Dresser Industries, Inc.

90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dresser Industries, Inc. and Abel Ferreira. Cases 39-CA- 1392, 39-CA- 1416, and 39-CA- 1509 June 15, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On November 2, 1984, Administrative Law Judge Joel P. Biblowitz issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The General Counsel filed cross-ex- ceptions and a brief in support and in opposition to the Respondent's exceptions. Thereafter, the Re- spondent filed an answering brief to the General Counsel's exceptions. 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,2 as modified, and to adopt the recom- mended Order as modified and set out in full below. The judge found that the Respondent violated Section 8(a)(3) and (1) in late 19823 when it disci- plined employees Lucas, McDonald, and McClain for "poor workmanship." We disagree. The Respondent disciplined these employees on the ground that they collectively produced a part out of stainless steel rather than the required carbon steel. Although it is disputed whether all three employees were responsible for the defective parts, it is clear that they produced the type of ' We find without merit the Respondent's allegation of bias and preju- dice on the part of the judge On our full consideration of the record and the judge's decision , we perceive no evidence that the judge made preju- dicial rulings or demonstrated bias against the Respondent in his analysis or discussion of the evidence We also find no merit in the Respondent's exceptions to some of the judge's credibility findings The Board 's estab- lished 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 Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We agree with the judge's finding that the Respondent violated Sec 8(a)(3) and (1) by laying off employee McClain in November 1982, while retaining employee Neely who had less seniority Like the judge, we find that the Respondent failed to show that, absent McClain's union activi- ties, it would have laid him off out of seniority In this regard , the Re- spondent's assertion that Neely was retained because he was more quali- fied does not withstand scrutiny The Respondent has failed satisfactorily to explain why McClain, on twice facing layoff in department 145, once in November 1982 and again in September or October 1983, could not bump Neely on the first occasion but could bump Neely on the second one, when he was offered the opportunity to do so but declined No evi- dence was presented that the skills or classifications of these two employ- ees in relationship to each other changed between the first and second layoffs Thus, we conclude that the only factual accounting for McClain's layoff out of seniority in November 1982 was that he was running as union trustee on an insurgents' slate to which the Respondent was hostile 3 All dates are 1982 unless otherwise indicated tube in question. Lucas performed the initial oper- ation by selecting and measuring the tube's thick- ness, McDonald performed the second and third operations by cutting and burring the ends, and McClain performed the final two operations by swagging and annealing the tubes.4 According to the Respondent, the defective parts were produced in early August and remained in stock until late October, when the parts became components of an assembly. During the first week of November, the Respondent rejected several of these assemblies because the defective parts cracked when the assemblies were pressure tested. On investigation, the Respondent discovered that the parts were made out of stainless steel rather than the required carbon steel; the Respondent states that upon checking inventory it discovered that Lucas, McDonald, and McClain had produced the parts in August. On November 24, Lucas, McDonald, and McClain were given written warnings for "poor workmanship." The McDonald and McClain warn- ings contained references to previous written warn- ings5 and each was given a 2-day suspension. Dis- cipline for Lucas was limited to a "verbal" warn- ing dated December 3. The Respondent also gave a "verbal" warning to Josephine Coble, an inspector, who is not alleged as a discriminatee. The judge found that the General Counsel had sustained her initial burden based on the employ- ees' union activities and the timing of the disci- pline. The judge reasoned that since the parts were produced in early August and the defect was not discovered until a few days after the November union nominations, the Respondent had seized on the opportunity as a means to justify the warnings regardless of who was at fault. We disagree with the judge that the General Counsel has established that the discipline was mo- tivated by the employees' union activities. In order to establish such a violation, the General Counsel must make a prima facie showing that the employ- er made a decision to discipline the employees and that the employees' protected conduct was a moti- vating factor in the employer's decision. Wright Line, 251 NLRB 1083, 1089 (1980). In the instant case no such showing was made. There is no indication that the Respondent was aware of either Lucas' or McDonald's union activi- ty. Lucas' union activity was limited to his Novem- ' Stainless steel and carbon steel are easily distinguishable , stainless steel has a bright silver look and carbon steel has a dark dull look How- ever, if, as in the present case, stainless steel is put through the annealing process, it comes out indistinguishable in appearance from carbon steel 5 These earlier warnings were issued in March 1982 and are outlined in fns II and 15 of the judge's decision 289 NLRB No. 12 DRESSER INDUSTRIES 91 ber 2, nomination of Grodis for the vice president position at a union meeting . McDonald's union ac- tivity was limited to his response to employee Ger- mano, an incumbent union trustee and steward, who asked him on November 3, how he intended to vote. McDonald replied that he wanted to hear the issues before he decided. Germano shouted, "In other words you are going to vote for them. 116 Under these circumstances, we find the General Counsel has failed to show that the Respondent had knowledge of Lucas' or McDonald's union ac- tivity. Thus, so far as the evidence shows, the Re- spondent knew of the union activities of only one of the three men, i.e., the Respondent knew about McClain's agreement, in late October, to run for a trustee position on the slate opposing the incum- bents, because on the day following McClain's de- cision to run he informed Foreman Thompson by asking Thompson what he thought about McClain's candidacy. Although we agree with the judge that the Re- spondent acted to favor the incumbent union offi= cers, we find this favoritism and the Respondent's knowledge that one of the three employees disci- plined was involved in the campaign against the in- cumbents provide, under the circumstances, an in- adequate base on which to make a finding that the discipline. imposed was motivated by the, employ- ees' union activity. McClain had received a prior warning in March 1982 for poor workmanship, which stated that a repetition could be grounds for discharge. McDonald similarly had received a pre- vious written warning for poor workmanship in March 1982 for using the wrong material, and he had been given a 3-day suspension. The discipline imposed in November on these two employees- written warnings and a 2-day suspension-is not out of proportion to that imposed the prior March before the union activity. Lucas' written warning without suspension is similarly 'in accord with his record. He had not incurred prior related discipline and the discipline imposed on him was like that given to Coble, who is not alleged to have been unlawfully discriminated against. Under these cir- cumstances , we find that the types of discipline im- posed do not suggest discriminatory motivation. Similarly, we do not find that the Respondent's delay in discovering the defect supports the Gener- al Counsel's case. It does not appear unusual, con- sidering the nature of the Respondent's business, that the parts could remain in stock from June until 8 The judge noted that McDonald's union activities were extremely limited and would clearly not be adequate to sustain a violation. The judge concluded , however, that if the Respondent wanted to penalize Lucas and McClain for their activities McDonald would have to be in- cluded because he was between Lucas and McClain in the production of the part. October. The Respondent manufactures and sells pressure gauges and temperature instruments. The Respondent manufactures 'the individual compo- nent parts and assembles the parts based on orders from customers. Further, after McClain performed the annealing process, the parts incorrectly made from stainless steel became indistinguishable in ap- pearance from those correctly made of carbon steel and thus there was no visible indication that a defect existed in the parts while they were stored in the stockroom. Further, the record does not contradict the Respondent's explanation for the timing of the discipline-that the defect in the parts had become apparent when they were placed in an assembly in late October and that some time was required thereafter to retrieve production informa- tion and to complete an investigation showing which employees had fabricated the defective parts. Under these circumstances, we conclude that the General Counsel has failed to show that the timing of the discipline evidenced that the Re- spondent's decision was discriminatorily motivated. In sum, we find that the General Counsel has not satisfied her initial burden under Wright Line, i.e., she has failed to establish a prima facie case that the discipline was motivated by union activity. AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to offer Grodis and McClain7 immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights or privileges, previously enjoyed.8 ' The record is unclear whether McClain was recalled to department 145 on a full-time basis subsequent to his November 1982 layoff. The record indicates that commencing March 1983 McClain was recalled to department 145 on a sporadic basis, and that in August or September he was recalled on some undefined basis to department 145 before again being laid off in September or October for lack' of work. We shall leave resolution of this issue to the compliance stage of this proceeding . If it is determined there that McClain was recalled to department 145 on a full- time basis in 1983, we shall not order reinstatement as provided in this remedy, and the make-whole remedy regarding him will terminate with the date of such recall. 8 Contrary to the judge, we do not order the Respondent to offer rein- statement to employee Bromley. We note that subsequent to Bromley's discharge on November 4 the Respondent offered Bromley reinstatement to his former position and that Bromley declined the offer. Further, al- though Bromley later accepted employment with the Respondent in a different position, we have found, in agreement with the judge, that Bromley was not constructively discharged from that latter position. In these circumstances, we find that Bromley is not entitled to reinstate- ment. 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We shall also order the Respondent to remove from its files any reference to the October 1 dis- charges of Ferreira and Grodis, the November 4 discharge of Bromley, and the November 11 layoff of McClain, and notify them in writing that this has been done and that their discharges or layoffs will not be used against them in any way. We shall also order the Respondent to make Ferreira, Grodis, Bromley, and McClain whole for any loss of earnings and benefits in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner as prescribed in New Horizons for the Retarded.9 ORDER The National Labor Relations Board orders that the Respondent, Dresser Industries, Inc., Stratford, Connecticut, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging, suspending, or otherwise dis- criminating against its employees because of their support for, or participation in, a slate of candi- dates opposing the incumbent officers or agents of Food, Beverage and Express Drivers, Teamsters Local No. 145, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) in an intraun- ion election. (b) Reprimanding employees, through warnings or other means, because of their support for, or participation in, a slate of candidates opposing the incumbent officers or agents of the Union in an in- traunion election. (c) Disparately applying its November 12, 1982 memorandum by allowing campaigning by the nominees on the slate with William Kuba, while, at the same time, forbidding campaigning by nomi- nees on the slate with Abel Ferreira. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act. (a) Offer Francis Grodis immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole 9 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 US C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 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. (b) Offer Glean McClain immediate and full rein- statement to his former job, if it has not already done so, or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed, and make him whole for any loss of earnings and other benefits resulting from his layoff, plus interest. (c) Make Abel Ferreira and Antonio Bromley whole for any loss of earnings and other benefits resulting from their discharges, plus interest. (d) Remove from its files any reference to the October 1, 1982 discharges of Ferreira and Grodis, the November 11, 1982 layoff of McClain, and the November 4, 1982 discharge of Bromley, and notify them in writing that this has been done and that evidence of this unlawful activity will not be used as a basis for future personnel actions against them. (e) Post at its Stratford, Connecticut facility copies of the attached notice marked "Appen- dix."10 Copies of the notice, on forms provided by the Officer in Charge for Subregion 39, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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. (f) Notify the Officer in Charge in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the consolidated complaint is dismissed insofar as it alleges viola- tions not specifically found herein. 1s 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 " DRESSER INDUSTRIES 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 the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge, lay off, suspend, or otherwise discriminate against you because of your support for, or participation in, a slate of candi- dates opposing the incumbent officers or agents of Food, Beverage and Express Drivers, Teamsters Local No. 145, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO in an intraunion election. WE WILL NOT reprimand you, through warnings or other means, because of your support for, or participation in, a slate of candidates opposing the incumbent officers or agents of the Union in an in- traunion election. WE WILL NOT disparately apply our November 12, 1982 memorandum by allowing campaigning by the nominees on the slate with William Kuba, while, at the same time, forbidding campaigning by nominees on the slate with Abel Ferreira. WE' WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Francis Grodis immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL offer Glean McClain' immediate and full reinstatement to his former job, if we have not already done so, or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority or any other rights or privi- leges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from his layoff, plus interest. WE WILL make Abel Ferreira and Antonio Bromley whole for any loss of earnings and other benefits resulting from their discharges, plus inter- est. WE WILL remove from our files any reference to the October 1, 1982 discharges of Ferreira and Grodis, the November 4 discharge of Bromley and the November 11, 1982 layoff of McClain and we 93 will notify them in writing that this has been done and that the discharges and layoff will not be used against them in any way. DRESSER INDUSTRIES, INC. Thomas W. Meiklejohn, Esq., for the General Counsel. William C Bruce, Esq. (Lynch, Traub, Keefe & Snow, PC), for the Respondent. James L. Kestell, Esq. (Kestell, Pogue & Deinhart), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was tried before me in Fairfield, Connecticut, on December 5 through 9, 1983, and February 6, 1984. The order consolidating cases and complaint and. notice of hearing issued on August 12, 1983, based on the above- mentioned charges (and a first and second amended charge in Case 39-CA-1509) filed on October 25 and November 10, 1982,1 and January 24 and March 3, 1983. The consolidated complaint basically alleges that Dresser Industries, Inc (Respondent) engaged in discriminatory conduct against Abel Ferreira, Francis Grodis, Glean McClain, Antonio Bromley, Edward McDonald Jr., and Edward Lucas Jr. because they ran for offices and posi- tions in Food, Beverage and Express Drivers, Teamsters Local No. 145, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (the Union), against the incumbents of the Union and engaged in other concerted activities. The consolidated complaint also alleges that Respondent promulgated a rule regarding campaigning in order to discourage em- ployees from campaigning for union office and, further, enforced the rule unfairly to allow campaigning by the incumbent group, while preventing the above-mentioned- insurgent candidates from campaigning. All this is al- leged to be in violation of Section 8(a)(1) and (3) of the Act. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation with an office and place of business in Stratford, Connecticut, is en- gaged in the manufacture and nonretail sale of pressure gauges and temperature instruments. During the calendar year ending December 31, Respondent, in the course and conduct of its business operation, purchased and received at its Stratford facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Connecticut. Respondent admits, and I find, i Unless indicated otherwise, all dates mentioned refer to the year 1982. 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS Respondent admits, and I find, that the Union is a labor organization with the meaning of Section 2(5) of the Act. III. THE FACTS A. Formation of the Insurgent State The Union has been the collective-bargaining repre- sentative of Respondent's production and maintenance employees for approximately 20 years; at the time of the hearing this unit comprised in excess of 500 employees. For much of this period, William Kuba, the Union's sec- retary-treasurer, and Ernie Porco, an employee of Re- spondent and an assistant business agent of the Union, had been union officers. The General Counsel alleges that the difficulties involved here commenced because in 1982 Ferreira organized a slate of individuals to run against Kuba and Porco's slate in the upcoming union election. The necessary implication of this argument is that Respondent preferred to deal with the Kuba-Porco slate, rather than Ferreira and his slate. Sometime prior to April, employee Paul Keegan en- couraged Ferreira to run on a slate against the incumbent union officers because of what he claimed was the poor representation they were receiving from the Union; Fer- reira rejected these appeals. About April, Ferreira in- formed Keegan that he changed his mind and would run for secretary-treasurer and organize the remaining slate to run against the Kuba team. Shortly thereafter, Fer- reira asked Grodis if he would be willing to run for president of the Union on Ferreira's slate, and he said that he would. Sometime thereafter, Ferreira told Grodis that he felt it would be better to have candidates who were employed at other companies as well as Respond- ent, and he asked Grodis if he would run for vice presi- dent instead, and he again agreed.2 Ferreira asked Keegan to run on his slate as trustee and fellow employ- ee Loretta Bennadette as recording secretary, and they agreed. In May or June he asked Bromley to join his slate as a trustee, and he said that he would think about it. About October, Ferreira repeated the request and on this occasion, Bromley agreed. About the end of October (after returning to Respondent's employ subsequent to being discharged) Ferreira asked McClain to be on his slate as a trustee; on the following day, McClain agreed. At the union meeting on November 2, Ferreira's slate was nominated, as was the Kuba-Porco slate; Lucas nominated Grodis at this meeting . Ferreira testified that prior to November 2, other than his conversations with the candidates on his slate, he did not inform anybody else of the candidates on his slate, except for his own candidacy. 2 At Ferreira's request, Steven Jablonski and Tony Amaro (both em- ployed by Drake's Bakery, whose employees are represented by the Union) agreed to run on Ferreira's slate for president and business agent, respectively About September, while Ferreira was working on his machine, fellow employee Daniel Zajac approached him with the union contract in his hand and asked Ferreira's advice about a grievance he had filed; Ferreira told him that he did not want to get involved. At that moment, Irving Nash, Ferreira's foreman and an admitted supervi- sor, came out of his office and said that he did not want Ferreira discussing union business, and that he was not going to fight two unions. At that point, Zajac walked away. About August or September, Grodis spoke to John Caldwell, Respondent's manufacturing manager: "I wanted to see how he felt about running for Union o f f i c e , how he felt ... about me running. I didn't men- tion any names or I didn't say we." Caldwell said he had no objection and felt that it was good to run for election, "but he just didn't want any trouble in the plant because . .. he said that there could be bloodshed." Grodis as- sured him that there would be no trouble. On September 29, Grodis went to the office of Neil Priestly, Respond- ent's general superintendent, to discuss a suggestion he had conceived of; after discussing this suggestion, Grodis informed Priestly of his intention to run for union office. Priestly said that there was nothing he could do, and Grodis asked if he would do him a favor and keep Re- spondent's Personnel Manager Robert Martin "off our backs" since Martin was friendly with Porco. Priestly said that there was nothing he could do and that he did not want to get involved; he wished him luck. On an- other occasion (he could not place the time) Grodis in- formed his foreman, William Sherwood, that he was run- ning for union office. McClain testified that later in the day after he in- formed Ferreira that he would consider being a candi- date on his slate, he asked his foreman (and friend) Howard Thompson what he thought of his running on Ferreira's slate as a trustee. Thompson told him that it would be good if he won, but if he lost, the pressure would be put on him. He told McClain that he was making good money and he should think about it, but "if I was you I wouldn't do it. He said that he had run against the Kuba slate 20 years earlier and lost, and it might look like he was pushing McClain to run because he and Kuba do not like each other. Bromley testified that in August he asked Thompson (his supervisor whom he had known for many years) what he thought about he and Ferreira running for union office against the Kuba slate. Thompson told him that he had run for union office many years earlier and he en- countered a lot of trouble because of the Union's influ- ence with Respondent, and they would also have a diffi- cult time for that reason. Thompson agrees that Bromley told him of his candidacy substantially before late Octo- ber. Martin testified that he did not learn that Ferreira was running for union office until mid- or late-Novem- ber; he did not learn of Grodis' involvement until "a long time" after his discharge on October 1, also about late November. Ridolfi testified that he does not remem- ber ever being informed that Bromley was running on the Ferreira slate. He testified that the first he learned of Ferreira's involvement was in November when Nash DRESSER INDUSTRIES 95 complained to him of all the activity in his department as a result of Ferreira's candidacy. Shortly thereafter, he knew for sure when he received the unfair labor practice charge filed by Ferreira with the Board on November 10.3 He testified that he did not receive this knowledge from the October 25 charge. B. Discharge of Ferreira and Grodis Ferreira had been employed by Respondent for 7 years; during that period, the only reprimand he received was a verbal warning for poor attendance some years prior. Grodis had been employed by Respondent for 6 years and had never received any warnings or discipline; in mid-September he received a promotion to leadman. For many years prior to their discharge, nobody had ever been disciplined for engaging in gambling or pro- moting gambling at the plant. Stated briefly, the General Counsel alleges that Ferreira and Grodis were dis- charged because they were candidates on the slate run- ning against Kuba's incumbent slate. Respondent counters that their union activity was not cause of their discharges; rather they were discharged for violating a rule against gambling, more particularly selling New York State Lottery (lottery) tickets to fellow employ- ees.4 The General Counsel, in turn, states that Ferreira and Grodis had been purchasing lottery tickets as a favor for their fellow employees for 4 months and that this was a, pretext that Respondent seized on in order to dis- charge them. Additionally, the General Counsel alleges that Respondent permitted numerous forms of gambling and commercial activity, more serious than that under- taken by Ferreira and Grodis, without penalty, thereby establishing that it was their anti incumbent union candi- dacy that caused their discharges. Commencing about June, Ferreira and Grodis drove to New York once a week in order to purchase lottery tickets; they sometimes went together and, at other times, separately. Within a short period of time, their fellow employees became aware of it and asked Ferreira and Grodis to purchase tickets for them. On these occa- sions the employees paid them, in advance, the amount required to purchase the tickets and, on occasion, gave them an additional dollar to cover gas and tolls.5 On the 3 The initial unfair labor practice charge filed October 25 and received by Respondent on October 27, alleges that Respondent violated Sec. 8(a)(1) and (3) of the Act by terminating Ferreira and Grodis on October 1, on the demand of the Union "in derogation of the rights guaranteed in Section 7 of the Act and in order to encourage membership in said labor organization." Ferreira filed another charge against Respondent on No- vember 10 alleging : "Since on or about November 3, 1982, and continu- ing to date, the above Employer has restricted my right to engage in union activities on behalf of Teamsters, Local 145, while permitting other employees' their Section 7, rights." 4 Counsel for Respondent alleges that these acts by Ferreira and Grodis also constituted a violation of 19 U.S.C. § 1301. As I find this irrelevant to the instant proceeding , I make no determination in that regard. 5 The distance is about 50 miles and approximately $ 1.50 in tolls in each direction . Regarding the total amount he received weekly from his fellow employees for gas and tolls, Grodis testified: " If I got seven dol- lars, I was doing good." Ferreira testified that the amount they received for gas and tolls ranged from $10 to $18. average they purchased tickets for 15 employees a week; they testified that Nash often gave them money to pur- chase tickets for Richard Rodenhizer, Respondent's gen- eral foreman. At the end of each week, Ferreira wrote the winning lottery number in large print on the inspec- tion table in his department, together with the word "Lotto" so that the people would not continually ques- tion him about the winning number. Zajac testified that when he first observed Ferreira with lottery tickets he asked him if "he would do me the favor and pick some up for me." Ferreira did so and each week Zajac paid him $4 for the lottery tickets; every other week, Zajac gave him a dollar for gas; he did this voluntarily, not be- cause Ferreira asked him, but because Ferreira was doing him a favor. Employee Freddie Washington testified that he also asked Ferreira to purchase lottery tickets for him; on each of these occasions he gave Ferreira $4 for the tickets and an additional dollar to cover gas. Rodenhizer testified that he never purchased lottery tickets in the plant; he did purchase them while visiting relatives in New York State, and brought them back into Connecti- cut. He never personally observed Ferreira or Grodis selling lottery tickets in the plant, although he had "heard that they had Lotto tickets." Early on the morning of October 1, Grodis was in the digigauge room of the plant looking at a newspaper to see if any of the winning numbers corresponded to his lottery tickets; prior to that, an employee (identified only as "Mac") had given him money to purchase lottery tick- ets for him. Martin walked into the room and asked Grodis what he was doing; Grodis told him that he was checking his lottery tickets against the winning numbers, closed the paper, walked out, and returned to work. Shortly thereafter, about 8 a.m., Martin stopped Grodis in the hallway and told him that William Ridolfi, Re- spondent's manager of industrial relations, wished to speak to him in his office; on the way, Martin asked Porco to accompany them to Ridolfi's office. Grodis tes- tified that when they arrived at Ridolfi's office, Ridolfi told Grodis that he was being terminated for selling lot- tery tickets, which was a serious offense. Grodis said that he never sold lottery tickets, although he did play them. Ridolfi said that by law what he did was illegal and he was considering contacting the Federal authori- ties and having him arrested for his activities. Grodis was then asked to go to Martin's office where he stayed for a few hours; during this period Porco told him that Respondent was interviewing witnesses. About 11 a.m., Martin and William Sherwood, Grodis' supervisor, came into Martin's office; Porco was still present. At that time, Martin told him that he was being terminated for selling lottery tickets in violation of Respondent's policy. He was given his personal property and left. Ferreira testified that on October 1, Nash told him that he was to report to Martin's office. He and his stew- ard went to Martin's office, stopping along the way to get Porco. When they arrived at his office, Martin read from a paper and said that Respondent had conducted a lengthy investigation into lottery gambling at the plant and had determined that it was against Respondent's policy and Federal law. He asked Ferreira if he had any- 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD thing to say and Ferreira said that he did not. Martin asked if he admitted selling lottery tickets and Ferreira said that he was not admitting to anything, and asked who said that he was selling the lottery tickets; Martin said that he was. Ferreira asked what he was going to do, and Martin said that he was going to terminate Fer- reira; Porco told Martin that he did not have any proof. Ferreira then asked Martin for proof and Martin said that he did not have to show him anything, and he was escorted out of the plant. In 1981, Respondent posted the following notice enti- tled "Plant Rules and Regulations: The following prac- tices are strictly forbidden. Employees violating these rules will be subject to disciplinary action including dis- missal." Rule 13 states : "Gambling or promoting gam- bling," rule 19 states: "Violations of any criminal law." The notice states that it was revised April 1981. In addi- tion, on August 20, 1982, Respondent posted the follow- ing notice6 entitled "Special Notice" and signed by Martin: Dresser Industries Instrument Division has the responsibility and obligation to provide a safe, pleasant, and lawful working environment for em- ployees. Specifically, as stated in our rules and reg- ulations, the Company prohibits: 1. Violation of Company policy or any criminal law. 2. Gambling or promoting gambling on Company property. It is Dresser's policy to assist the authorities in prosecuting violations of criminal law by employees or former employees. Offenses of this nature may be grounds for termination. The position of Dresser, is, and will continue to be, quite firm. 3. Gambling, either by arranging for games of chance of whatever kind or by contributing to such activities, on Company property will not be tolerat- ed. Dresser will actively continue investigations and will employ all measures necessary to assure that everyone is provided with a quality work environ- ment. Martin testified that this notice was posted as a result of rumors he had heard that gambling was occurring on the premises. Ridolfi testified that about January or Feb- ruary he was informed that there was gambling taking place in the plant: "I went out to the plant and looked around and I didn't see anything." He did not ask anyone to investigate this allegation. Later at a retire- ment party in May he was informed of gambling activi- ties taking place at the plant; no names were mentioned, but pools were mentioned; he does not believe that the lottery was mentioned. He decided to post the notice re- ferred to above. Martin testified that weeks prior to October 1, Ridolfi informed him that gambling was taking place in the plant; whether an investigation began prior to October 1, 6 References to theft in this notice are omitted he testified: "Whatever information I could glean, yes,"7 although it did not focus on anyone in particular, Grodis was one of the employees he suspected. He testified that on the morning of October 1, Ridolfi told him that he heard that there was gambling taking place in the digi- gauge room and that Grodis was involved in it; he told Martin to see if anything was taking place there. He told Martin that he had received a tip from someone that this was taking place, but he did not identify from whom he received the tip. When he arrived at the room he ob- served Grodis conversing with another employee, James McGuire; Grodis' hand containing lottery tickets was ex- tended toward McGuire. Martin asked Grodis what he was doing and Martin said: "Nothing. I'm checking my numbers," put the tickets back into his wallet and left the room. Martin then returned to Ridolfi's office and in- formed him of what he had witnessed. Ridolfi told him to bring Grodis to his office; Martin got Grodis and Porco and brought them to Ridolfi's office. Ridolfi asked Grodis if he was engaged in gambling and selling lottery tickets; Martin initially testified: "Grodis denied every- thing." He later testified that Grodis denied that he was engaged in gambling and does not remember whether he answered the allegation regarding selling lottery tickets. Ridolfi then said that there was evidence that Grodis was involved in gambling; Grodis repeated his denial and Grodis, Porco, and Martin then left and went into Mar- tin's office. Up to that time (according to Martin's testi- mony) Ridolfi had not told Grodis he was terminated. For the next 2-1/2 hours, Martin, Grodis, and Porco waited while Ridolfi further investigated the situation. At 11 a.m. they returned to Ridolfi's office together with Sherwood; Ridolfi asked him if he was engaged in gam- bling or playing the lottery. Initially Grodis denied both; Ridolfi said that they had evidence to establish other- wise, and Grodis admitted that he had purchased lottery tickets for himself and for other employees. Ridolfi asked if he made a profit on these purchases and Grodis said that some of the employees gave him extra money to cover gas and tolls. Ridolfi said that based on the evi- dence that he had, Grodis was engaged in promoting gambling and gambling activity, and for that reason he was being terminated, and Grodis left. Martin testified that subsequent to that, Ridolfi told him that he had evidence that Ferreira, as well as Grodis, was involved in gambling activity and that he should meet with Ferreira and his steward. At this meet- ing, Martin told Ferreira that they had evidence that he was engaged in a violation of rules regarding gambling or promoting gambling, and asked if it were true. Fer- reira said that he would not respond. Martin said, "Well, the evidence is pretty clear and as a result of our investi- gation in this matter you're being terminated." Ridolfi testified that when he arrived at his office on September 30, a typed unsigned note was on his desk stating that Ferreira and Grodis were engaged in selling lottery tickets on a weekly basis; the note also listed about 30 to 35 names of employees who purchased these ° He testified that prior to October 1, this investigation consisted of "Being more diligent and observant as to the potential for gambling when I was out on the shop floor " DRESSER INDUSTRIES 97 tickets from Ferreira and Grodis. (Ridolfi said that he had previously received similar unsigned notes, and it has also happened since these occurrences.) Because he was busy that day, he paid "no particular attention" to it and placed it in his briefcase. At the end of the day he read the letter and told Martin to walk around the plant and investigate the situation the next day. Early the next morning, Martin told him that he did not observe any gambling in his inspection, and Ridolfi told Martin to go to the digigauge to see if any gambling activity was taking place there; he testified that he did this because McGuire's name was the first name (after Ferreira and Grodis) on the anonymous note as one of the purchasers of lottery tickets from Ferreira and Grodis, and he worked in the digigauge room. Martin brought Grodis and Porco to his office; Ridolfi asked Grodis if he were selling lottery tickets and Grodis said that he was not. Ridolfi said that he had reason to believe that he was selling lottery tickets to fellow employees; Grodis said it was not true. He testified that at this meeting he did not tell Grodis that he was fired. Ridolfi then asked Martin to take Grodis and Porco to his office. He then called for some of the employees whose names were on the anonymous note. He first met with McGuire and asked him if he had purchased lottery tickets from Grodis. He said that he had and Ridolfi asked him how often he pur- chased the tickets and how much he paid. McGuire said that he purchased them every week and, in addition to the regular cost for the ticket, he paid something extra "for the service." Ridolfi asked McGuire if he would sign a statement to that effect and he said that he would, and he did. Ridolfi then met with Joe Minaudo and asked him the same questions; Minaudo said that he was purchasing lottery tickets, but when Ridolfi asked if he would sign a statement to that effect, he walked out, saying "No way." Ridolfi then interviewed three to eight additional employees and then told Martin to bring Grodis and Porco back into his office. At that time, Ri- dolfi told Grodis that he had proof that he was selling lottery tickets; Grodis said that he did not actually sell them; rather he purchased the tickets for other employ- ees. Ridolfi asked if he charged higher prices than the actual ticket price; Grodis said that he did not. When Ri- dolfi said that he had evidence that he received addition- al money for the tickets, Grodis said that some employ- ees give him money for gas. Ridolfi told him that based on the evidence he was in violation of Respondent's rule on gambling (which Grodis said that he was aware of) and because of that, he was being discharged. Regarding the discharge of Ferreira, Ridolfi testified that in his discussions with Minaudo and Nash, they in- formed him that they had purchased the tickets from Ferreira; on that basis, Ridolfi told Martin to call in Fer- reira, tell him that they had evidence that he was in- volved in the sale of lottery tickets "gambling" and that he should inform him that he was being discharged. Martin testified that it was Ridolfi who made the deci- sion to fire Ferreira and Grodis; since Ridolfi became manager of industrial relations (about 1981) these deci- sions have generally been made by Martin; he could only testify to one situation, where an employee threatened Ridolfi, where Ridolfi made the determination to dis- charge an employee, since assuming his new position. Ri- dolfi testified that he has made the decision to discharge four employees since becoming the manager of industrial relations. Martin testified that later on October 1, he called em- ployee Freddie Washington into his office as part of the further investigation because Ridolfi told him that his name was included on the anonymous note he received. Washington admitted that he had purchased lottery tick- ets and, according to Martin's testimony, he admitted in- directly that he purchased the tickets from Ferreira. He also interviewed two other employees who admitted that they had asked Grodis to purchase lottery tickets for them. Ridolfi had directed him to speak to these employ- ees as well, and neither they nor Washington was disci- plined for their activities; the reason, according to Mar- tin's testimony "in this case we went to the heart of the matter and disciplined those people who were at the very heart of the gambling operation." Washington testified that his meeting with Martin took place in Martin's office a day or two after Ferreira and Grodis' discharge. Martin told Washington he wanted to speak to him and asked if he wished to have his steward present; Washington said that he did not. Martin asked him if he had been purchasing lottery tickets in the shop and Washington said yes, he had been playing the lot- tery. Martin asked him if he had been purchasing the tickets from Ferreira, and Washington said that he would not say from whom he purchased the tickets. Martin said that it was against company policy to gamble or promote gambling in the plant and it was grounds for discharge; Martin then showed Washington Respondent's rule to that effect. Washington said he did not believe he was doing anything wrong because it was a legal lottery op- erated by New York State; he also told Martin: "how can you tell me that I can lose my job for that, and it's legal, where there's so much illegal stuff going on in the shop?" In this regard he mentioned illegal numbers games, football pools, and the sale of jewelry. Martin did not ask him who was involved in these activities and said "that's not the issue right now." Martin then asked him to sign a statement that he had purchased lottery tickets from Ferreira; Washington refused. He testified that this statement was prepared prior to when he entered Mar- tin's office. Ridolfi testified that the only other employee who was disciplined for his lottery involvement was Nash,s who was given a written warning admonishing him for his in- volvement, and providing that any additional violation would lead to his discharge; nobody else was disciplined because "we would probably end up discharging a good number of people." Nash only received a reprimand be- cause: "He was purchasing the tickets. He wasn't in- volved in the sale of it." 8 Ridolfi testified regarding his meetings with Nash: The first time he said that he purchased from Mr. Ferreira and Mr. Grodis. Then the . . . subsequent meeting he denied, or was very vague on Mr. Ferreira's involvement, and that he ever pur- chased from Mr. Ferreira. He never asked Nash for a written statement. 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On October 13, representatives of Respondent and rep- resentatives of the Union (Kuba and Porco) together with Ferreira met to discuss the discharges . Respondent claimed that it had enough evidence to uphold the dis- charges; the Union claimed that it did not and said that it would take the case to arbitration. On October 25 Kuba informed Ferreira that Respondent agreed to reinstate him the following day, but without backpay for the period that he was out and Ferreira returned to work the next day. Grodis was never reinstated . Ridolfi testified that he had signed statements from employees regarding Grodis' involvement in the sale of lottery tickets, and he felt that this discharge would be sustained through an ar- bitration procedure . However, he had no signed state- ment regarding Ferreira's involvement and although Nash originally implicated Ferreira , his "testimony" changed a few weeks later ; he was never asked to give a written statement . On this basis, Ridolfi did not feel its determination would stand, so Ferreira was reinstated. The Union grieved both terminations : Ferreira's Octo- ber 25 suspension and Grodis' discharge. When no satis- factory agreement was reached on these matters , arbitra- tions were scheduled for both. Ferreira and Grodis each withdrew the grievances prior to arbitration. Respondent defends that Ferreira and Grodis were dis- charged solely for gambling in violation of Respondent's rules posted in 1981 and 1982 . The General Counsel counters that the numerous gambling activities occurring in the plant establish that the Ferreira and Grodis dis- charges were pretextual , and were actually caused by their insurgency slate in the upcoming union election. Anthony lodice lodice (who did not testify) is a steward and is em- ployed by Respondent as a tow motor operator ; his son, Guy Iodice, is a foreman employed by Respondent. There was a great deal of testimony about Iodice's oper- ation of an illegal numbers operation at Respondent's plant; it follows: As part of his job, Iodice drives his vehicle through the aisles at Respondent's plant delivering and picking up goods and material . Grodis testified that during the entire period of his employment with Respondent, he ob- served lodice on a daily basis stopping his vehicle in the aisle, asking employees if they wanted to play a number, and writing the number on a piece of paper and driving off. Ferreira testified that beginning when he com- menced his employment with Respondent through Octo- ber 1983 he observed Iodice operate an illegal numbers game regularly while he was employed on days, al- though this activity "slowed down" during 1982. He ob- served lodice stopping his vehicle in an aisle, speaking to an employee, receiving money, writing the number on a piece of paper, and leaving. Ferreira purchased numbers from him in the past. Employee Judy Tumbleston testi- fied that for the 7-year period of her employment with Respondent, she has observed Iodice collecting numbers from employees three or four times a week. This in- volved stopping his tow motor, taking the numbers from the employees, collecting the money, and later using the public telephone to call the numbers in, about noontime Employee Lorrie Coverson testified that she first ob- served Iodice taking numbers from employees when she commenced her employment with Respondent about 1977; the most recent occasion was early in 1983. She observed him doing this : "Not regularly. On occasion I would have to say." On one occasion while she was talk- ing to him, an employee approached him, and gave him a number on a piece of paper and some money . In addi- tion, on occasion when she was with fellow employee Natalie Howard, she observed lodice approach her and take her number. She has also heard Iodice calling in his numbers over the bank of pay telephones about 15 feet from Respondent's personnel department . Lucas testified that he first observed Iodice playing numbers about 1974, when he commenced his employment with Respondent; from that time until about 1981 , when he drove a tow motor like Iodice, he observed lodice selling numbers three to five times a week. The usual procedure was that Iodice stopped his tow motor in the aisle and there was no room for Lucas to drive by; Lucas stopped his tow motor to find Iodice, and observed him taking numbers and money from employees on these occasions . He also observed Iodice calling in these numbers on the tele- phone in his son's office, and on the pay phones. Since 1981 he has not observed Iodice's operation with the same frequency. The last occasion that he observed Io- dice's number operation was approximately a month prior to the instant hearing. Zajac testified that he observed lodice's numbers oper- ation from the time he commenced working days (ap- proximately 1978) until 2 weeks prior to the hearing, and almost on a daily basis in between. Zajac played the numbers regularly with Iodice ; Iodice drove his tow motor into the area, parked it in the aisle and got the number and the money from Zajac. On one occasion, Nash told Lucas that he had won on a number, although he did not say that it was bet through Iodice. McClain testified that beginning when he commenced employment with Respondent , about 1976, until a few weeks prior to the instant hearing, he saw lodice taking numbers from employees, and almost on a daily basis. On one occasion, while McClain was on the pay phone in the plant, Iodice asked if he could use the phone; he gave McClain a dime and called in his numbers; he has also observed lodice counting his money in the bath- room. McDonald testified that "on many occasions" he has observed Iodice taking numbers and money from em- ployees, the last time being within a month of the hear- ing. Keegan testified that he has observed Iodice on ap- proximately 100 occasions taking numbers ; the procedure is for him to stop his tow motor and the employee gives him a piece of paper and the money . When I asked Thompson if he knew that lodice was running a numbers operation in the plant, he testified: "No. I don't know that for a fact." Martin testified that he never saw or heard that Iodice was involved in running a numbers op- eration at the plant. Ridolfi testified that after October 1, he received another anonymous note that referred to some wrongdoing by Iodice. He directed Martin to go through the plant to observe Iodice, and he did the same; neither saw Iodice doing anything improper. DRESSER INDUSTRIES 99 Other Forms of Gambling or Commercial Activity Another alleged form of gambling taking place at the plant during this period was a football pool operated on Fridays during the football season by George Germano, employee, union trustee, and steward. Grodis testified that Germano operated a pool on the weekend football games. He first observed it when he commenced work- ing days and last observed it shortly prior to his dis- charge. Germano drew up a sheet of paper that was later numbered 1 to 10 along the top, and 1 to 10 down, but not in numerical order. Employees wrote their names in one (or more) of these 100 boxes to bet on the score of the particular game. The employee whose name corre- sponded to the last digits of the score of the game was the winner. Germano posted the sheet on his workbench where employees filled in their name. Ferreira testified that he observed employees placing their names on the paper (hung on the board at his desk) and paying Ger- mano a dollar per bet, but he could not remember when he last observed it. Zajac testified that Germano con- ducted the football pool, but did not conduct it in 1982. Germano left the sheet on top of his desk and the em- ployees picked a square and wrote their name on it. Zajac won the pool on a number of occasions. McDon- ald testified that he first observed Germano operating the football pool about 5 years earlier; he last observed it in 1981 or 1982. He observed the sheet hanging at Ger- mano's desk for the employees to fill in their names. Keegan testified that Germano ran the football pool and, at times, a baseball pool. The sheet was hung on a board at his desk for the employees to choose a box and fill in their name. The last time he observed it was December 1982. Thompson testified that he never observed a foot- ball pool at the plant, but "there were rumors to that effect." Rodenhizer was asked if he were aware that a football pool was conducted at the plant from 1981 to the present time; he testified: "Only through hearsay that they existed." He never conducted an investigation to determine whether gambling was actually occurring at this time. Martin testified that he had heard that there was a pool on the results of the Super Bowl in January 1982,' although he never observed it. He did not take any action in this regard. Ferreira testified that about 1977, while he was em- ployed in department 181, during the football season, he observed Joe Minaudo, an employee and union steward, selling slips for gambling on the professional football games. He was engaged in this activity from about Tues- day through Friday. Each slip had 10 games listed on it, with the point spread, and if you won all 10, you won $300. Ferreira won it once. This ceased the summer 1982 when Minaudo was arrested for engaging in gambling activities. McDonald testified that while he was em- ployed in department 145 (until about 1982), he observed Minaudo passing out the slips for the football games the following weekend, between Tuesday and Friday of that week. He first observed this about 1978. Grodis testified that employee Heddy Pasank ran a World Series pool at the plant. This involved picking a team and an inning and the employee who picked the half inning with the most runs scored won; she posted the notice at her work station, and he observed Nash participating in the pool. He last observed this in 1981. Zajac testified likewise about the World Series pool conducted by Pasank and that there was no pool in 1982. There was also testimony regarding commercial activi- ty on Respondent's premises engaged in by Barbara Ra- ganese, a timekeeping employee. Raganese's work loca- tion is on the main aisle approximately 100 feet from Re- spondent's personnel department, with a door in be- tween. Tumbleston testified that Raganese ran "a general store" at her desk, displaying goods ranging from jewel- ry to toys, which she sold, on her desk. Some of the dis- played items were up to 2 feet tall; she first observed this in fall 1982 and last observed it Christmas 1982. Cover- son testified that Raganese sells toys and dolls that are displayed on her desk; one of the dolls was about 2 feet tall. She observed these items on Raganese's desk about twice a week from fall 1982 through August 1983. About September 1982 she purchased a toy dog from Raganese. Zajac testified that his work location is at a different end of the plant, and only passes Raganese's desk when he uses the pay telephones near the personnel department. He first noticed Raganese's commercial operation about Christmas 1982; the last time was about a month prior to the hearing. He observed dolls, jewelry, and other items on her desk; the items varied and were not visible on every occasion that he walked by her desk, but were usually there during holiday periods. Some of the items were small, and others were as large as 2 feet high. Keegan testified that "since I can remember" Raganese has old and displayed toys from her desk in the plant; the most recent occasion he observed toys displayed on Raganese's desk was a few weeks prior to the hearing. Thompson testified that he walks past Raganese's desk and "may have seen . .. watches or things of that nature . . . . Quite often she has flowers or little decora- tions or little things up there. A lot of employees in the shop have." He has not seen more than one doll on her desk at any one time. He heard that she was selling items from her desk. Within the year prior to the hearing he spoke to her about it, and "she said that she had been warned and said there was no way that she was going to get involved with anything like that again." Rodenhizer testified that he was aware that Raganese had items on her desk for sale during 1982, but he did not know what time of the day this activity was taking place. Martin tes- tified that his office is approximately 25 feet from the en- trance to the production area of the plant, and he goes into the plant five or six times a day on an average, and when he walks straight down the main aisle he walks past Raganese's desk, but he has never observed dolls, toys, or other similar items displayed on her desk. He testified, however, that about October 1982 he heard that she sold dolls and toys to other employees; he later testi- fied that "long after this 1982 period" he learned of Ra- ganese's commercial operation through an anonymous note; although it would be a violation of rule 16 of Re- spondent's plant rules and regulations posted in April 1981, referred to earlier, no disciplinary action was taken against her because "I have no evidence that she actually did that." Raganese had never spoken to him about it and never asked Martin's permission to continue selling 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD these items after Ferreira and Grodis' discharge. Ridolfi testified that he passes Raganese's desk four or five times a week and never noticed anything displayed on her desk. Raganese (who is still employed by Respondent) testified that prior to March 1983 she had sold goods in the plant without permission; at that time, Porco told her to ask Martin's permission for it. She asked Martin, and he said that she could do it, but not during her working time. About 2 months later, Martin approached her at her desk and handed her an anonymous note, saying, "I wish you could use more discretion." She looked at the note and it said that lodice was taking numbers, she was selling items, and other employees were doing things and getting away with it, while other employees were being fired. Martin told her that she should be less obvious and she told him that she had permission and how could she be less obvious. He said that she should have the people pick up the items from her car rather than bring them into the shop. C. Layoff ofMcClain McClain commenced his employment with Respond- ent about 1976; for the 3 years prior to October he had been employed in department 145 as a heat treating ma- chine operator; in addition to heat treating , the other areas of department 145 are hand welding and machine welding; Thompson is the foreman of the department. The base rate for his job was $6 .40 an hour. 9 It took him a few months before his production reached that level; later, he was able to earn between two and three times this amount through his increased production . As stated, supra, in late October McClain agreed with Ferreira that he would run for trustee on his slate and spoke to Thompson about this decision ; at the union meeting on November 2 he was nominated for that position. On the next morning, McClain observed Thompson and Ger- mano talking in Thompson's office. Germano came out and told McClain "Cut your percentage because you're next." McClain said that one other employee, Chris Neely, had less seniority than he , and should be laid off ahead of him; i 0 Germano said Thompson disagreed be- cause Neely was the setup and instruct man on the night shift. Later that day, Thompson called McClain and Ger- mano into his office; Thompson said that there was a lack of work and McClain was the next to be laid off and it would be effective the following Wednesday, No- vember 11. McClain said that Neely had less seniority than he, and Thompson answered that Neely would be retained because he was the night-shift setup man. McClain said that there was nothing to set up because he was the only nightshift employee (all the others had pre- viously been laid off). Thompson said that because he 9 The plant generally operates on a piecework, incentive basis. If the amount of items he produced hourly equaled $6 40, it was referred to as earning 100 percent If the amount of items he produced was less than 100 percent, he would still receive his base pay of $6 40 an hour, but if this continued for an extended period, Respondent would probably trans- fer him from the position Under this incentive system, many employees were able to earn twice their base pay (200 percent) or more. 10 Neely was the only employee in the heat treat area of department 145 with less seniority than he there were two other employees in the other areas of the department with less seniority , but they engaged in op- erations he was not trained for was the setup man on the night shift McClain could not bump him. McClain then went to see Martin; present at this meeting in Martin's office were McClain, Porco, Martin, and Thompson. Martin told him that he was being laid off due to a lack of work; he also gave him a choice of positions in other departments that he could "bump" if he wished to do so; he accepted a bench sol- dering position in department 127. He testified that at these meetings he was never asked if he would accept the night-shift job in department 145 (Neely's job) nor did he say that he was unavailable for that position. He also never offered to work nights. Thompson also testi- fied that at this meeting McClain was never asked if he wished to transfer to the night shift. Prior to his layoff, two other employees in the heat treat area of his depart- ment were laid off. Thompson testified that for the 6-month period prior to McClain's layoff production dropped by half; his entire department went from 32 employees to 18 or 19. Five or six of the 14 heat treat employees were laid off between late 1981 and November 1982; McClain was the last to be laid off. The only employee in the department in the heat treat area with less seniority was Neely, but he had a higher classification of set up operator and in- struct, which meant that he had received instructions and could set up and perform every operation on every ma- chine in the area, which McClain could not do. (McClain testified that he could operate every machine in the heat treat area, and because there was nobody else employed on the nightshift with Neely, the instruct clas- sification meant nothing.) Neely's ability to set up and operate all the machines was important because Re- spondent periodically received orders for a small quanti- ty of goods; rather than complete these orders on the day shift with an inordinate time being spent on the nu- merous setups, these orders were completed by Neely on the night shift; his ability to set up and operate all the machines made that possible. About 1981 McClain had been given the opportunity to learn all the operations in the heat treat area, but Thompson found that he was in- capable of doing it. Neely acquired the setup and instruct classification more than a year prior to McClain's layoff. Thompson testified that the past practice at the plant is that layoffs are by shift and job classification rather than plantwide seniority; the contract provides that layoffs are determined by seniority within the department, "provid- ing the remaining employees can satisfactorily perform the remaining available work in the department." He tes- tified that he uses the contract as a "guideline." Employee Joan Johnson testified that in March 1983 she had a conversation with Thompson, who approached her while she was in her department. He told her that he had finally gotten rid of McClain, who was a trouble- maker. He had work for him but he wanted to see McClain on the unemployment line (which he repeated a few times). Thompson testified that he did have a con- versation in March 1983 with Johnson (Johnson is his late daughter's sister-in-law, and he had gotten her the job with Respondent). He stopped to speak to her (she works in a different department) and she asked if there were any layoffs in his department because there were DRESSER INDUSTRIES layoffs throughout the plant. He said that there were and that McClain was laid off. Johnson asked if he would be returning and Thompson said that he did not believe so because work was very slow. Thompson also told her that McClain had been giving him problems i' and maybe the transfer would make him appreciate the job and the high rate of pay he was earning when he re- turned; that was the extent of the conversations. He did not refer to McClain as a troublemaker or say that he wanted him to be on unemployment. He testified: "I would be guarded in my words, or anything I may have said to" Johnson because she was Coverson' s sister-in- law, and Coverson was "very close" to McClain. Be- tween that time and about September 1983, McClain was recalled to department 145 on a sporadic basis (between 1 and 3 days a week) "when the work picked up to the point where we required additional personnel"; about September 1983 he was again laid off from department 145 for lack of work. At that time, at a meeting in Mar- tin's office with Martin, Rodenhizer, Thompson, Porco, and Germano, Martin asked McClain if he were interest- ed in bumping Neely and working nights; McClain said that he was not because he had a part-time job teaching basketball at the "Y." Thompson testified that McClain's layoff was not connected in any way with the fact that he was running for union office. Martin testified that in November McClain's job classi- fication was heat treat, setup, and operate, while Neely's classification was heat treat, setup, operate, and instruct; the difference was that Neely had been rated qualified to instruct other employees. At the time, there were no other heat treat employees on the night shift that Neely was employed on; however, the job classification "in- struct" means, in addition to instruct, that the employee is capable of performing all job classifications in the areas; Neely could, McClain could not. He testified that Respondent determines layoffs "by seniority within job classification within department." (McClain's seniority date is September 1976; Neely's is November 1979.) When he met with McClain and his steward in early No- vember in his office, and informed him that he was going to be laid off, he asked McClain which shift he pre- ferred, and he said he preferred that first shift. He then asked McClain if he were able to work the second shift and McClain said that he was not. D. Discipline of McClain, Lucas, and McDonald The genesis of this allegation was the alleged use of an incorrect metal product in the assembly of a part. The part involved is a steel tube, part no. ABX142E and the particular order involved was produced during the summer in department 145; McClain, Lucas, and McDonald were each involved in the production of this particular order. There are three kinds of steel used in Respondent's op- eration : Chrome-molly, also known as carbon steel i i Thompson testified that McClain was often arguing with the lead- man and fellow employees in the department, to the point, at times, where he was uncontrollable In 1981 , McClain was involved in a fight with another employee in the department In March 1982 McClain was given a warning by Thompson for poor workmanship It stated that a repetition would be grounds for discharge 101 (carbon steel), stainless steel, and K-Monel . Stainless steel has a silver look to it, while carbon steel is darker (K- Monel is not involved here, so its properties will not be discussed). After the annealing (baking) process, carbon steel and stainless steel are indistinguishable; the tubes in question, admittedly, were made from stainless steel rather than carbon steel. On November 24, McClain and McDonald were given written warnings for "poor workmanship"; the warnings recited that their use of stainless steel instead of carbon steel caused 161 tubes and 60 systems to be scrapped by Respondent. The warnings referred to previous written warnings McClain and McDonald had received and re- quested "that appropriate disciplinary action be taken against you up to and including discharge." (They were given brief suspensions.) Lucas' warning was dated De- cember 3 (repeating a November 23 verbal warning he had been given) and recites that the cost of the error was $984; it states that "any recurrence of this same nature will require stronger disciplinary action and could even result in termination." The General Counsel alleges that these warnings were issued in retaliation for the employees' union activity; as stated, supra, McClain ran for trustee on Ferreira's slate and Lucas nominated Grodis for his position. McDonald testified that on November 3, Germano (who did not tes- tify) asked him whom he intended to vote for. McDon- ald answered that he wanted to hear the issues before he decided, Germano shouted, "In other words, you are going to vote for them." McDonald attempted to explain that he was undecided, but Germano walked away before he could do so. Respondent's position is that these warnings were caused solely by the errors made by McClain, Lucas, and McDonald in the processing of this order. McDonald has been employed by Respondent since 1978. His stockroom is adjacent to department 145 and stores the parts for that department. One of the numer- ous items stored in that stockroom is the tube in question ABX142E. He testified that on November 4 or 5, Thompson approached him with one of Respondent's order forms in his hand, which was for the ABX 142E,12 and he asked McDonald if he had any of those tubes in his stockroom and McDonald said that he did. Thomp- son told him that they were made with the wrong mate- rial, stainless steel instead of carbon steel , so he should put a hold on the tubes. McDonald then checked the daily delivery sheets of his stockroom and found that 233 tubes produced from order 2BY82928 were received in his stockroom on August 10. About a day later, Thomp- son came into the stockroom and McDonald told him that the stockroom received 233 of the tubes in order 2BY82928, which was more recent than the order Thompson had shown him. Thompson then left and re- turned with order 2BY82928 and told McDonald to take a physical count of the ABX142E tubes in stock 1 a (the i 2 McDonald testified that the order form Thompson showed him was the same type of order involved, but was not the actual order form in- volved here, 2BY82928 12 McDonald testified that there is no way of determining which order a particular tube in the stockroom was produced from 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD count showed about 80 pieces, and to take them out of stock, which he did. Thompson then tested these tubes and when they did not stick to a magnet, he determined that they were made with stainless steel rather than carbon steel. A few days later, Thompson informed McDonald that Rodenhizer said that everybody who was involved with order 2BY82928 would be written up. McDonald testified that he later attended a discipli- nary meeting with Martin, Rodenhizer, Thompson, and his steward. At the meeting he was informed that he was being disciplined'' for his part in the error on the order in question. He told them that he was still not convinced that the tubes in question were produced by order 2BY82928. Although Thompson had shown him a docu- ment allegedly establishing that ABX142E had "zeroed out" prior to the fabrication of the order in question, he was not satisfied that it established that. He then asked why his leadman, Ernest Otero, who had assigned him the job, was not disciplined.' 5 They said that he was not in question. The question of fault arises here in two ways: the Gen- eral Counsel denies that the defective tubes were pro- duced in order 2BY82928, but defends that even if the wrong metal were used in order 2BY82928, it was not the responsibility of McDonald, Lucas, or McClain to select or check on the metal being used. This is more pronounced in the case of Lucas, whose position put him at the initial step in the process. The order states the dif- ferent processes that were to be performed, and the order in which they would be performed. Lucas is the employee who performed the initial job function on order 2BY82928: "Issue tubing, check wall thickness." Lucas testified that he picked the material of this order, but alleges that he picked the correct material. He is confident of this because he wrote the bin location (from which he took the materials) on the order, and it is the correct bin location as specified on the order. Regarding the different kinds of metals used by Respondent, Lucas testified: "that is not my job to know." He removes the stock from the bin, ties it up, and writes the date, his clock number, the material, and the part number. He then brings it to the department involved. Each depart- ment has an inspector whose job it is to inspect the mate- rial prior to its issuance to an operator. In the last week of November, Fred DeLibro, his supervisor, told him that department 145 had a problem with some incorrect material he had issued them in June, but they were look- ing into it. On December 3, he was called into DeLibro's office; present were he, DeLibro, and his union steward, Richard Lupo. He told him that he was being given a verbal warning for issuing the wrong material on order 2BY82928 and gave him a copy of the order. Lucas asked how he could have issued the wrong stock when the order shows that the bin location he wrote on the order was the correct bin; DeLibro agreed with him and 14 No grievance was filed regarding this discipline. is On March 19, 1982, McDonald was issued a written warning for using K-Monel rather than carbon steel , causing the tube to be rejected He received a 3-day suspension for this error He testified that when he was given this warning Thompson told him to "follow the order proper- ly," but did not tell him that it was his responsibility to check that the proper material was being used. said that he could not understand it either. Lucas then told Lupo that it was the first time he was disciplined in 9 years of employment at Respondent, and asked him what he could do to fight the warning; Lupo (who did not testify) said that he could "wipe his ass" with it. De- Libro said that he did not feel it warranted any discipli- nary action because it was his first disciplinary action, but Thompson wanted disciplinary action to be taken against him. He had asked for a written warning, but De- Libro convinced them that a verbal warning was ade- quate. McDonald performed the second and third proc- ess, "Cut to 7 3/4 length," "Burr both ends inside and out and wash" on June 23. McDonald testified that it was the responsibility of the leadman to give him the ma- terial to work on and, on the day in question, he finished a job and he asked Otero (who did not testify), his lead- man, for another job. Otero gave him order 2BY82928 and brought him to a bench where the material was. He cut the material to the proper length, cut it and burred it as set forth in the order. He did not see the top left-hand portion of the order, which identified Chrome-molly as the material to be used, and testified that, at the time, he had no knowledge of what Chrome-molly was; he knew what carbon steel was, but did not know that it was the same as Chrome-molly. He testified: "When I' m given a job I assume that's the proper material, by the leadman . .. when he gives me a job it's his job to make sure that I've got the proper material with the order that he's given me." Several years earlier, the operators used to get their own materials for their orders; that was changed so that the leadmen give the operators the mate- rials. McClain testified that he first learned of the problem on November 24, while he was working in department 127; at that time he was called to Thompson's office; also present were Thompson, Rodenhizer, and Germano. Thompson told him that Respondent had lost a lot of money on some work that he performed and that he per- formed the job the wrong way because he did not read the entire order. He showed McClain order 2BY82928 with his initials on it; the order indicates that McClain performed two operations on this order: "Swage one end," which means that he makes one end of the tube smaller so that it will fit into another tube, and "Anneal at 1275 degree F," which means that he sets the furnace for 1275 and bakes it for an hour at that temperature. McClain asked Thompson what he meant by the entire order and Thompson pointed to the top-left hand portion of the second page of the order where it said "material" and "Chrome-molly." McClain told him that he had never worked with the material before and he was taught to read the orders for the operations to be per- formed. He also told him that he had received the work from Otero and the inspector, Josephine Coble, had signed the order establishing that it was correct and that the employees performing the operations ahead of him should have caught the error. McClain testified that the procedure he followed in department 145 was that the lead man gave him the order form and took him to where the material was. He then checks the order to see what operations he was assigned to do; "Nobody taught DRESSER INDUSTRIES 103 me how to look up in the corner what material it was. I've been there three years and nobody taught me that." Regarding whether he was aware that carbon steel is Chrome-molly, he testified "I never knew that name." He also testified that while he was employed in depart- ment 145 he always had the inspector inspect his work and initial the order: "Because that's the first thing Howard (Thompson) tells you, get the Inspector first." Thompson testified that McDonald and McClain were disciplined for performing operations on the order with- out checking the type of material to be used, an error that caused Respondent to incur a loss of approximately $1000. He testified that it is the responsibility of the op- erator to check to see that the material he is operating on is correct; this is not the responsibility of the leadman: "The lead man's function is to assign work, to make major setups; major fixture changes and . . . help in- struct and train the employees . . . . It is not his respon- sibilities to read and identify each and every order for an operator. It is the operator's responsibility. .. . Regarding the employees' testimony that they had not been instructed as to what Chrome-molly was, Thomp- son testified: "I can only say that an individual who's worked in that department all this time and does not know what type of material he's working with, or how to identify the type of material he's working with, I'm surprised that we've managed to make a gauge." Stainless steel and carbon steel are easily differentiated; however, if stainless steel is mistakenly put through the annealing and oiling processes meant for carbon steel's (as occurred here), it comes out indistinguishable in ap- pearance from carbon steel; that is the reason that those employees who performed operations on the order subse- quent to McDonald and McClain were not disciplined; they had no way of knowing that the material was not carbon steel. When stainless steel is annealed, it becomes worthless to Respondent because it no longer meets its specifications. Thompson testified further that at the end of October, the processing of an order, which contained tube ABX142E as a component part, was begun. The order was processed, and in about the second week of Novem- ber, Thompson was informed by Otero and Coble that approximately 30 of the systems cracked when they were pressurized. He checked the order and saw that the tube should have been made of carbon steel; on checking it with a magnet he realized that it was stainless steel. He then determined to find out how many of these defective tubes there were and to isolate them; for that purpose, he went to the stockroom and asked McDonald to get all the ABXI42E tubes in the stockroom; he tested them with his magnet and found that they were all stainless steel and he had them all removed from the stockroom and charged them to his department. Thompson then checked the bin box in the stockroom where these tubes came from and found an inspection tag identifying them as having been produced in order 2BY82928. As he learned that there was an order for ABX142E subsequent to order 2BY82928, he inspected the bin containing this 16 Respondent does not perform annealing of stainless steel on its premises; it requires a different process and is performed elsewhere. order in the stockroom. He found few units left, and the ones that were there were made of carbon steel. He de- termined from this that the defective tubes were pro- duced in order 2BY82928 and he went to Respondent's cost department and obtained a copy of the order, there- by learning which operators were involved in the proc- essing of the order. Thompson then discussed the situa- tion with Rodenhizer and they decided that because an- other order of ABX 142E had gone into stock subsequent to those produced pursuant to order 2BY82928, that they should request an activity sheet (a computer printout of the quantity of the particular part entering and leaving the stockroom) of the part.'' Thompson testified that this activity sheet established that there were 15 to 18 ABX142E tubes in the stockroom when the 2BY82928 order went into stock, which was probably in August be- cause the order was being worked on in July, and the plant was closed the last 2 weeks of July. Rodenhizer told Thompson to figure the loss Respondent suffered due to the error. When this was determined, he and Ro- denhizer decided that as McDonald and McClain were responsible for the error, they would be disciplined. Thompson also testified that ABX142E is just one component of about seven necessary for a completed part, and such a part can remain in the stockroom for months before it is needed for production; that is why the error was not discovered until November. Thompson also testified that Otero set up McClain's machines for him to perform his work assignments; he would set it up pursuant to the specifications set forth in the order. The operators should be aware of the differ- ences in metals they work with, and should check all portions of the orders (including the material listed on the top left-hand corner of the second page) prior to per- forming their operations. In fact, when Thompson gave McClain his prior warning on March 19 he told him that it was his responsibility to read each order prior to per- forming any work on it to be sure that he had selected the proper materials and parts. Rodenhizer testified that when Thompson first in- formed him of the faulty tube, he told Thompson to in- vestigate the situation and locate the origin of the order. In this regard he reviewed numerous documents with Thompson, including the inventory activity sheet for ABX142E, which showed "basically only the one order in question. It is a relatively low active part." It showed that this part entered inventory in July and was issued in October or November; on this basis he recommended that McDonald and McClain be disciplined because it was their responsibility to check the material specified in the work order, and their failure to do so caused Re- spondent to suffer a loss. He did not recommend any dis- cipline for Otero because he had nothing to do with the • 17 Counsel for Respondent indicated at the hearing that the particular activity sheet that Thompson and Rodenhizer referred to no longer exists. However, the General Counsel introduced (and had received) into evidence an inventory activity sheet for ABX142E dated December 10. This covers receipts and issues of ABX142E (including the order num- bers) from November 1981 through November 1982, approximately 50 transactions in all. Order 2BY82928 was not included, nor were any transactions between July 9 and October 28. This omission was never ex- plained by Respondent. 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD problem: "He would not have any recourse to go over there unless they have got a problem." When an order came into the department, he would set up the machine to cut the tubing at the specified length , but he would not necessarily cut the actual material. The material is chosen by the stockclerk from the stockroom based on the contents of the order. It is then the responsibility of the operator to "verify the material" and cut it on the machine previously set up by Otero. Martin testified that when McClain was first notified of his error, he defend- ed that he could not tell the difference between the ma- terials from the order (presumably, the word Chrome- molly), but that when he showed him the different mate- rials, he was able to differentiate between carbon steel and stainless steel. E. Discipline of Bromley Bromley has been employed by Respondent since about 1977; in January he transferred to department 145 (with some assistance from Thompson , whom he had known for a long time) and assumed the job of leak tester, a job paid on a piecework, incentive basis. The al- legations regarding Bromley are that he was given a written warning dated October 21 and, after transferring to another department, was harassed, discriminated against, and threatened with discipline , all because he was nominated as a union trustee on Ferreira 's slate. Re- spondent alleges that he received the warning dated Oc- tober 21 because he was purposely misapplying his time and production, thereby improperly increasing his earn- ings, and that he was never harassed in his new position; rather his supervisors were attempting to get the appro- priate amount of production from him. Is As stated, supra, Bromley transferred to department 145 in January, and from " that time through September 27, he worked in that department as a leak tester. On that date he was injured on the job and was out until October 26, when he went to Respondent 's personnel office with a doctor's note saying that he was only capa- ble of performing limited duty for the next week; Re- spondent had no light work available and Bromley did not return to work until November 4, on which date he was given the warning dated October 21, to be discussed more fully, infra. The leak tester tests the parts or assemblies produced by Respondent to be certain that they are airtight and can withstand a certain amount of pressure. For this pur- pose there are two different testing stations: the high pressure station tests the assemblies with air and the low pressure station tests them with water . There are a total of 14 or 15 fixtures available on these stations and the as- semblies are attached to these fixtures for testing. Not all of these fixtures are operable at all times , and the rate 18 This allegation was an unpleasant and difficult one at the hearing (and correspondingly difficult at this stage ) because, at the time of the events in question, and to a lesser degree at the time of the hearing here, Bromley was experiencing some psychological difficulties for which he had been hospitalized and was receiving medical care. The issue there- fore arises whether his supervisors were exercising their normal supervi- sory prerogatives in motivating him to greater production , or were "nag- ging" him more than necessary, knowing that his precarious psychologi- cal state would cause him to overreact paid to the leak tester depends on the number of fixtures available, e.g., at the time in question, if only 7 fixtures were operable, the leak tester's rate is 50 percent higher than if all 14 fixtures were available. Respondent pro- vides a form for the leak testers, where they list the number of assemblies tested under the column of the number of fixtures available and, in a separate column, the number of assemblies that failed the test (leakers), which the leak test operator is also paid for on a speci- fied piecework basis. Respondent alleges that Bromley was given the warning dated October 21 solely because he was cheating Respondent in two areas: he was claim- ing that fewer fixtures were available than actually were available, thereby receiving a higher rate for each assem- bly tested (Bromley denies this, and he was taking double credit for the leakers; this part will be discussed first. As an illustration, order 2BY85466 was tested by Bromley on September 7; the order consisted of 100 as- semblies. After testing them Bromley filled out the form listing 96 pieces under 8 fixtures (with a rate of 1.28), 4 pieces under 4 fixtures19 (with a rate of 1 .82), and 58 leakers (with a rate of 3.22) that had to be returned to be repaired . Respondent alleges that Bromley was therefore taking credit for 158 assemblies on an order of 100. What he was supposed to do was to take credit for 42 (rather than 100) assemblies under the proper number of fixtures and then list 58 leakers. Bromley testified that when he commenced employment as a leak tester, a man, who could not speak English, and did not know how to prop- erly fill out the timesheets, instructed him on the job for a half day and he started filling out these sheets "through common sense." He also testified that because he lost time (downtime) on these machines due to minor prob- lems with them, Thompson told him to fill out the time- sheets that way rather than taking downtime (which is charged against the department). The other aspect of Bromley's alleged cheating was his listing of the number of fixtures available. Bromley testified that some of the available fixtures were always inoperable, and the number available generally ranged from 7 to 10 (out of 14 or 15) and his reports confirm this. The most common problem was that the threads on the fixtures were worn out, making the fixture inoperable because he had little success in finding replacement parts for the fixtures. Bromley denies listing fewer fixtures on his report than were actually available. George Strich, who is employed by Respondent as an industrial engineer, testified that he was asked by Thompson and Rodenhizer to study Bromley 's operation as a leak tester; they said that they felt there were dis- crepancies and they asked him to determine what they were. In this regard, using Bromley's reports for the week beginning September 13, he determined that if Bromley had applied the "proper rates against the proper quantities" he would have earned $385 rather than the $496 he reported for the week. He found that this was 19 These four pieces were correctly listed under 4 fixtures because with 8 fixtures available, the first 96 assemblies were tested on these fix- tures on 12 shifts As only four remained , the tester can take credit for four fixtures DRESSER INDUSTRIES 105 caused by Bromley taking double credit for leaders (which was not proper) and his understating the number of fixtures available. In this regard, he checked the origi- nal orders against the forms Bromley filled out and de- termined that he was taking credit for more assemblies than were in the order; he did this by listing the leakers twice. Regarding the number of fixtures available, Strich testified that "on the average they should all be avail- able," but "at the very most there might be times when you might have one, or perhaps two fixtures out of action."20 When he visited the leak test station on one occasion in September, 15 fixtures were available on one line, and 11 or 12 on the other. He testified: "I doubt very much it would go down to eight because it would not be practical to run them at that quantity . . . without getting it repaired . . . because of the excessive cost in- volved": the rate is about 40 percent higher than when 14 fixtures were available. He also testified that when he prepared the rates for the leak tester position in 1978 he prepared an explanation of the operation of these rates. However, at the time in question, both Thompson and Bromley told him that they never received this explana- tion. Thompson testified when Bromley began working in his department about January 18, he received approxi- mately a week's training by the previous operator, Gin- etti, who had worked as the leak tester for 4 years; the training included instructions on filling out the timesheet forms, and during this period he personally observed Ginetti and Bromley with timesheets many times (50 to 150 times during that week "whenever I would pass through that area.") However, received into evidence were payroll records maintained by Respondent, which establish that Ginetti transferred to another department on January 4, and was employed there for at least the following 6 weeks. The usual procedure is that the operator fills out the forms on a daily basis; they then come to Thompson's desk and he checks them only for "obvious errors." Thompson regularly receives from Respondent's payroll department computer printouts listing employees' total weekly wages. He testified that in about September, he noticed on these reports "that on a particular day his earnings were above normal; what he had normally been earning" and, on that basis, he requested Strich to deter- mine if Thompson was properly applying the rates. On cross-examination, Thompson 'testified: "I don't know what triggered my auditing or whether or not I just de- cided to audit it." (Strich testified that the fact that an employee was earning 200 percent would "not in itself" be particularly suspicious.) Strich later told him that Bromley had properly applied the rates, but a few days to a week later Strich told him that he did not feel that an operator could earn as much as Bromley was earning if the rates that he established were properly applied; that a competent operator could earn 160 or 170 percent; but Bromley's earnings were in the area of 200 percent. 20 Received in evidence were three daily production reports filled out by Bob Keegan in April and May and one filled out by Joseph Ginetti on September 29. These reports list one occasion where 10 fixtures were op- erating, 10 with 9 operable fixtures, I with 8, and 2 with 7. Thompson testified that because Bromley was an excel- lent worker whom he had known for a long time ("I trusted Tony"), and because of the complexity of the rates ("the rates are confusing to me"), Thompson deter- mined that Bromley's errors were due to confusion, rather than cheating and he informed Strich of this. A short time later (in late August or the first week in Sep- tember), Thompson told Bromley that Strich felt that he was misapplying the rates; but that he did not agree and felt that it was caused by confusion; he was also unsure of how they operated and he requested that Bromley be reinstructed on the rates. Thompson then informed Ro- denhizer of the situation and he (Rodenhizer) said that he would like to discuss it further with Strich. Shortly thereafter Thompson and Rodenhizer met with Strich and determined from an analysis of Bromley's production reports from January that the misapplication of rates could not have been an error, rather it was done pur- posely. He testified that this determination was based on the fact that Bromley's timesheets for the first 3 or 4 months in 1982 were properly filled out, after that there was a steady, but definite, increase in the misapplication of rates until it reached a certain high point and leveled off. Thompson then called Bromley into the office (this was on September 27, the day Bromley sustained his back injury) and told him that whereas he had originally attributed his errors on the reports to confusion on his part, a review of these sheets convinced him that, rather, it was a deliberate cheating and misapplication of time. Bromley did not respond; later that same day Thompson was informed that Bromley was injured. When Bromley returned to Respondent's employ on November 4, he was given the written warning. In order to support its position that Bromley purposely misapplied the rates and time on the daily production re- ports, Respondent moved into evidence a number of these reports filled out by Bromley in January and Sep- tember, presumably, to illustrate that he knew how to properly fill them out in January, and deliberately misap- plied them in September. Because those exhibits do not establish the number of assemblies to be tested in these orders, it is not helpful in that regard. However, the ex- hibits do establish that Bromley's entries for operable fix- tures in January averaged 10.04 out of 14 fixtures. In his September entries, the average was 7.89.21 On November 4, Bromley was called into Thompson's office; present were Thompson, himself, and his union steward, Billy Ryan. Thompson gave him the warning (the first he had received from Respondent), which stated: Based upon the summary relating to the misuse of standards report issued September 27, 1982 [Strich's report], covering misapplying time, incor- rect standards, incorrect quantities, and excessive use of standards, I am requesting the appropriate disciplinary action be taken up to and including dis- charge. 21 I understand that this is not, in itself, conclusive as the condition of the fixtures may have worsened since January. 106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thompson told him "you don't work in my depart- ment anymore." Ryan walked out with him and told him to return to his job and he would contact Porco. Shortly thereafter, Porco approached him and said: "stay here and work . . . Thompson don't know what he's talking about." Later that day he was called to a meeting in the personnel office; also present were Thompson, Roden- hizer, Martin, Porco, and Ryan. Martin asked him what he had to say about the warning and Bromley said he did what Thompson told him to do. Martin told him that he was fired. Bromley was called to another meeting in the personnel office about November 12; Kuba, Porco, Rodenhizer, Ridolfi, and Martin were also present. At this meeting Ridolfi asked Bromley if he still wanted to be employed by Respondent and he said that he did but felt that he did not want to return to department 145 be- cause he felt that Thompson was out to get him. Ridolfi told him that he would treat him as layoff and allow him to return in another department and bump anybody with less seniority. Bromley was given a choice of two other positions and he chose the position of electrolytic cutter in department 191. Rodenhizer testified that sometime during the summer Thompson spoke to him of a misapplication of time by Bromley; on the basis of this, they decided to have Strich do an indepth review of the job. Strich's report concluded that because Bromley had initially properly filled out his daily reports, his later reports clearly showed a change and misapplication of rates. On learn- ing this, Rodenhizer recommended that Bromley be given a written warning for this offense. He testified that this warning had no connection to any union activities on Bromley's part and, in fact, at the time he had no knowledge that Bromley was engaged in any union ac- tivities. Martin testified that he also reviewed Bromley's daily reports from January through September against Re- spondent's order forms and determined that during the latter portion of this period Bromley was taking double credit for leakers; that is why Bromley was given the October 21 warning; at the time, he was not aware that Bromley was involved in any intraunion activity. At the meeting with Bromley on November 4, Bromley denied understating the number of available fixtures, but after being shown certain documents, Bromley admitted taking double credit for leakers, and he was suspended pending a final review of the situation. At the November 12 meeting, attended by Ridolfi himself, Kuba, Porco, and Bromley, Bromley admitted that he had misapplied his time, but said that it was unintentional. Bromley was asked if he wished to return to work and he said that he did, but not as a leak tester. Ridolfi decided that because this was Bromley's first offense in 6 years of employ- ment, it would be treated as layoff rather than a dis- charge. Bromley and Porco then met with Martin at which time Bromley decided to bump an employee in department 191. Both Ridolfi and Martin testified that the meetings of November 4 and 12 were the only occa- sions when he discussed Bromley's discharge or suspen- sion with the Union and that, at the time, they were not aware that Bromley was involved in an intraunion elec- tion campaign. Frank Stramski Jr., who was also employed in depart- ment 145, was discharged in March 1982 for his fifth of- fense of falsification of time. Roman Bielawa and F. Bou- chard were each issued warnings by Respondent in Oc- tober for filling in their timesheets incorrectly by putting down a rate seven times what they should have received credit for; neither one was suspended. The remaining allegation regarding Bromley is that after he transferred to department 191, his supervisors, Robert Powers and Edward Stott, harassed him to such a degree that he quit, and he therefore was discharged constructively, due to his presence on the Ferreira slate of candidates. About late January 1983, Bromley went on medical leave; he did not return to Respondent's employ until a year later. During this period he was treated for depression. The General Counsel alleges that Bromley's departure in January 1983 was a result of two written warnings given him on January 7, 1983, and other harassment, which was intended to force him to quit. One of these warnings requested disciplinary action including time off or discharge because 3000 pieces of a part he produced contained a 77-percent rejection rate, costing almost $300. The other warning stated: On December 17, 1982, I instructed you to run the Pines Cutoff machines. I also told you that ev- eryday you should check and do whatever orders that were at the machines. On December 23, 1982, you did not operate this machine. On January 3, 1983, in the presence of Mr. E. Stott, Mr. J. Soltis [second-shift union steward] I asked you why you did not operate the Pines Cutoff machine on December 23, 1982. You did not have any explanation. I am recommending appropriate disciplinary action. Bromley testified that on transferring to department 191 he was given 1 week's training on the operation of the electrolytic cutter. On his second night of employ- ment in the department, Stott (who did not testify) told him that he cut the wrong tubes the previous evening. They got into an argument about it; people gathered around and Stott told Powers (who did not testify) to take Bromley to the personnel office because he was fired. Bromley told him that he had never previously op- erated the machine and that Stott had set it up for him, so that if there was a mistake, it was due to Stott. (Ap- parently, he was not brought to the personnel office that day.) He also testified that over the next 2 months Stott told him on about 10 occasions that he was going to fire him; on 2 or 3 occasions, he informed Bromley that he was making too many errors and he told him "all the time" that he was not producing enough. Bromley also testified that while he was employed in department 191 there were some large orders that required that both he and the day person work on the electrolytic cutter; the orders showed that he had produced more than the day person. About December, Bromley met Porco in the aisle at the plant and told him that he wanted to file a grievance against Stott and Powers because they were harassing DRESSER INDUSTRIES 107 him. Porco told Bromley that if his brother-in-law (Fer- reira) had any compassion for him he would tell him to resign as trustee, and he should go to Kuba's office and resign as trustee because "I've seen people with those problems like you . . . go crazy." On January 5, 1983, Stott and Powers brought Bromley to Martin's office saying that Bromley said that he wished to be taken off the job because their harassment of him was affecting his health; Bromley denied having made such a request. Of the two warnings issued to him on January 7, 1983, regarding the alleged 77-percent rejection rate warning, Bromley testified that he and the day person jointly pro- duced the order containing 40,000 pieces, and their pro- duction was mixed in the same basket, so Stott and Powers had no way of knowing that he produced the re- jected pieces. Additionally, once that machine is set up at the desired setting, it runs automatically until it runs out of stock or is turned off; therefore, either all or none of the production should have been accepted or rejected. Regarding the warning for not operating the Pine Cutoff machine on December 23, the General Counsel produced Respondent's time pass stating that on December 23 Bromley left the plant at 8 p.m. (rather than the shift end) due to "personal illness." On January 7, after re- ceiving these warnings, Bromley left work early at 7 p.m., after going to the nurse's office, because "it was starting to get to me." About a week or two later Brom- ley went to Martin's office and told him that he wanted to quit; he said that until his nomination for trustee he never had any problems in his employment at Respond- ent. Porco then came by and told Bromley that he should resign as trustee; Porco got a witness and Brom- ley filled out a form stating that he was resigning as trustee; Porco told him to go and get the help that he needed and he left the plant and did not return until a year later. During this period he was placed on medical leave status by Respondent. Whether he or his wife called Respondent after January 1983 saying that he was sick, Bromley testified that he could have, but he did not remember.22 After leaving Respondent's employ in Janu- ary 1983 he was under psychiatric care for depression anxiety. During the period that he was out, Martin called him "quite a few times" and told him that he should call him a few weeks before he was ready to return to work; during this period he was "afraid" to return to work" be- cause of the harassment that they gave me," "they" being Stott and Powers; in his numerous conversations with Martin after he left, he never asked to return to em- ployment in a different department. Martin testified that he was present at the January 7, 1983 meeting with Bromley, Stott, Powers, and Porco to discuss the two warnings to Bromley of that date; Brom- ley said that Stott and Powers were harassing him. Martin asked Bromley if the supervisors had the right to direct employees' work and he said that they did. Martin asked him what he meant by harassment, and Bromley said that they were constantly telling him what to do and when to do it. Martin asked, "didn't he previously 21 Bromley's testimony regarding the post-January 7, 1983 events and exactly when he left Respondent's employ is somewhat vague. He testi- fied that during this period he was under medication-Elavil and Valium. say that a supervisor has the right to do that," and Bromley said, "Yes." Martin asked: "Well, is the supervi- sor harassing you?" and Bromley said, "No, I guess he's not." Martin testified further that about 2 weeks after this January 7, 1983 meeting, he received a telephone call from Bromley stating that he was seeing a doctor and would not return to work while he was under a doc- tor's care. After that Martin periodically called Bromley, asked how he was feeling; and asked if he could give him an idea of when he would return to work; Bromley's reaction was that he was still under a doctor's care and could not give him a firm date. F. Alleged Favoritisim Toward Kuba Slate This allegation involves the following rule that was posted by Respondent on November 12: The company is aware there may be a possible Union election within 145. It is the position and policy of the Company not to endorse any union campaign during working hours. There are two violations alleged in this regard: that Respondent promulgated this rule to discourage employ- ees from campaigning for union office and that Respond- ent disparately enforced this rule and other unwritten rules by permitting employees to campaign for the Kuba slate while preventing employees from campaigning for the Ferreira slate. On November 3, the morning after the Union's nomi- nations, Nash (Ferreira's foreman) approached Ferreira at his work station and told him that he was not allowed to talk to anyone or to leave his machine and area. Fer- reira asked why and Nash said: "I'm telling you, I don't want you talking to anybody or leaving your machine and area" and he walked away and returned to his office. A few minutes later he came out of his office, ap- proached Ferreira, and asked: "Did I make myself under- stood? I don't want you talking to anybody." Ferreira asked Nash why he did not say anything to Germano or Joe Marinko who were speaking to a large number of employees in the aisles. Nash said: "In other words, you are not going to do what I am telling you?" Ferreira said that was not what he was saying; he was just saying that he should tell Germano and Marinko the same thing. Nash said that would be too conspicious and that he would get his boss. Ferreira observed Nash go into his office and saw through the glass that he was on the phone. A few minutes later, Leo Perry, the general fore- man, Neil Priestly, the plant superintendent, and Roden- hizer all congregated in Nash's office, although nothing further was said to Ferreira at the time. Later that day Zajac was checking his work in the same area as Ferreira, and started to talk to him; Ferreira observed Nash watching from his office, and he quickly came out of his office and told Zajac not to talk to Fer- reira. Later that week, during Ferreira's coffeebreak, fellow employee Al Minchik came over to him to con- gratulate him on the nomination. Nash immediately came out of his office and asked Minchik: "Don't you have anything better to do?" Minchik walked away. Shortly thereafter a fellow employee named Heddy approached 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ferreira at his machine to speak to him. About a minute later, Nash came over and told her not to talk to Fer- reira at his machine, but before he could say anything, Nash sent him away. In addition, whenever Ferreira went to the bathroom, Nash followed him. Ferreira testified that prior to November 3, the prac- tice in the plant was that fellow employees could speak for a minute or two at the work stations without restric- tion by the foreman. Zajac testified that prior to Novem- ber 3, the policy was: "As long as you're not there for an excessive time, nobody ever says anything." After November 3, nobody could get close to Ferreira's ma- chine to speak to him: "Mr. Nash would constantly come out and chase the people away." Nash also warned other employees about conversing with their fellow employees, but not with the same frequency as Ferreira, who usually had more visitors. On November 4, Zajac asked Nash why he only interrupted Ferreira's conversations with his fellow employees; after that, Nash began to interrupt other employees' conversations as well. About Novem- ber 3, McDonald went to speak to Ferreira at his work station about the upcoming election; as soon as he got there, Nash came out of his office and told him to leave. McDonald testified that as long as he had been employed by Respondent (almost 6 years) the policy had been that you can speak to fellow employees as long as you keep the conversation brief. On November 3, about 3:15 Keegan (who was then employed on the second shift) stopped to talk to Ferreira at his work station, as was his custom when he arrived for work; he asked Ferreira about the prior evenings' nominations. After about 3 to 5 minutes, Nash approached and told Keegan that he did not want him talking to Ferreira. Keegan asked why, since everybody stops and talks, and Nash said, "I don't care, you heard what I said." Keegan testified that as long as he had been employed by Respondent (13 years) employees were allowed to converse for a few minutes. Approximately a week prior to the union election (January 28, 1983), while Ferreira was at his machine, he observed Porco handing Germano some T-shirts that were blue with yellow print, stating on the front: "Progress Not Promises" and on the back it said "Vote for the Kuba team." Later he observed Germano, Joe Atkins, and union trustee and steward Lupo handing these shirts to employees in the plant. On November 3, while Judy Tumbleston was working, Mike Varonka, her steward, asked her to sign a petition stating that attendance at 50 percent of the union meet- ings was a prerequisite to running for union office. She refused to sign it, but Varonka spent a half hour asking everybody in the department to sign it. She is not aware of whether her foreman witnessed this. One afternoon in late January 1983, Coverson observed union steward Steve Bryant walk past the glass-enclosed portion of her foreman Bob Waters' office, carrying the Kuba slate T- shirts referred to, supra. Waters was present in his office at the time. Bryant was walking through the department, passing them out, and throwing them to employees, saying: "Be sure to vote the right way." Waters' desk faces the department, but she testified that she could not specifically say that he observed Bryant's actions. One morning in mid-January 1983, shortly prior to 7 a.m., Lucas observed Porco and his son-in-law and union steward John Blake walking into departments 125 and 126 carrying a carton of the previously referred to T- shirts and Kuba campaign buttons; Porco was also wear- ing a Kuba jacket. They started handing out the shirts, and continued after the 7 a.m. buzzer went off and handed them out until 7:15; the foreman of the depart- ments, William Muldowny, was present at the time. About 7:30 a.m., Lucas observed Iodice distributing the Kuba T-shirts in department 145, in the presence of Nash and Thompson. About 8:30 that same morning, Iodice drove his tow motor into Lucas' department (receiving) and distributed the T-shirts to the employees in the de- partment in the presence of the Foreman Fred DeLibro who was watching but said nothing. About an hour later, while Lucas was in department 191, he observed lodice distributing the T-shirts in that department. About mid-January, about 11 a.m., Zajac observed Germano distributing Kuba campaign buttons to employ- ees in department 145. At the time, Nash was in his office, and Germano was about 25 feet from the office, but he does not know whether Nash observed the inci- dent. In mid-January 1983, employee Eldwyn Worster ob- served Porco walk into department 145 about 10:30 a.m. carrying Kuba campaign T-shirts and distributing them to employees in the department. Worster asked Porco for a shirt and Porco said: "If you want one we'll get you one." Nash observed this and laughed, saying: "You guys are something else" and walked into his office with- out attempting to hinder Porco's distribution. In January 1983, McDonald observed Germano handing out the campaign T-shirts to employees in the aisle between de- partments 145 and 173. Germano asked McDonald if he wanted one and McDonald refused, saying he would not campaign for either side. About a week prior to the elec- tion about 7:10 a.m., Keegan observed Porco carrying a carton of Kuba campaign shirts, and observed him giving them to Germano. He also gave some of these shirts to Iodice who drove by on his tow motor. Porco remained for a few more minutes before he left the department. Keegan observed Thompson, Nash, and Foreman Tony Farrar in the window office at the time, although Keegan could not tell whether they were observing Porco and Germano. Keegan later asked Ridolfi why Porco was allowed to distribute T-shirts in the plant; Ri- dolfi said that there was nothing he could do about what employees have written on the shirts they are wearing; but that they would check into whether they are being distributed during working hours. Later, Ridolfi told Keegan that he had spoken to Porco about it, and Porco said that it was not being done during working hours, but that he would watch the situation. Ridolfi testified that about early November, Nash complained to him that he was having a difficult time controlling his department because of the upcoming union election. He said that he was having trouble with the incumbents and stewards, and he was also disturbed by the large number of employees coming to talk to Fer- reira at his work station. Nash described the department DRESSER INDUSTRIES as a "hot bed of activity on both sides." A few days later, Ferreira complained to him about the incumbents circulating the petition regarding the requirements that people running for office attend a certain percentage of the union meetings; this complaint was "part of the cause" of the November 12 notice. IV. ANALYSIS AND CONCLUSIONS Respondent alleges that the Board should defer to the arbitration process the discharges of Ferreira and Grodis. It is undisputed that both Grodis and Ferreira had filed, grievances regarding their discharges and both these grievances were pending arbitration hearings when they were withdrawn by Grodis and Ferreira. The General Counsel alleges that while similar cases might normally be subject to deferral under recent Board law, this case is distinguishable because of the lack of "substantial har- mony" between the interests of the Union and that of Grodis and Ferreira. In United Technologies Corp., 268 NLRB 557 (1984), the Board decided to overrule General American Trans- portation, 228 NLRB 808 (1977), and return to the doc- trine of deferral as set forth in Collyer Insulated Wire, 192 NLRB 837 (1971). Although I might ordinarily agree with counsel for Respondent' s argument, the General Counsel's argument that deferral is not appropriate due to the circumstances here is persuasive. Ferreira orga- nized and headed the slate opposing the reelection of the incumbent union officials and Grodis was nominated for vice president. Apparently the campaign was a rough one; within a day or two of the nominations, the incum- bents were circulating a petition throughout the plant seeking to establish a requirement that candidates attend a majority of the Union's meetings; this would have made ineligible some of the candidates on Ferreira's slate . In addition, when Bromley was going through a difficult time in late January 1983, Porco convinced him to resign as trustee, in what was clearly not a humanitari- an gesture. Finally, when Lucas asked union steward Lupo how he could fight the warning he received, Lupo told him that he would "wipe his ass" with it. Although there was also evidence that Porco and other union rep- resentatives assisted Ferreira, Grodis, and the others in- volved here in their meetings with representatives of Re- spondent, there is substantial evidence that Ferreira and Grodis had valid reasons for feeling that their representa- tion by the Union in the upcoming arbitrations might be lacking in sincerity. In United Technologies, supra, the Board cites with ap- proval the dissent in General American Transportation, supra, which stated that the Board "has refused to defer where the interests of the union which might be expect- ed to represent the employee filing the unfair labor prac- tice charge are adverse to those of the employee." Na- tional Radio Co., 198 NLRB 527 (1972), cited by the Board with approval in United Technologies, involved discipline of an active union adherent, who had been president of the union for 5 years and had handled griev- ances and contract negotiations for the union. The Board, in deciding to defer to the arbitral process, stated: 109 We may assume that the Union will be aware of its institutional interests in protecting its officer and leading proponent against discipline which is thought to restrict his activities on the Union's behalf. In that respect, especially, it must be noted that the interests of the employee and his represent- ative are in substantial harmony in this case and are likely to be so in every such case. It is sufficient to note here that in protecting O'Connell, the Union protects itself as well. Because of the campaign undertaken by Ferreira and Grodis, no such assumption can be made here. Although it cannot be stated with certainty that the union leader- ship would inadequately represent them at an arbitration proceeding, there is sufficient evidence of animus by the union leadership to Ferreira and the other members of his slate, so that they should not be relegated "to an arbi- tral process authored, administered, and invoked entirely by parties hostile to their interests." Kansas Meat Packers, 198 NLRB 543, 544 (1972). On the basis of the record testimony, I find that Re- spondent favored the Kuba slate over the Ferreira slate in the union election. The uncontradicted credible evi- dence establishes that beginning the day after the union nominations, Respondent restricted, or completely elimi- nated, the employees' ability to communicate with Fer- reira at work; whenever an employee approached him after that date, Nash was out of his office to warn the employees not to talk to him. This represented a change from Respondent's prior policy of allowing employees to talk for a few minutes as long as production was not ad- versely affected. The timing of this change (the day fol- lowing the union nominations) leaves little doubt regard- ing its cause. At the same time, however, Respondent was allowing the Kuba slate what appeared to be almost free reign in distributing its T-shirts and campaign but- tons throughout the plant, on both working and non- working hours. A clear demonstration of this favortism is Worster's testimony that while Nash was observing Porco distributing T-shirts during working hours, he (Nash) laughed and said, "You guys are something else." This is the same foreman who immediately came out of his office every time an employee stopped to talk to Fer- reira. All this testimony was credible and uncontradicted and establishes that Respondent disparately enforced its November 12 rule by permitting the Kuba slate to cam- paign during working hours while denying that right to the Ferreira slate, in violation of Section 8(a)(1) of the Act.23 However, I find insufficient evidence to support the General Counsel's other allegation in this regard, that Respondent promulgated this rule to discourage cam- paigning, and this allegation will therefore be dismissed. In Wright Line, 251 NLRB 1083 (1980), the Board set forth the rule to be applied in determining whether cer- tain actions are in violation of Section 8(a)(1) or (3) of the Act: "First we shall require that the General Counsel 23 As should be obvious, this finding does not mean that employers violate the Act when they restrict mtraunion campaigning during the working hours. Rather, the violation results from allowing one side to campaign freely while denying that right to the other side. 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD make a prima facie showing sufficient to support the in- ference that protected conduct was a motivating factor in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." This burden was approved by the Supreme Court in NLRB v. Transportation Manage- ment Corp., 462 U.S. 393 (1983). The General Counsel has clearly made the required prima facie showing regarding the discharges of Ferreira and Grodis. I have previously found that Respondent's action established that it favored the incumbent slate over the insurgent slate headed by Ferreira. Regarding knowledge of Grodis and Ferreira's union activities, Grodis asked Caldwell for his opinion of opposing the Kuba slate and later informed Priestly and Sherwood of his intention to do so; although neither expressed any hostility to him at the time, it establishes that they were aware of his actions although Ferreira was more secre- tive about the members of his slate, Respondent's knowl- edge of his participation in this slate is established by Nash's comment, interrupting Ferreira's discussion with Zajac, that he did not want Ferreira discussing union business and that he was not going to fight two unions. This indicates that Nash was aware of the insurgent slate and Ferreira's position on it.24 And finally, Ferreira and Grodis, who were both excellent employees, were dis- charged without any prior warnings compared with other employees who had received numerous warnings before being discharged; Ferreira had previously re- ceived one verbal warning years before for poor attend- ance, and Grodis had never previously received any warnings or discipline; in fact, 2 weeks prior to his dis- charge he was promoted to a leadman's position. Next for analysis is whether Respondent satisfied its burden. Respondent posted two notices, one in 1981 and one on August 20, 1982, prohibiting gambling. However, the uncontradicted and credible testimony establishes that the 1981 notice and (to a lesser extent) the August 1982 notice were consistently violated and were only en- forced against Ferreira and Grodis). Gambling and com- mercial activities were widespread throughout the plant and yet nobody was ever discharged or disciplined for this prior to Grodis and Ferreira. The degree of the gambling activities was so widespread that I do not credit the testimony of Respondent's witnesses that they were unaware of these activities; it is difficult to believe that Martin, who appeared to be an attentive and diligent personnel manager who walked through the plant regu- larly (six times a day on the average) did not observe lodice selling numbers or Raganese (whose desk he gen- erally must walk past in entering the plant) selling dolls and other items from her desk. Also relevant is the grav- ity of the activity involved; Iodice was selling numbers while operating his tow motor; he was stopping employ- ees during their worktime and blocking the aisles with the tow motor, while there is no evidence that Ferreira 24 Additionally, I do not credit Martin's testimony that he did not learn of Ferreira's candidacy until mid- or late-November His frequent trips through the plant and contacts with the department foreman make this extremely unlikely He certainly was aware of it at the end of Octo- ber, on receiving the charge from the Board and Grodis' activities interfered in any way with produc- tion. Finally, Respondent's testimony of the events leading to the discharges does not ring true: the anonymous note informed them of the activities of Ferreira and Grodis (and nothing else); additionally, the investigation appears to have been fabricated to cover up the discriminatory purpose of the discharges. It is interesting to note Mar- tin's answer to Washington who, while being questioned by Martin regarding his involvement in purchasing lot- tery tickets from Ferreira and Grodis, mentioned all the other "illegal stuff" like numbers and pools that was oc- curring at the plant; Martin answered : "that's not the issue right now." I have limited my discussion of these discharges somewhat because the evidence establishes that they were obviously pretextual. As Administrative Law Judge Gerald A. Wacknov stated in Igloo Corp., 254 NLRB 641, 647 (1981): On the basis of the foregoing, I find that the rea- sons advanced by Respondent for the discharges of Kuebler and Aguilar are so unpersuasive, unreason- able, and unnatural, and are so far removed from any semblance of justifiability in terms of past prac- tice, as to mandate the conclusion that the assigned reasons for the discharges are pretextual. I therefore find that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Ferreira and Grodis on October 1. When the Wright Line test is applied to McClain's layoff, it is also clear that the General Counsel has sus- tained his initial burden. He had been employed in de- partment 145 for 3 years and was informed of the layoff on the day following his nomination as trustee on the Ferreira slate. As I have found that Respondent favored the Kuba slate that, alone, would be enough to satisfy the initial burden. There is also the testimony of Johnson that Thompson told her that he had finally gotten rid of McClain, whom he referred to as a troublemaker. Thompson denies this, testifying that he told Johnson that McClain was laid off, that he was giving him prob- lems in that he was often arguing with others in the de- partment, and his transfer might make him appreciate the job and the earnings of department 145. I generally found Johnson to be an unconvincing witness and I would credit her testimony over that of Thompson, and I would therefore find that Thompson made the state- ment to Johnson. Regarding Respondent's burden, they allege that nu- merous employees were laid off from department 145 prior to McClain due to a drop in production in the de- partment. What was not satisfactorily explained was why McClain was laid off ahead of Neely. McClain had 3 years higher seniority than Neely. At the time of the layoff, Neely was the only departmental employee on the night shift. Martin testified that in November he offered McClain Neely's night-shift job, but he refused it. McClain and Thompson testified that McClain was not offered this position in November; rather it was in Sep- tember or October 1983 when he was again laid off from department 145 that he was offered Neely's night-shift DRESSER INDUSTRIES position, which, at that time, he refused because he had another job . Respondent never satisfactorily explained why it did not offer McClain Neely 's night-shift position in November, as is apparently required by the contract's provision that seniority is by department. Respondent de- fends its action on the ground that Neely's job classifica- tion was set up, operate , and instruct, while McClain was only set up and operate. As Neely was the only employ- ee on the shift, there was nobody to instruct; and even it it is true that the classification "instruct" also means that the employee is capable of operating every machine in the heat treat area, I would credit McClain over Martin and Thompson and find that he was able to do so. I therefore find that Respondent has not satisfied its burden under Wright Line, and its layoff of McClain (and subsequent transfer) therefore violates Section 8(a)(1) and (3) of the Act. Regarding the warnings given to McClain, Lucas, and McDonald, the General Counsel has again sustained his initial burden; Lucas nominated Grodis for the vice president's position on the Ferreira slate at the Union's nominations on November 2 and McClain was a candi- date for trustee on the Ferreira slate . McDonald's union activities were more limited: on November 3 Germano asked him whom he intended to vote for ; when he an- swered that he wanted to hear the issues before he decid- ed, Germano shouted, "In other words, you are going to vote for them." Although McDonald's activities were extremely limited and would clearly not be adequate to sustain a violation alone, McClain and Lucas engaged in such activities and, if Respondent wished to penalize them for these activities , it would have to include McDonald in this penalty as he was between Lucas and McClain in the production process. Finally, the timing of the "discovery" supports the General Counsel 's case; al- though the error was made in June , it was not discov- ered until a few days after the nominations. I find that Respondent has not sustained its burden of establishing that Lucas, McDonald, and McClain would have been reprimanded even absent their activities. Clearly a mistake was made in the type of metal used in an order, but Lucas, McDonald, and McClain testified credibly that they were not familiar with the term Chrome-molly although they know what carbon steel is. Interestingly, throughout his testimony , Thompson gen- erally referred to this metal as carbon steel . Even if these employees were expected to look at the second page of the order where the word "Chrome-molly" appears, they would not have been able to identify the substance. In addition, if a mistake were made in not checking and properly identifying the material to be used, the mistake was by Lucas or Otero who picked the material; even that it is not clear, however, as the work order indicates that Lucas obtained the material from the correct bin. McDonald and McClain were justified in assuming that the material they received was the proper material. Most importantly, Respondent has not established that the im- proper tubes discovered in November were produced in order 2BY82928. Thompson's testimony in that regard is not supported by documentary evidence (the unexplained inventory activity sheet) or reasonable inferences. For example, the incomplete inventory activity sheet in evi- 111 dence states that on June 4, the stockroom received 148 ABX142E tubes; between that date and the time that order 2BY82928 was produced , 113 of these tubes were issued by the stockroom for orders , leaving 35 tubes from that order, and whatever may have remained from other prior orders. As I credit McDonald's testimony that there is no way of determining from which order specific tubes were produced , I therefore find that Re- spondent had no way of knowing that the defective tubes were manufactured in order 2BY82928 . Regardless of who was at fault, I find that Respondent seized on these defective tubes as a means of justifying its warnings to Lucas, McDonald, and McClain. In this regard, the inventory activity sheet in evidence establishes that for the first 6 months of 1982, the stockroom issued 501 ABX142E tubes in 24 transactions. With such a fairly active turnover, it is reasonable to assume that a defect would have been discovered earlier than 3 months after the parts entered the stockroom . As Respondent has not sustained its burden, I find that its warnings to Lucas, McDonald, and McClain, and the brief suspensions of McDonald and McClain violate Section 8 (a)(1) and (3) of the Act. The General Counsel has also sustained his initial burden regarding Bromley's discharge, which was later changed to a layoff and transfer . The timing is again im- portant; Bromley informed Thompson of his intention of running for trustee on Ferreira's slate in August; shortly thereafter Bromley's daily production reports were being investigated by Strich, at the request of Thompson and Rodenhizer. Thompson testified he did not know what prompted this investigation ; he also testified that on a particular day Bromley's earnings were above normal and on that basis he asked Strich to investigate Brom- ley's reports. Strich testified that the fact that Bromley was earning 200 percent would not alone be particularly suspicious. In this regard, it should be noted that Brom- ley had, at that time , been employed by Respondent for 5 years and during the period he had an unblemished work record. With such an excellent employee whom he had known for a long time, it would seem that Thomp- son would remember what event caused him to investi- gate whether Bromley was dishonestly preparing his daily reports. Thompson's imprecise testimony in this regard supports the General Counsel's theory that it was Bromley's position on the Ferreira slate that caused Bromley to be investigated and later laid off and sus- pended. I would also find that Respondent has not sustained its burden of establsishing that Bromley would have been disciplined as he was, absent his union activities . Princi- pal among my reasons was the uncertain testimony of Thompson about what triggered the investigation, and Strich's conflicting testimony in this regard . Also, prior to this, Bromley had been a perfect employee for 5 years; he was immediately discharged (later changed to a layoff and transfer) for this offense; yet Stramski (also employed in department 145) was not discharged until his fifth offense of falsification of time , earlier that year. In addition, two other employees were only given warn- ings in October for taking credit for a rate seven times 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD what the proper rate should have been. Finally, it is clear from the record that Bromley did take double credit leakers; however, his uncontradicted testimony is that Thompson told him to do so rather than taking downtime for defective equipment. Additionally, Thompson's testimony that Ginetti spent a full week ex- plaining the job and rates to Bromley is contradicted by the evidence that Ginetti transferred from the depart- ment prior to that; rather I credit Bromley's testimony that his training for the job was minimal. I therefore find that by discharging Bromley on November 4, Respond- ent violated Section 8(a)(1) and (3) of the Act. There are two elements necessary to establish a con- structive discharge: "First, the burdens imposed on the employees must cause, and be intended to cause , a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee 's union activi- ties." Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976); K & S Circuits, 255 NLRB 1270 (1981). Montgomery Ward & Co., 160 NLRB 1729, 1742 (1966), stated: "An employer `constructively' discharges an em- ployee in violation of the Act where, for discriminatory reasons, he makes the employee's conditions of work so intolerable or undersirable that he is thereby forced to quit his job." In Bechtel Corp., 200 NLRB 975 fn. 2 (1972), the Board stated that they have found construc- tive discharge situations where an employer had made "conditions for an employee so intolerable that no rea- sonable person could be expected to remain in employ- ment" (emphasis supplied). See also Hit 'N Run Food Stores, 231 NLRB 660 (1977), and Panscape Corp., 231 NLRB 693 (1977). In Crystal Princeton Refining, supra, the Board stated that the new tasks had to be either physically or emotionally .impossible for the employee to perform, to convert a quit to a constructive discharge. Van Pelt Fire Trucks, 238 NLRB 794 (1978). One reason for this rule is that parties to Board proceedings must mitigate whenever possible and "the Act provides an ap- propriate and direct remedy for infringement of rights protected by Section 7." Central Casket Co., 225 NLRB 362, 363 (1976). In the situation herein rather than resign- ing, an unfair labor practice could have been filed alleg- ing that the "harassment" was unlawfully motivated. I find insufficient evidence that Respondent's actions constituted a constructive discharge. In the 2-month period that he worked in department 191, Stott and Powers gave Bromley two warnings, warned him that they were going to fire him and told him that he was making too many errors and was not producing enough. Although this made it difficult for Bromley, especially considering his fragile psychological state, it did not make his working conditions so difficult, unpleasant, in- tolerable, or undesirable to cause a reasonable person to quit. For this reason, I find that Bromley was not con- structively discharged in January 1983; I therefore find it unnecessary to determine whether Stott and Powers' ac- tions were caused by Bromley's union activities. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by disparately enforcing the November 12, 1982 memoran- dum, by restricting campaigning by employees favoring candidates on the Ferreira slate, while allowing such campaigning by candidates on the Kuba slate. 4. Respondent violated Section 8(a)(1) and (3) of the Act by discharging Ferreira and Grodis on October 1, 1982. 5. Respondent violated Section 8(a)(1) and (3) of the Act by its layoff of McClain from his heat treat position in department 145 on November 11, 1982. 6. Respondent violated Section 8(a)(1) and (3) of the Act by its warnings given to McClain and McDonald, dated November 24, 1982, and its warning given to Lucas, dated December 3, 1982, and by the subsequent suspensions given to McClain and McDonald. 7. Respondent violated Section 8(a)(1) and (3) of the Act by discharging Bromley on November 4, 1982. 8. Respondent did not violate the Act as further al- leged in the consolidated complaint. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act. I have found that Respondent discriminatorily dis- charged, laid off, or suspended Ferreira, Grodis, McClain, McDonald, and Bromley. Lucas received a warning but was not suspended; Grodis was never rein- stated, while the others returned to Respondent's employ from a few days to 25 days after the discriminatory action. I shall order that Respondent make these individ- uals whole for any loss of earnings they suffered as a result of the discrimination, by payment of a sum equal to that which they otherwise have earned, absent the dis- crimination, with backpay and interest computed in ac- cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977), see generally Isis Plumbing Co., 138 NLRB 716 (1962). In addition, I shall recommend that any references to these discharges, layoffs, suspensions, or warnings in the files of Ferreira, Grodis, McClain, McDonald, Lucas, and Bromley, be removed from their employment records. I shall also recommend that Respondent be ordered to offer Grodis full and immediate reinstatement to his former position or, if that position no longer exists, to a substantially equivalent job, without prejudice to his se- niority or other rights and privileges. I shall also recom- mend that Respondent be ordered to offer to McClain and Bromley the option of reinstatement to the positions they were employed in immediately prior to the discrimi- nation against them. [Recommended Order omitted from publication.]