Meco Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1991

304 N.L.R.B. 331 (N.L.R.B. 1991)

331
304 NLRB No. 50
MECO CORP.
1 Certain names are spelled more than one way in the record. The spellings
throughout are believed to be correct.
2 The name of the Charging Party appears as amended at trial.
3 Also included in the complaint was an allegation the Company unlawfully
caused, and intended to cause, its employee Ella Jennings to terminate her em-
ployment with the Company. At trial, I approved a non-Board settlement
agreement arrived at between counsel for the General Counsel, the Company,
and Jennings. I granted counsel for the General Counsel’s unopposed motion
to amend out all references to Jennings in the complaint.
4 The Company employs approximately 785 employees.
5 The slogan on the T-shirt said ‘‘America Works Best When We Say Union
OCAW Yes.’’
Meco Corporation and Oil, Chemical and Atomic
Workers International Union, AFL–CIO. Case
10–CA–25057
August 26, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 15, 1991, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Meco Corporation,
Greeneville, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
J. Howard Trimble, Esq., for the General Counsel.
Andrew T. Sanders Jr. and Sarah E. Groseclose, Esqs. (Wil-
liams, Mullen, Christian & Dobbins), of Richmond, Vir-
ginia, for the Respondent.
John Williams, International Representative, of Johnson City,
Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This case
presents the question whether Meco Corporation (Company)
discharged its employees Sharon Huff (Huff) and Jeannie
Jones (Jones)1 because of their activities on behalf of the Oil,
Chemical and Atomic Workers International Union, AFL–
CIO (Union)2 or because they violated a published company
rule prohibiting the use of ‘‘abusive language’’ toward ‘‘any
supervisor or . . . employee.’’ Although I conclude Huff and
Jones engaged in a heated exchange involving language that
might well fit within the prohibition referred to above, I also
conclude the Company seized upon the incident to discharge
these two employees because of their union activities. I have,
accordingly, ordered the Company to reinstate Huff and
Jones to their former jobs and make them whole for any
losses they may have suffered as a result of the unlawful ac-
tions taken against them.
I heard this case in Greeneville, Tennessee, on April 4,
1991. Prior to the trial, the Regional Director for Region 10
of the National Labor Relations Board (Board) issued a com-
plaint and notice of hearing (complaint) based on a charge
filed by the Union on November 26, 1990, alleging viola-
tions of Section 8(a)(3) and (1) of the Act.3
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs.
Based on the entire record, on briefs filed by the parties,
and on my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material to this case, the Company has been
a duly organized corporation with an office and place of
business located at Greeneville, Tennessee, where it is en-
gaged in the manufacture of grills and lawn furniture. During
the year preceding issuance of the complaint, a representative
period, the Company in the course and conduct of its busi-
ness operations sold and shipped from its Greeneville, Ten-
nessee facility finished products valued in excess of $50,000
directly to customers located outside the State of Tennessee.
The complaint alleges, the parties admit, and I find the Com-
pany is, and at all times material has been, an employer en-
gaged in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the parties admit, the evidence es-
tablishes, and I find the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has engaged in three organizing campaigns at
the Company during 1987 to 1990. The most recent cam-
paign resulted in a Board-conducted election on March 22,
1990. The Union lost the election by approximately 220
votes4 and the Board certified the results thereof.
B. Huff’s and Jones’ Union Activities
It is undisputed that Huff, a 10-year employee most re-
cently employed in the upholstery department, and Jones, a
11-year employee most recently employed as an inspector,
were supporters of the Union. Huff served on the Union’s or-
ganizing committee during the most recent campaign and in
that capacity solicited employees at work, during lunchtimes
to sign authorization cards for the Union. Huff attended
union meetings and wore prounion buttons and a prounion T-
shirt5 at work the entire week before the March 22, 1990
Board-conducted election. Huff testified without contradic-
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Edds was Huff’s supervisor in October 1989. However, at the time of her
discharge, she was supervised by James Ellenburg (Ellenburg).
7 Huff testified employee Hughes was ‘‘against the Union.’’
8 Employee Bailey, called as a witness by the Company, corroborated Jones’
testimony as outlined above.
9 Even if I concluded the Carter conversation took place earlier than 1990,
I would reach the same overall conclusions I have arrived at herein.
10 Bailey worked the first shift and gave her parking space to Jones each
day inasmuch as Jones worked the second shift. It appears the two of them
left the plant daily to accomplish that task. On the day in question, they went
through Huff’s department.
11 Bailey testified Huff said ‘‘Judy, you’re the next one on Jeannie’s
[Jones’] list to stab in the back.’’
12 Huff testified she and Bailey had talked prior to this incident. She said
Bailey ‘‘was going back there and she was telling Jeannie [Jones] . . . tales
on me to get Jeannie [Jones] mad at me.’’ Huff further testified: ‘‘This girl
went back on that line and told Jeannie [Jones] that I was going to call her
husband and tell her husband that she was running a man in the plant, which
was a lie.’’
13 Supervisor Barnes denied making any such comment.
14 Jones testified she understood Huff had been calling her husband at home
a matter which Jones found ‘‘somewhat’’ unusual but asserted it was not the
source of her dispute with Huff on the day in question.
tion that Supervisor Jim Edds (Edds)6 and employee Phyllis
Hughes came to her work station on October 9, 1989, and
as the two approached her work area, Supervisor Edds told
employee Hughes7 he did not like the union buttons Huff
was wearing at the time and stated the Company ‘‘was going
to get rid of everybody there that was associated with the
Union, working for the Union.’’ Huff testified that when she
asked Edds what he had said to Hughes, he repeated the
same comments to her. According to Huff, Edds said the
Union had attempted to organize the Company two or three
times and the ‘‘Company wasn’t going to tolerate it anymore
and they was going to find every reason in the world to get
rid of the people that was working for the Union.’’
Jones testified she had been involved in all three union
campaigns at the Company. She said she signed a card au-
thorizing the Union to represent her and attended union
meetings. She solicited fellow employees to sign union cards
and handbilled for the Union at the entrance to the plant dur-
ing the Union’s 1990 organizing campaign. She testified su-
pervisors she knew observed her handbilling activities. Jones
wore prounion buttons at work and wore a prounion T-shirt
to work on March 22, 1990, the day the Board conducted the
representation election. Jones testified without contradiction
that while she and employee Judy Bailey (Bailey) were on
break at the plant, they were approached by Supervisor Bill
Carter. She testified ‘‘[h]e said that he heard that the Union
was starting back up again.’’ Jones testified ‘‘we told him
that we . . . had not heard that and didn’t know anything
about it.’’ Jones stated Supervisor Carter replied, ‘‘well, I
know that you have heard something about it’’ but then
dropped the matter and walked away.8 Jones testified this
conversation took place in October but did not specifically
state whether it occurred in 1989 or 1990. Other record evi-
dence tends to indicate it was in 1990. For example, at the
time counsel for the General Counsel asked Jones when the
conversation took place, she responded October and he stated
‘‘of 1990’’ and she did not respond to correct that suggested
date if it was incorrect. Jones testified Carter was not her su-
pervisor at the time of the conversation but rather that
Ellenburg was. Ellenburg was Jones’ supervisor in 1990.
When employee Bailey was asked about Carter’s comments,
she was not certain of the month but indicated the conversa-
tion took place ‘‘last year’’ which would have been 1990. In
light of all the above, I conclude the conversation took place
in 1990.9
C. Huff’s and Jones’ ‘‘cuss fight’’
It is undisputed that Huff and Jones engaged in a heated
exchange on November 2, 1990. There are, as set forth
below, conflicts regarding what words were actually ex-
changed between them. Huff and Jones had been friends for
an extended period prior to the November incident and both
testified they had cleared the air and were still friends. On
the day in question, Jones and employee Bailey walked
through Huff’s assigned department.10 Huff, a first-shift em-
ployee, was working at the time. Jones as a second-shift em-
ployee had not commenced her workday. Huff testified Jones
and Bailey usually spoke to her on those occasions when
they proceeded through the department where she worked
but had not been doing so for a while. Huff testified she told
Bailey, as she and Jones walked through the door, ‘‘Judy, I
guess you’re going to be next on the list.’’11 Huff stated
Jones ‘‘turned around and told me to go to hell.’’ Huff re-
sponded ‘‘And I told her to go to hell, back.’’ Huff testified
that as Jones approached the door to the department, she said
something else which she (Huff) was unable to hear. Huff
said she took a few steps away from her machine in the di-
rection of Jones and Jones told her not to be calling her
(Jones’) husband at home and telling him what she (Jones)
was doing at the plant. Huff told Jones she had no lies to
tell, that if any lies were being told, they (Jones and Bailey)
were telling them.12 Huff testified her supervisor, Barnes,
came up and said to her ‘‘Sharon, one of these days Jeannie
[Jones] is going to whup your ass.’’13 Huff testified that
when Jones later passed back through the area she told Jones
she was going to go to hell for lying.
Jones testified she and employee Bailey worked different
shifts and exchanged parking places daily. Jones stated Bai-
ley told her Huff had said some things about her (Jones) on
November 2. Jones testified Bailey asked to walk with her
through Huff’s department because Huff was going to say
something about their friendship. According to Jones, Huff
told Bailey as they walked by that Bailey would be Jones’
‘‘next victim.’’ Jones said they didn’t make any response so
Huff repeated her statement. Jones testified she then faced
Huff and told her to go to hell. She testified Huff responded
suggesting she (Jones) go to hell. Jones stated that as she
walked toward the exit door from Huff’s department she told
Huff not to be telling her (Jones’) husband anything on the
phone while she was at work14 and stated she didn’t have
anything else to say. Jones testified that as she later reentered
Huff’s department, Huff told her she ‘‘would go to hell for
lying.’’
Huff and Jones both deny using any harsher language than
set forth above.
Jones testified she told some fellow employees about her
conversation with Huff and her fellow employees suggested
she tell her supervisor ‘‘and maybe . . . get it straightened
out.’’ Jones told Supervisor Ellenburg what had happened
and in doing so told him she did not want to lose her job
333MECO CORP.
15 Jones testified she hoped her supervisor could get with Huff’s supervisor
and between the four of them the matter could be resolved.
16 Bailey did testify that employee Debbie Hogan was suspended for 3 days
for cursing Foreman Erland O’Dell but she was not sure when the incident
took place.
as a result of the incident but rather wanted to get the matter
resolved.15
The Company presented two employee witnesses that testi-
fied regarding the incident between Huff and Jones.
Employee Bailey testified that as she and Jones walked
through Huff’s department on November 2, 1990, Jones and
Huff had an ‘‘angry’’ verbal confrontation in which they
‘‘scream[ed]’’ at each other. Bailey testified she first heard
Huff say ‘‘Judy, you’re the next one on Jeannie’s list to stab
in the back.’’ Bailey testified ‘‘I went walking on and they
started cursing one another then.’’ Bailey said ‘‘[Huff] called
[Jones] a bitch first’’ and added Jones then ‘‘hollered’’ back
to Huff that she was a ‘‘fucking bitch.’’ Bailey testified she
never heard Huff or Jones tell the other to go to hell but stat-
ed the work area was noisy and she could not hear every-
thing that was said.
Cynthia Barner, an employee that worked in the same de-
partment as Huff, testified she saw Jones and Bailey walking
in the aisle where Huff worked and that Huff ‘‘hollered’’ at
Bailey ‘‘Judy, I guess you know you’re next on her damn
list.’’ Barner testified Jones continued on but as she reached
the exit door from the department she told Huff ‘‘You go to
hell, you damn lying bitch.’’ According to Barner, Huff re-
sponded; ‘‘You’re the damn lying bitch. I guess you know
you can go to hell for lying just as well as you can for steal-
ing.’’ Barner testified that was all she heard of the conversa-
tion. Barner said the workplace was ‘‘noisy’’ because of
‘‘machines’’ and ‘‘staple guns’’ and stated more was said
that she did not hear.
I am persuaded, as testified to by Bailey and Barner, that
Huff and Jones exchanged more comments than they ac-
knowledge and that they used harsher language than they
were able or willing to recall. Barner impressed me as a dis-
interested, honest witness. That Huff and Jones used the
stronger language attributed to them by Bailey and Barner is
supported by the testimony of Supervisors Barnes and
Ellenburg. Barnes testified that although he was some 20
yards away, he heard screaming and yelling between Huff
and Jones but when he got to the immediate area Jones had
already left. Barnes said he asked Huff what had happened
and she told him Jones had called her a ‘‘bitch or something
like that’’ and added she would ‘‘kick the fucking bitch’s
ass.’’ Supervisor Ellenburg testified Jones spoke with him
after the incident and ‘‘was very concerned about her job.’’
He testified Jones explained she and Huff had engaged in a
‘‘cuss fight’’ and that Huff had called her a ‘‘fucking bitch’’
and they had told each other to go to hell. I am not unmind-
ful that none of the witnesses recounted exactly the same
version of what was said between Huff and Jones; however,
that is not troubling because the work area was noisy and it
is not unreasonable to assume that no one of them heard or
was able to recall all that was said. In that regard, I note em-
ployee Barner testified about other distractions in the work
area such as the playing of radios and the wearing of ear
plugs. Perhaps the ‘‘anger’’ and ‘‘emotion’’ involved
clouded Huff’s and Jones’ recall.
To summarize, and in light of all the above, I conclude
from a composite of the testimony that Huff and Jones en-
gaged in a heated and somewhat profane verbal exchange on
November 2, 1990.
D. Other Workplace Language
That shop talk at the plant sometimes included curse
words and/or profane language does not appear to be dis-
puted. Former Supervisor and current Quality Control Man-
ager Ellenburg testified, for example, that he had heard em-
ployees ‘‘cuss’’ and call each other names and added he had
never fired anyone for doing so. Supervisor Barnes testified
he had occasionally engaged in ‘‘shop talk’’ with employees
and had used ‘‘cuss words.’’ He was hesitant to state what
he believed constituted vulgar language but he assumed the
word ‘‘bitch’’ did not unless one added ‘‘fucking . . . to it.’’
Employee Barner, called as a witness by the Company, testi-
fied she had cursed at work and had heard other employees
and foremen do so. Barner recalled that some years ago she
was called a ‘‘damn black bitch’’ by a fellow employee.
Barner said she was about to ‘‘whip’’ the other employee
when her coworkers prevented her from doing so. She testi-
fied supervision knew of the incident but no discipline re-
sulted therefrom. Employee Bailey, also called as a witness
by the Company, testified cursing like that discussed above
was somewhat common at the plant and that she ‘‘some-
times’’ used such language herself. She said she had never
been disciplined for using such language and added she had
never heard of anyone being fired for cursing or name call-
ing.16
Employee David Bird, called as a witness by counsel for
the General Counsel, stated he had heard employees curse
one another and had also heard supervisors curse employees.
He said he had heard employees curse one another in the
presence of supervisors without being reprimanded or dis-
charged. He testified the type of curse words he had heard
were ‘‘goddamn, son-of-a-bitch, and all that stuff.’’
Jones also testified she had heard employees curse one an-
other but did not know of anyone being discharged for doing
so. Huff said it was an everyday occurrence for employees
and foremen to tell each other to go to hell. Huff testified,
without contradiction, that Supervisor Barnes told employee
Linda Easterly he was going to write her ‘‘damn ass up’’ for
being in the bathroom too much. Huff said she heard em-
ployee Judy Stills tell Leadperson Jack Rockwell ‘‘hell no’’
she wasn’t going to do certain job assignments. Huff also
testified Stills told Supervisor Mark Jones she was not going
to pack ‘‘damn chairs’’ in small boxes. Huff stated that as
far as she knew, no discipline resulted from these incidents.
E. The Company’s Actions
Company Director of Human Resources Dominic Jackson
(Jackson) testified the Huff/Jones incident happened on a Fri-
day but did not come to his attention until the following
Monday when General Foreman Bobby Buck (Buck) in-
formed him. Director Jackson said he, General Foreman
Buck, and Foreman Barnes compiled a list of employees that
might have been nearby at the time of the incident. Jackson
said they then followed normal company procedure in inves-
tigating an incident such as this by interviewing witnesses.
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 He testified they looked at some incidents that involved fisticuffs which
resulted in the employees being terminated but decided those were not similar
to what had happened in the Huff-Jones incident.
18 She asserts she told Buck the same as is reflected in her account of the
incident as set forth elsewhere in this Decision and will not be repeated here.
He testified employees Bailey, Barner, Beverly Cogdell, Ann
Hensley, and Edna Ricker were interviewed. Jackson testified
they learned from Bailey and Barner the same as those two
testified at trial.. He testified the remaining three witnesses—
Cogdell, Hensley, and Ricker—said they only heard parts of
the Huff/Jones exchange but that all three said it was ‘‘heat-
ed.’’ Jackson said they learned from employee Cogdell that
the phrase ‘‘go to hell’’ had been used. He stated they
learned from employee Hensley that the phrase ‘‘mother-
fucking liar’’ had been used. Jackson said they also inter-
viewed Huff and Jones. Jackson testified Jones ‘‘mentioned
that Ms. Huff had called her a lying bitch and had told her
to go to hell.’’ Jackson testified:
Well, we looked at the entire situation and basically
felt like that there were four or five things going on
here. Number one, there was a heated exchange be-
tween two people, a direct personal exchange in the
factory on worktime on one of the employees. In fact,
there was—some of the witnesses mentioned that Ms.
Huff had even moved over toward Ms. Jones. In this
exchange it was loud, angry, there was profanity.
Also, Mr. Barnes reported to us that Ms. Huff had
mentioned several of these things. Also, James
Ellenburg later had brought up the fact that Ms. Jones
had been worried about her job. In looking at all of the
evidence that we could gather it looked like this was
more than just a general run of the mill type of an inci-
dent.
Jackson testified they looked at other situations they
thought were somewhat similar to this one17 and concluded
three were similar enough to the Huff-Jones incident to uti-
lize as precedent. The first such incident involved an em-
ployee, Lawrence Supcoe, who had been terminated on Janu-
ary 11, 1990, for verbal abuse. Supcoe’s termination notice
reflected he was discharged pursuant to group III rules, spe-
cifically, rule 17 related to abusive language to any super-
visor or employee. Specifically, Jackson testified Supcoe
called his supervisor ‘‘a four-eyed mother-fucking son-of-a-
bitch’’ and challenged the supervisor ‘‘to meet him down at
the Burger Chef or Burger Queen or somewhere like that.’’
The second incident Jackson identified as being similar in-
volved an employee, Asa Dyer, who had been discharged on
April 18, 1989. Dyer’s termination notice reflected ‘‘em-
ployee using abusive language to leadlady’’ and ‘‘didn’t
want to do his job’’ but rather ‘‘wanted to do another job.’’
The third incident which Jackson said was similar involved
an employee, Rita Braun, who was discharged on May 24,
1989. Her termination notice reads ‘‘Employee was using
abusive language to another, or more than one employee.
Penalties for Group III Rule #17 in this particular case is ter-
mination.’’ Jackson testified Braun, who had worked in the
same department that Huff worked, went ‘‘through the plant
that particular afternoon [May 24, 1989] . . . cursing people
left and right. Just lots of people, including her husband and
other people as well.’’
On cross-examination, Director Jackson acknowledged
Supcoe not only used abusive language toward his supervisor
but threatened to try and whip him. Jackson acknowledged
threatening a supervisor was pretty serious and ‘‘not totally
comparable’’ with the Huff-Jones situation. Jackson further
acknowledged on cross-examination that Dyer was a proba-
tionary employee who had only worked for the Company ap-
proximately 16 days at the time of his discharge and had not
only used abusive language toward his leadperson but had
also been insubordinate in that he wanted to pick his own
job assignments. Jackson also acknowledged on cross-exam-
ination that employee Braun had almost resigned in that she
had stated ‘‘nothing would do her better than get out of [the
Company].’’ Jackson could not deny Braun had been dis-
charged for abusing her husband on company time, causing
him problems, kicking him on the legs, and slapping him in
the face. He even added ‘‘it was more than just her husband.
She was verbally abusing some other employees as well.’’
Jackson said the Supcoe-Dyer-Braun incidents were as
close as the Company could come to what had happened in
the Huff-Jones situation and candidly acknowledged no inci-
dents were exactly like Huff’s and Jones’ situation.
Jackson testified; ‘‘After looking at all these things we
concluded that separation [for Huff and Jones] was the prop-
er course [to follow].’’
F. The Events on and After November 8, 1990
Huff and Jones were discharged on November 8, 1990.
They were discharged pursuant to rules set forth in the ‘‘Em-
ployee Guide to Meco’’ a publication provided to all em-
ployees. The specific rule cited was group III, rule 17 which
reads:
Abusive language to any supervisor or any employee.
The penalties for group III rule violations for a first offense
range from a written correction to discharge ‘‘depending on
[the] nature of [the] offense.’’
Neither Huff nor Jones worked the days immediately fol-
lowing their November 2 incident, however, their reasons for
not working were unrelated to the incident. Jones suffers
from carpal tunnel and has been under medical care restricted
from working since on or about November 7, 1990. Huff was
granted personal leave for Monday, November 5, and Tues-
day, November 6, 1990, to attend to her farming interests.
Huff testified she worked her usual job on November 7,
with no mention being made of the November 2 incident.
Huff said she was called to General Foreman Buck’s office
at approximately 10 a.m. on November 8, and asked for her
version of what had happened between she and Jones. She
told Buck what had happened18 and returned to work. She
testified that at approximately 10:30 a.m. she was called back
to Buck’s office where Buck told her ‘‘I hate to do this . . .
but I’ve got to discharge you for what happened.’’ General
Foreman Buck told Huff she had a right to speak with Manu-
facturing Manager Wrenn. Huff told Buck she wanted to do
so. Buck arranged for Huff to immediately see Wrenn. In ad-
dition to Manufacturing Manager Wrenn and General Fore-
man Buck, Director of Human Resources Jackson was
present. Huff testified:
335MECO CORP.
19 She indicated she told them about the incident in the same manner as she
testified to at the trial herein.
[I] said, ‘‘Mr. Wrenn,’’ I said, ‘‘you mean you’re
going to discharge me for this and I’ve been here ten
years and I’ve never been counseled, I’ve never been
written up. I’ve always made over production for the
Company and you’re going to fire me for this?’’
And he said, ‘‘Yes.’’ He said, ‘‘Sharon, when we
fire one we have to fire the other one.’’ And he said,
But let Mr. Jackson and myself and Mr. Buck get back
with [plant president] Landas.
‘‘And we’ll get back with you by Tuesday.’’
Huff testified Wrenn also told her she had been a good
worker and he had never received any complaints about her.
As they left the office, General Foreman Buck escorted Huff
to retrieve her personal belongings and he provided her with
paperwork for unemployment but asked her not to ‘‘do any-
thing’’ with the paperwork until Tuesday because he was
going to try to have her back working by that time ‘‘because
[she was] one hell of a worker.’’ Huff testified she did not
thereafter hear from the Company so she telephoned Director
Jackson on Tuesday, November 13, 1990. Jackson told her
Plant President Landas had decided it was best to let the dis-
charges stand.
Jones testified she was called at home by the personnel of-
fice and asked to come to the Company to meet with Super-
visor Ellenburg. She met with Ellenburg in General Foreman
Buck’s office along with Director Jackson. Jones told them
what had happened.19 After she gave her version of the inci-
dent, she was excused from the office and returned to the
personnel area where she waited approximately 30 minutes.
At that time, Supervisor Ellenburg escorted her back to Gen-
eral Foreman Buck’s office where Ellenburg told her he had
no alternative but to terminate her. Jones asked if she could
have another chance and was told no. Jones was given her
separation notice and left the plant.
Analysis and Conclusion
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) and (1) of the Act turn-
ing, as does the instant case, on employer motivation. First,
counsel for the General Counsel must make a prima facie
showing sufficient to support the inference that protected
conduct was a ‘‘motivating factor’’ in the employer’s deci-
sion.
Upon such a showing, the burden shifts to the employer
to demonstrate that the same action would have taken place
even in the absence of protected conduct.
I am persuaded counsel for the General Counsel met his
burden of establishing a prima facie case. First, Huff and
Jones had been visible and vocal supporters of the Union
during the various union campaigns at the Company. They
actively engaged in the most recent campaign and the Com-
pany was fully aware of their activities. Huff, for example,
repeatedly wore a prounion T-shirt and buttons at work. In
the most recent union campaign, Supervisor Edds told Huff
he did not like the union buttons she was wearing at the time
and also told her, ‘‘the Company was going to get rid of ev-
erybody there that was associated with the Union, working
for the Union’’ and added the Company ‘‘wasn’t going to
tolerate it any more and they was going to find every reason
in the world to get rid of the people that was working for
the Union.’’ Although this took place in October 1989, and
the Board-conducted election was not until March 1990, and
Huff’s termination was not until November 8, 1990, such
unrefutted comments clearly demonstrate an antiunion ani-
mus and motive on the part of the Company to rid itself at
some point of union supporters. I am not unmindful that
Edds was not Huff’s supervisor at the time of her discharge
and there is no showing he played any role in her discharge;
however, the Company’s animus toward its employees’ union
activities was not refuted in any way. That the Company be-
lieved Jones was continually involved with the Union is
demonstrated by the fact Supervisor Carter asked her in the
present of fellow employee Bailey if the Union was starting
up again and when told they had not heard anything, Super-
visor Carter responded ‘‘Well, I know that you have heard
something about it.’’ Although the date of this conversation
was not clearly established in the record, the actual conversa-
tion was not disputed and the record supports the finding,
which I have made, that it took place in October 1990.
Counsel for the General Counsel’s prima facie showing is
stronger if the Carter conversation took place in October
1990, however, if it was concluded the conversation occurred
earlier, it would not defeat counsel for the General Counsel’s
prima facie showing. In summary, I’m persuaded the ele-
ments of a prima facie case have been established, namely,
union activity by the discharged employees known to the
Company with antiunion animus having been demonstrated
in general and specifically directed toward the discharged
employees.
I am, for a number of reasons, persuaded the Company
failed to demonstrate it would have taken the same action in
the absence of any protected conduct on the part of Huff and
Jones. First, the Company tolerated in others the type of con-
duct it discharged Huff and Jones for. The record establishes,
the Company tolerates profanity in the workplace by super-
vision as well as employees. Employees Barner and Bailey,
both called as witnesses by the Company, testified they used
(and heard others use) profanity in the workplace with no
disciplinary action being taken against them. Barner specifi-
cally told of women cursing women which is exactly what
occurred in the Huff-Jones incident. Barner said she had also
heard supervisors curse. Supervisor Barnes testified it was
nothing out of the ordinary to hear someone called a
‘‘bitch.’’ Supervisor Ellenburg acknowledged he had heard
employees curse each other and call each other names and
added he had never fired anyone for doing so. The Company
acknowledged that employee Lisa Shank used profanity in
the workplace and was disciplined pursuant to the same rule
as Huff and Jones, however, Shank was only reprimanded.
Director Jackson acknowledged Shanks’ offense involved
‘‘some damns and hells.’’ Thus, it is clear the Company tol-
erated profanity and when it did take any corrective action
related to profanity it involved discipline far less than dis-
charge. Simply stated, the Company tolerated like conduct
for which it discharged union supporters Huff and Jones.
The three situations involving discharged employees
(Supcoe, Dyer, and Braun) that the Company relied on to
demonstrate the validity of its actions against Huff and Jones
all involved more than the use of profane or vulgar language.
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 An employer cannot carry its Wright Line burden simply by showing it
had a valid reason for its actions, rather, it must ‘‘persuade’’ by a preponder-
ance of the evidence, that the actions would have taken place even absent the
protected conduct. This the Company herein failed to do.
21 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set out in the 1986 amendments to
26 U.S.C. § 6621.
22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
23 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
Supcoe, for example, not only cursed his supervisor, but
threatened to try to whip him by challenging the supervisor
to meet him at a facility away from the plant. Director Jack-
son candidedly admitted the Company could not have em-
ployees threatening its supervisors without disciplinary action
taken against them. Employee Dyer was a probationary em-
ployee who not only cursed his leadperson but the 16-day
employee also wanted to specifically select what work he
was willing to perform. Again, the discharge involved far
more than just profanity. Employee Braun not only cursed
several employees but assaulted her husband who was work-
ing at the time. It is clear from the circumstances surround-
ing the above three incidents that each involved more than
just employees using profanity. I am persuaded the Company
simply seized upon the exchange between Huff and Jones to
rid itself of two union supporters. Thus, I conclude the Com-
pany has failed to demonstrate it would have discharged Huff
and Jones, both of whom were admittedly good employees,
in the absence of any protected conduct on their part.20 This
conclusion is buttressed by the fact that when the Company
investigated the incident they interviewed Huff and Jones last
and within 30 minutes of each’s interview, they were termi-
nated. Such suggests the Company had already concluded it
would terminate the two employees even before it had heard
their versions of the events.
CONCLUSIONS OF LAW
1. Meco Corporation is a corporation engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Oil, Chemical and Atomic Workers International Union,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By discharging on or about November 8, 1990, and
thereafter failing and refusing to reinstate its employees Shar-
on Huff and Jeannie Jones because of their union, concerted,
and protected activities, the Company engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
4. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found the Company discriminatorily discharged its
employees Huff and Jones, I shall recommend it be ordered
to offer them immediate and full reinstatement to their
former positions of employment, or, if their former positions
no longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges pre-
viously enjoyed and make them whole for any loss of earn-
ings they may have suffered by reason of the discrimination
against them with interest. Backpay shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest, as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).21 I also recommend the
Company be ordered to remove from its files all references
to their discharges and to notify them in writing that this has
been done and that evidence of these unlawful actions will
not be used as a basis for any future personnel actions
against them. Finally, it is recommended the Company be or-
dered to post a notice to its employees attached hereto as
‘‘Appendix’’ for a period for 60 days in order that employ-
ees may be apprised of their rights under the Act and the
Company’s obligation to remedy its unfair labor practices.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended22
ORDER
The Company, Meco Corporation, Greeneville, Tennessee,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because of their membership in, or activities on be-
half of, the Union or because they engage in other protected
concerted activities.
(b) In any like or related manner interfering with restrain-
ing or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer its employees Huff and Jones immediate and full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earnings, plus
interest, suffered because of the illegal actions against them.
(b) Remove from its files all references to the discharge
of Huff and Jones and notify them in writing this has been
done and that evidence of their unlawful discharges will not
be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its Greeneville, Tennessee facility, copies of the
attached notice marked ‘‘Appendix.’’23 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Company’s authorized representa-
tive, shall be posted by the Company immediately on receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
337MECO CORP.
Company to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities
WE WILL NOT discharge our employees because of their
activities on behalf of Oil, Chemical and Atomic Workers
International Union, AFL–CIO or any other labor organiza-
tion.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce you in the exercise of rights guaranteed
you by Section 7 of the Act.
WE WILL offer Sharon Huff and Jeannie Jones immediate
and full reinstatement to their former jobs, or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and WE WILL make them whole for any
loss of earnings and benefits resulting therefrom, less any net
interim earnings, plus interest.
WE WILL remove from our files any references to Huff’s
and Jones’ discharges and WE WILL notify them in writing
this has been done and that evidence of their unlawful dis-
charges will not be used against them in any way.
MECO CORPORATION