Armour Con Agra

962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Armour Con Agra and United Food and Commercial Workers International Union, AFL-CIO, CLC Case 18-CA-9740 November 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 6 1988 Administrative Law Judge Timothy D Nelson issued the attached decision The Respondent filed exceptions and a supporting brief and the Charging Party filed a brief in oppo sition to the Respondents 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 conclusions2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law ' The Respondent has excepted to som of the judge s credibility find rags 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 In its exceptions the Respondent contends that the judge erroneously found the statements of Supervisors Crandall and Gaiser that employee Lauritsen was transferred because of his union activities to be violations of Sec 8(a)(1) because these statements occurred outside the 10(b) period This contention first raised in the Respondents exceptions is untimely and thus has been waived by the Respondent Federal Management Co 264 NLRB 107 (1982) In any event even if we were to find merit in the Respondents contention these 8 (a)(1) findings are cumulative and do not affect the judge s recommended Order As we adopt the judge s finding that the Respondent violated Sec 8(a)(l) by Supervisors Crandall s and Balek s statements to employee Wolf that the Respondent took its adverse actions against Lauritsen be cause of his union activities we find it unnecessary to pass on whether Supervisor Crandall s conversation with employee Shnever was a sepa rate 8(a)(1) violation as any finding of a violation would be cumulative In his decision the judge inadvertently referred to Supervisor Jeffrey Youngblood as Youngblut 2 Although we do not condone employee Lauritsen s attempt to break into the nurse s office for medication and do not view this asserted reason for the Respondents suspension and discharge of Lauritsen as merely pretextual we nevertheless find in agreement with the judge that the suspension and discharge were violative of Sec 8(a)(3) and (1) of the Act Under all the circumstances here including the Respondents animus the judge s finding that what Lauritsen attempted to do was a common practice by employees and the related independent 8(a)(1) vio lations found by the judge which we affirm we find that the General Counsel made a prima facie showing that Lauritsen s union activity was a motivating factor in his suspension and discharge and that the Respond ent has failed to demonstrate that it would have taken the same action against Lauritsen in the absence of his engaging in union activity We note in particular that the Respondent has not discharged employees who engaged in misconduct considered by the Respondent to have been com parable to Lauritsen s attempted bypassing of the lock i e actual theft judge and orders that the Respondent Armour Con Agra Inc Mason City Iowa its officers agents successors and assigns shall take the action set forth in the Order Robert H Johnson Esq for the General Counsel Patrick J Barrett Esq of Omaha Nebraska for the Re spondent Peggy A Hillman Esq of Chicago Illinois for the Charging Party DECISION STATEMENT OF THE CASE TIMOTHY D NELSON Administrative Law Judge United Food and Commercial Workers Union (Union) filed original unfair labor practice charges against Armour Con Agra (Respondent) on July 22 1986 and filed amended charges on August 8 1986 The Regional Director for Region 18 investigated and on July 28 1987 issued a complaint alleging that Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act Respondent answered denying any wrongdoing I heard the case in trial at Mason City Iowa on September 9 10 and 11 1987 The complaint alleges that Respondent violated Sec tion 8(a)(3) when it took three separate actions against its employee Chris Lauritsen in 1986-transferring him to the graveyard shift on February 10 suspending him on July 18 and firing him on July 25-all because of his union activities The separate 8(a)(1) counts are related to the 8(a)(3) counts all but one of them commonly allege that certain company supervisors told employees that another employee [i e Lauritsen] had been trans ferred [or suspended or discharged ] because the other employee had engaged in union activities On the whole record including the briefs filed by each of the parties on my assessments of the witnesses and of the inherent probabilities I make these FINDINGS OF FACT I OVERVIEW The Respondent a corporation with head offices in Omaha Nebraska operates a number of meat plants around the country The one that concerns us is a pork processing and packing plant in Mason City Iowa where Respondent employs more than 250 nonsuperviso ry production and maintenance workers to staff the plant s three daily workshifts The Union overtly began a first plantwide organizing campaign among Respondents Mason City employees in May 1984 The campaign eventually resulted in a repre sentation election held under Board auspices on Novem ber 7 1985 2 which the Union lost The Union began a new organizing drive in earnest in the latter months of 'In 1986 Respondent sold and shipped from that plant more than $50 000 worth of products directly to customers outside Iowa 2 Case I-RC-1828 291 NLRB No 134 ARMOUR CON AGRA 963 1986 and received a majority of ballots cast in a second Board election held on February 26 1987 3 Lowell (Chris) Lauritsen now 50 years old was hired in December 1983 when Respondent first acquired the Mason City plant he worked as a maintenance mechanic until Respondent fired him on July 25 1986 Over the course of his employment he worked under at least three different maintenance supervisors (sometimes called foreman on this record)4 who reported in turn to Plant Engineer Edward Wiss (or sometimes to Wiss assistant Charles Curran) As Respondent concedes Lauritsen was widely known to company agents as the Union s principal in plant spokesman 5 On February 10 1986 Wiss transferred Lauritsen from the second shift to the third or graveyard shift The prosecutions view is that this was done to isolate Launt sen from the majority of his fellow workers and thus to minimize his ability to proselytize on behalf of the Union in a second organizing campaign Wiss denies this claim tmg that he was moved by nothing more than a desire to best serve the plant maintenance needs consistent with the considerations that he had outlined in a memorandum to his supervisors roughly 2 months earlier On July 18 1986 Respondent suspended Lauritsen then fired him on July 25 following an internal investi gation ostensibly because during the early morning hours of the July 12-13 graveyard shift Launtsen had tried to break in to an unoccupied plant office used during the first and second shifts by the plant nurse Lauritsen who admits that he intended to jimmy the door lock of the office with a credit card insists that his only purpose was to get some Tylenol from a first aid kit maintained in the office Launtsen also claims and his claim is corroborated that the lock in question was noto nously insecure and that other employees had also slipped the door lock on occasion to enter for innocent 3In that case (18-RC-14052) Respondent filed objections to the con duct of that election and a Board hearing officer recommended that the objections be overruled I take notice that the Board recently overruled Respondent s objections and certified the Union as the employees repre sentative See Armour Food Co 288 NLRB 1 (1988) 4 Respondent admits that the maintenance supervisors in question are supervisors within the meaning of Sec 2(11) of the Act 5 During the 1984-1985 organizing drive Lauritsen headed the Union s in plant organizing committee he conducted many organizing meetings at his home when Respondent mounted its own countercampaign Laur itsen used the opportunity presented by company sponsored speak-out meetings to argue the Union s case Respondents managers and supervi sors uniformly acknowledge their awareness of Lauritsen s central role for the Union Even before becoming publicly identified as the head of the Union s in plant organizing committee Lauritsen had become known to company officials as a union activist through a feature article in the Des Moines Sunday Register published in February 1984 which was widely discussed at the Mason City plant The Sunday Register article headlined Six years after lockout Spencer union battles for jobs had reported incidentally that Launtsen had been the president of one of the Union s locals at a meat processing plant in nearby Spencer Iowa a plant known in the area as Spencer Beef whose closing in 1977 had trig gered much industrial strife as well as protracted litigation before the Board See Spencer Foods 269 NLRB 183 (1984) enfd 768 F 2d 1463 (D C Cir 1985) The article had focused on two related themes first the Board s delays in deciding the case (quoting various public officials in eluding then Board Chairman Dotson about the reasons for the delays) second the impact of those delays on the former Spencer Beef workers affected by the case (citing prominently the financial and personal diffi culties experienced by Lauritsen and his family while awaiting the out come of the Board litigation) purposes The agents of Respondent who figured in the decision to suspend and fire Lauritsen generally deny that they were aware of any practice by employees of jimmying the door lock In any case they claim they did not believe that Launtsen s purpose was as innocent as he has always maintained rather they concluded that his real purpose was to obtain employment records also stored in that office and to use them for union organiz ing The General Counsel argues that Respondent seized on Lauritsen s alleged break in attempt as a pretext for ridding itself of an unwanted union activist Three employees (one of them being Lauritsen) testi feed that three different maintenance supervisors (David Crandall Steven Gaiser and Ted Balek) variously ex pressed their belief that the real reason Respondent trans ferred Lauritsen in February and suspended and fired him in July was Lauritsen s union activism For reasons detailed elsewhere below I substantially credit the em ployees accounts of the supervisors remarks even though they are disputed to some degree by each super visor Moreover I find that such supervisory statements independently violated Section 8(a)(1) of the Act without regard to whether the supervisors perceptions of Re spondent s treatment of Lauritsen were accurate The 8(a)(3) counts-particularly those involving Laur itsen s suspension and discharge-raise questions that cannot fairly be answered simply by relying on the opin ions expressed by the supervisors rather they require a thorough understanding of an often confusing array of surrounding facts and circumstances in order to assess Respondents true motivations in each case I conclude ultimately applying a Wright Line analysis 6 that the su pervisors were right-that Launtsen s union activities were in fact a substantial motivating factor in Respond ent s transfer suspension and discharge of him and that Respondent failed to demonstrate that it would have taken the same actions against him had it not been for his union activities A Lauritsen s More Recent Union Activities Company Knowledge In the 2 months following the Union s November 1985 election loss Launtsen and some other employees had openly solicited roughly 25 new authorization cards for the Union apparently intending more to keep the union ization issue alive at least symbolically than to use the cards as support for a new petition for a second election which under established law could not be conducted until a year had passed since the first election Other than that Launtsen s inplant union activities had been minimal in the roughly 8 months between the Union s first election loss and the point when he was fired On the night of July 17 however only hours before he was suspended for his attempted break in Lauritsen had talked with a fellow employee about scheduling a meet ing at his home in the following week to kick off the second organizing campaign As they were concluding 6 Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cent denied 455 U S 989 (1982) see also NLRB Y Transportation Management Corp 462 U S 393 (1983) (approving Wright Line tests) 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this discussion a supervisor had descended nearby stairs and greeted Lauritsen and the other worker It is possible that the supervisor overheard Launtsen s remarks about a union meeting before his presence in the stairwell became evident to the two employees but it would be unduly speculative to assume that he did Nei ther is there any independent evidence that Respondents management level officials had become aware at any point before they suspended and then fired him that Lauritsen was about to begin a new organizing drive in earnest On the other hand Launtsen s solicitation of new authorization cards in the 2 months following the 1985 election clearly signaled that the Union was gearing up for a new organizing drive looking toward a new election when the requisite year since the last one had elapsed and also signaled that Lauritsen would continue as the Union s inplant ramrod in such a new campaign Indeed management witnesses acknowledged-and Re spondent s counsel reinforces the point on brief-that their general awareness of Lauritsen s conspicuous role as a union advocate caused them to take special pains in their handling of Lauritsen s suspension and discharge in July including much consultation with corporate labor relations officials in Omaha Accordingly I presume for all purposes that company officials still thought of Laur itsen from January to July 1986 as the Union s main in plant advocate but that their actions against Lauritsen in July were not informed by any specific knowledge of his recent plans to conduct a new series of organizing meet ings at his home B Company Animus Outside the 10(b) Period The parties devoted considerable litigation and briefing energy to the issue of Respondents animus against Laur itsen during periods somewhat remote from the events in 1986 which are the targets of the complaint Thus the General Counsel and Charging Party argue that a pat tern of animus-even arguably unlawful discrimination- had become evident in Respondents treatment of Launt sen as early as June 1984 7 One prosecution claim is that Wiss had singled out Lauritsen for special disciplinary scrutiny because of his union activities another is that Wiss repeatedly attempted to downgrade the periodic performance appraisals prepared by Lauritsen s foremen As to the claim that Wiss singled out Lauritsen for dis cipline the record shows in fact that Wiss caused a warning notice to be issued to Lauritsen in July 1984 and simultaneously transferred him from the second shift to the first shift This is what the warning notice pre pared by Wiss but signed by Supervisor David Zimmer man stated in pertinent part Lauritsen has been spending too much time talking with production workers and not keeping himself busy with maintenance work This activity will stop or further action will be taken me Since no unfair labor practice charge was filed about those actions within 6 months of their occurrence Sec 10(b) of the Act operated to bar the General Counsel from attacking them in the complaint To the extent these matters were litigated it was for their arguable back ground relevance in accordance with established legal principles Jo- seph s Landscaping Service 154 NLRB 1384 fn 1 (1965) chanic placed on 1st shift to help work prefor mance [sic] and troubleshooting skills improve thru training and closer supervision Supporting the inference that antiunion hostility in formed Wiss actions concerning the warning slip is the testimony of former supervisor David Crandall who al though no longer in Respondents employ at the time of the trial was called by Respondent to rebut certain other testimony offered by Lauritsen and other employees Crandall quotes Wiss as saying in the first half middle of 84 whenever that Lauritsen was handing out union cards and we want him busy and we want him in his work location at all times and keep an eye on him make sure he isn t congregating around talking to groups and document anything out of the normal then we could take disciplinary action Wiss never specifically denied having made the remarks quoted by Crandall As to claims that Wiss sought to downgrade super visors evaluations of Launtsen the prosecution cites Lauritsen s testimony about statements made to him by both Supervisors Crandall and Zimmerman at various points between June 1984 and January 1986 This is what Lauritsen recalled from the witness stand In June 1984 Zimmerman told him that Wiss had ordered Zimmerman to downgrade an evaluation for Lauritsen that Zim merman had already prepared because they had identi fled me as an organizer for the Union and that if I had a bad evaluation it would be easier to get rid of me later on Zimmerman also told Lauritsen that Zimmerman had eventually refused to sign an evaluation that Wiss himself had scripted after being dissatisfied with Zim merman s attempt to rewrite something to conform to Wiss expectations Separately in January 1986 Crandall told Lauritsen that the evaluation that Crandall had dust prepared was not as good as you deserve but its as good as its going to get by Ed Wiss Later Crandall told Lauritsen that that evaluation didn t even get by that Wiss had fired it back at Crandall with instruc tions to get the numbers up (numbers referring to a de merit system) No one called Zimmerman to testify As Lauritsen ac knowledged Zimmerman had not been employed by Re spondent for quite a long time and Lauritsen had been mostly supervised until his February 1986 shift transfer not by Zimmerman but by Crandall whom Respondent did choose to call as its witness even though Crandall too had been terminated by Respondent before this case was tried Crandall s testimony as a whole reveals that he suspected that management had been out to get Laur itsen since the 1984 union campaign Nevertheless ques tioned by Respondent whether he had ever made state ments to this effect to certain employees he consistently replied that he did not recall having done so even while being quick to volunteer that he could have made such statements simultaneously insisting that if he had made any such statements he was only offering his personal thoughts He also made clear moreover that neither Wiss nor anyone else in management had ever specifically told him to doctor Lauritsen s evaluation be cause of his union activities He also denied that anyone ARMOUR CON AGRA 965 had ever specifically ordered him to get the numbers up on Lauritsen s evaluations In fact Crandall s admit ted belief that Respondent s managers were on the look out from early on for Chris traced exclusively from Wiss remarks in 1984 quoted earlier I will not find it necessary to determine whether Re spondent acted unlawfully towards Lauritsen outside the 10(b) period For one thing if it was necessary to decide such questions it would be hard to do so for the record is either vague or contradictory or equivocal on many issues of fact surrounding those two matters 8 And even if I were to treat the background discrimination issues as having been fully litigated and were then to engage in a full blown 8(a)(3) analysis and were then to find that Respondent had acted unlawfully in either or both in stances I could not properly find those other crimes or wrongs to be dispositive in deciding the issues that were noted for litigation by the complaint 9 In short the main purpose of considering the background evidence is not to determine whether Respondent broke the law in its earli er treatment of Lauritsen but only to determine whether Respondents agents harbored hostile motives and inten tions towards Lauritsen because of his union activities in that period Wiss status and function in Respondent s management made him someone whose out of court statements were properly receivable as nonhearsay admissions of a party under Rule 801(d)(2)(D) Federal Rules of Evi dence Crandall s first hand testimonial account of Wiss remarks in 1984 plainly is competent to prove a direct admission by Wiss that he resented Lauritsen s union or ganizing activities and hoped to curb them If I credited Launtsen s account of Zimmerman s and Crandall s re ports to him about Wiss downgrading activities I might also treat those supervisory statements to Launt 8 The appraisals of Lauritsen which found their way into Respondent s permanent personnel records are in general mildly favorable in only few instances are they critical and then hardly in damning terms Cran dall clearly believed that Wiss was improperly fiddling with Crandall s appraisals of Launtsen but his testimony is too generalized to ascertain even which specific appraisals Crandall was talking about much less to understand how his own initial appraisals of Lauritsen may have been significantly altered in the final product approved by Wiss Indeed the record will not permit a judgment whether Lauritsen s appraisals would have looked any different if he had not been a union activist As to the 1984 warning slip the circumstances are more suspicious but the record contains no details about the specific conduct by Launtsen (if any) that caused Respondent to issue that warning Thus it would be difficult for me to find either that the warning slip was prompted by some abuse of company time on Lauritsen s part (as alleged in the warning slip itself) or (as might be inferred from Crandall s testimony) that it was prompted by and reflected an unlawful overreaction to some protected activity on Launtsen s part As I ultimately conclude however at least for the limit ed purpose of finding animus the record s vagueness on these latter points is most properly chargeable against Respondent given the prima facie indications that the 1984 warning slip and shift reassignment stemmed from Wiss resentment of Lauritsen s union activities 9 We must bear in mind that the background evidence was offered to show animus a somewhat elastic notion that probably is best under stood in the present context as the kind of evidence that may be received as an exception to the general rule that bars proof of other crimes or wrongs to prove that Respondent was guilty of similarly unlawful acts herein that is the type of exceptional evidence that may be received under Rule 404(b) Federal Rules of Evidence for the limited purpose of showing that Respondent possessed motive opportunity intent prepara tion plan knowledge regarding the actions against Lauritsen in 1986 that are targeted by the complaint sen as admissions under rule 801 10 Launtsen s tests mony arguably deserves less weight however not only because of his personal stake in the outcome nor because he is in part contradicted by Crandall but because even if Lauritsen s testimony here were credited what those supervisors told Launtsen was not shown to have been linked to any direct statement by Wiss implying antiun ion motives for altering Lauritsen s appraisals With these considerations in mind I give the greatest weight to the following factors in concluding that Re spondent s agents were historically ill disposed towards Launtsen because of his union activities first is Cran dall s uncontradicted testimonial account of his 1984 con versation with Wiss second is the 1984 warning slip issued to Launtsen and Wiss simultaneous reassignment of Lauritsen to the first shift third is Respondents fail ure to adequately detail or explain the facts surrounding those actions against Launtsen in 1984 Wiss 1984 re marks to Crandall imply that Wiss had singled out Laur itsen for special scrutiny because of his union activities had issued instructions calculated to discourage Launt sen s in plant contacts with other employees was more than normally disposed to document any arguable fail ings by Lauritsen and was moreover disposed to use shift reassignments for punitive purposes As I show next these inferences are reinforced by the evidence sur rounding Respondents actions against Lauritsen in 1986 which the complaint directly attacks 11 ALLEGED UNFAIR LABOR PRACTICES A Lauritsen s Transfer to Graveyard Shift 1 Relevant background company practices With irrelevant exceptions plant production occurred only on the first and second shifts and those shifts em ployed the largest numbers of employees The graveyard shift was basically a maintenance operation employing a skeleton crew of eight mechanics who cleaned and per formed minor repairs on idle production equipment Lauritsen had never before worked on graveyard al though as noted above he had been previously reas signed from second to first shift (and then later back to second shift where he was working when he was reas signed to the graveyard shift) When Wiss transferred Launtsen to the graveyard shift on February 10 1986 he simultaneously switched a less senior mechanic Paul Scholl from graveyard to Launtsen s second shift slot Graveyard was commonly regarded as the least desira ble shift So far as this record shows until Lauritsen s transfer graveyard was staffed by the least senior me chanics 11 Similarly so far as this record shows no em 10 In this regard I find that when the supervisors told Lauritsen what Wiss had said they were making statement [s] by [Respondents] agent or servant concerning a matter within the scope of [their) agency or em ployment within the meaning of Rule 801 (d)(2)(D) " Lauritsen credibly testified consistent with this point he was in a fair position to know given the length of his employment at the plant Other employees also expressed in one way or another their perception of a practice whereby graveyard shift assignments were reserved for junior employees Moreover Respondent in the best position to know Continued 966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployee had ever before been transferred from an existing first or second shift assignment to the graveyard shift except temporarily to cover the absence of a graveyard employee due to illness or scheduled vacation And I note also in this regard that Wiss seemed suspiciously un willing to be pinned down about the Company s prac tices respecting shift transfers even when questioned by Respondents attorney on the subject Thus asked by company counsel How often do you make shift changes? Wiss replied We try and minimize the number of shift changes but we make them as often as required to cover the production needs Respond ent s counsel then pressed further asking How many shift changes have you made since [December 1983]? Wiss answered I wouldn t even know without having to go back through all the records [T]here are times when people are moved to a shift for a couple three weeks to cover for somebody who would be on vacation I can t recall all the shift changes and try and put together an accurate number The record never became any clearer although it was obviously within Respondents power to make it more clear had it wished to do so If there had been precedent for Lauritsen s reassign ment to the graveyard shift I would have expected Re spondent plainly to prove it rather than merely to rest on Wiss misty and inconclusive generalizations With the record in this posture I Tina that Lauritsen s transfer to the graveyard shift was a unique occurrence in the history of the Company s Mason City operation 2 Wiss asserted reasons for transferring Lauritsen In reassigning Lauritsen to the graveyard shift Wiss claimed to have been moved by considerations of effi ciency that he had earlier spelled out in a manning changes memorandum to Plant Manager Donald Clark dated December 6 1985 That memo stated in pertinent part as follows To D G Clark From E R Wiss Subject Manning Changes I am aware of mechanics who are not presently being used to their full potential simply due to their job assignment on the manning schedule Some people are simply allowing their talents to remain unused due to their job assignments while others demonstrate a need for additional growth and train ing To best serve the plant maintenance needs I must advise you that I plan to change the manning schedule to best fit the individuals talent to the job assignment This is an ongoing task The area of prime concern is third and second shift Third shift is the one with the most general work assignments available Plans are to move two mechanics from third shift to a better suited job as and to offer proof on these salient points failed to demonstrate that graveyard had ever before been staffed by mechanics who were senior to those working on first or second shifts signment and assign two other mechanics to third shift allowing them better training and growth op portunity Listed below are candidates being consid ered for these changes with final selection being re served until additional performance of new employ ees can be observed Persons best suited for third shift jobs seem to be Tom Dempsy Chris Lauritsen Bob Echelbarger Don Barker Persons best suited for second shift jobs seem to be Scott Scholl Paul Cavin Both Paul and Scott have two year college de grees for skill not presently being taken advantage of Paul s experience with scales and electronic equipment repairs imply a skill that will not be fully utilized on third shift Some additional job assignment changes internal to second shift are being considered /s/ E R Wiss Plant Engineer Manager Elaborating on his memorandum in testimony Wiss stated (in the kinds of blandly circular terms that were characteristic of his testimony throughout these proceed ings) that Mr Lauritsen s skills were more of a kind of jack of all trades skills and would be best suited for that type of an operation and production coverage needs he was experienced in many and master in none he definitely lacked electrical trouble shooting skills By contrast said Wiss third shift mechanics Scholl and Cavin both had some training in electrical and electronics and our packaging equipment has become sophisticated enough that I thought that would be very helpful in that area Recalling that in 1984 he had urged Lauritsen to take an electronics course at NIACC (a local community college) Wiss stated that he had no documentation that Lauritsen had ever fol lowed through In evaluating Wiss explanations I note the following additional facts and circumstances First Wiss never sought the opinions of Lauritsen s nor Scholl s supervisors before making the shift switch he merely advised them of his imminent intentions As findings elsewhere reveal Crandall Lauritsen s then su pervisor found this both unusual and suspicious given Wiss lack of day to day familiarity with the workers whom he intended to switch Second Wiss was either untruthful or remarkably ig norant of the contents of company records that he was admittedly involved in preparing when he claimed that he had no documentation that Lauritsen had ever fol lowed through on advice to take an NIACC course Lauritsen did in fact take such a course more impor tantly his August 1984 appraisal contains a specific nota tion that Lauritsen had inrolled [sic] in elect coaurse [sic] at NIACC starting Sept 6 1984 and his Decent ARMOUR CON AGRA 967 ber 1984 appraisal in a space in which the appraiser is instructed to comment How well have past goals (ob jectives) been accomplished expressly notes that Laur itsen had taken a course in adult education to help him understand electricity Third while Lauritsen s two 1984 appraisals contain suggestions in a portion captioned areas for improve ment that he receive further education or training in electrical work the counterpart portion in his Decem ber 1985 appraisal (i e the one written at roughly the same time Wiss wrote the memo justifying his desire to move Lauritsen and others to the third shift ) makes no mention of any further need on Lauritsen s part to be trained or schooled in electrical systems Accordingly Wiss claim that in February 1986 Lauritsen still dell nitely lacked electrical trouble shooting skills is implic itly inconsistent with a nearly contemporary evaluation of him which for the first time fails to record any rec ommendation that Lauritsen improve his understanding of electrical systems Fourth I recall that Wiss had ostensibly transferred Lauritsen in 1984 from the second shift to the first shift to help work preformance [sic] and troubleshooting skills improve thru closer training and supervision (emphasis added) Because Wiss had subsequently allowed Laurit sen to be reassigned back to the second shift it is a fair inference that Wiss then believed that Lauritsen s trou bleshootmg skills had in fact ceased to be an issue making it even harder to credit Wiss claim at trial that Lauritsen still definitely lacked troubleshooting skills Fifth Respondent never sought to provide any factual detail for Wiss conclusionary testimonial claim that third shift mechanics Scholl and Cavin possessed some background in electrical work (or as Wiss put it with equal vagueness in his written memorandum-that Scholl and Cavin had two year college degrees for skill not presently being taken advantage of) Accordingly it is hard to test Wiss statements in this regard and equally hard to understand why Scholl and Cavin were better qualified for second or first shift work than Lauritsen the only one of the three who was shown to have com pleted a relevant college course in electrical systems Sixth although Wiss claimed in his memorandum that both Scholl and Cavin were best suited for second shift jobs (and that three other mechanics besides Lauritsen were best suited for third shift jobs ) and that his plans [were] to move two mechanics from third shift (emphasis added) the only action that Wiss actually took in February was to switch Scholl and Lauritsen He did not simultaneously transfer any other mechanics whom he had identified as being best suited for third shift In stead Cavin was not reassigned from the graveyard shift until substantially later-and then only to take the place of a second shift mechanic who had terminated (not as in Scholl s switching with Lauritsen to displace a me chanic already working on an earlier shift) Moreover when Cavin was eventually moved from graveyard to fill what Wiss called a vacancy on the second shift he was not replaced on third shift by one of the other me chanics listed on Wiss memorandum as best suited for third shift jobs Rather a mechanic was newly hired to fill the graveyard shift vacancy created by Cavin s de parture 12 3 What the foremen said to employees Lauritsen believably testified that he first received news of his imminent transfer from his then supervisor Crandall who stated to him They said they need your skills on the third shift but we know that s not the reason we know it s because of your union activity Called by Respondent Crandall could not recall any such conversation with Lauritsen but also added I in sure maybe I did but I don t recall what it was about His answers were similar when asked if he had made any such remarks to other employees specifically Douglas Wolf 13 Thus he replied I don t recall it but I in not denying that I did say it I could have I don t swear that I did Given Lauritsen s seeming candor Crandall s equivocations and Crandall s admitted general belief that Respondent had been on the lookout for Chris from early on due to his union activities I have no hesitancy in finding consistent with Lauritsen s testi monv that Crandall gave voice to his belief that Laurit sen s union activities had caused Wiss to transfer him Employee James Sheeley testified that shortly after Lauritsen s transfer he asked his supervisor Steve Gaiser what Gaiser thought about the transfer prompt mg Gaiser to reply Due to his union activities he brought it on himself Employee Douglas Wolf was also well known to com pany management as a supporter of the Union (he became the head of the inplant organizing committee after Lauritsen s discharge) Wolf recounted several con versations with Supervisor Gaiser that bear on Laurit sen s transfer to the graveyard shift 14 I regard as the most significant aspect of his testimony for present pur poses Wolf's description of a relatively recent event an event that Wolf divulged only after being pressed on cross examination by Respondents counsel why Wolf 12I will not detail bliss attempts to rationalize these related curiosi ties in general I found them improvised in tone lacking in convincing detail uncorroborated by available documentation and in the end still largely inconsistent with his own comments in his original memorandum of justification The central point to be made here-never rebutted by Wiss-was that Wiss eventual assignment of Cavin to fill a vacancy on the second shift and his hiring of a new employee for the graveyard shift to fill the vacancy created by Cavin s reassignment seems indistinguish able from what everyone otherwise said was traditional practice- to re serve graveyard for the least senior employees Thus the eventual reas signment of Cavin can hardly be seen as an exercise in implementation of bliss overall manning changes scheme as set forth in his December memorandum 3 In fact employee Wolf never testified to having had any such con versation with Crandall only with Supervisor Gainer as reported else where below 14 Wolfs accounts appeared to involve some degree of confusion Thus he claimed that he had virtually the same conversation with Gainer on two different occasions ( Now that Chris is out of the way I don t think you have very much to worry about ) According to Wolf Gaiser first said this in February after Lauritsen s shift transfer then again 6 months later after Lauritsen s suspension or discharge If a specific find ing were necessary I would find it more likely that Gaiser made this statement to Wolf only once in July concerning Lauritsen s suspension and discharge Because it would be merely cumulative however and would not affect my ultimate recommendations respecting the remedy I deal no further with these features of Wolf's testimony 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD believed that Wiss was disposed to use transfers to the third shift for punitive purposes In response Wolf de scribed a conversation with Gaiser that had occurred within the 3 months preceding this trial during which Gaiser had reported to Wolf as follows Gaiser had been present in Wiss office when Wolf's foreman Youngblut told Wiss that he wished to transfer Wolf because Wolf was talking to employees Wiss replied according to Gaiser s report to Wolf We 11 put him on third shift so he can t talk to anybody because he might influence them on the Union Gaiser then suggested to Wiss and Youngblut that Wiss proposal would probably cause trouble because of how people were feeling because of the Union (Elsewhere Sheeley s testimony shows that some mechanics were upset over Lauritsen s having ear her been transferred to graveyard and had raised the issue during a speak up meeting with their foreman Youngblut )15 As a consequence so Gaiser confided to Wolf a decision was made instead to transfer Wolf to the dry sausage department where only five people work on the second shift Called by Respondent as a witness Gaiser denied ever having told employees that Lauritsen had been trans ferred (or suspended or fired) because of his union ac tivities He vaguely acknowledged that he had been present (as an innocent bystander he insisted) when some of the employees had expressed such opinions but he stated that he dust ignored such remarks I was not impressed by Gaiser s demeanor his attempts to distance himself as a mere bystander seemed especially lacking in candor and I would credit the testimony of Sheeley that Gaiser himself stated that Lauritsen s union activities had caused Wiss to move him to the graveyard shift Moreover Respondent never asked Gaiser (nor Wiss) to comment on Wolf's testimony about what Gaiser had di vulged concerning the more recent meeting in Wiss office where Wiss had proposed to move Wolf to the third shift so that he could not influence employees concerning the Union 4 Concluding findings I have little difficulty in finding a prima facie case for the proposition that Lauritsen s union activities mflu enced Wiss decision to transfer Lauritsen to the grave yard shift Supervisors Crandall and Gaiser told employ 15 Sheeley s testimony about Youngblut s remarks in the speakup meet ing form the basis for an independent 8(a)(1) count in the complaint-that Youngblut threatened an employee with unspecified reprisals if the em ployee supported or engaged in activities on behalf of the Union Thus Sheeley testified that during a speakup meeting held shortly after Lauritsen s transfer a mechanic voiced concern to Youngblut about the Company s policies regarding the role of seniority in assignments to the third shift Youngblut made a note to himself to follow up on this in quiry At the conclusion of the meeting according to Sheeley Youngblut dismissed the crew jokingly adding words to the effect If you don t watch what you re doing or mess up you 11 be on third too Youngblut denied ever having made such a remark I do not find it necessary to re solve the credibility dispute because even if I were to credit Sheeley on the point I think it would involve a strained interpretation of these events to presume that Youngblut s joking remark would be seriously received by employees as a threat of reprisals for engaging in protected activity At most under Sheeley s version Youngblut s state ment would merely tend to confirm what was otherwise not disputed- that third shift was an undesirable assignment ees that this was why Wiss had acted and their state ments were sufficient in themselves to make out a prima facie case even if the opinions they expressed were not specifically linked to any direct statements by Wiss 16 Moreover one need not rely exclusively on supervisors expressions of opinions to employees to find a prima facie case of antiunion motive Crandall s firsthand ac count of his 1984 conversation with Wiss shows that Wiss was hostile to and disposed to restrict Lauritsen s prounion conversations with his fellow employees An even more direct indicator that Wiss was inclined to treat the graveyard shift as an isolation ward for union activists is found in Gaiser s quite recent out of court ad mission to Wolf that Wiss had proposed to move Wolf to the graveyard shift to prevent him from talking to any body or from influenc[ing] them on the Union Under Wright Line supra once a prima facie case was made out that union activities influenced Respondent s decision to move Lauritsen to the graveyard shift it became Respondents burden to demonstrate that it would have taken the same action even if Lauritsen had not engaged in such protected activities For reasons that I think are largely evident from my earlier findings on this subject I conclude that Respondent has failed to carry its burden and that the evidence as a whole favors the General Counsel As I have found the decision to move Lauritsen was unprecedented and this fact in itself crippled Respondents attempts to demonstrate that Lauritsen s shift change would have happened without regard to his union activities Beyond that Wiss pro fessed reasons for taking that action were suspiciously conclusionary in tone and Respondents case otherwise lacked the kinds of corroborative detail I would have ex pected Respondent to produce had there been any sub stance to Wiss claims about the relative skills and abili ties of Lauritsen and the other mechanics named in Wiss manning changes memorandum Further many fea Lures in Wiss explanations were either self contradictory or were contradicted by other circumstances the single most telling being that once Wiss had managed to move Lauritsen to the graveyard shift he seems to have lost all interest in any further implementation of his man ning changes program In short I am left with the impression that even though Wiss mentioned several names in his December memorandum as likely candidates for transfer to the third shift this was a smokescreen Lauritsen appears to have been Wiss only real target for transfer and I am I6 E g NLRB v Dorothy Shamrock Coal Co 833 F 2d 1263 (7th Cir 1987) There Company Supervisors Scruggs and Henry had made state ments to employees on several occasions implying Company President Frank Carr s strong antiunion stance statements on which the Board had relied in finding that the company s subsequent discharge of its em ployee drivers was unlawfully motivated On the Board s application to the Seventh Circuit for enforcement the company defended in part on the ground that the General Counsel had failed to establish a prima facie case because there is no direct evidence that Frank Carr har bored antiunion animus and no evidence linking Carr with the statements of Scruggs and Henry Id In rejecting this defense the circuit court found it reasonable for the Board to have relied on Scrugg s and Henry s statements to employees for purposes of finding animus The court fur ther observed in this regard The Board is free to rely on circum stantial evidence as well as direct evidence in assessing motive Ibid ARMOUR CON AGRA 969 therefore inclined to treat Wiss December memorandum as the kind of documentation that is not so much in tended to record and highlight an underlying historical reality as to conceal one Indeed in the circumstances Wiss overall tendency to conceal and obscure is itself a fact of probative worth a fact more properly allocated to the side of the ledger reserved for evidence of Re spondent s unlawful motivation than to the side reserved for exculpatory proof'' I therefore conclude that in assigning Lauritsen to the graveyard shift Respondent violated Section 8(a)(3) and (1) substantially as alleged in the complaint I further conclude consistent with the complaint that when Su pervisors Crandall and Gaiser told employees that the real reason for the transfer was Lauritsen s union activi ties those remarks had a necessary tendency to restrain and coerce employees in the exercise of protected rights and thereby independently violated Section 8(a)(1) of the Act 18 B Lauritsen s Suspension and Discharge 1 The break in attempt on July 13 The incident that precipitated Lauritsen s suspension and eventual discharge occurred in the early morning hours of Sunday July 13 a time when Lauritsen was un supervised because third shift Maintenance Foreman Leroy Lyrner did not work on weekends Lauritsen states he was suffering from a recurring headache and had gone to the office where the plant nurse maintains a first aid station intending to get some Tylenol (as he ex plained he preferred Tylenol to aspirin because the former was easier on his stomach) He admittedly had planned to use a credit card from his wallet to slip the lock to the office a common practice among employees he says when the door was locked and no supervisor was on hand with a key Poised outside the door he ad mittedly held some tools in one hand including a screw driver tools that he normally carried in the hip pocket of his overalls (He explains that he had transferred these tools from his overalls pocket to one hand in order to reach the interior pocket in his trousers containing his wallet ) It was at this moment while he had tools in hand and was fishing for his wallet that two employees Bonjour and Sturges walked into view He paused and asked them if they had a key to the office they said they did not then walked into the nearby cafeteria Lauritsen dropped his efforts at this point and went himself into 17 Shattuck Denn Mining Corp Y NLRB 362 F 2d 466 470 (9th Cir 1966) 1e E g P Q Beef Processors 231 NLRB 1076 (1977) a case inexplica bly cited by Respondent for the proposition that no 8(a)(l ) violation of the Act occurred because Crandall and Gaiser were speculating when they made the remarks in question It is true that in the cited case the Board agreed with the administrative law judge that Supervisor Garcia s threats of retaliatory treatment were not enough in the circumstances to establish a separate alleged violation under Sec 8(a)(3) But on the 8(a)(1) violations presently at issue the case holds exactly to the contrary of Re spondent s interpretation Thus the judge reasoned that [s]uch threats are attributable to Respondent even though the supervisor who made them was simply expressing his own beliefs and was not speaking for [management) the cafeteria explaining that he had by then noticed a fellow employee James Schreiver seated in the cafete ria who Lauritsen knew sometimes had a key to an other supply cabinet in the dry sausage production office where aspirin and Tylenol and like products were sometimes to be found Lauritsen states that Schreiver did have a key to the dry sausage cabinet that the two of them then went together to the cabinet which Schreiver opened allowing Lauritsen to remove a bottle of Tylenol Admittedly parts of Lauritsen s explanations are not susceptible of direct corroboration nor contradiction but Sturges corroborates that Lauritsen himself went into the cafeteria after learning that neither Sturges nor Bonjour had a key to the office containing the nurses first aid sta tion And Schreiver substantially corroborates Lauritsen on other features agreeing that Lauritsen approached him seeking Tylenol and that the two then went to the dry sausage cabinet which Schreiver unlocked whereupon Lauritsen retrieved some type of medication either aspirin or Tylenol (he did not watch to see which) '9 2 Respondent s initial reaction to the incident Either immediately after their July 13 encounter with Lauritsen or sometime on July 14 Bonjour and Sturges casually discussed the episode in the presence of another employee Merlin Schaefer describing how they had seen a large heavy set man (they did not know Launt sen s name at the time) trying to pry open the lock with a screwdriver Schaefer then left the discussion and has tened to inform Plant Manager Donald Clark about what he had learned Clark recalls that Schaefer named Laur itsen as the individual whom Bonjour and Sturges had described 20 19 Nothing in the record contradicts Lauritsen s testimony that Tylenol was not available to him on July 13 except in locked areas As we shall soon see however Respondent makes much of discrepancies in Laurit sen s various statements whether he was seeking Tylenol or aspirin With this in mind during cross -examination of Schreiver Respondents counsel vaguely made a matter of record that in a pretrial affidavit Schreiver had variously used either the term Tylenol or aspirin in recounting his contacts with Lauritsen on July 13 But the record does not disclose with any clarity whether Schreiver ever used the term aspi rin in his pretrial affidavit when recounting the initial request from Lauritsen Moreover Schreiver was unswerving in his recollection at trial that Lauritsen had initially come to him with a request for Tylen of Explaining his discrepant usages in his affidavit he stated aspirin Tylenol that all means the same to me you know 20 Schaefer did not testify Clark admittedly knew Schaefer as an em ployee with a history of complaining to management about other employ ees activities Indeed in seeking to overturn the results of the second election in which the Union received a majority of the votes Respond ent relied in part on Schaefer s complaints that he had been victimized by harassment from prounion workers and argued from this that the Union was responsible for creating an atmosphere of fear that tainted the re suits of that second election In recommending dismissal of these objec tions the Board s hearing officer found that throughout his employ ment Schaefer had complained to a supervisor or managerial staff member about the conduct of fellow employees that he deemed im proper and that it was Schaefer s unpopular role as the company po ]iceman that accounted for many of the incidents of harassment involv ing Schaefer on which Respondent had relied to overturn the election re suits Accordingly the hearing officer reasoned that Respondent had not established an evidentiary nexus between those incidents and the Continued 970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schaefer s news caused Clark in turn to notify Wiss and Human Resources Manager Daryl Johnson a man who had only recently taken over that top personnel position from Dennis Miller Clark also directed Schaefer to return to the plant floor to summon Bonjour and Sturges which he did 21 Clark and Johnson then inter viewed the two eyewitnesses and later prepared identical written statements for Bonjour and Sturges to sign which they did in a followup summons to management offices on July 17 relevantly claiming they had seen Chris Lauritsen using a screwdriver in attempting to pry open the lock It was not until July 18 that Respondent confronted Lauritsen about the incident as I describe next 22 Laurit sen s supervisor Leroy Lyrner told Lauritsen that they were both wanted in Wiss office saying he hadn t the slightest idea why On arrival in Wiss office they were met by Wiss and Johnson Wiss claimed to have a report that [Lauritsen was] trying to break into the nurses office with a screwdriver Lauritsen replied No wrong explaining I wasn t trying to break in there with a screwdriver Wiss said I consider this an act of theft and demanded an explanation Lauritsen re plied I had a headache and I wanted to get some Tylenol 23[T]he nurses office was closed and I union activity occurring at the Employers facility I here take adminis trative notice of the Hearing Officers Report and Recommendations on Objections to Conduct Affecting the Results of the Election in Case 18- RC-14052 at 9-10 which were substantially adopted by the Board in its recent decision and certification of the Union S i According to Sturges this was only five minutes after they had told Schaefer of the incident and he had then departed Schaefer s return to Bonjour and Sturges with a summons to go to Clark s office caused Sturges to react by saying Oh no since he didn t really want to men tion anything about it 22 For findings about the events on July 18 I rely principally on Laur itsen s account which was seemingly candid and the most comprehensive of any of the versions offered it is only marginally contradicted by other participants and then only on a few points which I discuss separately in footnotes below 22 Wiss and Johnson recall that Lauritsen referred to aspirin -not Tylenol -at this point Respondent makes much of this discrepancy noting that its agents learned in a subsequent investigation of the epi sode that aspirin was available on the plant floor and arguing from this that Lauritsen has obviously changed details of his story to avoid he implications of Respondents investigatory discovery about the availabil ity of aspirin Respondent also points in this connection to what Laurit sen said in an October 8 1986 unemployment compensation hearing There referring to his July 18 meeting in Wiss office Lauritsen s repre sentative asked him did they ask you what you were trying to steal? Lauritsen replied I told them I was trying to get-I use the generic term aspirin for [sic] and it kills headache pain I was trying to get aspi nn Confronted with this apparent discrepancy in the present trial Lauritsen admittedly became not exactly certain on the point at issue but persisted in saying I think I told him Tylenol The issue is not free from doubt the surrounding evidence points in different directions (as noted above Schreiver recalls that Lauritsen asked for Tylenol on July 13 even though Lauritsen himself proved not to be exactly certain when pressed at trial about whether he had referred specifically to Ty lenol during his July 18 confrontation with management) An assessment of probabilities yields no obvious resolution (because none of the July 18 participants had any apparent reason to focus on brand name distinctions at the time it seems equally possible either (a) that Lauritsen said Tylen of but the managers misheard or misrecalled him as saying aspirin or (b) that he merely said aspirin -a possibility that might be explained by assuming that Lauritsen had not consciously intended to draw a distinc tion between aspirin and Tylenol ) For decisional purposes however I will resolve doubts by assuming that Lauritsen said aspirin on July 18 an assumption that I deem to be substantially less significant than Re was going to use my credit card to get in 24 And then I told him that using a credit card was a common practice and everybody knew it 25 Wiss repeated that he still regarded Lauritsen s actions as an act of theft Lauritsen asked what he was supposed to do if we need first aid supplies in the middle of the night Wiss replied that he could get a hold of the guard Lauritsen re plied Nobody ever told me that Wiss replied Well maybe we haven t done a good job in that area it s still not a good practice for you to be breaking into the nurse s office At some point Wiss also asserted that he had doubts about Lauritsen s veracity 26 Eventually Lauritsen asserted that an incident this trivial would never get this kind of attention if it wasn t for the union organizing Wiss denied this saying that Lauritsen was entitled to [his] opinion but that it would not be ethi cal for Wiss to hold it against you because [you re] active in the union Responding to this reference to ethical considerations Lauritsen stated that Wiss was the most ruthless son of a bitch Lauritsen had ever seen in thirty years of working This caused Johnson to interject to calm things down Wiss concluded the meeting by repeating that he saw Lauritsen s behavior on July 13 as an act of theft an nounced that Lauritsen would be suspend[ed] pending further investigation and directed that Laurit sen turn in his ID card and toolbox keys and leave the plant under escort As Foreman Lyrner escorted Laurit sen from the plant Lauritsen asked Lyrner to do what you can for me Lyrner replied I sure will I will do anything I can This is the biggest bunch of bull shit I ve ever heard 27 spondent believes it to be as I explain more fully in my concluding dis cussion 24 I will not find it necessary to determine whether Lauritsen had actu ally made some preliminary effort to use a screwdriver to spring the doorlock or on the other hand whether Bonjour and Sturges had merely misapprehended that this was what Lauritsen was trying to do when they saw him poised at the door screwdriver in hand Although Respondent emphasizes the discrepancy between the Lauritsen and the Bonjour/ Sturges versions on the matter of the screwdriver it plainly has no real significance for Respondent has never otherwise implied that Lauritsen s offense would have been excused or mitigated if the Company had be lieved that he had intended to slip the lock with a credit card rather than with a screwdriver Indeed Wiss conceded that he was inclined to be Iteve Lauritsen s credit card story and to treat Bonjour/Sturges screwdriver perceptions as simply the result of a good faith misappre hension "Johnson could not recall that [Lauritsen] made that statement Wiss did not directly admit or deny that Lauritsen had made this claim but he testified that in his own followup investigation he queried cer tarn supervisors including Lyrner whether it was common practice for somebody to break into the employment office to get aspirin Although I do not ultimately believe that Wiss made any such followup inquiry I think his testimony necessarily supports Lauritsen s claim that on July 18 Lauritsen raised the common practice issue since Wiss does not admit to having independently heard any claim about such a common practice 26 Wiss was then referring to a much earlier otherwise unlitigated in cident in which Lauritsen had received a serious injury on the job but had refused to identify a possibly negligent fellow employee who may have occasioned the injury 27 Respondent did not call Lyrner to testify although he was still in Respondents employ when this case was tried ARMOUR CON AGRA 971 3 Other relevant details the nurses office employee entry practices company knowledge Although it involves a departure from the ch-onology I find it useful to defer my narration of subsequent events until I have set forth other relevant details for an adequate appreciation of all of these central events-es pecially those associated with Respondents investiga tion -requires a clearer picture of the office Lauritsen admittedly had tried to enter the entry practices associ ated with it and the extent to which Respondent s agents were on notice of some of these facts even before Launt sen made his fateful visit to that office on July 13 To start with there is some controversy over the proper label for the office in question employees call it the nurses office while Respondent prefers to call it the Employment Office In fact neither label is wholly descriptive a fact that is implicit in the sign posted on an adjacent outside wall which reads Employment Office First Aid Avoiding the controversy I will simply refer to it below as the office The office in fact serves two functions it is used during the first shift and part of the second shift by two persons Lee Hudson the plant nurse 28 and Joyce Kelley who holds the title Employment Manager 29 The office contains at least six file cabinets three of which are routinely locked according to nurse Hudson these contain personnel files worker injury and per sonal medical history records Another three cabinets are normally unlocked according to nurse Hudson they contain blank insurance forms insurance records and miscellaneous items [such as] extra gloves for the plant Also maintained in an unlocked cabinet is a card file with names addresses telephone and social security numbers of all employees In addition on Kel ley s desk there can usually be found a call in sheet that is a master list of casual employees with their home telephone numbers which is used by both Kelley and the plant nurse who share responsibility for telephoning those casual workers to replace a regular worker who calls in sick Finally the office houses a first aid kit con taming nonprescription medications such as aspirin Ty lenol and Advil as well as other bandages and supplies Periodically says nurse Hudson extra supplies of Tylen of aspirin and bandages would be sent to the supervi sors offices on the plant floor level at other times em ployees or supervisors would come to the nurses office to pick up extra supplies of those items Until quite recently the door to the office has been only poorly secured by a simple privacy type lock mechanism not by a deadbolt lock As many besides Lauritsen were aware the lock itself was worn and could be sprung simply by inserting a credit card (or even a folded newspaper) into the space between the 29 In fact there are two plant nurses who work different schedules but Hudson was the only nurse who testified and who figured in the case 29 Kelley did not testify Her title may be misleading because her actual duties and functions as incompletely described by nurse Hudson strike me as more clerical than managerial in nature In any case Kelley s duties as Employment Manager should not be confused with the over all personnel responsibilities for the plant that are vested in Daryl Johnson the Manager of Human Resources who occupies a separate office in a different location within the plant latch and the striker plate on the doorjamb Lauritsen testified conclusionarily that this was widely known and that he had seen many other persons spring the lock to gain entry for various routine purposes He was corrobo rated by mechanic Bob Echelbarger who testified It was pretty common knowledge that you could get into it very easily (as Echelbarger himself admittedly had done) And James Sheeley recalled similarly that he had seen as many as four other instances (twice involving Echelbarger using a folded newspaper) where workers had slipped the lock with some device Indeed after being himself assigned to fix the lock as described below Sheeley admittedly let himself in with a credit card when he went to the office and found it locked with a note from Hudson on the door that indicated she had stepped out to go to another office The insecurity of the doorlock had come to the atten tion of nurse Hudson and to several members of Re spondent s supervisory or managerial team well before Lauritsen s discharge as I detail next The chronology starts with Hudson who says she first learned of a prob lem with the doorlock sometime in early May when Kelley her office mate reported that she had inadvert ently locked her keys inside the office and had then been shown by an employee named Danny Shackleton that the latch could be sprung by inserting a laminated plastic sheet into the opening This disturbed Hudson she says because both she and Kelley sometimes left their purses unattended in the office when they absented themselves for brief periods and she had until then assumed that the purses would be safe if the door were closed and locked Accordingly apparently concerned more for the security of her purse during times when she was at work than for the security of anything else maintained in the office Hudson reported the incident to her superiors (One of those superiors was Dennis Miller the predecessor to Human Resources Manager Daryl Johnson the other was the plant controller Jerry Vesser) In thus reporting Hudson mentioned that Shackleton had known that the doorlock could be jimmied Hudson s superiors author ized her to get it fixed and somehow caused a work order to be issued to the maintenance department They did not apparently see fit to conduct any inquiry into Hudson s revelation that an employee was aware that the lock could be slipped a fact that implied some degree of prior occurrences in the plant of employees having by passed the lock Having received this authorization and being appar ently aware that Shackleton was not the only employee who knew that the lock could be sprung Hudson sum moned mechanic Echelbarger to show her how it could be done so when I talked to whoever was going to fix it I would know what was going on He showed me that you could open it with his I D card The chronology is picked up next by mechanic Shee ley who described how he received a written work order together with verbal instructions to look into the matter from his foreman Youngblut who also com mented that people were going in and out of the office Sheeley then inspected the lock removed it and made a temporary repair then reinstalled it after deter 972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mining that a fully satisfactory repair could not be made without some new parts which he asked Supervisor Youngblut to order explaining the temporary repairs he had made to date 30 Youngblut while not recalling the timing added to the list of management agents who were aware of the problems with the office lock when he stated that he had left a copy of the work order in question with Wiss as sistant Charles Curran And Wiss himself admitted at one point that he routinely receives copies of work orders although he otherwise claims he was unaware at any time before Lauritsen s suspension or discharge that there had been problems with the lock on the office door Sometime between early May and the first week of June 86 according to mechanic Echelbarger s recollec tion nurse Hudson told Echelbarger that her lock had been fixed Echelbarger inspected it and was skeptical then demonstrated to Hudson that the lock could still be sprung with a folded newspaper Sheeley recalls being teased by Echelbarger over the inadequacy of his initial repair And apparently during the same period Douglas Wolf reports that Hudson told him that her doorlock could still easily be sprung with a newspaper There is little evidence before the Lauritsen affair that might indicate that Respondent was concerned about the security of records stored in the office other than the evidence showing that the most sensitive records stored within were maintained in file cabinets with their own locks Indeed crediting mechanic Wolf nurse Hudson commented to him after Lauritsen s dis charge that she could not understand what Lauritsen might have wanted to get from within the office (other than what he admitted to wanting) because the files con taming arguably confidential information were routinely under lock 31 Consistent with this view Lauritsen tests fled that employees were often allowed to enter the office unescorted especially on the graveyard shift when it was never occupied using keys furnished by their supervisors Thus You usually just go to your foreman and I d say to him I need an aspirin or a bandaid or whatever and he d just give me so Sheeley s account suggests that all this happened shortly before the end of the second week of July but Sheeley s recollection in this regard is seemingly out of phase with nurse Hudson s chronology (implying that Sheeley s temporary repairs had been completed much earlier) and with Echelbarger s testimony detailed below which implies that Sheeley s preliminary repair work must have been completed by early June at the latest In any case Sheeley s recollection of the timing is still consistent with my finding that certain agents of management named thus far were aware of the problem with the lock before Lauritsen tried to enter the office on July 13 I note also that Respondent never sought to contradict such a finding even though it had unique access to work order records and to the recollections of its agents 31 The exception of course was the unlocked cabinet that held the card file containing current employees names addresses telephone and social security numbers On this point however there is no evidence Lauritsen knew those card files were in that cabinet (he says he assumed all the cabinets were locked) and little to ground a suspicion that he might have wished to steal the information contained on each individ ual card This would have been not only a laborious process but prob ably a needlessly duplicative one since I credit Lauritsen s uncontradict ed testimony that he already was in possession of an Excelsior' list from the first election and turnover in the plant had been minimal in the inter vening period the keys He says he had done this five six times Similarly employee Schriever testified that as a matter of general practice you could tell the foreman you wanted some aspirin or something they would hand you the key and you would go and bring the key back Schreiver also recalled that on the third shift he had once gone unescorted to the office to get aspirin had found the door unlocked and had simply entered it And Supervisor Gaiser responded affirmatively when asked Did employees ever have occasion to have to go in there [the office] when there was no one there? Moreover the evidence also shows that the lock on the office continued to be vulnerable for more than a year after Lauritsen s discharge Thus Echelbarger tests feed that he demonstrated yet a third time to nurse Hudson after Lauritsen s discharge that the lock could still be penetrated with a credit card even though a second repair effort (authorized by Plant Manager Clark on the day Lauritsen was suspended) had made it no longer possible to use a newspaper to slip it And both mechanic Sheeley and nurse Hudson agree that this still insecure state of affairs persisted until only about a month before this trial when the privacy type lock was finally removed and replaced (by an outside contras tor according to Sheeley) with a deadbolt lock system None of this testimony was contradicted by Respond ent s presentation 4 Respondents investigation On July 25 Johnson mailed a formal discharge notice to Lauritsen stating that the Company s action was ne cessitated by your attempting to break into and enter the plant employment office Before reaching the conclusion that Lauritsen s dis charge was necessitated however Repondent s agents had determined in close consultation with corporate labor relations officials in Omaha 32 to investigate fur ther into the incident Exactly what took place during this intervening period and when is especially hard to discern with any certainty not only were Respondent s witnesses vague on many salient points but they often contradicted one another or made claims that are either contradicted by other known facts or lacking in corrobo rative evidence that it was within Respondents power to produce The actions of Respondents agents during this period are moreover puzzling not only for what those agents claimed to have focused their investigative efforts on but also for what they failed to look into all as I dis cuss below One matter on which the three top managers (Clark Wiss and Johnson) appear to agree is that they went to the office just after dismissing Lauritsen from the plant under escort on July 18 There they tried to use a credit card to slip the lock and were unable to do so Explain ing why they did this Clark stated that he simply wished 32 Although Plant Manager Clark was extremely evasive when asked for particulars about his communications with Omaha he grudgingly conceded at least that the Omaha officials themselves were fully mindful of who Chris Lauritsen was And on brief Respondents counsel grants that Launtsen s role as a union activist may have caused the plant officials to take extra care in dealing with the Lauritsen affair ARMOUR CON AGRA to see whether there was something wrong with the lock that needs to be corrected (thereby disowning any suggestion that it was somehow important to the manag ers to determine whether Launtsen was telling the truth when he spoke of intending to use a credit card rather than a screwdriver to slip the lock) And even though the managers claim not to have been able to spring the lock with a credit card Clark inexplicably insists that he nevertheless immediately caused a work order to be put together to install a stainless steel plate and verified within a day or the same day that [Lauritsen] was suspended that such a plate had been installed 33 Setting aside the never answered question how this expe dition might have helped Respondents agents reach the judgment that Launtsen s discharge was necessitated I find it even more significantly curious that none of the three managers used the opportunity of their visit to the office on July 18 to ask either nurse Hudson or Employ ment Manager Kelley what they might know about any previous examples of employees having slipped the door lock to gain entry-this despite the fact that both Clark and Johnson admitted that the two occupants of the office were within that office while the managers con ducted their own experiment with a credit card This latter feature of Respondents managers investi gative efforts suggests that company agents were avoid mg any investigation into Lauritsen s assertion that it had been common practice before then for employees to jimmy the doorlock This inference is strengthened by Clark s admission that he never personally investigated Lauritsen s common practice claims and was not aware that anyone else had ever done so either It is reinforced further by the General Counsels examination of Johnson as follows Q To your knowledge has any investigation been made concerning other employees getting access to the nurses office by means other than a key? A Are you talking about that point in time? Q Up to and including the time of Lauritsen s termination A I was not aware of that Again I was new in the area and I had no knowledge of that Q Since that time has any other employee been discharged or suspended or punished for gaining access to the nurses office by means other than a key? A No Q Has any investigation been conducted con cerning other employees gaining or seeking access to the nurses office by means other than a key? A No 33 Adding to this inherently curious account is the fact that no one else ever mentioned such a plate (not Hudson nor especially Echelbarger who specifically testified that after Lauritsen s discharge the doorlock had been fixed enough to prevent a newspaper from being used to slip the lock but was still vulnerable to a credit card thereby seemingly con tradicting the notion that a protective plate had been installed ) Consid ering Echelbarger s evidence I believe only that Clark directed that some additional repair effort be made one that did not cure the problem and that over a year later was supplanted with an entirely new deadbolt system 973 Moreover when Johnson prepared a memorandum on July 30 documenting the company s treatment of Lauritsen he summarized the Company s investigation in terms that do not directly address the common prac tice issue (indeed his memorandum is striking for its artful avoidance of the point and for its other misrepre sentations as I discuss elsewhere below ) The only person to claim that he had investigated the common practice issue was Wiss who (under seques tration orders and called by Respondent to testify after Clark and Johnson had left the witness stand) eventually claimed in summary terms that he had himself conducted an investigation of sorts into this question ( I inquired amongst my supervisory staff ) I do not believe Wiss I note first or course that if he did so neither Clark nor Johnson ever learned of it Moreover Wiss was vague when pressed for details Thus asked to state which supervisors he had inquired amongst Wiss stated that probably Leroy Lyrner was one whom he had asked whether it was common practice for somebody to break into the employment office to get aspirin and that Lyrner had replied sup posedly No matter of fact they have aspirin right there in the pilot shop And that was the next thing I investi gated I went to the pilot shop to see and I investi gated that and there was aspirin in the jar But Re spondent chose not to call Lyrner to corroborate Wiss and it is hard to believe that Lyrner who told Lauritsen that he regarded Lauritsen s suspension over the July 13 incident to be the biggest bunch of bullshit [he had] ever heard of would have withheld that opinion from Wiss had Wiss ever questioned Lyrner Later pursued again regarding details of his alleged inquiries among the supervisors regarding what he called a policy to break into the office Wiss claimed to recall having spoken with Crandall although he never reported Crandall s reply But Crandall himself described only a conversa tion in which Wiss had informed Crandall of Lauritsen s suspension never mentioning any question from Wiss about any prior break in practices And later in his tes timony Crandall further denied that Wiss had ever con suited with him on the subject of Lauritsen s suspension or discharge Once again I conclude that Wiss was merely improvising I find that he contented himself with establishing only that aspirin was available on the plant floor and made no inquiry (at least none whose re suits he was willing to disclose) into the matter of previ ous office entry practice The only other evidence of an investigation by Re spondent s agents is to be found in the testimony of Johnson and in his July 30 memorandum prepared for in clusion in Lauritsen s personnel file In his memo John son stated materially To Personnel File From D E Johnson Subject Termination of Lowell (Chris) Lauritsen At the request of Omaha labor relations officials Ed Murphy and Dorothy Osborn I have personally verified the following 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 There has not been an incident of breaking and entering or theft where an employee was caught 2 Aspirin was available both in the maintenance office and at the guard station If Chris had checked there would have been a guard on duty at the guard station In addition the maintenance office is not locked and he could have obtained as pirin there 3 I checked with Rick Sturges and he indicates that he hardly knows Chris and there have been no grudges or animosity between them I set aside discrepancies between Johnson and Wiss as to who it was who had actually personally verified the availability of aspirin in the plant and at the guard sta tion similarly I will not dwell on the lack of corrobora tion by Sturges of Johnson s claim that he had deter mined from Sturges that Sturges bore Lauritsen no ill will This latter item is of such seeming irrelevance in any case that it strikes me as mere makeweight an effort to lard the documentary record and to obscure the frail ties of the substantive investigation What seems more revealing about Johnson s report is his careful averral in item I that there had never before been an incident of breaking and entering nor of theft where an employee had been caught Clearly Lauritsen had not been caught at either such offense and Johnson s statement therefore merely topped a straw man rather that item in Johnson s report simply fuels the impression that Respordent s agents were conscious ly sidestepping Lauritsen s claim that slipping the lock on the office was common practice Most significant of all however Johnson was playing with historical truth even as his own narrow inquiries had revealed that truth when he claimed that there had never been an incident in which an employee had been caught in an act of theft As Johnson explained he had been instructed by Omaha during the investigation stage to determine if anyone was terminated for theft as such Pursuing that inquiry he had discovered at least one case in which an employee Al Foell had been caught in the warehouse out of his own regular work area in possession of cheese which was compa ny property stored in the warehouse and used as an addi Live in one of Respondents product lines As Johnson admitted company records showed that Foell had not been discharged but rather had received a 12 day sus pension for theft 34 The record shows an additional instance in which Re spondent issued only a disciplinary suspension without pay to two employees actually caught in an act deemed by the Company at the time as theft This was brought out by the General Counsel at the rebuttal stage Employee Gary Kraus testified in substance that he had accepted a piece of stolen meat product from a fellow employee their actions had been detected by a plant guard when they left the plant they were both subse 3 Attempting to minimize this at trial Johnson habitually described Foell s offense as eating cheese (a mischaracterization that Respond ent s counsel continues to employ in adverting on brief to the Foell mci dent) Company records plainly treat the Foell incident as theft not any thing as trivial as eating on company time quently grilled in management offices his fellow employ ee had been suspended without pay for 5 days and Kraus himself had received a 3 day suspension for having accepted stolen product Johnson was not re called to explain how that incident had escaped his review Explaining finally why his awareness that Foell had only been suspended for actual theft did not cause plant officials to merely suspend Lauritsen rather than fire him Johnson spoke about the magnitude of Laur itsen s offense as compared to Foell s Invited to elabo rate Johnson rested on the fact that confidential records were stored in the office that Lauritsen had planned to enter before changing his mind 5 What the foremen said to employees Schreiver testified that he spoke alone with Supervisor Crandall during the week Lauritsen was on suspension In that conversation Schreiver opined that the only reason that he got suspended was because of the union activity he was in Crandall replied I know what you mean Wolf recalled that on the Sunday after Chris was fired during a conversation with Crandall at Wolf's house Crandall said that all the way through from [Lauritsen s] going to third shift to the suspension to the firing was because of his Union activities Later during the investigation of the Union s unfair labor practice charges Wolf recalls Crandall saying They ve been after Chris since day two because day one they didn t know who he was I credit Schieiver and Wolf As noted earlier Crandall admittedly held the beliefs that those employees say he voiced and Crandall never denied making those state ments rather as Crandall once conceded he might have said something here and there Wolf also described remarks made by Supervisor Ted Balek (who did not testify) during a tavern conversa tion Discussing the deal at the nurses office Wolf quotes Balek as saying If it wouid have been anyone other than Chris nothing would have ever been said But because [off Chris and his Union activities and [the] Union campaign they finally found the reason they were looking for to get rid of him I credit Wolfs uncontra dicted testimony 6 Concluding findings In Wright Line the Board fashioned an analytical framework useful primarily for deciding the types of causation questions presented in dual motive cases i e cases in which an employer with proven historical animosity towards his employees statutorily protected activities has disciplined or discharged an employee who engaged in such protected activities but who has also committed some arguable act of misconduct for which the employer might legitimately punish him or her Re spondent s suspension and discharge of Lauritsen present nice questions under Wright Line this is because while there exist ample grounds for finding a prima facie case ARMOUR CON AGRA that unlawful discrimination influenced these actions 36 neither can it be doubted that Lauritsen went to the office on July 13 mtending-until he changed his mind- to jimmy the lock and to enter the office arguably an act of misconduct (had it ever happened) that might be expected to trigger some kind adverse reaction from his employer And it is in cases such as this when judg ments must ultimately be made not only about whether a union activist engaged in misconduct but even if so whether that misconduct truly caused the employer to discharge him that the tests prescribed in Wright Line become especially difficult to apply One of the practical difficulties in applying Wright Line s teachings stems from the uneasy coexistence in that decision of two arguably conflicting expressions re garding the parties respective burdens once a prima facie case of discrimination has been established by the General Counsel On the one hand the Board has stated once this is established the burden will shift to the em ployer to demonstrate [emphasis added] that the same action would have taken place even in the absence of protected conduct (251 NLRB at 1089) On the other hand the Board noted (251 NLRB at 1088 fn 11) that while the employer must make out what is actually an affirmative defense to overcome [emphasis added] the prima facie case the General Counsel nevertheless re tains the ultimate burden of establish[ing] an unfair labor practice by a preponderance of the evidence [empha sis added] Evidently therefore the result of a Wright Line analysis may depend in a given case on which of the foregoing phrases one chooses to emphasize I am satisfied that Respondents presentation has not overcome the General Counsels prima facie case and that Respondent has failed to demonstrate that it would have fired Lauritsen even if he had not been a union activist But my conclusions elaborated below do not rely on any particular emphasis being placed on the employers burden In fact being uncertain as to the precise implications of the statement in Wright Line which refers to the General Counsels ultimate burden I have assumed that any doubts about how the evidence finally preponderates on any material point are proper ly resolved against the General Counsel If I were to accept that Lauritsen s actions amounted to a kind of misconduct I would also concede that Respondent has gone at least part of the required dis tance towards neutralizing the prima facie indications of discrimination But in evaluating this threshold question I must confront an obvious point unfavorable to Re spondent Lauritsen never actually got around to spring mg the doorlock on July 13 at most relying on Sturges 95I have found (a) that Respondent was historically hostile towards Lauritsen s union activities (b) that Respondent moved by antiunion animus discriminated against Lauritsen by reassigning him to the grave yard shift and (c) that three of Respondents supervisors told employees that Lauritsen s suspension and discharge were caused by his union ac tivities These facts were enough (indeed the supervisors statements were alone enough see NLRB v Dorothy Shamrock Coal Co supra) to constitute a prima facie case that Lauritsen s union activities were a mo tivating factor in Respondents decision to fire him Adding to these cir cumstantial telltales moreover is that aspect of Respondents defense discussed further below that directly caused Respondent to impute darker union related motives to Lauritsen s admitted behavior 975 and Bonjour s perceptions and ignoring Lauritsen s ac count I might find that he had made a preliminary at tempt to do so before abandoning such an effort And at most in that case his misconduct involved the enter taming of an intention to do something arguably wrong followed by an incomplete act in furtherance of his in tention an act that he quickly reconsidered and then abandoned Despite this and despite the evidence that suggests that the Company did not see even the success ful bypassing of the doorlock as misconduct 36 1 will assume hereafter that Lauritsen s actions involved a degree of misconduct Put another way even if the record suggests a certain tolerance on Respondent s part that evidence would not necessarily justify the in terpretation that bypassing the locked door was a fully accepted intention to enter the office when he realized that there was another alternative (the use of Schreiver s key to the dry sausage cabinet) I will assume that Laur itsen himself was aware that bypassing the doorlock was a disfavored means of solving his headache problems These assumptions favorable to Respondent although themselves debatable do not ultimately rescue Respond ent from a judgment that it broke the law in firing Laur itsen At best they might provide the germ of a justifica tion for summoning Lauritsen to explain himself and having heard his explanations perhaps for investigating further to determine whether Lauritsen s admitted ac tions and intentions were so out of line with tolerated practices to justify discipline of some sort I must part company with Respondent after this point however for I find no further grounds for genuine doubt that I might resolve in its favor Rather it is in analyzing Respond ent s behavior from July 18 onward that I see the strong est evidence that Respondents decision to fire Lauritsen was irremediably tainted by discrimination indeed that its professed concern over his alleged attempted break in was largely a pretext for its actions Based on facts discussed in earlier findings I conclude that Respondents agents were at least aware before July 13 that the doorlock was bypassable Important compa ny agents including the then Chief Personnel Officer Miller were fully apprised on that score by nurse Hudson Moreover that information gave Respondent s agents ample grounds for suspecting that other employ ees had been bypassing the lock I also find it unbeliev able that Respondent was ever truly concerned about employees having unsupervised access to the office One reason for my disbelief is that most of the confidential files were stored under separate lock Another reason is that employees had been allowed by their supervisors in the past to go to the office unescorted using a key pro vided by a supervisor Another reason is the apparent lack of urgency shown by Respondents agents in secur 36 refer here to evidence showing that employees had sprung the office doorlock before Lauritsen s attempt on July 13 and that some members of Respondents management were in possession of ground for suspecting (if not clearly knowing) that this was going on and had done little about it except to improvise a temporary and quite inadequate repair of the lock 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing the office door even after nurse Hudson made an issue of the condition of the doorlock 37 Given the foregoing I find it striking that Respond ent s agents reacted so strongly when Merlin Schaefer hurried into the plant managers office with the informs tion he had just gotten from Bonjour and Sturges Simi larly striking was the presumption adopted by the corn pany officials-manifested even before Lauritsen was asked on July 18 to explain himself-that Lauritsen s ac tions constituted an act [sic] of theft a presumption that was not shaken even after Lauritsen provided an innocent reason-his need for a headache medica tion-for wishing to enter the office (Wins I still regard this as an act of theft ) It seems plain from this that the Company had imputed a union purpose to Lauritsen s actions and had become wedded at a very early point to the presumption based solely on Laurit sen s status as a union activist that he could not have had innocent intentions 38 That Respondents agents explain so many of their actions in terms of this presump tion itself necessarily implies that the whole affair might have been dismissed as an innocent irregularity if an em ployee of less conspicuous prounion leanings had been involved To that extent I conclude that an element of discrimination had been injected into Respondent s treatment of Lauritsen s case from the very outset It is hard to ignore these strong indications that Laur itsen s special status was what triggered Respondent s highly adversary posture towards his case but one need not rely simply on the inference that Lauritsen was not accorded the same preliminary benefit of the doubt that would have been applied to other employees I have dis cussed at some length Respondents investigatory myopia on and after July 18 the studied avoidance on the part of its agents of any existing evidence of a practice and their failure to conduct any inquiry at all into the common practice issue Their actions seem consistent only with a desire to make a case against Lauritsen-at least this is the only explanation that I can discern for their having rested once they ascertained that aspirin could have been obtained elsewhere in the plant as Finally it seems clear enough that Respondent did not behave consistent with its prior disciplinary practice when it chose to fire Lauritsen for the attempted break in As we have seen at least three employees guilty in the Company s eyes of actual theft had not been fired 37 Foreman Youngblut knew from mechanic Sheely that the lock had not been fixed adequately after Hudson had first reported her concern for the security of her purse Even after Lauritsen was fired the lock contin ued to be vulnerable for more than a year until something (I infer it was the imminence of this trial) caused someone (I have no idea who) finally to decide to make a serious effort to secure the office 38 When Human Resources Manager Johnson spoke of the relative magnitude of Lauritsen s offense compared to the actual theft of cheese by employee Foell he clearly evidenced the Company s presump tion that Lauritsen intended to steal company records a presumption that quite obviously arose from Lauritsen s unique status and that colored the Company s view of the situation And Respondent underscores the same point by devoting a substantial piece of its brief to the otherwise unremarkable proposition that Lauritsen s (presumed ) intention to assist the Union by rifling company records was activity that (had it ever oc curred) would have been unprotected by the Act R Br at 19-20 s In the penultimate paragraph in this section I make additional com ments about the significance to this case of Respondents discovery that aspirin was available in the plant and Human Resources Manager Johnson had become personally aware of at least one such case before he issued the termination notice to Lauritsen And Johnson s attempt to conceal or obscure this fact in his July 30 documentation strongly evidenced his awareness that a discharge of Lauritsen involved a departure from compa ny practice Moreover his attempt to find in Lauritsen s theft which never happened an offense of greater magnitude than the actual theft of company product by employee Foell involved a non sequitur of such glar ing obviousness that it carries a potent probative force of its own in establishing that Respondent had unlawful ul terror motives in firing Lauritsen 40 In reaching all these conclusions I have given full consideration to Respondents counterexplanations of its behavior Respondent would have me find that the avail ability of aspirin in the plant was sufficient in itself to demonstrate to a reasonable employer that Lauritsen had been lying-not merely speaking loosely-in his July 18 account of his actions and therefore that he must have been concealing a guilty intention One obvious point in rebuttal is that company agents had already decided that Lauritsen was guilty of an act of theft before their in vestigation confirmed the existence of aspirin in the plant But even if aspirin was known by company agents to be available4 i the implications of this fact are not obvious Certainly the fact might invite an open minded investigator to ask an additional question namely What might Lauritsen have been seeking if not aspirin 9 But Respondents ready answer-that he must have intended to steal confidential material for a union purpose-was hardly an inevitable conclusion given that most of that confidential material was under separate lock and that the Union already possessed from the Company a reasonably current list of employees names and addresses the only material that Lauritsen might have discovered by a painstaking search of the individual cards stored in one of the unlocked cabinets Thus if the fact that aspirin could be found in the plant created grounds for doubt about Lauritsen s specific intentions there existed at least equally strong grounds for doubting that he intended to steal confidential information Ac cordingly it seems clear that the Company jumped to a conclusion unsupported by any reasonable evidence We are not required to be naif(Shattuck Denn Mining Corp supra at 470) and I simply cannot accept if an employee not conspicuously associated with the Union had been in Lauritsen s shoes that Respondent s agents would have as readily drawn that conclusion would have refrained from any inquiry into past office entry practice and would have decided to fire that employee for an attempted theft based solely on the ground that the employee might have been able to find elsewhere in the plant what he claimed he intended to obtain from the office Especially when Respondent s practice in other cases of actual theft was to issue only a disciplinary suspension such a suggestion defied belief 40 Shattuck Denn Mining Corp supra 362 F 2d at 470 4 It has never been disputed as Lauritsen testified that Tylenol was not available in the plant on July 13 except in locked cabinets or in the nurses office ARMOUR CON AGRA 977 And to judge otherwise would be to conclude that the key to disposition of this case is whether in fact Laurit sen had actually said aspirin rather than Tylenol on July 18 a notion that strikes me as ludicrous given the overall state of the record and that accounts for my un willingness to treat that distracting point of testimonial conflict as worthy of a credibility resolution I conclude that Respondents decision to suspend Lauritsen was reached not as part of any good faith rou tine but rather only for tactical purposes to create the superficial appearance of even handedness and to buy time for an investigation during which Respondent could perfect a case against Lauritsen Consistent with this view I conclude that Lauritsen s discharge had been preordained by July 18 and that all Respondents actions surrounding and including his suspension and discharge were part of an unlawful scheme that violated Section 8(a)(3) and derivatively Section 8(a)(1) 42 CONCLUSIONS OF LAW Based on the foregoing I conclude as a matter of law that Respondent Armour Con Agra an employer en gaged in commerce within the meaning of Section 2(6) and (7) of the Act unlawfully discriminated within the meaning of Section 8(a)(3) of the Act against its employ ee Lowell (Chris) Lauritsen by transferring him to the graveyard shift on February 10 1986 and by suspending and later discharging him on respectively July 18 and 25 1986 Those actions derivatively interfered with re strained or coerced employees in the exercise of statu tory rights within the meaning of Section 8(a)(1) of the Act When various supervisory agents of Respondent told employees in substance that Respondent took those actions against Lauritsen because of his union activities Respondent independently violated Section 8(a)(1) of the Act REMEDY To remedy these violations the substantive portions of my recommended Order prescribe that Respondent shall cease and desist from those acts and from any like or re lated acts that Respondent shall post an appropriate notice to employees that Respondent shall restore the status quo ante to those violations by offering immediate reinstatement to Lauritsen to the position on the second shift that he occupied before his unlawful transfer on February 10 1986 43 by making him whole with inter est 44 for any losses in pay or benefits he may have suf 42 For reasons explained in conclusions supra at sec D I d of this de cision I further find that Respondent independently violated Sec 8(a)(1) when its supervisors told employees in substance that Respondent had suspended and fired Lauritsen because of his union activities 43 Reinstatement shall not be accompanied by any prejudice to Launt sen s seniority or other rights and privileges If necessary Respondent shall displace an existing second shift employee to make room for Launt sen 44 Backpay shall be computed in accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effec tive date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) fered as a consequence of his shift transfer and his later suspension and discharge by removing from its person nel records all references to its suspension and discharge of him and by giving him written assurance that its un lawful conduct will not be used as a basis for further ac tions against him 45 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed46 ORDER The Respondent Armour Con Agra Mason City Iowa its officers agents successors and assigns shall 1 Cease and desist from (a) Discriminating against employees with respect to their hire tenure or any other term or condition of em ployment to discourage their membership in or activities on behalf of a labor organization (b) Telling employees that they have transferred sus pended or discharged an employee because of his union activities (c) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to remedy its violations and to effectuate the policies of the Act (a) Offer immediate full and unconditional reinstate ment to Lowell (Chris) Lauritsen to the position he oc cupied on the second shift before February 10 1986 (b) Make Lauritsen whole with interest for any losses he may have suffered as a consequence of his shift trans fer and later suspension and discharge (c) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way (d) 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 (e) Post at its Mason City Iowa plant copies of the at tached notice marked Appendix 47 Copies of the notice on forms provided by the Regional Director for Region 18 after being signed by the Respondents au thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea 45 Sterling Sugars 261 NLRB 472 (1982) 46 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 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 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize 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 discriminate against employees in any aspect of their employment with us because they join support or assist United Food and Commercial Workers Union or because they engage in any other activi y pro tected by Section 7 of the Act WE WILL NOT tell employees that another employee has been transferred suspended or discharged because of his union activities 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 immediate full and unconditional rein statement to Christ Lauritsen to his former position on the second shift 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 him that we have removed from our files any reference to his discharge and that the dis charge will not be used against him in any way ARMOUR CON AGRA