Weyerhaueser Co.

National Labor Relations Board - Board Decisions

Aug 26, 1980

251 N.L.R.B. 574 (N.L.R.B. 1980)

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weyerhaueser Company and Highway and Local
Motor Freight Employees, Local 667, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 26-CA-7739, 26-CA-7845, and
26-CA-7925
August 26, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On May 16, 1980, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.'
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 and
hereby orders that the Respondent, Weyerhaeuser
Company, West Memphis, Arkansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
i We have modified the Administrative Law Judge's notice to conform
with his recommended Order
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
251 NLRB No. 97
WE WILL NOT coercively interrogate our
employees concerning their sympathies or de-
sires regarding Highway and Local Motor
Freight Employees, Local 667, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
WE WILL NOT impliedly threaten our em-
ployees with discharge for engaging in union
activities.
WE WILL NOT solicit from employees their
grievances and imply that they would be recti-
fied in order to discourage their union activi-
ties.
WE WILL NOT imply to employees that their
selection of a union would be futile.
WE WILL NOT solicit our employees to cam-
paign against the Union.
WE WILL NOT suggest or encourage em-
ployees to form or serve on a committee or
group to discuss grievances with management
as an alternative to having a union represent
them.
WE WILL NOT admonish employees not to
give each other advice regarding union activi-
ty or other protected concerted activity.
WE WILL NOT more stringently enforce our
work rules or change work practices in order
to discourage our employees' union activities.
WE WILL NOT issue verbal and written
warnings to our employees in connection with
a more strict application of our rules in re-
sponses to the union activities of our employ-
ees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL revoke and rescind the warnings
discriminatorily issued to Linda Ross, James
Rogers, Lula Mae Cunningham, and Roy Lee
Brown and physically expunge from their per-
sonnel records any record of such warnings.
WEYERHAEUSER COMPANY
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This matter was heard at Memphis, Tennessee, on Febru-
ary 4-6, 1980. The charges were filed by Highway and
Local Motor Freight Employees, Local 667, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousmen and Helpers of America, hereinafter
WEYERHAUESER COMPANY S75
called the Union, in Case 26-CA-7739 on April 5, 1979,'
(amended May 18); in Case 26-CA-7845 on June I: and
in Case 26-CA-7925 on July 16 (amended July 30 and
August 10). The complaint in Case 26-CA-7739 issued
on the subsequently filed charges on July 13 and August
14. The consolidated complaints, as further amended at
the hearing on February 4 and 5, alleged that Weyer-
haeuser Company, herein called the Respondent or the
Company, violated Section 8(a)(l) of the National Labor
Relations Act, as amended, herein called the Act,
through various and numerous acts of interference, re-
straint, and coercion of its employees by its supervisors
and agents, and further violated Section 8(a)(3) and (1)
of the Act through the written and verbal warnings
issued to its employees James E. Rogers, Lula Mae Cun-
ningham, Elbert Smith, Roy Lee Brown, Linda Ross,
and Kay Suggs; through the suspensions of its employees
James E. Rogers, Roy Lee Brown, Roy Miller, Laverne
Stevenson, Sylvester Hill, and Curtis Golden; and
through the discharge of its employee James Thompson,
all because of their activity on behalf of the Union.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OI FACT
I. JURISDICTION
The Respondent is a corporation licensed to do busi-
ness in the State of Arkansas with an office, plant, and
place of business located in West Memphis, Arkansas,
where it is engaged in the manufacture of hardwood ply-
wood. During the 12-month period preceding issuance of
the original complaint, the Respondent purchased and re-
ceived at its West Memphis, Arkansas, location products
valued in excess of $50,000 directly from points located
outside the State of Arkansas and, during the same
period of time, the Respondent sold and shipped from its
West Memphis, Arkansas, location products valued in
excess of $50,000 directly to points located outside the
State of Arkansas. The Respondent admitted in its
answer, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. The Respondent also admits, and I find, that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union's organizational campaign began in early
March. The first meeting between the Union and the Re-
spondent's employees took place on March 3 at the
home of employee Lula Mae Cunningham. Sometime
within the next week or two, union buttons, about the
size of a quarter or somewhat larger and containing the
name of the Union thereon, were distributed to the em-
ployees and a number of them began to wear them in the
plant.
I All dates are in 1979 unless otherwise stated
On March 12 the Union by letter requested the Em-
ployer to recognize and bargain with the Union. On the
same date the Union filed a petition with the Regional
Office of the Board, Case 26-RC-5960, seeking an elec-
tion in an appropriate unit of the Respondent's employ-
ees. Thereafter, a Stipulation for Certification Upon Con-
sent Election was approved by the Regional Director on
April 4 and an election was held on May 10. Challenges
to certain ballots were sufficient to affect the outcome of
the election. On May 17, the Employer filed timely ob-
jections to the election. On June 22 the Regional Direc-
tor's Report on Challenges and Objections issued recom-
mending that one of the challenges be sustained and find-
ing that the remaining challenges were not determina-
tive. It was further recommended that the Respondent's
objections to the election be overruled with the excep-
tion of one which was ultimately set for a hearing. Fol-
lowing the hearing, the Board on February 7, 1980,
issued its Decision overruling the Respondent's objec-
tions and certifying the Union. 247 NLRB No. 147.
For the most part the violations of Section 8(a)(1) of
the Act alleged in the complaint occurred prior to the
election on May 10. On the other hand, most of the al-
leged 8(a)(3) violations alleged, including the written
warnings, suspensions, and the discharge, took place sub-
sequent to the election. Because the allegations of the
8(a)(l) violations are numerous and are attributed to a
number of different supervisors of the Respondent,
chronological treatment of the allegations would be un-
wieldy. Accordingly, treatment of the allegations will be
set forth below substantially in the order that the allega-
tions appeared in the complaint.
B. The Alleged 8(a)(l) Violations
1. The alleged coercive interrogations and threats
Employee Kay Suggs testified that she was sent to the
employee lunchroom by Stepney Bennett, a foreman and
an admitted supervisor, to talk to Kenneth A. Schom-
mer, plant manager, about mid-April. Although Schom-
mer initially asked Suggs about some equipment that was
not operating the conversation soon turned to the union
campaign. Schommer, according to Suggs, stated that
the Company was completely against the Union and
would do everything it could to keep it out. He then in-
quired of her why she wanted a union and Suggs re-
sponded, relating to him her reasons. Schommer went on
to ask her if she had any particular problems, asked her
what she thought the problems were generally, and if
wages were a problem. The conversation lasted around
10 to 15 minutes, according to Suggs.
Schommer, called by the Respondent, admitted the
conversation with Suggs, and that the meeting was at his
request. Suggs was wearing a union button2 when he
talked to her. Further, on cross-examination Schommer
admitted that he had asked Suggs about her union activi-
ties and why she wanted the Union.
The General Counsel argues that the interrogation of
Suggs was coercive even though Suggs may have been
I The button as described by itnesses as being about the size of a
quarter and had the name of the Union on it
WEYERHAUESER COMPANY 575
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wearing a union button at the time. Citing 17T Auto-
morive Electrical Products Division, 231 NLRB 878 (1977),
the General Counsel contends that an employer is not
free to probe directly or indirectly into the reasons for
even a known union adherent's support of the union be-
cause such probes tend to be coercive. I find the cited
case controlling here. Moreover, as the Board stated in
Strucksnes Construction Co., Inc., 165 NLRB 1062 (1967),
"In our view any attempt by an employer to ascertain
employee views and sympathies regarding unionism gen-
erally tends to cause fear of reprisal in the mind of the
employee if he replies in favor of unionism and, there-
fore, tends to impinge on his Section 7 rights." See also
Birdsall Construction Company, 198 NLRB 163, 170
(1972); General Metal Products Company, 164 NLRB 64
(1967). Suggs' wearing of the union button did not li-
cense Schommer to conduct an inquiry into the basis or
extent of her union support. Whether Suggs was person-
ally coerced by Schommer's remarks is immaterial, for
the test is whether or not Schommer's remarks tended to
interfere with the free exercise of employee rights under
the Act. See Mohican Mills, Inc., 238 NLRB 1242 (1978).
I find here that it did.
Employee Linda Ross testified that she was questioned
by both Schommer and Earl Sayers, plant superintend-
ent, around April 13. According to Ross, she first talked
to Earl Sayers in the employee lunchroom at Sayers' re-
quest. Sayers in his conversation with Ross told her he
was worried about her and asked her why she felt like
she needed a union "in here." Ross explained her dissat-
isfaction and subsequently Sayers asked her if he could
relate their conversation to Schommer. She approved.
On the same day and shortly after the conversation with
Sayers, Schommer asked Ross to meet him in the lunch-
room where the two proceeded to talk about the Union.
Schommer, according to Ross, asked Ross why she felt
like she needed a union, and how she thought a union
could help her.
Ross was impressive in demeanor and recall, and I
conclude that she is worthy of belief. In any event,
Schommer admitted that he had asked Ross about her
union activities and why she had wanted a union. Sayers
also did not specifically deny the questions attributed to
him by Ross. I therefore find that Sayers and Schommer
questioned Ross concerning the basis of her union sup-
port and in so doing unlawfully interrogated her in viola-
tion of Section 8(a)(1) of the Act.
Ross also testified that Adrian Huggins, a foreman and
admitted by the Respondent to be a supervisor within
the meaning of the Act, came to her at her work station
I day shortly after the first union meeting on March 3
and stated that Schommer had heard that Ross was pass-
ing out union cards. Ross denied that she had and Hug-
gins responded that he did not blame her if she had be-
cause he knew the problems that everyone was having.
Huggins did not testify. Ross is credited. At first blush,
because of Huggins' subsequent remark that he did not
"blame" Ross if she had passed out cards, his initial in-
quiry as to whether she had actually passed out cards
might appear innocuous and uncoercive. However, it
does demonstrate Respondent's concern generally, and
Schommer's concern in particular, about employees'
union activities. I conclude, and again notwithstanding
the fact that Ross may have been wearing a union button
at the time,3 that Huggins' questions tended to be coer-
cive particularly when considered in light of the other
violations of the Act found above and hereafter, and I
find that Huggins' questions of Ross therefore violated
Section 8(a)(l) of the Act.
It was the testimony of employee Sylvester Hill that,
at one point after he began wearing a union button, the
date unspecified,4 Sayers approached him and, in relation
to the union button Hill was wearing on his hat, asked
Hill, "What you got on your hat there, Sylvester?" Hill
replied that it was just a button and Sayers asked what
he was wearing it for and if it was going to feed him.
Hill answered that it was just for decoration. Sayers in
his testimony did not specifically deny the questions at-
tributed to him by Hill which the General Counsel
argues constitute unlawful interrogation. Ordinarily a
simple inquiry as to what kind of button an employee
might be wearing might be innocuous. However, here
Sayers coupled his initial question with a second question
as to why the employee was wearing the button and
whether or not the button was going to feed the employ-
ee. The latter remark adds a more sinister connotation to
the initial inquiry and suggests an economic risk involved
in the wearing of the button. Accordingly. under these
circumstances the question cannot be regarded as com-
pletely innocuous and I conclude that it was coercive
and violative of Section 8(a)(1) of the Act as alleged.
Another incident of coercive interrogation was attrib-
uted to Schommer by employee James Thompson.
Thompson testified that on the day of the election
Schommer approached him at his work station and asked
him if he had made up his mind how he was going to
vote. Thompson, who had worn a union button at the
plant since about mid-April, testified that he told Schom-
mer that it was a secret-ballot election and he would like
to keep it like that because he knew how to vote. 5
Thereafter Schommer went with Thompson part way to
the polling area as Thompson was going to vote.
Schommer, in his testimony, did not recall, but did not
specifically deny, the comments attributed to him by
Thompson. He admitted that he had talked to Thompson
about the Union on more than one occasion and had
asked him to keep an open mind.
Assuming Thompson's testimony to be accurate, I am
not persuaded that Schommer's simple inquiry as to
whether or not he had made up his mind about how he
was going to vote, without more, constituted coercive
interrogation. The question was not directed at ascertain-
ing the way Thompson was going to vote or the reasons
for Thompson's voting one way or the other. Under
these circumstances, I do not find Schommer's question
of Thompson to be coercive or violative of the Act.
:' While the record establishes that Ross did wear a union button in the
plant, it does not disclose when Ross began wearing i or whether she
was wearing such a button at the time of the questions by either Schom-
mer or Sayers as related above.
' Inasmuch as employees began wearing union buttons around a week
or so after the first meeting on March 3, I conclude that Hill began wear-
ing a union button around mid-March
5 Thompson testified that he was illiterate.
WENTRHAUESERE COMPANYI 577
A number of instances of coercive interrogation was
attributed to Foreman Stepney Bennett. Thus, employee
Lula Cunningham related in her testimony that about
March 26 she was approached at her work station by
Bennett who asked her why she wanted a union. Cun-
ningham replied that Bennett was not in a position to ask
her why she wanted a union. There followed a discus-
sion about the Union in which Bennett told Cunningham
that if the Union got in the plant it could not promise
her higher wages and could not give her job security
and that once the Company and the Union went into ne-
gotiations she would have to accept whatever the Union
accepted from the Company. About 2 days later Bennett
again approached Cunningham and asked her if she felt
she was being treated unfairly at the Company. When
Cunningham responded affirmatively Bennett replied
that if he worked on a job and he was being treated un-
fairly he would go some place else to work.
A similar remark was attributed to Bennett by Linda
Ross on March 30. Ross related that on that date Bennett
engaged her in a discussion about the Union at her work
station and remarked that Schommer was very disap-
pointed in the employees. Subsequently in the discussion
which involved an explanation by Bennett of the Compa-
ny's hierarchy and Ross' place at the "bottom," Bennett
remarked that he had worked for a company one time
that he did not agree with so after 5 years he left and
found himself another job. He then stated that if Ross
did not agree with the Company why she did not leave
and find another job.
Bennett did not specifically deny the remarks attribut-
ed to him by Cunningham although he did admit that he
had talked to her about the Union once or twice. More-
over, he did not specifically deny remarks attributed to
him by Ross. I find the testimony of Cunningham, and
Ross particularly, to be credible, and I conclude that
Bennett made the remarks attributed to him. I further
conclude that the question of Bennett as to why Cun-
ningham wanted the Union tended to be coercive and
was therefore violative of Section 8(a)(l) of the Act. In
addition, as argued by the General Counsel, Bennett's in-
vitation of Cunningham and Ross, in effect, to quit or
find employment elsewhere constituted an implied threat
of discharge. See Jobbers' Supply Inc., 236 NLRB 112,
118 (1978); 726 Seventeenth Inc., t/a Sans Souci Restau-
rant, 235 NLRB 604 (1978). This conclusion is particu-
larly applicable here where Bennett in the same conver-
sation with Ross expressed the Respondent's disappoint-
ment with its employees for supporting the Union, there-
by equating union activity with disloyalty. See Oscar En-
terprises, Inc., OMCO, Inc., Halvin Products Co., 214
NLRB 823 (1974). While an implied threat of discharge
was not specifically alleged in the complaint it is clear
that the facts upon which this conclusion is based were
fully litigated at the hearing in conjunction with the al-
leged interrogation. The Board and an administrative law
judge are expected to pass upon an issue although it is
not specifically alleged to be an unfair labor practice in
the complaint if the matter was fully litigated. Monroe
Feed Store, 112 NLRB 1336 (1955).
Employee Thompson testified that I day after he
began wearing his union button in mid-April, Bennett
came over to his work station and asked him why he
was wearing a union button and Thompson replied that
it was because he had worked under a union before. Ap-
parently nothing else was said. Bennett, in his testimony
initially, could not recall whether he asked Thompson
why he was wearing a union button but then denied it. I
credit Thompson's version especially in light of the testi-
mony of Ross and Cunningham, tending to show a pro-
clivity on Bennett's part to inquire of employees regard-
ing their reasons for union support. I therefore find this
inquiry of Thompson by Bennett constituted another vio-
lation of Section 8(a)(l) of the Act.
An additional allegation of unlawful interrogation at-
tributed to Foreman Huggins was alleged in the com-
plaint. While not clear it appears that the General Coun-
sel is relying upon the testimony of employee Lonnell
Hill to establish the interrogation. Hill testified, without
contradiction, that around the middle of March Huggins
had passed out some literature concerning the company
policy "against having the union." Shortly thereafter
Huggins called her up to his desk in the plant and asked
her if she understood the literature he had passed out.
There followed some discussion of about 5 minutes' du-
ration in which Huggins related to Hill that he had pre-
viously been a union member. Hill testified that Huggins
stated in the discussion that if the Union did come in the
Company could shut down because they had other plants
making the same products they were making.
I can find no unlawful interrogation from Huggins' re-
marks. The only question attributed to him was an in-
quiry about whether Hill understood the literature given
to her. The response to that question cannot be expected
to reveal union support, sympathies, or inclinations. The
remark attributed to Huggins regarding the plant shut-
down would clearly be an unlawful threat. However, I
am not satisfied that Hill's testimony was accurate with
respect to the full context of Huggins' remarks. On
cross-examination, Hill, while steadfastly maintaining that
Huggins had said that, if the Union came in the Compa-
ny could shut down, exhibited confusion as to the con-
text in which the remark was made. Thus, asked if Hug-
gins had made the remark in conjunction with strikes,
Hill testified, "Well it was all in the same sentence that
he brought about." Then she testified that Huggins said
that if the Union did come in the plant could shut down
because they had other plants making the same products
that "we were making" and he was talking about the
possibility of a strike w hen this conversation came up.
Under these circumstances, and because it is unclear that
Huggins' remark was not made in the context of a lawful
temporary plant shutdown in response to a union strike,
I am unwilling to base a finding of an unlawful threat of
a plant shutdown on Hill's testimony.
While not specifically alleged in the complaint the
General Counsel introduced evidence that the Respond-
ent through Plant Manager Schommer threatened em-
ployees regarding the wearing of buttons. In this regard,
employee Roy Lee Brown testified that at some unspeci-
fied time after he began wearing a union button Schom-
mer came to him in the plant and told him, "You know
how me and Earl Sayers stands." After testifying that
WEYFRHAUESER COMPAN
578 DECISIONS OF NATIONAL LABOR RELATIONS 13()ARD
that was all that was said, and after a leading question
from the General Counsel, Brown added that Schommer
said, "You ought to take them union buttons off." I find
Brown's testimony on this incident and Schommer's
comments unpersuasive. Brown's testimony was vague
and incomplete and his recollection poor. Moreover, in
his prehearing statement to the Board, Brown had omit-
ted any reference to Schommer's comment about taking
the union button off. Accordingly, I do not credit
Brown's testimony on this point, and therefore find no
violation of the Act based on Brown's testimony in this
regard.
2. The alleged solicitation of grievances and implied
promises to rectify them
The complaint alleges that Schommer on April 13 and
18, and Sayers on April 13 and May 10 solicited employ-
ee grievances and impliedly promised that they would be
rectified. With respect to the allegations regarding
Schommer, the General Counsel appears to rely upon
the testimony of Ross regarding her conversations with
Schommer, already referred to above, as occurring in the
lunchroom on April 13. 1 have already found that
Schommer asked Ross why she felt she needed a union,
and why they could not "talk this out." Ross responded
to a degree but Schommer cut their discussion short,
saying he had to take his wife to church for a Good
Friday service. He asked to resume the conversation on
April 18. The conversation was resumed in the same
place on April 18 and Schommer, according to Ross,
took the occasion to explain the Respondent's strong op-
position to the Union. Schommer stated that the Re-
spondent was a big company and a Union could not
make it do anything, and all the union could do would
be to take $14 a month out of the employees' paycheck.
He added that the Union would, in effect, trade off em-
ployee benefits like a holiday in order to have checkoff
"because they are going to get their money regardless."
Moreover, Schommer added that if the Union struck the
Employer would take supervisors out of other plants and
run the plant or transfer orders to another plant. Finally,
Schommer concluded the conversation by stating that he
felt that Ross was making a mistake. He said he thought
that she was a very sensitive type of person, that he did
not feel like she could endure everything that was going
to be put on her because Weyerhaeuser would fight to
keep the Union out.
Schommer admitted he had talked to Ross on April 18
and did not specifically deny many of the comments at-
tributed to him. Further, he admitted that he had asked
Ross what she felt were some of the problems and
claimed that he regularly solicited grievances from em-
ployees.
I credit Ross' version since, as already indicated, I per-
ceived her to be a reliable and truthful witness. More-
over, her testimony is substantiated to a degree by
Schommer's admissions that he asked her to identify
problems. Accordingly, I find that the Respondent
through Schommer specifically solicited grievances from
her in a context calculated to dissuade her from her
union support. The fact that Schommer was seeking to
identify employee "problems" carries with it the infer-
ence that he intended to rectify such problems. See Tele-
dyne Dental Products Corp., 210 NLRB 435, 440 (1974).
Employees are not likely to miss the point of the implicit
promise to correct the problems. I am unable to accept
Schommer's unsubstantiated assertion that he regularly
solicited grievances. While there was some evidence that
the Respondent did have employee meetings at which it
discussed "problems," the regularity of such meetings
was never set forth on the record. Moreover, there was
no evidence of any specific pattern of solicitation of indi-
vidual employee grievances. In any event, it is clear
Schommer's solicitation of Ross' "problems" in the con-
text of the discussion about the Union was clearly re-
sponsive to the union campaign. I therefore conclude
that the Respondent through Schommer violated Section
8(a)(1) of the Act as alleged.
I further conclude, still based on Ross' credited testi-
mony and because the content of the conversation on
April 18 is fully litigated, that Schommer's remarks to
Ross were further violative of the Act because they
clearly implied the futility of union organization. See
Champagne Color, Inc., 234 NLRB 82 (1978); Calcite
Corporation, 228 NLRB 1048 (1977). 1 further find and
conclude that Schommer impliedly threatened the dis-
charge of Ross by expressing to her his belief that she
would not "endure" the union campaign. Again, while
these latter two findings were not based upon specific
complaint allegations it is clear that the conversations in
which the unlawful statements were made were fully liti-
gated and warrant the conclusions reached.
With respect to the solicitation of grievances attributed
to Sayers in mid-April the General Counsel apparently
relies upon the testimony of employee Elbert Smith.
Smith testified that in the second week of April, Sayers
approached Smith and talked to him about the Union.
Sayers remarked that he knew that Smith (a black) was a
leader of his people6 and that, if Smith wanted to do
something constructive to help "his people," one thing
he could do would be to talk to his people and get them
not to support the union activities. Sayers denied the re-
marks attributed to him by Smith. Smith appeared sin-
cere and I credit his testimony over Sayers' less persua-
sive denials. In addition to claiming Sayers' remark con-
stituted solicitation of grievances the General Counsel
also apparently relies upon the same remark to establish
a complaint allegation that Sayers unlawfully "solicited
an employee to dissuade fellow employees from support-
ing the Union .... " I find no solicitation of grievances
by Sayers, but I do find that he did solicit Smith to "dis-
suade" other employees against the Union and such so-
licitation was tantamount to asking Smith to campaign
against the Union. The Board has found such conduct to
be violative of Section 8(a)( ) of the Act. Delco-Remy
Division, General Motors Corporation, 234 NLRB 995
(1978); The Great Atlantic & Pacific Tea Co., 167 NLRB
776, 782 (1967).
The General Counsel apparently relies upon the testi-
mony of employee Roy Miller to establish an additional
complaint allegation regarding solicitation of grievances
" he reference, Smith testified. was to Smiths l acfiity in behalf of the
NAACP.
W'EYEHAUESER CPANY~ 579
attributed to Sayers.' Thus, Miller related that after he
had voted on the day of the election Sayers talked to
him at work and stated that "once they were trying to
get a union there, and they tried to form a committee
where that one man can go and talk to the boss for ev-
erybody if anything went wrong." Miller replied that it
would take guts to talk to the boss, and Sayers answered
that he felt that Miller had guts and could be the man for
it.
I find Sayers' testimony somewhat equivocal in his
denial of the remarks attributed to him by Miller. Sayers
related in his testimony that the employees had a com-
mittee and he does not know why he would have ap-
proached Miller on a matter like that. While Miller's tes-
timony was somewhat ambiguous I find it credible when
weighed against Sayers'. However, I can find no improp-
er or unlawful solicitation of grievances in Sayers' re-
marks, and I can therefore find no violation of the Act in
this regard. Although not alleged in the complaint, the
General Counsel in his brief citing Hendel Manufacturing
Company, Incorporated, 197 NLRB 1093 (1972), argues
that Sayers' remarks constituted an unlawful suggestion
for the employee formation of a shop committee to deal
with employee problems. I concur in this position even
though Miller's testimony was somewhat ambiguous and
notwithstanding the uncontradicted testimony of Sayers
that the employees had a shop committee that worked
with Schommer at times. I do not view Sayers' testimo-
ny as establishing that there was an active and function-
ing employee committee during the union campaign.
However, it appears, and I conclude, that Sayers' re-
marks to Miller were calculated to encourage the forma-
tion or use of an employee committee as an alternative to
union selection by the employees. Sayers encouraged
Miller to be active on such a committee. In so doing I
find, as argued by the General Counsel, that the Re-
spondent violated Section 8(a)(1) of the Act in Sayers'
remarks to Miller.
3. The alleged threat of loss of benefits
The amended consolidated complaint alleged that
Brenda Chism, an admitted supervisor for the Respond-
ent, on several occasions during the 3-week period begin-
ning around April 19, threatened employees with loss of
benefits if the Union were selected to represent them.
The only evidence to support this allegation was pro-
duced through the testimony of Roy Miller who testified
that about 3 weeks prior to the May 10 election Brenda
Chism came to him at his work station and told him that
if the Union came in that he could stand to lose some of
his benefits and even could take a cut in pay. She also
added, according to Miller, that if the Union got in and
there was a strike, if he got a job some place else the
Union could fine him for it.
Chism in her testimony did not specifically contradict
Miller but expounded more on what she told him. She
related that they were talking about union, pro and con,
and about benefits. She related Miller was stating that he
7 "Apparently" must be ued because he General Counsels brief does
not tie hi% arguments to the specific allegations of the complall and the
only teslimon\ offered regarding Savers' conduct on MaN 10. the date
alleged in the complaint, a, from Miller
would guarantee that under the Union employees would
get "so much an hour." Chism countered explaining that
when they negotiated they sat down \with a blank piece
of paper and the employees could get more than what
they presently had or they could get less, that they could
get more in benefits, or they could get less in vacation.
In short, she said she told Miller that she could not guar-
antee him he would get less but that was something that
nobody actually knew for sure until it came down to the
end. According to Chism, the conversation with Miller
took place on April 19 and was related to a letter to em-
ployees from the Respondent dated the same day which
wvas in Chism's possession during the conversation and
which outlined the give-and-take of the bargaining proc-
ess. The General Counsel does not contend that the
letter itself contained any unlawful statement.
I do not find Chism's testimony to be inconsistent with
Miller's. Even if Chism's account of her remarks to
Miller were inconsistent with Miller's I would he in-
clined to credit Chism's version because it is more com-
plete, plausible, and consistent with the letter to the em-
ployees which was being discussed. I can find no unlaw-
ful threats of loss of benefits in Chism's remarks to Miller
and I find no violation of the Act based upon such re-
marks.
It is also alleged in the complaint that Sayers threat-
ened an employee with suspension for giving a fellow
employee advice about the Union on or about July 9.
This allegation is based upon the testimony of Lonnell
Hill who related that on or about July 6 she had been
approached at the plant by employee Calvin Taylor8
who had just had a dispute with Supervisor Bennett over
a wage matter and who asked Hill how Taylor could get
in touch with the "Labor Board." Hill told Miller not to
call the Labor Board but to call the union representative
at the union hall and she gave him the union representa-
tive's telephone number about the time that Supervisor
Bennett walked up. Bennett proceeded to tell Taylor to
leave the building.
The following day, still according to Hill, she and em-
ployee Caroline Rucker were called to Sayers' office
where Sayers questioned them about Taylor and said
that he had been told that they had given Taylor
"advice." Sayers went on to state, "This is not the first
time I heard you all giving peoples advice. And I don't
see why it is Calvin Taylor is at home and not you all."
Sayers went on to state that he would appreciate it if
they would stop "giving peoples advice." Hill protested
that she had not given Taylor any advice until he asked
for it and when he did ask her how to get in touch with
the Labor Board she told him how to get in touch swith
the Union.
Sayers in his testimony recalled that Rucker and Hill
had come to his office and talked to him in the presence
of Carol Gardner (a personnel representative for the Re-
' The record ho'sk that Itill referred to Calvin as',lor Savers' testl-
mony referred to the employee involved as Calvin Hill Ihe record col-
lair, ia "srite up" bh Step Hennetll of an incidentl illsolWlig emplo) ee
Calin il alor on July 6. ilslsli g Ta.lor's dlisputl. uith Btcnett over a
'age claim xlhich ultimalelk resulted in Taylor', suspension on Juls ht.
(; C Fxh 83 I conclude that bolh Hill and Saser, erc referring to the
Cals il I a lor %tl pets1iOI
WEXERHAUESER COMANY q
580 DECISIONS OF NATIONAL LABOR REILATIONS BO()AR)
spondent who did not testify) regarding the suspension
of Taylor. Sayers said that something came up in the
conversation about having made some comment about
them giving "advice." Sayers said that he told them, "I
don't know about anyone giving anybody any advice,
but all I know is that Calvin Hill is suspended and you
two are still here working." Sayers denied that either the
Union or the Labor Board was mentioned in the conver-
sation.
Presumably the theory for the violation here which is
not specifically argued in the General Counsel's brief is
based upon the admonition against giving employees
"advice" coupled with reference to the suspended em-
ployee thus suggesting that should the employees contin-
ue to give "advice" they too might be suspended.
While Hill's testimony on the point was somewhat
confusing, I found it believable when compared with
Sayers' less than positive recollection of the matter.
Moreover, it would be unlikely that Hill and Rucker
would voluntarily have initiated a discussion regarding
any "advice" they gave to Taylor. Accordingly, I credit
Hill. In my opinion Sayers' remarks may fairly and rea-
sonably be construed as a threat that, if Hill and Rucker
gave employees "advice," they might well be suspended.
Whether Sayers was referring to the advice Hill gave to
Taylor about going to the Union or advice about Tay-
lor's wage claim his comment amounted to interference
with employee Section 7 rights. "Advice" concerning
the wage claim clearly would constitute protected con-
certed activity. I therefore find that Sayers' remark to
Hill and Rucker violated Section 8(a)(1) of the Act.
4. The alleged discriminatory warnings and changes
in working conditions
It is the General Counsel's contention that the Re-
spondent reacted to the union organizational campaign
by changing the working conditions of employees in a
number of respects and by more stringently enforcing its
work rules. Initially in this regard, the General Counsel
contends that the Respondent on and after March 15 re-
stricted its employees to their immediate work areas and
required them to have permission for restroom use con-
trary to its past practice of allowing its employees to
leave their work station without prior supervisory au-
thorization for any necessary purpose.
There is little dispute, and I find, that at all material
times the Respondent had a set of work rules which
were posted in its employees' lunchroom and which
were designed to be illustrative of the "type of offenses
that could be considered for disciplinary action." Includ-
ed within that group of rules which were formulated
with employee "input," well prior to the beginning of
the union campaign, was a rule which prohibited em-
ployees from leaving their work areas without contacting
their supervisors or other designated individuals. The
rule was specifically applicable to the leaving of work
areas to use the restrooms or telephones. Notwithstand-
ing this rule employees Lula Cunningham, Lonnell Hill,
Kay Suggs, and Linda Ross testified for the General
Counsel that prior to about the middle of March the Re-
spondent had not enforced the rule. According to Ross,
when Bennett took over supervision of her department in
mid-March he announced to all employees in his depart-
ment that there would be some "new" rules, that em-
ployees would stay in their work areas, that they could
not take food to their work stations, and employees
would have to have permission to leave their work areas.
Similarly, Suggs testified that Bennett at the employee
meeting advised the employees they would have to have
permission to go to the restroom. Suggs added that
around June 14 Bennett restricted employee use of the
restroom even further by limiting visits to the restroom
to once a day during worktime. However, that rule was
revoked by Bennett shortly thereafter.
Bennett was not the only supervisor who was enforc-
ing the requirement for permission to use the restroom
on worktime, for employee James Thompson testified
that Supervisor Brenda Chism told a group of employees
during the week following the May 10 election that they
had to have her permission before going to the restroom.
At the same time Chism told the group that they would
no longer be able to smoke "on the back porch" al-
though Thompson claimed in his testimomy that employ-
ees had been allowed to smoke in the back whenever
caught up with their work. Thompson also testified that
Chism additionally stated that an employee would have
to produce 250 boards or panels a night in her rework
section on that shift. Failure to produce the desired
amount would result in a warning for the first occasion
and a dismissal for the second. According to Thompson,
there had been no previous quotas on the number of
boards to be done.
While Cunningham could not recall the meeting where
Bennett made the announcement requiring permission for
the restroom, she testified that he told her some time
after the union campaign started not to leave her work
area without permission. On March 22 Cunningham,
who was identified as a union supporter by her wearing
of a union button, testified that she was approached by
Bennett and told that she had been out of her work area
for 30 minutes. She denied she was away 30 minutes but
admitted she had been in the personnel office for a short
while with the knowledge of Supervisor-Trainee Frank
Connelly. Bennett said "Okay," but 30 minutes later ap-
proached her again and told her she had been in the res-
troom for 20 minutes. She said that was a lie, but Ben-
nett told her to go with him to Sayers' office for a warn-
ing. In the office Sayers stated she had been spending ex-
cessive time in the restroom and too much time away
from her work station. He advised her he was giving her
a written warning. The next day Sayers gave her a copy
of the warning which stated:
The sanders & sawline was shutdown due to me-
chanical repair. Employee was notice [sic] out of
work area & asked to return to her work. Employee
returned to work area. However she remained for
only a few minutes at which time she left & went to
ladies' room. Employee spent excessive time in
ladies' room, even though she had been cautioned
about the same type of behavior. Also, all employ-
ees were informed of remaining at job stations
during downtime at employee meeting on March
15, 1979.
NVEYFRIIAUAESE CNIPANYN~ 581
Cunningham in her testimony on cross-examination
claimed she had only been in the restroom 6 or 7 min-
utes.
Suggs was verbally warned on May 21 relative to her
allegedly excessive absence from her job station on May
19. According to Suggs, whose union sympathy was also
indicated to Respondent by her wearing of a union
button, she asked permission of Bennett on May 19 to go
to the restroom. He told her she could but asked her to
stop by his office. She did so and there he accused her of
going to the restroom too much and claimed he had it
down there that she had gone five times. Suggs called
Bennett a liar. He said he would check his record and
get back with her. Instead, on May 21, Bennett called
her back into his office where he gave her a "verbal
warning," which stated:
On 5-19-79, Kay Suggs was issued a verbal
warning due to her excessive absence from the job
station. During discussion Kay was not receptive of
what was discussed and was insubordinate.
Another employee, James Rogers, received a warning
relative to his being away from his job area and taking a
smoke break. Rogers, whose union sympathies were
known to the Respondent, stated that on March 28 he
had finished a load of wood in the rework department
and was waiting for the load to be removed. He decided
to get a drink and to go outside the building to smoke.
Employee Linda Ross who also worked in the area also
went out the door to smoke, but only Rogers had lighted
his cigarette when Bennett came out and told Rogers
and Ross they were not supposed to be smoking out
there, that they were supposed to be staying in their
areas. While going back to his work station, a distance of
about 20 to 30 feet according to Rogers, Bennett told
Rogers that he had previously told Rogers to stay at his
work station ad he was going to have to give Rogers a
warning for not doing so. Later in the day Bennett told
Rogers he was going to give him a verbal warning, but
still later he called Rogers to Sayers' office where Sayers
in Bennett's presence chastised Rogers for "picking at his
nails" that morning, not working as directed, and leaning
up against the loads. Rogers protested he had never had
any problems before and he did not see why they could
not go outside the back door and smoke since there was
a "butt can" out there. The discussion concluded with
Sayers giving Rogers a written warning containing the
following language:
1. Employee has been warned previously to stay
in job area.
2. Today (3-28-79) employee was outside of
bldg. at back door taking a smoke break at unau-
thorized time, even though he was told to stay in
work area when waiting for setup.
3. Employee was observed several times leaning
on load idle and picking at his fingers. These inci-
dents all occurred when employee had materials at
work station with which to work.
9 Verbal warnings are recorded in the emplo)ecs' personnel file but
the record does not clearly indicate whether or not a erhal warning is a
first step in the Respondent's disciplinary system
Contrary to the claim in the warning note Rogers testi-
fied he had not been previously warned about staying in
his work area, and, in agreement with the testimony of
James Thompson noted above, claimed he had always
been allowed to smoke when caught up or when his ma-
chine was "down."
Roy Brown received a written warning on May 16
from Supervisor Chism concerning an incident that oc-
curred the preceding night. The warning which was stip-
ulated in evidence read: °
You left your work area last night to go to the
bathroom and to smoke a cigarette without contact-
ing your supervisor. You're being given this warn-
ing as outlined in group 11, number one work rules.
[Leaving work area without contacting supervisor.]
If this should happen again you will be disciplined
according to group II rules.
Brown did not deny that he had gone to the restroom
or that he had smoked. Futhermore, he made no claim
that he had gotten permission before going to the res-
troom.
With respect to the general allegation that the Re-
spondent more stringently enforced its work rules after
the union campaign began, the General Counsel relies
upon a number of exhibits'' obtained from the Respond-
ent's personnel files showing warnings and disciplinary
actions given to its employees for whatever reasons
during 1979 and preceding years. The Respondent intro-
duced in evidence some 16 additional exhibits related to
personnel actions and warnings over the same years. 2
For argument purposes the General Counsel restricted
comparison of the exhibits to the years 1978 and 1979.
His brief, however, did not attempt a breakdown com-
parison of the personnel actions and warnings. A detailed
analysis of the exhibits of both the General Counsel and
the Respondent is difficult because of some duplication
of documents and because it is not clear from some of
the documents whether the employee conferences with
supervisors and the supervisors' notes regarding such
conferences were in themselves disciplinary actions or
warnings. An analysis tends to substantiate, however, the
General Counsel's position that the Respondent issued
approximately 25 to 30 percent more employee warnings
in 1979 following the beginning of the Union's campaign
than it had in the calendar year 1978 and up to the be-
ginning of the union campaign in 1979.
Based on all of the foregoing evidence, the General
Counsel argues that the Respondent violated Section
8(a)(1) by restricting employees to their work areas, in-
creasing production quotas, requiring permission of em-
ployees to use the restroom, prohibiting employees from
smoking when caught up with their work, and generally
more stringently enforcing its work rules, all as a result
of the union activity of its employees. Furthermore, the
warnings given to Brown, Cunningham, Suggs, and
Rogers are also alleged by the General Counsel to have
been discriminatorily motivated because they were re-
n G.C Exh 23
" GC Exhs. 39-110
1 Resp Exhs 21-37
\VEYERIIALESLR COMPANY 8
5X82 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
sponsive to the union campaign and therefore violative
of Section 8(a)(3) and (I) of the Act.
The Respondent through its witnesses denied that its
application of its rules was changed in any way due to
the Union's campaign or that the warnings issued to
Brown, Cunningham, Suggs, or Rogers were discrimina-
torily motivated. Bennett testified that he took over the
shipping and receiving and finishing area in early March
replacing weaker supervisors. On March 15 he had a
meeting with the employees in the finishing department,
told them to stay at their work stations, and referred to
the work rules. According to Bennett, he did not tell the
employees anything new, and he claimed to have always
uniformly enforced the Respondent's rules in the areas in
which he had worked previously.
With respect to the warning issued to Cunningham,
Bennett did not substantially dispute the sequence of
events as related to Cunningham's testimony but he
claimed that he had observed her away from her work
station about 30 minutes altogether that day. Further, he
claimed he had talked to her about 4 days previously
about being away from her work station.
On the Suggs' warning Bennett testified he had ob-
served Suggs going too frequently to the restroom and
called her in and told her he had noted she had gone
four or five times in I day. She called him a liar so he
issued the warning to her for insubordination.
Bennett testified he gave the warning to Rogers when
he looked for Rogers in his work area and found him in-
stead out the back door smoking when he had work to
do. Because Bennett had talked to Rogers before about
leaving his work area and because he had also talked to
Rogers three or four times previously about standing
around picking his fingernails, he decided to give him a
warning. Linda Ross, who was present with Rogers
when Bennett had found him "out the back door," was
not given a warning because he had considered Rogers'
offense to be greater since it involved more than just
being away from his work area-it included being absent
from his station when there was work to do. Ross, ac-
cording to Bennett, had not really left her work area.
Chism likewise denied that she had failed to enforce
the Respondent's work rules prior to the union cam-
paign. Further, she denied that she had ever allowed em-
ployees to smoke when they were caught up on their
jobs. Moreover, she claimed that Bennett had never al-
lowed employees to smoke when their machines were
"down" in 1978 when Bennett had supervised her. On
the other hand, Chism related that employees were al-
lowed to smoke in the restroom incidental to the normal
use of the restroom so long as too much time was not
taken.
With respect to the production quotas mentioned by
Thompson, Chism testified that there was no change in
production quotas in Thompson's section other than that
resulting from a switch from an 8-hour shift to a 10-hour
shift. According to Chism, the weekly number of panels
expected to be produced, 250, remained the same at all
times, and was identical for all shifts.
In connection with the warning given Brown, Chism
testified that Brown had left his work station without
permission and without her having obtained a replace-
ment for him. He remained gone for more than 20 min-
utes and cost Chism 20 minutes' production on his equip-
ment, the glue spreader. It immediately affected the
work of three employees and had he been gone for 30
minutes more it would have affected the production of
three more.
In arguing the violation based upon enforcement of
the rules the General Counsel relies primarily upon the
timing of Bennett's announcement on March 15 to his
group regarding the "new" rules. This announcement
was only 2 or 3 days after the Union's demand letter and
its filing of the representation case petition and after
Plant Manager Schommer had had a conference with his
supervisors regarding the union campaign in which he
admittedly had instructed them to "run their departments
in accordance with the plant rules and bring their depart-
ments up to acceptable levels" of production and quality.
Beside the timing of Bennett's announcement on
March 15, support of the General Counsel's position is
found in the absence among all the exhibits submitted in
evidence by either the General Counsel or the Respond-
ent of any warnings to employees simply for being away
from their work areas without permission prior to March
15. Since it is claimed that Bennett was a rather strict su-
pervisor it seems highly unlikely that he would not have
issued at least one previous written warning or verbal
warning to an employee for being away from his work
station without permission. Yet the record shows no
such prior warning by either himself, Brenda Chism, or
any other supervisor for such a reason. On the other
hand, subsequent to March 15 the Respondent, in addi-
tion to warnings issued to Brown, Cunningham, Suggs,
and Rogers noted above, issued warnings to, or "wrote
up," four other employees for either leaving their work
stations without permission or leaving their stations
during time when their machines were being set up.':
The Respondent, in effect, concedes that it tightened
up on employees because it was encountering economic
and production difficulties during March, April, and
May, which difficulty Schommer in his testimony attrib-
uted specifically to employee attitudes during the union
campaign. This claim disregards the fact, however, that
Bennett's tightening up of the rules began within only a
few days after the Union's bargaining request and the
filing of the petition which the Respondent claims was
its first clear notice of union activity among its employ-
ees. Such a quick response could hardly be based upon
an observed impact of an organizational campaign on the
employees.
That Bennett was indeed becoming more strict on em-
ployees is shown by the undenied fact that he imposed,
although subsequently revoked, the clearly arbitrary re-
striction against employee use of the restroom on compa-
" Specifically these employees ere Sylvester Hill (written sWarning
dated 5-22-79. signed by Supervisor Adrian. Huggins, and Sayers, G C
Exh. 102). Lonnell Hill (writeup by Bennett dated 8-14-79. G.C Exh.
99). Leroy Faggett (written warning dated 5 30-79 by Huggins and
Sayers. ( C. Exh 371, and Benn, Thomas (verbal warning from Supervi-
sor Deena Steward dated I 12/79. G C Exh. 107) One employee had
been warned in March 1978 (Ricky Mason, G C Exh 41) about leaving
his work area o use the telephone without permission However, it ap-
pears that he had iolated a direct order not to leave his work area
%V1:)'F:Rl1AUFSFRSE COMPA4NY 5~3
ny time to once each day. The inexplicable imposition of
this restriction warrants an inference that it was retali-
atory in nature rather than remedial.
I am not so naive as to believe that the Respondent
was running a "country club" with employees freel
leaving their work stations for whatever purpose the)
desired at their own discretion. Nevertheless, and not-
withstanding its published rule against leaving work sta-
tions without supervisory permission, considering the
foregoing, and the record as a whole, including the Re-
spondent's union animus as revealed in the 8(a)(1) viola-
tions previously found herein, as well as its expressed
strong opposition to the Union, I am persuaded, and I
find, that the Respondent through Bennett and Chism
did more strictly enforce its rules against employees for
leaving their work areas without permission as a result of
the union campaign. M4 Accordingly, I credit that testi-
mony of employees Brown, Cunningham, Hill, Suggs,
and Ross to the effect that the Respondent more strictly
enforced its rules regarding employees leaving their
work station. It is clear, and I find, however, that the
Respondent did not formulate its rule against employees
leaving their work stations as a response to the union
campaign. But, by more strictly enforcing its rules, I find
that the Respondent interfered with its employees' Sec-
tion 7 rights and thereby violated Section 8(a)(1) of the
Act. See Pope Maintenance Corporation, 228 NLRB 326
(1977).
I also credit the testimony of Thompson and Rogers,
supported in this case by Ross whom I found particular-
ly credible, that they had previously been allowed to
smoke outside the "back door" when "caught up" or
when equipment was down. This was, I conclude, a
"new" restriction which must be viewed as being related
to the more strict enforcement of Respondent's rules
generally in response to the union campaign. By impos-
ing this restriction on its employees I find that the Re-
spondent further violated Section 8(a)(l) of the Act.
Since I have concluded that the Respondent unlawful-
ly imposed a new restriction on employees smoking
when "caught up" or when their machines were down,
and since Rogers' March 28 warning was based partly
upon this new restriction as well as a broader and more
strictly enforced rule about being away from his job
area, I find that the warning given Rogers was coercive
and violative of Section 8(a)(l) and (3) of the Act. Like-
wise, the warnings to Cunningham and Brown were also
based in part upon the more strictly enforced rule con-
cerning employees leaving their work stations without
permission. I find these reprimands also to be coercive
and violative of Section 8(a)(l) and (3) of the Act.
The warning issued to Suggs stands on a different
footing. Suggs' warning was not based upon any new
rules or even the enforcement of old rules.
14 In reaching his conclusion I find it unnecesar% to rely on the
purely statistical fact that the Respondent issued more sAarnings in the
several months after the union campaign started than before The Gener-
al Counsel's exhibits relative to the warnings given are inconclusive in
my opinion The reciord does nt shos the abhsence of merit of the warn-
ings issued or whether the particular rule or policy on Awhich the ,.arnirig
was based as not prei oulsy strictly enfiirced
Suggs' verbal warning of May 19 was related to her
"excessive absence from her job station." While the
record hows that Suggs disputed Bennett's claim that
she had been to the restroom five times on May 19 it
does not show exactly how many times in fact she had
been on that date. Even assuming that Bennett was inac-
curate in his claim that she had been to the restroom five
times, the record is insufficient to establish that Suggs'
use of the restroom had not been "excessive." Under
these circumstances, and in view of Suggs admittedly
calling Bennett a liar, I cannot find that warning given
Suggs was so ill-founded as t, x arrant a conclusion that
it was pretextual and based uipon unlawful motivation.
Moreover, since the warning was not related to a specif-
ic rule of the Employer, I do not find that the warning
given Suggs was related to a stricter enforcement of its
rules generally. Accordingly, I find no violation of Sec-
tion 8(a)(1) or (3) of the Act with respect to the warning
issued to Suggs.
The complaint allegation that the Respondent in-
creased production quotas is based solely upon the un-
corroborated testimony of employee Thompson that
Chism told employees they had to "do" 250 panels a
night. Thompson's testimony did not establish, however,
that there was any increase in work as a result of the
"250 panel" quota. Surely if there had been an imposition
of a quota system for the first time the General Counsel
would have produced corroborating evidence to estab-
lish it. In the absence of any corroboration of Thomp-
son's testimony in this regard, and since it does not
appear that any actual increase in workload was im-
posed, I find Chism's testimony to the effect that the
production goals had always remained the same more
convincing. Moreover, her explanation that the changes
in the goals for each shift was related to the switch from
an 8-hour to a 10-hour shift was plausible and not rebut-
ted by Thompson or any other General Counsel witness.
I therefore find that the record is insufficient to establish
a violation of the Act either in the imposition of a quota
system or in any increase in production quotas.
5. The installation and use of a timeclock
Employee Ross testified that, while the Respondent
had utilized an employee timeclock in previous years, it
had abandoned the use of a timeclock for about a year
prior to March 1979. Thereafter, the Respondent in-
stalled a timeclock and required employees to punch in
and out and, following the election, imposed the addi-
tional requirement that they also punch in and out for
lunch. James Thompson corroborated Ross except his
testimony indicated that the employees did not start
punching a timeclock until the week after the election.
The complaint alleges and the General Counsel con-
tends that the installation of the timeclock and the re-
quirement that the employees punch in and out was but
additional steps in the Respondent's "crack down" on its
employees because of their union activities.
The Respondent's position on the timeclock was relat-
ed in the testimony of Plant Manager Schommer.
Schommer admitted that the Respondent had installed a
new timeclock as a result of trouble encountered in the
WEYERIIAtFSFiR COMPAN 8
584 DECISIONS ()1: NATI()NAL LABO()R REI.AII()NS I()ARI)
abuse of a system under which the supervisors had kept
employee time subsequent to May 1, 1978. Schommer
found that a supervisor in collaboration with some of the
employees was turning in more worktime for the em-
ployees than actually worked. Upon discovering this in
December 1978, the supervisor was fired and the em-
ployees given warnings."5 Subsequently, in the latter
part of the following January, the employees in group
meetings with Schommer expressed a desire to return to
the use of the timeclock. Based on this expression
Schommer in February asked his secretary to get bids
for a new timeclock installation. 16 Still according to
Schommer, the purchase rder for the clock issued in
March and the clock was actually installed on April 24.
On April 26 the employees at a meeting called by
Schommer were asked if they wanted to use a timeclock.
They voted affirmatively to reinstate use of the time-
clock. 7 On May 11, following the election, the Re-
spondent posted a notice stating, inter alia, that "in ac-
cordance with the wishes of the majority of the people
in the plant we will resume punching the timeclock on
Monday, May 14."
Schommer's testimony regarding installation of the ti-
meclock and the meetings with employees concerning
the installation of the clock was not rebutted by any of
the General Counsel's witnesses. I therefore credit it.
Because the installation and the required utilization of
the timeclock were based upon the desires of the em-
ployees initially expressed prior to the union campaign
and confirmed in the April vote I cannot conclude that it
was responsive to, or related to, the employees' union
activities. Since the employees in fact approved the use
of the clock by vote, its installation could hardly have
been an act of retaliation against them as the General
Counsel contends, whether or not they were required to
punch in and out during lunchtime. Accordingly, I find
no violation of the Act in the Respondent's installation
or use of the timeclock.
6. Additional warnings issued to employees
The consolidated complaint as amended alleges that
the Respondent in keeping with its policy of tightening
down on employees in response to the union campaign
discriminatorily issued warnings to employees that were
unrelated to the work rules already noted above. In this
regard it is alleged that the Respondent discriminatorily
issued a warning to employee Elbert Smith on March 23.
In support of this allegation Smith testified that he had
been an active union supporter and had worn a union
button from the time the union campaign started until
after the election. On March 23 Smith, who operated a
' According to Schommer's unrebutted testimony in this regard, the
employees warned included Ross and Thompson
t Following discontinuance of its use of a timeclock for clocking em-
ployees in and out the Respondent had swapped its old timeclock o an-
other warehouse or plant for a clock which was utilized only for its
buzzer system and which was incapable of recording employee time.
'7 Schommer testified without contradiction that it was not extraordi-
nary for the Respondent to allow its employees to vote on such matters.
'" I Find that portion of Ross' testimony that employees began to
punch the timeclock in March is in clear error The Respondent would
have had no reason to post its May 11 notice if the employees were al-
ready required to utilize the timeclock.
sanding machine, observed Supervisor Bennett talking to
Linda Ross at her inspection station and decided to ap-
proach the two to see if anything was wrong.t9 As he
approached Bennett, Bennett asked Smith what his prob-
lem was and if Bennett could help Smith. Smith replied
negatively, adding that he had only come down there to
see if there was a defect in the boards and whether it
was due to his operation of his machine. Bennett replied,
in Smith's words, "he didn't like the way I was talking
or something, you know." Smith in turn responded that
"I didn't like the way he was talking because I was
doing what I usually do to see if there was a defect in
the board and could I do anything to help it." Bennett
told Smith to get back to his work and stated he would
talk to him later. An hour later Smith was called to
Sayers' office where Sayers told him in Bennett's pres-
ence "due to the fact that the union is trying to come in,
and we're having a lot of complications with our ma-
chinery, everybody seem to be somewhat uneased."
Sayers added that he had a warning for Smith but the
warning was not any reflection or anything personal be-
tween Sayers and himself. Sayers said that it was rather
a problem between Bennett and Smith.
While Smith testified that he received a written warn-
ing he was unable to identify that warning or specifically
state the wording of it. 2 0 While Ross was apparently a
witness to the encounter between Bennett and Smith,
and although called as a witness by the General Counsel,
she did not testify concerning that encounter.
Bennett, on the other hand, testified that he was dis-
cussing a particular defect with some panels that had
come from the sander when Smith walked up. Bennett
inquired what Smith wanted and Smith said that he was
not saying anything to Bennett so Bennett should not say
anything to him. At that point Bennett was some 40 feet
away from his work station. Bennett related that other
words were exchanged, and Smith accused Bennett of
"trying to mess with me" and "acting like uncle Tom."
Because other employees in the vicinity had stopped
working and were looking, Bennett told Smith that they
would discuss the matter later. Subsequently, on the
same day, he issued a warning to Smith for insubordina-
tion.
I find the record inadequate to establish the violation
alleged on the warning issued to Smith. Smith's testimo-
ny is too vague to establish the absence of a basis for is-
suing the warning to Smith for insubordination. The
record does not establish that the warning was related to
the violation of any specific rule or to a "crack down"
generally. Rather, it appears, as Sayers' comment reflect-
ed, a personal matter between Bennett and Smith. In any
event Smith was an improbable target for discrimination
for his only union activity was the wearing of a union
button which served to distinguish him very little from a
number of other employees who also were union buttons
in the plant.
' Ross inspected boards run through Smith's machine and he testified
that he occasionally went down there to ensure that there were no prob-
lems with his production.
2<) Neither the warning note itself nor the language of it was put in
evidence by either the General Counsel or the Respondent
WFYFRHAUESER CMPANY 585
The consolidated complaint as amended at the hearing
alleged that Ross was issued an unlawful verbal warning
on May 22. The warning was based upon an inspection
of panels which Ross as an inspector had admittedly
passed and which contained 35 off-grade panels out of a
total of 49. It was Ross' testimony however that on May
17 Bennett, in the presence of Supervisor-Trainee Frank
Connelly, instructed Ross to pass some of the panels that
were not up to specification because work had been
"piling up." Ross stated that she would do as instructed
notwithstanding the fact that she did not have Bennett's
signature on any instructions in this regard. Subsequent-
ly, on May 22 she was called to Bennett's office. On the
way to Bennett's office Connelly advised her that the
problem was regarding a load of wood that Brenda
Chism had inspected and which Ross had earlier passed.
Connelly further told Ross that Bennett did not want to
call her in but he had no choice because Sayers had told
him earlier to issue a warning to Ross although Bennett
had kept putting it off.2'
In Bennett's office Bennett advised Ross that he was
going to give her a warning for some panels that Chism
had gone through. Bennett allowed Ross to look at the
inspection sheet Chism had used. Ross ascertained from
it that it was based on the material that Bennett had ear-
lier told Ross to pass. Ross protested that it was the load
that Bennett told her to pass and he replied, "Well I
have to give you this warning." In the conversation Ben-
nett did not deny that he had given Ross instructions to
pass the material but refused to tell Sayers that it had
been done pursuant to his instructions. Moreover, ac-
cording to Ross, Bennett told Ross that he did not know
what Chism was trying to do, that he knew this was all
"political," that it was playing with people's jobs, and
that he really did not go along with it. Nevertheless, he
still refused to tell Sayers Ross had passed the material
with his instructions. However, he did tell Ross that he
would advise Sayers that the material that Ross passed
was "marginal."
Bennett in his testimony denied he had instructed Ross
to pass all the panels in dispute. Rather, according to
Bennett, he had told Ross to allow only I or 2 defective
panels in a load of 40. He did not, however, specifically
contradict the other comments attributed to him by Ross
during the time that he issued the warning to her.
I credit Ross' testimony where it contradicts Bennett
regarding this warning. I conclude, based on Ross' testi-
mony, that the verbal warning issued to her was com-
pletely without foundation in view of Bennett's instruc-
tions to her. Considering issuance of the warning in light
of Ross' known union support and sympathies and the
Respondent's admitted and vigorous opposition to the
Union as demonstrated by its unlawful actions already
found above, I can only conclude that the warning
issued to Ross was pretextual in nature and designed to
cloak an unlawful discriminatory motive; i.e., Ross'
union support. Schommer's earlier warning to Ross that
he did not believe that Ross would be able to endure the
union campaign, coupled with Bennett's undenied refer-
'' Connell'\s remarks. thicle hea;lra, crc reccied in idencle itl-
out objection Hls staltus l a sulpcrr r iand ;genlt of the mplo ) r \; a
not litigated at the hearing
ence to the warning being "political." makes extremely
clear the discrimination against Ross. Accordingly, I
conclude that the Respondent violated Section 8(a)( I)
and (3) of the Act in issuing the verbal warning to Ross.
7. The warning to, and suspension of, James Rogers
There is little dispute concerning the warning issued to
James Rogers on April 5 and the suspension of Rogers
on April 6 for I day as a result thereof, both of which
actions are alleged by the General Counsel to constitute
violations of Section 8(a)(l) and (3) of the Act. Rogers,
as has already been noted, was a union supporter whose
union support was reflected by his wearing of a union
button. On April 5 Rogers at the conclusion of the after-
noon employee break was having difficulty securing the
merchandise or the return of his money from a soup
vending machine. With the help of another employee he
was able to get his money back but then, although after
the conclusion of breaktime, he reinserted it, obtained
the merchandise, and ran back to his work station past
the office of Sayers. Sayers came out to observe Rogers
return to his work station and watched him consume the
food he had obtained. Later that afternoon Rogers was
called in Sayers' office where, in the presence of Ben-
nett, Sayers asked Rogers why he had food at his work
station. Rogers replied that he had not had any problem
with having food at his work station before. Sayers
asked him why he was late going back after his break
and Rogers answered he was only 2 or 3 minutes late
and he had never had any problem before being a few
minutes late. Nevertheless, Rogers was issued a warning
for violation of the Respondent's rules having to do with
"neglect of duty" and failing to "work as directed," and
was suspended for I day. He was returned to work on
April 9 with an admonition from Schommer to "stay out
of trouble."
Rogers testified that he had not previously heard of
employees having received warnings for eating at their
work stations. However, on cross-examination he con-
ceded that Sayers had told him at the time of the issu-
ance of the warning that another employee had been sus-
pended for eating on company time. Rogers testified he
had previously, with the knowledge of unnamed supervi-
sors, eaten from his sack lunch at his work station during
worktime. Further, he claimed that the week following
his suspension he had seen Bennett eating in the work
area. He did not specify, however, whether Bennett was
eating on worktime nor did he identify the specific loca-
tion where Bennett was observed. 22
Sayers' testimony and the contents of Rogers' written
warning itself2` are generally consistent with Rogers'
version of what happened. However, the warning indi-
cated that Rogers was 5 minutes late returning from
break as checked against the timeclock by Sayers.
The General Counsel argues that the warning and sus-
pension issued to Rogers was but another incident of the
Respondent's "crack down" on enforcement of its em-
ployee rules. The Respondent on the contrary contends
:' B23einnet i tets Iit II delit.' d ilrg in ;lten in the s% ork arca dilriIg
t orkinie
2 ((' tixI 1(I
WFYFRHAUESER COMPANY ?5
586 I) tISIONS ()F NATI()NAI. LAB()OR RELATI)NS BO()ARI)
that its action with respect to Rogers was consistent with
its earlier warning and suspension given to employee
Robert Warren long prior to the union campaign.
An examination of the warning issued to Warren on
July 14, 1978,24 reveals that more than an employee's
eating at his work station was involved. In brief, Warren
was eating and refused to stop and go to work as direct-
ed by his supervisor. Nevertheless, the incident with
Warren does tend to substantiate a concern by the Re-
spondent about eating in work areas during worktime.
Moreover, Rogers' warning like Warren's involved more
than eating at his work station on worktime. The warn-
ing was precipitated in part by Rogers' obviously delib-
erate late return to work following the break occasioned
by his decision to proceed with his snack even after the
conclusion of the break and after he had already secured
the return of his money from the vending machine. I find
unconvincing as too broad an exaggeration that portion
of Rogers' testimony, uncorroborated in this regard, that
"we always, you know, be late a few minutes" returning
to work stations after breaks. Under these circumstances,
I am not persuaded that the evidence supports a conclu-
sion that the warning and suspension issued to Rogers in
this instance was related to any "crack down" on em-
ployees as a result of the union campaign although I
have previously found that there was in fact a "crack
down" in certain respects. Such a "crack down" does
not require a conclusion that every warning issued subse-
quent to the crackdown was responsive to the union
campaign. Indeed, the General Counsel's numerous ex-
hibits tend to establish that the Respondent issued a sub-
stantial number of warnings long prior to the union cam-
paign and kept rather extensive notes on the misconduct
of its employees. In respect to Rogers' warning and sus-
pension, however, the evidence in my opinion does not
establish that he would not have been warned and sus-
pended but for the Union's campaign or his involvement
in it. I therefore find no violation of Section 8(a)(1) and
(3) with respect to Rogers' warning and suspension.
8. The suspension of Curtis Golden
Curtis Golden had been employed by the Respondent
for over 3 years and worked as a forklift driver. His
union sympathies were revealed by his wearing of a
union button in the plant beginning about a month after
the campaign started. Golden testified that, on June 8,
while eating his lunch with other employees including
Fred Govain, Richard Brown, and Richard Brooks, he
had remarked to Govain in reference to certain trips
Govain had made to the restroom and to the Respond-
ent's office that if Govain went down there to "tell
around on me" he was going to try to break Govain's
back. According to Golden, he made the remark in a
joking manner and Govain laughed about the remark as
did everybody else present.
Apparently, however, Govain upon reflection did not
take the matter lightly and complained to Bennett fol-
lowing lunch. Bennett reported the matter to Sayers and
Golden was called in Sayers' office where he was ad-
vised that Govain had claimed he had threatened him
'2 Rc'p Ixh I h
and was very upset about what had happened. Sayers
asked Golden some questions but ultimately told Golden
that he could not really talk to him because Plant Man-
ager Schommer was out of town and he directed Golden
to go on home and they would call him the following
Monday. However, when Golden contacted the Compa-
ny on Monday, he was told that Govain had not re-
turned to work and there had been no opportunity to
talk to him and therefore Golden should come in the
next morning. When Golden went in the next morning
he waited until Govain had been interviewed by Schom-
mer and then he talked to Schommer. After talking to
Schommer explaining that he had been joking with
Govain, Schommer put him back to work with the ad-
monition to "be real careful about what I'm doing out
there, and if I could, don't go around Fred at all--don't
even go in the area." Schommer added, according to
Golden, that "a lot peoples around here are taking horse-
play serious, and for me to be more alert and be careful."
Schommer's testimony regarding the suspension of
Golden did not differ significantly from Golden's.
Schommer related that he had been out of the city on
June 8 and found Golden's file on his desk when he had
returned the following Monday. Schommer said he
talked to Golden on that Monday when he came in and
Golden had explained although he had made a remark to
Govain about "busting his head" it was a joking matter.
However, because Govain had not come to work that
Monday Schommer sent Golden home so that he could
have an opportunity to interview Govain and certain
other witnesses identified by Golden. Schommer did in-
terview the other witnesses and they in effect confirmed
that Golden's remarks to Govain had not been serious
and that it was a kind of "horseplay" that they some-
times engaged in. Interviewing Govain on the following
morning Govain had still expressed concern that Golden
might "come up behind him" at work. Schommer sent
Govain back to work and talked to Golden, telling him
that Govain was concerned but that the employees who
wvitnessed the matter indicated that it was "horseplay"
and therefore he was returning Golden to work. Howev-
er, he told Golden that because of the incident, should
anything happen to Govain, Golden was in a precarious
position of being a prime suspect. It was Schommer's
recollection that Golden was paid for the day of work
he had missed on June II because Schommer had been
unable to interview Govain through no fault of Golden.
While Govain did not testify, in view of Golden's ad-
mission that he had made threatening remarks to Govain
there is little to support the contention that the Respond-
ent's actions with respect to Golden were taken unlaw-
fully. It would not be totally unreasonable for Govain,
who was 65 years old compared to Golden's age of 31,
to be apprehensive about Golden's remark even though
it might have been delivered in a joking matter. And.
there was no evidence that the Respondent solicited any
complaints from Govain in this regard. Once the com-
plaint was made by Govain it was clearly prudent for
Schommer to investigate the matter And the action
taken following the investigation w\as clearly reasonable.
WFYFRHAUH~ FSFR COMPANY
The General Counsel appears to attach a sinister sig-
nificance to the fact that Govain was not punished for
his involvement in this matter. However, that ignores the
fact that no specific misconduct was attributed to
Govain.
Considering the foregoing, and the record as a whole,
I find that the General Counsel has not established by a
preponderance of evidence that the Respondent in any
way violated the Act in the suspension of Golden.2'
9. The suspensions of Brown, Miller, Stevenson,
and Hill
Roy Miller, Roy Lee Brown. and l.avcrne Stevenson
were employed by the Respondent on its second shift.
Plant Manager Schommer acknowledged in his testimo-
ny that Miller and Brown were, to his knowledge, union
supporters. The record does not establish, however, that
Stevenson, who did not testify, was also a union adher-
ent.
In any event, all three employees worked together on
the glue spreader with Miller pushing the plywood cores
through the spreader where a glue is placed on the core
with the other two employees catching the finished panel
as it came out of the spreader and applying a plywood
veneer.
On May 17 when he reported to work Miller was
called into Plant Manager Schommer's office where
Schommer showed him a picture of a piece of plywood
with a steel packing band extruding through the veneer
of the panel. Schommer told Miller that the panel had
been run on the second shift and so either he, Brown, or
Stevenson had to have done it. Miller testified on cross-
examination that the steel band could only have been
placed in the board intentionally and could not have
been done without the knowledge of all three operators.
He told Schommer at the time that he did not put the
band in the panel and he did not see the other two men
put it in. Schommer then sent Miller back to work but
subsequently recalled him and asked him to sign a paper
stating that either Stevenson or Brown had put the strap
in the panel. Miller refused to do so. Schommer then
told him he would have to do Miller like he had done
Brown and Stevenson and send him home, adding that
he would have to look into the matter further because
somebody would have to be discharged for it. Schommer
directed Miller to return to work the following Tuesday,
May 22.
When Miller returned to work he talked to Schommer
who told him that some day-shift employees had told
Schommer that they had observed the panel with the
steel band in it on the day shift at the time when the
panel was "hot," indicating that the panel had just been
run on the day shift. Schommer then directed Miller to
return to work. 2 6
2S While not specifically alleged in the complaint the General Counsel
introduced in evidence arnings issued to Golden after the union elec-
lion. G C Exhs 14 19, and one prior to the union campaign. (i C Exh
13. to ho,A "disparit generally" in the Respondent's enforcemenl f its
policies against union adherents Yet the merits of these wvarnings were
neither litigated nor were they argued in the General Counsel's brief Ac-
cordingly. I make no findings thereon
26 rosn was suspended at the same time Miller as Although called
as a itnesses bh the General ('ounsel he did not estiff regarding the
Schommer's testimony was substantially in accord
with that of Miller regarding this incident. Schommer
testified that the panel had been discovered by the qual-
ity control supervisor, Deena Steward, who brought it to
Schommer's attention. The steel band in the plywood
panel represented a significant danger during some of the
steps in the production process such as sanding and
sawing. From production records, according to Schom-
mer, and the production ticket that accompanies each
load of panels worked it was ascertained that the panel
with the steel hand in it had been produced on the
second shift. Schommer thereafter took the matter up
with the three second-shift employees, Miller, Stevenson,
and Brown. and they each denied any knowledge of. or
involvement in, production of the faulty panel. Schom-
mer therefore suspended them until he investigated the
situation further. He thereafter talked to the day-shift
crew and they also denied involvement. However, after
the suspensions, following further investigation Schom-
mer concluded that there was a remote possibility that
production tickets could have been switched. Moreover.
he was advised that Sylvester Hill on the day shift. a
glue spreader, might have done it intentionally to get at
Laverne Stevenson due to some animosity that existed
between them. 2 ' Accordingly, Schommer returned the
three night-shift employees to work and there were no
discharges.
Sylvester Hill was a day-shift employee on the glue
spreader. He testified for the General Counsel that he
also was called in with the other glue spreaders on the
day shift and individually questioned about the band in
the panel. When he was interviewed by Sayers and
Schommer, Sayers related that they had a witness that
said that Hill had pressed the band into the board. Hill
denied it and words were exchanged with Sayers using
some curse words, according to Hill. Hill testified that
he "got carried away" and "wanted to give some of my
part" but was told to shut up or "carry your God-damn
ass home." Nevertheless, Hill kept talking. As he ex-
plained on cross-examination, he kept talking "to show
him I was a man." He was told to shut up and get out
and get off the premises and even escorted off the prem-
ises. Hill was thereafter suspended for a period until May
29 when he was reinstated.
Schommer in his testimony did not specifically contra-
dict Hill's testimony in any respect. According to
Schommer the conversation with Hill took place on May
25 in his continuing investigation of the plywood panel
with a steel band in it. Hill began to talk and just would
not be quiet and listen when directed to do so. He was
thereupon sent home, missing the remainder of that
workday and the holiday pay the following Monday. He
was returned to work on May 29.
What is clear from all of the foregoing, including the
testimony of the General Counsel's witnesses, is that a
plywood panel had been sabotaged with a steel band.
The witnesses agree that the presence of the steel band
suspension een though the sulsper llilon l a alleged to hace been dlscrinil-
natory
': Hill and Stevenson 'ere later discharged in erls ()ctober a a
result of a fight on company premises in hich Hill was stabbed
5 s7
588 DECISIONS ()F NATIONAL L.ABOR RELATIONS O()ARD
in the board could not have been accidental. Because of
the hazard to equipment and personnel had the panel
been processed further with the steel band unnoticed, the
insertion of the band in the board must be regarded as an
extremely serious matter. The Respondent's investigation
of the matter was clearly warranted. Because of early in-
dications that the panel had been manufactured on the
second shift and since it is unlikely it could have been
manufactured without all the spreader operators on the
second shift knowing about it, it was not illogical to sus-
pend them pending further investigations. Since the Re-
spondent was unable to ascertain which individual was
responsible for the damaged panel I can see no basis for
concluding that the suspensions were in any way pretex-
tual notwithstanding the fact that at least two of the
three people suspended were union supporters. In view
of the seriousness of the matter, and if the Respondent
had been discriminatorily motivated, it is more likely that
it would have discharged the three rather than simply
suspending them. Moreover, if the matter of the steel
band was simply a ruse to suspend the three second-shift
employees it is improbable that the Respondent would
have continued the investigation following their return
to work, although it is quite clear it did in interviewing
Hill on May 25. Accordingly, I conclude that the Re-
spondent was not discriminatorily motivated in suspend-
ing Miller, Brown, and Stevenson in violation of Section
8(a)(1) and (3) of the Act.
With respect to Hill's suspension, Hill's admission that
he kept talking in order to "show he was a man" in the
face of demands that he "shut up" essentially destroys
any basis or finding that the suspension was pretextual
and discriminatorily motivated. Here too had the Re-
spondent been discriminatorily motivated it would have
been more likely Hill would have been discharged rather
than suspended. Under the circumstances, Hill's suspen-
sion of 1 day and a portion of another appears to have
been a rather restrained response on the Respondent's
part to Hill's May 25 conduct. Accordingly, I conclude
that the suspension of Hill did not constitute a violation
of Section 8(a)(l) of the Act.
10. The discharge of James Thompson
James Thompson was employed by the Respondent
for a period of approximately 7 years prior to his dis-
charge on May 29 following an indefinite suspension be-
ginning May 21 growing out of his allegedly reporting
for work on May 19 and working while under the influ-
ence of alcohol. At the time of his discharge he was em-
ployed in the rework department under Supervisor
Brenda Chism. The fact that Thompson had supported
the Union and had worn a union button in the plant has
already been noted above.
Thompson testified that after leaving work at midnight
on May 18 he attended a graduation party for his daugh-
ter at a cafe. He had one alcoholic drink and left to go
home around 3 a.m. The following morning he arose at 9
a.m. and went back to clean up the cafe and in gathering
up the beer bottles and whiskey bottles carrying them
out in a garbage can he spilled "a great deal of alcohol
on my clothes." He finished his work at the cafe at 11:30
a.m. but reported for work at the Respondent's plant 30
minutes late for the noon shift on May 19. He reported
to Chism that he was late and then proceeded to his
work station where he worked running the side cut saw.
After he had worked 30 minutes he injured his hand in a
"stacker" and reported his injury to Chism who put rub-
bing alcohol on it and he returned to work. Shortly
thereafter Chism and Maintenance Supervisor Jim Strat-
ton came out and watched him work for 10 to 15 min-
utes. Stratton then approached him and told him that he
was going to have to leave the premises because he was
not steady enough on his feet to work. Thompson was
sent home and told to return on Monday to see Schom-
mer. When Thompson came to the plant on May 21 he
was told by Schommer that he had "been drinking on
the job and he was going to have to give me a 5-day
layoff." On May 29 Thompson was called to the Re-
spondent's plant and told by Schommer that he had in-
vestigated Thompson's case and had found from a
"couple of employees" that Thompson was drunk on the
job and he had to dismiss him.
Schommer's testimony was that. when he first inter-
viewed Thompson on May 21, Thompson had admitted
that he had consumed alcoholic beverages excessively
the preceding Saturday morning, had overslept, and had
come in late. Schommer said he indefinitely suspended
Thompson and thereafter conducted an investigation of
the matter speaking to a number of employees and Su-
pervisors Stratton and Chism. He concluded that
Thompson indeed had been under the influence of alco-
hol while at work the preceding Saturday. On May 29
he called Thompson back to the plant and on that occa-
sion allowed Thompson to again explain the circum-
stances. On this occasion Thompson related a story more
in line with that related at the hearing herein. In view of
what he perceived to be conflicting stories from Thomp-
son, and because of the statements from other employees
indicating that Thompson had been working under the
influence of alcohol on May 19, Schommer discharged
Thompson. '8
Both Chism and Stratton testified that after they had
watched Thompson on May 19 following his hand injury
they had concluded that he was not fully able to handle
his job. According to Stratton, Thompson was so intoxi-
cated he hardly knew where he was.
I find basically incredible Thompson's testimony re-
garding the extent of his drinking on May 19 and the
state of his sobriety at the time he undertook his work
schedule on that date. The fact that he hurt his hand for
the first time in machinery which he had operated for
several years tends to support the conclusion that he was
not in complete control of his normal reflexes on that
date. Moreover, I find Stratton to be a credible and con-
vincing witness regarding Thompson's condition. Strat-
ton, a former sheriffs deputy, testified he had 4 years'
experience in recognizing and arresting a substantial
number of persons in various stages of inebriation. Ac-
cordingly, I find that a sound basis existed for conclud-
GC t'xh. 103 hich cnlltinl excerplt, from l hollp.orln persrnnel
file illCILdcd staemlc nt, frorml threc cphnplor cc' dalcd Ma-., 22. 1979. ub-
stilllilating a conclusiorl on hce Rpolndcllnt' part hal I honlpsonll wa in
fact inebriated at work on Ma Il
0
%VFNT1Rl-lALJFSFR COMPANYN~ 589
ing that Thompson 'was under the influence of intoxi-
cants, and, as a result. his being sent home was an act of
wise discretion, as was the subsequent decision to sus-
pend him pending an investigation.
While the General Counsel does not specifically argue,
and the complaint does not allege, Thompson's suspen-
sion to have been discriminatorily motivated, he never-
theless contends that Thompson's May 29 discharge ,was
motivated by union considerations as reflected by alleged
disparate treatment accorded by the Respondent to
Thompson in comparison to other employees in similar
situations.
Thus, the General Counsel points to the case of two
employees gleaned from the Respondent's records who
were warned at least once for reporting to work "under
the influence" without being discharged.29 However.
Schommer in his testimony credibly explained that these
warnings occurred prior to May 1, 1978, when the Re-
spondent stiffened its rules to make reporting for work
under the influence a dischargeable offense on the first
occasion.
There were two incidents of employees receiving
warnings for reporting to work under the influence of al-
cohol without being discharged after the Respondent's
rules had been stiffened. One, according to Schommer's
uncontradicted testimony, involved an employee who,
having been given prior permission to be away from
work, had nevertheless shown up at the plant "under the
influence." The employee, who was not scheduled to
work, was given a warning.3 Another employee had re-
ported for work apparently under the influence of intoxi-
cants but had been retained by a supervisor in the lunch-
room and kept under observation for an hour and a half.
He was then warned and sent home without ever having
reported to his work station. 3 ' Moreover, Schommer
testified that there was a real question with respect to
whether or not the employee had actually been "under
the influence."
The General Counsel also finds evidence of disparate
treatment of Thompson in the treatment of Roy Miller
who on June 22, subsequent to Thompson's discharge,
was simply given a warning for reporting to work after
having consumed alcoholic beverages. 32 This overlooks
the distinction, however, that Miller was not alleged to
have been "under the influence."
Schommer conceded that he had some discretion in
the Respondent's rules in determining whether or not to
discharge a first offender for reporting to work under
the influence of intoxicants. However, he added that he
viewed an employee's actual assumption of work while
inebriated, as in Thompson's case, as a more serious of-
fense for obvious safety reasons than simply reporting to
the plant inebriated or after having had a "couple of
beers." The record does not contradict Schommer's posi-
tion in this regard, since there is no evidence that any
other employee, following the stiffening of Respondent's
rules with respect to working under the influence, at-
2 G.C Exh, 2t, and 27
an G.C Eh 2S
: GC Eh 25
:2 G.C Eh 31
tempted to work or assumed their work in an inebriated
condition and was not discharged.
On the other hand, and consistent with the Respond-
ent's position, another employee, Leonard Fletcher, was
discharged on June 16 under circumstances very similar
to Thompson's. :' Fletcher had been employed by the
Respondent for more than 3 years.
Considering the foregoing evidence and the record as
a whole, I am not persuaded that the evidence establishes
disparate treatment of Thompson. Although Schommer
used discretion to effectuate the discharge, the total cir-
cumstances do not reflect that that discretion was uti-
lized discriminatorily. That discretion was exercised in
the same manner in Fletcher's discharge and there is no
evidence, nor was there any argument, that Fletcher was
discharged only in order to maintain the appearance of
legality in Thompson's discharge. Moreover, even assum-
ing some disparity in connection with Thompson's dis-
charge, there is no evidence that would connect that dis-
charge with his union activity which was in fact mini-
mal. Had the Respondent been inclined to discharge
Thompson because of his union sympathies it is not
likely that Schommer would have gone through the
trouble of interviewing employees regarding Thompson's
intoxication rather than simply relying upon the conclu-
sions of Supervisors Chism and Stratton. Accordingly, I
conclude that the Respondent did not violate Section
8(a)(1) and (3) of the Act in the discharge of Thompson.
CONCI USIONS OF LAW
1. The Respondent, Weyerhaeuser Company, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Highway and Local Motor Freight Employees.
Local 667, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America. is a labor organization within the meaning of
Section 2(5) of the Act.
3. By coercively interrogating its employees, by im-
pliedly threatening its employees with discharge because
of their union activities, by soliciting from employees
grievances under circumstances implying the grievances
would be rectified, by implying to employees that their
selection of a union to represent them would be futile, by
requesting employees to campaign among other employ-
ees against the Union, by suggesting or encouraging em-
ployees to form or serve on a committee or a group to
discuss grievances with management as an alternative to
having a union represent them, by admonishing employ-
ees not to give other employees advice concerning union
or protected concerted activities, and by more stringent-
ly enforcing its work rules in response to the Union's
campaign the Respondent has interfered with, restrained,
and coerced employees in the exercise of the rights guar-
anteed in Section 7 of the Act in violation of Section
8(a)(l) of the Act.
4. By changing its work practices and by issuing warn-
ings to Linda Ross on May 22, to James Rogers on
March 28, to Lula Cunningham on March 22, and to
:':' C E h 32. Rsp Exh 6
WEYFRIIALIESR COMPANY g
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roy Brown on May 16 in connection with its more strin-
gent enforcement of its rules in response to the Union's
campaign the Respondent violated Section 8(a)(3) and (1)
of the Act.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not violate Section 8(a)(l) and
(3) of the Act in the suspensions of James Rogers, Roy
Lee Brown, Roy Miller, Laverne Stevenson, Sylvester
Hill, and Curtis Golden or in the discharge of James
Thompson, nor did it violate the Act in warnings issued
to Kay Suggs or Elbert Smith.
7. The General Counsel has not established by prepon-
derance of evidence that the Respondent has violated the
Act as alleged in the complaint except to the extent
found above.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices I shall recommend that it cease
and desist therefrom and that it take certain affirmative
action necessary to remedy the unfair labor practices and
to effectuate the policies of the Act to include the usual
posting of appropriate notices to the employees. Since I
have found that the warnings issued to Linda Ross,
James Rogers, Lula Cunningham, and Roy Brown were
a result of changes in work practices or more strict en-
forcement of certain of its rules in retaliation to the em-
ployees' union activities, I shall recommend that the Re-
spondent revoke and rescind such warnings and physical-
ly expunge them from their personnel records.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3 4
The Respondent, Weyerhaeuser Company, West Mem-
phis, Arkansas, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees about their
union sympathies and desires.
(b) Impliedly threatening its employees with discharge
for engaging in union activities.
(c) Soliciting from individual employees grievances
and impliedly promising to rectify them in order to dis-
courage their union activity.
(d) Implying to employees that their selection of a
union would be futile.
34 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, 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.
(e) Requesting employees to campaign against the
Union among other employees.
(f) Suggesting to and encouraging employees to form
or serve on a committee or group to discuss grievances
with management as an alternative to having a union
represent them.
(g) More stringently enforcing its rules against em-
ployees or changing work practices in order to discour-
age their union activities.
(h) Admonishing its employees not to give each other
advice regarding the Union or protected concerted activ-
ities.
(i) Issuing verbal and written warnings to its employ-
ees in connection with a more strict application of its
rules in response to the union activities of its employees.
(j) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
Highway and Local Motor Freight Employees, Local
667, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, to bargain collec-
tively through representatives of their own choosing; and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection
or to refrain from any or all such activities.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Revoke and rescind the warnings issued to Linda
Ross, James Rogers, Lula Mae Cunningham, and Roy
Lee Brown and physically expunge from their respective
personnel files any record of such warnings.
(b) Post at its West Memphis, Arkansas, plant copies
of the attached notice marked "Appendix." 3 s Copies of
said notice, on forms provided by the Regional Director
for Region 26, after being duly signed by a representa-
tive of the Respondent, shall be posted by the Respond-
ent immediately upon receipt thereof, and shall be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not specifically found.
35 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the ords in the notice reading "Posted by
Order of the National L.abor 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."