Omark-RCBS

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 642 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Omark-RCBS, a Division of Omark Industries and
General Teamsters Local 137, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 20-
CA- 14443
September 30, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND PNEILO
On May 8, 1980, Administrative Law Judge Joan
Wieder issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel
filed a brief in opposition to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1' and conclusions of the Administrative Law
Judge and to adopt her recommended Order as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
' The Administrative Law Judge found, inter alia, that Respondent
violated Sec. 8(a)(1) of the Act by maintaining an overly broad no-solici-
tation and distribution rule. Chairman Fanning and Member Jenkins
agree with this finding for the reasons set forth ill their dissenting opinion
in Essex Internatlronal, Inc., 211 NLRB 749, 752 (1974). Member Penello
agrees that the no-solicitation rule is unlawful but does not rely on the
Administrative Law Judge's citing of Kern' Bakeries, 227 NLRB 1329
(1977). in which he dissented.
We do not agree, however, with the Administrative Law Judge's pro-
posed Order with respect to this violation and, accordingly, we shall
amend the Order and the appropriate paragraph of the notice to reflect
the proper remedy.
The Administrative Law Judge incorrectly provided that interest on
backpay due be computed at 6 percent per annum "in the manner pre-
scribed by the Board in Florida Steel Corporation, 231 NLRB 651 (1977)"
In Florida Steel Corporation, the Board set forth the manner in which the
rate of interest is to be determined. Accordingly, we shall amend the Ad-
ministrative Law Judge's "Remedy" by adding a period after "(1950)"
striking the words "and payment of 6 percent interest per annum," and
substituting the word "Interest," and by placing 6"" after the citation to
Florida Steel Corporation. In accordance with his dissent in Olympic Medi-
cal Corporation, 250 NLRB No. 11 (1980), Member Jenkins would award
interest on the backpay due based on the formula set forth therein
2 In par. 2(f) of her recommended Order, the Administratie aw
Judge incorrectly provided that Respondent be given 60 days within
which to notify the Regional Director what steps it has taken to comply
with the Order, whereas the correct time period is 20 days. Accordingly,
we shall amend par. 2(f) to provide for a 20-day time period
In addition, the Administrative Law Judge inadvertently failed to pro-
vide in her notice for the expungement from McCall's personnel file of
all references to his reprimands of February 28 and March I. 1979, and
his discharge of March I, 1979 Accordingly, e shall amend the notice
to employees to reflect this matter.
252 NLRB No. 89
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Omark-RCBS, Division of Omark Industries, Oro-
ville, California, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph (a):
"(a) Maintaining and enforcing any rule or regu-
lation prohibiting its employees from soliciting on
behalf of any labor organization on Respondent's
premises during nonworking time, or prohibiting
the distribution of union literature in nonworking
areas during nonworking time."
2. Substitute the following for paragraph 2(a):
"(a) Rescind its rule prohibiting its employees
while on its premises from soliciting on behalf of
any labor organization during their nonworking
time or distributing union literature in nonworking
areas during nonworking time."
3. Substitute the following for paragraph 2(f):
"(f) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WFE WIL. NOT maintain or enforce any rule
or regulation prohibiting our employees on our
premises from soliciting on behalf of any labor
organization during nonworking time or dis-
642
()MARK-RCBS
tributing union literature in nonworking areas
during nonworking time.
WE WI 1. NOT solicit employee grievances
and offer to try to resolve some of the griev-
ances during any union organizational cam-
paign for purposes of discouraging union ac-
tivities.
WE, WIL NOT implement job benefits for
the purpose of interfering with a union orga-
nizing campaign.
Wt Witl NOT discharge or otherwise dis-
criminate against you for engaging in activities
on behalf of General Teamsters Local 37, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or any other labor organization.
WE. Wtt.i. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
Wt: witl.. expunge from the personnel file of
Henry McCall all references to his reprimands
of February 28 and March 1, 1979, and his dis-
charge of March 1, 1979.
WE WILl rescind our rule prohibiting our
employees while on our premises from solicit-
ing on behalf of any labor organization during
their nonworking time or distributing union lit-
erature in nonworking areas during nonwork-
ing time.
WE WILL make whole Henry McCall for
any losses he may have suffered as a result of
our unlawful discrimination against him and
We will offer him immediate reinstatement to
his former job, dismissing, if necessary, anyone
who may have been hired to perform the
work which he had been performing prior to
the time he was terminated on March 1, 1979,
or, if such job no longer exists, to a substan-
tially equivalent position, without prejudice to
his seniority or other rights previously en-
joyed.
All our employees are free to engage in concert-
ed activities for the purposes of collective bargain-
ing or other mutual aid or protection. Our employ-
ees are also free to refrain from any or all such ac-
tivities.
OMARK-RCBS, A DIVISION OF
OMARK INI)USTRIES
DECISION
STAII [SI-NI OF ' IHI CASI-
JOAN VlllI!R, Administrative La's Judge: This case
was heard before me at Oroville. California. on Septem-
her 5, 6, and 7. 1979,1 pursuant to a complaint issued by
the Regional Director for the National Labor Relations
Hoard for Region 20 on May 31, and which is based
upon a charge filed by General Teamsters Local 137, In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union, on March 9. The complaint, as amended pursuant
to stipulated agreement, alleges that Omark-RCHS. In-
corporated, a Division of Omark Industries, herein called
Respondent or Company, has engaged in violations of
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended, herein called the Act.
Issues
Whether or not Respondent, during a union organizing
campaign, committed various violations of Section
8(a)(1) of the Act by coercing, interfering with, and re-
straining, including engaging in surveillance, creating the
impression of surveillance, soliciting grievances from em-
ployees, instituting a job bidding procedure, threatening
to discharge employees, and promulgating and discrimin-
atorily enforcing an unlawful no-solicitation and no-dis-
tribution rule. Also, did Respondent violate Section
8(a)(3) of the Act by imposing upon Henry McCall more
onerous working conditions, issuing to McCall a written
reprimand, and by discharging McCall.
All parties were given full opportunity to participate.
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were timely filed
on behalf of the General Counsel and Respondent.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS or FACT
I. RFSPONDENT'S USINESS
Respondent admits that it is an Oregon corporation
and, as here pertinent, is engaged in the manufacture and
distribution of ammunition reloading equipment at its lo-
cation in Oroville, California. It further admits that
during the past year, in the course and conduct of its
business, it has sold and shipped goods and materials
valued in excess of $50,000 directly to customers outside
the State of California. Accordingly, it admits and I find
that it is an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
I All Jdilt hereil refer o 197) unles, iothcrxis indicated
643
DECISIONS OF NATIONAL LABOR REIATIONS B()ARD
II. 'I il IlABOR OR(iANIZATION INVOI V(I)
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
111. TIHI. AlI l. (il.) UNFIAIR I.ABOR PRACTICES
A. Background
Omark Industries2 acquired the Oroville facility in
July 1976 from RCBS. It is undisputed that during No-
vember 1978, several employees discussed the possibility
of seeking union representation. Two of these employees,
Carolyn Denny and McCall, both indicated that a major
concern among employees actively advocating union
representation was the lack of a job-bidding procedure.
Jobbidding was one of the matters discussed during the
organizing campaign and McCall stated that there was
no potential of promotion unless an employee went out
drinking with or was a good friend of one of the supervi-
sors. Both Denny and McCall testified that prior to the
commencement of the organizing campaign they both,
individually and separately, discussed favoritism with
Jerry Jenkins, the admitted supervisor of the assembly
department.
Denny claims that in June 1978, while employed in
Respondent's assembly department 3 she complained to
Jenkins about an incident she regarded as favoritism
toward another employee. According to Denny, Jenkins
denied that any favoritism was shown. Denny then said
she told Jenkins, "Well, Jerry . . . well, when the union
gets in here . . . the seniority . . . we will go by senior-
ity list." According to Denny, Jenkins replied, "Well,
. . . I don't want to have anymore talk in the shop about
union." Jenkins denied having such a conversation with
Denny.
McCall stated that during November 1978, he dis-
cussed job bidding with Jenkins, complaining about the
favoritism McCall felt was being shown in selecting indi-
viduals for promotion, and opining that seniority should
"play a part in all aspects of employment." Jenkins re-
plied, "that if I didn't like it the way it was there at
RCBS' operations that I should go elsewhere. And he
also told me that he felt I was making waves, and he had
had enough." Jenkins denies having the conversation and
making the statement attributed to him by McCall at any
time.
It is uncontroverted that in November 1978, Denny
approached McCall and asked him if he would be will-
ing to sign a union authorization card. McCall said he
would. Denny then contacted the business manager of
the Union4 who agreed to attend a meeting at Denny's
house on December 7, 1978. This organizational meeting
I Omark is comprised of six operating divisions and the Oroville facili-
ty is a part of the Sporting Equipment Division which is headquartered
in Lewiston Idaho. As mentioned in Respondent's brief, presently at
only one of the Company's 18 locations are the employees represented by
a union
3 Denny left Respondent's employ prior to the instant hearing Inas-
much as the date of the incident was not within the allowable statutory
period, this evidence was offered only as background anid corroborative
testimony
4 Steve Ruckle.
was attended by McCall and about 15 other employees.
These employees complained about the use of favoritism
in filling vacancies. Also during this meeting, McCall
was solicited by others to serve as chairman of the in-
plant organizing committee. About a week later, a
second organizational meeting was held which was at-
tended by McCall and about 34 other employees. Au-
thorization cards were distributed and signed at this as
well as at the first meeting. On December 14, 1978, the
Union advised Respondents by letter that McCall had
been designated the chairperson of the in-plant organiz-
ing committee. A third organizing meeting was held in
January. McCall, during the organizing campaign,
handed out 40-50 authorization cards.6
B. Surveillance
As Respondent points out in the brief: 7 "Once the
Company was aware of the Union's interest, it took steps
to inform employees that the Company did not wish to
have a union in the Oroville plant."
According to McCall, 3 or 4 days after his conversa-
tion with Denny regarding his willingness to sign an au-
thorization card, he was approached by Jenkins while he
was working. Jenkins was said to have told McCall that
there had been a rumor about a union drive and "that if
I [McCall] saw any union cards or any petition circulat-
ing that he'd appreciate that I bring this information to
him immediately." McCall said he agreed to so inform
Jenkins but never imparted any information about the or-
ganizing campaign or other union activity to Jenkins or
any other supervisor. Jenkins denies asking McCall to
report to him on any union activity occurring at the
plant.
McCall also claims that on December 20, 1978, he re-
ceived a reprimand based on the allegation that he was
harassing an employee in an attempt to force her to sign
a union card and that, during the disciplinary meeting,
"Mr. Jenkins told me that if he saw me circulating any
union cards that I would be terminated immediately."
Jenkins denies making the threat.
Respondent avers that the two statements allegedly
made by Jenkins are so inconsistent as to require a con-
clusion that McCall is not credible and Jenkins did not
make the statements. It could be argued that Jenkins so-
licited the information prior to learning of McCall's
union sympathies and, only after McCall's sympathies
became known, Jenkins threatened him. However, in this
case, the parties stipulated that Respondent knew of
McCall's union leanings as a matter of general knowl-
edge since 1976.8 Jenkins was not shown to be excepted
from this stipulation; therefore, it is deemed highly im-
probable that he would have solicited McCall's assist-
ance in engaging in surveillance. Accordingly, I credit
Jenkins' claim that he did not solicit McCall's assistance
I The letter was addressed to Wayne Wixom. Respondent's director of
operations Respondent admits receiving the letter on or about December
16. 1978
i No petition for election was ever filed with the Board The Oroville
facility has approximately 24() employees.
' Brief p 7
Fr. p. 27.
644
OMARK-RCBS
in ascertaining the nature and extent of union activity at
the plant.9
In view of the foregoing, it cannot be concluded that
Respondent created the impression that it was engaging
in surveillance of the employees' union activities or solic-
ited employees to engage in surveillance of other em-
ployees' union activities. Consequently, it is found that
the charge in question has not been substantiated and
should be dismissed.
C. No-Solicitation, Vo-Distribution Rule and Threats
of Discharge
Respondent, in the latter part of November or the be-
ginning of December 1978,10 distributed to the employ-
ees a booklet called the "RCBS Employees Hand-
book,"" The handbook defines the Company's solicita-
tion policy as follows:
There is to be no solicitation or distribution of lit-
erature or materials of any kind by employees,
either during working hours or during the working
time of the employee who is doing the soliciting or
the employee being solicited.
As discussed above, on December 20, 1978, McCall re-
ceived a reprimand for harassing an employee to force
her to sign an authorization card. The alleged harassment
was said to have occurred during working hours. Ac-
cording to McCall, Jenkins refused to identify the person
he had allegedly harassed and told him "that if he [Jen-
kins] saw' me circulating any union cards that I would be
terminated immediately."
According to McCall, a few days after receiving this
warning, in the presence of Joe Abiecunas and Fred Ca-
saulong, he asked Jenkins if he could circulate authoriza-
tion cards during breaktime. 2 Jenkins was said to have
replied, "No, because the company paid us for our
breaktime and the company wasn't going to pay us to
circulate union cards."
9 Denny's claim in June 1978 that Jenkins said he did not want the
union discused in the shop is not probative of the allegations of surveil-
lance or threats as een if true, the incident occurred months prior to the
commencement of any organizing activity Additionally, Denny's testi-
mony is not credited. based on demeanor and the fact that her rendition
of the discussion made references to the Union in a manner inferring that
an organizational campaign had already commenced in June. The failure
to clarify the inconsistencies in Denny's testimony cojoined with the lack
of corroboration leads me, in these circumstances. to discredit her testi-
mony.
0o About the same time as the union organizing campaign.
I I The parties stipulated that the material contained in the handbook
was in effect at Oroville from December I. 1978, to March 1i 1979. and
that the handbook as distributed to all of the employees at the plant.
There was n esidence regarding what the employees did with the book
i.e. whether the, read the material
2 That McCall asked this question of Jenkins just a few days after he
allegedly as threatened ilh immediate discharge if he circulated any
union card indicates that if the threat was in fact made it was rendered
within the context of ork rles contained in the employees' handbook
that if solicitation was engaged in at improper times it could lead to dis-
charge. To find otherwise ould render McCall's inquiry regarding ac-
tivities during hreaktimr meaingless It is therefore concluded that this
and the other alleged threats ere not shou'l to have been made The
unsusltantiaied allegations (of McCall were, as here, replete with inherent
inconsistencies and fail Io support a finding that threats of a nature viola-
tie ofr Section 8(a)(1) of the Act were in fact made Therefore, it is con-
cluded that this portion of the conmplaint should be dismissed.
In January, McCall observed Alan Jernigan, who was
employed in the shipping department, circulating an an-
tiunion petition during working time as well"' as during
lunch and other break periods. McCall stated that he
called this apparent disparate treatment to Wixom's at-
tention and Wixom replied that "he did not know any-
thing about it." McCall also had a conversation with
Jenkins concerning Jernigan's solications. According to
McCall, Jenkins indicated that he knew about Jernigan's
activity, but when asked why McCall could not act simi-
larly Jenkins is said to have replied that he did not want
to talk about it. Jenkins denies knowing that Jernigan
was circulating a petition but did acknowledge hearing
rumors.
McCall's testimony regarding being prohibited from
soliciting during breaktime is corroborated by Casaulong
who overheard a conversation between Jenkins and
McCall wherein McCall asked Jenkins why he was per-
mitting Jernigan to circulate his petition on company
time or on the premises when McCall could not circulate
union cards or perform other union activities on compa-
ny time. Casaulong believes Jenkins' reply was "that
breaktime was company's [sic] time and lunchtime was
your time." Respondent argues that it modified its no-so-
licitation rule and no harm was done. Based on Jenkins'
failure to specifically deny making this reply, his lack of
clear recollection of when he received the Company's
memorandum' 4 describing the no-solicitation rule as
contained in the supervisor's handbook, S which Jenkins
admits he only skimmed, his failure to recall when he re-
ceived the handbook, his lack of clear recollection of
these conversations, and his inherent probabilities and de-
meanor, Jenkins' testimony regarding this incident is not
credited. ' Accordingly, it is concluded that Jenkins did
inform employees that they could not distribute authori-
zation cards during breaktimes.
That Jernigan circulated an antiunion petition during
breaktimes could lead to an inference that there was dis-
parate application of the solicitation rules to discourage
union activity demonstrating animus and in contraven-
'a McCall is the only witness who observed Jernigan soliciting during
working time and his testimony is not credited on this point Both Wil-
kerson and Casaulong observed Jernigan soliciting during nonworking
time. In fact, McCall admitted he signed Jernigan's petition at lunchtime
' It is dated February I, 1979. which is after the date of the alleged
cons ersation
Is The supervisor's handbook provides a different version of Respond-
ent's solicitation policies than the employees' handbolok There was no
evidence of record probative of the contention that the version of the
rule contained in the supervisor's handbook was ever related to all the
employees. The supervisor's handbook provides as follows:
An in-plant organizer or prounion employee has a right to try to
sign up or convince other employees during nonworking time That
means that you can't stop an employee from engaging in such actisi-
ties during coffee breaks. rest room isits, lunch breaks, clothes
changing time, wash-up time. before and after shift time and during
down time caused by machine failure
16 The crediting of only portions of McCall's and Jenkins' testimony is
required under the circumstances of this case and does not require rejec-
tion of their entire testimony. Carolina Canners. Inc., 213 NLRH 37
(1974) Accordingly, the discrediting of this portion does not require dis-
counting all of Jenkins' testimony. "Nothing is more common than to be-
hlee some and not all of what a witness says," dward5 Iranportion
Companri 17 NLRB 34 11971). enfd. per curium 437 F 2d 502 Sth Cir.
1971)
645
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lion of Section 8(a)(1) of the Act. However, the evidence
of record will not support such a conclusion. Jernigan
had a different supervisor and it is uncontroverted that
his supervisor allowed him to solicit before and after
work, during lunch, and breaktimes. Permission for such
activity was not shown to be contingent upon the nature
of the petition or the purpose of the solicitation. 7
Based on the foregoing, it is found that Respondent's
solicitation rule, as written in the employees' handbook
clearly precludes solicitation during working hours and
is thus prima facie invalid. Respondent argues that it has
clearly shown that it communicated to employees or ap-
plied the rule in a manner which clearly conveyed the
fact that employees could solicit during breaktime. In
the instant case, there was no indication that all the em-
ployees, and particularly those under Jenkins' supervi-
sion, were ever told or in any other manner informed
that they could solicit during working hours when they
were not actively at work. There was no evidence that
any revisions to the employees' handbook version of the
no-solicitation, no-distribution rule were posted or circu-
lated, or that a meeting was conducted, or any other
method of communication was employed to mitigate the
impact of the provisions of the employees' handbook or
Jenkins' statement to McCall. It is therefore concluded
that both the employees' handbook and Jenkins' applica-
tion of the company rules amount to an overly broad no-
solicitation rule which prevented employees from solicit-
ing on behalf of the Union during working hours in vio-
lation of Section 8(a)(l) of the Act. See Essex Interna-
tional, Inc., supra. Marriott Corporation (Children's Inn),
223 NLRB 978 (1976), and Kern's Bakeries, 227 NLRB
1329 (1977).
D. Solicitation of Grievances and Changes in Working
Conditions
As previously indicated, Respondent, in its brief, states
that when it became aware of the union organizing activ-
ity "it took steps to inform the employees that the Com-
pany did not wish to have a union in the Oroville
plant."1 9 These steps, which the General Counsel con-
tends were violative of Section 8(a)(1) of the Act, includ-
ed two speeches by the Sporting Equipment Division
President Jerry Pryor.2 °
The first speech was made shortly before Christmas
during the employees' Christmas party.2 1 According to
McCall, Pryor stated that the Company was aware of
the union organizing campaign and; that the Company
was cognizant of the numerous problems Respondent
7 Respondenl argues I hal i sa een handed i the application of the
solicitalion rule as enemplified by the fact that Jeriigal was disciplined
for returning to ork late because he ias oliciting signatures. This argu-
ment is unpersuasive for the discipline was for being late, not for solicit-
ing during working hours. There is itl evidence that lJernlgn Wa, ever
disciplined fir soliciting during working hours, or at improper times,
such as during the night-shift Houever, since kno ledge of Jcrnigan's
inmproper acti ity was not sho, n. nol iinferences or concll usiolns will he
drawn Ihererotrn
Citing Evic. International. inc, 211 NRB 749 (1974)
m Resp. br at p 7
Z, it is admitted that Pryor is a super isor
Zl It is unconlttroverted that this wias the first timte IPryor spoke to he
employees about the unioln rganiling campaign The Christmas party
"as for all enlploccs.
was experiencing that needed to be solved. Pryor "asked
the employees not to sign any union cards, to give them
[Respondent] an opportunity to sit down and discuss
these problems, that he would come back and he prom-
ised us that he would personally see that these problems
were ironed out."
Pryor did return to the Oroville facility the first week
of January 1979, and spoke to all of the employees of the
assembly department.2 2 McCall states that Pryor said he
returned to the Oroville plant because the Company was
very concerned and wanted to solve some of the prob-
lems. He asked the employees to voice their gripes.
McCall complained about the maternity benefits, favorit-
ism, and the lack of a job-bidding procedure. There was
also a discussion about signing job cards.2 3 McCall
claims Pryor stated that the purpose of the job cards was
to permit "a job-time analysis for costing purposes" and
that there was no real reason to sign the cards; further-
more, in response to a question Pryor stated that it
would be uncalled for and without "real reason" to fire
or reprimand an employee for failure to sign a job
card.2 4 Finally, McCall did not recall Pryor saying that
he could not make any promises but did not deny that
such a statement could have been made.
Fred Thurman2 5 recalled Pryor telling the employees
that they did not have to sign union cards and that those
who signed them would not have to stand behind them.
He also recalled that Pryor discussed a few problems ex-
isting in the shop but he did not recall most of the specif-
ics of the discussion. Thurman did remember some men-
tion of the use of job cards which Pryor indicated were
used to ascertain the assembly time as a cost component
and not for use against individual employees if they took
too long to do a job. Thurman stated most of the discus-
sion involved job cards and "the way people were being
treated."2"
The testimony of Moina Ruth Shannon 27 substantially
corroborated the testimony of Thurman and McCall.
Shannon recalled Pryor stating at the December meeting
that he would return in 4 weeks "to meet with every-
body because of the Union" and that at the second meet-
ing he "wanted to clarify and get rid of all the gripes."
The second meeting included a discussion of problems,
:2 The sectnd meeting as actually a series of departnenltal meetings
Onily the assembly department meeting as discussed in the testimony
2:1 Jb cards identify the part being assembled, states the number to be
assembled, notes the department number. has a space for clocking the as-
sigllllent i ad out, and has a signature space
24 here appears to be some confusion (in the part of most of the ist-
nesses in distilnguishing what was said during the first and second meet-
irgs. T'herefiore. i discussing some of the subsequent testimony, no dis-
titlction can olr ill be made between the meetings
2h Thurnal vas enlplioed by Respondent fr approximately 3 years
arid is currently cmplosed as an assembler, a psition he was assigned 4
or 5 months prior to the hearing
2I Thurmanl stated here were times he failed to sign the job cards but
not frequently since the rcenlcy of his appointment did nt afford a suf
ficietlt opporlunity to develop a meaningful history Preiously hie
worked in the die department where he had to sign job cards only three
hlr four imes a week He never received a written warning for failure to
sign a job card Thurmanl knows oif oher eployces in the assembly de-
parlmeti that failed to sign job cards and he is riot aware of their receiv-
ing rlllen .arnilgs.
2 Shlannon has beecl employed b Respondenl in the assembl depart-
tncni s ce ()clther 1'78
646
()MARK-RCBS
one of which Shannon raised dealing with the amount of
time the Company took to bring an employee up to full
wages, I year, compared to the time they were expected
to be able to perform the job, 45 days. Another matter
discussed was the signing of job cards and she recalled
Pryor saying there was no point in signing the cards, but
he did not change the policy, rather he indicated that he
would consult other managers a'out the job cards. Ac-
cording to Shannon. no moratorium on signing job cards
was imposed and there was no change in existing policy.
Shannon does not recall whether Pryor said he could or
could not make any promises. 28
Rebecca Lynn Graves2 9 stated that the meetings in-
volved consideration of many different questions, such as
medical and other benefits, pay scales for different jobs,
the role of seniority in advancement, and the signing of
job cards. She recalled Pryor saying that he did not
know why employees had to sign the job cards.: °0
Graves also specified Pryor discussed the union organiz-
ing campaign.:' Pryor "stated basically that the Union
was trying to organize and that people were kind of
asking for things that it was illegal for him to promise
until after union activities ceased." She also recalls him
commenting "that if you are sure you want to get into
union activities that's your business, but if you're not
sure, don't just fumble into it." Later in her testimony
Graves said: "During one of Pryor's visits he did discuss
the fact that higher management knew the shop was
having problems and that they had been trying to
straighten them out for a long time, but then they called
the meeting when everything kind of came to a head,
and they wanted everybody just to spell it out exactly
what was on their shoulders.: 2 Graves further testified
that: "Pryor never made any promises to anybody about
anything. He stated he was basically there to listen and
he would try to do what he could about some of the
things that were going on. He was talking about both old
and new problems."
Brian Goff al recalled the second meeting. He remem-
bered Pryor telling the employees that he did not want
them to sign any cards and he did not think that the
Union was the way to solve their problems. For that
reason, Pryor said he traveled to Oroville to have a
meeting to find out what the problems were and to try
and solve them. The problems discussed included job
cards,14 seniority, and most comments were described as
gripes about the bosses. Although he could not remem-
ber what Pryor said word for word, Pryor did say he
"2 The iness also recalled specific questions were asked (on many
subjects, hut she could only remember the general areas of interest such
as job security and seniority One question regarding equal pay for equal
work as specifically recollected.
(i ira'es had been employed by ()mark for approximately I year
:" appears fronm Gra\es' iestinlory that these statements ere made
al the second Ptrsor meeting
:B hased on Cirave' descriplon of the statements, and by making a
comparisonll to (lhaer trsttniol. it appears she is referring o the first
Pryor mectiring and It I so concluded
12 II is rioted hat this xxillncs appeared to he reluctant to state all?-
thing hich could he conlsderced detrimental o management and 'w.ho bs
her conduct xuanted to appear to be on the side of management
G:0 (ioff has orked mil the assnhly approximatetly 5-1/2 ears
4 P'ryor said the use of the ards as temporary, it as a means of
cealualing costI I assist he company in pricing its produclts
came to Oroville "to hear the employees' problems" and
further, he said something to the effect that "he couldn't
promise a resolution to all their problems."
Walter Wilkerson"" stated that at the first meeting
Pryor asked them not to sign union cards. At the second
meeting he recalled Pryor saying "his interest was to
hear all the employees' complaints" and everyone "was
given a chance to air their beefs,"3 6 Pryor was said to
have declared at the meeting that he could not make any
promises to the employees and that he could not do any-
thing to change the current situation.
William Casaulong 3 7 testified that Pryor, at the Christ-
mas party, stated that he felt the Union could not help
the employees, that they would be better off working on
a one-to-one relationship rather than have a bargaining
agent going between them. According to Casaulong,
Pryor also said that he thought wages and working con-
ditions were adequate. During the second meeting, Ca-
saulong represented that Pryor repeated the Company's
opposition to the Union saying that they could deal with
the problems on a one-to-one basis and he would like ev-
eryone not to sign a card until after the Company had an
opportunity to dig into the problems3 8 and try to solve
them.
Pryor testified that he had planned to address the em-
ployees at the Christmas luncheon to inform them of the
Company's past performance as well as future hopes and
expectations. When he learned of the union organizing
drive he modified his address to include this subject:
I explained to the employees that we were ery
interested in them in dealing directly with them,
and said that I thought that, really, it would be
worth both their time and the Company's time to
spend some-a period of time talking to them di-
rectly as to what our views were on unionizing the
plant, as to explain again, in case they didn't under-
stand, what our policies were at this time, how we
arrived at them, and really what our plans were and
where we were going in the future. And I said that
I would be back the day after New Year's and we
would hold departmental meetings and discuss those
items.
When Pryor did return, as promised, he conducted de-
partmental meetings which he estimated lasted 1-1/2 to 2
hours each. The format he used was to devote the first
30 minutes discussing Omark's personnel philosophy, in-
cluding wages and fringe benefit programs, and the
is Wilkerson has been employed as an assembler since February 1975
a6 Some of the complaints were about the poor quality of the parts to
hbe assembled and, inconsistencies in management, particularly in the as-
sembly shop Inconsistency in management as defined as faxormilismi J h
cards sere also discussed and he understood that the emplo)ees ere
asked to sign the cards but the signatures "ere not necessarily to pin the
,,itrk do n to one person, that they still had to sign the card but tha it
"tasnil necessarily to he held against you in anSy ay
: Casaulong has worked for Omark for 15 years and had recently
been pronmoted It the position of production coordinator Any questlon
regarding his supervisory status was not posed
:' Some of the problems or complaints raised by the employees includ-
ed discrimilnation. ages. insurance benefits; there Afere some pointed re-
marks about Jenkin, and jbh cards Ie does nt recall any dscussions
about scnliority r it oh hiddilng
647
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's open-door policy. It is uncontroverted that
the Company's open-door policy was promulgated prior
to the commencement of the union organizing campaign.
The policy grants employees the right to seek advice
from any supervisor or other managerial appointee at
any level, including the president of the Company.
According to Pryor, the explanation of the open-door
policy generated employee discussion. Pryor stated "that
he wasn't asking for grievances or problems exactly, but
they certainly did arise." (Emphasis supplied.) One prob-
lem raised involved the employees' concern about having
to sign job cards. Pryor told the assemblage that he was
not sure that the job cards needed to be signed, that they
were not signed in the Company's Lewiston plant and,
hence, he indicated that he would check to ascertain if
the cards really needed to be signed. Someone did ask if
an employee could be terminated for failure to sign the
cards. Pryor claims he replied as follows:
Look, if you're a good employee and you have
[sic] good work record, so forth, if you don't sign a
work card you're not going to be terminated for
that just alone. Someone might come and ask you
why you didn't obey a work rule and there could
be a conversation but that in itself certainly would
not be cause for termination. 3
Pryor also asserts that at the commencement of each
departmental meeting he stated that because of the union
organizing drive it would be illegal for Omark to make
any changes in the fringe benefits, the wage package, or
the personnel policies. This testimony is not credited for
the reasons stated hereinbefore, particularly the lack of
corroboration and the fact that the overwhelming major-
ity of employees who did testify represented that Pryor
met with them the second time announcing that he
wanted to know their "gripes" or "complaints," and ex-
pressing a desire to resolve the problems. The employee
consensus on Pryor's statements, cojoined with Pryor's
lack of candor, leads me to credit the employees' version
of both meetings. The meetings were clearly not mere
extensions of Respondent's open-door policy for much
more was discussed than a mere explanation of that
policy.
The record clearly demonstrates that Pryor announced
Respondent's desire to avoid the Union, which was de-
scribed as a middleman, requested the employees to deal
directly with the management, asked for "complaints or
gripes," and requested an opportunity to resolve the
problems. The statements are found to constitute a clear
attempt to dissuade employees from supporting a union
by soliciting grievances and holding out the possibility of
more favorable treatment in violation of Section 8(a)(1)
of the Act. See John L. Lutz Welding and Fabricating,
Inc., 239 NLRB 340 (1978), and Kantor Pepsi-Cola Bot-
tling Co. of Beloit, Wisconsin, 248 NLRB 99 (1980).
a9 Based on the great similarity in the testimony of the employees re-
garding Pr)or's statements on the job cards, demeanor. the relative posi-
tion and interests of the employees their testimony that Pryor said he did
not see a need to sign the job cards, that failure to sign is not a cause for
discipline or discharge, and did not change the policy is credited, and not
the above-quoted statement
The question of job bidding, as previously indicated,
was an issue of great import to the employees. Respond-
ent did include in its handbook 40 a job-bidding program
which was not implemented until February 1, 1979. It is
admitted by General Counsel that job bidding was a pro-
gram contemplated and planned prior to the commence-
ment of the union organizing campaign. It is uncontro-
verted that Respondent intended to implement a job-bid-
ding program at Oroville but was waiting until it had a
centralized bulletin board for posting jobs. They planned
to position the bulletin board in a lunchroom which was
under construction. Construction was to be completed in
November 1978 but, according to Pryor, was not com-
pleted until the last part of April. Respondent argues that
managerial reorganization permitted implementation of
job bidding without a centralized bulletin board. There
was no clear showing of how the supervisory reorgani-
zation obviated the stated need for a central posting site.
The Respondent's implementation of job bidding prior to
the completion of the lunchroom and prior to the estab-
lishment of a central posting location is therefore found
to have been an acceleration of conferring an extremely
important benefit 41 for the purpose of interfering with
the union organizing campaign in violation of Section
8(a)(1) of the Act. See N.L.R.B. v. Exchange Parts Co.,
375 U.S. 405 (1974), and A & P Tea Co., 162 NLRB 1182
at 1185.
E. Alleged Discrimination
The General Counsel alleges that because of McCall's
union activities, Respondent discriminated against him by
issuing a written reprimand to him on December 20; by
imposing more onerous working conditions upon him;
and, by discharging him on or about March 1, 1979.
1. Written reprimand
On December 20, 1978, Jenkins issued to McCall a
written warning on the following basis:
Open harassment of employees on company
property during scheduled work time in an attempt
to gather signed union representation cards. Compa-
ny rules strictly prohibit harassment of employees
for any cause or reason during working hours. [sic]
Respondent asserts that the origin of this warning was
not McCall's union activities but rather his harassment of
coworker Sharon Politovich.
According to Politovich, McCall approached her and
several other assemblers during worktime and started
discussing the union; particularly the need for better re-
tirement benefits. Politovich stated that after listening for
awhile she indicated her disagreement with McCall's as-
sertion that there was a need for the Union, to which
McCall's response was a more aggressive presentation of
4 As previously stated, the handbook was distributed to employees in
November 1978.
4 As pres iously discussed, job bidding, the lack of which was general-
ly ad undoubtedly felt to have resulted in unfair advancement and fa-
voritism, was an extremely important issue to the employees and was part
of the genesis of the uniori organizing campaign.
648
OMARK-RCBS
his views using the device of derisive and belittling
verbal attacks. McCall then asked her to sign an authori-
zation card and when Politovich responded, "no,"
McCall was said to have attacked her on the basis that
she was a single parent who should be home with her
children, that she was "not the kind of person that
should be working there." Politovich described McCall
as being "very very rude" to her, and "she left crying."
Respondent stated that a coworker42 observed the inci-
dent and reported it to management who then inter-
viewed Politovich. Politovich testified that she described
the incident to management during the course of its in-
vestigation of the matter in the same manner as she testi-
fied at the instant hearing. McCall was then called into
the personnel office and talked to Robert Stevens, the
personnel manager. McCall denied that the incident oc-
curred. The investigation resulted in the issuance of the
written warning.
McCall's denial is not credited based on demeanor,
prior consistent behavior, and, as the General Counsel
stated in his brief, McCall does not contradict Polito-
vich's testimony concerning the conversation. As de-
tailed below, McCall had previously been disciplined for
making untoward remarks to coworkers.
The issue therefore is whether McCall was disciplined
because he violated the no-solicitation rule, previously
found invalid, or whether his actions went beyond the
usual spirited attempts to convince coworkers to join the
Union or were activities which would normally be sub-
ject to discipline absent the union organizing cam-
paign.43 On July 28, 1978, McCall received a written
warning for making comments that inferred that two
female employees were lesbians. McCall denied making
the statement. On September 22, 1978, McCall received a
written reprimand for making "offensive racial state-
ments" to Mary Bradford,4 4 which, according to the
warning, Ella Smith, who did not testify, also heard.
McCall's response indicated that he denied making the
remarks. These two incidents occurred prior to the com-
mencement of the union organizing campaign and clearly
demonstrated an established company policy of issuing
written reprimands for making untoward comments to
coworkers. The record also demonstrates that McCall
had a history, prior to December 20, and unrelated to
the organizing campaign, of making such comments and
being reprimanded therefore by the issuance of written
warnings. Accordingly, it is found that the warning of
December 20 was issued in accordance with the estab-
lished company policy against harassment of coworkers
and not because McCall was soliciting union authoriza-
tion cards. That McCall was soliciting cards at the time
is hereby found, on the basis of the total record, to have
been incidental. The General Counsel has failed to show
that union activity was the genesis or motivating factor
leading to the discipline. On this basis, I shall recom-
mend dismissal of the allegation that the issuance of the
warning on December 20, 1978, was illegal.
42 Skjerping, Twho did not testify
'4 As cited by General Counsel, see Kern's Bakeriev. 227 NLRB 1329
(1977)
44 Bradford testified and repeated her complaints about McCall
2. Imposition of more onerous working conditions
McCall testified that shortly after the first organizing
meeting in early December, he was assigned to work on
"burring tools" at the "burring table.45 Both Jenkins and
his assistant, Jim King, stated that there may have been a
short-term assignment of McCall to that location, but it
was part of the normal shop routine of rotating assign-
ments. The table was close to Jenkins' work location and
not close to the work station of other assemblers.
McCall, on the other hand, asserts that the assignment
was unusual in its long duration and because, contrary to
standard practice, he was instructed not to punch in and
out on jobs but that either Jenkins or King would per-
form that function. McCall further asserts that, also con-
trary to his normal job duties, he was instructed not to
get his own supplies but to request either Jenkins or
King to acquire the needed supplies. Prior to his assign-
ment to the burring table which was about 20 to 25 feet
away from the closest coworker, McCall worked only in
the general assembly area. McCall asserts that he was as-
signed to the burring table for about 2 or 3 weeks and
then was assigned to another remote area to work with
David Featherstone, to assemble case trimmers,4 6 until
the end of February. Featherstone's work station was re-
moved from the general assembly area McCall and other
assemblers who testified were usually assigned.
McCall asserted that Fred Casaulong4 ' usually
worked at the burring table who, because it was not a
high-demand item, would devote a day or day and a half
to package the burring tools. It is noted that this estimate
comports with the estimate given by Jenkins regarding
the amount of time per month needed to package an
average month's order of burring tools. Casaulong testi-
fied but did not confirm or refute McCall's contention.
There was no clear explanation as to why Casaulong did
not perform his usual duties. Furthermore, no other as-
sembler employed by Respondent testified that they
were assigned to the burring table or to assist Feather-
stone as part of their regular job duties. Therefore, the
removal of McCall from what had been his normal work
area has not been shown to be an established routine.4 8
This finding takes full cognizance of Respondent's pro-
bative evidence that McCall greatly exaggerated the
amount of time he was assigned to the burring table to
package burring tools. It is found that the inventory was
4s According to McCall burring tools are used to reshape expended
shells to permit reutilization Jenkins states that the tools are manufac-
tured by a subcontractor who delivers them in lots of 228 units which are
then boxed individually in custom-made boxes The subcontractor is a
small firm that has difficulty keeping up with Respondent's demand.
swhich is approximately 4000 per month. Accordingly, the inventory is
generally low and as a shipment arrives it is usually boxed. Jenkins esli-
mates that it takes 12 to 13 hours to package 4,000 burring tools. McCall
said he could "assemble" about 2,000 burring tools a day.
46 Case trimmers pare down the casing of the shell and takes the place
of a burring tool.
4 Casaulong's work station is not the location where McCall said he
was assigned. Casaulong is confined to a wheelchair and has a permanent
bench assignment
4" In fact, Mary Bradford, a coworker, during her testimony wherein
she Was describing the McCall slur allegedly made to her, stated "she
always sat in the first chair " This statement contradicted earlier testimo-
ny she gave on emploee assignment, but is credited because of the spon-
taneity oif the response
649
DECISIONS OF NATIO()NAL LABOR RELATIONS BOARD
insufficient to keep McCall occupied the amount of time
claimed. Further, McCall signed job cards during the
months of December and January 1978, indicating he en-
gaged in activities other than packaging burring tools or
working on case trimmers. However, the job cards do
not state the physical location of McCall when he ac-
companied the tasks described on the cards. The evi-
dence submitted by Respondent is insufficient to rebut
the prima facie case of the General Counsel. Further-
more, coworkers did notice McCall was assigned to the
area he described as the burring table; and, King ad-
mitted that on occasion he got all the parts for employ-
ees, a fact not supported by any other nonsupervisory
witness. 49 No other general assembler was shown to
have been routinely assigned, or assigned at all, to the
burring table or to assist Featherstone. Accordingly, the
explanations given by Respondent are not credited. That
McCall was physically removed from the usual work sta-
tion shortly after the commencement of the union orga-
nizing campaign and his designation as a principal union
organizer is mentioned in Respondent's brief.
The timing of the change in work station,50 the admis-
sion that Respondent wished to keep the plant nonunion,
and Respondent's failure to produce any documentation
or other probative evidence demonstrating that employ-
ees regularly or routinely were assigned to the burring
table or to assist Featherstone5 t are factors requiring the
conclusion that the assignments were unlawfully motivat-
ed. Accordingly, it is concluded that the changes in
work assignments were done with discriminatory intent
in violation of Section 8(a)(1) and (3) of the Act.
3. McCall's discharge
On March 1, 1979, McCall was discharged. Two ter-
mination notices were prepared. One notice was dated
February 28, 1979, and lists the following basis for the
adverse action: "Job card not signed; job time too long;
dies not properly assembled, refer to written warning of
7-19-78,52 verbal warning of 6-26-78; 53 a written warn-
ing dated February 28, 1979 did not punch time card in
at lunch time." This form was designated as the third
written warning indicating other written warnings were
49 Management contended such assignments were made on an "as
needed" basis but this mere assertion was not buttressed by one specific
example of demonstration or implemention of the claimed policy involv-
ing any employees other than McCall. Accordingly, this bare assertion is
not credited
'" See Liberty Mutual Insurance Co., 235 NLRB 1387 (1978)
5' See Vorthern Packing Co. v Paye, 274 U.S 65 (1927).
~2 The warning issued to McCall by Jenkins on July 11, 1978, contains
the following supervisor's remarks:
Henry did a very poor job of stamping some puller collet hboxes.
They were so poorly stamped they could not he read Henry was
given hrough sic] instructions by Jim King as to proper way to
stamp this item We have had several poor quality jobs from Henry.
He has been warned before about quality.
s The dalte of the verbal warning is not clearly reproduced on the ex-
hibit. Respondent introduced two notes initialed by Jenkins, one is dated
June 26, 1978, and reads "Henry did not check die threads properly in
assemble [sic]. Told he must check Has been told this many times." The
second note is dated June 27. 1978 and reads: "Henry McCall-more im-
properly checked die threads. Told quality must improve "
issued February 28, 1978,54 and July 19, 1978.55 The
second termination notice was dated March 1, 1979, and
states the basis for termination was McCall's absence
without permission. The notice also indicates that this is
the first warning, written or verbal, McCall received for
being absent without permission. These termination no-
tices were signed by both Jenkins and his supervisor,
James G. Bell.
Respondent asserts that the sole basis for McCall's dis-
charge was his poor work. According to the Company,
on February 27, Tom Matthews,5 6 an inventory control
worker, inspected some neck sizer dies in the normal
course of his duties, and found that all he inspected were
improperly assembled. Matthews informed James
King,5 7 the assistant supervisor of the assembly depart-
ment, of the poorly assembled dies.58 King examined the
job card, noted that it was not signed, therefore he could
not tell who was responsible for the assembly. However,
the job was stamped at the timeclock, so King could as-
certain how long the assembly took, and he claims the
assembly took too long.5'9 King thought the problem
was serious enough to bring to Jenkins' attention which
he did.
Jenkins said he inspected more of the dies and he also
could not find any that were properly assembled. Jenkins
asked King who performed the work and King replied
he did not know because the job card was not signed.
Jenkins indicated that he had never before seen such
poor work where not one die was properly tightened,
therefore, the more he inspected the more angry he
became.
Jenkins stated that Respondent is noted for the qualify
of its products; that the extent of the error caused grave
concern for it led him to conclude that the error was not
inadvertent. Normally, he claims, employees made occa-
sional errors, just an odd error, but in this case all were
improperly assembled. Jenkins' characterization is found
to be a gross overstatement. McCall's warning dated
February 28, 1978, written and signed by Jenkins on
March 1, 1978, was issued because of his failure to
"tighten pin holders on pistol expanders properly." (Em-
phasis supplied.) McCall's reply to Jenkins' remarks on
the warning form indicates that the entire batch was as-
sembled without the pin holders being properly tight-
'4 Prior warning, issued to McCall by Jenkins for substandard work,
state "Failed to ighen [sic] pin holders on pistol expanders properly.
Henry has been corrected and instructed on this operation previously"
s. This warning was previously discussed.
sn Matthews did not testify.
S7 The unrefuted testimony of the employees is that Matthews, when
he discovers mistakes, informs Vernon LaRose, the production coordina-
tor who generally makes the work assignments. Both Matthews and
L.aRose are hourly employees and it is not contended that they' are super-
visors. Why Matthews fails to follow normal routine in this instance is
unexplained King did admit that it is unusual for Matthews to call a job
to his attetion.
r' The poor assembly was described as the expanders being loose in
the siuer bodies which was caused by the assembler's failure to properly
tighten the expander with plyers Also, after sampling about 20 percent
,rf he group. which contained 112 expanders, he found one set screw
missing Most assembly jobs are assigned in lots of lO-)-why this assign-
ent contained 112 was unexplained.
.' King states that assembly of I(X) of those dies should, on the aver-
age, take I hour and 2(I minutes
650
OMARK-RC3BS
ened for he said he learned that day the proper method
of tightening the parts. Additionally, on July 19, 1978,
Jenkins issued another written warning to McCall stating
that he "did a very poor job of stamping some bullet
puller collet boxes." (Emphasis supplied.) This wording
indicates that the error was not just an "odd error." The
impression given by these two warnings is that mistakes
were made involving an entire batch. This impression is
confirmed by the testimony of several employees whose
testimony is credited based on their status as employees,
demeanor, and the consistency of the testimony. For ex-
ample, Fred Thurman testified assemblers at times make
mistakes such as "getting the wrong parts on the dyes
they're putting together." This error would encompass
the entire batch. Thurman stated he made mistakes once
or twice a month. Denny confirmed this estimate of fre-
quency of mistakes. 6 0 None of the employees who testi-
fied stated that they were disciplined for making mis-
takes, rather they were afforded the opportunity to cor-
rect the mistake.6f'
Based on the testimony of the employees and Jenkins'
own remarks in McCall's written reprimand, it is con-
cluded that finding errors or mistakes in an entire set of
dies is not uncommon, contrary to Jenkins' testimony.
Accordingly, it is concluded that Jenkins was less than
candid and his testimony on this point is not credited.
Jenkins then stated that he gave King the job card for
the improperly assembled dies and instructed him to
check with LaRose to see if LaRose knew who had as-
sembled the dies. This testimony is not corroborated.
King testified that Jenkins told him he, Jenkins, would
ask LaRose, the production coordinator, which employ-
ee assembled the dies. LaRose testified that Tom Mat-
thews asked him, on February 28, to have McCall sign
the job card.6 2 LaRose did not report to Jenkins or
King, he just went to McCall and asked him to sign the
card.63 McCall did sign the card.
Jenkins consulted his superior, Bell, although he pos-
sessed the authority to terminate McCall without seeking
advice or permission from any other supervisor. Robert
E. Stevens, the personnel manager, was also consulted.
Stevens then contacted Pryor. Respondent contends that
it proceeded with an abundance of caution due to
so Another example is the testimony of Moina Ruth Shannon who
stated that "she has made mistakes in her assembly work, such as putting
wrong seats in a er of dies or pullting a set of dies ogelher incorrectdir with
the wrong expanders in the wrong box." (Emphasis supplied.)
61 In addition to the testimony of Thurman. Denny. and Shannon, sim-
ilar statements in this regard were made by Wilkerson and Casaulong
2 Although LaRose testified he knew the joh was performed by
McCall, since he sat across from McCall on the day the job was done he
did not state that he told anyone or was asked by anyone. who had per-
formed the job Also, if L.aRose did observe McCall h he did nol ob-
serve McCall't failure to insert the die in a special apparatus to hold the
die while plyers were used to tighten the expender bolt. he proper as-
sembly method. is unexplained
us McCall stated that he signed the card a a favor to LaRoIse who
said he needed a card signed and not as an admission that he had per-
formed the work. While it is nt outcome determinatise. McCall's lesli-
mony is not credited based on demnearlor, inherent incunsihtencies, and
the other factors discussed n .'orthridge Knitting lil. /ic.., 223 NlRI
230. 235 (976).
McCall's position as an in-plant organizer. 64 Only after
Respondent was assured that McCall was responsible for
the incorrect assembly, it contends, was the termination
decision made.
The question therefore is whether McCall was dis-
charged for engaging in protected concerted activity or
because of the improper assembly of dies cojoined with
his past work history.6 5 The termination notices issued
to McCall make it clear that the poorly assembled dies
were not the sole reason for his termination.
McCall received written warnings for poor work on
February 28, 1979, and July 19, 1978; two verbal warn-
ings dated June 26, 1978, and June 27, 1978 for poor
work, yet McCall was not suspended or terminated. Ad-
ditionally, McCall received several warnings unrelated to
work quality. 6 6 McCall was not suspended or terminated
h Respondenl also asserts that it exercised this abundance of caution
even though it recognized that most of the "wind" had left the organiz-
ing campaign's sails
Is Respondent has a rule which states, in part:
The following violations can result in termination without swarning
Theft frnom the Company or employees
Willful insubordination to Management
Falsification of Company records
Obtaining employment through false representation
Immoral conduct or fighting on Company property
Possession anid/or use of alcohol and/or controlled substances
(Drugs) on Company property
Reporting to work under the influence of alcohol and/or con-
trolled substances (Drugs)
Failure to comply with safety regulations
Possession of unauthorized weapons on Company property
Being on Company grounds outside normal work hours without
permission
Some iolations of Company rules relating to job performance will
require prior counseling and/or disciplinary action. Examples are:
Failure to perform effectively
Inability to perform effectively
Failure Io work effectively with others
Failure to correct absenteeism or ardiness
It is expected that employees will make every effort to correct unac-
ceptable behavior or poor performance after counseling with their
supervisor However. when corrective discipline is necessary it may
take the form of a written warning and/or unpaid suspension from
work prior to actual termination.
With the exception of absenteeism, which is covered as a separate
topic, one written warning followed by a repeat of the same offense
within any 12-month period will result in suspension or termination.
depending on the Supervisor's judgment.
If the suspension is chosen and the employee repeats the violation
within a 12 month period, termination will fiollow.
An employee who received a written warning will be placed on a
three-day unpaid suspension from work if he already has two written
warnings for other offenses within the previous 12 month period in
his file One more written warning for any offense within the 12
month period following suspension will result in termination
Noi disciplinary document which is more than one year old will be
held against an employee who is being considered for a job transfer
or priomotilon nor will it affect his overall performance record
Each year all personal files will be reviewed by the Personnel Man-
ager Documentation of disciplinary actions which are over one year
will be removed from the employee's file
"; As presiously discussed: On December 201). 1978. McCall received a
writtllen ariiling for harassing an employee during working hours in the
course iof olitinlg authorization card signatures; on July 25, 1978.
McCall receised a warning regarding comments made by McCall to iwo
v omen inferring that they were lesbians and, a warning dated September
22, 1978. ,tating that McCall made offensise racial slurs These warnings
Continued
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for these nonwork performance warnings. Respondent's
actions, therefore, contrary to its claims, confirms the
testimony of its hourly employees that the Company was
lax in the enforcement of its rules. Yet, when McCall
made the mistake of February 27, more than 7 months
after his last work performance warning, he was immedi-
ately discharged. This action leads to an inference that
the reason for the discharge was pretextual inasmuch as
the nature of the mistake was not shown to be substan-
tially different from his prior errors or the errors of
others, as discussed hereinbefore.
Respondent admitted it knew of McCall's union activi-
ty and further admitted it was actively trying to keep the
Oroville plant nonunion. In this atmosphere, more than 7
months after the last warning was issued for poor work-
manship, McCall's mistake of February 27 constitutes in-
tolerable work habits which indicates discriminatory mo-
tivation. See Liberty Mutual Insurance Co., 235 NLRB
1387 (1978).
Also relevant in determining motivation is the employ-
er's use of a multiplicity of alleged reasons for its action,
which is a familiar signpost to discriminatory intent. See
La-Z-Boy Tennessee, 233 NLRB 1255 (1977); N.L.R.B. v.
Superior Sales. Inc., 366 F.2d 229 (8th Cir. 1966). The
failure to sign a job card, as Pryor admitted and many
employees testified, is not usually an offense warranting
discipline. That the job time took too long is also a
reason subject to debate since the standard time for as-
sembly of these dies was only estimated by Respondent's
witness, there is no published standard, and based on a
problem, free assembly, 6 7 which is an assumption not
discussed in the evidence. It is noted that it took King
about 35 minutes, or almost half the "standard time" just
to tighten the assembly and check one of the 112 lock
rings for set screws, which indicates that the "standard
time" is probably not realistic for this assembly. The last
reason given on the February 28 notice for the termina-
tion was failure to punch the clock after lunch. Many
hourly employees testified on this issue and stated, un-
controverted, that the hourly employees fail to "punch
in" on occasion and their failure has not historically been
the basis for disciplinary action. The variance by Re-
spondent in this case from its normal business practices
further supports an inference of unlawful motivation
McGowen-Edison Company, 172 NLRB 1604 (1968), enfd.
McGraw-Edison Co. v. N.L.R.B., 419 F.2d 67 (1969).
The second termination notice, dated March 1, was
based on McCall allegedly being absent without permis-
sion the morning of March 1. It is undisputed that
McCall was running for a local elective office and both
Bell and King remembered talking to McCall about this
activity. Bell also admitted that McCall asked him if he
could occasionally have time off to campaign and, after
checking, Bell replied that the Company encouraged
such activity and requested that McCall give manage-
ment advance notice of when he would be off campaign-
ing. The question of whether McCall did, in fact, give
were characterized as termination offenses in the section of the warning
entitled "Action to be taken "
67 A problem-free assembly means that there were no missing parts, all
parts were machined properly. had no rust or other impediments to a
smooth, and, hence, a rapid standard assembly
such notice is the subject of conflicting testimony. How-
ever, based on his position as a current employee, the
testimony of Abiecunas, that he did in fact tell Jenkins
that McCall would be a little late the morning of March
I is credited and Respondent's refutation of Abiecunas'
testimony is not credited based on demeanor, inherent
probabilities, and inherent inconsistencies. That the inci-
dent was used as an additional reason for termination is
further demonstration of Respondent's search for reasons
to justify the discharge of a known union adherent, and
is indicative of discriminatory nature. See N.L.R.B. v.
Walton Manufacturing Co., 369 U.S. 404 (1962).
Upon all the facts, including the above indicia of un-
lawful motive, and the finding of antiunion proclivities I
conclude that the General Counsel has established a
prima facie case and Respondent has failed to establish a
convincing defense. Therefore, it is found that Respond-
ent discharged McCall to rid themselves of a leader of
the unionizing effort in violation of Section 8(a)(3) and
(I) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent interfered with, coerced, and restrained
employees in the exercise of rights guaranteed them in
Section 7 of the Act, thereby committing unfair labor
practices prohibited by Section 8(a)(1) of the Act, by:
(a) Instructing employees not to distribute union litera-
ture or engage in union solicitation during nonworking
time.
(b) Soliciting employee grievances while offering to
try to resolve such grievances during a union organiza-
tional campaign for purposes of discouraging union ac-
tivities.
(c) Implementing a job benefit for the purpose of inter-
fering with the union organizing campaign.
4. Respondent discriminated with respect to employ-
ees' tenure, terms and conditions of employment, thereby
discouraging membership in a labor organization and
committing unfair labor practices prohibited by Section
8(a)(3) and (1) of the Act, by imposing more onerous
terms and conditions on Henry McCall, by discharging
Henry McCall on March 1, and by failing and refusing
to reinstate him thereafter.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Respondent has not been shown to have engaged in
any other violation of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act, I shall rec-
ommend that it cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the
Act. Accordingly, the Respondent shall be ordered to
652
OMARK-RCBS
immediately reinstate Henry McCall to his former job or,
if that job no longer exists, then to a substantially equiva-
lent job, without prejudice to his seniority and other
rights and privileges previously enjoyed, and to make
him whole for any loss of earnings and compensation he
may have suffered because of this illegal discrimination
against him in his employment as herein found. Backpay
shall be computed with the formula and method pre-
scribed by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and payment of 6-percent interest per
annum 6 8 shall be computed in the manner prescribed by
the Board in Florida Steel Corporation, 231 NLRB 651
(1977).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 6 9
The Respondent, Omark-RCBS, Incorporated, a Divi-
sion of Omark Industries, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Maintaining and enforcing a rule prohibiting union
solicitation and distribution of union literature in work
areas during times not unequivocably defined as working
time.
(b) Soliciting employee grievances and indicating that
attempts will be made to resolve at least some of the
grievances during a union organizational campaign for
purposes of discourgaging union activities.
(c) Implementing job benefits for the purpose of inter-
fering with the union organizing campaign.
(d) Discriminating against any employee in regard to
hire, tenure, or any other terms or conditions of employ-
ment or order to discourage membership in or activities
on behalf of the General Teamsters Local 137, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, or any other labor orga-
nization.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join or assist the
68 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
69 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
Union, or any other labor organization, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind its rule against union solicitation and distri-
bution of union literature applicable to work areas and its
discriminatory no-solicitation rule through the plant.
(b) Offer Henry McCall immediate and full reinstate-
ment to his former position as a general assembler or, if
such position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights or privileges previously enjoyed, and make him
whole for loss of earnings in the manner set forth in the
section of the Decision entitled "The Remedy."
(c) Expunge from Respondent's personal records, any
and all referrences to the discriminatory termination of
employment of Henry McCall.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at their Oroville, California facilities copies of
the attached notice marked "Appendix" 70° Copies of said
notice on forms provided by the Regional Director for
Region 20, after being duly signed by the Respondent's
representative, shall be posted by the Respondent imme-
diately upon receipt thereof and maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 60 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint
be, and hereby is, dismissed insofar as it alleges unfair
labor practices not specifically found herein.
'° In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an a
Order of the National Labor Relations Board."
653