Documation, Incorporated

National Labor Relations Board - Board Decisions

Aug 26, 1982

263 N.L.R.B. 706 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Documation, Incorporated and James Phillip Cleve-
land and International Association of Machin-
ists and Aerospace Workers, AFL-CIO. Cases
12-CA-8800-2, 12-CA-8935, 12-CA-8969,
12-CA-9010, 12-CA-9044(1), 12-CA-9044(2),
and 12-CA-9148
August 26, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On October 19, 1981, Administrative Law Judge
Henry L. Jalette issued the attached Decision in
this proceeding. Thereafter, Respondent' and the
General Counsel filed exceptions and supporting
briefs.
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, 2 and conclusions3 of the Administrative Law
I Respondent also filed motions to strike the General Counsel's excep-
tions and brief in support thereof on the ground that they failed to fully
comply with certain of the Board's Rules and Regulations. These motions
are hereby denied as lacking in merit.
Respondent also filed a request for oral argument. This request is
hereby denied as the record, the exceptions, and the briefs adequately
present the issues and the positions of the parties.
z Respondent and the General Counsel have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, 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.
3 The Administrative Law Judge found that Respondent applied its no-
solicitation rule in a manner which was overly broad, and thus violated
Sec. 8(a)(1) of the Act. In so finding, he relied on Essex International,
Inc., 211 NLRB 749 (1974), and, noting that TR. W Bearings Division, a
Division of T.R. W. Inc., 257 NLRB 442 (1981), had not issued at the time
of the hearing, found it unnecessary to apply that decision in this case.
While we agree that Respondent's application of its rule was unlawful
under Essex, we disavow any implication in the Administrative Law
Judge's Decision that, because TR. W was not issued until after the close
of the hearing, he would have been precluded from applying it had the
facts of this case called for it. To the contrary, it is the Board's estab-
lished policy that, following the pronouncement of a new rule of law, it
should be applied retroactively; that is, to the case in which it arises and
to all pending cases. Blackman-Uhler Chemical Division-Synalloy Corpo-
ration, 239 NLRB 637 (1978).
Chairman Van de Water and Member Hunter note that, while they
agree with the rule of retroactivity set forth in Blackman-Uhler, they find
it unnecessary to pass on the Board's holding in TR. W since, both as
interpreted by Respondent and as explained to the employees, Respond-
ent's no-solicitation rule applied to breaktime and was thus overly broad
under any view of the applicable law.
No exceptions were filed to the Administrative Law Judge's dismissal
of the allegation that Respondent violated the Act by identifying employ-
ees Ingersoll and Gibbs in a memo to employees as having been the only
employees who attended a Board representation hearing.
In agreeing with the Administrative Law Judge that the demotion of
employee James Cleveland was not unlawful, we disavow his statement
263 NLRB No. 52
Judge and to adopt his recommended Order, as
modified herein.4
The Administrative Law Judge found that em-
ployees Richard Kise and David Thompkins were
discriminatorily selected for inclusion in an other-
wise lawful economic layoff in violation of Section
8(a)(3) and (1) of the Act. In so doing, he found
that the General Counsel presented a prima facie
case based on a showing of animus and the fact
that these employees were senior to several others
in their department who were retained. Contrary
to the Administrative Law Judge, we find that the
General Counsel has not established a prima facie
case with respect to Kise and Thompkins. Thus,
Respondent's officials testified without contradic-
tion that Respondent has not and does not utilize
seniority as a basis for selecting employees for
layoff. Accordingly, we conclude that Respondent
was under no obligation to do so here and its fail-
ure to do so cannot be used as evidence of discrim-
inatory motive. Moreover, the Administrative Law
Judge noted that Respondent presented evidence of
specific instances in which Kise was disruptive,
leading to his low rating for purposes of retention
or selection for layoff, and noted that Thompkins'
job performance may have had deficiencies. Al-
though the Administrative Law Judge found these
factors of little significance, we note that there is
no evidence of job deficiencies with respect to any
employee in the department who was retained.
Based on the foregoing, we find the evidence here
insufficient to establish that the selection of Kise
and Thompkins for layoff violated the Act, and we
shall amend the Administrative Law Judge's Con-
clusions of Law and recommended Order accord-
ingly.
that it is questionable whether the General Colnsel established a prima
facie case by presenting evidence of Respondent's animus. union activity
on Cleveland's part, and the timing cf the demotion Although we find
that the General Counsel has established a prima facie showing of a viola-
tion, we nevertheless adopt the Administrative Law Judge's dismissal of
this portion of the complaint since we conclude, based on his additional
findings, that Respondent has rebutted the G(neral Counsel's showing.
The Administrative Law Judge found, and we agree, that employee
Craig Redman was discharged because of his union activities in violation
of Sec. 8(aX3) and (I) of the Act, and that Respondent's asserted defense,
that Redman was discharged for insubordination when he made a remark
to a fellow employee which was insulting to the Employer, was pretex-
tual. Accordingly, we find it unnecessary to pass on the Administrative
Law Judge's alternative rationale that the discharge was unlawful be-
cause even if Redman's remark was the motivating factor in the dis-
charge, the remark was protected
4 In his recommended Order, the Administrative L aw Judge required
Respondent to remove from the personnel files of Cecelia Simnmons,
David Casto, and Jimmy Gibbs the "significant incident reports" issued
to them because of their union activities. We shall modify the recom-
mended Order to require Respondent also to expunge from its files any
reference to Vicki Ingersoll's unlawful poor evaluation or the layoff
which resulted from it. Further, in accordance with our decision in Ster-
ling Sugars Inc., 261 NLRB 472 (1982), we shall order the expunction
from Respondent's files of any reference to the unlawful discharges of
Cecelia Simmons, Craig Redman, and David Casto.
706
DOCUMATION, INCORPORATED
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4:
"4. By discharging Cecelia Simmons, David
Casto, and Craig Redman, by assigning Vicki In-
gersoll to less desirable work, limiting the amount
of her raise, and laying her off, and by taking these
actions because of the union activities of the affect-
ed employees, Respondent has engaged in, and is
engaging in, unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the Act."
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,
Documation, Incorporated, Palm Bay, Florida, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended order,
as so modified:
1. Substitute the following for paragraph 2(e):
"(e) Rescind the unlawful significant incident re-
ports issued to Cecelia Simmons, David Casto, and
Jimmy Gibbs, and expunge from its files any refer-
ence to these reports, to Vicki Ingersoll's unlawful
poor evaluation or the layoff which resulted from
it, and to the unlawful discharges of Cecelia Sim-
mons, David Casto, and Craig Redman, and notify
all of the above-named employees in writing that
this has been done and that evidence of these un-
lawful reports and unlawful discharges will not be
used as a basis for future personnel actions against
them."
2. Substitute the following for paragraph l(j):
"(j) Discouraging membership in, or activities on
behalf of, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other
labor organization of its employees, by laying off
and/or discharging employees, by limiting the
amount of employees' raises, by assigning employ-
ees to less desirable work because of their activities
on behalf thereof, or otherwise discriminating in
regard to the hire or tenure of employment or any
terms or conditions of employment of its employ-
ees."
3. Substitute the attached notice for that of the
Administrative Law Judge.
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 parties had the oppor-
tunity to present evidence it has been found that
we violated the National Labor Relations Act, as
amended, and we have been ordered to post this
notice.
WE WILL NOT question employees about
their union activities.
WE WILL NOT engage in surveillance of em-
ployees by following them on rest breaks.
WE WILL NOT create the impression that we
are keeping employees' union activities under
surveillance by telling them we know how
many of them attended a union meeting.
WE WILL NOT solicit employee complaints
and grievances and imply that we will remedy
them in order to induce employees to with-
draw their support from International Associ-
ation of Machinists and Aerospace Workers,
AFL-CIO.
WE WII.L NOT prohibit employees from talk-
ing to other employees with whom they have
no working relationship.
WE WILL NOT threaten to discharge employ-
ees for engaging in union activities.
WE WILL NOT maintain or enforce a rule
which prohibits union solicitation and distribu-
tion of union literature during break or rest pe-
riods or periods when employees are privi-
leged to stop working.
WE WILI. NOT enforce any rule against so-
licitation and distribution of literature in a dis-
parate manner against employees soliciting on
behalf of the Union.
WE WILL NOT issue significant incident re-
ports to employees for engaging in union ac-
tivities.
WE WILL NOT discharge employees, nor lay
off employees, nor transfer employees to less
desirable work, nor limit the amount of em-
ployees' raises because of their activities on
behalf of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the National Labor Rela-
tions Act.
WE WILL rescind the unlawful significant in-
cident reports issued to Cecelia Simmons,
David Casto, and Jimmy Gibbs, and expunge
707
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from our files any reference to these reports,
to Vicki Ingersoll's unlawful poor evaluation
or the layoff which resulted from it, and to the
unlawful discharges of Cecelia Simmons,
David Casto, and Craig Redman, and notify
all of the above-named employees in writing
that this has been done and that evidence of
these unlawful reports, the unlawful poor eval-
uation and resulting layoff, and the unlawful
discharges will not be used as a basis for future
personnel actions against them.
WE WILL offer Cecelia Simmons, David
Casto, Craig Redman, and Vicki Ingersoll im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to
their seniority or other rights and privileges,
and WE Wlll make them whole for any loss of
pay they may have suffered by reason of their
unlawful discharge or layoff, with interest.
WE WILL rate Vicki Ingersoll's job perform-
ance for the 6-month period preceding April
1980 in a manner, and under circumstances,
free of unlawful considerations of union mem-
bership or activities, and WE WILL make her
whole for any loss of pay she may have suf-
fered by reason of the unlawful rating of April
3, 1980, with interest.
WE WILL assign Vicki Ingersoll to the
duties she was performing on or before Octo-
ber 18, 1979, and WE WILL make her whole
for any loss of pay she may have suffered by
reason of her unlawful transfer, with interest.
DOCUMATION, INCORPORATED
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This
consolidated proceeding involves allegations that the
above-named Respondent violated Section 8(aX1), (3),
and (4) of the Act. The proceeding is based on the
charges appearing in the caption above, pursuant to
which complaints and orders consolidating cases were
issued in due course.' On March 17-21, March 31, April
i, and July 15, 1980, hearing was held in Melbourne,
Florida.
The charge in Case 12-CA-8800-2 was filed on October 4, 1979, and
complaint issued on November 8, 1979; the charges in Cases 12-CA-8935
and 12-CA-8969 were filed on December 26, 1979, and January 16, 1980,
respectively, and a consolidated complaint issued on February 6, 1980,
the charge in Case 12-CA-9010 was filed February 6, 1980, and amended
on March 4, 1980;, the charges in Cases 12-CA-9044-1 and 12-CA-9044-
2 were filed on February 25 and 27, 1980, respectively, and consolidated
with the prior cases by order on March 12, 1980. After hearing closed on
these charges, a charge was filed in Case 12-CA-9148 on April 25, 1980,
and complaint issued on May 23, 1980. On June 29, 1980, 1 granted the
General Counsel's motion to consolidate and reopen the hearing.
FINDINGS OF FACT
I. THE FACTUAL SETTING
Respondent is engaged in the manufacture and sale of
computer hardware in Melbourne, Florida, employing
between 1,500 and 1,700 employees in March 1980, with
1,000 to 1,100 at its facility in Palm Bay, Florida, the fa-
cility where the unfair labor practices allegedly oc-
curred. 2 In August 1979, some employees contacted a
representative of the above-captioned Union and thereaf-
ter an organizational campaign was instituted.3 The com-
plaints allege that Respondent interfered with the cam-
paign in a variety of ways.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The No-Solicitation/No-Distribution Rule
On or about August 27, Respondent posted the follow-
ing rule:
EMPLOYEES ARE NOT ALLOWED TO
ENGAGE IN SOLICITATION OF ANY KIND
FOR ANY PURPOSE DURING WORKING
TIME.
EMPLOYEES ARE NOT ALLOWED TO
DISTRIBUTE LITERATURE OF ANY KIND
FOR ANY PURPOSE DURING WORKING
TIME OR IN WORK AREAS.
Violation of these rules will be cause for disci-
plinary action up to and including discharge.
The rule is, on its face, unlawful in light of the Board's
Decision in T.R. W Bearings Division, a Division of
T.R.W. Inc., 257 NLRB 442, decided July 31, 1981.
However, at the time of the hearing, the rule of law was
that which had been expressed in Essex International,
Inc., 211 NLRB 749 (1974), according to which the rule
would be deemed lawful on its face inasmuch as the pro-
hibitions contained therein against solicitation and distri-
bution were limited to working time. Nevertheless, the
General Counsel contended that the rule was unlawful
because of the timing of its promulgation, the enforce-
ment of the rule against employees on breaktime, and the
disparate enforcement against union solicitation. I find
merit in the General Counsel's contention and it is, there-
fore, not necessary to apply here the decision in TR. W
Bearings
Respondent contends that the rule is not new, but was
rather a reiteration of an existing rule, a reiteration ne-
cessitated because of an upsurge in nonwork activity
during working time. It contends further that, even if
new, the promulgation of a valid rule upon the discovery
of union activity during worktime is not unlawful.
In my judgment, it is immaterial whether the rule of
August 27, 1979, was new or the reiteration of a rule
previously promulgated, because the record supports a
finding that the rule, as interpreted and enforced by Re-
2 Jurisdiction is not in issue. Respondent admits, and I find, that it
meets the Board's $50,000 direct outflow standard for the assertion of ju-
risdiction.
I Unless otherwise indicated, all dates hereinafter are in 1979.
708
DOCUMATION, INCORPORATED
spondent, was impermissibly broad. In sustaining the va-
lidity of a rule prohibiting solicitation and distribution
during "work time" in Essex International, Inc., supra,
the Board indicated clearly that such a rule was never-
theless invalid where it was established, in the context of
a particular case, that the rule was communicated or ap-
plied in such a way as to convey an intent to restrict or
prohibit solicitation during breaktime or other periods
when employees were not actively at work.
In the instant case, the record indicates that the rule
applied to breaktime. Thus, Respondent's vice president
in charge of manufacturing, James Bloom, testified that,
by working time, Respondent meant during scheduled
working hours, which he further explained to mean from
the start of the shift to lunchtime and the end of lunch-
time to quitting time. Moreover, this was the message
conveyed to employees. As Bloom testified, employees
were told that Respondent could not afford interruptions
during scheduled worktimes and were told on a number
of occasions that, during lunchtime, and before and after
scheduled work, they could engage in whatever activity
they wanted. By clear implication, then, employees were
told solicitation during breaktimes was prohibited.
Respondent would perhaps argue, however, that its
rule was nevertheless valid because company rules did
not provide for breaktimes. That is true only in the sense
that company rules did not provide for formal or speci-
fied breaktimes. However, it is undisputed that it was
company policy to permit employees to take breaks at
their discretion.4 At such times, employees were not ac-
tively working, nor expected to be, and under Board
precedent they were free to engage in union solicitation
absent a showing of business necessity. 5 Respondent
made no such showing. It is true that Respondent of-
fered opinion testimony as to the necessity for a broad
no-solicitation rule, but it is not my understanding of the
law that such opinion testimony is probative of business
necessity. The testimony of Bloom and supervisors that
coincident with the start of organizational activity they
observed employees away from their work areas and cir-
culating around talking to other employees may support
a finding of business necessity. Such activity would tend
to interfere with productivity. But, all breaktimes can be
said to interfere with productivity to a degree and Re-
spondent does not contend that it abolished its policy of
discretionary breaks. In effect, Respondent's contention
must be that employees who were engaged in union so-
licitation were abusing breaks. But Respondent did not
limit its rule to abuses. It promulgated-reiterated if you
will-a rule that applied to discretionary breaks. In the
circumstances, the rule must be held to be impermissibly
broad and violative of Section 8(a)(1) of the Act.
This does not mean that Respondent could not prohib-
it abuses; it means Respondent had the burden of show-
ing in any given instance of solicitation that an abuse of
4 Breaks evidently included having casual conversations. For example,
employee Linda Young, called as a witness for Respondent, when asked
about the practice of employees coming by a machine and having a
casual conversation, testified, "Well, it was done. Not for a very long
time, but it was done." Brenda Wolf, also called as a witness by Re-
spondent, gave similar testimony.
s Daylin. Inc., Discount Division. d/b/a Miller's Discount Dept Stores,
198 NLRB 281 (1972).
privilege was involved. The record supports a finding,
however, that Respondent was not so much concerned
with abuses and loss of production as with impeding the
organizational activity. For example, former employee
John Keith testified that, on August 27, he passed out
cards in his work area while taking a break. An hour
later, he was called to Supervisor Dean Vernier's office
where the no-solicitation/no-distribution rule was read to
him. He was asked if he understood and he said yes, al-
though he had never heard of the rule before. He asked
why the rule was being read to him and Supervisor Ver-
nier told him he understood Keith had been passing out
literature that morning. Keith admitted he had. At the
end of the conversation, Vernier told Keith it was a seri-
ous incident and that Keith could be terminated for it,
that he had thought of writing up a significant incident
report (Respondent's term for a written reprimand), but
he did not think it was necessary.
Keith testified that during the conversation, Director
of Manufacturing Howard Schuneman asked him if he
had any cards on him. Keith said no. Schuneman asked
him who had given him the cards and Keith said he had
found them on a workbench.
It is noteworthy that this incident occurred on the
very day the rule was "reiterated," that no mention was
made by Vernier or Schuneman about breaktimes or in-
terference with production. To the contrary, the inquiry
was directed to finding out if Keith understood the sig-
nificance of the cards. It appears that Keith dissembled
about the nature of the cards and Schuneman deemed it
important to explain to him that if they were signed they
would authorize the Union to act in his behalf.6
On November 19, David Casto was given a reprimand
by Alexander Cuthbertson, manager of quality control,
for violating the no-solicitation rule. Cuthbertson would
not tell him what time of day he was alleged to have
violated the rule nor name the individuals solicited. It
appears, however, that the individual was leadman
Arthur Gilreath who testified that as he was leaving
work, Casto, who was standing at the entrance to the de-
partment, asked him to sign a union card. Gilreath said
no and kept walking. It was for this brief incident that
Casto was reprimanded. 7 Gilreath testified that the work
6 The complaint alleges that Vernier's remarks constituted an unlawful
threat of discharge and Schuneman's questions about the cards constitut-
ed unlawful interrogation. Schuneman denied asking Keith if he had any
cards or who gave them to him. I was not impressed by Schuneman and
I credit Keith. It seems entirely plausible in the context of the conversa-
tion described that Schuneman would have asked Keith if he had any
cards and where he got them. Such questioning in the context of a warn-
ing was clearly unlawful and violative of Sec. 8(aXl) of the Act. As to
Vernier's remarks, they were not denied because of Vernier's unavailabi-
lity. (He was in Ireland at the time of the hearing.) Schuneman did not
expressly deny that Vernier made the remarks attributed to him by Keith
and, in effect, can be said to have admitted them when he testified that
any threat of discharge was in the context of stating the rule which has
been found to be unlawful. I find that Vernier's remarks were violative of
Sec 8(aXl) of the Act.
Respondent also adduced testimony from employees Carol Denton
and Nancy Kracht that they were solicited by Casto as they passed by
his work station. Implicitly at the very least, Respondent regarded such
fleeting conversations as violative of its rule, else it would not have prof-
fered the testimony. In doing so, Respondent demonstrated the true
nature of its concern.
709
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift had started when this happened and Casto was
away from his work station, but it is difficult to under-
stand how Gilbreath knew this to be so since there are
no timeclocks for employees to punch in and out. In any
event, it is noteworthy that Respondent did not accuse
Casto of being away from his work station."
Employee Vicki Ingersoll testified that on February 1,
1980, as she was leaving the restroom she passed em-
ployees Roger Brown and Dave Thompkins. They
spoke, she answered, and without breaking stride she
continued to her work area. As she was doing so, Super-
visor Roger Dabney approached her and told her she
was looking for trouble. She explained about visiting the
restroom and he repeated she was looking for trouble.
She told her she had been standing out front at the bulle-
tin board talking to two people she should not have been
talking to. He told her to return to her work area, keep
her nose clean and stay out of trouble, and not talk to
anybody.
On February 4, Ingersoll met with Dabney's supervi-
sor, Ralph Dorsett, to complain about Dabney. She re-
peated to Dorsett what had happened and Dorsett told
her he understood she had been caught standing up front
at the bulletin board talking to two people who were
outstanding. Ingersoll asked him what he meant and
Dorsett said, "Didn't they have a union T-shirt?" Inger-
soll said yes, but she did not know she should not have
spoken to them. Dorsett told her she was unfit to put
herself in the limelight and that she should stay out of
trouble and not talk to anybody with whom she did not
have a working relationship.
The complaint alleges that in telling Ingersoll not to
talk to employees with whom she had no working rela-
tionship Respondent promulgated an unlawful rule in
that its purpose was to interfere with union activity, and
that Dorsett threatened Ingersoll with reprisals if she
said or did anything in support of the Union. Whether or
not findings to such effect are warranted will be dis-
cussed below, but apart from those allegations the inci-
dent sheds much light on Respondent's purpose in invok-
ing its no-solicitation rule.
At the outset, there is an issue of fact relative to what
Ingersoll was doing that day and what Dabney said to
her. According to Dabney, he did not tell her she was
looking for trouble. All he did was ask her to return to
her work area and she blew up in his face. At that point,
he told her he did not want any trouble. Assuming this
to be the case, Dabney left unexplained why he even
asked Ingersoll to return to her work area. From his
own testimony, he observed Ingersoll talking to two
other employees about 150 feet away and he started to
walk in her direction. He was still 30 feet away when
she started walking towards her work area. Why, then,
did he ask her to return to her work area? It is undisput-
ed that company policy permitted Ingersoll to leave her
work area to go to the restroom and this was what she
had done. Surely, her brief conversation with two other
employees, even as described by Dabney, did not call for
* The complaint alleges that by issuing Casto the reprimand Respond-
ent violated Sec. 8(aXl) of the Act. I agree. As the rule was unlawful, its
enforcement was unlawful absent a showing the reprimand was issued be-
cause of interference with production. No such showing was made.
any admonition. In my judgment, on Dabney's own testi-
mony, his admonition can only be attributed to a belief
that Ingersoll was talking to two other employees about
the Union and an intention to stop such conversations.
In this connection, Dabney's credibility was seriously
undermined by his saying that he did not know Ingersoll
had anything to do with the Union. Only the day before,
Respondent had issued a letter to its employees in which
it referred to Ingersoll as one of those who would at-
tempt to control things if the Union were voted in. In
the circumstances, I cannot credit his version of the inci-
dent, but rather credit Ingersoll's. Her version indicates
clearly that she was admonished not because she was
away from her work area, but because she was talking to
two union adherents.
As to Ingersoll's conversation with Dorsett, there is
really no dispute about the critical part of the conversa-
tion; namely, whether or not Dorsett told her not to talk
to people with whom she had no working relationship.
As Dorsett testified, he told Ingersoll, ". . . don't be out
talking to people that you don't have any business talk-
ing to or that you're not working with." In telling this to
Ingersoll, I find, as alleged in the complaint, that Dorsett
promulgated an unlawful rule for the purpose of interfer-
ing with union activity. As Ingersoll's testimony indi-
cates, uppermost in Dorsett's mind was the identity of
the individuals with whom Ingersoll was seen talking.
Moreover, in telling Ingersoll to stay out of trouble,
Dorsett impliedly threatened her with reprisals if she en-
gaged in union activity.
James Gibbs, an active supporter of the Union, testi-
fied that on February 21, 1980, Supervisor Bruce Evans
gave him a written reprimand for a soliciting incident on
February 19. Evans would not tell him who he solicited.
According to Gibbs' uncontradicted testimony, which I
credit, the only incident he could recall on February 19
was a 30 second conversation with employee Angela Pe-
terson wherein he asked her to sign a card as both were
on their way to lunch.9
For another example, there is the treatment accorded
Cecelia Simmons. On November 29, employee Betty
McKenzie went to get tools near Simmons' work bench
and she asked Simmons about buying a union T-shirt.
Simmons said they were free and she would get one for
her. McKenzie returned to work. Ten minutes later,
McKenzie again went to the toolbox and this time Sim-
mons asked her if she had signed a union card. McKen-
zie said no and Simmons asked her to sign one. McKen-
zie refused. They talked 3 to 5 minutes and McKenzie
testified that she got mad, assertedly because she could
not cut Simmons off. She reported the matter to the
leadman and Simmons was given a written reprimand.
This incident has great significance. In the first place, the
conversation would appear to have been in keeping with
the practice before August 27, 1979, as noted in footnote
9 According to Bloom, Peterson complained of being harasaed, but
there is no evidence to that effect Peterson did not testify. The com-
plaint alleges that the issuance of the written reprimand was unlawful. As
the rule has been found unlawful and there is no showing of any interfer-
ence with production, I find that Respondent violated Sec. 8(aXI) of the
Act by issuing the reprimand.
710
DOCUMATION, INCORPORATED
4 above. Secondly, Simmons was at her work station and
McKenzie was the first to initiate a union-related conver-
sation with her. Despite these circumstances, and no
showing of any adverse effect on efficiency or produc-
tivity, Simmons was reprimanded. McKenzie, who was
not restrained by Simmons into continuing the conversa-
tion and who could have cut her off by simply returning
to her work station, was not reprimanded.
On November 30, before lunch, employee Linda
Young was getting work materials near Simmons' work
area and Simmons engaged her in a conversation of no
more than 5 minutes in which she solicited her to sign a
union card. On December 4, Young had another union-
related conversation with Simmons, at a time when Sim-
mons was on the way from the restroom. This conversa-
tion lasted I or 2 minutes. Young admitted that the con-
versation was not unusual in terms of the prior practice.
Because of these incidents with Young, Simmons was
discharged.
In contrast with the foregoing, there is Respondent's
handling of nonunion-related nonwork activity. For ex-
ample, in November or December, employee Jerry
Hanson was selling tools during working time and Su-
pervisor Evans even assisted him by soliciting five em-
ployees to buy tools. This activity was eventually
stopped, but no one was ever reprimanded.
James Gibbs testified to being solicited to buy Tupper-
ware by employee Carol Denton in November, ordering
glasses, and accepting delivery during worktime.10
Gibbs did not report this to any supervisor, but he testi-
fied that Denton had brought in an armload of Tupper-
ware and that Supervisor Dale McPherson had seen the
bag of glasses he had purchased on his bench. McPher-
son asked what that was and when Gibbs told him,
McPherson said okay. There is no showing Respondent
ever stopped Denton, despite McPherson's apparent
awareness.
Vicki Ingersoll had a similar experience involving the
sale of Tupperware with employee Melanie Heatherton.
In addition, Ingersoll testified that in December she and
other employees were solicited to buy Christmas cards
by employee Sandy Miller during worktime. Miller
denied soliciting during worktime, but I do not credit
her.
There is no direct evidence Respondent was aware of
the activity described by Ingersoll, but its ignorance is in
sharp contrast with its awareness of union activity and
its handling of the incidents, and in my judgment, the
evidence preponderates in favor of a finding of disparate
enforcement of the rule.
In summary, I find on the basis of the record as a
whole that Respondent's no-solicitation/no-distribution
rule was violative of Section 8(aX1) of the Act because it
applied to breaktimes, and because the circumstances
when it was enforced, and its disparate enforcement,
demonstrate that the purpose of the rule was to interfere
10 According to Denton. Gibbs placed his order on lunchtime and she
made delivery during nonwork time. I do not credit Denton whose an-
swera to questions appeared to me to be less than candid. As a matter of
fact, her testimony that she brought Tupperware into the plant and
placed it on her workbench and that some employees would drop their
orders while she was working tends to confirm Gibbs' testimony.
with, restrain, and coerce employees from engaging in
union activity.
B. The Discharge of Cecelia Simmons
As above noted, Simmons was discharged for violating
Respondent's no-solicitation rule. The complaint alleges
that in discharging Simmons for this reason Respondent
violated Section 8(a)(l) and (3) of the Act. I agree. In
Daylin, Inc., supra at 281, the Board stated that ". . . if
any employee is discharged for soliciting in violation of
an unlawful rule, the discharge also is unlawful unless
the employer can establish that the solicitation interfered
with the employees' own work or that of other employ-
ees, and that this rather than violation of the rule was
the reason for the discharge." Respondent made no such
showing here.
The complaint alleges that Respondent also violated
Section 8(a)(1) of the Act by its issuance of a significant
incident report to Simmons on or about November 29,
for the incident described above involving McKenzie. As
the reprimand was for violating the unlawful rule and
there was no showing of interference with production,
its issuance constituted a violation of Section 8(a)(l) of
the Act.
C. Surveillance or Creating the Impression of
Surveillance
The complaint alleges that, from on or about Novem-
ber 8 to December 4, Respondent kept employees under
surveillance. The allegation is based on the testimony of
Cecelia Simmons that, before the beginning of organiza-
tional activity, there had been no restrictions on employ-
ees stopping at her work station and talking, but that
after she had attended her first union meeting on No-
vember 7 it seemed that whenever anyone stopped and
talked to her they would be listened to by supervisors
and told to move. She named Supervisors Stifflemire,
Kirby, Schuneman, and Starr as those who engaged in
such conduct. Simmons testified this occurred on a daily
basis until her discharge. The supervisors in question ex-
plicitly or implicitly denied engaging in surveillance of
Simmons and gave explanations for the times they were
in the vicinity of Simmons' work station. In my judg-
ment, Simmons' testimony is much too general and con-
clusory in nature to support a finding of a violation and I
shall dismiss the allegation of surveillance.
The complaint alleges four instances wherein Respond-
ent created the impression of surveillance of the union
activities of its employees. One instance involved alleged
discriminatee Salvatore Bologna who admittedly was
kept under surveillance by Supervisors Bruce Evans and
Dale McPherson. However, I find that such surveillance
was not related to any union activities of Bologna, but
was directed to determining his times of arrival to and
departure from work. Accordingly, I shall dismiss the al-
legation relative thereto.
Another allegation involves employee James Gibbs,
who made the initial contact with the Union and began
distributing union cards on August 24. Gibbs testified
that, beginning with his activity, Supervisor Gary
Helmer followed him to the restroom on several occa-
711
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions to the point that on one occasion he wagered with
another employee that Helmer would follow him into
the restroom and Helmer did.
On August 29, Gibbs asked Supervisor Chuck Zoller if
he had assigned Helmer to follow him and Zoller re-
plied, "No, I suppose you assigned him to yourself."
Gibbs asked Zoller what he meant and "Are you afraid
I'm going to pass out a union card or something?" Zoller
answered, "Yes, that's the reason." On September 13,
Gibbs told Zoller he would file charges if the Company
did not get Helmer off his back.
Helmer denied that he followed Gibbs to the restroom
and Zoller denied assigning Helmer to do so. Insofar as
having any conversation with Gibbs about it, he testified
that on one occasion as he was walking by Gibbs' ma-
chine Gibbs asked who Zoller was going to have follow
him that day. Zoller testified he answered, ". .. it's your
choice," and continued walking.
I conclude that, as between Gibbs and Helmer and
Zoller, Gibbs is the more deserving of credence. In
Helmer's case, his denial of knowledge that Gibbs was
involved in union activity until after September is simply
unbelievable. On August 23, he had reprimanded Gibbs
for too much talking and being away from his machine
and if he did not know then what was being discussed
the inference is compelling that he learned quickly con-
sidering the fact that on August 27 Respondent repub-
lished its no-solicitation/no-distribution rule. In Zoller's
case, I cannot believe that he would treat as lightly-
joking, he said-as he said he did Gibbs' remark about
being followed.
On the basis of Gibbs' testimony concerning Helmer's
conduct and Zoller's remarks, I find not that Helmer cre-
ated the impression of surveillance, but that he kept
Gibbs under surveillance for the purpose of interfering
with union activity.
The third allegation in this category is based on the
testimony of former employee Criss Sexton that in mid-
December he had a conversation with Zoller in which
Zoller told him to be very careful that "they" were out
to get him and employee Jimmy Gibbs. Sexton asked
Zoller what the problem was and Zoller said, "You and
I both know what the problem is . . . he says, not in
your work .... As far as your work goes, you and Jim
are superstars." Zoller told him he was spending too
much time away from his machine and that when he was
out talking he was talking about the Union. Sexton
denied it, but Zoller said as far as Sexton's supervisor
was concerned that is what he was talking about.
Zoller admitted to a conversation with Sexton which
he testified came about at Sexton's request. Zoller testi-
fied that, shortly before this, Sexton had been reprimand-
ed for being away from his work area and, on this occa-
sion, Sexton expressed the concern that "they" were out
to get him and he wanted to talk to Zoller because
Zoller knew what was going on. Zoller told him it was
not "they," that it was he and he was not out to get him,
that he just wanted Sexton to do his job and stay away
from coercing other employees. He asked him to stay at
his machine. He told Sexton that anytime he was talking
with another employee with whom he did not have a
working relationship he was slowing down production.
Zoller denied telling Sexton that anytime he saw him
talking to other employees he considered him to be talk-
ing about the Union.
I credit Zoller. His testimony was far more detailed
than Sexton's who initially did not even remember the
major part of the conversation and had to have his recol-
lection refreshed. Accordingly, there is no basis for find-
ing that Zoller created the impression of surveillance of
employees' union activities and I shall dismiss paragraph
13 of the complaint.
The fourth allegation in this category is based on a
letter Respondent issued to its employees on January 30,
1980, following a hearing the preceding day on the
Union's petition for an election. This letter stated, inter
alia:
We also believe you should know that, of all the
employees who could have attended the hearing,
only Jimmie Gibbs and Vicki Ingersoll were
present. These are the people, or some of them,
who would attempt to control things if the union
were voted in. Is this what you want? Further, of
all the employees the Union claimed to have as late
as last Sunday (January 27) we were told that be-
tween 16 and 30 people attended the meeting of
that day. This included several paid union organiz-
ers.
The complaint alleges that, by stating that it knew
how many employees attended a union meeting, Re-
spondent created the impression that it was keeping
under surveillance the union activities of its employees.
Respondent contends that a conclusion to such effect is
not warranted because in its letter it indicated to the em-
ployees that it based its knowledge of the number in at-
tendance at the union meeting on its having been told.
In my judgment, this does not overcome the tendency
to coerce employees which inheres in a statement which
discloses such detailed knowledge on the employer's part
about a union meeting. Respondent did not disclose by
whom it was told about the attendance at the union
meeting, and, absent such disclosure, it would be reason-
able for the employees to infer that Respondent had an
informant in their midst and to be restrained and coerced
thereby. I so find.
The complaint also alleges that by revealing the identi-
ty of employees attending a Board meeting, namely,
Jimmie Gibbs and Vicki Ingersoll, Respondent coerced
its employees because they exercised Section 7 rights.
Nowhere in his brief does the General Counsel offer a
rationale for this allegation. It is not even clear who is
alleged to have been coerced. It appears that the intent
of the allegation is that Gibbs and Ingersoll were co-
erced because the General Counsel states, in brief, they
were exposed to unwelcome notoriety. I fail to under-
stand the significance of the statement. As of the date of
the representation hearing, according to the General
Counsel's own assertion, Gibbs and Ingersoll were
openly active on behalf of the Union. How then could
the publication of their attendance at the hearing tend to
coerce them? I find no merit to the allegation.
712
DOCUMATION, INCORPORATED
D. Threats
According to alleged discriminatee David Casto, about
7 p.m. on November 14, 1979, he jokingly asked Super-
visor William Northrup if he had signed a union card yet
and Northrup replied, "Dave, you know better than
that," and "I had better not catch you with any union
cards." Casto rejoined that what he carried or had in his
toolbox was his own business. The complaint alleges that
Northrup's remarks constituted a threat of disciplinary
action. I shall dismiss the allegation.
According to Northrup, who admitted to being asked
by Casto if he had signed a card, he told Casto he knew
better than that, and that "I don't care to discuss it, I
don't care to see cards, and that it wasn't a time or place
for us to be discussing it." He denied threatening Casto
with any disciplinary action if he was ever caught with a
union card. I credit Northrup. I am persuaded that his
remarks were not as described by Casto, whose version
may have been an interpolation of the remarks, rather
than an accurate restatement.
Another allegation that appears to fall in the category
of a threat is based on statements by Bob Poutre, a man-
agement consultant employed by Respondent.
On or about February 8, 1980, Respondent laid off
certain employees. On Tuesday, February 19, 1980, an
article about the layoffs appeared in the newspaper,
Today, a newspaper of general circulation in Brevard
County, Florida. The article stated, inter alia, that the
Labor Board in Tampa had received four complaints
from about a dozen former employees of the Company
who charged that their dismissals were tied to union
leanings and Union Representative G. Ray Cox was
quoted as saying that from the time the organizing cam-
paign had started the company had continuously fired
people for union activity. The article further noted that
none of South Brevard's firms was unionized.
The following day, or shortly thereafter, Poutre held a
meeting with employees at which he spoke about the
layoffs. Poutre testified he told the employees they were
to be congratulated because the layoffs were over and
they still had jobs. Poutre referred to the Today article
and its report of four charges that the company was
going to hearing and he said, inter alia, the article scared
him. He said what scared him most was about the laid-
off employees, because the article said only union people
were laid off (which he said was not true) and the article
said further that none of Brevard's electronic firms was
unionized. He said, ". . . what worries me is that the
people that have been laid off from Documation that go
out to try to find jobs are going to have paranoid person-
nel people out there that are not going to want to hire
them, and I feel very badly for those people." Employ-
ees Harry O'Connor and Roger Brown also testified
about Poutre's remarks. While their versions are some-
what different from Poutre's, I do not deem them to be
significantly different.
The complaint alleges that Respondent violated Sec-
tion 8(aX)(1) of the Act by Poutre's remarks. Again the
General Counsel has articulated no rationale to support
the allegation and the theory of a violation is not self-
evident. The remarks contained no threats of actions by
Respondent against laid-off employees who were active
on behalf of the Union and they would appear to be pro-
tected by Section 8(c).
Employee Gibbs testified that on or about January 25,
1980, Zoller told him that he felt that the Company was
justified in discharging Oreland Johnson, an alleged dis-
criminatee whose discharge is analyzed infra. Zoller said
he understood Johnson had filed charges and that "you'll
probably have more charges to file later in the week be-
cause I want to get another one of your people." Gibbs
asked who and Zoller would not say.
While admitting that he and Gibbs talked about John-
son's discharge, Zoller denied telling him that any other
union supporters were to be fired.
I credit Zoller. Gibbs' testimony relative to this con-
versation was rather sketchy on direct examination. For
example, he did not disclose on direct that it was he who
brought up the subject of Johnson's discharge and not
Zoller. In addition, he admitted that Zoller had told him
at one time or another that the Company felt that if it
discharged one or more other employees either the em-
ployees or the Union might file a charge. It is perhaps
this statement that Gibbs interpolated into that described
above. In any event, I credit Zoller and shall dismiss this
allegation.
According to Gibbs, he had yet another conversation
with Zoller which, if not falling under the category of a
threat, warrants consideration at this point. In this in-
stance, Gibbs testified Zoller told him that the Union's
efforts to gain the right to bargain collectively could
drag out for years and that if the Union won an election
it would be many years before they got a contract be-
cause the Company would bargain in good faith but very
slowly.
Zoller admitted to a conversation with Gibbs in which
he said these things can take years. However, he denied
making any reference to collective bargaining. I credit
Zoller and I shall dismiss the allegation based on Gibbs'
testimony above.
E. Solicitation of Grievances
Paragraph 14 of the consolidated complaint alleges
that on or about January 10, 1980, Respondent, acting
through its agent, Bob Poutre, solicited grievances from
its employees and impliedly promised that Respondent
would correct those grievances. The only testimony ad-
verted to by the General Counsel in his brief relative to
this allegation is that of employee Victoria Ingersoll that
she had several conversations with Poutre most of which
involved, "Why we were interested in the union, what
the problems seemed to be with the company" and that
of employee James Gibbs that right before Christmas
Poutre came to his work area and "He said, 'What's the
problem?' Basically." Gibbs, and apparently another em-
ployee present there, Dave Preevy, told him the compa-
ny didn't pay enough, did not have any fringe benefits,
and employees did not like the way they were being
treated. According to Gibbs, Poutre said he was survey-
ing the shop to more or less find out what the main
problems were, to see what he could do about them; to
see if he could present his case to the Company in such a
way he could do something to help solve these problems.
713
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gibbs asked him what would happen if the Company
agreed to some of the employees' grievances while
Poutre was there, and after he had left, "what would
hold them to it." Poutre said, "Nothing."
The only issue presented by the foregoing is whether
Poutre's conduct constituted unlawful solicitation of
grievances. There is no allegation Poutre engaged in un-
lawful interrogation.
Poutre is a management consultant in employee rela-
tions retained by Respondent in mid-November 1979. He
did not testify as to when he first arrived at Respond-
ent's facility, but according to Gibbs and Ingersoll he
was there in early December and it is clear he was also
there in January. Poutre did not testify about any con-
versations with Ingersoll or any employees other than
Gibbs. As to that, he testified to one conversation with
Gibbs wherein he told Gibbs why he had been retained
by Respondent; namely, to train supervisors on how to
work with people, to find out what the problems were
causing people to want to join the Union, and to report
his findings to management. He testified that he never
asked anyone what the problems were, nor did he solicit
grievances, nor make any promises. He testified he told
Gibbs and other employees that he had no authority to
correct problems. According to Poutre, when Gibbs
asked him what would happen after he left, he replied
that he did not know if anything would happen.
The foregoing poses a difficult question. It is settled
law that the solicitation of grievances by an employer in
the course of an organizational campaign is unlawful if it
is accompanied by promises to remedy the grievances or
is conducted in such a manner as to imply that the griev-
ances will be corrected." I
In this case, there is a question of fact as to whether
Poutre even solicited grievances (or asked employees
what the problems were, which can be said to be the
same thing). According to Poutre, although his purpose,
in part, in being in the plant was to find out what prob-
lems there were to cause people to want to join the
Union, he did not ask the employees because they told
him without his asking them. There is an element of
sophistry in such testimony. It seems rather obvious to
me that when you introduce yourself to employees as a
consultant hired to find out the problems that would
cause them to want a union you are asking them what
those problems are. When employees told Poutre their
problems, they demonstrated clearly that they under-
stood why he was talking to them. In my judgment,
whether one credits the account of Poutre or Gibbs, a
finding is warranted that Poutre solicited grievances. 2
As noted, in order to find the solicitation of grievances
unlawful, it must be accompanied by a promise, express
or implied, that the grievances would be corrected. In
my judgment, Gibbs' account of Poutre's remarks clearly
establish an implied promise of a remedy. I can place no
other construction on such remarks as "to see what he
could do about them; to see if he could present his case
II Reliance Electric Company, Madison Plant Mechanical Drives Divi-
sion, 191 NLRB 44 (1971), enfd. 457 F.2d 503 (6th Cir. 1972).
"I As between Poutre and Gibbs. I credit Gibbs. Poutre's equivocation
about whether he asked employees about their problems did not reflect
favorably on his credibility.
to the company in such a way he could do something to
help solve our problems." Gibbs understood that a prom-
ise was being given, because he wanted to know what
would happen after Poutre left.
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(1) by soliciting grievances from em-
ployees and implying that it would remedy them in
order to dissuade them from supporting or adhering to
the Union.
F. Alleged 8(a)(3) conduct
I. The demotion of James Cleveland
Cleveland was employed in August 1979 and was pro-
moted to leadman in later 1977 or early 1978. He was
employed on the second shift, until June 1979, when the
second shift was abolished and combined with the first
shift. The supervisor of the shift was one Herb Ahlfelder
and there was another leadman on the shift named Wolf.
On August 27, 1979, Cleveland signed a union card.
He testified that he passed out union cards in the latter
part of August and early September and began wearing a
union T-shirt after September 20, 1979.
On September 20, he was told by Ahlfelder that he
was being demoted from the position of leadman because
there was no need for two leadmen on one shift. With
the demotion came a reduction in rate of pay from $6.25
per hour to $5.90 per hour. Ahlfelder said he had tried
to stop the demotion but had been unsuccessful.
The General Counsel contends that Cleveland was de-
moted because of his union activities. I conclude that the
evidence is insufficient to warrant such a finding.
In effect, the General Counsel's proof consists of evi-
dence of animus, Cleveland's union activity, and the
timing of the demotion. It is questionable whether such
evidence amounted to a prima facie case, but, assuming
arguendo, that it did, it was overcome by the evidence
adduced by Respondent as to the reason for Cleveland's
demotion. Thus, Robert Cooper testified that it was he
who made the decision to demote Cleveland. He testified
that in the first or second week of June (which was
before there was any union activity) he told Ahlfelder
that due to the elimination of the second shift Cleveland
should be reclassified. Wolf was to remain as leadman
because he was more experienced and was regarded as a
stronger leadman. (This is undisputed.) However, Ahl-
felder advised Cooper that Wolf was considering leaving
the Company. Because of this possibility and some un-
certainty about the success of a one-shift operation,
Cooper decided to wait a while. The plant had a vaca-
tion shutdown for the last week of June and the first
week of July and Cooper went to Ireland from July 24
to September 7. He testified that on his return he re-
viewed the situation. It appeared that Wolf had decided
not to leave and that the Company's production needs
could be met with a one-shift operation. Accordingly, he
told Ahlfelder to reclassify Cleveland. Cooper testified
that such a reclassification was normal and, in fact, re-
classification had recently occurred in another depart-
ment.
714
DOCUMATION, INCORPORATED
I was not impressed by Cooper, whom I discredited
with regard to the discharge of Craig Redman discussed
infra. Nevertheless, his testimony relative to Cleveland
was uncontradicted and unimpeached in any way. True,
none of his testimony was corroborated either by Ahl-
felder or Wolf, nor were any records introduced to show
that reclassifications and reductions in pay such as Cleve-
land's were customary in Respondent's operation. But
the burden of proof is on the General Counsel who
could have subpoenaed Respondent's records to show
that it was not customary to demote employees and
reduce their pay. Absent some evidence of disparate
treatment, a finding of a violation is not warranted.
2. The discharge of David Casto
Casto was employed by Respondent in September
1976. In November 1979, he was employed as a quality
control inspector on the second shift. He signed a union
card on November 7 and he was active in soliciting
other employees to sign cards. As noted earlier, on No-
vember 19, he was given a written reprimand for the as-
serted violation of the no-solicitation/no-distribution
rule. On November 27, Supervisor Cuthbertson told
Casto that, effective December 3, he was transferred to
the first shift "for an attitude adjustment." Casto asked
him what that meant and Cuthbertson said he did not
know. Casto asked him to find out.
The foreman on the first shift was one Don Johnson.
In February 1979, Casto had been working on the first
shift under Johnson's supervision and he had asked to be
transferred because he thought Johnson was incompe-
tent. For this reason, on December 3, Casto tried to per-
suade Cuthbertson not to transfer him. He told Cuthbert-
son, "I cannot mentally do it," that is, work under John-
son. Cuthbertson insisted on the transfer and Casto quit.
The General Counsel contends that Casto's transfer
was motivated by his union activities and that his quit-
ting was, in law, a constructive discharge. Respondent
contends that the transfer was attributable to the fact
that Casto was disrupting the second shift and for the
purpose of maintaining better supervision over him. Re-
spondent also contends that Casto's asserted reason for
refusing to accept the transfer is insufficient basis for
holding his quitting to be a constructive discharge. I find
no merit to Respondent's defenses.
The assertion that Casto was a disruptive influence on
the second shift is based on testimony of Cuthbertson
who testified that it began when Supervisor Lou Muth
went on sick leave on November 27. Roy Early was ap-
pointed acting supervisor over Casto's objections. Casto
assertedly complained constantly about the first-shift su-
pervisor, Johnson, and first-shift leadman, Larry Hage
and the Boggs brothers who were first-shift inspectors.
Assertedly, Casto was going back and forth checking the
work of the Boggs brothers to see if he could find any-
thing wrong with it. He would recheck inspections and
accuse the Company of passing parts that were not good.
He would do this almost every day. According to Cuth-
bertson, when he told Casto of his transfer for an atti-
tude adjustment, he explained that it was because of his
constant bitching about the day shift. Casto was not sat-
isfied and asked Cuthbertson to get a more specific defi-
nition and Cuthbertson said he would. On December 3,
Cuthbertson tried to persuade Casto not to quit, but
Casto said he was tired of being harassed.
According to Cuthbertson, he spoke to Casto on sev-
eral occasions about his attitude and about reinspecting
the work of others. Casto denied that he was ever
spoken to about reinspecting work of others. He testified
that anytime he made a reinspection it was on instruc-
tions of a supervisor.
As can be seen, Casto's case presents a serious credibil-
ity issue. If, as Casto testified, he did not inspect the
work of others, except on instructions from supervisors,
and if he was not reprimanded, then the asserted reason
for his transfer was false, and if it was false, one must ask
what the true reason was. In light of the timing of the
transfer, shortly after an unlawful reprimand for asserted-
ly violating the no-solicitation rule, the absence of any
evidence as to what incident precipitated the action,
which was taken on Tuesday, and the fact that the trans-
fer would have placed Casto under a supervisor, Re-
spondent knew he could not abide, the inference is war-
ranted that the true reason for the transfer was Casto's
union activities and that the transfer was made in order
to cause him to quit.
I credit Casto because he impressed me very favorably
with his candor and forthrightness. The one area of
doubt was on the subject of his reinspection of the work
of others and I conclude he was deserving of credence
on this issue for a number of reasons. First of all, the evi-
dence of his reinspections was very general. Ccthbertson
never did specify precisely when Casto did so, how he
learned of it, and what he did about it; rather, he made a
general accusation. (Fellow employee Michael Noland's
testimony was much the same and I give it no credence.)
Second, no explanation was ever offered why Casto sud-
denly became disruptive. He had been on the same job
since February 1979, and there is no showing that he
was causing any problems until, if Respondent were be-
lieved, until after Supervisor Muth went on sick leave on
November 27. The explanation that there was a change
of supervisors is no explanation or Casto assertedly caus-
ing trouble with first-shift employees. It is noteworthy
that, according to Casto's undenied testimony, when
Cuthbertson told him of the transfer Supervisor Muth
was present and told Cuthbertson he did not understand,
that he had no problems with Casto. Third, if Casto was
so disruptive, why was he not reprimanded in writing
and given an opportunity to adjust his attitude? Respond-
ent has demonstrated a readiness to reprimand employees
in writing even without investigation where employees
were assertedly violating the no-solicitation rule. Yet, it
would have the trier of fact believe that a matter as seri-
ous as it described occurred without its issuing a written
reprimand. Instead, it would have the trier of fact be-
lieve that it chose to remedy the situation by transferring
an admittedly excellent inspector, in precipitate fashion,
to work under the supervision of a man it knew he could
not work with. This trier of fact cannot believe it.
For the foregoing reasons, I do not credit Respond-
ent's assertions relative to the reasons for transferring
Casto. In particular, I do not credit Cuthbertson that he
715
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprimanded Casto about reinspections. Inasmuch as I
deem Respondent's asserted reasons for the transfer to be
false, I find that he was constructively discharged in vio-
lation of Section 8(a)(1) and (3) of the Act. In making
this finding, I reject Respondent's legal argument that
Casto was not justified in quitting. Respondent had itself
recognized the difficulty Casto had with Supervisor
Johnson and had accommodated him by transferring him
to the second shift in February 1979. In the circum-
stances, not only can Casto's quitting upon being told of
the transfer back to Johnson's supervision be deemed a
constructive discharge, but also the very fact that Re-
spondent chose this means to solve an alleged problem
with Casto indicates its unlawful motive. ' 3
3. The discharge of Oreland Johnson
Oreland Johnson was employed on October 16, 1979.
Shortly thereafter, he signed a union authorization card.
He testified that he attended four or five union meetings
and passed out union cards and handbilled. On Novem-
ber 23, 1979, he began to wear a union T-shirt to work.
On January 7, he was discharged by Supervisor Bruce
Evans, who told him it was because of the quality and
quantity of his production. According to Johnson, Evans
told him he would not have discharged him had it been
up to him. Johnson asked if it was because of his union
activity and Evans repeated two or three times "Just be-
tween you and me, yes."
Johnson operated a "lap" machine which has the func-
tion of grinding small metal parts down to a desired
degree of flatness. Johnson worked evenings, and on the
day shift an employee named Snyder worked the same
machine. A similar machine, smaller in size, was operat-
ed by employees Guiles and Swallich.
The General Counsel contends that the discharge of
Johnson was attributable to his union activities and not
to work deficiencies as asserted by Respondent. In sup-
port of this contention, he relies on Johnson's testimony
concerning Evans' remarks when he terminated Johnson
that "just between you and me, yes" it was because of
union activity. Evans denied making such remarks and I
credit him. I cannot believe that Evans would make such
a remark. Johnson's assertion that Evans repeated the
remark two or three times is just plainly unbelievable.
Nor does it gain any credence when one considers the
evidence relative to Johnson's productivity.
In this connection, the General Counsel asserts that
company records show that Johnson's production was
far greater than that of Snyder. The assertion is not sup-
ported by analysis of the records, however, and the Gen-
eral Counsel does not advert to the testimony relative to
Johnson's scrap rate and the effect of scrap on produc-
tivity. I am persuaded that the testimony of Supervisors
Zoller and Evans in this regard is deserving of credence.
Is One item of evidence offered by the General Counsel relative to
Casto's discharge was testimony from employee James Gibbs that, 2
weeks after Casto quit, Supervisor Chuck Zoller told him it was a shame
Casto got mixed up in the union activity and lost his job, because he was
a good inspector. Zoller admitted such a conversation with Gibbs but
denied reference to Casto's union activities. I see no need to resolve the
issue, because whether or not Zoller made the remark is not relevant to
the issue of Casto's case, inasmuch as Zoller was not shown to have been
involved in Casto's transfer.
In my judgment, the production records, Zoller's and
Evan's testimony, and the fact that at the time of his dis-
charge Johnson was nearing the end of his probationary
period, a time when one can reasonably e-pect an em-
ployer to evaluate an employee, are factors which rebut
any claim of discriminatory motive. Moreover, although
Johnson was active in the Union, it does not appear that
this activity was significantly different from that of
Snyder and Guiles who also wore union T-shirts.
For the foregoing reasons, I shall dismiss the allegation
that Johnson was discharged because of his union activi-
ty.
4. The discharge of Salvatore Bologna
Bologna was employed on January 4, 1979. He was
employed as a utility person, cleaning machines, mop-
ping floors, and the like. Initially, his hours of work
were from 9 a.m. to 3:30 p.m. In February, Bologna re-
quested more hours of work and Manager Zoller agreed
to let him work from 3 a.m. to 3 p.m.
Respondent does not use timeclocks. Employees make
out their own timecards. On January 24, 1980, Bologna
was called into Zoller's office where he was shown a
paper listing 7 days when he had misrepresented the
hours he had worked in the amount of 7.4 hours equal to
$54.76 in wages and he was told he was terminated.
The General Counsel contends that Bologna's dis-
charge was attributable to his union activities and not
any improper claim for hours not worked. The conten-
tion depends entirely on Bologna's credibility. I was not
impressed by Bologna and I do not credit him. The
burden of Bologna's testimony was that, in exchange for
forgoing any shift pay differential, and lunch and coffee
breaks, Zoller agreed he could work less than 12 hours
and still claim 12 hours. Zoller denied making any such
agreement. Such an agreement is clearly fraught with the
possibility of abuse, and I cannot believe Zoller was
party to one. I find, rather, that Bologna was shown to
have recorded hours of work in excess of those actually
worked and the General Counsel has adduced no evi-
dence to support a finding that his discharge was attrib-
utable to his union activities, rather than the incorrect
record of hours. Accordingly, I shall dismiss the allega-
tion that Bologna's discharge was violative of the Act.' 4
5. Craig Redman
Redman was employed in June 1976 and discharged
on February 6, 1980. He was active on behalf of the
Union, signing a union card, passing out union cards, and
wearing a union T-shirt.
On February 6, 1980, fellow employee Craig Wyles
was in the process of collecting his personal tools from
Redman's toolbox because he was being laid off. Redman
asked him what he was doing and Wyles told him he
was being laid off. According to Redman, he told Wyles
if he wanted his job back to take his union T-shirt off,
get down on his hands and knees, and "kiss the Compa-
14 In reaching this conclusion, I have considered the somewhat clan-
destine manner that Bologna was kept under surveillance and I deem that
circumstance insufficient to warrant a different result.
716
DOCUMATION, INCORPORATED
ny's ass," and he would probably get his job back. Pro-
duction Supervisor Dale McPherson had accompanied
Wyles to the toolbox and overheard the remark. Shortly
thereafter, Redman was called to the office and dis-
charged for insubordination.
The General Counsel contends that the incident of
February 6 was used as a pretext by Respondent to dis-
charge Redman because of his union activities. Respond-
ent contends that Redman's remark, made during a com-
panywide layoff in the immediate vicinity of employees
who were being laid off, and in the presence of a super-
visor, was a serious insult to the Company and serious
insubordination justifying his discharge.
In my judgment, Respondent's contentions border on
the frivolous. I have just described above the construc-
tive discharge of David Casto who had openly displayed
contempt for Supervisor Don Johnson under circum-
stances that must have been known to many employees
and were certainly known to Respondent, yet, at Casto's
request, it had transferred him in February 1979, so he
would not have to work with Johnson. In light of its tol-
erance of Casto's attitude, its professed sensitivity in
Redman's case can hardly be credited. The claim that
Redman was guilty of insubordination finds no support
in the record. Redman was neither disobedient nor even
disrespectful. As the record clearly show, Redman was
not addressing McPherson; he was addressing Wyles. As
to the circumstances that the remark was made during a
layoff and was overheard by other employees, there is
no showing whatsoever that this was of any significance.
Respondent's attempt to conjure up a setting filled with
tension and a "very touchy thing" is a fiction unsupport-
ed by any evidence.
In the final analysis, the question presented is Re-
spondent's motive in discharging Redman. As Respond-
ent correctly notes, an employer may discharge an em-
ployee for a good reason, a bad reason, or no reason, and
it is the burden of the General Counsel to establish that
the reason is a prohibited one; namely, union activity.
There are several factors that support the General
Counsel's burden. It is clear that Respondent entertained
animus against the Union from the other findings herein
made. It is also clear that Redman was a union adherent
and it is undisputed that Respondent knew it. t In the
is If Redman is credited, Respondent had expressed its animus against
him because of his union activities by statements of Supervisor McPher-
son. Thus, according to Redman, McPherson had told him that he was
going to get into trouble wearing a union T-shirt and to "take the stupid
thing off while you've got a chance." On one occasion, in McPherson's
ofice, McPherson suggested Redman take the T-shirt off and Redman
said it was too late, to which McPherson added, "You're right. You're
already on the blacklist." According to Redman, on the day of his dis-
charge, on the way to the office, he told McPherson, "I guess it's be-
cause of this union shirt," pulling at the shirt. McPerson said, "Well, I
had warned you about that." The forgoing was essentially denied by
McPherson. He admitted to riding Redman about what he wore, but not
about the T-shirt, and he never told him to take it off and that he was on
the blacklist. Nor did he tell Redman on the day of his discharge that he
had warned him. I credit McPherson. There are too many unexplained
circumstances that tend to discredit Redman. For one thing, he claimed
to have had perhaps 10 conversations with McPherson, yet he remem-
bered but 2. More importantly, according to McPherson's uncontradicted
testimony, he was not even on Redman's shift between September and
mid-January which was when he became second-shift supervisor. In the
circumstances, it is difficult to conceive how he could have had the many
circumstances, if the asserted reason for discharge is
shown to be false, a finding that the true reason is the
employee's union activity is warranted.
The conclusion that Redman was discharged because
of his union activities depends in large part on Manager
Robert Cooper's credibility and I do not deem him to be
credible. His characterization of the situation existing at
the time of Redman's remark defies credulity. As noted
earlier, not one shred of evidence supports his descrip-
tion of the scene as "a very touchy thing." Employees
Nancy Kracht and Alice Rebham who testified on behalf
of Respondent about overhearing Redman gave no indi-
cation that there was any tension whatsoever which
Redman's remarks would have increased.
In addition to this attempt by Cooper to color the situ-
ation, there is the circumstance of the precipitate manner
in which the discharge was effected. Redman had been
employed since June 1979 and was receiving top rate of
pay for his classification, yet he was not offered any op-
portunity to explain his remarks or to retract them. This
was in striking contrast to Cooper's handling of a situa-
tion involving one Goggins about a year earlier. Accord-
ing to Cooper's own description of the incident, this
Goggins had disagreed with the way a particular job was
being done and had gone to his supervisor. He ended in
an argument with his supervisor and called the supervi-
sor an obscene name. Cooper was called and "I came
down and sent the supervisor on his way. I had to try
and settle the situation that was on hand and I asked the
employee or told him that this kind of conduct just
would not be tolerated, you know, and then he proceed-
ed to tell me that there was no way that he could be
fired." Goggins then repeated his obscenity and was dis-
charged. As already noted, Redman, whose conduct was
in no way comparable to Goggins, was not offered any
opportunity to retract his statement.
There is yet another aspect of Goggins' case which
lends support to a finding that Redman's discharge was
unlawfully motivated. Respondent's Exhibit 4 describes
the incident that led to Goggins' discharge. In the back-
ground and comments, it is noted Goggins had a con-
tinuing attitude problem, including the use of heavy abu-
sive language to all he comes in contact with, "his fellow
workers, supervision, management, and the company."
Despite this, his discharge was referred to as follows:
"Although this discipline is severe, Goggins has been
warned as recently as October 1978, and has a docu-
mented record and reputation of similar job attitude
problems." Redman was not shown to have a back-
ground such as Goggins; yet the ultimate discipline of
discharge was not only deemed not to be severe, but it
was also administered precipitately.
In short, in light of Respondent's animus, the false ex-
planation for its handling of Redman's remarks, and the
precipitate manner of his discharge and disparate han-
dling of the situation as compared with Goggins, I find
that the General Counsel has made a prima facie showing
conversations with Redman which Redman claimed to have had. More-
over, other employees wore T-shirts and there is no explanation why
McPherson would have singled out Redman for his remarks. Given these
circumstances, I credit McPherson.
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Redman's discharge was attributable to his union ac-
tivities. I further find that Respondent has not submitted
any evidence to overcome such prima facie case. Ac-
cordingly, I find that Respondent violated Section 8(a)(1)
and (3) of the Act by discharging Redman.
There is an alternative ground for finding Respond-
ent's discharge to be unlawful. According to Respond-
ent, Redman was discharged for his remark. If, in
making that remark, Redman was engaged in protected
activity, his discharge must necessarily be unlawful. Re-
spondent contends that Redman's remarks were caustic
and insulting and served no interests of the Union. I do
not agree. The remarks were clearly related to the
Union's campaign and Redman's perception of the em-
ployees' need for union representation. According to that
perception, toadying up to management was a way to
keep your job. With union representation, that would not
be the case. Accordingly, I find that in making his re-
marks he was engaged in protected activity, and in dis-
charging him for such reason Respondent violated Sec-
tion 8(a)(l) and (3) of the Act.
6. The discrimination against Victoria Ingersoll
Ingersoll was employed in March 1978 and at the
times relevant to the allegations of discrimination against
her was working as a quality control inspector under the
supervision of Robert Dabney.
On October 18, Ingersoll strained her back pushing a
large printer and was absent from work for 3 days.
When she returned to work, she was assigned to inspect-
ing subassemblies in the assembly area only instead of
conducting inspections in the general plant area. After a
few days, she asked Dabney to be permitted to resume
her prior inspection routine, but Dabney refused, telling
her it was for her own safety. Despite Ingersoll's assur-
ance that her doctor had placed no restrictions on her,
Dabney would not change his mind.
On April 3, 1980, Ingersoll received a pay increase of
7 cents an hour. On April 15, 1980, Ingersoll was laid off
for lack of work.
The complaint alleges that Respondent violated the
Act by assigning Ingersoll to less desirable work on Oc-
tober 18, by granting her a raise of only 7 cents per hour
on or about April 3, 1980, and by laying her off on April
15, 1980.
As to Ingersoll's assignment to less desirable work,
two questions are presented: Was the assignment made
because of Ingersoll's union activities and was the work
less desirable. As to the first question, Respondent con-
tends the assignment could not be attributable to Inger-
soll's union activities because Dabney, who made the as-
signment, had no knowledge that Ingersoll was engaged
in union activities. I do not credit Dabney's denial of
knowledge of Ingersoll's union activities. If there is one
thing clear on the record in this case, it is Respondent's
alertness to the union activities of its employees. One
needs only to refer to the discussion earlier relative to
the no-solicitation/no-distribution rule and Respondent's
conduct therein described. When one reviews how
quickly Respondent learned of the organizational activi-
ty, and how quickly it responded to it, it defies credulity
to believe that Dabney would not have known of Inger-
soil's union activities, particularly in her work area. If
there were any doubt it had knowledge, it would be re-
moved by the patently pretextual reason assigned by
Dabney for the change in her work assignment. That
fact alone supports an inference of company knowl-
edge. I '
According to Dabney, he reassigned Ingersoll for her
safety and the Company's protection. He did so not only
because of the injury she sustained on October 18, but
also because of prior accidents. In November 1978, In-
gersoll had injured herself on the stairs, and in or about
December 1978, she had broken her ankle stumbling
over a box. But her injury on October 18 was not an ac-
cident of that type. Ingersoll injured herself when she
undertook to push a large printer. She did not stumble;
she did not trip. Moreover, she did not have to push the
printer as part of her duties. Thus, whatever had hap-
pened with Ingersoll in the past was irrelevant to what
happened on October 18. In the circumstances, I do not
credit Dabney's testimony that he assigned Ingersoll to
the assembly area for safety reasons; rather, I find that
this was a false reason which was asserted to conceal the
real reason; namely, Ingersoll's union activities.
The next question is whether or not the work to
which Ingersoll was assigned was less desirable. Accord-
ing to Ingersoll it was, because in her new assignment
she stayed in one area and inspected cable harnesses and
small parts, work which was far less interesting than the
work in her old assignment in which she inspected subas-
semblies in all work areas. Moreover, she testified with-
out contradiction that she had been working 10 hours
per week overtime on her old job and she received no
overtime on the new one. On the basis of this testimony,
I find that the assignment was to less desirable work and,
as it was attributable to Ingersoll's union activities, I find
that Respondent thereby violated Section 8(a)(1) and (3)
of the Act.
The allegation relative to the raise given Ingersoll on
April 3, 1980, is somewhat unusual in that it is alleged to
be unlawful because it was smaller than the raise given
to employee Melanie Heatherton, another inspector, who
received a pay increase of 42 cents an hour at or about
the same time. It is alleged that the reason for the dispar-
ity is the fact that Ingersoll was a union supporter and
she had testified against Respondent in the initial hearing
before me in these cases whereas Heatherton had testi-
fied on behalf of Respondent.
I find no evidence to support a finding that the
amount of the raise given to Ingersoll was in any way
related to her having given testimony under the Act.
The mere fact that Heatherton received a substantially
larger increase is insufficient to support such a finding,
but, in any event, Respondent adduced evidence explain-
ing why Heatherton received such a substantial increase.
This does not necessarily mean that Ingersoll may not
have been discriminated against in the decision to give
her only a 7 cents per hour raise. Apart from the Heath-
erton comparison, there may be other indicia of a dis-
1' Sam Tanklcsy Trucking, Inc., 198 NLRB 312 (1972).
718
DOCUMATION, INCORPORATED
criminatory motive.17 Thus, to begin with there is the
fact that during much of the rating period, since on or
about October 23, she had been on a job to which she
had been assigned for discriminatory reasons as found
above. There is the fact that since her employment with
Respondent, and prior to her April 1980 evaluation, she
had received three merit increases, one of 5.1 percent,
one of 7.4 percent, and one of 5 percent. The April 1980
increase was of 1.8 percent. Such a disparity, in the con-
text of a discriminatory assignment, is prima facie proof
of discriminatory motive.
To rebut that proof all that appears is the opinion of
Supervisor Dabney that Ingersoll's performance was un-
satisfactory with respect to her attitude, dependability,
and quantity of work. In this connection, Dabney offered
little concrete evidence beyond an instance when it as-
sertedly took Ingersoll all day to perform a reinspection
that should have taken 30 to 45 minutes. According to
Ingersoll, any reinspection assignment she received had
to be performed concurrently with assignments on the
"hot" shelf and this would account for delay. In any
event, granting that Ingersoll's productivity may have
dropped, it is undisputed that at no time during the
rating period was she reprimanded, verbally or in writ-
ing, including when she assertedly took all day to do a
30- to 35-minute assignment. The absence of a reprimand
suggests that any drop in production was of small pro-
portion.
Whether small or 50 percent as Dabney testified, the
cause appears to have been rooted in the discriminatory
assignment itself. As Ingersoll credibly testified, Dabney
asked her what the problem was and she answered she
was bored and would like to return to her original job.
She told him she was not aware she had slackened in
production.
In short, Ingersoll's poor evaluation was the out-
growth of her discriminating assignment and, when one
considers that her performance was not so poor as to jus-
tify reprimands, and that the judgment of her merit was
made by the individual who had initially discriminated
against her, a finding is warranted that the merit rating
was tainted and attributable to her union activities.
The foregoing conclusion relative to Ingersoll's raise is
predictive of the conclusion to be reached regarding the
allegation that her selection for layoff was discriminatori-
ly motivated. The selection was made by Dorsett who,
as Dabney's superior, had participated in the earlier dis-
crimination against Ingersoll. According to Dorsett, on
April 11, 1980, he was told that his supervisor was being
laid off, that of four managers he was the only one not
being laid off, that he was being relieved of certain de-
partments, and that he was to reduce expenses in the re-
mainder of his area of responsibility to the fullest extent
possible consistent with production of a quality product.
Dorsett proceeded to rate the nine hourly rated em-
ployees in his department. The particular area where In-
17 The fact that the General Counsel alleged a violation solely on the
basis of a comparison with Heatherton does not preclude a finding of a
violation on the basis of a different theory where the issue of the amount
of the raise given Ingersoll has been fully litigated. Liberty Nursing
Home% Inc, d/b/a Liberty House Nursing Home of Lynchburg, 245 NLRB
1194 (1979)
gersoll worked included three other employees and Dor-
sett ranked Ingersoll lowest of the four. That same day,
Dorsett advised two other employees (not shown to be
union adherents) and one supervisor that they were
being laid off. Ingersoll was not advised that day because
she was on leave of absence. When she reported to work
on April 15, she was advised she was being laid off.
In rating Ingersoll and the other employees, Dorsett
used an evaluation form which rated employees as excel-
lent, good, acceptable, or unacceptable, relative to six
factors. Of the four employees in her work area, Inger-
soll was the lowest ranked because of her quantity of
work, dependability, adaptability, and attitude. However,
employees had no production quotas and Dorsett's judg-
ment of the quantity of work produced by Ingersoll was
not based on any data. It was based on the assertion that
whenever he was on the floor Ingersoll was looking at
him instead of working!
As to adaptability, the rating form refers to whether a
worker "requires detailed instructions on new tasks and
methods." Dorsett did not specify a single instance when
Ingersoll required detailed instructions. As he stated,
". . she does not work for me directly." It would
appear, therefore, that there was no factual basis for his
rating on his factor. On dependability, Dorsett rated In-
gersoll between good and acceptable, a poor rating.
Again, he had no facts on which to base the rating. The
only justification for the rating was "how clean is
clean?" (On cross-examination, he was asked about In-
gersoll's attendance and intimated that was a factor in
her rating, but no evidence was offered regarding her at-
tendance or that of other employees, and the dependabil-
ity factor as it appears on the evaluation form does not
appear to relate to attendance.) As to attitude, he rated
her marginally acceptable, again with no instances of
conduct reflecting a poor attitude.
In short, if Ingersoll deserved the rating she received
it can only be because Dorsett said so, and not because
there is objective evidence to support it. Given the dem-
onstrated animus and discrimination against Ingersoll
previously described, it hardly seems necessary to say
that Dorsett's rating of Ingersoll cannot be accepted as a
defense to her selection for layoff. His testimony does
not constitute evidence of a legitimate motive; rather, it
amounts to nothing more than a denial of discrimination.
In my judgment, Dorsett was not a credible witness and
his assertions can be given no weight.
For the foregoing reasons, I find that Ingersoll's selec-
tion for layoff was attributable to her union activities and
that Respondent thereby violated Section 8(aX1) and (3)
of the Act. However, I deem the evidence insufficient to
warrant a finding that Ingersoll's layoff was attributable
to her having given testimony under the Act, and I shall
recommend dismissal of the 8(aX4) allegation.
7. The layoffs
On or about February 8, 1980, Respondent laid off em-
ployees Richard Kise, Herb Fernandez, Paul German,
David Thompkins, and Chris Tomlin. It is undisputed
that the layoffs were dictated by economic necessity, but
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is contended that the five named employees were dis-
criminatorily selected because of their union activities.
The contention that the five named employees were
discriminatorily selected is predicated largely on the fact
that the five employees were all known union adher-
ents,18 and they had more seniority than the employees
who were retained. The record does not reflect the se-
niority of all the employees in the material control unit
of which the five employees formed a part, but it does
reflect the seniority of the 12 lowest ranked employees
(G.C. Exh. 22), and Thompkins had more seniority than
the 6 employees on that list who were not laid off;
German had, more seniority than 3 of them; Kise had
more seniority than 5 of them; and Tomlin and Fernan-
dez had more seniority than 2 of them. Moreover, on or
about February 5, the night shift had been eliminated and
five night-shift employees had been transferred to the
first shift. One of these (Kirt Jensen) had been hired as
recently as December 1979 and it appears from Supervi-
sor Robert Hopkins' testimony that three others had
been hired as recently as October 1979. None of these
was known to be a union supporter (none wore a union
T-shirt) and none was laid off.
In my judgment, Respondent's animus against the
Union, including its willingness to violate the Act to pre-
vent the unionization of its plant as shown by the unfair
labor practices herein found, and the facts that of six em-
ployees laid off in this department five were union ad-
herents and employees who were probationary, or had
barely finished their probationary periods, were retained,
are sufficient to support an inference in the cases of Kise
and Thompkin that union activities were a motivating
factor in their selection for discharge, and the burden
was on Respondent to demonstrate that they would have
been selected for layoff even had they not engaged in
union activities.
To meet its burden, Respondent adduced testimony
from its officials that seniority is not a factor in selecting
employees for layoff. In my judgment, this is an insuffi-
cient answer to the charge of discriminatory selection.
Of course, Respondent has the right to select the criteria
it will follow in making layoffs, but seniority is an attri-
bute of employment so commonly considered in making
selections for layoff that where an employer's motive is
at issue it is appropriate to ask why the employer selects
senior employees for layoff instead of junior employees.
Implicitly at least, Respondent acknowledges the validity
of such an approach because it undertook to explain why
the five alleged discriminatees were selected for layoff.
According to Jeffrey Baugher, director of materials
and manufacturing systems, in the first week of January
he told the managers under his supervision to rate their
employees in order of ability, performance, attitude, and
growth, for possible use at a later date in the event of a
layoff. Arnold Rowland, material control manager, then
told Robert Hopkins to rank the employees under his su-
pervision from worst to best. Hopkins did so and he
Is All the laid-off employees except Tomlin testified they had signed
union cards and had worn union T-shirts at work, and Robert Hopkins,
their supervisor, admitted that he had noticed all the laid-off employees
wearing the union T-shirts from time to time. Contrary to Respondent's
assertion in brief, therefore, there is proof of company knowledge.
rated the five alleged discriminatees at the bottom of the
list. He gave the list to Rowland who made a combined
list to include other departments under his supervision.
The list included 12 names, and Rowland had to lay off
6.19 Accordingly, as the five alleged discriminatees were
the lowest rated, they and one Steve Napier were laid
off.
According to Hopkins, he rated the employees on the
basis of four or five criteria: amount of supervision re-
quired, speed, attitude, attendance, and willingness to
work overtime. In Kise's case, he was rated low because
of his attitude and being disruptive. Hopkins gave exam-
ples of specific instances which, in my judgment, were so
minor that it is difficult to believe that they formed a
basis for a selection for layoff in light of the facts that
Kise's conduct was never regarded seriously enough to
warrant a written warning and, more importantly, that
almost contemporaneously with the giving of the low
rating, Kise had been given a 5-percent merit raise. Ac-
cordingly, I conclude that Respondent has not rebutted
the prima facie case established by the circumstances de-
scribed above, and that Kise was selected for layoff be-
cause of his union activities.
In the case of Thompkins, he was rated low assertedly
for being a slow worker and requiring constant supervi-
sion. However, no instances of specific conduct were
given to support the assertion, and the record indicates
no verbal or written warnings having been given to
Thompkins, who had been given a 4-percent merit raise
in November. In light of these facts, while Thompkins
may have had deficiencies, it strains credulity to believe
that his work performance warranted a lower rating for
purposes of retention than probationary employees, and I
conclude that the evidence adduced by Respondent was
insufficient to overcome the inference that Thompkins'
selection for layoff was attributable to his union activi-
ties.
In the cases of Fernandez, German, and Towrlin, there
is insufficient evidence to warrant an inference that
union activities were a motivating factor in their selec-
tion. None of the three had significant tenure with Re-
spondent and from their wage rate appear to have been
among the lowest paid employees and were not shown
to have received any merit increases. In Fernandez' case,
he had been given a significant incident report on Janu-
ary 24, 1980.20 Accordingly, I shall recommend dismiss-
al of the allegation relative to their layoff.
'6 Actually, he had to lay off seven, but one employee, Mike Boring,
had been terminated on January 21, so Rowland felt he needed to lay off
only six.
ao The complaint alleges that the issuance of the significant incident
report was violative of the Act, apparently because it was issued 2 days
after Fernandez first wore a union T-shirt. I find the evidence insufficient
to support a finding of a violation. According to Hopkins, the report was
precipitated by Fernandez' conduct on January 23, in reading a newspa-
per when he should have been working and his slowness in filling a par-
ticular order. Fernandez testified he disagreed with Hopkins' criticism,
but did not specifically refute Hopkins' assertions. Despite my conclusion
that Hopkins was not a credible witness on other matters, I credit him
relative to this issue.
720
DOCUMATION, INCORPORATED
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I,
above, occurring in connection with its operations de-
scribed herein, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent violated Section 8(aXl)
and (3) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the polices of the Act.
As I have found that Respondent discharged Cecelia
Simmons, David Casto, and Craig Redman because of
their union activities, and that it selected Vicki Ingersoll,
Richard Kise, and David Thompkins for layoff because
of their union activities, I shall recommend that it be or-
dered to offer them immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and to make them whole for any loss of earnings they
may have suffered by reason of their unlawful discharge
or layoff by payment to them of a sum of money equal
to that which they normally would have earned as
wages from the date of their discharge or layoff to the
date of the offer of reinstatement, less net earnings, to
which shall be added interest, to be computed in the
manner prescribed in F. W Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).21
As to the unlawful assignment of Vicki Ingersoll, I
shall recommend that she be returned to her former as-
signment and that she be made whole for any loss of
overtime as a result of her unlawful assignment.
As to the discrimination in the amount of her merit in-
crease, there is no specific formula to apply to determine
the amount of the increase she would have received but
for the discrimination against her, and the record affords
no data, apart from Ingersoll's record of increases, on
which to base an appropriate formula. In the circum-
stances, it shall be left to the compliance stage to deter-
mine an appropriate formula.
As to the significant incident reports issued to employ-
ees for violating the unlawful no-solicitation rule, I shall
recommend that Respondent be ordered to expunge
them from the employees' records.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By promulgating and enforcing a rule which, in
effect, prohibited union solicitation and distribution of
union literature during break or rest periods, or periods
XI See, generally, Isis Plumbing & Heating Ca, 138 NLRB 716 (1962).
when employees were privileged to stop work, by en-
forcing the rule in a disparate manner against employees
soliciting on behalf of the Union, by reprimanding em-
ployees and issuing significant incident reports to em-
ployees in the enforcement of the rule, by prohibiting
employees from talking to employees with whom they
have no working relationship, by soliciting employee
grievances and impliedly promising to redress them, by
questioning employees about their union activities, by
threatening employees with discharge because of their
union activities, by keeping employees under surveil-
lance, and by creating the impression of surveillance of
employees' union activities, Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
4. By discharging Cecelia Simmons, David Casto, and
Craig Redman, by assigning Vicki Ingersoll to less desir-
able work, by limiting the amount of her raise, and by
laying her off and laying off Richard Kise and David
Thompkins, because of their union activities, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2 2
The Respondent, Documation, Incorporated, Palm
Bay, Florida, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities
in a manner constituting interference, restraint, and coer-
cion of employees in their exercise of Section 7 rights.
(b) Engaging in surveillance of employees by follow-
ing them on rest breaks.
(c) Creating the impression of surveillance of the union
activities of its employees by telling employees that it
knows how many employees were in attendance at a
union meeting.
(d) Soliciting employee complaints and grievances and
impliedly promising to remedy them to induce employ-
ees to withhold assistance and support from International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization.
(e) Threatening employees with discharge for engag-
ing in union activities.
(f) Issuing significant incident reports to employees for
engaging in union activities.
(g) Prohibiting employees from talking to other em-
ployees with whom they have no working relationship.
(h) Maintaining in effect and enforcing a rule which
prohibits union solicitation and distribution of union lit-
2t In the event no exceptions are filed as provided in Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erature during break or rest periods, or periods when
employees are privileged to stop work.
(i) Enforcing any rule against solicitation and distribu-
tion of literature in a disparate manner against employees
soliciting on behalf of the Union.
(j) Discouraging membership in, or activities on behalf
of International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization of
its employees, by laying off and discharging employees
and by assigning employees to less desirable work, be-
cause of their activities on behalf thereof, or otherwise
discriminating in regard to the hire or tenure of employ-
ment or any terms or conditions of employment of its
employees.
(k) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
labor organizations, and to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection guaranteed by Sec-
tion 7 of the Act, or to refrain from any or all such ac-
tivities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Cecelia Simmons, David Casto, Craig
Redman, Vicki Ingersoll, Richard Kise, and David
Thompkins immediate and full and unconditional rein-
statement to their former jobs or, if such jobs no longer
exist, to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of pay they may have suf-
fered by reason of the discrimination against them by
payment to them of a sum of money equal to the amount
they normally would have earned as wages from the
date of their discharge or layoff to the date of their rein-
statement in the manner set forth in the section entitled
"The Remedy."
(b) Rate Vicki Ingersoll's job performance for the 6-
month period preceding April 1980 in a manner, and,
under circumstances, free of unlawful considerations of
union membership or activities and make her whole for
any loss of pay suffered by reason of the unlawful rating
of April 3, 1980.
(c) Assign Vicki Ingersoll to the duties she was per-
forming on or before October 18, 1979.
(d) Make Vicki Ingersoll whole for any loss of over-
time she may have suffered by reason of her discrimina-
tory assignment on or about October 21, 1979.
(e) Remove from the personnel files of Cecelia Sim-
mons, David Casto, and Jimmy Gibbs the significant in-
cident reports issued because of their union activities.
(f) Preserve and, upon request, make available to the
National Labor Relations Board and its agents, for exam-
ination and copying, all payroll records, social security
payment records, timecards, personnel records and re-
ports and all other records relevant and necessary to a
determination of the amounts of backpay due under the
terms of this Order.
(g) Post at its Palm Bay, Florida, facility copies of the
attached notice marked "Appendix."23 Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by the Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(h) Notify the said Regional Director, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of
the complaint found not to have been sustained by the
evidence be dismissed.
s3 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."
722