Tubular Corp. of America

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 99 (N.L.R.B. 2001)

TUBULAR CORP. OF AMERICA 99
Grant Prideco, L.P. d/b/a Tubular Corporation of
America and Billy Knott. Case 17–CA–20883
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On June 15, 2001, Administrative Law Judge Jane
Vandeventer issued the attached bench decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
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,1 and conclusions and
to adopt the recommended Order as modified.2
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by suspending and discharging
employee Billy Knott because of his union and protected,
concerted activities. In its exceptions, the Respondent
contends that there is no evidence that it harbored union
animus and that the judge erred in inferring an illegal
motive. We find no merit in this contention.
It is well established that a discriminatory motive may
be inferred from circumstantial evidence and the record
as a whole, and that direct evidence of union animus is
not required. Fluor Daniel, Inc., 304 NLRB 970 (1991);
Abbey’s Transportation Services, 284 NLRB 698, 701
(1987), enfd. 837 F.2d 575 (2d Cir. 1988); U.S. Soil
Conditioning Co., 235 NLRB 762, 764, and fn.10 (1978),
enfd. 606 F.2d 940, 948 (10th Cir. 1979). See also Davis
Supermarkets v. NLRB, 2 F.3d 1162, 1168 (D.C. Cir.
1993), cert. denied 511 U.S. 1003 (1994). Here, the
judge found no direct evidence of union animus, but in­
ferred an unlawful motive based on a variety of circum­
stances. These circumstances included the suspicious
timing and disparate nature of Knott’s discipline, the
unprecedented scope of the Respondent’s investigation
of Knott, the absence of a cogent reason for conducting
such an investigation, the failure to afford Knott any op­
portunity to answer the allegations raised by the investi­
gation and, last, the fact that the Respondent’s behavior
was inconsistent with its progressive discipline system
and its past practice. Such circumstances have repeat-
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative 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 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
edly been found adequate to infer discriminatory motiva­
tion. See, e.g., Goodman Forest Industries, 299 NLRB
49, 55 (1990); Birch Run Welding, 269 NLRB 756, 764–
767 (1984), enfd. 761 F.2d 1175 (6th Cir. 1985); and
U.S. Soil Conditioning, supra. Accordingly, we find that
the judge properly relied on these circumstances to infer
Respondent’s antiunion motive here.
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Grant
Prideco, L.P. d/b/a Tubular Corporation of America,
Muskogee, Oklahoma, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
Substitute the following for paragraph 2(d).
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents , all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
Charles Hoskin Jr., Esq. and Francis Molenda, Esq., for the
General Counsel.
R. Michael Moore, Esq. (Fulbright & Jaworski), and Douglas
Cole Grijalva, for the Respondent.
BENCH DECISION
STATEMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This case
was tried on April 24 and 25, 2001, in Muskogee, Oklahoma.
The complaint alleges Respondent violated Section 8(a)(1) of
the Act by informing its employees that it would be futile to
select the Union as their representative. The complaint also
alleges Respondent violated Section 8(a)(3) by restricting em­
ployees’ use of a metallurgy lab cart, suspending its employee
Billy Knott, and discharging its employee Knott. On April 26,
2001, after hearing oral arguments by counsel, I issued a Bench
Decision pursuant to Section 102.35(1)(10) of the National
Labor Relations Board’s Rules and Regulations, setting forth
findings of fact and conclusions of law.
I certify the accuracy of the portion of the transcript, as cor­
rected,1 pages 210 to 240, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
Exceptions may now be filed in accordance with Section
102.46 of the National Labor Relations Board’s Rules and
1 I have corrected the transcript containing my Bench Decision and
the corrections are as reflected in the attached appendix B [(omitted
from publication)].
337 NLRB No. 13
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regulations, but if they are not timely or properly filed, Section
102.48 provides that my Bench Decision shall automatically
become the National Labor Relations Board’s Decision and
Order.
CONCLUSIONS OF LAW
1. By suspending and discharging its employee Billy Knott,
Respondent has violated Section 8(a)(3) of the Act.
2. The violations set forth above are unfair labor practices af­
fecting commerce within the meaning of the Act.
3. Respondent did not otherwise violate the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be required to cease
and desist therefrom and to take certain affirmative action nec­
essary to effectuate the policies of the Act.
I shall also recommend that Respondent be ordered to re-
move from the employment records of Billy Knott any nota­
tions relating to the unlawful action taken against him and to
make him whole for any loss of earnings or benefits he may
have suffered due to the unlawful actions taken against him, in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in accordance with 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 recommended2
ORDER
The Respondent, Grant Prideco, L.P. d/b/a Tubular Corpora­
tion of America, Muskogee, Oklahoma, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Suspending and/or discharging employees because of
their support for a union or their concerted protected activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2.Take the following affirmative action necessary to effectu­
ate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Billy
Knott full reinstatement 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 privileges previ­
ously enjoyed.
(b) Make Billy Knott 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 this deci­
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension and discharge
of Billy Knott, and within 3 days thereafter notify the employee
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur­
poses.
in writing that this has been done and that the suspension and
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 pay-
roll records, social security payment records, timecards, per­
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or­
der.
(e) Within 14 days after service by the Region, post at its
Muskogee, Oklahoma location copies of the attached notice
marked “Appendix C.”3 Copies of the notice, on forms pro­
vided by the Regional Director for Region 17, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent 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 al­
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate 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
ince June 17, 2000.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX A
210
JUDGE VANDEVENTER: On the record.
Pursuant to the Board’s rule concerning bench decisions,
which is included in Section 102.35(a)(10) of the Board’s rules,
as the parties know, I intend to deliver a bench decision under
that rule.
I just want to preliminarily remind the parties that, after re­
ceiving the transcript, when a bench decision is rendered, I will
correct any errors that appear in the transcript and only then
certify the accuracy of it after it has been corrected and, when
that certification and, essentially, written version of the tran­
script is released by me, only then does the time for filing of
exceptions begin to run. So it does not run from today’s date,
but only when the written version of the transcript and the
bench decision is issued by me, which probably will not, since I
don’t get the transcript for a couple of weeks, will certainly be a
little beyond a couple of weeks, but I just wanted to make sure
that all parties are aware of
211
that—of that rule. Okay.
3 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Na­
tional Labor Relations Board.”
TUBULAR CORP. OF AMERICA 101
212
BENCH DECISION
JUDGE JANE VANDEVENTER: The name of this case on the
complaint was Tubular Corp., a/k/a Grant Prideco. Based on
representation of counsel and other testimony of management
witnesses, I will make an amendment. Preliminarily, a
statement of the case.
The case has been tried on April 24th and 25th, 2001, here in
Muskogee, Oklahoma upon a charge filed by Billy Knott in
October of 2000. A compliant was issued, alleging that Re­
spondent had violated Section 8(a)(1) of the Act by informing
its employees that it would be futile to select the union as their
representative, and the complaint also alleged that Respondent
had violated 8(a)(3) by restricting employees’ use of a lab cart
in the metallurgy lab and later discharging employee Knott.
Respondent has filed an answer denying the essential allega­
tions of the complaint. The parties have made oral arguments
and, based on the testimony of the witnesses, including, par­
ticularly, my observation of their demeanor while testifying and
the documentary evidence and the entire record, I will make the
following Findings of Fact.
FINDINGS OF FACT
First, with regard to jurisdiction, Respondent, whose correct
name is Grant Prideco, LP, d/b/a Tubular Corporation of Amer­
ica, is a limited partnership that does operate Tubular Corpora­
tion Division in Muskogee,
213
Oklahoma where it’s engaged in the manufacture of tubular
products for the petroleum and gas industries.
During a representative one year period, Respondent pur­
chased and received at its Muskogee, Oklahoma facility goods
valued in excess of $50,000.00 directly from points outside the
State of Oklahoma.
Accordingly, I find, as Respondent admits, that it is an em­
ployer engaged in commerce within the meaning of Section
2(2),(6) and (7) of the Act.
And, just to be absolutely certain that we’ve got the name
correctly, it’s Grant Prideco, LP, d/b/a Tubular Corporation of
America.
Background
Turning first to a brief background, Mr. Billy Knott, it is un­
contradicted, is an employee and has been or was employed
from approximately May of 1997 through June of 2000. He
was employed by Tubular Corporation, the Respondent, which
manufactures metal products and, in doing so, maintains a met­
allurgical lab where various tests on the manufactured product,
such as tensile strength and composition, are performed.
For a little over the two and a half years prior to his dis­
charge, Mr. Knott worked in the metallurgical lab as a lab tech­
nician.
In June of 2000, approximately the 6th, Mr. Knott began
214
talking with other employees about certain issues in the work-
place, such as the company having ceased to pay bonuses to
older employees or long-standing employees, whereas new
employees were still receiving bonuses, and some increases in
employee paid insurance costs.
After discussing these issue with employees,—and these
facts are largely undisputed—Mr. Knott, with his supervisor’s
knowledge, called the human resources manager, Jane
Broughton, and relayed these employee concerns to her and it
was arranged between them that a meeting would be held to
discuss the issues. A meeting was held, in fact, the following
morning on June 7th, at which approximately 25 employees
and managers, Broughton, as well as Dave Weigle, the plant
manager, and Russell Smith, the department head, were pre-
sent.
At that meeting, several employees asked questions. Mr.
Knott certainly asked questions, as well. He raised employees’
questions concerning the bonuses that were not being paid older
employees, but were being paid to newer employees. Mr. Wei­
gle answered with the company’s concern on that issue. Mr.
Knott suggested increased wages across the board for all em­
ployees, which, according to his testimony, which was uncon­
tradicted, was not answered. Other issues were discussed at the
meeting, but, certainly, it is not contradicted that these ques­
tions of bonuses, wages, and other working conditions were
discussed.
215
After the meeting, Mr. Knott continued to talk with employ­
ees about the issues that had been talked about in the meeting
and also suggested that employees might contact a union. In the
presence of another employee and the supervisor, according to
Mr. Ridenhour’s testimony, Mr. Knott did call a union and
attempt to speak with a representative and get a representative
to meet with the employees. There’s no dispute that Mr. Nich­
ols, Clint Nichols, who was Mr. Knott’s immediate supervisor
was aware of these facts.
As pointed out by Mr. Moore in his argument, that much is
undisputed. The fact that Mr. Knott engaged in concerted pro­
tected activities and efforts to call a union is not in dispute.
I turn now to the first allegation in the complaint, which is
paragraph 4, to the effect that Russell Smith informed employ­
ees it would be futile to select the union. Three witnesses ad-
dressed this allegation and Mr. Knott recalled that he had told
the other employees about the union representative’s promise to
return his call, and Clint Nichols and Russell Smith were pre-
sent at sometime during this discussion and Mr. Knott recalled
that Mr. Smith said words to the effect that they tried to get a
union in in the early 1980’s, it didn’t work then, and it won’t
work now.
Mr. Ridenhour, who was also present, recalled that it was
216
an employee—his recollection was that employee Randy Duke
was the one who said essentially these words.
Russell Smith, the supervisor who also testified, recalled that
he’d been involved in a discussion about the unions with the
employees, including with Mr. Knott, but testified that he con-
fined his remarks to his own personal experience with unions in
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the past and denied the specific remarks that had been attrib­
uted to him by Mr. Knott.
With regard to this allegation, I would credit Mr. Ridenhour
and Mr. Smith as to this remark and find that Smith did not
inform the employees that choosing a union would be futile.
Throughout, Mr. Smith was straightforward and pretty much no
nonsense. Mr. Ridenhour’s recollection was completely consis­
tent with his earlier statements. In general, he was a quite
credible witness.
Turning now to the allegation of complaint paragraph 5(a), it
alleged that Mr. Nichols’ restriction of the use of a particular
cart to the lab’s lead man was done in retaliation for the em­
ployees’ union and concerted activities. Just as background to
this, spectroscopist Richard Marrs had secured a cart upon
which to store the samples that he needed to test and positioned
it in a certain way so that his samples, called chemistries in the
record, were on the more convenient side of the cart. He com­
plained a couple of times to supervisor Nichols that the cart’s
position had been altered
217
on the other shift, that is, the shift he did not work.
When supervisor Nichols brought up the issue with Danny
Ridenhour and Billy Knott, and this was during the week of
June 1, 2000, they reasoned with him that the other lab techs,
who used the scrap portion of the cart—the cart had both a
chemistries portion and a scrap portion—the lab techs who used
the scrap portion did so far more often than Marrs used the
chemistry portion and, therefore, it should be positioned more
conveniently for the majority of the employees with the more
convenient side of the cart for scrap. Mr. Nichols agreed and,
once again, a day or two later, Mr. Marrs complained to Mr.
Nichols again and lobbied for his position that the cart should
be positioned so that the chemistries were on the convenient
outer side. Mr. Nichols, swayed by Mr. Marrs’ arguments, on
June 15th told Ridenhour and Knott that the cart would be
placed as Mr. Marrs wanted it, that is, with the chemistries
outermost.
I find that this happened on the 15th. It was simply an an­
nouncement of Nichols’ newest rule regarding the cart as to its
position. The rule was confined to the cart’s position, not to its
use, and it was not an oral discussion or warning or any kind of
discipline.
The next question is whether Nichols’ imposition of the rule
had anything to do with Mr. Knott’s concerted protected activi­
ties and talk about the union.
218
I find that it did not. The evidence shows that Nichols had
been swayed back and forth by the employees who had argued
for the relative rationality of each of their viewpoints. Both Mr.
Knott and Mr. Marrs had advanced their viewpoints and Nich­
ols had been swayed by whoever spoke to him last. Up to this
point, nowhere in Nichols’ conduct is there evidence of any
connection to Mr. Knott’s concerted protected or union activi­
ties. Instead, there is clear evidence that he simply vacillated.
I find that 5(a) is not a violation of 8(a)(3) and I’m going to
recommend dismissal of both paragraph 4 and paragraph 5(a).
I want to turn now to the allegations that really consumed the
major part of this trial, both in evidence and time, and that is
the allegations regarding the suspension and termination of Mr.
Knott, and, by way of background to that, Mr. Knott is a three
year employee with an exemplary record and he had received
regular increases, all except one being the maximum possible.
The maximum possible is a two step jump in the wage spread.
He’d been a lab tech for about two and a half years, or a little
more, at the time of his discharge. Nichols had been his super-
visor for nearly two years of that time, about 22 months. Knott
had had only one warning, which had been expired for months
and months under the Respondent’s policy by the time of June,
2000. Other than that one expired warning, he had a clean
219
record.
It will be remembered that by June 17 Mr. Nichols had done
his second reversal of policy and had told Ridenhour and Knott
to position the cart in the metallurgy lab with the chemistries
outermost, the chemistries being the samples that Mr. Marrs
used. June 17 was a Saturday. Mr. Knott and Mr. Ridenhour
were working on that Saturday. Mr. Marrs was not working.
Mr. Nichols was not working and was, in fact, on vacation and,
apparently, not able to be reached.
It’s undisputed that lab techs use several carts in their regular
work and that there were several of these carts in or around the
lab. Mr. Knott, corroborated by Ridenhour, testified that on
that day, the 17th, he and Mr. Ridenhour were using a lighter
weight cart to transport their test samples and, becoming too
heavily loaded, the wheels of the lighter weight car buckled.
Needing a cart to transport the work, Knott traded out the cart
without wheels for the still usable one which was sitting idle
with chemistries and scrap on its surface.
It is not contradicted that Mr. Knott’s work and Mr. Riden­
hour’s work would be slowed down without the use of a cart to
transport the testing samples.
Following the weekend, that is, on the
following Wednesday, Nichols told Mr. Knott in the morn­
ing not
220
at use the chemistries cart at all. He gave Mr. Knott a warning
notice on which he had written verbal warning. That was the
morning on which, when Mr. Knott explained to Mr. Nichols
the circumstances under which he had used the cart, the only
cart remaining with wheels on it, to forward his work, Mr.
Nichols had written verbal warning on the warning he was
presenting to Mr. Knott. Both Mr. Nichols’ and Mr. Knott’s
testimonies agree in that respect.
Later that day, Mr. Nichols told a larger group of lab techs,
whether it’s all the lab techs who were working that day or not
is not clear, but it was, at least, five or six lab techs, to leave
Marrs’ cart, Richard Marrs’ cart, alone.
I find that that his statement to that effect to Mr. Knott early
in the morning and later the same day to the rest of the lab techs
was the first time he had told the lab techs not to use the cart
used for chemistries at all.
TUBULAR CORP. OF AMERICA 103
Before giving this verbal warning to Mr. Knott, Mr. Nichols
had informed the human resources manager, Ms. Broughton,
about Richard Marrs’ complaint to him. This was before he had
spoken with Mr. Knott about the events of Saturday, the 17th.
Ms. Broughton, apparently, construed Nichols’ announcement
of his latest version of the cart rule on the 15th of June to Mr.
Ridenhour and Mr. Knott as an oral warning, the first step in
Respondent’s disciplinary system, and, without having heard
anything that Mr. Knott might say about the events of the 17th,
221
since he was, apparently, not at work until the morning of the
21st. According to Mr. Nichols, Ms. Broughton and Mr. Nich­
ols agreed that a first written warning was the proper discipline
and Nichols prepared to present that to Mr. Knott. On
Wednesday morning the 21st, after hearing Mr. Knott’s expla­
nation as to why he had traded one cart for the other, Mr. Nich­
ols wrote “verbal warning,” but he told Mr. Knott to leave
Richard Marrs’ cart, the chemistries cart, alone in the future.
I want to make a little note as to credibility of reconstructing
these events. Several witnesses testified about them. Their
testimony was sometimes in conflict, sometimes agreed.
With regard to Mr. Nichols, his conduct, as well as his testi­
mony impressed me as a reed in the wind. He was swayed by
whomever he last talked to. In his testimony he had a tendency
to be swayed by the last question, much as the facts show he
was swayed by the last employee or manager who spoke with
him in the workplace. He displayed a poor recollection. His
testimony was vague and he had a poor demeanor. Wherever
his testimony conflicts with that of Mr. Knott or Mr. Ridenhour
or the documents, I don’t credit him.
With regard to Mr. Knott, I found that his recollection failed
him on the occasion of the Russell Smith remark. I find that,
overall, his testimony on important points was generally
straightforward and was corroborated, largely corroborated, by
222
Ridenhour, a very credible witness, by Marrs, too, on many
points, by Nichols on many points, as well as by much of the
documentary evidence, including Respondent’s 1, the so-called
investigation.
And, with respect to Marrs, I find that his testimony largely
corroborated the sequence of events related by Mr. Knott and
Mr. Ridenhour.
So, in sum, as of June 17, Mr. Nichols had not told Mr.
Knott he couldn’t use the chemistries cart, only that, when in its
resting place, it must be positioned with the chemistries outer-
most. The positioning of the cart, whether chemistries or scrap
was outermost, was the issue discussed. That was what was at
issue.
So Mr. Marrs’ complaint to Mr. Nichols on the 19th of June
wasn’t the same old complaint. It was a new complaint. It
wasn’t the issue of which were outermost, chemistries or scrap,
it was now they’ve given me a different cart and there aren’t
any wheels on it.
Mr. Nichols could have got the cart fixed, could have se­
cured another cart, but he didn’t do either. Instead, he decided
to impose some discipline and consulted with Ms. Broughton
about it.
And, in case it wasn’t clear from the preceding, I find that
there was no oral warning to Mr. Knott on the 13th of June, as
stated in some of the disciplinary slips that are in
223
evidence, or at any other date before June 21st. There were
announcements of rules, various announcements, but no oral
warning until the 21st when Mr. Nichols wrote verbal warning,
quote/unquote, by which I believe he meant oral warning, atop
the warning notice that he was giving to Mr. Knott.
And that’s the situation concerning the 6/17 incident up
through the according of the warning to Mr. Knott. At that
point, Ms. Broughton, being informed by Mr. Nichols that he
had given Mr. Knott a verbal warning, decided for reasons of
her own, to do a “full investigation.” Her reasons were never
really made clear in her testimony. I find that her testimony
was somewhat circular on this point. The “severity” was the
justification of the investigation at some points in her testi­
mony, but, at other points in her testimony, it appeared that the
“severity” had not been discovered until the course of and after
the investigation.
The evidence further shows that in no other situation had Ms.
Broughton interviewed more than two or three individuals—
those who were involved and able to provide first-hand infor­
mation—and then usually briefly. Here, she interviewed ap­
proximately 11 employees—think exactly 11 employees—most
of whom had no knowledge of anything involving the June 17
incident and said so in their statements. Nevertheless, Ms.
Broughton went on and continued to interview these employees
who knew nothing, apparently, asking them for opinions, hear-
say, or
224
other non-useful material, which appears in these statements of
approximately seven employees. The four employees who did
know something about the incident,
Mr. Marrs, Mr. Nichols, Mr. Knott, and Mr. Ridenhour were
also interviewed.
The first person to be interviewed was Mr. Knott. He was
asked only about the “cart rule” and the incident on—June
17th. After interviewing Mr. Knott, the other ten individuals
were interviewed and, whether they knew anything about this
incident or not, were interviewed rather extensively.
It was undisputed, and Ms. Broughton essentially testified
so, that never before or since has she done such an extensive
investigation and I heard in her testimony no cogent explana­
tion for why she chose to conduct so extensive an investigation
in this instance.
I have reviewed, as suggested by Mr. Moore, once again, for,
I think, about the third time, Respondent’s Exhibit 1, the fruits
of Ms. Broughton’s investigation and, as I said, about four of
the individuals actually have something to say about the inci­
dent under investigation. The other seven have nothing to say
about it, other than unsupported allegations, hearsay, other
comments, opinions about personalities, incidents that occurred
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
months or years ago, spite, speculation, and amateur character
analysis.
225
To the extent Ms. Broughton relied on any of this extraneous
material to the incident of June 17, it is undisputed that she
never re-interviewed Mr. Knott or permitted him to make any
explanation or confronted him with any of the allegations or
other hearsay or other material that she harvested through these
statements. She neither told him about any of them nor permit­
ted him to make any explanation, refute them, or give his side
of the story. There was no other interview.
Instead, based on the 11 statements, Ms. Broughton con­
cluded that, not just a verbal warning, not just a written warn­
ing, but, in fact, an acceleration through three more steps of the
Respondent’s disciplinary system was appropriate and that Mr.
Knott should be discharged. She received approval for this and
it was done on June 28th.
In that interview, Mr. Phillips, who was a department head,
and Ms. Broughton simply announced the discharge to Mr.
Knott. They did not ask for and would not listen to anything
that he wanted to say. The reasons that were advanced for the
decision by Ms. Broughton were several. “Acted to undermine
the supervisor” and engaged in “disruptive behavior” were two
of the reasons advanced for this acceleration of discipline to
employment capital punishment or discharge.
She told Mr. Knott at his interview, however, that the reason
for his discharge was “deliberate insubordination.” So there are
three reasons advanced by the
226
testimony. There may be more, but the one communicated
from the memos, Respondent’s 1, and the one communicated to
Mr. Knott, was “deliberate insubordination.”
With regard to the facts concerning
Respondent’s disciplinary policy, the policy was, briefly, an
oral warning, three written warnings, and then a discharge or
not if in the discretion of the human resources manager the
employee deserves another chance. Warnings expire after one
year. Absentee occurrences expire after six months. And there
was considerable evidence of the use and application of that
policy, which was discussed by both the General Counsel and
Respondent and Ms. Broughton explained some of the apparent
deviations.
In the one case, Wheeler, there was a deviation from the pol-
icy according to Ms. Broughton, because the supervisor felt that
that was all that was warranted, the warning and/or notation.
In G. C. 6, the case of an argumentative and angry employee,
Ms. Broughton had two meetings with the employee and to
explain that his behavior was not appropriate. These meetings
did not necessarily result in a warning.
And in G. C. 14, Ms. Broughton admitted there were errors
in applying the policy, and that was one of them. In G. C. 8—
I’ve got the name of the employee there, Arriaga, there was an
error made by the supervisor.
227
There were two infractions which were clear on the third
warning. An error was made by the supervisor and it was per­
mitted to stand. There should have been an additional warning
because there were two incidents, according to the documents.
And in G. C. 9, Ms. Broughton states there was no disparity
and there was no irregularity in the way the policy was applied.
Regarding G. C. 10, regarding an employee who did not get
along with other employees, was abusive to other employees,
and called them scurrilous names, including “bitch,” for that
employee it was suggested that she should go to the Employee
Assistance Program, which is noted on the form by the initials
EAP.
In General Counsel 13, an employee whose name was Mar-
low, was at the last step of the disciplinary procedure, and the
employee’s supervisor recommended that he be discharged.
Ms. Broughton exercised her discretion in the direction of
mercy and gave him one more chance, but he didn’t take it very
well and was later fired. But Ms. Broughton’s explanation of
the policy is that it does permit discretion. Not only does the
policy allow discretion, but she exercises it.
I would additionally mention in the facts that Mr. Weigle tes­
tified that he had some participation in the decision, relying
only upon Ms. Broughton’s advice and investigation, as he,
himself, did not do any personal investigation, other than talk­
ing to Mr. Nichols. Mr. Nichols had reported to
228
him that Mr. Knott had said he would talk how he pleased with
other employees and, after both speaking with Nichols and Ms.
Broughton, Mr. Weigle believed that Mr. Knott had engaged in
“intentional mischief” and continued in “intentional “insubor­
dination” and, likewise, an out-and-out effort to interfere with
supervision and to disrupt the workplace. And he stated that he
relied only on the last week of Mr. Knott’s career, not the other
portion of it in reaching his decision to concur with Ms.
Broughton’s recommendation.
I would note that, with regard to making some credibility
findings, the testimony of Cotner and Hurst was completely
unhelpful. I don’t credit their testimony and, to the extent that
Respondent relied on their statements, it was undoubtedly un­
helpful to Respondent’s investigation, as well.
In terms of Mr. Weigle and, generally, his testimony that, in
fact, Mr. Knott’s union and protected concerted activities had
absolutely nothing to do with his decision to fire Mr. Knott, I
did not credit Mr. Weigle. His demeanor was extremely poor.
His answers were hesitant and unsure.
With respect to Ms. Broughton, I will, in my findings, eluci­
date this further, but her answers to many questions essentially
circled around the topic and did not address it, avoided ques­
tions many times, and she often gave inconsistent or unrespon­
sive answers. The answers sometimes make no sense, such
229
as the statement that she was supporting a supervisor when,
actually, undercutting him in his actions. In general, I discredit
her recitation of reasons upon which she relied, and, as I have
already found, to the extent that she testified there had been an
oral warning to Mr. Knott, during the week of June 12th, I do
not credit that.
TUBULAR CORP. OF AMERICA 105
Turning to the legal standard used, as the parties are fully
aware, it’s the G. C.’s burden under Wright Line, 251 NLRB
1083 (1980)—662 F.2d 899 (1st Cir. 1981) Cert. denied 455
U.S. 989 (1982).
It is the General Counsel’s burden to prove the employees
had concerted protected or union activities, the employer was
aware of those, that there was action take against the employee,
that that there was some animus toward these activities or the
employee because of engaging in these activities, and there was
some connection between the concerted protected activities and
the action against the employee.
And that same case goes on to point out that a Respondent
may rebut this prima facie case by demonstrating, carrying its
burden of demonstrating that the same action would have been
taken against the employee, regardless of any union or con­
certed protected activities.
In the case at hand, there is not a lot of dispute about certain
of the elements of the General Counsel’s case. The concerted
protected activities and union activities
230
of Mr. Knott to the extent of trying to contact a union are ad­
mitted and it’s also admitted that they were known to the em­
ployer.
The further element that’s not disputed is that there was ac­
tion taken against the employee, who was warned on June 21,
suspended on June 23, and discharged on June 28, precipitated
by the incident on June 17.
With regard to the element of animus, there is dispute. I
have found that there is no direct evidence of animus, i.e. Mr.
Smith’s statement, which was alleged in the complaint. How-
ever, I find that it is possible to infer from various other cir­
cumstances and facts that animus exists such as the timing of
the action, the disparity shown toward the employee, the con-
duct of the investigation, whether cogent reasons were ad­
vanced or not, and whether the behavior of the employer was
consistent or inconsistent with its prior practice.
I find that all those factors weigh in the direction of demon­
strating that Respondent did harbor animus against Knott for
his activities and that inference is buttressed by certain state­
ments which were repeatedly made by both Mr. Weigle and
Ms. Broughton concerning employees being disruptive, which
in the context in which it was said often meant that he talked to
employees about things that they didn’t want the employees
talking about and it was his, Mr. Nichols’, report to Mr. Weigle
that Mr. Knott said he would talk with employees any way he
wanted to with employees, which caused
231
Mr. Weigle to conclude that Mr. Knott was disruptive in the
workplace and was engaging in misconduct.
These phrases of “disruptive in the workplace” were re­
peated and have often been seen, and I see them in this case, as
essentially a code word for unhappiness with the employees’
propensity to talk to other people and to stir other employees
and to, essentially, try to get them interested in discussing the
working conditions and, possibly, a union.
Therefore, the connection between the employer’s unhappi­
ness with the protected activities and union activities of Mr.
Knott is connected to the action taken against him by several
factors. The timing is primary among them. The dispropor­
tionate punishment for the infraction of using the cart on the
17th of June is another. The disparity and the conduct of the
investigation all show, that there is a connection between this
animus and the action taken against Mr. Knott.
Respondent’s defense is that Mr. Knott’s conduct not only
on the 17th but for two years earlier than that justified his ter­
mination.
The evidence shows that, in fact, Respondent investigated
the June 17 incident, for which it is undisputed Ms. Broughton
believed that Mr. Knott should get a first written warning. But
232
assertedly upon the basis of 11 employees’ statements, which
dealt with many other issues than the June 17 incident, includ­
ing hearsay, old allegations, as old as two years, vague attitude
complaints of other employees about Mr. Knott’s conduct, all
of which had been tolerated by the supervisor and not the sub­
ject of discipline, she decided that, in fact, even though he had
never been disciplined for any of this conduct, he needed to be
fired for it now.
Again, Ms. Broughton did not afford Mr. Knott any opportu­
nity to respond to these new allegation, or hearsay accusations,
many as old as two years, the allegations, essentially, uncov­
ered in her investigation, or to get his version of any of the
events. The interviews were far-ranging. Not only did Ms.
Broughton interview all employees in the metallurgy lab, but
even employees not in the metallurgy department and employ­
ees not on Knott’s shift. As noted before, approximately seven
of the employees interviewed had no knowledge of the incident
that was supposedly being investigated.
So Ms. Broughton acted on these accusations and allegations
without any input from Mr. Knott and decided to terminate a
three year employee with an otherwise clean disciplinary re-
cord. In doing so, the General Counsel argues that, first Re­
spondent never explained why the verbal warning suddenly
metamorphosed into accelerated discipline, not just a written
warning, first,
233
second, or third, but all the way to discharge, never explained
why it conducted an investigation unique in its history, and that
the only explanation is that the mission of the investigation was
Mr. Knott’s discharge. This conclusion seems to me inescap­
able.
The problems that Mr. Knott was taxed with in the state­
ments collected by Ms. Broughton were problems which had
been tolerated by Respondent at all supervisory levels for two
years or more. For them suddenly to become in June of 2000 a
reason for termination is not logical. Therefore, it raises the
search for some other motive.
The General Counsel also argues that
Respondent has not sustained its burden of showing that it
would have discharged Mr. Knott in any case because it has not
shown that it would have discharged any other employee for
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
similar conduct. The General Counsel has pointed to a number
of issues which showed that Mr. Knott’s conduct was treated
differently, that there was disparity in application of discipli­
nary policies to him.
I agree that there was disparity and find that it existed in a
number of ways. First, in the issue of progressivity. In several
cases, of which there is evidence in the record, such as Sum­
mers, Silbaugh, and Page, the progression of the discipline was
extended. One time the discipline was shortened, but only to a
second warning, but that employee was later given many addi­
tional “chances.” In other words, this progressivity, in
234
which there was discretion, where there was discretion, it was
used on the side of giving employees another chance.
Ms. Broughton herself felt it would be unfair in several of
these situations to—unfair to the employee to, even though they
had a third warning on their record, to discharge them for their
next infraction, so gave them another chance on at least, two
occasions.
In Mr. Knott’s case, the discretion was used to ignore the
progressive policy, to shorten it for the use of a cart on one
work day, in the employee’s work.
Another aspect of the disparity is that there were errors made
by supervisors in discipline, which Ms. Broughton noted, and
recommendations made by them. Where there were errors by
supervisors, Ms. Broughton said in order to support supervisors
and because the error or sin of the employee might be some-
what old, those errors were permitted to stand and, to do other-
wise, would not be fair to the employee.
In Mr. Knott’s case, however, old sins or old errors, even
though no one had given him any discipline for them and
they’d been tolerated, were used as a justification to accelerate
discipline and to give discipline, essentially, for conduct up to
two years old.
In the cases, most cases, Ms. Broughton believed it was the
Respondent’s policy to support the supervisor, but not in Mr.
Knott’s case. She contradicted Mr. Nichols’ award of a verbal
234
warning and accelerated it to discharge.
And in the only other case I could find in the evidence in
which the supervisor’s recommendation was not followed, in
that case Ms. Broughton’s discretion was exercised on the side
of mercy. She decided not to follow the supervisor’s
recommendation to fire an employee for what the supervisor
viewed as insubordination.
A third aspect of the disparity was the suggestion of the
EAP, or Employee Assistance Program, to several employees
who were perceived to have a problem getting along with other
employees. Silbaugh and Brown are two of the examples that
appear in the evidence. They were either angry, disruptive, or
didn’t get along with other employees. Wheeler is another
case. He showed up drunk. Some of these employees were
recommended to go to the Employee Assistance Program.
There was no evidence that the EAP was considered or rec­
ommended for Ms. Broughton’s perception that Mr. Knott had
a hard time getting along with the other employees in his de­
partment. therefore, he was treated differently from these other
three employees who had, arguably, committed more serious
infractions.
And severity is another aspect in which the disparity is
shown. There were no discipline or discharges for several inci­
dences of coming to the plant drunk, threatening employees
with guns, sleeping on the job repeatedly, insubordination,
236
abusive and foul language to coworkers, which occurred re­
peatedly.
I find that those are more serious than Mr. Knott’s use of the
cart on June 17th. Those employees, by the way, Wheeler,
Arriaga, Marlow, Brown, Summers, are some of the examples
where serious conduct either was not disciplined at all or, cer­
tainly, the employee was not discharged.
Another aspect of the disparity: Ms. Broughton’s description
of the policy is, normally, she refused to impose discipline for
outdated misconduct that had been overlooked in the past.
Arriaga and Wheeler are two instances in which this occurred.
That was not the case with Mr. Knott. His errors that were
perceived to be revealed in the investigation by Ms. Broughton
were, according to her testimony, reason for discipline up to
and including discharge, even though the allegations were old,
whereas, in her words, it would have been unfair to impose
discipline later on other employees.
And there is another aspect of disparity and that is the inves­
tigation.
The evidence of all the other discipline in the record shows,
first, there was no cogent reason for beginning this investiga­
tion. It was over-broad and no opportunity was afforded Mr.
Knott to respond to any of the supposed sins uncovered in the
investigation.
237
For all three of those reasons, the investigation and the con-
duct of it was disparate with regard to other employees.
Assuming, without deciding, that the investigation did dis­
close that Mr. Knott had an overbearing personality, Respon­
dent tolerated that for three years and accorded no discipline to
Mr. Knott for it. It was, obviously, not the real reason for his
discharge. To the extent it was relied upon, Respondent seized
upon it as a pretext. And General Counsel is correct in citing
Norris O’Bannon, 307 1236 (1992) in support of that finding.
With regard to the investigation, I would also note that
Brookshire Grocery Company, 282 NLRB [1273 (1987)] does
support the notion that a hasty and unfounded discharge may
imply unlawful motivation when there’s been no opportunity to
explain the discrepancies and the nature of management’s in­
vestigation is not conducive to a fair investigation.
In sum, I find that Ms. Broughton’s actions in overriding Mr.
Nichols’ already administered oral warning and changing it by
her own determination to a written and then a discharge is un­
reasonable and inexplicable and I conclude, that the real reason
for the discharge was Mr. Knott’s concerted protected activities
and his union activities.
TUBULAR CORP. OF AMERICA 107
In fact, I find that Mr. Knott accurately stated the case at his
discharge interview when, according to Respondent’s Exhibit 1,
upon being discharged, he said to
238
Ms. Broughton “This is not over the cart. You all are afraid of
my voice out there.” That comes directly from the evidence,
the first page of Respondent’s Exhibit 1. I find that that’s ex­
actly the reason that Mr. Knott was discharged.
Respondent has not borne the burden of showing that it
would have discharged Mr. Knott in any case. In sum, had it
really been his obstreperous personality, he would have been
discharged long ago. Had it been the cart incident, Nichols’
verbal warning was the discipline that was given for that. And
the disparity evidence shows conclusively that Respondent
would not have fired him for the conduct on the 17th.
In conclusion, those are my findings with regard to the sus­
pension and discharge of Mr. Knott and I will recommend dis­
missal of paragraph 4 and 5(a) of the complaint.
CONCLUSIONS OF LAW
And my conclusions of law are: 1. That, by suspending and
discharging its employee Billy Knott, Respondent has violated
Section 8(a)(3) and (1) of the Act; and, 2., the violation set
forth above is an unfair labor practice affecting commerce
within the meaning of the Act.
And, as to remedy, I shall recommend that Respondent be
required to cease and desist and take certain affirmative action
necessary to effectuate the policies of the Act, that Respondent
be ordered to reinstate Mr. Knott to his former position, to re-
move from his employment record any notation relating to the
unlawful action taken against him and to make him whole for
any loss of earnings or benefits he may have suffered due to the
unlawful actions taken against him in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), plus interest as
computed in accordance with 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 recommended Order:
That Respondent, Grant Prideco, LP, d/b/a Tubular Corpora­
tion of America, its officers, agents, successors, and assigns
shall cease and desist from:
A. suspending or discharging employees because of their un­
ion or concerted protected activities;
B. in any like or related matter interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act; and, 2, take the following affirmative
action necessary to effectuate the policies of the Act within 14
days of the date of the Order or if not full reinstatement 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 privileges previously enjoyed; make Billy Knott
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 this decision; within 14 days of this
Order, remove
240
from his files any reference to the unlawful suspension and
discharge; if not, within three days thereafter, notify the em­
ployee in writing that this has been done and that the suspen­
sion and discharge will not be used be used against him in any
way.
Also, preserve and within 14 days of request make available
to the Board for examination and copying all payroll records,
social security payment records, and other material necessary to
analyze the amount of back pay due under the terms of this
order and within 14 days after service by the Region post at its
Muskogee location copies of a notice which will be attached to
my certification and publication of this decision and will be
marked Appendix in that publication and thereafter file within
21 days of service by the Region file with the regional director
a sworn certification of a responsible official provided by the
region attesting—on a form provided by the region attesting to
the steps that Respondent has taken to comply.
The Appendix constituting a notice to employees will be a
part of my decision.
Again, I would just reiterate that time for exceptions begins
to run upon the issuance of this bench decision in writing, and I
thank you all for your participation and the presentation of your
cases and the hearing is closed.
(Whereupon, the hearing in the above-entitled matter was
241
closed.)
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Go vernment
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 representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con­
certed activities.
WE WILL NOT suspend or discharge employees because of
their support for a union or their concerted protected activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed you by
Section 7 of the Act.
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL reinstate Billy Knott to his former job, and WE WILL writing that this has been done and that the suspension and
make him whole for any loss of pay or other benefits he may discharge will not be used against him in any way.
have suffered because of our unlawful suspension and dis- GRANT PRIDECO, L.P. D/B/A TUBULAR
charge of him.
WE WILL remove from our files any reference to the unlawful CORPORATION OF AMERICA
suspension and discharge of Billy Knott, and notify him in