Norris/O'Bannon

National Labor Relations Board - Board Decisions

Jul 10, 1992

307 N.L.R.B. 1236 (N.L.R.B. 1992)

1236
307 NLRB No. 183
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order to require the
Respondent to remove from its files any reference to the unlawful
discharge of Alfred Wells on July 13, 1990. We shall also substitute
a new notice to employees.
3 In finding that the Respondent unlawfully discharged Wells, we
do not rely on the judge’s finding that the Respondent shifted its de-
fense during the hearing from that expressed in the termination letter
to Wells.
4 Based on the credited testimony of Alfred Wells, the judge found
that Wells received regular wage increases throughout his employ-
ment with the Respondent. Wells testified that he was hired at $9
an hour and, after his 6- to 8-week probationary period, was raised
to $12 an hour. Thereafter, he received wage increases ‘‘every 60
days or so.’’ At the time of his termination, Wells was earning
$13.07 an hour. The Respondent excepted to the judge’s finding, but
failed to produce evidence to support its assertion that Wells did not
receive regular wage increases. In light of the Respondent’s failure
to do so, we adopt the judge’s finding, based on Wells’ unrebutted
testimony, that Wells received regular pay increases.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
Norris/O’Bannon, a Dover Resources Company and
International Association of Machinists and
Aerospace Workers, AFL–CIO. Case 17–CA–
15134
July 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 18, 1992, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
We agree with the judge’s finding that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by dis-
charging employee Alfred Wells on July 13, 1990, be-
cause of his union activity.3 The Respondent contends
that Wells was discharged on July 13 for unsatisfactory
performance. In its termination letter to Wells, the Re-
spondent cited the following as the basis for his dis-
charge: a verbal warning about his attitude around the
first of the year, a written warning for attitude and in-
ability to accept corrective discipline on April 24,
1990, and exhibiting belligerence when asked by
Danny Chambers to grind some chasers on July 13.
We note that Wells had been repeatedly admonished
about his belligerent attitude and failure to service the
operators promptly since at least as early as February
1989 when he received a so-called final written warn-
ing. It is undisputed, however, that each instance of
discipline for these problems, even after the ‘‘final’’
warning, was limited to a verbal or written warning. At
the time of his discharge, Wells had attained the top
pay level for his classification.
In its exceptions, the Respondent claims that the fact
that it could have, but did not, fire Wells when it had
other opportunities is ‘‘strong evidence of a lack of il-
legal motive.’’ We disagree.
The record establishes that the Respondent was well
aware of Wells’ performance problems. Until July 13,
the Respondent’s reaction to these problems was to
issue him warnings, but to continue to employ him
with no denial of pay increases.4 On July 13, however,
the Respondent’s attitude toward Wells suddenly
changed and it chose to discharge him for conduct
similar to that which he had engaged in since at least
February 1989. There is no apparent reason for this ab-
rupt change except for the fact that the Respondent
learned that Wells had arranged for the employees to
meet with union representatives on July 13. Thus, the
inference is fully warranted that it was Wells’ in-
creased union activities that led the Respondent to ter-
minate Wells, not his job performance. Accordingly,
we agree with the judge that the Respondent did not
meet its burden under Wright Line5 of showing that
Wells would have been discharged on July 13, 1990,
even in the absence of his union activities.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Norris/O’Bannon, a Dover Resources Company, Tulsa,
Oklahoma, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Remove from its files any reference to the un-
lawful discharge and notify Alfred Wells in writing
that this has been done and that the discharge will not
be used against him in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
1237NORRIS/O’BANNON
1 Unless stated otherwise, all dates occurred in 1990.
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 pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting International Asso-
ciation of Machinists and Aerospace Workers, AFL–
CIO or any other labor organization.
WE WILL NOT interrogate you about your activities
on behalf of any labor organization.
WE WILL NOT maintain rules that prohibit employees
from soliciting for purposes protected by Section 7 of
the Act during nonworking time or from distributing
literature for purposes protected by Section 7 of the
Act during nonworking time in nonworking areas of
our Tulsa, Oklahoma facility.
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 Alfred Wells immediate and full re-
instatement 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 privi-
leges previously enjoyed and WE WILL make Alfred
Wells whole for any loss of earnings and other benefits
resulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL remove from our files any reference to the
discharge of Alfred Wells and notify him in writing
that this has been done and that the discharge will not
be used against him in any way.
WE WILL rescind or modify the rules appearing in
our employee handbook so that you are not prohibited
from soliciting for purposes protected by Section 7 of
the Act during nonworking time and so that you are
not prohibited from distributing literature for purposes
protected by Section 7 of the Act during nonworking
time in nonworking areas of our Tulsa, Oklahoma fa-
cility and WE WILL distribute to each of you a copy of
the employee handbook with the rules so rescinded or
modified.
NORRIS/O’BANNON, A DOVER RESOURCES
COMPANY
Francis Arnold Molenda, for the General Counsel.
Richard L. Barnes (Evans, Johnson & Barnes), of Tulsa,
Oklahoma, for the Respondent.
Lou Brogna, of Dallas, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Tulsa, Oklahoma, on May 22, 1991. On
February 14, 1991, the Regional Director for Region 17 of
the National Labor Relations Board (the Board) issued a
complaint and notice of hearing, based on an unfair labor
practice charge filed on July 31, 1990,1 and amended on
September 4, alleging violations of Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act). All parties
have been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs. Based upon the entire record, on the briefs that
were filed, and on my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Norris/O’Bannon, a Dover Resources
Company (Respondent), has been a corporation with an of-
fice and place of business in Tulsa, Oklahoma, where it en-
gages in the manufacture of subsurface pumps and butterfly
valves. In the course and conduct of those business oper-
ations during the 12-month period ending January 31, 1991,
Respondent purchased and received at its Tulsa facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly from points outside of the State of Oklahoma and, fur-
ther, sold and shipped from its Tulsa facility products, goods,
and materials valued in excess of $50,000 directly to points
outside the State of Oklahoma. Therefore, I conclude, as ad-
mitted in the answer, that at all times material Respondent
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, International Association of Machin-
ists and Aerospace Workers, AFL–CIO (the Union) has been
a labor organization within the meaning of Sectioin 2(5) of
the Act.
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
At all times material prior to November Respondent main-
tained two rules, among the miscellaneous ones in effect at
its Tulsa facility, that are alleged to have violated Section
8(a)(1) of the Act:
9. No soliciting or selling on Company premises at
any time without prior official approval of the Com-
pany.
16. No distribution of literature or printed matter of
any kind in any work area during work periods any-
where on the Company premises, posting notices, signs,
or writing in any form anywhere on the Company
premises unless specifically authorized to do so by the
Company.
Although not conceding that these rules were unlawful, Re-
spondent argues that it posted a notice disavowing their con-
tinued maintenance and, further, that they were changed in
the course of attempting to settle the allegations pertaining
to them. Accordingly, urges Respondent, those allegations in-
volve a subject that has been rendered moot.
The primary allegation in this case pertains to the termi-
nation of first shift tool and cutter grinder Alfred Wells on
July 13. By that date, Wells had been employed by Respond-
ent for almost 3 years. During that period, he had received
both verbal and written warnings concerning his ability and
willingness to work with other employees. Respondent ar-
gues that his termination had been nothing more than an out-
growth of that misconduct, culminating in yet another inci-
dent of it during the morning of July 13. The General Coun-
sel, however, contends that the termination had resulted from
Wells’ involvement in an organizing campaign among Re-
spondent’s employees that had led to a meeting between
them and officials of the union scheduled for late afternoon
on July 13.
Finally, the complaint alleges that Respondent independ-
ently violated Section 8(a)(1) of the Act when, after Wells
had been terminated on July 13, then-Day Shift General
Foreman Ray Chambers, an admitted statutory supervisor and
agent of Respondent, had interrogated an employee con-
cerning the union activity of employees. For the reasons set
forth post, I conclude that a preponderance of the evidence
supports the complaint’s allegations that Respondent unlaw-
fully discharged Wells and, further, that it unlawfully interro-
gated an employee concerning union activity and maintained
unlawful no-solicitation and no-distribution rules.
B. Findings of Fact
Wells began working for Respondent as a second-shift tool
and cutter grinder on July 28, 1987. After completing his
probationary period, he continued performing that work on
that shift, under the direct supervision of then-Second Shift
General Foreman Dennis McCully, an admitted statutory su-
pervisor and agent of Respondent at all times material, until
February 19. On that date he was transferred to the first shift
where he worked as a tool and cutter grinder, initially under
the direct supervision of then-Leadman Johnny Lee Six and,
after March 19, under the direct supervision of Small Parts
Leadman Rodney Eastham, an admitted statutory supervisor
and agent of Respondent at all times material. As set forth
in its employee handbook, until the top level of pay classi-
fication is reached, Respondent reviews each employee’s per-
formance every 2 months to determine whether an increase
is warranted. Under that system, Wells’ pay rate had pro-
gressed steadily to the top level while employed by Respond-
ent. So far as the evidence shows, he was never denied an
increase on the occasion of any one of those 2-month per-
formance reviews. However, on Friday, July 13, he was
given a letter, signed by then-Day Shift General Foreman
Ray Chambers, an admitted statutory supervisor and agent of
Respondent at all times material, that reads, inter alia:
Al you are being terminated for unsatisfactory per-
formance effective today, July 13, 1990. You are being
paid for your time worked from July 9 through today,
as well as your vacation.
Since the first of the year you have been verbally
disciplined about your attitude as it relates to job per-
formance, and on April 24, 1990 you were given a
written warning for attitude and inability to accept cor-
rective discipline following an incident on April 23
when I talked with you about spending too much time
on the phone.
This morning when approached by Danny Chambers
to grind some chasers, you exhibited belligerence, and
Danny was forced to get it taken care of through an-
other person. This kind of belligerence has resulted in
operators being reluctant to come to the tool room for
tools and service. You have a documented history of
unsatisfactory performance from the date of your hire
through the inability to correct this belligerence and ac-
cept corrective action. This cannot be tolerated in a
service department.
Credited and corroborated testimony shows that Wells had
been regularly advocating unionization of Respondent’s em-
ployees since at least the late summer of 1989. But, so far
as the record discloses, not until the following June did
Wells proceed beyond the stage of merely discussing the
subject with other employees. Early that month he spoke
about unionizing with Gerald Williams, who formerly had
worked as a maintenance man for Respondent but who, by
then, was working for another employer. Williams mentioned
that he worked with the Union’s financial secretary, Clarence
‘‘Popeye’’ Gobdard, and would ask Gobdard to call Wells.
On June 22 Gobdard did so. On June 28 the two of them
met at the Union’s office where Gobdard explained the orga-
nizing process and Wells signed an authorization card. Then,
during a telephone conversation on July 9, the two men
agreed to conduct a meeting at Hardee’s Restaurant after
work on Friday, July 13, between the Union’s officials and
whichever employees Wells wanted to attend.
Following that telephone conversation Wells spoke with
some employees concerning the meeting. He testified that he
had telephoned general machinist Lloyd McCracken and
then-painter Robert Montgomery to inform them about it and
to encourage them to attend it. He testified that he also spoke
with employees Paul Jarvis and Kevin Littrel during lunch
period while in the lunchroom of Respondent’s Tulsa facility.
Wells further testified that during that lunchroom conversa-
tion 15 to 20 other people had been present, including
1239NORRIS/O’BANNON
2 During cross-examination Wells conceded that he had stated in
a prehearing affidavit that no supervisors had been present on this
occasion. Yet, while it is accurate that Wells did not always appear
to be testifying with complete candor, it cannot be said that this par-
ticular statement in his affidavit contradicts his testimony concerning
the three leadmen’s presence in the lunchroom that day. When he
initially testified concerning the subject, Wells was asked if any su-
pervisors had been present in the lunchroom and he answered,
‘‘Well, I don’t know. There was a lead man in there. I don’t know
if you call them supervisors or not.’’ Indeed, there was dispute con-
cerning the supervisory status of leadmen prior to the hearing. While
admitting in its Answer that all other alleged officials were statutory
supervisors, Respondent denied that Eastham and Danny Chambers,
the only leadmen specified in the complaint, could be so character-
ized. Only after the hearing opened did Respondent amend its an-
swer to eliminate that denial. Accordingly, given the uncertainty as
to leadmen’s supervisory status prior to the hearing, it cannot truly
be said that an inconsistency exists because Wells testified that
leadmen had been present in the lunchroom after having stated in
his affidavit that no supervisors had been present there when he dis-
cussed the Union’s meeting with Jarvis and Littrel.
3 Montgomery was uncertain whether he had been told this by
Jimmy Warren before or after Wells’ termination. However, War-
ren’s use of the future tense—‘‘going to be a meeting’’—shows that
Warren had to have said this to Montgomery by July 13, at the lat-
est.
4 Respondent does not argue that Wells had improperly been on
the telephone on this particular occasion. However, it did present
evidence that on other occasions Wells had remained talking on the
phone, ignoring machinists and other employees who sought toolcrib
service. Yet, Eastham admitted that, after having come to day shift,
there had been occasions when Wells, as well as Six, needed to use
the phone, such as whenever toolcrib attendant Richard Hughes was
absent and it was necessary to check on a traveling requisition or
call a vendor, or whenever Kathy Taylor, apparently a buyer, was
busy or unavailable. Further, McCully testified that when Wells had
been on second shift, he had worked alone in the toolcrib and had
to take outside calls there because the switchboard had then been
closed for the day. Although McCully testified that he eventually
had the number transferred to his office, so that it would no longer
be necessary for incoming calls to be taken in the toolcrib, McCully
did not recall when that had occurred in relation to Wells’ transfer
to first shift.
Leadmen Danny Chambers, Rod Eastham, and Clint Under-
wood.2
Neither Jarvis nor Littrel appeared as a witness. But
McCracken did testify and he agreed that he had discussed
the Union’s meeting with Wells on the telephone and, also,
during a lunchroom conversation when Leadmen Eastham,
Underwood, and Danny Chambers, as well as Leadman Rod
Green, had been present. Significantly, both Eastham and
Danny Chambers appeared as witnesses for Respondent, but
neither one denied having overheard Wells’ lunchroom dis-
cussion of the Union’s meeting. Indeed, neither one of them
denied having known, from whatever source, that Wells had
arranged for a meeting between union officials and Respond-
ent’s employees after work on July 13. And the evidence dis-
closes other sources of information concerning that meeting.
Every witness interrogated regarding the subject testified
that information and rumors circulate rapidly through Re-
spondent’s facility. For example, Six, Wells’ former leadman
during the latter’s first month on day shift, testified, ‘‘When
Al [Wells] got fired, I guess everybody knew it in fifteen
minutes.’’ Similarly, McCracken testified that someone had
informed him of that termination and, further, that it was
common for information to circulate rapidly through the
Tulsa facility: ‘‘Seems like what we find out comes down
through the grapevine before we get it on the bulletin
board.’’
Of greater import to the termination of Wells, there is evi-
dence that word had spread concerning both the union meet-
ing and the role of Wells in arranging it. Some of it had
originated with comments made by Wells, himself. For ex-
ample, before setting up the Hardee’s meeting he had agreed
to participate in a golf outing on the night of July 13 with,
among others, Six. Six testified that, in the course of bowing
out of that commitment, Wells had said that he had a union
meeting to go to that night.
In like vein, General Products Leadman Jimmy Warren
testified that he had been told by Wells that the latter had
set up a union meeting for that Friday. Although Warren de-
nied having repeated that comment to anyone in manage-
ment, it is clear that he was not reluctant to relate to others
what Wells had said. For, Jimmy Warren did not deny hav-
ing told Montgomery ‘‘that he [Warren] heard that there was
going to be a meeting at Hardee’s.’’3 Montgomery further
testified that he had been told by phone operator Keith Bell
that Wells was ‘‘passing word all over the shop that Union
officials will be here and Gerald Williams had made the con-
tact for them.’’ And, Leadman Warren’s brother, turret lathe
operator Gary Neal Warren, testified that he had heard that
there was going to be a union meeting on Friday night, al-
though he could not recall who had told him. In sum, there
is ample basis for concluding that, during the week preceding
Wells’ termination, as Montgomery testified, ‘‘There was
any number of people knowing about’’ Wells’ arrangements
for the Union to meet with employees of Respondent.
Of course, a union meeting turned out not to be the prin-
cipal event of July 13. During the afternoon of that day
Wells was terminated. There is no dispute that during the
morning machinist Ronald Henderson, who was supervised
by Danny Chambers, had gone to the toolcrib, where Six and
Wells were working as grinders, seeking to have some chas-
ers sharpened or ground. Nor is there any dispute that Hen-
derson first asked Six to do so, but that Six replied that he
was unable to do so because he was working on a special
project for Eastham, by then the immediate supervisor of
both Six and Wells. Six suggested that Henderson ask Wells
if he could perform the work. All agree that Henderson then
approached Wells. According to Henderson, Wells had ‘‘just
got[ten] off the telephone,’’4 and, when Henderson inquired
about grinding the chasers, Wells ‘‘just looked straight at me
and said, who the hell [do] you think I am. God[?]’’ Hender-
son testified that he immediately left the toolcrib and re-
ported what had been said to his supervisor, then-Valve
Manufacturing Department Leadman Danny Chambers. The
latter testified that during the morning of July 13, Henderson
had reported ‘‘that he wanted to have the chasers reground
and he took them to Al, and Al said, who in the hell do you
think I am, God.’’
In contrast, Wells testified that, during the morning of July
13, he had been grinding a tool for turret lathe operator War-
ren when Henderson had asked about grinding the chasers
‘‘real quick.’’ In response, testified Wells, ‘‘I said, man, I
said, I’ve got a man waiting on me up at the window. I said,
Gary Warren’s up here and I said, I can’t, I can’t get to them
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 During cross-examination Warren acknowledged that he had
gone to the toolcrib on more than one occasion that morning, there-
by raising at least the possibility that he might have heard an ex-
change different from the one referred to by Henderson. Yet, neither
the latter nor Wells testified that Henderson had been to the toolcrib
by himself on more than one occasion that morning to have chasers
ground. Accordingly, it would be sheer speculation to conclude that
Gary Warren had heard some exchange between Henderson and
Wells on July 13 that differs from the one about which Respondent
complains.
6 Already prepared items are stored in the toolcrib.
right now. Just quick as I get this ground, I said, I’ll grind
them.’’ According to Wells, Henderson had simply said that
he would get someone else to do the work and had left.
Six agreed that he had been in the toolcrib that morning
and, further, agreed that, when requested to grind the chasers,
had told Henderson that he was on a special project and had
suggested that Henderson ask Wells to do the work. How-
ever, apparently Six had gone on working and had not paid
attention to the ensuing exchange between Henderson and
Wells. But Gary Warren testified that he had been present
and had heard that exchange.5 According to Warren, as he
had waited for his tool to be ground by Wells, Henderson
approached and inquired about the chasers. Warren testified,
‘‘Al says, soon as he got done with me that he would wait
on him. And Al told him he could go ahead and go back
there and look if he wanted to, which he did.’’6 Then, testi-
fied Warren, ‘‘Al went ahead and sharpened that tool for
me.’’
Respondent contends that Ray Chambers had been the of-
ficial who had made the decision to terminate Wells. When
he testified, Ray Chambers agreed that he had done so, al-
though he explained that, before becoming final and being
implemented, his termination decision had been reviewed and
ratified, during a meeting, by Vice President Loyce Green,
Plant Manufacturing Manager Rich Legel, and Personnel
Manager Judy Johnson.
As quoted above, in its termination letter, Respondent ex-
plained that its decision had been based not only upon bellig-
erence assertedly displayed by Wells on July 13, but also be-
cause of ‘‘a documented history of unsatisfactory perform-
ance from the date of [Wells’] hire through the inability to
correct this belligerence and accept corrective action.’’ Con-
sistent with that explanation, the evidence does show that,
while employed by Respondent, Wells had displayed attitude
problems that had upset Respondent’s officials. Thus,
McCully testified that, during the 2 years and almost 8
months that he had supervised Wells on the second shift,
there had been frequent complaints by other second-shift em-
ployees that Wells ‘‘wouldn’t issue them a tool or some-
thing. He was busy, he was talking on the phone and this
and that.’’ In addition, though McCully had been Wells’ im-
mediate supervisor on second shift, Six, then first-shift
toolcrib leadman, had been the official who had laid out the
work that Wells was to perform during the second shift. Both
McCully and Six testified that Wells regularly had failed to
complete those assignments. As a result, Six had complained
to McCully. At a meeting on August 25, 1988, McCully had
warned Wells that he was expected to perform the work in
the manner laid out by Six and that Respondent could not
continue employing Wells if he was unwilling to do the job
in that manner. Both at that time and on other occasions
Wells complained that he did not believe Six was qualified.
Respondent’s problems with Wells continued until, after
additional meetings with Wells had been conducted by Re-
spondent’s officials earlier that same month, a final warning
was issued by McCully to Wells on February 23, 1989. That
warning recited:
This final written warning is to confirm our meeting
on 2–14–89 concerning your unacceptable attitude to-
wards your job as a tool grinder.
I told you that you would be required to receive and
accept instructions from the lead man in the tool grind-
ing dept. as to what tools you were to grind, the proper
grind for the tools and the reasonable quantity to be
ground. I told you that you would be required to com-
municate any problems concerning these matters with
the lead man.
I told you that in the future if you failed to meet any
of these requirements you would be terminated.
Thereafter, Wells described certain personal problems that
he was experiencing to McCully. In light of that description,
McCully decided that he would attempt to resolve Wells’
work-related problems and, thus, told Plant Manufacturing
Manager Legel, ‘‘I didn’t want to terminate Al, because of
the personal problems he had told me about.’’ However,
McCully’s efforts proved unavailing and, finally, he asked
Legel ‘‘to take Al off my shift,’’ because ‘‘I wasn’t able to
get to him. I wasn’t going to change anything.’’
Wells was transferred to the first-shift toolcrib on February
19 where he continued working as a grinder. Until March 19
he was supervised by Six. However, by that date, Respond-
ent had decided that the department was too small to justify
separate full-time supervision and, consequently, Six was
made a full-time grinder, with supervision of toolroom em-
ployees being added to Leadman Eastham’s responsibilities.
Thereafter, Wells would be directly supervised by Eastham
until the July 13 termination.
Neither Six nor Eastham complained about the volume of
work turned out by Wells during that 5-month period. More-
over, Eastham testified that, ‘‘as far as his qualifications, his
grinding tools, I just had a very few complaints about tool[s]
not being ground right.’’ However, testified Eastham, ‘‘I had
several complaints about him not servicing operators’’ from
both employees and other supervisors. According to
Eastham, those complaints were received ‘‘at least once a
week about something.’’ Indeed, during April, Eastham re-
ceived a complaint from Leadman Danny Chambers about a
valve employee not being served because Wells had been on
the telephone. After Eastham discussed the complaint with
Wells, ‘‘ask[ing Wells] to handle the operator at the window
and limit his phone,’’ an angry Wells confronted Danny
Chambers, demanding to know the identity of the com-
plaining employee. Ultimately, that outburst led to a meeting
with Ray Chambers and to issuance of a written warning to
Wells on April 25:
This is to confirm our discussion on Tuesday April
24, 1990 concerning your actions on Monday Apr. 23,
1990. You were told on April 23, that we had a com-
plaint about you being on the phone and not waiting on
someone at the tool room window. You were told to be
1241NORRIS/O’BANNON
sure and not spend a long time on the phone. Your re-
action to this was not acceptable. You not only argued
with your leadman but you also left the toolcrib and
confronted another leadman about it. Because of your
short temper and attitude towards constructive criticism
and supervision you will be required to bring any and
all complaints directly to Ray Chambers through a
scheduled meeting. I asked you if you had a problem
with this and you said no.
If you fail to comply with this rule then you will be
subject to disciplinary action up to and including termi-
nation.
Wells testified that, save for a warning about attendance,
he ‘‘never had another warning except until the day that I
was terminated.’’ However, Ray Chambers testified that he
had spoken to Wells on June 26 about ‘‘a lack-a-daisical atti-
tude’’ toward getting work done and, again, on June 27
about not waiting on operators when they came for service
to the toolcrib. In a list of disciplinary actions pertaining to
Wells, Personnel Manager Johnson listed both of these con-
versations as verbal warnings. But Ray Chambers’ testimony
regarding these purported warnings inaugurated a series of
inconsistencies—some major, others less central, but none-
theless material—that, in the end, undermine Respondent’s
asserted motivation for terminating Wells and the generalized
testimony of Ray Chambers intended to support it.
In its posthearing brief, Respondent characterizes the
above-quoted April 25 warning letter, from Ray Chambers to
Wells, as a ‘‘second final warning.’’ However, that charac-
terization is not supported by examination of the April 25
letter. Although it concludes by warning of possible future
disciplinary action, including discharge, in contrast to the
above-quoted February 25, 1989 warning—which states ex-
plicitly that it is a ‘‘final written warning’’ and that future
failure to satisfy its enumerated requirements would result in
termination—at no place does the April 25 letter state that
it constitutes a final warning. Moreover, if it had actually
been a final warning, and if Ray Chambers truly had twice
become upset by Wells’ June attitude and performance, then
presumably Wells would have been fired in June, in view of
the now-claimed ‘‘second final warning’’ issued 2 months
earlier. But Wells was not terminated in June and the failure
of Respondent to do so, in view of the circumstances then
purportedly existing, was never explained by Ray Chambers
nor by any other official of Respondent.
One other aspect concerning the asserted June verbal
warnings is significant. During the hearing Respondent pro-
duced two documents, each of which purported to be a de-
scription of one of the two June incidents involving Wells
that had upset Ray Chambers. However, the latter admitted
that he had not prepared either one on the date of the as-
serted warning that it purports to document. Instead, he testi-
fied that when he had mentioned the incidents during the
July 13 meeting of Respondent’s officials to review and de-
cide whether to endorse his decision to fire Wells, someone
had questioned why he had not documented those incidents.
Ray Chambers testified that he then had done so that very
day. But that testimony was contradicted by his prehearing
affidavit in which he stated that he had not documented the
two purported June verbal warnings until ‘‘after the charge
was filed,’’ which would mean not until August. Ray Cham-
bers evaded the opportunity afforded him to explain this in-
consistency between his testimony and his prehearing affi-
davit.
The foregoing testimony of Ray Chambers raises, at least,
a possible conclusion that Respondent’s witnesses were at-
tempting to enlarge upon Wells’ misperformance so that the
lawfulness of its termination decision would be fortified.
Such a conclusion is strengthened by an examination of
Danny Chambers’ account, during direct examination, that
several employees had told him that they were afraid of
Wells because of his belligerence—testimony that cor-
responds to the above-quoted assertion in Ray Chambers’ ter-
mination letter. Danny Chambers identified Chris Harper as
one such employee and, initially during cross-examination,
testified that Harper ‘‘told me that he was afraid that, he
was, he [was] uncertain enough, he said, he did not have to
deal with that situation and harassment, that Al was a lot
bigger than he was.’’ However, Respondent did not call
Harper to corroborate that testimony, although it never rep-
resented that Harper was unavailable to it as a witness. And
as questioning regarding this subject progressed, Danny
Chambers began retreating from his initial assertions, first
testifying that Harper had ‘‘just displayed fear’’ and, then,
that Harper ‘‘didn’t come right out and say, I am afraid of
Al Wells.’’ Ultimately, Danny Chambers made a full retreat
on this subject, completely contradicting his own earlier
above-described testimony during direct examination by ad-
mitting that, aside from Harper, ‘‘I don’t believe anybody
[was afraid of Wells]. I don’t know that anybody else was
afraid.’’ Indeed, Respondent produced no specific evidence
whatsoever of ‘‘operators [who had been] reluctant to come
to the tool room for tools and service’’ because of any bel-
ligerence on the part of Wells.
The testimony of Ray and Danny Chambers did not be-
come more reliable when they testified about the events of
July 13. Both testified that, after Henderson had reported to
Danny Chambers what Wells assertedly said when Hender-
son sought to have the chasers ground, Danny Chambers had
immediately related that report to Ray Chambers who, in
turn, directed Danny Chambers to ask Wells if he had made
such a remark to Henderson. According to Danny Chambers,
he had followed that direction and Wells confirmed that he
had made the statement about not being God to Henderson.
Both Ray and Danny Chambers testified that the latter had
then reported Wells’ confirmation to the former. Ray Cham-
bers testified that, as a result, he had decided to fire Wells.
Thus, according to the account of Ray and Danny Chambers,
the discharge decision had been precipitated by belligerence
displayed to Henderson by Wells. Yet, that account is flatly
contradicted by Respondent’s own termination letter which
had purportedly been prepared at Ray Chambers’ direction.
For, as quoted above, the letter charges that Wells had dis-
played belligerence to Danny Chambers, not Henderson.
However, at no point when they testified did either Ray or
Danny Chambers claim that Wells had displayed belligerence
toward Danny Chambers on July 13.
Furthermore, their testimony that Danny Chambers had
gone to Ray Chambers before having approached Wells on
July 13 is contradicted by other testimony, including that of
Henderson whom Respondent called as a corroborating wit-
ness. For, he testified that when he had made his report to
Danny Chambers, the latter had immediately ‘‘walked back
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
through the toolcrib with me. Asked Mr. Wells what he had
said. And he had said the same thing.’’ Of course, though
it contradicts the Chambers’ account of the sequence of
events that morning, Henderson’s testimony does tend to cor-
roborate their description that Danny Chambers had spoken
to Wells in an effort to confirm what Wells had earlier said
to Henderson. Yet, as is true of the Chambers’ account, Hen-
derson’s description is contradicted by Respondent’s termi-
nation letter which accuses Wells of belligerence toward
Danny Chambers, not Henderson.
Henderson’s account also is contradicted by the testimony
of Six. Not surprisingly, in light of Wells’ repeated past criti-
cisms of his qualifications as toolcrib leadman, Six did not
appear to be a fan of Wells. Nevertheless, he did appear to
be a truthful witness and he contradicted the Chambers’ ac-
count of the sequence of events on July 13 and, of greater
significance, the accounts of Henderson and Danny Cham-
bers as to what the latter had said that morning when he had
come to the toolcrib. For, Six testified, as had Henderson,
that Danny Chambers had come to the toolcrib in the com-
pany of Henderson. But, instead of having asked what Wells
had said to Henderson, Six testified that Danny Chambers
had asked, ‘‘Why can’t we get any chasers ground[?]’’ Ac-
cording to Six, it had been in response to that question that
Wells had said, ‘‘Well, I’m busy, said John’s busy. What do
you think I am, God[?]’’ Consequently, Six’s testimony,
which confirms that of Wells, shows that it had been in re-
sponse to Danny Chambers’ intervention that the comment
about God had been made. For, according to Wells, ‘‘I said
[to Danny Chambers], we’re only two guys. We’re not [G]od
in here.’’
Of course, belligerence toward a supervisor is hardly less
serious than belligerence toward a coworker. But, ‘‘mere ex-
istence of valid grounds for a discharge is no defense to a
charge that the discharge was unlawful, unless the discharge
was predicated solely on those grounds, and not by a deci-
sion to discourage union activity.’’ NLRB v. Symons Mfg.
Co., 328 F.2d 835, 837 (7th Cir. 1964). Accord: Singer Co.
v. NLRB, 429 F.2d 172, 179 (8th Cir. 1980). For example,
even were I to conclude that I believed that Wells’ mis-
conduct warranted termination, ‘‘Board law does not permit
the trier of fact to substitute his own subjective impression
of what he would have done were he in the Respondent’s po-
sition. Super Tire Stores, 236 NLRB 877 fn. 1 (1978). Ac-
cord: Hallmark & Son Coal Co., 299 NLRB 259, 260 fn. 7
(1990). Instead, when evaluating allegations of discrimina-
tion, ‘‘the pivotal factor is motive,’’ NLRB v. Lipman Bros.,
Inc., 355 F.2d 15, 20 (1st Cir. 1966), because the ultimate
‘‘determination which the Board must make is one of fact—
what was the actual motive of the discharge?’’ Santa Fe
Drilling Co. v. NLRB, 416 F.2d 725, 729 (9th Cir. 1969).
Here, the above-described internal inconsistencies in the
accounts of Danny and, especially, Ray Chambers, to whom
the discharge decision is attributed, as well as the material
contradictions between their accounts and other evidence, ob-
literate any reliance that might otherwise be placed on their
testimony concerning the circumstances that led to Wells’
termination. Furthermore, Six testified that on July 13 Danny
Chambers had been so insistent on having the chasers
ground’’—‘‘Danny said, well, I’ve gotta have the chasers
ground’’—that Six had interrupted the work given him by
Eastham and had agreed to grind the chasers. From Six’s de-
scription of the exchange at the toolcrib, it appears that it
had been Danny Chambers’ own demanding attitude—that,
in effect, any other work should be set aside by one of the
grinders to grind the chasers for the employees that Cham-
bers supervised—that had provoked the defensive response
by Wells about which Respondent now complains. But, of
course, Respondent’s position is less supportable if predi-
cated upon the provocation of its own supervisor. Accord-
ingly, disregarding the explanation in the termination letter,
as well as the testimony of employees who had witnessed
portions of the toolcrib incident on July 13, the Chambers
tailored an account that concealed responsibility of Respond-
ent’s supervisor for the incident, thereby attempting to fortify
a defense of legitimacy for the termination of Wells.
This conclusion is further supported by an event that took
place on July 13 after the discharge of Wells. Six testified
that he had been approached by Ray Chambers who said that
‘‘Al won’t be back,’’ and who then asked, ‘‘How was his
work, what was he doing, was he doing all right [sic].’’ Ray
Chambers did not dispute Six’s testimony. Nor did he ex-
plain what his purpose had been in inquiring about the per-
formance of an already discharged employee. Absent such an
explanation, it is a fair inference that Ray Chambers had
been seeking some negative information from Six about
Wells that could be used to buttress the termination decision.
That such an effort was made serves to further support the
conclusion that Respondent’s asserted defense is not reliable.
In addition to the foregoing remarks, Six testified that Ray
Chambers also had asked, during the July 13 conversation,
‘‘if I knew anything about a Union meeting. And I said, no,
I don’t.’’ Ray Chambers did not specifically deny having put
that question to Six. Nor did he explain why he had chosen
to do so. Instead, he testified that he had been unaware of
a union meeting until Eastham had reported that, while es-
corting Wells from Respondent’s facility, the latter had as-
serted that he was being terminated because of the scheduled
union meeting. This report, testified Ray Chambers, had led
him to ‘‘just ask[] other supervisors if they had heard any-
thing.’’ However, he did not identify any supervisors whom
he had purportedly asked if they had heard of a union meet-
ing. Nor did any supervisors appear as witnesses and confirm
that such a question had been asked by Ray Chambers. More
significantly, while Eastham did appear as a witness for Re-
spondent, he neither testified that he had made such a report
to Ray Chambers nor did he testify that any statements had
been made to him by Wells concerning a union meeting.
C. Analysis
In support of its assertion that, in effect, the General
Counsel has failed to establish a prima facie case, Respond-
ent points to the absence of direct evidence that, prior to
Wells’ termination, Respondent had known that Wells had
arranged for the employees to meet with the Union after
work on July 13 and, further, to the absence of direct evi-
dence that it harbored animus toward union activities by its
employees. Yet, termination of a union activist tends to
‘‘give rise to an inference of violative discrimination,’’
NLRB v. First National Bank of Pueblo, 623 F.2d 686, 692
(10th Cir. 1980), and ‘‘[t]iming alone may suggest anti-union
animus as a motivating factor in an employer’s action.’’
NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir.
1984). That is, a close relation in time between union activity
1243NORRIS/O’BANNON
and termination of a union activist tends to show that the
proximity ‘‘was really no coincidence at all, but rather part
of a deliberate effort by the management to scotch the lawful
measures of the employees before they had progressed too
far toward fruition.’’ NLRB v. Jamestown Sterling Corp., 211
F.2d 725, 726 (2d Cir. 1954).
Here, there is ample evidence that knowledge of the
planned union meeting had become widely disseminated
through Respondent’s facility prior to the afternoon of July
13. The testimony of Six, McCracken, Montgomery, and
Jimmy and Gary Warren, set forth in subsection II,B, supra,
shows not only that information generally circulated freely
and rapidly through Respondent’s facility, but that knowl-
edge of the union meeting and of Wells’ role in arranging
it had spread throughout the Tulsa facility by the time of Re-
spondent’s decision to fire Wells. Although Respondent’s of-
ficials, particularly Ray Chambers, denied having known of
the meeting by that time, their inconsistent and contradictory
accounts in connection with the decision to terminate Wells
show that their testimony was not reliable. The record re-
veals no basis for a different conclusion concerning their de-
nials of knowledge, prior to the termination decision, that
Wells had arranged a meeting between employees and the
Union.
Regarding that termination, the evidence shows that a rel-
atively long-term employee had been abruptly discharged on
the day of a union meeting that he had arranged. It is quite
clear that his employment history had been marred by inci-
dents of belligerence and indifference to the needs of co-
workers. Yet, as set forth in subsection III,B, supra, an em-
ployer’s motivation is not evaluated by an objective stand-
ard—is not based upon an evaluation of what a ‘‘reason-
able’’ employer might likely have done in the particular cir-
cumstances presented. Rather, motivation is evaluated on the
basis of the actual standard utilized by the specific employer
named as the respondent. Here, while Wells periodically re-
ceived warnings for having exceeded the bounds of satisfac-
tory conduct tolerated by Respondent, for the most part Re-
spondent took no action concerning his sometimes abrasive
conduct. In fact, it rewarded his overall performance by regu-
larly awarding him pay increases whenever it periodically re-
viewed his performance, with the result that he had attained
the top pay level for his classification by July. There is no
evidence of even a single instance when his abrasiveness had
been viewed by Respondent as having been so disruptive that
he was denied a pay increase when the bimonthly review of
his performance was conducted.
Not only did Respondent fail to show that Wells’ actions
on July 13 had been any different from his long-tolerated
normal attitude, but there is credible evidence that his reac-
tion on that date could not be characterized as having been
belligerent toward Henderson. Gary Warren’s testimony con-
firms that Wells had been performing work when Henderson
had inquired about having the chasers ground. There is no
evidence that Henderson’s needs were entitled to a pref-
erence over those of Warren. Consequently, it cannot be said
that Wells acted improperly in continuing the work for War-
ren, rather than setting it aside to grind the chasers for Hen-
derson. Nor can it be said that the remark made by Wells
to Henderson at that time had been an improper one. Hender-
son described a belligerent reference to God. But, putting to
the side Wells’ account of his response, Gary Warren testi-
fied that Wells had expressed willingness to wait on Hender-
son, but only after completing the work then in progress for
Warren. And Henderson’s description of that response tends
further to be refuted by Respondent’s own termination letter
which makes no mention whatsoever of belligerence toward
Henderson on July 13.
In testifying that Wells had been belligerent to Henderson,
Ray, and Danny Chambers dramatically changed Respond-
ent’s defense. For its termination letter had charged Wells
with belligerence toward Danny Chambers, not Henderson.
As pointed out in subsection III,B, supra, that particular
change in the asserted misconduct of Wells served to
strengthen Respondent’s defense. That is, it portrayed Wells’
comment about God as an unprovoked one, rather than a de-
fensive response to Danny Chambers’ own insistent demand
that his employee’s chasers be ground and, further, its im-
plicit criticism of Wells and Six’s refusal to set aside work
in progress to do so. Yet, that portrayal is contrary to the de-
scription of the incident by Six and, more significantly, is a
change in the supposed infraction that occasioned the dis-
charge decision—a shift in defense that, of itself, is an indi-
cation of unlawful motive.
That Ray and Danny Chambers were not reluctant to tailor
their testimony to fortify Respondent’s defense is further
shown by Danny Chambers’ ultimately retracted accusation
that employees had expressed fear of Wells, because of the
belligerence that he assertedly displayed when they dealt
with him. In like vein, had the April 25 warning truly been
a ‘‘second final warning’’ then the conduct attributed to
Wells in June by Ray Chambers seems surely to have war-
ranted termination at that time, had it actually taken place.
But Wells was not terminated in June. And Ray Chambers’
contradictory accounts regarding when he had prepared the
documentation of those purported incidents further under-
mines his testimony that those incidents, and the verbal
warnings concerning them, had actually occurred during
June. To the contrary, such testimony appears to be another
example of an effort to support Respondent’s defense by
sometimes enlarging upon and sometimes creating past inci-
dents of unsatisfactory conduct by Wells.
Respondent points out that conversations about unionizing
had occurred for a long time at its Tulsa facility and, in fact,
Wells had been discussing that subject for over a year prior
to his discharge. Yet, there is no evidence that, prior to July,
any past conversation had ever led to any specific action by
any employee to obtain representation. That is, so far as the
record discloses, prior to July there had been no actual meet-
ings with union officials to advance whatever generalized de-
sire for representation employees might have entertained. Ac-
cordingly, that Respondent never previously retaliated against
employees for having merely discussed unionization does
not, of itself, refute a willingness to do so in the case of an
employee who proceeded beyond mere discussion and ar-
ranged for a meeting with union officials as a prelude to a
possible organizing campaign. In any event, as Justice Pow-
ell, speaking for a majority of the Supreme Court, pointed
out in a case involving discrimination, albeit of the racial
type, a single act of discrimination ‘‘would not necessarily
be immunized by the absence of such discrimination in the
making of other comparable decisions.’’ Village of Arlington
Heights v. Metropolitan Housing Development, 429 U.S. 252,
266 fn. 14 (1977). That same analysis has been applied to
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
allegations of discrimination arising under the Act. See, e.g.,
NLRB v. W. C. Nabors Co., 196 F.2d 272, 276 (5th Cir.
1952), cert. denied 344 U.S. 865 (1953); Nachman Corp. v.
NLRB, 337 F.2d 421, 424 (7th Cir. 1964).
In the circumstances reviewed above, the General Counsel
has established a prima facie case that Respondent’s termi-
nation decision had been motivated by its animus toward
Wells for having arranged for a meeting between its employ-
ees and a representative of the Union. Moreover, in light of
the unreliability of the inconsistent and contradictory testi-
mony of Respondent’s officials, most particularly of Ray
Chambers, Respondent has failed to satisfy its burden of
going forward with credible evidence showing that, absent
his arrangement for that meeting, Wells would have been
fired as a result of his remarks on July 13. Therefore, a pre-
ponderance of the evidence establishes that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging Wells
on July 13 and I deny Respondent’s motion to dismiss that
allegation.
That conclusion is reinforced by Ray Chambers’ ques-
tioning of Six regarding Wells’ performance. In the cir-
cumstances, no purpose existed for that inquiry, and Ray
Chambers advanced none, other than to ascertain if addi-
tional adverse information could possibly be secured that
might, in turn, be utilized to buttress Respondent’s discharge
decision. In addition, Ray Chambers took advantage of that
same conversation to question Six’s knowledge of the union
meeting scheduled for later that same afternoon. Six had not
been an open union supporter. Although the questioning oc-
curred while Six had been at his work station, Ray Chambers
was not Six’s immediate supervisor, but rather occupied a
higher position in Respondent’s supervisory chain. Moreover,
he had been the official who had decided to fire Wells. Ray
Chambers gave no testimony that would supply a statutorily
valid reason for suddenly asking an employee about his
knowledge of a union meeting. To the contrary, by coupling
his question about the meeting with an announcement of
Wells’ discharge—and without explaining the purpose of the
question and assuring Six that his answer would not lead to
adverse action, such as Wells had just experienced—the
questioning about the meeting conveyed an inherent
‘‘warn[ing] . . . that [Respondent] did not look favorably
upon the Union,’’ Northway Nursing Home, 243 NLRB 544
fn. 1 (1979), thereby naturally tending ‘‘to scotch the lawful
measures of the employees before they had progressed too
far toward fruition.’’ NLRB v. Jamestown Sterling Corp.,
supra. Therefore, by questioning Six concerning his knowl-
edge of the scheduled union meeting, Respondent engaged in
coercive conduct that violated Section 8(a)(1) of the Act.
The final issues in this case pertain to the no-solicitation
and no-distribution rules, recited in subsection III,A, supra,
that existed until November. Respondent moves to dismiss
the allegations pertaining to those rules, because they are as-
sertedly moot inasmuch as Respondent posted a notice to
employees concerning them for 60 days and, further,
changed the rules by November. Neither fact is disputed.
However, the General Counsel opposes the motion and, in
that regard, points out that the Regional Director neither was
specifically notified of the notice’s posting nor approved the
settlement of which the notice was ‘‘made a part hereof.’’
Following investigation of the charge in this matter, the
Regional Director decided to proceed to complaint, absent
settlement, concerning the questioning of Six and the two
rules, but to dismiss, absent withdrawal, the part of the
charge alleging that Wells had been unlawfully discharged.
There was no withdrawal of that portion of the charge. To
the contrary, its dismissal was appealed to the General Coun-
sel. Nevertheless, a settlement agreement pertaining to the
questioning and rules was transmitted to Respondent. It was
signed by Respondent on September 12 and was then sub-
mitted to the Regional Director for approval. However, pend-
ing disposition on appeal to the General Counsel of the par-
tial dismissal, the Regional Director did not approve the
agreement and, obviously, never approved it once the Gen-
eral Counsel reversed the partial dismissal pertaining to
Wells’ discharge. In the meantime, beginning on September
12, Respondent posted a copy of the notice incorporated into
the Agreement for a 60-day period and modified the two
rules in November. While Respondent argues that these facts
render moot the allegations concerning the rules, I do not
agree.
The settlement agreement expressly provides, inter alia,
that, ‘‘Performance by the Charged Party with the terms and
provisions of this Agreement shall commence immediately
after the Agreement is approved by the Regional Director, or
. . . upon receipt by the Charged Party of advice that . . .
the General Counsel has sustained the Regional Director.’’
Further, as noted above, the notice to employees is expressly
‘‘made part’’ of the agreement which provides that posting
is to commence ‘‘[u]pon approval of this Agreement.’’ Con-
sequently, Respondent was on notice when it signed the
agreement that it was not final simply because Respondent
had signed it—that the Regional Director’s, and possibly the
General Counsel’s, approval was needed for the Agreement
to become final.
In addition, the agreement also provides that the signato-
ries ‘‘will each notify the Regional Director in writing what
steps the Charged Party has taken to comply herewith. Such
notification shall be given within 5 days, and again after 60
days, from the date of the approval of this Agreement.’’ Re-
spondent concedes that, other than signing and dating the
copy of the notice attached to the agreement that it signed
and returned to the Regional Office, it never gave inde-
pendent notification to the Regional Director either that it
had commenced or completed the 60-day period of posting
the notice. In the foregoing circumstances, there is no basis
for regarding any issue as moot simply because Respondent
signed and posted the notice to employees without regard to,
and without complying with, any of the provisions of the set-
tlement agreement regarding that notice.
Nor can it be said that Respondent’s actions somehow
estop the General Counsel from litigating the issues per-
taining to the no-solicitation and no-distribution rules that ex-
isted until November. An allegation does not become moot
simply because a respondent ceases to commit the unfair
labor practice underlying that allegation. It might be deemed
moot if a respondent effectively repudiates its unfair labor
practice. Here, however, Respondent has failed to show that,
of itself, mere unapproved posting of a notice to employees
satisfies the criteria for effective disavowal set forth in
Passavant Memorial Hospital, 237 NLRB 138 (1978). Given
the nonadmission provision in the Settlement Agreement, it
cannot be said that Respondent acknowledged its prior com-
mission of unfair labor practices. Moreover, given the
1245NORRIS/O’BANNON
7 During the hearing I precluded litigation concerning Wells’ suit-
ability for continued employment in light of certain facts that had
not been known to Respondent at the time of its termination decision
and, accordingly, that had not been an element in its motivation for
deciding to terminate Wells. My ruling, of course, was based upon
the well-settled principle that the sole issue at this stage is ‘‘whether
[R]espondent was guilty of committing [an] unfair labor practice[].’’
NLRB v. Edgar Spring, Inc., 800 F.2d 595, 600 (6th Cir. 1989). By
contrast, the more general determination of suitability for continued
employment, because of some fact(s) unrelated to the actual termi-
nation motivation, is a ‘‘remedial question[] . . . appropriately re-
solved in the compliance stage of unfair labor practice proceedings,’’
Hotel & Restaurant Employees Local 1064 (Service American), 298
NLRB 827 (1990), and, should it become necessary, Respondent can
‘‘litigate this remedial issue during the compliance process.’’ E.E.C.,
Inc., 297 NLRB 943 fn. 1 (1990).
unremedied unlawful discharge of Wells, it cannot be said
that the notice had been posted in a context free of other un-
fair labor practices. Finally, the entire process of securing
partial settlements, to expedite case processing if regional
dismissal is sustained regarding other allegations in charges,
would be undermined if, in those cases where reversals
occur, respondents are permitted to bar litigation of some al-
legations by prematurely posting notices from unapproved
partial settlement agreements encompassing those allegations.
With respect to the substance of the two rules, the Su-
preme Court has ‘‘long accepted the Board’s view that the
right of employees to self-organize and bargain collectively
. . . necessarily encompasses the right effectively to commu-
nicate with one another regarding self-organization at the
jobsite.’’ Beth Israel Hospital v. NLRB, 437 U.S. 483, 491
(1978). As a result, ‘‘[n]o restriction may be placed on the
employees’ right to discuss self-organization among them-
selves unless the employer can demonstrate that a restriction
is necessary to maintain production or discipline.’’ NLRB v.
Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). ‘‘The
governing principle is that a rule is presumptively invalid if
it prohibits solicitation on the employees’ own time.’’ Our
Way, Inc., 268 NLRB 394 (1983).
As set forth in subsection III,A, supra, prior to November
Respondent maintained a rule that prohibited solicitation ‘‘on
Company premises at any time without prior official ap-
proval of the Company.’’ Such a rule is presumptively in-
valid. First, it encompasses ‘‘periods from the beginning to
the end of workshifts, periods that include the employees’
own time,’’ Our Way, supra, as well as times ‘‘when the em-
ployees have completed their shifts but are nevertheless still
lawfully and properly on company premises pursuant to the
work relationship,’’ Contra Costa Times, 225 NLRB 1148
(1976). Second, ‘‘any rule that requires employees to secure
permission from their employer as a precondition to engag-
ing in protected concerted activity on an employee’s free
time and in nonwork areas is unlawful.’’ Brunswick Corp.,
282 NLRB 794, 795 (1987). Respondent has presented no
evidence of any management interest that might even argu-
ably justify so stringent a restriction on solicitation and,
therefore, overcome the presumptive unlawfulness of its no-
solicitation rule. Therefore, by maintaining the rule recited in
paragraph 9 of its miscellaneous rules until November, Re-
spondent violated Section 8(a)(1) of the Act.
‘‘Rules prohibiting distribution of literature are presumed
valid unless they extend to activities during nonworking time
and in nonworking areas.’’ St. Joseph’s Hospital, 222 NLRB
1150 (1976). While miscellaneous rule 16 starts out as a
facially lawful one—‘‘No distribution of literature or printed
matter of any kind in any work area during work peri-
ods.’’—it continues on by adding the somewhat confusing
phrase ‘‘anywhere on the Company premises’’ and by then
prohibiting ‘‘posting notices, signs, or writing in any form
anywhere on the Company premises unless specifically au-
thorized to do so by the Company.’’ Nothing in that latter
prohibition restricts its scope only to Respondent’s own
property. To the contrary, it is so broadly worded that, from
its face, it appears to encompass notices or signs—such as
stickers—affixed to an employee’s own personal property—
such as a lunch pail—that is located ‘‘on the Company prem-
ises.’’
Furthermore, although the additional phrase ‘‘anywhere on
Company premises’’ might be interpreted as a modification
of the phrase ‘‘in any work area’’—so that it was intended
to mean any work area located on Respondent’s premises—
the sentence, read in its entirety, is so confusingly worded
that it does not clearly convey such an interpretation. More-
over, there is no evidence that Respondent operates any work
areas that are not on its own premises. Consequently, it
would not be illogical for an employee to interpret the sen-
tence, read in its totality, to mean that the entirety of Re-
spondent’s premises is considered a ‘‘work area’’ by Re-
spondent and, accordingly, that distribution of literature and
other printed matter was prohibited anywhere on Respond-
ent’s premises. There is no evidence that Respondent ever
communicated a more limited interpretation to its employees.
‘‘Where ambiguities appear in employee work rules promul-
gated by an employer, the ambiguity must be resolved
against the promulgator of the rule rather than the employees
who are required to obey it.’’ Paceco, 237 NLRB 399 fn.
8 (1978). Therefore, by maintaining the rule recited in para-
graph 16 of its miscellaneous rules until November, Re-
spondent violated Section 8(a)(1) of the Act.
CONCLUSION OF LAW
Norris/O’Bannon, a Dover Resources Company committed
unfair labor practices affecting commerce by discharging Al-
fred Wells because of his union activities, in violation of
Section 8(a)(3) and (1) of the Act, and by coercively interro-
gating an employee about union activities and by maintaining
unlawful no-solicitation and no-distribution rules, in violation
of Section 8(a)(1) of the Act.
REMEDY
Having found that Norris/O’Bannon, a Dover Resources
Company engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom
and, further, that it be ordered to take certain affirmative ac-
tion to effectuate the policies of the Act. With respect to the
latter, it shall be ordered to offer Alfred Wells immediate
and full reinstatement to the position of tool and cutter grind-
er, dismissing, if necessary, anyone who may have been
hired or assigned to perform the work from which he was
terminated on July 13, 1990, or if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges,7 and to make
Wells whole for any loss of pay he may have suffered be-
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
9 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
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.’’
cause he was unlawfully terminated, with backpay to be
computed on a quarterly basis, making deductions for interim
earnings, F. W. Woolworth Co., 90 NLRB 289 (1950), and
with interest to be paid on the amounts owing as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, it shall be ordered, to the extent it has not al-
ready done so, to rescind or modify the rules appearing in
its employee handbook so that employees are not prohibited
from solicitation for purposes protected by Section 7 of the
Act during nonworking time and are not prohibited from dis-
tribution of literature for purposes protected by Section 7 of
the Act during nonworking time in nonworking areas of its
premises and, further, to distribute new copies of that hand-
book, with the rules as rescinded or modified, to employees.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Norris/O’Bannon, a Dover Resources Company,
Tulsa, Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against Alfred
Wells or any other employee because of activity on behalf
of International Association of Machinists and Aerospace
Workers, AFL–CIO or any other labor organization.
(b) Interrogating employees about activities on behalf of
any labor organization.
(c) Maintaining rules that prohibit employees from solic-
iting for purposes protected by Section 7 of the Act during
nonworking time or from distributing literature for purposes
protected by Section of the Act during nonworking time in
nonworking areas of its Tulsa, Oklahoma facility.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Alfred Wells immediate and full reinstatement to
the position of tool and cutter grinder, dismissing, if nec-
essary, anyone who may have been hired or assigned to the
position from which he was unlawfully terminated on July
13, 1990, or, if that position no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any
loss of pay he may have suffered as a result of his discrimi-
natory termination, in the manner set forth above in the rem-
edy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Rescind or modify the rules appearing in its employee
handbook so that employees are not prohibited from solicita-
tion for purposes protected by Section 7 of the Act during
nonworking time and are not prohibited from distribution of
literature for purposes protected by Section 7 of the Act dur-
ing nonworking time in nonworking areas of its premises
and, further, distribute to all employees a copy of the em-
ployee handbook with the rules so rescinded or modified.
(d) Post at its Tulsa, Oklahoma facility copies of the at-
tached notice marked ‘‘Appendix.’’9 Copies of the notice, on
forms provided by the Regional Director for Region 17, 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, de-
faced, 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 Respondent has
taken to comply.