Stoody Co.

National Labor Relations Board - Board Decisions

Nov 19, 1993

312 N.L.R.B. 1175 (N.L.R.B. 1993)

1175
312 NLRB No. 197
STOODY CO.
1 On June 21, 1993, Administrative Law Judge Michael O. Miller
issued the attached decision. The Respondent filed exceptions and a
brief and the General Counsel filed a cross-exception and an answer-
ing brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 The judge’s recommended Order and notice inadvertently failed
to include an affirmative provision requiring the Respondent to re-
scind from its employee handbook its unlawful rule prohibiting em-
ployees from counseling others to engage in a slowdown or work
stoppage. We have modified the recommended Order and notice to
include such a provision.
Stoody Company, Division of Thermadyne, Inc. and
International Brotherhood of Electrical Work-
ers, Local Union 369, AFL–CIO. Case 26–CA–
15025
November 19, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the issue of whether the Respondent violated
Section 8(a)(3) of the Act by discharging employee
Donald Burch and violated Section 8(a)(1) of the Act
by suggesting that expressions of dissatisfaction with
working conditions were inconsistent with continued
employment.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,2 and conclusions and to adopt the rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Stoody Company, Division
of Thermadyne, Inc., Bowling Green, Kentucky, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a) and
reletter subsequent paragraphs.
‘‘(a) Rescind from its employee handbook its rule
prohibiting employees from counseling other employ-
ees to engage in a slowdown or work stoppage.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with discipline
and discharge by prohibiting them from counseling one
another about work stoppages or by suggesting that ex-
pressions of dissatisfaction with working conditions are
inconsistent with continued employment.
WE WILL NOT discharge or otherwise discriminate
against employees because they support International
Brotherhood of Electrical Workers, Local 369, AFL–
CIO or any other union or engage in union or other
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL rescind from our employee handbook our
rule prohibiting employees from counseling other em-
ployees to engage in a slowdown or work stoppage.
WE WILL offer Donald Burch immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify Donald Burch that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
STOODY COMPANY, DIVISION OF
THERMADYNE, INC.
Jane Vandeventer, Esq., for the General Counsel.
Jerry Kronenberg, Esq. (McBride, Baker & Coles), for the
Respondent.
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 At hearing, the General Counsel’s motion to amend the com-
plaint to add two 8(a)(1) allegations was granted over Respondent’s
objection. Respondent has moved that I reconsider that ruling. Not-
ing that the first amendment presents a purely legal issue, with no
facts in dispute, I maintain my ruling with respect to it. The General
Counsel has moved to withdraw the second amendment, dealing with
the ‘‘no-access’’ rule, inasmuch as that issue will be litigated in an-
other complaint. The motion to withdraw that allegation is granted.
For the reasons stated infra, I deny Respondent’s motion to supple-
ment the record with respect to the status and whereabouts of Roy
Young. 2 All dates are 1992 unless otherwise stated.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Nashville, Tennessee, on January 14 and
15, 1993, based on an unfair labor practice charge filed on
April 26, 1992, as amended on January 14, 1993, by Inter-
national Brotherhood of Electrical Workers, Local Union
369, AFL–CIO (Local 369 or the Union) and a complaint
issued by the Regional Director for Region 26 of the Na-
tional Labor Relations Board (the Board) on May 22, 1992,
as amended at hearing. The complaint alleges that Stoody
Company, Division of Thermadyne, Inc. (Respondent or the
Employer) interfered with, restrained, and coerced employees
in the exercise of their statutory rights and discharged an em-
ployee because he had engaged in union and other protected
concerted activities, in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act). Respondent’s
timely filed answer denies the commission of any unfair
labor practices.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS; THE UNION’S LABOR
ORGANIZATION STATUS; AND PRELIMINARY
CONCLUSIONS OF LAW
Respondent, a corporation with an office and plant in
Bowling Green, Kentucky, is engaged in the manufacture
and sale of welding products and related materials. In the
course and conduct of its business operations during the 12-
month period ending April 30, 1992, it sold and shipped
goods valued in excess of $50,000 from its Bowling Green,
Kentucky facility directly to points located outside the State
of Kentucky and purchased and received goods valued in ex-
cess of $50,000 directly from points located outside that
State. The Respondent admits and I find and conclude that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that Local 369 is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Bowling Green plant began production in July 1991.
Prior to that time, the Stoody plant had been located in Cali-
fornia. Donald Burch was part of the initial crew of four or
five maintenance employees hired in May of that year and
sent to California to dismantle and move machinery from the
old to the new location. Also in that crew was Larry
Woolbright, Burch’s foreman until shortly before his dis-
charge.
Respondent has no collective-bargaining agreements and
does not recognize Local 369 as the representative of its em-
ployees. Burch, a journeyman wireman, is a member of
Local 369. Before he was hired, Burch had informed his
business agent, Terry Luckett, that he was going for an inter-
view and received clearance from the Union to accept a non-
union position. He received no compensation from the Union
for his organizational activities, discussed below.
B. Union Activity
Burch did not keep his union affiliation secret. His ward-
robe included several T-shirts with the ‘‘Local 369 IBEW’’
logo on the back and ‘‘IBEW’’ on the front. Burch wore
those shirts once or twice a week from the start of his em-
ployment. The Union’s logo was visible even when worn
with bib overalls. Burch also had a plastic coffee mug which
bore the IBEW logo; he carried that mug in to the plant on
a daily basis and kept it on the top of his multidrawered
wheeled tool box as he moved through the plant.
Burch contacted Luckett in January 19922 and discussed
organizing Respondent’s employees. A meeting was set for
February 9 and he passed word of that meeting to his co-
workers. Luckett sent out several organizational letters to the
Stoody employees, none of which identified Burch as being
connected with the campaign, and Burch began to distribute
union authorization cards. The card which he signed is dated
February 12.
C. Company Knowledge and Response
The Employer quickly learned of the union campaign. On
February 18, Edward Aqua, vice president and general oper-
ations manager, issued a ‘‘Policy Statement’’ which was to
become part of a newly updated employee handbook. In ask-
ing that it be read carefully, Aqua stressed that ‘‘It is one
of the most important documents you will ever receive at
Stoody Company.’’ That policy, entitled ‘‘About Unions,’’
stated that Stoody was a ‘‘union free Company’’ which pos-
sessed a ‘‘sincere belief that a union would not benefit the
employees.’’ It went on to state that it was Stoody’s ‘‘inten-
tion to prevent any union from interfering with the present
open relationship that exists between our employees and
management by every proper and legal means available.’’ In
language common to such statements, it referred to the
Union as an unnecessary third party, interfering with the em-
ployees’ ‘‘privilege to speak and act on your own behalf,’’
burdening the employees with union dues and with the po-
tentiality of strikes. The statement concluded: ‘‘Invest in
your future security, and that of your family, by protecting
your individual freedom and supporting the policy of positive
and open management without third party union inter-
ference.’’
Aqua followed the issuance of the ‘‘Policy Statement’’
with a letter, dated February 21. Acknowledging that there
1177STOODY CO.
3 Evidence of the alleged coercion was not relevant to this hearing
and none was proffered.
4 Of all the foregoing, this remark is the only one contended to
be in violation of Sec. 8(a)(1).
5 Woolbright, no longer employed by Stoody, did not testify.
Hugelmaier testified along the lines described above. Spencer,
Schaum, and Davenport each testified without confirming or denying
the remarks and questions attributed to them. The uncontradicted tes-
timony of Burch and Richards was credibly offered.
was union activity among the Stoody employees, he reiter-
ated much of what had been said in the policy statement, in-
cluding the assertion that Stoody would ‘‘do everything with-
in our legal means to remain a union free operation.’’ Aqua
wrote that some employees had been approached to sign au-
thorization cards within the past couple of weeks. He also as-
serted that an employee had been coerced to sign a card3 and
invited employees to contact management if they felt that
‘‘they [had] encounter[ed] any threatening situation.’’
The General Counsel does not contend, and I do not find,
that either the policy statement or Aqua’s letter contravene
Section 8(a)(1) of the Act.
Even before the current campaign began, there was con-
cern about union activity. In what he believed was Septem-
ber or October 1991, Brad Richards, maintenance specialist,
was told by Maintenance Department Supervisor Woolbright
that ‘‘they [had] found some union literature in the front of-
fice.’’ Woolbright instructed Richards, ‘‘I need you to lay
low . . . they think you may be a union advocate since you
have access to the plant.’’ Richards denied any involvement
with the literature which had been found.
In early 1992, Richards was stopped by Judy Schaum,
human resources department administrative assistant. She
asked him to step into the office and asked him what was
going on with the Union. Richards told her that the employ-
ees were talking union because they were unhappy and dis-
satisfied with things as they were; there was a feeling, he
told Schaum, that they were not being treated fairly.
Shortly after the union meeting, Burch had one or two
conversations with Dale Hugelmaier, second shift coiling de-
partment supervisor. In those conversations, Burch revealed
his union background and his support for the Union’s cam-
paign; Hugelmaier voiced his personal opposition to unions.
In one, which occurred as Hugelmaier was leaving a man-
agement meeting about unions, Hugelmaier voiced his belief
that unions were not good for employers but benefitted em-
ployees who were troubled or did not want to work.
Hugelmaier denied that he ever related his conversations
with Burch to other members of management until after
Burch was discharged. While there is no evidence to directly
contradict this claim, it is difficult to believe that he would
not have spoken up given management’s outspoken opposi-
tion to unionism and the concern for who might be involved
in union activity, as indicated by both Woolbright’s and
Schaum’s conversations with Richards and Davenport’s simi-
lar conversation with him, discussed infra.
Burch also revealed his union sympathies to his own su-
pervisor, Larry Woolbright, in two conversations occurring in
late February. In the first, Woolbright called him into the of-
fice. He asked Burch how things were going and whether
Burch thought there was improvement in the plant.
Woolbright then asked, ‘‘What [Burch] thought about the
Union.’’ Burch replied that he thought it was a ‘‘real good
idea.’’ In a subsequent conversation directed at all of the
maintenance employees, Woolbright stated that he had once
belonged to a union and was now opposed to them. Burch
asked what union he had been a member of and Woolbright
stated ‘‘AFL–CIO.’’
In late February or early March, Renae Spencer, the per-
sonnel manager, approached Burch while he was working.
She asked him how things were going, whether he was hav-
ing problems with Woolbright and what he thought was
wrong with people on the floor. He told her of employee
concerns about the loss of sick days, pay cuts in fabrication,
and their lack of input in the setting of rules and regulations,
which they felt were being dictated to them. Spencer re-
sponded, ‘‘If we were going to be so nitpicking, maybe this
wasn’t the place for us.’’4
After Burch was discharged (discussed infra), Dennis Dav-
enport, who had succeeded Woolbright as maintenance su-
pervisor, spoke with Richards. Davenport told Richards that
‘‘the people up front are really scared.’’ Richards asked why
and Davenport said, ‘‘They think you are a union advocate
. . . they think somebody got a mailing list out from up in
the front office.’’ As he had done earlier in speaking with
Woolbright, Richards disavowed any involvement and said
that he did not know why he would be suspected. Davenport
said that he had told management that he thought their sus-
picions were misplaced. However, he instructed Richards to
‘‘lay low, keep a low profile,’’ remaining ‘‘out of sight, out
of mind.’’
None of the conversations described above were contra-
dicted by any of Respondent’s witnesses.5
Spencer denied having learned that Burch was ‘‘actively
involved’’ or ‘‘involved at all’’ on behalf of Local 369 ‘‘in
its campaign’’ among the Stoody employees until she was
notified of the unfair labor practice charge. She further de-
nied that she and Hugelmaier had discussed the latter’s
union-related conversations with Burch. Neither denial rises
to the level of a claim that she was unaware of Burch’s af-
filiation with that union or of his affinity for the Union and
his support of its campaign. Given that Burch openly dis-
played his affiliation with Local 369, wearing a T-shirt and
carrying a cup, both bearing its logo, openly acknowledged
his support for the campaign in discussions with several su-
pervisors, and frankly told Spencer what was bothering the
employees when she confronted him, I am compelled to find
that management, on all levels, was aware of Burch’s union
membership, affiliation and sympathies. In view of that
knowledge, Spencer’s denial of actual knowledge ‘‘that he
was actively involved . . . or involved at all’’ in the IBEW’s
campaign, even if true, is largely irrelevant. I am compelled
to conclude that Respondent’s management, including Spen-
cer, at least suspected his involvement, as it suspected that
Richards was involved.
D. Stoody Rules
Stoody’s employee handbook was distributed in March
1992. It contained the policy statement on unions, as de-
scribed above. It also included, under ‘‘Involuntary Termi-
nation,’’ the following:
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The General Counsel’s complaint, as amended, alleges that this
rule, prohibiting employees from counseling others to engage in a
work stoppage, violates Sec. 8(a(1).
7 Burch had been asked to stay and assist Davenport.
Because of the seriousness of dismissal for unsatisfac-
tory job performance or attendance, the company fol-
lows a standard progressive procedure in dealing with
such problems. This procedure includes counseling, let-
ters of warning, and suspension. . . . While the com-
pany wants to provide every opportunity to correct per-
formance or attendance problems, it cannot continue in-
definitely to employ a person whose performance or at-
tendance is less than satisfactory.
Whenever appropriate, employees will be given an op-
portunity to improve their deficiencies before termi-
nation. However, because of the seriousness of some
actions, immediate dismissal may be justified. These
actions include, but are not limited to, the following:
A. Safety and Security
1. Creating unsafe conditions, commiting an un-
safe act or violating a safety practice or rule.
B. Attendance
2. Being absent or tardy excessively.
C. Job Performance
1. Deliberately restricting output or counseling
other employees to engage in a slowdown or work
stoppage.6
E. Personal Conduct
1. Insubordination, refusal to . . . follow instruc-
tions issued by management.
E. Burch’s Discharge
1. The discharge interview
On April 10, after the others in his department were sent
home, Davenport told Burch to put his tools away and sent
him to the front office.7 There, he was confronted by Renae
Spencer, director of human resources, and Chet Young, di-
rector of manufacturing, who told him that his services were
no longer necessary. He protested, ‘‘This is crazy!’’ Young
told him that he ‘‘was not Stoody material’’ and ‘‘had a bad
attitude’’ and began to refer to some work on a crane motor.
He also referred to the fact that Burch had taken a cup of
coffee into the plant that morning. Burch repeated that the
Employer’s actions were ‘‘bogus’’ and ‘‘crazy.’’ He was
given a personnel activity notice which stated, as the reasons
for the discharge, ‘‘Unsatisfactory work performance, attend-
ance, and attitude.’’
At the time of his discharge, Burch’s personnel file con-
tained no warnings, either verbal or written. He had not been
suspended for any violations of the Employer’s code of con-
duct. Other employees had received warnings, although only
two had received warnings from Woolbright. Those warnings
were given to maintenance employees Becky Woods and
Patrick Helmon for poor attendance. Burch was at the first
step in the Employer’s progressive discipline system.
Spencer claimed that she and Young had first discussed
Burch’s continued employment on April 8. That discussion,
she testified, was occasioned by a conversation with Judy
Schaum, her administrative assistant, concerning Burch’s
abilities, discussed infra.
Spencer also claimed that Davenport had reported to her
that Burch had persisted in bringing his coffee in to the
maintenance area on both April 9 and 10, notwithstanding
his April 8 instructions that the employees should not bring
food or drink into the plant. Further, Spencer claimed Young
had received information from Ray Renken, the production
manager, of Burch’s refusal to wear safety glasses notwith-
standing continued admonitions. Finally, she claimed she
looked at his attendance record on April 10 and found that
his was significantly worse than most employees.
The decision to terminate Burch, Spencer claimed, was
made on the afternoon of April 10, in a second meeting held
that day with respect to him, and allegedly was based on his
poor attendance, unsatisfactory work performance, insubor-
dination and refusal to comply with safety rules. Before he
was discharged, Stoody’s management consulted with the
parent corporation’s headquarters in St. Louis.
2. Coffee drinking
Burch was an inveterate coffee drinker. From the start of
his employment, it was his practice to bring a mug of coffee
from home when he came to work. He would drink that cof-
fee in the maintenance area during the morning meeting, tak-
ing that cup with him as he moved through the plant during
the day. He would continue to drink coffee, procured from
the breakroom, as he worked in the plant. Burch was not
alone in this practice. It is uncontradicted that both employ-
ees and supervisors consumed food and drink in the plant
prior to April 8. Coffeemakers were maintained in the
shipping/receiving and packaging departments. There was a
table in the shipping department where employees would eat.
Pizzas were regularly brought into the shipping department
by the trucking firm servicing Stoody.
Respondent contended that it had a longstanding rule pro-
hibiting food and drink in the plant area because of the pres-
ence of many carcinogenic and toxic chemicals used in the
manufacturing process. Those chemicals, it was claimed, be-
came airborne when the containers were opened and they
were mixed for use. Once in the atmosphere, they posed a
risk to those who might ingest them, as by eating or drinking
in the plant. The California plant had posted signs prohibit-
ing eating or drinking in the plant area and there may have
been a reference to the rule in the brief orientation which
Burch and the other maintenance employees attended while
they were in California.
There were, however, no such signs posted in the Bowling
Green plant and no enforcement of any rule prohibiting food
and beverages in the plant area at that plant before April 8.
Respondent never posted advisories warning employees to
avoid ingesting these chemicals, either in their food, by
washing hands before eating, by avoiding hand contact with
eyes, nose, or mouth, or by the wearing of masks. Masks
were only worn in limited areas of the plant when chemicals
were being poured or mixed.
When Stoody issued its employee handbook in March, it
contained the following safety rule: ‘‘Do not eat, drink or
carry food or beverages outside the designated break areas.’’
The rationale for that rule was not given. All employees, in-
cluding Burch, received a copy of the handbook.
1179STOODY CO.
8 I have relied on the credibly offered testimony of Burch, noting
that it is, in the main, consistent with Davenport’s testimony. I also
note that Davenport did not expressly dispute Burch’s assertion that
he told the employees to keep their coffee ‘‘low’’ if they had to
drink it.
9 At least one employee claimed to have seen Burch drinking cof-
fee in the plant on April 8 and 9. Those alleged instances were nei-
ther observed by nor reported to management.
10 According to Burch, believing that the rule did not apply to the
physically separated maintenance area, he explained that he did not
think the rule applied to the first cup in the morning. Davenport said
that it did. Davenport denied that Burch had offered any explanation
or apology. I credit Burch’s recollection.
11 That absentee rate was calculated for the entire year of 1992.
It had not been calculated when Burch was discharged.
Davenport called a meeting of the maintenance employees
on the morning of April 8. He told them that management
was ‘‘cracking down’’ on violations of the food and drink
regulations, that while those regulations had not been en-
forced in the past, enforcement was going to begin. Burch
pointed out that a lot of them drank coffee in the plant and
asked how strict that enforcement was going to be. Dav-
enport replied that the production employees were jealous
and had complained about maintenance employees carrying
coffee with them while they were not supposed to have it at
their machines. Davenport told them, ‘‘If you have to drink
a cup of coffee, keep it low.’’ Burch then questioned what
the penalty would be for violating this rule. He was told that
it was a rule, like speed restrictions on the highway, and if
he was caught, there would be consequences, like a ticket.8
Burch and a number of the other employees at this meet-
ing were drinking coffee while Davenport was talking. He
did not bring coffee into the production areas on that day al-
though he did keep his mug on the top of his toolbox
throughout the day, as he had always done.
On April 9, Burch brought his usual cup of coffee in to
work, drinking it in the break area before work and carrying
it into the maintenance area at the start of his shift. Dav-
enport observed him but said nothing.9
On April 10, Burch again entered the maintenance area
with his cup of coffee. He testified, without contradiction,
that at least two others did the same. This time, Davenport
told Burch, ‘‘Donnie, I told you we’re not supposed to have
coffee in the plant.’’ Burch poured out his coffee into a sink.
Nothing further was said to him.10 However, later that morn-
ing, Davenport told Spencer about Burch’s violations of the
food and drink rule. She asked if he had noticed anything
else that Burch was doing. A statement was prepared con-
cerning the incidents and Davenport signed it.
Between the promulgation of the employee handbook and
Burch’s discharge, others had continued to brew and drink
coffee in the plant. It was not until about 2 weeks after that
discharge that the coffee pot in shipping and receiving was
moved into the supervisor’s office. Even after the discharge,
supervisors were seen carrying cups of coffee through the
plant and/or drinking coffee in the plant. The practice of piz-
zas being brought in to the shipping and receiving depart-
ment, where employees ate them in the presence of their su-
pervisor, continued for some time after Burch’s discharge.
The coiling department employees were not instructed to re-
frain from bringing food or beverages onto the floor until
about May 11.
3. Attendance
Respondent’s attendance policy defined excessive absen-
teeism as one unreported absence, two unexcused absences
within a ‘‘rolling’’ 60-day period or a combination of unex-
cused absences and tardies. Excessive absenteeism was sub-
ject to a four-step progressive disciplinary system, beginning
with a verbal written warning accompanied by a counseling
session, followed by a written warning, suspension, and then
discharge. Where verbal written or written warnings were to
be issued, the employee was to be given a copy.
In the fall of 1991, Burch missed a number of days of
work because of health problems involving his daughter and
his mother-in-law. He had explained these problems to
Woolbright and Spencer and had been assured that Stoody
would work with him on them. Between August 15 and De-
cember 12, 1991, he was absent 10 times, tardy 3 times, and
left work early 3 other times. Only three absences, between
November 20 and December 11, 1991, were unexcused. He
was tardy on January 14 because he had to take his wife to
work; that was unexcused. His tardiness was excused on
February 27 and he had an unexcused tardiness on March 16
and unexcused absences on March 24 through 27. He had no
absences between March 28 and his discharge on April 10.
In March or early April, Burch was out sick and presented
a doctor’s excuse. As Davenport recalled it, he told Burch
that Burch was in violation of the attendance policy and that
he had been given a directive by the human resources depart-
ment to issue a verbal warning to him. However, none was
issued. When Burch questioned whether an absence was un-
excused if supported by a doctor’s excuse, Davenport said
that he would check; he never got back to Burch. Burch
never received a warning under the Employer’s progressive
discipline system for his absenteeism.
Spencer calculated Burch’s absentee rate, and those of
Becky Woods and Patrick Helmon, on April 9 or 10, after
meeting with Chet Young. The calculations allegedly showed
that over his entire tenure, Burch had been absent or tardy
10 percent of the time. Becky Woods had an attendance
record which was substantially worse than Burch. She had
been absent at a 30-percent rate. Spencer explained that she
had been absent as a result of an on-the-job injury. However,
Woods had received a warning for absenteeism while
Woolbright was still the maintenance supervisor. This would
indicate that not all of her absenteeism resulted from that in-
jury. The other employee, Helmon, was absent about the
same amount of time as Burch, 9 percent. Spencer explained
Helmon’s absences, stating that he had been absent for a
couple of weeks for treatment of a substance abuse problem.
However, Helmon had received two warnings for poor at-
tendance. As in the case of Woods, this would seem to indi-
cate that not all of his absences were due to those treatments.
After these three employees, the next most frequently absent
employee had an absentee rate of 3.5 percent.11
4. Work performance
As noted, one of the reasons assigned for Burch’s dis-
charge was his alleged unsatisfactory work performance. Es-
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 This testimony is particularly suspect; Hula was the second shift
electrician. He sometimes completed projects started by Burch or
Pruitt, but did not work with them. Hula did not testify and the
record contains no explanation of when Hula would have had the
opportunity to help Burch. Burch credibly denied responsibility for
any wiring errors on this transformer and pointed out that everyone
had worked on it.
13 Schaum also testified to having overheard a conversation be-
tween Woolbright and Burch, in early February in which it appeared
that Woolbright may have been questioning Burch’s ability to cor-
rectly rewire certain equipment, and to a conversation with Burch,
in early March, in which he told her that he was not responsible for
a problem for which he had been criticized by Woolbright. Neither
of these incidents warranted either discussion with the supervisor or
inclusion of a memorandum in Burch’s file and neither is significant
enough to warrant further discussion or consideration here.
sentially, this contention appears to have been based on com-
ments by the other electricians to Spencer and Schaum.
Thus, according to James Pruitt, sometime in February,
Woolbright had questioned Pruitt about why it was taking
him so long to complete his work. Pruitt told Woolbright that
he spent a lot of time helping Burch with the latter’s work.
Pruitt then went to Spencer to find out if anything had been
said about his work performance or the amount of time he
was spending to complete his work. He told Spencer that he
had spent time helping Burch.
Similarly, according to Schaum, around April 8, Rick Hula
told her that he was being blamed for problems on jobs other
than those on which he had worked because he was spending
time helping Burch. He described a problem involving a
transformer on a crane which Burch had allegedly wired im-
properly.12 Schaum immediately reported this to Spencer and
prepared a memorandum about it. That memorandum did not
identify Hula as the source of the report.
Schaum did not report Hula’s comments to Burch’s super-
visor, Davenport. Neither Pruitt’s nor Hula’s alleged com-
ments were discussed with Burch. Shaum’s memorandum
was not placed in Burch’s personnel file.13
Burch received no warnings for poor performance. Con-
trary to the provisions in Respondent’s handbook, he was not
‘‘given every opportunity to correct [his] performance.’’
Other employees had received as many as four warnings for
poor performance; none of them were discharged for that
reason.
Spencer further contended that in reaching the decision to
discharge Burch she had considered evaluations purportedly
prepared by Woolbright before he left and by Davenport
shortly after he became maintenance supervisor.
Woolbright’s written comments, allegedly prepared at
Young’s request, are contained on a single unsigned page,
with negative comments about five maintenance department
employees. It bears a notation, possibly inserted by Young
or his secretary, to indicate the date received, ‘‘4–3–92
Woolbright.’’ The written comment relates not to Burch’s
performance but to his attendance: ‘‘Misses work like 2–3
days at a time.’’ A second page, a preprinted form headed
‘‘Maintenance Employee Appraisal,’’ contains a numerical
evaluation of the departmental employees based on attend-
ance, ability-performance, and attitude. On a scale of 10,
Woolbright rated Burch a 5 for attendance, and gave him 7s
for both ability-performance and attitude. Burch’s scores in
those categories were below the scores of nine in each cat-
egory for Pruitt and eight in each for Hula. Woolbright gave
a lower score to Becky Woods, two for attendance, seven for
ability-performance, and five for attitude.
Woolbright ceased to be the maintenance supervisor about
March 15 and left Respondent’s employ at about that time.
(See R. Br. 8.) Davenport, previously a maintenance me-
chanic, became the interim maintenance supervisor about
March 15 and officially assumed that position on April 1.
Davenport’s evaluations, Spencer claimed, were prepared on
the basis of his observations while he was an employee in
the department. He rated almost everyone lower than
Woolbright had. To Burch he gave a total of 14, with a rat-
ing of 4 for attendance and 5 each for ability-performance
and attitude. He scored Woods at a nine (four, three, and
two, respectively). Davenport also commented negatively on
Burch’s attendance, ability-performance, and attitude, noting
that Burch had trouble troubleshooting electrical problems
and ‘‘seems to think rules apply to everyone but him.’’
These evaluations were not shown to the employees or
placed in their personnel files. Spencer volunteered that they
were ‘‘not done for the purpose of any type of disciplinary
actions towards employees.’’ The only evaluation of Burch
which was contained in his personnel file was his probation-
ary performance review, completed on September 17, 1991,
by Woolbright and countersigned by both Young and Spen-
cer. It rates Burch as satisfactory in quality and quantity of
work, attitude and attendance/punctuality; it rates him excel-
lent in cooperation. Woolbright’s written comment states:
‘‘Donnie is good worker & takes direction well . . . Donnie
is an all round craftsman.’’ Woolbright’s evaluations of the
other employees were, in the main, better than those of
Burch; most received more ‘‘excellents’’ than did Burch.
Both Pruitt and Hula had better evaluations than did Burch.
Davenport was not consulted with respect to the decision
to discharge Burch.
5. Safety glasses violations
Under the rules in effect at Stoody from July 1991, the
failure to wear safety glasses when entering or working in
undefined ‘‘eye hazard areas of the plant’’ was ‘‘considered
a serious infraction of company rules and will be accom-
panied by some form of reprimand or step of progressive dis-
cipline.’’ The rule was expanded in the March 1992 hand-
book to cover the entire plant area.
In an effort to portray Burch as one who treated employer
rules with disdain, Respondent presented testimony concern-
ing his alleged infractions of the safety glasses rule. Burch
testified that he adhered to that rule to the best of his ability,
removing them only to wipe sweat away or when washing
up.
Davenport, however, claimed that he observed Burch to be
in violation of the rule 75 to 80 percent of the time, usually
keeping the glasses perched on the top of his head. He never
mentioned these alleged violations to Burch. Similarly, Pro-
duction Manager Renken claimed to have seen Burch on an
almost daily basis in the plant. Most of the time, he said,
Burch had his glasses perched on top of his head. Renken
claimed that he mentioned the rule to Burch around the first
of the year and again about 3 weeks later. There was no tes-
timony as to what were considered the ‘‘eye hazard areas’’
and neither Davenport nor Renken described where these al-
leged violations took place. I am inclined to believe that
Burch failed to wear his safety glasses somewhat more fre-
1181STOODY CO.
14 The adverse inference as to knowledge is unnecessary. Knowl-
edge of Burch’s union sympathies is imputable to both Young and
Spencer from the knowledge acquired by Woolbright and
Hugelmaier. Pinkerton’s, Inc., 295 NLRB 538 (1989). See also
International Automated Machines, 285 NLRB 1122 fn. 6 (1987).
Moreover, once Local 369’s campaign became known to manage-
ment, I find, as did the administrative law judge in the latter case,
that I must ‘‘give the Respondent’s top management credit for being
able to put two and two together’’ and conclude that the employee
who wore a Local 369 T-shirt and carried a cup bearing its logo
was, more probably than not, involved in that campaign. Id. at 1131.
15 That state agency held that Burch was disqualified from receiv-
ing benefits. While the decisions of such tribunals are entitled to
some probative weight, they are not controlling in a Board proceed-
ing and I decline to accord this decision any significance here.
American Furniture Co., 293 NLRB 408, 428 (1989). Appearing be-
fore the referee, Burch had asserted that he had been discharged for
his union activity and that Respondent’s reliance on the alleged work
rules violations had been pretextual. In upholding the referee’s deci-
sion, the commission ignored Burch’s contention and the evidence
and concluded, ‘‘Whether it was a pretext or not claimant violated
a reasonable work rule in such a disdainful manner as to constitute
misconduct.’’ Such a conclusion flies in the face of logic, at least
by Board standards. The Employer’s asserted reason cannot be both
a pretext and grounds for the discharge.
quently than he admitted, but not nearly as often as either
Davenport or Renken claimed.
Renken acknowledged that others also violated the safety
glasses rule, but, he claimed, not with Burch’s frequency.
Employees similarly testified that violations of this rule, by
both employees and supervisors, were not uncommon.
Nothing was said to Burch about his alleged violations of
this rule when he was discharged. Burch was never given a
warning concerning his alleged infractions of this rule.
F. Analysis
1. Evidentiary rulings
Director of Manufacturing Chet Young did not testify in
this proceeding and no explanation was offered at the hearing
for his absence. Noting that, the General Counsel has re-
quested that I draw adverse inferences both as to Young’s
knowledge of Burch’s union activities and Respondent’s mo-
tivation for his discharge. After briefs were filed, Respondent
moved to supplement the record with evidence that Young
had terminated his employment with Stoody in July 1992,
acknowledging an inadvertent failure to place this informa-
tion in the record. The General Counsel opposed the motion
as untimely and Respondent’s evidence as not newly discov-
ered. The General Counsel did not contend that Young was
still in Respondent’s employ. Nor did counsel for the Gen-
eral Counsel dispute the assertion, contained in Respondent’s
motion, that her witnesses must have been aware of Young’s
earlier termination.
I must agree with the argument of Respondent’s counsel
that it would be inappropriate and unjust to draw damning
adverse inferences on the basis of an inadvertent error, par-
ticularly where one of the requested inferences goes to the
ultimate issue in the case.14 Inasmuch as the General Coun-
sel did not dispute the claim that Young was no longer avail-
able to Respondent as a witness, I find it unnecessary to rule
upon the motion to supplement the record with evidence of
his termination and I accept the representation of counsel, as
an ‘‘officer of the court’’ that he was not.
Respondent also sought to supplement the record with tes-
timony of Spencer, given before the Kentucky Division of
Unemployment Insurance prior to the unfair labor practice
hearing, concerning what was meant by the references to
‘‘attitude’’ in Burch’s dismissal.15 Spencer testified on behalf
of Respondent in the proceeding before me. She could have
been asked these questions at that time but was not. It would
be entirely inappropriate to receive such evidence now, be-
cause to do so would deprive the General Counsel of any op-
portunity for cross-examination. I find that Respondent’s ref-
erence to Burch’s ‘‘bad attitude,’’ particularly Young’s state-
ment that he was ‘‘not Stoody material,’’ was precisely what
the Board has concluded on many occasions it was, ‘‘simply
a euphemism for union sympathy.’’ International Automated
Machines, supra at fn. 21, and cases cited there.
2. The 8(a)(1) violations
The General Counsel’s amended complaint alleges two
independent 8(a)(1) violations, the rule prohibiting employees
from counseling others to engage in a work stoppage and
Spencer’s suggestion that employees who are dissatisfied
with their working conditions should quit.
The right to engage in a strike, i.e., a concerted work stop-
page, is basic to the Act. NLRB v. Washington Aluminum
Co., 370 U.S. 9 (1962). That right becomes merely illusory
if one employee may be precluded from seeking the support
of others to join with him or her in a strike or from counsel-
ing with one others about the possibility or tactics of a work
stoppage. Sustaining Respondent’s rule, moreover, would
permit the employer to discipline every employee who en-
gages in a strike, particularly its leaders, on the basis that
they had counseled with one another concerning that strike
or are counseling those who cross their line to support their
effort. A prohibition such as this clearly and unquestionably
interferes with, restrains, and coerces employees in the exer-
cise of their Section 7 rights.
Moreover, Respondent’s rule is akin to a prohibition of
discussions of union activities. As the court stated in
Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 296 (6th
Cir. 1985), enfg. 271 NLRB 1320 (1984):
[A]n employer violates the Act by implementing a rule
to inhibit employees’ union activities, Price’s Pic-Pac
Supermarkets, 707 F.2d [236] at 237 [6th Cir. 1983], or
by imposing a rule to restrict discussion of union mat-
ters. Union Carbide Corp. v. NLRB, 714 F.2d 657,
663–664 (6th Cir. 1983).
See also Fontaine Body & Hoist Co., 302 NLRB 863, 870
(1991).
Similarly violative is Spencer’s suggestion to Burch, after
soliciting his views as to what was wrong with the employ-
ees, that those who were ‘‘so nitpicking’’ as to complain
about detrimental actions taken unilaterally by the Employer
should seek other employment. Such statements convey the
message that complaints about working conditions and con-
tinued employment are incompatible and implicitly threaten
discharge to those who would voice them. Fontaine Body &
Hoist, supra at 866; House Calls, Inc., 304 NLRB 311
(1991); Rolligon Corp., 254 NLRB 22 (1981). This state-
ment, having been directed at a known union sympathizer,
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Schaum may not have been a supervisor. However, as the ad-
ministrative assistant in the human resources department, she was
clearly Respondent’s agent for labor relations matters.
the alleged discriminatee, cannot be said to have been de
minimus.
3. The 8(a)(3) violation
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), provides
the analytical mode for resolving discrimination cases turning
on the employer’s motivation. Under that test, in Fluor Dan-
iel, Inc., 304 NLRB 970 (1991), the Board stated:
The General Counsel must [first] make a prima facie
showing sufficient to support the inference that pro-
tected conduct was a ‘‘motivating factor’’ in the em-
ployer’s decision. Once accomplished, the burden shifts
to the employer to demonstrate that the same action
would have taken place notwithstanding the protected
conduct. It is also well settled, however, that when a
respondent’s stated motives for its actions are found to
be false, the circumstances may warrant an inference
that the true motive is an unlawful one that the re-
spondent desires to conceal.
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge, animus, and
adverse action taken against those involved or suspected of
involvement which has the effect of encouraging or discour-
aging union activity. Farmer Bros. Co., 303 NLRB 638, 649
(1991). Inferences of animus and discriminatory motivation
may be warranted under all the circumstances of a case; evi-
dence of suspicious timing, false reasons given in defense, or
disparate treatment all support such inferences. Electronic
Data Systems Corp., 305 NLRB 219 (1991); Columbian
Rope Co., 299 NLRB 1198 (1991).
I am satisfied that the General Counsel has established the
requisite prima facie case. Burch was a member of Local
369, in sympathy with its goals and actively involved in its
organizational campaign. His sympathies were known to at
least two supervisors whose knowledge is imputable to high-
er management. Pinkerton’s, Inc., 295 NLRB 538 (1989).
Moreover, I have found that Respondent’s managers were
definitely curious about the identity of those who were sup-
porting that campaign and knew of Burch’s openly displayed
union leanings. They knew or had reason to suspect that he
was involved in the campaign. Even their suspicion that
Burch was involved in the campaign would establish the req-
uisite element of knowledge. New River Industries, 299
NLRB 773 fn. 2 (1990).
Burch was terminated early in the Union’s campaign. The
discharge of one so openly associated with the Union would
clearly discourage continued union activity.
Additionally, I find such union animus as would support
an inference of discriminatory motivation. Thus, even with-
out relying on the policy statement and Aqua’s letter, animus
is established by the warnings from two supervisors to Rich-
ards to ‘‘lay low’’ inasmuch as he was suspected of engaging
in union activities (implicit threats notwithstanding the omis-
sion of such allegations from the complaint), Schaum’s inter-
rogation of Richards16 and Woolbright’s interrogation of
Burch (similarly not alleged as independent violations),
Spencer’s threatening response to Burch after she questioned
him concerning discontent among the employees and the pro-
hibition against the counseling of work stoppages which was
contained in the employee handbook.
The evidence further warrants the conclusions that Re-
spondent’s animus was directed against Burch, and that it
was endeavoring to build a case against him. (These facts
also support the conclusion of knowledge.) When Davenport
reported Burch’s infraction of the coffee rule on April 10 to
Spencer, she asked whether Davenport had noticed anything
else which Burch might have done. When Burch was termi-
nated, Young told him that he had a bad ‘‘attitude’’ and was
not ‘‘Stoody material.’’ Both are euphemisms for ‘‘union
sympathizer’’ and were so intended here.
In the circumstances here, moreover, I find that Respond-
ent’s policy statement on unions may fairly be considered as
antiunion animus supporting a finding of discriminatory mo-
tivation. As the Board stated in Gencorp, 294 NLRB 717 fn.
1 (1989):
[The] Board has consistently held that conduct that may
not be found violative of the Act may still be used to
show antiunion animus. See, e.g., General Battery
Corp., 241 NLRB 1166, 1169 (1979).
Respondent’s policy statement set forth its antipathy to-
ward unions about as strongly as any statement could without
independently violating Section 8(a)(1). It pledged to prevent
any union from coming into the plant ‘‘by every proper and
legal means available.’’ The handbook went on, contrary to
that pledge, to promulgate an unlawful rule discouraging
union activity, one which prohibited employees from coun-
seling other employees to engage in a work stoppage. Much
as Spencer’s implied threat against those who would com-
plain about working conditions negated Respondent’s claim
of openness to dealing with employees as individuals, the
juxtaposition of this threat following the pledge negates the
assurance that Respondent’s opposition to the Union would
be expressed only by proper and legal means. Employees
could reasonably conclude that Respondent would use unlaw-
ful as well as lawful means to prevent them from securing
union representation.
The General Counsel having put forth a strong prima facie
case of discrimination, the burden shifts to the Respondent
to demonstrate that it would have discharged Burch even in
the absence of his protected activity. Respondent’s defenses,
which I find to be pretextual, fail to meet that burden. Farm
Fresh, Inc., 301 NLRB 907 (1991). Moreover, the pretextual
nature of those defenses supports the inferences underlying
the General Counsel’s case. Fluor Daniel, supra.
Initially, Respondent relied on Burch’s attendance. His at-
tendance record, while far from perfect, cannot support the
discharge. Respondent has a progressive disciplinary system
for attendance and other problems. Burch had received no
warnings under that system and was only at its first step.
Two other employees had attendance records which were as
bad or worse; one had received two warnings, the other had
received one, but neither was discharged. Respondent ex-
plained away the attendance records of these employees, not-
ing that one had sustained a work related injury and the other
had undergone treatment for substance abuse. Respondent
1183STOODY CO.
17 I seriously question when and for what purpose they were pre-
pared. I note, first, that Woolbright’s was apparently turned in more
than 2 weeks after he ceased to be the supervisor and had left Re-
spondent’s employ. Noted also is the fact that while Davenport had
been an employee in the maintenance department under Woolbright,
his name does not appear on the printed form as one of the employ-
ees to be rated. This would tend to establish that the form was not
even in existence until after he was named supervisor, about April
1.
18 ‘‘An employer’s failure to adequately investigate an employee’s
alleged misconduct has been found to be an indication of discrimina-
tory intent.’’ Clinton Food 4 Less, 288 NLRB 597, 598 (1988).
19 Were I to accord the decision of the Kentucky Unemployment
Insurance Commission any weight, I would also note its conclusion
that Burch was not disciplined or warned for anything other than his
violation of the coffee rule and would not have been discharged for
any of those other alleged violations.
failed to accord the same consideration to Burch whose 1991
absences due to illnesses in his family had been expressly
excused with the assurances of Spencer and Woolbright that
Respondent would work with him through those difficult
times. The failure to follow its express progressive discipli-
nary policies and the disparate application of its attendance
policies against Burch evidence pretext. Dynatron Bondo
Corp., 302 NLRB 507, 512 (1991); Farm Fresh, supra; and
American Fleet Maintenance Co., 289 NLRB 764, 770–771
(1988). I note, too, that Burch’s last unexcused absence was
on March 27; there were no absences in April such as might
have precipitated a decision to discharge him without re-
course to the progressive disciplinary system.
As in the case of his absences, Burch had received no
warnings and had not been counseled for his alleged poor
work performance. Indeed, the allegations against him came
not from his supervisors, who were not consulted with re-
spect to the discharge decision, but from two unsubstantiated
complaints of his coworkers, neither of which was significant
enough to warrant inclusion in his personnel file or counsel-
ing with him. See Visador Co., 303 NLRB 1039, 1044
(1991).
The only true evaluation of Burch, done on completion of
his probationary period, ranked him as satisfactory or better,
albeit lower than the other two electricians. The evaluations
allegedly completed by Woolbright after he ceased to be the
supervisor and by Davenport upon assuming that function do
not support Respondent’s defense. Assuming that they were
actually prepared when and why Respondent claimed they
were, and not in anticipation of an unfair labor practice
charge,17 Spencer admitted that they were not included in the
personnel files or intended to support disciplinary action.
Even accepting those evaluations as legitimate, they do lit-
tle to support Respondent’s defense. The evaluation attrib-
uted to Woolbright marks Burch down primarily because of
his attendance, not his ability and performance or his atti-
tude. As to those, Woolbright gave Burch acceptable ratings,
7 out of a possible 10 points. Davenport’s evaluation of
Burch was considerably lower than Woolbright’s. However,
Davenport admitted that it was not based on his observations
as Burch’s supervisor. Rather, it was based on his alleged
observations as a coworker, covering the same period pur-
portedly evaluated by Woolbright. Davenport was not a
maintenance electrician; the record does not indicate either
his experience with electrical work or the amount of time he
spent working with or near Burch.
The foregoing evidence requires a conclusion that Re-
spondent’s claim of poor work performance was pretextual.
In reaching that conclusion, I note, particularly, Respondent’s
basis for claiming poor work performance by Burch, its fail-
ure to question Burch about the allegations of Pruitt and
Hula,18 its failure to document those alleged failings in his
personnel file or to warn or counsel him with respect to them
contrary to its established disciplinary proceeding, and Re-
spondent’s failure to consult with Burch’s supervisor with re-
spect to his discharge. I also note the satisfactory evaluation
of him in September and the ambiguous nature of the
‘‘Maintenance Employee Appraisals.’’19
Respondent’s reliance upon Burch’s violations of the cof-
fee policy is somewhat more substantial but still pretextual
in my view. His coffee drinking on April 10 was briefly al-
luded to in the discharge interview but was not asserted as
a reason on his discharge papers. More significantly, when
he announced the rule to the maintenance department, Dav-
enport lead Burch to believe that it would be enforced as
most safety rules at Stoody were enforced, with a wink and
a nod. Burch was told that, like a traffic infraction, he would
receive some measure of discipline if caught and it was sug-
gested that if he had to drink coffee in the plant, he should
‘‘keep it low key.’’ When Davenport saw Burch with coffee
on April 9, he said nothing, reinforcing this impression. Even
when Davenport spoke to Burch about his coffee on April
10, he issued no warning but merely reminded Burch of the
rule. I note, too, that here, as in the case of his alleged poor
performance, there was no attempt to use the established pro-
gressive disciplinary system and no one bothered to ask
Burch for his side of the story, to determine whether he un-
derstood the rule or even whether he had violated it.
Moreover, the rules barring food and drink from the plant
areas were disparately enforced both before and after Burch’s
discharge. Others had coffee on the morning of April 10; no
action was taken against them. Employees and supervisors
continued to eat, drink, and carry beverages through the
plant, all contrary to the published rule, after the handbook
was issued and even after Burch was discharged. In the
coiling department no specific announcement of the rule was
made until a month after Burch was discharged.
Respondent’s contentions with respect to Burch’s alleged
violations of the rule requiring the wearing of safety glasses
appear to be an afterthought. Even assuming that he was in
violation of the rule to the extent contended by Respondent,
his behavior was long condoned. Aside from a passing re-
minder, he was not admonished, warned, or otherwise dis-
ciplined for not fully complying with the rule. The safety
glasses rule, as wise as it may have been, was not a big issue
with Respondent’s management.
Assuming that the evidence concerning Burch’s supposed
failure to wear his safety glasses was introduced merely to
show that he treated rules with disdain, it falls short of the
mark. Such an attitude is hardly shown where those rules are
enforced with disdain.
Respondent argues, in essence, that an employee’s union
activity should not be permitted to shield that employee from
discipline for unacceptable performance or behavior. The ob-
verse of that truism is more applicable here. Behavior or per-
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
formance previously tolerated or condoned cannot justify the
discharge of an employee once his union activity becomes a
threat to the employer. The facts here compel me to conclude
that that is precisely what has occurred here. Burch’s dis-
charge, I must find, was motivated by his union activity and
not by any failings in his work performance or behavior. I
conclude that that discharge violated Section 8(a)(3) and (1)
of the Act.
CONCLUSIONS OF LAW
1. By prohibiting employees from counseling others with
regard to work stoppages and by suggesting that expressions
of dissatisfaction with working conditions is inconsistent
with continued employment, Respondent has threatened em-
ployees with discharge if they engage in union or other pro-
tected concerted activity and has thereby engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging Donald Burch because of his union and
other protected concerted activities, Respondent violated Sec-
tion 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having discriminatorily discharged Donald Burch, an em-
ployee, the Respondent must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Stoody Company, Division of
Thermadyne, Inc., Bowling Green, Kentucky, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discipline and discharge
by prohibiting them from counseling one another about work
stoppages and by suggesting that expressions of dissatisfac-
tion with working conditions is inconsistent with continued
employment.
(b) Discharging or otherwise discriminating against em-
ployees because they support International Brotherhood of
Electrical Workers, Local 369 or any other union or engage
in union or other protected concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Donald Burch immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the 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, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its plant in Bowling Green, Kentucky, copies
of the attached notice marked ‘‘Appendix.’’21 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 26, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon 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 Respondent 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 the Respondent has
taken to comply.