Kenco Plastics Company, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1420 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenco Plastics Company, Inc. and United Paper-
workers International Union, AFL-CIO. Case
30-CA-5684
March 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 5, 1981, Administrative Law Judge
David L. Evans issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only
to the extent consistent herewith.
1. The Union initiated an organizing campaign
among the production and manufacturing employ-
ees at Respondent's facility in November 1979.
Prior to the Union's organizing campaign, Re-
spondent's general manager, Frank Raufeisen, vis-
ited the production area of the plant once or twice
a day. Employee witnesses credibly testified, how-
ever, that Raufeisen increased both the frequency
and the duration of these visits after the Union
filed a representation election petition with the
Board on December 26, 1979. During these visit,
Raufeisen closely scrutinized the activities of pro-
duction employees, including employee Richard
Pitts, whom Raufeisen admittedly suspected was
one of the Union's chief adherents.
The Administrative Law Judge found that Rau-
feisen intensified his observation of employees be-
cause the petition had been filed and because the
employees had been engaging in union activity.
Despite this finding, he concluded that Respondent
had not violated the Act in the absence of a con-
tention that Raufeisen's conduct made working
conditions more onerous. We disagree.
In view of the unprecedented nature of Raufei-
sen's visits to the production area, the absence of
any legitimate explanation for these visits, and the
suspicious timing of their occurrence after the
filing of the election petition, we find that these
visits had the purpose and effect of harassing and
intimidating employees because of their union ac-
tivities. Such conduct interferes with employees'
rights under Section 7 of the Act even if no more
onerous working conditions are imposed. Accord-
ingly, we find that Respondent violated Section
260 NLRB No. 194
8(a)(1) of the Act by intensifying its observation of
employee activities in response to union activities.'
2. On January 21, 1980,2 Raufeisen issued a writ-
ten warning to Richard Pitts for loitering. The
letter stated: "Time and again I have observed you
loitering around the plant. Be advised, this will not
be tolerated. This is warning number one." The
complaint alleges that Respondent's issuance of the
warning letter is a violation of Section 8(a)(3) and
(1). The Administrative Law Judge recommended
dismissal of the allegation based on his conclusion
that there was no showing of animus and that the
General Counsel failed to prove that Pitts was not
loitering. Again, we disagree.
Prior to the Union's organizing campaign, Pitts
had received only compliments about his work, no
complaints or warnings. When the campaign
began, Pitts passed out authorization cards to nu-
merous employees, spoke openly about his support
for the Union, and became one of the Union's lead-
ing adherents. Respondent was indisputably aware
of Pitts' union activities.
In finding a prohibited motive for a disciplinary
action, independent evidence of animus is relevant
but is not an essential element of proof. 3 It is clear,
however, that Respondent did indeed harbor
animus against the Union. Respondent expressed
this animus lawfully by making speeches at the
plant and by sending employees letters which indi-
cated strong opposition to the Union. In addition,
Pitts testified without contradiction that Supervisor
Levine Wetley offered him a raise if Pitts would
"talk to people and forget about the Union." 4 Fi-
nally, Respondent's animus was manifest when, as
discussed above, Raufeisen unlawfully increased his
observation of employees at work because they had
engaged in union activity. Accordingly, Respond-
ent's animus is a circumstantial factor warranting
an inference of unlawful motivation for the warn-
ing to Pitts.
The suspicious timing of the warning letter fur-
ther warrants an inference of unlawful motivation.
The representation petition was filed on December
26, 1979, Raufeisen responded with unlawful ha-
rassment of employees at work, the representation
hearing was conducted on January 16, and Re-
spondent issued the unprecedented warning letter
to Pitts on January 21. When asked why he issued
the warning to Pitts when he did, Raufeisen testi-
fied that, while he was spending more time on the
plant floor, he noticed that Pitts was spending
See, e g., Florida Steel Corporation, 215 NL RB 97, 98 (1974)
All dates are in 1980 unless otherwise indicated.
3 Auto-Truck Federal Credit Union, 232 NLRB 1024, 1027 (1977).
4 Wetley did not testify. The General Counsel does not allege that
Wetley's conduct violated Sec 8(a)}().
1420
KENCO PLASTICS COMPANY, INC.
more time away from his work station. Rather than
eliminating suspicion about the timing of the warn-
ing, Raufeisen's statement suggests that the warn-
ing was the logical and desired consequence of his
unlawful observation tactics.
Based on the foregoing, we conclude that the
General Counsel established a prima facie case that
Respondent issued the warning to Pitts because of
his union activity. Respondent's knowledge of
Pitts' union activity, its expression of union animus,
the precipitous timing of the warning, and the con-
trast between the warning and Respondent's previ-
ous apparent satisfaction with Pitts' work constitute
a prima facie showing of unlawful discriminatory
motivation. We find that Respondent has failed
either to rebut that showing or to demonstrate that
it would have warned Pitts in the absence of his
union activities. Although Raufeisen testified that
he had noticed Pitts loitering on several prior occa-
sions and that he had issued warnings for loitering
to other employees in the past, this unsubstantiated
testimony merely begs the question why Pitts had
not been warned prior to January 21. In addition,
Pitts testified without contradiction that, when he
showed the written warning to Supervisor Wetley,
Wetley stated that he was not aware of a loitering
policy and that this was the first time he had ever
heard of such a warning.
We conclude that Respondent has failed to estab-
lish its reliance on a legtimate reason for issuing a
written warning to Pitts on January 21. We further
conclude that the preponderance of all the evi-
dence establishes that Respondent disciplined Pitts
solely because of his protected union activities,
thereby violating Section 8(a)(3) and (1) of the Act.
3. On February 1, the Regional Director for
Region 30 directed a representation election to be
held among employees at Respondent's plant on
February 28. On February 11, Respondent termi-
nated Pitts. Contrary to the Administrative Law
Judge, we find that Respondent discharged Pitts
for engaging in union activities and thus violated
Section 8(a)(3) and (1).
On February 8, Pitts lost 20 cents in the coffee
machine located in Respondent's lunchroom. Pitts
affixed to the machine a note which stated: "THIS
F- MACHINE OWES RICK 20¢." Subsequent-
ly, Raufeisen removed the note, photocopied it,
and reposted the note with the notation "2/8/80
· ..FR has original . . . owes Rick 20¢." Later
that same day, Pitts affixed another note to the ma-
chine, stating: "R.P. WILL GIVE YOU AN-
OTHER ONE IF YOU WANT THIS F- MA-
CHINE OWES RICK 20¢." Pitts was the only
plant employee named Rick.
On February 11, Raufeisen called Pitts into his
office and told him he was terminated because of
the obscenity used in the February 8 notes. During
the ensuing conversation, Raufeisen threw a copy
of one of the notes at Pitts, telling him to give it to
the union representative. 5 On the same date, Rau-
feisen prepared a written report of the termination
in which he noted the reason for discharge only as
"use of profanity." At the hearing, however, Re-
spondent presented a virtual laundry list of reasons
for the discharge, asserting that Pitts was a poor
quality employee, maintained a poor attendance
record, engaged in perpetual loitering, threatened
fellow workers, stole company property, and used
excessive profanity. Notwithstanding these alleged
deficiencies, Pitts had received only the January 21
warning letter, discussed in the preceding section,
before his discharge. Raufeisen admitted that he
has an established progressive disciplinary system
which involves three warnings and two suspensions
before termination.
The Administrative Law Judge considered the
alleged reasons for Pitts' discharge and, with the
exception of the use of profanity, found each to be
without basis and clearly pretextual. He further
found even the profanity defense to be "suspi-
cious," but refused to discredit it and to draw an
inference of unlawful discriminatory motivation in
the perceived absence of circumstances corroborat-
ing such an inference.
Contrary to the Administrative Law Judge, we
find that the General Counsel made a strong prima
facie showing of Respondent's intent to discharge
Pitts for his union activities. In addition to the evi-
dentiary factors of knowledge, animus, timing, and
related unfair labor practices discussed in preceding
sections, we find proof of unlawful discriminatory
motivation in Raufeisen's reference to a union rep-
resentative during the discharge interview, Re-
spondent's advancement of a multiplicity of inad-
equate post hoc reasons for the discharge,6 and the
gross disparity between Pitts' disciplinary treatment
and Respondent's established progressive disciplin-
ary system.
Respondent's reliance on Pitts' use of profanity
in the February 8 notes cannot stand against the
weight of evidence cited. Employee witnesses cre-
dibly testified that the allegedly offending obscen-
ity was commonplace in conversation at Respond-
ent's facility and had appeared in bathroom grafitti.
Respondent still urges its concern that the obscen-
I While the Administrative Law Judge did not refer to Raufeisen's
throwing the note and making reference to the union representative,
Pitts' testimony about this conduct stands undenied by Raufeisen.
6 See Shattuck Denn Mmining Corporation (Iron King Branch) v.
N.LRB., 362 F2d 466, 470 (9th Cir. 1966)
1421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity not be seen in writing, but Raufeisen himself
belied such a concern by posting an unexpurgated
copy of Pitts' note.
Based on the foregoing, we find that Respondent
seized upon the February 8 note incident as a pre-
text to rid itself of a principal union adherent
during the critical preelection campaign period.
Moreover, even assuming that Respondent legiti-
mately relied on Pitts' use of obscenity in disciplin-
ing him, we find that it has failed to demonstrate
that it would have discharged Pitts in the absence
of his union activities. 7 In this regard, we note
again Respondent's unexplained departure from a
progressive disciplinary system when it terminated
Pitts after only a single prior warning. According-
ly, we find that Respondent violated Section
8(a)(3) and (1) by discharging Pitts because of his
union activities.
CONCI.USIONS OF LAW
1. Kenco Plastics Company, Inc., is an employer
within the meaning of Section 2(2) of the Act, and
is engaged in business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By harassing employees with intensified sur-
veillance of their work because they engage in
union activities, Respondent violated Section
8(a)(1) of the Act.
3. By issuing a written warning to Richard Pitts
on or about January 21, 1980, and by discharging
him on or about February 11, 1980, in retaliation
against his union activities, Respondent violated
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act, we shall order that
Respondent cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act. In particular, having found that
Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Richard Pitts because he en-
gaged in union activity, we shall order that Re-
spondent offer him reinstatement to his former po-
sition or, if that position no longer exists, to a sub-
stantially equivalent one, without prejudice to se-
niority or other rights and privileges enjoyed by
him. We shall additionally order that Respondent
make Richard Pitts whole for any loss of earnings
or other benefits he may have suffered as a result
of his unlawful discharge. Backpay shall be com-
' See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083
(1980).
puted in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest as
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977); see, generally, Isis Plumbing & Heating
Co., 138 NLRB 716 (1962). 8 Finally, we shall order
Respondent to expunge from its personnel files any
reference to Pitts' unlawful warning and discharge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Kenco Plastics Company, Inc., Necedah, Wiscon-
sin, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Harassing employees by intensifying surveil-
lance of their work because they engage in union
activities.
(b) Discriminatorily issuing warning letters to or
discharging employees because they engage in
union or other protected concerted activities.
(c) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights guaranteed under Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Offer Richard Pitts immediate and full rein-
statement to his former position or, if that position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority and other
rights and privileges, and make him whole for any
losses he may have suffered by reason of Respond-
ent's discrimination against him in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Expunge from its files any reference to the
disciplinary warning issued to Richard Pitts on or
about January 21, 1980, and to his subsequent dis-
charge, and notify him in writing that this has been
done and that evidence of these unlawful disciplin-
ary actions will not be used as a basis for future
discipline against him.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
' Member Jenkins would award interest on the backpay due based on
the formula set foirth in his dissenting opinion in Olympic Medical Corpo-
rution, 250 NLRB 146 (1980)
1422
KENC() PLASTICS COMPANY, INC.
(d) Post at its Necedah, Wisconsin, place of busi-
ness copies of the attached notice marked "Appen-
dix."9 Copies of said notice, on forms provided by
the Regional Director for Region 30, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 30,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
' In the e ent that this Order i, enforced h, aI Judgment of .a inted
States Court of Appeals, the :ord, in the notice reading "Poted hy
Order of the National Labor Relajtion BoaI rd" shall read l'osted Puuru-
ant to a Judgment of the Inti ted Stale ( 'iurt of Appeals Enforcing ain
Order of the N; tional I abor Relatilonls lBoard
APPENDIX
NOTICi- To EN1PI.OY-L S
POST ED BY ORDI)R OF1 TIl:
NATIONAL LABOR RFIt.ATI ONS 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.
WE WILL NOT harass our employees by in-
tensifying our surveillance of their work be-
cause they engage in union or other protected
concerted activities.
WE Wll.l. NOT issue warning letters to or
discharge employees because they engage in
union or other protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Richard Pitts reinstatement
to his former position or, if that position no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority and to
other rights and privileges previously enjoyed,
and WE WILl make him whole for any loss of
earnings he may have suffered by reason of his
unlawful discharge, together with interest
thereon.
WE WILL expunge from our files any refer-
ences to the disciplinary warning issued to
Richard Pitts on January 21, 1980, and to his
subsequent discharge.
WE witl. notify Richard Pitts in writing
that this has been done and that evidence of
these unlawful actions will not be used as a
basis for future discipline against him.
KENCO PL ASTICS COMPANY, INC.
DECISION
STAI MIINI 01: THIi CASI.
DAVID L. EVANS, Administrative Law Judge: A hear-
ing on this matter was held before me on November 25,
1980, at Mauston, Wisconsin. The complaint is based
upon charges filed on February 27, 1980,' against Kenco
Plastics Company, Inc., herein called Respondent, by
United Paperworkers International Union, AFL-CIO,
herein called the Union. The complaint alleges one inde-
pendent violation of Section 8(a)(l) of the Act and fur-
ther alleges issuance of a warning notice to and dis-
charge of employee Richard Pitts in violation of Section
8(a)(3) and (I) of the Act. Respondent filed an answer
admitting jurisdictional facts but denying the commission
of any unfair labor practices.
After the close of the hearing, Respondent filed a brief
which has been carefully considered.
On the entire record and having taken into account
the arguments made at the hearing and the brief submit-
ted, I make the following findings and conclusions:
I. JURISDICTION
At all times material herein, Respondent has been a
Wisconsin corporation with an office and place of busi-
ness in Necedah, Wisconsin, where it is engaged in the
manufacture of fiberglass products. During the calendar
year ending December 31, Respondent in the course and
conduct of said business operations sold and shipped
from its Necedah, Wisconsin, facility products and mate-
rials valued in excess of $50,000 directly to purchasers
located in points outside the State of Wisconsin. The
complaint alleges, Respondent admits, and I find that Re-
spondent is and has been at all times material herein an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THF- UNION'S I.ABOR ORGANIZATION SIATUS
The complaint alleges, Respondent admits, and I find
and conclude that at all times material herein the Union
has been, and is, a labor organization within the meaning
of Section 2(5) of the Act.
II. THI- A LEGE D UNFAIR I.ABOR PRACTICES
A. Findings
Respondent manufactures, among other things, fiber-
glass tank covers for waste disposal plants. Its general
All dates herein are betuecn D)ecember 26, q147Q and February II,
19o0, unless otleru ise speclfied
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager is Frank Raufeisen and its supervisors are Levin
Wetley and Frank Bezmek, all three of whom are super-
visors within the meaning of Section 2(11) of the Act.
Respondent employs about 30 production and mainte-
nance employees and some office employees, including a
draftsman, James Robinson.
On December 26 the Union filed a petition for a
Board-conducted election seeking to represent the pro-
duction and maintenance employees. On February 28 the
Union won the election directed by the Regional Direc-
tor and the Certification of Representative issued on
March 7.
The chief employee organizer at the plant was John
Sayllor, who first contacted the Union and secured union
authorization cards to be distributed among the employ-
ees. Assisting Sayllor was alleged discriminatee Pitts.
The extent of Pitts' activity is actually unknown. While
he testified that he distributed employee authorization
cards with Sayllor, there is no evidence that this was
done in an open and obvious fashion which would
charge Respondent with constructive knowledge of the
activity. Employees Pitts, Sayllor, and Pangburn testified
that Pitts was the most vocal of the union protagonists,
but this testimony was so generalized and conclusionary
that it is probative of nothing.
However, Raufeisen admitted that he had suspected
that Pitts was one of the chief union adherents and Re-
spondent does not defend this action on lack of knowl-
edge of Pitts' union activities, whatever its extent.
The General Counsel relies on the letter-writing cam-
paign conducted during the pendency of the petition by
Respondent and certain conduct of Raufeisen as evidence
of unlawful animus against the employees' union activity.
During the election campaign Respondent, by Raufei-
sen, sent four letters to all employees and prounion Su-
pervisor Bezmek. In each of these Respondent strenuous-
ly expressed its opposition to the organizational attempt,
repeating in each the theme: "You don't need a union."
These remarks are not of themselves violative of Section
8(a)(l) of the Act,2 and cannot be said to supply the evi-
dence of animus necessary to support the General Coun-
sel's case herein.
The conduct, in addition to sending the letters, upon
which the General Counsel depends for a finding of un-
lawful animus is alleged in the complaint as a violation of
Section 8(a)(l) thusly:
5. Since on or about January 1, 1980, Respondent
visually harassed employees by closely scrutinizing
their work.
Pitts and employees Sayllor and Stajduher credibly testi-
fied that, after the petition was filed, Raufeisen stood
around watching them work more frequently, and for
longer periods, than he had done theretofore. While this
testimony is most generalized, it is essentially undisputed.
Raufeisen testified that he needed to be in the plant more
during the period of early 1979 to August 1980 because
Respondent was having difficulty filling orders for tank
covers. Although repeatedly asked by his counsel why
such activity would have increased particularly during
a Hospital Service Corporation d/b/a Blue Cross, 219 NLRB 1 (1975).
the months of January and February 1980, Raufeisen
could give no cogent reason.
Therefore I find, as a proposition of fact, that, after
the petition was filed on December 26, Raufeisen did in-
crease the frequency and duration of his observation of
the employees working and that he did so because the
petition had been filed and the employees had been en-
gaging in union activity.
However, there is no contention that this activity
made the employees' work more onerous. Therefore, no
violation of the Act can be found on that basis.
At the hearing I specifically asked counsel for the
General Counsel if there was any case authority for the
proposition that an employer's observation of employees
while working could ever be violative of the Act. Coun-
sel conceded that there was none. Moreover, since an
employer has the right to watch employees to see if they
are working efficiently or working at all, it seems impos-
sible to fashion an enforceable order which would pro-
scribe only watching employees because some or all of
them had engaged in, or might engage in, protected
union activity.
Accordingly, I shall recommend dismissal of this alle-
gation of the complaint.
The Discharge of Pitts
On February 8, Pitts attempted to purchase coffee
from a vending machine in the plant lunchroom. The
machine, according to Pitts, cheated him out of 20 cents.
Pitts drew up and posted on the machine the following
notice:
This fuking
machine owes
Rick 20¢
When Raufeisen saw the note, he took it down, made a
photocopy of it, and put the photocopy on the machine
with the following notation: "2/8/80 . . . FR has origi-
nal . . . owes Rick 20¢."
Later that day Pitts saw what Raufeisen had done and
placed another notice up stating:
R.P. WILL GIVE
YOU ANOTHER ONE
IF YOU WANT
THIS FUCKIN
MACHINE OWES
RICK 20¢
When he reported to work on February 11, Pitts was
instructed by Supervisor Wetley to report to Raufeisen's
office. When asked on direct examination to recount
what happened when he arrived in Raufeisen's office,
Pitts testified:
He told me I was fired and he told me-I asked
him for what and he told me it was for obscenities,
using obscenities and he had my check ready, paid
up to 10:00 and this was about 8:30, quarter to 9,
and I talked to him and I said-I asked him, you
1424
KENCO PLASTICS COMPANY, INC.
know everything that happened. He had a piece of
paper in his hand, a photostatic copy, and he threw
it at me and said give it to Janssen and he threw it
across the desk at me and I said I want to make one
thing clear. Everything that happened in this, the
reasons why I was fired, happened on my time, not
Company time and he said he didn't care, it hap-
pened on Company property.
Raufeisen testified on direct examination that he told
Pitts he was being discharged "for profanity and unac-
ceptable general behavior." Raufeisen also filled out on
that date an "Employee Warning Report" which listed
as a "violation" the use of profanity. In a box on the
report labeled "Company statement," Raufeisen wrote:
"Confronted Mr. Pitts with attached matl. He confirmed
it to be his. Terminated him for use of profanity."
I asked Raufeisen if he gave Pitts any reason other
than profanity and unacceptable general behavior as
being the reasons for the discharge. Raufeisen replied
that he had not. Thereupon Raufeisen was questioned by
his counsel and testified thusly:
Q. (By Mr. Curran) What were the specific rea-
sons why you fired Mr. Pitts?
A. I fired Mr. Pitts because he-I judged him to
be a very poor quality employee. His attendance
record was atrocious. His perpetual loitering around
the plant became intollerable. [sic] His threats to
fellow co-workers, his stealing and excessive use of
profanity.
Raufeisen was thereupon asked to explain what he meant
by each of these reasons. In appraising these answers it is
important to note that Raufeisen admitted that he has an
established progressive disciplinary procedure which he
uses "generally" and which involves three warnings and
two suspensions before discharges take place. Except for
the offense of loitering it is undisputed that Pitts received
no warnings regarding any of his prior conduct.
In support of its contention that Pitts had poor attend-
ance, Respondent introduced evidence which reflected
that, during the third quarter of 1979, out of 13 weeks in
which Pitts was scheduled to work a full 40-hour week,
he worked only 7. In the fourth quarter he only worked
5. In the 7 weeks of the first quarter of 1980 that Pitts
was employed by Respondent he put in a 40-hour week
only twice. In regard to loitering, Raufeisen testified that
it was a "common occurrence" for Pitts to loiter rather
than work although he admitted that he could put no
number of the times he had witnessed Pitts loitering.
Raufeisen issued a warning letter to Pitts dated January
21 stating: "Time and again I have observed you loiter-
ing around the plant. Be advised, this will not be tolerat-
ed. This is warning number one." When asked why he
issued a letter on that particular date, Raufeisen stated it
was about that time he was spending more time at the
plant and that Pitts "was spending far more time away
from his work station than he had done on previous oc-
casions." Pitts received no further warnings for loitering.
To support his contention that "threats to fellow co-
workers" was a part of the basis for the discharge, Rau-
feisen cited only one threat, that to the draftsman, James
Robinson. On February 1, Pitts had received a telephone
call during his lunch break. The call lasted 7 minutes
past the buzzer which signaled the end of the lunch
break. Robinson told Raufeisen that Pitts had overstayed
his lunch period. Raufeisen made a notation on Pitts'
timecard which not only had the effect of docking Pitts
for the time spent talking, but also cost Pitts his weekly
bonus. This bonus is an incentive of 15 cents per hour
which is awarded when an employee works a complete
40-hour week. On the following day, Friday, February 1,
Pitts confronted Robinson. Pitts was asked on direct ex-
amination and testified:
Q. (By Mr. Loomis) What did you and Mr. Rob-
inson say to each other the day you discussed it?
A. We got into an argument. I come back from
lunch and I told him it was a lousy thing to do and
I was going to kick his ass.
Q. Did he say anything to you?
A. He said I wasn't shit and I said lets go outside
and the buzzer rang and I punched in.
On cross-examination, Pitts testified that Robinson had
threatened him also. When asked specifically what that
threat was, Pitts answered:
As I previously said, that I told him-I told him
I was going to kick his ass and lets go outside and
he told me I was a shit and no problem. He said he
wanted to fight, but then he wouldn't go outside. I
didn't physically touch him.
JUDGE EVANS: He said you weren't shit and
there was no problem but he didn't ask you to go
outside?
THE WITNESS: No, he didn't ask me to go out-
side.
When asked specifically if "going outside" did not mean
going out and fight Pitts testified: "Even if he stepped
outside, we could still talk." Pitts was then asked and
testified:
Q. (By Mr. Curran) I presumed that during this
confrontation you were pretty mad at him?
A. Not real-not killing mad, no.
To the extent Pitts attempted to deny that "stepping out-
side" meant anything other than fisticuffs, I discredit
him. Moreover, it is clear that Pitts was in a rage (al-
though possibly not "killing mad"), and did threaten
Robinson. Specifically, it is clear that I should credit,
and I do, the testimony of Robinson which he gave
when called by Respondent that Pitts "[a]sked me to step
outside so he could kick my ass up one side of the street
and down the other."
The incident between Pitts and Robinson was reported
to Raufeisen that afternoon. Raufeisen secured statements
from Robinson and from Supervisor Wetley, who was
present for part of the incident.3 The statement, again
3 Wetley did not testify and I will not consider and need not quote the
content of his report submitted to Raufeisen since the basis thereof is un-
known because it is not clear what part of the incident Wetley actually
witnessed.
1425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
completed on an "Employee Warning Report" form,
signed by Robinson, recites:
Richards [sic] Pitts used foul language and threat-
ened to "kick my ass up one side of the street and
down the other," because "I made him lose his
bonus."
Although he received statements from both Pitts and
Wetley on February 1, Raufeisen did nothing to disci-
pline Pitts. When asked on direct examination why Pitts
was not terminated that day, Raufeisen stated that he had
been receiving advice on proper and improper actions
during the union campaign and:
Under normal conditions, I would simply, the fol-
lowing Monday, have terminated Mr. Pitts. In this
case, I held back. I wanted to very carefully evalu-
ate in my mind the facts in the matter. I wanted to
be sure we were not creating an incident resulting
in what we are going through today. I wanted [no]
shoot off the [hip] kind of thing, so I procrastinated,
if you will.
The allegation of theft also depends on Robinson's tes-
timony. Robinson testified that around the first of the
year he witnessed Pitts taking a length of pipe and re-
moving it surreptitiously to his automobile. Robinson tes-
tified further that he reported the incident to Supervisor
Wetley and that later he was asked about the incident by
Raufeisen. According to Robinson, Raufeisen asked Rob-
inson if he wanted "to get involved and make a report."
Robinson testified that he refused stating, "I would
rather forget the whole thing because it was a $2 or $3
item and I was afraid for myself." When asked why he
was afraid for himself, Robinson replied: "Because I had
been threatened earlier and . . . I was afraid of retali-
ation because of it." Of course, the threat by Pitts to
Robinson occurred at least a month after the alleged
theft. It is clear, therefore, that Robinson was distorting
his testimony in an effort to assist Respondent in this
case even though, as he testified, he was to be laid off
the day after the hearing. Pitts credibly denied taking
any company property without permission. Specifically,
he testified that once, at a time before the union activity
began, he was given permission to remove a piece of
pipe by supervisor Bezmek. Supervisor Bezmeck was not
called by Respondent to refute this testimony.
Raufeisen testified that he did not say anything to Pitts
because of Robinson's refusal to stand by his story. At
any rate, there was no further investigation of the matter
and nothing said to Pitts about it.
B. Conclusions
Here the actions of Respondent are extremely suspi-
cious. Respondent has a system of progressive discipline
of which Pitts was not given the benefit. The sole excep-
tion was the "first" warning for loitering issued by Rau-
feisen on January 16. But there was no probative evi-
dence of any subsequent loitering. Therefore, to the
extent Pitts' loitering on January 16 was a part of the
decisional basis for the discharge, it was a case of "one-
strike-and-you-are-out."
The alleged theft of property simply was not proved
by Respondent.
Pitts' attendance may have been less than Respondent
desired, but there was no contention that it was any
worse than that of any other employee, and the existence
of a problem had not even been mentioned to Pitts.
Rather, Respondent appears to have been content with
simply denying Pitts his attendance bonus and letting it
go at that.
The confrontation with, and the threat to, Robinson
was ignored for 10 days, even though Raufeisen had two
written statements that it had occurred by the close of
business on February 1. Thus, Pitts' misconduct was con-
doned by Respondent.
The posting of the obscene notices by Pitts was clearly
just cause for discharge. While the General Counsel's
witnesses credibly testified that the particular obscene
word was bandied about the plant regularly, and had
been seen on the restroom wall, there was, of course, no
contention that the particular word, or any other obscen-
ity, was ever posted before at the plant.
Therefore, had Respondent simply discharged Pitts for
putting up the first notice, and argued before the Board
that this was the only reason for the discharge, this case
would present no serious question.
However, there are two problems: First, Raufeisen put
a photocopy of the first notice back up on the machine.
Second, Raufeisen advanced a multiplicity of other rea-
sons to be shown as cumulative deficiencies in Pitts' per-
sonality and work history.
Of course, advancing a multiplicity of inadequate rea-
sons for discharge has always been held by the Board
and the courts as an indication that the real reason lies
elsewhere; and, where the discharge is effectuated in a
context of prior or concurrent unfair labor practices, the
Board and the courts will find that the real reason is an
intention to discriminate because of union activities.'
But here there is no evidence of unlawful motivation,
and the timing of the discharge is related to no particular
union activity which would raise an inference of unlaw-
ful motivation.5
Raufeisen's posting of the photocopy of the first ob-
scene notice raises a hard question. Raufeisen acknowl-
edged that Pitts was the only "Rick" in the plant, but
testified that he put the copy on the machine because he
was not sure it was Pitts who had placed the notice
there and he thought this would be a good way to find
out. This makes no sense. I doubt that there was any
doubt, but if there had been Raufeisen could simply have
asked Pitts about the matter. Therefore, Raufeisen's han-
dling of the matter is inexplicable in any logical terms,
but it still cannot be logically concluded that Raufeisen,
by reposting the obscenity, demonstrated that he ap-
proved of (or condoned) Pitts' conduct.
Respondent is not on trial for the way it investigates
misconduct which has nothing to do with protected ac-
' See Shattuck Denn Mining Corporation (Iron King Branch) v
N.L. R B.. 362 F.2d 466, 470 (9th Cir. 1966).
s Cf. Union Camp Corporation Building Producit Div, 194 NLRB 933
(1972)
1426
KENCO PIASTICS COMPANY, INC
tivities. Nor should a Board order be issued, in effect, be-
cause Respondent's defense is an exercise in lily-gilding.
The most that could be made of Respondent's defense,
and its handling thereof, is that it is suspicious, as men-
tioned before. But, as stated by Administrative Law
Judge Silberman, and adopted by the Board in McMullen
Corporation. d/b/a Briarwood Hilton, 222 NLRB 986, 991
(1976):
The employer's explanation for a discharge is a
factor which is weighed in determining whether the
action was unlawful. However, a feeble reason for
the termination, alone, or together with evidence
that the employer knew of the dischargee's union
sympathies and was opposed to an ongoing organi-
zational campaign, does not spell out an unlawful
discharge. To find a violation of Section 8(a)(3) the
evidence must permit a positive finding (which may
be based on circumstantial evidence) that union ac-
tivity was a contributing factor in the decision to
discharge the employee. Suspicion that such was
the case is not enough.
Moreover, since there is a complete absence of evidence
of unlawful motivation, the sine qua non of 8(a)(3) cases,6
the suspicion engendered cannot serve as a predicate for
a conclusion that Respondent's real reason was the pro-
tected union activity of Pitts.
Accordingly, I find and conclude that Respondent has
not violated Section 8(a)(1) or (3) of the Act by either its
issuance of a warning notice to Pitts on January 217 or
its discharge of Pitts on February I1.
[Recommended Order for dismissal omitted from pub-
lication.]
Borin Packing Co. Inc., 208 NLRB 280 (1974)
'As well as a lack of animus which would support a finding of a viola-
tion in regard to that warning notice, the General Counsel also failed to
prove that Pitts Aas noi loitering at the time in quesilon
1427