Marathon LeTourneau Company

National Labor Relations Board - Board Decisions

Jun 3, 1981

256 N.L.R.B. 350 (N.L.R.B. 1981)

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marathon LeTourneau Company, Longview Division
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local 745. Cases 16-CA-7723, 16-
CA-7885, and 16-CA-7913
June 3, 1981
DECISION AND ORDER
On July 31, 1980, Administrative Law Judge
Robert A. Gritta issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, the Charging Party filed cross-exceptions
and a brief, and Respondent filed a brief answering
the Charging Party's cross-exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge 3 and to adopt his recommended Order,
except as set forth below.
We agree with the Administrative Law Judge's
finding that Respondent violated Section 8(a)(1) of
the Act by its disparate application of its no-solici-
tation rule 13 and its no-distribution rule 14. We do
not, however, agree with his finding that Respond-
ent violated Section 8(a)(1) of the Act in the main-
tenance of the rules. The Administrative Law
Judge found that rule 13 prohibits oral solicitation
in work areas without delineating a special purpose
and that rule 14 prohibits distribution of literature
in nonworking areas, also without explicating a
special purpose. Respondent excepted to this find-
ing, contending that the General Counsel did not
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In his Decision the Administrative Law Judge states that an attend-
ance chart shows that six employees-Temple, Swaner, Jackson, Brad-
ford, McLain, and Holiday-were guilty of "grossly excessive" absences
(in Respondent's terms) but were subjected to minimal or no discipline. It
appears that the Administrative Law Judge meant Howell rather than
Holiday, whose attendance record is excellent, since Howell did exceed
the rule of three absences in November 1977.
' The Administrative Law Judge rejected Resp. Exh. 114 on the
grounds that the document was not properly authenticated Respondent
excepts and requests that the record be reopened to enable it to adduce
testimony concerning Exh. 114. We find Respondent's exceptions without
merit. Exh. 114 purports to be a summary of information extracted from
Respondent's business records, but it is not itself a document prepared in
the ordinary course of business and therefore fails to qualify under the
business record exception to the hearsay rule. See Federal Rules of Evi-
dence, §803(6). Respondent failed to proffer as a witness the person who
prepared Exh. 114 and does not now offer to show unavailability of that
witness at the time of the hearing. Accordingly, inasmuch as the docu-
ment was not properly authenticated, and since it was offered to prove its
contents, it was inadmissible. Federal Rules of Evidence, §901. We deny
the request to reopen the record.
256 NLRB No. 54
attack the validity of the rules and that the rules
themselves are not facially invalid.
We agree with Respondent that, since the facial
validity of the rules was not raised in the complaint
or put in issue at the hearing, Respondent was
denied the opportunity fully to litigate the issue of
the rules' validity and to present evidence justify-
ing them, if necessary. Accordingly, we will not
adopt this finding of the Administrative Law
Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Marathon LeTourneau Company, Longview Divi-
sion, Longview, Texas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph (c):
"(c) Discriminatorily enforcing its no-solicitation
rule 13."
2. Substitute the following for paragraph l(d):
"(d) Discriminatorily enforcing its no-distribution
rule 14."
3. 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
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL. NOT interrogate employees con-
cerning union membership, activities, or sym-
pathies of our employees.
WE WILL. NOT threaten employees with dis-
charge for engaging in union activities.
WE WILL NOT restrain our employees in the
wearing of union insignia.
WE WILL NOT discriminatorily enforce rules
13 and 14 or any rule concerning oral solicita-
tion or initialing, signing, distributing, or post-
ing of literature.
WE WILL NOT discharge, layoff, or other-
wise discriminate against any employee in
order to discourage membership in, or support
MARATHON LETOURNEAU COMPANY 351
of, Local Union 745, International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other
labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL offer to Howard Young, Ulysses
Wagnon, Roger Doss, Richard East, and Rich-
ard Wade immediate and full reinstatement to
their former positions, without prejudice to
their seniority or other rights and privileges,
and WE WILL make them whole for any loss of
earnings or benefits which they may have suf-
fered by reason of our discrimination against
them, with interest thereon as provided by the
National Labor Relations Board.
WE WILL make whole James Dorough for
any loss of earnings or benefits which he may
have suffered by reason of our discrimination
against him, with interest thereon as provided
by the National Labor Relations Board.
MARATHON LETOURNEAU COMPANY,
LONGVIEW DIVISION
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITrA, Administrative Law Judge: This
case was heard on October 23-27, December 4-8, De-
cember 13-15, 1978, and February 12-14, 1979, in Long-
view, Texas, based on charges filed by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 745 (herein the Union),
on January 31, May 15, and May 25, 1978, with amend-
ments and a second consolidated amended complaint
issued by the Regional Director for Region 16 of the Na-
tional Labor Relations Board on August 30, 1978.1 The
complaint alleged that the Marathon LeTourneau Com-
pany, Longview Division (herein Respondent), violated
Section 8(a)(1) and (3) of the Act by coercive interroga-
tions, restraint, threats, and discriminatory suspensions,
discharges, denials of pay and overtime. Respondent's
timely answer denied the commission of any unfair labor
practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence, and to argue orally. Briefs were submit-
ted by the General Counsel and Respondent. Both briefs
were duly considered.2
' All dates herein are in 1978 unless otherwise specified.
2 Among the case citations in the General Counsel's brief were several
citations to administrative law judges' decisions I have neither consid-
ered nor reviewed those decisions because until the Board rules on them
there is no precedent value
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor on the wit-
ness stand, and upon substantive, reliable evidence con-
sidered along with the consistency and inherent probabil-
ity of testimony, I make the following:
FINDINGS
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I find
that Marathon LeTourneau Company, Longview Divi-
sion, is a Delaware corporation engaged in the manufac-
turing of bomb casings and heavy construction equip-
ment in Longview, Texas. Jurisdiction is not in issue. Re-
spondent, in the past 12 months in the course and con-
duct of its business operations, purchased and received at
its Longview, Texas, facility, goods and materials valued
in excess of $50,000 directly from points located outside
the State of Texas. I conclude and find that Marathon
LeTourneau Company, Longview Division, is an em-
ployer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
1. BUSINESS OF RESPONDENT
Respondent is an international corporation with offices
in Houston, Texas. Since 1945 Respondent has operated
a division in Longview, Texas, the situs of the alleged
violations. The Longview Division manufactures heavy
equipment used in mining, earth moving, and material
handling industries. In addition, the division manufac-
tures and repairs industrial sized electric generators and
motors. An attendant steel mill produces the steel used in
both the manufacture and repair processes.
The Longview Division is housed in some 20 buildings
and employs in excess of 1,200 persons. The plantsite
consists of approximately 2,000 acres with an excess of
20 gates for egress and ingress. An industrial relations
department in conjunction with the personnel depart-
ment administers and maintains all policies and proce-
dures of the corporation. These policies and procedures
directly concerning the rank-and-file employees are em-
bodied in a booklet, "Employee Policy Guide" and the
Company's posted "rules and regulations." Each is pre-
sented to new employees upon hiring. In addition to the
usual personnel forms required for each employee Re-
spondent utilizes employee information records (EIR) to
document infractions of regulations and counseling by
supervisors attendant to the infractions. All supervisors
are responsible for enforcing the company rules and reg-
ulations and those policies requiring specified conduct
from the rank-and-file employees.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A portion of the General Counsel's case consists of es-
tablishing the union activity of specific employees and
A.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's knowledge of such activity. There is testi-
mony in the record evincing an organizational drive by
the Union with the support and aid of several employees.
However, some inconsistencies are present as well. I
have, based upon the testimony I credit, concluded that
the first union meeting was held November 17, 1977,
with an additional meeting convening on January 29,
1978. Several employees, beginning in November 1977,
handbilled employees at various plant gates before and
after shifts on two or three occasions during the work-
week. Additionally, the campaign paraphernalia such as
buttons, stickers, and logos was introduced January 1,
1978. The certainty of additional activity is confused by
contradictory testimony and/or lack of plausibility. Al-
though apparently available, neither objective evidence
nor testimony from the union representative is in the
record.
I have further relied on admissions from Respondent
for my above conclusions.
The findings below are based upon the testimony of
witnesses I credit and where necessary to their under-
standing I have indicated the witness or testimony I do
not credit.
A. Interrogation
1. Admitted Supervisor Bolton
Wagnon testified that he attended the first union meet-
ing held on November 17, 1977. In addition to attend-
ance at the meeting he wore union buttons on his cap
and jacket and handbilled employees between shifts be-
ginning in November 1977. Wagnon stated that the day
following his attendance at the union meeting he was in
the plant riding the scooter and gathering parts when
Bolton, foreman of equipment assembly, asked if he had
attended the union meeting. Wagnon acknowledged that
he had attended and Bolton replied that he thought
Wagnon had better sense than to attend a union meeting.
The conversation ended and Wagnon continued chasing
parts. Bolton testified that he saw Wagnon chasing parts
in his (Bolton's) department every day and he speaks to
Wagnon every day. Bolton denied any conversation with
Wagnon about the union meeting or any knowledge of
Wagnon's union activity prior to December 21, 1977.
The date supplied by Bolton is based upon his vacation
during the month of December 1977. Bolton stated that
he saw Wagnon wearing a union button in February but
does not know when he started wearing it. Bolton fur-
ther stated that he was aware of union talk around the
plant and planning for union meetings by the employees
in November 1977. He did not hear any union talk in his
department but did hear employees talking union when
he visited other departments in the plant. Bolton testified
that he was familiar with the do's and don'ts for supervi-
sors during union campaigns both before and after the
supervisors' meeting in January 1978. The main point he
recalled was not to discuss union activities with hourly
employees. Bolton stated that if employees asked him
about the Union he changed the subject. He denied
speaking to any employee about union activity since he
learned of the union activity in the plant.
2. Alleged leadmen
a. Chipman
Wagnon testified that the same day he discussed the
union meeting with Bolton he was asked by Chipman,
the leadman in his department, if he (Wagnon) had at-
tended the union meeting. Wagnon told Chipman that he
had attended the meeting and was a union organizer.
That was the end of the conversation.
Chipman testified that he was a foreman 5 years ago
but was replaced by Burgess and has been a warehouse-
man since. He functions as the shipping clerk, being the
most senior employee in the warehouse with 18-1/2
years service. Chipman punches a timeclock, is hourly
paid, and receives the same benefits as other hourly em-
ployees. He does not attend supervisory meetings nor fill
in for Burgess during times of absence or vacation. Rash,
the assistant foreman, is in charge in Burgess' absence
except occasionally for overtime work on Saturday
when neither Rash nor Burgess is present. Although
there are no leadmen in the department Chipman will act
as leadmen occasionally during Saturday overtime. Chip-
man physically works at the same tasks as the other war-
ehousemen with the added duty of executing the paper
work to move the parts for shipping or transfer. He per-
forms this paperwork in the foreman's office on the fore-
man's desk. Chipman was invited to attend the union
meeting by a fellow employee but declined. He denies
that he asked any employee, especially Wagnon, if they
had attended a union meeting in November 1977. He did
recall, however, telling one employee who asked him
about the meeting that he (Chipman) had been elected
secretary/treasurer.
Doss testified that Chipman was like a leadman on Sat-
urdays in Burgess' absence. He made sure the work was
done. Doss did not know what Chipman did each day
because Chipman worked in the back rather than side by
side with Doss.
b. Turner
Beall testified that Turner on November 23, 1977,
asked him if he was going to vote for the Union. The
questioning took place in the department at the work sta-
tions. Beall replied, "Yes sir, if I get a card." That was
the end of the conversation. Beall stated that on Novem-
ber 30, 1977, after finishing lunch, he was sitting at a
table in the oven department and signing his union card.
Turner was standing next to him, watching him sign but
did not say anything. Beall acknowledged that his affida-
vit contained the following: "Turner is not a supervisor.
No supervisor ever said anything to me about the Union.
I did not pass out any union cards. I have never been
told that Stanley [Turner] had any authority over me at
all. I have never been told that I had to do what he said
or that he was any kind of supervisor. No one ever said
that Stanley [Turner] was a leadman." Beall testified that
it was a usual thing for Turner to ask him to go help in
the oven and buff, paint, or clean. Whenever one of the
regular oven employees was absent, Beall usually filled
in by helping the other oven employees. Turner some-
---
MARATHON LETOURNEAU COMPANY 353
times did work in the oven as well as on the benches like
other employees.
Turner testified that he is a leadman and setup man
and has been for about a year. In his 27 years with the
Company he has performed all the work tasks related to
the manufacture of electric motors. Turner is the most
experienced employee in the department. Although he
gives employees the work assignments individually, who
gets what is decided by the work classification, e.g., the
employees who wind motors get the motor winding as-
signments. The work orders to Turner originate from
Foreman Impson, Superintendent Fox, or Foreman
Whitwell. Turner stated he did not have the authority to
hire, fire, suspend, discipline, grant overtime, or to rec-
ommend discipline. In the specific case where an em-
ployee refuses to do an assigned job, Turner can only
report such refusal to the foreman. Turner was instructed
by Supervisor Fox that in any situation when Fox was
absent and Turner needed help in the department,
Turner was to seek the aid of one of the department
foremen close by. Turner denied any knowledge that
Beall had signed a union card or that Beall was for the
Union. Turner further denied asking Beall if he would
vote union.
Fox testified that Turner did not have any privileges
other than what all employees have. Turner was the
most senior and most experienced and helped all employ-
ees in the department to do their job. If any employee
did their job incorrectly then Turner would show them
how to correct it. Fox expected Turner to see that the
work was done right, as assigned or required by produc-
tion. Turner leads approximately 13 employees in his de-
partment.
Analysis and Conclusions
The record evidence shows that Wagnon and other
employees had engaged in union talk in the plant in No-
vember 1977. A portion of the talk was limited to orga-
nizing union meetings for employees to attend. One such
meeting was organized for November 17, 1977. Foreman
Bolton was aware of the planned meeting having over-
heard employees outside his department discussing the
plan. Wagnon, of course, was not under Bolton's super-
vision and admittedly was talkative throughout the plant.
Wagnon impressed me as a credible witness straining to
recall the events as they occurred. Bolton's denials on
the other hand were terse "no's" punctuated by testimo-
ny supporting a reasonable and normal curiosity of man.
Bolton's admissions of the employees' union activity and
premeeting knowledge of the meeting in conjunction
with his prideful avowal that no union talk took place in
his department leads me to conclude that he had more
than a silent interest in the employees and their activity.
Bolton's only recall of the supervisors' meeting relative
to the union campaign was not to discuss union activities
with employees. He founded his denials upon his famil-
iarity with a supervisor's role in such a campaign. The
supervisory meeting, however, was convened several
months after he first learned of the employees' union ac-
tivity and the date of the employees' first union meeting.
Bolton's denials are not supported by the theme of his
testimony taken as a whole and I therefore discredit his
denials. Accordingly, I find that Bolton interrogated
Wagnon on the subject of the union meeting held the
night before.
With regard to the alleged interrogation by Chipman
and Turner an additional issue is presented. The General
Counsel alleged in the complaint that Chipman and
Turner were leadmen and supervisors within the Act.
Respondent denied both the classifications and the statu-
tory conclusion. The resolution of the supervisory issue
in the negative would in turn resolve the alleged 8(aX1)
violation of interrogation, however, the General Coun-
sel's proffered testimony would not be fully considered.
I, therefore, conclude and find that Chipman did ask
Wagnon if he attended the union meeting. I do so be-
cause I credit Wagnon's testimony on the point and dis-
credit Chipman's denial of the interrogation. Chipman
was invited by several employees to attend the same
meeting but declined. In addition he was solicited to join
the Union by his fellow employees. Their union activity
was no secret from him anymore than the expected date
of the subject meeting. Chipman's denials on the stand
were responsive to leading questions from counsel and
have no support from the bulk of his testimony.3 Chip-
man's background, as a foreman and a confidant of his
fellow employees, causes me to discredit his denials and
conclude that Wagnon's version of the conversation is
more truthful.
Beall's testimony of his limited union activity was not
impressive to me. His demeanor was such that he ap-
peared intent on establishing a certain role in the cam-
paign and known to Turner. Beall may have signed a
union card but I do not believe he signed it in front of
Turner in the oven, nor do I believe that Turner ques-
tioned him about voting in an election 4 days after the
first union meeting. I credit Turner's denial of knowl-
edge of Beall's union sympathies and conclude and find
that Turner did not question Beall about voting at any
time.
Whether Respondent is to be charged with a violation
via Chipman's interrogation of Wagnon hinges on the
status of Chipman. If Chipman is a supervisor his knowl-
edge of union activity of rank-and-file employees is im-
puted to Respondent. Likewise any violative conduct en-
gaged in by a statutory supervisor becomes the conduct
of Respondent through the agency of his supervisor. The
record does not contain any evidence of supervisory ca-
pacity of Chipman or Turner. The General Counsel's
witnesses, themselves, support only a lead status of both
Turner and Chipman. It is clear that neither has authori-
ty to responsibly direct employees in their respective de-
partments nor does either possess any powers enumer-
ated in the statute. I find the lack of authority to disci-
pline employees who fail to follow the orders relayed by
Turner instructive of his status as something less than su-
pervisory. In such instances he can only report the inci-
dent to his foreman. Albeit the General Counsel has
proven the lead status of Turner and Chipman as alleged
in the complaint he has failed to sustain his burden to
show them to be statutory supervisors and/or agents of
3 Particularly that portion that shows Chipman engaged in conversa-
tion with employees about the meetings
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent within the meaning of Section 2(11) or (13)
of the Act. Accordingly, I shall dismiss the allegations
pertaining to Turner and Chipman.
B. Restraint
1. Admitted Supervisor Arp
Young stated that he handed out handbills, signed up
employees on union applications, wore union insignia on
his person, and attended at least one union meeting on
November 17, 1977. Shortly after the meeting he began
handbilling or distributing union applications at the north
gate of the plant accompanied by Joe Daniels. Young
testified, "I was handing out-I was signing up union ap-
plications." A discussion or conversation with Mr. Arp
took place. "He pulled up in front of the car, and he
asked what we was doing. And I told him we were sign-
ing up applications. He just told us to get off of the lot.
He just asked Joe, was-I don't remember the exact
words. But he asked him if he was going home, you
know. And Joe said, 'In a few minutes."' Arp said, "that
we had better get off of the lot with that union stuff."
Young stated that when he responded to Arp he did not
use the word "union" nor did he show Arp what paper
he had in his hand. Young testified, "He asked to see, but
I wouldn't show it to him. He told us to get off the lot."
Young stated that the Union was not discussed with Arp.
Daniels stated that he and Young were passing out
union cards and getting the employees to sign them if
they would at that time. While they were so engaged
Foreman Arp came up to them. Arp asked Daniels what
he was doing and Daniels told him he was passing out
union cards. Arp then asked Daniels if he was going
home and Daniels replied he was when he finished. Arp
said nothing more, got in his car and drove off. Arp did
not tell Daniels or Young that they had to leave the
parking lot. Arp did not tell either of them that they had
to stop what they were doing, but, rather Arp let them
continue and left the lot.
Arp, the admitted supervisor of machine fabrication,
testified that he did not recall any parking lot incident on
November 18, 1977. He did recall seeing Joe Daniels and
McCarver, two employees, in the steel mill parking lot
after shift about November 19, 1977. Arp could not
recall ever seeing Young in the parking lot and stated he
would not recognize him now if he saw him. The em-
ployees he did recall seeing were standing by the hood
of an auto. Arp carries a little book in his pocket daily
for making personal and business entries that occur each
day. He used the book to record instances where em-
ployees engaged him in conversations about the Union.
He stated he did this upon advice of counsel so he would
have something to jog his memory later, if necessary.
There were no entries in November or December 1977.
2. Admitted Supervisors Alford, Bratcher, and
Bolton
Wade testified that he began his union activity by at-
tending the first union meeting November 17, 1977. He
received union cards at that meeting and began distribut-
ing them. In late January he received union buttons and
stickers and began displaying them on his person. Ap-
proximately the same time he distributed union leaflets at
the plant gate on one occasion between shifts. Wade also
attended the second union meeting on January 29. On
February 8, about I p.m., he became ill thinking his dia-
betes was acting up. He asked to be excused from work
and was excused by Alford. Wade returned to work on
February 10 and upon arriving in the department was
confronted by Alford before punching in. Alford said,
"Well, you have been on a cheap drunk." Wade replied,
"No sir, I don't drink." Wade testified, "Alford thumped
my button and said I had better quit worrying about out-
side interference and other people and get my act togeth-
er."
Alford denied that he ever thumped any employee's
union button and specifically denied that he touched
Wade's. He did acknowledge that the first time he saw
Wade wear a union button was February 1.
Wagnon stated that on February 4 while he was in the
machine shop checking parts, Bratcher saw him wearing
a union button. Bratcher then commented to Wagnon
about the button. Wagnon testified, "and he told me that
I could stay but my button would have to go. So I just
turned around and left."
On February 7 Wagnon was issuing parts at the gate
in the stores department. Bolton came up to the gate to
get some parts. Bolton saw the union button on Wagnon
and told Wagnon he should not be wearing the button
because the Union had pulled out. Wagnon responded
that he had not heard of the Union pulling out. Bolton
got his parts and left.
Bratcher stated the he first saw the union button on
Wagnon about February 1. On one occasion when
Wagnon was in the machine shop office Bratcher
reached up and touched the button and looked at it.
Bratcher read the legend but did not say anything to
Wagnon about the button. Bratcher stated he just walked
off.4 Bratcher further stated that he was told by the
Company in a meeting that supervisors were not to
harass any employee or run any employee out of their
department because the employee was for the Union. He
places this company meeting after he first saw Wagnon's
button on his person.
Bolton denied making any statement to Wagnon or
any employee on February 7 about union buttons being
worn by employees. Bolton stated that he was aware of
the do's and don'ts of supervisors during a union cam-
paign. He had attended company meetings for this pur-
pose in the past with the most recent being held in Janu-
ary. Bolton did see Wagnon in early 1978 wearing union
buttons. He could not place the date other than in Febru-
ary.
Analysis and Conclusions
The evidence of the conversation in the parking lot
presents a circumstance where no one witness can be be-
lieved totally. Young on direct supports the allegation as
framed but on cross denies that the word union was
mentioned by anyone and further denies disclosure of
t Powell's testimony offered to corroborate Bratcher was too general
to identify as relating to the incident in question. I find his testimony of
no help in my determination.
MARATHON LETOURNEAU COMPANY 355
any union material. Daniel supports the mention of union
in the conversation but states that Arp said nothing
about stopping what they were doing or that Arp told
them to leave the parking lot. Arp denies that Young
was there or that any such conversation took place. He
supports this denial with blank pages in his little book
wherein he kept notes of employees' union activity upon
advice of company counsel. The advice of counsel, how-
ever, postdates the alleged occurrence. Assuming, ar-
guendo, if the General Counsel's witnesses are credited in
the critical areas the allegation is still not supported.
There is no testimony that the employees were told to
cease distributing union cards in the company parking
lot. Accordingly, I find that Respondent did not violate
the Act through Supervisor Arp.
Wade impressed me with his demeanor and especially
the lack of any animus toward Respondent or Alford in
particular. Alford on the other hand was intent on de-
meaning Wade even with regard to admitted facts or cir-
cumstances. Alford's denials in relation to Wade's union
buttons were sterile and with little attempt to recall the
circumstances. Further his denials were all encompassing
of his conduct vis-a-vis the employees in his department. I
was not impressed with Alford's demeanor or the sub-
stance of his testimony. I credit Wade's version of the
conversation on the morning of February 10 and con-
clude that the thumping of Wade's button (for emphasis)
in conjunction with the statement of outside interference,
other people, and getting the act together constitutes an
infringement upon employees' Section 7 rights by re-
straining employees in the free exercise of those rights. I
therefore find that Respondent through Supervisor
Alford violated the Act.
Wagnon's version of the February 4 comment by
Bratcher was clear, short, and to the point. Wagnon was
a good witness and did not mince words. He appeared to
be making a genuine effort to recall what was said.
Bratcher likewise impressed me with his straightforward
manner and unequivocal recall of touching Wagnon's
button and reading the legend. Although denying that he
said anything to Wagnon about the button he did not
deny making some remark to Wagnon. However, even if
Wagnon's version is credited, and it is, I do not find that
Bratcher crossed the line. The test for 8(a)(1) violations
is correctly stated by Respondent in its brief and under
the circumstances present here I cannot say that such a
nebulous remark reasonably tends to interfere with the
free exercise of employees' rights under the Act. I shall,
therefore, dismiss the allegation against Bratcher.
The evidence relating to the February 7 remark of
Bolton to Wagnon is likewise clear and short. Wagnon
credibly recalls the remark made by Bolton in Wagnon's
department when Bolton arrives on business. Bolton
denies any remark to Wagnon and partially supports this
denial with his understanding of the do's and don'ts for
supervisors. Bolton's demeanor and substance of his testi-
mony was undoubtedly calculated to place the activity
of any employee as outside his department (a fact he ap-
parently was proud of) and therefore outside his interest.
I conclude, however, that Bolton did make the remark to
Wagnon on February 7 because he was interested in
limiting union activity of employees in any department. I
have considered Respondent's position as dictated to its
supervisors in the management meeting in January and
conclude that such edicts are not controlling, in that, in
some cases the individual supervisor's convictions will
override management's policies. However, I do not find
that Bolton's remark was coercive or restrained Wagnon
in the exercise of his statutory rights.
C. No-Solicitation Events
I. Wagnon stated that on February 1 he was storing
parts with a forklift when Burgess came up to him.
Wagnon testified, "Burgess approached me and told me
that he was warning me, I had been written up for solic-
iting on Company time, and if I got wrote up one more
time he was going to have to let me go. I asked him who
had turned me in. He said he couldn't tell me. I also
asked him-he didn't tell me when or where it was sup-
posed to take place." Wagnon stated that he had been
given antiunion literature by Jackson in the warehouse in
front of Burgess' office in Burgess' presence. The antiun-
ion distribution occurred on February 6 during working
time.
Burgess admitted knowledge of Wagnon's union activ-
ity and that he wrote up Wagnon for soliciting on com-
pany time. Although he refused to disclose to Wagnon
any details he did testify that an employee reported to
him that Wagnon had talked to the employee about the
Union. Burgess testified that the employee told him,
"Wagnon talked to me about the union. Once after lunch
after the work whistle blew and the employee walked
back into the restroom and was contacted there. Another
time, just outside of-in stores-but outside the building,
he was contacted twice on Company time. Wagnon was
soliciting or trying to get him to sign a card for the
union." Burgess denied seeing any employee distribute
antiunion literature in his department especially in front
of the office. Burgess did admit that Jackson had some-
thing to distribute but he told Jackson that he could not
authorize it.
Chipman denied seeing any employee distribute any
literature inside the plant, particularly in front of Bur-
gess' office.
Howell stated that he had reported Wagnon's solicita-
tions to Burgess because that was the way to get it
stopped. Wagnon followed him into the restroom just
after lunch after the whistle had blown to go back to
work. Wagnon asked if he wanted a union card. The
second time was in the salvage yard. Howell testified,
"Well, that is as far as it got. He [Wagnon] started out of
the gate, and I said, 'No, I don't want no part of it."'
2. Dorough stated that in February he posted union
handbills on the vending machines in the electric build-
ing. He put them up before the shift started and minutes
later they were taken down by Foreman Impson. At the
time no other material was on the machines. Dorough
did see antiunion literature in other departments in the
plant. He also saw Impson put up a notice on loyalty to
the Company. Dorough complained to Supervisor
Whitwell about Impson taking down his union postings.
Dorough stated that Whitwell told him since the ma-
chines were not company property it was all right to
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
post the union leaflets. Dorough made two attempts to
post prounion leaflets. The first in February and the
second in April or May. On each occasion he did so be-
cause antiunion literature was posted elsewhere in the
plant.
Whitwell acknowledged that some antiunion literature
was in the plant. He denied, however, that he told Dor-
ough he could post the prounion literature on the vend-
ing machines. Whitwell recalled, when Dorough com-
plained of Impson's removal of the postings, he told
Dorough that Impson probably did it because they
should not have been posted in the first place.
Impson stated that the vending machines and the ad-
joining wall was the location in the electric building
where company notices were posted. Also employees
posted notices of sales. All notices are supposed to be ap-
proved before posting and approval was evidenced by
Industrial Relations Manager Bellatti's initials. Impson
said he took down all notices that were not approved but
in the case of the notices for sales he left them up a rea-
sonable length of time. On one occasion he saw a notice
posted in the engineering department. The notice was
concerned with loyalty to one's Company and if an em-
ployee wanted to complain he could quit. Impson posted
the loyalty notice on the vending machines in the elec-
tric building with the permission of Dan Jones, the plant
manager. The notice was not initialed by Jones or
anyone else. Within an hour of the posting someone took
the notice down. Impson did not know who removed the
notice but he speculated it was probably removed be-
cause of the absence of approval initials. Impson stated
that he took down Dorough's notices because he felt if
Dorough could put them up on company time then he
(Impson) could take them down on company time.
Impson did not, however, see who put the notices on the
vending machines each time they appeared.
Analysis and Conclusions
The General Counsel contends that Burgess by repri-
manding Wagnon discriminatorily applied Respondent's
no-solicitation rule because Wagnon was prohibited from
soliciting on company property during his nonworking
time in a nonworking area. The General Counsel rests
his contention, partially, on testimony relating to distri-
bution of antiunion literature by rank-and-file employees,
ostensibly without incident, although occurring in the
presence of supervision.
Respondent admits the reprimand to Wagnon for the
stated purpose supported by the testimony of the report-
ing employee. However, Respondent denies the occur-
rence of antiunion literature distribution or the allowance
of any such distribution.
Relative to the allegations involving Foreman Impson,
the General Counsel claims that Respondent again discri-
minatorily applied its no-solicitation rule by disallowing
Dorough to post union literature but allowing antiunion
literature to be posted in the plant.
Respondent admits to disallowing Dorough to post
union literature on the vending machines but denies al-
lowing antiunion postings in the plant. Foreman Impson
admittedly removed the union literature from the vend-
ing machines in accordance with Respondent's unwritten
rule on prior authorization from management for all
postings.
The General Counsel has not specified which rule of
Respondent's is under attack nor has the General Coun-
sel drawn any distinction between the Wagnon and Dor-
ough incidents.
Respondent, on the other hand, points to the testimony
of disparate treatment of Wagnon's oral solicitation and
the antiunion literature distribution in Wagnon's depart-
ment during worktime as an ambivalence in the General
Counsel's case. Respondent finalizes its argument by stat-
ing that neither Wagnon's nor Dorough's circumstance
has anything to do with Respondent's no-solicitation
rule, referenced as rule 13. Further Respondent correctly
alludes to the absence of any allegation in the complaint
challenging the validity of its no-solicitation rule.
Respondent has two rules which appear to jointly con-
trol solicitations. They appear in Respondent's written
regulations as follows:
Rule 13. Soliciting in work areas during scheduled
work time or so as to interfere with production is
prohibited. Solicitations by third persons is prohibit-
ed at all times.
Rule 14. Initialing, signing, distributing or posting
any literature, posters, handbills, petitions or any
other notices during scheduled work time or so as
to interfere with production is prohibited.
Albeit the allegations do confuse solicitation and distri-
bution or posting and the evidence likewise confuses the
two, a defense founded upon that confusion is lacking ar-
guable substance. A reading of Respondent's rules also
produces confusion of solicitation and distribution or
posting.
The Board's approach to interpretation of employer
rules prohibiting solicitation or distributions has uniform-
ly centered upon the meaning conveyed to employees as
to when and where they may engage in solicitation or
distribution. Thus, where the employee's statutory rights
of self-organization are not invaded by the terms used in
the stated rule, an employer enjoys a presumption of va-
lidity of the rule. However, the presumption may be re-
butted by extrinsic evidence which shows a too restric-
tive application or enforcement of an otherwise valid
rule. Therefore, the validity of any rule may rest upon its
application and enforcement by the employer.
Respondent argues that the General Counsel's failure
to challenge the validity of its no-solicitation rule as
written, precludes any consideration of the rule itself. I
disagree. The General Counsel has questioned Respond-
ent's policies of no-solicitation and no-distribution in spe-
cific instances. Respondent has defended the implementa-
tions of those policies by specific acts and conduct di-
rectly related to its rules and regulations as promulgated
and enforced by its supervision. Any scrutiny of the en-
forcement of a rule must necessarily include considera-
tion of the rule itself. If for no other reason than to com-
pare the enforcement of the rule by supervision to the
prohibitions against employee conduct conveyed by the
terms used in the rule. Further, all rules must be uni-
MARATHON LETOURNEAU COMPANY 357
formly applied to the work force to enjoy validation. I
conclude that the substance of the rules as evidenced in
the record are subject to my scrutiny as well as the
manner and means of enforcement.
Even if rule 13 was not considered for its content, the
reprimand to Wagnon would be discriminatory. The
record shows Wagnon's first alleged transgression to
have taken place in the restroom shortly after the return-
to-work whistle blew but before either employee had in
fact returned to work. The second transgression took
place in the salvage yard but the testimony leaves much
doubt as to whether Wagnon actually engaged in a so-
licitation. Respondent's witness (relied upon for the rep-
rimand given to Wagnon) knew Wagnon was a union
protagonist and wanted nothing to do with him. I under-
stand his testimony as anticipating a solicitation by
Wagnon and stopping it before it was begun. The report
Respondent got from the alleged harassed employee was
ambiguous to say the least, however, Wagnon's side of
either event was not solicited. I can only infer that Re-
spondent was not concerned with all the facts surround-
ing the events but rather was intent on disciplining a
known union adherent for violation of its rule against so-
licitation. No evidence was offered to show any interfer-
ence with production, therefore, the reprimand rests
upon soliciting in a work area during scheduled work-
time. The reprimand, thusly founded, must fall. One so-
licitation occurred in a nonwork area and at a time diffi-
cult to identify as worktime. The instance of any solicita-
tion the second time is open to question and, therefore,
no basis for discipline to Wagnon. Accordingly, I con-
clude and find that Respondent's reprimand to Wagnon
for violation of its no-solicitation rule was discriminatori-
ly motivated and designed to discipline a union adherent
for exercising his right under Section 7 of the Act. In so
finding I have considered the uncontroverted testimony
that solicitations sponsored by factions other than union
factions are allowed by Respondent and participated in
by supervision and the lack of a complete investigation
by supervision before issuance of the reprimand. Re-
spondent has thereby violated Section 8(a)(l) of the Act.
I further conclude that the terms used by Respondent
in its rule 13 do not raise a presumption of validity re-
quiring extrinsic evidence to rebut the presumption. See
Essex International, Inc., 211 NLRB 749 (1974). Also, the
Board has held that solicitation of signatures on union
authorization cards are oral solicitations and as such can
only be prohibited during actual worktime. Respondent's
rule 13 goes too far.5 Accordingly, in that Respondent's
rule 13 prohibits solicitation by employees in work areas
without designation of special purposes (nor found in the
record) such as maintenance of order, discipline, safety,
or quality of production, I find the rule too restrictive of
oral solicitations and invalid on its face. It follows that
any enforcement of the rule, such as reprimands to em-
ployees guilty of solicitations would be unlawful, ab
initio, whether discriminatorily motivated or not, and I
so find.
As indicated earlier, Respondent has an additional rule
14, which combines prohibitions against solicitations of
Srtoddard-Quirk Manufacturing Co.. 138 NLRB 615 (1962).
signatures and distribution or posting of literature. 6 Al-
though not argued by Respondent as the basis for Imp-
son's conduct in removing the union literature from the
vending machines it would appear that the rule would
cover the situation. The record does show, undeniably,
that Dorough posted union literature on the vending ma-
chines and that Impson took that same literature down.
Whether Dorough posted the literature during actual
worktime is disputed, notwithstanding Impson's appraisal
of his rights as foreman to take down on company time
what was posted on company time. (An apparent affir-
mation of rule 14 as it relates to postings.) The factual
issue is brought into focus by Impson's statement that he
had no knowledge of who posted the material or when it
was posted.
The General Counsel contends that Impson's removal
of the union literature from one set of vending machines
while allowing antiunion literature to remain posted on
other sets of vending machines evinces a discriminatory
application of Respondent's no-solicitation rule.
Respondent argues that Impson's action does not in-
volve the Company's no-solicitation rule but rather in-
volves Respondent's right to prohibit the posting of
prounion literature on its premises. Contrary to Respond-
ent's argument, any exercise of such a broad prohibition
would not only require recitation authority but the pres-
ence of detailed and specific facts. See Republic Aviation
Corporation v. N.L.R.B., 324 U.S. 793 (1945); N.L.R.B.
v. The Babcock & Wilcox Company, 351 U.S. 105 (1956);
and N.L.R.B. v. United Steelworkers of America. CIO
[Nutone, Inc.], 357 U.S. 357 (1958). Respondent further
argues that this is not a case of the employer denying
prounion employees access to a preexisting communica-
tion medium provided by the Company for employees'
personal use. Respondent states, admittedly, it has not
provided bulletin boards for the posting of employee
communications. The evidence discloses the contrary of
Respondent's arguments and statements of fact. The em-
ployees do post personal notices on the vending ma-
chines in Dorough's department and Impson leaves them
posted for a reasonable time before removing them. Offi-
cial company notices are posted on the same machines
and when the required time has elapsed Impson removes
them. Although Respondent claims that any notice must
have approval to be posted the evidence shows that only
the unapproved union literature was removed by the
Company. Impson himself later posted a "Company loy-
alty notice" which was not approved in accordance with
Respondent's policy of postings on the same vending ma-
chines. Respondent claims that Impson, an admitted su-
pervisor and agent, had the authority and right to do so.
Apparently, without regard to its policies of posting
since Impson did not have management approval to post
the notice.
Respondent's argument that the notice posted by
Impson was protected by Section 8(c) of the Act re-
quires little consideration. It should be abundantly clear
I base my conclusion that rule 14 is a combination proscription on
the use of the words: initialing, signing, and petitions. As those words are
normally understood an employee would include his solicitations of union
authorization cards within the proscriptions
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a discriminatory application of an otherwise valid
no-solicitation or no-distribution rule seldom requires an
unfair labor practice violation finding based upon the
substance of any literature in question.
The record also shows that the vending machines are
in a nonwork area of Respondent's plant and are fre-
quented by employees at any and all times of the shift.
There are no paid breaktimes in Dorough's department.
The employees are free to use the vending machines at
their leisure, within reason.
I conclude that Respondent's rule 14 governs the dis-
tribution and posting of literature by employees in con-
junction with the oral rule requiring proper authoriza-
tion. I base this conclusion upon the testimony of super-
visors, Respondent's exhibits, arguments in Respondent's
brief, and the record as a whole.
I further conclude that rule 14 must meet the test for
no-solicitation rules as well as no-distribution rules. Ap-
plying both tests, I find that rule 14 is presumptively
valid relative to oral solicitations but invalid on its face
relative to distribution of literature. With regard to the
distribution of literature the rule is too broad in that it
conveys to employees a prohibition against distribution
of literature in nonworking areas without any special
purpose explicated. 7
Additionally, I find, in the absence of a factual dis-
pute,8 that Respondent applied the no-posting portion of
the rule discriminatorily by allowing personal notices of
employees and campaign literature of the Company to be
posted in the nonwork area of the vending machines but
disallowed the same privilege to prounion employees for
posting of union literature. The record does not contain
any evidence of a special purpose requiring rigid or strin-
gent rules against posting. Rather, the record shows the
contrary to be the case, at least in some departments of
the plant. E.g., the employees could post on company-
owned toolboxes so long as the display did not leave the
work area.
D. Threats and Surveillance
I. Billy Sanders testified that he attended the union
meeting of January 29 and received a union button for
his shirt. He wore the button approximately three times,
once the day after the meeting, but could not recall what
other days he wore it. On each occasion that he wore
the button on his shirt, he also wore a jacket over his
shirt because it was winter time and the carrier line was
cold. On February 3 he and his foreman, Wilkerson,
were discussing production and the fact that Sanders
needed to improve his production. Wilkerson informed
Sanders that he would have to produce 100 parts per
7 Stoddard-Quirk Manufacturing Co., supra. Additionally, Burgess testi-
fied that employee Noble Jackson sought to distribute some campaign lit-
erature and Burgess only reply was that he could not authorize it. Bur-
gess denied knowing the literature was antiunion but I discredit his
denial. He could only determine authorization or not if he first knew
what the literature contained. Further I find Chipman's denial of any dis-
tribution of literature in the plant too broad and all encompassing to be
probative of the Jackson incident testified to by Wagnon.
I There is no dispute as to what literature was posted and remained
posted and what literature was removed from posting by Respondent.
Pierce's testimony that he saw Impson remove union literature from the
coke machine and leave nonunion literature intact is not controverted.
hour on the spot welder so that the carrier line could
produce enough for 25 boxes. Sanders testified that at
some point during the conversation he asked Wilkerson
why he was coming down on him so hard and Wilkerson
responded, "There's the clock, there's the door. You are
going to be voting at teamsters." Wilkerson stood there
for a while and said, "Are you going to go or stay."
Sanders said he would stay and Wilkerson walked off.
The conversation took place around the spot welder but
no one else was there at this time.
Each member of the six-member carrier production
line testified but only Mayo states that she heard the
conversation. The other employees stated that the de-
partment is too noisy to hear unless you are very close.
Mayo testified, "He [Wilkerson] came over and said he
wanted us to get out 102 a day and just not-not to
worry about the two. Just get out the 100. He asked
Billie and me, did we want to put in any overtime to get
more boxes out. And we said no, we was going to do 8
hours. So he [Wilkerson] got all up in Billie's face and
told him that he could hit the door and hit the clock an-
ytime he wanted to do since he had decided to go team-
sters." Mayo stated that Wilkerson just walked off and
left Billie standing there. Mayo also places Bob Ewing in
the conversation behind Sanders.
Wilkerson denied threatening to discharge Sanders for
being a teamster sympathizer and denied any knowledge
of Sanders' union activity.
Employees Montgomery, Ewing, Ross, Walker, and
Tanner testified that they did not see Sanders wear a
union button at work nor did he (Sanders) tell them he
was for the Union.
2. Loftis testified that he was interviewed for employ-
ment on March 13. Foreman Whitwell took him to his
work station and explained what the job would be.
While walking down an aisle in the electric building,
Whitwell said, "Since James Dorough was pushing for
the union, that he probably wouldn't be with the Compa-
ny much longer." Whitwell also said, "Dorough would
probably approach me about the Union." Whitwell did
not say anymore about the Union. No one else was
around to hear the conversation between Loftis and
Whitwell.
Whitwell testified that while touring the building with
Loftis at hiring time, he told Loftis, "There is a union.
The teamsters are trying to organize the Company and
your [sic] going to be working with one of their more
active organizers. He [Loftis] said, 'Well, maybe I better
not even take the job then.' I said, 'Well, I don't think it
will make any difference because [they're] going to have
an election before you're here three months and you
won't even be eligible to vote.' So he said, 'It'd be all
right then.' .. . I told him the Company didn't want a
union. Didn't think we needed one." Whitwell denied
that he told Loftis that since Dorough was pushing the
Union he probably wouldn't be with the Company much
longer.
Analysis and Conclusions
The General Counsel alleges that Foreman Wilkerson
threatened an employee with discharge if said employee
MARATHON LETOURNEAU COMPANY 359
continued support of the Union. The allegation to be
supported must include proof of Sanders' union activity
and Wilkerson's knowledge of such union activity at the
time the threat was uttered. The evidence relied upon by
the General Counsel to support the utterance of a threat
occurred in a conversation between Wilkerson and em-
ployee Sanders during shift when no one else was
around. The conversation admittedly was bottomed on
increasing the production quota of the carrier line em-
ployees to 100 parts an hour, representing a change from
75 parts an hour. The record shows that similar conver-
sations took place between Wilkerson and line employees
on several occasions.
The General Counsel offered Mayo, who sometimes
worked on the spot welder with Sanders, to corroborate
the alleged threat by Wilkerson. Mayo recalled the con-
versation and the threat but places it around February 5
or 6, after Sanders returned to the spot welder from the
automatic welder and includes the presence of a third
employee. It also appears that Mayo's version postdates
the time study executed on February 13. (See sec.
III,E, ,d, infra. )
Employee witnesses for both parties stated that con-
versations can only be heard during work if people are
close to each other and one witness stated you must ac-
tually be facing your conversationalist.
I was not impressed by Sanders' demeanor on the
stand. He was surly at times and indifferent at other
times. Throughout his stint on the stand he appeared
dedicated to bolstering his case rather than attempting to
recall the events. Albeit I do not discredit all his testimo-
ny, I do discredit his testimony on his wearing a union
button where it was visible to Wilkerson. If, in fact, he
wore a button, it was not seen by his coworkers, includ-
ing Mayo. It is highly unlikely that Wilkerson could see
a union button on Sanders when his coworkers could
not. Sanders did not recall any specific instances where
anyone saw or could have seen him wearing the union
button. I therefore conclude that Wilkerson did not
know of Sanders' single union activity on February 3 or
any other time. I also discredit Sanders' testimony of the
threat to the extent that he stated that Wilkerson made
reference to the teamsters. I credit Sanders' recall of the
general conversation on production quota and conclude
that Sanders did take issue with the increase and Wilker-
son then told him if he didn't like the amount expected
of him, "there's the clock and there's the door. " g Other-
wise the remainder of the conversation as stated by
Sanders makes no sense at all. I further credit Sanders
that the conversation took place on February 3 when no
one else was around. Mayo correctly recalled one of the
several conversations that Wilkerson had with the em-
ployees about increasing production but I discredit her
testimony on the threat she says she overheard. Her testi-
mony is contrary to Sanders and the other employees on
the line. She could not have overheard what Sanders
thought to be a conversation between he and Wilkerson
only because of the noise in the department. When Wil-
kerson wanted to talk to the whole line about increasing
g Mayo credibly testified that from the day she was employed Wilker-
son criticized Sanders daily for working too slow and not getting produc.
tion.
production he took everyone outside rather than risk
them not understanding his message. Also Mayo's de-
meanor left something to be desired. She was very
guarded in her responses and appeared more intent on
tailoring her testimony rather than telling it all. Addi-
tionally, the record objectively shows one of the produc-
tion conversations among Wilkerson, Sanders, and Mayo
did take place on February 7, the day Sanders returned
to the spot welder to work with Mayo. I find that Mayo
fabricated the threat testimony in an attempt to help
Sanders' case.
Accordingly, I find that Wilkerson did not threaten
Sanders with discharge for continuing to support the
Union. I also find that Wilkerson did not have knowl-
edge of Sanders' union activity on February 3 or at any
other time. I base this finding upon the lack of credible
evidence of Sanders' union activity or other evidence
from which knowledge could be inferred.
In paragraph 7) of the complaint, the General Coun-
sel alleges that one employee was warned that another
employee who was active for the Union would be termi-
nated. I have considered the allegation as a threat to the
employee receiving the warning. This alleged threat and
allegation of an impression of surveillance involve Fore-
man Whitwell. Employee Loftis was an impressive wit-
ness testifying in a clear and decisive manner. I credit his
testimony. With Whitwell's admission of what he said to
Loftis, the message becomes clear. If you do what Dor-
ough is doing your job will not last. The fact that Loftis
was a new employee, there for his first day, makes the
threat more impressionable as an infringement of Section
7 rights. Whitwell's version of the conversation shows
the initial reservation Loftis had in his mind about stay-
ing on the job. Whitwell denied the language of the
threat attributed to him but did so unconvincingly. His
denial was simply a "No." Further the context of
Whitwell's admitted conversation with Loftis shows an-
tiunionism as a policy of the Company and it was initiat-
ed by Whitwell with the disclosure Whitwell's denial of
the threat, I conclude that Whitwell was purposefully at-
tempting to influence the exercise of Section 7 rights of a
newly hired employee. Therefore, I find that Whitwell
did threaten Loftis with termination if he engaged in
union activity. I do not, however, conclude nor find that
Whitwell's disclosure to Loftis of Dorough's union lead-
ership creates an impression of surveillance. The circum-
stances of this case are unlike the case cited by the Gen-
eral Counsel in his brief.to In the instant case the em-
ployee identified (Dorough) is well known as a union ac-
tivist due to his notorious activity in behalf of the Union.
The lack of common knowledge of the plant in a new
employee does not change the character of that which is
common to employees. To state it another way, what
Whitwell told Loftis about Dorough's union activity was
not something secretive from most but well known to all.
Therefore, the source could hardly be surveillance. I
view this kind of colloquy in much the same fashion as
the Board views questioning known union activists by
supervisors during a union campaign. Such questioning is
'o Redwing Carriers. Inc., 224 NLRB 530 (1976).
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not, per se, coercive interrogation in violation of the
Act. '
E. Discrimination
1. Discharges
a. Albert Beall
Beall's discharge is alleged as caused in whole or in
part by his union activity which was known to manage-
ment. The testimony of his union activity and Respond-
ent's knowledge thereof was considered earlier in this
decision. 2 Having found Beall's union activity to be of
the very weak variety and Respondent not to have
knowledge of Beall's activity, as it is, I find it unneces-
sary to consider the cause for Beall's discharge. The
Board is limited to determining whether there was a dis-
criminative motive behind an employee's discharge and
not the reasonableness of the employer's reasons for the
discharge. In fact, the Board may disagree with the em-
ployer's reasons for discharge but absent a finding of dis-
criminatory motivation the discharge stands. See
N.L.R.B. v. The Consolidated Diesel Electric Co., Division
of Condec Corp., 469 F.2d 1016 (4th Cir. 1972). The em-
ployer always is permitted to discharge the inefficient
and disobedient. Martel Mills Corporation v. N.L.R.B.,
114 F.2d 624 (4th Cir. 1940). Additionally, the record is
void of any evidence (other than Beall's own testimony)
from which an illegal motive for Beall's discharge could
be inferred. Assuming some reader of the record may be
satisfied that Beall engaged in sufficient union activity,
he also engaged in conduct warranting discharge and the
discharge cannot be held unlawful simply on the basis of
some union activity.' 3 Beall's version of why he did not
go to the oven when asked by Turner is unbelievable.
The objective evidence in the record shows different
work tasks than that testified to by Beall. Additionally,
Beall's appraisals of the time required to complete the
single task in progress when Turner told him to go to
the oven are too far apart. It appears that even if Beall's
greatest time were considered in conjunction with the
time of the request that Beall would have had some
work in the oven. My determination of the events of that
night include crediting Turner's testimony that Beall re-
sponded to the request suggesting that the Company hire
new men if more are needed in the oven. I also discredit
Beall's testimony that he spent the remainder of the night
on the same motor, thereby eliminating any time in
which to work in the oven as requested by Turner.
Beall's demeanor in this instance was no more impressive
than before. (See fn. 9.) I conclude that Beall refused to
go to the oven as instructed by Turner and when Beall
appeared several days later (Beall talked to Fox in New-
land's presence, dressed in street clothes, not work
clothes) Respondent discharged him for the prior refusal.
Accordingly, I find Respondent has not violated the Act
in the discharge of Beall. 4
I' Flight Safety, Inc., 197 NLRB 223 (1972).
1' Sec. 111, A, 2, b, supra.
'L Klate Holt Company, 161 NLRB 1606 (1966).
14 Albeit Respondent argued and elicited testimony that all discharges
are not final when the supervisor issues a stop card, the influence that
b. Howard Young, Ulysses Wagnon, and Roger Doss
Young, Wagnon, and Doss are classified as warehouse-
men in the production stores department which is super-
vised by John Burgess. Approximately 19 warehousemen
work in production stores with several assigned to an
evening shift. Each warehouseman functions as a parts
retriever and parts supplies filler. The department also
ships and receives whatever it handles. The usual shift
time is 7 a.m. to 3:30 p.m. and each warehouseman has a
key to the department which remains locked from the
rest of the plant as a security measure. Breaktimes for all
warehousemen are paid time but are not scheduled. Em-
ployees are free to take a break at their leisure. Employ-
ees clock in at the main gate where a bank of four to six
timeclocks are located. A work whistle which signifies
the start of shift blows at 7 a.m.
Young testified that he attended the first union meet-
ing on November 17, 1977, and thereafter handed out
union handbills and solicited union authorization cards
for signatures. In addition he wore union buttons on his
clothing when they became available. During the course
of his employment he was absent and tardy on occasion
for sickness, personal business, and to finalize his di-
vorce. He was counseled by Burgess in September and
November 1977 about his absences. Burgess told him on
each occasion he had too many absences including those
which were taken by permission. In addition, when
Young was also tardy on occasion, Burgess reminded
him that he was supposed to be at his work station when
the whistle blew. On January 18 Burgess held a special
meeting to discuss the incidence of tardiness and ab-
sences and told the employees to shape up because it was
having an effect on production. The following 2 days
Young was absent due to ice, cold weather effect on his
car, and sickness. He called the plant in accord with the
rule to report absences but was only able to speak to the
shipper in the back of the department. The following day
he was not able to reach Burgess or the department by
phone so he spoke only to the guard. He reported for
work the following Monday and at the end of the
weekly safety meeting Burgess asked what his reasons
for the absences were. Young said he was sick and Bur-
gess asked if he had seen a doctor. Young told him he
had not and Burgess told Young that his services were
no longer needed. Burgess told him to report to person-
nel and Young did so to process his termination.
Wagnon's testimony of his union activity is treated
earlier in this decision." Wagnon also testified that each
morning when he clocked in he could choose a clock
with an earlier time than the others because the clocks
were not synchronized with each other. Some employ-
ees, on occasion, would do this to show a time earlier
than their actual arrival. In spite of such a choice,
Wagnon stated that he was late on several occasions.
Sometimes on Monday we would be late for the weekly
safety meeting as well. He knew when he was late by
Stahl, assistant personnel manager, has on the prior determination of the
supervisor in some cases appears minimal, if any influence exists at all. I
have therefore treated all discharges related to Stahl as effective upon is-
suance of the stop card from the supervisor.
x' Sec. Ill,A,I; 2,a; ,2; and C,I, supra.
MARATHON LETOURNEAU COMPANY 361
the blowing of the whistle. Burgess required the ware-
housemen to be in the department when the whistle
blew. Wagnon did not know what timeclock the whistle
was synchronized with. Some employees, including
Wagnon, also utilized the nonsynchronized timeclocks to
check out at the end of the shift. By choosing the clock
with the latest time, each could actually check out sever-
al minutes early. In addition to his tardies Wagnon had
several absences each month. Wagnon was counseled by
Burgess several times in late 1977 about his tardiness and
again in January 1978. Each time Burgess warned
Wagnon that he could be discharged for continued tardi-
ness. Burgess continued the work station rule for tardy
as determined by the whistle after counseling Wagnon.
Burgess began keeping a time book on lateness in the
early part of 1978 and recorded the names of employees
who were late. On February 10 about 10:15 a.m. Burgess
told Wagnon he was fired for being late too many times.
Burgess instructed Wagnon to go to personnel to get his
check and turn his badge in. Wagnon proceeded to per-
sonnel as directed.
Doss testified that when he first started his employ-
ment in September 1977 Burgess suggested he ride with
Wagnon since they both lived in the same town. Doss
did talk to Wagnon and rode to work each day with
him. In November 1977 Doss attended the first union
meeting and the next day signed a union card. In Janu-
ary and February he handbilled union literature at the
main gate where the timeclocks were and wore a union
button on the outside of his work jacket. On at least one
occasion when he wore the union button, Burgess en-
gaged him in conversation and saw the button. During
the course of his employment he was absent or late on
several occasions. He had been told by Burgess that to
be to work on time the store employees had to be in the
department when the whistle blew. Doss stated that the
timeclocks at the main gate all had different times. The
clock by his card rack was as much as 15 minutes differ-
ent than other clocks at the gate. Most of the time he
used the clock by his card rack although the clocks are
not designated for any particular department. On Janu-
ary 29 he was late and Burgess counseled him in the de-
partment office. Burgess told Doss that he had been late
before and should make an effort to get to work on time.
Burgess suggested to Doss that the next time he reported
late to tell him and explain to him rather than have Bur-
gess find out for himself. About a week later Burgess
also counseled Doss on leaving early for lunch. Doss
stated that he was late about 20 minutes on February 8
and reported to Burgess that a wreck had occurred on
the interstate due to ice on the bridge and that's why he
was late. Burgess replied that it was okay. On February
10 while Doss was searching for Burgess to discuss the
movement of some parts he saw Wagnon walking down
the aisle toward him with Burgess about 15 feet behind.
As Wagnon passed he said, "They got me." Burgess
walked up to Doss and asked for the department keys
and told Doss to fill out his timecard, go to personnel,
turn in his badge, and get his check. Burgess said they
were letting him go for excessive tardiness. Doss pro-
ceeded to personnel as instructed.
Foreman Burgess testified that the company policy has
always been that an employee must be in his department
at the start of shift. The usual starting time is 7 a.m. Al-
though Burgess never considered it a problem he did
have employees who were tardy. He always told em-
ployees that they should be in the department when the
whistle blew. If he did not see an employee in the de-
partment when the whistle blew he considered them late.
In some cases Burgess would write up the employee and
in others he would not. In the situation where the em-
ployee was written up, Burgess stated he would tell the
employee he was to be written up and then would actu-
ally write up the employee later. There were occasions
when Burgess used the writeup as a threat and never ac-
tually did it. In any event an employee never saw the
writeup itself. In December 1977, his superior, Samuel
Moore, production control manager, began requesting
more production from the stores department and met
with Burgess to implement the increase. The usual pro-
duction quota of L-800 front-end loaders was four a
month but Moore was wanting eight a month. Burgess
suggested hiring more employees to offset the absences
in his department but Moore was not satisfied that new
employees were the answer. Moore told Burgess to get a
program started to eliminate the absences and tardies,
and new employees would not be needed. Moore said he
would be monitoring the program. Burgess began keep-
ing book on employees who were tardy in addition to his
usual work hours log on each employee. He continued
his rule of using the whistle as a yardstick. If an employ-
ee clocked in at 7 a.m. Burgess did not automatically
mark him tardy. An employee was only marked tardy if
he was not in the department when the whistle blew and
Burgess was aware of it. Burgess stated that Moore did
not see tardies that way. In addition if Burgess asked a
man to come in early, e.g., at 6 a.m., and the man arrived
after 6 a.m., he did not mark him tardy because the earli-
er hour was not routine. Moore did not view the early
hour exception as Burgess did.
On January 18 Burgess held a special meeting of his
department and told the employees that the absences and
tardies needed to improve because the department was
faced with a higher production quota. He did not explain
the company rule on absences and tardies with regard to
what was an excess. Burgess himself did not have any
standards to determine what was excessive nor did he
know of any rule respecting the number of writeups an
employee must receive before discharge or a number of
writeups that would dictate discharge. He continued the
use of the whistle as the measure for tardy and told em-
ployees he would continue to write them up for tardies.
Burgess also told the employees that Moore would be
checking the employees' progress. Employees Wagnon,
Doss, Temple, Swaner, and Bradford had been written
up and counseled on several occasions since late 1977.
Howard Young had been written up and counseled by
Burgess for absences in September and November 1977.
He was present at the January 18 meeting, on Wednes-
day, and was absent the next 2 days. Burgess stated that
Young had called in to report the absences on the second
day about 8:30 a.m., but had not called in the first day.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burgess told Moore that he had decided to discharge
Young and Moore agreed. Burgess stated that the dis-
charge was for excessive absences but at the time he did
not know the total absences Young had accumulated. He
only knew he had been absent. When Young returned on
Monday, January 23, Burgess talked to him after the
safety meeting. He asked Young why he had been
absent. Young said he was sick and Burgess asked if he
went to the doctor. Young replied he had not seen a
doctor and Burgess then told Young that his services
were no longer needed. Burgess told Young to report to
personnel. Young's termination report shows the reason
for discharge was "excessive absences."
Burgess further testified that on the morning of Febru-
ary 10, Moore called him and told him to terminate
Wagnon and Doss for excessive tardiness. Burgess found
Wagnon first and told him that he was being discharged
for excessive tardiness and to report to personnel. Bur-
gess later found Doss and told him essentially the same
thing. Burgess stated that Moore made the decision to
discharge in each case. Burgess was the one to imple-
ment it by Moore's instructions. Burgess did not know if
either discharge was within the Company rule of tardi-
ness but he did know that Moore's rule of when someone
was tardy was different from his. Burgess also stated that
Wagnon stopped for coffee each morning before starting
work no matter what time he clocked in. Burgess denied
any knowledge of union activity on the part of Doss and
Young but acknowledged union activity by Wagnon as
of February 1. Burgess also professed ignorance of the
lack of synchronization of the timeclocks at the main
gate.
Production Control Manager Moore testified that he
was aware of an absence problem in late 1977 in the pro-
duction stores department because Burgess was consist-
ently asking to hire new people to offset the absences. At
this same time the production of the stores department
has an annual increase due to end-of-year catchup re-
quired to fill customers pending orders. As a result of the
absence problems, Moore decided to investigate the inci-
dence in the stores department. In January he accumulat-
ed the timecards for all employees in stores for Novem-
ber and December 1977. He charted the absences day by
day. As he reviewed the timecards he became aware of a
tardiness problem as well. Moore used the punch in time
as a yardstick for tardiness. Any employee whose time-
card showed a punch-in at 7 a.m., or later, was charted
as tardy. Moore stated that the company rule was all em-
ployees should be in their department at 7 a.m. so any
man not clocking in before 7 a.m. could not be in his de-
partment when the shift started. Moore did not know
whether or not the timeclocks were synchronized nor
did he know of any rule whereby an employee was not
tardy if he was in his department when the whistle blew.
Moreover, even if he had known that the timeclocks
were not synchronized, such knowledge would not have
changed his determination based upon his chart of ab-
sences and tardiness. Moore admitted that the timeclocks
were replaced with a new system in mid-1978. Moore
also knew the company had a whistle but he did not
consider the whistle in determining tardiness. Moore de-
cided that Burgess was being lax in enforcing the compa-
ny policies on absences and tardiness, and confronted
Burgess about January 17 or 18. He told Burgess to meet
with his people and get it straightened out. Moore told
Burgess to get his people to work on time or get some-
one else. Moore stated that he devised the rule of three
in January and told Burgess of the rule when he met
with him on January 17 or 18. The rule simply stated is:
"any employee accumulating a total of three, whether
absences or tardies, in any month (twenty working days)
would be guilty of grossly excessive absences or tardies
or both." Moore did not tell Burgess to inform the em-
ployees of the new rule nor did he inform any employees
of the new rule. Moore continued charting the employ-
ees in January and February as he did in November and
December 1977.
As a result of his chart, Moore found three employees
to be excessively tardy, Bradford, Wagnon, and Doss.
On February 10 he informed Burgess to terminate the
three due to their excessive tardiness. Burgess did so in
the case of Wagnon and Doss, but in Bradford's case did
not do so immediately because Bradford was on the
night shift and could not be replaced. Moore did not tell
Burgess to terminate Temple or Swaner, two employees
who also satisfied Moore's rule of three, but they were
disciplined. Swaner was written up for tardiness at some
time and Temple was suspended for several days in July
for excessive tardiness. Moore stated that Temple was
treated differently than Wagnon and Doss because he
had 16 years with the Company. As an older employee
he was more valuable to the Company. In contrast,
Moore stated that Doss had only been with the Compa-
ny 4-1/2 months.
Moore admitted knowledge of Wagnon's union activi-
ty dating from the no-solicitation writeup Wagnon re-
ceived and stated that Burgess reported to him the very
day Wagnon came to work wearing a union button. In
addition, Moore acknowledged the union activity among
employees in the plant in December 1977. Moore, how-
ever, denied knowledge of any union activity on the part
of Doss or Young. When asked if he had any knowledge
of Young's union activity, Moore responded, "I doubt
seriously if Howard Young even knew who I was."
Moore added, in response to counsel, that Young could
have been terminated for excessive tardiness in addition
to excessive absences.
Analysis and Conclusions
The General Counsel presented evidence that Young,
Wagnon, and Doss were discharged in circumstances
evincing disparate treatment of employees. The record
also shows that each was engaged in union activity prior
to and at the time of discharge and that Respondent
knew, or should have known, of the union activity.
Thus, the General Counsel has presented a prima facie
case of discharge for unlawful reasons. This does not
carry the day for the General Counsel however, for Re-
spondent can overcome the prima facie case by a prepon-
derance of competent, credible, rebutting evidence.
Respondent has offered such rebutting evidence and
argument, but, for the reasons stated below, I find it has
not sustained its burden of persuasion.
MARATHON LETOURNEAU COMPANY 363
Respondent, in its brief, cites several circuit court
cases to support its argument.' 6 In summary, Respond-
ent argues that where an employee has engaged in con-
duct for which he would have been fired in any event,
there is no room for discrimination to play a part. In fur-
ther support of its argument, Respondent cites Klate Holt
Company, 161 NLRB 1606 (1966). Suffice it for me to
observe that the court in Frosty stated, "The inquiry
must be made even where the discharged employee has
done something that might warrant his discharge, since if
it is something that the employer might pass over in an-
other instance the firing of the union employee can be
discriminatory." Additionally, as I read the Board's hold-
ing in Klate, the Board is saying that a discharge cannot
be found unlawful by merely showing that the employee
engaged in union activity. (See sec. III,E, ,a.) Respondent
also argues that Whitfield stands for the proposition that
the supervisor who actually makes the decision to dis-
charge an employee must have direct knowledge of the
employee's union activity for a discriminatory motive to
be found. In fact, the court in Whitfield stated that the
Board, after brushing aside denials of knowledge of
union activity by higher echelon supervisors, failed to
point to direct evidence showing knowledge. I accept
Respondent's argument that knowledge of union activity
is not to be lightly inferred but I reject the argument that
direct evidence of knowledge, corroborated by credible
witnesses, is required to show knowledge. It was long
ago established that circumstantial evidence may supply
the predicate for a finding of knowledge. 1 7The Supreme
Court held, in part, "The Board was justified in relying
on circumstantial evidence of discrimination and was not
required to deny relief because there was no direct evi-
dence that the employer knew these men had joined
Amalgamated .... " Court acceptance of Board reli-
ance upon circumstances surrounding an alleged discrim-
inatory discharge has followed through the years. See,
e.g., Fred Stark, et al., 525 F.2d 422, fn. 8 (2d Cir. 1975).
To bring the three discharges into focus, I must reject
an additional argument of Respondent and invalidate as
not probative of the issue, a portion of Respondent's evi-
dence dealing with the discharges. First, Respondent
argued that Wagnon and Doss were discharged for ex-
cessive absences and excessive tardinesses as a dual
cause. Respondent's exhibits in the record as well as the
testimony of Respondent's own witnesses establish con-
clusively that Wagnon and Doss were discharged solely
for excessive tardiness. Secondly, Respondent offered, in
defense of Young's discharge, evidence of work habits
not related to absences, notwithstanding the sole reason
assigned for Young's discharge was excessive absences.
My determination will be based upon the assigned rea-
sons for discharge and any consideration of the extrane-
ous material will be to fill in the totality of the circum-
stances surrounding the discharges."'
i' Frosty Morn Mearts Inc. v. L.R.B., 296 F.2d 617 (5th Cir. 1961);
N.L.R.B. v. Whitfield Pickle Company, 374 F.2d 576 (5th Cir 1967).
Albeit not exhaustive, these cases are representative
'7 N.L.R.B. v. Link-Belt Company, 311 U.S. 584 (1941)
in The record facts relied upon are basically undisputed
The evidence in support of the assigned reasons for
the discharges of Young, Wagnon, and Doss shows that
Respondent had a very general rule on absences and tar-
diness which was not enforced to any degree until short-
ly after the union activity began in November 1977. Con-
trary to Respondent's contentions the Company only
considered absence and tardiness as serious offenses after
January when the excesses of each were defined by Pro-
duction Control Manager Moore, as a total of three (but
not for publication to employees) and subsequently used
as the basis for the ultimate discipline in one department
of the plant. Such a rule of excess absences or tardiness
was not promulgated throughout the plant nor imple-
mented in other than the central stores department.' 9
The published rules do indicate that discharge could
result from infractions but the evidence shows the prac-
tice under the rules to be one of tolerance rather than
discipline. Indeed, the record shows that tolerance was a
practice after the rule of three, at least for certain em-
ployees other than the discriminatees. Viewing the chart
originated by Moore, one sees Temple, Swaner, Jackson,
Bradford, McLain, and Holiday as grossly excessive (in
Moore's phraseology) but minimal discipline, if any, for
the infractions. Respondent admitted that Temple and
Swaner were treated differently because of their longev-
ity with the Company and offered testimony to show
that Bradford was subsequently discharged albeit the de-
cision to discharge was made contemporaneously with
that of Wagnon and Doss. The expressed reason for
delay in Bradford's case was that he could not be imme-
diately replaced. The record is silent as to why he could
not be replaced. If one speculates that the increased pro-
duction supplies the "why" then the question becomes
"why not" the same for Wagnon and Doss. There is
nothing to explain the preferred treatment of Jackson
and McLain. Respondent did proffer an exhibit to show
that before the discharges and after the discharges, em-
ployees throughout the plant were terminated for the
same reasons, i.e., excessive absences and excessive tardi-
ness. 20 There is no evidence, however, that the defined
rule of excessive absence and tardiness devised by Moore
was applied to any of the employees other than Wagnon,
Doss, and Young. The record does show that Burgess,
who was responsible for Young's discharge, did not
know the number of absences Young had when the de-
termination to discharge was made nor did he know
whether the company rule was followed in the dis-
charge. It is apparent from Moore's chart that the com-
pany rule was not followed for McLain, Jackson,
Swaner, and Holiday who had the same or more ab-
sences, consecutive or not, as Young. As Moore stated,
Swaner was straightened out now, apparently without need
of discipline. Burgess expressed indignance that Young
should miss the two days following his special meeting
Ia In Foreman Alford's department a man was not tardy if he made up
the time and totaled 8 hours for the day. A check of the imecards in
central stores department to ascertain the checkout time of employees
could lead one to the same conclusion
20 Resp. Exh. 114. I rejected the exhibit and upon motion of counsel, I
placed the exhibit in the rejected exhibit file. In view of counsel's refer-
ence in brief to my ruling I have reconsidered the proffer and reaffirm
my ruling
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to impress on employees the need for regular attendance.
He failed to explain however his lack of ire for Bradford
who missed the following day, Doss who missed the fol-
lowing day, Jackson who missed the day of the meeting
and the 2 days following, McLain who missed the
second day following, Swaner who missed the 2 days
following, and Wagnon who missed the day following.
This is the same Jackson who twice was seen distributing
antiunion literature by Wagnon and to whom Burgess
could not give authorization for distribution of literature.
(Compare the discipline in Alford's department exempli-
fied by only a writeup to Richard Wade for missing 2
consecutive days without calling in to report.) I'm con-
strained to assess no more importance to the day of the
meeting and the 2 days following than Burgess or Moore
did as shown by the lack of discipline to all negligent
employees. The impotency of the meeting is further es-
tablished by the lack of communication to the employees
of the newly established rule of three by which they
could be discharged (and were) contrary to the past
practice.
The new rule must suffer additional criticism because
of the method by which employees were determined to
be tardy. Burgess, rather than change his practice of
using the whistle to measure tardiness, affirmed to the
employees the continuation of the practice of being at
their work station when the whistle blows. Moore in
charting the employees disregarded the whistle entirely
and evaluated tardiness by the clock stamp on each em-
ployee's timecard. The uncontroverted testimony of
Wagnon and Doss relative to the non-synchronization of
the timeclocks at the main gate places a strain on
Moore's use of the chart for any purpose and particular-
ly to discharge some employees for the incidence of tar-
diness it shows. In my view, Moore removed all doubt
of the chart when he stated that had he known the
clocks were not synchronized, he would have made the
same determinations. The record is clear that subsequent
to the discharges of Wagnon and Doss the Company in-
stalled a new semplex system with a master clock to re-
place the disputed timeclocks. 2 '
I conclude that the reasons assigned by Respondent
for the discharges of Wagnon, Doss, and Young are sus-
pect based upon the proven disparity and thereby fail the
test as just cause.
There is, however, evidence that the motivating factor
for the disputed discharges was the effect that the de-
partmental absences and tardies was having on produc-
tion. Moore testified that the end-of-year normal was to
increase production, to fill by year's end all pending
orders. Burgess testified that Moore placed a burden on
the department to double production from four loaders
to eight loaders per month. Moore's version would have
passed by years end 1977 and admittedly Moore did not
investigate the punctuality of the department until Janu-
ary. Burgess' version would have continued into 1978
z' Director of Industrial Relations Bellatti testified that the timeclocks
in use during 1977 and through June 1978 were individually set by main-
tenance. When complaints were lodged respecting the lack of synchroni-
zation of the various clocks, maintenance would reset each clock manual-
ly. The whistle likewise was manually set. The new semplex clocks are
computerized and reset themselves and the whistle from a master clock.
causing considerable consternation for any and all fail-
ings of punctuality, particulary in view of Moore's denial
of Burgess' repeated request for additional employees on
the payroll. The transparency of either version is appar-
ent from the preceding discussion of the means and
manner of effectuating the disputed discharges. I find the
assigned motivation completely unacceptable not only
due to the critical conflict between Respondent's princi-
pal witnesses but as a completely implausible explanation
for Respondent's actions. If Respondent felt that ab-
sences and tardies were serious and were in fact effecting
production in January and February to an extent that a
more definitive rule was necessary, such a change would
have been plantwide not limited to the stores department
(most departments work on the L-800 loader and each
have pending orders to process), and most importantly
communicated explicitly to the very employees needing
to improve both their production and punctuality. There-
fore the real motivation must be found somewhere
else. 22
Respondent argues that Moore had no knowledge of
union activity by Wagnon, Doss, or Young, and Burgess
had no knowledge of union activity by Young. Moore
not only admitted he knew of Wagnon's breach of the
no-solicitation rule but also that Burgess immediately
upon seeing Wagnon display a union button reported the
fact to him. Doss and Young credibly testified to display-
ing union buttons and handbilling employees at the main
gate. Both Moore and Burgess knew of the union activi-
ty by employees in late 1977 particularly the handbilling.
Although Moore doubts that Young knows who he is
that does not gainsay Moore knowing who Young is.
Moore spends enough time in the department to see em-
ployees, that he recognizes as stores employees, goofing
off during working hours. Doss' testimony that Burgess
saw his union buttons is well supported by the use of
buttons by employees and the closeness in which the
stores employees work in the department plus the circu-
lation some employees get driving the scooter through-
out the plant. Further, notwithstanding that Respondent
denies knowledge of union activity by Moore and Bur-
gess relative to Doss, Young, and Wagnon, Respondent
argues its knowledge of Bradford's lack of union activity.
Knowledge of lack of union activity emanates from the
same source as knowledge of union activity. I conclude
that Moore and Burgess had knowledge of the union ac-
tivity of Wagnon, Doss, and Young prior to their respec-
tive discharges. Further, I conclude that the motivation
for their discharges was their union activity. I note par-
ticularly the absence of any substantial evidence to sup-
port any other motive advanced by Respondent. Re-
spondent's purported reasons are therefore pretextual.
Accordingly, I find that Respondent violated the Act by
discharging Wagnon, Doss, and Young. The testimony
of supervisors that Young could have been discharged
for excessive tardiness; that Young failed to report his
absences; that Young's excuses for his absences were not
sufficient; that Wagnon and Doss could just as well have
been discharged for excessive absences; that Doss was
12 Shattuck Denn Mining Corporation (Iron King Branch) v N.LR.B.,
362 F.2d 466, 470 (9th Cir. 19661
MARATHON LETOURNEAU COMPANY 365
written up the day after his discharge for a miniscule in-
cident which obviously occurred a day or more before
his discharge; that Young was written up after his dis-
charge apparently for facilitation of a possible theft
which may or may not have occurred within the last
month or so and which may or may not have been as-
signable to Young; and that Young was mistaken because
he actually engaged in union activity only 1 week before
his discharge is an attempt to shore up a defense that is
otherwise lacking substance and bolsters my conclusions
that the reasons for discharge were pretextual and that
Respondent's actual motivation was based upon demon-
strated union animus. 2 3
c. Richard Wade and Richard East
Wade has been employed by Respondent on four dif-
ferent occasions beginning in 1965 as a welder trainee.
Each employment term was as a welder. During the time
Wade worked under Alford (approximately the last 2
years) he did not receive any reprimands relating to his
work habits or how much time he spent conversing with
other employees. Wade testified that he, as well as
others, talked during the workday but Alford has not
disciplined anyone for talking too much.
Wade's union activity was examined earlier in this de-
cision but a portion bears repeating. 24 Wade testified
that he began wearing union buttons during work after
January 30. On at least one occasion, in February, Fore-
man Alford commented on Wade's union button. During
February the small parts fabrication department was
working 9-hour days beginning at 6 o'clock each morn-
ing but Wade exercised his option not to work the I
hour overtime each day. Wade started work each day at
7 a.m. On February 10 Wade arrived several minutes
before 7 a.m. When the whistle blew Alford came to his
work station at 7 a.m. and told him to have certain end
bells inspected and moved out of the department, then to
set up end bells for welding. Wade went to get an in-
spector and wrote up the move ticket for the end bells.
He waited in the office area for an inspector and several
minutes later the inspector arrived with Alford. The
three looked at the end bells and the inspector okayed
them for shipment. Wade then alerted the forklift driver
to bring an empty pallet and pick up the end bells just
inspected. East helped him get the end bells on the pallet
and told Wade they would be welding together. The
forklift came to pick up the end bells at 7:20 a.m. and
moved them out of the department. East then questioned
the amount of weld on one end bell he was to weld.
After inspecting the print and comparing it with the end
bells that needed welding, consuming approximately 5
minutes, they began getting their tools-and-jig setup.2 5
As Wade was getting his chipping gun out of his tool-
box, Alford came up and handed him a stop card. Alford
said, "1I am going to give you plenty of time to talk
23 I have not considered the General Counsel's argument or support-
ing tables appended o his brief relative to hours Aorked or hours paid
for the central stores employees No such issue is before me
24 See sec III1B.2.
2 Wade testified without contradiction that a new print had been re-
leased I week prior to his discharge which changed the amount of weld
needed on end bells and allowing for overlapped welds
about hot rods. I want you to put your correct name and
address on this stop card and give me the Company
equipment that you have got." Alford then turned
around to East. Wade tried to tell Alford that they were
not talking hot rods but were talking about the weld on
the end bells and the print. Alford walked away. Wade
gathered his personal belongings and left the plant.
Wade's stop card reads, "Fooling around too much can't
get started to work in the morning-warned several
times before about wasting time."
East has been employed since 1971 with several breaks
in tenure for various reasons. He has worked in the small
parts fabrication department since December 1974.
During 1975 when Alford's predecessor was foreman,
East received a reprimand and writeup for backtalk but
since that time he has not received any reprimands or
writeups. All employees in the department waste a cer-
tain amount of time, but Alford has never complained.
Alford has not disciplined East for any reason since
Alford became foreman. East, for one reason or another,
has seldom worked the hour overtime each day prefer-
ring to start work at 7 a.m. rather than 6 a.m.
East attended the first union meeting in November
1977 and signed an authorization card. The last week in
January he distributed handbills at the main gate be-
tween shifts and distributed authorization cards in the
plant. He also wore union insignia pasted to his welding
hood. Shortly after East displayed the union insignia on
his welding hood Alford told him that he was taking too
long in the morning to get his welder hooked up. Alford
stated that East was worrying too much about the union
and not enough about his job. Alford told East that he
had better straighten up and get more work done and
less talk about the union. This was the first time Alford
had said anything to him about his work, but thereafter
Alford would come by and complain about his work.
On February 10 East came in late. He clocked in at
7:07 a.m. Upon arriving at his work station he was met
by Alford who told him to weld end bells and that Wade
would set them up. About 7:15 a.m. Wade came to the
department to get some end bells moved. He helped
Wade get the pallet set up then talked with inspector
Charlie Winn and inspector-trainee Curtis Clark about
the end bells. East found three end bells under the pallet
which had been cracked and needed to be welded. The
material handler brought the forklift in and removed the
good end bells about 7:20 a.m. East questioned the
amount of weld needed and Wade showed him the print
disclosing approval of an overlap of the welds. Both he
and Wade began getting their tools together on the jig.
At this point Alford came over and gave Wade his stop
card and then came to East. Alford told East he was
going to give him and Wade all the time they wanted to
talk hot rods. East testified that Alford stated that he had
been a goof-off for the last 2 years. Alford gave East his
stop card and sent him to personnel. East's stop card
reads, "Can't get started to work in the morning has
been warned several times before about wasting produc-
tion time."
Alford testified that he had trouble in his department
keeping all the employees busy. There was a certain
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount of talking and visiting that went on depart-
mentwide. Alford stated that he has written up employ-
ees for talking too much and for not working when they
should be working and on occasion has not written up
employees. He has written up Wade and East for being
too slow starting in the morning and for being away
from their work station visiting. The latest writeup em-
phasized to both that if it happened again each would be
terminated. Alford said he showed each writeup to
Wade and East even though company policy did not re-
quire it. Although he did not write up either Wade or
East for taking too long on breaks, he stated that they
always got a soda and candy bar and talked. Alford ex-
plained that the breaks are neither scheduled nor timed
and each man can take a break when he is caught up.
Alford testified that he observed union insignia on
Wade's and East's work clothes about February 1.
Alford, on February 10, made the decision to dis-
charge Wade and East. He did not discuss the reasons
for the discharges with any employee or supervisor
before making the decision. He observed their conduct
himself and decided to discharge them. Alford had not
discharged any employee before for the same reasons he
discharged Wade and East. Both Wade and East were
discharged for not starting work on time and wasting
production time. Alford recalled the following:
When the whistle blew he told Wade to make out a
move ticket on some end bells and have them inspected
and moved out of the department. He also told Wade he
would be setting up end bells. At 7:15 a.m. he saw Wade
talking to different people in the department. Wade was
visiting with Herb Lovell, Red Rogers, and J. W.
Brooks. At 7:30 a.m. he saw Wade in his work area
standing by the heater so he wrote up a stop card.
Between 6 a.m. and 7 a.m. he saw three end bells that
the night shift had gouged the bad welds out of. When
East came to work he told East to rework the three bad
end bells and to weld end bells with Wade that day. He
had not seen East doing anything that morning other
than standing by the heater, so he wrote his stop card at
the same time as he wrote Wade's.
Alford walked to the work stations and gave Wade
and East their stop cards. When he got there Wade did
not have any tools out but began taking them out when
he saw Alford approaching. East only had his chipping
gun out and had not welded what Alford told him to
weld. The bad end bells were turned on end but were
not welded. Alford did tell Wade that he could now talk
hot rods all he wanted to. When he gave East his stop
card, East said to Alford, "One of these days you are
going to start home, and you ain't going to make it."
After Wade and East were terminated an inspector
told Alford that he had already seen the end bells at
Wade's work station and they were passed for inspec-
tion. Upon review of East's timecard for February 9
Alford found that he had welded an hour on end bells
the day before. Alford also stated that one weld on the
end bells had been changed by engineering about Febru-
ary 1 but he did not know the job number associated
with that changed weld. There are eight different job
numbers for welding end bells and he does not remember
what they are nor what welding job each is associated
with. Alford did not think that East's -hour job task
performed on February 9 was the same job task he had
assigned East on February 10. Although Wade's dis-
charge consideration included visiting, Alford did not
talk to any of the employees he said Wade visited the
morning of February 10. Alford observed both Wade
and East between 7 a.m. and 7:25 a.m. from his office
where he stated he was sometimes standing and some-
times sitting.
Respondent offered employees J. W. Brooks, C. J. Ste-
venson, Soapy Meyers, and Weldon Dorsey as witnesses.
Each testified that Wade and East wasted more time
than anyone else in the department.
The record shows that subsequent to their discharge
Wade and East protested that at the time of their dis-
charge they were discussing the very end bells that
Alford said they had not worked on. In addition, East
protested that he was discharged because he was a union
organizer. Bellatti, who was present in personnel, told
East that he was terminated for poor work performance
and that he was not protected for unsatisfactory per-
formance during a union organizational attempt.
Analysis and Conclusions
Alford discharged both Wade and East for failure to
get started to work soon enough after their shift started.
The period of time contended to be wasted is approxi-
mately 20 minutes. Respondent argues that both Wade
and East were warned about wasting time prior to their
discharges and points to the language on each employ-
ee's stop card. 26 Alford stated that he showed each EIR
to Wade and East after he wrote them up contrary to
the company rule which does not require such disclosure
to the employees. Wade and East deny Alford ever
showed them an EIR or discussed their work habits
prior to the union activity. Alford's disclosure that he
does not writeup every employee for all infractions
places an additional burden on the resolution of the fact
issue. An oral criticism of an employee is more easily
forgotten (particularly when not accompanied by em-
ployee protest or discipline) than written criticism.
Wherever oral discipline replaces written discipline the
objective value as a future deterrent suffers much the
same as any discipline program that does not utilize ob-
jective standards to measure the ultimate effect of prior
discipline. Without standards an employee does not
know at any one time where he stands on the ladder of
discipline. East thought the employer had a three-time
rule for discipline: warning, suspension, then discharge.
Respondent argued that the published rules clearly show
no such graduation. The published rules do, however,
allow for discipline ranging from reprimand to disciplin-
ary layoff, to termination of employment, so East's un-
derstanding is not completely without the realm of
reason or the company rule. Where the two part compa-
ny is in the administration of the rule. In my view, if dis-
cipline under any rule is to have meaning the employees
should be able to chart their respective positions based
2 1 find thc prior warning language on each stop card somewhat sus-
pect. however my findings are in no way based upon the language of the
stop cards
MARATHON LETOURNEAU COMPANY 367
upon past written disciplines. Respondent's administra-
tion of the rule makes no provision for accumulation of
disciplines by the employee. Alford's implementation of
the same rule denies an employee the basis for accumula-
tion of disciplines. The employee, therefore, is left with
an unknown as to what will happen next. Leadman Ste-
venson stated that the one EIR he issued he attempted to
have the employee sign because someone had told him
that was the procedure. Whomsoever the source, it
would appear, it was not Alford or management. Re-
spondent's rule does not require it and the printed form
makes no provision for employee signatures. Thus, Re-
spondent's rule makes the accumulation of discipline,
necessary to support discharge, whatever its preference
is at the time. Although judgment is a matter for Re-
spondent, where union sympathizers are disciplined in
circumstances evincing disparity the burden is on Re-
spondent to show equal treatment for all employees. Nei-
ther Respondent's rule nor Alford's application of the
rule evinces equality. In the last analysis the opposite is
shown. The fellow employees who testified that Wade
and East wasted time were nonspecific. It was collective-
ly nondetailed and conclusionary in response to leading
questions. With the exception of Meyers' statement that
the work stations of Wade and East were farthest from
the break area, I find nothing of probative value in the
testimony as a whole. Further, Brooks, while on the
stand, did not allude to the alleged fact that Wade was
visiting him on the morning of February 10. The other
two employees named by Alford as being visited by
Wade were not called to testify.
Assuming arguendo, if Alford did show the prior wri-
teups to Wade and East his arbitrary determination of
who to writeup and for what, or who not to writeup, in-
fluences the weight to be given to the prior disciplines. I
conclude that the prior writeups, whether or not they
were disclosed to Wade and East, have very little proba-
tive value in determining the lawfulness of the dis-
charges. I find therefore, that the discharges are not an
automatic consequence of events as Respondent argues.
It may appear that any enforcement of discipline under
the Employer's rule, and especially by Alford, would
suffer similar conclusions, but that it is not the case. An
employee may engage in conduct that would cause his
discharge in any event. The question becomes: Did
Wade and East engage in conduct warranting discharge
in spite of their union advocacy? I find the question an-
swered in the negative for the reasons stated hereinafter.
Wade admitted he was told to have some end bells in-
spected and get them moved out of the department.
Wade credibly testified that he sought out the inspector
and did in fact have the end bells moved out of the de-
partment. The testimony lies uncontroverted. Alford did
equivocate on the inspector in the department but did
not substantiate that Wade did not have the end bells in-
spected. Neither did Alford question the movement of
the end bells out of the department by Wade. 2 7 Alford
27 The material handler that Wade testified had moved the end bells
was not called io testify.
stated that he assigned Wade and East to work together
on end bells but does not deny the testimony of Wade
and East that they worked together in moving the end
bells out of the department. Alford assigns Wade's visit-
ing with other employees as the spark for discharge and
enumerated those employees visited. Alford did not,
however, question the employees to confirm that Wade
was in fact visiting before he discharged Wade. Brooks,
as stated earlier, was called by Respondent to testify but
did not mention the alleged visitation. East admittedly
was instructed to rework three end bells prepared by the
night shift the evening before. The instruction to East
was sometime after 7:05 a.m. because he clocked in after
7 a.m. Alford did not see East visiting other employees
or doing anything at all. Alford's vantage point in his
office may disclose arcs made by welding but it hardly
gives Alford a view of the work station separated from
his office by other work stations. Wade and East testi-
fied, without contradiction, that the three end bells to be
reworked were found under the pallet full of finished
end bells after it was moved out of the department.
East's testimony that he questioned the weld to use on
the end bells is supported by the credible testimony of
Wade, and Alford's admission that a welding change had
been made shortly before by the engineering department.
Wade's testimony showed that East's inquiry was based
upon the exact change which had been made in the
print. The testimony offered to show that East was fa-
miliar with the weld on the end bells, though credited as
an accurate account of East's job task the day before, it
is discredited as the same job task that East was assigned
on the day of discharge. Alford admitted that there were
eight welding operations on the end bells and he could
not identify any by number. The timecard entry there-
fore does not dispute Wade's nor East's testimony of
consulting the blueprint. Alford's testimony shows that
he did not know what East had done or was doing prior
to the time he gave East his stop card. It was only when
Alford got to the work station with the stop card that he
saw East had his chipping gun out of his tool box and
that the end bells were standing on end contrary to the
position in which he had last seen them. I credit East's
account of Alford's remark when he handed East his
stop card. Alford stated that East had been a goof-off for
the last 2 years. I find the remark instructive of Alford's
tolerance of East's habits prior to the union activity as
contrasted with the discharge less than 2 weeks after
East displayed union insignia while working. One can
only conclude that Alford had Wade and East mentally
associated as one and targeted his discharge.
It is abundantly clear to me, from the record as a
whole, that wasting of production time by Wade and
East, to the extent contended by Respondent, did not
occur on February 10. Therefore, considering the timing
of the discharges relative to union activity in the depart-
ment and the absence of compelling reasons for dis-
charge. I find the assigned reasons for the discharges of
Wade and East are pretextual and the real reason was
the open display of union sympathy by Wade and East
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on February I and thereafter.2 8 Accordingly, I find that
Respondent has violated the Act by the discharges of
Wade and East.
d. Billie Sanders and Vickie Mayo
Sanders began employment in August 1977 as a spot
welder on the carrier assembly line. His regular shift was
7 a.m. to 3:30 p.m., but he may begin at 6 a.m. occasion-
ally to make a 9-hour day. Prior to January the carrier
line had averaged about 75 parts an hour with the excep-
tion of the presses which are the second operation in the
line. The presses usually worked only 8-hour shifts to
produce the average whereas the other operations fre-
quently worked a 9-hour day to meet production quotas.
Although there is an average hourly quota it is not static.
The quota may increase or decrease due to customer de-
mands. When the customer requires more the line is
asked to produce more. On occasion when the line was
asked to produce more Sanders asked if he could work
overtime to get the extra production but Wilkerson said
the production had to be in 8 hours. Seventy-five parts
an hour would produce approximately 16 cartons a day.
Each carton contains 34 completed parts. Billy Craig,
Sanders' partner on the spot welder, in late 1977 had
been terminated because he could not set up enough
parts for Sanders to spot weld 75 an hour.
Approximately mid-January Foreman Wilkerson began
asking the line to produce about 100 parts an hour with
the exception of the presses which were asked to pro-
duce 125 parts. Seldom did the presses produce the 125
quota or the remainder of the line produce 100. On Janu-
ary 12 Wilkerson moved Sanders to the automatic
welder, a one-man operation, because Sanders was talk-
ing too much on the spot welder. This same day Vickie
Mayo was hired to work on the spot welder. During the
following week Wilkerson was prodding the line to pro-
duce 100 parts an hour. He met some opposition to the
quota because employees felt it was too high. Among
those employees complaining was Sanders and Mayo. On
February 3, an occasion when Wilkerson was prodding
Sanders to produce more and get out enough for 25
boxes, a verbal altercation ensued. Sanders was given the
option of getting his production up or leaving his em-
ployment.2 9 Sanders decided to stay on the job. On Feb-
ruary 7 Sanders was moved back to the spot welder to
work with Mayo. This same day Wilkerson told Sanders
and Mayo to concentrate on production and get out 100
parts an hour. Both employees complained that 100 parts
were too many and Wilkerson asked if they would work
over to get more parts. Each replied, "No." Wilkerson
ordered a timestudy of the spot welder operation to de-
termine the hourly rate for parts. The timestudy was ac-
complished by the industrial engineering department on
February 12 and 13. The study showed 102 parts an hour
as a valid quota. Wilkerson informed Sanders and Mayo
that 102 parts could be made per hour but just get 100 to
meet the quota. Both Sanders and Mayo protested the
quota but Wilkerson said the customers' requirements
2R Shattuck Denn Mining Corporation supra; N.L.R.B. v. Dorns Trans-
portation Company, Inc.. 405 F.2d 706 (2d Cir. 1969).
29 This altercation and Sanders' involvement in union activity was de-
termined in sec. I11,D,I.
had to be met. The following day Wilkerson took the
whole line outside the building into the yard. He told
them of the timestudy and that he expected 25 boxes per
day or 100 parts an hour. All the employees were told
that those who did not meet the quota would be written
up for the failure and three writeups would mean termi-
nation. The line then returned to work.30
About 3:20 p.m., Wilkerson asked the employees on
the line to stay long enough to finish the partial carton
because it would fill the truck and it could leave. At this
time 14 to 15 parts were needed to complete the carton.
At 3:25 p.m. Bob Ewing, the leadman, saw Sanders and
Mayo take off their gloves. Sanders left to wash up.
Ewing asked Mayo if she was going to help finish the
box. Mayo asked if it meant working over and Ewing re-
sponded that he did not know. Mayo said she would not
stay past 3:30 p.m. Wilkerson came up and Ewing re-
ported the incident to him. Wilkerson called to Mayo
before she got to the wash area and they began talking.
Wilkerson was explaining to Mayo the amount of time
required to finish the carton and how the pay would be
figured (the line was already on overtime) when Sanders
approached and began arguing with Wilkerson. Wilker-
son told both Sanders and Mayo if they leave don't
bother to come back tomorrow. Sanders became loud
and belligerent and wanted to know why he and Mayo
were fired. Wilkerson replied that they were not fired.
He considered that they had quit. Mayo stated that
Sanders was hollering at Wilkerson who was trying to
talk to Sanders but when Wilkerson couldn't be heard he
just walked off. Sanders and Mayo left and went to per-
sonnel and talked to Buddy Stahl. Stahl said they were
suspended pending a final determination. Mayo signed
the statements she gave to Stahl but Sanders did not sign
the statement he gave to Stahl. The stop cards for Sand-
ers and Mayo show that each were discharged on Febru-
ary 16 for unauthorized leaving of the work area and re-
fusing to work overtime.3a
Mayo testified that the day she was hired Wilkerson
asked what her prior employment was. She stated Schlitz
and Wilkerson asked if the teamsters were there and had
she been a member. Mayo replied that she was a member
and had a withdrawal card. She also told Wilkerson that
her husband worked at UPS which was also teamsters.
Mayo admitted that she did not list the Schlitz employ-
ment on her application in January. Mayo also gave out
two union cards but did so in an area where no supervi-
sor could see her. She also talked to some of the employ-
ees handbilling between shifts as she left the plant.
Mayo stated that the day she was discharged by Wil-
kerson she quit at 3:25 p.m. because she understood she
would not be paid overtime. Mayo testified that Wilker-
son did not attempt to explain the time and pay situation
to her before she left the plant. Bob Ewing had told her
:'U The above is based upon admissions and undisputed testimony from
all witnesses.
ai The above is a composite of testimony from Ewing, Wilkerson,
Mayo, and Sanders. The portions of the testimony concerning the cursing
between Sanders and Wilkerson and the glasses-throwing incident of
Mayo are disputed, however, I do not consider them germane to my de-
termination and therefore have not repeated them here.
MARATHON LETOURNEAU COMPANY 369
they would not get paid for the time and that the other
employees were doing it just to be human.
Employees Ewing, Ross, Walker, and Tanner testified
that Mayo never mentioned the union to them nor did
she display any union insignias. Each testified also that
Sanders was difficult to get along with.
Montgomery testified that the day before Sanders was
discharged Wilkerson was talking to her at the press and
said that Sanders talks too much when he should be
working.
Wilkerson testified that overtime is not mandatory and
he usually gives the employee the choice, unless it is a
situation where an order has to be finished and then he
expects all employees to work to finish it. In the past he
has told employees to stay and finish a particular order
and they have done so. Mayo had not been asked before
to stay to finish an order but Sanders had been asked and
has stayed.
Analysis and Conclusions
The General Counsel alleges in the complaint that
Sanders and Mayo were discharged on February 14. Re-
spondent's answer admits the allegation as alleged but
Respondent's evidence establishes a suspension by Wil-
kerson on February 14, and a discharge by the personnel
department on February 16. These circumstances do not
present a conflict because, in my view, Wilkerson's
action was tantamount to a discharge on February 14
without regard for the personnel department's activity.
With the exception of the union activity of Sanders
and Mayo and the circumstances surrounding Mayo quit-
ting production at 3:25 p.m. on February 14, there is
little dispute over what occurred. My previous finding
on Sanders' union activity encompassed all the evidence
from which knowledge of the Company could be in-
ferred. Therefore, Sanders' discharge, viewed indepen-
dently of Mayo's, is unrelated to union considerations.
However, the undisputed facts show that Sanders and
Mayo worked as a team and quit as a team on the criti-
cal day. Due to a possible association of the two I shall
consider the facts surrounding both discharges.
Mayo's testimony of her discussion with Wilkerson on
her first day is intended to establish her union activity
and Wilkerson's knowledge thereof. Although Wilker-
son's denial was simple, I credit the bulk of his testimo-
ny. Wilkerson appeared straightforward and not hesitant
to recall the events. I was impressed with his demeanor
and general attitude on the stand. Mayo, on the other
hand, appeared determined to tailor her testimony to her
benefit rather than honestly recall all the facts. I find that
admissions contrary to her direct testimony which came
out on cross instructive of her veracity. I have previous-
ly discredited Mayo in this decision and I find I cannot
credit her now. The inconsistencies and contradictions in
her testimony cause me to discredit her on most all criti-
cal points particularly the testimony relating to her union
activity and Wilkerson's knowledge of it.3 2
32 The testimony of tilhe other line employees was limited but the Gen-
eral Counsel's witness offered no testimony of Mayo's union smpathies
Mayo's alleged reference to Schlitz as to her former employment skips
three former employers and reaches back 4 years.
In addition I credit the testimony of leadman Bob
Ewing relative to Mayo's questions of working past 3:30
p.m. wherein he testified that Mayo only asked if the em-
ployees were going to work over. Further support for
this resolution is found in Mayo's signed admission to
personnel man Stahl and Sanders' admission that Wilker-
son asked them to work long enough to finish the carton
so the truck could leave.
Contrary to the General Counsel's argument that Wil-
kerson came down hard on Sanders after the union activ-
ity the facts show clearly that Sanders' production suf-
fered because of his proclivity to talk too much and
prior to any alleged union activity. Mayo herself ac-
knowledged that Wilkerson was always telling Sanders
to speed up and keep it moving from the day she was
hired. Conversely, Mayo testified that Wilkerson never
got on her to keep up production when according to her
Wilkerson had knowledge of her union involvement
even before he was alleged to have known of Sanders.
The undisputed facts show that Wilkerson wanted
more production from the spot welder even before the
alleged union activity began. He also wanted increased
production from the presses and eventually he discussed
the production needs with the entire line. It is clear to
me that neither Sanders nor Mayo was happy with the
new quota nor did they feel they could produce such a
quantity. Sanders knew that his prior partner had been
terminated for failure to meet a quota less than Wilker-
son expected at this time. Even the General Counsel
admits that Sanders and Mayo would have been dis-
charged soon because of low production. I view this ad-
mission as acknowledgement that Sanders and Mayo
would not or could not improve. The advent of the ti-
mestudy and Wilkerson's pronouncement that the pro-
duction had to be done in the scheduled time or suffer
discipline was more than Sanders and Mayo could
stand. : ' Wilkerson had denied them extra time so when
he asked them to stay extra and finish the last remaining
carton they refused. Sanders had been told previously to
stay in such circumstances but Mayo had not. Mayo did
know what the company rules were as a result of her
prior employment and familiarity with the employee
booklet. Her protestations, that she feared she would not
be paid for working or that by the company rule she had
to be out of the plant within 15 minutes of shifts' end,
offered as her reasons for not continuing to work are to-
tally implausible and unpersuasive. I conclude that Sand-
ers and Mayo refused to stay and help complete the
carton in a spirit of noncooperation with Wilkerson. Wil-
kerson had requested their presence as required by the
company overtime policies with respect to pressing cus-
tomer product deliveries and Sanders and Mayo had ar-
bitrarily refused. The other employees stayed to finish
the carton without the help of Sanders and Mayo. If
Wilkerson's request involved hours there may be room
for argument but here the time involved was only min-
3 The evidence regarding the supporting purpose for some employees
working 9-hour days and others working 8-hour days is incomplete but it
is clear that on February 14 the entire crew was working a 9 -hour day.
Apparently. machine breakdowns cause subsequent overtime to make up
lost production
.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
utes. I find that Wilkerson's discharge of Sanders and
Mayo was based upon the unexplained refusal to work as
requested and was not motivated by any impermissible
considerations such as the union activity in the plant.
Therefore, I find that Respondent has not violated the
Act by discharging Sanders and Mayo.
e. George Brewer
Brewer was hired by the Company June 2, 1977, for
the second time. He had worked for the Company in
1971. When hired in 1977, he asked to work in Turner's
department so he could be a helper to Rapp. He was as-
signed to that department to work the 4 p.m. to 12:30
a.m. shift. Rapp, in Turner's absence, assigned him a
buffing job but Brewer did not like it. Brewer stated that
it was a boring, miserable job; the same thing over and
over and the glass particles would get on your clothes.
After working four nights on buffing he laid out of work
so he would not have to do anymore buffing. If Turner
assigned Brewer a job he did not like, he would tell
Turner he did not want to do it and Turner would assign
him something else. Brewer testified, "Me and Turner
were real good friends then. He knew I would work if
you gave me the right job."
Brewer began his union activity shortly after the first
union meeting in November 1977. Brewer testified that
Bellatti saw him handbilling and on one occasion, ap-
proximately December 5, 1977, a gate guard requested
his name, badge, and department number to report his
handbilling activity. Brewer was due a merit raise De-
cember 2, 1977, but did not receive it in his pay. On De-
cember 16, 1977, he went to the office to check on his
raise and spoke with a clerical, Tippitt. Her check of the
rate card revealed Brewer's receipt of the merit raise
plus the general increase. She said it must be a computer
foulup because it was posted, and he should have gotten
it. Brewer then went to see Bellatti to check on the raise.
Bellatti told Brewer he would check on the raise.
Brewer then told Bellatti he wanted to get Fox off his
back because Fox was riding him during working hours.
Brewer said Fox did not have to harass him like he was
doing just because Brewer was a union organizer.
Brewer yelled, hollered, and sang a lot and Fox told him
to stop it. Brewer said the employees liked it and expect-
ed him to do it and it was not hurting anyone. Brewer
also stated that Fox insisted that he buy his own tools
and quit borrowing Turner's. Brewer testified that he
was due a reclassification and pay increase if he used
tools so he told Fox that when he got the increase he
would buy the tools. The next day Turner gave Brewer
a toolbox and several tools. Brewer bought pliers and the
Company furnished sockets. In early January, Brewer,
during working hours, began wearing a Teamsters vest
with several Teamsters buttons pinned on the outside.
On January 3 Brewer damaged an outside door with a
forklift. He claimed the door was faulty when he report-
ed it to Fox. He told Fox, "We both met at the door and
he stopped it, or the door slid down or something, but I
hit the bottom of it." The next day, Brewer stayed home
on Fox's orders pending an investigation. On January 6
Brewer was suspended by Bellatti who also stated that
Brewer's raise would be suspended until February 1.
Brewer again asked Bellatti to have Fox stop his harass-
ment. Brewer told Bellatti that he suspended him be-
cause of the union. Bellatti responded that he did not
care about Brewer's personal life. Bellatti also told him
that additional damage to company property could result
in discharge.
On January 17 Brewer was moved to the oven. He
testified that the oven smelled terrible and was a miser-
able job. The ventilation and air conditioning was bad
and created a health hazard. On January 25 Brewer was
being instructed by Turner on how to do a certain job
and Brewer told Turner that he did not know what he
was doing. Brewer had come out of the oven and hol-
lered his criticism to Turner. Fox heard of the incident
and told Brewer to stay in the oven and work by him-
self. Brewer testified that Fox forbade him asking Turner
for help. On January 26, Brewer, during shift, called
Chuck Jones, the safety director, at his home and report-
ed that he was afraid to work alone in the oven. Jones
came to the plant that evening and told Brewer that he
could have help whenever he needed it. The following
night Brewer dropped a D-7 armature weighing approxi-
mately 3,000 pounds. He stated that a cable on the hoist
was faulty and had been declared unsafe but he was told
to use it anyway. Brewer further claimed that a home-
made hook was unsafe because it did not have a safety
latch and that all the equipment in the oven was old.
Brewer also stated that the company safety man told him
that the oven and equipment had been inspected by
OSHA and was certified safe.
On February 2 Brewer asked Bellatti about his raise
that had been suspended and Bellatti told him the raise
was canceled because he dropped the armature. Bellatti
also told Brewer to talk to Fox. Brewer testified that
Fox screamed at him that he doubted Brewer would
ever get a raise and he was not going to get any help in
the oven. Brewer stated that he suggested a ridge around
the table in the oven to a safety man who expressed that
it was a good idea, but later Plant Superintendent
Malone said the table would not be changed.
On April 4 Brewer asked Turner and Whitwell, the
supervisor of the oven crew on days, to help him get on
the day shift. Turner said he could not help and
Whitwell suggested he talk to Fox, so Brewer took his
request to the president of the Company. Shortly thereaf-
ter Plant Manager Dan Jones, Malone, and Fox came to
the oven. Brewer testified that Malone said, "Don't
worry about getting on days or in the evening. You are
not going to be here that long anyway." During shift
Saturday, April 22, Brewer dropped another armature
but it was an L-l which is slightly larger than a D-7.
Brewer claimed that the faulty hook became disengaged
allowing the armature to roll off the table. He could not
stop the armature because he did not have his gloves on
and the armature was hot. He had blocked it with sever-
al bolts instead of using wood chocks. Brewer said the
wood chocks were not in the oven at that time. On
Monday Fox learned of the damaged armature and sus-
pended Brewer. On April 25 Bellatti discharged Brewer
for repeated damage to company property.
MARATHON LETOURNEAU COMPANY 371
Brewer testified that he did not know of any other ar-
matures being dropped in the oven but employees else-
where dropped them all the time without being disci-
plined. Brewer stated that it was no big deal to drop an
armature. He had dropped several others which he im-
mediately repaired and they were used. After dropping
one armature he requested a special hook and engineer-
ing made him the hook. Chuck Jones told him it would
not work but Brewer tried it. He discarded it shortly
after he got it. Brewer stated that Stanley Turner
worked in the oven by himself before he was assigned
the job in January; however, Turner did not do the
volume of work that he had to do. Brewer acknowl-
edged that on the day shift Stanley Turner's son works
in the oven himself most of the time. Brewer stated that
he heard that the Company had used the second arma-
ture he dropped. Brewer acknowledged that Fox,
Turner, and leadman Ritchie had spoken to him on sev-
eral occasions about talking too much to employees who
are working, yelling, and hollering, not doing a job com-
pletely, damaging parts and not using the equipment
properly. Brewer did not recall seeing any writeups re-
ferring to these past instances however. He did remem-
ber Ritchie making a note once on a damaged small ar-
mature.
Haskell, a material handler, testified that he ran into a
door with his forklift and knocked the glass out but was
not disciplined for it. On another occasion he was carry-
ing three L-l armatures with his forklift to the electric
building to be wired. He hit a hole in the floor jarring
the armatures off the skid onto the floor. Two of the
three armatures were damaged. He was not disciplined
for the accident. Haskell also dropped some motors
which were damaged but the forklift chain gave way so
it was not his fault. Haskell was a union supporter and
wore his button while working. He had his union button
on when he damaged the motors and armatures. Shortly
after the armatures were dropped the Company changed
the design of the skid and gave the new skid to Haskell
to use. Haskell stated that his foreman, Gray, has not
written him up for any of the damages as far as he
knows.
Parker, a motor winder in Brewer's department, testi-
fied that the L-l armature dropped by Brewer was re-
pairable because the damage was slight. In the past he
has simply knocked coils back out so they are straight
and sent the damaged piece to the next operation. Parker
stated that when he first viewed the L-l only the coils
were bent. The commutator and risers were not damaged
nor was there any inside damage to the coils. Rapp and
he beat the coils back straight and it was OK. We took
about 2 minutes to straighten out the coils. Parker stated
that he has done all the operations in the oven and on
several occasions worked in the oven by himself. He has
not had any equipment failures or dropped any armatures
while working in the oven.
Tolbert, a dome #2 employee, testified that he looked
at the L-l armature that Brewer dropped while it was in
his department. The only damage he saw was to the
banding. A piece was torn away from the band. The
commutator looked like it was in pretty good shape. Tol-
bert saw another armature with a badly damaged com-
mutator about the same time that Brewer dropped the L-
1. He did not know whether that commutator was re-
worked or not. Tolbert stated that his identification of
the armature he inspected, as "Brewer's," is based upon
what other employees told him. He did not know where
the salvage area of stores was and had never been there.
Coppedge, a motor winder, testified that he only saw
coil damage to the armature that Brewer dropped but he
did not go over the armature thoroughly. Coppedge
stated that they repair damaged coils all the time but he
doesn't do the repairs himself. Neither does he test the
armatures. The next day he saw the material handler
take the armature to salvage and he did not see it again.
He stated that minor damage is never sent to salvage.
Coppedge saw another armature damaged on May 6 and
as far as he knew it was repaired. He believed it was the
same as an L-l. He stated that even those that he saw or
thought were repaired could be eventually scrapped be-
cause he does not see them again. Coppedge recalled
that about 1-1/2 years ago he and Impson dropped a 700
KW motor and neither was disciplined for it. The
damage was slight and immediately repaired. He stated
that we have things that people just made up there to
pick up stuff with and it was all old.
Hampton, a forklift driver, testified that he never has
dropped an armature. He does not handle the new ones,
he only handles scrapped armatures. He washes them
and takes them to salvage where they take them apart.
He has not told any employee that he dropped any arma-
tures. Hampton works under the supervision of Whitwell
but has never worked in Foreman Gray's department.
Hardee, a motor winder, winds the coils on most of
the L-l's in the shop. He saw the L-l Brewer dropped
by his workbench the Monday after it was dropped. He
inspected it and found damage to the coils, banding,
risers, and the commutator. He did not check the arma-
ture out electrically but it could not be mounted in the
shape it was in. Hardee stated that you would not be
able to put a pinion on the shaft because of the bent
metal band under the coils. If you beat out the metal
band to accommodate the pinion the beating would
probably damage the coils further. The equalizers under
the coils could be damaged but you can't tell without
taking the banding wrap off the coils completely and re-
moving the banding wrap could further damage the coils
too. Neither he nor Mack Ray picked up the armature to
work on it. Hardee did put it in his banding machine but
did not do any work on it. Hardee did not electrically
test the armature.
Stanley Turner testified that he saw Brewer run into
the door with the forklift. As Brewer approached the
door and it started up he had his head turned talking to
some girls. He continued moving the forklift while talk-
ing to the girls and hit the door. He had not raised the
door high enough to clear the forklift in the first place.
Turner was working the night Brewer dropped the L-l
armature. He had the armature moved out of the oven
and told Rapp and Parker to try to beat out the coils.
After several minutes of beating, with little or no prog-
ress, Turner told them to leave it for the day shift and he
put a tag on it. Turner also stated that he has worked
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alone in the oven for a month or more and never had
any problems with the equipment. Neither the fumes nor
the heat presented any problems so long as the units
were working. Turner did not think the oven was a bad
job.
Chuck Jones, safety engineer, testified that he respond-
ed to Brewer's telephone call on January 26. He met
Brewer at the oven and Brewer claimed he was instruct-
ed to stay in the oven and not to ask for help. He also
said the lifting hook was unsafe. Jones examined the
hook and discussed its proper use with Brewer and sev-
eral other employees. Brewer wanted a special hook
made for him to use in the oven. Jones agreed to supply
Brewer with the kind of hook he had suggested. Jones
had Fox and Turner come to the oven. Fox stated that
Brewer had misunderstood the instructions. What
Brewer was told to do was stay at his work station
unless he needed assistance or was going to the restroom.
When he needed assistance Turner would supply it.
Brewer was not to attempt any job alone which required
assistance. Fox had also told Brewer not to take up other
employees' time with stories or singing. Jones informed
Brewer that the oven area was inspected regularly by
OSHA, the State of Texas, and the insurance carrier. No
citations of deficiencies have been issued. Jones stated
that he has no knowledge of any equipment failure in the
oven.
Davis, the principal inspector, testified that he inspect-
ed the L-I armature, which Brewer had dropped on
April 22, on Monday morning, April 24. He found
damage to the windings, risers, and the commutator. His
inspection disclosed bare wires where the insulation had
broken off which indicated internal damage to the insula-
tion. This meant the windings were grounded and could
not take an electrical test. Davis stated it would be
unsafe to personnel and machine to give the armature a
full test. At 4,000 rpm the armature could burn badly,
possibly even explode, and hurt someone. He filled out
the scrap ticket and sent the armature to salvage for final
review by the Company's scrap committee.
The Company's scrap review committee is composed
of Whiteside, director of quality control; Dan Jones,
plant manager; and Whitehurst, vice president of manu-
facturing. Whitehurst was out of town in April so the ar-
mature was reviewed by Whiteside and Jones. Their de-
cision to scrap the armature was based upon the condi-
tions of the coils, with bare wires exposed in the wind-
ings; the damage to the riser bars which cannot be re-
paired without being dismantled and replaced and the
condition of the commutator. The gouge on the commu-
tator was almost .0062 of an inch. Whiteside stated that
the depth of the gouge was almost one-half of the thick-
ness of a finished commutator. Whiteside and Jones
agreed that with $9,000 in the armature at this stage of
production it would not be feasible to expend additional
funds to make it usable. The reworking cost would be
high so the least expense to the Company was to scrap
it.
Rapp, an armature winder in Brewer's department, tes-
tified that Turner asked he and Parker to look at the L-l
armature that Brewer dropped when it first came out of
the oven. Turner asked Rapp if he thought anything
could be done. Rapp said maybe they could beat the
coils back straight. Turner said to try. Rapp tried for
awhile but Turner later said to leave it for the day crew.
Rapp stated that beating bent coils straight with a
hammer and board can only be done when it is hot and
any electric test must be done when it is cold. Beating
coils straight with board and hammer happens infre-
quently. Rapp, himself, had never attempted it before on
an armature as large as the L-l.
Dorough, an employee in generator assembly, testified
that the commutators on the L-l armature are purchased
from an outside supplier. The manufacture of the arma-
ture requires the Company to turn the commutator to a
certain size. This sizing is done on the armature after it
has been through the operations that Brewer's armature
had been through. The amount of turning down to size
depends upon the size it was when purchased. Dorough
stated that he knows of some commutators being turned
down as much as .0060 of an inch, however, he does not
perform the turning operation. After the commutators
are turned down they go to the undercutter for the mica
between the commutator bars to be cut to a depth below
the surface of the bars. Dorough cuts the mica down
.0046 of an inch. On one occasion his machine misread
and cut into the bar. He sent the commutator back for
returning to remove the bad cut the undercutter made on
the bar. Dorough stated that based upon his experience a
commutator coming from the oven could be turned
down in excess of .0100 of an inch without lowering the
standard for the armatures. Dorough further stated that
he did not get a good look at Brewer's L- . He could
not see the commutator at all but he did see that the
coils were bent and broken a little. Dorough said he had
no knowledge of rework on any commutator.
Bellatti testified that his first meeting with George
Brewer was on January 6. The meeting concerned the
damage to the overhead door caused by Brewer. In this
meeting Brewer identified himself as a Teamsters-activist.
Brewer was informed that his pay raise was being with-
held due to the door damage. Bellatti saw Brewer again
after he dropped the armature on April 22. Bellatti in-
formed Brewer that he was suspended pending an inves-
tigation. Bellatti's investigation disclosed that Brewer
had failed to follow established procedures of blocking
with wood blocks which resulted in damage to the arma-
ture. Bellatti told Brewer on April 25 that he was termi-
nated for repeated damage to company equipment. Bel-
latti denied discussing Brewer's December pay raise with
him or with Fox on December 16, 1977.
Tippit, a personnel assistant, testified that Brewer came
in to see her in December 1977 about a raise he thought
he should have. She checked Brewer's rate card and it
showed a raise to $4.84 effective December 5, 1977. The
card did not reflect the general increase of 8 percent that
had been effective November 28, 1977. Tippit told
Brewer there must have been a computer foulup and she
would have to check it out. She probably told Brewer
that if the raise was due it would be retroactive to De-
cember 5, 1977. After Brewer left she found that his ap-
parent raise on December 5, 1977, had actually been dis-
approved and was posted in error with the 8-percent
MARATHON LETOURNEAU COMPANY 373
general increase. Tippit lined through the entry and
posted only the general increase of 8 percent making the
rate $4.73 effective November 28, 1977. The corrections
to the card were made on December 17, 1977. Tippit tes-
tified that the clerical, Hunter, erroneously made the
entry on Brewer's rate history card when the approval
slips went out to the foremen rather than after the fore-
men returned them to the office either approved or dis-
approved.
Malone testified that he, Dan Jones, and Fox indeed
talked to Brewer in the oven at the president's request.
Malone told Brewer that he was responsible to Fox for
all his work. Malone denied any conversation with
Brewer about transferring to days and specifically denied
telling Brewer not to worry about days because he
would not be there much longer.
Foreman Gray testified that Haskell did drop several
L-I armatures on May 1 resulting in slight damage to
one. He investigated the incident and found that the
floor where Haskell had the accident was uneven and
had several potholes which may have contributed to the
accident. Gray also found that the skids used for the L-
I's were not capable of containing a load when such a
road surface was encountered at forktruck speeds. Gray
redesigned the skid and ordered new skids for the L-l's.
Haskell was written up for the damage and careless driv-
ing and counseled by Gray. The armatures were repaired
in about 30 minutes. Gray also investigated the broken
glass in the door in January and found that the accident
was caused by the wind blowing the door into Haskell's
forks as he had reported. The damage was slight necessi-
tating replacing the glass only. Gray was not aware of
any accident involving J-motors in April due to a faulty
forklift chain. The daily vehicle maintenance records
kept by Haskell on his forklift did not reflect any such
vehicle trouble in April. Gray was aware of only one
other armature being dropped and that was in the elec-
tric building.
Foreman Fox testified that he had written up Brewer
several times in the past for talking too much; keeping
other employees from working; yelling, singing, and hol-
lering during shift; not performing his job satisfactorily;
not using equipment as instructed and damaging compa-
ny property. In January, when Brewer damaged the
door, Fox investigated by getting the facts from Brewer,
Turner, and Amos. Brewer told Fox what happened
when he reported it to Fox. Turner saw the accident,
and Amos was the stores employee on the scooter who
was coming through the door at the same time. Amos
told Fox that he only raised the door high enough to get
his scooter through the door. Amos got through first and
Brewer's forktruck would not get through unless he
raised the door higher. Brewer did not raise the door
higher and his forktruck hit the door. Turner stated that
Brewer was preoccupied with girls as he was moving
through the door and not paying attention to the door.
Fox suspended Brewer for 3 days and wrote him up for
careless handling of the forklift. When Brewer dropped
the D-7 armature on January 28, Fox wrote him up for
careless operation and damage to company property.
Fox stated that the D-7 was repaired and continued on
the production line. Brewer dropped an L-l armature on
April 22 during shift. Fox was not on duty but returned
on April 24. Upon learning of the damaged armature
Fox suspended Brewer pending investigation of the inci-
dent and wrote up Brewer for carelessness resulting in
extensive damage to an L-l armature. Fox told Brewer
that personnel would get in touch with him. Fox stated
that the first he knew of Brewer's union activity was
during the January 6 meeting with Bellatti when Brewer
announced he was a union organizer.
Analysis and Conclusions
The General Counsel alleges four counts of discrimina-
tion by Respondent against Brewer: (1) denial of a pay
raise retroactive to December 5, 1977; (2) suspension on
January 6; (3) reassignment to a more onerous job task
on January 17; and (4) discharge on April 25. Respond-
ent offered a defense, to each count of discrimination,
which involved Brewer's conduct on the job. In each
case Brewer admitted the conduct as recorded and relied
upon by Respondent. The General Counsel contends,
notwithstanding cause, that Respondent reacted through
animus toward the union campaign being conducted by
some of its employees. The General Counsel argues that
Brewer was an early, staunch, high profile, prounionist
employee, who was important to the campaign. A comic
strip, antiunion leaflet was offered by the General Coun-
sel and claimed to show Brewer's stature during the
campaign. The reference is only to a "George" in the
leaflet. There is no evidence subjective or otherwise to
identify the "George" depicted as Brewer. I do not con-
clude that the portrayal in the leaflet is George Brewer.
The portrayal could be any "George" or an impersonal
reference to a very common given name. Brewer's testi-
mony of the guard's and company officials' knowledge
of his handbilling in November 1977 (basically the extent
of his union activity until January when he began wear-
ing union insignia on his work clothes) is too conclusion-
ary and speculative to warrant an inference that Re-
spondent had knowledge of his union activity. Further I
do not credit Brewer's testimony in this respect. It was
too pat and matter of factly to be believable. Assuming,
arguendo, Brewer was one among many who handbilled
and the record is silent on any facts to establish Brewer
as something other than a handbiller like the other em-
ployees. In any event, there is no evidence to establish
Brewer's, contended for, primary purpose to the employ-
ee's campaign. I therefore find that Brewer's status
during the campaign was identical to many other em-
ployees who displayed union sympathies and that
Brewer displayed in earnest in January.
In summary the General Counsel argues that Brewer
was disciplined not for cause but for his union activity.
The General Counsel contends that evidence he elicited
shows that nonunion employees who were guilty of the
same infractions were not disciplined. Thus, Respondent
was disparate in its treatment of union employees as con-
trasted with its treatment of nonunion employees. A Re-
spondent may be found to be discriminating against
union sympathizers in one instance but it does not follow
that all union sympathizers, who are disciplined by Re-
spondent, are discriminated against. The General Coun-
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sel has the burden of proving discrimination against each
individual alleged as a discriminatee. For the following
reasons I conclude that the General Counsel has not sus-
tained his burden of discrimination against George
Brewer.
Fox testified that he did not feel Brewer was due a
step increase on December 2, 1977, but to be fair to
Brewer he discussed the appraisal with Foreman
Whitwell. The consensus was to disapprove Brewer's in-
crease because of his performance up to that time.
Whitwell was Fox's backup supervisor which makes
Fox's consultation reasonable including Whitwell's disap-
proval rather than Fox's on the increase approval slip.
Fox's conclusion is adequately supported by the two ad-
mitted deficiencies in Brewer's work performance occur-
ring in October and November 1977. The error in post-
ing by the clerical staff of Brewer's rate history card was
credibly explained by Tippit. I do not credit Brewer's
testimony that he spoke with Bellatti on December 16,
1977, about the raise or that he saw Bellatti on that occa-
sion. Bellatti denied any such meeting and I credit Bellat-
ti's denial. The probabilities, more reasonably, dictate
that Brewer first spoke to Bellatti on January 6 concern-
ing his wage, otherwise there would have been no reason
for the January 6 meeting. Any investigation by Bellatti
on December 16, 1977, would have disclosed the error
and Brewer would have known of his raise status then.
The failure of the clerical to follow up with the employ-
ee is hardly evidence of discriminatory withholding. The
objective evidence evinces a return of the disapproval by
supervision within the time specified on the increase ap-
proval form which either predates Brewer's union activi-
ty or fails to support discriminatory intent for such mini-
mal union activity at that point in time. I note, particu-
larly, that Brewer's most recent writeup prior to the due
date for the increase was November 17, 1977, which is
prior to Brewer's union involvement by 4 or 5 days. Ad-
ditionally, I find Brewer's self-characterization of when
and how he will work on a particular job, is instructive.
If he likes the job he will work, if he does not like the
job he will not work. Also, by his own testimony, his in-
dividual job selection was only valid with Stanley
Turner. I conclude and find that Respondent's denial of
the step increase on December 2, 1977, was not discri-
minatorily motivated but rather was work related.
The suspension Brewer received on January 6 was
argued by the General Counsel to be motivated by
Brewer's union activity not the claimed damage to the
plant door. The General Counsel buttresses this argu-
ment with testimony that at approximately the same time
another employee, Haskell, damaged a plant door with a
forktruck and was not disciplined. Except for Brewer's
protestations that the other employee using the door
lowered it or the door was faulty and caused the acci-
dent, the facts are undisputed and disclose some similari-
ties. Assuming the wearing of union buttons establishes
the union activity of employees, both Brewer and Has-
kell were union employees. Brewer's forktruck was hand
operated requiring some attention to operate, while Has-
kell's was a motor driven vehicle which required a great-
er degree of attention to operate. The motor vehicle
forktruck has a greater damage potential to a plant door
than a hand forktruck yet the greater damage was caused
by Brewer. Although the record does not disclose the
cost of Haskell's damage it does show that only two
panels of glass were damaged whereas Brewer's damage
was in excess of $160. Turner credibly testified that
Brewer was attentive to several girls as he moved
through the door and his fork carriage engaged and
damaged the two lower sections of the partitioned door.
(Brewer's testimony shows he does mix social proposals
with work.) Brewer's explanation of the cause is only
speculation and not based upon observable facts. Brew-
er's lack of knowledge from observable facts tends to
support his history of negligence and inattentiveness.
Fox's investigation of the accident showed that for
Brewer to pass through the door without incident he
needed to keep his attention on the door. The evidence
evinces the contrary. He did not focus his attention on
the door and damage was the result. Gray, who investi-
gated Haskell's accident, found that the damage was
slight and caused by the wind blowing the door as re-
ported by Haskell. Wind is not illusionary but is subject
to objective evaluation. Respondent's evidence showed
that the 3-day suspension was generated by the nature of
the accident and the cost involved to repair the door.
The General Counsel has not established a contrary mo-
tivation for Respondent's suspension of Brewer. I there-
fore conclude and find that the 3-day suspension of
Brewer on January 6 was not discriminatorily motivated.
Brewer's reassignment to the oven followed the sepa-
ration of the prior oven employees and the handling of
their duties by Turner for several weeks. Turner, who is
the most senior employee in the department, credibly tes-
tified that the oven is not a bad job. Turner's son works
the oven alone on the day shift. Several employees who
work in the department testified that they have worked
in the oven alone without incident. In fact, of all the em-
ployees who testified to the nature of the oven as a job
task, Brewer was the only employee who experienced
difficulty. Fox testified that the oven was assigned one
and one-half employees normally because there are some
functions that require two employees. Brewer's testimo-
ny that he was ordered to stay in the oven and not ask
for help, I do not credit. Over and above his demeanor,
which I found overbearing and arrogant at times, the
substance of his testimony is contrary to the general
theme of other witnesses and completely untenable when
compared with his testimony and the record as a whole.
Brewer found fault with any equipment he was required
to use when no one else experienced difficulty. Brewer's
characterizations of the oven equipment as faulty, unsafe,
old, or homemade is not an honest evaluation. It is
simply a convenience. 3 4 Much the same as his often re-
peated phrase, "a boring and miserable job." Brewer
contests the alleged misunderstanding of Fox's instruc-
tions when he was assigned to the oven. I find his pro-
test weak and unimpressive. Brewer admittedly did not
34 The record shows that Respondent has an engineering department
which is an integral part of the manufacturing process both in terms of
products and plant design. Most, if not all, of Respondent's special tools
or equipment used throughout the plant are "home made." One discri-
minatee who testified asked to be permanently transferred to the oven.
MARATHON LETOURNEAU COMPANY 375
want to talk with Fox, for whatever his reason, howev-
er, when he broached the subject with Chuck Jones he
was met with an immediate appraisal contrary to his
prior understanding. So there would be no further misun-
derstanding, Jones summoned Fox and Turner. Jones'
credible testimony included reinstructing Brewer on the
proper use of the equipment since Jones had observed
Brewer using the equipment improperly. Several days
earlier Brewer had been admonished by Fox for telling
Turner that he did not know what he was doing when
Turner was instructing Brewer on the proper procedure
to use the oven. Apparently improper procedure is the
rule with Brewer, rather than the exception, and occurs
in spite of instruction to the contrary. The record con-
tains undisputed evidence that the oven is a safe atmos-
phere with more than satisfactory equipment. I think
Brewer's understanding of Fox's work instructions and
his related difficulties emanate not from Fox or the
equipment in the oven but his approach to any assign-
ment he is given. If his evaluation of the job task is that
it is "boring and miserable" then more likely than not it
will be. In my view it reasonably follows that proper
procedure will not get the attention it should when one
is bored or miserable on the job. Brewer's insistence on a
new design hook as opposed to the established proce-
dures for the old hook demonstrate his reluctance to do
the job as instructed. Brewer's complaints of the oven
equipment deserve no more consideration as probative
evidence of the worth of the oven equipment than he
gave the newly designed hook when Respondent hon-
ored his request. The General Counsel alleged the assign-
ment to the oven as one to more onerous duties. I con-
clude that the General Counsel has not preponderated in
the evidence and find that Brewer's assignment to the
oven was no more or less than any job assignment in his
department. 35 I further find that Respondent's assign-
ment of Brewer to the oven was not discriminatorily mo-
tivated but rather was another attempt to find a job task
at which Brewer might work efficiently.
Respondent contends that the subsequent accidents
caused Brewer's discharge. The D-7 dropped in January
and the L-I in April. Brewer's discipline for the D-7 was
a writeup apparently because it was repaired and used.
The L-l, however, was damaged extensively in several
places. Respondent's undisputed evidence shows the in-
complete L-1 to be valued at about $9,000 and due to the
extent of damage requiring additional cost to repair it,
the determination was to scrap it.
The General Counsel argues that the L-I could have
been easily repaired but was not and that defective
equipment was the actual cause of the accident. The two
employees who physically attempted to repair one por-
tion of the damage were much too terse in their testimo-
ny and simply not competent to testify. The General
Counsel's witness had the armature repaired completely
in 2 minutes based upon the fact that he had performed
36 The General Counsel's reliance on Jack LaLanne Management
Corp., 218 NLRB 900 (1975), is misplaced because in LaLanne the discri-
minatees were forced to absorb the duties of others in addition to their
own duties. In the instant case that is not the situation. Brewer was
simply reassigned to a task that many other employees have performed
without incident.
the same operation in the past and then sent the armature
to the next operation. Respondent's witness testified that
he actually attempted the repair but was unsuccessful. I
cannot credit both, obviously, but even more is my con-
cern for the probative value of either's testimony. It is
evident to me that the testimony of each witness is based
upon speculation and guess. Parker saw no other damage
to the armature and has no responsibility or capability to
test an armature electrically. Such a test must be applied
whenever coils are reworked to assess the success of the
rework. It is undisputed that coils may appear all right
when viewed by eyesight but have no electrical integri-
ty. Rapp was attempting a repair he had not performed
before and he too had no responsibility or capability to
test an armature electrically. Even if the only damage to
the armature rested in the coils I would not find the tes-
timony of Parker and Rapp to constitute substantive evi-
dence. Tolbert's testimony adds nothing to the disputed
damage to the L-1 armature dropped by Brewer. His tes-
timony is completely diluted by conclusion and mere
guess rendering the whole of no probative value. At
best, Tolbert's identification of the armature he viewed
rests on hearsay. Coppedge stated that only the coils
were damaged but he did not inspect it thoroughly. He
said, "we" repair armature coils all the time but he does
not do the repair himself. He did not test the armature
but he saw the forklift carry it to salvage the next day
and minor damage does not go to salvage. Hardee's im-
pression was that the L-l dropped by Brewer was the
worst damage he had seen and he was able to specify
what he saw. Hampton simply testified that he had not
dropped any armatures at all. I find the more substantial
evidence in the record was offered by Respondent's lead
inspector, the manager of quality control and the plant
superintendent. Their testimony showed damage to the
coils, the risers, and the commutator. I conclude that Re-
spondent's determination of the damage and the cost
figure assessed accurately reflect the result of Brewer's
accident. The General Counsel offered additional evi-
dence to establish that the commutator damage was re-
pairable rather than irrepairable as contended by Re-
spondent. Dorough's testimony is founded upon what an-
other employee does when first working the commuta-
tor. Dorough's assertion, that the subject commutator
could be cut an additional .0110 of an inch, which would
easily eliminate the .0050 of an inch gouge caused by
Brewer, will not withstand analysis. The first cut he
refers to is not always .0062 of an inch or on average
.0062 of an inch, but is a maximum of .0062 of an inch.
Wherein the value of the cut on a given commutator lies
is determined by its dimension as received from the sup-
plier. Additionally, the machine error he alluded to
would not necessarily be valued the same as the maxi-
mum depth of cut on the mica. The erroneous cut on the
commutator bar would be something less than 46/1000
of an inch. Therefore, the total cut to be applied to a
given damaged commutator would not be in excess of
100/1000 of an inch. His assertion, no matter how posi-
tive, is based upon his conjecture and not his personal
knowledge of the operation he describes as turning the
commutator. I neither credit Dorough's testimony nor
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do I consider it substantial evidence with probative
value. The uncontroverted testimony of Respondent es-
tablishes the depth of the gouge as approximately one-
half the workable thickness of the commutator. I there-
fore conclude that the L- armature dropped by Brewer
was unrepairable due to the extent of damage and the
cost involved and was scrapped as contended by Re-
spondent.
The General Counsel's final contention is that cost,
notwithstanding, armatures are dropped by other em-
ployees, sustaining damage, but the other employees are
not disciplined. The record simply will not support that
contention. The evidence shows that before and after
Brewer's fatal drop all employees who damaged arma-
tures (and other company property) are disciplined.
Albeit the discipline in all other cases was a writeup (like
Brewer received for the D-7) there is no suggestion that
any employee has damaged an L-I to the same extent as
Brewer. A factor that must be considered in making a
judgment is the stage of production attained by the dam-
aged piece. Brewer's armature was almost complete
which accounts for the high cost involved. The only ref-
erence in the record to other damaged L-l's was before
any windings are affixed and only involved damaged to
the risers. In addition, both were repaired with a mini-
mum of effort and cost.3 6
Based upon the above I conclude that the General
Counsel has failed to sustain his burden of proving dis-
crimination and find that Brewer was discharged for rea-
sons unrelated to his union activity.
2. More Discrimination-James Dorough
Dorough has worked in the electric building for sever-
al years under Foreman Whitwell and leadman Richie.
In addition to performing multifunctions he also works in
two departments. Dorough has heat treated armatures
since about August 1977 and began operating the auto-
matic undercutter when it was installed in October or
November 1977. Usually the automatic undercutter is
only a couple hours work then he returns to assembly of
generators or heat running armatures. Dorough and two
other employees do all the work in Department 883G
and usually by priority. The part that is needed most gets
worked on by all employees. When he is heat treating ar-
matures he is in Department 883G, but when he operates
the automatic undercutter he is working in Department
885. Dorough's checks come from 883G regardless of
what jobs he has performed during the period. During
January and February both departments were working
daily overtime; however, Dorough did not. He only
worked his regular shift of 7 a.m. to 3:30 p.m. Frequent-
ly during this period of January and February, Dorough
handbilled employees between shifts starting at 3:30 p.m.
and passed out union authorization cards. Dorough testi-
fied that he offered a union card to every employee in
the electric building. At this same time Dorough began
wearing union insignia on his work clothes and on a
teamster vest which he wore every day. In addition,
Dorough was active in the plant posting union literature
36 The evidence showed the guilty employee to be a union supporter
just as Brewer.
in the snack area for the electric building. (See sec.
III,C,2.) Dorough testified that when he began his union
activity both Whitwell and Gray started watching him
and keeping him in his department. There were several
times that he was told by Whitwell and Gray to stop
talking to other employees who are working. Even when
he left the department for cigarettes or candy he was
told to go straight to the machine and don't talk to
anyone. In one instance Gray accompanied him for ciga-
rettes.
Besides the daily overtime there is also occasional Sat-
urday overtime. The foreman or leadman of each depart-
ment tells the employees there is overtime for Saturday
if they want it. If an employee wants to work he accepts
it, if not then he rejects it. Dorough was not asked by his
supervisor or leadman to work any Saturdays for 11 or
12 weeks beginning on February 24, although he was
willing and able to work on Saturdays. Dorough stated
that he requested, of Richie, to be given overtime but
Richie said he could not grant it. Dorough did begin to
get Saturday overtime and some daily overtime about
mid-May.
Dorough was absent on May 16 and 17. Each day
Dorough had his wife call in to report the absence. Dor-
ough testified that the company policy of reporting in
was lax and employees always called in when they
could. In his case he did not have a phone where he
lived but he did not have a phone number listed with the
Company for them to call. Dorough did not think the
Company knew he did not have a phone. Dorough
stated that he always had his wife call in through habit.
Although he considered it a bad habit to have someone
else call he stated that he was never told to call in
during the morning. Dorough reported for work Thurs-
day, May 18, and Whitwell accompanied him to person-
nel. He, Whitwell, and Stahl discussed the absences and
reporting of the absences and then Stahl told Dorough
he was suspended for 3 days for failure to promptly call
in. Stahl reminded him that he had been told before to
call in promptly and then told him to report for work
the following Tuesday. Dorough returned on Tuesday
and resumed heat running armatures. After several days
he finished the armatures and started to go to the auto-
matic undercutter but Richie told him he would not be
on the automatic machine any longer. Loftis, whom
Dorough had trained in March, was permanently as-
signed to operate the automatic undercutter. Since Dor-
ough trained Loftis, he and Dorough alternated operat-
ing the automatic machine. Now Dorough was assigned
to building generators and undercutting A-19 armatures
by hand. Dorough testified that the automatic undercut-
ter job is probably the cleanest job in the plant contrast-
ed with building generators and undercutting armatures
by hand which is a dirty, filthy job.
Dorough stated that in his 6 years he saw very few
employees disciplined. He did recall that he had been
previously disciplined by Whitwell for leaving his work
area; being absent and not calling in; quitting too early to
wash up; coming back late from lunch; and, for not
wearing his safety glasses. Prior to getting the automatic
undercutter all armatures were undercut by hand. With
MARATHON LETOURNEAU COMPANY 377
the exception of the A-19 armature, all armatures can be
undercut on the automatic machine. Dorough or one of
the other employees in 883G undercut the A-19 arma-
tures by hand. One of the other employees also heat runs
armatures when Dorough is busy with another job. Dor-
ough frequently answers the phone in 883G when em-
ployees call in to report an absence and the employees
usually ask that their supervisor be told they called.
Most calls are taken in the morning but he has received
several afternoon calls.
Employee Chester Jones testified that Dorough did
not work any overtime when he ran the automatic un-
dercutter. Jones himself did work the daily and Saturday
overtime whenever his foreman or leadman told him
overtime was needed and he saw several employees
wearing Teamsters buttons working the overtime. The
daily overtime was usually communicated to employees
before end of shift the day before. The Saturday over-
time was communicated on Friday when paychecks were
distributed. Jones stated that both the daily and Saturday
overtime was voluntary. Jones has worked with Dor-
ough since the new electric building was built in 1977
and since that time Dorough has done generator work,
heat running of armatures, assembly and the automatic
undercutter. There is not enough production to keep any
one employee busy on only one job. All employees do
all the jobs. Other employees besides Dorough and
Loftis had operated the automatic undercutter at times
when Dorough or Loftis were busy with something else.
Whitwell testified that he never told Dorough that he
could not work overtime on Saturdays. Whitwell knew
the daily overtime was voluntary but when he discov-
ered Dorough was not working any daily overtime he
disqualified Dorough from getting Saturday overtime.
Whitwell estimates that he disqualified Dorough for Sat-
urday overtime from 3 to 8 weeks. Dorough's suspension
in May was due to unauthorized absences according to
Whitwell. He considered that the call-ins were too late
therefore the absences were unauthorized. Although
there is no set time to call in very few employees fail to
call in at the start of the shift. Dorough's call-ins were at
2:30 p.m. and that's too late to help plan the shift. Short-
ly after Dorough's suspension Whitwell took him off the
automatic undercutter because he could not depend on
Dorough to work regularly or stay at his work station
when he was working. Loftis, whom Dorough trained,
was assigned the automatic undercutter permanently.
Whitwell stated that the automatic undercutter is not a
high skilled job and requires little time to learn. Loftis
became proficient in about a week.
Whitwell was aware of Dorough's union activity from
early January as a result of Dorough's handbilling, post-
ing, and wearing the Teamsters vest. He denied he kept
Dorough confined to the electric building but he did ad-
monish Dorough for talking too much to employees not
in his department. Whitwell stated that other supervisors
had complained of Dorough's wasting of their employ-
ees' worktime.
Foreman Gray testified that Dorough's wife called in
to report two absences on May 9 and 10. He received
both calls at 2:30 p.m. on each day. Mrs. Dorough told
Gray that James was looking for an apartment, had to
pay a traffic ticket and had some bills to pay. Gray went
on vacation May II and did not know of Dorough's sus-
pension. Gray stated that other employees in his depart-
ment who were absent always called in earlier to report.
He did not know of any employee absent and not calling
in who was not disciplined. Gray also testified that he
wrote up Dorough and talked to him on February 9
about being absent and not calling in. He did not, how-
ever, set a time for Dorough to call in.
Leadman Richie testified that Dorough asked him sev-
eral times about working overtime. Richie told Dorough
that only Gray or Whitwell could authorize overtime.
Pierce testified that he has been absent on several oc-
casions for personal reasons but he always called in by
10 a.m. and no later than II a.m. Several times he got
permission in advance when he knew he needed to be
off. Pierce knows that Carver has also been absent and
called in late and the foreman talked to him about calling
in promptly to report.
Analysis and Conclusions
The record evidence relating to the alleged discrimina-
tion against Dorough is not totally in dispute. The facts
surrounding each allegation are substantially uncontro-
verted. The real issue centers on Respondent's motiva-
tion in each instance.
The General Counsel contends that Respondent denied
overtime to Dorough during a period of time when Dor-
ough was active for the Union and that was Respond-
ent's sole reason; that Dorough's suspension also was
based upon his union activity, not the application of Re-
spondent's rules; and that Dorough was reassigned from
the automatic undercutter to a more menial and less
secure position because he was engaging in union activi-
ty. The General Counsel supports each allegation with
evidence that Dorough was a target for restraint to nulli-
fy his organizational activities.
Respondent counters that its actions were governed by
its rules of conduct known to its employees and were in
each case management prerogatives. Although admitting
Dorough's union activity Respondent professes it had
nothing to do with its determinations with respect to
Dorough.
It is undisputed that the overtime policy of Respond-
ent, whether daily or Saturday, is voluntary. Only in the
case of an emergency or a pressing need to satisfy a cus-
tomer's demands is overtime required of employees. The
record is void of any emergency or pressing need in
Dorough's department so the voluntary rule is applica-
ble. Dorough admittedly asked for overtime but did not
receive it.3 7 Richie told Dorough that only Gray or
Whitwell could grant an employee overtime. Whitwell's
testimony clearly shows that he did not want Dorough
working Saturday overtime and prevented him from
doing so. Whitwell's conduct constitutes denial of over-
:"' The evidence offered and rejected concerning Dorouglh's ride to
work. the Identity of the driver and her social involvement with D)or-
ough is ot relevant to Dorough's right to sork o icrtlnlc 'Ihe record is
vioid of evidence that an employec' placie f residence. mens of rallS-
port. or social life is considered hen offering ovcrtmee, especiall in
Dorough's case.
-
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time to Dorough. Although Whitwell based his denial to
Dorough on the fact that Dorough did not work over-
time during the week he did not explain the resultant
contradictions of the company policy. Whitwell knew
that Dorough was handbilling between shifts at 3:30 p.m.
and before shift at 7 a.m., when other employees were
accepting the voluntary overtime. It is clear that
Whitwell modified the company policy as it applied to
Dorough. The record shows that other employees who
displayed union insignia were not denied overtime by
Whitwell, so the reason for denial to Dorough must be
personal to Dorough. In the absence of evidence to es-
tablish the nature of this personal reason, I can only infer
that the reason applied to Dorough was his election to
work for the Union rather than work overtime for
Whitwell. I conclude that Whitwell's denial of Saturday
overtime to Dorough was contrary to the Company's
stated policy and motivated by impermissible reasons di-
rectly related to Dorough's union activity. I therefore
find that Respondent violated the Act by denying over-
time to Dorough during February, March, April, and
May.
The General Counsel claims that the suspension of
Dorough was motivated by Dorough's union activity not
the rule on absences. The General Counsel relies on evi-
dence in the record to support a conclusion that Re-
spondent disciplined some employees and did not disci-
pline others making Respondent's enforcement of disci-
pline against Dorough suspect. Counsel specifically
refers to the cases of Howard Young and Richard Wade
and the testimony of Haskell. Young was not guilty of
failure to call in promptly which accounts for any lack
of discipline relative to his reporting absences. Haskell's
testimony was too general to be capable of assessment
and therefore of no probative value. In addition Gray
credibly testified that few employees fail to call in
promptly to report absences. Gray's testimony finds sup-
port in Dorough's personal account of other employees
reporting absences when he answers the phone. The
General Counsel's reliance upon Wade's absences is not
support because Wade was disciplined as Dorough had
been prior to the suspension. Dorough's own statement
of his understanding of the rule personifies the prompt-
ness with which he would act. He personally never
called but directed his wife to do it when she could get
around to it. Dorough's intent then is clear; to report ab-
sences at his convenience without regard for the rules.
Dorough's reliance upon his impression that enforcement
of the rule was lax is not supported by the record. As-
suming such laxity was supported in the record I would
still hold an employee to a higher degree of responsibili-
ty to his job than that shown by Dorough whether he
supported the union or not. One hour before shift ends
does not satisfy the most general interpretation of pur-
pose. I conclude that Dorough's conduct warranted sus-
pension and Respondent's discipline was not motivated
by union activity on the part of Dorough. I find support
for this conclusion in the fact that Dorough knew it
would be difficult for him to report absences under any
reporting rule because he did not have a telephone, yet
he kept his phoneless condition to himself. His silence
prevailed in the face of prior discipline for the identical
infraction. Accordingly, I find that Respondent did not
violate the Act by suspending Dorough on May 11 for
failure to promptly report his absences.
The General Counsel's remaining allegation deals with
Dorough's reassignment from the automatic undercutter.
At the outset I note that Dorough had no assignment to
the automatic undercutter (certainly not exclusive of
other employees) but rather was the first employee
trained on the machine. The record is abundantly clear
from Dorough's testimony as well as all others, that sev-
eral employees performed the job of undercutting on the
automatic machine from its inception to the present.
Dorough himself testified that, after he trained Loftis,
they would alternate the undercutting. The undisputed
facts that Dorough was assigned to Department 883G
and that the automatic machine was in Department 855
further supports the lack of an exclusive assignment to
Dorough. Nonetheless, the General Counsel claims that
Dorough was relieved of the automatic undercutter and
assigned a more menial and less secure position. The job
tasks that Dorough performed after being relieved of the
automatic undercutter were the identical job tasks he
performed before and during his tenure on the automatic
undercutter. Also no one job task in Department 883G
or 885 requires an employee's performance for the entire
day. Especially the automatic undercutter which is oper-
ated on an average of two hours. Dorough's reference to
the dirty job of undercutting the A-19 armatures by hand
is only supportive of Dorough's desires not the more
onerous nature of undercutting by hand. He and the
other employees have always undercut the A-19 arma-
tures by hand because they cannot be cut on the auto-
matic machine. I cannot, and do not, conclude that Dor-
ough's work assignments after being removed from the
automatic machine are more menial or in some way less
secure of his employment position. It does not appear to
me that Dorough's employment position has changed at
all. He simply has one less job task to perform. Howev-
er, Whitwell's motivation in removing Dorough is at-
tacked by the General Counsel as retaliation for Dor-
ough's union activity. The record shows that the work
for the automatic machine is not a daily requirement nor
does it accrue at any given time. The need for constant
coverage by an employee, or employees, qualified to op-
erate the machine is abundantly present in the record.
Dorough has exhibited a proclivity to be absent without
informing supervision. Such a circumstance creates pro-
duction scheduling problems in any plant. Whitwell's
stated reason for removing Dorough was the undependa-
bility and unreliability of Dorough to be on the job.
Dorough's absence from the job was not related to his
union activity. Dorough's testimony evinces that each
absence was for personal family reasons. I find
Whitwell's testimony to be credible with ample support
in the record. Dorough is not privileged to act in any
way he chooses and be insulated from reaction by his su-
pervision because he engages in union activity. I con-
clude that the General Counsel has failed to show that
Whitwell acted discriminatorily in removing Dorough
------ ---
MARATHON LETOURNEAU COMPANY 379
from the automatic undercutter machine. I find therefore
that Respondent has not violated the Act.3 8
The General Counsel argued that Respondent's use of
the EIR's to detail adverse information it had on the dis-
criminatees was a built-in preventative maintenance pro-
gram against union activity. By keeping a dossier of ad-
verse material on employees, Respondent could always
have ready documentation to justify an adverse action
against an employee, especially where such employee
was involved in union activity. The General Counsel's
argument seems to be grounded upon his assumption that
the EIR's were surreptitiously maintained. The record
shows the contrary. It is true that Respondent's rule did
not require the supervisor to show the EIR to the affect-
ed employee. The procedure followed by each supervi-
sor depended upon his personal approach to discipline.
Some discriminatees were shown EIR's by their foreman
and at least made aware that they were being written up.
Such disclosure of the material is clear from the testimo-
ny of those discriminatees that recalled the specific inci-
dents related in the EIR's. Albeit, the better practice
may be full disclosure and acknowledgement by the em-
ployee at the time of the event, there is nothing in the
Act making such a practice mandatory. Neither does the
Act proscribe the codification of employees' infractions
by the employer. Therefore, I reject the General Coun-
sel's argument for an inference based upon Respondent's
method of maintaining the employee information re-
cords.
ADDITIONAL CONCILUSIONS OF LAW
1. Respondent, by coercively interrogating Wagnon
concerning his union sympathies, through Foreman
Bolton, has engaged in an unfair labor practice in viola-
tion of Section 8(a)(1) of the Act.
2. Respondent, by restraining the wearing of union
buttons, by Wade, through its Foreman Alford, has en-
gaged in an unfair labor practice in violation of Section
8(a)(1) of the Act.
3. Respondent, by maintaining and enforcing its rule
#13 which prohibits employees from engaging in oral so-
licitations in work areas, has interfered with, restrained,
and coerced its employees in the exercise of their Section
7 rights in violation of Section 8(a)(1) of the Act.
4. Respondent, by maintaining and enforcing its rule
#14 which prohibits distribution or posting of literature
in nonworking areas, has interfered with, restrained, and
coerced its employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act.
5. Respondent, by disciplining its employee Wagnon
under rule #13 for engaging in oral solicitations in work
areas, has interfered with, restrained, and coerced its em-
ployees in the exercise of their Section 7 rights in viola-
tion of Section 8(a)(1) of the Act.
a" The "oven" evidence proffered by the General Counsel and argued
to show further relegation of Dorough to menial tasks is not in support
of any allegation of an unfair labor practice. Howeser, if it were consid-
ered it would have to be in conjunction with prior testimony of he
"oven" functions and Dorough's own testimony that he asked to be per-
manently transferred to the oven All of which is contrary to a finding of
a more onerous job assignment
6. Respondent, by enforcing its rule #14 against distri-
bution or posting of union literature in a nonwork area,
through Foreman Impson, has interfered with, restrained,
and coerced its employees in the exercise of Section 7
rights in violation of Section 8(a)(1) of the Act.
7. Respondent, through Foreman Whitwell, threatened
employee Loftis with discharge in violation of Section
8(a)(1) of the Act.
8. Respondent, by the discharges of Howard Young on
January 23, Ulysses Wagnon, Roger Doss, Richard East,
and Richard Wade on February 10 has engaged in dis-
crimination in regard to tenure of employment or other
terms or conditions of employment thereby discouraging
membership in or activities on behalf of a labor organiza-
tion in violation of Section 8(a)(1) and (3) of the Act.
9. Respondent, by denying Saturday overtime to Dor-
ough during the months of February, March. April, and
May, has engaged in discrimination in regard to terms
and conditions of employment thereby discouraging
membership in or activities on behalf of a labor organiza-
tion in violation of Section 8(a)(1) and (3) of the Act.
10. The General Counsel has failed to prove by a pre-
ponderance of the evidence the allegations in the com-
plaint alleging additional interrogations, restraints,
threats, surveillance, and discharges.
11. The aforesaid violations found constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
REHMED)Y
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminatorily discharged
Howard Young, Ulysses Wagnon, Roger Doss, Richard
East, and Richard Wade, I find it necessary to order it to
offer them full reinstatement to their former positions or,
if those positions no longer exist, to substantially equiva-
lent positions, with backpay computed on a quarterly
basis and interest thereon to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977),39 from January 23 and February 10, the respec-
tive dates of discharge to the date of proper offer of re-
instatement.
Further, Respondent having discriminatorily denied
Saturday overtime to its employee, James Dorough, I
find it necessary to order it to pay backpay computed in
the same manner as set forth above, for each Saturday
worked by the employees of Department 883G or 885
from February 24 until a date in May when Dorough
was offered Saturday overtime work.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
9 Sec, generally isl Plumbin, IJ ealng C, 13 N RH 716 (19h2)
_
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER4 0
The Respondent, Marathon LeTourneau Company,
Longview Division, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
membership, activities, or sympathies.
(b) Restraining employees in the use and wearing of
union insignia.
(c) Maintaining, giving effect to, or enforcing its no-
solicitation rule #13, which forbids employees from en-
gaging in union solicitation in work areas during non-
worktimes.
(d) Maintaining, giving effect to, or enforcing its no-
distribution rule #14, which forbids employees from dis-
tributing or posting literature in nonworking areas of the
plant.
(e) Threatening employees with discharge for engag-
ing in union activities.
(f) Discharging, laying off, or otherwise discriminating
against employees in order to discourage membership in
or activities on behalf of Local Union 745, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America or any other labor organization.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind the no-solicitation rule #13 of its rules and
regulations to the extent that such rule prohibits union
solicitations by employees in work areas during non-
worktime.
(b) Rescind the no-distribution rule # 14 of its rules
and regulations to the extent that such rule prohibits dis-
tribution or posting of literature in nonworking areas of
the plant.
(c) Rescind and expunge from the record of Ulysses
Wagnon the Employee Information Record relating to
40 In the event no exceptions are filed as provided by Sec. 102.46 of
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as pros ided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
discipline for violation of Respondent's no-solicitation
rule #13 issued on February 1.
(d) Offer to Howard Young, Ulysses Wagnon, Roger
Doss, Richard East, and Richard Wade, if it has not al-
ready done so, immediate and full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings or benefits they may
have suffered by reason of Respondent's discrimination
against them as set forth in the Remedy section of this
decision.
(e) Make whole James Dorough for any losses of earn-
ings or benefits he may have suffered by reason of Re-
spondent's discrimination against him as set forth in the
Remedy section of this Decision.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to facilitate the effectuation of the Order
herein.
(g) Post at its plant in Longview, Texas, copies of the
attached notice marked "Appendix." 4 ' Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT I Al.SO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
4 1In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."