Plasticrafts, Inc.

National Labor Relations Board - Board Decisions

Jul 6, 1978

236 N.L.R.B. 1391 (N.L.R.B. 1978)

Plasticrafts, Inc. and Donald W. Fox. Case 27-CA-
5509
July 6, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUFSDALE
On March 8, 1978, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a reply brief to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
Respondent has excepted to certain credihility findings made hs the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credhibilit
unless the clear preponderance of all of the releant evidence consinces us
that the resolutions are incorrect. Standard Drv 1all Prodcrts, In,. 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully
examined the record and find no basis for reversing his findings.
In the last paragraph of the section of his Decision entitled "Conicu-
sions," the Administrative Law Judge stated that employee "McGovern sas
sacrificed to lend an aura of legitimacy" to the disciplinary actions laken
against Fox and Williams. McGovern, unlike Fox and Williams, had re-
ceived two prior verbal warnings concerning his use of company equipment
during working time for personal projects and therefore was not in exacils
the same position as these two employees As to whether Mc(iovern's di,-
charge was unlawful, the matter was neither alleged nor fully litigated
Therefore, we are precluded from finding such a siolation Accordingls we
do not adopt the Administrative I aw Judge's statement suggesting that Re-
spondent acted unlawfully in suspending Mc(iovern
Respondent called an employee meeting on August 5. 1977. to announce
the disciplinary measures taken against employees Fox and Williams and to
warn other employees that the Company intended to enforce rules striclIs
with respect to. among other things, breaktime, lunchtime. and use of com-
pany property during working titne Therefore, the Administratl\e I a.
Judge ordered Respondent to call an employee meeting requiring 1 hoia;s
Cooper, Respondent's president and general manager. to read to the em-
ployees the notice attached to his Declsion While we agree that In light ,f
this conduct an additional temedy is necessary to ensure that eers emploG
ce is aware of the findings herein, we conclude that this objective is fulls
realized by requiring Respondent to mail to all its employees copies , o the
attached notice. We shall modify the Order accordingly. We note Ihat Ihe
August 5 meeting was neither alleged nor found to he a s clation oF the .at.
and the General Counsel did not except to the Adminiisratiie La, Judge',
findings.
PLASTICRAFTS. INC.
below, and hereby orders that the Respondent. P11tst
icrafts. Inc., Denver, Colorado, its offtcer,. :tienttts
successors, and assigns, shall take the iaction set fsorth
in the said recommended Order. as sso modified:
I. Delete paragraph 2(c) and footnote ') rteleiter
the subsequent paragraphs accordingl,. and renum-
ber footnote 10 as footnote 9.
2. Insert the following sentence at the end of neNw
paragraph 2(d):
"In addition. Respondent shall mail one signed
copy of the attached notice to each of its eniploiyees
upon receipt thereof from the Regional Director for
Region 27."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPEN DIX
Norilc F I'() [EI1Pi(c t-i-s
PosIFI) BY ORI)I R OF THE
NliiONAI. LABOR RilLATIONS BOR)RD
An Agency of the United States (Government
The National Labor Relations Act gives all eni-
ployees the following rights:
To organize themselves
To form. join, or support unions
To bargain as a group through a representa-
tive theN choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activit' ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become
union members.
WrE WI L NO)I suspend, warn, or othelwsie pec
nalize eniployees for filing unfair laIbor practice
charges with the National I abor Relatltis
Board, or for testifying in NLRB proceetdings.
Wti: wVl No1 in any other manner interfere
with. restrain, or coerce employees in the exer-
cise of the rights guaranteed them h\ Section 7
of the Act.
Wi WI Il make Donald Fos. wxlhole for .1n loss
of earnings and benefits suffered bh ireason of
our unlawful suspension of hilm on August '
1977. with interest.
W' \v ii expunge froni the personnel records
of Donalit Fo,,. Lind l)ale Williams anrv referencie
to the '!lakfuni actilns takien against te!ie (otl
August 5, 1977, and inform them nir writing thit:
this has been done.
P \xsI( R\ is ]l-,(
236 NLRB No. 187
1391
DEC ISIONS OF NATIONAL LABOR RELATIONS BOARD
D)EC'ISION
SIAIFNIN I ()OI IIIE CASI
RI(.ARI) J Boy( I. Administrative l.aw Judge: This case
was heard before me in Denver, Colorado, on January 24.
1978. The charge was filed August 10. 1977, by Donald
Fox, acting in his individual capacity. The complaint is-
sued September 30. alleging that Plasticrafts, Inc. (Respon-
dent), had violated Section 8(a)( ) and (4) of the National
Labor Relations Act (Actl.
I he parties were permitted during the hearing to intro-
duce relevant evidence, examine and cross-examine wit-
nesses, and argue orally. Posttrial briefs were filed for the
General ( ounsel and for Respondent.
I J1 RIi)I( I ION
Respondent is a Colorado corporation engaged in I)en-
ver in the manufacture and sale of plastic products. It an-
nuall) causes goods and materials of a value exceeding
$50,000 to be shipped into Colorado from directly outside
the State.
Respondent is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
11 ISSi 1s
The complaint alleges that Respondent violated Section
8(a)(1) and (4) on August 5. 1977, by suspending Donald
Fox for I week without pay "because he filed charges and
gave testimony under the Act," and by giving a written
reprimand to Dale Williams "because he gave testimony
under the Act."
I he answer denies an's wrongdoing.
111 II II A (;I I) I Ni AIR I 4.BOR I'RKA( I( S
A. fiacts
I)onald Fox has been employed by Respondent as a
toolniaker-modi(maker since November 1975. Dale Wil-
liams has been with Respondent, as a tooiroom mainte-
nance man, since April 1975. Williams was Fox's nonsu-
pervisory leadman at relevant times.
On March 3, 1977. F:ox filed an untair labor practice
charge against Respondent protesting the withholding of
wage increases during the peindencs of an NLRB election
involving certain of Respondent's employees. The General
Counsel issued a complaint based on the charge on Ma' 3.
1977, and a hearing ensued before Administrative law
Judge James T. Barker on August 4. Both Fox and Wil-
liams testified in support of the complaint on the morning
of \ugust 4, 2
t I-he reprcse'll eiioi c;ilec wsi, do.ckeIed .,s 27 R( 5411 I the lpetiti was
filed on D)eC.enbel 8, 197. lie : Ic ll won as held on, I -bruarv 3. 1977. and
resulted in the certificatiion f t ,imted RibuhhE ( rk. I moleunn andi Plat,
V orkel, a. the erpIoSaccs representt it' on I bchruars ! I
On the afternoon of August 5-i.e., the day after the
hearing- Fox and Williams were summoned to the office
of Paul Troute, Respondent's production superintendent.
Troute, asserting that Fox had used a lathe for personal
purposes without authorization and on "company time,"
suspended him for a week without pay; and, stating that
Williams, as his leadman, apparently had condoned "this
activity," gave him a "stern warning" that recurrence
"might demand" that he also be suspended.
The incident to which Troute referred happened the
morning of August 3. Fox arrived at the plant early to
work on a stero speaker stand intended for the personal use
of a fellow employee, Michael McGovern. The plan was to
fashion two plexiglass rods, each 23 inches long and 3
inches in diameter, on a lathe. Fox expected the project to
take about two hours, and anticipated working on it until
starting time, during the lunch hour, and after work. Mc-
Govern had supplied him with the materials.
The employees were "on the clock" as of 7:30, but were
permitted to clock in as late as 7:37 without penalty. Some-
time between 7:30 and 7:35. Troute entered the area where
Fox was working on the McGovern project. Fox immedi-
ately turned off the lathe and began doing scheduled pro-
duction work. Williams, who had authorized Fox's use of
the lathe for the McGovern project, but not on company
time, was perhaps 10 to 15 feet from Fox. Troute passed
through without comment.
I route, realizing that Fox had been engaged in a person-
al project, promptly reported the matter to Thomas Coop-
er, Respondent's president and general manager. Cooper
testified that Troute characterized what he had seen as
"apparently a serious problem." Cooper wondered aloud
to Troute whether the materials Fox was using had been
stolen from the Company, and directed Troute to "write it
up." Troute thereupon prepared this "speed letter" for
Cooper and Larry Johnson, Respondent's personnel man-
ager:
When I came in this morning, at 7:35, Don [FoxJ was
turning a piece of plex about 3" X 3" and another
piece was nearby. I don't know who the material be-
longs to. It definitely was not a job that I had given
him. His timecard was punched in at 7:28. When he
saw me he went to his scheduled work. He also had
not asked for permission to use any machinery.3 Dale
Williams was here, but he didn't say or do anything
about it.
Still the same morning, according to Cooper, he "started
a discreet inquiry through various of the supervisors and
leadmen as far as whose materials this was and what was
going on." Cooper's testimony continued:
I spent quite a bit of time at it . . . because I regarded
it as a serious thing, and I personally investigated it,
and I also asked various people in positions of respon-
tFox's charee sas, docketed as Case 27-CA-5273 Administrative Law
Judge Barker', Declsion, finding that Respondent had violated the Act sub-
stanialtl as alleged, issued on September 29. 1977 The Board affirmed it in
la.rf part. Plaltitrlia. /Ilt.., 234 Nl.RB 762 (1978).
As stated above, Dale Williams. who was empowered to do so, had
aluthorized F o s' lse of the lalhe for a personal purpose.
1392
PLASTICRAFTS. IN('.
sibility to discreetly investigate this because I didn't
want to make a false accusation dishonestly without
being able to prove it, and I was very concerned about
this.
Cooper elaborated that he personally examined the lathe
in question, seeing the possibly stolen materials still there.
and spoke with McGovern's leadman. Doug Goodrich.
Those in "positions of responsibility" who were brought
into the investigation, according to Cooper, were Larr,
Johnson, a salesman by the name of Art Baylor, and the
inside sales manager. Jerry Albert, all of whom reputedly
were asked to search various records to determine if the
materials had been paid for.4 On the afternoon of August
3, Cooper testified. he met with Johnson, Troute, and
Goodrich, and it was concluded that "apparently this was
a case of theft" by McGovern, with Fox "in collusion."
That evening, after the employees had left the plant,
Cooper took pictures of the lathe and of McGovern's desk.
where the materials still sat, "because I felt at that time we
still had a possible crime of theft, and I wanted to have
some documentation." Cooper placed the value of the ma-
terials at between $20 and $30.
As mentioned, the hearing before Administrative Law
Judge Barker, based on ther charge Fox had filed against
Respondent, took place August 4, with Fox and Williams
testifying during the morning in support of the complaint.
Also on August 4, Cooper learned that McGovern had
paid in full for the materials,5 which in Cooper's view "mi-
tigated the circumstances where I couldn't honestly feel
that he had stolen this material." Until then, according to
Cooper. he regarded McGovern and Fox to have been en-
gaged in "a very illegal act" calling for discharge.
Mitigation or no, it was decided on the afternoon of
August 4, following deliberatioiins at lunch and in the hall-
way during the hearing recesses liiti Fox and Williams
should be disciplined. Party to the deliberations, in addi-
tion to Cooper, were Johnson and l route and those repre-
senting Respondent in the hearing. All but Troute initially
urged a 30-day suspension for Fox and a 1-week suspen-
sion for Williams. Troute, contending that the offenses
were not "serious enough" to warrant such measures and
voicing fear that they "would be related to the current
court session." espoused the lesser sanctions which were
imposed.
Fox and Williams knew nothing of their plight until
called before Troute the afternoon of August 5. Troute
read to them from a prepared statement, which described
their offenses this way:
The event to which I am referring happened like this:
I came in to work Wednesday morning, a little late as
usual, at 7:35 when I noticed Don Fox in the Machine
Shop turning a piece of Plexiglas sheet material into a
round rod shape. Two company rules had been broken:
I1, I had not authorized the use of the lathe.
' Neither Johnson. Balor, Albert. nor Goottdrich lestified
McGovern credihlh testified of making a partial pasment on Auullsl 2
or 3. and final payment on August 4. which as. pasda).
'2, 7:35 is company time.
In addition to this the leadman of the department,
Dale Williams, apparently condoning this activity,
was not doing anything about it. This inaction I con-
sider to be a breach of contract. Dale's function as a
leadman is. partly, to see that time is effectively used
for production.
I route then read this passage:
I am sure that vou consider this action unfair when
considering how lenient the company, or myself, has
been on similar things in the past. But, there always
comes a time , hen someone has to put their foot
down.
After I'route had finished the statement, Williams in-
formed him that he. Williams. had authorized Fox' use of
the lathe for the McGovern project, and reminded 1Troute
that he possessed that authority. Troute agreed that Wil-
liams did have such authority, and withdrew "the charge of
not obtaining permission to use lathe." Troute also told
Williams, after Fox had left, that the previous day's hear-
ing "didn't have an? hearing on" their being disciplined.
Shortly after meeting with Fox and WVilliams, Troute met
with the production employees in general to announce the
action just taken and to read a statement similar to that
read to Fox and Williams." I hat statement included this:
After presenting this information to Tom Cooper, re-
garding this incident and general knowledge of similar
things in the past, it was decided that disciplinary ac-
tion should be taken with both Dale and Don and that
more strict enforcement of rules would be carried out
in the future things such as amount of time at break
periods. As sou knos, break periods are 10 minutes.
This means 10 minutes awas from your work station,
not ten minutes after you get to where you want to
rest. Another item is lunch break. I unch break is 30
minutes again. 30 minutes away from your work sta-
tion, not after ,,ou get to the lunch area. There Is no
allowance of ten or even five minutes for hand wash-
ing. I'm not saying that I agree or disagree with this.
but the company has nothing in its rules that permits
wash up time or travel time.
I guess. in a swas, I owe most of you an apology in
advance for having to subject you to action like this.
Even though you have all been made aware of these
rules at one timne or another. I accept much of the
responsibilits for having allowed the situation to get
out of hand. But rules are rules, and you can expect a
mo)re strict enforcement in the future.
The statement also contained this:
I'm sorry it has to happen at about the same time
when we were in court on another matter. but one has
no effect on the other.
For reasons unexplained on the record, Troute made no
mention, either in the meeting with Fox and Williams or in
In tIlic !nlcl *f eqllht ." i (oo pcl bpultI he held meet n, of Re-
spondcnt'e n i lcr cmpl],i' 1 1 il ll '' %ii i ;I nn!,unt-l. he a.tnlll at.nMt
I !, itd \ ,
1
,1 ,
1393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employee meeting that followed, that McGovern also
had received a I-week suspension that day, evidently for
doing personal work on company time. McGovern did not
testify in the August 4 hearing.
Cooper's and Troute's explanations differ why Fox and
Williams were not disciplined on August 3. Cooper testi-
fied that he "wanted to investigate the whole incident more
thoroughly"; Troute. of being "concerned about the inci-
dent and the proximity of the forthcoming court session,"
and that "people may just relate the two of them." For all
its purported thoroughness, the investigation did not in-
clude interviews of Fox and Williams, nor of McGovern.
Cooper's professed reason for not talking to Fox and Wil-
liams was: "I didn't think I would get anywhere in asking
questions about this."
McGovern's leadman, Goodrich, unlike Williams. re-
ceived no discipline. Goodrich had exonerated himself dur-
ing the investigation. according to Cooper, by saying that
he twice had warned McGovern "about doing work on this
material . .. on company time." Cooper testified that Wil-
liams was not given a similar chance to exonerate himself
because Troute had reported that Williams "was right
there when this was going on, and he didn't stop Don [Fox]
from doing it." Goodrich did not testify in the August 4
hearing.
Cooper testified that, until McGovern paid for the mate-
rials, he regarded the incident in question as "quite simi-
lar" to one in 1974 or 1975 leading to the discharge of two
employees. As he described that incident, two employees
had been using company materials and time to make ter-
rariurns, which they then sold. Cooper's investigation on
that occasion including talking to the accused employees
"to make certain they were guilty of stealing material: I
wanted to give them every chance." Cooper also talked to
their leadman, who received no discipline out of the matter
because. according to Cooper. it was he who reported the
situation and he "had not known about it until he reported
it."
Except for the two discharges and the present suspen-
sions of Fox and Mc(iovern. Respondent has never dis-
charged or suspended anyone for using company equip-
ment for personal use on company time. Cooper explained:
"'I ]here was no other flagrant abuses as flagrant as that
that I know that reached me whatsoever." Cooper testified
that the suspensions of Fox and McGovern "really hurt the
company a great deal more than it would hurt them" be-
cause "we are very shorthanded" and "it put us farther
behind as far as our work goes."
I-ox was permitted to complete the McGovern project,
using company equipment, during his suspension.
B. (' .nclusions
It is concluded that Respondent's August 5 actions
against Fox and Williams violated Section 8(a)(4) and (1)
as alleged.
T his conclusion is supported by a number of considera-
tions:
(a) 7Timing. Although their supposed misconduct oc-
curred early on August 3. the decision to discipline was not
reached until August 4, after they had testified in support
of the complaint against Respondent.
(b) Suggestion by denial. McGovern, who did not testify
August 4, also was suspended on August 5. Yet only the
actions against Fox and Williams were mentioned by
Troute in the employee meeting on August 5. That, cou-
pled with Troute's pointed declaration that the hearing had
had "no effect" on those actions, suggests that, by the tech-
nique of "suggestion by denial," an object lesson was
being made of Fox and Williams for having testified. See
V. E. Anderson Manufacturing Company, 184 NLRB 459,
466 (1970).
(c) Disparate treatment. Respondent could cite no con-
vincing precedent for discipline in these circumstances.
Troute, in his prepared statement to Fox and Williams on
August 5, even volunteered that they might well "consider
this action unfair when considering how lenient the compa-
ny, or myself, has been on similar things in the past."
(d) Contrived nature of the "offenses." Despite the sky-is-
falling-down rhetoric of Cooper and Troute, the alleged
misconduct was inconsequential. Indeed, since Fox
stopped working on the personal project well within the
7-minute grace period for clocking in, it cannot fairly be
said that there were any cognizable offenses by him or Wil-
liams. The notion of theft originally propounded by
Cooper was equally hollow, even iin its inception, inasmuch
as the materials were of small value and partial payment
for them had been made on or before August 3; and since
both Fox and McGovern, by making no effort at conceal-
ment, revealed to anyone not vindictively inclined that
theirs was not a larcenous scheme.
(e) "Stacked" nature of the investigation. Although avow-
ing a concern for investigative thoroughness, Cooper assid-
uously avoided talking to the would-be offenders. This in-
dicates that he was more intent upon building a case
against them than in - wuaine fact-finding; and that, while
perhaps misspeaking. he uttered the literal truth when testi-
fying that he "didn't want to make a false accusation dis-
honestly without being able to prove it."
Cooper's failure to interview Fox and Williams, for the
stated reason that he didn't think I could get anywhere in
asking questions about this," is particularly transparent
when contrasted with his investigation of the terrarium
matter, which he equated to the present situation in seem-
ing gravity. On that occasion, it will be recalled, he was at
pains to hear the employee-suspects' side of the story "to
make certain they were guilty of stealing; I wanted to give
them every chance." Additionally revealing of the
investigation's vindictive thrust was Cooper's talking to
McGovern's leadman, Goodrich, who was not to testify on
August 4, but not to Fox's leadman, Williams.
(f) Respondent's exaggerated rhetoric. The Orwellian
chasm between the rhetoric of Cooper and Troute and the
realities of the situation demonstrated, once more, a puni-
tive predisposition toward Fox and Williams.
Respondent can muster only one countervailing consid-
eration of substance-that McGovern, who did not testify
on August 4, also received a I-week suspension on August
5. Given the manifold indicia of improper motivation as
concerns Fox and Williams, however, it must be assumed
on the present record that McGovern was sacrificed to lead
an aura of legitimacy to the actions against them.
1394
PLASTICRAFTS, INC.
CONCLUSIONS OF LAW
1. By suspending Donald Fox because he filed a charge
and gave testimony under the Act, and by giving Dale Wil-
liams a "stern warning" because he gave testimony under
the Act, as found herein, Respondent in each instance vio-
lated Section 8(a)(4) and (1) of the Act.
2. These unfair labor practices affect commerce within
the Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue this recommended:
ORDER7
Respondent Plasticfafts, Inc., Denver, Colorado, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Suspending, warning, or otherwise penalizing em-
ployees for filing unfair labor practice charges with the
National Labor Relations Board, or for testifying in NLRB
proceedings.
(b) In any other manner interfering with, restraining. or
coercing employees in the exercise of the rights guaran-
teed them under the Act.
2. Take the following affirmative action:
(a) Make Donald Fox whole for any loss of earnings
7All outstanding motions inconsistent with this recommended f)lder
hereby are denied. In the event no exceptions are filed as provided ho Sec
102.46 of the Rules and Regulations of the National L.abor Relaiions Bo.ard
the findings, conclusions. and recommended Order herein shall. as pros ided
in Sec. 102.48 of the Rules and Regulations. he adopted bs the Board and
become its findings. conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
and benefits suffered by reason of Respondent's unlawful
suspension of him on August 5, 1977.8
(b) Expunge from the personnel records of Donald Fox
and Dale Williams any reference to the unlawful actions
taken against them on August 5, 1977, and inform them in
writing that this has been done.
(c) Call an all-employee meeting for the purpose of hav-
ing the attached notice read aloud by Thomas Cooper. Re-
spondent's president and general manager. or bN Paul
Troute, its production superintendent.9
(d) Post at its plant in Denver. Colorado, copies of the
attached notice marked "Appendix." I0 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 27, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by' it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
B.ackpas and interest thereon to he comnputed in the manner prescrihed
in I 1 ' li... f.iorh ( imprlon. 90 NI RH 289 (19t50) and 7oeri/,l S,,tool e.r
priiion, 231 N.RB 6h
5
I 11977! See, eneralls. Iis Plunihing & Itealinr (n,
13R NLRB 71 11962).
that Respondent he requilied io do this is essential inasmuch as the
unlaful actions agalns IFox and Williams were announced tow the emplo5 -
ees ill this manner
i4 In the eent that this ()rder is enfor.ed hb a Judgment of a U nited
States Court of Appeals. the sords in the nt oice reading "Posted hb Order
ilf the Ntlllal i.abor Relatons Board"l hal read "Posted Puruant to a
Judgment of the ti nited Stlates ( iort .of Appeals Enforcing an Order of thc
Natiinal l abor Rel.atins Boi.d.-
1395