Universal Rundle Corp.

National Labor Relations Board - Board Decisions

Nov 19, 1971

194 N.L.R.B. 253 (N.L.R.B. 1971)

UNIVERSAL RUNDLE CORPORATION 253
Universal Rundle Corporation and International
Brotherhood of Pottery & Allied Workers,
AFL-CIO-CLC. Case 16-CA-4187
November 19, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 13, 1971, Trial Examiner George Turitz
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not
engaged in other unfair labor practices alleged in the
complaint, and recommended dismissal of such
allegations. Thereafter, Respondent filed timely
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as modified herein.
The Trial Examiner found that Respondent's
discharge of employee Robert Selph was discrimina-
torily motivated in violation of Section 8(a)(3) and (1)
of the Act. We find merit in Respondent's exception
to this finding as we do not believe that the requisite
unlawful motive can properly be inferred from the
circumstances surrounding Selph's discharge.
The record shows that Selph was hired by Respon-
dent on August 10, 1970,2 and for the first 5 weeks
worked at various tasks involved in getting the new
plant ready for operations. On September 15 prod-
uction commenced and Selph was made a former-
glasser , operating a spray gun to coat the molds of
bathtubs and shower units with polyurethane foam or
with a resin-fiberglass material. This job required
careful hand-eye coordination and quick responses
and, as the Trial Examiner found, Selph's perform-
ance was stiff and he could not get at ease with the
spray gun. On October 9, Plant Manager Bell
forwarded a memorandum to Plant Superintendent
Wendel which stated that Selph's foam-spraying work
was unsatisfactory, but, giving him the benefit of the
doubt, he would be tried out on a warehouse job. At
or about the same time, Selph requested a transfer to
Respondent's warehouse as he disliked the foaming-
glassing operation, finding it messy and ruinous to his
clothing.
On October 10, Selph transferred to a warehouse
job, and, on the same day, was also informed that he
had completed his 60-day probationary period, being
entitled thereby to a 10-cent-per-hour wage increase
and certain benefits.3 Selph's new job duties included
the packing of finished units in cartons, clean-up
work, the distribution of raw materials throughout the
plant, and filing work in the administrative office.
Certain of these duties caused Selph to move in and
around all areas of the plant and gave him frequent
contact with many of the other employees.
On October 14, Selph, while packing a completed
bathtub unit, was instructed to smooth down the
overly thick foam insulation on a bathtub's back
surface around the outside of its drain hole. In
accordance with his instructions, Selph used an air-
powered grinding tool to accomplish this task. While
so doing, the grinder jerked and gouged a distortion in
the side of the drain hole. To correct this, Selph then
used the grinder to round out the distorted hole "until
it looked nice," thereby greatly increasing its circum-
ference . This corrective action made the entire unit
unusable; it had to be scrapped as it could no longer
be installed with and connected to plumbing fixtures
of prescribed dimensions . At the hearing, Selph
testified that he did not know what width the hole had
to be, that he enlarged it "hoping it may be
acceptable," ,and that while he realized a metal fitting
had to cover the hole, he did not know the size of it:
Selph was not given a warning or reprimand for this
incident, but Foreman Williams and Superintendent
Wendel pointed out to him his error and the fact that
the unit had to be scrapped as a result thereof.
On October 15, Superintendent Wendel found
Selph in Respondent's grinding room operating a
grinder on the skirt of a tub unit, although he was not
assigned to perform such work or even be present in
the grinding room. Selph had scalloped the edge of a
tub with the grinder so that it would not sit flat on the
floor and an hour of repair work was necessitated to
correct the defect. Wendel told Selph that this was not
his job and instructed him to stay out of the grinding
room in the future.. During the same week, Wendel,
while reopening some sealed cartons that Selph had
1 Respondent has requested oral argument This request is hereby 2 All dates herein are 1970 , unless otherwise specified.
denied as the record, the exceptions , and the brief adequately present the 3 This did not effect an increase in Selph's net wages, as the 'warehouse
issues and positions of the parties job carried a lower base pay rate.
194 NLRB No. 21
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
packed, discovered that incorrectly placed staples on
the outside of the cartons had marred the surfaces of
the units enclosed therein to the extent that they had
to be refinished. Selph was present when Wendel
found these defects and they were pointed out to him.
On October 16, Foreman Williams, while, in the
employees' lunchroom, heard Selph loudly swearing
and using profanity. Williams told Selph to watch his
language as there were women seated at the next
table. Later that day Williams reported the incident to
Wendel, said that the women nearby had heard Selph
and were' obviously upset by his language, and
recommended that a warning be issued. Wendel then
wrote out a "first warning notice" which he gave to
Selph on the morning of the next workday-Monday,
October 19. Selph spoke to both Wendel and Bell
about the warning notice and, from their conversa-
tions at the time and their testimony at the hearing, it
does not appear that Respondent's officials consid-
ered Selph's profanity to have constituted a serious
breach of discipline.
Shortly after receiving the warning notice, Selph
posted it on Respondent's bulletin board.4 Bell
discovered this on the morning of October 20,
immediately became infuriated, and tore down the
notice. He then went to Wendel's office, threw the
notice on the desk, and said that he considered Selph's
posting of it to be the rankest form of insubordina-
tion. The next day Bell met with Wendel,5 discussed
Selph's work record, and decided to discharge him.
On October 22, Selph was given a discharge notice
which listed as the reasons therefor his ruining of the
tub unit by grinding the oversize drain hole, his
improper grinding of the tub skirt when not assigned
to that job, his marring of finished units by improper
carton stapling, the lunchroom profanity incident,
and the alleged insubordination involved in the
posting of his warning notice on the bulletin board.
Selph's union activities consisted of speaking in
favor of the Union to some employees and showing
them wage scales from the Union's contracts at two of
Respondent's other plants and passing out authoriza-
tion cards to from four to six employees,6 one of
whom signed. With respect to Respondent's knowl-
edge of this, its counsel stated at the hearing that at all
times relevant to the issues herein Respondent was
aware of Selph's union activities. Further, the record
specifically shows that Selph made prounion state-
ments to Foreman Williams on or before October 7,
and that employee Lockhart made an unsolicited
4 Respondent's "Employees Handbook" provided that employees must
get supervisory approval before a personal notice could be posted on plant
bulletin boards.
a Bell testified that Supervisors Williams and Lowe were also present at
this meeting, while Wendel could not recall whether they were there or not.
Unlike the Trial Examiner, we do not conclude from this discrepancy that
such a meeting did not take place.
disclosure of Selph's union activity to Plant Manager
Bell on or about October 8. Although Respondent's
discharge of Selph was made, therefore, with full
knowledge of his union activity, there is no direct
evidence which would establish that Respondent's
action was motivated by unlawful considerations.
However, in evaluating the circumstances which gave
rise to Selph's discharge, the Trial Examiner conclud-
ed that the reasons offered by Respondent to support
the discharge were pretextual and, accordingly, he
inferred that Respondent's true reasons were discrimi-
natory.
In so concluding, the Trial Examiner relied, in part,
on the fact that no other employees were discharged
by Respondent for poor performance, although the
major portion of its bath and shower tub production
during the period of Selph's employment was defec-
tive to the extent of needing corrective work and a
considerable number were unusable. Respondent
excepts to this conclusion, asserting that it expected
its employees to make mistakes during the early stages
of this newly established plant, as they were inexperi-
enced in the techniques of executing their assigned job
tasks, but that Selph's deficiencies, and the resultant
damage to production units-unlike those of other
employees 7-manifested an inability to follow supervi-
sory instructions and a serious lack of sensible
judgment. We find the distinction drawn by Respon-
dent between Selph's mistakes and those of other
employees to be a reasonable one. Selph's initial
distortion of the drain hole resulted from his inexperi-
ence in operating the grinder, but his subsequent
intentional enlargement of the hole was contrary to
instructions and was clearly indicative of poor
judgment. Similarly, his damaging of the tub skirt
resulted from his performing work not assigned to
him and his marring of the cartoned units was caused
by his failure to follow instructions as to the
placement and quantity of staples used. Thus, the
principal job-related factor leading to his discharge
was not merely production of defective work, but
rather that the defective work resulted from a failure
to follow instructions .8
Respondent also asserts that Selph's cumulative
work -deficiencies would not alone have caused his
discharge, but with that as background, his posting of
the warning notice on the bulletin board-viewed by
Plant Manager Bell as an act of defiance against
6 Respondent's complement of hourly rated employees ranged from 20
to 23.
7 The only specific evidence in the record with regard to another
employee ruining a production unit pertained to employee Lockhart whose
damage to a tub resulted from a 1/2-inch maladjustment in a newly
installed grinding saw.
8 See Formed Tubes Southern, Inc., 188 NLRB No. 3.
UNIVERSAL RUNDLE CORPORATION
managerial authority-led to a review of his entire
work record and the resultant discharge.9 In his
Decision, the Trial Examiner devoted considerable
discussion to the question of Selph's intent in posting
the warning notice, rejecting, in the process, Selph's
own explanation. We find, regardless of Selph's actual
intent, that Plant Manager Bell interpreted it as an
intentional act of insubordination and that such
interpretation, under the circumstances, was a reason-
able one.
Respondent contended before the Trial Examiner
that the retention of Selph as an employee through the
completion of his probationary period on October 10
negates any discriminatory motive in light of Respon-
dent's awareness, at that time, of Selph's union
activities. The Trial Examiner rejected this conten-
tion, concluding that Respondent could have formed
an intention to get rid of Selph as early as October 8
without following through on it until it could establish
a more convincing foundation for a discharge. Under
the circumstances herein, we disagree with this
conclusion as Respondent not only retained Selph
after completion of his probation, but simultaneously
therewith granted him the favor of a transfer from the
foamer-glasser job which he disliked and performed
poorly to the warehouse job he preferred and
requested. We find it more reasonable to conclude
that an employer intent on effecting a discriminatory
discharge would refuse such a transfer request in
expectation that the employee would either resign
from the disliked job or continue to perform it
unsatisfactorily and, thereby, supply a plausible
reason for discharge. Further, we note that the duties
of the warehouse job to which Selph was reassigned
allowed him to have frequent contact and conversa-
tion with employees in all areas of the plant. It does
not appear likely that an employer contemplating
discharge of an employee for promoting unionization
would place that employee in a position to maximize
his opportunities for contacting others.
The Trial Examiner, citing the fact that Respondent
never specifically warned Selph that his poor work or
conduct could lead to termination, states that the
absence of such warning, if accompanied by other
indicia of discriminatory intent, would lend support
to a finding of discrimination. Unlike the Trial
Examiner, however, we conclude that the absence of
specific warning herein does not, without more,
support a finding of discriminatory intent as there is
no proof that Respondent had any practice of giving
particular numbers or forms of admonitions and
warnings before effecting a discharge. Moreover, we
find no basis for assuming that Respondent, because
of its antipathy toward unionization of its plant,
would necessarily resort to unlawful means to
frustrate employee concerted activities.10
255
We conclude, in view of the foregoing, that the
General Counsel has failed to prove that Selph was
discharged for discriminatory reasons. Accordingly,
we shall order that the complaint be dismissed with
respect to the allegation that Respondent's discharge
of Selph was violative of Section 8(a)(3) and (1) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that Respondent, Universal Rundle
Corporation, Corsicana, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order, as so
modified:
1. Delete paragraph 1(a) of the Trial Examiner's
recommended Order and reletter paragraphs 1(b) and
1(c) as 1(a) and 1(b), respectively.
2. Delete paragraphs 2(a) through 2(f) of the Trial
Examiner's recommended Order and reletter para-
graphs 2(g) and 2(h) as 2(a) and 2(b), respectively.
3. Substitute the attached notice for the Trial
Examiner's notice.
IT IS HEREBY FURTHER ORDERED that the complaint
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
MEMBER JENKINS, dissenting in part:
For the reasons expressed in his Decision, I would
affirm the Trial Examiner's conclusion that Selph was
discharged in violation of Section 8(a)(3) and (1).
9 We note in this regard that there was no evidence in the record of any
alleged insubordinate behavior on the part of any other employee
io We do not regard Respondent's no-distribution rule, which was
promulgated prior to the advent of the union activity at Respondent's
plant, as indicative of an inclination to engage in the type of unlawful
conduct here alleged.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
After a trial at which both sides had the opportunity
to present their evidence, a Decision has been issued
finding that we violated the law and ordering us to
post this notice. We intend to carry out the Order of
the Board and abide by the following:
WE WILL NOT maintain or enforce any rule or
policy prohibiting employees from distributing
union literature during their nonwork time in
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonwork areas, except under conditions set forth
in the Board's Decision.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their right to self-organization, to form,
join, and assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
UNIVERSAL RUNDLE
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 8A24, Federal Office Building, 819
Taylor Street, Fort Worth, Texas 76102, Telephone
817-334-2921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner: Upon a charge and a
first amended charge filed by International Brotherhood of
Pottery and Allied Workers, AFL-CIO-CLC (the Union)
on November 18, 1970, and December 10, 1970, respective-
ly, and served those same dates upon Universal Rundle
Corporation (Respondent and, at times, the Company), the
General Counsel of the National Labor Relations Board
(the Board), through the Regional Director for Region 16,
on December 21, 1970, issued and served a complaint and
notice of hearing against Respondent. Respondent filed its
answer in which it denied all allegations of unfair labor
practices. A hearing on the complaint was held before me at
Corsicana, Texas, on March 9, 10, and 11, 1971. The
General Counsel and Respondent were represented by their
respective counsel at the hearing, and the Union by an
International representative. The General Counsel and
Respondent have submitted briefs.
Upon the entire record 1 and from my observation of the
witnesses I make the following:
1 On April 5, after the close of,tbe hearing, I issued an order admitting
into evidence Resp. Exh 6, which I had rejected at the hearing I have
marked Resp Exh. 6 as having been received in evidence, and my Order,
marked TX Exh. 2, has been placed in the exhibit file Submission of a
duplicate of Resp. Exh. 6 is waived.
2 Unless otherwise specifically stated, all dates mentioned in this
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, Universal Rundle Corporation, is a Dela-
ware corporation having a number of plants in various
States of the United States. It maintains an office and plant
at Corsicana, Texas, where it is engaged in the manufacture
and distribution of bathtub and shower fixtures made of
fiberglass and plastic materials, and of related products. In
the course and conduct of its operations at the Corsicana
plant Respondent annually sells and ships directly to
customers located in States of the United States other than
Texas products valued at in excess of $50,000. I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the National
Labor Relations Act, as amended (the Act).
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Pottery and Allied Work-
ers, AFL-CIO-CLC, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent hired the first nonsupervisory employees at
the Corsicana plant about July 27, 1970;2 actual pro-
duction operations started approximately September 15.
Until that date the employees who had been hired assisted
in setting up the plant. Shortly after the hiring of employees
began, Respondent issued an "Employee's Handbook,"
containing, among other things, various rules and regula-
tions. A copy of the handbook was given to each employee.
On September 22 the Union started a campaign to
organize the employees. On September 29,3 and weekly
thereafter, Respondent held meetings of the employees at
which it urged them not to join the Union; and on October
1 it sent them a two-page letter in which it expressed,
among other things, its "official position" that it did not
want a union in the plant, its firm conviction that a union
would not work to the employees' benefit but to their harm,
and its intention to use every legal means at its command to
keep it out .4
The issues litigated at the hearing were: An allegedly
illegal no-solicitation rule orally promulgated by Respon-
dent at one of the meetings; an allegedly illegal written no-
distribution rule contained in the Employee's Handbook;
and the allegedly discriminatory discharge of Robert Selph.
B. The No-Solicitation Rule
The Employee's Handbook included the following:
Employees are not to engage in any type of solicitation,
selling or other non-work related activity during work
Decision were in 1970
3 This was the date testified to by Bell, Respondent's top official at the
Corsicana plant.
4 The General Counsel stated that be did not allege that anything stated
in the letter constituted an unfair labor practice and that he was requesting
relief based solely upon the allegations of the complaint.
UNIVERSAL RUNDLE CORPORATION 257
time. It is important that you not interfere with your
work or the work of others.
Selph testified that at one of the weekly meetings Bell, the
plant manager, said, "We will not tolerate any union
activities in this plant." This was denied by Bell. Lockhart,
another witness called by the General Counsel, testified,
"Julian Bell said that the labor organizers were not
admitted on Universal Rundle grounds."
Concluding findings as to the no-
solicitation rule
The General Counsel makes no claim that the handbook
rule on solicitation was invalid but relies only upon a rule
promulgated orally by Bell at one of the meetings. The oral
rule as testified to by Lockhart, who impressed me as
having a more accurate recollection of events at the plant
than Selph, referred only to outside organizers. Respondent
was within its rights in excluding nonemployee organizers
from its premises. N.L.R.B. v. Babcock & Wilcox, 351 U.S.
105. I find that the General Counsel has failed to prove that
Respondent promulgated a rule prohibiting employees
from soliciting union membership or support during
nonworking time.
C. The No-Distribution Rule
The Employee's Handbook contained the following on
pages 26 and 27 under the heading, "Distributions and
Solicitations."
The distribution of written material adds to the
problem of maintaining a clean and orderly plant. No
employee shall distribute leaflets, handbills or other
non-work materials in work areas of the plant at any
time.
Under "Rules and Regulations"5 it listed the following on
page 29 as one of the "offenses which may subject an
employee to disciplinary action":
10. Distributing or circulating written or printed
matter of any nature on plant property during working
or non-working time.
Bell, describing the orientation talk he gave to each newly
hired employee, testified:
On distribution, I point out that we do not allow the
distribution of any written or printed material anywhere
in the working and non-working, or non-working areas
of the plant at any time .6
Concluding findings as to the no-
distribution rule
It is arguable that the handbook contains some ambiguity
in that on page 27 the distribution of literature is forbidden
in work areas, but on page 29 the distribution is prohibited
anywhere on plant property. However, it is an interference
with employees' rights under the Act to subject them to
rules which, although ambiguous, are reasonably subject to
interpretation as forbidding protected activities. See G. C.
Murphy Company, 171 NLRB No. 45, enfd. 422 F.2d 685
(C.A.D.C.). Moreover, whatever ambiguity might have
been present in this case was dissipated by two things: (a)
The prohibition on page 29 -applied specifically to
nonworking time , which presumably would be spent largely
in nonwork areas; and (b) Bell, as I have already found,
told each employee individually that the prohibition
applied to nonwork areas . I find that at all times since
approximately September 15, 1970, Respondent main-
tained in effect a written rule prohibiting the employees
from distributing literature , including union literature, at
any time on company property, whether in work or
nonwork areas.
Respondent contends that the rule was , in any event,
justified because the constant use in its operations of a
certain catalyst made it extremely important to avoid any
danger of fire. The catalyst, a highly flammable liquid, was
stored in a shed about 150 yards from the plant proper and
was carried to the plant as needed, two 1-gallon bottles at a
time.
Respondent from time to time caused rubbish to be
burned out of doors on plant property . It is thus plain that
Respondent did not consider the fire hazard to be of such
proportions as to require the absolute prohibition of
literature, distribution outside the plant itself, yet its rule
was applicable anywhere "on plant property ." As to the
plant itself, the Employee's Handbook stated that Respon-
dent furnished vending machines for various foods and
beverages throughout the plant; under the heading, "For
your safety-Good Housekeeping", it provided, "Deposit
scrap paper and rubbish in receptacles which are found
throughout the plant ;" and certain areas in the plant were
designated for smoking . Moreover , from time to time open
fires were made on the floor in the middle of the
maintenance department .? There is no evidence that
Respondent took any special precaution with respect to the
wrappings from the employees ' lunches or from articles
dispensed by the vending machines, or with respect to
newspapers or any other combustible articles such as
employees customarily bring on the premises where they
work . No reason appears why the receptacles provided for
those things would not have served as adequately to prevent
any fire hazard from union literature. In view of the
foregoing, and of the use of open fires in the maintenance
department, and of the fact that smoking was allowed in
some areas, I do not credit Bell's testimony to the effect that
Respondent considered the fire risk so great that it required
the prohibition of literature distribution in nonwork areas
of the plant itself.
I find that Respondent 's no-distribution rule was an
illegal restriction of the employees ' rights under Section 7 of
the Act and constituted a violation of Section 8(a)(1) of the
Act. See Stoddard-Quirk Manufacturing Co., 138 NLRB
615.
5 The handbook stated that the rules and regulations were "posted
throughout the plant," but in fact they were not so posted.
6 A moment later, with his attention directed to the passage on pages 26
and 27 of the handbook, he testified: "I tell them that . . we do not allow
the distribution of leaflets, handbills, other non-work materials in work
areas in the plant at any time...:' I have not credited Bell's testimony
referred to in this footnote.
The department was separated from the rest of the plant by a fire wall.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Discharge of Robert Selph
1. Introduction
Respondent's Corsicana plant was devoted to the
building of bathtub and shower fixtures out of fiberglass
and plastic materials. The fixtures were formed round an
appropriately shaped core or mold by spraying several
layers of plastic and fiberglass materials on the mold. Some
of the layers were subjected to rolling and/or heating
processes. With the exception of Willie Wendel, the plant
superintendent, not a single individual employed, from
Bell, the plant manager, down, had had any prior
experience in the manufacture of fiberglass products.
As almost everybody was a learner, Respondent
encountered considerable difficulty at the beginning in
producing saleable units, and in October unsatisfactory
units were lined up clear across one end of the warehouse, a
distance of about 80 to 100 feet. From September 15, when
production operations started, to September 30 Respon-
dent placed about 71 units into production, of which only 7
were completed satisfactorily for shipment. From October
I to 8 Al Bevin, a man with much experience, was at the
Corsicana plant to help the local staff "get moving." He
was Respondent's manager of manufacturing of fiberglass
and was normally stationed in New Castle, Pennsylvania.
In October Respondent placed 281 units into production,
of which 94 were completed satisfactorily for shipment. At
the end of October there were about 200 units on hand
awaiting corrective work. As of that time 22 units placed
into production since the beginning of operations were so
defective as to be unusable and they had to be scrapped.
2. Selph's probation-August 10 to October 9
Selph, one of the earliest hires at the Corsicana plant,
started to work for Respondent on August 10. Before
production started he did miscellaneous work getting the
plant ready for operation. He had applied for warehouse
work, but when production started in September he was
made a foamer-glasser, and one Mullins was given the
warehouse job Selph had requested. The foaming job
required good coordination. The foam had to be applied by
moving the spray gun at an even speed in a fairly straight
pattern and at the proper, unvarying, distance from the
mold; and it was necessary frequently to shut off the foam
and immediately flush out the gun. At the same time the
operator had to bear in mind that the material contained an
acid dangerous to the eyes. Wendel testified credibly that
Selph's performance was "stiff," that "he couldn't get at
ease with the gun." Nevertheless, Bell complimented Selph
from time to time and on October 10, while he told Selph
that his work as a foamer had not been good, Bell informed
Selph that he had passed his probation and qualified for a
10-cent increase. As described more fully below, he
transferred Selph at that time to the warehouse.
8 Bell testified that Lockhart said, "Say, I want to point out to you, that
because Robert Selph and I are friends and I leave in his car , doesn't mean
that I feel the way he does about the Union." However, Bell testified that
the conversation took place at Lockhart's work station and 10 days to 2
weeks after Selph's termination. I found Lockhart more convincing than
3. Respondent's knowledge of Selph's union
activities
On September 22 Sanchez, a general International
representative of the Union, began organizational activities
among the employees. Selph spoke to the employees in
favor of the Union, showing them the wage scales in effect
at other plants of'Respondent. He passed out designation
cards to employees, at least one of whom signed. The only
other employee disclosed by the record as having
participated in the organizational activities was Obie
Lockhart.
Selph commented to Williams, Respondent's foreman,
the day after the second or third meeting held by
Respondent, i.e., on October 7 or 15, that two good men
with greater seniority had not received as large a wage
increase as he and others had received, and that with the
Union in the plant that would not happen. He also told
Williams round the same time that Bell had been wrong in
saying in one of the speeches that the Union had nothing to
offer; he said he knew that the Union did have something
to offer.`
Selph customarily rode to and from work with Obie
Lockhart, Respondent's maintenance man, who had been
the first employee hired at the Corsicana plant. Approxi-
mately 2 weeks or less before Selph's discharge on October
22 Lockhart had a conversation with Bell in the latter's
office during which Bell brought up the subject of Robert
Selph. This turn of the conversation worried Lockhart, who
hastened to assure Bell that although he rode with Selph, he
did not share his views about union activities . He went on
to tell Bell that Selph had been talking to the employees
about the Union, had been passing out union cards and
literature, and had been showing them copies of Respon-
dent's contracts with the Union at its other plants,
including the wage scales in effect there. Bell listened
attentively, nodded, and said, "I see." 8
4. Selph's transfer to the warehouse-
October 10
Selph did not like the foaming-glassing operation, which
he found messy, and in early October he requested a
transfer to the warehouse job notwithstanding that he knew
it carried a lower wage. On Saturday, October 10,
immediately after completion of his probation, his request
was granted. Mullins was put on the foaming-glassing
operation and Selph was assigned to break him in .9
Respondent placed in evidence the following handwritten
note on a printed form of the Company called "Fact-O-
Gram," which Bell testified he forwarded to Wendel on
October 9:
Al Beavon [sic], during his visit, has indicated that
Robert Selph's work as a foam sprayer is unsatisfactory
by any standards. We will give him the benefit of the
doubt and try him in the warehouse. (Cy Selph's file).
By Julian A. Bell Date 10/9/70
Bell and have credited his testimony as to the content, time and
circumstances of the conversation, and that the subject of Selph was
brought up by Bell.
9 Mullins was found unsatisfactory and he was replaced after 3 weeks
by a man whose performance was satisfactory.
UNIVERSAL RUNDLE CORPORATION 259
5. The oversized hole-October 14
On October 10 Bell told Selph that on the warehouse job
he would also have to carton the finished units, since there
was not yet enough flow of product to warrant having both
a warehouseman and a packager. Selph also placed
appropriate markings on the cartons and set them in their
designated places in the warehouse, received and unloaded
incoming materials, drove a truck to pick up materials
elsewhere, including Dallas, performed substantial clerical
duties relating to shipping and receiving, delivered
materials and supplies within the plant to the production
and maintenance departments and the office, and did
general cleanup work, using a forklift truck. He had much
spare time on the warehouse job and was the one who made
coffee for the employees. To keep him busy he was assigned
for a time to construct a drain at the station where units
were pulled from the molds; and in the course of the many
trips his work required him to make through the plant he
was able to devote much gallant attention to women
employees.
On October 14 Bell, accompanied by a group of visiting
salesmen, passed Selph's cartoning jig, where Selph was
engaged in packaging a unit. A salesman pointed out that
the foam was too thick round the hole for the overflow
drain of the unit which Selph was cartoning. Selph testified,
"I was then told by Mr. Bell to get a grinder and grind this
thing down." He explained, "In order for this tub to fit
properly into a prescribed place, this foam had to be
smoothed down for it to fit." Bell testified that he instructed
Selph, "Robert, will you get that grinding tool and touch
the overflow area lightly, to face it down so that it can go
into the carton as it should." to
Selph proceeded to grind the area in question but ended
up with a hole in the tub so large as to make it unusable and
it had to be scrapped, with a loss to Respondent amounting
to $90. Selph testified that the grinder, which had a
revolving disc abrasive driven by air power, had jerked and
distorted the hole, and that he had then ground it out until
"it looked nice." He testified, further, that he told Williams
what he had done and that Williams came and looked at
the tub and said, "The hole is too big, it won't work. Put it
over there with the rest of the scrap." He also testified that
Williams told him not to worry about it. Williams denied
Selph's testimony about their conversation. He testified
that he merely asked Selph the next morning if he had made
the oversize hole, that Selph admitted it, and that he
thereupon walked away.
Wendel testified with reference to October 14 as follows:
A. I talked with Mr. Selph about this. I brought him
over to where the tub was, with the big hole in it, and I
said, "Well, Robert, it looks like you have ruined that
one." And he said, "Well, it went through before I knew
what was happening." I said, "Well, Robert, that thing
looks awfully thick to me, to have it just slip through
like that." And he apologized for grinding the hole
through the tub.
Q. Did he tell you how it happened?
10 Wendel testified that normally the area round the overflow pipe was
ground flat in the grinding room, but that it was done temporarily by the
man doing the cartoning A new grinder, Yberra, was employed and
instructed by Wendel on October 15.
A. He said he was grinding the back of the tub and
it just ground through before he knew it.
Q. Was there any further conversation about that
statement?
A.
Q.
that?
No, sir.
What if anything did you say to Mr. Selph after
A. About that particular incident?
Q. Yes.
A. Nothing.
Q. What, if anything, did you say to him at that
time or thereafter about facing off of overflow drain
holes or tubs?
A. (No response.)
Q. Do you understand my question?
A. Repeat it please.
Q. After that, what, if anything, did you say to him
about his future facing off of overflow drain holes?
A. Later I did talk with him about grinding off to
make sure that he did not grind through any more. I
told him . . . only to grind very lightly, not to grind any
more big holes in them.
Q. (By Mr. Lederer) Did you report what had
occurred here in your conversation with Selph to Mr.
Bell?
A. Yes, I did.
Q. You reported your conversation with Selph to
Bell, is that correct?
A. Yes.
Bell, without stating what was said, testified that on
October 14 he discussed what had happened with Wendel.
He also testified that on October 15 Wendel informed him
that he had called Selph into the office and reprimanded
him for grinding the oversize hole, saying, "Robert you
know better than to put a hole through a tub like that. You
have ruined the tub."
Selph denied ever having been warned by a supervisor
about doing improper grinding or having been reprimand-
ed prior to his discharge for ruining the unit.
Respondent placed in evidence a document which
Wendel testified he placed in Selph's personnel file on
October 14, and which read as follows:11
FIRST VERBAL WARNING NOTICE
Universal-Rundle Corporation
Name-Robert Selph Clock No. 7 Dept. Whse Date
10/14/70
On 10/14, you committed the following offense(s)
against this Company's rules and regulations: #7
Damaging company property by grinding oversize hole in
tub.
You have received a copy of the Company Handbook
and should be familiar with our rules and regulations. If
there is anything you do not understand about your
The italicized portions of this and subsequent forms described in this
Decision represent filling in of blanks by pen. The rest of the quoted forms
represents printed material. The word "verbal" in the present warning
notice was also inserted by pen.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, or the Company rules, your foreman will be glad
to explain. However, we must insist on observance of
the rules. Your failure can easily be corrected, and your
Company will give whatever help you need. Please do
not let it happen again.
W. J. Wendel
Factory Manager, Foreman,
Personnel Department
I have received a copy of the above,
Employee may sign here Witness
The document was at no time brought to Selph's attention.
Bell and Selph both testified that Selph was to grind the
overflow area so that the unit could fit into something, Bell
mentioning the carton and Selph "a prescribed place,"
meaning the place in the house where the unit was to be
installed. In either case it is apparent that Selph was not
told merely to "face down" the area to provide a proper
seat for the washer, as claimed by Respondent, but to grind
off an amount of material constituting a substantial
obstruction to a proper fit.
I find that the larger hole on Respondent's Exhibit 6 was
the one made by Selph.12 Its carefully rounded, almost
circular, circumferences and its less rough and less irregular
walls were so different from the ragged, far from circular,
hole Wendel testified he made in Respondent's Exhibit 7
for identification by simply grinding through that it
corroborates Selph's testimony that it was not made by the
same method as Wendel used. I have credited Selph's
testimony as to how the oversized hole was made; i.e., that
he rounded out the hole he had spoiled "until it looked
nice." 13 I do not credit Wendel's testimony that Selph told
him that the grinder simply went through the tub before he
knew it.
More important to the present issue is the question of
what was said to Selph about the incident. Respondent
claims that it administered discipline on this occasion in the
form of a verbal warning by Wendel. Wendel's testimony
about his conversation with Selph following the incident,
quoted above, does not contain anything that could be
called a warning. Pressed by counsel, Wendel finally
testified, "Later I did talk with him about grinding off to
make sure that he did not grand through any more. I told
him . . . only to grind very tightly, not to grind any more
big holes." I found Wendel's testimony unconvincing and
have credited Selph's denial that he was warned or
reprimanded for the incident prior to his discharge. I find
that Respondent issued no verbal warning to Selph in
connection with his grinding the oversized hole and that the
record of such a warning placed in his file did not reflect
what had occurred.
was getting along, he saw Selph there grinding the bottom
of the outside edge of a tub. Selph had "scalloped" the edge
with the result that the tub would not sit flat on the floor.
He testified also that he told Selph that that was not his job
and that he should stay out of the grinding room. Selph
completely denied the incident and denied ever picking up
a grinder in the grinding room, or, indeed, ever using a
hand grinder at all except on the occasion of the oversize
hole. Joyce Rogers, who had started working for Respon-
dent on October 5 and was stationed in the warehouse near
the grinding room, testified that she had seen Selph use a
grinder on two or three occasions.14 Wendel testified that
the defect caused by Selph "could be corrected relatively
easy" in "possibly an hour." He admitted that on one
occasion in the latter part of September Lockhart, without
being disciplined in any way, had sawed off the edge of a
tub incorrectly. He explained that Lockhart's error had
been made in the course of adjusting a saw by a tnal-and-
error procedure, and was a "nun-of-the-mill thing" which
was to be expected. When Lockhart showed Wendel what
he had done, Wendel said, "Oh hell, don't worry about
something like that . . . we've got something we can do
with them;" and when foreman Williams saw the tub, he
said "that he had been wondering how he was going to get
that gold shower stall and now he knew." 15
In view of the testimony of Rogers, an impartial witness,
that Selph did on several occasions use a grinder , I infer
that he was being evasive about the skirt-grinding incident
and find that it did occur as testified by Wendel. I also find
that Wendel instructed him to stay out of the grinding
room.
Wendel testified that on October 15 he placed in Selph's
personnel file and sent to Bell a "Second Verbal Warning
Notice" referring to Selph. The Notice was on a form
identical with the "First Verbal Warning Notice," with the
printed word "First" lined through by pen and the words
"Second Written" inserted. The statement of offense read
as follows:
On 10/15, you committed the following offense(s)
against this Company's rules and regulations: # 7
Damaging company property by improperly grinding tub
skirt.
The document was at no time brought to Selph's attention.
Wendel explained his filling out the warning notice form,
as well as the one relating to the oversize hole, as follows:
Oh, we only write these out to put in the file so that I
will remember it or so it will jog my memory at the time
that I go through their file and look for anything that I
might be looking for in there.
7. Selph's cartoning-October 14 or 15
6. Improperly grinding the tub skirt-October 15
Wendel testified that on October 15, entering the
grinding room to check on how the new grinder, Yberra,
12 Selph impressed me as sincere when he testified categorically that
Resp. Exh 6 was not what he had worked on. However, while I have
discredited much of Respondent 's testimony , I do not believe that its
officials would deliberately substitute a piece of a different tub from the
one Selph had worked on.
13 As Selph was grinding with a large disc abrasive , an unsuitable too],
Two of the visitors to the plant on October 14, the day
Selph ground the oversize hole, namely Respondent 's sales
manager and its vice president of operations, criticized the
fact that the cartons containing finished tubs were not
it must be inferred that he worked at what he was doing rather
painstakingly. The General Counsel conceded that he had ruined the tub
14 Rogers had quit Respondent 's employ 6 days before she testified.
15 Wendel and Williams did not deny making those statements, except
that Wendel insisted that only one tub was involved , whereas Lockhart
testified that it was three.
UNIVERSAL RUNDLE CORPORATION 261
upright, thus presenting a poor appearance . Bell testified
that he and the two officials set up a conference call to
Bevin at the New Castle plant to find out whether a similar
problem had been encountered there, or whether Bevin
knew the cause . Bell testified that that same day he gave the
following "Factogram" to Wendel:
During his visit , this date, Bob Carlson, V.P. operations,
U/R complained of the poor quality in cartoning our
units. Please straighten this out with Robert Selph-his
work must improve (Cy Selph' s file).
By J. A. Bell Date 10/14/70
Wendel told Selph about the problem and said that he
thought the cartoning had not been done properly. They
opened some cartons . Selph testified that they consulted
blueprints and ascertained that the cause was that the
wooden skids at the bottom of the cartons had not been
made correctly . Wendel testified that while one carton had
an incorrectly adjusted top skid , the bottom skids were in
good order and that he demonstrated to Selph that the
cause of the trouble was that Selph had not assembled the
cartons with sufficient care. Bell testified that it had been
ascertained that the trouble was caused by the improper
placement of the skids , together with the improper
assembly of the cartons . I have credited Selph's account of
the incident to the extent that I find that improperly
adjusted bottom skids contributed to the problem. This
phase of Selph 's cartonmg was not mentioned in his
discharge notice or interview.
When the cartons were opened , Wendel pointed out to
Selph that some of the staples, which he had wrongly
placed , had marred the surfaces of the tubs and they had to
be refinished . 16 The refinishing had to be done over the
course of an hour to allow for drying. The refinisher did
other work in the meantime . Wendel opened other cartons
and found tubs similarly marred ; but he did not claim that
they had been packed after Selph had been informed of the
problem.
8. Profanity in the lunchroom-October 16
Charles Williams, the plant foreman, testified as follows:
On October 16 he sat at the same table in the employees'
lunchroom with Selph and some other men during the
entire lunch period; women, including Joyce Rogers, were
at the next table. His attention was drawn by "very loud
and abusive language" being used by Selph at the
beginning of the lunch period; i.e., "god damn and shit."
Selph did not address the remarks to anyone; Williams
thought he was talking about what was in his lunch. He
noticed that the women, including, specifically, Rogers,
were obviously offended by Selph and he told Selph to
watch his language since there were women at the other
table. He was unaware of any other swearing by Selph
during the rest of the lunch period; and he did not recall
any conversation taking place between Selph and any of the
women at the next table. That afternoon, at the conference
he had with Wendel, the plant superintendent, at the close
of work each day, he reported that Selph had used very
loud, abusive language in the lunchroom, which had
obviously upset the women-they were looking at each
other-and he recommended to Wendel that a warning be
issued. Wendel corroborated Williams as to their conversa-
tion. He stated that he did not inquire of Williams what
language Selph had used. He also testified that on October
19 he gave Selph the written warning described below
because he had already received two verbal warnings, and
he thought that a written warning might be more effective
in getting Selph to realize that Respondent was "trying to
keep him straightened out, to the point of not doing a thing
of this nature."
Rogers, who sat at the next table to Selph on October 16,
testified that on that occasion Selph, opening his lunch, had
exclaimed, "Well I'll be god damn, she didn't put a
sandwich in for lunch," and that he proceeded to call his
wife stupid and other names, including "bitch." 17 She
testified, also, that he got into a conversation or argument
with one of the women employees about adulterous
romances going on back in their common hometown, and
that during the entire lunch period Selph, talking loudly
enough for everyone in the lunchroom to hear, used swear
words, including several "god damns," "quite a lot" of
hells, and at least one "son of a bitch." Rogers testified that,
working in Respondent's and various other plants, she had
heard those words previously. She also stated that she knew
about the warning notice described below 18 and that Selph
asked her and the other women employees if they knew
whom he had offended. She testified, further:
We all talked about it.. . . About who turned Robert in
for using bad language in the lunchroom.... We were
wondering who did it.
I do not credit Williams' testimony that the women in the
lunchroom appeared to him to be offended by Selph's
language and find that they were not so offended. I also
find that Selph did not use the coarse word for excrement.
On October 19 Wendel summoned Selph to his office and
handed him a warning notice on a form similar to the one
used for the first and second "Verbal Warning Notices." 19
The statement of offense read: "Using Profanity In Lunch
Room-10/16/70." Selph asked what the reason was and
Wendel said that Bell had instructed him to write up,the
form, adding that he had been reported by a woman for
cursing in the lunchroom. Selph replied that he did not
recall offending anyone with profamty and asked for the
name of the woman. Wendel refused and Selph, with
Wendel's permission, went to see Bell . He asked Bell who
"this woman" was who had reported him for cursing. Bell
replied that he was not at liberty to tell.20
16 Wendel testified about the two problems as though they had been
discovered and taken up separately. I have credited Selph's testimony that
the marring of the tubs was discovered when the cartons were opened to
check on why they did not stand upright.
17 Rogers stated that she was not sure as to this epithet
18 Selph had posted the notice on the company bulletin board
i9 The form, an earlier or later version of the other form, differed from
the latter only in that the printed paragraph at the end did not include the
sentence , "You have received a copy of the Company Handbook and
should be familiar with our rules and regulations " Both forms were on
distinctive green paper
20 Wendel denied telling Selph that he had been reported by a woman
employee. He testified that he merely told Selph that he had been informed
that some women had been offended and that when Selph asked for their
names , he replied that he would not tell him Bell testified that he told
Selph that he did not know who had turned him in and would not tell him
if he did I have credited Selph's testimony about the two conversations
over that of Wendel and Bell
(Continued)
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent is correct in its contention that the Board
cannot substitute its judgment for Respondent's with
respect to what is a proper cause for discipline. It is,
however, difficult, although not impossible, to credit a
claim that in the year 1970 an employer would consider the
language used by Selph on his own time-hell, bitch, god
damn, and son of a bitch-worthy of a formal written
warning. The women employees did not so consider it; they
wondered who could possibly have reported Selph. Wendel
in effect recognized that the written warning strained
credulity. He justified it with the explanation that since two
verbal warnings for damaging company property had not
succeeded in discouraging Selph from swearing during his
lunch hour, a written warning was needed to straighten him
out. As Respondent had no formal system calling for a
written warning after two, or any other particular number
of, verbal warnings and this was supposed to be an ad hoc
decision, Wendel's explanation lacked logic. It also lacked
accuracy, since the alleged warning for the oversize hole
was fictitious. In view of the foregoing, and of Wendel's
false statement to Selph that a woman had complained, I
am convinced that Selph's language was not considered by
Respondent to be cause for a written warning. I find that
the warning was issued in order to lay a foundation to
justify the pretextual discharge of Selph which Respondent
had already decided on.
9. Selph's discharge-October 22
On October 19, within 10 or 15 minutes after receiving it,
Selph posted the first warning notice on the bulletin
board.21 Bell testified that he discovered it the next
morning and became infuriated. He said that he tore the
notice down, went to Wendel's office and threw it on the
desk, saying, "That tears it. I consider this the rankest form
of insubordination, and I didn't propose to tolerate it." He
testified further:
I crumpled up the Warning Notice and threw it in the
wastebasket.... [I ] went down to my office to sit down
and cool down and think about it. Subsequent to that
time, I called Mr. Wendel and Mr. Williams and Mr.
Lowe together to discuss the matter. At that time, I
came to the firm decision that Mr. Selph would be
discharged.
Bell testified that the meeting took place on October 21,
and that the four officials had before them Selph's file
containing the first warning notice and the first and second
verbal warning notices. He also testified that "machinery,"
which he did not specify, was placed in motion to
effectuate Selph's discharge. Bell's account of that meeting
was not corroborated by the others he said participated.
Wendel, in effect, contradicted it-he had no recollection
of such a meeting; he recalled only speaking about Selph to
Bell alone that day. I do not credit Bell and I find that the
meeting described by him did not take place. I find that the
decision to discharge Selph was reached in some other
manner not disclosed by Respondent.
On October 22 Selph was summoned to Bell's office and
informed that he was discharged. Bell handed him a
discharge notice on a printed form and orally gave as
reasons for the discharge the same matters that were stated
in the notice, which read in relevant part as follows:
Name : Robert Selph Dept. Warehouse Date: 10/22/70
IT HAS PREVIOUSLY BEEN NECESSARY TO WARN YOU ABOUT THE
FOLLOWING OFFENSES:
Date : lOjl4/70. Offense:
Date: 10/75/70 Offense:
Date :
,
1,O/l6/70 Offense:
Damaging company property by
grinding 4" hole thru overflow
in tub unit.
Damaging yco p y property by
improper grinding apron of tub
unit, not an assigned job.
Using profanity in lunchroom.
In addition to the above past record, on 10 / 19/ 70 you committed
the following additional offense(s): Insubordination-'posting
warningnotice on_bulletin board;_and at various times you
damaged company proper by stapling bottom of carton to front,
thereby marring units.
It is with regret that we are compelled to release you from
employment here.
Signed: Julian A. Bell
Factory Manager
21 The Employee 's handbook included the following - "BULLETIN periodically on plant bulletin boards. .. If you wish a personal notice
BOARDS. Information of importance and necessity to you is posted posted see your Supervisor first and get his approval."
UNIVERSAL RUNDLE CORPORATION 263
Selph pleaded with Bell to reconsider, but Bell stood by
his decision . He told Selph to come back in a week for his
pay, but Selph said that he would continue punching in
until he was paid. Bell thereupon had a special check drawn
for him and he left.22
The Employer's Handbook contained the following
under "Rules and Regulations:"
Permissible types of discipline shall include:
(1) Verbal correction or reprimand
(2) Verbal reprimand confirmed by written warning
(3) Disciplinary layoff from work
(4) Discharge
(5) A combination of the above
An employee who is reprimanded will have the
reprimand recorded and made a part of his permanent
record. If a written warning is issued , the employee will
receive a copy, a copy will go to the supervisor, and a
copy retained by the Office Manager.
7. Careless or inefficient performance of duties.
16. The misuse, destruction or damaging of any
company property or property of any employee.
19. Insubordination.
E. Concluding Findings as to Selph's Discharge
At the hearing Respondent went to great lengths to depict
Selph as an inept employee . One searches in vain, however,
for any proof that prior to the first warning notice for
profanity Respondent ever gave Selph the slightest reason
to think his work was so poor that it could affect his tenure
of employment . Even Bell's statement to Selph at the end of
his probation that he was not doing any good at his
spraying station was not calculated to deflate Selph's secure
feeling that he was part of something "like a family ." It will
be recalled that the plant was new, and everybody was
learning. There is no law that requires an employer to warn
an unsatisfactory employee that his poor work or conduct
might eventually lead to termination of employment.
Nevertheless, after an employee passes probation employ-
ers, more often than not, do give some such warning; and
its absence, if accompanied by other indicia of discrimina-
tory intent lends support to a finding of discrimination.
That Respondent normally acted on such a basis is
disclosed by its own rules and regulations and, even more
pointedly, by evidence it introduced at the hearing. In
striking contrast to the absence of warnings in the true
sense in Respondent's testimony as to what was said to
Selph orally about his errors, the file Respondent built up
breathed warning that his job was in jeopardy. To record
the two alleged verbal "warnings" Wendel used a form
which strongly implied the possibility of discharge. He
testified that he filed those documents merely to jog his
memory in the future. He did not explain why he used a
form with the menacing paragraph starting, "You have
received a copy of the Company Handbook", ,and ending,
"Your failure can easily be corrected and your Company
will give you whatever help you need . Please do not let it
happen again." The filed papers had not been shown to
Selph, and nothing remotely resembling that warning had
been said to him ; and if Wendel 's intent had been merely to
jog his memory , he would have used some other form or a
blank sheet of paper . Significantly , he went so far as to
specify in his own handwriting in each case that the rule
and regulation Selph had violated was "#7 ." I infer that
Respondent used the form so that Selph 's file would reflect
warnings of danger to his job which in fact had never been
given.
The difference between Selph 's personnel file with
respect to the period from August 10 to October 13 and
with respect to the period from October 14 to 16 is also
striking. For the earlier period the sole adverse comment
was the memorandum dated October 9 to the effect that he
would not make a good foamer and would be given the
benefit of the doubt and be transferred to the warehouse.
Notwithstanding the far from perfect work he had been
turning out and his causing the spray gun to gum up on a
number of occasions, Respondent never found it necessary
up to October 13 to document any incident with a record of
any type of "warning." In contrast, for October 14, 15, and
16 records of three warnings for specific acts appear.
Even more striking is the type of documentation that was
introduced into Selph 's file covering the period October 14
to 16. The October 14 record of a fictitious verbal warning
for the oversize hole and the October 16 pretextual warning
notice for profanity go far to establish that Respondent had
embarked on a plan to get rid of Selph . The record of the
October 15 "warning" also supports that conclusion.
Wendel admitted that the damage caused by Selph's
scalloping the tub "could be corrected relatively easy."
Selph, Lockhart, and many other employees had been
making many more expensive errors, as witnessed by the
200 units lined up in the warehouse at the end of October
awaiting corrective work, and the 22 additional units that
had to be scrapped . The employees responsible were not
given "warnings" in the nature of discipline, such as
Selph's. It is true that on October 15 Selph was doing
unassigned work . However , it is significant that Wendel did
not mention that fact in his report. Apparently Respon-
dent's plant had not reached so smooth a stage of
organization that that factor would have loomed large
enough in Wendel 's mind to warrant a formal record of a
disciplinary warning; Wendel reported only the damaging
of company property. That fact alone would not establish
that the "warning" was pretextual . However, in view of the
pretextual pattern disclosed by the October 14 and October
16 incidents and of the fact that the amount of damage was
relatively slight, I find that the October 15 "warning"
record sandwiched between them would not have been
22 The Employee's Handbook contains the following "You will be paid
by check each Friday for work performed in the preceding week.... If
you voluntarily terminate your employment with us, your final check will be
distributed on the Friday following the last week work was
performed.. ." [Emphasis supplied I
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made but for Respondent's already formed intention to get
rid of Selph.
Still to be considered is the question of Respondent's
motivation in laying such pretextual foundation for
discharging Selph. Respondent concedes that it was
opposed to having a union, and the General Counsel has
proved that Selph made prounion statements to Williams
immediately after the second or third meeting, which would
mean about October 7 or 14, and that Lockhart exposed to
Bell Selph 's specific union activity in showing the
employees the wage rates in Respondent's unionized plants
2 weeks or less before Selph's discharge, which would mean
October 8 or a few days later.
Respondent points out that it refrained from terminating
Selph at the end of his probation in the face of its awareness
at that time of his support for the Union and contends that
this negates any discriminatory motive. Respondent may or
may not have been aware then that Selph was prounion, or
that he was especially active, as disclosed to Bell by
Lockhart. However, the fact that an employee is on
probation does not give an employer immunity to
discriminate against him. Bell could have formed an
intention to get rid of Selph as early as October 8 without
necessarily following through until he could establish a
more convincing foundation for a discharge than was
available at that time. The question is not as to what
Respondent did on October 8, 9, or 10, but as to the
warnings it claimed to have written on October 14, 15, and
16. On those days Respondent knew that Selph had been
propagandizing the employees with its own wage rates in
unionized plants.
I find that Respondent issued the warning for profanity
and filed the first and second verbal warning notices in
Selph's personnel file because he was promoting the Union
and in order to lay a pretextual foundation for his
discriminatory discharge.
Notwithstanding that Selph, after posting the notice,
sought in sincerity to find out whom he had offended, I find
that his purpose in posting the warning was neither to
caution other employees nor to apologize. He was, rather,
protesting Respondent's unjust and discriminatory action
in issuing the warning for profanity. While he made
unauthorized use of the bulletin board for this purpose, it
can be inferred from Bell's testimony that that was not the
important thing in his mind. What Bell objected to was that
Selph was exposing an action of Respondent so patently
unfair and discriminatory that all Selph had to do was to
display it to the employees. Bell would have had the same,
or even a stronger, objection if Selph, instead of making
unauthorized use of the bulletin board, had showed the
warning notice round in the lunchroom. It is unnecessary to
decide whether Selph's action in posting the notice was a
protected concerted activity. He was not discharged for
that reason.23 Bell testified that he considered it rank
insubordination. At the same time he testified that he and
the rest of the managerial staff considered Selph a very
agreeable person, and discussed that fact on October 21
when it was decided to discharge him. While I have not
23 The discharge notice discloses that Selph 's cartoning deficiencies
played at best less of a role in his discharge than the two grinding
incidents I am omitting further discussion of those incidents beyond
credited that testimony, it does make plain that Selph had
not been insubordinate in the past-indeed, when Wendel
gave him the warning notice he asked if Wendel objected to
his talking to Bell about it. The fact is that Bell had decided
to discharge Selph before the notice was posted; he was
merely awaiting an opportune pretext and seized upon the
posting for that purpose. Selph 's unauthorized use of the
bulletin board was not such flagrant misconduct in
Respondent 's eyes , if it was misconduct at all , as necessarily
to call for his discharge . Distinguish Klate Holt Company,
161 NLRB 1606. I find that Respondent discharged Selph
because he had engaged in union activity, and that
Respondent thereby violated Section 8(a)(1) and (3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
I find that the activities of Respondent set forth above in
section III, occurring in connection with its operations
described in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and from like or
related invasions of the employees' Section 7 rights, and to
take certain affirmative action.
While the present record does not warrant the conclusion
that literature distribution in any nonwork area would
constitute a fire hazard, the order which I am recommend-
ing shall not be deemed to prevent Respondent from,
promulgating a nondiscriminatory rule prohibiting such
distribution in designated areas where it actually would
constitute such a hazard. In that event, however, the rule
and notices announcing it shall state expressly that it does
not apply in other nonwork areas.
The presence of the adverse notations and warnings in
the personnel records of Robert Selph constitutes a
constant `threat that he may suffer some disadvantage in the
future from those warnings or notations. In order to ensure,
and to give him and other employees assurance, that this
will not occur, Respondent shall be required to expunge
from its records the copy of the written warning notice
issued on October 19, 1970, and the records which have
been filed that verbal warnings were given him on October
14 and 15, 1970, as' well as of all notations with respect
thereto.
I am also recommending that Respondent' reinstate
Robert Selph to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges,
and that he be made whole for any loss of earnings suffered
by reason of the discrimination against him. The amount of
recalling that cartomng was only part of Selph's warehouse job, and he had
been on the job only a few days.
UNIVERSAL RUNDLE CORPORATION 265
backpay shall be a sum of money equal to the amount that
he normally would have earned as wages from the date of
the discrimination against him to the date of his
reinstatement or offer of reinstatement, less his net earnings
during said period, the backpay to be computed on a
quarterly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289, 291-294; and it
shall include interest at the rate of 6 percent per annum, to
be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. Respondent shall also
preserve and make available to the Board and its agents for
examination and copying payroll and other records
necessary for computation of the backpay.
Upon the basis of the foregoing findings of fact and of
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Universal Rundle Corporation, is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. International, Brotherhood of Pottery and Allied
Workers, AFL-CIO-CLC, is a labor organization within
the meaning of Section 2(5) of the Act.
4. By discriminatorily issuing a warning notice to, and
by discharging, Robert Selph Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
5. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 24
ORDER
Respondent, Universal Rundle Corporation , its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Issuing warnings to employees based on conduct
normally tolerated, or discharging them , or otherwise
discriminating against them because of membership in, or
activities on behalf of, International Brotherhood of
Pottery and Allied Workers, AFL-CIO-CLC, or any other
labor organization.
(b) Prohibiting employees from distributing union
literature during their nonworking time in nonwork areas,
or promulgating or maintaining any rule or regulation
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Sec. 102 48 of the Rules and Regulations, automatically become the
findings , conclusions, decision, and order of the Board , and all objections
thereto shall be deemed waived for all purposes.
25 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
containing such prohibition, except under conditions set
forth in section V of this Decision entitled "The Remedy."
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Robert
Selph to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Make Robert Selph whole for any loss of earnings he
may have suffered as a result of the discrimination against
him in the manner described in section V of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, work records, timecards, and all other data
necessary to analyze and compute the backpay required by
this recommended Order.
(d) Notify Robert Selph if presently serving in the Armed
Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(e) Expunge from the personnel record of Robert Selph
and from all other records of Respondent the warning
issued to him on October 16, 1970, and all notations
referring thereto.
(f) Expunge from the personnel records of Robert Selph
and from all other records of Respondent all notations
stating that verbal warnings were issued to Robert Selph on
October 14 and 15, 1970, for damaging company property.
(g) Post at its office and plant in Corsicana, Texas, copies
of the attached notice marked "Appendix." 25 Copies of the
notice, on forms provided by the Regional Director for
Region 16, shall, after being signed by a representative of
Respondent, be posted immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to ensure that said notices are not altered, defaced,
or covered by any other material.
(h) Notify said Regional Director for Region 16, in
writing, within 20 days from the date of the receipt of this
Decision, what steps Respondent has taken to comply
herewith 26
IT IS FURTHER ORDERED that the allegation of the
complaint that Respondent orally promulgated a no-
solicitation rule prohibiting its employees from soliciting
union membership and support on company property
during its employees' working and nonworking time be
dismissed.
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
26 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read-
"Notify said Regional Director for Region 16, in writing , within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith."