Pottsville Bleaching And Dyeing Co.

POTTSVILLE BLEACHING CO. 359 Pottsville Bleaching and Dyeing Company and Teamsters Union Local No. 115, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 4-CA-15420 27 March 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 20 May' 1986 Administrative Law Judge Ben- jamin Schlesinger issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions and a supporting brief in reply' to the Respondent's ex- ceptions. The National Labor Relations Board has delegat- ed 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, i and conclusions and to adopt the recommended Order.;z The judge found, and we agree, that the Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging employee Downey. The facts are not in dispute. Downey had been an active supporter of labor organizations at the Respondent's Port Carbon„ Pennsylvania facility since 1979 when he was the steward for the inde- pendent union that then represented the Respond- ent's production and maintenance employees. He was an observer in ,a Board-conducted election in 1980 when the Textile Workers attempted to orga- nize those employees. He solicited authorization cards and distributed pamphlets for the Teamsters and was an observer at elections held in March and December 1982. He "handed out cards and pam- phlets and talked with fellow employees in the Teamsters campaign in 1984 ' and served as an alter- nate observer ' in an election, that year. He was again active in enlisting support for the Teamsters in late 1984 and early 19851. Downey also was a 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility, resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Ay Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). We have carefully examined the record and and no basis for reversing the findings. 2 The General Counsel excepts to the judge's failure to include a visi- tatorial clause in the recommended Order A visitatorial clause authorizes the Board, for compliance purposes, to obtain discovery from the Re- spondent under the Federal Rules of Civil Procedure under the supervi- sion of the United States court of appeals enforcing the Board 's Order. Under the circumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request witness in two prior unfair labor practice proceed- ings involving the Respondent.3 Downey was on disability leave when a Team- sters election was held in March 1985, but voted in the election. As Downey stopped on his way out of the plant to talk to another employee, Plant Manager Horton told Downey to "get the hell out of the plant," but permitted another employee on disability leave to speak to other employees. At an employee meeting held in October 1984 Horton stated he could not afford any union problems, threatened to lock the Respondent's doors, and turned to Downey, saying: "Do you understand that, Ron?" Furthermore, Downey himself ac- knowleged that he was during this time, the "lead- ing union activist"' at the facility. Thus, the judge found sufficient evidence to impute to the Re- spondent knowledge of Downey's union -support for at-least 5'years.- During the week ending 8 January 1985 Downey produced "40% bad work" on, his dye machines, accounting for five out of nine lots that had to be reworked., On 14 January 1985 Horton issued Downey a "final warning," placing him on a 1-year probation and providing, in relevant part: Should any action on your part during this period of probation cause the issuance of a -written warning for any reason, you shall be terminated from Pottsville Bleach and Dye im- mediately and irrevocably. Or, if, during the term of your probation and as a result of Com- pany analysis, ' your job performance should produce an excess of seven percent (7%) rework in any one (1) week ' period, ,you shall be terminated immediately and irrevocably. Prior to that time, Downey had received only one warning, acknowledged by the Respondent to be ambiguously worded. It was issued on 19 June 1984 for excessive absenteeism. An unfair labor practice charge regarding, the 14 January warning was filed by the Teamsters on Downey's behalf, but was dismissed by the Acting Regional Director on 29 March 1985. Testimony regarding the warning was, however, adduced at the, hearing in the ' instant case. For instance, em- ployee Frederick Powers credibly testified that during the winter of 1985 he discovered a black, looseleaf notebook bearing on its cover the name "Richard Flagg," who was then the Port Carbon facility superintendent. The notebook contained the following: Q. Could it have been caused by bad water? 3 275 NLRB 1236 (1985) and 277 NLRB 988 (1985). 283 NLRB No. 55 360 DECISIONS OF THE NATIONAL LABOR-RELATIONS BOARD A. Yes. Q. Can we prove that the bad coppering was Downey's fault? A. Depending on the investigator's knowl- edge. Q. Can I fake my way through this? A. Yes. Because the General Counsel was not contesting the legitimacy of the dismissal of the earlier charge, the judge stated that he was bound to find that the warnings would have been issued in any event. He found, however, that this newly discov- ered evidence suggested that the Respondent not only purposefully attempted to blame Downey for the bad dye lots, but also schemed to prove that the bad dye lots resulted from Downey's error rather than from "bad water." Our dissenting col- league conveniently ignores this highly probative evidence regarding the Respondent's motive in placing Downey on probation. On 2 October 1985 Downey was discharged as- sertedly for an error he made on 26 September 1985 when he opened a roll of cloth on a rack with 26 other rolls and ordered all, 27 to be dyed the same color (blue). Unknown to Downey, the other 26 rolls were to have been dyed a different color (red). As the dissent points out, and the judge ad- mitted, Downey's error resulted from his failure to follow work instructions. What the dissent does not point out, however, is that the work instructions that required Downey to check each and every roll of cloth were given to him only a week before this incident. As found by the judge, Downey's legiti- mate understanding of opening procedure, based on training and past practice, was that he was respon- sible for matching only one roll with an order. Our dissenting colleague fails to mention other relevant facts. Although the Respondent may have discharged Downey "according to the terms of his probation," Downey's discharge was not consistent with the Respondent's, usual disciplinary system. As found by the, judge, the Respondent's official prac- tice was to issue an oral warning (written and placed in the employee's file), then a written warn- ing, then a final warning, followed by discharge for any further' violation. The judge noted that the system was not strictly followed: one employee re- ceived six notations, for bad work, followed, by five warnings, all but one' of which were for bad work, before he was discharged. Prior to Downey's. dis- charge, however, Downey had received only a warning for excessive absenteeism and a warning for his alleged dyeing mistakes in January 1985. Thus, the judge found, and we agree, that there is evidence of disparate treatment in the leniency ac- corded to other employees, as compared to the harshness of the discipline meted out to Downey. There is further evidence of disparate treatment. The dissent fails to acknowledge that Downey's error, characterized by the dissent as "major," proved to be correctable with no economic loss to the Respondent, unlike other employee errors made around the same - time. Downey's mistake was caught in time for the Respondent to switch the order numbers, use the lot mistakenly dyed blue, and have another lot dyed red for the same cus- tomer. Thus, no rework of Downey's job was re- quired, and the error did not cost the Respondent any money. In this respect, Downey's error con- trasted with the two other incidents of employee mistakes made in dyeing and finishing fabric in the summer of 1985 mentioned in the dissent, which not only necessitated reworking at the Respond- ent's expense but involved seven and eight times as much material as Downey was accused of incor- rectly designating. In both instances employees were "counselled" (with no writing memorializing an oral warning) rather than disciplined. Regarding the more serious incident of the two, the judge found further evidence of disparate treatment in the fact that employees as culpable as Downey were identified but not disciplined. The dissent's re- liance on the fact that those employees were not on probation, like Downey, is inaccurate and mislead- ing inasmuch as it fails to confront the fundamental issue in disparate treatment cases such as this: why employees responsible for a mistake ' far more Sig-' nificant than the one Downey made were,not'disci- plined at all by the Respondent. In finding evidence of the Respondent's pretex- tual firing of Downey, 'the judge also noted state- ments made by Horton at the time'of Downey's discharge: that Downey, was a good worker and that it was a shame he had to be terminated, that Horton would give Downey a good reference, and that "it was just too bad that [Downey] didn't obey the philosophies and policies of the company." The judge found that Horton's praise of Downey as, a good worker and promise to give him a good ref- erence was inconsistent with the Respondent's ' de- fense that Downey was fired as a result of bad work. We agree with the judge's finding that Nor- ton's praise of Downey's work is inconsistent with the, Respondent's defense based on Downey's work performance. In so doing, however, we find it un- necessary to rely on Horton's reference to compa- ny "philosophies, and policies," a phrase that we find in this context to be ambiguous at best. We note, finally, that the General Counsel did not rely solely on prior cases involving this Re- spondent in adducing evidence of ;antiunion animus. POTTSVILLE BLEACHING CO. 361 As found by the judge, there is evidence of antiun- ion animus in Horton's singling out Downey as part of his extemporaneous statements in opposition to unionization; the newly discovered evidence in- dicating- that the Respondent improperly "framed" Downey for poor dyeing that was not his fault; and the punishment meted out to Downey, admit- tedly administered in accordance with the terms of his probation, but indicative of disparate treatment when employees involved in a more serious error received no punishment at all. The clear prepon- derance of the evidence in this case establishes that the Respondent was looking - to seize on an oppor- tunity it had not had before to discharge , Downey because he was a union partisan. We find, therefore, that the General Counsel has met the burden under Wright Line4 of showing that a motivating factor for the Respondent's discharge of Downey was Downey's union activity. Further, the Respondent has not shown that it would have discharged Downey even in the absence of his union activity . Thus, we adopt the judge's finding that Downey's error was utilized by the-Respond- ent as a pretext for his discharge; that Downey would have been treated similarly to the other em- ployees responsible for processing - mistakes if he had not been an active Teamsters supporter; and that the real reason behind his discharge was his union activity. Accordingly, on the basis of all the foregoing, we adopt the judge's finding that the Respondent discharged Downey in violation of Section 8(a)(3) and (1) of the Act. ORDER The, National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Pottsville Bleaching and Dyeing Company, Port Carbon, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues I would reverse the judge's finding that the, Respondent's discharge of Ronald Downey violated Section 8(a)(3) and (1) and would dismiss the' complaint. The Respondent is engaged in the bleaching and dyeing of tubular fabrics and has been the object of several union organizing drives over the years. Since at least 1979 the, Respondent has been aware that Ronald Downey was an active union support- er. 4 251 NLLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Manage- ment Corp , 462 U.S 393 (1983). On 14 January 1985 Respondent put Downey on 1-year probation for producing "40% bad work" on his dye machines from 2-8 January 1985. The conditions of the probation, as stated in Downey's warning letter, were as follows: Should any action on your part during this period of probation cause the issuance of a written warning for any reason, you shall be terminated from Pottsville Bleach and Dye im- mediately and irrevocably. Or, if, during the term of your probation and as a result of Com- pany analysis, your job performance should produce an excess of seven percent (7%) rework in any one (1) week period, you shall be terminated immediately and irrevocably. Since you admitted during the January 11 meeting that you totally understand circum- stances surrounding conditions of employment for an employee on a Final Warning and pro- bationary period, you shall be held accounta- ble during ' this entire period. Downey's probation was the subject of an unfair labor practice charge filed by the Union but dis- missed by the Acting Regional Director 29 March 1985 and is not contested by the General Counsel here. On 26 September 1985 Downey made an error that resulted -in 26 rolls of cloth being dyed the wrong color and, according to the terms of his probation, was discharged . The judge found the error was caused by Downey's admitted failure to follow work instructions, and "without more, there appears to be cause for Respondent 's discharge of him, notwithstanding his union activities." The judge went on to find, however, that at the time of the discharge Plant Manager Horton praised Downey as a good worker, said it was a shame he' had to be terminated, that he would get a good ref- erence, and that "it was just too bad that [Downey] didn't-obey the philosophies and policies of the company." The judge found this praise indicated that Dow- ney's error "may have been a mere pretext for his discharge" (emphasis added), and noted that the Respondent's treatment of Downey was much harsher than that of other employees involved in errors requiring the reworking of significant orders. Although the judge mentioned the fact that Downey, unlike the other employees, was on pro- bation with notice that any further problem would subject him to discharge, he nevertheless cotlclud- ed, that the Respondent would not have disciplined him in the absence of his union activities, citing Horton's statement to Downey regarding his fail- 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ure to follow the Respondent's "philosophies -and policies." It is axiomatic that an employer's discharge of an employee violates Section 8(a)(3) and (1) only when the discharge is motivated by the employee's protected union activities.' Pursuant to Section 10(c) of the Act, the General Counsel has the burden of proving that the discharge was unlawful- ly motivated. Under the -procedural framework set forth by the Board in Wright Line,2 the General Counsel, must first establish that an employee's pro- tected activity was a motivating factor in the em- ployer's decision to discharge him. In my view, the- General Counsel has failed to meet that burden. Thus, the only evidence of union animus set forth by the General Counsel arose out of prior cases involving this employer, and an unfair labor practice charge that was dismissed once by the Region and again on appeal to the office of the General Counsel. The General Coun- sel attempted to introduce "newly discovered" evi- dence as background material relating to the charge but concedes that the lawfulness of the pro- bation is not at issue.3 It is undisputed that the Respondent was aware of Downey's union activities for at least 6 years prior to his discharge. Thus, Downey was an open and active union -supporter who served as steward in 1979-1980; observed in Board-conducted elec- tions in 1980 and 1982, solicited authorization cards in 1982, and was active in Teamsters campaigns in 1984 and- 1985. During this period of time, when Downey-was, by his own admission, the "leading union activist" at the facility, `the Respondent had ample opportunity to discharge him. In June 1984 he was put on probation for excessive absenteeism, a warning that was never alleged to be pretextual. While on probation he committed an error necessi- tating the rework of nine lots but, rather than dis- charging him, the , Respondent issued him a new final warning. This "was the probation that became the subject of the aforesaid unfair labor practice charge. ' The Respondent testified without contra- diction that in , January 1985 Downey had the worst redye record of any employee in the memory of the plant management. Clearly, if the NLRB v. Transportation Management Corp., 462 U.S. 393, 394 (1983). z 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Or. 1981), approved by the Supreme Court in Transportation Management, supra 3 Although I do not agree that union animus was a factor in the Re- spondent's decision to discharge Downey, it is well established that absent a showing of unlawful motivation, the General Counsel's burden will not be met solely by proof of union animus. Thus, an employer is not barred from, disciplinin g a proumon loyee for just cause simply be- cause the employer has exhibited some emp union animus. See NLRB v. A & T Mfg. Co., 738 F.2d 148, 151-152 (5th Cit. 1984). ' Respondent's desired end was to rid itself of Downey it could easily have done, so at that time. Yet the majority gives little weight to Downey's failure to follow work rules despite the fact that the January 1985 probation was found lawful. In denying the appeal of the charge's dismissal the General Counsel relied on the fact'that "the Em- ployer traced back its production process in order to determine which` employee had administered the various chemicals which, had resulted in the bad dye lots." The General Counsel found no evidence of disparate treatment towards Downey in the issu- ance of the final warning. The crucial,: uncontroverted fact in this case is that during the period of this second probation Downey again made a major error, resulting in 26 rolls of cloth being dyed the wrong color. My col- leagues find disparate treatment in the Respond- ent's discharging Downey pursuant to'the terms of his probation while failing to-'discipline' other em- ployees who were not on such probation - when they committed errors.-The two situtations-are not comparable. Finally, the judge relied chiefly on Plant Manag- er Horton's statement to Downey at the time of his discharge that Downey had not followed "the phi- losophies and policies" of the Company to support a fording that' D'owney's discharge was a pretext for the Respondent's true motive of ridding-itself of a union supporting troublemaker. The record does not support his conclusion. In July - and August 1985 the Respondent embarked on a campaign to resolve employee production problems and en- hance company productivity. To that end, in Sep- tember 1985 the Respondent distributed written procedures to avoid errors. The rules called for employees to check each price number of each-roll of material against each piece listed on an' order sheet. Although Downey admitted receiving the' in- structions document, he chose to ignore it and, in the incident that led to his discharge,- checked, only 1 roll out of 27 against the customer order sheet. As a result, the remaining 26' rolls were dyed the wrong color. Clearly, Downey, who was on proba- tion for careless ' work; was not an employee, who simply "made a mistake," but one who continually disregarded the Company's urgent', efforts to im- prove production. By failing to follow procedures specifically designed to eliminate rework, Downey demonstrated that he had no interest in the Compa- ny's concern over wasted worktime and produc- tion.' It follows logically that Horton's statement that Downey was not following the Company's philoso- phies and policies" referred precisely-'to that: the Respondent's repeated efforts to get Downey to POTTSVILLE BLEACHING CO. 363 follow instructions and avoid costly errors Were being frustrated. Downey's admitted negligence ran counter to the Respondent's goals and resulted in his discharge. In my view, the record taken as a whole provides no basis for the majority's finding an unlawful motive for the discharge over the lawful one set forth by the Respondent.4 As noted above, in establishing an 8(a)(3) violation, the Gen- eral Counsel must show the protected conduct was a motivating factor in the Respondent's decision to take adverse action. More than "suspicion"5 is needed. The General Counsel's case falls far short of this requirement. I therefore dissent. 4 Mini-Industries, 255 NLRB 995 ( 1981). a .Midwest Stock Exchange v. NLRB, 635 F.2d 1255, 1264-1265 (7th Cir. 1980); Hardwick Ca v NLRB, 263 NLRB 302, 306-307 (1982). Marvin L. Weinberg, Esq. and Richard P. Heller, Esq., of Philadelphia, Pennsylvania, for the General Counsel. Barry R. Elson, Esq. (Cohen, Shapiro, Polisher, Shiekman, and Cohen), of Philadelphia, Pennsylvania, for the Re- spondent. DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAw BENJAMIN SCHLESINGER, Administrative Law Judge. On 2 October 1985, employee Ronald Downey was ter- minated by Respondent Pottsville Bleaching and Dyeing Company. The complaint alleges that his termination violated Section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq.' Respondent denies that it was, contending that Downey was subject to a final warning letter, dated 14 January 1985, which placed Downey on probation for 1 year and stated: "Should any action on your part during this period of probation cause the issuance of a written warning for any reason, you shall be terminated from [Respondent] imme- diately and irrevocably." I find, as Respondent admits, that Respondent is a Pennsylvania corporation engaged in the bleaching and dyeing of tubular fabrics at its Port Carbon, Pennsylva- nia facility.2 During the year preceding the issuance of the complaint, Respondent received more than $50,000 for services performed on the goods of customers locat- ed directly outside Pennsylvania, which goods are shipped from and returned to the customers. I conclude that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.3 I also conclude, as Respondent admits, that the i The relevant docket entries are as follows : The unfair labor practice charge was filed by Teamsters Union Local 115, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters) on 12 November 1985; the complaint issued on 27 December 1985; and the hearing was held in Reading, Penn- sylvania, on 2-3 April 1986. 2 Respondent maintains another facility at Schuylkill Haven, Pennsyl- vania, called its Independence plant. 8 The Board in two earlier decisions has asserted jurisdiction over Re- spondent. 275 NLRB 1236 (1985) and 277 NLRB 988 (1985). Teamsters is a labor organization within the meaning of Section 2(5) of the Act. Downey was an active supporter of labor organization in Respondent's Port Carbon facility . In 1979- 1980, he was the steward for the independent union which repre- sented the production and maintenance employees. When the Textile Workers Union attempted to organize those employees in 1980, he was an observer in the Board-con- ducted election. When the Teamsters tried to organize in 1982, Downey solicited union authorization cards, dis- tributed pamphlets, and Was an observer at elections held in March and December 1982. He participated in another Teamsters campaign in 1984 by handing out cards and pamphlets and talking with employees, and he was an al- ternate observer in another election that year. Again, in late 1984 and early 1985 , he was active in enlisting sup- port for the Teamsters, although he was disabled with a broken ankle when the election was held in March 1985.4 After he voted in that election, Downey stopped on his way out to talk to another employee . Richard Horton, Respondent's plant manager of its Port Carbon facility, told Downey to "get the hell out of the plant," but Horton permitted another employee, also on disabil- ity leave, to speak to other employees. Furthermore, Downey was a witness in both prior unfair labor practice proceedings. Thus, there is sufficient evidence to impute to Re- spondent knowledge of Downey's union support for at least 5 years, but there is even more here . At an employ- ee meeting held in October 1984 , Horton stated that he could not afford to have any union problems whatsoever and turned to Downey, saying : "Do you understand that, Ron?"5 On 14 January 1985, Horton issued a warning letter to Downey that read, in part, as follows: It was pointed out. and by your own admission, you produced 40-percent bad work on your dye machines during the period from January 2, 1985 through January 8, 198'5. The performance is unlike any that can be recalled at Pottsville Bleach and Dye. Others running similar machines producing similar work, or on the same machine, but another shift, did not produce, in the least, the amount of rework you were responsible for during the period in question, or at any time outside of said period. Since you offered no mitigating reasons for your poor performance, the Company had no alternative but to initiate the following conditions for your continued employment: You are being issued a Final Warning for these incidents of poor quality performance , which imme- diately places you on a one (1) year probationary period. Your probationary period commences Friday, January 11 , 1985 and concludes on Friday, January 10, 1986. It is extremely important, and please be advised that during this probationary 4 The ballots were impounded and had not been opened at the time of the hearing. 5 This was not denied by Horton. The Board, in 277 NLRB 988, cred- ited this testimony, which included Horton's threat to lock Respondent's doors. 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD period, the following conditions shall exist: Should any action on your part during this period of proba- tion cause the issuance of a written warning for any reason,, you shall be terminated from Pottsville Bleach and Dye immediately and irrevocably. Or, if, during the term of your probation and as a result of Company analysis, your job performance should produce an excess of seven percent (7%) rework in any one (1) week period, you shall be terminated immediately and irrevocably. Since you admitted during the ,January 11 meeting that you totally un- derstand circumstances surrounding conditions of employment for an employee on a final Warning and probationary period, you shall be, held account- able during this entire period. This decision was based on a series of self-initiat- ing events of --poor quality performance on your part. Termination was not initiated for these inci- dents because of the ambiguity of the conditions of your current probationary period. Consequently, this decision shall not set precedent, nor shall it prejudice future cases of similar nature.6 - The Teamsters filed an unfair labor practice charge (Case 4-CA-14808-3) to protest this warning. It was dis- missed on 29 March 1-985 by the Acting Regional Direc- tor, who wrote: The investigation disclosed that the Employer issued a written warning to Ronald Downey and extended his probationary status for one year after he produced five bad dye lots in a period of five days. It was noted that Downey was not dis- charged, and the evidence established that other employees have been disciplined for similar of- fenses. Under such circumstances, the Board has held that an employee may be lawfully disciplined, even if the employee has also engaged in union ac- tivities or testified in a Board proceeding. See P.G. Beland Paint City, Inc., 199 NLRB 927; Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083. Accordingly, I am refusing to issue complaint as to the Section 8(a)(3) and (4) portions of the charge. The Office of Appeals affirmed this dismissal on 29 April 1985, finding that Respondent "had traced back its pro- duction process in order to determine which employee had administrated the various chemicals which had re- sulted in the bad lots" and that "the evidence failed to establish that [Respondent] engaged in disparate treat- ment." 'S On 19 June 1994, Respondent issued the following letter to Downey: The Company Work Rules state that a Final Warning places an employee immediately on twelve months' probation. It also states that any further violations during the twelve month period of proba- tion will result in immediate discharge Please keep this warning up- permost in your maid There was enclosed a copy of Downey's absenteeism record. Horton testified that he did not discharge Downey for the January 1985 incidents because 'his counsel advised that the June warning was ambiguous in its reference to Downey's record of absenteeism. The General Counsel does not contest the legitimacy of this -dismissal, relying as' it does on Wright Line,7 which permits Respondent, despite a showing that its discipline was illegally motivated, to prove that it would have taken,the same-action against Downey based on lawful considerations. But the General,Counsel also in- troduced evidence, as background for Respondents mo- tivation in the proceeding, to prove that ,there was more to the discipline of Downey than was considered by the Region and the Office of Appeals. Employee Frederick Powers testified that in late winter, in January, February, or March 1985, he happened on a black looseleaf folder, bearing the name on the ' cover "Richard Flagg," the then Port Carbon plant superintendent,- in which the' fol- lowing appeared: Q. Could it have been caused by bad water? A. Yes. Q. Can we prove that the bad coppering was Downey's fault? A. Depending on the investigator's knowledge. Q. Can I fake my way through this? A. Yes. This newly discovered evidence, of course, implies that Respondent not only purposefully attempted to blame Downey for the bad dye lots but also, schemed to prove that the bad dye lots resulted from his error, rather than their being caused by -"bad water." Thus, both the reason for the production error and the perpe- trator of the error ' were concocted, demonstrating that Respondent was prepared to use anything at its disposal to rid itself of Downey; and I am asked to extend this to a finding that the reason that Respondent desired to dis- cipline Downey in October' 1985 was his union activities. On the other hand, the General Counsel on numerous occasions during the hearing repeated his position that he was bound by the findings of the Regional` Office and was not arguing that the 14 January 1985 probation was tainted. Indeed, I fmd sufficient support in the record that Downey's work in the week commencing 2' January 1985 was as bad as Respondent claimed, that there' were five bad lots constituting 40 percent of the bad lots pro- duced in that period, and that others who prepared other bad lots were given oral warnings." Furthermore; Re- spondent- called Richard Flagg as' a witness, and Flagg testified that he maintained no such looseleaf folder and that he never wrote what was imputed to him. I do not credit his testimony. In weighing the testimo- ny, I fmd that Flagg,had much to gain in supporting his denials and that he was in early 1985 conducting a study of work that was improperly performed in the facility. T Approved in NLRB v, Transportation Management Corp., 462 U.S. 393 (1983). E Under Respondent's disciplinary system, the first warning is an oral warning, which is, notwithstanding its description, written and placed in the employee's file. The second warning is written. The next warning is a final warning, following which is a discharge for any further violation This system is not strictly followed. Employee Norman Umphrey re- ceived five warnings before he was discharged. All but one were for bad work. In addition, his personnel file contains six notations for bad work for which he was not given written warnings POTTSVILLE BLEACHING CO. Thus, it was not improbable that Flagg would, have writ- ten what Powers stated. I further find that Powers, sup- ported in part by employee George Chiccini, had little to gain from his testimony. It is true that Powers supported the Teamsters, which might give his testimony less weight; but he was also not friendly with Downey, with whom he had differences of opinion, on one occasion knocking a soda out of Downey's hand. Chiccini, who recalled that- there were questions and answers but was unable to recall specifically what, testified he "glanced" over, was positive that he saw the book with Flagg's name on it, and remembered that it mentioned that Dow- ney's "redyes" or "reruns" may have been caused by corroded water lines coming into the plant. Chiccini was not a Teamsters supporter, and both he and Powers be- lieved that they could be in trouble because they looked at the book. With-that fear, they, as current employees, would have no reason to fabricate their testimony about the existence of Flagg's book, which might get them in further trouble. The, book was not produced, although subpoenaed by the General Counsel. The only explana- tion for its nonproduction was that it never existed. I credit the employees' testimony that it did exist, find that there was no credible reason that it was not produced pursuant to the subpoena, and credit the testimony of the two employees. Bannon Mills, 146 NLRB 611 (1964); Auto Workers v NLRB, 459 F.2d 1329, 1338-1339 (D.C. Cir. 1972). Notwithstanding the imputation of an illegal-motive in the issuance of the 14 January 1985 warning, I am still bound to find that the warning would have been issued in any event. I turn then to the incident for which Downey was discharged. When Downey had recovered from his broken ankle, he was assigned as a dye opener. His duties included obtaining the raw material that was to be dyed. Each order was kept on a separate rack, which contained up to 35 rolls of cloth. The parties were at odds about what Downey was required to do once he received an order, which set forth the numbers of each roll required to fill the order. Inasmuch as the truckers at the Independence facility had separated'each order and put the rolls for that order on a separate rack, each roll being marked on the outside with a roll number, Downey testified that his sole responsibilities were to check the rack number, to check one roll on the rack against the order sheet, and then to count the number of the rolls to ensure that the number on the, order ' sheet matched. If that roll, was on, the sheet, the rest of the order should be on the rack. This testimony was cor- roborated by employee Daniel Daubert, who, worked for 3 weeks as a dye opener in 1978 or 1980. to the con- trary, Respondent's witnesses uniformly testified that Downey was to check each roll on the rack and check it off -against each roll number on the order to ensure that no rolls were missing, and that all rolls of cloth that were to be dyed were included in the order. Obviously, if an incorrect roll were dyed a different color, that roll would have to be redyed, an unnecessary expense for Respondent. What happened on 26 September 1985 was that Downey checked only one roll on the rack and' ascer- tained that the roll numbered 261770, which he opened, 365 was part of the order, number that was to be dyed navy blue. Downey's luck was bad. Out of 27 rolls on the rack, only the roll numbered 261770 was properly on the rack; the other 26 were part of another, of the same cus- tomer's goods, which were to be dyed red. So, all the rolls were dyed navy blue. I credit Downey, insofar as I find that he understood that it was his responsibility to match only one roll on the rack with the order. I discredit all testimony to the contrary," noting that Respondent could have called a current employee to testify to the practice but did not do so. Nor did it call Downey's supervisor who, Downey testified, gave him that instruction. However, Downey admitted that, only a week before the incident, he was given instructions that required him to match all the 27 rolls and not select only one. His explanation that he did not realize that the opening procedure had been changed is no excuse; he admittedly did not follow the instruc- tions and, without more, there appears to be cause for Respondent's discharge of him, notwithstanding his union activities. But, when he was discharged, Horton praised -him as a good worker and said it was a- shame that he, had to be terminated, that Horton would give Downey a good reference, and that "it was just too bad that [Downey] didn't obey the philosophies and the poli- cies of the company." Not only does this praise, which was not denied by Horton, indicate that Downey's error may have been a mere pretext for his discharge, but also the- General Counsel argues that Respondent's treatment of 'Downey was much harsher from the way it treated its other em- ployees who, in the summer of 1985, were involved in two 'errors that involved the reworking of significant orders. One involved a bleaching, processing; dyeing, and finishing job for Argo of about one to three tractor- trailer loads of cloth, all of which was returned for being dirty and 'greasy. Employee Nelson Sims said that Horton met with all the finishing department employees on his shift, whom he told that Argo was not pleased and he was not pleased and-that the stains should have been found out about before the goods left Respondent's facility. He complained particularly to the rollers and roller helpers; but, despite the fact that the employees got their "butts chewed -out," Horton took no' discipli- nary action. The second involved a job of dyeing, processing, fleecing, and cutting to order 'of sweatsuit material for Continental, who returned the goods because of pressure marks put on by the rollers. Sims and two others were summoned to Horton's office, where he told them that he was not happy and "all our jobs" (which, to -Sims, meant him and his partner Underwood) were "'on the line" for this mistake; but again no discipline was given. The Continental job involved 8000-10,000 pounds of material; the Argo job, about 7000-8001) pounds. Al- though Horton testified that only 10 percent of the Argo job had to be reprocessed-and Horton testified' that it was "very rare" to have a mistake of that magnitude- 9 I was particularly unimpressed with Horton's demeanor, finding hum at times unresponsive and his testimony inconsistent. 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Daubert said that 240-300 rolls of fabric, about three- quarters of the order, had to be processed to remove the stains. Daubert knew firsthand what was actually done, and I credit him. Compared to those jobs was the one Downey erred on, which was less than 1000 pounds. In addition, Downey's job did not involve any rework. Horton consulted with his customer, who permitted Re- spondent to dye its other lot red, although it was origi- nally intended to be navy blue. Thus, the General Coun- sel contends that Downey should not have ' been disci- plined at all. Horton agreed that he did not discipline any of the fm- ishers; but he explained that the stains on the Argo job could not be detected while the fabric was being run through the machines, which run at 60 yards per minute, with steam coming out of-the fabric. However, he' admit- ted that there were stains or dirt on the outside of the rolls, that somebody should have noticed them, and that the finishing supervisors and operators were responsible. Yet, he testified that because he could not pinpoint who was to blame, he imposed no discipline, despite the fact he lectured the three shifts of the entire department and "raised the roof" about the quality of the job. He also stated that all the employees were "verbally warned," but he later amended that to "counseled"; and no formal writings memorializing oral warnings were put in any employee's file. Horton also testified that the Continental job was the fault of no one. The customer had asked to inspect the work at `Respondent's Independence facility. There, under brighter lights than at the Port Carbon facility, the customer turned the fabric over and discovered a slight impression on the back. Respondent agreed to refleece the fabric, and Horton explained that the employees would not have been able to see the impression because it was on the back of the fabric, they had not been told to turn the fabric over, and it would not have been seen in the more dimly lit room at Port Carbon. Horton testi- fied that he talked with the employees to make them aware ' of how the problem arose and to look for the problem, but he did not consider the incident one that should have led to discipline. That Horton summoned Sims and two other employ- ees-to his office, a fact not denied (but not remembered) by Horton, might have seemed threatening to Sims. And it may well be, that Horton said something about "all our jobs being on the line," but it appears that Horton in his own way was simply calling to the employees' attention the fact that Respondent relied on good work to contin- ue business with its customers and that they should be aware and-look for this particular problem with the roll- ers. Indeed, Sims testified that he did not consider what Horton said as a, warning or a threat, that he might be fired. I do not find that the Continental errors, if errors of the employees they be, rather, than errors caused by Respondent's machines, represented the type of incident from which disparity may be claimed. Rather, Horton found that the solution for the type of fabric being rolled was to use a different machine, which ' had rollers that did not make the larger impression that Continental had complained about. Thus, counseling, rather than disci- pline, was called for and was given. The errors committed on the Argo job present a more serious claim. Those who shipped the fabric with dirt and grease stains on the,outside of the rolls were as cul- pable as Downey. There were employees who could have been identified and were,identified and. should have been disciplined. Horton admitted that the fault lay with the finishing supervisors and finishing operators, yet they were not disciplined. It is true that Downey was on notice that he was sub- ject to a year's probation and that any further problem would subject him to discharge. Nonetheless, Downey did not match up all the rolls of fabric with the order. His failure to perform cannot be excused -solely because he was also a union activist. But I am not persuaded that Respondent would have disciplined him in the absence of his union activities.10 I cannot dismiss lightly Horton's final statements to him that it was because he did not obey Respondent's "philosophies and policies" that he was discharged. Those "philosophies and policies," I find, were different from the "written rules" and "in- structions" that Downey was accused of violating. None of the rollers or finishers on the Argo job was accused of violating Respondent's "philosophies and policies," which equate with Respondent's anti-Teamsters attitude and Downey's pro-Teamsters sentiments. Furthermore, Horton's praise of Downey as a good worker is incon- sistent with the defense that Downey was fired as a result of his bad work.' 1 I find disparity here and find that Downey's error, which subsequently proved to be innocuous and harmless, was utilized as, a pretext for his discharge. If Downey had not been an active Teamsters supporter, he would have been treated as lightly as were the employees who worked on the Argo fabric and caused Respondent to reprocess that job. 1 2 I can find no reason for his discharge other than his union activity. I conclude that Respondent violated Section 8(a)(3) of the Act. The unfair labor practice found above, occurring in connection with Respondent's business, has a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce ' and 10 The General Counsel also contends that the trucker or warehouse- man who placed the rolls of fabric on the rack should have been d'isoi- plined but Horton conceded that he was not. On the one hand, Downey was the one to check that the trucker or warehouseman did not make a mistake and he did not do what he was paid to do. On the other hand, the trucker or warehouseman made a mistake, and Horton did not inves- tigate that mistake and obviously made no recommendation of disciph- nary action. 11 Bill Fox Chevrolet, 270 NLRB 568, 575 (1984). 12 Respondent contends that it evidenced no union animus because in the past it promoted certain employees who were known Teamsters ad- herents. Respondent conveniently forgets that the Board has recently twice found Respondent in violation of the Act in 275 NLRB'1236 and 277 NLRB 988. See also Jacobo Marti & Sons Inc., 264 NLRB 30 fn. 1 (1982), which relies on earlier findings to demonstrate union animus. Respondent also contends that, if its reason for taking action against Downey was based on his union activities, it could have terminated him earlier. I find that merely because it waited does not negate its animus. Indeed, Horton thought of dismissing Downey earlier; but found that he could not utilize the first final warning for absenteeism because Respond- ent's attorney advised that that warning was limited to absenteeism and was thus "ambiguous." POTTSVILLE BLEACHING CO. the free flow thereof within the meaning of Section -2(6) and (7) of the Act. THE REMEDY Having concluded that Respondent unlawfully en- gaged in an unfair labor practice, I shall recommend that it cease and desist therefrom and take certain affirmative action. Specifically, I shall order Respondent to offer Ronald Downey full and immediate reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position of employment, without prejudice to his seniority or other rights and privileges, and make him whole for or any loss of wages or other rights and benefits he may have suffered as the result of the discriminaton against him in accordance with the for- mula prescribed in F W. Foolworth 'Co., 90 NLRB 289 (1950), with interest as provided for in Florida Steel Corp., 231 NLRB 651 (1977).13 I shall also order Re- spondent to remove from its records any reference to Downey's unlawful discharge and notify him in writing that this has been done and that evidence of his unlawful discharge will not 'be used against him in any way. The General Counsel has requested that my recommended Order include a visitatorial clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure so that it will be able 'to monitor compliance with the Board's order, if enforced by a court of appeals. I am unpersuaded that existing procedures are, inadequate to ensure compliance, especially where the order pro- vides only for the reinstatement and payment of backpay for one employee. On the foregoing findings of fact and conclusions of law and the entire record in this proceeding , 114 including my observation of the demeanor of the witnesses as they testified, and my consideration of the briefs filed by the General Counsel and Respondent, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended) s ORDER The Respondent, Pottsville Bleaching and Dyeing Company, Port Carbon, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against its employees because they engaged in activities on behalf of Teamsters Union Local No. 115, affiliated with the International Brotherhood of 'Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization. (b) ' In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the 11 See, generally, Isis Plumbing Co., 138 NLRB 716 (1962). 14 Respondent moved to amend the official transcript in certain re- spects. There being no opposition, the motion is granted and the tran- script is amended accordingly. is If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses. 367 rights guaranteed, them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate reinstatement to Ronald Downey to his former position or, if that position no longer exists, to a substantially equivalent position of employment, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay or any other benefits he may have suffered as a result of the discrimination against him in accordance with the provi- sions set forth above in the remedy section. (b) Remove from its files any reference to the unlawful discharge of Ronald Downey and notify him in writing that this has been done and that evidence of his unlawful discharge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other docu- ments necessary to analyze and compute the amounts due hereunder. (d) Post at its Port Carbon, Pennsylvania facility copies of the attached notice marked "Appendix."16 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately on 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply. 16 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against our employees because they engaged in activities on behalf of Teamsters Union Local No. 115, affiliated with the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by, Section 7 of the National Labor Relations Act. 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL offer immediate reinstatement to Ronald Downey to his former position or, if that position no longer exists, to a substantially equivalent position of em- ployment, without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay or any other benefits he may have suffered as a result of the discrimination against him, with interest. WE WILL remove from our files any reference to the unlawful discharge of Ronald Downey and notify him in writing that this has been done and that evidence of his unlawful discharge will not be used against him in any way. POTTSVILLE BLEACHING AND DYEING COMPANY