Purolator Products, Inc.

986 PUROLATOR PRODUCTS Purolator Products, Inc. and its successor Purolator Products, Inc., Division of Facet Enterprises, Inc. and Dennis J. Roberts and United Paper- workers International Union, AFL-CIO, CLC. Cases 11-CA-12071, 11-CA-12084, 11-CA- 12117, and 11-CA-12288 July 21, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND CRACRAFT On September 18, 1987, Administrative Law Judge Lawrence W. Cullen issued the attached de- cision.' The General Counsel filed exceptions2 and a supporting brief, and the Respondent filed excep- tions, a supporting brief, and an answering brief. 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, 3 and conclusions and to adopt the recommended Order.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Purolator Products, Inc. and its successor Purolator Prod- ucts, Inc., Division of Facet Enterprises, Inc., Fay- etteville, North Carolina, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order, except that the attached notice is sub- stituted for that of the administrative law judge. We have carefully examined the record and find no basis for reversing the findings. 4 Although the judge ordered that the Respondent rescind any discipli- nary actions taken pursuant to the disciplinary policy regarding the wear- ing of identification badges found unlawful and that the Respondent remove from its files any reference to such disciplinary actions, the judge failed to include these provisions in the notice . We will therefore attach a new notice that includes these provisions APPENDIX ' In his decision, the judge found, inter alts, that the Respondent did not violate Sec. 8(aX5) by its withdrawal of recognition from the Union in February 1987. The General Counsel has filed a motion to remand this proceeding to the judge, to reopen the record, to consolidate Case 11- CA-12446 with the instant cases, and to conduct a second hearing on the issue of whether the Respondent violated Sec 8(aX5) of the Act when it withdrew recognition from the Union in February 1987. The complaint in Case 11-CA-12446 alleges that the Respondent unlawfully assisted or encouraged employees in circulating a decertification petition in violation of Sec 8(a)(1) and unlawfully withdrew recognition from the Union, based on the "tainted" decertification petition, in violation of Sec. 8(aX5). In Purolator Products, 289 NLRB 984 ( 1988), the Board has granted the Respondent's Motion for Summary Judgment in Case II-CA-12446 and dismissed the complaint on the authority of Jefferson Chemical Co, 200 NLRB 992 (1972), which prohibits the multiple litigation of issues that should have been presented in the initial proceeding As in Case 11-CA-12446, the General Counsel asserts here that evi- dence concerning the impropriety of the Respondent's withdrawal of rec- ognition was revealed by the investigation of the charge in Case I1-CA- 12446, which occurred after the close of the hearing in the instant cases That investigation allegedly disclosed that the decertification petition may have been tainted by supervisory involvement and assistance. The investigation also allegedly disclosed evidence that the Respondent urged an employee to mislead the Union and the Board if inquiries were made about the supervisor's involvement with the petition The General Coun- sel further asserts that the evidence in Case 11 -CA-12446 was not known to the General Counsel nor could it have reasonably been expected to have been known by the General Counsel at the time of the litigation of the instant cases Lastly, the General Counsel argues that, in view of the Respondent's conduct, it cannot legitimately argue unfair prejudice by any delay in the litigation of the "supervisory taint" issue In light of our ruling on the Respondent 's Motion for Summary Judgment in Case II- CA-12446, we deny the General Counsel's motion to remand this pro- ceeding and to reopen the record. 2 The General Counsel seeks, inter alia, a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Re- spondent under the Federal Rules of Civil Procedure subject to the su- pervision of the United States court of appeals enforcing this Order. Under the circumstances of this case , we find it unnecessary to include such an order See Cherokee Marine Terminal, 287 NLRB 1080 (1988). s The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951) 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 unilaterally implement a discipli- nary procedure in connection with the wearing of employee identification badges. WE WILL NOT deny you union representation during investigatory interviews when the Union is the designated collective-bargaining representative of the employees. 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 rescind any disciplinary actions taken pursuant to the unlawful unilaterally instituted dis- ciplinary policy in connection with the wearing of identification badges and WE WILL make whole any employee disciplined under such policy for any loss of pay or benefits, plus interest. WE WILL remove from our records and files any reference to such disciplinary actions and notify the affected employees in writing of this and that 289 NLRB No. 124 PUROLATOR PRODUCTS 987 the aforesaid unlawful discipline will not be used as a basis for future personnel actions against them. commerce within the meaning of Section 2(6) and (7) of the Act. PUROLATOR PRODUCTS, INC. AND ITS SUCCESSOR PUROLATOR PRODUCTS, INC., DIVISION OF FACET ENTER- PRISES, INC Paris Favors, Esq., for the General Counsel. Charles P. Roberts, III and James M. Miles, Esq& (Hayns- worth, Baldwin, Miles Johnson, Greaves and Edwards, P.A.), of Greenville, South Carolina, for the Respond- ent. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on 18 and 19 May 1987 at Fayetteville, North Carolina, pursuant to a consolidated complaint filed by the Regional Director for Region 11 of the National Labor Relations Board (the Board) on 30 April 1987. The complaint alleges the commission of vio- lations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act) by Respondent Purolator Products, Inc. and its successor Purolator Products, Inc., Division of Facet Enterprises, Inc. (the Respondent or the Employer) and is based on charges filed by the United Paperworkers International Union, AFL-CIO, CLC (the Union). Respondent, by its answer filed on 8 May 1987, has denied the commission of any violations of the Act. After due consideration of the evidence and testimony presented at the hearing including the demeanor of the witnesses and the briefs filed by the General Counsel and counsel for the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION-THE BUSINESS OF RESPONDENT The complaint alleges, Respondent admits, and I find that about late January 1987, Facet Enterprises, Inc. pur- chased the business of Purolator Products, Inc., located at Fayetteville, North Carolina, and since that time has been engaged in the same business operations, at the same locations, manufacturing and selling the same prod- ucts to substantially the same customers, and has as a majority of its employees individuals who were previous- ly employees of Purolator Products and that it has con- tinued the employing entity and is a successor of Purola- tor Products, Inc. Respondent is now, and has been at all times material, a Delaware corporation with a plant lo- cated at Fayetteville, North Carolina, where it is en- gaged in the manufacture and distribution of automotive air, gas, and oil filters. During the past 12 months, a rep- resentative period, Respondent received at its Fayette- ville, North Carolina plant goods and raw materials valued in excess of $50,000 directly from points outside the State of North Carolina, and Respondent is now, and has been at all times material , an employer engaged in II. THE LABOR ORGANIZATION' The complaint alleges, Respondent admits, and I find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES2 The consolidated complaint sets out several alleged violations of the Act by Respondent as follows: A. An alleged threat of plant closure in January 1986.3 B. The alleged unlawful discharge of employee Minnie Blount. C. The alleged unlawful demotion of employee Willie Lowery. D. An alleged refusal of representation requested by employee Dennis J. Roberts during an investiga- tory interview. E. The alleged unlawful unilateral imposition of a policy of discipline by Respondent in connection with its cross-training program and with the wear- ing of employee identification badges. F. The alleged unlawful withdrawal of recogni- tion of the Union by Respondent in February 1987. A. The Alleged Threat to Close the Plant Former employee Dennis J. Roberts testified that at a monthly communication meeting held on 16 January 1986 conducted by his supervisor, Wayne Wilson, he (Roberts) was asked by Wilson what he knew about unions because Roberts was from the North. Roberts tes- tified that he replied that a black employee named John Jones who had been discharged 2 or 3 days before for sleeping on the job would not have been discharged if there was a union. Roberts testified that Wilson then stated that Respondent could fire whomever it wanted. Roberts testified further on direct examination that Wilson, in response to an employee question, stated that the Union would cause the Fayetteville plant to close, and that two other Purolator plants in Rahway, New ' The Umon was certified by the Board in May 1984 following an election held in March 1980 The Respondent refused to bargain with the Umon and the Board issued a bargaining Order in November 1984 that was enforced by the Court of Appeals for the Fourth Circuit in Novem- ber 1985 Purolator Products, 270 NLRB 694, 702 (1984), enfd 121 LRRM 2120 (4th Cir. 1985) The following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Sec 9(b) of the Act: All production and maintenance employees employed at the Em- ployer's Fayetteville, North Carolina plant, including warehouse dis- tribution center employees, truck drivers, time keepers, roving in- spectors and floor inspectors assigned to the quality control depart- ment, excluding all office clerical employees, materials planners, pro- duction schedulers, laboratory technicians, print clerks, layout and gauge inspectors , receiving clerks, guards and supervisors as defined in the Act 2 The following includes a composite of the testimony of the witnesses at the hearing 3 All dates are in 1986 unless otherwise specified 988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jersey, and in Pennsylvania had closed because of high union wages. On cross-examination after review of his earlier affidavit given to the General Counsel, Roberts testified that Wilson had said "they closed Rahway be- cause the Union wages were high and [the] Fayetteville plant could do it cheaper" but that as a result of the Union coming into the Fayetteville plant, "the price- the filters would jump sky high and they wouldn't be- we wouldn't have the competition." In addition to Wilson, Roberts testified that a forklift driver named Emma and Chet Kinsey, an employee who had trans- ferred from the Respondent's Rahway, New Jersey plant were also present. Respondent called Supervisor Wayne Wilson who tes- tified that Roberts had previously worked for him at a time when Wilson was a third-shift supervisor in compo- nents, but that he (Wilson) had transferred to the second shift in September 1985. Wilson testified he did not par- ticipate in any third-shift communication meetings after his September 1985 transfer and specifically denied having participated in a third-shift communications meet- ing in January 1986. Wilson acknowledged that he had conducted a communications meeting in August 1985 during which Roberts spoke about unions saying that there were good and bad points about unions and dis- cussed a problem he had previously had with a union. Wilson's testimony concerning his transfer to the second shift was corroborated by Bobby Pate, a third-shift assist- ant supervisor (MSA), who testified that Wilson was his (Pate's) supervisor until Wilson transferred to the second shift in September and that Wison had not been in any third-shift meetings thereafter. Pate denied that he or Wilson had ever said that the Rahway, New Jersey plant had been closed as a result of the Union. Additionally, Wilson's employment records were introduced, which set out his transfer to the second shift in September 1985. Respondent also introduced the employment records of Chet Kinsey showing that he had transferred from the third to second shift in August 1985, and of Emma McLauren showing she had transferred from the third shift to first shift in August 1985 and had quit her em- ployment in September 1985. Additionally, Respondent's employee relations manager, Jim Clark, testified that he had researched the employee records of several months around the January 1986 period, but could find no record of a termination of an employee for sleeping on the job. In addition to the occurrence of the alleged January incident, the date became a matter of controversy at the hearing, and Respondent amended its answer to allege an affirmative 10(b) defense when Roberts placed the date of the meeting on 16 January 1986 in view of the filing of the charge on 16 July 1986. In an effort to bolster his testimony Roberts testifed that he had made notes of the alleged 16 January 1986 communications meeting on a calendar in his home. Roberts was a,5ked to produce the calendar and did so with the month of January missing and testified that his child had torn up the page for the month of January. Respondent also introduced the formal outlines for its monthly communications meetings for the months of August 1985 to January 1986. Only the outline topic for the month of October 1985 concerned the growth of the Fayetteville facility and the closure of other Purolator plants. Analysis My review of the demeanor and the testimony of Rob- erts, who had been discharged by Respondent, convinces me that he was not a reliable witness. At the outset his testimony was riddled with rancor and accusations against the Company and members of its management characterized by unresponsive tirades after questions were posed to him. He characterized one supervisor as the "hitman" for another referring to discipline and on another occasion in reference to an inquiry concerning a date, he launched into a completely unresponsive tirade. Moreover, I found the testimony of Roberts filled with inconsistencies as shown by his placement of individual employees at the alleged meeting of 16 January, who were clearly on another shift and in one case had termi- nated employment several months before this date. Moreover, regarding the date of 16 January placed on this meeting, which would place the meeting exactly within the 6-month 10(b) period because the charge was filed on 16 July, I found his assertion that he relied on a calendar at home and his subsequent explanation for the missing month of January to be unconvincing. I thus find that the Respondent has affirmatively shown that the alleged meeting did not occur within the 10(b) period and that this allegation should be according- ly dismissed. Assuming arguendo, that the charge was filed within the 10(b) period, I find that the General Counsel has failed to make a prima facie case, as I do not find Roberts' testimony to be credible as a result of his demeanor and inconsistencies. Assuming that a prima facie case was established, I find that Respondent has re- butted it by a preponderance of the evidence. B. The Discharge of Minnie Blount Minnie Blount was an 8-year employee who had previ- ously been assigned as one of two routine inspectors on Respondent's oil filter line and had been rated as satisfac- tory on that line. As the oil filter line became more auto- mated, only one routine inspector was required on the oil line. Blount was transferred to the air filter line and had been assigned as the routine inspector for that line for a period of 9 to 10 months before her termination. On the air filter line the filters are manufactured and baked in an oven in a mold. After they have been pulled from the oven, they are broken out of the mold by an employee designated as a "mold puller" who removes the filters from the mold and places them on the convey- or belt where they pass by the routine inspector. There is only one inspector on the air filter line, in this case Minnie Blount, on line 5. The routine inspector's job is to check for defective filters and place them aside. There are several types of defects, some of which are correcti- ble: specifically, "feathers" and "flashes" consist of extra plastisol attached to the filter, which are corrected by the inspector's by clearing them off with a metal wire. It is the job of the routine inspector to ensure that no de- fective filters go past her without being set aside and/or corrected or in the case of feathers and flashes because PUROLATOR PRODUCTS 989 the next step in the process is the packing of the filters into boxes for shipment to customers. In the event that the feathers and flashes are too many for the routine in- spector to clean while the line is moving, she is to set them aside for cleaning at a later time either by herself or by other employees who may assist her in this. She is also responsible for segregating the filters taken off the line by the type of defect and making an hourly count and total of the defects on a form utilized to keep man- agement apprised whether there is a mechanical problem contributing to a number of defective filters. Additional- ly, the Respondent utilizes a floor inspector whose job it is to select samples of filters that have already been packed into boxes for shipment, and to inspect these packed filters to ensure the integrity of the overall proc- ess that the Respondent is not shipping defective filters to its customers. The routine inspector (Blount) was as- signed to air filter line 5 and was a part of the quality control section, and reported to Supervisor Barry O'Quinn who had responsibilities throughout the entire plant. However, the line Blount worked on was under the immediate supervision of Line Supervisor James Bryant. The General Counsel's case relies on a showing of general animus by Respondent against the Union and against its employees' support of the Union, as a result of unfair labor practices found to have been committed by Respondent in early 1980 before an election campaign and the Respondent's subsequent refusal to bargain, after the results of the election until the Board's Order in 1984 as enforced by the circuit court of appeals in 1985. Fol- lowing the enforcement of the Board's Order in Novem- ber 1985, the Union requested and received information from Respondent for purposes of bargaining and the fast bargaining session was scheduled to begin on 30 January 1986. On 27 January Blount received a routine 6-month review and received a rating of "unsatisfactory" for quality of work as a result of a warning and suspension she had received in November 1986, for not cleaning her workplace as directed by Assistant Supervisor Billy Autry. She had also received a warning in November 1985. On 11 November 1985 she received a written warning signed by the supervisor, Barry O'Quinn, for poor job performance for failing to keep up with the standard line speed of 20 filters a minute causing filters to be stacked all over the mold pullers table and a consequent backup of filters on the line and off stacking filters that should have been cleaned of feathers and sent off for packing. On the warning, which was signed by Blount, O'Quinn stated, "Further incidents of this kind could result in more severe disciplinary action including termination." On 18 November 1985, Blount received another written warning and a 3-day suspension for failing to turn in a line scrap report for 2 hours. O'Quinn noted on this writ- ten warning and suspension document, which was also signed by Blount, that Blount was frequently turning in scrap reports without dates or the line number and that she had "been counseled concerning her paperwork on several occasions." In this document O'Quinn also rec- ommended that Blount be demoted. Blount had previous- ly received a written warning on 18 October 1985 for her failure on 17 October 1985 to follow the instructions of MSA Billy Autry to clean the pack section before going to another section of the operation. Blount had also received a written warning on 23 October 1985 for poor job performance for her failure on 22 October 1985 to keep up with the standard line speed of 20 filters a minute and for allowing an excessive amount of defec- tive filters to pass her inspection and be packed out re- quiring that three pallets of filters be reworked. As a result of being rated satisfactory in all other areas she received an overall rating of satisfactory on 27 Janu- ary. Blount testified that at her evaluation interview on 27 January she was told by her supervisor, O'Quinn, that she was doing a good job and that she told him of the excessive line speed of the filters coming to her for in- spection and of the excessive number of feathers and flashes, which were too numerous for her to handle, and told O'Quinn to tell the management to slow down the line. According to Blount, O'Quinn told her not to worry about it and that he (O'Quinn) had no control over the line. Blount testified further that O'Quinn re- marked that she was not wearing her union button as the other inspectors were and that she told him she had lost her button but that she was supporting the Union and that O'Quinn's face became red and he then told her to go back to work. According to Blount when she report- ed to work on 29 January the line was running exces- sively fast, and there were an inordinate amount of filters causing her to stack filters all over the place as she was unable to remove the flashes and feathers. She attempted to have O'Quinn slow down the line but he did not do so, and as a result, her workplace was stacked with de- fective filters and others continued on down the line for packing. O'Quinn told her just to worry about the "real bad" filters. When Blount returned to work the next day she was told by O'Quinn to come to the office and was terminated for poor job performance on 30 January, which was also the day that the first bargaining session was set to begin. The General Counsel contends that the Respondent's union animus is demonstrated by its past unfair labor practices, including threats of plant closure and dis- charges in 1980 and its refusal to bargain since 1984. The General Counsel further contends that Blount was rated as satisfactory overall on 27 January. It was not until Blount's support of the Union was disclosed by her to O'Quinn on 27 January that she was summarily dis- charged 3 days later by Respondent to make a point of the futility of union representation on the beginning day of negotiations after the elapse of 6 years following the election. The Respondent presents a different picture of what occurred in this case. It produced several witnesses who testified concerning Blount's performance on her job. Mike Hargis, the mold puller who worked alongside Blount, testified that he complained to management on at least two occasions concerning Blount's inability to keep up with the filters coming down the line, which he at- tributed at least in part to her constant snacking on food, which she brought in a shopping bag, and her continual 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD application of lip treatments. James Bryant, the line su- pervisor, testified that on numerous occasions Blount was unable to keep up with the line speed, which was 20 fil- ters per minute, and he was required to shut down the line as much as an hour early in order for other employ- ees to clean the filters and reinspect those that had been inspected by Blount. Bryant testified that he had re- ceived complaints from other employees including Hargis, the mold puller, who was required to stack filters all over his own work area as a result of Blount's inabil- ity to inspect the filters and from the packers who had initially pulled defective filters, but whose job was only to pack and not to inspect. The packers had complained to him that it was up to Blount to inspect the filters. Bryant had on several occasions been required to rein- spect all the filters previously inspected by Blount. Eliza- beth Carpenter, the floor inspector, also testified that Blount had an excessive amount of defective filters. Spe- cifically, she testified that on 29 January she initially in- spected one of the packed boxes of filters at the end of Blount's line and found several defective filters and told Blount about it. Blount asked Carpenter why she had brought it to her attention. Further inspection of other boxes by Carpenter at that time disclosed other defective filters. When Carpenter repeated this to Blount, Blount attempted to place the blame on Billy Autry, the assist- ant supervisor, who had cleared feathers and flashes from some of the filters placed aside by Blount. Howev- er, Carpenter noted in her memo of that evening that the defective filters she found did not bear wire scratches in- dicating that they had not been cleaned at all, as the wire used to clean the filters leaves scratch marks. John Wil- liam (Billy) Autry also testified that he had been required on a number of occasions to reinspect whole pallets of filters inspected by Blount. Carpenter rejected several pallets of filters inspected by Blount on the evening of 29 January and Bryant and Autry reinspected them finding numerous defective filters. Pursuant to this Bryant wrote a lengthy memorandum concerning Blount's deficiencies as an inspector and summarizing that the Company had been very lucky to date in servicing its customers given her inadequacies as an inspector. It was thus determined by O'Quinn and other members of management to termi- nate Blount. Personnel Supervisors James Knox and Donna Ogg both testified that Blount had been offered a demotion to another job in the past in view of her prob- lems as an inspector but declined to take a demotion. Blount denied that she had been offered a demotion but this was refuted by the notation of this recommendation on the written warning issued to her in November by O'Quinn as well as by the testimony of Knox and Ogg, which testimony I credit. At the time of the hearing O'Qumn was no longer employed by Respondent and was not called to testify. I find that the General Counsel has failed to make a prima facie case of a violation of Section 8(a)(3) of the Act by Respondent's discharge of Blount. Initially, the unfair labor practices referred to by the General Counsel are remote in time, and the discrimination and threats oc- curred 6 years before Blount's termination. Moreover, Blount's participation in union activities by her own ac- count by the wearing of a button at time when the Re- spondent had already begun to prepare to bargain with the Union, pursuant to the Board and court Order were slight and no different from other inspectors who also wore buttons. As Respondent points out in its brief, there is no indication in the record that Blount was aggressive in her support of the Union or regarded as a threat by Respondent. Burlington Industries, 257 NLRB 712, 727- 728 (1981); New York Delicatessen, 275 NLRB 959, 966 (1985). I thus find that the General Counsel has proven no more than a suspicion of an unlawful termination, by reason of the timing of Blount's discharge shortly after her disclosure of support for the Union and on the eve of the commencement of bargaining, but has failed to prove that her union activities were a motivating factor in her discharge by Respondent. Assuming arguendo that the General Counsel has made a prima facie case of an 8(a)(3) violation of the Act by the Respondent's discharge of Blount, I find that Re- spondent has fully rebutted it by the preponderance of the evidence, which I find overwhelmingly demonstrated that Blount's inadequate job performance was the reason for her discharge. I credit each of Respondent's wit- nesses as supported by documentation in this regard and find that Blount would have been discharged even in the absence of her engagement in concerted union activities. Wright Line, 251 NLRB 1083 (1981), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); Roure Bertrand Dupont, 271 NLRB 443 (1984); and NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). C. The Demotion of Willie Lowery Lowery is a long-term employee who had been em- ployed as a maintenance mechanic by Respondent for its manufacturing lines. In December 1976 Lowery's trou- sers became entangled in moving machinery, and he sus- tained severe damage to his knee . In the intervening years he has had seven knee operations and has been told his knee will steadily deteriorate and will eventually have to be rebuilt. During the years he has also sustained a number of other accidents entailing lost time. As a result of his various injuries he has been absent from work 27 percent of the time since his initial injury in 1976, and in 1986 had missed work 17 percent of the time from the beginning of the year until 30 March when he was demoted. Lowery was named as a member of the bargaining committee on behalf of the Union in Decem- ber 1985 and has long been known as an active union supporter. In early 1986 Lowery's leg gave out on him and he reinjured himself. The General Counsel contends that Lowery's demo- tion by Respondent was a result of his support for the Union contending that his absences were not occasioned by other than legitimate work injuries and that he had been highly rated as a mechanic in the past. The Respondent called Roy Wilson Jr., Lowery's su- pervisor, who testified that he had repeatedly urged that Lowery be replaced by another mechanic because of his absences from the job making Wilson short handed for mechanics, given his limited budgeted number of me- chanics and requiring other employees to cover Low- ery's responsibilities necessitating overtime and leading PUROLATOR PRODUCTS 991 to employee complaints. Additionally Human Resources Director Jim Clark testified that in response to the com- plaints made to him by Lowery's supervisor, Wilson, he reviewed all of Lowery's attendance records and deter- mined that he had been absent 27 percent of the time since his original knee injury , 17 percent of the time in 1987 and, only recently, Lowery's knee had given out for no apparent reason, Clark determined that Lowery should be demoted in order to cover the mechanic's re- sponsibilities adequately and to ensure for Lowery's safety that Lowery not engage in this type of work, which requires climbing scaffolds, working on moving line machinery, crawling in and around it, and bending and stooping. I credit the testimony of Wilson and Clark. Respondent presented evidence of prior instances where other employees were discharged or demoted as a result of physical conditions precluding their regular attend- ance and/or their ability to perform the full range of their duties. I find the General Counsel has failed to make a prima facie case of a violation of the Act by Respondent's de- motion of Lowery. I find no relationship between Low- ery's concerted activity and his demotion has been estab- lished . Rather, I find that the evidence presented by the parties discloses only that Lowery was demoted for sound business reasons concerning his inability to be available for work as a mechanic , and Respondent's le- gitimate concern for his safety and that of others. I ob- served Lowery and he appeared to me to be rather frail and unsteady on his feet. I find that his demotion to a sitting job was not the result of discrimination but was consistent with Respondent's past practice of demoting or discharging employees who are unable to be available for work or to perform the full range of duties of their job. I note also that Lowery was told there are other jobs that he may bid on but has declined to do so. I thus find, assuming arguendo, that the General Counsel proved a prima facie case, that it has been rebutted by Respondent by a preponderance of the evidence . Wright Line; Roure Bertrand Dupont; and NLRB v. Transporta- tion Management Corp., supra. D. The Alleged Denial of Representation to Dennis Roberts Former employee Dennis Roberts testified that on 24 April 1986 he was working on his machine along with his coworker Marie Tyner and that his supervisor, Robert Tomek, failed to arrive at 5 a .m. to relieve Tyner and Roberts for their break . Roberts had a restroom emergency and left the machine telling Tyner that she could run the machine by herself. When he returned the machine was shut down and Tyner told him that he was "in trouble" and that Tomek wanted to see him at 7 a.m. (after the end of the shift). Roberts testified that before going to see Tomek , he stopped by and saw union bar- gaining committee head Lee Kirkland who told him to ask for union representation . Roberts testified that when he arrived at Tomek's office, two other supervisors, Tony Martin and Terry Alright , were also in the office and heard what transpired . Roberts told Tomek he wanted union representation and Tomek told him "you're not going to get it" and then asked him (Rob- erts) why he had shut the machine off. Roberts replied that Tyner had shut the machine off whereupon Tomek said, "We'll see about this," and, according to the testi- mony of Roberts, "stormed" out to see Tyner. Roberts watched Tomek talking to Tyner briefly and then left and went home. About 10 a.m. Roberts was awakened by his wife, who told him the Company (Personnel Ad- ministrator James Knox) wanted him to come to the office because he was being terminated . On his arrival Roberts was told he was being terminated for placing bad wire on the machine . Tomek testified that the rest- room incident had occurred on 20 April, the night before the termination incident, and that when he (Tomek) had seen Tyner standing by the machine that had been shut off, Tomek inquired where Roberts was and why the machine had been turned off because he was not substan- tially late to relieve them . Tomek testified Tyner told him that Roberts had to go to the restroom and that he (Tomek) then did nothing more about it because he per- ceived this to be an essential reason for leaving which the employer must accept even if it means lost produc- tivity. Tomek denied that he had any discussion of the restroom incident with Roberts or any meeting in his office where Roberts requested union representation or he (Tomek) made any inquiry of Roberts concerning the matter. Tomek's testimony was corroborated in part by Supervisor Tony Martin who denied that he was present at a meeting between Tomek and Roberts. Tomek further testified that the following night he or- dered Roberts to replace a damaged blade on his ma- chine and that Roberts did not follow his previous in- structions about how to replace the blade and that it was consequently shattered when the machine was started. Tomek testified that this had happened previously and he therefore said nothing to Roberts but went up to his office and prepared a suspension recommendation for Roberts based on his job performance . At shift change Tomek presented the recommendation to Supervisor George Hyde who told Tomek that this was the second incident for Roberts who had been suspended previously for poor performance and that this would accordingly mean Roberts should be terminated. Tomek and Hyde then reviewed this with Personnel Administrator Knox because all terminations must be reviewed by personnel before implementation, and it was agreed that Roberts should be terminated, whereupon Knox placed the call to Roberts' home because Roberts had left at 7 a.m. Knox and Tomek testified that when Roberts arrived he requested union representation but was told by Knox that he was not entitled to it because Respondent was in- forming him of a decision , which had already been made, to discharge him. Hyde testified that the restroom inci- dent was considered in making the termination decision, although no mention of it appears in the termination notice. The General Counsel contends that a violation should be found in the restroom incident, by the crediting of Roberts' testimony and also in the termination interview because there was some discussion of the reasons for ter- mination . Respondent contends that Roberts' testimony 992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD should not be credited and that the termination incident was not an investigatory meeting. It is well settled that in a union setting, employees who are called to participate in an investigatory inter- view where they have reasonable cause to believe they may be subject to discipline are entitled to union repre- sentation on their request. See NLRB v. J. Weingarten, 420 U.S. 251 (1975). However, no such representation is afforded employees if they are merely being informed of a decision that has already been made Lucky Stores, 275 NLRB 1438, 1441 (1985). I credit the testimony of Roberts concerning his re- quest for representation made of Tomek on his entering the office and that Tomek refused this request. Although I have previously discredited Roberts as an unreliable witness, I find his testimony in this instance to be specific and credible, particularly in view of Supervisor Hyde's testimony that the restroom incident was considered in making the decision to terminate Roberts. I find it likely that Roberts shouted to Tomek (as he did on the stand) that he wanted union representation and that Tomek in a kneejerk reaction denied him representation and then asked Roberts why he had shut down the machine. I thus find that Respondent violated Section 8(a)(1) of the Act by the refusal of Assistant Supervisor Tomek to honor Roberts' request for union representation during an investigatory interview, which Roberts had reasona- ble cause to believe could lead to disciplinary action against him. Regarding the termination incident, I note as pointed out by Respondent that this was not originally alleged as a violation in the complaint. I also find that this was not an investigatory interview that would entitle Roberts to union representation and thus, Respondent's refusal to grant such representation was not violative of the Act. E. The Alleged Unilateral Imposition of Discipline in August 1986 by Respondent in Connection with Cross- Training and the Wearing of Identification Badges It is undisputed that Respondent has long had a cross- training program requiring employees to train on other jobs and that it has required the wearing of identification badges. However, the General Counsel contends that in August 1986 it initiated a program of discipline in con- nection with each of these two matters, and did so uni- laterally without first bargaining these changes with the Union. The record, however, contains no testimony or evidence that the Respondent initiated a disciplinary pro- gram in connection with cross-training in August 1986, except for the testimony of employee Margie Owens who stated that she willingly engaged in cross-training and worked in other areas and that employees just did it. Owens testified further that she had been wearing her ID badge, "[m]aybe, not quite a year. I don't know," and she had been told by her supervisor that if she did not have her badge she would "be wrote up" or "[w]e would get points," but that "it wouldn't go in your files," and that "[h]e just explained that it's best, you know, safer that we wore them." Additionally the Gen- eral Counsel called Jim Clark, Respondent's director of human resources, who testified that there was a series of communications concerning the wearing of identification badges, that some written material was distributed to the supervisors concerning a procedure initiated by the loss prevention council, a safety-related committee, to offer better security within the facility but that he did not be- lieve it was announced verbally. Clark testified that he believed that the standard disciplinary procedure pro- gram of counseling, written warning, suspension, and dis- charge referring to Respondent's rules for failure to wear safety equipment was utilized in wearing ID badges. Clark testified further that there was no announcement in August concerning discipline in connection with the cross-training program and that employees who fail to perform have always been subject to discipline and that the announcement of discipline for failure to engage in cross-training had been made to employees before August and before his own employment with Respond- ent, which dates back to December 1985. In September 1987 the Local leadership of the Union filed a charge with the NLRB based on these alleged unilateral changes. At a negotiating meeting in October and on four subsequent occasions, Respondent offered to bargain concerning these matters and to delete them if necessary, but the Union refused to discuss them, instead relying on its unfair labor practice charge to resolve them. I find that the evidence submitted by the General Counsel is insufficient to prove that the Respondent initi- ated a change in August 1987, by the imposition of disci- pline in accordance with cross-training. There was no direct testimony about how such a change was imple- mented or by whom it was implemented, nor was there any indirect evidence of such change. The testimony of Clark supports a fording that a disciplinary program was instituted in the August timeframe in connection with the wearing of identification badges. Additionally, the testi- mony of Owens shows that the employees were in- formed of some form of discipline in this program. I ford that the General Counsel has thus established a prima facie case of a violation of Section 8(a)(5) and (1) of the Act by the unilateral implementation of a disciplinary procedure in wearing identification badges. I find that the Respondent has failed to rebut this prima facie case by the preponderance of the evidence because it is clear that such discipline was not covered by its safety regula- tions about wearing protective clothing and equipment. I also do not find that the violation is a mere technical violation as argued by Respondent. Nor do I ford that the violation was remedied by the Respondent's offer to withdraw the disciplinary procedure in the wearing of identification badges. F. The Withdrawal of Recognition It is undisputed that in December 1986 the employees circulated a petition signed by 434 out of a bargaining unit of 761 employees declaring that the employees no longer wished to be represented by the Union and that the Respondent withdrew recognition from the Union in February 1987, assertedly on the basis of a good-faith doubt based on objective considerations. There is no alle- gation that the Respondent engaged in surface bargaining nor was there any evidence of supervisory taint of the petition. The General Counsel, however, alleges that the PUROLATOR PRODUCTS 993 Respondent violated Section 8(a)(5) and (1) of the Act by its withdrawal of recognition because the petition was not circulated in an atmosphere free of unfair labor prac- tices, relying on all the allegations discussed above. I find, however, that in view of my finding of only the two violations of the Act by Respondent, as set forth above, this allegation of the complaint should also be dis- missed because I find that these violations were not suffi- cient to significantly contribute to the loss of majority. One violation occurred in April, another in August, 8 and 4 months, respectively, before the circulation of the petition in December and was remote in time. Moreover, in the overall context of the relationship of the parties, I do not deem these violations to have been significant enough to have caused the loss of majority particularly in view of Respondent's five offers to the Union to bar- gain concerning the unilateral change, all of which were rejected by the Union and the denial of union representa- tion to a single employee by a low-level supervisor. I find that the recent case of Johns-Manville Sales Corp., 282 NLRB 182, 183 (1986), is controlling because in that case the Board found that the employer had violated Section 8(a)(5) and (1) of the Act by unilaterally chang- ing its layoff policy and unlawfully laying off three em- ployees for 12 weeks. In that case the Board stated: [W]e do not view that Respondent's July violation as having been of such a character so as to preclude the Respondent from asserting a good-faith doubt of the Union's majority status some 8 months later in March 1983. As we do not view lightly the Re- spondent's unlawful unilateral change in July, we do note that this conduct directly affected only three employees who may otherwise have remained working during the layoff absent the Respondent's unlawful unilateral action. Furthermore, the Re- spondent advanced a reasonable business justifica- tion for wishing to retain the junior maintenance employees during the period of the layoff. More- over, the Respondent continued to meet and bar- gain with the Union for almost 8 months thereafter. In these circumstances, we cannot conclude that the Respondent's unlawful conduct in July caused the massive disaffection from the Union evident in the employee petition or that it had such a lingering effect so as to taint the Respondent's reliance on that petition as the basis for a good-faith doubt of the Union's majority status. I thus find that the Respondent did not violate the Act by its withdrawal of recognition from the Union in Feb- ruary 1986. CONCLUSIONS OF LAW 1. The Respondent, Purolator Products, Inc. and its successor Purolator Products, Inc., Division of Facet Enterprises, Inc., is an employer within the meaning of Section 2(6) and (7) of the Act. 2. United Paperworkers International Union, AFL- CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not violate the Act by reason of its termination of Minnie Blount or its demotion of Willie Lowery. 4. The Respondent did not violate the Act by its al- leged threat of plant closure. 5. The Respondent violated the Act by denying Dennis Roberts union represenation during an investiga- tory interview concerning his shutdown of a machine but no violation occurred concerning the discharge meeting. 6. The Respondent violated the Act by its unilateral imposition of a disciplinary procedure concerning the wearing of employee identification badges, but did not violate the Act concerning disciplinary procedure re- garding its cross-training. 7. The Respondent did not violate the Act by its with- drawal of recognition from the Union in February 1987, based on objective considerations of a lack of majority of employees' support. 8. The above unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY The Respondent shall be ordered to cease and desist from engaging in any violation of the Act and to remedy its unfair labor practice by withdrawing the disciplinary procedure in connection with the wearing of identifica- tion badges with the employees and to rescind any disci- pline it may have subsequently imposed on its employees pursuant to the policy and make them whole for any losses incurred as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1980), with interest as calculated in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987). See gen- erally Isis Plumbing Co., 134 NLRB 716 (1962), and to post the appropriate notice. In view of my finding that the Respondent did not violate Section 8(a)(5) and (1) of the Act by its withdrawal of recognition from the Union, I am not including a bargaining order in the recommend- ed remedy. I also do not find that the General Counsel has demonstrated the necessity for a visitatorial clause. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Purolator Products, Inc. and its suc- cessor Purolator Products, Inc., Division of Facet Enter- prises, Inc., Fayetteville, North Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Denying employees union representation on their request during investigatory interviews. (b) Unilaterally imposing a disciplinary procedure on its employees concerning the wearing of employee iden- tification badges without first having bargained and 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reached agreement with the employees collective-bar- gaining representative. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind any disciplinary actions taken pursuant to the unlawful unilaterally instituted disciplinary policy in connection with the wearing of identification badges and make whole any employee disciplined under such policy for any loss of pay or benefits, with interest in the manner set out in the remedy section of this decision for any loss they may have incurred as a result thereof. (b) Remove from their files, and ask the Employer to remove from the Employer's files, any reference to the unlawful discharges and notify the employees in writing that it has done so and that it will not use the discharges against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports , and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Fayetteville, North Carolina facility copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges unfair labor practices not specifically found. 6 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 Bohrd."