Timken Co.

THE TIMKEN COMPANY The Timken Company and International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America, UAW. Case 8-CA 11021 June 7. 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND) MIA11BI-RS JENKINS ANI) Pi-.Nt LO On February 1, 1978, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief. Re- spondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings. and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge dismissed the com- plaint in its entirety. The complaint alleged that Re- spondent violated Section 8(a)(1) of the Act by discriminatorily applying its no-solicitation/no- distribution rules so as to prevent employee distribu- tion of union literature while allowing other types of solicitation or distribution by employees; that Re- spondent violated Section 8(a)(1) of the Act through a threatening and coercive statement of Supervisor Charles White to an employee in late April or early May 1977; and that Respondent violated Section 8(a)(3) and (I) of the Act by discharging employee Robert Fruehling on May 10, 1977, because of Fruehling's union activity. Contrary to the Adminis- trative Law Judge, and for the reasons given below, we find that Respondent violated Section 8(a)(1) and (3) of the Act as alleged. In concluding that Respondent did not unlawfully apply its rules concerning employee solicitation or distribution, the Administrative Law Judge noted that Respondent's rule as published in the employee handbook was lawful on its face in that it prohibited solicitation or distribution only in work areas during working time. See, generally, Stoddard-Quirk Malnu- facturing Co., 138 NLRB 615 (1962); Essex Inierna- tional, Inc., 211 NLRB 749 (1974). In connection with Respondent's application and enforcement of its rules, the Administrative Law Judge found that on January 25. 1977, Respondent's plant manager, Rob- ert Tull, was informed that employees were passing out union literature just inside an employee entrance to the plant in the vicinity of a production line. Su- pervisor Charles Crall testified that Tull directed him to inform the employees involved that they "should pass literature out on the outside of the building." Pursuant to these instructions, Crall and a second supervisor instructed employees Clark and Redden that if they wanted to pass out literature they would have "to go outside the plant." Crall warned the two employees that if they did not go outside the plant to distribute material they would be escorted out and suspended. Shortly after this incident Crall ap- proached employee Robert Fruehling who was dis- tributing union literature in an aisle adjacent to the so-called green production area. According to Fruehling's testimony, credited by the Administra- tive Law Judge, Crall instructed Fruehling that if he wanted to continue to pass out union literature it would have to be done "outside" the plant. Based on the record before him and contrary to the General Counsel's contention, the Administrative Law Judge concluded that the areas in which these three employees were passing out literature within the plant are properly characterized as "work areas." Accordingly, the Administrative Law Judge found, and we agree. that Respondent was entitled to apply a lawful rule to employee distribution in such areas. However, in passing, the Administrative Law Judge also noted that the credited testimony of Supervisor Crall. as well as the credited testimony of the em- ployees involved in the January 25 incidents, indi- cates that Respondent's supervisors, pursuant to the instructions of Plant Manager Tull, communicated the rule to employees in a way which could lead em- ployees to conclude that all distribution of materials in the plant proper, whether in work or nonwork ar- eas, was prohibited and that only distribution "out- side the plant" was permitted. Although the promul- gation of such a rule would be violative of Section 8(a)(1),' the Administrative Law Judge declined to find the violation. In so doing, he apparently relied on the absence of a specific allegation of the com- plaint charging Respondent with a ban against em- ployees distributing literature in nonwork areas with- in the plant. We disagree. In our view the credited testimony concerning the events of January 25 warrants a find- ing that Respondent's plant manager and supervisor orally modified Respondent's published rule and that the rule as modified and communicated to employees I ;,,l).ndid ( A a ororiatl, 2{) I.RB 359. 360 (1972). Hobart Corporarlof. 228 NI RB 648 11977 236 NLRB No. 87 757 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clark, Redden, and Fruehling was plainly unlawful as a ban on employee distribution in any area within the plant. Moreover, it is well settled that the Board may find and remedy a violation even in the absence of a specified allegation of the complaint so long as the issue is closely connected to the subject matter of the complaint and has been fully litigated. See Crown Zellerhach Corporation, 225 NLRB 911, 912 (1976); Rochester Cadet Cleaners, Inc., 205 NLRB 773 (1973). In the instant case not only do the allegations of the complaint generally place in issue the lawful- ness of Respondent's rules, but also the finding of a violation predicated on the unlawful modification of the rules is largely established by the testimonial ad- missions of Respondent's own witnesses. Accord- ingly, we shall find and remedy the violation.2 We also disagree with the Administrative Law Judge's conclusion that the General Counsel failed to establish by a preponderance of the evidence that Respondent's published rules were discriminatorily applied to ban the distribution of union literature. In this connection, the Administrative Law Judge ap- pears to have glossed over the testimony of four em- ployees concerning numerous instances of employee distribution and solicitation in work areas during working hours. Thus Fruehling testified that he had been solicited for various causes and that an employ- ee sold snowmobiles within the plant and had bro- chures available at his work station. Another witness. Roger Redden, said that he had been solicited to sign a petition on gun control, to make donations for needy employees, and to make a contribution to the YMCA. Redden also testified that petitions and so- licitations occurred "quite often." A third witness, Larry Millenbaugh, testified that he saw Girl Scout cookies and Boy Scout candy sold in the plant during working time. Millenbaugh also recalled the circula- tion of a gun control petition, a collection taken up for an employee, and solicitations for Avon products. Finally, Nancy Clark named employees who sold In- dian jewelery, greeting cards, raffle tickets, and Girl Scout cookies, all these sales occurring in the plant on working time. She further testified that she herself sold flower bulbs in the plant and that Supervisor Dick Stuckert picked up and examined the catalogue from which she was selling. Although the testimony concerning in-plant solici- tation for various nonunion causes was largely un- h (hillr;ln i a .lnrinig igrees that Respondent violated the Act a.s fouind herein In so doing, he adheres to his dissent in Es.se. International. In, 21 I NL.RH 749 (1974). in thlt he would find that any prohibition of solicitaltion stated in the ambihguous phrase "working time" without further clarification is presunmptively invalid Further. Chairman Fanning would find that ans rule prohibiting distribution in work areas when work is not heing per- formed in such areas is also invalid. See his dissenting opinion in Stl,ddard- (uirk '.luunufurlring ( o.. 138 NL RB 615, 625 (1962). controverted, the Administrative Law Judge found that Respondent did not selectively enforce its rules in regard to union activity. In so doing, the Adminis- trative Law Judge reasoned that there was no "di- rect" evidence that Respondent had actual knowl- edge of these nonunion solicitations. Contrary to the Administrative Law Judge, we find that the open, frequent, and widespread solicitations described by the employees justifies drawing an inference that Re- spondent had knowledge of these nonunion solicita- tions. See, in this connection, Sunny/and Packing Company, 227 NLRB 590 (1976). Moreover, there is uncontroverted testimony that one employee handed a supervisor a flower bulb catalogue and order blanks on the work floor during worktime and that the supervisor examined this catalogue in the em- ployee's presence. We also note that Plant Manager Tull conceded in his testimony that he was aware of possible solicitations in the plant but never took any steps to investigate or prohibit them because he re- garded them as "unimportant." Accordingly, based on our conclusion that Respondent had knowledge of nonunion solicitations but did nothing to prohibit them while acting to prohibit union solicitations, we find that Respondent enforced its rule in a disparate manner in violation of Section 8(a)(l) of the Act. Walton Manufacturing Company, 126 NLRB 697 (1960). The Administrative Law Judge also concluded that employee Robert Fruehling was not discharged on May 10, 1977, because of his union activity. In reaching this conclusion, the Administrative Law Judge noted that Fruehling was absent I day in Au- gust 1975 and I day in August 1976, for personal reasons. After each absence he received an oral warning for "unauthorized absence." On August 20, 1976, Fruehling was absent again for the recorded reason of being "out of town on business." After this absence, Respondent issued Fruehling a "Final Writ- ten Warning." Fruehling was not absent again until May 7, 1977,3 when he telephoned in the explanation that he was "going out of town." It was following this absence that Fruehling was discharged. Respon- dent's official records state the discharge was for "an unauthorized absence" and failure to "heed the Final Written Warning." The next scheduled day' of work for Fruehling fol- lowing his May 7, 1977, absence was May 9. Upon 'The Administrative Law Judge found that Respondent has flexible dis- ciplinary procedures although the normal progression is from an "oral warning" (which is nonetheless written up and included in the employee's personnel file) to a "final written warning" (which is also included in the employee's personnel file but with the employee also receiving a copy). However. there is no set number of oral warnings required before a written warning is issued and an oral warning may even issue after a final written warning. Also., discipline short of discharge can be meted out after a final written warning 758 THE TIMKEN COMPANY his arrival on that day, Supervisor Lee Orweiller asked Fruehling where he had been on May 7. Ac- cording to Fruehling's testimony, credited by the Ad- ministrative Law Judge, Fruehling asked Orweiller it this was an official request or just passing the time of day.4 Orweiller said that he had to know and Fruehl- ing responded that he did not wish to say why he had been absent. Orweiller did not press the issue. Later during the same shift, Orweiller asked Fruehling to come to his office where Orweiller again asked Fruehling the reason for his absence. Fruehling re- peated that he had been out of town and that he felt that was sufficient reason, and he thought "anvmore kind of reason would be something like, something almost running my life." Orweiller made a written report of his conversa- tion with Fruehling, which he forwarded to Shift Su- perintendent Frank Lambert. The report contained no recommendation for any disciplinary action against Fruehling. After reviewing Fruehling's per- sonnel folder, Lambert forwarded the written report to Plant Manager Robert Tull along with an oral rec- ommendation that Fruehling be discharged. Tull conceded he was aware of and concerned about Fruehling's union activity. Accordingly. Tull consult- ed with higher management officials who in turn consulted with Respondent's attorney. The decision to discharge Fruehling was finally made around 2 p.m. on May 10. Shortly after Fruehling reported to work, he was called into Lambert's office and ad- vised of his discharge. Fruehling asked about his rec- ord of absences and Lambert read them off to him. Thereafter, Fruehling was escorted from the plant. Based on Fruehling's record of unauthorized ab- sences, the Administrative Law Judge concluded that Fruehling was not fired for his union activity, but was fired for good cause. We disagree. At the outset we note that Fruehling was a known union activist. He was one of the three employees observed by the Employer passing out union literature who was ap- proached by a supervisor and told to go outside. He was also the subject of a threat made by Supervisor Charles White shortly before the discharge. White remarked to another employee as Fruehling passed by: "That's one fellow we don't need around here, a union pusher." i Hence, the record not only estab- 4 In facl. Orweiller was informed of I ruehling'N cali-i n n Mai 7 anld hat Fruehling had explained he wt:s "going out of to.nl" a.nd ilid u e absenit that dal. I The Administrative I aw Judge found that this stlatment s.Iolted Sex 81aX I ) of the Act ill that it "convey s It the listener that 'union pusher' aire looked upon with disfavor or hostilits by management" and mia; ran the risk of discharge, We agree with that finding Hlowever. Ihe \dnumnlstr;lle L.aw Judge concluded that White's remark was 'too isolated" to , irrianl a remedial order We disagree with that Lonclusmn and find thlat : retlledi order is warranted herein lished that Respondent had knowledge of Fruehl- ing's union activity but also that Respondent had exhibited specific animus toward him because of those activities. And, as urged by the General Coun- sel, Full's testimonial concession that Fruehling's union activity was a factor considered at several lev- els of management prior to the decision to discharge supports an inference that Respondent was unlawful- 13 "preoccupied" with ridding itself of a union activ- ist. Most importantly, we find that the record plainly establishes that the treatment meted out to Fruehling was discriminatory when compared to the treatment accorded other employees charged with similar disci- plinarly lapses. .Accordingly. we find that the "unau- thorized absence" reason given for his discharge was seized upon by Respondent as a pretext for the real reason: namely, Fruehling's union activity. In reaching these conclusions we note that the rec- ord shows that several employees received numerous warnings for excessive absenteeism, including "oral warnings" after "final written warnings." Three em- ploNees. Charles Tidaback, Mark Light, and Dennis Hart were given 5-day suspensions after an unau- thorized absence. These three employees were only suspended even though they initially lied about the reason for their absences. which turned out to be at- tendance at a softball tournament. Another employ- ee, 'inmothy Etsinger, was given a 2-day suspension for an unauthorized absence following a "final writ- ten warning." And still another employee, Larry Mil- lenbaugh, was not disciplined in any way after two unauthorized absences. We also note that Fruehling's last warning was is- sued 8 months previously and that warning did not state that discharge would follow the next absence. Moreover, Fruehling's immediate supervisor, Lee Or- weiller. made no recommendation that he be dis- charged. rather the decision to discharge was made by management officials who concededly were aware of F ruehling's union activity and involvement. In discounting all the above evidence of disparate treatment the Administrative Law Judge attempted to distinguish Fruehling's case on the basis of his conclusion that Fruehling was actually fired for in- subordination in not answering his supervisor's re- quest to be more specific about the reason for his absence rather than for the absence itself. The Ad- ministration Law\ Judge reached this conclusion de- spite the fact that Respondent's official personnel records state that the reasons for discharge were "an unauthorized absence" and a failure to "heed the Fi- nal Written Warning." ('ontrary to the Administra- tive l.aw Judge. we see no basis for assigning a rea- son for the discharge other than that given to the 759 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee and carried on the employer's official rec- ords. Inasmuch as the record shows that Fruehling was discharged for the same offenses that other em- ployees were not discharged for, we find that Re- spondent's disparate treatment of Fruehling was clearly established. In accord with our findings above, and upon con- sideration of the entire record, we make the follow- ing: CONCLUSIONS O LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica, UAW, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in the following conduct, Respon- dent committed unfair labor practices in violation of Section 8(a)(1) of the Act: (a) Telling employees they must distribute union literature outside the plant, thereby implying that distribution is forbidden in nonwork areas within the plant building. (b) Applying discriminatorily its no-distribution/ no-solicitation rule against the distribution of union literature while not enforcing it against like activity with respect to all other subjects or projects. (c) Threatening employees with reprisals if they engaged in union or protected concerted activities. 4. By discharging Robert Fruehling on May 10, 1977, and thereafter refusing to reinstate him for en- gaging in union and protected concerted activities. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in un- fair labor practices, we shall order that Respondent cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. And, as the unfair labor practices committed by Respon- dent are of a character striking at the core of employ- ees' rights safeguarded by the Act, we shall order that it cease and desist from in any other manner infring- ing upon rights guaranteed in Section 7 of the Act. Since we have found that Respondent, in violation of Section 8(a)(3) and (1) of the Act, discriminatorily discharged employee Fruehling, we shall order that Respondent offer employee Fruehling immediate and full reinstatement to his former, or substantially equivalent, position, without prejudice to his senior- ity or other rights and privileges, and make him whole for any loss of earnings suffered by him by reason of Respondent's discriminatory conduct. Such backpay is to be computed in the manner pre- scribed in F. W. Woolworth Compranv. 90 NLRB 289 (1950), with interest thereon to be computed in ac- cordance with Florida Steel Corporation. 231 NLRB 651 (1977).6 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, The Timken Company. Bucyrus, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Enforcing a rule against employee distribu- tions in all areas of the plant including nonwork ar- eas. (b) Disparately enforcing its no-distribution/no- solicitation rule with respect to distribution and solic- itation on behalf of International Union, United Au- tomobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other labor orga- nization, while permitting like activity with respect to other subjects or projects. (c) Threatening employees with firings or other re- prisals if they engage in union or other protected concerted activity. (d) Discouraging activities on behalf of Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other union, or other protected concerted ac- tivities, by discriminatorily discharging or refusing to rehire or reinstate its employees or by discriminating in any other manner with respect to their hire or ten- ure of employment or any term or condition of em- ployment. (e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Robert Fruehling immediate and full re- instatement to his former job or, if his former job no longer exists, to a substantially equivalent position, without loss of seniority or other rights and privi- leges, and make him whole for any loss of earnings he may have suffered in the manner set forth in "The Remedy" section of this Decision. (b) Preserve and make available to the Board and its agents, upon request, all pertinent records and 6 See, generally. Isis Plumbing & Heating (o, 138 NLRB 716 1962) 760 THE TIMKEN COMPANY data necessary to determine the amount of backpay due. (c) Post at its plant in Bucyrus, Ohio, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respon- dent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8. in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 7 In the event that this Order is enforced bs a Judgment of a U niled States Court of Appeals, the words in the notice reading "Posted hb Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States ( ourt of Appeals I nforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EIMPi OYI ES POSTED BY ORDER OF TIHE NATIONAL LABOR REI.AilIONS BOARD An Agency of the United States Government After a full hearing in which both sides had the op- portunity to present their evidence, the National La- bor Relations Board has found that we have violated the National Labor Relations Act and ordered us to post this notice. We therefore notify you that: WE WILL NOT prohibit distribution of union lit- erature in nonwork areas within the plant, nor will we tell employees that they must distribute outside the building. WE WILL NOT discriminatorily apply a rule against solicitation and distribution during working hours in order to discourage union ac- tivities among our employees. WE WILL NOT interfere with, restrain, or coerce employees by discharging or in any other man- ner disciplining them or by threatening to dis- charge or discipline them because they have en- gaged in union or other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL. NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. Wi wii.l. offer Robert Fruehling immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his se- niority or other rights and privileges, and WF willt make him whole, with interest, for any loss of earnings he may have suffered as a result of the discrimination practiced against him. Tile TiIMKEN CO0MI'ANY DECISION STATI MiNT Of TiH CASE Ht rItoN S BRANDON. Administrative Law Judge. This case \was heard before me at Bucyrus, Ohio, on November 9 and 10, 197 7.1 The charge was filed by International Union, United Automobile. Aerospace and Agricultural Implement Workers of America, UAW, hereinafter called the Union, on May 16, and the complaint herein was is- sued on June 22. The primary issues are whether The Timken Company, hereinafter called Respondent; (a) vio- lated Section 8(a)(l) of the National Labor Relations Act by discriminatorily applying it rules so as to prevent em- plosee distribution of literature while allowing other types of solicitation or distribution by employees, and by threat- ening employees with suspension for distributing union lit- erature; (b) violated Section 81a)(1) of the Act through a statement of its supervisor Charles White to an employee in early May:; and (c) violated Section 8(a)(3) and (1) of the Act by discharging its employee Robert Fruehling on May 10. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following: FINDIN(;S OF FACT I JURISDI( TION Respondent is an Ohio corporation with its principal of- fice located in Canton, Ohio. It operates plants at other locations, however, including a plant at Bucyrus, Ohio, herein involved, where it is engaged in the manufacturer of roller hearings and related steel products. Annually, Re- spondent, in the course and conduct of its business opera- tions. ships products valued in excess of $50,000 from its Bucyrus facility directly to points outside the State of Ohio. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (61, and (7) of the Act. 11I ABOR OR(iANIZAIION INVOLVED The complaint alleges and Respondent by answer admits All ,lates are in 1977 unless other lse slated 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Union is a labor organization within the meaning of Section 2(5) of the Act. iI. AL.IEGED UNFAIR LABOR PRAC1 ICES A. Background Insofar as this record reflects the Union began an orga- nizational campaign among Respondent sometime prior to January 25 when certain of Respondent's employees began passing out union literature at Respondent's plant as will be discussed in greater detail hereafter. It was stipulated by the parties that the Union's organizational efforts resulted in a petition being filed with the Board on January 31 and docketed as Case 8 RC- 10779. An election was held in the unit on April 6, with the employees voting 657 against, and 469 for, representation by the Union. Certification of the results of the election was issued on April 13. B. The Respondent's Alleged Discriminatory Application of Rules and Conclusions Thereon The complaint herein alleges that Respondent "unlaw- fully, coercively and discriminatorily applied the Respon- dent's 'no-solicitation, no-distribution' rule to its employ- ees so as to prevent their circulation of union literature in non-working areas during non-working time," and "threat- ened" employees with discipline for engaging in "such ac- tivity." (Emphasis supplied.) The General Counsel's brief does not contend that Respondent's rules with respect to "no-solicitation" were unlawfully promulgated. Nor is there any argument that the rules were unlawful on their face or that the "no-solicitation" rules as applied to distri- bution of union literature was in any way unlawful. The evidence is clear that since at least February 1, 1975, Respondent has published and maintained a set of rules regarding employee conduct including a rule prohibiting "Isloliciting for any purpose or collecting money for any purpose whatsoever on working time." Respondent's set of rules further prohibit "[vjiolation of or disregard of good housekeeping practices, safe practices or safety, fire, plant protection, or other work rules or regulations. Careless or negligent use of C'ompany property." 2 The facts which give rise to the complaint allegations regarding the discriminatory application of Respondent's rules are not in great dispute. On January 25,3 employees 2 Respondent's rules, as published. are entitled. "Your Conduct and Re sponsibilities," and utilizes the following introductory language: There are certain standards of common honesty and decent human hehalvlr which are a basic part of good citizenship and respect for the rights of others. 'his is true on the job as well as in any other situation. As an emplovee if I he Fimken Company. you should not engage in ainy conduct or activity that interferes with your own work or that of any other employee or with plant operations or the maintenance 1t ('omnpany prenises. Although no effort is made to list every possible kind of undesirahle conduct. the following are typical reasons for disciplinary action up tii and including discharge. When a;ction is necessary, consideratioini ill be given to the seriousness of the offense, the previous record of the employee, his length of service. and ans other relevant or extenuating circumnl nces. XWhile ('lark iand Redden, who were presented as (ieneral (Counsel's Nancy Clark and Roger Redden began to hand out union literature just inside an employee entrance to the plant and near production line I for bearing cups. 4 Clark and Red- den, according to their testimony, passed out the literature during the period from 2:30 to 3 p.m. Both were due to clock in to work on the next shift to begin at 3 p.m. There is no dispute that they were on their "own" time, and pre- sumably were attempting through their distribution to reach employees who were arriving for work on the 3 p.m. shift. Clark and Redden were approached by General Super- visor Charles Crall and Production Supervisor Louis Mey- ers. Crall told Clark and Redden that they were not permit- ted to pass out literature in that area and if they wanted to continue to pass out the literature they would have to go outside the plant. There was some hesitation on the part of Clark and Redden and Crall stated that if they did not go outside the plant to pass out the material they would be escorted out and would be suspended. Redden asked if they were required to go outside the gate to the plant prem- ises and Crall responded that that was not necessary, that 'just outside the door would be fine." Clark and Redden gathered their material and complied with Crall's direc- tion.5 However, Clark and Redden, both dissatisfied with Respondent's prohibition of their distribution in areas in- volved, sought interviews with Plant Manager Tull later in the day to protest the matter. Tull, in separate conversa- tions with Clark and Redden, explained that they were in a work area and employees were not allowed to pass out literature in a work area. Asked why day shift employees had been allowed to pass out union literature at that loca- tion Tull replied that he had not been there at 7 a.m. when the day shift passed theirs out and the foremen had not been directed to tell them that it was a work area. 6 Following his confrontation with Clark and Redden, Crall with Meyers proceeded to an employee plant en- trance on the aisle between the toolroom division and the green production area where Crall, only minutes before while on his way to Clark and Redden's location, had observed employee Robert Fruehling distributing litera- ture. Crall and Meyers approached Fruehling who, having completed his distribution on his own time and prior to his starting his shift at 3 p.m., was headed toward Crall. Ac- cording to General Counsel witness Fruehling, Crall asked witnesses. could only testify that this distribution occurred in late January or early February, Respondent's witness Charles Crall. general supervisor of the "green machine department." testified the distribution occurred on Jan- uary 25. His testimony in this regard is accepted as accurate inasmuch as he further testified that he submitted a dated report of the distribution to Plant Manager Robert Tull 4 b'he record does not contain a description of the union material being distributed by (lark or Redden or by Robert Fruehling, hereinafter referred tO The foregoing is a composite of the testimony of C'lark. Redden, and ('rail, all of whom were generally credible witnesses whose testimony did not vary significantly. ' Crall credibly testified that he had been directed by Plant Manager Tull to get another foreman and approach the employees passing out the litera- ture and inform them that they should pass literature out on the outside of the building. While Crall's testimony suggests a ban against employees dis- tributing literature in nonwork areas within the plant building. the General Counsel does not allege a violation in this regard, presumably because Tull in his conversations with Clark and Redden referred to the Han only in "work areas." There is no other evidence indicating Respondent prohibited distribution of union literature in "non-work" areas 762 THE TIMKEN COMPANY him if he was finished and Fruehling replied that he was, to which Crall responded that the word had come down that if Fruehling was to continue "this" he was to be outside. Crall's testimony was that he only asked Fruehling if he was going to continue passing literature out and Fruehling responded that he was not, that he was going to the locker room. Meyers did not testify. To the extent it may be deemed material, I credit Fruehling's version of the com- ments of Crall. The statement attributed to Crall by Fruehling is consistent with the statements he made to Clark and Redden and is further consistent with his in- structions from Tull.7 In support of the contention that Respondent's rules were discriminatorily applied to ban the literature distribu- tion referred to above the General Counsel produced evi- dence in the form of testimony of Fruehling, Clark, Red- den, and employee Larry Millenbaugh. In this respect Fruehling testified that in the past, the time not specified, he had been solicited by his lineman (person responsible for keeping the machines in working order) for contribu- tions for the United Way Campaign. In addition, he re- lated he had seen an employee named Pete Steinman sell- ing snowmobiles in the plant and Steinman had brochures on the snowmobiles "freely" laid on the top of where he was working. Fruehling did not state when he had ob- served this. Fruehling also testified that football tickets were sold at the shop. While he testified that this "soliciting or selling" was a common occurrence he did not testify as to the frequency of the occurrence nor could he testify that any "members of management" were aware of such solicit- ing on working time, although he did state that none of the soliciting was done in secret, and nobody to his knowledge had been disciplined for it. Employee Redden testified that there had been a peti- tion circulated in the plant a couple of years previously on working time concerning the abolition of gun control. He could not recall any employees selling items during work- ing hours but did testify that there had been some collec- tions taken up on worktime for two employees. Further, he testified that on one occasion he was solicited to make a pledge to the YMCA during worktime. While he could spe- cifically recall only the one petition, the two collections, and the one YMCA solicitation he broadly testified that petitions and solicitations occurred "quite often." How- ever, he was unable to establish that any management rep- resentatives took part in the solicitations or were aware of them. General Counsel witness M illenbaugh recalled he had seen Girl Schout cookies and candy for a Boy Scout drive sold in the plant on working time. He did not testify as to the times and could recall only one employee by name selling Girl Scout cookies. He recalled a petition on gun control in the plant laid on a cabinet in the heat treat area but did not specify the time when he observed it. Finally, he testified regarding one collection for an employee taken up during working time, and that he had seen Avon books I do not credit that portion of Fruehling's testimonN which also put shift superintendent I rank Lamhert on the scene. In view of L.ambert's testi- mon) that he was not present I find that Flruehling was In error it this regard. back at the inspection booths. Millenbaugh could not testi- fy as to the frequency of these solicitations, nor could he testify from his own knowledge that any members of man- agement were aware of any of the specific solicitations he referred to. The testimony of employee Clark was more specific re- garding solicitations on working time. She identified fellow employees Dora Smith and Ted McCleese as selling indian jewelry on working time in the plant and employee Elaine Mason as selling greeting cards. She testified Vera Walker sold raffle tickets and various other employees sold Girl Scout cookies. Moreover, Clark related that she had sold flower bulbs in the plant and one of the foremen, Dick Stuckert. during working time, looked at the catalogue from which she was selling. This occurred, according to Clark, between May and July. She also sold flower bulbs in the plant the preceding year. Finally, Clark testified that solicitations on working time in the plant occurred with weekly frequency. Stuckert was not called by Respondent to contradict Clark's testimony regarding his having looked at her catalogue. Based on all the foregoing it is argued first by the Gener- al Counsel that Clark, Redden, and Fruehling had been restricted from passing out literature in nonwork areas and that Clark and Redden had been unlawfully threatened with suspension for such activity. Secondly, the General Counsel argues that even if the three had been passing out literature in work areas Respondent had discriminatorily applied its rules so as to inhibit or prevent union activity among its employees. Respondent conversely argues that Clark, Redden, and Fruehling had, on the day in question, been passing out union material in working areas and were lawfully pro- hibited from doing so. Respondent denies any knowledge of employee solicitations on working time for sales, contri- butions, or petitions as testified to by the General Coun- sel's witnesses and denies any discriminatory application of its rules to unlawfully prohibit union activity. While Re- spondent did not have foreman Stuckert testify in response to the testimony of Clark regarding her selling of flower bulbs in the plant Respondent nevertheless argues this would constitute at most one instance of tolerance by man- agement of such solicitation in a facility employing some 1,100 employees and that this is insufficient to prove dis- criminatory application of its rules. Turning first to the issue of whether Clark, Redden, and Fruehling were distributing their union material in work areas the record contains photographic as well as graphic evidence of the locations in Respondent's plant where the distributions in question occurred. There is little dispute with respect to this evidence and from it as well as from the testimony of the witnesses it is clear that the distribution took place in areas not specifically set aside for nonwork related functions or activities. Fruehling testified with respect to the area in which he was distributing material on January 25 that it was fre- quented by employees on worktime who used the corridor as a traffic way to the toolroom and maintenance area. While Fruehling may have been on his own time while distributing the material he candidly admitted that his dis- tribution was indiscriminate and that he gave literature to 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees who were on worktime as they passed him as well as those who may not have been. Fruehling further admitted that the corridor was utilized also for cart or tow- motor traffic between maintenance and the green depart- ment, but testified that he stood at the side of the corridor so as not to hinder such traffic. Fruehling's testimony indi- cated that the traffic in the corridor was substantial and this agrees with the testimony of supervisor Crall who de- scribed the traffic as heavy. From the record it does not appear that the weight of traffic was limited to just those times when employees were reporting to work through the plant entrance in that corridor. Accordingly, it is clear, and I find, that the use of the corridor by employees was sub- stantially work related and it was, therefore, a work area. The area in which Clark and Redden distributed their material on January 25 must also be found to be a work area. While this was an area just inside an employee en- trance to the plant, the entrance opens directly into the green department. Indeed, Clark conceded in her testi- mony that Redden when passing out his literature was only about 10 feet from an operating production screw machine. It appears that arriving employees after coming through the door at that location proceeded immediately up an aisleway referred to as "tube alley," to a timeclock. While one side of the "alley" is used as a storage place for raw tube stock a scrap auger machine is located on the other side and receives scrap metal "chips" which result from the production process. An overhead crane operates up and down the length of the "alley" carrying scrap to the auger. The "alley" is also used by towmotor vehicles picking up raw tube stock for delivery to production machinery. Fi- nally, a sign just outside the entrance at which Clark and Redden were handbilling contains the warning that the door enters into a "Restricted area" and that "eye protec- tion must be worn." Contrary to the General Counsel's contention that only the "strictest definition of work area would encompass these locations" where the distributions took place, I find that the areas in question quite clearly constitute work ar- eas under any definition of that term. I therefore find that the distribution by Clark and Redden, like that of Fruehl- ing, did take place in a work area. There remains the issue of whether Respondent discrimi- natorily applied its rules so as to inhibit the employee union activity. The General Counsel's evidence in this re- gard is vague and with the exception of solicitations with respect to the United Way Campaign and perhaps Clark's selling of flower bulbs there is little to establish that Re- spondent was aware of the solicitations on worktime.8 Al- though General Counsel witnesses contend Respondent must have known of wide spread nonunion related solicita- tions there is no direct evidence of such knowledge. Nor is there any real basis upon which such knowledge could be inferred. Indeed, General Counsel witness, Redden, an em- ployee of Respondent for some 10 years, could not think of s It is axiomatic that to establish disparate application of no-solicitation rules it must be shown that the respondent employer was aware of the nonunion related solicitation before it can be shown that such was tolerated while union solicitations were not See Ser;e-Ar. Inc.., 175 NLRB 801 (1969), on remand from 395 F.2d 557 (( .A. 10, 1968). any instances of employees selling items on worktime. With respect to the solicitations on worktime for the United Way it is admitted by Respondent that it was aware of such solicitations and had in the past authorized such solicitations. However, Respondent's witness Plant Manag- er Tull testified that such solicitations ceased in 1975 when Respondent initiated direct mail solicitations from its em- ployees for such funds. 9 Even if the Respondent had not ceased its United Way solicitations there is Board prece- dent establishing that solicitations for such funds are "beneficient acts" which fall far short of proving discrimi- nation. See Lutheran Hospital of Milwaukee, Inc., 224 NLRB 176 (1976); Serv-Air Inc., v. N.L.R. B., supra. Thus, I conclude that the solicitations for the United Way are not a basis for finding discrimination in the application of Re- spondent's rules herein. I am not persuaded that the record fully established that Supervisor Stuckert was aware that Clark was in fact "sell- ing" or soliciting on worktime. When asked if members of management knew solicitations were taking place during working time Clark testified that while she was selling flower bulbs, Stuckert personally looked at the catalogue from which she was selling. While she said he was aware of her selling the bulbs she did not further explain how he was aware that she was doing it on worktime. Asked how she went about "selling" Clark testified that she had a cata- logue and order forms, and she took the catalogue to those who she knew would be interested in buying the bulbs. Then, when the employees had time they would fill out the forms and get them back to Clark or they would take the catalogue home and do it later. Clark added that some of the employees looked at the catalogue during their spare time. At most this testimony establishes only that Stuckert was aware of Clark's having the catalogue and that he looked at it, perhaps even on work time. It does not estab- lish that Stuckert was aware that Clark was circulating the catalogue on worktime or that employees were ordering from the catalogue on worktime. Moreover, it does not establish that employees were in fact filling out orders on worktime. Under these circumstances, I do not find that Stuckert knowingly tolerated Clark's solicitations on work- time and, therefore, such solicitations do not provide a ba- sis for a finding of disparate application of Respondent's rules regarding solicitation to prevent union activity. Even assuming. arguendo, that Stuckert was aware of Clark's solicitation on one occasion between May and July this toleration of one occurrence in a unit of some 1,100 employees could only be regarded as isolated and insuffi- cient to establish that toleration by Respondent which would justify a conclusion of disparate application of its rules. Cf. Lutheran Hospital of Milwaukee, supra. In Astro- nautics Corporation of America, 164 NLRB 623, 627 (1967), the Administrative Law Judge with Board approval stated: The action of one supervisor in failing to enforce an otherwise valid no-solicitation rule is not sufficient ground to estop the Employer from its continued as- 9 Fruehling's testimony suggests that the United Way Campaign was con- ducted "last fall" in the plant. This is contrary to the testimony of Tull and is not supported by any other General Counsel witness. Moreover. Fruehling's testimony in this regard was less than positive. I conclude that Fruehling's testimony in this regard is in error and do not credit It 764 THE TIMKEN COMPANY sertion of that rule. All that Pilak's [the supervisor's] action demonstrates is that Pilak was derelict in his duty. It does not attribute to the Respondent a dis- cnminatory attitude in the enforcement of the Rule. In this regard, the cases cited in the General Counsel's brief, The Dayton Tire & Rubber C(omepalnl. a Dii.sion of the Firestone Tire & Rubber Conmpanr. 207 NILRB 624 (1973): Montgomery Ward & Co.. Incorporated. 198 NLRB 52 (1972); Daylin Inc., I)Discount Diviion d b a Mlilcr'x Di.o- count Dept. Stores, 198 NLRB 281 (1972): and ('as.e .'alan ufacturing Company, 167 NLRB 89 (1967). are distinguisha- ble inasmuch as those cases involved either more widespread solicitations tolerated by management or active participation in the solicitations by the supervisors. Based on all the foregoing, I find that the General Coun- sel failed to sustain the burden of establishing by a prepon- derance of the evidence that Respondent discriminatoril) applied its rules in violation of Section 8(a)( I ) of the Act. It follows, and I find, that inasmuch as Respondent did not discriminatorily apply its rules in violation of the Act. Re- spondent's threats to suspend Clark and Redden if thes continued to pass out union material in work areas likewise did not constitute violations of Section 8(a) 1 ) of the Act. C. The Alleged Coercive Statement and Conc lusion.o Thereon The General Counsel presented as a witness Edward Pollock, an employee of Respondent for about 7 years. Pollock was employed at all relevant times in the green department under Green Department Production Super- visor Charles White. According to the testimony of Pol- lock, about a week or two prior to the discharge of Robert Fruehling, the alleged discnminatee in this case. on May 10, Pollock was "shooting the breeze" with White in the green department before starting work. As they were talk- ing employee Fruehling passed the two a few minutes after 11 p.m., on his way to the timeclock to punch out upon completion of his shift. Upon Fruehling's passing, White remarked to Pollock, "That's one fellow we don't need around here, a union pusher." Pollock could recall nothing further from the conversation with White either before or after the quoted remark. White was presented by Respondent and denied the spe- cific statement attributed to him. Further, he could not recall any specific conversation with Pollock about Fruehl- ing. White testified that he did not know Fruehling person- ally but that he had had occasion to complain to higher supervision about Fruehling's work. In this respect White explained that his shift followed Fruehling's and utilizes the same machinery which Fruehling runs on the preceding shift. According to White, on recent occasions he had found that Fruehling's machines were not set up right and tolerances were not being followed thereb' necessitating adjustments and accompanying delays when White's crew took over the operation in order to preclude the production of "scrap." White, who was not involved in or consulted in Fruehling's subsequent discharge, acknowledged that he may have made a statement that Fruehling was an employ- ee that the Respondent did not need because he was a poor worker. The General Counsel contends, based on Pollock's testi- mony that White's statement constituted a coercive statement in violation of Section 8(a)( 1) of the Act and was tantamount to a threat of reprisal for union activity. Re- spondent. on the other hand, argues that the statement at- tributed to White by Pollock was not in fact made and that even if It were it is ambiguous and does not embody a threat of future action against Pollock. Fruehling or any other employee. Respondent further argues that there was no evidence that the statenlent attributed to White actually interfered with, restrained, or coerced any employee. Ihe issue as to whether the statement of White attribut- ed to him by Pollock was in fact made requires, of course, a credibility resolution. I resolve credibility here in favor of Pollock who, although a reluctant witness testifying only because subpenaed bs the General Counsel, conveyed the impression of truthfulness. He was all the more credible because he remains an employee of Respondent and con- ceivably might run some risk in testifying adversely to Respondent. White, on the other hand, in his testimony maintained an air of feigned nonchalance which distracted from his sincerity. Accordingly. I find that White did make the statement attributed to him by Pollock.' o Additionally. I concur with the General Counsel's posi- tion that the statement made by White was coercive. The statement. while not without some ambiguity. in my opin- ion, conveys to the listener that "union pushers" are looked upon with disfavor or hostility by management. Moreover. in view of Fruehling's discharge a short time later, whether such discharge was lawful or not, the listener may well conclude that the statement threatens discharge for union activity. I therefore find that White's statement constituted a violation of Section 8(a)( ) of the Act. See Rovy's Carpet Land, Ino.. 228 NLRB 253 (1977): Ram, Inc., 218 NLRB 430 (1975); MUademoiselle Shoppe. Inc., 199 NLRB 983, 987 (1972). The fact that there was no evidence of actual coer- cive effect on Pollock does not preclude the finding of a violation here. It need only be found that White's state- ment may reasonably be said to tend to interfere with the free exercise of employee rights under Section 7 of the Act. N. L. R. B. v. Burn up and Sims, Inc., 379 U.S. 21 (1964); Tex- tile Wf('orkers t nion of .4America v. Darlington Manufacturing Co., 380 U.S. 263 (1965); Tinme-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96 (C.A. 7. 1959): American Freightwars Co., Inc., 124 NLRB 146 (1959). Nevertheless, notwithstanding my finding of the viola- tive nature of White's statement, in the absence of any other conduct violative of the Act, I conclude that White's remark is too isolated to warrant issuance of a remedial order. I have found no violation with respect to Respon- dent's application of its rules to union adherents above, nor do I find merit to the unlawful discharge allegations of Fruehling discussed below. Thus, White's statement which In reachin this credlhilits resolution I have given due regard to White's lestimon that he did not "feel" this was (discriminaionlls) toward union supporter, and that he had re.onmmended two union supporters for superilsiors positions His expressed "feelings" were entlrel, self-sering. As to hi, recormmentd.iations on promoltl ons, too mans other factors ma, hase been in,.loed In such recommendtllions to conclude therefrom that thes COlnstilttell hi, "ipproa[l of union iadvoac, s on the part of emplosee, 765 DECISIONS OF NATIONAL LABOR RELATIONS BOARD followed the expiration of the Union's campaign and the interference free completion of the election process stands as the only violation occurring in a unit of 1,100 employ- ees. In view of the foregoing, it is my opinion that the purposes of the Act would not be effectuated by the is- suance of a remedial order issue based on this single occur- rence. See Bomber Bait Company, Inc., 210 NLRB 673 (1974); Walgreen Co., d/b/a Globe Shopping City, 203 NLRB 177 (1973); Howell Refining Company, 163 NLRB 18 (1967). D. The Alleged Discriminatory Discharge of Robert Fruehling and Conclusions Thereon Robert Fruehling was employed by Respondent in April 1972 and worked as cup attendant in the finish department on the 3 to 11 p.m. shift under the direct supervision of Lee Orweiller, supervisor over cup finish on that particular shift. That Fruehling was an active union supporter during the Union's campaign is not disputed. His distribution of union literature in the plant on January 25 and Respon- dent's response thereto has already been set forth above. In addition, Fruehling handbilled for the Union at the plant gates on subsequent occasions during the union campaign and was successful in securing 50 to 60 employee signa- tures on union authorization cards. Fruehling also wore "buttons" and T-shirts with the Union's name thereon in the plant. The critical comment of supervisor Charles White to Pollock previously noted constitutes Respon- dent's further recognition of the extent of Fruehling's open union activity. Fruehling was discharged on May 10. The events leading up to that discharge are not greatly disputed. Fruehling's employment record shows that on August 22, 1975, he was absent from work, "out of town" on personal reasons. On August 27, 1975, he received an oral warning for the Au- gust 22 "unauthorized absence." " Fruehling had another absence for personal reasons (taking a test) on August 2, 1976. Apparently, this absence was not regarded as accept- able by Respondent and on August 4, 1976, Fruehling re- ceived his second oral warning for an unauthorized ab- sence. On August 20, 1976, Fruehling was again absent with the only excuse shown as "out of town on business." When he refused to be more specific as to the reason for the absence Respondent treated the absence as unauthor- ized with no acceptable reason. 12 Accordingly, on August U Hinder the Respondent's absentee program Respondent classified ah- sences as either authorized or unauthorized. Only absences approved and authorized in advance by Respondent, such as a leave of absence. are re- garded as "authorized." All other absences are classified as unauthorized and are generally recorded in the employee's records when they occur However. such unauthorized absences may be ignored and no disciplinary action taken thereon if the employee supplies an "acceptable" reason or excuse for the absence Nevertheless, even "acceptable" absences may dlaiu disciplinary measures if over a period of time the absences become "chron- ic" or excessive. Thus. tinder this system an absence due to an illness would constitute an unauthorized absence but the reason for the absence would be "acceptable" so that no disciplinary action would result unless the absences become excessive. 12 The "Investigation of Need For Disciplinary Action" form filled outl on Fruehling on this occasion by Respondent's supervisors noted not only that Fruehling refused to state what the reason for the August 20 absence was but also noted that "Itlhe employee has not heeded any of the previous warninigs" 26, 1976, Respondent issued a "Final Written Warning" to Fruehling. Although discharges for unauthorized absences subsequent to an employee's receipt of a "Final Written Warning" were not automatic under Respondent's system it is clear from Fruehling's testimony that he understood the import of his "final warning." 13 On May 7, a scheduled overtime workday for Fruehling, Fruehling called Respondent's guard house at 8 a.m. and reported that he would be absent and going out of town.'4 Fruehling was absent then on May 7, and reported for work on his next scheduled workday, May 9. When he returned to work Supervisor Orweiller inquired of him where he had been on May 7. According to the testimony of Fruehling, which is not contradicted in this regard and which I credit, Fruehling asked Orweiller if he was asking officially or just passing the time of day. Orweiller respond- ed that he had to know and Fruehling replied that he did not wish to say why he had been absent. Apparently, Or- weiller did not at that time pursue the matter. Later, at around 8 p.m., that same evening, Orweiller called Fruehling to his office where Orweiller again in- quired of Fruehling's absence and asked if Fruehling want- ed to make a statement at that time.' Fruehling again de- clined, saying that he had said that he was out of town and that he felt that that was sufficient reason, and that he thought "anymore kind of reason would be something like, something almost running my life." 16 Following his interview with Fruehling on May 9, Or- weiller, not knowing exactly what to do about the matter, prepared a written report of the matter for Plant Manager Tull. This report was factual setting out the details of his exchange with Fruehling regarding the absence and is not disputed by Fruehling. The report which made no recom- mendations was received the next day by Shift Superinten- dent Frank Lambert who reviewed Fruehling's personnel record, his previous record on unauthorized absences, his i Under Respondent's disciplinary procedure the normal progression is from an oral warning which is nevertheless "written up" on a "green slip" and put in the employee's personnel file to a written warning which is a "white slip" and Is also put into the employee's personnel file. The affected employee received a copy of the "white slip" but not the "green slip'" The testimony of Respondent's industrial relations manager, George Arris, clearly establishes the flexibility of Respondent's disciplinary procedures. Thus, there is no set number of oral warnings required before a written warning is issued. Further, depending on "all the circumstances'" an oral warning may issue after a written warning or a final written warning. Final- ly. under Respondent's procedures, discipline short of discharge can be met- ed out for employee offenses after a written warning. I4 Reporting to the guard was standard procedure Supervisors picked up reports on absence call-ins from the guard as they passed the guard when reporting to work, In keeping with this procedure Supervisor Lee Orsweiller received the notice of Fruehhling's call-in on May 7, with the notation thereon, made hb the guard, that Fruehling had stated he was "going out of town." "1 A purpose of calling Fruehling to his office. according to the testimony of Orweiller. which is not contradicted by Fruehling in this regard and which I credit, was to issue to Fruehling an oral warning for running "scrap" on his last previous workday May 6. 1 Orweiller's version of this conversation does not dilfer materially from Fruehling's. Orweiller did not contend that he threatened Fruehling with any disciplinary action but he testified he told Fruehling that the absence was an unauthorized absence and that he would get back with him the next day on the matter. I credit Orwelller's testimony in this regard, since I was generally impressed by Orweiller's demeanor while testifying and he was not specifically contradicted by FIruehling 766 THE TIMKEN COMPANY total record, and his length of service and concluded that Fruehling should be discharged. He orally made his recom- mendation to that effect to Plant Manager Tull prior to noon on May 10. Tull, knowing of Fruehling's union activ- ity, consulted with his superior, Robert Gulling, a general manager of Respondent's Bucyrus district. Again because of Fruehling's known union activity they deemed it advisa- ble to telephonically consult with George Arris, Respon- dent's director of industrial relations. Arris thereafter con- sulted with Respondent's attorney concerning the matter and sometime around 2 p.m. on May 10 a conclusion was reached that Fruehling's discharge was warranted. There- after, Lambert prepared the discharge papers and when Orweiller reported for work shortly prior to 3 p.m., Lam- bert called him in, advised him of Respondent's decision on Fruehling, and had Orweiller sign the already prepared "Investigation of Need for Disciplinary Action" form as well as the "Record of Disciplinary Action" form. The for- mer noted Fruehling's unauthorized absence record includ- ing his final written warning of August 26, 1976, stated that Fruehling had not heeded the final written warning, and reflected discharge as the disposition. The record of disci- plinary action simply noted unauthorized absence as the offense and discharge as the discipline. When Fruehling reported to work he was called into Lambert's office and advised of his discharge. Fruehling asked about his record of absences and Lambert read them off to him. Thereafter, he was escorted from the plant. It is the General Counsel's contention that Respondent's discharge of Fruehling constituted disparate treatment un- der Respondent's flexible disciplinary procedures and that in view of that disparate treatment Respondent revealed that its true motivation for the discharge was Fruehling's known union activities. Further, the General Counsel ar- gues that the harshness of this penalty imposed on Fruehl- ing, the timing of the discharge-about a month after the Union election-and the manner in which the discharge was made, i.e., the decision being made without consulta- tion with Fruehling's immediate supervisor, Orweiller, as well as Respondent's "preoccupation" with whether the discharge would result in a charge, all demonstrate Re- spondent's illegal motivation in the discharge. It is the position of Respondent, expressed in its brief and through its witnesses, that Fruehling was discharged for unauthorized absences which he failed to explain when asked. Respondent maintains that its action with regard to Fruehling was not discriminatorily motivated and that it was entirely in keeping with its policies on unauthorized absence which were referred to in a memorandum dated June 20, 1973, from Plant Manager Tull to plant supervi- sion expressing concern for the high amount of absence being experienced with the stated reason being "Personal." That memo directed supervisors to "quiz" employees for the reason for an unauthorized absence and take appropri- ate disciplinary action if the expressed reason is not accept- able. The General Counsel presented evidence at the hearing establishing that Respondent had tolerated employees with substantially more absences than Fruehling. The absentee records of former employees Marilyn Bartz, Phyllis Finch. Carlo Lindsay, Loma Lindsay, Linda Chatman. Bill Au- gustus, and Mike Finch are specifically relied on by the General Counsel in this regard. Those absentee records un- questionably demonstrate that Bartz, Finch, Lindsay, Lindsay, Chatman, Augustus, and Finch were discharged for chronic and excessive absenteeism at various times in 1975 and 1976. These discharges followed repeated oral warnings and written warnings, and, in some cases, oral warnings after written warnings on repeated and excessive absenteeism. 7 If Fruehling had been discharged for chron- ic or excessive absenteeism a clear case of disparate treat- ment would be made out based upon the records of these employees for Fruehling's absences pale in significance when compared to their overwhelming absentee records and Respondent's toleration of such records prior to taking discharge action. Such toleration is even less understanda- ble considering that many of these named employees had poor work records as reflected by various other offenses for work conduct. However, as Respondent points out with clear record support, Fruehling was not discharged for chronic or excessive absenteeism. I therefore conclude that the absentee and warning records of the aforementioned employees are not relevant to a finding of disparate treat- ment as to Fruehling based upon unauthorized absences for unacceptable reasons.' s More closely in point to Fruehling's case is the evidence relied upon by the General Counsel with respect to the records of employees Charles Tidaback, Dennis Hart, and Mark Light. Tidaback was hired in 1964, and his record as reflected by Joint Exhibit I(G) 19 shows that he had re- ceived no previous warnings on unauthorized absences, but after an absence of 3 days beginning August 14, 1976, ini- tially reported as due to illness but subsequently changed to "playing in a softball tournament" he was given a 5-day suspension for unauthorized absence. Mark Light, an em- ployee of 5 years, had no previous reprimands for unau- thorized absences but like Tidaback received a 5-day disci- plinary suspension following a 2-day absence beginning August 16, 1976, which was initially recorded as an illness but subsequently explained on Joint Exhibit I(G) as being due to his "playing in a softball tournament.20 Dennis Hart, an employee since 1969, had received an oral warn- ing for an unauthorized absence in March 1976, received a 5-day disciplinary suspension along with Tidaback and Light, following a 2-day absence beginning on August 16, 1976, when he played in a softball tournament. The Gener- al Counsel relies on the foregoing to demonstrate that Re- " The record evidence reflects onls four oral warnings to the above named employees for "unauthorized absences," two to Lindsay. one to PhllIis Flnch, and one to Mike Finch. It is true that the records on these employees indicate many absences for "personal" reasons }fosever, the record herein does not establish that the "personal" reasons were not explained to Respondent's supervisors. Ac- cordingly . I ca:nnt assume or infer that the employees were not asked about the reasons or that having been asked. they were found to he unacceptable h, Respondent Moreover, the records do not reflect that any employee was asked to siale an explanation and refused to do so. 1 Joint Fxh I(a) through (h) is a composite document showing the ab- sence and warning record of 10 employees including Fruehling throughout their emplo'sment with Respondent :"The GCcneral ('ounsel's brief asserts the initial reasons given for l daback's and Light's absences were "lies." The record does not clearly eslabhlish this but I believe it to he a fair Inference in view of the severe penalty imposed in the absence of ans prior w arnings for unauthorized ahsenLce" 767 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent could well have suspended Fruehling for his un- authorized absences like the suspension of Tidaback, Light, and Hart. and that reliance on the harsher remedy of discharge only proves its discriminatory intent with re- spect to Fruehling. On the contrary, in my opinion, this evidence substantiates Respondent's position that a num- ber of factors are utilized in determining discipline includ- ing the seriousness of the offense, the length of employ- ment of the involved employee, his previous record of warnings for the same offense, his overall prior warning record, and his response to those prior warnings.2' Viewed with these considerations in mind the lesser penalites im- posed on these three employees do not appear to he so unwarranted as to make Respondent's harsher penalty on Fruehling unreasonable. Thus, only one of the three em- ployees had a prior warning of any kind regarding unau- thorized absences in the 3 precedings years. None had had a final written warning as Fruehling had. Two had substan- tially more service with Respondent than Fruehling. More- over, while the total employment record of the three may not be wholly enviable it cannot be said that they were unresponsive to prior warnings. Even assuming that the three had initially "lied" about the reasons for their ab- sences, Tull's 1973 memo previously referred to herein, al- though anticipating the possibility of false reasons for ab- sences, did not call for automatic discharges even though it described false reasons as a "very serious disciplinary problem." Accordingly, I am not persuaded that the cases of Tidaback, Hart, and Light establish disparate treatment as to Fruehling. Evidence was submitted through the testimony of Mil- lenbaugh, an employee of Respondent for about 12 years, that Millenbaugh missed work twice in 1977, once around the end of February or the first of March, and once around the end of April. He testified that his wife called in for him and advised Respondent that Millenbaugh would be out of town on personal business. According to Millenbaugh, he was not asked about the reason for the absence until after the charge in the instant case was filed. This is admitted by Respondent's supervisor Orweiller, although the personnel records of Millenbaugh establish that the first absence was December 18, 1976, rather than late February or March 1977. Orweiller testified that with respect to the first absence he did not "quiz" Millenbaugh because he sus- pected it was related to a potentially embarrassing personal problem Orweiller knew Millenbaugh was experiencing at the time and he did not want to embarrass either himself or Millenbaugh about it. With respect to the second absence, Orweiller testified that his failure to "quiz" Millenbaugh was due to pure oversight. Only during the investigation of the charge in this case did he discover the oversight and then learned upon asking Millenbaugh about his April 30 absence that he had attended a square dance. While atten- dance at a square dance would not have been an "accept- able" reason, Orweiller took no disciplinary action because of the late discovery and the fact that the failure to discov- 2' These considerations were set forth in the testimon? of Shift Superin- tendent Lambert and were not disputed by the General (Counsel. Mans of them are also referred to in Respondent's rules previously noted herein, at fn 2 er it earlier was his own mistake. Orweiller impressed me as a straightforward and sincere witness. His testimony was not contradicted in any respect by General Counsel's evi- dence or witnesses and I credit it. Accordingly, I find no evidence of disparate treatment of Fruehling from Respon- dent's failure to discover Millenbaugh's unauthorized April 30 absence or discipline him for it. It is clear that Respon- dent's efforts to "quiz" employees regarding the reasons for their absences was a well established practice and policy as demonstrated not only by the employee records already noted herein but also by Respondent's final written warn- ing to Fruehling in August 1976, prior to his most recent union activity, when Fruehling refused to explain his ab- sence when asked by Orweiller. Thus, "oversight" or even an occasional intentional failure of a supervisor to "quiz" an employee about the reasons for his absence would not, under these circumstances, constitute disparate treatment of Fruehling. The General Counsel also invites comparison of the un- authorized absence record of Respondent's employee Tim- othy Etsinger to show disparate treatment of Fruehling. Etsinger had an unauthorized absence in July 1972, for which he received an oral warning. While he received oral and written warnings on other matters including chronic and excessive absence from work subsequent to 1972, Et- singer, an employee since 1965, did not receive another oral warning for an unauthorized absence until March 16, 1976. Thereafter, he received another oral warning on May 17, 1976, and a written warning on November 2, 1976, for unauthorized absences.22 On March 8, 1977, he had anoth- er unauthorized absence having been arrested and jailed for some alleged offense. According to the uncontradicted testimony of Plant Manager Tull, which I credit, Superin- tendent Frank L.ambert recommended that Etsinger be dis- charged due to the unauthorized absence but Tull decided against it on the premise that a discharge might in some way constitute Respondent's assumption of Etsinger's guilt of the offense for which he was arrested. Tull therefore decided on a disciplinary 2-day suspension of Etsinger in- stead. At the time of the hearing herein there had been no trial on Etsinger's case. Again, I find insufficient evidence of disparate treatment in Fruehling's case when compared with Etsinger's. Fruehling had received a very clear "final" warning in August 1976, after Respondent had determined that he had not heeded his prior oral warnings. Moreover, that final warning had followed his refusal to clarify or explain the reasons for his absence so that Respondent could determine whether such absence, although unauthor- ized, was for nevertheless acceptable reasons. This was prior to his involvement in the most recent union campaign at Respondent, and his discharge only followed another unauthorized absence when he again refused to cooperate with Respondent and state the reasons for his absence "out of town." Therein lies a marked distinction between Fruehling's case and Etsinger's, for there is no evidence that Etsinger refused to cooperate with Respondent in giv- ing the reasons for his absence. Indeed, Respondent's di- rector of industrial relations, George Arris, testified that 22 The record does not reflect whether this warning was toi he a "final" warning. 768 THE TIMKEN COMPANY insofar as his consideration of Fruehling's discharge was concerned, Fruehling's defiance of Respondent's question- ing of the reasons for his absence carried significant weight in the determination to discharge him. Accordingly, I find that Respondent's treatment of Etsinger's situation and the imposition of a lesser penalty upon him do not serve to establish disparate treatment of Fruehling. Finally, the General Counsel argues that even if the rec- ord is insufficient to establish disparate treatment of Fruehling, Respondent's refusal to produce certain docu- ments subpenaed by the General Counsel raises the infer- ence that such documents would, in fact, establish that Fruehling was treated in a discriminatory manner, citing Gvrodiyne (Cormparnt of America, Inc.., 203 NLRB 1120 (1973). Prior to the hearing, the General Counsel caused to be duly served on Respondent a subpoena dulces le(un re- questing, inter alia. that Respondent produce at the hearing herein: (I) personnel files and records, relating to discipli- nary action of any type taken against any employee of Respondent for unauthorized absences since April 1972: and (2) personnel files and records relating to disciplinary action of any type against any employee of Respondent for absenteeism of any type since April 1972. Respondent. while indicating that it would comply with the subpena request with respect to other items, moved to revoke the subpena with respect to the two areas enumerated above contending that such matters were irrelevant, that the subh- pena constituted a fishing expedition. and that the subpena was burdensome and oppressive requiring the production of some 100 personnel files of employees who had received disciplinary action for unauthorized absences and some 300 files for employees who had received disciplinary ac- tion for absenteeism of any type. At the hearing. I denied the motion to revoke the subpena solely on the ground that the petition to revoke was untimely filed. Respondent thereafter declined to comply with the subpena in the re- spects noted above and the General Counsel moved that an adverse inference be drawn from the failure of Respon- dent to produce the subpenaed material. I reserved ruling on the motion for this decision. Subsequently, as a compro- mise without waiving its position with respect to the valid- ity of the subpena, the Respondent offered to comply par- tially by producing the personnel files of any employee who had been discharged for absenteeism or unauthorized absences since January I. 1975. 1 allowed the General Counsel a recess for consideration of whether to accept the compromise or to seek enforcement of the subpena. After the recess, the General Counsel announced the determina- tion not to enforce the subpena and to accept the records proffered by Respondent. Nevertheless, after Respondent supplied the material which it had offered as a compromise and which the General Counsel utilized in his case in chief, the General Counsel renewed the motion for an adverse inference. After consideration of the matter, and in view of the compromise reached between the parties, I conclude that no adverse inference is warranted. The drawing of an adverse inference under the circumstances related above would constitute condonation of the breach of an agree- ment freely entered into. Even in the absence of the "compromise." however. I do not believe that an adverse inference is warranted. Clearl,. the documents requested relating to absenteeism of any kind would not be relevant to Fruehling's discharge which involved only unauthorized absences. While those person- nel files for employees disciplined for unauthorized ab- sences would be relevant there is considerable record evi- dence mostlx introduced bh the General Counsel showing Respondent's consistent concern over unauthorized ab- sences and reflecting disciplinary action by Respondent in connection therewith. Moreover, the record is clear that Respondent supplied the General Counsel with relevant personnel records and information sought by the General Counsel ilh respect to any employee named by the Gen- eral Counsel.2? I therefore reject the adverse inference urged upon me by the General Counsel. In view of all the foregoing. I do not find that the Gener- al Counsel has established by' a preponderance of evidence that Fruehline was the victim of disparate treatment. Nor do I find that Respondent's motivation in the discharge of Fruehling was based in ans xwax on Fruehling's union activ- ities. The discharge, from a timing standpoint, followed the occurrence of the event upon which the discharge was predicated. i e., the unauthorized absence. That it followed the Union election b' about a month has no independent significance under these circumstances. Ihere is no question but that Respondent, well aware of Fruehling's union acti',it',24 carefully deliberated concern- ing FIruehling's discharge and consulted with its advisors and counsel before reaching a final decision with respect to Fruchling's discharge and implementing that decision. Rather than showing a "preoccupation" with union con- cerns reflective of unlawful motivation as urged by the General Counsel this freely admitted consultation estab- li.hes onlN that Respondent took a careful and prudent approaich to the discharge. On the contrary, had Respon- dent been discriminatoril' motivated more precipitous ac- tion without resort to counsel following the occurrence of a clear basis of discharge would have been more likely. I am also not persuaded that Supervisor White's remark to employee Pollock regarding Fruehling previously found herein justified a conclusion that Fruehling was discharged for union activity. That remark stands as the only shred of evidence of union animus in the record and is. I find. insuf- ficient to establish that Respondent's stated reason for the discharge was pretextual in view of Fruehling's admitted unauthorized absence. his repeated refusal to explain that absence so that Respondent could determine if it were an acceptable absence, and his previous final written warning for unauthorized absences. 2' Accordingly, I find that Gen- eral Counsel has failed to establish by a preponderance of evidence that the stated reason for Fruehling's discharge \was pretextual and unlawfully motivated. 2 Joint t.xh h.a) thru l(h) herein contains disciplinars records of 10 narned emiplo eee, ing as far hback is 1963 :i t-nplo\er killttot ce <f union .ictleilles of an emploee dies not Insu- late Ihe cnipi see flOill dl.halrre fr ju1l caLle 1-ht Ttnlmln (omprrn, '213 Nl RB 48, 1 197'4 ' Addill, lltlls here Is I rtuchhn'n l estin inS that he had openl distribh- itced Ulilo ) hltrii iltlr i ' cicils li er Ill anther union campraign Hiad Re- ,piondeni l beetn dissed t retahite tairtst hll for Hilnuo icitlsi\t there Is ii tpp t i tren l tt r . l sIts l{ d 1 .L rit d . i at that tine 769 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent, The Timken Company, is an em- ployer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, International Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(aX3) and (I) of the Act in discharging Robert Fruehling. 4. Respondent has engaged in no unfair labor practices violative of Section 8(a)(1) of the Act which would warrant the issuance of a remedial order. (Recommended Order for dismissal omitted from publi- cation.] 770