Nkc Of America, Inc

NKC OF AMERICA 683 NKC of America, Inc and Lucious Davenport Case 26-CA-12087 November 14 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 19 1988 Administrative Law Judge William N Cates issued the attached decision The Respondent filed exceptions and a supporting bnef and the General Counsel filed a motion to strike portions of the Respondents bnef i 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 2 and conclusions and to adopt the recommended Order In his decision the judge found that the General Counsel had established her prima facie case and that the Respondent had not carried its Wright Line3 burden The judge concluded therefore that Davenport s discharge was in violation of Section 8(a)(3) We agree that Davenport s discharge was unlawful and note that the judge s analysis not only points out that the Respondent failed to carry its Wright Line burden but also shows that the Re spondent never relied on its asserted reasons for the discharge 4 In this regard we reiterate the judge s finding that Davenport was treated differ ently from the outset of the investigation into the punching incident i We deny the General Counsels motion to strike portions of the Re spondent s brief but in doing so emphasize that in deciding this case we have not considered any evidence that was not part of the record 2 The Respondent has excepted to some of the judge s credibility find mgs 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 ini,orrect 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 3 Wright Line 251 NLRB 1083 ( 1980) enfd on other grounds 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) 4 Although the judge correctly characterized the Respondents burden under Wright Line he concluded his Wright Line analysis by stating that the Respondent had not rebutted the General Counsel s prima facie case Of course a respondent can defend an 8(a)(3) charge by rebutting the General Counsel s prima facie case-i e by showing the alleged discn minatee s protected activity played no part in its allegedly discriminatory activity-but the Wright Line defense is not meant to serve that purpose Instead it is an attempt to establish that a respondent would have taken the same action regardless of any protected activity engaged in by the alleged discnminatee (See NLRB v Transportation Management Corp 462 U S 393 400-401 (1983)) In any event the evidence here shows net ther that the Respondent rebutted the General Counsel s prima facie case nor that it would have taken the same action in the absence of Daven port s union activity Member Johanson agrees with this conclusion and therefore finds it unnecessary to address the analysis of Wright Line The credited testimony shows that Davenport (the prounion employee) punched Slaughter (the antiunion employee) after Slaughter had orally abused Davenport his group leader and had drawn his fist back as if to hit Davenport Subse quently only Davenport was suspended (and later discharged) despite his explanation that he hit Slaughter in self defense after Slaughter drew back to hit him 5 The Respondent never confronted Slaughter with Davenport s version of the incident and did not even interview Slaughter in connection with the investigation until after Davenport s sus pension 6 Further the only other employee (as op posed to a supervisor) interviewed during the in vestigation Patrick Thompson also contradicted Slaughters version of the incident 7 That the investigation was not seriously intended to detect the circumstances surrounding the inci dent but instead was carried out solely for the pur pose of providing a basis for discharging Daven port is evidenced further by the Respondent s focus on a brief reference in Davenport s Decem ber 1986 evaluation (stating that Davenport had a slight temper problem ) while ignoring his more recent March 1987 evaluation that made no men tion of any such problem The Respondent relied on this brief statement without talking to the eval uator who made it The evaluator (Leadperson Ste phens) testified that all the employees had problems getting along from time to time and that even he had a temper problem Stephens explained that tempers flared up because of the heat hard work and pressure to get things done in a hurry He also stated that Davenport got along well with his men In focusing on the brief notation in the December 1986 evaluation the Respondent also ignored the good rating (the Respondents second highest) given to Davenport in both the 1986 and 1987 evaluations Stephens reinforced this evaluation of Davenports work in his testimony Additionally the Respondents efforts to learn the reasons behind Davenport s February 3 1987 court appearance 5 Thus contrary to the Respondents contention this case is distinguish able from A & E Stores 272 NLRB 737 (1984) There the Board affirmed the judge s dismissal of an 8(a)(3) violation in which it had been clearly established that the alleged discnminatee had started the altercation that resulted in her dismissal See A & E Stores 272 NLRB at 758 6 Slaughter however was asked what happened when he went to General Foreman Zirkle s office shortly after the incident to report it He told the Respondents representatives present that one of the reasons Davenport hit him was that Slaughter was against the Union and Daven port was for it He left almost immediately to go to the doctor however and the Respondent did not talk to him further until he returned later in the day to pick up his paycheck By then Davenport had been suspended 7 According to Personnel Manager Flake s testimony Thompson had stated he did not see what happened because he had turned to walk away Flake acknowledged however that Thompson contradicted Slaughters version of the incident by stating that he could hear Slaugh ter mouthing off at Davenport 291 NLRB No 105 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pertaining to a matter unrelated to the punching in cident in question while failing to even inquire about the reason or reasons for Slaughters court appearances in the past underscores the Respond ent s singular reason for conducting its investiga tion -i e to find a justification for Davenport s discharge 8 Finally an analysis of the Respondent s remain ing claims-that by discharging Davenport it merely was enforcing its prohibition against fight ing that as a group leader Davenport was held to a higher standard of conduct than production em ployees and that the severity of Slaughters injury justified the discharge-serves only to reinforce our finding that the Respondent was looking for ways to justify Davenport s discharge First as the judge found the Respondent had a rule prohibiting fighting on its premises in effect since 1984 but had not discharged any of the employees involved in three prior fighting incidents 9 Second it had never informed Davenport that he was being held to a higher standard of conduct than other employ ees Finally with respect to the seventy of the injury we note that the physician Slaughter visited after the incident released him to return to work immediately 10 In sum close scrutiny of all the circumstances establishes that the Respondent did not carry its Wright Line burden The Respondent did not actu ally rely on its asserted reasons for discharging Davenport Accordingly we agree with the judge that the Respondent violated Section 8(a)(3) in discharging Davenport I' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent NKC of America Inc Memphis Tennessee its officers 8 Like the judge we find suspect the Respondent s claim that although it went through Slaughters files in connection with its investigation of the incident it did not see the notices regarding Slaughters court appear ances 8 Even if we assume as the Respondent contends that this incident was the first since it had published the rule against fighting and that the enforcement of the rule here was an attempt to clarify any confusion over its applicability the Respondents insincere attempt to determine who was at fault for the incident indicates to us that the asserted reason for Davenport s discharge was not the actual reason (See A & E Stores supra at 757 ) 10 In noting this evidence respecting the seventy of the injury we net ther seek to minimize the pain Slaughter may have suffered nor to sug gest that an employer could not lawfully enforce a policy of discharging even those employees who cause slight physical injury to other employ ees during fights This evidence however has a clear bearing on the Re spondent s attempt to justify treating Davenport differently from other employees engaged in on the job fights in the past i i Based on our conclusion here we find no merit to the Respondent s claim that Davenport is not entitled to reinstatement because of his alleg edly egregious conduct agents successors and assigns shall take the action set forth in the Order Melvin Ford Esq for the General Counsel Lucious Davenport pro se Edward Young and Daniel Jones Esq (Young & Perl PC) Memphis Tennessee for the Company DECISION STATEMENT OF THE CASE WILLIAM N CATES Administrative Law Judge This case was heard in Memphis Tennessee on 1 2 and 5 October 1987 1 The charge was filed on 21 April by Lu cious Davenport an individual (Davenport) The coin plaint which was issued on 29 May and amended at trial alleges that NKC of America Inc (Company) un lawfully interrogated Davenport asked for his assistance in an effort to have employees repudiate the Union by forming an employee committee informed him he was being disciplined because of the Union and discharged him in violation of Section 8(a)(1) and (3) of the Act The Company answered admitting many background and jurisdictional contentions made in the complaint to in clude the fact Davenport was discharged but it denied his discharge was unlawful or that it had committed any violations of the Act All parties were given full opportunity to participate introduce relevant evidence to examine and cross exam inc witnesses to argue orally and to file briefs Briefs filed by the Company and Counsel for the General Counsel have been carefully considered I conclude below after examining the relevant evi dence and applicable legal principles that the Company violated the Act substantially as alleged in the complaint FINDINGS OF FACT I JURISDICTION The Company which maintains an office and place of business in Memphis Tennessee is engaged in the manu facture of conveyor systems During the calendar year preceding the issuance of the complaint a representative period the Company in the course and conduct of its business operations sold and shipped from its facility products goods and materials valued in excess of $50 000 directly to points outside the State of Tennessee During that same time period the Company purchased and re ceived at its Memphis Tennessee facility products goods and materials valued in excess of $50 000 directly from points outside the State of Tennessee The parties admit and I find the Company is and at all times material has been an employer engaged in commerce and in a busi ness affecting commerce within the meaning of Section 2(2) (6) and (7) of the Act II LABOR ORGANIZATION Shopmen s Local Union No 813 of the International Association of Bridge Structural and Ornamental Iron i All dates are in 1987 unless otherwise indicated I. NKC OF AMERICA 685 Workers AFL-CIO is and at all times material has been a labor organization within the meaning of Section 2(5) of the Act III ALLEGED UNFAIR LABOR PRACTICES A Background The Company is a Japanese corporation that began its Tennessee operations in 1984 with a small sales force based at Memphis Tennessee It thereafter commenced to operate a small fabrication shop in Memphis and has grown at that location since 1984 into a fabrication oper ation that employs approximately 110 to 115 hourly2 and 40 salaried employees The Company manufactures and installs conveyor systems primarily for the automotive manufacturing industry The Company is managed in part by the following admitted supervisors and agents Vice President Tadan on Imamura (Imamura) Vice President of Operations Harold Riling (Riling) Plant Manager Yokoyama 3 As sistant Plant Manager John Smittle (Smittle) Personnel Manager Randy Flake (Flake) General Foreman Robert Zirkle (Zirkle) and Leadperson Robert Stephens (Ste phens) In 1987 the Union began a successful organizing cam paign at the Company The Company became aware of the Union s campaign on 8 April when employee Rick Cossy (Cossy) told Assistant Plant Manager Smittle that employees were distributing and signing union authonza tion cards Smittle informed Personnel Manager Flake of the Unions activity at that time 4 On 22 April the Union in Case 26-RC-6939 filed a petition for an elec tion among the Company s production and maintenance employees On 22 June the Union was certified as the ex clusive collective bargaining representative for the pro duction maintenance and plant clerial employees of the Company B The Events of 16 April It is alleged at paragraph 7 of the complaint that the Company about 16 April acting through General Fore man Zirkle solicited an employee to assist in an effort to have employees repudiate the Union by forming an em ployee committee and interrogated an employee about the employees union membership activities and sympa thies It is undisputed that General Foreman Zirkle asked Davenport on 16 April to form a committee of employ ees to meet with management so the committee could do what a union would with respect to wages and other working conditions because the Company did not need a union Davenport credibly5 testified he told Zirkle that 2 The job classifications for the hourly employees include fitters weld ers machinists painters saw operators shipping and receiving employ ees toolroom personnel and helpers 3 Mr Yokoyama is not further identified in the record 4 One of the Company s supervisors was at that time distributing signa ture cards for the Union The supervisor was asked by the Company not to do so and thereafter ceased his union activities 5 Davenport and Zirkle did not differ significantly in their testimony regarding what was said on 16 April However at any point where their testimony did conflict I have credited Davenport s account of the meet ing Davenport s courtroom demeanor was excellent and Zirkle did not maybe they did not need a union but they needed some thing 6 According to Davenport Zirkle then asked if he was for the Union Davenport told Zirkle he was for anything that would get him more money 7 Davenport said the conversation ended with his telling Zirkle he would not form a committee to deal with the Company because he did not think it would do any good 8 The issue is whether Zirkle s comments as found above violated the Act I am persuaded they did First Zirkle did not ask Davenport about the Union in isola tion He did so in the context of seeking to have Daven port assist the Company in defeating the Union by form ing an employee committee that would serve the purpose of and function as a union Zirkle s inquiry into Daven port s union sympathies and his solicitation of assistance from Davenport came in the context of Zirkle s state ment that the Company did not need a union Further there is no showing on this record that at the time Zirkle questioned Davenport Davenport had demonstrated his support for or against the Union Zirkle acknowledged he was sincere in his request and stated it was his hope Davenport would assist him in repudiating the Union at the Company The totality of the circumstances reflect the coerciveness of Zirkle s comments Accordingly I find the Company through Zirkle violated the Act as al leged at paragraph 7 of the complaint C 17 April Discharge of Davenport Davenport commenced work as an A fitter at the Company in April 1986 In early 1987 he was made a group leaders and worked under the supervision of Leadperson Stephens During Davenports year of em ployment Stephens prepared two written employee per formance evaluations of him The first evaluation was on 4 December 1986 and the second was on 13 March In both evaluations Stephens rated Davenport a good employee 10 Stephens wrote in his first evaluation of Davenport Lucious is a very competent fitter he stays busy keeps [the] men under [him] busy he can deal with most any problem with supervision His only weakness is a slight temper problem [G C Exh 5 ] On the first evaluation General Foreman Zirkle wrote that Daven port was capable of higher classifications Stephens did not make any written comments on his March evaluation of Davenport In his trial testimony Stephens summa specifically deny what Davenport attributed to him Additionally Zirkle acknowledged his memory was poor with respect to the particulars of the meeting 5 Zirkle remembered the conversation as Davenport saying he did not particularly care about the Union Zirkle could not remember whether he asked Davenport if he was for the Union or not but he said he did not think he asked him 8 Zirkle did not recall whether Davenport said he would or would not form a committee 9 Group leader positions are nonsupervisory Personnel Manager Flake testified the group leaders are made up of employees that are very knowledgeable skilled employees that can direct the work of lesser skilled employees Group leaders are expected to understand the whole job be able to read drawings check measurements and get parts together for any job 0 There were five rating categories on the December evaluation namely unsatisfactory fair satisfactory good and excellent The March evaluation contained four categories namely must improve acceptable good and excellent 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rized Davenport s performance as that of an employee who was a good worker and class A fitter who worked well with his men Davenport learned from fellow workers of the Union s organizing campaign at the Company at approximately the same time (8 or 9 April) the Company did On learn ing of the Union Davenport signed a union card and spoke with other employees about the Union 11 General Foreman Zirkle s conversation with Davenport about the Union which took place on 16 April has been set forth elsewhere in this decision Personnel Manager Flake tes tified the Company began planning on 16 April to show small groups of employees a video it had obtained from legal counsel about signing union cards and what that entails The Company actually began showing em ployee groups the video during the morning hours of 17 April Randy Slaughter was one of the employees at tending an early morning showing of the video on 17 April After viewing the Company s video Slaughter re turned to his work area12 where Davenport and employ ee Patrick Thompson (Thompson) were Some of what was said and took place after Slaughter returned to the work area is in dispute Davenport testified he and Thompson were standing at one end of the jig that supported the conveyor being built at that time Davenport stated they were discussing a blueprint when he first noticed Slaughter had returned to the work area Davenport said he told Slaughter to go to work According to Davenport Slaughter responded he wasn t going to do shit Davenport said he then told Slaughter Well I don t care what you do really just go down there and act like you re working Daven port testified Slaughter responded You can t make me go to work You can t make me do a mother fucking thing Davenport told Slaughter he was not trying to make him do anything for him to just go and act like he was working Davenport stated Slaughter told him 111 kick your ass Davenport told Slaughter he was not going to do any such thing and again advised Slaughter to go to work According to Davenport Slaughter said I 11 kick your mother fucking ass and at the same time drew back in what Davenport believed was preperation by Slaughter to hit him Davenport said that when Slaughter drew back he hit Slaughter one time in the face 13 Davenport stated Slaughter held his face which was bleeding so he told Slaughter to go to the office and obtain treatment 14 Slaughter testified he had worked for the Company approximately 1 1/2 years at the time of the incident and had worked with Davenport for approximately 2 weeks 11 Employee Slaughter for example testified Davenport asked him to sign a union card 12 Slaughter had worked earlier that morning on the same but opposite end of the jig that Davenport was working on 8 Davenport stated they were about 1 1/2 to 2 feet apart when he hit Slaughter 14 Thompson a current employee who said he did not support the Union corroborated Davenport s testimony in all essential aspects I note that Thompson s description of the language of the billingsgate that was used differed slightly from that testified to by Davenport However I do not find that to detract from Davenport s or Thompson s overall credibil ity to a month at that time 15 Slaughter first testified about the events that lead to Davenports hitting him as fol lows Okay At first we went to see a film about a [u]nion and after the film was over I come back out and went back out to the jig where he was and I asked him Is you ready to go to work and he said I don t want to talk to you or something of that nature-I don t remember exactly how he said it-so I said Okay all right and I was a fixing to get my tools and stuff and go and that s when he hit me as I was getting ready to reach for my tools I guess When asked if obscenities were exchanged Slaughter tes tified I just asked him was he ready to go to work and he said something like I don t want to work with you because you re eating cheese or something of that nature When pressed further Slaughter testified Davenport said I don t want to work with you fuckin cheese eater or something of that nature 16 Slaughter thereafter de scribed his encounter with Davenport as follows At the time I got back to the work area I asked him Are you ready to go back to work? He said Fuck I don t want to work with you you cheese eater and well all I could say was Okay all right That was it and baam he hit me and I guess I leaned back and he come over on the other side of the jig and kind of bent down and I asked him why did he hit me and he said Fuck go on to the office and that s-that s what I did I went on and told Bob about what had happened On cross examination Slaughter said Davenport told him he did not want to work with him because Slaughter had been going to personnel telling them what had been taking place out in the shop Slaughter asserted on direct examination that Daven port had to leap over the jig in order to hit him be cause there am t no way in the world [he] could [have] walk[ed] over it and hit me 17 Slaughter acknowledged Thompson was standing at the back of the jig talking with Davenport when he re turned to the work area but he contends Thompson had started to walk away at the time Davenport hit him It is necessary to determine what was said and took place after Slaughter returned to the work area from viewing the Company s video on 17 April In so doing I 15 Slaughter testified he had not known Davenport socially prior to the time of the incident but he added Davenport was supposed to have arranged a double date or something like that for them on the night of 17 April Slaughter stated their planned outside activities had nothing to do with the figh as far as he knew 16 On cross examination Slaughter testified Davenport said Cheese eating ass I don t want to work with you 17 Slaughter acknowledged on cross examination that he did not see Davenport hit him and he admitted he did not know how Davenport got to the point where he hit him I NKC OF AMERICA note Davenport appeared generally candid and im pressed me as attempting to testify truthfully I am how ever not unmindful of his interest in the outcome of this case Nonetheless I found him to be a believable witness and as such I credit his account of his encounter with Slaughter Furthermore Davenport s account of the inci dent was corroborated by Thompson On the other hand Slaughters answers were not susceptible of belief Each time he was asked about the encounter with Davenport he expanded his answer He was confused among other things about where he and Davenport were positioned at the time Davenport hit him Slaughters confusion re garding what Davenport said just prior to Davenport s hitting him did not appear to have been honest confusion and as such cast doubt on his overall veracity 18 Slaughter went to General Foreman Zirkle s office after Davenport hit him At some point thereafter Vice President of Operations Riling Assistant Plant Manager Smittle and Personnel Manager Flake joined Slaughter and Zirkle in Zirkle s office Zirkle asked Slaughter what had happened Slaughter told him Davenport had hit him but he did not know why Personnel Manager Flake testified Slaughter thereafter said It s about this union 19 Assistant Plant Manager Smittle testified it was decided Slaughter should see a doctor Vice President of Operations Riling testified he direct ed General Foreman Zirkle to bung Davenport to the office According to Davenport Zirkle told him they wanted to see him in the office but did not say anything to him enroute to the office 20 When they arrived at the office where the others (Riling Smittle and Flake) were Zirkle asked Davenport what had happened Davenport told those present that he and Slaughter had gotten into an argument that included cursing He told them he had continually told Slaughter to go back to work until Slaugther drawed back at him and when Slaughter did so he hit him one time 21 Davenport testified Personnel Manager Flake also asked him what had happened 22 Davenport said Flake asked him how he felt about the Union Davenport told Flake he did not have any feel ings with respect to nor was he concerned about the Union that he was only concerned about his situation right then 23 18 Although the factual findings may not contain or refer to all of the evidence all has been weighed and considered To the extent that any testimony or other evidence not mentioned in this decision may appear to contradict or detract from my findings of fact I have not disregarded that evidence but have rejected it as incredible lacking in probative weight nonreconcilable with expressly credited evidence irrelevant or surplusage 19 Slaughter testified he told the Company that one of the reasons Davenport hit him could have been that Davenport was for and he (Slaughter) was against the Union He contends however he did not tell the Company that until later in the week I am persuaded Slaughter told the Company as testified to by Flake immediately after his encounter with Davenport 20 Zirkle recalled asking Davenport if he had hit Slaughter and he stated Davenport said he had as they were enroute to the office 21 Personnel Manager Flake testified Davenport said he hit Slaughter for mouthing off at him that he was sorry and should not have done it 22 Flake testified he asked Davenport more than once why he had hit Slaughter as Flake denied asking Davenport about the Union 687 Davenport stated Assistant Plant Manager Smittle said they needed to let Davenport punch out and let every thing cool off 24 Davenport testified Riling and Smittle left the office but that he Flake and Zirkle remained behind According to Davenport Zirkle asked if he thought Slaughter had been playing that morning Dav enport told Zirkle he did not think so Davenport testi feed Flake and Zirkle then discussed the fact it would be wrong to have Davenport punch out as had been sug Bested because there had been several fights at the Com pany in the past and the employees had been permitted to return to work without discipline Davenport testified he was told to and did in fact return to work 25 Where in conflict I credit Davenport s version of what was said when he was summoned to Zirkle s office to discuss what had taken place between he and Slaughter I am persuaded all of those present in Zirkle s office were anxious to know what had happened and that Dav enport was questioned by at least Zirkle and Flake about what had happened and why It is very probable and I find Davenport told those present his side of the incident to include the fact Slaughter had drawn back as though to strike him before he hit Slaughter A number of fac tors in addition to my observations as the witnesses testi fled persuades me Personnel Manager Flake asked Dav enport among other things how he felt about the Union The Company had begun that very day to show certain of its employees a video related to signing union cards Slaughter had according to Flake told those present in Zirkle s office Davenport s striking him had come about as a result of the Union 26 With all of the above refer enced interest in the Union taking place that morning and in light of Flake s testimony that things had hap pened very fast with respect to Davenport I am per suaded he asked Davenport how he felt about the Union Considering the totality of the circumstances I am per suaded Personnel Manager Flake s questioning Daven port was coercive and in violation of Section 8(a)(1) of the Act The questioning took place in a managerment office in the presence of most of the top management of ficials of the Company It took place at a time when Davenport might well have felt he could be subjected to disciplinary action Furthermore I note the questioning took place 1 day after Davenport had turned down the Company s request that he form an employee committee to serve in the place of a union at the Company In sum mary and for all the above reasons I find the Company through Personnel Manager Flake violated the Act as al 24 General Foreman Zlrkle testified Vice President of Operations Riling said to send Davenport home Personnel Manager Flake testified he told Zirkle to put Davenport back to work Zlrkle said he sent Dav enport back to work because Personnel Manager Flake indicated he was going to call the Company s legal counsel for advice 25 Personnel Manager Flake testified he called the Company s legal counsel for advice and thereafter received instructions from counsel to send Davenport home pending an investigation into the situation 26 I am persuaded Slaughter was mistaken in his belief that it was later than the day of the incident when he told management the cause of the fight could have been his opposition to and Davenport s support of the Union 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leged at paragraph 8 of the complaint when he ques tioned Davenport about his union sympathies Davenport testified that approximately 1 p in on 17 April General Foreman Zirkle sent for him Davenport met alone with Zirkle in Zirkle s office Zirkle told Dav enport he had orders from Personnel Manager Flake to send him home Davenport asked why and Zirkle told him he did not know that he just had Flake s orders to send him home Davenport testified he asked General Foreman Zirkle Does the Union have anything to do with the fact that I ve got to go home Davenport said Zirkle told him Slaughter had said Davenport had hit him because he (Slaughter) was against and Davenport was for the Union Davenport asked Zirkle how that could be because dunng their entire argument that morn ing they had not mentioned the Union Davenport asked Zirkle if he was fired laid off suspended or what Zirkle told him he did not know that he would have to talk with Personnel Manager Flake Zirkle got Daven port his paycheck and Davenport left Zirkle s office Zirkle testified Davenport told him in their meeting You know I am t going to let this lay Pappy 27 Zirkle told Davenport he assumed he would not Zirkle could not recall the Union being mentioned in the con versation with Davenport I am persuaded as Davenport testified that the Union was mentioned in the above conversation I am so per suaded because Slaughter had told management (includ ing Zirkle) he felt the fight might have resulted from his and Davenport s opposing views on the Union Also Zirkle was unable to specifically deny the Union was mentioned It is implicit in Zirkle s comments that Dav enport s discipline resulted from his union activities Ac cordingly I find General Foreman Zirkle s comments violated Section 8(a)(1) of the Act as alleged at para graph 10 of the complaint Davenport testified that as he was leaving the Compa ny he saw Personnel Manager Flake on a company driveway talking with another employee 28 Davenport asked Flake if he could help him in that he wanted to know if he was fired suspended or what According to Davenport Flake said he did not know at that time Davenport told Flake he thought when employees were fired they were supposed to be given some kind of papers letting them know what their employment status was Flake again told Davenport he could not tell him anything about his employment status at that time Dav enport said he asked Personnel Manager Flake Is it be cause I am going through this hassle is it because of the Union's Davenport testified Flake responded it had something to do with it Davenport said he asked Flake how that could be inasmuch as he had not discussed the Union with any of the employees 29 Davenport said 27 Zirkle testified the employees called him Pappy 28 Davenport identified the employee Flake was talking with as Joe Gates Flake testified no one by that name worked for the Company at that time Contrary to the Company I do not view the name of the em ployee Flake was talking with as being significant with respect to any credibility determinations or any other matter What is important is that Flake and Davenport talked outside the plant on 17 April as Davenport was leaving the area That the two talked is undisputed 28 Davenport acknowledged the comment he made to Flake was not correct in that he had in fact talked to employees about the Union Flake did not respond other than to tell him to call back that evening and he would let him know whether he had been fired Personnel Manager Flake acknowledged he spoke with Davenport in the parking lot as Davenport was leaving the plant on 17 April Flake said he told Daven port he was being suspended as a result of the fight and he would be suspended until the Company had a chance to look into the incident Flake denied telling Davenport his union activities had anything to do with his being suspended however in response to questions by the court he acknowledged Davenport asked him if his sus pension had anything to do with the Union He said he told Davenport it did not A number of factors persuades me Flake told Daven port his suspension was related to his union activities The Company had started that morning to show its em ployees a video about signing union cards Slaughter had told Flake earlier that morning he thought Davenport hit him because of his (Slaughters) being against and Dav enport s being for the Union Flake also had earlier that morning questioned Davenport about his union senti ments In light of all that transpired that day related to the Union it is very probable and I find Flake told Dav enport the actions taken against him were union related Flake s so informing Davenport violated Section 8(a)(1) of the Act as alleged at paragraph 9 of the complaint After Davenport left the Company on Friday 17 April and until he met with Personnel Manager Flake on Wednesday 22 April he telephoned Flake several times to inquire about his empl'oyment status 30 Person nel Manager Flake gave Davenport his separation notice on 2231 April which reflects Davenport was discharged for violating company rules By adducing the evidence outlined above counsel for the General Counsel has established a pnma facie show ing sufficient to support the inference that protected con duct was a motivating factor in the Company s deci sion to discharge Davenport on 17 April See NLRB v Transportation Management Corp 462 U S 393 (1983) citing with approval Wright Line 251 NLRB 1083 (1980) enfd on other grounds 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 959 (1982) As of early April the Company had general knowledge of its em ployees union activities On 16 April the Company through General Foreman Zirkle interrogated Daven port about his union sympathies and also asked him to form an employee committee to function in place of and eliminate the need for a union at the Company Daven port declined the Company s request to form such a committee The very next day he was suspended and thereafter discharged Obviously the Company cannot be held liable for the timing of Davenport s striking Slaugh ter but the evidence is persuasive his protected conduct played a motivating part in the Company s subsequent 30 Davenport testified Personnel Manager Flake told him in one such call on Monday 20 April the Company was investigating an unrelated assault and battery charge that had been lodged against him sometime earlier in a local court 31 Although the separation notice was dated 21 April the evidence is conclusive it was not given to Davenport until 22 April NKC OF AMERICA 689 actions against him Slaughter told the Company on 17 April he thought Davenport might have hit him because of his opposition to and Davenport s support for the Union Thus the Company knew at least from one of its employees that Davenport was perceived to be support ing the Union The Company could also have inferred from Davenport s refusal to form a committee to take the place of a union that he supported the Union Fur thermore when Davenport was interviewed on 17 April about hitting Slaughter he was asked how he felt about the Union by Personnel Manager Flake Later that after noon General Foreman Zirkle implied to Davenport the Company s actions against him resulted from his union activities Additionally and still later on 17 April Per sonnel Manager Flake told Davenport his being sent home was related to the Union Thus counsel for the General Counsel in establishing a prima facie case dem onstrated that the Company perceived Davenport as one who supported the Union that he would not assist it in its efforts to have its employees repudiate the Union and it displayed union animus through Flake s and Zir kle s interrogating Davenport and telling him he was being disciplined because of the Union The burden now falls on the Company to demonstrate by a preponderance of the evidence that it would have discharged Davenport even in the absence of any pro tected conduct on his part The following evidence of fered by the Company is relevant to its burden Vice President of Operations Riling testified that when Executive Vice President Imamura was present at the fa cility all terminations had to be discussed with and ap proved by him Imamura was present when the decision was made to terminate Davenport Riling testified he considered the following factors and took the following actions with respect to Davenport s discharge (1) re viewed Davenport s personnel file (2) observed Slaugh ter s injury (3) discussed the incident with Davenport and Slaughter and (4) considered recommendations made by Personnel Manager Flake Riling testified I recommended [to Executive Vice President Ima mura] Mr Davenport be terminated after discuss mg it with him-and he actually hit a man in the face a fellow worker and I felt that with his temper that he would be-better to himself and to the company to be off the premises Personnel Manager Flake testified that after a thor ough investigation he recommended Davenport be dis charged based on the following five factors (1) the Company had published an Employee Handbook that contained work rules one of which prohibited fighting on company property 32 (2) that Davenport s December 1986 evaluation reflected he had a temper problem (3) that an unrelated assault charge had been filed against Davenport in a local court (4) that Davenport was a group leader and as such was held to a higher stand and than rank and file employees and (5) the severity of Slaughter s injury A careful review of the Company s evidence persuades me it has failed to meet its burden of demonstrating it would have discharged Davenport even in the absence of any protected conduct on his part First Davenport was treated differently from the very outset of the Company s investigation into the incident The Company only suspended Davenport although it ad mittedly knew there was disagreement among the partici pants with respect to who was at fault and that Slaugh ter suspected his antiunion and Davenport s prounion sentiments had something to do with the incident Per sonnel Manager Flake knew Slaughter had been mouth ing offat Davenport prior to Davenport s striking Slaughter 33 Nevertheless only Davenport was suspend ed Flake acknowledged he had not had an opportunity to question Slaughter very much about the incident until Slaughter returned from the doctor to pick up his pay check that same afternoon Davenport had already been suspended at the time Flake questioned Slaughter There is no record evidence that Flake ever confronted Slaugh ter with Davenport s version of the incident Thus the Company s initial actions demonstrate it approached its investigation in a manner favorable to Slaughter who it knew to be antiunion and against Davenport who the day before had refused to form an employee committee to take the place of and eliminate the need for any union at the Company The Company s contention that it was simply attempt mg to enforce its rule against fighting outlined in its newly published handbook when it discharged Daven port does not withstand scrutiny Although the hand book in question was first distributed to the employees in January the Company according to Vice President of Operations Riling had rules governing employee con duct since 1984-one of which prohibited fighting on company property Thus the Company was not enforc ing some new or different rule regarding fighting Furthermore the evidence shows the Company was aware of at least three prior employee altercations on its property that did not result in any of the employees in volved being discharged That the Company was cogni zant it was not uniformally enforcing its policy against fighting is evidenced by the discussion between Flake and Zirkle after Assistant Plant Manager Smittle sug gested Davenport be suspended that it would be wrong to do so in light of the fact it had not taken similar ac tions against others who had engaged in fights on its property The other incidents demonstrating the disparity in treatment the Company afforded Davenport are dis cussed below Employee Kenneth Cook (Cook) testified that in May 1986 during the formal grand opening for the Company he was involved in a fight with then employee Mark Beal (Beal) Cook testified Beal after having been drink ing struck him Cook thereafter hit Beal more than once Cook stated that in trying to get Beal off him he threw 32 The Employee Handbook at Sec 8 Termination of Employ ment reads in part at par 6 as follows 33 In addition to the admitted fact set forth above I find Davenport The following are some examples of actions that may lead to a ter told Flake and the others that Slaughter had made movements that indi mination for cause (d) Fighting on company property cated he was going to hit him dust before he actually hit Slaughter 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Beal into a drainage ditch several times Cook testified Beal later jumped a fence onto adjacent property and was thereafter taken away by the police Vice President of Operations Riling acknowledged he was aware of the Cook/Beal incident which he said resulted in Beal sus taming a cut on his head and being taken away from ad jacent property by the police but he stated he consid ered that incident to be horseplay because everybody was in a very happy mood that day Cook s uncontra dicted testimony indicates the only thing the Company required of either of them after the fight was that Beal apologize to Cook before he could return to work Thereafter Beal and Cook continued to work in the same vicinity at the plant Employee Lamar Holt (Holt) testified he was involved in an altercation with employee Rick Cossy (Cossy) in the paint department at the plant in 1986 Holt testified paint department employees made tape balls and continu ously threw them at each other Holt said he threw such a tape ball and hit Cossy Holt testified Cossy thought some other employee hit him Cossy told the other em ployee that was a good %ay to get kicked Later Cossy told Holt it was a good way to get [his] ass kicked Holt said he told Cossy You re wrong fat boy at which time Cossy grabbed Holt s wrist Holt was stack ing pieces of steel and had one such piece in his hand at the time Holt stated Leadperson Stephens told them to stop their actions Holt said he told Cossy they could finish the matter across the river in Arkansas 34 The only action the Company took against Holt and Cossy was to place a written warning in each of their personnel files Assistant Plant Manager Smittle testified that in summer 1986 employee Milan Hepker (Hepker) reported to him that employee Sammy Taylor (Taylor) had slapped him in the face Smittle confronted Taylor with Hepker s allegations and Taylor admitted slapping Hepker Smittle told Taylor the Company did not need that type of behavior in its plant and then assigned the two of them to work at opposite ends of the work bay area No further action was taken against Taylor or Hepker The overall evidence undercuts the Company s con tention that Davenport s 1986 evaluation played a signifi cant role in its decision to discharge him There is no question but that Davenport s December 1986 evaluation reflected his only weakness was a slight temper prob lem However Davenport s March evaluation makes no mention of any temper problem slight or otherwise and his overall evaluation was good which is the second highest rating the Company gives There is no evidence that Vice President of Operations Riling or Personnel Manager Flake attempted to ascertain from Leadperson Stephens what he meant by his December comment that Davenport had a slight temper problem In fact Person nel Manager Flake testified he had no knowledge regard ing what constituted the slight temper problem Leadper son Stephens eluded to in Davenport s evaluation If Riling or Flake had sought Stephens out on this matter it s* Both Holt and Cossy live across the river from Memphis Tennes see in Arkansas is very probable he would have told them what he tests feed to at trial which was that Davenport and the others were rushed to complete work and as such all of them had temper flareups from time to time Stephens presum ably would also have told Riling and Flake as he also testified to at trial that Davenport was a good worker who worked well with his men 35 In agreement with counsel for the General Counsel I find this lack of inter est by Riling and Flake in the meaning and intent of Davenports earlier slight temper problem coupled with the fact the Company appears to have ignored his overall work record and subsequent good evaluation tends to indicate the Company was seeking justification for its decision to discharge Davenport rather than to in vestigate the Davenport/Slaughter incident The facts compel the conclusion the Company did not consider as important or weighty in its decision to dis charge Davenport the fact he had been charged with an unrelated prior assault action The evidence discloses that during the Company s investigation into the Daven port/Slaughter incident Personnel Manager Flake after being alerted to the fact by Assistant Plant Manager Smittle discovered a letter in Davenport s personnel file that indicated he had been absent from work for a court appearance on 3 February The Company s legal counsel pursued the matter and determined the underlying cause for the court appearance was an assault and battery charge filed against Davenport The Company s legal counsel obtained a copy of an affidavit in the unrelated case in which Davenport was accused of an assault and battery that allegedly occurred on 1 November 1986 Personnel Manager Flake testified he never after receiv ing the affidavit sought to have Davenport explain his side of the accusations made in the affadivat On the other hand the record discloses that at the same time there were notices in Slaughters personnel file pertaining to three absences from work for him in September and October 1986 for appearances in a local court of criminal jurisdiction 36 The Company did not attempt in any manner to ascertain the circumstances surrounding Slaughters absences Thus in agreement with counsel for the General Counsel I find the evidence is persuasive that the Company was simply looking for anything to buttress its decision to discharge Davenport when it raised the prior unrelated assault charge as a justification for its actions The significance of the fact that Davenport as a group leader was held to a higher standard of conduct than other production employees is seriously undermined by the fact he was never told he was being held to any such higher standard If group leaders were going to be held to a higher standard and if that could adversely impact their employment I am persuaded the Company would have so informed Davenport and the other group lead ers Again this appears to have been an effort by the Company to justify its actions against Davenport as I note Stephens trial testimony was in keeping with his March eval uation of Davenport 36 I find suspect Flakes testimony that he did not see the notices in Slaughters personnel file even though he reviewed Slaughter s file at the time of the Davenport/Slaughter incident NKC OF AMERICA 691 The final reason for which the Company contends it discharged Davenport was the seventy of Slaughter s injury It is undisputed that the injury to Slaugher (a cut on the left side of his face) required medical attention However the attending physicians written report re fleets Slaughter was released to resume work immediate ly The same report reflects there will be no permanent defects or disfigurement to Slaughters face as a result of the laceration he received in the incident with Daven port The severity of the injury to Slaughter appears to have been very similar to that which employee Beal sus tained when he engaged in an altercation with employee Cook In the Cook/Beal incident Beal received a lacera tion to the head that required attention However in the Cook/Beal incident no actions were taken against Cook or Beal by the Company other than Beal was required to apologize to Cook before he (Beal) could return to work Accordingly I am persuaded the seventy of the injury to Slaughter was not a material or consequential consid eration by the Company in its decision to discharge Dav enport but rather was yet another attempt by the Coin pany to justify its actions with respect to Davenport In summary I find counsel for the General Counsel es tablished a puma facie showing the Company was un lawfully motivated in its decision to discharge Daven port and that the Company failed to rebut the General Counsels puma facie case Accordingly I find the Corn pany violated Section 8(a)(3) and (1) of the Act when on 17 April it discharged and thereafter failed and refused to reinstate its employee Davenport CONCLUSIONS OF LAW 1 The Company NKC of America Inc is an em ployer engaged in commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act 2 Shopmen s Local Union No 813 of the International Association of Bridge Structural and Ornamental Iron Workers AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 By engaging in the following conduct on 16 and/or 17 April 1987 the Company committed unfair labor prac tices in violation of Section 8(a)(1) of the Act coercively interrogating an employee about his union activities and desires soliciting an employee to assist in an effort to have employees repudiate the Union by forming an em ployee committee and informing an employee he was being disciplined because of the Union 4 By discharging Lucious Davenport on 17 April be cause of his union sentiments the Company violated Sec tion 8(a)(3) and (1) of the Act 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY if that position no longer exists to a substantially equiva lent position without prejudice to his seniority or other rights and privileges previously enjoyed and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him with interest Backpay shall be computed in the manner prescribed in F W Woolworth Co 90 NLRB 298 (1950) with interest as computed in New Horizons for the Retarded 37 Like wise the Company must remove from Davenport s records any reference to his having been discriminatorily discharged and notify him in writing this has been done and that evidence of that unlawful action will not be used as a basis for any future personnel actions against him Finally the Company must post a notice to its em ployees attached hereto as an appendix for 60 days so that employees may be apprised of their rights under the Act and the Company s obligation to remedy its unfair labor practices Counsel for the General Counsel request ed that a visitatonal clause be included in the order The evidence does not establish the necessity for such a cause Accordingly I hereby deny that request On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed38 ORDER The Company NKC of America Inc Memphis Ten nessee its officers agents successors and assigns shall 1 Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Shopmen s Local Union No 813 of the International Association of Bridge Structural and Ornamental Iron Workers AFL-CIO or any other union (b) Coercively interrogationg any employee about union support or union activities (c) Soliciting its employees to assist in an effort to have its employees repudiate the Union by forming an employee committee (d) Informing employees they are being disciplined be cause of the Union ° (e) 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) Offer Lucious Davenport immediate and full rein statement to his former job or if his former job no longer exists to a substantially equivalent position with out prejudice to his seniority or other rights or privileges previously enjoyed and make him whole for any loss of earnings and other benefits suffered as a result of the dis crimination against him in the manner set forth in the remedy section of this decision Having found that the Company has engaged in cer tarn unfair labor practices I find it necessary to order it to cease and desist therefrom and to take certain affirma tive action designed to effectuate the policies of the Act It having been found that the Company discriminaton ly discharged Lucious Davenport it must offer him im mediate and full reinstatement to his former position or 31 We will not coercively question you about your union support or activities se 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 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Remove from its files any reference to its discriml natory discharge of Lucious Davenport and notify him in wasting this has been done and that the discharge will not be used against him in any way (c) Preserve and on request make available to the Board or its agents for examination and copying all 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 Memphis Tennessee facility copies of the attached notice marked Appendix 39 Copies of the notice on forms provided by the Regional Director for Region 26 after being signed by the Company s author ized representative shall be posted by the Company im mediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Company to ensure that the notices are not altered defaced or covered by any other material (e) Notify the Regional Director in wasting within 20 days from the date of this Order what steps the Compa ny has taken to comply 99 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To form join or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT discharge or otherwise discriminate against any of you for supporting Shopmen s Local Union No 813 of the International Association of Bridge Structural and Ornamental Iron Workers AFL- CIO or any other union WE WILL NOT coercively question you about your union support or activities WE WILL NOT inform you that you are being disci plined because of the Union WE WILL NOT Solicit you to assist us in an effort to have our employees repudiate the Union by forming an employee committee WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Lucious Davenport immediate and full reinstatement to his former job or if that job no longer exists to a substantially equivalent position without prej udice 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 notify Lucious Davenport that we have re moved from our files any reference to his discharge and that the discharge will not be used against him in any way NKC OF AMERICA INC 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 Section 7 of the Act gives employees these rights To organize