Kidde, Inc.

National Labor Relations Board - Board Decisions

May 29, 1987

284 N.L.R.B. 78 (N.L.R.B. 1987)

78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Walter Kidde, Division of Kidde, Inc. and Marvin
H. Rogers and John C. Whitaker, Jr. and
Dwayne V. Isley. Cases 11-CA-11970, 11-CA-
11970-2, and 11-CA-11997
29 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 15 October 1986 Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
and motion to strike portions of the Respondent's
exceptions. 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions, to modify his remedy, 3 and to adopt
the recommended Order.
As more fully set forth in his decision, the judge
found, inter alia, that the Respondent discharged
employee Whitaker in violation of Section 8(a)(3)
because it knew of or suspected his involvement
with the Union. Another employee, Rogers, was
also found to have been unlawfully discharged.
In its exceptions, the Respondent contends that it
did not violate the Act by discharging Whitaker
and Rogers because it had a good-faith belief that
Whitaker drank liquor in the plant and Rogers
brought a bottle of liquor into the plant. However,
we find, based on the facts set forth below, that the
Respondent was acting with a total absence of
good faith.
Whitaker's Discharge
Whitaker was a long-term employee with a good
employment record. He was accused by employee
1 The General Counsel argues in her motion that the Respondent's ex-
ception concerning the identity of the questioner who posed a line of
questions on the record was improperly raised as an exception The
motion is denied because a determination of who asked the questions is
irrelevant to our decision
2 The Respondent has excepted to some of the Judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law Judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951)
We have carefully l examined the record and find no basis for reversing
the findings.
Member Cracraft, who did not participate in Sunnyvale Medical Clinic,
277 NLRB 1217 (1985), finds it unnecessary to rely on that case.
3 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U S C § 6621.
284 NLRB No. 8
Patton, an admitted alcoholic, of appearing to take
a sip of a liquid that Patton believed to be alcohol.
Without further investigation and based solely on
the statement of Patton, the Respondent discharged
Whitaker. Following Whitaker's termination, the
Respondent was informed by other employees that
Patton was offering employees liquor on the day in
question. This information confirmed Whitaker's
version of his conversation with Patton concerning
the drink. The Respondent disregarded these facts.
The Respondent alleged that its failure to take
action against Patton was due to the fact that Pat-
ton's accusers refused to sign statements against
Patton.
Roger's Discharge
Like Whitaker, Rogers was a long-term employ-
ee with a good record. Rogers was accused by em-
ployee Smith of bringing a bottle of liquor into the
plant. However, Smith refused to sign a statement
to this effect. The Respondent accepted Smith's
oral statement, while rejecting the statements of
other employees about similar conduct by Patton
because they refused to sign them. Smith informed
the Respondent that Long would corroborate her
statement. Without questioning Long, the Respond-
ent terminated Rogers based solely on Smith's un-
signed statement. The day after the discharge of
Rogers, the Respondent was told by Long that he
had not seen Rogers with a bottle of liquor.4
The findings of the judge, and the record as a
whole, support the inference that the Respondent
knew of Rogers' union activity. Thus, the Re-
spondent was aware that union activity was com-
mencing, as shown by the comment by Supervisor
Dodson on 11 December 1985 that he had heard
that Whitaker had attended a union meeting.
Smith, who was staunchly antiunion, knew that
Rogers attended the 12 December 1985 union
meeting. The judge correctly assumed that an an-
tiunion employee, who knowingly takes steps
against another employee likely to result in dis-
charge, would divulge that individuals' union activ-
ity to the Respondent. Further, Rogers was warned
by Dodson to stay away from Whitaker who was
"trying to start a union" and by Supervisor Zim-
merman that Whitaker was starting trouble at the
plant. Also Rogers refused the request of Supervi-
sor Hawk to obtain signatures for the antiunion pe-
tition circulated 6 months before his discharge.
Smith was aware of Rogers' activity and when she
4 It is irrelevant that Long, who testified at the heanng about seeing
Rogers with a druik in the plant, may have lied to the Respondent. The
Respondent terminated Rogers without investigating whether Long cor-
roborated Smith and the next day disregarded the lack of corroboration
of Smith At most the Respondent heard only what it wanted to hear.
KIDDE, INC. 79
requested "confidentiality" and refused to sign a
statement, her actions were based on her concern
about being "involved in situations." As manager
of employee relations, Hughes stated the "prob-
lem" Smith was referring to related to her involve-
ment with decertification activity. From this the
Respondent could infer that Rogers was involved
with the Union.
In finding that the discharge of Rogers was due
to his union activities, we note that the facts found
by the judge support an inference that the Re-
spondent was aware of Rogers' activities.
We also find that the Respondent believed that it
was necessary to discharge Rogers in order to vin-
dicate and camouflage Whitaker's discharge. Dis-
charging Rogers provided an "aura of legitimacy"
to the termination of Whitaker and violated the
Act. Armcor Industries, 217 NLRB 358 (1975),
enfd. in relevant part 535 F.2d 239 (3d Cir. 1976).5
The Respondent argues that a discharge based
on information obtained in good faith is not unlaw-
ful. United Artists, 277 NLRB 115 (1985). The
judge's decision, however, is not to the contrary.
We specifically note, as did the judge, the long-
term employment of Whitaker and Rogers and the
good employment record of both. The facts that
the discharges occurred within 4 days of the union
meeting arranged by Whitaker and attended by
both Whitaker and Rogers, that the accuser of
Whitaker was an alcoholic with an interest in di-
verting suspicion from himself, that the accusation
against Rogers was based on an unsigned statement
of one employee which was denied by Rogers, and,
especially, the perfunctory nature of the investiga-
tion conducted by the Respondent, indicate lack of
good faith. See Tama Meat Packing Corp., 230
NLRB 116 (1977). These facts show the pretextual
nature of the reasons given for the discharges of
Whitaker and Rogers.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Walter
5 Unlike our dissenting colleague, we infer that the Respondent knew
of Rogers' union activities. The dissent concedes that the Respondent
knew that Rogers had refused to obtain signatures on an antiunion peti-
tion Contrary to the opinion expressed in the dissent, that, itself, is pro-
tected activity Further, the totality of the Respondent's conduct estab-
lishes that it wished to rid itself of union sympathizers. The Respondent
was aware of Whitaker's union activities and tried to separate Rogers
from Whitaker by the warnings of its supervisors. Given the summary
way in which it discharged Rogers, it is a reasonable inference that the
Respondent concluded that Rogers' sympathies, like those of Whitaker,
were with the Union. Additionally, it could not very well discharge Whi-
taker for allegedly being involved with alcohol and not terminate Rogers
who also allegedly brought alcohol into the plant. It is a reasonable infer-
ence that the Respondent swept up Rogers in the terminations so that it
would not appear to be engaged in disparate treatment
Kidde, Division of Kidde, Inc., Mebane, North
Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
I agree with my colleagues' adoption of the
judge's finding that the Respondent both unlawful-
ly interrogated and unlawfully discharged employ-
ee John Whitaker. Contrary to the majority, how-
ever, I disagree with the judge's finding that the
Respondent violated Section 8(a)(3) by discharging
employee Marvin Rogers.
The Board has long held that in order to estab-
lish a prima facie case of an 8(a)(3) violation, the
General Counsel must prove that the respondent
had knowledge of the employee's union activities.'
Here, it is undisputed that there is no direct evi-
dence that the Respondent was aware of or sus-
pected that Rogers had engaged in protected con-
certed activity. Unlike my colleagues, I find noth-
ing in the Respondent's supervisors' remarks to
Rogers, Rogers' refusal to obtain signatures on an
antiunion petition, and employee Smith's actions or
statements to the Respondent to support an infer-
ence that the Respondent had knowledge that
Rogers was involved with the Union. Rather, the
majority's inference is based on nothing more than
rank speculation and conjecture. Surmise is no sub-
stitute for proof, which is totally lacking here.2
Further, the majority's additional finding that
Rogers was discharged in order to vindicate and
camouflage Whitaker's discharge is nothing more
than an implicit admission that knowledge of
Rogers' union activities has not been established.
Consequently, I find that the General Counsel has
failed to prove that the discharge of Rogers was
related to his or Whitaker's union activity and, ac-
cordingly, would dismiss this allegation of the
complaint.
Complas Industries, 255 NLRB 1416 (1981), enf denied on other
grounds 714 F.2d 729 (7th Cir. 1983).
2 Leyendecker Paving, 247 NLRB 28 (1980).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
80

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate any em-
ployees concerning union activity.
WE WILL NOT discourage membership in Chauf-
feurs, Teamsters and Helpers, Local Union No.
391, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organiza-
tion, by discharging or otherwise discriminating
against employees with respect to their wages,
hours, or other terms and conditions or tenure of
employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Marvin H. Rogers and John C.
Whitaker Jr. immediate reinstatement to their
former positions and we shall make them whole for
any loss of earnings they may have suffered by
reason of our discrimination against them, plus in-
terest.
WE WILL notify Marvin H. Rogers and John C.
Whitaker Jr. that we have removed from our files
all references to their discharges, notifying them
specifically that this has been done and that these
unlawful disciplinary actions will in no way be
used against them in the future.
WALTER KIDDE, DIVISION OF KIDDE,
INC.
Ann B. Wall, Esq., for the General Counsel.
Charles P. Roberts III, Esq. (Haynsworth, Baldwin, Miles,
Johnson, Greaves & Edwards), of Greensboro, North
Carolina, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding was heard by me in Graham, North Carolina,
on 28, 29, and 30 July 1986, on an original unfair labor
practice charge filed on 1 April 1986, and a consolidated
complaint issued on 3 June 1986, alleging that Respond-
ent independently violated Section 8(a)(1) of the Act by
directing an employee to remove a union button, by
questioning an employee concerning union activity, and
by threatening discipline in reprisal for union activity.
The complaint alleges further that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging em-
ployees John C. Whitaker Jr. and Marvin H. Rogers be-
cause of their union activity, and violated Section 8(a)(4)
and (1) of the Act by issuing a written warning to, and
then discharging, employee Dwayne V. Isley because he
threatened to file charges with the National Labor Rela-
tions Board. In its duly filed answer, Respondent denied
that any unfair labor practices were committed. Follow-
ing close of the hearing, briefs were filed on behalf of
the General Counsel and the Respondent.
On the entire record in this proceeding, including con-
sideration of the posthearing briefs and my opportunity
directly to observe the witnesses while testifying and
their demeanor,' I concluded as follows
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with a plant lo-
cated in Mebane, North Carolina, where it is engaged in
the manufacture of fire extinguishers. In the course of
the operation, during the 12 months preceding issuance
of the complaint, a representative period, Respondent re-
ceived at it facility goods and material valued in excess
of $50,000 directly from points outside the State of
North Carolina, and shipped from that facility, products
valued in excess of $50,000 directly to points outside the
State of North Carolina.
The complaint alleges, the answer admits, and I find
that Respondent is now, and has been at all times materi-
al an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Chauffeurs, Teamsters, and Helpers Local Union
No. 391, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Teamsters) is now, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Issues
The issue of primary remedial concern in this proceed-
ing emerges from the discharge of three employees. The
first to be terminated was Dwayne Isley. Prior to 9 De-
cember 1985, the day of his discharge, 2 Isley had not en-
gaged in union or any other activity protected by the
Act. Nonetheless, the General Counsel contends that this
discharge violated Section 8(a)(4) and (1) on grounds
that it was triggered by Isley's threat to go to the
"Labor Board." Respondent argues that this could not
1 Credibility resolutions hereinafter made are occasionally accompa-
nied by objective rationale. This is merely intended to reinforce, not dis-
count, perceptions gained through firsthand observation of all witnesses
Needless to say, unmentioned testimony is rejected to the extent that it is
irreconcilable with expressly credited evidence.
2 Unless otherwise indicated, all dates refer to '1985
KIDDE, INC. al
have been the case as Isley was terminated prior to any
such threat, and pursuant to Respondent's policy reqpir-
ing automatic discharge of any employee receiving three
written reprimands within a 12-month period.
John Whitaker and Marvin Rogers were discharged on
Monday, 16 December. Unlike Isley, the lawfulness of
the action against them turns on union-related issues.
The foreground shows that Respondent's employees
had been unrepresented since 1970, when an affiliate of
the Communications Workers of America was decerti-
fied. In the interim, the Teamsters engaged in several un-
successful attempts to organize the Mebane plant. Most
recently, on 28 June and 10 July, Teamsters representa-
tives handbilled employees at plant gates. However, that
effort was abandoned when that Union in late July re-
ceived a petition signed by some 130 of Respondent's 250
employees, signifying their disinterest in representation.
Several months later in November or early December,
Whitaker contacted the Teamsters, arranging a meeting
for Thursday, 12 December. Only four active employees,
including Whitaker and Rogers, attended that meeting.
As indicated, the latter were terminated on 16 Decem-
ber, only 4 days later. 3 Respondent answers the General
Counsel's claim of discrimination by denying knowledge
of the union meeting or its attendence by Whitaker or
Rogers and by asserting affirmatively that both were
lawfully terminated for offending Respondent's policy
concerning the possession and use of alcoholic beverages
on plant premises—grounds challenged by the General
Counsel as pretextual.
Apart from the foregoing issues of discrimination, the
General Counsel avers that Respondent violated Section
8(a)(1) by various statements intimidating employees in
the exercise of their protected right to engage in union
activity.
B, Concluding Findings
1. The Isley discharge
The General Counsel's position with respect to the ter-
mination of Isley rests on a critical, threshold issue of
credibility, namely, whether the determinative events
leading to his termination preceded or followed his
threat to protest his supervisor's treatment by going to
the "Labor Board."
Otherwise, perfectly legitimate discharge is suggested.
Respondent's disciplinary policy requires automatic ter-
mination on issuance of a third written reprimand within
any consecutive 365-day period. Prior to 7 December,
Isley's active disciplinary record was limited to a single
written reprimand. However, at that time, the relation-
ship between Isley and his supervisor, Ron Dodson, had
been fractious and in a state of degeneration for about 5
months. During this period, Isley repeatedly complained
of harassment by Dodson. And on at least four occasions
between August and October, Dodson singled out Isley's
bad attitude in verbal warnings. On 30 October, Dodson
3 A third employee who attended the meeting, Kimus Jeffries, was ter-
mmated on 7 February 1986, with attendance problems as the stated
ground. No claim of discrimination is made on his behalf in this proceed-
ing
warned Isley that he would be discharged "if he lost his
cool one more time."4 In addition, Isley, during this
timeframe, had been cautioned by Personnel Manager Ed
Hughes that he could lose his job over his continued
feuding with Dodson, a sentiment echoed to Isley by
Foreman Mike Zimmerman.
On 7 December, Dodson issued a written reprimand to
Isley based on faulty attendance. The reprimand was
protested by Isley. Personnel Manager Hughes indicated
that it would be withdrawn, agreeing with Isley that it
had been issued in error.5
The day before, Friday, 6 December, Isley had been
transferred to another job for medical reasons by
Dodson. Isley apparently was dissatisfied with the assign-
ment. In his anger, Isley used language in the presence of
three employees, including a female, Diana Bare, to the
effect that "Ronnie Dodson had done f— me."
On Monday, 9 December, Dodson gave Isley a verbal
warning for being out of his work area at the buzzer.
Isley disagreed with this action, once more claiming har-
assment on Dodson's part. A further verbal warning was
issued that morning because Isley was not wearing his
safety glasses or earplugs while in his work area. Here,
too, Isley suggested impropriety on Dodson's part be-
cause the line had stopped in anticipation of the break
bell.
It was against this background that Dodson called
Isley to his office later that day. At Dodson's request,
another supervisor, Mike Blalock was in the office be-
cause Dodson anticipated a hostile reaction from Isley.
In the course of that session, Isley was told that the 7
December attendance writeup would be withdrawn, but
that he would receive a written reprimand for the pro-
fanity he used in front of Diana )3are on 6 December.
This was the second writeup issued Isley within the 12-
month period; he knew that one more would result in
discharge. As indicated, prior thereto, Isley had engaged
in no activity protected by the Act.
The new warning drew a heated response from Isley,
who once more charged Dodson with harassment. Ac-
cording to Isley, he went on to state, prior to any mention
of further discipline, that "if he [Dodson] kept on harass-
ing me, I was going to call the Labor Board to see if I
could find out what could be done about his harass-
ment."
Dodson, with corroboration from Foreman Blalock,
contradicted the sequence described by Isley. He claims
Isley was discharged effectively prior to' any reference to
the Labor Board. According to Dodson, on issuance of
the second warning, Isley responded in anger, "holler-
ing" at both he and Blalock. To this, Dodson claims that
he responded "that's it. . . I can't put up with you any-
more." However, before Dodson physically could com-
plete the third and final writeup, Isley walked out, men-
tioning his intent to go to the Labor Board as he went,
4 See R Exh. 6
5 See R Exh 1(d). Under Respondent's attendance policy a written
warning is issued after four offenses in any 60-day calendar period. See
R Exh. 7. In this instance, the written warning was addressed to a fourth
occurrence, taking place on the 61st day, and hence was not a proper
predicate for formal citation
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
while also advising that he was on his way to the office
of Personnel Manager Ed Hughes.6
Blalock testified that he was present in the office as a
witness because Dodson did not think the meeting with
Isley would go well. He confirmed that when Isley was
informed of the abusive language writeup he became
upset, expressing rudeness and anger in a loud tone of
voice, while accusing Dodson of harassing him until
Dodson stated, "Well I haven't got to put up with this."
Dodson and Isley were then described as arguing about
the discharge, at which time Isley grew angrier, finally
stating "Well you ain't heard the last of this, I will see
the Labor Board." Isley, according to Blalock, then
slammed the door and walked out.
For obvious reasons, the General Counsel's case is de-
pendent on this narrow issue of credibility. If in fact
Isley had been informed of the issuance of the third
warning or his discharge prior to any reference to the
Labor Board, all discipline issued in his case would be
beyond the purview of the Act. Despite the significance
of this conflict, none of the witnesses to the critical
events impressed as entirely trustworthy and, despite my
strong reservations as to Dodson, I am unwilling to sus-
tain the General Counsel's view on the strength of the
uncorroborated testimony of Isley. Isley was totally un-
convincing. He impressed me as prone to perceive facts
in a fashion fitting his interest and then to store them in
memory so that they might be recalled in twisted state to
further personal ends. 7 This view is confirmed by the
quickness with which he excused criticism, always plead-
ing that the blame lay with others or elsewhere. ,Isley,
while under oath, also demonstrated an inclination to
pass on as fact matters that were actually beyond his im-
mediate knowledge. His attempt to mitigate his own mis-
behavior embroiled his testimony in an irreconcilable
conflict with his sworn prehearing affidavit. These mis-
givings are compounded by my general reluctance to
give overarching weight to uncorroborated testimony as
to precise chronology or precise words uttered in the
course of a heated conversation, where recall is often
blurred by excited exchanges and recriminations. In
terms of the probabilities, it is noted that Isley did not
threaten to go to the Labor Board in connection with his
frequent assertions of harassment in the past. In this
light, it is reasonable to assume that Isley expressed a
desire to seek assistance of an outside agency only after
Dodson made it clear that Isley had lost his job.
Accordingly, as I reject Isley's testimony, it is con-
cluded that his third and final warning and discharge on
9 December occurred prior to any protected activity
6. Dodson acknowledged that in an interview with a Board agent prior
to the hearing, he 'stated that Isley said nothing about going to the Labor
Board until a month and a half after the firing. He later explained, how-
ever, that the more he thought about it the more he realized this was an
erroneous assertion
7 The General Counsel correctly observes that Personnel Manager
Hughes' description of Isley's account squares with Isley's present testi-
mony. Hence, it is argued that the testimony of Hughes supports Isley's
account However, considering Isley's proclivity to ingest events in the
light most sympathetic to his interests, he was entirely capable of altering
the sequence so as to convince Hughes that his threat to go to a state or
Federal agency provoked his discharge
and, hence, Respondent did not in this regard violate
Section 8(a)(4) and (1) of the Act.
2. The discharges of Whitaker and Rogers
a. The common elements
The cases of Whitaker and Rogers present an entirely
different scenario. Each had relatively lengthy employ-
ment histories with the Employer and both were reputed
to be good workers. In recent years, neither had any
written warnings or other form of discipline against their
record. They were inspectors in the quality control de-
partment, and hence held positions requiring a degree of
responsibility and judgment, a cut above that generally
held by production and maintenance workers.
Unlike Isley, the allegations of illegality in their cases
rest on their participation in union activity prior to their
respective terminations. Thus, Whitaker arranged, and he
was joined by Rogers and two other employees in at-
tending, a union meeting held on Thursday, 12 Decem-
ber. On Monday, 16 December, they were terminated.
b. The defense
Respondent denies knowledge of the union meeting or
of any involvement therein on the part of Whitaker
and/or Rogers. It is asserted that Whitaker was dis-
charged because he consumed alcohol on plant premises
and that Rogers was terminated because he brought alco-
hol into the plant.
Respondent's announced policy concerning alcoholic
beverages provides, in material part, as follows:
PLANT WORK RULES
The following regulations are for your general
information, to assure uniform administration and an
understanding of disciplinary action if it is ever nec-
essary. The rules and regulations governing conduct
in our plant is divided into three main groups de-
pending upon relative seriousness of the miscon-
duct.
. . . .
8 Even were I to credit Isley, the question would remain whether Re-
spondent would have taken the same action anyway See Wright Line,
251 NLRB 1083, 1089 (1980), NLRB v Transportation Management Corp.,
462 U.S 393, 401, (1983) Here, the evidence would tend to support that
this was the case Prior to 9 December, Isley had been warned repeatedly
that further outbreak with Dodson would result in his discharge His vul-
nerability at that time was an accepted fact. Even the General Counsel
asserts that before the terminal interview on 9 December, "Dodson was
preparing the way for the firing of Dwayne Isley" a possibility confirmed
by Dodson's asserted anticipation that a problem would ensue and his re-
quest that Blalock attend as a witness Isley conveyed his own belief that
Dodson had been trying to fire him since September All this antedated
any form of protected activity on Isley's part As matters turned out,
Isley's intemperate response to the abusive language citation provided
Dodson with the grounds for ending the problematical relationship by
discharging Isley In the total circumstances, I am convinced that Isley's
fate was sealed by his hostile reaction, and that his conduct in this respect
would have produced final warning and discharge even if the Labor
Board had gone unmentioned during the angry exchange. See, e.g ,
Parker Laboratories, 267 NLRB 1174 (1983)
KIDDE, INC. 83
1. Any of the following types of misconduct by
an employee on company property is considered in-
excusable and may result in immediate discharge.
Possessing intoxicants or drugs.
Reporting to work while under the influence of
drugs or intoxicants,9
It does not appear that either Whitaker or Rogers had
any past history with drugs or alcohol. The charges
against them grew out of a celebration held in the qual-
ity control offices on Thanksgiving Eve, 27 November.
Over the years, employees in quality control on that day
have provided food and nonalcoholic beverages for
themselves and whoever might happen to pass through
their work area. It does not appear that the 1985 celebra-
tion produced any form of disruption and it seemed to
have passed without incident.
Several weeks later, on Friday, 6 December, second
shift General Supervisor Michael Hester discovered a
liquor bottle containing a small amount of vodka in the
label room, adjacent to and a part of the quality control
office. The fmding was reported to Quality Control
Manager Doug Stewart, then to Personnel Manager
Eddie Hughes and Quality Control Supervisor Mike
Hawk. After conferring about the matter, the latter de-
cided to leave the bottle as found in order that it might
be observed in hope of discovering the party responsible.
This plan was later abandoned and, on 12 December, the
same day as the scheduled union meeting, Hawk con-
ducted a meeting among the 10 quality control employ-
ees at approximately 3:20 p.m. 19 The bottle was shown
and the employees were told that anyone who brought
alcohol in or consumed alcohol on plant premises would
automatically be terminated. Hawk added that although
he did not expect anyone to admit responsibility or to
identify the offender, anyone who had an alcohol prob-
lem was invited to seek help.
Shortly thereafter, Whitaker was accused by a co-
worker of appearing to taste or take a sip of alcohol
during the 27 November celebration. He was not other-
wise linked with alcohol. Rogers was identified by an-
other employee as appearing to have carried a bottle
under his coat into the quality control department that
very same day. Whitaker and Rogers denied the allega-
tiOns against them, but were terminated on Monday, 16
December, without further investigation or corrobora-
tion of the accusations against them.
c. The individual cases
(1) John Whitaker
Prior to his discharge, Whitaker had been employed
for almost 5 years. The union activity in the early winter
of 1985, which preceded his discharge, involved a rever-
sal of sentiment. In July, he signed the antiunion petition,
and when contacted personally by the Teamsters during
that campaign his antiunion stance led him to alert Qual-
ity Control Foreman Mike Hawk to that fact.
Later, however, Whitaker developed a disenchantment
with management. In October, his supervisor, Mike
Hawk, confiscated a schoolbook because coworkers con-
sidered it offensive to their spiritual beliefs. Whitaker
outraged, felt his rights were violated by removal of the
book. He protested to Plant Manager Mike Sendecki and
Personnel Manager Hughes. The latter described the
book as provocative, going on to inform Whitaker that
the book should not be brought into the plant because it
was likely to start a religious war. Whitaker responded
by advising Sendecki and Hughes that "the next time the
union tries to get in I will not stop it."11
Whitaker avers that shortly thereafter he began wear-
ing a button, which he had obtained during prior em-
ployment with a textile firm. The button in question sig-
nified allegiance to the "Amalgamated Textile Workers
Union." He claims that he wore this for 2 or 3 weeks
amid various other buttons that customarily adorned his
work clothing. Whitaker claims to also have worn a rock
button publicizing a song "Union of the Snake," which
had the word "Union" printed in noticeable letters in the
center.
Whitaker claims that around the end of November he
was approached by Foreman Dodson who pointed to the
union button, stating "take the damn thing off." Whi-
taker responded, "kiss my ass" and walked off. Dodson
could not recall having observed Whitaker wear the
button, and denied having directed Whitaker to remove
it. Although I did not believe all Dodson's testimony, in
this instance I am willing to give him the benefit of the
doubt. Not a single coworker testified to having ob-
served Whitaker's wearing any form of union insignia.
Furthermore, it strikes as a bit odd that an employee
would wear union insignia irrelevant to any union inter-
est in the plant, and while doing so, obscure its visibility
through its proximity to other pins and buttons. Whi-
taker's uncorroborated testimony in this respect did not
ring true. The 8(a)(1) allegation in this respect is dis-
missed.
Marvin Rogers, while failing to testify that he ob-
served Whitaker wearing any form of union button, did
testify that two supervisors indicated to him that they at
least suspected that Whitaker was prounion. Thus, ac-
cording to Rogers, in October, about 2 months prior to
the union meeting, Dodson told Rogers that he had
better watch out for Whitaker, "he is trying to start a
union, he is just a troublemaker." Rogers testified that on
another occasion in November coworker Kinnis Jeffries
bated Supervisor Mike Zimmerman, saying "Union,
Union, Union" to which Zimmerman responded, "Yeah,
you all keep on, you all are going to be like John [Whi-
taker] he is starting nothing but trouble around here."
Former employee Kinnis Jeffries joined Rogers by as-
serting that he discussed the Union with Foreman Zim-
merman often and on one occasion prior to the union
meeting Zimmerman stated, "John [Whitaker] was get-
ting himself into trouble . . . [T]alking about the damn
Union wouldn't do nothing for him" Jeffries, however,
9 See R. Exh 9. 11 Sendecki was not called as a witness Hughes did not contradict
,0 Whitaker did not attend Whitaker in this respect.
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could not recall the precise conversation described by
Rogers Zimmerman could not recall discussing Whi-
taker with Jeffries." He was not examined with respect
to the statement imputed to him by Rogers In the cir-
cumstances, the testimony of Rogers and Jeffries was be-
lieved, and based thereon, it is a fair inference that the
suspicion manifested by Zimmerman was reflective of a
general impression held by Respondent's managers at the
Mebane Plant. Dodson could not recall having made the
remark attributed to him by Rogers, explaining that had
he done so he believes that it would have been within
recollection. In this respect, I credit Rogers whose testi-
mony is deemed truthful in the light of the probabilities
suggested by the record as a whole, as well as the fact
that Dodson's testimony did not rise to the level of con-
vincing denial.
Suspicion of Whitaker's union activity is also suggest-
ed by a further 8(a)(1) allegation based on Dodson's al-
leged interrogation of Whitaker. Thus, on the day before
the union meeting, 11 December, Whitaker was off work
for personal reasons. The next day, which happened to
be- the day of the union meeting, Dodson approached
Whitaker stating, "I heard that you were at a Union
meeting yesterday." Dodson testified that he could not
"recall" such a conversation with Whitaker. In this in-
stance, I believed Whitaker. From my observation of the
witnesses it was my instinctive reaction that this time
Whitaker was telling the truth. Based on his credited tes-
timony, it is concluded that Whitaker was coercively in-
terrogated under conditions violative of Section 8(a)(1)
of the Act. In so finding, I note that the union meeting
was not an exceedingly publicized event. Moreover, it is
difficult to view the questioning as privileged since ad-
dressed to an "open and active union supporter" in the
face of the Company's denial that it knew that Whitaker
was engaged in union activity at times prior to his dis-
charge. Accordingly, in the total circumstances, it is con-
cluded that Dodson's rhetorical question about an un-
broached subject matter, tended to impede employees in
the exercise of their Section 7 rights under conditions
violative of Section 8(a)(1) of the Act. Cf. Rossmore
12 The complaint alleges that Respondent violated Sec 8(a)(1) by a
statement imputed to Zimmerman in February 1986 in which the latter
allegedly threatened Kinms Jeffries with discipline because of his union
activity According to Jeffries, he was told that he "had to quit talking
about the company and the union to him [Zimmerman] in front of anyone
else while he was around or he would have to write me up" Jeffries
acknowledged that during the past several months he had made it known
that he was for the Union, and had frequently discussed his position in
this respect with Zimmerman On 'cross-examination, Jeffries admitted
that the conversation included criticism of his work performance in areas
other than union activity, including his carping about the manner in
which Zimmerman performed his job Jeffries testified in effect that Zim-
merman's remark did not impede his right to talk to employees concern-
ing the Union on his breaks and during lunchtime, or on his own time
According to Zimmerman, during the timeframe in question he Spoke to
Jeffries concerning his constant griping because employees on the line
had informed him that they were tired of Jeffries constant talking against
the Company Zimmerman alleges that he advised Jeffries that it was his
prerogative to feel as he wished, but that while on companytime on the
production line he should not be propagating this attitude On the forego-
ing, it is concluded that Zimmerman's admonition was a limited attempt
to enforce the Employer's legitimate rule against excessive, potentially
disruptive conversation in the workplace on worktime It is concluded in
this respect that Respondent did not violate Sec 8(a)(1)
House, 269 NLRB 1176 (1984); Sunnyvale Medical Clinic,
277 NLRB 1217 (1985).
On the issue of motive, it is clear that Respondent
wasted little time in eliminating Whitaker on the uncon-
firmed "say so" of coworker Mike Patton. Like Whi-
taker, Patton was assigned to the quality control depart-
ment. He was the only witness against Whitaker. Patton
was an avowed alcoholic. Several months earlier he was
given a 30-day leave of absence by Respondent to serve
time on a work-relief program because he was "caught"
driving while under the influence of alcohol. After
Hawk's meeting on 12 December, Patton, for obvious
reasons, was concerned about his being blamed as the
guilty party. On Saturday, 14 December, Patton, in a
semi-excited satported to Hawk that he was being
blamed for bringing iheliquor in, but that it was untrue.
He implicated Whitaker. Hawk suggested that the issue
be carried to higher levels the following Monday.
On Monday, 16 December, in Hawk's presence, Patton
first discussed Whitaker's alleged actions with Quality
Control Manager Stewart, then with Hughes. All three
management representatives were aware of Patton's
drinking problem. The substance of Patton's accusation
agamst Whitaker was repeated in the following collo-
quoy with Respondent's counsel:
MR. ROBERTS: Would you tell the Court what
you observed that day with regard to alcohol?
PATroN: I was told to go in the Label Room and
do some straightening up. . • by Mike Hawk and I
was straightening up, putting up labels and three-
quarters of the way . . . through, I found a Dixie
cup on the shell' and I smelled it and by that time
Whitaker had walked in.
Q. That is John Whitaker?
A. John Whitaker and I said "it smelled like alco-
hol" and so I handed to him and he took the cup
and turned it up like he was drinking it and he
handed it back to me and he said "Yes, it is," and so
that was all. [Emphasis added.]
Q. You did not say anything about that incident
to anybody that day, did you?
A. No sir.
Q. Now did you observe anything else that day
in regard to alcohol?
A. No, sir, just that.
On cross-examination, Patton offered an important
clarification, as follows:
MS. WALL: You don't for a fact know personally
that it was cicohol [sic], do you?
A. No, ma'am, it smelled like it. It could have
been rubbing alcohol as far as I know. It smelled
like alcohol.
Q. And you said "it looked' like"?
A. It was dark.
Q. You said Mr. Whitaker turned the cup up like
he was drinking?
A. Yes.
Q. And so at most he took a sip?
KIDDE, INC. 85
A. I think that I testified that. . . it seemed like
. . . he took just a sip or swallow of it, I don't
know. I don't know how much he consumed be-
cause when I took it back, it didn't look like that
was. . . much gone out of it, if any.
Q. You don't know if in fact he actually did
drink any?
A. The only thing I seen him do was put it up to
his lips and turn it up.
Q. And the only reason that you know it was al-
cohol was because he said it was and it smelled
like—
A. It smelled like alcohol.
Q. —alcohol? You thought that it smelled like it?
A. Yes.
Q. And that's what you told the company?
A. Yes, ma'am.
As Patton made clear on redirect examination by Re-
spondent's attorney:
MR. ROBERTS: From what you told the company,
being the same as what you told us, there was two
things that you weren't sure of?
A. Yes, sir.
Q. In that incident with the dixie cup. One of
them was whether it was alcohol and Number Two;
you weren't sure whether Mr. Whitaker drank it?
A. Yes, sir.
Q. Did you convey that to the company?
A. Yes, sir.
These uncertainties were hardly evident in the statement
drafted for Patton's signature by Personnel Manager
Hughes, which succinctly, in unequivocal terms, stated
as follows:
I, Mike Patton, personally witnessed John Whi-
taker, drink alcohol, on the job on Novemer 27,
1985. This occurred in the label room, sometime be-
tween 10:00 a.m. and 11:30 a.m."
Curiousity is aroused by Respondent's knowledge that
Whitaker returned the cup to Patton, and that Patton
disposed of it. Hughes confirmed Patton's testimony that
he reported that the amount of alcohol consumed by
Whitaker was very slight because there was little in the
cup initially, and "there appeared to be very little gone
after he [Whitaker] had given the cup back." Although
Hughes was aware of Patton's drinking problem and that
the cup had been returned toltim, Hughes admitted that
Patton was not questioned about what had happened to
the balance of the drink. The failure to pursue the matter
is even more suspect when considered against other evi-
dence implicating Patton, which was subsequently made
available to Respondent.
In any event, later that day, on the strength of the
above information as supplied by Patton, Whitaker was
discharged. Except for a meeting with Whitaker, the in-
vestigation was not carried further. Of interest is the tes-
timony by Quality Control Manager Stewart that no de-
13 See R Exh 8
cision had been made prior to the meeting with Whi-
taker. That meeting hardly turned up evidence that
would support Patton. Stewart's version of the meeting
as related to Respondent's attorney was as follows:
MR. ROBERTS: Tell us what was said during that
meeting.
STEWART: Eddie [Hughes] asked John did he
know anything about any alcohol . . . did he have
any alcohol on his person, did he bring it in or did
he consume any. . . He said that he did not.
Q. Was anything else said?
A. Eddie also asked him did he have anything to
say about comments that he had heard that he had
white lightening out in his car available for any-
body who wanted to drink it and he said that he
said that jokingly to people.
Q. He said that he had told people jokingly?
A. Yes, that he didn't mean it, he said it joking-
iy.14
Q. What happened next?
A. Eddie then told John that he had a signed
statement from an individual that said that he did
drink the alcohol, and . . . he asked "did he again"
and . . . [Whitaker] . . . denied that he did, he said
"I did not drink any alcohol."
It does not appear that, during this meeting, Patton
was identified to Whitaker as the accuser, or that Whi-
taker was alerted to the specific scenario described by
Patton. Yet, Whitaker alleges that he implicated Patton,
during his discharge interview, reporting the following:
[T]he day before Thanksgiving, we had a party
up on the hill; everybody was eating and all and I
come in and I made me a couple of biscuits; well,
everybody left at just about the same time and so I
put some snuff in and I went and got me a couple
of biscuits and wrapped them up; and Mike Patton
come from behind the filing cabinets with a cup in
his hand and he walked up and asked me "did I
want a drink?"
And I said, you know, no thanks, I just put some
dip in and I said "what kind is it?"
And he said, "Sminioff" or something.
Now I looked and it looked like coke or some-
thing and I didn't taste it and I didn't smell it; and I
told him that "I had some moonshine in the car if
he wanted some" and then I turned around and left
and went back downstairs.
Hawk and Hughes denied that Whitaker mentioned
Patton at the time. In the course of the meeting, Hughes
and Stewart excused themselves to discuss the matter
privately. They returned to inform Whitaker of their de-
cision to terminate him.
i4 was known for a somewhat sardonic sense of humor and,
perhaps, was a bit cruel with Patton in that respect There is no dispute
that he told Patton that he kept "white lightening" in his car or that this
was anything other than a joke Respondent does not argue that any such
remark was true, that it violated any company policy, or that it was part
of the reason stated by the Company for Whitaker's termination.
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On analysis, the credited evidence establishes that
prior to his discharge Whitaker was either a known or
suspected protagonist of the Union and that Respondent,
through Dodson, also suspected that a union meeting
was in the offing. He was a good worker, with a disci-
pline-free employment history for almost 5 years. His su-
pervisor was strongly antiunion." The discharge oc-
curred only 4 days after the union meeting he promoted
among coworkers. In consequence, the inference that
union activity was at least a motivating factor suffices to
shift the onus on Respondent to show that this was not
the case. See Wright Line, 251 NLRB 1083, 1089 (1980);
NLRB v. Transportation Management Corp., 462 U.S. 393,
401 (1983). Under this standard, the burden imposed on
Respondent is one of "persuasion," or as described by
the Board in Roure Bertrand Dupont, 271 NLRB 443
(1984): "an affirmative defense in which the employer
must demonstrate by a preponderance of the evidence
that the same action would have take place even in the
absence of protected conduct."
The proof submitted by Respondent, however, not
only fails to meet this burden, but leaves little room for
doubt about the shameful underpinnings of its action
against Whitaker. As indicated, Whitaker was a good
employee with better-than-average length of service,
who held a responsible position, with an unblemished
employment record. He was discharged under a rule that
did not, on its face, require automatic discharge. The lan-
guage employed merely states that a single offense
"may" result in "immediate discharge," 16 language of
discretion, frequently found in employment rules, so as
to allow consideration of extenuating circumstances, past
employment records, and other cogent factors, before
management eliminates a valued worker. So far as dis-
closed by believable evidence on this record, the origin
of the automatic discharge concept was contrived ad hoc
and marshalled as a convenient prop to support manage-
ment's need to eliminate Whitaker.
Thus, Hughes admitted that there was no precedent
covering the facts disclosed by Patton; other cases of dis-
cipline under this rule involved more aggravated cases in
which employees reported to work in a state of inebria-
tion, or where an employee was caught with drugs in his
possession. Indeed, Respondent admittedly condoned,
without discipline, the appearance at work of employees
with liquor on their breath, provided they were not in-
toxicated. 1 7
15 Whitaker attributed a statement to Hawk to the effect that "any-
body who tried to get the union started would be fired and their supervi-
sors would too" The remark, allegedly made in the summer of 1985, was
denied by Hawk. His denial was preferred over the uncorroborated testi-
mony of Whitaker Ou the other hand, Hawk admitted to holding the
view that "if people voted the union in, it would hurt employees" Ac-
cordingly, Whitaker's testimony that Hawk made a statement to that
effect was believed over Hawk's denial Moreover, Hawk's evaluation of
whether one was a good employee seemingly was equated with whether
they were antiunion At one point in his testimony, he indicated that he
would not assume that Rogers had been to a union meeting because in
Hawk's opinion "he was a good employee"
16 See R Exh. 9.
' 7 Respondent had every right to enforce its alcoholic beverage policy
strictly, provided that it does so evenhandedly and not Just against those
who wish to assert their rights under the Act The tolerance of discipline
free employment of those with alcohol on their breath and the disinterest
A telescoped application of the rule is also suggested
by Respondent's lack of objectivity in interpreting the
evidence against Whitaker. The memorialization of Pat-
ton's report by Hughes went beyond the information
provided and depicted an outright violation of plant
policy. This obvious attempt to smooth over weaknesses
in the evidence reflected a strong predeliction toward
discharge of a worker whose record otherwise was
clean. Other factors contribute to this view. Respond-
ent's haste was inexplicable. The accusation against Whi-
taker was unsworn, uncorroborated, and from a known
alcoholic, who plainly conveyed to Respondent's offi-
cials a need to shift attention away from himself. At best,
Patton's account does not describe Whitaker as drinking
for pleasure, with knowledge that it was alcohol, but
simply sipping the unknown liquid in response to Pat-
ton's request that it be identified. Indeed, Patton could
not even satisfy Respondent's officials that the cup con-
tained alcohol or that any was consumed by Whitaker.
Moreover, the need to act on Patton's account was so
strong that neither Hawk, Hughes, nor Stewart were dis-
turbed by the unlikelihood that Whitaker, an individual
of reasonable intelligence, would consume an unknown
substance in a cup found on a shelf in an industrial set-
ting, not likely to be free from toxic materials. Finally,
although Stewart indicated that no decision had been
made after the interview with Patton, it is clear that no
further information was developed to support any charge
that Whitaker had tasted, sipped, or otherwise embibed
alcohol on plant premises.
In contrast, no interest was shown by management in
the possibility that Patton, an antiunion employee, might
have been the true offender. Although Hughes expressed
a sense of emergency concerning enforcement of the rule
against alcohol consumption, he did not bother to inquire
of Patton whether he had yielded to temptation in dis-
posing of the liquid returned to him by Whitaker. Nor
did he follow up on several reports by witnesses who
would not have known of Patton's role in the discharge
of Whitaker. Thus, on the day after the discharges, 13
December, employee Earl Ashley reported to Stewart
that 3 or 4 months earlier he observed Patton drinking
liquor in the plant.' Even Carolyn Smith testified that
when questioned whether she had seen anyone other
than Rogers drinking alcohol on 27 November, she re-
sponded, "Well, I didn't know of anybody unless . .
Mike Patton did have a cup out there." 19 After the dis-
charges employees Ricky Davis and Ronnie Lambert,
the stepson of Marvin Rogers, were interviewed by man-
agement and reported that on the day before Thanksgiv-
ing Mike Patton offered them a drink from a cup he was
carrying in the plant, which he described as containing
vodka and orange juice. 2° Lonnie Watkins, when ques-
in pursuing the case against Patton is suggestive of selective rather than
rigid enforcement.
15 Respondent explained that the allegation was not pursued because it
was considered stale
15 Here, again the matter was not pursued with Patton.
20 Respondent's failure to pursue these allegations was explained as
grounded on the refusal of Davis and Lambert to sign a written state-
ment It is noted in this connection that Carolyn Smith, whose account
provided the sole basis for the termination of Marvin Rogers, also de-
clined to give a statement
KIDDE, INC. 87
tioned by Hughes about his knowledge of alcohol on the
premises, limited his response to his observation of Mike
Patton on the morning of 27 November with a cup in his
hand. Although he did not know what was in the cup,
the assertion fit an overall pattern of evidence by which
Respondent would have a strong basis for suspecting
that Patton possessed alcohol that morning. Finally, em-
ployee Jack Long testified during the week prior to in-
stant hearing, he reported to Respondent's attorney that
on 27 November he observed Rogers and Patton in the
label room mixing drinks. Despite this allegation, Patton
continued to be employed by Respondent at the time he
testified.21
As for the basic conflict between Whitaker and Patton,
nowhere does Respondent explain why it believed the
known alcoholic. The preferred status of Patton in the
eye of Respondent is explainable only in terms of his an-
tiunion orientation.
In light of the foregoing, the fact that Respondent
would terminate a good employee precipitously, in the
midst of a pay period, without first carrying its investiga-
tion beyond the controverted, unconfirmed, inconclusive
accusations of a known alcoholic, who obviously was
out to protect himself, is indicative of a crude attempt at
pretext. The discharge of Whitaker, only 4 days after the
union meeting, amounted to no more than a thinly veiled
effort to frustrate the renewed threat of unionization. Re-
spondent thereby violated Section 8(a)(3) and (1) of the
Act.
(2) The case of Marvin Rogers
After Foreman Hawk's meeting on 12 December,
Carolyn Smith approached him, advising that Rogers
brought the bottle in. The next day, 13 December, Smith
met with Quality Control Manager Doug Stewart. Hawk
was present. She reiterated that it was Marvin Rogers
who had brought the bottle in. When questioned wheth-
er she was aware of anyone else who was drinking, she
responded, "I didn't know of anybody else, unless—Mike
Patton did have a cup out there." Smith requested that
the matter be held in confidence, as she did not wish to
get involved. She was assured by Stewart that the matter
would remain confidential.
That evening she met with Hughes and reported her
accusation against Rogers, expressing once more her
desire that the matter remain confidential. Hughes re-
quested that she sign a statement, but she declined, reit-
erating her desire for confidentiality.
Smith, who admittedly was an antiunion employee, ac-
knowledged that she had been told by Rogers that he
would attend the union meeting scheduled for 12 De-
cember.
Smith testified that she merely reported that Rogers
"brought the bottle in," alleging that the bottle was
hidden under his coat. The account of Smith, about what
21 Respondent avers at p 16 of its postheanng brief that it "does not
now doubt that Patton did in fact drink alcohol on the day before
Thanksgiving" Although I am convinced that Respondent was less inter-
ested in enforcing its alcohol policy against Patton, I reject testimony by
Whitaker that during his discharge interview he reported that Patton on
27 November offered him a drink. The benefit of the doubt in this latter
regard is extended to Hawk and Hughes.
she actually observed in that connection is set forth
below:
Q. It was just something big that he had in his
coat?
A. Yes.
Q. And that is all that you could see?
A. It just looked like, it just looked like some-
thing that was the shape of a bottle.
Q. You didn't taste whatever it was that Mr.
Rogers poured, did you?
A. No, ma'am.
Q. You didn't smell it?
A. No.
Q. You never smelled alcohol on Mr. Rogers'
breath that day, did you?
A. No.
Q. You work in close proximity, close to Mr.
Rogers, don't you at your work station?
A. Yes, ma'am.
Smith also appeared to testify that she later learned that
it was a liquor bottle, by rising from her desk to observe
Rogers mixing a drink.
Following the discharge of Whitaker, on Monday, 16
December, Rogers met with Hughes, Stewart, and
Hawk. When questioned, Rogers denied knowledge
about who brought the bottle into the plant. As in Whi-
taker's case, at some point Hughes and Stewart left the
room to confer, returning to inform Rogers that a "com-
pany person" had named Rogers as the guilty party.
Rogers emphatically denied the charge, while terming
the accuser "a liar." Ultimately, Rogers was told that the
informant was believed and that he would be discharged.
In reaction, Rogers stated that his attendance at the
union meeting was the true cause, an assertion denied by
Hughes.
Unlike Whitaker, there was no direct evidence that
Respondent was aware of or suspected that Rogers
either attended the 12 December union meeting, or en-
gaged in any other conduct protected by the Act. It is
true, however, that under current and historic Board
policy direct proof of knowledge is not an indispensable
element of unlawful motivation. Fountainview Place, 281
NLRB 26 (1986). The requisite inference may derive
from the total circumstances, including "the timing of
the discharges and the pretextual character of the Re-
spondent's reasons." Dr. Frederick Davidowitz, D.D.S.,
277 NLRB 1046 (1983).
With the foregoing in mind, it is noted that Carolyn
Smith, a senior quality control inspector, was staunchly
antiunion. In the past, she had been victimized by harass-
ment allegedly because she personally campaigned
against organization. Despite her background, she admit-
tedly was informed by Rogers of his intention to attend
the union meeting. Smith, though apparently mindful
that Hawk had warned that the person who owned the
liquor bottle would suffer automatic discharge, later
turned in her good friend Rogers. At the same time,
Smith was described as a faithful employee and, as such,
one whom her boss, Mike Hawk, would expect to report
any emerging union activity. Although knowledge was
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
generally denied by Respondent's witnesses, when one
assesses the totality of their conduct here, it is a rightful
assumption that an antiunion employee who knowingly
takes steps likely to result in discharge of a coworker
and good friend would without hesitance divulge that in-
dividual's roll in the resurgence of union activity.
The circumstantial chain is strengthened by similarities
with the case of Whitaker. Rogers also was a popular,
valued employee. His foreman, Mike Hawk, described
him as an employee having a real good record, while in-
dicating that he "depended" on Rogers "a lot." At the
time of his discharge, Rogers had been employed for 7
years.
Though discharged the same day, but, later than Whi-
taker, Respondent's handling of Rogers case was just as
cursory. He also was discharged on the basis of an accu-
sation by a single employee, in the face of his denial that
he had ever brought or consumed alcohol on plant prem-
ises. His termination without benefit of outside investiga-
tion was also precipitant, and followed the opening of a
new payroll period. The failare to seek corroboration of
Smith's charges was just as incomprehensible as Re-
spondent's action in Whitaker's case. Smith had informed
Respondent from the outset that her assertions against
Rogers would be corroborated by coworker Jack Long.
In its haste to eliminate Rogers, Respondent did not even
bother to check with Long. Thus, despite Smith's ex-
pressed concern for confidentiality and her indication
that Long would confirm her story, Respondent took no
steps to seek corroboration, an avenue that possibly
would prevent Smith from alone shouldering responsibil-
ity for discharge of this highly popular employee. It was
as if Respondent's agents feared that expanded investiga-
tion would not produce confirmation, but perhaps even
contradiction of Smith.22
On the totality, it is concluded that the similarities
with, as well as the predisposition toward discharge evi-
dent from, Whitaker's case casts a pall over the dis-
charge of Rogers. Decisional precedent acknowledges
that: "Inferences as to an employer's motivating intent
may be drawn from the employer's hostility toward the
union, coincidence between the employee's activities and
the discharge, or the absence of previous warnings or
reprimands to the employee." 13allou Brick Co. v. NLRB,
798 F.2d 339 (8th Cir. 1986). See also Lemon Drop Inn v.
NLRB, 752 F.2d 323, 325 (8th Cir. 1985). Here, only two
employees who attended the union meeting of 12 De-
cember survived. The hasty action shortly thereafter
against these long-term, good employees on the basis of
unconfirmed, denied accusations was not explainable in
terms of any business exigency." Moreover, the dis-
22' Rogers was terminated even though Smith declined to sign a writ-
ten statement, a fact that furnished Respondent with an excuse for not
pursuing investigation of charges leveled against antiunion employee
Patton.
23 Respondent contends that the investigation was underway prior to
any overt union activity Even were I to believe all Respondent's testi-
mony as to the handling of the incident, it is clear that no effort was
made to discuss the matter individually with employees until the after-
noon of 12 December, the day of the union meeting, and at a time when
coworkers, as well as Foreman Dodson, were mindful that a union meet-
ing was in the offing
charges were assertedly compelled by an employment
policy that was given automatic effect, though described
in its published form as discretionary—an erroneous in-
terpretation that would support the disregard of past em-
ployment records and extenuating circumstances. These
common elements, attendant in both cases, eliminate any
fairly based notion that the discharges were occasioned
by any difference in underlying causation. Both were
grounded in pretext, and neither Rogers nor Whitaker
would have been terminated if not linked to the resur-
gence of organization. In light of the foregoing, it is con-
cluded that Respondent discharged Marvin Rogers be-
cause he, too, had attended the union meeting of 12 De-
cember and, accordingly, that Respondent in this respect
violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Teamsters Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. By coercively interrogating an employee concerning
union activity, Respondent violated Section 8(a)(1) of the
Act.
4. By discharging Marvin Rogers and John Whitaker
on 16 December 1985 in reprisal for their union activity,
Respondent violated Section 8(a)(3) and (1) of the Act.
5. Except as specifically found in paragraphs 3 and 4
above, Respondent has not engaged in any unfair labor
practices.
6. The unfair labor practices found above constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be
ordered to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having unlawfully discharged John Whitaker and
Marvin Rogers, Respondent shall be ordered to offer
them immediate reinstatement to their former positions,
or substantially equivalent positions, discharging if neces-
sary any replacements hired since their terminations, and
that they be made whole for any loss of earnings or
other benefits by reason of the discrimination against
them. Backpay under terms of this order shall be com-
puted on a quarterly basis from the ,date of discharge to
the date of a bona fide offer of reinstatement, less net in-
terim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).24
The General Counsel requests that the remedy include
a visitatorial clause, authorizing the Board to engage in
discovery under the Federal Rules of Civil Procedure, so
that it will be able to monitor compliance with the Board
order. In the main, that motion is founded on a request
24 See generally /szs Plumbing Co, 138 NLRB 716 (1962).
KIDDE, INC. 89
that such a provision be incorporated routinely as part of
the Board's standard remedial formula in all cases. That
position has been rejected by the Board. See 0. L. Willis,
Inc., 278 NLRB 203 (1986); Nathan's Furniture Store, 278
NLRB 258 (1986); and Rebel Coal Co., 279 NLRB 141
(1986). Here, however, counsel for the General Counsel
in the alternative departs from the usual stategy, by argu-
ing that the severity of the violations in this case support
"visitation." Relief, however, under a "visitation" provi-
sion has utility only after a determination of liability and
where a respondent is unwilling to supply information or
otherwise cooperate in connection with compliance
issues. Accordingly, contrary to the General Counsel,
this form of special relief would only be appropriate on a
record disclosing some probability that a particular re-
spondent is likely to react contumaciously during compli-
ance stages. Such a nexus is not implicit in the violations
found here, especially when one considers Respondent's
procedural stance toward the General Counsel and the
Board in this case, which reflected prompt and full re-
sponse when it was called on to produce information or
documentation. Accordingly, as the instant record in-
cludes no reasonable suggestion that Respondent will
prove uncooperative in supplying information necessary
to implement the Order recommended here, the request
for "visitation" shall be denied.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed25
ORDER
The Respondent, Walter Kidde, Division of Kidde
Co., Inc., Mebane, North Carolina, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
union activity.
(b) Discouraging employees from engaging in activities
in behalf of a labor organization, by discharging, or in
any other manner discriminating against them with re-
25 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
spect to their wages, hours, or other terms and condi-
tions or tenure of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Marvin H. Rogers and John C. Whitaker Jr.
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the deci-
sion.
(b) Remove from its files any reference to the unlawful
discharges and notify Marvin H. Rogers and John C.
Whitaker Jr. in writing that this has been done and that
the discharges will not be used against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post in its plant in Mebane, North Carolina, copies
of the attached notice marked "Appendix." 26 Copies of
the notice, on forms provided by the Regional Director
for Region 11, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
26 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."