Permaneer Corp.

National Labor Relations Board - Board Decisions

Oct 29, 1974

214 N.L.R.B. 367 (N.L.R.B. 1974)

PERMANEER CORPORATION
Permaneer Corporation and United Paperworkers In-
ternational Union , AFL-CIO. Case 36-CA-2464
October 29, 1974
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND PENELLO
On April 5, 1974, Administrative Law Judge Hen-
ry S. Sahm issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and General Counsel filed a
reply to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint alleged that Respondent promul-
gated and enforced an unduly broad rule restricting
employees from union activities and union solicita-
tion on their own time,' and that it enforced the rule
in a disparate and discriminatory manner against
union adherents. It also alleged that Respondent dis-
charged employee Morelli for the professed reason
that he had violated the aforesaid rule whereas, in
fact, Respondent discharged him because of his
union and concerted activities. The Administrative
Law Judge found that the rule was not unlawful. We
agree. But he also found that it was disparately ap-
plied to Morelli in violation of Section 8(a)(3) of the
Act. With this latter finding, we disagree.
Respondent is engaged in the manufacture of par-
ticleboard at a plant in Brownsville, Oregon. The
plant consists of two mills under one roof. Each mill
has its own production superintendent and its own
production employees. Production crews for the two
mills have separate restroom facilities, timeclocks,
and lunchrooms. Because of the continuous nature of
the plant's operations, employees are given staggered
20-minute lunchbreaks and two 10-minute rest peri-
ods resulting in only a few people not working at any
given time. The two mills have a common telephone
system, but utilize a separate horn or siren system to
relay code. signals to employees and supervisors re-
garding fire calls, telephone calls, and production
tieups.
1 The rule reads: "Lunch breaks are to be taken in the designated area for
the respective departments."
367
Martin Morelli was hired by Respondent in March
1970 and worked as the press or console operator on
the relief-shift production crew until he was termi-
nated on July 17, 1973. According to his former su-
pervisors, Morelli was a good workman but hard to
supervise because he liked doing things his own way.
In the spring of 1972, Morelli was active in orga-
nizing the employees of the Brownsville plant in be-
half of a local of the Lumber and Sawmill Workers
Union, AFL-CIO. That union filed a representation
petition with the Board and a consent election was
held in September 1972. The union lost the election.
In March 1973, Morelli became active in behalf of
another labor union, United Paperworkers Interna-
tional Union, AFL-CIO, which was seeking to repre-
sent Respondent's employees. This effort resulted in
a second consent-election agreement and an election
in October 1973, which the Paperworkers won.
In late June or early. July 1973, Morelli, who
worked in mill #2, admitted being orally repri-
manded by his foreman, Fred McNeil, for being out
of his production area during his break period in vio-
lation of shop rule 5.
The incident which led to Morelli's discharge oc-
curred on the evening of July 16, 1973. According to
Morelli's account, about 7:15 p.m., during his 20-
minute lunchbreak (Morelli worked the swing shift
on that day), he was in Foreman McNeil's office ex-
amining a production report when the telephone
rang and a female voice asked for McNeil. Morelli
answered that McNeil was out and suggested that the
caller call back in a few minutes while Morelli went
to find McNeil. Morelli then left his place in mill #2
and went to mill #1 looking for McNeil. While in
mill #1, he spoke to employee Thornton who was
working. When he spied McNeil, he ran up to Mc-
Neil and told him about the telephone call and the
call back.
McNeil's account of the incident is that he saw
Morelli talking to employee Thornton in the sander
area where Morelli had no business being and that
when Morelli saw him Morelli ran up to him and
said he had been looking all over the plant for Mc-
Neil and wanted to know if McNeil had received a
telephone call. McNeil questioned Morelli about the
telephone call. Morelli was unable to give the name
of, or the message from, the caller. Morelli was also
not able to give any satisfactory explanation for not
sounding the maintenance horn, an accepted signal,
in order to call McNeil back to his office. Doubting
that there had been any telephone call for him, Mc-
Neil spoke to employee Paul Beaudin, who was sub-
stituting for Morelli during the latter's break period
and would receive all incoming calls; and asked him
if there were any telephone calls while McNeil was
214 NLRB No. 47
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of his office. Beaudin answered that there had
been only two incoming calls, but he had been un-
able to make a connection with either one. Asked by
McNeil if Morelli could have received a call in the
foreman's office, Beaudin answered that Morelli had
been nowhere near that office. McNeil subsequently
told Morelli that he did not believe his telephone sto-
ry and that Morelli had again been out of his area
talking with people who were supposed to be work-
ing and that McNeil would not put up with such
conduct any longer.
McNeil, who was leaving that evening on a short
vacation, telephoned Production Manager Karl Sor-
man at his home and told him about the Morelli inci-
dent. Sorman suggested terminating Morelli in view
of the fact that McNeil also told him that he had
given Morelli a final warning on another matter a
week or so earlier. However, McNeil said that per-
haps they ought to check Morelli's personnel file first
and make a determination later. Sorman approved
the idea. The next day Sorman examined Morelli's
file, which showed a number of reprimands, spoke to
Beaudin who told him no telephone call had been
received for McNeil the previous day and that Mor-
elli had not been in McNeil's office, discussed the
situation with the plant manager, and decided to ter-
minate Morelli. Since Morelli's shift on July 17 was
scheduled to start at 11 p.m., Sorman appeared at the
plant shortly before the start of the shift to tell Mor-
elli he was fired.2 During the termination interview,
according to Sorman, Morelli was not able to give
him a satisfactory explanation of the alleged tele-
phone call for McNeil the previous day.
The Administrative Law Judge credited Morelli's
account of what happened on July 16; namely, that
during his break period Morelli had received a tele-
phone call for McNeil and he had gone to mill # 1
only to find McNeil and tell him so. In making this
credibility determination, the Administrative Law
Judge simply ignored without explanation' the testi-
mony of employees Beaudin and Thornton which, in
2 In the printed form used for recording the termination , Sorman gave the
following explanation of the termination
Termination for failure to comply with company rules Was in the
Sander area without permission-on last shift Was warned for the
same thing in the past These rules were reviewed in a crew meeting 4
weeks ago
3 Although the Administrative Law Judge set forth a summary of the
testimony of employees Beaudin and Thornton, his failure to discuss the
reasons for rejecting their stories while crediting that of Morelli is unaccept-
able, in view of the additional undenied testimony of both individuals which
bore directly on Morelli's credibility. Both Beaudin and Thornton were
disinterested, neutral witnesses , whereas Morelli was the subject of the
8(a)(3) allegation with a major interest in the outcome of the proceeding
Such a situation requires careful consideration by an Administrative Law
Judge and some statement of why he rejected the internally corroborative
testimony of the two disinterested witnesses in favor of the uncorroborated
testimony of the alleged discriminatee
our opinion, completely undermines the validity of
the Administrative Law Judge's credibility determi-
nation. Thus, Beaudin testified that Morelli could
not have received a telephone call for McNeil during
the relevant time ; that he had so informed McNeil
and Sorman; that, on July 19, Morelli called him and
asked him to say if asked that on the evening of July
16 there might have been three calls, one of which he
missed,4 and that Beaudin refused.
Employee Thornton testified that he worked in
mill # 1, and that on the evening of July 16 Morelli
came to him and asked him "how things were going"
and whether he had signed a union card. During the
conversation, Morelli also asked whether Thornton
had seen any "white hats" (foremen). When Thorn-
ton reported that he had seen McNeil, Morelli left.
Further, Thornton testified that Morelli had said
nothing to him about a telephone call for McNeil.
Finally, Thornton testified that on the evening of
July 17, Morelli asked him to say, if he was ques-
tioned as to why Morelli was in Thornton's area, that
the reason was an outside telephone call for McNeil.
About a week later, Morelli asked him again to give
the same answer if questioned. This testimony of wit-
nesses Beaudin and Thornton is in every essential
point uncontradicted.
In Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 3, 1951), the Board
set forth the standard of review of an Administrative
Law Judge's findings of fact. The Board stated:
In all cases, save only where there are no excep-
tions to the Trial Examiner's [now Administra-
tive Law Judge] proposed report and recom-
mended order, the Act commits to the Board
itself, not to the Board's Trial Examiners, the
power and responsibility of determining the
facts, as revealed by the preponderance of the
evidence. Accordingly , in all cases which come
before us for decision we base our findings as to
the facts upon a de novo review of the entire re-
cord, and do not deem ourselves bound by the
Trial Examiner's findings. Nevertheless, as the
demeanor of witnesses is a factor of conse-
quence in resolving issues of credibility, and as
the Trial Examiner, but not the Board, has had
the advantage of observing the witnesses while
they testified , it is our policy to attach great
weight to a Trial Examiner's credibility findings
insofar as they are based on demeanor. Hence
we do not overrule a Trial Examiner' s resolu-
tions as to credibility except where the clear pre-
The importance of this is that Beaudin had already told McNeil and
Sorman that during the break period only two calls had been received, but
that no satisfactory connections had been made in the case of either call If
there had been a third call, this might have confirmed Morelli's story
PERMANEER CORPORATION 369
ponderance of all the relevant evidence convinc-
es us that the Trial Examiner's resolution was
incorrect.
An Administrative Law Judge cannot simply ig-
nore relevant evidence bearing on credibility and ex-
pect the Board to rubber stamp his resolutions by
uttering the magic work "demeanor." 5 There are two
adversary witnesses to the July 16 incident, Morelli
and McNeil. There are also two neutral witnesses
who gave important testimony bearing on this inci-
dent, Beaudin and Thornton. Neither of these neu-
tral witnesses was impeached. The testimony they
gave is virtually uncontradicted. Beaudin's testimony
is that no telephone call was received for McNeil;
Thornton's that Morelli said nothing to him about a
telephone call for McNeil. Moreover, both testified,
and Morelli admitted, that Morelli asked them to lie
about their accounts of what happened so as to save
his job. Both refused Morelli's request. The testimo-
ny of these two witnesses, in our opinion, establishes
overwhelmingly that the Administrative Law Judge's
crediting of Morelli's account of what happened on
July 16 was incorrect, that Morelli did not receive a
telephone call for McNeil, and that Respondent cor-
rectly believed that the telephone story was a fabrica-
tion created to excuse Morelli's presence in an area
where he had no right to be.6 On the basis of the clear
preponderance of all the relevant evidence,' we
therefore overrule the Administrative Law Judge and
find that Morelli was in violation of a lawful compa-
ny rule when McNeil found him in mill # 1 speaking
to employee Thornton.
The Administrative Law Judge found, in the alter-
native, that, even if it is assumed, arguendo, that
Morelli had violated the rule, the real reason for his
discharge was not the rule violation but his union
activities. We cannot agree. In the first place, there is
insufficient evidence of strong union animus on the
part of Respondent! In little more than a year, Re-
5Interboro Contractors, Inc, 157 NLRB 1295, 1301, in 14 (1966)
6 Member Penello finds Lizdale Knitting Mills, Inc, 211 NLRB-(1974),
distinguishable in that there the Administrative Law Judge's credibility res-
olutions were based in part on the demeanor of the witnesses but were
adequately supported by objective evidence , whereas here demeanor is the
sole ground for crediting Morelli and all other evidence is to the contrary
' Local 918, international Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America (Tale-Lord Manufacturing Company, Inc
206 NLRB 382 (1973) Cf Tom Johnson, Inc, 154 NLRB 1352 (1965).
8 Our dissenting colleague emphasizes the testimony of former Foreman
Roger Pump as demonstrating a strong union animus on the part of the
Respondent Pump testified that, at a management meeting in 1972, during
a prior union campaign , someone remarked that the Union would fall flat
on its face if Morelli were not around Pump also stated that, although
similar violations by other employees were overlooked, he had written an
official warning for Morelli , dated July 14, 1972, for being in the wrong
lunch area only after a superior had instructed him to get rid of Morelli
This evidence , which might be construed as showing union animus, con-
cerned statements made approximately I year before Morelli 's discharge
spondent was confronted with two separate union or-
ganizational campaigns. In both instances, it agreed
to consent elections. In neither campaign was it
charged with having committed unfair labor practic-
es to thwart the organizational efforts of its employ-
ees. The Administrative Law Judge himself found
that Respondent never forbade employees from en-
gaging in union activities during their nonworking
time in such designated areas as restrooms, lunch-
rooms, and the foremen's offices. In fact, he also
found that Morelli used the lunchroom to campaign
on behalf of the Union during his nonworking time,
and this fact was known by management. This is
hardly the conduct of an employer intent on defeat-
ing a union organizational campaign by unlawful
means.
In the second place, Morelli on July 16 was in vio-
lation of a lawful rule restricting him to the lunch-
room of mill #2 on his lunchbreaks when he was
found by McNeil talking to Thornton in mill #1.
The rule was contained in a handbook distributed to
employees in June, and its importance had been
stressed to employees. Morelli admitted that he was
aware of the rule. In fact, he testified that he had
been orally reprimanded by Foreman McNeil only a
few weeks before his discharge for violating the rule
by being out of his production area during his break
period. The rule was important and had a threefold
purpose: to have employees congregated in one area
so that they could be quickly called upon to fight
fires, an ever present danger in a plant with highly
combustible material; to have employees immedi-
ately available in case of a production breakdown
since the plant operated on a continuous basis; and
to prevent accidents to employees who might other-
wise wander about the plant.
In the third place, the Administrative Law Judge's
inference that the rule was disparately enforced
against Morelli is not supported, in our opinion, by
the clear preponderance of the evidence. Before ter-
minating Morelli, Production Manager Sorman re-
viewed Morelli's personnel file which contained writ-
ten reports of eight reprimands given to Morelli be-
tween June 1972 and July 1973. The reprimands
covered such offenses as disturbing other employees
on the job, failure to comply with company rules by
taking a lunchbreak in a nondesignated area, late-
ness, late reporting of expected absence because of
and before the 1972 election Morelli was not discharged pursuant to these
alleged statements , but instead continued to work for another year During
that period , several other incidents occurred involving Morelli, some of
them during the 1973 organizing campaign , for which he received written or
oral reprimands but no discharge in March 1973, he was suspended for I
week for insubordination because he swore at a foreman, but he was not
discharged It is evident that the 1972 statements were too remote in time to
constitute probative evidence of union animus at the time of the 1973 dis-
charge
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sickness, insubordination, and, finally, on July 8,
1973, approximately a week before discharge "taking
reading material out of lunch room into work area."
This latter reprimand by Foreman McNeil contained
the phrase "Final Warning." This "Official Warn-
ing" was signed by Morelli. There is no evidence that
any employee with a comparable record of rule in-
fractions and reprimands received less lenient treat-
ment from Respondent than did Morelli.9
We therefore find that the General Counsel has
not met his burden of proving that Respondent dis-
charged Morelli for a discriminatory reason. Accord-
ingly, we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
I consider my colleagues' reversal of the Adminis-
trative Law Judge's credibility resolutions to be total-
ly unwarranted. Their justification for this rather ex-
treme action is the Administrative Law Judge's al-
leged failure to discuss the testimony of employees
Beaudin and Thornton which seemingly is in conflict
with the credited testimony of employee Morelli, the
alleged discriminatee. With this as their basis, my
colleagues then go on to substitute their own evalua-
tion of the record evidence, accepting, as credited,
testimony which the Administrative Law Judge ex-
pressly discredited and discrediting testimony which
he expressly credited, all without any further expla-
nation or justification other than the assertion of the
Board's right to make its own credibility resolutions.
My objections are many, but first and foremost
among them is that my colleagues have relied on an
erroneous predicate in reaching their conclusions.
Contrary to my colleagues' statement, the Adminis-
trative Law Judge did not "simply ignore" the testi-
9 The Administrative Law Judge also stated
the timing and precipitous nature of Morelli's discharge by Sor-
man, the next day after the telephone call incident , which was Sorman's
day off, nevertheless, felt the matter so urgent that he came to the plant
from his home at II o'clock at night , is a cogent circumstance from
which it is not too unreasonable to draw an inference of proscribed
motivation and a conclusion of discrimination
We must respectfully disagree with the Administrative Law Judge' s evalu-
ation of this incident We think it proves nothing July 17, the day after the
telephone call incident, was not Sorman 's day off, he actually worked on
that day His normal working hours did not extend to I I p.m However,
Foreman McNeil had left for a vacation at the end of the shift on July 16,
and Morelli started to work at II p in on July 17 If Sorman was to dis-
charge Morelli, he had to appear at that time There is therefore no signifi-
cance in this incident
mony of Beaudin and Thornton. On the contrary, the
Administrative Law Judge specifically discussed
their testimony and although he did not expressly
discredit them, he did fully credit the testimony of
Morelli whose testimony conflicts with that of Beau-
din and Thornton. Such a situation is not uncommon
in cases that come before us and it would indeed be
unfortunate if we were to proceed on the basis that
an Administrative Law Judge's failure to expressly
resolve each and every bit of conflicting testimony
could result in the overturning of those credibility
resolutions he has made. Of course I recognize that
an Administrative Law Judge's credibility resolutions
are not to be held inviolate, but when testimony is
specifically discussed, I believe it must be deemed to
have been considered and rejected in the face of con-
flicting credited testimony.
Even if I were to accept my colleagues' premise
that the Administrative Law Judge failed to consider
Beaudin's and Thornton's testimony, which I do not,
I would still consider their approach unjustifiable. In
this case we are not dealing with a simple "one on
one" credibility resolution, but rather with the credi-
bility of numerous witnesses whose credibility is not
necessarily affected by a resolution of the conflicts
between the testimony of Morelli on the one hand
and Beaudin and Thornton on the other. Thus, while
I accept the proposition that the Board has the power
to make credibility resolutions, there must be, in the
absence of demeanor, a clear basis in the record for
crediting one witness over another, an uncommon
situation where, as here, the testimony of numerous
individuals is involved. In such circumstances, when
the charge is made that certain testimony has been
ignored or overlooked, it would seem to me that the
better course of action would be to remand the mat-
ter to the Administrative Law Judge for specific find-
ings rather than for us to open up all the credibility
resolutions made and offer a wholly independent
evaluation of all the record testimony.
It would serve no purpose here to engage in an
extended discussion of the record evidence bearing
upon Morelli's discharge, but I would be remiss in
my duty if I did not at least indicate that there is
considerable record testimony in support of the Ad-
ministrative Law Judge's conclusion that Morelli was
discharged because of his union activities.
Respondent's contention is that after numerous
warnings for plant rule infractions, Morelli was dis-
charged on July 16 for being in violation of rule 5
which required that employees take their lunch
breaks in designated areas in their departments. Al-
though the Administrative Law Judge found that
rule 5 was lawful on its face, and I agree, he conclud-
ed that the rule was used as a pretext to mask the
PERMANEER CORPORATION
unlawful motive for discharging Morelli and that
even if Morelli had in fact violated rule 5, the dispari-
ty in its enforcement evidence a discriminatory appli-
cation of the rule to Morelli. Of particular signifi-
cance in evaluating the Administrative Law Judge's
findings is the testimony of Roger Pump who was
formerly Morelli's foreman. Pump's testimony is
credited by the Administrative Law Judge and ap-
parently accepted by my colleagues. In relating to
events which occurred about the time of the first
union campaign, Pump testified that he was instruct-
ed by his superiors that he was to give particular at-
tention to the enforcement of the plant rules where
Morelli and Pruitt (another union activist) were con-
cerned and that Foreman Peterson told him that if it
were not for Morelli, there would be no union activi-
ty at the Brownsville plant and, therefore, an effort
should be made to rid the plant of him. In connec-
tion with the application of rule 5, Pump testified
that it was violated almost every day, but that the
only written warning Pump ever issued for such an
infraction was to Morelli and that was because he
(Pump) had been instructed by Production Manager
Sorman to get rid of Morelli. Pump further testified
that both Production Manager Sorman and Plant
Manager Calbaum gave orders to the supervisors
that they wanted Morelli out of there and that, as a
result, Pump felt obligated to write Morelli up for
being tardy even though other employees who were
habitually late did not receive similar treatment. Also
interestingly enough, Foreman McNeil, whose testi-
mony is accepted by my colleagues, even admitted
that in the 2-1/2 years he had been a foreman, he
never reprimanded any employee for violating rule 5,
except Morelli. Then, we have the testimony of em-
ployee Dean Pruitt, which appears to have been
credited by the Administrative Law Judge, wherein
Pruitt states that 2 or 3 days after Morelli's discharge,
Foreman McNeil told him: "You'd better watch out,
you're going to end up just like your buddy, because
you'll be next on the list."
The Administrative Law Judge concluded that the
generally consistent testimony of the General
Counsel's witnesses was reliable and consistent with
certain undisputed and demonstrable facts. In my
judgment, the record evidence provides ample sup-
port for his findings and conclusions. Accordingly, I
would adopt the Administrative Law Judge's Deci-
sion in its totality.
DECISION
HENRY S. SAHM, Administrative Law Judge. This pro-
ceeding was heard at Portland, Oregon, on December 18,
19, and 20, 1973,' pursuant to a charge filed by United
371
Paperworkers International Union, AFL-CIO, on July 19.
A complaint which issued on October 31, as amended on
November 28, presents questions whether Respondent,
Permaneer Corporation, herein called the Company, dis-
charged Martin Morelli in violation of Section 8(a)(3) of
the National Labor Relations Act because of his activity
on behalf of the Charging Party, herein called the Union,
or because he was an unsatisfactory employee. It is also
alleged that Respondent Company discriminatorily and
disparately enforced an overly broad rule restricting union
activities and solicitation by its employees on their own
time in violation of Section 8(a)(1).
Upon consideration of the entire record, including ob-
servation of the testimonial demeanor of the witnesses, and
after due consideration of the briefs filed on February 5,
1974, by the General Counsel and by the Company, there
are hereby made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Delaware corporation, engaged in
Brownsville, Oregon, in the manufacture of particle board,
employs approximately 150 employees and does a gross
annual volume of business in excess of $500,000, and annu-
ally ships outside the State products valued in excess of
$50,000 and purchases supplies originating outside Oregon
valued in excess of $50,000. It is found that Respondent is
an employer engaged in an activity affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
The Union, United Paperworkers International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED VIOLATION OF SECTION 8(A)(3)
A. The Discharge of Morelli 2
Martin Morelli, the alleged discriminatee, was hired by
Respondent on March 27, 1970, and terminated on July 17,
1973. For the last 2 years of his employment, Morelli was
one of two press operators in charge of one of the two
production lines in each of the two mills which comprise
Respondent's Brownsville operation. During the period of
time pertinent herein, he operated mill #2 production line.
His duties also entailed operating and controlling the per-
formance of various other machines which were a part of
the production line and utilized in the manufacturing of
particle board. Particle board is produced from wood chips
and resin which is compressed by the application of pres-
sure generated by a machine. This operation was per-
formed by the press operator seated in a raised console
from where he oversaw the production of the particle
board. These various duties of Morelli, for which he was
All dates herein refer to the year 1973 unless otherwise indicated
2It was stipulated and also found herein that Pump, Lehto, Lemons,
Davis , Sorman , and McNeil , at all pertinent times , were supervisors within
the meaning of Sec 2(11) of the Act
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsible, were governed and regulated by various mech-
anisms under his control located in a raised console from
which he was able to view the production line in order to
direct and to observe whether it was functioning properly.
In April 1972, some of Respondent's production and
maintenance employees became interested in organizing a
union at its Brownsville plant. Morelli, who was in the
forefront of these union organizational activities, polled the
employees to ascertain whether they were for or against
having a union represent them. When he determined a suf-
ficient number of employees favored a union, he and Dean
Pruitt, a coworker, contacted officials of Local 2791 of the
Lumber and Sawmill Workers Union, AFL-CIO,3 with
respect to the possibility of organizing a union at
Respondent's plant. They were given union membership
application cards which authorized the union to act as bar-
gaining agent. Commencing in May 1972, Morelli solicited
his fellow employees to sign these cards for the eventual
purpose of having said union represent the production and
maintenance employees in collective-bargaining negotia-
tions with the Respondent Company. Morelli obtained sig-
natures in the plant lunchrooms on his 20-minute lunch
period and his two coffeebreaks of 10 minutes each. He
also solicited employees before and after work and at their
homes. Union meetings were held at his home and at the
city hall of Brownsville, a community of 1,034 inhabitants 4
Morelli continued his union efforts up until the election.
Pursuant to the said union filing a petition on August 4,
1972, the National Labor Relations Board conducted an
election on September 7, 1972. The union lost the election.
On June 2, 1972, the Company issued an "official warn-
ing" to Morelli for disturbing other employees who were
working and instructed him to refrain from walking
around the plant during his nonworking time, and to re-
main during his breaks in the lunchroom. On July 14, 1972,
he was cited for "taking his lunch in a non-designated
area." On August 25, 1972, he was charged with being tar-
dy for work on three occasions within a period of 12 days.
On October 20, 1972, he was warned for "missing time
withoutjust cause." The written warning stated that "he or
anyone else knows when they are going to be sick, or other
reason to miss before the time comes." Morelli was given
another warning on November 6, 1972, for calling in sick
after his shift started and instructed that in the future he
must notify the Company before the starting time of his
shift.
At the end of January 1973, about 3 months after the
first union election, supra, Morelli went to Dillard, Oregon,
to speak to George Moore, manager of the Company's en-
gineering department, who outranked Calbaum, the num-
ber one man at the Brownsville plant. Morelli's testimony
on cross-examination reads as follows:
business, and this is just like politics, I said. I feel like
I'm being discriminated against. I've been harassed. I
said I'd like it to cease. . . . He said if you do your
job, you won't have any problems. I said, well, what's
going to guarantee me that the company can't do to
me what they've been doing to me. He says, well, I
don't know that they're doing anything to you. . . . I
proceeded, then, to show him a letter of a person that
I'd brought down that stated pointblank the company
had been discriminating against me. He said he
couldn't disprove the letter, that it could have merit,
but he's not working up there and Gerry Calbaum was
in charge up there.
Well, I'll tell you, I didn't accomplish much, because I
went around and around with George [Moore] for
two-and-a-half hours, I think, my wife waiting for me
in the car. I know when I walked out of there I hadn't
accomplished anything, because I talked to him about
discrimination charges that I was going to file with the
NLRB if they couldn't stop this, and he says, well, you
don't have a case, we haven't fired you, or anything.
And I said no, but maybe I can get something bring-
ing this up to the federal government. He said, well,
I'll talk to Gerry [Calbaum] about it when he comes
down here, and like I'm telling you now, he says, dust
do your job and you won't have any trouble. And I
says, well, that doesn't give me any assurance they're
not going to keep on doing what they've been doing. I
said my blood pressure's starting to go up and I'm
becoming a physical wreck. And that was about the
conversation. We'd keep on repeating it over and over
and over again. That's all we did. It didn't help me one
bit. . . . The same thing, just do my job and they
can't do anything to me, and I'd say, well, they can,
anybody can be fired, and I said this all stems from
union activity. Then he turned around and said, well,
why do you want a union in there, and I says, Mr.
Moore, because of better benefits and the wages are
higher at White City, and that's because, he said, of an
area difference, and I said I don't know. I said I'm not
a statistician on wages in different areas. It was dust
generally. Then this conversation came down to why I
wanted a union at Permaneer, and I dust told him I
thought the Union had to be there for the men's bene-
fit, that's all there was to it.
When Respondent 's counsel said to Morelli that it was
he who initiated this conversation about the Union with
Moore, Morelli responded:
So, I came down and laid my cards on the table [to
Moore]. I'm a press operator at Permaneer, and I said
you know I give you 101 percent out there. I said I
believe in my union activities out here being my own
s This union is not the Charging Party Union in this proceeding
U S Department of Commerce , 1970 Census of Population, P.C
(1)-A-39
No, he asked. He came forward and asked why I
wanted a union, because I told him they were pushing
on me down at work because of my union activities.
This was after the [first] election was held, and they
started their campaign to get on my back. Then when
Ernie [Lehto] left, it went on and on and on.5
Lehto, a foreman, was employed by Respondent until early January
1973
PERMANEER CORPORATION
In March 1973, Morelli contacted officials of the United
Paperworkers International Union, the Charging Party
herein , and indicated that he and other production and
maintenance employees of Respondent Company were in-
terested in having the Union represent them. Morelli was
shown a collective-bargaining agreement that the said
Union had executed with another company and he was
also given union literature to distribute to employees which
explained said Union's health and welfare benefits as well
as other information.
Morelli was issued two written "official warnings" for
"insubordination" both of which bear the same date of
March 5, and was suspended from work for a week. (G.C.
Exh. 12(a) and (b).) Morelli testified that General
Counsel's Exhibit 12(b) was not given to him until a week
after it was dated, at which time the Company suspended
him. Morelli's version appears to be correct as it will be
noted that General Counsel's Exhibit 12(a) is signed by
him, but not Exhibit 12(b) which states "Refused to sign."
Nine or 10 organizational meetings were held at
Morelli's home between June and the election on October
25, of which 7 meetings were held prior to his termination
on July 17. Morelli testified that in the "middle" of June he
observed Cy Davis, a company foreman, drive slowly by
his home when a union meeting was being held and that
Davis "looked at whose cars was there. . "
Morelli testified that on July 15, at approximately 7 p.m.,
in the lunchroom of mill #2, while on a rest break, he and
Frank Springman, an employee, were soliciting Marv Can-
nell, a coworker, to sign a union authorization card when
Fred McNeil, his immediate supervisor, "stuck his nose in
the lunchroom and was watching what we were doing. He
then proceeded to walk into the lunchroom and asked
[Cannell] a question . . about some maintenance problem
.. . looking down at the table where the card was being
signed. He [McNeil] then got his answer from [Cannell]
and left the lunchroom."
On July 8, McNeil issued a written "final warning" to
Morelli charging him with "taking reading material out of
lunchroom into work area." McNeil testified he saw Mor-
elli in a sitting position in the production line console with
his head bent over and assumed he was reading something
although he was unable to see what, if anything, Morelli
was holding in his hands. Morelli stated that he never read
while on duty (except company written orders to him) and
specifically denied he was reading a book on July 8 during
working time. Morelli's version that he had a paperback
book in his hip pocket and that McNeil grabbed it and
removed it from his pants hip pocket while Morelli was
walking down the aisle of the plant the same day is cred-
ited.
On July 16, at approximately 7:15 p.m., while Morelli
was on his 20-minute lunchbreak, and examining his pro-
duction report in Foreman McNeil's office, the phone
rang. His testimony on cross-examination follows ". . . a
female voice asked for Fred McNeil. I said McNeil was not
present there. I said if the party would call back in a few
minutes I would try to locate him. I hung up." Morelli then
373
walked out of the foreman's office and into the sander area
of the plant. He spoke for about a minute to employee
Thornton who was working at the time. He testified that
when he finished his conversation with Thornton:
I proceeded to leave Thornton and walk up the main
aisle. I got approximately to the sander . . . machine
. . 20 to 25 yards [from where he spoke to Thornton].
Fred McNeil was walking along the aisleway. . . . I
ran up to him and I told him that I had a phone call
for him. . . . He said O.K. I told him that a party was
going to call back for him. He dust kind of looked at
me blank. I relayed the message and left. I went back
to my lunch area.. . .
On cross-examination, Morelli testified that when Mc-
Neil told him he did not believe him, "I dust shrugged my
shoulders. About anywhere from five or six minutes later
... he proceeded to come into the lunchroom. He told me
that he'd like to talk to me outside privately. . . . Mr. Mc-
Neil told me he didn't believe that I had a phone call and
he told me that if he caught me out of my area again,
breaking a shop rule, that he would fire me."
That same night, he and Dean Pruitt, another employee,
after their shift ended at 11 p.m., waited for the crew of the
sanding department to get off work in order to solicit them
to join the Union. As they were talking to these employees,
continues Morelli's testimony, "I looked up and there was
foreman McNeil driving by. Mr. McNeil started to go out
of the parking lot and head down the road. He then
stopped and backed up, came back and drove by very
slowly and was looking at what we were doing. We were
signing cards with the members . . . [with the employees
coming off the shift]. I say they're members now because
there's a union.6 He proceeded then to make a loop around
the building " Morelli continued that McNeil proceeded to
drive around the mill a second time at which point he
parked his car. Accompanied by Robert Monroe, relief
shift production foreman of mill #1, McNeil walked over
to where Morelli was soliciting employees and told the
group: ". let's break it up here, you guys, and get on
home. .. "
As Morelli was reporting for work the next night at II
p.m. on July 17, Karl Sorman, a supervisor, whose day off
was July 17, nevertheless, came from his home to the plant
that evening, and handed Morelli, whose shift started at I I
p.m., a written termination notice, dated July 17, signed by
Sorman which stated:
Termination for failure to comply with Company
Rules Was in the sander area without permission. On
last shift was warned for the same thing in the past.
Morelli testified that at the time Sorman handed him the
6 The Charging Party Union (which was opposed by Local 2791, Lumber
& Sawmill Workers ) won the second election on October 25 , and was certi-
fied by the Board on November 21, 1973, as the collective -bargaining repre-
sentative of Respondent 's production and maintenance employees See fn
3, above
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above notice that he told him he was being discharged "for
being in the sander area, and that I had repeatedly broken
shop rules... ." When Sorman enumerated the reasons
for his discharge, Morelli disputed their veracity, testifying
that "[he] told him that this was just because of [his] union
activities." Furthermore, Morelli told Sorman, he was in
the sander area because he had a telephone message for his
foreman, McNeil.
General Counsel's Exhibit 11, which states that Morelli
was "taking reading material out of lunchroom into work
area," is undenied except that Morelli claimed that the en-
tire time he was in the work area the book remained in his
hip pocket. Exhibit 12(a) dated March 5, 1973, reads: "In-
subordination." There is a notation on General Counsel's
Exhibit 12(b) which states Morelli refused to sign it. Gener-
al Counsel's Exhibit 13 charges Morelli with calling in sick
after his shift started, and his foreman "discuss[ing with
him his] missing work and excessive absenteeism." General
Counsel's Exhibit 14, which Morelli signed, states he: "was
warned verbally about missing time without just cause.
Comments were that he or anyone else knows when they
are going to be sick or other reason to miss before the time
comes." General Counsel Exhibit 15, which states Morelli
was tardy three times in 12 days, he did not sign. General
Counsel Exhibit 16, dated July 14, 1972, bears Morelli's
signature and states that he failed to comply with company
rules, namely, that he took his lunchbreak in a nondesig-
nated area. General Counsel's Exhibit 17, dated June 2,
1972, which Morelli did not sign, was a "verbal" warning
for, inter alia, "disturbing other employees on the job."
On cross-examination, Morelli testified that when Sor-
man handed him his termination paper he said to Sorman,
"I think this is a bunch of b.s. You're discriminating
against me all the way. I said it's just definitely union right
here, you know that, and he said, no, it's not, we've been
fair with you all the way. ..." Morelli continued that he
told Sorman that he did not believe he could be fired for
being out of his work area during a lunchbreak because he
went into the plant's working area for approximately 3
minutes, in order to find his foreman, McNeil, in order to
deliver a telephone message to him. Morelli also accused
Sorman of having fired him without making any effort to
ascertain the circumstances under which he left his desig-
nated area.7 See section II, E, infra.
Dean Pruitt who has been employed by Respondent
Company since March 30, 1970, works on the same shift as
Morelli. Pruitt testified as follows: "During the latter part
of May, while in the office of foreman Monroe, they were
discussing the 1972 union election when Monroe asked
him when the organizational drive of the Paperworkers
Union would commence, to which Pruitt replied, 'Some-
where between the 14th and 17th of July, 1973."' 8 Pruitt
Morelli testified that it is permissible under certain circumstances and
while on one's break to speak with other employees He gave as an example
that in his position as press operator a situation might apse where it would
be feasible for him to inquire of the saw operator, who is an integral part of
the production line, whether his operation was functioning properly, partic-
ularly if there was a problem which required correction Spnngman, an
employee, testified that employees can talk to one another while they are
working if it occurs in the area where they are assigned to work
8 Present also during this conversation were Foremen McClain and Wine-
gar of mill #1
continued that, 2 or 3 days after Morelli was discharged,
Fred McNeil, who had been Morelli' s immediate supervi-
sor, said to Pruitt: "You'd better watch out, you're going to
end up just like your buddy, because you'll be next on the
list." Pruitt also testified that in the latter part of May the
Company distributed to the employees at a crew meeting a
booklet entitled "Employment and Labor policy-Pre-
pared for employees of Permaneer Corporation." At that
time , Foreman Monroe explained to his crew the contents
of the booklet, including rule 5,9 which provides: "Lunch
breaks are to be taken in the designated area for the re-
spective departments." 10 Monroe explained, inter aha, to
the members of his mill # 1 crew, according to Pruitt, that
their "break area is the lunchroom of the foreman's office,
or you could stay at your job post." 11
Frank Springman has been employed by Respondent
since March 1972 as a saw operator in mill #2. He testified
that rule 5 frequently was not honored by the employees as
he has seen employees not assigned to mill #2 taking their
breaks in the mill #1 lunchroom "almost every day" and
vice versa. At such times, Springman stated that when this
occurred Lemons and Nastasi, both foremen, were present
and he never observed either of them enforcing the desig-
nated area rule. Springman did testify, however, that at a
crew meeting in 1972 Foreman Lemons told his crew mem-
bers that they were to use the lunchroom in the mill in
which they worked.
John Tucker, who is presently employed by the Compa-
ny, testified that he and other employees take their breaks
in both lunchrooms and that he has never been repri-
manded for doing so. Tucker testified that he was instruct-
ed at a crew meeting in 1972 by his foreman, Gordon Lem-
ons, to take his breaks in his designated area which he
explained was in the "break rooms" or "foreman's office"
of "your own mill." Tucker continued that he eats his
lunch in the plant at the saw which he operates. He also
stated that employees are free to talk to other employees
who are working "as long as we're in our own areas, our
own mill."
Roger Pump worked for Respondent for 3-1/2 years,
and was a foreman for 2-1/2 years during his employment.
He left the Company on November 6, 1972, 2 months after
the first election. Pump's testimony corroborated that of
Morelli with respect to the salient issues of this proceeding;
to wit, after union activity began in 1972, at a time when he
was a foreman, Pump was instructed by his superiors to
strictly enforce all the plant rules with respect to the em-
ployees' conduct while at work, particularly Morelli and
Pruitt, who were the employee leaders of the union move-
ment. Foreman Peterson, continued Pump, made the state-
ment that if it were not for Morelli there would be no
union activity at the Brownsville plant and therefore an
effort should be made to rid the plant of him.
An attorney of the Timber Operators Council, a trade
9 G C Exh 9, p 24
10 Generally, employees of mills #I and #2 were to remain during their
breaks in the lunchrooms of their respective mills
11
The employees do not eat in the foreman's office but are permitted to
go there on their breaks as their production records were posted there for
them to examine Also, it appears they were permitted to eat their lunches at
the press console
PERMANEER CORPORATION 375
association to which Respondent Company belongs, ad-
dressed its officials and foremen on three different occa-
sions during the course of the union campaign then being
conducted by the Lumber and Sawmill Workers Union,
with respect to what the law provides regarding what they
could and could not do. The first of these three meetings
was held sometime prior to July 14, 1972, and the last one
about a month before the first election of September 7,
1972. The matters that were considered at these three meet-
ings, testified Pump, concerned the manner in which the
Company would "combat" the Union's organization cam-
paign. Leading the discussion was Gerry Calbaum, plant
manager, and also the superintendents of mills # I and #2,
Sorman and Don Josh. Pump's testimony continues as fol-
lows. "We discussed the means we were going to use to
combat literature being passed out, what legal rights we
had, what we could do and what we couldn't do." "The
lawyer of the Timber Operators Council told us what was
legal and illegal and Gerry Calbaum also supplemented the
lawyer's instructions." Pump continued: "Well, Martin
Morelli's name was brought up, Dean Pruitt's name was
brought up as being two members that were actively sup-
porting the union, and one remark specifically made by
Ken Peterson, who was swing shift foreman in Mill No. 2,
stated the fact that if Martin Morelli wasn't there, the
union would fall flat on its face. Also that if any of these
people would violate any of the rules, that we had decided,
you know, what we could do, what was legal that we could
do to combat the union, and we were to write these people
up a written warning . . . such as eating in a nondesignat-
ed break area."
Pump stated that the "official warning" to Morelli, dated
July 14, 1972 (G.C. Exh. 16), which charged him with vio-
lating "company rules" by lunching in a nondesignated
break area, was issued to him after the meetings when the
Timber Operators Council attorney had addressed the
foremen and officials. Pump testified that the "rule was
disobeyed almost every day I was there," specifying an
employee by the name of Kevin Durheim. "There were dust
so many people, it's hard [to recall their names], that's a
year and a half ago. But every day it was done." Pump
stated he observed employees in the wrong lunch area dur-
ing their lunchbreaks but that the only written warning he
ever issued was to Morelli because I was told by Karl Sor-
man to get rid of him, "in a couple of different instances,"
one of which was "one of those three meetings that we had,
and I'm almost sure it was the first one," and the supervi-
sors who gave him these orders were Calbaum and Sorman
both of whom "stated they wanted Marty Morelli out of
there."
Reference was then had to General Counsel's Exhibit 17,
dated June 2, 1972, a warning which Sorman wrote regard-
ing Morelli in Pump's presence, for disturbing working em-
ployees and not being in his assigned designated area dur-
ing his breaks. Although this warning is in Morelli's per-
sonnel file and is alleged as one of the reasons for
Respondent discharging him, Pump testified that Morelli
was not present when Sorman wrote it nor did he show it to
Morelli (as evidenced by it not being "received" by Morelli
who did not sign it) and that Sorman said to Pump that the
written warning "didn't have to be presented to
[Morelli]." 12 While Sorman was writing up this warning
(G.C. Exh. 17), in Pump's presence, the latter testified that
Sorman said: "He'd better have his bills paid, because he's
leaving. . . . He's on his way out. . . . I want this warning
written and I says, for what reason are you going to write
it? And he says for insubordination."
Pump concluded his direct testimony by stating that Sor-
man ordered him to write up and sign General Counsel's
Exhibit 15, a "verbal warning" which states that Morelli
was tardy three times, but Pump stated he disregarded the
order "because I felt it was an unfair treatment. There were
several other people out at the mill at that time that were
habitually late, or constantly out of their break area, or in
violation of other company policies, and yet no action was
taken against them."
On cross-examination, it was elicited from Pump that
two other employees who were active in the Union were
still working for Respondent when he left the Company's
employ in November 1972, but he did not know whether
the other men were employed by Respondent at the pre-
sent time.l3
B. The Company's Explanation for Morelli's Discharge
The Company denies that Morelli was discharged be-
cause of his union activities. It states that he was dis-
charged for the valid reason that he left his production area
in the plant without permission and talked to an employee
and then fabricated a story to his supervisor regarding the
reason for his being outside his designated mill area. See
General Counsel's Exhibit 10. Respondent points to a ver-
bal warning on June 2, 1973, by Sorman to Morelli about
similar conduct. This first warning coupled with other ver-
bal and written warnings in his personnel file, a 1-week
suspension for insubordination during March 1973, in con-
junction with his "fabricated" reason for being in the san-
der area on July 16, argues Respondent, made discharge "a
logical choice of action for Sorman." The production man-
ager, Sorman, gave the following reasons for deciding to
terminate Morelli on July 17, 1973:14
Morelli has a past history of plant rule violations in his
file and his file shows numerous verbal and written
warnings which he has either signed or has acknowl-
edged at the time they were given out. More than a
year ago, Morelli received a written warning for dis-
turbing other employees on working hours while he
was on break and for being out of his break area. The
record shows that this subject has been discussed both
12 The plant's policy is that when an employee was given a written warn-
ing it had to be shown to him before it was placed in his personnel file, in
order for him to sign it which established that he had read it
13 The Board and courts have held that testimony with respect to other
employees who engaged in union activities and were not discharged is im-
material and irrelevant to the issue of whether the alleged discriminatee was
discharged in violation of Sec 8 (a)(3) Mission Clay Products Corporation,
206 NLRB 280 (1973), Nachman Corp v N L R B, 337 F 2d 421, 424, (C A
7, 1964), and cases there cited , N L R B v Puerto Rico Telephone Co, 357
F 2d 919, 920 (C A I, 1966), N L R B v W C Nabors, Co, 196 F 2d 272,
276 (C A 5, 1952), cert denied 344 U S 865 (1952), N L R B v Shedd-
Brown Mfg Co, 213 F 2d 163, 174-175 (C A 7, 1954)
14 See ALJ Exh I, pp 2 and 3
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in crew meetings and with Morelli personally. Morelli
acknowledged the final written warning McNeil had
issued him July 8, 1973 for infraction of another com-
pany rule, and he was advised at that time that if he
goofed up once more he was-he could be out and
would be discharged. Prior to the final written warn-
ing, Morelli had an official written warning for insub-
ordination for which he took a one week's suspension
from work. Last year [1972] Morelli got about five
written warnings for such things as unexcused absenc-
es and also taking his lunch break in the wrong lunch
room. When McNeil told me about finding Morelli at
the sander on the 16th, I also determined that on three
occasions, specifically July 12, July 15 and again earli-
er on July 16, another employee and another foreman
had seen Morelli in unauthorized areas of the plant.
These facts, coupled with the final warning given July
8, and the one week's suspension in March, along with
the history of similar problems in 1972, I determined
that his continued infractions wouldn't be tolerated
any longer. I proceeded to make out a termination slip
with the reasons for discharge and informed my gener-
al manager of my pending actions.
On cross-examination, Sorman testified that the reasons
for firing Morelli were "out of his working area, disturbing
another employee at work, and the events around the
phone call... .
Gordon Lemons, a foreman, testified in answer to a
question by company counsel, that while Morelli was un-
der his supervision, "Normally, he's quite good, efficient at
his job, and belligerent . . . . Well, he doesn't like to be
given orders. He likes to do things his own way and not
have the foreman tell him how to do things" but, stated
Lemons, he "didn't allow it" and kept him "in line." When
asked if he knew about Morelli's union activities, he an-
swered: "Of course."
Sorman, production manager, described Morelli's union
activities as follows: "Morelli has been an outspoken advo-
cate of the Union for some time, and I don't think there is
anyone in the plant from the general manager to the clean-
up man who hasn't heard it from him personally, one way
or the other." 15
John Beaudin testified on behalf of Respondent that
around 7 p.m. on July 16 he relieved Morelli on the console
for the latter's 20-minute lunchbreak. About 10 minutes
later, he saw Morelli emerge from the lunchroom, walk
over to where Beaudin was working, and ask him where
McNeil was, to which Beaudin replied that McNeil was in
the saw area. Later Beaudin saw McNeil and Morelli walk-
ing toward the foreman's office. Shortly thereafter, McNeil
inquired if there were any telephone calls for him, to which
Beaudin replied there were two, but he did not know from
whom as there was something wrong with the phone as he
was unable to receive incoming calls on the phone located
in the production line console.
is
This casts doubt upon the veracity of McNeil, his immediate supervi-
sor, who testified that it was not until May or June 1973 that he learned of
Morelli's union activities, when it is considered Morelli was active in orga-
nizing employees since April or May 1972
Beaudin testified he received two telephone calls from
Morelli 3 days after his discharge and that Morelli asked
him if he would tell the company officials, if they should
inquire, that on the night of July 16, there could have been
three phone calls, "one of which I might have missed, and
if I did, it would probably help him win his case." Beaudin
refused, telling Morelli that he had already told McNeil
there were two phone calls.
Larry Thornton, an employee who was a witness for the
Company testified that Morelli telephoned him at home on
the evening of July 17 and asked him "if I was questioned
about what he was doing over in the sanding area [it] was
because there was an outside phone call for Fred McNeil
... . He said something about if I don't do it he could
lose his house and his car, you know, wreck his family."
McNeil, who was Morelli's immediate supervisor, testi-
fied he received information at about 7 p.m. on July 16 that
Morelli was outside his working area. When McNeil inves-
tigated, he saw Morelli speaking to Thornton. McNeil tes-
tified that as he approached them, and as soon as Morelli
saw him, "he came running up to me and said he'd been
looking all over the plant for me and wanted to know if I'd
received a telephone call. I asked him what telephone call,
and he stated that he-first, I asked him if he had sounded
the maintenance horn to call me back to the area and he
said I couldn't hear the horn over there . . . . I started
questioning him about the phone call to see who had
called, and he said in fact he had lost the call, that he was
unable to talk to the party on the incoming call.16 I asked
him if he realized he was out of his production area.n I
asked him to return to his mill 2 lunch room." It is uncon-
tradicted that, during the time this phone call incident
transpired, Morelli was on his 20-minute lunchbreak.18 Mc-
Neil did not speak to Thornton, who was present. Instead,
McNeil walked to where Beaudin was on the console oper-
ating the production line while Morelli was on his break
When McNeil was asked why he did this, he answered:
"Well, the fact that he couldn't tell me who was calling in,
it was very apparent that he didn't really have any phone
call to report to me."
Although McNeil acknowledged that the quality of
Morelli's work was good, he testified he "found him to be
a rather difficult employee to supervise. . . . He chose not
to abide by the . . . rules, the plant rules and procedures
.. I found him violating quite a few of those consistent-
ly.. . . He failed to wear his hard hat, took reading mate-
rial on the job with him, left his work area without permis-
sion." He concluded this phase of his testimony by stating
that, in the 2-1/2 years he has been a foreman, he never
reprimanded any employee for violating the rule against
not being in his designated area except Morelli. Later he
changed his testimony, stating that he had also orally repri-
manded Thornton, and then at another point in his testi-
16 See Beaudin's testimony, above, concerning his inability to receive in-
coming phone calls at the same time on July 16
" McNeil admitted on cross-examination that employees are authorized
to take phone calls and do so "frequently" when he is not present
18 Robert Monroe, relief shift production foreman, in testifying on direct
examination as to the meaning of rule 19, p 26 of G C Exh 9, which
provides "Telephone calls will be received for emergencies only," stated
that an employee who answers a plant phone should locate the foreman by
sight or by going to the console and having them buzz for him
PERMANEER CORPORATION
mony he stated with respect to other employees he had
orally reprimanded , that it was "very few" he had disci-
plined for being outside their designated areas during work
or breaktime . When asked to name other employees who
had violated this rule, he was unable to do so.
McNeil also denied Morelli 's testimony that at the end
of the shift on July 16, outside the plant , he (McNeil) had
told a group of employees not to congregate there and to
go on home . McNeil also denied testimony of Pruitt, an
active union proponent , that after Morelli was discharged
he told Pruitt that he would be the next to be fired.
In January 1973, testified McNeil , he received a tele-
phone call from Morelli who asked if he could see him as
he wanted some "advice ." McNeil replied that "it was odd
that he would ask me for advice in lieu of the fact that he'd
beat a path to the front office to try to make trouble for
me." McNeil told Morelli he would speak to him if he
"secured permission ." McNeil continued that Morelli told
him "he felt that his job was insecure and that people were
after him , and . . . he said his wife was about to have a
baby, she was nervous and upset about it, and he couldn't
do any good work because he was nervous and upset and
he wanted to know what I thought about him obtaining an
appointment with George Moore [who was the superior of
the plant manager] . I told him I was a firm believer in the
chain of command and I thought he should talk to his
foreman , and if he could get satisfaction from him, fine
and dandy ; if he couldn 't, talk to his superintendent, who's
Carl Sorman , and if he couldn't get satisfaction from him,
to seek an appointment with Mr . Calbaum [plant
manager] , and if he couldn 't secure satisfaction from him,
then to try to obtain an appointment with Mr . Moore."
McNeil testified on cross-examination that shortly after
Ernest Lehto , a foreman , left Respondent's employ in Jan-
uary 1973 Morelli spoke to him (McNeil ) and asked him if
he had ever been ordered by his superiors to fire him. Mc-
Neil denied this whereupon Morelli told him that Lehto
had so informed him. McNeil also denied to Morelli that
he had told Bud Miller , a former employee of Respondent,
that Morelli was being transferred from mill # 1 to mill #2
because "management wanted to get Morelli out of there."
Karl Sorman , production manager , testified that at
about 8 p.m. on July 16 McNeil telephoned him at his
home and informed him that "he had found Morelli dis-
turbing another employee at work on the sander line" and
wanted to know what action should be taken . Sorman testi-
fied that he asked McNeil what Morelli was doing in the
sander area and McNeil replied that Morelli, when he was
accused of being out of his designated area , gave as an
excuse that he "had supposedly received a phone call" for
McNeil and that he was looking for him in order to deliver
"the message .... McNeil also informed me," continued
Sorman , "that he had written Morelli a final warning a
week or so prior to this incident on another matter . I said I
think I would terminate him. McNeil said , well, maybe we
should check his personnel file and make a determination
later , and I said OK , I would do that the next day at work
. , .. The next morning [July 17] I pulled Morelli 's file, [I]
looked it over , discussed the situation with my superior,
Gerry Calbaum , made the determination to release Morelli
from work."
377
At 11 p.m. on July 17, the time at which Morelli's relief
shift (I1 p.m. to 7 a.m.) was scheduled to report for work,
Sorman came to the plant Just as Morelli was punching the
timeclock to check in and told him he wanted to talk to
him. Sorman's testimony continues: "I asked him what
he'd been doing in the sander area and he told me he was
delivering a message on a telephone call. I asked him about
the message and he said the phone lines were out of order,
and that the phone call was for Fred McNeil, but he didn't
have any message to deliver. He'd lost the party on the line.
I asked him, well, what did he have to tell the foreman, and
he couldn't really answer. I asked him why he hadn't sig-
naled for the foreman from the console. And he didn't
have a real answer for that." 19 Sorman 's testimony contin-
ues: "I had discussed earlier in the day [July 17] with John
Beaudin the validity of the phone call. John Beaudin told
me there had never been any phone calls at that time and
that Morelli was not in the foreman's office at that time."
Sorman then told Morelli that he "felt this infraction was
reason to terminate him, and that's what I did." Sorman
concluded his version of what occurred when he fired Mor-
elli by stating Morelli told him after he was so notified that
"he felt he had been discriminated against in being termi-
nated and I more or less just listened and said I'm sorry." 20
C. Resolutions of Credibility 21
This is a case where the General Counsel's witnesses are
contradicted on many of the salient issues by the witnesses
for Respondent. Nevertheless, after observing the witnesses
and analyzing the record as a whole and the inferences to
be drawn therefrom, and reconciling, where possible, the
conflicting evidence, I conclude that the generally consis-
tent testimony of the General Counsel's witnesses is relia-
ble. It is not only consistent with certain undisputed and
demonstrable facts in this case, but also their testimony
logically conformed with the uncontradicted chronological
sequence of events and attendant circumstances in this
proceeding. Moreover, the impression of the trier of these
facts is that their testimony was forthright and true. The
impression that they were testifying truthfully became a
conviction when their versions were found, in the main, to
be consistent with the attendant circumstances in this case
and not substantially shaken by able counsel for the Re-
spondent who vigorously, searchingly, and thoroughly
cross-examined them. This conclusion is based on observa-
tion of the General Counsel's witnesses with respect to the
accuracy of their memories, their comprehension, and their
general demeanor on the stand in answering the questions
put to them. Judge Learned Hand describes it as "[Find-
ings] based on that part of the evidence which the printed
words do not preserve." With respect to the resolutions of
credibility made herein, it is not meant to imply that the
19 It is undisputed that Beaudin was in the console at the time in question,
relieving Morelli for his lunchbreak
20 See parts of Sorman's testimony, supra, which reveal that Sorman stat-
ed he had other reasons for terminating Morelli However, when he fired
Morelli , the only reason Sorman gave him was that he was in the sander
department , out of his designated area
1 N L R B v Walton Manufacturing Company, 369 U S 404, 408 (1962).
R J Lison Co v NLRB, 379 F 2d 814, 817 (C A 9, 1967)
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trier of these facts accepts as credible everything that was
testified to by all the General Counsel's witnesses. It suffic-
es to say, in the words of Judge Learned Hand, that "it is
no reason for refusing to accept everything that a witness
says, because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to believe
some and not all." 22
With respect to McNeil's credibility, it is interesting to
note that his testimony may have been colored by his feel-
ings toward Morelli. In January 1973, he stated, Morelli
asked him for "advice," as he felt his job was "insecure."
McNeil stated that this request surprised him in view of the
fact that Morelli had "beat a path to the front office to try
to make trouble for me." See also footnote 15, supra. More-
over, McNeil's complaints, which had nothing to do with
the quality of Morelli's work, which he described as satis-
factory, involved trivial incidents, such as the phone call,
failing to wear his hard hat, and taking "reading material
on the job."
D. Discussion and Concluding Findings
The Company maintains that Morelli was discharged for
cause. The General Counsel, however, contends that the
Company's assigned reasons for discharging Morelli were
pretextual and that it discharged him because of his union
activity and in order to rid itself of the union leader in the
plant. The issue, therefore, is one of fact: What was the
actual motive for the discharge? 23 Was there considerably
more than a temporal coincidental connection between
Morelli's union activities and his summary and precipitate
discharge thereafter? 24 Because the issue is one of subjec-
tive intent, direct evidence is rarely obtainable and conse-
quently the trier of the facts "may rely on circumstantial as
well as direct evidence . .." 25 Moreover, a discharge is
unlawful under Section 8(a)(3) of the Act even if the
employee's union sympathies or activities, which are pro-
tected, are only partially responsible for the employer's ac-
tion; a business reason cannot be used as a pretext for a
discriminatory discharge. The test is whether the reason
ascribed for the termination of the employee or the pro-
tected union activities is the moving cause behind the dis-
charge. In other words, would Morelli have been dis-
charged but for his protected union activities? 26 The law is
well settled that an employee does not forfeit his statutory
rights when in good faith he seeks to bring a union into the
employer's plant, even if his conduct may fairly be regard-
ed as irritating,27 aggressive,28 or insubordinate.29 That pro-
22
N L R B v Universal Camera Corporation, 179 F 2d 749, 754 (C A 2,
1950), reversed on other grounds 340 U S 474 ( 1951), See I C Sutton Han-
dle Factory v NLRB, 255 F 2d 697, 698 (C A 8, 1958) Cf NLRB v
Homedale Tractor & Equipment Co, 211 F.2d 309, 316 (C A. 9, 1954), Dyer
v McDougal, 201 F 2d 265, 269 (C A. I)
23 Santa Fe Drilling Co v N L R B, 416 F 2d 725, 729 (C A 9, 1969)
N L R B v Miller Redwood Co, 407 F 2d 1366, 1369 (C A 9, 1969), Shat-
tuck Denn Mining Corp v N L R B, 362 F 2d 466, 470 (C A 9, 1966)
24 N L R B v Condensor Corporation of America, 128 F 2d 67, 75 (C A 3,
1942)
25 Santa Fe Drilling Co v N L R B, supra at 729 , Shattuck Denn Mining
Corp v N L. R B, supra at 470, N L R B v Intl Union of Operating Engi-
neers [Sub Grade Engineering Co b 216 F 2d 161, 164 (C A 8, 1954)
26
N L R B v Ayer Lar Sanitarium, 436 F 2d 45, 50 (C A 9, 1970)
tection is lost only where such conduct becomes malicious
or unreasonably disruptive of order and discipline.30 Such
is not the case here.
Here Morelli, a competent employee, was suddenly re-
moved from one of the more important jobs held by a
rank-and-file employee. His duties and responsibilities as
press operator on one of the two production lines in the
Company's Brownsville operation entailed in addition the
operation of other machines which controlled the produc-
tion of the particle board manufactured by the plant. It is
undisputed that Morelli was an able and satisfactory work-
er31 When McNeil, his immediate supervisor, was asked
what he thought of Morelli's "work," he answered: "As far
as his ability to make good board, he had the ability to
make good particle board," which is the principal product
that the plant manufactures.
Gordon Lemons, a supervisor, testified on redirect ex-
amination by Respondent's counsel in answer to a question
as to the quality of Morelli's work that "Normally, he's
quite good, efficient at his job, and belligerent," in that "he
likes to do things his own way and not have the foremen
tell him how to do things"; although, stated Lemons, this
did not occur while Morelli was under his supervision. On
cross-examination, when asked if he knew about Morelli's
union activities, he answered: "Of course."
Morelli was admittedly a capable, qualified, and compe-
tent press operator, whose competency was recognized by
his employment for over 3 years. Apparently, Respondent
became disenchanted with him and fired him only when he
became a leading union activist. "Such action on the part
of an employer is not natural." Under these circumstances,
it is difficult to justify Respondent's discharge of Morelli,
especially for such trivial reasons.32 Moreover, the record
here warrants the finding that Respondent discharged
Morelli because of his union activities and because he
spearheaded the Union's activities at the plant. It was he
who contacted the two unions, the one in 1972 and the
other, the Charging Party Union, in the 1973 organiza-
27 See John Klann Moving and Trucking Company v N L R B, 411 F 2d
261 (C A 6, 1969), cert denied 396 U S 833 (1969), N L R B v Interboro
Contractors, Inc. 388 F.2d 495 (C A. 2, 1967)
28 Compare N L R B v Symons Manufacturing Company, 328 F 2d 835,
836 (C A 7, 1964), N L R B v Charles H Poindexter (Northside Electric
Co) ' 353 F 2d 524, 526 (C A. 4, 1965), cert denied 385 U.S 857 (1966)
29 Cf Falcon Plastics v N L R B, 397 F 2d 965, 966 (C A 9, 1968),
N L R B v Thor Power Tool Company, 351 F 2d 584, 586 (C A 7, 1965),
N L R B v Leece-Neville Company, 396 F 2d 773, 774 (C A 5, 1968), Socony
Mobil Oil Company, Inc, v N L R B, 357 F 2d 662, 663 (C A 2, 1966)
30 See Hagopian & Sons, Inc v N L R B, 395 F 2d 947, 952-953 (C.A. 6,
1968), Falcon Plastics, supra at 967
31 Moore, who was the superior of Calbaum, the manager of the Browns-
ville plant, did not reply when Morelli told him that "you know I give you
101 percent out there [ in the plant ] " Under certain circumstances , silence
may be as probative a basis for inference as words or deeds Crane Co v
James McHugh Sons, Inc, 108 F 2d 55, 59 (C.A 10), United Electrical,
Radio & Machine Workers [ Marathon Electric Mfg Corp ] v N L R B, 223
F 2d 338, 343 (C.A D C, 1955), Wittlin v Giacalone, 171 F 2d, 147, 148
(C A D C) Another cogent reason for crediting those parts of Morelli's
testimony upon which findings of fact herein are based , and which have
special significance with respect to the issues herein , is the failure of Re-
spondent to produce Moore, a material witness , which warrants drawing an
adverse inference . Interstate Circuit v U S, 306 U S 208, 225, 226, Concord
Sufphes & Equipment Corp, 110 NLRB 1873, 1879 (1954)
E Anthony & Sons v NLRB , 163 F 2d 22, 26-27 (C A D C, 1947)
PERMANEER CORPORATION
tional campaign, and aided the union officials in their in-
plant efforts to obtain his fellow employees' signatures on
union authorization cards. It is undisputed that this was
known by management when the overt nature of Morelli's
organizing activities are considered. Furthermore, it is not
too unreasonable to infer that Morelli's union activities
would not ordinarily go unnoticed or escape the attention
of management when it is recalled this small plant is locat-
ed in a village of approximately 1,000 mhabitants.33 Final-
ly, Moore, who was the number one man in the company
hierarchy in the region where the Brownsville operation
was located, knew of Morelli's union activities.
Despite the denials of Respondent's witnesses, Roger
Pump's testimony is credited that when he was a foreman
he was instructed by his superiors to enforce strictly all
plant rules against Morelli. Pump stated that rule 5, the
designated area provision, was repeatedly violated by other
employees, but the only one cited by him was Morelli "be-
cause I was told to get nd of him by Karl Sorman
Pump added that Calbaum, the plant manager, also gave
him the same order. Pump also quoted Peterson, a fore-
man, as stating at a foreman's meeting that if Morelli were
not working at the plant, the union's organizational efforts
would fail. These cumulatively probative incidents demon-
strate the Company's antagonism toward Morelli's leading
role in union activities at the plant. The Company's opposi-
tion to Morelli's "concerted activity for the purpose of . .
mutual aid or protection .. ." is the essence of Section 7
which guarantees employees the right to engage in such
protected activities. Accordingly, if Respondent discharged
Morelli for such activities, prima facie, this was an unfair
labor practice. Once the General Counsel has established a
prima facie case of unfair labor practices, the burden of
going forward with evidence sufficient to rebut the General
Counsel's prima facie case and to prove its affirmative de-
fense that Morelli's discharge was for dust cause falls upon
the Respondent.34 An employer, when it denies the dis-
charge of an employee and avers that he was discharged
because of disregarding plant rules, is pleading an affirma-
tive defense, the legal incidence of which is that the burden
of going forward with evidence to prove the contention
shifts to the employer.35 Respondent has not adduced suffi-
cient evidence to rebut the General Counsel's evidence that
Morelli's discharge was discriminatorily motivated for the
reasons hereinafter explicated.
When Respondent pleaded an affirmative defense that
Morelli was terminated upon being found in an area of the
plant in violation of the Company's designated area rule,
the burden of proving this shifted to it. It is found that the
evidence adduced by it to prove this affirmative defense
33 Brezner Tanning Co, 50 NLRB 894 (1943 ) Cf N L R B v Jos Antell,
Inc, 358 F 2d 880 (C A 1, 1966), which held that the smallness of a plant
alone does not make a prima facie case , but is a factor which counts in the
balance when all the other circumstances (such as union animus , reason-
ableness of the assigned grounds for discharge viewed in the light of past
practice , etc) are examined
34Lassing, et al d/b/a Consumers Gasoline Stations, 126 NLRB 1041,
1042, fn 6 ( 1960), Brady Aviation Corporation v N.L R B , 224 F 2d 23 (C A
5, 1955)
35 Cf NL RB v Fleetwood Trailer Co , 389 U S 375 378 (1967)
N L R B v Great Dane Trailers , 388 U S 26 , 34 (1967)
379
was not only lacking, but, on the contrary, the record re-
veals that Morelli was attempting to deliver a telephone
message to McNeil, which was not a violation of this rule,
as evidenced by McNeil's admission that employees are
authorized to take phone calls when he is not present. A
fortiori, in view of the fact that Morelli at the time was on
his lunchbreak. Robert Monroe, manager of one of the two
plants, testified to the same effect. Moreover, McNeil ad-
mitted on cross-examination that employees are authorized
to take phone calls and do so "frequently" when he is not
present.
Respondent's denials of any proscribed motivation for
Morelli's discharge are not credited inasmuch as the record
clearly reveals that the main impetus for its decision to
terminate him was his union activities. The Company's
knowledge of his union activities and that the motive for
his discharge was this activity is shown by substantial evi-
dence in the record. "It need not be the only reason, but it
is sufficient if it is a substantial or motivating reason, de-
spite the fact that other reasons may exist...... 36
Furthermore, Respondent's attempts to establish lawful
grounds for discharging Morelli are patently pretextual in
that the reasons of complaint assigned by Respondent's
witnesses for his termination are remarkable for their trivi-
ality, lacking in their specificity and doubtful in their verity
when subjected to the searching glare of inquiry. McNeil
claimed, inter aka, that Morelli was a "difficult" employee
to supervise, repeatedly violated company rules, failed to
wear his hard hat, and "took reading material on the job
with him." These generalized, broad, petty, specious offen-
ses which were not only not proved, but also so lacking in
specificity that it was difficult to impugn, are not credited
for the reasons delineated above and below. Respondent's
multiple and shifting reasons for explaining the Company's
decision to fire Morelli are often indicative of discrimina-
tory intent. For example, McNeil, in addition to claiming
Morelli was out of his designated area during his lunch-
break, also accused him of lying about having received a
phone call for him, but he did not indicate his reasons for
making this serious charge. The giving of contradictory
reasons may be considered in determining the real motive
and inconsistent explanations are a circumstance not only
indicating the motivation, but also warranting the conclu-
sion that McNeil is not to be credited, and it is so found. It
is believed that some, if not all, of these alleged reasons for
terminating Morelli were afterthoughts raised for the first
time at the heanng.37
Furthermore, the timing and precipitous nature of
Morelli's discharge by Sorman, the next day after the
phone call incident, which was Sorman's day off, but who,
nevertheless, felt the matter so urgent that he came to the
plant from his home at I1 o'clock at night, is a cogent
circumstance from which it is not too unreasonable to
draw an inference of proscribed motivation and a conclu-
sion of discrimination within the meaning of Section
8(a)(3) of the Act. "Coincidence in union activity and dis-
76 N L R B v Whitin Machine Works, 204 F 2d 883 (C A 1, 1953), enfg
100 NLRB 279 (1952)
17 Dant & Russell, Ltd, 92 NLRB 307, 320 (1950). lntertown Corp, 90
NLRB 1145, 1188 (1950), Condensor Corp v NLRB, 128 F 2d 67 (C A 3,
1942), N L R B v Somerset Shoe Company, I I I F 2d 681 (C A 1, 1940)
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge renders an employer vulnerable...." 38 Finally,
the arguments made in its brief and testimony adduced by
the Company at the trial do not persuasively advance its
claim of legitimate motivation, and the failure of the
Company's explanations to withstand scrutiny only serves
to buttress the inference of interdicted motivation culmi-
nating in a finding of discrimination. For, when a reason
given for a discharge is false, the inference may be drawn
that there is another reason.39 Such unconvincing testimo-
ny leads to the conclusion that Respondent's dissatisfac-
tion with Morelli was more fictitious than real and played
no part in the decision to discharge him. It is significant
that the complaints urged against him had to do with a
period in time concurrent with Morelli's known organizing
activities occurring in Respondent's plant looking toward
organizing its employees by two unions, one in 1972 and
the other in 1973. Any doubt as to the validity of the find-
ing that Morelli's discharge was discriminatorily motivated
is dispelled by Sorman on his direct examination admitting
that, upon learning about the telephone incident from Mc-
Neil around 8 p.m. on July 16, he told McNeil: "I think I
would ternunate [Morelli]." The cogent importance of this
judgment is the probative fact that Sorman's decision was
made before he had given Morelli an opportunity to ex-
plain his version of the telephone incident. In fact, it was
McNeil who cautioned Sorman to first check Morelli's per-
sonnel file and "make a determination later . .." More-
over, it is found, based upon the findings herein and credi-
bility resolutions, that there was a telephone call for Mc-
Neil and that the reason for Morelli being outside his
designated area during his lunchbreak was due to his at-
tempt to find and so inform McNeil.
On the basis of the foregoing and the entire record, as
well as the suggestive indicia inhering in the circumstances
surrounding Morelli's termination and the weaknesses of
the alleged justifications therefor, that he was discharged
for violating company rules, it is found that his union ac-
tivities were the real reason, and, therefore, discrimination
in regard to his hire and tenure of employment, thereby
discouraging membership in the Union in violation of Sec-
tion 8(a)(3) and (1) of the Act.4°
E. The Alleged Violation of Section 8(a)(1)
Since May or June 1973, Respondent has posted and
enforced against Morelli the following rule at its Browns-
ville plant:
Lunch breaks are to be taken in the designated area
for the respective departments.
The General Counsel alleges that this rule is unduly
broad, and, therefore, unlawful in that it restricts employ-
ees from union activities and union solicitation when they
38 N L R B v Council Mfg Corp, 334 F 2d 161, 164 (C A 8, 1964), Signal
Oil & Gas Co v NLRB , 390 F 2d 338, 342 (C A 9, 1968)
39
N L R B v Homedale Tractor & Equipment Co, 211 F 2d 309, 314
(C A 9, 1954), Shattuck Denn Mining Corp, supra, 470
4" Cf N L R B v Tennessee Packers Inc, Frosty Morn Div, 390 F 2d 782,
784 (C A 6, 1968)
are on their own time. Moreover, argues the General
Counsel's representative, the Respondent Company en-
forced the above-quoted plant rule in a disparate and dis-
criminatory manner against employees known by it to be
active in the Charging Party Union. He points out that the
two most active union adherents, Morelli and Pruitt, were
the only employees cited for violating this rule, although
violations of it by other employees were prevalent.
The Respondent contends that there were three reasons
for promulgating this rule: fire safety, maintaining produc-
tion without breakdowns or unnecessary work stoppages,
and requiring employees to stay in a designated area is
necessary for their safety, as otherwise nonworking em-
ployees on their break who wander around the plant might
incur injuries from fast-moving forklift trucks that operate
in aisleways and between the two plants. The Company
also stresses that it is necessary to know where employees
are during their breaks in the event of an emergency as
they are summoned from the two lunchrooms in order to
fight fires and eliminate problems that arise on the produc-
tion line. Furthermore, declares Respondent, another rea-
son for requiring employees to remain in their designated
areas of the plant is to prevent them for safety and produc-
tion reasons from talking with or disturbing working em-
ployees.
In the situation at bar, the General Counsel has cited no
decisional law nor has any been found that supports his
contention that the rule here at issue, forbidding lunch-
breaks anywhere other than in the designated area is "un-
duly broad in that it restricts employees from union activi-
ties and solicitation when they are on their own time."
There is a failure of proof that such was the situation in
this case, as there is an absence of evidence that the rule
was adopted for a discriminatory purpose. On the contrary,
the testimony reveals that Respondent never forbade em-
ployees from engaging in union activities during their non-
working time, while they were in their designated areas of
the plant. Such areas included restrooms, lunchrooms, and
the foremen's offices. In fact, it is uncontradicted that
Morelli used the lunchroom to campaign on behalf of the
Union during his nonworking time which was known by
company management.
It has been found, supra, that Morelli was not in viola-
tion of rule 5 inasmuch as he had received a telephone call
for McNeil and was outside his designated area at the time
because he was delivering the message to McNeil. McNeil
himself admitted that it is permissible for an employee to
leave his designated area when he receives a telephone
message and attempts to deliver it to the foreman. See foot-
note 17, supra, and also footnote 18.
Even if the evidence compelled a finding that Morelli
violated rule 5, which it is found he did not, nevertheless, it
would not have followed that his alleged violation of rule 5
was the main reason for his termination. To the contrary,
substantial evidence warrants the finding that there was
disparity in the application of rule 5 to Morelli as com-
pared with other employees, who also violated the same
rule, but who, perhaps, were more tractable and not en-
gaged in espousing their union views in the aggressive man-
ner employed by Morelli." Therefore, when Respondent
PERMANEER CORPORATION
cited Morelli for being outside his designated area under
such circumstances, this was a discriminatory application
of the rule. Although rule 5 was otherwise lawful,
Respondent's disparate and discriminatory application of
it for the purpose of impeding or discouraging Morelli's
right to engage in union activities violated Section 8(a)(1)
and his subsequent discharge also violated Section 8(a)(3)
of the Act.42
The excellent brief of the Respondent discussing the al-
leged 8(a)(l) and 8(a)(3) violations, and the authorities cit-
ed therein, have been fully considered. However, the Ad-
ministrative Law Judge finds no occasion for lengthening
this decision by citing, distinguishing, or discussing them as
it is believed that the controlling reasons for this decision
have been sufficiently discussed. Moreover, most of
Respondent's contentions are based on an interpretation of
the facts which are not shared by the trier of these facts.
Upon the foregoing findings and conclusions, there are
hereby made the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union, United Paperworkers International
Union, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
41 Cf N L R B v Smith Victory Corporation, 190 F 2d 56 57 (C A 2,
1951)
42 Montgomery Ward & Co, 202 NLRB 978 (1973)
381
3. By interfering with, restraining , and coercing the em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, as specified, supra, the Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(I) of the Act.
4. By discriminating with regard to the hire and tenure
of employment of Martin Morelli, Respondent discour-
aged membership in the aforementioned Union and com-
mitted unfair labor practices within the meaning of Section
8(a)(3) of the Act.
Having found that Respondent was at least partially mo-
tivated in its discriminatory treatment of Martin Morelli by
his activities on behalf of the Union,43 and thereby engaged
in unfair labor practices, the following action is recom-
mended.
THE REMEDY
It is recommended that the Respondent cease and desist
from violating Section 8(a)(1) and (3) of the Act and that it
offer immediate and unconditional reinstatement to Mar-
tin Morelli to his former position without prejudice to his
seniority or other rights, privileges, or working conditions,
dismissing if necessary anyone hired in such job on or after
July 17, 1973, and make Martin Morelli whole for any loss
of earnings he suffered, less his net earnings, with backpay
to be computed in accordance with the formulas provided
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]
43 N L R B v Symons Manufacturing Co, 328 F 2d 835, 837 (C A 7,
1964)