Mac Tools, Inc.

National Labor Relations Board - Board Decisions

Jul 16, 1984

271 N.L.R.B. 254 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mac Tools, Inc. and John Schadle. Case 9-CA-
16351
16 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 September 1982 Administrative Law
Judge David L. Evans issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed cross-excep-
tions, a supporting brief, and an answering brief to
the General Counsel's exceptions.
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,I and
conclusions 2 and to adopt the recommended Order
as modified.3
While we agree with the judge's findings that
the Respondent has not, as alleged, violated Sec-
tion 8(a)(3) of the Act by discharging employee
John Schadle, or violated Section 8(a)(1) by the
speech its manager of industrial relations Howard
Christiansen made to employees on Schadle's
unfair labor practice charge, we do so for the rea-
sons that follow in addition to those set out in the
judge's decision. Furthermore, we also adopt the
8(a)(1) violations which the judge found, but with
certain qualifications as explained below.
Certain background evidence is important in
order to put Schadle's discharge in proper prospec-
tive. Credited evidence shows that in December
Both the General Counsel and the Respondent have excepted to
some of the judge's credibility findings. 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 examined the record
and find no basis for reversing the findings.
I In his decision, the judge stated that employee John Schadle, the Re-
spondent, and the General Counsel had reached a settlement agreement
as to Schadle's alleged unlawful discharge providing for the posting of a
notice and the payment of $13,000 to Schadle. The judge concluded that,
apparently because of certain remarks the Respondent thereafter made in
a speech to its employees concerning this matter, the Regional Director
did not approve the proposed settlement. Upon reviewing the record, it
appears that the Respondent and employee Schadle may have been plan-
ning to enter into a non-Board settlement of the dispute in which the Re-
spondent would pay Schadle $13,000 in return for Schadle's withdrawing
his unfair labor practice charge. However, we find no evidence that the
Regional Director was a party to this settlement proposal or that he ever
approved a request to withdraw the charge filed.
a The judge found, and we agree, that the Respondent violated Sec.
8(a)(l) of the Act by its supervisor's conduct in telling Schadle that there
was a "general order" to get rid of him. However, he inadvertently failed
to provide for an order requiring that the Respondent cease and desist
from engaging in such unlawful conduct. Accordingly, we shall issue our
customary order to remedy the violation found.
271 NLRB No. 38
1980, about a month before the discharge, employ-
ee Anthony Crawford observed Schadle yawning
in the employee restroom. When Crawford asked
how he was doing, Schadle replied that he was al-
right because he had just taken a nap. Schadle ad-
mitted making such statements to plant employees
but passed them off as a joke. Crawford subse-
quently informed his department foreman, Darrell
Williams, that he had heard rumors that Schadle
was sleeping in the area of the plant in which the
Respondent stored its cardboard boxes.4 Williams
told Crawford that he wanted to be informed if
Crawford saw Schadle sleeping there, and Williams
also told Assistant Department Foreman Linda
Black what Crawford had said. Thereafter, on 13
January, Schadle was assigned to sweep the carton-
storage area as part of his regular janitorial duties.
About 3 or 4 minutes after the morning break,
Crawford informed Black that another employee
had told him that Schadle was probably sleeping
back in the storage area. Black, after attempting
unsuccessfully to find her supervisor, then proceed-
ed to this remote area where she found Schadle
sleeping in a prone position and secreted behind
large stacks of cartons. Black observed Schadle
sleeping for 35-40 seconds before she left the area.
The judge found that Schadle slept for this time
plus the time elapsed between Crawford's report to
Black and Black's finding Schadle, a period of at
least 5 minutes. 5 The next day, following an inves-
tigation during which Schadle was able to present
his version of the incident, the Respondent dis-
charged Schadle based on Black's accusation.
In finding that Schadle's discharge was not un-
lawful, the judge found that Schadle was indeed
sleeping; that Manager of Industrial Relations
Christiansen, who made the decision to discharge
him, had asked others in management and was in-
formed that discharge was the penalty for an em-
ployee caught sleeping; that five other employees
had been caught sleeping and had been discharged;
and that, when Christiansen decided to discharge
Schadle, he was not aware that another employee
caught sleeping on the job had "merely" been sus-
pended. Counsel for the General Counsel argues in
her exceptions, however, that the Respondent
never would have discovered Schadle sleeping in
the storage area but for its constant surveillance
over his activities which was discriminately moti-
4 Crawford had a legitimate reason for reporting the plant "rumors" to
Williams. As a forklift operator, he frequently removed cartons from the
storage area where Schadle subsequently was found sleeping. Thus,
Crawford feared that Schadle would be injured if he continued his appar-
ent practice of sleeping there.
s The General Counsel disputes this finding but relies on testimony
which, while not specifically discussed by the judge, was implicitly dis-
credited by his affirmative finding that Schadle slept at least 5 minutes.
254
MAC TOOLS, INC.
vated. We find that the preponderance of the evi-
dence clearly refutes the General Counsel's conten-
tion.6 Here it is undisputed that union activities
ceased at the Georgetown facility more than 3
months before Schadle's discharge. Furthermore,
despite Crawford's earlier report of the rumors of
Schadle's sleeping during work hours, the Re-
spondent did not, thereafter, attempt to catch him
sleeping as it certainly would have done if the
General Counsel's theory of this case were correct.
Indeed, Black credibly denied being instructed to
look for Schadle when first told, in December, of
the rumors that he was sleeping. Further, the
record is devoid of evidence that any supervisor
took pains to discover Schadle engaging in such
misconduct until Black was given information that
confirmed the earlier rumors. Thus, based on
Crawford's report providing specific details as to
Schadle's location in the storage area, Black had
ample cause to investigate. Indeed, Black would
have been derelict in her supervisory responsibil-
ities if she had not checked out Crawford's infor-
6 The judge found that the Respondent repeatedly had informed Scha-
die and other employees that Schadle was under surveillance. Since the
evidence shows that the employees who heard these statements clearly
understood that the reason for the Respondent's surveillance was Scha-
die's union activities, we adopt the judge's findings that such conduct
was unlawful in those instances where a violation was alleged. We reject,
however, his conclusion that these remarks also establish that the Re-
spondent was seeking to discharge Schadle for his union activities. Thus,
aside from Supervisor Dale's remark to Schadle that there was a "general
order" to get rid of him, the record contains no evidence of the Respond-
ent's desire to terminate Schadle. In reaching this conclusion, we have
noted employee Collins' testimony that Supervisor Jacobs "told me that
he had told Mr. Schadle that he better watch his step because the man-
agement was looking for a reason to get him into some trouble." The
judge made no credibility resolutions concerning this testimony because
he found that Jacobs essentially had admitted making this statement to
Collins. A reading of the record discloses, however, that Jacobs only tes-
tified that he told Collins that the Respondent had been watching Scha-
die. While it is clear that in one instance the judge discredited Jacobs'
testimony denying certain other remarks attributed to him by employee
Gary Rickey, we are satisfied that the judge's credibility finding applied
only to that particular conversation. Thus, in the absence of any credibil-
ity resolution as to the conflict in testimony between Collins and Jacobs
regarding their conversation, we do not find that Jacob's alleged state-
ment is an admission that the Respondent wanted to terminate Schadle.
Although Member Dennis agrees with the dismissal of the 8(aX3) and
(I) allegations concerning John Schadle's discharge, she disagrees with
the reversal of the judge's finding that the Respondent was looking for a
reason to discharge Schadle. Notwithstanding the judge's failure to make
a specific credibility resolution concerning Supervisor Jacobs' alleged
remark to employee Collins, there is other evidence sufficient to support
the judge's conclusion (including Supervisor Dale's remark to Schadle
that there was a "general order" to get rid of him). In Member Dennis'
view, the judge was correct when he said "Respondent was looking for a
reason to discharge Schadle .... [and] Schadle handed Respondent a
reason to discharge him." The judge properly relied on Klatre Holt Co.,
161 NLRB 1606, 1612 (1966):
The mere fact that an employer may desire to terminate an employee
because he engages in unwelcome concerted activities does not, of
itself, establish the unlawfulness of a subsequent discharge. If an em-
ployee 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 discfiarges him for that reason, the cir-
cumstance that the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore unlawful.
mation. More critically, Schadle had provided the
Respondent with reason to look for him by insti-
gating rumors that he was sleeping during work
hours. Thus, it was Schadle's own so-called jesting
remarks, not any surveillance of his activities, that
first put the Respondent on notice of Schadle's
dereliction and ultimately resulted in the Respond-
ent's discovering him engaged in a dischargeable
offense.
In addition, the General Counsel contends that
the Respondent's investigation of this incident was
done solely for the purpose of building a case
against Schadle. The record shows, however, that
the Respondent merely conducted the type of ex-
tensive investigation that most employers would
have done under the circumstances. Thus, upon
learning that Schadle had been found sleeping
during working hours, Plant Manager Britain
promptly contacted the divisional employment
manager, Thomas Rayburn, concerning this matter.
Rayburn instructed Britain to obtain Schadle's ver-
sion of this incident. Pursuant to established com-
pany practice, Rayburn also directed that Schadle
be suspended pending further investigation. Ray-
burn then called his superior, Christiansen, who
was out of town that day. Since Christiansen had
been on the job for only about 3 months, Rayburn
was anxious to inform him of the situation before
proceeding any further. Christiansen told Rayburn
that he should visit the Georgetown facility in
order to review the facts of the case with plant
management. Thereafter, in conducting the investi-
gation that led to Schadle's discharge, Rayburn
took pictures of the area where Schadle was found
asleep and obtained signed statements from several
witnesses, including Black.
Contrary to the General Counsel, we find that
the procedures the Respondent followed were prin-
cipally designed to protect the employee's interest.
It is significant here that, given the severity of
Schadle's misconduct, the Respondent had legiti-
mate grounds for terminating Schadle on the spot.
Instead, Schadle was given full opportunity, as
noted, to refute Black's accusation. Moreover, even
assuming that the Respondent was to some extent
preparing for a possible unfair labor practice
charge when it conducted its investigation here, it
is clear that such evidence would not warrant the
finding of a violation.
The General Counsel also claims that Schadle
was the victim of disparate treatment in that the
Respondent would not have imposed the same dis-
cipline in the absence of his union activities. She
relies on an incident where the Respondent sus-
pended, but did not discharge, security guard Rich-
ard Newman because he fell asleep while waiting
255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to open a plant gate for the first shift. However,
the judge discounted this incident because he found
no evidence that any member of management who
was involved in Schadle's discharge was aware
that Newman had received less discipline. Alterna-
tively, as the judge found, there is a difference be-
tween an employee who dozes off on completing
his security rounds on the night shift and shortly
before his shift is to end, and one, like Schadle,
who deliberately and surreptitiously leaves his
work station to take a nap during work hours.
The record further shows that, aside from the
Newman case, the Respondent has an established
practice of discharging employees found sleeping
on worktime. Before Schadle's discharge, the Re-
spondent had terminated five employees in the pre-
vious 7 years for engaging in such misconduct.7
One of these discharges occurred, in fact, only a
week before Schadle was found sleeping. In view
of the Respondent's record in this regard and the
seriousness of Schadle's misconduct, we agree with
the judge that the evidence is insufficient to estab-
lish disparate treatment here.
In sum, for the above reasons and those noted by
the judge, we adopt his finding that the Respond-
ent has met its burden under Wright Line, 251
NLRB 1083 (1980), of proving that Schadle would
have been discharged regardless of his union activi-
ties. Accordingly, we shall dismiss this allegation
of the complaint.
We also find no violation in the speech that the
Respondent delivered to its employees concerning
the possible settlement of this dispute. The text of
this speech, as set forth in the judge's decision,
contains neither threats nor promises. The Re-
spondent merely announced to its employees the
terms of a settlement agreement it believed would
resolve Schadle's unfair labor practice charge. In
doing so, the Respondent emphasized that, al-
though Schadle had been discharged for cause, it
would pay him a large sum of money to avoid the
greater expense of continuing litigation. There is no
evidence that its description was inaccurate. Ac-
cordingly, we also adopt the judge's finding that
the speech was lawful.
' Although these discharges occurred at other plants that the Respond-
ent operates in Ohio, the record shows that the Respondent has similar
labor relations policies for all area plants, including the Georgetown fa-
cility, administered by its industrial relations department based in Wash-
ington Court House, Ohio. There is no showing in this case that, except
for the Newman incident, the Respondent did not uniformly apply its
policy of discharging employees found sleeping on worktime to all em-
ployees at area plants. Thus, in considering this issue of disparate treat-
ment, it is immaterial that previous discharges for this offense involved
plants other than the one where Schadle worked and that three of the
employees found sleeping, like Newman, were security guards.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Mac Tools, Inc., Georgetown, Ohio, it
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph l(d) and re-
letter the subsequent paragraph accordingly.
"(d) Informing employees that there is a general
order to get rid of them in order to discourage
their union activities."
2. Substitute the attached notice for that of the
administrative law judge.
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.
WE WILL NOT solicit grievances from employees
and promise adjustment of such grievances in order
to discourage employees' support for International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, or
any other union.
WE WILL NOT create an impression among em-
ployees that their union activities have been under
surveillance.
WE WILL NOT inform employees that they or
other employees are being watched by us in order
to discourage any employee's union activity.
WE WILL NOT inform our employees that there
is a general order to get rid of them in order to dis-
courage their union activities.
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.
MAC TOOLS, INC.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This
case was tried before me on February 1-5 and March 15,
1982. The charge was filed by John Schadle, an individ-
ual, on January 21, 1981. The complaint was issued
against Mac Tools, Inc. (the Respondent), alleging viola-
tions of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act), by the discharge of Schadle, by
256
MAC TOOLS, INC.
the issuance of a written warning notice to employee
Thomas Howland, and by other acts and conduct. The
complaint was further amended at the trial. Respondent
filed answers denying violations of the Act but admitting
jurisdiction. After the hearing the General Counsel and
Respondent submitted briefs which have been duly con-
sidered.
On the entire record in this proceeding, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a division of the Stanley Works, is an
Ohio corporation engaged in the manufacture of tool-
boxes at Georgetown, Ohio. During the 12 months pre-
ceding the issuance of the complaint herein, Respondent
purchased and received at its Georgetown facilities
goods and materials valued in excess of $50,000 directly
from suppliers located in points outside the State of
Ohio. Accordingly, I find that Respondent is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW
(the Union) is now and has been at all times material
herein a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent has four facilities in Ohio: A distribution
center in Columbus and plants in Washington Court
House, Sabina, and Georgetown. At the Georgetown
plant at the time of the events in question, the plant su-
perintendent was Larry Britain; assistant plant superin-
tendent was Kenneth Beal; night production general
foreman was Lamar Dale; reporting to Dale were Fore-
men Tom (Jake) Jacobs and Kenneth Wedmore; day
general foreman was Joe Kirk; reporting to Kirk were
Foremen Owen Cornwell and Darrell Williams; report-
ing to Williams was Assistant Foreman Linda Black. Re-
spondent's personnel and security department was under
the direction of Howard Christiansen, manager of indus-
trial relations whose office is in Washington Court
House. Christiansen succeeded Phil Brewer to this post
in October 1980. Reporting to Christiansen were person-
nel managers at Respondent's Sabina and Georgetown
facilities; at the Georgetown facility the personnel super-
visor was Mike Bellis. Also reporting to Christiansen
was Walker Hockett, safety and security supervisor; re-
porting to Hockett were "Security leaders" and guards
at the facilities; John Martin was the security leader at
the Georgetown facility at relevant times herein. John
Eary was the foreman of the custodians at Georgetown;
Larry Fischer was the maintenance foreman. It is undis-
puted that the foregoing named individuals were, at the
time of the events described herein, supervisors within
the meaning of Section 2(11) of the Act.
Respondent's production operation at Georgetown is
conducted on two shifts, the first from 7 a.m. to 3:30
p.m.; the second from 4 p.m. to 12:30 a.m. On September
15, 1980,' John Schadle and Tom Howland were em-
ployed as machine operators on the second shift. On that
date, pursuant to arrangements made by Schadle, Scha-
dle and Howland met with Ivory Howard, a union rep-
resentative, in the parking lot of a local restaurant.
Howard gave them union authorization cards to distrib-
ute among Respondent's employees. The next day How-
land took the cards to the plant and began soliciting sig-
natures. Schadle was on excused absence for the 3 or 4
days after the meeting with Howard, and Howland gave
all the cards to Schadle when the latter returned. Scha-
die first solicited among the second-shift employees.
Then on September 24, he passed out cards to the first-
shift employees between 3:30 and 4 p.m. at the shift
change period. Schadle testified that he conducted this
activity in a parking lot adjacent to one door of the plant
and the activity took from 10 to 15 minutes. Schadle tes-
tified that during this period Beal stood in a door next to
the employee entrance. Also, according to the testimony
of Schadle, Britain and Fischer walked through the em-
ployee entrance and "proceeded on around to look at
something on the building." Schadle testified that Britain
walked close enough to reach out and touch him and
that Britain did give Schadle a perfunctory greeting.
Schadle further testified that during this time Beal re-
mained at a distance about 20 feet from where the cards
were being distributed.2
There had been two prior organizational attempts in
Respondent's Georgetown plant during the preceding 5
years. Schadle's parking lot activity apparently was the
first knowledge to Respondent of another such attempt.
Dale, who had been discharged by Respondent by the
time of the hearing, testified on behalf of the General
Counsel. Dale testified that when Schadle's activity
began he and other supervisors were called to Britain's
office where they were instructed to keep their eyes and
ears open. Dale testified that he talked to several em-
ployees whom he believed to be opposed to the Union,
being careful not to question any of them.3 Dale credibly
testified that after he talked to several employees he re-
ported to Britain that the activity was very widespread.
After Dale's report to Britain, a meeting among Beal
and Britain and Schadle and Howland was held. Dale
and Howland testified for the General Counsel about
how the meeting, which Dale did not attend, was ar-
ranged. On the basis of their creditable testimony, 4 I
I Unless otherwise specified all dates hereafter are between September
15, 1980, and November 18, 1981.
a The complaint does not allege that this conduct of Britain, Beal, and
Fischer violated Sec. 8(aXI) of the Act.
I The complaint alleges that about September 22 Dale interrogated em-
ployees. On the basis of Dale's testimony, and the testimony of employee
Jerry David Daughtery, another witness called by the General Counsel,
who also testified that he volunteered information to Dale, I find that this
allegation is without merit and recommend its dismissal.
4 Beal and Britain testified, but not about this meeting, nor how it was
arranged.
257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find 5 that during the second shift on September 25, Beal
and Britain were in the plant area, an unusual occur-
rence. Howland had noticed Beal and Britain and
stopped Dale to ask what was going on. The two men
discussed the union activity, Howland mentioning that
the employees were not serious about securing recogni-
tion of a labor organization but were only trying to
better their working conditions. Dale told Howland that
Britain and Beal would like to talk to Schadle and How-
land about the matter and, if Howland agreed, Dale
would have Beal walk through the plant so that How-
land could stop Beal and suggest a meeting. Howland
agreed. Dale went to the office after talking to Howland
and told Beal and Britain that the authorization cards
had not been turned into the Union and that Schadle and
Howland "were requesting a meeting of sorts in order to
be able to discuss the problems." In about an hour, Beal
did walk through the production area near Howland's
machine. Howland stopped Beal and asked what he
thought of the "unrest" in the plant. Beal stated that he
and Britain wanted to talk to Schadle and Howland
about the matter either in the production area or in the
office. Howland suggested that they go to the office.
Beal agreed and stated that he would tell Howland's
foreman that Howland would be away from the produc-
tion area for a while. Howland turned off his machine
and got Schadle and the two employees went to the
office to meet with Britain and Beal.
The meeting started by Beal telling Britain that How-
land and Schadle had come forward to discuss the
"unrest" in the plant. Britain asked Schadle and How-
land what, in their personal opinions, was wrong in the
plant to be causing the unrest. Schadle and Howland
told the supervisor that although they could not speak
for the entire employee complement they felt that Re-
spondent had an inconsistent absentee policy; the em-
ployees did not like the antinepotism policy and the lack
of a retirement plan. Specifically, Howland testified that
he and Schadle complained that "they just kept saying
[the retirement plan] was in the works." Schadle testified
that he also said that things would run more smoothly at
the plant if someone other than Phil Brewer were the
personnel supervisor.
Schadle further testified that Britain replied "that he
didn't know what could be done, that he would have to
check into it." The men shook hands at the termination
of the meeting and while doing so, Beal asked Schadle if
he still had the cards. Schadle testified that he replied
that he did and Beal "asked if I could hold the cards
until they had-Mr. Britain and [he] had the meeting in
Washington Court House to see what could be worked
out." Howland's testimony differs only slightly from
Schadle on this point. According to Howland:
(T]hey told us how at Washington Court House,
they didn't understand the problems they were
having, and that they couldn't get Washington
Court House to listen to what they had to say, and
Respondent contends that the testimony of Dale and Howland is fa-
tally inconsistent on different aspects of how the meeting was arranged; I
disagree.
that if me and John would hold up on what we was
doing, that they would go back to the Courthouse
and see what they could do for us. And, Ken Beal
asked us if we'd play ball with him.
Schadle replied that he would hold the cards until the
following Thursday when there was a scheduled employ-
ee meeting and that if any employees asked to have their
cards returned he would do so, but would not turn the
cards over to a supervisor.
On cross-examination Howland was asked and testi-
fied:
Q. Were you promised anything during that
meeting?
A. Just that they'd go to Washington Court
House, and see what they could find out. They
couldn't guarantee nothing.
The complaint alleges that in this meeting Britain and
Beal "solicited grievances from employees and promised
adjustment of such grievances in order to discourage em-
ployees' support of the Union." Respondent leans heavily
on the facts that the word "union" was not mentioned
during the meeting, and that Howland agreed that there
was no express promise to remedy the grievances aired
at the meeting. On these factors, Respondent argues that
there was no element of interference, restraint, or coer-
cion in the actions of Britain and Beal. I disagree. While
there was no express reference to the Union, the meeting
was held solely because the employees had engaged in
union activity and everyone there knew it. Although the
employees were told that Britain and Beal could not
guarantee anything, they were certainly promised some-
thing; that local management would present their griev-
ances to corporate headquarters in Washington Court
House. This type of promise is one reasonably calculated
to cause employees to suspend their statutorily protected
activity while the grievances were being presented to
higher management, if not abandon them all together.
Therefore an element of interference would be pre-
sumed. But, in case Schadle had missed the point, Beal
specifically asked him not to mail the authorization cards
until the grievances could be taken to Washington Court
House and management there had an opportunity to re-
spond, and Schadle agreed. Thus, this is a case of actual
interference with Schadle's Section 7 right to transmit
the authorization cards to the Union.
Therefore the General Counsel has proved the ele-
ments of solicitation of grievances coupled with a prom-
ise of attempted remedy, in violation of Section 8(a)(l) of
the Act, and I so find and conclude.
About October 1, Beal and Britain conducted meetings
with the employees.6 At the meeting he attended, Scha-
die testified that Beal announced a 40-cent-per-hour
wage increase effective sometime in October and another
40 cents effective the following April; increased insur-
ance coverage in the death and dismemberment policy;
disability pay increase from $65 to $75; and night-shift
I Apparently this was the meeting to which Schadle referred on Sep-
tember 25.
258
MAC TOOLS, INC. 259
The second-shift employees are required to turn in
production cards at the supervisor's office at 12:25 a.m.
At this time on October 13, Howland also took the com-
pany-owned wrenches to the office. Gathered there were
Jacobs and several employees, including Schadle. Ac-
cording to Howland's own testimony:
So, I took them and laid them on his desk, and
Kenny Wedmore was in there. And, I set the box of
Alien wrenches and screwdrivers down, and I had
the boxed-end wrenches on a wire, and I laid them
on the desk. And as I was going out, Jake Jacobs
was there, and Kenny, and I told Kenny, I said
there's all the tools you need to make the setups, I
said, all you lack now is the knowledge. And he
said, I got the knowledge. I said like hell you do.
And I went out and washed up and punched out
and went home.
In describing the event, Schadle characterized How-
land's tone of voice as "disgusted."
October 10 was a Friday, on the following Monday,
October 13, Wedmore issued the warning notice in ques-
tion. As the "detail of occurrence" he described the ex-
change between Howland and himself essentially as
Howland did in the testimony quoted above. As "imme-
diate action, if any, taken by supervisor" Wedmore
wrote: "Written warning for using abusive language
toward his supervisor." In a written response to the
warning Howland complained that he should not be pe-
nalized for using the word "hell" because other employ-
ees had used stronger language and that other employees
had done as much as calling a supervisor a "damn liar"
without penalty. Howland further complained that the
only reason he could adduce for the warning notice was
that he had passed out UAW membership cards in the
preceding few weeks. Howland further stated:
The fact that I was written up [was] because I told
my foreman that he did not know what he was
doing in [the] way of setting up a punch press. [It]
was [based] on the fact that in the past when I was
off, he set them up wrong and he does not know
what dies to use for some jobs.
In other words, Howland meant what he said when he
told Wedmore, in front of the group, that he did not
know how to set up the machine. This being the case, I
am confident that Howland employed a tone of voice
that would have conveyed his seriousness when he in-
sulted Wedmore.
The General Counsel does argue that Howland's
remark was anything other than abusive. However, the
General Counsel makes several contentions in an attempt
to prove that the issuance of the warning notice was a
violation of Section 8(a)(3):
i. The General Counsel contends that an admission
made by Dale demonstrates discriminatory intent.
Howland testified "a couple of days" after he received
the warning notice that he had a conversation with Dale
when the two men were alone in the foreman's office.
According to Howland:
premium increase from 5 to 15 cents per hour; a new
posting and bidding system for job transfers in place of
the then existing one. The employees were further told
that Respondent was still working on its retirement pro-
gram. In their testimony, neither Britain nor Beal dis-
cussed this employee meeting and Schadle's testimony,
which I find creditable, stands undenied. The complaint
alleges that the announcement of benefits by Respondent
constitutes promises in violation of Section 8(a)(l); it
does not allege that the subsequent grant of the benefits
was a violation. Respondent adduced abundant evidence
that all of the announced changes were scheduled prior
to any union activity herein. The General Counsel does
not contest this evidence but argues that, since Respond-
ent usually announced changes by posting, "[t]he clear
implication of the employees' meeting so close on the
heels of Britain's and Beal's solicitation of grievances de-
scribed above is that Respondent intended to convey that
it had acted on those grievances (thereby obviating the
need for another [sic agent), and is the basis for para-
graph 5(c) in the amended complaint."?
In making this argument the General Counsel appears
to concede that had Respondent made its announcement
of (nonviolative) benefits by posting, there would have
been no violation. Thus, the General Counsel attacks
only the form of the announcement, not the content. In
making this argument the General Counsel cites no au-
thority for the proposition that the form of the an-
nouncement determines its legal validity. I decline to at-
tempt the establishment of such authority and shall rec-
ommend dismissal of this allegation of the complaint.
Howland's Warning Notice
On October 13, Night-Shift Foreman Wedmore gave
Howland a written warning notice, an action the Gener-
al Counsel contends to have been in violation of Section
8(a)(3). To put the event in perspective, it is to be noted
that Howland and Wedmore had a bad relationship.
Wedmore testified that before October 13 he was twice
notified by his superiors that Howland had claimed that
he was incompetent. (Howland put the number of such
complaints at three.) Howland acknowledged that he had
a poor opinion of Wedmore as a supervisor and admitted
sending Respondent a "Thank You" card when, in Feb-
ruary 1981, Wedmore was permanently transferred to the
day shift.
Before the week of October 13, Howland placed a
lock on a toolbox which was owned by Respondent. In
the toolbox had been tools owned by both Respondent
and Howland personally. According to Howland the
reason he placed the lock on the toolbox was, "several
times Kenny [Wedmore] got in my toolbox and he left
tools out, took out tools I never found again, that I had
to replace myself." Further according to Howland he
was told by one Tom Reese, whom Howland described
as "in charge on manufacturing at that time," that Re-
spondent would provide Howland with a toolbox for the
tools he owned and the company-owned tools should be
returned to Lamar Dale.
'G.C. Br., p. 2.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After we'd passed out the cards, there was things
happening, and I asked Mr. Dale if-in the office, if
they was mad at us after we passed out the cards.
This was after I received the written warning and
Mr. Dale told me that the Company really wasn't
mad because I'd argued with the foreman or Mr.
Brewer,8 who was personnel manager at the time,
but they was very upset because that we passed-
sent the cards into the Union and that they thought
that they was doing things to improve things at the
Company.
Dale, who had been discharged by Respondent, testified
for the General Counsel and appeared more than eager
to do so. However, when asked on direct examination if
he had any conversation with Howland about his union
activity, other than the conversation resulting in the
meeting among Howland, Schadle, Beal, and Britain, he
testified only to one. This one, according to Dale, oc-
curred on the production floor some 2 weeks after John
Schadle transferred to first shift. Schadle, it was stipulat-
ed, transferred to the first shift on October 20. Also the
content was different; no mention was made of an argu-
ment with a foreman (or Brewer). Because of the total
failure of corroboration by Dale of Howland's testimony
on the point, there is too much doubt in my mind about
the matter to credit Howland's testimony. Moreover,
even crediting Howland's account, there is no evidence
of an admission by Dale that the warning notice was dis-
criminatory. According to Howland's testimony, Dale
was apparently referring to some argument with "the
foreman or Mr. Brewer" when he told Howland what
Respondent was not "mad" about. The circumstance
which was the topic of the warning notice did not in-
volve an argument with anyone; Howland made his
insult to Wedmore, then turned heel, and left.
2. The General Counsel contends that Jacobs admitted
the incident did not warrant discipline.
Howland testified that, at some point after October 13,
Jacobs (Wedmore's night-shift coforeman) told him that
Wedmore was going to do nothing about the incident
until instructed to do so by Joe Kirk, day-shift general
foreman. Jacobs testified for Respondent, but did not
deny making the remark to Howland. However, Kirk
and Wedmore credibly denied that Kirk had anything to
do with the issuance of the warning notice and the
remark by Jacobs appears to be nothing but speculation.
In addition, the General Counsel's witness Dale testified
that he discussed the matter with Kirk on October 13
and that Kirk "[t]hought it was terrible, and that Tom
[Howland] should not get away with it without some
kind retribution-not retribution, punish or whatever."
Therefore, even if Kirk prevailed upon Wedmore to
issue the warning notice, the cause was the obstreperous
conduct of Howland, not his union or protected concert-
ed activity.
3. The General Counsel contends that other employees
had "snapped at or used harsh words towards their su-
pervisor" without being similarly disciplined.
s The reference to Brewer is unexplained in this record.
The General Counsel adduced testimony that employ-
ees had told their supervisor that they were "full of shit"
and such. I credit all of this testimony which need not be
repeated verbatim. But Howland was not disciplined for
use of the word "hell" as the General Counsel argues.
He was disciplined for verbally abusing his foreman. The
employment of the term "abusive language" by Wed-
more clearly conveys this import. Certainly, the warning
notice did not state as a basis "cursing," which the Gen-
eral Counsel argues to be the gravamen of the warning.
Conclusion on Howland's Warning Notice
In a tone of "disgust," as Schadle characterized How-
land's utterances, Wedmore was told that he was incom-
petent; he was further told this in front of five or six em-
ployees and Wedmore's coforeman Jacobs. When Wed-
more protested that he did have the knowledge to use
the wrenches, Howland, as he turned heel and walked
out the door repeated the insult, saying "like hell you
do."
A supervisor can be told he does not know what he is
doing, or even that he is "full of shit" without humiliat-
ing him.9 It depends on the circumstances. The General
Counsel's witness Dale testified that he entered the office
immediately after Howland had left and he found Wed-
more there in an extremely upset condition. Therefore, it
appears that the circumstances"° of Howland's remark as
well as the remark itself caused the upset in Wedmore.
The General Counsel advances the conclusion that the
remark by Howland was "innocuous"; however, it is not
for the Board to substitute its sense of insult for that of
Respondent's foremen. It is clear to me, especially after
hearing the testimony of Wedmore, as well as that of
Dale on this point, that the upset created by Howland's
insult was the sole cause of the October 13 warning
notice and it was not in any part motivated by a desire
to inflict punishment for Howland's protected union ac-
tivity.
Therefore, I shall recommend dismissal of the allega-
tion that the October 13 warning notice was issued to
Howland in violation of Section 8(a)(3) of the Act. '
Treatment of Schadle
As previously mentioned, on October 20, Schadle
transferred to the first shift. The voluntary transfer in-
volved a demotion from press setup to janitor under the
supervision of Foreman John Eary.t 2 The complaint al-
leges that after this transfer Respondent imposed on
Schadle more onerous working conditions by prohibiting
from him talking to other employees. In support of this
9 Also, as Howland had done two or three times before without penal-
ty, failings in a supervisor can be reported to higher management.
10 These circumstances include the longstanding contempt Howland
held for Wedmore which was assuredly known to those employees who
witnessed the insult.
II I do not agree that the General Counsel had proved a case of dis-
criminatory treatment because employee Mary Eary was given only a
"verbal" written warning notice for certain remarks directed at Wed-
more. Although loud and profane, the remarks by Eary, as related by the
General Counsel's witnesses, were not calculated to humiliate Wedmore,
the clear intent of Howland.
12 Eary did not testify.
260
MAC TOOLS, INC.
allegation, the General Counsel relies on the following
testimony13 of Schadle on direct examination:
Q. Now after you got on first shift and were
working under Mr. Eary, did he issue any instruc-
tions or give any restrictions to you around the
plant?
A. Yes. After I have been there just a few days,
he advised me that I was not to carry on any type
of conversation with other employees; that I had a
job to do and they had a job to do. And when I
asked him if he meant like to interrupt their work
or hold them up from doing their duties, he said he
didn't think it would be to my best interest to have
very much of a conversation with any of them.
Q. Now did he tell you this more than once?
A. He didn't tell me that way more than once.
He gave me-he called them "unofficial warnings"
about my conversations with different people or
about talking to people on several occasions.
When asked how long he had been talking to other em-
ployees, Schadle responded:
At times, it would be a period of a minute. I can't
recall interrupting anyone from their job for over a
minute. There were times when maybe a person had
a machine breakdown or were standing waiting on
a set-up and I would also be working in that area,
maybe sweeping, and we would converse for maybe
two or three minutes. It was nothing out of the or-
dinary and it was nothing to hold up production. At
other times, maybe it was just a general, "good
morning. How are you doing this morning?" and
Mr. Eary would come out and tell me that someone
called him and said that I was holding up the work
force.
Respondent introduced nine written warnings (some of
them denominated "verbal") given to other employees.
As stated by one warning:
Talked to [employee named] about excessive talk-
ing. I told her that a few sentences were no prob-
lem but lengthy conversations were out of the ques-
tion. I informed her that it was a verbal warning.
Except for the fact that Schadle was given no document-
ed warning, there is no difference in the direction given
this other employee and that given Schadle. Moreover,
by his own admission, Schadle sometimes interrupted
employees at their work, although he attempted to limit
the interruption to a duration of no more than a minute.
The other occasions alluded to by Schadle involving
being spoken to by Eary because he had given a perfunc-
tory greeting also contained no element of warning or
evidence that Schadle was subjected to discriminatory
is The General Counsel also advanced some evidence that, for a time,
Schadle was told not to clean in a painting area. The General Counsel
does not mention this testimony in her brief presumably because she
would agree with me that there is insufficient credible evidence that such
instruction was an imposition of more onerous working conditions on
Schadle.
treatment. Also, the testimony of Schadle about other in-
stances of Eary's directions are too imprecise to make a
factual finding.
Since the General Counsel has failed to prove that
Schadle was subjected to discriminatory treatment, or
that his work was made more onerous than that of other
employees, or that he was subjected to rules to which
other employees were not subjected, I find and conclude
that the General Counsel has failed to prove this allega-
tion of the complaint and I shall recommend that it be
dismissed.
Animus Against Schadle
Schadle testified that approximately 2 weeks after he
passed out union authorization cards (a point which
would have been before he transferred to the second
shift) he was working in the shear area when he was ap-
proached by Foreman Jacobs who had been his friend
for over 20 years. According to Schadle, after the men
discussed personal matters Jacobs parted saying:
[H]e said he wanted to give me a little warning-
just to take it like from one friend to another-that
I was being watched and I should be very careful in
what I said or did and who I said or did it to or in
front of.
Jacobs acknowledged that he had given a warning to
Schadle. Although he placed it in a different area in the
plant, and after Schadle transferred to the second shift, it
is clear to me that the two witnesses were talking about
the same conversation. Jacobs testified that he told Scha-
dle: "We had been friends for some time, and I said, you
know, 'I think you should be careful. You're being
watched."' Jacobs testified that he gave this warning to
Schadle after he inadvertently heard Kirk tell Cornwell
"he should keep an eye on Johnny because, you know,
he had seen Johnny stopping and talking to different
people . . . stopping at their work areas and talking to
other employees, and to keep an eye on him." Kirk
denied giving any such instruction to any of his subordi-
nates, such as Cornwell, and Cornwell testified that he
did not remember such instruction from Kirk. Neither
Schadle nor Jacobs testified that any reference was made
to Schadle's union activity, and Jacobs denied that there
was any reference to Schadle's union activity when he
overheard Kirk giving instructions to Cornwell. Howev-
er, this does not end the inquiry. Schadle had not been
indulging in conversations to the extent that he had been
issued a warning notice, as had other employees. There-
fore, both Schadle and Jacobs knew that Jacobs was not
talking about potential interference with production. The
only salient aspect of Schadle's employment at the time
was his spearheading of the union activity, and this was
assuredly the cause for the warning that he was being
watched. t 4 Nor can Respondent take refuge in the fact
" Jacobs' testimony that his warning stemmed from instructions he in-
advertently heard Kirk give Cornwell was false; aside from the fact that
I got the distinct impression that Jacobs was concocting the overheard
conversation as he went along, Kirk denied giving and Cornwell denied
remembering such instruction.
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Schadle and Jacobs were longstanding friends. First
of all, friendship in the abstract has never been approved
by the Board or the courts as an absolute defense to
8(a)(l) allegations; supervisors can, and do, from good
intentions or bad, trample upon the Section 7 rights of
employee friends. But more importantly the warning by
Jacobs was a statement of fact specifically calculated to
interfere with Schadle's union activity, not a generalized
expression of opinion of possible companywide response
to union activity which was before the Board in the case
cited by Respondent, Mobil Oil Corp., 219 NLRB 511
(1975).
I find and conclude that, as alleged, Jacobs' warning
to Schadle that he was being watched violated Section
8(a)(1) of the Act. I further conclude that Jacobs' re-
marks were an admission that Respondent was seeking to
rid itself of Schadle because of his activities on behalf of
the Union.
The General Counsel also introduced evidence that
Schadle was being watched after his transfer to the first
shift. Lamar Dale testified that within a week after Scha-
die was transferred he had a conversation with Beal. Ac-
cording to Dale:
In just a normal conversation with Mr. Beal at
change of shifts or in the second shift, we were
talking about what seemed to be the ridiculousness
of Mr. Schadle down bidding and taking a dollar an
hour cut in pay, and during the conversation Mr.
Beal said that was all right. You know, he could not
understand it either, but that was all right. That
John was on first shift now, and that he could
pretty much be more closely scrutinized [and] his
activities on the floor could be watched more care-
fully, and that if he blundered there would be
people around to see it . . . [and that] management
and supervision were going to make sure that John
would not further his union activities on [first] shift.
They were going to, pretty much, keep him busy
and away from as many employees as possible being
as he took up a general maintenance job which
meant sweeping and being sent wherever he was to
be sent.
On direct examination Dale further testified that he, in
turn, told Schadle:
* . . for his sake he had better walk softly, be care-
ful, because he was in touchy territory. That he was
on first shift and that he wanted to keep his job and
support his family he'd better be careful of what he
was doing. That he was definitely being watched,
so that he made any mistakes he would suffer them.
On cross-examination Dale added that he told Schadle
that he was being watched because of his union activi-
ties. In Dale's pretrial affidavit, Dale covers his warning
to Schadle, but includes no mention of his categorically
telling Schadle that he was being watched because of his
union activities. Dale was unable to satisfactorily explain
the omission. Schadle did not testify that Dale gave him
the dramatic "family sake . . . walk softly . . . touchy
territory" warning described by Dale. Schadle only testi-
fied that Dale stated that there was a "general order" to
get rid of him, and, on cross-examination, specifically
denied that Dale told him that it was because of his
union activity. I find that Dale, who had been dis-
charged by Respondent and was eager to testify for the
General Counsel, embellished both Beal's statement to
him"' and his statement to Schadle, and I discredit
Dale's testimony accordingly. However, I found Schadle
credible in his testimony that Dale warned him that there
was a "general order" to get rid of him, and I conclude
that the warning was a violation of Section 8(a)(1), as
well as evidence that Respondent desired to be rid of
Schadle because of his union activity.
Employee Marvel Waulk testified that about 2 weeks
after Schadle's transfer to the first shift on October 20 he
had a conversation at the plant with Schadle's supervisor
John Eary. During the conversation, according to
Waulk, Eary stated "that John was being watched and
he had-he's had to get on him. He had to get on him at
times. He really didn't want to, but he was told to. But
he didn't say by who." Waulk acknowledged on cross-
examination that express reference to the Union was not
made by Eary. Eary did not testify, and I found Waulk
to be credible. The complaint alleges that Eary's state-
ment to Waulk is a violation of Section 8(a)(1). I agree.
Although no express reference to the Union was made,
there is no other salient aspect of Schadle's employment
which could have been the subject of Eary's remark.
That Eary's remark bears a coercive element cannot be
denied. Eary was, in effect, telling Waulk that although
Schadle was a competent employee he had instructions
to reprimand, or otherwise discipline, Schadle for invalid
reasons. In this circumstance I find that such remarks
would tend to restrain and coerce employees in the exer-
cise of their Section 7 rights, and thus a violation of Sec-
tion 8(a)(1) is made out. I further find that Eary's remark
is an admission by Respondent's supervisor, and there-
fore agent, that Schadle "was being watched." Again
there is no reasonable doubt that Eary was referring to
Schadle's union activity. As noted, there was nothing
else unusual in Schadle's employment tenure which
would have caused such a remark; if, as Respondent
might argue, Eary's remark could possibly indicate that
Schadle was being watched because he was not perform-
ing his duties or gossiping with other employees, it is to
be noted that there is no evidence that Schadle failed to
perform his janitorial chores adequately after transferring
to first shift, and, if he had been guilty of excessive talk-
ing, he assuredly would have received a warning notice
such as those issued to other employees as mentioned
above.
Employee Collins testified that about 4 weeks after
Schadle's discharge Supervisor Jacobs "told me that he
had told Mr. Schadle that he better watch his step be-
cause the management was looking for a reason to get
him into some trouble." Jacobs essentially admitted this
statement to Collins. Although this statement is not al-
leged to be a violation of Section 8(a)(l), it substantiates
'1 I do not rely on Beal's denial which was in response to a question
that was overly narrow, as well as blatantly leading.
262
MAC TOOLS, INC.
the conclusion that Respondent was seeking a reason to
discharge Schadle, and I find, again, it was because of
Schadle's union activity.
Employee Gary Robert Rickey testified that a few
weeks before the trial of this matter Jacobs told him he
had warned Schadle that "Mac Tool management was
watching him and that he was a friend of Johnny's and
that he would have-he had told him to watch. [sic] Be-
cause they were watching him." On cross-examination
Rickey was asked if Jacobs had said why Schadle was
being watched. Rickey replied: "[T]hey figured he was
after a union." Jacobs was asked on direct examination if
he had made such a statement to Rickey. Jacobs first
stated that he could not remember. After obviously
being alerted by a colloquy with me initiated by Re-
spondent's counsel, Jacobs then flatly denied having
made such a statement. I found Rickey to be a complete-
ly credible witness and I believe, as he testified, that he
did, in fact, remember Jacobs' specific reference to the
Union on cross-examination although he did not remem-
ber it while on direct. Conversely, I found Jacobs to be a
dissembling witness; he was a personal friend of Schadle;
he was trying to toe the fine line between his friendship
with Schadle and some concept of responsibility owed to
Respondent as one of its supervisors. Although not al-
leged as an independent violation the remark by Jacobs
to Rickey is a clear admission that Respondent was seek-
ing to discharge Schadle for his union activity.
Howland testified that sometime before Christmas,
when employee Marvel Waulk was present, he met
Jacobs at a tavern. According to Howland the three men
were discussing union cards and Jacobs said "that they
was just watching Johnny and myself." Jacobs admitted
this statement, which was made the subject of a motion
to amend the complaint at the trial. The General Counsel
alleges that the statement by Jacobs constitutes the cre-
ation of the impression of surveillance of union activities.
I agree and find and conclude that by such conduct Re-
spondent violated Section 8(a)(1) of the Act. I further
find the remark to be another admission that Respondent
was seeking a basis for discharge of Schadle for his
union activity.
Discharge of Schadle
On January 14 Schadle was discharged by Respond-
ent. The General Counsel contends that this action was
caused by Schadle's union activity; Respondent contends
that it was solely because he was found sleeping when he
should have been working.
After Schadle transferred to the first shift, one of his
duties was to sweep out storage areas. One of those areas
was a large open space where cardboard cartons were
stored. The cartons were of various sizes; they were flat-
tened and bound in bundles which were stacked in
heights varying from I to 12 feet. These bundles were
moved in and out of the storage area by utilization of a
forklift. When new bundles were brought in, or "old"
ones were removed by forklift, dust from the cardboard
was generated and, of course, fell about the area. On the
day shift, at the time in question, the forklift operator
was Anthony Dale Crawford who was assigned to the
assembly department. Crawford immediately reported to
Linda Black, assistant foreman, and Black immediately
reported to Darrell Williams, department foreman.
Crawford credibly testified that 2 to 4 weeks before
Christmas he met John Schadle in the employee rest-
room. Schadle had a broom in his hand and was yawn-
ing. Crawford asked Schadle how he was doing and
Schadle replied that he was all right because he had just
had a nap. Crawford, on cross-examination, acknowl-
edged that Schadle was laughing when he admitted to
the nap and the remark could have been just after break.
On cross-examination, Schadle stated that he made such
statements to other employees but only as a joke.
Crawford further credibly testified that during the
week before Christmas he told Williams that he had
heard rumors that Schadle was sleeping in the carton
storage area. Williams replied to Crawford that he
wanted to be immediately informed if he saw Schadle
sleeping there. Black testified that Williams told her a
few weeks before Schadle's discharge that there were
rumors that Schadle had been sleeping among the car-
tons. Black denied being instructed to look for Schadle
in the carton area.
Production employees on the day shift get a break
from 9 until 9:10 a.m. Crawford testified that on January
13, 3 or 4 minutes after the break was over he reported
to Black that an employees' had told him that Schadle
was "probably in the back asleep . .. in the back in the
cartoning two or three tiers back from the rear of the
building." Black responded that she would check into it.
Black testified that upon receiving Crawford's report
she first looked around to see if she could find Williams.
She failed to find Williams, so she went back to the stor-
age area "to see if I could find John." Black testified that
she first went to the area of an overhead door on the
east wall of the plant. She first went one way looking for
Schadle and did not find him. Further testifying, Black
stated:
[A]nd, I didn't see John, so I went back to the
[overhead] door and started from that area over and
then I seen John . . . he was lying in behind on
stack of cartoning-about 3 foot high. .... I was
standing on top of stack of cartoning that was
maybe 3-1/2 or 4 foot high, slightly to the left and
sighted John . . . he was lying down, with his head
against the cartoning, his feet propped up against
the wall.
Black further testified that Schadle was lying on his left
side with head supported from beneath with his palm on
his face and the top of his head against a stack of car-
tons. She further testified that Schadle was not visible to
someone walking in the aisle made by the movement of
the cartons because "there was too much cardboard in
the way." She stood on a stack of cartoning observing
Schadle in this position, with his eyes closed, "maybe 35
or 40 seconds." She did not say anything to Schadle.
'6 On direct examination Crawford identified the employee as Larry
Pauley, Schadle's cocustodian. Pauley was not called to testify by either
party.
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Black testified that after she so observed Schadle she
went back to her department in another attempt to find
Williams. She was again unable to do so and went to the
telephone to call Britain to whom she described what
she had observed and where.
Schadle testified that he had had a severe cold and had
been groggy, possibly from certain medication he had
taken. He sat down on a stack of cartons in front of
which was an unobstructed view from the length of the
storage area. He further testified that he sat down for no
more than 3 minutes, just enough time to blow his nose.
He stated that he saw Black climbing on a stack of car-
tons. When asked on direct examination at what point he
saw Black, Schadle testified:
I can't quote you an exact time. It was at the time
when I was sitting there. She came back and got up
and looked at some cardboard. She checked some
numbers on them to make sure there was still
enough supply to do what boxes. She's an assistant
foreman in assembly. She has to keep track of the
cartoning and-to make sure they have enough car-
toning for packaging the boxes.
She came back off from assembly and to the card-
board storage area, proceeded past from where I
was sitting, climbed up on a stack of cardboard and
acted like she was-I don't know I guess she was
looking at the numbers of them or counting the
stacks. I really have no idea what she was doing.
She was looking it over. She climbed back down
off the stack she was on and proceeded to go down
a different aisleway towards where the maintenance
cage and general production areas is.
At that point Schadle testified he got up and went to his
sweeping. (About 9:25 a.m. he saw Beal and Britain walk
through the carton storage area; perfunctory greetings
were exchanged, but nothing else was said.) Schadle
agrees that there was nothing said between him and
Black. Black testified that it is not part of her job to
check numbers on carton stacks.
In all respects that they differ, I credit Black over
Schadle. As I stated at the hearing, there was "no palpa-
ble17 reason to discredit Ms. Black." There is no incon-
sistency in any of her statements which would cause me
to discredit her. Moreover, Black appeared to be an un-
affected, unassuming individual of simple speech which
included no trace of embellishment in her account of the
facts. I am convinced that she told the truth. Conversely,
when testifying about his discharge Schadle did not have
an impressive demeanor and his testimony bears what I
consider to be a fatal inconsistency: he acknowledged
Black climbed on cartons, but could offer no plausible
reason for her to have done so if, as he described, there
was an open aisleway in front of him as he "sat" down.
As quoted above Schadle first testified, in detail, that
checking the numbers of cartons was part of her job and
was precisely what Black was doing when he observed
her, although he immediately withdrew this assertion and
I7 The record, p. 1326, 11. 17 and 18, is accordingly corrected.
stated that he did not know why she was climbing up on
the cartons.1 8 Black credibly testified that the only
reason she climbed up on the cartons was that Schadle
was surrounded by the various stacks of cartoning and
this was the only way she could see him, unless she
squeezed through a 10-inch opening between two of the
stacks of bails which surrounded Schadle. Respondent
introduced photographs of the area taken within hours
after Black observed Schadle. Black credibly testified
that the photographs accurately depicted the area in
which she found Schadle. Schadle was called in rebuttal
and asked on cross-examination specifically why, if he
was sitting on a stack of cartons before which there was
an opened aisle, Black would have been climbing on the
cartons. Schadle could offer no explanation. I find that
the reason Black was climbing on the cartons was that,
as she testified, it was the only way she could get an un-
obstructed view of Schadle.' Therefore, I find the Gen-
eral Counsel has failed to prove by a preponderance of
the evidence that Schadle was doing anything other than
sleeping during the 35 to 40 seconds that Black observed
him plus the time that elapsed between Crawford's
report to Black and Black's finding Schadle, a period of
at least 5 minutes.
After Black called Britain, Britain and Beal went to
the storage area. By the time they got there, Schadle was
sweeping again. Shortly before the 11:30 lunchbreak,
Eary told Schadle to go to Britain's office. When he got
there he was met by Britain, Bellis, Black, and Eary.
Only Black and Schadle testified about the meeting. I
find from the credible testimony of both:
Britain told Schadle that Black had observed him that
day at 9:20 a.m. sleeping in the cardboard storage area.
Schadle responded that since break was from 9 to 9:10
a.m. and since Britain was there at 9:25 he could not
even have had time to take a nap. Black responded that
he gave the appearance of sleeping.20 Britain stated that
Black was an agent of the Company and they would
have to take her word for it. Schadle asked if his passing
out union cards had anything to do with the accusation,
and he further stated that he felt Respondent had "been
after me" for about 6 months. Beal denied that the union
activity had anything to do with the action. Schadle in-
sisted that at most he sat down to blow his nose because
he was not feeling very well and that he had seen Black
II I believe Schadle did this because his venture that Black was climb-
ing on the cartons to inspect numbers was an attempt to explain why she
would have been climbing at all. He apparently sensed after he said it
that number-checking activity would not withstand scrutiny as an expla-
nation for Black's being up there. Upon such realization, he retracted his
theory and testified that he did not know why Black would have climbed
on a stack of canons.
g9 While Black did acknowledge there was a 10-inch space between
two of the stacks of cartons surrounding Schadle, this is not the fatal in-
consistency in her testimony that the General Counsel argues. Whether
Black could have squeezed through the opening or not, she did not. The
issue is whether Schadle secreted himself, as Black testified, or whether
he just sat down to blow his nose in an open and obvious place. Assum-
ing there was a 10-inch opening between two of the stacks surrounding
Schadle, he still had secreted himself from view of casual passers-by.
2o Contrary to the argument of the General Counsel I find no incon-
sistency or change of the allegation against Schadle in Black's saying, in
effect, that if Schadle actually was not sleeping, he certainly appeared to
be.
264
MAC TOOLS, INC.
when she was in the area. Black replied, "You don't
know where I was at, John." Schadle replied, "You
were standing right next to me." Britain asked Schadle if
he had told his foreman that he had been sick and Scha-
die replied that he had not because it would not have
done any good.
Britain told Schadle that he was suspended pending
further investigation and that Schadle should call Re-
spondent within a week to find out the disposition of the
matter. On the following day, Britain called Schadle and
asked him to return to the plant. At a meeting that after-
noon (January 14) Britain, Bellis, Eary, Black, Schadle,
and Tom Rayburn, a security officer of Respondent,
were in attendance. Schadle testified that Britain read
from a prepared statement; it was not placed in evidence.
Britain announced that Schadle was being discharged on
the basis of the accusation by Black. Britain and Schadle
argued the matter again, essentially repeating the state-
ments they had made the day before. In addition, Scha-
die stated that it was "very unfair and that I was con-
templating taking legal action." Schadle further asked
rhetorically, "[D]o you realize that you have only one
witness?" 2 1
Respondent's Investigation and Evidence of
Disparate Treatment
Thomas Rayburn, Respondent's employment manager
whose office is located in Savannah, Ohio, was called by
Plant Manager Britain the morning of January 13 and
told that Black had found Schadle sleeping. According
to Rayburn he told Britain "to get with Mr. Schadle and
get his version of the story and suspend Mr. Schadle
pending our investigation." Rayburn then called his su-
perior Howard Christiansen who had recently been made
manager of industrial relations. Christiansen told Ray-
burn to go to Georgetown to investigate the matter.
Rayburn then went to the Georgetown facility and spoke
to Williams, Black, Britain, Bellis, and employee Larry
Pauley, but not Schadle who, by that time, had left the
plant. He took photographs of the area where Black
found Schadle. Rayburn testified that after reviewing the
things he learned from his investigation he concluded
that "Mr. Schadle had intentionally gone on back in the
building in a secluded place where we do keep the card-
board and curled up and went to sleep out of the way."
When asked on what he based his conclusion, Rayburn
replied that he believed Black. On the morning of Janu-
ary 14 Rayburn called Christiansen and reported his find-
ings. Rayburn testified that:
Mr. Christiansen did ask me what was our past
practice and policy was dealing with people found
sleeping on a job and I did tell him that it was past
practice to discharge anyone found on the job
[sleeping,] however, this was the first incident that
had occurred at Georgetown.
Christiansen told Rayburn to go to Georgetown and dis-
charge Schadle.
si Credible testimony of Black and Rayburn.
Rayburn's information to Christiansen that no employ-
ee had been found sleeping at Georgetown was errone-
ous. On March 21, 1979, security guard Richard L.
Newman was suspended for a period of 2 days for
dozing off while waiting to open a plant gate for the first
shift. A supervisor found him and reported it to Re-
spondent's security personnel. Rayburn credibly testified
that, although he was employed by Respondent at the
time, he had no knowledge of the Newman discipline
and neither had Britain nor Bellis told him about it if
they knew. 22 Respondent submitted evidence of other
employees being discharged for sleeping at its other fa-
cilities, to wit: employee Burns on January 6, 1981, at the
Sabina facility; employee Fredrick on November 12,
1979, at Sabina; employee Baker on December 5, 1977, at
Sabina; employee Gray on March 28, 1977, at Sabina;
and employee Thompson on October 2, 1974, at Sabina.
The General Counsel argues that Respondent's dis-
charge of Schadle for sleeping, while Newman was sus-
pended for only 2 days, proves a case of discriminatory
treatment. I disagree. In the first place there is no evi-
dence that Christiansen, who made the decision to dis-
charge Schadle, or any other supervisor involved in the
Schadle discharge, 23 knew that one employee had re-
ceived discipline less than a discharge. In fact, Christian-
sen was told, albeit erroneously, by Rayburn that no
other employees at Georgetown had been caught sleep-
ing. Second, Walter Hockett, Respondent's chief of secu-
rity, who made the decision to suspend Newman, credi-
bly testified that he viewed as less serious Newman's
case because Newman had almost completed an entire
shift and had simply dozed off sitting up in a straight
chair at a time and place where he was certain to be dis-
covered by personnel reporting to the first shift. Thus,
Hockett contrasted Newman's case from other guards2 4
who were discharged because they had "deliberately"
slept on duty.2 5 Finally, Respondent's making one ex-
ception to its policy of discharging sleeping employees
does not make out a case of disparate treatment of Scha-
dle. In PPG Industries, 251 NLRB 1146 (1980), employee
and union activist Bedsole was discharged after being
discovered, as was Schadle, sleeping in a prone position
in a "secluded place." In approving the administrative
law judge's decision, the Board, at fn. 1, stated, in part:
In fact, the record contains only one example of an
employee who slept on a job in circumstances re-
sembling Bedsole's and was not discharged. The
evidence also shows, however, that Respondent ter-
minated 34 employees in the past 10 years for sleep-
ing on the job. In view of Respondent's record in
this area and the seriousness of Bedsole's miscon-
Z2 According to an exhibit submitted after the hearing without objec-
tion from the General Counsel, Britain was not assigned to the George-
town plant until April 16, 1979.
23 Although Eary was a supervisor of maintenance and security in Jan-
uary 1981, and was a security officerprior to that date, there is no evi-
dence that he was a supervisor at the time of, or knew of, the Newman
incident.
24 Burns, Baker, and Gray.
a' This included one who was discovered with a pillow and alarm
clock.
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct, we find that its decision to reprimand, rather
than discharge, one other employee for sleeping on
worktime does not establish that it treated Bedsole
in a disparate manner.
Therefore, assuming that Schadle's conduct could be
equated with Newman's, one case of different disposition
does not make out a case of disparate treatment.
Conclusion on Schadle's Discharge
Knowledge of Schadle's union activities is not denied.
Animus toward those activities is proven by the many
supervisory statements found herein that Schadle was
being watched because of those activities. It is therefore
clear that the General Counsel has presented a prima
facie case of unlawful discharge. Therefore, Respondent
bears the burden of proving that Schadle would have
been discharged even absent his union activities against
which it bore animus.2 6
I find and conclude that Respondent has met that
burden. Schadle had told at least one other employee,
Crawford, that he had napped in stacks of cartons. He
admitted "joking" about nap-taking to other employees.
Schadle's actual or jested practice about sleeping among
the cartons reached management. When Crawford re-
ported to Black that an instance of the "rumored" sleep-
ing practice of Schadle was then taking place, Black in-
vestigated immediately. She found Schadle secreted
among the stacks of folded cartons asleep, or apparently
asleep, in a prone position. She reported it to higher
management, which discharged him on the basis of
Black's report, and there is insufficient evidence of dis-
parate treatment to prove that the action would have
been anything other than discharge even absent union ac-
tivity by Schadle.
There is not the slightest doubt in my mind that Re-
spondent was looking for a reason to discharge Scha-
die.2 7 But there is also no doubt in my mind that Scha-
die handed Respondent a reason to discharge him. As
stated in Klate Holt, 161 NLRB 1606, 1612 (1966):
The mere fact that an employer may desire to ter-
minate an employee because he engages in unwel-
come concerted activities does not, of itself, estab-
lish the unlawfulness of a subsequent discharge. If
an employee 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 discrimi-
natory and therefore unlawful.
26 Wright Line, 251 NLRB 1083 (1980).
27 And there is also not the slightest doubt in my mind that Black
knew Respondent was looking for a reason to discharge Schadle, wheth-
er instructed to look for him among the cartons or not. When Black
could not find Williams she did not call or attempt to call Britain or any
other supervisor who had authority over Schadle. She attended to the
matter herself, and fast. She did so, I believe, because she knew Respond-
ent wanted a reliable witness, which she was, to catch Schadle commit-
ting a dischargeable offense.
Accordingly, I shall recommend the allegations that
Schadle was discharged for union or other protected
concerted activities be dismissed.
Settlement
In November 1981, Schadle, Respondent, and the
General Counsel reached a settlement agreement provid-
ing for the posting of a notice and the payment of
$13,000 to Schadle. But the settlement did not provide
for reinstatement. Before the settlement agreement was
approved by the Regional Director, Christiansen gave a
speech to the employees. Apparently on the basis of this
speech, the Regional Director refused to approve the set-
tlement agreement and this entire matter was brought to
trial. The text of the speech delivered on November 17
and 18 is as follows:
I asked to meet with you because I wanted to an-
nounce that the John Schadle matter has been re-
solved in a manner that the company and I are very
satisfied with.
We fired Mr. Schadle because he took advantage
of the company and in our opinion his fellow em-
ployees. The Labor Board wanted us to reinstate
Mr. Schadle. As a result of the resolution Mr. Scha-
die will never again work in this plant or any other
Mac Tools facility. The Labor Board also sought to
prove that we violated the law. We did not violate
any law and as a result of the resolution we have
not and will not admit that we did.
These are the two (2) important parts of this
case. We insisted on and won these two (2) points.
However, every resolution is a compromise, and
there is a downside to this resolution. We have paid
Schadle $13,000.00 as part of this resolution, a sum
less than one (1) year's wages. We naturally would
have preferred to give Mr. Schadle nothing.
Some of you may question why we gave Mr.
Schadle anything if we were convinced we were
right. I asked myself the same question. I am the
one who made the decision to discharge John Scha-
die. I discharged him for sleeping and I know that
there is no law against discharging an employee
who sleeps on the job. So I really was hesitant to
give Mr. Schadle any money. But Mac Tools is a
business and I made a business decision. If we con-
tinued to litigate this case, the company would have
had to spend much more money in litigation costs
than what we gave Schadle. The two (2) things I
could never have agreed to were, to permit Mr.
Schadle to work for Mac Tools, or to admit Mac
Tools did something wrong in this discharge. We
won on those points.
And although the $13,000.00 paid to Schadle may
seem like a large amount of money, it really is not.
Less than one (1) year's wages to a person with no
employment opportunity at Mac and very little
future employment opportunity in the area, is really
a small amount of money.
I think that Mac Tools is a good place to work.
In fact, I think this is the best place to work in this
266
MAC TOOLS, INC.
area. Every day, we receive new job applications
which we add to the three thousand applications we
have on file. This company will continue to grow.
Our future is bright. You will be a part of our
future and will share in our growth. Mr. Schadle
will not. To me, this is the thing that matters.
After he gave the prepared speech Christiansen enter-
tained questions. The General Counsel produced two
witnesses to testify regarding these questions, Howland
and Rickey. Both Howland and Rickey stated that Chris-
tiansen was asked by an employee what kind of reference
Schadle would get. Both Howland and Rickey testified
that Christiansen stated that Schadle would get a "neu-
tral" reference. Howland added that Christiansen stated
that a good employee would also get a statement of
"anything they did outstanding of the Company, but that
(Schadle] would never receive one of these recommenda-
tions." Rickey included no such statement as quoted to
by Howland and Christiansen credibly denied that any
such statement was made.
The complaint alleges:
On November 17 and 18, 1981, Respondent,
acting through Howard Christiansen at its George-
town, Ohio facility:
(i) Informed employees that it was futile to seek
remedies through Board processes.
(ii) Impliedly threatened to blackball and/or give
poor work performance references to employees
who engaged in union activities and/or processed
charges with the Board.
In her brief the General Counsel relies solely on the
quoted text of the prepared speech, apparently abandon-
ing any contention that the testimony of Rickey and
Howland support the quoted allegations. In her brief the
General Counsel argues that the speech is "indicative of
Respondent's continuing hostility towards Schadle and
his above-mentioned protected activities." 28 The General
Counsel further argues that the speech in its entirety is
one which would convey to the employees the impres-
sion that seeking Board remedies is futile because it
stressed the fact that Schadle would never work for Re-
spondent again and that the $13,000 would not last Scha-
dle very long.
Assuming that the speech was indicative of hostility
towards Schadle, this still does not, ipso facto, establish a
violation of Section 8(a)(l). Also, the employees are
hardly told that seeking Board remedy is futile. If any-
thing, they are told that Schadle was to receive a great
deal of money because he had invoked Board processes.
Finally, there is nothing in the speech which conveys a
threat to "blackball" Schadle or do anything else to
Schadle vis-a-vis his employment prospects with other
employers. Finally, after settlement of an NLRB case,
Respondent has a right to refuse future employment to
employees who waive reinstatement therein, as did Scha-
1' G.C. Br., p. 12.
die.29 At most, Christiansen was telling the employees
that Respondent would invoke this right.
Accordingly, I shall recommend that this allegation of
the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Mac Tools, Inc. set forth
above occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
fow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by:
(a) Soliciting grievances from employees and promis-
ing adjustment of such grievances in order to discourage
employees' support of the Union.
(b) Creating an impression among employees that their
union activities were under surveillance.
(c) Informing employees that they are being watched
by Respondent in order to discourage their union activi-
ties.
4. Respondent has not otherwise violated the Act.
5. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I
shall recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the
policies of the Act.3 0
ORDER
The Respondent, Mac Tools, Inc., Georgetown, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting grievances from employees and promis-
ing adjustment of such grievances in order to discourage
employees' support for the Union.
(b) Creating an impression among employees that their
union activities were under surveillance by Respondent,
z9 See NLRB Gen Counsel Adm. Ruling, No. SR-967 (1960), 47
LRRM 1038.
so 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.
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Informing employees that they are being watched
by Respondent in order to discourage their union activi-
ties.
(d) In any like or related manner interfering with, re-
straining, or coerceing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Post at its Georgetown, Ohio facility, copies of the
attached notice marked "Appendix.""3 Copies of the
al 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
notice, on forms provided by the Regional Director for
Region 9, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly 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 Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the allegations in
the complaint of violations of Section 8(a)(l) and (3) of
the Act be dismissed except insofar as specific violations
of Section 8(a)(1) are hereinabove found.
268