Aker Plastics Company, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1982

262 N.L.R.B. 1128 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aker Plastics Company, Inc. and Kathy Fort. Case
25-CA-13164
July 21, 1982
DECISION AND ORDER
MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 23, 1982, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Aker Plastics Company, Inc., Plymouth, Indiana,
its officers, agents, successors, and assigns, shall
take the action set forth in said recommended
Order, as so modified:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
discharge of Kathy Fort on December 8, 1980, and
notify her in writing that this has been done and
that evidence of this unlawful discharge will not be
used as a basis for future personnel actions against
her."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producrs
Inc., 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
262 NLRB No. 147
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discourage you from mem-
bership in or activities on behalf of United
Steelworkers of America, or any other labor
organization, by discharging or otherwise dis-
criminating against you in any manner in
regard to your rates of pay, wages, hours of
employment, hire or tenure of employment, or
any term or condition of your employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of rights guaranteed under Section 7
of the Act.
WE WILL offer Kathy Fort immediate and
full reinstatement to her former job or, if that
job no longer exists, to a substantially equiva-
lent position, without prejudice to her senior-
ity and other rights and privileges previously
enjoyed, and make her whole for any loss of
earnings she may have suffered, plus interest.
WE WILL expunge from our files any refer-
ences to the disciplinary discharge of Kathy
Fort on December 8, 1980, and WE WILL
notify her that this has been done and that evi-
dence of this unlawful discharge will not be
used as a basis for future personnel actions
against her.
AKER PLASTICS COMPANY, INC.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: This
case was heard at Plymouth, Indiana, on September 28
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AKER PLASTICS COMPANY, INC.
and 29, 1981. The charge was filed on February 17, 1981,
by Kathy Fort, an individual, against Aker Plastics Com-
pany, Inc., herein called Respondent. The complaint was
issued on April 6, 1981, and alleges that Respondent vio-
lated Section 8(a)(l) and (3) of the Act by the discharge
of employee Kathy Fort because of union and other con-
certed activities protected by the Act.
All parties were given full opportunity to participate,
to produce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
were filed by both parties.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, an Indiana corporation, maintains its prin-
cipal office and plant at Plymouth, Indiana, where it is
engaged in the manufacture, sale, and distribution of fi-
berglass bathtubs and basins and related products.
During the 12-month period ending April 16, 1981, Re-
spondent in the course and conduct of its business oper-
ations at Plymouth, Indiana, sold and shipped from its
plant products and materials valued in excess of $50,000
directly to points outside the State of Indiana. For the
same period of time it purchased and received at its plant
products and materials valued in excess of $50,000 direct-
ly from points outside the State of Indiana.
It is admitted, and I find, that Respondent is and has
been at all material times an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that the United Steelworkers
of America, herein called the Union, is, and has been at
all material times, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent in December 1980 employed about 120
employees on two shifts.' About 70 employees were em-
ployed on the first shift, of whom 10 were assigned to
the final finish department. Respondent's president and
general manager is Don Aker who maintains his office at
the plant. Subordinate to Aker is Plant Manager Stan
Edel, Production Foreman Jeff Birchmeier, final finish
foreman, Kevin Chaney, and the gel area foreman, Greg
Holland, who are all admitted supervisors within the
meaning of the Act.
Kathy Fort was employed from August 1978 until Oc-
tober 1979 when she quit, and again from January 1980
until she was discharged on December 8. Fort was em-
ployed on the day shift in the final finish department, as
was her friend Laura Pippenger Mathews who was em-
ployed from 1978 until she voluntarily quit in January
1981.
' All dates herein, unless otherwise indicated, are 1980.
On Saturday, November 15, Fort and Mathews attend-
ed an educational seminar where they obtained, inter
alia, information regarding union organizational rights of
employees. Fort and Mathews thereafter made contact
with the Union and eventually arranged to meet with
Union Representative Don Winslow at Warsaw, Indiana.
Prior to the meeting with Winslow, according to Fort
and Mathews, they met, upon their request, with Don
Aker, Chaney, and Edel at the plant on November 17 or
18, in Aker's office at the end of the workday.
Fort and Mathews characterized the purpose of the
meeting as a last effort on their part to induce Aker to
improve working conditions affecting all employees
before engaging in union organizing efforts. According
to them, a variety of complaints of working conditions
was raised by them, including lack of adequate heat in
winter, fumes from chemicals and machines, the mess left
over by night-shift employees which day-shift employees
were called upon to clean, and complaints concerning
their supervisors. Fort and Mathews also testified that
the subject of the forthcoming newly instituted plant
Christmas party was raised and that they complained
about it inasmuch as it resulted in the loss of the employ-
ees' past annual $20 Christmas bonus, as well as having
other perceived disadvantages. Aker and Chaney in their
testimony sought to characterize the nature of the meet-
ing as that of a discussion of Mathews' persisting health
problems and resulting high absenteeism. Edel did not
testify. Fort and Mathews conceded that part of the dis-
cussion incidentally related to the impact of plant fumes
upon Mathews' health. Mathews testified she had mani-
fested certain allergy symptoms since July which had
caused her a high degree of absenteeism, and according
to her uncontradicted and credible testimony she had in-
formed Chaney 2 months earlier that she was undergoing
tests conducted in a hospital to ascertain the cause of her
symptoms. She conceded that 2 months earlier Chaney
and Edel complained to her that she was not performing
her fair share of the work, that she could not be depend-
ed upon, and that Edel told her several times that Re-
spondent would have to get someone more dependable.
On cross-examination, Mathews denied that the "only"
or "basic" reason for the meeting was to discuss her
health problems, although she conceded that she had
previously told fellow employees that she was concerned
about whether she could retain her job through Christ-
mas. At one point in her testimony she conceded that the
plant fumes were also her personal complaint because
she felt that it was at the root of her allergy problems
and conceded that that was the "main reason" she was
present at the meeting but added that she was "pretty
unhappy with the rest of the working conditions too."
She conceded that she is an emotional person who
"sometimes" has difficulty speaking for herself, and that
that was one of the reasons Fort accompanied her to the
meeting with Aker.
Aker was oblique in his testimony regarding the meet-
ing and only peripherally touched upon the November
meeting. He did not testify as to when that meeting oc-
curred nor did he narrate the substance of it. Chaney tes-
tified initially that the meeting occurred in pursuance to
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a letter dated November 20 that Mathews had received
from her physician and that he heard no discussion of
matters other than Mathews' health and her absenteeism.
However, on cross-examination he conceded that the dis-
cussion "possibly" involved the lack of heat in the plant
and also involved the fumes. He conceded that Fort,
during the meeting, complained of the lack of access to
him by employees. He testified that he did not recall a
discussion of the night shift's mess at the meeting but
that Fort had complained about it in the plant more than
once. Upon redirect examination, after several suggestive
questions, Chaney testified regarding the discussion of
fumes: "It sounded to me like they were talking about
Laura's problem." Chaney's testimony with respect to
the non-Christmas party topics was generalized and
marked by a high degree of uncertainty in demeanor. It
was not corroborated by detailed testimony of Aker, nor
by any testimony of Edel, who for unknown reasons did
not testify at the hearing.
On these topics Fort and Mathews were detailed and
more certain. I therefore conclude that on November 17
or 18 Fort and Mathews not only discussed Mathews'
health problems, but also complained about the lack of
heat in the plant, the fumes in general, about supervision,
and about the night-shift mess that day-shift employees
were compelled to clean. I also credit their testimony
that the meeting preceded the November 20 medical
statement.
A great deal of testimony related to whether or not
Fort and Mathews also complained of the forthcoming
Christmas party at the November meeting. Aker and
Chaney adamantly insisted that that topic was not dis-
cussed. Aker testified that the idea of a Christmas party
in lieu of not only the Christmas bonus, but also in sub-
stitution for the annual Thanksgiving Day party, was not
yet "born." Fort and Mathews insisted that shortly
before the meeting they had heard rumors that a Christ-
mas party was to be held in lieu of the Christmas bonus.
They both testified that they complained about the loss
of the Christmas bonus, and a proposed admission fee to
the party, and that Aker responded that he could no
longer afford the $20 yearly bonus. 2
Employee Ida Miller testified that the idea of a Christ-
mas party in lieu of a Thanksgiving Day party was sug-
gested to Aker by her on Thursday or Friday, Novem-
ber 20 or 21, as part of a discussion relating to the prep-
arations as yet not taken for the annual Thanksgiving
Day party. Miller testified that Aker responded that he
would think about it. Aker testified that this occurred "2,
3 or 4 days" before Thanksgiving Day which fell on No-
vember 27. Miller testified that the reason she ap-
proached Aker was that it had been customary for her to
prepare the meat for the party and, as yet, she had not
heard from Aker, and she was concerned about being
able to prepare in time. She testified that she made her
suggestion for a Christmas party when Aker told her
that there could be no Thanksgiving Day party that year
because of the increased size of the plant. However,
Aker's testimony regarding another subject to be dis-
2 Aker credibly testified that the cost of the party actually exceeded
the cost of a S20 per person bonus by 30 percent.
cussed more fully hereafter, i.e., the defacement of the
Christmas party announcement memo, is revelatory.
Aker testified that on December 8 he entertained the
thought that Mathews might have been involved in the
defacement of December 8 because she had been to his
office previously and had engaged in a discussion with
him. The November discussion was the only meeting
that had transpired before December 8. The only rational
basis for Aker to have made such a connection is that
the subject of the Christmas party was raised at that
meeting. I therefore conclude that at the meeting on or
about November 17 or 18, Fort and Mathews did com-
plain about the loss of the annual bonus, the requirement
of an admission fee to the Christmas party, and that
Miller was either mistaken as to the date of her conver-
sation, or that Aker had already considered holding a
Christmas party and mentioned it to others before Miller
was made aware of it.
The day following the November meeting, according
to Mathews' testimony which I credit, Chaney asked her
for a statement from her physician setting forth her
medical problem, and stated to her that "maybe" Re-
spondent could help her. Within a few days Mathews ob-
tained a medical statement from her physician dated No-
vember 20, and gave it to Chaney. The statement was
drafted in the form of a letter addressed to Respondent
and was signed by Dr. Guild and set forth, inter alia, a
recital of symptoms that had persisted for 6 months, the
fact that Mathews had been examined by an allergist, the
"feeling" that there was a "possible connection between
her symptoms and her work," the suggestions that "per-
haps" there were fumes or toxic materials causing the
symptoms, and the fact that the physician suggested to
Mathews that "she remove herself from any areas that
she can identify as having odors and dust particles in the
air."
On or about December 1, Mathews was contacted by
a union business agent and a meeting was arranged for
Saturday, December 6, at a place in Warsaw, Indiana.
During this time Fort in conversations with coworkers
became an outspoken critic of the Christmas party and
encouraged fellow employees to boycott the party. On
Thursday, December 4, Aker distributed a memorandum
which announced the Christmas party, set forth the date,
time, and place, and stated that the event would entail a
cocktail party, a catered buffet dinner, dancing, door
prizes, a limit of one gpest per person, a donation of
$2.50 per person, and a requirement that reservations be
made before 3:30, p.m., Tuesday, December 9. Multiple
copies were placed on the tables in the lunchroom, and
one copy was posted at the bulletin board area near the
timeclock.
On the morning of Thursday, December 4, during the
break period, in the lunchroom, according to Fort's testi-
mony, she and several employees, excluding Mathews,
discussed the memo, which Fort read aloud and criti-
cized. Several employees made suggestions as to what
comments might be written on the memo, and Fort
thereupon scribbled the following remarks: In the left
margin she wrote "Hoot Off," which she testified was a
locally used expression equivalent to "screw off" or "kiss
1130
AKER PLASTICS COMPANY, INC.
off." She added in the margin "limit 2 drinks," and "cold
beans, cold Baked potatoes, Gr. beans, Salisbury steak,
Hot dogs & beans." Adjacent to "Dancing" she wrote
"To the rousing 20's." Next to "door prizes" she wrote:
Ist prize TS60 [i.e., Respondent's product, a tub]
2nd prize 2nd TS60
3rd prize Picture of Don Aker w/Darts
The defaced memo was left on the table. It remained
there for the day, but was not seen by Fort the next day.
Aker testified that by Friday, December 5, there was a
dearth of reservations for the party, particularly among
the final finishers. He therefore talked to his foreman
who reported to him that rumors were being spread
which denigrated and misrepresented the nature of the
party.
On Saturday, December 6, Fort and Mathews met
with union agent Winslow in Warsaw, signed union au-
thorization cards, and obtained other union authorization
cards.
On Monday morning, December 8, according to
Aker's testimony, his attention was brought to the de-
faced memo at or about 9:30-9:45 a.m. by his son Mark,
an employee who is one of several relatives of Aker em-
ployed in the plant, who placed the memo on his desk
and who told him that he had heard employees making a
"mockery" of the Christmas party "down there," and
that when he went to investigate he found the memo.
There is no explanation as to why this memo was not
brought to Aker's attention the preceding Friday by the
foreman who had brought him the earlier reports of em-
ployee discontent. Aker testified that he assumed that the
memo had been posted on the bulletin board although
Mark Aker did not say so. Aker testified that he became
upset that someone whom he was paying $200 a week
"hated" him to such an extent as to suggest that darts be
thrown at his photograph. He did not testify that he was
aware of the meaning of the phrase, "hoot off," or
whether he considered it to have been used as an adjec-
tive or as an imperative verb. Aker testified when ques-
tioned whether he had decided to discover the identity
of the employee responsible for the defacement:
I never even thought of it, until-I never dreamed
anybody would admit it. I figured that if I could
find out who it, was, yes, I'd fire them.
However, he further testified: "I wasn't trying to really
find out [who was responsible]," because of the ensuing
events.
On the morning of Monday, December 8, Fort and
Mathews took to work union authorization cards but did
not mention the Union to anyone until the first break pe-
riods at 8:45 to 9 a.m. in the breakroom (i.e., lunchroom),
when they talked to different groups of employees at dif-
ferent tables. Fort spoke to a group of 10 employees, in-
cluding Kevin Birchmeier, the brother of Supervisor Jeff
Birchmeier, about the benefits of union representation
and solicited their authorizations for representation.
Mathews explained to the group of eight employees with
whom she sat that Fort had union cards and that, if they
were interested, to let either Fort or her know. Employ-
ees at both tables discussed the advantages and disadvan-
tages of union representation. One employee signed a
union card for Fort, and another, Brian Eckman, accept-
ed a card, while others expressed a negative reaction.
Fort and Mathews later resumed similar discussions at
the beginning of the lunch period in the lunchroom.
Between the first break and the lunch period, rumors
of Fort's and Mathew's union solicitations became wide-
spread. Respondent's witness, patcher painter Mary
Myers, whose duties take her throughout the plant, de-
scribed the situation as a "commotion in the plant."
Myers assumed at the time that Fort was responsible for
the union solicitation because of Fort's past openly ex-
pressed dissatisfaction "with everything at work." Gel
Area Foreman Holland confirmed in his testimony that
Fort was known as an outspoken complainer of working
conditions.
Within 3 minutes after the end of the first break
period, Eckman took the union authorization card that
he had accepted from Fort and showed it to Holland and
they engaged in a discussion of the relative advantages
and disadvantages of union representation. Eckman testi-
fied with a reluctant demeanor and did not disclose the
details of the conversation. Holland testified that not
only Eckman but that also Kevin Birchmeier reported to
him at or about 9 a.m. that union cards were being dis-
tributed. He also testified that they were later augmented
by six other employees, including David Bowers. He tes-
tified that he had assumed that Eckman and Birchmeier
had just left the breakroom. He further testified that as
of 12:30 p.m. he did not know "for sure" who passed out
cards but that he could not recall whether he asked em-
ployees who were distributing the cards. He testified that
he did not become aware of, as a result of those reports,
the identity of those persons. He then testified that, al-
though he was curious, he did not question employees as
to the identity of the card solicitors. Bowers was called
as a witness for the General Counsel, but he was as re-
luctant in demeanor as Eckman, and he also did not
reveal the details of his conversation with Holland
within 1 hour after lunch, except that he and Holland
agreed that it would be foolish to try to organize the
plant and that Don Aker would not like it. He did testify
without contradiction that Holland stated that Don Aker
would "fight it all the way." He had no recollection as
to whether the identity of the card solicitors was dis-
cussed.
Holland testified that after he talked to Eckman and
Kevin Birchmeier, but before any further reports, he re-
layed their reports to Edel who told him to forget it and
not to talk to anyone about it.
Ida Miller, an employee engaged in mold repair work,
testified without contradiction that while she was at
work in her department at some time between first break
and the lunch period, Stan Edel asked her as he walked
by, whether she had heard any rumors. She responded
negatively. Later she had lunch with Meyers in the
lunchroom and was told by Meyers that Fort was at-
tempting to solicit support for the Union. Meyers testi-
fied that she and Miller are known in the plant as
"snitches."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aker testified that he decided to confront the finishing
department employees in the lunchroom at the end of
their lunch period for the purpose of explaining to them
the details of the Christmas party and to clear up any
misunderstandings about it. He took the defaced memo
with him. Nonfinishers proceeded to go back to work as
Aker addressed only the finishers. He explained the de-
tails of the party and the purpose of the admission fee;
i.e., door prizes. He testified that as he finished he pulled
from his pocket the defaced memo and held it out anq
stated:
Now, we're going to have a nice party . . . and
look here what somebody did. Defaced this, here's
what they think of our party.
According to Aker, at this point Fort stated, "I did that,
and I think it's funny." Aker testified that he asked all
present whether they heard the admission but that al-
though he was "burning with anger," he did not wish
"to take any action in front of all these people." Aker
testified that Fort then stated that she "wasn't the only
one." He asked her "who else was with you, Kathy," to
which she answered, "I'm not telling." Aker testified
that he then concluded the meeting by stating, "Well,
we're all going to have our party, we want you all to
come, and you, too, Kathy." Aker then went to lunch.
Chaney, who claimed to be present, generally corrobo-
rated Aker, as also did employee Donna Hardesty.
The testimony of Fort and Mathews, with respect to
the lunchroom meeting, varies from that of Aker. They
testified that Aker extended the memo towards Mathews
and asked either who wrote on it or "what do you know
about this?" whereupon Fort asserted that she wrote
upon the memo and that Mathews was not present when
it had occurred, at which point Aker looked at Edel
who had joined the meeting and said "see she did it" or
"I told you she did it," and thereupon told Fort that she
"just blew" her chance for the head section job; i.e., a
position of higher responsibility but equal pay. Fort then
explained that she did it as a joke and that she was sorry.
Aker then said he thought it was not funny, but ended
the meeting by inviting everyone to the party, including
Fort.
Neither Chaney nor Aker explicitly denied the refer-
ence in Fort's and Mathew's testimony to the forfeiture
of the head sectional job, and I credit the latter as more
certain and convincing testimony in this regard.
Hardesty, who was partially corroborated by Math-
ews, credibly testified that, during the entire lunchroom
conversation, Fort laughed and smirked, and in regard to
the defacement said, "where's your sense of humor?"
Mathews testified without contradiction that, during that
part of the meeting when Aker reflected that virtually no
finishers had made reservations for the party and asked
whether anyone had said anything to discourage attend-
ance at the party, Fort laughingly exclaimed, "Oh yes, I
I Eckman recalled little of the conversation, but he corroborated Fort
and Mathews to the extent that he heard Aker ask who had defaced the
memo which then prompted Fort's admission. I find his testimony in this
regard credible as he had nothing to gain by his testimony other than the
alienation of his employer.
have mind control over everybody!" At this point the
employees present all laughed.
Although Aker was "burning" with anger, he did not
immediately discharge Fort who sat before him laughing
and smirking. Instead, he calmed down and expressed
the desire that she attend the party. I therefore credit the
testimony of Fort and Mathews, which was not explicit-
ly contradicted, that Fort apologized at the meeting for
her conduct. Although Aker had testified that when he
first saw the defacement he was of a mind to discharge
the person responsible and, although, according to his
testimony, Fort asserted that other employees had colla-
borated on the defacement, Aker made no immediate
effort to ascertain the identity of those other persons.
Aker took no action until shortly before the end of the
workday when he summoned Fort to Edel's office
where, in the presence of Edel and Chaney, Fort refused
to disclose the identity of the defacement collaborators.
Aker then discharged Fort by issuing to her a termina-
tion notice which stated: "Discharged-Defacing Com-
pany Memo-Bulletin Board." Aker also stated to her
that he would fire those employees who had joined in
the defacement if Fort disclosed their names. Aker testi-
fied that he had erroneously assumed that the memo had
been posted, and that he actually discharged Fort, not
for the act of defacement per se, but because of the sub-
stance of what Fort had written on the memo.4
Aker was pressed by the counsel for the General
Counsel to explain what efforts were made to uncover
the identity of other employees who had joined Fort in
the defacement either on that Monday afternoon or at
any time. However, he hesitantly and most unconvinc-
ingly testified that he made only a "slight" attempt to do
so, which consisted of summoning to his office Mathews
whom he suspected may also have been responsible or
who might have disclosed the identity of the other re-
sponsible employees. This suspicion was entertained by
Aker because of Mathews' earlier visit to his office. Aker
testified that he had planned on talking to Mathews on
December 8 regarding her medical problem, and had
hoped that she would also volunteer information regard-
ing the defaced memo. However, when Mathews was
summoned to the office by Aker, after Fort's discharge,
Aker admittedly did not refer to the defaced memo
either explicitly or implicitly. Instead, Aker discussed
Mathews' medical statement dated November 20, which
she had submitted to Respondent 2 weeks earlier. The
details of that confrontation were testified to by Math-
ews credibly and without contradiction. At that meeting
Aker told Mathews that he was concerned about her
health and that he was worried about possible liability
for injury she may suffer as a result of working condi-
tions. She was asked whether she was being seen by a
physician, to which she responded that she was, on a
weekly basis. She was told that the November letter was
"unclear" and that a work release was needed. She was
urged to obtain one immediately. On December 8, Math-
ews later obtained another statement from her physician
which in effect summarized the contents of the Novem-
* With respect to the exit interview, I credit the testimony of Fort
which is essentially uncontradicted.
1132
AKER PLASTICS COMPANY, INC.
ber 20 letter to which it explicitly referred. Mathews de-
livered the December 8 medical statement to Respondent
at 10 a.m. on December 9. She voluntarily did not report
to work until December 10 because she was uncertain as
to whether she desired to return to the plant which ap-
parently to her was contributing to her illness. However,
she reported to work on December 10 and was assigned
to a lesser paying office position, away from the plant
fumes, and away also from the plant employees whom
she and Fort had solicited for union support. Mathews
thereafter worked until January and resigned after she
had submitted a written resignation which thanked Re-
spondent profusely for its efforts to assist her in coping
with her health problems.
Aker testified that, since Fort had refused to disclose
the identity of her defacement collaborators, he simply
dropped the matter.
The General Counsel adduced credible testimony to
the effect that in prior years unknown persons had de-
faced company postings and had scrawled upon the
walls of the restrooms unflattering references to Re-
spondent's supervisors and managers, and that no formal
meetings were conducted by Respondent for the purpose
of discovering the authors.
Fort testified that she and Don Aker had maintained
an informal, if not loose, employer-employee relationship
throughout her employment. According to her testimo-
ny, she commonly and frequently greeted Aker in the
plant in the presence of employees and outside visitors
with loud, vulgar, but joking epithets, e.g., "tubby" (they
both concurrently attempted dieting regimens); "shit
face" (Aker grew a beard at one time); "fat fucker," and
"cheap," and often accompanied such remarks with a pat
of her hand on his posterior. She testified that Aker re-
sponded with a laugh and a joking retort, but never re-
sponded with a warning of discipline. Aker testified that
Fort frequently directed vulgar language to everyone in
the plant, including himself, but that on only one occa-
sion did he do anything about it. In the summer of 1980,
according to Aker, Fort directed some loud, vulgar com-
ment to him in the presence of a customer. He testified
that she particularly engaged in such conduct toward
him when plant visitors were present. He failed to testify
how long he had endured this treatment. He could not
recall the comment. Aker did not contradict Fort's de-
scription of the vulgarities she used nor her testimony
that he reciprocated with friendly retorts. Aker testified
that he told Edel to tell Fort to desist from such conduct
or else she would be fired "on the spot," and thereafter
such conduct stopped. Fort denied that she was never
reprimanded and insisted that she continued such con-
duct at least weekly until she was discharged. As Edel
did not testify, I credit her testimony that she was not
ever warned of discipline for such conduct. In view of
this credibility finding, I conclude that there was there-
fore no reason for her to stop such conduct, and I credit
her testimony that she persisted in it during the remain-
der of her employment, and that Aker continued to
accept it.
Respondent adduced testimony to the effect that fin-
ishers are important workers whose job functions are es-
sential to the flow of work, and that it is a matter of
great inconvenience to replace a good finisher because of
a 2- or 3-month training period to effectuate the required
skills. Fort was considered by Aker to have been a
"pretty good" worker, and her work quality was such as
to have motivated him in rehiring her after she had quit
an earlier employment for a better job from which she
subsequently was laid off. Respondent's reluctance to
lose finishers is evidenced by its lengthy tolerance of
Mathews' high absenteeism record despite repeated
warnings to her that she would have to be replaced.
Although Aker testified that it is an unspoken rule
based upon commonsense not to deface company proper-
ty, he testified, as noted above, that Fort was discharged
for the substance of what she scribbled on one of many
announcement memos. There is no evidence that Re-
spondent maintains a formal or even an informal work
conduct policy. There is no evidence of past discharges
based upon employee insubordination or misconduct.
There is no evidence in the record of past behavior in-
dicative of Respondent's tolerance level of insubordina-
tion or lack thereof, other than what is recited herein.
Analysis
The General Counsel contends that Fort was dis-
charged because of her union activities and alternatively
because of her concerted protected activities; i.e., pre-
senting complaints of working conditions affecting her-
self and other employees, including, inter alia, complain-
ing of the loss of the Christmas bonus and substitution of
a Christmas party.
Respondent argues that the General Counsel has failed
to prove that Respondent was aware of and was hostile
to Fort's union activities. Rather, it argues Fort was dis-
charged for justifiable business reasons; i.e., insubordina-
tion. Knowledge of union activity, however, can be in-
ferred from the circumstances; e.g., prevalence of rumors
in the plant, size of unit, timing of the discharge, and
pretextual nature of the reason proffered for the dis-
charge. Wiese Plow Welding Co., Inc., 123 NLRB 616
(1959); Famet, Inc., 202 NLRB 409 (1973); Tayko Indus-
tries, Inc., 214 NLRB 84, 88 (1974); The Huntington Hos-
pital, Inc., 229 NLRB 253 (1977); Speed-O-Lith Offset
Co., Inc., 241 NLRB 928 (1979).
The court stated in Shattuck Denn Mining Company v.
N.LR.B., 362 F.2d 466, 470 (9th Cir. 1966):
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be availa-
ble that is not also self-serving. In such cases, the
self-serving declaration is not conclusive; the trier
of fact may infer motive from the total circum-
stances proved. Otherwise no person accused of un-
lawful motive who took the stand and testified to a
lawful motive could be brought to book. Nor is the
trier of fact-here the trial examiner-required to
be any more naif than is a judge. If he finds that the
stated motive for a discharge is false, he certainly
can infer that there is another motive. More than
that, he can infer that the motive is one that the em-
ployer desires to conceal-an unlawful motive-at
1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least where, as in this case, the surrounding facts
tend to reinforce that inference.
The Board in reevaluating the burden of proof in dual
motivation cases has recently explicated and announced
the following causation test for cases alleging violations
of Section 8(a)3) or violation of Section 8(aX1) turning
upon employer motivation.s
First [the Board] shall require that the General
Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a
"motivating factor" in the employer's decision.
Once this is established, the burden will shift to the
employer to demonstrate that the same action
would have taken place even in the absence of the
protected conduct.
In the instant case I conclude that there is sufficient
evidence to establish that Respondent was aware of
Fort's union activities prior to the decision to discharge
her. Fort was known to Respondent as a vigorous
spokesperson for complaints of working conditions af-
fecting herself and coworkers. She and Mathews had re-
cently initiated a meeting with Respondent's managers at
which several such complaints were raised. She had even
more recently strongly criticized the substitution of a
Christmas party for the yearly Christmas bonus to her
fellow employees. The evidence reveals that foremen en-
gaged in the practice of reporting such employee con-
duct to Don Aker; e.g., that rumors were being spread
about the proposed party and that employees were
making a "mockery" of the party. When Fort and Math-
ews attempted to distribute union authorization cards and
to solicit union support, employees lost no time in re-
porting to Foreman Holland. I find it inconceivable that
amidst all the reports received by Holland that he did
not become aware of or assume the correct identity of
the card solicitors. Holland had been a supervisor for
only 3 months and had come to his position from a
locale outside the plant, and yet Fort's reputation as an
outspoken critic of plant working conditions was so
widespread that Holland became aware of it after his ap-
pointment as a supervisor. It is inconceivable that Hol-
land would not have connected Fort with the reports of
union activity. Furthermore, I conclude that Edel, the
plant superintendent, could not have failed to make the
same connection. Indeed, Edel that morning attempted
to obtain information as to "rumors" in the plant that
morning, which plant, as characterized by Respondent's
witness Hardesty, was in a "commotion" over union or-
ganizing efforts of Fort and Mathews. In addition to
Holland, of course, there were other supervisors in the
plant as well as relatives of Don Aker; e.g., Mark Aker,
who had earlier reported employee discussions and atti-
tudes and who could reasonably be expected to have re-
ported rumors of union activity. I conclude that the in-
ference must be raised that Donald Aker became aware
of the union activities of Fort and Mathews at some
point prior to 3 p.m. regardless of the size of the plant
' Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1089
(1980).
which in this case encompassed only 70 day-shift work-
ers on Monday, December 8.6
The question then arises, did Aker discharge Fort be-
cause of her misconduct or because of her union activi-
ties which preceded her termination by a matter of sev-
eral hours? The engagement in other unfair labor prac-
tices or expressions of animosity towards unions is, of
course, relevant in motivational analysis. There is here a
paucity of such direct evidence, apart from Foreman
Holland's apparent speculation to employee Bowers.
However, as the court of appeals noted in the Shattuck
Dean case, supra, an inference of unlawful motivation
can be raised if the proffered reason for discharge is
found to be false.
Akers testified that he decided to discharge Fort
during the meeting in the lunchroom when Fort had ad-
mitted to the defacement, but withheld his announcement
because of the presence of other employees. I do not find
this testimony credible. By all credible accounts of the
witnesses, Aker became visibly angry when he alluded to
the defaced memo but had calmed down at the end of
the meeting when he specifically included Fort in the in-
vitation to the party after, as I have found, Fort apolo-
gized for her conduct. It would have been unreasonable
and perverse for Aker to have extended such an invita-
tion had he made the decision to terminate her. Further-
more, it is also unreasonable that he would have then de-
cided to discharge Fort when, in light of the credited
evidence that prior to the end of the meeting before he
calmed down, he announced to Fort that she had forfeit-
ed the loss of a promotion or job transfer. Such refer-
ence would have been superfluous, if not silly, if indeed
a decision to terminate her had been made. I conclude
that he had intended at most to deprive her of a promo-
tion and that he implicitly accepted her apology by ex-
tending an invitation to her to attend the party. Toler-
ance of Fort's alleged misconduct is in accord with
Aker's past practice which appears to have placed a
preference to the retention of good finishers over the in-
convenience of obtaining and training a replacement,
even though replacement was justified by excessive ab-
senteeism as is evidenced by Mathews' situation. Such
tolerance is also in accord with Aker's past relationship
with Fort. The scribblings on one of many party an-
nouncements do not appear to be much more personally
insulting than some of the embarrassing epithets and ac-
tions directed to Aker by Fort on past occasions, but
rather seem to be of the same nature of patently acerbic
exchanges which were previously taken lightly. Thus, al-
though it is possible that Akers would have been pro-
voked to anger in light of his frustrations over arranging
a Christmas party, it is also most probable that he for-
gave Fort at the lunchroom meeting. Finally, it does not
seem reasonable that, if Aker were still secretly "burn-
ing" with anger after the meeting, that he would have
waited until the end of the workday to discharge Fort. I
conclude therefore that the decision to discharge Fort
was not made at the lunchroom meeting and that it was
not made because of the substance of the defacement
* At no time during his testimony did Aker ever deny such awareness
or suspicion.
1134
AKER PLASTICS COMPANY, INC.
scribblings. I conclude that the decision to discharge
Fort was made for the only other palpable reason; i.e.,
the elimination of a union organizer from the plant.
Fort's discharge coincided nicely with Respondent's de-
cision to remove the only other and more passive union
organizer from the plant scene by transferring Mathews
to an office area. The later decision was made only after
months of pondering Mathews' fate while retaining her
in her plant job, and made at a time when there appeared
to be no precipitating event to make such decision other
than the union activity of that very day.
I am unable to infer that Fort was discharged because
of the concerted activities of herself and Mathews in
protesting and complaining of working conditions of the
employees. Aker was well aware of such activities but
neither expressed concern over such activities per se nor
did he act precipitately upon learning of this conduct as
he did subsequent to the union card solicitations. At
most, the record reveals that Aker was displeased with
mischaracterizations of the Christmas party, and not
merely because employees criticized the fact that a party
was being given in lieu of a bonus. As I have found
above, Aker did not discharge nor did he intend to dis-
charge Fort during the lunchroom encounter when she
admitted that she had defaced the party announcement.
Accordingly, I conclude that he did not discharge her
because of her criticism of the party as expressed in No-
vember or because of any other complaints she had
raised. The General Counsel via the post-hearing brief
moved to amend the complaint to allege that Respondent
alternatively violated the Act by discharging Fort be-
cause of the comments that constituted the memo deface-
ment. Inasmuch as this conclusionary allegation rests
upon fully litigated events and is so integrally related to
the allegations of the complaint, I hereby grant the
motion. However, I have concluded that Respondent did
not discharge Fort because of the written comments on
the memo. Furthermore, I find that those comments do
not constitute part of the res gestae of the concerted ac-
tivities asserted to fall within the protection of the Act,
as they are distinguishable from that type of excusable
exuberant misconduct occurring spontaneously and con-
current with the protected activity.7
I therefore conclude that the General Counsel has sus-
tained the burden of establishing a prima facie case of
discriminatory discharge for union activities. I conclude
further that Respondent has failed to adduce sufficient
evidence upon which I would be able to find that Fort
would have been discharged for misconduct regardless
of the existence of an inferred unlawful motivation. The
evidence fails to reveal that the discharge of Fort con-
formed to Respondent's past practice or policies regard-
ing employee conduct or work discipline. As noted earli-
er, the evidence is to the contrary.
The complaint also alleges that Respondent violated
Section 8(a)(1) of the Act by Holland's interrogation of
employee Bowers, and Edel's interrogation of employee
Miller, both on December 8.
t Compare, for example, United States Postal Service, 250 NL.RB 4
(1980). and cases cited therein
I conclude that Bowers' testimony failed to disclose
sufficiently clear, certain, detailed, and unambiguous tes-
timony upon which I can conclude that Holland coer-
cively interrogated him. As to the Edel incident, it is
reasonable to infer that Edel intended to obtain informa-
tion about the Union, but all he asked Miller, one of the
two plant "snitches," at the time was, had she heard any
rumors. At that point she had not heard anything about
the Union and therefore merely perceived the question as
a meaningless general inquiry. I conclude that the con-
text of the interrogation was sufficiently ambiguous so as
to preclude me from finding that such a clouded inquiry
would necessarily have been perceived by an employee
as coercive interrogation of union activities of fellow em-
ployees.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has engaged in an unfair labor practice
affecting commerce within the meaning of Section
8(a)(3) and (1) of the Act by terminating the employment
of Kathy Fort on December 8, 1980.
THE REMEDY
Having found that Respondent engaged in an unfair
labor practice, I recommend that it be required to cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act.
It having been found that the Respondent discrimina-
torily terminated the employment of Kathy Fort, it is
recommended that Respondent be ordered to offer her
immediate and full reinstatement to her former or sub-
stantially equivalent position, without prejudice to her
seniority or other rights and privileges, and to make her
whole for any loss she may have suffered by reason of
the discrimination against her. Any backpay found to be
due shall be computed in accordance with the formula as
set forth in F. W Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).8
Upon the basis of the entire record, the findings of fact
and conclusions of law, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 9
The Respondent, Aker Plastics Company, Inc., Plym-
outh, Indiana, its officers, agents, successors, and assigns,
shall:
s See, generally, Ists Plumbing d Heating Co. 138 NLRB 716 (1962).
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived fir all purposes
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discouraging membership in or activities of its em-
ployees on behalf of the United Steelworkers of Amer-
ica, or any other labor organization, by discharging them
or otherwise discriminating against them in any manner
with regard to their rates of pay, wages, hours of em-
ployment, hire or tenure of employment or any term or
condition of their employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them under the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Kathy Fort immediate and full reinstatement
to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority and other rights and privileges, and make her
whole for any loss of earnings she may have suffered by
reason of the discrimination against her in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other docu-
ments necessary and relevant to analyze and compute the
amount of backpay under this Order.
(c) Post at its plant in Plymouth, Indiana, copies of the
attached notice marked "Appendix."' ° Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed as to any alleged violations of the Act not found
herein.
10 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1136