Performance Friction Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1995

319 N.L.R.B. 859 (N.L.R.B. 1995)

859
319 NLRB No. 111
PERFORMANCE FRICTION CORP.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 363 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has also excepted to the judge’s decision assert-
ing that the judge, through his comments at the hearing, rulings, and
decision, demonstrated bias and prejudice against it. Upon our full
consideration of the entire record in these proceedings, we find no
evidence that the judge prejudged the case, made prejudicial rulings,
or demonstrated bias against the Respondent at the hearing or in his
analysis and discussion of the evidence.
In adopting the judge’s finding that the Respondent implemented
its new disciplinary system in April 1994, we do not draw an ad-
verse inference from the Respondent’s failure to call, as witnesses,
employees who it alleged attended committee meetings where the
new disciplinary rules were formulated.
For purposes of our decision, we find it unnecessary to resolve
whether the Respondent’s owner, Donald Burgoon, admitted that his
truck left tire marks during an April 28, 1994 incident.
2 Consistent with the judge’s analysis we have modified the Con-
clusions of Law, Order, and notice to provide that the Respondent
additionally violated Sec. 8(a)(3) and (1) by: (1) terminating employ-
ees Kyle Myers, Leslie Teague, and Bernard Young pursuant to its
new disciplinary system; and (2) terminating employee Manuel
Montecon for engaging in union activities, and to discourage support
for the Union. As to Montecon, it was neither alleged in the com-
plaint nor established in the record that he was additionally dis-
charged under the unlawfully revised disciplinary system.
We have not included Michael Thompson and Nedra Stewart as
discriminatees because the record does not establish that they were
discharged on or after April 19, 1994, when the judge found that the
revised policy took effect. The General Counsel, however, has the
opportunity in compliance to establish that Thompson, Stewart, or,
indeed, any other employee, was unlawfully discharged on or after
April 19 pursuant to the revised disciplinary policy.
Finally, consistent with the judge’s proposed remedy, we have
modified the recommended Order and notice to specify that all dis-
cipline meted out under the revised disciplinary system, including
discharge, is unlawful.
3 We find that the cases relied on by the Respondent are distin-
guishable. We also find that Sumo Airlines, 317 NLRB 383 (1995),
does not require a contrary result. In Sumo Airlines, the General
Counsel was not permitted, after the hearing, to expand the class of
discriminatees to include an additional employee beyond those
named in the complaint and stipulated to by the parties. Here, how-
ever, the General Counsel promptly moved to amend the complaint,
and the Respondent had the full opportunity to litigate the amended
allegation at the hearing. In addition, in compliance, the Respondent
has the opportunity to show that it would have taken the same action
towards any of the additional unnamed discriminatees, even without
the revised disciplinary policy.
Performance Friction Corporation and United
Automobile, Aerospace, & Agricultural Imple-
ment Workers of America (UAW). Case 11–
CA–16040
November 30, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On April 6, 1995, Administrative Law Judge Philip
P. McLeod issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the Union
filed a brief in response to those exceptions, and the
Respondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
as modified,2 and to adopt the recommended Order as
modified.
The Respondent has excepted to the judge’s decision
to grant the General Counsel’s midhearing motion to
amend the complaint to add to the list of discri-
minatees disciplined under its revised disciplinary pol-
icy, those ‘‘similarly situated employees known to Re-
spondent but presently unknown to the General Coun-
sel.’’ We adopt the judge’s decision. Thus, the General
Counsel moved to amend the complaint immediately
after the Respondent asserted that there were employ-
ees, beyond those named in the complaint, who had
been disciplined under the revised rule. As this motion
was made before the Respondent put on its case, it had
an adequate opportunity to address the expanded class
issue. Further, although the judge inadvertently failed
to rule on this motion until his decision, he notified the
Respondent when the motion was made that: he in-
tended to grant it; that the Respondent should consider
itself on notice that the General Counsel was broaden-
ing the class of discriminatees; and that it should liti-
gate the case accordingly.3
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 5.
‘‘5. Pursuant to its new and stricter disciplinary sys-
tem, the Respondent discharged union activists and
employees Martha Hinson, Merri Rowe, Haywood
Steel, Susan Hudson, Jerry Kennedy, Kyle Myers, Ber-
nard Young, Leslie Teague and others in violation of
Section 8(a)(3) and (1) of the Act.’’
2. Insert the following as a new Conclusion of Law
6, and renumber the succeeding section.
‘‘6. The Respondent discharged Manuel Montecon
because of his union activities and to discourage such
activity in violation of Section 8(a)(3) and (1).’’
ORDER
The National Labor Relations Board orders that the
Respondent, Performance Friction Corporation, Clover,
South Carolina, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees that it would be futile for
them to select the Union as their collective-bargaining
representative; expressly or impliedly threatening to re-
860 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.’’
duce wages if the employees select the Union to rep-
resent them; interrogating employees about their union
sympathies and activities, and the activities and sym-
pathies of fellow employees; soliciting grievances from
employees and expressly or impliedly promising to
remedy those grievances in order to discourage union
activities among employees.
(b) Instituting a new and stricter disciplinary system
in response to employee union activity to discourage
such activity or to rid itself of union activists.
(c) Issuing warnings, discharging, or taking other
disciplinary action against any employees for engaging
in protected concerted or union activities.
(d) 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 the new and stricter disciplinary system
which was instituted by the Respondent in response to
employee union activity.
(b) Rescind any disciplinary action taken pursuant to
the stricter disciplinary system which system the Re-
spondent instituted in response to employee union ac-
tivity.
(c) Offer Manuel Montecon, who was unlawfully
discharged for engaging in union activities, and Martha
Hinson, Merri Rowe, Haywood Steel, Susan Hudson,
Jerry Kennedy, Kyle Myers, Bernard Young, Leslie
Teague, and any other employees unlawfully dis-
charged pursuant to the new disciplinary system, im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges; and make them whole with back-
pay to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus appropriate
interest, for any loss of earnings they may have suf-
fered as a result of the discrimination against them.
(d) Remove from its files any reference to the warn-
ings, discipline, and discharges found unlawful, and
notify each of the individuals so warned, disciplined,
or discharged, in writing, that this has been done and
that evidence of the unlawful conduct will not be used
as a basis for future personnel actions against any of
those individuals.
(e) Preserve and, on 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
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its Clover, South Carolina facility copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
this notice, on forms provided by the Regional Direc-
tor for Region 11, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places, includ-
ing all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE 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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid and protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees that it would be
futile for them to select the Union as their collective-
bargaining representative; expressly or impliedly
threaten to reduce wages if employees select the Union
to represent them; interrogate employees about their
union sympathies and activities and the activities and
sympathies of fellow employees; solicit grievances
from employees and expressly or impliedly promise to
remedy those grievances in order to discourage union
activities among employees.
WE WILL NOT institute a new and stricter discipli-
nary system in response to employee union activity to
discourage such activity or to discharge union activists.
WE WILL NOT issue warnings, discharge, or take
other disciplinary action against any employee for en-
gaging in protected concerted or union activities.
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.
861PERFORMANCE FRICTION CORP.
1 At the conclusion of counsel for the General Counsel’s case, he
moved to amend the complaint in certain particulars. Respondent ob-
jected to the amendment. When I stated that I was prepared to grant
the motion, Respondent’s counsel specifically requested that I not
rule on the motion to amend the complaint until Respondent had
concluded its evidence. I informed Respondent that I would not
grant counsel for the General Counsel’s motion to amend the com-
plaint at that time, but only because of Respondent’s request. I in-
formed Respondent that it should assume for purposes of putting in
its evidence that it was required to address such issues. I inadvert-
ently failed to grant the motion at the conclusion of the trial, and
therefore counsel for the General Counsel’s motion to amend the
complaint is now granted.
WE WILL rescind the new and stricter disciplinary
system.
WE WILL rescind any disciplinary action taken pur-
suant to the stricter disciplinary system.
WE WILL offer Manuel Montecon, Martha Hinson,
Merri Rowe, Haywood Steel, Susan Hudson, Jerry
Kennedy, Kyle Myers, Bernard Young, Leslie Teague,
and any other employees discharged pursuant to the
new disciplinary system, immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions without prej-
udice to their seniority or other rights and privileges
and WE WILL make them whole, with appropriate inter-
est, for any loss of earnings they may have suffered
as a result of the actions against them.
WE WILL remove from our files any reference to the
warnings, discipline, and discharges found unlawful,
and notify each of the individuals so warned, dis-
ciplined, or discharged, in writing, that this has been
done and that the warnings, discipline, or discharge
will not be used against them in any way.
PERFORMANCE FRICTION CORPORATION
Donald R. Gattalaro, Esq., for the General Counsel.
Weyman T. Johnson, Jr., Esq. and Kimberly M. Zywicki, Esq.
(Paul Hastings, Janofsky & Walker), of Atlanta, Georgia,
and William Rikard, Esq. and Keith M. Weddington, Esq.
(Parker, Poe, Adams & Bernstein), of Charlotte, North
Carolina, for the Respondent.
Marcia Borowski, Esq. (Stanford, Fagan & Giolito), of At-
lanta, Georgia, for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in York and Rock Hill, South Carolina, on December
5, 6, 7, and 8, 1994. The underlying charge was filed on
May 23, 1994, and later amended. A complaint and notice
of hearing issued on July 8, 1994.
This case concerns allegations Respondent unlawfully
threatened employees that it would close its plant before a
union would be allowed to represent employees; that it
would be futile for employees to select the Union as their
representative; that Respondent would reduce wages and ben-
efits of employees if they selected the Union to represent
them; that Respondent interrogated employees in order to as-
certain their union sentiments; that Respondent solicited
grievances from employees and expressly or impliedly prom-
ised to remedy those grievances in order to discourage
unionization; that Respondent instituted a new disciplinary
system during the union campaign which was more stringent
than its prior policy, and, pursuant to the new policy, dis-
charged various employees in order to thin its ranks of union
supporters.
In its answer to the complaint, Respondent admitted cer-
tain allegations, including the filing and serving of the
charges; its status as an employer within the meaning of the
Act; the status of United Automobile, Aerospace, Agricul-
tural Implement Workers of America (UAW) as a labor orga-
nization within the meaning of the Act; and the status of cer-
tain individuals as supervisors and agents of Respondent
within the meaning of Section 2(11) of the Act. Respondent
denied having engaged in any conduct which would con-
stitute an unfair labor practice within the meaning of the Act.
At the trial herein, all parties were represented and af-
forded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence.1 Following the
close of the trial, all parties filed timely briefs which have
been duly considered. On the entire record in this case and
from my observation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Performance Friction Corporation is a South Carolina cor-
poration which manufactures and sells nonasbestos disk
brake pads. In the course and conduct of its business, Re-
spondent annually purchases and receives at its South Caro-
lina facility goods and materials valued in excess of $50,000
directly from points located outside the State of South Caro-
lina. Respondent also annually sells and ships from its South
Carolina facility products valued in excess of $50,000 di-
rectly to points located outside the State of South Carolina.
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
United Automobile, Aerospace, Agricultural Implement
Workers of America (UAW) is, and has been at all times
material, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At its facility in Clover, South Carolina, Performance Fric-
tion manufactures nonasbestos disk brake pads and other
friction materials. Performance Friction sells its brake pads
directly to automobile manufacturers such as Ford Motor
Company and to wholesalers and retailers in the replacement
parts market. Other customers include many of the Nascar
Winston Cup, Indianapolis 500, and IMSA racing teams.
Respondent’s president and production manager is Don
Burgoon, who acquired the company from his father.
Burgoon moved the manufacturing facility from its former
site in Ohio to the current facility in Clover, South Carolina.
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since that time, Respondent has grown from approximately
25 employees in 1986 to nearly 400 employees in 1994.
There is no dispute about the fact that long before any
union organizing activity at Respondent’s facility, and in
spite of extremely high employee turnover, Respondent pro-
duces what is recognized as a quality product. Otherwise, it
would not be so widely used under such extreme racing con-
ditions. An article on the Company that appeared in Under
Car Digest, a magazine/trade publication, shows that a com-
mitment to quality has long been touted by Respondent.
The Union began its organizing activities at Respondent in
early February 1994. Burgoon himself admitted that he be-
came aware of those activities in February. When asked if
he was against the Union, Burgoon also admitted, ‘‘I am. I
was, I am.’’ Burgoon admitted that he did not hesitate to let
his employees know he was against the Union. Assistant Pro-
duction Manager Michael Ford also admitted being against
the Union and that he was disturbed by employees distribut-
ing union handbills on Respondent’s premises. Burgoon and
Ford also admitted trying to keep track of the employees
who supported the Union. Burgoon testified, ‘‘We were al-
ways trying to be aware if there was a vote, where we would
stand.’’ Ford testified that he heard numerous rumors about
who was active on behalf of the Union, and that he consist-
ently passed that information on to Burgoon. Burgoon re-
called specifically that he heard employees Susan Hudson,
Jerry Kennedy, and Manuel Montecon were engaged in
union activities.
B. March 1994: Respondent’s Meetings with Employees
Martha Hinson and Susan Hudson testified that on or
about March 2, Burgoon and Assistant Production Manager
Ford conducted a meeting in Respondent’s warehouse for all
first- and second-shift employees where they addressed the
union campaign. According to Hinson, the meeting included
everyone on first and second shift, totaling approximately
100 to 150 employees. Hinson and Hudson testified that
Burgoon told the assembled employees he had heard a rumor
that the Union was trying to organize the plant. Burgoon
stated that he wanted to ‘‘nip it in the bud.’’ Hinson testified
that Burgoon stated he would do everything in his power
‘‘legally or otherwise’’ to stop the Union. Hinson testified
that Burgoon asked rhetorically what the Union could do for
employees, and then replied himself ‘‘that it wouldn’t do
nothing for us because the plant would be closed, that there
was no union coming in there, [and] that he would close the
plant before a union would come in.’’
During the meeting, an employee asked about the negotia-
tion process. According to both Hinson and Hudson, Ford
answered, ‘‘We’ll negotiate wages. How much do you want
to lower them,’’ adding, ‘‘Yes, we’ll negotiate. No, no, no.’’
Hudson admitted that somewhere in the context of those re-
marks, Burgoon made the statement that in negotiations,
‘‘Pay could go either way, up or down.’’ Hinson also testi-
fied credibly that Ford or Burgoon said employees would be
required to pay union dues, that they would be paying some-
one else to do their talking for them, and that Respondent
‘‘could lower wages’’ as a result of the collective-bargaining
process. Apparently it was then, according to Hudson, that
Burgoon said, ‘‘Here’s my negotiations. No, no, hell no.’’
Burgoon and Ford both denied that Burgoon threatened
plant closure in the event of unionization. Burgoon testified
that in one of the meetings he held with employees, not nec-
essarily this meeting, he simply opined that one of the rea-
sons unions were not beneficial to employees was because
they could not prevent a plant closing. Burgoon denies
threatening that he would close the plant if employees be-
came unionized. Burgoon admits simply that he told employ-
ees of a Ford plant he knew which was unionized, and was
closed. Similarly, Ford testified, ‘‘Don [Burgoon] gave an
example of a company going out of business in Canton, Ohio
when the [union] came in. [Burgoon] just said that he re-
members as a child, or when he was younger that the Union
came into a plant and then later the plant shut down.’’
Burgoon denied ever threatening to reduce wages, and both
Burgoon and Ford denied Burgoon saying he would nego-
tiate simply by saying, ‘‘no, no.’’ Burgoon admitted telling
employees that if there were negotiations, Respondent would
begin with a clean sheet of paper, but denies the other state-
ments reported by Hinson and Hudson regarding negotiations
and/or the reduction of wages.
As between Hinson and Hudson on the one hand, and
Burgoon and Ford on the other, I have absolutely no hesi-
tation crediting Hinson and Hudson. The demeanor of both
Burgoon and Ford in particular left much to be desired, and
both impressed me as being rehearsed to support the other.
Respondent offered, and I admitted over objections from
both counsel for the General Counsel and counsel for the
Union, an audio tape recording of what Burgoon said was a
captive audience meeting he allegedly held with employees
on February 9, 1994. The tape was offered, and specifically
received by me, simply for the stated purpose of allowing the
parties to evaluate for themselves the purported contents of
at least one of Burgoon’s meetings with employees. Now in
its posttrial brief, counsel for Respondent argues for the first
time that since the February 9 meeting was the first captive
audience meeting with employees, it is the one at which un-
lawful speech allegedly occurred, and on the basis of that
tape, I should conclude that nothing unlawful took place. I
reject that argument for numerous reasons.
To even make this argument now suggests that Respond-
ent was engaged in trickery when it offered the tape. I admit-
ted the tape for the stated purpose of it being merely an ex-
ample of a single meeting precisely because Respondent
made no claim that it was the actual meeting testified to by
Hinson and Hudson. I would never have admitted the tape
for that purpose because Respondent offered only the barest
foundation for its admission. Had there been any suggestion
that Respondent was offering the tape to rebut Hinson and/or
Hudson, I would never have admitted the tape without Re-
spondent laying a proper foundation, including evidence con-
cerning the recording device, the operator of the device, the
authenticity of the recording, and custody and preservation of
the recording. In short, I would not have admitted the tape
based on a lack of foundation had Respondent shown even
the slightest inkling that it was being offered to rebut the tes-
timony of Hinson and/or Hudson. For example, Burgoon tes-
tified that the tape was a tape of the February 9 meeting, but
Burgoon did not even make the tape. Burgoon testified that
he had Darrick Moss make the tape. Even though Moss testi-
fied, he was never asked to identify or authenticate the tape
that Burgoon testified Moss made. The tape which I received
was offered by Respondent, and received by me, specifically
863PERFORMANCE FRICTION CORP.
as simply an example of a meeting. It in no way stands to
rebut the credible testimony of Hinson and Hudson.
Last, but not least, even the tape as admitted does not
serve to rebut Hinson and Hudson because of the numerous
gaps in the tape, and in Respondent’s own transcript of the
tape, where the tape is altogether unintelligible. Literally
anything might be contained in those unintelligible portions
of the tape.
Hinson and Hudson also testified credibly concerning a
second meeting which Burgoon and Ford held with employ-
ees on or about March 9. Hinson testified that at the begin-
ning of this second meeting, Burgoon asked employees to
tell him why they wanted a union to organize his plant at
that time. A discussion ensued concerning the fact that em-
ployees wanted better benefits. An employee asked if wages
would increase with a union representing them. Ford replied
that if employees selected a union to represent them, Re-
spondent would negotiate with the Union, and then asked the
rhetorical question, ‘‘How much lower do you want them to
go?’’ Ford denies stating that wages would go down, but ad-
mits he told employees that negotiations would ‘‘start from
scratch.’’ Burgoon likewise admitted that he told employees,
‘‘We’d negotiate with a clean sheet of paper.’’
Hinson testified credibly that Burgoon then resumed ask-
ing employees why they wanted a union. In response to var-
ious employee comments, Burgoon stated that he would look
into a 401(k) plan for employees, and he would rent a tent
for smokers and put it up out back for them.
Hudson testified very similarly to Hinson. Hudson recalled
Ford saying, ‘‘So you want a union. Let’s negotiate pay.
How much do you want it cut?’’ Hudson acknowledged that
at some point Ford stated that pay could increase or de-
crease. Hudson testified credibly that Burgoon also inter-
rupted Ford, stating, ‘‘Here’s my negotiations, no, no, hell
no.’’ Hudson also recalled that after asking employees why
they wanted a union, and one employee mentioning raises,
Burgoon offered an employee a brake shoe in lieu of a raise.
The employee complained about the flippancy of Burgoon’s
remark. Burgoon then said that he did not mean the remark
‘‘that way’’ and that he would try to work things out.
C. Early April 1994: Conversations Between
Management and Employees
Susan Hudson testified credibly that in early April 1994,
she was called by Supervisor Bill McBride to the training
room, where the two of them met privately. McBride asked
Hudson why employees were so unhappy, why they wanted
a union, and specifically, why she wanted a union. Prior to
this meeting, Hudson had not told anyone that she supported
the Union, but she had handed out union literature to other
employees.
Hudson told McBride that the only reason he was asking
her those questions was because Burgoon had asked him to
do so. McBride denied this, telling Hudson that Burgoon was
unaware of their conversation. Hudson told McBride that
people were treated poorly, especially by Burgoon. McBride
said that Burgoon did not realize how badly he treated his
employees. McBride told Hudson that he had almost resigned
because Ford and Burgoon had treated him in a similar fash-
ion. Hudson then detailed a number of employee concerns
about working conditions. McBride assured Hudson that he
‘‘was there to help make changes.’’
McBride did not deny this conversation with Hudson.
When asked whether he had any conversation with Hudson
in which he ‘‘attempted to tell her that you were going to
take care of any problems that she had,’’ McBride answered,
‘‘As I have with every other employee on first shift.’’ I cred-
it Hudson entirely.
Martha Hinson testified credibly that on or about April 7,
McBride approached her while she was working in the ware-
house. Hinson and fellow employee Rocky Holloway were
working in the warehouse with a ladder, and neither of them
were wearing safety glasses, a fact which becomes signifi-
cant later. Hinson testified credibly that McBride was hold-
ing a union flyer in hand and, as he approached, asked an-
grily, ‘‘I thought this stuff done stopped. What is this mess
still going on?’’ Hinson answered the obvious, that it was a
union flyer. McBride asked why the Union was still trying
to organize. Hinson replied that Respondent needed to make
some changes. McBride then encouraged Hinson to speak
freely and promised that their conversation would be ‘‘off
record.’’ McBride asked why so many employees were un-
happy with working conditions. Among other things, Hinson
expressed some safety concerns. McBride told Hinson that
Respondent was planning to start a safety committee in the
immediate future and that its first meeting would be the next
week. Hinson, who had previously volunteered to act on that
committee and been told that the committee was for team
leaders only, complained that no employees were involved.
McBride then responded that he was appointing Hinson to
the committee. McBride’s denial of this conversation, includ-
ing his denial that he ever held any ‘‘off-the-record’’ con-
versation with an employee because he did not know how a
conversation could be ‘‘off-the-record,’’ was less than con-
vincing. I find that the conversation occurred as described by
Hinson.
Hinson also testified credibly about a meeting held by Su-
pervisor Steve Keegan and team leader Belinda Dailey on
April 17 with various employees, including Hinson and em-
ployee Rocky Holloway in Keegan’s office. Keegan told
Hinson and Holloway that he wanted to know what made
them happy and what made them unhappy concerning their
jobs and working conditions. Keegan said he wanted to know
how he could make their jobs better. Hinson replied that
Dailey had problems communicating with employees, a prob-
lem Dailey acknowledged. Hinson told Keegan and Dailey
other problems which had caused employees to want a union.
Respondent did not call either Keegan or Dailey as wit-
nesses, and Hinson’s credible testimony stands totally
unrebutted.
Later that same day, employee Holloway and team leader
Dailey had a confrontation. Hinson, who witnessed the con-
frontation, remarked to Holloway that things would be dif-
ferent after the Union became their bargaining representative.
Dailey, overhearing Hinson’s remark, returned and said an-
grily, ‘‘Union. That’s all I’ve heard is union, union, union.
I am so sick of union, union, union. There’s no union com-
ing in here.’’
D. April 19, 1994: The New Discipline System
The complaint alleges, and counsel for the General Coun-
sel contends, that on April 19, 1994, Respondent instituted
a new and stricter disciplinary procedure in response to em-
ployees’ union activities. During the investigation of this
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 R. Exhs. 1 and 7.
case by the Board’s Regional Office, Assistant Production
Manager Ford admitted that Respondent instituted a new dis-
ciplinary system on April 19. At the trial herein, however,
Respondent asserted that in fact it changed the disciplinary
system in November 1993, prior to the advent of union activ-
ity, and that Ford’s affidavit was simply ‘‘an error.’’
As is often the case, it helps to understand what is not in
dispute, as well as what is. What is not in dispute is that at
some point Respondent instituted a new and stricter discipli-
nary system. Under both systems, various rule infractions are
considered either ‘‘minor’’ or ‘‘major.’’ Under the ‘‘old sys-
tem,’’ supervisors used their discretion to classify infractions
as ‘‘minor’’ or ‘‘major.’’ Three minor violations within a 30-
day period equaled one major violation. Two major viola-
tions within a 30-day period resulted in a 3-day suspension
without pay. Three major violations within a 30-day period
resulted in discharge. Under the ‘‘new system,’’ three minor
violations within a 30-day period still equals one major vio-
lation. Two major violations, however, within a 90-day pe-
riod results in demotion of one pay level or, if demotion is
impossible, then dismissal. Further, three major violations
within 6 months also results in demotion or, if not possible,
dismissal. This stricter system resulted in more discharges,
including numerous union supporters. As noted, Respondent
now argues that it instituted the new system in November
1993, prior to any union activity, in conjuction with a change
in pay scales and the method for employees receiving raises
by going from one pay scale to the next.
Just as there is no dispute that at some point in time Re-
spondent instituted this new and stricter disciplinary system,
likewise there is no dispute that it was in November 1993,
Respondent revised its pay scales and method for progres-
sion. The dispute, at least as defined at the trial stage herein,
is whether Respondent instituted the new disciplinary system
in November 1993, as it now contends, or whether it intro-
duced that system in April 1994, in response to employees’
union activities. For reasons fully described below, I find
that the evidence shows the new disciplinary system was in-
stituted in April 1994.
During the investigation of these unfair labor practice
charges by the Board’s Regional Office, Assistant Production
Manager Mike Ford, who is second only to Burgoon in Re-
spondent’s chain of command, stated in a sworn affidavit
that Respondent instituted this new system on April 19,
1994. This was not an affidavit taken by an investigating
Board agent who might have misunderstood, misinterpreted,
or perhaps even arguably misquoted Ford. This was an affi-
davit prepared by and submitted through Respondent’s own
counsel to the Board as a part of Respondent’s position state-
ment. Nor did Ford say in this affidavit only once or in pass-
ing that Respondent introduced this system on April 19.
Rather, in this affidavit Ford stated uncategorically over and
over that Respondent revised its disciplinary system on April
19, and offered a lengthy justification for doing so at that
time. Respondent’s counsel even sent a position letter to the
Board’s Regional Officer wherein he confirmed the same
date.
At the trial herein, Ford testified that the new disciplinary
system was instituted in November 1993, and that his affida-
vit to the contrary was simply in error. Ford asserted that Re-
spondent experienced problems with the old system being in-
effective because employees viewed the 3-day suspension as
‘‘sort of a vacation.’’ Ford admitted that part of the purpose
for changing the system was to discharge more employees.
As Respondent’s counsel paraphrased Ford’s testimony in his
posttrial brief, ‘‘Given the high number of violations required
in a relatively short period of time before an employee could
be terminated, PFC had been unable to eliminate poorly per-
forming employees from the work force.’’
Ford testified that beginning in late summer 1993, a group
of management employees, supervisors, and hourly employ-
ees began meeting to consider revising Respondent’s pay
structure. As a result of these meetings, in November 1993,
Respondent instituted a new pay system with various pay
levels whereby an employee could advance from one to the
next by taking and passing certain tests. There is no dispute
about this limited aspect of Ford’s testimony.
Ford also claimed, however, that it was in conjunction
with these changes in the pay scales that Respondent
changed its disciplinary system. Tom Davis, Respondent’s
controller, claimed to be able to pin down the precise date
of the change in the disciplinary system by referring to pay-
roll records which showed that the change in pay scales oc-
curred on November 15, 1993. Davis’ assertion, however, is
circuitous and begs the question since there is no dispute that
pay scales were changed at that time. The fact that Respond-
ent held meetings with employees to explain the new pay
scales is similarly of no help. Employee witnesses testified
credibly that while such meetings were certainly held to dis-
cuss the new pay system, there was absolutely no discussion
and no change in the disciplinary system at that time.
Both Ford and Burgoon testified under oath that they at-
tended numerous meetings with supervisors and hourly em-
ployees which resulted in the changes in Respondent’s pay
system and, they alleged, its disciplinary system. Both Ford
and Burgoon claimed repeatedly that notes were kept of
these meetings. Ford, for example, claimed that he attended
15 to 20 such committee meetings prior to November 1993,
at which he took notes, during which the new disciplinary
system was devised. Ford testified also that he spoke to em-
ployees on 15 to 20 other occasions about the new discipli-
nary procedure. Ford even claimed that prior to giving his
June 1994 affidavit through counsel, he reviewed a file
which contained notes of the afforementioned meetings. Ford
claimed that he simply erred in giving his affidavit. Burgoon
and Controller Davis similarly testified that they attended
such committee meetings at which notes were kept. In spite
of all this testimony, Respondent did not offer one single
note from any of these meetings to prove that a new discipli-
nary system was ever discussed during that time frame. Nor
did Respondent offer a single hourly employee witness, a
group of whom allegedly attended these committee meetings,
to testify that a new disciplinary system was ever discussed,
even though Burgoon testified that the employees who
served on that committee were still employed by Respondent.
I draw the adverse inference that if such notes or employee
witnesses had been produced they would not support Re-
spondent’s position.
Assistant Production Manager Ford and Controller Davis
testified that in November 1993, Respondent posted two doc-
uments which were introduced as exhibits herein,2 which
show that Respondent changed not only job rates but the dis-
865PERFORMANCE FRICTION CORP.
ciplinary system. One of these documents, Respondent Ex-
hibit 1, purports to be an actual copy of a notice posted by
Respondent on bulletin boards in and about its facility in No-
vember 1993. The other, Respondent Exhibit 7, is the docu-
ment which Controller Davis testified was prepared to inform
employees of the job rate changes. On further inspection it
quickly becomes obvious that the second of these documents
has no substantive weight whatever in deciding when the
new discipline system was imposed. Davis testified that what
was posted was posted on November 1, yet when Davis was
shown that Respondent Exhibit 7 contains entries for em-
ployees hired after November 1, Davis simply declared that
the exhibit was a document updated from the original. Davis
testified that Respondent Exhibit 7 was ‘‘not [posted] exactly
in this format . . . but, this sheet here was prepared from the
same computer spread sheet as what was posted.’’ One must
ask, if Respondent did prepare a document to inform each
employee on the payroll prior to November 1 what changes
there would be in their wage rates as a result of the new pay
scales, why would Respondent ever have reason to update
such a document to include employees hired after that date.
Respondent Exhibit 7 contains the names of at least 21 em-
ployees whose hired date is listed as occurring after Novem-
ber 1, 1993. It is highly unlikely, therefore, that Respondent
Exhibit 7 was ever posted on or near November 1. Even if
it was, however, Respondent Exhibit 7 simply shows the
names of the employees and their hourly wage rate. It does
not contain anything on its face which makes any reference
to a new disciplinary system, and therefore I find it to be of
no help in resolving the issue.
The other document, Respondent Exhibit 1, which Re-
spondent claims was posted on or about November 1, 1993,
is in reality the lone document which Respondent offers as
evidence that employees were notified of a new disciplinary
system in November 1993. A careful analysis of this docu-
ment gives me good reason to believe it should be viewed
very suspiciously. The document itself is not dated, and no
one testified to creating the document. An employee witness,
Merri Rowe, testified credibly that she had never seen that
document before, but rather she had seen another document
posted in November 1993, which showed only the upper por-
tion of Respondent Exhibit 1, in enlarged type, without the
lower one-third of the document being a part of the original.
Even without Rowe’s testimony, careful scrutiny of Respond-
ent Exhibit 1 raises more questions than it answers.
At the top, the document contains a section with the head-
ing ‘‘Pay Levels’’ and then lists seven specific pay levels
and their base rate. Below that, it contains a second section
captioned ‘‘Definition Of Levels.’’ Although there are seven
pay levels enumerated in the first section, only four pay lev-
els are described in any detail in the second portion. Further
scrutiny reflects that the document, as presented, appears to
have been altered in some way so that it now reads in a re-
verse format. Nearest the top of the second section is an
entry which reads ‘‘Level 4 includes:’’ after which 10 skills
or apparent qualifications are listed. Then below that, not
above it as would be normal, is an entry which reads, ‘‘In-
cludes all items in level 3 and the following:’’ Immediately
below that is the entry which reads ‘‘Level 3 includes’’ and
lists skills or qualifications for level 3. In other words, as
presented, this middle section of the document makes sense
only if read from the bottom up, rather than from the top
down as is normal, and as is true with the rest of the docu-
ment. The critical language which Respondent now relies on
is contained in a third section of the document near the bot-
tom. This third section contains 11 specific items which are
not enumerated, however, and are preceded merely by aster-
isks. Unlike the top two portions, which contain specific cap-
tions, the bottom third section of the document contains no
caption or heading. Thus, this third and very important sec-
tion is presented in a format altogether different from the rest
of the document.
Given the format in which it exists, I simply cannot be-
lieve that the document was ever intended for publication to
employees or ever used to be posted to notify them of either
new pay levels or new discipline. Not only does a major part
of this document read backwards, from bottom to top, it de-
scribes skills and qualifications for only four of the enumer-
ated seven pay levels. If this were posted in the format in
which it now appears for general employee consumption, at
the very least it would almost certainly lead employees to
conclude that as a practical matter they should not expect to
rise above level 4. In the final analysis, in the format in
which it now appears this document simply makes no sense.
I cannot help but wonder if in preparation for this trial some-
one did not borrow portions of some other document or doc-
uments which they somehow managed to rearrange in such
a hurry that it now has a completely nonsensical format.
My suspicions about Respondent Exhibit 1 are by no
means the only reason, or even the primary reason, why I
conclude that the new disciplinary system was instituted in
April 1994, and not in November 1993. It is simply one of
many factors, as is the adverse inference drawn by Respond-
ent failing to provide purportedly existing notes of meetings
which might support Respondent’s position. Yet another fac-
tor is a careful scrutiny of Ford’s testimony. Ford testified
not only that the new disciplinary system was installed in
November 1993, he also testified as follows:
When we changed the disciplinary system in Novem-
ber of ‘93, we updated the packets that we gave out to
all the new hires that had our new policy in it, our pol-
icy on both disciplinary and wages, so the information
that the employees were given was the new information
that was revised in November of ‘93 . . . .
The Respondent, however, never produced any such ‘‘up-
dated packets’’ given to new hires between November 1993
and April 1994. In fact, from documents produced pursuant
to counsel for the General Counsel’s subpoena and intro-
duced as exhibits by him, Ford’s testimony was shown to be
utterly false, and in fact employees hired between November
1993 and April 1994 were simply given the 1993 handbook
which describes the ‘‘old system’’ of discipline. Employees
hired between November 1993 and April 1994 were even re-
quired to sign a document encoded with the date ‘‘9/22/93,’’
which makes reference to the old disciplinary system.
What is more, the disciplinary documents themselves
issued between November 1993 and April 1994 show that
during that period, supervisors were continuing to mete out
discipline pursuant to the old system. No fewer than 11 in-
stances of discipline were issued during that period not only
on forms used under the old system, but clearly utilizing
rules of the old system. The old forms allowed supervisors
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Due to Respondent’s high turnover, few employees have any sig-
nificant tenure.
discretion in categorizing offenses as major or minor. In con-
trast, all disciplinary forms in evidence dated after April 20,
1994, are on new forms which rigidly and inflexibly set out
violations by category and severity. The evidence, including
numerous disciplinary reports in Respondent’s own records,
shows that the old disciplinary system was very much in use
until at least mid-April 1994. I conclude that Respondent’s
new disciplinary system was put into effect on or about April
19, 1994, exactly as Ford testified in his June 1994 affidavit.
E. Discharges Pursuant to the New Disciplinary System
April 20: Discharge of Martha Hinson
Martha Hinson began working for Respondent in January
1994.3 Hinson worked on first shift in packing, shipping, and
receiving.
Hinson was one of the most active union supporters. As-
sistant Production Manager Ford admitted he was aware of
Hinson’s union sentiments and was disturbed by her distrib-
uting union handbills. As previously discussed, Supervisor
McBride approached Hinson with a union flyer and asked
Hinson angrily what it was. Hinson stood up for the Union
to McBride. On April 19, Hinson’s team leader, Dailey,
heard Hinson mention the Union, became angry, and said
there would be no Union coming in to represent Respond-
ent’s employees. On that same day, Respondent instituted its
new disciplinary system. The very next day, Hinson was dis-
charged pursuant to that new system. As Respondent states
in its posttrial brief, Hinson was ‘‘terminated for committing
three major violations in 6 months,’’ a standard imposed by
the new system.
During the morning of April 20, Supervisor Steve Keegan
and team leader Belinda Dailey, neither of whom testified,
met with Hinson and Rocky Holloway. Keegan issued
Hinson and Holloway major violations because certain parts
had been mislabeled and shipped to an incorrect address.
Hinson protested the discipline because she had merely se-
lected parts for shipment, and had not even handled the ship-
ping label. Keegan told Hinson, however, that she was re-
sponsible because she was a member of the team that mis-
shipped the parcel. Hinson asked if team leader Dailey would
also be punished since she too was a member of the team.
To this Keegan replied no, that Dailey ‘‘didn’t have nothing
to do with these here parts.’’ Holloway resigned rather than
accept a pay cut under the new disciplinary rules. Walker
asked Hinson if she also intended to quit. Hinson refused to
quit.
Later that day, Assistant Production Manager Ford sum-
moned Hinson to met with him and Supervisor Keegan. Ford
began the conversation by focusing on the previously de-
scribed shipping error. Hinson asked Ford if he intended to
issue her two warnings for the same incident. Ford then said
that he was issuing a second warning to Hinson for failing
to wear safety glasses. Ford said he had seen Hinson 2 days
before that entering the plant from the warehouse with her
safety glasses propped on top of her head, and that she
brought the glasses down to her face while Ford was looking
at her. Hinson asked Ford why he had waited 2 days to dis-
cipline her. Ford replied that he had been too busy. Ford then
discharged Hinson for having two major violations within 90
days.
Several witnesses testified that it was common practice not
to wear safety glasses in the warehouse, and the record es-
tablishes that wearing safety glasses in the warehouse was
not strictly enforced. Hinson testified credibly that Ford him-
self wore no safety glasses when he conducted captive audi-
ence meetings in the warehouse. Further, Burgoon himself
had seen Hinson not wearing safety glasses in the warehouse
and had not written her up. Respondent’s witness Walker
first testified that the rule requiring wearing of safety glasses
referred just to the plant floor, not the warehouse. On redi-
rect, however, Walker changed course and agreed with Re-
spondent’s counsel that the warehouse was part of the plant.
April 27: Discharge of Merri Rowe
Merri Rowe began working for Respondent on September
21, 1993. Rowe became an active union supporter from the
very beginning of the campaign by collecting names of inter-
ested employees to pass on to the union organizer.
On April 21, Supervisors Ed Brewer and Jimmy Walker
held a meeting with six employees, including Rowe and
Haywood Steel. Brewer and Walker began the meeting by
first discussing safety and job related issues. After discussing
these issues, Walker asked Rowe directly why the Union was
trying to organize Respondent. Rowe responded in detail re-
garding what she considered to be employee concerns, in-
cluding holiday pay, vacation schedules, and the testing pro-
gram whereby employees could move from one pay scale to
the next. Rowe said that it was hard for her as a third-shift
employee to take the pay raise test which was given only
during first shift. Walker responded that as of that day, Rowe
could take the test for the next pay level during her own
work shift. Steel testified credibly that Walker then asked the
group in general, ‘‘What can we do to make your jobs run
better? If you have any gripes you can bring it out now.’’
Steel testified credibly that prior to this meeting, no one from
management had ever solicited his or other employees’ con-
cerns, nor ever promised to remedy any problems.
On April 27, Rowe was discharged pursuant to Respond-
ent’s new disciplinary system. During February 1994, Re-
spondent had issued a major violation to Rowe for passing
defective work on to the next process. On March 8, Rowe
received a major violation for not wearing her safety glasses
while on the plant floor.
On April 26, Rowe telephoned the plant and informed her
supervisor that she could not come to work because her es-
tranged husband had suddenly refused to care for their chil-
dren and she was unable to secure a babysitter so late at
night and on such short notice.
On the next day, April 27, Respondent issued Rowe a
major violation for the previous days’ unexcused absence.
Rowe was then discharged for accumulating three major vio-
lations within 6 months.
The record reflects that at least two other employees who
had unexcused absences within a week of Rowe’s were not
written up and thus not terminated. Rowe’s own supervisor
admitted that he had given other employees excused ab-
sences for reasons not specified on the form.
867PERFORMANCE FRICTION CORP.
F. April 28: The Truck Incident
On April 28, 1994, union organizer Janice Landis, em-
ployee Susan Hudson, and recently discharged employee
Martha Hinson were distributing union literature outside Re-
spondent’s facility prior to the beginning of first shift. After
some time, Hudson left to report for work on first shift. At
one point, while Landis and Hinson were sitting in Landis’
car parked on the side of the road, a policeman came out of
Respondent’s plant and stopped near Landis’ car. The police-
man explained that Respondent had called to complain about
their leafleting activities. Burgoon admitted that he had
called the police. The policeman told Landis and Hinson that
they were not doing anything wrong and that they could con-
tinue to stay there, just so long as they did not go on plant
property. The policeman left. Landis and Hinson then re-
sumed positions standing on Carbon Metallic Road, which
leads away from Respondent’s plant, about 25 feet from the
intersection where it meets a stop sign at Highway 55. Lan-
dis and Hinson stood in the middle of the road in order to
pass out handbills to employees coming in to the first shift
as well as employees leaving from the third shift who had
to stop at the stop sign.
Employee Haywood Steel left the plant from third shift,
stopped and accepted literature from Landis and Hinson, and
drove off. Immediately after Steel drove off, a truck being
driven by Burgoon approached Landis and Hudson, then
served toward them, and slammed on its brakes. Landis,
Hinson, and Steel, who witnessed the incident in the rear-
view mirror of his vehicle, all testified that the truck stopped
so abruptly there was much screeching of tires, and even
some smoke. Although Burgoon denies there was smoke,
even Burgoon admits that he left tire marks in the road. The
truck came to a halt just short of where Landis and Hinson
were standing. Burgoon then continued on to the stop sign,
abruptly made a U-turn, and returned to where the women
had been standing.
Steel also turned around and returned to where the women
had been standing to see if they were all right. Steel noticed
Burgoon driving the truck, and Mike Ford was in the pas-
senger’s seat. Burgoon asked Landis and Hinson, ‘‘What the
hell do you think you’re doing?’’ Burgoon claimed that Lan-
dis called him a ‘‘mother fucker.’’ Landis denied using that
expression, and although he was the passenger in the truck,
Mike Ford did not testify regarding this incident. In view of
Burgoon’s conduct, it would certainly not be surprising if
Landis cursed Burgoon, particularly in view of both Landis’
and Hinson’s credible testimony that Burgoon’s truck would
have hit them had they not jumped out of the way to the side
of the road. Landis told Burgoon that he knew she had a
right to be there distributing literature. Burgoon responded
that Landis’ car was illegally parked, drove up behind it, and
tried to telephone police from his car phone. When Burgoon
was unable to reach the police, Burgoon telephoned the plant
and told them to call the police. Burgoon then left.
After the incident, Landis, Hinson, and Steel all went to
the local police station where Landis swore out a warrant
against Burgoon. Steel testified that he witnessed a police re-
port which charged that Burgoon had intentionally driven to-
ward Landis and Hinson. At the time of the trial herein, this
police matter had not yet come to trial.
G. Other Discharges Pursuant to the New Disciplinary
System May 6: Discharge of Haywood Steel
Haywood Steel began working for Respondent on Novem-
ber 22, 1993. Steel was employed on the third shift as a
mold line press operator.
In March 1994, Steel attended an employee meeting dur-
ing which Third-Shift Supervisor Ed Brewer showed employ-
ees an antiunion film. Steel testified credibly that during this
meeting, he asked Brewer why he was only showing the neg-
ative side of unions. Steel stated that he had worked for a
unionized company for 9 years, and that the union had
helped him.
During April 1994, Steel became active in the union orga-
nizing drive at Respondent’s facility. Steel passed out union
flyers and collected employee signatures on a union petition
during his breaktime at the plant.
On April 18, Steel received a major violation for failure
to properly complete quality control paperwork.
On April 28, Steel witnessed Burgoon’s narrow miss of
Landis and Hinson as they were standing in the road handing
out union literature. Steel gave a statement to the police con-
cerning the incident.
On May 5, Steel was given a second major violation,
again for failing to properly fill out quality control paper-
work. According to Supervisor Walker, Steel had written
down the wrong code numbers on a first-piece inspection.
Walker, however, refused to show Steel his mistakes as he
had done in the past, and instead, wrote over what Steel and
his partner had done. As a result of being given this second
major violation, Steel was discharged pursuant to Respond-
ent’s new disciplinary system for having received two major
violations in a 90-day period.
May 27: Discharge of Susan Hudson
Susan Hudson began working for Respondent on August
9, 1993. From August 1993 until April 28, 1994, Hudson
worked in Respondent’s shipping department on the first
shift. During that time, Hudson became known as a very
good employee. She received no discipline whatever and sev-
eral ‘‘Attaboys,’’ a form of reward which can be accumu-
lated to equal a cash bonus.
Hudson also became one of the most active union support-
ers. Burgoon, Ford, and McBride all admitted they knew
Hudson was an active union supporter. In fact, on the morn-
ing of April 28, just prior to the incident in which Burgoon
and Ford narrowly missed Landis and Hinson as they were
distributing union literature on the roadway outside of Re-
spondent’s plant, Hudson had been out there too with Landis
and Hinson distributing union flyers. Hudson had left just
prior to the incident in order to report for work on the first
shift.
On the very same morning as Burgoon and Ford’s narrow
miss of Landis and Hinson, in fact at almost the very same
time, Respondent transferred Susan Hudson from her job in
the packing department to the mold line. Respondent trans-
ferred Hudson and three other employees to the mold depart-
ment allegedly to help relieve a ‘‘bottleneck situation.’’
Hudson testified credibly that when she was transferred to
the mold line, she was inadequately trained, given poor ma-
chinery to work with, and frequently transferred from press
to press. In his testimony, McBride testified that employee
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Larry Wright was trained on the mold line for a ‘‘couple of
weeks’’ before being turned loose on his own, and this was
considered rapid advancement. McBride further admitted that
a new mold operator would need to be trained on more than
just quality in order to function properly on the mold line.
Be that as it may, McBride admits Hudson’s testimony that
she was trained for only 3 days before being assigned to op-
erate a press by herself. McBride also admitted that the press
to which Hudson was assigned was often broken, and in fact
was even broken on the day Hudson was discharged as de-
scribed later. Finally, McBride admitted that in her short
time on the mold line, Hudson operated at least five different
presses. Nevertheless, even under these adverse cir-
cumstances, Hudson earned several ‘‘Attaboys’’ for excep-
tional performance while on the mold line.
On May 6, less than 2 weeks after being transferred to the
department, Hudson and fellow employee John Colvin were
working on a press making experimental brake prototypes.
Hudson discovered that she and Colvin had made a defective
pad, which Hudson described as being ‘‘taller’’ than other
pads, and Hudson brought this to the attention of team leader
Earnest Miller. Hudson testified credibly that a short while
later, McBride approached and told Hudson, ‘‘You have a
good eye. That’s why we wanted you on the mold line.’’
Hudson asked McBride to give her an ‘‘Attaboy’’ com-
mendation, and McBride agreed to do so. McBride claimed
in his testimony that he was only being sarcastic, and that
Hudson should have known this.
Later that day, team leader Miller told Hudson that he
would be issuing discipline to her for making the pad which
Hudson had called to his attention. Hudson asked Miller why
she would be getting discipline for something which
McBride had earlier commended. Miller told Hudson that he
did not know, and invited Hudson to talk to Mike Ford. Mil-
ler, Hudson, and Colvin then met with Ford. Hudson told
Ford that she believed the discipline to be unfair. Neverthe-
less, both Hudson and Colvin were given a major violation
for making this defective part.
On May 17, McBride issued Hudson a second major viola-
tion for failing to indicate on the ‘‘work in progress ticket’’
the next process to which certain parts were to be sent. Hud-
son admitted making this error.
On May 24, McBride placed a third ‘‘major violation’’ in
Hudson’s personnel file for an incorrect first-piece inspection
and for failing to properly fill out quality control paperwork.
McBride testified that he found mistakes on Hudson’s first-
piece inspection report following her shift on May 24. There
is no indication on this discipline that it was ever shown to
Hudson. She did not sign for it’s receipt, and there is no in-
dication on the form that she refused to do so, as there were
on other such forms.
On May 27, Hudson received another major violation
which resulted in her dismissal in accordance with Respond-
ent’s new disciplinary system. On that day, Respondent sum-
moned Hudson to the personnel office where McBride met
Hudson and told her that she was being disciplined and dis-
charged for passing bad parts on to the next operator. Hud-
son denied doing so. Hudson told McBride that they both
knew the press she was working on was defective and had
been consistently producing bad parts. Hudson stated that
they both knew that, but that she had not passed on bad parts
to the next process. McBride disagreed, issued the major vio-
lation to Hudson, and Hudson was discharged.
According to McBride, following McBride’s meeting with
Hudson, McBride reinspected the defective parts. He con-
cluded that in order for so many defective parts to have been
passed on, Hudson must have acted intentionally. Even
though she had already been discharged, McBride then wrote
up an additional employee action report dated May 27, for
making scrap unnecessarily and for intentionally passing de-
fective work to the next process.
Throughout Respondent’s case, it emphasized repeatedly
its demand for a quality product and its incredibly high em-
ployee turnover of almost its entire work force annually.
McBride acknowledged that Hudson had been an exemplary
employee in the shipping department, indeed, ‘‘a master
packer, and a quality inspector over in packaging.’’ McBride
asserted that this was the very reason why Respondent trans-
ferred Hudson on April 28. McBride acknowledged that out-
standing employees are hard to come by and are a valued
asset. Consequently, I asked McBride to explain why Re-
spondent did not transfer Hudson back to packing if it de-
tected that she was not working well as a mold operator.
McBride, clearly uncomfortable with this question, at first at-
tempted to avoid answering. McBride made no assertion that
Respondent has any policy or practice against taking such ac-
tion. I therefore prodded McBride for an answer, who finally
responded simply, ‘‘Sir. I can’t answer that.’’
May 30: Discharge of Manuel Montecon
Manuel Montecon began working for Respondent in Au-
gust 1992. At the time he was hired, Montecon informed Re-
spondent that he could only work third shift because he had
to drive his children to different schools each morning. From
August 1992 until February 1994, Montecon worked the en-
tire time as a ‘‘wobble riveter operator.’’ During his employ-
ment, Montecon received only one instance of discipline, in
February 1993, more than a year prior to his termination.
At the beginning of the union campaign during February
1994, Montecon began to canvass third-shift employees re-
garding their interest in having the Union represent them.
While Montecon had not attended any union meetings by the
time he was injured on the job as more fully discussed
below, Montecon did actively solicit names and addresses of
interested employees to pass on to union organizer Janice
Landis. Montecon testified credibly that during February
1994, team leader Jamie approached him while at work and
initiated a discussion about the Union. Jamie, who worked
under the direction of Supervisor Jimmy Walker, was
Montecon’s team leader. Jamie told Montecon that he had
heard about the union activity among employees and wanted
Montecon to fill him in. Montecon did so. Burgoon himself
identified Montecon as one of the people whose names he
had heard were engaged in union activity.
I do not credit Assistant Production Manager Ford’s claim
that he was unaware of Montecon’s support of the Union
when Montecon was discharged in May 1994. Ford’s credi-
bility is suspect on many levels for reasons discussed
throughout this decision, and this is but one example. It is
simply outrageous for Ford to claim he was not aware of
Montecon’s reputation for being involved in union activity
when Corporate President Burgoon himself named Montecon
869PERFORMANCE FRICTION CORP.
as one of those who he had heard were among the primary
union activists.
On the evening of February 28, not long after Montecon
was interrogated about the Union by team leader Jamie, Su-
pervisor Walker transferred Montecon from the riveter to the
powder coater machine. Montecon protested the transfer,
pointing out to Walker that he could not possibly work at the
powder coater machine removing parts from the moving con-
veyor belt because he is simply too short at 5 feet 3 inches
to reach parts moving along the backside of the conveyor
belt. Walker, however, refused to relent.
On the very first evening at the powder coater machine,
Montecon was injured by the conveyor belt system as he was
stretching to reach some parts. While the injury seemed
slight at first, the following morning Montecon’s finger was
swollen and throbbing. During the day, Montecon attempted
to telephone Respondent with no success. That evening,
Montecon telephoned Supervisor Walker who told Montecon
to see a doctor, which Montecon did on March 3. Dr. Mi-
chael Heinig diagnosed Montecon as having a tendon sepa-
rated from the bone. Heinig advised Montecon to remain off
work for at least 1 week. Heinig placed a splint on the finger
and advised Montecon to return to him on March 8. On the
way home from the doctor’s appointment on March 3,
Montecon stopped at Respondent’s facility and delivered
Heinig’s note to Supervisor Walker.
On March 8, Montecon returned to see Dr. Heinig. Heinig
wrote a note allowing Montecon to return to work on March
10, ‘‘light duty using right hand only next 8 weeks.’’ On
March 10, Montecon brought the note to Spervisor Walker
ready to report for work. Walker, however, told Montecon
that there was no light duty work and that Montecon should
stay off work until he was fully released by his doctor.
Montecon protested, pointing out that other employees were
assigned to light duty work in the past. Walker insisted that
Montecon not return until he could work without restrictions.
Montecon’s convalescence took longer than Dr. Heinig
first predicted. On May 3, Montecon had an appointment
with Heinig during which Heinig extended his convalescence
until at least May 18, a date at which Heinig set a future ap-
pointment for Montecon. Heinig gave Montecon a written
excuse to remain off work from May 3 until May 18. When
Montecon left Heinig’s office, he drove directly to Respond-
ent’s plant, where he went to the personnel office and asked
to see Personnel Manager Tom Davis. Unable to meet per-
sonally with Davis, Montecon left a copy of the written ex-
cuse from work with the receptionist, who said she would
give it to Davis.
Because of a death in the family out of town, Montecon
rescheduled his May 18 appointment with Dr. Heinig to May
24. At that appointment, Heinig released Montecon and gave
him a slip stating that he was able to return to work ‘‘full
duty.’’ As before, Montecon immediately took the note to
Respondent’s plant. On this occasion Montecon met with
Davis. Davis noticed that Heinig’s release was technically in-
complete in that Heinig had failed to check a box before the
phrase ‘‘Return to Full Duty.’’ Davis instructed Montecon to
return to Heinig and have Heinig check the box authorizing
a return to full duty. As Montecon was ill, he went home,
telephoned the doctor’s office and received permission from
the nurse to check the box. Montecon telephoned Supervisor
Walker about returning to work. Walker informed Montecon
that the plant was closed for Memorial Day and instructed
Montecon that he should return to work on May 30 with the
doctor’s note.
As instructed by Walker, Montecon returned ready to work
on May 30. Montecon met with Supervisors Walker and Ed
Brewer. Brewer told Montecon that Heinig’s note was irrele-
vant because Montecon had already been terminated on May
7. Montecon protested, saying that he had been recuperating
from a work-related injury. Brewer responded that Montecon
was trespassing and that he should leave immediately, which
Montecon then did.
Analysis and conclusions
The record shows that after Respondent learned of union
activity among employees, it held several meetings with em-
ployees where Burgoon and Ford attempted to ‘‘nip’’ that
activity ‘‘in the bud.’’ Martha Hinson, Susan Hudson, and
Heywood Steel all testified credibly concerning various state-
ments made by Burgoon and Ford at those meetings. I have
no trouble crediting their testimony over Burgoon and Ford.
Be that as it may, I do not credit Hinson that Burgoon stated
he would do everything in his power, legally ‘‘otherwise to
stop the Union. That specific statement is not corroborated
by any other witness, including Hudson or Steel. Similarly,
I find it impossible to rely on Hinson’s sole testimony that
Burgoon made an outright threat of plant closure. Even
though more than 100 employees were at the meeting where
that statement was allegedly made, counsel for the General
Counsel offered no corroboration of Hinson’s testimony.
Moreover, it would appear that Heywood Steel actually dis-
agrees with Hinson on this limited point. Hinson was by no
means incredible, and I simply find she was inaccurate in
these limited particulars.
On the basis of Hinson’s and Hudson’s credited testimony,
I find that in these meetings with employees, Burgoon and
Ford both clearly expressed to employees that it would be fu-
tile for them to select a union to represent them. While
Burgoon paid lip service to the fact that pay could go either
up or down, Ford told employees, ‘‘We’ll negotiate wages.
How much do you want to lower them? Yes, we’ll negotiate.
No, no, no.’’ Similarly, Burgoon told employees, ‘‘Here’s
my negotiations. No, no, hell no.’’ Even Burgoon admits
telling employees that if there were negotiations, Respondent
would begin with a ‘‘clean sheet of paper.’’ Similarly, Ford
admits he told employees that negotiations would ‘‘start from
scratch.’’ I find, however, in crediting Hinson and Hudson
that Burgoon and Ford did far more than that, and clearly
communicated to employees that Respondent would simply
negotiate by saying ‘‘no, no’’ to any union proposals. More-
over, I find that Burgoon’s and Ford’s comments constituted
an implied threat to reduce wages if employees selected the
Union to represent them. In making this finding, I am fully
mindful that Burgoon paid lip service to the fact that wages
‘‘could go up or down’’ in negotiations. The statement, how-
ever, that Respondent could lower wages, coupled with state-
ments that Respondent ‘‘would start from scratch’’ and
‘‘would start with a clean sheet of paper,’’ and then coupled
with the statement that Respondent would simply bargain by
saying ‘‘no, no’’ carries with it the implication that Respond-
ent would reduce wages. I find that Respondent thereby vio-
lated Section 8(a)(1) of the Act.
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the same time, Burgoon and Ford interrogated employ-
ees generally about why they wanted a union, and followed
that by various promises to employees to attempt to dissuade
them from supporting a union. I credit Henson and Hudson
that at an employee meeting on or about March 9, Burgoon
asked employees directly to tell him why they wanted a
union to organize his plant at that time. As will be discussed
in greater detail below, this was simply the first in what soon
became a pattern of Respondent interrogating employees
about their union sympathies, soliciting grievances from em-
ployees, and promising to remedy these grievances in order
to dissuade employees from continuing such activities. I find
that when a discussion ensued concerning the fact that em-
ployees wanted better benefits, Burgoon stated he would look
into a 401(k) plan for employees and would erect a tent for
smokers. Similarly, when Burgoon offered one employee a
brake shoe in lieu of a raise and the employee complained
about the flippancy of Burgoon’s remark, Burgoon promised
that he would try to work things out with employees. I find
that Respondent threatened employees with the futility of
having a union represent them, that Respondent systemati-
cally interrogated the entire group about why they wanted a
union, and made various promises to employees to dissuade
them from selecting a union, all in violation of Section
8(a)(1) of the Act.
Burgoon himself admitted trying to keep track of which
employees supported the Union. Similarly, Ford admitted he
heard numerous rumors about who was active on behalf of
the Union, and that he consistently passed that information
on to Burgoon. One of the earliest instances of what soon
became a pattern of interrogation incurred with employee
Manuel Montecon. Montecon testified credibly that in Feb-
ruary 1994, before he had done anything to openly support
the Union, he was approached by team leader Jamie who
told Montecon he had heard about union activity among em-
ployees and wanted Montecon to fill him in. Montecon did
so. Jamie worked under the direction of Supervisor Walker,
who in turned reports to Assistant Production Manager Ford.
Ford is second in command only to Burgoon. Burgoon him-
self identified Montecon as one of the people whose names
he had heard were engaged in union activity.
Similarly, Susan Hudson, who had not told anyone she
supported the Union but had simply handed out union lit-
erature to other employees, was called to a private meeting
by Supervisor Bill McBride. McBride asked Hudson why
employees were so unhappy, why they wanted a union, and
specifically, why she wanted a union. During the conversa-
tion about the way employees were spoken to and treated by
Burgoon and Ford, McBride promised Hudson that he was
‘‘there to help make changes.’’
Similarly, employees Martha Hinson and Rocky Holloway
were approached and interrogated by McBride. As they were
working in the warehouse, McBride approached holding a
union flyer in hand, and then asked angrily, ‘‘I thought this
stuff done stopped. What is this mess still going on?’’
McBride then proceeded to ask Hinson why the Union was
still trying to organize employees. McBride encouraged
Hinson to speak freely and promised their conversation
would be ‘‘off the record.’’ When Hinson told McBride that
Respondent needed to make some changes, and specifically
expressed some safety concerns, McBride proceeded to
promise Hinson that she should immediately be placed on a
safety committee that was being formed.
Hinson and Holloway were also interrogated by Supervisor
Steve Keegan and team leader Belinda Dailey in Keegan’s
office. Keegan told Henson and Holloway that he wanted to
know what made them happy and what made them unhappy
concerning their jobs and working conditions. Keegan said
he wanted to know how he could make their jobs better.
Hinson’s credible testimony stands totally unrebutted that she
then told Keegan and Dailey various problems which had
caused employees to want a union.
Employees Merri Rowe and Haywood Steel were interro-
gated by Supervisors Walker and Brewer. On April 21, just
2 days after Respondent instituted the new discipline system,
and the day after Respondent discharged Martha Hinson,
Brewer and Walker held a meeting with six employees which
they began by first discussing safety and job-related issues.
After discussing these issues, Walker asked Rowe directly
why the Union was trying to organize Respondent. While
Rowe was certainly an active union supporter by that time,
there is no indication that Rowe had made that known to Re-
spondent. In response to Walker’s question, however, Rowe
responded in detail regarding what she considered to be em-
ployee concerns, including holiday pay, vacation schedules,
and the testing program whereby employees could move
from one pay scale to the next. When Rowe explained that
it was hard for a third-shift employee such as herself to take
the pay raise test which was given only during first shift,
Walker responded that as of that day Rowe would be able
to take the test during her own work shift. Haywood Steel
testified credibly in this same meeting, Walker then asked
the group in general what Respondent could do to make their
jobs better. Steel also testified credibly that prior to this
meeting, no one from management had ever solicited his or
other employees’ concerns, nor had they ever promised to
remedy any problems. Rowe and Steel were both discharged
by Respondent a short time after this interrogation.
The Board has long held that whether interrogation is un-
lawful depends on surrounding circumstances, including the
time, place, personnel involved, purpose, and information
sought. Even the employer’s known preference has been rec-
ognized as one consideration. See Sunnyvale Medical Clinic,
277 NLRB 1217 (1985); Rossmore House, 269 NLRB 1176
(1984); Blue Flash Express, 109 NLRB 591 (1954). I find
the totality of circumstances shows each of these instances
of interrogation to be unlawful. From the outset, Respondent
had made it clear that it was absolutely opposed to its em-
ployees becoming organized. Burgoon and Ford were not just
opposed to unionization, but violently opposed, as shown by
the incident in the pickup truck when they served toward,
and only narrowly missed, hitting Landis and Hinson as they
distributed union flyers on the roadway outside of Respond-
ent’s property. None of these instances of interrogation sug-
gest that the circumstances were casual or informal, that they
all occurred at work, and in each instance it was a supervisor
who initiated the conversation. The record here shows that
once Respondent learned of union activity among employees,
it began what eventually became a pattern of interrogating
individual employees who it suspected of supporting the
Union, both about their own individual union sympathies and
those of employees generally. It did more than simply inter-
rogate employees. In almost every instance it also went on
871PERFORMANCE FRICTION CORP.
to solicit grievances from those employees and then prom-
ised to remedy those grievances. Respondent’s assertion that
it ever maintained an active ‘‘open door policy’’ is simply
without merit. The record shows that employees have been
encouraged to make suggestions about improving the product
itself, but there is no evidence such a policy ever existed to
encourage employees to discuss complaints about working
conditions. Indeed, as I have found above, Haywood Steel
testified credibly that prior to the advent of union activity,
no one from management ever solicited employees’ concerns
about working conditions, nor ever promised to remedy any
problems.
Nor can I overlook the fact that shortly after each of these
instances of interrogation, the employees interrogated who
expressed sympathy for the Union were discharged. That fact
is discussed in greater detail below. I find that Respondent
unlawfully interrogated employees concerning their union ac-
tivities and sympathies, and the union activities and sym-
pathies of other employees, in violation of Section 8(a)(1) of
the Act. I also find that in these same conversations Re-
spondent unlawfully solicited grievances from employees and
promised employees various improved benefits and working
conditions in an attempt to dissuade them from supporting
the Union, and Respondent thereby violated Section 8(a)(1)
of the Act.
On April 19, 1994, Respondent instituted a new and strict-
er disciplinary system. This new system took away the dis-
cretion of supervisors to categorize rule infractions as major
or minor. Under the new system, two major violations within
a 90-day period results in demotion of one pay level or, if
demotion is impossible, then dismissal. Further, three major
violations within 6 months also results in demotion or, if not
possible, dismissal. Respondent admitted that part of the pur-
pose for changing the system was to discharge more employ-
ees. As Respondent’s counsel states in his posttrial brief,
‘‘Given the high number of violations required in a relatively
short time before an employee could be terminated [under
the old system], PFC had been unable to eliminate poorly
performing employees from the work force.’’ Respondent’s
desire to discharge more employees is somewhat remarkable
in and of itself in view of the fact that Respondent already
turned over almost its entire work force annually.
The timing of Respondent instituting this new discipline
system is obviously critical, which is why Ford tried so hard
to disavow his earlier sworn affidavit. For all the reasons al-
ready expressed above, however, the evidence shows that the
new discipline system was instituted in April 1994, in re-
sponse to employee union activity. Respondent instituted this
system at a time when it was becoming more and more clear
to Respondent as a result of the answers it was getting to
its unlawful interrogation of employees, that there was in-
deed a significant prounion movement among the employees.
It was no accident that the first people caught in the new
policy’s web were known union supporters. Martha Hinson,
Merri Rowe, Haywood Steel, Susan Hudson, and Manuel
Montecon were all discharged pursuant to the new system
not long after being unlawfully interrogated by Respondent
about their union activities and sentiments. Jerry Kennedy,
another of the three main union activists named by Burgoon,
was also discharged just a day or two after the new system
was instituted.
I find that Respondent violated Section 8(a)(1) and (3) of
the Act by instituting this new disciplinary system both to
discourage union activity and to rid itself of union activists.
Joe’s Plastics, 287 NLRB 210 (1987); Robinson Furniture,
286 NLRB 1076 (1987); International Business Systems, 247
NLRB 678 (1980), enfd. 659 F.2d 1068 (3d Cir. 1981), and
cases cited therein. In Joe’s Plastics, the Board went on to
specifically state that having concluded the new disciplinary
system was unlawful, the corresponding discipline meted out
under that system was also unlawful. I find that such is the
case here as well.
One of the primary arguments advanced by Respondent in
support of its position regarding the institution of the new
disciplinary system, as well as various individual discharges
at issue here, is that Respondent applied the new disciplinary
system equally against union supporters and other employees
in a nondiscriminatory manner. The record is not as clear on
this point as Respondent would have one believe. In fact, a
review of various individual discharges reflects that Re-
spondent went to considerable extremes to ensnare some of
the union activists in this new disciplinary system. For exam-
ple, Martha Hinson was issued a major violation on April 20
when certain parts were mislabeled and shipped to an incor-
rect address although Hinson had nothing whatever to do
with preparing the shipping labels. Also on April 20, Assist-
ant Production Manager Ford issued Hinson a second major
violation by reaching back 2 days prior and issuing Hinson
a warning for not wearing safety glasses in the warehouse.
The record, however, clearly reflects that it was not common
practice to wear safety glasses in the warehouse and that Re-
spondent’s own supervisors did not consider the warehouse
to be covered by the rule.
Similarly, in order to support the discharge of Merri Rowe
on April 27, Respondent issued Rowe a major violation for
an unexcused absence the previous day even though Rowe’s
own supervisor admitted he had given other employees ex-
cused absences for reasons not specified on Respondent’s
forms and even though other employees had unexcused ab-
sences within a week of Rowe’s and were not even issued
discipline. A similar example is shown in the case of Hay-
wood Steel’s discharge. When Steel was given a major viola-
tion on May 5 and discharged, Supervisor Walker refused to
show Steel his mistakes as he had done in the past.
The discharge of Susan Hudson represents an extreme ex-
ample of Respondent reaching out to ensnare a union sup-
porter in its new disciplinary procedure. Respondent touted
Hudson as a superlative employee in its shipping department,
which it states was the very basis for Respondent transferring
Hudson to another position on April 28, the very day when
Burgoon and Ford narrowly missed hitting union organizer
Landis and recently discharged employee Martha Hinson as
they were distributing union literature outside Respondent’s
plant. Although Hudson was inadequately trained, frequently
transferred, and given poor equipment, she nevertheless
earned recognition for exceptional performance in the new
position. Yet, on May 6, when Hudson caught her own work
error and pointed it out to Respondent, Respondent seized on
this as an opportunity to issue Hudson discipline pursuant to
the new system. Other discipline was placed in Hudson’s
personnel file without even being shown to Hudson. Then,
only 3 days later Respondent issued other discipline to Hud-
son for allegedly passing on bad parts even though this ex-
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
emplary employee denied having done so. Respondent then
discharged Hudson quite obviously without even considering
transferring Hudson back to the shipping department where
she had established herself as such an exemplary employee.
Last but not least, is the case of Manuel Montecon.
Montecon is one of few employees who worked for Re-
spondent more than 1 year. From the beginning of the union
campaign in February 1994, Montecon actively solicited
names and addresses of interested employees to pass on to
the Union. Montecon was interrogated by his team leader
about the union campaign, and Burgoon himself identified
Montecon as one of the people whose names he had heard
were engaged in union activity. Not long after being interro-
gated about the union campaign, Montecon was transferred
from the only position he had held while employed by Re-
spondent to a position on the powder coater machine where
it was extremely difficult for him to work due to his short
stature.
On the very first evening at this new position, Montecon
was injured. Though the injury would have allowed
Montecon to perform light duty work, as other employees
had in the past, Respondent refused to allow Montecon such
duties, insisting that Montecon not return to work until he
could work without restriction. Throughout the time
Montecon was off work due to this injury, he faithfully kept
Respondent informed about his condition. Each time he was
given a new written status report by Dr. Heinig, Montecon
immediately took a copy to Respondent. On May 24, when
Montecon was finally released to return to work full duty,
Montecon also took this note to Respondent. Personnel Man-
ager Davis, however, refused to allow Montecon to return to
work because a single box had not been checked by Dr.
Heinig. A few days later, Montecon was instructed by Super-
visor Walker to return to work on May 30, which he did.
Then and only then was Montecon informed that he had al-
ready been terminated on May 7.
Assistant Production Manager Ford testified that Montecon
was terminated on May 7 because he failed to report for
work 3 days in a row. The purported logic of this decision
is that at one time Montecon was scheduled to complete his
convalescence on May 3. Only if one ignores the fact that
Montecon’s convalescence was extended by Dr. Heinig on
May 3, and that Montecon personally delivered Heinig’s
written report to that effect to Respondent’s personnel office
that very day, can one argue that Montecon was expected to
report for work on May 4, 5, and 6, and therefore in a posi-
tion to be discharged on May 7. Ford’s testimony on this
point, as on so many others, is absolutely incredible. If
Montecon was terminated on May 7, why was he not told
this on May 24 when he met with Personnel Manager Tom
Davis and gave Davis Heinig’s release for Montecon to re-
turn to work full duty. Why was Montecon also later told by
Supervisor Walker to return to work on May 30. It is appar-
ent that Ford simply concocted a claim Montecon was termi-
nated on May 7 because he thought that might fit one pos-
sible factual scenario, without having the slightest inkling
that the actions of Respondent’s own personnel manager and
another supervisor would belie this concoction.
Respondent’s assertion that it treated union supporters like
all other employees pursuant to the new disciplinary system
is completely undermined when actual circumstances of var-
ious discharges are scrutinized in detail. What becomes more
and more clear, instead, is that Respondent not only insti-
tuted the new disciplinary system as a response to employee
union activity, but that it then went to great extremes to en-
snare those union activists in Respondent’s web. I find that
by all of these actions, Respondent violated Section 8(a)(1)
and (3) of the Act. Joe’s Plastics, supra.
CONCLUSIONS OF LAW
1. The Respondent, Performance Friction Corporation is,
and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. United Automobile, Aerospace, Agricultural Implement
Workers of America (UAW) is, and has been at all times
material, a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent threatened employees that it would be futile
for them to select the Union as their collective-bargaining
representative; impliedly threatened to reduce wages if em-
ployees selected the Union to represent them; interrogated
employees about their union sympathies and activities, and
the activities and sympathies of fellow employees; solicited
grievances from employees and expressly or impliedly prom-
ised to remedy those grievances in order to discourage union
activities among employees; and Respondent thereby violated
Section 8(a)(1) of the Act.
4. Respondent instituted a new and stricter disciplinary
system in response to employee union activity both to dis-
courage such activity and to rid itself of union activists, and
Respondent thereby violated Section 8(a)(1) and (3) of the
Act.
5. Pursuant to its new and stricter disciplinary system, Re-
spondent discharged union activists Martha Hinson, Merri
Rowe, Haywood Steel, Susan Hudson, Manuel Montecon,
Jerry Kennedy, and other employees, and Respondent there-
by violated Section 8(a)(1) and (3) of the Act.
6. The unfair labor practices which Respondent has been
found to have engaged in, as described above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative actions de-
signed to effectuate the policies of the Act.
Counsel for the General Counsel argues that all discipline
meted out and all discharges pursuant to Respondent’s new
disciplinary system are unlawful. Counsel for the General
Counsel cites Joe’s Plastics, supra. Respondent argues other-
wise, but cites no authority for its position. I agree with
counsel for the General Counsel. The Board specifically stat-
ed in Joe’s Plastics: ‘‘Having concluded that the Respond-
ent’s warning system was unlawful, it follows that the warn-
ings . . . and the discharge . . . being premised on warnings
received under the unlawful system, also violated Section
8(a)(3) and (1).’’
873PERFORMANCE FRICTION CORP.
As to discipline issued to and the discharges of Martha
Hinson, Merri Rowe, Haywood Steel, Susan Hudson, Manuel
Montecon, Jerry Kennedy, Michael Thompson, Kyle Myers,
Bernard Young, and Leslie Teague, all specifically named in
the complaint herein, Respondent has already had the oppor-
tunity and failed to show that it would have taken the same
actions against these individuals even in the absence of union
activity and even in the absence of Respondent’s new and
unlawfully imposed disciplinary system. As to discipline
meted out to other individuals and other discharges pursuant
to the new disciplinary system, however, Respondent shall be
afforded at the compliance stage of this proceeding the op-
portunity to show that it would have taken these same ac-
tions even if Respondent had not instituted the new discipli-
nary system for unlawful reasons but had retained the old
system. The burden of proof on such issues is clearly on Re-
spondent. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
[Recommended Order omitted from publication.]