T.R.W. Bearings Division

National Labor Relations Board - Board Decisions

Jul 31, 1981

257 N.L.R.B. 442 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T.R.W. Bearings Division, a Division of T.R.W.,
Inc. and Laland D. Anderson. Case 10-CA-
15080
July 31, 1981
DECISION AND ORDER
On August 8, 1980, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief answering Respondent's ex-
ceptions.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, 2 as
modified herein.3
The Administrative Law Judge found, inter alia,
that rule 9 in Respondent's March 1, 1979, "Em-
ployee Guide," prohibiting employees from engag-
ing in solicitation or distribution of unauthorized
literature during "working hours," is presumptively
invalid as being unlawfully broad. In reaching this
conclusion, the Administrative Law Judge relied
on the general proposition, announced in Essex In-
ternational, Inc.,4 that rules, such as rule 9 in the in-
stant case, which prohibit solicitation or distribu-
tion during "working hours" are presumptively in-
valid as they are susceptible to the interpretation
that such activity is prohibited during all business
hours, including employees' nonworking mealtimes
and breaktimes.
Respondent contended before the Administrative
Law Judge, and reasserts in support of its excep-
tions to the Administrative Law Judge's finding
that rule 9 was unlawful, that it rebutted the pre-
sumptive invalidity of rule 9 by showing that, in
accordance with the requirements set out in Essex
International, the prohibition against solicitation
and distribution during "working hours" was com-
municated to the employees in such a way as to
convey an intent clearly to permit such activity
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. I is the Board's established policy not to
overrule a administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
sinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Member Jenkins would provide interest on the backpay award in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
:' In par. 2(a) of his recommended Order, the Administrative Las
Judge inadvertently omitted a portion of the reinstatement language tra-
ditionally used by the Board. Accordinlgly, ,e shall modify the recom-
mended Order to correct this error.
'211 NLRB 749 (1974) (then Member Fanning and Member Jenkins
dissenting).
257 NLRB No. 47
during mealtime or breaktime or other periods
when employees are not actively at work.5
In this regard, Respondent notes the Board's
companion holding in Essex International, that rules
prohibiting solicitation or distribution during
"working time" or "work time" are presumptively
valid, as connoting only the period of time that is
spent in the performance of actual job duties, not
including employees' mealtimes or breaktimes
when they are free to engage in solicitation or dis-
tribution. Here, Respondent points out that since at
least August 1, 1978, some 7 months prior to its ini-
tial issuance of rule 9 in March 1979, and continu-
ing thereafter at least through the time of the hear-
ing herein in April 1980, it has distributed to its
employees an employee handbook which, inter alia,
prohibits employees from engaging in solicitation
for such things as "memberships or other outside
activities during working time" (emphasis supplied).
Moreover, urges Respondent, it reiterated this
policy as set out in the employee handbook in an
October 1979 posted notice to employees. Thus,
Respondent contends that its August 1978 prohibi-
tion against solicitation during "working time," and
its October 1979 reiteration of that "working time"
prohibition, made it clear to the employees that its
March 1979 "working hours" prohibition did not
preclude them from engaging in solicitation and
distribution of literature when not actually engaged
in work.
The Administrative Law Judge, for the reasons
set out in section III,A, of his Decision, failed to
find that the presumptive invalidity of the "work-
ing hours" prohibition in rule 9 had been rebutted,
and he therefore concluded that rule 9 was viola-
tive of Section 8(a)(1) of the Act.
We agree with and affirm the Administrative
Law Judge's conclusion that Respondent's rule 9
violates Section 8(a)(1) of the Act. We reject, as
did the Administrative Law Judge, Respondent's
contention that the presumptive invalidity of rule
9's prohibition against solicitation and distribution
during "working hours" was rebutted by Respond-
ent's prior and subsequent publication of a pre-
sumptively valid rule prohibiting solicitation during
"working time." However, unlike the Administra-
tive Law Judge, our rejection of Respondent's
claim of rebuttal is based not on the particular cir-
cumstances outlined by the Administrative Law
Judge, but instead on our rejection of the principle,
espoused in Essex International, that prohibitions
against solicitation and distribution during "work-
ing time" or "work time" are presumptively valid.
" Id. at 750.
442
T.R.W. BEARINGS DIVISION
As noted above, the majority in Essex Interna-
tional held that rules which prohibit solicitation
and distribution during "working time" are pre-
sumptively valid, but that rules prohibiting solicita-
tion and distribution during "working hours" are
presumptively invalid. The latter presumption,
however, could be overcome in any particular case
by a presentation of extrinsic evidence that such
"working hours" rules were communicated or ap-
plied in such a way as to convey an intent clearly
to permit solicitation during breaktime or other pe-
riods when employees are not actually at work.
These conclusions concerning the distinctions be-
tween "working time" and "working hours" were
predicated entirely upon what the Essex Interna-
tional majority saw as the "clear distinction" to be
drawn between the terms; that is, "working hours"
connoted the period of time from the beginning to
the end of a workshift, including breaktime and
mealtime, while "working time," on the other
hand, connoted only the period of time that is
spent in the performance of actual job duties,
thereby excluding breaktime and mealtime from its
scope.
We, however, see no inherent meaningful dis-
tinction between the terms "working hours" and
"working time" when used in no-solicitation rules.
Both terms are, without more, ambiguous, and the
risk of such ambiguity must be borne by the pro-
mulgator of the rule. Either term is reasonably sus-
ceptible to an interpretation by employees that they
are prohibited from engaging in protected activity
during periods of the workday when they are
properly not engaged in performing their work
tasks (e.g., meal and break periods). As such, either
term tends unlawfully to interfere with and restrict
employees in the exercise of their Section 7 organi-
zational rights.
Inasmuch as employees may rightfully engage in
organizational activities during breaktime and meal-
time, rules which restrain, or which, because of
their ambiguity, tend to restrain employees from
engaging in such activity constitute unlawful re-
strictions against and interference with the exercise
by employees of the self-organizational rights guar-
anteed them by Section 7 of the Act.6 As pointed
out in the dissenting opinion in Essex International,
an employer who does not intend that its employ-
ees misinterpret rules against solicitation during
"working time" or "working hours" in the unlaw-
fully broad sense described above need only incor-
porate in the rule itself a clear statement that the
restriction on organizational activity contained in
' See Avon Convalescent Center Inc., 200 NLRB 702, 704-705 (1972),
enfd. 490 F.2d 1384 (6th Cir 1974); see also the dissenting opinion of
then Member Fanning and Member Jenkins in Essex Internotional. supra.
the rule does not apply during break periods and
mealtimes, or other specified periods during the
workday when employees are properly not en-
gaged in performing their work tasks.
In view of the foregoing, we hold that rules pro-
hibiting employees from engaging in solicitation
during "work time" or "working time," without
further clarification, are, like rules prohibiting such
activity during "working hours," presumptively in-
valid.
We are, of course, aware that Respondent's pro-
hibitions against solicitation during "working time"
were not alleged in the complaint to be unlawful.
Nor has Respondent otherwise been put on notice
that the presumptive lawfulness of those prohibi-
tions was to be challenged or otherwise litigated.
Consequently, we shall not conclude, in this pro-
ceeding, that the prohibitions against solicitation
contained in Respondent's employee handbook and
its October 1979 notice are in violation of Section
8(a)(l) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
T.R.W. Bearings Division, a Division of T.R.W.,
Inc., Flowery Branch, Georgia, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi-
fied:
Substitute the following for paragraph 2(a):
"(a) Offer Laland Anderson immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him
whole for any loss of earnings he may have suf-
fered by reason of his discriminatory discharge in
the manner set forth in the section of the Adminis-
trative Law Judge's Decision entitled 'The
Remedy."'
7 To the extent that Essex International. supra, and subsequent cases re-
lying on it have held that rules prohibiting solicitation or distribution
during "work time" or "working time" are presumptively alid those
cases are hereby overruled.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
case was heard before me at Gainesville. Georgia, on
April 30, 1980, pursuant to charges filed against T.R.W.
44.3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bearings Division, a Division of T.R.W., Inc.,' on Octo-
ber 2, 1979, and a complaint issued on November 13,
1979.2 The complaint alleges the unlawful discharge of
Laland Anderson and threats, interrogation, and unlaw-
ful employee rules.
Upon the entire record and my observation of the de-
meanor of the witnesses, with due consideration of the
parties' briefs, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is an Ohio corporation with an office and
place of business located at Flowery Branch, Georgia,
where it is engaged in the manufacture of roller and ball
bearings. Respondent, during the calendar year preced-
ing the issuance of the complaint, a representative
period, sold and shipped from its Flowery Branch, Geor-
gia, facility finished products valued in excess of $50,000
directly to customers located outside the State of Geor-
gia. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. LABOR ORGANIZATION
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, is a labor
organization with the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Company Rules
An "Employee Guide" setting forth work rules and
the penalties for violations thereof has been in effect at
Respondent's Flowery Branch, Georgia, facility since
March 1, 1979, and is yet distributed to new employees.
The General Counsel contends that the promulgation
and maintenance of two of these rules violated Section
8(a)(1) of the Act. Inasmuch as the promulgation of the
"Employee Guide" occurred more than 6 months prior
to the filing of the charge herein, it may not be found
violative of the Act. The issue is therefore whether the
maintenance and distribution of the two rules in question
is unlawful. They read as follows:
9. Soliciting, politicking or distributing unauthor-
ized literature during working hours or at work sta-
tion without permission.
12. Displaying of unauthorized posters, signs and
other visuals.
The "Guide" in evidence from which these rules were
extracted bears a revision date of October 1, 1979, and
there is no evidence these rules were ever explicitly re-
tracted.
Since at least August 1, 1978, Respondent has also dis-
tributed an employee handbook, being revised at the time
of the hearing, which contains the following statement:
'Respondent's name appears as corrected at the hearing.
2 All dates herein are in 1979 unless otherwise specifically stated.
SOLICITATIONS
No members will be allowed to engage in solici-
tation for such things as subscriptions, memberships
or other outside activities during working time.
Any employee who does so and thereby interferes
with his own work or the work of another employ-
ee during that employee's working time will be sub-
ject to discipline, including discharge.
In addition, there will be no distribution of litera-
ture or other printed matter at any time on compa-
ny property in the working areas of the plant by
any employee nor will there be any distribution of
literature on company property by anyone not em-
ployed by the company.
The only exception to this rule will be solicita-
tion for recognized charities such as United Fund,
in which case special arrangements will be ap-
proved and posted.
In October 1979, Respondent posted the following
pursuant to its established question-and-answer program:
Q. Some are wearing things handed out by the
IAM. I heard you are going to stop this. What
about it?
A. No. Our work rules only preclude wearing
anything that would be a safety factor-see rules of
class A/5 step procedure. 3
Further, our policy generally states that unless
something (1) interferes with his own work or (2)
the work of another employee during the employ-
ees working time he will not be subject to discipline
for these kind of things.
The policy in its entirety says:
No members will be allowed to engage in solici-
tation for such things as subscriptions, memberships
or other outside activities during working time.
Any employee who does so and thereby interferes
with his own work or the work of another employ-
ee during that employee's working time will be sub-
ject to discipline, including discharge.
In addition, there will be no distribution of litera-
ture or other printed matter at any time on compa-
ny property in the working areas of the plant by
any employee nor will there be any distribution of
literature on company property by anyone not em-
ployed by the company.
The only exception to this rule will be solicita-
tion for recognized charities such as United Fund,
in which case special arrangements will be ap-
proved and posted.
I am persuaded that the issuance of the March 1979
"Employee Guide" reasonably tended to convey to Re-
spondent's employees that the rules therein were the
ones then in effect and were to be followed. The intro-
duction to this "Guide" states, in pertinent part:
Rules 9 and 12 above appear in the "Employee Guide" under the
general heading "Class A/5 Step Procedure."
444
T.R.W. BEARINGS DIVISION
This pamphlet has been prepared to provide all
employees a set of Standard Work Rules which
identify (I) Work Responsibilities, (2) Standards of
Conduct, and (3) Appropriate Disciplinary Proce-
dures for Infractions of Either. They are asceptable
to amendment as greater wisdom or additional
needs may arise.
Its purpose is to remove inconsistencies and in-
equities in our disciplinary structure. Inconsistencies
and inequities in the disciplinary structure create
counterproductive responses and reactions within
an organization and cannot be tolerated.
These standards were developed through
common usage and common sense and must be ob-
served out of consideration for the rights of others
and efficiency of a business operation.
* * * * *
Although most employees observe these stand-
ards as a matter of course, they are listed here to
clearly state what is expected of Marlin-Rockwell
Gainesville employees and to define and protect the
rights of all who work here.
Probationary employees (individuals at pay Level
I) are subject to discharge whenever it is deter-
mined that their performance and/or attitude is not
satisfactory.
In my view, this introduction put employees on notice
that the rules in the "Employee Guide" were in full
force and effect and superseded previously existing rules,
including those in the employee handbook. The republi-
cation of the handbook policy on solicitation, via Re-
spondent's question-and-answer format, did not on its
face retract the "Guide" rules and the evidence shows
that Respondent still purports to follow the disciplinary
rules and procedures in the "Guide." Respondent's Octo-
ber posting of the question and answer set forth above
may have served to foster uncertainty among the em-
ployees regarding the viability of the rules laid out to
them in the "Employee Guide," but it was insufficient to
dissipate employee reliance on these rules which contin-
ued to be distributed. I do not believe that employees are
required to resolve ambiguities created by their employ-
er, nor do I believe that it can reasonably be concluded
that Respondent's posting, in response to an inquiry on
wearing union insignia, communicated to employees that
they could safely disregard the solicitation and distribu-
tion provisions of the "Employee Guide" whose intro-
duction positively directs employees to follow those pro-
visions or suffer discipline for infractions thereof. What-
ever Respondent's subjective intent was in republishing
the handbook provisions on "Solicitations," it cannot be
reasonably concluded on the evidence before me that
this republication fairly notified employees that "Em-
ployee Guide" rules 9 and 12 above had been modified
or rescinded. Accordingly, I conclude these rules retain
their vitality to the present.
With respect to rule 9, it is well established that a rule
prohibiting employees from soliciting or distributing
during "working hours" is prima facie too broad.4 The
mere existence of so broad a rule tends to restrain and
interfere with employee rights protected by the Act,
without need of any showing that the rule was ever en-
forced.5 I therefore find that rule 9 has been and is being
maintained and distributed by Respondent in violation of
Section 8(a)(1) of the Act.
As to rule 12, it is settled that employees have a pro-
tected right to display as well as possess union materials
at their place of work. 6 Moreover, review of such mate-
rials by management prior to its distribution is obviously
encompassed in the term "unauthorized" used in rule 12.
Predistribution clearance by management of union litera-
ture has been found unlawful,' and it would seem the
same result is applicable to predisplay clearance. There is
no evidence that rule 12 was required to guard against
interference with production or discipline. Accordingly,
although I do not agree with the General Counsel that
rule 12 prohibited employees from wearing or displaying
union insignia on their person in view of the evidence
that a number of employees did wear such paraphernalia
without restriction or discipline therefor, I find that rule
12 has a clear tendency to inhibit the protected display
of union materials, and the continued maintenance and
distribution of this broad rule violates Section 8(a)(1) of
the Act.
B. The Discharge of Laland Anderson and Certain
Allegations of 8(a)(l) Violations
General Context
Organization on behalf of the Union commenced in
late July among Respondent's employees. Laland Ander-
son and his brother made the first employee contact with
the Union and thereafter Laland Anderson solicited
about 30 to 35 union authorization cards from Respond-
ent's employees in August. He was terminated on Sep-
tember 19. The Union, on October 3, petitioned for a
Board-conducted election. An election was held on No-
vember 30, and the Union lost.
About mid-August,' Laland Anderson asked Plant
Manager Nunn for permission to change his work sched-
ule so he could attend his son's high school football
games. Nunn referred him to Unit Manager Campbell for
approval of this request. Campbell asked Anderson if his
request was an act of harassment of management because
of the Union.9
On or about September 6, employee Walter Chambers
stabbed a screwdriver through employee Tim Payne's
toolbox. Anderson witnessed him so doing. Respondent's
disciplinary rules provide for termination of employment
for the first infraction of the rule forbidding "Abusing
and/or wilfully damaging/destroying employee personal
Essex International. Inc., 211 NLRB 749 (1974) There is no showing
of persuasive business justification for such a broad rule.
5 Blue Cross-Blue Shield of Alabana, 225 NLRB 1217, 1220 (1976).
Dillinhamrn Marine and Manufacturing Co.. Fabri-Valve Division, 239
NLRB 904 (1978).
'lMcDonnell Douglas Corporation. 240 NLRB 794 (1979).
I credit Anderson on the approximate time of this occurrence.
9Campbell denies mentioning the Union. but I credit Anderson. the
more believable of the two on this point.
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property or company property." The toolbox was com-
pany property.
In investigating this incident, Respondent was told by
Payne that one Ross and he had exchanged opposing
views about the Union, Ross being for and Payne
against, prior to the incident, and that after the incident
Ross asked Payne if he had changed his mind. Ascertain-
ing that Anderson had been a witness to the toolbox
stabbing, Campbell and Shift Manager Patterson ques-
tioned him about it. I credit Anderson that Campbell
asked him if the damage was union harassment, and said
that if he could prove it related to the Union or that An-
derson had done it Campbell would fire him. Anderson
refused to say who had done the deed. Anderson was
called into Nunn's office, where Nunn asked him if the
incident had anything to do with the Union, received a
negative answer, and went on to say that it looked like
harassment because of the Union to him. " Anderson still
would not inform.
The following day, Chambers, who had previously
denied to Patterson that he had done it, confessed to Pat-
terson and Campbell, with the explanation he had had a
bad day and stabbed the box, according to Campbell, in
a "fit of passion." In the course of his confession Cham-
bers said he was not crazy about the Union. Campbell
reported Chambers' admission to Nunn who instructed
Campbell to discipline Chambers. Chambers received a
written reprimand and was sent home 2 or 2-1/2 hours
early, but was paid for this time off from work.
On September 17, the plant fire alarm went off due to
an opened valve on the sprinkler system. Anderson and
employee Joel Odom had been seen in the immediate vi-
cinity of the valve in question shortly before the alarm
went off. Campbell interrogated both employees, in Pat-
terson's presence, and both denied opening the valve. I
credit Anderson's testimony that Campbell made it
known that he suspected the incident to be an act of
union harassment, but I do not credit the testimony of
Odom that Campbell said he would fire the two if the
incident or they had anything to do with the Union be-
cause it seemed to me as Odom testified that he was ex-
pressing his understanding of Campbell's intent rather
than what Campbell actually said.
On September 25, Anderson, as a practical joke,
caused Patterson to be paged to the heat treat roof. An-
derson denied to Patterson that this paging had been at
his instigation. Within an hour of the incident Campbell
suspended Anderson, who had by then admitted his act,
until the next day when he was to meet with Nunn on
the matter.
Anderson met with Nunn and Campbell on September
26. Nunn testified that he reviewed Anderson's record
prior to meeting with him and noted an absence problem
and poor work performance. I credit Anderson that
Nunn told him, after Anderson apologized for the paging
incident, that he was not firing Anderson for that reason
but he had noted Anderson had five unexcused absences.
Anderson protested to Campbell, also present, that this
' I credit Anderson's version, noting that Nunn concedes he told An-
derson he took the incident seriously "for one reason only" because if it
involved harassment of Payne for his point of view he did not like it and
would stop it. Nunn was plainly talking about Payne's union views.
was wrong but he might have five incidents of unex-
cused tardiness. Campbell responded that it was the same
thing and Anderson had five unexcused absence days.
Anderson had, on May 7, been counseled about unex-
cused tardiness," and I conclude, in the absence of evi-
dence to the contrary, that he had no absentee problem
other than some tardiness preceding May 7, which has
not been shown to have continued thereafter. Respond-
ent proffered no attendance record on this subject to
contradict Anderson and this supports my conclusion.
Nunn then had a private discussion with Campbell, who
urged discharge, and returned with Campbell to tell An-
derson he was discharged.
Nunn testified that he discharged Anderson for insub-
ordination. The documentation of the discharge signed
by both Campbell and Nunn on September 26 states the
offense as "Insubordination to Immediate Supervisor,"
and explains "Laland used the paging system to page
Paul Patterson to heat treat rush when Paul was not
needed in heat treat. Laland denied he paged Paul." On
October 2, Respondent issued a separation notice on a
form provided for issuance to employees by the State of
Georgia Department of Labor Employment Security
Agency. The reason for separation stated on the form by
Respondent is "Employee was terminated due to being
uncooperative."
Respondent's efforts to explain in what way Anderson
was insubordinate are confused and unbelievable. Nunn
explained that "uncooperative" on the state form means
insubordination, insubordination includes attempting to
harass management, and an employee who refused to
follow company policy would be uncooperative. He then
further explained:
Q. Now you have already told me that you fired
Mr. Anderson for insubordination?
A. Insubordination, yes, ma'am.
Q. I would like for you to explain specifically
why Mr. Anderson was fired.
A. Well, Mr. Anderson was fired because he
picked up the telephone, called the maintenance
office where they have a microphone and said,
"Page Paul Patterson, come to heat treat roof or
rush immediately." Mr. Patterson went out there
and there was nothing wrong and when you page
somebody to heat treat in the rush or to the roof it
either means you have got a fire or an imminent ex-
plosion.
Q. Okay, and is that the reason that you dis-
charged him?
A. Yes, it is. 12
Campbell testified:
JUDGE WOLFE: . . . if I understand correctly,
you recommended to Mr. Nunn that Mr. Anderson
be discharged?
" The May 7 counseling report specifically notes that it was not a
"write-up" but was to serve as constructive criticism.
2 I am not convinced that the page to the roof by Anderson was con-
strued as a fire or imminent explosion. There is no persuasive evidence
Patterson had reason to so construe it.
446
T.RW. HEARINGS DIVISION
THE WITNESS: Yes.
JUDGE WOL1FE: What reason did you represent to
Mr. Nunn?
THE Wr-NESS: For insubordination and harass-
ment of his second shift, shift manager.
The reason for calling him to the heat treat de-
partment when he did not need him and from the
standpoint that he lied to his shift manager when he
was asked about it and then said to me when I was
subsequently questioning him about the fact that he
only did it as a joke.
JUDGE WOI.FE: Okay, but in any event, the basic
reason you state was insubordination with regard to
who, Mr. Patterson?
THE WITNESS: Yes, sir.
JUDGIE WOL TE: Now, if you will explain to me,
perhaps I am a little thick but I have had trouble all
day long on this; how does this "harassment" con-
stitute insubordination? I am not trying to argue, I
just want to know why you call it insubordination?
THE WITNESS: It is my opinion, sir, that if an em-
ployee does anything that, or refuses to do any-
thing, or in fact when he does something that ap-
pears to be harassment of management and then
denies the fact, and then after he does admit the
fact, he twists the story in some fashion, and then
says that it is only a joking matter, to me I question
the fact of his responsibility to himself and to the
company.
Q. (By Ms. Lieberwitz) You have certain compa-
ny rules and policies that employees must follow,
isn't that true?
A. Yes, ma'am.
Q. Would you consider an employee insubordi-
nate if he did not follow company policy?
A. I think it would probably depend on the cir-
cumstances, that is a hard question for me to
answer, I don't really know.
Respondent claims the discharge was required by the
Company's rules and points to three other discharges for
"insubordination" to support its position that "insubordi-
nation is seen to be any form of obstinate or uncoopera-
tive behavior and is not merely a refusal to follow super-
visory instruction." Respondent's effort is not persuasive.
One of these three dischargees refused a direct order to
work; another made an obscene gesture to his supervisor
in response to an order; and the third intentionally
missed work in order to work at a second job. I do not
see how the third employee was insubordinate, but the
other two plainly were in the usual sense of the word.
According to Respondent's written rules, insubordina-
tion is a type of violation which "will" result in dis-
charge for the first infraction. The offense itself is set
forth in the "Employee Guide" as follows:
4. Insubordination to supervisory personnel. i.e.,
refusal to carry out a direct, reasonable order from
immediate supervisor that poses no threat to safety
or health.
Respondent's theme throughout the hearing was that
Anderson was insubordinate because he was "harassing
management." To support this hypothesis, Respondent
dwelt long on Anderson's refusal to inform in the tool-
box incident; the fire alarm incident which admittedly
cannot be proved the result of any act by Anderson; the
paging of Patterson; and the use of company phones for
personal long-distance calls. None of these incidents
amounts to insubordination in my view, and Respond-
ent's strained contentions that Anderson was harassing
management, therefore was uncooperative, and was
therefore insubordinate are neither logical nor persua-
sive. Nothing chargeable to Anderson warrants dis-
charge under Respondent's own rules. Both the paging
incident and the use of phones for private use fall within
the rule against "Misuse of inhouse phones and/or
paging system" for which there is five-step progressive
discipline consisting of an (1) oral warning, (2) a written
warning, (3) a written reprimand, (4) 1-week suspension
without pay, and (5) termination for the fifth infraction.
The discharge of Anderson for the first infraction was
plainly unwarranted. Moreover, if the paging incident be
construed as "horseplay," Respondent's rules provide for
2 weeks' suspension for the first infraction and termina-
tion for the second within a 12-month period. This rule
was plainly not applied to Anderson. Further, assuming
arguendo that Anderson had a poor attendance record
and failed to follow supervisory instructions, thus being
uncooperative, he would be entitled under Respondent's
rule covering these violations to a written warning, a
written reprimand, and a 2-week suspension for the first
three infractions before being terminated for the fourth
offense. There is no company rule applicable to any of
Anderson's alleged misconduct which calls for discharge
instanter. I am convinced Respondent seized on "insub-
ordination" as a pretext to accomplish the discharge of a
leading union adherent. That Respondent knew Laland
Anderson was a union activist and was hostile to such
activities is readily inferable from its repeated accusations
to him, commencing in August, that he was engaging in
union-inspired harassment of the company, a peculiar ob-
session of Respondent not shown to be grounded on any
reasonable foundation. The evidence indicates to me that
it was Respondent, rather than Anderson, who was en-
gaged in acts of harassment for the purpose of construct-
ing some colorable reason to discharge him. Thus, (a)
Campbell attempted to convert an innocent request for
shift change to union harassment; (b) Anderson's refusal
to inform on Chambers was twisted into obstinate behav-
ior supportive of the ultimate conclusion of uncoopera-
tion equalling insubordination; (c) the suspicion that An-
derson or Odom may have opened the valve causing the
fire alarm to go off ripened into a conclusion of union
harassment equivalent to insubordination; and (d) Ander-
son's misuse of the paging system warranting nothing
more than an oral warning for this first infraction, ac-
cording to Respondent's own rules, suddenly became in-
subordination warranting immediate discharge. The in-
sertion of Anderson's misuse of company phones for per-
sonal use. which he had agreed to pay for prior to his
discharge, and his attendance record is transparent
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
makeweight designed to show what an unsatisfactory
employee Anderson was, and indicates the absence of
any supportable lawful cause for the discharge.
In addition to my conclusion that the reasons ad-
vanced for the discharge are transparently pretextual and
warrant an inference of unlawful motivation,iS the treat-
ment of Anderson is in marked contrast to that of Cham-
bers, who advised Respondent he was not crazy about
the Union. Chambers committed an offense against prop-
erty clearly warranting immediate discharge under Re-
spondent's rule; first denied before admitting the deed;
and then was given only a reprimand on the specious
ground that his destructive act was excusable because he
had a bad day, was upset, and acted in a "fit of passion."
His 2- or 2-1/2-hour layoff was in the nature of rest and
recreation rather than discipline because he was paid for
this time off, hardly a penalty. This treatment of Cham-
bers, not crazy about the Union, illustrates to my satis-
faction that stringent enforcement of its rules was under-
taken by Respondent on a selective basis to suit its own
purposes, and the convoluted reasoning employed to sub-
ject Anderson to discharge was designed to construct an
excuse to get rid of him because of his extensive union
activity, whereas it was deemed desirable to excuse
Chambers in view of his, at most lukewarm, attitude
toward the Union. Moreover, Campbell's advice to An-
derson that he would be fired if he had damaged the
toolbox or if the damage was attributable to union activi-
ty reveals that Respondent's criteria for discharge incor-
porated union activity as a controlling factor, and also
constitutes a threat of discharge for engaging in union
activity which violates Section 8(a)(I) of the Act.
I conclude and find that Anderson was discharged in
order to discourage employee union activity and his dis-
charge therefore violated Section 8(a)(3) and (1) of the
Act. Further, I find the question put to Anderson by
Campbell in August as to whether his request for shift
change was a type of union harassment amounted to un-
lawful interrogation with respect to his union activities
and violated Section 8(a)(1) of the Act. 4 Campbell had
no colorable reason, other than a search for information
about union activities, to posit union harassment as a le-
gitimate subject of inquiry. Similarly, the statements of
Nunn and Campbell, on and after September 6, that they
suspected union harassment in the toolbox and fire alarm
incidents, were hardly warranted by the mere report that
Ross had asked Payne, after the toolbox stabbing, if he
had changed his mind about the Union. The Chambers'
confession made it clear that neither the Union nor its
supporters had damaged the box as an act of harassment,
and Respondent's continued references to nonexistent ha-
rassment for no good reason shown persuades me that
these references were designed to elicit information
about union activities and coercively impress on its em-
ployees that it was opposed to union activities. The mere
'' "The offering of a spurious defense, of course, supports all inference
as to the unlawfulness of the real reason," Grede boundries. Inc.. 211
NLRB 710, 712 (1974).
' I do not know why the General Counsel considers this incident out-
side the statutory limitations period. It clearly is not. It was litigated, is
fairly encompassed by the subject matter of the charge and the com-
plaint, and is intimately related to Respondent's pattern of conduct lead-
ing to Anderson's discharge. Siaco. Inc., 244 NLRB 4hl, 466 (1979).
coloration of these comments by the application of the
term "union harassment," or a variant thereof does not
obscure their purpose which was to interfere with and
restrain employee union activities, as they reasonably
tended to do, in violation of Section 8(a)(l) of the Act.
Upon the foregoing findings of fact and conclusions
based thereon, and upon the record as a whole, I make
the following:
CONCLUSIONS OF LAW
1. The Respondent, T.R.W. Bearings Division, a Divi-
sion of T.R.W., Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees about their
union activities, Respondent violated Section 8(aX1) of
the Act.
4. By threatening employees with discharge because of
their union activities, Respondent violated Section 8(a)(1)
of the Act.
5. By maintaining and distributing its work rules 9 and
12 set forth under the heading "Class A/5 Step Proce-
dure" in its "Employee Guide to standards of good con-
duct and responsiblitity on the job," Respondent has vio-
lated Section 8(a)(l) of the Act.
6. By discharging Laland Anderson in order to dis-
courage union activity and union membership, Respond-
ent violated Section 8(a)(3) and () of the Act.
7. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the usual cease-and-desist order and
notice posting, my recommended Order will require Re-
spondent to offer Laland Anderson unconditional rein-
statement to his former job or to a substantially equiva-
lent position if his former job no longer exists, and to
make him whole for all wages lost as a result of his un-
lawful discharge. Said backpay and interest thereon is to
be computed in the manner prescribed in F W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977). 1 5 I shall also recom-
mend that Respondent be ordered to withdraw and abol-
ish its unlawful rules, and notify its employees that it has
taken such action.
Pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 16
The Respondent, T.R.W. Bearings Division, a Divi-
sion of T.R.W., Inc., Flowery Branch, Georgia, its offi-
cers, agents, successors, and assigns, shall:
'5 See, generally, sis Plumbing & Heating Co., 138 NLRB 716 (1962).
"; In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
448
T.R.W. BEARINGS DIVISION
1. Cease and desist from:
(a) Discouraging union activity or membership in the
Union, or any other labor organization, by discharging
employees or otherwise discriminating against them in
any manner with respect to their tenure of employment
or any term or condition of employment.
(b) Coercively interrogating employees concerning
their union activities.
(c) Threatening employees with discharge because
they engage in union activities.
(d) Distributing, maintaining in effect, or enforcing
work rules 9 and 12 appearing under the heading "Class
A/5 Step Procedure" in its "Employee Guide to stand-
ards of good conduct and responsibility on the job."
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Offer to Laland Anderson immediate and full rein-
statement to his former job, without prejudice to his se-
niority or other rights or privileges, and make him whole
for any loss of earnings he may have suffered by reason
of his discriminatory discharge, in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Withdraw and abolish its work rules 9 and 12 set
forth under the heading "Class A/5 Step Procedure" in
its "Employee Guide to standards of good conduct and
responsibility on the job," and notify its employees of
said withdrawal and abolition in writing.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records and reports and all other records re-
quired to ascertain the amount, if any, of any backpay
due under the terms of this recommended Order.
(d) Post at its Flowery Branch, Georgia, offices and
facilities copies of the attached notice marked "Appen-
dix.""7 Copies of said notice, on forms provided by the
Regional Director for Region 10, after being signed by
Respondent's authorized agent, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that these notices are not altered, de-
faced, or covered by other material.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply with this Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT discourage membership in Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organiza-
tion, by discharging any of our employees or in any
other manner discriminating against them in regard
to their tenure of employment or any term or con-
dition of employment.
WE WILL. NOT interrogate our employees con-
cerning their union activities.
WE WILL NOT threaten our employees with dis-
charge because they engage in union activities.
WE WlI.L NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE HEREBY NOTIFY YOU that we have with-
drawn and abolished work rules 9 and 12 set forth
under the heading "Class A/5 Step Procedure" in
our "Employee Guide to standards of good conduct
and responsibility on the job."
WE W.l offer Laland Anderson immediate and
full reinstatement to his former job or, if that job no
longer exists. to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, and WE WILL make him whole for
any loss of earnings he may have suffered as a
result of the discrimination against him, with inter-
est thereon.
All our employees are free to join International Asso-
ciation of Machinists and Aerospace Workers, AFL-
CIO, or any other labor organization.
T.R.W. BEARINGS DIVISION, A DIVISION
of: T.R.W., INC.
449