Whirlpool Corp.

National Labor Relations Board - Board Decisions

Jul 5, 2002

337 N.L.R.B. 726 (N.L.R.B. 2002)

726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Whirlpool Corporation and United Steelworkers of
America AFL–CIO, CLC. Case 8–CA–28612
July 5, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
On August 9, 2000, Administrative Law Judge Earl E.
Shamwell Jr. issued the attached decision. The Respon­
dent filed exceptions, a supporting brief, and a reply
brief. The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order2 as modified.
1. We adopt the judge’s finding that Shift Supervisor
Dick Kretz violated Section 8(a)(1) by informing em­
ployees that they were not allowed to distribute union
literature on company property. Accordingly, we have
entered a remedial order for that unlawful conduct.
Our colleague assumes that the Respondent’s conduct
was unlawful, but finds, pursuant to the Board’s holding
in American Federation of Musicians Local 76 (Jimmy
Wakely Show), 202 NLRB 620 (1973), that a remedial
order is not warranted. Contrary to our colleague’s con­
tention, Jimmy Wakely is not applicable here. In that
case, the unfair labor practice complaint alleged only one
violation, i.e., a threat to bring charges against a union
member in violation of Section 8(b)(1)(B) of the Act.
Further, the threat had been effectively rescinded before
the complaint issued. In these circumstances, the Board
found that the case involved “one of those ‘infinitesi­
mally small abstract grievances [that] must give way to
actual and existing legal problems if courts [and the
NLRB] are to dispose of their heavy calendars.’” 202
NLRB at 621 (footnote citations omitted). Accordingly,
although the alleged conduct may have been in “techni­
cal contravention of the statute,” the Board concluded
that it “ought not to expend the Board’s limited resources
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001). Further, we shall substitute a new notice in accordance with
our recent decision in Ishikawa Gasket American, Inc., 337 NLRB 133
(2001).
on matters which have little or no meaning in effectuat­
ing the policies of the Act,” and declined either to find a
violation or issue a remedial order. 202 NLRB at 622.
Here, by contrast, several unfair labor practices were
alleged and found, including other violations of Section
8(a)(1), and the violations of Section of 8(a)(3) that are
discussed below. Indeed, as shown below, the 8(a)(1)
violation at issue here is part of the evidence demonstrat­
ing that the Respondent harbored antiunion animus, an
essential element in finding that the alleged 8(a)(3) con-
duct was unlawfully motivated. Accordingly, the con-
duct here of Shift Supervisor Kretz cannot reasonably be
considered as one of “infinitesimally small abstract
grievances” that the Board was concerned with in Jimmy
Wakely. Rather, it is part of a pattern of unlawful con-
duct that was litigated and adjudicated in order to fully
resolve all of the allegations of the complaint.
For these reasons, we need not reach the issue, raised
by our colleague, of whether the holding of Jimmy
Wakely should be applied in cases involving findings of
multiple unfair labor practices, one of which is a rela­
tively minor violation of the Act having no connection to
the other violations found. On its facts, this is not such a
case.
2. We also adopt the judge’s finding that the Respon­
dent violated Section 8(a)(3) of the Act by disciplining
employees David Hamilton and Jerry Pore. The evi­
dence establishes that both Hamilton and Pore were early
and open union activists, a fact known to the Respon­
dent. The Respondent harbored antiunion animus, as
shown by its unlawful attempt to prevent employees
from distributing union literature, disciplining Hamilton
for “harassment” solely on account of his union discus­
sions with employees, and disciplining Pore for distribut­
ing union literature on company property. Thus, as the
judge found, the General Counsel carried his initial bur-
den of showing, pursuant to Wright Line,3 that Hamil-
3 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981);
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
No party contends that Wright Line is not the appropriate analysis
here. Thus we do not pass on our colleague’s contention that the disci­
pline of Hamilton and Pore should be analyzed pursuant to the standard
set forth in NLRB v. Burnup & Sims, 379 U.S. 21 (1964). However,
assuming arguendo that Burnup & Sims is applicable here, we agree
with our colleague that a violation would be established under that
standard as well.
Member Liebman observes that the Board is rejecting the Respon­
dent’s defense that it held a “reasonable, genuine belief” that either
Hamilton or Pore engaged in misconduct in the course of soliciting
fellow employees about union matters. Accordingly, it need not decide
the issue whether their union activities lost the Act’s protection or
“crossed over the line separating protected and unprotected activity.”
Phoenix Transit System, 337 NLRB 510 (2002). See also Neff-Perkins
Co., 315 NLRB 1229 (1994); and Felix Industries, 331 NLRB 144
(2002), remanded 251 F.3d 1051 (D.C. Cir. 2001).
337 NLRB No. 117
WHIRLPOOL CORP. 727
ton’s and Pore’s protected activities were a motivating
factor in the Respondent’s decision to discipline them.
Accordingly, the burden shifted to the Respondent to
show that the discipline of Hamilton and Pore would
have occurred even in the absence of their union activity.
We agree with the judge that the Respondent did not sat­
isfy its burden.
The Respondent admitted that it acted pursuant to an
honest belief that these two employees had engaged in
improper conduct. Regarding Hamilton, the Respondent
contended that it disciplined him solely because of em­
ployee complaints about his conduct, and not because of
his support for the Union. However, in the disciplinary
discussion with Hamilton regarding the employee com­
plaints, Supervisor Beck linked the complaints to Hamil­
ton’s union activities. Beck admonished Hamilton that
he “should not be harassing the ladies and talking about
the Union during work time.” The judge found that the
Respondent did not present sufficient evidence from the
purported complaining coworkers (who did not testify at
the hearing) regarding: the precise nature of Hamilton’s
alleged conduct; what in his behavior was offensive,
threatening, or intimidating; how or whether his conduct
interfered with their work or job performance; and,
whether his conduct was, in fact, prohibited by Respon­
dent’s policies and rules.
Similarly, the Respondent disciplined Pore for
“inappropriate activity . . . handing out [union] literature
on company time,” in violation of a company rule, based
on complaints allegedly lodged by Pore’s coworkers.
The coworkers were not called to testify. However, Pore
credibly testified that he had discussed the Union with
employees during worktime, but had not generally
handed out literature except for instances when employ­
ees specifically requested it. The Respondent conceded
that it had routinely allowed Pore and other employees to
engage in nonbusiness discussions and solic itation on the
work floor during work hours. The judge found insuffi­
cient evidence to support a finding that Respondent rea­
sonably and genuinely believed that Pore had engaged in
misconduct, i.e., violation of its solicitation rule.
The discipline of Hamilton and Pore is in stark contrast
to the Respondent’s usual practice of permitting a wide
range of nonbusiness activities on the work floor during
work hours. The record contains no evidence that any
employee was disciplined for such nonunion, non-
business activities. Having found that the Respondent
did not hold a “reasonable, genuine belief” that either
Hamilton or Pore engaged in misconduct when it disci­
plined them, the judge declined to rely on their alleged
acts of misconduct and concluded they were “mere shib­
boleths to justify interference with rights guaranteed em­
ployees under the Act.” We agree.
In its exceptions, the Respondent contends that the
judge violated its due process rights by not putting the
Respondent on notice that its “honest belief” concerning
the reason for disciplining Hamilton and Pore would be
in issue.4 We find no merit in this contention.
The fundamental elements of procedural due process
are notice of the matters of fact and law asserted and an
opportunity to be heard.5 We find that the notice given
to the Respondent met these due process requirements.
The complaint broadly alleged that the Respondent
violated Section 8(a)(3) of the Act by dis criminatorily
disciplining Hamilton and Pore.6 It was not limited to a
theory of disparate treatment. Thus, the complaint placed
in issue any matter pertaining to the Respondent’s deci­
sion to discipline, including: the Respondent’s motive
and basis for reaching the decision; the events that tran­
spired to cause the Respondent’s belief that Hamilton
and Pore had violated its rules; and the reasonableness of
that belief, based on the available evidence. Thus, once
the General Counsel met his initial burden of showing
that the Respondent acted for discriminatory reasons, the
burden shifted to the Respondent to establish its defense
—be it that it acted pursuant to an “honest belief” or oth­
erwise acted for lawful reasons. Accordingly, the rea­
sonableness and genuineness of the Respondent’s belief
that discipline was warranted was essential to the Re­
spondent’s defense against the allegations of the com­
plaint. Again, for reasons set forth by the judge and set
forth above, we conclude that the Respondent failed to
establish its defense.
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
4 In this regard, the Respondent relies on Stanton Industries, 313
NLRB 838, 852–854 (1993). There, the Board adopted, in the absence
of exceptions, an administrative law judge’s finding that one of the
General Counsel’s theories of an 8(a)(1) violation should be rejected
because it was not fairly encompassed within the allegations of the
complaint. Essentially, the Stanton judge ruled that the General Coun­
sel had limited his theory of a violation to one of disparate treatment. It
is well settled that the Board’s adoption of a portion of a judge’s deci­
sion to which no exceptions are filed does not serve as precedent for
any other case. ESI, Inc., 296 NLRB 1319 fn. 3 (1989); Anniston Yarn
Mills, 103 NLRB 1495 (1953). In any event, we find Stanton Indus­
tries distinguishable from this case. Here, as we find below, the com­
plaint allegations were not limited, but rather placed squarely in issue
the Respondent’s asserted “honest belief” in the validity of its basis for
disciplining Hamilton and Pore.
5 See, e.g., Henry Bierce Co. v. NLRB, 23 F.3d 1110 (6th Cir. 1994),
and cases cited there.
6 The complaint also alleged that this conduct constituted an inde­
pendent violation of Sec. 8(a)(1). The judge did not address this allega­
tion. The General Counsel did not except to the omission.
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
modified below and orders that the Respondent, Whirl-
pool Corp., Findlay, Ohio, its officers, agents, succes­
sors, and assigns shall take the action set forth in the Or­
der as modified.
1. Substitute the following for paragraph 2(c).
“(c) Preserve, and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces­
sary to analyze the amount of backpay due under the
terms of this Order.”
2. Substitute the attached notice for that of the admin­
istrative law judge.
CHAIRMAN HURTGEN, concurring in part and dissenting
in part.
1. My colleagues find a violation and enter a remedial
order with respect to supervisor Kretz’ telling off-duty
employees that they were not allowed to distribute union
literature on company property.
Contrary to my colleagues, I do not believe that Re­
spondent’s conduct warrants a remedial order in this re­
spect. Accordingly, I would dismiss the allegation.
The evidence establishes that on November 13, 1996,
about 80 minutes before the scheduled start of their shift,
employee John Trice and a group of 6 to 8 other employ­
ees assembled on the Respondent’s property near the
northeast door to the plant and began distributing Union
literature. Almost immediately, a security guard ap­
proached the employees and asked them what time their
shift began. Trice answered the question. The guard told
Trice and the other emp loyees that they were not allowed
on company property until 15 minutes prior to their shift.
Trice responded that such a rule had never been en-
forced. Without further comment, the guard returned to
the plant to check on what, if anything, should be done.
The employees remained and continued to distribute lit­
erature.
About 10 minutes later, Shift Supervisor Dick Kretz
approached the employees and told them that employees
were not permitted to hand out literature on company
property. Trice responded that the employees’ distribu­
tion of literature was “legal” and suggested that Kretz
“should study the law [on the subject].” Kretz said he
would do so and returned to the plant. He immediately
consulted Sandy Franks, the director of the Respondent’s
human resources department. Franks told Kretz that em­
ployees had “every right to stand there,” and that em­
ployees were entitled to distribute union literature on
nonwork time in nonwork areas. Accordingly, Kretz
permitted the activity to continue. The employees con­
tinued to distribute union literature without further inter­
ference. There is no evidence that any employee was
disciplined or otherwise adversely affected as a result of
these events.
There is no evidence that either the security guard or
Kretz was confrontational or threatening. To the con­
trary, when the employees protested, the guard went to
check as to what, if anything, should be done. The same
scenario was repeated by Supervisor Kretz. The entire
process of checking (by the security guard and Kretz)
took only a few minutes. During this period, the Section
7 activity continued unabated. In these circumstances, I
see no need for the Federal Government to step in, pro-
claim a Federal law violation, and issue a remedial order.
The Respondent’s agents acted responsibly—they
checked on the issue and promptly came up with the cor­
rect answer. The employees continued their Section 7
activities without interruption. I would leave matters at
that.
My position is supported by Board precedent. In
American Federation of Musicians Local l76 (Jimmy
Wakely), 202 NLRB 620 (1973), the Board said:
We believe the courts are coming to the view that vio­
lations having little or no impact upon employee exe r­
cise of statutory rights should not form the basis of ei­
ther a proceeding or a remedy under our Act.
The Board concluded:
In sum, in view of the increasing need for exp e­
dition in the processing of cases, we have concluded
that we ought not expend the Board’s limited re-
sources on matters which have little or no meaning
in effectuating the policies of this Act. Thus, in this
insubstantial case, we would find that the conduct
involved, although it may have been in technical
contravention of the statute as interpreted by this
Board, was nevertheless so insignificant and so
largely rendered meaningless by Respondent’s sub-
sequent conduct that we will not utilize it as a basis
for either a finding of violation or a remedial order.
The complaint herein should be, and it hereby is,
dismissed.
For similar reasons, I would dismiss the allegation
herein.1
My colleagues argue that Jimmy Wakely is distinguis h-
able. They say that the allegation at issue there was the
sole allegation in the complaint, in contrast to the instant
1 See also my concurring opinion in Teamsters Local 85, 328 NLRB
72 (1999).
WHIRLPOOL CORP. 729
case where the allegation at issue is one of several allega­
tions of the complaint. The argument has no merit. As
noted and quoted above, the rationale of Jimmy Wakely
rests on broad policy grounds, and is not subject to the
narrow limitation imposed by my colleagues. Further,
based on those enunciated policy grounds, there is no
rational distinction between a case where a de minimus
allegation stands by itself and a case where the de mini­
mus allegation is accomp anied by other allegations. In
the former situation, there is needless litigation of an
entire case; in the latter situation, there is needlessly pro-
longed litigation. In both instances, it would save time
and money to refrain from litigating these matters.
I also recognize that, in the instant case, there are other
violations of the Act. However, I do not view that as­
serted distinction as dispositive. The other violations are
being remedied, as they should be. However, there is no
need to clutter up this case with a piece of conduct that
was effectively rescinded before it caused any harm.
My colleagues also say that the conduct at issue shows
animus to support an 8(a)(3) violation. I do not agree
that animus is shown by an employer’s conduct that is
promptly rescinded because the employer recognizes that
the employee activity is protected.
My colleagues also note that the rescission of the
unlawful conduct in Jimmy Wakely occurred before the
issuance of the General Counsel’s complaint. In re­
sponse, I note initially that the conduct here was also
rescinded before the issuance of the complaint. In any
event, these factors are not determinative. If unlawful
action is rescinded, for whatever reason, before there is
any harm done to protected persons, it should not make
any difference whether the rescission was because of a
pending complaint or otherwise. The important point is
that a rescission occurred before any harm was done. As
in Jimmy Wakely, there was “little or no impact upon
employee exercise of statutory rights.”
2. I agree with my colleagues that Respondent unlaw­
fully disciplined emp loyees Hamilton and Pore. How-
ever, my basis for doing so is somewhat different.
I do not agree that this case presents a Wright Line
situation. In a Wright Line situation, there is an issue as
to the employer’s motive, i.e., was the employer’s disci­
plinary action motivated by protected activity or by some
unprotected conduct. In the instant case, the motive is
clear. It is clear and uncontested that Respondent disci­
plined Hamilton and Pore because of the manner in
which they solicited fellow employees concerning union
matters. The issue is whether their manner of solicitation
crossed the line into unprotected harassment. I agree
with the judge that Respondent has not shown a good-
faith belief that Hamilton and Pore crossed that line.
And, even if Respondent has shown this, the evidence
indicates that they did not in fact cross that line. Thus,
the discipline was unlawful. See NLRB v. Burnup &
Sims, 379 U.S. 21 (1964).
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discipline employees engaged in lawful
protected activity.
WE WILL NOT discipline (counsel) or otherwise dis­
criminate against employees because of their known or
suspected membership in and/or support for United
Steelworkers of America, AFL–CIO, or any other labor
organization.
WE WILL NOT tell employees that they are not allowed
to distribute union literature on company property.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL make David Hamilton and Jerry Pore whole
for any loss of earnings and other benefits resulting from
their disciplines because of known or suspected member-
ship in and/or support for United Steelworkers of Amer­
ica, AFL–CIO, less any net interim earnings, plus inter­
est.
WE WILL, within 14 days from the date of this Order,
remove from our files, including so-called yellow cards,
any reference to David Hamilton and Jerry Pore’s unlaw­
ful disciplines (counseling), and within 3 days thereafter,
notify them in writing that this has been done and that
the disciplines will not be used against them in any way.
WHIRLPOOL CORPORATION
Nancy Recko, Esq., for the General Counsel.

Frederick L. Schwartz, Esq. (Littler Mendelson), of Chicago,

Illinois, for the Respondent.
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Patrick Gallagher, of Warrensville Heights, Ohio, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This
matter was heard by me in Findlay,1 Ohio, on February 15,
2000, upon a complaint dated August 31, 1999, charging
Whirlpool Corporation (the Respondent) with violations of
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act). This complaint was based on charges filed by the United
Steelworkers of America AFL–CIO, CLC (the Union) on Octo­
ber 21, 1966, and as amended on June 25, 1997, with the Na­
tional Labor Relations Board (the Board) in Region 8. The
complaint2 charges that the Respondent violated Section 8(a)(1)
of the Act by removing prounion literature and notices from
employee bulletin boards; informing an employee that it would
close the facility if the Union were selected as the employees’
collective-bargaining representative; informing employees that
selection of the Union as their collective-bargaining representa­
tive would be futile as it would not bargain in good faith with a
union; and informing employees that they were not allowed to
distribute union literature on company property. The Respon­
dent is also charged with violating Section 8(a)(3) of the Act by
discriminatorily disciplining two employees, David Hamilton
and Jerry Pore, because of their union activities.3
On September 9, 1999, the Respondent timely filed its an­
swer admitting, among other things, the jurisdictional allega­
tions, the labor organization status of the Union, the agent, or
supervisory status of Mark Beuhrer, manufacturing manager;
Lee Beck, Steve Dearth, Dick Krenz, Ron Linke, Steve Oren,
and Monte Sampson, manufacturing supervisors; Michelle
Obenour, assistant warehouse supervisor;4 and Donald Holtgre­
ven, administrative supervisor. The Respondent generally de­
nied committing any unfair labor practices and asserted certain
defenses.5
Based on my review and consideration of the entire record in
this case and my observation of the witnesses and their de-
1 The transcript often refers to “Finley”; however, this is a misspell­
ing of the town’s name (properly spelled as Findlay) as noted by the
General Counsel in her brief wherein she moves to amend and correct
the transcript to reflect the proper spelling of the town. I have granted
this motion.
2 Paragraph 8 of the complaint was withdrawn by the General Coun­
sel at the hearing, with prior notice to the Respondent’s counsel who
did not object at the hearing.
3 Without objection from the Respondent, the General Counsel
moved to amend the complaint with regard to the date of alleged dis­
criminatee Pore’s discipline, from October 6 to October 10, 1996. The
Respondent did not object, and I granted the amendment.
4 The Respondent originally denied that Obenour held the position
alleged in the complaint. At the hearing, however, the Respondent
stipulated that irrespective of her title, she was a supervisor as defined
by the Act during the relevant period. (Tr. 11.)
5 The Respondent did not pursue or argue certain defenses stated in
its answer at trial or in its brief. However, I have considered these
defenses in light of the entire record herein and would conclude these
purported defenses to be without merit.
meanor, as well as the arguments and briefs of the General
Counsel and the Respondent,6 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the manufacture of household
appliances at its offices and facility in Findlay, Ohio. During
the last 12 months, and annually, the Respondent, in conducting
its business operations sold and shipped from its Findlay, Ohio
facility, goods valued in excess of $50,000 directly to points
outside the State of Ohio. The Respondent admits, and I find
and conclude, that at all times material, it is, and has been, an
employer engaged in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Union, Charging Party, is admittedly a labor organiza­
tion within the meaning of Section 2(5) of the Act.
II. BACKGROUND7
The Respondent manufactures household appliances such as
refrigerators and dishwashers at its Findlay plant. The Respon­
dent’s employees have not been represented by a union for over
20 years. Around June 1996, the Union and various employees
of the Respondent undertook a campaign to organize the Com­
pany’s employees and encourage them to select the Union as
their exclusive collective-bargaining representative. On or
about October 28, 1996, the Union filed with the National La­
bor Relations Board (the Board) a petition seeking to represent
the Respondent’s Findlay employees; an election was held on
December 13, 1996, and the results—the Union lost—were
certified by the Board’s Regional Director for Region 8 on
December 30, 1996.
III. THE UNFAIR LABOR PRA CTICES ALLEGATIONS
A. A Preliminary Discussion of the Legal Principles
Applicable to the 8(a)(1) Allegations
Employer interference, restraint, or coercion of employees
who exercise their statutory right to form, join, or assist labor
organizations are unlawful under Section 8(a)(1) of the Act.
The test under Section 8(a)(1) does not turn on the employer’s
motive or whether the coercion succeeded or failed. William-
house of California, 319 NLRB 699 (1995). The test is
whether the employer engaged in conduct which it may be
reasonably said tends to interfere with the free exercise of em­
ployee rights under the Act. Gissel Packing Co., 395 U.S. 575
(1969); Almet, Inc., 305 NLRB 626 (1991); American Freight-
ways Co., 124 NLRB 146, 147 (1959). Thus, it is violative of
the Act for the employer or its supervisor to engage in conduct,
including speech, which is specifically intended to impede or
discourage union involvement. F. W. Woolworth Co., 310
NLRB 1197 (1993); Williamhouse of California, Inc., 317
6 The Charging Party did not submit a separate brief.
7 In this section, I have outlined certain matters that factually are not
in dispute and/or represent findings on my part based on factual stipula­
tions of the parties and the credible evidence (including the reasonable
inferences therefrom) of record. To the extent that these findings are
contrary to or inconsistent with other evidence of record, I have specifi­
cally credited the findings in this section over any other arguably con­
trary or inconsistent evidence.
WHIRLPOOL CORP. 731
NLRB 699 (1995). The test of whether a statement or conduct
would reasonably tend to coerce is an objective one, requiring
an assessment of all the surrounding circumstances in which the
statement is made as the conduct occurs. Electrical Workers
Local 6 (San Francisco Electrical Contractors), 318 NLRB
109 (1995).
The Board has consistently held that employers who convey
a sense of the futility of selecting a bargaining agent may vio­
late Section 8(a)(1). Trane Co., 137 NLRB 1506 (1962);
American Telecommunication Corp., 249 NLRB 1135 (1980).
Also, the Board draws a distinction between what may be
termed permissible predictions and prohibited threats for pur­
poses of Section 8(a)(1); that is, an employer generally must
provide an objective factual basis outside the employer’s con­
trol for predictions of adverse consequence of unionization.8
An employer who makes statements regarding plant closure if
the employees select the union may violate the Act. Atlas Mi­
crofilming, 267 NLRB 682 (1983), enfd. 753 F.2d 313 (3d Cir.
1985); and Baby Watson Cheesecake, Inc., 320 NLRB 779
(1996). Additionally, employers who tell employees that the
company will not bargain in good faith if the union is elected
may violate Section 8(a)(1). Fieldcrest Cannon, 318 NLRB
470 (1995).
Employees who maintain and enforce a policy prohibiting
off-duty employees from distributing union literature in non-
working areas of an employer’s property without legitimate
business justification violates Section 8(a)(1). St. Luke’s Hos­
pital, 300 NLRB 836, 837 (1990); and Orange Memorial Hos­
pital Corp., 285 NLRB 1099 (1987).
The Board has held that while employees do not have a
statutory right to use an employer’s bulletin board, such use
receives the protection of the Act when the employer permits
them to use bulletin boards for the posting of personal notices.
In these circumstances, an employer may not remove union
notices. Container Corp. of America, 244 NLRB 318 fn. 2
(1979). Doctors Hospital of Staten Island, Inc., 325 NLRB
730, 735 (1998). However, when the employer maintains a rule
regarding permissible posting on company bulletin boards and
enforces it strictly and not discriminatorily, the rule may stand
and no violation occurs.
In Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d
(8th Cir. 1983), the Board summarized the prevailing legal
principles applicable to bulletin board postings, as follows:
The legal principles applicable to cases involving ac­
cess to company-maintained bulletin boards are simply
stated and well established. In general, “there is no statu­
tory right of employees or a union to use an employer’s
bulletin board.” However, where an employer permits its
employees to utilize its bulletin boards for the posting of
notices relating to personal items such as social or reli­
gious affairs, sales of personal property, cards, thank you
notes, articles, and cartoons, commercial notices and ad-
8 See, for example, Jefferson Smurfit Corp., 325 NLRB 280, 285
(1998), where a plant manager’s statement concerning loss of bene­
fits—that the employees could gain money or lose money through
collect ive bargaining with the union should it be selected—was not
considered a threat of loss of benefits.
vertisements, or, in general, any nonwork related matters,
it may not “validly discriminate against notices of union
meetings which employees also posted.” Moreover, in
cases such as these, an employer’s motivation, no matter
how well meant, is irrelevant. [Footnotes omitted.]
Thus, if an employer allows employees space to post items of
interest, it may not impose content based restrictions that dis­
criminate between postings of Section 7 matters and other post­
ings. Vons Grocery Co., 320 NLRB 53, 55 (1995). Further-
more, the employer may not remove union literature from gen­
eral purpose bulletin boards, while leaving other items of a
personal and/or nonbusiness nature. Kroger Co., 311 NLRB
1187 (1993).
With the foregoing serving as a legal framework, we turn to
the specific 8(a)(1) charges.
IV. THE 8(a)(1) CHARGES
A. The September 1996 Removal of Union Literature Charge
John Trice has been employed by the Respondent for the
past 16 years and is currently employed by the Respondent at
Findlay working the day shift (6:30 a.m. to 2:30 p.m.) for the
past 9 years. Trice was the sole witness called by the General
Counsel to testify about the September 1996 literature removal
allegations.
According to Trice, he became very involved early on in the
union organizing campaign (in late July or early August 1996).
He handed out union notices, wore union buttons, attended
meetings, and made telephone calls on behalf of the Union. He
also posted union literature around his department and in other
areas of the plant on eight to ten cork bulletin boards—so called
public boards—which he said the employees were allowed to
use. Trice described himself as a union supporter who would
like to see the Union prevail in the instant litigation.
According to Trice, while working the Sears dishwasher line,
he saw management personnel remove prounion literature he
had posted on one of the public corkboards on two occasions.
The first time occurred towards the end of August when Trice
observed admitted supervisor Stan Oren approaching the Sears
product area and stopping to remove union literature and then
leaving the area. According to Trice, Oren did not remove
other miscellaneous nonbusiness notices, including one item
Trice described as a calendar. On another occasion around the
end of September, Trice said he saw admitted supervisor Ron
Linke walking over to the same board and also remove union
literature and leave the area; he saw no other items being re-
moved by Linke. According to Trice, these were the only occa­
sions he observed anyone from management removing union
literature or notices;9 and while he complained to the Union, he
never brought the matter to management’s attention.10
9 Trice provided a sworn affidavit to the Board investigator and on
cross-examination acknowledged that he averred in the affidavit that he
posted union literature on 15 occasions; and that the postings would be
removed within 5 minutes to 1 week. He provided no further explana­
tion for these incidents.
10 Trice said that he did not confront or ask Linke or Oren to stop
removing or why they were removing the literature on these two occa­
sions.
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent called Ronald (Ron) Linke and Stanley
(Stan) Oren to rebut these charges.
Linke11 testified that on two to four occasions during the un­
ion campaign, he removed prounion literature from the public
bulletin boards, but only to copy the materials and then return
them to the board; that the material copied in this fashion was
removed for only around 3 minutes. According to Linke, Oren
accompanied him on occasion and they both simply removed
the material, walked 20 paces or so down the hall to a copy
machine, copied the material, and replaced it; he and Oren also
copied procompany literature after this fashion. Linke stated
that his (and Oren’s) sole purpose in copying the material was
to keep his boss, Mark Buehrer, informed and the copies were
given to Buehrer for his information. According to Linke, he
and Oren were not instructed to copy these materials by anyone
in management; they took it upon themselves to copy the mate-
rial merely to keep their bosses informed. However, Linke
acknowledged that any unauthorized materials placed on so-
called nonpublic boards were routinely taken down. Linke
cited the nonpublic board near the Sears line as an example,
which he said was clearly marked “for business use only” and
was intended by management to be used only for notices about
which parts were scheduled for the Sears product line. Linke
noted, however, that the board was often used improperly by
the employees for nonbusiness notices. According to Linke,
any notices not related to the business were removed from the
board and he, in fact, removed during the union campaign com­
pany literature as well as other types of notices that were placed
on this restricted board.
Oren12 also admitted that he, and on occasion accompanied
by Linke, removed union literature from the employee (public)
boards, but only to copy it and within a couple of minutes re-
turn the material to the board. Oren acknowledged that on one
occasion when he was removing union literature, an unidenti­
fied employee commented to him and he told the employee that
he was merely making a copy and would and did return it.13
Oren also said he was not instructed by management to do this
but took it upon himself to keep Buehrer informed during the
campaign. According to Oren, he personally removed and
copied union material and procompany material14 only one
time. Oren denied removing union literature (not particularly
described) posted throughout the facility on public boards.
Oren described an occasion when he and Linke happened by a
bulletin board and saw some interesting union information and
decided on the spot to make a copy for their boss on the nearby
11 Linke had worked for the Respondent 28 years, and in the fall of
1996 was the first shift supervisor in the dish rack department. Linke
was Trice’s supervisor.
12 Oren has worked for the Respondent for around 22 years, and he
was a supervisor in the dish rack department in the fall of 1996. During
this time, Oren was only working weekends and during the week on an
as-needed basis.
13 Oren said that Linke was present on this occasion. The public
board in question was close to the employee restrooms and coffee ma-
chines.
14 Both Linke and Oren testified that one pro-company letter from an
employer (Myrna Lydick) was considered to be very well written and
they took it down, copied it, and provided this to Buehrer.
copy machine. Oren could not remember the date of this inci­
dent but thought it might have occurred around 10 a.m. on a
workday during the campaign.
The General Counsel contends, in essence, that by removing
the Union’s literature on several occasions during the organiza­
tional campaign, Oren and Linke, and therefore the Respon­
dent, violated the Act. She further argues that their stated rea­
sons for removing the union material—either to copy it and
immediately return it to the bulletin board or because the mate-
rial was posted on a restricted board—should not be credited.
The Respondent counters, arguing that the General Counsel did
not establish the charge that the company supervisors discrimi­
nated in removing only union literature from restricted boards
and where admittedly union materials were removed, there was
no evidence that the removal was permanent. Rather, the mate-
rials were taken down for a few minutes and then returned to
the board, which in its view poses no violation of the Act.
First, it is undisputed that Oren and Linke, by their own ad-
mission, removed union literature from the unrestricted or pub­
lic company bulletin boards on several occasions and, in the
case of Oren, he also admitted that an employee (other than
Trice, evidently) saw him removing the union materials; more-
over, both men admitted by implication that that they did not
remove other nonbusiness items from the employee bulletin
boards. As such, these admissions make out a technical viola­
tion of the Act, and I would be prepared to so find. However, I
believe that both Oren and Linke demonstrated remarkable
candor in testifying about their part in this matter. Surely, they
both could simply have denied removing the union materials,
leaving Trice in a sense “outnumbered” for credibility pur­
poses, in spite of the enhanced credibility accorded current
employees by the Board. However, they chose to be honest and
forthright about their activities. Therefore, I would credit their
testimony that the two indeed removed the union materials (and
the one pro company item) but solely to copy the materials and
then to return them to the public boards; and, further, that the
materials were only removed for a few (2 to 3) minutes. I fur­
ther credit Linke’s testimony that he advised the unidentified
employee observing him remove the union literature of his
purpose and therefore in a sense “cured” the taint of ostensibly
illegal conduct.
I note in passing that the linchpin of the Board’s test for
8(a)(1) violations is reasonableness. Here, given the totality of
the circumstances, I would conclude that while the Respondent
may have technically violated the Act in removing the union
materials from the public boards, it was de minimis in nature
and not warranting a cease-and-desist order or other remedial
action by the Board. I would recommend that this charge be
dismissed.15
15 I would note that the actions of the Respondent here, temporarily
removing union materials for a few minutes, stands in stark comparison
to the facts of Kroger Co., cited herein. In Kroger, a supervisor was
observed taking down literature from general purpose bulletin boards
which were customarily used throughout the employer’s facilities to
post a variety of nonbusiness and personal items. The supervisor ad­
mitted that he permanently removed the union items because they were
controversial in his mind, and outdated; he also admitted, however,
allowing other nonbusiness items to remain on the boards for up to 4 to
WHIRLPOOL CORP. 733
B. The November 11, 1996 “Futility” Speech
Trice also testified about an incident that occurred in a meet­
ing conducted by the aforementioned Mark Buehrer, an admit­
ted supervisor, during the union campaign. According to Trice,
Buehrer convened a meeting in his office on about November
11 with five other hourly employees.16 According to Trice, in
an hour-long presentation that included slides of closed union­
ized plans and comparisons of wages and benefits of the Re­
spondent’s employees at unionized plants, Buehrer tried to
convince the employees that unions were not good for Whirl-
pool. In response to Buehrer’s comments, Trice said that he
asked Buehrer how the Company would bargain with a union.
According to Trice, Buehrer said that if the employees were
going to get a union at the Findlay division, Whirlpool would
sit down with its company lawyer; the company would draw up
a contract; they would throw it on the table and say, there it is.
“Take it or walk.” (Tr. 153.) Trice said his response was that
that would not be bargaining in good faith. According to Trice,
Buehrer then said that was the way Whirlpool bargained with
all unions.17
Buehrer testified at the hearing.18
Buehrer stated that during the union campaign, the Respon­
dent conducted two rounds of small group meetings with its
employees regarding the Union and its organizing efforts at the
Findlay plant. According to Buehrer, he personally conducted
the first round with all the workers and then held 37 small
group meetings over a week’s time, Buehrer said he did not
have anyone assist him in the presentation although another
management person was always present taking notes of em­
ployee concerns and questions.19 According to Buehrer, all
managers participated in company-sponsored seminars regard­
ing union organizing campaigns and elections. Buehrer was
taught in these courses not to promise anything or threaten or
intimidate the employees. And, in fact, he operated from a
“script” that did not include discussion of collective bargaining
as such, only that he answered any questions relating to collec­
tive bargaining almost by rote with the statement, “Whirlpool
has always negotiated in good faith.” Buehrer admitted that
during the meetings with employees, including one with Trice,
he compared the Respondent’s nonunion wage and benefits
with those of its unionized facilities. However, Buehrer em-
6 months, thus discrediting his motives in removing the union materi­
als. The 8(a)(1) violation found in Kroger clearly warranted a standard
Board remedial action.
16 Trice was able to recall the names of two of the five hourly em­
ployees at this meeting—Phil Bowling and Cindy Wolky—neither of
whom testified at the hearing.
17 According to Trice, Buehrer’s statements were accompanied by
his throwing down a handful of papers by way of demonstration of his
point regarding the Respondent’s hard-line stance on bargaining.
18 In November 1996, Buehrer was the manager of the Respondent’s
dish rack operation.
19 According to Buehrer, the notes were turned in by the note taker to
management but he could not recall by whom. The purpose of the note
taking, according to Buehrer, was to enable the Company to deal with
employee questions but were not in any way minutes of the small group
meetings. Also, he, himself, took no notes during these meetings. (Tr.
171.)
phatically denied having made the statements attributed to him
by Trice.
The General Counsel argues that Trice, as a current em­
ployee, should be believed and is otherwise credible or more so
than Buehrer. She contends that if Trice is credited, Buehrer’s
statements to the group of employees were unlawfully coercive.
The Respondent contends that Buehrer testified truthfully and
honestly and that his denial of making the offending statements
should be credited. The Respondent suggests that Trice, the
General Counsel’s sole witness, was more motivated by his
zeal for and support of the Union and not for the truth. Fur­
thermore, the Respondent notes that Trice named several other
employees who supposedly attended the small group gathering;
yet, these persons did not testify, suggesting that they would
not corroborate Trice. The Respondent argues that Trice’s
testimony, therefore, is simply not corroborated and should not
be given more weight than Buehrer.20 Moreover, the Respon­
dent submits that Buehrer’s overall testimony, particularly his
emphatic denial and his reasons supporting his denial, make
him the more credible witness.
It is clear from the authorities cited herein that if it were de­
termined that Buehrer indeed made the statements attributed to
him in the small group meeting with the gathered employees, a
violation would be made out. The question remains as to
whether the General Counsel has met her burden of proof re­
garding the utterance of the statement by the Respondent. On
this count, I am not persuaded. I recognize that by Board
precedent, the testimony of current employees, like Trice, en-
joys a presumptive credibility, and that Trice seemed to be a
credible witness.21 However, by my lights, the presumption
favoring current employees does not automatically convert an
employer witness otherwise unimpeached into someone not to
be believed. Thus, while Trice certainly testified credibly in
my mind about his observations regarding the removal of union
literature, his testimony about Buehrer’s purported remarks is
not entitled by accretion to redoubtable belief. I note also that
Trice, by his own admission, was an active and staunch sup-
porter of the Union, and in that sense cannot be considered a
disinterested or neutral witness.
Here, to me, Buehrer in his own right testified forthrightly
about his role in the small group meetings, and he denied mak­
ing the statements. In fact, in an on-the-record exchange be-
tween Buehrer and me, he explained his position regarding how
he was instructed to deal with and how he dealt with bargaining
questions from employees.
By Judge Shamwell:

Q. You said you were taught what to say and not to say, did

you have seminars or something that the company sponsored

or what?

A. Yes.

20 The Respondent argues that because it was not aware of the con-
text of the statement in question, as well as any witness to the matter, it
did not call any witnesses other than Buehrer himself.
21 The General Counsel correctly cites ample Board authority for this
proposition of presumptive credibility of current employees in unfair
labor practice hearings. (See GC Br., p. 4.)
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Then what was—what was basically the content of these, I

guess, courses?

A. Well, during the Union campaign, you’re never allowed to

promise anything. You’re never allowed to threaten, you’ve

[sic] never allowed to intimidate. And—uh, we’re just taught

the things that you are allowed to say legally and things that

you can’t.

Q. So your stock reply to collective bargaining questions was

that the company always would bargain in good faith?

A. Yes.

Q. That was what you were kind of taught to say?

A. Yes.

Q. And that’s how you did it almost by rote?

A. Yes. [Tr. 172-173.]

On balance, in my view, Buehrer’s denial was the equal of
Trice’s accusation and, as such, presents the typical one-on-one
confrontation between equally credible witnesses. Thus, I
would conclude that the evidence regarding the futility allega­
tion is in equipoise; and that the General Counsel, thus, has
failed to meet her burden of preponderance on this issue. Ac­
cordingly, I would recommend dismissal of this charge because
I am not persuaded that Buehrer made the remarks attributed to
him.
C. The November 13, 1996 Literature Distribution Incident
Trice testified that around 5:10 a.m. on November 13, 1996,
he and six to eight other Whirlpool employees were passing out
union literature on company property, but outside the plant
around 15 feet from the pressroom door. On that occasion,
after 10 to 15 minutes, the group was approached by a company
security guard who asked when the group’s shift started. Trice
said he told the guard that his shift (as well as the others)
started at 6:30 a.m. The guard advised the group that employ­
ees were not allowed on company property until 15 minutes
prior to the commencement of their shift. According to Trice,
he told the guard that that rule had never been enforced and
advised him he and the others would not leave the area. The
guard left the area. Then, around 10 minutes later, Dick Kretz,
a third shift supervisor, came to the site and, according to Trice,
told the group that they were not allowed to hand out literature
on company property. Trice said he then told Kretz that they
could legally distribute materials on company property and that
Kretz should study the law (on the subject). Kretz responded
that he would and left without further comment and incident.
According to Trice, Kretz did not interfere with the group’s
continued distribution of literature; and, moreover, he was not
disciplined by the Company for this incident.
The Respondent called Sandy Franks to rebut these
charges.22 According to Franks, Kretz approached her on an
occasion (she provided no date) and raised his concerns about
22 Kretz, an admitted supervisor, did not testify at the hearing.
Franks, employed by the Respondent since 1978 and involved in hu­
man resources functions since 1983, serves as director of human rela­
tions with responsibilities covering employee relations for both hourly
and salaried employees; in 1996, she served as manager of employee
services.
the employees reporting for work early and their distributing
literature while standing outside the entrance doors of the facil­
ity. Kretz sought her guidance and she told him that the em­
ployees had “every right to stand there,” that the employees
were entitled to distribute union literature on nonwork time in
nonwork areas. According to Franks, she believed Kretz did
nothing to keep any employee from soliciting or distributing
materials in nonworking areas on their own time; in any event,
she received no complaints about the matter.
In my view, it is uncontroverted on this record that Kretz, an
admitted supervisor, told Trice and other participating employ­
ees that they could not distribute union literature on company
property. And it is equally clear that Trice told Kretz he was
wrong in his (Kretz’) interpretation of the law, and that Trice,
and presumably the other employees, continued to hand out
materials with no interference by company officials or security
personnel.
The General Counsel contends that irrespective of Kretz’s
mistaken understanding of the law, and the failure of his com­
ments actually to intimidate or coerce the employees, the Re­
spondent, nonetheless, violated Section 8(a)(1). She essentially
argues that less informed and less courageous employees might
have bowed to Kretz’s demand to stop passing out literature
and therein lies the gravamen of the violation. The Respondent
argues mainly that Kretz’s statement was not coercive within
the meaning of Section 8(a)(1) and that, at most, Kretz engaged
in a singular mistaken effort to stop the distribution. The Re­
spondent further argues that Kretz, once advised by Trice, went
to Franks in good faith to get clarification and was instructed
that he was wrong. The Respondent submits that since Kretz
did nothing further to interfere with the distribution of literature
by the employees who continued to hand out materials; that on
balance, reasonably speaking, there was nothing unlawfully
coercive about Kretz’s comments.
The Respondent principally relies upon Nice Pak Products,
248 NLRB 1278, 1282–1283 (1980), for the proposition that “a
single effort to stop [the employee] from distributing leaflets on
company property [does] not violate the Act.” The facts of
Nice Pak are remarkably similar to those of the instant case and
would be highly persuasive were it not for one salient fact pre-
sent there but not in the instant case—an apology by the offend­
ing supervisor to the affected leafleteer who, in turn, told her
fellow employees of the supervisor’s apology as well as his
retraction of his prohibition against distribution. Clearly, the
Board, which affirmed the administrative law judge’s finding of
no violation, felt that any residue of coercion was removed by
the remedial efforts of the respondent. Here, while Kretz
sought advice regarding the employees’ distribution of litera­
ture on company property and was properly disabused of his
erroneous view of the law, neither he personally, nor anyone
else from management, did anything to rectify the issue with
the employees involved. Therefore, it is reasonable to conclude
that in spite of Trice’s boldness (and the others in his group) in
continuing to distribute materials, other employees, neither as
bold nor informed, may have been chilled by Kretz’s remarks
in terms of pursuing their right to distribute union materials on
company property during their off time. Accordingly, given the
totality of the circumstances, I would conclude that the Re-
WHIRLPOOL CORP. 735
spondent’s statement to the employees was unlawfully coercive
and, hence, violative of Section 8(a)(1).
D. The September 1996 Facilities Closure Statement
The General Counsel called one witness to establish this
charge, alleged discriminatee Jerry Pore. Pore testified that he
is currently employed by the Respondent as a warehouseman, a
position he has held for around 13–14 years; he has been em­
ployed by the Respondent for a total of 23 years. According to
Pore, during his tenure, the Respondent’s employees have
never been represented by a union. However, around June
1996, the employees began an organizing effort and he and a
small group of workers contacted the Union for that purpose.
Pore considered himself one of the original organizers of the
organizing effort. Pore said that after becoming involved in the
campaign, he had a conversation about the Union with his im­
mediate supervisor, Donald “Dutch” Holtgreven,23 sometime in
September 1996 in the plant’s distribution center cafeteria be-
tween 6 and 6:30 a.m. According to Pore, Holtgreven and he
were alone in the cafeteria and, during the course of a 5–10
minute conversation, Holtgreven commented about what would
happen if the Union came in. According to Pore, Holtgreven
said that they (the Company) could shut the plant down, that
the Company could do “a lot of things.” (Tr. 90-91.) Accord­
ing to Pore, he agreed with Holtgreven.
Holtgreven24 testified that he and Pore were personal friends.
He admitted that in 1996 the two had some conversations about
the Union’s coming in, that the Union was quite the topic of
conversation at the time. However, Holtgreven specifically
denied telling Pore at any time that Whirlpool would or could
close the plant if the employees were to vote the Union. Ac­
cording to Holtgreven, he did not banter with Pore about the
Union either “pro or con” to avoid “conflicts.” (Tr. 167.)
The General Counsel contends that Holtgreven’s statement
to current employee and known union supporter and organizer
Pore—that if the Union were elected the Company could shut
down the plant—was unlawfully coercive. However, the Re­
spondent points out that the complaint alleges that Holtgreven,
an admitted supervisor, coercively informed an employee that
the Respondent would close the facility if the employees se­
lected the Union. The Respondent submits that the testimony
from the only witness produced to establish the charge, Pore,
was that Holtgreven said if the Union came in, it could shut the
plant down. The Respondent argues, thus, that the statement
itself is vague in its meaning and one could only speculate as to
what the statement expressing merely a possibility of closure, if
believed, meant. Accordingly, such a statement, according to
the Respondent, cannot be coercive. The Respondent also con-
tends that Pore, as an active union supporter, was not credible.
It argues that Holtgreven, by contrast, was believable and that
his denial of making the statement should be credited.
23 Pore said that currently he was a third shift worker—10:30 p.m. to
6:30 a.m.—and that Holtgreven was his supervisor for around 12 years.
24 Holtgreven, an admitted supervisor, said that he works in the dis­
tribution center of the Respondent’s facility. According to Holtgreven,
he was a first shift supervisor in 1996, but occasionally ran into Pore in
the company cafet eria between changes in shifts.
Here, again, we face a credibility issue based on a one-on-
one confrontation. The General Counsel once again asserts that
Pore, as a current employee, should be given a presumption of
credibility as to the making of the offending statement. Holt­
greven, who denies making the specific offending statement,
nonetheless, candidly admitted having discussions about the
Union with Pore, whom he described as a friend. Therefore,
before reaching the issue of whether the statement violates the
Act, the threshold question is whether the statement was made
and in what form. I would agree with the Respondent that in
some respects, mainly concerning his testimony about an affi­
davit given to the Board’s investigator and a document25 he
acknowledged signing but not authorizing or ratifying, Pore
seemed confused, hesitant, and perhaps even evasive, and his
credibility suffered in my view. However, Holtgreven, in terms
of his overall testimony and demeanor, presented well. More-
over, I was impressed with his candor about discussing the
Union at all with Pore, who he knew was an avid union sup-
porter. As Holtgreven acknowledged, the Union’s organizing
efforts were quite the topic, and it seems perfectly logical and
consistent with the noteworthiness of the event that two people
who have worked together for over a decade and were friends
would discuss the matter. While acknowledging conversation
about the Union, Holtgreven denied making the statement at­
tributed to him because, in a phrase, he knew better. I would
credit his denial. Therefore, I would conclude that the Respon­
dent did not violate the Act and would recommend dismissal of
this aspect of the complaint.26
25 See R. Exh. 3(a), a memo bearing Pore’s signature dated October
11, 1996, dealing with a purported counseling session which is the
subject of an 8(a)(3) charge herein and which will be discussed infra.
26 I would note that even if I had not credited Holtgreven’s denial
and credited Pore’s version of the statement, I still would be persuaded
to find no violation. First, if Holtgreven said that the Respondent could
close the plant if the Union came in is simply not the same as saying
that it would close the plant. A statement of possibility is not a threat in
my view. Moreover, the charge in the complaint alleged that the Re­
spondent said it would close the plant if the Union were selected. Thus,
in my view, there would be a material and fatal failure of proof in the
General Counsel’s case, were I to credit Pore’s version of the event.
Also, even if I were to overlook what I view as a material variance
in proof and accept that the word “could” in context connoted “would”
regarding closure of the plant, the conversation between the two friends
bantering about the Union and its impact on their long-time employ­
ment with the Company seems more polemical than threatening, espe­
cially since the alleged statement was not communicated to other em­
ployees. I note that in the discussion, Pore agreed with Holtgreven,
suggesting that the discussion was friendly more in the way of debate.
I do not believe statements and conversations of this type are offensive
to the Act, nor to the Board’s decisions attempting to effectuate broad
policies clearly designed to ensure a proper balance between the rights
of employers and employees.
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
V. THE 8(a)(3) ALLEGATIONS
A. The October 3, 1996 Discipline of David Hamilton27
David Hamilton testified that he became aware of the Un­
ion’s organizing efforts in September 1996, and he became
personally and actually involved in the campaign by attending
meetings and rallies and passing out union (authorization)
cards. Hamilton testified that on October 3 he was working the
third shift (10 p.m. to 6:30 a.m.) and had been on the job about
an hour or so when he was called to the office of his immediate
supervisor, Lee Beck. Once there, according to Hamilton, he
met with Beck and another supervisor, Kretz. According to
Hamilton, Kretz did most of the talking and told Hamilton that
he (Hamilton) had been accused of harassing someone; how-
ever, Kretz would not tell him the name of the person(s), saying
that he was not at liberty to disclose the name(s) of the com­
plainants. According to Hamilton, Kretz read off of a paper
some charges and asked him to sign papers, but he refused
because Kretz would not identify the complainants. After the
meeting, which lasted around 20 minutes, Hamilton said he was
told by Kretz to contact an individual in the Respondent’s hu­
man relations department, Steven Traucht, presumably to deal
with any questions he might have about the counseling. Hamil­
ton said despite repeated efforts to contact Traucht, he was
never able to speak with him.28
As noted earlier, Kretz did not testify at the hearing; how-
ever, the Respondent did call Beck to answer the charges re­
garding Hamilton.
Beck, an admitted supervisor, testified that he, as Hamilton’s
immediate supervisor, and Steve Dearth, the third shift supervi­
sor (an admitted supervisor in the Respondent’s main and door
lines), decided to counsel Hamilton regarding a complaint man­
agement had received from two female coworkers of Hamil-
ton.29 Consequently, Hamilton was summoned from the as­
sembly line to the office he shared with Dearth for counseling.
Beck stated that in addition to himself, both Kretz and Dearth
were present; however, Beck could not recall whether he did
most of the talking or whether Kretz stayed for the entire meet­
ing as did Dearth.
According to Beck, Hamilton was advised by himself or one
of the supervisors that two named female employees had com­
plained about his harassing conduct which they described as
verbal harassment, “intimidation,” and talking about the Union
27 Hamilton is currently employed by the Respondent and has been
employed for around 15 years as a laborer in the main and door line of
the Respondent’s facility at Findlay.
28 Hamilton said that after the meeting and after work that day, he
tried to reach Traucht but was unable to make contact on that day; he
tried several times and left his telephone number. Traucht did not
return his calls. However, according to Hamilton, Traucht approached
him on the job around a week before the instant hearing, gave him a
piece of paper with the company’s lawyer’s name and the General
Counsel’s name on it, and told him if he felt he was wrongly accused in
the supposed disciplinary action in October 1996, he (Hamilton) could
talk to the General Counsel or the Respondent’s attorney. Hamilton
said he called no one.
29 The coworkers were identified by Beck as Bonnie Ellerbrock and
Sandy Mansfied, neither of whom testified at the hearing.
during worktime. Beck stated that he told Hamilton he should
not be harassing the ladies and talking about the Union during
worktime. According to Beck, he solicited Hamilton’s re­
sponse about the charge and Hamilton denied harassing the
workers. According to Beck, he told Hamilton that the meeting
would be documented on his (Hamilton’s) “yellow card.”30
According to Beck, by company procedure, such a matter is
ordinarily investigated31 by the supervisors and once docu­
mented, an entry is placed on the yellow card and the employee
is asked to sign the card. In Hamilton’s case, Beck said that
Hamilton was again brought back to the office either later the
same day of the meeting or the next day and asked to sign the
yellow card in the presence of Dearth, Kretz, and himself.
Beck said that Hamilton was shown the entry on his yellow
card32 but he assumes that since Hamilton’s signature does not
appear on the entry, Hamilton did not sign it.33
Regarding Hamilton’s union activity, Beck was aware that
Hamilton was expressing his views about the Union in working
areas and on working time prior to the counseling meeting, but
he had received no complaints from any sources about these
activities. According to Beck, he counseled Hamilton solely
because of the employees’ complaints and that the counseling
had nothing to do with Hamilton’s support for the Union.
B. The October 10, 1996 Discipline of Jerry Pore34
According to Pore, the employees at Whirlpool Findlay have
never been represented by a union and around June 1996, a
small group of employees, including him, contacted the Union
and the organizing effort commenced. Pore stated that he was
one of the original organizers and, toward the end, he can­
vassed employees soliciting their positions on the Union, dis­
tributed literature, and invited both employees and management
to attend union meetings.35
30 The “yellow card” as stipulated and agreed by the parties is an at­
tendance/tardiness and conduct record, maintained by an em­
ployer/supervisor throughout the course of the employees’ employment
with the Respondent; it travels with the employee in his/her assign­
ments and is given to his/her supervisor; but not necessarily is it kept or
maintained in the employee’s personnel file. (Tr. 19-20.)
31 Notably, Beck could not recall whether he personally talked to the
employees who complained about Hamilton’s conduct for purposes of
any investigation of the matter.
32 GC Exh. 5 is a page taken from Hamilton’s yellow card and re­
flects the October 3 meeting. Beck acknowledged his signature and
that of Kretz who prepared the handwritten remarks.
33 According to Beck, the yellow card does not note any refusals to
sign by the affected employee because the Respondent does not con­
sider the yellow card a formal document, that is, the entry is not a dis­
ciplinary action in any way and it cannot be used to deny a promotion
nor be appealed from; it is intended only to track behavior but nothing
else can be done with it.
34 Pore is currently employed at the Respondent’s Findlay facility
and has been in its continuous employ for around 23 years; for the last
13–14 years, he has worked as a warehouseman.
35 Pore stated that he invited management to union meetings includ­
ing Dennis Krueger, a former vice president; Monte Sampson, superin­
tendent of the second shift; Holtgreven, his current supervisor; Don
Debouver, second shift warehouse supervisor; Jim Beachler, manager
of the distribution center.
WHIRLPOOL CORP. 737
On October 10, Pore stated that he was called to the front of­
fice by Monte Sampson. Sampson told him the meeting was a
counseling session concerning inappropriate activity which
Sampson described as his handing out (union) literature on
company time. According to Pore, Sampson read “something”
out of the employee handbook dealing with passing out litera­
ture on company time. Sampson emphasized that he was
merely counseling him, but advised that the rule against passing
out literature on company time was generally known. Accord­
ing to Pore, he was unaware of the rule at that time. However,
Pore said that he was not told when he was supposed to have
violated the rule. Moreover, according to Pore, he was not
asked to sign anything nor was he shown a copy of his yellow
card at the meeting. Pore said he did respond to Sampson’s
accusation by telling him that he passed out materials only on
his own time before he started his regular Shift. Pore viewed
the counseling session as a disciplinary action.36
The Respondent called two admitted supervisors to rebut the
allegations of its treatment of Pore—Michelle Obenour and
Monte Sampson.
Obenour admitted that on October 10, she was involved in
counseling Pore for passing out union literature on worktime
based on complaints she had received from several of Pore’s
coworkers who, individually, had approached her on the same
day with their complaints.37 According to Obenour, after re­
ceiving the complaints, she called the Respondent’s human
resources office, spoke to Connie Walls, the director, and ex­
plained the situation and sought advice as to how to proceed.
She specifically requested that someone be sent to assist in the
counseling. Walls sent second shift supervisor Monte Sampson
with whom she met prior to speaking with Pore. Once apprised
of the complaints, Sampson approved the counseling. Accord­
ing to Obenour, she did no prior investigation prior to counsel­
ing and specifically did not talk to Pore before meeting with
him in her office. Also, before calling him in, Obenour said
that she made an entry on Pore’s yellow card about the subject
matter of the anticipated counseling. Eventually, Pore was
called in off the line and, as she recalls, only Sampson ad-
dressed Pore regarding the complaints and advised him about
the company rules regarding solicitation on company time.
Obenour stated that Sampson actually read the company rule
from the employee handbook to Pore and then asked him if he
36 Pore conceded that he may have been in a working area on the
floor but he denied generally handing out literature during working
hours. He, however, admitted that he might have passed out literature
on company time when an employee requested information. (Tr. 91.)
37 Obenour identified the complaining employees as William Bowl­
ing and Murl Phelps, second shift workers, and David Pierce, a first
shift worker. According to Obenour, Bowling complained that Pore
continuously, on a daily basis, approached him about signing a union
authorization card and otherwise trying to talk about the Union. Phelps
and Pierce made similar complaints, with Pierce expressing that he was
tired of and frustrated by Pore’s overtures; Phelps asked her to keep his
name out of the complaint, as he and Pore were friends.
Obenour herself, prior to receipt of these complaints, had observed
Pore passing out literature but she did not make an issue of it. How-
ever, she said that the employee complaints triggered her subsequent
actions because the employees claimed they were bothered by him and
requested that he be stopped.
understood the rule, specifically its prohibition against solicita­
tion on company time during work hours. In short, according
to Obenour, Sampson told Pore that he violated the rule by
handing out literature and soliciting workers during their work-
time and while he was working; and she herself believed that
Pore had engaged in that conduct.
Monte Sampson, the second shift supervisor, testified that he
was involved in counseling Pore on October 10 in Obenour’s
office around 10–11 a.m. because Obenour requested assistance
in dealing with a problem that had arisen. According to
Sampson, Obenour informed him that there were employee
complaints about Pore’s promoting his beliefs on company time
and in the work areas, and there was some disagreement be-
tween Obenour and Pore over whether he was being disciplined
with regard to the rules. Sampson said that he was asked to
assist in the matter and went to Obenour’s office to meet with
Pore and Obenour and to further counsel him on the solicitation
rules, as he understood that Obenour had begun some counsel­
ing before he arrived.
Sampson said that he told Pore that he was there to assist in
counseling because of employee complaints, and he wanted to
be sure Pore was aware of the Company’s policy on solicitation
and distribution. Sampson said that he also informed Pore that
the counseling session was not disciplinary in nature—merely
counseling. Sampson believed that he did not ask Pore for his
version of events at this meeting and did not independently
investigate the matter; nor did he inquire of Obenour whether
she had investigated. Sampson could not recall whether he
informed Pore of the nature or specifics of the employees’
complaints, but he knew at the time that Pore had been accused
by the employees of putting up literature and approaching
workers on company time in work areas; and trying to change
the employees’ opinion about the Union.
Sampson admitted that the counseling session was written up
on Pore’s yellow card by Obenour and signed by him as a wit­
ness on the evening of the meeting. According to Sampson,
Pore was shown the violation but he could not be sure whether
Pore was asked to sign it. Sampson said that the counseling
session was not a formal discipline. However, all such conver­
sations with an employee had to be documented on the yellow
card in case anything escalated from the incident. According to
Sampson, the yellow card entry has no effect on Pore’s terms or
conditions of his employment, such as promotion.38 According
to Sampson, Pore did not deny that he engaged in the conduct
complained of by the employees.
C. The Contentions of the Parties regarding the
8(a)(3) Allegations
The General Counsel essentially contends that both Hamilton
and Pore were unlawfully disciplined for their union support
and activities. In the case of Hamilton, she argues that he was
called in for counseling to harass him for his known support of
the union campaign and to discourage him from engaging in
further activities supportive of the Union. As to Pore, she con-
38 Pore’s yellow card entry for October 10 is contained in GC Exh. 4.
According to Sampson, there is no time limit for appeals of yellow card
counseling as are required for formal disciplines and this was explained
to Pore.
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tends that he was singled out for violating the Respondent’s
solicitation work rules because of his known support for the
Union. She notes that the discriminatory nature of Pore’s dis­
cipline is demonstrated by the Respondent’s allowing other
employees, supervisors, and line employees alike, during the
period in question, to buy and sell nonbusiness items in viola­
tion of the rule but without penalty.
The Respondent contends, first, that contrary to the com­
plaint allegations, neither Hamilton nor Pore was disciplined in
that the counseling they received had no bearing or impact on
their respective wages, terms, and conditions of employment.
Moreover, in fact, neither man considered the counseling disci­
pline in spite of entries placed on their yellow cards. Second,
the Respondent asserts, assuming arguendo that the counseled
workers were disciplined, that the General Counsel did not
establish that the counseling was motivated by a discriminatory
motive, there being no showing of antiunion animus by the
General Counsel. The Respondent also submits that even if for
the sake of argument the General Counsel met her burden of
showing an unlawful discipline, the Company clearly estab­
lished that Pore and Hamilton would have been counseled pur­
suant to its genuine and good-faith belief that its harassment
and no-solicitation policies had been violated. Accordingly, for
these reasons, the Respondent contends the charges should be
dismissed.
D. Discussion and Analysis
1. The disciplinary issue
A threshold issue is whether the counseling of the two em­
ployees and the documentation of the counseling sessions on
the yellow cards constitute such disciplinary action in regard to
any term or condition of employment within the meaning of
Section 8(a)(3) of the Act.
The Respondent asserts that the counseling received by Pore
and Hamilton does not constitute discipline on several grounds.
First, the supervisors who counseled each man did not even
have the authority to discipline as that authority is vested in the
company’s human resources department; and that all true disci­
plines are always noted on a specific form (a disciplinary no­
tice).39 Second, the conduct noted on the yellow card is not
used for disciplinary action, only to advise the employee of
policy, and may not be appealed through the ordinary discipli­
nary process. Third, the counseling and yellow card entry does
not affect the employee’s promotions or other terms and condi­
tions of employment. Thus, the Respondent contends that the
counseling associated with the yellow card is merely the Re­
spondent’s “non formal” noting of a discussion with the af­
fected employee and his or her being made aware of specific
company policy.40
The General Counsel disagrees and submits that the counsel­
ing sessions endured by Pore and Hamilton are in every aspect
a form of discipline in the context of this case and, in fact, con-
forms to the Respondent’s first level of the Respondent’s estab-
39 See R. Exh. 1, a copy of the disciplinary notice.
40 Support for the Respondent’s position regarding the nondiscipli­
nary effect of the counseling and yellow card entry procedure was
provided by the testimony of Franks.
lished and stipulated and agreed disciplinary process.41 On the
latter point, the General Counsel submits that the Respondent’s
attempt to distinguish Pore and Hamilton’s yellow card coun­
seling from the stated counseling in the companies’ published
policy manual should be rejected because there is no provision
for different types or levels of counseling. She notes that the
handbook only refers to counseling by supervisors, clearly what
both men received on the dates in question.
The General Counsel argues that any employee who was
aware of the handbook provision could reasonably believe that
he/she was being disciplined irrespective of whether the disci­
pline was memorialized on the yellow card or on the formal
disciplinary notice.42
I would agree with the General Counsel and find and con­
clude that by summoning both Pore and Hamilton from their
work assignments and directing them to appear in a supervi­
sor’s office where each was informed of his violation of a
stated and expressed company rule or policy in the presence of
two or more representatives of management, and the session
was memorialized by an entry on a permanent record which
traveled with the employee throughout his employment and
was subject to review by other representatives of management,
the Respondent disciplined the affected workers.
The Respondent’s argument of the nondisciplinary nature of
the counseling here is principally buttressed by Lancaster Fair-
field Community Hospital, 311 NLRB 401 (1993), where the
Board determined that the employees’ issuance of a conference
report constituted nothing more than counseling and no disci­
pline was imposed on the employee. The Board in reversing
the administrative law judge noted that the receipt of the con-
41 The parties stipulated and agreed that following policy guidelines
contained in the employee handbook were in effect at the Respondent’s
plant during all material times.
Discipline
The Findlay Division realizes that corrective action or the discharge
of an employee is a very serious matter. In the event of a violation of
plant rules, or of other conduct requiring disciplinary action, any of the
following penalties may be imposed according to the frequency and
seriousness of the offense:
Counseling by the employee’s supervisor
A written verbal reprimand
A written reprimand
A final written warning
Suspension
Discharge
In the event of a serious plant rule violation of if discharge is indi­
cated, the employee may first be placed on suspension to allow for a
complete and thorough investigation of the facts of the case.
42 It should be noted that the Respondent argues that Pore “admitted”
that the counseling session and the yellow card entry were not disci­
pline and Hamilton did not know whether his counseling session was
discipline, in effect an admission. (R. Br., p. 14.) Whether the em­
ployees were disciplined is a matter of legal interpretation and, there-
fore, the alleged discriminatees’ view of the nature of the employer’s
conduct, in my view, is irrelevant. However, by contrast, I would agree
that it is the more likely case that employees probably would make little
or no distinction between the handbook’s counseling by supervisors
and the counseling of the type received by Pore and Hamilton, irrespec­
tive of whether the counseling was memorialized by a yellow card
entry on the formal disciplinary notice.
WHIRLPOOL CORP. 739
ference report does not result in any adverse action against the
employee and did not therefore affect any term or condition of
employment within the meaning of Section 8(a)(3). Id. at 403–
404.
In my view, the facts here are clearly distinguishable from
those of Lancaster Fairfield Community Hospital. Here, the
counseling session memorialized by the yellow card clearly
corresponds to the first step of the Respondent’s formal disci­
plinary process and procedures. Notably, this process does not
allow for distinctions between or gradations of formal and in-
formal counseling, as argued by the Respondent. Second, and
probably most important for my determination, the yellow card
entry, unlike the conference report in Lancaster Fairfield
Community, can serve as a predicate for future adverse action
against the employee. While Franks, the Respondent’s human
resources director, testified that there was no negative impact
on the employee from an ostensibly negative remark on the
yellow card, she also acknowledged (using Hamilton’s alleged
harassment as an example) that the yellow card would be re-
viewed by human resources where subsequent allegations of
violations were made to see if there were any prior discussions
with the employee relative to the policy. Clearly, then if there
is a repeated violation of the policy, the yellow card is consid­
ered by the Respondent’s human resources department in de­
termining what disciplinary action may be appropriate. It is
interesting on this point that Beck, who signed off on Hamil­
ton’s counseling session, admitted that another supervisor could
review the yellow card entries about the employee for problems
the employee may have had; that the yellow card is used to
track on-the-job behavior of the employee. Beck also admitted
that with respect to the October 3, 1996 yellow card entry for
Hamilton that if his behavior was repeated, this entry would be
considered by the Company and the prior incident would affect
what action the supervisor might take for the subsequent inci­
dent. Notably, Sampson, who signed off on Pore’s counseling
session, acknowledged that the notation (of counseling) is kept
on the yellow card in case there was an escalation of that con-
duct43 by the employee.
There is no dispute that the yellow card records both positive
and negative employee conduct. However, a yellow card entry
reflecting an employee’s violation of important company poli­
cies, and his counseling therefor, in my view, can have an ad-
verse consequence or effect on the employee’s terms and condi­
tions of employment and “may be a foundation for future disci­
plinary action.” Trover Clinic, 280 NLRB 6, 16 (1986).44 Ac-
43 See Tr. 61. Later in his testimony, Sampson stated that escalation
was a poor choice of words and said “re-occurrence” is a more appro­
priate term. However, in my view, Sampson’s use of the term escala­
tion was more descriptive of and consonant with the Respondent’s
established progressive disciplinary process as set out in the employee
handbook. In short, counseling by a supervisor by any other name is
counseling by a supervisor, the first step in the Respondent’s discipli­
nary scheme.
44 The instant case presents an even stronger case than Trover.
There, the Board determined that an oral reprimand served as the foun­
dation for future disciplinary action. See, also, Dico Tire, Inc., 330
NLRB 1252 (2000), wherein a verbal warning was determined to con­
stitute discipline when the company failed to prove they would rescind
cordingly, I would find and conclude that the Respondent dis­
ciplined both Hamilton and Pore on the dates as alleged in the
complaint.
2. The Wright Line analysis
Having determined that both Pore and Hamilton were disci­
plined within the meaning of Section 8(a)(3), the issue remains
whether the Respondent violated this provision of the Act as
charged in the complaint, that is because of or, as argued by the
General Counsel, in retaliation for their union activities.
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer to discriminate in regard to hire or tenure of
employment, or any term of condition of employment, to en-
courage or discourage membership in any labor organization.
29 U.S.C. §158(a)(3).
Preliminary to determining whether an employer has dis­
criminated against an employee in violation of Section 8(a)(3)
or (1) of the Act, the Board has held that the General Counsel
must first make a showing sufficient to support the inference
that the protected activity(ies) of the employee was a motivat­
ing factor in the employer’s decision to discipline or discharge
him/her. If this is established, the burden then shifts to the
employer to demonstrate that discipline or discharge would
have occurred irrespective of whether the employee was en-
gaged in protected activity. Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). It is also well
settled, however, that when an employer’s stated motives for its
actions are found to be false, the circumstances may warrant an
inference that the true motive is one that the employer desires
to conceal. The motive may be inferred from the total circum­
stances proved. Moreover, under certain circumstances, the
Board will infer animus in the absence of direct evidence. That
finding may be inferred from the record as a whole. Fluor
Daniel, Inc., 304 NLRB 970 (1991).
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge of that activity,
animus, and adverse action against those involved, which has
the effect of encouraging or discouraging union activity.
Farmer Bros. Co., 303 NLRB 638, 349 (1991).
Evidence of suspicious timing, false reasons given in de­
fense, failure to investigate adequately alleged misconduct,
departures from past practices, tolerance of behavior for which
the employee was disciplined, disparate treatment of the af­
fected employee, and discriminatory enforcement of facially
valid work rules or policies may support inferences of animus
and discriminatory motivation. Adco Electric, 307 NLRB
1113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir. 1993); Elec­
tronic Data Systems Corp., 305 NLRB 219 (1991); Bryant &
Cooper Steakhouse, 304 NLRB 750 (1991); Visador Co., 303
the warnings at a later date. In Dico, the employee had received a
verbal warning from a supervisor for distributing union literature in the
company break room. Likewise, in Funk Mfg. Co ., 301 NLRB 111
(1991), a manager had given an employee observed distributing union
literature while off duty in a nonwork area entranceway a “casual re­
minder” and told the employee a second offense would result in an
“oral reprimand and something for the file.” The Board determined
that the verbal warning fell within the Company’s formal disciplinary
program.
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 1039, 1044 (1991); In-Terminal Service Co., 309 NLRB
23 (1992).
Once the General Counsel has made a prima facie case, the
burden shifts back to the employer. That burden requires a
respondent “to establish its Wright Line defense only by a pre­
ponderance of evidence.” The respondent’s defense does not
fail simply because not all of the evidence supports it, or even
because some evidence tends to negate it. Merrilat Industries ,
307 NLRB 1301, 1303 (1992).
With these principles in mind, we turn to the disciplines of
the two alleged discriminatees.
3. The discipline of David Hamilton
The Respondent readily concedes that it summoned Hamil­
ton, who was known to management as a union supporter and
activist, for counseling about his union activities, but only be-
cause two of Hamilton’s coworkers complained to management
that he verbally harassed and intimidated them in talking about
the union during worktime; the employees wanted Hamilton to
cease his harassing behavior and demanded responsive action
from the Respondent.
The Respondent asserts that it would have counseled Hamil­
ton regardless of his engaging in protected activity because of
its genuine concern for and because of the coworkers’ com­
plaints which it interpreted to be violative of company policy
regarding harassment,45 as well as plant rules which prohibited
threatening, intimidating, coercing, or interfering with any em­
ployee on company premises.46
The question here is whether the Respondent has met its
burden under Wright Line’s preponderance standard regarding
this defense.47 The Respondent correctly points out that em­
ployers have the right to ensure that the work place is free of
untoward, annoying, intimidating, and illegal behavior on the
part of employees. Employers clearly have the right to main­
tain order, discipline, and productivity at the workplace and,
furthermore, as the Board recognizes, the employers need only
show that its belief in improper conduct on the part of an em­
ployee was reasonable and genuine. Lancaster Fairfield Com­
munity Hospital, supra, at 405. Thus, the issue here is whether
the Respondent has sufficiently established that it held a rea­
sonable, genuine belief that Hamilton was harassing and in­
timidating his coworkers in the course of his union organizing
activities (ordinarily protected activity under the Act) to justify
45 The Respondent’s antiharassment policy is contained in GC Exh.
6, an excerpt from the employee handbook which the parties stipulated
and agreed was in force and effect during the material period. It should
be noted that this provision of the handbook deals with equal opportu­
nity matters, that is harassment based on age, color, race, religion,
national origin, and sex of the employees.
46 The Respondent’s plant rules regarding threatening and intimidat­
ing behavior is contained in R. Exh. 9, another excerpt from the em­
ployee handbook. I will presume that this part of the same handbook
was in force and effect during the material period.
47 The Respondent also submits by way of defense that the General
Counsel failed to establish any employer animus against the Union.
However, as noted, animus may be derived from the entire record and
where it is established that the union activity was the motivating factor
in the discipline in question. The Respondent concedes that Hamilton
and Pore’s union activities were the basis for the counseling.
counseling him and making an entry on his yellow card, in
short to discipline him for his conduct. First, it should be noted
that Hamilton did not accept the accusations of alleged harass­
ment and demanded that his accusers be identified. However,
Hamilton was never told who his accusers were, but that he had
“harassed” them and “intimidated” them.48 According to one
of the Respondent’s supervisors, Hamilton denied the charges
and the supervisor could not recall whether he (or anyone else
in management) personally talked to the complaining employ­
ees after the first counseling session; but still as part of the
Company’s “investigation” of the matter, Hamilton was written
up under the anti-harassment policy for “forcing your opinions
on people.” Hamilton was warned that further disciplinary
action would be taken for repeat violations. I do not find under
the circumstances and facts presented by the Respondent that it
has established sufficiently the reasonableness of its belief that
Hamilton “harassed and intimidated” his coworkers. I am most
compelled to this conclusion by the insufficiency of the evi­
dence from the complaining coworkers mainly as to the specif­
ics of Hamilton’s conduct. On this record, it is not clear as to
what in Hamilton’s behavior was offensive to them, how his
behavior in addressing union matters may have interfered with
their ability to perform their jobs or disturbed the work place or
was threatening or intimidating. The Respondent contends that
it acted on complaints of Hamilton’s alleged “harassment and
intimidation” of the coworkers but without a context, these
words are rendered meaningless. For instance, the Respondent
invoked harassment language from the equal opportunity provi­
sions of the employee handbook to counsel Hamilton and to
write him up. Yet, the coworkers’ complaints did not seem to
relate to their sex or other factors contained in the handbook.
The Respondent also relies upon general plant rules that relate
to a whole panoply of possible employee misconduct, including
that of an intimidating and threatening type. In my view, the
complaints of the coworkers did fall into this category. And if
Hamilton had engaged in truly intimidating and threatening
conduct of the genre incorporated in the formal plant rules, he
would have been, in my view, formally disciplined by the Re­
spondent, as were other employees.49 The problem is that it
was not clearly shown about what these coworkers were com­
plaining. In my view, this is a material insufficiency of proof
that fatally undercuts the Respondent’s position regarding the
reasonableness and genuineness of its belief about Hamilton’s
behavior. Significantly, there was no explanation given by the
Respondent for the nonappearance of the two workers whose
complaints led to Hamilton’s discipline at the hearing.50 There-
48 In this regard, I have credited Hamilton’s testimony because he
seemed sincere and straightforward in relating his version of events and
his part in the counseling matter. Also, his testimony is corroborated in
part by Beck and Beck’s yellow card entry. (See GC Exh. 5.)
49 See. R. Exh. 10, which contains formal disciplinary notices for a
number of employees who were disciplined by the Respondent for
violation of the general plant rules, including threatening and intimidat­
ing employees.
50 My research of applicable cases, and consideration of those cited
by the Respondent, reveals that as a general proposition where the
Board has sanctioned reasonableness of the employer’s belief in viola­
tions of company policy, the employer has produced evidence regard-
WHIRLPOOL CORP. 741
fore, without a clear understanding of the exact nature of Ham­
ilton’s conduct which moved the coworkers to complain, I am
left to speculate about what formed the basis of the Respon­
dent’s belief, irrespective of whether it was reasonable or genu­
ine, that Hamilton violated its policies. It is not sufficient in
my view to use harassment and intimidation as mere shibbo­
leths to justify interference with rights guaranteed employees
under the Act. Therefore, under Wright Line, I would find and
conclude that the General Counsel has met her burden and that
the Respondent’s defense fails on sufficiency grounds. Accord­
ingly, I would find that the Respondent violated Section 8(a)(3)
by impermissibly disciplining Hamilton because of his union
activities and to discourage his and other employees’ involve­
ment with the Union.
4. The discipline of Jerry Pore
The Respondent submits that known union activist Pore was
counseled essentially because three employees complained
about Pore’s soliciting activities and demanded of management
that his activities cease. Thus, the Respondent argues that “it
was Pore’s solicitation manner, and not the mere fact that he
was violating Whirlpool’s policy that necessitated him to be
counseled” (R. Br., p. 21) and his yellow card annotated.51
First, here again, none of the three complaining coworkers
testified and, at best, based on Obenour’s testimony, it would
appear that these workers were merely annoyed by Pore’s daily
requests to sign authorization cards, presumably, on company
time during work hours. However, under oath, Pore denied
handing out literature and seeking signatures for the cards on
worktime, except where someone specifically requested materi­
als. This denial, if credited, significantly undercuts the Re­
spondent’s position. Thus, the resolution of this matter re­
dounds to Pore’s credibility because clearly, his sworn on-the-
record testimony, if believed, would trump the basically hear-
say and frankly underdeveloped “testimony” of the three pur­
ported complaining coworkers. As noted earlier herein, I did
not fully credit Pore’s testimony regarding the Holtgreven inci­
dent. However, Pore was not a totally incredible witness.
Clearly, his memory was not the sharpest, but I attribute this to
the passage of time (nearly 3 years have elapsed), and other
witnesses similarly and understandably experienced difficulties
in recall. So I will not hold this against him. On balance then,
ing the basis of its belief, usually in the form of testimony from other
employees who witnessed the violation in question. See, e.g., Ameri­
can Thread Co., 270 NLRB 526 (1984), and Hicks Ponder Co., 168
NLRB 806 (1967).
51 The Respondent evidently concedes that in spite of its no-
solicitation rule, Pore’s supervisors had previously allowed him to
violate it for example, Obenour admitted that she saw Pore engaging in
a prohibited solicitation prior to the counseling session but did not
counsel him or ask him to stop the activity. Also, the Respondent
seemingly does not dispute Pore’s testimony that he and other employ­
ees, including supervisors, were buying from and selling to one another
on the work floor and during work hours various nonbusiness items,
i.e., candy bars for school and church-related fund raisers. It seems that
these types of activities took place on an ongoing basis with no inter­
ference from management. I note that there evidently were no com­
plaints about these other employee solicitations communicated to man­
agement.
in my view, Pore was a credible and candid witness in this
counseling matter and his denial of the accusations regarding
his “manner” of solicitation is credited. As to the “complaints”
of the three employees relied upon by the Respondent to en-
force its no-solicitation policy, the Respondent evidently
elected not to call either or any of them, nor did it explain their
non-appearance. While I do not draw any negative inference
from their non-appearance, the record nonetheless is devoid of
sufficient evidence to rebut Pore’s credited denial of any behav­
ior violative of the policies under which the Respondent claims
to have justifiably counseled him. Thus, because the record is
thus deficient, I cannot conclude that the Respondent’s counsel­
ing of Pore was based on a reasonable and genuine belief that
Pore violated its policies and in spite of his engaging in pro­
tected activities, the Respondent would have counseled him
nonetheless.52 I would find and conclude that the General
Counsel has met her Wright Line obligations and that the Re­
spondent, on grounds of insufficiency, has failed to establish its
defense that it would have taken the action against Pore in spite
of his engaging in protected activity.
CONCLUSIONS OF LAW
1. Whirlpool Corporation, the Respondent herein, is an em­
ployer engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By its supervisors’ informing employees that they were
not allowed to distribute union literature on company property,
the Respondent violated Section 8(a)(1) of the Act.
4. By disciplining employees David Hamilton and Jerry
Pore because they assisted the Union and engaged in concerted
activities and to discourage employees from engaging in these
activities, the Respondent violated Section 8(a)(3) and (1) of
the Act.
5. By the aforesaid conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
6. The Respondent has not violated the Act in any other
way, manner, or respect.
Having found that the Respondent has engaged in unfair la­
bor practices warranting a remedial order, I shall recommend
that it cease and desist from engaging in such conduct and that
it take certain affirmative action designed to effectuate the poli­
cies of the Act.
The Respondent having discriminatorily disciplined David
Hamilton and Jerry Pore, I shall recommend that it be ordered
to make them whole for any loss of earnings and other benefits
they may have suffered by virtue of the discrimination prac­
ticed against them, computed on a quarterly basis as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), less any interim
earnings, plus interest as computed in accordance with New
Horizons for the Retarded, 283 NLRB 1173 (1987).
52 I would also note that the discriminatory nature of Pore’s disci­
pline is buttressed by the Respondent’s evident widespread allowance
and/or condonation of violations of the no-solicitation rule by employ­
ees who engage in nonprotected activities.
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended53
ORDER
The Respondent, Whirlpool Corporation, Findlay, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that they are not allowed to distribute
union literature on company property.
(b) Disciplining or otherwise discriminating against any em­
ployees for assisting the Union and engaging in concerted ac­
tivities; and discouraging employees from engaging in their
activities.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act.
(a) Make David Hamilton and Jerry Pore whole for any loss
of earnings and other benefits suffered as a result of the dis­
crimination against them in the manner set forth in the remedy
section of this decision.
(b) Within 14 days from the date of this Order, remove from
its files, including so-called yellow cards, any reference to
David Hamilton and Jerry Pore’s unlawful discipline (counsel­
ing), and within 3 days thereafter, notify them in writing that
this has been done and that the disciplines will not be used
against them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay
53 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom­
mended 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 purposes.
roll records, social security payment records, timecards, per­
sonnel records and reports, and all other records necessary to
analyze any backpay which may be due under the terms of or
other compliance with this Order.
(d) Within 14 days after service by the Region, post at its fa­
cility in Findlay, Ohio, copies of the attached notice marked
“Appendix.”54 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re­
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed­
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since October 3, 1996.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
54 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”