Keller Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 22, 1978

237 N.L.R.B. 712 (N.L.R.B. 1978)

DELCISIONS OF NATIONAL L.ABOR RELATIONS BOARI)
Keller Manufacturing Company, Inc. and ,ocal Union
No. 89, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Betty L. Haub., Alice Meyers. James Michael
Bright, James Roger East, Edward Lee Mathes,
Meredith Dale Spencer, and Gary L. Mattinlgh.
Cases 25 CA-8685 1,-2. 3, 4,-7. 8. 9, 10). 25
CA-8821,-2,-3,-4, -5, 7, 25 CA--8793, 25 ('A
8942 1,-2. -4,-5, 25- CA-8650-11. 12, 25 ('A
8636, 25-CA -- 8821-6, 25 C'A 8821 8. 25 ('A
8929, and 25 -C'A-8992
August 22, 1978
DECISION AND ORDER
By CHAIRIMAN FANNIN( ANI) MI\MBII RS JI.NKI\S
AND) Pi NI I I()
On December 7, 1977, Administrative l.aw Juede
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the General ('ounsel filed ex-
ceptions and a supporting brief. 'Ihe Respondent
filed two separate motions to strike portions of the
General Counsel's brief, to which the General ('ouIn-
sel filed a brief in response. Finally, the Respondent
filed a brief in opposition to the General C'ounsel's
exceptions.
Pursuant to the provisions of Section 3(bh) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the attached Decision in
light of the exceptions and briefs and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge only to the extent consis-
tent herewith.'
The incidents giving rise to the instant proceedings
occurred during and after a campaign beginning in
early December 1976 whereby the Teamsters sought
to organize the Respondent's employees.2 An elec-
I We herehb overrule the Respondent's motions to strike porltios *t Ilie
(eneral ('ounsel's hrief. We believe the Respondent's s;igue alleg.iiionii ol
conduct "bordering on unethical" and its disagreement with the (icielll
Counsel's interpretation of the evidence in the record do ilit 'uippolt it
motions. In any event. statements and compilations of exhibiti, includel 1t
the General ('ounsel's brief are supported adequaktel , bs the ecord .old, I
rendering our i)ecision herein. we have itndepelldeintls ex.inined ihclie :
dence.
? For mans years, the Respondent's emnplolees wAere ieprescited b lihe
(Carpenters. Osver the years. howesei- nietmbership in Ihe (';lrpeniters appIr-
ently had dwindled anid the Respondent had refused sereral requests b' tlie
Carpenters for a union-securit' clause Shortl, before the expirailon tll it,
last contract wsith the Respondernl n Novcmber tt3. 197(. the (' rpenters
notified the parties tha;t it vwas abandoning the unit and ou tli d nol Itonger
seek to represent the emplo'ees in future negotlialtil. I helaftcr r the
Teamsters. which had been ;Ipprised of the situ;tiorn, htgan i to Cilnlpllign
actively by h.ndbilling the Respondenit' pilants a ll condullillt II cnploee
meetings
tion s as conducted on F:ebruary 25, 1977, resulting
in a vote of almost 2 to I in favor of the Teamsters.
Although the ILmplo\cr filed a number of objections
to the election they have been overruled and the
'Ieamtsters has been certified.'
' lhe Respondent has filed no exceptions. 'The Gen-
eral ('ounsel, hosseveer has excepted to various as-
pects of the Administrative Law Judge's Decision,
including. his recommended dismissal of charges with
respect to 1 5 of' 2 alleged ldiscriminators discharges,
2 alleged discriminatory laayoffs, 2 of 3 alleged dis-
crimilator tralnsfetrs , and it number of alleged dis-
criminator: disciplinarn warnings and reprimands.
We find merit in some. but not all, of the exceptions.
IThe Adillministratixe lIasw Judge found that shortly
after the TIeamsters began its organizing campaign
man\ of the Respondent's foremen began to interro-
gate employees about their union sympathies. to
create the impression that their activities were under
surveillance, and to keep records of the suspected
viesss of each of its employees. Ile concluded that
"there was a substantial amount of unlawful interro-
gation . . . b tile Respondent's agents."' 4 The Ad-
minlistrative Iass .ludge found that the Respondent
committed additional 8(a)(1) violations by threaten-
ing to close the plant, impliedly threatening prounion
employees b? singling them out at employee meet-
ings conducted prior to the election, and by soliciting
the formation of a company union. In addition, we
find that the Respondent violated Section 8(a)(1 I) bs
ordering an employee to remove a union button she
was wearing., by suggesting that office employees
work against the Union or it would be "all over," and
by telling Nancy Ruth Pittman. after informing her
that it knes, she was soliciting authorization cards,
that she "ought to watch what [she] was doing."
A. EL!lor('c ent' of' P/lnm Rules
The Administrative Law Judge dismissed the Gen-
eral Counsel's allegation that the Respondent began
to enforce its plant rules ) more rigorously after the
'Ieamsters organizing effort started in early Decem-
C (''s.e 2s R(' 6Of).
4SSince It i ilppalentt Itl TIl:;in cmlplioees perceived the implementatiuon
,of whilt ssv in Lfict ssstettlll;t questioning uand recolrdkeeping about their
nltUn s'.nlipthles. uc. behlle tie hRespolndent should be ordered specificalls
it- L;eaSe nilld dlcsIsl fit II . lnllpihnilg li list' of union snmpalthizer'. in additioin
lo bhein rcquliid to csel interroeutling emplo)ees and creating the impres-
,uln of sulseulla. e ( wimn l'I,mr, (,reipant 151 Nt RB 1465 (1965)
I he AdtrinilitlaUti e I.ai Judge declined to find this violation. stating
Iht it :i Inot uIlleged il the ormnplaint. In fact. the comnplaint. with his
eprrcs permiission, aits, atlended at the hearing to include this incident.
inFor- mtIl icar.s thie Rcsponldenl hlas emplo)ed a pricedure Iof progres-
sise disiclplil e I ir each txpe if infriaction. an emplosee is given a;n oral
sitlnitge (lhicill Ittu.f Jxi s '.*riltcni .a vwritlen vuariinng tnd, finailN, if neces-
I..t\, a lepl illurll riLing I st I tcl rCprimands for the s.lme offense or
IhleCC iclpiililllds ftI all. iffeliss tlce igru nds frr terniinatiol.
237 NLRB No. 94
712
KEELLt MANIL FA(CtILRIN( COMPANY
her 1976.' le apparentll, ag c rel d x*i
dent's contention that it alwaxs had t
its emploN ees and that. thereforfe. it II
from its past practice. lie noted sev er
fore the union campaign w hen oral
given to emplo!eecs for trixial offenscs
that there wUas no consistelnt patterni
after December 1976 with respect to
written discipline. In addition. hle
credited the testimon\ of Chris (;reen
man, that he had been instructed hb,
December to increase his enforcement
and credited the testimon\ of ('harle
other foreman. that he did not recall
stressed in supervisors' meetings iI I
Finalli, the Administrativ e L aw J.udt
purported summary of a meeting o
April 4. 1977. which indicated that th
Teamsters organizing campaign \xas
document contained the followinm st;
I. How to Convert 114 plus I L
Compan?'
1. Remove those xwho are not
2. Create a disciplined enx-iroi
3. Several Emploxees have test
recently. These are teamlster lea
respond correctly and with
strength.
4. We must look for and effec
the trouble-makers.
* * *
7. If we are strong our people
will stand iup to an' teamlster thi
9. Time card padding and poet
should be concentrated o in bho
**
II. Why Are We Fifth in Group
An emplo'Ner virolale, Sec iS )(3)1and. 1 ttilhn it
response to unnllln a.cti\ i .l mtlllg its ClIi.!CCi (t i)l,
209 NlRB 165 (1974). einfd. 52i7 1 d 766 (( \ 9,
Counsel herein eutablished that Ihe palttern of dl .
mencenient *of union .tclclrti de cired frnim lit p.ellie
uniofn actl ltl a i drnltl a (iw ciae tc I 111 11iTll11iilll
s
l 11
requiring the Respniden tl sh' . th.at it nreal ed d
ed bh considerltions unrclated Io i n cinlplleei s ui
1
W
I he Administrative I .l Judge l atcid that (ilce
becaluse (I) he u, al alleged discrililii t.c an d 111LI
mons was nol binding ill the Respondenit sInae he nit
Respondent's supervinsin: aind (31 hi, a,,erti nT i
creased. in the Adilllnlslriilte i l .tiuiiIe' Lpill l
documrentars e idence in the record \ithlltch hil
credit (ireen in this matter resti oi1 doilhifu l ti ilil
necesars to reverse iI.
thi tile Respolln-
icleen hlirsh \\ith
ad not dx\ iLited
al I, s;ttices be-
\xn11111g11ns \1Cic
and co ncluded
citlhe before or
thle nllollunt ol
NFccificlill, di',-
IV. I he I oreileen uili be told in the next Fore-
man Mleetingz:
1. Ve filed oblections to the election.
. 1 here -ill be a hearine.
3 1 hese thines sometilies take a long time.
4 I he I eanisters haxe not been certified.
I llis s vxerx valuable time. I et's put it to
'I\ ork.
Ia former fort I lhc \dmiinistrati',e I au Judge found that the dociu-
lla;Ill~lCleInt n iIllenlt est ablished nothing more than union animus
t of p~int in e and that other documentary evidence did not supp[ort
s tone. St.. ian- the allegation that discipline was increased either after
dliscipline bein December 1. 1976. or after the April 4 meetings.
)ecember 197(6. Basied pon anl independent a nalx sis of the exi-
ge discounted i dcnI.Lc. le\ filld merit in the General ('ounselS's excep-
f mla -(ci tion to the Administrative Law Judge's finding that
e subject of tile dli.ciprline x-tas not used to retaliate against emnploxees
discuissed. I lihe their union actixities. It is apparent that more
Itementls: seniloi eCliplo\ees were discharged after I)ecember 1.
1,9'(. thani before. gi ,ing rise to an inference that
nlplo ecs to tile discipline as heiii, meted Out u. ith increased harsh-
ncss. Iroii records supplied hb the Respondent at
doing the joh. the hearingl and placed in the record. we havxe de-
melin t. tc inillied tht thie media;n tenure of enmploi men t with
led our strtcniilh the Respondent of those emrplo',ees terminated be-
iders. ulllst txx Ceel .Jlanu;arx 1975 and December 1. 1976. xas 4
unqtltiestioned months. while for those terminated thereafter it was I
xca andll 4 illonths. Moreover. it seeims that instances
tixelx put do,' inll x hich the Respondent skipped steps in its progres-
six e disciplinarx procedure increased follox ing the
* * adclnt of the l'canisters camlpaign. F or example uwe
hai c dctermiined that an average of about 13 uarn-
xe ill knIo\v wxe Iii s alld reiprimanllds per month \\ cre giixen bh the
real. Respondent to employees who hlad not received the
* · * pr\I cx in Itc el of discipline for thIit offense between
Julle I and [)ecemher 1. 1976. F:rom D)ecember I.
)ir worklianslip il 1976. to April 4. 1977. however. that figure increased
tli plants. to 18 and from April 4 to June 30. 1977. the figure
* , as 17. Although the Respondent asserted it had of-
Sales' ten skipped steps in the procedure where anll ermplo-
c had commiitted a particularl[ egregious violation
of a plant rule. such as timecard padding. being in
thie hreak area without being clocked out. insubordi-
dcll I)lc inll nationi or deliberate destruction of furniture, it sub-
,,,. 1 ,. , l1,[ In,
ie1,if it le (;e i.I ,mitted no objective evidence that more of these seri-
liine Afle fih ._OIn - OUS violations occurred after the start of the
8 ~~i pi 1 n8e ,l' ' canmipaign than before. Thus, a reasonable inference
hsth: .r....1 i.t ca- n he drawn that the increased number of skipped
... It.il i Cs steps x';Is attributable to the Respondent's effort to
I.'ll 1.1- "IItle C11' 111'
i bCIled, Ii 2ll hi 1t'l[1
*loil ci '.~t wle , t 1hi
it distp.no hdt in i
dli Ildll 1'C 1l
ie .c iiiiii n i111 ii1
Ilc iw- t h dlcphllarn records Acre onj tsrnppie for Ihe mnitnlh after
Jinu.lll i .I 'iT. Iit i concel.alle lthai. for Ihe pie-D)ceniber 197h period.
.eill Ill il thICIIn.ar .acttionr clinicl .a1 Inl 1i Il\ skipped tage, actuai
IN Co llnfoiritd tlih the nolrril.d procedure In .ins cie. such disnlortllln of the
[ i..llin .li th ii Ielit l.l e iaun sed woIuld h;lte tended. If ainNhing, to ha.c
[e c ill IIl incilaclllrilcnTl if the Respondent',r h.lrhlle-n prior It Ihe HuiTiil
u·tl}Jpr ll
713
DECISIONS OF NATIONAl LABOR RELATIONS BOARD
dissuade its employees from supporting the Union.
Finally, the fact that the Administrative Law Judge
found several violations of Section 8(a)(3) which in-
volved the Respondent's pretextual use of its discipli-
nary system-namely, the discharges of Edith Adam-
son, Cassie Mae Barnum, Mary Carver. Edna
Lawson, and Homer Wiseman leads further sup-
port to our conclusion that the system was being
used to discriminate against union sympathizers and
to retaliate against the employees in general for sup-
porting the Teamsters in the eledtion. Cf. Electri-FllFc
Company, 228 NLRB 847 (1977), enfd. in pertinent
part 570 F.2d 1327 (C.A. 7, 1978). Thus, in light of
the Respondent's systematic interrogation and sur-
veillance of employees and the threats directed at ac-
tive union supporters, and based on the fact that
more senior employees were discharged after Decem-
ber 1, 1976, coupled with the Respondent's failure to
show with objective evidence that the senior employ-
ees had become more deserving of discipline and dis-
charge, the fact that the Respondent skipped stages
in its disciplinary procedure more often after the ad-
vent of the union activity, coupled with the Respon-
dent's failure to show with objective evidence, such
as productivity data, that more and harsher disci-
pline was necessary, '° and the clear evidence not onl,
of animus but of the Respondent's plan to create a
disciplined environment and to isolate and discrimi-
nate against Teamsters "troublemakers" provided bh
the summary of the April 4 meeting," we infer that
the Respondent used its disciplinary system to retali-
ate against its employees' union activities, and we
find that the Respondent violated Section 8(a)(3) and
(I) of the Act.
B. Di.scharges
The Respondent does not except to the Adminis-
trative Law Judge's findings, with which we agree,
that the discharges of the following employees were
motivated by its animus toward their union activi-
ties: Edith Adamson,'2 Cassie Mae Barnum, Mary
Carver, Edna Lawson, Mary Carol Smith. and Ho-
mer Wiseman. Since the General Counsel has except-
ed to the dismissal of charges with respect to the ter-
minations of 15 additional employees, we shall
0' see Wi/loH.
4
fg (orp. Oak Apparel. Inc., 232 Ni RB 344 (1977). where
such a showing was made.
ii The Respondent contends that this document should nol relate ba;ck"
to the start of the Teamsters campaign in Deceimber 197( A', to condiut
occurring before April 4. 1977, we rely on the document onki as tendinf to
confirm our inference from other evidence in the record that the Respon-
dent used its disciplinary system to discriminate against union ss\ np;lhzers
As to conduct occurring after April 4. we disagree with the Adllnlnisr.atlse
Law Judge's finding that the document is ambiguous.
2 In our notice. we shall correct the Administralise l.aw Judge', inader-
tent failure to mention Edith Adamson as one of the discrimlln.tees
analyze the evidence for each one. In evaluating this
evidence, we cannot overlook the pervasive and ex-
tensive program of serious unfair labor practices
upon which the Respondent embarked at the incep-
tion of the Teamsters organizing campaign.
1. James Michael Bright
Bright had worked for the Respondent for slightly
more than I year. The record shows that on Novem-
ber 16, 1976, he was given a reprimand for returning
from lunch 2 minutes late. On November 20, he
signed a dues-checkoff authorization card for the
Carpenters. In addition, he testified that sometime
during the week after November 16 a meeting of em-
ployees was conducted by Robert Nolot, Respon-
dent's personnel manager, where Nolot expressed the
Company's concern that the Teamsters might seek to
represent the employees. Bright apparently spoke up
and indicated he wished to file a grievance over his
reprimand the week before. Hie repeated this desire
at a similar meeting a week later. Then, on December
15, he received a reprimand for missing the previous
2 workdays. Although he had asserted that he had
been ill and had called in, he apparently had been
observed performing construction work on I of those
dass. lie testified that upon receiving the reprimand
from his foreman, he stated, "I'm trying to get the
Teamsters in here." Later that evening. he was dis-
charged, purportedly for using the restroom without
clocking out. Our examination of the record has
failed to disclose instances prior to December 1976 in
which the Respondent discharged employees under
such circumstances.
'I he Administrative Law Judge found that even if
Bright had not engaged in union activity he would
have been discharged. We do not agree. Rather, we
believe that an inference of unlawful motivation is
warranted from the timing of and the justification for
this discharge. First. Bright was discharged within
hours after he stated to his foreman that he was
working to get the Teamsters into the plant. Second.
although. as the Administrative Law Judge found,
employees were disciplined for using the restrooms
without clocking out prior to the union campaign,
and although Nolot testified that break violations
were considered serious enough to warrant skipping
oral and written warnings, examination of the record
convinces us that prior to the union campaign Re-
spondent did not consider such conduct so serious as
to warrant reprimands without the intermediate dis-
ciplinary warnings.'3 Accordingly, we find that in
t lce recoid shows that during the period before the beginning of the
unioin campaign . I ci ontrst to the period thereafter. the overwhelming dis-
klplltl Issued in c;ases. if break sl olitllris ,isN an oral warning
714
KEI.I.FR MANUiFAC(TIURIN(i COMPANY
disciplining and discharging Bright on December 15.
the Respondent violated Section 8(a)(3) and (I) of
the Act.
2. Daniel Milchling
Before he was discharged on Fehruary 4. 1977.
Daniel Milchling had worked for the Respondent ap-
proximately 5 months. Prior to December 1976 he
apparently had never received any discipline. On De-
cember 5. 1976, he attended an organizing meeting
for employees at a local elementary school at which
he signed an authorization card. In addition. he testi-
fied that thereafter he solicited other employees to
sign cards at the Respondent's plant. On D)ecembher
6, he had a conversation with Nolot during which
Nolot disparaged the Teamsters and suggested that
Keller might close if the Teamsters hecalmle the em-
ployees' collective-bargaining representative. Mil-
chling responded that he had been a member of the
Teamsters for several years at another employer. im-
plying that Nolot's comments about the Union were
untrue. In addition, he testified to an incident in
which his foreman, Crone. took some signed authori-
zation cards from his shirt pocket.'4 That afternoon
he received a written warning. purportedly for "loaf-
ing." He also testified that at a meeting conducted bx
his foreman he had stated to the foreman. "Whx are
you scared to join the union." On Januars 4. 1977. he
received a reprimand for marking two items of furni-
ture incorrectly and supposedlx for protesting in
coarse language what he apparently felt xwas harass-
ment by his foreman. Prior to that, he had onl' the
written warning for "loafing" on his record. lie re-
ceived an oral warning on January 31 for leaving
cartons in an aisle, an offense he claimed he had
never heard of before that day. Finally, on l-ebruar,
4, he was given a reprimand for poor workmanship
and discharged. He had been assigned to staple the
backs of bookcases, a job he had seldom performed
before. and had been given no instructions as to howv
to perform it. Apparently. he had misdirected some
of the staples so that the' were driven only through
the backs and not into the frames of the bookcases.
Dismissing the General Counsel's allegation of dis-
criminatory motivation, the Administrative La\,
Judge stated that, although M\ilchling was a known
union sympathizer, his explanations of his repri-
mands for poor workmanship did not constitute de-
nials. Thus, he concluded the discharge was lawful.
We disagree. The record shows unquestionably
that the Respondent had knowledge of Milchling's
I ,Although he did not fix a preuise date for thOn, inldelt he td I ItI
occurred prior Io hi, varninng fo r "loafing" on i)eemniher
sympathies and considerable union activity. The tim-
ing of the wr itten warning for "loafing" the same day
he had had the conversation with Nolot and shortly
after the incident in which Crone had taken the au-
thorization cards from him, suggests that the warning
was unlawfullls motivated. Further, although his two
subsequent reprimands were given out of the se-
quence prescribed by the Respondent's progressive
discipliniary system. no special circumstances war-
ranting skipping from oral warning to reprimands
were advanced by the Respondent. In addition, Mil-
chling was given his last reprimand for botching a
job he had seldom performed before and for which
he had been given no instructions.i 5 Based on these
factors. we find Respondent's disciplining and dis-
charsging Daniel Milchling on FebruarN 4 was moti-
vated bh its animus toward his strong and vocal
union svmpathies and that. accordingly. it violated
Section 8(1a 3) and (I ) of the Act.
3. Chris Green
(ircen had been employed b' the Respondent
since 1971. In November 1976 he was given the op-
portunit\ to train as a foreman, apparently with an
agreement from management that he could return to
production if he was unable to do the job. He testi-
fied. and the Administrative Law Judge found, that
he participated in the Respondent's antiunion cam-
paign bh interrogating employees and keeping rec-
ords on their suspected union sympathies. In the
opinion of the Respondent. he was not a particularly
effective supervisor and on Friday., January 28, 1977,
he ,x as notified that as part of a general reduction in
the w ork force he was going to be demoted back into
production the following Monday. He was given a
choice of two jobs, one on the night shift and one on
the dav shift. He testified that he specifically refused
the night-shift job, and the Administrative Law
Judge found that he became angry and stated. "If
I'm here M\ondav. I am here. If I'm not, I'm not." He
testified that then. as he left the plant, he stated to a
foreman. "I'll tell sou now. don't come around and
talk to me about that damn union because . . I'm
strictlx union.. .. so don't even waste your breath."
Fhe next da,. Saturday,. January 29, not a working
daw for him, he was called into the plant and dis-
charged hb Nolot and John Hiseman. the Respon-
dent's plant manager. The Administrative Law Judge
found that then explained to him that they \were dis-
cha rging him because of his emotional "conduct and
attitude the daN before." Green. however, testified
l\n ci hpl,\ cr ma.i n rid itself of union adherhcni hb assigning them lt~
.,h, uherc thc, are iikek\ ,, make rmlslake, and then discharging Ihem
· hen ihe milake uilch foireeelhble mista;kes See 7 Irpcr. r. 207 NlRB
91- 114713 etnfdil n pertinent part '2 I 2d 781. 7 9( 1 7 1 ( 4 l1 'i5)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Hiseman told him that irrespective of the agree-
ment that he could return to production, the ('ompa-
ny had a policy against moving foremen back into
production jobs. The General Counsel presented evi-
dence that the Respondent in fact had moved fore-
man back into production work. Although he made
several attempts to convince the Respondent to res-
cind his discharge, including a meeting with William
Keller, the Respondent's president, Green eventually
was told that his termination was final.
The Administrative Law Judge recommended that
we dismiss the allegations with respect to this dis-
charge, concluding that Green was discharged, as
Hiseman claimed, because of his emotional outburst
on January 28. He did not, however, make a credibil-
ity finding in ignoring Green's testimony that he had
been told that the Respondent did not, as a matter of
policy, put foremen back into production jobs. He
also found no evidence in the record that Green had
participated in any union activity. Finally, he sug-
gested that on the day Green was discharged, he was
not even an employee entitled to protection under
the Act.
We find error in the Administrative Law Judge's
findings with respect to Green. His suggestion that
Green was not an employee entitled to the protection
of the Act is clearly in error. Before his discharge, his
tenure as a supervisor had been terminated and he
had been reassigned to a nonsupervisory job. Upon
leaving the plant after his demotion he made clear his
support for the union by telling a foreman not to talk
to him about the Union because he was "strictly
union." We find that an inference of unlawful moti-
vation is warranted from the fact that the very next
day, a nonworking day for Green, the Respondent
called Green into the plant to discharge him,l 6 pro-
vided him with a patently false reason, and vaguely
asserted that Green had been too emotional the day
before.' In short, we are not persuaded that the Re-
spondent would have terminated Green, whom it had
employed for over 5 years, had he not expressed his
support for the Union the day before. Accordingly,
we find that in discharging Chris Green the Respon-
dent violated Section 8(a)(3) and (1) of the Act.
4. Joseph Wayne Peele
Prior to his discharge on February 14, 1977, Peele
had worked for the Respondent for about I-1/'2
years. He testified that he had attended the organiz-
16 Hiseman admitted that he could not recall eser discharging tin emplio -
ee on a weekend, rather than waiting for the next working da,.
17 No evidence of written discipline being given to other emplosees under
such circumstances appears in the record. The Respondent did not cionltend
that Green had been abusive. vulgar. or insubordinate, just elmotional.
ing meeting on December 5, where he signed an au-
thorization card. In addition, he stated that he had
solicited other employees to sign cards in the plant
parking lot and had worn a union button to work.
Upon being interrogated by his foreman in late De-
cember. he apparently stated that he "thought the
Teamsters could help . . . as far as benefits," an
opinion he repeated to another foreman later that
da'. He testified that about a month before the elec-
tion on February 24, 1977, management began to
transfer him to lower paying jobs. His second trans-
fer on F'riday, Februarv I 1. apparently resulted in his
earning about $1 per hour less than he had earned
prior to the transfers. Although he indicated he
would accept it. he added that he "hoped the Team-
sters got in for the employees and straightened
Keller's out." TIhe following Monday, he was notified
that he was to be transferred again to a still lower
paying job. He became angry and refused to accept
it. His foreman gave him a reprimand. and he sought
a meeting with Nolot and Hiseman. 1They indicated
that they would not rescind the transfer and he reit-
erated his position that he would not accept it. The
record shows that he became extremely agitated and
refused to leave the plant stating, "All of you can't
put me out" and, "I'l will fight all of you, but I'm not
leaving." At that point he was told that he was laid
off; later his status was changed to "quit."
In recommending that we dismiss the complaint
with respect to Peele, the Administrative Law Judge
stated that, although there was evidence that the Re-
spondent knew of Peele's union sympathies, other
employees were also transferred to different depart-
ments during the weeks leading up to February 14
and hence he was not treated disparately. He con-
cluded that Peele's adamant refusals to accept the
transfer, characterized by the Respondent as insub-
ordination, provided adequate grounds for the Re-
spondent to dismiss him.
Since we believe the Administrative Law Judge
disregarded several critical factors, we disagree with
his conclusions. There is significant evidence that
Peele had actively worked on behalf of the Union,
and that the Respondent knew of this activity. More-
over, in referring to the transfers of other employees
during this period, the Administrative Law Judge ap-
parently ignored the fact that he had found that the
Respondent had, during the preelection period,
transferred Nick Edwards in retaliation for his union
activity and the fact that other witnesses testified that
prior to the election there were more transfers than
usual. Additionally, the Respondent did not explain
why it decided to transfer Peele when less senior em-
ployees were available.' Thus it is evident that when
I' , C are iuaare that the Respondent ,contends thai it considers abiliiy
716
KEI ER MANUFAC1UiRING COMPAXNY
the Respondent transferred Peele on Frida\, Febru-
ary 11, and again on the following Monda' . it sought
either to intimidate Peele or to evoke the emotional
response it later seized upon to discharge him. Cf.
Tamper, Inc... supra. Accordingly. we find that Peele's
transfers and the termination arising therefrom kio-
lated Section 8(a)(3) and (I) of the Act.
5. Alice MeNers
When she was notified on January 28. 1977. of her
termination. Alice Meyers had been employed b\ tile
Respondent for slightly over 6 months. iler union
activity consisted of signing a Carpenters dues-
checkoff card in October 1976. attenldinl the l)ecem-
her 5 Teamsters organizing mteeting. executing a
Teamsters authorization card. and soliciting other
employees to sign cards at work. She testified that
after the beginning of the Teamsters campaign she
was transferred to a lower paying job. On the last da'N
she worked at the plant. in earls January. she w;as
asked by Supervisor Mozier to transfer to the second
shift, and she indicated her disinclination to accept
that proposal. The record shows that the next daN
there was an unusually heavy snowfall resulting in
the absences of many employees. Apparentl Me\ers
lived in a relatively remote area and was unable to
drive to work. That day she notified the Respondent
that she would be absent. The next workdalv. Mon-
day, January 10. the snow was worse and she notified
the Respondent again that she was unable to come to
work. On Tuesday, she called again and spoke to her
foreman. He told her that she did not need to call in
every day because he knew she would "be back when
[she could] get out." She testified that she was unable
to get to her car, which apparently had been left bur-
ied in snow near the main road about a mile and a
half from her house, until the county plowed her
road on January 27.19 Upon returning to work on1
January 28 she was informed that she had been re-
placed because she had violated the plant rules hb
missing 2 consecutive days without calling in. She
testified that in response to her protest that there was
no way she could have gotten to work, Nolot said,
"Well [youl should have walked." It is apparent
that, during her tenure at Keller, she had ever re-
ceived any written discipline.
The Administrative Law Judge recommended that
we dismiss the allegation that she was terminated be-
and phsica[l fitnes. in addition to .eniorril. 'hen Iran.feirrir enmplor\ce
However. it offered no explanation of how these riterll .appiled to Peele
' She testified that hetween Januar\ ( .liand 27 l leT f.nll had ohlnmed
food and other necessities h\ clntlactin ne ghbhoi. Sid h\ driuli .l I.1 I
stock of canned and frozen food
'" She hiued about 32 miles from the plint
cause of her union acltivity. stating that he found no
ev idence to suggest the Respondent knew of her
union actix it'. In addition. he concluded that. al-
though the Respondent may have treated her unrea-
sonabhl . there was no evidence she was treated dif-
ferentlN from other employees.
As with the case of Peele. we believe the Adminis-
trati\e 1 a\, Judge's findings are flawed by his failure
to consider the record as a whole. First. although
with no additional facts we might be persuaded b'
his conclusion that the Respondent did not know
about M1, er's union adtivit>. since she could not re-
member an\ specific instances when she had been
obser ed bh management soliciting authorization
cards. the .Administrative I aw Judge's finding that
the Respondent engaged in systematic interrogation
and surveillance of union activities and kept records
of the union sympathies of its employees convinces
us that her relatively active support of the Union
w1ould not have been unknown to the Respondent.
Second. the discharge of Me\ers for not calling in
after betin told it vwas not necessary to do so and the
suggestion that she should ha e walked 32 miles to
work through an unusually heav snowstorm are the
clearest evidence of pretext. A pretextual reason. of
couLrse. supports an inference of an unlawful one. Ac-
cordingl . based upon the reasonable inference of
the Respondent's know ledge of her union activit)
and the evidence of pretext. we find that Alice Mey-
ers w;as terminated in violation of Section 8(a)(3) and
(I ) of the Act.
6. Betts tlaub
Prior to terminating her on January 13. 1977. the
Respondent had employed Betty Haub for slightly
over I year. 'the Administrative Law Judge found
that her union activity consisted of attending the De-
cember 5 organizing meeting and signing an authori-
zation card. Additionally , she testified that upon
being interrogated by her foreman about her union
s mpathies on January 3 she had stated. "Well, I
think [the teamsters] could do a lot of good for me.
. . []f I had the union here. I wouldn't have to
be doing all these jobs." Finally) she testified she had
participated in prounion conversations with her fel-
low employees nearly every) day and that her fore-
man generally was present during these conversa-
tions. The record shows that since before July 1976
she had had some relatively serious health problems.
having taken a leave of absence in July to undergo
surgery. She testified that on Tuesday, January 4. she
became ill and sta'ed home. The next day she called
in and told her foreman that she would not return to
work until Januar' 10. Thereafter. apparently pur-
717
DECISIONS OF NATIONAL L.ABOR REL ATIONS BOARD
suant to her doctor's instructions, she determined
that she would not be able to return to work until
January 17. Although she testified she asked her
nephew to notify the Respondent that she would be
unable to return until January 17, he apparently
failed to do so. However, the Respondent had notice
of her continued illness, as her foreman telephoned
her residence on January 7, and learned from her son
that she was at the doctor's office. On January 13.
she was notified that she was considered to have quit
her job as of that day because she had not called in
for 2 consecutive days as was required by the Re-
spondent's work rules.2" Prior to this time, she had
never been disciplined for any reason.
The Administrative Law Judge recommended dis-
missal of the allegations with respect to Haub. Al-
though he found he could infer that the Respondent
knew about her union sympathies, he concluded that
she had in fact violated the Respondent's call-in poli-
cy. Additionally, he found no evidence of disparate
treatment, stating that Respondent had always termi-
nated employees for absenteeism.
We disagree with the Administrative Law Judge's
analysis and his conclusion. It is unnecessary to infer
that the Respondent knew about Haub's union sym-
pathies since she testified that she told her foreman
about them. In addition, the timing of that conversa-
tion, which occurred on her last day on the job be-
fore her discharge, is significant. Although her at-
tempt to notify the Respondent through her nephew
failed, we disagree with the Administrative Ixaw
Judge's conclusion that the Respondent was not
aware of her continued illness. The record shows that
her foreman called her home on January 7. and was
told by her son that she was at the doctor's office. It
strains logic particularly in light of her past medical
problems to conclude that the Respondent did not
know she was still sick. Cf. Eaton Corporation, 235
NLRB 82 (1978). Accordingly, we infer that the real
reason Haub was terminated was the Respondent's
hostility toward her union sympathies, and we find
that it violated Section 8(a)(3) and (I{ of the Act.
7. Joe Foster
Joe Foster started working for the Respondent
nearly 10 years before his discharge on April 7. 1977.
During December 1976, he attended most of the
union organizing meetings, and signed an authoriza-
tion card. He testified that in February 1977, when
asked by his foreman how he thought a union could
21 She was excused from calling in in I;ilua.r 10. incc a hIeax. riio hlid
prevented many of the emploNees from getting to v ork on that dlas I has
the Respondent claimed it terminated her for not calling in on Januiar, I I
and 12.
help the employees, he responded that "[his] main
kick was the way people was treated, that [he]
thought the union could help change that" and im-
prove their earnings as well. In addition, at several
employee meetings conducted by his foreman during
the election campaign. he voiced some of his comp-
laints about working conditions at the plant. In
March, he was notified that his practice of clocking
on to a straight time pas: scale while he cleaned his
machine at the end of each day was improper. 2 2 He
testified that he had never been told about this be-
fore and that thereafter he complied with these in-
structions. On April 6, however, his assistant, Eddie
Quick, apparently punched their cards prior to their
cleaning of the machine. When he discovered this
error, he wrote "clean-up" on his card. At the hear-
ing, he stated that he was rushed and did not know
what else to do. The next day, he was notified by his
foreman and the mill superintendent, Joe Curts, that
he had made a mistake on his timecard. He ex-
plained to them what had occurred, and apparently
became angry when they expressed reluctance to ac-
cept his explanation. He was sent home. As he left
the plant, one of them said. "This is pretty serious
business." and he apparently replied, "it will be pret-
ty serious business when the union gets hold of it
too." On April 8, he was given a reprimand and dis-
charged by Nolot for his second reprimand for time-
card padding 3 and, supposedly, for threatening his
foreman and Curts the day before.2 4 Quick was given
a written warning.
The Administrative Law Judge found that Foster's
discharge was lawfully motivated, stating that there
was no evidence that he was treated disparately. He
rejected the General Counsel's assertion that the fact
that Quick received only a written warning estab-
lished disparate treatment, finding that "there is no
evidence . .. that [Quick] had a previous reprimand
within I ear for a time card v iolation." Thus, he
concluded that Foster's union activity had nothing to
do with his discharge.
There is ample evidence that the Respondent was
well aware of Foster's considerable union sympa-
thies. We believe the Administrative Law Judge
It uais explained to him that a cleanup period .as calculated into the
piece rate schedule for that Ilacllthlie
1ie hell reciesed hs fhrt leprinmand for timecard padding In September
1976( heauisie he appalrenitl had changed the speed of a machine ,without
pernilssnl I laiilnf that "slippage" had made It impossible for him to make
a piece rate.
- (On the repriiiiand ?rceli to hill on April 8. it states that on April 7 he
hald heen ahusle anrid hd threatened the supervisors with bodil' harm At
the hearilng I} -ter demd that hie aid ainilthing more than "i'm getting
prettC d.iLmi nhl Lllod 11'mi ge:llg pretts damitn tired Ilf this and things like
that" (hOher than N1losl's tesimonn that he helieved Foster was discharged
i11 part for iimsulhordlinallon. no other e\idence corrohborates the assertion on
the repriliiand thal I ioter had been aihusile or Ihreatening. Although he
testified itl the herrine ( urts aas n,: asked iabout Fosler's discharge. The
\ditinistraltic I dee.l ide noi specific credibihtit findings
718
KELLER MANUFACIURIN(i ('OMPANY
plainly erred in concluding that there was no evxi-
dence that Foster was treated disparately. He hlad
stated that there was no evidence that Quick had had
a previous reprimand for timecard padding. justify-
ing a second reprimand like Foster, rather than the
written warning he received. In fact. the record
shows that Quick had received a reprimand for time-
card padding on December 17, 1976. Thus, it is evi-
dent that two similarly situated employees were
treated differently. Moreover, although we have ac-
cepted the Administrative Law Judge's finding that
the Respondent had always been harsh with Its em-
ployees, we do not accept his conclusion that this
fact rebuts any suggestion that the apparently irra-
tional treatment of known union sympathizers in fact
can be explained by the Respondent's union anlinus.
The mistake on the timecard was readily apparent on
its face. No loss to the Respondent occurred, was
likely to have occurred, or was intended. At worst, as
found by the Administrative Law Judge, the mistake.
if undetected, would have cost the Respondent no
more than 20 cents. We also note that Foster's dis-
charge occurred 4 days after the April 4 meeting at
which techniques to harass and intimidate Teamsters
"troublemakers" were discussed. Finally. we are not
persuaded by the Administrative Law Judge's sug-
gestion that Foster's allegedly abusive conduct on
April 7 served as the reason for his discharge since
the Respondent presented no direct testimony with
respect to that incident. See Interstatc Circuit, 11 c., et
al. v. United States, 306 U.S. 208, 220 (1939). Accord-
ingly. we find that Foster's discipline and discharge
on April 8 violated Section 8(a)(3) and (I ) of the Act.
8. James East
East had worked for the Respondent about 7
months prior to his discharge on March 3, 1977. Ilis
union activity consisted of attending the December 5
organizing meeting, attending subsequent union
meetings, signing an authorization card. soliciting
other employees to sign cards at the plant, and wear-
ing a union button to work. Additionally, he testified
that he had been observed by management talking to
a Teamsters organizer at the plant gate in early De-
cember 1976 and that he had infomed several fore-
men that he supported the Teamsters, stating to one
that "if it was up to [him, he thought he] would vote
for the union." and to another that he had signed an
authorization card. On March 17, he worked on an
"antique" job where he was supposed to sand the
tops of buffets to make them look old and worn.
Apparently, he did not sand them enough and was
told to redo the job and to "cup" his hand more. 'Ihe
foreman did not, however. show him A what he expect-
ed. nor didt he inspect anN of his work until after he
had finished the joh several da,,s later. After he had
finished the job the second time. his foreman told
him he might have to discipline him for the first mis-
take. L ater that day. he gave him a reprimand for
that mistake. lie had received no discipline for poor
work prior to that time. At the end of the next day.
March 25. Ihe was given another reprimand which
stated he had not redone the job properly, and was
discharged. 'Ihe foreman who fired him did not testi-
f, at the hearing.
'Ihe Administrative l.aw Judge concluded that
last's discharge was lawful. -le found that East had
engaged in only "minimal union activity," and that,
although there was some suggestion of pretext from
the fact that IEast had not been instructed as to how
to do the job even after he was told to redo it, there
was no evidence of disparate treatment.
We disagree. First, East's union activity was more
than minimal, and there is substantial evidence in the
record that he made his prounion sympathies known
to xirtualls ester\ foreman who asked him, including
the Respondent's president's son. Second, the cir-
cumstances in which he received the two reprimands
that led to his discharge strongly suggest unlawful
motivation. 2 ' Thus. as there was no destruction of
properts involved. the Respondent deviated without
explanation from its system of progressive discipline
hb giving East a reprimand without a prior written
warning. I'he failure of anyone to instruct East as to
the proper method of antiquing the furniture also
suggests that the Respondent was building a case to
discharge him. See Iam'er, Inc., supra. The fact that
both reprimands were given to East after he had
completed the job the second time, and apparently
was no longer able to correct the alleged mistakes,
belies ans motivation to correct East's work habits
and evidences pretext. The Respondent did not ex-
plain what was uronl with East's work, nor did it
assert that the furniture had been damaged or that
the work had to he redone. Finally, the foreman who
had personal knowledge of the situation did not testi-
fy, giving rise to an inference that his testimony
would haxe been adverse to the Respondent. See In-
ter.,tate ( ircuit, supra. Accordingly, we are convinced
that the real reason motivating the Respondent to
reprimand and discharge East in March 1977 was its
hostility to his union sympathies and we find that in
doing s9o it x iolated Section 8(a)(3) and (I) of the Act.
Ilk .li dn liIx Ir.tli I a ..lIlJudC' f[indlJlg tha[t there a, no e dence of
d isparatc tre.atnl t is ritles ant Mil re the (,icner.al ( ounsel , the.or' of this
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. Roy S. Dearborn
When he was discharged on March 10, 1977. Dear-
born had worked for the Respondent for about 4
years. His union activites consisted of attending the
December 5 organizing meeting, attending some of
the subsequent Teamsters meetings, signing an au-
thorization card, soliciting other employees to sign
cards in the Company's parking lot, and wearing a
union button at work. Prior to the election, Dearborn
was singled out at employee meetings by the Respon-
dent as "the type of person who would join any-
thing," and as a "troublemaker." Dearborn testified
that he responded to this criticism by stating at the
meeting that he felt the Teamsters "would help."
Also, we have found, infra, contrary to the Adminis-
trative Law Judge, that Dearborn's layoff for I week
beginning on February 28, 1977, was in retaliation
for the Teamsters victory in the election. The record
shows that, on March 1, Dearborn came to the plant
to pick up some unemployment forms. He admitted
at the hearing that he left the plant driving fast and
that he received an oral warning for that conduct on
March 8, his second day back after the layoff. His
foreman, Gravett, testified that later that day he ob-
served Dearborn driving the Company's pickup
truck too fast in the parking lot. Gravett gave Dear-
born a reprimand which stated he had endangered
other employees and had abused company equip-
ment 26 and immediately suspended him. Later, on
March 10, he was discharged. At the hearing, Dear-
born denied that he had driven recklessly on March
8, and asserted that, in any event, other employees
had driven fast in the parking lot without being disci-
plined. Prior to this time, Dearborn had received an
oral warning on May 5, 1976, for absenteeism, an
oral warning on November 19, 1976, for abusing his
break privileges, and a reprimand on February 7,
1977, for insubordination.
The Administrative Law Judge recommended that
we dismiss the allegation that Dearborn's discharge
was discriminatory. He found that he could infer that
the Respondent knew about Dearborn's union activi-
ty. However, he credited the testimony of Gravett
and discredited Dearborn's, finding that Dearborn's
admission that on March 8 he had "hit a chughole
. . . and it revved up pretty good" was inconsistent
with his assertion that he had not accelerated too
fast. Finally, he found that Dearborn was not treated
disparately since there was at least one employee
who had received a written discipline for "hot rod-
ding" prior to the advent of union activity.27
26 Dearborn's uncontroverted testimony was that the truck ias a 1965
Chevrolet pickup truck which he had taken to a state inspection ',tation that
day. He testified further that the truck had failed to pass inspectliin
In concluding that the Administrative Law Judge
erred in recommending that we dismiss the allega-
tions with respect to Dearborn, we rely on our inde-
pendent evaluation of the evidence, parts of which,
we believe. he selectively ignored, and parts of which,
we believe, he gave unwarranted weight. First, his
finding that he could infer that the Company had
knowledge of Dearborn's union activity is an under-
statement. As argued by the General Counsel in his
brief, one hardly needs to infer knowledge of
Dearborn's activity since the Respondent in fact had
singled him out at employee meetings as a union
"troublemaker." 28 Second, assuming that Dearborn
in fact drove too fast on March 8.29 we do not believe
that the Respondent has demonstrated any special
circumstances warranting its deviation from its sys-
tem of progressive discipline by giving him a repri-
mand without an intervening written warning and by
discharging him without either a second reprimand
for the same offense or a third reprimand for another
offense. Finally, we believe the Administrative Law
Judge's conclusion that Dearborn was not treated
disparately is tainted by his apparent reliance on an
undated reprimand given to an unnamed employee.
Obviously. it was impossible to have considered all
the relevant circumstances in that case. Thus, we find
that Dearborn, a relatively senior employee, was dis-
ciplined and discharged on March 10, less than I
month after the election, because of the Respon-
dent's antipathy toward his union activity and, ac-
cordingly, we conclude that the Respondent violated
Section 8(a)(31 and (I) of the Act.
10. Gary Mattingly
When he was discharged on May 26, 1977, Gary
Mattingly had worked for the Respondent for slight-
ly under 3 years. The Administrative Law Judge
found that his union activity consisted of attending
the December 5 organizing meeting, signing an au-
thorization card, and wearing union buttons at work.
Noting that prior to the election he had been interro-
gated by his foreman about his union sympathies
while he was wearing his union buttons, the Adminis-
trative Law Judge concluded that the Respondent
: Upon cxamiinig the record. we find that, in addition to Dearborn's.
the Respondent issued an oral warning on March i. 1977. to another em-
ploxee for speeding In addition. the record contains a reprimand for spin-
ning tires and throwing rubber at a stack of lumber. but it contains neither
the na;lie of the enmployee nor ,a date.
Elsewhere in his i)ecision. the Administrative Law Judge correctls
found that lhis practice constituted ;in implied threat of reprisal and vio-
lated Sec. 8 l)(l I )
,f Allhough we consider dubious the finding that Dearborn's statement
that he had epressed the clutch and the engine had "revved up pretty good"
"when he hit a chuckhole contradicted his statement that he was not driving
too,, fast, it is unllecessars to reverse the Administrative Law Judge's credi-
hilit findings
720
KELLER MANIUFACIURING (COMPA7NY
knew about his union sympathies. In addition. the
record shows that at an employee meeting conducted
by the Respondent. a supervisor singled out Matting-
ly as a union "troublemaker." stating that "he liked to
put in five hours, but get eight hours pa!\ out of it."
During the relevant period, Mattingl performed twxo
jobs for the Respondent. one which involved drixing
a truck between the Respondent's two plants and one
which involved operating a "toy, motor" at one of
the plants. Since the two jobs paid at slihtll differ-
ent rates. Mattingly was required to record on his
timecard the correct time spent on the respective
jobs. On December 7. he received an oral warning.
apparently for failing to complete his timecard prop-
erly.30 On May 10. 1977. he was given a reprimand
because he apparently had failed to fill out his card
during the day. instead having waited until his break
or until the end of the day. His foreman informed
him that this was unacceptable because he might
have been timecard padding: the Respondent sub-
mitted no evidence that in fact he was cheating on
his timecards. Mattingly testified that he had xaited
until it was convenient to fill out his card each da\
for almost 2 years before anything was said to him
about this practice. On May 24, Mattingly received a
message that his father needed help. With his
foreman's permission, he left the plant. but appar-
ently forgot to clock out. The next day. he was in-
formed of this error, and he wrote on his timecard
the time written on the emergency message he had
received from the secretary the day before. His fore-
man indicated that he might be fired over the inci-
dent. The next day, May 26. he was given a repri-
mand for not clocking out on May 24. and was
discharged.
The Administrative Law Judge found no violation
of the Act on these facts. Stating that Mattingly was
"not shown to be particularly active on behalf of the
Union," and that other employees had been dis-
charged for timecard padding prior to the organizing
campaign, the Administrative Law Judge concluded
the Respondent did not treat him disparately. and
had adequate cause to discharge him.
We do not agree, because again we believe the Ad-
ministrative Law Judge ignored critical facts in the
record. Although he concluded that Mattingly was
not a particularly active union supporter. it is abun-
dantly clear that the Respondent thought Mattinglx
was a union leader since it singled him out in front of
' Although prior to his discharge he had recec ed ..a lginlflc..all .miiuml [
discipline, most of it occurred after the start of the I ea.nster,. . impal i I or
example, in addition to the discipline for timecard padding. he hld recei.ed
oral and written warnings for poor work (prior to December 19761 all oral
warning for loafing (in May 1977), an oral warning for ah,enlteel,n (,I.
February 1977). a written warning for insuhbordinaillin (in ma. 19i 7). an1 d i
reprimand for insubordination (in April 19
771
his fellowx emplo,,ees. In addition. the circumstances
of the two reprimands leading up to his dismissal
suggest not only pretext. hut disparate treatment as
,well. Hlis conduct leading up to the reprimand of
Man 10 xerx ,well man havc called for discipline.
Howxever. the Respondent offered no reason for skip-
ping from aln oral wxarning to a reprimand. F urther.
the circiiumstlances of the May 26 reprimand exemplify
the tA pe of irrational treatment we believe transcends
the Respondent's traditional harshness. Mattingly
left the plant with the permission of management. In
his haste. he neglected to clock out. lUpon returning
the next da\l and being told of his error. he suggested
using the time written on the message given to him bh
the Respondent's secretary when he notified him of
the emergenc\. Inexplicably. the Respondent de-
termilned that this w\as unacceptable and discharged
him. Although the Administrative law Judge is cor-
rect in noting that the Respondent always had dis-
charged emploees for repeated timecard violations.
our examination of the evidence convinces us that
rarely. if ever. were employees disciplined in cases of
inadlertent and easily corrected error, such ilas here.
Rather. the Respondent was concerned primarily
with intentional attempts to circumvent its piece rate
sxstemi. I hus. x.re reject the conclusion that there was
no disparate treatmient. Particularly in light of the
Respondent's implied threat of reprisal against Mat-
tinglx when it singled him out at the employee meet-
ings several months before his discharge, we believe
his firing was motivated by the Respondent's union
animus. Accordingly. we find that when it disciplined
and discharged him in May 1977 the Respondent
violated Section 8(a)(3) and (I) of the Act.
II. Ruth Ann Harbaugh
When she was discharged by the Respondent on
December 30. 1976. Harbaugh had worked for the
Respondent for slightl\ over 5 years. The Adminis-
trative L aw Judge found that her union activity con-
sisted of attending the December 5 organizing meet-
ing and signing an authorization card. Although she
testified that she was interrogated by her foreman,
she stated that she never told anyone in management
about her union sympathies. The Respondent
claimed it discharged her for excessive absenteeism.
The Administrative Law Judge found that she had
missed 24 hours in October, 24 hours in November.
and 8 hours in December prior to missing work on
December 28 and 29. In addition, the record shows
that she had received a reprimand on February 3.
1976. for excessive absenteeism.
TIhe Administrative Law Judge recommended that
we dismiss the allegations with respect to Harbaugh,
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding her discharge justified by her conduct in light
of Respondent's past practice of disciplining employ-
ees for excessive absenteeism. He rejected her general
assertion that another employee had been absent
more than she and that he had not been disciplined,
because she was unable to give more than her general
impression of his attendance record. In addition, the
Administrative Law Judge concluded that, because
Harbaugh's foreman was frank in testifying about his
unlawful interrogation of employees before the elec-
tion, his failure to mention an antiunion motivation
underlying her discharge indicated that there was
none.
Although we agree with the Administrative Law
Judge's conclusion that no violation occurred. we
disavow his statement that had there been an antiun-
ion motive Harbaugh's foreman would have said so.
Nevertheless, it is clear that because her union activi-
ty was minimal and she stated she concealed her
sympathies from management. an inference of
knowledge on the part of the Respondent would he
strained. Moreover, her poor attendance record, in-
cluding the reprimand the previous February. sup-
ports the Respondent's contention that it mvwas not
motivated by union animus. Accordingly, we shall
dismiss this aspect of the complaint.
12. Edward Lee Mathes
Mathes had worked for the Respondent for over 4
years when he was discharged on December 1, 1976.
He had received his first reprimand for timecard
padding on August 19. 1976. In earls September
1976, he participated in a meeting with the Respon-
dent's president, Keller, wherein a number of em-
ployees threatened to walk off the job o ver allegedly
unfair reprimands for timecard padding which had
been given to two employees. At the meeting, Keller
apparently stated, "Walk out, I'll nail the doors
shut." 31 Subsequently, Mathes became a steward for
the Carpenters, and processed a number of griev-
ances. On November 25, he had a conversation with
his foreman in which he was told that management
had been "watching" him and that he had made a
mistake on his timecard the previous week by count-
ing more pieces than he had actually produced. The
following Monday he was notified that the problem
had been "resolved." Several days later, however, on
December 1, he was discharged, purportedly for the
"resolved" timecard-padding incident. At the hear-
ing, Mathes denied that he had made a mistake on
his timecard.
1 This incident was not alleged to he an unfair lihor pr.tic, huill rather
was offered by the General Counsel to shoew that the Respondentl ; is av a;re
of Mathes' willingness to engage in concerted a:ctivlit
We agree with the Administrative l.aw Judge's rec-
ommendation that we dismiss the allegations with re-
spect ot Mathes. The General Counsel theorized that
because of the September incident and Mathes' stew-
ardship with the Carpenters he was known to be a
person inclined to engage in concerted activity, and
that the Respondent thus discharged him to rid itself
of a potential Teamsters activist. Although the cir-
cumstances of his discharge are somewhat suspi-
cious, we do not believe there is sufficient evidence to
tie his discharge to his union activity, nor are we per-
suaded by the General Counsel's theory. particularly
since he was discharged several days before the
Teamsters began to campaign actively at the Re-
spondent's plants. Accordingly, we shall dismiss this
aspect of the complaint.
13. Meredith Dale Spencer
Prior to being discharged on March 11, 1977,
Spencer had worked for the Respondent for over 3
\ears. The Administrative I.aw Judge found, and the
record shows, that his union activity consisted of at-
tending the December 5 organizing meeting and
signing an authorization card. Although he was inter-
rogated by his foreman about his union sympathies.
he testified that he never told management about
them. In fact, he testified that he had disclaimed any
interest in the Union. and that on the day of the
election his foreman actually had encouraged him to
vote. After missing a number of davs shortly after the
election in February 1977, he was discharged, pur-
portedly for not calling in the absences.
Although it is evident that the Respondent deviat-
ed from its normal procedure in terminating Spencer
without giving him a written warning and two repri-
mands, 2 he apparently had had significant problems
with his attendance, and he admitted he did not call
in manv of his absences. In addition, it is unclear
whether Respondent knew about his relatively mini-
mal union activity. The fact that his foreman encour-
aged him to vote suggests that, in fact, the Respon-
dent thought he was not a union supporter.
Accordingly, we agree with the Administrative Law
Judge that the General Counsel did not sustain his
burden of proof, and we shall dismiss the allegation
with respect to Spencer.
14. Constructive discharges
The General Counsel contends that several em-
ployees were constructively discharged. Conceptual-
ly, constructive discharge occurs when an employee
O(ur eas.lllnation of tihe record sho'ws that recentil he had been given
nI trtal atnrilg .a.bout riot tlaling inl his absences
722
KELLER MANUFACIURIN(G (COMPANY
quits "[because] an employer deliberatel makes Ihis
or herj working conditions intolerable. J. P.
Stevens & Co., Inc. v. N.L.R.B.. 461 1:.2d 49)0. 494
(C.A. 4, 1972). It becomes unlawful when this is done
because of an employee's union activitN. Id. Accord-
ingly, when it is shown that an employer imposed
onerous working conditions on an emplosee it knew
had engaged in union activit). which it reasonabl;
should have foreseen would induce that emploee to
quit, a primna facie case of constructive discharge is
established. requiring the employer to produce evi-
dence of legitimate motivation.
a. Ruh, Milchling
Before she informed the Respondent that she had
quit on December 27. 1976, Rub) Milchling had
been employed at the plant for slightl ov er I sear.
The Administrative Law Judge found that her union
activity consisted of attending the l)ecember 5 orga-
nizing meeting, signing an authorization card. and
soliciting other employees to sign authorization cards
at the plant. Additionally. the record sho is that on
the day after the December 5 meeting she told her
foreman, Chris Green, that she had signed an author-
ization card. and that Green reported her prounion
syNmpathies to the Respondent's personnel illnatci'.
Nolot. At the time, she was working on a three-pe--
son operation and was compensated pursuantIl to tile
piece rate svstem. Apparentl\. one of her fello\\ em-
ployees was a trainee. Then. on December 26. she
was asked to train another wouman in addition to the
person she already was training. She protested that
"if I got to train two people at one time. I just don't
think I could take it," hut agreed to trv to work x ith
the two trainees. Milchling testified that the new per-
son had some difficulty performing the job. and
when she learned that the new trainee hatd been
criticizing her behind her back she became upset and
decided to quit. Her foreman and Nolot attempted to
persuade her not to resign. but, the next das. she
notified the Respondent she had quit.
The Administrative Lass Judge recommended that
we not find that MilchlinEg was constructisel\ dis-
charged for her union activit\. Although he found
that the Respondent knew about her union activit\.
he concluded that her actix it w;as minimial. In addi-
tion, he found that Milchling actualls quit her job
because of a personal conflict with her neA traiiee.
rather than an intolerable condition intentionalls
created by the Respondent.
Although we disavow his reliance on his finding
that Milchling was not a particularl? acti e union
supporter 33 we agree that Milchling was not con-
structivel, discharged for her union activity. We do
not believe that the conditions created by the Re-
spondent. which Milchling claimed put her under too
much pressure, were so intolerable as to have reason-
abls caused her resignation. Although she testified
that she Aas losing money because she was training
two people while on a piece rate. there is nothing in
the record which establishes that she in fact was
being paid a piece rate other than her statement that
"as far ais [she knew. shel was working on a piece rate
joh." Since she also testified that she never before
had been required to train employees while being
paid a piece rate. we cannot conclude that she was
being asked to) take a decrease in pay hereY More-
o cr. the record sho\, s that her primar, quarrel with
her ness trainee concerned the trainee's derogators
commlenits about her to other employees. 'There is no
basis in the evidence for attributing to the Respon-
dent the stressful situation resulting in Milchling's
resignation. Accordingll , we shall dismiss this aspect
of the complaint.
b. 71chmt Barnctl
Prior to quitting het job on December 13. 1976.
Barnett had xx worked for the Respondent for about 5
ears. T he Administrative lIaw Judge found that her
union acti' it- consisted of attending the December 5
organizing meeting and signing an authorization
caird. In addition, he noted that she had told mem-
hers of matlnagement at an emplo ee meeting that she
had been a Teamsters member at another plant and
that she xwvas "proud of hav e served" with the
l nion." I he record shos. s that in November she re-
cei ed an oral warmin for poor wvork. and that in
earl- December she received a written warning and a
reprimand for poor work. At one of the meetings
held bh management to dissuade employees from
supporting the lTeamsters. several employees ex-
pressed concern about Barnett's precarious position.
since she had recentlI received the reprimand for
poor work. Nevertheless. on December 13. she was
assigned to a sanding job. Apparently she was slow
and her foreman sait and watched her for about 10 to
15 minutes before suggesting \vays she could increase
her production. At that. she became upset and
sought a meeting vwith the plant manager. Although
the plant manager offered her another job. she indi-
cated she could not perform that one either. At that
point. she left the plant and apparently has not re-
turnedI.
On these facts. we agree with the conclusion that
i 5he rcCldl hrc 1 iMsll. itl.cl1t . Cot.hi'll,. /r"th .p.m.. that he ' ,c.its
trc.lcd h, sp r.loe [
Shl t,1111f:J 1. hild t1 ,l LI tc-... rd *lth the I eanilr, for 7 \cars
723
sh, 1, !If, Cd that II Ci h'Id -II, ~ii IC d ll 1 l I, II -1 IdIJ
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel did not establish a constructive
discharge. Although the Employer undoubtedly had
knowledge of Barnett's considerable union sympa-
thies, the problems with her work performance began
prior to the union campaign. Moreover, we do not
believe that record shows that such intolerable condi-
tions were imposed that the Respondent should rea-
sonably have expected her to quit. Accordingly, we
shall dismiss this aspect of the complaint.
B. Lqaoffs
1. Roy Dearborn
We have already found that Roy Dearborn was
discharged on March 10 because of his union activi-
ty. In so finding, we noted that prior to the election
the Respondent had impliedly threatened him with
reprisals by singling him out in front of other em-
ployees as a "troublemaker." Additionally. the rec-
ord shows that on the day before the election his
foreman, Gravett, told several employees that thec
"would have a better chance of working if the union
didn't get in" and that they "could be laid off." He
concluded by telling the employees that on the Mon-
day following the election they should "come in to
work to see whether [they were] going to be laid off
or not." The Monday after the election, the eight em-
ployees in Dearborn's department were notified they
were laid off. Three of them, including Dearborn,
returned to work the next week. The Respondent as-
serted that in laying off the department it was moti-
vated only by business reasons.
The Administrative Law Judge recommended
against finding a violation. He found Dearborn's tes-
timony concerning the alleged threat by Gravett gen-
eralized and accepted the Respondent's defense of
business justification based on what he found was
uncontradicted testimony that business was slack. Fi-
nally, he was persuaded by the fact that only
Dearborn's layoff was alleged to be unlawfully moti-
vated, when there were seven other employees who
were laid off at the same time.
We disagree with the Administrative Law Judge's
analysis and conclusion. At the hearing. Gravett did
not deny making statements about the imminent lay-
off although he did deny making any specific threats.
Contrary to the Administrative Law Judge, we be-
lieve a conclusion that an implied threat of retalia-
tion is warranted from the record. Moreover, we are
not persuaded by Respondent's purported business
justification. Dearborn testified that during the pe-
riod of the layoff, he had observed other employees
doing work in his old department. In addition, we
note that at least three of the eight employees in the
department were laid off for only I week. Finally. the
fact that the layoff of only Dearborn was alleged to
violate the Act does not preclude a finding of dispa-
rate treatment. The Respondent has asserted that it
regularly transferred employees based. among other
things. on their seniority. Thus, in February 1977 it
could have been expected that, rather than lay off
more senior employees, the Respondent would have
transferred them to other positions occupied by less
senior employees. Except for Charles Atwood and
Nick Edwards, apparently only Dearborn had suffi-
cient seniority to bump other employees in the plant.
Atwood and Edwards took vacation time, apparently
anticipating the layoff.3 6 The next week the Respon-
dent transferred Dearborn and two other employees
laid off the week before to another department. In
any event, we believe that an inference is warranted
that but for the Teamsters victory in the election
more senior employees such as Dearborn would have
been transferred to other jobs, as they were a week
later, rather than being laid off. Accordingly. we find
that the layoff of Dearborn was in retaliation for the
Teamsters victory and for his specific union activity
and thus we conclude that the Respondent violated
Section 8(a)(3) and (I) of the Act.
2. Tambra Crecelieus
Prior to being laid off in April 1977, Crecelieus
had worked for the Respondent for about 8 months.
The record shows that she attended Teamsters orga-
nizing meetings, signed an authorization card, and
wore union buttons at work. She testified that in ear-
ly April she was transferred to a job which required
heavy lifting. The record shows she is 5 feet tall and
weighs "almost" 100 pounds. After she began to
have difficulty with the job, she was laid off, suppos-
edly because Respondent did not have any work she
was physically capable of performing.
Although he inferred that the Respondent knew
about Crecelieus' union sympathies, the Administra-
tive Law Judge concluded that her activity was mini-
mal. In addition, he found that her transfer was law-
ful since it was not alleged as a violation of the Act
and concluded that therefore her layoff must have
been lawful.
W' c are fully cognli7ant of the Respondent's assertion that the General
('OUllsel in mi;king this argument attempted to introduce new evidence into
the recird I'he Respondent states that it could find "absolutely no evidence
in the record about whll Atw .ood did. the seniority of the other employees
laid oiff, or a hcther thec could have been transferred to factory jobs." How-
ever. the tctiirnon olf Nick Edwards fully supports the claim that Atwood
itovk .acaition time and ve believe that the fact Ihat Edwards and Dearborn
were Ir.ansferred to) another job the next week gives rise to an inference that
tIhee cliuldi hi.lc been transferred the week before. In any event, the General
(' unscl's fltluic ti allege ever', violation of the Act does not. In and of
itself. rcfulte an alleglation of dispalrate treatment
724
KELLER MANUFIACTULRING (COMPN'APAN
We find error in the Administrative I.aw Judge's
analysis. In view of the Respondent's widespread uln-
fair labor practices. we believe it is unnecessars for
an employee to have been "one of the dri Ming forces"
in the organizing campaign to be an ob.ect of the
Respondent's discrimination. Moreoxer. whether or
not her transfer was alleged to be in violation of the
Act, we have found that the Respondent transferred
other employees to harass and intimidate union sup-
porters (the cases of Nick Edwards and i'Waine Peele.
supra. are illustrative). Since her transfer. when other
less senior employees were not transferred. was not
explained and the issue was full\ litigated. we coln-
clude that the transfer, proximate to the April 4
meeting, was motivated by the Respondent's union
animus. Accordingly, we find the Respondent \io-
lated Section 8(a)(3) and (1) of the Act hx transfer-
ring Crecelieus to a job she was ph! sicall\ incapable
of performing and then laving her off hen she
proved incapable of performing it. Ct. 1mnrpci,. Im,..
supra.
C. Tran.sf'rs
1. Nicky Edwards
The Administrative Law Judge found. and we
agree, that Respondent transferred Nick\ Edwards
because he had passed out authorization cards the
day before. We disagree entirely. however, with his
conclusion that Edwards' subsequent transfers
should not be remedied by our Order. He noted that
Edwards had bid on a job., apparently finding that. in
doing so. Edwards somehow had waived his righits
under the Act. Since it is evident that Edwards would
not have bid on another job had he not been trans-
ferred from his original job, we shall not, as the Ad-
ministrative Law Judge recommends, toll our remedN
as of the date Edwards transferred to tile job on
which he bid.
2. Sarah Sizemore
Before her transfer on January 2, 1977. Sizemore
had been an officer for the Carpenters. had partici-
pated in negotiating sessions as a Carpenters repre-
sentative, had attended several Teamsters organizing
meetings. had signed a Teamsters authorization card.
and had solicited other employees to sign cards at the
plant. In addition, she testified that. in November
1976, she was interrogated by a foreman about her
union sympathies. On January 2. she was transferred
to a job which was one pay class below her current
one. She was told that as part of an economrs drive
her old job was going to he downgraded five steps.
Nceerth eless. she testified without contradiction that
after her transfer other persons performing the work
she h;ad pre i ousl% done w ere compensated at tile old
rate.
I he Adminlistratix l.c aw .ludge recommended that
we dismiss the allegation that Sizemore's transfer was
iotix aited hb her union activit. Although he con-
ceded that she ,,as known by the Respondent to be a
unimon supporter. he apparently accepted the Respon-
dent's proffered business justification. FinalKl. he
colncluded that to find a violation here would pre-
clude an emplov!er from ever making business deci-
sions hXlich affect union supporters after the begin-
nimg of an organizing campaign.
We disagree because we believe he has misinter-
preted thie e idence and misconceived the General
Counsel's arlumients. Since the General Counsel es-
tablished the Respondent's knowledge of Sizemore's
union s! mpathlies. its animus toward the Union in
general. and its action w hich had an adverse impact
on Sizemore during the height of the election cam-
paigni. we believe it was incumbent on the Respon-
dent to shouw a legitimate business reason " justifying
its actions. The Respondent contends it transferred
Siiemiore because it sought to downgrade her old job
in order to save lone!. Wcere that true, the Respon-
dent max hax e rebutted the General (Counsel's prima
lwicie case. Sizemore, how ever. testified without con-
tradictionr that her old job xuas not downgraded and
that persons performing it after her transfer contin-
ued to hbe compensated at the old rate. 8 Thus. we
find that the Respondent's purported business justifi-
cation is unsupported by the record. Accordingly, we
find that. in transferring Sizemore on January 2.
1977. the Respondent xiolated Section 8(a)(3) and (1)
of the Act.
i). .S, c!lic Ii lncidct.e r f .htbuse of 1tie Discipllaurv
I hie \dmlinistrative Lawu Judge found, and we
agree. that Niclk I.dwards was reprimanded on De-
ccmber 7. 1976. in \ lolation of Section 8(a)(3) and ( 1
of the Act. I-or the reasons stated hereinafter, how-
cver, e c disagrce with his conclusion that Nancy
\\. C hdirc o. lludcd, t1h/rp hat tie Re.pondent'u rlcinice 1on it, con-
Ctclillo 1l I 11 hld 'i. ,a\1 x il.anifcrrcd peorpl roltllck IS ' .l thut nlcrlt.
si n,lt . li, f-o n .i I rml,l1 Cr if xpecrif intrnrce, cIrrboor.led hN other
tCstlIOllIi: ,hlrC Ihei Rc.prlidclnt transferred emplosees to d iscourarge
HlnJOD1 .ilkt1l114
' c xdlrlrnlmtlaie I. xi .id? recitt d the (cnerdal ( oullel's .argu-
n11'inl Ilthi ll t, 1.lt hl.it til RCrpouidrll did 11 l 1 , r fer Slzemore the Jdo,n-
eFr idcd pnrrnl l sho- s i , drn.irutnrilllrlurltonr lin, reasonlnlrg th.a helusne
it lffcld ier .t h one Ic hol',n her oId one it a.is nol required to offer
her ., li, n luh , i k i t stec\ hkcoNx heil olr d onic ti- ener. we hehllee Ihe
(Iennr¢Il J ( r o1 l el ali olllncirtdr [ Iab t-, thl e rac Ihe RespoIndent cnll rinued to
1'i' tie od .rle 1.. elplos CC peik.rl i ltm th suipposeadtl drm*ngr.ded lob
725
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruth Pittman, Barbara Jean Miller, and Sharon Sny-
der were not disciplined because of their union activ-
ities.
1. Nancy Ruth Pittman and Barbara Jean Miller
The cases of Pittman and Miller will be considered
together since they worked and were disciplined to-
gether. In December 1976 Pittman had worked for
the Respondent for 6 years. She had been a steward
with the Carpenters and testified she had attempted
to process a number of grievances. After the Team-
sters began to campaign early in December 1976. she
attended several of its organizing meetings and solic-
ited authorization cards in the Company's parking
lot. Finally. she testified that a few weeks after the
start of the Teamsters organizing campaign she was
approached by her foreman who said, "I see you are
signing people up" and that she "ought to watch
what [she wasl doing." 39 In December 1976 Miller
had worked for the Respondent about 7 months. She
had been an officer with the Carpenters and had par-
ticipated in a number of negotiating sessions with the
Respondent. Like Pittman, she attended the Team-
sters organizing meeting in early December and
signed an authorization card. Although she denied
she ever revealed her union sympathies. she testified
that she was interrogated by her foreman about them
nearly every day. Prior to December 1976 neither
employee had received any discipline for poor work
for at least I year. On December 13 they both were
given oral warnings for poor workmanship on a proj-
ect on which they both had worked. After Pittman
apparently admitted responsibility for the mistake,
the Respondent claims, it expunged the oral warning
from Miller's record. On December 15, however, the
plant manager inspected some pieces the two em-
ployees had been producing and found that some of
them were defective. An oral warning was issued to
Miller and a written warning was issued to Pittman.
They both testified, however, that never before had
the quality of their work been checked by manage-
ment before they had had a chance to inspect it
themselves.
The Administrative Law Judge cryptically recom-
mended that we dismiss the complaint with respect
to the December 15 oral and written warnings. He
stated that the General Counsel had failed to estab-
lish that the Respondent was motivated by union an-
imus and that, in any event, the employees had ad-
mitted doing poor work.
It is self-evident that the Respondent knew about
; We have found, supra. that this coln'ersalion ci,ntituted an implied
threat of reprisal.
Pittman's union activity and we have found that it
threatened her about it. As to Miller. an inference of
knowledge is warranted from her testimony that she
was interrogated repeatedly about her union sympa-
thies. We find that the Administrative Law Judge ap-
plied an erroneous standard to the evidence involv-
ing these allegations. Both employees testified,
without contradiction. that the normal procedure
was that they could inspect their work before sending
it to the next department. The Respondent, however,
denied these employees this opportunity. As the Re-
spondent offered no explanation for this change in
practice. we find it was implemented in order to es-
tablish a pretext for disciplining Pittman and Miller.
Accordingly, the warnings issued to them on Decem-
ber 15 violated Section 8(a)(3) and (I) of the Act.
2. Sharon Snyder
Snyder was hired by the Respondent in June 1976.
Her union activit, consisted of attending the Decem-
ber 5 organizing meeting, signing an authorization
card, distributing at least 50 cards to other employees
at work. and wearing union buttons at work. In addi-
tion, she was singled out by the Respondent as a
"troublemaker" at a preelection meeting.40 Finally,
her foreman, Chris Green, testified that he had been
told to watch her and to issue her discipline if she
"messes up." ' Both a written warning given to her
on December 8 and a reprimand given to her on May
16 are alleged to have been motivated by the Re-
spondent's hostility toward her union activity. On
December 8 Snyder and her partner were given writ-
ten warnings for poor work. Snyder testified that the
Respondent would not accept her explanation that
she had not worked on the allegedly defective doors.
The record does not disclose that either Snyder or
her partner had received previous oral warnings for
poor work. On May 16. Snyder received a reprimand
purportedly for poor work. She testified that before
she started it she had told her foreman. Roberts. that
she did not have enough experience on that job to
perform it correctly, but that, nevertheless, he told
her to do it. Later, another foreman. Mathes.
checked the job and discovered some defects which
he apparently corrected himself.42 Several days later
she was given a reprimand. She testified without con-
tradiction that many other employees have had simi-
lar problems with that job and that none of them has
been disciplined.
Fhe Administrative Law Judge concluded that nei-
'A e hia.e found. lqpra. th ,t this c.nidul constiluted an implied threat
Althiouh he discredited G(recn i1 Ihe issue of hether there uas in-
tctese d dJiLclplIe arlter Detetllter 197., the Admiilstratie Lax, Judge did
not specificall. discredit this ltetimont
Nel her ,ohert, nor Mathes as cAled to te.tifx
726
KELLER MANUFACTURIN(i COMPANY
ther the written warning nor the reprimand was moti-
vated unlawfully. Without specifically analyzing the
facts, he noted that the Respondent had alwayxs disci-
plined employees for poor work. and that Snyder had
admitted doing poor work.
For the reasons stated in our analysis of the disci-
pline given to Miller and Pittman. we disagree with
the Administrative Law Judge's conclusional finding
that because the Respondent had always disciplined
employees for poor work the conduct here is insulat-
ed from scrutiny. The record shows not only that
Snyder's considerable union activity was known to
the Respondent but that she had actualli been
threatened about it when the Respondent singled her
out as a "troublemaker." The December 8 written
warning, proximate to the beginning of the Team-
sters organizing campaign. at which time she distrib-
uted about 50 authorization cards. suggests an un-
lawful motivation. Moreover. regardless of whether
she actually did the allegedly poor work. the Respon-
dent did not explain why it skipped an oral warning
and gave her a written warning. rather than conform-
ing to its system of progressive discipline. Thus. we
conclude that the real reason for her written warning
was her union activity. As to the May 16 reprimand.
we note that she was assigned to the job she allegedly
botched notwithstanding her professed inexperience
on that job. Further. she testified without contradic-
tion that other employees had had similar problems
with that job and had not been disciplined. Finall.
an inference adverse to the Respondent is warranted
from the Respondent's failure to elicit testimony
from any member of management involved in the
May 16 reprimand. Intersrate (Circuit, mstpra. Accord-
ingiy, we find that in giving the written warning and
the reprimand for poor work to Snsder the Respon-
dent violated Section 8(a)(3) and (I) of the Act.
Co-N( t sIoNS of1 1. \xu
I. The Respondent, Keller Manufacturing Com-
pany, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union, Local Union No. 89. International
Brotherhood of Teamsters, Chauffeurs. WVarehouse-
men and Helpers of America, is. and at all times ma-
terial has been, a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating employees about their union
sympathies, by creating the impression those activi-
ties were under surveillance. and bh keeping records
of the union sympathies of its employees. the Re-
spondent violated Section 8(a)(I) of the Act.
4. By threatening employees with plant closure.
discharge. or other reprisals because of their interest
in or actix ity on behalf of the above-named labor
organization. or to encourage antiunion activity, the
Respondent violated Section 8( a )( I) of the Act.
5. By promoting or attempting to promote the for-
mation of a comnpani -assisted labor organization, the
Respondent violated Section 8(a)( I) of the Act.
6. Bv increasing the incidents and severity of the
discipline it imposed because of the union activities
of its employees, the Respondent violated Section
8(a)(3) and (I) of the ,Act.
7. B' discharging Mar, ('ar)ol Smith. Mars Car-
xer. [:dna t.awson. I lomer \Wiseman, Edith Adam-
son. ('assie Mac Barnum. James Michael Bright.
Daniel Milchlinlg. Chris Green. Joseph Was ne Peele.
Alice Meyers. Betty Ilaub. Joe F:oster, James East.
Ro) S. Dearborn. and GiarN Mattingl) because of
their union activities. the Respondent violated Sec-
tion 8(a)(3) and (I) of the Act.
8. Bx laying off Ro'x Dearborn and Tambra C(re-
celieus in retaliation for their union activities and for
the employees' union activities in general, the Re-
spondent violated Section 8(a)(3) and (I) of the Act.
9. B, transferring Nicky Edwards. Sarah Size-
more, Tambra Crecelicus, and Joseph Wayne Peele
to less desirable jobs because of their union activities.
the Respondent violated Section 8(a)(3) and (I) of
the Act.
10. B), disciplining Homer Wiseman. Mary Car-
ver. Edna Lawxson. ESdith Adamnson, Cassie Mae Bar-
num, Nick,, Edwards. James Michael Bright. Daniel
Milchling, Joe Foster. James East. Roy S. Dearborn.
jar,, Mattingly. Nancy Ruth Pittman. Barbara Jean
Miller. and Sharon Snldcr in retaliation for their
union activities, the Respondent violated Section
8(a)(3) and (1) of the Act.
I 1. Fhe aforesaid unfair labor practices affect
conmmerce within the meanintg of Section 2(6) and (7)
of the Act.
' iiF Rfi ae I)>
Having found that the Respondent engaged in un-
fair labor practices in \ iolation of Section 8(a)(3) and
(I) of the Act. we shall order that the Respondent
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act. Accordingl,, we shall order the Respondent to
offer those emplo yees found to have been discrimi-
natorilN discharged, laid off, or transferred immedi-
ate and full reinstatement to their former positions
or. if those positions no longer exist, to substantially
equivalent positions. without prejudice to their se-
nioritv or other rights and privileges. and to make
them -xholc for iln loss of earnings they may have
suffered as a result of the discrimination practiced
727
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
against them, plus interest, in accordance with the
formula set forth in F. W. Woolworth Company., 90
NLRB 289 (1950), and Florida Steel C'orporation,. 231
NLRB 651 (1977).43 In addition, the Respondent
shall be ordered to expunge from its records the dis-
ciplinary actions found herein to have been discrimi-
natory. See, e.g., Wolverine World Wide, In1(., 193
NLRB 441 (1971). Finally, because of the pervasive
violations of the Act by the Respondent, we shall
include a broad cease-and-desist order.
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,
Keller Manufacturing Company, Inc., Corydon and
New Salisbury, Indiana, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, transferring, or other-
wise discriminating against employees because of
their interest in or activity on behalf of Local Union
No. 89, International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America.
or any other labor organization.
(b) Systematically polling or questioning its em-
ployees concerning matters which permit conclusions
to be drawn with respect to their individual union
sympathies or attitudes, or otherwise interrogating
employees concerning their interest in or activity on
behalf of the above-named labor organization or any
other labor organization.
(c) Creating the impression that employees' union
activities are under surveillance.
(d) Compiling lists of union activists and sym-
pathizers.
(e) Threatening employees with plant closure. dis-
charge. or other reprisals because of their interest in
or activity on behalf of the above-named labor orga-
nization, or any other labor organization. or because
of their failure to work against the above-named la-
bor organization or any other labor organization.
(f) Disciplining or otherwise reprimanding em-
ployees in a manner more severe than is consistent
with established disciplinary policy because of their
interest in or activity on behalf of the above-named
labor organization, or any other labor organization.
or to discourage such union activity.
(g) Promoting or attempting to promote the for-
mation of a company-assisted labor organization or
committee.
(h) In any other manner interfering with, restrain-
4
1
See. generally. Isis Plumbhigr and Hcrintn ( ,, 138 Nl.RB 716 (19 62h
ing, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer the following employees immediate and
full reinstatement to their former positions or, if
those positions no longer exist, to substantially equiv-
alent positions without prejudice to their seniority or
other rights and privileges, and make them whole for
any losses incurred by reason of the discrimination
practiced against them in the manner set forth in the
section of this Decision entitled "The Remedy":
Marv Carol Smith, Marv Carver, Edna Lawson, Ho-
mer Wiseman. Edith Adamson, Cassie Mae Barnum,
James Michael Bright. Daniel Milchling, Chris
Green. Joseph Wayne Peele. Alice Meyers, Betty
Haub. Joe Foster. James East. Roy S. Dearborn.
Gar,, Mattingly. I ambra Crecelieus, Nicky Edwards,
and Sarah Sizemore.
(b) Rescind, and remove from its files, any refer-
ence to the oral warnings, written warnings, and rep-
rimands issued for discriminatory reasons to the fol-
lowing employees, and provide that these warnings
shall not be used as a basis for further disciplinary
action against said employees: James Michael
Bright. Daniel Milchling. Joe Foster, James East,
Rov S. l)earborn, Gary Mattingly. Mary Carver,
Edna Lawson, Homer Wiseman, Edith Adamson,
Cassie Mae Barnum. Nicks Edwards. Nancs Ruth
Pittman. Barbara Jean Miller. and Sharon Snyder.
(c) Preserve and, upon request. make available to
the Board or its agents. for examination or copying,
all payroll records, social security payment records.
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its New Salisbury and Corydon facil-
ities copies of the attached notice marked "appen-
dix." C4 ('opies of said notice, on forms provided by
the Regional D[irector for Region 25. after being duly
signed byh the Respondent's representative. shall be
posted by it immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter.
in conspicuous places. including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered. defaced, or covered
by an, other material.
(e) Notify the Regional Director for Region 25, in
writing. within 20 davs from the date of this Order,
i hn Ihe c.ent thai this O(der i,. enfrced by a judgmenn ofr Ia nited
Slater. ( ourt io Appeals, the words in the rird t ce reiading "Porsled by Order
i.f the Na.111 al .ab r Rel.lll, IB( ard" shall read "Posted Pursuant I, a
JudlrTenil ol the InilLed Sla[ts ( ourl of Appeals Enforcing an Order of the
.tiionari l l.abor Rel.tins Board.
728
KEIIFR MANILTFA(IURINGi COMIPANY
what steps the Respondent has taken to complN here-
with.
II t R I it II:R ()Ri)ltR:I) that tile al leatiions of un-
fair labor practices not specificall found herein be
dismissed.
APPEFNDIX
Noi ' To E lo I I s
Post :I) BY ORI)i R O( 1111
NIIoNxAI. LsBOR Rt l io\s BO\RI)
An Agenct of the LUnited States (iovernnrent
After a hearing in which all parties participated. the
National Labor Relations Board has found that wec
have violated the National I[abor Relations Act and
has ordered us to post this notice and to abide b\ its
terms.
Wi: \V% i \ oi discharge. lay off. transfer. or
otherwise discriminate against our emplo\ees
because thev are active on behalf of f local
Union No. 89, International Brotherhood of
Teamsters. Chauffeurs. Warehousemen and
Helpers of America. or any other lahbor organi-
zation.
Wi W iii l NOI question or poll OLul crnplo IeCs
concerning matters which permit conclusions to
be drawn with respect to their individual union
sympathies or attitudes, or in any other manner
interrogate employees concerning their interest
in or activity on behalf of the above-named la-
bor organization. or an) other labor orgailiza-
tion.
Wit xii.l NOl engage in surveillance of our erl-
ployees' union activities or create the impression
that we have done so.
WE. wit L N01 direct that lists of union acti ists
or sympathizers be compiled.
WiE WII.I NOt threaten our emplo\ces either
explicitly or implicitly with plant closure. dis-
charge, or other reprisal because of their interest
in or activitv on behalf of L.ocal Union No. 89,
International Brotherhood of Teaimsters. Chauf-
feurs, Warehousemen and Helpers of America.
or any other labor organization. or because of
their failure to work against the ahboe-namned or
any other labor organization. Nor shall we im-
pliedly threaten employees by singling them out
as "troublemakers" because of their union acti -
ity, or by telling them to remove union buttons.
WiU iii. NOI deviate from our disciplina1r
system and reprimand or otherwise discipline
our employees because of their interest in or ac-
tivity on behalf of the above-named labor orga-
nization. or anv other labor organi7ation.
Wl wi[.l Nou ask our employees to form or
join a union sponsored or supported by us in
opposition to the ahbove-named labor organiza-
tioIl.
W ,i ;\it NO1 l in anN other manner interfere
ilhtli restraliln. or coerce our employees in the
exercise of their rights guaranteed by Section 7
of the Act.
W i uli offer immediate and full reinstate-
nierti to the following employees to their former
positions or. if those jobs no longer exist, to sub-
st.antially equivalent jobs. without predjudice to
their seniorit\ or other rights and privileges pre-
iousl\ el njo!ed and x: x iii i make themll whole.
,xxith interest. for losses incurred hb reason of the
discri mination .lg;ainst them.
Mlarx (Carol Smith
Nlar\ ('ar er
Edial l ; son
Ilomer W\isemilna
IEdith A\damson
('assic Mlae Barnumli
James M. Bright
[)aniel Milchling
C(hris (reen
Sarah Sizemore
Joseph Was ne Peele
Alice Me',ers
Bett) Haub
Joe Foster
Jaimes l ast
Roe [Dearborn
(iar\ Matting'!
l'anbra Crecelieus
Nick' Edwvards
Wi xtili reilove from their personnel files
an' reference to. and rescind the oral warnings.
rfitten \arnilngs. and reprimands which were is-
sued to the follo ring employees because of their
union activities. and \WI u\i make provision
that these w\arlings ,,ill not be used as a basis
for further disciplinary action against these em-
plo' ees:
.Jaiics M. Bright
[)aniel Milchling
Joe Foster
Jarnmes Fast
Ro' [)earborn
(Jar' MIattingoly
MNarv ('arver
Sharon Sn'der
I .dna l.awson
Homer Wiseman
Edith Adamson
Cassie Mae Barnum
Nicky Edwards
Nancv Ruth Pittman
Barbara Jean Miller
All our employees have the right ot join Local
Union No. 89. International Brotherhood of Team-
sters. ('hauffeurs. Warehousemen and Helpers of
America. or an'. other labor organization, or to re-
frain from doingl so.
Ki II R M \-, I \( 1t RINGt COM'PA'NY. IN('
DECISION
SIAlrMI:NI OF II C AS
JASxiS 1. Rosi Adrninistrativ e l.ai, Judge: This matter
wxas heard before mc on sarious dates between Jul) 12 and
729
DECISIONS OF NATIONAL LABOR RELAI IONS BOARD
July 27. 1977, at Corydon, Indiana. T'he consolidated
complaints allege that the Respondent terminated 22 indi-
viduals in violation of Section 8(a)(3) of the National la-
bor Relations Act, as amended, 29 U.S.C. § 151. et scq. It is
also alleged that the Respondent engaged in various acts
violative of Section 8(a)( I).
The Respondent generally denied that it had engaged in
any violations of the Act, and specifically contends that
each of the terminations was for cause and none was moti-
vated by that individual's activity on behalf of an)' labor
organization or to discourage such activity.
Based upon the record as a whole, including my observa-
tion of the witnesses, briefs, and arguments of counsel, I
hereby make the following:
FINDINGS OF FACT AN[) CONC(I .rS ONS OF: LA
I JIRISDII( ION
The Respondent is an Indiana corporation, engaged in
the manufacture and distribution of furniture and related
products at the two facilities here involved: Corydon and
New Salisbury, Indiana.
During the year preceding the issuance of the complaints
herein, the Respondent purchased goods, products, and
materials directly from points outside the State of Indiana
valued in excess of $50,000. I)uring the same period, the
Respondent sold directly to points outside the State of In-
diana, goods and products and materials valued in excess
of $50,000. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6). and (7) of the Act.
H. I HE LABOR ORGANIZA I IONS INVOI V[)
The Respondent admits, and I find, that Local Union
No. 89, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen, and Helpers of America (herein the
Teamsters or the Union), and Local Union No. 2441,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (herein the Carpenters) are labor organizations
within the meaning of Section 2(5) of the Act.
111. THF ALL FGED NFAIR I ABOR PRAC(IIH( IS
A. Factual Background
Since the late 1940's, the Respondent's production and
maintenance employees were represented by the Carpen-
ters. The Respondent and the Carpenters had successive
collective-bargaining agreements, the last of which expired
on November 27. 1976. During the course of negotiating a
possible successor contract, apparently the C'arpenters de-
termined that it no longer had sufficient support among the
employees effectively to be their bargaining representative.
Thus, on October 28. 1976, the executive secretary-treasur-
er of the Carpenters wrote the Respondent advising that
unless a union-security clause was included in a successor
agreement, the Carpenters would give up bargaining rights
effective November 28. No successor agreement was
reached, and since November 28 the Carpenters had no
longer been the bargaining representative for the Respon-
dent's employees.
Although unclear from the record, it appears that during
the latter stages of the Carpenters representation, employ-
ees began discussing the possibility of having another
union take over as their bargaining representative. To the
extent that there were discussions in November concerning
this matter. I find from the record that such were general
and the participating employees did not have any particu-
lar successor labor organization in mind. In any event, as
the plants were closed the last full week in November. such
discussions would have occurred away from the Respon-
dent's facilities.
Around the first of December, the Union was contacted.
The Union began handbilling at the plantsites on Decem-
ber 2, and a meeting was set for December 5. with some
300 employees in attendance. This meeting took place at a
local school.
The organizational campaign culminated in a Board-
conducted election on February 25, 1977.) The tally of bal-
lots shows that of approximately 626 eligible voters, 401
ballots were cast for the Union, 174 against any participat-
ing labor organization. 6 were void and 19 challenged. The
Respondent filed objections to conduct affecting results of
election which, by Board direction, was set for hearing.
This matter was still pending at the time of the hearing
herein.
B. Issues
During the period December I. 1976, through June 23.
1977, the Respondent terminated approximately 50 em-
ployees 2 (including three considered to have quit). Of the
50 terminations. the General Counsel has alleged that 22
were violative of Section 8(a)(3) of the Act. Also alleged
violative of Section 8(a)(3) are the transfers of three em-
ployees and the discipline of three others.
As indicated above, in addition to the 8(a)(3) allegations,
it is alleged that during the organizational campaign the
Respondent. through various supervisors, interrogated em-
ployees, threatened them. and otherwise engaged in activi-
ty violative of Section 8(a)( I).
IV ",NAI.YSIS AND (ON( IUDINC FINIDINGS
A. 7'he A llhged Violations of Section 8(a)ll)
1. Interrogation
Charles Lone. Sr., worked for the Respondent approxi-
mately 20 years. 14 of which were as a supervisor, a posi-
tion he held during the material times involved in this mat-
ter and until February 4, 1977. when he determined to quit
his employment.
( i.e 2' R( 65t0)
:(i;( txh 28, sopies if the empilohment records eif discharged emplos-
ee shon..s that there were 48 terminations during this period. In addilimn.
t,,o 1idle lduas. Mar! Stiuth aid Mleredith Spenller ho are alleged to have
been disch arged In ollilatn lif the Act testified that the, were in fact dis-
charged during this period. I he fact of these discharges 'as not disputed b'h
Respldrlratt C. ( [Exh 28# originalls rejected as irrelevant is. on reconsider-
irinln, iecicxed tsetr the obJeCtill if the Respondent
730
KE ILER MANU FACI URING COMPANY
Lone testified credibly, and without contradiction, that
pursuant to instruction from higher management. follow-
ing the advent of the union activity he systematically inter-
rogated the 19 employees under his supervision to de-
termine whether they were for or against the Union. From
his testimony this was not idle interrogation or a one-time
poll. Rather, during January, Lone talked to each employ-
ee at least once a week. Upon determining that a particular
employee was in favor of the Company. he would leave
that individual alone and would concentrate his efforts on
those he felt were neutral or leaning toward the Union. He
interrogated them one at a time in his office. He did not
give assurance against reprisals.
Weekly, Lone would take his findings to l.eo (Joettel-
finger, the personnel manager of the CoorNdon facility.
They would discuss the results of L.one's interrogation and
made plans accordingly. The purpose of the interrogation
was to affect the outcome of the pending election.
I conclude that this activity. intense as it was, and ulti-
mately becoming more intense as to those emplosces sus-
pected of being prounion, did not meet the test of permissi-
ble interrogation. E.g.. Struksnes Consrruction Co.. Inc,. 16
NLRB 1062 {1967). Rather. by systematic interrogation.
the Respondent attempted to undermine the Union and to
dissuade employees from it. This was activitv which neces-
sarily interferes with, restrains, and coerces emplosees in
the exercise of the rights guaranteed them bN Section 7 of
the Act and accordingly was i olatie of Section 8(a)( .
Similarly. Chris Green testified that during the time he
was still a foreman, in December and January. he Was 111-
structed by Robert Nolot. the personnel manager of the
New Salisbury facility. to interrogate employees and find
out how they stood on the union issue. Green would report
his findings to Nolot about every week. this is the same
type of activity which Lone testified he engaged in under
instructions from management. and is. for the same rea-
sons. violative of Section 8(a)( 1).
Foreman Clarence Wiseman also systematically interro-
gated employees prior to the election, and took notes of
their responses. As with Lone and Gireen. I conclude that
this was unlawful interrogation engaged in pursuant to
company policy.
The General Counsel has alleged a number of other in-
stances of interrogation of employees hb foremen. While
the record is replete with instances of conversations be-
tween foremen and employees during the course of the or-
ganizational campaign in which the Union was discussed.
many of these conversations do not contain unlawful inter-
rogations. However. others do. For instance. Supers isor
Randy Mozier asked employee Joseph Field during a dis-
cussion about the Union how he was going to vote. Simi-
larly. Foreman Don Conners asked emplo!ee Gary Mat-
tingly how he was going to vote.
During the early part of the organizational campaign, on
at least one occasion Mike Schlinker. Nanc' Pittman's
foreman, saw her with authorization cards and said some-
thing to the effect "I see you are signing people up." She
admitted that she was, after which he give her a lecture
"about hosw I ought to watch what I am doing and I ought
to think about . . . what I was doing."
In short. there was a substantial amount of unlawful in-
terrogation engaged in hb the Respondent's agents
throughout the organizational campalign.
2. Impression of surveillance
Several times Super,,isor Gil Taylor asked Marilyn Mc-
l.emore if she had atten.ed a union meeting and on one
occasion he told her that he had seen her car there. This
amlounis to impermissible interrogation as well as creating
the impression of surveillance of employees' union activity
and is therefore in violation of Section 8(a)(1).
Similarl\. it is undenied that foreman Mike Schlinker
told Nanci Pittman. "I see you are signing people up" and
he told her she ought to watch what she was doing. This
too is sur'eillance. or creates the impression of it.
3. Threats
During at least one of his conversations with employee
Ruby NMilchling concerning the Union. Chris Green stated
that. "if Keller got a closed shop in there Bill Keller would
close that doors." In the context of the systematic interro-
gation of emplovees bh management officials during the
organizational campaign. I find that this statement. irres-
pective of its contingent nature, contained a threat that the
plant would shut down if the Union were voted in. Such
w as violative of Section 8(a)( Il. E.g.. Spalding, Division {of
Que.r('or ( orporation. 225 N I.RB 946 (1976).
I ollouing a meeting of emplo'ees rith management of-
ficials John leishman and Robert Nolot. Nolot told em-
ploNee D)aniel Milchling that the t nion was not good for
the eniploseces "because Keller would shut the doors. and
e\crsthing. It wsould be pouring monec in the emplotee's
pocket." I conclude that such a statement by a high man-
aemnient official impl'ing that the Respondent swould shut
down in the context of advising employees that the ; mon
ssas not good for them amounted to a threat to do so and
was therefore tiolative of the Act.
Similarly. William Keller, the Respondent's president.
told supervisors that if the tlnion got in theN would be
asking for a "closed shop" (presumably meaning a "union
shop") and that "I'11 shut the damn doors." The supervisors
then related this sentiment to employees. according to the
undenied testimony of Chris Greene. Though this state-
ment hb the Respondent's president to foremen is not itself
.iolative of the Act, such does corroborate other testimony
of , hat supers isors told employees.
F[or instance. Nick's Fdwards testified that his supervis-
or, Scott (Grasett. told emplo'ees during the organizational
campaign that the "Kellers would shut the doors and lock
us out.
I hroughout the organizational campaign supervisors
would mention plant closure in the context of assuming
that the L nion would ask for a "closed shop" to which
Keller would not agree: but if the Ilnion was successful.
Keller would then shut down the plant. Such was essen-
tiall,, Keller's statement to supervisors. I do not believe
that this was a benign prediction by the Respondent's pres-
ident relayed to employees through foremen. Rather in the
totality of this situation. I find that these statements were
threats in violation of Section 8(a)( 1. E.g.. Hanover Ioutse
Industries, Inc.. 233 NILRB 164 (1977).
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is alleged that a statement by foreman Scott Gravett to
the lumberyard employees concerning the prospective lay-
off on Monday following the election was an unlawful
threat. Inasmuch as I have concluded. infra, that the layoff
was justified by business reasons, lasted only a week, and
was not causally related to the election. I conclude that an
announcement by Gravett was not a threat.
The General Counsel contends that when Clarence
Wiseman told employee Edna Lawson to take off her
union buttons that he thereby threatened her in violation
of Section 8(a)(1). While there is no doubt an implicit
threat in such a statement by a supervisor prior to an elec-
tion, such was not alleged in any of the several complaints
in this matter. In any event, as I already found that the
Respondent threatened employees, a finding in this respect
would not alter the order that I shall recommend.
At a number of the meetings Supervisors Scott Gravett.
Gil Taylor, Charles Lone, Clarence Wiseman, and James
Wolfe had with employees. certain of them were singled
out as being the union instigators. Employees were told
that they should not follow the lead of these people for a
variety of reasons. Viewed in isolation these statements by
foremen would probably be permissible or at least not vio-
lative of the Act. However, in the context of the vigorous
antiunion campaign conducted by the Respondent I must
conclude that the Respondent implicitly threatened those
employees with reprisals and therefore did violate Section
8(a)( I ).
Other statements alleged by the General C'ounsel to be
threats I find have not been established even construing
the testimony of witnesses for the General Counsel in a
light most favorable to such a finding.
4. The company union
When Nicky Edwards talked to Plant Manager John
Hoback during the latter part of December, among other
things Hoback suggested to him that he try to get employ-
ees to meet with management. Hoback told Edwards that a
"private union" would be better than the Teamsters. While
Hoback tends to deny these statements, I credit Edwards
and conclude that in their conversation Hoback did sug-
gest to Edwards that he use his influence among employees
to set up what in effect would be a company union. This,
particularly in the context of a beginning organizational
campaign, tends to interfere with employees' Section 7
rights and is therefore violative of Section 8(a)(l) of the
Act.
5. The disciplinary system
Paramount to most of the alleged unlawful discharges is
the General Counsel's contention that following the start
of the union activity, the Respondent commenced more
rigorous enforcement of plant rules than had been the past
practice. It is alleged that the Respondent began issuing
written warnings and reprimands for insignificant viola-
tions of plant rules, and in general established a "get
tough" policy against union sympathizers in order to inter-
fere with their free choice of a bargaining representative.
As will be discussed infra, most of the alleged discrimi-
natory discharges were claimed by the Respondent to have
resulted from repeated violations of company rules (e.g..
tardiness, absenteeism, poor workenship and the like). To
establish that the Respondent's true motive was the given
individuals' union activity, rather than the purported
breach of some company rule, the General Counsel main-
tains that there was disparate treatment of employees after
the organizational campaign began vis-a-vis before. There-
fore. the Respondent's claim that a given individual was
discharged pursuant to the disciplinary system was neces-
sarily a pretext. It then follows that the true motive can and
should be inferred to have been related to the individual's
union activity, given the Respondent's knowledge of such
and its general union animus.
As to most of the terminations in this matter, unless it is
in fact established that the disciplinary system was en-
forced disparately, then there is no real basis to conclude
that the discharge was for a pretextual reason. Absent a
finding of pretext, upon which an inference of unlawful
motive can be based, or direct evidence of a discriminatory
motive, there is nothing to support a fundamental element
of an 8(a)(3) violation.
Basically the disciplinary system is progressive. For the
first violation of a company rule, the employees will receive
an oral warning (which is in fact written). For a second
offense the employee will be given a written warning, and
for a third offense the employee will be given a reprimand
with the understanding then that three reprimands for dif-
ferent violations of company rules within a year will be
cause for discharge. Two reprimands for the same offense
will merit discharge. However, if the offense is serious, then
a written warning or reprimand will be given even in the
absence of prior violations of company rules.
The General Counsel does not contend, nor does the
documentary evidence suggest, that the system was not
uniformly applied generally even though there may have
been occasional instances when an employee was not dis-
charged after a third or second reprimand. Rather, the
General Counsel alleges that the Respondent more rigor-
ously enforced the plant rules following the beginning of
the union activity.
For the following reasons, I conclude that the General
(ounsel has failed to establish that the Respondent initiat-
ed a policy of more rigorous enforcement of this plant
rules or that the disciplinary system was applied in an dis-
parate manner. On the contrary, the documentary evidence
submitted by the General Counsel demonstrates that long
before the advent of the union organizational campaign the
Respondent had given written warnings and reprimands,
and had discharged employees. many times for very trivial
infractions.
For instance on July 26, 1976, an employee was given an
oral warning for having started work at 7:01 a.m.-I min-
ute late. On October I I, another employee received an oral
warning because he returned I minute late from a break.
On October 19. another employee was given an oral warn-
ing because he returned from break 1 minute late.
The Respondent's records show that there were some
8511 3 oral and written warnings and reprimands issued to
his. and the monthly totals. ,are talken frorm the (enral C( ounsel's brief
inasmuch as perusal of the records indicates the figures to be essentiall 3
correct
732
KELLER MANU FACTURING COMPANY
employees in 1976. 179 of which occurred in December.
The General Counsel argues that since 179 was more than
the number of written disciplines issued in an, other
month in 1976. it follows that the Respondent embarked
on a policy of more rigid discipline.
Such is not necessarily the case. particulalrlx when one
considers that the number of written disciplines in January
dropped to 27 and was only 47 in February. In October
and July 1976 there were, respectively. 103 and 107 wvritten
disciplines. Given that the Respondent in fact was issuing
large numbers of disciplines to employees long before the
union activity, and that many of these were for ver' trivial
infractions. I cannot conclude that just because a some-
what larger than usual number were written in the month
of December 1976. such was a result of a policy to interfere
with employees' freedom of choice of a bargaining repre-
sentative. The number of December disciplines could just
as easily have been the result of employees doing more
things requiring discipline.
From January through June 1977 there were 422 written
disciplines which means that the number of disciplines in
1977 is running at about the same rate as 1976, e-en
though there is a substantial variation hetween the lo>!
month (27 in January 1977) and the high month (179 in
December 1976).
In addition to the statistical inference sought, the Gener-
al Counsel relies upon testimony from Chris Green, who in
December was a supervisor, to the effect that he was in-
structed to "tighten down on everything" and that "people
were constantly getting written up for just little minor
things that before they had let slide through."
I do not accept Green's testimony on this subject. First.
I do not believe that Green is a particularly reliable witness
particularly since he is one of the alleged discriminatees in
this matter. Second. because Green's position now is as a
party to the case adverse to the Respondent. his testimony
is hardly as binding on the Respondent as that of a super-
visor. Finally. Green's rather generalized and conclusion-
ary statement that foremen started writing up employees
for minor matters that had been let go prior to December
1976 simply is not supported by the documentary evidence.
To the contrary. the documentary evidence shows that the
Respondent has always had a policy of writing up employ-
ees for trivial matters.
On the other hand, Charles Lone, Sr., also a witness for
the General Counsel but one who has no apparent interest
in the outcome of this matter, did not recall discipline
being stressed during the December supervisors' meetings.
Nor did he increase the written disciplines he gave. Not
only is Lone's demeanor generally credible, hut his testi-
mony on this issue is consistent with the documentary evi-
dence.
The documentary evidence shows that the Respondent
discharged numerous employees both prior to and subse-
quent to the advent of the union activity. Thus. from Janu-
ary 19, 1975, through November 1976 the Respondent dis-
charged 149 employees, most of whom were probationary
and did not pass the probationary period. However. during
that period, 14 were discharged for absenteeism. 5 for in-
subordination, 5 for excessive breaks I I for poor work-
manship and 4 for timecard padding. A review of the docu-
mentars evidence does not demonstrate that application of
the disciplinar? system. or discharge of individuals pur-
suant to it, was ans different after the organizational cam-
paign began than before.
Thus I cannot conclude that the employees who were
dischar.ged after December 1976 because the': had two rep-
rimnands for the same offense or three reprimands for dif-
ferent offenses within a I-sear period was disparate treat-
ment vis-a-iis emplo ,eesC who had committed similar
violations prior to the beginning of the organizational cam-
paign.
The General Counsel contends that notes from a meet-
ing of managers on April 4. 1977. demonstrates that the
Cornompan had embarked on the policO of more rigid disci-
pline. The memo certainlx indicates that the Company at
least discussed adopting such a policy. Thus in outlining
how to convince enough employees who had voted for the
U'nion in the election of Februar, 25 to vote against it in
the event of a rerun election. the memo includes: "We must
look for and effectively put down troublemakers." "The
strength and resolve of the (Coimpanx must be seen and felt,
notl .ust told." "If a foreman has poor workmanship. he
must be 'riting discipline. [:ach mistake should require
discipline unless there are specific reasons for not writing
it." "The number of disciplines written \kill be used s an
indicator of mnariigement efficiene',." And so on.
Though in total this document is somewhat ambiguous.
it does tend to show that at alln April meeting, the Respon-
dent's managers made a determination "to get tough" with
emploees in order to interfere with their freedom of
choice. There is nothing in this memo. however, to indicate
that the policy was already in effect and related back to
December 1976. Of itself. the memo really does not estab-
lish wihat the Gieneral C ounsel contends it establishes.
namelr, that in December 1976 the Respondent adopted a
polic_, of more strict enforcement of plant rules in order to
interfere with employees' rights.
Further. the documneintarx evidence does not show that
following the April 4 meeting there was more rigorous dis-
cipline than had always been the case. Thus. in March
there were 137 written disciplines, while in April there were
103. in May,. 49, and in June, 59. After the April 4 meeting.
the managers did not demonstrably, at least. embark upon
a program of writing more disciplines.
I conclude that the memo of the April 4 meeting shows
the Respondent's animus against the Union. Animus, how-
ever, is not an unfair labor practice in and of itself, al-
though relevant to interpret whether other acts are unfair
or not. Simply because the Respondent may be opposed to
the Union does not prove that enforcement of its discipli-
nary system either generallk, or as to individuals, is an un-
fair labor practice. As the Board said in Klate Holr C ompu-
n;, 161 NLRB 1606. 1612 (1966). concerning an individual
who was discharged for breaching a company rule:
The mere fact that an employer may desire to termi-
nate an employee because he engages in unuelconme
concerted activities does not, of itself, establish the
unlawfulness of a subsequent discharge. If an emplo?-
733
DEC ISIONS OF NATIONAl LABOR RELATIONS BOARD
ee provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason, the circumstance that
the employer welcomed the opportunity to discharge
does not make it discriminators and therefore unlaw-
ful.
6. Conclusion
In summary, while I do not believe that the General
Counsel was able to establish factually every allegation of
8(a)(1) activity, there is ample credible evidence to support
the conclusion that the Respondent did engage in system-
atic interrogation of employees, did create an impression of
surveillance of employees' union activity, and did threaten
employees with discharge and other reprisals should they
engage in union activity all in violation of Section 8(a)(l).
The Respondent did not violate Section 8(a)( i) or (3) with
regard to implementation of its disciplinary system. 1'illow
Mfg. Corp, Oak Apparel, Inc., 232 NLRB 344 (1977).
B. The Alleged Violations of Section 8(a)(3)
1. The terminations
While the facts relating to each individual's termination
are unique, the General Counsel's theory as to each is es-
sentially the same. That is, the General Counsel contends
that each employee alleged to have been terminated in vio-
lation of Section 8(a)(3) was terminated for a pretextuous
reason. thus a discriminatory motive should be inferred
from the Respondent's animus toward the Union as dem-
onstrated by its violations of Section 8(a)( I ), and the notes
from the management meeting of April 4.
The General Counsel contends that given the atmo-
sphere of animus, the Respondent's policy of increased dis-
cipline adopted at the beginning of the organizational cam-
paign and memorialized in the notes of the April 4
meeting, along with the known union activity of each of
the alleged discriminatees, the termination of each must be
found to have been violative of Section 8(a)(3).
At the outset it should be noted that the General Coun-
sel does have the burden of proving each allegation of the
complaint by a preponderance of the evidence. But this
can be accomplished by circumstantial evidence, and infer-
ences. particularly of a discriminatory motive, are permit-
ted. Shattuck Denn Mining Corporation (Iron King Branch)
v. N.L.R.B.. 362 F.2d 466 (C.A. 9. 1966).
However, simply because one event follows another
chronologically does not imply a causal connection be-
tween them. Thus, union activity of an employee followed
by his discharge does not itself prove that the discharge
was the result of a motive proscribed by Section 8(a)(3).
E.g., Kawasaki Motors Corporation USA., 231 NLRB 1151
(1977); Deven Lithographers, Inc., and Cavalier Muticolor
Corp., 224 NLRB 648 (1976).
Since motive is critical to a finding of an 8(a)(3) viola-
tion, but since direct evidence of motive is rare, one must
look to all of the attendant circumstances to determine
whether the Respondent acted improperly or not. In addi-
tion to evidence of union animus and company knowledge
of union activity, a critical consideration is whether the
alleged reason for termination is reasonable. This is not to
say that a company cannot discharge an individual for a
bad reason, or indeed no reason at all. However, where the
reason given is implausible, then that fact tends to prove an
attempt to disguise the true, and unlawful, motive. E.g..
(Capital Records, Inc.. 232 NLRB 228 (1977).
Thus, here each of the 22 terminations must be analyzed
from the perspective of whether the reason given for termi-
nating the particular individual is plausible or not. To say
it the other way, the question is: but for the union activity,
would the given individual have been terminated at the
time and in the manner he or she was. As will be more fully
set forth below, in most cases I conclude, based upon the
totality of the record herein, that irrespective of the Re-
spondent's animus, even had there been no organizational
campaign on behalf of the Union, the individuals in ques-
tion would have been terminated when they were.
Documents subpenaed by the General Counsel, and of-
fered into evidence by him, demonstrate conclusively that
long prior to the advent of the organizational campaign
herein, the Respondent had a policy of vigorously enforc-
ing plant rules by warnings, reprimands, and discharges.
Thus, the Respondent's records show that from January 1,.
1975, through November 1976, there were 149 discharges,
most of which were of probationary employees who failed
to meet the probation. However. there were a number of
discharges for absenteeism, timecard padding, insubordi-
nation, excessive breaks, and poor workmanship. From
December 1, 1976, through June 23, 1977, as indicated
above, there were 50 terminations for a variety of rea-
sons---poor workmanship, excessive breaks, insubordina-
tion, timecard padding. and the like. It cannot reasonably
he concluded that after the organizational activity began
the Respondent began to enforce more rigorously its sys-
tem of discipline or when it terminated the employees in
question, it followed a different pattern than had long been
established. Overall, there is no showing of general dispa-
rate treatment against employees following the organiza-
tional campaign.
Thus, the facts surrounding each individual's termina-
tion must be considered to determine whether or not the
professed reason was pretextual within the general context
of the Respondent's employee relations. Even in the con-
text of other violations of the Act, the layoff of known
union supporters "absent any other evidence that would
indicate disparate treatment, we cannot conclude that the
General Counsel has made out a prima facie case of unlaw-
ful discrimination." Bromine Division, Drug Research, Inc.,
224 N LRB 1275. 1276 (1976).
a. James Michael Bright
James Michael Bright was first hired by the Respondent
in September 1975. He worked about a year and a half,
quit to take another job for a period of about 3 months,
and then was rehired. He was discharged on December 15.
1976.
734
KELLER MANUFA(C'URIN(; (COMPANY
On November 16. he was disciplined and given an oral
warning for having been 2 minutes late.4 On December 13
and 14. Bright was off work. he stated, because he did not
"feel good." He testified that his wife called the Company
for him. When he returned to work on December 15, he
was reprimanded for having been off December 13 and 14
because on those days he had been observed by a supervis-
or to be working as a building contractor. a fact which
Bright admitted on cross-examination.
On December 15, after he had punched back in follow-
ing a break, Bright determined to go to the restroom and
did not punch out. This was a violation of a company rule.
Bright testified that his supervisor. David Singleton. "said
he was going-he figured would have to write me up and if
he did, it would be the third reprimand, which meant I
would be fired, which I was aware of." Although Bright did
testify that he had firsthand knowledge of employees doing
the same type of thing, for which they were not fired, he
did not have an's specifics, nor was he aware of whether or
not such employees had had previous reprimands or sarn-
ings.
Even though the event for which Bright was discharged.
going to the restroom without clocking out, man seem in-
significant, it is the type of thing for which other emplo\ees
were reprimanded prior to the beginning of the union ac-
tivity. Further, from the totality of the record, it appears
that Bright was discharged following receipt of a third rep-
rimand, consistent with the past practice of the Compan.
It is undenied that Bright told Singleton following his
return to work on December 15, among other things that "I
am trying to get the Teamsters in here." Thus. there is
proven company knowledge of Bright's union actl It\ and
there is animus. However. given the fact that Bright did
violate company policy in the manners indicated. was, dis-
ciplined for them and ultimately discharged pursuant to
the general company policy of discharging individuals who
had the same general record as he. I cannot find that his
discharge was pretextuous. There is, therefore, no basis
upon which to infer that the Company's motive in dis-
charging Bright when it did was anything other than be-
cause of his violations of company rules. In short, on the
state of the record here. I conclude that Bright would have
been discharged when he was even had there been no
union activity. Accordingly. I shall recommend that this
allegation of the complaint be dismissed.
b. Rulh M,1ilchling
Ruby Milchling was hired by the Respondent on Octo-
ber I. 1975. She quit on December 27, 1976. which termi-
nation the General Counsel alleges to be a constructive
discharge in violation of Section 8(a)13).
Mrs. Milchling attended the first union meeting on De-
cember 5. She signed an authorization card, and shortl)
While being 2 miniltes late to work max eiem trlsal .,nd ltherere &-
ciplining the emplosee for such max .ppe.r unrelu, nllble. s.LKh nel\erlhcle-.
has been the companx p.hcs s ince sell before the 1urni .1.. ,,l\ \ hter 1n
thercaftect. she discussed the meeting, as well as solicited
another emplosee to sign a card, with the group that in-
cluded supervisor Chris Green. Although she was known
b (i Green. and therefore the ('ompany. to have been inter-
ested in the organizational campaign and to have partici-
pated in it to the extent indicated, there is no evidence that
she was one of the leaders or even particularly active in it.
On D)ecember 26. Green told her that she would be
working with a new employee who had never worked on
her kind of press. MNilchling told Green, "Well, if I got to
train two people at one time. I just don't think I could take
it." She testified that the reason she said this was that she
was working on piece rate. And she told Green that she
would rather quit than be under the strain. Following this
Green took Milchling to the office to talk to the plant man-
ager.
She testified that the plant manager. John Heishman.
told her that the reason for putting more people on subas-
semblv was because they were behind in production. Mil-
chling then said that she would try to work with the new
emploee and did so.
Milchling testified that following this, she examined
some doors which the new girl had done and found the
glue joints were not closed. She also heard from a fellow
emplosee that the new girl was "popping off" about her, all
of which Milchling said was putting her under so much
pressure that she decided to quit and so advised Chris
Green.
She. Green. and a couple of employees met with Nolot
that evening. He asked her to continue to try to get along
with the new employee. UIltimately the shift was over and
MilchlinLg went home. 1 he next day Milchling called in and
told a secretar' to tell Chris Green that she had quit.
\rhile there is evidence of company knowledge that Mil-
chling wIas a participant in the organizational activity.
there is no esidence that this fact was related at all to the
events leading up to her quitting.
To the contrary. Milchling's testimony, even in the most
favorable light to the General Counsel, indicates that the
reason she quit was because she was having difficulty with
an employee whom she was to train. It is stretching credu-
lits to conclude that the Respondent put an employee with
Mlilchling with whom she would have difficulty in order to
force her to quit. Indeed, it appears from her conversations
with Green. Heishman. and Nolot. that company officials
attempted to talk her out of quitting.
There is simply no evidence that Milchling was treated
any differentl\ than any other employee. Had she been I
would ha',e expected Green. a witness for the General
Counsel, to have so testified. I cannot conclude that
Milchling's assignment was related to her union activity so
that the Cornompans would be liable under Section 8(a)(3) for
her having quit. I he totality of the record suggests that
absent the union activity, the events which developed on
December 26 would have been the same with the same
results. Accordingly' I shall recommend that this allegation
be dismissed.
deed, perual .f the vritten d Ipicl lne 1fl, is-6 Innclud. e tcs. l w.here tIh
emplCot ec in qiIu.utl VU. a, jz1\c fld :ll >r r-prlnwlmld fir bein U w1ikl i
rniniLIt le . e, il li nuntU Il .ork after luTnh Or the I lIk.
735
DE.CISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Mary C(arol Smith
Mary Carol Smith was hired the first of June 1974 as an
assistant bookkeeper, in which job she also did payroll.
After about a year she was switched to the advertising de-
partment, was there about 9 months, and then transferred
to the customer service department where she was working
at the time of her discharge on April 12. 1977.
At the time of her discharge, among other duties, she
was responsible for putting postage on the mail every day.
In this capacity, she handled roughly 250 to 300 pieces of
mail each day.
On April 12, Smith was told by the office manager, Fred
Frederick, that William Keller's personal income tax return
had been returned without postage. The inference was that
Keller had given the income tax return to Smith for posting
along with company letters, and that she had failed to run
it through the postage meter. In any event, Frederick ter-
minated her on April 13, because "He said that he had
thought it over and he had no alternative but to dismiss
me."
The sole reason given for Smith's discharge, as testified
to by her and uncontested by the Respondent, was that she
had failed to put a stamp on Keller's personal income tax
return. The reason was, I conclude, pretextual.
First it should be noted that the Respondent did not
establish in fact that Smith failed to put a stamp on the
income tax return. Keller did not come forward to testify
that he gave Smith the income tax return or that he put it
in the appropriate place with company mail. There is, in
short, no relevant evidence that the mistake Smith was sup-
posed to have made and for which she was discharged. was
hers. In fact, from Keller's failure to testify I can infer the
contrary that he did not in fact leave the return with her.
Interstate Circuit Inc., et al. v. United States, 306 U.S. 208.
220 (1939).
Secondly, failure to put a stamp on a letter is trivial in
the extreme, notwithstanding that his was a Federal in-
come tax return. The Respondent argues that failure to
post properly an income tax return can bring with it sub-
stantial monetary jeopoardy. But such was not the case
here. This return came back and was remailed prior to the
deadline for submitting income tax returns.
Smith, along with the other office employees, was not
eligible to vote in the election. Nevertheless they were told
by Leo Goettelfinger to use their best efforts to get employ-
ees in the production unit to vote against the Union. and in
so urging them he said such things as, if the Union come in
it would "all be over."
Although Smith was not actively involved in the organi-
zational campaign giving rise to most of the events in this
matter, there was some interest by the office employees in
the Union and there were discussions among them about
having the Union represent them. Whether company
knowledge of union activity can be inferred from the fact
that these conversations between Smith and other employ-
ees occurred within the relatively small confines of the of-
fice area among a relatively small number of employees
need not be determined. I credit her testimony that on or
about the day of the election, Bob Stepro, vice president of
personnel, was standing a few feet from her when she made
the statement to another employee "Why does she think
we're not loyal (to the Company) just because we support
the Teamsters?" Stepro must have heard this statement and
from his failure to testify I infer he did.
I find that the Respondent had knowledge of Smith's
interest in and potential actiritv on behalf of the Union.
I he Respondent had alreadv demonstrated its animus.
And the reason given for Smith's discharge. even for this
Respondent, is so trivial as to be unreasonable. In this re-
gard it should be noted that Smith's situation is different
from that of employees in the production unit who were
discharged within the general context of enforcing plant
rules. It is not claimed that what she is supposed to have
done in fact violated a company rule.
I conclude that Smith was discharged because of her
potential interest in and activity on behalf of the Union in
a unit of office clerical employees. The Respondent thus
violated Section 8(a)(3).
d. Danil/ J. Miilc'hling
Daniel J. Milchling was hired on September 8, 1976. and
was discharged on February 4. 1977.
He received his first written discipline on December 6
from foreman Benny Crone for loafing on the job. On
January 4, Milchling received a reprimand for marking two
cases incorrectly. On January 31, he received an oral warn-
ing for allowing packing cases to be in a hallway in viola-
tion of the fire safety rules, and on February 4 he was
again reprimanded because he carelessly damaged the
backs on some cases.
The next day he was discharged. Crone told him that, "I
was making too many mess-up's. They didn't need me any-
more.
Although Milchling tended to excuse himself from cul-
pability with regard to the various items for which he was
disciplined, he did not deny that the events occurred as
reflected on the warnings and reprimands.
Irrespective of the fact that Milchling was known to be a
supporter of the Union and in fact was known to have
passed out authorization cards in early) December, I cannot
conclude that Milchling was treated any differently from
employees prior to the advent of the union activity or those
whose discharges after were not alleged to be violative of
the Act. In short. absent a finding of the disparate treat-
ment I cannot conclude that the reason was pretextuous or
[I hl Li\ it llChllll ' fillr , rilltell dlciplline aind ais tl -" rl. liten l.rrrnlll"
. c1t1 1fllll 11: l 'i ira1 ,.illl" - xqLlih.1 azLcmidilln t[-) [he Rcorll derl l's dl.Ci-
1 11i ll},,\s \1 ll 1
1
i 1lrll illl, fiX \i, et11 i \c ' l tcdi \Ise, h o. Iiaet'ir. for more
"serious"' offenses a written warning ir een ;i leprim;lnd mn.l' he ilsen firt
Vk*hal Ii " CrlOiL" I% ca.eshleltls stl]chlcti\C anid iho that extent discipline
tuld depeni d II the .liiiiiritl i Asiln i (if the superlsor 'lhe queslital before
lict ii,li.sc,' hctilcr the RK p nliideli distha lie'd ihfichlin. beta.Lle of hi,
tInloII .liil \ )l II c h. .Is' he ihd \iit.Ited the ('ormp;ln\'s rules Therefore.
,helhi (rione shouild haive [I. ie an or.ial warnillng is nlol impr.rtlllt except
insi,;li ia, i. f;lilure tI d.o ,,1 Is esidenci ii thie eclploIee was hbeing
dicti'plined llo Ifor hai.l il i/olteid i ride hul for snome Other reason. While
I hi.a c Ctol'idteCed it}e ftiL thii t iltll}ihi s, IS init n Irh t r i ,ien fin o ral .arr-
111, I oti not a.tti.ll.h milulh i fiiIf lnct I i partlculrl Ahen onie considers
tlIa thier aI'e 1se1CrIa iillTlI e mIPplIoiees ithe Respondent's tto, plants
and InunicroIus super\lsors hlla are misirCled l1n v riling discipliles The fact
iih1a differel t ' .uiperisorr did 111 irPIt\ he s)stenl in thSe anme precise was
1 no LI Ica.lt siiilianle. pailricilalrls Ininrilc h Ias such ,ariances occurred
Li i ltih hbefore tihe uiiiiii aCI11it\ ., ait fteri
736
KEI.I.ER M ANt FAt CI LIRIN\ COMPANY
infer an unlawful motive. On the sanme facts. even without
the union activity. Milchling would have been discharged.
e. (Chris S. green
Chris Green was hired hs the Respondent in 197( and
was made a supervisor in N'osember 1976. According to
the Respondent's witnesses. as Awell as Green. during Janu-
ary there were some discussions with him concerning lhow
he was handling his foreman job. Ultimnatels the plant
manager told him that he was not doing his job swell. While
Green attempted to justify himself. the fact of the matter is
that during January higher supersision had been critical of
his performance as a foreman.
Thus, on January 28. as part of a general reduction of
the supervisory force, Green was told that he would bc
demoted. He was then offered a choice of two production
jobs. During this discussion Green. according to his own
testimony, became angry and ultimatels walked out, telling
the plant manager. "Well. if I am here Mondais I am here.
If I'm not. I'm not."
The next day was Saturda an da Inonworking da\ for
Green. He was brought into the plant b, another upervsis-
or and told that he had been dischargcd, that he was Fnot
going to be reemployed because of his conduct and atti-
tude the day before.
On these facts the General Counsel contends that the
Respondent violated Section 8(a)(3) both hb demoting
Green from a supervisory position and then bh discharging
him in order to retaliate against him because of his aIcti Ist
on behalf of the Union.
There is no evidence that Green was active on behalf of
the Union or indeed particularly s)mpathetic to it. lo the
contrary, prior to his demotion he interrogated emplo,,ces
on behalf of the Respondent. Ihere is no indication that
Green's demotion from supervisors status in an wias
would interfere with the bargaining unit employees' free-
dom of choice of their bargaining representative.
Although Green was offered a job as a production em-
ployee when his supervisors status was terminated. he did
not accept the job. Indeed he gave ever' indication that he
probably would not.
Thus, when told of his termination there is some ques-
tion whether he was even an employee. Beyond this. how-
ever, there is simply no evidence to tie in the discharge of
Green to any kind of discriminator) motive or to the union
activity in general. Accordingly. I conclude that the Genel-
al Counsel has not sustained his burden of proving that
Green, as a rank-and-file employee, was discharged be-
cause of his interest in or activit' on behalf of the Union or
that his termination as a supervisor was in any wa, siola-
tive of the Act.
f. W1 'aine Peeh,
Wayne Peele was hired by the Respondent on September
15, 1975. and was discharged on February 14. 1977. be-
cause, according to the Respondent. he refused a job as-
signment. The General Counsel generally contends that
Peele was transferred among jobs and from higher paying
to lower paying jobs because of his activity on behalf of the
Union. Accordingly, he was privileged to refuse the trans-
fer on Februars 14 inasnmuch as the transfer was discrimi-
natorily motisvated 'I herefore his discharge was necessarily
s olati'vc of the Act.
In earls Januar\. Peele and another offbearer. Eddie
Quick. were transferred to different jobs in other depart-
ments Peele's transfer ,was alleged to be in retaliation for
his knosun actisits on behalf of the Union. Quick's transfer
was under similar circumstaltces but was not, for reasons.
unknown. alleged to be discriminatory.
O()n Februar 14. when Peele refused to do the job to
which he had been assigned. he was asked several times to
reconsider. lie refused b', telling the plant manager. and
others, that he did not want to he transferred ;ansmore
becaus he was losing mones. leishman and Nolot both
encouraged him to d10 the job. but told him if he refused he
would he considered to hase quit. Peele said. "A-ll of 'sou
can't put me iout. I will fight all of you but I am not leav-
inc." Folloswing this the determination was made to lax
him off, accordirng to Peele. although he later stated that
the Respondent considered him to have quit.
W\'hile there is ecidence that Peele wAas kno,.n to be a
supporter of the L nion and did have discussions in which
he expressed such support to supervision, there is no evi-
dence that his transfer was. unusual or ,was related to his
interest in the UInion. lit fact Peele testified that the trans-
fer of employ ees from job to job is rather common. I'here
is no showing that assigning employees to jobs where thes
were needed is unreasonable. Nor is it shown to be unrea-
sonable selection of relatisvcl junior employees such as
Peele.
While it appears that Peele lost earnings ais a result of
these transfers. neieertheless there is no showing that the
transfer of Peele was disparate treatment vis-a-vis other
emplo'ees. Indeed these assignments appear to be within
the general scope of the ('ompans's operations. Based
upon this I cannot find that the Respondent violated the
Act in transferring Peele in Januars and ordering him to
do a different job on Februar, 14.
It is clear that the Respondent did not discharge or ier-
minate Peele on Februar' 14 until after Peele adamantlh
refused to perform the job to which he had been assigned.
Irrespective of his known union activity. clearly the Corn-
pans had mlore than reasonable cause to terminate his em-
ployment when Peele absolutely refused to do an assigned
task. There is no persuasive evidence to establish that the
Respondent's termination of Peele on February 14 was
pretextual of that it arose out of an unlawful transfer as
alleged by the General Counsel. Accordingly. I conclude
that the (eneral ('ounsel has failed to establish his burden
of prosing by preponderance of the evidence. that the ter-
mination of Wa\nle Peele was violative of the Act.
E. Edwuard fLec Io[lies
Edward Iee Mathes was hired by the Respondent on
November 8. 1972. and wias discharged on December 1.
1976h. according to the Company's records, for a second
violation of timecard padding within a year. His first repri-
mand for this offense was on August 19. 1976.
The General Counsel contends that Mathes was dis-
charged because he was a shop steward for the Carpenters.
737
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
The General Counsel further argues that because of his
activity on behalf of the Carpenters. the Respondent could
reasonably assume that he would be active in the Team-
sters organizational campaign, thus he must have been dis-
charged for this reason as well.
While Mathes testified that he did not make the time-
card error on November 19 which gave rise to his second
reprimand and discharge, the evidence. including Mathes'
testimony, shows that the Respondent reasonably thought
he did. In any event, the evidence does not support an
inference that the Respondent seized on this event to effect
an unlawful discharge.
The undisputed facts are that Friday, November 19, was
the last workday before a week-long shutdown. During the
week of the plant shutdown, Mathes was approached by
his friend and supervisor, Jim McKimm. who told him he
was in trouble because of the timecard error. Mathes testi-
fied that on returning to work on November 29. McKimm
told him that the problem had been resolved: but then 2
days later, on December 1, he was given the reprimand and
discharge.
Thus even accepting Mathes' version totally, it is clear
that the machinery leading to his discharge was set in mo-
tion by the Company prior to any) activity at the plant on
behalf of the Union.
Although Mathes testified that there had been some talk
about the Teamsters in November, his is the only testi-
mony to this effect and I specifically do not credit it. -rom
the totality of the evidence, it is my conclusion that em-
ployees did not specifically discuss contacting the Team-
sters until about the first of December. at which time the
call was made to Larry Moxley who on December 2 hand-
billed the plant. This was the first overt activity on behalf
of the Teamsters. There is no probative evidence of an)
discussion at the plant on behalf of the Union in Novem-
ber, much less is there any evidence that Mathes' interest in
the Union, if in fact he had any. was known prior to his
discharge.
I therefore conclude that the General Counsel has not
established a connection between the Respondent watch-
ing Mathes and finding the timecard violation on Novem-
ber 19 and any suspected activity on his part on behalf of
the Teamsters.
Nor is it reasonable to conclude that the Respondent
fabricated the alleged timecard violation on November 19
in order to discharge an individual active on behalf of the
Carpenters. While it is true that Mathes' activity on behalf
of the Carpenters was well known to the Respondent in
that he had been a union steward, there is no showing that
the Respondent had any animosity at all toward the Car-
penters. Specifically, by November 19 the Carpenters had
already served notice on the Respondent that it intended to
withdraw from representing employees. In this context it
hardly seems likely that the Respondent would discrimi-
nate against any of its employees in order to discourage
activity on behalf of the Carpenters. It was known that the
Carpenters would no longer exist at the plant after Novem-
ber 27.
Finally, the General Counsel contends that the Respon-
dent's first reprimand of Mathes in August for timecard
padding was closely connected to Mathes' activity in Au-
gust wherein two employees were discharged and other em-
ployees threatened to strike unless those employees were
returned to work. During Mathes' discussion with Compa-
ny President William Keller in August, among other
things, Keller told employees "Walk out, I'll nail the doors
shut." This is alleged both to be a violation of Section
8(a)( 1) and proof of animus towards Mathes for engaging
in protected. concerted activity.
Suffice it that the collective-bargaining agreement under
which the parties were operating contained a clause pro-
hibiting any employee from engaging in a strike. For them
to walk out under the circumstances described by Mathes
would have been a breach of contract and not activity pro-
tected by the Act. Where a theatened strike is not protected
activity (as the strike here would not have been) the Com-
pany's reaction to that threat as testified by Mathes could
scarcely be violative of Section 8(a)(1). J. P. Wetherbi'
Construction. Corp.. 182 NLRB 690 (1970). Nor would such
prove animus toward lawful activity on the part of employ-
ees. It proves only animus against unprotected activity and
is not relevant in establishing that the discharge of Mathes
was pretextuous.
From the record as a whole, I conclude that Mathes was
discharged in accordance with the Company's normal pro-
cedure, and that his known activity on behalf of the Car-
penters was not a factor. Accordingly. I conclude that the
General Counsel has not sustained his burden of proving
Mathes' discharge to have been in violation of Section
8(a)(3).
h. Mleredith Dale Spencer
Meredith Dale Spencer was hired by the Respondent on
January 28. 1974. and discharged on March 11, 1977, for
excess absenteeism.
While the General Counsel alleges that Spencer was dis-
charged because of his activity on behalf of the Union.
there is no evidence that the Company had any knowledge
of his union activity, which consisted solely of attending
the first meeting on December 5 and signing an authoriza-
tion card.
As Spencer testified, on the few occasions when he was
interrogated concerning the Union, and advised by super-
visors that the Union would do no good, he agreed. On the
day of the election, a supervisor again told him that the
Union would not do them any good, and asked him to vote
against the Union. Spencer told the supervisor that since he
intended to quit. he did not think it would be fair to vote.
While the supervisor asked him not to quit he went on to
say. "I was going to have, you know, to try to do a little
better on my absentee." Spencer admitted that he had
missed a number of davs as a result of bad weather, not
being able to get his truck started, and sickness.
On the day of the election Spencer asked his supervisor
whether he could be off the following Tuesday so that he
could sell some calves. Thursday of that week, he caught a
cold and missed Friday. He called in and talked to a secre-
tary saying that he was sick and he would be in Monday.
He did not in fact return to work until the following Fri-
day. When he did return, he was told to go to the office
and at that time had a conversation with Nolot who "took
738
KELLER MANUFAC'TIURIN(J (COMPANY
my records and showed me that I had missed quite a bit
during January and February and told me that if I hadn't
already had so much absentees, that the) would accept the
doctor's statement which I took in with me. but seeing as
how I missed so much, that he was just going to have to let
me go.
It is clear from Spencer's testimony that in fact he had
had a substantial absenteeism problem. It is also clear from
the documentary evidence that absenteeism is one of the
causes for which the Company discharged a number of
employees prior to the union activitv. Thus I cannot find
from the totality of the record that Spencer was treated
disparately nor does his discharge otherwise appear to be
pretextual. In addition, there is no evidence that the Re-
spondent would have any particular reason to discharge
him for having engaged in union activit'. In fact his parti-
cipation was minimal. Based upon the record before me I
conclude that the General Counsel has not sustained his
burden of proving that Spencer was discharged in violation
of the Act.
i. Alice l vers 6
Alice Myers was employed by the Respondent on Maix
3, 1976. Upon returning to work on Januars 28. 1977. fol-
lowing approximately 3 weeks of absence, she was advised
that she was terminated pursuant to the compan? polic?
that anyone absent more than 3 davs would be considered
to have quit.
It appears Myers lived in the countr',. about 32 miles
from the plant. On January 7 an unusualls heavy snow fall
occurred in the area causing man\ employees to be absent.
It was particularly difficult for Myers. who w'as effectiv el
snowed in until January 27. She did call her supervisor to
advise him of this fact, and did ask him w hether she had to
call in every day. He responded that she did not, that he
knew she would come back when she could.
Myers attended the December 5 union meeting and
signed an authorization card. She passed out authoriation
cards to other employees: however there is no evidence to
suggest that the Company knew that she was doing this or
knew she was engaged in any union activity.
The General Counsel contends that Respondent's treat-
ment of Myers was a pretext. Accordinglyv. it should be
concluded that the Respondent must have terminated her
because of her union activity.
Although it does appear that the Respondent acted un-
reasonably under the circumstances. such is not an unfair
labor practice. From the Respondent's past historN of
treating people with extended absences as having quit. and
discharging employees for absenteeism. I cannot conclude
on the record before me that Mvers was treated differently
from other employees, either before or after the union ac-
tivity commenced. Her termination mav have been undul,
harsh. However such does not prove an unfair labor prac-
tice. it is only evidence of a discriminatory motive which. I
conclude, is rebutted by a historx of harshness. Given this
lack of disparity. the fact that !Mxlers' union activits was
I hi', , a, her name appc.r a Ihc e n.trc hi , Jf the ch.r. c a ( ,1
25 (A 865O 12
limited, and there is no evidence that it was known to the
Respondent. I cannot conclude that her termination he-
cause of an absence for 3 weeks was a violation of the Act.
.I. B il; t aub
Betty tlaub was hired bx the Respondent the last of Sep-
tember 1975 and was terminated on January 13. 1977. The
reason given for her termination. which the General Coun-
sel contends is pretextuous. is excessive absenteeism.
On January 4 tlaub was ill and did not go to work. She
called in on January 5 sa ing that she had been to a doctor
and would not return to work until Januar, 10. She did
not, in fact. return on January 10, I . or 12. On January 13
her super visor called her and told her that inasmuch as she
did not call in for 2 davs. namel', January I and 12 (Janu-
ars 10 was not counted because there had been a snow-
storm and mann people were absent on that day) she was
considcred to haxe quit pursuant to the compan? rule.
Haubh attended the December 5 union meeting and
signed an authorization card. During a conversation with
her supervisor in December. when asked what good the
Uinion would do she stated, "Well. I think that they could
do a lot of good for me . if I had the union here. I
wouldn't hav e to be doing all these jobs, when I am sup-
posed to he doing just one"
Even though it can be inferred that the Company knew
she was a union activist, and her termination came during
the org;niza tional campaign. I ne ertheless cannot infer
that she w'as discharged because of such union activity. To
make such an inference requires first a finding that the
reason for her discharge was pretextuous. And to find a
pretext here would necessarils require finding that she was
treated disparately. A re iew of the (Company's records
shows that numerous employees, both with more and less
tenure than she, had been discharged for such absenteeism
prior to the union acti its.
The fact is that she called in on Januar 3 5 and advised
the ('ompanx that she w ould not be back to work on Janu-
ary 10. She did not come in on Januars 10 nor did she call.
Neither did she call in on Januars II or 12. Based upon
this record. I must conclude that had she called on January
11 or 12. even given her union activity, she would not have
been terminated. Conversels. given the facts here, I must
conclude that she would have been terminated even absent
the union acti\it'. Accordingly, I conclude that the Gener-
al ( ounsel has not proved that Haub's termination was
violati e of the Act.
k Jot' I'oster
Joe I oster was hired on March 28, 1967. le was dis-
charged (in A.pril 7. 1977. following his second reprimand
for timecard padding. The (General Counsel does not con-
test either the first reprimand for timecard padding issued
to Foster in September 1976 nor the facts giving rise to the
second. It is contended. home er. that what Foster did.
write "cle.nup" on his card after a fellow employee had
punched him out. was a trisial timecard violation costing
the Respondent no more than 20 cents. Thus. given the fact
thit I oster ;as, aL union adherent. a long tenure employee
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in the context of the Respondent's hostility to the
Union, the reprimand and discharge must have been pre-
textuous. From this it should be inferred that the true mo-
tive behind Foster's discharge involved his union activity.
The facts with regard to Foster's discharge are essen-
tially uncontested. Though the violation on April 7 appears
trivial,7 the issue here is not the reasonableness of the repri-
mand, except insofar as unreasonableness may be evidence
of a pretextual motive. But the probative value of such
evidence is dependent on the Respondent's past practice.
As previously noted, before the union activity here, the
Company treated employees harshly when they made triv-
ial mistakes. In fact, Foster testified that in February he
was asked by his foreman, Bill Curts what the Union could
do to help. Foster stated, I told him my main kick was the
way people was treated, that I thought that the union could
help change that and he said 'money is all right' or some-
thing and I said 'no, I think that they can help us that way
too.'"
Given the Respondent's consistent harsh treatment of
employees prior to the union activity here, and given the
fact that Foster was reprimanded two times within a period
of about 7 months for timecard padding, I cannot conclude
that the Respondent treated him disparately nor can I con-
clude that the discharge was for pretextuous reason. Ab-
sent such a finding, I must conclude that the General
Counsel has not proven that the true motive for Foster's
discharge was because of his union activity or to discour-
age union activity.
On the day that Foster's timecard was punched out early
and he put "cleanup" on it, he was taken to see foreman
Lawrence Hoffman and asked about the card. During this
conversation, according to Foster's admission, he "got
pretty damn hot." He was told to clock out and go home
and they would talk to him the next day. Hoffman fol-
lowed him to the door, and stated, "'This is pretty serious
business' and I turned my head and looked at him over my
shoulder and I said 'It will be pretty serious business when
the union gets hold of it too.' ".
The General Counsel offers this to prove that the dis-
charge the next day was motivated by Foster's union activ-
ity. While Foster's statement has some relevance in this
regard, I nevertheless conclude from the total factual situa-
tion that irrespective of the union activity, Foster would
have been discharged as have others on a second repri-
mand for a timecard violation. It may well be that his an-
ger at being reprimanded had something to do with his
discharge but from the total facts I must nevertheless con-
clude that his union activity did not. Therefore the Re-
spondent did not violate the Act in this respect.
1. Thelma Barnett
Thelma Barnett was hired by the Respondent on De-
cember 29, 1971, and quit her employment on December
13, 1976. On December 7 she received a written warning.
7 lhe General ('Counsel notes that the fellow ermploy ee was not dilsChallcd
and was given a lesser discipline than Foster. Ihere is no evidence ho'cseli
that the other employee involved had ai previous reprimalnd within I syear fot
a timecard violation.
and on December 8 a reprimand for carelessness. She had
also received a warning on March 18. 1976. for the same
thing.
On the night of December 13 her foreman Paul Hen-
dricks watched her for 10 or 15 minutes and then got off
the table and told her how she could improve her work
performance. At that point according to Barnett she got
"upset" and "I just told him that I wouldn't do it no more."
She was told that if that was the way she felt, she could go
home. She then sought and received an audience with plant
manager John Heishman. He offered her another job
which she declined to take, because she didn't think she
could do it. After some discussion with Heishman she told
him "if you are not going to do anything for me, I'll go
home then." And she went home and has not returned.
Barnett did sign an authorization card and did attend
the December 5 meeting. Also in an early December meet-
ing with management. including Heishman, it came up that
Barnett had previously been a member of a Teamsters lo-
cal. In fact she had been a steward, although it is not clear
from her testimony whether this was told to management.
Given this prior union activity and the timing, the Gen-
eral Counsel contends that when the Respondent's fore-
man watched and then criticized her on the night of De-
cember 13, her quitting was a constructive discharge in
violation of Section 8(a)(3).
The facts surrounding the warnings of March 18 and
December 7. and the reprimand on December 8 are not in
dispute: and they appear to be consistent with the Com-
pany's pattern and practice. Nor does Barnett dispute that
on the night of December 13 she was working slowly and
that Hendricks gave her a suggestion. She did not offer to
explain why she became upset nor did she indicate why her
foreman would be harassing her, if he was, because of her
union activity.
Based upon these facts, I cannot conclude that the Re-
spondent set out on a course of conduct to harass a union
activist to the point that she would quit. Indeed, the Re-
spondent's actions vis-a-vis Barnett appeared to be no dif-
ferent than its treatment of other employees.
Finally, the Respondent did not discharge Barnett. In
fact when she became upset with Hendricks, the plant
manager offered to transfer her to another job but she re-
fused. Given these factors, I cannot conclude that the Gen-
eral Counsel has sustained his burden of proving a con-
structive discharge in violation of the Act.
m. James East
James East was hired around the first of September 1976
and discharged on March 25, 1977, after a second repri-
mand for poor workmanship. The General Counsel con-
tends that the second reprimand was discriminatory in that
East had not been trained on the job; and that in any
event, both were given pursuant to the Respondent's policy
of increased discipline of employees. This, coupled with
East's union activity (he went to the December 5 meeting,
signed a card, and solicited two other employees to sign
cards) means that his discharge was for union activity in
violation of Section 8(a)(3).
While it does appear that East had not been fully trained
740
KFI.IIER MANIIFACI RIN\G COMFPANY
on the job he was performing when reprimanded, thie fact
that he did careless work as set forth in the reprimanlds of
March 22 and March 25 is not disputed b, him. F or an
employer to reprimand an emploN ee for doing poor work
on a job for which he has not been trained is some evi-
dence that the discipline is pretextual.
However, in the total factual situation here. I cannot
conclude that the Respondent acted towards Ilast anx dif-
ferently than it acted toward other emploees. mans of
whom were discharged for failure to perform their assigned
work. In short, as with many of the other alleged discrilni-
natees. I cannot conclude that in March 1977 Fiast was
then treated disparately vis-a-vis employeces of Respondent
prior to the start of the union activity. Absent disparate
treatment and considereing East's rather minimal union
activity, I must conclude that the General Counsel has not
established that he was discharged in violation of the Act.
n. Roi S. Dearborn
Roy Dearborn was first hired bh the Respondent in
1971. worked about a year. quit, and returned in 1973. At
the time of his discharge on March 8, 1977. he worked in
the lumberyard as a power transfer operator. meaning that
his job was principally to move lumber from point to point.
He also drove a truck, stacked lumber. and drove the to`w
motor.
Dearborn attended the December 5 and subsequent
union meetings, signed a card and handed out cards to
some fellow employees in the lumberyard. While there is
no evidence from which I can infer company knowledge
that he was active on behalf of the Union. it does appear
that he, along with others in the tiumbersard. for about 3
weeks prior to the election wore a union button. From this.
I can infer that his union sympathies were known bv the
Respondent.
During a conversation prior to the election. Dearborn
testified that his foreman, Scott Gravett. said something to
the effect that they would all have a better chance of work-
ing if the Union did not get in. And he stated that there
might be a layoff in the lumberyard. In fact there was a
I-week layoff of all lumberyard employees beginning on
February 28. 1977.
The General Counsel alleges that the la`off of Dearborn
was violative of Section 8(a)(3) of the Act because he was a
known union adherent, his foreman said something about
the possibility of a layoff prior to the election, and the
layoff occurred 3 days following the election. The General
Counsel was unable to explain. however. why the other
seven employees in the lumberyard who were also laid off
were not thought to have been laid off in violation of the
Act. Some of them must have been equally known bh the
Respondent to be union supporters from their having worn
union buttons.
Dearborn's testimony is at best generalized. Even ac-
cepting it at face value, I cannot conclude that his foreman
threatened the layoff prior to the election or that the layoff
was in retaliation against Dearborn for his union activity.
Further there is essentially uncontested testimony from
Respondent's witnesses that in fact during the week of
February 28 there was insufficient work for the lumber-
!,rd crewx and the la.off was required bh business neces-
sit. Fiollov ing the l- week laxoff. all of the emplo eCes were
in fact returned to work including Dearborn. Even
Dearborrl's testimonv on direct examination does not real-
Is deni the lack of work or support the conclusion that
there w\as sufficient work in the lumbervard to make a la,-
off unjustified. Nor did Nicky EIdwards. a fellow lumher! ard
employee, testify that there was sufficient work to make the
layoff unjustified. I therefore conclude that the General
Counsel failed to establish bv a preponderance of the credible
evidence that Dearborn was laid off bh the Respondent on
February 28 in violation of Section 8(a)(3) of the Act.
On October 19. 1976. Dearborn received an oral warning
for taking too much time off. Februar' 7. 1977. he received
a reprimand for insubordination. neither of which disciplines
are contended to be either unsupported bh the facts or in
violation of the Act. On MNarch 1. while he was in layoff status.
Dearborn came to the plant in his automobile and during tha t
time drove recklessly, a fact which he admits. Upon returning
to work on March 8. he was given a written discipline in the
form of an oral warning for having done so.
Then a few hours later. during the lunch break on \larch
8. Dearborn was observed by his foreman driv in- in a fast
and reckless manner around the parking lot. He was i iven
a reprimand and suspended. On March It) the Respondent
discharged Dearborn for his activit'.
The General Counsel contends that Dearborn did not drive
at all recklessly on March 8 and that in ans event other
employees had driven recklessly on the plant grounds, had
"hot rodded" and had not been disciplined therefor. Thus.
contends the General Counsel. discipline and ultimate dis-
charge for such activity is disparate treatment which suggests
that the Respondent had another motive for discharging him.
namely his union activity.
The General Counsel's contentions with regard to
Dearborn's discharge are not supported bx the evidence. First
I reject Dearborn's contention that he was not driving in a
reckless manner on March 8. 1 did not find his generalized
disclaimers to be persuasive, and to the extent that his testi-
mony is at odds with that of Graveit. I credit Gras ett. Beyond
this however, Dearborn's testimony is inconsistent. While he
says that he was not driving too fast. he also testified, 'well.
at one time I hit a chuckhole there and it revved up pretty
good." I cannot believe that the engine would re, up "prett,
good" on depressing the clutch unless he was accelerating
faster than would be reasonable in an enclosed parking lot
where people were walking.
:inallN. the Company's records show that long before
the union activit, here. at least one employee was given a
written discipline for "hot rodding." Dearborn's general-
ized conclusions to the contrart notwithstanding. I believe
he was not treated disparately. Inasmuch as his actions on
March 8 followed only a few hours receipt of a written
discipline for precisels the same type of misconduct, super-
imposed the earlier warning and reprimand. I conclude
that his discharge was not pretextuous. On the contrary, 1
conclude that Dearborn's discharge was justified and that
he would have been discharged under these circumstances
even absent the union campaign.
FdJards took Ia 1-week %action rither ih.ar he I .ia Jf
741
DECISIONS OF NATIONAL lABOR RELATIONS BOARD
o. Ruth Antn Harbaugh
Ruth Ann Harbaugh was hired in August 1971. She was
discharged on December 30, 1976, for excess absenteeism,
having missed work on December 28 and 29. The General
Counsel contends that a discharge for missing 2 days'
work, particularly were she had called in to tell the Re-
spondent that she was sick, was clearly pretextuous and
therefore must have been actually motivated by the fact
that she went to the union meeting on December 5 and
signed a card.
The facts established, however, that Harbaugh was also
absent 24 hours in October, 24 hours in November, and 8
hours in December, in addition to December 28 and 29.
While Harbaugh cannot "remember" these other occasions
of absence. they are not really contested by her or the Gen-
eral Counsel.
Also, while the Company's plant handbook does not
spell out precisely what is considered excessive absentee-
ism, warnings given employees prior to the organizational
activity show that absences of 16 or more hours in 2 of 3
consecutive months is considered excessive. And such is set
forth in a circular dated October 29, 1974. At least six em-
ployees were discharged between January 1975 and De-
cember 1, 1976, for excessive absenteeism. Thus. based
upon the established practice, Harbaugh's absences in Oc-
tober. November, and December were excessive and her
discharge cannot be considered disparate treatment.
Harbaugh's union activity, if known to the Company at
all, was minimal. While she did attend the union meeting.
and sign a card, she did not admit to this when interrogat-
ed by her supervisor, Charles Lone, Sr. There is no evi-
dence that she was one of the key members of the organi-
zational campaign or indeed was particularly active in it.
Finally, Lone, as a witness for the General Counsel, tes-
tified to his antiunion activity on behalf of the Respondent.
As noted above, he impressed me as being a very candid
and credible witness and certainly was not reluctant to tes-
tify against the Respondent. Inasmuch as he was the super-
visor responsible for discharging Harbaugh, it is reasonable
to conclude that had there been any antiunion motive in-
volved Lone would have said so. His silence on this subject
implies that he, as the responsible official who discharged
Harbaugh. did not do so with an antiunion motive. I ac-
cordingly conclude that the General Counsel has not estab-
lished that Harbaugh's discharge was violative of the Act.
p. Gary Mattingly
Gary Mattingly was hired in September 1974 and was
discharged on May 26, 1977, following a reprimand for
having improperly filled out his timecard. At the time of
his discharge Mattingly was employed both as a truckdriv-
er and a tow motor driver. These two particular jobs had a
different rate of pay. Thus, Mattingly was required to state
on his timecard which particular job he was doing at a
particular time. He did this improperly on May 26.
With regard to Mattingly's situation there is no factual
dispute. On December 7 he received an oral warning for
not properly filling out his timecard. On May 10. 1977. he
received a reprimand again for not filling out his timecard
correctly and on May 26 received a second reprimand for
this offense and was discharged.
The General Counsel contends that inasmuch as Mat-
tingly went to the union meeting on December 5. signed an
authorization card, and was interrogated by a supervisor
prior to the election, at which time he was wearing two
union buttons, the reason for his discharge must have been
pretextuous. It therefore follows that the true motive of his
discharge related to his union activity.
On review of the total record in this matter, I note that
other employees were discharged for timecard padding be-
fore the union activity. This and the fact that Mattlingly
was not shown to be particularly active on behalf of the
Union lead me to conclude that he was not treated dispa-
rately, nor was his discharge for a pretextual reason. On
the contrary, from the uncontested facts, Respondent cer-
tainly had reasonable cause to discharge him when it did.
As his discharge was consistent with past company prac-
tice, I believe it would have occurred even absent the or-
ganizational campaign. Accordingly. I conclude that the
General Counsel has failed to establish that Mattingly
was discharged in violation of 8(a)(3) of the Act.
q. Mar) Carver, Edna Lawson, Homer Wierman, and
Edith Adamson
The allegations concerning the discharges of Mary Car-
ver, Edna Lawson, Homer Wiseman, and Edith Adamson
will be treated together because their situations are sub-
stantially the same and differ markedly from the facts sur-
rounding the other terminations.
Carver, Lawson, Wiseman, and Adamson worked in the
chair finish department. Their foreman was Clarence Wise-
man (no relation to Homer). On April 11. following a spot
check by supervision, referred to in the record as an "open-
ing up," it was determined that the quality of the finish was
not up to standard. Wiseman thereafter gave reprimands to
all employees doing finish work on the chair line, except.
for reasons not explained on the record, Adamson. In any
event, Carver, Lawson, and Wiseman each received a writ-
ten reprimand.
Carver testified she was shown I chair by Wiseman and
asked to see the other 37. Why Wiseman did not show her
the other 37 is not explained, inasmuch as he was not
called as a witness.
lawson testified without contradiction that she was not
at work on the day that the chairs were finished and that
she told Wiseman this. Nevertheless her reprimand stood,
Homer Wiseman testified without contradiction that he
did not even receive a copy of the April II reprimand.
Perusal of the disciplines issued by the Company from
January 1975 through November 1976, prior to the union
activity. discloses only one instance of mass discipline of
employees in a department following a poor "opening up."
That occurred on July 8, 1976. The supervisor was Leo
(Goettelfinger, and the department was dinette finish. Six
employ ees, including Edna Lawson, were given "oral
warnings." Thus, prior to the union activity the Company's
records show that in essentially the same type of situation
wherein reprimands were given on April I , oral warnings
were given. The reprimands on April II were a substantial
deviation from past practice.
742
KELLER MANIFAA CIURING( (OMPANY
Beyond that, from January 1975 through November 19.
1976. the Compans issued 83 oral warnings, 29 written
warnings. and only 7 reprimands for poor workmanship.
The nature of the poor workmanship set forth in the warn-
ings generally appears to be as serious as in the reprimands
given by W'iseman on April 11.9
Analysis of the written disciplines prior to the union ac-
tivits, shows that even for rather serious poor workman-
ship, the Compans's policy was to issue an oral warning
and then, presumptively following its system, for repeated
offenses would give written warnings and then reprimands.
The numbers show that prior to the union activity Adam-
son would not have received the reprimand she did on May
6 nor would the other chair line employees including Car-
ver, Lawson and Wiseman have been reprimanded. At best
they would have been given oral or written warnings.
In addition to these substantial deviations by Wiseman
from the normal company practice, I note that Lawson was
not even at work on the day the allegedly poor workmen-
ship was done, and Homer Wiseman was not told of the
reprimand.
From the facts I may and do infer that Wiseman's mo-
tive was something other than strict discipline of employ-
ees for poor workmanship. His motive, I believe, stemmed
from his animus toward the union activity. and was intend-
ed to interfere with employees' free choice of a bargaining
representative. In this I rely upon the undenied and other-
wise credible testimony of Lawson.
A few days before the election Clarence Wiseman talked
to a number of employees, including Lawson who at that
time was wearing two union buttons. He asked her to take
them off and she said that she would not. The next day he
told her to take them off. "He didn't ask me, he told me to
take them off. I said, 'No, they're personal.' "
Since the discharges of Craver. Lawson, Wiseman, and
Adamson were based upon a second reprimand within a
year for the same offense, and since the first reprimand of
each was unlawfully motivated it follows that the dis-
charges were violative of the Act. I conclude from the to-
tality of the evidence that absent the union activits here,
these four employees would not have received the initial
reprimands. Accordingly they would not have been dis-
charged when they were. even assuming the correctness of
Wiseman's determination that they should hase been disci-
plined for their alleged poor workmanship in June. lhis is
particularly the case when one considers that l awson had
14 years of employment. Clarence Wiseman 27 sears. and
Adamson over 5 years.
The fact that the General Counsel has failed to establish
by a preponderance of the evidence other violations does
not foreclose a finding that these particular discharges
were violative of Section 8(a)(3).
r. Cassie Mae Barnum
Cassie Mae Barnum was hired on June 20, 1972, and
discharged on April 22, 1977. following her second repri-
:or exa mple on Juls S. 19DaleS Si.nrx ..1 aid lt' 1ra ural 9.rI n liorr
rmpping t35 p ,cc' ' . inh, too i.dc On J.l 21 If76. Russell 5,ilham.n
.et. e.'d in orai .alnr flor ilr kOn2 42S pwer io. thin to i uic (0iI Ji. 21
I' II t \ }il ii clc I 11i n ,,e1 11 lN Lki C 2 42 ouit If , . n If 450 ipetes
mand for poor workmanship. Barnum was known to be a
union supporter having openls discussed the Union with
fellow employees in situations where supervisors would
have to hear. Beyond that she w\as one of the union oh-
servers at the election.
As with C(arver, Lawson. WVlsem,n. and Adamison. Bar-
num was discharged upon receipt of a second reprimaniid
for poor workmanship issued bh (Clarence Wiseman.n. Ihe
first reprimand, on March 3. wias for purportedls poor
quality cowtailing. In the second Wisemlan cl.iimed that
even though instructed to the contrary, Barnum improperly
sprayed buffet drawer fronts.
The facts alleged in these reprimands. however. were
credibl, denied by Barnum. -Ihus, unlike those situartions
where I have found no evidence of disparate tre.alent.
here I conclude that Barnum should not hiave been repri-
manded, and would not have been but for her union actlXi-
ty. This is not a case of a supervisor rigorously enforcinp
plant rules. Here, I find, the supervision had no factual
cause to write the discipline. This conclusion is further sup-
ported by the fact that Barnum was a S-year employee. yet
received her first discipline for alleged poor workmanship
on December 30. 1976, (a written warning) and her first
reprimand shortly following the election.
Given company knowledge of her union acti it,: com-
pany animus in general and Wiseman's in specific: and the
lack of a factual basis for the reprimands. I conclude the
proffered reason for Barnum's discharge is pretextuous. I
infer that the true motive involved her union activit and
that her discharge was siolatii e of the Act
s. Tambra C(recelieus
Tambra Crecelieus was hired on Juls 28. 1976. to work
in the sand room at the Corydon plant. In April 1977 she
was transferred to the New Salisbury plant and 2 weeks
later laid off because. purportedly, the Respondent did not
have ian jobs available for her which she was physically
capable of doing. given her relatively small size. (She testi-
fied that she is 5 feet tall and weighes "almost 100
pounds.") [he General Counsel alleges that the lasoff of
C recelieus was violative of 8(a)(3) of the Act because she
was a known union adherent and there must have been
jobs available for her to do.
While C(recelieus' transfer is not really explained, neither
is it alleged to be a violation of the Act. Implicit in her
testimons is that others were being transferred to other
jobs at about the same time, indicating that the ('ompanq
was reducing its work force in the sand room.
Given that the transfer itself was not unlawful. and there
is no evidence that it was, the facts surrounding her job at
the New Salisbury plant strongly suggest that the C(ompan)
had a legitimate reason for laying her off the only avail-
able work was too onerous for one of her small size. Fur-
ther, as C'recelieus testified when she was laid off, Nolot
"told me that he hoped that there wasn't any hard feelings
about ms job and that if thes had a job come open, if it
was one I would bhe able to handle, thes would call me
back."
'Ihat C recelieus was a known union supporter can be
inferred from the fact that prior to the election she wore
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three union buttons at work. T here is, however, no other
evidence of any particular union activity on her part other
than talking to fellow employees in her department. Cer-
tainly there is no evidence that she was one of the driving
forces of the organizational campaign or was she any more
active than any of the several hundred other employees
who went to the union meeting and ultimately voted for
the IUnion. From the totality of the evidence in this matter,
I cannot conclude that Crecelieus' layoff was pretextuous
nor is there any basis to infer that the true motive behind
the layoff was her union activity. Accordingly, I conclude
that the General Counsel did not prove that her layoff was
a violation of the Act.
2. The transfers
a. Nickv Edwards
Nicky Edwards was hired on May 25, 1968, and has
worked continuously for the Respondent except for a 3-
year military break. He had at one time worked as a fore-
man but in February 1976 was cut back to being a lumber
inspector, a job he held until December 7, 1976.
Edwards was involved in the initial organizational ef-
forts including, on December 6, circulating authorization
cards among employees in the break area and in the back
of the maintenance shop. He testified without contradic-
tion that on both December 6 and 7, Scott Gravett, his
foreman, was present when he was passing out authoriza-
tion cards.
Edwards also testified that on one occasion, when he
was passing out cards on break, Gravett stated that he did
not believe in the Teamsters organization, that they were
connected with the Mafia and that "we could be sorry if
the Teamsters ever got in at Kellers."
On the morning of December 7, Edwards was informed
that he was being transferred out of the yard and put into
the finish mill, the effect of which was to cause him a re-
duction in pay. No reason was given when he asked super-
vision why he was being transferred. He finally asked John
Hoback, the vice president of production, who was then
acting plant manager, why he had been transferred when
others in the lumberyard with less seniority were not. Ho-
back told him that seniority "didn't mean nothing."
The transfer of Edwards was, I conclude, unlawfully mo-
tivated. He was a relatively senior employee.is He was
transferred the day after he began passing out union cards
with the knowledge of management. And the transfer was
unexplained by the Respondent. Under these circumstan-
ces I conclude that the transfer was violative of Section
8(a)(3). That Edwards was known to high supervision, e.g.,
Holback, to be a leader among employees, makes plausible
the Company's discrimination against him or order to
thwart the organizational campaign.
The subsequent transfers of Edwards do not appear to
have been discriminatorily motivated, particularly inas-
much as his most recent transfer was as a result of his
bidding on the job. Nevertheless, I will recommend that
Edwards be reimbursed for any loss of wages as a result of
the transfer on December 7 until the transfer to the job on
which he bid.
b. Sarah Sizemore
On January 3, Sarah Sizemore was transferred from the
job of tennor offbearer to the job of ripsaw offbearer, and
as a result, went from a base rate of $3.43 per hour to
$3.25. The General Counsel alleges this transfer of a
known union supporter was violative of Section 8(a)(3).
According to Sizemore's testimony. on January 3 she
was advised by her foreman that the Company had de-
termined to make a classification change and that the ten-
nor offbearer job would be eliminated. The basic duties
performed by the offbearer, except for setting up the ma-
chine, would be performed by a tennor attendant. While it
appears that she could have been made a tennor attendant,
the pay for the attendant position was five pay grades less
than that for the offbearer's position. Accordingly. when
her foreman told her of the change in classification she was
given the opportunity to transfer to one of two other jobs,
where the downgrade was only one step.
Although Sizemore was known to have been a supporter
of the union prior to the time that the Company changed
the job classification and transferred her, I cannot con-
clude that her transfer was in an attempt to discriminate
against her for union activity or inherently had that effect.
There is no evidence of a reason for her transfer other
than the determination that the job duties performed by
the offbearer could be performed by a lower classification
of employee. There is no evidence to indicate that such a
change in job classification was not reasonable nor is it
alleged that the change in the job classification itself was
violative of the Act. The only allegation is that the transfer
of Sizemore to a different job was violative of the Act and
that she should have been offered the tennor attendant job.
However, the attendant job paid less than the job to which
she was transferred.
On the state of the record before me I cannot conclude
that the Respondent's action in changing the job classifica-
tion was violative of the Act and therefore, without more,
the effect as to Sizemore was not a violation. To find a
violation here would be tantamount to concluding that af-
ter the beginning of an organizational campaign an em-
ployer may not with impunity make any business decision
which might affect the job duties of employees.
3. The reprimands
In addition to the general allegation that the Respondent
violated the Act by more rigorous application of discipline,
the General Counsel has alleged that three specific individ-
uals were disciplined in violation of Section 8(a)(3).
On December 7, Edwards' new foreman, Norman The-
vonet, gave him a reprimand for having taken a break from
1:07 to 1:15 p.m. in violation of a policy, at the time un-
known to Edwards, that breaks could not be taken between
the hours of 12:40 and 1:40 p.m.
-o The company rule book states: "In cases of transfers, employees of
senior standing shall be given preference in sasing in the department a:-
,ording to seniority"
744
KELLER MANUIFAC TURING ('OMPANY
The reprimand of Edwards for a relatively trivial offense
was, I conclude, a substantial deviation from the Com-
pan\'s disciplinary policy. A review of disciplines issued bh
the Company in 1976 prior to the union activity indicates
that for this type of offense Edwards would have received
an oral warning.
When Edwards asked Thevonet why he was being given
a reprimand rather than an oral warning. Thevonet stated
that they (higher supervision), told him to issue the repri-
mand.
Given that Edwards was known to be one of leaders,
that the reprimand occurred within a few days of the be-
ginning of the organizational campaign, and that it repre-
sented a substantial deviation from past practice, I con-
clude that the motive behind the reprimand was Edwards'
union activity. The reprimand was thus violative of Section
8(a)(3).
The allegations involving Nanc 5 Pittman. Barbara
Miller and Sharon Snyder are similar. Each attended the
December 5 meeting and each demonstrated support for
the Union by passing out authorization cards. In Decem-
ber Pittman and Miller each received an oral warning for
poor workmanship. Snyder received a written warning.
also for poor workmanship. These warnings are alleged to
be violative of Section 8(a)(3).
On the record here. I conclude that the General Counsel
has not established that their disciplines were discriminato-
rily motivated.
First, as noted above. there were many oral and written
warnings for poor workmanship both before and after
these. The General Counsel. however, has not indicated
how the discipline of these three differs from the norm.
Secondly, it is uncontested, although minimized, that
each. in fact. did do poor work as indicated on the warn-
ing.
V TIH II FlK[ O: TrF t i\ AIR I sBOR PR \(s1( S I pO,.
( (O\Mii R( I
The unfair labor practices found are unfair labor prac-
tices affecting colmmerce and the free flosr of ,. lrnlcr-cc
and tend to lead to labor disputes disrupting ci omiimereC
within the meaning of Section 2(6) ald (7) of the Act.
\ II HFi RE \1 iD)
Having found that the Respondent has, engited in cer-
tain unfair labor practices, I shall recomme nd thhat it be
ordered to cease and desist therefrom and to take cert-tain
affirmative action designed to effectuate the policies of the
Act. The Respondent will be ordered to offer \Mari Smith.
Marx C(arer. E dna I awson. HIomer Wiseman. Edith
Adamnison, and Cassie Mae Barnum reinstatement to their
former positions of emploN ment or. if those jobs no longer
exist, to substantiatll equivalent jobs. without prejudice to
their seniority or other rights and privileges and to make
them whole for anx loss of wages or other benefits that
the, mnav have suffered as a result of the discrimination
against them in accordance with the formula set forth in
F. I. Wl'oolworth (Cm'nlpoll, 90 NILRB 289 11950). and
Fl,)l(id Steel ( or,,poriol. 231 Nl.RB 651 (1977).1' I'he Re-
spondent w\ill also be ordered to make whole Nick) Ed-
wards for an, loss of wages or benefits. with interest, from
the date of his unlaw ful transfer to the date he was trans-
ferred to the job on which he bid.
[Recommended Order omitted from publication.]
See geLnerall. Ise Plllumhir a Haiui ( I IS Ni RB 'Il. i'q(2)
745