Thore, Inc.; Integrated Power Systems Corp.; And International Switchboard Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 859 (N.L.R.B. 1989)

THORE, INC.
Thore , Inc.; Integrated Power Systems Corporation;
and International Switchboard Corporation and
International Brotherhood of Electrical Work-
ers, Local Union No. 716 , AFL-CIO and Leon
Fassy, Jr. Cases 23-CA-10918-4 and 23-CA-
10935
859
Order of the National Labor Relations Boards" shall read "Posted
pursuant to a Judgment of the United States Court of Appeals En-
forcing an Order of the National Labor Relations Board"
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
September 29, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On April 28, 1989, Administrative Law Judge
Marion C. Ladwig issued the attached decision.
The Respondents filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, I and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Thore, Inc.; Integrated Power Systems
Corporation; and International Switchboard Corpo-
ration , Sugarland , Texas, their officers , agents, suc-
cessors, and assigns , shall take the action set forth
in the Order as modified.
1. Insert the following as paragraph 2(d).
"(d) Post at their facility in Sugarland, Texas,
copies of the attached notice marked "Appendix."s
Copies of the notice, on forms provided by the Re-
gional Director for Region 16, after being signed
by the Respondents ' authorized representative,
shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered , defaced,
or covered by any other material."
9 If this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted By
I The Respondents have excepted to some of the ,fudge's credibility
findings . The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing the findings
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting International
Brotherhood of Electrical Workers, Local Union
No. 716, AFL-CIO or any other union.
WE WILL NOT discharge any supervisor for re-
fusing to lower evaluations of union supporters to
provide a pretext to discharge them.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Leon Fassy Jr. and Ronald
Langley immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions , without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharges, less any net interim earnings,
plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in way.
THORE, INC.; INTEGRATED POWER
SYSTEMS CORPORATION ; AND INTER-
NATIONAL SWITCHBOARD CORPORA-
TION
Robert G. Levy II, Esq., for the General Counsel.
William H. Bruckner and Michael G. McQueeney, Esqs.,
of Houston, Texas, for the Respondents.
Patrick M. Flynn, Esq., of Houston , Texas, for the Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge.
These consolidated cases were tried in Houston , Texas,
296 NLRB No. 110
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on August 29-30, 1988.1 The charges were filed March
14 and April 1, the complaints were issued April 29 and
May 10, and an order consolidating the cases was issued
May 24.
The union organizing drive began in late January. In
February, while vigorously opposing the Union, the
Company repeatedly discussed discharging welding in-
spector Ronald Langley because of his union support.
Quality Assurance (QA) Manager Leon Fassy first ad-
vised President Leonard Voyles that Langley was doing
his job and Fassy would not get rid of him unless or-
dered to. Later in a meeting Voyles blamed Fassy for
union activity getting out of hand in his department,
naming Langley and inspector Otis Hudson. Fassy re-
sponded that he did not feel "I should have to let these
people go because of their union affiliation." Vice Presi-
dent Ronnie Cothron said Langley's written warning (for
tardiness) could be used as a basis for discharging him.
Vice President Albert Ewer later mentioned Langley's
and Hudson 's union affiliation , but Fassy insisted that
"there's no reason to let these people go."
Beginning March 1 the Company engaged in the mass
discharge of Langley, Hudson, and 17 other employees
who had openly displayed their union support by wear-
ing union badges. Ewer summarily discharged Langley
on March 1 in Fassy's absence, and summarily dis-
charged Fassy on March 7 upon his return.
The primary issues are whether the Company, the Re-
spondents, (a) coercively interrogated Ronald Langley
about his union support, (b) discharged Langley discri-
minatorily for engaging in union activity , and (c) unlaw-
fully discharged Leon Fassy for refusing its demand that
he lower his performance evaluations of Langley and
Hudson, in violation of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act.
Before trial, Case 23-RC-5366 was severed from this
proceeding (G.C. Exh. 2). At the trial, Cases 23-CA-
10916, 23-CA-10918, 23-CA-10918-2, 23-CA-10918-3,
23-CA-10918-5, 23-CA-10942, 23-CA-10942-2, and
23-CA-10971 were severed but left pending until com-
pliance with the terms of a non-Board settlement agree-
ment . The settlement agreement provided for offers of
reinstatement , backpay ranging from $336 to $5000 for
seven discharged members of the in -plant union organiz-
ing committee, backpay of $2800 for Otis Hudson, and
backpay ranging from $480 to $1500 for seven other dis-
charged union supporters.
I grant the General Counsel's November 9 motion to
approve withdrawal and termination of the severed com-
plaint cases.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, the respondent corporations, manufac-
tures electrical switchgear at its facility in Sugarland,
' All dates are in 1988 unless otherwise indicated
Texas, where it annually receives goods valued over
$50,000 directly from outside the State. The Company
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Discharge of Ronald Langley
1. His union activity ; interrogation
Quality Control (QC) Inspector Langley became
active in supporting the Union upon hearing from em-
ployee organizer Linda Muhl about an upcoming union
meeting . He talked to employees in the shop area about a
union and told them about the meeting. After attending
the union meeting on January 27 he handed out union
brochures and booklets at the plant and began wearing a
union badge. (Tr. 194, 197-198).
In the absence of Quality Assurance (QA) Manager
Fassy, the Company became concerned about the union
activity of both Langley and Otis Hudson, another in-
spector in Fassy's department. About February 3, shortly
after Fassy returned to the plant following an out-of-
town assignment, Vice President Cothron discussed the
union organizing drive with him. As Fassy credibly testi-
fied, Cothron stated that Hudson and Langley in Fassy's
QA department were backing the Union and that
Hudson was running for shop steward . (Tr. 77-79.)
Cothron did not testify.
Following this conversation with Cothron, Fassy
spoke to Langley in Fassy's office. As Langley credibly
testified, Fassy said he had been "called up front and
griped [at] about this union stuff," and "I need to know
what you have to do with it. . . . they tell me Otis
[Hudson] is running for shop steward, but they don't
know what your involvement is." (Langley recalled in
his pretrial affidavit, R. Exh. 3, that Fassy said "they
called me up front and griped at me about Otis and you;
they want to know what ya'll had to do with this
union.") Langley responded that if Fassy had a problem
with his wearing a badge, "I don't have to wear this
badge . I can remove it . And I can still voice my opin-
ion." (Tr. 200.)
Although Fassy did not consider this to be "interroga-
tion" (Tr. 128), I find that Fassy was requesting informa-
tion from Langley. Contrary to the Company's conten-
tion that this was merely a casual conversation, I find
that under all the circumstances , including the Compa-
ny's vigorous opposition to the Union and the subsequent
mass discharge of employees who "openly displayed
their support of the IBEW by wearing union badges"
(G.C. Exh. 3, par. 2), the interrogation reasonably tended
to coerce employees in the exercise of the rights guaran-
teed by the Act. Rossmore House, 269 NLRB 1176
(1984), enfd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In
agreement with the General Counsel, I find that the in-
terrogation violated Section 8(a)(1) of the Act.
THORE, INC.
. 2. Seeking justification for discharge
President Leonard Voyles personally led the Compa-
ny's vigorous campaign against the Union . Beginning in
February (as stipulated , G.C. Exh. 3) Voyles questioned
employees about their union support and predicted ad-
verse consequences "including discharge and Thore's
going out of business" if the union organizing succeeded.
(I grant the General Counsel 's motion to correct the
spelling of Voyles' name in the transcript.)
About February 8, QA Manager Fassy spoke to
Voyles about hiring more personnel in his department.
Despite the hiring freeze caused by a serious cashflow
problem , as discussed later, Voyles authorized Fassy to
hire a QC supervisor and possibly another inspector. In
the conversation , Voyles referred to Langley's union
support . As Fassy credibly testified , Voyles (who did not
testify) said , "You got Roland Langley that's union affili-
ated and we don't believe that he's doing his job." (Tr.
82-84.)
Fassy responded that Langley "was doing his job .. .
exactly the way I 'd told him , I knew there was probably
conflict with . . . some of the production people, but
that's quality control 's job to make sure it's done right.
I would not get rid of him unless I was ordered to."
(Tr. 83-84.) Although Voyles, after mentioning Lang-
ley's union affiliation , referred only to a belief that Lang-
ley was not "doing his job ," I infer that it was evident to
Fassy that Voyles was linking Langley's union activity
to his job performance-implying that Fassy should dis-
charge Langley because of his union activity.
After this conversation Fassy went to the personnel
department and checked with Human Resources Direc-
tor Julie Boos about job applications on hand . Boos men-
tioned that President Voyles wanted Fassy to "get rid of
the welding inspector" (Langley). Fassy said that he and
Voyles "had discussed Roland Langley . . . and I was
not going to have to fire him." (Tr. 84-85 .) When called
as an adverse witness, Boos admitted that the "Company
was quite concerned about the union organization," that
"it was a topic of discussion ," and that she had conversa-
tions with various members of management . She claimed,
however, "I do not recall" being told by Voyles that he
"wanted any particular person terminated in Quality As-
surance" or recall "telling Mr. Fassy that" (Tr. 53-54).
She appeared on the stand to be less than candid.
The next discussion of Langley's union support was
that same afternoon , about February 8, when Fabrication
and Welding Supervisor Albert Kurtz complained about
Langley's meeting with the welders concerning an unre-
solved problem of oil in the air lines . Kurtz stated that
Langley and employee Jim Drody "were backing the
union trying to get it strong and he felt that they were
stopping the work" in the welding area . (Tr. 87-89, 216-
217.) I note that the settlement agreement provided that
Drody, who was discharged 1 day after Langley's dis-
charge, would receive $5000 in backpay.
The next mention of Langley's union activity was in a
meeting about February 22 (Tr. 94, 384) when problems
in final inspection (not involving Langley, Tr. 95-96,
160, 410-411) were discussed . Speaking to Fassy, Presi-
dent Voyles stated "that the union activity has got out of
hand ," that he was blaming the supervisors and manag-
861
ers, and that Roland Langley and Otis Hudson were in
Fassy's department.
Fassy responded that he did not really feel that the
Union was going to be that strong , especially in his de-
partment ; that they were doing their job and "their
union affiliation was in no way interfering with their
work"; and that "I just didn 't feel like I should have to
let these people go because of their union affiliation."
(Tr. 97-99.)
About the point in the meeting when Fassy was saying
that Langley and Hudson were doing their job, Vice
President Cothron entered the meeting . Obviously aware
of Voyles' desire to discharge union supporter Langley,
Cothron told Voyles that Langley had received a written
warning (by Fassy in November 1987 for tardiness, G.C.
Exh. 13) and "that could go further and maybe getting
rid of Roland Langley ." (Tr. 99-101.)
On February 26 (2 working days before the mass dis-
charge began) Military Sales Vice President Albert Ewer
became responsible for the quality assurance department
(Tr. 371). On that date, before QA Manager Fassy left
again for another out -of-State assignment, Ewer asked
him for evaluations of the five QC inspectors. Although
it was obvious to Fassy that the Company desired him to
lower his evaluations of Langley and Hudson to justify
their discharge , he gave both employees a good evalua-
tion . (Tr. 101-105, 131-132.)
As shown by Ewer's notes of his meeting with Fassy
(R. Exh . 9, Tr. 443-444), Fassy told Ewer that Langley
was the "Welding & fab[rication] inspector/receiving
inspector/silver plate/general-interfaces good with
n[umerical ] c[ontrol] programmer & other shop people-
self starter, quality high, dependable."
After receiving the evaluations , as Fassy credibly testi-
fied, Ewer mentioned that Langley and Hudson "were
union affiliated ." Fassy said that is true "but I believe
they're being over persecuted because of that. The
people are doing their job, I don't know what more we
can ask of them, I don't want to let them go . . . there's
no reason to let these people go as long as they 're doing
their job." (Tr. 105.)
The evidence is clear that instead of complying with
the Company's desire that he lower his evaluation of
these two union supporters , Fassy chose to give accurate
evaluations.
3. Discharge of union supporters
On March 1 , as stipulated , the Company began dis-
charging a total of 19 employees who had "openly dis-
played their support of the IBEW by wearing union
badges, and eight of whom [had ] passed out union litera-
ture at Thore's facility" (G.C. Exh . 3). These included
seven of the eight members of the Union's in-plant orga-
nizing committee (G.C. Exh. 7).
Vice President Ewer discharged Welding Inspector
Langley on March 1, the first day of the mass discharge.
He discharged Final Inspector Hudson on March 11
(G.C. Exhs. l(dd) & (z)).
The non-Board settlement agreement, signed August
17, provided for offers of reinstatement , backpay of
$2800 to Hudson , $5000 each to discharged in-plant or-
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ganizing committee members Jim Drody and Linda
Muhl, and amounts ranging from $336 to $1500 to 12
other discharged union supporters (G.C. Exh. 4).
At the trial Company Attorney William Bruckner ad-
mitted "we committed some unfair labor practices" (Tr.
25).
4. Langley's summary discharge
a. Defect awaiting rework
Welding and Fabrication Inspector Langley rejected a
1SB-D1 cubicle on February 19 and , after the rework,
again rejected it about February 24. The credible evi-
dence shows that after this second rejection , the unit re-
mained in the inspection area about 6 days before the re-
maining rework was done on March 1 . On that date, in
QA Manager Fassy's absence , Vice President Ewer sum-
marily discharged Langley, placing the blame on him for
delaying inspections.
An in -progress inspection tag (R . Exh. 2) shows that
on February 19, Langley first rejected the cubicle, plac-
ing a "D" (discrepancy) stamp on the tag . The same tag
shows that about February 24, after the cubicle was re-
worked , Langley inspected the cubicle again and
stamped the tag with a circle . This indicated that the cu-
bicle had passed inspection and was ready to be sent out
to the paint shop , before the wiring and hardware would
be inserted in the unit (Tr. 266-267).
The cubicle was not sent to the paint shop, however,
because a "D" stamp was placed over the stamped circle
and another "D" stamp was placed to the right of Lang-
ley's signature on the tag . After much testimony at the
trial, the reason for the multiple stamps is clear, but not
the reason for the remaining rework being delayed 6
days.
Sometime after Langley reinspected the cubicle about
February 24 and okayed it with the circle stamp, he saw
a bad weld (Tr. 212). Ordinarily , he would not have re-
jected the unit a second time for the remaining defect,
but would have asked the welding foreman to correct
the defect , saving "all the paper work " (Tr. 267). But
this was after 3 o'clock and there was insufficient time
for the repair to be made and the unit approved before
he left work at 3:30 (Tr. 263-264). "So I stamped over
the okay stamp with another reject , on each end of my
name there , so they would not send it out that day when
I was not there" (Tr. 212-213).
The rejection procedure , as explained by Fabrication
and Welding Supervisor Kurtz, was for Langley to circle
the defect on the unit with a red or black marker, write
up the deficiency on the rejection report, and deliver the
report to a welding leadman or the supervisor (Welding
Foreman Ramando Menjosa (Tr. 357) or to Kurtz him-
self (Tr. 336-337). I infer that Langley followed this reg-
ular procedure because his testimony is undisputed that
"The people that do the rework , yes, they knew" that
something was to be corrected on that unit (Tr. 260-
261).
After working hours that day, Kurtz asked Fassy
about the conflicting stamps on the tag (Tr. 166, 356).
Not seeing the discrepancy sheet (rejection report) and
not knowing that it had been delivered to the welding
department , Fassy placed his okay on the tag for the unit
to be painted . He conceded at the trial : "I should not
have done this, I should have brought [Langley] in but
this was after working hours ." (Tr. 166-167.)
Even though Fassy discovered his error the next day
(Tr. 169) and even though Langley crossed off Fassy's
approval on the tag (R. Exh . 2), the cubicle remained in
the inspection area 6 days until March 1, without the re-
maining rework being done.
There is no explanation for the failure of the welding
personnel to move the cubicle back to the welding de-
partment for the rework . There is no contention that
they did not have the rejection report, that it was not
their job to move the unit, or that there was anything
more that Langley should have done to have the defect
corrected . Langley credibly testified (Tr. 261) that he
was not supposed to move the units and that it is the re-
sponsibility of the rework people to move them after his
inspection . He further testified (Tr. 265):
Q. How do you account for the fact that after
you placed the rejected stamps on there about Feb-
ruary 24th , it just sat there in the hallway [inspec-
tion area] for several days?
A. It depends on the shop 's work flow , if they've
got time to get to it . If the commercial people
would take some of our welders [doing military
work] out of the shop and carry them outside to
help them out there get caught up, if they were
shorthanded . I had no control over how long it
took them to rework these . All I could do was put
them out there and let them know what to do.
I find that welding inspector Langley was not at fault
in delaying the rework of this cubicle from February 24
to March 1.
b. Langley 's summary discharge
QA Manager Fassy was on assignment in California
the week of February 29.
On Tuesday of that week , March 1 , about 10 a.m. as
Inspector Langley credibly recalled at the trial, he was
inspecting five cubicles in the welding inspection area
when Vice President Ewer approached and wanted to
know the status of the cubicles (Tr. 234-235, 247-250).
One of the cubicles was the one he had rejected the
second time on February 24 (see R. Exh . 2). The faulty
weld still had not been repaired (Tr. 265).
As Langley credibly recalled (Tr. 248):
A. I showed [Ewer] some defects that needed to
be repaired before I would okay the five cubicles.
They all had minor things that needed to be done
before they went to paint.
Ewer said that he wanted them to go out that day (Tr.
247), that they had been there long enough (Tr. 268),
and that he wanted Langley to bring him a report of
every defect (Tr. 250). Langley responded : "I'll get with
Ramando" (Welding Foreman Ramando Menjosa) and
"see if we can 't get them ready to go this morning" (Tr.
268).
THORE, INC.
Langley then went to Foreman Menjosa (who did not
testify), brought him over to the inspection area, and
showed him "where the defects were, which were
marked with [a] magic marker ." Menjosa sent somebody
with a dolly. The cubicles were moved one at a time to
the shop area, reworked , and returned to the inspection
area. (Tr. 251.)
As Langley recalled , the twice-rejected cubicle was
repaired and he placed his stamp of approval on the tag
(R. Exh . 2) "Either just before , or just after lunch. It was
around noon ." Langley also credibly recalled that the
rework on the other four cubicles had been done and his
inspection had been finished by the time he was called to
the office (Tr. 251-252, 262).
About 2:50 that afternoon, before Langley had
brought Vice President Ewer the report on defects,
Ewer called him to the office and summarily discharged
him (Tr. 203, 250).
As Langley credibly testified on cross-examination
(Tr. 241-242), Ewer handed him the tag (R. Exh. 2)
from the twice -rejected cubicle and said , "I have a prob-
lem with this," that he "didn 't like the dates on there,
that it took too long" (to get the cubicle inspected).
Langley asked what he wanted to do about it and Ewer
said he "didn 't want to do nothing about it," he "needed
somebody else for the job." Langley then testified (Tr.
242-244):
Q. Well, didn't he ask you why it took so long,
to get it inspected?
A. Yes.
Q. And what did you say to that?
A. That I don't have any control over that. It de-
pends on how long it takes them to get them back
in the shop and rework them, and get them back
out for me to check again.
Q. Did you say . . . it depended on the days, be-
cause if they were put out there on a Friday, it
would take three days before I looked at them?
A. Yes I did say that.
Q. What did Mr. Ewer say after that?
A. That I was terminated.
Q. Did Mr. Ewer say . . . when you said .. .
what do you think we should do about it , did he re-
spond , I don 't think . We've got to have someone in
your position who can get them out quick . Is that
what he said?
A. Yes he did.
Q. Did you say, okay , I can get them out quick,
but we're not going to have quality work?
A. Yes I did.
Q. And what did he say to that?
A. He said , they don't have to be perfect. He
said , they just have to be good enough.
Q. And what did you say?
A. I told him , I don 't know what good enough is.
Somebody needs to tell me what good enough is.
Earlier, on direct examination , Langley credibly testified
(Tr. 202) that he told Ewer : "I don't know what just
863
good enough is. . . . I inspect them the way my supervisor
tells me to inspect them [emphasis added]."
Ewer sent Langley to the personnel office where Judie
Boos gave him a termination form (G.C. Exh . 16) that
gave "Poor Work Performance" as the reason for the
discharge . As Langley credibly testified , Ewer had said
nothing about poor work performance , and nobody had
ever brought to his attention any problems with the
manner in which he did the work . By his demeanor on
the stand, Langley impressed me most favorably as an
honest, forthright witness.
5. The Company's defenses
Without explanation , the Company failed to call Weld-
ing Foreman Menjosa, who not only had firsthand
knowledge of the rework done March 1 on the five cubi-
cles, but also direct knowledge of what happened when
one of them was approved and then rejected about Feb-
ruary 24 (Tr. 357).
The only defense witnesses who had any knowledge of
the inspection of these cubicles were Fabrication and
Welding Supervisor Kurtz and Vice President Ewer.
a. Kurtz' discredited testimony
Kurtz was not questioned on direct examination about
what happened either on February 24 or March 1. On
cross-examination , when questioned about the twice-re-
jected cubicle, he testified that the in-progress inspection
tag (R . Exh. 2) merely shows that 5 days elapsed be-
tween the time it was first rejected on February 19 and
the second time on February 24. "I couldn 't tell you
from this" tag how long it took to go back to his area to
have the defects corrected. (Tr. 350-351.) He was there-
fore in no position to blame welding inspector Langley
for any of this 5-day delay.
Kurtz also admitted that, according to his recollection,
this piece of equipment did not go back to his area, but
remained in the quality control area after February 24
(Tr. 351 ). He knew that Fassy had approved the unit
after Langley's rejection (Tr. 351-352), but he claimed,
"I don 't know" why the unit was still there and not sent
to be painted (Tr. 353). The Company concedes in its
brief (at 26) that "Apparently any arrangements for
painting the 'approved' cubicle were canceled once the
cubicle was rejected again by Mr. Langley."
Thus, even though Kurtz was "trying to escalate the
production cycle" (Tr. 338), he was claiming that he did
not check and did not know the reason for the long
delay between February 24 and March 1. When testify-
ing, he appeared to be trying to give answers that would
help the Company's cause, rather than recount what ac-
tually happened . I discredit his denials of knowledge
about the 6-day delay.
He also denied knowledge of why Langley on March
1 placed the approval stamp on the inspection tag, claim-
ing that the cubical did not require his shop's attention
on that date (Tr. 358). I discredit this testimony as well.
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. Ewer's fabricated defenses
(1) Identical inspection tags
Vice President Ewer claimed that there were three, in-
stead of five, cubicles in the welding inspection area on
March 1 and that the in-process inspection tags on all
three of them "looked exactly the same," with double re-
jection stamps (Tr. 400-401). On cross-examination,
when asked if he knew what happened to the other two
tags, he claimed (Tr. 431-432):
A. I wish I did. We searched for them and
couldn't find them.
Q. Okay. You're saying they're identical?
A. That's correct.
Q. They all have the double stamp?
A. That's correct.
The counsel for the General Counsel then asked Ewer
(Tr. 432-433) to point out any mention of the three iden-
tical tags in Ewer's March 1 memo (R. Exh . 8) to Lang-
ley's personnel file.
A. There is mention of the three cubicles. There
is not mention of the three identical tags.
Q. Well wouldn 't you find that exceedingly
strange, in and of itself, that three cubicles would be
rejected in a precisely and identical manner, with
double stamps appearing on all of them ? Wouldn't
that arouse your curiosity , just looking at it, as for
sheer improbability that that would happen?
A. That's correct . It does.
Q. But there 's no mention of that at all in the
March 1 memo that you authored . Is that correct?
A. That's correct.
Ewer was the last witness . QA Manager Fassy, In-
spector Langley, and Supervisor Kurtz had testified
about a single in-process inspection tab (R . Exh. 2) that
showed a February 24 approval stamp , two rejection
stamps, an initialed approval by Fassy, and Fassy's ap-
proval crossed out. Langley had credibly explained how
it happened : He found a bad weld and rejected the cubi-
cle a second time after first approving it (Tr. 212-213).
Kurtz testified at length on cross -examination about this
one tag (Tr. 349-359) and admitted that to the best of his
knowledge , this one time that he had been testifying
about was "the only time [this problem] really came to
my attention" (Tr. 360).
Both Fassy (Tr. 165-167) and Kurtz (Tr. 351, 356,
359-360, 364) had testified that Kurtz brought this one
tag to Fassy's attention . I infer that if there had been
other double-stamped tags on February 24, Kurtz would
have called them to Fassy's attention.
By his demeanor on the stand , Ewer appeared willing
to fabricate any testimony that might help the Compa-
ny's cause. I discredit, as a fabrication , his claim that
there were three cubicles with identical double-stamped
tags.
(2) Other claims
On the morning of March 1 , according to Ewer,
Welding Inspector Langley was not inspecting the cubi-
cles about 10 o'clock (as Langley testified). Instead,
Ewer claimed that after two supervisors complained
early that morning about not being able to keep their
men occupied because they could not get cubicles
through welding inspection (Tr. 392-393, 395), he found
that Langley was not in the inspection area.
Ewer claimed that he had his secretary start paging
Langley about 9 o'clock , but there was no response from
Langley until about 11 o'clock (Tr. 396). Yet, Ewer ad-
mitted that he did not talk to Langley about a 2 -hour ab-
sence (Tr. 423), and there is no mention of this purported
absence in Ewer's March 1 memo to the file. I discredit
Ewer's claim that Langley was absent from the inspec-
tion area that morning and find no credible evidence that
he was at fault in delaying the inspection of any of the
three or five cubicles.
Ewer claimed that early that same morning, March 1,
Supervisor Kurtz complained to him that Kurtz was get-
ting equipment rejects that were not merited . Kurtz,
however, testified instead that he confronted Ewer once
about quality control in that period of time (Tr. 349),
that this was about a week and a half after Ewer as-
sumed control of quality assurance (Tr. 348-349), and
that this conversation concerned firing Langley (Tr. 348)
because of the double-stamping problem (Tr. 349).
Although Kurtz vacillated in his testimony about the
date of this conversation (Tr. 353-356, 358-361), I infer
that the conversation about discharging Langley for
double-stamping occurred on the afternoon of March 1
before Ewer showed Langley the double-stamped inspec-
tion tag and summarily discharged him. (Ewer was not
in charge of quality assurance when Kurtz discovered
the double rejection stamps on February 24.)
Ewer also claimed that on March 1, as he and Langley
were discussing the cubicles and the inspection tags (Tr.
399),
About this time it was 11:30 in the morning. Mr.
Langley insisted that it was time for him to go to
lunch . I agreed and told him that we would meet
back at the cubicles at 1:00. 1:00 in the afternoon
came and Mr . Langley was not there . Mr. Langley
never showed up until a little after 2:00 in the after-
noon.
Adding this hour to the purported 2-hour absence that
morning would total 3 hours of absences , plus a missed
appointment . Yet, again , there is no mention in Ewer's
March 1 memo about Langley being absent. I discredit
Ewer's claim of this absence as well and find that he was
fabricating his account of what happen that day. I credit
Langley's account instead.
Ewer also made other claims that I discredit as fabri-
cations . He repeatedly testified that Langley told him
that morning, March 1, that the cubicles were defective,
but he claimed that when he invited Langley to show
him the defects, Langley was unable to show him any
(Tr. 397-400, 412-413, 439). Yet there is no mention in
THORE, INC.
Ewer's March 1 memo of Langley being unable to show
him any reported defects . Furthermore , Ewer gave the
following testimony (Tr. 477):
Q. If [Langley] told you on March 1st that he
couldn't show you the defects, why did you not ask
him to show you the corrective action [discrepan-
cy] slip?
A. I can 't answer that sir.
Ewer further claimed that in the afternoon conversa-
tion, Langley admitted there were no defects. He
claimed (Tr. 399-400, 417-418):
When he showed up [after 2 p.m.], I again asked
him to tell me , are the cubicles acceptable as they
stand , or are they defective . He insisted they were
defective . I demanded that he show me where and
how they are defective . He would not , or could not
do it . I said . . . Roland , is there any reason that
you know of why these cubicles should not be ac-
cepted right now, and forwarded to paint . He said
no and put his approval stamp on the tickets and
dated them. I proceeded to take Mr. Langley into
my office and talked to him for a few minutes, and
then I terminated him...
A. Mr. Langley told me that there really was no
defect.
A. Mr. Langley said there were areas of it that
could look better . It met the specifications. It met
the drawings , but there were areas that he wanted
to look better.
Yet, there is nothing about Langley's changing his po-
sition in Ewer's March 1 memo (R. Exh . 8), written
within 30 minutes after the discharge (Tr. 401), evidently
to justify the discharge . The memo reads:
I fired Mr . Langley at 2:45 pm this date for wit-
tingly and knowingly slowing production. In the
course of investigating why it took twelve (12) days
(2/19-3/1) to inspect 3 cubicles , Roland told me
that there were some areas he thought could be
better than they were.
I explained that the equipment only needs to be
good enough , i.e. I don't want defective equipment
being passed by QC, but it doesn 't need to be the
very best in town . I asked him if the equipment was
defective or if he merely wanted it to be better than
it was . He said the equipment was not defective, but
he wanted it to look better.
I explained to him that I need people who are
going to work with me to get the equipment passed
as quickly as possible-there is not to be defective
work passed , but if the equipment meets its require-
ments it must be passed immediately-we have 200
good people here whose jobs need all our concerted
effort to protect-and we'd love to give raises [an
apparent reference to the Union 's organizing cam-
paign], but nonsense like this just saps our working
capital and hurts everyone.
865
Ewer did not deny Langley's testimony that he told
Ewer, "I inspect them the way my supervisor tells me to
inspect them" (Tr. 206). Although Ewer could not re-
member any complaints about the quality of Langley's
work (Tr. 420-421), although there was no dispute that
Langley was following QA Manager Fassy's instructions,
and although Langley had never been warned or in-
structed to inspect the cubicles any differently , Ewer ad-
mitted that doing anything other than firing Langley did
not cross his mind.
Apparently realizing that discharging an employee for
following his supervisor 's instructions was tenuous
grounds for discharging a union supporter-particularly
on the first day of the mass discharge of union support-
ers-Ewer changed the emphasis when explaining his
justification for the discharge at the trial . He testified
(Tr. 413):
In my view sir, the important thing was that it had
taken 12 days for the inspection of the cubicle to be
completed, which meant he was not doing his job.
Everything else just didn 't seem to be all that mate-
rial.
The evidence is clear, however, that this purported
basis for the discharge is just as tenuous.
When asked how long it took the rework to be done
after the first rejection of the cubicle bearing the double-
stamped inspection tag (R. Exh. 2) he admitted: "I don't
have the answer to that" (Tr. 415). Therefore he admit-
tedly had no basis for blaming Langley for any part of
the 5-day delay from February 19 to February 24.
Furthermore, Ewer had no basis for blaming Langley
for the delay from February 24 to March 1. He reluc-
tantly admitted, "I would have no way of knowing"
whether Langley properly took the corrective action
notice (rejection report) to "the leadman in the offending
department [the welding department] for immediate cor-
rective action" after Langley rejected the cubicle on
February 24 (Tr. 425-426). Ewer therefore had no basis
for believing that Langley, rather than the rework per-
sonnel, was responsible for the delay.
Besides the above discredited claims, Ewer gave other
testimony that I discredit as fabrications . As examples, I
discredit (a) his claim that he did not mention Langley's
and Hudson 's union affiliation after QA Manager Fassy
gave evaluations of them on February 26 (Tr. 394), (b)
his claim that he asked Langley on March 1 if Langley
took the corrective action notice on the cubicle with the
double-stamped tag to the welding leadman, and (c) his
claim "That's correct," Langley "just sat there, with his
mouth open, and didn't say a word" (Tr. 426).
6. Concluding findings
After weighing all the evidence , I find that Vice Presi-
dent Ewer was seeking a pretext for discharging union-
supporter Langley on March 1, the first day of the mass
discharge of union supporters.
Even if Ewer did believed that Langley, following QA
Manager Fassy's instructions, was too strict in his inspec-
tions of the cubicles, I find that absent a discriminatory
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
motivation , Ewer would not have summarily discharged
him without any warning.
Concerning the purported delay in making the inspec-
tions, I find that this was clearly a pretext for discharg-
ing Langley.
Particularly in view of the evidence that the Company
had been seeking some justification for discharging
Langley because of his union activity, I find that the
General Counsel has made a prima facie showing suffi-
cient to support the inference that Langley's protected
concerted activity was a motivating factor in the Compa-
ny's decision to discharge him. I also find that the Com-
pany has failed to carry its burden to demonstrate that it
would have discharged Langley in the absence of the
protected conduct. Wright Line, 251 NLRB 1083, 1089
(1980).
I therefore find that the Company discriminatorily dis-
charged Roland Langley in violation of Section 8(a)(3)
and (1) of the Act.
B. Discharge of Leon Fassy
1. Turnaround in quality control
At its Sugarland , Texas facility , the Company manu-
factures switchboards , control boards , and other types of
switch gear for military and commercial use.
Fassy was employed as the manager of the quality as-
surance department in August 1984 (Tr. 72). Since that
time, because of cuts in the staff , he had assumed three
other responsibilities : that of quality control supervisor,
quality engineer , and military field service technician. In
the field service role , he was spending much of his time
outside the city, monitoring new product testing at test
facilities, going to customers ' locations to modify the
Company's switch gear to the customers ' specifications,
and taking care of discrepancies in the field . (Tr. 73-74.)
Despite these added responsibilities , he had turned
around the Company 's quality control to President
Voyles' satisfaction.
It is undisputed that Fassy 's predecessor had "many
run-ins with the Government and . . . had been written
up many times by the Government inspector that came
out to our area ." Fassy strove to eliminate all the prob-
lems between the Company and the Government . Except
for one or two complaints shortly after he took the job,
all the complaints ceased . (Tr. 179.)
An example of Fassy's reorganizing the QA depart-
ment is the three-page receiving inspection procedure (R.
Exh. 7), which Fussy prepared in February 1986. It ap-
plies to the inspection of all items received , including
raw material , parts, subcontracted items, and outside
processing-both for military and commercial use (Tr.
388, 391).
Fassy's testimony is also undisputed that he created a
good "quality relationship " with the Company 's largest
customers , Ingalls Shipbuilding and Bath Iron Works
(Tr. 74-75). Sometime in 1987, when Ingalls held a pre-
vious quality audit at the plant, the Company achieved
"the highest quality rating possible" (Tr. 140). At that
time, Fassy had about eight persons assigned to quality
assurance (Tr. 140; R. Exh. 5).
President Voyles expressed his appreciation for the
turnaround in quality control in a meeting of company
officials about February 22. In this meeting Fassy pre-
sented to the officials the corrective action to be report-
ed to Ingalls Shipbuilding in answering a February 18
source inspection report (discussed below). Referring to
Fassy's management of the department , Voyles com-
mended Fassy "for turning that situation around with the
Government" and stated "he liked the way" Fassy
"came in and took charge and established the QC organi-
zation ." (Tr. 97-98, 179-180.)
2. Cash-flow problem ; cuts in staff
About June 1987, because of a serious cash-flow prob-
lem, the Company cut its quality control staff from seven
to five persons, over the protests of QA Manager Fassy.
It is undisputed that Fassy informed his superior, Vice
President Ronnie Cothron , that "in no way could a qual-
ity control department function correctly" with that
number of employees (Tr. 115, 132-133, 138-139, 177-
178; R. Exh. 5.) Fassy still had no QC supervisor for
close supervision of the inspectors . I note that the
number of inspectors varied from time to time (R. Exh.
5), but the evidence does not reveal the correlating
records showing volume of production.
Fassy continued to complain to Cothron about the
manpower shortage in his department and also took the
problem to President Voyles. There remained, however,
the serious cash -flow problem and "Cuts were taken in
practically all departments." (Tr. 115, 139, 141.) Fassy
was told that the Company was "in bad shape financial-
ly" (Tr. 133). In December the Company eliminated
three holidays (Tr. 257).
On the first of January President Voyles assumed per-
sonal responsibility over the QA department, replacing
Vice President Cothron , who was taking over produc-
tion (Tr. 184). Fassy's testimony is undisputed that he
told Voyles that "with my manpower level . . . we
could not . . . cover all the areas" of quality control (Tr.
140). Voyles did not criticize Fassy's operation of the de-
partment with the reduced staff (Tr. 178).
On January 5 the Company notified Ingalls Shipbuild-
ing that the "Customer witnessed final inspection of
CG65 MDS is tentatively scheduled for January 25th
and 26th" at the Company's facility and asked if Ingalls
would waive this inspection or send a representative (R.
Exh. 6). Those tentative dates could not be met.
Not only was there a shortage of QC inspectors, but
there was a high turnover of employees in the QA de-
partment and the final inspectors were inexperienced.
The most senior inspector was Welding Inspector Lang-
ley, who was hired July 30, 1987 (Tr. 132; G.C. Exh.
16). The QC supervisor position remained vacant, and
Fassy's other assignments required him to be away from
the plant "a majority of the time during the inspection
and testing of this unit" (Tr. 75, 138). The result was that
the QA department was not ready for the Ingalls repre-
sentative on February 18, over 3 weeks after the tenta-
tive dates set January 5 (Tr. 182-183, 372).
Meanwhile, about February 8, Fassy spoke to Presi-
dent Voyles, "trying to get permission to hire some more
THORE, INC.
people, specifically a supervisor" because of Fassy's up-
coming schedule to be out of the office . Despite the
hiring freeze caused by the cash -flow problem (Tr. 56),
Voyles authorized Fassy to hire a QC supervisor and
possibly another inspector. (Tr. 82-84.) After this con-
versation , Fassy immediately went to the personnel
office and reviewed the job applications on hand. Find-
ing no qualified applicant , he had Human Resources Di-
rector Boos place a newspaper ad. He was unable to find
a qualified person before his March 7 discharge. (Tr. 84-
85, 145-146.)
3. Source inspection report
On February 18 an Ingalls Shipbuilding representative
submitted the Company a highly critical source inspec-
tion report on shipset number CG65.
The report (G.C. Exh. 12) concluded with (a) a state-
ment that the "hardware is not ready for an Ingalls final
inspection"; (b) requirements that all discrepancies be
corrected, positive steps of corrective action be taken to
prevent recurrence , and the proposed corrective actions
be documented and forwarded to Ingalls as soon as pos-
sible for review and approval ; and (c) a statement that
"Failure to comply with the above will jeopardize [the
Company's] current quality rating."
In Vice President Ewer's view , the problems were
(Tr. 372):
The equipment was rejected because it was not
ready for inspection , and in fact, the test reports
were not even completed.
The switchboards were dirty, full of debris .. .
testing was incomplete , modifications to the equip-
ment had not been incorporated in the equipment,
nor had the test procedure been updated to match
the modifications. There was faulty equipment in it.
That's a pretty fair summary.
Concerning the incomplete testing, QA Manager Fassy
explained : "I had inexperienced people . . . I had
records signed by my QC people that releases this par-
ticular thing for shipment " (Tr. 161).
About February 22 Fussy met with company officials
and presented the corrective action to be reported to In-
galls. Both President Voyles and Vice President Ewer
approved this answer to the inspection report. It was in
this meeting that Voyles, despite the critical report by
the Ingalls representative , expressed his appreciation for
Fassy having previously turned around the situation with
the Government and establishing the QC organization.
(Tr. 97-98, 179-180.)
Ewer's comment at the time was that somebody at In-
galls had "sent somebody over to do a hatchet job on
our quality control" (Tr. 97-98). Fassy's testimony is un-
disputed that "the previous inspector from Ingalls real-
ized that during our testing and moving around [the
cabinets] would get dirty and he preferred " them to be
cleaned up after the inspection , before they were shipped
(Tr. 182-183).
Following this meeting Fassy met with the QC inspec-
tors, went over the proper procedure to be followed in
867
making final inspections , and gave each of the inspectors
a copy of the quality assurance procedures outlining in-
spections in each area that should be performed and how
to perform them (Tr. 162). The testing and cleanup work
was completed in Fassy's absence the first week in
March (Tr. 403).
4. Evaluations ; summary discharge
On February 26 (2 working days before the mass dis-
charge of union supporters began ) Vice President Ewer
became responsible for the quality assurance department
(Tr. 371). That afternoon he told Fassy he had just been
put in charge of QA and asked Fassy to give an evalua-
tion of his inspectors (Tr. 101-102). Although he knew
the Company desired him to lower his evaluations of
Langley and Hudson to justify their discharge , as found
above, he responded that both were good employees.
On Tuesday, March 1, as also found above, Ewer dis-
criminatorily discharged Langley in Fassy's absence
from the plant. On Friday , while Fassy was still absent
from the plant, Ewer wrote him a letter, announcing his
discharge and acknowledging that employee evaluations
was a primary reason (G.C. Exh. 14):
I've tried unsuccessfully to contact you by tele-
phone; therefore , I am sending this letter.
Events transpiring over the past week, including
the need for me to fire Roland Langley, have con-
vinced me that your calibration of the Quality staff
and mine are vastly different, and that they have not
been properly managed . Accordingly , it is with the
best interest of the Company that your employment
be terminated effective 4 March 1988 . [Emphasis
added.]
The letter concluded with an offer of an opportunity to
resign and a request to return any company property.
Ewer testified that he drafted and signed the letter on
March 4 and "asked Ms. Boos to transmit it to Mr.
Fassy" (Tr. 405-406). Although found in Fassy's person-
nel file (Tr. 110), it was never mailed or delivered to
Fassy (Tr. 107).
When Fassy returned to the plant Monday, March 7,
Ewer summarily discharged him-with no advance
warning, despite his 4 years of service . Ewer called
Fassy to his office about 9 a.m. and , as Fassy credibly
testified , first said that he had to let Langley go last
week and that Langley "had acknowledged to him that
he was trying to slow down work [an untrue state-
ment]." After Fassy protested , stating his disbelief (Tr.
106-107),
Mr. Ewer told me that he had done an evaluation
of my people while I was gone, that my evaluation
that I 'd given him the previous week . . . and his
evaluation did not coincide. He asked me for my
resignation , I told him I would not give him my
resignation , he would either have to lay me off or
fire me. [Emphasis added.]
Q. What happened?
A. He fired me.
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fassy credibly testified that Ewer gave only the
reason "Our evaluations disagreed" for the discharge
(Tr. 112). He was positive that "No, [Ewer] did not" tell
him that his employees "have not been properly man-
aged" (Tr. 151). By his demeanor on the stand , Fassy ap-
peared to be an honest witness, trying to give an accu-
rate account of what happened.
Fassy told Ewer he wanted a copy of why he was
being fired (Tr. 111). About 15 minutes (Tr. 113) later
Human Resources Director Boos gave him a termination
form , signed by Ewer (G.C. Exh. 15), stating that he was
discharged for "Inadequate supervision and evaluation of
employees." [Emphasis added.]
5. The Company 's defenses
a. Employee evaluations
The Company offered no evidence that it was dis-
pleased with QA Manager Fassy's evaluations of any of
the QC employees besides the two discharged union sup-
porters, Langley and Hudson.
Thus, when Vice President admitted that Fassy's "cali-
bration" of the QA staff (as stated in his undelivered
March 4 letter to Fassy) and "evaluation of employees"
(as stated on the March 7 termination form) were a
reason for his discharging Fassy, he was admitting his
displeasure with Fassy for giving union supporters Lang-
ley and Hudson good evaluations.
b. Motivation
The Company did not offer any defense to the cred-
ited evidence indicating that company officials (President
Voyles twice and Vice Cothron once) had discussed dis-
charging Langley because of his union support and were
seeking some justification for discharging both Langley
and Hudson.
Neither did it offer any defense to Fassy's credited tes-
timony that he told President Voyles that he would not
get rid of Langley unless ordered to and "I just didn't
feel like I should have to let [Langley and Hudson] go
because of their union affiliation."
Thus the Company offered no defense to credited evi-
dence that indicates that it was motivated by a desire to
discharge Langley and Hudson because of their union
support and that Fassy was declining to cooperate.
c. Memo to file
At the trial the Company introduced a memo that
Vice President Ewer wrote to Fassy's personnel file on
March 7, the date he discharged Fassy. I find that the
memo (R. Exh. 9), which Ewer evidently wrote to justi-
fy the discharge , clearly reveals that Ewer was seeking
to conceal his real motivation.
Under item 1 , regarding delays in inspection, Ewer
wrote:
Investigation into item 1 revealed that Roland
Langley was improperly rejecting cubicles for cos-
metic reasons and admitted that the cubicles were
not defective. The presence of Mr. Fassy's initials
on the inspection record releasing the cubicles to
production reflected his knowledge of this situation.
Fassy was also aware that Langley overrode
Fassy's release and Fassy took no corrective action.
The first sentence is a discredited version of the inci-
dent . The second and third sentences are clearly after-
thoughts, written 3 days after Ewer had already decided
to discharge Fassy , without having asked him what hap-
pened.
If Ewer had been interested in investigating what did
occur-before deciding to discharge Fassy-Ewer would
have learned from Fassy that he had initialed his approv-
al on the inspection tag in error and there was no reason
to take corrective action against Langley.
If Ewer believed that Fassy 's instructions for inspect-
ing the cubicles were too strict , Ewer gave no reason for
not informing him, rather than writing him a discharge
letter during his absence from the plant.
I note that regarding the March 7 conversation with
Fassy, Ewer claimed at one point (Tr. 407) that as "I
summarized all these things , and reflected back on his as-
sessment of his people, I was convinced that Mr. Fassy
was not capable of managing that department " and "I re-
quested his resignation"-pretending that he then made
his decision . To the contrary, his discharge letter to
Fassy (G.C. Exh. 14), which Ewer testified he drafted
and signed on March 4 (Tr. 405-406), states that "it is
with the best interest of the Company that your employ-
ment be terminated effective 4 March 1988."
Under item 2 , regarding defective or wrong parts,
Ewer wrote:
Item 2 research revealed that Fassy had stopped
performing Receiving Inspection on most purchased
parts and had also stopped most in-process inspec-
tion, exposing the company to delays and premium
costs at the most expensive and inopportune time of
the production cycle, final assembly and test.
Again, Ewer decided to discharge Fassy 3 days earli-
er, before talking to Fassy about why he discontinued
some receiving inspection (for commercial use, not for
military products, Tr. 386-387) and some in-process in-
spection (Tr. 386). Fassy, as found above, had written
the receiving inspection procedure (R. Exh . 7), and he
must have had a reason for deviating from his own writ-
ten instructions.
I infer that Ewer did not ask Fassy why, before decid-
ing to discharge Fassy, because he already knew the an-
swers : ( 1) Fassy did not have enough inspectors to get
the important Ingalls military work completed by the
tentative source inspection date . (2) Because of the high
turnover, the QC inspectors were inexperienced and still
learning their jobs, without the daily guidance of a QC
supervisor . (3) The new receiving inspector (working in
the department since the previous November) was also
doing in-process , silver plate, and shipping inspections, as
well as learning to test circuit breakers and other equip-
ment in Fassy 's cross-training program , instead of work-
ing full time doing receiving inspection (Tr. 137, 280,
444).
Under item 3, regarding the Ingalls February 18
source inspection report, Ewer wrote:
THORE, INC. 869
The item 3 rejection was because Mr. Fassy failed
to properly task and manage his people.
Ewer was fully aware of the reasons for this critical
report , Fassy's corrective actions, and President Voyles'
commending Fassy-at the meeting in which this report
was discussed-for Fassy 's management of the QA de-
partment . Contrary to Ewer's claims , Fassy had not been
blamed.
The memo concluded:
All these facts were presented to Mr . Fassy. He
offered no rebuttals . I requested his resignation. He
insisted that he wanted to be fired . I obliged. [Em-
phasis added.]
To the contrary , as found above, Fassy credibly testi-
fied that Ewer gave only the reason "Our evaluations
disagreed" for discharging him. Even if Ewer had men-
tioned these purported reasons for the discharge, Ewer
had already written and signed the discharge letter to
Fassy 3 days before.
Moreover, at the trial , Ewer contradicted his own
memo . When testifying about his March 7 discharge of
Fassy, he claimed that Fassy did give rebuttals for stop-
ping the receiving inspection and in -process inspections.
He claimed that Fassy "told me he stopped both of them
because he didn't have enough people , and the people he
had were not properly qualified ." (Tr. 404.)
I discredit , as fabrications , both the statements in the
memo, that "All these facts were presented" to Fassy on
March 7 but "He offered no rebuttals," and the contra-
dictory claim at the trial , that Fassy did give rebuttals to
two of the purported reasons for the discharge . As noted
above, Ewer appeared on the stand to be willing to fab-
ricate any testimony that might help the Company's
cause.
I find that the opening sentence of the memo (refer-
ring to Fassy's February 26 evaluations) revealed the
real reason for the discharge:
On February 26, 1988, shortly after assuming re-
sponsibility for military QA, I requested Lee Fassy
give me his assessment of the personnel reporting to
him. The attached assessments reflect Fassy's views
towards his people.
Ewer's attached notes (R. Exh. 9) show that Fassy
gave Langley and Hudson favorable evaluations. After
Ewer received these evaluations, as found above, Ewer
mentioned that Langley and Hudson "were union affili-
ated ." Fassy responded that is true "but I believe they're
being over persecuted because of that. The people are
doing their job, I don 't know what more we can ask of
them , I don't want to let them go."
Regarding the February 22 discussion of the Ingalls re-
jection and the final inspection problems, Ewer claimed
that when Fassy stated , "I don 't have enough people,"
Voyles stated "he believed Fassy had enough people." I
discredit this claim as another of his numerous fabrica-
tions . Ewer then admitted that there was a vacancy in
the position of final acceptance test inspector. (Tr. 378-
379.)
Ewer also claimed (1) that he did not recall any dis-
cussion at that meeting about hiring a supervisor , (2) that
he had determined, before discharging Langley and
Fassy, that " it was not essential to have a [QC] supervi-
sor in place in that department ," and (3) that "during
that time, the Quality Assurance manager was not away
from the facility that much" (Tr. 435). I discredit these
claims . Despite the hiring freeze caused by the cash-flow
problem (Tr. 56), President Voyles had authorized the
hiring of a QC supervisor (Tr. 84). Furthermore, Ewer
admitted at the trial that both a QA manager and a QC
supervisor were then employed (Tr. 368).
Ewer testified that before discharging Fassy, he went
to the final acceptance test area and found that all the
equipment was ready for the Ingalls representative to re-
inspect except the nameplates being checked. He claimed
"the inspector just seemed to be taking an inordinate
amount of time, "that he quizzed the inspectors, and that
"they" told him "the testing they were doing would take
another four days. . . . I told them I wanted it done in
two hours, not four days. It was done in two hours."
(Tr. 403.) He cited this as further proof that "Fassy was
not capable of managing that department" (Tr. 407). Be-
cause of the numerous incidents of fabrication in his testi-
mony, I have found him to be a most untrustworthy wit-
ness . I place little credence in this claim . But even if the
claim were true, I would find under the circumstances
that it is merely a pretext for the discharge.
Ewer also claimed that around the beginning of
March, before he discharged Fassy, he asked receiving
inspector Bertha Hinajosa "is it possible for you to do re-
ceiving inspection on all parts , military and commercial,
as they come in. She said yes. I said , excellent, I want
you to begin today." (Tr. 402.)
I note, however, that Ewer did not testify whether he
stopped all or part of Hinajosa 's cross-training program
(in which she was learning a number of other duties) to
provide her more time for receiving inspection. I also
note that there is no mention of this resumption of com-
mercial receiving inspection in his March 7 memo to
Fassy's personnel file (R. Exh. 9) and that Hinajosa re-
called that she resumed doing commercial inspecting, not
the first week in March but "Since the end of March"
(Tr. 281).
I reject this defense as well, finding that it is merely
another pretext for the discharge.
d. Other defenses
Vice President Ewer, the Company 's principal witness,
ignored President Voyles' commendation to Fassy at the
February 22 meeting, the cash-flow problem, and the
high turnover and denied a staff shortage . He cast the
blame on QA Manager Fassy for the problems in the
quality assurance department.
6. Contentions and concluding findings
The General Counsel contends that the Company dis-
charged QA Manager Fassy "because he refused to
evaluate employees in a fashion [that] would allow [the
Company] to discharge known union adherents." She
cites Parker-Robb Chevrolet, 262 NLRB 402, 403-404
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1982), in which the Board reaffirmed the rule that not-
withstanding the general exclusion of supervisors from
coverage under the Act, the discharge of a supervisor
for refusing to commit unfair labor practices violates
Section 8(a)(1).
The Company , ignoring President Voyles' commenda-
tion to Fassy for the turnaround in quality control at the
plant , contends in its brief (at 9-10) that "It was apparent
to Mr . Ewer that Mr. Fassy was simply not capable of
handling or managing his employees or his department;
and accordingly Mr. Ewer terminated Mr. Fassy's em-
ployment in a meeting held March 7, 1988." I find that
this contention , based primarily on Ewer's discredited
testimony , is unfounded.
The Company cites the wording of the complaint: that
it discharged supervisor Fassy because he "refused [the
Company's] demand that he lower his performance eval-
uations of known union adherents, employees Roland
Langley and Otis Hudson." It contends that this allega-
tion fails (a) because "no real performance evaluation
was ever made," just oral assessments , and (b) no one
asked Fassy to lower the evaluations.
I reject both contentions . The assessments were infor-
mal evaluations. As found , it was obvious to Fassy that
the Company desired him to lower his evaluations of
Langley and Hudson to justify their discharge. I find
that under these circumstances , Ewer made an implicit
request that Fassy lower his evaluations of these union
supporters.
The Company argues in its brief (at 12) that in the
complaint the General Counsel
has attempted to fall within one of the Parker-Robb
exceptions . . . by alleging that [the Company] dis-
charged Mr . Fassy because he refused to engage in
an unfair labor practice ; in particular that Mr. Fassy
refused to lower performance evaluations of Mr.
Langley and Mr. Hudson , alleged union adherents.
... Mr. Fassy was never asked to fire either of
the two employees or lower any performance eval-
uations ; it is difficult to understand how Mr. Fassy
could be fired for refusing to do something he was
not asked to do.
The Company then contends that "These facts are not
unlike those in" Pontiac Osteopathic Hospital , 284 NLRB
442 (1987). It argues that there , a supervisor "told the di-
rector of the hospital that she did not support the em-
ployer's decision to discharge the employee" and that at
no time "did the director ask the supervisor to carry out
the discharge or in any way participate in the discipline
[emphasis added]." The Company cites the following
Board ruling:
When an employer asks a supervisor to commit an
unfair labor practice, the supervisor is forced to
choose between violating the law or disobeying the
employer's request-a choice which could lead to
discipline or discharge. Consequently , in such situa-
tions an employer is able to pressure a supervisor
into violating the law on its behalf. On the other
hand , when a supervisor, acting on his or her own
initiative, chooses to express disapproval of a man-
agement policy , the supervisor is not coerced at all,
i.e., he or she has not been forced to choose be-
tween violating the law or risking the consequences
of the employer's wrath. Admittedly, the discharge
in either situation may have a secondary effect on
the employees ' exercise of their Section 7 rights, but
there is no need to protect the supervisor from co-
ercion when the supervisor is acting on his or her
own initiative.
Here , the Company requested the supervisor to lower
his evaluations of two employees to provide it a pretext
for discriminatorily discharging them . It forced the su-
pervisor to choose between participating in its unfair
labor practices and risking discharge . He took the risk
and was discharged . I find it necessary to protect the su-
pervisor from this coercion to avoid an adverse effect on
employees' exercise of their Section 7 rights.
After weighing all the evidence and considering the
arguments made in the briefs, I find that the General
Counsel has made a prima facie showing sufficient to
support the inference that Fassy's refusal to participate in
the Company 's unfair labor practices was a motivating
factor in the Company's decision to discharge Fassy. I
also find that the Company has failed to carry its burden
to demonstrate that it would have discharged Fassy in
the absence of this refusal to participate in the unfair
labor practices . Wright Line , 251 NLRB 1083, 1089
(1980).
I therefore find that the Company unlawfully dis-
charged Leon Fassy in violation of Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Ronald Langley
March 1 , 1988 because of his support of the Union, the
Company has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3) and (1)
and Section 2(6) and (7) of the Act.
2. By discharging Leon Fassy Jr. March 7, 1988 for
refusing to participate in the Company's unfair labor
practices by lowering his evaluations of union supporters
Langley and Otis Hudson to provide it a pretext for dis-
criminatorily discharging them , the Company violated
Section 8 (a)(1).
3. By coercively interrogating an employee , the Com-
pany further violated Section 8(a)(1).
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices , I find that they must be or-
dered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
The Respondents having unlawfully discharged an em-
ployee and a supervisor , the Respondents must offer
them reinstatement and make them whole for any loss of
earnings and other benefits , computed on a quarterly
basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings , as prescribed
THORE, INC.
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter-
est as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondents , Thore, Inc.; Integrated Power Sys-
tems Corporation ; and International Switchboard Corpo-
ration , Sugarland , Texas, their officers , agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting International Brotherhood
of Electrical Workers, Local Union No. 716, AFL-CIO
or any other union.
(b) Discharging any supervisor for refusing to partici-
pate in their unfair labor practices by lowering evalua-
tions of employees supporting the union to provide a
pretext for discriminatorily discharging the employees.
(c) Coercively interrogating any employee about union
support or union activities.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Leon Fassy Jr. and Ronald Langley immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
871
or privileges previously enjoyed , and make them whole
for any loss of earnings and other benefits suffered as a
result of their discharge , in the manner set forth in the
remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the supervisor and employee in
writing that this has been done and that the discharges
will not be used against them in any way.
(c) Preserve ' and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Sugarland , Texas copies of the
attached notice marked "Appendix."s Copies of the
notice, on forms provided by the Regional Director• for
Region 23, after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced , or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "