DuPont de Nemours, E. I.

National Labor Relations Board - Board Decisions

Aug 6, 1982

263 N.L.R.B. 159 (N.L.R.B. 1982)

E. I. DUPOINT DE NEMOURS
E. I. DuPont de Nemours and Teamsters Local 515,
an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Cases 10-CA-14698 and 10-
CA-14776
August 6, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On September 25, 1981, Administrative Law
Judge James M. Fitzpatrick issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed exceptions and a supporting
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,' and conclusions2 of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein.
The General Counsel excepts to the Administra-
tive Law Judge's finding that Gary Jones' dis-
charge did not violate Section 8(a)3). We find
merit in that exception. As detailed in the Adminis-
trative Law Judge's Decision, Jones was very
active on behalf of the Union, management was
well aware of his prounion attitude, and manage-
ment had a deep-seated animus against the Union
and its supporters. From the time Bryan Lane
became Jones' immediate supervisor in late Febru-
ary 1979, Lane set out to intimidate and harass
Jones. By mid-June, Lane's harassment included:
often requiring Jones to perform significantly more
work than other employees; often requiring Jones
to take shorter or fewer breaks than other employ-
' Respondent and the General Counsel have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established polic) not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Product Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings.
a In his discussion of the no-solicitation rule, the Administrative Law
Judge relied on the standard set out in Esses International, Inc., 211
NLRB 749 (1974). He found that Respondent promulgated a no-solicita-
tion rule which violated Sec. 8(aXl). In adopting that conclusion, we
note that a new standard was announced in TR. W Bearings Division, A
Division of TR. W.. Inc., 257 NLRB 442 (1981). We find that Respondent
adopted a no-solicitation rule which violated Sec. 8(aXl) under either
Essex International or T.R. W
Chairman Van de Water does not subscribe to or adopt the decision in
T.R. W., supra
263 NLRB No. 15
ees; reprimanding Jones for alleged safety viola-
tions even though he was not guilty of unsafe con-
duct; reprimanding Jones for a problem that was
due to improper conduct occurring during the
prior shift; and often standing near Jones and star-
ing at him while Jones performed his work. The
Administrative Law Judge found, correctly, that
these activities constituted relentless, grinding ha-
rassment by management in violation of Section
8(aX3) of the Act.
By June 17, Jones had been subjected to Lane's
harassment for several months. On that day, Jones
was working on a machine in a noisy area of the
plant, where earplugs are worn, and employees
have to talk louder than normal in order to be
heard. Jones hollered to a fellow employee. Lane
had told Jones in May not to scream while work-
ing. Lane heard the holler and immediately came
up to Jones. Standing face to face, inches apart,
Lane told Jones, "I thought I told you to quit hol-
lering." Jones replied he would scream "any
goddam time or place" he wanted. Jones then
pushed Lane away by placing his hand on Lane's
chest. There was no other physical contact be-
tween the two men. Jones then said Lane had lied
about him and to him, had told "every goddamn
lie" that could be thought of, and if Lane were not
an old man, he would "stomp his goddamn ass in
the floor." Jones asked Lane if he wanted to fight.
Lane said nothing, moved away slowly, and then
left. Lane reported the incident to the shift supervi-
sor. Jones was suspended immediately and was dis-
charged the following day. Though the Adminis-
trative Law Judge found that the record estab-
lished a prima facie case of an unlawful termina-
tion, he concluded that Jones' pushing of and
words to Lane on June 17 justified Respondent's
discharge of Jones. We disagree.
An employee is not justified in resorting to vio-
lent self-help to settle differences with a supervisor.
Spotlight Company, Inc., 192 NLRB 491 (1971). We
do not condone physical assaults by an employee
on a supervisor. When an employee strikes his su-
pervisor, or fights with his supervisor, or even
slaps his supervisor, we consistently find that em-
ployee's conduct to be unprotected activity, and an
employer's discharge of that employee for such
conduct is normally upheld. J. P. Stevens & Co.,
Inc., 181 NLRB 666 (1970); Magnesium Casting
Company, Inc., 250 NLRB 692 (1980). But the situ-
ation here is far different from such cases. First, the
employee here did not strike, fight with, or slap his
supervisor. Instead, Jones moved his supervisor
away from his face by pushing him in the chest
with his left hand, palm open. Jones is right
handed. Lane was pushed back a step or two; he
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not fall. The Administrative Law Judge's reli-
ance on Great Western Coca-Cola Bottling Company
d/b/a Houston Coca Cola Bottling Company, 256
NLRB 520 (1981), wherein the employee either
slapped or hit his supervisor on the side of the
head, is thus misplaced. Second, Jones' moderate,
almost reflexive action was the culmination of a 3-
1/2-month campaign of intimidation and harass-
ment. Supervisor Lane forced Jones to work
harder, take fewer breaks, and endure numerous
trumped-up reprimands. Lane's relentless harass-
ment drove Jones to a point of no return; when
Jones finally crossed that point by pushing Lane,
Respondent seized upon Jones' action as a justifica-
tion for discharge. The statute does not permit Re-
spondent to so act. It is well settled that "[a]n em-
ployer cannot provoke an employee to the point
where [the employee] commits . . . an indiscretion
. . . and then rely on this to terminate [the] em-
ployment." N.LR.B. v. M & B Headware Co., Inc.,
349 F.2d 170, 174 (4th Cir. 1965). Where the em-
ployer has provoked the employee, the onus for
discharge should not be automatically transferred
to the employee. To allow the employer to use the
logical and intended result of its intensive harass-
ment campaign to justify its discharge of the sub-
ject of that illegal harassment would be to reward
the employer for its own wrongdoing. Bearing in
mind that here Jones neither struck nor slapped his
supervisor, we find that Jones' conduct was not so
unreasonable in relation to Respondent's provoca-
tive harassment as to justify his discharge. Louisi-
ana Council No. 17, AFSCME, AFL-CIO, 250
NLRB 880 (1980); McAllen Coca-Cola Bottling Co.,
Inc., 258 NLRB 789 (1981). We therefore find that
by discharging Jones Respondent violated Section
8(a)(3) of the Act.3
AMENDED CONCLUSIONS OF LAW
The Administrative Law Judge's Conclusions of
Law are amended as follows:
1. Insert the following as Conclusion of Law 6
and renumber the subsequent paragraphs accord-
ingly:
"6. Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act by suspending Gary Jones on June 17, and dis-
charging him on June 18, 1979, and thereafter fail-
ing to reinstate him."
I Our analysis here is similar to that traditionally used by the Board in
determining whether employees, who are participating in an unfair labor
practice strike and engage in strike misconduct, are entitled to reinstate-
ment. In those cases, the Board balances the nature of the employees'
conduct against the employer's unfair labor practices. H. N. Thayer Co.,
115 NLRB 1591, 1593, 1596 (1956); Juniata Packing Company, 182 NLRB
934, 935 (1970).
AMENDED REMEDY
Having found that Respondent has engaged in
unfair labor practices by unlawfully discharging
Gary Jones in addition to the violations found by
the Administrative Law Judge, we shall order Re-
spondent to cease and desist therefrom and to offer
Jones immedate and full reinstatement to his
former job or, if that job no longer exists, to a sub-
stantially equivalent position without prejudice to
his seniority or other rights and privileges previ-
ously enjoyed. Moreover, we shall order that Re-
spondent make him whole for any loss of earnings
he may have suffered as a result of the discrimina-
tion against him by paying him a sum equal to
what he would have earned, less net earnings, to be
computed in the manner prescribed in F. W Wool-
worth Company, 90 NLRB 289 (1950). Interest on
the backpay shall be computed as set forth in Flor-
ida Steel Corporation, 251 NLRB 651 (1977). (See,
generally, Isis Plumbing & Heating Co., 138 NLRB
716 (1962).)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
E. I. DuPont de Nemours, Chattanooga, Tennes-
see, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Insert the following as paragraphs 2(b) and (c)
and reletter the subsequent paragraphs accordingly:
"(b) Offer Gary Jones immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and
privileges previously enjoyed, and make him whole
for any losses he may have suffered because of the
discrimination practiced against him, in accordance
with the provisions set forth in the section of the
Board's Decision and Order entitled 'Amended
Remedy.'
"(c) Expunge from the personnel file of James
Merriman any reference to his discharge of May
17, 1979. Expunge from the personnel file of Gary
Jones any reference to his discharge of June 18,
1979."
2. Substitute the attached notice for that of the
Administrative Law Judge.
160
E. 1. DUPONT DE NEMOURS
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT promulgate, maintain, or en-
force rules which interfere with employee
union solicitation in nonwork areas of the
plant or during nonworking time.
WE WILL NOT refuse off-duty employees
access to the plant cafeteria, contrary to past
practice, in order to interfere with employee
union activities.
WE WILL NOT coercively question our em-
ployees concerning their union views and ac-
tivities.
WE WILL NOT ask employees not to wear
union insignia unless we have a valid business
reason.
WE WILL NOT promise benefits to employ-
ees to induce them to vote against a union.
WE WILL NOT, directly or by implication,
threaten employees that it will be futile for
them to have a union represent them.
WE WILL NOT threaten reprisals to employ-
ees for engaging in union activities.
WE WILL NOT threaten employees with loss
of promotions if they engage in union activi-
ties.
WE WILL NOT threaten employees with loss
of jobs in the future if they have a union rep-
resent them.
WE WILL NOT deny employees the right to a
representative of their choosing at interviews
to investigate matters involving discipline or
discharge.
WE WILL NOT harass, discipline, suspend,
discharge or otherwise ,discriminate against
employees for engaging in union activities or
for having charges filed with the Board or for
giving testimony under the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
join or assist Teamsters Local 515, an affiliate
of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization, and
to engage in other concerted activities for the
purposes of collective bargaining or other
mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer James Merriman and Gary
Jones immediate and full reinstatement to their
former postions or, if those positions no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges previously enjoyed, and
WE WILL make them whole for any loss of
earnings or benefits suffered by reason of the
discrimination against them, with interest, and
WE WILL expunge any reference to their dis-
charges from their personnel files.
E. I. DUPONT DE NEMOURS
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: In
this case DuPont supervisors repeatedly interfered with
employee rights both before and after a Board election
which the Union lost. Three weeks after the election
DuPont fired two prounion activists and a month later
fired a third. This third activist had gotten the Union to
file charges against DuPont with the Board and had
given an affidavit in support of those charges. Also prior
to his discharge he was the target of a series of harass-
ments by his immediate supervisor. I find hereinafter that
the interferences were unfair labor practices, that the dis-
charge of the first prounion activist was for valid cause,
the discharge of the second was unlawful discrimination,
and, although the third was discharged for valid cause,
the harassment which preceded it was unlawful.
This proceeding commenced initially with unfair labor
practice charges filed on May 21, 1979,' by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America against E. I. DuPont de Ne-
mours (Respondent, Company, or DuPont) in Case 10-
CA-14698. On July 12 these charges were amended to
reidentify the Charging Party as Teamsters Local 515, an
affiliate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union). In the meantime on June 22 the Union had filed
additional charges against the Company in Case 10-CA-
14776 which were also amended on July 12. On July 25,
based on the charges filed in Cases 10-CA-14698 and
10-CA-14776, a complaint issued alleging company
unfair labor practices in violation of Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended
(the Act). On July 12 the Union also filed other charges
against the Company in Case 10-CA-14825 which were
amended on August 6. On August 10 a second consoli-
dated complaint issued based on the charges in all three
cases. On January 21. 1980, an amendment to the original
consolidated complaint issued alleging additional unfair
labor practices. When the matter came to hearing the al-
l All dates herein are in 1979 unless otherwise indicated.
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legations in the second complaint based on the charges in
Case I0-CA-14825 were severed out, leaving for litiga-
tion only the matters identified with Cases 10-CA-14698
and 10-CA-14776.
The Company answered each complaint, admitting ju-
risdictional allegations, but denying that it engaged in
unfair labor practices. The issues remaining for determi-
nation are largely factual and fall into two broad catego-
ries; namely, independent violations of Section 8(a)(3)
and (4) of the Act. The 8(a)(1) issues involve company
rules restricting employee union activities, restrictions on
employee solicitation for the Union, promises of certain
benefits if employees would refrain from giving the
Union support, numerous interrogations respecting em-
ployee union activities, several statements underscoring
the futility of having union representation, several threats
of reprisals should employees engage in union activities,
and refusal to allow an employee to have a representa-
tive with him during an investigative disciplinary hear-
ing. The second broad category of issues involves dis-
crimination against three employees, namely, the dis-
charge of two because of their union activities, and the
discharge of the third because of his union activities and
because he filed charges and gave testimony in a Board
investigation. These issues were heard before me in
Chattanooga, Tennessee, on February 5 through 8 and
12 through 15, 1980.
Based on the entire record, including my observation
of the witnesses, and consideration of the briefs of the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE RESPONDENT
Respondent, a Delaware corporation, operates many
plants in various States, including a plant in Chattanoo-
ga, Tennessee, in which it manufactures nylon fibers. It
annually sells and ships from this plant directly to points
outside Tennessee finished products valued over $50,000.
Respondent is engaged in commerce. The plant operates
in three shifts and employs close to 3,000 persons.
II. THE UNION
The Union, a labor organization as contemplated in
the Act, conducted an organizing campaign at Respond-
ent's Chattanooga plant during the early months of 1979.
The campaign culminated in a Board-conducted election
on April 25 and 26 in a production and maintenance unit
of approximately 2,828 eligible voters. The Union lost
the election. No objections respecting the election were
filed and the Board certified the results.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Threats, Coercion, and Restraint
The complaint alleges that a variety of independent
violations of Section 8(a)(1) of the Act were committed
by Respondent during the campaign preceding the Board
election and thereafter. The evidence and findings re-
specting these are arranged herein seriatim.
1. The no-solicitation rule
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act on February 21 when Supervisors
Bryan Lane and Spencer Senters orally promulgated,
maintained, and enforced an overly broad, and therefore
unlawful, rule prohibiting employees from soliciting
fellow employees on behalf of the Union during non-
working time.
Ronald Watkins, a prounion activist who at the time of
the preelection campaign worked in the T-33 area on
special assignment checking hotplates, relieving the pa-
troller, and on other assignments that supervision gave
him, worked under the immediate supervision of Lane.
Senters was shift supervisor. Watkins credibly testified
that in late February he had in his possession a supply of
union authorization cards for the purpose of signing up
fellow employees. One day as he walked through his
area to the cordura room, fellow employee Michael
Byrd called him over to a blue zone (or smoking area)
and asked for a blank card so he could sign up for the
Union. Watkins, who was not interrupting his own work,
supplied him with a card. Byrd filled it out and returned
it to Watkins. At that point Lane came up and inquired
what they were doing. Watkins admitted he was signing
Byrd up for the Union. Lane then stated, according to
Watkins whom I credit, "Well, it is against company
policy signing a man up for the Union on plant proper-
ty." Watkins disputed the validity of such a rule, point-
ing out that they were in a designated blue zone. He told
Lane he did not know what he was talking about.
Thereafter Lane told him to come to the office. At
Watkins' suggestion, Lane brought Senters into their
meeting. Together they examined the written plant rules.
After examining them Senters announced, "Well, you
can sign a man up in the cafeteria, in the coke zone and
outside the plant." After some further discussion they
sent Watkins back to work. As he was leaving, Lane said
to him, "You know this will be documented in your
file."
Lane testified that it was later in the shift that he took
Watkins to the shift supervisor's office where they met
with Senters. He admitted that during this meeting he
told Watkins he could not get employees to sign union
cards on official company time except before and after
shift break, in the cafeteria during lunch period, in halls
and passageways, in restrooms, or in official break areas
such as the coke and coffee zone and the rap shack. 2 He
also admitted he told Watkins he would document the
incident and it would become part of Watkins' record.
Byrd did not testify. Although Senters did, he was not
asked about this incident. Lane's testimony did not con-
tradict that of Watkins, with the following exceptions.
Lane testified that Watkins left his work station to talk
with Byrd. However, I credit Watkins' explanation that
in fact he did not leave any work that he was doing at
the time to talk with Byrd. He explained he had com-
pleted one task and was moving to another location to
take up another task which did not require his immediate
2 A rap shack is a small soundproof room where employees take
breaks.
162
E. 1. DUPONT DE NEMOURS
attention when Byrd signaled to him. The second seem-
ing inconsistency is that some of Lane's testimony leaves
the impression that the conversation between Byrd and
Watkins did not occur in a break area. However, careful
examination of his entire testimony reveals that Byrd was
in a blue zone when he motioned to Watkins and that
this zone, which is used for breaks, is adjacent to a su-
pervisor's desk not being used at that moment. Watkins
went to Byrd in the blue zone and then, according to
Lane, Byrd used the supervisor's desk while filling out
the union authorization card. In these circumstances for
Lane to leave the impression that Watkins was soliciting
signatures outside of a break area is disingenuous. The
third discrepancy between the two witnesses results from
Lane's account that, at the conclusion of the meeting be-
tween Lane and Senters and Watkins, Watkins apologet-
ically agreed he had not complied with the written plant
rule on solicitation. I do not credit Lane on this because,
as pointed out in the General Counsel's brief, an apolo-
getic retreat is not consistent with the sequence of events
nor with Watkins' personality which, as was apparent
from his demeanor during his testimony, is not that of an
apologetic person.
The testimony of Watkins and Lane also varied in that
Watkins reported statements by Lane at the site where
Watkins was obtaining the signature of Byrd and that
Lane asserted Watkins could not so solicit on plant prop-
erty. Lane's testimony seems to place all statements in
the supervisor's office when he, Watkins, and Senters
met later in the shift. Respecting this variance I credit
Watkins because it seems unlikely that Lane would have
intervened without stating the basis for his intervention.
Considering the foregoing, I find that, on February 21,
Lane announced to Watkins and Byrd a no-solicitation
rule applicable to all plant property, a rule so broad as to
include all locations whether working or nonworking
and all times during a shift whether working time or not.
Requiring Watkins to report to the office in these cir-
cumstances was an enforcement of that rule. Lane's
verbal rule, being overly broad, violated Section 8(a)(1)
of the Act. Essex International, Inc., 211 NLRB 749, 750
(1974). I further find that during the meeting between
Lane, Senters, and Watkins at which Lane admittedly
told Watkins he could not solicit employees to sign
union cards on official company time, except before and
after shift break, in the cafeteria during lunch period, in
halls and passageways, and in restrooms or official break
areas such as a coke zone and the rap shack, he pro-
nounced an ambiguous rule which could lead employees
to think they could not solicit even if they were on their
own or nonworking time except in the particular places
mentioned by Lane. It was further ambiguous in that use
of the words "on official company time" could lead em-
ployees to think that solicitation was prohibited any time
during their shift even if it were not working time for
them as such. The burden of such ambiguity falls on the
employer which promulgates the ambiguous rule. And
Senters inferentially limited Watkins' right to solicit to
the locales of the cafeteria, coke zone, and outside the
plant. I find that the rule as variously pronounced by
Lane and Senters during the meeting violated Section
8(a)(I) of the Act. Essex International, Inc., supra.
2. Lane's interrogation and threat to Billingsley
The complaint alleges that, on or about March 3, Lane
unlawfully interrogated employees concerning their
union membership, activities, and desires and the union
membership, activities, and desires of other employees.
The complaint also alleges that on March 3 Lane threat-
ened employees with reprisals if they joined in activities
on behalf of the Union by threatening not to consider
them for promotion because of their union membership,
activities, and desires.
According to David Billingsley, a Black DBO opera-
tor in the cordura, T-13 area, at the time of the preelec-
tion campaign he became a union supporter, wearing
various prounion insignia such as union buttons and the
so-called dillies, an artificial daisy associated with the
Union. On March 5 he wore two Teamsters pins and
two dillies, one in front and one in back. Lane was then
a relief supervisor for the area and shift on which Bil-
lingsley worked.3 Lane was personally acquainted with
Billingsley, having previously been his immediate shift
supervisor. While Billingsley w as working, Lane came
up to him and asked if he had a minute. Billingsley said
he did and they went together to a nearby coke machine.
As they commenced talking, another employee, Jerry
Conners, came up, and Lane and Billingsley moved
away for privacy. Lane began by telling Billingsley that
he knew that Billingsley's first priority was to go into
business for himself. This was a matter which a year or
so earlier they had discussed. Lane continued, saying
that anything he could do to help Billingsley, he would.
He went on to say that the main thing he wanted to talk
about was the Union and asked Billingsley why he was
getting so involved in the Union. Billingsley replied that
it was something he had felt for a long time and some-
thing that he wanted. Lane then asked whether anyone
was pressuring him into campaigning for the Union. Bil-
lingsley replied no, that it was his own thinking. Lane re-
ferred to the fact that in the past Billingsley had assisted
him by participating in safety meetings and that the
Company had recognized him for that contribution.'4 He
said the Company was making more and more Black su-
pervisors and the potential was there for Billingsley if he
wanted it. He then added, "The Company wouldn't rec-
ognize you if you didn't pull that shit off." I find that
Lane was referring to the union insignia on Billingsley's
clothing. Lane continued that he would not be saying
these things if Billingsley were going to tell the people at
the union hall and that, if he (Lane) were confronted
with his remarks, he would deny them.
I base the above findings on the credited testimony of
Billingsley, a forthright witness with good recall of the
details of the occasion about which he testified. Lane's
testimony conflicts with Billingsley's. He, in effect,
denied making each of the statements on March 5 which
Billingsley attributed to him, and further denied that
such a conversation occurred. Although Lane's demea-
nor on the stand appeared forthright, his testimony did
3 A relief supervisor fills in for the regular supervisor on the I day per
month that the regular supervisor has off
4 Billingsley, a volunteer fireman, had shown films on automobile
safety, use of fire extinguishers, and other safety matters.
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not remain consistent. At one point he denied having any
conversations with Billingsley in 1979 although he was
his relief supervisor on several occasions. Later in his
testimony he indicated that he may have conversed with
Billingsley while he was his relief supervisor in early
1979, but only about Billingsley's job. He generalized
that his only conversations with any employees while he
was a relief supervisor during the period of the union
campaign were exclusively job related. Subsequently,
however, he admitted that as a supervisor he campaigned
on behalf of the Company during the preelection period
and regularly engaged employees in discussions about
campaign issues. In the circumstances I find the testimo-
ny of Billingsley more reliable.
I find that, in the March 5 conversation with Billings-
ley, Lane violated Section 8(a)(1) of the Act in various
ways. By asking Billingsley why he was getting so in-
volved with the Union, Lane unlawfully interrogated
him. In the context of the workplace, such an inquiry put
by a supervisor to a rank-and-file employee coercively
interfered with the freedom to engage in or not to
engage in conduct protected by Section 7. 1 also find
that in asking Billingsley whether anyone was pressuring
him into campaigning for the Union, Lane similarly vio-
lated Section 8(a)(1). Blue Cross-Blue Shield of Alabama,
225 NLRB 1217, 1222-23 (1976). This is not a case
where there is any showing of prounion coercion. There
is nothing about the context of the situation which
would have indicated to Billingsley that Lane meant co-
ercive pressure. His words were broad enough to include
solicitation and other types of noncoercive persuasion
designed to sell Billingsley on supporting the Union.
Since Lane's inquiry, as put, was broad enough to in-
clude such legitimate interchange between employees, I
find it was an unlawful interference. I further find that
his conversation as a whole indicated to Billingsley that
he should not wear prounion insignia and that to contin-
ue to do so would result in his not being considered for a
supervisory position. This was a threat of reprisal for en-
gaging in legitimate union activities and a violation of
Section 8(a)(1).
3. Coffman's interrogations of Boston
During the preelection campaign Michael Boston
worked in the T-33 spinning area as a creel warp opera-
tor under Supervisor Marvin Coffman. Boston was an
active union supporter in that he frequently wore T-
shirts bearing the union insignia as well as union buttons
and the dilly.
He testified that about the second week in March
Coffman initiated a conversation with him at his work-
place. According to Boston, Coffman asked why he
wanted the Union, commenting that he (Coffman) had
worked for unions before and "they wasn't worth a
shit." Boston explained that the reason he wanted the
Union was because employees at the plant did not have
anything but the industrial relations office, which
worked for the Company, and the plant manager had the
last word on anything.
Boston further testified, and I find, that a couple of
days later Coffman again had a conversation with him on
his job. Coffman asked him whether he had ever worked
under a union before. Boston replied he had at Atlas
Chemical Company. Coffman then commented, "You
mean to tell me you left the Teamsters to come to work
for DuPont?"5 Boston responded that no, he had left
Atlas to come to DuPont to make more money.
Coffman in effect denied having the first conversation
with Boston. He testified he did not recall asking the
question or making the statement respecting his own past
experience with unions and further testified flatly that he
never made any comment to Boston respecting his past
experience with unions. He admitted that on another oc-
casion and in another context he had told another em-
ployee about his past unfortunate experience with a
union when he was a rank-and-file employee with an-
other company. Coffman in effect also testified that he
did not ask Boston whether he had worked under a
union before. Although this was not a categorical denial,
he testified he did not recall asking Boston that question.
He did, however, recall that on one occasion Boston
stated he had worked at T & T (the same plant as Atlas
Chemical Company) and that he had made more money
there than he did when he came to DuPont. According
to Coffman he commented that it was hard to believe a
person would leave one place to go and work at another
for less money, and that Boston simply replied, "Well, I
did."
Insofar as the testimony of Boston and Coffman con-
flict, I credit Coffman as the more credible witness. He
was responsive to the questions put to him and held up
well on cross-examination, refusing to allow counsel to
put words in his mouth. He gave the impression of
having a good recall of what had and had not transpired.
Boston, although not a poor witness, was vague in set-
ting the time of the events about which he testified. By
comparison Coffman was the more credible witness.
I find in the first conversation on or about March 9
Coffman violated Section 8(a)(1) of the Act by asking
Boston why he wanted a union. Such an inquiry by a su-
pervisor to an employee in the workplace necessarily co-
erces the employee to reveal and to justify his thoughts
about union representation. Blue Cross-Blue Shield of Ala-
bama, supra. Assuming that the second conversation to
which Boston testified was the same one which Coffman
recalled, I find no evidence that anything stated by Coff-
man in that second conversation constituted a violation
of Section 8(a)(1) of the Act.
4. Kyle's promises of benefits to Campbell
About a month before the election James Campbell, a
spinning operator in the T-33 area, went to the denier
room for a brief break. He found fellow employee Joe
Beagles conversing with Shift Supervisor Grady Kyle.
Campbell heard Kyle tell Beagles that he (Kyle) could
not make any promises, but, if the Union did not come
in, to look for a good cost-of-living raise, and also that
he thought the Company knew that it was not doing the
employees right on the insurance and he thought it
would do something about that too.
L Other evidence in the record indicates that the employees at Atlas
Chemical Company were represented by the Teamsters.
164
E. I. DUPONT DE NEMOURS
I base these findings on the credited testimony of
Campbell who was not a union supporter. Beagles did
not testify. Kyle testified he did not recall such a conver-
sation and then generally denied ever telling any employ-
ee that if the Union did not come in the Company would
give a cost-of-living raise or make any change. Within
the general time frame of the conversation reported by
Campbell, Kyle did recall talking with Beagles and some
other employees, but not including Campbell, about
medical insurance for employees. Kyle recalled that he
answered a question put to him by Beagles about wheth-
er the medical expense deductible would be changed
back from $300 to $100. Kyle testified that he answered
that he had not been told anything about any change at
that time. I credit Campbell over Kyle because Campbell
had a specific recollection of a specific conversation
which Kyle testified he did not recall. Although Kyle
testified about a conversation with Beagles at or about
the same time, he placed it at a slightly different loca-
tion, and did not place Campbell at the conversation. It
is not at all clear, therefore, that he was recalling the
same conversation about which Campbell testified. Final-
ly, Campbell was the more precise and in demeanor
more forthright witness, while Kyle was more verbose
and less precise in his testimony.
Based on the foregoing, I find that about a month
before the election Kyle told Beagles in substance that if
the Union lost the election the employees could look for
a cost-of-living raise and possibly an advantageous ad-
justment in insurance benefits. In the context in which
they were made, Kyle's remarks were conditional prom-
ises of a raise and improved insurance if the Union lost
the election and, therefore, constituted inducements to
his employee listeners to vote against the Union in the
Board election. Such inducements were unlawful inter-
ference with employee Section 7 rights and violated Sec-
tion 8(a)(1) of the Act.
5. Threats of the futility of union representation-
Senters' threats to Hale
The General Counsel contends that Respondent violat-
ed Section 8(a)(l) of the Act by unlawfully conveying to
the employees the futility of selecting the Union as their
bargaining representative because, under the Company's
master plan for bargaining, it would make only a single
proposal on a take-it-or-leave-it basis. The General Coun-
sel contends that this contention is established by evi-
dence of five separate statements by company supervi-
sors to employees at various times during the preelection
period describing such bargaining tactics in almost identi-
cal terms and thereby conveying to the employees the
clear message, which was reasonably understood by
them as a company statement, that it would be futile to
designate the Union as collective-bargaining representa-
tive because the Company would in any case bargain on
a one proposal, take-it-or-leave-it, basis resulting in no
advantage for the employees over what the Company
would have granted without the Union.
The first of these alleged threats involved Supervisor
Spencer Senters and employee James Hale. Hale worked
as a draw bulk operator in the T-13 area. In the latter
part of March he with 10 or 12 other employees in the
area attended an information and discussion meeting
(I&D meeting) presided over by Senters, his second line
supervisor. 6 Senters told the employees present that in
bargaining other companies negotiate with unions by a
method of offers and counteroffers until agreement is
reached. He said DuPont negotiates differently in that it
uses a four part approach in which matters to be dis-
cussed are divided into four broad categories of wages,
benefits, contract terms, and other items that the law re-
quires to be bargained before changes are made. Using a
blackboard he graphically illustrated these categories,
drawing a column for each. He described how DuPont
negotiators listen to and consider union proposals in each
category which together make up the union package of
proposals. After considering these, company negotiators
then respond with a package made up of the best coun-
terproposals which the Company can make in each cate-
gory. Senters went on to say that the Union, after con-
sidering these company counterproposals, "would either
accept them or-." Then, without finishing his sentence,
he turned to the blackboard and wrote the word
"strike."
I base the foregoing findings on the credited testimony
of Hale. Senters' testimony is generally consistent with
Hale's. To the extent that they disagree on details, I
credit Hale who gave a lucid account of how Senters
used the blackboard, an account which Hale would not
be likely to invent. Senters testified without contradic-
tion, and I find, that his closing remark to the group was
that he wanted to make sure that they understood one
point, that he was not telling them that DuPont would
not bargain if a union were voted into the plant.
Hale also testified about a conversation in early March
among himself, another employee, and a supervisor
named Jimmy Spencer. In a footnote in his post-hearing
brief counsel for the General Counsel moves to amend
the transcript by substituting the name "Spencer Senters"
wherever Hale refers to Jimmy Spencer. I deny the
motion because (a) it does not comply with the Board's
Rules and Regulations, Section 102.24, and (b) there is
no basis other than speculation for finding that Hale
meant Spencer Senters when he said Jimmy Spencer.
I find that at the I&D meeting in late March Spencer
Senters conveyed to the employees present the idea that,
if the Union were chosen to represent them, the Compa-
ny would negotiate with the Union by listening to union
proposals and then making a single final overall package
counterproposal which the Union could accept, but, if it
did not, a strike would result. I further find that from
this the employees would reasonably conclude that the
necessary implication from Senters' statement was that
by such company bargaining tactics the employees
would end up with no better terms and conditions of em-
ployment than if they had no union representation.
Senters thereby informed the employees that it was futile
to select the Union to represent them. In making such
statements he violated Section 8(a)(l) of the Act. Cham-
I It is established plant practice for shift supervisors to hold monthly
I&D meetings with employee groups small enough to allow useful discus-
sion.
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pagne Color, Inc., 234 NLRB 82, 87 (1978); Montgomery
Ward & Co., Incorporated, 234 NLRB 13 (1978).
6. Acuff solicits Qualles to remove union insignia
During the campaign James Qualles worked as a draw
twist operator in the 9-B textile area under the supervi-
sion of Robert Acuff. As one of the more highly visible
union proponents, Qualles typically wore one or more
union insignia promoting the union cause. On a date not
specified in the record, but during the campaign, Qualles
asked Acuff for permission to leave his work station, his
own work being caught up, and go to another area
called beaming to visit an employee there. According to
Qualles, whom I credit, Acuff gave his permission pro-
vided Qualles would take off his union insignia, explain-
ing that if he did not Acuff would be receiving telephone
calls from the beaming area supervisors as soon as
Qualles arrived there. Acuff said his comments were off
the record and, if he were questioned, he would deny
them. Qualles understood, I find correctly, that Acuff
was not denying him permission to go to the beaming
area but was requesting that he first remove his union in-
signia. Qualles replied, "Well, if I have to take my but-
tons off and my union literature off I don't need to go
there." Nevertheless, a short while later, he departed his
own area in order to visit the employee in beaming, his
understanding being that Acuff was not denying him per-
mission to go but was requesting that he remove his
union insignia before he did so, a request which Qualles
rejected. He did not remove any of his insignia and no
adverse consequences resulted therefrom.
Acuff generally corroborates Qualles, although his
version is somewhat milder. According to Acuff he told
Qualles he could go, but it would be better if he were
not so decked out, meaning the union insignia. Acuff fur-
ther explained that he expected, that if Qualles showed
up in the other area wearing his usual insignia, Acuff as
his superior would receive telephonic inquiries from su-
pervisors in the other areas checking as to whether
Qualles in fact had permission to be away from his area.
It is implicit in this explanation that, if Qualles appeared
in beaming wearing no union insignia, Acuff would not
receive the unwanted calls. Whatever Acuff's motives,
they were not based on any practical considerations of
safety or of interference with production which might
justify managerial interference with, or limitation on, the
exercise of employee protected rights. It is immaterial
that Qualles did not take Acuff seriously and ignored his
request. Objectively, Acuff's communication as a super-
visor to Qualles, an employee subject to his discipline,
was a coercive interference with, and a limitation on, his
Section 7 rights to display his union sentiments on his
clothing. There being no valid business justification for
such limitation, it was a violation of Section 8(a)(1) of
the Act.
7. Rowe's interrogation of Watkins
As previously noted, Ronald Watkins worked on spe-
cial assignment in the T-13 area. About 2 or 3 weeks
before the election, sometime between April 4 and 11,
Watkins wore a Teamsters T-shirt in the plant. Third
Line Supervisor Joseph Rowe came up to him and
asked, "What are you doing with that tee shirt on?"
Watkins responded, "Well, I needed someone to repre-
sent me." Rowe just turned, shook his head and went the
other way. The implication from this rhetorical question
clearly was that Watkins had no business identifying
with the Teamsters.
Rowe denied generally that in April he asked Watkins
or any employee during the campaign why they were
wearing the union T-shirt or what the employee thought
the Union was going to do for him. As between Watkins
and Rowe, Watkins' testimony has the advantage of
being a specific account respecting an incident that was
personal to him and, therefore, something he would
likely recall. Rowe, on the other hand, in his capacity as
a supervisor during the campaign estimated that he had
talked with a couple of hundred employees about union-
related matters. He admittedly could not remember each,
or when they occurred, or what was said. Yet he testi-
fied that he specifically recalled he never had a conver-
sation with Watkins pertaining to anything in the union
campaign. This is not persuasive evidence. As between
Watkins and Rowe, I credit Watkins and find that in
early April, sometime between April 4 and II, Rowe put
the question to him noted above. As found elsewhere
with respect to similar interrogations during the cam-
paign, this was coercive and an interference with Wat-
kins' Section 7 rights. I find that Rowe violated Section
8(a)(l) of the Act. Blue Cross-Blue Shield of Alabama,
supra.
8. Senters' threat to deny promotion to Watkins
About 2 to 3 weeks prior to the election, around the
time that Rowe interrogated Watkins, on an occasion
when Watkins was in the shift office and wearing his
union T-shirt, Senters commented, "If you hadn't been
wearing all of this tee shirts and stuff you would have
been supervisory material." Watkins responded, "Well, I
don't want the headache, it is not for me."
Senters generally denied he made such a statement, but
in view of Watkins' specific account, his forthright de-
meanor, and the absence of any erosion of his testimony
on cross-examination, I credit his account rather than the
contradicting general denial of Senters.
The substance of Senters' comment was that, but for
Watkins' exercise of his legitimate right to wear insignia
on his clothing, he would be eligible for a supervisory
position. Thus, the price of his union support was forfeit-
ure of the opportunity for promotion. Such a comment
necessarily violates Section 8(a)(1) of the Act.
9. O'Dell's threats of futility to Billingsley
As already noted, David Billingsley worked in the
cordura room of area T-13. He and Phillip O'Dell, the
shift supervisor in that area, were well acquainted and
over the years had often engaged in friendly conversa-
tion.
Sometime during the first or second week of April,
while Billingsley was at work, O'Dell approached him
saying, "Brother Dave, let's talk about the Union." They
then discussed the Union, O'Dell noting that the Union
166
E. I. DUPONT DE NEMOURS
could not have helped two women employees who
sometime earlier had been discharged for cause. The
conversation then turned to what Steve Fisher, a Chemi-
cal Workers representative, had said at a recent meeting
at the Teamsters hall regarding what the Chemical
Workers Union had won in wage negotiations at a
DuPont plant in Texas. Apparently Fisher had stated
that the Company had offered an increase of 6 percent
which the employees rejected, and subsequent bargaining
resulted in agreement on an increase of 8 percent. O'Dell
told Billingsley that Fisher was wrong, that the Compa-
ny did not offer a package and then come back later and
give another one. He said that when the Company makes
a package proposal, that is it. When Billingsley expressed
doubt as to the accuracy of O'Dell's comments, O'Dell
offered to produce the negotiator for the Chemical
Workers who had negotiated the Texas contract for Bil-
lingsley to talk with.7
The conversation next turned to the topic of benefits
and wages. On this O'Dell told Billingsley that wages
and benefits are not negotiable items. Billingsley asked
O'Dell if he was sure about that and O'Dell replied that
he was not sure, he was positive. He then said maybe he
did not know, that the best thing for Billingsley to do
was some soul searching on the matter.
Although on cross-examination Billingsley's testimony
regarding his conversation with O'Dell was somewhat
impeached by his failure to satisfactorily explain why he
had not included some parts of the conversation reported
in his pretrial affidavit given June 14, his testimony is,
nevertheless, the more credible evidence respecting the
conversation.
O'Dell testified he had had many conversations with
Billingsley and it was difficult to recall any particular
one. He testified generally that he did not recall any con-
versation in which he told Billingsley that DuPont
would not negotiate with the Union concerning wages or
benefits. However, he did recall talking with him about
wages at the Company's Houston plant and Billingsley
recounting to him what someone had said they had
gotten in negotiations there. He denied, however, making
any comment respecting Fisher or offering to produce a
negotiator in the Houston bargaining. He also testified he
did not recall making any statement to Billingsley that
wages and benefits are not negotiable. However, he went
on to testify as follows:
The only comment that I ever made to David Bil-
lingsley concerning wages and benefits was basical-
ly the same comment I made to all my employees
when we discussed wages and benefits, and that is,
that in negotiating wages and benefits, that the
DuPont Company, whether it be in dealing with the
Union, or in benefits that affect all DuPont's em-
ployees, when there were revisions to be made or
changes to be made for contracts to be negotiated,
the DuPont Company, or individual plant that was
dealing with the Union. would look at what they
felt was best for their employees, for those employ-
Although it seems illogical that O'Dell would have offered to pro-
duce a union negotiator, the evidence is unamhiguous and permits no dif-
ferent construction.
ees involved, and when they went to the bargaining
table to make an offer, that they went and made
their best offer first.
And as far as the benefits that affect all DuPont em-
ployees, such as pension, retirement plan, thrift
plan, those sort of things, I told David that the
group of people, whoever this was that was respon-
sible to keep up with those programs or benefits,
when they felt a change was needed, then they
would do the same thing; they would look at what
was best, what the Company felt was best, what
they could do, and then they would make this
change known if it was to a plant that had a union.
They would review it with the Union and then with
whoever it needed to be reviewed with, or what-
ever process they used, and then this would be pub-
lished and known.
On cross-examination O'Dell explained that under Du-
Pont's system this would be their first offer but, that if
this were not agreeable, then the bargaining process
would be put into motion. He categorically denied tell-
ing Billingsley that DuPont makes one offer and that is
it.
I do not credit O'Dell for the following reasons. Al-
though he and Billingsley had many conversations,
O'Dell admittedly discussed the bargaining process with
all employees under his supervision, not just Billingsley.
Under these circumstances his recall of exactly what was
said in talking with Billingsley would likely be less accu-
rate than that of Billingsley who did not have these su-
pervisory responsibilities. Although O'Dell may have de-
veloped a set speech through constant repetition, that
does not fit with the specific evidence of his conversa-
tion with Billingsley nor with the familiar relationship
between them.
Further, O'Dell was a disingenuous witness. During
the preelection period he like other supervisors explained
to rank-and-file employees on a regular basis the Compa-
ny's antiunion position. Yet his testimony respecting the
Company's long-established bargaining policy does not
coincide with that set forth in company bulletins to its
supervisors distributed during the preelection period.
Thus, the bulletin notes that the company approach to
bargaining differs significantly from the conventional ap-
proach used by most of industry in that in bargaining it
does not hold back but offers what it can consistent with
fair employee treatment and good business practice, and
that this approach is not altered by strikes or threat of
strikes. The bulletin notes three basic differences between
the DuPont approach and that found in industry general-
ly. The first is that in most industry collective-bargaining
agreements the contract covers most topics including
wages, benefits, administrative policies, and other condi-
tions of employment. By contrast, in DuPont collective-
bargaining agreements wages are separate from the con-
tract and are not tied to the term of the contract. Bene-
fits are also separate from the contract, being set by the
industrial relations plans and policies system of the cor-
poration and being uniform in all plants. The second dif-
ference Is that in the conventional bargaining situation
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union starts bargaining with excessive demands while
management counters with inadequate counterproposals
followed by a marathon "give-and-take" series of negoti-
ations which may ultimately result in agreement on a
middle ground. By contrast, "DuPont's approach, after
considering all factors, is to make a firm offer." The
third difference (which perhaps is not pertinent here) is
that most industry bargaining is done in secret while
DuPont insists that bargaining be done in a fishbowl at-
mosphere. A final point made in the bulletin is that com-
pany policy has been to resist strikes in support of union
bargaining demands by continuing to operate the plant
with nonunit employees, a plan which has proved suc-
cessful. Read as a whole this bulletin can only be under-
stood to mean that company policy in making its "firm
offer" is to make its best offer first and to hold firm to
that proposal even in the face of a strike. Implicit in the
policy is that all company bargaining is consolidated into
the Company's "best offer" and that this is the last and
only offer the Company will make. Considering O'Dell's
15-year tenure as a supervisor, there can be no doubt
that he understood this policy. Moreover, the policy is
consistent with what Billingsley understood O'Dell was
telling him. Accordingly, O'Dell's testimony that bar-
gaining would follow union rejection of the Company's
"best offer" must be considered an inaccurate statement
under oath. For these reasons, and even though I am not
entirely satisfied with the testimony of Billingsley, I con-
sider it the more credible of the two and therefore base
my findings on it.
I find that in making the statements to Billingsley as
reported by him, O'Dell expressed the company policy
that if the Union were chosen to represent the employees
the Company would not engage in give-and-take bar-
gaining but would make its best offer first and in effect
said the Company would hold firm to that. In hearing
this prediction, employees such as Billingsley could rea-
sonably conclude that by selecting the Union they would
end up with a bargaining result no better than if they
had no union and, therefore, it would be futile to support
the Union or to have union representation. For O'Dell to
make such predictions of future company conduct was
an interference with employee Section 7 rights and a vio-
lation of Section 8(a)(l) of the Act.
10. Wisseman interrogation of Snow
At the time of the preelection campaign Edwin "Bud"
Wisseman was safety engineer as well as protection su-
perintendent for the plant and a member of the manage-
ment team. In the campaign he had a special assignment
to assist in composing company "fact sheets" which
were distributed by supervisors among the employees for
the purpose of presenting management's point of view
and offsetting the Union's organizing. Employee Leroy
Snow, Jr., a yarn inspector in the T-13 area, and an out-
spoken union supporter, was well acquainted with Wisse-
man. Over an extended period of time long antedating
the union campaign but continuing into the preelection
period, the two engaged in numerous discussions on a
wide range of topics of mutual interest including, among
others, sports, economics, social problems, and unions.
Snow's views in support of unions generally were well
known to Wisseman long before the Teamsters campaign
began. During that campaign their conversations were
more or less repetitive of earlier ones with the addition
that Snow talked about the things he expected the Team-
sters to do for him, and Wisseman stated his belief that
most of those things would not in fact happen.
Wisseman testified credibly that on those occasions on
which they discussed unions Snow, and not he, initiated
the topic. Wisseman credibly denied asking Snow the
question, assuming the Union was voted in and then did
not do what the employees expected, what then? He also
denied asking Snow whether he would be one of those
who would then support decertification of the Union.
Wisseman testified that he believed that Snow was firm
in his support of the Union. He also denied asking Snow
how he felt about the Union or what he felt the Union
could do for him. He explained this by testifying that he
never had to ask because even before the campaign
Snow had made his position clear and there was no need
to ask him what his views were.
On cross-examination Wisseman admitted that he dis-
cussed with Snow those things the Teamsters could do
for him as an employee and some of the reasons why he
might have wanted to have a union represent him in the
plant. He also expressed his sentiments that he did not
believe the Teamsters could do all the things it promised.
He also admitted that he had numerous conversations
with many employees, as well as Snow, regarding em-
ployee concerns about the things unions could do for
them, and Wisseman's belief that the Teamsters could
not deliver on all their promises. He further admitted
that he asked some employees how they would feel if all
union promises were not kept. He also admitted that
over the extended period of the campaign he must have
touched on the topic of decertification of a union in his
discussions with Snow. He denied, however, asking
Snow how he would feel if the Union did not fulfill all
of its promises. But he did admit asking Snow on April
20 whether Snow would be willing in the future, in case
events proved him wrong about the Union, to come to
Wisseman and admit he had been wrong, even as Wisse-
man was willing to agree to come to Snow if events
went the other way. He testified credibly that his best
recollection was that he did not ask Snow how he would
feel if the Union did not fulfill all its promises.
Snow's testimony conflicts with Wisseman's. As be-
tween the two, Wisseman was the more impressive wit-
ness. Snow testified that during the preelection campaign
he on several occasions had discussions about the Union
with his supervisors including Charles Kennebrew,
Philip O'Dell, James Kyle, and Wisseman. He was asked
when he had "the" conversation with Wisseman and an-
swered somewhat vaguely that it was 2 or 3 weeks
before the election. Snow reported that while Wisseman
and he were talking, Wisseman asked him what if the
Union got in and did not do the things the employees ex-
pected it to do, what then? Snow testified that he replied
that they could decertify the Union, to which Wisseman
responded that it would not be as easy as it seemed, and
asked Snow whether he would be one of the ones to
lead the decertification of the Union like he was now
168
E. I. DUPONT DE NEMOURS
campaigning for the Union. Snow testified that he stated
he would because he felt he would be obligated to do so
since he had led employees toward the Union. He testi-
fied that Wisseman commented that instead it would be
people like Mrs. Wisseman (an employee opposed to the
Union) who would lead a decertification movement.
There followed a series of questions in the examination
which leave the record unclear as to whether Snow's an-
swers refer to the same occasion as his prior testimony
or other occasions when he conversed with Wisseman.
He was then asked whether there was any further con-
versation about the Union and he reported, "We talked
about the things that I felt it would do for us and things
like, uh, how it would help us, we talked about that."
Snow then testified in answer to a leading question that
"He asked me the things I thought would be accom-
plished by having a union, and what would it do for us."
On cross-examination Snow admitted that parts of the
discussions with Wisseman to which he had referred on
direct had occurred on different days.
All in all Wisseman was less vague, more responsive,
and a more believable witness of the two. Accordingly,
insofar as their testimony conflicts, I credit Wisseman, in-
cluding his denials that he questioned Snow in a coercive
manner thereby interfering with Snow's Section 7 rights
and violating Section 8(a)(1) of the Act.
I . Harris' threats of futility at the I&D meeting
At the time of the preelection campaign Shift Supervi-
sor Ulysses "Cotton" Harris supervised approximately
100 employees in the 9-B textile area. During April he
held I&D meetings with his shift employees, each includ-
ing from 12 to 15 employees. Employee James Qualles
attended one of the meetings on the evening of Wednes-
day, April 11, 2 weeks prior to the election. As was his
practice, Harris began by discussing changes in the busi-
ness situation, then asked if there were any questions
concerning the business situation or any complaints about
jobs. According to Qualles, another employee raised a
question as to how the Company would negotiate wages
with the Union. Harris replied that DuPont did not ne-
gotiate wages. He explained that what he meant was that
DuPont and the Union could not consider proposals and
counterproposals on wages because any decision made
on wages would affect other DuPont plants as well as
the Chattanooga plant.
Harris denied stating that DuPont would not negotiate
wages with the Union. I do not credit his denial because
the remark attributed to him wag a logical preliminary to
other specific remarks which he admittedly made. More-
over, Qualles attended only one such meeting that month
while Harris presided over seven or eight and his specif-
ic recall of any particular meeting likely would be less
precise than Qualles' recall of the one he attended.
Harris recalled a question coming up in some I&D
meeting in April about how DuPont negotiates contracts
with a national union. He thought that one of three or
four employees could have raised a question of how
DuPont bargained with a national union. He testified
that he answered as follows:
I told them that usually, I believe I explained a little
bit, that the Unions and Companies usually made
offers and counter offers to settle somewhere in be-
tween, but that DuPont usually made an offer that
after taking consideration of the employees' needs
and the needs of the business, and made their best
offer.
Harris also recalled that an employee whose identity
he could not recall asked about whether wages were ne-
gotiable. Harris was not sure whether the question was
raised in one of the April meetings, or about the same
time on the floor of the plant, or in the rap shack. He
gave the following ambiguous answer, "I guess that the
Company would not negotiate, that all the items were
negotiable."
On cross-examination Harris affirmed that normally
bargaining between an employer and a union involves
one side putting up an offer and the other side putting up
a counteroffer, with the negotiators going back and
forth, but that DuPont does it differently in that it takes
into account the needs of employees as well as other fac-
tors and then comes up with its best offer. He also af-
firmed on cross-examination that during the preelection
period he told employees that he did not know if the
Union could get them any more money.
On cross-examination Qualles testified that at the I&D
meeting which he attended, Harris said the Company
was required by law to bargain in good faith, and also,
when an employee inquired on that topic, said it would
not negotiate wages. Qualles testified, "Mr. Harris said it
would not negotiate wages because if they sat down and
negotiated wages, it would affect the other plants, as
well as Chattanooga's plant."
I find that, by contrasting the way DuPont bargains
with the manner in which negotiations usually are car-
ried on, and by making such statements to employees
during the preelection period, Harris in substance in-
formed them that if the Union were selected as the rep-
resentative of the Chattanooga plant employees DuPont
would not be negotiating with the Union in the give-and-
take manner in which employers and unions normally ne-
gotiate. I further find that by stating that in negotiations
with the Union, should it be selected by the employees,
the Company. instead of bargaining by the give and take
of offers and counteroffers, would make its best offer,
Harris implied that the Company would make only one
offer and that it would not thereafter deviate from that
proposal. From these statements the employees reason-
ably could understand that Harris was predicting that
DuPont would adopt a take-it-or-leave-it position by set-
tling on a single "best" offer to which it would adhere
and which, once stated, would not thereafter be negotia-
ble. I further find that, hearing this prediction, the em-
ployees could only conclude that he was advising them
that it would do them no good to have union representa-
tion because, even with union representation, the Compa-
ny would, as was its practice in the absence of a union,
settle upon what it deemed best for the employees,
would adhere to that position with an unchangeable pur-
pose, and in the final analysis it would prove to have
been futile for the employees to have selected the Union.
169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This I find was a violation of Section 8(a)(1) of the Act.
Champagne Color, Inc.., supra; Montgomery Ward & Co.,
supra.
12. Hutcherson's interrogation of Swearingen
During the preelection period Helen Swearingen, who
was very active on behalf of the Union, worked in the
T-32 area as a miscellaneous operator. One of her duties
was to transfer finished yarn from that area to the T-37
area where Joe Hutcherson was section supervisor.
About 2 weeks before the election, approximately April
11, while Swearingen was making one of these deliveries
of yarn to the T-37 area, Hutcherson asked her if he
could ask a question. She replied yes. He then asked
what "they" had ever done to make her so strong for the
Union. She replied that she just believed in unions, that
she thought everybody ought to have a union. Hutcher-
son commented that that did not leave him a whole lot
left to say. Swearingen understood that when Hutcher-
son said "they" he referred to the Company. The above
findings are based on the credible testimony of Swearin-
gen.
Hutcherson did not directly deny that the conversation
as reported by Swearingen occurred, his testimony being
that he did not recall such a conversation. On the other
hand, he admitted to similar inquiries and remarks made
to one or two other employees. Considering that Swear-
ingen was a high profile union supporter, known to Hut-
cherson as such, and that Hutcherson had similar conver-
sations with other employees, I do not credit his indirect
denial that the conversation as reported by Swearingen
in fact took place.
It is established beyond question that employee free-
dom to exercise Section 7 rights includes freedom from
employer inquiries respecting employee views about
unions. An aura of coercion attaches to questions by a
supervisor, who has the power to discipline, put to a
rank-and-file employee in the workplace. Blue Cross-Blue
Shield of Alabama, supra. Accordingly, I find that Hut-
cherson's question put to Swearingen was a violation of
Section 8(a)(l) of the Act.
13. Standefer's interrogation of Cochran
At the time of the campaign Ricky Cochran worked as
a miscellaneous operator in the T-13 department. He tes-
tified that in about the second week in April (April 8-14)
Darrell Standefer, a member of the management support
team and a supervisor, asked him what he thought of a
union and did he think it would get in at DuPont. At the
time Cochran was in his own work area. Standefer was
passing by, stopped, and put his questions to him. Coch-
ran replied that he had no comment. That ended the
conversation.
When he testified Standefer was asked whether in
early April he had asked an employee or employees in
the T-13 area what they thought about the Union and if
they thought the Union would win the election. He re-
plied, "No." He testified on cross-examination during the
preelection campaign he never initiated any conversa-
tions with any employees respecting the union campaign.
He was further asked if he knew Cochran and admitted
he did. He was then asked if he recalled ever having any
discussion with him. He responded that he talked daily
with Cochran, but he did not remember a specific con-
versation such as Cochran had reported in his testimony.
He further testified he could not recall specifically what
was said in the conversations which he did have with
Cochran. With the evidence from two credible witnesses
in this posture, I credit the more specific account of
Cochran over the more general one of Standefer because
for Cochran the encounter was a personal experience
which he more likely would recall. I find, therefore, that
Standefer asked the question in the form reported by
Cochran.
I further find that this inquiry, being put by a higher
supervisor to a rank-and-file employee in the workplace
during working hours, was coercive and an interference
with Cochran's Section 7 rights because it called for him
to reveal his views respecting union representation and
his prognosis of the chances of the Union's winning the
election, both matters about which management had no
right to probe. Accordingly, I find that Standefer violat-
ed Section 8(a)(1) of the Act. Blue Cross-Blue Shield of
Alabama, supra.
14. Wright's threat of reprisal to Sharp
As already noted, union campaign devices included in-
signia on various types of clothing and various union
buttons with promotional legends. Joel Sharp, an active
union proponent who worked as a spinning operator in
the T-33 area, credibly testified without contradiction
that about 2 weeks before the election he brought into
the plant a bag of a new style of union buttons, placing
the bag on his desk. James Wright, the shift supervisor,
came up to him and asked if he had union buttons in that
bag. Sharp denied that he did, saying that it was his
lunch. Wright then stated, "I hope that you are not pass-
ing out union buttons, you could get into trouble for
passing these out."
Coming from the mouth of the supervisor, this remark
necessarily carried the implication that legitimate distri-
bution of prounion buttons would result in some unspeci-
fied adversity to the employee at the hand of manage-
ment and with respect to the employee's employment. I
find Wright's statement violated Section 8(a)(1) of the
Act.
15. Uren's interrogation of Jackson
Jerry Jackson was a denier operator in the T-33 area.
Since the first of Januarty and throughout the preelection
campaign Claude Uren was his first line supervisor. Jack-
son, a visible union supporter, wore various prounion in-
signia in the plant, facts known to Uren. Jackson testified
credibly that a week before the election Uren ap-
proached him at his work and asked him why he wanted
a union. Jackson responded that it was because of the
Company's slowness in responding to employee griev-
ances.
Uren categorically denied making such an inquiry or
having such a conversation with Jackson. Both appeared
to be credible witnesses and there is little to choose from
in resolving the conflicts in their testimony. Jackson's
170
E. I. DUPONT DE NEMOURS
testimony has the advantage of being more specific in
that he was describing a specific event. For that reason I
credit him and find that, about a week before the Board
election, Uren asked him why he wanted a union and
that Jackson replied giving him his reasons. I further find
that this occurred in the plant during working time. Be-
cause of the relative status of the two participants and
the context in which the inquiry was made, I find it to
be coercive and an interference with Jackson's Section 7
rights. Accordingly, in making the inquiry Uren violated
Section 8(a)(1) of the Act. Blue Cross-Blue Shield of Ala-
bama, supra.
16. Pickett's interrogation of Frazier
About a week before the election, around April 17 or
18, Bobby Joe Frazier, a rank-and-file electrician work-
ing at the time on the second floor of the T-33 area, had
a conversation with the T-33 relief supervisor, Ralph
Pickett. Pickett initiated the conversation. According to
Pickett, he asked Frazier how he thought the union cam-
paign election was going. Frazier replied that he thought
the Union was coming in.
It is undisputed that Frazier was an ardent union sup-
porter and known to be such among fellow employees
and among the supervisors, including Pickett. Other elec-
tricians had indicated to Pickett that they believed Fra-
zier to be totally committed to the campaign, a conclu-
sion which coincided with things Pickett himself had ob-
served, and that at shift breaks all Frazier wanted to dis-
cuss was the union campaign. Pickett considered this a
dangerous distraction because at shift break time it was
normal for departing personnel to pass on to oncoming
personnel information needed for the job, such as what
jobs were left over to be completed and what jobs an on-
coming electrician could expect to perform. Because
electricians worked with electrical voltage, distraction
from the job could involve some danger. Pickett felt that
Frazier was being distracted from his job in the above
respects by his total involvement in the union campaign.
Although he had observed no differences in the quality
of Frazier's own work, he expressed to Frazier his con-
cern and the concern of fellow electricians about this
commitment to the union campaign and his being dis-
tracted by the campaign. According to Pickett, whom I
credit, Frazier on hearing this became emotional, accus-
ing Pickett of asking him how he was going to vote.
Pickett denied doing so. Frazier declared nobody knew
how he was going to vote. Pickett then pointed out to
him that he obviously had displayed his support for the
Union. At the end of their conversation Pickett told Fra-
zier that, if he could help him in any way, Frazier could
call on him. I find that in making this remark Pickett was
referring to help on the job. I base this on Pickett's
credible testimony and his explanation that the two men
had worked together for years with the mutual under-
standing between them that Pickett's help on job-related
problems was available any time Frazier called on him.
Frazier contradicts Pickett in many respects. He testi-
fied that Pickett stated, "I see some of the boys have got
you to wear a T-shirt and I don't know why unless it is
to keep them from harassing you." Pickett denied
making this statement, explaining that he did not believe
that was why Frazier wore a union T-shirt. I credit
Pickett's denial. Frazier also testified that Pickett in-
formed him, "Some of the boys want to know how
you're going to vote." According to Frazier he then de-
clared, "It's none of your business or none of any of the
boys' business." And that Pickett then said, "Well, you
know, man to man." Although Pickett did not specifical-
ly deny making this statement with respect to some of
the boys, he testified credibly that in the course of the
conversation Frazier became emotional and declared that
Pickett was asking him how he was going to vote which
Pickett denied. Further, Pickett denied making a state-
ment with respect to a man-to-man communication.
As between the two, Pickett was the more credible
witness. In discussing his pretrial affidavit it became ob-
vious that Frazier was not certain as to the sequence of
the various statements he reported. Pickett seemed more
certain. As noted above, Pickett credibly denied he
asked Frazier how he was going to vote. This seems
consistent with the objective facts of Frazier's visible and
ardent support of the Union from which Pickett and Fra-
zier's fellow employees undoubtedly would have inferred
that he would vote for the Union. There being little
doubt as to where Frazier stood respecting the Union,
there would be little reason for Pickett to ask how he
would vote. Finally, Pickett had a valid job-related con-
cern respecting Frazier's being distracted from his duties
at the time of shift breaks. That appears to have been
Pickett's motivation in initiating the conversation, a moti-
vation consistent with his denial that he asked Frazier
how he was going to vote. Further, although Pickett's
actions were partly based upon what he had heard from
other electricians, that information was job related and
did not deal with harassing tactics by other union sup-
porters. Also, Pickett credibly testified. having long
worked with Frazier, that he did not evaluate the man as
one who would visibly support the Union because other
union supporters were harassing him. Finally, both Fra-
zier and Pickett agree that the last thing Pickett said was
to the effect that if Frazier had any problems to let Pick-
ett know. The inference from Frazier's testimony is that
this related to problems with other employees respecting
how Frazier was going to vote in the Board election.
Pickett's more credible testimony relates the comment to
a longstanding understanding whereby the supervisor
was available to assist Frazier on job-related problems.
For these reasons I credit Pickett over Frazier.
As found above, Pickett, the supervisor, initiated the
conversation by inquiring how Frazier, the employee at
work, thought the union campaign election was going. In
the context in which the question was put, and irrespec-
tive of Pickett's motivation, it was inherently coercive
and an interference with Frazier's Section 7 rights. Pick-
ett spoke with the mantle of employer authority and his
question, if answered, logically required Frazier to de-
clare his thoughts about the Union's prospects and to
provide the employer with an evaluation which the em-
ployee might or might not desire to supply. The inquiry
may have been introductory, but that is beside the point.
It nevertheless constituted objectionable managerial
probing on a topic which was not job related and about
171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which management had no business inquiring. I find that
in making this inquiry Pickett violated Section 8(a)(1) of
the Act. Blue Cross-Blue Shield of Alabama, supra. The
evidence does not establish that Pickett otherwise violat-
ed the Act.
17. Wright's threats of futility to Sharp
As already noted, Joel Sharp, a longtime DuPont em-
ployee, worked as a spinning operator in the T-33 area.
He considered himself and James Merriman (one of the
alleged discriminatees herein) the two most active union
proponents in that area. About a week before the Board
election he and Merriman got into a conversation about
the Union with their supervisor, James Wright. Sharp re-
called that Wright stated the following:
He said he didn't see that the Company would give
any more than they were giving regardless of
whether we went union or not. We had a job to do
and had to work together and joining the Union
they wouldn't go any more money, or it wouldn't
change things.
This being the only evidence respecting this incident,
and it being credible, I find that Wright made the state-
ment. He thereby plainly conveyed to the two employ-
ees the idea that employees in the plant would gain noth-
ing by voting for the Union, or by union representation
thereafter should they select the Union as their repre-
sentative because the Company would not give any more
than before. For a management representative to so sug-
gest the futility of employees freely exercising their stat-
utory rights violated Section 8(a)(1) of the Act. Cham-
pagne Color, Inc., supra; Montgomery Ward & Co., supra.
18. Wright's interrogation of Sharp and Merriman
Sunday was the last day on which Sharp and Merri-
man worked prior to the Board election on Wednesday,
April 25, and Thursday, April 26. On Sunday, April 18,
toward the end of the shift, at a time when Sharp and
Merriman were in the vicinity of the "darkroom,"
Wright asked them if they really thought they were
going to win. They answered yes. I find that Wright was
referring to the soon to be held Board election.
Since the question was put by a supervisor in the
workplace during working hours to rank-and-file em-
ployees and, if honestly responded to, called for them to
reveal their thoughts respecting the upcoming election, it
was inherently coercive and interfered with the right of
employees to exercise their guaranteed rights free from
the meddling of management. Accordingly, I find that
on that occasion also Wright's interrogation violated
Section 8(a)(1) of the Act. Blue Cross-Blue Shield of Ala-
bama, supra.
19. Denial of access to the plant prior to the
election
The complaint alleges that during the week of the
Board election the Company promulgated and enforced
a rule denying vacationing employees access to the plant
except for the purpose of voting, and that this rule un-
lawfully restricted employee exercise of protected rights
to solicit for the Union and distribute literature during
the election week.
Merriman and Sharp arranged to take their vacations
during the week of the election. On the Sundsay prior to
the election, the last day before their vacations, they
asked Wright for permission to enter the plant while
they were on vacation. He denied them permission, ad-
mittedly on the ground that it was the week of the elec-
tion. According to Wright he was unaware of any rule
restricting access to the plant of vacationing employees.
In the past, retired employees had been allowed in the
plant for social visits in the cafeteria and elsewhere with
other employees.
It is obvious that denial of permission for Merriman
and Sharp to enter the plant during their vacations was a
departure from this past practice and was imposed for
the purpose of limiting employee union activities prior to
the Board election. I find this was an unwarranted limita-
tion of their Section 7 rights and a violation of Section
8(a)(l) of the Act. Tri-County Medical Center, Inc., 222
NLRB 1089 (1976); GTE Lenkurt., Incorporated, 204
NLRB 921 (1973).
20. O'Quinn's interrogation of, and threat to,
Campbell
At the time of the campaign, James Campbell was a
spinning operator in the T-33 area. A day or two prior
to the election, according to Campbell, he entered the
denier room, which was used for breaks, and found sev-
eral employees including Ray Cordell talking with Su-
pervisor Willa Jean O'Quinn. Campbell joined the con-
versation. They were discussing certain company cam-
paign literature opposing the Union which purportedly
made reference to the Company's negotiating team.
Campbell and O'Quinn began arguing, O'Quinn telling
him that the DuPont negotiating team was very good
and would be hard for the Union to negotiate with, and
that, in order to get anything, the Union would have to
give up something. She also referred to the 9-B textile
area, which at the time was not making money, asking
Campbell whether, if the Union got in and the employ-
ees did not get what they wanted in negotiations, they
would strike. Campbell replied that he supposed they
would. O'Quinn then commented that if the 9-B textile
area were once closed down the Company would never
start it up again, which would mean a loss of jobs for
800 persons. She then asked Campbell where that would
leave him if that occurred. He replied he supposed he
would stay where he was. I base the above finding on
the credible testimony of Campbell who was forthright
and specific.
O'Quinn generally contradicted Campbell. Although
she admitted that a conversation occurred about the time
he indicated, she said only one other person was present,
Sonia Wisseman. Neither Cordell nor Wisseman was
called to testify. I credit Campbell over O'Quinn because
the conversation was a special experience for him and
one which he likely would recall. O'Quinn, on the other
hand, had numerous conversations with employees about
the union campaign, this being part of her assigned
duties. Also, much of her testimony is consistent with,
172
E. 1. DUPONT DE NEMOURS
and in a sense corroborates, Campbell's. She confirmed
that the 9-B textile area had been a continuing business
problem, in that business had fluctuated constantly, and
the operation was not a positive moneymaker. She also
confirmed that during the preelection period manage-
ment issued numerous fact sheets for distribution to all
employees which became subjects of discussion among
employees and with supervisors. In connection with a
management fact sheet designed to demonstrate a loss of
jobs in plants organized by the Union, she had discussed
with employees the general concern about 9-B textile
shutting down in the event of a strike. She was unable to
recall the details of her numerous discussions.
In asking Campbell whether he would strike I find
that O'Quinn unlawfully probed his union sentiments and
intentions respecting his exercise of his Section 7 rights. I
further find ,hat, taken as a whole, her remarks respect-
ing the 9-B textile area was in substance a threat that if
the employees selected the Union and a strike followed,
that area would not thereafter reopen and 800 jobs
would be lost. This was an unlawful threat because it
was a management prediction of what management
would do if employees utilized their statutory rights. In
both respects she violated Section 8(a)(1) of the Act.
Blue Cross-Blue Shield of Alabama, supra.
21. Wiley's threats of futility to Jones
Gary Jones, one of the alleged discriminatees, worked
as a draw bulk operator in the T-13 area. James Wiley
supervised the entire shift. Jones and Wiley agree that a
day before the election they had a conversation in which
Jones asserted that the Teamsters would win the election
and Wiley contended they would not. In some other re-
spects their respective versions of the conversation con-
flict.
According to Jones, Wiley came up to him in the main
aisle of the cordura room and told him that the Team-
sters was going to lose. Jones responded that it was
going to win and that the Company would have to bar-
gain with the Teamsters Union. Wiley then stated that it
would listen but that is all it would have to do. Jones
came back with the comment that it had never bargained
with a union until it bargained with the Teamsters.
Wiley then said that DuPont was not going to let Gary
Jones stand in its way. Jones had the last word saying,
"Anything the Company does to me, I'll be backed up."
Wiley, on the other hand, recalled that Jones ap-
proached him, commenting that the Union was going to
win the election and win big. Wiley testified he only re-
sponded with, "Oh?" Jones repealed that the Teamsters
was coming in. Wiley testified he then responded, "Well,
good luck," and that Jones again repeated, "They are
coming in big." According to Wiley, he wished Jones
good luck if it did come in big, saying he would come
down and congratulate Jones, and he hoped that, if it did
not come in, Jones would be man enough to come to
Wiley and congratulate him. Wiley testified that that was
the extent of their conversation, that they did not discuss
what would happen in negotiations with the Union, nor
did he say that DuPont was not going to let Jones stand
in its way. According to Wiley he at no time discussed
with Jones DuPont's bargaining techniques. However,
on cross-examination he explained that during the cam-
paign he did discuss company bargaining methods with a
number of other employees, whose identity he could not
recall, using as his source of information for these discus-
sions the supervisory bulletin on bargaining and results
of bargaining issued by higher management on April 5
and distributed to supervisors for information and assist-
ance in talking with employees.
I credit Jones and find the facts to be as he reported
them. To the extent that Wiley's testimony conflicts with
Jones, I do not credit him. In testifying both witnesses
were forthright in their demeanor; both reacted well to
the tests of cross-examination. The above credibility res-
olution is influenced by the following circumstances.
Jones was a visible and active union proponent. He had
worn Teamsters T-shirts and buttons long before the
preelection period. In some measure he personified the
Union and was a logical person for Wiley to discuss the
election and possible future bargaining with and be the
recipient of comments such as that the Company would
not let Gary Jones stand in its way. Further, on June 21,
between the time of the conversation in question and the
hearing, Jones made a prior consistent statement in a
sworn pretrial affidavit in which he reported the conver-
sation substantially as given in his testimony at the hear-
ing. Finally, Wiley, as a second line supervisor, had
many persons under him and, accordingly, had numerous
conversations with various employees throughout the
preelection period on the general subject of union repre-
sentation. He necessarily had many more such conversa-
tions with employees than Jones did with supervisors. In
these circumstances Jones more likely had a better recall
of the content of this particular conversation than Wiley.
I find that when Wiley indicated that if the Company
had to bargain with the Teamsters they would listen but
that is all it would have to do, he conveyed to Jones the
idea that it would make no difference in the employees'
situation if the Teamsters represented them in bargaining,
that the Company would only listen and then would do
what it would have done without union representation.
This message is underlined by his closing comment that
the Company would not let Gary Jones stand in its way.
The import of Wiley's comments was that it was futile
for employees to obtain union representation and bar-
gaining. I find the comments interfered with employees'
Section 7 rights and violated Section 8(a)(1) of the Act.
Champagne Color, Inc., supra, Montgomery Ward & Co.,
supra
B. Discrimination
1. Ronald Watkins' discharge
During the events pertinent to this case Ronald Wat-
kins worked on special assignment in the T-33 area
under the general supervision of Bryan Lane and Shift
Supervisor Spencer Senters. In the last 5 days of his em-
ployment his immediate supervisor was Glenn Allen As-
linger. When Aslinger discharged him on May 15, 1979,
less than 3 weeks after the Board election, Watkins had
worked for the Company approximately 11 years.
173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Watkins' union activities
Watkins was an active union supporter. During the
election campaign he attended about six union meetings;
and on five or six occasions he distributed prounion ma-
terial at the plant gate, including handbills, bumper stick-
ers, decals, buttons, and T-shirts. He habitually wore nu-
merous union insignia in and out of the plant, including a
union hat, union T-shirts, and a union button on his doff
bag. He obtained between 25 and 30 employee signatures
on union authorization cards and received and delivered
to the Union between 100 and 150 signed authorization
cards of other employees. One of his fellow workers de-
scribed him as the most active union supporter in his de-
partment.
b. Company knowledge of and animosity respecting,
union activities of Watkins
It is beyond question that management knew of Wat-
kins' union activities. As early as late February Lane ob-
served him obtaining the signature of Michael Byrd on a
union authorization card and objected thereto. And, after
further discussion of the matter with Watkins and
Senters, Lane closed the discussion by informing Wat-
kins the incident would be documented in his file. In
early April Relief Supervisor Ben Miller, pointing to
Watkins' union T-shirt, commented, "I thought you had
better sense than that." Again in April, 2 or 3 weeks
before the Board election, Supervisor Rowe asked him
what he was doing with a union T-shirt on. And around
the same time Senters in substance informed him that, if
he had not been wearing his various union insignia, the
Company would have considered him for a supervisory
position.
c. Concerted activities of Watkins
Watkins was also known to company officials for his
concerted activities on behalf of other employees. Thus,
on Wednesday, May 9, only 2 days before the incident
which resulted in his discharge, Watkins, Billy Joe Reed,
the number one man of the doff crew for that shift,
Guerry Porter, and his wife were in the rap shack when
Aslinger came in wanting to know why the doff crew
had left one machine down. Watkins replied that it was
because they had no yarn. Aslinger then called Reed
outside the shack, telling him he had an attitude problem.
From there the two went to the office. Watkins and the
others became concerned about the treatment of Reed,
and Watkins, acting as spokesman, telephoned Senters to
protest. He told Senters what had happened and also
stated that they were going to come up to the office to
talk with him because throughout the week Aslinger had
been acting like he was mad at the whole world. Senters
said not to worry about it, that he would take care of it.
Twenty to 25 minutes later, not having heard from
Senters, Watkins again telephoned him, saying they were
coming upstairs to talk with him. According to Senters,
he by then had seen neither Reed nor Aslinger. Watkins
then went to the office and talked with Senters who ap-
parently satisfied him because he returned to work.
From the above it is clear that, prior to Watkins' dis-
charge, management knew of his union activities as well
as his concerted activities on behalf of fellow workers.
Aslinger in particular might have had reason to resent
his activism because some of it involved complaints
about him. However, it is not established in the record
that he ever learned that Watkins complained about him,
and the suspicious circumstances do not warrant an infer-
ence that he learned. See United Broadcasting Company
of New Hampshire, Inc. d/b/a WMUR-TV, 253 NLRB
697 (1980).
While mere knowledge by an employer of an employ-
ee's union and concerted activities is not sufficient to es-
tablish unlawful motive in a discharge, as found earlier
herein, Respondent is responsible for numerous other
unfair labor practices, all independent violations of Sec-
tion 8(a)(1). Certain of these incidents particularly in-
volve Watkins and tend to show supervisory animus
toward his prounion activities. Thus, Lane took him to
task for obtaining a signature to a union authorization
card and indicated the incident would be documented in
his personnel file, and on the same occasion Senters in-
terpreted a no-solicitation rule in overly broad terms. On
another occasion Senters indicated his wearing of union
insignia had cost him a chance for promotion. And, al-
though not specifically directed to Watkins, the fact that
Lane indicated to Billingsley that he would not be con-
sidered for promotion if he continued to wear union in-
signia and the statement of Wright to Sharp that he
could get into trouble for passing out union buttons, both
demonstrate a management disposition to take adverse
personnel action respecting employees engaged in union
activities. Because of these incidents and also because of
the other numerous independent violations of Section
8(a)(1) engaged in by Respondent, I find that company
supervisors, including Senters, harbored animus toward
Watkins because of his union and concerted activities.
Smedberg Machine & Tool, Inc., 249 NLRB 534, 540
(1980).
d. The circumstances surrounding Watkins' discharge
When Watkins reported for duty on the day shift on
Tuesday, May 15, he was discharged. Respondent con-
tends that he was discharged for failing to satisfactorily
perform his job, for falsifying records, and for misrepre-
senting what occurred on Friday, May 11. In its brief
Respondent specifically relies on the first two of these
grounds. Although not mentioned in Respondent's brief,
reliance on the third is implicit in the position argued.
On Tuesday, May 8, following a 5-day vacation, Wat-
kins returned to work on the midnight to 8 a.m. shift in
the T-13 area. He was put on special assignment which
involved performance of any tasks given him by supervi-
sion, and in particular the gathering of yarn samples for
laboratory testing, the checking of hotplates on the
draw-twist machines to determine whether they were op-
erating within acceptable temperature limits, and reliev-
ing the patroller in the area. He then worked under the
immediate supervision of Relief Supervisor Aslinger.
On May 8 Watkins, noting that the forms for record-
ing hotplate temperatures had not been initiated by the
prior shift, asked Aslinger if hotplate temperatures were
still being checked. Aslinger replied they were. Watkins
174
E. 1. DUPONT DE NEMOURS
said he did not intend to check hotplates since the prior
shift had not filled out their part of the form. Aslinger
directed him to perform his part of the paperwork
anyhow and to check the hotplates. Watkins did so on
May 8. I base these findings on the credited testimony of
Aslinger which is supported by his written investigative
report of the occasion. To the extent that Watkins' testi-
mony is in conflict, I do not credit him. From other evi-
dence in the record, I find that completion of the paper-
work on hotplate temperatures was not a matter of over-
riding importance in the minds of either supervisors or
employees charged with performing those duties.
The next day, Wednesday, May 9, Watkins followed
his normal routine which included checking hotplates.
His shift was uneventful except for the incident already
noted involving Aslinger's treatment of Billy Joe Reed
which prompted Watkins to complain to Senters about
Aslinger. Thursday, May 10, was also uneventful, Wat-
kins following his normal routine including the checking
of hotplates. Aslinger concluded that Watkins checked
the temperatures on May 8, 9, and 10 because he filled
out the report forms for those days, but Aslinger did not
actually see him check hotplates.
On May 11, Watkins again followed his normal routine
to the extent of gathering laboratory samples, relieving
the patroller, and going to lunch. I find he did not check
hotplates although he filled out the reports as if he had.
Checking hotplate temperatures necessitates use of a
pyrometer, an electrical instrument which, when not in
use, is kept in a room adjacent to the shift office. At or
about 5:20 a.m. on May 11 Watkins picked up the pyro-
meter from this room.R He returned to his work area
with the pyrometer and entered the rap shack, remaining
for about a minute to speak with Reed. He testified he
then went out among the machines and began checking
hotplates with the pyrometer, returning to the rap shack
at or about 6 a.m. and remaining there until about 7:30
a.m. while transferring his information on temperatures
from a card to the regular hotplate temperature patrol
sheets. I do not credit Watkins' testimony to the effect
that he was out among the machines checking hotplate
temperatures from shortly after 5:15 until on or about 6
a.m. or his testimony that he actually checked the hot-
plates on May 1. He did not specify any occasion other
than 5:15 when he said he obtained the pyrometer, nor
did he specify any other period in the shift when he
checked temperatures.
Aslinger saw his reports on hotplate temperatures on
Tuesday, Wednesday, and Thursday and did not question
the accuracy of those reports. But as of the end of the
shift on Thursday he still had not actually seen him
checking hotplates. Early in the shift which began at
midnight on Friday, he reported to Senters that he had
not seen Watkins checking hotplates and had some ques-
tion whether he really made the checks. With Senters'
cooperation they established surveillance of the pyro-
* Watkins estimated that it was approximately 5:10 to 5:15 a.m. when
he obtained the pyrometer. Cecil Kendall, a supervisor who was in the
shift office watching for Watkins when he picked up the pyrometer,
noted the time as 5:20 a.m. I do not credit the testimony of Watkins that
Senters, Roberts, and Aslinger were all in the office when he got the
pyrometer.
meter which was being electrically charged in the room
adjacent to the shift office. Throughout most of the shift
none of the supervisors in the office, which included
Senters and at times Kendall, Norman Roberts, and As-
linger, observed anyone take the pyrometer.
At 5:20 a.m. Kendall saw Watkins pick up the pyro-
meter. He informed Aslinger of this and had Roberts de-
liver a note to Senters to the same effect. At 5:30 As-
linger saw Watkins enter the rap shack with the pyro-
meter. Aslinger continued to maintain uninterrupted sur-
veillance of the rap shack until about 7:30 a.m. From
5:20 to 6:30 a.m. Roberts joined Aslinger in watching the
rap shack, and from 5:45 to about 6:15 or 6:20 Senters
also joined in the surveillance. During the period from
5:30 to 7:30 a.m. Watkins remained in the rap shack
except for two short excursions outside. On the first of
these he got up, walked outside the rap shack, stretched,
turned around, and went back into the shack. The
second excursion was at 7:11 a.m. when he emerged
from the shack, went to the supervisor's desk, picked up
a supply of hotplate temperature report forms and re-
turned to the rap shack. I base these findings on the
credited testimony of Aslinger, Kendall, Roberts, and
Senters.
At or about 7:30 he came out to the supervisor's desk
with completed hotplate temperature reports. Aslinger
confronted him, asking if he checked the hotplates. Wat-
kins responded that he had and asked why. Aslinger then
told him, "It is against company policy to falsify a
record" and indicated he wanted to see Watkins in the
shift office. In the office Aslinger informed him that su-
pervisors had been auditing him all night. According to
Watkins, he also accused him of entering the rap shack
when he returned from lunch and not emerging until
7:30, which Watkins denied. Regarding the assertion that
he had falsified the records, Watkins asserted that the
record entries were correct and that a check of the hot-
plates would verify their accuracy.9 Aslinger informed
him there was not sufficient time for him to have
checked the hotplates. Watkins explained that he may
work a little faster than others and that he might have
done the task in 20 to 30 minutes although he did not
have a watch on at the time. Considering the large
number of hotplates to be checked, I find there was not
enough time between the time Watkins picked up the
pyrometer and the time Aslinger saw him enter the rap
shack for even a very fast worker to carry out the tem-
perature checks. As the shift was nearing its end and
Watkins was ready to leave for home, Aslinger told him
that supervision would let him know the outcome of
their investigation on the following Tuesday when he
was to come in for the day shift.
In disciplinary matters the personnel procedure gener-
ally used in the plant is to administer progressive disci-
pline. This was not used with Watkins. However, in case
of a serious act of misconduct, company procedures
allow for discharge without going through the progres-
sive procedure. When the progressive procedure is used
the immediate supervisor talks personally with the em-
' Subsequent investigation established that the temperatures entered on
the reports were substantially correct,
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee in an effort to correct the fault. Sometimes addi-
tional verbal instructions or admonitions are given in a
further effort to influence the employee to self- help. The
second step in the progressive procedure is one or more
written "contacts" or reprimands to the employee, which
are also placed in his personnel file. The third step is to
classify the employee as unsatisfactory. The fourth step
is probation and the fifth and final step is discharge.
In all discharges the supervisors involved present a
recommendation to "the Staff," consisting of supervisors
and including the plant manager, the assistant plant man-
ager, a planning control superintendent, an engineering
superintendent, and the personnel superintendent. The
staff decides whether to discharge or not. I infer this
staff so acted in the case of Watkins.
On Tuesday, May 15, when Watkins reported for the
day shift, he was sent immediately to the shift office
where Aslinger handed him his final checks. He told
Watkins that the Company had decided to terminate his
services.
Watkins appealed his discharge to the plant manager
pursuant to which a meeting was arranged with Assistant
Plant Manager Kenneth Steuber on May 24. Steuber in-
formed him management had taken a timestudy survey
which indicated that he did not have sufficient time to
check his hotplate temperatures during the time he said
he did. Although Watkins explained that he had only es-
timated the time at 20 to 30 minutes and that he had not
claimed this was exact, Steuber stated he was standing
behind the termination decision. Watkins then asked
why, if it were such a priority matter, the paperwork on
hotplates had not been filled out for 5 days prior to his
coming on duty May 8. Steuber replied that the employ-
ee responsible actually had the information written on a
card but had not transferred it to the hotplate tempera-
ture patrol sheets. He reaffirmed he was standing behind
Watkins' termination.
Although the basis for management's position on the
discharge was that there was not sufficient time for Wat-
kins to do what he said he did, the General Counsel of-
fered evidence as part of the case-in-chief that on Wat-
kins' last night at work there were only eight machines
which needed checking. Watkins estimated that, depend-
ing on conditions, he needed anywhere from 3 to 6 min-
utes to check all hotplates on a machine and that normal-
ly it took him 3 to 4 minutes. Guerry Porter, who re-
placed Watkins after his discharge, at first required a
little over 5 minutes to do one machine but after some
experience he performed the same work in 4 minutes or
a little less. Based on this evidence I find that Watkins
was able to check the hotplates on the eight machines in
a minimum of 24 minutes and a maximum of 48 minutes.
e. Respondent's motive in discharging Watkins
(1) The prima facie case
Even though the temperature information which Wat-
kins entered on the hotplate temperature reports was not
inaccurate, a preponderance of the evidence shows that
he did not actually check temperatures on May 11. I find
he simply entered the temperatures previously recorded.
This did not inure to his benefit, other than to give him
more free time in the rap shack, nor did it affect plant
production. Nevertheless, Aslinger correctly concluded
that he did not perform this part of his job on May II,
although he said he did, and that the temperature reports
were false in that they were not based on actual checks
made by Watkins on May 11.
In ordinary circumstances such neglect of duty and
misinformation is adequate ground for discharge. Here,
however, because of the evidence of company union
animus, the timing of the discharge in relation to its vig-
orous antiunion campaign, and its numerous unfair labor
practices, and in particular the timing of the surveillance
immediately after Watkins' concerted activities on behalf
of Reed which suggests "a predetermined plan to dis-
charge" Watkins, a prima facie case of discrimination is
made out. Wright Line, a Division of Wright Line, Inc.,
251 NLRB 1083 (1980). Aslinger's program of surveil-
lance, set up on Friday after he had unquestioningly ac-
cepted Watkins' temperature reports on Tuesday, and
again Wednesday and Thursday, tends to show that Wat-
kins' concerted activities on Wednesday, in which he
complained to Senters about Aslinger, prompted the sur-
veillance. Watkins' misconduct may well have gone un-
detected if the supervisors had not purposefully set out
to learn if he really was making his temperature checks.
It can also be argued that the successive discharge of
three union supporters, Watkins on May 15, Merriman
on May 16, and Jones on June 18, warrants an inference
of unlawful motive in the discharge of each. Because of
the circumstances I do not draw such an inference.
There is an absence here of evidence specifically con-
necting these three employees to one another. The total
complement of plant employees is large, almost 3,000. In
the Board election, 2,828 employees in the bargaining
unit were eligible to vote. Of these 2,756 cast valid bal-
lots, 1,196 for the Union. With these large numbers, and
absent other evidence connecting them, the relation of
one discriminatee's case to the others is not apparent
from this record.
(2) The issue of disparate treatment
The General Counsel contends that Respondent has
not been evenhanded in discharging Watkins because 5
months later, in dealing with employee Michael Ramsey
for falsifying production records, it discharged him and
then reinstated him. That incident, however, does not es-
tablish disparate treatment of Watkins. Ramsey was dis-
charged for failing to make a predoff and post doff in-
spection on his draw-twist machine and then signing the
record that it had been made along with other checks
listed on the record card. When he appealed further in-
vestigation revealed that as many as 5 percent of that
type of record were similarly incomplete yet no other
employee had been disciplined for signing off on the
cards. Ramsey was reinstated because management ulti-
mately concluded that he had not intended to falsify the
records.
Evidence in the present matter establishes that, during
the calendar years 1974 through 1979, only 76 employees
were discharged out of a total complement at times as
large as 3,500 employees. Of these 76 discharges, 5 (in-
176
E. I. DUPONT DE NEMOURS
cluding Ramsey) were reinstated. Of the remaining 71
discharges, 6 (including Watkins) were for falsifying one
or another type of record. Thus, on April 25, 1974,
Vernon Hewlett was discharged for signing out of the
plant under an assumed name; on March 27, 1975, James
Johnson was discharged for falsifying his disability
records; on January 13, 1976, Larry Grider was dis-
charged for the same reason; on July 18, 1977, Ronald
Norris was discharged for falsifying records, failing to
change travelers, and recording that they were changed;
on May 15, 1979, Watkins was discharged, according to
Respondent's records, for "failure to perform all func-
tions of job assignment, falsification of records, misrepre-
sentation of facts"; and on August 17, 1979, Ronnie
Dishroom was discharged because he "failed to satisfac-
torily perform his job and falsified denier records." The
evidence does not reveal, except for the case of Ramsey,
whether during this 5-year period discipline short of dis-
charge was imposed for falsifying records. The evidence
does establish beyond doubt that falsifying records was a
dischargeable offense. The other discharges on this
ground demonstrate that, even if Watkins' faults had
been discovered in the absence of his protected activities,
he nevertheless would have been discharged. In this re-
spect the present matter differs from Wright Line, Inc.,
supra, where the Board found significant evidence of dis-
parate treatment of the discharged employee. By contrast
Respondent here has demonstrated that it would have
taken the same action against Watkins even in the ab-
sence of his union and concerted activities. Gerald M.
Martin and Kathleen R. Martin, a Partnership Doing Busi-
ness Under the Trade Name and Style of Liberty Pavilion
Nursing Home, 254 NLRB 1299 (1981); see also Stewart
Granite Enterprises, 255 NLRB 768 (1981). Watkins' case
also differs from Wright Line in other respects. Thus, in
Wright Line, surveillance of the employee involved origi-
nated with higher management officials who had no
reason to check up on the employee, a circumstance sug-
gesting a predetermined plan to get rid of the employee.
By contrast, surveillance of Watkins originated with the
lowest level of management, his immediate supervisor
who arguably had reason to check up on him because
over several days he on no occasion had observed Wat-
kins actually performing the temperature checks which
he reported. In Wright Line the final paycheck was pre-
pared prior to confronting the employee with the alleged
discrepancy. Watkins, on the other hand, was given an
opportunity to explain before the decision to discharge
him was made. Another difference is that in Wright Line
the work reported as performed was in fact performed,
the only discrepancy being, as the employee explained,
that it was not performed at the particular time shown
on the report, a relatively minor discrepancy. With Wat-
kins, however, the work, as shown by a preponderance
of the evidence, in fact was not performed. In Wright
Line the sole ground for discharge was falsifying the
production record. By contrast, Watkins was discharged
on three grounds, not performing the work, falsifying the
production records, and then verbally giving false infor-
mation when confronted by his supervisor.
In these circumstances, even if Watkins' protected ac-
tivities prompted his supervisors to scrutinize his tem-
perature checks and reports, the results of which scruti-
ny led to his discharge, the inference is not warranted
that he would have been discharged if something less
than a dischargeable offense had been uncovered. See
Pork King Company, 252 NLRB 99 (1980). Considering
the whole record, I do not find that Watkins' "protected
activities are causally related to the employer action
which is the basis of the complaint." See Wright Line,
Inc.. supra, fn. 14. Accordingly, I find that a preponder-
ance of the evidence fails to establish that Respondent
discharged Watkins for unlawful reasons in violation of
Section 8(a)(3) and (1) of the Act.
2. James Merriman's discharge
On May 17, about 3 weeks following the Board elec-
tion, James Merriman was discharged after having
worked for Respondent almost 15 years. At the time of
discharge he was a spinning machine operator in the T-
33 spinning area.
a. .Merriman's union activities
Merriman was one of the most active union propo-
nents in the plant. It is beyond dispute that company offi-
cials knew of his union activities and interests. He was
among the handful of employees who initially went to
the union hall to request that the Union organize at the
plant. In the campaign which followed, his prounion ac-
tivities included attendance at between 20 and 30 union
meetings, handbilling at the plant entrance on about 20
occasions, and the wearing of various union insignia in
the plant including the dillies, union buttons, union T-
shirts, a variety of union hats, a union jacket, and a spe-
cial custom made denim jacket bearing an American flag
and a union insignia. He also exhibited the union dillies
and union bumper stickers as well as "Vote Teamster"
sideboards on his pickup truck. He distributed union tags
among fellow employees at the plant, handed out union
cards to employees in the plant, and openly solicited
them to join the Union. He was one of three campaign
coordinators responsible for the organizational efforts
among between 500 and 600 employees on his shift.
During the campaign he organized an employee boycott
of the information and discussion (I&D) meetings in his
department which was 95 percent successful. In connec-
tion with the representation hearings scheduled in ad-
vance of the Board election, which was attended by
company officials, he provided transportation for union
witnesses, and he personally served a Board subpoena on
a company official at the plant on the day scheduled for
the hearing. As already noted, a few days prior to the
election he and Sharp asked permission of his supervisor,
James Wright, to enter the plant during their vacation
time prior to the election for the declared purposes of
campaigning among fellow employees during lunch peri-
ods.
b. Merriman's assignment of May 16
The spinning operation in which Merriman worked in-
volves complex machinery to convert liquid polymer
into nylon thread. The controls for these machines are
on the third floor of the plant. Below on the second
177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
floor packs of liquid polymer supply this material to the
machines which transmit it in thin streams through verti-
cal funnels to spinning machines on the first floor.
The spinning machines are arranged in lines, two ma-
chines to a line, each machine with 32 spinning positions.
One-fourth of these, or eight positions, known as a quad-
rant, are assigned to each spinning operator. Line 4 on
the first floor consisted of spinning machines 301 and
311. Merriman's assignment was to operate the fourth
quadrant on the high side of spinning machine 311 which
included spinning positions 25 through 32. Among spin-
ning operators the fourth quadrant of spinning machine
311 had the reputation of being difficult to operate and
of having frequent and numerous breaks in the fiber
being spun.
c. Transfer line changes
From time to time after extended periods of use, the
funnels or lines which transfer the polymer filament from
the second floor to the first floor require cleaning. To
accomplish this it is necessary to make a changeover in
transfer lines on the second floor. For this changeover
the spinning machines on the first floor are shut down
for several hours. Such a transfer line change for line 4
spinning machines (machines 301 and 311) was scheduled
for 8:30 a.m. on May 16. The spinning operators on
those machines, including Merriman, were so informed
by their supervisor shortly after 8 a.m. that day.
d. Breaks in thefiber
Breaks in the fibers going to the various spinning posi-
tions on a spinning machine are a frequent occurrence.
Such breaks are of two types, quality breaks and string-
in breaks during doffing, both of which interrupt the
spinning at the position involved. When such breaks
occur, it is the responsibility of the spinning operator to
"string the positions back up" thereby reactivating the
spinning process at those positions.
Merriman testified that between 8 and 8:30 a.m. on
May 16, two positions in his quadrant ceased operating
due to quality breaks, and that between 8:30 and 9 a.m.
three string-in breaks occurred. When the first two
breaks occurred and again when the three occurred, he
contacted someone on the second floor (he did not say
who) to inquire whether he should string the positions
back up in view of the scheduled changeover and was
informed that he should not. Shortly after 9 a.m. the
three remaining positions quit spinning yarn so that his
entire quadrant was not operating.
Wright corroborates Merriman to the extent that pro-
duction records show he experienced five positional
breaks that day, three of them quality breaks and two
string-in breaks. The patroller, Herman Vincent, cor-
roborates Merriman to the extent that between 8:30 and
8:40 a.m. three or four of Merriman's positions were
down, that Merriman was pulling "wraps" off position
27 which was down and, while he was doing this, posi-
tion 32 went down by itself. Fellow employee Gwin
Millwood, who was working the third quadrant of ma-
chine 311 next to Merriman, also corroborates him to the
extent that he observed him cleaning up his down posi-
tions and calling the second floor to ask what to do with
them and also that about 10 minutes before 9, while Mer-
riman was working at his position 32, position 26 went
down by itself. Because of the scheduled transfer line
change, none of the operators on line 4 who had posi-
tions down bothered to restring them. Other than Merri-
man, none were disciplined.
The transfer line change scheduled for 8:30 was de-
layed until after 9 a.m. Although some of the spinners
were informed of the delay, Merriman was not. He testi-
fied, and I find, that around 9 o'clock only three of his
positions were running. In normal operations each strand
runs on a separate bobbin. However, cordage bobbins are
utilized when the operator doffs the regular positions or
in anticipation of a maintenance shutdown such as the
transfer line change scheduled for that morning. In using
cordage bobbins, more than one strand may be combined
on a single bobbin and that is what Merriman had done
with the strands from the three remaining running posi-
tions on May 16. He testified that shortly after 9 a.m.
these three positions quit spinning yarn. At that point the
transfer line change had not yet occurred, although Mer-
riman was unaware of this.
e. Waste on the second floor
Meanwhile, on the second floor Supervisor Donald
Britt, who is Wright's immediate superior, noticed waste
material accumulating on the floor and concluded that
the fourth quadrant of spinning machine 311 was not op-
erating. He telephoned Supervisor Wright on the first
floor to inquire what had happened. Wright went to
Merriman's station and asked him what happened. Merri-
man replied that the second floor had shut it down.
Wright reported this at or about 9:10 a.m. to Britt, who
denied that was the case. Two or 3 minutes later the
transfer line switch began. Wright and Britt considered
whether the positions in the fourth quadrant should be
strung back up, but decided, since the line change had
already started and only about 20 minutes were involved
before the changeover reached the fourth quadrant, that
they should not string up the positions. They thus had an
opportunity, which they rejected, of reducing or mitigat-
ing any loss of production in the fourth quadrant for
which a short while later they accused Merriman of
being responsible.
After talking with Britt, Wright returned to the first
floor and asked Merriman again why his positions were
broken back and Merriman again replied that the second
floor broke them back. Wright told him they were inves-
tigating it and would get back with him later.
Wright checked the break records which showed five
breaks between 8 and 9 a.m. Whether these were quality
breaks or string-in breaks appears to me to be inmaterial.
f. The accusation
About I p.m. Wright took Merriman off his job and
took him to the section office where Wright, Britt, and
Bryant talked with him. They accused him of deliberate-
ly breaking his positions back, sabotaging the machine.
Wright said it was a serious offense and that his job was
in jeopardy. Merriman denied doing so, saying that he
178
E. 1. DUPONT DE NEMOURS
knew better than to do something like that because he
was a union supporter and they were being watched and
had to be really careful. He said, "This is a railroad job"
and asked for a thorough investigation. Wright replied
he was not concerned about who did or did not support
the Union, that all he was concerned about was the inci-
dent on Merriman's quadrant and the lost production. At
approximately 1:30 Wright escorted Merriman to the
plant gate. According to Wright he sent him home for
deliberately breaking or sabotaging his machine, that is,
his eight positions should have been running normal pro-
duction since there had been a delay and the transfer line
switch had not yet begun. From this testimony of
Wright it is apparent that management held Merriman
responsible not only for the last three down positions
which had, according to him, gone down just before
Wright first asked him what had happened, but also for
the other five positions which had earlier experienced
breaks as noted on the break record. Bryant had report-
ed to his fellow supervisors that many of Merriman's po-
sitions were running cordage, the inference being that
this procedure is not acceptable. However, the unrefuted
evidence of several operators on other quadrants indi-
cates that it is normal and acceptable to run cordage in
anticipation of a scheduled transfer change shutdown.
On May 16 other operators were running cordage also,
and no supervisor directed Merriman not to, or to cease
to, run cordage or to restring down positions.
After being sent home Merriman immediately contact-
ed the Regional Office of the Board to request that
forms be sent him so he could file unfair labor practice
charges against the Company. The forms were sent and
thereafter the Union on his behalf filed the charges
herein.
g. Separation procedures-the Weingarten question
The next day, May 17, Wright telephoned Merriman
at home and asked him to come to the plant. In this con-
versation Merriman for the first time asked that witnesses
be present at any meeting with management. Wright,
however, refused, saying their meeting would be private
with no witnesses permitted. Obviously Merriman had
reason at that point to anticipate that any meeting might
involve discipline for him. That afternoon at Wright's re-
quest Merriman met with him at an office near the plant
gate. He again asked that a witness be present, which re-
quest Wright again denied. Wright read a statement in-
forming him that he was discharged for deliberately
breaking back his quadrant to the second floor and run-
ning waste. Wright asked him if he had any further in-
formation to add and, according to Wright, Merriman re-
peated what he had previously said, that it appeared he
broke some positions back but that in fact he did not. It
is thus apparent that the investigation remained open and
Wright was seeking whatever information Merriman
could provide. Wright informed him he could appeal the
discharge to the plant manager and that he would then
be entitled to witnesses if he chose to appeal.
Following their conversation Wright escorted Merri-
man to the personnel office to talk with the industrial re-
lations counsel. Merriman, however, told him he would
rather not see the industrial relations counsel until he had
an opportunity to get his own legal advice. In spite of
this request, Wright escorted him to Personnel Supervi-
sor Chick Thomas who asked him what happened, there-
by continuing the investigation. In response Merriman
described the events of May 16. He also informed
Thomas he thought he was bcing discriminated against
because of his union activities. Although Merriman
during the campaign had handed union handbills to
Thomas as he entered the plant, Thomas said this was
the first he had heard of Merriman's union activities, a
seemingly disingenuous remark for a personnel official.
During their interview Thomas took notes on what Mer-
riman said, recording in detail the information given
about the events of May 16. Thomas discussed his rights
respecting pension, life insurance, and the dental and
medical plans. In answer to Thomas' question as to what
led up to the discharge, Merriman described the shut-
down which Thomas recorded in the following lan-
guage:
He said a shutdown to change packs had been
scheduled and he had switched his positions (8) to
plied yarn. Sometime between 8:00 and 9:00 a.m.,
two positions broke and when he asked second
floor if they would throw down, they said, no.
About 9:00 a.m. another position broke and when
he asked second floor for throw down, they said,
no. Five positions were still on plied yarn and when
two of them broke they were not thrown down.
Subsequently, the other three positions were taken
down and not thrown down. When he asked a
second floor operator what had happened to cause
the yarn to run out, the reply was "I don't know."
Bill Vinyard on second floor said someone might
have thrown it in the basket.
He said it appeared he had deliberately shut down
the positions but he said he did not do it and he is
innocent.
After leaving Thomas' office, Merriman met Wright at
the plant gate and left.
It is undisputed that, on May 17 after Merriman was
informed he was being discharged, he requested that a
witness be present with him at any meeting with man-
agement concerning his employment situation. The re-
quest was denied and nevertheless Wright and Thomas
both conducted investigatory meetings with him which
resulted in his final termination, an event which Merri-
man could reasonably expect. Even though no union was
in the picture representing Merriman at these interviews,
under Section 7 of the Act he was entitled to the pres-
ence of an employee representative of his own choosing.
Anchortank, Inc., 239 NLRB 430 (1978), enfd. in perti-
nent part 618 F.2d 1153 (5th Cir. 1980); Good Samaritan
Nursing Home, 250 NLRB 207 (1980); Illinois Bell Tele-
phone Company, 251 NLRB 932 (1980). An important
factor in the present situation is the effort of both Wright
and Thomas to obtain additional facts from the mouth of
Merriman. Good Samaritan Nursing Home, supra; Baton
170
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rouge Water Works Company, 246 NLRB 995 (1979).
For the above reasons, I find that in denying Merriman a
witness or representative Respondent violated Section
8(aXl) of the Act. N.L.R.B. v. J. Weingarten, Inc., 420
U.S. 251 (1975).
h. Unemployment compensation proceedings
On May 18, the day after his discharge, Merriman ap-
plied to the Tennessee Department of Employment Secu-
rity for unemployment compensation. Respondent op-
posed his claim and on May 25 a hearing was held by
the state agency which resulted in a decision allowing
Merriman's claim on the ground that cause for his dis-
charge had not been established. Respondent appealed
and a second hearing was held on June 21 before an ap-
peals referee. On June 25 the Appeals Tribunal of the
Tennessee Department of Employment Security issued
its decision denying Respondent's appeal and "in all mat-
ters" affirming the initial determination approving Merri-
man's claim. The Appeals Tribunal's decision includes
findings of fact which, in pertinent part, are as follows:
Employer contends claimant was responsible for the
malfunctioning of equipment between 8 a.m. until 9
a.m. on May 16, 1979. He did not report the prob-
lems to his immediate supervisor. No other prob-
lems, circumstances or situations prior to the inci-
dent were made part of this record. Witness alleged
there was a planned shutdown at 8:30 a.m. and par-
ties at instant hearing did not receive instructions it
had been delayed or aborted. Under the circum-
stances and situations that developed between 8
a.m. until 9 a.m. on May 16, 1979 indicated all
working conditions, breakdowns, etc. were of a rou-
tine nature. Opinions of witnesses were the equip-
ment malfunctions is very common and known to
management, and is due for a general overhaul or
repair process. It would be very expensive for the
Company to shut down for the repairs. They have
been needed for about I year. There are no records
available to show claimant performed wrongdoing
or acted in an irrational manner or functioned any
differently on this day than he had on prior occa-
sions under similar circumstances. Claimant denied
all employer allegations and did not violate a policy
or rule in performing his work functions on May
16, 1979.
Although the Board gives consideration to such deci-
sions of state agencies, they are not binding on the
Board. Aerovox Corporation, 104 NLRB 246 (1953), enfd.
211 F.2d 640 (D.C. Cir. 1954).
i. Respondent's motive in discharging Merriman
(1) The prima facie case
As with the Watkins' discharge, the motive in dis-
charging Merriman is to be tested in accordance with the
formula set out in Wright Line, Inc., supra. For the rea-
sons noted below, I find that the evidence makes out a
prima facie case of discriminatory motive in the dis-
charge. First, there is no indication in the record of unsa-
tisfactory performance in his long tenure as an employee.
There is overwhelming evidence of his extensive union
activities, company knowledge of which is beyond
doubt. As in the case of Watkins, and for the reasons al-
ready stated herein in connection with that discharge,
Respondent's numerous independent violations of Section
8(a)(1) during the preelection campaign warrant an infer-
ence of managerial animosity respecting employees ac-
tively engaging in union activities, which includes Merri-
man.
The circumstances surrounding the discharge, evaluat-
ed in the context of the above findings, lend further sup-
port to the finding of discriminatory motive. Thus, the
testimony of Supervisor Wright shows that management
found fault with Merriman because all eight positions in
his quadrant were out of operation. Five of these posi-
tions were susceptible of being put back into operation
pending the scheduled changeover by being strung up
again, which Merriman had not done. Yet it is normal
practice, pending a scheduled changeover, to not restring
positions. Merriman had done so in the past without get-
ting into trouble and on May 16 other spinning operators
on the line scheduled for changeover were not restring-
ing their down positions and they received no discipline.
Further on this point, when the three supervisors first
concerned themselves with Merriman's quadrant on May
16, they considered having him restring the down posi-
tions but opted not to because the imminent changeover
for his quadrant was expected in 20 minutes. Thus, they
apparently did what Merriman had done in not restring-
ing. Had they directed Merriman to restring those posi-
tions, they would have mitigated his alleged responsibili-
ty for some of the lost production for which they criti-
cized him.
The weight of the evidence shows that the breaks on
the five positions referred to were normal for this type of
operation and there was no basis for singling out Merri-
man and criticizing him about those. The last three posi-
tions ceased operating shortly before the changeover
began. Breakdowns are a common occurrence in the
spinning operation. Merriman testified credibily that his
last three positions went down by themselves. He repeat-
edly denied shutting them down himself and attributed
responsibility for the shutdown to the second floor, a
logical inference in view of the scheduled changeover. It
was his repeated assertion that the second floor had shut
down that convinced his supervisors he was guilty of sa-
batoge. They took the position that if he was wrong
about this (and he was wrong because unknown to him
the changeover had not yet begun) he must have shut
down the position himself. But that quick conclusion ig-
nored the third possibility that the yarn could have
stopped coming down from the second floor because of
fault or obstruction in the equipment which delivered the
yarn to the first floor. There is evidence in the record
that the facilities were long overdue for overhaul. Other
evidence indicates that the scheduled changeover was re-
quired by the normal accumulation of obstructive materi-
al in the transfer lines.
In these circumstances, I find that the General Counsel
has made a prima facie showing sufficient to support the
180
E. I. DUPONT DE NEMOURS
inference, which I make, that Merriman's union activities
were a motivating factor in the decision to send him
home on May 16 and to discharge him on May 17.
Under Wright Line, Inc., supra, this showing shifts to Re-
spondent the burden of demonstrating that it would have
suspended and discharged him even in the absence of his
union activities.
(2) Evidence of cause for discharge of Merriman
(a) The initial investigation
When Britt first called Wright and Wright asked Mer-
riman why his quadrant was down, Merriman said they
broke them back on the second floor. Wright asked him
if he had been notified that the second floor was begin-
ning to pull the packs, and Merriman said no. Wright
said he would go to the second floor to see if for any
reason they had changed the order of removing the
packs because they were supposed to begin on position
16 (the other side of the machine) and then come over to
position 17 on Merriman's side, which would have made
his positions the last to go down. Wright then went to
the second floor and learned that they had not yet begun
changing packs on the fourth quadrant of machine 311
and that they were just then starting to pull the packs at
position 16 on the other side of the machine.
He returned to Merriman who reaffirmed what he had
said before. Wright then checked the break records
which showed five breaks recorded between 8 and 9
a.m., three quality breaks and two string-in breaks, which
normally would be recorded by Merriman as quadrant
operator, or by Vincent as the patroller.
Wright returned to Britt and the two of them contin-
ued their discussions. They were joined by Britt's superi-
or, Jack Bryant, and, after further discussion, Britt noti-
fied the area supervisor, Harold Reed. After about an
hour they decided there had been no equipment failure,
that there was no reason for Merriman's quadrant to
cease operating while others continued, that the yarn
buildup in the interfloor tubes observed by Britt could
only happen by the operation being "broken back" from
the first floor, and that it was Merriman who had broken
the positions back to avoid stringing up and doffing off
again. Britt told Wright to send Merriman home pending
completion of the investigation.
(b) The firther investigation
After Merriman was sent home, according to Bryant,
the supervisors continued their investigation by looking
at process records, break records, and other unspecified
information. The record evidence shows that all of the
spinning machines were erratic in performance. Spinning
machine 311 was no more so than the others. Company
records indicate that the number of breaks experienced
on the quadrant on which Merriman was working was
comparable to that experienced on other machines.
In comparing notes prior to sending Merriman home
Bryant, Britt, and Wright took note of the fact that on
his quadrant Merriman was running a great deal of cord-
age and also that, although his quadrant went down, the
others kept running normally. They determined there
had been no equipment failure; that there had been no
reason for Merriman's quadrant to go down and the
others to continue to run. Britt had observed yarn build-
ing up in the interfloor tube which, according to him,
could only happen when the positions are broken back
from the first floor. They decided Merriman had com-
mitted sabotage because each time Wright spoke with
him, he said that the second floor had broken the posi-
tions back, and, based on what Britt observed, that could
not have happened. One additional factor considered was
that if positions are broken back on the second floor no
accumulation of yarn develops in the interfloor tube as
occurred with some of Merriman's positions approxi-
mately 15 minutes before the line was shut down for the
transfer switch. These were the considerations which
Britt testified persuaded the supervisors that Merriman
had intentionally shut down his quadrant. In searching
for a reason why he would have done this, they appar-
ently inferred that he was trying to avoid the additional
work of restringing and doffing.
After sending Merriman home, Britt, Bryant, and
Wright looked at process records and break records on
the spinning machines as well as other information not
specified by Britt. This did not alter their views. At
about 3 in the afternoon Britt presented the matter to
"the staff' in accordance with established personnel pro-
cedure, recommending that Merriman be discharged for
deliberate, unauthorized shutdown of company equip-
ment and sabotage. The staff accepted the recommenda-
tion and this became the dispositive determination in dis-
charging Merriman, subject, of course, to the possibility
of reversal in the event of an appeal to the plant man-
ager. In Merriman's case no appeal was taken.
(c) Concludingfindings respecting motive in
discharging Merriman
Considering all the above evidence, I find that Re-
spondent has failed to demonstrate that it would have
suspended and then discharged Merriman even if he had
not engaged in union activities. As already pointed out
herein he was outstandingly active on behalf of the
Union. And, as he pointed out when he was accused of
deliberately shutting down his quadrant, it would be
foolish for him as a union activist to have done so. He
asked for a thorough investigation.
One circumstance which significantly influenced the
supervisors who recommended his suspension and dis-
charge was Merriman's own statement, which he reaf-
firmed, that the second floor had broken back his posi-
tions. It is clear from all the evidence that he referred to
the last three positions that went down. This view of the
supervisors assumes the question at issue; namely, Merri-
man's honesty in making that statement. This is so, be-
cause, if he really did not break back these positions
(which he repeatedly denied doing) then the most logical
explanation, in view of the planned transfer change, was
the one he gave when Wright asked him what happened.
Thus, his repetition of this explanation was and is no evi-
dence whatsoever that he was guilty of sabotage.
Another circumstance considered important by these
supervisors was that only the fourth quadrant of spinning
machine 311 was entirely down while other quadrants
181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued to operate "normally," and the supervisors
concluded there was no reason for this other than sabo-
tage by Merriman. But the evidence shows that Merri-
man's quadrant was not the only one with some down
positions. Yet management held him at fault even though
at least five of his breaks were of the usual type. In this
respect management treated Merriman disparately from
the way it treated other spinning operators on May 16
and from the way it historically had treated spinning op-
erators. This disparate treatment extended to the lost
production involved in the quadrant shutdown for which
management held Merriman responsible. Operators other
than Merriman were not restringing down positions be-
cause of the impending transfer change and received no
discipline for this, it being the usual practice. And the su-
pervisors themselves opted not to limit losses in Merri-
man's quadrant by having him restring down positions
even though from their superior positions they expected
20 minutes to elapse before the transfer change affected
the fourth quadrant.
The operators familiar with spinning machine 311 con-
sidered the fourth quadrant more troublesome and diffi-
cult to work with than other quadrants on 311 or on
other machines. The view of management was that ma-
chine 311 and its fourth quadrant were no more erratic
than other machines and positions, a view supported by
some of the records of breaks. On the other hand, during
the 3 months prior to May 16, company records show a
wide variation between positions on the quadrants of
311, with the first quadrant running best, the second next
best, and the third and fourth quadrants equally running
the worst. During the 3 months after May 16 the first
quadrant again ran best, the second quadrant again next
best, the fourth quadrant third best, and the third quad-
rant the worst. The record indicates that all spinning ma-
chines were erratic so that even if machine 311 and its
fourth quadrant were not typically more erratic than
others that fact is not persuasive evidence that its fourth
quadrant was not erratic enough to shut down on its
own. Yet Respondent's management ruled out this possi-
bility. Employee Campbell testified credibly, and I find,
that about 2 years earlier the entire fourth quadrant of
311 had gone down on its own. Bryant said he could not
remember this, but neither he nor any other supervisor
specifically denied it.
Britt concluded that the accumulation of waste on the
second floor could only result from a breakback on the
first floor and that, therefore, Merriman had broken back
his positions. This, at best, was a judgment call by Britt
there being no persuasive evidence why the same accu-
mulation would not occur if the machine shut down on
its own. Britt, Bryant, and Wright inferred that Merri-
man had shut down to avoid stringing up and doffing off
his positions. This also was faulty reasoning because, as
already noted, other operators were doing the same
thing, it was normal practice to do so, and the supervi-
sors themselves opted against having Merriman restring
his positions. Moreover, there is no evidence in the
record that Merriman was a malingerer. On the contrary
his long tenure indicates he was a satisfactory employee.
In sum, the rationale of the three supervisors, which
became the basis for the staff decision to discharge Mer-
riman, lacks persuasion and fails to demonstrate that the
same conclusion would have been reached if he had not
been a high profile union activist. The prima facie case of
discriminatory motive in the discharge not having been
refuted, I find that Respondent's discharge of Merriman
was flawed by an unlawful motive. I further find that his
discharge discouraged membership in the Union and, fi-
nally, that the discharge violated Section 8(a)(3) and (1)
of the Act. Wright Line, Inc., supra.
3. Harassment and discharge of Gary Jones
Gary Jones was employed by Respondent a little over
8 years, from June 4, 1971, to June 18, 1979, when he
was discharged. At the time of discharge he was a draw
bulk operator in the T-13 cordura area. His duties chief-
ly consisted of stocking his machine and doffing it off.
From March 6, 1979, until his discharge, his immediate
supervisor was Bryan Lane.
a. Jones' union and protected activities
During the preelection campaign Jones was a highly
visible union supporter, the most outspoken among the
approximately 19 employees in his area. His activities in-
cluded obtaining the signatures of approximately 30
fellow employees on union authorization cards, attending
about 10 union meetings, passing out of union handbills
at the main plant gate on about 10 occasions, and wear-
ing various union insignia on his clothing and his doff
bag. In this latter connection he wore a union T-shirt
every day in the plant as well as a hat adorned with
union stickers, buttons, and other insignia. Even after the
Union lost the election, he wore his union T-shirt on two
or three occasions, including June 17, the day he was
suspended.
In mid-March Jones complained to Union Business
Agent Jimmy Tipton about what he considered discrimi-
nation by Supervisor Bryan Lane against himself and
fellow employee Johnny Horton on March 11 and 12.
Thereafter on March 21 the Union on behalf of Jones
and Horton filed unfair labor practice charges in Case
10-CA-14488 with the Board against Respondent. The
charges, which were served on Respondent. allege that
Lane, in violation of Section 8(a)(1) and (3) of the Act,
threatened Jones and Horton with adverse action con-
cerning their job status based on their wearing of union
T-shirts and their support of the Union. Jones was subse-
quently called down to the union hall where he was in-
terviewed by a Board agent and gave an affidavit in con-
nection with the investigation of the charges. Lane simi-
larly was interviewed and gave a statement. The parties
stipulate that the charges were withdrawn on May 8.
b. Company knowledge and animus
As with Watkins and Merriman, Jones' overt, visible
sponsorship of the Union in the plant during the preelec-
tion campaign is persuasive evidence that company offi-
cials had knowledge of his attitude and activities regard-
ing the Union. In addition, as noted below, other evi-
dence in the record further demonstrates such knowl-
edge.
182
E. 1. DUPONT DE NEMOURS
As was the case with Watkins and Merriman, Re-
spondent's numerous independent violations of Section
8(a)(l) of the Act show the general animus of Respond-
ent and its supervisors toward the Union and union pro-
ponents. Specifically respecting Jones' immediate super-
visor, Lane, his unlawful interrogation of Billingsley on
March 5 as well as his statement to the effect that wear-
ing union insignia could cost Billingsley promotion to a
supervisory position indicate his animus toward the
Union and its proponents. Similarly, Lane's objection to
Watkins' obtaining the signature of Byrd to a union au-
thorization card in late February indicates his union bias.
And animus toward Jones' prounion attitudes and activi-
ties is demonstrated by Wiley's remarks to him on the
day before the election in which Wiley indicated the fu-
tility of employees' selecting the Union to represent
them. In his remarks, Wiley commented on how the
Company would fare in any bargaining with the Union,
stating that DuPont was not going to let Gary Jones
stand in its way.
Also, as set out hereinafter, Lane engaged in a pro-
gram of surveillance of Jones which the General Counsel
accurately characterizes as harassment. The timing of
this surveillance and the sanctions that attended it, in re-
lation to the Union's loss of the election and the suspen-
sion and discharge of Jones, further indicate Lane's and
Respondent's animus toward his union activities.
c. The harassment of Jones
The General Counsel contends that Jones was har-
assed because of his union activities and because he
brought about unfair labor practice charges against the
Company.
Sometime in late February Lane was first assigned as
supervisor for the cordura area with approximately 19
employees, including Jones, on his shift. In late February
and early March, to orient himself to his assignment, he
reviewed the personnel files of all employees under him.
Respondent had been experiencing difficulties with cus-
tomers because of defective products and managerial ef-
forts were underway to reduce the number of defects.
Lane endeavored to "run a tight ship" in his section. I
find that he did so, at least in part, because of higher
management's efforts to eliminate product defects.
But his efforts were not limited to the improvement of
efficiency. Around the first of March, while the preelec-
tion campaign was in full swing, employee Michael
Wilson complained to Shift Supervisor James Wiley that
union supporters, which included most of the employees
in Lane's section, were not permitted to leave their work
area although an antiunion employee was allowed to
roam at will. Wiley, admitting he had noticed the same
thing, promised he would talk to Lane about it and get
back to Wilson. Some 2 weeks later, about March 15,
Wiley told Wilson he had spoken with Lane and what
Wilson had complained of would not happen again.
Thus, at the start of his tenure as supervisor in the cor-
dura area Lane used his supervisory authority to restrict
the activities of union supporters. He did this with the
knowledge of his superior and continued to do so at least
until after Wilson complained to Wiley. In a further
effort to tighten up operations in his section, Lane, soon
after he was assigned as supervisor, talked separately to
each section employee about the duties of his job, safety,
housekeeping responsibilities, productivity, use of the
cafeteria, coming to work on time and not leaving early,
and following standard plant procedures. He gave the
same talk to all 19 employees. When he called Jones into
a conference room on March 10 to talk with him, Jones
asked if the Union was to be discussed, because if it was,
he wanted a witness. Lane reassured him they were not
going to discuss the Union and were only going to talk
about his job and things pertaining to it. Their exchange
is of significance in that it further demonstrates Lane's
knowledge of Jones' commitment to the union cause.
Later that same day Jones complained to Union Busi-
ness Agent Tipton about Lane in another connection;
namely, that Lane had threatened him and fellow em-
ployee Johnny Horton in regard to their job status be-
cause they were wearing union T-shirts. The next day,
March 11, Jones mentioned the anticipated charges to
Lane and again emphasized his devotion to the union
cause. As noted above, only the day before Lane had
spoken with Jones about what was expected of employ-
ees in the section and, among other things, he had cov-
ered employee use of the cafeteria saying it was to be
used at lunchtime only unless an employee had permis-
sion from Lane. But the next day Jones left his work
area during working hours to go to the cafeteria for a
Coca-Cola and potato chips. After he returned, Lane
called him into the office and asked him why he had
done so. Jones explained that the coke machine in their
area had taken his money and he did not think in the cir-
cumstances Lane would mind his going to the cafeteria
for a coke and potato chips. He admitted his error in
doing so without permission. Jones also complained that
he felt Lane was picking on him because he supported
the Union. He told him he believed in the Union so
strongly he would give his life for it. According to Lane,
whom I credit in this respect, he told Jones that he be-
lieved in Jones' right to have a union and would not in-
terfere with it. Also during the conversation, Jones told
Lane, in reference to the unfair labor practice charges
which he anticipated would be filed with the Board, that
the next day Plant Manager Hawfield would be receiv-
ing a letter informing him that unfair labor practice
charges were filed against Lane on which he would have
to go to trial. He also said that, after the Union won the
election, Jones was going to take Lane to Federal court
in Atlanta. o
On April 9 Lane noticed that Jones, contrary to stand-
ard practice, was 19 positions ahead of his doffing sched-
ule, which could result in undersized packages of prod-
uct on the early doff and oversized packages on the next
doff. There is no evidence that Lane took this problem
up verbally with Jones. But on May 16 he issued him a
written reprimand or intermediate contact which includ-
ed, among other things, this failure to follow standard
practice. Assuming, without finding, that Lane did speak
to Jones about the problem. his saving of this tidbit for
10 It is not clear from the record precisely what sort of a proceeding
Jones had reference to.
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
memorialization in a written contact in mid-May exem-
plifies his careful building of a case against Jones.
On April 22, 3 days before the election, an incident oc-
curred which further underlined Lane's knowledge of
Jones' position as a union activist. Lane had him in the
office for the purpose of informing him about a raise
which employees were to receive. In the course of their
conversation Lane attempted to turn the discussion to a
union 'handbill. Jones refused to discuss the matter. The
fact that Lane endeavored to engage him in a discussion
of a union handbill tends to show his understanding of
Jones as someone who knew about and could be respon-
sive respecting union campaign policies and techniques.
A day or two later Wiley and Jones engaged in a discus-
sion as to who would win the Board election, Jones as-
serting that the Union would win and Wiley indicating
that even if the Union won the bargaining process would
have to follow. Jones then stated that the Company had
not experienced bargaining until they bargained with the
Teamsters. Wiley replied that DuPont would not let
Gary Jones stand in its way. This incident demonstrates
not only knowledge of Jones' union views but also indi-
cates hostility toward him as a union adherent and was
an oblique prediction of what ultimately happened to
him.
Jones testified that after the Union lost the election
Lane stepped up his harassment against Jones. I find
Lane did so in the following respects: On a nightly basis
he stood at the end of the machine aisle in which Jones
worked and stared at Jones during his doff cycle; several
times a week when, in accordance with established prac-
tice, Jones at his discretion took a break as his work was
caught up, Lane got him out of the rap shack and re-
quired him to work at his machines even though he was
busier than he previously had been and was taking fewer
and apparently shorter breaks; on virtually every shift
Lane took him out of his machine aisle and talked to him
about one or another alleged failure; and on about 10 oc-
casions between the end of the union campaign and
Jones' discharge, at times when Jones was working with
a "doffing buddy," Lane required him to remain at his
machine to keep the operation running and to replace the
bobbins as they ran out even though his fellow employ-
ee, or buddy, was allowed to operate in the normal
manner by taking breaks at his own discretion. The
above finding, based on Jones' testimony, is supported
also by the general corroboration of fellow employees
Michael Wilson and Larry West. Both testified that Lane
followed up more closely on Jones than on other em-
ployees and that he stood at the end of the machine aisle
staring at Jones during the doff cycle. West specifically
corroborates Jones' testimony that he was kept working
constantly while his "buddy" employee was allowed to
operate normally. Lane testified that following the elec-
tion he had no greater number of talks with Jones than
before and that he paid no more attention to him than to
other employees. In view of the above, however, I do
not credit his testimony.
Soon after the election, I infer, on or about April 27,
Lane changed the work rules for Jones in a manner re-
quiring him to perform a greater amount of work than
before and a greater amount than was required of his
fellow employees. The normal practice had been to oper-
ate what is called the heel machine on a 97-minute cycle
at the end of which the machine was doffed before com-
mencing a new cycle. Following the election all employ-
ees in the section except Jones continued on the 97-
minute cycle and, while waiting for the cycle to end,
took breaks. By contrast, Lane put Jones on a continuous
operation whereby he was required to stay with the ma-
chine and, as the bobbins ran out, to restock them, string
them up and thereby keep the machine constantly run-
ning. The result was that an additional complete doff
was accomplished each shift which involved more work.
I base this finding on the credited testimony of Jones.
Although Lane at first denied he imposed these extra
duties on Jones, his subsequent testimony vacillated. I
find his testimony less reliable than that of Jones.
About May 2, approximately a week after the Board
election, Jones came to work to find that the operator on
the prior shift had left five large "wraps" on a spinning
machine known as the draw bulk machine. Wilson cor-
roborates Jones that the wraps were the result of oper-
ations on the prior shift. Nevertheless, at the end of
Jones' shift he was reprimanded by Lane for failing to
properly patrol his machine thereby resulting in the
buildup of the five large wraps. Although Jones ex-
plained to him that the wraps were not his but from the
prior shift, Lane, nevertheless, incorporated his repri-
mand in the intermediate contact of May 16.
On May 13 Lane reprimanded Jones for two safety
violations, the use of a pocket knife to remove wraps,
and improperly using a hook knife. Lane subsequently in-
corporated these alleged violations in his intermediate
contact of May 16.
The recommended practice for the removal of wraps
is to use a burning gun. However, as Lane admits, burn-
ing guns were seldom available. Jones credibly testified,
and I find, that most employees carry pocket knives and
that it is common practice in the plant to use these
knives in removing wraps. Considering both the
common, allowed practice of using pocket knives and
the general unavailability of the preferred burning guns,
Jonles was not guilty of objectionable conduct and Lane
was plainly wrong ill reprimanding him and writing him
up in the intermediate contact.
As to the hook knife, Lane testified that the approved
practice is to hold the knife with one hand while grasp-
ing the wrist of that hand with the other hand. He assert-
ed Jones did not do this. Jones, on the other hand, testi-
fied he in fact did grasp the wrist of the knife hand with
his free hand and did in fact follow the prescribed proce-
dure. On this credibility conflict, I credit Jones over
Lane chiefly because Lane was in error in his other
safety violations as well as the matter of the five wraps
which he included in the same intermediate contact and
because of the other evidence tending to show that he
was engaged in a planned program to harass Jones.
In the intermediate contact of May 16, in addition to
memorializing the verbal reprimands of April 9 and May
2 and 13, Lane noted that "On numerous occasions in
the past 6-8 weeks you have ineffectively utilized your
working time by taking breaks when ends were down on
184
E. 1. DUPONT DE NEMOURS
your assignment, by being off your assignment, and out
of your work area without permission." He did not oth-
erwise identify the occasions of these alleged deficien-
cies. But his generalization fits with the evidence already
noted of a program to abnormally restrict Jones in the
number of breaks and justify this on the ground that oth-
erwise his assignments would be neglected. It is pertinent
to note at this point that Jones was an experienced, fast,
and knowledgeable employee and that none of the evi-
dence, other than inferences to be drawn from Lane's
generalizations, indicates that Jones was less efficient or
less productive than his fellow employees. These gener-
alizations include testimony from Lane that Jones spent
too much time in the rap shack and that he had talked to
him numerous times about this. He obviously did talk to
him numerous times about it, but the weight of the evi-
dence does not support the first part of his generaliza-
tion. On the contrary it shows that Jones was spending
less time in the rap shack than his fellow employees.
On June 2 Lane gave Jones a second intermediate con-
tact based on two alleged incidents, one on May 29 and
the other on May 30. According to Lane's writeup, at
the close of the shift on May 29 Jones was observed out-
side his work area in front of his locker with his equip-
ment put away at 8 minutes before the end of the shift at
a time when his machine was down and with no attempt
being made to get it producing. Lane wrote, "This is a
direct failure on your part to follow previous instructions
on 3/10/79."
Without more, Jones would appear from this to be
clearly at fault. However, examination of the entire pic-
ture minimizes his fault. Company regulations allow em-
ployees to cease working 5 minutes before the end of the
shift. Thus, Jones was 3 minutes early. There is no evi-
dence to indicate that employees are required to stay
beyond their assigned time for the purpose of reactivat-
ing machines which at that point are down. Jones testi-
fied without contradiction that other employees were
doing the same thing as he yet only he was reprimanded.
Thus, and, without condoning employees' early depar-
ture from their work stations, Lane both exaggerated
Jones' fault and treated him differently than other em-
ployees, thus discriminating against him.
The incident on May 30 which Lane included in this
intermediate contact involved an incident which oc-
curred while Jones was in the rap shack. During his
break a large wrap developed on one of his machines as
a result of which the machine was shut down and an-
other employee was asked to cut down the wrap. Here
too, Jones appears to have been somewhat at fault. But
this deficiency also must be put in perspective. It is not
uncommon for such wraps to develop while an operator
is on break in the rap shack. Plant practice is for employ-
ees on break to rely on fellow employees not on break
and on supervisors to catch such developing problems.
According to Jones, such problems occur as often as
once or twice a week. There is no evidence that on the
occasion in question Jones remained in the rap shack an
excessively long time. Thus, the problem, and it obvious-
ly was a problem, is within the ambit of normal oper-
ations. And while Lane may not be criticized for endeav-
oring to limit problems and increase efficiency, this inci-
dent appears to be another example of his singling out
Jones for reprimand.
In his intermediate contact Lane indicated that a copy
would be placed in Jones' personnel folder and that con-
tinuing audits would be made to assist him in improving
his job performance. He gave Jones an opportunity to
read the writeup. He noted Jones' response as, "Very
poor, says I am unreasonable, I am trying to railroad him
out of here, says he is doing me a good job and he has
no intentions of trying to improve since there is no way
he can satisfy me."
d. The employment performance review
An employment performance review, or EPR, is a
type of written job evaluation of the employee by his im-
mediate supervisor. It is given annually to employees
with the Company less than 5 years and biannually to
those with the Company more than 5 years. The EPR is
on a standard form whereby the supervisor may evaluate
the employee as outstanding, good, satisfactory, or mar-
ginal in various categories. These categories include
safety, housekeeping, quantity of work, quality of work,
ability to get along with others, attendance, dependabil-
ity, initiative and job interest, job knowledge and skill,
and use of worktime. On June 16 Lane gave Jones his
biannual EPR covering the prior 2 years even though he
had only supervised him for the last 3 months. He
classified Jones as marginal in all categories except two,
namely, ability to get along with others, in which he ap-
praised him as satisfactory, and job knowledge and skill,
in which he appraised him as good. His overall evalua-
tion was marginal. Under "Remarks" he justified his
evaluation on the ground that Jones violated safety rules,
showed no interest in safety in that he did not attend
safety meetings, that he had taken breaks while his ma-
chine was down, his failure to get broken positions re-
strung, his lack of interest in his job, his slowness to re-
spond to instruction, and his overall attitude toward his
job and the Company.
Lane noted on the EPR that Jones gave no reaction to
the evaluation. In his testimony, on the other hand, he
reported that Jones asserted Lane was trying to railroad
him out of the plant, which assertion Lane denied, and
that Jones said he was doing a good job for Lane and
had no intentions of changing regardless of what Lane
said. It seems obvious that Lane was confusing his inter-
view on the occasion of the EPR with the interview on
June 2 when he gave him his second intermediate con-
tact. This is of no great significance other than to indi-
cate Lane's confusion in testifying and to cast some
doubt on the reliability of his testimony.
In preparing the EPR Lane reviewed Jones' personnel
file which included the EPR from 2 years earlier which
Lane testified was marginal. Jones, on the other hand,
testified that his evaluation from 2 years before was
good. Lane destroyed the earlier EPR when he prepared
the current one. According to him this was normal prac-
tice. No other company witness was produced to cor-
I It is clear from Lane's testimony that the evaluation was for the pre-
ceding 2-year perixod and not just the penod of Lane's tenure as Jones'
supervisor.
185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roborate the nature of the earlier evaluation although it
would seem that such witnesses, either supervisors or
personnel officials, should be available. The General
Counsel points out that, if Jones' prior evaluation were
marginal, it seems doubtful Respondent would have con-
tinued him in its employ. Giving due consideration to
these various factors, I find Jones' testimony to be the
more persuasive and find further that his previous evalu-
ation did not indicate that he was, overall, a marginal
employee. Although in preparing his EPR on Jones,
Lane looked at his personnel file, he did not consult with
any of Jones' earlier supervisors. Jones' personnel file
contained four intermediate contacts, the two issued by
Lane already referred to, one dated about 6 months earli-
er, and one from over a year and a half earlier. Except
for these the file contained no adverse information.
Part of Lane's rationale for rating Jones marginal in
the category of safety was that he had not attended
safety meetings in the 3 months he was under Lane. This
is another example of Lane's overemphasis and over-
reaching. Admittedly, attendance at the safety meetings
is not required. Most of the employees under Lane did
not attend them." There is no evidence of other em-
ployees being disciplined or even criticized for not at-
tending them.
In the category of housekeeping Lane rated Jones
marginal for the 2-year period based only on his general
observation of him in the last 3 months. He used the
same basis in rating him marginal in the categories of
quantity of work and of quality of work. During Lane's
tenure as his supervisor, Jones had no absences. In fact
he had no absences for the 6 months period from Janu-
ary 1, 1979, to the time of the EPR and he had only six
absences for the entire year of 1978, all of which were
excused absences for medical disability. Yet Lane rated
him marginal in the category of attendance. In the cate-
gory of use of working time Lane evaluated him margin-
al, apparently based on his general criticism that Jones
spent too much time on breaks and not enough at his ma-
chine. To some extent this was a subjective evaluation
since traditionally no formal break schedule had been in
effect, employees simply taking breaks at their discretion
when they think the job is caught up and during breaks
rely on fellow employees and supervisors to alert them
to problems. Lane's subjective evaluation is suspect be-
cause of his demonstrated union animus and because of
the other evidence indicating that he was making every
effort he could as a supervisor to put Jones in jeopardy.
As noted above, Lane rated Jones as satisfactory in the
category of ability to get along with others and rated
him good in the category of job knowledge and skills.
Nevertheless, in spite of these better appraisals and of the
fact that Lane was his supervisor for only 3 months, and
in spite of the shaky grounds for most of the marginal
appraisals, Lane gave him an overall evaluation of mar-
ginal. He noted that because of Jones' overall attitude
toward his job and the Company, his overall perform-
ance was unacceptable. In talking to Jones about the
Is In his prehearing affidavit Lane states that from 3 to 8 employees in
his section of 20 to 21 attended safety meetings.
EPR he used the familiar euphemism that Jones had a
"bad attitude" toward the Company and supervision.
e. The confrontation of June 17
The machines with which Jones worked are noisy.
Employees who work in that area wear ear plugs to pro-
tect their ears. For both of these reasons verbal commu-
nication in the area is conducted in louder than normal
tones in order to overcome these barriers.
Jones has a high-pitched voice. Moreover, it has been
his habit for years to address others in the area in loud
and high-pitched tones which are variously described in
the record as hollering, yelling, and screaming. On occa-
sion, he has simply erupted into a yell with no apparent
intent to communicate specifically with anyone.
About May 15 Lane heard Jones emit a yell, or, as
Lane described it, a scream. He directed Jones not to
scream, apparently because Lane considered it a signal
that the screaming employee was hurt. Jones said he
would not do it any more. But, as might be expected, he
eventually did. About a month later, on June 17, as Lane
entered the cordura area, he heard Jones let out a holler.
Jones' fellow employee Michael Wilson also heard him
holler and looked up. On the other hand, Larry West
who also was working in the area did not hear him. I
find the holler was louder than normal for most employ-
ees but was not extremely loud. Lane testified, "He let
out this real loud, high pitched scream .... " And
again, "It was extremely loud, to the top of his voice and
it was real keen, high pitched." In view of the testimony
of Jones' fellow workers, I do not credit Lane's testimo-
ny to the extent that it indicates that the sound emitted
by Jones was really loud or that it was a high decibel
scream as that term is generally understood. Lane's testi-
mony appears to be another instance of his stretching the
facts.
At the time Jones was working at a machine called an
air stripper. Upon hearing him holler, Lane walked up to
within a foot or two of him. I base this finding on the
testimony of both Wilson and West who corroborate
each other and Jones. Lane testified that on entering the
area and hearing the scream he motioned to Jones to
come to him, that Jones turned off the air stripper and
walked toward Lane some 15 to 20 feet. In view of the
testimony of Wilson and West, who were more disinter-
ested witnesses than Lane, I do not credit him insofar as
his testimony indicates that Jones came toward him and
that the two of them were away from the air stripper
machine.
As noted above, the two were at the air stripper ma-
chine and very close together. Jones testified that Lane
put his face in his and that they were so close that he
bumped his stomach. As to their closeness, I credit the
testimony of Wilson and West that they were as close as
a foot or two from each other and do not credit Jones
that they bumped stomachs. Lane said, "I thought I told
you to quit hollering." I base this finding on the testimo-
ny of Jones and also because such a declaration is con-
sistent with the direction against hollering which Lane
had given to him a month earlier. Lane testified that he
said, "Gary, I believe that we have discussed your
186
E. 1. DUPONT DE NEMOURS
screaming on a previous occasion." But this seems a less
likely wording in the circumstances and I do not credit
Lane on this. At that point Jones admittedly "blew up."
According to Wilson, who read his lips, he said he
would scream any "goddamn" time or place he wanted.
Lane corroborates this. At that point Jones pushed Lane
back a step or two with the palm of his hand on Lane's
chest and, according to Lane, whom I credit in this re-
spect, said that Lane had lied about him and to him, had
told every "goddamn" lie that could be thought of, and,
if Lane were not an old man, Jones would stomp his
"goddamn ass" in the floor. He asked Lane if he wanted
to fight. Meanwhile Lane backed off a little, then he
turned to leave the area with Jones right beside him con-
tinuing with his tirade. They proceeded this way a short
distance to the edge of the machine aisles at which point
Jones ceased his diatribe and returned to his work. Lane
continued his exit and went to see Shift Supervisor
Wilet. Shortly after he returned to his work, Jones told
West that Lane was in his face, that he was talking to
him in his face, and that he pushed Lane to get him out
of his face. This, I find, accurately described the situa-
tion. As noted above, Lane did not touch Jones. But he
did come close to him, so close as to commit in the mind
of Jones a type of social aggression. This is not to sug-
gest that in coming close to Jones, Lane was doing any-
thing illegal but it does help explain why Jones, in his
own words. "blew up." The language of former Chair-
man Fanning in his dissent, in Jupiter 8, Inc., 242 NLRB
1093, 1094 (1979), aptly describes Jones' condition, "his
nerves had been rubbed raw by the treatment he had re-
ceived since the election, and that all of Morton's [in the
present case Lane's] conduct had been pointed to this
result." In Jupiter 8, Inc., the employee involved had
been subjected to a 3-week campaign, violative of Sec-
tion 8(a)(l), by the company president who repeatedly
told the employee he did not want him working for him
because of his support of the union. Subsequently, the
employee refused to follow the president's work direc-
tions and was fired for insubordination. Because of his in-
subordination, the Board majority found his discharge
lawful.
f. Jones' suspension and discharge
Following his confrontation with Jones, Lane immedi-
ately reported to Wiley what had occurred. Wiley inves-
tigated by going to Jones at his work station and asking
him for a statement. Jones declined with the words, "My
word don't count." Wiley left but returned in 15 minutes
to again ask him for a statement and again Jones declined
but did say, "I've been pushed too far and I blew up."
Wiley then sent Jones home with instructions not to
return until he was called back.
Wiley did not extend his investigation any further.
Even though West informed him that he had observed
what happened, Wiley did not find out what he had ob-
served or make any effort to find out whether any other
fellow employee had had any information to offer.
The next day, June 18, Lane recommended to the staff
that Jones be discharged for his verbal abuse and his
physical attack on Lane. In the course of his presentation
he reviewed Jones' job performance. It is clear, howev-
er, as he testified, that hitting, pushing, or shoving a su-
pervisor is, without more, grounds for discharge. After
deliberating, the staff adopted Lane's recommendation
and ordered that Jones be discharged. Wiley then called
him to the plant employment office where he talked to
him in the presence of Joe Rowe. Wiley told him it was
a difficult decision but that they had decided to dis-
charge him because of the seriousness of the incident the
day before. He also told him he was young and capable
and Wiley felt he could find suitable employment else-
where. Jones saw some sort of termination slip on the
office desk which he picked up and read. It stated that
he was discharged as "unreliable-attempting to do a su-
pervisor bodily harm." Following the interview Wiley
escorted him out of the plant.
The next day, Tuesday, June 19, Jones received in the
mail what apparently is a separation notice for use in an
unemployment compensation claim. It was on a form en-
titled "Separation Notice, Tennessee Department of Em-
ployment Security." It indicated that Jones had been dis-
charged and under the space provided for detailed expla-
nation carried the entry "Discharged-unsatisfactory job
performance."
The General Counsel argues that because Lane ad-
mitted that Jones' job performance was included in his
presentation to the staff and it played a part in his rec-
ommendation, that this constitutes a variance from his
initial description of the basis for his recommendation,
Jones' verbal threats and physical attack. I do not view
this as a variance because in every discharge case job
performance information is presented to the staff by the
recommending supervisor and reviewed by them. The
General Counsel also argues that Respondent has vacil-
lated in the reasons given for the discharge because on
the notice for the Tennessee Department of Employment
Security only unsatisfactory job performance is noted as
a reason and no reference is made to the verbal or the
physical attack on the supervisor. I do not view this as a
meaningful vacillation because the notice which Jones
saw at the time of his termination did refer to the inci-
dent with Lane and because the notice on which the
General Counsel relies was delivered to Jones subsequent
to his discharge. Con,;idering that the purpose of that
notice obviously was for use before the Tennessee De-
partment of Employment Security, it seems to me the
reason for limiting the explanation on the form to unsa-
tisfactory job performance very likely was to avoid cre-
ating a public record of verbal and physical attack on
Lane.
g. Respondent's motive in its conduct toward Jones
The evidence reveals an ongoing and growing conflict
between Lane and Jones commencing shortly after Lane
took over the cordura section and culminating in their
confrontation on June 17. In this the supervisor plainly
had the upper hand as he built his case piece by piece.
Lane's motive in doing this must be evaluated in the con-
text of the whole situation.
Thus, the evidence demonstrates beyond doubt that
Jones was quite active on behalf of the Union, that man-
agement knew of his prounion attitude, and that Lane
187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Wiley in particular knew of his dedication. The
other numerous unfair labor practices committed by Re-
spondent show widespread managerial animus toward
the Union and its supporters. And Lane's own animus in
this regard is demonstrated in his violation of Section
8(a)(1) in late February when he unlawfully endeavored
to restrict Watkins in obtaining Byrd's signature on a
union authorization card and his March 5 conversation
with Billingsley in which he unlawfully interrogated him
about union activities and indirectly threatened him with
the loss of a chance for promotion for displaying union
insignia on his clothing. Even Wiley demonstrated his
animosity toward Jones' union activities when on the
day before the election he in effect told him that even if
the Union won the employees would gain nothing, the
inference being that it was futile for them to obtain union
representation and bargaining.
But evidence of unlawful motive is not limited to this
general showing of animus. In building his case against
Jones, Lane treated him differently than he did other em-
ployees. Thus, in the matter of the 97-minute cycle on
which he kept all other employees in the section, he
treated Jones disparately by putting him on a continuous
cycle which resulted in his performing more work than
the others. Also, the evidence showing that he more fre-
quently took Jones out of the rap shack than he did
others tends to show disparate treatment. The very docu-
mentation against Jones which Lane carefully built, in
part by his close surveillance of and attention to him,
carried adverse consequences for Jones in the form of
the intermediate contacts which were written up and the
marginal EPR evaluation, all of which went into his per-
sonnel record. This disparate treatment was in part based
on and justified by Lane's overreaching judgments in
which he overweighted and exaggerated minor faults.
Considering Lane's supervision in this context, I find that
the evidence establishes prima facie violations by him,
and therefore by Respondent, of Section 8(a)(l), (3), and
(4) of the Act.
To find the above, however, is not to say that Lane
could not exercise his supervisory authority in regard to
Jones. In many of the incidents in which I find discrimi-
nation, he had some basis for exercising his supervisory
authority and, had he not overplayed his hand or if he
had been evenhanded in his dealing, no discrimination
would have occurred. But even allowing that Jones had
his faults as an employee, the evidence does not show
that Lane would have taken the same actions respecting
this skillful, experienced, employee of 8 years if he had
not been the personification of prounionism in his section
or had not instigated and given supporting evidence for
unfair labor practice charges against the Company in
Case 10-CA-14488 which involved Lane. Therefore, and
especially in the light of Lane's disparate treatment of
Jones and his stretching of the incidents involving him, I
find that he unlawfully harassed Jones from shortly after
Lane became supervisor in the section until their con-
frontation on June 17 and that in doing so he and Re-
spondent discriminated against him because he engaged
in union activities, thereby discouraging membership in
the Union. This conduct violated Section 8(aXl) and (3)
of the Act. Jupiter 8, Inc., supra; Wright Line, Inc., supra.
Similarly, because Lane also harassed Jones because he
caused charges to be filed with the Board and gave an
affidavit to support them, he and Respondent violated
Section 8(a)(1) and (4) of the Act. N.L.R.B. v. Robert
Scrivener, d/b/a AA Electric Company, 405 U.S. 117
(1972).
I find, on the other hand, that the suspension of Jones
on June 17 and his discharge on June 18 were not unfair
labor practices. Even in the light of the unfair labor
practices up to that point, there is no persuasive evidence
that Jones was suspended or discharged because of pro-
tected conduct. Nor is there any evidence of a preexist-
ing intention on Respondent's part to discharge Jones at
the time it did. Rather, the weight of the evidence shows
beyond question that it was the confrontation between
Jones and Lane which provided clear grounds for the
action management took. Jones' propensity for hollering
was, in my opinion, a minor matter. Even so, a supervi-
sor may legitimately limit such outbursts on any number
of grounds including the one which Lane gave, that it
could be understood as a cry from someone who was
hurt. In approaching Jones on June 17 to remonstrate
with him about the hollering, Lane did not assault him.
Even though Jones may have felt affronted by his prox-
imity, he could easily have backed away. Jones was not
cornered. There was no need to protect himself from
Lane. Thus, although Jones' frustration with L.ane, con-
sidering what had gone on before, is understandable, it
provides no justification for his assault in pushing Lane
or his insubordinate and ill-tempered tirade which ac-
companied and followed the pushing. There is no doubt
that this conduct was the sole ground for suspending and
discharging him. The General Counsel's contention that
Jones' performance record as amassed by Lane played a
part in that decision lacks merit. Jones' conduct on June
17 provided a total reason for discharge. His record
came into consideration only in the sense that in every
discharge case the reporting supervisor considers and
presents to the staff the employee's record. That, howev-
er, does not establish that the performance record played
a significant part in the recommendation or in the deci-
sion to discharge. In this connection it is noted that
Wiley suspended Jones on June 17 without considering
his record and wholly on the basis of the incident on that
day. And, considering the absence of any prior intent to
discharge on that occasion, the strong reasons for dis-
charge present in the confrontation on June 17, and the
promptness of the discharge thereafter, the conclusion is
inescapable that that was the sole reason for discharge.
Jupiter 8, Inc., supra. As with employee Cope in Great
Western Coca Cola Bottling Company, d/b/a Houston
Coca Cola Bottling Company, 256 NLRB 520 (1981),
Jones' pushing of a supervisor is a serious offense even if
his frustration because of past unfair labor practices is
understandable. At the time Jones was not even arguably
engaged in protected conduct (see Atlantic Steel Compa-
ny, 245 NLRB 814 (1979)), or even unprotected collec-
tive action. See N.LR.B. v. Thayer Company and H. N.
Thayer Company, 213 F.2d 748, 753 (Ist Cir. 1954). In
these circumstances I find that Jones' suspension and dis-
188
E. I. DUPONT DE NEMOURS
charge are not unfair labor practices as contemplated by
Section 8(a)(1), (3), and (4) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth in
section 111, above, occurring in connection with the op-
erations described in section 1, above, have a close and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(l) of the Act by the follow-
ing conduct:
a. Orally promulgating, maintaining, and enforcing an
overly broad no-solicitation rule.
b. Refusing off-duty employees access to the plant
cafeteria contrary to past practice and in order to inter-
fere with employee union activities.
c. Interrogating employees about their union views
and activities.
d. Soliciting an employee to remove union insignia
from his clothing without a valid business justification
for the request.
e. Promising benefits to employees if they would vote
against the Union in a Board election.
f. Threatening employees by implying that it will be
futile for them to select a union to represent them.
g. Threatening employees with reprisals for engaging
in union activities.
h. Threatening employees with loss of future promo-
tions because they engaged in union activities.
i. Threatening the future loss of' jobs if employees se-
lected the Union to represent them.
j. Denying employee James Merriman his right to
have a representative of his choosing present at investi-
gative interviews related to his discharge.
4. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (I) of the Act by sus-
pending James Merriman on May 16, and discharging
him on May 17, 1979, and thereafter failing to reinstate
him.
5. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(l), (3), and (4) of the Act by
its program of harassment of Gary Jones from early
March to June 17, 1979.
6. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
7. Respondent did not commit unfair labor practices
by:
a. Discharging Ronald Watkins on May 15, 1979, and
thereafter failing to reinstate him.
b. Suspending Gary Jones on June 17 and discharging
him on June 18, 1979, and thereafter failing to reinstate
him.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act. I recommend what is commonly
referred to as a broad order because Respondent is
shown to have a proclivity for violating the Act and has
engaged in widespread misconduct demonstrating a gen-
eral disregard of employee statutory rights. Hickmort
Foods, Inc., 242 NLRB 1357 (1979). I recommend that
Respondent be ordered to offer James Merriman immedi-
ate and full reinstatement to his former position or, if
that position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
benefits and privileges, and that he be made whole for
any loss of earnings incurred as a result of being sus-
pended on May 16, 1979, and discharged on May 17,
1979, with backpay to be computed as prescribed in F
W. Woolworth Company. 90 NLRB 289 (1950), and with
interest as set forth in Isis Plumbing & Hearing Company.
138 NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977). I further recommend that Respondent
be required to preserve and make available to Board
agents, upon request, all pertinent records and data nec-
essary in analyzing and determining whatever backpay
may be due. I also recommend that Respondent be re-
quired to post appropriate notices at its Chattanooga
plant.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER"t
The Respondent, E. I. DuPont de Nemours, Chatta-
nooga. Tennessee, its officers, agents, successors, and as-
signs. shall:
1. Cease and desist from:
(a) Promulgating, maintaining, or enforcing rules
which interfere with employee union solicitation activi-
ties in nonwork areas of the plant or during nonworking
time.
(b) Refusing off-duty employees access to the plant
cafeteria, contrary to past practice, in order to interfere
with employee union activities.
(c) Coercively interrogating employees about their
union views and activities.
(d) Interfering with free exercise of employee rights by
soliciting employees not to wear union insignia on, or to
remove union insignia from, their clothing without valid
business justification for such request.
13 In the event no exceptions are filed as provided by Sec 10246 of
the Rules and Regulations of the National l.abor Relations Board, the
findings, conclusions. arid recommennnded Order hereto shall, as provided
in Sec. 102 48 of the Rules and Regulations, he adopted by the Board and
become its findings, co,nclusiorns, and Order. and all objections thereto
shall be deemed vaived for all purposes
189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Promising benefits to employees to induce them to
vote against a union in a Board election.
(f) Threatening employees directly or by implication
that it will be futile for them to select a union to repre-
sent them.
(g) Threatening reprisals to employees for engaging in
union activities.
(h) Threatening employees that they will not be pro-
moted because they engage, or if they engage, in union
activities.
(i) Threatening the future loss of jobs if employees
select a union to represent them.
(j) Refusing to allow employees the assistance of a rep-
resentative of their own choosing at investigative inter-
views related to their discipline or discharge.
(k) Harassing, disciplining, suspending, discharging, or
otherwise discriminating against employees because they
engage in union activities or because they cause charges
to be filed with the Board or give testimony under the
Act.
(1) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
a labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in
other concerted activities 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 or all
such activities.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to James Merriman immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole for any
loss of earnings or benefits he may have suffered by
reason of Respondent's discrimination against him as set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records necessary to analyze the amount of backpay due
under the terms hereof.
(c) Post at its Chattanooga, Tennessee, plant copies of
the attached notice marked "Appendix."' 4 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respodent for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that insofar as the complaint
alleges unfair labor practices not specifically found in
this Decision, such allegations are hereby dismissed.
t4 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."
190