DuPont de Nemours, E. I., and Company, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1981

257 N.L.R.B. 139 (N.L.R.B. 1981)

E. I. DUPONT DE NEMOURS AND COMPANY, INC. 139
E. I. DuPont de Nemours and Company, Inc. and
United Steelworkers of America, AFL-CIO,
CLC. Cases 11-CA-8986 and 11-CA-9095
July 23, 1981
DECISION AND ORDER
On February 18, 1981, Administrative Law
Judge Hutton S. Brandon issued the attached Deci-
sion in this proceeding. Thereafter, Respondent and
the General Counsel tiled exceptions and support·
ing briefs, and Respondent tiled a brief in response
to the General Counsel's exceptions.
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, 1 and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section IO(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 and
hereby orders that the Respondent, E. I. DuPont
de Nemours and Company, Inc., Wilmington,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 While the record shows that Supervisor Monroe remarked to
Thomas that Respondent considered Thomas' union activities and filing
of a workmen's compensation claim to be threats to Respondent, in the
absence of exceptions we adopt pro forma the Administrative Law
Judge's conclusion that Respondent's remarks only with respect to
Thomas' union activities constitute a violation of Sec. 8{a){l) of the Act.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This case was heard at Wilmington, North Carolina, on
October 8 and 9, 1980. 1 The charge in Case 11-CA-8986
was filed by the United Steelworkers of America, AFL-
CIO, CLC, herein called the Union, on March 12, while
the charge in Case 11-CA-9095 was filed by the Union
on April 28 and amended on May 30. An order consoli-
dating cases, consolidated complaint and notice of hear-
ing issued on July 2, alleging that E. I. DuPont de Ne-
mours and Company, Inc., herein called the Respondent
or the Company, violated Section 8(a)(l) of the National
Labor Relations Act, as amended, herein called the Act,
1 All dates are in 1980 unless otherwise stated.
257 NLRB No. 33
through the conduct and statements of a number of su-
pervisors, and violated Section 8(a)(3) and (I) of the Act
in issuing a warning notice to its employee, Harry
Thomas, on October 29, 1979, and tl:.ereafter placing
Thomas on probation on the following April 19.
Upon the entire record,2 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation with a
plant and facility located at Wilmington, North Carolina,
where it is engaged in the manufacture of textile fibers.
During the 12 months preceding issuance of the corn-
plaint the Respondent received goods and materials
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of North Carolina. During the same
period of time the Respondent shipped goods and materi-
als valued in excess of $50,000 directly from its Wilming-
ton facility to points outside the State of North Carolina.
The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The complaint alleges, the Respond-
ent's answer admits, and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. MATERIAL FACTS
A. Background
The Union began an organizational campaign at the
Respondent's Wilmington plant in early 1978. Another
labor organization, Boilermakers International Union,
conducted a simultaneous campaign which culminated in
that organization's filing a petition with the National
Labor Relations Board. The Union intervened but subse-
quently withdrew prior to the election which was held
in 1978, which the Boilermakers lost. The Union re-
newed its organizational activities in early 1979. By
April of the following year, according to the testimony
of International Organizer John W. Kitchen, the Union
had secured the signatures of a majority of Respondent's
employees on union authorization cards. The 8(a)(1) con-
duct which was alleged in the complaint and attributed
to the Respondent's supervisors occurred during the
period from late October 1979 until mid-March of the
following year. Additional 8(a)(l) violations attributed to
the Respondent occurred following the filing of the
charges herein; they were related to the Respondent's
advising employees named in those charges that disci-
plinary notations in their respective personnel files would
not be removed notwithstanding the Respondent's
normal procedures of periodically removing such nota-
tions.
2 Error~ in the transcript have been noted and corrected.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The 8(a)(l) Allegations
The General Counsel presented a number of witnesses
to establish the alleged 8(a)(l) violations. The first was
employee Charles Casteen who, at the time of the hear-
ing, had worked for the Respondent for about 7 years.
Casteen related that in the last of February or the first of
March he was approached on his job assignment by Don
Summerlin, relief supervisor for the yarn inspection de-
partment. According to Casteen, Summerlin started the
conversation with Casteen about unions and union orga-
nizing and asked if Casteen were an organizer. Casteen,
by way of an answer, referred to his union pin which he
was wearing at the time identifying him as a union sup-
porter. Summerlin also asked if Casteen had not been
passing out some union material, and Casteen replied af-
firmatively. Summerlin responded that Casteen should
not take it as a threat but, because Casteen had been
written up on an unsatisfactory performance contact
(UPC), a step in the Respondent's progressive disciplin-
ary procedure for employees, it might be best if Casteen
"lay low on union matters." Casteen added during cross-
examination that Summerlin had also asked him why he
was for the "union stuff." Casteen had replied asserting
his reasons listing those things that the Union could offer
employees which the Respondent itself could not.
While Summerlin, called by the Respondent, did not
deny that he had had a conversation with Casteen in
which the unsatisfactory performance contract was men-
tioned, Summerlin placed the conversation at or around
March 9. He testified that it was an outgrowth of a prior
conversation with a group of employees concerned about
payroll employees not being paid for certain "snow
days" when certain other employees had been paid.
Summerlin had explained the reasons, and the group of
employees had dispersed leaving Summerlin talking with
Casteen. He told Casteen that he knew Casteen was on
UPC and suggested that it would help Casteen's status if
he would stay on his job assignment. Thereafter, Casteen
complained about one of his prior supervisors and indi-
cated that that was the reason employees needed a union.
Summerlin inquired whether the Union was needed be-
cause of one supervisor. Casteen replied affirmatively
and Summerlin told Casteen he would like to discuss it
further with him to give the Company's side of the
matter. Casteen responded that he did not think Summer-
lin would have much luck.
The General Counsel contends, based on Casteen's tes-
timony, that Summerlin unlawfully interrogated Casteen
in violation of Section 8(a)(l) and likewise violated that
section of the Act by Summerlin's threat to "lay low on
union matters" during the time he was on UPC. Having
considered the matter, I find Casteen's testimony
straightforward and candid. Casteen's testimony was all
the more credible because he was an employee of the
Respondent at the time of the hearing and was testifying
adversely to his pecuniary interest. Gold Standard Enter-
prises, Inc., et al, 234 NLRB 618, 619 (1978); Georgia
Rug Mill, 131 NLRB 1304 (1961), modified 308 F.2d 89,
91 (5th Cir. 1962). The fact that Casteen was on proba-
tion at the time of testifying, a point relied on by the Re-
spondent in establishing prejudice, tends to enhance Cas-
teen's credibility inasmuch as it increased the risk inher-
ent in his testifying adversely to the Respondent. Based
on Casteen's testimony, I find that the Respondent did
violate Section 8(a)(l) of the Act by Summerlin's interro-
gation of him. The fact that Casteen was wearing a
union pin at the time of the interrogation does not de-
tract from the violative nature of Summerlin's question.
PPG Industries, Inc., Lexington Plant, Fiber Glass Divi-
sion, 251 NLRB 1146 (1980). I also find and conclude
that Summerlin's threat to Casteen to "lay low" on union
matters constituted a threat of unspecified reprisals viola-
tive of Section 8(a)( 1) of the Act, as alleged in the com-
plaint.
The Respondent's coercive conduct was not limited to
Summerlin. Employee James Wimbish related in his testi-
mony that around October 20, 1979, he engaged in a
conversation with Billy Allen, a first-line supervisor in
yarn, concerning dental plans. After telling Wimbish
about the substantial amount of work he had had per-
formed on his teeth paid for under the Respondent's
dental plan, Allen commented that with all the benefits
the employees had at the Company he did not see why
employees needed a union. According to Wimbish, Allen
then asked him how he felt about the Union. Wimbish
replied that he had worked for United Parcel Service
previously where there was a union, but that he really
did not think that much about the Union. Wimbish added
that he did not think a union would accomplish that
much with a big company like DuPont.
Allen denied that he had discussed union activity with
Wimbish. Further, while he admitted that Wimbish had
at one point asked him for some dental insurance claim
forms, there had been no discussion of the forms or
dental benefits.
Wimbish's version of the conversation appears logical
and reasonable. He exhibited generally good recall and
he testified in a forthright and convincing manner. Since
it is clear-even by Allen's admissions-that Wimbish
had some sort of dental problem and claim, it is not un-
likely that the two would have discussed the matter. I
credit Wimbish's testimony that there was such a discus-
sion and that it led to Allen's question of Wimbish re-
garding his union support. I therefore conclude that
Allen's question constituted unlawful interrogation in
violation of Section 8(a)(l).
Wimbish went on to testify that also on or about
March 18 he talked to Larry Hewett, a first-line supervi-
sor in yarn spinning, while the two were out on the pro-
duction floor. Wimbish expressed his appreciation to
Hewett for allowing him to work with Hewett that week
on loan from his regular crew. Hewett responded by ob-
serving that he thought that Wimbish's problem was his
regular supervisor, an apparent reference to the fact that
Wimbish had received a prior unsatisfactory performance
contact. Hewett further told Wimbish that he knew
Wimbish had gone to the union meeting the Monday
night before and that the supervisors "upstairs" including
Bill Sue and Bill Cruise also knew it. Hewett added that
he knew that all but four operators in that work area had
signed union authorization cards. Hewett further told
Wimbish that there had been about 28 people at the
union meeting.
E. I. DUPONT DE NEMOURS AND COMPANY, INC. 141
Hewett admitted having a conversation with Wimbish
about Wimbish's regular supervisor, Billy Allen, a con-
versation initiated by Hewett's inquiry of Wimbish if he
had any problems. When Wimbish replied that his prob-
lem was Allen, Hewett asked if that was why he was
supporting the Union. 3 Hewett further admitted that
there was discussion about the union meeting but that he
had told Wimbish that he did not know whether Wim-
bish had attended and he did not care. When Hewett
commented that he had heard there were 25 or 30
people there, Wimbish had replied that there were 28.
There followed a discussion of Wimbish's report of what
had taken place at the meeting.
Wimbish's testimony with respect to his conversation
with Hewett was reasonable, particularly in light of the
partial admission of Hewett that he inquired if Allen
were the basis of Wimbish's union support. I find Wim-
bish credible. Accordingly, I find that the Respondent,
through Hewett, unlawfully interrogated Wimbish and
created the impression of survei1lance of the union meet-
ing by announcing the number that had attended. In this
regard, I find that the Respondent violated Section
8(a)(l) of the Act as alleged in the complaint.
Wimbish further testified that while in the office of
Bill Cruise, a second-line supervisor in the yarn spinning
department, on or about March 18, the date following a
union meeting, Cruise asked Wimbish what he had done
the night before. Although Wimbish had gone to the
union meeting, he advised Cruise that he had gone home
and gone to bed. Cruise, called by the Respondent, testi-
fied that about the time testified to by Wimbish he had
arranged a meeting between Wimbish and Section Super-
visor Bill Sue in yarn spinning, and had observed Wim-
bish in Allen's office waiting to see Sue. Cruise denied
asking anything about Wimbish's whereabouts the night
before, but claimed that he inquired about Wimbish's ap-
parent sunburn and Wimbish explained he had incurred it
while water skiing.
Finally, Wimbish testified that on March 21 he was
called to Cruise's office where they discussed Wimbish's
being swapped from Billy Allen's crew to Larry
Hewett's crew. During the course of the conversation,
Wimbish raised the subject of the Union, and advised
Cruise that he had been to the union meeting. Cruise's
response was that he knew Wimbish had. Wimbish then
went on to state that he told Cruise that he had talked to
a teacher at a local technical school regarding the Union
and that that teacher had said he did not think the Union
could do much for Du Pont employees because Du Pont
was such a big company, and all they had to do was to
close down and move elsewhere. Wimbish concluded by
saying that he really was not that "hepped up" on the
Union and Cruise ended the conversation by telling
Wimbish to keep him informed on what was going on.
Cruise recalled the conversation with Wimbish but
placed it around March 17 or 18, when Wimbish had
sought an interview with Cruise. He denied the specific
remarks attributed to him by Wimbish. Instead, Cruise
3 Hewett testified that he was aware of Wimbish's union support be·
cause of Wimbish's wearing union buttons and also because of "scuule-
bull conversation." Wimbish, in his testimony, denied that he ever wore
union but!ons.
stated that Wimbish had used the occasion to ask Cruise
his opinion about the Union. Cruise could recall no refer-
ence by Wimbish to any statements of a former teacher.
Cruise acknowledged that during the ~~onversation he
had told Wimbish to "communicate with his supervisor."
According to Cruise, this direction was simply an effort
to have the employees inform the supervisors of any
problems they were experiencing in order to improve the
relationship.
Wimbish's recall was not perfect, and he exhibited
some confusion as to the exact sequence of events in the
several days following the union meeting and the time
when he discussed the matter with his supervisor. Never·
theless, Wimbish impressed me as basically sincere in his
testimony, and I find him credible where his testimony
contradicts that of Cruise. Based on Wimbish's testimo-
ny, I conclude that Cruise's acknowledgment to Wimbish
of Wimbish's attendance at a union meeting was confir-
mation of the impression previously received by Wim-
bish from Hewett that the Respondent had the union ac-
tivities of its employees under surveillance. To this
extent, Cruise's remark to Wimbish constituted a further
violation of the Act. Cruise's request to Wimbish to keep
him informed about what was going on, in the context of
discussions regarding the Union, was clearly susceptible
to the interpretation that I find most probable, that
Cruise was seeking to have Wimbish report on the union
activities of other employees. Such a request, I find and
conclude, violates the Act. A request to report union ac-
tivity tends to cause employees to fear that such informa·
tion is sought by the company in order that it might dis-
courage those activities by discharging or engaging in
other reprisals against the employees supporting the
union. Performance, Inc., 208 NLRB 618, 624 (1974).
Crediting Wimbish's testimony that Cruise also asked
him around March 18 what he had done the night
before, I conclude that the question was a reference to
Wimbish's attendance at the union meeting. I further
conclude that it therefore constituted unlawful interroga-
tion.
Another incident of unlawful interrogation was attrib-
uted to Supervisor Cruise by a former employee, Donald
Eubanks. Eubanks testified that he was a union supporter
and wore a union button showing union support in the
plant in early 1980. On February 10, 1980, according to
Eubanks, he went into Cruise's office to obtain a wrench
needed to make some machine adjustments. Cruise noted
the button appearing on Eubanks' pocket and asked him
what it was. Eubanks replied that it was a union button
and further explained that it was a Steelworkers button.
Cruise then asked him when had he become a Steelwork-
ers member and why had he become a Steelworker.
Cruise in his testimony did not deny the conversations
and admitted that he had asked Eubanks about the
button and that a conversation concerning unions ensued.
Cruise did not specifically deny that he had asked Eu-
banks why he wanted the Union, and it may be reason-
ably inferred that such an inquiry was made since Cruise
admitted that Eubanks gave him the reason why he in
fact was supporting the Union. Accordingly, I credit Eu-
banks. I find, as alleged in the complaint, that Cruise's
I
l
I
l
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquiry of Eubanks violated Section 8(a)(l). PPG Indus-
tries, Inc., supra.
An unlawful threat of an unspecified reprisal for union
activity was attributed to First-Line Supervisor Darrell
Monroe of the petrochemical department by Harry Lee
Thomas, the alleged discriminatee in this case, about
whom more will be related later. Thomas, who had re·
ceived an unsatisfactory performance contact from the
Respondent on October 29, 1979, testified that, a week
following his receipt of the UPC, a friend and fellow em-
ployee, Phillip Baham, suggested to Thomas that he talk
to Monroe who was a personal friend of Thomas.
Thomas did telephone Monroe at his home and Monroe
described to Thomas a meeting he had attended involv-
ing 13 supervisors. Thomas testified that Monroe told
him that Thomas had been discussed at the meeting, and
the spokesman at the meeting, not identified on the
record herein, had stated that Thomas could have been
fired for what he had done, apparently a reference to
those matters involved in the UPC. Monroe and another
supervisor named Jerry Little asked why and they were
told to ask Second-Line Supervisor Claude Platt.
Monroe went on to relate to Thomas that the "spokes-
man" at the meeting had said that Thomas was a
"threat" because he tried to sue the Respondent for his
hernia operation in the summer of 1979, and that he was
also a threat because of his union activities. When
Monroe had stated at the meeting in response to the ref-
erence to union activities that he thought that it was an
employee's privilege to be involved with the Union, the
response from the spokesman was simply that he could
see that Monroe was "operator oriented."
Monroe, called by the Respondent, denied ever having
a telephone conversation with Thomas, and further
denied attending a meeting where Thomas and either his
union activities or his hernia (which was the basis for his
subsequent workmen's compensation claim against the
Respondent) was discussed. Monroe testified that
Thomas on only one occasion had asked him "in an indi·
rect manner" if supervision had held meeting about
Thomas. Monroe claimed that his response was that su-
pervision did not hold group meetings about any
person. 4
I find the testimony of Thomas credible, although
vague and at times conclusionary. Monroe appeared ill at
ease while testifying, and he was not corroborated by the
other supervisor, Jerry Little, who was alleged to have
been at the meeting when the comments were made. Ac-
cordingly, and also because the likelihood of the passing
of information beneficial to Thomas by Monroe was in-
creased by the longtime friendship which existed be-
tween the two, I credit Thomas' version over Monroe's.
I find that Monroe made the remarks attributed to him
by Thomas and I find and conclude that such remarks
conveyed to Thomas the message that his union activities
were considered to be a threat to the Respondent and,
accordingly, made him an object of retaliatory action.
These remarks of Monroe, I conclude, violated Section
• The Respondent concedes, however, that supervisory meetings are
held monthly to discuss safety, production, and personnel problems.
However, the group of supervisors is generally limited to sill. or seven.
8(a)(l) of the Act as a threat of unspecified reprisal, as
alleged in the complaint.
A final 8(a)(l) violation was attributed to the Respond-
ent on the basis of stipulated facts related to the insertion
of certain notices in the personnel files of four employ-
ees. Based on the stipulated facts, employees Harry
Thomas, Dorothy Hill, Eddie Riggins, and Jimmie Sell-
ers who were alleged as discriminatees in then-pending
unfair labor practice charges were called into the offices
of their respective supervisors on various dates in May
and were told that a specific notice which was shown to
them was being put into their personnel files. The no-
tices5 which were addressed to the respective employee's
file contained the following language, with the blank
space filled in with the appropriate case number:
The documents in this folder are being used in the
investigation of an Unfair Labor Practice
Charge------. No records are to be purged
from this file without prior approval of the Person-
nel Supervisor until further notified.
It was the testimony of the Respondent's former per-
sonnel supervisor, Delbert Horton, that the Respondent
followed a procedure whereby records concerning disci-
plinary contacts were kept in employees' personnel files
for a period up to 3 years but could be removed earlier
when the disciplinary action had achieved its purpose.
When the records of the contacts had served their pur-
pose they were destroyed by the supervisor involved in
the presence of the affected employee. According to
Horton, it was determined that those records pertaining
to employees involved in the unfair labor practice
charges should be preserved until the charges were dis-
posed of. Therefore, by letter dated May 9 to Supervi-
sors Woody Wayne, Larry Hewett, Bobby Black, and
Howard Stroupe, Horton advised the supervisors that
letters containing the language set forth above should be
placed in the employees' folders with their knowledge to
prevent accidental purging of original documents that
might be needed in litigation proceedings if such should
occur.
The General Counsel does not argue that it is an
unfair labor practice to preserve records for the purpose
of defending unfair labor practice charges. She does
argue, however, that by advising employees that the re-
cords which might otherwise be purged were being pre-
served, the Respondent's conduct was coercive and in-
terfered with the employees' freedom to engage in union
activities and to have their rights vindicated through the
filing of unfair labor practice charges. In this regard, the
General Counsel relies primarily on the fact that there
was no evidence that the affected employees were given
any assurances that records related to their disciplinary
status would not be continued past the time of their
normal duration. Thus, according to the General Coun-
sel, the employees being told that the records were in
effect "frozen" would reasonably conclude that the filing
of the charge in which they were involved would serve
to prolong the retention of disciplinary records beyond
• G.C. Exhs. IS, 16, 17, and 18.
E. I. DUPONT DE NEMOURS AND COMPANY, INC. 143
1 he time of their normal effectiveness. The Respondent,
'nt the other hand, argues that the decision to preserve
1 he records in no way affected any of the employees' dis-
ciplinary status. Moreover, the Respondent argues that,
,ince no employees testified regarding the notices, it
must be assumed that they did not feel threatened and
1 here was nothing within the notice per se which was
read to the employees which would tend to constitute a
threat.
Neither the General Counsel nor the Respondent cites
any Board authority for their respective arguments.
llowever, the General Counsel reminds by citing Seneca
Foods Corporation, 244 NLRB 558 (1979), that it is the
reasonable expectation of coercive effect on employees
rather than the actual effect which is determinative in es-
tablishing a violation of Section 8(a)(l) of the Act.
If it is lawful for the Respondent to retain the records
of employees involved in charges as conceded by the
General Counsel, it is difficult to perceive how it was
unlawful for the Respondent to advise the employees
that it was doing so. There is no evidence of any intent
to coerce the employees through the notices. And em-
ployees who are named as discriminatees in unfair labor
practice charges may reasonably anticipate that employ-
ers may defend against those charges and, in so doing,
may rely on employee records normally maintained by
the employer and even retaining such records beyond
their normal destruction or removal dates. Furthermore,
employees may well welcome assurances that their re-
cords which could support their claims of discrimination
would be preserved. Thus, the retention of records
during either the investigation or litigation stage of an
unfair labor practice charge is in the interest of both the
employer and the employee. In the instant case, there is
no evidence that any of the employees were adversely
affected by the retention of the records. Nor is there evi-
dence that the filing of the charge in fact resulted in the
retention of any records beyond the date they normally
would have been purged from the employees' files in
keeping with the Respondent's personnel policies. Final-
ly, and contrary to the contention of the General Coun-
sel that the notices to the employees' files earmarked
them as union activists and participants in unfair labor
practice charges, the notices related solely to specific
unfair labor practice cases and, while the duration of the
effectiveness of the notices was indefinite, it was clearly
related to the charges. Employees reading the notices
and hearing of them could reasonably conclude that such
notices were effective only during the pendency of the
charges. Under all the circumstances I conclude, con-
trary to the General Counsel's argument, that in advising
employees of the notices inserted in their files the Re-
spondent did not violate Section 8(a)(l) of the Act.
C. The 8(a)(3) Allegations
Harry Lee Thomas had been employed by the Re-
spondent in its DMT department, petrochemical division,
for about 6 years prior to the hearing herein. Thomas
testified that, prior to the disciplinary actions taken by
the Respondent which are the subject of the unfair labor
practice complaint herein, he had had no prior discipline
from the Respondent. He began his involvement with the
union activity with the Boilermakers union sometime in
1978 after his then supervisor, Fred West, in a discussion
with him about the Union, stated that the Respondent
thought that Thomas was a union organizer. 6 Apparent-
ly incensed by the false accusation Thomas immediately
thereafter went out and obtained a button identifying
himself as a Boilermakers supporter. Thomas testified
that on March 21, 1979, in a state of the business meeting
normally held between managers and employees at the
plant, a plant manager whose name he could not recall
made a comment about union organizers which Thomas
apparently considered to be derogatory. Thomas raised
an objection to it and identified himself as a union orga-
nizer, apparently referring to his organizational efforts
with the Boilermakers, and commented that the plant
manager should have seen Thomas wearing union mate-
rial. The unidentified plant manager responded that he
was just speaking his point of view and Thomas replied
that he was speaking his. The manager stated "no hard
feelings" and Thomas replied by repeating the phrase.
A few days later, on March 24, Thomas received an
employee performance review (EPR) from his then im-
mediate first-line supervisor, Fred West, which was ap-
proved by his shift supervisor, Claude Platt, rating
Thomas as needing improvement in the areas of house-
keeping, productivity, adaptability, working with super-
vision, and job interest initiative. Specifically, the review
stated that Thomas "does not cooperate with supervi-
sors. At times he is very reluctant." 7 Thomas objected to
the conclusions in the EPR and related that he had a
subsequent conversation with West about it at some un-
specified later point in time. Thomas further testified,
and West in his testimony denied, that Thomas com-
plained to West that the EPR did not even "sound" like
West, and West had replied that he did not agree with
the EPR and that he would give Thomas another one 2
months later, but he could not do so at that point be-
cause the original EPR was "up the hall." While West in
his testimony admitted that he had offered to reevaluate
Thomas after I or 2 months if Thomas thought the EPR
was unfair, he claims that he made that comment at the
time that Thomas received the EPR, not sometime later,
and Thomas rejected the offer. 8
Apparently, as a result of the unfavorable EPR
Thomas became involved in the renewed Steelworkers
campaign on March 27, 1979. He became a member of
the Dupont Organizing Committee (DOC) and wore
union buttons and insignia on his jacket. He was conced-
ed by fellow employees on his shift to be a most active
union supporter. The Respondent concedes knowledge
of Thomas' union advocacy.
6 This testimony, first related by Thomas during rebuttal, was not spe-
cifically contradicted by West and is credited.
7 Thomas' last preceding employee performance review in 1978 had
also rated him as needing improvement in housekeeping and productivity.
8 While the General Counsel urge~ that the EPR was discriminatory.
no violation of the Act can be based on the EPR because it was time-
barred under Sec. lO(b) of the Act. However, evidence on the EPR was
allowed for background purposes renecting on the Respondent's altitudes
toward responsibilities under the Act. Pandair Freight, Inc., 253 NLRB
973 (1980).
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 31, 1979, a few minutes after pulling on a
chain to release a valve while at work, Thomas felt pain
in his groin area and sought medical attention at the
plant. Thomas' complaint was eventually diagnosed as a
hernia and he underwent a hernia operation on June 13,
1979. Upon submitting claims for his medical expenses,
Thomas discovered that the insurance carrier refused to
pay the claim because Thomas had indicated that his
injury was work related. Thomas took the matter back
to the Respondent and the Respondent's medical doctor
filled out the appropriate forms and advised the safety
department that Thomas was not hurt on the job. The
doctor explained, but not to Thomas' satisfaction, that
there were several ways that one might encounter a
hernia. 9 The insurance carrier ultimately paid Thomas'
medical bills. However, having been offended by the Re-
spondent's claim that the injury was not work related,
Thomas filed a workmen's compensation suit against the
Respondent. That matter proceeded to hearing despite
the Respondent's claim that there was no need for it in
view of the fact that Thomas' medical bills had been
paid. There was an award in Thomas' favor, dated De-
cember 14, 1979. Shortly after the award, and still in De-
cember, Thomas submitted to the Respondent an addi-
tional unpaid medical bill growing out of his injury and
was told by Shift Supervisor Claude Platt that Thomas
had not been hurt at the plant and the Respondent was
not going to pay any bills. 1 0 Platt persisted in this posi-
tion even after Thomas showed him a "letter" from the
State Industrial Commission regarding the workmen's
compensation matter. Thomas concluded his discussion
with Platt on the matter by stating that he would take it
to his attorney and let her handle it. The next day, how-
ever, Platt called Thomas back into his office and report-
ed to him that the Respondent would pay the bills.
During the pendency of his workmen's compensation
claim, on October 29, 1979, Thomas received an unsatis-
factory performance contact from his then supervisor,
Lanny Nunn. The UPC, which the General Counsel
argues was discriminatory and in violation of Section
8(a)(l) and (3) of the Act, was an initial step in the Re-
spondent's progressive disciplinary procedures. The UPC
was based on three separate events which had occurred
within the preceding 30 days. Such events must be relat-
ed in some detail.
The first offense referred to in the UPC occurred on
September 30, 1979, and involved an alleged demonstra-
tion of Thomas' lack of respect for supervisory authority
and failure to cooperate with two members of supervi-
sion at the truck shed. There is little dispute with respect
to the basic facts of what occurred. One of Thomas' job
functions was to load certain tank trucks with the Re-
spondent's molten product. It is undisputed that the load-
ing process requires the operators to wear protective
clothing in view of the heat or corrosiveness of the prod-
• The Respondent rated Thomas· injury as nonatlributable; i.e., it hap-
pened while at work but was not work related. This was based on the
fact that Thomas' pain did not occur until sometime after the assertion of
physical energy which Thomas claimed caused it.
10 Plat! in his testimony herein related that on the day of his injury
Thomas had told him that the injury was "something he had always
had." Thomas denied it in his testimony. I credit Thomas.
uct. There is no dispute that the practice had been that if
a truck came in with a red tag on it signifying that it
needed repairs it was not to be loaded. There is a dispute
with respect to whether the procedure was automatically
to send the truck back to the terminal in view of the red
tag. In any event, on September 30, Thomas, upon ob-
serving a truck with a red tag on it, returned to the truck
shed and announced that the truck should be sent back
to the terminal. First-Line Supervisor Bobby Black hap-
pened to be in the truck shed at that particular point in
time, although he did not have primary responsibility for
the loading area, and upon hearing Thomas' claim went
outside to observe the truck. Black came back into the
truck shed and told Thomas to connect up the truck.
Thomas tried to contact his immediate supervisor, Lanny
Nunn, about the matter but there was no response to
Nunn's page. Thereafter, according to Thomas' testimo-
ny, he contacted his second-line supervisor, Platt, who
told him to send the truck back to the terminal. Thomas,
in the presence of Black, told the truckdriver what Platt
had said, and thereafter Black called Platt and, after
completing the call, told Thomas to hold the driver.
Thereafter, Platt came to the truck shed and he and
Black instructed Thomas to hook up the truck. Thomas
went outside in his protective clothing and hooked up
the steam hose to the truck as the first step in the loading
procedure, after having been assured by Platt that Platt
would assume all responsibility. After hooking up the
steam, Thomas returned to the truck shed and attempted
to place a telephone call to the then DMT plant superin·
tendent, Michael F. Sujka, while Platt and Black went
outside to check the truck without any protective gear
on. Thomas explained in his testimony that he was at-
tempting to call Sujka because Platt and Black were vio-
lating safety procedures by going into the truck bay area
without protective equipment on and with the steam
hose attached. According to Thomas, no employee was
to enter the bay area without safety equipment at any
time that any hose, product or steam, was attached to
the truck. Upon the return of Black and Platt to the
truck shed they told Thomas to let the truck go back to
the terminal.
The versions of Platt and Black are slightly different
from that of Thomas. They related in their testimony
that a red tag on a truck indicated that there was some-
thing wrong with it and that the product should not be
loaded, but the truck was not automatically returned to
the terminal. If there was a mechanical problem which
could be remedied in the bay area without sending the
truck back to the terminal, then such a repair could be
effectuated and the truck loaded. In this instance Black
said that upon his first observation of the truck he dis-
covered a valve with a bent handle which prevented it
from closing. Black bent the valve handle so that the
valve could close and, thinking that he had remedied the
problem, went back to the truck shed and instructed
Thomas to hook up the steam line so it could be checked
out. Thomas refused, claiming it was against manual
instructions. Black said they got out the manual and read
the provision regarding the loading of trucks, and it did
not provide that the truck had to be sent back automati-
E. I. DUPONT DE NEMOURS AND COMPANY, INC. 145
cally. It was then that Thomas attempted to call his su-
pervisor and finally talked to Platt. Thereafter, Black
talked to Platt and asked Platt to come to the truck shed,
which he did. The testimony of Black and Platt is in
agreement that after Black showed Platt what the appar-
ent problem was Thomas was instructed to hook up the
steam line so the matter could be checked out. It is con-
ceded by Platt and Black that they did not wear a "hot
suit" when they went back out to check the truck while
the steam line was hooked up, but both contend that
they were not required to wear a hot suit under the then-
prevailing safety procedures. When it was ascertained
that the truck had other problems which could not be re-
medied there, Thomas was instructed to unhook the
steam hose and send the truck back to the terminal. It
was then that Thomas accused them of violating safety
rules and attempted to obtain the number of Sujka to
report the matter. 11 Platt testified that he refused to give
Thomas the telephone number for Sujka because he was
not going to allow Thomas to call anybody at 5 a.m., but
added that Thomas could use the "open door policy"
and report the matter to the safety superintendent at a
later time. Nevertheless, when Platt went to Larry
Nunn's office a short while later he found Thomas still
trying to secure the telephone number of Sujka, so Platt
instructed Nunn to get Thomas back on the job.
The UPC referred to the truck shed incident of Sep-
tember 30 as demonstrating a Jack of respect on the part
of Thomas to supervisory authority and a failure to co-
operate with members of supervision at the truck shed. 12
The second incident referred to in the UPC involved a
matter which occurred on October 18, 1979. On that
date, according to the UPC, Thomas was contacted by a
safety supervisor for Daniel Construction Company, a
maintenance and building contractor at the site, in regard
to the cleanup of an oil spill on the firing aisle floor.
That supervisor, Larry Dillon, testified in this proceed-
ing for the Respondent that he initially contacted
Thomas, the first Du Pont employee he observed after
finding the spill, and asked Thomas, whom he did not
know at the time, who he should contact regarding the
oil spill. Thomas, according to Dillon, indicated that he
was aware of the spill and that he would be taking care
of it. Approximately 30 minutes later, however, Thomas
1 1 The safety rules pertinent to this matter were revised on November
2, 1979, and the old rules destroyed to avoid confusion. The Respond-
ent"s witnesses disagreed on just how the rules were revised, but the re-
vised rules were placed in evidence, G.C. Exh. 20. While the rules do not
reflect how they were revised they do show which ones were revised.
Accordingly, I am persuaded that Thomas" testimony that the rules re-
quired the wearing of "'hot suits" in the bay area while any hose was
connected to the truck was correct since the revised rules of November 2
which set forth this requirement do not reflect that this rule was in fact
revised. On the other hand, I am also persuaded that the old rule regard-
ing red-tagged trucks prohibited only their loading, not the connection of
a steam hose only to the truck. The revised rules on this matter. marked
as a revision, specifically provide for the procedure which Platt and
Black followed on September 30 in not automatically sending the truck
back to the terminal.
12 Lanny Nunn gave Thomas a verbal contact on October 5 regarding
the episode in the truck shed, admonishing Thomas to acknowledge the
authority of supervision to make decisions for them even if it related to
handling a job "'or condition"" in a way it had not been handled in the
past, except in instances which would put employees in an unsafe work-
ing condition. Resp. Exh. 10.
saw Dillon, approached him, and asked who Dillon was.
Dillon explained that he was Daniel's safety supervisor.
Thomas appeared irritated and angry and told Dillon
that if Dillon ever had to talk to Thomas again to take
the 20 cents that Thomas had in his hand and present it
to Dillon and to call somebody who gave a "f--k."
Shortly thereafter, Dillon reported the matter to the Re-
spondent's supervision.
Thomas' version of the matter differs from that of
Dillon only in minor respects. Thus, Thomas testified
that he did not know who Dillon was at the time Dillon
first advised him of the oil spill, and he did not respond
to Dillon at that time. Subsequently, he learned that
Dillon worked for Daniel, so he approached Dillon, ad-
vised Dillon that he worked for Du Pont and told Dillon
that if Dillon saw anything in his area to contact
Thomas' supervisor and if he could not find Thomas' su-
pervisor to take 20 cents and call somebody. Thomas did
not specifically deny the vulgarity attributed to him by
Dillon. 13 Moreover, when he was chastised about the
matter by Nunn subsequently on the same day, he agreed
with Nunn that it should not happen again.
The third matter complained of in the UPC occurred a
day or two before the UPC was issued when Thomas
was admittedly asked to read and initial some material
relating to revisions in the safety manuals and proce-
dures. In this regard, Thomas acknowledged in his testi-
mony that about October 28 he had been told by Nunn
to read and sign some papers. When he went to the con-
trol room, Supervisor Bobby Black gave him the forms,
"Standard Practice and Procedure Revisions," to read
and Thomas took the papers over to a desk; Thomas sat
down and read them. He had a question on one of the
forms relative to a standard practices revision. He related
that he asked some other employees about the matter he
had a question on but was unable to get satisfactory an-
swers. He thereafter sought out his supervisor, Nunn, but
could not find him. He went home before finding a su-
pervisor and consequently he did not sign the forms.
Before he had asked his question on the next day of
work, he was called into the office and given his UPC
which cited his failure to sign the forms.
Platt was present in Nunn's office when the UPC was
given to Thomas. The record shows no argument by
Thomas with respect to the UPC although Thomas did
write on the UPC that he disapproved of it. Thomas did
not attempt to grieve his UPC until about January 1980
at which time he initiated the grievance procedure and
went through three steps of that procedure involving
Platt Senior Supervisor Godfrey L. Little, and Superin-
tendent Sujka. All found merit to the UPC and were
critical of Thomas on a number of additional factors.
Only at the third step did Thomas claim that his UPC
was based on his support for the Union; however, this
claim, made to Sujka, was found to be without merit by
the Respondent. Thomas failed to proceed further with
13 Dillon's testimony was logical and he impressed me as being clearly
disinterested. I credit his version to the extent it conflicts with that of
Thomas. In either version I would find that Thomas was disrespectful
and impudent to Dillon. The General Counsel in her brief concedes that
Thomas was at fault in the matter.
I '
'I
I.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the grievance procedure admittedly because the Re-
spondent was bringing up other matters and he decided
that it would be futile to continue.
Pursuant to the Respondent's procedures, Thomas was
given a first followup to his UPC on December 13, 1979,
by Nunn. In this follow up Nunn found no fault with
Thomas' work performance, but claimed that Thomas
continued to attempt "to discredit supervision by making
unsolicited statements on some of the general information
sheets" employees were asked to read. That was a refer-
ence to a communication distributed to supervision by
Little congratulating the employees on the "excellent"
rating achieved by the Respondent in its occupational
health programs. This communication had been placed
where the employees could read it, and Thomas had
marked at the bottom of the communication: "I was not
a part of this because I got hurt on the job. Harry
Thomas." Thomas admittedly had entered his comment
on the communication because he had objected to the
"hassle" that he had received from the Respondent con-
cerning his workmen's compensation claim and the Re-
spondent's claim that he had not been hurt on the job. 14
Thomas received his second UPC followup review on
January 10 from Nunn. Nunn again rated Thomas as sat-
isfactory in job performance but again complained that
he was deviating from the intent of his UPC writeup be-
cause he was continuing to display reluctance to sign
documents put out for employees to read and sign.
On April 3 Thomas received his third UPC followup
from Nunn and was again rated as satisfactory in job
performance. Nunn related in the followup that Thomas
had been more cooperative with his supervisors than in
prior periods and that a positive trend should continue to
maintain his satisfactory level. However, Nunn noted
that Thomas had refused acceptance of safety awards
which were given for safety programs, and those demon-
strated some "negative attitudes" toward the Company's
safety programs. Nunn's followup concluded that it was
up to Thomas whether to accept safety awards, but the
rejection of the awards did demonstrate a "negative atti-
tude" on Thomas' part by not participating.
On April 19, only a few days after his third UPC fol-
lowup, then Supervisor Ronny Black put Thomas on
probation, the next step in the progressive disciplinary
action leading to discharge. In the "probation contact"
under the Respondent's procedures Black reviewed
Thomas' conduct including those matters which had re-
sulted in his receipt of the UPC as well as referring to
additional matters and the events after April 16 which
more immediately resulted in Thomas' being placed on
probation. Such additional matters included an occur-
rence in April 197915 involving then supervisory trainee
Black, who had approached Thomas with a list of items
from a safety audit which required correcting. Thomas
had refused to accept the list and referred Black to his
14 The Respondent's interest in concluding that Thomas' injury in the
summer of 1979 was not job related is consistent with its desire to pre-
serve its perfect safety record renected by the absence of any workmen's
compensation claims prior to that of Thomas'.
•• While the April 1979 incident was not referred to in the UPC, it
was mentioned in the responses of certain supervisors to Thomas' griev-
ance on the UPC. Moreover, Platt testified without contradiction that it
was mentioned to Thomas at the time he received the UPC.
supervisor, West. It was thereafter necessary for West
personally to take the lists to Thomas to have him cor-
rect them. This incident was admitted by Thomas, but he
claimed, however, that he had not been chastised about
the incident at the time.
A second incident mentioned in the probation contact
and not previously mentioned in the UPC occurred on
June 28, 1979, while Thomas was on disability leave re-
cuperating from his hernia operation. On that occasion
Supervisor Platt telephoned Thomas regarding the re-
scheduling of Thomas' vacation as a result of a change
of operation to a 12-hour shift. Black's probationary
memo related (and was supported by the testimony of
Platt herein) that Thomas had told Platt to do what he
"damned" pleased with respect to the vacation schedul-
ing. The probationary report concluded that the incident
demonstrated Thomas' continued lack of cooperation
with supervision. Thomas did not deny the incident in
his testimony herein and admitted he had been short
with Platt and had hung up on him. However, he did
deny the use of profanity in talking with Platt.
Black continued, stating that on September 14 Thomas
had completed five job cycle checks, but failed to sign
the job cycle checklist in the space provided as required
under established practices. 16 While Thomas did not
deny that he did not sign the job cycle checks in ques-
tion, he claimed in his testimony that he had not been
criticized before for failing to sign job cycle checks.
With respect to the April 16 matter which directly re-
sulted in the UPC, Black, on the probation contact and
in his testimony, related that Thomas had been given
two job cycle checks to be completed. On one of the
lists Thomas had noted that he did not understand it, so
Black explained it to him to the point that Thomas relat·
ed he understood. Thereafter, Thomas filled out the form
on the job cycle check (job A-20), but at the bottom of
the checksheet Thomas wrote, "I had to fill out this
form again because I had a comment on it." On the
second job cycle check (A-16) Thomas had written at
the bottom of the page that he did not perform the job
and instead of signing it in the place required he initialed
it at the bottom of the page. When Black asked if
Thomas understood the standard practice, Thomas lied
that he did but that he had not performed the job. Black
then took Thomas out to the job, found a problem coin·
ciding with that treated in the job cycle checklist and
had Thomas do the job. Black then asked Thomas to
complete the job cycle checklist. Thomas did so upon re·
turning to the office, but at the bottom of the checklist
wrote, "Bobby Black did not have on protective equip-
ment while showing operator how to perform this job."
There is no dispute that Black did not have on safety
equipment at the time while Thomas did so. 17 However,
16 A job cycle checklist was a procedure initiated by the Respondent
to provide an auditable record indicating that an operator had been ad·
vised of certain required standard practices connected with a particular
job or task and understood them.
17 Black claimed in his testimony that he was not required to have on
any safety equipment under the circumstances since he was far enough
away from the work Thomas was doing. Safety rules required safety
equipment (gloves and goggles) if an individual was within IS feet of the
Continued
E. I. DUPONT DE NEMOURS AND COMPANY, INC. 147
Black pointed out that he was not performing the j?b
and only was instructing Thomas verbally from a dis-
tance on how to do it at the time. Black concluded that
Thomas' performance in this regard further indicated a
complete lack of respect for supervisory authority and a
failure on Thomas' part to cooperate with supervision.
Following Thomas' being placed on probation, the Re·
spondent conducted monthly interviews or . followups
with Thomas concerning his performance while on pro·
bationary status. The first three such followups point out
no problems with Thomas' performance. The fourth fol·
lowup on August 28 found Thomas' performance contin-
ued to be satisfactory and noted that he had completed
all self job cycle checks completely and correctly and
had reviewed and signed standard practices and safety
rule changes. However, the followup, prepared by West,
related an incident on August 3 undenied by Thomas,
when Thomas came to Black's office and in the presence
of West asked to see the job cycle checksheet that he
had performed on April 16 on the bottom of which he
had referred to Black's failure to wear safety equipment.
Thomas, according to the testimony of West corroborat-
ed by that of Black, wanted to add to his comment on
the job cycle list the comment that he was placed <:n
probation because of this added comment. Black said
that was not all of the story and refused to allow
Thomas to make any added comments on the form.
Black did, however, offer to show him the probation
contact itself reflecting exactly why Thomas had been
put on probation, but Thomas declined, stating that they
would "all read it together" later.
On his fifth probation followup dated September 29
Thomas was rated satisfactory by West with no adverse
comments.
Contentions and Conclusions
The General Counsel contends that Thomas' work
performance had not attracted critical attention until
after he became involved in union activities in 1978 and
more particularly when he received his EPR in March
1979 reflecting that he needed improvement in certain
areas shortly after a meeting in which he had expressed
his union inclinations. The UPC which Thomas received
on October 29, 1979, was, according to the General
Counsel's argument, discriminatorily motivated and
based on Thomas' union activities. Moreover, the Gener-
al Counsel contends that both Thomas' workmen's com-
pensation claim and his insistence upon adherence to
safety practices were activities protected under the Act,
citing Walter S. Johnson Building Co., Inc., 209 NLRB
428 (1974), and Krispy Kreme Doughnut Corp., 245
NLRB 1053 (1979), enforcement denied 635 F.2d 304
(4th Cir. 1980). Thomas' actions in these areas also pro-
voked the October 29 UPC, the General Counsel con-
tends, and thereby made it unlawful as well as the April
probation contact since it was the direct result of the
UPC. More particularly, with respect to the argument
that the disciplinary action with respect to Thomas was
work. While Black claimed he was more than 15 feet away, I am per·
suaded that Thoma.' believed Black was sufficiently close to require
safety equipment.
based on his insistence upon safety practices, the General
Counsel points to the undisputed testimony that Thomas
had complained to then Superintendent Hale about a
year or year and a half prior to the hearing about Super-
visor Platt's performing a task without required safety
gear on. In this regard Thomas testified that Hale subse-
quently reported to Thomas that he had discussed the
matter with Platt and Platt had admitted that he had
been in error and had related that it would not happen
again. Hale had then, according to Thomas, requested
Thomas to report safety violations whenever he ob-
served them. Still with respect to the contention that
Thomas' safety complaints were an element in his UPC,
Thomas testified in September 1979 he had complained
to Superintendent Sujka about Platt's direction to an em-
ployee to perform a task in a roped or barricaded "no
entry" area. Thomas testified that he initially had been
instructed to go behind the barricade ·but had refused,
and the supervisor directed someone else to do so. While
Superintendent Sujka acknowledged in his testimony that
he had had a discussion with Thomas in September 1979
about barricading procedures and practices, he neither
admitted nor denied Thomas' complaints about Platt at
that meeting.
The Respondent in its brief denied that the UPC
issued to Thomas and his subsequent placement on pro-
bation was in any way related to either his union activi-
ty, his filing of an unemployment compensation claim, or
his complaints about safety violations. With respect to
the contention that Thomas' disciplinary action was
based on union considerations, the Respondent contend-
ed that Thomas' EPR in March 1979, which pointed out
for the first time Thomas' inclination not to cooperate
with supervision, Thomas had admittedly not begun his
activity on behalf of the Union herein. Furthermore, in
connection with the claim that the disciplinary action
was based on Thomas' workmen's compensation claim,
the Respondent points out that Thomas' claim was non-
tabulatable and not work related. Notwithstanding the
workmen's compensation claim or award, the injury had
not resulted in any disbarment from safety awards which
would serve to provoke retaliatory action against
Thomas. The Respondent points out the fact that
Thomas' initial claim with respect to workmen's compen-
sation was made more than 3 months after the initial un-
complimentary EPR and more than 3 to 4 months prior
to the time of Thomas' UPC.
In answer to the argument that Thomas' disciplinary
action was based on his safety complaints, the Respond-
ent contends that Thomas' activity in this regard was not
a protected activity since he was acting as an individual
and that at no time did he actually inform the Respond-
ent that he was representing the views of other employ-
ees. According to the Respondent's brief, various circuit
courts of appeals have held such safety complaints not to
be protected concerted activity under the Act, citing Jim
Causley Pontiac, Division Jim Causley, Inc., 620 F.2d 122
(6th Cir. 1980), remanding 232 NLRB 125 (1977);
N.L.R.B. v. Bighorn Beverage, 614 F.2d 1238 (9th Cir.
1980); Krispy Kreme Doughnut Corp., supra. Finally, the
Respondent contends that even if there were a mixture
j:
r
I
I
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of legitimate and unlawful reasons the record fully sub-
stantiates that the same action would have been taken
against Thomas in the absence of his protected conduct.
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980).
The timing of the issuance of the EPR to Thomas on
March 24, 1979, within 3 days after his involvement in
the employee meeting with supervision wherein Thomas
emphasized his union sympathies suggests rather clearly
that the derogatory comments in the EPR in areas of
Thomas' performance not previously criticized were
based on union considerations. Moreover, since EPRs
were not issued on a fixed and rigid schedule, issuance of
an EPR on Thomas at that particular time renders fur-
ther suspect the Respondent's bona fides in the EPR.
While Thomas had received a prior EPR in 1978 from
West noting that he needed improvement in certain
areas, Thomas had not been chastised therein for not co-
operating with supervisors as he was in the 1979 EPR.
Moreover, West was vague in his testimony as to specif-
ic instances relied on to substantiate his claim as to
Thomas' uncooperative nature prior to the 1979 EPR.
West generalized and referred to the "problem" with
Thomas as a failure of Thomas to communicate with
Second-Line Supervisor Platt, but no specific instances
of this failure to communicate were noted. 18 In view of
this lack of specificity, I credit Thomas' testimony to the
effect he had not been previously warned regarding his
lack of cooperation. For the same reason I credit his tes-
timony over that of West to the effect that West told
Thomas that he was not really in agreement with the
EPR but could do nothing about it since it was "up the
hall." Under these circumstances, and considering the
union animus demonstrated by the Respondent by the
violations of Section 8(a)(l) previously found herein, a
strong inference is raised that the derogatory comments
in Thomas' 1979 EPR particularly with respect to his
"negative" attitude and "lack of cooperation" with su-
pervision were, at least in part, responsive to Thomas'
announcement of his strong union sympathies 3 days ear-
lier.
The inference that the unsatisfactory EPR resulted
from union considerations, coupled with the Respond-
ent's demonstrated union animus and Thomas' credited
testimony regarding Monroe's statement that the Re-
spondent considered Thomas a threat in part because of
his union activities, constitutes a prima facie showing that
the UPC issued Thomas on October 29, 1979, and the
probation contact of April 16 which flowed from it were
discriminatorily motivated. Such a showing serves to
shift to the Respondent the burden of demonstrating that
the same action would have taken place even in the ab-
sence of Thomas' union activities. Wright Line, a Division
of Wright Line, Inc., supra.
I conclude that the Respondent has satisfied its burden
in this regard. In so concluding I note that Thomas'
union activities were well known to the Respondent for
18 In justifying the EPR to Assistant Superintendent 0. M. Ebra-Lima
in a memo in April 1979 (Resp. Exh. 6), West did not refer to any com-
munication problem. The only incident mentioned in the memo possibly
relating to Thomas' lack of cooperation was one which occurred after
the EPR was issued.
more than 6 months prior to the issuance of the UPC. In
the meantime, Thomas in June 1979, when contacted by
Platt regarding vacation schedules, had clearly demon-
strated his disrespect for Platt by discourteously hanging
up the telephone on Platt. Yet this act had not drawn
any disciplinary action. Nor had there been any disciplin-
ary action taken in April I 979 when Thomas defiantly
refused a work assignment from the then supervisory
trainee Black thereby necessitating West's direct involve-
ment in the assignment. The failure to discipline Thomas
for these incidents in spite of knowledge of his union ac-
tivity further undermines a conclusion that an effort was
made to find sufficient fault with his work to provide a
basis for discriminatory discipline.
The September 30, 1979, incident at the truck shed
which was relied on by the Respondent in the UPC re-
quires close examination. The incident very clearly re-
veals Thomas' acquaintance with the safety rules, but it
also demonstrates Thomas' argumentativeness and his
willingness to challenge the authority and discretion of
his superiors. While Thomas' willingness to question his
supervisors on application of safety rules cannot be seri-
ously faulted, his conduct in the truck shed indicated a
desire to irritate, antagonize, and embarrass both Platt
and Black. Although, as I have previously found,
Thomas was correct in his position on the rules regard-
ing the wearing of "hot suits" in the bay area anytime
any hoses were connected to the trucks, he did not
remind Platt and Black of this until after they had
breached the rule. Moreover, after any potential danger
had passed, either with respect to the connecting of a
steam hose to the truck or to the presence of Platt or
Black in the bay area without "hot suits," Thomas made
a determined effort in the early morning hours to tele-
phonically report the incident to the superintendent at
his home. Such defiance of supervision in the absence of
showing of any danger to himself or any other employ-
ee, I conclude, provided a legitimate cause for Thomas'
discipline. Again, however, there was no rush to disci-
plinary action despite Thomas' union activity.
The incident with Dillon, Daniel's safety supervisor,
likewise provided the Respondent with a clear opportu-
nity to discipline Thomas for Thomas was without doubt
at fault in the encounter as the General Counsel con-
cedes. Yet it brought about only a mild oral rebuke from
Supervisor Nunn, an unlikely response if the Respondent
was indeed seeking a way to retaliate against Thomas for
his union activities.
It was not until Thomas failed to sign the standard
practice revisions on or about October 28, 1979, that the
Respondent acted to give Thomas the UPC. With re-
spect to his failure to sign those revisions, Thomas ad-
mitted that he had been specifically told by Nunn to read
and sign the revisions. Thomas sought to excuse himself
for failing to sign the revisions on the basis that he had a
question about one of them. Although I have found
Thomas generally credible, I cannot accept and do not
credit his excuse for failing to sign the revisions, for
there were three forms or sheets to be either signed or
initialed. 19 If a question precluded his signing one of
•• Resp. Exhs. 12(a), (b), and (c).
E. I. DUPONT DE NEMOURS AND COMPANY, INC. 149
them, it would not have excused his failure to sign the
others. Accordingly, I find Thomas' failure to sign a
single sheet signifying that he had read the revisions as
directed was willful. Whatever the past practice had
been with respect to signing, it is clear that in this in-
stance Thomas had specific instructions to sign. 20 I find
and conclude that his failure to sign the revisions, when
coupled with the other grounds, provided a legitimate
basis for the UPC and that Thomas would have received
the UPC regardless of whether the Respondent consid-
ered him a threat because of his union activity. Accord-
ingly, I find no violation of Section 8(a)(3) of the Act in
Thomas' UPC. It follows that since the UPC was lawful,
and because of the absence of independent evidence
showing that he was put on probation on April 16 for his
union activity, I find that Thomas was not put on proba-
tion for such activities.
Turning to the contention that Thomas' UPC and pro·
bation contact were predicated on his safety complaints,
it must first be observed that applicable Board law holds
that employee complaints regarding the safety of work-
ing conditions is a protected activity where the com-
plaint is of moment to all employees. See, e.g., Diagnostic
Center Hospital Corp. of Texas, 228 NLRB 1215 (1977);
Alleulia Cushion Co., Inc., 221 NLRB 999 (1975); Walter
S. Johnson Building Co., Inc., supra. 21 But see N.L.R.B.
v. Bighorn Beverage. supra.
As the Board said in Diagnostic Center Hospital Corp.,
supra at 12 I 7, interpreting lv!ushroom Transportation
Company, Inc. v. N.L.R.B., 330 F.2d 683 (3d Cir. 1964):
A correct reading of the case is that activity will be
deemed concerted in nature if it relates to a matter
of common concern and this common concern will
be found with respect to violations of a safety stat-
ute which created a general hazard for employees.
On the other hand, where a single employee's action
with respect to complaints to his employer regarding
working conditions is shown to be based on the employ-
ee's own personal interest or for his own personal gratifi-
cation or reward, it may not be protected. Northeastern
Dye Works, Inc., 203 NLRB 1222 (1973). Motive of the
employee is thus critical to the determination of whether
the employee's voicing of a working conditions com-
plaint is concerted and protected. Thus, if an employee
raises a complaint, even one regarding safety, in bad faith
or in order to harass an employer rather than to improve
working conditions, the employee risks loss of protection
under the Act.
In the instant case it is undisputed that Thomas had
raised a number of complaints regarding violations of the
Respondent's safety rules by supervisors. Thus, Thomas
had complained to Superintendent Hall sometime prior
20 All the other employees on Thomas' shift signed or initialed all
three of the cover sheets. This included employee Phil Baham who testi-
fied at the hearing that he had failed to sign job cycle checklists previ-
ously without being disciplined therefor, but his testimony did not extend
to the failure to sign standard practice and procedure revisions.
21 See also T & T Industries, Inc .. 235 NLRB 517, 520 (1978), and Erie
Strayer Compa11y. 213 NLRB J44 (1974), where the safety complaints al-
though voiced by an individual were prorected because they related to
provisions of an applicable collective-bargaining agreement.
to August 1979 about Platt's performing a task without
safety equipment on. The Respondent does not deny that
Supervisor Platt breached safety rules on this occasion.
But there was no showing that Platt thereby endangered
any one other than himself. Moreover, while Thomas
had observed the violation he had not called it to the at-
tention of Platt before utilizing the Respondent's "open
door" policy to complain to Hall.
Thomas also accused Platt and Black of a safety rule
violation by entering the truck bay area without "hot
suits" when a hose was connected to a truck. But
Thomas even though present did not remind either su-
pervisor of any "hot suit" requirement prior to the time
they went into the bay area, and raised the point only
after they came back into the truck shed. Here again no
employees, including Thomas, were shown to have been
endangered by the rule violation. This incident, it ap-
pears and I conclude, demonstrates that Thomas was
more intent on "hassling" his supervisors rather than ad-
vancing safety concerns common to employees.
The incident of April 16 with Black further reflects
Thomas' intent with respect to his safety complaints.
While he considered Black's standing within 15 feet of
him during Thomas' performance of the job cycle check
to be a breach of safety rules, Thomas said nothing to
Black until the task had been completed and the two had
returned to Black's office where Thomas wrote out the
alleged violation on the bottom of the job cycle check
form. Clearly, Thomas in this incident sought to irritate
and antagonize Black. 22 As in the other two situations
discussed above, the April 16 incident did not involve
danger to either Thomas or to any nonsupervisory em-
ployee.
Considering the foregoing, I conclude that Thomas in
making those complaints regarding safety violations
which were referred to in his UPC and his subsequent
probation contact was not engaged in protected activity
under the Act. Rather, I conclude on the credited evi-
dence and my sense of the record that Thomas, notwith·
standing his general safety awareness and familiarity with
safety rules, was utilizing the rules and breaches thereof
to harass his supervisors in retaliation for the harassment
he felt he received as a result of his workmen's compen-
sation claim. Accordingly, I conclude that the Respond·
ent's reliance on Thomas' safety complaints as a factor in
giving him a UPC or putting him on probation did not
constitute a violation of the Act. 2 3
•• Thomas' reluctance to sign the job cycle sheet and his further effort
to irritate Black on this occasion are !>hown by Thomas signing the job
cycle check with a signature having no similarity to that of his normal
signature. Comparison of Thomas' signature on his 1978 EPR (G.C. Exh.
3) and 1979 UPC (G.C. Exh. 5) reveals no similarity with that of the
April 16 job cycle checks (Resp. Exhs. 14 and 15).
23 Only one safety complaint of Thomas might.fall within the realm of
protected activity. That involved his complaint about Nunn's sending an
employee into a barricaded area to take a product sample. Thomas took
that matter up with Sujka sometime in August 1979. While the complaint
clearly involved safety of employees, it is not entirely clear what the
safety rule was or if there was a clear breach of the rule. In any event,
there was no evidence that this particular safety complaint played any
part in the UPC or probation contact. The hiatus between the August
complaint and the late October UPC coupled with the intervening events
which directly resulted in the UPC realistically preclude its assessment as
a factor 1n the UPC. See Erie Suoyer Campony. supra.
!50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering next the General Counsel's third conten-
tion that Thomas' UPC and the subsequent probation
contact were based on his filing of a workmen's compen·
sation claim, the Board held in 1979 that the filing of a
workmen's compensation claim was a concerted activity
protected under the Act. Krispy Kreme Doughnut Corp ..
supra. In so finding, the Board specifically overruled
Hunt Tool Company, 192 NLRB 145 (1971), which had
held to the contrary. In December 1980, the Fourth Cir-
cuit Court of Appeals denied enforcement of the Board's
Order in Krispy Kreme, 635 F.2d 304. It is not necessary
to discuss here either the rationale of the Board's Deci·
sion in Krispy Kreme or the court's decision in refusing to
enforce the Board's Order. It is sufficient to note that the
Board's Decision provides the applicable precedent
which, with all due deference to, and respect for, the
court's decision, is binding upon me. See Insurance
Agents' International Union, AFL-CIO (The Prudential In-
surance Company of America), 119 NLRB 768, 773
(1957). Accordingly, based on the Board's Krispy Kreme
Decision I find that Thomas' filing of a workmen's com·
pensation claim was a protected concerted activity.
I am not persuaded, however, that the Respondent
predicated the UPC or the probation contact upon
Thomas' workmen's compensation claim. While the
record is unclear as to when Thomas filed the claim, it is
undisputed that the senior supervisor, Godfrey Little,
discussed with Thomas his "involvement with work-
men's compensation" on July 25, 1979.24 Thus, I con-
clude that the Respondent was well aware of Thomas'
claim for over 3 months prior to the time that he re-
ceived the UPC. If the Respondent had been inclined to
retaliate because of his workmen's compensation claim it
allowed at least two opportunities to pass, the September
29 truck shed incident and the October 5 incident with
Daniel Supervisor Dillon. Moreover, the UPC preceded
the workmen's compensation hearing by more than a
month and occurred at a time when there was a possibil-
ity that the hearing would be obviated by the insurance
payment of all of Thomas' claims. While that possibility
existed it would have been senseless to retaliate against
Thomas for having filed the claim. I am not unmindful
of Monroe's comment to Thomas that Thomas was con-
sidered by the Respondent to be a "threat" because of
his workmen's compensation claim, but I conclude that
had such a "threat" been a moving factor in the UPC the
Respondent would more likely have acted substantially
sooner. Considering the timing of the UPC, and in light
of my conclusions that there was cause shown by the
Respondent for the UPC and the later probation contact,
I find and conclude that Thomas would have received
the UPC and the probation contact even if he had not
filed the workmen's compensation claim.
Considering the above and the record as a whole, I
find and conclude that the Respondent did not violate
Section 8(a)(3) and (I) of the Act in issuing the unsatis-
factory performance contact for Thomas or subsequently
putting him on probation.
24 Linle's notes on the discussion were entered in evidence as Resp.
Exh. 21.
CoNCLUSIONS OF LAw
1. Respondent E. I. DuPont de Nemours and Compa-
ny, Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, United Steelworkers of America, AFL-
CIO, CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating employees regarding their union
sentiments and activities and the union sentiments and
activities of other employees; by creating the impression
among its employees of surveillance of their union activi-
ties; and by threatening its employees with unspecified
reprisals because of their union activities, the Respondent
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The Respondent did not violate Section 8(a)(3) and
(I) of the Act in issuing an unsatisfactory performance
contact to Harry Thomas on October 29, 1979, or in put·
ting him on probation on April 16, 1980.
THE REMEDY
Having found that the Respondent has engaged in cer·
tain unfair labor practices, it will be recommended that
the Respondent be ordered to cease and desist therefrom
and that it take certain affirmative action designed to ef·
fectuate the policies of the Act, to include the usual post-
ing of an appropriate notice to employees.
Upon the foregoing findings of facts, conclusions of
Jaw, and the entire record, and pursuant to Section IO(c)
of the Act, I hereby issue the following recommended:
ORDER25
The Respondent, E. I. DuPont de Nemours and Com-
pany, Inc., Wilmington, North Carolina, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees regarding their senti·
ments and activities and the sentiments and activities of
other employees in behalf of United Steelworkers of
America, AFL-CIO, CLC, or any other labor organiza-
tion.
(b) Creating the impression among its employees that
their union activities are under surveillance.
(c) Threatening its employees with unspecified repri·
sals because of their activities on behalf of the above
Union or any other labor organization.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization; to form, join, or assist
the above-named Union or any other labor organization;
to bargain collectively through representatives of their
•• In the event no exceptions are tiled as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
E. I. DUPONT DE NEMOURS AND COMPANY, INC. !51
own choosing; and to engage in other concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection; or to refrain from any or all
such activities.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Post at its plant in Wilmington, North Carolina,
copies of the attached notice marked "Appendix. "26
Copies of said notice, on forms provided by the Regional
Director for Region II, after being duly signed by the
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify, the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
lT IS ALSO ORDERED that the consolidated complaint
be dismissed insofar as it alleges violations of the Act not
specifically found.
26 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."
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 opportunity 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 or-
dered us to post this notice.
WE WILL NOT interrogate our employees con-
cerning their sentiments for, or activities in connec-
tion with, United Steelworkers of America, AFL-
CIO, CLC, or any other labor organization; nor
will we interrogate our employees regarding the
union sentiments or activities of their fellow em-
ployees.
WE WILL NOT create among our employees the
impression that their union activities are under sur-
veillance.
WE WILL NOT threaten our employees with un-
specified reprisals because of their union activities.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights to self-organization; to
form, join, or assist the above-named Union or any
other labor organization; to bargain collectively
through representatives of their own choosing; and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection; or to refrain from any or all such activi-
ties.
E. I. DUPONT DE NEMOURS AND COMPA·
NY, INC.