Charles Batchelder Co.Download PDFNational Labor Relations Board - Board DecisionsJun 25, 1980250 N.L.R.B. 89 (N.L.R.B. 1980) Copy Citation CHARLES BATCHELDER COMPANY Charles Batchelder Company, Inc. and Steven Car- michael and Edward J. Fleming Cases 2-CA- 15639 and 2-CA-15641 June 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On June 13, 1979, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, l and conclusions of the Administrative Law Judge, as modified below. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by promising and granting wage increases to dis- courage union activity. However, for the reasons set forth below we find, contrary to the Adminis- trative Law Judge, that Respondent also violated Section 8(aX3) and (1) by discharging employee Edward J. Fleming and by refusing to reemploy Steven Carmichael. Employees Fleming and Carmichael were re- sponsible for the May 8, 1978, initial approach to the Union; this had been inspired, at least in part, by Respondent's decision to defer until September 1978 a wage increase the employees expected on May 1 of that year. Fleming and Carmichael ac- tively promoted the Union among the employees and sought to have employees on all three shifts sign authorization cards. Respondent became aware of the union campaign among its employees not later than May 12, as is established by the fact it held a supervisors' meeting late that morning to discuss the union activity that was taking place. 1. The discharge of Edward J. Fleming Early in the afternoon of May 12, employee Emanuelle drove his forklift into an area close to The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing his findings. 250 NLRB No. 9 Fleming's workplace in the furnace area. Fleming asked Emanuelle if he was going to the May 14 union meeting. Emanuelle replied he was not and started to leave, but Fleming, also operating a fork- lift at the time, blocked his egress and exclaimed: "What do you mean you're not going .... It's for your own benefit." Emanuelle's response was that he had better things to do and that nothing would be accomplished anyhow. Fleming replied some- thing had already had been accomplished and added: "If you don't like it, I'll take you out in the parking lot and kick your ass .... " He then let Emanuelle leave. Rather than returning to his job, Emanuelle im- mediately related the incident to Armand Plourde, the shop foreman. He in turn reported it to Vice President of Operations Beilin, who called Eman- uelle to his office to repeat what had occurred. After Emanuelle's departure, Plourde and Beilin discussed Fleming's work. Plourde described Flem- ing as a fair worker with an absentee problem. Plourde recommended he be discharged; Beilin agreed. Plourde then called both a policeman2 and Fleming into his office, confronted Fleming with Emanuelle's charges, rejected Fleming's denial of Emanuelle's claims, made some references to Flem- ing's asserted absentee problem, and then dis- charged him. Fleming was escorted out of the plant by the policeman. However, sometime later, Respondent offered Fleming reemployment if he would withdraw his charges filed in this proceed- ing. 3 The Administrative Law Judge credited Re- spondent's explanation for the discharge of Flem- ing and, on the basis of such credibility finding, concluded that Fleming was properly discharged solely for making "a threat of bodily harm . . . to an employee who had expressed his preference to refrain from union activity." However, the ques- tion of motivation where an alleged unlawful dis- charge is involved is not one to be answered by crediting or discrediting a respondent's professed reason for the discharge, and thus we cannot accept every credibility finding by a trier of fact as dispositive of that issue. Rather, that question is 2 During their off-hours, local police were free to take jobs in their regular uniforms as private security officers . In his brief to the Board, the General Counsel requests that the Board find that Respondent violated Sec. 8(a(XI) of the Act by condition- ing its offer of reemployment on Fleming withdrawing his charges filed with the Board. However, such conduct was not alleged to be unlawful prior to the request in the General Counsel's brief (The General Coun- sel's motion at the end of the hearing to conform the pleadings to the evidence is insufficient to add to the complaint a new allegation of specif- ic unlawful conduct ) Consequently, Respondent had no notice that the legality of the conduct was in issue, thus had no reason to defend against any such allegation, and the matter was not in fact litigated. Accordingly, the General Counsel's request for an additional 8(a)(1) finding is neither timely nor otherwise properly raised and is, therefore, denied 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one to be resolved by a determination based on consideration and weighing of all the relevant evi- dence. Consequently, we are not faced here with the task of determining whether the various cir- cumstances surrounding Fleming's discharge are sufficient to upset the Administrative Law Judge's credibility finding that Respondent's witnesses were testifying truthfully when they stated Flem- ing was discharged for his threat to Emanuelle. In- stead, we must decide whether those circumstances support the conclusion urged on us by the General Counsel that Fleming was discharged for unlawful reasons, rather than for the lawful reasons ad- vanced by Respondent. Having carefully consid- ered the various relevant factors, we find that the Administrative Law Judge erred in his conclusion concerning Fleming, for substantial record evi- dence compels the finding that Respondent seized on the alleged threat and also Fleming's absentee- ism to rid itself of one of the two leading union ac- tivists in the plant. First, Fleming was a long-term satisfactory em- ployee, holding an important, high-rated job-that of furnace operator-and he received some recog- nition from Respondent by being appointed safety director in 1977. Second, the decision to discharge Fleming, assertedly based primarily on his threat to Emanuelle, was made without affording Fleming an opportunity to present his side of the encounter first.4 Third, Fleming's absentee record, which was raised to help justify the discharge, was no worse than the records of employees who were not dis- charged, and Fleming had never been warned that his absences were excessive or that they threatened his job.5 Finally, we deem it unlikely that, in the circumstances, the stated threat would be viewed to be such egregious misconduct-if misconduct at all-as to cause the summary dismissal of a valued employee in an essential job. Thus, taken in con- text, Fleming's statement to take Emanuelle to the parking lot to "kick his ass" was essentially no more than the angry statement expressed in tough talk of an employee stating his displeasure and frus- tration at a coworker's rejection of his efforts in- 4 Respondent contends that Plourde and Beilin reached only a tenta- tive conclusion to discharge Fleming before Fleming was called into Plourde's office for the exit interview. This claim, as the General Counsel points out, is belied by Plourde's having a policeman present at the inter- view to escort the discharged employee from the plant. It surely would be doubtful at best to conclude that Plourde would call in the policeman prior to having decided on a course of conduct that might warrant the policeman's presence. I The Administrative Law Judge concluded that Fleming's absentee record, which was raised at the exit interview, played no part in the deci- sion to discharge but was raised by Plourde only to provide further justi- fication for a decision reached on the other ground-the threat of bodily harm. The fact that Plourde felt it necessary to provide a justification for a discharge assertedly based on perfectly lawful grounds is further evi- dence that the asserted reasons for the discharge were not the real rea- sons. tended to benefit all employees. There is nothing in the record to suggest that Fleming's language was intended to be, or reasonably could be, taken liter- ally. Fleming did not attempt to arrange any meet- ing in the parking lot for an encounter; he simply made his comment and that ended the incident. Further, there was no background of any union-re- lated violence and no evidence Fleming had ever engaged in violent conduct or that Emanuelle6 or Respondent had any reason to believe he would. And certainly Respondent's subsequent offer of employment shows that it did not view Fleming disqualified for employment as an individual given to violence or violent threats. Consequently, we find, in view of the foregoing, that the reasons given by Respondent for Fleming's discharge were wholly pretextual and that Fleming was in fact dis- charged because of his prounion stand. According- ly, we find that Respondent in discharging Fleming violated Section 8(a)(3) and (1) of the Act. 2. Refusal to reemploy Steven Carmichael According to testimony credited by the Adminis- trative Law Judge, employee Carmichael, having heard of Fleming's discharge shortly after it hap- pened, confronted Respondent's foreman, Armand Plourde, by stating, "If Fleming is let go, I am leaving too." Plourde replied, "If you walk out now don't bother to come back." Carmichael re- sponded with "O.K." and left. Approximately 20 to 30 minutes later, Plourde received a telephone call from Carmichael in which Carmichael said, "I want to apologize for my hasty decision, and see if I can come back to work." In response Plourde an- swered, "I got to think about it.... Call me back Monday morning." Plourde testified that he thought the matter over during the ensuing week- end and, taking into consideration that Carmicheal had quit on one prior occasion, he decided that Carmichael's practice of quitting made him "use- less." Consequently, on Monday when Carmichael telephoned, Plourde told him not to return to work. From the foregoing facts the Administrative Law Judge found that Carmichael's discharge was solely the result of his quitting on May 12 and was not the result, even in part, of his activities on behalf of the Union. We disagree. Without question Carmichael quit and was not discharged on May 12. However, Respondent could not lawfully deny him reemployment for union-related reasons, 7 which were, we believe, the I Fleming was not a stranger to Emanuelle, and on occasion Fleming had driven Emanuelle to work. ? Phelps Dodge Corporation v NL.R.B., 313 U.S. 177 (1941). 90 CHARLES BATCHELDER COMPANY basis for the refusal to take him back on May 15. Thus, Carmichael began working for Respondent in 1973, was a satisfactory employee, and on May 12 held the responsible position of furnace opera- tor. During his lengthy employment history Carmi- chael had previously quit only once-that was in 1976 and at that time he gave 2 weeks' notice of his intention to leave. Consequently, we do not have here the practice of quitting which Respond- ent assertedly relied on in refusing to rehire Carmi- chael; nor do we have any rational explanation or other showings disclosing how or why the two iso- lated quits-one of which lasted no more than a half hour-rendered a good employee "useless." In sum, the situation is one in which shortly after he became engaged in union activity and shortly after Fleming, the only other union activist, was unlaw- fully discharged, Carmichael, a satisfactory em- ployee for many years, was denied reemployment for a wholly insubstantial reason. 9 In these circum- stances, we find the reason given for the refusal to be pretext and that Carmichael was refused reem- ployment because of his prounion activity. Accord- ingly, we further find that Respondent by refusing to reemploy Carmichael on May 15, 1978, violated Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirma- tive action in order to effectuate the policies of the Act. We shall order that Respondent offer Edward J. Fleming and Steven Carmichael immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered as a consequence of the discrimina- ' Thus, for example, there is no contention or showing that Carmi- chael's position was filled at the time he was denied reemployment on May 15. 9 The Administrative Law Judge points to the possible deleterious ef- fects Carmichael's May 12 conduct could have had on Respondent's op- erations as justifying the refusal to reemploy him to his position of fur- nace operator. However, Respondent did not advance any such reason as a cause in whole or in part of its refusal to reemploy Carmichael. Contrary to the dissent, in the cases of Fleming and Carmichael we are not substituting our judgment for Respondent's in deciding what consti- tutes a proper ground for discharge or refusal to rehire. Nor do we rest our result on any determination that Respondent's actions were so unduly harsh that they must have been discriminatorily motivated. Instead, we have evaluated all the circumstances and factors in the case, and have concluded that the reasons asserted by Respondent for its actions were not the real reasons, but were pretexts, and that the true reasons were discriminatory The fact that the Administrative Law Judge "credits" the self-serving statements of Respondent about this ultimate fact does not, contrary to our colleague, end our inquiry on this issue. Cf. NL.R.B. v. Pacific Grinding Wheel Co., Inc., 572 F 2d 1343, 1347 (9th Cir. 1978). tion against them by payment to them of a sum of money equal to that which they would have nor- mally earned as wages from the date of the dis- crimination against them1 o to the date of such offer of reinstatement to Fleming or of employment to Carmichael less their net earnings during said period. Said backpay and interest thereon is to be computed in the manner prescribed in F W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 1 CONCLUSIONS OF LAW i. The Respondent, Charles Batchelder Compa- ny, Inc., is an employer within the meaning of Sec- tion 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1040, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Edward J. Fleming and by re- fusing to reemploy Steven Carmichael because they engaged in protected union activity, Respond- ent violated Section 8(a)(3) and (1) of the Act. 4. By promising and granting benefits to induce employees to refrain from engaging in union activi- ty, Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Charles Batchelder Company, Inc., Newton, Con- necticut, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging its employees or refusing to reemploy former employees because of their union activities. (b) Promising or granting wage increases or other benefits for the purpose of inducing employ- ees to refrain from engaging in union activity. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: 'O In the case of Fleming the date of the discrimination is May 12, 1978, and for Carmichael May 15, 1978 "L See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1902) 91 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer Edward J. Fleming and Steven Carmi- chael immediate and full reinstatement to their former positions or, if those positions are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suf- fered as a result of the discrimination against them in the manner set forth in the section of this Deci- sion entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Newton, Con- necticut, copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms pro- vided by the Regional Director for Region 2, after being duly signed by a representative of Respond- ent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER TRUESDALE, concurring in part and dis- senting in part: Like my colleagues, I would affirm the Adminis- trative Law Judge's finding that Respondent violat- ed Section 8(a)(1) of the Act by promising and granting wage increases to discourage union activi- ty. Unlike my colleagues, however, I also would affirm that portion of the Administrative Law Judge's Decision which dismisses the allegations that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Edward J. Flem- ing and by refusing to rehire employee Steven Car- michael. As more fully set forth in his Decision, the Administrative Law Judge found that Respond- ent lawfully discharged Fleming because he had threatened a coworker with bodily harm when the coworker indicated he preferred to refrain from union activity. The Administrative Law Judge fur- 12 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ther found that Respondent was under no obliga- tion to rehire Carmichael who had tendered his resignation and walked off the job in protest of Fleming's discharge. 3 The General Counsel argues that Respondent's asserted reasons for its action were pretextual and offered testimony by Fleming and Carmichael to support its claim that Respondent's actions had been discriminatorily motivated. However, the Ad- ministrative Law Judge, who had the opportunity to observe all of the witnesses, discredited Fleming and Carmichael and found Respondent's explana- tion for its actions was plausible and credible. In the absence of any evidence that Respondent had ever condoned the type of behavior engaged in by Fleming or Carmichael and the lack of any credi- ble corroborating testimony, the Administrative Law Judge found that the General Counsel had failed to establish that the discharge and refusal to rehire had been pretextual and unlawfully motivat- ed. In such circumstances, I agree with the Admin- istrative Law Judge's observation that the only grounds for finding Respondent's actions to be dis- criminatory entails "a naked substitution of judg- ment for that exercised by management." In reversing the Administrative Law Judge, my colleagues have done just that; they have substitut- ed their judgment for that of Respondent's officials. They surmise that the discharge and refusal to rehire were overreactions and were unduly harsh and therefore must have been discriminatorily mo- tivated. In my view, such an analysis is based upon unsupported inferences and is without record sup- port. Accordingly, for the reasons set forth in the Administrative Law Judge's Decision, I dissent from my colleagues' findings that Respondent un- lawfully discharged Fleming and refused to rehire Carmichael. i3 In view of the finding that Fleming had been discharged for engag- ing in unprotected activity, Carmichael's conduct in support of Fleming was also unprotected. APPENDIX NoTIICI TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties were represent- ed by their attorneys and afforded the opportunity to present evidence in support of their respective positions, it has been found that we have violated the National Labor Relations Act, as amended, in certain respects and we have been ordered to post this notice and to carry out its terms. 92 CHARLES BATCHELDER COMPANY WE WILL NOT discharge you or refuse to reemploy you for engaging in union activities. WE WILL NOT announce or grant benefits to you to dissuade you from engaging in union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights to self-organi- zation, to form, join, or assist Local 1040, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection as guaran- teed in Section 7 of the Act, or to refrain from any and all such activities. WE WILL offer Edward J. Fleming and Steven Carmichael immediate and full rein- statement to their former positions or, if those positions are no longer available, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. WE WILL make Edward J. Fleming whole for any loss of earnings he may have suffered as a result of our having unlawfully discharged him for engaging in union activity, plus inter- est, and make Steven Carmichael whole, with interest, for any loss of earnings he may have suffered as a result of our refusing to reemploy him because he engaged in union activity. CHARLES BATCHELDER COMPANY, INC. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: A hearing was conducted in the above-captioned proceed- ing on January 29 and 30, 1979, on an original unfair labor practice charge filed on May 22, 1978, and a con- solidated complaint issued on June 30, 1978, which, as amended, alleged that Respondent independently violat- ed Section 8(a)(1) of the Act by creating the impression of surveillance and by promising and granting wage in- creases to discourage union activity. The complaint fur- ther alleged that Respondent violated Section 8(a)(3) and (1) of the Act on May 12, 1978, by discharging its em- ployees Carmichael and Fleming, the Charging Parties herein, in reprisal for their union activity. In its duly filed answer, Respondent denied that any unfair labor practices were committed. Following close of the hear- ing, briefs were filed on behalf of the General Counsel and Respondent. Upon the entire record in this proceeding, including my opportunity to observe directly the witnesses while testifying and their demeanor, and upon consideration of the post-hearing briefs, it is hereby found as follows: FINDINGS OF FACT I. JURISDICTION Respondent is a Connecticut corporation with a princi- pal place of business in Newtown, Connecticut, from which it is engaged in the smelting and manufacture of aluminum ingots. In the course and conduct of said oper- ation, Respondent annually sells and ships from its plant goods and materials valued in excess of $50,000 directly to points outside the State of Connecticut. The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Local 1040, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is, and has been at all times ma- terial herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR L ABOR PRACTICES A. Background This proceeding relates to an initial organization cam- paign, as to which, according to the General Counsel, Respondent, in swift reaction, terminated Steven Carmi- chael and Edward Fleming, the employees responsible for the advent of the Union, under conditions proscribed by Section 8(a)(3) and (1) of the Act. Also involved are independent 8(a)(l) allegations based on surveillance of union activity as well as the promise and grant of wage increases in order to induce employees to withdraw their support from the Union. Respondent's basic operation involves the salvaging of aluminum from industrial scrap. The plant, with a work force numbering some 35 employees, operates on a three- shift basis, with employees having no history of union representation. Historically, employees received annual wage in- creases each year on May 1. However, in April 19781 employees were notified that expected annual increases would be deferred until September, and made retroactive to May 1.2 Dissatisfied with this turn of events, Steven Carmichael, at the suggestion of fellow employee Edward Fleming, on Monday, May 8, contacted the Union by telephone, and later met with its representa- tive, Edward lulo. The latter provided Carmichael with blank authorization cards for distribution to employees at the plant. On that occasion, Carmichael signed such a I Unless otherwise indicated, all dates refer to 1978 H Based on the credited testimony of Ronald Beilin. Respondent's xlce president in charge of operations To the extent inconsislent therewith, the testimony of Fleming and Carmichael is rejected 93 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card and agreed to afford lulo an opportunity to meet w;th employees. That same Monday evening, Carmichael briefed Flem- ing as to what transpired with Iulo, and they agreed to embark upon an organizational effort. Pursuant thereto, Fleming and Carmichael, during that week, discussed the Union with employees on all three shifts and solicited signatures to authorization cards. Carmichael also con- sulted with employees as to their interest in, and when they could attend, a meeting with Iulo. Said meeting was arranged and scheduled for Sunday, May 14, at the union hall. Overt signs of union activity became manifest in the plant on Friday morning, May 12, when Carmichael and a fellow employee, Tom Elliot, posted union organiza- tional literature in various locations around the shop, in- cluding restrooms, and an area immediately adjacent to their workplace. 3 With this information, Bruce Bat- chelder, apparently the son of Respondent's president, in- structed Shop Foreman Armand Plourde to call a fore- men's meeting for that morning because, as Plourde related, Batchelder "wanted to find out what was going on." That afternoon, Fleming was discharged following a confrontation with another employee stemming from Fleming's insistence that the latter attend the scheduled May 14 union meeting. Within minutes after the Fleming discharge, Carmichael approached Plourde advising the latter of his intention to leave work. The circumstances under which this occurred are the subject of a sharp conflict in testimony, with the General Counsel urging that Carmichael simply advised Plourde that he was leaving because he had fallen ill and Respondent con- tending that he had quit in protest of the Fleming dis- charge. Plourde subsequently blocked Carmichael's at- tempt to return to work. On Sunday, May 14, employees intent on attending the union meeting were to meet at Respondent's parking lot and then carpool to the union headquarters. However, Carmichael, apparently the first to arrive at the plant that day, upon approaching the parking lot observed a policeman, wearing the uniform of the local law enforce- ment authority, on the parking lot. In consequence, he did not enter the lot but detoured in order to head off employees. In this connection, it is undisputed that Re- spondent sometime on May 13 intensified security by hiring uniformed, off-duty policemen regularly employed by the local municipality. Such an officer was present on the parking lot not only on May 14, but during several weeks thereafter, including occasions when Fleming, Carmichael, and union agents handbilled the plant. Following this handbilling, aside from the pendency of this proceeding, the record suggests, as might well be ex- pected, a decline in union activity at the plant. It does appear that, sometime in June, Respondent informed em- ployees that the wage increases previously due on May I would not be granted on September I as previously an- nounced, but on July 1. The increases were granted on July 1, and made retroactive to May 1. 3 I did not believe Fleming's uncorroborated testimony that such post- ers were placed in his work area B. The Alleged Discrimination 1. The discharge of Edward Fleming Fleming, prior to his discharge, had been employed for almost 8 years. At the time of his termination, he held the position of furnace operator, apparently a highly rated blue collar job. The decision to terminate Fleming was made by Armand Plourde, after consultation with Ronald Beilin. According to the credited testimony of Plourde in the early afternoon of May 12 employee Joe Emanuelle ap- proached Plourde to report on a confrontation with Fleming. Emanuelle advised that he was in the vicinity of Fleming's furnace, driving a forklift, when waved over by Fleming. Fleming asked Emanuelle whether he was going to attend the union meeting that had been scheduled for the following Sunday. Emanuelle indicated that he would not and attempted to drive off. At that point, Fleming, who was also on a forklift, blocked Emanuelle's truck so that he could not proceed. Fleming again stated, "What do you mean you're not going .... It's for your own benefit." Emanuelle responded that he had "better things to do," opining that nothing would be accomplished by what Fleming was doing. This angered Fleming who argued that something had already been accomplished, and then proceeded to berate Emanuelle with profanities, concluding with: "If you don't like it I'll take you out in the parking lot and kick your ass .... " Upon receiving this information, Plourde in- formed Emanuelle that he would take care of it.4 Plourde consulted Beilin, passing on the information he had received from Emanuelle, who contacted Eman- uelle to afford again his version of what had occurred in the presence of Plourde, Beilin, and Bruce Batchelder. After Emanuelle left, Beilin asked Plourde as to Flem- ing's work reputation. Plourde indicated that he was a fair worker but that he had a problem with absenteeism. Plourde elected to discharge Fleming, and Beilin con- curred. Plourde, at Beilin's suggestion, secured the pres- ence of a local police officer. These steps were taken without extending Fleming the opportunity to submit his version of the incident. Plourde then called Fleming to his office. The dis- charge interview was conducted in the presence of the police officer. When confronted with the charges made by Emanuelle, Fleming denied everything. Plourde did not believe him and effected the discharge. Fleming was escorted to the washroom and out of the premises by the police officer. Fleming's testimony concedes to a con- frontation with Emanuelle during the early afternoon of May 12. He admits to having become "a little annoyed" with the stance adopted by Emanuelle, and to calling Emanuelle "the biggest griper in the place." He denied threatening Emanuelle in any way, but claims to have expressed his peeve by demanding that Emanuelle pay him $5, an amount which Emanuelle allegedly owed him for rides to work afforded by Fleming some months ear- 4The foregoing is based essentially on the mutually corroborative tes- timony of Plourde and Emanuelle. 94 CHARLES BATCHELDER COMPANY lier. 5 As between Emanuelle and Fleming, the testimony of Emanuelle was more believable. 6 While regarding Fleming as generally unconvincing, his testimony in this immediate respect seemed overly sanitized and improb- able. 7 Based on the credited facts, it is found that the trigger- ing event for the discharge was a threat of bodily harm, by a key protagonist of the Union, to an employee who had expressed his preference to refrain from union activi- ty. Such conduct, if not itself unlawful under this Act, involved an intrusion upon the Section 7 right of em- ployee Emanuelle to refrain from union activity. It was unaccompanied by circumstances of a mitigating nature reducing its coercive nature to the inconsequential or trivial. Nonetheless, the General Counsel argues that the dis- charge was motivated, at least in part, by Fleming's union activity, or in the alternative that the record war- rants a conclusion that Respondent seized upon his mis- conduct as a pretext to rid itself of a key union protago- nist. With respect to the pretext claim, the General Counsel lays challenge to the bona fides of Respondent's judg- ment in effecting the discharge. Thus, Fleming was a long-term employee, whose value to the Respondent was evident in his designation as safety director in 1977. 9 Fleming's regular job was a key position and the highest rated classification of a nonsupervisory nature in the plant. Indeed, Respondent had not discharged a furnace operator during the 2 years preceding Fleming's termina- tion. It is also true that the decision to discharge Fleming was made without obtaining Fleming's side of the story. Finally, as evidence of Fleming's competence, the Gen- eral Counsel points to testimony that sometime after the discharge Respondent, acting through Fred Bresson, of- fered to rehire Fleming, under substantially the same conditions he formerly enjoyed, provided that Fleming waive or withdraw pending National Labor Relations Board charges. On balance, I am not persuaded that the record sup- ports the General Counsel's claim. The arguments made from the foregoing as to the unlikelihood of such harsh discipline imposed on a long-term, valued employee I Emanuelle credibly denied that any reference was made at the time to rides to work. e I have not overlooked an apparent discrepancy between Emanuelle's testimony and a statement in his prehearing affidavit to the effect that he did not inform Plourde of the union meeting while reporting on his en- counter with Fleming. I Both parties concede that during the discharge interview Plourde mentioned Fleming's adverse record of absenteeism. Plourde credibly tes- tifled that he did so because this matter came up in consulting with Beilin when the latter questioned Plourde as to Fleming's work record. I find that absenteeism furnished no independent causation for the discharge, and reject the General Counsel's view that said reference was indicative of a resort to shifting explanations. Instead, I am convinced that absentee- ism was injected by Plourde as an argumentative, though human, ploy whereby past indiscretions were drawn upon to reinforce the justness of the discharge. In any event, while it is true that the record does not dis- close that during the period in 1978 Fleming's attendance record was the most reprehensible, on its face, it was something less than exemplary. ' Cf. N.L.R.B. v. Thor Power Tool Co., 351 F.2d 584, 587 (1965). 9 This position imposed on Fleming the responsibility of assuring com- pliance by employees with safety standards by reporting violations there- of to supervisors. Fleming received additional compensation of $500 an- nually during the first year in which he held this additional position entail a naked substitution of judgment for that exercised by management in circumstances where traditional evi- dence of pretext is lacking, and where the cause assigned for the discharge is not inherently lacking in foundation. There is no suggestion that Respondent ever condoned conduct akin to that of Fleming, although it does appear that Respondent had in the past discharged two employ- ees, Jerry Bradley and Rick Lesko, for threatening su- pervisors. to Insofar as the General Counsel seeks to override Flem- ing's misconduct under the mixed-motive test, serious doubt exists as to the viability of such a theory on the instant facts. Under such a view, absent due caution, the statutory standard of "just cause" would be circum- scribed critically. Managers have the right to maintain discipline in the workplace by corrective action should an employee organizer overstep protected areas and seek, through substantial misconduct, to impose coercive- ly his views upon resistive coworkers. Yet, at the same time, it would compromise industrial reality to a.ssume that elimination of such a prounion influence was totally alien and plainly neutral to the effectuation of such pre- rogative. Experience and assessment of probability are key aids to the inference-drawing process, but their ap- plication would prove too much were the mixed-motive theory applied hastily in such a context. In sum, absent more direct proof, I am unwilling to infer that Respond- ent acted, in part, upon a proscribed motivation, even though convinced that Fleming was a union protagonist. discharged on the basis of events stemming from his or- ganizational activity by an employer opposed to union- ization of its employees. Accordingly, having found that Fleming threatened fellow employee Emanuelle with bodily harm, and there- by impeded Emanuelle in the exercise of rights guaran- teed by Section 7, and that the General Counsel has failed by a preponderance of the evidence to establish that said misconduct was invoked by Respondent as a pretext, it is concluded that Respondent did not violate Section 8(a)(3) and (I) by discharging Fleming. 2. Steven Carmichael Carmichael, as will be recalled, made the initial con- tact with the Union, and he, together with Fleming, spearheaded the organization effort during the week which culminated in his separation. Carmichael's em- ployment with Respondent was not continuous but cov- ered two separate periods. Initially employed in March 1973, Carmichael quit in September 1976 to obtain other employment. Later, in November 1977, he was offered a job on a second shift by Armand Plourde, and resumed his employment with Respondent. As of May 12, Carmi- chael, like Fleming, held the position of furnace opera- tor. As indicated, pivotal to an assessment of the circum- stances under which Carmichael was terminated is a sharp conflict in testimony. According to Carmichael, at about 12:30 p.m., on May 12, red smoke emerged from 'o There is no evidence that, prior to the Fleming-Fmanuelle incident, any employees had ever threatened a nonsupervisory cosAorker DECISIONS OF NATIONAL LABOR RELATIONS BOARD his furnace. This was the telltale sign that a rectifier, ca- pable of emitting noxious fumes, had been included in the scrap fed into the furnace. Carmichael claims that he and his assistant, Tom Elliot, were exposed to the fur- nace fumes for about 20 minutes. He testified that he became ill, with his stomach turning, his head pounding, and sweat pouring off his face. Carmichael relates that a new load of scrap was brought to his work area at or about I p.m., but that he was too ill to continue working and, therefore, sought out Plourde to report that he was too ill to work. While en route to Plourde's office, Car- michael admittedly received information from an em- ployee that Fleming had been fired. Upon locating Plourde, Carmichael sought confirmation of the Fleming discharge. Plourde advised that Fleming "was all through." Carmichael then told Plourde that he was sick and had to go home. Plourde allegedly gave no re- sponse. II Carmichael then went to the washroom, where he observed Fleming with the police officer.i 2 Carmi- chael went on to testify that he then left the plant and went to his mother's house, because it was closer than his own home, where he rested. He claims to have felt better at about 2:30 or 3 p.m., whereupon he telephoned Plourde advising him of his improved state and indicat- ing he would report to work on Monday, May 15. Plourde instructed Carmichael to phone him on Monday morning before reporting to work, declining to explain why this would be necessary. On Monday, May 15, according to Carmichael, as in- structed by Plourde, he telephoned the latter before re- porting to work. Plourde told Carmichael not to report as he had quit on the previous Friday. Carmichael denied that this had been the case, charging that he had been fired. When Carmichael attempted to inquire as to the reason for the termination Plourde reiterated that Carmichael had quit. Contrary to the testimony of Carmichael, that offered on behalf of the defense is to the effect that on Friday afternoon, May 12, Carmichael left work, not by reason of any illness, but in protest of Fleming's discharge, and for that reason alone. Thus, Armand Plourde, with cor- roboration from Edward Salowski, Jr., who is charged with responsibility for Respondent's cost and quality control function, testified that at approximately 1:30 p.m. that afternoon, following the discharge of Fleming, Car- michael approached him, stating, "If Fleming is let go, I am leaving too." Plourde responded, "If you walk out now, don't bother to come back." Carmichael indicated, "O.K." and left. L3 " On direct examination by the General Counsel, Carmichael testified that no one was standing near Plourde during their conversation On cross-examination, Fleming first testified that Plourde was in the scale room, and that no one else was there when he spoke to Plourde. Later, however, he testified that Ed Salowski was in a corner of the scale room at the time. 2z Carmichael could not recall what words were exchanged between himself and Fleming on that occasion. 3a Salowski, contrary to Carmichael, testified that the incident involv- ing the noxious fumes at Carmichael's furnace occurred earlier that morn- ing about 10 a.m. Carmichael, together with corroboration from Fleming, indicated that it took place at between 12:30 and I p.m. This issue is deemed irrelevant and need not be resolved, for it is undisputed that Car- michael's assistant, Elliot, after Carmichael's departure complained of being ill and was allowed to go home Plourde went on to testify that about 20 minutes to 1/ 2 hour later he received a telephone call from Carmi- chael, in which the latter stated, "I want to apologize for my hasty decision, and see if I can come back to work." To this, Plourde claimed to have responded, "I got to think about it .... Call me back Monday morning." Plourde testified that he considered the matter and, after taking account of the fact that Carmichael had quit on one prior occasion, he decided that Carmichael's practice of quitting rendered him "useless." Accordingly, when Carmichael telephoned on Monday, Plourde informed him that he could not return to work. Plourde denied that Carmichael, during their conversation, expressed that he had left work because he was sick or nauseous on Friday. Carmichael was an unreliable witness, whose testimo- ny was marked by important contradictions and what I perceived to be lack of candor. His testimony that sick- ness actuated his departure from work on the heels of the discharge of his collaborator in the union drive im- pressed me as contrived.t 4 At the same time, the testi- mony of Plourde, Salowski, and Bresson, when weighed against the undisputed facts, struck me as the more prob- able. I find that Carmichael quit because Fleming had been discharged, and declined to abandon this course in the face of Plourde's clear warning that to do so would mean his job. Nonetheless, the Gealeral Counsel contends that Re- spondent's failure to reinstate upon Carmichael's timely apology and strong expression of a desire to return to work was discriminatorily motivated. Firstly, in this con- nection, while there is merit in the General Counsel's po- sition that Respondent was mindful of Carmichael's standing as a key union protagonist, 5 I am not persuad- ed by the General Counsel's argument that Respondent's past history of treating Carmichael favorably is sufficient to support a conclusion that Respondent "would have not acted so harshly," if Carmichael had not been in- volved in union activity. 16 A number of factors are cited '4 Fred Bresson, a furnace operator who, according to Fleming, at one point described himself as a foreman, testified that he attended the union meeting on May 14 During the meeting, Bresson related, someone men- tioned that, following the discharging of Fleming, Carmichael had walked off the job. Carmichael then confirmed that this had occurred, whereupon a union representative advised Carmichael, "No you didn't .Go back to work on Monday and tell them you were sick." Carmi- chael claimed that the only reference to May 12 made at the meeting was a statement that he had gotten sick, and a charge that his job was gone on Monday because of his union involvement. I believed Bresson. 'S The unit was small, and evidence indicates that the newly emerging organization campaign was a subject of discussion between employees and supervisors on the morning of May 12. Respondent's interest in de- veloping information as to just what was going on is evident from Plourde's testimony that he was instructed to call a meeting of foremen for that purpose at noon that day. In addition to his other union activi- ties, Carmichael had posted union literature in the area proximate to his furnace. Aside from the foregoing, Carmichael's having quit that moring out of announced peeve at the discharge of Fleming furnished strong evi- dence that, at a minimum, he was in league with those responsible for union activity. '6 In support of his contentions in this regard, the General Counsel cites two prior decisions of the Board involving quite different fact pat- terns. In Sibilios Golden Grill, Inc., 227 NLRB 1688 (1977), it was con- cluded that the quitting did not occur during worktime and was not taken seriously by the employer The refusal to employ occurred only Continued 96 CHARLES BATCHELDER COMPANY in support of this view. Thus, it is true that Carmichael had been restored after his earlier resignation in 1976, as to which he had afforded the Company 2 weeks' notice. In this same vein, while of dubious weight, it has not been overlooked that Carmichael testified that in 1976 after a company party he was invited to the Batchelder home, where Carmichael claims that he felt on friendly terms with Bruce Batchelder. Finally, the General Coun- sel points to the fact that Respondent had been lenient in affording time off to Carmichael in the past, upon his re- quest, to handle personal problems at home. Here again, the primary thrust of the General Counsel's contention is addressed to a conclusion that employee misconduct be excused by a substitution of my judgment for that of management. In any event, the facts on which he relies do not exceed normal manifestations of cordiality be- tween employer and employee. They are not necessarily indicative of any special status held by Carmichael which, objectively viewed, would carry an inherent sug- gestion that, in other circumstances, his unprecedented breach of his employment obligations would have been excused. Carmichael walked out in midshift after the dis- charge of another furnace operator. His action in this re- spect brought about an immediate further reduction in Respondent's operating capacity on the first shift, leaving only one of three furnaces with an operator. He created this situation in the face of a warning by Plourde that it could mean his job. Suspicion that arises from his known support of the Union and his key role in the campaign, even accepting Respondent's union animus, 7 failed to insulate Carmichael from the legitimate cause presented by his abandonment of work in midshift without prior notice. Absent evidence that Respondent had condoned any similar misconduct, any conclusion that Respondent was obligated to reemploy him would rest upon sheer speculation and an unwarranted substitution of third- party judgment with respect to a management decision not wholly lacking in rational foundation. Accordingly, I find that Carmichael quit his job on May 12, 1978, and that the General Counsel has failed to substantiate by a preponderance of the evidence that the refusal to allow after the employer had inquired and learned that the employees had sought out a union. The Administrative Law Judge reasoned that the su- pervening union activity was the only available explanation for the refus- al to employ when the employees appeared for work at their regularly assigned shift. With respect to Pinter Bro, Inc., 227 NLRB 921 (1977), absent a spot citation by the General Counsel, it is presumed that he claims support from findings by the Administrative Law Judge therein that employee Doris Bonadonna was discharged and denied reinstatement in violation of Sec. 8(aX3) of the Act. These conclusions derived from findings that Bonadonna had been badgered into quitting because of her union activity in circumstances constituting an unlawful constructive dis- charge. The subsequent failure by the employer therein to permit rescis- sion of her quit was found ". .. but a further manifestation of its deter- mination to effect her permanent separation from the other employees." 227 NLRB at 939. Thus, the cases relied upon by the General Counsel were decided on materially distinct fact patterns, and are deemed inappo- site. '7 Although Carmichael was generally regarded as an unreliable wit- ness, I accept his uncontradicted testimony that in 1976, some 2 years prior to the instant campaign, Bruce Batchelder made a statement to the effect that he would close the plant rather than deal with a union. Bruce Batchelder did not testify, and Carmichael's testimony in this respect was allowed to stand. Otherwise, the record, while tending to suggest Re- spondent's opposition to unionization during the 1978 campaign, does not disclose expressions of hostility in an equally excessive degree Carmichael to rescind his quit was motivated by unlaw- ful considerations; the 8(a)(3) and (1) allegations of the complaint in this respect are dismissed. C. Interference, Restraint, and Coercion 1. Surveillance On May 13, 1978, Ronald Beilin directed Armand Plourde to strengthen Respondent's security by hiring off-duty policemen of the local law enforcement authori- ty. Plourde was instructed to place the police inside the parking lot on company property. Beilin credibly testi- fied that on May 12 he made the decision to take such steps out of concern for the atmosphere at the plant fol- lowing the discharge of Fleming because of the threat that had been made and the possibility of sabotage. This augmentation of Respondent's existing security continued for approximately 2 weeks. There is no suggestion in the record that Respondent in retaining additional security had knowledge or a basis for believing that employees intended to utilize the area policed by the new security force for union or protected activity. Nor does it appear that the security guards were aware of the identity of employees, that they took steps to identify them, or to record their presence in the plant area on any occasion. Contrary to the General Counsel, neither the nature of the uniforms worn by the "moonlighting" police officers, nor the expense born by the Company to retain this group,' s detracts from Respondent's legitimate right to adopt preventive measures assuring that its property not be violated."9 I find that Respondent did not violate Sec- tion 8(a)(l) by its utilization of off-duty police officers during the 2-week period following May 12.20 2. The promise and grant of wage increases It is undisputed that, prior to 1978, Respondent award- ed annual periodic wage increases every May 1. Until 1977, the new increases were accorded at a time corre- sponding with the April 30 close of Respondent's fiscal year. In 1977, Respondent altered its fiscal year to run from September 1 through August 30. In 1978, Respond- ent felt it desirable to shift the date for the annual in- creases to conform with the end of the new fiscal year in 1978 and, because of this change, it was determined in 'a Other security guard firms retained by Respondent provided serv- ices at lesser rates. ID This conclusion is not altered by the fact that a police officer was present on Sunday, May 14, on the company parking lot-the location which employees sought to use as a rendezvous point prior to their at- tendance of the union meeting-and the fact that such officers were pres- ent while union officials and dischargees distributed union literature on subsequent days. The record is devoid of evidence that the presence of the officers was anything other than incidental to the legitimate exercise of the Employer's right. 20 Cf. Baptist Memorial Hospital, 229 NLRB 45 (1977), where surveil- lance by security guards was found to be unlawful in the context of the employer's enforcement of a no-distrinbution rule prohibiting employees from distributing union literature on hospital premises during their own time 229 NLRB at 51. See also Shrewsbury Nursing Home. Inc., 227 NLRB 47 (1976), where a like violation was found with respect to the hiring of a security guard the day after the union began distribution in circumstances where the guard selectively positioned himself to enable him to observe such distribution when the union representatives ap- peared. 97 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 1978 to delay implementation of employee wage increases to September 1, 1978. Consistent with such ob- jective, in April 1978, prior to the advent of union activi- ty, employees were notified that the anticipated wage in- creases would be deferred from May 1 to September 1, 1978. This deferral gave the initial impetus to union ac- tivity. In mid-June 1978, Respondent notified all employ- ees that the new wage increase would become effective July 1, 1978, rather then September 1 as announced prior to the advent of the Union. This update in the an- nounced timetable for the new wage levels is left unex- plained by the testimony. Nonetheless, in his brief, coun- sel for Respondent concedes as follows: Because of the magnitude of the employee concern over the amount of the increases, Respondent noti- fied all employees in mid-June of 1978 that the new wage increases would become effective on July 1, 1978 and would be retroactive to May 1, 1978 as previously promised .... Due solely to the large scale dissatisfaction with the delay involved in ad- justing to Respondent's new fiscal year, Respondent revised its implementation schedule to the July 1, 1978 date. From the foregoing it is apparent that this adjustment sought to quell employee dissatisfaction, emerging from the very issue which prompted employees to seek out the Union in the first instance. Respondent's action rep- resented a departure from the position announced to em- ployees prior to the union campaign and was calculated to resolve a fundamental grievance at a time when union organization remained viable. 2t As the employee discon- 21 Respondent defends on grounds that as of June 1978 organization activity had abated. This claim lacks merit. There is no evidence that the Union abandoned its representational interest. Furthermore, its mere sus- pension of overt efforts in pursuit of employee support, while an unfair labor practice proceeding of this type was pending, is neither unusual nor indicative of the campaign's curtailment. tent may not be disassociated from the union activity it produced, 22 the two are synonomous and, consistent with well-established Board policy, I find Respondent violated Section 8(a)(1) in this respect. 23 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1040, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By promising and granting benefits to induce em- ployees to refrain from engaging in union activity, Re- spondent violated Section 8(a)(1) of the Act. 4. Respondent did not violate the Act in any other re- spect. 5. The unfair labor practice specified in paragraph 3, above, is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.] 22 Beilin testified that employee discontent was derived from anxiety over the amounts of the increases, rather than their timing. Although it is difficult to imagine that such a specific objection would be held uniform- ly by all members of the work force and, indeed, if that were the case, that Beilin would have direct knowledge thereof, I fail to see the import of such a distinction. The unalterable fact remains that an effort to allay that unrest, whatever its specific focal point, was made during the organi- zational campaign under circumstances in which Respondent reversed its previously announced position. 23 See, e g., Arrow Elastic Corporation, 230 NLRB 110, 11i (1977). 98 Copy with citationCopy as parenthetical citation