Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Oct 5, 1989

296 N.L.R.B. 1166 (N.L.R.B. 1989)

1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Westinghouse Electric Corporation -Micarta Division
and United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, Southern States
Organizing Office , a/w United Brotherhood of
Carpenters and Joiners of America , AFL-CIO.
Case 11-CA-12700
October 5, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On June 29, 1989, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
General Counsel and Respondent filed exceptions
and supporting briefs, and the Respondent filed a
brief answering the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions,2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Westing-
house Electric Corporation-Micarta Division, Pen-
dleton, South Carolina, its officers, agents, succes-
i The Respondent and the General Counsel have excepted to some of
the judge 's credibility findings The Board's established policy is not to
overrule an administrative law judge 's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
2 The Respondent argued to the judge that the 8(a)(1) interrogation
and threat of discharge allegations were improperly litigated because
they were neither the subject of separate unfair labor practice charges,
nor were they within the scope of the 8(a)(3) charge in Case 11-CA-
12700 The judge impliedly rejected this argument by finding merit to the
8(a)(l) allegations We agree The allegations that the Respondent unlaw-
fully interrogated employee Wright about the Union and threatened him
with discharge if he persisted in his union activities are "closely related"
to the charge that Wright was discharged for engaging in union activi-
ties See generally Overnite Transportation Co., 296 NLRB 669 (1989)
In dismissing the 8(a)(3) allegation , the judge rejected the General
Counsel's argument that Wright was treated disparately from employees
who engaged in similar misconduct We agree with the judge . The other
alleged incidents of employee misconduct were less serious than Wright's
March 30, 1988 altercation with employee Patterson Thus, Patterson was
obviously fearful that Wright would strike him , as evidenced by the fact
that he reported the incident to personnel and requested to remain there
until Wright had left the premises And, according to credited testimony,
Wright expressly admitted that he would have hit Patterson had a guard
not entered the cafeteria . Moreover , unlike the other incidents of alleged
employee misconduct , Wright had been specifically warned by a supervi-
sor 2 weeks before his discharge , in regard to clashes with another em-
ployee, that he could be discharged if he persisted in acting improperly
toward other employees.
sors , and assigns , shall take the action set forth in
the Order.
Jasper C Brown, Jr., for the General Counsel.
Craig M. Brooks, Esq. and Mary Helen Chiodo, Esq., of
Pittsburgh, Pennsylvania, for the Respondent.
Alice Dixon, Esq., of Atlanta, Georgia, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This matter was heard in Anderson, South Carolina, on
December 13, 1988. The complaint issued on June 2,
1988. It was based on a charge filed on April 22, 1988.
The complaint, as amended at the hearing, alleges that
Respondent violated Section 8(a)(1) of the National
Labor Relations Act (Act), by interrogating its employ-
ees concerning their union sympathies and by threatening
its employee with discharge because of that employee's
union activity; and that Respondent violated Section
8(a)(3) and (1) of the Act, by discharging its employee
James Earl Wright on April 1, 1988.
Respondent admitted the commerce allegations of the
complaint. Respondent admitted that it is engaged in the
production of laminated circuit boards at its facility in
Pendleton, South Carolina, and that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
On February 3, 1989, Respondent and General Coun-
sel filed posthearing briefs. On February 9 Respondent
filed "Respondent Westinghouse Electric Corporation's
Motion to Correct General Counsel's Post-Hearing
Brief." On February 21 I received "Counsel for General
Counsel's Motion in Opposition to Respondent's Motion
to Correct General Counsel's Post-Hearing Brief."
I hereby deny Respondent's motion to correct General
Counsel's posthearing brief. I do not consider the briefs
of the parties as evidence. To the extent briefs conflict
with, or misstate, credited evidence, I shall disregard the
briefs.
In 1988 the Union began an organizing campaign
among Respondent's employees at Pendleton, South
Carolina. James Earl Wright testified that that campaign
started during the first part of February 1988.
According to Wright, he was approached by his su-
pervisor Tom Carter during "the latter part of February
or the first of March," and questioned as to whether he
had been contacted by the Union.
Wright testified about another conversation with Tom
Carter. The record shows that that conversation was
placed around March 16 or 17. According to Wright,
Carter took him into the main office located in the engi-
neer's department, where no one else was present, and,
among other things, threatened Wright that he would be
discharged if he did not quit advocating the Union.
The final allegation involves the discharge of James
Earl Wright. The termination slip supplied to unemploy-
ment security by Respondent, which was signed by su-
pervisor Bryan Hamrick, indicated,
296 NLRB No. 153
WESTINGHOUSE ELECTRIC CORP.
Employee was terminated effective 3-31-88 for vio-
lation of rule A (7) "fighting , assault, or other disor-
derly conduct" as stated on page 58 Employee
Handbook . A class "A" violation are considered ex-
tremely serious misconduct and may result in imme-
diate discharge.
The three incidents mentioned above, form the basis of
the General Counsel 's complaint . It alleged that Wright's
discharge violated Section 8(a)(3) and ( 1), and that the
two earlier incidents violate Section 8(a)(1).
Interrogation
As shown above, according to James Earl Wright, he
was approached by his supervisor Tom Carter during
"the latter part of February or the first of March." Mike
Schiflett , Ted Patterson , and Gerald Rice were also
present . Wright testified that Carter:
come up to me and asked me had the union contact-
ed me and I told him no. And he said that the union
had contacted Mike Schiflett and Mike Schiflett had
told George Knight that the union had contacted
him. And at this time Mike Schiflett stepped up and
told me that he had given the union my name and
address and other people 's names and the union
would be contacting me.
Plant Engineering Supervisor Tom Carter testified that
he talked to James Earl Wright about Wright talking to
his coworkers about the union , because he had some
complaints from some of the employees that Wright had
been soliciting their signatures on union cards . Accord-
ing to Carter, the employees indicated that the solicita-
tion occurred at the employees ' workplaces during work
time in February 1988. Carter was not asked , and he did
not testify , as to whether he questioned Wright about
Wright's union activities.
Carter testified that he talked to Wright about
Wright's solicitation of union cards during an early
March meeting with Wright:
Basically that he could only do this on his break,
his lunch breaks , or his ten minute breaks, and
while the other employees were also on break, or in
the parking lot or outside the plant, but he could
not do it during their working time or during his
working time.
Gerald Rice , one of the employees identified by
Wright as being present during his late February or early
March , conversation with Carter , was called by Re-
spondent . Rice was not asked about the specific conver-
sations recalled by Wright and Carter . Rice was asked if
Carter ever questioned Wright or anybody else about
their union beliefs and Rice responded, "no."
Mike Schiflett did not testify.
Ted Patterson testified but he was not asked about the
conversation recalled by Wright and he was not asked
about the conversation recalled by Carter.
Rice and Patterson testified that Wright frequently
spoke in favor of the Union during shift meetings.
1167
Tom Carter admitted that he was aware where James
Earl Wright stood on the Union.
Findings
There is no evidence which specifically disputes James
Earl Wright 's account of an alleged conversation which
included Supervisor Tom Carter and fellow employee
Mike Schiflett.
In view of the state of the record I credit Wright's tes-
timony in that regard.
Even though Wright became known as a strong union
advocate , the substance of his early March or late Febru-
ary conversation with Carter shows that that conversa-
tion occurred before it became known that Wright fa-
vored the Union.
The credited account of that conversation shows that
Supervisor Carter questioned Wright as to whether
Wright had been contacted by the Union . In view of the
fact that Wright was not known as a union supporter at
the time he was questioned by Carter , the questioning
constitutes interrogation in violation of Section 8(a)(1) in
that it tends to restrain and coerce employees in the ex-
ercise of protected rights.
Threat of Discharge
As shown above , Wright testified about another con-
versation with Tom Carter around March 16 or 17. Ac-
cording to Wright , Carter took him into the main office
located in the engineer's department , where no one else
was present:
He told me that George Knight and Bess Payton
wanted to talk to me personally, that I had been
talking the union . And I said , "yes, sir, I've been
talking on the union while on break and while on
lunch break to maintenance out on the floor." And
Mr. Carter said, "well, you 've got to talk to George
Knight and Bess Payton about this incident." And
he said , "if you don 't quit advocating the union,
you're going to get fired ." So I told Mr . Carter that
I would talk to George Knight and Bess Payton
and asked him when. And he said as soon as possi-
ble. And-
Wright testified that he did talk with George Knight
and Bess Payton . As to his conversation with Knight,
Wright testified:
I told Mr . Knight that Tom told me that he wanted
me to talk to him and he said, "well, I know who's
up here . I know the organizers ." They's up here
from Hampton . He called Willard Wilson by name,
said Willard used to work for me . And I told Mr.
Knight that I wasn't talking union for the simple
reason I was afraid of getting fired . And he said,
"okay, forget about it." And we went on our ways.
Wright recalled that he talked to Payton on the morn-
ing after he had talked to Knight:
Ms. Payton told me that people, and groups of
people, had told her I had been talking about the
1168 DECISIONS OF THE, NATIONAL LABOR RELATIONS BOARD
union . And, I told her I had been talking about the
union oh breaks and on lunch time . And, I asked
Ms. Payton who give her this information and she
told me she couldn 't tell me . And, that was about
the end of the conversation. .
Tom Carter denied that he ever had a private conver-
sation with Wright about the Union . Carter denied that
he ever told Wright that he was to see George Knight
or Bess Payton because of his union activities.
Human Resources Manager Bess Payton testified about
a conversation she had with Wright:
I can 't remember exactly the date but it was some-
time at the beginning of mid March and Earl came
up to my office and he wanted to talk to me and
he-it was more or less he was asking me why I
thought that-he wanted me to know that he was
not advocating the union and why did I think that.
And I told him that a number of employees had
come to me and had indicated that he was out ad-
vocating the union . And I said which I really don't
have a problem with that except that you know that
it can only be done at certain times and he stopped
me and he said yes, I know what the rules are. And
he went through to tell me about that he knew that
he could only do it on break time, on his own time,
away from the plant , etc. He also said that I wanted
you to know that the way I feel about unions is that
they may have served their usefulness at the time of
my forefathers, but they've outlived that usefulness,
and that I am not advocating the union . And then
he got right up to me and he said I wouldn't lie to
you. And I didn 't respond and he left.
Payton testified that she did not ask Tom Carter to
have Wright talk to her about the Union and, in fact, she
called Carter after Wright came to her office and asked
Carter if he knew that Wright was coming to her office.
Carter told her that he had no idea that Wright was
coming to see her, that it was "completely something
that Earl had decided to do on his own as far as he
knew."
George Knight testified that he never asked Tom
Carter to have Wright see him about the Union. Knight
testified that he did have one conversation with Wright
about the Union . According to Knight he met Wright on
the sidewalk between the security guard shack and the
main employee entrance and Wright stopped him:
the conversation went something like, George, you
need to do something , you need to have employee
meetings, you need to talk to the employees, that
the union is out contacting people, two representa-
tives contacted him and were at his house and that
they were asking for names of additional employees,
names and addresses . And also, he went on to say
that essentially that the union had its purpose and
that he had a union background and something to
the effect that his Father would roll over in his
grave if he knew that he was not on the band-
wagon, more or less.
Q. On what band wagon?
A. The union bandwagon , but he told me that he
didn 't think we needed a union.
Findings
James Wright's version of this second conversation
with Tom Carter is supported by the record as a whole.
Wright testified that Carter told him he would have to
talk with Payton and Knight.
Wright did that. Even Payton and Knight admitted
that Wright came to them around that period of time, to
talk about his role in the union campaign.
Regardless of whether Payton and Knight asked
Carter to have Wright see them or if Carter took it on
himself to tell Wright to see Payton and Knight in an
effort to stop Wright's union activities , the impact on
employee Wright is the same.
I credit the testimony of James Earl Wright regarding
his conversation with Tom Carter. The entire record il-
lustrates that Wright's version is more likely to be true
than the version of Tom Carter. Of the two I was more
impressed with Wright's demeanor . I am convinced that
Carter did tell Wright that Wright would be discharged
if he did not quit advocating the union.
By telling Wright that he would be discharged if he
did not quit his union activities , Carter engaged in con-
duct which is violative of Section 8(a)(1) of the Act.
The Discharge
As shown above, the final allegation involves the dis-
charge of James Earl Wright . The termination slip sup-
plied to unemployment security by Respondent indicat-
ed,
Employee was terminated effective 3-31-88 for vio-
lation of rule A(7) "fighting, assault, or other disor-
derly conduct" as stated on page 58 Employee
Handbook . A class "A" violation are considered ex-
tremely serious misconduct and may result in imme-
diate discharge.
Respondent 's employee handbook provides , inter alia:
A. Any of the following actions by an employe
are considered extremely serious misconduct and
may result in immediate discharge:
7. Fighting , assault, or other disorderly conduct.
On April 5 Bess Payton wrote James Earl Wright re-
garding his discharge . That letter, in pertinent part,
reads:
On 3/11/88 you received a verbal warning for
use of threatening and abusive language involving
an employe on two separate occasions and told that
continued conduct of this nature may result in your
termination.
On 3/30/88 at approximately 12:30 AM, your
disorderly conduct precipitated a confrontation
with an employe whom you assaulted and upon
whom you threatened to commit bodily harm. This
WESTINGHOUSE ELECTRIC CORP.
was an extremely serious act of misconduct under
our Plant Rules of Conduct , Section A -7 covering
"fighting, assault or other disorderly conduct," a
dischargeable offense.
After a careful review of your total employment
and the specifics of this case we have no alternative
but to terminate your employment effective
3/31/88.
Wright testified that around March 11 or 12, 1988, he
had a run in with employee Butch Bowen . During that
encounter Bowen invited Wright to meet him outside
after work.
After his encounter with Bowen , Supervisor Tom
Carter told Wright to stay away from Bowen . Accord-
ing to Wright , Carter told him "don't even talk to"
Bowen.
Despite testimony that Wright made comments to the
effect that he did not support the Union , all the evidence
indicated that Respondent felt that Wright was the most
vocal union supporter among Respondent's employees.
Plant Manager Knight testified that he was aware that
Wright was pushing the Union . Knight indicated that he
was not aware of the identity of other union pushers.
Wright's supervisor , Tom Carter , testified that he
knew where Wright stood on the Union and that he "did
not know of anybody else out there" supporting the
Union.
Discussion
In consideration of the discharge issue I shall first con-
sider whether General Counsel established a prima facie
case . If General Counsel established a prima facie case
by showing that union activity played a part in the Re-
spondent 's decision to discharge James Earl Wright, I
must then look to see if that employee would have been
discharged or warned regardless of his union support
(Wright Line , 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir . 1981), cert . denied 455 U.S. 989 ( 1982); NLRB
v. Transportation Management Corp., 462 U . S. 393 (1983)).
The question of whether General Counsel has estab-
lished a prima facie case was considered by the Sixth
Circuit Court of Appeals in NLRB v. Townsend &
Bottum, Inc., 114 LRRM 3548 , 3551 (6th Cir. 1983):
Under the Board 's Wright Line test , the General
Counsel is required to show that antiunion animus
was a substantial or motivating factor in the em-
ployer's decision to discharge the alleged discrimin-
atee . This proof, standing alone , clearly meets the
statutory requirement . Absent a showing by the em-
ployer of affirmative reasons for its actions, not-
withstanding an employee 's exercise of his lawful
Section 7 rights under the NLRA , the ALJ would
automatically find an unfair labor practice based on
the preponder ance of all the evidence submitted.
In determining whether a violation has occurred I
must consider several factors including such things as
disparity-i.e., whether the involved employee was treat-
ed in an unusual manner-see Hussman Corp., 290
1169
NLRB 1108 (1988); Kent Corp., 275 NLRB 138 (1985);
Clear Pine Mouldings , 268 NLRB 1044 (1984); Diversified
Products, 272 NLRB 1070 (1984); Tom's Foods, 287
NLRB 645 (1987); Chem -Nuclear System , 281 NLRB 65
(1986); Storall Mfg. Co., 275 NLRB 220 (1985); Sioux
Products, 257 NLRB 353 (1981 ); McLean Trucking Co.,
257 NLRB 1349 ( 1981); Methodist Home, 253 NLRB 458
(1980).
Prima Facie Evidence
Here the record provides supports for General Coun-
sel. The plant manager and human resource manager ad-
mitted that James Earl Wright was the only employee
that they could recall by name as supporting the Union
at the time of his discharge . Additionally , as shown
above, Wright was the object of illegal interrogation and
a threat of discharge by Supervisor Tom Carter . Finally,
the actions which led to Wright 's discharge, originated
from a discussion regarding the Union.
However, should I find that the record established a
prima facie case , I must consider whether Respondent il-
lustrated that James Earl Wright would have been dis-
charged in the absence of his protected activities.
On April 5 Human Resource Manager Bess Payton de-
tailed the basis for his discharge in a letter to James Earl
Wright . Payton pointed to two events, a verbal warning
which Wright received on March 11 , 1988, and his con-
duct during an encounter with employee Ted Patterson
on March 30, 1988.
March 11
As to the alleged warning on March 11 , James Earl
Wright testified about a confrontation he had around
that time with employee Butch Bowen:
I carried my coffee in a quart thermos bottle and
Butch Bowen came in the canteen and he said,
"hey, old man, you got whiskey in that coffee jug."
I said , "no, where do you keep your pot?" And,
Butch got upset at this and we had a few words
passed . I don 't remember what was said exactly but
I called him a "kinky head" and he said , "well, I'll
just meet you in the morning after work ." And, the
rumor was out that he had lost his license, DUI, I
don't know . This is hearsay, but I told him , I said,
"you can 't meet me , Butch , you don't have any
wheels." And, he said , "I'll meet you after work if
you agree to it." So, that was about the end of the
conversation.
Q. Did you meet him after work?
A. No, sir.
Q. Did any supervisor ever speak to you about
this incident?
A. Yes, sir.
Q. Alright . Who talked to you?
A. Tom Carter.
Q. When was this?
A. The following morning.
Q. Alright . Where was it?
A. In the maintenance department.
Q. What was said?
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Tom asked me what happened between me
and Butch and I told him that I was teasing with
Butch but Butch got upset and was mad and that
Butch could dish it out, but he couldn 't take it.
Q. What happened , did Mr . Carter say anything
else?
A: At this time Mr. Carter told me that he-to
stay away from Butch , don't even talk to him, that
it seemed that somebody might have it in for me.
Wright admitted that despite Carter 's admonition for
him to stay away from Bowen , he confronted Butch
Bowen about whether Bowen "had gone to Personnel
on" Wright on the next workday . After that encounter
Carter phoned and asked Wright why he was harassing
Bowen:
So Mr. Carter was on the phone, Tom Carter, and
he said , "why have you been harassing Butch
Bowen?" I said , "Mr. Carter, I haven 't been harass-
ing Butch Bowen ," and I told him that Steve Kelly
was present when I talked to Butch. And he said,
"stay away from him , don't even talk to him, and
I'll talk to you in the morning."
Supervisor Tom Carter testified about his talk with
Wright concerning the Butch Bowen incident:
I did explain to him our rules of conduct and that
his job would be in jeopardy if that continued.
Q. Did you specify what he was to not continue?
A. I specifically told him that he could not con-
tinue to harass Butch Bowen or any other employ-
ees, specifically talking about Butch or trying to -
picking on Butch or trying to get him mad as he
had done.
He did make the statement that Butch could dish it
out but he couldn't take it... .
Finally Bess Payton testified that she mentioned the
Butch Bowen incident to Wright during the interview
that led to Wright's discharge:
I asked him , I said, "Earl, hasn 't Tom talked to you
before about harassing or arguing with employees"
and he said no, he really didn 't remember. And I
said , "Well, didn't he talk to you about Butch
Bowen and did he not tell you that your job was in
jeopardy if you continued to do that with Butch."
And he said yes, that Tom did tell him that, that he
could be fired. . . . you were aware that Mr.
Bowen had threatened Mr. Wright, threatened to
fight him?
A. Yes. . . . Although the threat was made, Mr.
Wright did not come to Personnel or to anyone else
that he feared for his well-being or that he was con-
cerned that Butch Bowen was going to actually
fight him. I did not learn about that until after the
fact, and only through the supervisor, and also
Butch Bowen going to Personnel. Never Mr.
Wright coming forward saying that he was con-
cerned about his-
Payton's testimony appears to agree with the situation
explained by Wright. Wright admitted that he made a
sarcastic comment to Butch Bowen about Bowen going
to Personnel . Wright never claimed that he went to Per-
sonnel and complained about Bowen.
Counsel for General Counsel argued in his brief, that
the above verbal reprimand demonstrated that Respond-
ent discriminated against Wright because "Respondent
was well aware that Bowen had threatened to fight with
Wright, Payton acknowledged that Bowen was not rep-
rimanded for his part in this matter . " (Tr. 150, 151.)
However, Respondent 's Employee Relations Manager
Bryan Hamrick testified that he did talk to Butch Bowen
and that he cautioned Bowen that this type incident
could cost him his job.
Moreover, I have trouble finding discrimination in the
respective treatments of Wright and Bowen , in view of
the record evidence regarding Wright's comments to su-
pervision.
According to Wright, the only supervisor that talked
to him about the Butch Bowen incident contemporane-
ous with his reprimand , was Tom Carter. Wright's testi-
mony as to what he reported to Carter-(see above)-
shows no basis for disciplinary action against Bowen:
Q. Did any supervisor ever speak to you about
this incident?
A. Yes, sir.
Q. Alright. Who talked to you?
A. Tom Carter.
Q. When was this?
A. The following morning.
Q. Alright. Where was it?
A. In the maintenance department.
Q. What was said?
A. Tom asked me what happened between me
and Butch and I told him that I was teasing with
Butch but Butch got upset and was mad and that
Butch could dish it out , but he couldn't take it.
Q. What happened, did Mr. Carter say anything
else?
A. At this time Mr. Carter told me that he-to
stay away from Butch, don't even talk to him, that
it seemed that somebody might have it in for me.
Nevertheless , according to Wright's own testimony, he
again confronted Bowen on his next work day, regarding
Bowen's reporting Wright to Personnel . Because of that
Wright received a phone call from Carter . Carter again
cautioned Wright to stay away from Bowen.
March 30
As to the record regarding Respondent's asserted basis
for taking action because of an encounter Wright had
with Ted Patterson , I am convinced that the testimony
of Human Resource Manager Payton accurately shows
what occurred during her interview with Wright. Payton
was the supervisor most directly involved with the dis-
WESTINGHOUSE ELECTRIC CORP.
charge as evidenced by her April 5 letter to James Earl
Wright. (See infra.)
Payton's testimony was clear and detailed. Her recol-
lection of her interview with Wright was supported by
other credited evidence regarding her investigation into
the matter which ultimately led to Wright's dismissal. I
found that Payton demonstrated good demeanor. To a
great extent Payton's testimony accorded with the testi-
mony of James Earl Wright regarding his confrontation
with Ted Patterson and his interview by Payton.
I credit the testimony of Bess Payton. As the record
shows, Payton was not employed by Respondent at the
time of this hearing.
Bess Payton testified about James Earl Wright's final
interview:
Well, when he came in I just asked him to tell me
what happened, tell me what happened last night
between you and Ted. And he started to tell me
that they were at supper and they started to talk
and about the union. And he indicated some com-
ments that were made about Mr. Knight' s meeting
and that he called-that he did call Ted a scab and
that Ted got upset about it. And, that Ted got up
from the table and told him again, do not call me a
scab. And then when Ted got over near the trash
can, Ted stopped, turned around again , and said,
"And Earl, you will not call me a scab again." And,
at that point he said he got up and went over, drew
his fist back, and told Ted that he would "punch
him out." And I asked Earl if he really meant that
he was going to punch Ted out. And Earl said yes,
he really meant it. I asked him again, "did you
really mean you were going to hit him? Did you
really mean that?" And he said, "Yes, I did." And I
said , "Why didn't you do it?" He said, "Well, I be-
lieve if the guard hadn't come in, I really would
have hit him." Okay. I asked Earl, I said, "well,
what made you so angry that you would want to
hit him just because he said don't call me a scab
again . I mean scab is not a nice word. Why would
you get that angry because he asked you not to call
him a scab again ." And he said, "well, because he
was talking down to me." And I said , "well, what
do you mean talking down to you. What do you
mean?" He said, "well, he was standing up and he
got all red faced, and he was talking loud, I was sit-
ting down." And I said, "you mean you considered
that as talking down to you? All he was saying to
you was don't call me a name again ." And he said,
"Yes, he took it that way, that he was being talked
down to."
Q. Did you ask Mr. Wright whether he made a
fist at Mr. Patterson?
A. Yes, I did.
Q. And what was the answer?
A. Yes, he said that he did make a fist.
Q. And did you ask him what, if anything, he
was going to do with that fist?
A. Yes. He said he made the fist and that he in-
tended to punch Ted.
1171
James Earl Wright testified regarding his run in with
Ted Patterson after plant manager gave an antiunion
speech on March 29:
And I asked Ted how he felt about the union and
he said, "my feelings are if everybody at Westing-
house signed a union card, that he wouldn't." And I
said they's names for people like that, scabs. Ted
said, "don't ever call me a scab." He got up from
the table. He started shouting, hollering, turned red
in the face, and walked over to the trash can and
continued to shout, "don't ever call me a scab. I
mean, don't ever call me a scab."
Q. How far was the trash can from where you
were sitting?
A. Approximately twenty foot.
Q. Okay. Go ahead.
A. I walked over to Ted and told him I'd punch
him out. Ted put up his hands to square off or as if
to fight and said, "well have at it." At this time the
security officer came in the door, Ted and I put our
hands down and went back to our work place.
Ted Patterson's testimony of his run-in with Wright
corroborated what Bess Payton testified she was told by
Wright . Patterson reported the incident to Human Re-
sources on the morning following his run in with
Wright. Human Resources Manager Bess Payton asked
Patterson to tell her what occurred.
Security Guard John Cantrell wrote an account of his
observation of the Wright-Patterson incident:
When I walked into canteen Ted Patterson was up
and pointing finger at Earl Wright and I heard him
say don't call me a scab he was real mad. Ted
walked over to water fountain and look back and
said I mean don't call me a scab. Earl jumped up
and went over to him and said well that is what
you are. then Ted walked out the door. Earl came
back to table and said boy he was mad wasn't he.
About that time Edne came in door I went to let
her into Medical Room and office.
Ted Patterson testified that he was afraid of what
might happen on the night he had the run in with
Wright and, because of that, he did not report the inci-
dent until the following morning . He reported the inci-
dent to Bryan Hamrick. Upon Bess Payton's arrival at
work Hamrick came to her office regarding Patterson's
report. Payton testified:
And before Bryan could really get into the detail,
Ted Patterson came back up to Personnel and said,
"Do you mind if I wait out here?" And, you know,
Bryan asked him why and he said, "Well, I'm con-
cerned, I'd rather that Earl went ahead and left the
parking lot before I went out there. I don't want
anything else to happen."
The above-credited evidence illustrates to me that Re-
spondent was presented with a situation that demanded
its attention. Respondent contended, and the record sup-
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ported , that it was presented with a complaint from an
employee that appeared frightened.
Respondent 's investigation of that complaint by Bess
Payton led to evidence , including admissions by Wright,
that Wright called Ted Patterson a "scab " because Pat-
terson responded to a question from Wright to the effect
that he would never sign a union card . After Patterson
became angry because Wright called him a scab , Wright
threatened that he would hit Patterson . Both Patterson
and Wright told Respondent that there was an immediate
danger.
Payton 's credited testimony shows that Wright told
her that he would have hit Patterson if the guard had
not come into the room.
I am convinced that the above evidence supports Re-
spondent 's determination that disciplinary action was in
order after it investigated the complaint of Ted Patterson
regarding his incident with Wright . In view of my deter-
mination that Respondent 's verbal warning to Wright on
March 11 was not discriminatorily motivated, I find
nothing illegal in Respondent 's decision to discharge
Wright following his encounter with Ted Patterson
absent evidence of disparity.
Counsel for General Counsel argued that Respondent
did not normally discharge employees for offenses simi-
lar to those allegedly committed by James Earl Wright.
Counsel argued that the evidence in that regard shows
the following.
Counsel for General Counsel points first to the inci-
dent between Wright and Butch Bowen, arguing that
Respondent 's failure to discipline Bowen illustrates dis-
parity . However the record showed that Bryan Hamrick
issued the same sort of verbal reprimand to Bowen that
was issued to Wright . Additionally , Bess Payton testified
that she did not receive a complaint from Wright show-
ing that Wright felt threatened by Bowen 's remarks. On
the other hand , the evidence shows that Butch Bowen
did complain to Respondent about Wright's activities.
Next, counsel points out that in the only other instance
of discharge for violation of the rule invoked , the dis-
charged employee actually struck a contractor at Re-
spondent 's plant.
Counsel points to testimony from employee Danny
Reid about an incident at Respondent's plant around 4
years back:
Mike Whitworth was the employee and we were
working on a plate cleaner . He had a cutting torch
and I was working right beside him and he raised
up with the cutting torch , the flame came across my
arm and I felt the heat, but it didn 't burn me. And,
I said something that made him mad and I 'm not ex-
actly sure what I said, but he told me to take that
torch and stick it up my butt.
Reid testified that the supervisor , who saw the inci-
dent , told him and Whitworth to "cool it, that we had to
work together ." Neither employee was disciplined.
Former employee Stewart Jenkins testified about an
incident at Respondent 's plant with Mike Whitworth in
late 1985, early 1986:
Basically I went to Terry Whitten to get, I
wanted to get work done in the lab . I went to see
Terry and get something line up and Mike Whit-
worth was fabricating something out of steel. I'm
not sure what it was. He was making something out
of steel there and I started asking Terry about get-
ting somebody in the lab to get some things fixed
up. And , I'm not sure why and I don 't remember if
Mike-I mean I don 't remember if I said anything
to Mike or he heard something that I was saying to
Terry and misunderstood it, but at any rate, he got
mad at me and-
He-eventually he said several things , eventually
he asked me to go out to the pump house or the fire
house and fight it out with him . And, that was
about-that was-
There was no physical confrontation.
The next day Terry Whitten came to me, and
then Tom Carter came to me, and then they both
said I needed to talk to Mike and work it out. And
I waited until Mike came back from lunch . I figured
he'd feel a little better after eating lunch and it'd be
easier for us to resolve it . And I caught him, he was
coming out of the lunch room and I stopped him
and I said I understand you, you know, you're
real-you 're still really hot at me, and he said yes,
and we talked about it in a matter of say five or six
minutes we were walking off laughing about it.
Jenkins testified that neither he nor Whitworth was
disciplined because'of the above incident.
Counsel for General Counsel argued that disparity was
illustrated by Supervisor Tom Carter's testimony about
an incident with employees Mike Jenkins and David Pat-
terson. The testimony in that regard follows.
Q. Okay . Let me see if I can refresh your recol-
lection here . Mr. Mike Jenkins and Mr . David Pat-
terson were involved in a verbal confrontation
wherein one of these two gentlemen threatened to
fight the other one. Isn 't it true that that came to
your attention? This is approximately two years
ago?
A. I was told about that incident , yes, sir, much
later, after it occurred.
I talked to the two-both of these two-these
two men worked for me and I talked to them later
about it.
I did learn that there had been words between
the two, yes.
Former first-line Supervisor Glenda Scott was called
by counsel for General Counsel.
Q. While working as a first line supervisor, did
you ever become aware of any verbal or physical
WESTINGHOUSE ELECTRIC CORP
confrontations between employees? Did any of that
ever come to your attention?
A. Yes, during those-
There was one between Derenda Robinson and
Joan Wilson.
... it's probably been approximately a year and
a half ago. . . . Joan came into the office and she
said Derenda had elbowed her. . . . Well , I called
Derenda in and I talked to her . In fact, I talked
with both of them . And Derenda said it was an ac-
cident , that she didn 't do it intentionally. . . . I
don't remember if it was a written warning. I know
that there were notes made of it. . . . There was a
similar situation with Marie Galloway and I don't
remember the operators that were involved, but
there was two or three operators involved. .. .
There was disagreement . Marie thought they were
slowing her down on the job and they weren't get-
ting it done as fast as she thought they should have
and there were some words exchanged. ... I
wrote it up. . . . She was reprimanded.
Counsel for General Counsel also pointed to testimony
of Manufacturing Manager Larry Hubbard regarding
meetings in consideration of whether to discharge
Wright. Counsel pointed out that Hubbard "did not deny
that Wright's union involvement was one of the factors
discussed by Respondent in determining whether to dis-
charge Wright." The actual testimony by Hubbard in
that regard , includes:
Q. I'm referring to the meetings that you had
among yourselves, among the supervisors? Was
there any discussions in those meetings regarding
Mr. Earl Wright 's union activities?
A. I don't remember for sure, but more than
likely, since there was word around out in the plant
that Earl was promoting it, there very possibly
could have been. But, I don't remember anything
specific.
Findings
Regarding the question of disparity , counsel for Gen-
eral Counsel argued that the evidence shows that James
Earl Wright was the first employee discharged under
rule A(7), other than an employee that was discharged
for actually fighting.
Respondent countered with the argument to the effect
that no one who engaged in an offense under rule A(7)
that was as serious as the March 30 actions by Wright
was not fired . In other words, the only employee that
exceeded the conduct of Wright , under Respondent's ar-
gument, was the employee that was fired for fighting.
I have weighed the above arguments and I must agree
with Respondent.
General Counsel did raise two instances which justify
concern as to disparity. It appears that the Reid-Whit-
worth and the Jenkins-Whitworth incidents should have
resulted in some form of disciplinary action against Whit-
worth.
1173
Nevertheless, the evidence does show that Wright ad-
mittedly engaged in actions on March 11 and 30 which
justify discipline over and above what should have oc-
curred regarding Mike Whitworth.
The testimony of James Earl Wright shows that he
told Supervisor Tom Carter that he had teased Butch
Bowen . It was after hearing Wright's account of that in-
cident that Carter first cautioned Wright to stay away
from Bowen. Wright admittedly ignored Carter's first
warning . He confronted Bowen about Bowen going to
Personnel . Carter then gave a second verbal warning for
Wright to stay away from Bowen.
Additionally Wright's testimony, and his credited ad-
missions to Human Resource Manager Payton , show that
he created the confrontation with Patterson by calling
Patterson a scab because Patterson said he would not
sign a union card . Subsequently Wright threatened to hit
Patterson at a time when Patterson had taken no action
to show that he wanted to fight.
I am aware that Wright testified that Patterson as-
sumed a defensive position with his fists up after Wright
threatened to hit him. Even if credited that evidence
really does not change the situation regarding James Earl
Wright . It is clear that Wright had already precipitated
an unfortunate incident , then threatened to fight Patter-
son because Patterson objected to being called a scab.
I am persuaded that General Counsel failed to prove a
violation . While the disparity arguments raised questions,
there was no evidence that Respondent had failed to dis-
charge anyone that engaged in conduct similar to that
engaged in by Wright. The actions engaged in by Wright
were serious. The evidence shows that he placed another
employee in fear of having to fight . Respondent was
confronted with direct evidence that Patterson feared
that Wright would force a fight and Respondent was
confronted with Wright 's admission that he would have
struck Patterson if the guard had not entered the room.
Despite the evidence of animus and knowledge of
Wright's union activity, I find that Respondent was justi-
fied in discharging Wright.
James Earl Wright was engaged in protected activity
when he discussed the union with other employees. At
the very least his discussions during nonworktimes such
as breaks , were protected . Where it is shown that an em-
ployee was engaged in protected activity the jurispru-
dence provides that an employee may be disciplined only
on a showing that the employer honestly believed that
the employee engaged in misconduct . In that case the
employer's honest belief provides a defense to a charge
of discrimination absent a showing that the employee did
not, in fact , actually engage in the alleged misconduct
(Rubin Bros. Footwear, Inc., 99 NLRB 610 (1952); NLRB
v. Burnup & Sims, Inc., 379 U.S. 21 (1964); see also Clear
Pine Moldings, 268 NLRB 1044 (1984); cf. Central Man-
agement Co., 284 NLRB 825 fn. 1 (1987), where the
Board found that the employer did not have a good-faith
belief that the employee engaged in misconduct and
Super One Foods, No. 601, 294 NLRB 462 (1989), where
the Board found that the evidence showed that the
reason given for the disciplinary action was not employ-
ee misconduct but was the protected activity).
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here the record illustrated that Respondent had an
honest belief that James Earl Wright engaged in miscon-
duct. General Counsel did not show that James Earl
Wright did not actually engage in misconduct.
CONCLUSIONS OF LAW
1. Westinghouse Electric Corporation-Micarta Divi-
sion is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent , by coercively interrogating its employ-
ees concerning their union activities and by threatening
its employee with discharge unless that employee quit
advocating the Union , violated Section 8(a)(1) of the
Act.
4. Respondent did not engage in conduct violative of
Section 8(a)(1) and (3) by discharging and refusing to re-
instate James Earl Wright.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
necessary to analyze the amount of backpay due under.
the terms of this Order.
(b) Post at its facility in Pendleton , South Carolina,
copies of the attached notice.2 Copies of the notice, on
forms provided by the Regional Director for Region 11,
after being signed by the Respondent 's authorized repre-
sentative , shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered , defaced, or covered by any other materi-
al.
2 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, it is ordered that Respondent, Westinghouse
Electric Corporation-Micarta Division , Pendleton,
South Carolina, its officers, agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning
their union activities ; and threatening its employee with
discharge unless the employee stops advocating the
Union.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, and time-
cards, personnel records, reports, and all other records
I 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
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT coercively interrogate our employees
concerning their union activities.
WE WILL NOT threaten our employees with discharge
unless they quit advocating the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, Southern
States Organizing Office, affiliated with United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
or with any other labor organization as their collective-
bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WESTINGHOUSE ELECTRIC CORPORA-
TION-MICARTA DIVISION