Rockwell International Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1986

278 N.L.R.B. 55 (N.L.R.B. 1986)

ROCKWELL CORP. 55
Rockwell International Corp. and Communications
Workers of America, Local 3263 . Case 10-CA-
20815
16 January 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 5 September Administrative Law Judge
Philip P. McLeod issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party
filed briefs in response to the Respondent's excep-
tions.
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,' and
conclusions and to adopt the recommended Order.
know which employees had signed authorization cards
on behalf of the Union; soliciting and providing its em-
ployees with assistance to withdraw their authorization
cards from the Union; threatening employees with repris-
als if employees joined, or engaged in activities on behalf
of, the Union; and issuing a disciplinary written warning
to, and later discharging, employee Kathy B. Denaple
because of her activities on behalf of the Union.
In its answer to the complaint, Respondent admitted
certain allegations, including the filing and serving of the
charge, its status as an employer within the meaning of
the Act, the status of the Union as a labor organization
within the meaning of the Act, and the status of various
individuals as supervisors and agents of the employer
within the meaning of Section 2(11) of the Act. Re-
spondent denied having engaged in any conduct which
would constitute an unfair labor practice within the
meaning of the Act.
At the trial, all parties were represented and afforded
full opportunity to be heard, to examine and cross-exam-
ine witnesses, and to introduce evidence. Following the
close of the trial, all parties filed timely briefs with me
which have been considered.
On the entire record in this case and from my observa-
tion of the witnesses , I make the following
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Rockwell
International Corp., Norcross, Georgia, its officers,
agents, successors, and assigns , shall take the action
set forth in the Order.
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 Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Milton D. Jones, Esq., for the General Counsel.
Gavin S. Appleby, Esq. and Lawrence Ashe, Jr., Esq. (Paul
Uastings, Janofsky & Walker), of Atlanta, Georgia, for
the Respondent.
Kevin D. Fitzpatrick, Jr., Esq., of Decatur, Georgia, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. This
case was heard by me on June 10 and 11, 1985, in Atlan-
ta, Georgia. It originated from a charge filed on March
15, 1985, by Communications Workers of America,
Local 3263 (the Union), against Rockwell International
Corp. (Respondent).
On April 19, 1985, a complaint and notice of hearing
issued alleging, inter alia, that Respondent violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act,
by threatening its 'employees that Respondent would
FINDINGS OF FACT
I. JURISDICTION
Rockwell International Co. is a Delaware corporation
with an office and place of business located at Norcross,
Georgia, where it is engaged in the manufacture of
wiring harnesses used in guided missiles . During the past
12 months, which period is representative of all times
material herein, Respondent sold and shipped from its
Georgia facilities finished products valued in excess of
$50,000 directly to customers located outside the State of
Georgia. Respondent is, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Communications Workers of America, Local 3263 is,
and has been at all times material herein, a labor organi-
zation within the meaning of Section, 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
At facilities in Norcross and Duluth, Georgia, Re-
spondent manufactures wiring harnesses used in guided
missiles produced for the United States military. Wire
harness assembly, where Kathy Denaple worked, in-
volves the construction and soldering of a complex maze
of wires which, when completed, makes up a harness.
The operation in question, is classified by the United
States Government as "top secret."
During July 1984, Communications Workers of Amer-
ica, Local 3263, began an organizing campaign among
Respondent's employees. Director of Human Resources
Ron Rice admitted that he first learned of the union
278 NLRB No. 13
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign on July 17 when he received a telephone call
from one Tony Hightower. Hightower, who is not em-
ployed by either Respondent or the Union, informed
Rice he felt it his duty to inform Rice that the Union
was conducting an organizing campaign among Re-
spondent's employees. Over the course of the next
month, Hightower telephoned Rice on several occasions,
volunteering various information about the union cam-
paign. According to Rice's uncontroverted testimony,
Hightower estimated the number of authorization cards
which had been signed, offered the names of the Union's
in-plant organizers, and offered to deliver the Union's
entire file regarding the campaign. According to Rice, he
repeatedly refused these offers, but asked Hightower
simply if Hightower knew why employees might be mo-
tivated to join or support a union . The record is not
clear whether Rice received any answer to this question.
In late July 1984, Rice informed former Manager of
Employee Relations Joe Middleton about these calls
from Hightower. Current Manager of Employee Rela-
tions Wanda Saed testified that she was not informed of
the calls from Hightower. Nevertheless, Saed admits
having heard rumors of union authorization cards being
passed out in the plant during July 1984. Further, Saed
and Middleton conducted meetings with Respondent's
supervisors during the first week of August 1984 to edu-
cate management about basic principles of the National
Labor Relations Act. It is clear that by early August,
Respondent and all its supervisors were aware that an
organizing campaign was under way.
Employee Kathy Denaple began to participate in
union activities in late July 1984. According to Denaple,
she has attended every one of the meetings which the
Union has held with employees, including July, August,
September, October, and November 1984, as well as Jan-
uary and February 1985. Denaple has distributed union
authorization cards at Respondent's facility at various
times throughout the period from July 1984 through
February 1985.
B. Respondent's Meetings with Employees
Denaple testified that Respondent conducted two
meetings with employees, the first in October 1984 and
the second in November 1984, about a month after the
first meeting. According to Denaple, the first meeting
took place in the break room and was attended by about
75 to 100 employees and 10 to 15 supervisors. Middleton
addressed the group, telling them that he knew there was
a union drive at Respondent's facility and authorization
cards were being distributed to employees. According to
Denaple, Middleton then stated that even though the
Union had told employees the authorization cards were
confidential, they really were not, and Middleton could
get copies of them. According to Denaple, Middleton
also told employees that he had "busted up" unions
before, and anyone who signed a union card could get it
returned to them by taking a sample letter from him,
signing it, and returning it to him to forward to the
Board. According to Denaple, Middleton and another
supervisor then distributed sample copies of an authoriza-
tion-card-revocation-letter to employees, For reasons ex- limitations September 16, 1984
plained , below I do not credit Denaple concerning the
significant elements of this alleged meeting.
Employee Ronnie Emerson was called as a witness by
counsel for General Counsel. Emerson, like Denaple, tes-
tified that he attended two meetings held by management
with employees. Emerson placed the first meeting about
a month to 6 weeks after the Union's organizing cam-
paign began, i.e., in late August 1984.1 Emerson, like
Denaple, testified that Middleton addressed a group of
75 to 100 employees in the break room. According to
Denaple, Middleton told employees that they did not
need a union . Emerson also testified that Middleton told
employees he would get a copy of their signed union au-
thorization cards because the Union would furnish him
with a copy of the cards as they were signed. Emerson
did not recall anyone passing out a sample letter to em-
ployees at this meeting.
Middleton and Saed both testified that on August 2
and 3, 1984, they held small group meetings with all em-
ployees to discuss various union-related matters. Both
testified that they read from prepared statements from
which they did not deviate. The statements were intro-
duced herein. The statement read by Middleton does not
contain any discussion of union authorization cards,
while that read by Saed does. Saed informed employees
that the authorization card was more than a simple dec-
laration of interest in having an election conducted, that
it indeed authorized the Union to represent the individ-
ual for purposes of collective bargaining . Saed then con-
tinued:
If you have signed a card and now want to get it
back, simply write a letter to the NLRB in Atlanta
and to the main CWA office in Decatur. A sample
letter is in this handout with the addresses. Send
your letter by certified mail.
Saed and Middleton testified credibly that nothing else
was said by either of them regarding union authorization
cards.
Denaple testified that in the second meeting held by
management with employees which occurred in Novem-
ber 1984, Middleton again addressed employees. Accord-
ing to Denaple, this second meeting was attended by the
same individuals as the first meeting and was held in the
same place. Denaple testified that at this meeting, Mid-
dleton told employees that they did not need a union.
According to Denaple, Middleton also told the assem-
bled group that a fellow employee had been cut by a
union representative in Respondent's parking lot when
the individual refused to take a union authorization card.
Finally, Denaple testified that Middleton gave employees
a list of questions to ask the Union.
Employee Emerson dates the second' meeting about a
month after the first meeting, thereby placing it in late
September 1984. According to Emerson, the second
meeting was again attended,by approximately 75 to 100
employees and conducted in the break room. Emerson,
like Denaple, testified that at this second meeting Mid-
' The charge was filed on March 15, 1985, making the 10(b) statute of
ROCKWELL CORP.
dleton told employees that they did not need a union.
According to Emerson, however, Middleton again re-
peated to employees that authorization cards were not
confidential and that the Union would let him know who
signed cards. Emerson expressly testified that Middleton
made this remark to employees at both meetings.
Rice testified that the second set ofmeetings at which
Respondent representatives addressed employees regard-
ing the union campaign occurred on August 20 and 21.
According to Rice, these were regularly scheduled meet-
ings, and originally the union campaign was not a sched-
uled part of the agenda. Union representatives, however,
handbilled Respondent's facility on those dates. As a
result, Rice knew that the subject of a union was bound
to come up in the already scheduled meetings. I credit
Rice in this regard. Rice then made some handwritten
notes on his copy of the meeting agenda in order to re-
,spond to questions that might come up. Rice testified
that at one of the meetings, an employee asked if Rock-
well would ever get to see the authorization cards which
had been signed by employees. Rice then testified, "And
I said, at some point in this process, there has to be veri-
fication of signatures. But I said, even if I were offered
the opportunity to view these cards to know whether or
not you had signed one, I would refuse it." Rice testified
that this was the only time the subject of card anonymity
arose in any of the meetings. Middleton denied ever tell-
ing employees that union cards were not anonymous or
that he would ever have the, opportunity to see them.
Middleton is corroborated by Saed and Rice.
According to all of Respondent's witnesses, the re-
marks made at the all-employee meetings on August 20
and 21 were the last time that Respondent has ever ad-
dressed employees about the subject of the Union.
[ find the testimony of Rice, Middleton, and Saed
more reliable than that of Denaple and Emerson regard-
ing Respondent's meetings with employees. The testimo-
ny of Respondent's witnesses is' not only mutually cor-
rolborative but is supported by copies of the actual re-
marks read by Middleton and Saed to employees in the
first meeting and by Rice's notes relating to the second
meeting. I credit the testimony of Middleton, Saed, and
Rice regarding these employee meetings. I find that Re-
spondent held only two series of meetings with employ-
ees at which the Union was discussed, the first about
August 2 and 3, and the second about August 20 and 21.
At no time did Middleton, or any other representative of
Respondent, threaten employees that Respondent would
know which employees had signed union authorization
cards. At the meetings on August 2 and 3, Respondent
did advise employees how to revoke their union authori-
zation cards and provide employees with a 'sample letter
they might use for this purpose. I conclude, however,
that Respondent's actions did not violate Section 8(a)(1)
of the Act' as alleged, for two reasons. First, Respondent
passed out the sample letter to employees on'August 2
and 3, 1984, more than a month prior to the applicable
10(b) statute of limitations. Second, an employer may
lawfully inform employees of their right to revoke au-
thorization' cards, even if employees have not solicited
such information, as long' as the employer makes no at-
tempt to ascertain whether employees avail themselves
57
of this right nor offers any assistance nor offers any as-
sistance nor otherwise creates the impression that em-
ployees are in peril by refraining from revoking their
cards. Mariposa Press, 273 NLRB 528 (1984). The facts in
this case do not warrant a conclusion that Respondent
created the impression employees would be in peril if
they chose not to revoke their authorization cards. Nor
is there any evidence that Respondent made any effort to
ascertain whether employees actually chose to revoke
their cards. Accordingly, I find that Respondent did not
violate Section 8(a)(1) of the Act, as alleged, and I shall
dismiss that allegation in the complaint.
C. Supervisor Cash's Threats to Denaple
Denaple testified that on two occasions, one in late
October 1984 and the other in late November 1984, Den-
aple's supervisor, Brennice Cash, threatened her that her
work record would suffer for engaging in union activity.
According to Denaple, on both of these occasions Cash
summoned Denaple to a conference room for a private
conversation. Denaple testified that the first conversation
began by Cash asking Denaple if she was involved with
the Union. Denaple testified she replied that it was none
of Cash's business. According to Denaple, Cash then
stated-that if Denaple was involved with the Union, or if
she stayed involved, it would hurt Denaple's work
record. Cash denied that the alleged conversation with
Denaple ever took place.
Denaple testified that the second conversation began
by her again being summoned to a conference room by
Cash. Denaple testified Cash stated that if Denaple was
involved in the Union, Denaple was going to hurt her
work record. According to Denaple, Cash then stated
that Denaple did not need to be involved with a union,
that the Company could straighten out any problems that
it had. Denaple replied that it -was her business if she
wanted to be involved with the Union. Cash told Dena-
ple she would only hurt herself. Denaple replied that her
work record should have' nothing to do with whether
she was involved with' the Union. According to Denaple,
Cash stood up, said, "That would be all," and the con-
versation ended. Cash' also denied that this second con-
versation ever took place.
According to Cash, the only conversation about the
Union that ever occurred between her and Denaple took
place on the work floor and was initiated by Denaple.
At some point during' August or early September 1984,
Denaple remarked to Cash one day that she did not feel
well, that she had been to a union meeting the night
before, had stayed out late, and got drunk. According to
Cash, that' is all that was said.
The conflict in testimony between Denaple and Cash
regarding Cash's alleged threats is difficult to resolve.
This is due in large part to the fact that the credibility of
both Denaple and Cash leaves much to be desired. Nei-
ther impressed me as telling the whole truth. Denaple
demonstrated both a' tendency to alter the timing of
events to bring critical events more closely together and
a tendency to exaggerate. Denaple, for example, stated in
a pretrial affidavit to an agent of the Board that she had
never been disciplined prior to September 1984. At the
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trial, Respondent introduced evidence of discipline prior
to that date . Denaple acknowledged the discipline, but
claimed that she had forgotten it. I found Denaple's
claim incredible, particularly since that discipline in-
volved an emotionally charged confrontation between
her and Cash during which Denaple knocked a heavy in-
dustrial lamp to the floor, shattering the bulb.
Even as Denaple testified , I was highly skeptical of
certain portions of her testimony , particularly that relat-
ed to these two alleged threats by Cash. Denaple's de-
scription of these two conversations is too brief and too
much alike . Neither description included that certain vi-
tality and spontaneity often characteristic of the truth. I
wondered at the time if Denaple had made up this testi-
mony or perhaps was claiming two conversations when
in fact there had been only one, that one being more
remote in time from her discharge than Denaple cared to
admit.
Cash's credibility was worse than that of Denaple.
Cash demonstrated a consistent reluctance or refusal to
directly answer questions put to her . Further, it was ap-
parent that a significant portion of her testimony was
based on assumptions and guesses about what might
have, or in her opinion what must have , happened as op-
posed to what she knew actually took place . When faced
with this faulty structure of her account of certain
events, Cash demonstrated belligerence and a willingness
to cling steadfastly to obvious absurdities as truth. Re-
spondent introduced numerous documents from Cash in
an attempt to establish that Denaple was a continuing be-
havior problem . Nevertheless , Denaple 's evaluations rate
her work-related behavior as "satisfactory." Cash boldly
asserted that someone who was disruptive to the work
force warranted a "satisfactory" rating. Further, the evi-
dence before me suggests rather strongly that Cash doc-
tored one of the exhibits in this case. One of the exhibits
introduced by Respondent through Cash contains a date
in the upper right hand corner. A copy of the same ex-
hibit given to counsel for Charging Party sometime
before the trial does not contain a date . Cash testified
that the writing on the exhibit was hers and that she
placed it on the exhibit at the time it was prepared. I find
Cash's claim an outright fabrication.
Between Denaple , who demonstrated some proclivity
for exaggeration , and Cash, who demonstrated an out-
right willingness to fabricate evidence , I credit Denaple,
at least in part. Although I cannot accept Denaple's ver-
sion of two nearly identical conversations with Cash
during which Cash twice issued the same threat to Dena-
ple, I do conclude that there was at least one such con-
frontation between Cash and Denaple . I conclude, as tes-
tified to by Denaple, that Cash asked Denaple if she was
involved with the Union. Denaple replied rather hostile-
ly that it was none of Cash 's business . I also credit Dena-
ple that Cash told Denaple if she was involved with the
Union it would hurt her work record. Finally, I con-
clude that it was in that same conversation that Cash
told Denaple she did not need to be involved with the
Union, that Respondent could straighten out any prob-
lems that existed . Denaple no doubt again repeated that
it was her business if 'she wanted to be involved with a
union . From Denaple 's testimony , I am sure that what-
ever discussion and confrontation took place between
Cash and Denaple, Cash ended it very abruptly, and
Denaple returned to work . I so find . I also find Cash's
threat that if Denaple was involved with the Union it
would hurt her work record to constitute a clear and un-
equivocal threat of reprisal against Denaple in violation
of Section 8(a)(1) of the Act.
D. Denaple 's Written Warning
On the morning of January 25, 1985 , supervisors Cash
and Cheek conducted a meeting of employees in the
wire harness department where Denaple worked. Cheek
told the group that they had been spending too much
time in the bathrooms , and had been playing their radios
too loud . Employees in the department are allowed to
listen to radios while they work , but the radios must be
equipped with earphones . Denaple spoke up at this meet-
ing in response to Cheek , telling him that she did not
think the stereo headphones were too loud so that
anyone else could hear them . Denaple also stated that
the wirecutting machine located in the department made
a lot more noise than did the radios. Denaple went on to
note that employees had been promised the wirecutting
machine would be taken out of their work area months
before, but it was still there. Cheek responded that the
wirecutting machines were company property.
Cash admitted that during this meeting Denaple was
speaking on behalf of all the employees when she made
the remarks she did to Cheek. It is clear that Denaple,
speaking out in this meeting as she did, perturbed Re-
spondent . In fact, the possibility of giving Denaple a
written warning for speaking out was discussed with
Production Manager Gawain Elliott shortly after ' the
meeting . In describing the events which led up to. Re-
spondent issuing a written warning to Denaple later that-
same day for laughing on the job , Elliott testified about
Denaple's remarks to Cheek in the morning meeting:
Because we had decided at that time, that nobody
overheard him and Kathy with this conversation
where she dissented a little bit about the radios.
And therefore, that didn't enter into anything on
our-on behalf with this disciplinary action, here
[concerning the laughing].
Later in the same day , Denaple was in the ladies' rest-
room when a joke was told. She came out of the rest-
room and walked back to her workbench. Denaple, still
laughing , sat down and began working . Cash testified
that although she was approximately 30 to 40 feet away
from Denaple speaking on the telephone , Denaple's
laughter interfered with her ability to hold a telephone
conversation. Cash directed Associate Supervisor Tim
Franklin to tell Denaple to be quiet. Franklin did so.
Denaple told Franklin she would stop laughing as soon
as she could. Franklin immediately went to production
Manager Elliott 's office. By the time Elliott came out
onto the work floor, Denaple had stopped laughing.
Shortly after this incident, Franklin and Cash met with
Elliott and Employee Relations Representative David
Magee in Elliott's office., Cash testified that these super-
visors discussed Denaple's past work record and her dis-
ROCKWELL CORP.
ruption of the work force by her excessive laughter. Ac-
cording to Cash, the group did not discuss Denaple's
confrontation with Cheek during} the meeting that morn-
ing. Elliott agreed with Cash, but admitted on cross-ex-
amination that Denaple's confrontation with Cheek was
discussed with Denaple at the time she was given the
written warning for excessive laughter.
Magee testified that he attended one meeting with El-
liott at which time they discussed both the laughing inci-
dent and Denaple's confrontation with Cheek. According
to Magee, he met again the following morning with Cash
and Elliott. They again discussed both Denaple's con-
frontation with Cheek and the laughing incident. Magee
then called Denaple into the meeting. Denaple was ques-
tioned about both the confrontation with Cheek in the
employee meeting and the laughing incident. According
to Magee, Denaple acknowledged the laughing incident.
In fact, Magee asserts that Denaple admitted, "Yes, I
guess I did use pretty poor judgment." I do not credit
Magee. Magee impressed me as purposely painting with
the broadest brush possible, filling. in details only .where
he thought it would help Respondent's position. Magee
struck me as being concerned exclusively with convinc-
ing the listener of his voracity,-with little regard for fac-
tual accuracy or substantive truth. I do not credit
Magee's testimony about the real reason for- issuing a
written warning to Denaple. Referring to, Denaple's con-
frontation with Cheek as well as the laughing incident,
Magee testified:
[W]e got to the written warning-well, in talking
to Kathy, and in helping [Cash, Franklin, and El-
liott] and advising them as to what to do, it really
didn't appear to me that the incident with Kathy,
with Barry Cheek talking about the earphones, and
all of that, really was so-outstanding. It was indica-
tive of the same behavior, but it did not justify a writ-
ten warning.
However, the incident involving the laughing, I
specifically; asked these guys, tell me, now, was her
laughing really disrupting people, and the whole bit.
And they went through the whole shooting match
in saying, yeah, you_ know, a number of 'people
there - at work-the same testimony that you've
heard before.
It was after hearing that-and, then, after talking
to Kathy about that very issue in our meeting [and
her admitting the laughing incident] . . . and it was
on that basis, coupled with -all the other incidents,
that I decided that I felt'that a written warning was
justified.
On January 28, 1985, Denaple was issued a written
warning for "allowing excessive laughing to disrupt
work group" on January 25.
Magee would ask me to believe Respondent consid-
ered an, employee's open confrontation with a supervisor
in an employee meeting to be "indicative of certain be-
havior" but "not so outstanding'' as to `warrant a written
warning while at the same time accepting the proposition
that a minor laughing incident was so significant as to
prompt that same warning. Cash testified that employees
59
are permitted to talk while performing work, but are not
permitted to disrupt the work force. The record is clear
that many employees, including members of manage-
ment, have laughed on the job without incident. Further,
the wire harness work area is far from being quiet. 'On
the' contrary, the wirecutting machine, which runs most
of the workday, is located in the area, producing such a
noise that it is necessary to speak loudly to other people
only 3 or 4 feet away. Further, throughout about 90 per-
cent of the workday, assemblers use heat guns in their
work which makes a noise similar to electric hair blow
dryers. Finally, most employees listen to radios with ear-
phones throughout'the workday . It is too much to be-
lieve that with these many distractions, the simple laugh-
ing incident with Denaple would warrant a written
warning. I conclude that the laughing incident simply
provided Respondent with an excuse, a smokescreen, to
issue the written warning to Denaple, when in fact the
real- incident which .precipitated the warning was D,ena-
ple's confrontation with Cheek that same morning during
the employee meeting. As Cash, acknowledged, Denaple
was speaking on behalf of all employees when she con-
fronted Cheek in that meeting, and I conclude that in
doing so Denaple ' was engaged in - concerted activity
which =is protected by the Act. Meyers Industries, 268
NLRB 493 (1984). Accordingly, 'I conclude that the
written warning issued to Denaple violated Section
8(a)(1) of the Act.
E. Denaple's Discharge
On February 1, 1985, Saed was promoted to manager
of employee relations . One of her first acts in this capac-
ity was to discharge six employees based on findings of
drug use derived in urinalysis tests. The tests had been
ordered and conducted prior to.Saed's promotion. When
evidence of drugs proved positive from these tests, Saed
was the one to effectuate the dismissal of the employees.
After the urinalysis tests had been taken, but before the
discharges were made, one of the six employees involved
approached Denaple and asked her whether there was
anything the Union could do to help him if he was fired.
Denaple replied that she would try to find out.
On the.morning of February 7, the six employees were
discharged. Shortly thereafter, Saed and Magee went to
the -various supervisors at Respondent's Norcross and
Duluth facilities to brief them about the discharges. Saed
testified:
We were having-we were going around talking
to supervisors, explaining that discharge. Because it
was a very unsettling thing for our plant.
I had taken the Duluth' buildings, the top two su-
pervisors, I was out talking with them. Dave had
gone down to talk to supervisors in the Norcross fa-
cilities.
Question [by Judge McLeod]: I take it, then, that
you expected some adverse reaction on the part of
employees?
THE WITNESS: We expected some concern, I
guess. It looked like all we did was do urinalysis
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tests, and let people go. And that was not the case,
but that's what it looked like.
Sometime around 9 or 9:30 a.m. on February 7, Denaple
spoke with employee Blake Gubelli, a friend of one of
the discharged employees, at the parts crib. Denaple
asked Gubelli if he had heard anything about the urinaly-
sis tests . Gubelli told Denaple that the six employees had
been discharged that morning. While Denaple was speak-
ing to Gubelli, Elliott approached them. Elliott told
Denaple she was already in enough trouble and she
should return to her work station. Elliott admits Denaple
protested that the six employees were discharged unfair-
ly. Denaple asked whether all Respondent's employees
would be given urinalysis tests.
At approximately 10 a.m., Denaple approached Super-
visor Cash and asked permission to leave work for the
day at 10:30 a.m.2 Denaple told Cash that she needed the
time off to go to a job interview and attend to some
other personal matters.3 Cash reminded Denaple that she
had missed a considerable amount of work and told Den-
aple she could not afford to take off that much time.
Cash then checked Denaple's attendance record and de-
termined that Denaple's accumulated time away from the
job had dropped from 74.5 hours to 50.5 hours.4 Dena-
ple testified that Cash agreed her attendance had im-
proved and gave Denaple permission to leave. Denaple
claimed she specifically asked Cash whether she would
be terminated for leaving and that Cash assured her she
would not. I credit Denaple only in part as described
below. Cash claimed she told Denaple that Denaple
"would at least be getting a written warning if she left."
(Emphasis added.) I do not credit Cash that she made
this statement to Denaple. Nor do I credit Denaple that
Cash actually gave Denaple permission to leave. I credit
Denaple in part, and I conclude that Denaple did ask
Cash if she would be fired for leaving. I also credit Den-
aple that Cash said she would not be fired. I conclude
that the matter was left hanging at that point, and neither
Denaple nor Cash made any attempt to be more specific.
Denaple then informed Cash that she was going to leave,
and did so.
Shortly after Denaple left, Supervisors Cash, Elliott,
and Magee met in Elliott's office to discuss the situation
and to decide what type of discipline to give Denaple.
Together, they considered the possibility of giving Dena-
ple a written warning or terminating Denaple. While this
meeting was going on, Magee telephoned Saed. It was
Saed who made the decision to terminate Denaple. Saed
2 Denaple had come to work 2 hours early that day because of sched-
uled overtime
a Denaple testified that she intended to go to the Union's office to dis-
cuss the discharges The record is clear, however, that Denaple never
told Respondent of her intention, and this itself played no part in her dis-
charge
4 Respondent maintains an attendance policy that when an employee
accumulates more than 40 hours' absence from work for any reason other
than vacation during the immediately preceding 12 months, the employee
is subject to possible discipline pursuant to Respondent's progressive dis-
ciplmary system This policy employs a 12-month revolving calendar in
which an absence is no longer counted in deternumng whether the total
exceeds 40 hours on the anniversary of that absence Absences in excess
of 40 hours do not result in automatic discipline. The reason for the ab-
sence is considered by Respondent when making that decision.
thereafter obtained the concurrence of her supervisor,
Ron Rice, director of human resources.
Denaple was discharged the following day, February
8, 1985.
F. Analysis and Conclusions Regarding the Discharge
Respondent asserts that it was Denaple's overall at-
tendance record and a history of disciplinary problems
related to disruptive behavior which led to her discharge
on February 8. Denaple was informed of her discharge
during a meeting on that day with Cash, Elliott, and
Magee. During that meeting, Denaple asked the reasons
for her discharge. Elliott replied, "Work related behavior
and attendance." Denaple asked Cash if she was being
discharged for leaving work early on February 7. Cash
did not reply. Elliott, however, responded that she was
not being discharged for leaving on February 7, but
rather because of her "overall attendance." When Dena-
ple asked about her work-related behavior, Magee threw
the personnel file kept by Cash on the table and stated
that Respondent had had enough. Particularly because of
the broad reasons asserted by Respondent for discharg-
ing Denaple, it is necessary to examine Respondent's po-
sition at some length.
Denaple began working for Respondent in November
1979 as an assembler in the wire harness area . During
1982 she was promoted to the position of generalist,
where she remained until her discharge in February
1985. A generalist is a leadperson who the parties agree
possesses no supervisory authority as defined in the Act.
A generalist, however, is responsible for leading the
work of a particular group of assemblers. The group is
assigned production quotas or targets. Generalists at-
tempt to see to it that these quotas are met. Throughout
the workday, they frequently discuss assembly problems
with individual employees as well as with various sup-
port personnel. The generalist coordinates work sched-
ules, sees to it that assemblers have needed parts, and ac-
tually obtains needed parts and assists in assembly where
necessary. Denaple performed all of these functions
during her tenure as a generalist. Brennice Cash was
Denaple's immediate supervisor throughout this period.
Respondent employs a five-step disciplinary procedure
which, on its face, "defines basic policy for employee
disciplinary situations." According to its terms, "with ap-
proval of the employee relations representative, this dis-
ciplinary procedure may be 'adjusted in accordance with
the severity of the violation." The five steps outlined in
this disciplinary procedure are informal counseling,
formal counseling, written warning, probation, and, ulti-
mately, termination. The first two steps of this five-step
procedure are defined as follows:
1. Inform the employee of the problem . Record
the date and topic on the Disciplinary Log Sheet
(Form 441 -A-21).
2. If the violation continues , conduct a formal
conversation with the employee . Inform the em-
ployee again of the problem and explain the Disci-
plinary Procedure.
ROCKWELL CORP. 61
Although it is not expressly required by the written dis-
ciplinary procedure , Rice testified that supervisors are
required to show employees the records of formal con-
versations . Rice testified:
Q. You don't-are employees supposed to be
shown these formal entries on the 441-A-21?
A. That transaction takes place between the su-
pervisor and the employee . As a general rule, we
do show it to them, yes.
Q. But you don 't-as a general rule , but you also
allow for exceptions-
A. Not typically, we do not.
Q. -where employees are not shown any of
these entries?
A. No, we typically do not.
Q. You typically do not, but that doesn 't answer
the question . Do you or don't you?
A. No, we do not.,
With regard to Respondent's assertion that Denaple's at-
tendance record was one of the two factors which led to
her discharge, I first note that during January, February,
and March 1984 Denaple was absent from work for sev-
eral days due to her own illness and illnesses in her
family which were abnormal and not of a recurring
nature. Those absences inflated her total ' cumulative
hours missed from work to an uncharacteristic high, and
throughout each calendar month of 1984 Denaple carried
a total, cumulative hours missed of approximately 65. In
October , November, and December 1984, the running
total was above 70 hours. When Denaple left work early
on February 7 1985 , however, several of those absences
no longer counted against Denaple because an absence is
not counted in determining the cumulative `hours after 1
year has passed from that date of absence . On February'
7, Denaple's cumulative hours missed totaled only 50.5
hours. This was no more, and in fact less , than Denaple
had carried throughout most of the months of 1984.
Even though Denaple 's attendance record was consider-
ably better in February than it had been just a few
months earlier, Respondent claims that Denaple 's attend-
ance record was one of the two reasons why it dis-
charged Denaple.
Respondent asserts as its second reason for discharging
Denaple a general and ongoing pattern of disruptive be-
havior. In analyzing this assertion , I first note there is no
evidence of any discipline against Denaple prior to Janu-
ary 1984. Rice testified that Denaple had engaged in dis-
ruptive behavior on a continuing basis for 2 to 3 years
prior to her discharge . Rice , however, was never person-
ally involved in any instance of such behavior. Saed tes-
tified that Denaple had been a good employee for the
first few years of her employment, but that she had been
a disciplinary problem ever since. On closer examination,
however, one notes that Saed did not assume her posi-
tion until February 1, 1985 , and her testimony is merely
her opinion based on general rumors . Elliott testified he
supervised Denaple during the time she held the position
of assembler. Elliott asserted that he disciplined Denaple
on several occasions, but had since discarded written en-
tries relating to that discipline . This testimony of Rice,
Saed , and Elliott is far too generalized to be of any pro-
bative value . Further, testimony regarding Denaple's al-
leged work record prior to the time she became a gener-
alist is both undocumented and of little consequence in
view of her promotion to the generalist position.
The first documented instance of any negative com-
ments about Denaple 's work appears in her evaluation
dated July 15, 1983 . 5 This evaluation contains the com-
ment , "Kathy needs to control unnecessary talking
during working hours . Has been discussed . Needs to re-
member to wear safety glasses." In spite of these com-
ments, Denaple was rated "good" in the category of de-
pendability and "satisfactory" in the category of work-
related behavior.
On January 9, 1984 , Denaple and Cash became em-
broiled in a heated discussion , after which Denaple re-
turned to her work station and pushed a lamp off her
table and onto the floor , causing the bulb to shatter.
Cash approached Denaple and asked Denaple if she had
pushed the lamp on purpose . Denaple admits she told
Cash she had, claiming she meant only that she pushed
the lamp on purpose , not that she meant for it to fall
onto the floor . I strongly suspect that in the heat of the
argument, that is not what Denaple meant at all, and in
fact she meant it exactly as Cash took it. Cash had a
"formal conversation" with Denaple , informing Denaple
that with any further outbursts, further disciplinary steps
might be skipped and result in her immediate termina-
tion.
In spite of this incident , Denaple , received an evalua-
tion dated January 23 , 1984, in which she was actually
rated higher by Cash in the area of "work-related behav-
ior" than she had been in the preceding evaluation. In
this later evaluation Denaple was rated as "satisfactory"
in the area of dependability and "good" in the area of
work-related behavior. The category of dependability in-
cluded ,the following remarks: "Kathy is showing an im-
provement in attendance ." The work-related behavior
category , did not contain any written remark , Denaple's
overall rating in that appraisal contained the following
comment : "Kathy's goal is to improve productivity,
reduce squawks,6 and control unnecessary talking in her
area." I do not take these remarks to refer to Denaple's
own conduct . In the area of "quantity," for example,
Denaple's own productivity is rated as "excellent. This
standard applies to those who "regularly exceed require-
ments, usually complete assignments ahead of schedule."
The comments referring to Denaple 's goals, therefore,
more appropriately address her function as a lead person
and refer to activities in her general work area. Dena-
ple's goal , therefore , was to attempt to get employees in
the assembler category in her work area to be more pro-
ductive and to reduce squawks. I have no reason to be-
lieve that the comment in this evaluation referring to her
need to "control unnecessary talking in her area" is any
5 Respondent has its supervisors conduct semiannual evaluations of
each employee . Supervisors prepare a written appraisal which is then
shown to and discussed with the employee. Employees are evaluated in
five areas : quantity, quality, job knowledge, dependability, and work-re-
lated behavior. In each category,' employees are rated on a scale of five
grades. outstanding , excellent, good, satisfactory, and unsatisfactory
6 A "squawk" is a technical term for a production error
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different. The comment does not so much refer to Dena-
ple herself being engaged in unnecessary talking as it
does to employees in her work area. This comment is
significant in two respects. First, it evidences that other
employees besides Denaple frequently spoke to one an-
other during the workday. Second, it evidences that
while Respondent would like its lead persons to control
unnecessary talking in their work areas, prior to the
advent of union activity this, was treated simply as a
"goal" by Respondent, and particularly by Cash. Similar
"goals" were written- as comments on Denaple's evalua-
tion even where she was rated as "excellent." Prior to
the advent of union activity, goals were simply that-
goals.
Denaple again received an evaluation from Cash on
August 8, 1984. In this evaluation, Denaple again was
rated "good" in the area of dependability, punctuality,
and attendance, in spite of the problems with her attend-
ance record discussed above. In the area of work-related
behavior, Denaple was rated "satisfactory." Attached to
the appraisal was a page containing the following com-
ments about Denaple's work-related behavior:
During recent weeks Kathy has experienced be-
havior and attitude problems that have been disrup-
tive to the work force and caused a significant
change in both herself and the rating in this catego-
ry.
Kathy has the ability to reverse this trend and
must be willing to do so. Failure to resolve this situ-
ation can only affect future performance reviews or
even employment.
Unfortunately, Cash did not elaborate on, or provide
any specifics regarding, the "behavior and attitude prob-
lems" referred to in this attachment to Denaple's apprais-
al. I note that the appraisal was written very soon after
the advent of union activity. I note too, however, that
notes kept by Cash describe two incidents in early June
1984, before the advent of union activity, during which
Denaple refused to perform certain work. I conclude
that it was these incidents in early June to which Cash
was referring.
Denaple denies that this page was attached to the ap-
praisal at the time it was shown to her. Although Cash
has already been shown to have altered one exhibit in
this proceeding in order to make it consistent with her
testimony, I conclude that the sheet attached to Dena-
ple's August evaluation was there at the time the evalua-
tion was shown to and discussed with Denaple. I draw
this conclusion in part because the evaluation itself refers
to the attachment on two separate occasions. I find
wholly incredible, however, Cash' s assertion that disrup-
tive behavior and attitude problems are consistent with
the "satisfactory" rating Cash gave to Denaple in the
area of work-related' behavior. That inconsistency lends
some ' credence to Denaple's claim that the attachment
was not with the evaluation when it was shown to her.
Nevertheless, I conclude otherwise for the reasons I
have stated. The inconsistency between the "satisfac-
tory" rating and the comments on the attachment leads
me to the conclusion that at the time of the appraisal in
August 1984, whatever disruptive behavior Denaple may
have been guilty of was considered by Cash as still being
relatively minor, not worthy of even a written repri-
mand.
From the time of this August 1984 evaluation to the
time of Denaple's discharge in February 1985, Cash doc-
umented five instances of alleged disciplinary action
against Denaple . These documents are in the form of in-
formal notes written by Cash to herself and then placed
in a personnel folder kept by Cash. The five incidents
occurred in August and September 1984, well after the
advent of 'union activity. With certain exceptions noted
below, I find it unnecessary to discuss these alleged inci-
dents in detail , for I find they had little to do with Dena-
ple's discharge. Cash was shown these notes one by one
and asked to describe the incidents. Cash frequently had
no independent recollection of the events. Cash de-
scribed several of them as "informal conversations" and
several as "formal conversations." None of them were
made on the form referred to in Respondent's discipli-
nary procedure. In spite of Rice's testimony,that supervi-
sors are absolutely required to show an employee a copy
of notes of formal conversations, Cash admitted both
with regard to the alleged formal conversations as well
as the informal conversations that she had not shown the
notes to Denaple. There is no indication whatever that
Denaple was told these alleged incidents were even con-
sidered official discipline. Denaple denies that several of
the incidents even took place. Although I do not credit
Denaple's denial that the events occurred, I do take
Denaple's testimony as a truthful denial that she has any,
recollection of those events whatsoever. Cash's limited
attempt to reconstruct even some of those events often
reflected guesswork and supposition. Cash's own inabil-
ity to recall the alleged incidents, coupled with the infor-
mality of the notes themselves and Denaple's inability to
recall the incidents leads me to the conclusion that these
incidents were never considered or treated as disci-
pline-either formal or informal. Instead, they are simply
notes which Cash chose to produce for future reference.
Cash's notes of a conversation with Denaple on Sep-
tember 25, 1984, are particularly troublesome. Cash's
notes are, in the form of a letter to Denaple in which
Cash rebuked Denaple for "excessive talking and behav-
ior." Nevertheless, Cash made no claim that she ever
showed this, document to Denaple. Nor did she testify
whether this document was intended to be informal dis-
cipline, formal discipline, or perhaps even a written
warning . I find it incredible that if the document, was
shown to Denaple and was considered to be a written
warning Cash would not have said so. Denaple denied
having seen this document before, and I credit that
denial. I am troubled by the fact that Cash was unable to
offer any specific facts regarding the incident which al-
legedly, precipitated this document being produced. Cash
seemed to offer this document almost as .an aside, saying,
"I guess she had did it again." Assuming its authenticity,
this document would appear to be very significant, par-
ticularly if it was in fact a written warning to Denaple.
The document concludes, "Be advised continued action
ROCKWELL CORP. 63
of this type on your part will lead to more serious steps
in the disciplinary procedure." The apparent significance
of this document on its face as contrasted with Cash's in-
ability to recall the facts surrounding it is particularly
troubling. Denaple testified to two conversations occur-
ring in October and November 1984 during which Cash
warned Denaple that involvement with the Union could
hurt her work record. I have found that there were not
two conversations like this, but only one. I strongly sus-
pect that Denaple's timing is equally erroneous, and that
in fact the conversation between Cash and Denaple
which led to the creation of Cash's notes dated Septem-
ber 25 and the conversation in which Cash warned Den-
aple against further involvement with the Union were
one and the same.
The evidence in this case strongly points toward a
conclusion that prior to the advent of -union activity,
Denaple's alleged "disruptive behavior," i.e., conversa-
tions with fellow employees and occasional arguments
with Cash, was considered by Respondent as merely a
minor irritation, not worthy of even a written reprimand.
Soon after the advent of union activity, Respondent, and
particularly Cash, began to take a different view of
things. The reason for Respondent's new approach was
aptly demonstrated by Cash's warning to Denaple that
getting involved with the Union would hurt Denaple's
work record, as well as by Respondent's written warning
to Denaple on January 28, 1985, which was precipitated
by Denaple's confrontation with Cheek in the employee'
meeting.
This leads me then to question the real cause of Dena-
ple's discharge on February 8. It must first be noted that
it was Saed, not Cash, who decided to discharge Dena--
ple. Saed began her new position on February 1. During
her testimony, Saed first claimed that in early February
as apart of "getting on board in my job" she reviewed
Denaple's personnel file. A few moments later, Saed al-
tered her testimony,, saying that Magee, not Saed, "did a
chronology of events" regarding Denaple in order to see
if Respondent was "doing the fair thing." A moment
later, however, Saed again claimed that she was familiar
with, a particular incident involving Denaple based on
"what I saw in the file." When counsel were finished
questioning the witness, I returned to that point with
Saed. My examination follows:
JUDGE McLEOD: I want to go back for a moment
to that period shortly after you took over. And you
asked the professionals under you to tell you what
was going on.
THE WITNESS: Uh huh (affirmative).
JUDGE McLEOD: When you did that, and Kathy
Denaple's name came to your attention, what form
was that in? Was that in the form of an oral report,
or a written report, or what?
THE WITNESS: As I recall, it was probably an
oral report at that point.
JUDGE McLEOD: All right. What, if anything,
were you told about Kathy Denaple at that point?
THE WITNESS: I was told that we had been going
through a series of counseling conversations with
Kathy. It was a variety of topics. It never seemed
to be one focused issue. We would seem to get one
thing resolved, and kind of put aside, and something
else would kind of pop out.
JUDGE McLEOD: Do you remember who told
you that?
THE WITNESS: Dave Magee.
JUDGE McLEOD: Is he one of the three profes-
sionals who worked for you?
THE WITNESS: Yes, sir.
JUDGE McLEOD: Were you told anything else
about Ms. Denaple at that time?
THE WITNESS: No, Sir.
JUDGE McLEOD: What, if anything, did you do
as a result of that?
THE WITNESS: I did nothing.
JUDGE McLEOD: Did you review the personnel
file?
THE WITNESS: No. But at that particular point in
time, I was really trying to handle these people that
had been discharged, or were going to be dis-
charged for illegal narcotics, that's really what I
was paying attention to those particular days.
JUDGE McLEOD: Between the time that you
asked Mr. Magee about things that were in
progress, and Ms. Denaple's name came to your at-
tention, and the time that you later made the deci-
sion to discharge Ms. Denaple, did you ever have
occasion to review her personnel file?
THE WITNESS: No, sir.
Despite her claims to the contrary, it is clear that on
February 7, 1984, when Saed made the decision to dis-
charge Denaple, Saed had not reviewed Denaple's per-
sonnel file and knew no specifics about any instance of
alleged behavior problems by Denaple. All Saed knew
was what she had been told by Magee, that on several
occasions Denaple had received informal counselling as a
result of alleged disruptive behavior with other employ-
ees. I do not credit Saed's conflicting testimony that she
was aware of certain specific instances of such conduct
at the time she made the decision to discharge Denaple
because I find such claims to be inconsistent with her an-
swers to my questions quoted above.
The final question then focuses on what conduct Den-
aple engaged in on February 7, or what conduct Saed
believed Denaple had engaged in on that day, which
caused Saed to decide to discharge Denaple. The answer
to that question is found in Saed's' own testimony. Dena-
ple, it will be recalled, was discovered by Elliott while
talking to employee Gubelli at the parts crib about the
discharge of the six other employees for failing to pass a
urinalysis test. When Elliott confronted Denaple, Elliott
warned Denaple that she was already in enough trouble
as it was and that she should return to her, work station.
Elliott admits that Denaplc protested that the six dis-
charges were unfair and discussed whether all Rockwell
employees would be given urinalysis tests. When Saed
was asked to relate her understanding of what happened
on February 7 which contributed to her decision to dis-
charge Denaple, Saed testified
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My understanding was that Kathy had left her work
station at some point in time in the morning, I don't
know exactly when . It evidently had something to do
with being upset over the terminations for use of illegal
narcotics on our property, and she had told her super-
visor Brennice [Cash] that she had to leave because
she was going for a job interview . [Emphasis
added.]
When I asked Saed to be more specific about the conver-
sation she had with Magee which caused Saed to make
the decision to discharge Denaple, Saed described that
conversation as follows:
He [Magee] said , I am down here in Gawain [El-
liott 's] office. We have been reviewing Kathy Dena-
ple. That she had been disruptive in the morning over
the discharges, and she had subsequently left work,
saying that she was going for a job interview. She
had left in the middle of the shift.
I said what-well, let's see, what did I say. I said,
what do you think we ought to do about it. And he
said , well, we're sitting here thinking about it, also,
what to do about it. And I said, I think we ought to
discharge her. And he said , well, I agree..
I said, let me run it by Ron [Rice], to make sure
that he approves this with us, and if he does, and all
of us agree, then that's what we'll do. [Emphasis
added.]
Saed 's real reason for discharging Denaple is thus re-
vealed. Simply put, Respondent was very concerned that
the discharge of the six employees on the morning of
February 7 would not be well received by other employ-
ees. This is well established by Saed's own testimony.
Saed and Magee both went to great lengths to meet with
supervisors to explain the discharges to them and prepare
them for questions and comments from other employees.
Denaple was the one employee who unabashedly pro-
tested Respondent 's discharge of the other six employees.
She did so to Elliott in front of another employee. It is
this conduct by which Denaple "had been disruptive in
the morning over the discharges" and which caused her
to be discharged. None of the other reasons advanced by
Respondent for Denaple's discharge played any real part
in that decision. Saed actually knew very little about
Denaple's work record on February 7. What Saed knew
was that Denaple had allegedly disrupted employees in
the past and did so on February 7 by protesting the dis-
charge of the six employees that morning. It was because
of Respondent's concern over just such a protest that it
discharged Denaple in such a hasty manner, bypassing as
it did all other steps in the disciplinary procedure. As
Saed admits, only one other employee had ever been dis-
charged by Respondent bypassing other steps in the dis-
ciplinary procedure. On this one other occasion, the em-
ployee in, fact left and never returned, and there was
therefore no reason or opportunity to make use of other
steps in the disciplinary procedure.
Pursuant to, the Board's decision in Wright Line, 251
NLRB 1083 (1980), in order to determine whether a dis-
charge constitutes an unfair labor practice under Section
8(a)(1) and (3) of the Act, one must apply a two-step
analysis. First, it is the burden of the General Counsel to
set forth a prima facie case supporting the conclusion
that protected conduct was a "motivating factor" behind
the employer's action. Once this burden has been met,
the burden shifts to the employer to prove that the same
decision would have been made in the absence of the
protected conduct. Respondent claims that Denaple's dis-
charge had nothing to do with her support for the
Union, and indeed that it believed union activity had
ceased at its facility in August 1984. I do not credit this
assertion. Nevertheless, I conclude that even if this were
true, the conduct for which Denaple was discharged on
February 7 was protected concerted activity within the
meaning of the Act, as was her conduct which led to the
written warning on January 25, 1985, as discussed above.
As the Board stated in Meyers Industries, 268 NLRB at
497: "In general, to find an employee's activities to be
`concerted', we shall require that it be engaged in with
or on the authority of other employees, and not solely by
and on behalf of the employee himself."
Denaple had been asked for assistance by one of the
six employees facing impending discharge. Her conversa-
tion with fellow workers and with management about
the discharges was not only on behalf of other employ-
ees, but was in fact authorized by at least one of them. I
conclude that Denaple's conduct on February 7 consti-
tuted protected concerted activity encompassed by even
the narrowest reading of the Board's decision in Meyers
Industries. Respondent's characterization of Denaple's
conduct on February 7 as "disruptive behavior" is noth-
ing more than a euphemism for,Denaple's concerted ac-
tivity in talking to other employees about the six dis-
charges which had occurred that morning. Accordingly,
I find that counsel for the General Counsel has estab-
lished a prima facie case required by Wright Line, supra.
For the following reasons, I conclude that Respondent
has failed to meet its burden of establishing that the same
decision would have been made even in the absence of
the protected conduct.
Referring to Denaple 's conversations with fellow em-
ployees on February' 7 about the discharges of the other
six, Respondent argues in its brief that "while her job
sometimes requires her to go to other locations, she
spent far too much time away from her station on that
day." Elsewhere, Respondent argues that Denaple
"chose to ignore her job duties." Respondent argues that
Denaple's activities were thus not protected. Respond-
ent, however, offered no evidence to establish that Dena-
ple's time spent away from her normal work area on
February 7 was not in conjunction with her normal
duties. As noted, Respondent concedes that Denaple's
job sometimes requires her to go to other locations. One
of these locations is the parts crib where Elliott discov-
ered Denaple talking to Gubelli. Elliott testified that he
had gone to the parts crib at the request of two supervi-
sors who had complained that Denaple had been disrupt-
ing other employees. Insofar as it is intended to prove
what Denaple was doing at the parts crib, Elliott's testi-
mony is the rankest hearsay. , Respondent could easily
have produced one or both of the two supervisors re-
ROCKWELL CORP
ferred to by Elliott, but it made no attempt to do so. I
credit Denaple that her trips away from her normal
work area on February 7 were in connection with her
responsibilities as a lead person. There is no reason what-
ever to believe that her conversations with Gubelli and
other employees on that day were not simply casual con-
versations which arose in conjunction with her normal
duties. Respondent has altogether failed to prove that on
February 7 Denaple in fact disrupted the work of other
employees. I therefore find that Respondent has failed to
carry its burden under Wright Line., Accordingly, I find
that Denaple's discharge on February 8, 1985, was in
violation of Section 8(a)(1) of the Act.''
CONCLUSIONS OF LAW
1. Respondent Rockwell International Corp., is an -em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Communications Workers of America, Local 3263,
is a labor organization within the meaning of Section
2(5) of the Act.
3. About September 25; 1984, Respondent, acting
through Supervisor Brennice Cash, threatened employee
Kathy Denaple that if Denaple was involved with the
Union it would hurt her work record, and Respondent
thereby violated Section 8(a)(1) of the Act.
4. About January 28, 1985, Respondent issued a writ-
ten warning to employee Kathy Denaple because of pro-
tected concerted activity engaged in by her, and Re-
spondent thereby violated Section 8(a)(1) of the Act.
5. About February 8, 1985 , Respondent discharged
employee Kathy Denaple because of protected concerted
activity engaged in by her, and Respondent thereby vio-
lated Section 8(a)(1) of the Act.
6. Respondent did not threaten its employees that it
would know which employees had signed authorization
cards on behalf of the Union nor unlawfully solicit and
provide its employees with assistance to withdraw their
authorization cards from the Union, and those allegations
of the complaint shall be dismissed.
7. The unfair labor practices which Respondent has
been found to have engaged in, as described above, have
a close, intimate, and substantial relation 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.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
7 In view of my finding that Denaple's discharge violated Sec 8(a)(1)
of the Act, I find it unnecessary to consider whether it also violated Sec
8(a)(3) as the remedy would not be affected
65
On the foregoing findings of fact and conclusions of
law and pursuant to Section 10(c) of the Act, I, issue the
following recommended8
ORDER
The Respondent, Rockwell International Corp., Nor-
cross, Georgia, its officers, ' agents, 'successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees that if they engage in ac-
tivities on behalf of, or support, Communications Work-
ers of America, Local 3263, it will hurt their work
record.
(b) Issuing written warnings to, and discharging, em-
ployees because they engage in concerted activities
which are protected by the Act.,'
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
Z. Take the following affirmative action necessary to
effectuate-the purposes and policies of the Act.
(a) Offer Kathy Denaple immediate and full reinstate-
ment to her former position or, if that position no longer
exists, to a -substantially equivalent position without prej-
udice to her seniority and other rights and privileges pre-
viously enjoyed.
(b) Make whole Kathy Denaple for any loss of earn-
ings or benefits she may have suffered by reason of the
discrimination against her by payment to her of a sum of
money equal to the amount she normally would have
earned from the date of said discrimination to the date of
Respondent's offer of reinstatement, less net interim earn-
ings, with backpay to be computed in the manner pre-
scribed in F W. Woolworth Co., 90 NLRB 289 (1950),
with interest to be computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977); see generally
Isis Plumbing Co., 138 NLRB 716 (1962).
(c) Remove from its files the written warning issued to
Kathy Denaple dated January 28, 1985, as well as any
reference to the discharge of Kathy Denaple, and notify
her in writing that this has been done and that of the un-
lawful warning and discharge will not be used against
her in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Norcross and Duluth, Georgia, facilities
copies of the attached notice marked "Appendix."9
8 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
9 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 "
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of notices , on forms provided by the Regional
Director for Region 10, after being signed by Respond-
ent's representative , shall be posted by it immediately
upon receipt and be maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted . Reasonable steps
shall be taken by Respondent to ensure that the notices
are not altered, defaced , or covered by any other materi-
al.
(f) 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 ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees that if they engage
in activities on behalf of, or support, Communications
Workers of America, Local 3263, it will hurt their work
record.
WE WILL NOT issue written warnings to,,or discharge,
employees because they engage in concerted activities
which are protected by the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Kathy Denaple immediate and full re-
instatement to her former position or, if that position no
longer exists , to a substantially equivalent position, with-
out prejudice to her seniority and other rights and privi-
leges previously enjoyed.
WE WILL make whole Kathy Denaple for any loss of
earnings or benefits she may have suffered by reason of
the discrimination against her by paying her a sum of
money equal to the amount she normally would have
earned from -the date of her discharge to the date of the
offer of reinstatement , with appropriate interest.
WE WILL remove from our files the written warning
to Kathy Denaple dated January 28, 1985 , as well as any
reference to the discharge of Kathy Denaple, and notify
her in writing that this has been done and that of the un-
lawful warning and discharge will not be used against
her in any way.
ROCKWELL INTERNATIONAL CORP.