Boyertown Packaging Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1991

303 N.L.R.B. 441 (N.L.R.B. 1991)

441
303 NLRB No. 69
BOYERTOWN PACKAGING CORP.
1 The General Counsel’s motion to strike the Respondent’s exceptions is de-
nied as the Respondent’s exceptions and brief substantially comply with Secs.
102.46(j), 102.46(b)(1)(ii), and 102.46(b)(I)(iv) of the Board’s Rules and Reg-
ulations. In addition, the General Counsel has shown no prejudice due to any
alleged deficiency in the Respondent’s exceptions. The Respondent’s cross-
motion for sanctions against the General Counsel is denied.
2 Pursuant to Rule 102.46(g) of the Board’s Rules and Regulations, special
leave is given to the Respondent to file its reply brief. The General Counsel’s
motion to strike Respondent’s reply brief is denied. The General Counsel’s re-
quest to file a response to the Respondent’s reply brief is also denied. In light
of our decision in this case overruling the Respondent’s exceptions, the Gen-
eral Counsel will not be prejudiced by this denial.
3 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
4 Member Devaney agrees with his colleagues that the Respondent violated
Sec. 8(a)(5) of the Act by failing to provide the Union in a timely manner
with the names of the employees whom the Respondent interviewed in the
course of its investigation of Rissmiller’s driving. Contrary to his colleagues,
however, Member Devaney would also find that the Union’s original January
13, 1989 request for the names of ‘‘complainers’’ (i.e., the names of employ-
ees who gave statements critical of Rissmiller’s driving) was a valid informa-
tion request to which the Respondent was obligated to respond. In reaching
this conclusion, Member Devaney emphasizes that there was no evidence that
the Union had engaged in the type of intimidation or coercion that the judge
found ‘‘the Board’s decision in Anheuser-Busch was designed to prevent,’’
and that the Respondent presented no other special circumstances that would
otherwise justify its refusal to supply the names originally requested by the
Union. Cf. Brown & Sharpe Mfg. Co., 299 NLRB 586 (1990), and Pennsyl-
vania Power Co., 301 NLRB 1104 (1991).
1 The unopposed motions to correct the record filed by General Counsel and
Respondent are granted and the record is accordingly corrected.
Boyertown Packaging Corporation and Graphic
Communications Union, Local 756–S, Graphic
Communications International Union, AFL–
CIO. Cases 4–CA–17929 and 4–CA–18087
June 18, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 12, 1990, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief to the Re-
spondent’s exceptions and cross-exceptions to the
judge’s decision with supporting brief. The Respondent
filed an answering brief to the General Counsel’s
cross-exceptions and a reply brief to the General Coun-
sel’s answering brief to its exceptions.
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 exceptions1 and briefs2 and has
decided to affirm the judge’s rulings, findings,3 and
conclusions4 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Boyertown Packaging Cor-
poration, Boyertown, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Barbara A. O’Neill, Esq., for the General Counsel.
Malcolm L. Pritzker and Steven R. Semler, Esqs., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was tried before me at Reading, Pennsylvania, on
November 15 and 16, 1989, pursuant to charges timely filed
and complaints issued, and subsequently amended, alleging
that Boyertown Packaging Corporation (Respondent) violated
Section 8(a)(5) and (1) of the National Labor Relations Act
(the Act) by refusing to furnish Graphic Communications
Union Local 765-S, Graphic Communications International
Union, AFL–CIO (Union) with certain information relevant
to a grievance filed on behalf of one Helen Rissmiller, and
violated Section 8(a)(4), (3), and (1) by issuing warnings to
Terry J. Augustine because he engaged in union activity and
filed charges and gave testimony before the Board. Respond-
ent denies these allegations.
On the entire record,1 and after considering the compara-
tive testimonial demeanor of the witnesses and the posttrial
briefs of the parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material to this
proceeding, a corporation engaged in the packaging business
with its principal office in Boyertown, Pennsylvania, where
Respondent, in conducting this business, during the year pre-
ceding the issuance of the complaint purchased and received
goods valued in excess of $50,000 directly from points lo-
cated outside the Commonwealth of Pennsylvania. Respond-
ent is, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. SUPERVISORS AND AGENTS
General Counsel alleges, Respondent admits, and I find
that the following named individuals are, and have been at
all times material herein, occupying the positions set forth
opposite their respective names, and are now, and have been
at all times material herein, supervisors of the Respondent
within the meaning of Section 2(11) of the Act and agents
of the Respondent within the meaning of Section 2(13) of the
Act:
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The facts set forth herein are based on a composite of the credited aspects
of the testimony of witnesses, the exhibits, and the probability of the facts
found. Although I do not advert to all of the record testimony or documentary
evidence, it has been weighed and considered. To the extent that testimony
or other evidence not mentioned herein might appear to contradict the findings
of fact, that evidence has not been overlooked but has been rejected as incred-
ible, lacking in probative worth, surplusage, or irrelevant. Bishop & Malco,
Inc., 159 NLRB 1159, 1161 (1966). I have credited some witnesses on some
points but not others. This is not unusual. It is a rare witness whose recollec-
tions are correct in every item placed before him and a trier of fact may prop-
erly credit some of a witness’ testimony without believing all of it. NLRB v.
Universal Camera Corp., 179 F.2d 49 (2d Cir. 1950), vacated on other
grounds 340 U.S. 474 (1951). In making these credibility determinations I
have considered the comparative testimonial demeanor of the opposing wit-
nesses where necessary.
3 Attachments to the letter are deleted.
4 Among charges filed by Augustine are those in Cases 4–CA–17813 filed
January 9, 1989, Case 4–CA–17873 filed February 6, 1989, Case 4–CA–17929
filed March 1, 1989, and Case 4–CA–18087 filed May 18, 1989, all of which
he signed.
Milton G. Berger—Manager of Slit and Finish De-
partment and Lamination Department
John Wood—Technical Manager/Quality Control
Manager
Jeffrey M. Hursey—Vice President of Human Re-
sources
Ace Willard—Night-Shift Supervisor
Tom Galloway—Unit Manager
Jim Gregor—Second-Shift Supervisor
Larry Reppert—Ink Department Supervisor
Ed Matla—Manager of Maintenance Engineering
IV. THE ALLEGED UNFAIR LABOR PRACTICES2
A. Preliminary Findings of Fact
The Union is the exclusive bargaining representative of a
unit of Respondent’s employees covered by a collective-bar-
gaining agreement between the Union and Respondent effec-
tive July 23, 1988, to July 22, 1991. This is the latest in a
series of labor agreements between these parties covering the
same employees. Terry J. Augustine has been the union
president since May 1985, and previously served in that ca-
pacity from September 1983 to January 1985. During his ten-
ure as union president, Augustine has been very active in fil-
ing and participating in the investigation of unfair labor prac-
tice charges against the Employer, pressing numerous griev-
ances, and, in early 1989, attempting to organize another
company owned by Respondents’ parent in Harrisburg, Penn-
sylvania. Respondent’s evaluation of Augustine’s activities is
reflected in a letter to all employees from Lamar Hartline,
Respondent’s vice president and general manager, dated June
7, 1989, reading as follows:
Re: Working Against One Another or With One Another
On 5/16/89 an OSHA inspection was conducted at
Plants #2 and #3 at BPC as a result of the attached al-
leged safety violation filed by the local union president.
While all twelve of the complaints were found in-
valid by the OSHA inspector, nineteen minor items,
such as blocked fire extinguishers or missing guards,
were identified. Most of these have already been cor-
rected by the company. Only a few of these minor cor-
rections were reported or discussed by the Joint Safety
Committee, which was set up for the purpose of keep-
ing this plant safe despite the fact that the local union
president is a member of the Joint Safety Committee.
This OSHA charge is just the latest instance of what
the company perceives to be harassment of the com-
pany by the current leadership of Local 756-S.
This company is not anti-union. I am, however, con-
cerned that the general work force may not be aware
of the facts that cause the company to believe the cur-
rent local union leadership is not interested in working
together to build job security at BPC. Let me review
what has occurred over the past four years.
1. This union leadership has filed 20 alleged safety vio-
lations with OSHA which resulted in two general in-
spections. No major citations were ever issued by
OSHA. This local union leadership has bypassed what
had been an effective safety committee in its attempt
to harass the company. Twenty-eight union-appointed
members of the safety committee have been replaced
by the local union leadership since 1985.
2. This local union leadership has filed 24 unfair labor
practices with the National Labor Relations Board.
They have won none of them.
3. This local union leadership has filed for 30 arbitra-
tions. Two were won by the company, one was won
by the union, four were resolved, three were granted,
and seventeen were later withdrawn by the union.
4. This local union leadership has filed 285 grievances.
132 were resolved, 107 were denied, and the rest they
withdrew.
5. This union leadership attempted to organize the em-
ployees at Harrisburg with local union dues. They
were defeated by 70% of the vote.
6. This union leadership has been paid by the union for
over 535 days of union business time in order to do
all the above.
7. BPC union members have paid over $220,000 in dues
since 1985. As of 3/2/88, the Local has $25,349 left
in assets reported on their latest LM-3 form to the
Department of Labor. We presume that a substantial
sum has been paid by the local treasury in fees and
expenses to finance a number of activities against the
company.
BPC had to spend over $350,000 in legal fees alone
to respond to unfounded charges. This does not include
time and energy spent away from running the business.
I wish we could have used this money on equipment
which could promote added job security.
The recent major layoffs we have experienced re-em-
phasize the tough industry we compete in. As long as
the current local union leadership functions in the man-
ner of the last four years, we will be working against
one another instead of with one another.
I want you all to be aware of how these actions af-
fect each employee at BPC. As long as this is the envi-
ronment here, we will never be as successful or secure
as I’m sure most of us wish we could be.3
The union leadership referred to in the letter is, I find, Au-
gustine who credibly testifies he has filed 10 or 11 charges
against Respondent,4 has filed almost 300 grievances during
his tenure as the Union’s president, filed an OSHA complaint
443BOYERTOWN PACKAGING CORP.
5 Respondent’s brief describing the exchange between Kane and Augustine
on January 3 refers, inter alia, to G.C. Exh. 12, notes purportedly taken by
the Union’s recording secretary, which was rejected at hearing after Respond-
ent objected to its admission. Respondent Counsel’s citation of G.C. Exh. 12
fairly implies he has withdrawn his objection o that document. In the absence
of objection it is therefore now received in evidence. Similarly, counsel for
General Counsel now urges R. Exh. 9 which was rejected pursuant to her ob-
jection now be received, and has therefore withdrawn her objection. It is re-
ceived.
in 1985 regarding a water leak, and headed the organizing
campaign referred to in the letter. There is no evidence of
any similar conduct by any other member of the Union’s
leadership. The letter makes it clear Respondent was un-
happy with Augustine’s charge, grievance, and OSHA filings
as well as his organizing efforts, and considered this conduct
to be ‘‘harassment of the company’’ by Augustine.
Respondent’s attitude toward Augustine’s activities as the
Union’s president, which are all protected by the Act, must
be considered in evaluating the allegations that he received
unlawful warnings because he engaged in such activities, but
it has no bearing on the allegations of unlawful failure to fur-
nish information relating to the Helen Rissmiller grievance to
which now turn.
B. The Alleged Refusal to Furnish Information
The complaint contains the following allegations:
8. On or about January 13, 1989 (orally) and again
on January 24, 1989 (in writing) the Union requested
the Respondent to furnish the Union with certain infor-
mation in connection with the processing of Unit griev-
ance #88-53, including inter alia, statements made by
employees, and the names of employees making the
statements, relative to Rissmiller’s work performance.
9. From on or about January 24, 1989, until on or
about March 31, 1989, the Respondent has failed and
refused to furnish the Union the names of employees
referred to above in paragraph 3.
10. Since on or about January 24, 1989, the Re-
spondent has failed anl refused to furnish the Union
with summaries of employees’ statements referred to
above in paragraph 8.
11. The information requested referred to above in
paragraphs 8, 9 and 10 is necessary for, and relevant
to, the Union’s performance of its function as the ex-
clusive representative of the Unit.
. . . .
20. By the act and conduct described above in para-
graphs . . . 10 . . . the Respondent has . . . been en-
gaging n unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act.
On October 28, 1988, Helen Rissmiller was suspended for
5 days for inattention to duties. This infraction was detailed
by Respondent as follows: ‘‘On 10/26/88 employee while
driving lift truck, drove into refrigerator and in turn hit
power converter and pulled safety conduct out of wire hous-
ing exposing wires. Inattention knocking water container on
floor by power converter.’’
Rissmiller filed a grievance. At a third-step grievance
meeting on January 13, 1989, after Kathy Kane, Respond-
ent’s manager of human resources, stated the company had
received complaints from members of the Union regarding
Rissmiller’s driving, Augustine asked for the names of the
complainers and their statements.5 Augustine testified that
Kane said she would provide the requested information.
Kane testified that she did not say she would provide it. The
recording secretary’s notes of that meeting show that Augus-
tine made such a request but do not show any response by
Kane. If Kane had, as Augustine claims, promised to provide
the information, it is most unlikely the recording secretary
would not have noted it. I credit Kane who appeared to be
truthfully testifying to that which she recalled. It appears
there in fact were no written statements in Respondent’s pos-
session.
By letter of January 2, 1989, Augustine requested Kane to
furnish the following and other information concerning
Rissmiller’s grievance:
Statements made by employees, and the name of the
employees making the statements relative to
Rissmiller’s work performance. The company alleged
that this was a factor in issuing discipline (Union has
previously requested this information on 1/13/89).
Kane did not respond to this request but, in reply to other
requests, replied by letter dated January 30, 1989:
As previously explained to you in the 3rd step griev-
ance meeting, Helen Rissmiller has voluntarily resigned
and is no longer an employee of Boyertown Packaging
Corp. You should be aware of any prior corrective ac-
tions issued to Ms. Rissmiller because union shop stew-
ards always are a part of disciplinary hearings, and I
would hope the union maintains the copies of any em-
ployee corrective action that they are copied on by the
company. In this instance I will duplicate the com-
pany’s efforts by recopying you with her work record.
For reasons known only to him, Augustine chose to phrase
his next letter of February 6, 1989, in terms not likely to en-
dear him to Respondent. Thus he writes:
Ms. Kane, Supervisor, Human Resources
Thank you for your letters dated 1–30–89 which
were delivered to my office with an envelope bearing
the postmark dated 2–3–89. It appears that you are ei-
ther backdating your letters in order to make them ap-
pear timely or you are experiencing a hell of a delay
in your mail delivery system.
As you know, your letters do not contain the infor-
mation I requested and in some cases, you agreed to
supply at our 3rd step meeting on 1–13–89 with wit-
nesses present.
For the time being, I will count your apparent an-
tagonistic attitude as a result of your youth and inexpe-
rience as well as possible bad advice. It would be un-
fortunate if this is the type of labor/management rela-
tions your company hopes to encourage.
You have left me no choice, however than to seek
appropriate remedies in order to obtain the information
the union needs to possess in order to fulfill our obliga-
tion to our membership.
On March 31, 1989, pursuant to advice of counsel who
had been informed by a Board agent that the furnishing of
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Contrary to General Counsel, the fact the complaint alleges an unlawful
refusal to furnish summaries to the Union is either a substitute for a union
request nor a directive to so furnish. It is only an allegation subject to proof.
the names of persons interviewed would resolve the charge
against the company, Respondent’s vice president of human
resources, Jeffrey Hursey, wrote a letter to Augustine advis-
ing ‘‘the company has investigated grievant’s forklift driving
history through interviews of the following unit personnel,’’
and listed 11 names. At some time prior to April 11, Augus-
tine old the Board Agent the Union would be willing to ac-
cept summaries of statements. The Board agent made a sec-
ond call to Respondent’s counsel and told him that if Re-
spondent supplied a summary of the results of the investiga-
tion the Board would certainly dismiss the charge. On this
representation, Respondent wrote to Augustine on April 1,
1989, advising. ‘‘With respect to the Rissmiller investigation,
the substance of our investigation (without waiving our con-
tention that the union is not entitled to our investigative re-
ports), is that the grievant’s driving was unsatisfactory.’’ In
a letter dated April 14, 1989, and containing requests for in-
formation on several matters Augustine made the following
requests relative to Rissmiller’s grievance:
6) In response to our statement about the Rissmiller
investigation, is it the company’s position that inter-
views were conducted with the eleven named individ-
uals named in your 3/31/89 letter, and the results of
those interviews was that the company determined that
the grievants driving was unsatisfactory?
7) For each of the named unit persons interviewed
per your 3/31/89 letter, please provide the precise dates
of the interview.
Hursey wrote back on April 24:
6) As stated in my letter of 3/31/89, the company
during the course of its investigations spoke with sev-
eral people and took its action based on the employee’s
record, which included our interviews of the previously
named employees.
7) These interviews took place from 10/14/88 to
10/27/88.
Thus the situation rests.
Discussion and Conclusions
Much of the following discussion is of only academic in-
terest because there is no persuasive evidence to contradict
Kane’s testimony there are no written statements of wit-
nesses interviewed by Respondent regarding the Rissmiller
affair, and the Union never requested the Respondent to pro-
vide summaries of any such statements.6 The record shows
that the Board agent told Respondent’s counsel that the
Board would dismiss the relevant charges if Respondent
would supply a summary of the results of the investigation.
Apart from the fact this is not on its face a reference to sum-
maries of statements, it is not a request by the Union. The
Board’s agents are clearly not agents of either party to a
charge, and the Board agent did not, so far as this record
shows, represent to Respondent’s counsel that he was asking
for the summary on behalf of the Union. His representation
to Respondent’s counsel was that the Board as conditioning
a dismissal of the charges on the furnishing of a summary
of the investigative findings. In short, the Board agent rep-
resented that the Board was requesting the summaries be
supplied. Parenthetically, the request for ‘‘results’’ was am-
biguous at best and does not c]early refer to the materials,
e.g., statement, on which the ‘‘results’’ were based.
Respondent has no obligation to furnish the statements of
employee witnesses if they existed. Anheuser-Busch, Inc.,
237 NLRB 982, 984–985 (1978); Manchester Health Center,
287 NLRB 328 (1987). What the Union, i.e., Augustine, re-
quested was the statements of employees who complained
about Rissmiller’s driving, not the statements of all witnesses
speaking to her driving. Assuming arguendo this request was
in fact reduced to summaries of such statements and commu-
nicated by the Union to Respondent, it amounts to the same
thing. The Union wanted to know what the complainers had
said and who they were. It does not seem logical that an em-
ployer can be required to furnish identifiable summaries of
statements when it is not required to furnish the statements
because such a solution runs counter to the Board’s concerns
with the dangers which it describes, in Anheuser-Busch,
supra at 984–985, as the reasons for the rule it there pre-
scribed in the following unambiguous terms: ‘‘In any event,
without regard to the particular facts of this case, we hold
that the general obligation to honor requests for information
. . . does not encompass the duty to furnish witness state-
ments themselves.’’ [Emphasis added.] Nothing could be
clearer. The fact the Board also noted in Anheuser-Busch that
the employer did furnish information including the substance
of witness statements was clearly not a reason for the rule
because the Board expressly disavowed any reliance on the
particular facts of the case in arriving at the quoted holding.
Moreover, General Counsel’s citation of Columbus Products,
259 NLRB 220 (1981), and Anheuser-Busch for the propo-
sition an employer is obligated to provide summaries is mis-
placed because the ‘‘summaries’’ in both cases were volun-
tarily provided.
With respect to the furnishing of names of witnesses, the
Board expressly stated in Anheuser-Busch, footnote 5: ‘‘An
employer does have a duty to furnish a union, upon request,
the names of witnesses to an incident for which an employee
was disciplined.’’ The witnesses in Anheuser-Busch were
employees, unlike Transport of New Jersey, 233 NLRB 694
(1977), which required the production of the names and ad-
dresses of nonemployee witnesses, but Anheuser-Busch cites
Transport of New Jersey in support of its holding employee
witnesses names must be furnished. I am satisfied that Re-
spondent was required to furnish the Union upon request
with the names of all the employees interviewed concerning
Rissmiller’s driving. This is not what the Union first re-
quested. What Augustine asked for was the names of the
complaining witnesses, not the others. Revealing the names
of only those who gave evidence damaging to Rissmiller is
little different from delivering the statements of identified
witnesses because the employer would, by naming those who
complained, in fact make a statement on their behalf in their
names. Moreover, the singling out of witnesses adverse to a
grievance spotlights them as opponents to the grievants cause
and, by so doing, unnecessarily enhances the possibility they
may be subject to coercion or intimidation in an effort to
persuade them to change or retract their oral reports pre-
viously given to the employer. It is precisely this possibility
445BOYERTOWN PACKAGING CORP.
of coercion and intimidation of witnesses that the Board’s
decision in Anheuser-Busch was designed to prevent, and I
perceive no logical reason why that same policy of pre-
venting coercion and intimidation of witnesses should not
apply to requests limited to the names of employee witnesses
who complained.
Accordingly, I conclude that although the Union was enti-
tled to the list of names furnished, a short 11-name list
which would have enabled the Union to quickly investigate
what the facts reported by these witnesses were, it was not
entitled to be told which witnesses testified adversely to
Rissmiller. Although the Respondent furnished the 11 names,
as I conclude it was required to do pursuant to the Union’s
January 24 request for ‘‘the names of the employees making
the statements relative to Rissmiller’s work performance,’’
this information was only furnished at the Board agent’s re-
quest on or about March 31, 1989, in an effort to dispose
of the Union’s charge. A 2-month delay in furnishing the
names, and then only furnishing them in what amounts to a
settlement effort, is not in my view satisfaction of Respond-
ent’s obligation to promptly furnish, on request, the names
of all witnesses who had given it information relative to the
grievance, without singling any one or more out as persons
who reported adversely to the grievant. I therefore conclude
and find that Respondent’s 2-month delay in furnishing such
information has not been shown to be unavoidable, had a
reasonable tendency to hinder the Union in its investigation
of the grievance, and violated Section 8(a)(5) and (1) of the
Act. See, e.g., FMC Corp., 290 NLRB 483 (1988), wherein
the Board found a 2-month delay in furnishing requested in-
formation to be violative of Section 8(a)(5) and (1).
General Counsel’s contention that Respondent misled the
Union by providing it with a list of 11 names including
names of employees who may have given statements favor-
able to Rissmiller presumes Respondent was required to sort
out and supply only the negative witnesses’ names. I have
found Respondent was not so required. Moreover, I do not
find it either material or unusual that the Union found no
employee who complained because there is no proof the
Union interviewed all 11 employees, not a particularly oner-
ous task, and because it is not uncommon for individuals to
temper their opinions in accord with the identity of those
who seek it. Neither do I conclude Respondent misled the
Union into believing it had ‘‘statements,’’ and here I believe
General Counsel must mean written statements, because Re-
spondent never claimed to have any. The mere fact Respond-
ent claimed it had investigated and interviewed employees
does not mean producible ‘‘statements’’ existed, nor does it
provide any basis other than pure speculation on which to
form a belief they did exist.
C. The Discipline of Terry Augustine
Respondent issued warnings to Augustine on May 1 and
26, 1989. The first was a verbal warning for the asserted rea-
son, ‘‘Violation of Company Posted Rules and regulations #2
which states ‘You are expected to be in your work area dur-
ing work hours.’’’ The second was a written warning reciting
Augustine violated ‘‘Company Rule #25—Disrespectful con-
duct including abusive or threatening language toward man-
agement, other employees or visitors.’’
The May 1 warning is based on Respondent’s version of
Augustine’s conduct on April 24, 25, and 26, 1989. John
Wood, Respondent’s technical manager, testified that he first
observed Augustine standing near the trash compactor at
10:10 p.m. when employee Doug Diener was bringing trash
to the compactor. Wood further states that Augustine was in
the same place when Wood took trash to the compactor at
about 10:25 or 10:30 p.m. as Wood prepared to leave the
plant, which he did shortly thereafter. When he left Augus-
tine was still in the trash compactor area. Wood is certain
that his observations of Augustine were not between 9 and
9:15 p.m., Augustine’s break period. Wood and Tom Gallo-
way, Respondent’s unit manager, agree that Wood told Gal-
loway on April 25 that he had observed Augustine in the
compactor area on April 24, away from his work station.
Wood avers he reported this because Augustine’s presence in
the trash compactor are for a period of time seemed unusual
to him.
Augustine testified that he was in the warehouse at the
trash compactor for about 3 or 4 minutes during his break
period from 9 to 9:15 p.m., on a day which may have been
April 24, during which time he had a discussion with Doug
Diener, janitor, who asked Augustine, who is a member of
the safety committee, why Diener could not use a forklift
rather than a handtruck to move heavy boxes. Augustine says
he promised to check with the Company. He does not ex-
plain how it came to pass that this meeting took place, by
accident or prearrangement. Diener was not a witness in this
proceeding. Augustine recalls seeing John Wood throw
something in the trash compactor during the discussion with
Diener. On cross-examination, Augustine opined that he
could have gone to the temperature control makeup area ad-
jacent to the trash compactor for a couple of minutes shortly
before the end of the shift at 11 p.m. When asked if he de-
nied being at the trash compactor from 10 to 10:25 p.m. on
the night in question, Augustine responded he had no recol-
lection of then being there. Failure of recollection is not a
denial. Employee Harvey Werstler reports that he was with
Augustine during the 9 p.m. break on April 26, his birthday,
when Diener approached Augustine and went with Augustine
to the trash compactor area. Bearing in mind that Werstler
is the Union’s vice president and therefore probably favor-
ably disposed toward the Union’s charges, he appeared to be
candidly testifying and he can reasonably be expected to
know what happened on his birthday. Both the testimony of
Wood and that of Werstler was believable and seemed cred-
ible. The testimony of one does not directly contradict that
of the other. It is quite possible that Augustine talked to
Diener on two occasions. He believes he may have gone to
the area adjacent to the trash compactor for a couple of min-
utes shortly before 11 p.m. and may have been there on
April 4, and simply states, ‘‘I have no recollection of being
there,’’ when asked if he was at the trash compactor from
10 to 10:25 p.m. The matter is not entirely free from doubt,
but on the evidence before me, particularly the testimony of
Wood and Werstler who both appeared credible and whose
testimonial demeanor was equally impressive and superior to
that of Augustine who here was, in contrast to his testimony
on some other matters of lesser importance uncertain on mat-
ters of considerable importance to an allegation regarding his
conduct. I am persuaded, absent the benefit of Diener’s testi-
mony, it is not unreasonable or improbable to conclude that
Augustine may have talked to Diener on two occasions, the
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See, e.g., Federal Stainless Sink, 197 NLRB 489, 431 (1972).
one reported by Wood on April 24 and the one reported by
Werstler on April 26.
Jeffrey Hursey, Respondent’s vice president of human re-
sources, testified that after he finished speaking to employee
Fred Gehringer about 4:15 p.m. on April 25, and as he was
leaving the area, Augustine left his machine and went over
to talk to Gehringer. Returning through the department about
15 minutes later, says Hursey, he observed Augustine was
still talking to Gehringer. Hursey and General Foreman Asa
Willard credibly agree and I find that Hursey called Willard
on April 25 and asked if Augustine had permission to leave
his work area to talk to Gehringer. Willard said Augustine
had not asked for permission. Willard went to the slit and
finish department and found Augustine was working at his
job. Unit Manager Tom Galloway credibly testified that
Hursey also told him Augustine was absent from his machine
talking to Gehringer for about 15 minutes on April 5 after
4 p.m.
Augustine claims he was in a meeting with Galloway on
April 25, and notes which he represents were accurately
made on April 25, as they do indicate, contain notations the
meeting lasted from 3:50 to 4:50 p.m. Galloway denies meet-
ing with Augustine on April 25, and points to his notes and
desk calendar indicating meetings with Augustine on April
24 and 27. Augustine’s timecard shows he was meeting with
Galloway at 3 p.m. on April 24 and 27. The timecard does
not show Augustine had any meetings with management on
April 25 or 26, but Supervisor Berger testified absence from
work for a meeting with Galloway after first clocking in
would not be noted on the timecard. The notes of neither
witness are particularly convincing, and the timecard is not
conclusive although it does corroborate Galloway there were
April 24 and 27 meetings with Augustine.
Hursey credibly testified he was in New Jersey on April
24, was not in the plant where Augustine works on April 27,
but was in that plant on April 25.
Augustine relates that, on the occasion I conclude occurred
on April 25 but he places on April 26, he saw Hursey talking
to Gehringer and, when Hursey left, he went to check some
work on a machine next to Gehringer, and was talking to
Gehringer when Hursey came back through the area.
Gehringer does not recall the date, but remembers that, after
he talked to Hursey, Augustine came to his work station and
asked a work-related question. According to Gehringer, they
talked for about 5 minutes during which Hursey walked by.
The two thus generally agree on what happened, but they
differ on the purpose of Augustine’s visit. Augustine say he
went to check the rewind work performed by Tom Albitz,
and was approached by Gehringer who told him of some re-
wind work Gehringer had. Gehringer says Augustine came
over to ask him about his rewinds because Augustine would
be doing the next work on them and was out of work. The
reason for Augustine’s visit is probably not of great signifi-
cance to this decision, but I am inclined to believe it more
likely that Augustine visited Gehringer because he was curi-
ous about the reason for the conversation with Hursey. I sus-
pect that is what they most likely discussed, but suspicion is
not evidence.
After receiving the reports of Wood and Hursey, Galloway
relayed them to Supervisor Gregor, and instructed Gregor to
watch Augustine on the night of April 26 and report his ob-
servations to Galloway. Gregor testified that he noted Augus-
tine was absent from his machine from about 10:15 p.m.
until some 15 minutes later when he emerged from the make
ready department and made a 10-minute phone call before
returning to work, all without requesting Gregor’s permission
to shut down his machine, leave the area, or make a phone
call. Gregor states that Augustine’s machine was not running
and he was not on breaktime while gone from the work area
or on the phone. On April 27 Gregor reported to Galloway
on these alleged peregrinations of Augustine on the night of
April 6.
According to Augustine, he was working on the repair of
a rack in his work area from 10:15 to 10:45 p.m. on April
6, only left the area to wash his hands during that time, does
no recall spending any time on the phone during that period;
and was not in the make ready room during that time. His
testimony is supported by employees Allen Ritz and Thomas
Albitz who testify they worked with him on straightening out
the rack, from about 9:30 or 10 p.m. until about 10:30 p.m.,
according to Albitz, or from 10 p.m. for about 45 minutes
according to Ritz who returned to the plant at 10 p.m. after
taking an injured employee to the hospital. The testimony of
Ritz and Albitz was convincing and, considering they are
current employees not likely to deliberately fabricate testi-
mony contradicting their immediate Supervisor Gregor who
has direct control over their employment future,7 I credit
them and Augustine that they were indeed working on the
rack located in their work area for a half hour or so from
about 10 p.m. on. Accordingly, I do not credit Gregor’s oth-
erwise unsupported testimony that he watched the entire de-
partment area during the period of Augustine’s alleged ab-
sence therefrom and would have seen the three employees
working on the rack had they been so doing but did not see
them, nor do I credit his description of Augustine’s conduct
during the time a preponderance of the credible evidence
shows Augustine was in his work area assisting with the
rack. Furthermore, I find it most improbable that Gregor,
Augustine’s direct supervisor, would not speak to Augustine
regarding his absence or use of the phone if it in fact had
happened. Merely observing and saying nothing about such
an alleged violation of company policy fairly implies con-
donation of such conduct, yet Gregor does not claim he said
anything to Augustine about it.
I have concluded that Augustine most likely was absent
from his work for a period of time without permission on
two of the three occasions cited by Respondent as reason for
the oral warning, but I also find it passing strange that not
one of those serving or receiving reports of these infractions
said a word to Augustine about it before issuing the oral
warning. Augustine was not questioned, cautioned, or coun-
seled about any of these three incidents before he was given
the warning, nor does it appear Respondent checked with
Diener or Gehringer regarding the content of their discus-
sions with Augustine on the dates and in the places at issue.
This failure to investigate or, at the very least, remind Au-
gustine of his obligations with respect to absences from his
work station on either of the first two occasions complained
of, coupled with Galloway’s instructions to Gregor with re-
spect to watching Augustine, smacks of an effort to build a
case for discipline rather than an effort to correct Augustine’s
behavior. It also seems peculiar that Galloway thought the
447BOYERTOWN PACKAGING CORP.
8 Wright Line, 251 NLRB 1083, 1089 (1980).
9 General Counsel refers to Albitz and Kent as ‘‘disinterested witnesses.’’
Suffice it to say there was no truly disinterested witness before me.
10 Berger says he investigated the incident a day or two after meeting with
Augustine on May 26. Robert Kent says he was interviewed by Berger on
May 26. Augustine says the investigation was about June 1. Kent’s June 2
retrial affidavit says June 1. Berger’s notes of the interviews are dated June
1. I conclude the evidence favors a conclusion of June 1.
first two incidents, without further investigation, warranted
surveillance of the activities of an activist union president
who by all accounts was known to be constantly involved in
grievances, charges, and meetings requiring his frequent ab-
sence from his work station. Respondent’s lack of interest in
Augustine’s possible explanations is clearly shown by its
preparation of the warning prior to its confrontation with Au-
gustine, its failure to even then seek an explanation, and its
abrupt presentation of a warning based on two uninvestigated
incidents and a third uninvestigated report of events which
I find did not occur.
Augustine has filed numerous unfair labor practice charges
against Respondent, has pressed a large number of griev-
ances, has filed charges of safety violations with OSHA, and
actively led an effort to organize another of Respondent’s lo-
cations. As Lamar Hartline’s letter of June 7, 1989, reflects,
Respondent knew this and was very critical of Augustine’s
activities. At the time of the May 1, 1989 warning, charges
Augustine filed with the Board alleging Respondent com-
mitted unfair labor practices had resulted in a consolidated
complaint issued in Cases 4–CA–17813, 4–CA–17873, and
4–CA–17929 on April 28, 1989, a Friday. I do not think it
was clear that Respondent had received the complaint by
May 1, but it certainly knew of the pending charges which
led to that complaint. These factors combined with Respond-
ent’s failure to caution or direct Augustine to return to work
on the occasions it relies on is more than ample to support
an inference Augustine’s union and charge filing activities
constituted a motivating factor in the decision to warn Au-
gustine. General Counsel has therefore established a prima
facie case that the issuance of the May 1, 1989 warning vio-
lated Section 8(a)(4), (3), and (1) of the Act. The burden
therefore now shifts to Respondent to show it would have
taken the same action in the absence of Augustine’s pro-
tected activity.8 This it cannot do because I do not credit
Gregor’s report of Augustine’s conduct on April 26, 1989. I
find Respondent’s conduct vis-a-vis Augustine was designed
to discourage Augustine’s enthusiastic charge filing and
union activities. Accordingly, I conclude General Counsel
has shown by a preponderance of the evidence the warning
of May 1, 1989, violated Section 8(a)(4), (3), and (1) of the
Act.
On May 26, 1989, Augustine was presented with a written
warning alleging an infraction of ‘‘Company Rule #25–Dis-
respectful conduct including abusive or threatening language
toward management, other employees or visitors.’’
The alleged misconduct occurred during an exchange be-
tween Augustine and Ed Matla, the plant engineer, on May
25. The two give widely differing accounts of what tran-
spired.
According to Matla, he was talking to employee Thomas
Albitz at his machine about 5 p.m. on May 25 when he no-
ticed Augustine looking at him from Augustine’s machine
some 10 feet distant from that of Albitz. This, says Matla,
moved him to say, ‘‘Hi Terry, smile,’’ which drew the fol-
lowing reply from Augustine: ‘‘You are a fllg asshole;
you are a fllg son of a bitch: I hated your fllg guts
before and I hate your fllg guts now; you’re a fllg
liar, a fllg liar,’’ followed by Augustine running to the
telephone as Matla began to say that behavior could not be
tolerated. Matla continues that shortly thereafter Department
Manager Milton Berger and General Foreman Earl Werstler
met him in the aisle and walked with him to Augustine’s ma-
chine where Augustine yelled, ‘‘[H]e is harassing me, I want
him out of here.’’ Matla testified that, upon hearing this, he
said, ‘‘This is a pissing contest and I am getting out of
here,’’ and then left the area.
Augustine’s version is that, while he was standing at the
back of Albitz’ machine, Matla stopped talking to Albitz, ap-
proached Augustine, and told him to smile. Augustine re-
counts that told Matla he was not going to smile, which
prompted Matla to ask what Augustine’s problem was, which
in turn drew Augustine’s reply that his problem was that he
did not like Matla and wanted Matla to leave him alone. Au-
gustine recalls that Matla then repeatedly said Augustine had
a bad attitude and could not talk to Matla that way. Then,
testifies Augustine, he went to the telephone, called Werstler
and Berger and asked them to come out and either ask Matla
to stop harassing him, or tell Augustine he could walk away,
Augustine says that, when Berger arrived, he asked Berger
either to ask Matla to stop harassing him or permit Augustine
to walk away. Berger and Matla left together. According to
Augustine, this was all that was said. He testified that when
Matla told him to smile ‘‘there was something that I inter-
preted as antagonism in the way he said it.’’ He further
states that after he told Matla he was not going to smile, and
Matla asked what his problem was, ‘‘There was something
in his tone of voice that offended me.’’
Other witnesses to the incident were Thomas Albitz and
Robert Kent.9 Albitz did not hear all of the Matla/Augustine
conversation, and only recalls hearing Matla saying ‘‘smile’’
to Augustine and Augustine replying he did not want to
smile, did not like Matla, and just wanted to be left alone
so he could do his job. Albitz’ testimony is inconsistent with
what he allegedly told Department Supervisor Milton Berger,
on or about June 1,10 i.e., he only heard Augustine saying
he did not like Matla and wanted Matla to leave him alone,
and Matla saying Augustine had a bad attitude.
Kent is a former president and vice president of the Union.
His testimonial demeanor was one of resentment and reluc-
tance, and his general attitude regarding the incident in ques-
tion seemed to be summed up in his stated position that, ‘‘It
was none of my business.’’ He testified that the only thing
he heard was Augustine telling Matla he did not like him and
Matla should get away from him and leave him alone. Ac-
cording to Milton Berger, Kent told him that Matla did not
leave Augustine alone, and stated that Augustine was not
threatening Matla. Kent testified that he told Berger he heard
no abusive language. Kent denies Berger’s testimony about
their conversation. I do not credit Kent.
According to Berger, when he arrived at the scene of the
Matla/Augustine altercation, Augustine was excited and
shouting that Matla was harassing him, had no business
there, and Augustine did not want to talk to him but wanted
Berger to get Matla the hell out of there. Augustine calmed
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Bernard did not testify.
12 Berger’s contemporaneous internal memorandum which was not chal-
lenged for accuracy supports his testimony.
13 There is no important difference between the testimony of Hanley and
Berger and I find their testimony complementary rather than contradictory.
14 Some examples of evasiveness follow:
Q. In working time in the plant in the presence of employees is it ac-
ceptable for a unit member of [sic] curse out a supervisor?
A. Define curse out.
Q. Using the words such and Your Honor I apologize for filling the
record with these words. I am not comfortable doing it, but I have to.
Using such words as fucking son of a bitch.
A. Again it would depend on the circumstanes. You might be talking
about a job or trouble with a machine. I have heard both supervisors and
bargaining unit people use that type language on a regular basis.
. . . .
Q. So those words are not used by a unit member to a supervisor?
A. If they are, they are done in poor taste.
Q. And in fact they are prohibited by rules aren’t they?
A. It would depend on how you define the rule.
down after Berger told him Matla had a right to be there and
would not be removed.
Later that day Berger met with Matla, whom Berger de-
scribes as confused and disoriented, and reports that Matla
gave him no details of the confrontation with Augustine, but
merely kept repeating that he could not believe what had
happened. Berger further testified that he met with Matla the
following morning and was then told that Augustine had
called him the names related by Matla hereinabove. Matla
confirms that he met with Berger within the half hour after
he left Augustine, but did not then tell Berger what Augus-
tine had said. Matla explains that he did not then relay the
words Augustine used because he was humiliated and embar-
rassed that the words had been said before two or three per-
sons, and he did not want those words to be further
diseminated throughout the plant or to hear other people call-
ing him a ‘‘fllg asshole.’’ He agrees with Berger that it
was the morning of May 26 when he first reported what Au-
gustine had said. On May 26 Matla gave Berger the names
of Albitz, Kent, and Mike Bernard as witnesses to his con-
versation with Augustine.
Berger testified that he decided to take action against Au-
gustine on May 26 because he had no reason to doubt Matla
and because when he arrived at the scene on May 25 the
conditons were ‘‘quite violent’’ and Augustine was ‘‘very
excited.’’ Accordingly, he met with Matla, Augustine, and
Keith Rader, union shop committee member, that afternoon.
I have considered the testimony of the four participants, not-
ing there is considerable agreement generally as to what took
place, and conclude that the following account based on
credited portions of their testimony is a fair synopsis of what
occurred: Berger opened the meeting by saying he could not
tolerate Augustine’s conduct the previous day. He presented
Augustine with the written warning and asked him what took
place. Rader asked what the alleged disrespect was. Berger
merely replied ‘‘profanities.’’ Augustine said he had wit-
nesses to the contrary. Augustine was not told what Matla
claimed he had said.
Augustine filed a written grievance on May 31, and re-
quested the company furnish details of the alleged infraction
and names and summaries of statements of witnesses thereto.
Berger responded by letter of June 1 wherein he related the
words of Augustine as reported by Matla. As noted above,
Berger interviewed Albitz and Kent on June 1. He also inter-
viewed Mike Bernard who said he had heard everything, and
asked why Berger did not keep Matla out of there because
he was harassing.11 Berger explains he could have retracted
the warning to Augustine if he found the facts were different
than he thought. Albitz and Kent had been previously inter-
viewed by Augustine who testified he had talked to them im-
mediately after Matla and Berger left on May 25 and both
took notes of their observations because he felt Matla had
provoked the incident and ‘‘something seemed funny’’ about
Berger and Matla going into the office.
General Counsel introduced evidence that Robert Habley
and Keith Hartzell had used profanity toward supervisors
with no discipline therefor. Hartzell testified that, after Au-
gustine showed him his name in the list of employees Hursey
sent Augustine on March 31, 1989, as those the company
had interviewed concerning Rissmiller’s forklift driving his-
tory, he and Augustine went to Berger where he opened the
conversation with ‘‘what the fll is my name doing on this
list,’’ and after some response by Berger, said he would
probably sue Berger’s ‘‘fllg ass.’’ Berger’s testimony
substantially corroborates Hartzell to this point. This incident
occurred on April 26. Later that day Berger summoned
Hartzell to the office. Berger credibly testified that he told
Hartzell he was being reprimanded for his behlavior and he
would be suspended for any repetition of it. Testimony to the
contrary is not, credited. Berger was totally believable on
this score.12 Hartzell as not. I specifically find Hartzell was
not told this was not a reprimand.
Hanley’s situation was somewhat different.13 On or about
November 8, 1989, Berger remonstrated with him concerning
his work performance. Both were a bit heated. Finally, Han-
ley angrily said, ‘‘if you want to write me the f—k up go
ahead and write me up, and I am sick of your fllg sllt,
Berger.’’ Berger then took Hanley and the shop steward into
his office. They talked calmly about the problem and solved
it. Berger assured Hanley he would not be fired or dis-
ciplined, and the conference ended amicably.
Discussion
Taking first things first, I credit Matla’s version of the
May 25 conflict with Augustine which had the ring-of-truth.
Matla impressed me as a mild-mannered person genuinely
distraught as a result of Augustine’s epithets. Augustine is
clearly a more aggressive individual given to caustic remarks
and certainly without fear of Respondent, as evidenced by
his February 6, 1989 letter to Kane, and the Union’s news-
letter of June 11, 1989, authored by him and referring to
‘‘Lamar Hartlines’ sickening propaganda . . . the
companyies lies . . . company actions such as stealing pen-
sion money . . . screwing injured workers out of medical
benefits . . . Lamar Hartline and his puppet Jeff Hursey,’’
and similar characterizations. Augustine obviously is not
bashful in dealing with the Respondent nor does he appear
to be in any particular fear of reprisals. He is a forceful per-
son who impressed me generally as one who would not suf-
fer the slightest rebuke to go unanswered. His tendency to
interpret or pretend to interpret innocent remarks as personal
attacks is apparent in his testimony that he detected antag-
onism and cause for taking offense in Matla’s innocuous
comments. Moreover, he was evasive on cross-examina-
tion.14 What happened, I believe, is that, after he had com-
449BOYERTOWN PACKAGING CORP.
Q. And in fact they are prohibited by rules aren’t they?
A. It would depend on how you define the rules.
Q. Okay. Directing your attention Mr. Augustine to what has already
been received in evidence as Joint Exhibit 3. If you would kindly turn
to item number 25. It is only a sentence and read it.
A. ‘‘Disrespectful conduct including abusive or threatening language
towards management, other employees or visitors.’’
Q. You would certainly agree with me that referring to a supervisor
as a fucking son of a bitch would be a violation of that rule wouldn’t
you?
A. Could be yes.
Q. You are not sure?
A. Well when you ask me that I have heard other supervisors refer to
bargaining unit people that way and people refer to supervisors that way
in the course of talking and not meaning anything serious about it
Q. Is is acceptable for you to refer to a member of management as
a fucking son of a bitch?
A. Probably not.
15 See, e.g., Klate Holt Co., 161 NLRB 1606, 1612 (1966); P. G. Berland
Paint City, Inc., 199 NLRB 9276 (1972); Stoutco, Inc., 218 NLRB 645, 651
(1975).
16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
pleted his tirade against Matla, Augustine, who is a quick-
witted individual, bethought himself to attempt to deflect
possible adverse reaction by Respondent to his comments by
going on the attack and claiming harassment. There is no
evidence Matla ever harassed anybody before this incident,
nor is there any reason shown why Augustine should be dis-
enchanted with him. Augustine’s own version of what was
said does not support his claim of harassment. He was not
believable and is not to be credited on this episode. The at-
tempted corroboration by Albitz and Kent fails because I do
not credit Kent and I conclude Albitz, caught between the
union president and Respondent’s management, temporized
with a bowdlerized version of what he heard, which he con-
ceded was only part of the conversation.
The treatment of Hartzell and Hanley after they had di-
rected profanity toward a supervisor does not prove disparate
treatment of Augustine. Hartzel was warned he would be
suspended if he repeated his conduct. Hanley’s brief exas-
perated outburst resulted from a heated disagreement with
Berger over Hanley’s work and did not rise to the level of
the unprovoked attack leveled by Augustine on the
unoffending Matla. Moreover, Hanley did thereafter calm
down and work together with Berger to an amicable solution
of their differences. There is no evidence that Augustine has
ever made any effort to restore at least civil relations with
Matla.
The record is clear that Respondent resented Augustine’s
protected activity described hereinabove, and I have found
the May 1 warning was discriminatorily motivated. Further,
I have no doubt Respondent would, given the chance, be de-
lighted to rid itself of this vigorous union leader. Accord-
ingly, I find General Counsel has made out a prima facie
case a motivating factor for the decision to issue the May 6,
1989 warning was Augustine’s protected activity. Neverthe-
less, his conduct on May 25, 1989, did run afoul of company
rule 25 prohibiting, among other things, abusive or threat-
ening language toward management, and was sufficiently se-
rious to merit the warning he received. I am persuaded Au-
gustine would have received a warning absent any union or
charge filing activity. It is well settled that when an em-
ployer is presented with a bona fide reason to effect dis-
cipline it would have exercised in the absence of protected
activities it may do so even if it was looking for an excuse
to retaliate against an employee because of his protected ac-
tivities.15 This is what happened here, and I therefore con-
clude and find the May 26, 1989 warning did not violate the
Act.
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 meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing to timely comply with the Union’s re-
quest for the names of all witnesses to the work performance
for which Helen Rissmiller received discipline.
4. Respondent violated Section 8(a)(4), (3), and (1) of the
Act by issuing a warning to Terry J. Augustine on May 11,
1989, because he engaged in protected union activity and
filed charges before the Board.
5. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not commit any other unfair labor prac-
tices alleged in the complaint.
THE REMEDY
In addition to the usual cease-and-desist and notice posting
requirements, Respondent will be required to furnish the
Union, on its request, the names of witnesses to matters rel-
evant and necessary to the Union’s functioning as the collec-
tive-bargaining representative of Respondent’s employees in
the processing of grievances. Respondent will also be re-
quired to withdraw the warning issued to Terry J. Augustine
on May 1, 1989, and to expunge from its files any reference
of this warning, and to notify Terry J. Augustine in writing
this has been done and that evidence of this unlawful action
will not be used as a basis for future personnel actions
against him.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Boyertown Packing Corporation,
Boyertown, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing to comply in a timely and adequate manner
with the Union’s request for the names of all witnesses to
incidents for which employees have been disciplined.
(b) Discouraging membership in or activities on behalf of
the Union, or any other labor organization, by issuing warn-
ings to employees or otherwise discriminating in any manner
in respect to their tenure of employment or any term or con-
dition thereof.
(c) Issuing warnings to employees because they have filed
charges or given testimony under the Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(a) On request, in a timely and adequate manner furnish
the Union with the names of all witnesses to incidents for
which employees have been disciplined.
(b) Withdraw the May 1, 1989, warning issued to Terry
J. Augustine.
(c) Expunge from its files any reference to the aforesaid
warning issued to Terry J. Augustine, and notify him in writ-
ing this has been done and that evidence of this unlawful ac-
tion will not be used as a basis for future personnel action
against him.
(d) Post at its Boyertown, Pennsylvania, offices and facili-
ties copies of the attached notice marked ‘‘Appendix.’’17
Copies of said notice, on forms provided by the Regional Di-
rector for Region 4, after being signed by Respondent’s au-
thorized agent, shall be posted immediately on receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that this notice is not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has been
taken to comply.
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 National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT issue warnings to our employees, or other-
wise discriminate against them in any manner with respect
their tenure of employment or any term or condition of em-
ployment because they support Graphic Communications
Union, Local 765-S, Graphic Communications International
Union, AFL–CIO, or any other labor organization, nor will
we issue warnings to or otherwise discriminate against our
employees because they file charges or give testimony under
the National Labor Relations Act.
WE WILL NOT fail to comply in a timely and adequate
mannner with the above-named Union’s reqeust for the
names of all the witnesses to incidents for which employees
have been disciplined.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed by Section 7 of the Act.
WE WILL withdraw the May 1, 1989 warning issued to
Terry J. Augustine, and remove from our files any reference
to that warning, and notify Terry J. Augustine in writing that
this has been done and that evidence of this unlawful action
will not be used as a basis for future personnel actions
against him.
WE WILL, on request, in a timely and adequate manner
furnish the above-named union with the names of all the wit-
nesses to incidents for which employees have been dis-
ciplined.
BOYERTOWN PACKAGING COMPANY