Grainger, W. W., Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1981

255 N.L.R.B. 1106 (N.L.R.B. 1981)

1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. W. Grainger, Inc. and Miscellaneous Warehouse-
men, Airline, Automotive Parts, Service, Tire
and Rental, Chemical and Petroleum, Ice,
Paper, and Related Clerical and Production
Employees Union, Local No. 781, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 13-
CA- 18500
April 20, 1981
DECISION AND ORDER
On April 14, 1980, Administrative Law Judge
Stephen Gross issued the attached Decision in this
proceeding.' Thereafter, the General Counsel filed
exceptions and a supporting brief2 and Respondent
filed a brief in response thereto.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs3 and has decided to affirm the rulings, find-
ings,4 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The General Counsel has excepted, inter alia, to
the Administrative Law Judge's dismissal of the
8(a)(l) allegation that Respondent, in interrogating
Wayne Jaske and Dean Meretick, failed to provide
the protections mandated by Johnnie's Poultry Co.5
Case 13-CA-18500 came on for hearing before the Administrative
Law Judge in consolidation with Case 13-RC-15024. With respect to the
representation case, an election was held on May 18, 1979, resulting in a
tally of 119 votes for, and 119 votes against, the Union. There were two
challenged ballots. There was before the Administrative Law Judge a
challenge only to the ballot of Wayne Jaske, the subject of the 8(a)(3)
allegation in the instant complaint. After the issuance of the Administra-
tive Law Judge's Decision which included within its recommended
Order a disposition of the Jaske challenge, the Board granted the joint
request of the Petitioner and the Regional Director to sustain the chal-
lenge to Jaske's ballot, sever Case 13-RC-15024 from Case 13-CA-
18500, and have the Regional Director issue the appropriate certification
of results.
2 The Board herein grants counsel for the General Counsel's unop-
posed "Motion To Include Additional Case Authority" in her brief.
3 The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
4We adopt the Administrative Law Judge's dismissal of the 8(a)(l) al-
legation that Supervisors Dublinski and Owen told employee Altman that
union activities were "grounds for termination." In so doing we rely on
the Administrative Law Judge's crediting of Dublinski and Owen over
Altman. We note, however, that, contrary to the Administrative Law
Judge's finding, the record reveals that Owen did not testify that Altman
told him that Altman had been threatened by another employee because
of his union activity.
We have considered the General Counsel's partial reliance on the
small-plant doctrine, Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959),
with respect to Respondent's knowledge of Wayne Jaske's union activi-
ties. We agree that the small-plant doctrine is applicable to the plant here.
However, unlike the situation in Wiese Plow, we find the limited union
activity of Jaske to be insufficient for us to draw the inference that it was
brought to the attention of Respondent's management.
I Johnnie's Poultry Co. and John Bishop Poultry Co., Successor, 146
NLRB 770 (1964).
255 NLRB No. 145
We agree with the General Counsel only with re-
spect to the interrogation of Jaske.
Jaske had been discharged by Respondent on
March 1, 1979, and the instant complaint alleging,
inter alia, a violation of Section 8(a)(3) issued on
April 30, 1979. The record reveals that on July 24,
1979, Respondent's attorney, Edwin Thomas, ac-
companied by Respondent's distribution manager,
Joseph Lyon, showed up unannounced and uninvit-
ed at Jaske's apartment.
After Thomas and Lyon introduced themselves,
Thomas asked Jaske if he could question him about
his union activities. Thomas responded to Jaske's
refusal by saying that most witnesses were willing
to talk to him. Thomas persisted in his efforts to
engage Jaske in a discussion about Jaske's union ac-
tivities. Confronted with Jaske's continued refusal
to submit to Thomas' questions, Thomas and Lyon
then left. Neither Thomas nor Lyon told Jaske that
he was under no obligation to talk to them or that
there would be no reprisals if he refused to answer
Thomas' questions.
In Johnnie's Poultry, the Board held that an em-
ployer may interrogate employees on matters con-
cerning their Section 7 rights for the purpose of
either verifying a union's claim of majority status
or, as here, to prepare a defense for use in an unfair
labor practice trial. In balancing this employer
privilege against the "inherent danger" to employ-
ees of coercion, the Board requires that:
[T]he employer must communicate to the em-
ployee the purpose of the questioning, assure
him that no reprisal will take place, and obtain
his participation on a voluntary basis; the ques-
tioning must occur in a context free from em-
ployer hostility to union organization and must
not be itself coercive in nature; and the ques-
tions must not exceed the necessities of the le-
gitimate purpose by prying into other union
matters, eliciting information concerning an
employee's subjective state of mind, or other-
wise interfering with the statutory rights of
employees.
In addressing the applicability of Johnnie's Poul-
try, the Administrative Law Judge correctly noted
that Jaske, being a discharged employee seeking re-
instatement in a Board proceeding, was a potential
employee of his ex-employer. The Administrative
Law Judge reasoned, however, that the degree of
coercive power an employer may exert over an
employee in Jaske's position is considerably less
than that available for use against present employ-
ees or applicants for employment. Relying on this
"difference," the Administrative Law Judge further
held that the "full panoply of the Johnnie's Poultry
W. W. GRAINGER, INC. 1107
requirements ought not apply" to an interrogation
of an alleged 8(a)(3) discriminatee.
We disagree with the Administrative Law Judge.
In so doing we recognize that an employer's power
to coerce an individual through discharge, threat of
discharge, or refusal to hire is clearly more immi-
nent for a current employee or applicant than it is
for a discharged employee who may be reinstated
pursuant to a future Board order. However, we do
not view this distinction regarding the timing of
potential coercion as sufficient to justify any dim-
inution in the Johnnie's Poultry safeguards.
In analyzing Thomas' questioning of Jaske, the
Administrative Law Judge listed six factors to sup-
port his finding that the questioning was conducted
in a lawful manner. We agree with the Administra-
tive Law Judge's findings that Thomas' questions
were within the ambit of permissible subjects of in-
terrogation and that Jaske chose, despite Thomas'
repeated opportunity, not to respond to any sub-
stantive questions. We take issue, however, with
the Administrative Law Judge's conclusions drawn
with respect to several of the remaining factors.
First, in noting that the questioning took place at
Jaske's home, that Thomas and Lyon behaved in
an "amicable" manner, and that no threats or
promises were made to Jaske, the Administrative
Law Judge apparently intended to show that the
interrogation was not coercive. However, as the
Administrative Law Judge found in section IV of
his Decision, Jaske responded to Thomas' repeated
requests for information about his union activities
by referring to counsel for the General Counsel as
"my lawyer" and claiming, falsely, that she had in-
structed him not to talk to Respondent's repre-
sentatives. The Administrative Law Judge credited
Jaske's testimony that he had made up this story in
order to relieve the pressure that Thomas' interro-
gation was inflicting on him. We agree that
Thomas' interrogation of Jaske was violative of
Section 8(a)(1) irrespective of any pressure that
Jaske may have experienced as a result of the ques-
tioning. The Board has long held that the legal
standard to be applied in determining whether an
interrogation is coercive within the meaning of
Section 7 is whether the interrogation may reason-
ably be said to have a tendency to coerce an em-
ployee in the free exercise of his rights under the
Act. 6 We find Thomas' interrogation tended to
coerce Jaske and that Respondent therefore violat-
ed Section 8(a)(l) of the Act.
Further, the Administrative Law Judge appar-
ently intended to excuse Respondent's failure to
extend to Jaske the first two of the Johnnie's Poul-
try safeguards by finding that the purpose of
6 El Rancho Market, 235 NLRB 468 (1978).
Thomas' questioning was self-evident and that nei-
ther Thomas nor Lyon made any threats or prom-
ises to Jaske. However, the thrust of Johnnie's Poul-
try is to impose on an employer an affirmative duty
to extend the safeguards. Since Thomas did not di-
rectly inform Jaske that no reprisals would be
forthcoming or tell him that the purpose of ques-
tioning was to prepare Respondent's defense to an
unfair labor practice charge, we find that Jaske was
not afforded sufficient protection against Thomas'
interrogation and that therefore Respondent violat-
ed Section 8(a)(1) of the Act.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 4 and 5 and substi-
tute the following as Conclusion of Law 3:
"3. By interrogating Wayne Jaske concerning his
union activities without providing him with the
necessary safeguards, Respondent thereby inter-
fered with, restrained, and coerced him in the exer-
cise of his rights guaranteed in Section 7 of the
Act, thus engaging in an unfair labor practice
within the meaning of Section 8(a)(l) of the Act."
THE REMEDY
Having found that Respondent engaged in an
unfair labor practice in violation of Section 8(a)(l)
of the Act, we shall order that Respondent cease
and desist therefrom and take certain affirmative
action designed to effectuate the policies of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
W. W. Grainger, Inc., Elk Grove Village, Illinois,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
union activities in a manner which interferes with
the rights guaranteed them in Section 7 of the Na-
tional Labor Relations Act, as amended.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Post at its Elk Grove, Illinois, plant copies of
the attached notice marked "Appendix." 7 Copies
7 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."
W. W. GRAINGER, INC. 107
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 13,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
MEMBER ZIMMERMAN, dissenting:
The Board today extends the protections enunci-
ated in Johnnie's Poultry Co.,8 to cover employees
who are no longer in the employ of Respondent
and whose discharge was lawful. The majority rea-
sons that an employer retains coercive powers over
an employee whose discharge is the subject of a
pending unfair labor practice charge and who,
therefore, might be reinstated pursuant to a future
Board order. I find that premise so speculative that
it will not support the finding that Respondent vio-
lated Section 8(a)(l) in its interrogation of alleged
discriminatee Jaske.
The discharge of Jaske has been found lawful.
Respondent has been vindicated for its conduct in
discharging him. Under those circumstances, I see
no justification or statutory authority for requiring
it to treat Jaske differently from any other former
employee. We are dismissing the 8(a)(1) charges
arising from the questioning of former employee
Maretick, who voluntarily left Respondent's
employ. The charges arising from Jaske's interroga-
tion should be accorded the same treatment.
Were we to find that Respondent had committed
an unfair labor practice in discharging Jaske, who
would therefore be entitled to reinstatement, a dif-
ferent question might arise. 9 But that is not the
issue presented.
Since I cannot join in the distinction the majority
uses to find that Respondent improperly interrogat-
ed Jaske, I dissent.
s 146 NLRB 770 (1964).
9 Cf. N.L.R.B. v. Neuhoff Bros., 375 F.2d 372, 378 (5th Cir. 1967)
(former employee who had applied for reemployment).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees
concerning their union activities in a manner
interfering with the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their right to self-organi-
zation, to form, join, or assist labor organiza-
tions, to bargain collectively through repre-
sentatives of their own choosing, to engage in
concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activi-
ties.
W. W. GRAINGER, INC.
DECISION
STATEMENT OF THE CASE
STEPHEN GROSS, Administrative Law Judge: On May
18, 1979, a representation election was held for W. W.
Grainger, Inc.'s warehouse workers in the Chicago area.
The Union involved in the election was Miscellaneous
Warehousemen, Airline, Automotive Parts, Service, Tire
and Rental, Chemical and Petroleum, Ice, Paper, and
Related Clerical and Production Employees Union,
Local No. 781, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein the Union or Local 781.
A total of 238 unchallenged ballots were cast, there
were 119 for the Union and 119 against. There is one
challeged ballot, Wayne Jaske's. The Board agent chal-
lenged Jaske's ballot on the ground that he was not a
Grainger employee at the time of the election.
All parties agree that Jaske was fired by Grainger on
March 1, 1979. But the Union contends that Jaske was
discharged for his activities in support of the Union. And
there is no dispute that, if that were the case, Jaske's
vote should be counted: see, e.g., Simley Corp., 233
NLRB 391, 398 (1977); Washington Aluminum Co., 126
NLRB 1410, 1418 (1960), enfd. 370 U.S. 9 (1961).
The General Counsel agrees with Local 781's theory
about why Grainger discharged Jaske and alleges that
Grainger thereby violated Section 8(a)(3) and (1) of the
Act.
I See the report on challenged ballots and objections and notice of
consolidated hearing, Case 13-RC-15024 G.C. Exh. (f). There were
originally two challenged ballots: Jaske's and another employee's, whose
ballot was challenged by Local 781. The parties have stipulated to sustain
the Union's challenge.
W. W. GRAINGER, INC. 1109
In view of the impact that the decision in this proceed-
ing will have on the unionization of Grainger's employ-
ees, it is unsurprising that the facts of Jaske's discharge
were subjected to extensive examination. The hearing
lasted 7 days and 23 witnesses testified. With minor ex-
ception all of the testimony was concerned with the cir-
cumstances of Wayne Jaske's discharge and the reasons
for it.
After consideration of that testimony and the other
facts of record, my conclusion is that Grainger did not
violate the Act when it discharged Jaske and that the
Board agent's challenge of Jaske's ballot accordingly
should be sustained.
Respondent W. W. Grainger, Inc., is a wholesale dis-
tributor of electrical equipment and related products.
Grainger admits that it is engaged in commerce for the
purpose of the Act and that Local 781 is a labor organi-
zation within the meaning of the Act.
Local 781 filed a charge in Case 13-CA-18500 on
March 5, 1979, claiming that Wayne Jaske was dis-
charged because of his union activities. The Acting Re-
gional Director for Regional 13 issued a complaint, based
on the charge, on April 30, 1979.2 Grainger filed a
timely answer denying the substantive allegations of the
complaint.
As for Case 13-RC-15024, as discussed earlier, an
election was conducted at Grainger on May 18, 1979,
under the supervision of the Regional Director for
Region 13. A tally of unchallenged ballots showed an
equal number cast for and against the Union. There were
two challenged ballots.
On July 9, 1979, the Acting Regional Director deter-
mined that issues concerning the challenged ballots could
best be resolved via a hearing. He therefore consolidated
Cases 13-RC-15024 and 13-CA-18500. 3 Respondent ex-
cepted, but the Board, on August 3, 1979, adopted the
Acting Regional Director's findings and recommenda-
tions.4
The hearing was held on August 13, 14, 15 and Sep-
tember 12, 13, 14, and 17, 1979, in Chicago.
Briefs have been filed by Grainger, by Local 781, and
by counsel for the General Counsel.5
FINDINGS OF FACT
1. JASKE'S DISCHARGE
A. Summary
Upon leaving work on February 15, 1979, Jaske no-
ticed that a large nail was propped against the tire of his
car. The nail was placed so that it would have penetrat-
ed the tire if it had been there when Jaske pulled away
from his parking space.
' The complaint was subsequently amended to include allegations that
a Grainger supervisor made threats against an employee associated with
the employee's concerted activities (see G.C. Exh. I(p)) and that agents
of Grainger conducted an improper interrogation of Jaske and another
former Grainger employee (see G C. Exh. I(mm)).
3 G.C. Exh. I(f).
4 G.C. Exh. l(cc)
5 The General Counsel's motion to correct the transcript is granted in
all respects.
Jaske lost his temper. He rushed into the warehouse
swinging an ice scraper and "screaming and hollering"
threats and obscenities at all members of the oncoming
shift in the warehouse in which Jaske worked, including
the foreman of that shift. A few minutes later Jaske
sought out another supervisor in the warehouse, Martin
Audette (who was unaware of Jaske's outburst), and
complained about the attempted vandalism.
Grainger management's attention was first directed
toward the problem Jaske had raised with Audette-
would-be vandalism in the warehouse parking lot. But
management's focus subsequently shifted to Jaske's
threatening behavior. There is no real dispute that that
behavior became the subject of several memoranda, the
last of which reached the desk of the most senior
Grainger official directly involved in the matter, Joseph
Lyon, on February 26.
As of that date Jaske had not been involved in any
way with union activity at Grainger. But on February 27
Jaske signed a Local 781 authorization card. And early
in the morning of February 28 he handed out authoriza-
tion cards to employees at his place of work.
On March 1 Lyon ordered Jaske to be fired.
Various Grainger witnesses testified that the sole
reason for Jaske's discharge was Jaske's behavior on
February 15 and the impact that that behavior had on
other Grainger employees. But a fellow employee testi-
fied that Jaske's foreman said that Jaske was fired be-
cause of his union activities.
As I add up the facts of record: (1) Jaske's behavior on
February 15 warranted his discharge, both because of
the nature of that behavior and because of its impact on
the behavior of other employees at the warehouse; (2)
Jaske's discharge was in keeping with Grainger's person-
nel practices; and (3) the testimony of Grainger's princi-
pal witnesses seems to me to be an accurate portrayal of
the events in question. I accordingly find that Grainger's
discharge of Jaske did not violate the Act in any respect.
B. The Chronology of Jaske's Discharge
Jaske started working for Grainger in May 1976. Jaske
appears to have been a good employee, or at least no
worse than average, and had not had any disciplinary
problems until the events under consideration here.
C. Jaske's Threats to the Day Shift
In March 1978 Jaske was assigned to the night shift at
Grainger's Elk Grove warehouse. Jaske's shift ran from
midnight to about 8:30 a.m.
At the conclusion of his shift on February 15, 1979,
Jaske and a fellow employee, Dean Maretick, went out
to the warehouse parking lot. While Jaske was scraping
ice and snow from his car, Maretick noticed a large nail
propped up against Jaske's tire. Had the nail gone unno-
ticed, it almost surely would have pierced the tire of
Jaske's car when Jaske drove away, and there was every
indication that the nail had been deliberately placed
against the tire.
Jaske concluded, on the spot, that the nail must have
been put there by someone on the day shift-the shift
that began work at the time Jaske's shift ended. And
W. W. GRAINGER, INC. _ .
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the nail in one hand and his 3-foot-long ice scraper
in the other, Jaske reentered the warehouse and walked
at a fast pace up a ramp inside the warehouse leading to
where the seven members of the day shift were gathered.
As Jaske went up the ramp he yelled a variety of ob-
scenities and threats while waving the ice scraper. Jaske
did not think he had lost control of himself. But that is
not how the onlookers perceived it. To them, Jaske's
"very angry" expression, "bug-eyed," red face, "shouted
obscenities," threats, and waving ice scraper added up to
very worrisome, "crazy" behavior. 6
The day crew had gathered near the ramp to receive
orders from their foreman, Harold Dublinski. A security
guard, David Millard, was nearby, as was Jaske's fore-
man, Norb Sadowski.
Jaske went into the middle of the circle or semi-circle
formed by the day crew and, while continuing to wave
the ice scraper, yelled "extremely loud" that he knew
that someone on the day crew was responsible for prop-
ping the nail against the tire of his car. Jaske interspersed
his curses with threats to bash in the head of the person
who did it.
Dublinski and some of the other day-shift employees
felt that while Jaske was indeed making threats that he
was not threatening anyone in particular. But a few
other day-shift workers saw the situation as one involv-
ing direct threats against them personally. And one em-
ployee had to step back in order to avoid being hit as
Jaske swung the ice scraper.
When Jaske first came into the warehouse he ignored
Dublinski's efforts to calm him down. But after about 3
minutes Jaske did calm down and exited the warehouse,
heaving the nail against a nearby trailer as he went. 7
D. Jaske's Meeting With Audette
At this point three things had happened of importance
to discipline, security, and morale at the warehouse: (I) a
nail had apparently been deliberately propped against the
tire of an employee's car in the warehouse parking lot;
(2) an employee, Jaske, had been badly upset by this at-
tempted vandalism; and (3) that same employee, Jaske,
had lost his head and threatened an entire warehouse
shift, including a foreman. It is clear that by any usual
industrial standards, including those in effect at Grainger,
Jaske's behavior merited some form of discipline. But
Jaske's actions immediately following his threats to the
day shift had the effect of focusing Grainger manage-
ment's attention on the first two aspects of the incident;
namely, the vandalism and Jaske's resulting upset.
What happened was that Jaske reentered the ware-
house and asked to speak to Martin Audette. Audette
a The General Counsel and the Union sought to show that the use of
obscenities is routine in the warehouse in which Jaske worked. But it is
clear that the way Jaske used those obscenities was far from routine. Or,
as one day shift employee put it, he had heard obscenities used in the
warehouse before, "but not in a fierce way, like he [Jaskel come in and
said it."
7 Jaske's version of the incident was considerably milder than the pic-
ture portrayed by the day-shift rank-and-file employees, by Foremen
Dublinski and Sadowski, and by Security Guard Millard. With minor ex-
ception I credited the testimony of the people on the receiving end of
Jaske's outburst over Jaske's description of the episode where there was a
conflict.
was the assistant operations manager of a group of ware-
houses, including the Elk Grove warehouse, and as such
was the most senior person in the warehouse at the time
of the incident.
Audette was at the other end of the warehouse and
had not witnessed Jaske's confrontation with the day
shift. When Jaske got to Audette, Jaske complained
about the nail and said that someone on the day crew
must have been responsible for putting it under his car.
Jaske was still visibly upset when he made his complaint
to Audette. After stating his complaint Jaske quietly left
the warehouse.
E. Reports of the Jaske Incident
Joseph Lyon is Grainger's distribution manager for op-
erations and as such oversees the operations of
Grainger's distribution center in the Chicago area, which
includes the Elk Grove warehouse. While some of his
subordinates have the authority to fire warehouse em-
ployees, Lyon is principally responsible for the task. Au-
dette reports directly to Lyon. Audette telephoned Lyon
immediately after he spoke to Jaske. Since Audette knew
nothing of Jaske's behavior toward the day shift, the Au-
dette-Lyon conversation focused on the vandalism to
Jaske's car.
At or about the same time, Day-Shift Foreman Dub-
linski called his immediate superior, Wally Owen. After
Dublinski described the incident to Owen, Owen told
Dublinski to prepare a written report and send it to
Owen.
Three written reports, along with two telephone con-
versations, were made of the Jaske incident: The report
Owen told Dublinski to draft; a report by Audette to
Lyon confirming their telephone conversation; and a
report prepared by Security Guard David Millard. All
three reports are part of the record. s
F. The Day Shift's Behavior Following the Jaske
Incident
The Jaske incident triggered strong feelings of concern
on the part of the day-shift employees for the safety of
their own automobiles. The day shift's concern stemmed
in part from a fear that the unknown culprits who tried
to vandalize Jaske's car could do the same to theirs. But
the day shift's major worry was that Jaske would try to
retaliate. He did say, after all, that he thought that some-
one on the day crew had put the nail under his car's tire.
That, in turn, led to a situation in which some members
of the day crew spent their coffeebreaks and mealtimes
in their cars on the parking lot rather than, as customary,
in the warehouse lunchroom. That unusual behavior (it
was wintertime in the Chicago area) continued until
about mid-March 1979. The day crew, in addition,
voiced their concern about possible retaliation by Jaske
to Dublinski. And Dublinski, on his part, asked the secu-
rity guard to increase his usual checks of the parking lot.
The guard, Millard, did so. (The night-shift guard, whom
Millard supervised, also stepped up his surveillance of
the parking lot.)
8 See G.C. Exh. 12, and Resp. Exhs. 14 and 16.
W. W. GRAINGER, INC. 111
G. Owen's Call to Lyon
During the time period at issue Wally Owen was the
warehouse manager of two of Grainger's warehouses in
the Chicago area, including the Elk Grove warehouse.
As such the Elk Grove foremen reported directly to
him. Owen, in turn, reported to Lyon. Owen had the au-
thority to discipline employees, including the authority
to discharge them. But as a practical matter it was Lyon,
not Owen, who handled discharges.
After Dublinski telephoned Owen about the Jaske inci-
dent (but before Owen had received Dublinski's written
report), Owen called Lyon about the incident. By that
time Lyon had already talked to Audette. Owen's call
had the effect of further focusing Lyon's attention on the
vandalism, on Jaske's upset, and on Jaske's feeling that
someone on the day shift had been responsible for the
vandalism. (Just why that happened is unclear. It could
have been because Lyon, who had already heard from
Audette, unwittingly influenced the course of the call, or
because of some missed communication between Dub-
linski and Owen.) Given that focus, Lyon suggested, and
Owen agreed, that there should be a meeting of the day-
and night-shift employees at the Elk Grove warehouse
"just to cool things down."
H. The February 16 Meeting at the Warehouse
On Friday, February 16, beginning at or about 8:20
a.m., Owen spoke briefly to the employees, telling them
that he did not want any more incidents like the one on
February 15. Owen then said that he thought that Jaske
might have something to say and Jaske used the opportu-
nity to apologize for his behavior on February 15. Lyon,
who had gotten to the meeting just after it started, said a
few words in support of Owen and said that he could
understand why Jaske had become angry. Neither Lyon
nor Owen said anything at the meeting that was critical
of Jaske. 9
I. Lyon Gets the Reports of Jaske's Behavior
Lyon got Audette's report on Friday, February 16. On
that same day Owen forwarded Dublinski's report to
Lyon. But due to the nature of the intra-Grainger mail
system, Lyon did not receive the report until Monday,
February 19.
Lyon also received the security office's report on the
Jaske incident on February 19.10 The report Lyon re-
ceived from security purported to be Millard's report.
But in fact the security report had been slightly recast by
one of Millard's superiors. Unfortunately for Jaske, the
changes in Millard's report, albeit minor, made Jaske's
behavior look even worse than did Millard's original
report.1" The General Counsel and the Union sought to
make much of this circumstance. But the revised report
was written no later than February 16. Since Jaske did
9 Shortly after the February 16 meeting, Lyon wrote a memorandum
for inclusion in Jaske's personnel file. See Resp. Exh. 21. The memo con-
firms Lyon's testimony, as outlined above, and it is clear that the memo is
what it purports to be: A memorandum written by Lyon on February 16,
1979.
'o See Resp. Exh. 15.
An Compare Resp. Exh. 15 with G.C. Exh. 12.
not engage in any union activity until February 27 and in
fact did not even know of the Union's organizing efforts
until that date, the revisions to Millard's report could not
have possibly have been discriminatorily motivated.
Rather, the revisions seem to reflect the security office's
views on writing style, as the witnesses from the security
office testified.
Lyon had been somewhat nonplussed by Jaske's apol-
ogy at the February 16 meeting because, as far as Lyon
then knew, there was nothing for Jaske to apologize
about. The two reports that Lyon received on February
19 showed why Jaske apologized.
J. Lyon Gathers Additional Facts on the Jaske
Incident-February 21 Through 27
On February 21 Lyon sent the following memorandum
to Audette:
Please look into the incident regarding a nail
under Jaske's tire. I have heard that Jaske made
threats to day shift personnel and generally acted in
a very irrational manner.
Review reports covering the incident and talk to
people as you deem appropriate and we will discuss
your findings. Make copies of any reports for our
discussion.
I'd like to cover this ASAP.' 2
Audette responded to Lyon's request in a memoran-
dum dated Friday, February 23. The memo arrived at
Lyon's desk on Monday, February 26. It reads:
The security report, the day shift foreman H. Dub-
linski's report and my observations concerning the
incident involving Wayne Jaske conclude that
Wayne became very angry on February 15 after
finding a nail propped under his car tire. He reen-
tered the building [swinging] a wooden ice scraper,
making [threats] to hurt people, using abusive lan-
guage, and looking for a fight. He could not control
his emotions at first, but did settle down after
awhile. He seemed to [accept] the fact that our own
security dept. would look into the incident. He then
left the building.13
Audette's memorandum added little if anything to Mil-
lard's and Dublinski's reports. According to Lyon, he
said this to Audette on February 27 the day after Lyon
received the memorandum. According to both Audette
and Lyon, Audette then verbally amplified what he had
said in his February 23 report. According to Lyon's tes-
timony, Audette mentioned that Jaske had threatened
each member of the day shift, "including the foreman,"
and that Audette referred to the ongoing situation at the
warehouse as a "precipitous situation that we really
12 Resp. Exh. 17.
'3 Resp. Exh. 18. Audette said that in order to prepare his report he
spoke to both Dublinski and Millard. But neither Dublinski nor Millard
remembered talking to any Grainger supervisor about the Jaske incident
(apart from Dublinski's conversation with Owen on February 15). Dub-
linski and Millard could perhaps have forgotten about the brief meeting
with Audette that Audette testified about. But the discrepancy does
affect the weight to be accorded to Audette's testimony.
W. W. GRAINGER, INC. 'Ill
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
didn't want to live with." Audette's testimony was some-
what different. To begin with, he did not mention that
Lyon criticized his report. Secondly, Audette said that
what he told Lyon in amplication of his report was that
Jaske "stormed into the building, swinging with an ice
scraper and using abusive language towards the day shift
employees, and he threatened to kill anybody who came
close to his car."
During this same period of time Lyon and Owen had
one or more conversations about the situation at the Elk
Grove warehouse. Owen had checked with Jaske several
times to find out if Jaske had learned anything else about
how the vandalism to his car occurred. Owen remembers
Jaske saying, "If I find out anything I will take care of it
myself." I credit that testimony since it sounds like the
kind of thing Jaske would have replied to the kind of
question Owen asked.
Owen mentioned this conversation to Lyon and also
testified that he spoke to Lyon of the day shift's concern
about the safety of their automobiles. 14
It is clear that once Lyon received Audette's memo-
randum confirming the reports from Dublinski and the
security office-and indeed in some respects painting an
even worse picture of Jaske's behavior than did the two
earlier reports-Lyon was going to order Jaske to be dis-
ciplined in some manner. Jaske's behavior was, after all,
seriously out of line, it did involve a foreman, and it did
have a subsequent impact on the behavior of other em-
ployees at the Elk Grove warehouse. Moreover, Lyon's
February 21 memorandum itself suggests that Lyon felt
that Jaske's behavior on February 15 merited some form
of disciplinary response. Thus, as of February 26 (the
day Lyon received Audette's reply to Lyon's February
21 memorandum), the question that Lyon had to resolve
was not whether Jaske should be disciplined, but what
form that discipline should take.
K. Jaske's Union Activities: February 27 and 28
Late in the evening of February 27 an employee from
Grainger's Bensenville warehouse visited Jaske's apart-
ment and discussed the Union's efforts to organize
Grainger. He then asked Jaske to sign an authorization
card and to hand out authorization cards to other em-
ployees at the Elk Grove warehouse.
That was the first that Jaske had heard about any or-
ganizational efforts at Grainger. Jaske agreed to sign a
authorization card and to hand cards out to fellow em-
ployees.
In accordance with his promise, Jaske did hand out
cards to several employees during the morning of Febru-
ary 28. Jaske's efforts were not an enormous success,
however, since two of the three employees to whom
Jaske talked about the Union, Robert Lipper and Don
"4 Owen said that day-shift employees had talked to him about their
concern. But none of the day-shift employees testified that they spoke to
Owen about the problem. While the employees may simply have forgot-
ten to mention their conversation with Owen, the discrepancy does de-
tract from the weight that I think should be accorded to this aspect of
Owen's testimony. On the other hand, the employees' behavior regarding
their automobiles (taking their breaks and lunch hours out on the parking
lot) was so dramatic that Owen must have become aware of it, especially
since he visited the Elk Grove warehouse somewhere between once and
three times a day.
Parro, told Jaske that they were opposed to the unioniza-
tion of Grainger's employees.
The above account of Jaske's union activities is based
largely on Jaske's testimony. Jaske's account, in turn, is
fully supported by documentary evidence and the testi-
mony of other employees. Grainger argues, however,
that Jaske had nothing to do with the Union until after
he was fired. The basis for Grainger's argument is that
the affidavit that Jaske gave to a Board investigator
states that he did not engage in any organizational activi-
ties until after his discharge. 5 Jaske's explanation about
his affidavit is that when the Board investigator asked
him about his organizational activities, he felt that the in-
vestigator was referring to distributing leaflets and the
like, not handing out a few authorization cards. I credit
Jaske's testimony.
L. Jaske's Discharge on March I
1. Grainger's version
According to Lyon, the facts available to him as of
February 27 added up to the need to discharge Jaske.
First of all there was Jaske's behavior itself: irrational,
threatening, and directed at a supervisor (Dublinski) as
well as a number of rank-and-file employees. Secondly,
Jaske's behavior had led to an "explosive and volatile at-
mosphere" in the Elk Grove warehouse "that persisted
following" the incident. Thirdly, productivity was down
at Elk Grove, and while there was not necessarily any
connection between the Jaske incident and that below-
par productivity, Lyon felt the two might be interrelat-
ed.
Lyon said that he came to the decision to discharge
Jaske late in the day on February 28. He accordingly
called Owen during the day on Thursday, March 1. Ac-
cording to both Owen and Lyon, Lyon said that he
thought that Jaske should be discharged and asked Owen
whether Owen agreed. Owen did agree, and Lyon told
Owen to advise Jaske of his discharge before Jaske went
to work that night. (Owen and Lyon testified that in any
case Jaske's union activity could not have influenced
their views about Jaske because neither of them knew
that Jaske had engaged in any union activity.)
According to the testimony of both Wally Owen and
Norb Sadowski, Jaske's foreman, Owen arrived at the
Elk Grove warehouse at or about 11:30 p.m. on March
1. Owen told Sadowski that he was going to fire Jaske
because of the February 15 incident. Then, when Jaske
arrived at the warehouse at or about 11:45 p.m., Owen
told Jaske that he was fired, referring again to Jaske's be-
havior on February 15.
The testimony of Owen, Sadowski, and Jaske differs
slightly as to the exchange between Owen and Jaske. But
in the main it appears that Jaske expressed surprise and
wanted to know why Grainger had decided to fire him 2
weeks after the event in question without having previ-
ously indicated any concern. Owen responded by refer-
ring to the reports that had been submitted describing
the incident.
' Jaske's affidavit is in evidence as Resp. Exh. 1.
W. W. GRAINGER, INC. 1113
Shortly thereafter Jaske left the warehouse.
One of Jaske's fellow workers, Richard Blake, arrived
at the warehouse soon after Jaske had left. When the se-
curity guard told Blake that Jaske had been fired, Blake
asked Sadowski about it. According to Blake, Sadowski
said that Jaske had been fired because of the nail incident
on February 15. Dean Maretick (who had been with
Jaske on February 15 when Jaske found the nail against
his car's tire) showed up a few minutes after that. As
Blake remembers it, he told Maretick that Sadowski had
said that Jaske "was fired for that incident when he
threatened to kill guys in the warehouse." Maretick re-
sponded, Blake testified, by saying "its got to be some-
thing else," that it "must be union activities." And later,
again according to Blake, Maretick told Blake that Sa-
dowski had said that Jaske "was fired for union activi-
ty."
The fourth night-shift employee (in addition to Jaske,
Maretick, and Blake) was Robert Lipper. As Lipper re-
members it, Maretick told Lipper that Jaske's discharge
"was probably because of union activity" and that "Don
Parro [the day-shift employee who refused to sign an au-
thorization card that Jaske had given him] turned him."
Lipper then asked Sadowski whether that was so, but,
according to Lipper, Sadowski said that Jaske was fired
"because of threatening somebody's life.""'
As Sadowski remembers the events following Jaske's
discharge, when Maretick arrived at the warehouse
shortly after midnight, he asked Sadowski why Jaske had
been fired. Sadowski responded by saying that Jaske had
been fired for threatening other employees. Maretick did
not believe it and said "there has to be some other
reason." Maretick then asked Sadowski whether Jaske
could have been fired for his union activities, to which
Sadowski responded "what union activities," since, ac-
cording to Sadowski, he had not known of any union ac-
tivities among the night-shift employees.
The Union and the General Counsel urge that the tes-
timony of Grainger's witnesses about the circumstances
of Grainger's discharge of Jaske on the night of March 1
and 2 is not credible. Blake and Lipper are claimed to
have shaped their testimony to fit Grainger's interests be-
cause both allegedly were very concerned about losing
their jobs. Moreover, Blake is alleged to be a proven liar.
As for Lyon, Owen, and Sadowski, the General Counsel
argues that their claims that as of March I they did not
know of Jaske's union activities must be presumed to be
a sham. According to the General Counsel, given the
small size of the Elk Grove warehouse work force and,
in particular, the night shift crew of which Jaske was a
member, Foreman Sadowski and then the rest of
Grainger management would have promptly learned of
Jaske's union activities.
2. The Union's and the General Counsel's version
The Union and the General Counsel do not dispute
that Jaske was told that he was fired because of his be-
'e While Lipper's testimony about what Sadowski said was the cause
of Jaske's discharge is pertinent in respect to the Lipper-Maretick ex-
change, it ought not to be considered as evidence of the Company's
actual reasons for discharging Jaske.
havior on February 15. Rather, they focus on the events
immediately following Jaske's discharge.
According to Maretick's testimony, when he arrived at
the warehouse shortly after midnight on March 2 he
asked Blake where Jaske was. Blake told Maretick that
Jaske was fired and that Sadowski had told Blake that
the discharge was connected with Jaske's union activi-
ties. (Blake subsequently flatly denied saying any such
thing to Maretick and testified that as of early March 2
Blake did not even know that Jaske was in any way con-
nected with union activities.)' 7 Maretick then talked to
Sadowski about Jaske's discharge. Sadowski, however,
said that the discharge was because of Jaske's threats on
February 15. Maretick, according to his own testimony,
then returned to Blake, and Blake repeated that Jaske
had been fired for his union activities, amplifying his
statement to mention that Jaske had been fired for talk-
ing about the Union in the warehouse lunch room.
That led Maretick to talk to Sadowski a second time,
at which time, according to Maretick, Sadowski told him
that Parro and Campione, two day-shift employees at the
Elk Grove warehouse, told Owen on the morning of
March I that Jaske was spouting off about the Union in
the warehouse lunch room. (Parro, Blake, and Sadowski
all denied Maretick's version.)
In any event, during the morning of March 2 Maretick
called Jaske and told Jaske that the real reason that Jaske
had been fired by Grainger was because of Jaske's union
activities.
L. Analysis, Conclusions, and Further Findings of
Fact
The General Counsel and the Union argue that there
are three bases for concluding that Jaske was fired for
his union activities: (1) Maretick's testimony about what
a supervisor, Foreman Norb Sadowski, said were the
reasons that Jaske was fired; (2) the timing of Jaske's dis-
charge-2 weeks after the alleged misbehavior but only
1 or 2 days after Jaske handed out some union authoriza-
tion cards; and (3) differences in the way Jaske's disci-
pline was handled compared to that of other Grainger
employees in comparable situations.
1. Maretick's testimony
Maretick testified that, when he asked Sadowski why
Jaske had been fired, Sadowski said that two antiunion
employees had, the day before, told Wally Owen that
Jaske had been "spouting off about the Union." Maretick
also testified that Sadowski's statement was in accord
with a previous conversation Maretick had had with a
fellow employee, Blake, who had told Maretick that Sa-
'7 Blake signed an authorization card (Petitioner's Exh. 2) and testified
that Jaske gave him the card. The card is dated March I-i.e., the day
before Jaske was fired. Blake said that the date was wrong and that he
signed it on March 9. Blake apparently was incorrect about that date-he
must have signed it at least I day earlier. But Blake had been out sick
until March 2 and Jaske's testimony shows that Jaske did not give Blake
an authorization card prior to Jaske's discharge. (In fact Jaske did not in
any way deny the accuracy of Blake's testimony.) Thus, while Blake
must have misremembered the date he signed the card, I credit his denial
that as of the time he arrived at work on the night of March 1-2, he did
not know of Jaske's connection with the Union
W. W. GRAINGER, INC.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dowski had said that Jaske had been fired "because he
was in the lunch room talking about the union." But
Blake, second night-shift employee Lipper, Sadowski,
Parro (one of the employees who allegedly talked to
Owen), and Lyon all controverted Maretick's testimony.
I found their denials persuasive, particularly Blake's.
The General Counsel claims that Blake should not be
credited in view of his lying about an authorization card
that he signed and because he had made it clear to the
General Counsel that he did not want to testify against
his own Company. But an openly stated desire not to tes-
tify in an enforcement proceeding against one's employer
is not at all same thing as a willingness to lie in favor of
the employer. Moreover, Blake considered himself to be
a friend of Jaske-a view not denied by either Jaske or
Maretick. Maretick, on the other hand, seemed to misre-
member situations, recalling his own thoughts or words
as the statements of the person he was talking to. And
that seems to be what happened in respect to his conver-
sations with Blake and Sadowski on March 2. Maretick
liked Jaske, thought well of him, and, in general, had a
close on-the-job friendship with Jaske. Given that rela-
tionship, Maretick's knowledge that Jaske had handed
out authorization cards only I or 2 days before, and the
2-week delay between Jaske's misbehavior and his dis-
charge, Maretick clearly was positive before he spoke to
Blake and Sadowski that he knew why Jaske was fired.
Under the circumstances it is not particularly surprising
that Maretick ended by ignoring or forgetting what
Blake and Sadowski actually said and, instead, concluded
that Blake and Sadowski had confirmed Maretick's opin-
ion about the matter.
In sum, there is no direct evidence at all that Jaske
was fired for his union activities.
2. The timing of Jaske's discharge
From the point of view of Jaske or Maretick, or from
the viewpoint of any other outsider, for that matter, the
timing of Jaske's discharge is extraordinarily suspicious.
The incident involving the nail in the parking lot oc-
curred on the morning of February 15. For over 2 weeks
no one told Jaske that he had done anything wrong or
that the Company was considering disciplining him in
any way. Then, a day or so after he had handed out au-
thorization cards, he was fired, purportedly for the Feb-
ruary 15 incident, but without any explanation about
why there had been a 2-week delay in the Company's
action.
But the circumstances looked very different from the
point of view of the Grainger officials involved in the
matter. Jaske seemed to be supported by the Company at
first, rather than criticized, largely because the senior su-
pervisor at the warehouse at the time, Audette (and,
through Audette, Lyon) initially focused on what had
been done to Jaske, rather than on what Jaske had done.
Memorandums written by company supervisors at the
time, and testimony in accord with those memorandums,
make that clear.
Lyon was the senior Grainger official directly in-
volved in the matter. His understanding of the February
15 incident changed considerably on February 19 as the
result of two memorandums he received on that day. But
it is evident that because Lyon had initially viewed the
matter in another light, he felt even after receiving those
two memorandums that he needed more information.
That is clear from a memorandum that Lyon wrote on
February 21. The response to Lyon's February 21
memorandum was not written by Audette until February
23. And I credit the testimony that showed that the Feb-
ruary 23 memo did not get to Lyon until February 26.
What that adds up to is that, based on documentary evi-
dence that cannot be seriously disputed, Lyon did not
consider himself to be in a position to evaluate the Feb-
ruary 15 incident in terms of disciplining Jaske until no
earlier than February 26. And no one disputes that
Jaske's first contact with the Union was on the evening
of February 27. Moreover, I credit Lyon's testimony
that, because he was dissatisfied with the comprehensive-
ness of the memo that he had received from Audette on
February 26, he spoke to Audette about the matter
during the day on February 27 (still prior to any contact
between Jaske and the Union).
By February 27 Lyon had as much information about
the February 15 incident as he was going to get. He ac-
cordingly could have ordered Jaske's discharge on that
day. He did not, nor did he on February 28. But on
March 1, about 48 hours after his last information-gather-
ing conversation, and 72 hours after Lyon had received
the last memorandum to be written on the matter, Lyon
told Owen to discharge Jaske.
That length of time simply is not a suspiciously long
period in which to make up one's mind to fire an em-
ployee. Lyon is a relatively high level Grainger official
who at the time was involved in a number of matters of
much larger scale than one about whether and how to
discipline one hourly employee. And by the end of Feb-
ruary a sufficient amount of time had elapsed since the
incident in question for it to appear that great expedition
in arriving at a decision was unimportant.
All in all, and notwithstanding initial appearances, the
timing of Jaske's discharge does not indicate that Jaske
was fired for anything but wholly legitimate reasons.
3. Disparate treatment
The General Counsel and the Union point to two fea-
tures of Jaske's discharge that are said to be suspiciously
out of character: (1) the fact that Jaske was discharged,
rather than being given some lesser form of discipline
(the General Counsel and the Union pointing, in particu-
lar, to incidents involving Grainger employees Ron
Herman and Bob Lipper as examples of situations in
which an employee threatened another employee with
bodily harm or, in Lipper's case, actually struck another
employee, yet received only the lightest kinds of disci-
pline);18 (2) the delay between Jaske's misbehavior and
his discharge (with the General Counsel noting that, in
every case in which an employee was discharged for
fighting, the discharge occurred immediately after the
misbehavior or, in the very least, the employee was im-
18 For testimony about the Lipper incident see the transcript. For the
evidence on the Herman incident, see generally the testimony of Terry
Altman, Ron Herman, Wally Owen, Richard Wahl. Joseph Lyon, and
Gerry Wenta, and G.C. Exh. II and Resp. Exh. 9.
W. W. GRAINGER, INC. 1115
mediately or nearly immediately suspended pending in-
vestigation). I have considered the evidence in this
regard, but my conclusion is that it fails to suggest that
Jaske's discharge was for reasons other than those stated
by Grainger.
The problem is that the General Counsel and the
Union fail to come to grips with the uniqueness of the
Jaske incident. As several witnesses pointed out, that in-
cident was unlike anything they had seen before at
Grainger. And in terms of comparing that incident with
others at Grainger, the Jaske incident was special in that
it involved: (1) angry threats against an entire shift of
employees and their foreman; (2) an employee who was
going off duty and thus was leaving the premises on his
own (obviating the need to suspend him in order to sepa-
rate him from his fellow employees); (3) initial focus by
management on what had been done to Jaske, rather
than what he had done; and (4) a significant impact on
the subsequent behavior of a group of Grainger employ-
ees. What these aspects of the Jaske incident add up to,
along with the other facts discussed earlier in this Deci-
sion, is that discharge was not at all out of line with
Grainger's discipline policies.
II. THE ALLEGED DISCHARGE THREAT IN VIOLATION
OF SECTION 8(A)( I)
Terry Altman is, and at all material times was, a
Grainger employee assigned to Grainger's Bensenville
warehouse. According to Altman, sometime in Novem-
ber 1978 he noticed that his foreman, Harold Dublinski,
was giving him "the cold shoulder." Altman testified
that when he asked Dublinski about it, Dublinski said
that Lyon had put out the word that Altman was to be
"watched for union activity." Later that same day, again
according to Altman, Dublinski told Altman that "union
activity is grounds for termination" and that Altman was
to see Dublinski's supervisor, Wally Owen. When
Altman went to Owen's office, Owen, as Altman remem-
bered it, told Altman that four employees had said that
Altman was heavily engaged in union organizing activi-
ties, that Owen would not tolerate such activities, and
that union activity was "grounds for termination."
Altman said that he responded both to Dublinski and
to Owen by claiming that he was "innocent."
Dublinski and Owen both denied Altman's version of
their conversations with him. Dublinski remembers that
Altman did indeed ask him why he was giving Altman
the "cold shoulder." But Dublinski recalled that it was
Altman who asked if it was because Lyon had told Dub-
linski to keep an eye on Altman. Dublinski testified that
he denied that Lyon had said any such thing. About half
an hour after that conversation, Dublinski testified,
Altman paged Dublinski and said that he had been
threatened by a fellow employee for promoting the
Union. When Dublinski asked Altman if he wanted to
see Owen about the matter Altman said "yes." Accord-
ing to Owen, when he met with Altman in his office,
Altman told him only about the threat and about how
much he liked working at Grainger. 9
The issue resolves itself down to a straight credibility
determination, and I credit Dublinski and Owen over
Altman. Other testimony by Altman indicated that his
perceptions were not as reliable as they might be. And
the openness of Altman's union activities does not square
with his recollection of the Dublinski/Owen incident.
My reaction, based on Altman's demeanor, was that,
while he made every attempt to testify honestly, his rec-
ollections should not be relied upon.
My conclusion, therefore, is that the General Counsel
failed to prove that any Grainger supervisor threatened
any employee with discharge or any other form of disci-
pline because of the employee's protected concerted ac-
tivities.
III. LYON'S AND THOMAS' INTERROGATION OF JASKE
AND MARETICK
At or about 6 p.m. on July 24, 1979, Lyon and an at-
torney retained by Grainger, Edwin Thomas, showed up
at Jaske's apartment.20 Lyon and Thomas introduced
themselves and Thomas asked if he could ask Jaske some
questions about Jaske's union activities. Thomas persisted
in the face of a negative response by Jaske. But Jaske
continued to refuse to answer any questions about any-
thing to do with the substance of this proceeding. Lyon
and Thomas left after a few minutes.
Two hours later Lyon and Thomas called on Maretick
at his home. As was the case with Jaske, they had not
notified Maretick of their intended visit. Thomas asked
Maretick about his recollection of the circumstances of
Jaske's discharge and about the contents of the affidavit
that Maretick gave to a Board agent. Maretick refrained
from providing the kinds of information Thomas was
seeking, and Thomas and Lyon left.
The General Counsel claims that this behavior by
Lyon and Thomas amounted to improper interrogation
in violation of Section 8(a)(1) of the Act, citing Johnnie's
Poultry2 ' and its progeny.
The cases cited by the General Counsel all arose in
connection with questioning by an employer's agent of
persons who at the time of the questioning were either
employees of the employer or applicants for employ-
ment. As indicated in those cases, on the one hand there
is an "inherent danger of coercion" in such situations. 22
But on the other hand, "there is the legitimate right of a
party in anticipation of the forthcoming quasi-judicial
proceeding to prepare for the employer's defense."
N.L.R.B. v. Neuhoff Bros. Packers Inc., 375 F.2d 372,
377 (5th Cir. 1967), enfg. 151 NLRB 916 (1965). The
Board has accommodated these conflicting concerns by
permitting an employer to question employees "concern-
ing issues raised in [an unfair labor practice] complaint,"
so long as the questioning is not itself coercive in nature
'9 See also Resp. Exh. 19 (April 9, 1979. memo discussing Altman's
statement to Foreman Gerry Wenta that other employees were "picking"
on him because of his union activity).
20 Thomas represented Grainger at the hearing and on brief
21 146 NLRB 770, enforcement denied 344 F.2d 617 (8th Cir 1965).
22 Id.. 146 NLRB at 774.
W. W. GRAINGER INC.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and does not "exceed the necessities of the legitimate
purposes" behind the questioning.2 3 In addition, the em-
ployer ordinarily "must communicate to the employee
the purpose of the questioning, assure him that no repris-
al will take place, and obtain his participation on a vol-
untary basis."2 4
In defining the area of permissible inquiry, the
Board has generally found coercive, and outside the
ambit of privilege, interrogation concerning state-
ments or affidavits given to a Board agent. For such
questions have a pronounced inhibitory effect upon
the exercise by employees of their Section 7 rights,
which includes protection in seeking vindication of
those rights free from interference, restraint, and co-
ercion by their employer. Moreover, interrogation
concerning employee activities directed toward en-
forcement of Section 7 rights also interferes with
the Board's processes in carrying out the statutory
mandate to protect such rights.2 5
My recommendation is that the Johnnie's Poultry alle-
gations in the complaint be dismissed.
Turning first to Thomas' questioning of Maretick, at
the time of the questioning Maretick was not an employ-
ee of Grainger: he had previously quit Grainger to take a
job with another company. Thus the employer's econom-
ic power over employees that generates the inherent
danger of coercion was absent. Moreover, Thomas' and
Lyon's behavior was amicable and they in no way sug-
gested that Maretick's responses (or lack of responses) to
their questions would help or hurt him in any manner.
Thomas' questioning of Jaske presents a closer ques-
tion. Jaske was not an employee of Grainger on July 24
and had not applied to Grainger either for reinstatement
or for a new job.2 6 But the standard remedy in a case
such as this one includes an order compelling the em-
ployer to reinstate the discriminatee. And a discharged
employee seeking reinstatement in a Board proceeding is,
obviously, a potential employee of his ex-employer. To
some limited extent, therefore, in that situation an em-
ployer does hold some of the same coercive power over
the discharged employee that it holds over present em-
ployees or applicants for employment. But the difference
in the extent of an employer's coercive power, as be-
tween present employees or applicants on the one hand,
and, on the other, ex-employees seeking reinstatement
solely through the Board's processes, is considerable.
Under these circumstances the full panoply of the
Johnnie's Poultry requirements ought not apply. And in
the case of Thomas' and Lyon's questioning of Jaske: (I)
it was done at Jaske's home; (2) as in Maretick's case,
Thomas' and Lyon's behavior was amicable; (3) neither
Thomas nor Lyon made any threats or promises; (4) the
purpose of Thomas' questioning was self-evident; (5)
Jaske did not in fact answer any questions concerning
2J Johnnie's Poultry. supra, 146 NLRB at 775.
2 Id.
2 5 Id.
26 At the time Jaske was fired he told Owen that he wanted to speak
to a Grainger official about keeping his job. Owen set up a meeting be-
tween Lyon and Jaske. But the meeting never took place because Jaske
did not follow up on his request.
the substance of his claim for reinstatement; (6) Thomas'
questions appeared to be addressed to obtaining only
"facts concerning issues raised" in the complaint against
Grainger. 27
Under these circumstances, Thomas' questioning of
Jaske did not violate Section 8(a)(l) of the Act.
The prehearing questioning of an alleged discriminatee
by Respondent's attorney presents two problems: First,
the attorney, as agent of the Employer, represents poten-
tially coercive economic power-as just discussed. And
second, a layman's responses, absent advice of counsel,
to the questions of an attorney who represents a party
having interests contrary to the layman-employee, may
not only be damaging to the employee's interests, they
may fail to accurately represent the truth of the matter.
I have considered the lawyer-versus-layman problem
epitomized by Thomas' questioning of Jaske, and have
also considered the fact that Thomas did not tell Jaske
that his answers could be used to preclude him from ob-
taining the relief that he might otherwise gain as a result
of the Board proceeding.
But it is far from clear that this kind of problem ought
to be handled by calling Thomas' behavior an unfair
labor practice. Rather, it would appear that any unto-
ward results of attorney-versus-layman situations can or-
dinarily be dealt with more efficiently via evidentiary
rulings at the hearing and by taking such circumstances
into account when determining what weight to ascribe to
statements obtained by Respondent's attorney.
IV. GRAINGER'S CLAIMS OF WRONGDOING BY THE
GENERAL COUNSEL AND BY THE UNION
Grainger alleges various misconduct by counsel for
the General Counsel and by Local 781, including: (1) im-
properly instructing Jaske not to discuss the facts of the
case with Grainger's representatives; (2) seeking to dis-
suade Blake from testifying truthfully; and (3) improper-
ly refusing to call Blake as a witness.
As regards Grainger's claims relating to Jaske, the cir-
cumstances Grainger refers to occurred when Lyon and
Thomas made their unannounced visit to Jaske's home.
Jaske responded to Thomas' requests for information by
saying that "my lawyer," Roberta Brown (counsel for
the General Counsel), had instructed him not to talk to
Grainger's representatives. Jaske later testified that
Brown had never said that she was his lawyer and that
she had never instructed him to refuse to answer ques-
tions posed by Grainger representatives. Rather, Jaske
stated, he answered that way because he felt under pres-
sure from Thomas, with his response merely reflecting
that pressure.
I credit Jaske.
As for Grainger's other claims of the General Coun-
sel's and the Union's wrongdoing, again the evidence
fails to provide those claims with any support.
27 The General Counsel claims that the Johnnie's Poultry doctrine re-
lates to any "former employees," citing Neuhoff Bros., supra, 375 F.2d
378. But as specifically noted in the Board's Decision, that case involved
a discharged employee who, prior to his interrogation, had applied for
reemployment. 151 NLRB at 918, fn. 3.
W. W. GRAINGER, INC. 1117
V. THE REPRESENTATION CASE
Since Jaske was fired on March I because of his mis-
behavior on February 15 and not because of his protect-
ed activities, he was not eligible to vote in the May 18
election.
Grainger and Local 781 have stipulated that Robert
Bocheck was not employed in the bargaining unit on the
cut-off date for eligibility and that Local 781's challenge
to his ballot should accordingly be sustained. The record
does not disclose any ground for refusing to accept that
stipulation.
CONCLUSIONS OF LAW
1. W. W. Grainger, Inc., did not discharge Wayne
Jaske because of Jaske's protected concerted activities.
2. There has been no showing that any Grainger su-
pervisor threatened an employee with discharge because
of the employee's protected concerted activities.
3. There has been no showing that any Grainger su-
pervisor or other agent unlawfully interfered with, re-
strained, or coerced Wayne Jaske or any other former
Grainger employees in the exercise of their Section 7
rights by virtue of the manner in which a Grainger agent
interrogated them.
4. The Board agent's challenge of Wayne Jaske's ballot
should be sustained.
5. Local 781's challenge of Robert Bocheck's ballot
should be sustained.
[Recommended Order for dismissal omitted from pub-
lication.]