Trico Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1987

283 N.L.R.B. 848 (N.L.R.B. 1987)

848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Trico Industries, Inc. and John Jay Clark . Case 6-
CA-18816
30 April 1987
DECISION AND ORDER
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 6 August 1986 Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a, brief in support of
the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings , findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Trico Indus-
tries, Inc., Bradford, - Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The judge found that personnel records fail to reflect "a single inci-
dent" where an employee was warned or otherwise disciplined for en-
gaging in excessive conversation or any conduct resembling Clark's con-
versations with Union President Baxter on 14 and 15 January 1986. The
record shows that on one occasion an employee received a written warn-
mg for "visiting with" Baxter for a prolonged period of 10 to 15 minutes
without permission . As found by the judge, however, the record shows
that the Respondent does not ban all idle conversation between employ-
ees during working time and the Respondent did not demonstrate that an
interference with production resulted from the conversations of 14 and 15
January Having considered this evidence , we agree with the judge that
the Respondent's discharge of Clark violated the Act. NLRB v. Transpor-
tation Management Corp., 462 U.S 393 (1983), approving Wright Line,
251 NLRB 1083 ( 1980).
The National Labor Relations Board has found
that we violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage membership in Brad-
ford Motor and Mechanics Lodge No. '1286; Inter-
national Association of Machinists and Aerospace
Workers, or any other labor organization, by dis-
charging or in any other manner discriminating
against employees with respect to their wages,
hours, or terms and conditions or tenure of em-
ployment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer John J. Clark immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
and WE WILL make him whole for any loss of earn-
ings and other benefits', resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL notify John J. Clark that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
TRICO INDUSTRIES, INC.
Matthew Franckiewicz, Esq., for the General Counsel.
William R. Tait Jr., Esq. (McNerney, Page, Vanderlin &
Hall), of Williamsport , Pennsylvania , for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding was heard by me in Bradford, Pennsylvania,
on 30 April 1986, on an initial unfair labor practice
charge filed on 27 January 1986, and a complaint issued
283 NLRB No. 135
TRICO INDUSTRIES
on 28 February 1986, alleging that the Respondent inde-
pendently violated Section 8(a)(1) of the Act by stating
that employee inquiries concerning working conditions
should be addressed to management, rather than the ex-
clusive bargaining representative . The complaint further
alleged that the Respondent violated Section 8(a)(3) and
(1) of the Act by discharging John Jay Clark in reprisal
for his union and/or protected concerted activity. In its
duly filed answer, the Respondent denied that any unfair
labor practices were committed. Following close of the
hearing, briefs were filed by the General Counsel and the
Respondent.
On the entire record in this proceeding , including con-
sideration of the posthearing briefs, and my opportunity
directly to observe the witnesses while testifying and
their demeanor, I I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a California corporation, with a
place of business in Bradford, Pennsylvania, from which
it is engaged in the manufacture and nonretail sale of oil
well pump parts. In the course of the operations, during
the 12-month period ending 31 December 1985, a repre-
sentative period, the Respondent received goods and ma-
terials at the location valued in excess of $50,000,
shipped directly from points outside the Commonwealth
of Pennsylvania, and also shipped from the facility,
goods and materials valued in excess of $50,000, directly
to points outside the Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and it is
found that the Respondent is now, and has been at all
times material, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and it is
found that Bradford Motor and Mechanics Lodge No.
1286, International Association of Machinists and Aero-
space Workers, AFL-CIO (the Union) is a labor organi-
zation within the meaning of Section 2(5) of the Act.
IlI. THE ALLEGED UNFAIR LABOR PRACTICES
Principally at stake in this proceeding is the question
of whether the Charging Party, John Clark, was termi-
nated for reasons prescribed by the Act.
Clark was hired on 16 December 1985. He worked for
only about 1 month, all' on the second shift, from 3:30
p.m. to midnight. According to his immediate foreman,
"Smokey" DeGolier, Clark was a good worker, who
gave him no trouble. Clark's discharge occurred on 16
January 19862 in the context of an established bargaining
' Credibility resolutions hereinafter made may be accompanied by ob-
jective rationale . This is merely intended to reenforce, not discount, per-
ceptions gained through my firsthand observation of the witnesses. Fur-
thermore, unmentioned testimony is rejected to the extent that it is irrec-
oncilable with expressly credited evidence.
2 Unless otherwise indicated all dates refer to 1986.
849
relationship that dated back several years. At the time a
collective-bargaining agreement , scheduled to expire on
9 October 1987, was in effect. The discharge occurred
prior to Clark's completion of the 45-day probationary
period set forth in article VII, section 2 of the contract.3
The General Counsel contends that Clark was dis-
charged because he was observed conversing with a
union official on 14 and 15 January, activity that accord-
ing to the General Counsel is protected by Section 7 of
the Act. The Respondent defends essentially on the
claim that Clark was terminated for legitimate cause;
namely, his poor'attitude and demonstrated lack of initia-
tive.
The dispute centers on the last week of Clark's em-
ployment, when Gerald M. Alexander Jr., the Respond-
ent's plant superintendent, soured on Clark. During that
week Alexander learned of Clark's frustration with his
inability to advance to a higher paying job on sophisti-
cated, computerized machinery. The equipment in ques-
tion is known in the trade as "Numerical Control" or
NC machines. In previous employment, Clark had ac-
quired experience on the automated machinery and per-
sonally owned tools, apparently having special utility on
the numerical control equipment. This type of equipment
was mentioned prominently in the newspaper advertise-
ment that lured Clark to apply with the Respondent.4
Clark, prior to his discharge, was not afforded the op-
portunity to operate any NC equipment. He discussed
the possibility of doing so with his' supervisor, Smokey
DeGolier, as well as Alexander and the assistant plant
manager, Al Harris . He was encouraged by management
to pursue his interest in this respect . For example , Super-
visor DeGolier demonstrated the numerical control ma-
chine called the "Mazak," giving Clark a copy of the
manual. Apparently this led to disappointment, when
DeGolier informed Clark that an employee hired after
Clark had been transferred to the day shift to begin
training on the "Mazak."
The first real opportunity for Clark to formally de-
clare his interest in this respect arose on 6 January, when
the Company posted job vacancies. This represented the
initial bidding since Clark's hire. Of the four jobs posted
on that occasion, only one involved a computerized ma-
chine. That job drew eight bids. It was the only position
bid by Clark. Needless to say, his seniority was too limit-
ed and the competition too intense; he did not get the
job.
A second round of bidding on new vacancies was later
scheduled for Monday, 13 January. The events of that
day are central to the defense. That evening Alexander,
with knowledge that Clark was a disappointed bidder,
made a personal effort to preserve Clark's interest in
seeking other jobs. He approached Clark at the latter's
work station, offering to show Clark certain machines
that would be put up forbid that evening. In accepting
Alexander's offer, Clark indicated that he felt useless
running the machines that he had been assigned to,
8 See G.C Exh. 5, p 12.
4 See G .C Exh. 2
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adding that he had a toolbox worth $500 to $700 just sit-
ting collecting dust.5 -
Alexander first showed Clark a "five spindle" ma-
chine. Clark apparently displayed 'a lack of enthusiasm
for -this. job by stating that an employee with several
years seniority was expected to bid on it. Alexander then
took him to the "eight-spindle" machine. While Alexan-
der - was showing Clark the equipment, the operator
thereof asked Alexander a question. When the latter re-
sponded, a conversation ensued, whereupon Clark simply
walked off, returning to his workplace.
Alexander testified, in this instance, believably, that his
conversation with the operator was short, and when he
discovered that Clark had left, he was outraged.6
On the basis of this incident, and despite Foreman De-
Golier's positive evaluation of Clark, Alexander claims
to' have reached the following conclusions with respect
to Clark:
John had a poor attitude, didn't take interest,
he was finished as far` as I was concerned , unless
something really great that he did during the week
he was finished.
That evening, Clark worked the balance of his shift
apparently without incident. In the course thereof he
registered unsuccessful bids for two jobs.7
Despite Alexander's reaction, not only did Clark con-
tinue to work, but at no time did Alexander, or any
other supervisor, -discuss with Clark or call his attention
to any impropriety in his conduct of 13 January. The
next day, Tuesday, 14 January, at approximately 3:45
p.m., Clark initiated a conversation with John Baxter, the
president of Local 1286. Baxter was off duty. Clark was
working. - His machine was in full operation. Clark
quizzed Baxter about` (1) job bidding procedure; (2) the
Company's financial assistance policy concerning the
purchase of safety boots; (3) participation in the credit
union; (4) eligibility for health insurance benefits; and (5)
The foregoing is based on the testimony of Clark. Alexander gives a
slightly different version. He claims that Clark stated that "if he did not
get, a NC, that be might as well take his tools home." Although Alexan-
der did not impress me as entirely trustworthy, it is entirely possible that
in this instance he provided an honest recollection of either what was
said, heard, or understood. Note that according to Foreman DeGolier,
immediately after the incident in question , Alexander informed him of his
anger at Clark, while repeating that Clark had stated that "he would take
his tools and go home, if he didn't get an NC." Quite plainly, this version
is more offensive than that related by Alexander. In any event, the con-
flict derives significance from further testimony by Alexander that he
took umbrage at Clark 's comment . Considering Alexander's own version
of the remark , together with his testimony that he "did not show any
outward ' signs of reaction to this," I am convinced that he recognized
Clark's statement for what it was-an appeal in support of advancement
and not an, attempt to demean his job or management Alexander's at-
tempt to portray his reaction to the remark differently was so strongly
disbelieved as to lessen confidence generally in his reliability as a witness.
6 Foreman DeGolier confirmed that shorly after the incident, he was
confronted by Alexander who inquired as to the whereabouts of Clark,
explaining-that while he was showing Clark around , Clark walked off.
Alexander remarked to DeGolier that he was "pissed-off," -commenting
that Clark had said that he would take his tools and go home if he did
not get a numerical control job. When DeGoier told Alexander that he
had experienced no trouble with Clark and that he was a good worker,
Alexander stated that as far as he was concerned Clark was "done." De-
Golier indicated that he did not agree that Clark should be let go
7 See G.C. Exh. 7(b).
the Company's practice of requiring two different ma-
chines to perform simultaneous operations on a particular
wrench. .
Alexander observed them, but testified that at first he
thought nothing of it and continued - on making his
rounds through the plant. According to Alexander, later,
when he observed that the conversation was continuing,
he approached, inquiring about whether there were any
problems . At the time, Clark and Baxter were discussing
the drilling and deburring required under the Respond-
ent's manufacturing scheme with respect to the "sucker-
rod wrench."6
Throughout the conversation, Clark was working, run-
ning back and forth to and from his machine to tend the
parts being cut. It does not appear that Alexander criti-
cized or made any comment concerning the appropriate-
ness of this arrangement.
The complaint alleges that in the course of this ex-
change the Respondent violated Section 8(aXl) of the
Act through an alleged remark by Alexander that ques-
tions concerning wages, hours, and working conditions
should be addressed to the Respondent and not to union
representatives, In support, Baxter claims that on Alex-
ander's arrival, he informed Alexander that Clark was
asking about health insurance, wrench handles, and some
other things. In response, Alexander allegedly ,stated,
"[t]hat these were things that he should be asking his su-
pervisor." Clark failed to testify to any such remark and
it does not appear that any such, comment was carried
beyond Baxter.9 Baxter, however, on cross-examination,
confirmed that as Alexander approached he and Clark
were discussing' the procedure for processing the
"wrench handles" that required two operations at once,
running two different machines. At the time, Baxter ad-
mittedly was studying the route sheet describing the
manufacturing process. This, according to Alexander;
was the limited focus of his remark. Thus, he testified
that it was during their reference to the drilling and de-
burring route within the wrench manufacturing cycle
that he told Baxter that questions of this nature should
be addressed to the foreman. In this instance, I am in-
clined to give benefit of the doubt to Alexander. Baxter's
capacity for recollection of detail was unimpressive. In
any event, neither version suggests anything beyond a
passing, innocent expression of opinion, _as distinguished
from a remark having any mandatory connotation. Be-
cause Alexander was addressing an issue that obviously
had been raised by Clark, if an "instruction" were in-
tended, he certainly would have sought out Clark to
"direct" him about the appropriate procedure. Thus,
Baxter's account merely evidences a remark that was
subject to evaluation as an expression of viewpoint not
phrased as instruction or direction or having any tenden-
cy to impede employees' in the' exercise of rights guaran-
8 Apparently, Alexander participated in a discussion concerning a pos-
sible bid on a Mazak machine; informing Alexander that if he,` had the
requisite seniority there should be nothing to prevent him from securing
such ' a position. -
9 Clark, while moving back and forth' between his machine, perhaps
did not hear the entirety of what transpired between Baxter and Alexan-
der
TRICO INDUSTRIES
teed by the Act-10 Moreover, on the credited testimony
of Alexander, it is clear that his comment was addressed
to a manufacturing method or process, an area of acute
familiarity to supervision. He was free to make that point
without offending statutory interests . There being no in-
dication that the production process involved was
viewed by Clark as impacting on him adversely, or that
he intended to grieve or complain about it, Alexander's
remark was a perfectly legitimate expression that a re-
quest for information concerning work flow-procedures
be addressed to those responsible for the initiation and
implementation of that process. Accordingly, the Re-
spondent did not in this respect violate Section 8(a)(1) of
the Act. -
Alexander does not appear to have manifested any
degree of hostility toward the Clark/Baxter conversation
of 14 January. However, at the start of the second shift
on Wednesday, 15 January, Alexander again observed
Clark and Baxter in conversation. On this occasion,
Baxter approached Clark to deliver a union calendar and
to express his opinion about possible health insurance
coverage of a pregnancy in Clark's family. Workwise,
Clark, at the time, had completed his first "part" and had
turned off his machine to take the part to his foreman for
inspection. This time it was with immediacy that Alexan-
der approached them, angrily asking what the problem
was, stating "we don't want to start any bad work
habits." On that note, all three went their separate ways.
Later that day, according to Alexander, he discussed
Clark with Walt Harris, and recommended as follows:
Nothing good is ' going to happen with this fellow,
he's engaged in poor work habits now and tomor-
row's pay-day we might as well do it [terminate
Clark] tomorrow.
Harris reportedly was in total agreement . 1 Accordingly,
when Clark reported to work at 3:30 p.m. on Thursday,
16 January, he was not given his regular assignment, but
was instructed to report to Alexander. In their meeting,
Alexander expressed dissatisfaction as to Clark's "initia-
tive," while also criticizing Clark's "attitude." Clark was
informed that he would be let go as Harris and Alexan-
der did not feel it was going to work out for him. Clark
then became provocative to the point of inviting Alexan-
der to discuss the matter "outside."12 The termination
10 The Board's recent decision in Tenn-Tom Constructors, 279 NLRB
465, 469 ( 1986), is inapposite . In that case, an 8(a)(1) violation was found
when employees as a group were confronted and told by a general fore-
man that "from then on they should bring their problems to him." Tins
"direction" under the circumstances was distinguishable from the off-the-
cuff expression of opinion passed on by Alexander to Union President
Baxter, apparenty beyond earshot of Clark and any other employees. The
evidence here shows that the remark was neither intended to establish a
standard , nor conveyed as a direction , instruction rule, or policy. An-
other case, R.J. Liberto, Inc., 235 NLRB 1450, 1451, 1453 (1978), is distin-
guished on the same ground.
I Subsequently, Harris was discharged from the Respondent's employ
and apparently was unavailable to testify.
12 The above is based on testimony of Alexander. Clark testified that
he was told that things were not working out and that they were going
to let him go because he "[D]idn't seem to be interested in job bids"
Clark denied that any other reasons were offered in explanation of the
discharge . The conflict need not be resolved.
851
form, completed by Alexander defined the reason for dis-
charge as "poor attitude & lack of-initiative."13
On analysis it should be apparent from the foregoing
that Clark's conversations with Union President Baxter
furnish the only causation possibly warranting statutory
intervention. If protected by Section 7, and if the Gener-
al Counsel has shown that those incidents were at least
"a" motivating factor in the decision to discharge Clark,
under the Board's Wright Line test,14 the burden will
shift to the Respondent to convincingly demonstrate that
it would-have taken the same action against Clark even if
those conversations had not occurred.
The threshold issue is whether the Baxter/Clark en-
counters constituted activity protected by Section 7 of
the Act. Both occurred while Clark -was on duty and
supposedly working. During that which occurred on 14
January, Clark admittedly was running back and forth
from his machine some 5 feet away. Though witnessed
by Alexander, he voiced no objection to Clark's dual in-
volvement at that time. In the second conversation, ac-
cording to Clark, he had just completed his first unit of
production, had turned his machine off, and was prepar-
ing to take the part to Foreman DeGolier for inspection
when Baxter appeared. On this occasion, Alexander did
caution against "poor work habits."
As an abstraction, discussions between, a union repre-
sentative and an employee concerning terms and condi-
tions of employment entail assertion of a fundamental
statutory right. Section 7 of the Act fosters the right of
employees to know 15 and obligates union agents to edu-
cate,16 as essential links in the representational scheme
whereby benefits are negotiated, identified, and pursued.
Inquiries concerning benefits as a preliminary to griev-
ance activity is indispensable to, and hence "reasonably
directed toward the enforcement of a collective bargain-
ing right." NLRB v. City Disposal Systems, 465 U.S. 822
(1984). Any interpretation 'that would allow management
to terminate with impunity those who participate in such
exchanges would seriously undermine this phase of the
overall congressional scheme.
At the same time, however, the Act does not interfere
with management's rights to assure through reasonable
restrictions that employee interests are asserted under
conditions that do not impede production and efficiency.
For many years the idea that "work time is for work"
has provided a helpful reference in the attempt to recon-
cile the tension between employee rights in this area and
the right of employers to maintain discipline. See, e.g.,
Peyton Packing Co., 49 NLRB 828, 843 (1943); Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 803 fn. 10 (1945);
Our Way, Inc., 268 NLRB 394 (1983). This does not
mean, however, that all employee activity on working
time is beyond the protective mantle of the Act.17 Board
13 See G.C. Exh. 4.
14 Wright Line, 250 NLRB 1083, 1089 (1980); NLRB x Transportation
Management Corp., 462 U S. 393 (1983).
16 "[T]he Act protects an employee in seeking the advice and assist-
ance of a union steward ...." See Tenn-Tom Constructors, supra at 465.
16 The duty of fair dealing imposed by the Act on labor organizations
includes the obligation "to inform employees about the terms and condi-
tions that could affect there employment." See Teamsters Local 896 (An-
heuser Busch), 280 NLRB 567 (1986).
17 See, e.g., PPG Industries, 251 NLRB 1146, 1168 (1980)
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
precedent strongly suggests-that when an employer has
failed to adopt and publish a valid rule regulating union
activity during working time, discipline for that reason
will be upheld as lawful only when the employer demon-
strates' that it acted in response to an actual interference
with, or disruption of work. See, e.g., Zack Co., 278
NLRB 958 (1986), Chairman Dotson dissenting on other
grounds; 'Greensboro News Co., 272 NLRB 135, 138
(1984); Fotey-Wismer'& Becker, 263 NLRB 793 (1982);
Selwyn Shoe Mfg. Corp., 172 NLRB 674, 676 (1968). Con-
sistent therewith, the Board has stated that "A'discharge
based on work time ... [activity] ... in the ' absence of
a valid rule is suggestive that the employer was reacting
to the protected aspect of the employee's conduct, rather
than considerations of plant efficiency." Greentree Elec-
tronics Corp., 176 NLRB 919 (1969). In other words,
when there is no published rule regulating working time,
the assumption is that the employer tolerates incursions
until they reach disruptive levels.1111
In this case, plant policy, regulating working time is
evident in both the employment manual maintained by
the Respondent and,the negotiated collective-bargaining
agreement. `Insofar as relevant, the latter recites as fol-
lows:
. There shall be no solicitation for union mem-
bership' or -collection of union dues or other pay-
ments on Trico time. Nor shall there be any other
union activity on Trico time that will interfere with
production or violate Trico's rules with regard to
visiting ' between' departments in the plant.'9
The Respondent's published employment guide offers
a further restraint,' as follows:
Engaging in excessive conversation or in any way
disturbing or interfering with the work of other em-
ployees is prohibited.2°
Beyond the foregoing, the Respondent has not communi-
cated that employee participation in'union or.other activ-
ity during their working time is restricted or might result
indiscipline.
As the published rules imply, the Respondent does not
ban all idle conversation between employees during
working time. Moreover, personnel- records fail to reflect
a single incident in which an employee was warned or
otherwise disciplined for engaging in excessive conversa-
tion or any conduct resembling Clark's role in the con-
versations with Baxter on 14 and 15 January.21 While a
conversation when one should be working is commonly
regarded as "a bad work habit," no claim is made by the
Respondent that any published rule was violated by the
conversations in question or that an interference with
1s In contrast a properly phrased, published, nondiscriminatory rule
will be deemed presumptively lawful since inherently necessary to the
maintenance of production and discipline . As'in the case in which no rule
exists, specific proof of justification is required when the published re-
strictions are overly broad and extend to nonworking time . See, e.g.,
Stoddard-Quirk Mfg. Co, 138 NLRB 615 (1962).
19 See G.C. Exh. 5, art. II, p. 7
E0 See the it Exh. 1, item 7(c), p. 9.
81 See R. Exhs. 1-10, and 12 inclusive
production resulted. In these circumstances, the record
does not' warrant a finding that Clark's attempt to ascer-
tain his employment rights ' lost protected status because
asserted on working time. -See, e.g., international Pack-
ings Corp., 221 NLRB 479, 482 (1975).
The question remains about whether in accordance
with Wright Line, supra, a, finding is -warranted that
Clark was discharged for this reason. There can be little
dispute that the timing of Clark's termination was influ=
enced by his conversations with the union president. Al-
exander conceded as much on cross-examination by the
General Counsel, -as follows:
Mr. Franckiewiez: So, on January 13th you did
not decide to discharge him on the spot?
Mr. Alexander: No. I decided to discharge him
on the spot, unless he showed me something really
spectacular.
Q. And assuming that he did not show you some-
thing spectacular, the discharge would be effective
when?
A. The end of the week.
Q. Friday?
A. Friday, normally. It's, not a normal procedure
to discharge people around Trico Industries.
Q. Friday was the 17th of January, is that cor-
rect?
A. Yes. - -
Q. You discharged him after you saw him speak-
ing to the union president on two consecutive days?
A. I discharged him after I saw him displaying
poor work habits for two days in a row.
Q. Which in fact consisted of him talking to John
Baxter?
A. No matter who he was talking to, he was dis-
playing poor working habits.
Q. What he was in fact doing was talking to John
Baxter, is that correct?
A. That's correct,
Q., On those two particular days did he demon-
strate poor work habits in any manner other than
by being observed conversing with Baxter?
A. It wasn't, the fact that he was conversing with
Baxter, it was the fact that he was operating on the
first day a piece of equipment and he r was trying to
run back and forth between his equipment, John
Baxter, and even myself. You can't successfully op-
erate equipment on that basis over,long periods of
time. And I ,don't expect probationary employees to
display poor work habits like that. And, it's just'not
acceptable.
Q. Was there- anything, now, you observed 'him
on Tuesday with Baxter?
A. Yes, sir.
Q. You observed him on Wednesday with Baxter
for a period of time?
A. Yes.
Q. So as a result- of what you, observed on Tues-
day and Wednesday, you:excellorated [sic] the dis-
charge decision.
TRICO INDUSTRIES
A. That would be a fair statement.
Considering the hostility with which Alexander greet-
ed Clark and Baxter on 15 January , together with the
sudden discharge of a good worker the very next day in
the midst of a payroll period ,,22 it is concluded that Al-
exander's admission in the above colloquy is sufficiently
indicative of a union-related causation to compel the Em-
ployer to come forth with evidence that Clark would
have been terminated even if the protected conversations
had not occurred.23
The defense depends vitally on Alexander 's testimonial
account of his state of mind in effecting the discharge. In
examining whether an "employer has met its burden
under Wright Line, the Board does not "rubber stamp"
such testimony without scrutiny , Instead , the, assigned
reason for the discipline will be carefully examined for
internal consistency and logical acceptability . See Heck%
Inc., 280 NLRB 475 (1986). When considered in that
light, Respondent's case is unpersuasive.
First it is noted that personnel records bear out Alex-
ander's admission that discharge is not "normal proce-
dure" at Trico. Only eight employees suffered such a
fate during the 6 years prior to Clark's termination. Half
were based on attendance . (See It . Exhs; 1, 3, 4, and 6.)
The remainder were founded on the employee 's lack of
suitability to perform the work. (See A . Exhs . 7, 8, 9,
and 10.)
Concerning the specific grounds assigned , Alexander's
admission that the Clark/Baxter conversations gave im-
petus to the discharge did not fit the umbrella of "initia-
tive" or "attitude" and presented a marked shift from his
original description of the reasons for the discharge.
Indeed, the details about Alexander 's dissatisfaction with-
Clark's attitude are not clearly defined, but, left to con-
juncture . In any event, critical to the defense is Alexan-
der's testimony that Clark 's fate was virtually sealed on
13 January in consequence of his remark concerning his
tools,24 the fact that he merely bid one job on 6 January,
and his having walked away from Alexander, at the
eight-spindle machine. Despite DeGolier 's defense of any
professed , evaluation of Clark as a good employee, Alex-
ander testified that on this basis he elected to terminate
22 Although Alexander's admission makes this element somewhat cu-
mulative, the fact that Thursday was payday would not alter the suspi-
cion generated by the midweek discharge . Respondent's payroll period
ends on Friday. Thus the Thursday termination failed to serve manage-
ment's convenience. As is clear from testimony of both Clark and Alex-
ander, the check given Clark that day was not his final paycheck, but
only covered the "last full week of work."
23 The fact that the General Counsel has failed to prove that the Re-
spondent held an overarching or general union animus is by no means
fatal to its case. The unlawful motive sought to be proven here does not
rest on the Employer's attitude toward union membership or unionization
as an institution . The fact that an employer might accept collective-bar-
gaining does not necessarily mean that it welcomes every vestige of
union activity, including those to which managers might understandably
take affront. Quite clearly , the General Counsel 's position with respect to
the discharge of Clark is founded on Alexander 's reaction to Clark's suc-
cessive conversations with a union official , rather than any concern for
Clark's basic allegiance.
24 As heretofore indicated, Alexander's testimony that he took offense
at this remark was not believed . In any event, I have difficulty reconcil-
ing Alexander's position in this regard with his accusation that Clark's
lack of initiative was demonstrated by his disinterest in other jobs.
853
Clark on Friday if he did not show some spectacular
achievement or "complete turnabout" during the balance
of the week. When questioned, however, about just what
he expected of Clark, he indicated as follows:
Well, if he'd made double ,rate for a day, or had
come and said to me, that he really was interested
in the machines, or that he had had other things on
his mind yesterday, and that he was -sorry, you
know, that he was rude and walked away from me,
and that he was interested in the machines and the
other things.
If something like that would have happened, I
-probably would have ,changed my mind.
Several undeniable facts of record show that the-forego-
ing constituted little more than a transparent dodge to
obscure the reality that Clark was not discharged on 13
January because Alexander, did not regard Clark's con-
duct that evening as a justifiable basis for discharge. That
conclusion, together with the fact that the protected ac-
tivity of 14 and 15 January furnished the decisive stroke
was evident not only in Alexander's reference to "poor
work habits" in his 15 January recommendation to
Harris, quoted above, but from his conduct during the
balance ,of that week.
Alexander neither warned, counseled, nor otherwise
alerted Clark to the possibility that Alexander considered
him to have been guilty to, misconduct on 13 January.
Simply put, despite several confrontations between -them
prior to the discharge, the matter was never even
broached. In this light, it is particularly difficult to un-
derstand how Alexander could have expected an apol-
ogy.
Also lacking was any followup prior to the discharge
to ascertain whether-Clark had met Alexander's alleged,
secretly held demands. First, Alexander, not, being the
immediate supervisor of Clark, was not in a position to
evaluate routinely, the latter's performance. Prior to the
discharge, he had no way of knowing and made no
effort to check Clark's productivity. 2 5 Moreover, as, the
discharge occurred on Thursday, 15`January, Clark,was
preempted from working that day and on Friday, the last
day o€ the payroll period, and hence Clark was denied
the balance of the workweek to rejuvenate himself as Al-
exander claims to have intended.
As for Clark's attitude toward the machines, which,
according to Alexander established his "lack of initia-
tive," Alexander admittedly, did not check or know
whether Clark on 13 January had bid on additional jobs.
In fact, that evening Clark bid'two of the five jobs that
were posted on 13 January. (See the G.C. Exh. 7(a).)
This reflected a greater interest in advancement than,
shown by any of the other probationary employees on
payroll status at the time.' (See the G.C. Exh. 6.) More-
over this asserted, ground for discharge is difficult to
reconcile with the fact that the Respondent maintains no
requirement that employees bid, on jobs. Finally, all the
25 It is noteworthy that the record fails to suggest that Clark had any
type of productivity problem. DeGolier's rating of him implies that there
was no such problem.
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence in this record reflects that Clark's difficulty
stemmed from his strong desire for, rather than any in-
difference toward advancement.26
It is true that an employer may judge employees
during their probationary period with greater stringency
and perhaps even' less rationality than that which obtains
in the case of permanent employees. Nonetheless, proba-
tionary employees are entitled to no less protection
under the Act. In either case, the issue will turn on the
true motive for the discipline.
Alexander's' rage on 13 January was perfectly under-
standable. However, his silence concerning the matter,
the delay in acting on it, and the fact that the incident
did not refute DeGolier's evaluation of Clark as a good
worker, combine to suggest that explanation for the dis-
charge' lay elsewhere. All credible proof points to the
fact that Alexander, irritated with Clark's consecutive
conversations with Baxter, lost control, and precipitously
terminated him. From Alexander's own testimony, it is
apparent that' if any preconceived formula for preserva-
tion of Clark's job existed it was abandoned after those
developments. Thus, despite his alleged plan to give
Clark until Friday to prove his metal, the-discharge oc-
curred at shift-start on Thursday, cutting the workweek
short by 2 days. More importantly, after the supervening
events of 14 and 15 January, Alexander lost interest in
any "spectacular" achievement on Clark's part and opted
for discharge without verification or knowledge of
Clark's subsequent performance. Had Alexander shown
any interest he would have learned at a minimum that
the asserted lack of'initiative on Clark's part was impos-
sible to reconcile with the Respondent's own records,
which demonstrate that as of `15 January, Clark had bid
more jobs than any other probationary employee.
Simply put, the Respondent's assertions concerning
lack of initiative are incomprehensible on the face of this
record. This, together with vagaries engulfing Clark's al-
leged unsatisfactory "attitude" tend to confirm the em-
pirical causative influence generated by Alexander's re-
newed anger at the conversations between Clark and the
union president. In this light and on the total record, it is
concluded that the Respondent has failed to persuade
"by a preponderance . . . that -the same action would
have taken place even in the absence of union activity."
Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984);
Centre Property Management, 274 NLRB 190 (1985). For
26 In a further attempt to deflect attention from the events of 14 and
15 January the Respondent argues that a report from two employees,
Giordano and Ackley, influenced Alexander's decision to terminate
Clark. The, assertion, however, was not substantiated by Alexander. The
report apparently originated with Giordano, who claims to have heard
Clark complain in the men's room about the Company's bidding proce-
dure while stating, that the Company "sucked." According to Giordano
and Ackley, Giordano ,reported the remark to Ackley, who, later in-
formed Ackley's brother-in-law, Alexander. On behalf of the Respondent,
it is argued that on receiving his information from Ackley Alexander
elected to finalize the termination. Alexander, on the other hand, appears
to deny that this was the case. Although one would expect Alexander to
enjoy full command of the basis for his actions, Alexander could not
recall whether he received the reports before or after the discharge.
Indeed, he related that on matters of this kind, he does not rely on input
from coworkers. From the testimony of Alexander, it is impossible to
conclude that these reports had any relevance to the issue of motivation
in this case.
these reasons , as Clark's inquiry to the union official con-
stituted union activity of a protected nature, it is con-
cluded that-the Respondent violated Section 8(a)(3) and
(1) of the Act by discharging him on 16 January 1986.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging employee John Jay Clark on 16 Jan-
uary 1986 because, he engaged in union activity the Re-
spondent engaged in, and is engaging in, an unfair labor
practice within the meaning of Section 8(a)(3) 'and (1) of
the Act.
4. The unfair labor practice found above constitute an
unfair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor-practice, it shall be recommended that it
be ordered to cease and desist therefrom, and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent, having discriminatorily discharged
John Jay Clark, shall be ordered to offer him reinstate-
ment and make him whole for any loss of earnings and
other benefits by reason of the discrimination against
him. - Backpay shall be computed on a quarterly basis
from the date of discharge to the date of a proper offer
of reinstatement, less net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter-
est as computed in Florida Steel Corp., 231 NLRB 651
(1977).27 It also -shall be recommended that the'Respond-
ent be required to remove from its records and files all
reference to the discharge, notifying Clark in writing
that this has been done and' that the discharge will not be
used against him in the future.
The General Counsel's request for a visitatorial clause
is denied as there is no showing that such -relief is war-
ranted in the circumstances of this case. See O. L. Willis
Co., 278 NLRB 203 (1986); Nathan's Furniture Store, 278
NLRB 268 (1986); and Rebel Coal Co., 279 NLRB 141
(1986).
On these findings of fact and conclusions of law and
on the entire record,, I issue the following recommend-
ed28
ORDER
The Respondent, Trico Industries, Inc., 'Bradford,
Pennsylvania, its officers, agents,, successors, and assigns,
shall -
27 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
28 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and -Regulations, the findings, conclusions , and recommended
Order shall, as provided in See. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
TRICO INDUSTRIES
1. Cease and desist from
(a) Discouraging membership in a labor organization
by discharging or in any other manner discriminating
against employees with respect to wages, hours, and
terms and conditions or tenure of employment.
(b) 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) Offer John Jay Clark immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his other rights and privileges, and make him whole for
any loss of earnings .and benefits suffered as a result of
the discrimination against him, in the manner set forth in
the remedy section of this decision.
(b) Remove and delete from its files any reference to
the unlawful discharge of John Jay Clark and notify him
in writing that this has been done and that the discharge,
in the future, 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 pay-
855
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facilities in Bradford, Pennsylvania,
copies of the attached notice marked "Appendix."29
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
29 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."