Martin-Brower Company, The

National Labor Relations Board - Board Decisions

Aug 6, 1982

263 N.L.R.B. 194 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Martin-Brower Company and Warehouse Em-
ployees, Local Union No. 730 of Washington,
D.C. a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Cases 5-CA-12694, 5-CA-12736,
and 5-CA-12737
August 6, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On December 10, 1981, Administrative Law
Judge Nancy M. Sherman issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt her recommended Order. 2
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 and
hereby orders that the Respondent, The Martin-
Brower Company, Manassas, Virginia, its officers,
agents, successors, and assigns, shall take the action
I Respondent asserts that the Administrative Law Judge's resolutions
of credibility, findings of fact, and conclusions of law are the result of
bias. After a careful examination of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because the Administrative Law Judge resolved
important factual conflicts in favor of the General Counsel's witnesses.
As the Supreme Court stated in N.L.R.B. v. Pittsburgh Steamship Compa-
ny, 337 U.S. 656, 659 (1949), "([Total rejection of an opposed view
cannot of itself impugn the integrity or competence of a trier of fact."
Furthermore, it is the Board's established policy not to overrule an ad-
ministrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing her findings.
' In a footnote marked with an asterisk in the attached Decision, the
Administrative Law Judge discussed certain matters not directly relevant
to the issues herein and expressed her desire that said footnote be excised
from the Decision. Inasmuch as the matters discussed in the footnote in
question were not relied on by the Administrative Law Judge or any of
the parties herein, and in the absence of exceptions to the suggestion that
the footnote be excised, we hereby order that said footnote be physically
excised from the Decision of the Administrative Law Judge.
In accordance with his separate opinion in Beasley Energy. Inc., d/b/a
Peaker Run Coal Company. Ohio Division #1, 228 NLRB 93 (1977),
Member Fanning would issue a prospective bargaining order.
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
263 NLRB No. 25
set forth in the said recommended Order, except
that the attached notice is substituted 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.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT threaten you with discharge
for union activity, give you the impression of
surveillance over union activity, solicit you to
take grievances to us rather than attempt to
obtain redress through organizing a union, or
interrogate you regarding union activity in a
manner constituting interference, restraint, or
coercion.
WE WILL NOT discharge you, demote you,
or otherwise discriminate with regard to your
hire or tenure of employment or any term or
condition of employment, to discourage mem-
bership in Warehouse Employees, Local Union
No. 730 of Washington, D.C. a/w Internation-
al Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or
any other union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
the rights guaranteed you under the National
Labor Relations Act.
WE WILL offer employees Gary William
Burrell, Ross Alexander Cummings, William
Leo Heskett, Paul Bryant Jolley, Jr., Robert
Ivar Lohman, Charles Franklin Payne, Philip
Isaac Posey, Kenneth Ray Walton, and (if we
have not already done so) Ernest Richard
(Buck) Zoretic reinstatement to the jobs of
which they were unlawfully deprived or, if
194
THE MARTIN-BROWER COMPANY
such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their se-
niority or other rights and privileges previous-
ly enjoyed, and WE WILL make them whole,
with interest, for any loss of pay they may
have suffered by reason of the discrimination
against them.
WE WILL remove from the personnel folders
of Burrell, Cummings, Heskett. Jolley,
Lohman, Posey, Walton, and Zoretic, and give
to them, the documents which we prepared to
justify or memorialize the false reasons we
gave for their discharge and Lohman's demo-
tion.
WE WILI., on request, bargain with Ware-
house Employees, Local Union No. 730, as the
only representative of the employees in the ap-
propriate unit, and embody in a signed agree-
ment any agreement reached. The appropriate
unit is:
All warehousemen and forklift operators
employed by us at our Manassas, Virginia,
location, excluding all office clerical em-
ployees, truckdrivers, receiving clerks, ship-
ping clerks, guards, and supervisors as de-
fined in the Act.
THE MARTIN-BROWER COMPANY
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge:
These consolidated cases were heard before me in Wash-
ington, D.C., and in Woodbridge, Virginia, on February
23-26 and March 16-18, 1981, pursuant to charges filed
on October 17, 30, and 31, 1980; a complaint issued in
Case 5-CA-12694 on December 18, 1980, and amended
from time to time thereafter; and a complaint issued in
Cases 5-CA-12736 and 5-CA-12737 on January 7, 1981,
and amended from time to time thereafter. As so amend-
ed, the complaints allege, inter alia, that Respondent
Martin-Brower Company violated Section 8(a)(1) of the
National Labor Relations Act, as amended (the Act), by
interrogating employees about activities on behalf of
Warehouse Employees. Local Union No. 730 of Wash-
ington, D.C., a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (the Union), by threatening employees with discharge
for union activity, by creating the impression of surveil-
lance over union activity, and by soliciting grievances
from employees in order to discourage union activity. As
amended, the complaints further allege that Respondent
violated Section 8(a)(3) and (1) of the Act by requiring
employees to fill out a new form when they picked
orders, by demoting employee Robert Ivar L.ohman, and
by discharging employees Lohman, Ernest Richard Zor-
etic, Ross Alexander Cummings, Paul Bryant Jolley, Jr.,
Gary William Burrell, William Leo Heskett, Philip Isaac
Posey, Charles Franklin Payne, and Kenneth Ray
Walton, to discourage union activity. Respondent admits
that it required the new form, demoted Lohman, and dis-
charged all the named employees except Payne; but
denies in its answers the independent 8(a)(l) allegations;
contends that the form requirement, the demotion, and
the conceded discharges were for lawful reasons; and
further contends that Payne voluntarily resigned. One of
the complaints further alleges that Respondent refused to
bargain with the Union, in violation of Section 8(a)(5) of
the Act. The record contains no evidence of a bargaining
demand. The brief filed by counsel for the General
Counsel in effect withdraws the 8(a)(5) allegation, but
seeks a bargaining order to remedy the alleged 8(a)(1)
and (3) violations.
On the basis of the entire record, including the demea-
nor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and Respondent, I
hereby make the following:
FINDINGS OF FACT
I. JURISDIC1 ION
Respondent is a Delaware corporation engaged in the
interstate and intrastate distribution of food and paper
products for fast-food restaurants from various locations,
including the Manassas, Virginia, facility involved
herein. In the course and conduct of its Manassas, Vir-
ginia, business operations, Respondent annually performs
services valued in excess of $50,000 outside Virginia. I
find, as Respondent admits, that Respondent is engaged
in commerce within the meaning of the Act, and that ex-
ercise of jurisdiction over its operations will effectuate
the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background: the Union's Majority Status, Alleged
Independent 8(a)(1) Violations
Respondent's Manassas warehouse and distribution
center services McDonald's fast-food restaurants. Ordi-
narily, this facility serves only the mid-Atlantic area.
However, between June 2 and September 20, 1980 ,1 the
union-represented truckdrivers of M & M Trucking
Company were on strike. During this period, Respondent
took on responsibility for servicing the 115 McDonald's
restaurants normally served by M & M.
About September 29, after the M & M strike had
ended, an M & M driver came to Respondent's ware-
house to pick up some products which were used by the
restaurants normally serviced by M & M but not used by
the restaurants normally serviced by Respondent. The M
& M driver told employee Burrell that the M & M em-
ployees' working conditions had materially improved
after their union and M & M "had got things together
and got it straight." The two discussed the employees'
"problems" at Respondent's warehouse, and the M & M
All dates hereafter are 1980, unless otherwise specified.
195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driver told Burrell how to go about getting a union at
Respondent's facility.
Thereafter, while the employees were on their break
and the M & M driver was still on the premises, he and
Burrell discussed the matter with employees Payne,
David Cole, Lewis E. Huffer, Jr., John Shutlock, and
others, in the breakroom of the transportation office.
During this discussion, Dick Morrison (admittedly a su-
pervisor) walked into the room a couple of times. Cole,
who had once been a member of the Union, supplied the
Union's telephone number, and the M & M driver used it
to telephone the Union from the breakroom upstairs. The
driver related some of the alleged problems of Respond-
ent's employees, alleged that some of them were
"scared" and gave the Union Burrell's home telephone
number.
Later that afternoon, Union Representative Murry
telephoned Burrell at his home. Murry said that the first
thing to do in order to organize the facility was to obtain
the employees' names and telephone numbers in order to
send out authorization cards. Burrell obtained such infor-
mation before work and during his breaks. Among the
employees who responded favorably to his prounion ob-
servations were Payne and Walton. David Hougham (ad-
mittedly a supervisor) testified that on September 29
Payne said that he had made plans to take care of some
of the problems and that it concerned a union, and that
Hougham replied he did not want to talk about it.
At Burrell's instance, he, Payne, and Walton went on
Thursday, October 2, to a nearby motel, the Holiday
Inn, and reserved a room for a union meeting to be held
on the morning of Saturday, October 4. They rented the
room in Respondent's name, so that Respondent's em-
ployees would know where to come. As the three were
leaving, Warehouse Manager Jeffrey E. Streilein, admit-
tedly a supervisor, pulled his car into the parking lot,
and waved at them as he entered the building. All three
waved back. The three employees had expected to pay
for the room themselves, but, when they arranged to be
addressed at the meeting by the union president, he said
that he would pay for the room.
Thereafter, Burrell and Payne talked to second-shift
employee Joe Lenk, who took care of telling employees
on his shift about the meeting, and to third-shift employ-
ee Posey, who relayed this information to the employees
on his shift. Before work and during breaks, first-shift
employees Burrell and Payne told the employees on their
shift when the meeting was to be held, and if they
wanted to come they would not be fired, "don't worry
about it."
The parties stipulated that as of October 6, 36 named
employees were in a unit (described in Conclusion of
Law 6, infra) which is admittedly appropriate for collec-
tive-bargaining purposes, and which consists essentially
of Respondent's warehousemen. On October 4, 19 of
these employees signed union authorization cards whose
authenticity and operative effect are conceded by Re-
spondent.2 Among the employees who signed cards at
2 The cards were headed "Authorization for Representation under the
National Labor Relations Act." Above the blanks calling for the employ-
ee's signature and other identifying data, the cards stated:
the October 4 meeting were all of the alleged discrimina-
tees except Walton and Zoretic. Among those who
signed union cards on October 4 were eight employees
(Altizer, Carlson, Carper, Casey, Cole, Reid, Shutlock,
and White) who were still on Respondent's payroll as of
the March 1981 hearing. Also on October 4, employee
Carl Fisher signed a card.3
On October 6, unit employees Huffer (still employed
by Respondent as of March 1981) and Mann signed
cards. Also, unit employee Williams testified that on Oc-
tober 6 he read, signed, and dated a union card and that
as to the printed portions thereon, it looked like another,
admittedly authentic authorization card which was re-
ceived into evidence. He further testified that employee
Posey had given the card to him with the representation
that it was a union card and had showed him how to fill
it out, and that after filling it out Williams returned it to
Posey, who put it on his clipboard. Posey testified that
on October 6 Williams read and signed his card and gave
it back to Posey, that he put it on his clipboard and set it
on the inside of his truck, that the clipboard fell out
when the truck hit a bump, and that Posey looked for
the clipboard but could not find it. Williams' card will be
counted. Hedstrom Company, a subsidiary of Brown
Group, Inc., 223 NLRB 1409, 1411 (1976), modified and
remanded 558 F.2d 1137 (3d Cir. 1977); Aero Corporation,
149 NLRB 1283, 1291 (1964), enfd. 363 F.2d 702 (D.C.
Cir. 1966), cert. denied 385 U.S. 973 (1966).
Alleged discriminatee Walton signed a union card on
October 7, but his job classification of mechanic is ex-
cluded from the unit. Alleged discriminatee Zoretic
signed a card on October 10, and backdated it October 5,
the date when he had expected Burrell to comply with
Zoretic's request therefor (see infra sec. II,B,I).
The October 4 Holiday Inn union meeting for the
warehouse employees was held in the morning. That
afternoon, admitted Supervisor Leslie C. Randall, Jr.,
who was then Respondent's transportation manager, met
at the Holiday Inn with six or seven of Respondent's
drivers to discuss their grievances and problems. As Ran-
dall sat down, the drivers told him that a group of ware-
house employees had held a union meeting at the Holi-
day Inn that morning. Randall asked who had attended,
but the drivers refused to tell him. On the following day,
October 5, a driver (not in the appropriate unit) told Su-
pervisor Streilein that the driver had been invited to a
union meeting which had been held in Manassas, but had
declined to attend. Streilein thanked him for the informa-
tion, which Streilein reported on Monday, October 6, to
Edward L. Werner, who was the manager of the Manas-
I, the undersigned employee of Company: Address of
Company: authorize Local affiliated with the
[Teamsters] to represent me in negotiations for better wages, hours
and working conditions.
Each card received in evidence has the Union's local number in the ap-
propriate blank. Although the physical appearance of some of the cards
suggests that the employee himself did not fill in the local number, at
least when he signed the card, Respondent does not contend as to any
card that this space was blank when the card was signed.
I My finding as to Fisher's card is based on a comparison between his
purported signature and other entries on that card and exemplars of his
signature in Respondent's personnel file. See Justak Brothers and Compa-
ny, Inc., 253 NLRB 1054, 1079-80 (1981).
196
THE MARTIN-BROWER COMPANY
sas distribution center and Streilein's immediate superior.
Also on October 6, Randall told Werner, Randall's im-
mediate superior, that some warehouse employees had
held a union meeting on October 4. Werner asked how
Randall had found out and how he was involved. Ran-
dall said that he had found this out during a meeting
with the drivers. Werner asked how he knew about the
drivers having a meeting and how he had got involved
with the whole situation. Randall replied that the drivers
had called him on that Saturday afternoon and asked him
to meet with them. Werner asked who had attended the
warehousemen's union meeting, and Randall replied that
he did not know.
My findings in the preceding paragraph are based on
the testimony of Streilein and Randall, who were called
as adverse witnesses by the General Counsel. They were
the General Counsel's second and third witnessses, re-
spectively, and were sequestered during the other wit-
nesses' testimony. The General Counsel's first witness
was Werner, who was called as an adverse witness and
who thereafter was present during almost the entire
hearing. Werner initially testified for the General Coun-
sel that he had heard nothing about union activity, in-
cluding rumors, until he received the Union's representa-
tion petition on October 20. Then, he testified that,
before October 20, the only thing he could recall which
might be considered an organizing attempt was Randall's
October 4 meeting with the drivers. Thereafter, Supervi-
sors Streilein and Randall testified to the foregoing Octo-
ber 6 reports to Werner about the union meeting, and
Warehouse Supervisor David Hougham testified that
about October 11, Werner told him about "rumors" of a
union meeting. Werner was Respondent's last witness.
On cross-examination by the General Counsel, he ad-
mitted having heard prior to October 7 about the ware-
housemen's October 4 union meeting.
About 8 or 9 a.m. on Monday, October 6, employee
Burrell told Warehouse Manager Streilein that he could
tell Werner that the employees had had a meeting at the
Holiday Inn. Streilein said that he knew all about the
meeting at the Holiday Inn and about the union cards
being signed. Burrell told Streilein to tell Werner that
Burrell was going to vote for the Union.4 As described
in detail infra, Respondent discharged employees Burrell
and Heskett later that day; discharged Cummings, Jolley,
and Posey in the afternoon of October 7; and demoted
Lohman about 8:30 p.m. that day.
October 7 was also employee Payne's last day of em-
ployment (see infra, sec. II,B,4,e). At or about 11 p.m.,
he was called to Werner's office. During this discussion,
Werner "kept asking" Payne where he had been that
weekend. Eventually, Payne told Werner that the em-
ployees had had a union meeting. Werner said that he al-
ready knew about "all your meetings," and "if you
wanted somebody to talk to why didn't you come to me
[I] was back in town Friday." Payne said that he
had not known that Werner was back. Werner asked
where he had been on Thursday, whether he was renting
any rooms. Payne (who on Thursday, October 2, had
4 This finding is based on Burrell's testimrnony. Streilen testified that he
could not recall that Burrell imparted his feelilng atblul the Union.
participated in renting the Holiday Inn room where the
meeting was held) untruthfully replied that he did not re-
member. Werner told him not to worry about it, and
asked what he and Burrell had been doing in the trans-
portation office on Tuesday. 5 Payne again said that he
did not remember.6
Employee Reid did not attend the October 4 union
meeting, but he signed a union card that day at Cum-
mings' solicitation. The discharges during the week fol-
lowing the union meeting caused him to go to work
every day with what he testimonially described as "a
sick feeling in my stomach not knowing whether I
would be working for one day or one hour to the next."
About October 11, he approached Supervisor Hougham
and, in Center Manager Werner's presence, asked wheth-
er Reid could expect to keep his job. Reid received no
answer. A day or two later, Reid was approached at his
work station by Werner, who asked what Reid knew
about the union activities. Reid said that he had been
"approached by them," but did not know a whole lot
about the union activities. Werner asked why Reid had
not attended the union meeting. Reid replied that he did
not think it was in his best interest. Werner said that
Reid was a good worker, that he must be an "angel to be
able to keep [his] head straight and work in the sur-
roundings that [he] was in and not get [himself] into
trouble," and that Reid "was the most outstanding repre-
sentative of the human being that [Werner] had run
across." Werner asked Reid if he had known about the
union meeting. Reid said yes. Werner asked why Reid
had not come to Werner and told him about it. Reid said
that he did not want to waste his breath. Reid testified
that he made this remark because he had received no re-
sponse from any of several members of management
whom he had approached about continuing "problems."'
The last alleged discriminatory discharge (Walton) oc-
curred on October 15. On October 25, during an em-
ployee meeting where employees were given a new
benefits booklet and a printed employee handbook,
Werner said that he wanted to try to indoctrinate the
new employees who had been hired on to replace certain
other employees. Werner said that he wanted to make
sure everybody got out to a good sound start, that cer-
tain employees had taken it upon themselves to attend
meetings that were not held or authorized by him, and
that any person taking part in any such meetings would
s As previously noted, the transportation office was the scene of the
discussion among employees, including Payne. which was observed by
Morrison and led to the employees' first contact with the Union Burrell
testified that this discussion took place on September 29. a Monday.
6 My findings regarding Werner's statements are based on Payne's ies-
timorvy. I do not credit Werner's denials (see infra fn. 87).
7 My findings as to this Reid-Werner conversation are based on the
testimony of Reid, who at the time of the hearing was still in Respond-
ent's employ and was testifying under subpoena. Werner denied having
any conversation with Reid on October 6 or 7 concerning attendance at a
union meeting, union activities, or coming to Werner with reports of the
Union To the extent this ma) constitute a denial of Reid's testimony
about the consersation. which he placed as hasing occurred about a
week after the October 4 union meeting "glse or take a few days" and I
to 3 days after several third-shift terminations (third-shift employee Jolley
was terminated on OLtober 8), for demeanor reasons I credit Reid. See
alst injira at fn 87
197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be dealt with in a similar manner. He then said, "you
know what I mean, don't you?"8
B. The Alleged Discriminatory Demotion and
Discharges; Further Alleged Interference. Restraint,
and Coercion
1. The discharge of Zoretic; alleged unlawful
interrogation by Supervisor Morrision
Zoretic started working for Respondent on June 17,
1980, at $6 an hour. He was hired as a part-time employ-
ee, but the record suggests that he was a full-time em-
ployee at the time of his October 1980 discharge. About
3 or 4 weeks after Zoretic's hire in mid-June, leadman
Reid (not claimed to be a supervisor) told him that he
was "doing good"; that he was fast, was efficient, and
got the job done. Between July 7 and August 25, 1980,
Zoretic was off the job because of an on-the-job injury.
After his return, Zoretic heard "talk" from fellow em-
ployee Posey, and perhaps others, which led Zoretic to
think that Werner was going to fire him because of this
absence. However, effective September 17, 1980, 90 days
after his hire and about 3 weeks before his October 7 dis-
charge, he received a 48-cent increase, explained in his
personnel folder as "90 days increase per personnel prac-
tices," over his $6 starting rate. Moreover, 2 or 3 weeks
before Zoretic's discharge, Warehouse Manager Streilein
told him that he was "doing great" and that Streilein had
"no complaints whatsoever." Zoretic testified without
contradiction that when he did picking work, he was one
of the fastest pickers.
Zoretic's duties required him to use a pallet jack,
which is a miniature forklift. He preferred to use a par-
ticular pallet jack, which was also used by other employ-
ees. In April 1980, this and other pallet jacks had been
repainted by several of Respondent's supervisors, includ-
ing Hougham on his own time. By about the third week
in September 1980, the face of the pallet jack preferred
by Zoretic had been marked up by other employees with
profanity and "remarks of higher ups."9 Zoretic asked
one of the mechanics to repaint the pallet jack. At that
time, all the others were being repaired if necessary and
completely repainted; and the mechanic said that when
he got around to it, he would repaint all of Zoretic's pre-
ferred pallet jack.
About the middle of the last week in September, and
after the elapse of 4 or 5 days without any action regard-
ing Zoretic's preferred pallet jack, Zoretic arrived at the
warehouse early, but was forbidden to punch in until the
regular starting time. He took from the mechanic's cage
the only paint which Zoretic could find, a spray can of
red paint, and spray-painted part of the pallet jack.
which was yellow. Then, he took a Magic Marker, and
marked on the red-painted area his initials and the words
' My findings regarding the content of Werner's speech are based on
Reid's testimony. Streilein, Hougham, and Randall were also present at
the October 25 meeting, but were not asked about it. For demeanor rea-
sons, I do not credit Werner's uncorroborated denials. See also infra at
fn. 87.
9 This finding is based on Zoretic's testimony. For demeanor reasons, I
do not accept Hougham's denial. Streilein testified that he did not recall
whether that particular pallet jack had marking on it, but that he did not
know that particular jack by name and number
"2nd shift."' ° The markings which Zoretic put on the
pallet jack did not affect the way it ran.
Later that say, Supervisor Hougham asked Zoretic if
he knew who had painted the pallet jack. Zoretic said
that he had. Hougham did not write him up at that time.
A day or two later, on or about after October 2, a notice
appeared on the employee bulletin board that employees
were not to paint or mark on any equipment in the ware-
house. Also posted was a photograph (taken by
Hougham with a company-owned camera) of the pallet
jack after Zoretic had spray-painted and initialed it.
Center Manager Werner testified that after Zoretic de-
faced the pallet jack, Werner and Streilein decided to
give Zoretic a written reprimand therefor and to require
him to repaint the pallet jack.
On October 2, Zoretic received a telephone call at
home from a caller who said that he worked for Re-
spondent and was known by Zoretic but refused to iden-
tify himself. The caller asked how Zoretic felt about a
union getting in. Zoretic said that he would listen to
both sides, and would favor a union if it could help him
with his money problems. The caller said that a union
meeting would be held at 9 a.m. on October 4 at the
Holiday Inn in Manassas.
When Zoretic went to work that night, he told Super-
visor Morrison that Zoretic had received a telephone
call asking how he felt about a union. Morrision asked
what the caller had said. Zoretic replied that the caller
had said there was to be a meeting. Zoretic asked wheth-
er his job security would be affected if the Union tried to
get in. Morrision said, "No, we have been expecting it
and there is nothing we can do about it . . . if you hear
anything else, let me know." Morrision also asked Zore-
tic if he knew "where (the Union] was at"; he untruthful-
ly said no. t
Zoretic did not attend the October 4 union meeting.
On October 5, he was present in a group of several em-
ployees, including Heskett, while they were doing their
warehouse paperwork. Using a normal, happy tone of
voice, they were discussing how well the union meeting
had gone. Supervisor Hougham was in the vicinity.
Later, Supervisor Morrison encountered Zoretic and
asked if he heard anything else. Zoretic said no.
Also on October 5, Supervisor Hougham gave Zoretic
an "Employee Disciplinary Report" filled out and signed
by Warehouse Manager Streilein. The document was
dated October 2, 1980; described Zoretic's action in
painting and initialling the headpiece of the pallet jack;
and stated that it was a "warning" and "The next inci-
dent of this nature will result in a 3-day suspension." The
document further stated that this was Zoretic's first of-
fense. Hougham told Zoretic that this was a warning
letter for painting the pallet jack, and "just sign it. There
is nothing to really worry about." Hougham said nothing
O0 The initials were "B.Z." Zoretic's nickname is "Buck "
"i My findings as to the Morrsion-Zoretic conversation are based on
Zoretic's testimony. Although Zoretic's two piehearing statements did
not refer to Morrison's inquiry about where the union meeting was to be
held, Zoretic appeared to be a wholly honest witness, whereas Morri-
son's demeanor was unpersuasive and his testimony was as to certain
critical matters internally inconsistent. I discredit Morrison's version of
the conversation to the extent it is not corroborated by Zoretic.
198
THE MARTIN-BROWER COMPANY
about discharge, did not indicate in any way that further
action would be taken, and did not ask him to speak to
anyone else in management. Without raising his voice in
any way, Zoretic signed the document.
Employee Burrell was supposed to bring Zoretic a
union card for his signature on October 5, but did not do
so. That evening, Zoretic telephoned him and arranged
for him to bring one down the next day, October 6. By
the time Zoretic got to the warehouse on October 6,
Burrell had been terminated without having a chance to
give Zoretic a card.
Immediately after Zoretic punched out on October 6,
Supervisor Hougham said that he had orders that Zore-
tic had to paint the pallet jack over again. Hougham did
not tell Zoretic who had issued these orders; Hougham
testimonially attributed them to Streilein, who testimon-
ially attributed them to Hougham. (As previously noted,
Werner testified that he and Streilein had decided to
impose this requirement.) Zoretic said that he had al-
ready received a warning letter, and asked whether he
had to repaint the pallet jack too. Hougham said yes.
Zoretic asked if this said, "okay, I guess I still have to do
it then." He did not raise his voice or use any obsceni-
ties. Hougham gave him some yellow paint and a brush,
and said that when Zoretic had finished painting the
pallet jack he was to tell Hougham about it and could
then go home. Zoretic painted almost the entire pallet
jack, and put several coats of yellow paint over the red
paint to cover it.I2 Immediately after he finished paint-
ing it, another employee drove it away. Zoretic then re-
ported to Hougham that the repainting job was finished,
and Hougham showed him where to get the brush clean-
er. He cleaned his brushes, put everything away, went
out the door, and headed for the gates.
At this point, Morrison sent Hougham to call Zoretic
back in. When Hougham told Zoretic that Morrison
wanted to see him, Zoretic went back into the building
and went into the receiving office to see Morrison, who
asked whether Zoretic was the one who painted the
pallet jack. When Zoretic said yes, Morrison told him
that he was terminated. Zoretic said, "what?" Morrison
said that he was fired. Morrison said nothing about Zore-
tic's being insubordinate, and gave him nothing in writ-
ing. Zoretic did not raise his voice at Morrison, and used
no obscenities; all Zoretic said to Morrison was
"what?" I t
On the following day, October 7, Zoretic approached
Werner and asked whether there was any way Zoretic
could get his job back. Werner obscenely and emphati-
cally said no, why should he? Zoretic said that he had
done his job well. Werner said, "yes, but you destroyed
my pallet jack." Zoretic said that all he had done was
paint on it. Werner repeated that Zoretic had "ruined"
Werner's $4,000 pallet jack. Zoretic said that while
working for Respondent he had received only one warn-
ing letter, and he had thought three warning letters con-
2 This finding is based on Zoretic's testimony. For demeanor reasons,
I do not accept Hougham's testimony that Zoretic painted only the red
and a portion around "just to blend it in.
a3 My findings as to the Zoretic-Morrison conversation are based on
Zoretic's testimony For reasons stated infra. I do not accept Morrson's
version.
stituted grounds for dismissal. Werner said that this was
no excuse, and Zoretic had set a bad example for every-
one in the warehouse. Zoretic said that he had repainted
more of the pallet jack than he had painted, and that he
had really righted his wrong. Werner said that Zoretic
had not righted it, and that all he had done was to cover
it up. Werner said nothing about Zoretic's being insubor-
dinate. 14
On October 9, when Zoretic came in to pick up his
paycheck, Streilein asked him to sign a document which
stated that Zoretic had been terminated on October 6 for
insubordination. When received in evidence as part of
Zoretic's personnel folder, this document contained an
entry in Streilein's handprinting, "Employee became in-
subordinate when required to clean the pallet jack he de-
faced last week"; Streilein testified that on the day after
Zoretic's discharge, Streilein had done the "paperwork"
on Zoretic's discharge as a "formality" after Morrison
told Streilein that Zoretic had been discharged for being
insubordinate to Morrison. The document also contains
another entry, in printing, which does not resemble Strei-
lein's and was admittedly not inserted by Morrison, "To:
David Hougham"; an entry that this was Zoretic's
second offense; and Werner's initials with an October 7
date in the space for the center manager's signature. It is
unclear from the record which (if any) entries specified
in the last two sentences were on the document when
Streilein gave it to Zoretic on October 9. Zoretic refused
to sign it, stating that he had not been insubordinate, that
he had painted and repainted the pallet jack on his own
time, and that he had not got "loud mouth" with anyone.
Streilein again said that Zoretic had to sign it. Zoretic
again refused and asked for his paycheck. Streilein left,
came back, said that he could not make Zoretic sign the
document, and gave Zoretic his paycheck.
Zoretic did not obtain a union card until October 10.
He read the card, signed it, and backdated it October 5,
the day on which Burrell was supposed to give Zoretic a
card and had not. Then, Zoretic gave the card to Bur-
rell.
Thereafter, the Unemployment Division, Virginia Em-
ployment Commission sent Respondent a form stating
that Zoretic had filed a claim for unemployment com-
pensation. The form stated, inter alia:
TO EMPLOYER: . . . Unless this form is complet-
ed and returned . . . within 5 calendar days . . .
benefits may be awarded without considering your
reason for this claimant's unemployment. Give com-
plete information regarding the claimant's separa-
tion from your employ. A predetermination fact-
finding proceeding, which you may attend, will be
scheduled in a case where any issue is raised.
This form was filled out on October 22 by Streilein on
Respondent's behalf. Streilein checked the "yes" boxes
after the inquiries, "Do you wish to attend a predetermi-
14 My findings as to this conversation are based on Zoretic's testimo-
ny. For demeanor reasons. I do not accept Werner's denial that he used
obscenities and accused Zoretic of ruining the pallet jack. See also infra
at fn 87.
199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation fact-finding proceeding?" and "7. Do you know
of any reason why this claimant should not be entitled to
unemployment compensation benefits?" Also, in response
to "8. Enter an 'X' in the appropriate block to indicate
the reason for claimant's separation from your employ."
Streilein checked the "Discharged" box. The form states
that a "yes" under item 7 or a "discharged" under item 8
is to be explained in detail under "Remarks." Streilein
wrote under "Remarks," "Employee grossly defaced
company property, i.e., a pallet jack, by painting on it
with red paint & initialling it in black." Streilein testified
that the "Remarks" entry had been filled out in connec-
tion with item 7, and did not purport to be the reason for
Zoretic's discharge. On this form, Streilen did not state
that Zoretic had been discharged for insubordination.
The first witness who testified at the hearing was
Center Manager Werner, who was called by the General
Counsel as an adverse witness. Werner testified at that
time that, although he was involved in the decision to
issue a written reprimand to Zoretic for defacing the
pallet jack, Werner was not involved in the decision to
discharge him. Werner further testified that it was his
understanding that Zoretic was discharged for insubordi-
nation to Hougham. Thereafter, Werner was present
during almost the entire hearing. On the second day of
the hearing, Hougham, who was not present during
Werner's testimony, testified that Zoretic was not insub-
ordinate to him, and that Hougham had never told Mor-
rison that Zoretic was insubordinate to Hougham. Later
that same day, Morrision, who was present during
Werner's and Hougham's testimony, testified that Morri-
son discharged Zoretic partly because he had defaced
company property and partly because of insubordination
to Morrison. Initially, Morrison testified that Zoretic was
insubordinate to Morrison when Zoretic was told to re-
paint the pallet jack, but Morrison then admitted that
such instructions proceeded from a supervisor other than
Morrision. Thereafter, Morrison testified that he could
not remember what Zoretic said to Morrison that was in-
subordinate, or whether Zoretic was insubordinate to
Morrison before or after repainting the pallet jack, or
whether Zoretic was insubordinate to Morrison before or
during the October 6 interview, to which Morrison ad-
mittedly called Zoretic with the intention to terminate
him. In view of Morrison's testimony in connection with
Zoretic's alleged insubordination; because of the improb-
ability of Morrison's testimony that Zoretic (who had a
pregnant wife and unpaid bills) took no issue with Morri-
son's assertion that he was being let go for painting the
pallet jack for being insubordinate; and for demeanor
reasons, I credit Zoretic's version of the termination in-
terview.
On the seventh and last day of the hearing, Werner,
who was Respondent's last witness, testified on cross-ex-
amination that (contrary to his testimony on the first
day) nobody (to the best of his knowledge) had ever told
him that Zoretic was insubordinate to Hougham, and
that Werner understood Zoretic had been insubordinate,
not to Hougham, but to Morrison. Werner went to tes-
tify that, when he talked to Morrison after hearing him
testify, Morrison had told him that Zoretic was insubor-
dinate to Morrison while Zoretic was in the process of
repainting the pallet jack and stowing the gear away.
Werner's testimony aside, there is no evidence that Zore-
tic talked to Morrison during this period. Werner further
stated that after hearing the testimony, he had concluded
that "the supervisor involved was hasty in this assess-
ment of what took place" in connection with Zoretic,
and that Respondent intended to offer him reinstatement
and to make him whole for loss of pay and medical cov-
erage. Respondent's announced intentions in this respect
do not constitute probative evidence regarding whether
Zoretic's discharge violated the Act. They are mentioned
in this connection because of their possible effect on any
affirmative relief to be afforded Zoretic in the instant
proceeding.
2. The discharge of Cummings and Jolley
a. Respondent's policy regarding the number of written
warnings prior to discharge
As discussed infra, Respondent contends that Cum-
mings and Jolley were discharged because they had each
received their third written warning. The parties are in
dispute regarding what Respondent's policy is with re-
spect to the number of warnings which an employee is
allowed to receive before being discharged. Cummings
testified that at a meeting of all personnel around early
1979, just before the Manassas facility began operations,
the employees were told that they were to be given a 3-
day suspension for a fourth reprimand and to be termi-
nated for a fifth reprimand. Cummings testified that man-
agement representatives Ballentine (the Manassas facili-
ty's first distribution center manager), George Kimberly
(warehouse manager at that facility until September
1980), and Tom Carter (a distribution center manager in
Chicago) were present at this meeting. All three of these
individuals were still in Respondent's employ at the time
of the hearing, but none of them was called to testify,
and Cummings' testimony as to what was said at this
meeting is uncontradicted.i 5 The "Employee Disciplin-
ary Report" forms used by Respondent call for an indi-
cation as to whether the offense is the first, second,
third, or fourth. 16 Werner, who was distribution center
manager when Cummings and Jolley were discharged,
testified on the first day of the hearing, as an adverse
witness for the General Counsel, that the usual policy at
the Manassas facility is to discharge an employee upon
his receiving a third written warning, but sometimes
such an employee is not discharged "depending on the
gravity of the situation"; and in management's determina-
tion whether to discharge an employee upon his third
written warning, "The primary factors are the serious-
ness of the situation, the tenure of the employee, if he is
15 There is no evidence that Werner, who denied making such remarks
to Cummings, attended the February 1979 meeting. Werner did not start
working at the Manassas facility until January 1980.
" Werner initially testified (in response to an inquiry about the reason
for the fourth-offense indication) that these forms are used in all of Re-
spondent's warehouses, and that different disciplinary standards are in
place at all locations. However, he later testified that the forms were
"created" by then Warehouse Manager Kimberly. Still later, Werner tes-
tified that the centers covered by bargaining agreements were the only
ones which do not follow the three-warnings-and-out policy.
200
THE MARTIN-BROWER COMPANY
a probationary employee or if he has satisfied a proba-
tionary period." Warehouse Manager Streilein testified
that, although a third offense is supposed to be automati-
cally grounds for termination, this has not always been
the case. Werner testified that employee John Harrison,
who was hired in June 1980 and discharged in late Sep-
tember 1980, was not discharged until he had committed
a fourth offense. In February 1980, Werner signed an
employee disciplinary report which stated on its face
that it was employee Brian Spitler's third offense. Spitler
was retained in Respondent's employ until April 1980,
when he received an employee disciplinary report on
which two offenses were checked and which stated on
its face that this was his fourth offense.' 7 A July 1980
disciplinary report in Heskett's personnel folder states on
its face that it is the second such report, and goes on to
state that if the offense is repeated, Heskett will be faced
with a 3-day suspension or stronger disciplinary meas-
ures.
Respondent contends that it had a policy of discharge
upon receipt of a third written warning. Respondent's
brief does not advert to Werner's testimony as a witness
for Respondent, after he had heard Cummings and Jolley
testify and inconsistent with his initial testimony when
called by the General Counsel, that Respondent had a
"three-and-out" discipline policy. 18 Nor does Respond-
ent's brief rely on the testimony of former Supervisor
Larry F. Klouser, whose resignation Respondent pro-
cured after he admitted stealing from Respondent (see
infra sec. II,B,4,a), that "the third time you're written up,
you're terminated." Respondent's brief does rely on the
testimony of employee Zoretic that "three warning let-
ters constitutes grounds for dismissal," but this does not
constitute a statement that dismissal is automatic, and
Zoretic, who worked for Respondent between June and
October 1980, based his testimony entirely on what he
had been told by an undisclosed number of fellow em-
ployees, including leadman Lohman. Further, Respond-
ent points to the testimony of former employee Laymon,
who worked for Respondent between July 1979 and Sep-
tember 1980, that when he was hired, "my immediate su-
pervisor and-I'm not certain, but I believe there were
documents shown to me that said, you were allowed, to
my understanding, two warnings and upon the third in-
fraction you would be dismissed" (cf. supra at fn. 17).
Respondent failed to produce these alleged documents;
and for reasons set forth infra sec. II,B,4,a, Laymon had
very strong reasons for giving evidence favorable to Re-
spondent. Notwithstanding the testimony relied on by
Respondent, I find from the documentary evidence and
the credible testimony that Respondent did not follow
J" The first file document reflecting disciplinary action with respect to
Spitler is not on the regular "Employee Disciplinary Report" form.
Flowever, there is no evidence that Werner knew this when he signed the
three regular "Employee Disciplinary Report" forms, which state on
their face that the offense was Spitler's second, third, and fourth, respec-
tively. Employee Lowell Laymon's personnel file shows that he was re-
tained after receiving three "Employee Disciplinary Report" forms, but
both the May 1980 and the July 1980 forms state on their face that they
reflect a first offense, and the August 1980 form states that it reflects a
second offense.
ia Werner testified that he did not "recall directly identifying one,
two, three" during his January 1980 introductory meetings with employ-
ees.
the policy of automatically discharging employees upon
a third written warning, and that whether Respondent
decided on such action depended on the circumstances
of the case.
b. Cummings
Ross Cummings began to work for Respondent in
February 1979, when the Manassas facility was opened,
at $5.40 an hour. In May 1979, he received a wage in-
crease to $6 attributed to his having completed his pro-
bationary period, and in March 1980 he received an in-
crease, designated as an annual wage adjustment for the
Manassas facility, to $6.48.
In April 1980, Cummings received a written warning,
his first, on the ground that he had put stock in the pick-
ing lines in an improper manner. On September 4, 1980,
he received a second written warning, this time on the
ground that he had left the job without telling anyone
and left the "drydock" in a mess. No contention is made
that either of these warnings was unlawfully motivat-
ed.' 9
Cummings was one of the employees who, in late Sep-
tember 1980, discussed unionization with the M & M
driver in the breakroom and caused him to telephone the
Union. Cummings attended the October 4 union meeting,
signed a card there, and thereafter took a card to em-
ployee Reid and induced him to sign it.
Cummings' first tour of duty after the union meeting
began at 7 a.m., Monday, October 6. Cummings ordinari-
ly performed receiving work. However, that morning
was rather slow, and at 7:30 or 8 o'clock, Cummings
switched duties with employee Carl Fisher, who ordinar-
ily performed picking work, in order to obtain a "change
of pace" (see infra).
About September 28, Fisher had received a 3-day sus-
pension for pulling down all or most of a storage rack-
thereby destroying the rack and a lot of product, and en-
dangering himself and others-by lifting with his forklift
something which was heavier than the forklift was pre-
pared to cope with. The morning of October 6, Fisher
knocked down some boxes of foam materials with his
forklift, and was immediately discharged. 20 At some
time between 9 and 10:30 a.m., Payne told Cummings to
return to receiving work, and he did so.
Streilein testified that Werner walked with him
through the warehouse every day. Streilein further testi-
fied that, when he became warehouse supervisor in April
1980, he noticed an "insignificant" dent in a leg at the
front corner of a 12- or 16-legged storage rack where ice
19 Both of these warnings were signed by alleged discriminatee Payne,
who was a leadman (not claimed to he a supervisory job). Payne, who
was called as a witness by the General Counsel, testified on cross-exami-
nation that he gave these warnings to Cummings on the instructions of
then Warehouse Manager Kimberly, who at the time of the hearing was
still in Respondent's employ but did not testify. There is no evidence that
Payne had any personal knowledge of the events which led up to these
warnings. Under the circumstances, I perceive little merit to Respond-
ent's contention that Cummings is not a believable witness because he
denied having engaged in the conduct which these warnings attributed to
him.
'0 Fisher signed a card on October 4. The Union's initial charge al-
leged that his discharge was unlawful, hut he is not named in the com-
plaint.
201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
melt was kept; and that, while the rack was in this condi-
tion, he did not tell anyone to repair it.2' Werner's testi-
mony makes no mention of any such dent before Octo-
ber 6, 1980. Streilein testified that at an undisclosed hour
that morning he and Werner walked through the ware-
house and made a notation that one of the legs on the
rack was somewhat bent and should be straightened out.
Still according to Streilein, at that time Werner instruct-
ed him to have the mechanic move the product from the
rack, straighten out the leg while it was still repairable,
and then replace the product. Streilein went on to testify
that later that morning, he and Werner returned to the
area and found that the previously damaged leg had been
visibly bent further and there were scratches in the con-
crete on the floor where the leg had been pushed aside.
Werner testified that he walked near the rack on two oc-
casions that morning, both before 9 a.m., and that during
one of these tours he and Streilein saw Fisher knock
down the foam materials; but he did not corroborate
Streilein's testimony regarding the instructions which
Werner allegedly gave him on the first occasion, nor
even testify that during Werner's first visit he noticed
that the rack had already been somewhat damaged and
that he was then accompanied by Streilein.
Later that day, Streilein approached Cummings and
asked if he had hit the rack in the back of the warehouse
or knew who had hit it. Cummings asked, "What rack?"
Streilein said that it was the rack with the ice melt. Cum-
mings said that he had not hit the rack but would go
back and look at it. Cummings testified that, so far as he
could tell, it looked the same as it had been looking for
many weeks previously. A little later, about 2:30 p.m.,
Streilein told Cummings that Werner wanted him to take
everything out of the damaged rack and put it into an-
other rack so it could be taken down. That same day,
Cummings did so.22 When he left work that day, Strei-
lein said that he would see Cummings in the morning.
The following day. October 7, Cummings reported to
work at 7 a.m., his usual hour. He was the only employ-
ee in the warehouse on his shift; all the others had been
transferred or fired. He worked until about his scheduled
quitting time. Then, Streilein approached him and asked
him to unload a truck which had arrived late. Cummings
said that he was really tired and would like to go home.
Streilein said, "Well, okay, don't worry about it." A few
minutes later, as Cummings was cleaning off the dock,
Streilein approached him and said that Streilein wanted
to see him before he left. Inferring that he was about to
be fired, Cummings said, "Now is as good a time as
any." The two proceeded to Streilein's office. Streilein
threw an "Employee Disciplinary Report Form" at
Cummings. The document was a termination notice. A
check appeared before the printed entry "Destruction of
Company Property." It bore Streilein's and Werner's sig-
21 Similarly, Cummings testified that he had noticed a dented leg many
weeks before his October 1980 discharge.
22 My findings in these two sentences are based on Cummings' and
Werner's testimony. In view of their testimony that the rack was evacu-
ated that day, October 6, I do not accept Streilein's testimony that it was
not evacuated until October 7 Streilein testified that it was he who or-
dered the product removed from the rack, and that he issued this order
because he feared the rack might fall. At this time, the rack contained
4,000 or 5,000 pounds of ice melt
natures, both dated October 7. In the space for "Re-
marks," Streilein had handprinted the following entry,
"On 10/6/80 a rack & guard rail in the rear of the ware-
house was hit. Since none of the three individuals work-
ing in the area admits to this, all will suffer the conse-
quences. As this is your 3rd offence, you are hereby ter-
minated." Then, Streilein leaned back in his chair. Cum-
mings said, "Why? . . this doesn't make any sense and
besides, being that this was the third time I was written
up . . . the three letters were minor." Streilein said that
he was just doing what he was told, and escorted Cum-
mings outside. Streilein said nothing regarding the of-
fense being Cummings' third. 23 The damaged rack was
left empty until it was repaired by the mechanic later in
October.
Streilein testified that only three people (Cummings,
Shutlock, and Huffer) were working that morning in an
area where they could have damaged the rack with their
forklifts; that he asked all three whether they had dam-
aged the rack, and all three denied it; 24 and that, accord-
ingly, he decided to serve an "identical writeup" and
"deal equal punishment" to all three. Streilein further
testified to deciding that, because Cummings had already
had two writeups, he should be discharged. Streilein tes-
tified that it is not unheard of for racks to get bumped in
a day's work; and, as previously noted, testified that
some employees are not discharged until the fourth of-
fense; he was not asked why he did not withhold dis-
charge action here.
The record contains a good deal of evidence in con-
nection with Cummings' testimony that Fisher performed
receiving work for a while on October 6 and, therefore.
could have been responsible for the alleged October 6
damage to the rack. Because there is no evidence that
when Cummings was discharged management had any
reason to suppose that Fisher had damaged the rack on
October 6, the question of whether (as Cummings testi-
fied) Fisher performed receiving work that day is rele-
vant solely to Cummings' credibility generally. Contrary
to Respondent, I do not agree that Cummings' testimony
about Fisher's work is impeached by the absence of Fish-
er's initials from the receipts dated October 6, or the ab-
sence of Cummings' initials from the picking sheets so
dated. The initials which appear on such sheets are only
the initials of the employee who finished receiving or
picking the items listed, and do not include the initials of
employees who performed earlier parts of the operation.
Moreover, one of the receipts issued that day was com-
pleted and initialed by Cummings but was begun by
someone else whose handprinting bears a striking resem-
blance to the handprinting on documents purportedly
drawn up by Fisher and in his personnel folder. 25 More
23 My findings as to this conversation are based on Cummings' testi-
mony, partly corroborated by Streilein. To the extent that their versions
differ, for demeanor reasons I credit Cummings
24 At the time of the hearing, Shutlock and Huffer were still soiking
for Respondent. They did not testify.
2a The items listed in this handprinting consist of certain specified
kinds of "foam" items The cartons which Fisher knocked over in the ac-
cident which led to his discharge contained unspecified kinds of "foam"
items. Werner testified that both pickers and receivers perform the kind
of work being performed by Fisher when he had this accident
202
THE MARTIN-BROWER COMPANY
significant is the General Counsel's failure to ask alleged
discriminatee Payne about Fisher's October 6 job assign-
ment, in view of Cummings' testimony that that morning
he told Payne about Cummings' and Fisher's proposed
change of duties and that it was Payne who later told
Cummings to return to receiving work because Fisher
had been discharged. Nonetheless, as to Fisher's job that
morning I credit Cummings, whose testimony is not di-
rectly contradicted and is not inconsistent with other evi-
dence.
c. Jolley
Paul Bryant Jolley, Jr., was hired by Respondent on
June 8, 1980, at $6 an hour. He was hired as a part-time
employee, but apparently was a full-time employee when
discharged in October. On June 24, he received a written
reprimand for being 2 hours late on June 22.26 On
August 1, because of picking errors, he received a writ-
ten warning for defective and improper work and care-
lessness. This warning slip said that Jolley was "not per-
forming to [Respondent's] standards. His performance is
far below that of fellow employees doing the same job.
Employee has been told if he is not performing to [Re-
spondent's] standards by next week he will be terminat-
ed." Beside the circle around "Offense Number 2" is the
word "final." No contention is made that either of these
warnings was unlawfully motivated. His personnel file
states that effective September 8, 1980, he received a 48-
cent "90 day increase per personnel practices" which
was approved on September 23.
In late September or early October 1980, employees
Payne and Huffer approached Jolley on the drydock
after the end of his shift and asked him whether he
would be interested in unionizing the facility. Thereafter,
Jolley discussed the matter with employees Williams and
Posey. Jolley attended the October 4 union meeting, and
signed an authorization card there.
Jolley's duties included moving from the staging area,
and loading onto Respondent's trailers, cartons which
were made of heavy cardboard; were about 8 inches
high, 8 inches long, and 12 inches wide; weighed 20 to
30 pounds each; and contained bottles of liquid corro-
sives which are used to clean drains, grills, and fryers.
On the evening of Sunday, October 5, Jolley started to
push across the floor three cartons of corrosives with his
pallet jack a distance of 60 to 80 feet, a normal distance
between the staging area and a trailer.27 After Jolley had
pushed these cartons for 30 to 40 feet, Werner saw him.
Werner told Jolley that cartons of corrosives should
nver be pushed across the floor, and instructed him to
pick the cartons up and take them to the trailer. Jolley
said, "yes, sir," and did so. Werner said nothing further
a6 Jolley had never before been late. On this occasion, he was late be-
cause he had not been notified that the hours of his shift had been
changed. Supervisor Klouser, who signed the warning, said that he could
understand the misunderstanding, but was writing Jolley up because
Klouser had had to fire another employee who had been late the same
day (and on a number of other occasions) and who had been "making
trouble."
27 Jolley testified that the floor in the lane he was on that night was a
very smooth finished concrete. The warehouse floor had seams and
cracks, but there is no specific evidence that these were present on the
route Jolley was then using.
at this time. Nor did Jolley have any discussion of the
incident with Streilein or Hougham during that shift.
which ended at about 4 a.m., on Monday, October 6. Jol-
ley's next shift began at II p.m., on Monday, October 6,
and ended at 7 a.m., on Tuesday, October 7. During this
shift, management made no comments to him about the
October 5 corrosive-pushing incident.
About 4 p.m., on Tuesday, October 7, Hougham tele-
phoned Jolley at home and asked him whether, after fin-
ishing his next shift, he would use his own truck to deliv-
er a 5-gallon container of syrup to a restaurant in Luray,
Virginia, which needed the syrup before its next regular
delivery. Jolley said that he would. Jolley's next shift
began at 11 p.m., on Tuesday, October 7, and ended at 7
a.m., on Wednesday, October 8. After his shift ended, he
drove his own truck about 50 miles from Respondent's
Manassas warehouse to make the delivery at or about
9:30 a.m., and then drove to his Midland, Virginia, home,
which is about 50 miles from Luray.28
When Jolley returned home, his wife. who was preg-
nant with twins, told him that she had not felt the babies
moving since the morning of the previous day. Jolley
drove her to her doctor in Warrenton. Virginia, about 12
miles from Midland, who sent her to a hospital in Manas-
sas, about 18 miles from Warrenton, for a sonagram.
After taking the sonagram. hospital personnel told the
Jolleys that the results were being telephoned to their
Warrenton doctor and Mrs. Jolley should go back to
him. However, from the manner in which this message
was conveyed, Jolley inferred (as it turned out, correct-
ly) that the babies were both dead.
After leaving the Manassas hospital, the Jolleys drove
to Respondent's warehouse, where Jolley was scheduled
to report to work at 11 p.m., to tell Respondent that
Jolley would not be able to come to work that night.
Upon entering Werner's office, Jolley said that he would
not be reporting to work that evening, and explained
why. Werner said, "We might as well get this all over at
once . . . we have to terminate you." Werner said, accu-
rately, that Jolley had had two writeups, and further said
that he had been abusing company property. Jolley
cursed Werner. Werner told Jolley to sign a typewritten
termination paper, with a typewritten date of October 7,
which bore the signatures of both Streilein and Werner,
also dated October 7. The termination slip stated that
Jolley was being discharged for using a pallet jack to
push three cases of corrosives across the floor on Octo-
ber 5. The slip further stated, "This is wanton abuse of
company property and contributes to in-house damage.
This is not the first time you have done this. This is
gross negligence and cannot be tolerated.2' You are ter-
minated effective immediately." Jolley said that everyone
whom he had ever seen loading the trucks would load
the corrosives the same way he had done it on October
' Jolley was never paid or reimbursed for gasoline expenses for
making this delivery. Nor had he received pa> ment ft, perfo rming a sim-
ilar delivery on an earlier occasion
29 On this slip, the typed words "power" and "contemplates" swere
crossed out, and the handprinted words "palletl" ;td "loliributes" were
substituted. This handprintirg was not ldone by Streilein, Ahose hand-
printing is distinctive and remarkably legible The record lads to show
who made these corrections
203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Werner failed to withdraw the termination notice.
Jolley refused to sign the termination slip, and left the
office. That evening, Mrs. Jolley was hospitalized in con-
nection with her dead unborn twins.
My findings as to Jolley's termination interview are
based on his testimony. Streilein and Werner both testi-
fied that, when Jolley entered the warehouse that after-
noon, he initially went to Streilein's office, and that
Streilein then escorted him to Werner's office. Streilein
did not testify that Jolley gave any explanation for going
to Streilein's office. Werner testified that after Jolley's
discharge Streilein told him that Jolley had come to
Streilein's office to bring an invoice regarding some
syrup he had delivered and to say that he was not going
to be at work because he had taken his wife to the hospi-
tal; but Streilein, far from testifying that this was the
reason for Jolley's alleged visit to Streilein's office or
that he later so advised Werner, testified that Streilein
did not even know Jolley was married.3 0 This denial (in
effect) by Streilein that Jolley ever mentioned the Jol-
leys' experiences earlier that day, and Werner's testimo-
ny at one point that Jolley said nothing about his wife or
children, impress me as being highly improbable. I credit
Jolley's version of the discharge interview, and in view
of his failure to mention Streilein, conclude that Streilein
was not present.
Jolley testified that after starting back across the com-
pany parking lot, he turned around, reentered the ware-
house, and ran up the stairs to Werner's office; tried to
turn the knob, but found that the door was locked; and
may have banged it once. Still according to Jolley, he
called that Werner had better lock the door, and then re-
turned to Mrs. Jolley in the car. Jolley credibly testified
that when returning to Werner's office, Jolley was angry
because he felt he had been treated unfairly, and wanted
"the upper hand on him . . . I just wanted to see if he
was chicken enough to run . . . the whole time I was at
the warehouse he went for bad. He acted like he was
never scared of anybody." Jolley credibly disavowed
any intent to use physical force. After returning home,
he telephoned Werner and apologized for Jolley's con-
duct.
No other witness was asked about Jolley's second
visit. Jolley's personnel file, which was offered into evi-
dence by the General Counsel without objection or limi-
tation, contains an entry (in Streilein's handprinting,
signed by him, and dated October 7) which states, in
part, that after Jolley was informed of his termination, he
"became abusive, threatening & loud. He left & then
came storming back upstairs, pounding on the door &
threatening once again." The same document contains an
undated entry, after Streilein's signature but above his
initials, "Note: On 2nd encounter, he was screaming ob-
scenities & challenging us to come out of the office.
Approx time-16:46 hours." The "Note" goes on to state
that Respondent called the county police, who stated
that Respondent's only recourse was a misdemeanor
charge. Jolley is 6 feet I inch tall, weighs 235 pounds,
a0 However. a memorandum by Streilein in Jolley's personnel file (see
infra) states, inter alia, that Jolley "came into office to report off from
work."
and was then 18 or 19 years old. Werner is an inch taller,
weighs about the same, and was 34 years old.
Werner testified that his observations of the October 5
incident where Jolley was pushing corrosives were
passed on to Streilein and were reviewed by Streilein
and Hougham. Hougham testified that nobody consulted
him, just prior to Jolley's discharge, about his work per-
formance, and that before his discharge Werner did not
discuss the October 5 corrosive-pushing incident with
Hougham. Streilein testified that he asked Hougham
(Streilein's subordinate) to "verify" the report of Werner
(Streilein's superior) to Streilein that Werner had
"stopped" Jolley on October 5 and that Hougham said
yes; Hougham denied telling Streilein that Werner had
stopped Jolley. Werner testified that he decided to dis-
charge Jolley after "counselling" with Hougham (who,
as previously noted, denied such discussions) and at
Streilein's recommendation. Streilein testified that
Werner instructed him to discipline Jolley for pushing
corrosives. Werner testified that he, Streilein, and
Hougham "determined that [Jolley] had been verbally
warned prior to that that [pushing] was not the proper
way to move corrosive material in the warehouse."
Streilein testified that it was after Jolley's discharge
when Hougham told Streilein that Hougham had given
Jolley an oral warning for pushing corrosives. Hougham
testified that he reported this alleged incident to Streilein
a week before Jolley's discharge; that when Hougham
observed Jolley pushing corrosives, Hougham told him
not to do that; and that Hougham never again saw him
do it. Jolley testified that he usually transported corro-
sives by pushing, and that before Werner's October 5 re-
proof, nobody had ever told Jolley not to do so; employ-
ee Zoretic testified that nobody had ever told him how
to transport corrosives. Werner testified that, before Jol-
ley's discharge, Streilein investigated the incident with
Jolley. Streilein testified that he did not talk to Jolley
about the October 5 corrosive-pushing incident because
Jolley did not work on October 6; Respondent did not
produce the timecard of Jolley, who testified that he
worked a shift which began at 11 p.m. on October 6 and
that after Werner told him on October 5 to stop pushing
corrosives, management did not mention the incident to
him until his October 8 discharge.
Streilein testified that to his knowledge Jolley was the
only employee who ever received any form of written
discipline for pushing corrosives. Werner, Streilein, and
Hougham all credibly testified that the preferred practice
in moving cartons of corrosives is to transport them on
pallet jacks (which are available throughout the ware-
house) rather than to push such cartons along the floor,
because cracks, seams, and debris on the floor create
some risk of rupturing the cartons and the plastic bottles
inside, and because spillage of corrosives can cause a
cleanup and, perhaps, a gas problem. However, such
instructions have never been put into writing.
Streilein testified, without being asked for a date, that
on three or four occasions he had seen employees Lee
Killinger and Hedrick pushing corrosives, and that Strei-
lein had "spoken to" them about the matter but had not
written them up. He testified that he had never seen
204
THE MARTIN-BROWER COMPANY
anyone else push corrosives. Hougham testified, without
being asked for a date, that during his 14 months as a su-
pervisor he had seen two other warehousemen (Van Ord
and Hendricks) push corrosives, and had brought to their
attention that they were not supposed to do that but did
not write them up. In final form, the testimony of
Laymon, an employee between July 1979 and September
1980, states that the only employees whom he had seen
pushing corrosives were Van Ord (discharged for other
reasons) and Jolley. Laymon was an unreliable witness
with strong reasons for testifying favorably to Respond-
ent (see infra sec. II,B,4,a), and certain parts of his testi-
mony indicate that he had in fact observed other em-
ployees push corrosives.
When Jolley was being trained in late August as a dry
loader, Supervisor Klouser instructed him to push the
corrosives over the floor when Jolley was pushed for
time.3 1 Jolley credibly testified that he had used this
technique for transporting corrosives throughout his ap-
proximately 6 weeks as a dry loader, during which he
had loaded them seven to nine times a day. Jolley testi-
fied that he had seen employees Killinger, Richard
Beaver, Huffer, another employee whose name he did
not know, and Supervisor Klouser push corrosives. Em-
ployee Burrell, a warehouse employee for 16 months
which included Jolley's tour of duty, testified that, in
late 1979, Burrell saw Supervisor Klouser transport cor-
rosives by pushing; and that, thereafter, Burrell himself
transported corrosives that way because it was "a little
bit faster because you didn't have to get off the jack"
and "we were always in a rush around there." Burrell
further credibly testified without contradiction that,
about April 1980, Werner engaged him in conversation
while he was pushing corrosives, but said nothing to him
about the matter. Employee Zoretic, a warehouse em-
ployee for a 4-month period which included Jolley's tour
of duty, testified that he had seen employees push corro-
sives.
Circumstantial support for the testimony that employ-
ees frequently pushed corrosives is provided by evidence
regarding the loading system and requirements then in
effect. This system compelled the loaders to transport
corrosives separately from any other products, encour-
aged and sometimes compelled the loaders to transport
from the staging area single loads which consisted of a
few cartons of corrosives, and encouraged and some-
times compelled the loaders to transport corrosives from
the staging area just before the trucks were supposed to
pull out and when employees were particularly pressed
for time.3 2 As to employees pushing of corrosives, I
'1 This finding is based on Jolley's testimony. For demeanor reasons, I
do not accept Klouser's testimony that on one occasion he saw Jolley
pushing corrosives and told him that this was not the way'to load corro-
sives.
32 On an undisclosed date after Jolley's discharge, Respondent discon-
tinued the practice of requiring the pickers to obtain corrosives, like
other products, from stock and to place them, along with the rest of the
orders, in the staging area Instead, after transporting the products in the
staging area to the loading area and loading them onto the trailers, load-
ers such as Jolley were required to obtain the corrosives from stock. This
procedure change eliminated much of the loaders' incentive to push cor-
rosives.
credit the testimony of Jolley, Burrell, and Zoretic in the
preceding paragraph; I find that the frequency of such
conduct was understated by Streilein, Hougham, and
Laymon; and I conclude that while Jolley was working
for Respondent. corrosives were frequently transported
by pushing.
3. The demotion and discharge of Lohman
Robert Ivar Lohman was hired by Respondent in
August 1979 at $5.40 an hour. On a date not clear in the
record, he received an increase to $6 an hour; inferential-
ly, this was given about November 1979 when he com-
pleted his probationary period. In March 1980 he re-
ceived an increase to $6.48, in connection with the
"annual wage adjustments" for the Manassas facility. In
June 1980 he was promoted to leadman, not claimed to
be a supervisory job, and received an increase to $6.88.
Streilein and Hougham both testified that Lohman was
a hard worker. Streilein further testified that Lohman
was a very strong worker with a lot of endurance.
Werner testified that Kimberly, the warehouse manager
between February 1979 and September 1980, complained
about Lohman's performance. Werner gave no dates in
this connection, and did not testify to any such com-
plaints by Streilein (Kimberly's successor) or Hougham
(Lohman's immediate superior). Hougham credibly testi-
fied that in early September. when the employees were
unusually busy because to their regular duties had been
added work ordinarily performed by the M & M strikers,
he instructed all the employees, including Lohman, to
engage in "continual cleanup" activity. Lohman credibly
testified that there had been complaints that empty pal-
lets were not being stacked high enough; that he in-
structed his crew to stack them 20 high; that after
"awhile" the crew got in the habit of doing so; and that
he could recall no subsequent complaints about the
matter. Also, Lohman credibly testified that his duties in-
cluded keeping the dock clean; that during this period he
tried to develop among his crew a cleanup system for
trash; and that "I don't remember anything like a warn-
ing." Supervisor Morrison testified that during the M &
M strike, Respondent's employees were working so hard
that the trash was not swept up as carefully as usual on a
day-to-day basis. Before October 6, Lohman received no
written warnings, nor is there any evidence that he re-
ceived any oral warnings.
Among the products regularly stored in the warehouse
were 72-towel cases of red-striped cloth towels, similar
to bar towels or cheap dish towels. which were used by
McDornald employees to wipe off counters. Each towel
cost 20 to 30 cents. In late spring 1979, before Lohman
began working for Respondent, then Warehouse Man-
ager Kimberly advised a group of employees that he was
tired of having employees break into boxes of cloth
towels, at least some of which were being used by em-
ployees around the warehouse. He said that thereafter he
would arrange for an open box of cloth towels to be put
from time to time on the supervisors' desk, and that the
employees could use them for sweat towels and to clean
up spills and other messes. He said nothing about restric-
tions in connection with taking them home. This practice
205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was in effect when Lohman started working for Re-
spondent in August 1979.
Werner became center manager in January 1980. Upon
assuming this position, he gave a speech to all the em-
ployees, during which he said that removal of company
property would be grounds for immediate dismissal. He
did not specifically mention towels. 3 3 Kimberly contin-
ued until April 1980 his prior practice of periodically
making open boxes of towels available to the employ-
ees.3 4 About April 1980, Werner saw two towels on
Heskett's power jack, and asked whether he had got
them from inventory. Heskett replied that he had got
them from an open box of towels which Streilein had
put on the supervisor's desk.3 5 Werner said nothing fur-
ther about the matter at this time. Later that day, when
Heskett left for the day, he left the towels on his power
jack, and he never saw them again.3 6 Werner or Strei-
lein removed the open box of towels from the desk, and
put it in the "recoup area," where Respondent keeps
products which are to be repacked or cleaned up to be
made saleable, and equipment used for performing this
operation.s Thereafter, no more open boxes of towels
were made available to the employees. Further, when
Supervisor Hougham saw towels in the trash, unless they
were "really grungy," he would take them to the recoup
area. However, Werner testified that new and used
towels were thrown away in the dumpster with some
regularity, and that nobody was ever verbally warned or
otherwise disciplined therefor. As described infra section
II,B,4,a,d, nobody asked employee Posey to return a case
of greasy towels which he found in the dumpster. On an
undisclosed date after the discharges at issue in this case,
a lock was installed on the wooden box where towels
were kept in the recoup area.
While towels were still being made available to the
employees, Lohman removed a total of about seven from
the box. Thereafter, he took no more. At all times from
his August 1979 hire until October 7, 1980, Lohman car-
ried one of these seven towels on his belt while at work.
He used this towel to wipe his forehead, wipe his glasses,
and blow his nose.38 As a towel became soiled he would
take it home (sometimes attached to his belt), would
launder it, and then would bring it (sometimes attached
ss This finding is based on Werner's testimony. However, Werner's af-
fidavit in connection with the 10(f) proceeding alleges that he specifically
said that employees could not use stored cloth towels, or take them
home.
s4 This finding is based on employee Heskett's testimony, partly cor-
roborated by Supervisor Streilein. Werner initially testified that to his
knowledge there was no time when a case of towels was put on the
warehouse supervisor's desk for employees to take as they pleased. How-
ever, he thereafter described such incidents in February and April.
3s Heskett had not seen Streilein do this, but inferred from the location
of the box that Streilein had put them there. Streilein testimonially denied
that he had done this.
se This finding is based on Heskett's testimony. For demeanor reasons,
I do not accept Werner's testimony that he took the towels from Heskett
and put them back in the box.
s3 Werner's testimony indicates that the towels were used in cleaning
up other products, and that towels in a damaged case were not consid-
ered salable.
38 Lohman's duties required him to operate a forklift in Respondent's
freezer. When he drove the forklift into the freezer, a mist appeared on
his glasses, which are heavy and which he needs in order to drive a fork-
lift safely. Also, the drop in temperature caused his nose to run.
to his belt) back to the warehouse so he could use it
again. Werner testified that he saw Lohman and other
employees continue to carry towels after Werner's April
1980 discontinuance of the practice of making new
towels available to employees, and discussed with
Lohman the "peculiar" fashion in which he had a towel
tied to his belt; but never asked him if he was taking the
towels home, or what he did with them at the end of the
day. Werner further testified that on an undisclosed date
or dates in 1980, he saw Lohman leaving the building
with a towel on his belt. Supervisor Morrison, who
worked at the Manassas facility in September and Octo-
ber 1980, testified that he saw Lohman using one of
these cloth towels to wipe off his glasses. Streilein, a
warehouse supervisor and then a warehouse manager be-
tween April 1980 and Lohman's October 1980 discharge,
testified that he saw Lohman "usually always" with a
towel tied on his pallet jack, but never asked him where
he was getting them or whether he was taking them
home and washing them. Klouser, a warehouse supervi-
sor from the fall of 1979 until August 1980 and a trans-
portation supervisor in September and October 1980, tes-
tified that in 1980 he saw Lohman, Heskett, and one or
two other employees use towels; that Lohman kept a
towel hanging on his belt; and that Klouser never wrote
up anyone for using cloth towels. Supervisor Hougham
testified that in April or May 1980 he told Streilein that
Lohman had some cloth towels; that Hougham could not
recall any instructions from Streilein (then Hougham's
equal) about what to do; and that Hougham thereafter
saw Lohman with a towel around his belt. Hougham ini-
tially testified that he did not believe he told any of his
superiors that he saw Lohman with towels; but
Hougham later testified that, in the summer of 1980, he
saw Lohman with towels and reported this to Werner. 3 9
It is undisputed that before Lohman's October 9 dis-
charge he was never disciplined in connection with
towels. Werner testified that on an undisclosed date or
dates between January and October 1980 he "chal-
lenged" Lohman about the towels; that Lohman replied
that someone opened the box and put them out there and
he would put the towel back when he was done with it;
and that Werner did not issue him a warning of any kind
for using the towels. Streilein testified that he never
spoke to Lohman about the towel matter. Lohman testi-
fied that before October 8, 1980, the day before his dis-
charge, he could not recall that anyone in management
talked to him about the use of towels. As to manage-
ment's statements about towels, I credit the foregoing
testimony by Lohman and Streilein, and discredit
Werner's and Streilein's testimony otherwise, 4 0 for de-
meanor reasons, in view of the undisputed evidence re-
garding Lohman's continuous use of the towels, and in
view of his promotion to leadman in June 1980, after
39 I discuss infra Hougham's testimony that before October 7 he never
saw Lohman take any towels home.
40 Streilein elsewhere testified that, after the April 1980 removal of the
box of towels from the supervisor's desk, he told the employees on his
shift not to take towels, and if he saAw a man with a towel, Streilein told
him to put it back where it belonged.
206
THE MARTIN-BROWER COMPANY
Werner discontinued making towels available to employ-
ees.
On October 2, while Lohman was performing "power
work" at a desk, employee Lenk approached him and
asked if he were interested in bringing a union into the
Company. Lohman said, "yes, definitely." Lenk then
told him about the forthcoming October 4 union meeting
at the Holiday Inn. Lohman attended that meeting and
signed a card there.
On Monday, October 6, Lohman told Warehouse Su-
pervisor Hougham that Lohman was "definitely interest-
ed" in bringing the Union into the Company. Hougham
gave him a blank look. A little later, Hougham asked
him why he had made that statement about the Union.
Lohman replied that he had been advised that he should
be open about his interest in the Union.
On the loading dock at or about 8 p.m., on October 6,
Werner called Lohman's attention to the fact that
Carper, an employee on Lohman's crew, had put a box
on a truck in such a way that it would block off the ven-
tilation to cool off the load. Lohman asked whether that
had been a persistent problem recently and whether
Lohman should call his crew together and draw the
matter to their attention. Werner said that he did not
think that would be necessary, but Lohman should make
sure that the loading was being done properly. Werner
did not say that he would write Lohman up or that his
job as a leadman was in jeopardy. 4 '
Hougham testified that immediately after this incident
Werner remarked to him that the improper loading of a
truck is not a good example for a leadman to set for the
rest of the employees, and questioned whether Lohman
should be a leadman. Hougham went on to testify that
Werner asked about Lohman's performance as a lead-
man, to which Hougham replied by referring to the im-
proper loading incident a few minutes earlier and by al-
leging that the loading dock was continually loaded with
paper and trash. Still according to Hougham, he and
Werner thereupon argeed that Lohman should be demot-
ed. Hougham testified that Werner initiated the decision
to demote Lohman and recommended the demotion to
Hougham, who agreed. Werner testified that Lohman's
demotion was due to Hougham's recommendation.
About 8:30 p.m. the following day, October 7, Super-
visor Morrison told Lohman that Werner wanted to see
4 My findings in this paragraph are based on Lohman's testimony
Lohman testified that nobody else was present during his discussion with
Werner. Werner testified, in effect, that it was Lohman himself who im-
properly loaded the trailer, but Werner admitted to not warning Lohman
that his leadman job was in jeopardy, and was not asked whether
Hougham was present during the Lohman-Wernei conversation.
Hougham testified that it was Lohmnan himself who had improperly
loaded the trailer and that Hougnam and Werner helped him correct the
problem at the time Hougham denied that Lohman offered to call his
crew together and instruct them about not blocking the air-conditioning
vents when they loaded the truck, but testified that Hougham never
warned Lohman that his leadman position was in jeopardy. The warning
issued to Lohman after this incident is signed by Werner and Streilein
and does not bear Hougham's signature; and does not allege that Lohman
himself loaded the truck, but instead suggests that someone else loaded it
("a trailer was loaded .. .on your . . shift. The frozen was packed
around the [cooling unit] . . . You are paid to lead the men on this shift
and to insure this doesn't happen"). In view of this warning notice and
for demeanor reasons. I credit Lohman. Carper, who was still in Re-
spondent's employ at the time of the hearing, did not testify.
him, and escorted him to Werner's office. On the last
day of the hearing, Werner testified that before this in-
terview nobody had "formally acknowledged" to him
that Lohman had taken company property off the prem-
ises, and that Werner did not call him in because Werner
had knowledge that he had taken company property.
However, on the first day of the hearing, Werner testi-
fied that he called Lohman in on October 7 to discuss his
removal of company property and in connection with
the "continuing investigation of theft"; and, on the fifth
day of the hearing, Werner testified that on an undis-
closed date or dates, he saw Lohman leave the premises
with a towel tied to his belt.
Werner began the conversation by asking Lohman
what was happening. Lohman said that he did not know,
that there had certainly been a lot of turnover recently.
Werner laughed sarcastically. Werner told Lohman what
the duties of a leadman should be, said that Lohman had
been asleep for the past 2 or 3 days, and said, "congratu-
lations . . . you're no longer a leadman." Then, Werner
showed Lohman an employee disciplinary report, his
first, which stated that because of the October 6 incident
where a truck was loaded so as to block the cooling unit
he could no longer act as leadman. (As previously noted,
Lohman had received a 40-cent increase when promoted
to leadman.) The warning notice does not refer to an
untidy loading dock. Werner testified that "the supervi-
sor" had completed the disciplinary report which
Werner gave Lohman on October 7, but Warehouse
Manager Streilein's signature (the only management sig-
nature thereon except Werner's, which is dated October
7) is dated October 8.42 Lohman asked who was going
to be the leadman. Werner asked who Lohman thought
shoud be leadman. Lohman said that he thought he
should be leadman, otherwise he would never have
asked for the job. Werner said that Lohman might be in-
terested in a vacancy for supervisor on the midnight
shift. Lohman replied that he was not interested, and that
it seemed strange that Werner had offered it to him im-
mediately after demoting him from leadman. Werner said
that maybe Lohman's light would shine brighter in that
field or he would find his true calling there. Lohman
said that he was definitely not interested in the supervi-
sory vacancy. Werner said that it was better than no job
at all.4 3 Lohman said that he was not surprised at this,
that all this was happening because there had been a pat-
tern of harassment ever since the union meeting. Werner
acted surprised and said, "what meeting?" 44 Lohman
*4 Streilein was not Lohman's immediate supervisor, and there is no
evidence that he was present during the October 6 incident described in
the warning notice Moreover, uncontradicted evidence regarding a
Werner-Lohman-Streilein conversation just before the October 8 begin-
ning of Lohman's shift shows that Streiein was then unaware of Loh-
man's October 7 demotion.
4- My findings regarding the discussion of a supervisory job are based
on Lohman's testimony. Morrison, who was still in Respondent's employ
at the time of the hearing and was called by the General Counsel as an
adverse witness. was not asked abolut this part of the discussion In view
of this absence of corroboration for Werner's denials, and for demeanor
reasons, I do not credit such denials See also infra at fn. 87.
'4 As previously noted, Werner testimonially conceded that he already
knew about the October 4 union meeting.
207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that if Werner did not know about the meeting it
could not be relevant to the proceedings.
During this conversation, Lohman, as usual, had a
cloth towel tied to his belt. Werner asked him how many
he had at home.4 5 Lohman said that he estimated he had
five to seven. Werner asked when was the last time
Lohman had received some from Heskett. Lohman said
he had never received any from Heskett. Lohman said
that at one time the towels had been freely available, and
he had been openly carrying one, and using the towels
continuously ever since. Werner said that the towels
were company property, and asked whether he had au-
thorization from anyone from management to use them.
He said no. Werner told him to wash and iron them
carefully, to fold them, and to bring them all to Werner
in his office before starting work the next day. Lohman
said that he would.
Werner then asked Lohman what he knew about the
stealing that had been taking place. Lohman said that he
knew nothing about it. Werner said that Lohman must
be very stupid, and that Werner was disappointed in him
and had thought he was smarter than that. Lohman
asked whether Werner wanted Lohman to make up a lie
to please Werner. Werner said no. Lohman said that
there was a lot of harassment and the employees were
unhappy. Werner said, "Well, the honest employees are
all one big happy family, aren't they?" After he asked
this question a couple of times, Lohman replied that not
all the honest employees were happy. Lohman asked
what he was to do now, since he was no longer leadman.
Werner obscenely told him to return to his work sta-
tion.4 6
On the following day, October 8, before punching in,
Lohman went up to Werner's office and gave him five
towels, washed and folded but not ironed. Lohman said
that these were all the towels he had. Werner said
"you'll find more." Then, Lohman asked Warehouse
Manager Streilein what to do. Streilein, whose signature
with an October 8 date appears on the warning and de-
motion slip shown to Lohman on October 7, said that
Lohman should know, since he was leadman. Werner
and Lohman told Streilein that Lohman was no longer
the leadman. Then, Streilein said that he would be down
in a half hour or so. Lohman went downstairs and tried
to do what needed to be done.
Lohman worked from 3 p.m. on October 8 to 2:30
a.m. on October 9. Then, Hougham told Lohman to ac-
company him to the receiving office, where Hougham
gave him a termination notice and told him to read it
and to acknowledge by his signature that he had read it.
As a reason for the termination, this notice bore an "X"
before the printed entry "Dishonesty." Under "Re-
marks," the notice said, ". . . You were observed leav-
ing the premises with company property ([cloth] towels).
These were provided for use in the plant and were not
to be taken home. This is theft and cannot be accepted.
Your termination is effective immediately." Lohman said
that it was ridiculous that what he had been openly
4' This finding is based on Lohman's testimony. For demeanor rea-
sons, I do not accept Werner's denial.
46 This finding is based on Lohman's testimony. For demeanor rea-
sons, I do not accept Werner's denial.
doing for over a year was now being considered stealing,
and asked whether his signature meant that he was en-
dorsing the conclusions of what it said. Hougham said
no, Lohman's signature just meant that he had read it.
Lohman signed the notice, which bears the typewritten
date of October 9. Lohman credibly testified that his sig-
nature thereon, which is dated October 9, was signed
and dated by him on that date. He was not asked wheth-
er Hougham's and Werner's signatures, both dated Octo-
ber 9, were on the document when Lohman signed it.
Werner testified that Lohman had been using the re-
turned towels "I'm sure from the time I arrived." Initial-
ly, Werner testified that "We assume that he returned all
the company property." Then, when asked, "You did
assume that he returned it all?" Werner said, "We
assume that whatever we asked him to return, he identi-
fied as the company property. Whether he in fact did or
didn't, I don't think we'll know."
My findings as to the events after Lohman punched in
on October 8 are based on his testimony. Respondent did
not produce Lohman's timecard for that shift, or any
Lohman timecard for any subsequent shift. Hougham tes-
tified that on October 7 he saw from an upstairs landing
"a cloth towel" in Lohman's back pocket as he was get-
ting into his car, no earlier than 11 p.m., to leave for the
day. Hougham went on to testify that on October 8,
without consulting Werner, he typed up, with a typed
date of October 9, a termination notice for Lohman
which stated that he had been seen leaving the premises
with cloth "towels" belonging to Respondent. (Hougham
testified that he had not previously seen Lohman take
any towels home.) Hougham further testified that early
in the afternoon of October 9, in the front vestibule of
the building, he told Werner that Hougham had seen
Lohman leave "with the towel," had written him up for
that, and was terminating him for that, to which Werner
replied that Lohman was getting what he deserved for
taking the product. On October 7, the day Hougham al-
legedly observed Lohman leaving the plant with a towel,
Werner had told Lohman to wash, iron, and return the
towels in his possession; but Hougham testified that
during the alleged October 9 Hougham-Werner conver-
sation, Werner said nothing about this October 7 conver-
sation with Lohman. According to Hougham, he gave
Lohman this termination slip in the supervisors' office
later that day, October 9, shortly after Lohman reported
to work at 3 p.m. Werner testified that Hougham came
to Werner in his office on October 8, before Lohman
punched in at 3 p.m., and said that on October 7
Hougham had seen Lohman leave with cloth "towels."
According to Werner, he told Hougham that Lohman
had admitted taking company property and had been
asked to return it. Werner went on to testify that the
afternoon or early evening of October 8, after Lohman
started to work, Werner went back to Hougham "to
make sure he was aware of what he saw"; that Hougham
was sure; and that Werner thereupon instructed
Hougham to "go ahead and complete the disciplinary
report at the conclusion of the shift, to go ahead and act
on the disciplinary report, which is what he did."
Werner testified that it was he himself who decided to
208
THE MARTIN-BROWER COMPANY
discharge Lohman. Werner initially testified that
Lohman brought back the towels on the afternoon of
October 9 and was discharged on the morning of that
day. Later, Werner testified that Lohman's separation
took place at the close of Lohman's shift, which began at
3 p.m. on October 8. Still according to Werner, he him-
self reviewed and signed the termination slip on the
morning of October 9, after Lohman had seen and signed
it. In view of the inconsistencies in Hougham's and
Werner's testimony regarding the hour of the day when
Lohman received his termination notice; regarding the
substance, date, and location of Hougham's alleged
report to Werner about Lohman's alleged October 8 con-
duct; regarding who decided on his discharge; and re-
garding who initiated preparation of his termination
notice, I accept Lohman's testimony regarding what hap-
pened after he clocked in on October 8.
Werner initially testified that Lohman was discharged
for poor performance and because he admitted removing
company property from the premises, then that he was
discharged solely for the latter reason and "whether or
not he brought [the property] back is immaterial," then
that he was discharged on the basis of Hougham's report
(received by Werner after Lohman had told him about
having several towels at home) that Lohman had re-
moved company property "and the confirmation of the
return of company property," and then that Hougham's
report "really didn't have anyting to do-that had some-
thing to do with the decision, but the fact that Lohman
returned with company property was the decision-was
the basis in tying the two incidents together for the ter-
mination."
Hougham testified that in the summer of 1980, after he
told Werner that Hougham had seen Lohman with
"towels," Werner told Hougham to get "the towel" from
Lohman and let him know that he was not to have any
of the towels; and that Hougham did so. Hougham went
on to testify that Lohman returned 6 to 12 towels to Su-
pervisor Morrison, and told Hougham that he had
brought them back from home. Morrison did not begin
working at the Manassas facility until after the Labor
Day 1980 weekend, and he testified that his only conver-
sation with Lohman about towels was the conversation
(described supra) which included Werner and during
which Lohman was told to bring back the towels. As
found supra, this conversation occurred on October 7,
and Lohman brought the towels to Werner. I do not
accept the testimony of Hougham summarized in this
paragraph.
4. The discharge of Burrell, Heskett, and Posey; the
separation of Payne; further alleged interference,
restraint, and coercion
a. Background
In early April 1980, Respondent discharged employee
Spitler for reasons immaterial here. About early July,
during a hot spell, Spitler began paying frequent visits to
the warehouse, during which he would walk in the
freezer "like to cool off." During this period, and prior
to August 4, employee Posey made sure that Spitler left
the warehouse empty-handed. On August 4, Spitler, who
at the time appeared to be under the influence of drugs,
came into the freezer and asked Posey, ". . . what can I
steal?" Posey replied that he could steal anything he
wanted, and that the risk was Spitler's and not Posey's.
After seeing Spitler look at two steaks, Posey left the
freezer and told Supervisor Streilein that Spitler was
going to steal merchandise out of the freezer. Then,
Posey returned to the freezer. When he left the freezer,
he saw Spitler going back into the freezer with a set of
bolt cutters. At this point, Posey again went to Streilein,
and said that Spitler had a set of bolt cutters in his hand
and was going to cut the lock off the back door. Then,
Streilein fetched Warehouse Manager Kimberly. The
two of them walked back though the freezer, came back
out and went outside, and came back in with Spitler. A
pile of merchandise (cases of ham, butter, chicken, and
other items) had been stacked (inferentially by Spitler)
just inside the warehouse door leading to the railroad
tracks; the door lock had been cut and the door had
opened;4 7 and the merchandise stacked there had fallen
from the warehouse to the ground. Kimberly told Posey,
Lohman, and another employee to pick up this merchan-
dise, and then escorted Spitler out of the area.
A little later, Kimberly told Werner that Spitler and
another former employee were removing cases of mer-
chandise from the premises. The police were called, but
before they arrived, Spitler pulled a knife and broke
away. The police then left. About 45 minutes later,
Spitler telephoned Respondent, admitted what he had
done, and asked for the opportunity to return "to make
arrangements" with respect to what he had done. Then,
he returned to the facility on his own, in a car driven by
his father. Almost immediately on Spitler's return, Re-
spondent called for the police again. Before the police
arrived, Werner and Kimberly took Spitler to the confer-
ence room, where Werner asked if he would please give
Werner and Kimberly a written confession concerning
that afternoon's activities. Kimberly took down, and
Spitler signed, a statement which said, inter alia, that
Spitler and the other exemployee had moved three cases
of meat from Respondent's freezer to the other exem-
ployee's car and had driven off in it. Also, Spitler wrote
down a list of other employees and exemployees who, in
Spitler's opinion, were actively involved in stealing or
eating company property. 4' Among the persons on
Spitler's list were employees who will be referred to
herein as A, B, C, D, E, and F.49 The only alleged dis-
criminatee named in either of Spitler's statements was
Posey; more specifically, Spitler's statement as written by
Kimberly began, "We drove in to Martin Brower. I
came in, and met Phil Posey. He told me to do what I
wanted. (He left and was not involved.)" Spitler's state-
ments make no reference to his own conduct, seen and
testified to by Werner, in pulling a knife on the dispatch-
er. Spitler's conference with Werner and Kimberly took
47 Spitler later told Respondent that he had intended to cut the lock,
but found that the door was already open.
" The items stored in Respondent's warehouse include cookies, frozen
fruit juice, and frozen Danish pastry.
'4 In order to avoid possible injustice to such persons' reputation, arbi-
trarily chosen initials will be used herein to refer to certain individuals
accused but never convicted of theft
209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 3 hours, and ended after 10 p.m. During most of
this period, the police were waiting for Spitler in
Werner's office. Werner testified that Spitler "certainly
did not want to be arrested and he did not want to be
taken away." On a date not shown by the record, after
some plea-bargaining activity, Spitler pleaded guilty to
and was convicted of "misdemeanor theft."50
In mid-August after Spitler's apprehension, Respond-
ent changed the job title of Klouser from warehouse su-
pervisor to transportation supervisor and assigned him to
act as a fourth dispatcher during hours when there might
not normally be activity in the distribution center.5 '
Also in mid-August, Respondent arranged for more fre-
quent visits to the facility by the county police, and got
in touch with a security service to arrange for a security
guard. The security service did not have the manpower
immediately; but on an undisclosed date before Septem-
ber 16 arrangements were made for a security guard 24
hours a day on weekends, and from 5 p.m. until 8 a.m.
during the week. Also, during August and September,
Respondent added $5,000 worth of exterior lighting
around the perimeter of the building, put combination
locks on all the doors, changed all the locks, restricted
access to keys, and "aggressively enforced" the existing
policy that all doors remain closed and locked. On the
Labor Day weekend of August 31-September 2, Re-
spondent transferred two members of management from
other facilities to the Manassas facility.
On an undisclosed date prior to September 9, Re-
spondent arranged for a visit to the Manassas facility by
Tom Carter, who has at Respondent's Atlanta facility
the same responsibility as Werner has at the Manassas fa-
cility, and Director of Operations Edward R. Kowalski,
who works in Chicago, Illinois, and is Werner's and
Carter's immediate superior. On September 9, a date
when Spitler appeared in court, he asked Werner if there
was any possibility of Respondent's withdrawing the
charges. Werner said no. Spitler asked if Werner was
aware that the problem he was involved in was still ac-
tively going on. Werner said that he was, "to a degree."
Spitler said, "even though you got me .... it's still hap-
pening."
Kowalski and Tom Carter were present at the facility
on September 10 and 11. During this period, they inter-
viewed nine persons who were still in Respondent's
employ (namely, Posey, Heskett, Laymon, Klouser, and
employees A, B, C, E, and G) and also former employee
Spitler. 5 2 Of the nine interviewed persons who were still
in Respondent's employ, four (Laymon and employees
A, C, and E) were terminated immediately or almost im-
mediately; G was suspended immediately and was later
demoted to a job in another facility; and the rest were
sent back to work-namely, Posey, Heskett, Klouser,
and employee B. My findings as to the content of these
conversations are based on a composite of the contempo-
so Werner swore out a warrant for the other exemployee's arrest, but
the police could not track him down. As of March 16, 1981. that warrant
was still outstanding.
aL My findings in this sentence are based on Werner's testimony on
direct examination as Respondent's witness. Cf. infra fn. 64.
s2 A tenth employee came to the office on his own initiative on an
errand unrelated to the theft investigation. After being asked a few ques-
tions, he walked out of the plant and never returned.
raneous notes taken by Kowalski and Carter, which the
General Counsel offered into evidence without objection
or limitation, and credible portions of the testimony of
certain persons who were present (namely, Werner,
Posey, Heskett, Laymon, and Klouser).
The first two employees to be interviewed, A and C,
had both been named in one of Spitler's statements. Em-
ployee A stated, inter alia, that he had taken trash bags, a
couple of salt shakers, cloth towels, and, on two occa-
sions, coffee. He also alleged, inter alia, that Heskett had
taken a Frisbee. A employee further alleged that employ-
ee G, a member of management, had caught another em-
ployee stealing, but that employee had been fired for fail-
ing to show up; and that employee G had commented
that steak and a box or two of chicken were missing.
Employee A described Spitler as a "hard junkie" who
was "just crazy" and had smoked a "joint" in A's pres-
ence. Employee C stated, inter alia, that he himself had
taken cloth towels. He also alleged, inter alia, that Hes-
kett had got 20,000 towels, had opened boxes every
week, had eaten a lot of chocolate chip cookies, and,
when the facility opened up, had taken a couple of slices
of cheese. Werner testified that employee C said Heskett
had opened boxes of individual portions of jelly,
ketchup, fruit juice, and sugar cookies; no such notation
appears in Kowalski's or Carter's contemporaneous
notes. Employee C further stated that he had seen Spitler
shooting "dope" in the toilet; that Spitler was "always
wired up" and sold marijuana; that employee C had
heard a report that Spitler had named employees A, C,
and E as "taking stuff' because "he had it against us";
that employee C smoked marijuana at home; and that
employee C "would guess" employee E used it. Both
employees A and C were terminated that same day.
Spitler, whose criminal prosecution was still pending,
was the third person interviewed on September 10.
Spitler admitted having been "high on drugs" and steal-
ing a number of items from Respondent, including an
American fag. He alleged, inter alia, that employee G
had taken orange juice and probably more; that "maybe"
employee D had stolen things; that employee C had
taken a flag; that employee B had been a "pusher" of
marijuana and "pills"; that employee E had been a
"pusher" of marijuana, "hash," narcotics, and other
drugs, and had been given chicken by Spitler; that Posey
had seen Spitler steal cases of bacon, cheese, eggs, and
potatoes every month or 2 weeks; and that Heskett had
taken something "petty, but daily."
Then, Posey was called in. In response to questions, he
described his participation in the events which led to
Spitler's August 4 arrest, and said that he knew Spitler
had been back to the building on previous occasions.5 3
Posey said that he had stolen a truck 7 years earlier,
when he was 17 years old, and that employee B was his
best friend and was "quite tight" with Spitler. Posey said
that third-shift employee Laymon had a job lined up
s:" This finding is based on Werner's testimony, which: is consistent
with Posey's testimony and Kowalski's notes. Carter's notes allege that
Posey said lie "saw" Spitler taking certain items "Before [hel reported
him August 4." Posey testimonially denied having been seen Spitler take
anything before August 4.
210
THE MARTIN-BROWER COMPANY
with an employer whose name and address Posey gave,
and that Laymon was going to quit Respondent's employ
as soon as he finished his training. Posey said that
Laymon did not care how the freezer was kept or how it
was run, and asked if Posey could be transferred to the
third shift when Laymon left. Posey said that Laymon
and employee H54 had made statements to Posey which
indicated that they had been stealing, but Posey had
never seen them take any merchandise. Posey was asked
whether the employees ever put anything extra on the
trucks to enable the drivers to keep it. Posey said no.
Kowalski said that "I understand" Heskett had 10,000
cloth towels, after which management started "cracking
jokes" about Heskett's allegedly putting towels in the
produce room and in the thermal container which he left
in the cooler dock, and about his allegedly removing
hamburger meat from the freezer, carrying it to the
cooler dock, and removing it from the premises. Posey
said that nobody came to the freezer and took anything
without his knowing about it. Posey was asked whether
he had taken Pittsburgh Steeler glasses (see infra at fn.
97). He said no. Posey was asked if he had taken any-
thing. He said no, except for a case of greasy towels
which he had found in the dumpster. 55 Kowalski told
him that he had been doing a fine job, and told him to
go back to work.
The next employee interviewed was employee B. He
said, inter alia, that he "may have" two or three cloth
towels, that employee E had taken some cheese, and that
employee B had failed to report seeing Spitler put $500-
$600 worth of Respondent's product in the car of em-
ployee C, who drove employee B home. As to this inter-
view, Kowalski's notes state, "Heard Phil a Steelers
Cup-Case but don't know"; Werner testified that em-
ployee B "identified" Philip Posey "as having removed
[a case of] Pittsburgh Steeler glasses from our inven-
tory." Employee B described Spitler as a "junkie."
Spitler had described employee B as a pusher or user or
marijuana and "pills." Posey had alleged that employee
B used "dope." Employee B was not discharged at that
time.
Then, management interviewed employee Laymon.
Kowalski and Carter asked whether he was going to
leave Respondent's employ. He said that he had been
looking for a job, but had no immediate replies. Manage-
ment asked whether he wanted any type of recommenda-
tion, and whether, when he left, he wanted Respondent
to report that he was fired for stealing. Laymon, who
had recently decided to marry a woman with whom he
had been keeping company, said no. Laymon asked
Werner whether Kowalski and Carter would pursue any
statement Laymon made. Werner said no. Management
said that if I.aymon told the truth about his own activi-
ties Respondent would tell prospective employers that he
had resigned. Laymon credibly testified that he under-
"4 See supra fn. 49 Employee 11 was discharged on September 14 for
suspected theft. A different employee with the same name was in the unit
on October 6.
65 Posey had found this case in the dumpster when he went out to
empty some garbage. After his shift was over, he removed them from the
dumpster and openly carried them in his hand out the door and into his
car. He took them home, washed and bleached them, and kept them.
stood that he would not be sent to jail if he told the
truth.
Management then asked him a number of questions.
After he had answered them orally, management gave
him a pen and a piece of paper, and told him to write
down everything he could remember. After he had com-
pleted writing his statement, management told him to
sign and date it. Management then read the statement.
Laymon's written statement asserted, inter alia, that at
the request of Supervisor Klouser, who was then Lay-
mon's and Burrell's immediate superior, Laymon and em-
ployee I had put steak, cake, and "fries" (potatoes cut up
for frying and then frozen) into Klouser's car, and Bur-
rell had put "fries" and "blue meat" (quarter-pound
frozen hamburger patties) into Klouser's car in the
winter of 1979. Further, Laymon's statement asserted
that in the winter of 1979 Burrell had removed eggs and
cheese for personal consumption;5 6 and that Heskett had
removed cloth towels "and other items" during summer,
fall, and the following months of 1979 and 1980 and
"second week in August Heskett removed flags, 15 to 25
from warehouse, spring '80."5' Laymon's statement fur-
ther alleged that employee B had offered "Black Beauty"
pills to "keep going," and had offered in March or April
1980 to sell Laymon "coke." Laymon's statement further
alleged that employee I had taken orange juice. Also,
Laymon's statement alleged that employee D had taken
30 to 50 50-pound cases of "blue meat," 8 to 10 cases of
hash browns, 20 to 25 cases of orange juice, and 15 to 20
cases of bacon; and that he had offered to sell Laymon
some of this merchandise. Laymon's statement asserted
that he himself had taken grapefruit juice, steaks, and a
napkin holder. In addition, Laymon's statement contains
language suggesting that he and employee H had re-
moved money from a soft drink vending machine.
Carter's and Kowalski's notes of this interview, and to
some extent Laymon's testimony, show that Laymon
made certain other allegations which were not included
in his written statement. Thus, Kowalski's notes state,
"Posey asked for glasses (Pittsburgh Steelers) I didn't,"
followed by words which I am inclined to read as "do
it." Such notes further state, "Phil asked to remove
frozen product from him/meat, OJ, steaks." Carter's
notes state, "Posey wanted glasses-Steeler," and then,
in much smaller handwriting, "meat, 01, steaks." Werner
testified that Laymon "identified" Posey as having "re-
moved Pittsburgh Steeler glasses from our inventory."5 s
Further, according to Carter's and/or Kowalski's notes,
Laymon said during the interview that he had taken a
case of glasses and a McDonald flag, that Heskett had
taken "thousands" of cloth towels, and that Heskett had
"to have one or two of every item in the warehouse,"
including window cleaner (see infra, The Remedy).
These matters were not included in Laymon's statement.
a6 Kowalski's and Carter's notes specify dozens of eggs several times.
Kowalski's notes specify two bricks of cheese "in lunch box."
57 Carter's and Kowalski's notes identify these as McDonald flags.
35 Laymon testified before me that he could not recall whether during
the September 10 interview he mentioned the alleged incident involving
Posey and the Pittsburgh Steelers glasses.
211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After reading this statement, management did not point
out these omissions to him.
After signing this statement, Laymon resigned, and
went to his locker with Werner to obtain personal be-
longings. Management told Laymon never to get in con-
tact with Respondent and never to return to the prem-
ises, and he complied with these instructions. Thereafter,
Laymon obtained a job in a warehouse being operated
by another firm. In his employment application he put
Respondent as his prior employer. Laymon testified
without objection that his new employer told him that
Respondent had given him a good recommendation.
Laymon's interview ended at 1:15 a.m. on September
11. The next interview took place about 11:30 a.m. that
day, with employee E. He stated, inter alia, that employ-
ee B "probably stole product." As to E's allegations re-
garding Burrell, Carter's notes state in their entirety,
"James [illegible] [Burrell] knows-Sent girl friend up
for Customer P.U. [Burrell] told him 3rd shift"; and
Kowalski's notes state in their entirety, "Burrell told
about [illegible name beginning with J] making out cus-
tomer pick up 1-1/2 yr. ago-Sent girl here as cust to
pick it up-Don't know what [Burrell] stole but I know
he's taking stuff. He said 3rd shift is easy to work cause
nobody here to watch it." On direct examination,
Werner, who was present during this interview, testified
that employee E identified Burrell as having removed
produce items (testimony which I do not believe, in view
of Kowalski's inconsistent notes and for demeanor rea-
sons) and also as "identifying the fact that third shift was
very opportune shift to work for the removal of compa-
ny property." As to employee E's allegations regarding
Payne, Carter's notes state in their entirety, "Cheese in
lunch boxes Payne-Super Man pushes too hard," and
Kowalski's notes state in their entirety, "Some Boys took
cheese out in Lunch Boxes (Frank Payne)." Werner tes-
tified that employee E identified Payne as having re-
moved cheese and (from time to time in Werner's testi-
mony) other produce items (see infra sec. II,D,I). Em-
ployee E was discharged that same day.5 9
Employee Heskett was also interviewed on September
10 or 11; Carter asked the questions in the presence of
Werner and Kowalski. Carter asked whether Heskett
knew about anyone who had taken five cases of promo-
tional Pittsburgh Steelers glasses (see infra at fn. 97).
Heskett said that he had no knowledge whatever of the
incident. Carter asked if Heskett knew if anyone was
taking any of the McDonald corporate flags. Heskett
said no. Carter asked who would want one. Hesektt said
that he did not know. 6° Carter asked if Heskett knew of
anyone who was taking meat, cheese, or lettuce. Heskett
said that two named employees who had been terminated
some months earlier had boasted that they had done so.
Management asked whether Heskett had been taking
b9 As an adverse witnes, for the General Counsel, Werner testified
that E was discharged for the use and possession of drugs as well as the
awareness of theft of company property. As a witness for Respondent,
Werner testified that E was discharged for theft.
'o In 1966 and 1967, when Heskett was in high school, he had started
a collection of corporate flags. At the hearing, he admitted having one
McDonald's flag, which according to him was sent to him by McDon-
ald's at his request, and before he began working for Respondent. See
discussion under The Remedy, infra
cloth towels. Heskett said that he had some cloth towels.
Heskett stated that in late spring, Warehouse Manager
Kimberly had told the employees to stop breaking into
cartons of juices, cookies, and cloth towels. Heskett went
on to say that, on this occasion, Kimberly said that
thereafter he would from time to time authorize the
placement on a supervisor's desk of a box of cloth towels
which the employees could use for sweat towels; and
that, thereafter, nobody opened boxes of cloth towels
without authorization. Heskett further said that during
the summer of 1979, Kimberly had told the employees
that they could use and take home the tubes of orange
juice in damaged cases, but that this practice had ended
about September 1979. Heskett further stated that Ballen-
tine, Werner's predecessor as center manager, had issued
a memorandum that any employee who was caught con-
suming articles owned by Respondent would be immedi-
ately terminated. Carter asked whether Heskett had any
ideas about how to control theft at the plant. On the
basis of some business management courses which Hes-
kett had taken, he suggested some internal control tech-
niques, and also suggested that damaged goods be given
or sold at discount to employees. Carter told Heskett
that if he saw anyone taking anything, to write down the
person's name, put the paper in an envelope, and give it
to the supervisor or the warehouse manager, and that
Heskett's name would be held in confidence. Heskett
was thanked for his time, and told he could go back to
work. He did so. During this interview, nothing was said
about Heskett's putting his lunchbox in the cooler area of
the warehouse, or about discharging or disciplining Hes-
kett in connection with towels or any other matter. 61
The next to last individual to be interviewed was
Klouser, whom Werner at Kowalski's instructions called
in from home to be interviewed. Werner testified that he
attended all the interviews except the first and third
(with employees A and C, respectively) and the last two
(with Klouser and another member of management em-
ployee G). Werner testified that Kowalski and Carter de-
cided to interview these last two outside Werner's pres-
ence, that Kowalski and Carter did not explain why, and
that Werner did not ask why.62 For demeanor reasons, I
accept Klouser's testimony that Werner was present
during Klouser's interview. Klouser was asked who was
stealing meachandise. Klouser replied that so far as he
knew nobody was stealing anything. Management said
that two or three witnesses had seen him stealing.
Klouser said that he had taken merchandise for his per-
sonal use. Management asked who else had been taking
merchandise from the warehouse. Klouser said, inter alia,
that Burrell, Heskett, and employee D had taken mer-
11 My findings as to the contents of the interview are based on Hes-
kett's testimony, much of it uncontradicted. For demeanor reasons, I do
not accept Werner's testimony that during this interviews, Heskett ad-
mitted taking an unspecified number of packets of salt, jelly, and ketchup,
other small items that could be concealed in his lunchbox, and, possibly,
American flags. Kowalski and Carter did not testify, and Kowalski's con-
temporaneous notes (see text attached to fn. 65, infra) were not produced.
a2 However, just before Werner so testified, I asked him. "Did you
notice whether Mr. Kowalski was writing during the interviews with Mr
Heskett and Mr. Klouser?" Werner did not then say that he did not
attend the Klouser interview, but instead testified, "I don't believe that
[Kowalski] made any written entries dunng that period of time."
212
THE MARTIN-BROWER COMPANY
chandise, and that employee Posey may have done so.
Klouser said that Burrell had been taking things from
Respondent for personal use, and described one alleged
incident where Burrell and former employee J had taken
a case of meat and Burrell "got uptight" because he had
not received his share. Management said that for
Klouser's misconduct and mismanagement he was to
tender his resignation effective no later than October 15,
giving a reason and a date. Klouser prepared a written
summary of his allegations regarding the dishonesty of
persons other than himself.6a Klouser testified that he
"owed it to Mr. Werner" to write this summary because
Werner had said that he was not going to press charges
against Klouser for taking merchandise, but that Werner
just wanted him to leave.
No later than September 23, Klouser told Werner that
Klouser was resigning effective October 15. Klouser was
actively employed in the warehouse as a third-shift
dispatcher/supervisor until October 8, and remained on
the payroll until the week ending October 15, for which
week he was paid for vacation days he had accumulated.
As previously noted, Werner testified on direct examina-
tion that Klouser had been assigned to work as
dispatcher/supervisor on this shift in order to "comple-
ment" the security guard during hours when there might
not normally be activity in the distribution center.64
Klouser testified for Respondent upon being advised by
Werner that Klouser had been subpoenaed, and without
receiving the subpoena. He wore to the site of the hear-
ing a garment which (he had admitted to Burrell)
Klouser had taken from then Warehouse Supervisor
Kimberly's office.
Later that afternoon employee G was interviewed. He
stated, inter alia, that he thought Posey, employee B, and
others used marijuana. Employee G was immediately
suspended.
Kowalski and Carter both took notes of the September
10 and 11 interviews. General Counsel's Exhibit 46,
which consists of notes taken by Kowalski, contains
63 As photocopied, this summary consists of two pages, each signed by
Klouser (the second page in two different places, but this may originally
have been two separate sheets) hut none of them dated. Both Klouser and
Werner testified that Klouser wrote these pages on Friday. September 26.
However, Klouser testified that he was alone when he wrote them, and
Werner testified that he was present when Klouser wrote them Also,
Klouser testified that he did not speak about theft with Werner between
the Kowalski-Carter-Werner interview and Klouser's preparation of these
pages, while Werner testified to three conversations during this period.
Furthermore, although Burrell sas not terminated until October 6,
Klouser, wh:,ise last day of active employment was October 8 and who
was dropped from the payroll on October 15, stated in his alleged Sep-
tember 26 memorandum that Burrell had been taking merchandise from
Respondent 'for his last q months he was there" In any event, although
Werner initialls testified that until October 6 he had no information from
Klouser implicating Burrell or Heikett, Werner eventually corroborated
Klouser's testimony that the alleged September 26 documents contained a
summary of what tie had told Werner, Kowalski, and Carter on Septem-
ber 1 Carter's September II notes contain little reference to the Klouser
interview and, for reasons unexplained in the record, Kowalski's other-
wise detailed September 11 notes did not advert thereto
14 On cross-examination. Werner testified that Klouser was "not
really" supposed to be helping the security guard, that Klouser was
working on the third (II pm. to 7 a.m.) shift with another supervisor
whom Werncr did not identify, and that Klouser had been assigned to
this job because "the high degree of activity in the transportation office
really necessitated some help down there"
rather detailed notes of all the interviews except those
with Heskett and Klouser, whose interviews are not de-
scribed at all. Heskett credibly testified that Kowalski
took notes during Heskett's interview with Kowalski,
Carter, and Werner, 65 but such notes were not pro-
duced, nor was their absence explained. Nor does the
record explain the absence of notes by Kowalski about
the Klouser interview. Werner testified that on Septem-
ber 11, Kowalski and Carter gave their notes to Werner,
who xeroxed them and returned the originals.
Werner admitted that between the September 10-11
interviews and the separation of Burrell, Heskett, Posey,
and Payne, Werner learned nothing of substance about
their alleged dishonesty that he had not previously
known (see also supra at fn. 63). On September 16,
Werner advised Respondent's security service, in writ-
ing, of the names of the employees who were to be ad-
mitted to the premises. Included were the names of
Payne, Burrell, Heskett, Posey, Jolley, and employees B
and I. The letter stated that Laymon and employees A,
C, E, G, and H (inter alia) were "unauthorized on the
premises for any reason." On September 30, Werner
went to Quebec, Canada, to attend the annual meeting of
Respondent's distribution center managers. Also present
were, inter alia, Kowalski and Director of Industrial Re-
lations Siebert; their alleged conversations with Werner
are discussed infra section II,D,I.
Werner came home late Friday night, October 3. He
went to the warehouse on October 4 (the day of the
union meeting) and on the evening of October 5. As de-
scribed in detail, infra, the October discharges allegedly
for suspicion of theft began on October 6.
On October 9, Werner conducted a meeting of all first,
second, and some third-shift employees. He said that Re-
spondent had been conducting an investigation of the
theft of company property, that Respondent felt it had
concluded the major portion of its investigation, and that
there was nothing for anyone to be further concerned
about regarding his job.
b. Burrell
Gary William Burrell was hired by Respondent in
March 1979 at $5.40 an hour. In June 1979 he received
an increase to $6, inferentially in connection with com-
pleting his probationary period. In August 1979, he was
promoted to leadman, and his hourly rate was increased
to $6.25. He worked on the third shift until May 1980,
when he started working on the first shift.
On an undisclosed date in late June or late July 1980,
Werner made an "initial overture" to Burrell about a su-
pervisory job. The two discussed it casually during the
course of the workday later in the summer. In late
August 1980, then Warehouse Manager Kimberly ap-
proached Burrell and told him that he could have the
job of warehouse supervisor on the third shift if he
wanted it. The following day, Werner "basically" of-
fered Burrell the job, but said that it would take up a lot
of Burrell's time and he might have to give up his part-
f6 For demeanor reasons. I do not credit Werner's denial. See infra at
In 87
213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time job with another firm, A & P. Burrell said that he
was unsure whether he wanted to go back to the third
shift, Werner said that he would give Burrell more time
to think about the promotion. About September 1,
Werner said that the job was Burrell's, and gave him
until September 15 to give a definite answer. Burrell did
not give Werner a definite answer by September 15.
About the third week in September, Werner asked him if
he wanted the supervisory position.6e Burrell still failed
to give a definite answer. Before Werner's September
30-October 3 trip to Quebec, management did not inter-
view Burrell regarding theft. As described in greater
detail infra section II,B,4,e, in mid- or late September
Werner told employee Payne that Burrell was a good
employee and was not going to be fired.
As to some extent noted previously, Burrell was the
first of Respondent's employees who discussed unioniza-
tion with the M & M driver and with a union representa-
tive. Burrell attempted to obtain other employees' names
and addresses so authorization cards could be mailed to
them, initiated and participated in the October 2 arrange-
ments for the October 4 union meeting, with a clipboard
sat up at the front of that meeting, signed a card there,
handed out cards to other employees, and urged other
employees to support the Union.
Burrell's work shift began at 7 a.m. The morning of
Monday, October 6, was a foggy morning. When Burrell
parked his car in the company parking lot that morning,
he parked across the line between two parking spaces.
About 8 or 9 a.m., Burrell was approached by Ware-
house Manager Streilein, who had seen Burrell leaving
the Holiday Inn after arranging for the October 4 meet-
ing and in the afternoon of October 4 had been advised
of the union meeting that morning. Streilein gave Burrell
a disciplinary report based on his taking two parking
places, and signed by Streilein and Werner. This was the
first such report Burrell had received in 18 months of
employment. Burrell said, ". . . this is crazy . . . that
man is just picking at little [things]." Streilein replied, "I
know, but I've got a job to do." Burrell explained that it
was foggy, and remarked that Werner had not warned
him about this kind of parking before, when Burrell had
done it intentionally.6 7 Burrell then told Streilein to tell
Werner that the employees had had a meeting at the
Holiday Inn. Streilein said that he knew all about the
Holiday Inn and about the union cards being signed.
Burrell told Streilein to tell Werner that Burrell was
going to vote for the Union. Streilein then told Burrell
to go back to work.
Later that day, Streilein told Burrell that Werner
wanted to see him in the office at 3 p.m. "on your time."
After punching out at 3 p.m., Burrell's usual hour, he
went to Werner's office, where he found Morrison and
Werner. After making some small talk, Werner asked
whether Burrell had considered the supervisory job. Bur-
66 This finding is based on Werner's testimony. I discredit as highly
improbable Werner's testimony that he asked Burrell about the supervi-
sory job in order to induce Burrell to volunteer the truth about the theft
situation. Such remarks would be unlikely to stimulate a truthful confes-
sion, let alone a truthful protestation of innocence.
6e The complaint does not allege that the issuance of this disciplinary
report was unlawfully motivated.
rell said that he had decided not to take it because he did
not want to work third-shift hours (II p.m. to 7 a.m.).
Werner said, ". . . that's too bad," and asked how Bur-
rell would like to work second shift. Burrell asked
whether he had a choice. Werner said, "what do you
think?" Burrell said, "I don't know, that's why I'm
asking." Werner asked whether a second-shift schedule
would conflict with Burrell's part-time job for A & P.
Burrell said that A & P would "work around" his job for
Respondent. Werner said, "that's too bad, you won't
have to worry about it anyways."
Then, Werner took some colored markers from his
briefcase, named a color for Heskett and a color for em-
ployee B, and then picked a color for Burrell. Thinking
Werner was going to give him the marker, Burrell went
to get it, whereupon Werner told him to sit down. Then,
Werner asked, "How were the Pittsburgh Steeler glass-
es?"; there is no evidence that anyone had ever alleged
to Werner that Burrell had taken such glasses. Burrell re-
plied that he did not know, that he had never seen one,
and that these glasses were kept in the "dry" section of
the warehouse whereas he worked in the freezer section.
Werner told him to look at one in Werner's bookcase.
Burrell looked, and then said, "this is crazy, I don't have
any of those things." Werner asked him how the "blue
meat" and "red meat" had been, and about some cheese
and egges in his lunchbox. Burrell replied that he did not
know what Werner was talking about, and denied even
having a lunchbox. Burrell further said, ". . . this is
what I get for being loyal" to Respondent. Werner said
that Burrell had commented it was easy to steal on night
shift. Burrell said that he did not recall saying that.
Werner asked what Burrell had that was Werner's.
Burrell said that in his locker he had a freezer suit, a
clipboard, and pens. Werner told Burrell to clean out his
locker. Burrell asked whether Werner was firing him.
Werner said "yes. . .Burrell, you're history," told Morri-
son to walk Burrell to his locker, and told Burrell not to
come back on the premises, that his paycheck would be
mailed to him. Morrison walked Burrell to his locker.
Burrell remarked that Werner was "crazy." Morrison
asked why Burrell had not disagreed with Werner. Bur-
rell replied, "it doesn't do no good, it's like talking to a
wall . . . I'd get better action elsewhere." He gave Mor-
rison Respondent's property and left the premises. 68
For unexplained reasons, Burrell's termination notice is
dated October 27, 1980, 3 weeks after his discharge.
"Dishonesty" is checked, and under "Remarks" is the as-
sertion. "Employee was implicated in theft of company
property, terminated 10/6/80."
c. Heskett
William Leo Heskett was hired by Respondent in Feb-
ruary 1979, at $5.40 an hour plus a 15-cent shift differen-
tial. In March 1979 he received an increase to $6 an
6s My findings as to the discharge interview are based on Burrell's un-
contradicted testimony. Morrison testified that he was present to serve as
a witness during a conversation after October 3 between Burrell and
Werner, but that Morrison could not remember what was said, or wheth-
er Burrell was discharged or merely talked to. Werner was not asked to
describe the discharge interview.
214
THE MARTIN-BROWER COMPANY
hour, inferentially because he had completed his proba-
tionary period. In March 1980 he received an increase to
$6.48 as part of an annual wage adjustment for the facili-
ty. In late June 1980 he received a written disciplinary
report for improperly stacking freight on the pallets. In
early July, he received a written disciplinary report for
building poorly constructed pallets and for failing to
adhere the color coded dots (used to help the driver in
unloading and the customer with his product rotation) to
a route he picked. Employee Zoretic testified that Hes-
kett was one of the fastest pickers.
Beginning in the summer of 1979, Heskett used around
the plant, as sweat rags, towels taken from the boxes
made available to the employees before April 1980 and,
on four occasions, towels taken from the "recoup" area
or given him by the mechanics. As previously noted, in
April 1980 Werner saw him with two new towels, found
out from him that he had obtained them from a box
made available by supervision, and then put a stop to the
box practice. Thereafter, Heskett continued during hot
weather to use towels as sweat rags around the plant.
Nothing was said to Heskett during this period about this
practice.6 9 Indeed, when telling Heskett to come to the
interview with Kowalski and Carter on September 9 to
10, Werner told him to bring a towel as his "trademark."
As previously found, during this interview Heskett said
that he had some towels, and described the discontinued
practice of making them available for employees to use
as sweat towels. It is uncontradicted that during this in-
terview nothing was said about discharging or disciplin-
ing him in connection with towels or any other matter.
Heskett attended the October 4 union meeting at the
October 2 urging of Burrell and Reid while at the ware-
house, and signed a card there. Heskett worked a shift
on Sunday, October 5, beginning at 6 a.m., and reported
to work at 3 p.m. on October 6. At or about I I p.m.,
near the end of his regular shift, Heskett was called to
Werner's office, where Heskett found Werner and Morri-
son. Werner remarked that he had only two different
colors of Magic Markers. He said that he had heard that
Heskett had some complaints about the new picking
system (see infra sec. 11,C). Heskett said nothing. Werner
asked Heskett if he knew what Armageddon meant. Hes-
kett said that it had something to do with the end.
Werner said that he had information that Heskett had
taken 16,000 to 20,000 cloth towels, but that Werner did
not really think the figure was that high. Heskett said
that he had 16 to 30 towels, that he was using them as
sweat rags. and that in 1979 Warehouse Manager Kim-
berly had authorized their use for that purpose and to
clean up spills and other messes. Werner said that, before
sending Heskett "down the road," Werner wanted to tell
him why he %was there. Werner said that he had informa-
tion that Heskett was accumulating mass quantities of
cloth towels. Werner further said that he had informa-
tion from a former employee that Heskett had been
taking lettuce, cheese, and meats. Heskett said that he
69 This finding is based on Heskett's tesilmony. For demeanor reasons,
I do not accept Streilein's testimony that he told Heskett in late April or
early May 1980 not to use towels, and neser thereafter saw him with
towels; or Werner's testimony in effect, that he never saw Heskett %with
towels after Junle 1lIS0
had not taken any of these. Werner said, "Well, I didn't
say you stole it." Werner said that he had information
from a former employee that Heskett had been taking
Frisbees, and that Werner had information that Heskett
was breaking into cases of juice and cookies for his own
consumption. Heskett did not reply. Werner said that his
lawyer was in the other room. Towards the end of the
conversation, Werner said, "I frankly don't give a damn
how many towels you have taken. As far as I am con-
cerned, you can hold a huge yard sale with them or use
them for rags for your car. But if I ever catch you
coming back here again or on this property, I will call
the police and have them throw you in jail." Werner said
nothing about flags, packets of jelly or condiments, pro-
motional glasses, Heskett's putting his lunchbox in the
cooler area of the warehouse, or having moved items
from the plant in his lunchbox. Nor did Werner tell Hes-
kett the names of the persons who had allegedly accused
him of theft, or the dates when he had allegedly taken
things.7
For unexplained reasons, Heskett's termination notice
was not prepared until October 27. "Dishonesty" is
checked, and under "remarks," in Streilein's printing, is
the assertion, "Employee was implicated in theft of com-
pany property."
d. Posey: alleged unlawfld interrogation by Supervisor
Werner
Phillip Isaac Posey was hired by Respondent in De-
cember 1979 at $5.40 an hour. A few days later, Supervi-
sor Hougham told him that he had caught onto his job
very quickly and was very accurate. He later received
an increase to $6, inferentially in early February 1980
when his probationary period expired. On February 20,
1980, he received a written disciplinary report for being
5 minutes late to work. In March 1980 he received an
increase to $6.48 as part of an annual wage adjustment at
the facility.
On an otherwise undisclosed date between August 5
and September 9, Werner asked Posey about stealing in
the warehouse. Posey said that he knew from "ware-
house talk" that stealing was going on, but had not actu-
ally seen anyone steal anything. Werner asked Posey
about some Pittsburgh Steeler glasses (see injra at fn. 97).
Posey said that he had not seen any. Werner showed him
one, and asked what he knew about it. Posey said that
this was the first time he had seen such a glass. Werner
asked Posey to quit toying with Werner and to tell the
truth. Posey said that he was telling the truth. Werner
said that people were walking out of the front of the
warehouse with merchandise. Posey said that he was not
aware of that. Werner said that it might take him I to 2
years to get the thieves. but he would get them, and see
to it that they were sent to jail and their families were
70 My findings in this paragraph are based on Heskett's testimony,
much of which is uncontradicted For demeanor reasons. I do not accept
Werner's denial of the remarks about the picking form, his indifference to
the number of towels Heskett allegedly took, and the presence of a
lawyer. I do accept Werner's denial that dunng this conversation his
lawyer was nearby, and conclude that Werner's contrary claim to Hes-
kent was designed to discourage Heskeit from strongly protesting his dis-
charge.
215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
put out in the cold. Werner did not ask Posey to give a
written statement, write him up for anything, or say any-
thing about discharging him.
As summarized supra section II,B,4,a, Posey was
among the employees interviewed on September 10 and
11 by Kowalski, Carter, and Werner. On an undisclosed
date between that interview and September 23, Posey
went to Werner's office and asked for a transfer from the
second (3-11 p.m.) to the third (11 p.m.-7 a.m.) shift in
order to enable Posey to perform his National Guard
duties. Werner said that he would see what he could do
about it. Posey asked whether Werner wanted him to
pay for the box of greasy cloth towels which he had re-
trieved from the dumpster and taken home, and offered
to write him a check. Werner said that this was water
under the bridge, and that Posey should let his con-
science be his guide. Posey said, "fine, then you won't
get any money." Werner did not ask him to give a state-
ment, did not write him up, did not tell him to bring the
towels back, and said nothing about discharging him. He
was transferred to the third shift on September 23.
Posey attended the October 4 union meeting and
signed a card there. Late in the evening of October 5,
while Posey was working with employee Williams (who
had not attended the meeting and had not yet signed a
card), Werner approached Posey; patted him on the
back; and said, "do you really think this will get off the
ground?" Posey did not reply. Werner walked away
chuckling.7' After finishing his shift, which ended in the
morning of October 6, Posey gave out cards in the plant
parking lot to Williams, who signed and returned his
card immediately, and another employee. There is no
evidence that management observed this activity.
Supervisor Morrison testified that on October 6 or 7,
Werner showed him some notes of employee interviews,
said that a few former employees had alleged that Posey
had taken a "product" or "things" from the building, and
said that "from the notes that they had taken, from talk-
ing to him, and et cetera, that he was to be let go."
About 1:30 a.m., on October 7, Supervisor Hougham
told Posey that Supervisor Morrison wanted to see him.
When Posey entered the office, he found Morrison and
Transportation Supervisor Ralph Carroll. Morrison
asked what had been going on in the last couple of
months. Posey described the Spitler incident. Morrison
asked whether Posey had ever stolen anything. Posey
said no. Morrison said he had a written statement from
someone whom he did not identify that on a date Morri-
son did not specify, Posey had stolen some Pittsburgh
Steelers glasses. Posey denied taking anything, and said
that Werner and the police could go to Posey's house
"right now and . . . check it out . . . because I don't
have nothing to hide at all." Morrison rejected this sug-
gestion, and said he had another written statement, from
someone whom he did not identify, that Posey was not
71 This finding is based on Posey's testimony. Williams was called by
the General Counsel as a witness, but was not asked about this conversa-
tion. Werner denied making this statement, and further denied in his testi-
mony that he never talked to Posey on this date. However, Werner ad-
mitted having told a Board investigator that he may have said hello to
Posey that day. Werner's testimony in other respects contains a number
of internal inconsistencies. For this and demeanor reasons, I credit Posey
notwithstanding Williams' failure to corroborate him. See infra at fn. 87.
trustworthy. Posey said, "that is their opinion." Morrison
asked if he had ever seen anyone stealing anything.
Posey said that he was not hired to babysit, but was
hired to load trucks and make sure they were out on
time. Posey said that the only thing he had ever taken
was the greasy cloth towels which he had taken because
he considered them public property. Morrison said that
they were Respondent's property until they left the lot,
but did not ask Posey to return the towels. Morrison said
that Posey had two alternatives, to resign or be fired.
Posey said that Morrison would have to fire Posey be-
cause he was not going to quit. Morrison said that he
was going to fire Posey, who said "that it wouldn't hold
up in court at all," that Posey knew he was "right."
Morrison said nothing about Posey's giving a written
statement, and he did not give one. At Morrison's
instructions, Carroll escorted Posey out of the building.
On October 16, 1980, Warehouse Supervisor Streilein
advised the Virginia Unemployment Compensation Com-
mission that Posey "was implicated in theft of company
property." On October 27, more than 2 weeks after
Posey's discharge, Streilein prepared, and he and Werner
signed, an employee disciplinary report in which "Dis-
honesty" was checked, and containing under "Remarks"
the statement, "Employee was implicated in theft of
company property." That same day, they both signed a
"change of status" form also stating that Posey "was im-
plicated in theft of company property." When testifying
as the General Counsel's first witness, Werner initially
testified to being "sure" that he consulted someone,
probably Kowalski, about Posey's discharge before de-
ciding to discharge him, and that the reasons for Posey's
discharge were "Implication in an act and awareness of a
theft of company property." Then, Werner testified that
Posey was fired "for theft." A little later, Werner testi-
fied that he did not recall consulting anyone about the
decision to discharge Posey, and that Posey's awareness
of theft "contributed to" the overall decision to dis-
charge him. When testifying for Respondent 3 weeks
later, Werner testified that Posey was discharged because
Laymon and employee B had identified him as having
removed Pittsburgh Steelers glasses from Respondent's
inventory. The last day of the hearing, Werner indicated
on cross-examination that Posey was discharged partly
because Klouser told Respondent that he had received
reports from other employees, who were themselves en-
gaged in theft, that Posey was stealing also.
e. Payne
Charles Franklin Payne was hired by Respondent in
February 1979. He was a leadman throughout his em-
ployment. In March 1980, he received an increase from
$6 to $6.48 an hour as part of an annual wage adjustment
for the Manassas facility. In the summer of 1980, then
Warehouse Manager Kimberly repeatedly urged Payne
to accept a supervisory position, telling Payne that he
would be a good man for the job. Payne refused the pro-
motion, telling Werner that Payne did tnot feel that he
could handle the job. Payne never received any writeups
of any kind. Werner and all the supervisors had thanked
Payne for doing a good job. In mid- or late September,
216
THE MARTIN-BROWER COMPANY
Payne approached Werner and asked whether Payne was
going to be the next to be fired. Werner replied, "No
. . . you're honest, you're obviously a good employee
and so [is] Gary Burrell. Y'all done real good work for
me.",
7 2
As previously noted, employee E had alleged during
his September 11 interview that Payne had taken cheese
out in his lunchbox. Payne was not interviewed in Sep-
tember about alleged theft. As previously noted, he was
one of the three employees who on October 2 made ar-
rangements at the Holiday Inn for the October 4 meet-
ing, and were seen and hailed by Supervisor Streilein as
the three left the Holiday Inn that day. Payne thereafter
urged other employees to come to the meeting. He him-
self attended that meeting and signed a card there.
At about II p.m., on October 7, Supervisor Morrison
told Payne that Werner wanted to see him in Werner's
office, and escorted him there. Morrison remained in the
office during the interview. Werner asked what Payne
would do if Werner offered him a supervisor's job.
Payne said that he would probably be "real happy."
Werner asked why Payne had not asked for the job after
Burrell turned it down. Payne replied that because of the
pressure Werner put on, Payne did not think he could
work under Werner as a supervisor.
As previously noted, after obtaining from Payne the
admission during this conversation that he had attended
the October 4 union meeting, Werner evinced the cor-
rect suspicion that Payne had participated in setting up
the meeting. Werner pulled out some white paper with
writing and different color pencil marks through it; said
that each person he was discharging would have a color;
and said that Payne was going to be orange, Heskett was
going to be blue, and employee B was going to be pink.
Without giving dates or naming the accuser, Werner said
that he had proof that someone on the first shift, to
which Payne was assigned, had said that Payne had
taken cheese, eggs, and meat. Payne said no, that he did
not know what Werner was talking about, 7 3 and that
Payne could not have taken these items because he did
not work in the department where they were kept.74
Werner said, "okay, never mind," and asked who was
stealing. Payne said that he did not know. Werner said
that he thought Payne was a liar, and that he would be
given an alternative, "I'm either going to let you volun-
tary resign or I'm going to send you out the door like a
rocket." Payne asked whether, if he resigned, Werner
would give him a good reference. Werner said yes, and
asked him to write out a resignation. Payne said that he
did not know what to say, he could not spell very well,
and his hands were trembling so much that he could not
?2 My findings as to this Payne-Werncr conversation are based on
Payne's testimony. Werner testified that Payne said he was concerned
about whether he was implicated in the theft investigation, and Werner
replied that Payne should not be concerned with the investigation, but
should only be concerned with doing his job. In view of the inconsisten-
cies in Werner's testimony as to a number of material matters (see infra at
fn. 87), and for demeanor reasons, I credit Payne.
?n This finding is based on the testimony of Payne, Morrison, and
Werner on cross-examination. In view of Werner's retraction on cross-
examination, I do not accept his testimony, as an adverse witness for the
General Counsel, that Payne admitted removing company property.
74 In fact, the departments are separated by a wall with several doors
which were frequently unlocked.
write. He asked Werner to write a resignation for him.
Werner thereupon wrote out and dated a statement that
Payne was voluntarily resigning for personal reasons, ef-
fective immediately. At Werner's request, Payne not
only signed his name in cursive writing, but also hand-
printed his name and dated the document. Respondent
frequently does not obtain the written resignations of em-
ployees, even after they have given oral notice of resig-
nation some time before the effective date. 7 5
During the investigation of the case, Werner told the
Board investigator that Payne was a voluntary quit, and
that Respondent would have liked to keep him as he was
the leadman on the first shift and one of the most senior
employees of the warehouse.
5. The allegedly discriminatory discharge of Walton
Kenneth Ray Walton started working for Respondent
on July 9, 1979, at $6.50 an hour. He thereafter received
increases or an increase to $7, and effective March 3,
1980, he received an increase to $7.56, which his person-
nel folder attributes to "Annual Wage Adjustments."
Walton was initially attached to the warehouse depart-
ment. He spent most of his time performing warehouse
maintenance work. However, on an emergency basis he
performed work on the Thermal King refrigeration units
used in Respondent's trailers.78 Walton had a substantial
amount of previous training and experience which quali-
fied him to perform much of the maintenance work on
such units. On various occasions beginning about June
1980, he asked Transportation Supervisor Art Neville for
a transfer to the transportation department, in order to
enable Walton to perform work on the Thermal King
units. When he made these requests, Neville told him
that if he was transferred, he would be needed the hours
the trailers were there. Neville testimonially identified
these hours as the second shift; but see infra.
About late July 1980, Respondent hired Nelson Mi-
chael as a mechanic attached to the warehouse depart-
ment. Management told Walton that he should train Mi-
chael for about 2 weeks and would thereafter be trans-
ferred to the transportation department. This transfer
was decided on by Randall, with Neville's concurrence.
Walton did train Michael for about 2 weeks, at the con-
clusion of which Michael was performing basically the
same work which Walton had performed before Michael
was hired. 7 ? Thereafter, management prepared a change-
of-status form which stated that Walton was transferred
to the transportation department effective August 11,
1980. The maintenance work which that department
wanted consisted of the maintenance of Respondent's
75 My findings as to this interview are based on a composite of Payne's
testimony and credible parts of Morrison's and Werner's testimony. Be-
cause of the conflicts between Morrison's and Werner's testimony, the in-
ternal inconsistencies in Werner's testimony (supra at fn. 73), the evasive-
ness in his testimony (infra sec. II,D,I) regarding what Payne was ac-
cused of taking, and for demeanor reasons, as to this interview I accept
Morrison's and Werner's testimony only to the extent that it is set forth
in the text or corroborated by Payne.
'7 This finding is based on Werner's and Randall's testimony.
7 This finding is based on Walton's testimony. For demeanor reasons,
and in view of the probabilities of the situation, I do not accept Randal's
testimony that between mid-July and early October Walton spent most of
his time training Michael.
217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trailers, including the Thermal King refrigeration units in
the trailers, and also some minor repair work on the trac-
tors which Respondent leases from Ryder Truck Lines.
After August I 11, Walton and Michael, with the ap-
proval of Transportation Manager Randall and Ware-
house Supervisor Streilein, worked together. When
maintenance work on trailers and tractors was needed,
Walton went to do that; when maintenance work in the
warehouse was needed, Michael went to do that. If this
work was slack for either one, he would help out the
other. Also, they would work together on occasional
jobs which called for two men. Michael was capable of
doing some Thermal King work, but Walton was sub-
stantially more skillful in such work. After breaking in
Michael, Walton did about 20 percent of his work in the
transportation department and about 80 percent in the
warehouse.
When originally hired, Walton had been assigned to
work 8 a.m. to 4 p.m., Monday through Friday, but was
subject to emergency callout at any time, day or night.
About the last 2 weeks in July 1980, both Walton and
Michael began to work from 8 a.m. to 4 p.m., Tuesday
through Friday, and from 7 a.m. to 3 p.m. on Saturday.
At all relevant times. Respondent had an agreement
with Ryder Truck Lines, from which Respondent leased
its trucks and which is open around the clock, to per-
form service work, on request, on Respondent's refriger-
ated trailers. Respondent sometimes (probably, usually)
had such work performed by Ryder, sometimes by other
shops, and on an emergency basis by Walton. On some
occasions in July and August 1980, Respondent had to
transfer loads between trailers because Ryder had been
unable, for lack of parts or of knowledge about how
Thermal King units worked, to repair a trailer which
had already been loaded. However, Ryder objected to
Respondent's having an auto mechanic work on a trailer,
on the ground that this might invalidate the manufactur-
ers' warranty on parts purchased and installed by Ryder.
Randall and Werner both testified that they decided
Walton would be capable of performing maintenance
work on the tractors which Respondent rented from
Ryder and on Respondent's refrigerated trailers, and that
having him perform it would be cheaper than having it
performed by Ryder. Randall testified that beginning
about 6 weeks before Respondent moved Walton to the
night shift effective October 14, 1980-that is, beginning
about early September 1980-Randall and Neville dis-
cussed the question of which hours would constitute op-
timum coverage for maintaining the Thermal Kings and
the trailers. Neville testified that before Walton's August
11 transfer into the transportation department, Neville
suggested that if Walton were so transferred, he should
be assigned to the second (3 p.m. to 11 p.m.) shift; but
that in August or September, Neville and Randall never
discussed changing Walton's hours.
On the morning of October 4, Randall told Walton
that Werner wanted 7-day coverage for maintenance at
the warehouse, and suggested that Walton and Michael
work out a schedule between themselves. The two em-
ployees agreed to a schedule under which Walton would
work Tuesday through Saturday and Michael would
work Sunday through Thursday. They reported their
agreed-upon schedule to Randall, who said that this
would be acceptable to Werner.7 When the employees
were told of the 7-day coverage, nothing was said about
working nights. Randall testified that the 7-day coverage
was intended to cover the warehouse, and had nothing
to do with the trailers.
As previously noted, Walton was one of the three em-
ployees who on October 2 arranged for the October 4
union meeting at the Holiday Inn, and were seen and
hailed by Supervisor Streilein when they were leaving
the Holiday Inn after making these arrangements. How-
ever, Walton did not attend the meeting on the morning
of October 4, which was held on a day when he was
regularly scheduled to work. His next scheduled work-
day was Tuesday, October 7. When he came to work
that morning, he heard discussions among other employ-
ees regarding the discharge of some employees who
were involved in the October 4 meeting. Later that
morning, Supervisor Morrison asked Walton what was
going on. Walton said that a lot of people had been fired
for a lot of stupid reasons. Morrison replied, "it has to
stop somewhere, the man cannot keep going like he is
going."
That afternoon, Randall told Walton that Randall
wanted to see him the next morning in Randall's office.
Walton asked why. Randall said that Werner wanted
Walton to work Tuesday through Friday nights and
come in on Saturday during the day. Walton said that he
did not object to working on the night shift, but that
work on this shift would interfere with some classes he
was taking on Tuesdays and Thursdays at the Northern
Virginia Community College, and he thought it was too
late to make a change in his class schedule. Walton said
he would check on whether it was too late to change his
schedule, and would let Randall know on the following
morning. Walton suggested that on the 2 nights when a
night shift conflicted with his classes, he could either
make up his 8 hours by coming to work early or work-
ing late, or take time off without pay during the period
he needed to attend school. Randall said that he would
talk to Werner. Randall testified that he had known
before informing Walton of his schedule change that he
was attending classes at night, but had never warned him
that he ought to take day classes in the fall. Transporta-
tion Supervisor Neville testified that, although he was
unaware that Walton was attending night school in the
summer, Neville knew that Walton had gone to night
school in previous semesters.
Immediately after work that day, October 7, Walton
went to Burrell's house and signed a union card. Later
that evening, Walton consulted the college catalog for
the fall quarter of 1980. The catalog showed that the
courses whose evening sessions he had started to attend
18 My finding that this conversation occurred on October 4 is based on
Walton's testimony. Randall initially testified, as an adverse witness for
the General Counsel, that this conversation occurred in July 1980, and
later testified, as a witness for Respondent, that the employees went on 7-
day coverage the week ending September 2 and the decision to go to
such coverage was made the week before. In view of this inconsistency,
Respondent's failure to bring in records to show the days on which
Walton and Michael worked before October 4. and demeanor reasons, I
accept Walton's October 4 date.
218
THE MARTIN-BROWER COMPANY
on Tuesdays and Thursdays also had day sessions sched-
uled for hours which would not conflict with his new
work schedule. Further, the catalog stated that a student
could withdraw from a course without grade penalty
before November 6. However, the catalog also stated
that October 3 was the last day for "late registration and
add/drop" and for "full tuition refund." Walton had pre-
viously had to fill out an add/drop slip to change from
one session to another session of the same course. He
concluded from the foregoing that because it was after
October 3, he could not change sessions, and could not
withdraw from a course without having to repay to the
Veterans Administration certain benefits which he had
been receiving. 79 He did not talk to anyone at the school
about the matter, and did not try to fill out an add/drop
slip to change sections.
On the following morning, he told Randall that it was
too late to change Walton's school schedule. Walton fur-
ther said that if Respondent would "work with" him to
finish out the current quarter (which he told Randall
would amount to 3 or 4 weeks, but which in fact
amounted to about 9 weeks), he would take day classes
from then on. Randall said he would check into it. 80
Walton asked whether anything had been accomplished
regarding a change in his new work schedule. Randall
said that he had not yet talked to Werner about the
matter, but would "get to him." Walton advised Randall
that, if Walton punched out at 6 p.m. to go to school and
punched in upon his return, the interval would be 4-1/2
to 5 hours including time for dinner. Walton again sug-
gested that he either take the time off without pay, or
put in 8 hours by coming in early or leaving late. Ran-
dall said that he would have to talk to Werner about the
matter, and would do so as soon as he had a chance.
On Friday, October 10, Walton again spoke to Ran-
dall, who said that he had not yet talked to Werner but
would be in on Saturday to talk to Werner and would
give Walton a decision on Saturday. Walton said that he
would check with Randall on Saturday. Walton came to
work on Saturday, but Randall did not. Walton called
Randall's house that afternoon to see if he were coming
in. Mrs. Randall said that he had left and she thought he
should be at work by this time.8' Shortly before quitting
time, Walton told Werner about the conflict between
Walton's school schedule and his new work schedule,
and said that Randall had planned on talking to Werner
but had not yet had a chance to talk to him. Werner said
that it was Randall's decision and that Walton had a
problem.
On Monday, October 13, Walton called Randall at
work. He said that Werner had said that the hours were
set. Walton said, "in other words, [if] I punch out you
are going to fire me." Randall said, "you can consider
that." Walton said that he was not quitting, but did
79 The tuition for the tswo courses being held on Tuesday and Thurs-
day evenings was $57 He was also receiving "three-quarter pay" from
the VA.
80 My findings in these two sentences are based on Walton's testimony.
For demeanor reasons, I do not accept Randall's denial.
81 Randall ordinarily worked on Saturdays, but received his regular
full salary even if he missed a particular Saturday.
intend to attend school, and that he would see Randall
on the following day. 82
On the following day, October 14, before punching in,
Walton talked to Randall, who said that this was not a
laughing matter. Walton agreed. Randall said that an ad-
ministrative decision had been made and there was noth-
ing he could do about it. Walton said that he had made
his decision and was standing by it. Randall said that he
was not satisfied with Walton's work; that "it was his de-
cision"; and that Randall was being paid to do a job, he
had a job to do, and he was going to do it. Walton then
punched in at 3 p.m., the starting hour for his new shift.
At 6 p.m. he punched out (without telling his immediate
supervisor, Neville), got cleaned up, ate supper, and
went to school. He did not return to work that night.
Werner testified that Randall recommended that
Walton be discharged for walking off the job, and that
Werner (although he did not have to approve all dis-
charges) approved Randall's recommendation. Werner
did not testify that Randall gave any other reason for his
alleged recommendation. Randall was not asked about
the matter.
About 2:30 or 2:45 p.m. on October 15, Walton re-
turned to the warehouse and found he did not have a
timecard. He went to see Randall, who said "you made
your decision. I had to make my decision . . . you are
no longer employed, pack up your tools . . . if I vas in
your shoes I would have done the same thing."8 3 Ran-
dall testified that Walton had told him that Walton was
going to punch out early on October 14, and testified to
the belief that Walton punched out early in order to
attend class. At some time during this period, Walton
told Randall that if Walton had to drop classes, he
would have to repay to the VA the benefits he had been
receiving.
Most of the trailer loading is performed during the
second shift, and most of the problems which Respond-
ent was having with Thermal King refrigeration units
were being discovered after the trailers were in the load-
ing process. A significant proportion of the mechanical
problems in the tractors and trailers were being discov-
ered when the drivers inspected their respective vehicles
during the half-hour period immediately before they left
on their runs. About 70 or 80 percent of the trucks leave
between midnight and 4 or 5 a.m.; at least some of the
rest leave about 2 p.m. Randall testified that the mainte-
82 My findings in this paragraph are based on Walton's testimony.
Randall testified that he did not recall Walton's telephoning him that day.
To the extent this may constitute a denial, for demeanor reasons I credit
Walton.
8s My findings as to the Walhon-Randall discussions are based on Wal-
ton's testimony, which is to some extenl corroborated by Michael's credi-
ble testimony that on a date which he could not recall, Randall answered
Walton's request for a shift adjustment to his classes by saying that Ran-
dall would have to discuss it with Werner. For demeanor reasons. I do
not accept Randall's denial that he told Walton that Randall would check
with Werner, or Randall's testimony that he said the decision about Wal-
ton's schedule was up to Randall. or Randall's testimony that he was not
at the facility on October 14. or Randall's denial that he told Walton that
Randall would have done the same thing if he had been in Walton's
shoes. For demeanor reasons, and in view of the probabilities of the situa-
lion, I do not accept Randall's testimony that after failing to find Wal-
ton's timecard in the rack. Walton came into Randall's office and said, "I
guess I've been fired," to which Randall gave no answer.
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nance on the Thermal King units was generally done on
the second and third shifts; and that, during the discus-
sions which preceded Walton's transfer to the transporta-
tion department, Walton was told that he might have to
work the second or third shift to do the maintenance on
the trailers. As previously noted, Respondent insisted on
Respondent's observing a 3 to 11 p.m. schedule (that is,
the regular second-shift hours), and rejected both his
proposal that on Tuesdays and Thursdays he work from
3 to 6 p.m. and 11 p.m. to 4 a.m. (that is, part of the
second shift and part of the third) and his proposal that
on those days he come in early.8 4 Supervisor Neville,
who was Walton's immediate superior but had no au-
thority to change his work hours, testified that he did
not learn about Walton's transfer to the second shift until
about a week before it actually happened, on October 14.
Neville further testified that the increase in business re-
sulting from the M & M strike, which ended on Septem-
ber 20, diminished the time available for servicing the
Thermal King units, thereby caused them to break down
more frequently, and thereby led to a particular need by
Respondent for a mechanic during the strike. Randall
testified that the discontinuance of the extra work be-
cause the strike had ended would not have affected at all
the decision to have a mechanic on the second shift.
Randall and Neville testified that after Walton said
that his new hours conflicted with his schooling, Randall
and Neville did not discuss whether Respondent could
work around Walton's school schedule. Werner testified
that "wherever possible," Respondent tries to arrange
employees' work schedules around their personal needs.
Between August and October 1980, with Warehouse
Manager Streilein's permission, employee Zoretic
punched in and punched out about 7 hours late every
Thursday in order to attend night school. On September
23, 1980, Respondent granted employee Posey's request
for a shift transfer in order to avoid conflicts between his
work schedule and his duties as a member of the Nation-
al Guard. In view of the foregoing, and for demeanor
reasons, I do not believe Randall's testimony that he was
not aware that Respondent had ever tried to work
around hourly employees' personal commitments.
After Walton's separation, Respondent continued to
have its tractors and trailers serviced by Ryder Truck.
Michael continued to work the day shift he had worked
before Walton's separation. Respondent never hired a
mechanic to work on evening shift or to service its trac-
tors and trailers, and made no effort to hire one. Werner
testified, "Based upon the lack of success that we had
with Mr. Walton's inability to perform while he was in
the position, we have gone back to the old method of
doing it."
Walton's personnel file contains a change-of-status
form, signed by Randall with a typewritten date of Octo-
"4 As previously noted, 3 days before Walton was advised of his new
shift, he and Michael had agreed to a schedule under which Michael (but
not Walton) would work on Sundays and Mondays. The record indicates
that Walton's services in connection with the trucks and trailers were
needed on Mondays as much as on Tuesdays and Thursdays, and would
be more useful to Respondent on Sundays (when drivers pick up loads
preparatory to delivery) than on Saturdays (when they do not). Howev-
er, so far as the record shows, neither Respondent nor Walton ever sug-
gested a second change in the days Walton was scheduled to work.
ber 16, which contains as the only specified reason for
his separation, "Insubordination, refused to work as-
signed shift. Walked off the job . . . and failed to return
to work." Also, his file contains an employee disciplinary
report with checks before the entries "Insubordination"
and "Defective and improper work." Under "Remarks"
is the entry, "Refused to work assigned shift. Walked off
job [on October 14] and failed to return. Also failed to
complete job assignment in a reasonable time frame
(equipment trailer)." This document contains Randall's
signature with a typewritten date of October 15, and
Werner's signature dated October 17. Neville testified
that at the time of Walton's discharge, he had completed
his early August assignment to the "equipment trailer"
work, which consisted of reversing the doors of the driv-
ers' lockers. Randall testified that Walton had never
completed this job.8 5 Randall testified that on one occa-
sion, whose date he did not give, he spoke to Walton
about his failure to finish the door job. Neville testified
that he had spoken to Walton about this matter on sever-
al occasions, whose dates he did not give. Walton had
never received any writeups about his work. Neville,
who was Walton's immediate superior from mid-August
1980 until his October 1980 termination, but had limited
opportunity to observe his work, testified that Walton's
work "was good, for the most part. It was kind of slow,
but the quality of the work was good." Randall, who
was Walton's superior and Neville's immediate superior,
testified that Walton was a valuable employee and a very
skillful mechanic and Randall was generally pleased with
his work.
C. The Allegedly Discriminatory Change in the
Requirements Regarding Forms
Respondent's Manassas facility serves only McDon-
ald's restaurants. In the summer of 1979, some members
of management from Respondent's Dallas facilities rec-
ommended that Respondent's Manassas pickers be re-
quired to use a "picker's log," similar to those used in
Respondent's other warehouses which serve McDon-
ald's. This document calls for the picker to insert his
name, the date, the number of his pallet jack, and certain
information regarding the pallet jack (the water level,
the "wheels clear," the brake, the horn, lifting, lowering,
and any defects). In addition, as to the order picked for
each store, the document calls for the picker to enter the
store number, the route and stop, the total cases, the
number of "frozen" cases, the number of "dry" cases, the
"drop stock," the number of pallets, the start time, and
the finish time. Also, the document calls for an explana-
tion for any problems which resulted in "low C.P.H."
(inferentially, cases per hour). 86 The pickers regarded
the use of this form as a nuisance, particularly (because
some had no watches) the requirement for noting the
start time and finish time. By 1980, the use of the "pick-
er's log" forms had been abandoned at the Manassas fa-
es Walton's testimony indicates that he may have been performing this
job just before clocking out on his last day of work, October 14.
as The form was also used by the receivers, who were to enter the
vendor, the total number of cases received, the time the receiver started,
and the time he finished.
220
THE MARTIN-BROWER COMPANY
cility, although some of the forms themselves remained
in the warehouse. Thereafter, and until October 6, the
pickers used a form ("Order Picking, Checking, Loading
Schedule") which merely required each picker to insert
his initials to signify his commitment to picking for par-
ticular stops, and another set of initials to signify that he
had done so.
Werner testified that on October 1, during the center-
managers' Quebec meeting, the "picker's log" form was
referred to during the presentation of another center
manager. Werner further testified that "It was operating
policy to use [that form] in every [McDonald's] distribu-
tion center," and that Respondent's other distribution
centers which exclusively serve McDonald's use that
form at Kowalski's "direction." Werner did not attach a
date to this "direction."
Werner returned from Quebec late Friday evening,
October 3, and the union meeting was held on October
4. On Monday, October 6, the pickers were instructed to
resume using the "picker's log." Employee Zoretic, who
received these instructions and had been hired after the
use of these forms had been abandoned, credibly testified
that using them "would kind of slow you down a bit."
As previously noted, Werner began Heskett's discharge
interview, about 11 p.m. that day, by commenting that
Werner had heard that Heskett had some complaints
about the new picking system. As of the March 1981
hearing, the pickers were still being required to fill in
both the "Order Picking, Checking, Loading Schedule"
and the picker's log. Werner testified that the instruc-
tions to use the log were issued in order to initiate a
level of consistency with all of the McDonald's distribu-
tion centers, and that Respondent wanted the form to be
used in order to get a better handle on the time situation
to complete the assigned work. Respondent's brief points
to employee Zoretic's credible testimony that informal
records kept by some employees before reinstitution of
the "picker's log" enabled the leadmen to assign the
bigger routes to the faster pickers. Werner's just-cited
testimony aside, no member of management testified that
such considerations entered into the decision to reinstate
the "picker's log."
D. Analysis and Conclusions87
1. The alleged discriminatory discharges
About September 29, 1980, Respondent's warehouse-
men began to discuss unionization among themselves;
S7 In making my factual findings, I have frequently rejected Werner's
testimony where contradicted by other witnesses. In connection with
such credibility findings. I note that Werner repeatedly gave self-contra-
dictory testimony as to a number of matters, including matters which he
must have known were highly material to the issues presented By way
of example only, Werner gave self-contradictory testimony as to whether
he knew about union activity before the allegedly discriminatory dis-
charges; whether theft was admitted by alleged discriminatee Payne
during the separation interview where he was given a choice of being
terminated for interview, where he was given a choice of being terilinat-
ed for suspected theft or resigning: whcther employees are automatically
discharged upon receiving a third warning as did alleged discriminatees
Cummin.s and Jolley, the identity of the supervisor toward whom al-
leged discriminatee Zoretic's alleged insubordination allegedly caused his
discharge; and whether employees had legitimate work-related uses for
the towels for whosc alleged misuse alleged discriminatees Lohnlai and
some of this activity was observed by Supervisor Morri-
son. On October 2, when three of Respondent's employ-
ees (Burrell, Payne. and Walton) went to the Holiday
Inn to arrange for an October 4 union meeting, Supervi-
sor Streilein saw them leaving the motel. At the union
meeting on the morning of October 4, a number of Re-
spondent's 36-unit employees signed union cards. Super-
visors Randall and Streilein learned on October 4 and 5,
respectively, that a union meeting had been held at the
Holiday Inn on October 4. and so advised Center Man-
ager Werner on Monday. October 6. At 8 or 9 a.m. on
October 6, Streilein told Burrell that Streilein knew all
about the Holiday Inn meeting and about the cards being
signed. On October 7, Werner told employee Payne that
Werner already knew about "all your meetings." Be-
tween October 6 and 9, Respondent discharged six
(Cummings, Jolley, Burrell, Heskett, Posey, and
Payne) 88 of the employees who had signed union cards
at the October 4 meeting and are named in the com-
plaint; demoted and then discharged a seventh employee,
Lohman, who had also signed a union card at the Octo-
ber 4 meeting; and discharged an eighth employee, Zore-
tic. who had not attended the meeting or signed a card
but, after revealing knowledge of the meeting to Super-
visor Morrison, had answered Morrison's questions about
the union drive by untruthfully disclaiming knowledge of
the meeting's location and what had happened there.
When Burrell commented during his discharge interview
that he was receiving a poor return for being "loyal" to
Respondent, Werner hollered "loyal." threw a dictionary
at Burrell, and told him to look up the word. About Oc-
tober 11, after employee Reid in Werner's presence had
expressed apprehension about keeping his job, Werner
procured from Reid, who had signed a union card on
October 4, the representation that his absence from the
October 4 union meeting was due to a belief that it was
not in his "best interest," and then extolled Reid as an
"outstanding" man and an "angel." About 2 days later,
on October 15, Respondent discharged the remaining
employee (Walton) who had arranged for the October 4
meeting. Ten days later, during an employee meeting
convened by Respondent, Werner said that he wanted to
try to "indoctrinate" the new employees who had been
hired to replace certain other employees. Then, he said
that he wanted to make sure everybody got out to a
good sound start, that certain employees had taken it
upon themselves to attend meetings that were not held
or authorized by him, and that any person taking part in
any such meetings would be dealt with in a similar
manner.
The foregoing sequence of events strongly supports
the General Counsel's contention that the October 6 to
15 discharges attacked in the complaint were motivated
by the dischargees' union activity. This inference is sup-
Ileskett were allegedly discharged See also supra, fns lb. 33, 34, 62, 64,
71, ". .. in the determinatilon of litigated facts. the testimony of one who
has been found unreliable as to one issue may properly be accorded little
weight as to the next" AL.R.B v. Pitrsbhurh Steamship ('ompany, 137
U.S. 656, 659 (1Q49).
s8 Respondent's contention that Paylne was not discharged is rejected
for reasons discussed infra
221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ported by the evidence that the lawful reasons which
Respondent tenders therefor were not the real reasons.
Thus, Respondent contends that Zoretic was dis-
charged on October 6 for insubordination. However,
Zoretic was not so advised when he was discharged or
on the following day, and Respondent did not so advise
the Virginia unemployment compensation authorities on
October 22. Further, although Werner initially testified
to being told that Zoretic was discharged for insubordi-
nation to Hougham, Hougham denied that such insubor-
dination had occurred or that he had so alleged to Mor-
rison. Morrison, in turn, initially testified that Zoretic
had been insubordinate to him when given instructions
by a supervisor other than Morrison, and then was
unable to remember what Zoretic said which was insub-
ordinate, or when he said it, or whether he was insubor-
dinate before the interview to which Morrison called
him with the intention of terminating him. The day after
Zoretic's discharge Werner gave Zoretic as the only
reason for his discharge his having allegedly destroyed
or ruined the pallet jack; but the pallet jack was in fact
operative at all material times, and, prior to the union
meeting, Respondent prepared a disciplinary notice
which merely stated that the next incident of the same
nature as defacing the pallet jack would merely result in
a 3-day suspension.
Further, Cummings' credible testimony shows that the
rack damage in connection with which he was allegedly
discharged had been effected many weeks previously. 89
However, even assuming with Respondent that the
damage to the leg was aggravated on October 6, Re-
spondent has not really explained its action in discharg-
ing Cummings. Cummings told Streilein that Cummings
had not damaged the rack; Respondent admittedly did
not have any evidence otherwise; the writeup of Cum-
mings in connection with his incident was on its face
based on the assertion that he was one of only three em-
ployees who could have damaged the rack; racks do get
bumped from time to time in a day's work; Cummings
had been working for Respondent since the opening of
the facility; in discharging Cummings, Streilein said that
he was just doing what he was told; and he did not ex-
plain why Respondent regarded this particular third
warning (admittedly based merely on the possibility that
Cummings may have accidentally damaged the rack) as
calling for Cummings' discharge rather than the exercise
of management's discretion to withhold such action.
The record also impeaches Respondent's contention
that Jolley received his third writeup (and, because it
was his third, was discharged) on October 8 because he
pushed corrosives across the floor on October 5. Thus,
when Werner saw him pushing corrosives, Werner ini-
tially merely told him never to do this and instructed
him to pick them up, instructions which Jolley respect-
fully obeyed. Jolley credibly testified that nobody men-
tioned the incident to him again until his October 8 dis-
89 I credit Cummings' testimony in this respect in view of Streilein's
testimony that the leg had been in a dented condition since at least April
1980 and his and Werner's failure to explain why (as alleged by Streilein)
it was decided on October 6, 1980, before someone on duty on October 6
allegedly damaged it further and the day before Cummings' discharge. to
have the leg repaired.
charge (see infra at fn. 90). As to management's discus-
sions between this incident and Jolley's discharge 3 days
later, management witnesses were unable to agree among
themselves about whether Streilein investigated the inci-
dent by talking with Jolley; 90 whether Jolley's alleged
pushing of corrosives in Hougham's presence was report-
ed by Hougham to Streilein before or after Jolley's dis-
charge, whether Hougham reported this incident to
Werner before Jolley's discharge; whether Hougham was
consulted about Jolley's discharge; t' and whether Jol-
ley's discipline was decided on by Werner or by Strei-
lein. Moreover, other employees and at least one supervi-
sor had pushed corrosives, on occasion in the presence
of Werner or other members of management, and Jolley
himself had frequently pushed corrosives on earlier occa-
sions, but Jolley's October 8 writeup was the only writ-
ten discipline ever issued to any employee for such con-
duct.
Likewise pretextuous are Respondent's explanations
for discharging mechanic Walton. Respondent relies
mostly on Walton's action, after reporting to work on
the initial date and at the hour called for by his transfer
to the night shift, in punching out to attend his night
classes. However, Walton had previously made a number
of proposals to Respondent for an accommodation, for 2
days a week until the end of the current semester, be-
tween his newly assigned working hours and his class-
room schedule. Although Respondent ordinarily tries to
arrange employees' work schedules around their personal
needs, Werner told Walton the matter was up to Randall
and Randall told Walton that Werner had refused to
change Walton's hours. Although Respondent contends
that it failed to adjust Walton's hours because his Ther-
mal King work was particularly needed during the hours
worked by the shift to which he was transferred, among
the accommodations proposed by Walton were schedules
which for purposes of much of the Thermal King work
were better than his new shift hours. Furthermore, the
sincerity of Respondent's contention that it needed Wal-
ton's Thermal King services 4 nights a week instead of 2,
and immediately rather than at the end of the semester, is
rendered questionable by the fact that after Walton's dis-
charge, Respondent continued its prior practice of
having Thermal King work done by Ryder Truck, and
did not even try to find an employee with Walton's
Thermal King capabilities. Respondent's brief relies on
the testimony of the college registrar that on the date
when Respondent advised Walton of his new shift, he
could have changed to day classes without charge if he
had obtained the signatures of the instructor, the depart-
ment head, and the provost; and points out that Walton
made no effort to obtain such signatures. However, there
1o In view of this conflict, and for demeanor reasons. I accept Jolley's
testimony that the matter was not mentioned to him between October 5
and 8.
91 In view of these conflicts, and for demeanor reasons, I accept Jol-
ley's denial that Hougham spoke to him a few days before his discharge
about pushing corrosives. Rather, I accept Jolley's testimony that before
Werner's October 5 reproof, nobody had ever told him not to push cor-
rosives, and that his only instructions regarding methods of loading cor-
rosives were not to crush them by pinning them between the pallett jack
and something else.
222
THE MARTIN-BROWER COMPANY
is no evidence that Respondent was aware of this possi-
bility when it refused Walton's request regarding his
schedule. Rather, Walton credibly testified that so far as
he knew management made no effort to find out whether
he was correct in saying that it was too late for him to
change his schedule, and the record indicates that Re-
spondent accepted Walton's representations in this re-
spect. Moreover, the record indicates that Respondent
changed Walton's hours for the specific purpose of caus-
ing him to refuse to work those hours because they con-
flicted with his class schedule and thereby to provide a
pretext for discharging him. Respondent's asserted need
for his services on its tractors and trailers had diminished
with the September 20 end of the M & M strike; Re-
spondent changed his days off (to provide 7-day ware-
house coverage, and for reasons unrelated to servicing
tractors and trailers) 3 days before telling him that his
shift was to be changed too; Respondent had good
reason to anticipate that a night-shift schedule would
conflict with Walton's class schedule; his immediate su-
pervisor had only about the same notice of the change
that Walton did; and after Walton's discharge, allegedly
because until the end of the semester he would not work
during part of the regular second end of the semester he
would not work during part of the regular second shift
for 2 days a week, Respondent never even tried to re-
place him, but instead continued to have its tractors and
trailers serviced by Ryder Truck.9 2 Respondent also
relies upon Walton's failure (according to Randall but
not Neville) to complete before his October 15 discharge
his early August assignment of reversing the doors in the
equipment trailer. However, Walton's work performance
was not mentioned to him when he punched out on Oc-
tober 15 or, so far as the record shows, at any time
thereafter; it was not mentioned in his change-of-status
form (although it was mentioned in his employee disci-
plinary report); Neville testified that Walton's work was
of good quality although "kind of slow"; Randall testi-
fied that Walton was a valuable employee; and before his
discharge, he never received any writeups.
Respondent's contention that Lohman was demoted
from his leadman's job because of poor loading for
which Lohman was responsible and because of his failure
to keep the dock clean is undermined by Werner's con-
comitant action in offering Lohman a supervisory job
(which would have excluded him from the bargaining
unit) on another shift; by the conflict in testimony be-
tween Werner and Hougham about who initiated the de-
motion decision; by Werner's failure to tell Lohman, at
the time of the loading incident, that he would be writ-
ten up or that his leadman's job was in jeopardy; by
Werner's rejection, at the time of the incident, of Loh-
man's suggestion that the loading problem be drawn to
92 As to the legality of Walton's discharge, the issue is Respondent's
motives, and not whether Walton was reasonable in concluding that he
could not change his class schedule without financial penalty. In any
event, his conclusion was warranted by the school catalog, and his failure
to press the matter further between the evening of Monday, October 7,
and the afternoon of Tuesday, October 14, when his new shift assignment
became effective, does not indicate less than good faith on his part. The
record fails to show whether he could have obtained the necessary three
signatures if lie had learned about and asked for them. Cf John Dory Boat
Works, Inc.. 229 NLRB 844, 850-851 (1977).
the whole crew's attention; and by Respondent's failure
to warn Lohman about the housekeeping problem or to
mention it in the disciplinary report which sets forth the
demotion. Respondent's contention that Lohman was dis-
charged for taking home cloth towels, which he took
home to launder and thereafter brought back to the
warehouse to again use as sweat towels and handker-
chiefs, is belied by the fact that throughout Lohman's 14-
month tenure with Respondent, during the last 4 months
of which he served as leadman, he had been leaving and
coming back to the plant with a towel tied to his belt,
without any written or even oral reproof from manage-
ment. Indeed, Laymon advised management during the
September 10 interview that Lohman was the only
honest man in the warehouse, and Werner starred
Kowalski's note of that remark. Respondent's contention
that Lohman was discharged for lawful reasons is further
impeached by the conflicts and internal inconsistencies in
the testimony of Respondent's witnesses regarding the
sequence of events surrounding his discharge.
Respondent contends that it discharged Burrell, Posey,
and Heskett in early October because it suspected that
they had been stealing from Respondent. During the
Kowalski-Carter interviews on September 10 and 11,
these three employees and Payne had been accused of
stealing. Moreover, Werner testified that in January 1980
he had announced a policy that removal of company
property was grounds for "immediate" dismissal. How-
ever, Respondent did not even include Burrell or Payne
in these September interviews, concluded Posey's Sep-
tember interview by telling him that he had been doing a
fine job, and concluded Heskett's September interview
by asking for suggestions about how to control theft at
the plant and requesting him to advise Respondent if he
saw anyone taking anything. A few days later, Werner
told Payne that he was not going to be discharged, ". ..
you're honest, you're obviously a good employee and so
[is] Gary Burrell. Y'all done real good work for me."
Also, on September 16, Werner included the names of
these four employees, among others, in a list of employ-
ees to be admitted to Respondent's premises, and named
the employees previously discharged for suspected theft
as among those to be excluded. About the same time,
and notwithstanding employee E's allegations during the
September 10-11 interviews that Burrell had remarked
that stealing on the third shift is particularly easy,
Werner reiterated to Burrell Werner's previous offer to
him of a supervisory job on that shift. Similarly, on Sep-
tember 23, Respondent granted Posey's request for a
transfer from the second to the third shift. Werner con-
ceded that between the September 10-11 interviews and
the October 6-8 separations of these four employees, he
obtained no additional information tending to implicate
them; and during the separation interviews, all these em-
ployees denied taking anything. Indeed, during the first
discharge interview, involving Burrell on October 6,
Werner once again offered Burrell a supervisory job on
the very shift where Burrell had allegedly said stealing
was particularly easy; and did not accuse him of theft
until after Burrell's action (somewhat inconsistent with
Respondent's alleged suspicions) in refusing the job,
223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which would have excluded him from the bargaining
unit.
Respondent contends that Payne voluntarily resigned.
However, the credited evidence shows that he signed a
resignation only after Werner told him that if he did so,
he would receive a good reference, but if he did not, he
would be discharged on the stated ground of suspected
theft. Under these circumstances, I find that he was dis-
charged. Marriott In-Flite Services Inc. a Division of Mar-
riott Corporation, 224 NLRB 128 (1976); RJR Communi-
cations, Inc., 248 NLRB 920, 936-937 (1980); Everspray
Enterprises, Inc., 235 NLRB 120, 123 (1978); Daniel Con-
struction Company, a Division of Daniel International Cor-
poration, 244 NLRB 704, fn. 2 (1979). Respondent's con-
tention that in any event suspected theft would have
been the real reason for his discharge is rejected because
Werner admittedly told the Board investigator of the
October 1980 charge that Respondent would have liked
to keep Payne as he was the leadman on the first shift
and one of the most senior employees of the warehouse;
because during the discharge interview Werner at least
by implication offered Payne a supervisory job, which
would have excluded him from the bargaining unit; be-
cause Werner had told Payne, after the September 10-11
interviews and about 3 weeks before he signed a union
card, that he was an honest and good employee who
would not be fired; because Payne had not been included
in the September interviews; and for the reasons set forth
in connection with Burrell, Posey, and Heskett. I note,
moreover, that Werner initially testified that on Septem-
ber II employee E had identified Payne as having re-
moved "cheese and other produce items" (Kowalski's
and Carter's notes specified cheese only); then testified
that employee E had accused Payne of taking cheese;
then, when asked whether Werner had also accused
Payne of taking produce, replied that cheese was consid-
ered a produce item; then, when asked whether Werner
said produce, testified, "I think I said cheese"; and when
asked whether he said just cheese, or cheese and other
produce, replied, "I may have said cheese and other pro-
duce."
In contending that theft or suspected theft was the real
reason for the terminations of Lohman, Burrell, Posey,
Haskett, and (in a sense) Payne, Respondent contends
(Resp. br., p. 7) that during the September 30-October 3
center managers' meeting, "Management directed
Werner to terminate all people who had been involved
in the theft of Company property and take them off the
rolls as soon as he returned to the distribution center
. . .Werner was instructed to fire anyone who had re-
moved any company property .... Anyone who had
been implicated was to be terminated .... They were!"
As to management conversations at the Quebec meeting,
Respondent produced only Werner's testimony. More-
over, although Respondent's brief accurately summarizes
Werner's testimony for Respondent on cross-examination
at one point, Werner thereafter testified that Kowalski
told him "to proceed on the information that we had, to
bring the people into the office, to discuss with them the
information that was available, to hear what they had to
say then to act"; and previously testified that Siebert and
Kowalski "indicated that with the evidence at hand and
the investigation to that point . . . we should proceed as
soon as I could arrange it to finish the investigation and
separate the implicated employees.""9 : Further, as to
these four employees, Werner's actual conduct is incon-
sistent with the description of his instructions as set forth
in Respondent's brief. Thus, Werner began the termina-
tion interviews of Burrell and Payne, not by accusing
them of theft, but by unsuccessfully offering them super-
visory jobs which would exclude them from the unit. In
addition, although Werner visited the plant on October 4
(the day of the union meeting, and the day after his
return from the Quebec conference) and 5, Heskett was
permitted to work a full shift on October 5 and almost a
full shift on October 6 before being discharged, Payne
was permitted to work a full shift on October 6 and part
of a shift on October 7, Burrell was specifically directed
to finish his October 6 shift before proceeding to the dis-
charge interview, and Lohman was permitted to work
for 11 hours after bringing in the towels for whose re-
moval he was allegedly discharged. Also, Werner's testi-
mony regarding his alleged instructions during the
Quebec meeting raises unanswered questions regarding
management's motives for the discharges at issue here.
Respondent's failure to include these five employees
among those discharged during or a few days after the
September 10-11 theft interviews strongly suggests that
management (including Kowalski) did not believe the ac-
cusations made against all of them but Lohman, did be-
lieve Laymon's statement during the interviews that
Lohman was honest, and did believe the denials of theft
advanced by Posey and Heskett, both of whom were in-
terviewed at that time. In this connection, I note that
these accusations were made by workers who were ad-
mitted thieves and were allegedly (and in some cases ad-
mitted) drugs users and "pushers." Further evidence that
management did not in mid-September believe the theft
allegations against Posey and Heskett is provided by the
failure of management (including Kowalski) to ask em-
ployee Laymon to include in his written statement his
oral allegations that the towels taken by Heskett num-
bered in the "thousands" (a statement uwhose untruth
Laymon testimonially admitted) and that Posey had ob-
tained, or at least asked for, Pittsburgh Steelers glasses,
and perhaps certain kinds of produce. However, Werner
did not give any testimonial explanation for Kowalski's
alleged decision, almost 3 weeks later, that these employ-
ees were (or may have been) guilty and should (or
should perhaps) be discharged. In fact, Werner's testimo-
ny vacillated as to whether he consulted Kowalski
before discharging Posey, and as to whether he was dis-
charged partly for awareness of theft by others (although
it was his report to management which initiated the
series of events leading to Spitler's apprehension).
Finally, Respondent points to the fact that several
other employees who had been accused in August by
Spitler and on September 10-1 of theft but were still on
9g Rather similarly, as a witness for the General Counsel, Werner testi-
fied that management interviewed all employees who had been identified
by other employees as removing company property. and that he tells
"most people that take [company] merchandise" that they will be termi-
nated.
224
THE MARTIN-BROWER COMPANY
the payroll as of October 5 were separated therefrom by
October 8. More specifically, employee B was dis-
charged on suspicion of theft; employee F resigned on
October 7, for reasons not shown by the record, after
being told that Werner would interview him later in the
day; and employee I resigned, according to his testimo-
ny, "so I wouldn't get fired." 9 4 Respondent contends
that after these three terminations and the terminations of
Burrell, Posey, Heskett, and Payne, all those implicated
in August by Spitler or on September 10-11 were termi-
nated. However, as of the March 1981 hearing, employee
D (accused on September 10-11 of stealing a good deal
of merchandise) was still on the payroll. Werner testified
that employee D was on workmen's compensation and
"by law, must be carried on payroll" until he went off
workmen's compensation, at which time, he would be
discharged. There is no evidence whatever as to the date
of Werner's alleged decision to discharge employee D,
and Respondent cites no basis (nor have I been able to
find any) for Werner's assertion that while on workmen's
compensation, employee D could not lawfully be dis-
charged for stealing while an active employee. In any
event, the October 6 discharge of employee B for sus-
pected theft, and the resignations that same day (one of
them to avoid discharge) of two other employees so ac-
cused in August by Spitler or on September 10-11, do
not establish that the discharges during this same period
of others previously accused of theft were so motivated.
In this connection, I note that Werner did not testify that
he intended to discharge employees F and I for suspect-
ed theft; that the record fails to show the content of Re-
spondent's October 6 termination interview with employ-
ee B (for example, unlike the employees named in the
complaint, he may have confessed to theft); and that B,
unlike most of the employees named in the complaint,
had been accused of using "dope."
For the foregoing reasons, I find that Respondent de-
moted employee Lohman. and discharged employees
Lohman, Zoretic, Cummings, Jolley, Burrell, Posey,
Heskett, Payne, and Walton, to discourage union activi-
ty, in violation of Section 8(a)(3) and (1) of the Act. 9s
2. Alleged independent 8(a)(1) violations
I agree with the General Counsel that Respondent vio-
lated Section 8(a)(1) of the Act when on October 25,
after Respondent had discharged a number of employees
for attending the October 4 union meeting, Werner
threatened the current employees with discharge for fur-
ther union activity by stating that he wanted to "indoc-
trinate" former employees' replacements, observing that
certain employees had attended meetings not held or au-
thorized by him, and going on to say that anyone taking
part in such meetings would be dealt with in a similar
'4 Employees F and I signed union cards before October 6, and all
three were named in the first charge filed herein. The charge was dis-
missed as to employees F and 1. Employee B's name was deleted from
the complaint pursuant to the unopposed motion of counsel for the Gen-
eral Counsel. As to employee 1, I need not and do not resolve, as be-
tween him and Werner, the question of whether employee I had refused
to come to the office to discuss his alleged "involvement" in theft.
9s Whether Lohman, Payne, Posey, Burrell, or Heskett engaged in dis-
honest conduct which would disqualify them from affirmative relief is
discussed infra under "The Remedy"
manner. Further, I agree with the General Counsel that
Respondent gave the employees the impression of sur-
veillance, in violation of Section 8(aX1), when on Octo-
ber 6 Supervisor Streilein replied to employee Burrell's
statement that the employees had had a meeting at the
Holiday Inn by telling him that Streilein knew all about
that meeting and about the union cards being signed; and
when on October 7, after extracting from employee
Payne the admission that the employees had had a union
meeting the preceding weekend, Werner said that he al-
ready knew about "all your meetings." 15 East 48th Res-
taurant Inc. d/b/a Sagapo Restaurant and Sagapo Restau-
rant, Inc., 257 NLRB 1212, 1215, fn. 14 (1981). Also, I
find that Respondent violated Section 8(a)(1) during this
same conversation about the union meeting when
Werner went on to solicit grievances from Payne (with
the implication that they would be favorably received)
by asking why Payne had not come to him if Payne
wanted somebody to talk to. N.L.R.B. v. Tom Wood Pon-
tiac, Inc., 447 F.2d 383, 384-385 (7th Cir. 1971); Arrow
.Molded Plastics, Inc., 243 NLRB 1211 (1979), enfd. in rel-
evant part 653 F.2d 280 (6th Cir. 1981); Litton Mellonics
Systems Division, a Division of Litton Systems, Inc., 258
NLRB 623, 636 (1981).
In addition, I find that Respondent engaged in unlaw-
ful interrogation, in violation of Section 8(a)(1), when
during this same conversation Werner asked Payne (who
on the preceding Thursday had been seen by Supervisor
Streilein leaving the Holiday Inn after renting a room for
the union meeting) where he had been the preceding
Thursday; when on October 5 Werner asked employee
Posey, 2 days before discharging him for union activity,
whether he really thought "this" (inferentially, the
Union) would "get off the ground"; and when on Octo-
ber 2 Supervisor Morrison asked Zoretic if he knew
"where the Union was at." In finding the foregoing in-
terrogation to be unlawful, I note Respondent's opposi-
tion to the Union; its October 6 to 15 discharges of nine
employees (including all of those subjected to allegedly
unlawful interrogation) for union activity, including the
activity of seven of them in attending the meeting which
management inquired about; Werner's threat to discharge
new employees who attended union meetings; the ab-
sence of assurances by Werner against reprisal or any
demonstrated legitimate purpose for the questioning,
some of which asked for information which Respondent
already possesses; Payne's and Zoretic's untruthful re-
plies; Posey's failure to reply at all; and Werner's status
as Respondent's top-ranking full-time official at the Ma-
nassas facility.9 s
3. Allegedly discriminatory change in requirements
regarding forms
The December 1980 complaint alleges, inter alia, that
Respondent discriminated against its employees in chang-
ing their working conditions by requiring them to fill out
a new form when they picked orders, all because of their
s6 The G. C. br. (p. 48, fn. 47) attaches to each 8(aX1) paragraph of
the complaint an incident allegedly encompassed thereby. The incidents
so recited do not include Zoretic's October 5 conversation with Morrison
or Reld's conversation with Werner about Oclober I I.
225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activity. This allegation is not discussed in the
General Counsel's brief. So far as I can see, the only evi-
dence supporting this allegation is Werner's taunting ref-
erence thereto at the start of the interview when Heskett
was discharged for union activity, the fact that the em-
ployees had disliked the forms when they had been re-
quired previously, and the fact that the requirement was
reimposed on the Monday following the union meeting
on Saturday, October 4. However, that Monday was also
the Monday following Werner's return from the Quebec
meeting, and I perceive no basis for questioning his testi-
mony that the form was referred to during that meeting.
I accept Werner's testimony that use of that form in
McDonald's distribution centers is Respondent's operat-
ing policy, and that the instructions to use that form
were issued for the purpose of conforming with that
policy and to "get a better handle on the time situation."
CONCI.USIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by threatening employees with discharge for union activ-
ity, giving employees the impression of surveillance over
union activity, soliciting employees to take grievances to
management rather than attempt to obtain redress
through organizing a union, and interrogating employees
regarding union activity.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by demoting and discharging Robert Ivar
Lohman, and by discharging Ernest Richard Zoretic,
Ross Alexander Cummings, Paul Bryant Jolley, Jr., Gary
William Burrell, William Leo Heskett, Philip Isaac
Posey, Charles Franklin Payne, and Kenneth Ray
Walton, in each case to discourage union activity.
5. The foregoing unfair labor practices affect com-
merce within the meaning of the Act.
6. A unit of all warehousemen and forklift operators
employed by Respondent at its Manassas, Virginia, loca-
tion, excluding all office clerical employees, truckdrivers,
receiving clerks, shipping clerks, guards, and supervisors
as defined in the Act, is appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
7. Respondent has not refused to bargain with the
Union, or discriminated with respect to requiring use of
forms, in violation of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. Because Respond-
ent has committed a number of serious violations of the
Act through (inter alia) the top-ranking official at its Ma-
nassas distribution center, including nine discharges for
union activity (eight of them within a 36-employee unit)
and a threat by him (at a management-convened employ-
ee meeting) to take like action against employees who
engage in union activity in the future, I conclude that
unless restrained, Respondent is likely to engage in con-
tinuing and varying unlawful efforts in the future to pre-
vent its employees from engaging in union and protected
concerted activity. Accordingly, Respondent will be re-
quired to refrain from in any other manner infringing on
employees' right to engage in such activity. N.L.R.B. v.
Express Publishing Company, 312 U.S. 426, 437-439
(1941); N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536
(4th Cir. 1941); N.L.R.B. v. Southern Transport, Inc., 343
F.2d 558, 561 (8th Cir. 1965); N.L.R.B. v. East Texas
Pulp & Paper Company, 346 F.2d 686, 689-690 (5th Cir.
1965); Hickmott Foods. Inc., 242 NLRB 1357 (1979).
Respondent contends in its brief that should I find (as
I have) that Jolley was discharged because of his union
activity, a reinstatement/backpay order would nonethe-
less be inappropriate as to him because of his conduct
immediately following his discharge interview. In finding
what Jolley did on that occasion, I rely on his testimony,
which was not contradicted by either Streilein or
Werner, rather than on Streilein's entries in Jolley's per-
sonnel folder. Such credited testimony shows that imme-
diately upon being told of his discharge, Jolley cursed
Werner; and that after leaving Werner's office and reach-
ing the company parking lot, Jolley turned around, reen-
tered the warehouse, ran up the stairs to Werner's office,
tried to turn the knob to the door but found it was
locked, may have banged it once, called that Werner had
better lock the door, and then returned to Mrs. Jolley in
the car. After returning home, Jolley telephoned Werner
and apologized for Jolley's conduct. The credible testi-
mony shows that Jolley was angry because he thought
he had been treated unfairly. Further, I have found that
Respondent had failed to mention to Jolley for 3 days
the October 5 corrosive-pushing incident which Re-
spondent tendered to Jolley as the reason for his October
8 discharge, that this was the only time Jolley had ever
been told not to push corrosives, that to Jolley's knowl-
edge others had done this without reproof, and that the
real reason for his discharge was his union activity.
Moreover, just before being discharged, the 18-year-old
Jolley had learned that the twins whose birth the Jolleys
had anticipated were both dead; he had not been to bed
since at least the 11 p.m. beginning of his shift the previ-
ous day, about 16 hours before his discharge; and at 4
p.m. the previous day he had received a telephoned re-
quest from his supervisor requesting him to perform for
Respondent, after the conclusion of his forthcoming 8-
hour shift, an unpaid errand which required a 100-mile
drive in his own truck and using his own gasoline. Fur-
ther, after performing this errand he had driven his wife
about 30 miles and had waited around while repeated ex-
aminations of his wife were revealing the death of their
babies. I conclude that under all the circumstances, Jol-
ley's postdischarge conduct does not disqualify him from
affirmative relief. See N.L.R.B. v. M & B Headwear Co.,
Inc., 349 F.2d 170, 174 (4th Cir. 1965).
Respondent does not in terms contend that as to the
employees assertedly discharged for dishonesty, what
they in fact did disqualifies them for affirmative relief
should I find (as I have) that the dishonesty claim was a
pretext. The nature of the misconduct attributed to these
226
THE MARTIN-BROWER COMPANY
employees suggests that I should consider that issue, sua
sponte, although Respondent's failure to raise the issue
detracts from the weight to be attached to any miscon-
duct in which they may have been engaged.
1. The only evidence that employee Lohman took any-
thing belonging to Respondent is the undisputed testimo-
ny that he removed about seven cloth towels from a
carton made available to the employees by his immediate
supervisor; thereafter used them solely to wipe his fore-
head and glasses, and blow his nose, on the job; and after
new towels were no longer being made available to em-
ployees, openly took home the already acquired towels
for the sole purpose of laundering them and then openly
took them back. Further, on Respondent's request he re-
turned to Respondent all the towels he could find. I per-
ceive no misconduct whatever by Lohman.
2. The only evidence that employee Payne ever took
anything from Respondent is the accusation by employee
E, discharged for suspected theft and drug use, that
Payne took some cheese out in his lunchbox and (per-
haps) that he took other produce items. I believe that
Payne was truthful in denying Respondent's accusations
of theft.
3. Posey openly removed from the premises some
greasy towels which he found in the dumpster and
which, therefore, he had every reason to infer had been
discarded. Such towels were unsalable; when he told Re-
spondent about the incident he was initially told that he
was doing a fine job; and Respondent never asked him to
return or pay for them. As to this incident, I perceive no
misconduct whatever by Posey. Former employee
Laymon, an admitted thief who when testifying was
aware that whether he was to be prosecuted was as a
practical matter within Respondent's discretion, testified
that Posey removed a 72-glass case of Pittsburgh Steelers
glasses from the "dry" warehouse to the freezer (where
both of them worked) and asked Laymon to take the
case to his own home in order to enable Posey to buy
from Laymon the glasses featuring a particular Steeler,
Terry Bradshaw. Still according to Laymon, he took
home the case of glasses, but Posey never picked up the
allegedly desired glasses. Laymon misdescribed the glass-
es,97 there is no evidence that the two employees were
ever particularly friendly, and Laymon's testimony at
least arguably spread the blame for the admitted contin-
ued presence of the glasses in Laymon's own home. I
credit Posey's testimony that he roots for the Washing-
ton Redskins, which to some extent is corroborated by
the fact that he resides in the Washington metropolitan
area and was not shown to have any Pittsburgh connec-
tions. It is rather unlikely that he participated in a 72-
glass theft in order to be able to buy 18 glasses, which he
never obtained, portraying a Pittsburgh player. As dis-
cussed infra, Laymon's representations to management
regarding the misconduct of other employees were ad-
mittedly exaggerated or inaccurate. I credit Posey's
denial of the glass incident. Management's notes of the
September 10 Laymon interview at least arguably state
that Laymon accused Posey of taking other products.
97 Laymon testified that half of them featured Terry Bradshaw.
Werner credibly testified that this was true as to a fourth of them
Laymon testified that he did not remember whether he
made these accusations, or whether Posey engaged in
such conduct. I conclude that Posey was truthful in
denying Respondent's accusations of theft. In short, the
credible evidence fails to establish any misconduct by
Posey.
4. During the September 10-11 interviews, company
personnel who were themselves admitted thieves accused
Heskerr of having taken a Frisbee, cheese, jelly, and
cookies. There is no direct evidence that Heskett ever
took any of these items. I accept his denials of this hear-
say testimony.
During the September 10 interview, Laymon told
management that Heskett had taken some McDonald's
corporate flags from the warehouse. 9s Laymon testified
for Respondent that about October or November 1979,
Heskett had said he had a large number of flags in his
room (inferentially referring to McDonald flags),
Laymon asked if it was possible for him to get one, and
Heskett replied that all he had to do was walk out with
it. Laymon did not testify that he had seen Heskett
remove flags from the premises. 99 As a witness for the
General Counsel, Werner testified that during Heskett's
September interview, he "possibly" admitted taking
American flags.0o o Later, as a witness for Respondent,
Werner testified without corroboration that Laymon said
he had obtained a McDonald flag from Heskett, and that
Laymon returned the flag by registered mail. During
Heskett's January 1980 unemployment compensation
hearing, Werner testified that "a flag" had been removed
from the premises by Heskett. At the unemployment
compensation hearing, Heskett did not testify about flag
removal. He admittedly possessed a collection of corpo-
rate flags, which he had begun about 1967, and admitted-
ly possessed a McDonald flag, at least at one time. He
testified in February 1981 that it had been some years
since he last requested a flag for his collection, but var-
iously gave dates 1967-68 and 1973. Notwithstanding
this inconsistency in Heskett's testimony, I accept his de-
nials that he removed flags from Respondent's ware-
house. In this connection, I note that the evidence other-
wise is almost entirely hearsay which is not mutually
corroborative and is to some extent mutually inconsist-
ent.
Among the products stored in Respondent's ware-
house are cartons of aluminum foil packets which each
contain a single serving of ketchup. On occasion, some
of the cartons are damaged and the packets fall to the
floor, from which they are swept up and deposited in the
trash. Also, Respondent follows the practice of making
available to the employees in their breakroom ketchup
packets from damaged cartons. Management never spe-
cifically told employees that the condiments thus made
available in the breakroom were not to be removed from
the premises. Heskett credibly testified that during his 19
1Y Kowalski's and Carter's notes state 15. 20,. or 25. Werner testified
that Laymon referred to a 12-flag package
99 Nor did Laymon testify that he himself had ever obtained any flags
However. Kowalski's notes state that Laymon said he had taken a Mc-
Donald flag in August.
100 As previously noted. I do not believe that Heskent made this ad-
mission
227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months of employment with Respondent he removed
from Respondent's premises for his own personal use and
without express permission, either in his lunchbox or in
his pocket, 10 to 15 unopened packets of ketchup which
he had picked up from either the floor or the breakroom.
Laymon testified that on one summertime occasion
whose date he was not asked to give (he and Heskett
worked for Respondent between July 1979 and Septem-
ber 1980), Laymon saw Heskett leaving the premises at
the end of his work shift with seven or eight cloth
towels stuffed into his back pocket; and that those which
were visible to Laymon appeared to be clean. Laymon
testified that he did not know whether Heskett ever
brought the towels back. He and Heskett both testified
that Heskett frequently had towels, which he used as
sweat rags, on his person or in his possession while he
was working in the warehouse. Laymon further testified
that during his September 10 interview with management
about theft, he told Werner that Heskett had taken
"thousands" of cloth towels-a statement which was
untrue by Laymon's own admissions. Heskett credibly
testified that he had taken 20 to 30 towels from the boxes
which were made available to the employees between
late spring 1979 and April 1980. He further credibly tes-
tified that at management's instructions he used these
towels in the warehouse to clean up spills, and that he
used them as sweat rags, would openly take them out of
the warehouse to launder at home, and would openly
bring them back to the warehouse. Still according to his
credible testimony, he took towels from the box in the
presence of then Supervisor Kimberly (who said noth-
ing), was never advised of any restrictions on taking
them home, and used some of them to wash his bath-
rooms. Also, he credibly testified that on two occasions
he removed towels from the "recoup" area to use as
sweat rags, on one of which occasions he took the
towels home and the following week brought them back;
and that on two occasions, he requested and received
towels from the mechanics, which he used as sweat rags
and left on the premises. At the unemployment compen-
sation hearing, he testified that he had returned any
towels which he had taken away.
Heskett testified that, with the permission of manage-
ment, he removed from the premises three empty pickle
containers, two empty boxes, and an empty container of
"all purpose cleaner."101 Further, he testified that from
time to time, management had issued him a clipboard to
use in the course of his work; that he and others had reg-
ularly followed the practice of taking home every day,
and bringing in every morning, the clipboard currently
in use; that he had received about five clipboards but had
been requested to sign a receipt for only one; that he had
never been asked to and never did return any of the clip-
boards issued to him; and that immediately after being
o10 Heskett testified that this container had been damaged and was
leaking, that he and Klouser emptied it into the dumpster, and that
Klouser gave him permission to take the container home. Klouser testi-
fied for Respondent, but was not asked about this matter. Contrary to
Respondent, I do not infer the continued presence of all-purpose cleaner
in the container from Heskett's testimony that he used the container to
wash his dog, which had a bad flea problem. I think it unlikely that Hes-
kett regarded all-purpose restaurant cleaner as fit for washing a dog,
however flea-ridden.
discharged he requested and received permission from
Supervisor Morrison to retrieve Heskett's clipboard and
left the plant with it "under the direction of" Morrison
and Supervisor Hougham.' 0 2 Also, Heskett credibly tes-
tified without contradiction that in the summer of 1979,
he had taken home orange juice with the permission of
then Warehouse Manager Kimberly. Heskett testified
that except for ketchup packets, towels, and the items
described in this paragraph, he never took home any
other items from the warehouse. I credit his testimony in
this respect, and do not accept either Laymon's testimo-
ny that he would always see Heskett with "something"
but could not remember a specific instance, or a some-
what similar report received by management from
Spitler, an admitted drug user and an admitted and con-
victed thief, who did not testify.
Kowalski's notes state that during the September 10-
11 interviews, employee C accused Heskett of having
eaten "a lot of" cookies belonging to Respondent, and,
perhaps, of eating other company products as well. With
exceptions not relevant here, Heskett denied removing
any company property from company premises. This tes-
timony aside, he was not asked about eating company
products. Employee C was admittedly a thief and drug
user. I conclude that the evidence is insufficient to estab-
lish that Heskett in fact engaged in such conduct.
I conclude that the items which Heskett did remove
from the premises were either items which would have
been discarded anyway, items removed with manage-
ment's express or implied consent, or items removed
with what an honest employee could reasonably infer
was management's implied consent. Thus, I find that
Heskett is entitled to affirmative relief.
5. Klouser testified that on more than one occasion in
early 1980, he saw Burrell put "fries," orange juice, and
meat in his freezer suit, which is a very thick and bulky
set of coveralls, and carry such merchandise to his car.
Klouser advised Respondent in September 1980 (al-
though he did not testify) that about March 1980 Burrell
and employee J took a case of "1/4 meat" and Burrell
"got up tight because [J] crossed him and didn't give him
his share." Laymon testified that on an undisclosed
number of occasions in the winter of 1979-80, he saw
Burrell and employee D remove "some boxes" of meat
and take them out the gate; and that when Laymon
asked Burrell on the first such occasion what the meat
was for, Burrell replied that it was for Klouser. Laymon
further testified that on one occasion, whose date he did
not specify, Laymon asked Burrell if he knew what the
McDonald hamburger meat tasted like and whether the
"blue meat" (quarter-pound hamburger patties) or the
"red meat" (smaller patties) tasted better, to which Bur-
rell replied that he had a box of "blue meat" at home
and preferred it because the "red meat" "fried down so
small"; Kowalski's notes attribute to Laymon the state-
ment "Burrell said he took blue meat for self'; but
102 The clipboard in question was the fourth one issued, which Hes-
kett regarded as more convenient for the job than the others. It bore his
name, but this could readily have been removed. Leadman Burrell credi-
bly testified that management never told him to return displaced clip-
boards or to tell his crew to do so.
228
THE MARTIN-BROWER COMPANY
Laymon testified that during the September 10 interview,
he said nothing about these alleged remarks by Burrell,
but merely said that he removed the meat for Klouser.
Further, Laymon testified that on unspecified dates, he
and Burrell had taken boxes of meat or "fries" from the
freezer to Klouser's automobile. Also, Laymon testified
that during the winter of 1979-80, Laymon saw Burrell
remove eggs in his lunchbox on two occasions (testimo-
ny inconsistent with Laymon's September 10 representa-
tions to management, supra, fn. 56, that Burrell had re-
moved dozens of eggs several times),' 0° 3 saw him
remove cheese in his lunchbox on two occasions, and
demonstrated to Klouser how eggs and cheese could be
physically fitted into Burrell's lunchbox. In addition,
Laymon testified that in late July, Burrell said that he
had stopped taking things from the warehouse and ad-
vised Laymon to do the same.
As previously noted, Klouser and Laymon are both
admitted thieves who knew at the time they testified that
Respondent had power to cause their prosecution for
theft. Respondent's conduct at the time they accused
Burrell of theft shows that Respondent did not believe
such allegations, and seized on them only after Burrell
declined to leave the unit to accept a supervisory job.
Laymon admittedly lied when he told management
during the September 10-11 interview that Heskett had
taken thousands of towels; and Kowalski's and Carter's
notes show that Laymon was inaccurate in testimonially
denying that he told management that he and Burrell put
meat and "fries" in a trailer before moving them to
Klouser's car. Burrell credibly testified that about Febru-
ary 1980, Klouser told him and two other employees that
a damaged case of eggs was going to be dumped and
that the employees could take some if they wanted to
and should dump the rest; and that Burrell took about a
dozen of such eggs home. He denied taking any eggs
from Respondent's premises on any other occasion,
denied ever taking any meat product, cheese, or other
food product from Respondent's premises, and denied
the remarks attributed to him by Klouser about J and by
Laymon about the comparison of "blue meat" and "red
meat" and about removing things from the warehouse.
Except as to the egg incident as testified to by Burrell
and the "fries" incident discussed in the next paragraph,
for demeanor reasons I credit Burrell's denials of the tes-
timony of Klouser and Laymon summarized in the pre-
ceding paragraph. Further, I credit Burrell's testimony
that he never had a lunchbox. As to the egg incident, I
perceive no even arguably disqualifying misconduct by
Burrell.
Burrell credibly testified that on at least two occasions
in about May 1980, at the direction of Supervisor
Klouser (Burrell's and Laymon's immediate superior),
these two employees, the only ones in the section on that
shift, removed a damaged case of "fries" and put it in
Klouser's car. The employees openly carried the cases
out the front door, without concealing them in any
los Laymon testified that Burrell's lunchbox was of the usual black
type whose lid is curved to accommodate a thermos bottle.
manner,' 0 4 but the employees were then working on the
night shift, and the parking lot was not well lighted. If
not then removed from the warehouse, these "fries"
would eventually have been either "recouped" or sold to
a restaurant at a discount. I conclude that this conduct
does not disqualify Burrell from reinstatement. Shell Oil
Company (Successor to Shell Oil Company, Incorporated),
95 NLRB 102 (1951), enfd. in relevant part 196 F.2d 637
(5th Cir. 1952). In this connection, I note that Klouser
was Burrell's (and Laymon's) immediate superior, that
Klouser was not a personal friend of Burrell's (or, so far
as the record shows, Laymon's), that both Burrell and
Laymon had been hired in 1979, and (according to
Klouser's uncontradicted and credible testimony) before
Werner became center manager in January 1980, man-
agement personnel were allowed to have company prod-
uct for personal use. Further, once it has been found that
union activity was the real reason for an employee's dis-
charge, the policy considerations pointing to requiring
his reinstatement with backpay are very strong indeed.
. . .[A]nti-union discrimination exercises a coercive
effect not only upon the immediate victim, but upon
all present or future employees of the particular em-
ployer; it impresses upon them the danger of their
welfare and security associated with membership in
or activity on behalf of a labor organization. Ac-
cordingly, the purpose of the order to offer rein-
statement is not only to restore the victim of dis-
crimination to the position from which he was un-
lawfully excluded, but also, and more significantly,
to dissipate the deeply coercive effects upon other
employees who may desire self-organization, but
have been discouraged therefrom by the threat to
them implicit in the discrimination. This essential re-
assurance can be afforded-freedom can be reestab-
lished-only by a demonstration that the Act car-
ries sufficient force to restore to work anyone who
has been penalized for exercising rights which the
Act guarantees and protects. .... [Ford Motor Com-
pany, 31 NLRB 994, 1099-1100 (1941).]
Such considerations particularly militate against denying
a reinstatement/backpay remedy to the unlawfully dis-
charged employee for the very reasons which the em-
ployer falsely advanced for the discharge; the effect of
such a denial on employees unaccustomed to such nice
distinctions would likely be the same as dismissing the
complaint as to his unlawful discharge.
Accordingly, Respondent will be required to offer all
nine of the discriminatorily discharged employees imme-
diate reinstatement to the jobs of which they were un-
lawfully deprived, or, if such jobs no longer exist, sub-
stantially equivalent jobs, without prejudice to their se-
niority or other rights and privileges previously enjoyed.
In addition, Respondent will be required to make all nine
employees whole for any loss of pay they may have suf-
fered by reason of the discrimination against them, less
'°' Kiouser testified that the employees wrapped these boxes in a
freezer suit when carrying them out. For demeanor rensons, I accept
lurrell's testimony that he took home a freezer suit to wash it. a permis-
sible purpose
229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
net interim earnings, to be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as called for in Florida Steel Corpo-
ration, 231 NLRB 651 (1977).1 ° 5 Also, Respondent will
be required to remove from the personnel folders of the
discriminatees, and give to them, the documents which
Respondent prepared to justify or memorialize the pre-
texts on which it relied to defend such discrimination.' °6
Further, I agree with the General Counsel that a bar-
gaining order should issue here. As previously found, by
October 6, 22 of Respondent's 36 unit employees had
signed operative union cards. Also, as previously found,
on October 6 Respondent began to engage in unfair
labor practices which, at the very least, had "the tend-
ency to undermine majority strength and impede the
election process" (N.L.R.B. v. Gissel Packing Co., 395
U.S. 575, 614 (1969)). A bargaining demand is not a pre-
condition to a bargaining order as a remedy for such
unfair labor practices. Beasley Energy, d/b/a Peaker Run
Coal Company, Ohio Division, 228 NLRB 93 (1977).
Whether such unfair labor practices call for a "second-
category" bargaining order turns on whether "the possi-
bility of erasing the effects of past practices and of ensur-
ing a fair election . .. by the use of traditional remedies,
though present, is slight and . . . employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order." Gissel, supra,
395 U.S. at 614-615; Multi-Medical Convalescent and
Nursing Center of Towson v. N.L.R.B., 550 F.2d 974, 976
(4th Cir. 1977), cert. denied 434 U.S. 835 (1977);
N.L.R.B. v. Jerome T7 Kane d/b/a Kane Bag Supply Co.,
435 F.2d 1203, 1206-1207 (4th Cir. 1970). Among the
factors material in making such an assessment are the ex-
tensiveness of the employer's unfair labor practices in
terms of their past effect and residual impact on election
conditions, and the likelihood of their recurrence in the
future. Gissel, supra, 395 U.S. at 612, 614.
In the instant case, Respondent's unfair labor practices
did not merely tend to, but did in fact, undermine the
Union's majority status. With Lohman's October 9 dis-
charge, almost a third of the card-signers had been un-
lawfully discharged, and the Union's October 6 status of
22 card-signers in a unit of 36 had been changed to 10
card-signers among 22 actively employed unit employ-
ees. 07 Moreover, the Board stated:
The discharge of employees because of union activi-
ty is one of the most flagrant means by which an
to' See, generally, Isis Plumbing & Hleating Co., 138 NLRB 716 (1962).
i08 The complaint does not allege any unlawful conduct directed
against employees Shutlock and Huffer, who received written warnings
with respect to the same alleged October 6 rack-damaging incident on
which Cummings' third warning and his discharge were allegedly based.
Accordingly. I doubt my authority to require removal of such warnings
from the files of Shutlock and Huffer. However, in view of my findings
that the damage to the rack did not occur on October 6, their warnings,
too, should in fairness be excised. Compare N.L.R.B. v. Ambrose Distrib-
uring Co., 358 F.2d 319, 321 (9th Cir. 1966), cert. denied 385 U.S 838
(1966).
o10 However, between October 6 and 9, Respondent terminated or re-
ceived resignations from seven unit employees, including five card-sign-
ers, who are not named in the complaint. If these seven terminations had
not occurred, the discharges would have resulted in 15 card-signers in a
unit of 29.
employer can hope to dissuade employees from se-
lecting a bargaining representative because no event
can have more crippling consequences to the exer-
cise of Section 7 rights than the loss of work. [Mid-
East Consolidation Warehouse. A Division of Ethan
Allen, Inc., 247 NLRB 552, 560 (1980); see also
United Dairy Farmers Cooperative Association, 257
NLRB 772 (1981); Atlanta Blue Print & Graphics
Co., 244 NLRB 634, 638 (1979); Entwistle, supra,
120 F,2d at 536 (4th Cir. 1941).]
Several of the discharges effected here constituted a par-
ticularly persuasive way of discouraging the remaining
employees from engaging in union activity, because the
pretext selected by Respondent-namely, false charges of
dishonesty-might well prejudice a victim's entire
career. Further, Respondent discriminatorily discharged
not only seven card-signers in the appropriate unit, but
also a non-unit card-signer (Walton) who had participat-
ed in arranging for the October 4 union meeting and a
ninth employee (Zoretic) who had not yet signed a card
but had revealed awareness of the meeting while un-
truthfully disclaiming to management any knowledge
about it. Thereafter, Respondent brought home to the
discriminatees' replacements the message conveyed by
their predecessors' unlawful discharge, by telling the re-
placements that a like fate awaited them if they too en-
gaged in union activity. In addition, Respondent made
clear to the employees (by coercive interrogation and by
giving them the impression of surveillance) that Re-
spondent intended to find out the identity of union ad-
herents (knowledge most useful for discrimination), and
indicated to one of the unlawfully discharged employees
that Respondent would sympathetically consider griev-
ances which employees brought to it rather than at-
tempting to remedy through union organization.
I conclude that a cease-and-desist, reinstatement-back-
pay, and notice-posting order would be insufficient to
permit a fair election within a reasonable time. In the
first place, Respondent's unlawful discharge of a third of
the card-signers (and more than a fifth of the bargaining
unit), and its threat of like action with respect to the re-
placements, lead me to conclude that the damage to the
employees' ability to exercise a free choice has already
been done, even assuming that Respondent does not
resume its unfair labor practices. Voluntary actions speak
louder than words uttered under compulsion. I think it
unlikely that the coercive impact of these unfair labor
practices would be dissipated by a Board-composed
notice posted under Board (and perhaps judicial) com-
pulsion, or even by the return of the discriminatees
should they choose to accept Board (and perhaps judici-
ally) compelled reinstatement offers. In the second place,
I am doubtful whether such an order would deter Re-
spondent from continuing its unfair labor practices. The
threat and most of the unlawful discharge decisions pro-
ceeded directly from Respondent's highest-ranking offi-
cial at the Manassas warehouse, who at the time of the
hearing still occupied that position; and his threat of dis-
charge to replacements was made several days after Re-
spondent received the initial charge herein, which com-
plained of (inter alia) all the unlawful discharges except
230
THE MARTIN-BROWER COMPANY
Walton's. Respondent's only conduct even arguably
seeking to neutralize its unlawful conduct is its statement
that it intends to offer Zoretic reinstatement with back-
pay on the ground that he was discharged in conse-
quence of a mistake. In view of the foregoing, I find that
Respondent's unfair labor practices call for a bargaining
order. Multi-Medical Convalescent and Nursing Center of
Towson, supra, 550 F.2d 974 (4th Cir. 1977), cert. denied
434 U.S. 835; Maidsville Coal Co., 257 NLRB 1106
(1981); Freehold 4MC-Jeep Corporation, 230 NLRB 903
(1977); S. L. Industries, Inc. and Extruded Products.
Corp., 252 NLRB 1058 (1980); Florsheim Shoe Store Co.,
227 NLRB 1153, 1163 (1977), enfd. in relevant part 565
F.2d 1240 (2d Cir. 1977).'°1
Respondent contends that a bargaining order is inap-
propriate here because of turnover within the unit. As of
October 6, 1980, there were 36 employees in the appro-
priate unit, of whom 23 signed union cards between Oc-
tober 4 and 10. As of March 17, 1981, the time of the
hearing, there were 32 undischarged employees whose
jobs were in the unit description, of whom 16 (including
9 card-signers) had also been on the October 6, 1980,
payroll. Plainly, Respondent is in no position to rely on
the presence of 8 of the 16 new hires, since such new
hires constituted replacements for 8 discriminatorily dis-
charged card-signers. Independent Sprinkler & Fire Pro-
tection Co., 220 NLRB 941, 960 (1975), enfd. 95 LRRM
2064 (5th Cir. 1977). In short, the 32 employees in the
March 1981 unit included 24 of the October 6, 1980, em-
ployees, 17 card-signers, and 8 employees who had been
discharged for union activity. Such circumstances fail to
support any contention that the existing employee com-
plement has not been exposed to any unfair labor prac-
tices and would be deprived for the effective period of a
bargaining order of any voice in determining whether or
not to be represented by a union. 109
In any event, Board precedent calls for me to give
little or no weight to such evidence of turnover. See,
e.g., Tartan Marine Company, 247 NLRB 646, 648, fn. 8
(1980), enfd. as modified 644 F.2d 882 (4th Cir. 1981).
To the extent that Board and court of appeals ap-
proaches may be irreconcilable, I am expected to follow
the Board's views. Ford Motor Co. (Chicago Stamping
Plant) v. N.L.R.B., 571 F.2d 993, 996-997 (7th Cir.
1978), affd. 439 U.S. 891 (1979). Taking the turnover
factor into account gives:
. . . an added inducement to the employer to in-
dulge in unfair labor practices in order to defeat the
union in an election. He will have as an ally, in ad-
dition to the attrition of union support inevitably
springing from delay in accomplishing results, the
o08 If the distinction were material here, I would find this to be a
"first-category" case for the issuance of a bargaining order under Gissel.
Cf. United Dairy Farmers Cooperatiw Association, 242 NLRB 1026 (1979),
enfd. in part and remanded in part 633 F.2d 1054 (3th Cir. 1980), decision
on remand, 257 NLRB 772 (1981).
109 Cf. Chromoalloy Mining and Minerals Alaska Division, Chrrmalloy.
American Corporation v. N.L.R.B., 620 F.2d 1120, 1131-33 (5th Cir.
1980). It seems likely that replacements for the eight discriminatees con-
stituted most or all of the employees who were hired after October 6 and
attended the October 25 meeting where Werner threatened to discharge
replacements who engaged in union activity.
fact that turnover itself will help him, so that the
longer he can hold out the better his chances of vic-
tory will be.
N.L.R.B. v. L. B. Foster Company, 418 F.2d 1, 5 (9th Cir.
1969), cert. denied 397 U.S. 990 (1970); see also Franks
Bros. Co. v. N.L.R.B., 321 U.S. 702, 703-705 (1944). To
be sure, employees (here, less than a third of the unit)
who were hired after the Union obtained its majority
will be compelled by a bargaining order to accept repre-
sentation by a union which they could have had no
voice in selecting or rejecting. l °t However, as the Su-
preme Court noted in Gissel, supra, 395 U.S. at 613:
There is, after all, nothing permanent in a bargain-
ing order, and if, after the effects of the employer's
acts have worn off, the employees clearly desire to
disavow the union, they can do so by filing a repre-
sentation petition. For, as we pointed out long ago,
in finding that a bargaining order involved no "in-
justice to employees who may wish to substitute for
the particular union some other . . . arrangement,"
a bargaining relationship "once rightfully estab-
lished must be permitted to exist and function for a
reasonable period in which it can be given a fair
chance to succeed," after which the "Board may
. . . upon a proper showing, take steps in recogni-
tion of changed situations which might make appro-
priate changed bargaining relationships. [Franks
Bros., supra, at 705-706.]
For the foregoing reasons, a bargaining order will be
issued here. Because the Union had achieved majority
status on October 6, 1980, and Respondent's unfair labor
practices began on that date, Respondent will be ordered
to bargain as of that date. Peaker Run, supra, 228 NLRB
93.
In addition, Respondent will be required to post ap-
propriate notices.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 11'
The Respondent, The Martin-Brower Company, Ma-
nassas, Virginia, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
"IO Of course, the same is true of employees hired after the unlawful
execution of a recognition agreement or collective-bargaining agreement,
the execution of a settlement agreement which includes an undertaking to
withdraw recognition or to bargain, or the eligibility date of a Board-rep-
resentation election. While the policy considerations underlying these
classes of cases are not necessarily present here, such cases do show that
Gissel-type bargaining orders do not present the only situations where
employees are bound by representation decisions made before they were
hired
IIl In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
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.
231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Threatening employees with discharge for union
activity, giving employees the impression of surveillance
over union activity, soliciting employees to take griev-
ances to management rather than attempt to obtain re-
dress through organizing a union, and interrogating em-
ployees regarding union activity in a manner constituting
interference, restraint, or coercion.
(b) Discharging, demoting, or otherwise discriminating
against any employee with regard to his hire or tenure of
employment or any term or condition of employment, to
discourage membership in Warehouse Employees, Local
Union No. 730 of Washington, D.C. a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Robert Ivar Lohman, Ross Alexander Cum-
mings, Paul Bryant Jolley, Jr., Gary William Burrell,
William Leo Heskett, Philip Isaac Posey, Charles Frank-
lin Payne, Kenneth Ray Walton, and (if Respondent has
not already done so) Ernest Richard Zoretic reinstate-
ment to the jobs of which they were unlawfully de-
prived, or, if such jobs no longer exist, substantially
equivalent jobs, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of pay they may have suffered
by reason of the discrimination against them, in the
manner set forth in that part of this Decision entitled
"The Remedy."
(b) Remove the following documents from the files of
the following employees, and deliver such documents to
such employees:
(1) As to Lohman, the change-of-status form bearing
the effective date of October 9, 1980; the employee disci-
plinary report dated October 9, 1980; and the employee
disciplinary report dated October 7, 1980.
(2) As to Jolley, the change-of-status form (with at-
tachments) with an effective date of October 7, 1980; the
"contact memorandum" dated October 7, 1980; and the
"employee disciplinary report" dated October 7, 1980.
(3) As to Cummings, the employee disciplinary report
and the change-of-status form, both dated October 7,
1980.
(4) As to Heskett, the change-of-status form dated Oc-
tober 6, 1980, and the employee disciplinary report dated
October 27, 1980.
(5) As to Walton, the change-of-status form and em-
ployee disciplinary report, both dated October 15, 1980.
(6) As to Burrell, the change-of-status form dated Oc-
tober 6, 1980, and the employee disciplinary report dated
October 27, 1980.
(7) As to Posey, the employee disciplinary report
dated October 27, 1980, and the change-of-status form
dated October 8, 1980.
(8) As to Zoretic, the employee disciplinary report
dated October 6, 1980.
(c) Preserve and, upon request, make available to the
Board, for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary or
useful for analyzing the amount of backpay due under
the terms of this Order.
(d) Upon request, recognize and bargain with the
Union as the exclusive representative of the employees in
the following appropriate unit, and embody in a signed
agreement any agreement reached:
All warehousemen and forklift operators employed
by Respondent at its Manassas, Virginia, location,
excluding all office clerical employees, truckdrivers,
receiving clerks, shipping clerks, guards, and super-
visors as defined in the Act.
(e) Post at its Manassas, Virginia, facility copies of the
attached notice marked "Appendix."' l 2 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent, shall
be posted by it 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 said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from date of this Order, what steps
Respondent had taken to comply herewith.
IT IS FURTHER RECOMMENDED that paragraph 9 of the
complaint in Cases 5-CA-12736 and 5-CA-12737, and
paragraph 6 of the complaint in Case 5-CA-12694, are
hereby dismissed.
I'' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
232