Quartrol Corporation

QUARTOL CORPORATION Quartrol Corporation and United Steelworkers of America, AFL-CIO-CLC. Cases 10-CA-17107 and 10-CA-17508 February 10, 1983 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER On June 30, 1982, Administrative Law Judge Robert A. Gritta issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Respondent filed cross-exceptions and a supporting brief and a reply brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. In response to union activity conducted at its plant, Respondent's president, Richard Anderson, conducted a series of employee meetings during which he made various antiunion statements and granted an across-the-board wage increase, conduct which we find to be unlawful. Within a week of these meetings, Supervisor Scott Sheridan asked employee Amos Arnold how he was going to vote. Arnold responded by pointing to the union button he was wearing. The Administrative Law Judge found no viola- tion in this incident, characterizing the encounter as "typically the temperate and non-coercive dia- logue between supervisor and employees which ' Prior to the hearing in this matter, Respondent amended its admitted- ly overly broad no-solicitation rule to conform to the requirements of Board law as set forth in T.R. W. Bearings Division. a Division of TR. W., Inc., 257 NLRB 442 (1981). The Administrative Law Judge correctly found that, despite its voluntary amendment, Respondent violated the Act by maintaining an overly broad rule at all times material herein. The Administrative Law Judge also concluded that Respondent's work rules 16, 17, and 18 "are ambiguous in that the expressed variance from the amended section 41 rule remains as under the old section 41." However, the Administrative Law Judge failed to note that Respondent has also brought its work rule 18 into conformity with Board law by providing, in essence, that it is a violation of work rule 18 to violate the new no- solicitation rule. However, this apparently mistaken impression on the part of the Administrative Law Judge does not affect our decision herein. In determining the validity of no-solicitation, no-distribution rules, Member Hunter subscribes to the standard announced in Essex Interna- tional, Inc., 211 NLRB 749 (1974), rather than to the standard of T.R. W., supra. See his dissenting opinion in Intermedics. Inc.. and Surgitronics Cor- poration, a wholly owned subsidiary of Intermedics Inc., 262 NLRB 1407 (1982). Applying the standards of Essex International, he agrees with the findings of the Administrative Law Judge with regard to Respondent's no-solicitation rule. occurs frequently during campaigns and which is not condemned by the Act." We do not agree with the Administrative Law Judge's assessment of this incident. We have found that inquiries of this nature constitute "probing into employees' union sentiments which . . reasonably tend[s] to coerce employees in the exercise of their Section 7 rights." 2 This is true even in the absence of any threat of reprisal or promise of benefit and regardless of the employee's open support for the union. Accordingly, we find that Respondent did, in fact, violate the Act when Sheridan questioned Arnold about his support for the Union. 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, Quartrol Corporation, Birmingham, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining, giving effect to, or enforcing its no-solicitation rule as found in its employees' hand- book with its subsequent amendment which forbids employees from engaging in union solicitation on company property during working hours. (b) Soliciting grievances from employees in order to discourage union activity. (c) Granting wage increases to employees in order to discourage union activity. (d) Interrogating employees about their union sympathies. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Rescind the no-solicitation rule existing in its employee handbook including any subsequent amendments thereto to the extent that such rule prohibits union solicitations by employees on com- pany property during working hours. (b) Post at its plant in Birmingham, Alabama, copies of the attached notice marked "Appendix." s Copies of the notice, on forms provided by the Re- gional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- PPG Industries, Inc., Lexington Plant, Fiber Glass Division, 251 NLRB 1146, 1147 (1980). 3 In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 266 NLRB No. 14 120 QUARTROL CORPORATION secutive days thereafter, in conspicuous places, in- cluding all places were notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. MEMBER HUNTER, dissenting in part: I do not agree with my colleagues' finding that Respondent violated the Act when its supervisor, Scott Sheridan, asked employee Arnold how he was going to vote. Considering the nature of the inquiry and the fact that Arnold openly demon- strated his support for the Union by wearing a union button, I find the questioning to be noncoer- cive and, therefore, not violative of Section 8(a)(l). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain or enforce a rule which prohibits our employees from engaging in solicitations for a union on company proper- ty when our employees are not actually en- gaged in work. WE WILL NOT solicit grievances from our employees for the purpose of discouraging union activity. WE WILL NOT grant wage increases to our employees for the purpose of discouraging union activity. WE WILL NOT interrogate our employees concerning their union sympathies. WE WILL NOT in any like or related manner unlawfully interfere with our employees in the exercise of their rights to engage in union ac- tivities. WE WILL rescind the no-solicitation rule in our employees' handbook and any subsequent amendments thereto to the extent that such rules prohibit union solicitation by employees on company property during working hours. QUARTROL CORPORATION DECISION STATEMENT OF THE CASE ROBERT A. GRrrrTA, Administrative Law Judge: This case was heard before me on December 2 and 3, 1981, in Birmingham, Alabama, based on charges filed by United Steelworkers of America, AFL-CIO-CLC (herein the Union), and Lewis E. Graves, an individual, on June 19 and October 6, respectively; and complaints issued by the Acting Regional Director for Region 10 of the Na- tional Labor Relations Board on August 20 and Novem- ber 17, 1981, respectively. The two cases were consoli- dated for trial on November 20, 1981.' The complaint al- leges that the Quartrol Corporation (herein Respondent) violated Section 8(aXl) and (3) of the National Labor Relations Act, as amended, by maintaining an unlawful no-solicitation rule, soliciting grievances from employees, granting wage increases, interrogating and threatening employees, and by suspending and demoting employee Lewis E. Graves. Respondent's timely answer denied the commission of any unfair labor practices. All parties hereto were afforded full opportunity to be heard, to examine and cross-examine witnesses, to intro- duce evidence, and to argue orally. Briefs were submit- ted by the General Counsel and Respondent. Both briefs were duly considered. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor on the wit- ness stand, and upon substantive, reliable evidence con- sidered along with the consistency and inherent probabil- ity of testimony, I make the following: FINDINGS OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that Quartrol Corporation is a Delaware corporation en- gaged in the manufacture of valves and fittings in Bir- mingham, Alabama. Jurisdiction is not an issue. Quartrol Corporation, in the past 12 months, in the course and conduct of its business operations purchased and re- ceived at its Birmingham facility goods and materials valued in excess of $50,000 directly from points located outside the State of Alabama. I conclude and find that Quartrol Corporation is an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I con- clude and find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. BUSINESS OF RESPONDENT Respondent operates a shop wherein parts are ma- chined to varying degrees, assembled, and warehoused as final products of valves and fittings. The work force is composed of seven labor grades representing assemblers, machine operators, warehousers, machine specialists, I All dates herein are in 1981, unless otherwise specified. 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance and tool repair technicians, quality control, specialty machinists, and maintenance mechanics. Em- ployees are evaluated after the first 90 days, then at their 6-month service date, and thereafter annually on their anniversary. Each evaluation is composed of perform- ance factors judged by the supervisor as poor, below average, average, very good, or exceptional. Each per- formance evaluation receives a numerical grade deter- mined by the average of the employee's score on all fac- tors. The numerical average determines the amount of a wage increase, if any; a single chart is used by personnel to arrive at the wage increase allowed within the labor grade structure of each classification. As expected, those employees performing most proficiently realize the great- er periodic wage increase. Although the production of scrap parts is considered in the overall proficiency evaluation of employees, there is no hard and fast rule respecting quantity or quality of scrap necessary to require discipline. Respondent utilizes a training course funded by the State which is designed to help employees who are functioning at a reduced skill level. The program is free to employees and entirely vol- untary. Successful completion of the course results in a wage increase and/or an upgrade in classification, whereas any unsuccessful attempts dictate no personnel action for the employee. Discipline of employees is accomplished through a procedure of progressive warnings for like offenses. The first offense receives a verbal warning (albeit it is me- moralized on paper). The second offense receives a writ- ten warning and subsequent offenses are dealt with by a 3- or 5-day suspension, which may lead to discharge. Chronic absences or tardiness are disciplined under a merit and demerit point system and any employee accu- mulating the maximum points is suspended and/or termi- nated. Points are accumulated as follows: Tardiness of I hour or less, 25 points; up to 4 hours, 50 points; up to 6 hours, 75 points; more than 6 hours, 100 points. Absence, 100 points. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. No-Solicitation Rule Respondent maintained for a period beginning in De- cember 1980 an admittedly "too broad" no-solicitation rule which was communicated to employees through its employee handbook: Section 41 No Solicitation It is Quartrol policy that no solicitations be con- ducted by employees on Company property. Employees will not participate in collections or charitable drives when they are supposed to be working, nor will they be permitted to be conduct- ed in a manner that will interfere with the work of other employees. A rare occasion may arise when exception to this rule will be permitted in the case of an approved charity. However, this must receive prior approval by Management. Section 43 Work Rules Quartrol has established the following rules to pro- vide safety and a good work environment for its employees while engaging in efficient business oper- ation. It is impractical to make rules to cover every situa- tion, therefore, you are expected to maintain a high standard of conduct in work habits and relationships with your Supervisors and fellow workers. The following are the most typical violations of ac- ceptable behavior requiring disciplinary action: (inter alia) 16. Selling and buying of lottery tickets, raffles, etc., without specific and definite authority from Management. 17. Participating in games of chance or gambling or betting on Company property. 18. Distributing literature of any sort or soliciting participation in any organization on Company prop- erty during working hours.2 Respondent offered evidence that as of November 30 the no-solicitation rule was modified to conform with exist- ing Board law by a written clarification of "working time" and "work areas." 3 The clarification was dissemi- nated to employees by posting of an employee notice amending the employee handbook and was served on the General Counsel prior to the hearing of this case. The General Counsel acknowledged receipt of Respondent's modification and its apparent conformity with Board law, but contends that the alleged unfair labor practice must be remedied. Respondent counters that having re- medied the unfair labor practice prior to hearing of this case, the allegation is moot and does not require a remedy. Albeit Respondent's rule is no more than a tech- nical violation and was promulgated when presumptively valid under then existing Board law, I am compelled to apply today's law to the printed rule. As I view the un- disputed facts and law, the General Counsel would be entitled to a remedy in this decision notwithstanding Re- spondent's voluntary modification of its preexisting rule. Therefore, on the facts alone, I would deny Respond- ent's motion to dismiss the allegation in the complaint. Further, however, as I perceive Respondent's rules re- specting solicitations, in addition to work rule 18 both work rules 16 and 17 are, without more, ambiguous in that the expressed variance from the amended section 41 rule remains as under the old section 41. I refer specifi- cally to rule 16's qualification of "without specific and definite authority from management" and rule 17's pre- ' Neither the motivation for promulgation nor the enforcement of the rule is subject to attack herein. T.R. W Bearings Division, a Division of TR. W. Inc., 257 NLRB 442 (1981). 122 QUARTROL CORPORATION scription of "on Company property." Therefore, I con- clude and find that Respondent's no-solicitation rule, before and after modification, constitutes a violation of Section 8(a)(1) of the Act and Respondent's attempt at modification does not obviate the need for a remedial order.4 B. Solicitation of Employee Grievances, Wage Increases, and Threats of Discharge The undisputed evidence discloses that during the first week in June union activity was rumored in the plant and, in fact, several employees engaged in union solicita- tions. On Monday, June 8 (the only such incident) union officials circulated leaflets to employees at the plant gate during shift change. A portion of the leaflet invited em- ployees to a union meeting at the union hall the follow- ing afternoon, on June 9. The morning of June 9 Re- spondent's president, Anderson, held an unprecedented plantwide meeting of 55-60 employees, in which he made antiunion statements interspersed with statements pertaining to administration, working conditions, and production in the plant. That same afternoon Anderson held small group meetings of employees, repeating the morning's statements and announcing monthly depart- mental meetings to be held thereafter. On June 11, at an employee's request, Anderson agreed to meet with em- ployees for discussions at a local lounge after the first shift ended. Approximately 20 employees attended in ad- dition to Anderson and his secretary, Christina La Russa. La Russa and employee Arnold took notes of the discus- sion albeit each set of notes was incomplete. Everyone but La Russa imbibed of alcoholic beverages during the 1-1/2 hour meeting. William A. Lovell testified that he attended both com- pany meetings held on June 9 or 10. Lovell recalled that Anderson displayed the union leaflet which had been dis- tributed by the Union at the plant gate and asked why the need for a third party to come in and settle differ- ences. Anderson informed the group that effective Monday, June 8, all employees would get a 50-cent across-the-board raise and that henceforth meetings would be held in each department to settle any differ- ences and problems between the employees and the Company. Lovell had no substantive recall of the after- noon small group meeting. Lovell did attend the meeting of June 11 and recalled that Anderson, in response to why Lewis Graves had been laid off, said it was because of his union activities and when he returns on Monday he will be fired or either have a choice of taking a lesser job because Graves could not do the work in the special shop. Lovell also stated that Arnold at the conclusion of the meeting read his notes out loud to those around him. La Russa did not read her notes out loud. J. A. "Amos" Arnold testified that he attended the plantwide meeting on June 8 or 9. He recalled that An- derson said "We don't need a union" and told the em- ployees that everyone was getting a 50-cent-an-hour in- crease in wages. Although Arnold attended the small group meeting in the afternoon he had little recall. 4 Cf. Shultz Foods Company. Inc., 260 NLRB 1177 (1982). Arnold did attend the June 11 meeting at the Boon Dock lounge and took notes of the event, although he did not get word for word, he did record what he con- sidered the most important. He wrote fast so his hand- writing was poor which necessitated his sister rewriting his notes that evening to improve the writing and spell- ing. Arnold's original notes were destroyed. Arnold re- called that Anderson stated that the Company did not need a union nor a third party because we would work it out ourselves. Arnold asked why the Company had sus- pended Graves and Anderson responded that when Graves returned on Monday he would be fired because he was head of the Union. When asked about a pension plan, Anderson stated he would get right on it and did post a notice the following day that a plan was in effect. In response to questions on wages Anderson said that any employee completing the training course would get an automatic raise even if they were at the top of their classification. Toward the end of the meeting Arnold read his notes to those in the vicinity but not directly to Anderson. Arnold did not ask Anderson anything about the contents of his notes. Christina La Russa, Anderson's secretary, attended the June 11 meeting at the Boon Dock lounge expressly to take notes of the meeting. She utilized speedwriting but was unable to record verbatim. After the meeting closed she returned to the plant to lock her notes up for the night. The following morning she typed her notes and submitted them to Anderson for his approval. La Russa testified that Anderson opened the meeting with: "We are all here to meet and talk about complaints and to get some things out in the open, and we'll have a question and answer period; if anyone has any questions, feel free to ask and I'll answer them for you." One ques- tion was raised about the attendance point system being unfair and Anderson said he would tear it up and look into this further to see if a system could be made up that everyone could agree upon. Anderson's response to the question of Graves' suspension was that it was due to quality of work and his failure to attend the training class. Anderson stated he would look into the situation on Monday. Other questions dealt with favoritism, racial discrimination, pension plan, wages, chain of command, and lack of knowledge of employees' rights. Anderson said he could not correct everything that has happened in the past, but he can correct some of them. He stated that he started the monthly meetings so problems can be worked out. Richard Anderson testified that he decided over the weekend to call the June 9 meeting to announce a corpo- rate decision previously made on June I to give all em- ployees a 50-cent-an-hour wage increase. Anderson stated that the previous November a general wage in- crease was given and the policy was established then to review the wage structure every 6 months. Although he gave such review instructions to the personnel depart- ment, he did not inform the employees of the policy. In addition, prior wage announcements were communicated to employees via written memoranda. Anderson also re- stated the Company's open-door policy with a new modification, "The Company has gotten too big for the 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD open door policy even though it exists. Let's get togeth- er on a departmental basis today and maybe we can kick these around." Anderson acknowledged that the union leaflets on June 8 bear witness to the breakdown of com- munications and the existence of complaints in the shop. Anderson also stated that the basis for the 50-cent-an- hour increase in June was the high turnover among entry classifications in April; the regular 6-month review; and an improvement in absenteeism as shown by the point system which resulted in a savings he wanted to share with the employees. Later, at the departmental meetings, the same day, An- derson stated, "We had better get together on some kind of a regular, periodic basis and review some of the prob- lems that we have. There's a lot of things I can't do any- thing about but some things I can. Hey you guys can't have everything you want, but you can have some of the things you want. We're going to resolve these things." A suggestion box was to be incorporated to partially imple- ment resolutions favorable to employees. At the suggestion of an employee, Anderson agreed to meet with several employees to kick some things around. Anderson suggested meeting at his home but the employ- ees wanted a public place such as the Boon Dock lounge. Anderson agreed and did meet on June 11 with about 20 employees. The ensuing discussion included the point system, pensions, lack of blacks in the office, Lewis Graves' suspension, and favoritism in the shop. When asked why Graves was suspended, Anderson said it was a disciplinary layoff for the quality of work produced and that he would be off suspension when he returned Monday. Anderson did not state that Graves was the union leader nor was union activity stated as a cause of Graves' suspension. He did not state to the employees that Graves would be discharged upon his return to work. Anderson had directed La Russa to keep minutes of the meeting and he was aware that Arnold was taking notes of what transpired at the meetings. C. Analysis and Conclusions The General Counsel contends that Anderson's re- marks at the plant on June 9 and at the Boon Dock lounge on June 11 constitute violations of Section 8(a)(1) of the Act because they occurred with knowledge of the employees' union activity. Supervisor Davis admittedly heard rumors of union activity among employees on June 5, and on June 8 the rumors were confirmed by leaflets at the plant. It is undisputed that prior to the union activity the employees were completely without knowledge of any general wage increase, plantwide meetings, departmental meetings, or a desire on the part of management to prime its open-door policy. Even, as- suming that Anderson decided the weekend of June 6 and 7 to call the plantwide meeting on June 9, his moti- vation is clearly the rumored union activity. The depart- mental meetings were admittedly instituted to discover the existing employee problems which Respondent an- ticipated the third party union would attempt to solve and to forestall that resolution through a newly con- ceived suggestion box. Additionally, Anderson immedi- ately resolved several problems at the meetings by re- scinding existing policies and promising to institute new policies. Anderson's explanation of the genesis for the 50- cent-an-hour wage increase is not completely supported by his expressed factors. The point system designed to improve attendance, contrary to his assertion, was not successful. My analysis of the exhibit shows simply that employees who had no attendance problem either main- tained their existing level or improved their accumula- tion of bonus points for consecutive days work. Addi- tionally, those employees with an attendance problem continued at the same accumulative level of demerits or accelerated their accumulation. Clearly there was no change in overall attendance that could be measured as a savings to the plant. Thus, the origin of the wage in- crease was not shared benevolence. Assuming, arguendo, that the wage increase was a product of several months investigation by the parent corporation (only supported in this record by Anderson's recall of events) it is obvi- ous to me that the announcement was timed specifically to induce employees to abandon their support for the Union. I conclude and find, based on the above, that Re- spondent, through Anderson, did attempt to interfere with employees' organizational rights by granting a 50- cent-an-hour wage increase; by soliciting employee grievances, and by rectifying selected grievances. The record evidence pertaining to threats of discharge for en- gaging in union activity is not so clear. Witnesses who were present at the Boon Dock lounge recalled different accounts of the events. The differences are substantial and deal with the specific event of Graves' suspension. Both La Russa and Anderson deny that union activity or a termination therefor was mentioned. Arnold specifical- ly recalls a direct statement of Graves' involvement in union activity as the cause of the suspension and possible termination. Lovell, on the other hand, recalls the men- tion of union activity coupled with a disjunctive that Graves was unable to do the work in the specials shop and would have to take a lesser job upon his return from suspension. Anderson's and La Russa's protestations to the contrary, notwithstanding, I conclude that the em- ployees did hear union activity mentioned but I cannot, with certainty, connect it to a threat of discharge. Both sets of notes were incomplete when taken and were re- written to enhance their intelligibility. I do not find either set of notes a help in determining what was actual- ly said at the Boon Dock Lounge or supportive of any witnesses' testimony. There was undeniable concern over Graves' ability to produce quality work in the specials shop which was common knowledge among employees and management. It is not plausible to me that Anderson would neglect to base Graves' discipline upon such lack of quality. Similarly, it is implausible that a manager of Anderson's experience (in the presence of a recording employee) would so blatantly flout an impermissible cause for discipline and extend it to a future discharge. I cannot completely credit any witness on the substance of the June 11 meeting nor can I conclude and find that a threat against union activity was uttered. I do conclude and find that the General Counsel has not sustained his allegation of an unlawful threat by a preponderance of substantial and reliable evidence. The allegation must therefore fail. 124 QUARTROL CORPORATION D. Interrogation Amos Arnold testified that the week following the em- ployee meeting at the Boon Dock lounge he was walk- ing through the plant when Supervisor Scott Sheridan asked him how he was going to vote. Arnold continued walking without saying a word and pointed to the union button he was wearing. Nothing further was said at the time nor was any action taken by management against Arnold. 5 E. Analysis and Conclusions Under Board precedents, the interrogation of employ- ees who openly declare their union affiliation to manage- ment concerning their sympathies does not constitute a per se violation of the Act.6 Any scrutiny of alleged in- terrogation must consider all the circumstances to deter- mine whether solicitation of such information reasonably tends to interfere with the free exercise of employees' rights under the Act. The interrogation here occurred well after the time when employees knew that manage- ment was aware of their union affiliation. There is no evidence that management acted upon the response or suggested to any employee that management would act unfavorably to any prounion response. In short, Sheri- dan's single question of Arnold was neither coercive nor uttered under circumstances which would induce fear of reprisal among employees. On balance, considering the technical aspect of violative interrogation, and the fact that the plant atmosphere was one of open and free dis- cussion of what the Union could do for the employees, I conclude and find that Sheridan's attempt to engage Arnold in conversation about the Union is typically the temperate and noncoercive dialogue between supervisor and employees which occurs frequently during cam- paigns and which is not condemned by the Act. Accord- ingly, I shall recommend dismissal of the 8(a)(1) allega- tion based on Sheridan's questioning of Arnold. F. Lewis Graves-3-Day Suspension and Demotion Lewis Edward Grades testified that he was given an employment test when hired in 1980, but was not tested on machines. The following month, September 1980, he was transferred to the specials shop as one of five spe- cialist under the supervision of Foreman William Davis. In November 1980 he received the general increase of 25 cents and began coverage under the new point system for absences and tardies. November 10, 1980, he received his 90-day evaluation resulting in a below-average rating and received a corresponding wage increase of 37 cents. During November he also received several oral warnings for his quality. On November 26 Graves received his first written warning for scrapping 7 of 14 stem adapters he was assigned to make on a special order, an order that consumed approximately 2 days' work. During the fol- lowing months Graves received demerits under the point system for excessive absences. On May 10 his 6-month evaluation was "poor" and his wage increase was 14 cents. On May 20 Graves completed an order for eight s Scott Sheridan did not testify. 6 See Flight Safety, Inc., 197 NLRB 223 (1972). stem adapters of which two were scrapped. Davis showed Graves the scrapped stem adapters but did not issue any written discipline. The following week, on May 29, he was disciplined for excessive absences and re- ceived a 3-day suspension effective June 1-3. The next day (May 30) Graves contacted the United Steel Work- ers for organizational purposes. While suspended Graves conducted employee meetings in a public park and solic- ited employee signatures on authorization cards. On June 1 seven employees attended his meeting and all signed cards. On June 2 only five employees attended and one signed a card. In all Graves signed up eight employees. Union Representative King was present and gave addi- tional cards to three employees to be passed out at work. At this time the employees present set a meeting at the union hall for the afternoon of June 9. Graves' only ac- tivity in the plant was to converse with employees about the Union. Graves returned to work Thursday, June 4. The fol- lowing Monday after finishing a 2-day assignment of 16 end caps he learned from Davis that 8 of the 16 were scrapped but did not see the scrapped parts. This same day the plant entrance was leafleted at quitting time by Steelworkers representatives announcing the union meet- ing for the following afternoon, June 9. At the union meeting, union literature and symbols were distributed to employees and Graves got two buttons to wear on his clothing displaying USW. The next morning he went to work wearing one button on his cap and one on his shirt. Graves arrived for work at 6:55 a.m., for his 7 a.m., starting time. Davis looked at Graves' button on his hat and asked, "Organizer of what?" Graves responded, "USW, a volunteer union organizer." Davis shook his head and walked off. At 7:30 a.m., Davis called Graves to the desk area. Davis showed Graves a handwritten warning for the May 20 stem adapters and the scrapped end caps of June 8. Graves testified that the warning car- ried a suspension of 3 days for poor quality work. The conversation lasted about 10 minutes. Graves then went to his toolbox, locked it, and started through the plant accompanied by Davis. As they passed through the warehouse Davis saw Neal Jackson, production man- ager. Davis told Jackson that Graves refused to sign the warning. Jackson did not say anything and Davis and Graves continued walking. Davis offered Graves a ride home but Graves refused. Graves left the plant arriving home at 7:55 a.m. Graves was on suspension June 10-12. He returned to work on June 15. Graves, on average, produced parts requiring rework twice a week. He stated that William Lovell also had problems with producing quality parts and Davis regu- larly spoke to both of them about it. Approximately July 14 Graves got an order to make 241 end caps. Graves spent 3 days producing the end caps. July 20 all 241 parts were returned to the specials shop with an orange tag by inspector Rick McKelvy. The tag stated that all 241 pieces had to be reworked. Davis reinspected each part and retagged them. Davis' inspection showed that 5 pieces were good, 12 pieces were scrap, and 223 pieces had to be reworked. At 2 p.m., on July 21, Davis called Graves to Jackson's office. Graves testified that Jackson 125 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, "due to lack of quality in my work I was being transferred to another department, assembly, because that was the only job available at that time." Graves asked "what alternative if any," and conjectured-"that failure to accept the assembly job would result in dis- charge." Davis said it would not be like a discharge but more like quitting if he failed to accept the assembly job. Jackson added, "If you don't accept the job, You won't be working here." Graves accepted the assembly position which was a lower labor grade than his former position. Specifically he went from $6.01 per hour to $4.50 per hour. Graves denied any colloquy with Jackson about the training course or any testing to facilitate a re-entry into the specials shop. Graves did express no surprise that a successful completion of the course or its test could qual- ify him for the specials shop. Albeit Graves had attended one session of the training class in May, he made no fur- ther attempts to avail himself of the training either before or after his involuntary transfer to assembly. Graves ex- pressed his failure to attend the training thusly, "For my own benefit I didn't see any need to. Because I felt that everyone makes errors to a point; no one is perfect." William Lovell testified that he, Graves, and several other employees wore union buttons to work on June 10. In all, approximately 15 employees wore buttons to work. That same morning Lovell overheard Graves and Davis talking at 7 a.m. in the shop area. Lovell testified that he heard, "Just something about wearing the buttons to work and what we was trying to organize a union and all.... Why was we wearing a union button and what we was trying to organize." Lovell also stated that reworking of parts was not un- common. In the last 6 months he had produced parts re- quiring rework 12 to 14 times. David always counseled the employees on quality and rework requirements but written discipline was not necessarily issued with such counseling. Rework may or may not be done by the original machinist. Lovell has reworked other employ- ees' parts and other employees have reworked his. The majority of parts made in the specials shop do not re- quire rework but the incidence of rework for Graves is higher than other employees in specials. In all cases of rejections the parts are inspected to determine what rework is required and then someone is assigned the work. Lovell stated that the 241 end caps of Graves' was the largest rework order he had seen. Lovell's estimate of time involved in the order was I week to make them and I week to rework them. William Davis, supervisor of the specials shop, testified that he first became aware of union activity in the plant on June 5. Besides handbills in the parking lot, there were rumors in the plant. The following week on June 9 at 7 a.m., Davis informed Graves that 11 of 16 end caps completed the day before were rejected by Quality Con- trol. Davis issued to Graves a handwritten warning for the stem adapters of May 20 and the end caps of June 8. The warning did not include any suspension for poor quality work. 7 After Davis showed the handwritten Davis stated that suspending employees was not his function as de- partment supervisor. warning to Graves he destroyed it without any entry in Graves' personnel file or discussion with Jackson. Davis destroyed the handwritten warning in an attempt to fore- stall any automatic suspension of Graves. Subsequent to destroying the handwritten warning Davis spoke to Jackson about Graves' poor quality of work. A meeting was held in Jackson's office with Davis and Graves at approximately 7:30 a.m., either the same day or the day before. Jackson told Graves that he was aware of the bad end caps and in view of the background was going to suspend him for 3 days. Jackson prepared a layoff slip but Graves refused to sign it. s Davis returned to the shop and Graves left the plant. Davis further testified that Graves was not wearing union buttons when he was suspended nor were any other employees wearing but- tons on that day. Davis did see Graves wearing union buttons on his cap and shirt on June 15 when he re- turned to work from his suspension. Upon seeing Graves' button, Davis remarked, "what is that?" Graves respond- ed that it was a union button and Davis shook his head without saying more and walked off. Davis saw 15-20 employees wearing union buttons in the plant that same day. Later Graves told Davis that when he was suspend- ed he visited the National Labor Relations Board and filed for an unfair labor practice and went to the NAACP. Davis acknowledged Graves' statement with an "okay." Although Davis did not participate in the decision to transfer Graves to assembly, he had assigned the work to Graves which resulted in the transfer. Graves received a hot order to machine 241 end caps. The print called for the fire lip on the end cap to be cut within .051 and .056 inches allowing .005 tolerance. Graves' production of the parts varied from .061 to .073 inches; i.e., the machining of the fire lip was not within the print specifications. Neal Jackson, production manager since January 1981, testified that Davis spoke to him on June 9 about Graves' work quality. Davis reported that on June 8 Graves produced five good end caps out of 16. Eleven end caps were scrapped. Jackson checked Graves' per- sonnel file and found a prior written warning for work quality, so he decided to give Graves a 3-day disciplin- ary layoff. The morning of June 10 Jackson filled out the suspension form and during a 7:30 a.m. confrontation with Graves in the office he presented it to Graves. Graves refused to sign it without comment on the scrapped parts. Jackson stated that at the time Graves was disciplined on June 10 neither Graves nor any other employee was wearing union buttons in the plant. Jack- son did state that he was aware of union activity at the plant as early as June 5 but did not know of Graves' in- volvement until he returned to work June 15 wearing union buttons for the first time. Jackson further testified that in July Graves ran 241 end caps, of which, 223 had to be reworked, 6 were scrapped, and 12 were acceptable. These end caps consti- tuted the largest rework order the shop had ever had and required 40 hours to perform the rework. As a result 8 At some point between November 1980 and June 1981 the written warning procedure was changed from handwritten warnings to company forms with blanks to fill in. 126 QUARTROL CORPORATION of that particular operation management decided to transfer Graves to a lower position because of his dem- onstrated inability to perform quality work by holding tolerances. On July 21 Jackson, with Davis present, in- formed Graves of the transfer. Jackson testified: It was proven by the 223 or 241 according to Qual- ity Control-rework parts that he did not have the ability to do the work in the special shop. There- fore, I was giving him the opportunity to transfer to assembly. I informed him that that was the only opening in the shop at that time. I also informed him of his options to take the State Alabama indus- trial development school, or to take the test of the ongoing class at that time, and then have an oppor- tunity to bid into the machine shop, to gain experi- ence there, and then have the opportunity to bid back into the special shop." Graves did not avail himself of the classes or the test to attempt a re-entry into the specials shop.9 Graves was the only employee below average. Three were average and two were above average. Analysis and Conclusions The General Counsel contends that Graves was sus- pended and demoted because of his union activity, not the quality of his work. Although the General Counsel argumentatively disputes poor workmanship of Graves on June 8 involving the end caps, the record clearly shows that Graves produced only 5 acceptable pieces in an order of 16. Graves' production deficiency in May in- volving the eight stem adapters is admitted except for Graves' reference to the use of the two scrapped parts. The record shows that Graves was mistaken. The six stem adapters used in the order were shipped despite their marginal acceptance. The two scrapped stem adapt- ers were not used nor shipped to customers. Thus the General Counsel's case rest not on the accuracy of the scrap records but rather the motivation of Respondent in disciplining Graves. The General Counsel argues that Respondent's failure to discipline Graves on May 20 for the stem adapters but addressing such prior production in the June discipline is evidence of a motive other than proficiency. The record, however, shows Respondent's policy is to expect and accept some scrap and rework of parts with the complexity of the job, time consumed in production, and percentage of scrap or rework related to the whole order as factors used to decide propriety of discipline or not. Not only is such a policy borne out by this record, but also such a policy only makes good sense. Graves' admissions of poor quality of his work are hardly qualified by the unsupported assertions that others produce the same poor quality. General Counsel's wit- ness Lovell stated without qualification that Graves had more trouble than anyone with scrap and rework and the evaluation evidence in the record supports such a single performance of Graves. The General Counsel further contends that the sequence of events culminating in Graves' suspension are founded upon Graves' union ac- 9 Six appraisals of machinists in the specials shop were made in 1981. tivity rather than his quality of production, even assum- ing his quality was low and needed improvement. As the General Counsel argues in brief, the testimony of the se- quences is dotted with lack of specific recall and inability of all witnesses (save Graves) to attach a date to the events.10 It is true that Graves, whether due to a better recall mechanism or not, did have a factual association with his union activity; e.g., his union activity began during a disciplinary suspension for excess absences, tar- dies, and/or leaving the job early; his most active form of unionism (soliciting employees' signatures on authori- zation cards) occurred during this suspension and not on plant property; the one union meeting sponsored by the union was widely advertised by leaflets distributed by nonemployees on a date not subject to question (June 8) and union buttons distributed at the union meeting (June 9) were worn by Graves and approximately 15-20 other employees in the plant the following day, June 10. Re- spondent's witnesses were wrong on the dates as to when activity started at the plant and when employees openly expressed union sentiment by wearing buttons during work. I credit Graves' testimony that he and other employees wore union buttons beginning June 10 and for several days thereafter. This, however, does not carry the day for the General Counsel. " It is uncontro- verted that Graves on June 8 scrapped 11 of 16 parts, notwithstanding Graves' protestations that he did not see the parts, which was customary, when Davis counseled employees on keeping their quality up. That Graves first learned of the bad parts during his talk with Davis on June 10 is not credited. Davis credibly testified that he informed Graves of the bad parts at quitting time on June 8 and wrote the handwritten warning to Graves on June 9. Davis also informed Jackson of the quality prob- lem on June 9 and Jackson decided that same day to dis- cipline Graves. Therefore, both the basis for the disci- pline and the decision to discipline predates any knowl- edgeable union activity of Graves. The General Counsel tacitly acknowledges this discrepancy in the sequence of events by pointing to the apparent i-day delay by man- agement to effect the discipline of Graves. The record evidence, however, shows the preoccupation of manage- ment with employee meetings of June 9 thereby explain- ing the apparent delay. The General Counsel has offered little evidence of animus by Respondent toward the Union and none directed specifically at Graves. The inci- dent between Davis and Graves' union button not only occurred after the discipline decision but was not suffi- cient to establish that Respondent had singled out Graves for showing his union sympathy. Even if Graves had been the first to wear a union button to work (which he was not) or the only employee in the specialty shop to wear a union button (which he was not) or the only 'o I do not find that the lack of specific dates in the testimony or con- fusion about days of the week dictate findings against Respondent, for, in the last analysis the "sequence" is uncontroverted and the controlling date of June 10 is not in dispute. " The General Counsel must establish the allegations of his complaint by a preponderance of the affirmative evidence and the discrediting of any of Respondent's evidence does not, without more, constitute affirma- tive evidence capable of sustaining or supporting the Oeneral Counsel's obligation to prove his case. 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee to wear a union button on June 10 (which he was not), I could not conclude that Respondent was moved to discipline him for his union display. The evi- dence is substantial that Graves' performance was mar- ginal and his history of warnings for poor quality work is uncontroverted. There is no evidence to suggest dis- parate treatment of Graves by the suspension nor is there evidence to evince a departure by Respondent from its usual procedure of disciplining employees for poor qual- ity work. Rather, the record shows compassion by Davis who elected not to record the latest poor performance of Graves on June 8 in an effort to aid Graves in improving his quality, but Davis was overruled by his supervisor, Jackson, who suspended Graves for such performance. I, therefore, conclude and find that the General Counsel has not presented a prima facie case of illegal motivation by Respondent in suspending Graves on June 10 and thereby has failed to sustain his burden of proving dis- crimination by a preponderance of the record evidence. If I were to conclude that the General Counsel has made out a prima facie case I would still find no violation on the basis that Respondent has presented sufficient evi- dence to show that Graves would have been disciplined for his poor quality work even in the absence of his union activity. The General Counsel's allegation that Graves' demo- tion of July 21 was violative rests entirely upon his theory of discrimination on June 10 and its continuance through July. In view of my findings above and substantial evidence in the record to show Respondent's motivation for the demotion was work-related, I further conclude and find that the General Counsel has failed to sustain his allega- tion pertaining to Graves' demotion. CONCLUSIONS OF LAW 1. By maintaining a no-solicitation rule which prohibits employees from engaging in oral solicitation on company property during working hours, Respondent has inter- fered with, coerced, and restrained its employees in the exercise of their Section 7 rights in violation of Section 8(a)(l) of the Act. 2. Respondent has interfered with, coerced, and re- strained its employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act by solici- tation of grievances from employees while employees are engaged in union organizational efforts. 3. Respondent has interfered with, coerced, and re- strained its employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act by grant- ing a substantial wage increase at a time when its em- ployees were engaged in union organizational efforts. 4. Respondent has not threatened employees in viola- tion of the Act. 5. Respondent has not interrogated employees in viola- tion of the Act. 6. Respondent has not disciplined employee Lewis Graves in violation of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order the Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Albeit I have found that Respondent unlawfully grant- ed a wage increase to its employees, I shall not order it to rescind or in any way withdraw such wage increase. [Recommended Order omitted from publication.] 128