Medeco Security Locks

National Labor Relations Board - Board Decisions

Sep 29, 1995

319 N.L.R.B. 224 (N.L.R.B. 1995)

224
319 NLRB No. 36
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
We also find no merit in the Respondent’s allegations that the
judge’s resolutions of credibility, findings of fact, and conclusions
of law are the result of bias and prejudice. There is no basis for
finding that bias and prejudice exist merely because the judge re-
solved important factual conflicts in favor of the General Counsel’s
witnesses. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656, 659
(1949).
1 All dates are in 1994 unless otherwise specified.
2 Bullock was no longer employed by Respondent at the time of
his testimony.
Medeco Security Locks, Inc. and International
Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO. Case
11–CA–16215
September 29, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On July 21, 1995, Administrative Law Judge How-
ard I. Grossman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Medeco Security Locks,
Inc., Salem, Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Michael W. Jeannette, Esq., for the General Counsel.
Clinton S. Morse, Esq. and Todd A. Leeson, Esq. (Woods,
Rogers & Hazelgrove), of Roanoke, Virginia, for the Re-
spondent.
Charles J. Van Dellen, Treasury Secretary District 1, of Ben
Mountain, Virginia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
original charge was filed on September 23, 1994,1 by Inter-
national Union of Electronic, Electrical, Salaried, Machine
and Furniture Workers, AFL–CIO (the Union). Complaint
issued on October 24, and was twice amended before the
hearing and again at the hearing. It alleges that Medeco Se-
curity Locks, Inc. (Respondent or Company) restricted its
employees’ communications with other employees regarding
the terms and conditions of their employment, and threatened
employees with discipline for communicating such terms and
conditions to other employees, in violation of Section 8(a)(1)
of the National Labor Relations Act (the Act). The complaint
also alleges that Respondent changed the shift assignment of
employee William C. Folden and later discharged him be-
cause of his union activities, in violation of Section 8(a)(3)
and (1) of the Act.
A hearing was held before me on these matters in Roa-
noke, Virginia, on March 16, 1995. Thereafter, the General
Counsel and the Respondent filed briefs. Based on the entire
record, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Virginia corporation with a facility at
Salem, Virginia, where it is engaged in the manufacture of
locks. During the 12 months preceding issuance of the com-
plaint, a representative period, Respondent purchased and re-
ceived at its Salem, Virginia facility goods and raw materials
valued in excess of $50,000 directly from points outside the
Commonwealth of Virginia. Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Work History and Union Activities of
William C. Folden
Folden had been an employee for about 18 years prior to
his discharge in May 1994. He had previously been a super-
visor for about 3 years. Stephen Bullock, his supervisor, tes-
tified that he was a good employee who had not received any
written warnings.2
There was a union campaign in 1993 in which Folden was
active. He was an observer at a Board election (which the
Union lost). Union official Charles Van Dellen testified that
Folden was one of the most vocal participants in the 1993
campaign. Supervisor Bullock testified that Folden told him
about this activity.
The Union began another campaign in late 1993. Super-
visor Bullock testified that, in January 1994, Folden told him
that he had been contacted by the Union, but that they would
have to do without him. Manager of Human Resources Diane
Ward gave similar testimony. Folden denied telling Bullock
that the Union would have to do without him, but agreed
that, in late 1993, he told Bullock that he was not interested
in any further organizational activity. Nonetheless, Folden at-
tended union meetings during the 1994 campaign and ob-
tained signatures on authorizations cards in the parking lot.
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225MEDECO SECURITY LOCKS
3 Bullock interpreted several pages of its QS-1 records (R. Exh. 1).
Thus, on the ‘‘Guage Diagnostic’’ test, Folden made scores of 68,
89, 81, and 68 (R. Exh. 1, p. 1, column ‘‘K’’). Scores of other em-
ployees are shown.
4 R. Exh. 13.
5 One of the other level III inspectors was Frank Butler. The tran-
script records the name of the third level III inspector as Mike
Ferrell. Respondent contends that the correct name is Mike Furrow
(R. brief, p. 6, fn. 2). The individual identified as ‘‘Mike Ferrell’’
in the transcript testified and examined a company document con-
taining QS-1 test scores. He identified, as his, certain scores for em-
ployee ‘‘Mike Furrow.’’ For this reason, I conclude that Respond-
ent’s position is correct, and I hereby change the name ‘‘Ferrell’’
to ‘‘Furrow’’ wherever it appears in the transcript.
6 G.C. Exh. 5. The complaint alleges the last paragraph to be vio-
lative of the Act (G.C. Exh. 1(g), par. 8). Respondent used the term
‘‘Team Medeco’’ to describe all company employees.
Dennis Taggert, vice president of human resources, testi-
fied that he learned of the new campaign, and discussed it
with counsel in December 1993. He decided to show films
to the employees. According to Folden, they portrayed union
violence. Taggert testified that he instructed his supervisors
to tell employees not to sign union cards. According to Bul-
lock, the supervisors discussed information learned from the
plant floor and cards picked up in the restroom.
The Company was engaged in a process which it called
‘‘team building.’’ In this connection, it held ‘‘cross func-
tional’’ meetings, and one was held on February 4. Folden
was present, and stated that supervisors were there. An em-
ployee named Norma Dowdy told him that she had to make
a report of the meeting to the Company’s president. Dowdy
acted as chairperson in the absence of the regular chair-
person. According to Folden, Dowdy asked him how the
union campaign was going and whether the Union had
enough cards to file a petition.
Folden later discussed this matter with Supervisor Bullock
and said that he thought Dowdy’s inquiry was inappropriate.
Bullock asked why the employees wanted a union, and
Folden replied because of unfairness and favoritism. Bullock
suggested that Folden speak with Vice President Taggert, and
Folden did so.
B. The ‘‘QS-1’’ Employee Training Program
The record contains evidence of two systems of training
and testing employees. Respondent contends that Folden mis-
represented its position regarding one of these tests, in that
he erroneously stated that the Company relied upon the test
results as a reason for transferring him to another shift. Ac-
cordingly, a description of the testing is necessary.
The Company instituted a program of employee training in
1992. It developed employee skills in statistical process con-
trol, gauges, and micrometers and blueprints. Its short name
was ‘‘QS-1.’’ Employee attendance was voluntary, but the
Company emphasized it and gave a pay increase to employ-
ees who passed. Company Vice President Taggert stated that
98 percent of the employees were involved in this program.
The relevant issue regarding the QS-1 program was wheth-
er employees could be compared on the basis of their relative
scores. Bullock testified on direct examination that the QS-
1 tests could not be used to compare employee performance,
because the employees did not all take the same tests—some
were exempted from certain tests based on other test scores.
It was a ‘‘pass or fail’’ test, according to Bullock. Human
Resources Manager Diane Ward asserted that QS-1 scores
were not even recorded. Nonetheless, on cross-examination,
Bullock agreed that it had records of the QS-1 tests which
showed some employees who were exempt from certain
tests, but showed the scores of other employees on the same
test.3 Team Leader Dickie Huff corroborated this. I accept
this testimony as accurate.
C. The Quality Control Department and Training
Bullock started with the Company in August 1993 and
was manager of the Quality Control (QC) Department, with
about 11 employees. He decided to improve employee skills
and developed three levels of quality inspectors.4 Employees
were given the opportunity to select the level at which they
wished to operate. Folden and two other employees elected
to be classified at level III, the highest level.5 They were so
classified in January 1994.
The employees were given several weeks of training prior
to taking the GD&T (Geometric Dimension & Tolerance)
test to measure their skills. Folden missed the last two train-
ing sessions because of illness, but nonetheless took the test
on April 7. He scored 68.5 percent, the lowest score. There-
after, the employees voted that 70 percent was a passing
score. It was the employees who made the determination
based on Bullock’s philosophy of ‘‘team building.’’
Bullock asserts that he told Folden he had to retake the
test within 5 days, and that he had to make a score of 80.
Folden contends that Bullock said he would schedule a sec-
ond test within a few weeks. Folden studied the material he
missed, with the assistance of Mike Furrow.
On April 20, Bullock met with Folden and handed him a
memorandum. After reciting the Company’s version of the
events, it reads in part:
CORRECTIVE ACTION
Must retake the GD&T exam by April 23, 1994. A
passing score of 80 or above will result in retaining a
Level III classification. A score below 80 but above 70
will demonstrate the inability to perform at Level III re-
quirements, as called out in the job description, and re-
sult in a forced downgrading to Level II. A score below
70 (team agreed passing score) will result in termi-
nation from the QC department based on lack of per-
formance to comply to minimal job responsibilities of
a Level II.
CONFIDENTIALITY STATEMENT
This conversation between Steve Bullock (QC Man-
ager) and Folden (Quality Assurance Technician) in re-
gard to Billy’s performance (per his chosen job descrip-
tion) and the corrective action that must take place no
later than April 23, 1994 is strictly confidential. Any
sharing of this information with any other member(s) of
Team Medeco will be interpreted as disruptive in nature
and result in termination as per the Medeco handbook.6
Bullock told Folden that he would be considered the least
qualified of the Level III inspectors because of the additional
time to take the second test. Folden took it again within the
prescribed time and scored 86.
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226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 R. Exh. 14.
8 G.C. Exh. 2, p. 28.
9 R. Exh. 1.
10 Ibid.
11 R. Exh. 15.
12 Softech, Inc., 306 NLRB 269, 271 (1992).
D. Folden’s Transfer to the Second Shift
1. Summary of the evidence
There were seven QC inspectors on the first shift, two on
the second, and one on the third. One of the second-shift in-
spectors was transferred to the first shift, and another was
transferred to another department. Bullock decided to elimi-
nate the third shift, transferred the third-shift employee to the
first shift, and asked for a volunteer to staff the second shift.
Nobody volunteered, and Bullock agreed that the second
shift was not popular.
Bullock then asked the seven QC employees on the first
shift to vote on a plan whereby the second shift would be
staffed by rotation every 6 weeks. Folden opposed this meth-
od of selection and asked for a secret vote. According to
Folden, this made Bullock angry. Folden did not vote, and
the first result was 4 to 2 in favor of rotation. Two employ-
ees however, changed their minds and asked for a second
vote. Folden participated in this vote, and the result was op-
posed to rotation. According to Folden, Bullock accused him
of swaying the opinions of the technicians.
The Company posted an opening for a QC position on the
second shift on April 29. Included in the requirements were
completion of the QS-1 and GD&T programs.7 There was no
response to the posting.
Folden had a conversation with Bullock after he had taken
the GD&T test a second time, with a score of 86. Folden tes-
tified that Bullock told him that the QS-1 and GD&T tests
would determine ‘‘who was qualified to move to the second
shift or least qualified to move to the second shift.’’ Folden,
who had been on the first shift during his entire employment
and had plantwide seniority among the QC employees, told
Bullock that he would not go to the second shift. Bullock re-
plied that Folden would either be ‘‘off the team or on the
team.’’ He added that he would determine the transfer to the
second shift in accordance with the Company’s handbook.
The handbook provided for the Company’s response to re-
quests for a change of shift by certain designated employees,
not including QC technicians. The handbook continued: ‘‘For
all other positions, shift assignment will be based on business
needs, length of service within the classification and the indi-
vidual’s qualifications.’’8
Bullock agreed that he had conversations with the three
Level III technicians on the method of deciding the transfer
issue. He told Folden that the only ‘‘qualifiable’’ data he had
were the GD&T test results. Bullock again told Folden that,
because the latter had to take the test a second time, he was
the least qualified of the Level III inspectors. Bullock denied
referring to the QS-1 scores as factors to be considered in
making his decision.
Mike Furrow’s GD&T test score was lower than Folden’s
second score of 86. Furrow met with Human Resources
Manager Diane Ward and protested that the test scores
should not be used to make a transfer decision, since this
was not contemplated when the GD&T program was an-
nounced.
Furrow also went to QC Manager Bullock and made the
same argument. He stated that, because his score was lower
than Folden’s second score, he should be the one transferred
to the second shift. Bullock denied that this would be appro-
priate, since he would have to give Furrow a second oppor-
tunity to take the test. Bullock showed Furrow some QS-1
scores and said, according to Furrow: ‘‘I could get real shitty
about this, since Mr. Folden did not take the comparative
section of the QS-1 testing, which was not required.’’
On cross-examination, Furrow was asked whether he knew
what he had scored on the QS-1 test. Furrow initially stated
that he did not know. Counsel then showed him three sheets
of paper purporting to be copies of QS-1 test scores and
asked him to identify them. Furrow replied that they were
the scores that Bullock showed him and added that another
employee (Hal Williams) had prepared the copies for Bul-
lock. Based on this identification, Respondent introduced the
documents into evidence.9
Asked again whether his QS-1 scores were higher or lower
than Folden’s, Furrow replied that they were higher. Asked
to explain this, Furrow replied: ‘‘I’m looking at 68 on Mr.
Folden’s to 96, 96, 89, 81, 81, 71, 68, 94’’ and said that he
was looking at page 1 of the exhibit. As previously de-
scribed, Folden’s test scores on the gauge diagnostic test, on
page 1, were 68, 89, 81, and 68. Furrow also had four scores
for this test: 96, 81, 71, and 94.10
Bullock agreed that he talked with Furrow about the trans-
fer issue and said that Furrow stated that the procedure Bul-
lock was using was not fair. Bullock denied that he told Fur-
row he would base his decision on both the QS-1 and GD&T
results.
Bullock transferred Folden to the second shift on May
17.11
2. Factual analysis
Furrow correctly identified the first number which appears
on the Company’s report of Folden’s test scores on the gauge
diagnostic test. Although Furrow gave seven numbers as his
own scores on this test, he included the four actual scores
recorded on the exhibit. It is highly improbable that Furrow’s
recitation at the hearing of Folden’s first test score and four
of his own could have been the result of guesswork. Al-
though he included three extraneous scores, one was a repeti-
tion, and the other two may have been mistakes in reading
or transcription.
There is thus no way that Furrow could have known these
scores unless somebody showed them to him. I conclude that
Bullock did show them to Furrow—indeed, this is one of Re-
spondent’s exhibits identified by Furrow. It supports Fur-
row’s testimony about his conversation with Bullock. Furrow
was a current employee at the time of his testimony, and it
is unlikely that he would be stating something which was
false.12 I credit his version of the conversation with Bullock.
Furrow stated his belief that Bullock would use both test
scores in making the transfer decision.
The fact that Bullock made these statements to Furrow
tends to support Folden’s testimony that Bullock made sub-
stantially the same statements to Folden. I credit the latter’s
testimony as to the remarks he attributed to Bullock.
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227MEDECO SECURITY LOCKS
13 G.C. Exh. 6.
14 Bullock testified that Ward was a supervisor.
15 Bullock confirmed that there was an open door policy.
16 QC Manager Bullock confirmed that Benji Smith was a super-
visor.
17 Respondent’s brief quotes this testimony as ‘‘test scores,’’ thus
suggesting that Folden implied to Furrow that both scores were con-
sidered. R. brief, p. 14, fn. 7. Although Furrow testified that he told
Human Resources Manager Diane Ward that ‘‘test scores’’ should
not be used, he did not use the plural form in describing Folden’s
explanation.
18 G.C. Exh. 7.
19 R. Exh. 19.
E. Folden’s Discharge
Furrow testified that employees in the plant asked him
why Folden had been transferred. He replied, ‘‘Test scores.’’
To a plant employee, Furrow and Bullock both averred, this
meant the QS-1 test, since plant employees did not take the
GD&T test.
Furrow agreed that he told Respondent’s counsel in a pre-
trial interview that the plant was upset after the transfer.
There was a rumor ‘‘buzzing in the plant’’ that the Company
transferred employees based on ‘‘low test scores.’’ By this,
Furrow stated, he meant the QS-1 test. Dickie Huff, a team
leader in another section, testified that when the QS-1 pro-
gram first started, the employees believed that it would be
used for some purpose in addition to providing a wage pre-
mium. Human Resources Manager Diane Ward testified that
plant employees asked whether they could be bumped to an-
other shift based on their QS-1 scores.
Bullock also heard such rumors, and arranged with Human
Resources Manager Diane Ward to publish a newsletter cov-
ering various issues. The last paragraph reads:
If you get a low score on QS-1, can you be ‘‘bumped’’
to another shift? No, shift assignment is determined by
the following: business needs, seniority in the classi-
fication, and qualifications To date, no team member
has been bumped to an off-shift because of QS-1 test
scores.13
Folden read this statement on May 26, and tried to reach
QC Manager Bullock by phone. He was not available, and
Folden spoke with Matt Ward, a supervisor.14 He said that
he did so under the Company’s ‘‘open-door’’ policy, where-
by an employee could approach a supervisor with a prob-
lem.15 After drawing Ward’s attention to the statement,
Folden told him that it was ‘‘untrue’’ and not what he had
been led to believe. Ward testified that Folden told him that
the statement ‘‘wasn’t true,’’ and that the QS-1 test was the
reason he was on the second shift. That evening, Ward re-
peated this to his wife, Diane Ward.
Folden next spoke to Second-Shift Supervisor Benji
Smith.16 He repeated his statement to Ward, that the QS-1
test had played a part in his being on the second shift. Smith
told him to get the matter resolved ‘‘through the chain of
command.’’
The only evidence of Folden’s communication about the
reason for his transfer to anybody other than supervisors is
his response to Furrow’s question as to why he was trans-
ferred. ‘‘Test score,’’ was Folden’s response.17
Vice President of Human Resources Dennis Taggert testi-
fied that he was not aware that Folden had talked to anybody
except Supervisors Matt Ward and Benji Smith. Diane Ward
affirmed that none of the employees who spoke to her about
the QS-1 test mentioned Folden’s name.
The next day, May 27, Diane Ward reported to QC Man-
ager Bullock what Matt Ward had said to her. According to
Bullock, Ward reported to him that Folden had said the state-
ment in the newsletter was ‘‘a lie.’’ Bullock consulted with
Supervisors Smith and Ward and received similar informa-
tion. He decided to hold a meeting of the inspectors about
noon.
Folden, who was on the second shift, was not present. Ac-
cording to Bullock, he asked why Folden had been sent to
the second shift. ‘‘Because of test scores,’’ Furrow answered.
‘‘Which tests?’’ Bullock asked. Furrow replied: ‘‘QS-1 and
GD&T.’’ Bullock denied this and said that the GD&T test
was the only one considered. Furrow and another employee
urged that the plant employees were confused, but Bullock
replied that everything was ‘‘very clear’’ and ended the
meeting. According to Furrow, Bullock said that he had a
‘‘pretty good idea’’ of the source of the rumors.
Bullock then told Company Vice President Taggert that he
wanted to fire Folden for dishonesty and received approval
if his information was accurate. Bullock and Production
Manager Robert King met with Folden on the afternoon of
May 27. Bullock claimed that he asked Folden whether he
had been telling people on the floor that he had been trans-
ferred to the second shift because of his QS-1 score, and that
Folden replied that he had done so. Folden denied that Bul-
lock asked this question and denied that he gave the answer
attributed to him. I credit his denial. Bullock also asserted
that Folden had violated the ‘‘confidentiality’’ statement and
had been disruptive.
Bullock terminated Folden during this interview. In a
memo to Company Vice President Taggert, he summarized
his position on the QS-1 issue and the events leading to the
discharge. After reciting Folden’s statement that the QS-1
reference in the newsletter was untrue, Bullock stated: ‘‘Billy
actually told individuals in the factory that he was sent to
second shift for this reason (the QS-1 score).’’ Bullock con-
cluded that Folden was discharged because of ‘‘dishonest be-
havior.’’18 Although Supervisors Ward and Smith had prom-
ised Bullock written statements, he made his decision to dis-
charge Folden before receiving the statements.
F. Lewis Rickman
Lewis Rickman was a 10-year employee in the deadbolt
lock division. He participated in the union campaign.
Rickman sustained a head injury at work in early October
and was sent home for medication. The next day he received
a call stating that he was suspended pending his taking a
‘‘fitness for duty’’ examination at the hospital. This was the
terminology for a drug screening test. On October 3, the
Company issued a counseling report stating that Rickman
had had nine accidents in the last 3 years, and that another
would require the fitness for duty examination.19
Rickman took the test and passed it and then met with
company officials on October 10. Team Leader Donald Clark
told Rickman that it was not necessary to discuss anything.
Rickman replied that the plant already knew he had been
suspended, and that rumor was that it was because of use of
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228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Nine accidents in less than 3 years; leaving work without a su-
pervisor’s permission; and ‘‘erratic’’ behavior. The test was to pro-
tect Rickman and his co-workers. R. Exh. 20.
21 Ibid.
22 G.C. Exh. 1(j).
23 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
24 See also Pepsi-Cola Bottling Co., 301 NLRB 1008, 1041
(1991); Blue Cross-Blue Shield of Alabama, 225 NLRB 1217, 1220
(1976).
cocaine and marijuana. Rickman told Clark that he did not
appreciate being labeled a drug user.
Clark issued Rickman a memo listing the reasons for the
drug screening.20 The last sentence reads: ‘‘No discussion
pertaining to fitness for duty exam with co-workers as this
would be disruptive to our team concept and result in further
disciplinary action.’’21
The complaint alleges that the last sentence unlawfully
threatened employees with discipline for communicating with
other employees regarding terms and conditions affecting
their employment.’’22 Rickman quit in November 1994.
G. Legal Analysis and Conclusions
The General Counsel has the burden of establishing a
prima facie case that is sufficient to support the inference
that protected conduct was a motivating factor in an employ-
er’s decision to discipline an employee. Once this is estab-
lished, the burden shifts to the Respondent to demonstrate
that the discipline would have been administered even in the
absence of the protected conduct.23
Folden was a prominent member of the 1993 union cam-
paign, of which the Company and Bullock had knowledge.
Although Folden told Bullock in late 1993 that he was not
interested in any more organizational activity, he did in fact
participate in the 1994 campaign, attending union meetings
and getting signatures on union authorization cards in the
Company parking lot. At a cross-functional meeting in Feb-
ruary, an employee who reported to the Company’s president
asked Folden how the union campaign was going and wheth-
er they had enough cards to file a petition. Folden protested
this question to Vice President Taggert and to Bullock who
asked Folden why the employees wanted a union. Upon
learning of the new campaign, the Company showed films
depicting union violence to its employees and instructed su-
pervisors to tell employees not to sign union cards. These
events demonstrated company animus against the Union and
knowledge of Folden’s renewed participation in the cam-
paign.
Supervisor Bullock’s animus against Folden is further
shown by his handling of the GD&T testing. Folden angered
Bullock by opposing the latter’s plan to have ‘‘the team’’
vote on a rotation method of staffing the vacancy on the sec-
ond shift. When the second vote reversed the first and re-
jected rotation, Bullock blamed Folden, who was simply en-
gaging in the protected activity of objecting to conditions of
employment.
Bullock’s animus against Folden is shown again by his
raising the passing grade on Folden’s second examination
from 70 to 80, after initially allowing the ‘‘team members’’
to set the passing grade. In the same vein, Bullock said that
Folden would be the least qualified no matter what he
scored, because he took the examination a second time. On
this rationale, Folden would have been the least qualified if
he had scored 100. Bullock provided no reason for starting
with a team decision on passing scores, and then switching
to his own judgment when it came to Folden’s score.
When Furrow protested to Bullock that his procedure was
unfair and that he, Furrow, should be transferred to the sec-
ond shift because his GD&T score was lower than Folden’s
second score, Bullock countered by saying that he would
have to give Furrow a second test. Furrow, in fact, was vol-
unteering to be transferred to the second shift—and a request
for a volunteer was Bullock’s first method for making the se-
lection. Yet he rejected Furrow’s offer.
The Company’s handbook states that one of the factors in
making a shift transfer was ‘‘business needs.’’ With only one
QC inspector present on the second shift, it would appear to
have been in the Company’s interest to have the best quali-
fied inspector on that shift. Yet the Company selected the
one which it had designated as the least qualified.
Finally, as set forth above, Respondent informed Folden
on April 20 that any communication with fellow workers
about his conversation with Supervisor Bullock on April
20—concerning the testing procedure—would be considered
disruptive and would result in termination. This communica-
tion unlawfully restricted Folden’s right to communicate with
his fellow employees regarding the terms and conditions of
his employment, and violated Section 8(a)(1) regardless of
whether it was enforced or discriminatorily motivated. ‘‘The
Loft,’’ 277 NLRB 1444 (1986).24
I conclude that the General Counsel has established a
prima facie case that Folden’s transfer to the second shift
was discriminatorily motivated Respondent has not rebutted
the General Counsel’s case, and I conclude that the Company
violated Section 8(a)(3) and (1) of the Act by transferring
Folden to the second shift in May 1994.
The same animus against Folden establishes the General
Counsel’s case that his discharge on May 27 was unlawful.
The Company’s case against Folden is predicated on his use
of the Company’s open-door policy—he told two supervisors
that a statement in the company newsletter was untrue. In
fact, as I have found above, it was untrue—Bullock did tell
Folden and Furrow that both the GD&T and QS-1 scores
would be utilized in making the transfer decision. But this
is not as significant as the fact that the Company based its
case against Folden on a complaint that he voiced to super-
visors in accordance with company policy. Although Folden
told Furrow that his transfer was caused by his ‘‘test score,’’
this did not identify the QS-1 test. Neither Company Vice
President Taggert nor Human Resources Manager Ward had
any evidence that Folden had spoken to employees other than
the two supervisors, and Bullock’s case was based upon
these communications. As they took place the day before
Folden was fired, they could not have caused the prior tu-
mult about which Bullock complained.
The Company’s position that Folden was discharged be-
cause of ‘‘dishonest behavior’’ is thus completely without
foundation. I conclude that Folden was discharged because of
his union sympathies and activities, and that Respondent
thereby violated Section 8(a)(3) and (1) of the Act.
The warning to Rickman—that any discussion of his drug
screening test with other employees would subject him to
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229MEDECO SECURITY LOCKS
25 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 281 NLRB 651 (1977).
26 If no exceptions are filed as provided by 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
further discipline—was unlawful for the same reasons given
above in connection with a similar warning given to Folden.
In accordance with my findings above, I make the follow-
ing
CONCLUSIONS OF LAW
1. Medeco Security Locks, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Union of Electronic, Electrical, Salaried,
Machine, and Furniture Workers, AFL–CIO is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by re-
stricting employees’ communications with other employees
regarding the terms and conditions of their employment, and
by threatening them with discipline if they did engage in
such communications.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by transferring William C. Folden from the first shift to the
second shift on May 17, 1994, and by discharging him on
May 27, 1994, because of his union activities and sym-
pathies.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it be re-
quired to cease and desist therefrom, and undertake certain
action designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully trans-
ferred William C. Folden from the first shift to the second
shift on May 17, 1994, and discharged him on May 27,
1994, it is recommended that Respondent be ordered to offer
him reinstatement to his former position on the first shift
without prejudice to his seniority or other rights and privi-
leges, or, if any such position does not exist, to a substan-
tially equivalent position, dismissing or transferring if nec-
essary any employee hired or transferred to fill said position,
and to make him whole for any loss of earnings he may have
suffered by reason of Respondent’s unlawful conduct by pay-
ing him a sum of money equal to the amount he would have
earned from the date of his unlawful discharge to the date
of an offer of reinstatement, less net earnings during such pe-
riod to be computed in the manner established by the Board
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).25
I shall further recommend that Respondent be ordered to
cease and desist from ordering employees not to discuss
terms and conditions of employment with other employees
and that it be ordered to inform William C. Folden and
Lewis Rickman, in writing, that its instructions against such
communications and threats of discipline for engaging in
such discussions are rescinded and of no effect. Although
Rickman had left the Company, he may return, and in such
event the warning issued to him should no longer be opera-
tive.
I shall further recommend that Respondent expunge from
its records all reference to its unlawful transfer and discharge
of William C. Folden and inform him in writing that this has
been done, and that it will not base any future discipline of
him upon his unlawful transfer or discharge.
I shall also recommend the posting of notices.
On these findings of fact and conclusions of law and on
the entire record, I recommend the following26
ORDER
The Respondent, Medeco Security Locks, Inc., Salem, Vir-
ginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Restricting communications of its employees with other
employees concerning the terms and conditions of their em-
ployment, and from threatening them with discipline if they
engage in such communications.
(b) Discouraging membership in International Union of
Electronic, Electrical, Salaried, Machine and Furniture Work-
ers, AFL–CIO, or any other labor organization, by discharg-
ing employees or transferring them to a different shift, in re-
taliation for their union activities or by discriminating against
them in any other manner with respect to their hire, tenure
of employment, or terms and conditions of employment.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer William C. Folden reinstatement to his former
position on the first shift or, if such position no longer exists,
to a substantially equivalent position, dismissing or transfer-
ring if necessary any employee hired or transferred to fill
said position, and make him whole for any loss of earnings
he may have suffered by reason of Respondent’s unlawful
discharge of him, in the manner described in the remedy sec-
tion of this decision.
(b) Remove from its records all references to its unlawful
transfer and discharge of William C. Folden and inform him
in writing that this has been done and will not be used as
a basis for future discipline.
(c) Inform William C. Folden and Lewis Rickman in writ-
ing that its former orders to them barring them from discuss-
ing with employees their instructions from management per-
taining to the conditions of their employment, or threatening
them for doing so, are null and void.
(d) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
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230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 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.’’
(e) Post at its facility at Salem, Virginia, copies of the at-
tached notice marked ‘‘Appendix.’’27 Copies of the notice,
on forms provided by the Regional Director for Region 11,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order, what steps Respondent has taken
to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid and protection
To choose not to engage in any of these concerted
activities.
WE WILL NOT restrict communications of our employees
concerning the terms and conditions of their employment,
nor threaten them with discipline for engaging in such com-
munications.
WE WILL NOT discourage membership in International
Union of Electronic, Electrical, Salaried, Machine, and Fur-
niture Workers, AFL–CIO, or any other labor organization,
by discharging or transferring them because of their union
sympathies and activities or by discriminating against them
in any other manner.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer William C. Folden reinstatement to his
former job on the first shift, or to a substantially equivalent
one if no such job exists, and make him whole for any loss
of earnings he may have suffered, with interest.
WE WILL remove from our records all references to our
unlawful transfer and discharge of William C. Folden, and
inform him in writing that this has been done and that we
will not base any future discipline of him upon his unlawful
transfer and discharge.
WE WILL inform William C. Folden and Lewis Rickman
in writing that our instructions to them barring them from
discussing the terms and conditions of their employment with
other employees, and threatening them with discipline for
doing so, are null and void.
MEDECO SECURITY LOCKS, INC.
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