MTD Products

National Labor Relations Board - Board Decisions

Mar 18, 1993

310 N.L.R.B. 733 (N.L.R.B. 1993)

733
310 NLRB No. 126
MTD PRODUCTS
1 On June 22, 1992, Administrative Law Judge Russell M. King,
Jr., issued the attached decision. The Charging Parties filed excep-
tions and a supporting brief. The Respondent filed an answering
brief to the Charging Parties’ exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Charging Parties have excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 With respect to the ‘‘distribution’’ aspect, we note that the rule
is not confined to work areas and that Respondent has not shown
that it knowingly tolerated distribution in nonwork areas.
MTD Products, Inc. and Penney Robertson and
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of
America, UAW and David L. Reid. Cases 26–
CA–12936, 26–CA–13124, and 26–CA–13157
March 18, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The issues addressed here are: whether the Respond-
ent violated Section 8(a)(1) of the Act by making cer-
tain statements to employees and by maintaining an
overly broad rule against solicitation and distribution;
and whether the Respondent violated Section 8(a)(3)
and (1) of the Act by separately warning, suspending,
and/or discharging three employees.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, except as discussed below with respect to the
Respondent’s no-solicitation, no-distribution rule.
The judge found that Respondent’s plant rule 27,
prohibiting solicitation or distribution ‘‘[o]n Company
premises . . . unless approved by the Company,’’ was
presumptively invalid under Our Way, Inc., 268 NLRB
394 (1983). The judge went on to observe, however,
that the rule’s existence had no apparent restrictive im-
pact on the wearing of union insignia, the distribution
of union literature, and the solicitation of union author-
ization card signatures on the Respondent’s premises
during the Union’s organizational efforts in 1987 and
1988. The judge therefore concluded that the Respond-
ent did not violate Section 8(a)(1) because the rule was
applied in such a way as to convey an intent to permit
union solicitation or distribution during the employees’
nonworking time. We disagree.
At the outset, we note that the rule, on its face, is
overly broad, i.e., it is not restricted to working time.
It is clear that the maintenance of a rule that is not so
restricted is presumptively unlawful. See Our Way,
supra. However, an employer can avoid the finding of
a violation by showing through extrinsic evidence that
its rule was communicated or applied in such a way
as to convey an intent clearly to permit solicitation
during breaktime or other periods when employees are
not actively at work. Our Way, 268 at 395 fn. 6, citing
Essex International, 211 NLRB 749, 750 (1970). We
find, however, that Respondent in this case failed to
make that showing.
In this regard, we note that Respondent failed to ad-
duce any evidence that it told employees that solicita-
tion during nonworking time was permitted. Nor did
Respondent show that it knowingly tolerated solicita-
tion during nonworking time. Finally, the record shows
that when Respondent invoked the rule, its invocation
did not draw a distinction between working and non-
working time. In this latter respect, we note that the
Respondent discharged employee Penney Robertson
after she circulated a petition among working employ-
ees in a production area which she was forbidden to
enter while serving a disciplinary suspension. Her dis-
charge notice cited, inter alia: ‘‘Plant Rule #27—Unau-
thorized soliciting of written matter, pledges, petitions,
without approval.’’ The notice describes the offensive
conduct as ‘‘soliciting an unauthorized petition.’’
There is no reference in the notice to the timing or
locus of the solicitation. The clear implication was that
solicitation per se was prohibited absent approval.
Accordingly, we conclude that Respondent has
failed to show that the rule meant anything other than
what it said, viz all solicitation and distribution were
prohibited. Therefore, we find that Respondent violated
Section 8(a)(1) by maintaining an overly broad rule
against solicitation and distribution.3
Although we have found that Respondent relied on
an invalid rule as one reason for Robertson’s dis-
charge, this finding does not affect our decision to af-
firm the judge’s conclusion that Respondent did not
violate Section 8(a)(3) of the Act by discharging Rob-
ertson. The Respondent has met its burden of proving
that it would have discharged Robertson, even in the
absence of the unlawful rule and of her union activi-
ties, based on her unauthorized, insubordinate presence
in a plant production area, with her child, and without
required safety glasses.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s conclu-
sions of law 3.
‘‘3. By maintaining and enforcing an overly broad
rule that prohibits unauthorized solicitation and dis-
tribution at all times, including employees’ nonworking
time, the Respondent has violated Section 8(a)(1) of
the Act.’’
2. Insert the following as paragraphs 4 and 5.
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
1 Hereafter, all dates in May through December are in 1988, and
all dates in January through April are in 1989, unless otherwise indi-
cated.
2 The term ‘‘General Counsel,’’ when used herein, will normally
refer to attorney in the case acting on behalf of the General Counsel
of the Board, through the Regional Director.
3 These two additional allegations are found in pars. 9(d) and 12
of the amended consolidated complaint. The pertinent parts of the
Act (29 U.S.C. § 151 et seq.), covering all alleged violations in these
consolidated cases, read as follows:
Sec. 8(a). It shall be a unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in Section 7
. . . .
(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or
discourage membership in any labor organization . . . .
. . . .
Sec. 7. Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection . . . .
‘‘4. The unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
‘‘5. The Respondent did not commit any other un-
fair labor practices.’’
ORDER
The National Labor Relations Board orders that the
Respondent, MTD Products, Inc., Martin, Tennessee,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Enforcing and maintaining an overly broad rule
that prohibits unauthorized solicitation and distribution
at all times, including employees’ nonworking time.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind plant rule 27 which prohibits unauthor-
ized solicitation and distribution at all times, including
employees’ nonworking time.
(b) Post at its place of business in Martin, Ten-
nessee, copies of the attached notice marked ‘‘Appen-
dix.’’4 Copies of the notice, on forms provided by the
Regional Director for Region 26, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the amended consoli-
dated complaint is dismissed insofar as it alleges viola-
tions of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT try to enforce and maintain a rule
prohibiting unauthorized solicitation or distribution
during employees’ nonworking time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind plant rule 27 which prohibits unau-
thorized solicitation and distribution at all times, in-
cluding employees’ nonworking time.
MTD PRODUCTS, INC.
William D. Levy, Esq., for the General Counsel.
Jay Kiesewetter, Esq. and Debbi M. Cohen, Esq. (Young &
Perl), of Memphis, Tennessee, for the Respondent.
Mark Allen, Esq. (Agee, Allen, Godwin & Morris), of Mem-
phis, Tennessee, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING JR., Administrative Law Judge. These
consolidated cases were heard by me in Dresden, Tennessee,
on 14 various days between November 1, 1989, and May 22,
1990.1 The charge in Case 26–CA–12936 was filed by the
individual, Penny Robertson, on November 30 and alleged
her unlawful suspension and discharge by the Respondent
MTD Products, Inc. (MTD or the Company). Based on this
charge, a complaint was issued on December 23 by the Re-
gional Director for Region 26 of the National Labor Rela-
tions Board (the Board), on behalf of the Board’s General
Counsel.2 The complaint alleged the unlawful suspension (on
November 2) and discharge (on November 4) of Robertson
in violation of Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act), and additionally two other violations
involving threatening employees with discharge on October
21 because of their union activities, and the promulgating
and maintaining of an invalid nonsolicitation rule on Novem-
ber 4, in violation of Section 8(a)(1) of the Act.3 The charge
735MTD PRODUCTS
4 These two additional violations are found in pars. 10(a) and (d)
of the amended consolidated complaint. The other two additional al-
legations involved unlawful interrogation and creating an impression
of surveillance in December. These allegations appear in pars. 10(b)
and (c) of the amended consolidated complaint, and were dismissed
during the hearing without objection because of lack of evidence.
5 These 11 additional violations, by paragraph and section number
corresponding to the amended consolidated complaint, are summa-
rized as follows: 7(a) in late May, Supervisor Lynn Payne interro-
gated an employee; 7(b) in late May, Payne threatened to discharge
an employee; 8(a) in September, Pressroom Supervisor Ben Gregg
interrogated an employee; 8(b) in September, Gregg threatened an
employee with unspecified reprisals; 9(e) in January, Gregg interro-
gated employees; 9(f) in January, Gregg created the impression of
surveillance among employees; 9(g) in January, Gregg threatened an
employee with unspecified reprisals; 11(a) in February, Supervisor
Robert Galey interrogated an employee; 11(b) in February, Galey
created an impression of surveillance among employees and re-
quested an employee to give written assurance not to engage in
union activities in the future; 13 on November 4 and February 9,
issuing written warning to employee Joe Brasfield. Pars. 9(a), (b),
and (c) of the amended consolidated complaint were withdrawn by
motion of the General Counsel during the hearing because they du-
plicated pars. 8(a), (b), and (c).
6 For the purposes of this decision, those allegations in the amend-
ed consolidated complaint which were thus dismissed at the time are
those found in the following pars.: 7(a) and (b); 8(a), (b), and (c);
9(d); 11(a) and (b); and 12. Also dismissed at the time were pars.
9(a), (b), and (c), and pars. 10(b) and (c), but these allegations were
subsequently either withdrawn by the General Counsel or dismissed
without objection because of lack of evidence, and are no longer in-
volved in the case.
7 The facts found herein are based on the record as a whole and
on my observation of the witnesses. The credibility resolutions here-
in have been derived from a review of the entire testimonial record
and exhibits with due regard for the logic of probability, the de-
meanor of the witnesses, and the teaching of NLRB v. Walton Mfg.
Co., 369 U.S. 404, 408 (1962). As to those testifying in contradic-
tion of the findings herein, their testimony has been discredited ei-
ther as having been in conflict with the testimony of credible wit-
nesses or because it was in and of itself incredible and unworthy of
belief. All testimony and evidence, regardless of whether or not men-
tioned or alluded to herein, has been reviewed and weighed in light
of the entire record. Certain more specific credibility rulings and
findings will appear later in this decision.
in Case 26–CA–13124 was filed by the International Union,
United Automobile, Aerospace & Agriculture Implement
Workers of America, UAW (the Union) on April 11 and al-
leged the unlawful suspension and discharge of employee Joe
Brasfield. Based on this charge, the Regional Director issued
a second complaint on May 3, 1989, alleging Brasfield’s un-
lawful suspension (on February 28) and discharge (on March
23) in violation of Section 8(a)(1) and (3) of the Act, and
additionally four other violations of Section 8(a)(1) of the
Act, including the threatening of an employee with unspec-
ified reprisals by Plant Manager James Schuster on Novem-
ber 4, and the threatening of an employee with discharge by
Schuster on February 9 and 28.4 The charge in Case 26–CA–
13157 was filed by the individual, David Reid, on April 28
alleging only his unlawful discharge on March 23. As a re-
sult, the Regional Director, on June 6, 1989, issued an
amended consolidated complaint which included all of the al-
legations contained in the two earlier complaints, Reid’s un-
lawful discharge in violation of Section 8(a)(1) and (3) of the
Act, and additionally some 11 other violations of Section
8(a)(1) of the Act ranging from May (1988) to February
(1989).5 MTD filed timely answers in the cases, denies all
the violations, and alleges that the disciplining and discharge
of employees Robertson, Brasfield, and Reid were for good
cause and unrelated to their union sympathies or activities.
During the hearing and on December 6, 1989, the General
Counsel rested his case and the Union completed its evi-
dence. On December 7, 1989, counsel for MTD made, inter
alia, a motion to dismiss some of the 8(a)(1) allegations
under Nickles Bakery, 296 NLRB 927 (1989), wherein the
Board required a factual nexus between the charge and the
complaint allegations, applying the ‘‘closely related’’ test. I
granted the motion in part.6 After various motions and orders
in the case, the Board granted the General Counsel’s special
permission to appeal the dismissal of some of the 8(a)(1) al-
legations, reinstated the allegations, indicating that the
‘‘closely related’’ issue is more appropriately treated in the
exceptions process rather than in the context of a interlocu-
tory appeal. This issue will be treated in more detail later
herein.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
briefs filed herein by the General Counsel, counsel for the
Union, and counsel for the Respondent, I make the following
FINDINGS OF FACT7
I. JURISDICTION AND THE LABOR ORGANIZATION
The pleadings, admissions, and evidence in the cases es-
tablish the following jurisdictional facts. MTD is, and has
been at all times material, a corporation with an office and
place of business (plant) in Martin, Tennessee, where it has
been engaged in the manufacture, sale and distribution of
lawnmowers, automotive stampings, and parts. Annually, and
in the course and conduct of said business operations, the
Respondent has sold and shipped products and materials val-
ued in excess of $50,000 directly to points located outside
the State of Tennessee. Likewise MTD, in the course and
conduct of its business operations, has purchased and re-
ceived at its Martin, Tennessee plant materials, goods, and
products valued in excess of $50,000 directly from points lo-
cated outside the State of Tennessee. I find, as admitted, that
MTD Products, Inc. is now, and has been at all times mate-
rial, an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Further, and as admitted herein, I find that the Union has
been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR PRACTICES
A. Brief History
MTD’s Martin, Tennessee plant was built in 1984 and has
two functions, the manufacture and assembly of riding mow-
ers, and the manufacture of automobile stampings including
bumpers for Chrysler and several key frame components for
Ford at its plant in Hazelwood, Missouri. From its inception,
the plant’s general manager was John Rainone, who testified
that the plant had a wide range of jobs including pressroom,
mig and resistance welding, assembly, and related support
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The third complaint, based in part on the last charge filed by
David Reid regarding his discharge only, was issued June 6, 1989.
Pars. 7(a) and (b) were among those allegations I had initially dis-
missed under Nickles Bakery, supra.
9 Fletcher did not testify in the case.
10 Reid’s work situation will be discussed later in this decision and
regarding his discharge, which occurred on March 23, 1989.
activities including toolroom, tool and die makers, mainte-
nance, quality control, shipping, receiving, and janitorial.
In 1987 the Union attempted to organize MTD’s produc-
tion and maintenance employees (approximately 250), and on
June 5, 1987, it filed a representation petition (Case 26–RC–
6952). On July 30, 1987, a Board-conducted election was
held in which the Union lost 136 to 105. On July 27, 1988,
the Union filed another representation petition (Case 26–RC–
7070), and a Board-conducted election was held on October
21, 1988, which the Union again lost 139 to 122. No charges
were filed after the second election, and although the Union
filed objections to conduct affecting the results of the elec-
tion, they were subsequently withdrawn by the Union. The
three discharged employees in these cases supported the
Union. Employee Joe Brasfield displayed his support on the
day of the second election and employee David Reid, by his
account, commenced his open support in August. Employee
Penny Robertson commenced her open support for the Union
prior to the first election of July 30, 1987, when she was an
in-plant union organizer, and later an election observer for
the Union. Robertson continued her support through the sec-
ond election as a member or the Union’s organizing com-
mittee and again as an election observer for the Union. Rob-
ertson’s discharge came 2 weeks after the second election on
October 21, 1988, but the discharges of Brasfield and Reid
came some 5 months later (March 23, 1989). The various al-
leged 8(a)(1) violations span from 2 months prior to the sec-
ond election (May 1988) to 6 months after the election (April
1989). As indicated earlier, no 8(a)(1) violations were al-
leged in the three separate charges alleging the three unlaw-
ful discharges. Several ways to organize this decision were
considered. Since the ‘‘closely related’’ issue under the
Board’s decision in Nickles Bakery, supra, initially still ex-
ists, I shall discuss the some 20 remaining allegations ap-
proximately as they occurred in time, keeping in mind that
the first election was held on July 30, 1987, and the second
on October 21, 1988. Again, all dates in May through De-
cember will be in 1988 and all dates in January through
April will be in 1989 unless otherwise indicated. For imme-
diate clarity, on occasions full dates are used.
B. The Late May Allegations Regarding
Supervisor Payne
Paragraphs 7(a) and (b) of the third or amended consoli-
dated complaint (the complaint or the third complaint) allege
that ‘‘in or about late May’’ Supervisor Lynn Payne interro-
gated an employee concerning his union membership, activi-
ties, and sympathies, and threatened to discharge an em-
ployee because the employee’s union activities and sym-
pathies, in violation of Section 8(a)(1) of the Act.8 These al-
legations apparently arose out of an alleged conversation be-
tween employee David Reid and Foreman Payne in the plant
sometime in August (the ‘‘in or about late May’’ date was
never changed by amendment or otherwise). Reid testified
that ‘‘about the middle’’ of August he had put a union button
on his cap for the first time, and during the first break in
the morning, in the break room and in front of other employ-
ees, Payne ask him if he thought it (the button) would do
him any good, and to others present stated, ‘‘Hey, everybody
look, David Reid has got him a union button on . . . he
thinks that’s going to help him.’’ Reid added that later on
that day or ‘‘for sure sometime that same week,’’ and in his
department, Payne again asked him what good he thought
‘‘the UAW’’ was going to do him, to which he replied, ‘‘It
couldn’t hurt nothing . . . Look where I’m at now,’’ refer-
ring to his job as one of the ‘‘sorriest’’ in the plant, to which
Payne replied, ‘‘Well, the next step up is out the door.’’ Ac-
cording to Reid, employee Billy Cash was also present dur-
ing this interchange, and also, he believed, Foreman J. R.
Fletcher.9
Lynn Payne was a foreman in the assembly department
and had worked for MTD for 5 years. Payne testified that
he had supervised Reid for 3 months in 1988 and that they
were ‘‘kind of fishing buddies, and discussed fishing a lot
. . . and were pretty good friends inside and outside the
plant.’’ According to Payne, Reid was ‘‘very vocal’’ about
his support for the Union, talking to other people and passing
out union buttons, and the he and Reid discussed the Union
several times when he supervised him. Payne conceded that
he probably told Reid that he had one of the best jobs in the
plant to try to pick up his morale after Reid had complained
that he had one of the sorriest jobs in the plant. Payne denied
that he ever had a conversation with Reid in the breakroom
about the Union, that he ever ask Reid what he was doing
with a union button on or joked about Reid’s wearing of
union buttons in front of other employees, and also denied
ever telling Reid that the next step up was out the door. Billy
Wayne Cash had worked in the assembly department at
MTD for 4 years, knew Reid when he worked there and was
also supervised for several months by Payne. Cash testified
that the employees and Payne would discuss the Union, and
that Payne ‘‘would give us a straight answer.’’ Cash indi-
cated that during the 1988 election campaign he never heard
Payne and Reid talk about the Union in the breakroom, but
that on occasion he overheard them discussing the Union in
the assembly department, and he never heard Payne tell Reid
that he could lose his job because of his union support, or
that the next step up for him would be out the door. Cash
added that other fellow employees had made such ‘‘out the
door’’ remarks because Reid ‘‘had problems . . . had been
moved from department to department, and we figured that
that would be the next step, if he didn’t change his attitude
and straighten up.’’10
I credit the testimony of Payne and Cash over that of Reid
and thus find no violations of the Act as alleged in para-
graphs 7(a) and (b) of the complaint. After hours of observ-
ing Reid’s testimonial demeanor, and considering other cred-
itable testimony in the case, I concluded that all of Reid’s
key testimony was untruthfull. Reid was a highly charged in-
dividual with a poor work attitude. He was also mean, ob-
noxious, rude, and a bully, facts which will emerge in later
testimony. Early on, Reid sensed his possible demise at
MTD and contrived an ‘‘its their fault’’ theory, which al-
lowed him the defense of making things up, or indeed, being
outright untruthfull.
737MTD PRODUCTS
11 These violations appeared for the first time in the third com-
plaint (the amended consolidated complaint), which was issued after
Reid filed his charge on April 28, 1989, alleging only his unlawful
discharge (on March 23, 1989). These three allegations were also
initially dismissed by me under MTD’s Nickles Bakery motion.
12 This allegation appeared in the first complaint (Case 26–CA–
12936) issued on December 23, 1988, as a result of Robertson’s
charge (filed November 30) alleging only her unlawful suspension
and discharge (on November 4). It was also an allegation I had dis-
missed under the Nickles Bakery motion.
13 Galey’s name is misspelled ‘‘Galley’’ in the complaint.
14 During his testimony, Personnel Director Schuster identified the
timecards of Davis, ‘‘Ronald’’ Rogers, and Steve Melton, in connec-
tion with Davis’ testimony. Ronald Rogers was not a supervisor and
Davis named Kevin Rogers (not Ronald Rogers), and did not men-
tion Steve Melton. In my opinion, these timescards are useless in
this case.
C. The Allegations Involving Supervisor Ben Gregg
in 1988
Paragraphs 8(a), (b), and (c) of the complaint allege
8(a)(1) violations involving Pressroom Supervisor Ben Gregg
and employee David Reid. It is charged that ‘‘in or about
September 1988’’ Gregg, while traveling in an automobile,
(a) interrogated Reid regarding his union membership, activi-
ties and sympathies; (b) threatened Reid with unspecified re-
prisals because of his union activities; and (c) threatened
Reid with loss of jobs of MTD employees because of their
union activities.11 Reid testified that in September (before the
October 1988 election) he cut his right arm at the plant and
was taken by safety man Jack Bell to the Medical Center in
Martin, where he received stitches, and that Ben Gregg
picked him up and took him back to the plant. According to
Reid, when they got back to the plant parking lot, Gregg
started ‘‘talking’’ to him about the Union and ask him,
‘‘How he felt about the union . . . .’’ Reid indicated he told
Gregg that the Union could help in a lot of things, after
which Gregg asked him if he were ‘‘crazy,’’ and commenced
to down the Union. Reid testified that Gregg then stated:
If the union did come in there, they would send their
work up north . . . we’ll send work back up there to
keep from doing it down here . . . This is not going
to be a union plant, and they’re not going to do any-
thing but what we say . . . . We’re going to be the
boss, whether we have a union or not.’’
Reid related that the conversation lasted ‘‘approximately an
hour and a half,’’ and at the time he wore a union button
on his cap.
Ben Gregg was the superintendent of fabrication, over the
welding department and pressroom. He had been with MTD
18 years, with the last 5-1/2 years at the Martin plant. Gregg
testified that Reid had worked in his area of responsibility
(the pressroom) for ‘‘about three or four months or so’’ and
described Reid as an ‘‘average’’ press operator. While Gregg
gave some testimony about Reid’s other problems in the
plant, regarding the automobile incident, Gregg was only
asked on direct examination, ‘‘Did you ever have a conversa-
tion with David Reid in a car about the union?’’ to which
he responded, ‘‘No.’’ There apparently were no other wit-
nesses to the alleged conversation and surprisingly there was
no cross-examination of Gregg regarding the matter.
I credit the testimony of Gregg over that of Reid and thus
find no violations of Section 8(a)(1) of the Act as alleged in
paragraphs 8(a), (b), and (c) of the complaint. Further, and
in my opinion, Reid’s testimony that he and Gregg, a major
supervisor in the plant, sat talking in Gregg’s car for 1-1/2
hours, is itself incredible and unworthy of belief, regardless
of what time of day it was.
D. The 1988 Election Day Remark by Supervisor Gregg
Paragraph 9(d) of the complaint alleges that on or about
October 21, Gregg threatened employees with discharge be-
cause of their union activities and sympathies, in violation of
Section 8(a)(1) of the Act.12 Employee Phillip Wayne Davis
was employed by MTD in December 1985. He was a quality
control inspector in the press and welding departments. The
second election was conducted at the plant on October 21.
Davis testified that about 15 to 20 minutes after the election
count had taken place he was in his ‘‘inspection cage’’ and
Gregg, who was about 5 feet away, stated, ‘‘There were
some people . . . that were for the union that would not be
there next year . . . that he couldn’t do much about the rest
of them, but the ones that worked under him, he could.’’
Davis indicated that Gregg made this remark to a group of
supervisors which included Shift Supervisor George Wade,
Supervisor Kevin Rogers, his supervisor, Robert Galey,13 and
Supervisor Dwight Emerson. Davis testified that what Gregg
said ‘‘shocked’’ him, indicating that he was not a part of the
group of supervisors but ‘‘I was just standing in the wrong
place at the wrong time, I guess.’’14
Gregg denied that he meet with any group of supervisors
after the election either in the welding department or any-
where on the production floor, denied that he ever made any
remark about he or MTD getting rid of union supporters, and
testified that shortly after the election he went home. Emer-
son testified that following the election he and Gregg went
back to the pressroom and that there was never any meeting
or gathering of supervisors in the welding department, adding
that he never heard Gregg say anything about getting rid of
union supporters. During his testimony, then Welding De-
partment Supervisor Kevin Rogers was asked if he recalled
whether there was a ‘‘gathering’’ of supervisors after the
election on October 21 or if he recalled seeing Ben Gregg
in the welding department talking to a number of supervisors
after the election, to which he answered, ‘‘No.’’ Rogers was
also asked whether, at that time or at any time, he heard
Gregg make a statement about MTD getting rid of union
supporters, or words to the effect that ‘‘A lot of union sup-
porters will not be around here next year,’’ to which he also
answered, ‘‘No.’’ Spot Welding Supervisor George Wade
testified that 15 to 20 minutes after the vote count on Octo-
ber 21 (and between 2:30–3 p.m.) he was not with a group
of about five supervisors in the welding department nor did
he talk to Ben Gregg after the vote count. Wade added that
he never heard Gregg say MTD would get rid of union sup-
porters or that even though he could not do anything about
the others, he could take care of the union supporters in his
department. Quality Control Foreman Robert Galey testified
that on October 21 the votes were counted between 5 and
5:30 p.m. and during the first 15 to 20 minutes following the
vote count he was not with Ben Gregg and several other su-
pervisors near the inspection cage in the welding department,
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 This allegation appeared in the first complaint issued on Decem-
ber 23, 1988, and resulting from the charge filed by Penny Robert-
son (Case 26–CA–12936) alleging only her unlawful suspension and
discharge. It also was one of those allegations initially dismissed by
me as a result of the Nickles Bakery motion.
16 Schuster remained in the hearing room and aided counsel
throughout the entire case. He had served as personnel manager at
Martin for 2 years, and reported directly to General Manager John
Rainone.
17 The handbook itself bears this date.
18 It is notable that on p. 6 of the handbook, under ‘‘4. A WORD
ABOUT UNIONS,’’ it is stated in part that
We also feel that direct, face-to-face dealings with your co-
workers and with any level of management are more beneficial
than paying a union to speak for you . . . [f]or these reasons,
we feel that a union is neither necessary nor desirable for our
company.
19 In their brief, counsel for MTD mistakenly cited T.R.W. Bear-
ings, 257 NLRB 442 (1981), as the prevailing authority on the sub-
ject. That case held that rules prohibiting employees from soliciting
nor was he there between 2:30 and 3 p.m. that day. Galey
added that following the election he never heard Gregg make
any kind of statement about MTD getting rid of union sup-
porters. In cross-examination, Galey further added that on
October 21 and after the election he had no conversation
with any supervisor, including Gregg, regarding the results of
the election and saw no supervisors discussing the election
in any part of the plant.
This 9(d) allegation poses a dilemma for me. The General
Counsel relies solely on the testimony of Quality Control In-
spector Davis, who I credit completely. According to Davis,
Gregg made his alleged remarks to a gathering of Super-
visors Wade, Rogers, Galey, and Emerson. Gregg denied the
remarks and the gathering, as do the other four supervisors.
I not only credit Gregg in this case, but three out of the four
other supervisors (Wade, Rogers, and Emerson). I do have
some doubts about Galey. All involved were current employ-
ees of MTD, and while it could be argued that the five su-
pervisors had a common protective interest, I can not con-
clude that they all lied in this instance. Also, I can not dis-
regard the preponderance of the evidence here. Perhaps
Davis was mistaken about the date or time. In any case, I
do not find a violation as alleged in paragraph 9(d) of the
complaint.
E. The Unauthorized Solicitation Rule
Paragraph 12 of the complaint alleges that on or about No-
vember 4, 1988, MTD, in its Employee Handbook and in its
General Plant Rules and Regulations, promulgated and, since
said date, has maintained the following prohibition rule, in
violation of Section 8(a)(1) of the Act:
Unauthorized soliciting of memberships, pledges, col-
lecting money, distribution of literature, written or
printed matter on Company premises or conducting any
other outside business, unless approved by the Com-
pany.15
The Employee Handbook (handbook) and the General
Plant Rules and Regulations (rules) were admitted into evi-
dence through the initial testimony of MTD’s personnel man-
ager at the Martin plant, James E. Schuster.16 According to
Schuster, the handbook became effective May 4, 1987,17 and
remains in effect.18 The topic of solicitation appears on page
12 of the handbook, and under the heading ‘‘Solicitation by
Employees’’ appears the following:
During work time, we expect each employee to be
occupied with his/her assigned responsibilities. Engag-
ing in the distribution of literature during work time or
in working areas, or soliciting interest or support of
other employees in any group, cause or product on the
work time of either employee is prohibited. It is of pri-
mary importance that no such activity interferes with
our daily operations.
Schuster also identified the plant rules, dated March 12,
1985, and indicated they had been in effect since said date
to the present time. Rule 27 (on p. 3) reads exactly as set
out in paragraph 12 of the complaint.
There are initially two curious aspects regarding the para-
graph 12 allegation. First, it is alleged that MTD promul-
gated the solicitation prohibitions in both the handbook and
the rules ‘‘On or about November 4, 1988,’’ when in fact
there is absolutely no evidence to that effect. The documents
themselves carry the dates of May 4, 1987, and March 12,
1985, and Schuster’s unrebutted testimony as the General
Counsel’s witness reflects they became effective on those
dates. Secondly, the language appearing in paragraph 12 of
the complaint is only found in the rules, not in both the rules
and handbook as alleged. It should be noted that originally,
paragraph 12 alleged only the ‘‘Employees Handbook,’’ but
was amended by the General Counsel during the hearing to
allege said language to be contained in both the handbook
and the rules. The handbook predates the first charge filed
by Robertson in these cases (November 30, 1988) by over
6 months and the rules (containing the actual language used
in par. 12) predate the first charge by over 3-1/2 years. I note
further that aside from the actual language of the rule, para-
graph 12 of the complaint speaks only of the promulgation
and maintaining the rule, and not of its enforcement, and in
his brief the General Counsel addresses only the maintenance
of the rule as being unlawful, although he does appear to
link employee Joe Brasfield with improper enforcement of
the rule through alleged disciplinary actions taken against
Brasfield for distributing union T-shirts. Brasfield was later
suspended and ultimately discharged in February and March
1989. The subject of Brasfield’s rule violations will be con-
sidered later herein, when the lawfulness of his suspension
and discharge are considered. For now, attention will be di-
rected only to the existence or maintenance of the rule, as
contemplated by the verbiage of paragraph 12 of the com-
plaint.
In Our Way, Inc., 268 NLRB 394 (1983), the Board re-
verted back to its holdings in Essex International, 211 NLRB
749 (1974), that rules using ‘‘working hours’’ are presump-
tively invalid because that term connotes periods from the
beginning to the end of workshifts, periods that include the
employees’ own time, whereas rules using ‘‘working time’’
are presumptively valid because that term connotes periods
when employees are performing actual job duties, periods
which do not include the employees’ own time such as lunch
and break periods.19 As the Board indicated in Our Way,
739MTD PRODUCTS
during ‘‘working time’’ are, together with rules prohibiting soliciting
during ‘‘working hours,’’ presumptively invalid. However, Our Way,
Inc., supra, specifically overruled T.R.W. Bearings, supra, in favor
of Essex International, supra. In any event, counsel’s reliance on
T.R.W. Bearings does not detract from the legitimacy of their argu-
ments because of the specific facts in this case. The bottom line is
what the employees were allowed to do, or what they understood
they could or could not do.
20 The solicitation rule set forth the handbook is presumptively
valid under Our Way, Inc., supra, and Essex International, supra,
and all counsel agree that it is not the subject of any alleged viola-
tion herein.
21 See Our Way, Inc., 268 NLRB at 395 fn. 6, quoting from Essex
International, supra. I again note that par. 12 of the complaint does
not allege the enforcement of the rule, only its promulgation and
maintenance. In his brief the General Counsel states that MTD did
not ‘‘clarify’’ the rule, and appears to argue that the rule was
discriminatorily applied to employee Joe Brasfield. As indicated ear-
lier, this subject will be discussed later herein when dealing with
Brasfield’s suspension and discharge. The fact remains that par. 12
of the complaint alleges that the promulgation and maintenance of
the rule alone constitutes a separate violation of Sec. 8(a)(1) of the
Act, and the matter has to be dealt with accordingly.
22 These allegations first appeared in the second complaint issued
May 3, 1989 (Case 26–CA–13124), which resulted from a charge
filed by the Union on April 11, 1989, alleging only the unlawful
suspension (on February 2, 1989) and discharge (on March 23,
1989) of employee Joe Brasfield. As indicated earlier, pars. 10(b)
and (c) were dismissed during the hearing without objection for lack
of evidence. Regarding pars. 10(a) and (d), I note that the General
Counsel does not mention these allegations in his brief.
23 In evidence is a written warning to Brasfield for ‘‘threatening’’
and ‘‘in-timidating’’ Jones. It is dated November 7, 1988, and signed
by Schuster and Brasfield’s Supervisor Ben Gregg. The warning
does not mention T-shirts, and on the employee’s signature line is
written ‘‘refused to sign.’’
24 There is no other evidence in the case which reflects that
Brasfield was given a written warning for passing out T-shirts.
Inc., supra, the governing principal is that a rule is presump-
tively invalid if it prohibits solicitation on the employees’
own time. Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945). I find that the rule involved here, in MTD’s plant
rules,20 is presumptively invalid as it prohibits soliciting and
distribution ‘‘on Company premises . . . approved by the
Company.’’ Given MTD’s open antiunion position, there is
every reason for the employees to initially assume that ‘‘ap-
proval’’ for the solicitation of union support or the distribu-
tion of union material at any time and anywhere at the plant
would be denied.
In considering whether or not the rule violated the Act,
one more step must be taken. Under Board law as I under-
stand it, although a rule may be presumptively or facially in-
valid, an employer may negate or cancel a violation by
showing, through extrinsic evidence, that the rule was com-
municated or applied in such a way as to convey an intent
clearly to permit solicitation or distribution during breaktime
or other periods when employees are not actively at work.21
In my opinion, this was done in this case. In general, judging
from the entire record, it does not appear that employees
were unduly restricted in there campaign for the Union. The
subject just was not an issue, until of course it appeared in
the first complaint. Promulgated in March 1985 as rule 27
of the plant rules, years later and during both union cam-
paigns, the rule does not appear to have been the source of
any controversy. The record reflects that union T-shirts, but-
tons, and pins were worn freely. Employee Penny Robertson,
perhaps the most active union supporter, was instrumental in
obtaining some 250 signed union authorization cards prior to
the 1987 election. Some of those employees were asked to
sign cards ‘‘at MTD.’’ Employee Ronald Rogers testified he
handed out union literature. Employee Joe Brasfield testified
that he passed out T-shirts in the breakroom prior to the
1988 election, and David Reid testified that he passed out
union literature twice outside the plant prior to the 1988 elec-
tion. The rule was virtually a nonissue during the hearing,
with few questions to witnesses regarding campaign restric-
tions, and absolutely no questions about the rule itself, or its
existence. I find that the rule was applied at MTD in such
way as to convey an intent clearly to permit union solicita-
tion or distribution during breaktime or lunchtime, and thus
I find no violation of the Act as alleged in paragraph 12 of
the complaint.
F. The Alleged Threats by Personal Manager Schuster
Paragraph 10(a) of the complaint alleges that Schuster, on
or about November 4, 1988, threatened an employee with un-
specified reprisals because of said employee’s union activi-
ties, and paragraph 10(d) of the complaint charges that on or
about February 9 and 28, 1989, Schuster threatened an em-
ployee with discharge because of said employee’s union ac-
tivities and sympathies.22 Employee Joe Brasfield was in-
volved in both allegations. The November allegation initially
began over a complaint of harassment and intimidation
against Brasfield by employee Mike Jones. Brasfield testified
that ‘‘around November, the latter part of November . . .
1988’’ he was called into Schuster’s office about the com-
plaint. Brasfield indicated that his Supervisor Ben Gregg was
also present, and that Schuster stated he ‘‘had been caught
passing union T-shirts out in the plant, and [he] had been
harassing and intimidating Mike Jones, and that this was
going in [his] record.’’ Schuster testified that he meet with
Brasfield in his office on November 7 regarding the Mike
Jones complaint, but denied that he said anything about re-
prisals to Brasfield because of his union activities. Schuster
was not asked specifically about any ‘‘T-shirt’’ remark, but
he did indicate that the subject of the Union came up be-
cause Jones’ complaint dealt, in part, about the fact that
Brasfield was ‘‘pressuring’’ Jones about the Union.23
Brasfield’s Supervisor Ben Gregg testified that Brasfield had
earlier been ‘‘written up for . . . passing out T-shirts in a
work area on worktime’’ on election day (October 21,
1988),24 and that employee Mike Jones had initially made
his complaint about Brasfield to him, and later on submitted
his formal (written) complaint. Gregg added that he took the
complaint to Schuster and told him what he knew of the mat-
ter. Gregg was asked if he was involved in anything else
with regard to the Mike Jones matter, to which he responded,
‘‘No.’’ Gregg was never specifically questioned about any
meeting in Schuster’s office on November 7. In his testi-
mony, Schuster did not mention whether or not Gregg was
present in his office on November 7 when he talked to
Brasfield. The incident between Brasfield and Jones appar-
ently occurred on November 4 and was a serious matter, as
Jones actually quit MTD over the matter, walking off the job
at the time of the incident. His written complaint to Gregg
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 A more expanded description of Brasfield’s actions and his be-
havior appear later herein when his suspension and discharge are
discussed.
26 Pars. 9(a), (b), and (c) of the complaint were withdrawn by mo-
tion of the General Counsel during the hearing because they dupli-
cated pars. 8(a), (b), and (c) of the complaint, which were delt with
earlier in this decision, together with par 9(d) of the complaint. Pars.
9(e), (f), and (g) appeared first in the second complaint and after the
second charge (Case 26–CA–13124) filed by the Union, on behalf
of Brasfield, on April 11, 1989, and alleging only his unlawful sus-
pension and discharge.
was mailed in. Jones’ subsequent request for his job back
was denied because of MTD’s policy of not rehiring employ-
ees that quit. I credit Schuster’s testimony here over that of
Brasfield, and find that the subject of union T-shirts never
came up in the November 7 conversation with Brasfield
about the Jones incident. Thus I find no threat of reprisals
by Schuster as alleged in paragraph 10(a) of the complaint.
Brasfield was cast in a similar mold as that of employee
Reid. As a witness, Brasfield came off as a rough and tough
individual, and the record reveals that he, as Reid, was a
bully, although his actions were not quite as crass as those
of Reid.25 His testimony was, at times, evasive and defen-
sive. His testimonial demeanor and his actions lead me to
discredit most of his significant testimony in this case. I fur-
ther note that the November 7 conversation between
Brasfield and Schuster came some 16 days after the October
21 election and it seems highly unlikely that Personnel Man-
ager Schuster would have brought up the subject of union T-
shirts, especially considering the seriousness of the Jones in-
cident, and its result.
The alleged threats of discharge by Schuster on February
9 involved another complaint about Brasfield by employee
Mary Boyd regarding a soap dispenser in a restroom.
Brasfield testified that ‘‘around January of 1989’’ he was
called into Schuster’s office ‘‘about harassing’’ Boyd, and
Gregg was also present, and later Boyd herself. Regarding
Schuster’s remarks, Brasfield testified as follows:
[H]e found out I was telling the truth about it, but he
still was going to put it in my record because Mary
Boyd—he said that Mary Boyd and I had had problems
before, and he told me the best thing for me to do was
start looking for me another job, because I had been
caught passing union T-shirts out, and I had harassed
Mike Jones, and I had been in the office over produc-
tion, and that my file was getting very thick and he was
going to have to do something with me.
Brasfield’s supervisor, Ben Gregg, testified that he was
present at the time but was never asked specifically what
Schuster said. The incident apparently occurred on February
9, 1989, and a written warning was issued to Brasfield at the
time. The warning is signed by Gregg and Schuster, and
above the employee’s signature space is written ‘‘Refused to
sign.’’ The warning came as a result of a complaint of ‘‘har-
assment’’ by Mary Boyd, also involving employees Russell
Busby and David Reid. Busby was also diciplined but ac-
cording to Gregg, Reid was not because it was determined
that he was not actually involved. The written warning does
not mention union T-shirts, and under the ‘‘Comments’’ sec-
tion, the following appears:
Any future violations of this plant rule or any other
plant rules will be grounds for a (5) day out of plant
suspension or dismissal from plant. This is your final
warning. Employee refused to sign but does understand
comments.
Mary Boyd testified that she was called into Schuster’s office
to explain what had happened, which she did and then left.
She was also not asked what Schuster said. During his testi-
mony, Personnel Manager Schuster acknowledged the written
warning given to Brasfield on February 9 in the personnel
office, and was asked if he said anything to Brasfield to indi-
cate that MTD intended to fire him because of his union ac-
tivity, to which Schuster replied, ‘‘Absolutely Not.’’ I credit
Schuster over Brasfield and thus find that there was no threat
of discharge on or about February 9, as alleged in paragraph
10(d) of the complaint.
Paragraph 10(d) also alleges a discharge threat by Schuster
to an employee on or about February 29, 1989. The briefs
filed herein make no reference to the allegation, or evidence
pertaining to it. Brasfield was suspended by Schuster for 3
days on February 28, 1989, for leaving the plant without per-
mission. This will be discussed later herein. Brasfield
claimed that when Schuster suspended him, he told him that
the next step was to ‘‘get him’’ for being late and told him
to find another job. Schuster denied the remarks. Assuming
this to be the alleged violation, I would of course credit
Schuster over Brasfield, and thus find that the remark was
not made. Thus, I shall recommend that paragraph 10(d) of
the complaint be dismissed.
G. The January (1989) Allegations Regarding
Supervisor Gregg
Paragraphs 9(e), (f), and (g) of the complaint involve al-
leged 8(a)(1) violations by Supervisor Gregg ‘‘in or about
January 1989.’’26 Paragraph 9(e) alleges the interrogation of
an employee regarding his union activities and sympathies.
Paragraph 9(f) alleges that Gregg created the impression
among employees that their union activities were being kept
under surveillance, and Paragraph 9(g) alleges threatening an
employee with unspecified reprisals because of that employ-
ee’s union activities and sympathies. The General Counsel
relies solely on the testimony of employee Brasfield in sup-
port of the allegations. Brasfield had passed out union T-
shirts in the breakroom on the day of the election (October
21) and had later taken the remaining T-shirts to his work
station. During his testimony Brasfield was asked if Schuster
or any other ‘‘company official’’ spoke to him about having
passed out union T-shirts, and Brasfield replied that ‘‘around
February’’ of 1989, Gregg approached him and said that he
wanted to talk to him but that he ‘‘didn’t want it to go any
further.’’ According to Brasfield, Gregg then stated that ‘‘he
had heard that [employee] Ronald Rogers and I, was trying
to organize a union.’’ Brasfield testified he then asked Gregg
who had told him that, and Gregg refused to tell him, but
then stated, ‘‘I know you’re for the union, because you wore
a union T-shirt, and I know Ronald is for the union . . . [i]t
just don’t look too nice for you and Ronald Rogers sitting
741MTD PRODUCTS
27 In testimony, employee Rogers acknowledged that he supported
the Union, was on the union organization committee, wore as many
as five union buttons at a time, handed out union literature, and
wore a union T-shirt on the day of the election.
28 Supervisors or foremen under Gregg included Barry Wilson,
Mitchell Whitney, Kevin Rogers, and George Wade.
29 As indicated earlier, Brasfield denied that he passed out the T-
shirts in the pressroom where he worked but conceded he had earlier
passed them out in the breakroom and brought the remaining T-
shirts to the pressroom. MTD’s Employee Handbook prohibited the
‘‘distribution of literature’’ in ‘‘working areas.’’
30 My reasons for generally discrediting Brasfield in this case ap-
pear earlier in this decision.
31 Galey’s name is misspelled ‘‘Galley’’ in the complaint.
32 The allegations in par. 11 first appeared in third (and last) com-
plaint (the amended consolidated complaint) issued on June 6, 1989,
resulting from the charge filed by employee David Reid on April 28
alleging only his unlawful discharge on March 23. These allegations
were among those I had initially dismissed as a result of the motion
by counsel for MTD under Nickles Bakery, 296 NLRB 927 (1989).
33 In cross-examination, Rogers testified that he told ‘‘some peo-
ple,’’ including Personnel Director Schuster, that he had become un-
happy with the Union.
34 The transcript, Vol. III, p. 324, recites the name ‘‘Miller,’’
which is incorrect, and the transcript is changed to reflect the name
to be Steve Melton.
35 At the end of his direct examination, Rogers was again asked
when the conversation took place, and he again answered that it was
‘‘right after the election last year [1988].’’
around talking to each other.’’27 Brasfield indicated he then
told Gregg, ‘‘Well, if it means . . . if that’s what it takes
for me to keep my job, I won’t be hanging around Ronald
Rogers or talking to him.’’ According to Brasfield, Gregg
then ‘‘smiled and he let [him] go back to work.’’
As indicated earlier, Ben Gregg had worked for MTD
some 18 years, the last 5-1/2 years of which were at the
Martin, Tennessee plant. Gregg was superintendent of fab-
rication, having direct responsibility over the welding depart-
ment and the pressroom. He answered only to General Man-
ager John Rainone and Factory Manager Dave Gido.28 Gregg
testified that the only union activity he ever observed by
Brasfield was his wearing of a union T-shirt and passing
them out on the day of the election. It was Gregg who
claimed that Brasfield had passed out the T-shirts after lunch
and in the pressroom during working time. Gregg reported
this to Personnel Manager Schuster, who in turn verbally
warned Brasfield.29 Gregg testified that in January 1989
Brasfield came to him and indicated that there was a ‘‘rumor
going around . . . that . . . he was trying to stir up the
union.’’ According to Gregg, Brasfield wanted him to know
the rumor was not true. Gregg testified that he told Brasfield
he had not heard such a rumor, that it did not matter to him,
adding, ‘‘Whatever you want to do, it’s your business.’’ Ac-
cording to Gregg, this was the sum and substance of the con-
versation, and Gregg denied that he mentioned Brasfield’s
hanging around with Ronald Rogers or saying anything that
would indicate that Brasfield’s job was in jeopardy because
of his union support.
The complaint places the conversation between Brasfield
and Gregg ‘‘in or about late January.’’ Brasfield places it
‘‘around February,’’ and Gregg places it ‘‘in January.’’ No
matter when it took place, I credit Gregg’s version over that
of Brasfield, and thus find no 8(a)(1) violations as alleged
in paragraphs 9(e), (f), and (g) of the complaint.30
H. The February (1989) Allegations Regarding
Supervisor Galey31
The 8(a)(1) allegations regarding Supervisor Robert Galey
appear in paragraph 11 of the complaint.32 Paragraph 11(a)
alleges that Galey, ‘‘In or about February 1989,’’ interro-
gated an employee regarding his union membership, actives
and sympathies. Paragraph 11(b) alleges that Galey, ‘‘In or
about February 1989,’’ created an impression among employ-
ees that their union activities were under surveillance, and
unlawfully requested an employee to give written assurance
that he would not engage in union activities in the future.
Employee Ronald Rogers came to work at MTD in Octo-
ber 1986. His present position was quality control inspector
in the welding department, and his immediate supervisor was
Dick Roll. He was a strong and outward union supporter
until after the election (October 21, 1988), when he pro-
claimed that he would no longer support the Union.33 Rogers
testified that ‘‘right after the election . . . the week after the
election,’’ Supervisor Robert Galey spoke to him about the
Union in the ‘‘tear down room.’’ Rogers related that he, em-
ployee Steve Melton,34 and Galey were discussing ‘‘job se-
curity,’’ and Galey ‘‘asked us, you know, about it [the
Union],’’ to which they replied, ‘‘No, that we weren’t going
to get involved in it [the Union] anymore.’’35 According to
Rogers, Galey then stated that he could believe Melton but
not him because he had been involved with the Union for
2 years, and Galey then asked him to put it in writing. Rog-
ers testified that the following day Galey asked him if he had
put it in writing, to which he replied, ‘‘Well, I will,’’ and
he then and there wrote down ‘‘I [Ronald Rogers] guarantee
that I will never be involved in the UAW election again in
any form or in any fashion,’’ and gave it to Galey. Accord-
ing to Rogers, a short time later (the same day) Personnel
Director Schuster came to him with the written statement and
told him that he ‘‘didn’t have to do that, that [he] didn’t
have to write that out,’’ and asked Rogers to take the state-
ment back. Rogers related that he then refused to take the
written statement back and asked Schuster to put it in his
personnel file. According to Rogers, Schuster then left with
the statement.
Robert Galey had been a quality control foreman at MTD
for 4 years, where worked in the ‘‘welding tear down
room.’’ He was Ronald Rogers’ supervisor and had known
him for 3 years. Galey testified that prior to the October 21,
1988 election he knew Rogers to be for the Union from
‘‘buttons he wore on his hat, and conversations . . . [he] had
with him in the past.’’ According to Galey, ‘‘About two days
after [the election]’’ he walked in on a conversation between
Rogers and one Steve Melton who then left, and thereafter
he and Rogers continued the conversation. Galey testified
that Rogers told him ‘‘he wouldn’t have anything else to do
with the union again, because him and his wife had just
about gone through a divorce over this, and over his activi-
ties.’’ Galey indicated he then just ‘‘sat there with a negative
look on my face and I didn’t say anything,’’ whereupon
Galey asked if he believed him, to which he (Galey) replied,
‘‘No.’’ According to Galey, Rogers then ask him what he
could do to make him believe it, to which he replied, ‘‘In
a joking manner,’’ ‘‘Put it in writing.’’ Galey denied that he
initially asked Rogers to put it in writing, and denied ever
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 Rogers’ testimony would place Melton there when the initial
conversation between he and Galey took place. Galey’s testimony
would have Melton leaving before it took place.
37 The charge by the Union on behalf of Brasfield was filed on
April 11, 1989 (Case 26–CA–13124), and based on the charge a sep-
arate complaint was thereafter issued on May 3, 1989.
38 According to Brasfield, appearing on the T-shirts were the
words ‘‘Be A Winner, MTD.’’ Neither Harrington or McDonald tes-
tified in the case.
39 There is no violation alleged in the amended consoliated com-
plaint regarding Schuster’s alleged remarks about the T-shirts, and
no written warning was given to Brasfield.
40 On cross-examination Brasfield conceded that he knew it was
against MTD’s rules to distribute things on working time in working
areas. David Reid, who I do not credit, testified that Brasfield did
not hand out any T-shirt in the pressroom.
mentioning it to Rogers again, but related that the following
day, Rogers proclaimed, ‘‘I’ve got something for you,’’ and
then handed him the written paper, which he put in his pock-
et and later gave to Personnel Director Schuster, explaining
how the paper had come about. Although Schuster and em-
ployee Steve Melton testified in the case, neither were ques-
tioned about the incident.36
I credit Rogers’ version of the incident over that of Galey.
Rogers’ testimony appeared thoughtful and straight forward.
His demeanor convinced me that he was telling the truth.
Galey, on the other hand, appeared angry, and his rapid fire
nonreflective answers and absolute air lead me to conclude
that in significant areas of his testimony, he was unworthy
of belief. I find that several days after the October 21 elec-
tion, Galey, with full knowledge of Rogers’ union support,
approached Rogers and another employee and asked
‘‘about’’ the Union, and that it was Galey who initiated the
request that Rogers put his antiunion turnabout in writing.
The fact that Rogers had disavowed the Union is, in my
opinion, of no consequence here as the test of a violation is
not the subjective belief of the employee, but whether
Galey’s remarks could have reasonably been interpreted as
creating an impression of surveillance. The complaint alleges
the violations to have occurred ‘‘In or about February
1989,’’ yet the testimony of Rogers and Galey clearly places
the incident from 2 to 7 days after the October 21, 1988
election. There was no motion to amend the paragraph 11 al-
legations during the hearing, although at the end of the case
the General Counsel did make the standard motion to ‘‘make
the pleadings conform to the proof,’’ which I granted but
limited to ‘‘minor date variances, and where the testimony
is explicit, [in] that it refers to a definite allegation in the
Complaint.’’ These allegations first appeared in the amended
consolidated complaint issued on June 6, 1989, based upon
employee Reid’s charge of his unlawful discharge filed on
April 28, 1989. Thus, it could be argued that the Act’s 6-
month limitation period in Section 10(b) requires dismissal
of the allegations. This argument was in effect made by
counsel for MTD in their Nickles Bakery motion during the
hearing, and again in their posthearing brief. Section L of
this decision deals with the Nickles Bakery issue, wherein the
ultimate disposition of these Galley allegations (pars. 11(a)
and (b) of the complaint) will be recommended dismissal.
I. The Written Warnings, Suspension, and Discharge
of Brasfield
1. Testimony and evidence
Paragraph 13 of the complaint alleges that MTD issued
written warnings to employee Joe Brasfield on November 4
and February 9 and 28, 1989, in violation of Section 8(1)
and (3) of the Act. Paragraphs 14 and 15 of the complaint
allege the suspension of Brasfield on February 28, 1989, and
his discharge on March 23, 1989, in violation of Section 8(1)
and (3) of the Act.37 Brasfield was hired by MTD in Decem-
ber 1985 as a press operator on the second shift. After a
year, he changed to the first or day shift (6 a.m. to 2:30
p.m.) under Supervisor Ben Gregg. In general, MTD’s reason
for discharging Brasfield were multiple rules violations, in-
cluding leaving work without permission, threatening or in-
timidating other employees, and careless workmanship, in-
cluding the damaging of a die in a press by a ‘‘double hit,’’
occurring twice in one shift.
Brasfield testified that his outward support for the Union
came on the day of the election (October 21, 1988) when he
wore a union T-shirt and passed them out in the breakroom
on his lunch hour. According to Brasfield, one other em-
ployee was passing out union T-shirts that day, and on the
way to his lunchbreak he observed an MTD supervisor
named Bill Harrington passing out company T-shirts ‘‘in his
department . . . on the assembly line,’’ and later in the
breakroom where he gave him ‘‘a real dirty look.’’ Brasfield
added that Harrington passed out the company T-shirts to ‘‘a
few girls around in the plant,’’ including one Sheila McDon-
ald.38 Brasfield testified that after his lunchbreak was over
(11:30 a.m.) he took the remaining T-shirts to his work sta-
tion and laid them down beside his machine (press), where-
upon Supervisor Barry Wilson came up to him and said,
‘‘Don’t you know you can get fired for . . . having those
T-shirts.’’ According to Brasfield, soon thereafter Supervisor
Gregg asked him what he was doing with the T-shirts, and
he replied that he was going to leave them there until his
next break and then take them to his locker, and Gregg then
instructed him to take them to his locker now, which he did.
Brasfield testified that on his way back he met Gregg and
Personnel Director Schuster, who indicated that he could
‘‘get dismissed for having those T-shirts, by it being [sic]
that close to election time.’’ Brasfield testified that he re-
sponded, ‘‘No, I didn’t know,’’ and Schuster then stated that
since he did not know, he would let him go this time.39
Brasfield denied handing out T-shirts in any area other than
the breakroom.40
Brasfield testified that in late November (1988) Gregg
‘‘pulled’’ him off the job and they went to Schuster’s office
where he was informed that employee Mike Jones had filed
a complaint about him for ‘‘harassing and intimidating
[Jones] on the job,’’ which resulted in Jones quitting his job.
Brasfield related that Schuster showed him a letter Jones had
written about the matter, part of which he denied, explaining
that he had only warned Jones that the Company did not like
him wearing a union T-shirt and was ‘‘disappointed’’ in him.
According to Brasfield, Schuster then said that he had been
‘‘caught passing union T-shirts out in the plant, and [he] had
743MTD PRODUCTS
41 As indicated earlier, no written warning was given to Brasfield
for passing out T-shirts, but Brasfield did receive a written warning
on November 7, 1988, for harassing Mike Jones.
42 David Reid, who I have discredited in this case, earlier testified
that everyone in the press department had made double hits, and that
some had made a lot of them, including David Tibbs, Danny Jones,
David Helms, Jasen Kemp, and Randy Morgan. Reid indicated that
Tibbs once put ‘‘slugs’’ in dies delibertatey to break the pins so
there would be down time. Tibbs, Jones and Helms did not testify
in the case. Kemp and Morgan did testify, but were not asked about
double hits.
been harassing and intimidating Mike Jones, and that this
was going in [his] record.’’41
Brasfield testified that ‘‘around January 1989’’ he was
called into Schuster’s office regarding a complaint of harass-
ment by employee Mary Boyd, and that Schuster again
brought up his passing out of union T-shirts. The Mary Boyd
incident was over a soap dispenser in the ladies restroom,
and Brasfield denied being involved. Brasfield related that
the following day he was again called into Schuster’s office,
and also present were Gregg and Mary Boyd. According to
Brasfield, Schuster stated he had investigated the matter and
determined the he was not involved but it was still going to
be put in his record because ‘‘Mary Boyd and [he] had had
problems before . . . and the best thing for [him] to do was
start looking for . . . another job, because [he] had been
caught passing union T-shirts out, and [he] had harassed
Mike Jones, and [he] had been in the office over production,
and that [his] file was getting very thick and he was going
to have to do something with [him].’’
Brasfield testified that he was suspended in 1989 ‘‘around
the last of February or the first of March.’’ Brasfield indi-
cated that on a Saturday he had reported for work at 6 a.m.
and at about 10:30 a.m. they ran out of material to run
through the press and Pressroom Foreman Barry Wilson said
he could either leave or stay if there was cleanup work to
do. Brasfield related that he told Wilson that he would like
to leave if he had a choice, but Wilson then told him not
to leave until he checked with one Tim Dawson regarding
cleanup work in the toolroom department. Brasfield testified
that Wilson did not get back to him, and thus at about 11
a.m. he approached Wilson who stated that he was free to
go home, and he then clocked out. Brasfield indicated that
the following Monday he was late to work, arriving around
7:30 a.m., and Wilson asked him why he was late, to which
he replied that he overslept. According to Brasfield, Wilson
replied, ‘‘Well, we all do that sometimes.’’ Brasfield testified
that at about 1:30 p.m. that day he was called into Personnel
Director Schuster’s office, where, in the presence of Ben
Gregg (and later Wilson), Schuster accused him of leaving
the plant the previous Saturday without permission and fail-
ing to return. When Wilson arrived, he verified that Brasfield
did not have permission to leave, which Brasfield claimed he
contested. Brasfield related that Schuster believed Wilson,
who recommended a suspension, and Schuster then sus-
pended him for 3 days. Brasfield testified that he did not get
any kind of suspension notice, but that Schuster again men-
tioned the union T-shirts, together with the Mike Jones and
Mary Boyd incidents, and further added that the next step
was to ‘‘get’’ him for being late, advising him to find an-
other job somewhere else. Brasfield testified that Wilson then
escorted him out of the plant and on the way out he asked
Wilson why he did not tell the truth, to which Wilson replied
that he ‘‘was sorry,’’ and suggested that he tell the other em-
ployees that he just took a few days off to take care of some
business. Employee David Reid testified that Brasfield was
not asked to stay, and thus went home. He conceded that he
was not present when Wilson talked to Brasfield. As earlier,
I again discredit Reid’s testimony.
Brasfield was actually discharged on March 23, 1989. He
testified that on the day before (March 22, his last day of
work), at about 9:30 a.m. parts kept sticking on the top of
the die at his station on the machine (press) and he did not
see a sticking part, and when he put another part in the press
made a hit and broke some pins in the die. This resulted in
down time while the die was being fixed. Brasfield related
that after the die was fixed his Supervisor Barry Wilson told
him that the next time a part stuck to the die, he should no-
tify him. Brasfield testified that they again started operating
the press and again parts kept sticking to the top of the die
‘‘real bad,’’ and he thus told the other operators of the press
to stop operations, and he then went to Wilson who told him
to go ahead and run the press until breaktime when he would
have the die polished. Brasfield related that again a part
stuck but they ‘‘caught it in time’’ and no damage was done,
adding that during the 11 a.m. break the die was fixed (pol-
ished). According to Brasfield, later that day he was ap-
proached by Supervisor Mitchell Whitney who asked him
why he had allowed a bad hit to occur twice, to which he
replied, ‘‘I just overlooked the part . . . it was just an honest
mistake that I just couldn’t help, I overlooked . . . didn’t see
it,’’ further explaining to Whitney that he was not ‘‘drunk’’
or ‘‘high,’’ and that he was in his ‘‘right mind.’’ Brasfield
indicated that Whitney then stated, ‘‘Well, I believe you,’’
and told him to go back to work. Brasfield testified that the
following morning at 8:30 a.m. Ben Gregg came and took
him to Schuster’s office, whereupon Schuster discharged him
‘‘because I had made two bad hits on the machine.’’
Brasfield indicated he tried to defend himself, but that
Schuster told him to ‘‘shut up.’’ Brasfield related that in the
past ‘‘bad hits’’ had been made by Ben Gregg, Mitchell
Witney, and one Opal Thorpe, all of whom were still at
MTD.42
At this point, a description of MTD’s press operations
would be in order. From Brasfield’s testimony, and other tes-
timony and evidence in the case, it appears that MTD oper-
ated and maintained several sizes of presses, the largest of
which was the 500-ton press, a large free-standing machine
with four operators working as a team, with two standing on
each side. The 500-ton press has four dies, one for each op-
erator. Each die has a top and bottom part, attached to the
top and bottom of the press. The cycle begins when an oper-
ator’s helper runs a bare piece of steel through oil and hands
it to the lead or first operator, who places it on top of the
bottom part of his die. Each operator has his own press acti-
vation button and when each operator has his piece in place,
he pushes his activation button. When the last operator to
ready his piece pushes his button, the top part of the press
(containing the top parts of the four dies) comes down on
the metal below it with great speed and force, and the metal
piece(s) are stamped out, after which the top of the press
rises back up to its peak and stops. At full operation, there
is metal being stamped out on each die. The piece is fully
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 Jones initially testified that he left MTD in August 1988, but
other testimony and evidence places his departure in late October
1988, after the October 21 election, and on or about October 26,
1988.
44 Jones was not rehired. MTD had a policy of not rehiring em-
ployees that quit.
45 The statement was admitted into evidence and is undated. It re-
cites that on October 26, 1988, Jones was ‘‘harassed’’ by Brasfield
to such an extent that he became ‘‘so upset’’ and ‘‘afraid,’’ and thus
quit. Jones testified that on the same day as the statement, he also
filled out a complaint form to go before the the review board in an
attempt to get his job back. This form was also admitted into evi-
dence, is undated, and uses the word ‘‘harassment.’’ According to
Jones, he inquired about his job and the review board action on sev-
eral days thereafter, but never got any response, and just ‘‘gave up.’’
46 In yet later cross-examination, Jones denied that he knew this.
47 Wade did not testify in the case.
stamped out at the fourth operator’s station on the press,
whereupon it is stacked and later checked by an inspector.
During normal operation, after the stamping process, the
piece is sitting on the bottom die and is loosened by air feed
through an air hose under each bottom die. The operator then
takes the piece and places it on the next die to his left or
across from him. However, on occasion the piece will stick
to the top die, and when this die cycles up and stops, the
operator must remove it before the press is activated to
stamp down again on another piece, or the result will be the
stamping of two pieces at one time, a ‘‘double hit.’’ A dou-
ble hit not only results in the scraping of both pieces, but
more seriously the damaging of the die. The die then has to
be removed from the press and taken to another department
for repair, resulting in down time for the press. A ‘‘bad hit,’’
as opposed to a double hit, is less serious and would occur,
for example, when an operator places a piece unevenly on
the bottom die. Normally, there is no damage to the die, al-
though the piece does have to be scraped.
The day of Brasfield’s two double hits, he was at the last
(fourth) position on the press on a 500-ton press running
‘‘hitch plates,’’ which Brasfield conceded had a tendency to
stick, requiring more attention. Brasfield also conceded that
pieces were sticking ‘‘on and off’’ that whole day, and fur-
ther conceded that he knew of no other employee who had
had two double hits in one shift.
Mike Jones testified as a former employee at MTD where
he had worked in the pressroom from May 1985 to late Oc-
tober 1988 when he voluntarily quit.43 Jones testified that on
a Wednesday morning at 7:30 a.m. employee Brasfield told
him ‘‘to watch [his] step, they’re out to try to get rid of
[him].’’ Jones, who had apparently displayed support for
both the Union and MTD, took this to mean that either MTD
or certain other employees were out to get him, adding that
he had heard a rumor to this effect from one other person
in the plant, whose name he could not remember. Jones testi-
fied that after Brasfield made the statement to him he went
to his Supervisor Ben Gregg and told Gregg that he ‘‘was
going back there to tell Joe Brasfield to take his union and
shove it up his ass.’’ According to Jones, Gregg made no re-
sponse and he then walked off his job, left the plant and
went home. Jones testified that several hours later he re-
turned and talked to Plant Manager John Rainone and Per-
sonnel Director Schuster in an attempt to get his job back,
and Schuster told him that if he had been there, he would
have tried to talk him out of walking off the job.44 Then, ac-
cording to Jones, his Supervisor Ben Gregg told him to go
home and write a statement about the incident and bring it
back ‘‘to see about getting [his] job back.’’ Jones indicated
he did this and returned 2 days later with the written state-
ment and gave it to Gregg, who then informed him that the
statement ‘‘wasn’t good enough.’’ Jones related that, with
the help of Gregg, he then wrote out another statement which
‘‘was supposed to have been helping [him] to get [his] job
back at the plant, but . . . it was helping me to hurt Mr. Joe
Brasfield.’’45 According to Jones, Gregg told him he was
going to put the statement in his file ‘‘where it was going
to be locked up where Joe Brasfield wouldn’t see it.’’
During the Board’s investigation, Jones had given an affi-
davit wherein he stated, ‘‘I told Ben Greg, my supervisor, I
was quitting because Joe Brasfield and others told me that
the company was out to get me because I was for the
union.’’ Jones acknowledged the statement as being true, but
again indicated that beside Brasfield, there was only one
other person that had made such a statement to him, which
was prior to Brasfield’s remarks, and that he could not re-
member the name of the person. The affidavit also states the
Brasfield did not harass him, and Jones indicated that the
statement was true. During cross-examination, Jones con-
ceded that when he walked off the job, he knew that MTD
had a policy against rehiring employees that quit.46 He also
conceded that in truth, Brasfield had been giving him a hard
time because he had been wearing a ‘‘Vote No’’ button
which he finally took off, and then wore a union T-shirt on
the day of the election, after which Brasfield told him he was
going to be fired because of the T-shirt.
In testifying, Jones appeared as a bitter, hurt, and angry
individual. His testimony, in great part, was either uncertain,
disjointed, or inconsistent. At various times he flatly refused
to answer questions. It was difficult to tell whether he was
motivated by anger directed at Brasfield, MTD, or himself.
In any event, Jones was not a creditable witness.
Billy Summers testified as a former employee of MTD,
from October 1985 to approximately January 1989, over a
year of which was working in the press room. Summers indi-
cated that on occasion he had seen ‘‘double hits’’ occur, cit-
ing ‘‘human elements’’ and having ‘‘just a bad day.’’ Sum-
mers testified that he, himself, had a double hit, but not on
the 500-ton press that ran hitch plates, where each of the
four operators had to manually insert the metal and take it
out. Summers conceded that in the hitch plate situation, each
member of the crew ‘‘ought to be watching what’s hap-
pening.’’ Summers related that on one occasion employee
Terry Wade, who ‘‘didn’t know what he was doing,’’ ran a
‘‘ram adjuster’’ too low, causing down time on a press of
at least one shift. Summers added that when he left MTD,
Wade was still working there.47 However, Summers testified
that he knew of no case where anyone had made two double
hits on a hitch plate in one shift.
John Rainone testified as the general manager of the MTD
plant in Martin, Tennessee since 1984, when the plant was
built. As such he was present during the union election on
July 30, 1987, and on October 21, 1988. Rainone confirmed
that there were no charges filed, and no objections filed by
the Union after the first election, adding that there were ob-
jections filed after the second election, which were subse-
745MTD PRODUCTS
48 Sec. 9 of the Employee Handbook establishes the employee re-
view board. It dictates that the seven members are chosen by the
personnel manager (Schuster) from ‘‘all departments and job classi-
fications throughout the organization,’’ who shall serve up to one
year. The complaining employee selects three from the list of seven
‘‘to sit on his or her panel.’’
49 The panel members who signed the results were Winston Sut-
ton, Steve Melton, and Chris Olds. Rainone signed as concurring
with the review board’s decision. Steve Melton was one of the six
named employees which Rainone indicated more outwardly sup-
ported the Union than Brasfield, Robertson, or Reid. The Review
Board’s decisions regarding both Brasfield and Reid were admitted
into evidence. Reid’s will be discussed later herein. In admitting the
decisions, their purpose and use was limited to reflect the review
board action taken, as part of the discharge process only. Their opin-
ions and results will not be used in my final determination as to
MTD’s true motivation in the discharges of Brasfield or Reid.
50 At the time, hitch plates were being run through the press and
according to Rainone, at the rate of 306 per hour, the normal rate
being between 320 to 325 an hour. As described by Rainone, a hitch
plate is the piece of metal that ‘‘ties the upper frame of a riding
lawn mower together in position.’’
51 Schuster was called as the General Counsel’s first witness and
later, as an MTD witness, when he gave expanded and more detailed
testimony. The State Department of Employment Security separation
notice, signed by Schuster on March 22, 1989, recites, under cir-
cumstances of the separation, ‘‘multiple rules violations—not suited
for industrial work.’’ According to Schuster, Brasfield was awarded
unemployment compensation after a hearing.
52 The Boyd incident involved alleged comments by Brasfield to
janitor Mary Boyd about soap in the ladies bathroom. Boyd testified
in the case and her testimony will be discussed later herein. The in-
cident also involved employee Russell Busby who, according to
Schuster, implicated Brasfield and who was also given a written
warning regarding the matter. Busby did not testify in the case. A
typed summary of Boyd’s complaint, including the results of an in-
vestigation about the matter (occurring on February 8, 1989), were
admitted into evidence and reflect that Busby related he was trying
Continued
quently withdrawn. Regarding terminations, Rainone testified
that first there would be an investigation by Personnel Man-
ager Schuster and the supervisors ‘‘in the area,’’ after which
he, Schuster, and one Mike Murray (the vice president for
employee relations in Cleveland, Ohio) would confer, and if
the three agreed, the termination would take place. Regarding
the three terminations in this case (Brasfield, Robertson, and
Reid), Rainone indicated that the above procedure was used,
adding that he personally did not conduct any investigation
or talk to the three individuals terminated, and his decision
was based on Schuster’s recommendation and ‘‘the facts of
the investigation as presented.’’ Rainone testified that at no
time did the union activities of the three individuals come
up, although he did know that Robertson had passed out
union literature once at the gate and that Brasfield had worn
a union T-shirt on the day of the election, as did ‘‘about 35
percent of the plant.’’ Rainone added that he knew of no
union support by Reid. According to Rainone, there were at
least six other employees who were more active or outspoken
supporters of the Union than Brasfield, Robertson, or Reid.
Regarding the reasons for Brasfield’s termination, Rainone
testified as follows:
Mr. Brasfield, again, had several rules violations in his
file. The ones that I recall are distributing materials in
the work place on working hours, leaving work without
permission during regularly scheduled working hours,
intimidating fellow employees. And the final straw was
having two double hits on the same job within a very
short period on one shift.
Rainone Testified that MTD established an employee review
board to hear appeals of employees who feel that they have
not received fair treatment in the administration of discipline.
The review board consists of seven named employees, from
which the disciplined employee can pick three who would
handle (or sit on) the review, after which they would make
a written recommendation to Rainone, who could either fol-
low or reject the recommendation.48 Brasfield and Reid used
the the review board (and Robertson did not). Brasfield’s re-
view board results reads as follows:
The employee review board met on March 23, 1989, at
the request of Joe Brasfield. The employee review
board unanimously agreed that the company acted in
good faith in the termination of the employee. The re-
view board took into consideration every aspect of the
employee’s dispute with the company. Upon evaluation
of the employees records and discussing the problem
with the employee and his fellow employees, we felt it
was a fair decision.49
In testimony, and through a series of photographs and a
video tape of the 500-ton press Brasfield was working at dur-
ing the shift when two double hits occurred at his station
(and on his die), Rainone described in great detail the work-
ings of the press and the action (or inaction) of Brasfield in
causing the double hit. Rainone knew of no other employee
who ever had two double hits during the same shift, and con-
cluded his testimony regarding the matter as follows:
The situation, having a double hit after being warned
of problems with the press, and being warned after hav-
ing an initial double hit during the day which required
an hour and a half of down time to fix the die, and then
immediately thereafter having a second hit shortly after
the die was fixed and we were back in operation, war-
ranted the discipline.50
James Schuster became the personnel manager at MTD’s
Martin plant in September 1987. Schuster testified that it is
he who decides what constitutes the appropriate level of dis-
cipline for violations of the plant rules, including making the
final recommendation to discharge an employee. During his
initial testimony, Schuster related that Brasfield was dis-
charged for ‘‘multiple rule violations, the most recent of
which was careless workmanship,’’ citing Brasfield’s double
hits on the press.51 Schuster conceded that there had been
other employees with double hits, but none ‘‘that close to-
gether on the same day after being warned that many times.’’
He also conceded that between May 1, 1987, and November
17, 1989, and to the best of his knowledge, no other em-
ployee had been disciplined for misuse of a press, including
bad hits or double hits. Schuster testified that prior to
Brasfield’s two double hits, he had ‘‘a series of rules viola-
tions in his file, [and] and had been warned on several occa-
sions that future rules violations could lead to discharge.’’
Schuster indicated that among these ‘‘series’’ of violations
were distributing union T-shirts and harassing employee
Mary Boyd.52 Brasfield was given a written warning on Feb-
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to aggravate Boyd by stating to her ‘‘How about the soap in the girls
bath room?,’’ and further reflects that Busby admitted ‘‘he put’’
Brasfield up to saying the the same thing to Boyd.
53 Under the ‘‘Comments’’ section of the warning, the following
appears:
Any future violations of this plant rule [# 11] or any other plant
rules will be grounds for a 5 day out of plant suspension or dis-
missal from plant. This is your final warning. Employee refused
to sign but does understand comments.
A summary of the results of an investigation over the Boyd com-
plaint reflects that Brasfield admitted he had ‘‘run in’s’’ with boyd
before.
54 The written warning to Brasfield regarding the Jones incident
was alleged as a violation of Sec. 8(a)(1) and (3) of the Act in par.
13 of the third (and final) amended consolidated complaint. The alle-
gation did not appear in the second complaint (Case 26–CA–13124)
issued May 3, 1989, upon the Union’s charge on behalf of Brasfield
alleging only his improper suspension and discharge (on February 28
and March 23, 1989). The November 7 written warning, under ‘‘Em-
ployee’s Explanation,’’ recites that Brasfield ‘‘did not intentionally
harass anyone’’ and was ‘‘just joking’’ with Jones. It was signed by
Gregg and Schuster. Brasfield refused to sign the warning. Schuster
testified that MTD has a ‘‘no rehire’’ policy regarding employees
that quit, and sticks to it.
55 This suspension was alleged as a violation of Sec. 8(a)(1) and
(3) of the Act in the initial charge filed by the Union on behalf of
Brasfield on April 11, 1989, and was contained in the resulting (sec-
ond) complaint issued May 3, 1989. It appears in par. 14 of the
(third and final) amended consolidated complaint.
56 This written report was a one page type memo ‘‘TO: FILE,’’
dated February 28, 1989, with the heading ‘‘NAME: JOE
BRASFIELD,’’ and signed by Schuster.
57 The written discharge notice indicates a violation of plant rule
16 (careless workmanship), and also notes that during the discharge
Brasfield stated, ‘‘Let me shake your hand, I don’t know what took
you so long to fire me.’’
58 Other evidence in the case establishes the date to be Saturday,
February 25, 1989.
ruary 9, 1989, as a result of the Boyd incident.53 Schuster
testified that on November 7, 1988, Brasfield was issued a
written warning for ‘‘threatening and intimidating’’ employee
Michael Jones. Schuster was advised initially about the mat-
ter by Supervisor Ben Gregg. Jones, whose testimony is
summarized earlier, had walked off the job and was later un-
able to get his job back because of MTD’s policy of not re-
hiring employees that quit.54 Schuster testified that he talked
to Jones about the matter, who stated that on the day he quit,
Brasfield had told him he had better watch his step as the
Company was out to get him. According to Schuster, Jones
further related that he could no longer take Brasfield’s har-
assment and intimidation, which ‘‘scared’’ him, and he
‘‘panicked’’ and quit.
On February 27, 1989, Brasfield was issued a 3-day sus-
pension (commencing on February 28) for leaving the plant
during working hours without permission (in violation of
plant rule 14).55 Schuster testified that his written report re-
flects accurately the facts regarding the suspension.56 That
report indicates that Brasfield had asked to go home early,
and his request was denied by Supervisor Barry Wilson, who
signed the report (which included the actual suspension).
When Brasfield left for his lunch break, he did not return for
work that day. In his testimony, Brasfield claimed that Wil-
son did give him permission to leave early. The report warns
Brasfield that a further Rules violation will subject him to
dismissal. The report also lists employee Ollie Jordan as a
witness. In their testimony, Wilson denied giving Brasfield
permission to leave early, and Jordan confirmed Wilson’s
version. Schuster further testified that employees who leave
the plant during working hours are always disciplined, citing
a 3-day suspension given to an employee on March 9, 1988.
According to Schuster, when he gave Brasfield the 3-day
suspension, Brasfield claimed that since the ‘‘T-shirt’’ inci-
dent (election day, October 21, 1988), he had been picked
on by the Company. Schuster testified that he then told
Brasfield that his subsequent warnings were not ‘‘trumped up
because he supported the union . . . [they] were things that
he actually was involved with on his own, and we had docu-
mented proof of that.’’ Schuster related that he then warned
Brasfield that his next rules violation would subject him to
dismissal, whereupon Brasfield became upset, loud and bois-
terous, banging on his desk and claiming that they were out
to get him. Schuster denied that he ever told Brasfield he had
better start looking for another job.
Brasfield’s double hits occurred on March 21, 1989.
Schuster testified that he learned about the first double hit in
a phone call from pressroom Supervisor Barry Wilson, who
wanted Brasfield to be seriously diciplined. But Schuster, not
wanting to ‘‘over react,’’ told Wilson to counsel Brasfield
about being more careful. According to Schuster, Wilson in-
dicated that he had done this prior to the beginning of the
shift, but agreed to do so again. Schuster testified that several
hours later Wilson again called him and reported that
Brasfield had sustained another double hit. Schuster related
that he then meet with Wilson and pressroom foreman
Mitchell Whitney (who worked with Wilson on the same
shift) ‘‘to figure out what had really happened,’’ after which
he, Corporate Vice President Murray and Plant Manager
Rainone went over Brasfield’s record, and then decided to
discharge him. The actual discharge took place the following
day, March 22, 1989.57 Schuster conceded that he knew
Brasfield had passed out union T-shirts on the day of the
election (October 21, 1988), but denied that Brasfield’s union
support had anything to do with his discharge. Schuster
named some six employees who he personally knew were
open and active union supporters, and who were still at
MTD, adding that some of those employees were outspoken
about the Union at meetings, and some passed out union ma-
terials in the morning outside the plant.
Barry Wilson testified as a pressroom foreman, a position
he held for 3 years. His supervisor was superintendent of
fabrication Ben Gregg. Wilson related that in late October
1988 employee Mike Jones came to him and complained that
Brasfield was ‘‘harassing’’ him over money he owed him,
and about the Union, adding that Jones was ‘‘unsure’’ about
the Union and stated that the only reason he showed union
‘‘involvement’’ was the money he owed Brasfield, who was
holding it over his head. Wilson indicated he told Jones that
he could not help him and advised him to go to Gregg. Wil-
son testified that on a Saturday in late February 1989,58 his
first shift was scheduled to work 8 hours but that ‘‘about
lunchtime’’ they ran out of steel and he had to reassign em-
ployees to other jobs. Wilson indicated he approached
Brasfield and employee Ollie Jordan and told them they
would be working for Toolroom Supervisor Tim Doss in the
afternoon, after lunch. According to Wilson, both Jordan and
Brasfield ask if they could take the afternoon off, to which
747MTD PRODUCTS
59 A 5-year employee, Ollie Jordan, corroborated Wilson’s testi-
mony. She was absolutely certain that Wilson told them to return
after lunch. According to Jordan, she and Brasfield exchanged words
about the matter, Brasfield insisting that Wilson had given him the
afternoon off, and she insisting that Wilson had not. Jordon was par-
ticularly disturbed about Brasfield’s leaving as she had seniority over
him. Jordan testified that upon her return from lunch, she reported
to Doss in tool and die and Wilson thereafter came to her and asked
where Brasfield was, to which she replied that she did not know.
60 Jordan testified that she was called into the meeting with Wil-
son, Gregg and Schuster to verify what had happened on Saturday.
61 Biggers testified that he did in fact receive a union T-shirt from
Brasfield while at his press, which was during ‘‘working time.’’ As
noted earlier, Brasfield admitted having the T-shirts in the pressroom
but denied that he handed any out.
62 In later testimony, Gregg discussed the safety aspect by indi-
cating that a double hit was like putting a quarter in a dime slot,
and could cause the die to blow apart, resulting in pieces of the die
hitting the operators. According to Gregg, the force of the press in-
volved was 500 tons.
he replied that they were to report to Doss after lunch, and
when Doss finished with them, they ‘‘might’’ leave early,
adding that he would check with Doss and get back to them.
Wilson did indicate that he told Jordan and Brasfield that
some employees were going home early, on the basis of se-
niority, and after checking with Doss, he told them ‘‘there
was a good chance they could leave a little early.’’ Accord-
ing to Wilson, he allowed three employees to go home at
lunchtime, who were senior to Jordan and Brasfield. Wilson
testified that he ‘‘made sure’’ Brasfield understood he was
to return after lunch and report to Doss.59 Wilson related that
the following Monday morning (February 27) he meet with
Gregg and Schuster and it was decided that Brasfield would
receive a 3-day suspension for leaving early the previous Sat-
urday.60 The suspension began February 28, with Brasfield
still claiming that Wilson did give him the afternoon off.
Wilson escorted Brasfield out of the plant at the beginning
of his suspension, and denied that he in any way apologized
to Brasfield for the suspension.
Wilson testified that the only time he ever saw Brasfield
do anything in support of the Union was on election day
(October 21, 1988) when he observed Brasfield come into
the pressroom after lunch with T-shirts in his hand, and walk
back to the last press and hand one to employee Kenneth
Biggers, a press operator.61 Wilson indicated that he took no
action because Gregg and Schuster were there, and they han-
dled the matter. Wilson denied that he ever told Brasfield
that he could get fired for having the T-shirts, adding that
on the day of the election there were six to eight other em-
ployees in the pressroom wearing union T-shirts.
Wilson testified that he made the press assignments on the
day of Brasfield’s two double hits. Wilson indicated that they
had problems with the hitch plate sticking at Brasfield’s as-
signed position, and thus at the beginning of the shift he so
advised Brasfield, telling him to be careful and make sure
the part was out. According to Wilson, at about 8:30 a.m.
Brasfield made a double hit, after which the die was pulled
out and sent to be repaired, resulting in 1-1/2 hours of down
time. Wilson related that he again told Brasfield about the
tendency of the part to stick and to be careful, but about 15
minutes after the press was again started, Brasfield made an-
other double hit. Wilson denied that Brasfield came to him
that morning complaining about the sticking hitch plate, indi-
cating that as far as he knew no employee had ever sustained
two double hits during the same shift.
Mitcheal Whitney was also a foremen in the pressroom on
the first shift. He had worked for MTD for 4 years. Whitney
testified that sometime double hits do occur, and if it is the
first time for the employee, they normally are not diciplined,
but counseled. According to Whitney, Brasfield was the only
employee who ever had two double hits on the same job on
the same shift. Whitney testified that he also counseled
Brasfield after his first double hit, including the fact that the
die at his position had an inclination to stick, but that the
second double hit occurred about 20 minutes after the re-
paired die was inserted back into the press. Whitney indi-
cated that the downtime for the press after the first double
hit was approximately 2 hours, with less downtime after the
second double hit when the press was worked on over the
lunchbreak. Whitney testified that after the second double
hit, they switched Brasfield to another position at the press,
and later he asked Brasfield about the second double hit, and
Brasfield indicated he did not do it on purpose and ‘‘just
wasn’t paying attention.’’ Whitney denied that he told
Brasfield to forget it, or not to worry about it, but indicated
that he talked to Schuster about the incident because he
thought that Brasfield’s second double hit warranted dis-
cipline. Whitney also testified that he saw Brasfield pass out
a union T-shirt to Kenneth Biggers during working time, but
that he said nothing to Brasfield about the incident. Regard-
ing the Mike Jones incident, Whitney testified that he ob-
served Jones ‘‘crying’’ and ‘‘very upset,’’ and overheard
Jones yell to Brasfield ‘‘Fuck you and your union.’’
Ben Gregg was superintendent of fabrication at MTD’s
Martin plant where he had worked for over 5 years. As such,
under him was the welding department and the pressroom.
He had been with MTD a total of 18 years. Gregg testified
that Brasfield was discharged ‘‘For his record . . . for his
writeups, and of course, the double hit.’’ According to
Gregg, at the beginning of the shift in which the double hits
occurred he told Brasfield that the part was sticking occa-
sionally and to be careful, and not to worry so much about
production but to make sure he took the part out before he
put another in. Gregg indicated that Brasfield stated he un-
derstood. Gregg testified that several hours later Brasfield
had the first double hit and broke the die, which took about
2 hours to repair. When they got ready to start the press up,
Gregg indicated that he again reminded Brasfield of the
sticking problem and to be careful, and not to worry about
production as much as safety, and to make sure the part was
taken out. According to Gregg, Brasfield again stated that he
understood, but a short time thereafter Brasfield made an-
other double hit. Gregg testified that he then reported the
second double hit to Personnel Director Schuster because in
his opinion it warranted discipline as it endangered the safety
of all four press operators, and Brasfield had been told about
the part sticking problem twice.62 According to Gregg, no
other employee ever had two double hits on the same shift.
Gregg later recommended to Schuester that Brasfield be ter-
minated, based on his past record and the two double hits.
Gregg testified that the only union support or activity that
he knew of relative to Brasfield was the wearing of a union
T-shirt and passing one out during working time on the day
of the election only. Regarding the Mike Jones incident,
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
63 The written warning itself is without specifics, but recites that
Brasfield claimed he did not intend to harass Boyd. Busby’s written
warning recites that Busby provoked Brasfield into ‘‘saying things’’
to Boyd.
64 Although Boyd gave no dates in her testimony, other record evi-
dence indicates the incident occurred on either February 7, 8, or 9,
1989. Brasfield’s written warning was dated February 9 and Busby’s
was dated February 7.
65 Melton also testified that he had been a union supporter and as
such was a member of the organizing committee, had worn a union
pin during the campaign, and wore a union T-shirt on election day.
Melton indicated that he once initiated a conversation with Schuster
regarding the Union, asking Schuster if there would be any retalia-
tory action against him because of his union involvement, to which
Schuster replied, ‘‘As long as you’re not breaking any rules [sic]
violations, attendance problems, tardiness, you’ve got no problem,
you let me know and I’ll take care of it.’’
66 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983).
67 The February 28 allegations in pars. 13 and 14 are one in the
same, involving Brasfield’s early departure from the plant on Satur-
day, February 25, 1989. Brasfield was given a 3-day suspension, but
there was no written warning or written notice of suspension given
Gregg testified that shortly after the election Jones came up
to him and said he was going to quit because Brasfield was
harassing him and holding a loan over his head. Gregg indi-
cated that he tried to calm Jones down but Jones insisted that
he could not work there any longer with Brasfield there, and
he walked out, but that evening Jones called him at home
after he had been drinking and commenced to talk in circles.
Gregg then told Jones to write down what he was trying to
say and bring it to him at work. According to Gregg, a day
or so later Jones brought him a piece of paper with scrib-
bling that he could not understand, and Jones then said he
would go back home and have his wife write it out. Gregg
testified that a day or so later, Jones came back with another
‘‘formal complaint’’ against Brasfield, which he took from
Jones and gave to Schuster. Gregg denied telling Jones he
could get his job back if he filed a complaint against
Brasfield, and indicated that he had told Jones prior to sub-
mitting the complaint that the policy was not to rehire any-
body that had quit. According to Gregg, Jones told him the
reason for filing the complaint against Brasfield was because
he did not think it was right that he no longer had a job
when it was Brasfield who had done the harassing. Regard-
ing the Mary Boyd soap incident, Gregg testified that he in-
vestigated the matter after Boyd had gone to Schuster about
the matter, because Brasfield was working under him at the
time. Boyd’s complaint of harassment by Brasfield, Reid,
and employee Russell Busby over the lack of soap in a ladies
restroom, resulted in written warnings to Brasfield and
Busby. Regarding his investigation, Gregg merely testified
that ‘‘it turned out that Joe was harassing her and he got a
written warning for it.’’63
Mary Boyd had worked at the plant for over 4 years as
a janitor. Apparently Brasfield and Busby, at least, had
learned at a departmental meeting that the soap dispenser in
the ladies restroom was not functioning properly. Boyd testi-
fied that while in the breakroom, Brasfield, Reid and Busby
started ‘‘teasing’’ her about the soap dispenser, to which she
responded that it had been taken care of, and to leave her
alone.64 According to Boyd, Brasfield ‘‘kept on and kept
on,’’ telling her that she needed to do a better job than she
had on the soap dispenser, and she then told Brasfield that
she did no have to take such ‘‘abuse’’ from anybody, and
left the room crying. Boyd then reported the incident to Plant
Manager Rainone and Assistant Plant Manager Gido, who
told her to report the matter to Personnel Manager Schuster,
which she did. Boyd was later called to Schuster’s office
where also present were Gregg and Brasfield. Boyd testified
that at Shuster’s request, she again explained what had hap-
pened. Boyd related that Brasfield then denied it, and she
then told Brasfield that he was a ‘‘lie,’’ adding the he was
not going to run her off like he had done to Mike Jones, then
she left the office. Boyd testified that she had had ‘‘many
problems’’ with Brasfield before but had not reported them,
and had reached the point where she ‘‘just couldn’t take no
more.’’ In describing these ‘‘problems,’’ Boyd included such
things as throwing stuff on the floor and putting ketchup on
a table. Boyd conceded that she was against the Union, and
knew that Brasfield was in favor of the Union, but main-
tained she had nothing against Brasfield, although the two
had cursed each other before.
Brasfield appealed his discharge to the employee review
board, and the panel which heard the case was composed of
Chris Olds, Steve Melton, and Winston Sutton. Olds testified
that the board went over Brasfield’s record with Schuster,
and then heard from Brasfield, who maintained that he was
discharged because of his union support. Olds indicated that
Brasfield felt the double hits were not a good enough reason
to discharge him. Olds testified that he told the two other
panel members that as far as he was concerned, the Union
had nothing to do with Brasfield’s discharge because ‘‘I just
don’t feel that they would fire somebody for that reason . . .
there’s too many people down there that was union sup-
porters, because the vote was so close.’’ Olds indicated that
the panel also asked Brasfield about his leaving work early
without permission, and Brasfield said he thought he had
permission. Olds related that the panel then heard from Barry
Wilson, and considered a letter in the file from Ollie Jordan,
and decided that Brasfield had in fact left without permis-
sion. Olds indicated that the panel, while alone together, de-
cided to upheld the discharge, finding that MTD had acted
in ‘‘good faith.’’ Panel member Steve Melton’s testimony
corroborated the essential elements of Olds’ testimony,65 as
did that of member Winston Sutton, who added that
Brasfield was ‘‘vague, and not very definite on anything,’’
‘‘evasive,’’ and ‘‘would talk in circles.’’
2. Brasfield conclusions
In Wright Line,66 the Board established that if the General
Counsel makes a prima facie showing that protected activity
was a ‘‘motivating factor’’ in the employer’s decision to take
disciplinary action, the burden shifts to the employer to dem-
onstrate that the action would have taken place even in the
absence of the protected activity. Paragraphs 13, 14, and 15
of the amended consolidated complaint allege violations of
Section 8(a)(1) and (3) of the Act against Brasfield. Para-
graph 13 contains the written warning allegations on or about
November 4, 1988 (the Mike Jones matter), February 9, 1989
(the Mary Boyd incident), and February 28, 1989 (leaving
the plant without permission). Paragraph 14 contains the sus-
pension allegation (leaving plant without permission),67 and
749MTD PRODUCTS
to him. Schuster did draft a memo ‘‘TO: FILE’’ reciting the facts
and circumstances of the event, as gathered during his investigation
of the matter.
68 I am convinced that, as far as this case is concerned, Brasfield
was a chronic liar.
69 These include Rainone, Schuster, Wilson, Jorden, Biggers, Whit-
ney, and Gregg.
70 Even if the General Counsel had established a prima facie case,
I would have found that MTD has shown it discharged Brasfield
solely for lawful reasons.
71 Reid filed the charge in Case 26–CA–13157 on April 28, 1989,
alleging only the discharge. The resulting amended consolidated
complaint was issued June 6, 1989, containing Reid’s discharge alle-
gation, the allegations in the first and second complaints, together
with 11 new allegations of 8(a)(1) violations ranging from May 1988
to late February 1989.
72 Payne testified that Reid was very ‘‘vocal’’ about the Union,
wore a union button on his cap, and passed out union buttons in the
plant.
73 Reid had referred to Kemp in earlier testimony, indicating that
on March 15 his press had broken down and he and employee
Randy Morgan went back to Kemp’s press ‘‘to help them get their
production up so we would have something to do.’’ Reid testified
that since he and Morgan were a little faster than Kemp, he piled
parts ‘‘up high’’ in Kemp’s bin, causing Kemp to get behind, where-
upon employee Larry Little, who was also working at Kemp’s press,
‘‘hollered’’ at them to stop. Reid related that later on, Little told him
that Kemp ‘‘was really mad and he was fixing to go tell on us,’’
and subsequently Kemp, himself, indicated that he had complained
to Ben Gregg. Reid also testified that at the time he was discharged,
Schuster asked him if he had ever ‘‘put grease in [Kemp’s] eyes,
or oil, or boogers on his glasses,’’ to which he replied, ‘‘No.’’
74 The employee conference report or discharge notice was dated
March 22, 1989, and signed by Gregg and Schuster. Under ‘‘com-
ments,’’ it reads as follows: ‘‘Due to continued problems with this
employee and our concern for the safety of the workers in this plant
we feel it necessary to discharge this employee to avoid serious in-
jury or harm to employees.’’ Reid’s separation notice, signed by
Schuster and dated March 22, 1989, states, under reason for separa-
tion, ‘‘Violation of Plant Rules—Intimidating fellow employee—
Horseplay.’’
paragraph 15 alleges Brasfield’s discharge on March 23,
1989 (after the two double hits on March 21). By his own
admission, supported by other substantial evidence,
Brasfield’s only display of union support was his wearing of,
and the passing out of union T-shirts on the day of the elec-
tion (October 21, 1988). As indicated earlier, I discredit vir-
tually all of Brasfield’s significant testimony in the case,68
and I credit MTD’s supporting witnesses against Brasfield.69
Although I could not credit the pathetic Mike Jones, I find
that Brasfield was the primary (if not sole) cause for Jones’
walking off his job, and that the written warning given
Brasfield on November 7, 1988, was justified. I also find that
February 9 written warning for harassing Mary Boyd (with
Russell Busby) was justified, and that the February 28 sus-
pension for leaving early and without permission was justi-
fied. Finally, there came Brasfield’s two double hits on
March 21, 1989, followed by his discharge on March 22,
1989, some 5 months after the election, which was won by
MTD. In my opinion, Brasfield’s double hits were a serious
matter, and taken so honestly and legitimately by MTD.
They involved at least pure carelessness on the part of
Brasfield, and also brought into play matters of safety and
economy. In my opinion Brasfield self-destructed, and his
scant union support from the past played no roll in his writ-
ten warnings, his suspension, and his discharge. Under
Wright Line, supra, I find that the General Counsel failed to
make a prima facie showing that Brasfield’s union activity
and support was a motivating factor in MTD’s decision to
warn, suspend and discharge Brasfield.70 I shall thus rec-
ommend that the 8(a)(1) and (3) violations alleged in the
amended consolidated complaint involving Brasfield be dis-
missed.
J. The Discharge of Reid
1. Testimony and evidence
Paragraph 15 of the amended consolidated complaint al-
leges that on or about March 23, 1989, employee David Reid
was discharged in violation of Section 8(a)(1) and (3) of the
Act.71 Reid began his employment with MTD in early De-
cember 1986 as an assembly helper. He became a press oper-
ator in September 1988, which position he held until he was
discharged on March 22, 1989. Reid worked the first (or
morning) shift in the pressroom and his supervisor was Ben
Gregg. Reid claimed he supported the Union and testified
that he wore union button on his hat starting about August
1988, and that sometimes he also wore one on his shirt. Reid
also indicated he passed out ‘‘some green cards,’’ 8 or 10
union buttons in the plant, and some union literature in the
parking lot ‘‘about twice’’ prior to the October 21 union
election, and attended two union meetings. Reid related that
Assembly Department Foreman Lynn Payne saw him passing
out the literature in the parking lot, and in mid-August Payne
commented on his union button in front of other employees,
saying ‘‘he thinks that’s going to help him.’’72
Reid testified that on March 22, 1989, he reported for
work at the normal time, 6 a.m., and worked until the 8:30
a.m. break, after which he returned and had been working 20
or 30 minutes when his Supervisor Barry Wilson told him
he was wanted in the office. Reid indicated that he followed
Wilson to Schuster’s office when Ben Gregg also arrived.
Reid testified that Schuster accused him of ‘‘coming down
on Jason Kemp pretty hard lately,’’ and that ‘‘things are just
piling up on you too fast here lately.’’ According to Reid,
Schuster then referred to a ‘‘harassment’’ charge made
against him by Jason Kemp, and then stated, ‘‘We’ve inves-
tigated it, and we’re just deciding that for the safety of the
department and for the people in the department, that we’re
going to discharge you.’’73 Reid testified that he pointed out
that he had received only one written warning, had never
been in any trouble, and that others had first received sus-
pensions, and asked why he was being treated differently, to
which Schuster replied, ‘‘We just don’t want you working
here.’’ According to Reid, he was then ‘‘ushered’’ out of the
plant by Ben Gregg and Barry Wilson, and as he was walk-
ing out the door, Schuster said, ‘‘Good luck with your next
job, I hope you’ve learned something.’’ Reid testified that
his separation slip or notice stated that he was discharged
‘‘for horseplay, intimidating a fellow employee.’’74 Reid in-
dicated that the one written warning he had received prior to
his discharge was given to him by Gregg ‘‘about’’ January
1989 for ‘‘horseplay,’’ and involved a broom that he was
holding and the top of which was grabbed by one Charles
Dillon after which they were ‘‘just going around,’’ with Dil-
lon trying to take the broom away from him. According to
Reid, Gregg came by, accused them of horseplay and re-
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
75 Dillon did not testify in the case.
76 Hooks did not testify in the case.
77 Schuster testified that he gave Reid seven names selected by
him at random from a computer printout sheet.
78 Steve Melton testified that he had been a union supporter and
as such he was a member of the union organizing committee, had
worn a union button during the organizing campaign, and wore a
union T-shirt on election day.
79 Tibbs and Williams did not testify in the case, but the other
three did, and their testimony regarding Reid is summarized later
herein. Reid also wrote a letter to the review board dated March 28,
1989, claiming discrimination and alleging that the people who
‘‘talked’’ against him had the worst records in the plant and kept
their jobs by ‘‘telling’’ on other people.
80 Rainone indicated that he hired Schuster in September 1987 as
an individual ‘‘who could be responsive to the needs of the people
in the plant, who could improve the communication process among
all employees, and who could administer the rules and the policies
of the Company in a fair and equitable manner for all.’’
81 Rainone named six employees who were ‘‘more outwardly in
support of the union.’’ Only two of those named testified in the case
(Ronald Rogers and Steve Melton). Brasfield, Reid, and Robertson
were not among the six named employees.
82 Reid testified that he was ‘‘counseled’’ after the incident in
Schuster’s office, but he claimed that he did not ‘‘kick it in,’’ and
that Supervisor Steve Baker had told him to kick the machine after
it had taken his money. Reid conceded that he failed to mention
Baker to Schuster, to protect him. Baker did not testify in the case,
nor did Bill Harrington.
83 Hooks did not testify in the case. More specifically, the rep-
rimand accuses Reid of ‘‘loud and unnecessary remarks’’ and adds
that Reid ‘‘refuses to pay attention; he has also thrown objects [such
as spit balls, paper clips, paper wads, etc.] at [Hooks] and at the
screen.’’
84 Reid denied that he ever saw the evaluation or received a copy.
When asked if Whitney mentioned the deficiencies to him, Reid
could not remember, adding that Whitney did tell him that he talked
too much. In later testimony, Reid claimed that Whitney did not
mention any deficiencies.
85 This ‘‘counseling’’ was in writing and was dated December 9,
1988, and was signed by both Whitney and Schuster. Edge’s testi-
mony is summarized later herein.
86 Reid’s version was that he was trying to get Edge to speed up,
adding that ‘‘I probably used some bad language, but I didn’t call
him any names on that occasion.’’ Reid conceded that Wilson and
Whitney did talk to him about his ridiculing and making fun of
Edge, and he agreed to stop it, adding that he also asked Wilson and
Whitney to talk to Edge about Edge’s harassing him.
marked, ‘‘What if somebody had got hit or hurt.’’ Reid indi-
cated that right after the incident Dillon ‘‘got wrote up,’’ and
3 or 4 days later Gregg called him to the office and also
gave him a written warning concerning the incident.75 Reid
testified that prior to his discharge he had also been ‘‘coun-
selled’’ once by Schuster ‘‘about a month’’ or ‘‘a couple of
months’’ prior to the election (October 21, 1988), for ‘‘dis-
turbing a SPC class,’’ which was a training class taught by
one Virgil Hooks, and during which there had been a lot of
talking and laughing, the throwing of paper wads, and flying
airplanes. According to Reid, Hooks got mad and said he
was going to turn in about five names, which included him.76
Reid testified that thereafter he was called into Schuster’s of-
fice, and Schuster said, ‘‘just try not to disturb his [Hook’s]
class . . . . If you’ll do that for me, everything will be all
right.’’ Reid also testified that two supervisors had com-
plemented his work, indicating that Barry Wilson in February
1989 had remarked that since he had come to the press room
he had no problems with him, had never seen him do any-
thing wrong, and that he was as good a worker as he had
in the department. According to Reid, at this time Wilson re-
lated that he had heard rumors that he was ‘‘horseplaying,’’
and that Wilson stated the he did not want to see Reid get
into any trouble. Reid testified that a week latter Ben Gregg
patted him on the back and told him that he had been doing
‘‘a real good job of changing over the dies.’’ Reid conceded
that he had been discharged from his previous job for
‘‘horseplay,’’ but denied he was guilty thereof, adding that
he was going to quit anyway because of not enough pay.
Reid also denied that he ever told anyone at the plant that
he was against the Union. Reid Testified that he appealed his
discharge to the employee review board, and that he was
given a list of only five names, two of which he did not
know.77 According to Reid, the remaining three were Steve
Melton, Ken Landry, and Chris Olds, which he chose, but
adding that none of the three supported the Union.78 Reid
testified that some of the witnesses the review board talked
to were Jason Kemp, Larry Little, James Edge, David Tibbs,
and Spanky Williams, who Reid claimed were ‘‘all en-
emies.’’79
The plant’s General Manager John Rainone testified that
Reid was discharged on Personnel Director Schuster’s rec-
ommendation, for ‘‘horseplay’’ and ‘‘threatening or intimi-
dating’’ employees, adding that the discharge was ‘‘trig-
gered’’ by a written complaint from an employee.80 Rainone
related that he knew of the union support of Brasfield and
Robertson prior to their discharges, but that Reid’s union
support was a ‘‘complete surprise’’ to him.81
Schuster testified that he recommended Reid’s discharge
after reviewing his file and talking to supervisors and other
employees. Schuster identified a note in Reid’s file which in-
dicated that a warning had been given to Reid on June 23,
1988, by Supervisor Bill Harrington for kicking a ‘‘Tom’s’’
machine.82 Schuster also identified a letter of reprimand to
Reid, dated July 5, 1988, and signed by Virgil Hooks as
‘‘SPC Co-ordinator.’’ The reprimand accuses Reid of ‘‘con-
stantly disrupting’’ Hooks’ class.83 After Reid transferred to
the pressroom, a 60-day probationary evaluation was was
completed on him by Pressroom Foreman Mitcheal Whitney,
in consultation with Superintendent of Fabrication Ben
Gregg, dated December 9, 1988. Schuster identified the eval-
uation, which reflects that Reid’s work was not satisfactory
and his attitude was bad. The evaluation also indicates ‘‘a
problem with horseplay,’’ ‘‘ridiculing other employees,’’ and
not taking his work seriously, and while the evaluation re-
cites that Reid was not ‘‘progressing,’’ it recommends that
Reid ‘‘be retained in this classification.’’84 Schuster testified
that in December an employee named James Edge com-
plained that Reid was making fun of him. Schuster indicated
that he talked to both Edge and Reid, and thereafter ‘‘issued
a counseling session’’ to Reid and asked Reid to stop it, to
which Reid agreed.85 Schuster described Reid’s actions as
‘‘verbal harassment,’’ and also indicated that they had a
horseplay problem with Reid.86 Schuster identified a hand
written note by Pressroom Foreman Barry Wilson, which re-
flects that on January 21, 1989, Wilson talked to Reid about
his ‘‘attitude and horseplay,’’ and also advised Reid that he
751MTD PRODUCTS
87 The warning was signed by Gregg, Schuster, and Reid, and indi-
cates that employee Ralph Ramsey was bumped in the head. Dillon’s
testimony is summarized later herein. Ramsey did not testify in the
case. In testimony Reid denied that Ramsey was hit or bumped,
claiming that Gregg made that up. Reid did not deny the wrestling
with Dillon.
88 Reid’s discharge report, signed by both Gregg and Schuster, re-
flects that Reid was discharged for repeated rules violations and in-
timidating a fellow employee. Under comments, reference is made
to ‘‘continued problems with this employee and our concern for the
safety of the workers in this plant.’’ Reid’s state separation notice,
signed by Schuster, reflects that he was discharged for violation of
plant rules, intimidating a fellow employee, and horseplay.
89 The written warning and discharge notice pertaining to Dobson
were admitted into evidence, together with written warnings for
horseplay to Dan and Melisa Smith on November 4, 1988, a written
warning to Tony Prince on November 8, 1988, a written warning to
Michael Riddick on January 4, 1989, and a written warning to Chad
Martin on April 17, 1989. Plant rule 31 prohibits horseplay.
90 Reid testified that he and the four other operators of a press
were ‘‘counseled’’ by Gregg in November on production, but he
blamed it on one particular operator who he said had a bad record
and was slow. In later testimony, Gregg conceded that he only ver-
bally counseled the press operators together. Reid did not deny the
actual wrestling, but testified that he did not ‘‘agree’’ with the warn-
ing because everybody in the department had done the same thing
and had not been written up. Reid also testified that nobody was
bumped in the head, accusing Gregg of making that up.
91 Reid was given written counselling after Edge’s complaint by
Pressroom Foreman Mitchel Whitney on December 11, 1988. In the
comments section appears the notation that ‘‘David agreed it would
stop.’’
92 Kemp testified in the case and that testimony will be summa-
rized later herein, including the contents of the written complaint
which describes serious, dangerous, and degrading acts by Reid and,
to a lesser extent, Randy Morgan.
was ‘‘heading for serious trouble if he kept on with his
horseplay and child like pranks.’’
Schuster testified that Reid received a written warning on
February 3, 1989, for wrestling with employee Charles Dil-
lon in the pressroom.87 Schuster indicated that during the
months of December, January, and February (1988–1989)
was when ‘‘all the complaints were coming in’’ about Reid
and involving ‘‘a lot of horseplay, harassment, teasing peo-
ple, [and] throwing objects.’’ According to Schuster, he
could not take any action on many of the complaints because
the employees would not file a complaint in writing.
On or about March 20, 1989, employee Jason Kemp filed
a written complaint with Superintendent of Fabrication Ben
Gregg, who investigated the matter and reported back to Per-
sonnel Director Schuster. Kemp’s complaint involved harass-
ment by Reid and employee Randy Morgan over a 5-month
period, and alleged such things as putting ‘‘buggers’’ on
him, putting grease on his face, the throwing of metal
shavings at his face, getting into his lunch box, and other
verbal harassment. Gregg’s investigation gave merit to
Kemp’s allegations, and Gregg so advised Schuster. Schuster
testified that he then talked to Kemp, and became satisfied
that Kemp’s allegations were true, and that the harassment
had been ongoing for at least 3 months. Schuster indicated
that he considered Reid’s conduct serious violations of com-
pany rules, and that on March 22, 1989, he met with Reid
and discharged him.88 Employee Randy Morgan, who had no
prior written warnings, was initially given a 5-day suspen-
sion, but during the suspension period Schuster changed his
mind, and by a letter dated March 29, 1989, Schuster also
discharged Morgan because of the Kemp incident. Morgan,
like Reid, appealed his discharge to the employee review
board, which recommended against the discharge, and
Schuster followed the review board’s recommendation and
put Morgan on probation for 1 year with the stipulation that
if there were any rules violations or problems during the pro-
bation period, Morgan would be discharged, with no appeal
rights to the review board. Schuster testified that he decided
not to ultimately discharge Morgan because Reid had been
the ‘‘ringleader’’ and Morgan ‘‘was just a follower’’ and had
no prior warnings. Schuster indicated that other employees
had been diciplined for horseplay, intimidation, or harass-
ment, as was David Dobson who was suspended in Sep-
tember 1988 for harassing another employee, and later dis-
charged for continuing the same conduct.89 According to
Schuster, up until Reid’s discharge he was unaware of any
situation where there was no discipline after incidents of
horseplay or harassment, and he was also unaware of any
employee who had more disciplinary writeups or notes in
their file concerning horseplay and harassment than Reid.
Schuster also testified that he never mentioned the Union in
any conversation with Reid, and that to his knowledge Reid
never wore or did anything which would indicate that he
supported the Union.
Superintendent of Fabrication Ben Gregg was the overall
supervisor of the pressroom, and testified that Reid was an
‘‘average’’ press operator, and was discharged for ‘‘horse-
play, lack of production, [and] attitude.’’ Gregg related that
he had ‘‘written [Reid] up for not working up to capacity,’’
and that he actually observed Reid and Dillon wrestling on
February 2, 1989, during which they were ‘‘bumping into
people, and they bumped into one fellow and hit him in the
head.’’ Gregg gave written warnings to both Reid and Dillon
because of the incident.90 Gregg testified that employee
James Edge complained to him that Reid was calling him
names and ‘‘tormenting’’ him.91 According to Gregg, after
the Edge complaint, Jasen Kemp came to him ‘‘pretty upset’’
and ‘‘afraid,’’ stating that he wanted to file a formal com-
plaint against Reid for ‘‘picking’’ on him.92 Gregg then told
Kemp to put his complaint in writing, and he would then in-
vestigate it. Kemp did so and Gregg testified that on March
20, 1989, he talked to at least six other employees who
verified Kemp’s complaint, and the involvement of employee
Randy Morgan to a lesser extent, who would ‘‘occasionally
. . . chime in.’’ Gregg testified that based on his investiga-
tion and Reid’s record, he recommended to Schuster that
Reid be discharged, and that Morgan suspended. Reid was
discharged 2 days later. Gregg indicated that MTD did not
tolerate horseplay, and the only horseplay he had ever seen
was the Reid-Dillon wrestling on February 2. Gregg also tes-
tified that he had never seen Reid wearing a union button or
T-shirt and had no idea as to whether or not Reid supported
the Union.
Mitchel Whitney was a pressroom foreman on the first
shift and had worked for MTD for 4 years. Whitney testified
that he never saw Reid wearing a union T-shirt or a union
button, and that Reid never said anything to indicate he sup-
ported the Union. After Reid was transferred to the press-
room, it was Whitney who performed Reid’s 60-day evalua-
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
93 The evaluation, dated December 9, 1988, was discussed in some
detail earlier, during the summary of Schuster’s testimony. Reid de-
nied Whitney’s version of the discussion, indicating that Whitney
told him he had been doing ‘‘a real good job,’’ but that he ‘‘just
liked to talk a little bit too much.’’ Reid also denied that Whitney
mentioned anything about horseplay or that Whitney went over the
evaluation with him.
94 The specifics of this written counseling are mentioned earlier,
also during the summary of Schuster’s testimony. Reid conceded that
he ‘‘probably used some bad language,’’ but denied that he called
Edge any names, claiming that Edge was also harassing him.
95 Edge testified that everybody ‘‘tossed’’ slugs underhanded, but
that Reid ‘‘threw’’ slugs overhanded. Slugs were rounded metal
pieces the size of a dime, and were part of the residue of the press
stamping process. At one point, Reid testified that ‘‘everybody
throws things at everybody.’’ Penny Robertson testified that in 1988
(during the night shift) horseplay would go on all the time, sometime
in front of supervisors. Robertson indicated this horseplay included
the throwing of a glove with metal pieces in it, water fights with
the use of five extinguishers and 5-gallon buckets, and the throwing
of metal shavings, screws, nuts, and bolts. According to Robertson,
at one point the Company called a meeting in the pressroom to dis-
courage horseplay.
96 Reid never directly refutes these statements during his testi-
mony.
97 Reid, on the other hand, testified that Kemp was ‘‘our [meaning
his and Randy Morgan’s] friend . . . . You know, we’d kid around
with him, and he’d kid with us . . . . Me and Jason would go out
on weekends . . . . Just pretty good buddies, you know.’’
98 In his testimony Reid conceded that he threw a glove at Kemp,
adding ‘‘Maybe he’d throw one at me and I’d throw one back.’’
When Reid was asked if he ever threw metal at Kemp, Reid an-
swered as follows: ‘‘There might have been a time or two when the
little round slugs, when he’d throw at me, I’d throw one back across
the press or something. Everybody done it.’’
99 Reid claimed that on the day he was discharged (March 22,
1989), Schuster ask him if he ‘‘put grease in [Kemps] eyes or
boogers on his glasses,’’ and Reid answered, ‘‘No.’’
tion, and Whitney testified that it was ‘‘fairly bad’’ because
he had received complaints about Reid ‘‘picking on people
. . . [and] holding back on production.’’ Whitney testified
that he meet with Reid and discussed the evaluation with
him, pointing out that he had caused a lot of trouble and
problems, had talked a lot and cut up, was not very serious
about things on the floor, and advised him that they expected
him to come in and do a job and not disrupt the depart-
ment.93 Whitney indicated that he disciplined Reid once,
when employee James Edge came to him ‘‘pretty mad’’ and
complained that Reid was making fun of him and calling him
names. Whitney explained that the discipline was in the form
of written counseling on December 9, 1988.94
Employee James Edge worked in the pressroom on the
first shift with Reid. Edge testified that Reid ‘‘liked to harass
people, and joke at them, and pick on them most of the
time,’’ adding that Reid would throw slugs at him, call him
names like ‘‘Monkeyhead,’’ ‘‘Wolf man,’’ and ‘‘son-of-a-
bitch,’’ and knock his hands off the buttons of the press
(those buttons that each individual press operator would push
to activate the press).95 Edge testified that these things both-
ered him, and that he asked Reid to stop it, but things got
worse and it came to the point where he could not do his
job properly. Edge related that he first complained to Press-
room Foremen Whitney and Wilson, after which Reid
‘‘slowed down for a couple of days, and then . . . it started
back up, it just got worse,’’ whereupon he went to Personnel
Director Schuster. Edge indicated that Reid then left him
alone, but ‘‘started on other people,’’ including Jason Kemp.
Edge testified that he was with Reid ‘‘during the time of the
election,’’ but never saw Reid wearing a union T-shirt or a
union button. Edge indicated that he was a union supporter,
and testified that 2 weeks before the election he approached
Reid to seek his support for the Union, and Reid stated,
‘‘No, I’m not for the union . . . Because I don’t want to be
for the union, and I don’t think we need a union in here.’’96
Jasen Kemp, who came to work with Reid in the press-
room, testified that at first he and Reid were just working
partners, and later on they got to know each other ‘‘pretty
well,’’ but the only social thing they ever did together was
to go out to dinner once. Kemp indicated that later on, Reid
‘‘figured out he could push [him], and keep pushing, he pro-
gressed to be where I wouldn’t call him so much of a
friend.’’97 Kemp testified that Reid made fun of his farming
and his hogs, and told other people (including women) that
he was ‘‘screwing hogs.’’ Kemp indicated that on one occa-
sion after October 1988 he was working on the same press
that Reid and Randy Morgan were on and Morgan took his
arm guard off and tossed it on the other side of the press,
and he then asked Reid to hand back the arm guard and
Reid, after wiping grease on it, threw it at him. Kemp indi-
cated that he then wiped the grease off his arm guard with
one of his gloves and tossed it (the glove) to the other side
of the press where it hit Reid in the chest, after which Reid
came around to his side of the press and wiped a finger full
of grease in his beard. Kemp testified that as he was trying
to get the grease out of his beard, everybody was laughing
and Reid went back to his side of the press and put alu-
minum shavings on the greasy glove and ask him if he had
enough, whereupon Reid threw the glove at him causing alu-
minum shavings to go all over him.98 Kemp related that on
two other occasions, Reid put ‘‘boogers’’ on him.99 Kemp
testified that on yet another occasion he was ‘‘jabbed’’ with
a broom, once by Morgan and twice by Reid, and he also
found out that Reid and Morgan had been going through his
lunch box, and that he finally went to Ben Gregg and told
him what had been happening but asked Gregg not to do
anything yet because he had talked to Reid and wanted to
see if that worked. Kemp indicated that a few days later the
incident with Reid and Morgan at his press occurred, with
Larry Little present. Kemp testified that he was running
‘‘shop mount brackets’’ slowly because of bad metal when
Reid and Morgan approached his press, and Reid said that
he should be running them faster, whereupon Reid went to
another press and started running the brackets ‘‘wide open,’’
causing his bin to become overflowing with the brackets. Ac-
cording to Kemp, Reid and Little exchanged words about the
situation, with Little telling Reid that they did not need his
help, to which Reid replied, ‘‘Well, you’re going to get our
damn help,’’ and then Foreman Barry Wilson approached,
and Reid and Morgan left. Kemp testified that he again went
to Gregg, who advised him to put his complaints in writing,
so that he could do something about the matter. That night,
at home, Kemp drafted his written complaint, and the fol-
lowing morning he gave it to Gregg. Kemp indicated he later
learned that Reid and Morgan had been discharged but had
appealed to the review board, and he subsequently appeared
before both. Kemp testified that on the day Reid was dis-
753MTD PRODUCTS
100 Reid admitted that he followed Kemp and passed him, but de-
nied that he ever shook his finger at Kemp, and also denied that he
again began to follow Kemp.
101 Little later testified that Kemp was not behind, and that he
stopped using his machine so he could stack his own parts on his
press.
102 Kemp did not mention any cigarette incident during his testi-
mony, nor was he asked about it. In rebuttal testimony, Reid denied
that it was he who ‘‘thumped’’ the cigarette, but that it was Randy
Morgan, adding that the cigarette hit Kemp’s shirt and fell on the
floor, and Kemp picked it up and threw it back at Morgan. As indi-
cated earlier, Morgan did not testify in the case.
103 Although the record does not elaborate on who is referred to
in the term ‘‘y’all,’’ from his demeanor, I concluded that Gallamore
was referring to Schuster and counsel for MTD.
104 As in Brasfield’s case, the actual results or decision of Reid’s
review board (panel), to uphold the discharge, will not be considered
as evidence in the case. This same panel also heard the appeal of
employee Randy Morgan, who was first suspended, then terminated,
and ultimately reinstated on probation.
105 The written report of the panel, dated March 29, 1989, lists 13
individuals which appeared, in addition to Reid. According to
Landry, Randy Morgan did not appear because he was on suspension
at the time.
charged, he passed Morgan’s driveway on the way home and
Reid was parked in the driveway, and then Reid started fol-
lowing and tailgating him and shaking his finger at him.
Kemp related that at one point Reid passed him, still point-
ing his finger at him, and they both stopped for a traffic
light, and thereafter Reid again pulled in behind him. Kemp
indicated that it was not until he pulled into ‘‘the Sheriff’s
station’’ that Reid left.100 Kemp testified that ‘‘for the most
part’’ Reid was the leader and Morgan ‘‘would be a laugher
right beside him [Reid],’’ adding that he never had problems
with Morgan until Reid came into the department, and when
Reid and Morgan would ‘‘pick and carry on,’’ supervisors
were not present.
Larry Little had worked in the pressroom at MTD for 3
years, during both the day and night shifts. He had worked
the day shift with Reid for 4 months. Little testified that he
and Reid used to be friends until he found out how Reid was
treating ‘‘some people,’’ and the more he got to know Reid,
the further away he got from him. Little related that Reid
‘‘would find things about you that bothered you, [and] just
keep on with it, because he knew it bothered you.’’ Little in-
dicated that Jason Kemp was on of those people that Reid
was bothering, and that Reid would kid Kemp about his
hogs, and would ‘‘wipe grease’’ on Kemp and ‘‘pick his
nose and wipe it on him.’’ Little added that once Reid went
through Kemp’s lunch box and through his personal things.
Little testified that right before Reid was terminated, he and
Kemp were running shock mount brackets at separate but ad-
jacent presses, and he had stopped using his press to allow
Kemp to ‘‘get caught up’’ when Reid appeared unsolicited
and started running the brackets again on his press, which
caused Kemp’s bin to become overflowing with parts which
were falling off onto the floor ‘‘on Jason’s feet.’’101 Little
indicated that he ask Reid to stop twice but Reid refused,
whereupon he then unplugged the conveyor leading to
Kemp’s bin and threatened to go get Foreman Barry Wilson,
and Reid then left. Little testified that he told Superintendent
Ben Gregg about the incident after Kemp had also seen him,
and later on appeared before Reid’s review board. Little con-
ceded that other employees engaged in horseplay, but not as
‘‘severe’’ as Reid, adding that horseplay never occurred
when supervisors were around. Little testified that he never
saw Reid wearing a union button or a union T-shirt.
Employee David Gallamore had worked in the pressroom
for 3 years, and testified that Reid was ‘‘very rude’’ and
‘‘liked to harass people,’’ adding that Reid would do what-
ever he could to aggravate somebody to the extent where it
made them mad. Gallamore indicated that Reid primarily
picked on him and Jason Kemp, but also others, and ‘‘would
do all kinds of things’’ like throwing slugs and gloves con-
taining oil and grease. On cross-examination Gallamore con-
ceded that slugs and gloves were thrown by others, but only
to get someone’s attention and not to hurt somebody, as was
the case with Reid. Gallamore testified that Reid once
‘‘thumped’’ a cigarette at Kemp which went into Kemp’s
pocket and caught his shirt on fire.102 Gallamore indicated
that after Kemp made his complaint, he was questioned
about Reid by Foreman Barry Wilson, Superintendent Ben
Gregg and, in Personnel Director Schuster’s office, by
‘‘y’all.’’103 He also appeared before Reid’s review board
where he was asked about ‘‘stuff’’ and about an incident
when Reid and Morgan had put a cigarette butt in his drink.
Gallamore testified that when Reid was working in the press-
room, he did not like going to work ‘‘because [he] knew
what was going to happen as soon as [he] got to work,’’ and
that since Reid was terminated ‘‘it’s a whole lot better.’’
Gallamore could not remember whether or not he ever saw
Reid wearing a union button or T-shirt.
Employee Ollie Jordan had worked in the pressroom for
4 years. When asked about Reid’s conduct in the pressroom
she answered simply, ‘‘Bad.’’ When asked to explain she
testified that Reid ‘‘threw slugs and messed with Jason
[Kemp] terribly.’’ Jordan also testified that Reid ‘‘never’’
wore a union button or T-shirt.
The three-member employee review board panel which
heard Reid’s case was composed of Chris Olds, Kenneth
Landry, and Steve Melton, and all three testified in the
case.104 Olds testified that they went through Kemp’s letter
of complaint with Reid, item by item, and Reid admitted to
doing all of the things in the letter but stated that he ‘‘didn’t
think it was serious.’’ Olds related that they then asked Reid
why he didn’t stop when Kemp ask him to stop, to which
Reid responded, ‘‘He didn’t really think he really meant for
him to quit.’’ According Olds, the panel thought the glove
throwing incident was serious and they ask Reid if in fact
he dipped a glove with metal shavings on it into grease and
threw it at Kemp hitting him in the face, and Reid admitted
it, but indicating that he didn’t mean to hit Kemp in the face.
Olds testified that the panel interviewed a number of employ-
ees over a 2-day period, including Kemp, Gregg, Barry Wil-
son, Larry Little, Kenneth Williams, Opal Thorpe, and Dar-
rell Gallamore. The testimony of panel members Landry and
Melton, who was a strong and outward union supporter, es-
sentially corroborates that of Olds.105
Pressroom Foreman Barry Wilson testified that horseplay
is not tolerated, and that he has never seen gloves, slugs or
metal fragments thrown, or any other such conduct. Wilson
described Reid as a ‘‘below average to average’’ press oper-
ator, and not a hard worker. Wilson testified that five or six
employees complained to him about Reid for ‘‘everything
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
106 Wilson made a written memo about this counseling which was
admitted into evidence.
107 In rebuttal testimony, Reid denied making such a remark to
Wilson.
108 Those eight were Rainone, Schuster, Gregg, Whitney, Wilson,
Edge, Little, and Jordan. Gallamore could not remember.
109 As in Brasfield’s case, even if the General Counsel had estab-
lished a prima facie case against Reid, I would have found that
MTD has shown it discharged Reid solely for lawful reasons.
from wiping a booger on an individual to throwing a part at
a person’s feet, to verbal harassment.’’ Wilson related that
on one occasion, employee James Edge came to him in tears,
stating that Reid had been harassing him over his haircut,
calling him ‘‘monkey head.’’ Wilson testified that he then
meet with Reid and talked about his horseplay and harass-
ment, indicating that it was getting out of hand, and that he
needed to stop it. According to Wilson, Reid admitted
‘‘doing some of it,’’ but added that he did not realize he was
causing so much trouble, indicating that he would ‘‘settle
down.’’ Wilson denied that told Reid to disregard employee
complaints, that those complaining were troublemakers, that
he had been watching him but had not seen him do anything
wrong, or that he had no idea why people were complaining
about him. Wilson indicated the he received complaints
about both Reid and Morgan, but more regarding Reid, add-
ing that since Reid’s discharge, he has received none regard-
ing Morgan.
Reid had transferred into the pressroom (a promotion re-
garding pay) on September 26, 1988, and Pressroom Fore-
man Mitcheal Whitney did Reid’s 60-day evaluation (dated
December 9, for the period September 26 to November 26)
which indicates that Reid had a bad attitude and engaged in
horseplay. Wilson testified that he and Whitney had con-
sulted together about the 60-day evaluation. Wilson, after
consulting with Whitney, did Reid’s 90-day evaluation,
which reflects no deficiencies. Wilson testified that he and
Whitney agreed that Reid did ‘‘straighten up’’ and did show
‘‘an improvement’’ after his 60-day evaluation, but that a
month after his 90-day evaluation, complaints about Reid
‘‘started coming in one after the other’’ regarding horseplay
and verbal harassment, and he thus meet with and counseled
Reid on January 21, 1989.106 Wilson denied that he ever told
Reid he was doing a good job, but indicated that during
Reid’s 90-day evaluation he did tell him he had ‘‘improved
somewhat.’’ Wilson testified that he never saw Reid wear a
union button or T-shirt, and that soon after he came to the
pressroom he talked with Reid about how things were going,
and Reid stated that he had been for the Union when he
worked on the assembly line, ‘‘but he wasn’t now.’’107 Re-
garding press operations, Wilson testified that if an opera-
tor’s press goes down, he should start cleaning up his area
and should not go to and operate another press unless told
to do so by himself or Whitney.
2. Reid conclusions
Reid testified that he supported the Union and dem-
onstrated that support by wearing a union button on his hat
and sometimes on his shirt beginning in August 1988, by
passing out ‘‘some green cards,’’ by handing out union but-
tons in the plant, and by passing out union literature in the
parking lot ‘‘about twice.’’ I discredited Reid early on in this
case, and I doubt that Reid’s union activities were as exten-
sive and longlasting as he would have us believe, and I find
there came a time when Reid’s union support (at least out-
wardly) ceased. Prior to coming to the day shift in the press-
room on September 26, 1988, Reid had worked on the as-
sembly line. Assembly Department Foreman Lynn Payne,
who supervised Reid on the assembly line in June, July, and
August 1988, creditably testified that Reid was ‘‘very vocal’’
in his support of the Union, and confirmed that Reid wore
a union button on his cap, and passed union buttons out in
the plant. Payne attributed Reid’s union support to the fact
that Reid was ‘‘angry’’ that he had been moved from one
job to another, and thought that such would not have been
the case if there had been a union. However, when Reid bid
for and received the pressroom job with day work at a higher
salary, he came to feel more secure, especially with a good
90-day evaluation. Besides Payne, some 13 witnesses testi-
fied against Reid, and all gave testimony regarding Reid’s
work and behavior in the pressroom only. Of the 13 wit-
nesses, 9 were either involved with or worked in the press-
room, and out of those 9, 8 never saw Reid wearing a union
button or T-shirt, or knew what his union sentiments
were.108 Employee Edge credibly testified that 2 weeks be-
fore the election (on October 21, 1988), Reid told him he did
not support the Union, and Pressroom Foreman Wilson
credibly testified that Reid had told him he was for the
Union when he worked on the assembly line, but had
changed his mind when he was transferred to the pressroom
(on September 26, 1988). I in fact find this to be the case.
Having been transferred to a better and higher paying job,
and having passed the 90-day probationary period, the true
character of Reid emerged. As Personnel Director Schuster
put it, in December, January, and February, ‘‘all the com-
plaints [about Reid] were coming in.’’ Reid, the chronic liar
and bully, turned into a cruel, thoughtless, and disruptive in-
dividual and employee. I find that all of the cruel, tor-
menting, and disruptive actions ascribed to Reid by the many
witnesses against him did in fact occur. Reid’s answer to his
accusers was that either he flat out did not do it, or everyone
else in the plant did due it. Randy Morgan I find was indeed
a follower, and Reid certainly gave him plenty to follow.
Reid understandingly became an undesirable and unwanted
employee. Kemp’s written complaint of March 20, 1989, de-
scribing cruel, sadistic, and degrading behavior, was a heavy
and final blow against Reid. Schuster knew that if the acts
described in Kemp’s complaint proved to be true (which they
did), Reid would have to go. The union election was far in
the past (5 months) and Reid had dropped his support for the
Union almost a month before the election. I find that Reid’s
actual (or imagined) support for the Union played no role in
his discharge, which I find was motivated solely by his be-
havior and misconduct. Consistent with the above findings,
I further find, in accordance with the Board’ decision in
Wright Line, 251 NLRB 1083, that the General Counsel
failed to make a prima facie showing that the protected or
union activity of Reid was a motivating factor in MTD’s de-
cision to discharge him.109 I shall thus recommend that the
wrongful discharge of Reid, as alleged in paragraph 15 of the
amended consolidated complaint, be dismissed.
755MTD PRODUCTS
110 Robertson filed her charge on November 30, 1988. The com-
plaint (the first in these cases) was issued by the Regional Director
on December 23, 1988, alleging Robertson’s unlawful suspension
and discharge, and also two violations of Sec. 8(a)(1) of the Act in-
volving threats by Ben Gregg on or about October 21, 1988 (par.
9(d) of the amended consolidated complaint), and the promulgation
and maintenance of an unlawful no-solicitation rule on and since
November 4, 1988 (par. 12 of the amended consolidated complaint).
I had earlier dismissed both of the 8(a)(1) allegations after MTD’s
Nickles Bakery motion. They, as all others, were reinstated by the
Board, and those two have been handled in secs. D and E, earlier
in this decision.
111 There is no real issue in the case about Robertson’s union sup-
port, and MTD’s knowledge of the same. However, during cross-ex-
amination she conceded that prior to the 1988 election she tried to
keep a low profile regarding her union involvement until near the
end of the union campaign.
112 Black had been discharged in part because of his inability or
failure to control the goings and comings of Robertson. Black did
testify in the case and the subject of his discharge will be discussed
later herein.
K. The Suspension and Discharge of Robertson
1. Testimony and evidence
Paragraphs 14 and 15 of the amended consolidated com-
plaint allege Penny Robertson’s unlawful suspension on No-
vember 2, 1988, and discharge on November 4, 1988, in vio-
lation of Section 8(a)(1) and (3) of the Act.110 Robertson
started her employment with MTD in October 1985, working
on the assembly line. Two years later she bid on and was
awarded a job in quality control, inspecting parts in the
pressroom, the job she held up until her discharge. Robertson
was an active, open, and outward union supporter prior to
both elections. Before the first election in July 1987, she was
an organizer and a union election observer. Robertson testi-
fied she also obtained a ‘‘large amount’’ of signed union au-
thorization cards, attended union meetings, and wore a union
button. Robertson indicated she was equally active before the
second election on October 21, 1988. She was on the orga-
nizing committee, and again was a union observer during the
election. She also wore a union button (or ‘‘pin’’) at work
and, in public (but not at work), a union T-shirt.111 Robert-
son testified that in quality control she worked the second
shift (4:30 p.m. to 2 a.m.) and her supervisor was Jim Black.
Robertson indicated that as part of her job, she was required
to leave the pressroom and go to other departments, includ-
ing spot welding, mig welding, and the assembly line. Rob-
ertson related that she went to mig welding once an hour to
check the length of ‘‘deck handles’’ which were later to be
welded to ‘‘decks.’’ Robertson testified that on November l
she was taken to Personnel Director Schuster’s office by Su-
pervisor Dick Roll, and was suspended for 3 days by
Schuster for ‘‘talking’’ in mig welding, but she added that
other inspectors ‘‘would go there’’ (to mig welding), and
people from the assembly line would go there to smoke.
During her cross-examination Robertson initially and again
claimed that her quality control job required her to go to the
mig welding department to insure that brackets which were
welded on decks were not too long or too short, yet later on
Robertson testified that mig welding had it’s own inspector,
and she went there to check that ‘‘the holes were precise
. . . for [her own] sake,’’ adding that if she were to ask the
other quality control inspectors in the pressroom, they would
have told her to go to mig welding once per hour to check
parts. On cross-examination Robertson conceded that she
sometimes went to the mig welding department on her work-
ing time for personal business or to talk to friends, and that
she had dated mig welders Brad Oliver and Wayne Boyd,
who she is presently engaged to. Robertson also conceded
that Pressroom Supervisor Dwight Emerson, Quality Control
Foreman Jim Black, Superintendent Ben Gregg, Mig Weld-
ing Supervisor Kevin Rogers, and Schuster, himself, had
talked to her about staying out of mig welding and remaining
in the pressroom. In later testimony, Robertson indicated that
none of these admonishments came prior to September 1988.
Robertson testified that when Schuster suspended her on No-
vember 1, he had a written statement which indicated that
her ‘‘boss’’ (Jim Black) could not control her, and she told
Schuster that part of the statement was not true, but signed
the statement and refused to tell Schuster what part was not
true. Robertson indicated she also told Schuster and Super-
visor Dick Roll that she was not the only employee who
went to other departments, but she refused to give Roll any
names.
Robertson testified that neither Schuster or any other su-
pervisor told her she could not enter the plant while on sus-
pension. According to Robertson, after she was suspended
and left the plant she called back by phone and talked to Su-
perintendent Ben Gregg, who gave her permission to come
to the ‘‘front office’’ between 3 and 4 p.m. the following day
(November 2) to pick up her paycheck. In cross-examination,
Robertson conceded that Gregg did not give her permission
to go anywhere other than the front office. The following
day (November 2) Robertson related that she went to the
plant with her 4-year-old daughter, arriving around 3 p.m.
She also had a ‘‘petition’’ to circulate in an attempt to get
Jim Black, her former supervisor, his job back. Black had
been discharged that same day (November 2).112 Robertson
testified that she went up to the employee entrance and stood
there a few minutes, and then walked inside and asked two
employees just inside the employee entrance to sign the peti-
tion, and they refused. Robertson indicated she then ‘‘went
around to the even clock’’ and three employees signed the
petition before they clocked in, and she then went to a point
just outside the paint department and talked to a girlfriend
for ‘‘no more than five minutes’’ and then proceeded past
the paintroom and into the front office with her daughter to
get her paycheck. During cross-examination Robertson ad-
mitted that she could have obtained her paycheck from the
receptionist’s window by coming in the front (lobby) door,
where visitor’s parking is just outside, but that she used the
employee entrance ‘‘by habit.’’ Robertson testified she then
left the front office and saw employee Brad Oliver, who was
standing 20 feet from the door to the front office but not in
a work area, and she talked to him for about 10 minutes, and
then proceeded to leave when Schuster came up and asked
her if in fact she had a petition. Robertson related that she
admitted she had the petition and told Schuster that she
planned to submit it to Plant Manager John Rainone, after
which Schuster commented, as they were walking outside,
that she would have to stop fighting other people’s battles.
Robertson indicated that her daughter was getting upset, and
Schuster then said that they ‘‘would continue this on Mon-
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
113 A diagram of the plant layout, drawn by Robertson from mem-
ory and admittedly not to scale, was admitted into evidence, and
Robertson traced her path thereon while in the plant on November
2.
114 Black was discharged in part because he could not control Rob-
ertson and was obviously bitter over the matter and loyal to Robert-
son. This, I find, affected his credibility at times. Black was defi-
nitely not a ‘‘company man,’’ even before his discharge, and he tes-
tified that he was not bitter at MTD, but was ‘‘with a few bad eggs
in it.’’ He appeared to take the complaints about Robertson very per-
sonally, and devised the defense that the complaints were blown out
of proportion, and that MTD was out to get Robertson. The term
‘‘union’’ does not appear in Black’s testimony and he advanced no
real reason as to just why MTD was out to get Robertson.
115 Quality Control Manager Dick Roll had left MTD and was
working for another company in Ohio. He did not testify in the case.
116 Although Black signed the evaluations as ‘‘foreman,’’ near the
top of the form is a space entitled ‘‘FOREMAN,’’ with the name
Dick Roll written in. Black testified that he filled in the middle part
of the evaluations which required only checkmarks or an ‘‘X.’’ On
all three evaluations, Black’s markings indicated that Robertson’s
day’’ [the next weekday], indicating that she was ‘‘in trou-
ble’’ and it was ‘‘out of his hands,’’ whereupon she left the
plant. Robertson testified that Schuster did not tell her then
that she violated any rule against employees entering the
plant while on suspension, did not tell her that she had inter-
fered with work being performed in the plant, and did not
mention the wearing of safety glasses, or the fact that her
daughter was with her. Neither Robertson or her daughter put
on safety glasses when they entered the plant, and on cross-
examination Robertson conceded she know that MTD had a
rule about wearing safety glasses in the plant. Robertson in-
dicated that while she was at the plant, she did not go into
any area where work was being performed, and at all times
her daughter was at her side, adding that she had seen Super-
visor Ben Gregg bring his kids into the plant without wear-
ing safety glasses, and another employee bring her child into
the plant, and she had insisted that the child wear safety
glasses.113 Robertson testified that on the morning of No-
vember 4 she learned that Schuster had tried to reach her by
phone, and she in turn called Schuster at about 10 a.m. and
Schuster told her she was fired, adding that the reason was
the petition and not her work performance, and he would
give her a good reference. According to Robertson, Schuster
also stated that the petition was against company policy and
rules, and her discharge ‘‘had come from . . . higher up.’’
On cross-examination Robertson conceded that Schuster also
gave, as reasons for her termination, the fact that she was in
the plant while on suspension and the violation of safety
rules. Robertson testified that people had sold candy bars and
Tupperware in the plant, and also circulated baseball and
football pools in the plant. Robertson related that she went
to the plant at 3 p.m. that day (November 4) to get personal
things from her file, but Schuster told her that the only
things in her file belonged to MTD, Robertson adding that
her discharge was not discussed. Robertson testified that at
her 90-day review, Quality Control Supervisors Dick Roll
and Jim Black told her she was doing a good job, and ap-
proximately 2 weeks before the election Superintendent Ben
Gregg told her that the quality of her work was very good.
James H. Black was hired by MTD on February 13, 1985,
as a quality control inspector. In June or July 1988 he was
promoted to a foreman in quality control on the night shift,
where Robertson worked. Black was discharged on Novem-
ber 2, 1988, the the first full day of Robertson’s suspension.
As foreman, Black was responsible for his own job, and also
was responsible for two other inspectors, one of which was
Robertson. Black testified that Robertson’s ‘‘main stage of
work’’ was a room adjoining the press area, and she was re-
sponsible for the parts that came off the presses in the press-
room. Black indicated that some of the parts that came off
the presses ‘‘required other additional work,’’ requiring Rob-
ertson to check the course of a part in the spot welding de-
partment, the mig welding department, or in the paint spray
booth. According to Black, Robertson was required to go to
or through mig welding sometimes two or three times a
night, and sometimes not for a week, depending on what was
being run on the presses. During cross-examination, Black
conceded that Robertson had to go to mig welding only
‘‘once in a while,’’ and that ‘‘her mostly main reason’’ for
leaving the press room was to go to spot welding. Black tes-
tified that all that separated mig welding from the assembly
line was a red line on the floor, and on the mig welding side
of the line was a smoking area, and although against com-
pany rules, his inspectors and people from the assembly line
could ‘‘grab a quick smoke there, instead of having to wait
until a break or something.’’ Black testified that from time
to time ‘‘visitors’’ came through the plant and also ‘‘family
members,’’ who sometime were ‘‘escorted through by their
people,’’ and sometime they brought a meal to an employee,
but ‘‘[n]ot very often,’’ adding that on Friday nights they
would sometimes have pizza delivered to the cafeteria. Black
also indicated that Girl Scout cookies were sold in the plant
during worktime, breaktime, and lunch hour. In his cross-ex-
amination, Black testified that there came a time when Weld-
ing Supervisor Kevin Rogers complained about Robertson in-
terrupting the mig welders, but Black claimed Robertson
‘‘was being pushed,’’ and they were ‘‘trying to sort out
Penny here,’’ thus he began to ‘‘escort’’ Robertson through
the plant. Black conceded that Robertson went to mig weld-
ing on personal business, and had a boyfriend there, but
Black contended that Rogers (and others) ‘‘blowed up’’ the
situation. Black also conceded that Pressroom Supervisor
Dwight Emerson would complain that that he could not find
Robertson, but Black claimed that Emerson was trying to set
up Robertson, and had been told ‘‘If you even see her leave
the department, complain about it.’’114 Black testified that
Robertson was no different than any other employee, and
that he had no complaints about her work. Black indicated
that he felt like a regular employee with a job to do the same
as Robertson, and ‘‘they just tacked on the foreman job on
[him],’’ a job he had refused three times earlier. Black testi-
fied that Robertson’s actual supervisor was Quality Control
Manager Dick Roll, who would sometimes make complaints
about Robertson’s work, and he would mention it to Robert-
son, but he never prepared or participated in any of her re-
views and was not consulted prior to her discharge. In cross-
examination Robertson’s reviews (30, 60, and 90 days) as a
quality control inspector were shown to Black, and reflect
that he in fact signed them (on 4–8–88, 5–5–88, and 6–15–
88). While acknowledging his signature, Black maintained
that the ‘‘Remarks’’ section on all three had been filed out
by Roll.115 Except for the ‘‘Remarks,’’ two of which Black
agreed with, the evaluations were good.116
757MTD PRODUCTS
work was satisfactory, that she was progressing, her attitude was
good, and retention was recommended. On the 30-day evaluation,
Roll’s remarks read ‘‘Penny needs to concentrate her work habits in
a safer manner. I have counseled her about this on 4/7/88.’’ The 60-
day evaluation contains the remarks ‘‘Continues to have trouble with
SPC charts. Has been counseled twice on this matter. Must show im-
provement in next 30 days.’’ The 90-day evaluation contains the re-
mark, ‘‘Penny needs to make a concentrated effort to improve her
SPC charting.’’ Black agreed with Roll’s remarks on the 60- and 90-
day evaluations, but questioned Roll’s remarks on the 30-day evalua-
tion.
117 Oliver had composed a rough diagram of the plant and during
some of his testimony he referred to it, pointing out where he and
Robertson were when they talked. From the diagram, their best
placement would be in a ‘‘main aisle’’ along an inside far corner
of the loading or shipping dock area.
118 Rainone elaborated that the requirement for wearing safety
glasses pertained to ‘‘manufacturing,’’ ‘‘service’’ and ‘‘stock’’ areas.
During her cross-examination, Robertson admitted that she knew
MTD’s rule regarding safety glasses.
119 The Employee Handbook and Plant Rules do not mention safe-
ty glasses specifically. Rule 24 makes ‘‘Failure to use or wear safety
equipment prescribed for the job’’ a violation, and Rule 29 makes
the ‘‘Disregard of safety rules or common safety practices’’ a viola-
tion. During his cross-examination, Rainone explained that visitors
to the plant would get their safety glasses from their ‘‘guide.’’
120 During his testimony, General Manager Rainone had identified
a scale drawing of the plant, and Schuster referred to that drawing
during a portion of his testimony. However, in my opinion
Schuster’s testimony, as it appears in the record during his use of
the drawing, is lacking in sufficient specifics to accurately locate on
the drawing where Robertson and her daughter were, other than in
the ‘‘main aisleway’’ of the plant where, according to Schuster,
other employees were working in the area.
121 In cross-examination, Robertson maintained that she held her
daughter’s hand the entire time she was in the plant.
Jeffrey Brad Oliver was a current MTD employee where
he had worked as a mig welder since November 1987. Oliver
testified that on November 3, 1988, as he was clocking in,
he saw Robertson and her daughter in the plant at about 3:15
p.m. just before the start of the second shift (3:30 p.m.). Ac-
cording to Oliver, he heard Robertson ‘‘holler’’ at him and
he went over and they talked for about five minutes in the
shipping area, where forklifts were loading trucks.117 Oliver
apparently did not consider the shipping area a ‘‘work’’ area,
and he testified that he had not yet started to work, and as
he was leaving Robertson to go to his work area he saw
Schuster who was walking towards Robertson. Oliver testi-
fied that he knew Robertson had a petition with her but she
did not ask him to sign it. Oliver indicated ‘‘on a few occa-
sions’’ in the past he had seen assembly line employees in
the mig welding area talking and ‘‘sneak’’ a cigarette. Oliver
testified that his foreman wore safety glasses, but he wore
a helmet that protected his eyes, adding that when he took
his helmet off he would wear safety glasses. Oliver was
asked if he had ever observed employees who were not on
duty come into the plant without wearing safety glasses, to
which he answered, ‘‘Maybe on a few occasions . . . I really
don’t recall that.’’ On cross-examination Oliver indicated that
he and Robertson were ‘‘very good friends’’ and that he had
dated her on and off for about 1-1/2 months beginning in
mid-September 1988. Oliver testified that on a ‘‘few’’ occa-
sions Robertson would come into his mig welding booth and
talk about personal matters, later adding that she did come
to mig welding in her capacity as a quality control inspector,
and the frequency depended upon what parts the pressroom
was running.
Ronald Rogers had worked for MTD since October 1986,
and was a quality control inspector in welding, under Super-
visor Dick Roll. Rogers testified that about 1:30 p.m. on No-
vember 4, 1988, Roll called all of the day-shift quality con-
trol employees (six or seven) together and told them that
Robertson had been fired because she was in the plant with
her daughter without safety glasses, ‘‘going up and down the
assembly line with a petition for Jim Black’s job, to try to
get it back.’’ According to Rogers, Roll also commended
Robertson for trying to get Black’s job back, but added that
the petition ‘‘was against the law and wrong.’’
General Manager John Rainone testified that Robertson
was discharged on the recommendation of Personnel Director
Schuster for ‘‘several’’ rules violations including ‘‘being out
of her work area with great regularity’’ for which she was
suspended, coming back into the plant through the employee
entrance with a young child without wearing safety glasses
and while on suspension, and also distributing a petition after
she had been specifically told not to enter the plant during
the suspension, which Rainone characterized as ‘‘insubor-
dination.’’ Rainone testified he knew that Robertson sup-
ported the Union because he had seen here passing out union
literature at the gate, but Rainone added that Robertson’s
union support did not come up in his discharge discussion
with Schuster and Vice President Mike Murray (in Cleve-
land). Rainone indicated that employees come to work and
first go to their locker on the second floor (near the break
or lunchroom), and when they come back down the stairs
and enter the plant area they are required to wear safety
glasses at all times until they go back up to the breakroom
or leave the plant.118 Rainone testified that visitors, who
come into the plant with authorization, and vending machine
people and any other ‘‘recurring’’ individuals who come into
the plant are all required to wear safety glasses. Rainone
conceded that on occasion visitors do get into the plant with-
out safety glasses, ‘‘but we track them down pretty quick
most of the time.’’119 Rainone indicated that employees and
supervisors have brought friends or family into the plant, but
only after receiving authorization from either him, Factory
Manager Gido, Personnel Director Schuster, or Night-Shift
Superintendent Mosley.
Personnel Director James Schuster testified he rec-
ommended that Robertson be terminated based on ‘‘docu-
ments that were in her personnel file, at the time, as well as
[his] conversations with employees and other foremen and
supervisors.’’ Schuster indicated that the final incident that
resulted in Robertson’s termination was her ‘‘insubordina-
tion’’ in returning to the plant with her daughter while on
suspension during working time, and without wearing safety
glasses. Schuster testified that ‘‘in the 2:00[pm] range’’ he
was notified by employee Judy Gulledge that Robertson was
in the plant, and he then proceeded up the ‘‘main aisleway
of the plant’’ and saw Robertson standing to the right of the
aisleway with a tablet and pen in her hand talking to employ-
ees, some of which ‘‘scattered’’ when he approached.120
Schuster added that he also saw Robertson’s child ‘‘crossing
the aisle unattended’’ and coming over to Robertson’ side,
thereafter taking her mother’s hand.121 Schuster testified that
when he came up to Robertson he asked what she was doing,
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
122 Schuster was asked if the no solicitation rule was the same for
supervisors, and Schuster replied that supervisors and management
were under a different set of rules and are ‘‘supposed to understand
right from wrong, and when to do things and when not to do
things.’’ Former employee Billy Summers, who had worked for
MTD in various jobs from 1985 to early 1988, testified that he had
seen supervisors bring their ‘‘wives, girlfriends, or friends’’ through
the plant, and also their kids, and that he had also seen truck drivers
pulling up to the loading docks, and ‘‘if they had their wives or
girlfriends, they usually took the 15 cent tour.’’ Summers further tes-
tified that he had seen a lady named Hazel, who was on a 6-month
leave, come into the plant with her 18-year-old son.
123 A typed note ‘‘to file,’’ dated November 4, 1988, and signed
by Supervisor Richard Roll and Schuster, recites in part that Robert-
son, while on disciplinary layoff, was found in the plant on Novem-
ber 3, 1988, in an unauthorized area, with a small child, without
safety glasses and soliciting an unauthorized petition. Under ‘‘Rules
Violated’’ there appears the following:
Plant Rule #4—Insubordination—was told not to be in the plant
during disciplinary lay-off. Plant Rule #24—Failure to use or
wear safety equipment (glasses). Plant Rule #27—Unauthorized
soliciting of written matter, pledges, petitions, without approval.
Plant Rule #29—Disregard of safety rules by having a small
child in the work area without approval.
Under ‘‘Action taken’’ there appears ‘‘Termination of job effective
November 4, 1988.’’ Robertson’s state separation notice dated 11–
4–88 and signed by Schuster reads, under ‘‘circumstances,’’ ‘‘Dis-
ciplinary Problems—Violation of Plants Rules.’’
124 Schuster identified certain items from Robertson’s personnel
file, including her suspension notice dated November 2, and her dis-
charge notice dated November 4. Other items which referred to Rob-
ertson’s visits to mig welding are written notations (or reports) of
counseling or warnings as follows: October 6, from Second-Shift
Pressroom Supervisor Dwight Emerson; October 10, from Super-
intendent of Fabrication Ben Gregg; October 13, from Quality Con-
trol Supervisor Dick Roll; October 21 and November 1, from Sec-
ond-Shift Welding Supervisor Kevin Rogers. The suspension notice
of November 2 was signed by Roll, Schuster, and Robertson, herself,
and reads in part as follows: ‘‘Her unauthorized visiting with the
Mig Welders during working hours disrupts both the welding depart-
ment and leaves the press room area without proper coverage.’’
and Robertson replied that she was circulating a petition to
get Jim Black’s job back. Schuster related he then pointed
out that he had told her not to come back to the plant during
her suspension, adding that she had brought her child without
permission, and they both were not wearing safety glasses,
to which Robertson replied she ‘‘couldn’t remember’’ that he
told her not to enter the plant during her suspension.
Schuster testified that they were standing in a ‘‘highly con-
gested area with a lot of forklifts, and the bins [were]
stacked pretty high,’’ and he thus suggested that they get out
of the work area and talk about it. Schuster indicated that
they then exited the plant through the employee door, with
Robertson holding one of her daughters’ hands, and he hold-
ing the other. Schuster related that when they were outside
he told Robertson that she had violated the no solication rule
in the handbook, and that he was concerned about her ‘‘in-
subordination,’’ and Robertson then asked if he was going to
fire her, to which he replied that he would ‘‘look at it’’ and
call her later.122 Schuster conceded that he made a remark
to Robertson about the fact that she could not afford to fight
Jim Black’s battles. Schuster indicated that he then looked at
Robertson’s file again and tried to reach her by phone, but
was unable to do so and he left a message, and the following
day (November 4) Robertson returned the call and he in-
formed her that she was discharged ‘‘for rules violations,’’
adding that ‘‘She knew . . . . We had talked about them
[the day before] going out the door.’’123 Schuster testified
that all deliveries and visitors come to him first, except for
‘‘pre-authorized’’ deliveries (vending and soft drink people),
and they all are required to wear safety glasses, adding that
some have their own. Schuster indicated that when he sus-
pended Robertson for 3 days he told her not to return to the
plant, that her timecard had been pulled, and that if she had
to return to the plant for any reason, to come through the
front or lobby entrance and have the secretary page him. Ac-
cording to Schuster, all suspended employees are told this for
‘‘a lot of reasons,’’ including ‘‘Workmen’s Compensation.’’
Regarding Robertson’s suspension on November 2,
Schuster testified that Robertson had been warned ‘‘on nu-
merous previous occasions for being out of her work area,’’
and that after he checked her file, ‘‘talked to people about
it,’’ and talked to both Pressroom Foreman Jim Black and
Robertson, herself, he decided to suspend Robertson for 3
days. Schuster testified that Second (Night) Shift Supervisor
Dwight Emerson had talked to him on several occasions
about Robertson leaving and going to the welding area, and
Superintendent Ben Gregg had complained that Robertson
had not been in the pressroom when he needed her. Schuster
testified there came a point when he had heard from ‘‘so
many people that [Robertson] was out of her work area vis-
iting’’ that he finally talked to her immediate supervisor,
Foreman Jim Black, and Black conceded that other foremen
and supervisors had been notifying him about the problem,
and also conceded that after repeated talks with her he could
do nothing about it. According to Schuster, he then told
Black ‘‘that it’s going to end up costing him his job,’’ and
Black responded, ‘‘She just won’t listen to me.’’ Schuster
testified that while he and Black were talking, Robertson
walked into the office and he and Black brought up the sub-
ject, and Robertson ‘‘admitted that she had been in there’’
but claimed that she was not stopping production and was
not trying to cause anybody any trouble, adding ‘‘they were
friends of her’s in there [the welding dept.], and she just
dropped in there to talk to them.’’ Schuster indicated that he
then told Robertson to stay out of the welding department,
as she already had some notes in her file about it, and that
it was going to be a problem if it continued, and Robertson
stated that she would ‘‘stay out of there.’’124 Schuster testi-
fied that he ‘‘felt like’’ Robertson supported the Union, but
this had nothing to do with her suspension or termination.
Regarding the discharge of Robertson’s foreman, Jim
Black, on November 2, Schuster testified that Black was dis-
charged ‘‘for failure to perform his job’’ in that he lacked
the ability to lead people, had trouble passing on instructions
given to him by the first-shift foreman, and tried to do every-
thing himself, adding that the problem with ‘‘managing’’
Robertson was also ‘‘a pretty big factor.’’
Superintendent of Fabrication (over the pressroom and the
welding department) Ben Gregg acknowledged his written
counselling of Robertson on October 10 about her visits to
the welding department. Gregg also acknowledged that he
had complimented Robertson for doing a good job ‘‘like any-
body else . . . when they did good jobs.’’ But Gregg testi-
fied that MTD did not tolerate employees going into other
759MTD PRODUCTS
125 Gulledge placed various markings on the same to scale drawing
of the plant that Schuster referred to in his testimony, and these
markings were more clear or definitive regarding actually where
Robertson entered the plant, through the employee entrance. The
main (lobby) entrance and the front office area were also clearly
marked on the drawing by Gulledge, and her testimony with ref-
erence to the drawing establishes Robertson’s path in the plant.
126 In the transcript, the word ‘‘caught’’ appears incorrectly as
‘‘cost,’’ and the correction is hereby made. Emerson testified that
they make ‘‘a lot of gauge checks’’ and parts were put into a ‘‘fix-
ture’’ in the quality control area of the pressroom to check toler-
ances.
127 Robertson testified that on one occasion she ‘‘separated some
parts over in the mig welding area,’’ and denied that she thereafter
wandered in and out of the welding booths talking to people.
128 Emerson identified that note, which was written in longhand
and signed. The note was placed in Robertson’s personnel file after
he and Ben Gregg had discussed the problem about Robertson, and
how to handle it. The note, which was shown to Robertson, reads
in part as follows: ‘‘On Thursday, Oct. 6, 1988, I counseled Penny
Robertson on being in her work area. . . . Mainly to be in the press
room at all times unless job related business required her to be out
of the department or her breaks or supper.’’ The note also recites
that Robertson had been told before to stay in her department, but
that she continued to go to other departments. On cross-examination,
Emerson was asked if he remembered where Robertson was on Oc-
tober 6, and he replied, ‘‘The only area that we’d ever find her [sic]
would be in there talking with the mig welders. . . . That’s where
she spent her time out of the Pressroom.’’
129 Wayne Boyd and David Jones did not testify in the case. As
earlier noted, mig welder Brad Oliver did testify, and indicated that
Continued
departments on personal business during working hours, and
when it happened he would normally only have to tell the
employee one time, but in Robertson’s case it was different
and she was told by other supervisors and himself. Gregg in-
dicated that Robertson’s job required her to go to the spot
welding department from once to three times a month, but
not ever to mig welding. Gregg testified that sometime after
5 p.m. on the day she was suspended, Robertson called him
at the plant and asked if she could come to the plant and
get her paycheck, to which he replied that ‘‘she could come
the next day in the main lobby and ask the receptionist for
her check.’’ Gregg denied that he told Robertson she could
enter the production area of the plant, or bring her child into
the plant. Gregg testified that company rules required that
visitors to be escorted by a ‘‘foreman or a manager and wear
proper safety equipment.’’
Judy Gulledge testified as a present employee of MTD
where she had worked in the assembly department for over
3 years, currently as a foreman. Gulledge observed Robert-
son enter the plant during her suspension, and testified that
as she arrived in the parking lot to clock in for work on the
second shift, she saw Robertson coming up through the park-
ing lot and enter the plant right in front of her, through the
employee entrance. Gulledge related that as she was about to
clock in, Robertson ask her to sign a petition to get Jim
Black’s job back, and she refused. Gulledge testified that she
started to go up to the breakroom but changed her mind and
headed for the ‘‘line’’ when she again saw Robertson ‘‘in an
intersection between the front office and the assembly line,
coming toward the assembly line,’’ in the opposite direction
from the front office. Gulledge indicated that she then de-
cided that Schuster ‘‘needed to know’’ that Robertson was
in the plant with her little girl, because it was her under-
standing that when on suspension, employees were not sup-
posed to be in the working area of the plant, which was any
point past the front office, adding that the front office has
its own (main) entrance door. Gulledge testified that she then
went to Schuster’s office and he was not there, but that his
secretary paged him and she talked to Schuster and informed
him over the phone, and as she returned back out into the
plant, she saw Robertson walking closer to the shipping area,
talking to several people on the way.125 On cross-examina-
tion, Gulledge testified she knew Robertson was on suspen-
sion because it was ‘‘common knowledge’’ in the plant.
Gulledge also indicated that Robertson did not ‘‘get all the
way’’ to the assembly line, and that during the time she ob-
served Robertson, her daughter was ‘‘by her side.’’
Dwight Emerson testified as the present supervisor over
shipping and receiving at MTD. Between March and Novem-
ber 1988 he was a second-shift pressroom supervisor. Emer-
son testified that Robertson came to the pressroom on his
shift as an inspector, under Foreman Jim Black, and her job
was to ‘‘keep a check on all the parts and to ensure that we
didn’t have any defective ones.’’ Emerson added that if they
were running bad parts and it was not caught, it would cost
the Company.126 Emerson testified that the problem with
Robertson was finding her, and that ‘‘when we would have
a question or something would go wrong, it was finding
where she was . . . [s]he was not in her department.’’ Emer-
son indicated that Robertson’s work place was in the press-
room, and between the summer and fall of 1988, he would
personally have to go and find her, and most of the time she
would be in the mig welding department in either the
‘‘booths’’ with the welders or in the ‘‘aisle’’ talking.127
Emerson testified that Robertson’s duties in the pressroom
never required her to go to the mig welding department, and
only ‘‘occasionally’’ to the spot welding department or to
‘‘Assembly.’’ Emerson related that he talked to Robertson
‘‘several times’’ about the problem, and she would agree to
stay out of mig welding, but she never did. Emerson indi-
cated that on most occasions he would just talk to Robertson
but that on one occasion he made a note about a conversa-
tion.128 Emerson testified that he talked about the problem
first with Robertson’s immediate Supervisor Jim Black, and
after nothing happened, he then talked to his Supervisor Ben
Gregg, and to Welding Department Supervisor Kevin Rogers,
but the problem continued. Emerson estimated that between
two and six times per shift he could not find Robertson when
he needed her. Emerson indicated that he knew Robertson
supported the Union, but that this support had nothing to do
with his counseling of her.
Kevin Rogers testified as a present employee of MTD, and
a second-shift supervisor in the pressroom. From August
through November 1988, he was a second-shift supervisor
over the mig and spot welding departments. Rogers testified
that Robertson’s work area was in the pressroom, and al-
though she had no job related reason to come mig welding,
starting in early September she came there to talk to either
Wayne Boyd, David Jones, or Brad Oliver in their ‘‘booth,’’
which was their work area. Rogers testified that he would
ask Robertson ‘‘what the problem was,’’ and she always in-
dicated that she had no business there, other than she just
wanted to talk. According to Rogers, Robertson was dating
both Boyd and Oliver.129 Rogers testified that he would ask
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he dated Robertson ‘‘for about a month and a half’’ beginning in
the middle of September, and that they were still very good friends.
Oliver testified that Robertson would come into his booth and talk
about personal matters on only a ‘‘few’’ occasions and, contrary to
Schuster, Gregg, Emerson, and Rogers, Oliver testified that Robert-
son was required to be in mig welding to check parts. Robertson be-
came engaged to mig Welder Wayne Boyd.
130 This ‘‘documentation’’ was written on an employee conference
report form, dated October 21, 1988, and checked were ‘‘counsel-
ling,’’ ‘‘Verbal warning,’’ and ‘‘Written warning.’’ In it Rogers
states in part that he had asked Robertson not to bother the mig
welders, and had gone to Jim Black about the problem, both without
success, and that again today he had asked Robertson to leave mig
welding, and as she was leaving she stated, ‘‘O [sic] I didn’t know
you was watching me.’’ Rogers testified that he did not show the
document (or report) to Robertson, but he told her that he was
‘‘going to write this up and turn it into the Manager of Quality Con-
trol.’’
131 Roll did not testify in the case. Gailey did testify but was never
questioned about Robertson’s time spent away from the pressroom.
132 This writeup was in the form of a written warning on an em-
ployee conference report, dated November 1, and reading in part ‘‘I
have asked to leave the mig welders alone several times. . . . But
she continues to go from booth to booth disrupting the mig welding
department. . . . Tonight I had to ask her twice to leave the mig
welding department.’’
Robertson to leave and she would be back within 2 hours,
adding that he ‘‘couldn’t do anything with her.’’ Rogers indi-
cated that he then talked to Pressroom Supervisor Dwight
Emerson, explaining that Robertson was disrupting produc-
tion in his department, and Emerson indicated that he had his
own problems with Robertson. Rogers testified that he then
went to Jim Black, but the problem continued and he then
‘‘documented’’ the problem and gave it to Quality Control
Manager Dick Roll.130 Rogers indicated that he then went to
Roll and Roll’s foreman, Robert Gailey, and yet the problem
still continued,131 and on November 1 he again wrote Rob-
ertson up, letting Roll, Gailey, and Black know that he still
needed their help regarding Robertson.132 The following day
(November 2), Black was discharged and Robertson was on
suspension. Rogers testified that he knew Robertson sup-
ported the Union, but that this support had nothing to do
with his warnings to Robertson, or his complaints about her.
Rogers indicated that ‘‘occasionally’’ people from assembly
would smoke in the welding area, but would never bother the
welders or go into the welding booths.
2. Robertson conclusions
Robertson was a strong, outward, and known union sup-
porter both prior to the first election (July 30, 1987) and the
second election (October 21, 1988). MTD strongly opposed
the Union, and Robertson was suspended and discharged on
the heels of the second election. Given these facts, and ini-
tially assuming the testimony of Robertson, former Quality
Control Foreman Jim Black, and mig welder Jeffrey Oliver
to be true, I find that under the test in Wright Line, 251
NLRB 1083, the General Counsel made a prima facie show-
ing that Robertson’s union activity and support was a moti-
vating factor for her suspension on November 1 and her dis-
charge on November 4. The burden thus shifts to MTD, to
demonstrate that the suspension and discharge of Robertson
would have taken place even in the absence of her union ac-
tivities and support. I so find in this case.
There are major conflicts in the testimony in three areas:
(1) whether Robertson’s job duties required her to go to mig
welding; (2) the frequency of Robertson’s visits to mig weld-
ing; and (3) whether Robertson was told not to enter the
plant work area while on suspension.
Robertson was basically an honest person who, in the be-
ginning, avoided lying by staying away from the subject or
skirting around it to the extent possible, which would some-
times result in inconsistencies. When things closed in on her
and a definite yes or no was required, Robertson was
untruthfull on occasion. Regarding her job duties, Robertson
testified first that she was required to go to mig welding
once an hour to check ‘‘deck handles,’’ and later the reason
was to see that ‘‘holes were precise,’’ and still later to check
‘‘brackets.’’ Robertson later conceded that sometimes she
went to mig welding on personal business or to talk to
friends. Robertson also related that she dated mig welders
Oliver and Boyd, and became engaged to Boyd, and that be-
ginning in September when she started dating Oliver, she
was told to stay out of mig welding by Pressroom Supervisor
Emerson, Quality Control Foreman Black, Mig and Spotting
Welding Supervisor Kevin Rogers, Superintendent Gregg
(over all welding and the pressroom), and by Schuster, him-
self. Emerson testified that Robertson never had to go to mig
welding, that her work place was in the pressroom, and be-
tween two and six times each shift he could not find Robert-
son when he needed her. Former Quality Control Foreman
Black, who I discredited earlier herein, testified that Robert-
son was required to go to mig welding ‘‘once in a while,’’
and that her main work area was a room adjoining the press-
room. Rogers, Gregg, and Schuster all testified that Robert-
son’s job never required her to go to mig welding. I find that
Robertson’s job in the pressroom did not require her to go
to the mig welding department, and I discredit Robertson’s
and Black’s testimony to the contrary.
Regarding the frequency of Robertson’s visits to mig
welding, Robertson herself testified she went there once an
hour. Other testimony put the number from a ‘‘few’’ times
to six times per shift. The average from the testimony would
place Robertson in mig welding at least five or six times per
shift, and I so find. From the testimony and evidence, I fur-
ther find that Robertson’s visits to mig welding were disrup-
tive to the mig welding department and caused serious prob-
lems in the pressroom.
Robertson testified that Schuster did not tell her to stay out
of the plant during her suspension. Schuster claimed he did,
as he always had done with employees on suspension. As-
sembly line employee Gulledge, who saw Robertson and her
daughter enter the plant through the employee entrance, testi-
fied that she knew Robertson was on suspension, and knew
suspended employees were not supposed to be in the plant,
so she reported Robertson’s presence to Schuster. The pre-
vious day (November 1), after she had been suspended and
left the plant, Robertson telephoned the plant and talked to
Gregg about her pay check, and Gregg told her she could
pick her check up the following day in the front office,
which had its own separate front entrance. During her testi-
mony Robertson was asked why she used the employee en-
trance, and she answered, ‘‘By habit,’’ an answer which in
my opinion was very telling. Robertson conceded that Gregg
used the term ‘‘front office,’’ and acknowledge that she in-
tended to get employees to sign the petition she brought with
761MTD PRODUCTS
133 290 NLRB 1115 (1988).
her to get Jim Black’s job back. I find that the area mainly
traversed by Robertson while in the plant was a ‘‘work’’
area, containing bins piled up, finished product, and oper-
ating forklifts. I also find that Schuster did tell Robertson not
to enter the plant during her suspension, that Robertson knew
she should not be in the plant’s work area around other em-
ployees, and that she knew about the front entrance which
she could use to obtain her paycheck. I thus find that Robert-
son intentionally disregarded the legitimate instructions of
Schuster and Gregg for the purpose of obtaining employee
signatures on her petition. Schuster and Plant Manager
Rainone labeled Robertson’s conduct as ‘‘insubordination,’’
and I agree. Robertson and her daughter also did not put on
safety glasses, and Robertson of course had no permission to
bring her 4-year-old daughter into the plant. I find that both
the glasses and the permission were required. Robertson con-
ceded that she knew the rule regarding safety glasses.
I find and conclude that Robertson’s suspension and dis-
charge were justified, and would have taken place even if
Robertson had never supported the Union. I shall thus rec-
ommend that paragraphs 14 and 15 of the amended consoli-
dated complaint, as they pertain to Penny Robertson, be dis-
missed.
L. The Nickles Bakery Issue
In all three of the charges filed herein, there is alleged
only 8(a)(3) violations against the individuals concerned
(Robertson, charge filed Nov. 30, 1988, Brasfield, charge
filed May 3, 1989, and Reid, charged filed June 6, 1989).
When the complaints were issued, numerous alleged 8(a)(1)
violations also appeared. The first complaint (Robertson)
contained two 8(a)(1) violations, both allegedly occurring
within 6 months of the Robertson charge (Nov. 4, 1988, and
Oct. 21, 1988). The second complaint (Brasfield) contained
seven 8(a)(1) violations, two of which were dismissed on the
merits during the hearing, and the remaining five allegedly
occurred within 6 months of the Brasfield charge (Nov. 4,
1988, Jan. 1989, and Feb. 28, 1989). The third complaint
(Reid-the amended consolidated complaint) contained 10
8(a)(1) violations reaching as far back as ‘‘in or about late
May 1988’’ and ‘‘in or about September 1988.’’ Three of the
‘‘in or about September 1988’’ 8(a)(1) allegations were with-
drawn by motion of the General Counsel, leaving seven
8(a)(1) allegations remaining, five of which occurred well
beyond the 6-month period following the charge. These alle-
gations appear in paragraphs 7(a) and (b), and 8(a), (b), and
(c) of the amended consolidated complaint. Reid’s testimony
(the only evidence presented by the General Counsel) places
these five allegations in August and September 1988, still be-
yond the 6-month period following the charge.
The remaining two-third complaint 8(a)(1) allegations are
alleged in the complaint to have occurred ‘‘in or about Feb-
ruary 1989,’’ but the testimony of the General Counsel’s
only witness (Ronald Rogers) places the alleged violations
‘‘a short time right after the election last year’’ (October 21,
1988), or the ‘‘week right after the election’’ and ‘‘close’’
to the election. MTD’s witness (Galey) places the incident
‘‘About two days after [the election].’’ The two allegations
involved here are found in paragraphs 11(a) and (b) of the
third (amended consolidated) complaint and appear to also
fall outside the 6-month period following the third charge.
These two allegations were the basis for the only two viola-
tions initially found in the case. I can not (and should not)
stretch Rogers’ testimony to reach October 28, 1988, or be-
fore, to be within 6 months after the filing of the third
charge. The burden of establishing these violations by a pre-
ponderance of the evidence is on the General Counsel, and
there is no explanation in the record as to why the complaint
date is ‘‘in or about February 1989.’’
In Nickles Bakery, 296 NLRB 927, the Board discontinued
its reliance on the ‘‘By the above and other acts’’ language
on the Board’s standard unfair labor practice charge form as
being procedurally sufficient support for particularized
8(a)(1) complaint allegations where there has been no show-
ing of factual relatedness between the complaint allegations
in question and the underlying unfair labor practice charge.
In Nickles the Board further stated it would require a factual
nexus between the charge and complaint allegations in all
8(a) cases, and it would apply the ‘‘closely related’’ test set
forth in Redd-I, Inc.,133 to 8(a)(1) allegations. However, there
is a first and initial test. The newly added complaint allega-
tions must allege violations which occurred within 6 months
from the date of the timely filed charge, and if not, they are
time-barred by Section 10(b) of the Act. See Redd-I, Inc.,
supra. Under this initial test, I shall thus recommend that the
alleged 8(a)(1) violations contained in paragraphs 11(a) and
(b) of the amended consolidated complaint be dismissed.
As to newly added complaint allegations which occurred
within 6 months following a timely filed charge, under Redd-
I, Inc., supra, these new allegations are not time-barred if the
are ‘‘closely related’’ to they allegations in the timely filed
charge. In Redd-I, Inc., the Board said that in applying the
‘‘closely related’’ test, it would look at the following factors:
First, we shall look at whether the otherwise un-
timely allegations are of the same class as the violations
alleged in the pending timely charge. This means that
the allegations must all involve the same legal theory
and usually the same section of the Act (e.g., 8(a)(3)
reprisals against union activity). Second, we shall look
at whether the otherwise untimely allegations arise from
the same factual situation or sequence of events as the
allegations in the pending timely charge. This means
that the allegations must involve similar conduct, usu-
ally during the same time period with a similar object
(e.g., terminations during the same few months directed
at stopping the same union organizing campaign). Fi-
nally, we may look at whether a respondent would raise
the same or similar defenses to both allegations, and
thus whether a reasonable respondent would have pre-
served similar evidence and prepared a similar case in
defending against the otherwise untimely allegations as
it would in defending against the allegations in the
timely pending charge. [290 NLRB at 1118.]
Having cited and discussed Board law on the subject of
newly added complaint allegations, I find it nearly impos-
sible to apply the law hypothetically in this case. Expect for
the two Galey allegations found above to be outside of the
6-month period following the charge (pars. 11(a) and (b) of
the amended consolidated complaint) and the invalid no-
solication rule allegation (par. 12 of the amended consoli-
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dated complaint), I found no 8(a)(1) violations based almost
entirely on credibility resolutions. I also found that Robertson
and Brasfield were not unlawfully suspended and discharged,
and that Reid was not unlawfully discharged. From these
findings, and from the overall record, I conclude that while
MTD had an overall plan to resist the Union’s organizing at-
tempts (which is had a perfect right to do), the plan did not
include resistance at any cost, or the inclusion or anticipation
of unfair labor practices under the Act. Additionally, there
was no plan or intent by MTD to rid itself of all (or certain)
employees who supported the Union. I thus choose not to
speculate on what my conclusions would have been had vio-
lations been found regarding some (or all) of the added
8(a)(1) allegations. Simply put, the Nickles Bakery issue no
longer exists in this case. In retrospect, I concede that my
early ruling (during the hearing) on MTD’s Nickles Bakery
motion was hasty or premature.
CONCLUSIONS OF LAW
1. That the Respondent Employer, MTD Products, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. That the International Union, United Automobile, Aero-
space & Agriculture Implement Workers of America, UAW
is a labor organization within the meaning of Section 2(5) of
the Act.
3. That the Respondent Employer, MTD Products, Inc.,
has not violated the Act as alleged in the amended consoli-
dated complaint issued herein.
[Recommended Order for dismissal omitted from publica-
tion.]