Goodman Forest Industries, Ltd.

National Labor Relations Board - Board Decisions

Jul 13, 1990

299 N.L.R.B. 49 (N.L.R.B. 1990)

GOODMAN FOREST INDUSTRIES 49
Goodman Forest Industries, Ltd. and International
Woodworkers of America—U.S.—AFL-CIO.
Case 30-CA-10475
July 13, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On January 31, 1990, Administrative Law Judge
Michael 0 Miller issued the attached decision The
Respondent filed exceptions and a brief and the
General Counsel filed a brief in answer to the Re-
spondent's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions' and briefs and
has decided to affirm the judge's rulings, fmdmgs,2
and conclusions 3 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Goodman
Forest Industries, Ltd, Goodman, Wisconsin, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order
The Respondent has requested oral argument This request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Ow 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent excepts, inter aim, to the judge's recommended
remedy which provides in relevant part that the Respondent offer em-
ployee Bambeau reinstatement The Respondent contends that Bambeau
is unfit for further employment with the Respondent In adopting the
judge's recommended remedy, we note particularly his conclusion, which
the record supports, that the General Counsel made a pnma facie show-
ing of discnmmation under the Board's holding in Wright Line, 251
NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), and rebutted the
Respondent's defense that Bambeau's conduct warranted discharge under
the Respondent's rules by showing that Bambeau was treated disparately
from another employee accused of similar misconduct See generally
Kingsport Press, 269 NLRB 1150 (1984) Thus, while we do not condone
Barnbeau's conduct, we cannot find that the Respondent regarded the
conduct as a basis for finding an employee unfit for continued employ-
ment
George Stria, Esq , for the General Counsel
Guy Robert Detlefsen Jr, Esq , of Wisconsin Rapids, Wis-
consin, for the Respondent
Merle A Burnell, National Representative, of Wausau,
Wisconsin, for the Charging Party
DECISION
STATEMENT OF THE CASE
MICHAEL 0 MILLER, Administrative Law Judge This
case was heard in Iron Mountain, Michigan, on October
31 and November 1, 1989, based on an unfair labor prac-
tice charge filed on May 16, 1989, by the International
Woodworkers of America—U S —AFL-CIO (the Union
or Charging Party) and a complaint issued by the Re-
gional Director of Region 30 of the National Labor Re-
lations Board (the Board) on June 28, 1989 The com-
plaint alleges that Goodman Forest Industries, Ltd (Re-
spondent or the Employer) engaged in surveillance of
employee union activities and discharged its employee,
Alan Barribeau, because of his union activity, in viola-
tion of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act) Respondent's timely filed answer
denies the commission of any unfair labor practices
On the entire record,' including my observation of the
demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and Respondent, I
make the following
FINDINGS OF FACT
I THE EMPLOYER'S BUSINESS AND THE UNION'S
LABOR ORGANIZATION STATUS PRELIMINARY
CONCLUSIONS OF LAW
Goodman Forest Industries, Ltd, a corporation, is en-
gaged at Goodman, Wisconsin, in the manufacture, non-
retail sale, and distribution of veneer and related prod-
ucts In the course of its business operations during the
year ending December 31, 1988, it sold and shipped from
its Goodman, Wisconsin facility products, goods, and
materials valued in excess of $50,000 directly to points
located outside the State of Wisconsin The Respondent
admits and I find and conclude that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
The complaint alleges, Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Background
Goodman, where the Employer's plant and offices are
located, is a small (population approximately 1900)
northern Wisconsin mill town The Employer's general
manager is Charles Crago (Crago), his son, Jeff Crago
(Jeff), is the veneer mill superintendent Charles Crago
reports directly to Richard Connor, Respondent's presi-
dent and major stockholder Respondent has about 275
employees, 75 to 80 of whom were working on the
second shift in the veneer mill during the relevant time
period
' The record includes as received two exhibits, R Exhs 17 and 18,
which were rejected The record is corrected to show that they are not
part of the record before me
299 NLRB No 10
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent's employees are not currently represented
by a labor organization. However, about 8 years ago,
before the present owners acquired this plant from Lou-
isiana-Pacific, the employees had been represented by the
Charging Party.
Alan "Joe" Barribeau, the alleged discriminatee, had
been a plant employee when it was owned by Louisiana-
Pacific and worked for Respondent from December 1983
until his discharge on April 28, 1989. 2 He worked,
second shift, as a log hoister on the veneer lathe and as a
bunch clipper operator.
B. Union Activity, Employer Knowledge, and
Evidence of Animus
When the plant's employees were represented by the
Union, Barribeau was a member of the negotiating com-
mittee. Since Respondent's acquisition of the plant, he
has remained in contact with, and has served unofficially
as the contact man for, the Union.
In about November 1988, Barribeau suggested to
Merle Burnell, the Union's national representative, that
the time was ripe for a renewed organizing campaign.
Burnell and other representatives began handbilling and
holding meetings with the employees in early 1989;
through April, handbills were openly distributed outside
the plant on six to eight occasions. Barribeau did not par-
ticipate in the distributions but discreetly passed out
some authorization cards, attended meetings, and met
with the union representatives frequently at his home,
which is less than two blocks from the plant. The pres-
ence of the union representatives in town was easily no-
ticed; Burnell drove a car with a Wisconsin license plate,
IWA2, and another representative, Bill Gooder, drove a
oar which was recognizable because of its Oregon tags.
Respondent's management knew of Barribeau's union
activity and support. Jeff Crago pointed out that Good-
man is a small town where secrets are hard to keep; he
had heard "plenty of hearsay" about Barribeau's union
activity although he never personally observed it.
Charles Crago testified that when the time came to dis-
charge Barribeau (discussed infra), he "was aware of
[his] union activity and involvement . . . all through his
employment [and I] was very deliberate and careful that
I handled it properly."
Similarly, management did not dispute General Coun-
sel's contention that it did not want to see its employees
organized. When Barribeau was hired, Charles Crago
told him that the Employer is a nonunion company and
asked whether he had any objections to working in such
an environment. Once the Union began its campaign,
Charles Crago issued two memoranda to its employees,
dated February 21 and March 8, urging and encouraging
employees not to sign authorization cards (while simulta-
neously assuring them, as he has done on other occa-
sions, that they had the right to support a union if they
wished). 3 On an occasion in April when Barribeau was
2 All dates hereinafter are 1989 unless otherwise specified.
3 General Counsel makes no contention that these memos violated the
Act.
handing out letters relating to a local tax dispute to
fellow employees in Respondent's parking lot, Charles
Crago asked him what he was doing. When Barribeau
showed .him a copy of the letter, Crago explained his in-
terest, stating, "Oh, I was just checking to see if it had
anything to do with the Union."
Notwithstanding its admitted opposition to unioniza-
tion and its longstanding knowledge of his union procliv-
ities, Respondent denies that it had any animus toward
Barribeau. Thus, it is claimed, and essentially admitted
by Banibeau, that at some time during his employment
he could have been discharged for excessive absenteeism
but was not. He received warnings for excessive absen-
teeism in October and November 1986 and again in April
1987.
Respondent's absenteeism control plan allegedly re-
quires that absences in excess of 10 must be excused (ac-
cording to testimony by Foreman Joe Rademacher). As
recently as early March, Respondent asserts, it took
steps, notwithstanding his known union activity, to
ensure that Barribeau did not run afoul of this program
and bring about his own termination. Thus, it was
claimed, when Barribeau was facing an extended absence
for surgery, to begin in about mid-March, he was alleg-
edly called by Charles Crago and advised to request a
leave of absence. Crago's memo to Barribeau's personnel
file, dated March 3, purports to corroborate the call. It
states that Crago warned Barribeau that he was subject
to discharge under the Employer's absentee control plan
and the "new Wisconsin Family and Medical Leave
Act" if not covered by an authorized and approved
leave of absence. Barribeau's file also contains an un-
signed application for a leave of absence, dated March 3,
1989, with his name printed at the top (in a style distinct-
ly different from the printed name and address on his au-
thorization card), signed by Joe Rademacher as his fore-
man and approved by both Cragos.
However, the leave request was not signed by Barn-
beau and he denied that Charles Crago had suggested
that he request it. The only such call he recalled was one
which occurred in February of what he believed to be
1986. General Counsel noted that Barribeau submitted a
doctor's disability certificate to the Employer, dated
March 14, 1989, indicating that he would be totally inca-
pacitated for an indefinite period following that date. He
has further pointed out that (aside from Rademacher's
cryptic description) the absenteeism control plan was not
presented in evidence, that Barribeau had no absences in
1989 through March 13 and there was no evidence that
his past record placed him at risk under whatever plan
existed, and that the Wisconsin Family and Medical
Leave Act, Wis. Stats. 103.10, does not preclude an em-
ployer from granting more generous leave benefits or
mandate termination. Thus, General Counsel argues,
there was no reason for Crago to call Barribeau.
While Barribeau's recollections concerning this matter
are not entirely consistent with the record (he had re-
ceived neither a warning for absenteeism nor a leave of
absence in February 1986 or February 1987—he had re-
ceived warnings in October and November 1986 and
April 1987 and a leave of absence in November 1986) I
GOODMAN FOREST INDUSTRIES 51
am constrained to credit his testimony over that of the
Cragos and Rademacher The testimony of the latter wit-
nesses was both self-serving and inconsistent Thus, in
addition to the points noted by General Counsel, I note
that Charles Crago was in error when he claimed that
Barnbeau had come in and filled out a request for a
leave of absence, Barnbeau never filled out that request
I note, too, that Rademacher erroneously claimed that he
had filled it out on Barnbeau's behalf at Crago's direc-
tion, after Barnbeau had submitted a doctor's disability
request, the leave of absence request is dated 10 days
before the doctor's request and Crago did not claim to
have directed Rademacher to make it out Finally, I note
that Jeff Crago's testimony is inconsistent with that of
both Rademacher and his father
C Alleged Surveillance
In the late afternoon of Apnl 26, Bambeau met with
Union Representatives Burnell and Gooder at his home
at the corner of Fourth and A, only two blocks from the
plant Gooder's car, with its readily recognizable Oregon
tag, was parked in front of the house During the meet-
ing, either Bambeau or his wife noticed Charles Crago
drive slowly by on Avenue A, toward the stop sign at
the intersection, and then turn left onto Fourth Street,
past the front of his house, to the next street, Maple, and
turn north
Charles Crago admitted driving by Barnbeau's home
while Gooder's car was parked there, although he re-
called this as having occurred on April 27 The intersec-
tion where Bambeau's house is located is not on the
route from the plant to Crago's home in Florence, Wis-
consin, and Crago did not explain his presence Other
witnesses, however, testified that there are plant facilities
on Fourth Street, close to the Bambeau home, and else-
where around Goodman They asserted that Crago fre-
quently drives around town, either m route to those
other facilities or merely to get out of the plant for a
period of time Even Barnbeau acknowledged that he
has seen Crago drive around Goodman, and past his
house, on numerous occasions
General Counsel asserts that, in the absence of evi-
dence of a business or other legitimate purpose for
Crago's having driven by the Barnbeau home while the
meeting was in progress, it must be mferred that he did
so in order to surveill Barnbeau's union activity in viola-
tion of Section 8(a)(1), citing Turnbull Cone Baking Go,
271 NLRB 1320, 1354 (1984) Respondent, citing Key
Food Stores, 286 NLRB (1987), asserts that the "mere ob-
servation of open, public, union activity by an employer
on or near its property does not constitute unlawful sur-
veillance"
Neither citation is squarely on point In Turnbull Cone,
a supervisor who repeatedly drove past a union meeting,
and offered an unpersuasive explanation for having done
so, was found to have unlawfully surveilled that meeting
Here, there was no repetition of the conduct, merely the
supervisor's presence, driving at a speed which was not
inconsistent with the existence of a stop sign at the inter-
section and no explanation other than that supervisor's
habit and practice was offered
Similarly distinguishable is Key Food Stores Bambeau's
union activity was not open and public, as the activity
had been in Key Food Stores, it was conducted in his
home, a locus which carries with it an expectation of pri-
vacy even though near the plant The only feature of the
meeting which was open was the presence of Gooder's
easily identified car on the street in front of the house
While the matter is not free from doubt, I am con-
stramed to conclude that the circumstances do not war-
rant a finding of unlawful surveillance Barnbeau was an
open and known union supporter, there were no other
employees present, Crago did nothing to attract attention
to himself such as might tend to interfere with employee
activities, he did not refer to his observation in any sub-
sequent conversation with Barnbeau or other employees,
and his fleeting presence was not inconsistent with his
normal activities or routine Accordingly, while I find
that this incident establishes Respondent's knowledge of
Barnbeau's continuing union activity, I do not find that
it had a tendency to coerce or interfere with employee
union activity such that it rose to the level of unlawful
surveillance I shall recommend that this allegation be
dismissed
D Barnbeau's Misconduct and Discharge
On Friday, Apnl 28, Charles Crago sent, and Barn-
beau received, the following letter
Dear Mr Bambeau
This is to inform you that your employment by
Goodman Forest Industries is hereby terminated, ef-
fective immediately
We have discovered that you have indecently ex-
posed yourself, on one or more occasions, to the
women and other employees in the plant This be-
havior violates the companies [sic] work rules and
policies, of which you have been previously in-
formed
The above has been confirmed by our investiga-
tion and written documentation
Barnbeau, who was still on the leave of absence which
had begun March 14, immediately walked over to
Crago's office where he met with Crago and Ward
Leach, whose functions include personnel Barnbeau
asked what was meant by the letter and was told that
there were complaints of Bambeau "moonmg" (i e,
dropping one's pants so as to reveal one's buttocks) Bar-
nbeau admitted one incident of mooning, that being all
that he claims to have recalled at that time He asked
who had complained and asked further that Crago re-
consider the discharge Crago refused both requests and
stated that the Employer's counsel had told him he could
not reconsider the discharge
In the course of their meeting, Barnbeau falsely
claimed that he had not yet signed an authorization card
and asked whether the presence of the union representa-
tives at his home a day or two earlier had anything to do
with his discharge Crago denied that it had Bambeau
also asked about other people who had similarly
mooned Crago asked who and Barnbeau identified
Rodney Kuczala, the lathe operator on his shift He was
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
told that if he produced two complaints on Kuczala for
Crago, Kuczala would also be fired.
According to Leach, Barribeau was told that there
was evidence that he had exposed himself both in the
plant and on the parking lot and Barribeau admitted only
the occurrence on the parking lot. Neither Crago nor
Leach recalled Barribeau mentioning his union activity
other than inferentially by stating that he knew he was in
trouble when he saw Crago drive by his house.
Both Crago (in his May 3 memorandum) and Leach
recalled Barribeau stating that other employees had
mooned but both denied that he identified Rodney Kuc-
zala as having done so. Donald Tomaszewski, the office
manager who sits just outside Crago's office door, heard
Barribeau say that someone else had also engaged in
mooning and heard Crago ask who it was. Tomaszewslci
claimed not to have heard, or to be unable to recall, any
reply by Barribeau.
The only possibly significant distinction between
Crago's and Barribeau's versions of the April 28 conver-
sation is whether or not Barribeau mentioned Rodney
Kuczala as another employee who had engaged in moon-
ing. I believe that he did. 4 In reaching this conclusion, I
note, in addition to the demeanor of the witnesses, To-
maszewslci's corroboration of Barribeau's assertions that
he told Crago that another employee had also mooned
and that Crago asked who that was. Given Crago's pur-
ported concern for indecent exposure, it is not plausible
to believe that he would not have asked who else did it.
Similarly, given that his job was on the line, it is not
plausible to believe that Barribeau would not have told
him. If Crago did not ask, I would note, his concern for
such misconduct is belied.6
Barribeau did not deny having engaged in several
mooning incidents in 1988. He did not recall, but would
not deny, having done so in 1987. The, testimony of Bar-
ribeau's fellow employees indicates that his mooning was
observed by Shelly Knutson on two occasions in late
1987, and again by Pamela Bullinger and Knutson in No-
vember or December 1988, all in the plant at the lathe or
clipper. His mooning was' also observed by Kaleen
Ritchie and Tom Hirte, in the parking lot after the con-
clusion of the second shift, sometime around November
1987. This latter incident was brought to the attention of
James Majewski, a first-line supervisor, who warned Bar-
ribeau that such conduct could give Crago a reason to
fire him; Majewski did not report it to any higher au-
thority.
The mooning first came to the attention of Respond-
ent's management on April 17 when Jeff Crago investi-
* An employee who, like Barribeau, falsely denies that he signed a
union authorization card in order to avoid an impending discriminatorily
motivated discharge is not telling the truth, but such dissembling, when
not under oath, does not, in my opinion, necessarily reflect adversely
upon his overall credibility.
5 Whether Barribeau referred to the alleged surveillance directly or
only by inference is immaterial. Similarly immaterial is whether Bard-
beau, who had already been discharged, falsely denied the additional
mooning incidents or honestly only recalled one at that time. Even the
question of whether Rodney Kuczala's name was mentioned is of less sig-
nificance than the parties accord it, given that Crago's May 3 memo
admits that he learned of Kuczala's alleged mooning by the morning of
the next workday, Monday, May I.
gated a report of mooning by another employee. In
speaking with Shelly Knutson, he was told that, while
the suspected individual had only been tucking in his
shirt, others had mooned and gotten away with it. When
asked, she identified Barribeau as having mooned her
more than once and named several other employees who
had witnessed him doing so. According to Jeff, she also
told him that one of the female employees was thinking
of pressing charges. Knutson, whose testimony I credit,
disputed this and subsequent efforts to put such words
into her mouth; she denied making the latter statement
or ever mentioning going to "the proper. authorities."
Rather, she told Jeff Crago that something should be
done because they "didn't want to see the harassment
. . . going on any further."
After discussing the matter with his father, Jeff Crago
questioned several other employees. Tom Hirte, he said,
told him that he had seen Barribeau moon Kalene Ritch-
ie in the parking lot in late fall (of 1988, according to
Jeff's recollection). James Majewsld and Ritchie and
Pamela Bullinger similarly confirmed Barribeau's moon-
ing activities in the plant and in the parking lot.
Jeff reported this information to his father about April
25 and, at his father's direction, based upon advice of
counsel, took statements from these employees on April
26. 6 Bullinger's statement reported observations of Barn-
beau's mooning on two occasions in November (without
specifying which year), both in the plant. Knutson's
statement relates an observation, on the job, about No-
vember 22, and a conversation with Barribeau's wife
wherein she had commented, "Oh, is he doing this
again?" Majewski's statement reports a mooning incident,
in the plant, in late August 1988 (which Majewski has
testified was in error; it was 1987). Hirte and Ritchie
gave statements describing Barribeau's mooning of
Ritchie in the parking lot during the fall; both relate it as
having happened about 1:15 a.m., but Ritchie remem-
bered it as 1987 and Hirte said 1988.
Neither Jeff nor Charles Crago questioned Barribeau
about the allegations of mooning. Charles Crago testified
that, given the evidence against him, there was no reason
to talk to Barribeau.
Aware of Barribeau's union activity, Charles Crago
called both company counsel and its principal stockhold-
er to confirm what he stated was his April 25 decision to
discharge Barribeau. Connor supported his decision. The
discharge letter, allegedly drafted on April 25, was given
to his secretary on April 27 and, as noted, was received
by Barribeau on April 28.
There is no question but that the mooning violated
several company work rules prohibiting indecent con-
duct, horseplay, abusive actions, and sexual gestures and
harassment. Barribeau was aware of the rules and ac-
knowledged that his conduct would be grounds for dis-
charge under them.
6 Charles Crago's April 28 memo, R. Exh. 9, contains the following
statement: "On Wednesday, April 26, I personally contacted each person
and obtained a written and signed statement that they had witnessed Alan
Barribeau indecently exposing himself." The memo, in this regard, ap-
pears to be inconsistent with the testimony of both Cragos.
GOODMAN FOREST INDUSTRIES

53
On May 5, after hearing from several employees that
the Union was going to hire an attorney to defend him,
Crago sent Barnbeau another letter, putting forth addi-
tional grounds for the discharge and purporting to re-
spond to a question of possible rehire In that letter,
Crago stated that there were reports of Barnbeau "per-
sonally and selectively harassing fellow workers [as]
reported by several fellow workers" He asserted that
Barnbeau had a questionable and excessive absenteeism
record and alleged that Barnbeau had lied about the fre-
quency and location of the mooning incidents In light of
that, he wrote, Respondent would not consider rehiring
hun, even though some people had been rehired in the
past None of these matters had been included in the dis-
charge letter or mentioned to Barnbeau on April 28
As previously noted, Barnbeau had received several
warnings for absenteeism in 1986 and 1987, the record
does not indicate what absenteeism, if any, he had in
1988 and he had none, prior to his medical leave of ab-
sence, in 1989 He had received a written warning in
June 1987 for failing to complete an accident report and
was orally reprimanded for yelling at Pamela Bullmger
in 1988
Charles Crago denied that he was motivated by Barn-
beau's umon activity in deciding to discharge him The
mooning was serious enough misconduct to warrant dis-
charge, he felt, and he was allegedly concerned that fail-
ure to take action could result m the filing of charges
before the Wisconsin Equal Rights Division Similarly,
Jeff Crago testified that he considered mooning to be a
very serious violation of several work rules and mtolet-
able sexual harassment
E Alleged Disparate Treatment
1 Rodney Kuczala
As noted, when Barnbeau spoke with Charles Crago
on Friday, April 28, he told Crago that Rodney had also
mooned his fellow employees While Crago demes this,
his May 3 memo admits that he learned of accusations
against Rodney Kuczala at least as early as Monday
morning, May 1, from another employee According to
that memo, Crago then told the members of the manage-
ment advisory committee that if they knew of anyone
engaging in such conduct, they should get two signed
statements verifying it and he would fire the individual
involved
Again according to the May 3 memo, Charles Crago
learned from Jeff, on Tuesday, May 2, that employees
were teasing Rodney Kuczala about mooning and the
possibility of his being discharged That memo relates
that Rodney even spoke to Jeff about it, offering to quit
but denying the mooning, and Jeff dropped the matter
Finally, according to the memo, Charles Crago heard al-
legations of Kuczala's mooning from various employees
while he made his "rounds" of the plant on the afternoon
of Wednesday, May 3 This caused him to call his attor-
ney for guidance, he was advised that he was obligated
to investigate and, that afternoon, directed Jeff Crago to
question the second shift employees 7
Jeff Crago questioned, and took statements from, only
the employees who had given statements regarding Bar-
nbeau Mite, Ritchie, and Majewski told him that they
had not seen Rodney Kuczala moon anyone Knutson, in
a May 4 statement, related that she had "seen Rodney
Kuczala indecently expose himself on the green end (i e,
the veneer mill) last year" Pamela Bullinger gave a
statement that she had seen "Alan Barnbeau and Rodney
Kuczala drop their pants and expose their backside
up in the lathe area "Bullmger, Rodney's cousin, testi-
fied that the incident happened so fast that she could not
be sure Rodney did it and asserted that she had told Jeff
Crago, right from the start, that she could not be 100
percent sure However, she affirmed that she had be-
lieved her statement to be true and correct when she
gave it Allegedly, Jeff also questioned Rodney shortly
after his name surfaced and Rodney denied mooning
anyone Rodney, however, denies being questioned until
called into Crago's office on May 8
On May 5, Charles Crago wrote Rodney, requesting
that he come into the office before work on his next
shift 8 On May 8, Rodney gave Crago a statement deny-
ing that he had mooned anyone on company property on
the second shift and offering to take a "he detector" test
to verify that claim According to Charles Crago's May
3 memb (which relates events subsequent to that date),
Crago determined that, "inasmuch as I could not abso-
lutely prove that Rodney Kuczala did expose himself
and there seemed to be some question of credibility re-
garding the statements, I dropped the matter and no dis-
ciplinary action was taken"
On May 9, Crago wrote Rodney Kuczala, detailing
the evidence Of the five people who witnessed Barn-
beau's displays, he said, three did not see Kuczala and
"two (2) people indicated that they thought they had"
He noted, as well, Rodney's denial and concluded that
"since the alleged incidence [sic] occurred at the same
time, there is support for your denial" Rodney was told
that he would not be formally disciplined at that time
but was warned that "such conduct is contrary to the
rules and policies of Goodman Forest Industries, and
would result in immediate dismissal"
On June 28, Crago wrote Rodney the following letter
Dear Rodney,
As I previously informed you, the Company in-
tended to investigate further the matter of your al-
7 In their testimony, both Charles and Jeff Crago described their acqui-
sition of information about Rodney Kuczala somewhat differently
Charles testified that "it wasn't until several weeks later that Rodney's
name kept popping up amongst other employees" and he directed Jeff to
investigate, pursuant to his attorney's instructions Jeff recalled that Rod-
ney's name came up in the course of his own investigation of rumors that
others had mooned Other than Bambeau's testimony, and notwithstand-
ing that I deem Crago's memoranda to be generally self-serving, I find
the admissions contained in Charles Crago's May 3 memo to be the most
reliable evidence of when and how Rodney Kuczala's name came Into
the picture
Unlike the formal letter addressed to Barnbeau, this letter was Infor-
mal in tone, addressed, "Dear Rodney," and concluded with pleasantnes
about Rodney's wife
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leged indecent exposure Based on this further in-
vestigation, the Company has determined that it is
appropriate to issue you a written warning for such
alleged incident This letter constitutes such a warn-
ing, and any violation of Company work rules in
the future shall result in immediate discharge
Except for this warning, your record is spotless
Evidence indicates that your exposure, if any, was a
single isolated incident and one of the three (3) em-
ployees who was in a position to observe any such
exposure states that none was observed If you
submit a polygraph showing that you did not
expose yourself to your fellow employees, this writ-
ten warning shall be withdrawn
Contrary to the first sentence of this letter, the record
contains no evidence of a commitment or intention to
continue to investigate Kuczala's conduct after the May
9 letter issued Indeed, that letter indicates that the inves-
tigation had been completed Similarly, Crago's May 3
memo states that he considered the Kuczala matter
closed Moreover, the record contains no evidence of
any additional investigation or new evidence after May
9 The only intervening event was the Regional Direc-
tor's decision to issue complaint 9 The June 28 letter and
warning issued, I am convinced, so as to make the treat-
ment of Rodney Kuczala appear less distinguishable from
that accorded Barnbeau
As stated in the June 28 letter, Charles Crago contends
that the differences in Bambeau's and Kuczala's work
records, in addition to the evidence of their mooning,
warranted different treatment Kuczala had a clean
record and few absences, Barnbeau had a history of ab-
senteeism and warnings, primarily in 1986 and 1987
2 William Kuczala
Approximately 2-1/2 years ago, a day shift foreman,
William Kuczala (Rodney's father), came into the plant
during Shelly Knutson's shift and, while under the influ-
ence of alcohol, made heavy, persistent, and unwelcome
sexual advances upon her Her foreman, Roger Coffe,
observed that she was upset and witnessed some of the
harassment The matter was reported to Charles Crago
who called Knutson into his office When she described
what had occurred, Crago asked what she had done to
provoke William Kuczala He then told her that she
would be fired if her name ever came up again in his
office or with respect to this kind of matter
Crago acknowledged that Knutson had told him of
William Kuczala's advances, however, he did not make
an issue of the sexual harassment when he spoke again
with William Kuczala He claimed that "It wasn't a big
issue to me It wasn't brought up as a big issue to me I
did not want to know all the details of what happened"
William Kuczala was warned about coming into the
plant with alcohol and a notice was subsequently posted
9 I take administrative notice of the procedures in the Regional Offices,
providing for settlement discussions after a decision has been made to
issue complaint and before that complaint actually Issues See NLRB
Casehandling Manual, § 10124 2
directing employees not to return to the plant after the
conclusion of their shifts 10
3 Analysis
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd
662 F 2d 899 (1st Cir 1981), approved by the Supreme
Court in NLRB v Transportation Management Corp, 462
U S 393 (1983), the Board set forth the following test of
causation to be applied in all discrimination cases turning
on employer motivation
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the action would have taken place
even in the absence of the protected conduct
In the instant case, the General Counsel has estab-
lished Bambeau's union activity concurrent with the al-
leged discrimination, Respondent's knowledge of that ac-
tivity and the existence of some union animus Noted
with respect to ammus is Respondent's stated opposition
to the organization of its employees when Bambeau was
hired See Kessel Food Markets, 287 NLRB 426 (1988),
and cases cited therein, see also Rood Industries, 278
NLRB 160 (1986) This animus was reiterated in two let-
ters to all employees during the current organizational
campaign Lynn's Trucking Co, 282 NLRB 1094, 1099
(1987) Noted, too, is Crago's comment when Barnbeau
distributed a flyer on an unrelated topic outside the
plant, 1 e, "I was Just checking to see if it had anything
to do with the Union" That statement is in the nature of
surveillance or the creation of the impression of surveil-
lance See South Shore Hospital, 229 NLRB 363 (1977)
Moreover, General Counsel has shown that Respond-
ent put forth shifting or pretextual reasons for the dis-
charge, evidencing discriminatory motivation Master-
craft Casket Co, 289 NLRB 1414, (1988), enfd 881 F 2d
542 (8th Cir 1989), Swift & Co, 250 NLRB 1223, 1225
(1980) When the discharge letter issued, and when Bar-
nbeau came in to Crago's office to discuss that dis-
charge, only one reason for the discharge and for Re-
spondent's refusal to consider rehiring Bambeau was ad-
vanced, his mooning of fellow employees However,
when it became apparent that the Union was going to
challenge the discharge, and when it became necessary
to distinguish the course of action followed with respect
to Barnbeau from that accorded Rodney Kuczala, addi-
tional and essentially insubstantial reasons were added
Respondent seized upon stale disciplinary actions and
statements made after the discharge to justify the previ-
10 Shelly Knutson has refrained from reporting subsequent incidents of
harassment by William Kuczala because of her fear that she would be
discharged if she did so She was a sincere and thoroughly credible wit-
ness whose testimony I accept over that of both Charles and Jeff Crago
Crago's explanation of their meeting, particularly his claim that he threat-
ened Knutson with discharge because Coffe told him "that there was a
discussion with Shelly" lacks both logic and plausibility even if, as he
claimed, she had been reprimanded on prior occasions for her inability to
get along with others
GOODMAN FOREST INDUSTRIES 55
ously determined discharge and refusal to rehire Addi-
tional stale allegations were raised at hearing
In like vein, I note Respondent's repeated attempts to
make its position stronger than it was, to bolster the
record with seemingly official documentation Thus, I
note that there was no reason for the May 5 letter setting
forth additional reasons for his termination and Respond-
ent's refusal to rehire him Bambeau's request to be re-
hired had been conclusively rejected on April 28 Con-
trary to the language of the letter, there was no further
investigation of his conduct after April 28 and the possi-
bility of his being rehired was not a pending question as
of May 5 Thus, that letter can only be seen as having
been stimulated by the receipt of information that the
discharge would be challenged and by the need to distin-
guish that discharge from Rodney's retention
Similarly, when informed that a complaint would
issue, Respondent again attempted to supplement the
record by belatedly issuing a wntten warning to Rodney
Kuzcala As in the case of the May 5 letter to Barnbeau,
there was no reason to issue a new letter to Kuczala
Contrary to the first sentence in the June 28 letter, there
had been no promise to continue the investigation after
May 9 and, in fact, there had been no additional investi-
gation or new evidence brought to light between May 9
and June 28 Indeed, if Crago's May 3 memo is to be be-
lieved, the investigation into Rodney Kuczala's conduct
was concluded with a determination that no discipline
was warranted, and the matter "was dropped" as of the
date that memoranda was completed I note, also, that
Crago's memoranda appear to be more than routine
memos to file The manner in which they are written,
with the inclusion of the titles of persons mentioned
therein e, "Jeff Crago (Veneer Mill superintendent)"
and "Guy Detlafson [sic], our attorney," indicates that
Crago intended that they be read by whomever might be
investigating Barnbeau's termination It is improbable
that, if a memoranda was prepared simply to record
events for the future refreshing of recollection, it would
include reminders that the author's son was the Veneer
Mill superintendent The creation of such memoranda,
like the issuance of the May 5 and June 28 letters further
suggests pretext and discriminatory motivation and di-
minishes Crago's credibility
Finally, I note that Respondent discharged Barnbeau
without ever questioning him about the mooning inci-
dents Crago's lack of interest in hearing what Barribeau
might have had to say, is additional evidence of unlawful
motivation York Products, supra, Brookshire Grocery Go,
282 NLRB 1273 (1987) In this regard, as it is Crago's
motivation as shown by how he investigated the allega-
tions that is at issue here, it is immaterial that Barnbeau
was guilty of mooning or might have admitted it had he
been questioned
From all of the foregoing, I must conclude that
General Counsel has shown a fairly strong prima
facie case of discrimination Pursuant to the Wright
Line analysis, once the General Counsel has satis-
fied its initial burden of proof, the burden shifts to
the Respondent to demonstrate that it would have
taken the same action even in the absence of the
protected conduct An employer cannot carry its
burden of persuasion by merely showing that It had
a. legitimate reason for the action, but must show by
a preponderance of the evidence that the action
would have been taken even absent the protected
conduct
Delta Gas, 282 NLRB 1315, 1317 (1987), York Products,
supra
Here, Respondent has shown that, over a period of at
least 2 years, Bambeau repeatedly engaged in aberrant
and obnoxious conduct That conduct was clearly in
contravention of several different plant rules and, based
upon those rules, would have warranted discipline, in-
cluding discharge
However, by showing that Barnbeau was treated dis-
parately from another accused of similar misconduct,
General Counsel has effectively rebutted Respondent's
defense See Treffinger Repair Services, 281 NLRB 516
(1986), and Esco Elevators, 267 NLRB 728 (1983) Thus,
the evidence establishes that, following a single report of
Bambeau's mooning, Respondent launched a full scale
investigation, questioning other employees and taking
their statements When it acquired several statements
supporting the allegation, and without ever questioning
Barnbeau, it issued a curt and formal notice of termina-
tion
In contrast, Respondent did not begin to investigate
the allegations concerning Rodney Kuczala until it had
heard those allegations from at least three sources Even
then, it did so reluctantly No investigation was com-
menced until counsel had been consulted and advice re-
ceived that Respondent "had an obligation to investigate
this situation to find out if, in fact, the story was true"
When Barnbeau was reported to have mooned, Jeff
Crago questioned employees and took statements When
Barnbeau related that Rodney had engaged in similar
mooning conduct, the burden of proving the misconduct
was shifted to the employees Barnbeau was old that if
he produced two statements implicating Rodney, Crago
would discharge Rodney Similarly, the management ad-
visory committee was told "that if they knew of anyone
else that had done this [they should get] 2 written state-
ments and [Crago] would discharge the person in-
volved"
Notwithstanding its statements to Bambeau and the
advisory committee, Respondent did not discharge
Rodney Kuczala when it received two unambiguous
statements supporting the accusations against him
Rather, he was sent an informal and even chatty letter,
entirely different in tone and purpose from the letter sent
Barnbeau, asking that he come m Unlike Barnbeau, his
side of the story was sought, and accepted over the con-
trary statements, before any action was taken Moreover,
when Crago summarized the evidence it had received for
and against Rodney in the May 9 letter, he mischaracter-
ized and minimized the statements of Knutson and Bul-
linger They did not say that they "thought" they saw
Rodney moon, their statements state unequivocally that
he did
Thus, even assuming that Rodney Kuczala was inno-
cent of the mooning allegation, it is clear that he was
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
treated differently, and much more favorably, from Bar-
nbeau
Similarly, other evidence negates Respondent's de-
fense Respondent categorized Barnbeau's mooning as
sexual harassment, and the Cragos purported to be dis-
turbed by both the existence of such harassment and by
the possibility of facing legal action to end it This would
be admirable were it not for Respondent's earlier tolera-
tion of conduct by William Kuczala which, much more
clearly, involved improper sexual harassment ' 1 In that
case, Charles Crago stated that he was not particularly
concerned and, almost classically, blamed the female
victim for provoking the male harasser
Based upon all of the foregoing, I find that General
Counsel's prima facie case establishing unlawful motiva-
tion stands unrebutted Accordingly, while not condon-
ing Barnbeau's behavior, I must conclude that Respond-
ent discharged Alan Barnbeau because of his union ac-
tivity in violation of Section 8(a)(3) of the Act
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act
The Respondent having discnmmatonly discharged
Alan Barnbeau, an employee, it must offer him reinstate-
ment and make him whole for any loss of earnings and
other benefits, computed on a quarterly basis from date
of discharge to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F W Wool-
worth Go, 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons for the Retarded, 283 NLRB 1173
(1987)
CONCLUSIONS OF LAW
1 By discharging Alan Barnbeau because of his union
activity, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(3) and (1) and Section 2(6) and (7) of the Act
2 Respondent has not engaged in any other unfair
labor practice alleged in the complaint not specifically
found herein
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, I hereby issue the fol-
lowing recommended12
ORDER
The Respondent, Goodman Forest Industries, Ltd,
Goodman, Wisconsin, its officers, agents, successors, and
assigns, shall
" Whether, in the context of the earthy atmosphere prevailing on Re-
spondent's second shift, mooning can be considered sexual harassment
rather than merely obnoxious and obscene behavior, is an open question
There is no question but that William Kuczala's insistent approach to
Knutson constituted sexual harassment whether or not he perceived her
as "coming on" to him on other occasions
12 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1 Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting the International Wood-
workers of America—U S —AFL-CIO or any other
union
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Alan Barnbeau immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the decision
(b) Remove from its files any reference to the unlawful
discharge and notify Alan Barnbeau in writing that this
has been done and that the discharge will not be used
against him in any way
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its plant in Goodman, Wisconsm, copies of
the attached notice marked "Appendix " 13 Copies of the
notice, on forms provided by the Regional Director for
Region 30, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
GOODMAN FOREST INDUSTRIES 57
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the International
Woodworkers of America—U S —AFL-CIO or any
other union
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Alan Barnbeau immediate and full re-
mstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his semonty or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest
WE WILL notify Alan Barnbeau that we have removed
from our files any reference to his discharge and that the
discharge will not be used against hmi in any way
GOODMAN FOREST INDUSTRIES, LTD