the cafeteria at
4 Although the complaint alleges Yard Manager Parker also orally
promulgated and enforced an overly broad no-solicitation rule, no evi-
dence was submitted that he did so It appears he only witnessed Stead-
man's-comments to Goostrey and Veau , and made no comments himself
Accordingly, the complaint allegation with respect to Parker must be dis-
missed for lack of evidence '
lunch on 2 November and were not thereafter impeded.
Finally, Respondent claims that Steadman's 5 November
notice cured any dispute that might have existed regard-
ing employee distribution rights, and that under the
standards enunciated in Passavant Memorial Area Hospi-
tal, 237 NLRB 138 (1978), Respondent has successfully
repudiated any unlawful conduct. -
In Passavant Memorial Area Hospital, the Board out-
lined circumstances under which an employer may be
said to have successfully repudiated earlier unlawful con-
duct to relieve himself of liability for such conduct. The
Board stated at 138: -
To. be effective, however, such repudiation must be
"timely," "unambiguous,". "specific in nature to the
coercive conduct," and "free from other proscribed
illegal conduct." Douglas Division, The Scott &
Fetzer Company, 228 NLRB 1016 (1977), and cases
cited therein at 1024. Furthermore, there must be
adequate publication of the repudiation to the em-
ployees involved and there must be no proscribed
conduct on the employer's part after the publica-
tion. Pope Maintenance Corporation, 228 NLRB 326,
340 (1977). And, finally, the Board has pointed out
that such repudiation or disavowal or coercive con-
duct should give assurances to employees that in
the future their employer will not interfere with the
exercise of their Section 7 rights. See Fashion Fair,
Inc., et al., 159 NLRB 1435, 1444 (1966); Harrah's
Club, -150 NLRB 1702, 1717 (1965).
Respondent, it appears, did comply with most of the
Passavant standards here. Respondent's notice to employ-
ees was timely, it was specific regarding - the incident
which gave rise to the notice, the record--shows no fur-
ther restrictions on employee distribution rights, and the
notice was adequately publicized to employees. Further,
the notice was unambiguous in the sense that it author-
ized employees to distribute literature in nonwork areas
on nonwork time. There are, however, no assurances
against future interference with employee Section 7
rights. And as the General Counsel points out, there is-
no specific repudiation of old rule 46. On the contrary,
rather than repudiating' the old rule, the 5 November
notice implicitedly reaffirms it by granting employees the
authorization for distribution the old rule requires.
Keeping in mind that Passavant standards are not to be
applied in a "highly technical or mechanical manner"
and that voluntary remedial action by employers is to be
encouraged, Broyhill Co., 260 NLRB 1366 (1982), I am
nevertheless constrained to the view that Respondent has
not successfully repudiated its unlawful conduct. In the
eyes of the employees, rule 46 remains intact and unaf-
fected by Respondent's 5 November notice. The effect of
the notice is simply to create the impression among em-
ployees of benevolence on the part of Respondent in au-
thorizing that which it could not under normal circum-
stances have lawfully prohibited in any event. Rather, by
granting -authorization for lawful distributions, Respond-
ent's notice suggests that authorization is not a matter of
right and' is subject to withdrawal.- Consequently, and be-
cause the notice contains no assurances that Respondent
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will not subsequently interfere with the employees' exer-
cise of their Section 7 rights in connection with the
lawful distribution of union literature in nonwork areas
on company -premises on nonwork time, it cannot.be said
that the 5 November, notice meets the Passavant stand-
ards. Moreover, there are no assurances that new em-
ployees hired subsequent to 5 November will not be re-
quired to read and understand Respondent's old list of
rules concerning employee conduct including rule 46.
Considering all the foregoing, I conclude that Respond-
ent has not successfully repudiated its -unlawful conduct
of maintaining rule 46 and -enforcing it through the' ac-
tions of Danner, Mahne, and Steadman on 1- and 2 No-
vember. I find that by maintaining and enforcing • the
"old" rule by confiscating union literature' in enforcing
the rule, Respondent violated Section 8(a)(1) of the Act
as alleged. I do not find, however, that actions of Stead-
man, Mahne, and Danner constitute independent promul-
gations of an overly- broad no-distribution rule, as the
General Counsel argues. It is clear, in my view, that they
were simply enforcing rule 46, a rule of longstanding. -
C. The Alleged Unlawful Solicitation of Grievances
and Promises to Resolve Them -
The complaint, as amended, alleged that on 7, 8, and 9
November, Respondent solicited employees' complaints
and 'promised to. resolve them by responding to com-
plaints about the inability of employees to review their
performance evaluations and to communicate with man-
agement. To support this allegation, the General Counsel
relies solely on the testimony of alleged discriminatee
Saavedra who testified , that Respondent conducted an
employee survey on 7 and 8 November designed to as-
certain employee grievances. According to Saavedra,
who could recall no prior, surveys, following the survey
Repondent held a -meeting of employees in the cafeteria
where Steadman thanked employees for their coopera-
tion in the . survey and introduced Wilmar_ Richard,, the
consultant. who had conducted the survey.', Richard
spoke to employees and identified the major employee
grievances disclosed by the survey as lack of respect
from management and supervision, lack of communica-'
tion, unevenly administered discipline, and' an unfair
evaluation and promotion system. Richard said that he.
had made his recommendations to management and that
"hopefully" they, would ' do something to • correct the
grievances. Steadman, still according to Saavedra, then
spoke to the employees and thanked Richard for opening
the Company's • eyes. He added that Respondent would
continue to strive to be within the top five in 'the indus-
try in the area of wages and benefits, and that he was
going to invoke 'a "new" open-door policy, that employ-
ees could come see him, Parker, or Webre at any time.
Pressed further through leading questions for additional
remarks by, Steadman, Saavedra testified that -Steadman
said that from then on employees • would be able to see
their evaluations by asking their leaderman or foreman to
see them and go over. it with them. Saavedra testified he
had never previously been shown his evaluations.
Regarding an additional complaint allegation that
Steadman on 12 December made oral promises of bene-
fits to employees, Saavedra testified that Steadman on 12
December at a chicken dinner given the employees in
the plant told employees in the context of a 30- to 45-
minute' speech that from -the employee survey his eyes
had been opened, that employees did, not have to vote
for the Union to -open his eyes to problems, that they
could be more efficient and. productive in a union-free
shop, and that emloyees did not have to vote yes dust to
spite him or prove a point. .
The General Counsel argues from the foregoing evi-
dence that Respondent altered its past practices regard-
ing the conduct of employee surveys in order to adverse-
ly effect the union campaign in violation of Section
8(a)(1) and that Respondent promised to resolve -griev-
ances by initiating the new policies announced by Stead-
man on 9 November. Moreover, the General' Counsel as-
serts that Steadman also violated Section 8(a)(1) by indi-
rectly promising -employees on 12 December that their
grievances would be resolved if they did not select the
Union to represent them.
Respondent's evidence regarding these allegations rests
primarily on the testimony of Steadman, Richard,
Webre, Parker, and Leonard Morgan, director of em-
ployee relations of Bell Aerospace, one of; Respondent's
parent companies. Steadman, who had. left Respondent's
employ prior tothe hearing, testified that the 1984 em-
ployee attitude survey was - an annual survey ' and was
routine. Respondent had conducted a similar survey in
September 1983; but the consultant, used had been dictat-
ed by one-of ,Respondent's .parent companies and- had
proved to be unsatisfactory. Notwithstanding repeated
efforts to obtain a final report from the consultant, such
report 'was not completed and submitted to Respondent
until September 1984, although the original understand-
ing with the consultant was .that the report was to be
submitted by 14 October 1983. As a consequence of the
late report , there was no feedback to employees 'on the
1983 survey . ' Steadman , after checking ' with counsel, de-
cided to proceed with the 1984 survey and,hired Richard
for that survey . Richard , testifying for Respondent, con-
ceded that he was contacted by Respondent on Monday
and hired to conduct the survey the next Wednesday or
Thursday with a preliminary report to be given on
Friday, .9 November.5
It is undisputed that Richard distributed written ques-
tionnaires to employees in the survey. It is further undis=
puted that the questionnaire was distributed along with a
cover letter signed by Steadman dated 7 November ex-
plaining- that the survey was a repeat of the process
begun the preceding September by another firm, that Re-
spondent was disappointed by the report from the prior
survey which was not received until September 1984,
that responses to the survey would-be anonymous, and
that Richard's survey would be concluded in 1 week
with a summary report to all employees. The letter fur-
ther contained, the following statements:
Morgan in his testimony testified with some uncertainty that he ini-
tially contacted Richard about 3 weeks before the survey. In view of this
uncertainty, Richard is credited regarding the initial contact. -
BELL HALTER, INC
The National Labor Relations Act provides that
the Company cannot, • by this survey, make any
promise of change and/or increase of benefits nor
improvements and/or changes of -working condi-
tions.
This survey is not intended to coerce, interfere
with, or restrain any employee in the exercise of
their rights to join or oppose any union, and to be
free of undue pressure or intimidation.
At the top of the first page of the survey questionaire,
the following language was typed in capital letters:
This questionaire does not imply that the Company
will be making or promising any changes in em-
ployees wages, benefits, or working conditions. Par-
ticipation in this survey is voluntary.
Steadman admittedly introduced Richard to the em-
ployees during Richard's summary report' on 9 Novem-
ber. In making that introduction, he testified he' read
from a prepared text in which. he again referred to the
survey of the prior year which took "until September of
this year to get back to us- with a report," and explained,
"That's why we couldn't get back back to you before
this Union trouble got started." Richard testified he then
gave a summary of his findings to employees after which,
Steadman told employees that the biggest surprise for
him was to find out employees believed there was an
upward communication problem. According to the text
of Steadman's remarks, which was corroborated by
Richard, Steadman added, "That's exactly the reason we
hired Wil, to help us continue to create an environment
where employees and management can frankly discuss
their concerns and can candidly address those concerns."
However, Steadman went on to state:
When a union comes around, many laws and rules
prohibit. companies from changing things. 'Unions
often claim in elections that companies aie trying to
bribe the workers. I assure you we will not bribe
you, but will continue to make any lawful oper-
ational change we believe is necessary. That's why
we've hired the best legal team-so they can tell us
exactly what legal rights we have to continue to im-
plement the changes we believe are necessary to the
success of this business. We're not going to change
things we cannot legally change. We will make the
changes we. legally can and we will make them-
promptly.
Today, I can't tell you what changes we will make
because we must sit down with our attorney to de-
termine which of them are lawful. I, personally,
assure you that I will come back before you soon to
announce those changes we believe are lawful and
necessary.
There was no evidence or contention that any subse-
quent announcements of changes were made to employ-
ees. And Steadman specifically denied that in the meet-
ing with employees on 9 November he referred-to a new
open-door policy. That denial was supported by Morgan
who testified, that Steadman did not mention an open-
1215'
door policy Morgan also supported Steadman's further
denial that he made any reference to allowing employees
to review their personnel evaluations. In any event,
Steadman testified that Respondent had always had an
"open-door" policy as well as a policy of allowing em-
ployees to review their evaluations. In support of Re-
spondent'scontentions regarding the prior existence of
these policies,` Respondent referred to its policy and pro-
cedures manual pertaining to communications with man-
agement providing for employees' access, through chan-
nels, to the personnel manager . Moreover, Webre testi-
fied without contradiction that when he was hired by
Respondent in May 1984 he was introduced to employ-
ees by Jimbo Parker in a series of safety meetings with
employees, and Parker advised employees that Webre
was the man to see regarding any problems they had.
According to Webre, employees thereafter frequently
came to his door with problems to be resolved.
.The policy pertaining to employee access to their eval-
uations is found, according to Steadman, in its policy
manual providing for supervisors advising employees on
the results of performance reviews. However, the policy
manual does not specifically state or clearly imply that
employees will be shown copies of the evaluation apart
from being advised of its contents.
With respect to the 12 December remark attributed to
him by Saavedra, Steadman conceded that in the process
of introducing a video tape relating to the union cam-
paign and the election on 14 December, he told employ-
ees that there "have been people who told me that they
really don't agree with the Union but that they were
going to vote for the Union just to make sure the Com-
pany had a message," and added, "You can be sure I've
got a message." Steadman testified he further added,
"You know, we can't make any promises during the
campaign, and there's no promises being made, but I got
the message" Steadman contradicted Saavedra's testimo-
ny, however, to the extent Saavedra said Steadman's re-,
marks were made during a chicken dinner served to em-
ployees. Steadman indicated that the chicken dinner took
place in October at which time Steadman delivered an-
other speech to - employees regarding the union cam-
paign.6 Steadman's version of his remarks at the 12 De-
cember video tape introduction was generally corrobo-
rated by Morgan. ' .
It is well established under Board law that the "es-
sence of a solicitation of grievances' violation is not the
solicitation itself but the inference that the employer will
redress problems." University of Richmond, 274 NLRB
1204 (1985). And "[c]rucial to a conclusion of implied re-
dress is a.finding that the employer interfered with, re-
strained and/or coerced employees in their union activi-
ties, which is manifested by such factors as change in
past practice, announcement of new policy and timing
and context of such change." Ace Hardware Corp., 271
NLRB 1174 (1984). In the instant case, the General
Counsel-in arguing the illegality in the solicitation relies
on Saavedra's inability to recall any prior survey, the
s The General Counsel makes no contention that any unlawful remarks
were made in the October chicken dinner speech
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timing of the survey in the midst of the union campaign,
as well as the specific promises of changes or benefits at-
tributed to Steadman by Saavedra.
To the extent that the complaint allegations regarding
solicitations or grievances and promises of benefit rest on
the credibility of Saavedra, they must fail for I found
Saavedra to be an unpersuasive witness.. His recall was
self-serving, selective, and sometimes prompted by lead-
ing questions .. With respect to his testimony regarding
the absence of a survey in 1983, it is to be noted that he
was not corroborated by any other employee- called as a
witness by the General Counsel who had the burden of
proof here. And Respondent's documentary evidence in
the form of correspondence with the consultant used in
1983 outlines and confirms the difficulty Respondent
had, as claimed in the testimony of Morgan, in getting a
final report from the consultant. Such correspondence
clearly supports the fact that a 1983 survey took place
whether or not Saavedra took part in it. On this record,
I find that the 1983 survey establishes a precedent for the
conduct of employee surveys by Respondent. The ab-
sence of a longer history of such survey is not meaning-
ful since Respondent only started operations in mid-1982.
With respect to the timing of the 1984 survey, it is
clear that it took place about 2 months later than-in 1983.
Moreover, it was rather hurriedly arranged. However, 1'
am unable to attach great' significance in this variation in
timing for had the survey occurred 2 months earlier, it
would still have taken place during the conduct of the
union campaign . Based on Steadman's testimony, uncon-
tradicted in this regard, he was aware about late Septem-
ber that union activity was going on If Respondent had
been inclined- to-use the survey as a device to solicit
grievances and • thereby implicitly promise 'to resolve
them, it seems reasonable that it would have done so in
October prior to the Union's filing of its petition.
Turning to-the alleged announcements of new policies
of practices, Respondent's witnesses Steadman, Parker,
Morgan, and Richard were mutually corroborative re-
garding both the survey and the statements made by
them in connection with the summary report to employ-
ees on 9 November. Richard particularly impressed me
as sincere , though cautious, in his testimony. And while
Saavedra denied that Steadman read -from a prepared
text at the meeting at which Richard spoke, he conclud-
ed on cross-examination that Steadman in fact made
many of the remarks set- out in the written text Steadman
identified as the remarks he read. Accordingly, I credit
Steadman and Richard concerning their remarks at the 9
November meeting with employees. I conclude further,
based on their testimony and that of Parker and Morgan,
that Steadman made no reference to establishing a "new"
open-door policy. In reaching this conclusion, I-also note
that Richard in his outline of remarks did refer to an
"open-door policy" in regard to complaints about
upward communication. That identification of the prob-
lem in this context verifies the previous existence of the
policy, making it improbable that Steadman would have
found it necessary to promise a "new" benefit in the
form of a "new open-door policy." While it is clear that
the survey revealed an "upward" communication prob-
lem, I can find no,promise of any particular change to
correct the problem. Steadman did tell the employees
that he wanted to create "an environment where em-
ployees and management can finally discuss" and "ad-
dress" concerns, but such a statement is too general to
establish a promise of a particulr benefit to thwart union
organization efforts, particularly in the face of repeated
statements by Steadman both at the 9 November meeting
and as a preface to the survey that Respondent could
promise no benefits and would not make changes it
could not lawfully make in order to "bribe" employees.
This conclusion is unaffected by Steadman's admission
that he did refer in other meetings with employees in
November and December to maintenance of the open-
door policy. Maintenance of a policy does not establish a
change which can be construed as a promise of benefit.
Based on the denials of Steadman, Parker, and
Morgan, which I find credible, that Steadman did not
mention performance evaluations on, 9 November, I con-
clude that Steadman did not promise to allow employees
to review their, evaluations. Richard's outline does indi-
cate that employees felt employee evaluations were used
selectively by supervisors, but there is no indication from
the outline that there was any complaint about employ-
ees being able to see their evaluations.. Under these cir-
cumstances, I find it unnecessary to- decide what Re-
spondent's practice and policy, had-been with regard to
allowing employees to see their evaluations. I find Re-
spondent did not violate Section 8(a)(1) by promising
either a new open-door policy or allowing employees to
review their evaluations. -
In light of all the foregoing and considering the record
as a whole, I conclude that the General Counsel has
failed to establish that Respondent in its November 1984
survey unlawfully solicited grievances and implicitly
promised to remedy them in violation of Section 8(a)(1)
of the Act.
Considering next Steadman's 12 December remarks to
employees, even if I were to accept Saavedra's version
of such remarks to be the most accurate, I would still
find that the remarks were too vague to constitute an im-
plicit promise of benefit. The most that can be said is
Steadman . confirmed that employees, through the con-
duct of a union organization campaign, had captured his
attention so that it was not necessary to further under-
score that attention voting for the Union. However, an
employer's admission that his attention has been captured
is neither tantamount to, nor indicative of, a promise to
take remedial action on employee complaints, particular-
ly where, as here, repeated steps have been taken to dis-
avow any implications or promise of benefit: I, therefore,
find no violation of Section 8(a)(1) of the Act based on
Steadman's 12 December remarks.
D. The Alleged Discriminatory Performance
Evaluation and Discharge of Saavedra
1. The evaluation', -
Saavedra
`
was employed by Respondent in the summer
of 1982, and worked as a first-class electrician receiving
top pay for a production employee. During his employ-
ment which ended on 21 December, Saavedra worked
BELL HALTER, INC. - 1217
under the supervision of various leadermen and foremen,
the last being leaderman Richard Valenti and Foreman
Chris DeHart.
.It is undisputed that Saavedra was a union activist, nor
is it disputed that Respondent was aware of Saavedra's
union activities and inclinations Saavedra was listed as
being on the organizing committee in the Union's 18 Oc-
tober letter to Respondent requesting recognition. A
copy of that letter with all the employees named therein
as committee members was circulated with the Union's
newsletter to employees dated 22 October. Saavedra
wrote an article under his byline in-the Union's newslet-
ter of 1 November distributed in Respondent's facility.
Further, his picture was contained, along with that of
other union supporters, in literature distributed to em-
ployees at one point.prior to the 14 December election.
Saavedra's testimony that he attended union meetings
and solicited and obtained in excess of 35 employee-
signed union authorization, cards is not contradicted.
The complaint in Case 15-CA-9554 alleged that Saa-
vedra's discharge was unlawful and violative of Section
8(a)(3) and (1) of the Act. At the. hearing, the General
Counsel amended the complaint to also allege that Re-
spondent further violated Section 8(a)(3) and (1) through
evaluation of Saavedra by Fontenot and DeHart as a
marginal employee rather than a satisfactory one on 21
November because of Saavedra's union activity. '. Re-
spondent conceded the less than satisfactory evaluation,
but denied that it was-based on union considerations.
The evidence adduced with respect to the evaluation
reveals that Saavedra was evaluated in late November,
initially by Fontenot, in conformance with'a-practice by
Respondent of conducting evaluations of its employees
each 6 months. Saavedra testified that his preceding eval-
uation was conducted in June by his then leaderman
Stanley Brown and Foreman DeHart when Saavedra
was working on the day shift. While Saavedra said he
had not seen the evaluation, it had been discussed with
him and he had been told by Brown and DeHart that he
received a satisfactory rating. He added that he was not
told about any specific areas in which he needed to im-
prove. He could not recall whether either Brown -or
DeHart said anything to him about, his "leave earlies,"
i.e., times when an employee leaves his job prior to the
regularly scheduled quitting time. Examination of the
prior evaluation which was received in evidence reflects
that it was completed on 31 May rather than sometime in
June. In five of the seven areas in which he was rated;
Saavedra received a four score ' on a scale of one to five
with five being the top or outstanding score and four
being classified as superior. In the remaining two areas,
attitude and attendance, Saavedra received a three and a
two respectively, the latter score being classified as mar-
ginal With respect to attendance, the evaluation noted
that Saavedra had 5 excused absences, 5 tardies,-and 10
"left earlies" in the 6-month period preceding the evalua-
tion. The overall rating according Saavedra was three or
satisfactory.
The alleged discriminatory evaluation was signed by
leaderman Fontenot on 21 November, and initialed by
DeHart apparently at some later time. It reveals a sub-
stantial downgrading for Saavedra. Specifically, Saave-
dra received no "4" or superior- ratings and instead re-
ceived "3's" or satisfactory ratings in four classifications.
He received "2's" or marginal ratings in two classifica-
tions and a "1" or unsatisfactory rating in the attendance
classification. The attendance record contained in the
evaluation and, based on attendance through 14 Novem-
ber, revealed 3 illness absences , 1 unexcused absence, 1
leave of absence, 1 tardy, and 10 left earlies. Saavedra re-
ceived an overall rating of "2" placing him in the "mar-
ginal" category indicating that he was barely meeting
minimum job requirements, an unacceptable status for an
experienced employee "not to - be tolerated for an ex-
tended period." -
More significantly, Saavedra's evaluation (the original
document) reveals that initial markings on the evaluation
were, changed to lower Saaveda's ratings. Narrative
comments in the evaluation also were apparently the
object of "whiteouts" and changes. Thus, as noted in the
record, Saavedra's' "2" rating in "attitude" had initially
been marked at the higher "3" rating. The narrative was
also changed somewhat, and the final sentence stated
that Saavedra felt the Company "owes him more." On
work habits, the evaluation had been downgraded from a
"4" to a "3," and the narrative position also changed.
The "quality of work" classification also shows a "cor-
rection". from a "3" rating to a "2" rating, and in the
narrative - comment it was again noted that Saavedra
"feels the Company owes him." The evaluation reflects
further correction in comments regarding Saavedra's
weak points and strong points. A specific weak point
noted was Saavedra's "attitude toward the Company."
Based on the foregoing evidence and Saavedra's testi-
mony that,he had not changed his work habits between
the 21. November evaluation and the preceding one, and
because the downgrading with particular emphasis on
Saavedra's "attitude" took place during the middle of the
union campaign in which Saavedra, with Respondent's -
knowledge, was heavily involved, the General Counsel
argues that the evaluation was discriminatory and based
on union considerations in violation of the Act. As fur-
ther evidence of Respondent's hostility to-Saavedra be-
cause of his union activity, the General Counsel, while
not alleging it as a specific act of discrimination, points
to a "written reprimand" given Saavedra and placed in
his personnel' file by Fontenot on 10 December for "50
leave earlies" for the year when that figure was clearly
not only. unsubstantiated but' inconsistent with the "left
earlies" noted on Saavedra's preceding two 6-month
evaluations. Finally, the General Counsel argues that the
downgrading of Saavedra was not justified based on any
evidence produced by Respondent at the hearing.
Respondent's evidence relating to Saavedra's evalua-
tion was related through Fontenot and Production Su-
perintendent Clinton Lee. Foreman DeHart was no
longer employed by Respondent at the time of the hear-
ing and was not called to testify Fontenot related that
he completed Saavedra's evaluation, signed it, and gave
it to DeHart a few days later. A few days later, DeHart
advised Fontenot that he had' made changes 'in the eval-
uation; told him what-they were, and explained that it
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was based more on Saavedra's production work on a
boat as opposed to Saavedra's warehouse work 7
In addition to the changes made by DeHart on Saave-
dra's evaluation, •Fontenot testified that DeHart at the
time also downgraded other evaluations of employees by
Fontenot. More -particularly, Fontenot identified the
evaluations of three other employees prepared by him
which DeHart had, changed with downgrades in some
classifications. However, none of the downgrades result-
ed in a less-than satisfactory rating in any classification
and none of the three received an overall rating of less
than satisfactory. According to Fontenot, DeHart made
changes on about 85 to 90 percent of Fontenot's evalua-
tions-and had made revisions on such evaluations prior
to the union campaign..
Production Superintendent Lee testified that he had
consulted with DeHart about Saavedra' s evaluation and
others as part of a routine review of employee evalua-
tions. According to Lee, he and DeHart reviewed the
evaluations together, changed some, and sent some back
for reconsideration. There were no changes in Saavedra's
evaluation by Fontenot when it was first presented to
Lee. Lee concluded that the "4" ratings given Saavedra
by Fontenot were "over-generous." Lee testified he had
not seen anything in Saavedra's work which would war-
rant more than a satisfactory rating, and he therefore
asked DeHart to reconsider.8 Regarding the change of
Saavedra's attitude rating from a "3" to "2," Lee testified
generally that Saavedra's attitude had deteriorated from
his prior evaluation and he asked DeHart to reconsider
the rating. However, Lee could-not relate any specific
instances of conduct reflecting attitude deterioration and
testified only generally that a top pay-rated person like
Saavedra was expected to "perform and show a superior,
a general good attitude and be consistent." With respect
to the downgrading of Saavedra from a 3 to a 2 in " initi-
ative," Lee testified that was DeHart's decision but did
-not specify what exactly DeHart relied on to make the
change. According to Lee, DeHart was in agreement
with him on those items where Lee requested reconsider-
ation. Lee.denied that the changes made in Saavedra's
evaluation were based on union considerations.
With respect to the 10 December counseling of Saave-
dra regarding his "leave earlies," Fontenot testified that
he received a document from the personnel office listing
the absences, tardies, and leave earlies for all employees-
with the monthly total for October as well as the yearly
total. While the October total for Saavedra was "not that
bad" according to Fontenot, he noted that the report
showed a yearly total of 50 leave earlies of Saavedra.9
7 Fontenot testified that he had based his evaluation more on Saave-
dra's work in the warehouse where he had been assigned to lighter duty
during recuperation from a knee ' injury Fontenot said , however, he did
not directly supervise Saavedra in such warehouse work
8 At least twice in his testimony , Lee equated a "4" rating as falling in
the "outstanding" category In actuality, as noted, a "4" falls in the lower
superior category
9 Based on Saavedra's 31 May evaluation which shows 10 leave earlies
for the 6-month rating period and his 21 November evaluation which also
shows 10 leave earlies for the 6-month rating, period, the report relied on
by Fontenot showing a total of 50 leave earlies for the year is apparently
erroneous I note also in this , regard that 50 leave earlies is almost twice
as many as-any other employee in the report Further, Saavedra indicated
Fontenot concluded that the yearly total was clearly ex-
cessive and that he-should counsel Saavedra about it. He,-
therefore, called Saavedra in, showed him the report,
and told him he had a problem. Fontenot documented
the matter with a note stating that on 10 December he
had talked to Saavedra about this monthly attendance
record for October which he described as excessive and
also noted Saavedra's yearly total of 50 leave earlies was
"extremely bad." Fontenot denied that his counseling of
Saavedra regarding the leave earlies was motivated in
any way by Saavedra's union activities.
Respondent argues that the allegation of the discrimi-
natory evaluation of Saavedra is based on the uncorro-
borated testimony of Saavedra and that no prima facie
case was established by the General Counsel in this
regard. It is argued further that the absence of discrimi-
nation in the evaluation is shown by the fact that revi-
sions in the evaluations were pursuant to normal policy,'
and that other employees had their evaluations also re-
vised and lowered. -
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert: denied 455 U.S. 989
(1982),10 the General - Counsel is required to make a
prima facie showing sufficient to support the inference
that protected conduct was a motivating factor in the
conduct alleged to be discriminatory Upon such a show-
ing, the burden shifts to a respondent to demonstrate that
the same action would have taken place even in the ab-
sence of the protected conduct. The factors outlined by
the General Counsel, in my opinion, clearly establish a
prima facie case of discrimination in Saavedra's evalua-
tion. Saavedra was a strong union advocate whose union
activities were known to management. Respondent's con-
duct shows it was strongly opposed to union organiza-
tion. Saavedra's unfavorable November evaluation, after
his involvement in union activity represents a substantial
departure from his favorable evaluation dust 6 months
earlier when he had not been involved in union activity.
Saavedra testified he had not changed his level of work
performance between evaluations. The downgrading rep-
resented also a substantial departure from the initial
rating accorded Saavedra by his immediate supervisor,
Fontenot, who should have been most familiar with his
work. One of the categories in which Saavedra was
downgraded most seriously was his "attitude." The nar-
rative with respect to Saavedra's "attitude" explained
only that he thought the Company owed him more. That
"fault" is emphasized again in the narrative under the
"narrative" category. An employee who supports union
organization is prompted to do so in part, if not in
whole, by his "attitude" or belief that his employer
"owes him more," either in terms of wages or improved
working conditions. Thus, faulting an employee actively
supporting a union for his "attitude" or belief that the
company owes him more is, in the absence of other ex-
planation, synonymous with faulting him for his union
in his testimony that he did not believe he had that many "leave earlies "
The record contains no explanation by Respondent for the apparent error
in the high number of leave earlies attributed to Saavedra
10 See also NLRB v Transportation Management Corp, 462 U S -393
(1983)
J
BELL HALTER, INC.
support. These circumstances are clearly sufficient to
shift the burden to Respondent to demonstrate that it
would have evaluated Saavedra in the same manner even
in the absence of his protected union activity.
In its defense, Respondent points to the downgrading
of three other employees as part of a process to avoid
overly generous ratings. If the downgrading of Saavedra
had only been in the area of work performance as the
other employees had been, Respondent's defense might
be persuasive. The same can even be said if the further
downgrading of Saavedra had been limited to his attend-
ance record including the times he left work early. But
the downgrading went much further and faulted him in
attitude and initiative, areas in which the other employ-
ees had not been faulted, and in both of these areas his
evaluation was reduced because he felt "the Company
owes him."
In face of the foregoing undisputed evidence and rea-
sonable inferences to be drawn therefrom, Respondent
could escape a conclusion that Saavedra's evaluation was
discriminatory by establishing that the downgrading was
justified by specific instances of Saavedra's conduct ex-
plaining and supporting the conclusions reached in the
evaluation. I conclude that Respondent has not done that
here. The only witness who testified for Respondent on
this point was Superintendent Lee, but Lee, while claim-
ing to have had more opportunity to observe Saavedra
than Fontenot, was unable to point to specific conduct of
Saavedra which would warrant the contention that Saa-
vedra's attitude had deteriorated.
Lee's generalized claim of deterioration in Saavedra's
attitude is even doubtful because his opportunity to ob-
serve Saavedra is open to substantial question. While
Saavedra had worked on the day shift in the warehouse
during late summer and early fall, the same shift worked
by Lee, Lee conceded that he had never had occasion to
speak to Saavedra's immediate supervisor in the ware-
house about Saavedra's work. When Saavedra was trans-
ferred to the night shift in the fall, his shift did not coin-
cide with Lee's normal workday although Lee claimed
that he sometimes worked as much as 2-1/2 hours into
Saavedra's shift. It is difficult to perceive how Lee's op-
portunity for observing Saavedra could have been great-
er than Fontenot's who worked the whole shift with
Saavedra, and who testified herein the he presumed Saa-
vedra's warehouse work was satisfactory because the
warehouse supervision always sought to get Saavedra
back for warehouse work. I discredit Lee's claimed op-
portunity to observe even more when considering that
he had general supervision over 130 employees, and, par-
ticularly in face of his admission that he had been un-
aware that Saavedra had missed more than 2 weeks of
work in November due to his back problem. According-
ly, and also because he failed to explain or otherwise jus-
tify how Saavedra's belief that the Company "owed him
more" adversely impacted on his attitude affecting his
job performance, I am unable to credit Lee's assertion
that union considerations were not involved in Saave-
dra's evaluation. Rather, I conclude Respondent has not
rebutted the General Counsel's prima facie case, and
therefore find that Saavedra's evaluation was based on
1219
discriminatory considerations, his union involvement, in
violation of Section 8(a)(3) of the Act as alleged. t i
2. The discharge
The facts surrounding the discharge of Saavedra, as
well as the facts relied on by Respondent in effectuating
the discharge, are not in serious dispute. Although the
discharge did not take place until 21 December, the con-
duct of Saavedra on which the discharge was allegedly
based took place on 3 December following a Christmas
party for all its employees given by Respondent at a
local hotel on Saturday, 1 December. Thus, on 3 Decem-
ber prior to the beginning of his shift at 4:30 p.m., Saave-
dra was in the plant cafeteria passing out some union lit-
erature and talking to other employees awaiting the be-
ginning of work. Employees identified as being present
were Richard Valenti, Kenneth Wright, Gilbert Tosso,
Darrell Hall, David Urquhart, and Ulrich Torrence.
However, Saavedra conceded in his testimony there
were about 30 employees in the cafeteria at the time,
about 20 of whom knew him. Valenti testified he asked
Saavedra where he was the night of the Christmas party.
Saavedra replied, still according to Valenti who was un-
contradicted on the point, that he had tried to go to the
party but he was met at the lobby elevator by two com-
pany goons who beat him up to keep him from going to
the party. Valenti testified that Saavedra had a "half
smile" on his face at the time which Valenti, a personal
friend of Saavedra, described as "Luke's look," a kind of
smirk and sarcastic smile. Valenti responded to Saave-
dra's remarks with a chuckle as did some of the other
employees present. However, Valenti repeated his ques-
tion and Saavedra responded by saying he was serious
and repeating his initial answer. Valenti pressed Saavedra
further and Saavedra insisted again that he had been
beaten up.
Valenti, who had been promoted to a leaderman posi-
tion sometime between 3 and 21 December, gave equivo-
cal testimony regarding whether he believed what Saa-
vedra had said. While noting that Saavedra showed no
physical marks of having been beaten, he testified that
after Saavedra insisted that he was serious, he began to
have doubts as to whether Saavedra was joking. He testi-
fied that after Saavedra's remarks that he had turned to
employee Ken Wright and asked, "Is he joking or
what?" However, in a prehearing statement submitted to
the Board investigator, Valenti had said Saavedra was
just being Luke, and he did not seriously believe that
Saavedra had been beaten.
Valenti's testimony about Saavedra's remarks was sub-
stantially corroborated by the General Counsel's wit-
nesses Darrell Hall and Gilbert Tosso as well as Re-
spondent's witness Ulrich Torrence. Hall testified Saave-
1fl In reaching this conclusion, I attach no significance to the counsel-
ing of Saavedra by Fontenot regarding the 50 "leave earlies." The coun-
seling was not alleged as violative of the Act and it is not clear that it
constituted a disciplinary action at all. Fontenot, whom I credit, testified
that it was he who decided on warning Saavedra about the 50 "leave ear-
lies" based solely on the statistics he had received Fontenot had not re-
viewed Saavedra's first 1984 performance evaluation so there was no way
that he could have known whether the 50 "leave earlies" attributed to
Saavedra were in error.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dra was smiling when he made the remarks, but .Tosso
and Torrence testified he was not. Although Hall testi-
fied he did not take Saavedra seriously, he admitted that
out of curiosity he talked- to Saavedra about an hour
later out on the job and inquired if he had been serious.
According to Hall, Saavedra responded that he had not
been-senous explaining, in effect, that he had not gone to
the party because he had been ill.
It is undisputed that Saavedra suffered a back injury,
apparently unrelated to his job, in mid-November and
was hospitalized several days Thus, he was absent from
work from about mid-November until 3 December. He
was on medication for pain relief throughout this time,
and shortly after his conversation with Hall mentioned
above, he suffered a recurrence of back pain which
caused him to leave work after only about 2 hours on
the job. He did not return until 10 December.
In the meantime, Wayne Stevens, Respondent's night-
shift superintendent, learned about Saavedra's cafeteria
remark from other employees. He brought it to the atten-
tion of Parker in a note dated 5 December reporting that
Saavedra had claimed to be "dead serious ." Webre testi-
fied for Respondent that he heard about the matter from
Stevens about 4 or 5 December. Because it was a serious
accusation and because it could constitute a breach' of
Respondent's employee rule number 15 which prohibited
employees from making "false, vicious, or malicious
statements concerning any employee, the company or its
products,"12 and after clearance with counsel because of
Saavedra's known union activity, Webre undertook an
investigation of -Saavedra's accusation. Having ascer-
tained from Stevens that Stevens had -initially received
the report from Valenti and Torrence, Webre inter-
viewed them on 10 December, and thereafter contacted
the hotel only to learn that there had been no reports to
it of any incidents involving anyone being beaten. Webre
also telephoned Saavedra at- his home on 10 December
to inquire about the matter and, according to Webre
who was uncontradicted on the point, Saavedra told him
that he had no knowledge about any incident and did not
know what Webre was talking about. Further, after con-
cluding their' initial talk on- the subject, Saavedra called
Webre back to ask him who was attributing such com-
ments to Saavedra, but Webre refused to tell him.
Later on 10 December, Saavedra returned to work
and Webre interviewed him and five other employees.
Webre, in the presence of the Company's counsel, ob-
tained written statements from five of the employees in-
cluding Saavedra.13 Saavedra in his written statement to
12 Board law indicates Respondent's work rule is facially invalid and
unlawful to-the extent that it prohibits inadvertent or unknowingly false
statements which are protected when uttered in the context of concerted
activity American Cast Iron Pipe Co, 234 NLRB 1126 ( 1978), enfd 600
F.2d 132 (8th Cir 1979), Standard Motor Products, 265 NLRB 482 ( 1982);
Radisson Muehlebach Hotel, 273 NLRB 1464 (1985). However , the rule
was not alleged as unlawful in any of the complaints issued in this matter
and was not cited as a basis for objections Further, its validity was not-
questioned at the hearing , and neither side argued the point in their
briefs Under these circumstances , I make no applicable to unknowingly
false statements Nor will I consider it as objectionable conduct See Iowa
Lamb Corp., 275 NLRB 185 (1985)
is The four others were -Tosso, Valenti, Torrence, and Hall Accord-
ing to Webre, another employee, Urquhart, was interviewed and he con-
firmed the remarks attributed to Saavedra on 3 December but declined to
Webre initially said only that he was ill on 1 December
and had no knowledge of any incident. Pressed further
about whether he had made comments about an incident,
Saavedra added in his statement the comment, "I have,
not many [sic] statement that any incident has hap-
pened." Of the statements provided by the other employ-
ees, only Tosso's - indicated that Saavedra had made his
remarks about the beating "sound like it was joke."
The next day Respondent distributed among its em-
ployees a memo from Steadman questioning, inter alia,
the credibility of, Saavedra as a union spokesmen. A
copy of Saavedra's 10 December written statement to
Respondent was attached, and the memo stated:
The second document attached is an affidavit from
our employee, Luke Saavedra. Some of you may
have heard Luke Saavedra making claims in the
cafeteria last week that "company goons" or ''com-
pany thugs" had attacked him at the elevator in the
Hilton and prevented him from attending the Bell
Halter Christmas party. We are relieved to know
that Mr. Saavedra now denies ever having been at-
tacked by anybody at the Hilton, and, in effect, re-
mained at home the night of the Christmas party."
No other immediate action was taken against 'Saavedra
by Respondent.
Saavedra testified that he did not recall the remarks at-
tributed to him by the other employees during the times
he talked to Webre. However, about 2 hours after giving
Webre a written statement , Saavedra saw Tosso on the
job and while the two exchanged comments about what
the interviews with Webre had been about apparently
nothing was said-by Tosso to refresh Saavedra's recollec-
tion. A 'short while later, Saavedra also talked to Hall
who indicated the statement he had given -Webre in-
volved a "joke" by Saavedra in the cafeteria. Saavedra
could not recall whether Hall mentioned the specific
remark or joke which he had attributed to Saavedra.
Hall also talked to employees Serigne and Urquhart, but
both indicated that they had denied knowledge of any in-
cident inquired about by Webre.
Also on 11 December, Saavedra talked to Valenti
about the matter.14 During the discussion, Valenti, ac-
cording to Saavedra, "painted a picture" for him regard-
ing Saavedra's 3 December remarks so that Saavedra re-
called them. Saavedra testified he also explained to Va-
lenti on this occasion that he had been on a pain reliev-
ing drug on 3 December and his recollection was
"fuzzy." Saavedra made no effort to correct the record
on the matter by communicating his refreshed recollec-
tion to Webre. -
On 19 December, Webre called Saavedra into his
office again and in the presence of Stevens again gave
give a statement An additional employee, Tommy Sengne , was inter-
viewed but denied any knowledge of the comments attributed to Saave-
dra.
14 Saavedra equivocated about whether the discussion with Valenti
took place on I I or 18 December , but finally testified in response to lead-
ing questions that it was on 11 December It is not clear that Valenti had
been promoted to leaderman at the time of the conversation'regardless of
which date is accepted
BELL HALTER, INC.
Saavedra an opportunity to relate his "side of the story."
Saavedra testified he told Webre that Respondent al-
ready knew his side. Webre asked if he wanted to add
anything and Saavedra replied, still according to Saave-
dra, that the only thing he wanted to add was that he
had talked to several employees Webre had statements
from and "most of them" had told Saavedra "this was
just a joke." Webre, contrary to Saavedra, testified Saa-
vedra, after initially denying saying anything in the cafe-
teria, said, "People said I said these things , but I don't
recall saying anything in the cafeteria ." Stevens, on the
other hand , initially testified that Saavedra told Webre
he did not make the statements attributed to him, but if
he made them, he did not mean it or "something to this
effect." After leaving the witness stand , and after a
remark to him by Respondent 's counsel, Stevens was re-
called to the stand where he changed his testimony to
state that Saavedra did not say that if he made the re-
marks he did not mean them.
On 21 December , Webre called Saavedra into his
office and again in the presence of Stevens told Saavedra
as a result of the investigation Saavedra was being dis-
charged for violation of Respondent 's rule 15 relating to
the making of false, vicious , or malicious statements.
There was no evidence that Respondent had ever before
disciplined any employee for breach of rule 15. For that
matter , however , the record does not show that the rule
had ever been breached before to Respondent 's knowl-
edge.
The General Counsel argues extensively that the
downgrading of Saavedra , the warning to him for 50
leave earlies when Saavedra 's two preceding 6-month
evaluations revealed only 20, and Saavedra 's discharge
for a trivial and joking matter all reveal a determined
effort by Respondent to rid itself of a strong union ad-
herent solely because of his union advocacy . According
to the General Counsel , the asserted reason for Saave-
dra's discharge was nothing more than a pretext, and
that even if Respondent 's version of Saavedra's com-
ments were accepted , he was discharged for only a
"simple misrepresentation" during the election campaign.
In this connection , the General Counsel asserts that Saa-
vedra made his remarks in a nonmalicious manner and
none of the employees who heard him actually believed
that Saavedra was attacked by "two company goons."
Further, the General Counsel would excuse Saavedra's
failure to recall the remarks attributed to him on 3 De-
cember on the basis of his medication on that date con-
taining codeine . 15 Conceding that Saavedra failed to
admit to Webre the statements Saavedra had made in the
cafeteria after recalling them , the General Counsel
argues such failure was justified in view of a remark of
Valenti testified to by Saavedra to the effect that Valenti
had said he believed the matter was all over and Re-
spondent would not carry it any further , that it was just
a joke.
The General Counsel would fault Webre's investiga-
tion for failing to focus on or to determine from all the
employees he interviewed whether Saavedra's remarks
were made in a joking manner. This failure , the General
15 The dosage was not specified on the record.
1221
Counsel urges , reveals the presence of pretext in the dis-
charge, a sham to conceal the existence of the true
motive for the discharge : Saavedra 's union activity.
Respondent, citing Wright Line, supra, argues that
union animus on the part of the employer sufficient to
support a finding of an unlawful discharge may not be
inferred from the mere fact that an employer takes a po-
sition that it does not want its employees to be union-
ized . Respondent then proceeds to argue that the record
does not show any union animus directed at Saavedra or
any determination on the part of Respondent to "get"
Saavedra . From this point, Respondent argues that Saa-
vedra had engaged in misconduct by virtue of his lies on
3 December accusing Respondent of responsibility for
having him beaten and then compounded the misconduct
by deceitfully denying to Respondent that he had in fact
made the accusation . With respect to the General Coun-
sel's contention that Webre should have discovered that
Saavedra was joking , Respondent relies on the testimony
of Webre to the effect that no employees related to him
any objective circumstance which would reveal that Saa-
vedra was joking . Moreover, Respondent points out that,
based on Webre 's testimony, Saavedra never claimed to
Webre that he had in fact been joking . Under these cir-
cumstances, and having given Saavedra every opportuni-
ty to explain , Respondent asserts just cause for the dis-
charge existed , i.e., violation of rule 15 , and Saavedra
was discharged for that cause.
I have previously related that I found Saavedra to be
an unpersuasive witness. The explanation proffered by
him for both the incident of 3 December and his commu-
nications with Webre and Respondent's representatives
concerning the incident I find patently incredible and de-
monstrative of both Saavedra 's lack of candor and his se-
lective recollecion . I find particularly unconvincing the
hypothesis advanced by the General Counsel that Saave-
dra's recall concerning the 3 December incident was im-
paired by Saavedra 's medication . I note first of all in this
regard that Saavedra never on this record advanced the
contention that he could not recall his 3 December re-
marks because he was on medication . Nor did he cite ex-
amples of how the medication had caused him a lapse of
memory with respect to other incidents during the
period of medication . Secondly, Saavedra admitted at the
hearing that he possessed a present recall of the remarks
attributed to him on 3 December. Had his medication at
the time of the incident been suffiecient to impair his
future recall, it is improbable that he could have ever re-
called his 3 December remarks. Thirdly, Saavedra testi-
fied about other details regarding the 3 December inci-
dent which is inconsistent with memory impairment. For
example, in his testimony he recalled the approximate
number of employees in the cafeteria at the time of his
remarks. He could even recall the approximate number
of union leaflets he had to pass out on this occasion.
Thus, his medication did not affect his ability to observe
or to subsequently recall these less significant details. Fi-
nally, Saavedra never advanced to Webre any claim that
he could not recall his December remarks because he
was on medication.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even Saavedra's claim, espoused at the hearing, that
he could not initially recall his 3 December remark be-
cause he often , makes jokes. he does not subsequently
recall does not ring true. Here, Saavedra's "joke" attrib-
uted serious, even criminal, conduct to Respondent. He,
based on other contradicted testimony of other witnesses,
including those of the General Counsel, repeated the ac-
cusation twice by insisting that he was serious. Based on
Hall's uncontradicted and credible testimony, Saavedra
was confronted an hour later with Hall's question again
about whether he was serious, and only at this point did
Saavedra indicate he was not.16 This is not the type of
occurrence or "joke" likely to be forgotten.
In view of the foregoing, I would not credit Saavedra
when hiss testimony is contradicted by that of any other
witness herein. More specifically, I creditWebre's testi-
mony regarding the 19 December interview with Saave-
dra when-it contradicts Saavedra, and find that Saavedra
did not refer to other employees having told Respondent
that' Saavedra was just "joking." I find it unbelievable
that Saavedra would have made such a reference with-
out, at the same time, claiming that ,he had in fact been-
,joking, particularly since he admittedly at that point
could recall making the statements attributed to him. I
find unreliable the testimony •of Stevens regarding the -19
December. meeting with Webre and Saavedra in view of
the contradiction of his initial testimony and the circum-
stances under which it occurred. I accept Webre's testi-
mony as containing the most convincing and accurate
version of the comments exchanged. --
Based -on the credited facts, it is clear that Saavedra
did on 3 December make a false accusation against Re-
spondent which well qualifies as a breach of Respond-
ent's rules of personal conduct, rule 15 I cannot accept
the General Counsel's argument - that Saavedra's.state-
ments were a_ `simple campaign misrepresentation." The
issue , here is not whether. Saavedra's conduct would
serve as a basis for setting aside the election. Rather, the
issue is whether such conduct constituted the making ,of
knowingly false and malicious statements against Re-
spondenf. Saavedra's accusations were outright false-
hoods, the .seriousness-of which were magnified in the
context of * the. union campaign. However, I do not at-
tribute to Saavedra a malicious or vicious intent to un-
dercut Respondent and interfere with the election. Had
he had such an intent, I do not believe that he would
have- admitted to Hall an hour after his initial remark in
the cafeteria that he had really missed the party due to
illness . Moreover, Saavedra's accusation accorded to Re-
spondent such serious misconduct that he could have had
little hope that he could be taken seriously and be per-
suasive. . '
Notwithstanding Saavedra's breach of Respondent's
rule 15, Respondent's disposition to' discriminate against
Saavedra, as revealed in its discriminatory evaluation of
him found above, Respondent's vigorous opposition to
the Union, and Respondent's imposition of the harsh pen-
alty of discharge when a lesser penalty could have been
16 Although Hall testified that he initially viewed Saavedra 's remark as
- a joke, there was obviously sufficient doubt in his mind to provoke him'
to subsequently ask Saavedra about his seriousness
imposed constitute factors I find sufficient to make out
the General Counsel's prima facie case of a violation of
Section 8(a)(3). It thus becomes necessary to closely ex-
amine Respondent's evidence regarding its response to
Saavedra's conduct in order to determine whether Saa-
vedra- would- have been discharged without regard to his
union activity: -
It has been held that a trier of fact is not permitted to
substitute his or her judgment for that of the employer
with regard to discipline imposed.. Super Tire Stores, 236
NLRB 877 fn. 1 (1978); Liberty House Nursing Home,-245
NLRB 1194 fn. 2 (1979). However, "if the employee is a
good worker and his breach of the work rules trivial, the
more rational explanation for discharge may be invidious
motivation." Neptune Water Meter Co. v. NLRB, 551
F.2d 568, 570 (4th Cir. 1977). See also Flowers Baking
Co., 240 NLRB 870, 870-872 (1970). And "overreaction
to a violation of a rule or accepted standard may itself be
an indication of pretext." Sea-Land Service, 240 NLRB
1146, 1147 (1979).
Whether Respondent overreacted to a 'clear violation
of its rule by Saavedra must be determined by the evi-
dence ascertained in Webre's investigation of the remarks
attributed to Saavedra. That investigation showed, and
Saavedra now admits, that Saavedra made the accusation
against the Company claimed by the other employees.
The accusations were knowingly false and thus clearly
breached Respondent's rules of conduct of which Saave-
dra was fully aware. While Saavedra's accusation might
have, under' other circumstances, been dismissed as a
joke, they took on greater- gravity because made in the
context of a union campaign by a union supporter in the
presence of a significant group of employees. If made
with the intent to deceive, the accusations could be con-
sidered not only knowingly false but also vicious and
malicious. Respondent knew that Saavedra's accusations
were false not only from establishing through the hotel
that -no incidents had occurred but also by virtue of
Hall's- written statement to Webre in which Hall had re-
ported that Saavedra subsequently- admitted -that he had
missed the Christmas party due only to illness But only
employee Tosso is shown to have suggested to Webre
that Saavedra made the accuation "sound like a joke."
Respondent's attempts to delve deeper into the matter
were confounded.by Saavedra's own refusal to admit to
making the accusation, or claim, in fact, that he had been
joking. Under these circumstances, and after granting
Saavedra another opportunity-to disclaim maliciousness,
Respondent settled on the harsh penalty of discharge.
Considering what was known to Respondent, I am
convinced that cause for discharge existed. Saavedra vio-
lated a known rule, the violation was not trivial, and the
discharge, under the circumstances,, was not such an
overreaction as to establish pretext. The case would have
taken on a different complexion if Saavedra had claimed
to Respondent that he 'had been joking. He did not do
so. Saavedra's failure to acknowledge having made the'
accusations, much less claim he was joking, makes rea-
sonable a presumption on Respondent's part of a degree
of deceit by Saavedra supporting a conclusion that his
accusations were not only knowingly false, as Respond-
BELL HALTER, INC. - 1223
ent was well aware, but also willful and malicious.
Knowingly false and malicious statements in connection
with union activity are not protected. Radisson Muehle-
bach Hotel, supra Considering this, and my sense of the
record as a whole, I find credible Webre's testimony that
Saavedra's discharge was based on Saavedra's false and
malicious statement against Respondent. I, therefore,
conclude that Respondent has demonstrated that Saave-
dra would have been discharged without regard to his
union activities. The fact that there had been no previous
discipline imposed under rule 15 I find is meaningless in
the absence of other evidence showing that prior
breaches of.rule 15 occurred to Respondent's knowledge
and toleration. Accordingly, I conclude Respondent did
not violate Section 8(a)(3) and (1) of the Act in discharg-
ing Saavedra."
III. THE OBJECTION
Objection 5 states: -
The Company in excessively broad fashion en-
forced a no-solicitation and no-distribution rule in
order to prevent and limit the distribution of Union
literature and newsletters from being broadly dis-
tributed in the facility and did so in such a discipli-
nary, intimidating, and harassing fashion as to at-
tempt to prevent the free distribution of union liter-
ature and newsletters in appropriate places and
times by Union supporters. These incidents oc-
curred during the critical pre-election period -and
are the subject of an existing complaint issued by
the Region in Case Nos. 15-CA-9484 and 15-CA-
.9504.
The evidence for Objection 5 is coextensive with the
evidence related above regarding Respondent 's no-distri-
bution rule and the restrictions initially placed on Goos-
trey and Veau in their distribution of literature in`the
cafeteria on 1 and 2 November . As- related above, I
found that Respondent had violated Section 8 (a)(1) of
the Act by its maintenance and enforcement of an exces-
sively broad no-solicitation rule. Respondent argues this
conduct must be considered as de minimis
Normally, action which violates the Act a fortiori con-
stitutes conduct which interferes with the "laboratory
conditions" for an election . Dal-Tex Optical Co., 137
NLRB 1782, 1786-1787 ( 1962). In more recent years, the
Board has refused to adopt a per se approach in applying
the principles of Dal-Tex Optical and has declined to set
aside elections where it is virtually impossible to con-
clude that a party 's -conduct , although unlawful, could
have affected the results of the election . See Metz Metal-
17 In reaching this conclusion, I have given full consideration to Re-
spondent's delay of almost I I days in effectuating the discharge of Saave-
dra Webre's explanation that the delay was caused by concern with due
care and distraction with the press of business is not wholly convincing
The delay may suggest Respondent's uncertainty, lack of resolve, and
lack of concern over the seriousness of the rule violation However,
whatever doubt may be raised regarding Respondent's motivation as a
result of the delay in the discharge is counterbalanced by the conviction
that if Respondent had in fact been acting on discriminatory consider-
ations, it would have moved with more haste to effectuate the discharge
prior to the union election
lurgical Corp ., 270 NLRB 889 ( 1984); Caron International,
246 NLRB 1120 ( 1979); Super Thrift Markets, 233 NLRB
409 (1977) In considering whether unlawful conduct, is
de minimis with little possibility of election impact, the
Board looks to the number of violations of the Act
found , their severity , the extent of dissemination , the size
of the unit , and other relevant factors . Metz Metallurgical
Corp., supra . Examining these factors in the instant case,
one must conclude that Respondent 's maintenance and
enforcement of an unlawfully broad no-distribution rule
and confiscation of union literature in connection there-
with were serious. Employees ' knowledge of the rule
and its enforcement extended throughout the voting unit.
But the most significant relevant factor with respect to
the impact of Respondent 's violation of the Act on the
election is Respondent 's grant of specific authorization to
all employees to distribute union literature in nonwork
areas on nonwork time on 5 November and thereafter.
This authorization was brought to the attention of all
unit employees so that each knew that he would not be
in violation of any existing Respondent rule in undertak-
mg union distributions in appropriate areas on Respond-
ent's premises . The Union , in fact , made much ado about
its "victory" in the dispute about employee distribution
rights in a newsletter distributed to employees in re-
sponse to the Company ' s 5 November "authorization."
Although . more than 5 weeks elapsed between Respond-
ent's authorization and the election , no evidence of any
further interference by Respondent to union distributions
on its premises was shown after 2 November. Under
these circumstances , it is impossible to conclude that the
maintenance and earlier enforcement of the unlawfully
broad no-distribution rule affected the election . I there-
fore find that Respondent ' s unlawful conduct with re-
spect to the rule was de minimis insofar as having an
impact on the election , and that Objection 5 to the elec-
tion is without merit. -
The Union 's Objections 15(a) and (c) are as follows:
The Company made offers and promises of benefits
and money to employees , both individually and col-
lectively, and promises of improved conditions of
employment generally, both expressly and implied
during the critical pre-election period and condi-
tioned upon defeat of the Union These included,
but were not limited to, the following.
(a) Direct offers of increased wages and improve-
ments in positions and shifts to various employees
to induce them to vote against the Union.
(c) Conducting a unit wide- survey by depart-
ments on issues of wages, benefits , safety, working
conditions, and other matters and through the Com-
pany agent and other agents presenting the direct
and indirect promise of improvements in these areas
conditioned upon the Union 's defeat and the implied
promise of creating the improvements , where they
had not been done based on past surveys and data
collection from the employees, and creating the im-
pression , directly or indirectly , of the Company's
response to solution to grievances and promises
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the critical pre-election period and subse-
quently conditioned upon the Union's defeat.
Objection 20 is similar to Objections 15(a) and (c) and
states:
During the critical pre-election period, the Compa-
ny made improvements in conditions of employ-,
ment about which employees had long complained;
but which were motivated by the-employee's pro-
tected activity and which were not part of already
established company policy.
The evidence for these objections is coextensive with the
evidence presented on the complaint allegations regard-
ing the survey and the alleged promises of benefit. No
merit was found to these complaint allegations based on
the facts presented. Therefore, no merit is ' found to the
Union's Objections 15(a) and (c) and Objection 20.
While not set forth as an ' objection, I have found
herein that Respondent violated Section 8(a)(3) and (1)
of the Act through the discriminatory evaluation of Saa-
vedra-during the critical preelection period. That matter
having been fully litigated, it is appropriate to consider
the impact of such conduct on the election notwithsatnd-
ing the absence of a specific objection on the point. See
American Safety Equipment Corp., 234 NLRB 501 (1978).
I find that the conduct, however, did not impact on the
election for I am persuaded that the evidence does not
substantiate a conclusion that Saavedra or any other bar-
gaining unit employee, was aware of the discriminatory
evaluation. In reaching this conclusion, I do not credit
Saavedra's testimony that Fontenot talked 'to him about
the evaluation on 10 December:. Fontenot denied that he
talked *to Saavedra regarding the evaluation since he
denied that Saavedra's evaluation had been returned to
him before Saavedra's discharge. Fontenot's denial, in'
my opinion, was, honestly delivered and credible. Even
Saavedra ' did not claim in his testimony that he was
shown the evaluation itself. It would appear reasonable
for Saavedra to have asked to see his evaluation since
Saavedra had claimed that Steadman had earlier stated
that employees would be allowed to review their evalua-
tions, particularly if Saavedra had been told the evalua-
tion was unfavorable. Saavedra made no claim that he
did so. Moreover, Saavedra did not testify concerning
any unfavorable remarks 'by Fontenot regarding the eval-
uation. Since the evaluation was in fact unfavorable, it is
more likely Fontenot would have mentioned areas of de-
ficiencies other than leave earlies if he did talk to Saave-
dra about the evaluation. Under these circumstances as
well as-the fact that the amendment to allege the evalua-
tion was a, discriminatory one' was not made until the
hearing, I conclude, as Fontenot's credible testimony in-
dicates, that Saavedra was not aware of his unfavorable
evaluation at any time during the cntical period. It there-
fore could not have impacted upon the election and
could accordingly not be found to constitute objection-
able conduct affecting the election results.' General Felt
Industries, 269 NLRB 474 (1984).
CONCLUSIONS OF, LAW.
1 The Respondent, Bell Halter, Inc, is a employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 100, Service Employees International Union,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) of
the Act by interrogating employees concerningoncerning their
union inclinations and support, and by maintaining and
enforcing by confiscation of union materials a broad no-
solicitation rule prohibiting union distributions on Re-
spondent's premises in nonwork_ areas during working
hours without authorization.
4. Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act on 21 November 1984 by discriminatorily
evaluating its employee Luke Saavedra because of his ac-
tivity on behalf of the Union. .
5. `The unfair labor practices set forth above in para-
graphs 3 and 4 affect commerce within the meaning of
Section 2(6) and (7) of the Act .
6. Respondent did not violate Section 8(a)(3) or (1) in
any other manner alleged in-the complaints herein.
7. The Union's Objections 5, 15(a) and (c), and 20 are
found to be without merit. No objectionable conduct af-
fecting the election having been found, the objections
should be dismissed and the results of the election certi-
fied.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. -
Having found that Respondent executed a discrimina-
tory employee performance appraisal on Luke Saavedra
dated 21 November 1984 because of his support for the
Union, I shall recommend that Respondent be required
to rescind and remove such evaluation from its files and
notify Saavedra in writing that this has been done and
that Respondent will make no reference to the evaluation
in response to any inquiry from any employer, prospec-
tive, employer, employment agency, unemployment in-
surance office, or reference seeker. -
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18 -
ORDER
The Respondent, Bell Halter, Inc., New•Orleans, Lou-
isiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
18 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and -recommended
Order shall, as provided in Sec 10248 of-the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
BELL HALTER, INC.
(a) Coercively interrogating employees about their in-
clinations regarding, or support of, Local 100, Service
Employees International Union, AFL-CIO or any other
labor organization.
(b) Maintaining and enforcing, by confiscation of
union materials or otherwise, a no-distribution rule pro-
hibiting union distributions on its premises in nonwork
areas at anytime without authorization. -
(c) Discouraging membership in Local 100, Service
Employees International Union, AFL-CIO or any other
labor organization by discriminating against employees
on their performance evaluations or by otherwise dis-
criminating against them in any other manner with re-
spect to their hire, tenure of employment, or terms and
conditions of employment because of activities on behalf
of the Union
.(d) In any like or related manner interfering with, re-
straining, or coercing. employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act.
(a) Remove from its files the discriminatory employee
performance evaluation of Luke Saavedra dated 21 No-
vember- 1984, and advise him in writing that this has
been done and that it will make no reference to the eval-
uation in response to any inquiry from any employer,
prospective employer, employment agency, unemploy-
ment insurance office, or reference seeker.
(b) Post at its New Orleans, Louisiana facility copies
of the attached notice marked "Appendix." i 9 Copies of
the notice, on forms provided by the Regional Director
for Region 15, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that. the complaints herein be
dismissed insofar as they allege violations of the Act not
specifically found. -
IT IS FURTHER ORDERED that the Union's Objections 5,
15(a) and (c), -and 20, having been found to be without
merit, be overruled and that an appropriate Certification
of Results of Election held,on 14 December 1984 in Case
15-RC-7129 be issued.
19 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1225
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion -
To choose not to engage in any of these protect-
ed concerted activities.
WE 'WILL NOT coercively interrogate our employees
about their inclinations regarding, or support of, Local
100, Service Employees International Union, AFL-CIO
.or. any other labor organization.
WE WILL NOT maintain and/or enforce by confiscation
of union material or otherwise a no-distribution rule pro-
hibiting union distributions.on our premises in nonwork
areas on nonwork time without our authorization.
WE WILL NOT discourage membership in the above or
any other labor organization by discriminating against
Luke Saavedra or any other employees on their perform-
ance evaluations or by otherwise discriminating against
them in any other manner with respect to their hire,'-
tenure of employment, or terms, and conditions of em-
ployment because of their activities on behalf of a union.
WE WILL NOT in any, like or related manner interfere
with, restrain, or coerce employees. in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL remove from our files the discriminatory
performance evaluation of Luke Saavedra and advise
him in writing that this has been done and that we will
make no future reference to 'it.
BELL HALTER, INC.
'-I,.