Materials Processing

National Labor Relations Board - Board Decisions

Oct 14, 1997

324 N.L.R.B. 719 (N.L.R.B. 1997)

719
324 NLRB No. 120
MATERIALS PROCESSING
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order to provide that
the Respondent remove any reference to the discipline from Reed’s
and Meltzer’s files as well as the files of Phipps and Montgomery.
We shall also modify the recommended Order in accordance with
our decision in Indian Hills Care Center, 321 NLRB 144 (1996).
Materials Processing, Inc. and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW),
AFL–CIO. Cases 7–CA–38157(1), 7–CA–38386,
7–CA–38448, and 7–CA–38454
October 14, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
On May 20, 1997, Administrative Law Judge James
L. Rose issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed a brief in response.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order as modified.
1. The Respondent excepts to the judge’s finding
that it violated Section 8(a)(1) of the Act by prohibit-
ing off-duty employees from distributing union lit-
erature on company property.
Plant Manager Sandor testified that a union agent
and two or three employees were handbilling on com-
pany property, that he approached the union agent and
told him he could not be on company property, and
that the union agent left with the employees. Sandor
testified that he did not direct the employees to leave.
Employee Burton testified, ‘‘Joe Sandor told me that
I had to leave the property because I wasn’t allowed
to’’ handbill on company property and that the union
agent was not on the company’s property.
The judge did not make a credibility finding because
he believed that a violation occurred whether he cred-
ited the General Counsel’s witness or the Respondent’s
witness. We agree with the judge.
Even if Plant Manager Sandor was credited, his own
testimony makes it clear that the union agent and the
employees were handbilling together when Sandor ap-
proached them. Thus, when Sandor addressed the
union agent he was in fact addressing the leader of a
group of people that was distributing union literature.
He did not specify, either to the union agent or the
employees, that he was only asking the union agent to
leave. Thus, even accepting Sandor’s account of the
handbilling incident, we agree with the judge that it
was reasonable for the employees to believe that
Sandor was also addressing them when he told the
union agent that he could not distribute union literature
on company property. Accordingly, we agree with the
judge that the Respondent violated Section 8(a)(1) by
denying access to off-duty employees who were engag-
ing in activity protected by Section 7 of the Act.
2. The Respondent excepts to the judge’s finding
that it violated Section 8(a)(3) of the Act by disciplin-
ing employees because of their union activities. We
agree with the judge.
Employees Phipps, Montgomery, Reed, and Meltzer
were members of the Union’s organizing committee.
Phipps, Reed, and Meltzer participated in the attempt
to present a petition favoring the Union to Sandor at
an employee meeting. Montgomery wore buttons, hats,
and shirts displaying his support for the Union on a
daily basis.
The Respondent does not dispute in its exceptions
that it was aware of the employees’ union activity, but
instead claims that they were disciplined for creating
unsanitary conditions in a room during the showing of
a videotape to employees. The judge, however, dis-
credited the Respondent’s testimony about the condi-
tion of the room after the employees left and credited
the employees’ testimony that there was not a signifi-
cant amount of litter left behind in the room.
Based on the judge’s credibility resolutions, we
agree with his conclusion that the Respondent grossly
exaggerated the condition of the room after the em-
ployees left as a pretext in order to discipline them be-
cause of their union activities.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mate-
rials Processing, Inc., Riverview, Michigan, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful
warnings given Lila Phipps, Mike Montgomery, Der-
rick Reed, and Dennis Meltzer on March 21, 1996, and
within 3 days thereafter notify them in writing that this
has been done and that the warnings will not be used
against them in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER HIGGINS, dissenting in part.
My colleagues would find a violation in this case
even if the testimony of Respondent’s agent Sandor is
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720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
credited. I would not do so. Instead, I would remand
this case for a credibility resolution to ascertain wheth-
er Sandor ordered the union agent only to leave the
Respondent’s property.
According to Sandor, he saw Union Agent White
and two or three employees handbilling on Respond-
ent’s property. Sandor ‘‘went up to Mr. White and . . .
told him that he cannot be on company property.’’
(Emphasis added.) Further, Sandor testified that he
gave ‘‘no direction . . . whatsoever to the ladies [the
employees].’’ To the contrary, it was White who
waved the employees to follow him off the property.
Finally, Sandor testified that he ‘‘never spoke to the
ladies.’’
If Sandor is credited, it is clear that he was asking
only the union agent to leave. Under Lechmere, Inc.
v. NLRB, 502 U.S. 527 (1992), he had a right to do
this. Accordingly, I would remand to ascertain whether
Sandor should be credited.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT create the impression that employees’
union activity is under surveillance.
WE WILL NOT prohibit employees from distributing
union literature in nonwork areas on nonworktime.
WE WILL NOT threaten employees with reprisals
should they engage in union activity.
WE WILL NOT deny off-duty employees access to
company premises without showing a necessity there-
for.
WE WILL NOT videotape employees engaged in
union or other protected activity.
WE WILL NOT grant wage increases or other benefits
in order to discourage employees from engaging in
union or other protected activity.
WE WILL NOT discipline employees because they
have engaged in union or other protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the warnings given Lila Phipps, Mike Montgomery,
Derrick Reed, and Dennis Meltzer on March 21, 1996,
and WE WILL, within 3 days thereafter notify them in
writing that this has been done and that the warnings
will not be used against them in any way.
MATERIALS PROCESSING, INC.
Richard Czubaj and John Ferrer, Esqs., for the General
Counsel.
Lawrence J. DeBrincat and Brian M. Smith, Esqs., of Troy,
Michigan, for the Respondent.
Betsey A. Engle, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Detroit Michigan, on March 3, 4, and
5, 1997, on the General Counsel’s complaint which alleged
generally that the Respondent committed certain violations of
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act).
The Respondent denied that it committed any violations of
the Act and affirmatively contends the four discharges in
issue were for cause and not due to any union activity.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Michigan corporation with a facility
at Riverview, Michigan, engaged in painting components for
automobiles. In the conduct of this business the Respondent
annually derives gross revenues in excess of $1 million and
annually ships from its Riverview facility goods valued in
excess of $50,000 to points outside the State of Michigan.
The Respondent admits, and I conclude that it is an employer
engaged in interstate commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL–
CIO (the Union) is admitted to be, and I find is, a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent’s Riverview facility is one of two it oper-
ates. The other is in Dearborn, Michigan, where the employ-
ees have been represented for purposes of collective bargain-
ing since 1983 by a local of the Teamsters Union.
The primary business at the Riverview facility is to re-
ceive, paint, and ship fuel tanks and axles. The tanks and
axles are moved to and from the assembly line by means of
forklifts. At the assembly line they are painted. The Re-
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721MATERIALS PROCESSING
1 All dates are in 1996, unless otherwise indicated.
2 Counsel for the General Counsel represented that there was a
delay in counting the the ballots, thus the tally of ballots shows the
date of the election to have been April 26.
3 The transcript at 401 erroneously refers to Cade as Kay. The
transcript is corrected.
4 There is no contention that the ‘‘Solicitation and Distribution
Rules’’ set forth in the company handbook are unlawful.
spondent apparently operates two shifts and by early 1996,1
its employee complement had recently increased from about
100 to 300. On December 28, 1995, Joseph Sandor was hired
as the Respondent’s plant manager.
In early February, the Union began an organizational cam-
paign. The first meeting was held on February 4. Certain em-
ployees signed as members of the Voluntary Organizing
Committee (VOC) and at a company meeting on February 12
attempted to present this petition to Sandor. He refused to
accept it and one of the employees read at least a portion
of it.
This meeting was apparently held at the end of the first
shift. Thus as employees left the premises they were met by
union organizers and they marched and passed out literature.
Presumably forewarned, the Respondent had video cameras
set up to record this event (claiming, infra, that there were
rumors there would be violence).
Subsequently, the Union filed a petition for an election, a
stipulation was agreed to, and an election held on April 18,2
which the Union won. From February 12 to the election, and
thereafter, the Respondent’s supervisors, including Sandor,
engaged in certain acts alleged violative of Section 8(a)(1).
Also four union supporters were discharged. These allega-
tions will be treated seriatim.
B. Analysis and Concluding Findings
1. The 8(a)(1) allegations
a. Allegations involving Rachel Moore
Rachel Moore has worked for the Respondent 8 years, and
has been a supervisor the past 4 years. One of her employees
is Stephanie Cade, who testified that Moore called her into
the office on February 6 and said, ‘‘I hear you guys had a
meeting,’’ and ‘‘Well, what were you talking about? Were
you talking about me? You trying to make me lose my job?’’
Cade said they were just trying to make things better for the
employees and then Moore said, ‘‘They got you pegged at
[sic] being the one that’s in charge of this. If you do have—
if you guys get a union, or if you get to talk to Emmett
(Windisch, one of the owners) you make sure that you’re,
you know, in control when you go in there. Don’t talk to
them like you talk to me.’’
Then the next day, according to Cade, she asked why
Moore was harassing her and Moore responded, ‘‘Because
you’re not suppose[d] to [be] talking union.’’ And, later in
Moore’s office, Moore said, ‘‘Listen, don’t be talking union
stuff. I’m trying to protect you, and I’m not going to protect
you any more in that.’’
Moore denied telling Cade ‘‘that she shouldn’t talk about
the union that (she) was protecting her.’’3 However, Moore
did not deny the substance of the February 6 discussion.
Since Cade was generally credible, and that Moore did not
deny any aspect of the February 6 conversation, I conclude
that it happened in substance as testified to by Cade. ‘‘In de-
termining whether a respondent has created an impression of
surveillance, the Board applies the following test: whether
employees would reasonably assume from the statement in
question that their union activities have been placed under
surveillance.’’ United Charter Service, 306 NLRB 150, 151
(1992). I conclude that Moore’s statement, about Cade being
‘‘pegged’’ as being the one in charge, at the beginning of the
organizational campaign, met the Board’s test. I therefore
conclude that the Respondent violated Section 8(a)(1) as al-
leged in paragraph 12 (b) of the complaint.
However, I conclude that the interrogation was not viola-
tive of Section 8(a)(1) under the Board’s holding in
Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom.
Hotel Employees & Restaurant Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). Moore was a low-level supervisor. At
the time there was no background of other unfair labor prac-
tices. The interrogation did not occur in a context of con-
frontation, as in, for instance, Stoody Co., 320 NLRB 18
(1995). It was the kind of interrogation which the Board
finds not unlawful. Accordingly, I will recommend that para-
graph 12(a) be dismissed.
The statement by Moore to Cade on February 7 that she
was ‘‘not supposed to [be] talking union’’ is alleged to have
been a disparate enforcement of the solicitation rule. Moore
is alleged to have verbally reprimanded Cade. I conclude that
the statements Cade testified that Moore made are too
sketchy to base a conclusion that the solicitation rule was un-
lawfully enforced.4 Nor can I conclude that Cade was unlaw-
fully disciplined. Thus, I conclude that the allegation in para-
graph 12 (c) has not been proven.
It is further alleged that Moore threatened Cade by telling
her that ‘‘I’m not going to protect you any more in that,’’
while also telling her not to talk about the Union. In context,
I conclude that Moore’s statement was a threat in violation
of Section 8(a)(1), as alleged in paragraph 12(d).
Lila Phipps testified that on April 16 she was standing at
the plant entrance hallway smoking a cigarette and holding
some union flyers, when Moore approached her and said,
‘‘Put that cigarette out,’’ and ‘‘You shouldn’t be smoking in
the hallway. No one is to smoke in the hallway.’’ And
Moore asked, ‘‘Are you passing those out?’’ And, ‘‘I hope
you’re not passing them out.’’ Phipps replied she was not.
In this Moore is alleged to have disparately and more
strictly enforced the cigarette smoking policy and disparately
enforced the distribution rule by verbally reprimanding
Phipps about distributing union flyers in the entrance hall-
way.
The Respondent had a smoking policy, which went into
effect prior to any union activity, prohibiting employees from
smoking where Phipps admitted she was. There can be little
question that Phipps in fact was violating the policy on April
16; however, the General Counsel seems to contend that
since Phipps testified she saw others smoking there, Moore’s
statement was violative of the Act. I disagree. It may be oth-
ers also violated the policy. However, there is no evidence
that such violations as were known to the Respondent were
not dealt with in a manner similar to Moore’s statement to
Phipps.
The Respondent had a legitimate policy which Phipps dis-
obeyed and Moore told her not to do so. Such was at best
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722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
minimal discipline and was certainly appropriate. I conclude
that Moore did not violate the Act by telling Phipps that she
could not smoke in a nonsmoking area. Accordingly, I con-
clude that paragraph 12(g) should be dismissed.
However, I credit Phipps version of this conversation and
conclude that Moore did unlawfully imply that Phipps could
not distribute union literature in a nonworking area on non-
working time. Implicit in her questions Moore was telling
Phipps not to pass out the flyers that that time and place. In
this Moore violated Section 8(a)(1) as alleged in paragraph
12(h). Saint Vincent’s Hospital, 265 NLRB 38 (1982).
b. Allegations involving Joe Sandor
In paragraph 12(e) it is alleged that Sandor promulgated
an overly restrictive access rule by prohibiting employees
from distributing union leaflets on the front sidewalk of the
plant. The facts giving rise to this allegation occurred on
February 12 after the employees left the company meeting
and gathered outside.
Kathy Burton testified that she was passing out handbills
on company property, about half way between the street and
the building, and ‘‘Joe Sandor told me that I had to leave
the property because I wasn’t allowed to hand those out
there.’’
Sandor testified that his comments were directed solely to
Union Organizer Frank White and not to Burton or any other
employee. Sandor testified that after speaking to White, and
White stating that he would be hearing from the Union’s
lawyers, White left the area and motioned to the two or three
lady employees to join him at the end of the street. Sandor
denied ever talking to the employees.
Whether Sandor actually spoke to employees may be a
matter of dispute. Nevertheless, there is no doubt that his
statements reasonably had the effect of causing them to leave
an area where they generally had the right to be, and hand-
bill at a different location. In effect, as argued by the General
Counsel, Sandor denied off-duty employees access without
showing a necessity therefor. Tri-County Medical Center,
222 NLRB 1089 (1976). I, therefore, conclude that the Re-
spondent violated Section 8(a)(1) as alleged in paragraph
12(e).
On April 19, it is alleged that Sandor disparately enforced
the no-solicitation/no-distribution rule by verbally reprimand-
ing Phipps and prohibiting her from leaving union flyers in
the employee cafeteria. Phipps testified that as she was put-
ting fliers on a table and Sandor said, ‘‘Lila, please don’t do
that.’’ She said, ‘‘Why, Joe? It ain’t going to hurt nothing.’’
He said sometime about clutter and papers all over the place
and she said, ‘‘I’m just laying these down.’’ ‘‘I ain’t
punched in, Joe, you know.’’ She testified that he then shook
his head and walked out the door.
As Phipps admitted, in fact Sandor did not prohibit her
from passing out literature. He simply asked her not to leave
it lying around. In this I do not find a verbal reprimand or
a disparate enforcement of a no-distribution rule. She was
told, in effect, that leaving the material on the table was lit-
tering. She was not told to cease giving flyers to other em-
ployees. Accordingly, I conclude that the allegations in para-
graph 12(l) have not been proved.
c. Allegation involving DeWayne Nicks
According to Burton, on the evening of February 12, a fel-
low employee asked her for a piece of paper, and she com-
plied. Supervisor DeWayne Nicks approached her and said,
‘‘I know that’s not union business, is it?’’ Burton responded,
‘‘No, I wouldn’t do that on company time.’’
This is also alleged to have been a disparate enforcement
of the Respondent’s solicitation-and-distribution rules. Al-
though Nicks denied the statement attributed to him by Bur-
ton, this need not be resolved. I find nothing in Burton’s ren-
dition of Nicks’ statement which could be construed as any
kind of enforcement of the rules. Nor do I believe that the
mere use of the word ‘‘union’’ by a supervisor is violative
of the Act. Accordingly, I will recommend that paragraph
12(f) be dismissed.
d. Allegations involving Vivian Williams
It is alleged that on April 17 Supervisor Vivian Williams
coercively interrogated an employee about that employee’s
support for the Union. This allegation is based on the testi-
mony of Lila Phipps.
Phipps recounted that she started the conversation with
Williams by asking why Williams was being so hard on her
that day. They then went into Williams’ office and Williams
said that she was hurt by some of the comments made by
employees in the union flyer.
Phipps responded, ‘‘Well, Vivian, a lot of it doesn’t ex-
tend to you. I mean, not what I have to say, anyways.’’ Wil-
liams then said, ‘‘Why do people want the union, Lila?’’
Phipps told ‘‘I want respect . . . I don’t get it. Not from
Carl, Rachel, nobody.’’
Williams testified that this conversation started with
Phipps asking why Williams did not like her. Williams said
she did like her then something was said ‘‘about the union
and I just told her the reason why I didn’t think we needed
a union at MPI. And that was the end of the conversation
as far as I had.’’
There is nothing, even in the version of this recounted by
Phipps, which amounts to coercive interrogation. There were
no threats or promises of benefit. At best a low-level super-
visor asked why employees wanted the union in the context
of a conversation started by the employee. I cannot conclude
that anything Williams said reasonably would tend to inter-
fere with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7. Rossmore House, supra.
Accordingly, I will recommend paragraph 12(i) be dismissed.
According to Phipps, the next day she left the line to get
a cup of coffee and Williams ‘‘said I couldn’t go no more
to the coffee, go get any coffee, period. I said, ‘Well, why
not, Viv?’ I said, ‘I’ll just be right back.’ And she said, ‘No,
we got to go by the handbook now.’ And I said, ‘Okay. No
problem.’’’
Though Phipps admitted that as she was leaving the line
she did not ask Williams for permission or even say where
she was going, in her affidavit she maintained she had asked
permission and had been denied. Phipps also admitted that
the coffee she intended to get would have been in a container
without a lid.
Williams testified that Phipps walked off the line to get a
cup of coffee and ‘‘I told her she couldn’t have a cup on
the floor without a proper lid on it because that was the com-
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723MATERIALS PROCESSING
pany decisions because we had paint drop in cups before.’’
She testified, without contradiction, that no coffee cups were
allowed on the floor without proper lids, and that employees
were repeatedly reminded of this.
I credit Williams over Phipps. Phipps gave inconsistent
versions of this event. That she was prohibited from taking
a coffeebreak, or from having coffee on the line, and that
this was a change of policy, is the essence of the complaint
allegation. Neither is supported by evidence other than her
bare assertion. And even Phipps admitted she did not ask
permission to leave the line. I conclude that the General
Counsel has not sustained the allegation in paragraph 12(k)
of the complaint, and I will recommend it be dismissed.
e. Allegations involving Emmett Windisch
Donna Harrington testified that sometime (about April as
best she could remember), during a followup conversation
with Windisch about his sponsoring her daughter in a beauty
contest, Windisch said, ‘‘whatever you get here, is from us,
it is not from no union. It had better all stop.’’ And ‘‘he said
something like, I am not going to listen to the union, with
all their commands.’’
By these two statements Windisch is alleged to have
threatened employees with the elimination of benefits and
that it would be futile for the employees to choose the Union
as their collective-bargaining representative.
As with so many of the alleged violations in this matter,
these allegations are based on limited and vague testimony
of employees without any contextual support. There is no
evidence that the Respondent mounted much of a campaign
against the Union. The threats alleged here were not made
in speeches to groups of employees. While the Respondent
may have been opposed to the Union, its opposition was lim-
ited. Indeed, employees at the Respondent’s other facility
have been represented since 1983.
Windisch testified that Harrington did ask him to sponsor
her daughter. After consulting with his partner, he decided
that such was an undertaking he should not get into, and he
so informed Harrington. He did not, however, specifically
deny making the statement that ‘‘whatever you get here, is
from us, it is not from no union. It had better all stop.’’ Nor
did he deny saying anything to the effect that he was not
going to listen to the Union.
Notwithstanding that Harrington’s version of her conversa-
tion with Windisch is undenied, it is, on balance, insufficient
to support the violations alleged. The context relates to her
request that the Respondent sponsor her daughter, the denial
of which is not alleged a violation. It just does not seem
plausible that in such a context, Windisch would make the
threats alleged. And, as noted, Harrington’s testimony is, at
best, vague. Accordingly, I conclude that the General Coun-
sel has not sustained the allegations in paragraphs 12(m) and
(n) and I shall recommend they be dismissed.
f. Prohibiting employees from parking in the employee
parking lot
It is alleged that on April 17 or 18, a Merchant security
guard, John Laskowski, discriminatorily prohibited Kevin
Thomas from parking in the employee parking lot in viola-
tion of Section 8(a)(1).
Thomas testified that on the day in question, he had re-
turned to the plant after his shift because he had forgotten
his jacket. He parked in the lot across from the plant, got
out of his car and the approaching security guard said he
could not park in the company employees’ parking lot.
Thomas told Laskowski that he was an employee but he did
not tell Laskowski that he was just there to pick up his coat.
Laskowski responded that ‘‘they’’ told him to tell Thomas
they did not want him to park in the lot. There followed an
altercation which led to the discharge of Thomas, infra, but
which is not relevant to the parking lot issue.
Laskowski credibly testified that the rule had been ‘‘[i]f
you’re done working, you’re punched out, you are to leave
unless you have business there for some reason or if you’re
there to pick up somebody or wait for somebody to be
picked up, then you’re allowed to stay there.’’ And
Laskowski testified that he had enforced this rule prior to the
incident in question.
Under the rule stated by Laskowski, Thomas would have
been allowed to park in the lot while getting his jacket.
However, Thomas never told Laskowski the purpose of his
wanting to park in the lot. Therefore, it cannot be found that
the Respondent discriminatorily enforced the parking lot rule.
As far as Laskowski reasonably knew, Thomas was an off-
duty employee with no reason to park in the parking lot. The
General Counsel did not prove otherwise. Accordingly, I
shall recommend that paragraph 12(j) be dismissed.
g. Videotaping employees
Following the February 12 meeting, employees left the
plant and began picketing outside. The Respondent instructed
security guards to videotape this event, which the General
Counsel alleged was unlawful surveillance in violation of
Section 8(a)(1). I agree.
Citing Waco, Inc., 273 NLRB 746 (1984), the Board has
held ‘‘that absent proper justification, the photographing of
employees engaged in protected activities violates the Act
because it has a tendency to intimidate.’’ F. W. Woolworth
Co., 310 NLRB 1197 (1993). Further, proper justification
must be more than a mere belief that something ‘‘might’’
happen.
Here the Respondent contended that there were ‘‘rumors’’
of violence, but offered no evidence other than Sandor’s
mere assertion. This, under Board law, is insufficient. I con-
clude the Respondent had no proper justification to videotape
the February 12 picketing, and by doing so violated Section
8(a)(1) of the Act.
2. The 8(a)(3) allegations
a. Announcing the wage increase
It is alleged that Sandor violated the Act by announcing
to employees a classification change and pay increase at the
February 12 meeting. The Respondent argues that such had
been in the works for some time, and offered rough notes
dated in December, to prove that this announcement was of
a benefit previously established. I disagree.
While it may be that the Respondent had been considering
a pay increase, there is no evidence that such was settled be-
fore the union activity, or was set to be announced in Feb-
ruary to take effect in March. Nor is there evidence that such
pay raises were regularly given at about this time of year.
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724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Windisch testified that the Respondent does give pay in-
creases annually, but he could not remember when such oc-
curred in 1995 or 1994.
No doubt an employer may lawfully announce an existing
benefit during an organizational campaign. Ideal Macaroni
Co., 301 NLRB 507 (1991). However, the evidence here is
insufficient to persuade me that in fact the Respondent had
determined to give the wage increase which was announced
on February until it learned of the employees’ organization
campaign. I conclude that by announcing the wage increase
when he did, Sandor violated Section 8(a)(1) of the Act.
b. The popcorn writeups
On March 19, the Respondent held a meeting for all em-
ployees at which they were shown an antiunion movie. Con-
sistent with the Respondent’s policy for such meetings, em-
ployees were allowed to bring drinks and snacks. Sandor de-
scribed the condition of the room afterward:
Shocking, maybe, in that it’s the first time I’ve seen
such a large mess at MPI and through, probably, most
of my history. I mean, this had popcorn just strewn on
the floor, had a couple of smaller bags of other snack
food—I can’t remember whether they were Ho-Hos of
Suzi Qs. There was also a bag of either Fritos or
Boritos, one of the personal-size bags you can put in
your lunch box. There were also, then, two drink con-
tainers—I don’t know if they were Pepsi or Coke.
But the janitor on day shift just bitterly complained
because he walked into it the next morning.
Sandor testified that he directed Vivian Williams and Ray
Tanner to investigate the incident further, after which they
agreed to disciplining the offending employees for ‘‘throwing
food around.’’ Thus on March 21, Lila Phipps, Mike Mont-
gomery, Derrick Reed, and Dennis Meltzer were given writ-
ten warnings for ‘‘contributing to unsanitary conditions or
poor housekeeping.’’
While the four individuals disciplined all testified that
there was some liter on the floor after the meeting, they all
denied it was substantial. They further denied that they or
anyone threw popcorn or other food.
An employer may, of course, discipline employees for lit-
tering food. However, an employer may not use such as a
pretext for disciplining employees because of their union ac-
tivity. Which this was depends in large extent on whose ver-
sion is credited. I believe the witnesses for the General
Counsel and disbelieve Sandor and the Respondent’s wit-
nesses.
Derrick Reed no longer works for the Respondent and has
no apparent stake in the outcome of this matter. He testified
that people came to the meeting with popcorn and other
snacks. Sandor told them to be careful with it and as these
snacks were passed around, some was dropped. The next day
he got a writeup which ‘‘made me mad, because you put
down unsanitary housekeeping and I am the janitor. Why
would I want to mess up this and I have to clean it up, so
what is this?’’ This testimony suggests there was some litter,
but not nearly the extent to which Sandor testified.
Sandor testified that the janitor (unnamed in his testimony)
‘‘bitterly complained.’’ Reed, the only janitor, as far as I can
tell from this record, did indeed complain. However, his
complaint was for being given the warning, not because em-
ployees had littered the meeting room. It appears, and I con-
clude, that Sandor was being less than candid with regard to
this aspect of his testimony. Further, Sandor testified that he
witnessed the incident but neither immediately took action
himself nor did he tell Tanner who was responsible for the
alleged mess. Sandor’s testimony in this is not credible.
I conclude that the Respondent grossly exaggerated the
condition of the room after the meeting in order to discipline
four union activists just prior to the election. Accordingly, I
conclude that the written warnings were given in violation of
Section 8(a)(3) of the Act.
c. The warning to Stephanie Cade
It is alleged that on March 22, Michael Travis unlawfully
gave a written warning to Stephanie Cade. According to
Cade, after an employee meeting that day (at which they
were shown an antiunion movie) she stopped on her way
back to the line to make a phone call. Sandor came by,
pointed to her and said, ‘‘Are you on break?’’ and she said
she was. She continued to talk for a few more minutes then
went back to work.
Then Travis and Sandor approached her and Travis said,
‘‘Did you not say you were on break’’? She confirmed that
is what she said. About 15 minutes later she was called into
Sandor’s office and given a writeup which stated:
Failure to give satisfactory explanation of where-
abouts or presence at unauthorized location.
When asked was she on break by plant manager she
said she was on break—which was a lie. Employee was
away from line and on [pay telephone in lobby]—
while line was operating.
Cade justifies her use of the telephone, and her statement
to Sandor that she was on a break, saying that after these
meetings her supervisor, Rachel Moore, always gave employ-
ees ‘‘a couple of minutes to go to the bathroom or either go
have a cigarette.’’
Sandor testified that after he asked Cade if she was on a
break and she said she was, he saw the paint line operating.
He then saw crew leader Travis and asked him if Cade was
on a break and he said she was not. They then asked Cade
why she had said she was on a break and she said she did
not know. Sandor testified that ‘‘there was no reason for her
to be on the telephone, so we just labeled it as being away
from her work station, in essence, without a good expla-
nation.’’
Sandor did not address Cade’s assertion that after the em-
ployee meetings they were given a few minutes; however, he
did testify that the paint line was operating, which tends to
suggest that other employees had returned directly to work
without the few minutes of time to smoke a cigarette or go
to the bathroom.
On the evidence of record, it does appear, and I conclude,
that Cade in fact was using the telephone without permission,
and when confronted by Sandor untruthfully told him she
was on a break, suggesting she had permission. Such acts
certainly justify the writeup she was given.
In analyzing cases of alleged discrimination where the em-
ployee has engaged in protected activity, but also has done
something apparently meriting discipline, the Board first con-
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725MATERIALS PROCESSING
siders whether the General Counsel has made out a prima
facie case of discrimination. If so, then it is incumbent on
the respondent to prove that it would have taken the same
disciplinary action in the absence of the protected activity.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st. Cir. 1981), cert. denied 455 U.S. 989 (1982). Since the
Respondent does in fact give written warnings to employees
for various violations of company rules, I conclude that ab-
sent the union activity, Cade would have been given this
warning. Accordingly, I shall recommend that paragraph 16
be dismissed.
d. The discharge of Robert Smith
Robert Smith testified that he was hired as a temporary
employee sometime in October 1995 and then hired perma-
nently in January, though the Respondent’s records show his
date of hire as November 30, 1995. Smith testified that he
was discharged on February 13, because ‘‘I had walked off
the line before,’’ a fact which he disputes.
Though denying that he had ever received a written warn-
ing, the Respondent offered into evidence a warning to Smith
dated December 7, 1995, which states:
Failure to be at work area when shift starts.
Overstaying or abuse of relief period.
(Resulting in 2 damaged axles)
WRITTEN WARNING
I do not credit Smith’s assertion that this warning was torn
up by someone (presumably he was referring to Maureen
Boyd, the human resource director). The warning was clearly
not torn up, and Smith signed it without comment. Smith
may have been referring to a subsequent incident, testified to
by DeWayne Nicks, to the effect that Smith was one of sev-
eral employees discharged for breaking into a vending ma-
chine, but after investigation it was decided that there was
insufficient evidence to charge Smith and his warning was
destroyed.
Nicks further testified that he gave Smith the December 7
warning, because Smith had failed to return on time from his
break and as a result an axle fell and was damaged. Then
on February 9, Smith was again late returning from break
and Nicks warned him verbally, saying, ‘‘You know, you’re
on your probationary period. When breaks are over and ev-
erybody else goes back to work, I expect you to come back
to work.’’
Then on February 12, Sandor told Nicks, ‘‘I believe one
of your guys is down on the telephone. And I went down
there and sure, again, it was Robert. He hadn’t came back
after break and said he went to make a phone call.’’ Sandor
asked about Smith. Nicks recounted the previous incidents
and Sandor said, ‘‘We gave him enough chances. It’s time
to let him go.’’
Although an employer may not seize on some infraction
of work rules to discipline or discharge employees for their
union activity, engaging in union activity does not immunize
employees from complying with reasonable rules.
I credit Nicks and conclude that Smith was discharged be-
cause he was away from his work area and not because of
his or other employees’ union activity. Smith had been
warned well before any union activity began, but he contin-
ued to engage in the same behavior. I conclude that Smith
would have been discharged irrespective of any union activ-
ity. Therefore, I shall, therefore, recommend that paragraph
17 be dismissed.
e. The suspension and discharge of Dennis Meltzer
Dennis Meltzer was a forklift operator on the second shift.
At about 4 a.m. on April 3 (at the end of his shift) Meltzer
ran into a pole, causing damage to both the forklift and the
pole, although Meltzer testified that he saw no damage to the
forklift at the time. In any event, assuming his supervisor had
already gone, Meltzer left work and did not report the acci-
dent until returning the next day. He was then suspended by
Supervisor Ray Tanner ‘‘pending discharge.’’ When the Re-
spondent learned that damage to the forklift would exceed
$1000 and that damage to the pole would be about $1000,
Meltzer was discharged.
The General Counsel argues that Meltzer was a known
union activist and that his discharge was, therefore, violative
of Section 8(a)(3). The Respondent argues that it has a con-
sistent policy of discharging any employee who causes dam-
age of $1000 or more.
Witnesses for both sides testified that there are a lot acci-
dents involving forklifts. There are examples in the record of
accidents involving less than $1000 in damage where the
employee was not discharged, but given a written warning.
And there are examples where, on investigation, it was deter-
mined that the operator was not at fault, and no discipline
was given. Thus when Meltzer caused about $4000 damage
to a lighting system in late March he was only given a warn-
ing, because it was determined that most of the damage was
not attributable to him.
On April 2 Jerry Brewer was given a written warning for
carelessness when he hit a propane tank. On March 21
Montez Perkins was suspended pending investigation for an
accident involving the lights, but was reinstated. On April 20
Peter Dupuis was suspended then recalled for an accident in-
volving $750–$800 in damages. And on June 13 Mike Mont-
gomery was suspended, but then returned to work without a
writeup, because the investigation revealed that his accident
was unavoidable.
The Respondent’s treatment of these matters tends to sup-
port its argument that its policy, where there is an accident
involving damage, is to investigate and then discharge the
employee if the damage exceeds $1000, but to give a lesser
discipline if the damage is under $1000, or none at all if it
is determined that the employee was not at fault. This is set
forth in the Respondent’s Handbook.
Although Meltzer was a known union supporter (as were
Dupuis and Montgomery), I nevertheless conclude that he
would have been discharged for the accident which caused
about $2500 in damages. Had the Respondent simply been
looking for an excuse to discharge him, such was provided
with the March accident involving the lights, or an earlier
time when he had been cautioned about ‘‘bulldozing’’ with
his forklift.
Finally, the General Counsel argues that the asserted rea-
son for Meltzer’s discharge was a pretext because the dam-
age was minimal to both the forklift and the pole. Notwith-
standing Meltzer’s observation, the credible evidence is that
there was in fact damage to both. The estimates and invoices
appear credible. I conclude that in fact Meltzer did cause
damage of about $2500, and for such he was discharged. Ac-
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726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cordingly, I shall recommend that paragraphs 18 and 19 be
dismissed.
f. The suspension and discharge of Kevin Thomas
Kevin Thomas had worked for the Respondent since 1995
as a forklift operator. As noted in section B,1,f, above, on
April 17 (or 18) Thomas returned to the plant after his shift
and was told by security guard John Laskowski that he could
not park in the company parking lot. Thomas testified:
I was actually going to go ahead and walk into the
building because I didn’t really understand why he was
coming towards me like that because I had never had
any confrontation at work at all. As I was walking
away, he started yelling real loud at me. By the time
I turned around, he had his finger in my face, pointing
like this telling me that I have to move my car. So, I
mean, I kind of got mad about it, because I am a grown
man and I didn’t appreciate him putting his fingers in
my face, yelling at me.
So Thomas told Laskowski ‘‘that if he ever talked to me
like that again I’d beat his m— f— ass.’’
The next day, either April 18 or 19, Thomas unloaded 40
racks of gas tanks from a railway car. He apparently mis-
judged the clearance on the last two racks. The top hit the
car causing the gas tanks to fall.
Undisputedly, when gas tanks are dropped, they are con-
sidered damaged and are returned to the maker. Thus Thom-
as’ accident resulted in damages in excess of $1000. He was
suspended pending investigation, and on April 24 was dis-
charged for:
TERMINATED DUE TO VIOLATION
OF WORK RULES:
(a) I-C-15-A—Reckless driving of forklift and loss
in excess of $1000.00 For dropping two (2) fuel tank
racks and resulting fuel tank damage (safety rule #23)
(b) I-C-7—For threatening a Company employee on
April 18, 1996.
The General Counsel does not dispute that Thomas threat-
ened the security guard or had an accident involving more
than $1000 in damage. Rather, the General Counsel argues
that these events were seized as a pretext to discharge a
union activist following the election—that Thomas was pro-
voked by the guard and that the Respondent does not dis-
charge those for whom mitigating circumstances are found.
I reject these arguments.
Unquestionably Thomas threatened Laskowski. Even ac-
cepting Thomas’ testimony completely, it would be difficult
to conclude that Laskowski did anything to provoke the kind
of threat Thomas made. However, irrespective of this event,
it is clear that Thomas had an accident which caused more
than $1000 of damage and that pursuant to the Respondent’s
established policy, he would have been discharged.
The General Counsel argues that the Respondent always
takes into consideration mitigating circumstances, and its
failure to do so here demonstrates its unlawful motive. How-
ever, the General Counsel did not suggest what those cir-
cumstances might be, and I find none. Unlike the Montgom-
ery accident, where water covered up a hole in the pavement,
there are no facts here which would suggest that Thomas was
not careless. Indeed, he had already unloaded 38 racks of
tanks. Thus he presumably knew how much clearance was
involved.
I conclude that the evidence is insufficient to support the
General Counsel’s contention that the Respondent was moti-
vated to retaliate against Thomas because the union had won
the election. Accordingly, I shall recommend that paragraphs
20 and 21 be dismissed.
g. The warning, suspension, and discharge of
Donna Harrington
The Respondent paints fuel tanks and axles. Involved in
the process, among other things, is the removal of identifica-
tion tags from the axles prior to painting and then replacing
those tags afterward. Since axles are different for different
vehicles, it is important that the correct tag be placed on a
painted axle. If it is not, then the axle may later be put on
the wrong type of vehicle, which fact will only be discovered
after final assembly.
Donna Harrington’s job was to replace the tags. On May
7 she received a ‘‘final warning’’ because she had mistagged
three racks of axles. Then just 10 days later, she was ‘‘sus-
pended pending termination’’ because she had mistagged
axles which had been shipped to an assembly plant at
Wentzville, Missouri. The mistagging had not been discov-
ered until some of the axles had been put on vehicles. This
resulted in charges to the Respondent estimated at $3500-
$4500, in addition to the Respondent having to send two
management people to Wentzville to inspect for mislabeled
axles.
The General Counsel argues that the initial warning given
to Harrington, as well as the suspension and discharge, were
in retaliation for the employees having voted for union rep-
resentation. The General Counsel argues that in the normal
course of events, and absent union animus, the Respondent
would not have disciplined or discharged Harrington. Rather,
she would have been given a different job. There is no evi-
dentiary support for this argument, nor, as matter of law, is
the Respondent required to transfer, rather than terminate,
employees who have demonstrated an incapacity for their
job.
While the General Counsel seems to dispute the fact that
Harrington twice mistagged axles, causing substantial loss to
the Respondent, the credible evidence is to the contrary. Har-
rington was the only tagger on the day shift. The Respondent
had in place a system whereby it could determine when axles
were painted and on which shift. The Wentzville axles were
painted on the day shift at a time when Harrington was
working. Nor did she deny that she mistagged the axles. In
fact she acknowledged making tagging mistakes. That she
was a known union activist did not immunize her from doing
her job properly. I conclude that regardless of the employees
union activity, on these facts the Respondent would have
given Harrington a written warning, and for a second offense
10 days later, would have discharged her. Accordingly, I
conclude that paragraphs 22, 23, and 24 should be dismissed.
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727MATERIALS PROCESSING
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Materials Processing, Inc., Riverview,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Creating the impression that employees’ union activity
is under surveillance.
(b) Prohibiting employees from distributing union lit-
erature in nonwork areas on nonworktime.
(c) Threatening employees with reprisals should they en-
gaged in union activity.
(d) Denying off-duty employees access to company prem-
ises without showing a necessity therefor.
(e) Videotaping employees engaged in union or other pro-
tected activity.
(f) Granting wage increases or other benefits in order to
discourage employees from engaging in union or other pro-
tected activity.
(g) Disciplining employees because they have engaged in
union or other protected activity.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from its files any reference to the warnings
given Lila Phipps and Mike Montgomery on March 21,
1996, and notify them, in writing, that this has been done
and that the warning will not be used against them in any
way.
(b) Within 14 days after service by the Region, post at its
facility in Riverview, Michigan, copies of the notice marked
‘‘Appendix.’’6 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the Re-
spondent at any time since February 14, 1996.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint is dis-
missed insofar as it alleges violations of the Act not specifi-
cally found.
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