Hewlett Packard Co.

DECISION OF THE NATIONAL LABOR RELATIONS BOARD 492 Hewlett Packard Company1 and United Steel Work- ers of America, AFL–CIO, CLC. Case 25–CA– 28591 March 29, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND MEISBURG On November 5, 2003, Administrative Law Judge Jo- seph Gontram issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Hewlett Packard Company, Palo Alto, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 Pursuant to the General Counsel’s motion, the administrative law judge amended the case caption to substitute “Hewlett Packard Com- pany” for “HP/Compaq Direct” as the Respondent. The Respondent excepted, arguing that “Compaq Computer Corporation,” which Hew- lett Packard had acquired in a merger, should be the respondent in this case. In finding no merit in the Respondent’s exceptions, we rely on evidence that Hewlett Packard defended the case at trial, its managers represented it at the facility at the time of the discharge and participated in the discharge, and it has admitted liability for any remedies that might result from this discharge. Accordingly, we agree that the judge acted properly in amending the caption. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 363 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We agree with the judge that the Respondent’s failure to conduct a full and fair investigation into Snead’s alleged misconduct, under the circumstances of this case, constituted evidence of discriminatory in- tent. We do not rely on the judge’s implication that a failure to investi- gate will always constitute evidence of such intent. In adopting the judge’s finding that the Respondent violated Sec. 8(a)(3) of the Act by discharging employee Snead, Chairman Battista agrees with the judge and his colleagues that the General Counsel has met his initial burden under Wright Line, 251 NLRB 1083 (1980), by showing that the Respondent disparately enforced its “remain in your work area” rule, and that the Respondent failed to establish that it would have discharged Snead even absent his union activities. Chair- man Battista finds it unnecessary to rely on the judge’s additional rea- sons for finding the violation. Kimberly R. Sorg-Graves, Esq., for the General Counsel. Paul E. Bateman, Esq. (Littler Mendelson), of Chicago, Illinois, for the Respondent. Anthony Alfano, Esq., of Gary, Indiana, for the Charging Party. DECISION STATEMENT OF THE CASE JOSEPH GONTRAM, Administrative Law Judge. This case was tried in Indianapolis, Indiana, on July 10 and 11, 2003. The charge was filed February 21, 2003, and the complaint was issued April 29, 2003. The complaint alleges that Hewlett Packard Company1 (the Respondent) violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by dis- charging its employee, David Snead, because Snead assisted the United Steel Workers of America, AFL–CIO, CLC (Union) and had engaged in concerted activities. The issue is whether Snead’s actions in assisting the Union and the Union’s organiz- ing campaign were a motivating factor in the Respondent’s decision to discharge him, and if so, whether the Respondent would have taken the same action without regard to such activi- ties. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, manufactures and custom- izes computers at its facility in Indianapolis, Indiana, where, during the past 12 months, a representative period, it sold and shipped goods valued in excess of $50,000 directly to points outside the State of Indiana, and purchased and received goods valued in excess of $50,000 directly from points outside the State of Indiana. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. 1 The General Counsel submitted a motion at the conclusion of the hearing to amend the name of this case to substitute Hewlett Packard Company for HP/Compaq Direct, the party originally named as the Respondent. Hewlett Packard Company, in whose name the complaint was defended, is the successor to Compaq Computer Corporation (Compaq) pursuant to a merger between the companies in May 2002. Compaq was a wholly owned subsidiary of Hewlett Packard and was the employer of all employees involved in this case until December 31, 2002, at which time Hewlett Packard became the employer. Compaq Direct was a name used by Compaq to describe the services of a wholly owned subsidiary of Compaq. Hewlett Packard represents that it is the successor under Board law to the employer at the time of the alleged unfair labor practices. Hewlett Packard has stipulated that it is liable for any remedies that could result from these proceedings, including post- ings, backpay, reinstatement, and any other remedy found appropriate. Accordingly, I have granted the General Counsel’s motion to amend the caption of the case. 341 NLRB No. 62 HEWLETT PACKARD CO. 493 II. ALLEGED UNFAIR LABOR PRACTICE A. Management and the Plant In April 2002,2 Keith Heinrich was named the director of the Respondent’s Indianapolis facility,3 the highest management position at that facility. In May 2002, Stan Smith was trans- ferred from the Respondent’s Ontario, California plant, and was named the production manager, the second highest manage- ment position at the Indianapolis facility. Since at least May 2002, and at all relevant times to this proceeding, the following persons held the following positions: Pamela Elliott, human relations manager; Jonathon Hughes, shift supervisor; Kyle Degonia, shift supervisor; Jason Shryock, shift supervisor; Rob Haverly, quality assurance supervisor; and Mark Hancock, team leader. Shift supervisors have the authority to recommend that an employee be disciplined, up to and including discharge. Team leaders do not have the authority to impose or recom- mend discipline. The Indianapolis facility is approximately 400,000 square feet. The manufacturing or CAMS room, where computers are customized, is 50,000 square feet, or about 1 acre. Other areas in the facility include a bulk storage area, small parts storage area, raw and process area, receiving dock and offices, inbound area, high-density storage area, assembly areas, shipping area, the out of box audit (OBA) area, and miscellaneous offices and other areas. In August 2002, there were approximately 1500 workers employed at the Indianapolis facility, including part- time employees. B. David Snead and the Commencement of the Organizing Campaign David Snead began working for the Respondent in 1998.4 In approximately 2000, he was promoted to technician II or senior technician. In this position, he worked with and assisted six junior technicians in locating and assembling servers, parts, and hardware in order to construct and configure computers. The Respondent had four shifts for its employees. In August 2002, Snead was working the first shift of the week consisting of three successive 12-hour shifts from 7 p.m. to 7 a.m., Sunday night to Wednesday morning, plus every other Saturday. How- ever, for religious reasons, Snead did not work on Sundays, so his Sunday shift began on Monday at 12 a.m. In approximately February 2002, Snead had discussions with several coworkers about the possibility of being represented by a union. Snead then contacted the Union and a meeting was arranged for March 4 between these workers and the Union. Soon after the meeting, the organizational campaign began. Snead attended the initial meeting with the Union as well as all subsequent organizational meetings, which numbered about 10. 2 All dates are in 2002 unless otherwise indicated. 3 The parties and witnesses also referred to this facility as the Georgetown Road facility. 4 Snead began working for Van Star Company or Inacom Corpora- tion, predecessor corporations to Compaq Computer Corporation. There have been several mergers/takeovers involving the Respondent in this case. See also fn 1. In light of the stipulations of the parties and the representations of the Respondent, I will refer to the Employer and any successor entity as the Respondent. The employees who met with the Union formed an organizing committee, and Snead was a member of the committee. The Union considered Snead to be its lead organizer at the Respon- dent. In early May, Snead became an open, visible advocate for the Union. He made himself available to coworkers to discuss the advantages of organizing. He talked to employees about the Union. He distributed union pamphlets at work. He regularly wore a shirt to work that advocated the Union in large letters, and was wearing this shirt on the day he was discharged. He made stickers for his car that advocated the Union and dis- played those stickers in the car’s rear window. He regularly drove his car to work and parked in the plant’s parking lot. No other employee was as open or visible as Snead was in his sup- port for the Union. The Respondent was well aware of Snead’s active support for the Union. As noted, he openly displayed his support on a shirt he wore to work. On one occasion, Snead observed Hughes with other employees standing behind Snead’s car in the parking lot while Hughes was pointing at the union signs on Snead’s car. Hughes and this group quickly disbanded when Snead approached them. On one occasion, Hughes was follow- ing Snead as Snead was walking within the plant. Hughes asked Snead to stop and he then stared at the back of Snead’s shirt which contained the following note: “United Steelworkers of America District 7 UNION YES /.”5 Thus, the Respondent’s managers not only knew of Snead’s support for the Union, but they also made a point to let Snead know that they knew. Hughes did not deny or explain this implicitly threatening be- havior regarding Snead’s open support for the Union. Although Hughes admitted that Snead made his union sym- pathies obvious, Smith was reluctant to admit that he knew of Snead’s union organizing activities. For example, Smith several times attempted to downplay or discredit his knowledge by saying in a disparaging manner that he had only received anec- dotal reports of Snead’s union activities. If Smith truly doubted the reliability of anecdotal reports, such doubts should have applied equally to discredit the alleged basis for Smith’s dis- charge of Snead, which was the single anecdotal report of a team leader.6 Nevertheless, the anecdotal reports of Snead’s union activities were reports received from other managers, precisely the type and source of information upon which man- agers often rely in making decisions. In spite of how Smith would characterize the source of his knowledge of Snead’s union activities, Smith accepted the accuracy of these reports that Snead was actively supporting the Union at the Respon- dent’s Indianapolis plant. On August 13, the employee organizing committee decided to start soliciting employees to sign union authorization cards. On August 18, Jason Shryock notified Pamela Elliott, as well as other managers, that Snead had been advocating the Union with other employees in front of the plant. Elliott, in turn, sent this information directly to Heinrich and Smith in an e-mail desig- nated as “high” importance, the highest such designation for e- mail transmissions at the Respondent. Elliott also sent a copy of 5 GC Exh. 20. 6 See GC Exh. 6. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 494 this e-mail to her supervisor in California. The Respondent makes no claim that Snead was doing anything wrong in con- ducting organizing activities in front of its plant. Nevertheless, it is significant that lawfully protected activities should receive such immediate and high-level attention by the Respondent. These e-mails between the Respondent’s managers, includ- ing the two highest managers in the plant, confirm that the Re- spondent knew of Snead’s support for the Union. The e-mails also show that as of August 18 or 19, about 1 week before Snead was discharged, Snead’s active solicitation for the Union was brought to the attention of and was circulated among the Respondent’s highest managers. Adding to the conclusion that the Respondent was aware of and was concerned about Snead’s organizing activities is the fact that the e-mail regarding Snead’s union activities was copied to the two highest ranking executives at the Indianapolis plant, six shift supervisors, only one of whom supervised Snead, and a corporate officer in Cali- fornia. C. Discipline on May 30, 20027 On May 30, approximately 1 month after Snead began to openly support the Union, Snead received the first discipline he had ever received in 4 years of employment at the Respondent. According to Hughes, he observed Snead on May 23 making copies of documents in a suspicious manner.8 The copier ma- chine was in the cubicle area where managers had their offices. Hughes claimed that he observed Snead put the original of the document he copied between the other pages he had in his hand. This, according to Hughes, was suspicious. Hughes’ demeanor on the witness stand, including tone of voice and eye contact, demonstrated, and was consistent with, a person who does not like unions and does not like persons who are members of unions. Moreover, he showed little regard for the oath he took as a witness. For example, Hughes testified that he had no knowledge of the reason Snead was discharged. (Tr. 79.)9 However, prior to the present hearing, Hughes had been selected by the Respondent to testify at the State hearing on Snead’s claim for unemployment compensation benefits. At that hearing, Hughes testified under oath that the reason Snead was discharged was because he had been out of his work area on August 25. Hughes attempted to explain the inconsistency between these two, sworn statements by stating that his testi- mony at the unemployment compensation hearing was only based on his review of the file that the Respondent had given to him. However, Hughes never explained why he would have testified, and did testify, at the present hearing that he had no knowledge as to why Snead was discharged. This statement was simply not true, and Hughes must have known that it was 7 Time-barred conduct may be considered to evaluate events that oc- curred within the statutory period. Property Markets Group, 339 NLRB No. 31 fn. 2 (2003). Moreover, Snead’s discipline on May 30 was the first he received at the Respondent and it was the only other discipline that Heinrich relied on when he ordered that Snead be discharged. Accordingly, the circumstances and propriety of the May 30 discipline may and should be considered in evaluating the lawfulness of Snead’s discharge. 8 GC Exh. 7. 9 Tr. refers to the transcript of the hearing in this case. not true. And Hughes’ credibility is not enhanced by his at- tempt to impeach his own testimony at the State unemployment compensation hearing. The document that Hughes observed Snead copying on May 23 was work instructions that Snead was copying to give to one of his six junior technicians. After Snead made the copy (he had only made one copy at the copier), Hughes approached him and asked to see what he had made. Snead showed him and held out all six copies of the instructions for Hughes to see or take if he wished. Hughes did neither. He simply asked Snead again and again to show him what Snead had copied. On every occasion, Snead complied with Hughes’ request. Hughes was still not satisfied, possibly because he hoped to find nonwork- related materials in the documents, and there were none. The Respondent has no policy regarding employee use of its copier machines. Heinrich testified that he expected the copiers would only be used for company business. However, there is no evidence that this expectation was communicated to the Re- spondent’s employees or that any other rules were ever im- posed on or communicated to the employees. Troy Robson, a configuration technician, confirmed that he is not aware of any rule regarding use of the copier. Also, there was no evidence that any employee had ever been stopped by a manager to in- spect something the employee had just copied. Yet, on May 30, less than 1 month after Snead began openly supporting the Union, he became the first and only employee, insofar as the evidence in this case discloses, who was ever stopped by a manager to inspect what the worker had copied. Since the Respondent has no rules regarding employee use of the copiers, it is unlikely that Hughes would have been so closely observing Snead as to see him placing the document that he copied at the machine into the middle of the documents he held in his other hand. There was no reason for Hughes’ to be observing Snead at all, let alone this closely. On the other hand, if Hughes’ had been watching Snead this closely, which I do not accept, the possible, if not likely, reason that springs to mind is Snead’s recent and open support for the Union and Hughes’ demonstrated hostility towards Snead’s union activi- ties. I reject Hughes’ claim that Snead acted suspiciously. I do not credit Hughes’ description of the incident, and I do credit Snead’s description of the incident. The evidence shows that Snead did not act suspiciously. Moreover, there was no legiti- mate reason for Hughes to stop Snead and ask to see the docu- ment he had just copied. The only plausible reason, a reason consistent with Hughes’ demeanor on the witness stand and with Hughes’ threatening actions in staring at Snead’s prounion shirt and pointing to the prounion placard on Snead’s car, is that Snead had recently begun openly supporting the Union, and Hughes was hoping to find that Snead had copied non- work-related documents so that Hughes would have a suppos- edly proper reason to discipline Snead. Hughes was not even Snead’s supervisor at this time. Hughes wanted to discipline Snead because of Snead’s open support for the Union. How- ever, there were no such documents, so Hughes decided to construct another reason to discipline him- Snead’s alleged insubordination in refusing to show Hughes what he had just copied. But Snead did show the document to Hughes. More- HEWLETT PACKARD CO. 495 over, Snead several times offered all the documents in his hand to Hughes, but Hughes refused to take them. Hughes notified the top three management officials at the Respondent concerning his alleged encounter with Snead on May 23. Hughes and Smith decided to discipline Snead by suspending him for 3 days, placing him on probation for 1 year, and issuing a final warning to him. Even if one were to credit the insubordination claim put forward by the Respondent at the hearing, which I do not, this discipline seems unduly harsh for the alleged offense. Moreover, Snead curiously was issued a “final” warning, despite the fact that it was also his first disci- plinary warning. The discipline of Snead is somewhat unique in the Respon- dent’s facility of approximately 1500 employees. The Respon- dent represented at the hearing that from January 1, 2002, to the present it had records reflecting the discipline of only four em- ployees in the entire facility that had received discipline for any of the reasons for which Snead was discharged.10 The infrac- tions were for unauthorized absences from work, leaving the work area without approval, and failing to pay attention to work. There were no infractions dealing with the use of the copier machine. Indeed, there is no evidence that the Respon- dent has ever disciplined any employee for any actions involv- ing the copier machine. This absence of discipline is also con- sistent with the Respondent’s failure to have or communicate any rules regarding the use of the copier machine. D. Termination on August 27, 2002 As noted above, on August 13, the employee organizing committee decided to start soliciting employees to sign union authorization cards. Snead signed a card on that date and started soliciting other employees to sign cards. On August 18 and 19, Snead’s organizing efforts were noted by management and were communicated via e-mail to shift supervisors, to the high- est management officials at the plant, and to corporate person- nel in California. Indeed, Snead’s organizing activities were of such interest to the Respondent’s management that Shryock, who had observed Snead soliciting employees for the Union, sent his e-mail to Elliott and other managers on Sunday at 6:18 a.m., just before he left for vacation. On August 27, Smith, after receiving instructions from Heinrich, terminated Snead’s employment. The events that precipitated the termination occurred on Sunday evening, Au- gust 25, just prior to the start of Snead’s shift. Mark Hancock reported in an e-mail of August 27 to his supervisor, Rob Haverly, that Snead had been seen talking to two employees in the OBA area on the previous Sunday night, and that he had been talking to these two employees about signing a union authorization card. Hancock’s e-mail did not disclose how he learned of or heard about this allegation. Haverly forwarded Hancock’s e-mail to Elliott. Elliott, in turn, forwarded the e- mail to Heinrich and Smith. After receiving the e-mail, Heinrich notified Smith to discharge Snead for failure to follow instructions. This entire process was handled with great dispatch. Han- cock sent his e-mail at 6:36 a.m. and by 8:54 a.m. Heinrich had 10 See GC Exhs. 12–15. ordered Smith to terminate Snead. Moreover, within 6 minutes of the time that Heinrich received the e-mail from Elliott, he sent an e-mail to Smith directing him to terminate Snead. Heinrich conducted no investigation of the allegations in Han- cock’s e-mail. Indeed, conducting an investigation of the alle- gations was apparently so unimportant to Heinrich that he could not remember whether he talked to Smith and Elliott before or after he ordered Smith to discharge Snead. If Heinrich had conducted an investigation, he would have discovered that Snead was in the OBA area before the start of his shift, not while he was working. Heinrich would also have found out that Snead had a proper reason for being in the OBA area because he was looking for his supervisor. Snead wanted to talk to his supervisor before starting work because many employees had already been sent home,11 and Snead wanted to find out if he should report for work that day. Snead did find his supervisor during his search, and his supervisor told him that there was no work and there was no need for Snead to clock in. Although Snead did briefly talk to two employees while he was in the OBA area, conversations like this between and among employees as well as managers were common. Snead was also careful to not disrupt a worker who was busy, and the two employees he talked to while he was in the OBA area were not busy. The fact that these workers were not busy is also con- sistent with the Respondent’s acknowledgement that it had sent many employees home during that shift because it was not busy at this time. The Respondent has no rule prohibiting employees from talking amongst themselves or with other employees as they walk through the plant. It was a common practice in the Indian- apolis plant for employees to talk to other employees while they moved about the plant. And such conversations typically involved subjects having nothing to do with work. In particular, employees would often talk to other employees about their families and, especially, sports as they walked through the plant. Managers did the same, including Shryock and Smith. The conversations would generally last several minutes, some- times lasting as long as 15 or 20 minutes. Employees frequently stopped by Snead’s work area and talked to him. Smith himself had engaged an employee in a personal, nonwork-related con- versation in the employee’s work area, lasting approximately 45 minutes just a few days before the hearing in this case. Many employees, including technicians, are required to leave their work area and walk to other areas of the plant in order to do their job. Snead was a technician, and in order for him to perform his job of assembling computers and servers, it was necessary for him to go to other areas of the plant to obtain the hardware he needed to make the proper assembly. Many of the Respondent’s employees, including Snead, simply could not do their jobs without leaving their work areas and going into other work areas. It was common for any number of employees to walk, and be required to walk, to various other areas of the plant throughout the typical workday. 11 Occasionally, employees or entire shifts would be sent home if there was not sufficient work at the plant. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496 While Snead was working on August 27, his supervisor told him to report to Smith’s office. When Snead arrived, Smith told him he was being terminated for being out of his work area on Sunday night, and the matter was not open for discussion. Smith handed Snead a termination memorandum. (GC Exh. 8.) The memorandum confirmed, in part, what Smith had just told Snead as to why he was being terminated. The memorandum stated: “On Sunday, August 25, you were again observed out of your assigned work area conducting personal business.” Snead attempted to explain to Smith that he could not have been out of his work area on Sunday night because he was not even working that night, but Smith refused to discuss the matter or even to listen to Snead. Smith and Snead’s supervisor then escorted Snead out of the building. Smith claimed at the hearing in this case that the offense for which Snead was discharged had actually occurred on August 26. (Tr. 49.) This shifting explanation is not credible. The ini- tial e-mail that reported Snead’s presence in the OBA area stated that this had occurred on Sunday night, which was Au- gust 25. This date was repeated in the termination memoran- dum. Smith refused to even consider Snead’s explanation on August 27 that he was not working on August 25. However, by the time of the hearing, the Respondent was aware that Snead had not worked that night and must have appreciated the sig- nificance of this fact, viz., that Snead was terminated for doing something he could not have done. Accordingly, Smith testified that Snead’s actions occurred on August 26. This testimony is not credible and is rejected. The Respondent claims that it advised its workers, in meet- ings held by lower level supervisors, that employees were not permitted to walk around the plant. However, none of the Re- spondent’s employees, except managers who testified at the hearing, were aware of such a rule. The Respondent admits that this “rule” was not in writing. The credible evidence shows that there was no such rule at the Indianapolis plant. Moreover, even if there were such a rule, there was no enforcement of such a rule because the workers continued to walk throughout the plant as they had done in the past and as they were required to do in order to perform their jobs. This finding is corroborated by the lack of records showing enforcement of any such rule. For the period from January 1, 2002, to the time of the hearing, the Respondent disciplined only one worker, Josh Sears, for being out of his work area. Moreover, this single discipline also confirms the relative un- importance of the offense because Sears, who had been repeat- edly told to return to his work area, only received a letter of concern for his conduct. On the other hand, it is reasonable to assume that workers were not free to leave their work areas and roam the plant at will. It is also reasonable to assume that workers were expected to be in their work areas unless they had a work-related reason to be elsewhere. Indeed, both Smith and Hughes identified these limitations on the rule. However, Heinrich, who claimed to have instituted the rule when he took over command of the plant in April 2002, did not identify any limitations on the rule. Because the rule articulated by Heinrich defies common sense, because such a rule would prevent many of the Respondent’s employees from performing their jobs, and because the Re- spondent’s workers continued to leave their work areas for work-related reasons, Heinrich’s testimony regarding the rule is not credible. Nevertheless, accepting the existence of a rule prohibiting workers from being in other areas of the plant for nonwork- related reasons, the discipline for violating such a rule can only be speculated because of the Respondent’s failure to consis- tently or commonly enforce such a rule. Moreover, given the widespread practice of employees walking throughout the plant, as well as the slight “discipline” administered to Sears who had been repeatedly out of his work area, any discipline for violating such an unwritten rule would likely not include termination, except possibly in the most extreme and egregious case. The termination memorandum given to Snead also charged him with conducting personal business. However, the Respon- dent has no rule prohibiting employees from soliciting or con- ducting personal business. In fact, employees frequently and openly solicit for various purposes in the workplace. Employee solicitations have involved such diverse purposes as local schools, the Girl Scouts, help for families of employees, anni- versaries, and personal solicitations when employees have items for sale. Solicitations are made during working hours, in the plant, and in the presence of managers. Indeed, managers also participate in these solicitations. Thus, Snead was charged with doing something that had been an accepted practice and was commonly and openly done by employees and managers. The termination memorandum describes the reason for Snead’s termination as follows: “You are hereby terminated for knowingly violating established procedures and failure to fol- low work rules and instructions from your supervisor.” As noted above, the credible evidence fails to show that the Re- spondent had any established procedure prohibiting a worker from being out of his work area or from conducting personal business. In fact, the evidence shows just the opposite. The established procedure in the plant was that employees were permitted to walk throughout the plant on work-related matters and were permitted to conduct personal business. On April 18, Hughes verbally counseled Snead for leaving his work area. In accordance with standard policy, Hughes made a memorandum of that counseling. (Tr. 312; R Exh. 3.) In addition, Smith claims that he counseled Snead on June 27 about e-mails Snead had sent to Elliott, and there is evidence that, during that counseling, Smith covered items in the May 30 discipline, including that Snead should not be out of his work area. (GC Exh. 10.) Detracting from this evidence is the fact that Snead’s May 30 discipline did not concern him being out of his work area. Thus, if Smith counseled Snead on June 27 about the matters covered in the May 30 discipline, then he did not counsel Snead on being out of his work area. Moreover, Smith did not testify that he counseled Snead about being out of his work area. Accordingly, I find that Smith did not counsel Snead on June 27 about being out of his work area. Smith claims that other supervisors counseled Snead about being out of his work area. However, none of these alleged counseling sessions were documented, in spite of the Respon- dent’s standard policy of documenting such sessions. Accord- ingly, Smith’s claim that other supervisors, besides Hughes, HEWLETT PACKARD CO. 497 counseled Snead on being out of his work area is not credible since it is contradicted by company policy and is disputed by Snead. Hughes also claims that he counseled other workers for be- ing out of their work areas, but that he did not document these occasions. (Tr. 320.) It is significant, then, that Hughes did document the only time he allegedly counseled Snead for being out of his work area. This disparate treatment of employees indicates that Hughes had an ulterior, unexplained purpose for treating Snead differently from other workers. Also, the mere fact that Hughes counseled Snead on April 18 for being out of his work area should have no impact on Smith’s evaluation of Snead’s actions on August 25, unless Snead had no work-related reason for being out of his work area and this was known by Smith.12 But neither of these con- ditions is met in this case. First, Snead did have a work-related reason for being in another area of the plant on August 25 be- cause he was properly looking for his supervisor to find out if he should report for work. (And, as it turned out, his supervisor told him that he should not report because there was not suffi- cient work at the plant.) More important, Snead was not even working when he was seen in the OBA area. Second, Smith did not know if Snead had a work-related reason for being in the OBA area or if Snead was even working at that time because Smith refused to investigate the charge and refused to even listen to Snead when he discharged Snead. In any event, whether Snead was counseled by Hughes or Smith or by anyone else is irrelevant to Heinrich’s decision to terminate Snead because Heinrich admitted that he did not know whether he was aware of such warnings when he issued the order to fire Snead. Heinrich’s decision was based, accord- ing to him, on Snead’s May 30 discipline and the e-mail of August 27, not on any other alleged warnings to or actions by Snead. E. Comparable Employees As noted above, the Respondent’s records show that only four employees were disciplined between January 1, 2002 and July 2003 for any of the reasons for which Snead was dis- charged. Only two of these occurred before Snead was termi- nated. None of the four disciplines involved a termination. The four disciplines produced by the Respondent are as fol- lows. Kristi Benberry was suspended for 1 day because of in- subordination and leaving the work floor to talk on the tele- phone. Jason Bybee received a written warning for excessive absenteeism and failure to complete his work. Josh Sears re- ceived a letter of concern for talking with others after being repeatedly told to return to his work area. Christopher Wheatley, who was disciplined after the charges in the present case were filed, was excluded from certain benefits because of taking an unscheduled smoking break. Significantly, Benberry and Sears, whose actions most closely resemble what the Re- spondent claims Snead had done on August 25, were both given warnings to return to their work areas before discipline was imposed. Snead was given no such warning on August 25. 12 This is because the Respondent, at least, had no rule prohibiting a worker from being out of his work area for work-related reasons. The dearth of comparable situations shows that the Respon- dent either had no rule prohibiting what Snead was accused of doing on August 25 or, if there were such a rule, even a rule prohibiting employees from walking around the plant for non- work-related reasons, the Respondent elected not to enforce it. The experience of technician Troy Robson, an open union sup- porter, is instructive. In approximately January 2003, Robson’s supervisor in- structed him to remain in his work area. However, Robson, like Snead, was required to get parts from other locations in the plant in order to perform his work. After about 1 week, Robson met with his and two other supervisors. He told them he could not do his job under this new rule that was applicable only to him. He called his supervisor an idiot, he told his supervisor to leave him alone and to stay the hell away from him. Robson then told the supervisors that they could write him up for in- subordination, he did not “give a shit. Better yet, you can fire me so I could give a shit less.” (Tr. 218.) The supervisors did not say anything. Robson returned to his work area and re- sumed working as he had in the past, that is, he resumed his previous practice, and the practice of all other technicians, of leaving his work area whenever it was work-related, and of talking to other employees when he was in other areas of the plant. Robson was not cited for insubordination nor given any discipline for this outburst. Indeed, management never men- tioned his outburst to him. F. Analysis Under the test set forth in Wright Line, when the Respondent is alleged to have violated Section 8(a)(1) and (3) in the dis- charge of an employee, the General Counsel has the burden of proving by a preponderance of the evidence that antiunion sen- timent was a substantial or motivating factor in the challenged employer decision. To meet this burden, the General Counsel must offer credible evidence of union or other protected activ- ity, employer knowledge of this activity, and the existence of antiunion animus. Briar Crest Nursing Home, 333 NLRB 935 (2001). Once unlawful motivation is shown, the burden shifts to the Respondent to prove its affirmative defense that the alleged discriminatory conduct would have taken place even in the absence of the protected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983). If the employer’s stated motive is found to be false, the circumstances may warrant an inference that the true motive is an unlawful one. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). The evidence demonstrates that the Respondent had knowl- edge of Snead’s union activities. Moreover, the e-mail sent by Hancock that reported Snead’s presence in the OBA area on August 25, and which was the basis for Heinrich’s decision to discharge Snead, states that Snead had solicited two employees to sign union cards. Of course, if the Respondent did not allow personal business or soliciting to occur in the workplace, then the purpose of Snead’s actions would be irrelevant. But the purpose was important to the Respondent or there would have been no need for Hancock to mention union activity. Hancock DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498 also added the apparently gratuitous comment in his e-mail that “there appears to be a big push now toward the Union since new folks have been hired.”13 Such a comment is and should be irrelevant to whether Snead had engaged in any misconduct. However, the comment was not irrelevant to how Smith and Heinrich would deal with the matter. Indeed, the comment was part and parcel of Smith’s and Heinrich’s motive in the quick decision after Hancock’s e-mail to discharge Snead. The Respondent contends that there is no evidence of anti- union animus. However, motive and union animus may be, and often are, proven through indirect and circumstantial evidence. Sahara Las Vegas Corp., 284 NLRB 337 (1987). All of the circum- stances in the case should be considered in making this deter- mination. Among the individual factors that the Board has found to support an inference of animus are (1) suspicious tim- ing, (2) the abruptness of the termination, (3) failure to ade- quately investigate the alleged misconduct, (4) disparate treat- ment of the discharged employee, (5) shifting or inconsistent explanations, and (6) false or pretextual reasons given to ex- plain the Respondent’s action. Medic One, Inc., 331 NLRB 464, 475 (2000); Dynabil Industries, 330 NLRB 360 (1999); Lampi LLC, 327 NLRB 222 (1998); and Master Security Ser- vices, 270 NLRB 543, 552 (1984). Suspicious timing alone may be sufficient to establish that antiunion animus was a motivating factor in a discharge deci- sion. Schaeff Inc., 321 NLRB 202, 217 (1996); NLRB v. Rain Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). The timing of the Respondent’s actions against Snead strongly and singularly supports an inference of animus. The first time Snead received any discipline during his 4 years of employment at the Respon- dent occurred within 1 month of his initial and open support for the Union. Snead’s next discipline was his last, and this oc- curred within 2 weeks after the Respondent’s two highest man- agers at the plant, the very managers who decided and carried out Snead’s termination, became aware that Snead had begun soliciting employee signatures for union authorization cards. Such timing between protected activity and termination is a highly significant indication of an unlawful, discriminatory motive for the termination. The abruptness of a discharge is persuasive evidence of mo- tivation. Schaeff Inc., supra; NLRB v. Sutherland Lumber Co., 452 F.2d 67, 69 (7th Cir. 1971). The Respondent acted beyond abruptly in terminating Snead. Six minutes after Heinrich learned that Snead had been out of his work area, or at least this is what Heinrich thought he had learned, Heinrich directed Smith to discharge Snead. And the lack of any investigation into the alleged reasons for Snead’s discharge necessarily flows from this extreme abruptness. The Board has consistently held that a respondent’s failure to conduct a full and fair investigation of an employee’s alleged misconduct is evidence of discriminatory intent. Firestone Tex- tile Co., 203 NLRB 89, 95 (1973). Here, not only was no inves- tigation conducted, but Heinrich was so unconcerned with mak- ing an investigation that he could not even remember whether he had talked to any of his subordinate managers before direct- 13 GC Exh. 6. ing that Snead be terminated. The timing and the manner in which Snead was discharged compels the conclusion that Snead was terminated because of his union activity, and the Respon- dent simply did not seem to care whether or not the discharge was supportable. In fact, it was not. The Respondent’s failure to investigate whether Snead had been out of his work area, and if so, why, is proof that it was not concerned with what such an investigation would disclose. In turn, this proves that the Respondent’s reason for the dis- charge, however that reason is characterized, was not the true reason for the discharge. The Respondent treated Snead differently from other em- ployees. There is no evidence that any of the Respondent’s managers ever stopped any other employee to inspect what that employee had copied at the copier. The Respondent treated Snead differently from other employees who had left their work areas for nonwork-related reasons. Indeed, if the Respondent had any applicable rule, it was a rule that required working employees to have a work-related reason before going to other areas of the plant. On August 25, Snead was not even working; moreover, he did have a work-related reason for going to an- other area of the plant. In addition, the Respondent has no rules prohibiting solicitations, and employees and managers com- monly participated in solicitations. However, when Snead did this on August 25, briefly and at a time when most of the Re- spondent’s workers had already been sent home, he was termi- nated. The only difference between what Snead did on August 25 and what other employees and managers commonly did was that Snead was soliciting signatures for the Union. The e-mail that reported Snead had been out of his work area stated that this occurred on Sunday night. The e-mail is dated Tuesday, August 27. (GC Exh. 6.) August 25 was a Sunday. In the memorandum reflecting Snead’s discharge, the date of Sun- day, August 25, is repeated. When Smith handed this memo- randum to Snead, Snead attempted to refute the charge by ex- plaining he was not working on August 25. Snead would not listen to him or allow him to explain. At the hearing, Smith, now realizing that Snead had not worked on August 25, and therefore could not have been out of his work area on August 25, testified that the event for which Snead was terminated actually occurred on August 26. This inconsistent, incredible testimony and the shifting explanation further weaken Smith’s credibility, and provide persuasive, independent evidence of an unlawful, discriminatory motive for the termination. The reason given by the Respondent for its discharge of Snead was false, both because Snead had not committed the misconduct with which he was charged and because the Re- spondent did not believe or care whether he had. The Respon- dent knew it had no rule prohibiting solicitations, but it dis- charged Snead, at least in part, because he solicited for the Un- ion. The Respondent knew that its workers could leave their work areas for work-related reasons, but it did not investigate whether Snead was even working, let alone whether he had a work-related reason for being in another area. It did not investi- gate because it had already decided to terminate Snead because of his support for the Union. My determination that the reasons advanced by the Respon- dent for its discharge of Snead are false and a pretext for its HEWLETT PACKARD CO. 499 actual motive in taking that action necessarily means that the asserted reasons were not relied on. Accordingly, there is no need to further address these reasons because a finding of pre- text “leav[es] intact the inference of wrongful motive estab- lished by the General Counsel.” Limestone Apparel Corp., 255 NLRB 722 (1981). Alternatively, because the Respondent’s reasons for discharging Snead are unsupportable under the standards it normally applies to its other employees, I conclude that the Respondent has not proven that it would have taken the same action in the absence of Snead’s protected activity. Hospi- tal San Pablo, 327 NLRB 300 (1998). For all the foregoing reasons, I conclude that the Respondent discriminated against David Snead and violated Section 8(a)(3) and (1) of the Act when it discharged Snead because of his protected activities. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) and (3) by dis- charging employee David Snead. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Having found that the Respondent unlawfully discharged David Snead, I shall order that the Respondent offer him rein- statement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of discharge to the date of a proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended14 ORDER The Respondent, Hewlett Packard Company, Palo, Alto, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any em- ployee for supporting the United Steel Workers of America, AFL–CIO, CLC, or any other union. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. 14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. (a) Within 14 days from the date of this Order, offer David Snead full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed. (b) Make David Snead whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the deci- sion. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of David Snead, and within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its fa- cility at Georgetown Road, Indianapolis, Indiana, copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respon- dent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since August 27, 2002. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO 15 If this Order is enforced by a judgment of the United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500 Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit or protection Choose not to engage in any of these protected activi- ties. WE WILL NOT discharge or otherwise discriminate against any of you for supporting the United Steel Workers of America, AFL–CIO, CLC, or any other union. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer David Snead full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privi- leges previously enjoyed. WE WILL make David Snead whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of David Snead, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. HEWLETT PACKARD COMPANY