Teledyne Advanced Materials

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 539 (N.L.R.B. 2000)

TELEDYNE ADVANCED MATERIALS 539
Teledyne Advanced Materials and United Steel
Workers of America, AFL–CIO, CLC. Case 10–
CA–29555 and 10–CA–29908
September 29, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On May 2, 1997, Administrative Law Judge William
N. Cates issued the attached bench decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed cross-exceptions and a supporting
and answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions only to the extent consistent with this
Decision, and to adopt the recommended Order as modi-
fied and restated in full below.
1. We agree, for the reasons stated by the judge, that
the Respondent violated Section 8(a)(1) by the state-
ments of Supervisor Robert Justice in August 19962 that
employees were not to talk to anyone about the Union or
to anyone who was involved with the Union and that
they could be written up if they were caught talking
about the Union. In its exceptions, the Respondent con-
tends that it maintained a valid no-solicitation/no-
distribution rule in its employee handbook and that Jus-
tice “simply informed” the employees of this rule. In
this regard, the Respondent relies on the credited testi-
mony of employee Ballinger, who stated on cross-
examination that Justice said they could discuss the Un-
ion on “our own time or at break or lunch.”
We find no merit in this contention. Michael Ballinger
testified, without contradiction, that employees routinely
talked about “ball games, church, the weather” and other
subjects unrelated to work during working time without
any objection by the Respondent. Thus, it is clear that
whatever Respondent’s no-solicitation rule may have
prohibited, it did not prohibit talking about nonwork-
related matters during working time, and the Respondent
was not simply informing employees of that rule when it
promulgated its ban on conversation about the Union. It
is well established that an employer violates Section
8(a)(1) when, as here, employees are forbidden to discuss
unionization while working, but are free to discuss other
subjects unrelated to work, particularly when the prohibi-
tion is announced in specific response to the employees’
activities in regard to the union organizational campaign.
Orval Kent Food Co., 278 NLRB 402, 407 (1986); Lib-
erty House Nursing Homes, 245 NLRB 1194 (1979);
Olympic Medical Corp., 236 NLRB 1117, 1122 (1978),
enfd. 608 F.2d 762 (9th Cir. 1979). Accordingly, we
affirm the judge’s findings in this regard.3

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 All dates are in 1996 unless otherwise noted.
2. The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) when it issued a written “final warn-
ing” to employee Edward Norwood on April 24, 1996,
based on alleged misconduct which the Respondent had
tolerated on the part of other employees. The Respon-
dent does not except to this finding. The judge, however,
dismissed the complaint allegation that the Respondent
violated Section 8(a)(3) and (1) by its discharge of Nor-
wood on August 28. The General Counsel excepts to
this dismissal. For the reasons set forth below, we find
merit in this exception.
The General Counsel and the Respondent agree that
the judge applied the proper analytical framework in as-
sessing whether Norwood’s dismissal violated the Act.
As the judge observed, in order to establish that an em-
ployer’s discharge or discipline of an employee violates
Section 8(a)(3), the General Counsel must establish that
union activity was a motivating factor in the action taken
against the employee. Once the General Counsel has met
this burden, the burden shifts to the employer to estab-
lish, by a preponderance of the evidence, that it would
have taken the action even in the absence of the em-
ployee’s union activity. NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 401 (1983), approving Wright
Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
As the Board has explained, “[u]nder Wright Line, an em-
ployer cannot carry its burden of persuasion by merely
showing that it had a legitimate reason for imposing disci-
pline against an employee, but must show by a prepon-
derance of the evidence that the action would have taken
place even without the protected conduct.” Hicks Oil &
Hicksgas, Inc., 293 NLRB 84, 85 (1989), enfd. 942 F.2d
1140 (7th Cir. 1991).
The judge found that the General Counsel met his bur-
den of establishing that Norwood’s union activity was a
motivating factor in the Respondent’s decision to dis-
charge him. The Respondent does not dispute this find-
3 The Respondent does not except to the judge’s finding that it vio-
lated Sec. 8(a)(1) by Supervisor Stanley Carnegie’s statement in Sep-
tember 1996 that the elimination of overtime was based on the employ-
ees’ union activities.
332 NLRB No. 53
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 540
ing.4 The judge further found, however, that the Re-
spondent met its burden of establishing that it would
have discharged Norwood, even absent his union activ-
ity. Specifically, the judge found that the Respondent
established that Norwood had been insubordinate and
that other employees had been similarly discharged for
insubordination. We find, contrary to the judge, that the
record does not support these findings.
The essential facts surrounding Norwood’s discharge
are undisputed.5 On August 27 Maintenance Supervisor,
Roy Smith observed Norwood talking to two employees.
Smith asked Norwood what he was talking about and if
he did not have some work to do. Norwood responded,
“Well, ain’t none of your damn business what we’re talk-
ing about,” and said that if Smith wanted to know
whether or not he was working or what he should be do-
ing, then Smith could ask his supervisor. On August 28
Norwood was discharged. The disciplinary form given
to Norwood by the Respondent stated that he had been
insubordinate to a supervisor and the box was checked
indicating that the discipline imposed was “[t]ermination
upon review of overall work record.” Further, Norwood
testified, without contradiction, that Supervisor Bill
Reeves told him that since he had “already received my
final warning three weeks earlier, that I was being termi-
nated.”
Although we do not disagree with the judge’s finding
that Norwood engaged in insubordinate conduct, we find,
contrary to the judge, that the Respondent has not met its
burden of establishing that it would have discharged
Norwood for this conduct alone, even in the absence of
his union activities. To begin with, it has not proven its
claim that it discharged Norwood for this conduct alone.
The disciplinary form, on its face, indicates that the dis-
charge decision was based “upon review of [Norwood’s]
overall work record.” Thus, the form itself demonstrates
that the Respondent did not discharge him for the insub-
ordination alone. Moreover, Reeves made specific refer-
ence to the prior warning when notifying Norwood of his
discharge.
Further, Norwood had worked for the Respondent for
3 years, and the only discipline he had received was the
April 1996 “Final Written Warning,” in which the Re-

4 In their briefs, the General Counsel and the Respondent dispute the
strength of the General Counsel’s prima facie case: the General Coun-
sel contends that it was “strong,” whereas the Respondent contends that
it was “weak.” We find it unnecessary for purposes of this decision to
decide this issue.
5 The judge found it unnecessary to make credibility findings regard-
ing some of the events leading up to Norwood’s discharge. Acknowl-
edging that witnesses put the events “in a little different light,” he
found that there was not a “great deal of difference” among the wit-
nesses’ testimony.
spondent stated that any future violation of company
policy will result in immediate termination. This final
warning, however, was found unlawful by the judge and,
as noted above, the Respondent does not contest this
finding. Consequently, the Respondent is not privileged
to rely on this unlawful warning as a basis for further
discipline against Norwood. Under these circumstances,
and in light of the evidence indicating that the Respon-
dent’s decision to discharge Norwood was reached only
after a review of his work record, we find that the Re-
spondent failed to establish its claim that it discharged
Norwood solely for the act of insubordination.
We further find, contrary to the judge, that the Re-
spondent failed to establish that its work rules mandated
dismissal on the first act of insubordination and that em-
ployees John Davis and Gary Baker were terminated on
the basis of their first act of insubordination. The Re-
spondent’s work rules are cast in discretionary rather
than mandatory terms. They are prefaced as follows:
The following general standards for employee conduct
provide an understanding of what conduct is inappro-
priate and what disciplinary action may be appropriate
if employee misconduct occurs. . . . All disciplinary
situations will be evaluated in light of their individual
circumstances, including the employee’s overall record
of performance. Therefore, the list provides only a
guide as to what discipline may be appropriate for the
situations listed. . . .
Group A
Violation of the following rules may result in immedi-
ate discharge:
. . . .
(14) Insubordination, refusal to perform assigned duties or
refusal to follow the instructions of your supervisor. . . .
[Emphasis supplied.]
Given this prefatory language that discharge for insubordi-
nation is not mandated, the Respondent has clearly failed to
establish its claim that an act of insubordination inevitably
results in discharge.
Nor did the Respondent establish its claim that em-
ployees Gary Baker and John Davis were discharged for
an act of insubordination. Although the Respondent’s
vice president, Mae Dell Davis, testified that Baker and
Davis were terminated for insubordination, she did not
establish that their acts of insubordination were the sole
cause of their terminations, without regard to their prior
work record. That testimonial gap is telling in view of
the Respondent’s stated policy, noted above, that “[a]ll
disciplinary situations will be evaluated in light of their
individual circumstances, including the employee’s over-
all record of performance.” Moreover, the documentary
TELEDYNE ADVANCED MATERIALS 541
evidence in the record regarding these employees fails to
indicate the reason for their discharge. In these circum-
stances, we find that the Respondent failed to establish
that these employees were discharged for a single act of
insubordination. Accordingly, the discharges of these
two employees, standing alone, do not warrant an infer-
ence that Norwood would have been discharged for in-
subordination even absent his union activities.
For all these reasons, we find that the Respondent has
failed to meet its burden of establishing that Norwood
would have been discharged even absent his union activ-
ity and therefore it failed to rebut the General Counsel’s
showing that Norwood’s discharge was motivated by his
union activities. Accordingly, we find that the Respon-
dent violated Section 8(a)(3) by discharging Norwood,
and we shall order that the Respondent offer reinstate-
ment to Norwood and make him whole for any loss suf-
fered as a result of his unlawful termination. Backpay
shall be computed on a quarterly basis, making deduction
for interim earnings, F. W. Woolworth Co., 90 NLRB
289 (1950), and with interest to be paid on amounts ow-
ing, as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Teledyne Advanced Materials, Huntsville,
Alabama, its officers, agents, successors and assigns,
shall
1. Cease and desist from
(a) Issuing final warnings to or discharging employees
because they engaged in union activities.
(b) Promulgating and maintaining a rule prohibiting
employees from talking about the Union while not pro-
hibiting talking about other subjects.
(c) Threatening employees with discipline if they
talked about the Union during working time.
(d) Informing employees that their overtime work was
being reduced in retaliation for engaging in union activi-
ties.
(e) 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Edward Norwood full reinstatement to his former posi-
tion or, if that position no longer exists, to a substantially
equivalent position without prejudice to his seniority or
any rights or privileges previously enjoyed.
(b) Make the above-named employee whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against him.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warning or
discharge, and within 3 days thereafter notify the em-
ployee in writing that this has been done and that the
warning or discharge will not be used against him in any
way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Huntsville, Alabama facility, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 24, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HURTGEN, dissenting in part.
I would remand this case for further critical findings.
In brief, the facts are as follows: On August 27 main-
tenance supervisor, Roy Smith, observed Norwood talk-
ing to two employees. Smith asked Edward Norwood
what he was talking about and if he did not have some
work to do. Norwood responded, “Well, ain’t none of
your damn business what we’re talking about.” Nor-
wood added that if Smith wanted to know whether or not
he was working or what he should be doing, then Smith
could ask his supervisor. On August 28 Norwood was
discharged.
6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 542
My colleagues concede that Norwood engaged in in-
subordinate conduct. They also concede that Respon-
dent’s rules provide that insubordination may result in
discharge. Finally, they concede that the discharge form
given to Norwood specifically mentioned “insubordina-
tion to a supervisor” as the reason for the discharge.
However, my colleagues seize upon the fact that the form
also had a checked box that read: “[t]ermination upon
review of overall work record.” In the view of my col-
leagues, this brought into play all of Norwood’s em-
ployment history, including the fact that he had received
an unlawful warning on April 24. Thus, according to the
majority, Respondent has not rebutted the General Coun-
sel’s case.
I disagree with this reasoning. The specific reference
to insubordination, and the factor of timing, make it clear
that Respondent relied, at least in substantial part, upon
the insubordination of August 27. The checking of the
box cannot negate this obvious fact. Further, two other
employees have previously been discharged for insubor-
dination. In this regard, my colleagues note only that
Respondent’s witnesses did not testify that insubordina-
tion was the sole reason for these discharges. However,
the General Counsel failed, upon cross-examination, to
establish that there were other specific reasons for these
discharges.
On the other hand, I recognize that there is some evi-
dence that Respondent (through Supervisor Bill Reeves)
referred to the warning when he told Norwood that he
was discharged. The judge did not mention this evi-
dence. Thus, I would remand this case to the judge for
him to evaluate this evidence and to consider whether
Norwood would have been discharged even if there had
been no warning.

APPENDIX B
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT issue final warnings to or discharge
our employees because they engage in union or other
concerted activity protected by the Act.
WE WILL NOT promulgate and maintain a rule pro-
hibiting our employees from talking to other employees
about the Union, while not prohibiting talking about
other subjects.
WE WILL NOT threaten to discipline our employees
if they talk about the Union during worktime.
WE WILL NOT inform our employees that their over-
time work was being reduced in retaliation for employees
engaging in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Edward Norwood full reinstatement
to his former position, or if that position no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make the above-named employee whole for
any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful final warning or discharge of Edward Nor-
wood and, WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the dis-
charge will not be used against him in any way.
TELEDYNE ADVANCED MATERIALS

John D. Doyle, Esq., for the General Counsel.
Kurt A. Powell, Esq. and Thomas E. O’connor Jr., Esq. (Hun-
ton and Williams), for the Company.
BENCH DECISION AND CERTIFICATION
WILLIAM N. CATES, Administrative Law Judge. I heard
this case in trial proceedings conducted in Huntsville, Alabama,
on May 1–2, 1997. At the conclusion of trial proceedings on
May 2, 1997, and after hearing oral argument by the Govern-
ment counsel and company counsel, I issued a Bench Decision
pursuant to Section 102.35 (a)(10) of the National Labor Rela-
tions Board’s Rules and Regulations, setting forth findings of
fact and conclusions of law.
For reasons stated by me on the record at the close of the
trial, I found Teledyne Advanced Materials (the Company),
violated Section 8(a)(1) of the National Labor Relations Act
(the Act), as amended, when in August 1996 it promulgated
and maintained a rule prohibiting its employees from talking
about the Union while they were working, while not prohibiting
talking about other subjects; by threatening its employees with
discipline if they talked about the Union during worktime; by
on or about September 1996 informing its employees that their
TELEDYNE ADVANCED MATERIALS 543
overtime work was being reduced in retaliation for the employ-
ees engaging in union activities; and, violated Section 8(a)(1)
and (3) of the Act by on or about April 24, 1996, issuing a final
warning to its employee Edward Norwood (Norwood). I con-
cluded the Company did not violate the Act when on or about
August 28, 1996, it discharged its employee Norwood.
Accordingly, I dismissed that portion of the complain

t.

I certify the accuracy of the portion of the trial transcript (pp.
328–343) containing my Decision, and I attach a copy of that
portion of the transcript, as corrected,1 as “ Appendix A.”
CONCLUSIONS OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act; that it vio-
lated the Act in the particulars and for the reasons stated at trial
and summarized above; and, that its violations have affected
and, unless permanently enjoined, will continue to affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Company unlawfully issued its em-
ployee Norwood a final warning on or about April 24, 1996, I
recommend the Company, within 14 days from the date of this
Order, be ordered to remove from its files any reference to
Norwood’s final warning and within 3 days thereafter notify
Norwood in writing that his has been done and that the unlaw-
ful warning will not be used against him in any way. I also
recommend the Company be ordered, within 14 days after ser-
vice by Region 10 of the National Labor Relations Board (the
Board), to post an appropriate notice to its employees, copies of
which are attached hereto as “Appendix B” for a period of 60
consecutive days in order that employees may be apprised of
their rights under the Act and the Company’s obligation to
remedy its unfair labor practices.
[Recommended Order omitted from publication.]
APPENDIX A
BENCH DECISION
APPENDIX A
328
JUDGE CATES: I find as follows, that the charge in Case
10–CA–29555 was filed by the Union on August 28, 1996 and
timely thereafter served on the Respondent. I find the charge in
Case 10–CA–29908 was filed by the Union on January 27,
1997 and thereafter timely served on the Company. I find that
an amendment to the charge in Case 10–CA–29908 was filed
by the Union on March 12, 1997 and thereafter served on the
Company.
I find that the Company is a Delaware corporation with an
office and place of business in Huntsville, Alabama, herein
1 I have corrected the transcript by making physical inserts, cross-outs,
and other obvious devices to conform to my intended words, without regard
to what I may have actually said in the passages in question.
called the Company’s facility, and it is the only facility in-
volved in this proceeding, and that the Company is engaged in
the business of manufacturing refractory metals.
Additionally, I find that during the past 12 month period, a
representative period, the Company in conducting its business
operations purchased and received goods valued in excess of
$50,000 directly from suppliers located outside the State of
Alabama.
The complaint alleges the Company admits and the evidence
establishes that the Company is an employer engaged in com-
merce within the meaning of Section 2(2) (6) and (7) of the
Act.
I find that at all times material herein, the United
329
Steel Workers of America, AFL–CIO, CLC, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Based on the evidence presented, the allegations of the com-
plaint and the admissions in answer, I find that Stanley Carne-
gie, Maedell Davis and Robert Justice are supervisors and
agents of the Company within the meaning of Section 2(11)
and 2(13) of the Act.
From this point on, I shall address the complaint allegations
essentially in the order that they are outlined in the complaint.
Before I do that, let me make a few brief words with respect
to credibility. I have obviously had the opportunity to observe
each witness that testified and I have weighed their testimony
in light of the testimony given by other witnesses and if any
testimony has been supported or substantiated by documenta-
tion, I have considered that.
I shall not discuss in totality all of the testimony and evi-
dence that has been presented. Any evidence upon which I base
a finding, I have credited that evidence, if there is evidence to
the contrary.
I will try to explain my rationale for any credibility resolu-
tions that I make.
I take full note of the fact that witnesses when they are testi-
fying about their own conduct, actions or words, may testify
about it more completely and thoroughly and in
330
some cases clearer than they actually did when they were going
through the events. I recognize there is the potential for bias on
a number of the witnesses who have testified. For example,
certain of the officials testifying for the company may wish to
continue to please the company. The alleged discriminatee, that
is the discharged individual, Mr. Norwood, certainly has among
other things a job future and a pecuniary interest in the outcome
of the proceeding.
I’m not unmindful of those facts.
Having said that, I turn now to the allegations in paragraphs
seven and eight of the complaint. Did the Company promulgate
a rule prohibiting its employees from talking to other employ-
ees about the Union while they were working and did the Com-
pany threaten its employees with discipline if they talked about
the Union during work time.
The testimony in support of that came from a witness, Mi-
chael Ballinger. Mr. Ballinger testified that supervisor Justice
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544
instructed the employees in August not to talk to anyone about
the Union and that he did not want them to talk to anyone that
was involved with the Union. Ballinger said he asked how you
would know if anyone was involved with the Union and that he
was told that the employees could be written up if they were
caught talking about the Union.
Mr. Justice testified he gave no such instructions
331
to the employees, that his policy simply was that they were not
to hang around too long with other employees, but he never
told any employee not to talk about the Union or to those in-
volved with the Union.
Further, in support of supervisor Justice’s testimony, Mr.
Eric Harris testified that he was not aware of any such rule and
that he didn’t hear any such instructions made, that it was sim-
ply a reminder by Mr. Justice to the employees that they were
not to be loitering or talking extended times when they should
be working.
Who is telling the truth? Mr. Ballinger, what reason did he
have to misspeak the truth or Mr. Justice and Mr. Harris? These
are tough questions but I am crediting Mr. Ballinger’s testi-
mony. He appeared to me to be truthful as he was testifying.
Also, I’m persuaded that Mr. Harris and Mr. Ballinger could
have been talking about two different occasions. Mr. Harris
said they were just pushing the rules at that time.
I have concluded and I’m crediting Mr. Ballinger’s testi-
mony. Mr. Justice, for example, acknowledged that he held
meetings at different times in different places. I didn’t give
much weight to Mr. Osborne’s testimony because he said
something to the effect that he thought it was a three minute
limitation on talking or whatever and then he said that was a
policy he just sort of had in his mind when he came to the com-
pany.
332
I have concluded and will find that the Company has vio-
lated the Act as alleged in paragraphs seven and eight of the
complaint.
Next, we come to paragraph nine of the complaint. That
deals with whether supervisor Carnegie threatened employees
by informing them that the elimination of overtime was based
on their Union activities or Union activities that was going on
at the plant.
I don’t think there is much dispute that Mr. Carnegie made
such a comment. I gave particular attention to Mr. Milam’s
testimony, if I have my names correct, because I believe Mr.
Milam stated somewhere in his testimony that Mr. Carnegie
was his father-in-law. Not only is he testifying about matters
that happened at the plant, he’s testifying, if my recollection is
correct, about matters that concerned his father-in-law.
I’m giving credit to Mr. Milam’s testimony on that point. I
don’t think there is any dispute that Mr. Carnegie said it.
Then we come to the issue—before I get to Mr. Carnegie’s
actions after making the comments, that I find he did make,
there was one other witness, a Mr. Merks, who indicated Mr.
Carnegie said they were eliminating the overtime before 6:00
a.m. I believe it was or 7:00 a.m., the 6:00 a.m. overtime be-
cause of the
333
Union.
I recognize Mr. Carnegie said that could have been one of
the reasons, but I’m persuaded he said it stronger than that. I’m
persuaded that as he described it, he said all hell had burst loose
and that things were not going very well, so in his frustration,
he made those comments.
Then he indicates, “he” being Mr Carnegie, that he went to
Bob Moore, and I think Mr. Moore’s title is Vice President of
Production, but it’s not important, he’s a supervisor and agent
of the company, and in a position higher in the hierarchy of
management than was Mr. Carnegie, and said I’ve put my foot
in my mouth, I’ve said things I shouldn’t have said, and a deci-
sion according to Mr. Carnegie was made to call a meeting the
next day of the individuals and apologize and make a retraction.
Carnegie goes in the next day, and here again, I don’t think
on this part there is any dispute, and said he wanted to apolo-
gize for his comments the day earlier, that he was frustrated and
that there really wasn’t anything to that as a reason. The reason
was the T&A problems they were having out there at the plant,
that was the reason they were doing away with the early morn-
ing overtime.
The Company would argue that apology and retraction clears
the matter up. I’m not persuaded it does for the simple reason it
wasn’t as complete as Board law would
334
require it to be. There is no evidence that he indicated such to
everyone that was present at the earlier meeting. There is no
evidence that he made it clear that what he had done would
violate the Act and that was not the Company’s policy, and that
it would not happen again.
I find as alleged in paragraph nine of the complaint, that the
Company violated the Act as outlined therein and that their
retraction, such as it was, and apology is insufficient to negate
the need for any corrective action.
Paragraph ten of the complaint, which attributed conduct to
Maedell Davis was amended out of the complaint, so there can
be no finding there with respect to any conduct that may or may
not have taken place. I say that only so that anyone reviewing
the record will see that paragraph ten of the complaint was
amended out and as such, there is nothing there for me to make
any ruling on.
Then we come to what I consider to be the heart of the case
in the next two paragraphs of the complaint, and I shall again
deal with those in the order that they are set forth in the com-
plaint.
The Government alleges that the Company issued a final
warning to Mr. Norwood on April 24, 1996, and that they did
so because of his Union activities. They also allege that on
August 28, 1996, the Company discharged Mr. Norwood and
again did so because of Mr. Norwood’s Union activities.
335
The Company says no, we did not do it because of any Union
activities or lack thereof on the part of Mr. Norwood, that we had
TELEDYNE ADVANCED MATERIALS 545
valid, legitimate and business justified reasons for doing so and
would have done it even if you should conclude that he had Un-
ion activity and we had knowledge of that activity, and that calls
for the analytical framework as outlined in a case called Wright
Line, which is reported at 251 NLRB 1083, a 1980 case that was
enforced at 662 Fed 2nd 899 by the First Circuit in 1981 and cert
to the United States Supreme Court was denied in an order of the
Court found at 455 U.S. 989, an 1982 case.
Wright Line provides the analytical mode for resolving dis-
crimination cases turning upon the employers motivation. Under
that test, the General Counsel must first make a prima facie
showing sufficient to support the inference that protected conduct
was a “motivating factor” in the employer’s decision. Once ac-
complished, 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 the one that the
respondent desires to conceal. Motive may be inferred from the
total circumstances proved. Under certain circumstances, the
Board
336
will infer animus in the absence of any direct evidence. That
finding may be inferred from the record as a whole.
When does the Government make out a prime facie case? A
prima facie case is made out when the Government establishes
Union activity, employer knowledge, animus and adverse action
taken against those involved or suspected of involvement which
has the effect of encouraging or discouraging Union activity.
Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case, even without
direct evidence, evidence of suspicious timing, false reasons
given in defense and the failure to adequately investigate alleged
misconduct all support such inferences.
Once the Government has made out a prima facie case, the
burden shifts to the respondent or in this case, the company. That
burden for the company requires the company to establish its
Wright Line defense only by a preponderance of the evidence.
The company’s defense does not fail simply because not all of
the evidence supports it or even because some evidence tends to
negate it.
That’s the analytical framework under which I will examine
the discipline that was given to Mr. Norwood.
First, the warning that Mr. Norwood was given on April 24,
1996. There is no question he was given a warning on that day,
nor is there any dispute about the reasons
337
asserted by the company for doing so.
First, let’s look at the knowledge of Union activity on the part
of Norwood prior to April 24, 1996. The following evidence
would tend to indicate the Company’s knowledge of Mr. Nor-
wood’s Union activity prior to that event.
Mr. Norwood testified, and on this particular point, I credit his
testimony, that he signed a card in February of 1996—February
of 1995, and informed his supervisor, Mr. Webster, of that fact,
and again in either December of 1995 or January of 1996, he
signed a card, and that once a week, between 1995 and April
1996, he talked with his supervisor, Webster, about the Union
and/or his Union activities and/or the activities of others.
There is also the testimony of Janet Denny, whose testimony
on this particular point I credit, that the Union was discussed in
Human Resources’ meetings in March of 1996, to the extent of
wanting to know who else was involved, et cetera.
Now, we have Mr. Norwood involved in Union activity. We
have evidence that the Company knew of the activity and we
have actions taken against him. Is there any evidence of animus
with respect to his receiving the warning in April.
There are a number of factors that persuades me that animus
was a factor in that action. The number of items that Mr. Nor-
wood was disciplined for needs be addressed. First, he was
338
disciplined for a violation of the visitor policy. There are a num-
ber of factors that would tend to indicate others did so without
any adverse action against them. For example, sales persons. For
example, those coming to the plant to pick up paychecks.
Also at the time Mr. Norwood visited the plant on Sunday, I
believe it was April 21, he first reported through the security
provided by the Company, a Huntsville off duty police officer,
and he made no effort to prevent Mr. Norwood from entering the
facility, nor did he warn him in any manner. The office where
Mr. Norwood could have signed in if he had wanted to was
closed. Mr. Norwood, when observed by supervisor Kennemore,
no corrective action was taken, not even to the extent of saying
you ought not be in here.
Mr. Norwood was also charged with violating the badge pol-
icy. The evidence is somewhat overwhelming on that point, that
badges are not consistently or uniformly worn by employees at
the plant, even to this very day. Mr. Norwood was also charged
with the failure to obtain management’s approval before bringing
visitors onto the facility. Again, the offices were closed and the
person involved for management made no effort to correct the
situation. There is evidence that children are brought into the
plant, at least have in the past on pay days, and into the Hygiene
Building.
Much was made about the fact that the Hygiene Building
339
is not a production and maintenance part of the plant. There is
evidence in the record that indicates there are blenders, crushers,
a machine shop and locker room facilities in that building.
I conclude from all that there must have been some other rea-
son that the Company gave Mr. Norwood this warning rather
than his conduct. Each of the items for which they charged him in
violation was items they had tolerated in others.
I find as alleged in paragraph 11 of the complaint, that the
Company issued a final warning to its employee, Edward Nor-
wood, on or about April 24, 1996, in violation of the Act.
Then we come to the termination of Mr. Norwood on August
28, 1996. Let’s go through the elements of what it takes to make
out a prima facie case. Union activity on the part of the alleged
discriminatee. Mr. Norwood testified and in fact, the Company
concedes knowledge, that he wore a tee shirt that contained the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
markings of the Union, God Bless the Steel Workers, and USWA
Local 915. He also wore Union buttons, Work With Dignity,
Steel Workers, USWA, AFL–CIO, CLC, and a button that said
Steel Workers, Yes, USWA, AFL–CIO, CLC.
Other indications of his Union activity and Company knowl-
edge of it is that on the day of the incident that led
340
to Mr. Norwood’s discharge, Mr. Norwood had laid some Union
cards on a golf cart and Mr. Webster came by and picked them
up and examined them.
Also, there is the testimony from a staff meeting that Maedell
Davis had said that if the Union came in, heads would roll.
Animus is also established by the General Counsel by among
other things, a statement by Craig Saline that all Union stewards
were assholes. There is the comment as testified to by witness
Milam that Mr. Moore had said there were trouble makers down
in the electric shop.
There is no question that you have Company knowledge and
you have Union activity, you have adverse action and you have
animus.
Has the Government made out a prima facie case? I conclude
they have. Has the Company come forward and met its burden of
proof that the same action would have taken place even in the
absence of any protected conduct on the part of Mr. Norwood.
I’m persuaded they have.
The basis of that is, and there is no question at least in my
mind based on the testimony presented, that Mr. Smith came by
(and even if you use Mr. Norwood’s testimony), asked Norwood
what he was talking about and if he didn’t have some work to do.
Mr. Norwood said what he was talking about was none of
Smith’s business and that if he
341
wanted to know whether or not he was working or what he
should be doing, then Smith could ask his supervisor.
Others put it in a little different light but I don’t find a great
deal of difference between the facts regarding what took place on
the occasion in August.
The question comes, were they joking. Was this simply a joke
between Mr. Smith and Mr. Norwood and the Company knew or
should have known that it was a joke between them.
I’m persuaded the Company did not view it, nor were they in-
formed sufficiently, if at all, that it was a joking situation. I base a
lot of that on the testimony of Mr. Smith when he said that if he
had been joking, he would not have come back a second time and
told Mr. Norwood to go back to work.
The fact that it was not a joking matter is perhaps bolstered to
some degree by the comments attributed to Mr Murphy that he
was somewhat embarrassed by Mr. Norwood’s conduct and that
it was not a joke.
Based on the demeanor of Mr. Smith, I conclude that he did
not threaten to whip the shirt off either Farron or Cy Harbin when
he spoke with Norwood on the day in question.
Stated simply, it doesn’t matter that there is anti-Union ani-
mus, that there is Union activity and Company knowledge, and
even that the Company was happy to see this individual go, if the
individual does what the Company says
342
he did and other employees, such as Mr. Baker and Mr. Davis,
were terminated for like insubordination, then the fact that Nor-
wood had Union activity and that the Company was happy to see
him go doesn’t insulate him or protect him from being rightfully
discharged or stated differently, for being discharged without the
Company having violated the Act.
If the individual does what he is accused of doing and if that
constitutes insubordination and if others are discharged for the
same like offense, then you must conclude that the Company
would have discharged Mr. Norwood in light of all of the Union
activity that he engaged in and all of the animus that this Com-
pany has demonstrated towards the Union activities of its em-
ployees.
With respect to paragraph 12 of the complaint, which alleges
that the Respondent unlawfully discharged its employee, Mr.
Norwood, on August 28, 1996, I shall dismiss that paragraph of
the complaint.
I shall in due time, once I have received a copy of the tran-
script, certify my decision to the Board and it is my understand-
ing that all appeal rights run from the time of the certification of
my decision to the Board.
I want to thank each of you for your participation and for the
cooperation that the parties have demonstrated between each
other. It has been my pleasure to hear the case because I don’t
know if I asked more than one or two
343
questions in the entire trial, because all counsel, the Government
counsel and the Company counsel, came fully prepared and put
their case on in an outstanding manner, both sides.
You are to be commended, each side, for the party you repre-
sent. You have done an excellent job.
Unless there is anything further, this hearing is closed.
(Whereupon, the hearing was closed.)