Mulay Plastics Of Holly Springs, Inc

708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mulay Plastics of Holly Springs, Inc and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO Cases 26-CA-12247 and 26-CA-12367 November 15 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On July 13 1988 Administrative Law Judge Joel A Harmatz issued the attached decision The General Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief to the General Counsels exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings i and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed 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 incorrect Standard Dry Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The General Counsel has not excepted to the judge s findings concern mg the written warnings given to Sammie Parker on July 20 and 31 1987 and the written warnings given to Delores Bailey on October 14 and 21 1987 We agree with the judge that the Respondents position statement (G C Exh 4) does not demonstrate that an exception to Rule 22 existed However we find it unnecessary to rely on that part of the judge s ra tionale in fn 15 of his decision beginning with Concern also exists and continuing to the end of the footnote John H Goree Esq for the General Counsel R Pepper Crutcher Jr Esq (Miller Milan & Moeller) of Jackson Mississippi for the Respondent Curtis C Garrison International Representative of Mem phis Tennessee for the Charging Party DECISION STATEMENT OF THE CASE JOEL A HARMATZ Administrative Law Judge This proceeding was heard by me in Memphis Tennessee on January 11 12 and 13 1988 on an initial unfair labor practice charge filed on August 3 1987 and a consoli dated complaint issued on December 11 1987 alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing written warnings to Sammie Parker Harmon Mannon Jr and Delores Bailey and by terms 291 NLRB No 111 nating Sammie Parker all in reprisal for union activity The complaint further alleges that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally imple menting a new work rule without prior notification and without affording the exclusive statutory representative the opportunity to bargain with respect thereto In its duly filed answer the Respondent denied that any unfair labor practices were committed Following close of the hearing briefs were filed on behalf of the General Coun sel and the Respondent On the entire record in this proceeding including con sideration of the postheanng briefs and my opportunity directly to observe the witnesses while testifying and their demeanor i I make the following FINDINGS OF FACT I JURISDICTION Respondent is a corporation with an office and place of business in Holly Springs Mississippi the sole facility involved in this proceeding From that facility it is en gaged in the manufacture and sale of plastic television cabinets During the 12 month period preceding issuance of the complaint a representative period the Respond ent in the course of operations sold and shipped from its facility products goods and materials valued in excess of $50 000 directly to points outside the State of Mississippi and received at its facility goods and materials valued in excess of $50 000 which were shipped directly from points outside the State of Mississippi The complaint al leges the answer admits and it is concluded that Re spondent is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleges the answer admits and it is concluded that the United Rubber Cork Linoleum and Plastic Workers of America AFL-CIO is now 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 PRACTICES A Preliminary Statement This case is primarily concerned with issues of dis crimination ansing after a successful union campaign at Respondents previously unorganized plant located in Holly Springs Mississippi At that location the Re spondent manufactures television cabinets as a vendor to such electronic giants as Sony Sharp Gold Star Zenith Sanyo NEC and Pioneer The union drive began in April 1986 On June 20 1986 an election was conducted by the Board The tally showed that of 209 eligible employees 126 voted for and 79 voted against union representation with 4 nonde Credibility resolutions that follow are occasionally accompanied by objective rationale This is intended to reinforce not diminish percep pons gained through my firsthand observation of the witnesses and their demeanor Furthermore unmentioned testimony is rejected to the extent that it is irreconcilable with expressly credited evidence MULAY PLASTICS terminative challenges Timely objections to the election were filed by the Employer and on August 4 1986 the Regional Director for Region 26 issued his report over ruling the objections in their entirety and certifying the Union as exclusive representative The certification was contested and the Board by order dated June 17 1987 issued its Decision and Order finding that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union based on the cer tification 2 Following close of the hearing the Board s 8(a)(5) order was enforced per curium by the United States Court of Appeals for the Fifth Circuit 3 In this proceeding the General Counsel contests disci plenary action invoked by the Respondent well after the election Remedially the most significant issue pertains to the discharge of Sammie Parker a known union pro tagonist who acted as a union observer during the elec tion and who was a member of the Union s negotiating committee Parker was discharged pursuant to Respond ent s progressive disciplinary system after receiving his third written warning within a 12 month period The General Counsel contests the legitimacy of each of said warnings Respondent has conceded that Parker would not have been terminated if any of these warnings had not, issued It follows that the discharge is to be deemed violative of Section 8(a)(3) should the evidence support illegality of either of the three warnings The complaint also includes an allegation that Re spondent violated Section 8(a)(5) and (1) of the Act by its unilateral modification of work rules and its issuance of disciplinary warnings to Parker and coworker Maranon in consequence of that change Finally the complaint alleges that the Respondent further violated Section 8(a)(3) and (1) of the Act by subsequently issuing successive warnings to Delores Bailey also a known union activist B The Alleged Discrimination Against Sammie Parker 1 The initial May 15 warnings The earliest of the alleged unfair labor practices oc curred on May 15 1987 4 almost 11 months after the election On that date Parker and Mannon received des ciplinary warnings At times material Respondents published work rules included Rule 22 which stated as follows 22 NO EMPLOYEE SHALL BE FOUND AWAY FROM HIS WORK STATION OR DEPT WITHOUT HIS IMMEDIATE SUPER VISORS [sic] CONSENT 5 The May 15 warnings issued to Parker and Maranon each stated as follows ` Violation of Company Rule #22-Being away from work station without supervisors permission 6 2 284 NLRB No 35 (not reported in Board volumes) 4 NLRB v Mulay Plastics 847 F 2d 838 (5th Cir 1988) 4 All dates refer to 1987 unless otherwise indicated 4 See R Exh 1 4 See Jt Exhs 1-2 709 Parker made the following inscription on his warning It is common knowledge that everyone who has a window rolled down while it is raining you could go out there and roll it up It been that way every since I been out here It is the first time anyone been written up for this The General Counsel contends that both were issued in violation of Section 8(a)(1) (3) and (5) of the Act First it is argued that the warning to Parker was based on specific evidence of union animus On the other hand Mannon did not testify and his union sentiment is un known Nevertheless the General Counsel argues that Mannon was caught in the web and his warning was also unlawful since designed to create a facade of inno cence to support Respondents action against Parker The legitimacy of these warnings is also challenged under Section 8(a)(5) In this regard the General Court sel s theory is dependent on the premise that Respondent maintained an exception to rule 22 in the case of parking lot visitations during rainstorms and that any warning issued in contravention of that practice without notifica tion and bargaining with the Union was a refusal to bar gain in good faith-itself sufficient to invalidate the warnings The argument that the Respondent maintained an un written exception to rule 22 is pivotal to the 8(a)(3) and (5) allegations Thus at times material Parker was classi feed as a line load His primary duty was to start cabi nets through the assembly line process in the finishing department by loading them on a conveyor Inattentive ness to his duties could cause productivity problems throughout the line Although Parker claims that his work was caught up he admits that he left his station unattended and without permission on the occasion in question In these circumstances considering the ordi nary meaning of rule 22 the condonement argument is an essential element of the challenge to the legitimacy of the May 15 warnings In this respect lay testimony provides the vanguard for the General Counsels position A number of employ ees were called to support the notion that when it rained the published rule did not apply to those who wished to roll up their car windows It is also argued that this ex ception was so well embedded in plant practice to conste tute a condition of employment These assertions are maintained despite the fact that not a scintilla of evi dence suggests that any employee was ever told by any supervisor leadman or other representative of manage ment that the rule was so limited As shall be seen this effort to vary rule 22 through parol testimony was singularly unpersuasive The person al perceptions lacked consistency made little pragmatic sense and struck me as wildly argumentative Much of the testimony was based on a combination of deduction derived from what employees themselves did and got away with and their own personal rationalizations For example Parker testified that employees could leave their work stations without obtaining permission to go outside in the rain to roll up car windows if (1) re 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lieved or (2) ahead in their work 7 Parker cautioned however that wouldn t nobody leave their job untaken care of if the job was behind Implicit in this view is the notion that employees could themselves determine whether job requirements demanded that they remain at their work stations 8 As these qualifications of the al leged privilege are not imputed by Parker to the words of management and as they are not logically linkable to any active or tacit conduct by the latter they must have been conceived by Parker himself The attempt to demonstrate management approval of such an exception to rule 22 was furthered by coworkers Charles Williams Dennis Holmes Johnny Newsome and Phillip Milam all spray painters and James Hudson a setup man Here too the witnesses gave vent to their own personal deductions predicated upon what they themselves did Moreover there accounts often bore traces of unreliability Thus James Hudson a setup man with no fixed work assignment described his job as help ing out up and down the assembly lines He related that if he saw a supervisor he would tell him but if not he would on his own go out and roll up his car windows in the event of rain He testified that he would go out for this purpose in the course of the summer a lot of times 9 Hudson s testimony that rule 22 was not en forced is rejected He admits he was never told by any representative of management that he could leave his work station without permission 10 In any event one may not fairly infer tacit approval by management of Hudson s action since Hudson was not confined to a specific work station but had the run of the plant Therefore his walking about the plant would not neces sanly evoke suspicion and likely would be taken by su pervisors as routine and having no relationship to any possible violation of rule 22 There is no credible founda tion for Hudson s assumption that management approved any exception to that broadly stated rule 11 The General Counsels witnesss were not always con sistent in their description of the alleged practice Phillip Milam a spray painter testified that he would leave his work station to roll up his windows or go to the bath room without permission if he could not find a supervi ' It is fair to assume that an operator would only be relieved at man agement s direction a condition which implies supervisory consent in conformity with the written rule a In contrast Dallas Walls the finishing department foreman testified that he learned of Parker s violation of rule 22 when he discovered that Parker s job was behind and Parker was unavailable 9 His testimony seemed a bit exaggerated In my opinion the circum stances in which employees found it necessary to leave their work sta tions because of afternoon thundershowers would occur infrequently The dayshift ended at 3 30 p in and employees had a 2 p in break period Thus they would only find it necessary to leave their work stations in the event of a sudden unforeseen storm in this brief interval At the same time one need not be a meteorologist to appreciate that storms of this nature generally are confined to the spring and summer months and more often than not would occur later in the day ° Hudson testified that his practice in leaving his work assignment to go to the bathroom was the same Thus he would take off if he could not find a supervisor i i Hudson testified that in June or August 1987 he informed Dallas Walls that he had been outside rolling up car windows including Walls truck whereupon Walls simply nodded and did not inquire whether he had permission There was no expression as to how Walls would have known that Hudson had left his work without permission sor He indicates contrary to Parker that he could leave even if there was work to be done at his station It is diffi cult to imagine that management would condone this or any other employee conduct threatening the continuity of production 12 Another variation of the theme was presented by Dennis Holmes a painter on the first shift Holmes ac knowledged that while he was aware that he was not supposed to leave his work station without permission and knew that he could not go to the bathroom without permission he was not sure this ban applied to rolling up car windows in the event of a sudden rainstorm He agreed with Milam while disagreeing with Parker by testifying that he would leave to roll up his car windows even if work had to he done Holmes acknowledged that it was possible that no one ever saw him engage in such activity Johnny Newsome testified that before going out to roll up his windows he would look for a supervisor but if one was not around he would leave Newsome testified that he would seek a replacement or permission before going to the bathroom 13 Charles Williams a spray painter testified that he never had to have permission to leave the paint booth to roll up his automobile windows Williams also testified that in the past he did not have to get permission to go to the bathroom but then suggested that approval by the leadperson was required Williams testified that on the day that Parker received his warning he and another painter Bruce Brown were headed to the parking lot to roll up their windows when Felix Salono Williams leadman stopped them and instructed them to return to their work stations Neither Brown nor Williams re ceived a warning There is no evidence that Parish or Walls were aware of this incident Williams also testified that he was aware that Sammie Parker received a warning because he observed him being taken to the office and because he discussed the warning with him Nevertheless Williams averred that with this knowledge the next day when it rained again he went outside again to roll up his windows without permission Williams a known union activist claims that Walls was in the area and inquired where Williams was going Williams related that he told Walls that he was going outside to roll his windows up whereupon Walls simply indicated okay Here again I do not believe 12 Milam testified that on one occasion he and his supervisor George McClellan were out in the parking lot at the same time While there was no indication that this occurred during nonbreak conditions the presence of McClellan implies consent as required by rule 22 13 Newsome testified that on one occasion while working on the first shift as a boxer he went outside to roll up his window and told Walls what he had been doing According to Newsome Walls really didn t say anything its okay alright Here again as Walls testified rule 22 was to be policed by leadpersons and he had no reason to assume that employees did not acquire permission before leaving their work areas Moreover there is no indication that Walls would have known that Newsome had failed to obtain permission Finally Newsome an overt union supporter testified that this incident occurred in September 1987 a few months after the Parker warning Is it likely that Walls would have ignored this violation of rule 22 by a known union supporter at that time? In any event when confronted with his affidavit Newsome admitted that he did not work the first shift in that year I believed Wall s denial that the incident ever occurred MULAY PLASTICS that the incident occurred Against the background of the warning received by Parker and Salono s intercession of the previous day I consider it entirely unlikely either that he would have left his work station in that fashion the next day or that Walls knowing Williams status as a union supporter would have condoned this breach of rule 22 so soon after issuing the reprimand to Parker Williams also testified that he was observed in similar ventures by George McClellan and Foreman Don Parish but he did not relate that the latter would have known that permission had not been obtained or that this occurred outside the normal break periods Considering the 8(a)(5) allegation first here the pub lished prohibition against leaving one s work station without permission is clear and unqualified No employee testified that they were ever informed by any representa tive of management either orally or through publication that any exception existed to this ban At the same time the foregoing testimony by Parker Williams Milan Newsome Hudson and Holmes did not provide a credi ble foundation for concluding that Respondent had con doned approved or otherwise endorsed any practice whereby employees might leave their work stations without permission to roll up car windows in the event of a midshift rainstorm 14 Moreover the General Court sel s evidentiary claims under Section 8(a)(5) may be faulted on grounds transcending credibility Even if be lieved employee testimony concerning their perceptions in the circumstances of this case offers a highly dubious basis for ascertaining the Employers intent with respect to rule 22 Absent some form of unequivocal notification by management an employees testimony concerning his or her perception of what is expected is limited to beliefs acquired from what is observable in the workplace Such testimony ought not be taken as reliable proof that the employer intends to abandon the concept of plant disci pline embodied in a clearly stated published behavioral rule While there is little authority shedding light on the quality of evidence which suffices to establish that an employment practice qualifies as a mandatory subject of bargaining common sense and an appreciation for the harmony fostered by the Act requires a cautious ap proach to factfinding where the published employment rules say one thing and employees another In the work place it is entirely conceivable that prohibitions irre spective of how essential to the maintenance of plant dis cipline will be viewed and enforced differently by differ ent supervisors The fact that some are timid and others lax does not mean that the prohibition falls by the way side subject to resurrection only after the employer note fies and bargains over the issue in good faith If every challenge to an act of discipline were to qualify as rooted in an existing term and condition of employment 14 The General Counsel seeks support from the fact that leadpersons were not called to testify regarding the so-called practice of allowing em ployees to leave their work area Because no one testified that he was told by a leadperson that rule 22 did not apply in this situation or that he did not need permission to roll up his car windows this step was unnec essary The employee testimony that a practice existed was in the nature of characterization rather than fact and Respondent was perfectly free to stand on rule 22 rather than call leadpersons to argue down the open ions and deductions offered through the General Counsels witnesses 711 routine enforcement of duly promulgated rules of con duct would be encumbered by the need either to first bargain to impasse or to obtain the union s assent On the other hand where identification of the existing practice is founded on strict proof plant discipline is preserved without offense to any competing interest To this end an alleged mandatory subject to bargaining if not recon cilable with the employers published employment policy should be allowed to embrace only those terms and conditions of employment that factually are discerni ble with a minimun of debate In short the evidence must be clear enough to allow a distinction between quarrels which first must be resolved at the bargaining table and those which are properly and routinely relegat ed to the grievance process The General Counsels evi dence even if truthful would fail to meet this test For the above reasons it is concluded that the General Counsel has not established that the Respondent directly or indirectly adopted a practice affording employees dis cretion to leave their work stations without permission to roll up their car windows Thus rule 22 was the only extant mandatory subject of collective bargaining and the warnings issued to Parker and Mannon being con sistent therewith did not entail a change giving rise to a prior obligation to notify and bargain with the Union in good faith The allegation that Respondent violated Sec tion 8(a)(5) and (1) of the Act in this respect shall be dis missed 15 Regarding the 8(a)(3) and (1) allegation the claim that rule 22 was disparately applied is vital to the prima facie case For beyond that the background is not entirely suspect Thus although Parker was a union election ob server and leading protagonist of the Union the timing of the discipline does not arouse suspicion and there is no evidence showing union animus of the type suggest ing that Respondent had a proclivity to retaliate against union supporters Moreover Parker did violate rule 22 15 The General Counsel contends that a position statement submitted by Respondents counsel during the investigatory stages of this proceed mg establishes that Respondents supervisors [were] aware of the practice which allowed employees to leave their position without permis sion in case of a rainstorm See G C Exh 4 I do not subscribe to this interpretation of that document Nowhere does it indicate that rule 22 was abandoned or that management condoned any practice where em ployees could leave their work station for any purpose At best it merely establishes that violations of rule 22 had been overlooked and that Re spondent had taken measures to correct that situation Concern also exists whether the Board should regard documents of this nature as reliable proof of admissions against interest Such statements often are submitted early in the process and should be encouraged by the Board as an aid to the administrative evaluation of all evidence available during the investi gatory process Yet time is a vital commodity to attorneys and in the relaxed pretrial atmosphere mistakes will be made on all sides This is particularly so where the allegations are numerous and present a complex and lengthy factual pattern To bind a party with the preliminary argu ments and factual representations made by attorneys in these unsworn documents would naturally arouse concern for the risk of participation In consequence the voluntary investigatory process will be endangered while heightening the possibility that adjudicated facts and truth will be preempted by premature and erroneous statements made early and with out clear definition of prosecutorial theories or perhaps even without op portunity for careful development and complete understanding of the facts 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Respondents past enforcement is evidence by nu merous citations i 6 My reservations concerning the testimony of employ ees that management knowingly condoned any violation of Rule 22 has been previously discussed At best from the General Counsels point of view this evidence merely suggests that some leadpersons were lax in polio ing the rule The import of this evidence however is di minished by credible testimony of Walls regarding the circumstances triggering his involvement in the discipline of Parker and why the warning was issued Thus Walls testified that he took this step solely be cause Parker and Mannon had violated rule 22 He testi fled that their reason for violating the rule was irrele vant and that to his knowledge no employee ever left his work station without permission and without getting disciplined He also avers with confirmation from Fore man Don Parish that enforcement of rule 22 was the re sponsibility of leadpersons and that with over 100 em ployees in the finishing department on observing em ployees away from their work stations he normally would not inquire for he had no reason to assume that they lacked permission 17 He explained that he had reason to believe that Park er s case was different Thus according to Walls as he walked through the spray paint area on May 15 he no ticed that the overhead line was not carrying parts to the first booth where the spray painters were standing around with nothing to do Walls investigated by follow ing the conveyor line to Parker s line loading station 18 Parker was not there Walls inquired about his where abouts and was informed that he went outside Walls then went to the timeclock area by the exit where he en countered Parker and Mannon 19 Walls inquired whether they had permission to leave their work station Both Parker and Mannon replied that they were rolling up their car windows on account of the rain Later that day Mannon and Parker were called to the office where each received his written warning Walls emphasized that while normally he would not inquire about whether an employee had permission to be away from his work station he checked up on Parker 16 See R Exhs 5(a)-(m) The General Counsel correctly observes that no warning prior to that issued to Parker and Mannon specified that the disciplined employee had left the work area to go to the parking lot during a rainstorm to roll up car windows However this was also true in the case of the Parker and Marmon citations 17 Several of the General Counsels witnesses testified that they rolled up their car windows under conditions in which Walls would have ob served them or that they reported that they were doing so to Walls None however related that Walls would have had any basis for suspect mg that they had left their work stations without permission According ly even had I believed this testimony and I did not believe all of it I would not conclude that it demonstrates that Walls had condoned any such practice Indeed in crediting Walls testimony that he did not his account is entirely probable for it is difficult to imagine that any manag er of an assembly type operation would allow employees to pick up and leave their work stations at their own discretion and without permission for any reason 18 It takes 6 1/2 minutes for a part to go from line load to the first spray booth 19 Parker testified that Debbie Haley a stocklady was standing next to Hall when she called out to the parking lot urging someone to roll up her windows Marmon allegedly did so Walls denied that Haley was in the vicinity The conflict need not be resolved because of his discovery that no one was working his station and parts were not coming up the line 20 Parker and spray painter Charles Williams dispute Walls account of what promoted his investigation Both relate that Parker s absence could not have impeded work on his line that afternoon Parker acknowledged that as a line load operator it was his responsibility to keep every hook on his conveyor line full However he explained that when he left his station all hooks were loaded As for the state of his work station when he re turned 2 or 3 minutes later Parker s description as re vealed through colloguy with the General Counsel is a follows Q Now when you got back to your line after you came from outside how was your line how was the production line? A It was still filled It didn t take no more than two or three minutes to go outside And if they did empty hooks I had plenty of time to be back before it was you know got around to me for me to hang the parts Q Okay were there still cabinets hanging up? A Oh yeah it was plenty of cabinets still hang mg on the line Parker explained that every 30 seconds an empty hook appears and that during his absence the line continued in motion However according to Parker hooks ap proaching his work station at the time were full because down the line parts were not being removed from the line and hence were returned to his area still occupying hooks He testified with corroboration from Charles Wil hams that this was caused by a bottleneck in the paint area where parts were scattered all over the floor 21 As between Walls Parker and Williams Walls impressed as the more reliable witness I credit his testimony where it conflicts with that of Parker and Williams Based on the credited testimony it is concluded that the General Counsel has failed to substantiate prima facie that the May 15 warning citations issued to Parker and Mannon were in any sense related to Parker s role in the organizational effort The proof does not establish that Walls who issued the warnings recognized any ex ception to rule 22 or condoned any practice where em ployees did not need permission to leave their work sta tions to roll up their windows in the event of a sudden rainstorm Nor may discrimination be inferred fairly where the credited evidence is limited to a showing that a key protagonist of the Union some 11 months after an election engaged in a breach of a published work rule On the other hand even were I to find that the General Counsel had met his initial burden the evidence on behalf of the defense credibly establishes that these writ ten warnings would have been forthcoming even if there 0 This testimony is construed merely as an explanation of how Walls learned that Parker was away from his work station without permission It is not considered inconsistent with his testimony that the violation of rule 22 was the sole reason for issuance of the reprimand 21 Williams added that the touchup area was also loaded with parts and that he had been told to suspend painting until touchup caught up MULAY PLASTICS 713 had been no union activity Accordingly the 8(a)(3) and (1) allegations in this respect shall be dismissed 2 Parker s second warning July 20 1987 On July 20 Parker received his second written warn ing It describes the following offense Poor workman ship Failure to sand blisters on cabinets In response Parker enscribed the following on the warning I don t feel that I [sic] been treated fairly They are making me accountable for work that has al ready been looked at by other [sic] They said I [sic] been letting a whole lot of blister get by I [sic] been doing the same job everyday all of a sudden I am doing a bad job Its not a fair ruling It is unjust Blisters are traceable to the molding department They present a production problem frequently encountered on large cabinets such as the 20 inch Sharp handled by Parker s line on July 20 Respondent does not dispute that that particular cabinet was having blister problems during the period in question Parish testified however that the cabinets were inspected in the molding depart ment and if blistered segregated in separately marked boxes which would alert the line load operator to the problem According to Parish he had previously talked to Parker several times about blisters There is no dispute that it was Parker s responsibility to investigate the cabinets for blisters and to sand them out before hanging the cabinet on the line Finishing De partment Superintendent Don Parish testified that it is important for blisters to be caught before hanging be cause painters do not have time to inspect for blisters and will paint the cabinets even if flawed in that respect Once painted after a second check for blisters the touchup person is responsible for correcting them by sanding and repainting Barbara Wicks the touchup person on Parker s line was the pivotal witness concerning this warning Before reaching Wicks the cabinet is painted examined by a paint inspector and then turned over to Wicks for ap propnate correction In the case of missed blisters Wicks will correct the problem by sanding the blister and either repainting the blemished area herself and placing it on the line or sending it back to the sprayer She testified that in July while handling Parker s 25 inch Sharp she discovered that unsanded parts with Parker s initials were reaching her station in large quantities 22 Wicks complained to leadman Dayton Jones as well as Walls and Parish She specifically singled out Parker complain ing that he wasn t sanding them because I was getting them and my fingers had gotten raw from sanding so many She alleges that on the day of the warning she complained to her supervisors about Parker s failure to sand the parts throughout the entire shift 23 22 Line loaders are required to initial parts that they place in produc tion 23 Wicks placed these events on July 30 However considering her tes timony in conjunction with that of Parish it is concluded that she was mistaken and that actually she was describing what had occurred on July 20 Parker did not deny that he had hung blistered parts He also somewhat grudgingly admitted that Wicks at tempted to get his attention about putting blistered parts on the line He also did not deny that blistered parts were segregated and in separately marked containers before reaching his station If I understand his testimony his claim that the warn ing was unjust lies in the argument first that some of the defective cabinets could have been hung the night before by the second shift Second he asserts that his ap proach to his work was no different on the day of the warning than it had been in the past His final point seems to be that enough time had not elapsed to make him responsible for the problem Thus while admitting that he was approached by leadman Dayton Jones who cautioned that the touchup lady was complaining about problems with blisters Parker allegedly responded that everything over here looked good but did tell Jones that he would examine the parts closer Parker insists that this occurred at 9 20 a in while claiming that a cab met once hung at his station would take 45 minutes to an hour to reach touchup He next relates that within a half hour Jones and Parish came to his work station took him to the personnel office where Jones stated We ve been having a lot of problems with blisters on the 25 inch cabinets we hadn t had ten (10) good parts all morning on the line An argument ensued about whether Parker had met his responsibilities con cerning the blisters capped by Personnel Manager Clif ford Wade s implication that Parker must have been at fault if only 10 good parts had been produced all morn ing Parker then pointed out that everything went fine until 9 20 a m Nonetheless the warning issued Parish testified that for several days prior to issuance of the warning he had been cautioning Parker about blisters while advising that if Parker could not furnish good parts and keep up with production rates Parish would get him help as he had always done in the past Yet according to Parish before issuing the warning he had to shut down the spray paint operation because the touchup girl had 30 to 40 parts stacked for correction and could not keep up with the bad parts He relates that Parker s performance was deficient in two respects first he was not sanding every cabinet and second he was not sanding properly 24 He related that after the warning Parker testified that when Wicks attempted to show him the area where the blisters were appearing he explained that he could sand the parts but that after they went to the paint room they would hit the heat and the blisters would reappear This possibility was confirmed by sever al spray painters including Charles Williams Phillip Milan and Dennis Holmes Thus Williams testified that on occasion a blister will be sanded before loaded on the line but after painting and heating the blisters would reemerge before reaching touchup He admitted however that these cabinets would not be scraped but would be redone thereby imply ing that the blister could be removed with permanency through proper sanding Holmes confirmed that the problem would be corrected through resanding and repainting The fact that these cabinets were not scraped supports the testimony of Barbara Wicks that if the blisters were sanded down to the raw part they would not reemerge after passing through the oven I reject Parker s excuse in this respect and find based on Wicks credited testimony that the blisters would not reappear if sanded 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD issued Parker must have changed his approach because his rejects dropped tremendously even though the pro duction rate declined There is no question that the load line operator was key to the effort to correct the blisters of cabinets 25 The touchup person was the backup Parker knew he was not to load a blistered part He was alerted to them by lables on the packing box and whatever the case it was his duty to inspect for blisters and correct the part If there were too many blistered parts for him to maintain pace with the line according to the credited testimony he had been assured that help would be provided 26 Never theless convincing evidence establishes that on July 20 there was a serious breakdown at Parker s station 27 Parker himself confirms that Barbara Wicks the touchup person approached him concerning the blis tered parts Wicks disputes Parker s assertion that the problem was limited to the morning hours On balance Wicks who had no apparent reason to criticize Parker except for the work burden he placed on her clearly suggests that Parker had ignored the quality aspects of his job responsibilities that day That this was the case is confirmed by Respondents finishing reports for the week of July 15-22 These documents show that on July 15 and 20 the need for touchup work on the 25 inch cabinet was proportionately excessive in relation to the second shift and to Parker s performance during the bal ance of that period 28 In sum the credible evidence established that despite prior repeated counseling and with knowledge that he was not to load unsanded blistered parts Parker on July 20 did so in disproportionately large quantities creating a bottleneck The obvious propriety of issuing a discipli nary warning in such circumstances has not been over ridden by clear credible evidence and accordingly it is concluded that even if the General Counsel had substan tiated a prima facie case the Respondent has proven that Parker would have received the July 20 warning even if he had not engaged in union activity Accordingly the 8(a)(3) and (1) allegation in this respect shall be dis missed 25 Billy Gurley Respondent s quality control supervisor testified that during the relevant timeframe the majority of the units coming out of molding were blistered and the inability to control the problem in that department increased the line loader s responsibility to watch for blisters 26 There is no indication in this record that Parker s production rate had ever been criticized so as to create tension between his responsibility to maintain production on the one hand and his duty to ensure that bits tern are sanded out before a cabinet is loaded 27 Flora Reliford a former employee of the Respondent who worked primarily on the line load was called by the General Counsel in connec tion with two warnings issued to Parker including that related to the blisters She testified that Parish or Walls would come to her to instruct her to check for blisters and sand them She related that this would occur two or three times a day Although her testimony is somewhat garbled it appears that she claims to have loaded cabinets that required sanding down the line She relates that she never received a formal warning While I have doubts concerning the basic reliability of Reliford and con cern exists for the General Counsel s leading examination in material areas her account in no way suggests that she ever loaded blistered parts in a quantity comparable to that of Parker on July 20 nor does it appear that she created a type of backup in touchup that Parker produced that day Her testimony does not substantiate that Parker was a victim of dis parate treatment 28 See R Exhs 11 (a)-(f) 3 Parker s final warning and discharge On July 31 1987 Parker received a third warning which resulted in his discharge in accordance with Re spondent s established progressive system of discipline This warning was also based on Parker s having loaded a defective part The line loader in addition to his responsibility for lo cating and correcting blisters on the Sharp 25 inch cabi net has the responsibility for visually inspecting the cabi net to assure that a boss has been properly installed The boss is a polystyrene plastic tab which facilitates the manufacturers assembly of a protective backing to the television cabinet On this cabinet the bosses are affixed to the unit in the molding department This is accom plished by use of a bonding solvent called methyl ethyl ketone (MEK) The line loader s responsibility in this regard is two fold including investigation for both missing and loose bosses The latter are detected with the aid of a metal pin used by exerting a leverage type pressure to the boss to assure that it is secure Parker does not deny that these steps are to be exhausted before the cabinet is loaded onto the conveyor line Quality Control Supervisor Gurley testified that going back to February 1986 a special effort had been made to police quality problems on Sharp cabinets One of the problems singled out for correction on the 25 inch cabi net were missing bosses or bosses so loose that they would fall out Although supervisors had been instructed to pay special attention to the overall quality prob lems 29 by July 1987 Sharp reported rejections which reduced Respondents performance below the 95 percent rate set by Sharp for its vendors 30 Both reports reflect that cabinets were rejected because bosses were not glued properly Parker s final warning tied into this his tory it recited as follows Poor workmanship Failure to perform work as in structed Employee instructed to check for loose and missing bosses code spots blisters and blow off parts before hanging on conveyor Hung part without boss 31 Parker was not the only employee who received a writ ten warning for this reason during this timeframe 32 In fact Parker s discipline apparently was promoted by a written warning issued to a fellow employee on July 21 In the finishing department other than final in spection responsibility for inspecting for bosses is as signed to the line loader and the packer On July 21 Lois Wooten a packer was cited for having packed 1056 cabinet without boss 33 About a week later 29 See R Exh 9 Quality Reports from Sharp 30 See R Exhs 10(a) and (b) 31 See Jt Exh 4 32 Peggy Campbell apparently also a line loader was issued a written warning on July 20 for failure to follow instructions by not checking bosses prior to hanging part on line (See R Exh 6(ss )) On July 31 1987 molding department employee Connie Jenkins received a warning for failure to glue tab in cabinet (See R Exh 6(uu) ) 33 See R Exh 6 (it) MULAY PLASTICS Wooten caught the cabinet with Parker s initials and a missing boss at her packing station She reported it to Walls and Parish stating to Parish what are you going to do about it I got written up yesterday for it Parish being aware that this was Parker s third warning carried the cabinet to the personnel office Then Personnel Di rector Clifford Wade was unavailable that day Being aware that this was Parker s third warning and because Parish would never issue a final warning without con sulting with personnel retained the cabinet until he could talk with Wade Wade testified that the cabinet was brought to him on the day after it was found According to Parker about 3 20 p in on July 31 Parish told him to report to Wade s office At the office Wade showed Parker the cabinet which bore the initials S P When Parker was asked if those were his initials he said that they looked like they were his but he was not sure as anyone could put those initials on the cabi net Wade pointed out that the cabinet missed a boss and there was no evidence that one had ever been placed on it accusing Parker of putting the part on the line with out a boss After Parker was told that this was his third warning and would require termination he responded that he was sure that he did not let a part get by without a missing boss because this was one of the easiest items to detect He added that the bosses would fall off the cabinets frequently and would often not leave the mark on the cabinet In the course of this discussion Plant Man ager Terry Byrd entered the office whereupon Parker indicated that Wade was going to terminate him for find ing a boss missing from a cabinet that had been located a week earlier Byrd expressed that from the looks of the cabinet no boss had ever been there Byrd indicated that the decision was up to Wade Wade effected the dis charge 34 The General Counsel challenges the final warning on the following grounds 1 Employee testimony that they had missed bosses yet received no discipline 2 Employee testimony that bosses would fall out of the cabinets at various stages of finishing without leaving traces on the cabinets therefore suggesting the possibility that Parker did not improperly hang the cabinet in ques tion In this respect Johnny Newsome a spray painter re called that there was a time when he noticed many bosses falling out of the cabinets without leaving glue spots In other words he observed the boss fall out of the cabinet while leaving a smooth surface on the part It was his belief that two or three different grades of glue 94 Parker testified that he was told that the cabinet had been located a week earlier As indicated Wade related that the cabinet was located the day before Wade would not have had personal knowledge of when the cabinet was found As I understand the testimony of Parish based on re marks he attributes to Wooten and his own independent recollection he obtained possession of the cabinet on July 22 However Connie Jenkins who was responsible for failing to glue the boss on the cabinet that re suited in Parker s final warning also received a warning on July 31 That warning indicates that the offense was committed on July 28 See R Exh 6(uu) Based on this documented entry it is concluded that the cabinet would have been found on or shortly after July 28 although the delay in effecting the discipline is unexplained this factor would not tilt the scales in favor of finding that the warning was issued on unreasonable grounds 715 were used to secure the bosses 35 He avers that his ob servations concerning bosses falling out of the cabinet took place about 5 or 6 months prior to the hearing However he admits that this was not a common prob lem Newsome also testified that on one occasion when he worked on the load line position Parish approached him with a part stating that he was getting quite a few parts that did not have bosses advising Newsome to watch carefully for the bosses There is no evi dence that Newsome subsequently passed a bad part Employee Ethelean Falkner a gluer in the molding department testified that off and on during her entire employment she was responsible for gluing bosses to the cabinets She testified that when the glue is not mixed right and too watery bosses would fall off without leav ing a spot She testified that about 3 months earlier George Fesmire her supervisor brought a cabinet back with bosses missing and showed it to each gluer while advising all to watch our bosses more carefully She added that lately no warnings were issued to any of the gluers but stated that no cabinets had been returned during that period She acknowledged however that if he had to come back again if it s the same person or whatever you would get a warning In fact she ac knowledged that several years back she received a warn ing for missing bosses Laid off employee Flora Reliford testified that during her employment she worked primarily as an assembly line worker She related that bosses would fall out of cabinets three or four times daily and that sometimes no mark would be left on the cabinet 36 She also testified that Parish or Walls would come to her at least two or three times a day to instruct her to watch out for the bosses because they are missing or loose Reliford as previously indicated was not regarded as a reliable wit ness In any event considering the extensive leading by counsel for the General Counsel and the vagueness of her testimony I am not convinced that she was guilty of passing a cabinet on the heels of these instructions under conditions that would make a warning appropri ate Carolyn Crane a paint inspector agreed that bosses would fall out without leaving a mark on the cabinet She testified that on the 2086 Sanyo cabinet in the past they had experienced as many as 50 or more units in which the bosses had fallen out 37 In contrast with the sworn testimony of witnesses for the General Counsel I credit Quality Control Supervisor Gurley s explanation that once having reached the fin 35 James Hudson another employee called by the General Counsel was aware that MEK was used to secure the bosses to the cabinets He too testified that there were times when a boss would fall off and yet leave no mark on the cabinet 36 Rehford s testimony about the frequency with which this would occur in relation to those times when a mark would be left on the cabinet conflicted with her sworn pretrial affidavit 37 The General Counsel characterizes Crane s testimony as describing missing bosses In a broad sense this characterization might be accu rate but it was the thrust of Crane s testimony that the bosses had fallen out The distinction is not insignificant Although it is true that the line loader is required to administer pressure tests to the bosses there is no evidence that they have been disciplined or deemed responsible for bosses that fall out at subsequent stages of the finishing operation 716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ishing department it is not possible that a boss secured to a cabinet with MEK could fall off without leaving a mark on the cabinet Gurley credibly testified that MEK is not a glue but a polystyrene solvent that liquifies the carbon chains within the plastic in the boss and the plan tic in the cabinet In the drying process the two liquids merge to produce a single solid form The MEK is never blended at the plant but purchased from a vendor in sealed containers Ordinarily the MEK is applied in molding the cabinet is then placed on a cooling table for 30 to 35 minutes to give the boss an opportunity to adhere firmly After cooling the cabinets are packed and moved to a staging area where in the absence of an emergency they are held for an entire shift They are then transported to the line load operator for entry in the finishing operation 38 The testimony by finishing depart ment employees that they would observe bosses fall off cabinets without leaving a glue mark is rejected as en tirely improbable Indeed my belief of Gurley s testimo ny in this respect engenders a strong mistrust of much of the General Counsels evidentiary case and confirms that it was extensively founded on misunderstanding and false perspective The General Counsels testimony is also rejected as failing to establish that Parker s warning was a disparate act Even if believed the testimony of the Genral Court sel s witnesses lacked the specificity necessary to infer that Respondent used the disciplinary process-not to enforce quality consciousness-but because of its desire to eliminate a union supporter Moreover were I to find that on occasion an operator had passed a cabinet with a missing boss and that the omission had gone undisci plined in light of Respondents practice of issuing warn ings for such violations any exceptions would be regard ed as an aberration derived from diverse attitudes held by supervisors rather than any employee conduct pro tected by the Act In sum it is concluded that Parker would have received a third and final warning on August 31 even if he had not engaged in union activi ty 39 38 At the hearing the General Counsel was extended the opportunity on a posthearing basis to reopen the record for the purpose of producing expert testimony that would tend to refute the scientific basis for Gur ley s description of the MEK chemical process and its effect on the cabi nets It does not appear that the General Counsel has manifested an inter est in following up on this offer 38 As shall be seen the complaint alleges that Delores Bailey was also victimized by unlawful discrimination when she subsequently received a warning for neglecting to glue a boss in a cabinet At the time this task was her responsibility at the line loader position in the finishing depart ment The General Counsel supports the challenge to the Bailey and Parker warnings with a contention that Respondent did not take strong disciplinary measures against molding department employees for failing properly to glue or for omitting bosses from cabinets In this respect the General Counsel does not deny the numerous warnings bear inscriptions suggesting that they were issued for offenses similar to that involving Parker and Bailey As for Parker s testimony that he would find from 50 to 100 cabinets each day with missing bosses his testimony struck as highly exaggerated and unworthy of credence In any event assuming that it was true and that Respondent has a system for tracing cabinets reaching the line load position to particular molding department opera tors the General Counsels argument that Bailey and Parker were victims of disparate treatment would be neutralized by the numerous other in stances in which employees were disciplined because of this problem and without regard for union activity The General Counsel further argues that assuming the validity of the warnings issued to Parker discrimination is evident from the fact that the progressive system of discipline was not consistently enforced In this respect the General Counsel points to four instances where em ployees during a 12 month period received their third warning yet were not discharged A credible explana tion exists for each First in the case of Charles Wil liams it does not appear that he received three warnings A memorandum dated February 11 1984 concerning his involvement in a fight is merely a report of an incident There is no corresponding entry on a warning form and there is no evidence that under Respondents practice such reports were counted as formal disciplinary cita tions Consistent with this observation is the fact that the formal warning subsequently issued to Williams on April 23 1984 was listed as a first warning while that re ceived on May 17 1984 was listed as a second There was no further warning and hence Williams case does not establish a departure from the policy of terminating after three warnings With respect to Truette Hurdle al though the General Counsel conceded that the third warning in his case was withdrawn the General Counsel argues that this was done for no apparent reason However former Personnel Director Wade testified that Hurdle had been sanctioned improperly for leaving [his] work area without permission and smoking in restricted area It is the sense of Wade s testimony that this warn ing was improperly issued because Hurdle as a material handler had no designated work area and was at his work station if within the plant G C Exhs 5(f) and (g) The remaining incidents occurred during the tenure of Ronald Cannon who replaced Wade on September 28 1987 He testified concerning two employees who re ceived three warnings yet escaped discharge The first was Delores Bailey whose warnings in 1987 are the sub ject of the 8(a)(3) allegations in this complaint 41 Cannon testified that when he issued a warning to Bailey on Oc tober 14 1987 he was unaware that she had received a prior warning and accordingly marked it as a first warn ing Thereafter according to Cannon he discovered that Bailey had also received a warning on April 20 1987 When she received the third warning on October 21 he felt it would be unfair to discharge her told her so and appended the following to the warning According to past practice and policy the third warning letter is cause for termination It is my opinion that even though three letters have been written that Ms Bailey may have been aware of that fact and that termination is justified that my error may have caused some ambiguity and that the employee should not be terminated Discipline is designed to be corrective in nature not punitive This decision is being made on this in cident because of the special circumstances and should not be construde [sic] in any way as a change in policy or procedures This action shall 40 See Jt Exhs 5-6 MULAY PLASTICS not constitute precedents [sic] and shall have no ap plication to any past or future incidents 41 The second involved Jerline Pryor who also received three warnings within the 12 month period but was not discharged Her third warning however was issued by Cannon only 2 days after his employment with Respond ent began He testified that at the time he was unaware that Pryor had received other warnings This explanation is confirmed by Cannon s entry on the warning in ques tion which signifies that it was a first warning Accord ing to Cannon his error was attributable to the fact that the earlier warnings were not in her file at the time 42 Upon analysis it is my conclusion that the failure to terminate under the progressive system of discipline evi dent in these four cases was logically explained by Per sonnel Directors Cannon and Wade Based thereon it is concluded that Parker s situation was materially differ ent and that these extraordinary cases fail to offer a rea sonable basis for concluding that the three warning dis charge rule was disparately applied in his case Having considered all the evidence it is concluded that Respondent legitimately discharged Parker follow ing issuance of three formal warnings and that the action taken would have occurred even if Parker had not en gaged in any union activity Accordingly the 8(a)(3) alle gations in his case shall be dismissed C The Alleged Discrimination Against Delores Bdiley 1 Preliminary statement Bailey received disciplinary warnings on October 14 and 21 1987 Both are challenged as having been issued in reprisal for her union activity Before that time Bailey had been employed for approximately 8 years At all times material she worked on the first shift as a line loader under supervision of Dallas Walls Before the union campaign she had never received a formal warn ing Her activity on behalf of the Union included distn button of authorization cards to coworkers solicitation of signatures and the wearing of a union button since August 1986 In addition she was involved in three unfair labor practice charges that had been filed against the Company 43 2 The warning of October 14 This warning recited as follows Failure to perform acceptable work in a quality manner (drilling of pinholes on No 620 cabinet) 44 41 Jt Exh 6(b) 42 See R Exhs 12(a) (b) and (c) 43 In addition to the warnings under interdict of the instant complaint Bailey was examined about a warning she received on April 14 1987 In this respect her testimony revealed several important contradictions as well as an argumentative stance suggesting that she was prone to say anything to further her interest Bailey was not regarded as a trustworthy witness In sum because of my strong reservations concerning her credi bility the warning issued on April 20 1987 is not found to have been a reprisal for union activity or for that matter unreasonable 44 See Jt Exh 5 717 On October 4 Bailey confirms that an hour into the shift she was instructed to start drilling holes in cabinets on her line 45 Later a leadperson Scott Eldridge re turned parts to Bailey showing her that pinholes were missing Bailey who asserts that she did not initial her parts that day 46 avers that she explained that those parts probably had been loaded by the second shift prior to 8 am when she began drilling She insisted that she had abided by instruction and had drilled pinholes in all the cabinets Apparently an argument ensued with Eldridge insisting that she missed the holes to which Bailey re sponded somebody s lying because I know what I did At this point Eldridge got upset Later in the day El dridge summoned her to the office of Dallas Walls Ac cording to Bailey Walls told her that he would not give her a writeup because of this incident but cautioned that the next day she should be sure to drill the pinholes and put her initials on the part According to Bailey Walls agreed that because her initials were absent it could not be determined whether she had loaded the parts in ques tion Despite this she admits to having been told by Walls that she was wanted in the personnel office She reported there as directed where Ron Cannon allegedly accused her of being insubordinate to Scott Eldridge She advised Cannon that she saw nothing wrong in de fending herself when improperly accused Cannon indi cated that she had to be careful how she talked to the leadperson Bailey claims that she got upset and walked out of the room She avers that she returned to find that Cannon had already written her up not for insubordina tion but because of the pinholes Eldridge testified that on October 14 he learned that parts had reached the assembly area without holes drilled in them The operator who discovered the prob lem Freddie Dyer repeatedly showed him cabinets with this defect At first Eldridge relates that he believed that the problem involved just a couple of parts so he took them back to Bailey for drilling while reminding her that the part had to be drilled before it was hung on the line She indicated that she was aware of that fact Thereafter Eldridge claims to have made numerous trips to line load with undrilled cabinets The number of de fective units eventually reached a point where he had to load them on a buggy to return them to Bailey 47 Ac cording to Eldridge the problem continued after lunch with parts coming down the assembly line undrilled almost until quitting time 48 Contrary to Bailey Eldridge 45 Gurley testified that Bailey was assigned this task because the pin that is designed to perform this operation in the mold broke the day before It was determined that use of the line loader to drill the holes with a handdnll was the most economic means of correcting the prob lem 46 Though the line loader was required to initial all parts Bailey states that she did not have a marker and that when one was requested she was told that they had ran out 47 Bailey somewhat haltingly admitted that Eldridge used a cart car rying six or seven cabinets to return undrilled parts to her 48 Quality Supervisor Gurley offered a logical deduction about the reason for the breakdown at Bailey s station on October 14 He claims that production started that morning with skids that did not have drill holes but in the interim skids were delivered to Bailey s station that were produced before the pin broke and hence did not need to be drilled Continued 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD testified that there were identifying marks on the cabinet and that he knew for sure that her initials that afternoon were on the cabinets Eldridge indicated that he decided that it was time for a written warning because the prob lem persisted despite Bailey s being repeatedly warned Eldridge at the time the warning was issued could not recall that Bailey had offered any explanation about what had happened 49 Personnel Manager Cannon contrary to Bailey indi cates that the only comment that she made at the time she was issued the October 14 warning was that she just forgot He confirmed Eldridge s testimony that Bai ley s name was on the cabinets she loaded that day On the issue of disparate treatment Bailey testified that the day after she received her warning parts were being drilled in the assembly area She inquired why and was told by leadperson Gaither Tipler that this became necessary because Lee Jeffries another leadperson had failed to inform the line loader operator Jimmie Skelton that he was to dull the holes Bailey claims that when she asked if anyone had been written up for this Tipler responded not to his knowledge Dallas Walls how ever gives an entirely different explanation for this drill ing operation He relates that the operation had to be performed in assembly because the drill bit had broken at the load line allowing parts to get into the system from the night shift In order to maintain productivity there fore by keeping the production line moving another drill fixture was set up on assembly As indicated Bailey was regarded as an untrustworthy witness The clumsy inconsistent approach she imputes to Walls and Cannon seemed entirely unlikely during this period when repeated unfair labor practice charge filings would dictate a more cautious approach to employee dis cipline Instead the mutually corroborative testimony of Eldridge 50 Walls and Cannon is more consistent with because the hole was already in place Gurley offered that Bailey having observed the pinholes in place in that batch evidently quit inspect mg for that because when work resumed on cabinets molded after the pin broke They were hung directly on the line [allowing] the cabinets to get to the final inspection station where they were ready for pack and they were rejected 4a Bailey signed the warning but did not make any entry in the re marks section which plainly states that the absence of any statement on the part of of the EMPLOYEE indicates his/her agreement with the report as stated In light of Bailey s testimony regarding Walls alleged statement that she would not receive a warning for the pinholes and Cannon s limited concern for her insubordinate behavior toward El dridge it would seem that Bailey would have welcomed this opportunity to state her position While it is true that the warning does not recite that Eldridge had repeatedly warned Bailey concerning the incident Eldridge did not draft or sign the document And even if he had this omission is far less critical than Bailey s failure to proclaim innocence on the face of the warning Finally the General Counsel s posthearing brief argues that the warning states that she had not been previously warned This ap patently is a reference to a block on the document which I construe as designed to signal whether or not the employee had received past disci plinary warnings as distinguished from an attempt to elicit information whether the employee had been previously counseled as respects the in fraction involved See Jt Exh 5 50 Eldridge had issued and signed a warning on September 11 1987 for not drilling pinholes to Stanley Culifer who was terminated during his probation period in consequence and apparently without regard for union activity (See R Exh 7 ) documented fact seemed the more likely and is cred ited Based thereon it is concluded that Bailey neglected her work duties to a point warranting discipline irrespec tive of whether or not she had engaged in union activity The allegations of discrimination in this respect shall be dismissed 3 The October 21 warning The citation issued Bailey on the above date stated as follows Failure to provide a guality part and perform ac ceptable work results Failure to put in boss on a cabinet Model No 2138 51 The day before Bailey was working the line load on the 27 inch cabinet Her responsibility included gluing bosses on the cabinet checking bars blowing them off and hanging them On October 21 Walls approached her and took her to personnel Wade showed her a 27 inch cabi net pointed out her initials and indicated that one of the bosses was missing Cannon then indicated that he was giving her a warning because she had missed the boss Bailey claims to have defended herself by arguing that she knew I glued both of those bosses on that cabinet She added that her work practice would not permit such an error because she works with two bosses at a time and could not have placed one on the cabinet while leav ing one in the glue without detecting it 52 Bailey does not deny that the cabinet was hers that it lacked a boss and that there was no residual glue mark She insists however that from her position as a line loader or as a packer she observed bosses fall out with out marking the cabinet This argument proves too much It suggests that the process is so enshrouded with ambiguity that a missing boss could never be traced either to inaction by the operator charged with the duty of affixing it or to neglect on the part of those responsi ble for inspection Were that the case Respondent would be denied any fair basis for issuing discipline on this ground Yet the record shows that at least 22 written warnings had been issued to employees either for failure to glue a part or for passing a part with a missing boss 53 In any event I have credited the testimony of Quality Supervisor Gurley that interaction of the MEK with a cabinet would make it highly unlikely if not chemically impossible for a boss to fall off of a cabinet without leaving a mark 5 i See Jt Exh 6(a) 52 Bailey testified that she was told by management that the defective cabinet was found in quality control If true the cabinet with the missing boss would have had to been passed by a packer who would have had the responsibility for inspecting the part for that item She also testified that she was unaware of any other employee who received a warning based on the cabinet Any basis for arguing that Bailey was victimized by disparate treatment in that regard was refuted by the credible testimony of Walls that the part with the missing boss was discovered in the assent bly area at the inspection touchup position Under this version of the tes simony Bailey was the only person who could be deemed responsible for passing the cabinet 55 See R Exhs 3(c) 4(b) and 6(f) (g) (k) (r) (t) (u) (v) (ff) (u) (oo) (gg) (ss)-(yy) and (bbb) MULAY PLASTICS Based on the credited testimony it is concluded that the October 21 warning was in line with a widespread disciplinary pattern Numerous employees in the past had been disciplined in this fashion for either passing or fail ing to install a boss or tab It does not appear that Bat ley s case was any different and her union and other protected activity neither served to insulate her from dis cipline nor furnished an explanation for the causation underlying the action taken against her in this instance In sum the credible evidence establishes that the Octo ber 14 warning would have issued even if Bailey had en gaged in no conduct protected by the Act The 8(a)(3) and (1) allegation in this respect shall be dismissed 54 CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com coerce within the meaning of Section 2(6) and (7) of the Act 2 United Rubber Cork Linoleum and Plastic Work ers of America AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 64 Although the General Counsel argues that Bailey s history of having filed three prior unfair labor practice charges against the Respondent was part of the contributing motivation the complaint is devoid of an 8(a)(4) allegation 719 3 The Respondent did not violate Section 8(a)(3) and (1) of the Act by issuing disciplinary warnings to Sammie Parker and Harmon Mannon Jr on May 15 1987 to Sammie Parker on July 20 and 31 1987 or to Delores Bailey on October 14 and 21 1987 or by dis charging Sammie Parker on July 31 1987 4 The Respondent did not refuse to bargain in good faith in violation of Secions 8(a)(5) and (1) and 8(d) of the Act by implementing any work rule on or about May 1 1987 which represented a departure from its past practices On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed55 ORDER It is recommended that the complaint be dismissed in its entirety 55 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 put poses