Pottsville Bleaching And Dyeing Co.

National Labor Relations Board - Board Decisions

Mar 27, 1987

283 N.L.R.B. 359 (N.L.R.B. 1987)

POTTSVILLE BLEACHING CO. 359
Pottsville Bleaching and Dyeing Company and
Teamsters Union Local No. 115, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 4-CA-15420
27 March 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 20 May' 1986 Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed cross-exceptions and a
supporting brief in reply' to the Respondent's ex-
ceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided` to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended
Order.;z
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discharging employee Downey.
The facts are not in dispute. Downey had been
an active supporter of labor organizations at the
Respondent's Port Carbon„ Pennsylvania facility
since 1979 when he was the steward for the inde-
pendent union that then represented the Respond-
ent's production and maintenance employees. He
was an observer in ,a Board-conducted election in
1980 when the Textile Workers attempted to orga-
nize those employees. He solicited authorization
cards and distributed pamphlets for the Teamsters
and was an observer at elections held in March and
December 1982. He "handed out cards and pam-
phlets and talked with fellow employees in the
Teamsters campaign in 1984 ' and served as an alter-
nate observer ' in an election, that year . He was
again active in enlisting support for the Teamsters
in late 1984 and early 19851. Downey also was a
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility, resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Ay
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and and no basis for reversing
the findings.
2 The General Counsel excepts to the judge's failure to include a visi-
tatorial clause in the recommended Order A visitatorial clause authorizes
the Board, for compliance purposes, to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing the Board 's Order.
Under the circumstances of this case , we find it unnecessary to include
such a clause. Accordingly, we deny the General Counsel's request
witness in two prior unfair labor practice proceed-
ings involving the Respondent.3
Downey was on disability leave when a Team-
sters election was held in March 1985, but voted in
the election. As Downey stopped on his way out
of the plant to talk to another employee, Plant
Manager Horton told Downey to "get the hell out
of the plant," but permitted another employee on
disability leave to speak to other employees. At an
employee meeting held in October 1984 Horton
stated he could not afford any union problems,
threatened to lock the Respondent's doors, and
turned to Downey, saying: "Do you understand
that, Ron?" Furthermore, Downey himself ac-
knowleged that he was during this time, the "lead-
ing union activist"' at the facility. Thus, the judge
found sufficient evidence to impute to the Re-
spondent knowledge of Downey's union -support
for at-least 5'years.-
During the week ending 8 January 1985 Downey
produced "40% bad work" on, his dye machines,
accounting for five out of nine lots that had to be
reworked., On 14 January 1985 Horton issued
Downey a "final warning," placing him on a 1-year
probation and providing, in relevant part:
Should any action on your part during this
period of probation cause the issuance of a
-written warning for any reason, you shall be
terminated from Pottsville Bleach and Dye im-
mediately and irrevocably. Or, if, during the
term of your probation and as a result of Com-
pany analysis, ' your job performance should
produce an excess of seven percent (7%)
rework in any one (1) week ' period, ,you shall
be terminated immediately and irrevocably.
Prior to that time, Downey had received only one
warning, acknowledged by the Respondent to be
ambiguously worded. It was issued on 19 June
1984 for excessive absenteeism.
An unfair labor practice charge regarding, the 14
January warning was filed by the Teamsters on
Downey's behalf, but was dismissed by the Acting
Regional Director on 29 March 1985. Testimony
regarding the warning was, however, adduced at
the, hearing in the ' instant case. For instance, em-
ployee Frederick Powers credibly testified that
during the winter of 1985 he discovered a black,
looseleaf notebook bearing on its cover the name
"Richard Flagg," who was then the Port Carbon
facility superintendent. The notebook contained the
following:
Q. Could it have been caused by bad water?
3 275 NLRB 1236 (1985) and 277 NLRB 988 (1985).
283 NLRB No. 55
360 DECISIONS OF THE NATIONAL LABOR-RELATIONS BOARD
A. Yes.
Q. Can we prove that the bad coppering
was Downey's fault?
A. Depending on the investigator's knowl-
edge.
Q. Can I fake my way through this?
A. Yes.
Because the General Counsel was not contesting
the legitimacy of the dismissal of the earlier
charge, the judge stated that he was bound to find
that the warnings would have been issued in any
event. He found, however, that this newly discov-
ered evidence suggested that the Respondent not
only purposefully attempted to blame Downey for
the bad dye lots, but also schemed to prove that
the bad dye lots resulted from Downey's error
rather than from "bad water." Our dissenting col-
league conveniently ignores this highly probative
evidence regarding the Respondent's motive in
placing Downey on probation.
On 2 October 1985 Downey was discharged as-
sertedly for an error he made on 26 September
1985 when he opened a roll of cloth on a rack with
26 other rolls and ordered all, 27 to be dyed the
same color (blue). Unknown to Downey, the other
26 rolls were to have been dyed a different color
(red). As the dissent points out, and the judge ad-
mitted, Downey's error resulted from his failure to
follow work instructions. What the dissent does not
point out, however, is that the work instructions
that required Downey to check each and every roll
of cloth were given to him only a week before this
incident. As found by the judge, Downey's legiti-
mate understanding of opening procedure, based on
training and past practice, was that he was respon-
sible for matching only one roll with an order.
Our dissenting colleague fails to mention other
relevant facts. Although the Respondent may have
discharged Downey "according to the terms of his
probation," Downey's discharge was not consistent
with the Respondent's, usual disciplinary system. As
found by the, judge, the Respondent's official prac-
tice was to issue an oral warning (written and
placed in the employee's file), then a written warn-
ing, then a final warning, followed by discharge for
any further' violation. The judge noted that the
system was not strictly followed: one employee re-
ceived six notations, for bad work, followed, by five
warnings, all but one' of which were for bad work,
before he was discharged. Prior to Downey's. dis-
charge, however, Downey had received only a
warning for excessive absenteeism and a warning
for his alleged dyeing mistakes in January 1985.
Thus, the judge found, and we agree, that there is
evidence of disparate treatment in the leniency ac-
corded to other employees, as compared to the
harshness of the discipline meted out to Downey.
There is further evidence of disparate treatment.
The dissent fails to acknowledge that Downey's
error, characterized by the dissent as "major,"
proved to be correctable with no economic loss to
the Respondent, unlike other employee errors made
around the same - time. Downey's mistake was
caught in time for the Respondent to switch the
order numbers, use the lot mistakenly dyed blue,
and have another lot dyed red for the same cus-
tomer. Thus, no rework of Downey's job was re-
quired, and the error did not cost the Respondent
any money. In this respect, Downey's error con-
trasted with the two other incidents of employee
mistakes made in dyeing and finishing fabric in the
summer of 1985 mentioned in the dissent, which
not only necessitated reworking at the Respond-
ent's expense but involved seven and eight times as
much material as Downey was accused of incor-
rectly designating. In both instances employees
were "counselled" (with no writing memorializing
an oral warning) rather than disciplined. Regarding
the more serious incident of the two, the judge
found further evidence of disparate treatment in
the fact that employees as culpable as Downey
were identified but not disciplined. The dissent's re-
liance on the fact that those employees were not on
probation, like Downey, is inaccurate and mislead-
ing inasmuch as it fails to confront the fundamental
issue in disparate treatment cases such as this: why
employees responsible for a mistake ' far more Sig-'
nificant than the one Downey made were,not'disci-
plined at all by the Respondent.
In finding evidence of the Respondent's pretex-
tual firing of Downey, 'the judge also noted state-
ments made by Horton at the time'of Downey's
discharge: that Downey, was a good worker and
that it was a shame he had to be terminated, that
Horton would give Downey a good reference, and
that "it was just too bad that [Downey] didn't obey
the philosophies and policies of the company." The
judge found that Horton's praise of Downey as, a
good worker and promise to give him a good ref-
erence was inconsistent with the Respondent's ' de-
fense that Downey was fired as a result of bad
work. We agree with the judge's finding that Nor-
ton's praise of Downey's work is inconsistent with
the, Respondent's defense based on Downey's work
performance. In so doing, however, we find it un-
necessary to rely on Horton's reference to compa-
ny "philosophies, and policies," a phrase that we
find in this context to be ambiguous at best.
We note, finally, that the General Counsel did
not rely solely on prior cases involving this Re-
spondent in adducing evidence of ;antiunion animus.
POTTSVILLE BLEACHING CO. 361
As found by the judge, there is evidence of antiun-
ion animus in Horton's singling out Downey as
part of his extemporaneous statements in opposition
to unionization; the newly discovered evidence in-
dicating- that the Respondent improperly "framed"
Downey for poor dyeing that was not his fault;
and the punishment meted out to Downey, admit-
tedly administered in accordance with the terms of
his probation , but indicative of disparate treatment
when employees involved in a more serious error
received no punishment at all. The clear prepon-
derance of the evidence in this case establishes that
the Respondent was looking - to seize on an oppor-
tunity it had not had before to discharge , Downey
because he was a union partisan.
We find, therefore , that the General Counsel has
met the burden under Wright Line4 of showing that
a motivating factor for the Respondent's discharge
of Downey was Downey 's union activity . Further,
the Respondent has not shown that it would have
discharged Downey even in the absence of his
union activity . Thus, we adopt the judge 's finding
that Downey's error was utilized by the- Respond-
ent as a pretext for his discharge ; that Downey
would have been treated similarly to the other em-
ployees responsible for processing - mistakes if he
had not been an active Teamsters supporter; and
that the real reason behind his discharge was his
union activity.
Accordingly, on the basis of all the foregoing,
we adopt the judge's finding that the Respondent
discharged Downey in violation of Section 8(a)(3)
and (1) of the Act.
ORDER
The, National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Pottsville
Bleaching and Dyeing Company, Port Carbon,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues I would reverse the
judge's finding that the, Respondent's discharge of
Ronald Downey violated Section 8 (a)(3) and (1)
and would dismiss the' complaint.
The Respondent is engaged in the bleaching and
dyeing of tubular fabrics and has been the object of
several union organizing drives over the years.
Since at least 1979 the, Respondent has been aware
that Ronald Downey was an active union support-
er.
4 251 NLLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir. 1981), cert
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Manage-
ment Corp , 462 U.S 393 (1983).
On 14 January 1985 Respondent put Downey on
1-year probation for producing "40% bad work"
on his dye machines from 2-8 January 1985. The
conditions of the probation, as stated in Downey's
warning letter, were as follows:
Should any action on your part during this
period of probation cause the issuance of a
written warning for any reason , you shall be
terminated from Pottsville Bleach and Dye im-
mediately and irrevocably. Or, if, during the
term of your probation and as a result of Com-
pany analysis , your job performance should
produce an excess of seven percent (7%)
rework in any one (1) week period, you shall
be terminated immediately and irrevocably.
Since you admitted during the January 11
meeting that you totally understand circum-
stances surrounding conditions of employment
for an employee on a Final Warning and pro-
bationary period, you shall be held accounta-
ble during ' this entire period.
Downey's probation was the subject of an unfair
labor practice charge filed by the Union but dis-
missed by the Acting Regional Director 29 March
1985 and is not contested by the General Counsel
here.
On 26 September 1985 Downey made an error
that resulted - in 26 rolls of cloth being dyed the
wrong color and, according to the terms of his
probation, was discharged . The judge found the
error was caused by Downey's admitted failure to
follow work instructions, and "without more, there
appears to be cause for Respondent 's discharge of
him, notwithstanding his union activities." The
judge went on to find, however, that at the time of
the discharge Plant Manager Horton praised
Downey as a good worker, said it was a shame he'
had to be terminated , that he would get a good ref-
erence, and that "it was just too bad that
[Downey] didn't-obey the philosophies and policies
of the company."
The judge found this praise indicated that Dow-
ney's error "may have been a mere pretext for his
discharge" (emphasis added), and noted that the
Respondent's treatment of Downey was much
harsher than that of other employees involved in
errors requiring the reworking of significant orders.
Although the judge mentioned the fact that
Downey, unlike the other employees , was on pro-
bation with notice that any further problem would
subject him to discharge, he nevertheless cotlclud-
ed, that the Respondent would not have disciplined
him in the absence of his union activities, citing
Horton's statement to Downey regarding his fail-
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ure to follow the Respondent 's "philosophies -and
policies."
It is axiomatic that an employer 's discharge of an
employee violates Section 8(a)(3) and (1) only
when the discharge is motivated by the employee's
protected union activities .' Pursuant to Section
10(c) of the Act , the General Counsel has the
burden of proving that the discharge was unlawful-
ly motivated. Under the -procedural framework set
forth by the Board in Wright Line,2 the General
Counsel, must first establish that an employee's pro-
tected activity was a motivating factor in the em-
ployer's decision to discharge him.
In my view, the- General Counsel has failed to
meet that burden . Thus, the only evidence of union
animus set forth by the General Counsel arose out
of prior cases involving this employer, and an
unfair labor practice charge that was dismissed
once by the Region and again on appeal to the
office of the General Counsel. The General Coun-
sel attempted to introduce "newly discovered" evi-
dence as background material relating to the
charge but concedes that the lawfulness of the pro-
bation is not at issue.3
It is undisputed that the Respondent was aware
of Downey's union activities for at least 6 years
prior to his discharge. Thus, Downey was an open
and active union - supporter who served as steward
in 1979-1980; observed in Board-conducted elec-
tions in 1980 and 1982, solicited authorization cards
in 1982, and was active in Teamsters campaigns in
1984 and- 1985. During this period of time, when
Downey-was, by his own admission , the "leading
union activist" at the facility , ` the Respondent had
ample opportunity to discharge him. In June 1984
he was put on probation for excessive absenteeism,
a warning that was never alleged to be pretextual.
While on probation he committed an error necessi-
tating the rework of nine lots but, rather than dis-
charging him, the , Respondent issued him a new
final warning . This "was the probation that became
the subject of the aforesaid unfair labor practice
charge. ' The Respondent testified without contra-
diction that in , January 1985 Downey had the
worst redye record of any employee in the
memory of the plant management. Clearly, if the
NLRB v. Transportation Management Corp., 462 U.S. 393, 394 (1983).
z 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Or.
1981), approved by the Supreme Court in Transportation Management,
supra
3 Although I do not agree that union animus was a factor in the Re-
spondent's decision to discharge Downey, it is well established that
absent a showing of unlawful motivation, the General Counsel's burden
will not be met solely by proof of union animus. Thus, an employer is not
barred from, disciplinin g a proumon loyee for just cause simply be-
cause the employer has exhibited some
emp
union animus. See NLRB v. A &
T Mfg. Co., 738 F.2d 148, 151-152 (5th Cit. 1984). '
Respondent's desired end was to rid itself of
Downey it could easily have done, so at that time.
Yet the majority gives little weight to Downey's
failure to follow work rules despite the fact that
the January 1985 probation was found lawful. In
denying the appeal of the charge's dismissal the
General Counsel relied on the fact'that "the Em-
ployer traced back its production process in order
to determine which` employee had administered the
various chemicals which, had resulted in the bad
dye lots." The General Counsel found no evidence
of disparate treatment towards Downey in the issu-
ance of the final warning.
The crucial,: uncontroverted fact in this case is
that during the period of this second probation
Downey again made a major error, resulting in 26
rolls of cloth being dyed the wrong color. My col-
leagues find disparate treatment in the Respond-
ent's discharging Downey pursuant to'the terms of
his probation while failing to-'discipline' other em-
ployees who were not on such probation - when
they committed errors.-The two situtations-are not
comparable.
Finally, the judge relied chiefly on Plant Manag-
er Horton's statement to Downey at the time of his
discharge that Downey had not followed "the phi-
losophies and policies" of the Company to support
a fording that' D'owney's discharge was a pretext
for the Respondent's true motive of ridding-itself of
a union supporting troublemaker. The record does
not support his conclusion. In July - and August
1985 the Respondent embarked on a campaign to
resolve employee production problems and en-
hance company productivity. To that end, in Sep-
tember 1985 the Respondent distributed written
procedures to avoid errors. The rules called for
employees to check each price number of each-roll
of material against each piece listed on an' order
sheet. Although Downey admitted receiving the' in-
structions document, he chose to ignore it and, in
the incident that led to his discharge,- checked, only
1 roll out of 27 against the customer order sheet.
As a result, the remaining 26' rolls were dyed the
wrong color. Clearly, Downey, who was on proba-
tion for careless ' work; was not an employee, who
simply "made a mistake," but one who continually
disregarded the Company's urgent', efforts to im-
prove production. By failing to follow procedures
specifically designed to eliminate rework, Downey
demonstrated that he had no interest in the Compa-
ny's concern over wasted worktime and produc-
tion.'
It follows logically that Horton's statement that
Downey was not following the Company's philoso-
phies and policies" referred precisely-'to that: the
Respondent's repeated efforts to get Downey to
POTTSVILLE BLEACHING CO. 363
follow instructions and avoid costly errors Were
being frustrated. Downey's admitted negligence ran
counter to the Respondent's goals and resulted in
his discharge. In my view, the record taken as a
whole provides no basis for the majority's finding
an unlawful motive for the discharge over the
lawful one set forth by the Respondent.4 As noted
above, in establishing an 8(a)(3) violation, the Gen-
eral Counsel must show the protected conduct was
a motivating factor in the Respondent's decision to
take adverse action. More than "suspicion"5 is
needed. The General Counsel's case falls far short
of this requirement. I therefore dissent.
4 Mini-Industries, 255 NLRB 995 ( 1981).
a .Midwest Stock Exchange v. NLRB, 635 F.2d 1255, 1264-1265 (7th Cir.
1980); Hardwick Ca v NLRB, 263 NLRB 302, 306-307 (1982).
Marvin L. Weinberg, Esq. and Richard P. Heller, Esq., of
Philadelphia, Pennsylvania, for the General Counsel.
Barry R. Elson, Esq. (Cohen, Shapiro, Polisher, Shiekman,
and Cohen), of Philadelphia, Pennsylvania, for the Re-
spondent.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAw
BENJAMIN SCHLESINGER, Administrative Law Judge.
On 2 October 1985, employee Ronald Downey was ter-
minated by Respondent Pottsville Bleaching and Dyeing
Company. The complaint alleges that his termination
violated Section 8(a)(3) and (1) of the National Labor
Relations Act, 29 U.S.C. § 151 et seq.' Respondent
denies that it was, contending that Downey was subject
to a final warning letter, dated 14 January 1985, which
placed Downey on probation for 1 year and stated:
"Should any action on your part during this period of
probation cause the issuance of a written warning for any
reason, you shall be terminated from [Respondent] imme-
diately and irrevocably."
I find, as Respondent admits, that Respondent is a
Pennsylvania corporation engaged in the bleaching and
dyeing of tubular fabrics at its Port Carbon, Pennsylva-
nia facility.2 During the year preceding the issuance of
the complaint, Respondent received more than $50,000
for services performed on the goods of customers locat-
ed directly outside Pennsylvania, which goods are
shipped from and returned to the customers. I conclude
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.3 I also conclude, as Respondent admits, that the
i The relevant docket entries are as follows : The unfair labor practice
charge was filed by Teamsters Union Local 115, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Teamsters) on 12 November 1985; the complaint
issued on 27 December 1985; and the hearing was held in Reading, Penn-
sylvania, on 2-3 April 1986.
2 Respondent maintains another facility at Schuylkill Haven, Pennsyl-
vania, called its Independence plant.
8 The Board in two earlier decisions has asserted jurisdiction over Re-
spondent. 275 NLRB 1236 (1985) and 277 NLRB 988 (1985).
Teamsters is a labor organization within the meaning of
Section 2(5) of the Act.
Downey was an active supporter of labor organization
in Respondent's Port Carbon facility . In 1979- 1980, he
was the steward for the independent union which repre-
sented the production and maintenance employees. When
the Textile Workers Union attempted to organize those
employees in 1980, he was an observer in the Board-con-
ducted election . When the Teamsters tried to organize in
1982, Downey solicited union authorization cards, dis-
tributed pamphlets , and Was an observer at elections held
in March and December 1982 . He participated in another
Teamsters campaign in 1984 by handing out cards and
pamphlets and talking with employees, and he was an al-
ternate observer in another election that year . Again, in
late 1984 and early 1985 , he was active in enlisting sup-
port for the Teamsters , although he was disabled with a
broken ankle when the election was held in March
1985 .4 After he voted in that election, Downey stopped
on his way out to talk to another employee . Richard
Horton, Respondent's plant manager of its Port Carbon
facility, told Downey to "get the hell out of the plant,"
but Horton permitted another employee , also on disabil-
ity leave, to speak to other employees. Furthermore,
Downey was a witness in both prior unfair labor practice
proceedings.
Thus, there is sufficient evidence to impute to Re-
spondent knowledge of Downey 's union support for at
least 5 years, but there is even more here . At an employ-
ee meeting held in October 1984 , Horton stated that he
could not afford to have any union problems whatsoever
and turned to Downey, saying : "Do you understand that,
Ron?"5 On 14 January 1985, Horton issued a warning
letter to Downey that read, in part, as follows:
It was pointed out. and by your own admission,
you produced 40-percent bad work on your dye
machines during the period from January 2, 1985
through January 8, 198'5. The performance is unlike
any that can be recalled at Pottsville Bleach and
Dye. Others running similar machines producing
similar work, or on the same machine, but another
shift, did not produce, in the least, the amount of
rework you were responsible for during the period
in question, or at any time outside of said period.
Since you offered no mitigating reasons for your
poor performance, the Company had no alternative
but to initiate the following conditions for your
continued employment:
You are being issued a Final Warning for these
incidents of poor quality performance , which imme-
diately places you on a one (1) year probationary
period. Your probationary period commences
Friday, January 11 , 1985 and concludes on Friday,
January 10, 1986 . It is extremely important, and
please be advised that during this probationary
4 The ballots were impounded and had not been opened at the time of
the hearing.
5 This was not denied by Horton. The Board, in 277 NLRB 988, cred-
ited this testimony , which included Horton's threat to lock Respondent's
doors.
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
period, the following conditions shall exist : Should
any action on your part during this period of proba-
tion cause the issuance of a written warning for any
reason ,, you shall be terminated from Pottsville
Bleach and Dye immediately and irrevocably. Or,
if, during the term of your probation and as a result
of Company analysis, your job performance should
produce an excess of seven percent (7%) rework in
any one (1) week period, you shall be terminated
immediately and irrevocably. Since you admitted
during the ,January 11 meeting that you totally un-
derstand circumstances surrounding conditions of
employment for an employee on a final Warning
and probationary period, you shall be, held account-
able during this entire period.
This decision was based on a series of self-initiat-
ing events of --poor quality performance on your
part. Termination was not initiated for these inci-
dents because of the ambiguity of the conditions of
your current probationary period. Consequently,
this decision shall not set precedent, nor shall it
prejudice future cases of similar nature.6 -
The Teamsters filed an unfair labor practice charge
(Case 4-CA-14808-3) to protest this warning . It was dis-
missed on 29 March 1-985 by the Acting Regional Direc-
tor, who wrote:
The investigation disclosed that the Employer
issued a written warning to Ronald Downey and
extended his probationary status for one year after
he produced five bad dye lots in a period of five
days. It was noted that Downey was not dis-
charged, and the evidence established that other
employees have been disciplined for similar of-
fenses . Under such circumstances, the Board has
held that an employee may be lawfully disciplined,
even if the employee has also engaged in union ac-
tivities or testified in a Board proceeding. See P.G.
Beland Paint City, Inc., 199 NLRB 927; Wright Line,
A Division of Wright Line, Inc., 251 NLRB 1083.
Accordingly, I am refusing to issue complaint as to
the Section 8(a)(3) and (4) portions of the charge.
The Office of Appeals affirmed this dismissal on 29 April
1985, finding that Respondent "had traced back its pro-
duction process in order to determine which employee
had administrated the various chemicals which had re-
sulted in the bad lots" and that "the evidence failed to
establish that [Respondent] engaged in disparate treat-
ment."
'S On 19 June 1994, Respondent issued the following letter to Downey:
The Company Work Rules state that a Final Warning places an
employee immediately on twelve months' probation . It also states
that any further violations during the twelve month period of proba-
tion will result in immediate discharge Please keep this warning up-
permost in your maid
There was enclosed a copy of Downey's absenteeism record. Horton
testified that he did not discharge Downey for the January 1985 incidents
because ' his counsel advised that the June warning was ambiguous in its
reference to Downey's record of absenteeism.
The General Counsel does not contest the legitimacy
of this -dismissal, relying as' it does on Wright Line,7
which permits Respondent, despite a showing that its
discipline was illegally motivated, to prove that it would
have taken,the same-action against Downey based on
lawful considerations. But the General,Counsel also in-
troduced evidence, as background for Respondents mo-
tivation in the proceeding, to prove that ,there was more
to the discipline of Downey than was considered by the
Region and the Office of Appeals. Employee Frederick
Powers testified that in late winter, in January, February,
or March 1985, he happened on a black looseleaf folder,
bearing the name on the ' cover "Richard Flagg," the
then Port Carbon plant superintendent,- in which the' fol-
lowing appeared:
Q. Could it have been caused by bad water?
A. Yes.
Q. Can we prove that the bad coppering was
Downey's fault?
A. Depending on the investigator's knowledge.
Q. Can I fake my way through this?
A. Yes.
This newly discovered evidence, of course, implies
that Respondent not only purposefully attempted to
blame Downey for the bad dye lots but also, schemed to
prove that the bad dye lots resulted from his error,
rather than their being caused by -"bad water." Thus,
both the reason for the production error and the perpe-
trator of the error ' were concocted, demonstrating that
Respondent was prepared to use anything at its disposal
to rid itself of Downey; and I am asked to extend this to
a finding that the reason that Respondent desired to dis-
cipline Downey in October' 1985 was his union activities.
On the other hand, the General Counsel on numerous
occasions during the hearing repeated his position that
he was bound by the findings of the Regional` Office and
was not arguing that the 14 January 1985 probation was
tainted. Indeed, I fmd sufficient support in the record
that Downey's work in the week commencing 2' January
1985 was as bad as Respondent claimed, that there' were
five bad lots constituting 40 percent of the bad lots pro-
duced in that period, and that others who prepared other
bad lots were given oral warnings." Furthermore; Re-
spondent- called Richard Flagg as' a witness, and Flagg
testified that he maintained no such looseleaf folder and
that he never wrote what was imputed to him.
I do not credit his testimony. In weighing the testimo-
ny, I fmd that Flagg,had much to gain in supporting his
denials and that he was in early 1985 conducting a study
of work that was improperly performed in the facility.
T Approved in NLRB v, Transportation Management Corp., 462 U.S.
393 (1983).
E Under Respondent's disciplinary system, the first warning is an oral
warning, which is, notwithstanding its description, written and placed in
the employee's file. The second warning is written. The next warning is a
final warning, following which is a discharge for any further violation
This system is not strictly followed. Employee Norman Umphrey re-
ceived five warnings before he was discharged. All but one were for bad
work. In addition, his personnel file contains six notations for bad work
for which he was not given written warnings
POTTSVILLE BLEACHING CO.
Thus, it was not improbable that Flagg would, have writ-
ten what Powers stated. I further find that Powers, sup-
ported in part by employee George Chiccini, had little to
gain from his testimony. It is true that Powers supported
the Teamsters, which might give his testimony less
weight; but he was also not friendly with Downey, with
whom he had differences of opinion, on one occasion
knocking a soda out of Downey's hand. Chiccini, who
recalled that- there were questions and answers but was
unable to recall specifically what, testified he "glanced"
over, was positive that he saw the book with Flagg's
name on it, and remembered that it mentioned that Dow-
ney's "redyes" or "reruns" may have been caused by
corroded water lines coming into the plant. Chiccini was
not a Teamsters supporter, and both he and Powers be-
lieved that they could be in trouble because they looked
at the book. With-that fear, they, as current employees,
would have no reason to fabricate their testimony about
the existence of Flagg's book, which might get them in
further trouble. The, book was not produced, although
subpoenaed by the General Counsel. The only explana-
tion for its nonproduction was that it never existed. I
credit the employees' testimony that it did exist, find that
there was no credible reason that it was not produced
pursuant to the subpoena, and credit the testimony of the
two employees. Bannon Mills, 146 NLRB 611 (1964);
Auto Workers v NLRB, 459 F.2d 1329, 1338-1339 (D.C.
Cir. 1972).
Notwithstanding the imputation of an illegal-motive in
the issuance of the 14 January 1985 warning, I am still
bound to find that the warning would have been issued
in any event. I turn then to the incident for which
Downey was discharged. When Downey had recovered
from his broken ankle, he was assigned as a dye opener.
His duties included obtaining the raw material that was
to be dyed. Each order was kept on a separate rack,
which contained up to 35 rolls of cloth. The parties were
at odds about what Downey was required to do once he
received an order, which set forth the numbers of each
roll required to fill the order. Inasmuch as the truckers at
the Independence facility had separated'each order and
put the rolls for that order on a separate rack, each roll
being marked on the outside with a roll number,
Downey testified that his sole responsibilities were to
check the rack number, to check one roll on the rack
against the order sheet, and then to count the number of
the rolls to ensure that the number on the, order ' sheet
matched. If that roll, was on, the sheet, the rest of the
order should be on the rack. This testimony was cor-
roborated by employee Daniel Daubert, who, worked for
3 weeks as a dye opener in 1978 or 1980. to the con-
trary, Respondent's witnesses uniformly testified that
Downey was to check each roll on the rack and check it
off -against each roll number on the order to ensure that
no rolls were missing , and that all rolls of cloth that were
to be dyed were included in the order. Obviously, if an
incorrect roll were dyed a different color, that roll
would have to be redyed, an unnecessary expense for
Respondent.
What happened on 26 September 1985 was that
Downey checked only one roll on the rack and' ascer-
tained that the roll numbered 261770, which he opened,
365
was part of the order, number that was to be dyed navy
blue. Downey's luck was bad. Out of 27 rolls on the
rack, only the roll numbered 261770 was properly on the
rack; the other 26 were part of another, of the same cus-
tomer's goods, which were to be dyed red. So, all the
rolls were dyed navy blue.
I credit Downey, insofar as I find that he understood
that it was his responsibility to match only one roll on
the rack with the order. I discredit all testimony to the
contrary," noting that Respondent could have called a
current employee to testify to the practice but did not do
so. Nor did it call Downey's supervisor who, Downey
testified, gave him that instruction. However, Downey
admitted that, only a week before the incident, he was
given instructions that required him to match all the 27
rolls and not select only one. His explanation that he did
not realize that the opening procedure had been changed
is no excuse; he admittedly did not follow the instruc-
tions and, without more, there appears to be cause for
Respondent's discharge of him, notwithstanding his
union activities. But, when he was discharged, Horton
praised -him as a good worker and said it was a- shame
that he, had to be terminated, that Horton would give
Downey a good reference, and that "it was just too bad
that [Downey] didn't obey the philosophies and the poli-
cies of the company."
Not only does this praise, which was not denied by
Horton, indicate that Downey's error may have been a
mere pretext for his discharge, but also the- General
Counsel argues that Respondent's treatment of 'Downey
was much harsher from the way it treated its other em-
ployees who, in the summer of 1985, were involved in
two 'errors that involved the reworking of significant
orders. One involved a bleaching, processing; dyeing,
and finishing job for Argo of about one to three tractor-
trailer loads of cloth, all of which was returned for being
dirty and 'greasy. Employee Nelson Sims said that
Horton met with all the finishing department employees
on his shift, whom he told that Argo was not pleased
and he was not pleased and-that the stains should have
been found out about before the goods left Respondent's
facility. He complained particularly to the rollers and
roller helpers; but, despite the fact that the employees
got their "butts chewed -out," Horton took no' discipli-
nary action.
The second involved a job of dyeing, processing,
fleecing, and cutting to order 'of sweatsuit material for
Continental, who returned the goods because of pressure
marks put on by the rollers. Sims and two others were
summoned to Horton's office, where he told them that
he was not happy and "all our jobs" (which, to -Sims,
meant him and his partner Underwood) were "'on the
line" for this mistake; but again no discipline was given.
The Continental job involved 8000-10,000 pounds of
material; the Argo job, about 7000-8001) pounds. Al-
though Horton testified that only 10 percent of the Argo
job had to be reprocessed-and Horton testified' that it
was "very rare" to have a mistake of that magnitude-
9 I was particularly unimpressed with Horton's demeanor, finding hum
at times unresponsive and his testimony inconsistent.
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Daubert said that 240-300 rolls of fabric, about three-
quarters of the order, had to be processed to remove the
stains . Daubert knew firsthand what was actually done,
and I credit him. Compared to those jobs was the one
Downey erred on, which was less than 1000 pounds. In
addition, Downey's job did not involve any rework.
Horton consulted with his customer, who permitted Re-
spondent to dye its other lot red, although it was origi-
nally intended to be navy blue. Thus, the General Coun-
sel contends that Downey should not have ' been disci-
plined at all.
Horton agreed that he did not discipline any of the fm-
ishers; but he explained that the stains on the Argo job
could not be detected while the fabric was being run
through the machines, which run at 60 yards per minute,
with steam coming out of-the fabric. However, he' admit-
ted that there were stains or dirt on the outside of the
rolls, that somebody should have noticed them, and that
the finishing supervisors and operators were responsible.
Yet, he testified that because he could not pinpoint who
was to blame, he imposed no discipline, despite the fact
he lectured the three shifts of the entire department and
"raised the roof" about the quality of the job. He also
stated that all the employees were "verbally warned,"
but he later amended that to "counseled"; and no formal
writings memorializing oral warnings were put in any
employee's file.
Horton also testified that the Continental job was the
fault of no one. The customer had asked to inspect the
work at `Respondent's Independence facility. There,
under brighter lights than at the Port Carbon facility, the
customer turned the fabric over and discovered a slight
impression on the back. Respondent agreed to refleece
the fabric, and Horton explained that the employees
would not have been able to see the impression because
it was on the back of the fabric, they had not been told
to turn the fabric over, and it would not have been seen
in the more dimly lit room at Port Carbon. Horton testi-
fied that he talked with the employees to make them
aware ' of how the problem arose and to look for the
problem, but he did not consider the incident one that
should have led to discipline.
That Horton summoned Sims and two other employ-
ees-to his office, a fact not denied (but not remembered)
by Horton, might have seemed threatening to Sims. And
it may well be, that Horton said something about "all our
jobs being on the line," but it appears that Horton in his
own way was simply calling to the employees' attention
the fact that Respondent relied on good work to contin-
ue business with its customers and that they should be
aware and-look for this particular problem with the roll-
ers. Indeed, Sims testified that he did not consider what
Horton said as a, warning or a threat, that he might be
fired. I do not find that the Continental errors, if errors
of the employees they be, rather, than errors caused by
Respondent's machines, represented the type of incident
from which disparity may be claimed. Rather, Horton
found that the solution for the type of fabric being rolled
was to use a different machine, which ' had rollers that
did not make the larger impression that Continental had
complained about. Thus, counseling, rather than disci-
pline, was called for and was given.
The errors committed on the Argo job present a more
serious claim. Those who shipped the fabric with dirt
and grease stains on the,outside of the rolls were as cul-
pable as Downey. There were employees who could
have been identified and were,identified and. should have
been disciplined. Horton admitted that the fault lay with
the finishing supervisors and finishing operators, yet they
were not disciplined.
It is true that Downey was on notice that he was sub-
ject to a year's probation and that any further problem
would subject him to discharge. Nonetheless, Downey
did not match up all the rolls of fabric with the order.
His failure to perform cannot be excused -solely because
he was also a union activist. But I am not persuaded that
Respondent would have disciplined him in the absence of
his union activities.10 I cannot dismiss lightly Horton's
final statements to him that it was because he did not
obey Respondent's "philosophies and policies" that he
was discharged. Those "philosophies and policies," I
find, were different from the "written rules" and "in-
structions" that Downey was accused of violating. None
of the rollers or finishers on the Argo job was accused of
violating Respondent's "philosophies and policies,"
which equate with Respondent's anti-Teamsters attitude
and Downey's pro-Teamsters sentiments. Furthermore,
Horton's praise of Downey as a good worker is incon-
sistent with the defense that Downey was fired as a
result of his bad work.' 1 I find disparity here and find
that Downey's error, which subsequently proved to be
innocuous and harmless, was utilized as, a pretext for his
discharge. If Downey had not been an active Teamsters
supporter, he would have been treated as lightly as were
the employees who worked on the Argo fabric and
caused Respondent to reprocess that job. 1 2 I can find no
reason for his discharge other than his union activity. I
conclude that Respondent violated Section 8(a)(3) of the
Act.
The unfair labor practice found above, occurring in
connection with Respondent's business, has a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tends to lead to
labor disputes burdening and obstructing commerce ' and
10 The General Counsel also contends that the trucker or warehouse-
man who placed the rolls of fabric on the rack should have been d'isoi-
plined but Horton conceded that he was not. On the one hand, Downey
was the one to check that the trucker or warehouseman did not make a
mistake and he did not do what he was paid to do. On the other hand,
the trucker or warehouseman made a mistake, and Horton did not inves-
tigate that mistake and obviously made no recommendation of disciph-
nary action.
11 Bill Fox Chevrolet, 270 NLRB 568, 575 (1984).
12 Respondent contends that it evidenced no union animus because in
the past it promoted certain employees who were known Teamsters ad-
herents. Respondent conveniently forgets that the Board has recently
twice found Respondent in violation of the Act in 275 NLRB'1236 and
277 NLRB 988. See also Jacobo Marti & Sons Inc., 264 NLRB 30 fn. 1
(1982), which relies on earlier findings to demonstrate union animus.
Respondent also contends that, if its reason for taking action against
Downey was based on his union activities , it could have terminated him
earlier. I find that merely because it waited does not negate its animus.
Indeed, Horton thought of dismissing Downey earlier; but found that he
could not utilize the first final warning for absenteeism because Respond-
ent's attorney advised that that warning was limited to absenteeism and
was thus "ambiguous."
POTTSVILLE BLEACHING CO.
the free flow thereof within the meaning of Section - 2(6)
and (7) of the Act.
THE REMEDY
Having concluded that Respondent unlawfully en-
gaged in an unfair labor practice, I shall recommend that
it cease and desist therefrom and take certain affirmative
action . Specifically , I shall order Respondent to offer
Ronald Downey full and immediate reinstatement to his
former position or, if that position no longer exists, to a
substantially equivalent position of employment, without
prejudice to his seniority or other rights and privileges,
and make him whole for or any loss of wages or other
rights and benefits he may have suffered as the result of
the discriminaton against him in accordance with the for-
mula prescribed in F W. Foolworth ' Co., 90 NLRB 289
(1950), with interest as provided for in Florida Steel
Corp., 231 NLRB 651 (1977).1 3 I shall also order Re-
spondent to remove from its records any reference to
Downey's unlawful discharge and notify him in writing
that this has been done and that evidence of his unlawful
discharge will not 'be used against him in any way. The
General Counsel has requested that my recommended
Order include a visitatorial clause authorizing the Board
to engage in discovery under the Federal Rules of Civil
Procedure so that it will be able 'to monitor compliance
with the Board 's order, if enforced by a court of appeals.
I am unpersuaded that existing procedures are, inadequate
to ensure compliance , especially where the order pro-
vides only for the reinstatement and payment of backpay
for one employee.
On the foregoing findings of fact and conclusions of
law and the entire record in this proceeding , 114 including
my observation of the demeanor of the witnesses as they
testified, and my consideration of the briefs filed by the
General Counsel and Respondent , and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended) s
ORDER
The Respondent, Pottsville Bleaching and Dyeing
Company, Port Carbon, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against its
employees because they engaged in activities on behalf
of Teamsters Union Local No. 115, affiliated with the
International Brotherhood of 'Teamsters, Chauffeurs,
Warehousemen and Helpers of America or any other
labor organization.
(b) ' In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
11 See, generally, Isis Plumbing Co., 138 NLRB 716 (1962).
14 Respondent moved to amend the official transcript in certain re-
spects. There being no opposition, the motion is granted and the tran-
script is amended accordingly.
is If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
367
rights guaranteed, them by Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate reinstatement to Ronald Downey
to his former position or, if that position no longer exists,
to a substantially equivalent position of employment,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay or
any other benefits he may have suffered as a result of the
discrimination against him in accordance with the provi-
sions set forth above in the remedy section.
(b) Remove from its files any reference to the unlawful
discharge of Ronald Downey and notify him in writing
that this has been done and that evidence of his unlawful
discharge will not be used against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other docu-
ments necessary to analyze and compute the amounts
due hereunder.
(d) Post at its Port Carbon, Pennsylvania facility
copies of the attached notice marked "Appendix."16
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately on receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply.
16 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against our employees because they engaged in activities
on behalf of Teamsters Union Local No . 115, affiliated
with the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America or any
other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by, Section 7 of the National
Labor Relations Act.
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer immediate reinstatement to Ronald
Downey to his former position or, if that position no
longer exists , to a substantially equivalent position of em-
ployment, without prejudice to his seniority or other
rights and privileges and make him whole for any loss of
pay or any other benefits he may have suffered as a
result of the discrimination against him , with interest.
WE WILL remove from our files any reference to the
unlawful discharge of Ronald Downey and notify him in
writing that this has been done and that evidence of his
unlawful discharge will not be used against him in any
way.
POTTSVILLE BLEACHING AND DYEING
COMPANY