Hewlett Packard Co.

National Labor Relations Board - Administrative Judge Opinions

Nov 5, 2003

25-CA-028591 (N.L.R.B. Nov. 5, 2003)

JD–120-03
Indianapolis, IN

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

HEWLETT PACKARD COMPANY1

and Case 25–CA–28591

UNITED STEEL WORKERS
OF AMERICA, AFL–CIO, CLC

Kimberly R. Sorg-Graves, Esq., for the General Counsel.
Paul E. Bateman, Esq. (Littler Mendelson), of Chicago, IL,
for the Respondent.
Anthony Alfano, Esq., of Gary, IN, for the Charging Party.

DECISION

Statement of the Case

Joseph Gontram, Administrative Law Judge. This case was tried in Indianapolis, Indiana
on July 10 and 11, 2003. The charge was filed February 21, 2003, and the complaint was
issued April 29, 2003. The complaint alleges that the Respondent violated Section 8(a)(3) and
(1) of the National Labor Relations Act (the Act) by discharging its employee David Snead
because Snead assisted the United Steel Workers of America, AFL–CIO, CLC (Union) and had
engaged in concerted activities. The issue is whether Snead’s actions in assisting the Union and
the Union’s organizing campaign were a motivating factor in the Respondent’s decision to
discharge him, and if so, whether the Respondent would have taken the same action without
regard to such activities.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
1 The General Counsel submitted a motion at the conclusion of the hearing to amend the
caption of this case to substitute Hewlett Packard Company for HP/Compaq Direct, the party
originally named as the Respondent. Hewlett Packard Company, in whose name the complaint
was defended, is the successor to Compaq Computer Corporation (Compaq) pursuant to a
merger between the companies in May 2002. Compaq was a wholly owned subsidiary of
Hewlett Packard and was the employer of all employees involved in this case until December
31, 2002, at which time Hewlett Packard became the employer. Compaq Direct was a name
used by Compaq to describe the services of a wholly owned subsidiary of Compaq. Hewlett
Packard represents that it is the successor under Board law to the employer at the time of the
alleged unfair labor practices. Hewlett Packard has stipulated that it is liable for any remedies
that could result from these proceedings, including postings, backpay, reinstatement, and any
other remedy found appropriate. Accordingly, I have granted the General Counsel’s motion to
amend the caption of the case.

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Findings of Fact

I. Jurisdiction

The Respondent, a corporation, manufactures and customizes computers at its facility in
Indianapolis, Indiana, where, during the past 12 months, a representative period, it sold and
shipped goods valued in excess of $50,000 directly to points outside the State of Indiana, and
purchased and received goods valued in excess of $50,000 directly from points outside the
State of Indiana. The Respondent admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practice

A. Management and the Plant

In April 2002,2 Keith Heinrich was named the director of the Respondent’s Indianapolis
facility,3 the highest management position at that facility. In May 2002, Stan Smith was
transferred from the Respondent’s Ontario, California plant, and was named the production
manager, the second highest management position at the Indianapolis facility. Since at least
May 2002, and at all relevant times to this proceeding, the following persons held the following
positions: Pamela Elliott, human relations manager; Jonathon Hughes, shift supervisor; Kyle
Degonia, shift supervisor; Jason Shryock, shift supervisor; Rob Haverly, quality assurance
supervisor; and Mark Hancock, team leader. Shift supervisors have the authority to recommend
that an employee be disciplined, up to and including discharge. Team leaders do not have the
authority to impose or recommend discipline.

The Indianapolis facility is approximately 400,000 square feet. The manufacturing or
CAMS room, where computers are customized, is 50,000 square feet, or about one acre. Other
areas in the facility include a bulk storage area, small parts storage area, raw and process area,
receiving dock and offices, inbound area, high-density storage area, assembly areas, shipping
area, the out of box audit (OBA) area, and miscellaneous offices and other areas. In August
2002, there were approximately 1500 workers employed at the Indianapolis facility, including
part-time employees.

B. David Snead and the Commencement of the Organizing Campaign

David Snead began working for the Respondent in 1998.4 In approximately 2000, he
was promoted to technician II or senior technician. In this position, he worked with and assisted
six junior technicians in locating and assembling servers, parts, and hardware in order to
construct and configure computers. The Respondent had four shifts for its employees. In August
2002, Snead was working the first shift of the week consisting of three successive 12-hour shifts
2 All dates are in 2002 unless otherwise indicated.
3 The parties and witnesses also referred to this facility as the Georgetown Road facility.
4 Snead began working for Van Star Company or Inacom Corporation, predecessor
corporations to Compaq Computer Corporation. There have been several mergers/takeovers
involving the Respondent in this case. See also footnote 1. In light of the stipulations of the
parties and the representations of the Respondent, I will refer to the employer and any
successor entity as the Respondent.

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from 7 p.m. to 7 a.m., Sunday night to Wednesday morning, plus every other Saturday.
However, for religious reasons, Snead did not work on Sundays, so his Sunday shift began on
Monday at 12 a.m.

In approximately February 2002, Snead had discussions with several coworkers about
the possibility of being represented by a union. Snead then contacted the Union and a meeting
was arranged for March 4 between these workers and the Union. Soon after the meeting, the
organizational campaign began. Snead attended the initial meeting with the Union as well as all
subsequent organizational meetings which numbered about 10. The employees who met with
the Union formed an organizing committee, and Snead was a member of the committee. The
Union considered Snead to be its lead organizer at the Respondent.

In early May, Snead became an open, visible advocate for the Union. He made himself
available to coworkers to discuss the advantages of organizing. He talked to employees about
the Union. He distributed Union pamphlets at work. He regularly wore a shirt to work that
advocated the Union in large letters, and was wearing this shirt on the day he was discharged.
He made stickers for his car that advocated the Union and displayed those stickers in the car’s
rear window. He regularly drove his car to work and parked in the plant’s parking lot. No other
employee was as open or visible as Snead was in his support for the Union.

The Respondent was well aware of Snead’s active support for the Union. As noted, he
openly displayed his support on a shirt he wore to work. On one occasion, Snead observed
Hughes with other employees standing behind Snead’s car in the parking lot while Hughes was
pointing at the union signs on Snead’s car. Hughes and this group quickly disbanded when
Snead approached them. On one occasion, Hughes was following Snead as Snead was
walking within the plant. Hughes asked Snead to stop and he then stared at the back of Snead’s
shirt which contained the following note: “United Steelworkers of America District 7 UNION YES
√”5 Thus, the Respondent’s managers not only knew of Snead’s support for the Union, but they
also made a point to let Snead know that they knew. Hughes did not deny or explain this
implicitly threatening behavior regarding Snead’s open support for the Union.

Although Hughes admitted that Snead made his union sympathies obvious, Smith was
reluctant to admit that he knew of Snead’s union organizing activities. For example, Smith
several times attempted to downplay or discredit his knowledge by saying in a disparaging
manner that he had only received anecdotal reports of Snead’s union activities. If Smith truly
doubted the reliability of anecdotal reports, such doubts should have applied equally to discredit
the alleged basis for Smith’s discharge of Snead, which was the single anecdotal report of a
team leader.6 Nevertheless, the anecdotal reports of Snead’s union activities were reports
received from other managers, precisely the type and source of information upon which
managers often rely in making decisions. In spite of how Smith would characterize the source of
his knowledge of Snead’s union activities, Smith accepted the accuracy of these reports that
Snead was actively supporting the union at the Respondent’s Indianapolis plant.

On August 13, the employee organizing committee decided to start soliciting employees
to sign Union authorization cards. On August 18, Jason Shryock notified Pamela Elliott, as well
as other managers, that Snead had been advocating the Union with other employees in front of
the plant. Elliott, in turn, sent this information directly to Heinrich and Smith in an e-mail
designated as “high” importance, the highest such designation for e-mail transmissions at the
5 GC Exh. 20.
6 See GC Exh. 6.

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Respondent. Elliott also sent a copy of this e-mail to her supervisor in California. The
Respondent makes no claim that Snead was doing anything wrong in conducting organizing
activities in front of its plant. Nevertheless, it is significant that lawfully protected activities should
receive such immediate and high-level attention by the Respondent.

These e-mails between the Respondent’s managers, including the two highest
managers in the plant, confirm that the Respondent knew of Snead’s support for the Union. The
e-mails also show that as of August 18 or 19, about 1 week before Snead was discharged,
Snead’s active solicitation for the Union was brought to the attention of and was circulated
among the Respondent’s highest managers. Adding to the conclusion that the Respondent was
aware of and was concerned about Snead’s organizing activities is the fact that the e-mail
regarding Snead’s union activities was copied to the two highest ranking executives at the
Indianapolis plant, six shift supervisors, only one of whom supervised Snead, and a corporate
officer in California.

C. Discipline on May 30, 20027

On May 30, approximately 1 month after Snead began to openly support the Union,
Snead received the first discipline he had ever received in 4 years of employment at the
Respondent. According to Hughes, he observed Snead on May 23 making copies of documents
in a suspicious manner.8 The copier machine was in the cubicle area where managers had their
offices. Hughes claimed that he observed Snead put the original of the document he copied
between the other pages he had in his hand. This, according to Hughes, was suspicious.

Hughes’ demeanor on the witness stand, including tone of voice and eye contact,
demonstrated, and was consistent with, a person who does not like unions and does not like
persons who are members of unions. Moreover, he showed little regard for the oath he took as
a witness. For example, Hughes testified that he had no knowledge of the reason why Snead
was discharged. (Tr. 79.)9 However, prior to the present hearing, Hughes had been selected by
the Respondent to testify at the State hearing on Snead’s claim for unemployment
compensation benefits. At that hearing, Hughes testified under oath that the reason Snead was
discharged was because he had been out of his work area on August 25. Hughes attempted to
explain the inconsistency between these two, sworn statements by stating that his testimony at
the unemployment compensation hearing was only based on his review of the file that the
Respondent had given to him. However, Hughes never explained why he would have testified,
and did testify, at the present hearing that he had no knowledge as to why Snead was
discharged. This statement was simply not true, and Hughes must have known that it was not
true. And Hughes’ credibility is not enhanced by his attempt to impeach his own testimony at the
State unemployment compensation hearing.

The document that Hughes observed Snead copying on May 23 was work instructions
that Snead was copying to give to one of his six junior technicians. After Snead made the copy
7 Time-barred conduct may be considered to evaluate events that occurred within the
statutory period. Property Markets Group, Inc., 339 NLRB No. 31 fn. 2 (2003). Moreover,
Snead’s discipline on May 30 was the first he received at the Respondent and it was the only
other discipline that Heinrich relied on when he ordered that Snead be discharged. Accordingly,
the circumstances and propriety of the May 30 discipline may and should be considered in
evaluating the lawfulness of Snead’s discharge.
8 GC Exh. 7.
9 Tr. refers to the transcript of the hearing in this case.

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(he had only made one copy at the copier), Hughes approached him and asked to see what he
had made. Snead showed him and held out all six copies of the instructions for Hughes to see
or take if he wished. Hughes did neither. He simply asked Snead again and again to show him
what Snead had copied. On every occasion, Snead complied with Hughes’ request. Hughes
was still not satisfied, possibly because he hoped to find nonwork-related materials in the
documents, and there were none.

The Respondent has no policy regarding employee use of its copier machines. Heinrich
testified that he expected the copiers would only be used for company business. However, there
is no evidence that this expectation was communicated to the Respondent’s employees or that
any other rules were ever imposed on or communicated to the employees. Troy Robson, a
configuration technician, confirmed that he is not aware of any rule regarding use of the copier.
Also, there was no evidence that any employee had ever been stopped by a manager to inspect
something the employee had just copied. Yet, on May 30, less than 1 month after Snead began
openly supporting the Union, he became the first and only employee, insofar as the evidence in
this case discloses, who was ever stopped by a manager to inspect what the worker had
copied.

Since the Respondent has no rules regarding employee use of the copiers, it is unlikely
that Hughes would have been so closely observing Snead as to see him placing the document
that he copied at the machine into the middle of the documents he held in his other hand. There
was no reason for Hughes’ to be observing Snead at all, let alone this closely. On the other
hand, if Hughes’ had been watching Snead this closely, which I do not accept, the possible, if
not likely, reason that springs to mind is Snead’s recent and open support for the Union and
Hughes’ demonstrated hostility towards Snead’s union activities.

I reject Hughes’ claim that Snead acted suspiciously. I do not credit Hughes’ description
of the incident, and I do credit Snead’s description of the incident. The evidence shows that
Snead did not act suspiciously. Moreover, there was no legitimate reason for Hughes to stop
Snead and ask to see the document he had just copied. The only plausible reason, a reason
consistent with Hughes’ demeanor on the witness stand and with Hughes’ threatening actions in
staring at Snead’s prounion shirt and pointing to the prounion placard on Snead’s car, is that
Snead had recently begun openly supporting the Union, and Hughes was hoping to find that
Snead had copied nonwork-related documents so that Hughes would have a supposedly proper
reason to discipline Snead. Hughes was not even Snead’s supervisor at this time. Hughes
wanted to discipline Snead because of Snead’s open support for the Union. However, there
were no such documents, so Hughes decided to construct another reason to discipline him–
Snead’s alleged insubordination in refusing to show Hughes what he had just copied. But Snead
did show the document to Hughes. Moreover, Snead several times offered all the documents in
his hand to Hughes, but Hughes refused to take them.

Hughes notified the top three management officials at the Respondent concerning his
alleged encounter with Snead on May 23. Hughes and Smith decided to discipline Snead by
suspending him for 3 days, placing him on probation for 1 year, and issuing a final warning to
him. Even if one were to credit the insubordination claim put forward by the Respondent at the
hearing, which I do not, this discipline seems unduly harsh for the alleged offense. Moreover,
Snead curiously was issued a “final” warning, despite the fact that it was also his first
disciplinary warning.

The discipline of Snead is somewhat unique in the Respondent’s facility of
approximately 1500 employees. The Respondent represented at the hearing that from January
1, 2002 to the present, it had records reflecting the discipline of only four employees in the

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entire facility that had received discipline for any of the reasons for which Snead was
discharged.10 The infractions were for unauthorized absences from work, leaving the work area
without approval, and failing to pay attention to work. There were no infractions dealing with the
use of the copier machine. Indeed, there is no evidence that the Respondent has ever
disciplined any employee for any actions involving the copier machine. This absence of
discipline is also consistent with the Respondent’s failure to have or communicate any rules
regarding the use of the copier machine.

D. Termination on August 27, 2002.

As noted above, on August 13, the employee organizing committee decided to start
soliciting employees to sign union authorization cards. Snead signed a card on that date and
started soliciting other employees to sign cards. On August 18 and 19, Snead’s organizing
efforts were noted by management and were communicated via e-mail to shift supervisors, to
the highest management officials at the plant, and to corporate personnel in California. Indeed,
Snead’s organizing activities were of such interest to the Respondent’s management that
Shryock, who had observed Snead soliciting employees for the Union, sent his e-mail to Elliott
and other managers on Sunday morning at 6:18 a.m., just before he left for vacation.

On August 27, Smith, after receiving instructions from Heinrich, terminated Snead’s
employment. The events that precipitated the termination occurred on Sunday evening, August
25, just prior to the start of Snead’s shift. Mark Hancock reported in an e-mail of August 27 to
his supervisor, Rob Haverly, that Snead had been seen talking to two employees in the OBA
area on the previous Sunday night, and that he had been talking to these two employees about
signing a union authorization card. Hancock’s e-mail did not disclose how he learned of or heard
about this allegation. Haverly forwarded Hancock’s e-mail to Elliott. Elliott, in turn, forwarded the
e-mail to Heinrich and Smith. After receiving the e-mail, Heinrich notified Smith to discharge
Snead for failure to follow instructions.

This entire process was handled with great dispatch. Hancock sent his e-mail at 6:36
a.m. and by 8:54 a.m. Heinrich had ordered Smith to terminate Snead. Moreover, within 6
minutes of the time that Heinrich received the e-mail from Elliott, he sent an e-mail to Smith
directing him to terminate Snead. Heinrich conducted no investigation of the allegations in
Hancock’s e-mail. Indeed, conducting an investigation of the allegations was apparently so
unimportant to Heinrich that he could not remember whether he talked to Smith and Elliott
before or after he ordered Smith to discharge Snead.

If Heinrich had conducted an investigation, he would have discovered that Snead was in
the OBA area before the start of his shift, not while he was working. Heinrich would also have
found out that Snead had a proper reason for being in the OBA area because he was looking for
his supervisor. Snead wanted to talk to his supervisor before starting work because many
employees had already been sent home,11 and Snead wanted to find out if he should report for
work that day. Snead did find his supervisor during his search, and his supervisor told him that
there was no work and there was no need for Snead to clock in.

Although Snead did briefly talk to two employees while he was in the OBA area,
conversations like this between and among employees as well as managers were common.
10 See GC Exhs. 12-15.
11 Occasionally, employees or entire shifts would be sent home if there was not sufficient
work at the plant.

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Snead was also careful to not disrupt a worker who was busy, and the two employees he talked
to while he was in the OBA area were not busy. The fact that these workers were not busy is
also consistent with the Respondent’s acknowledgement that it had sent many employees home
during that shift because it was not busy at this time.

The Respondent has no rule prohibiting employees from talking amongst themselves or
with other employees as they walk through the plant. It was a common practice in the
Indianapolis plant for employees to talk to other employees while they moved about the plant.
And such conversations typically involved subjects having nothing to do with work. In particular,
employees would often talk to other employees about their families and, especially, sports as
they walked through the plant. Managers did the same, including Shryock and Smith. The
conversations would generally last several minutes, sometimes lasting as long as 15 or 20
minutes. Employees frequently stopped by Snead’s work area and talked to him. Smith himself
had engaged an employee in a personal, nonwork-related conversation, in the employee’s work
area, lasting approximately 45 minutes just a few days before the hearing in this case.

Many employees, including technicians, are required to leave their work area and walk
to other areas of the plant in order to do their job. Snead was a technician, and in order for him
to perform his job of assembling computers and servers, it was necessary for him to go to other
areas of the plant to obtain the hardware he needed to make the proper assembly. Many of the
Respondent’s employees, including Snead, simply could not do their jobs without leaving their
work areas and going into other work areas. It was common for any number of employees to
walk, and be required to walk, to various other areas of the plant throughout the typical workday.

While Snead was working on August 27, his supervisor told him to report to Smith’s
office. When Snead arrived, Smith told him he was being terminated for being out of his work
area on Sunday night, and the matter was not open for discussion. Smith handed Snead a
termination memorandum. (GC Exh. 8.) The memorandum confirmed, in part, what Smith had
just told Snead as to why he was being terminated. The memorandum stated: “On Sunday,
August 25, you were again observed out of your assigned work area conducting personal
business.” Snead attempted to explain to Smith that he could not have been out of his work
area on Sunday night because he was not even working that night, but Smith refused to discuss
the matter or even to listen to Snead. Smith and Snead’s supervisor then escorted Snead out of
the building.

Smith claimed at the hearing in this case that the offense for which Snead was
discharged had actually occurred on August 26. (Tr. 49.) This shifting explanation is not
credible. The initial e-mail that reported Snead’s presence in the OBA area stated that this had
occurred on Sunday night, which was August 25. This date was repeated in the termination
memorandum. Smith refused to even consider Snead’s explanation on August 27 that he was
not working on August 25. However, by the time of the hearing, the Respondent was aware that
Snead had not worked that night and must have appreciated the significance of this fact, viz.,
that Snead was terminated for doing something he could not have done. Accordingly, Smith
testified that Snead’s actions occurred on August 26. This testimony is not credible and is
rejected.

The Respondent claims that it advised its workers, in meetings held by lower level
supervisors, that employees were not permitted to walk around the plant. However, none of the
Respondent’s employees, except managers who testified at the hearing, were aware of such a
rule. The Respondent admits that this “rule” was not in writing. The credible evidence shows
that there was no such rule at the Indianapolis plant. Moreover, even if there were such a rule,
there was no enforcement of such a rule because the workers continued to walk throughout the

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plant as they had done in the past and as they were required to do in order to perform their jobs.

This finding is corroborated by the lack of records showing enforcement of any such rule.
For the period from January 1, 2002 to the time of the hearing, the Respondent disciplined only
one worker, Josh Sears, for being out of his work area. Moreover, this single discipline also
confirms the relative unimportance of the offense because Sears, who had been repeatedly told
to return to his work area, only received a letter of concern for his conduct.

On the other hand, it is reasonable to assume that workers were not free to leave their
work areas and roam the plant at will. It is also reasonable to assume that workers were
expected to be in their work areas unless they had a work-related reason to be elsewhere.
Indeed, both Smith and Hughes identified these limitations on the rule. However, Heinrich, who
claimed to have instituted the rule when he took over command of the plant in April 2002, did
not identify any limitations on the rule. Because the rule articulated by Heinrich defies common
sense, because such a rule would prevent many of the Respondent’s employees from
performing their jobs, and because the Respondent’s workers continued to leave their work
areas for work-related reasons, Heinrich’s testimony regarding the rule is not credible.

Nevertheless, accepting the existence of a rule prohibiting workers from being in other
areas of the plant for nonwork-related reasons, the discipline for violating such a rule can only
be speculated because of the Respondent’s failure to consistently or commonly enforce such a
rule. Moreover, given the widespread practice of employees walking throughout the plant, as
well as the slight “discipline” administered to Sears who had been repeatedly out of his work
area, any discipline for violating such an unwritten rule would likely not include termination,
except possibly in the most extreme and egregious case.

The termination memorandum given to Snead also charged him with conducting
personal business. However, the Respondent has no rule prohibiting employees from soliciting
or conducting personal business. In fact, employees frequently and openly solicit for various
purposes in the workplace. Employee solicitations have involved such diverse purposes as local
schools, the Girl Scouts, help for families of employees, anniversaries, and personal
solicitations when employees have items for sale. Solicitations are made during working hours,
in the plant, and in the presence of managers. Indeed, managers also participate in these
solicitations. Thus, Snead was charged with doing something that had been an accepted
practice and was commonly and openly done by employees and managers.

The termination memorandum describes the reason for Snead’s termination as follows:
“You are hereby terminated for knowingly violating established procedures and failure to follow
work rules and instructions from your supervisor.” As noted above, the credible evidence fails to
show that the Respondent had any established procedure prohibiting a worker from being out of
his work area or from conducting personal business. In fact, the evidence shows just the
opposite. The established procedure in the plant was that employees were permitted to walk
throughout the plant on work-related matters and were permitted to conduct personal business.

On April 18, Hughes verbally counseled Snead for leaving his work area. In accordance
with standard policy, Hughes made a memorandum of that counseling. (Tr. 312; R Exh. 3.) In
addition, Smith claims that he counseled Snead on June 27 about e-mails Snead had sent to
Elliott, and there is evidence that, during that counseling, Smith covered items in the May 30
discipline, including that Snead should not be out of his work area. (GC Exh. 10.) Detracting
from this evidence is the fact that Snead’s May 30 discipline did not concern him being out of his
work area. Thus, if Smith counseled Snead on June 27 about the matters covered in the May 30
discipline, then he did not counsel Snead on being out of his work area. Moreover, Smith did not

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testify that he counseled Snead about being out of his work area. Accordingly, I find that Smith
did not counsel Snead on June 27 about being out of his work area.

Smith claims that other supervisors counseled Snead about being out of his work area.
However, none of these alleged counseling sessions were documented, in spite of the
Respondent’s standard policy of documenting such sessions. Accordingly, Smith’s claim that
other supervisors, besides Hughes, counseled Snead on being out of his work area is not
credible since it is contradicted by Company policy and is disputed by Snead.

Hughes also claims that he counseled other workers for being out of their work areas,
but that he did not document these occasions. (Tr. 320.) It is significant, then, that Hughes did
document the only time he allegedly counseled Snead for being out of his work area. This
disparate treatment of employees indicates that Hughes had an ulterior, unexplained purpose
for treating Snead differently from other workers.

Also, the mere fact that Hughes counseled Snead on April 18 for being out of his work
area should have no impact on Smith’s evaluation of Snead’s actions on August 25, unless
Snead had no work-related reason for being out of his work area and this was known by
Smith.12 But neither of these conditions is met in this case. First, Snead did have a work-related
reason for being in another area of the plant on August 25 because he was properly looking for
his supervisor to find out if he should report for work. (And, as it turned out, his supervisor told
him that he should not report because there was not sufficient work at the plant.) More
important, Snead was not even working when he was seen in the OBA area. Second, Smith did
not know if Snead had a work-related reason for being in the OBA area or if Snead was even
working at that time because Smith refused to investigate the charge and refused to even listen
to Snead when he discharged Snead.

In any event, whether Snead was counseled by Hughes or Smith or by anyone else is
irrelevant to Heinrich’s decision to terminate Snead because Heinrich admitted that he did not
know whether he was aware of such warnings when he issued the order to fire Snead.
Heinrich’s decision was based, according to him, on Snead’s May 30 discipline and the e-mail of
August 27, not on any other alleged warnings to or actions by Snead.

E. Comparable Employees

As noted above, the Respondent’s records show that only four employees were
disciplined between January 1, 2002 and July 2003 for any of the reasons for which Snead was
discharged. Only two of these occurred before Snead was terminated. None of the four
disciplines involved a termination.

The four disciplines produced by the Respondent are as follows. Kristi Benberry was
suspended for 1 day because of insubordination and leaving the work floor to talk on the
telephone. Jason Bybee received a written warning for excessive absenteeism and failure to
complete his work. Josh Sears received a letter of concern for talking with others after being
repeatedly told to return to his work area. Christopher Wheatley, who was disciplined after the
charges in the present case were filed, was excluded from certain benefits because of taking an
unscheduled smoking break. Significantly, Benberry and Sears, whose actions most closely
resemble what the Respondent claims Snead had done on August 25, were both given
12 This is because the Respondent, at least, had no rule prohibiting a worker from being out
of his work area for work-related reasons.

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warnings to return to their work areas before discipline was imposed. Snead was given no such
warning on August 25.

The dearth of comparable situations shows that the Respondent either had no rule
prohibiting what Snead was accused of doing on August 25 or, if there were such a rule, even a
rule prohibiting employees from walking around the plant for nonwork-related reasons, the
Respondent elected not to enforce it. The experience of technician Troy Robson, an open union
supporter, is instructive.

In approximately January 2003, Robson’s supervisor instructed him to remain in his work
area. However, Robson, like Snead, was required to get parts from other locations in the plant
in order to perform his work. After about 1 week, Robson met with his and two other
supervisors. He told them he could not do his job under this new rule that was applicable only to
him. He called his supervisor an idiot, he told his supervisor to leave him alone and to stay the
hell away from him. Robson then told the supervisors that they could write him up for
insubordination, he did not “give a shit. Better yet, you can fire me so I could give a shit less.”
(Tr. 218.) The supervisors did not say anything. Robson returned to his work area and resumed
working as he had in the past, that is, he resumed his previous practice, and the practice of all
other technicians, of leaving his work area whenever it was work-related, and of talking to other
employees when he was in other areas of the plant. Robson was not cited for insubordination
nor given any discipline for this outburst. Indeed, management never mentioned his outburst to
him.

F. Analysis

Under the test set forth in Wright Line, when the Respondent is alleged to have violated
Section 8(a)(1) and (3) in the discharge of an employee, the General Counsel has the burden of
proving by a preponderance of the evidence that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision. To meet this burden, the General
Counsel must offer credible evidence of union or other protected activity, employer knowledge
of this activity, and the existence of antiunion animus. Briar Crest Nursing Home, 333 NLRB 935
(2001). Once unlawful motivation is shown, the burden shifts to the Respondent to prove its
affirmative defense that the alleged discriminatory conduct would have taken place even in the
absence of the protected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). If the employer’s stated motive is found to be false, the
circumstances may warrant an inference that the true motive is an unlawful one. Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).

The evidence demonstrates that the Respondent had knowledge of Snead’s union
activities. Moreover, the e-mail sent by Hancock that reported Snead’s presence in the OBA
area on August 25, and which was the basis for Heinrich’s decision to discharge Snead, states
that Snead had solicited two employees to sign union cards. Of course, if the Respondent did
not allow personal business or soliciting to occur in the workplace, then the purpose of Snead’s
actions would be irrelevant. But the purpose was important to the Respondent or there would
have been no need for Hancock to mention union activity. Hancock also added the apparently
gratuitous comment in his e-mail that “there appears to be a big push now toward the Union
since new folks have been hired.”13 Such a comment is and should be irrelevant to whether
Snead had engaged in any misconduct. However, the comment was not irrelevant to how Smith
13 GC Exh. 6.

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and Heinrich would deal with the matter. Indeed, the comment was part and parcel of Smith’s
and Heinrich’s motive in the quick decision after Hancock’s e-mail to discharge Snead.

The Respondent contends that there is no evidence of antiunion animus. However,
motive and union animus may be, and often are, proven through indirect and circumstantial
evidence. Sahara Las Vegas Corp., 284 NLRB 337 (1987). All of the circumstances in the case
should be considered in making this determination. Among the individual factors that the Board
has found to support an inference of animus are (1) suspicious timing, (2) the abruptness of the
termination, (3) failure to adequately investigate the alleged misconduct, (4) disparate treatment
of the discharged employee, (5) shifting or inconsistent explanations, and (6) false or pretextual
reasons given to explain the Respondent’s action. Medic One, Inc., 331 NLRB 464, 475 (2000);
Dynabil Industries, 330 NLRB 360 (1999); Lampi LLC, 327 NLRB 222 (1998); and Master
Security Services, 270 NLRB 543, 552 (1984).

Suspicious timing alone may be sufficient to establish that antiunion animus was a
motivating factor in a discharge decision. Schaeff Inc., 321 NLRB 202, 217 (1996); NLRB v.
Rain Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). The timing of the Respondent’s actions
against Snead strongly and singularly supports an inference of animus. The first time Snead
received any discipline during his 4 years of employment at the Respondent occurred within 1
month of his initial and open support for the Union. Snead’s next discipline was his last, and this
occurred within 2 weeks after the Respondent’s two highest managers at the plant, the very
managers who decided and carried out Snead’s termination, became aware that Snead had
begun soliciting employee signatures for union authorization cards. Such timing between
protected activity and termination is a highly significant indication of an unlawful, discriminatory
motive for the termination.

The abruptness of a discharge is persuasive evidence of motivation. Schaeff Inc., supra;
NLRB v. Sutherland Lumber Co., 452 F.2d 67, 69 (7th Cir. 1971). The Respondent acted
beyond abruptly in terminating Snead. Six minutes after Heinrich learned that Snead had been
out of his work area, or at least this is what Heinrich thought he had learned, Heinrich directed
Smith to discharge Snead. And the lack of any investigation into the alleged reasons for
Snead’s discharge necessarily flows from this extreme abruptness.

The Board has consistently held that a Respondent’s failure to conduct a full and fair
investigation of an employee’s alleged misconduct is evidence of discriminatory intent. Firestone
Textile Co., 203 NLRB 89, 95 (1973). Here, not only was no investigation conducted, but
Heinrich was so unconcerned with making an investigation that he could not even remember
whether he had talked to any of his subordinate managers before directing that Snead be
terminated. The timing and the manner in which Snead was discharged compels the conclusion
that Snead was terminated because of his union activity, and the Respondent simply did not
seem to care whether or not the discharge was supportable. In fact, it was not.

The Respondent’s failure to investigate whether Snead had been out of his work area,
and if so, why, is proof that it was not concerned with what such an investigation would disclose.
In turn, this proves that the Respondent’s reason for the discharge, however that reason is
characterized, was not the true reason for the discharge.

The Respondent treated Snead differently from other employees. There is no evidence
that any of the Respondent’s managers ever stopped any other employee to inspect what that
employee had copied at the copier. The Respondent treated Snead differently from other
employees who had left their work areas for nonwork-related reasons. Indeed, if the
Respondent had any applicable rule, it was a rule that required working employees to have a

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work-related reason before going to other areas of the plant. On August 25, Snead was not
even working; moreover, he did have a work-related reason for going to another area of the
plant. In addition, the Respondent has no rules prohibiting solicitations, and employees and
managers commonly participated in solicitations. However, when Snead did this on August 25,
briefly and at a time when most of the Respondent’s workers had already been sent home, he
was terminated. The only difference between what Snead did on August 25 and what other
employees and managers commonly did was that Snead was soliciting signatures for the Union.

The e-mail that reported Snead had been out of his work area stated that this occurred
on Sunday night. The e-mail is dated Tuesday, August 27. (GC Exh. 6.) Sunday was the 25th.
In the memorandum reflecting Snead’s discharge, the date of Sunday, August 25 is repeated.
When Smith handed this memorandum to Snead, Snead attempted to refute the charge by
explaining he was not working on August 25. Snead would not listen to him or allow him to
explain. At the hearing, Smith, now realizing that Snead had not worked on August 25, and
therefore could not have been out of his work area on August 25, testified that the event for
which Snead was terminated actually occurred on August 26. This inconsistent, incredible
testimony and the shifting explanation further weaken Smith’s credibility, and provide
persuasive, independent evidence of an unlawful, discriminatory motive for the termination.

The reason given by the Respondent for its discharge of Snead was false, both because
Snead had not committed the misconduct with which he was charged and because the
Respondent did not believe or care whether he had. The Respondent knew it had no rule
prohibiting solicitations, but it discharged Snead, at least in part, because he solicited for the
Union. The Respondent knew that its workers could leave their work areas for work-related
reasons, but it did not investigate whether Snead was even working, let alone whether he had a
work-related reason for being in another area. It did not investigate because it had already
decided to terminate Snead because of his support for the Union.

My determination that the reasons advanced by the Respondent for its discharge of
Snead are false and a pretext for its actual motive in taking that action necessarily means that
the asserted reasons were not relied on. Accordingly, there is no need to further address these
reasons because a finding of pretext “leav[es] intact the inference of wrongful motive
established by the General Counsel.” Limestone Apparel Corp., 255 NLRB 722 (1981).
Alternatively, because the Respondent’s reasons for discharging Snead are unsupportable
under the standards it normally applies to its other employees, I conclude that the Respondent
has not proven that it would have taken the same action in the absence of Snead’s protected
activity. Hospital San Pablo, Inc., 327 NLRB 300 (1998).

For all of the foregoing reasons, I conclude that the Respondent discriminated against
David Snead and violated Section 8(a)(3) and (1) of the Act when it discharged Snead because
of his protected activities.

Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. The Respondent violated Section 8(a)(1) and (3) by discharging its employee, David
Snead.

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Remedy

Having found that the Respondent has engaged in certain 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.

Having found that the Respondent unlawfully discharged David Snead, I shall order that
the Respondent offer him reinstatement and make him whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of discharge to the date of a proper offer
of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14

ORDER

The Respondent, Hewlett Packard Company, its officers, agents, successors, and
assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any employee for supporting
the United Steel Workers of America, AFL–CIO, CLC, or any other union.

(b) In any like or related manner interfering with, restraining, or coercing its
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) Within 14 days from the date of this Order, offer David Snead full
reinstatement 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.

(b) Make David Snead whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him in the manner set forth in the remedy section of the
decision.

(c) Within 14 days from the date of this Order, remove from its files any reference
to the unlawful discharge of David Snead, and within 3 days thereafter, notify him in writing that
this has been done and that the discharge will not be used against him in any way.

(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
14 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 purposes.

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personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.

(e) Within 14 days after service by the Region, post at its facility at Georgetown
Road, Indianapolis, Indiana copies of the attached notice marked “Appendix.”15 Copies of the
notice, on forms provided by the Regional Director for Region 25, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since August 27, 2002.

(f) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

Dated, Washington, D.C., November 5, 2003.

-------------------------------------
Joseph Gontram
Administrative Law Judge

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 Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

15 If this Order is enforced by a judgment of the United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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WE WILL NOT discharge or otherwise discriminate against any of you for supporting the United
Steel Workers of America, AFL–CIO, CLC, 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, within 14 days from the date of the Board’s Order, offer David Snead full
reinstatement 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.

WE WILL make David Snead whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of David Snead, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the discharge will not be used against him
in any way.

Hewlett Packard Company

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 N. Pennsylvania Street, Room 238, Indianapolis, IN 46204-1577
(317) 226-7382, Hours: 8:30 a.m. to 5:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (317) 226-7413.