National Gypsum Co.

1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gold Bond Building Products, a Division of National Gypsum Company and United Paperworkers International Union, AFL-CIO-CIC and Hugh Hamilton and Ronald S Frey Cases 4-CA- 16354, 4-CA-16608, 4-CA-16649, and 4-CA- 16816 May 19, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 26, 1988, Administrative Law Judge Joel A Harmatz issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief answering the Respondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified 3 ORDER The National Labor Relations Board orders that the Respondent, Gold Bond Building Products, a division of National Gypsum Company, Milton, Pennsylvania, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Coercively interrogating employees concern ing union activity ' While this case was pending before the Board the Respondent filed motions to reopen the record for submission of evidence concerning mis conduct allegedly committed by discriminatee Ron Pfleegor after the is suance of the judge s decision We agree with the General Counsel op posing the Respondents motions that the allegations of misconduct even if established as true would not alter the result in this case and thus the motions are denied as lacking in ment To the extent that the alleged mis conduct may affect Pfleegor s entitlement to reinstatement and backpay we find it a suitable matter for the compliance stage of this proceeding See e g Bartels & Shores Chemical Co 274 NLRB 1034 fn 3 (1985) 2 The Respondent has excepted to some 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 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In the judge s decision he inadvertently found that in mid December 1986 Plant Manager Shimshock was directed by his superiors to pre pare a plan to bring the maintenance department within budget for the rest of the year In fact the record establishes that this directive occurred in mid September 1986 Further in analyzing the Respondent s unlawful distribution of over time the judge inadvertently referred several times to the date Sunday January 31 1987 The correct date is Sunday February 1 1987 3 Our Order corrects the judge s inadvertent failure to refer to one of the 8(a)(1) violations committed by the Respondent and other minor errors in his recommended Order (b) Creating the impression that union activity is subject to surveillance (c) Threatening employees with lockout and re- placement in the event that they support a union (d) Threatening employees with loss of benefits in the event that they designate a union (e) Soliciting employees, under coercive condi- tions, to repudiate their designations of a union (f) Threatening to terminate employees because of their support of a union (g) Discouraging activity on behalf of the labor organization by permanently laying off, denying overtime, or in any other manner discriminating against employees with respect to wages, hours, or terms and conditions of employment (h) In any like or related manner interfering with, restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Offer Ron Pfleegor and Clair Yeagle immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earn ings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge's decision (b) Remove from its files any reference to their unlawful layoffs and notify the employees in writ- ing that this has been done and that the layoffs will not be used against them in any way (c) Make whole employees Ron Pfleegor, Ron Frey, Jim Karnes, Judd Seiger, Bill Hockenberry, Hugh Hamilton, and Clair Yeagle for the loss of earnings they suffered by reason of the discrimina- tory denial of weekend overtime work to them on and after February 1, 1987 (d) Preserve and, on request, make available to the Board and its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at its Milton, Pennsylvania plant, copies of the attached notice marked "Appendix "4 Copies of the notice, on forms provided by the Re- gional Director for Region 4, after being signed by 4 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 293 NLRB No 142 NATIONAL GYPSUM CO 1139 the Respondent's authorized representative, shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason able 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 Respondent has taken to comply APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Ron Pfleegor and Clair Yeagle immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous ly enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their unlawful layoffs, with interest WE WILL notify them that we have removed from our files any reference to their unlawful layoff and that the layoff will not be used against them in any way WE WILL make whole employees Ron Pfleegor, Ron Frey, Jim Karnes, Judd Seiger, Bill Hocken- berry, Hugh Hamilton, and Clair Yeagle for earn rags lost by reason of our discriminatory denial to them of weekend overtime, with interest The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT question you concerning your own union activity or that of your coworkers WE WILL NOT threaten to lock you out and re- place you because of your support of a union WE WILL NOT create the impression that we are spying on your union activity WE WILL NOT threaten to take away your bene fits should you designate the Union as your repre- sentative WE WILL NOT under coercive conditions ask you to rescind your support of a union WE WILL NOT threaten to terminate you because of your support of a union WE WILL NOT discourage activity on behalf of United Paperworkers International Union, AFL- CIO-CLC, or any other labor organization, by per- manently laying off, denying overtime work, or in any other manner discriminating against our em- ployees with respect to their wages, hours, or terms and conditions of employment WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act GOLD BOND BUILDING PRODUCTS, A DIVISION OF NATIONAL GYPSUM COMPANY Joseph C Kelly and Richard Wainstein Esqs, for the General Counsel Steven S Greene and Daniel P Murphy Esqs (Constangy Brooks & Smith), of Atlanta Georgia for the Re spondent DECISION STATEMENT OF THE CASE JOEL. A HARMATZ, Administrative Law Judge This proceeding was heard by me in Lewisburg and Sunbury Pennsylvania on various dates between December 2 and 11 1987, on an initial unfair labor practice charge filed on January 29, 1987, and a consolidated complaint issued on October 9, 1987 alleging that Respondent independ ently violated Section 8(a)(1) of the Act by creating the impression that union activities were subject to surveil lance by interrogating employees concerning union ac tivity, by soliciting employees to withdraw union desig nation cards and by threatening employees and promis ing them benefits to dissuade them from supporting the Union The complaint further alleged that Respondent violated Section 8(a)(3) and (1) of the Act in various re spects, including the denial of overtime to seven named employees the termination of Gary Hagerman the issu ance of reprimands warnings, suspensions, and then dis charging Hugh Hamilton and Ronald Frey, and the to mination of Clair Yeagle and Ronald Pfleegor all in re prisal for union activity In its duly filed answer, Re spondent denied that any unfair labor practices were committed Following close of the hearing briefs were filed on behalf of the General Counsel and the Respond ent On the entire record in this proceeding, including con sideration of the posthearing briefs and my opportunity 1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD directly to observe the witnesses while testifying and their demeanor ' I make the following FINDINGS OF FACT I JURISDICTION Respondent is a Delaware corporation From its plant located in Milton, Pennsylvania the sole facility in volved in this proceeding, it is engaged in the manufac ture of raw paper for use in producing gypsum wall board During the calendar year preceding issuance of the complaint a representative period, Respondent in the course of its operations sold and shipped products valued in excess of $50,000 directly to points outside the Com monwealth of Pennsylvania The complaint alleges the answer admits, and it is concluded that the Respondent is now, and has been at all times material an employer engaged in commerce within the meaning of Section 2(5) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that United Paperworkers Intenational Union AFL- CIO-CIC (the Union) is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Preliminary Statement This case is primarily addressed to alleged acts of re taliation against union sympathizers after a fourth unsuc cessful attempt to organize production and maintenance workers employed at Respondents plant in Milton Pennsylvania The instant campaign began in October 1986 On December 5 1986 the Union filed a petition for a representation election Later, union meetings were held on January 28 and 29 1987 2 The election was held on February 3 and 4 with the results showing 23 voted for, and 57 against union representation No objections were filed to the results of that election As of the date of the hearing there has been no followup organization activity at that location Various allegations of discrimination are of foremost remedial concern in this proceeding With a single excep tion all involve maintenance department personnel, who assertedly were victimized by several forms of discrimi nation in consequence of their union sentiment Thus, it is alleged that during the month prior to the election, ' Credibility resolutions hereinafter made are occasionally accompanied by objective rationale This is intended to reinforce not diminish percep tions gained through my first hand observation of the witnesses and their demeanor Furthermore unmentioned testimony is rejected to the extent that it is irreconcilable with expressly credited evidence It is also noted that few if any interested witnesses were entirely believable They have been credited and discredited with no clear facial pattern and even against the same witness or where uncontradicted Though the resolu tions may at first blush appear to be inconsistent each is based on my impressions of the witnesses the possible influences of bias together with the internal consistency and plausibility of their accounts when consid ered against the quality of corroborative sources including objective fact experience documentation and the believability of related testimony 2 Unless otherwise indicated all dates refer to 1987 and continuing thereafter certain employees were sub jected to discriminatory reprimands reduced opportunity for participation in weekend overtime, suspensions, and finally discharge Beyond that the complaint alleges that Gary Hagerman, a production worker, was discharged during the critical preelection period on January 14, 1987, in reprisal for his union activities Finally the com plaint alleges that the Respondent overstepped legitimate bounds through a variety of statements by seven differ ent management representatives which tended to coerce and restrain employees in the exercise of Section 7 rights B Concluding Findings 1 Interference, restraint and coercion a By Ron Croll The complaint alleges that Respondent independently violated Section 8(a)(1) when Ron Croll, the shipping and receiving superintendent, in November 1986 created the impression that union activity was subject to surveil lance, and threatened that the Respondent would not bargain with the Union even if designated as collective bargaining representative Gary Hagerman, an alleged discriminatee, was the sole witness attesting to Croll s re marks In his posthearing brief, the General Counsel con cedes that the latter s testimony fails to substantiate the precise offenses outlined in the complaint Instead the General Counsel asserts, for the first time in his brief that Croll engaged in coercive interrogation, that the matter was fully litigated and that this unalleged unfair labor practice should be remedied Hagerman testified that Croll initiated a conversation concerning the Union approximately in November 1986 in the receiving office Croll allegedly indicated that he heard that the Union was trying to get in the plant again going on to state that it would never happen again be cause they had been trying for years and years and that it always would be voted down Hagerman allegedly argued back that this year would be a little different be cause the Union was trying to sign up a majority before going to an election Croll allegedly asked how many cards were signed Hagerman did not reply According to Hagerman Croll periodically questioned him concern ing the Union s progress and inquired whether he had signed a card and was pushing the Union The latter as sertedly responded in the negative, but when asked by Croll what the problems were and why everybody wanted a union, Hagerman claims to have stated that maintenance seemed to have the most problems and they thought a union would help them Croll s office was located close to Hagerman s work area, but he was not Hagerman s supervisor Croll admits to discussing the Union with Hagerman on about dozen occasions However he avers that Hagerman woud initi ate the conversations by informing him of the number of cards already obtained and those yet to be acquired before the Union would achieve a majority Croll denied ever asking Hagerman whether he signed a card and in dicates that Hagerman never told him whether he did so Nevertheless, Croll relates that there was no question in NATIONAL GYPSUM CO his mind where Hagerman stood on the issues, and that he communicated to Shimshock his belief that Hagerman was prounion Croll impressed as the more reliable witness Impor tant aspects of Hagerman s overall testimony struck as too pat and most unlikely He impressed as willing to swear to anything that might support the complaint His singling out maintenance personnel as the most disgrun tied group, and hence the group most prone to support the Union, falls within this category From the record it is apparent that the most ardent union supporters were among the production force In contrast union settle ment within the maintenance department as a whole did not present a consistent picture, nor the kind of outspo kenness that would command attention of outsiders In any event, as shall be seen, my misgivings concerning Hagerman are based on even broader considerations Ac cordingly, the unlawful conduct imputed to Croll is un substantiated by credible proof and shall be dismissed b By Dusty Pfirman The complaint alleges that, in December 1986, Re spondent violated Section 8(a)(1) through Tour Foreman Pfirman s interrogation of an employee Here again, Ha german was the sole witness offered on behalf of the al legation He relates that Pfirman remarked that an elec tion petition had been filed, adding that he could not un derstand why they would want a union in here again Hagerman claims to have replied this was a long time coming, and that maintenance had the most gripes they wanted a union in to represent them Although Pfirman was not called as a witness my mistrust of Ha german ran sufficiently deep to reject his testimony albeit uncontradicted In dismissing the 8(a)(1) allegation however, I conclude in any event that the rhetorical statement atributed to Pfirman was no more calculated to elcit a response than typical antiunion argumentation and hence did not constitute coercive interrogation See United Artists Theatres 277 NLRB 115, 123 (1985) c By Brian Baker The complaint attributes a variety of independent 8(a)(1) allegations to Maintenance Superintendent Baker Clair Yeagle, an instrument technician in the mainte nance department whose job was eliminated in March 1987 under allegedly unlawful conditions, testified in support of alleged interrogation and surveillance He re lates that in January he requested a meeting with Baker to discuss rumors of an impending layoff Baker denied being mindful of this possibility Yeagle then asked why supervisors seemed to be ignoring him walking by with out even looking at him or speaking Baker allegedly ex plained that this was Because they had me [Yeagle] fig ured, there was no sense talking to me, I was for the union and that was cut and dry 3 Yeagle, who on an isolated basis had distributed two blank union cards, testified to another conversation on January 2, 1986, also in Bakers office At this time, s The General Counsel in his brief fails to advert to this conversation as substantiating any allegation in the complaint Accordingly I make no findings of illegality thereon 1141 Baker sent for him, inquiring if Yeagle had a problem with either Baker or the Company Yeagle responded in the negative, but inquired about why Baker would ask Baker allegedly stated Word is around that you ve been passing out union cards and you re for the union Baker denied that he had any conversation with Yeagle concerning the Union during the months of No vember and December 1986 or January 1987 He specifi cally denied ever telling Yeagle that he had heard that he was passing out cards In fact, he denied knowledge that Yeagle had done so or even that he favored the Union 4 Scotty Hamilton, another maintenance department em ployee whose discharge is under scrutiny in this case, at tributed additional 8(a)(1) conduct to Baker He avers that in late January, the day after he attended a union meeting he was summoned to Bakers office where the latter stated You re Scotty s bastard I know you re for the union I can t fire you I don t like you I can t fire you because I don t like you But I can make you quit Baker testified that it was his understanding that Ham ilton was not a union supporter, having told Baker that he was procompany on three or four occasions He denies having any other conversations with Hamilton on this topic As shall seen, Baker was an untrustworthy witness However, no more could be said of Hamilton, and in this one on one conflict, I am inclined to give the Respond ent benefit of the doubt Accordingly, no violation is found on the latter s testimony Yeagle, however impressed me more favorably than Baker and as between them I prefer the former Based on Yeagle s credited testimony, I find that Baker s open mg remarks in their January 2 conversation were calcu lated to elicit information regarding his union sympathy despite the fact that his union activity was conducted under covert circumstances Furthermore the questioning lacked legitimate purpose, and was conducted coercively at the locus of supervisory authority In this respect, the Respondent violated Section 8(a)(1) of the Act On the other hand a like conclusion is unwarranted with respect to the contention that Baker created the impression that Yeagle s protected activity was subject to surveillance According to Yeagle s own account Baker attributed this information to rumors, and hence the latter identified a source dispelling implication that management was ac tively engaged in spying or surveillance Accordingly the 8(a)(1) allegation to this effect is dismissed See, e g , Sheraton Plaza La Reina Hotel 269 NLRB 716, 717 (1984) d By Richard Cass Richard Cass is Respondents personnel and safety manager at the Milton plant The complaint alleged that Respondent violated Section 8(a)(1) when Cass created the impression that union activity was subject to surveil * Contrary to the General Counsel I see no direct conflict between Shimshock s testimony that Baker reported that he was getting mixed signals from Yeagle and Baker s dental of knowledge that Yeagle was prounion 1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lance Ron Frey another maintenance department em ployee who was allegedly terminated under discriminato ry conditions, testified to a conversation between Cass and a group of unidentified individuals He relates that he heard Cass refer to the upcoming election by stating They were not worried because they knew all who was for it Frey did not recall anything else having been said by Cass on that occasion Cass testified that he en gaged in `no discussions with Frey regarding the ad vantages or disadvantages of the Union, nor did he ever talk to Frey regarding the Company s assessment of the union campaign These denials were not entirely re sponsive Thus Frey s description of what transpired plainly conveyed that he overheard or eavesdropped on a conversation between Cass and others Yet, Cass was not questioned whether he ever made the remark in other contexts In the circumstances despite reservations concerning Frey s reliability, in this instance, his uncon tradicted testimony was believed Based thereon, it is concluded that because Cass failed to disclose the source of his information, employees rightfully could assume that their union activities were subject to surveillance a factor which would inherently tend to coerce and re strain them in their right to engage in organizational ac tivity Hence the Respondent thereby violated Section 8(a)(1) of the Act e By John Bridges John Budges, at times material was a tour foreman and an admitted supervisor It is alleged that the Re spondent violated Section 8(a)(1) of the Act through his threats that wages would be reduced if employees select ed the Union as well a comment that the Respondent would not bargain even if the Union were designated as the employee representative Also attributed to Bridges is coercive conduct in the form of interrogation, creating the impression of surveillance and the solicitation of union withdrawals In support alleged discriminatee Gary Hagerman testa feed that sometime after December 26 1986 Bridges called him to his office on two or three occasions with other receiving department employees In the course of those meetings, Bridges allegedly said that it appeared the Union was trying to get in again That they would never get in here they could try if they wanted to but they would never negotiate a contract because they would lock them out first and that we [would] come back and work for minimum wage According to Hagerman Bridges added that he had been a union stew and in another plant, and thus was familiar with the Company s practices in negotiating contracts I did not believe Hagerman He was not assigned to the shipping and receiving department and was not sub sect to Budges supervision Employees in that depart ment who allegedly attended those meetings were nei ther called, nor identified Budges did recall a conversa tion concerning the Union with Hagerman in the pres ence of Ron Troxell or Greg Thomas in the receiving office He admits that he expressed his prior experience with unionization while employed for 15 years at Re spondent s Anniston Alabama plant, going on to state would have a contract they would have to negotiate with the Union as required by law Bridges also criti cied the Union s accomplishments at that location mdi cating that while collecting his monthly dues its negoti ating posture on wages was submissive, with the Union refusing to strike, but always accepting the Employer s last offer In crediting Bridges, I again note my mistrust of Hagerman Moreover, Bridges account semingly re sembles more accurately the bargaining history at Annin ston, where it is fair to assume several collective bar gaining agreements had been negotiated over the years In this light the rationale imputed to him would be easily verifiable as absolute nonsense I believe Bridges version to be the more probable and prefer it to the un corroborated account of Hagerman Accordingly as his remarks merely constituted an expression of argumenta tion protected by Section 8(c) of the Act the 8(a)(1) al legation in this respect shall be dismissed On the other hand Daniel Masser, an incumbent em ployee with a long history of service, testified that on November 11 1986 Bridges approached his work station and inquired whether Masser knew wno was for the Union Masser denied knowledge Bridges then invited Masser to the privacy of his office where he stated that Masser was known to have signed a union card, and that the Company would not let the Union get in and that they would shut the doors and hire all new workers Bridges allegedly also warned that Masser would be hurting himself and his family if the Union got in be cause all benefits would be lost and employees would have to negotiate for what they want After asserting that the Union would be in automatically if enough cards were signed Bridges advised Masser that if Masser wished, although he was not supposed to do so he would help him get his union authorization card back Later Bridges provided Masser with addresses of the Union and NLRB so that Masser could repudiate his card On November 13 1986, Masser wrote the NLRB expressing his intent to revoke his union authorization 5 Bridges did not deny that he discussed this issue with Masser He also admits to opening the conversation by stating that he had heard that Masser had signed the card When Masser acknowledged that this was so Bridges claims to have expressed surprise noting that he had trained Masser had supervised him on and off for 6 or 7 years and hence their relationship had been close Masser replied that he was talked into singing the card and did not know what he was doing and according to Bridges, inquired about how he could get out of it? Several days later, according to Bridges he provided Masser with the addresses, and at that time volunteered his own disenchantment with the Union while employed at the Alabama plant As an incumbent employee with no perceptible interest in the outcome, Masser is regard ed as an entirely credible witness In context Bridges questioning of Masser concerning union proclivities of coworkers and his professed knowledge that Masser had signed a card were unlawful as having been made under coercive circumstances The warning that management "If the Union was voted in, that wouldn t mean they S See G C Exh 2 NATIONAL GYPSUM CO would lockout and replace employees was an unmistak able threat at the foreground of an equally unlawful insti gatlon of Masser's repudiation of his union designation The remark that, on unionization, benefits would be lost, since offered in conjunction with the statement that Masser would be hurting himself and his family, also transcended legitimate bounds of argumentation,6 and was calculated to convey that employees would lose automatically on designation of the Union Whether viewed collectively or severally, each of the remarks outlined above violated Section 8(a)(1) of the Act f By John Thomas At times material, Thomas was Respondents purchas ing agent Incumbent employee William Gill, who denies that he was a union supporter testified that on or about January 13, 1987, he confronted Thomas, inquiring about what Thomas thought of this mess This reference to union activity was met by Thomas remark Some of these people better wise up or they re not going to be here we re not going to go through this every year Thomas was called by the General Counsel as an ad verse witness, but was not otherwise examined, and hence did not refute Gill s testimony Gill is credited Nonetheless, the Respondent denies that it was bound by Thomas conduct There is no merit in this view Thomas was held out to be a representative of manage ment, and at minimum, held apparent authority in the eyes of employees, enabling his words to be taken as originating at the highest managerial levels of the plant Thus Thomas had been employed by the Respondent for 25 years some 17 at the Milton facility Prior to 1984 Thomas was the superintendent of shipping and re ceiving In 1984 he became purchasing agent, a reclassifi cation that was taken by Thomas as a promotion No doubt rank and file workers would agree By virtue of his new job, Thomas reported directly to Plant Superin tendent Erhardt and functioned at the same managerial echelon as the personnel manager and the maintenance superintendent His position is salaried he had his own office and his contacts in the plant are not with employ ees but with department heads and supervisors In these circumstances, his antiunion remarks would naturally be taken by employees as expressive of managements stance on the issue of union representation Accordingly, as Thomas had been endowed with apparent authority to act on behalf of management, the Respondent violated Section 8(a)(1) through his threat to eliminate union sup porters Sears Roebuck de Puerto Rico 284 NLRB 258 (1987) g By Tom Shimshock The General Counsel offered alleged discriminatees Hamilton and Frey to substantiate that in June 1987, Plant Manager Shimshock promised benefits to antiunion employees while threatening reprisals against those who supported the Union This indendent 8(a)(1) allegation derives from a regular shift meeting held in June 1987 4 6 See Mississippi Chemical Corp 280 NLRB 413 (1986) 1143 months after employees decisively voted against repre sentation by a count of 57 to 23 Shimshock presided over the meeting Frey testified that Shimshock addressed the group opening with a pro duction report but then going on to state, There were still 23 greedy people in this plant and as plant man ager he was going to reward the people who kept the plant as it was and he would continue to do so Hamilton s version was a bit more graphic He claimed that he arrived late for the meeting, and that, as he en tered, Shimshock looked him straight in the face stating There are 23 greedy people in this plant who voted for the Union According to Hamilton Shimshock then added, I m goint to satisfy the 65 who never voted for the Union 8 Shimshcok testified that it was during shift meetings on February 11 1987 that he last referred to the regular ly conducted election He claims to have first thanked those who supported the Company s position He next referred to 23 people but states he simply described them as dissatisfied and invited them to avail them selves of the open the door policy, adding that he ap parently had not answered all their questions during the preelection campaign Shimshock s version of the June meeting is to the effect that the Union or the election re sults were not mentioned directly or indirectly in his comments He did avert to the responsibility of employ ees to pull their share of the load in areas of safety, pro duction and quality Without mentioning names, he re ferred to the fact that some employees were not doing so and in this context he did state there seems to be a greedy few at the plant who are trying to tear down what has taken those who have accepted responsibility [over the years] to build up at this plant Finally he ad monished that he would not tolerate skating or leaching everybody was going to carry their own weight 9 Despite misgivings concerning Shimshock in this in stance his testimony was viewed as the more plausible At the same time, Frey and Hamilton were unimpressive and hardly could be described as disinterested Thus both were discharged subsequently during the summer of 1987, and well after the one sided election Quite clearly, the unsuspicious timing of those terminations would be viewed in an entirely different light if Shimshock 4 months after the Union s demise had chosen to iterate a lingering hostility Adding to my doubt is the fact that Frey and Hamilton were not entirely consistent about what was said and both labored under a limited recollec tion of what transpired Furthermore not a single out side witness was called to confirm their accounts In con ° Frey identified several workers who told him that Shimshock made a similar reference at the meetings they attended None were called as wit nesses 8 The General Counsel contends that a threat is inferable from the fact that Shimshock allegedly referred to the prounion employees as greedy while indicating that he would reward those who voted against union representation Were I to credit Hamilton and Frey this interpretation would be rejected 8 Although it was my initial reaction at the hearing that the use of the term greedy was inappropriate in the context Shimshock described on further reflection it is conceivable that this term might be used to char actenze those who do not shoulder their share of the workload 1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD trast Shimshock s version of both February and June meetings was corroborated by Brian Baker and Person nel Manager Cass In composite form, their testimony was supported in material part by Jim Karnes, a witness for the General Counsel and former prounion mainte nance department employee Karnes, who retired on April 10, 1987, testified that at a shift meeting a couple weeks after the election, he heard Shimshock state, we still r have 23 people who are dissatisfied Considered with the foregoing is the improbability that Shimshock would reopen the union debate 4 months after the un contested election, but while several unfair labor practice charges were pending and a complaint had recently issued Accordingly based on Shimshock s credited testa mony it is concluded that the references to a greedy few' was specifically linked to those who shirked their job responsibilities, and pertained to no other group or alliances Being irrelevant to statutory concerns, the re marks accompanying that characterization did not vio late Section 8(a)(1) 2 The discharge of Gary Hagerman Of the five discharges under scrutiny in this case four involved maintenance workers As indicated, Hagerman was not within this group, being a stock leader in the production area Moreover, Hagerman was terminated on January 14, 1987, and hence, his was the only dis charge effected by Respondent during the critical pre election period Hagerman testified that prior to the discharge, he had professed union support by signing an authorization card and discussing the pros and cons of organization with co workers Though not among those who initiated the campaign, nor one of the principal union activists, he does relate that he gave a blank authorization card to one employee, who never returned it Hagerman also tes tified that he rode with Lynn Probst the International representative responsibile for the campaign, and helped him locate the homes of coworkers 10 At the time of his discharge Hagerman had been em ployed by the Respondent for almost 12 years-8 as a stock leader a job crucial to the quality of the plant s output By way of background the facts show that the Milton facility produces paper manufactured from baled scrap 11 The production process requires a proper blending of scrap having different characteristics, including corrugat ed or cardboard materials having long fibers, short fi bered or mixed scrap consisting of magazines and newspapers and finally, a third variety called cut down, ' consisting of previously manufactured but recy cled paper These different scrap forms are fed into the production process after blending pursuant to a pre scribed ratio Quality paper of suitable grade and consist 10 Probst did not identify Hagerman as among those who assisted him in this regard 11 No end product is produced at this location Instead Milton manu factures feed stock in the form of various grades of paper that are distnb uted to Respondents eight gypsum plants Because the Milton Plant merely produces a raw material and has no market exposure it is consid ered a cost rather than profit center with expenses of the operation allo cated to the sister plants that utilize the paper produced at Milton ency is achieved only if long and short fibered scrap is combined in proper proportion Management devises the formula for achieving this objective but the stock loader is the sole employee responsible for balanced production, through precise implementation of the formula Unquestionably, the stock loader occupies a position of great responsibility At the same time, the job is neither exertional, nor mentally demanding The stock loader uses a forklift truck to select and haul bales of the pre scribed stock from a warehouse area to conveyors After unloading the appropriate bales, he cuts the wires, pushes the bales onto the conveyor with his truck and then marks the type of bale and its weight on a tally sheet Having reached this stage, the bale is committed and any mistake in loading is irretrievable The scrap is then car reed to a pulper where it is dumped, broken down mixed with water, and subjected to a variety of cleaning proc esses Finally, the material is placed on a belt where it is converted into rolls of sheeted paper The capacity of the conveyor is about 20 tons of stock per hour Once loaded on the conveyor, it takes about 1 hour for a bale to reach the pulper The General Counsel asserts that the discharge was motivated by Respondents desire to eliminate a union sympathizer Initially the General Counsel is favored by ample evidence that Respondent acted againt Hagerman either with knowledge or strong suspicion that he would vote for the Union Thus Ronald Croll Respondent s shipping and receiving superintendent testified that during the union campaign he participated in up to a dozen discussions with Hagerman, most of which in volved Hagerman s voluntary statements as to gains by the Union toward its goal of securing signed designation cards from a majority Based thereon, Croll testitifed that he reported his belief that Hagerman was prounion to Tom Shimshock the plant manager and the highest rated management official at the Milton location 12 With this knowledge, Respondent discharged this longterm employee only 2 weeks before the representa tion election This despite the fact that such severe disci plane had seldom been invoked in the recent past not a single bargaining unit employee had been discharged since 1983 13 These elements together with union 12 Shimshock claimed that he was uncertain of Hagerman s union sen timent at the time of discharge He admitted that Ron Croll had informed him that Hagerman was prounion but that this was countered by Terry Yarger a substitute tour boss who stated that Hagerman was procom pany Yarger did not testify and the basis for his report is unclear On the other hand Croll s account of his frequent conversations with Hager man revealed the latter s firm unmistakeable commitment to the Union In this light it is not unreasonable to infer that Shimshock contrary to his testimony had strong reason to believe that Hagerman would vote for the Union is According to the testimony of Shtmshock there was a single super vening termination in July 1985 However the individual affected was Charlie Rhodes a tour foreman whose job would be excluded from the appropriate unit on statutory grounds Respondent explains that the 1987 shift in disciplinary philosophy stemmed from Shimshock s emergence as plant manager in 1985 and his mandate that supervision would not toler ate deficient performance unsafe work practices low productivity or in subordination Although Shimshock testified that he made supervisors more accountable for production quality and safety there is no evi dence that he importuned them to a more aggressive implementaion of Respondents disciplinary machinery NATIONAL GYPSUM CO animus, combine to support an inference that protected activity was at least a' part of the Employers motive a showing adequate to require the burden [to] shift to the employer to demonstrate that the same action would have taken place even in the absence of protected activity ' See Wright Line, 251 NLRB 1083, 1089 (1980), NLRB v Transportation Management Corp, 462 U S 393 (1980) By way of defense Respondents witnesses attest to the fact that Hagerman s discharge was triggered by a serious breach of his work responsibility in the form of a deliberate failure to follow formula while supplying the corrugated conveyor John Bridges, a tour foreman at the Milton plant for 17 years, was Hageman s immediate supervisor on January 14 1987 In that capacity, Budges was responsible for the entire operation during the 4 p in to midnight shift, which was worked on that date by Ha german The formula prescribed for Hagerman s corru gated conveyor that evening was 6000 pounds of corru gated, to 2000 pounds of mixed paper, to 1000 pounds of cutdown 14 That evening, at approximately 7 p in, Bridges began to encounter production problems in the form of wet paper At 7 30 p in he received a telephone call from Plant Superintendent Louis Erhardt, who was second in command to Shimshock Bridges reported his difficulties which were described as intermittent, having subsided at the time of the Erhardt conversation Subsequently the problem reappeared at approximate ly 8 30 p in At approximately 9 p in Budges distributed paychecks to employees including Hagerman He then resumed his effort to identify the cause of the problem Being unsuccessful, he again telephoned Erhardt shortly before 10 p in Erhardt returned the call about 5 minutes later Budges reported that the wet paper had resur faced Erhardt decided to go to the plant, but told Bridges we ve checked everything its got to be the furnish 15 To that point Budges had not investigated that angle for he had no reason to suspect that Hager man, an experienced loader with the highest seniority in that classification, had failed to adhere to the formula On his way to the conveyor area Bridges observed that stock in the corrugated pulper suggested an over load of mixed short fibered stock When Bridges arrived at the conveyor he related that it too had been loaded with too much short fibered stock Thus at the top of the conveyor he observed three bales of corrugated, fol lowed by two bales of mixed stock followed by four bales of corrugated and then two more bales of mixed stock When Bridges confronted Hagerman concerning the excessive mixed scrap, Hagerman referred him to his tally sheet, insisting that the conveyor was loaded cor rectly A heated argument ensued after Bridges indicated that he could see that the conveyor was loaded wrong irrespective of Hagerman s entries on the tally sheet As the argument progressed Bridges eventually told Hager man to go home When Hagerman protested and in quired as to why, Bridges indicated insubordination 14 The combined components of the formula are collectively referred to as a round 15 Furnish is the term used to describe the supply of scrap fed to the conveyor 1145 Ultimately Bridges relented, telling Hagerman to wait until Erhardt s arrival Erhardt appeared shortly thereafter Bridges reported on his encounter with Hagerman, then both left for the conveyor area On encountering Hagerman, Erhardt asked how come he was still there Hagerman indicated that he was working, and that he was told by Bridges to remain until Erhardt arrived Erhardt then sent Hager man home, indicating that the matter would be discussed either the next day, or at Hagerman s convenience Erhardt basically confirms Bridges account Thus he avers that in the 7 30 p in telephone report Bridges indi cated that he would continue to check possible causes and would get back to Erhardt Erhardt went on to testa fy that later, at 10 p in he told Bridges that the problem had to be at the furnish He therefore instructed Bridges to check the conveyors, also indicating that he would come to the plant He arrived at the plant at ap proxiamtely 10 20 p in and, after being updated, he and Bridges departed from the conveyor area 16 Erhardt claims that at the conveyor, he observed two bales of mixed stock, weighing about 1500 pounds each, sitting on the plate in front of the conveyor In addition, half loaded on the conveyor and half on the plate were two bales of corrugated, weighing approximately 1000 pounds each In front of the latter were two more bales of mixed stock At the top of the conveyer were two ad ditional bales of mixed plus four of corruogated Erhardt testified that this was obviously wrong in that there should not have been six bales of mixed paper anywhere near the conveyor at one time 17 Erhardt added that when he observed the tally sheet completed by Hager man, he found that it contained entries inconsistent with what he observed on the conveyor 18 Erhardt relates when he caught up with Hagerman he sent him home advising that he was not willing to discuss the matter at that time that Hagerman could come back the next day when they would discuss whether he had a job When Hagerman mentioned that the next day was his day off Erhardt indicated to come in at Hagerman's nearest con venience Gary Thomas an employee in the receiving depart ment who had previous experience as a stock loader, finished Hagerman s shift that evening Bridges testified that it was not until after he left work that evening that the problem with wet paper resolved itself, and that by the next morning, the corrugated line was producing a 18 Erhardt testified that when he first observed Hagerman both estab ,,shed eye contact but Hagerman drove off to the rear of the warehouse Budges does not mention any unusual reaction by Hagerman to their at rival 17 Erhardt testified on cross examination that on arrival at the convey or Bridges commented that the condition had worsened since his previ ous visit Bridges did not confirm that he made any such comment and in fact it is the sense of his testimony that on the second visit he paid little if any attention to precilsey what bales were in the area 18 See R Exh 14 Hagerman s tally sheet contained an erroneous entry pertaining to his next to last round Erhardt also testified that when he arrived in the conveyor area no cutdown was in sight even though the formula in place at the time called for 6000 pounds of hard 2000 mixed and 1000 cutdown Although the tally sheet did not indicate that cut down had been used Erhardt conceded that this may have been excuse ble for it is possible that no cutdown was available at the time 1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD good product There had been no adjustment to the equipment to his knowledge and the source of the prob lem, from all appearances, was isolated to the furnish Hagerman s version admits of a diversion from the for mula, but suggests that it was minor He testified that when he reported for work that day, the formula had been changed from the 6 to 2 ratio of the night before to six parts hard, two parts soft, and one part cutdown, a softer mix than customarily run When Bridges came by about 4 30 p in , Hagerman asked if Bridges wanted to increase the corrogated to a 7 to 2 ratio, but Bridges re plied in the negative, indicating that everything was run ning fine Hagerman related that when Bridges next ap peared at 9 30 p in to deliver his paycheck, Bridges indi cated that there had been a change, and that Things weren t running too good right now Hagerman next saw Bridges at 10 30 p m At that time Bridges accused Hagerman of doing something wrong, explaining that the stock suddenly had gotten real soft and looked sloppy Hagerman argued that he followed the correct proce dures and that his tally sheet would confirm this was so This produced the argument 19 Ultimately, Hagerman admittedly discovered that he had in fact made a mis take In this respect, he claims to have noticed that at the bottom of the conveyor were two bales of mixed, two bales of corrugated, and two more bales of mixed The latter were not supposed to be in that spot Instead three more bales of corrugated were supposed to precede them 20 Hagerman confirmed that in the course of their heated argument, Bridges sent him home, but reconsid ered stating that he could discuss the matter with Er hardt who, according to Bridges, was going to be in here in about five minutes " At this point Hagerman ac knowledged his mistake to Bridges, and inquired wheth er he should remove two bales of soft mix Bridges told him to do so and to raise the formula by 1000 pounds of corrugated Hagerman claimed that he then removed three bales of mix to facilitate the new 7 to 2 formula About 5 minutes later when he returned to the work area, Bridges and Erhardt were coming down the steps leading to the conveyor area Erhardt sent Hagerman home telling him to come in the next day, and at that time they would see whether he had his job A meeting was held the next day January 15 Shim shock presided He first gave Hagerman the opportunity to explain his version of what had transpired the previ ous night He then accused Hagerman of intentionally double stacking the conveyor, a condition observed by both Erhardt and Bridges 21 Hagerman denied doing so, 19 Hagerman did not confirm or deny that Bridges backed his accusa Lion by referring him to the bales actually in the conveyor area 20 Hagerman attempted to mitigate the consequences of this error by testifying that the two bales of mixed were on the plate and uncommit ted as the wires had not been cut Contrary to Hagerman the fact that they were even in the area is difficult to understand in light of the fact Hagerman himself was aware of and even questioned the fact that the formula called for a softer than usual stock His mistake is compounded even further by his admission that at 9 30 p m he had been informed by Bridges that they were encountering production problems One would think that an experienced stock loader would be particularly careful to avoid overloading soft mix in these circumstances 21 Double stacking is a process which corrugated and mix from two rounds are combined and placed on the conveyor in sequence i e a 6-to 2 formula would actually be run 12 corrugated in a row followed by 4 but was told to disprove what had been observed by Er hardt and Bridges When he was unable to persuade that the latter were in error, Hagerman was informed that his check would be made available the next day, and that he was discharged The discharge report prepared by Shim shock stated as follows Employee was misloading [double loading] pulper conveyer, falsified tally sheets and refused to leave premises as directed by Foreman The misloading caused numerous operational upsets and led to the production of off quality paper 22 In the final analysis, the grounds on which Respondent acted in terminating Hagerman are not inherently suspect and, at least in part, were substantiated by Hagerman, himself His own testimony reveals that with knowledge of a quality problem within his product line, he trans ported excessive bales of soft mix to the load area '23 while making erroneous entries on his tally sheet In this light, the scenario depicted by Bridges and Erhardt as sumes heightened probability, and their accounts about what they observed at the conveyor are credited Based thereon, Respondent rightfully could have assumed that Hagerman, the most experienced stock loader in the plant, intentionally sabotaged that evenings produc tion 24 Accordingly, in view of the seriousness of the offense which has been substantiated by credible evidence, the Respondent has demonstrated that it would have termi nated Hagerman even if he or other employees had not engaged in activities protected by Section 7 of the Act As the General Counsel has failed effectively to counter this showing, the 8(a)(3) and (1) allegation in this respect shall be dismissed 3 The alleged discrimination in the maintenance department a Overview The proponents of the complaint target the mainte nance department as the focal point of Respondents vin dictive reaction to unionism Thus it is alleged that maintenance department employees Ronald Frey and mixed There is no dispute that the equipment cannot handle the swings between long and short fibered stock that would occur in consequence of double stacking The product would swing to very wet to very hard and dry 22 See R Exh 4 According to Shimshock the falsification of records allegation was founded on the variance between the tally sheet prepared by Hagerman and the stock on the conveyor as observed by Erhardt and Bridges 23 As Respondent correctly observes Hagerman s assertion that the mixed bales were uncommitted is suspect Thus he relates that these bales were on the plate at the threshold of the conveyor along with two corrugated and two additional bales of mixed Contrary to Hagerman considering the average dimensions of each bale it is inconceivable that the 10 by 10 foot plate could accommodate six bales 24 Contrary to the General Counsel I see no inconsistency between Bridges explanation of how and when the problem was resolved and the double stacking allegation I also agree with Respondent that daily in ventory records would provide no proof of relevance to the issue these documents would merely show daily volume of stock consumed and not the sequence of loading NATIONAL GYPSUM CO Hugh Hamilton were unlawfully issued disciplinary warnings, suspended, and then discharged in reprisal for their support of the Union It is further alleged that Re spondent violated Section 8(a)(3) and (1) of the Act by abolishing the position of instrument technician to fa cilitate the termination of Clair Yeagle because of his union activity It is similarly alleged that the one of two electrician jobs was eliminated to enable termination of Ronald Pfleegor another prounion maintenance worker Finally the complaint alleges that these and certain other employees in the maintenance department were victim ized by a change in Respondents practice of distributing weekend overtime an adjustment which reduced over time opportunities made available in 1987 to union sup porters Respondent defends on grounds it had no knowledge of union settlement of the employees affected, that the disciplinary action including the discharges was based on legitimate cause, and that the reduction of overtime the cutback of an electrician, and elimination of the in strument technician were based exclusively on economic considerations Hence it is denied that any of the above actions were based on any form of protected activity b Alleged economic reductions (1) Preliminary statements (a) The overtime cutbacks Before addressing the overtime issue it is necessary to consider a preliminary contention by the General Coun sel that Respondent, before the election, perceived that certain employees in the maintenance department were prounion, while others were not, and split the depart ment along those lines for the purposes of conducting an bunion meetings This division while relevant to the motive underlying all issues of discrimination is central to the overtime question because, as matters unfolded, those relegated to the allegedly proumon group were prejudiced dramatically in the assignment of overtime during 1987 Prior to the advent of the Union, as a standard prac tice, management attempted to conduct separate monthly meetings among all employees, including the mainte nance department During the organizational campaign, these meetings were one of the vehicles used by Re spondent to deliver its antiunion message Prior to Janu ary 1987 all 16 maintenance employees attended these so called shift meetings in their department This was the case in mid November when Respondent for the first time addressed the union question Shimshock presided and several employees including alleged discriminatee Pfleegor specifically challenged points made by Shim shock concerning unionism The debate became heated and the maintenance meeting was protracted to 2 hours while similar meetings with other employees averaged only 45 minutes The next set of shift meetings were held in January, the month prior to the election Commencing with the first, the maintenance department was split with two sep arate sessions being held The two groups were as fol lows Group A Bob Hartley Ammon Rholand Will Mensch Ron Runkle Mel Metzger Jack Svern Earl Rhodes Harold Sponenberg Jim Sullivan 1147 Group B Ron Frey Ron Pleegor Hugh Hamilton Judd Seiger Bill Hockenberry Clair Yeagle Jim Karnes The General Counsel insists that the above division was knowingly made along union lines and that this iso lation of pro and anti union maintenance personnel estab lished a profile for discrimination with respect to the dis tribution of weekend overtime Over the years and apparently beyond recent memory, employees in the maintenance department had been broken down into two groups for purposes of re ceiving weekend overtime Under this system overtime was distributed on a rotation basis, with all maintenance employees basically sharing equally in Saturday and Sunday work Interestingly enough, Baker testified that the historic overtime groupings were essentially the basis on which he split the maintenance department in January for purposes of the shift meetings Respondent does not deny that 1987 overtime was re duced but contends that this was an aspect of a broad effort to contain maintenance expenditures in order to bring that operation into line with budget allocations For this reason it is argued that prescheduled overtime on a rotating basis was terminated in January 1987 Ac cording to Shimshock thereafter, maintenance personnel were selected for weekend overtime based on the task the particular maintenance worker was performing with Baker adding that he thereafter scheduled overtime based on skill and ability, with consideration given to the jobs scheduled to be done against the skills available to complete them Baker explained that because available weekend work had been cut by one half, it was essential that the most effective personnel be utilized to meet work demands during those periods However although Baker claims to have made the determination about which employees possessed the requisite skills Frey Hamilton Hockenberry Yeagle Seiger Karnes and Pfleegor all from group B sustained an almost total re duction in their weekend overtime opportunities Baker attempted to explain away this coincidence on grounds that the latter either were less productive, less quality conscious or less skilled than the others (b) Job eliminations Prior to the union campaign and until about a month after the election the maintenance department consisted of 13 millwrights, 2 electricians and 1 instrument techni can On March 6 Clair Yeagle, the sole instrument tech nician, and Ronald Pfleegor one of two electricians were informed that they would be laid off permanently because their jobs had been abolished 1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pfleegor had been employed as an electrician since 1977 During almost 10 years employment with the Re spondent, he had not received a single written discipli nary warning, while compiling an exemplary attendance record Pfleegor admits to very little union activity but indicated that he signed a union card and attended a union meeting It is a fact however that during the safety meeting held in November he openly confronted Shimshock challenging the latter s assertion that em ployees had struck an organized plant in the area Pflee gor argued that those workers had been locked out, adding that wages in the area were higher because bouyed by local plants that were union Based on his outspoken position in this respect, the Respondent had a basis for suspecting that he was among the union sup porters in the work force Yeagle had been employed for almost 6 years He was Respondents only employee occupying the position of instrument technician In that capacity he was responsi ble for maintaining all automatic valves, level controls steam panels, boiler controls, the computer system and almost all automated equipment Yeagle was one of two maintenance men who solicited authorization cards and in January had been informed by Baker that management was mindful that he was prounion (3) Concluding analysis (a) The prima facie case The General Counsels case in chief amply established that union activity was at least a motivating factor in both the reduction of weekend overtime to employees in group B and the terminations of Yeagle and Pfleegor See Wright Line supra It is true that the General Court sel concedes that three was little overt union activity in the maintenance department and that area could hardly be described as an organizational hot bed At the same time however there is no dispute that group B mainte nance employees beginning in later January suffered an unprecedented reduction in their weekend overtime op portunities Moreover as to that group a compelling in ference established that Respondent knew or suspected that Frey Yeagle Pfleegor Hockenberry and Seiger were prounion 25 The balance of that group-Karnes and Hamilton-signed union authorization cards and ex pressed to coworkers their prounion views Although there is no evidence that Respondents officials were 28 Hockenbery at the November shift meeting argued with coworker Jim Sullivan a group member in his attempt to discredit the Employers quality circle program This produced a disturbance which according to Respondent contributed to its decision to divide the group Moreover in January 1987 when Hockenberry missed a shift meeting and was in structed by Baker to attend another Hockenberry responded If you have to attend another one of those antiunion meetings I will end up voting for the Union Hockenberry s stance tended to suggest dissatis faction with the status quo even though he at no time signed an authon zation card Seiger at the January 1987 meeting rose to criticize Shim shock s action in showing the assembled employees an antiunion props ganda film advising Shimshock that as a former union president he un derstood both sides of the issue Moreover Seiger s son who is still em ployed at the plant actively solicited authorization cards during the cam paign As for Frey Tom Henneberry a former substitute foreman testi fled that Frey was identified at a management meeting as one who might vote for the Union mindful of such activities, with the exception of Hartley and Sullivan, both of whom later repudiated their au thorization cards, the status of Karnes and Hamilton con trasts with the fact that not a single member of group A supported the union Indeed of the nine in that group five openly displayed antiunion insignia The General Counsels initial burden is reenforced by the impact of this change According to the overtime schedules the new procedure was first implemented on Sunday January 31 only 2 days before the election No group B maintenance worker worked that Sunday In stead, the prior rotation was broken when four from group A were substituted in their place 26 The compara tive summary set forth below demonstrates the magni tude of the preference enjoyed by group A personnel over those in group B Weekend Overtime Shifts Worked February 1, 1987 through August 16, 198727 Group A Hartley 18 Metzger 21 Sponenberg 22 Rholand 17 Sullivan 23 Mensch 14 Rhodes 18 Runkle 17 Severn 16 166 Group B Frey (discharged 8/17) 1 Hamilton (discharged 6/6) 2 Hockenberry (quit 6/15) 5 Karnes (retired 5/2) 0 Seiger (disability 2/20) 0 Pfleegor (terminated 3/6) 0 Yeagle (terminated 3/6) 0 8 Thus prior to Frey s termination the last surviving group B employee 174 weekend shifts were assigned since abandonment of the rotation system Of these a mere eight were assigned to the prounion group Of the eight two were scheduled shortly after unfair labor practice charges were filed contesting Respondent s practice in this regard 28 Considering the element of 28 Of the four group A employees who received Sunday overtime on February 1 three (Sponenberg Rholand and Sullivan ) were identified by uncontradicted testimony as among those who brandished antiunion insig nia during the campaign 27 As of August 16 1987 not a single member of group B remained in the Respondents employ 28 See G C Exh l(e) Electrician Pfleegor last worked overtime Sat urday January 17 He received not a single weekend shift assignment be tween that date and his discharge on March 6 On the other hand his counterpart Metzger worked overtime every single weekend during that interval NATIONAL GYPSUM CO union animus, together with the timing of Respondent s preelection decision to terminate its longstanding prac tice of equalizing weekend overtime, these statistics are so overwhelming skewed agains the prounion employees to suggest that proscribed considerations were a contrib uting factor Indeed this inference is strong enough to compel Respondent to come forth with an explanation disproving that union sentiment played a role in the severe reduction in what prior to the union campaign had been a traditional source of enhanced earnings Respondent under proper application of Wright Line, supra, to the facts, has the same obligation to explain the terminations of Pfleegor and Yeagle Here again, the in voluntary terminations involved a seldom used personnel action With the exception of Hagerman, no bargaining unit employee had been terminated since 1983 on any ground The termination of these known or suspected union adherents occurred a little more than a month after the election, and in the face of Purchasing Agent Thomas augury that These people better wise up or their not going to be here, were re not going to put up with this every year ' The resulting overall inference suffices to shift to Respondent the onus of showing that the job eliminations would have occurred even in the ab sence of union activity See Wright Line, supra (c) Concluding analysis By way of defense, the Respondent portrayed the re vised distribution of overtime and the elimination of jobs in the maintenance department as legitimate economic action The parol testimony of Plant Manager Shimshock is vital to this assertion He alone appears to have made the major decisions affecting the maintenance department during the period in question Before transfer to the Milton plant in July 1985, Shim shock had been employed at various of Respondent's fa cilities in diverse capacities for some 17 years As Mil ton's plant manager he was charged with the responsi bility for increasing production improving quality, and maintaining lower costs The maintenance department in 1986 and apparently 1985 as well did not perform well against the budget That Shimshock was prodded by his superiors to stop cash flow overrides in that department is a documented fact 29 Thus in mid December 1986 Shimshock was di rected to prepare a plan to bring the maintenance oper ation within the budget for the remainder of the year When Shimshock s superior in 1986 was replaced by John Capeless, Respondents regional manufacturing manager performance of the maintenance operation con tinued to receive criticism 30 In fact that criticism con tinued into the spring of 1987 31 Shtmshock described his inability to resolve the problem in 1986 as attributable to repairs necessary to maintain increased production during that period 29 See R Exhs 2(a) through (d) 30 See R Exh 2(f) 31 See R Exh 2(h) As shall be seen this document dated May 26 1987 is entitled to less weight than data available to Shimshock when the cutbacks were affected 1149 In furtherance of the defense Shimshock testified, logically, that labor costs were more readily subject to management control than material costs According to Shimshock, in mid December 1986 when he received the 1987 maintenance budget he elected to reduce 1987 labor costs by reducing weekend overtime This was the initial step to bring 1987 maintenance expenditures into line with the budget Apparently, later in December 1986, maintenance employees were informed of the im pending overtime reductions 32 According to Shimshock, the maintenance budget was not again addressed until February 1987 when Shim shock felt concerned that reduction of overtime would not alone keep the operation within budget At that time he and Baker discussed the possible abolition of jobs but final action was shelved pending a maintenance shut down of the plant scheduled for February 15-20 33 Ac cording to Shimshock, after the shutdown he informed Baker that his labor budget would be cut by 20 percent, so as to recapture almost $100,000 annually 34 This would be realized through elimination of three mainte nance positions namely, the instrument technician one electrician, and one millwright 35 Shimshock avers that, due to accomplishments in rehabilitating the plant during the years 1985 and 1986 these positions had become dis pensable Shimshock's account was not entirely convincing While I am inclined to give him the benefit of the doubt and conclude that the cut in overtime was a valid ap proach to fiscal problems that predated the union cam paign in all other areas including the manner in which overtime was distributed, I did not believe him In highly material areas, his testimony was internally inconsistent at odds with probability and unsupported by documenta tion Unquestionably, the budget for the Milton plant was drafted at a higher level of authority than local manage ment Those responsible for the 1987 budget must have been aware of maintenances performance in 1985 and most of 1986 In 1985, labor costs represented only 12 1/2 percent of the overall deficit against budget In 1986, labor costs overages declined to 3 percent Because ma terial expenses were not subject to the same type of con trol as labor expenses it is difficult to understand why, against this background the allocation for materials was not significantly increased in 1987 Thus the 1987 budget did not account for the decline in labor costs contribu tion to the deficit nor did the framers of that document envision a need to reduce labor costs or to increase ex penses for materials Nonetheless, Shimshock suggests 32 There is no evidence that employees were told that the Respond ent s past recognition of panty in overtime distribution would be altered by this decision 33 A complete shutdown of production operations was necessary on a periodic basis to allow the maintenance force to perform repairs and major maintenance 34 The savings allegedly was designed to offset extradinary materal ex penses that were unbudgeted but that might be incurred during 1987 35 At the time a millwright Seiger was on indefinite leave due to an industrial inability Because his compensation was not charged to the maintenance budget no millwright was actually terminated at the time of this decision 1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that without reference to the union campaign, and only 2 months into the calendar year covered by that budget, he altered the course charted by the budget process and engaged in a major reshuffling of the plant expenditures for labor and materials during fiscal 1987 The proffered justification of the $100,000 reduction in 1987 labor expenditures is difficult to reconcile with a number of Shimshock s other actions First, in late July 1986 Shimshock developed a plan in response to prod ding by the then director of manufacturing S J Swider,36 which contemplated broad utilization of the maintenance work force He described those recommen dations as furnishing more justification to keep the staff together There is no evidence that Shimshock s plan was rejected, curtailed, or unimplemented Consistent therewith, Shimshock testified that in Feb ruary 1987 he could afford a 20 percent staff reduction because in 1985 and 1986 he had engaged in an ambi tious maintenance plan to upgrade the 18 year old facili ty However, this highly significant aspect of his testimo ny was neither internally consistent, nor in comport with documentation Thus, if this ambitious plan took place it apprently was without the blessing of Gold Bond s budget planners Thus, the 1986 labor budget was in creased by a mere 5 percent in 1986 That same year the amounts allocated for materials actually declined Even considering inflationary factors, these figures do not sug gest that extraordinary demands on the maintenance de partment were contemplated prior to 1987 As shall be seen the actual 1986 performance figures are also at odds with any major push that would have reduced 1987 demands on labor Indeed, Shimshock later contradicted himself by relat ing that the extraordinary" effort in fact had not been completed by the end of 1986 Thus the continuing de mands on the maintenance force, into 1987 in further ance of this project is evident from Shimshock testimo ny as follows Well, towards the end of 1986 we had what I felt still some significant repairs to make to maintain our increased production And I was trying to sort of weather the storm until the end of 86 in hopes of 1987 getting a bigger maintenance budget I felt if I could get through 86, 87 might be better and I could keep my ambitious maintenance plan intact Moreover, the difficulty of staying within the budget while completing projects in 1986 had been underscored by Shimshock in his memorandum to Swider dated Sep tember 8, 1986 37 Finally, that the major projects had not been completed prior to February 1987 is further confirmed by the fact that maintenance department ex penditures during the last quarter of 1986 and the first month of 1987 were within the budget The suspicion generated by the fact that major projects had to have been pushed back into 1987 was reenforced by Shimshock s explanation of the timing and immediate circumstances surrounding his decision to reduce staff He claims in February he learned from Jan uary figures that further reductions were necessary be cause overtime cutbacks would not alone satisfy budget constraints Thus, he described the overtime cutback as a washout in that surplus labor costs in January 1987 only amounted to $439 Therefore he claims to have opted for the 20 percent staff reduction Yet, for reasons that should have been obvious, the overtime cutback could have had little impact on savings in that month, and hence would have been neutral to any decision to reduce staff Thus, of the five Saturdays and four Sun days in January, a reduced complement was worked on only one of those days In this light and contrary to his testimony, it is difficult to imagine that Shimshock drew any conclusions from January overtime figures 38 Moreover, the departments performance against the budget in recent months also failed to support the need for a reduction in staff Thus Shimshock s decision in this respect was made against January figures which re flected that material expenditures for that month were more than $27 000 within the budget This performance mirrored the recent expense history, which showed that in the last 4 months of 1986, actual labor costs were within the budget with material costs being within the budget during the entire last quarter of that year Not only am I at a loss to understand how these figures war ranted the radical budgetary strategy Shimshock adopted in February 1987, but they underscore that all extraor dinary work had not been completed in 1986 Indeed, had that been the case the financial experience during the 4 months pnor to the cutback decision would offer no cause for alarm concerning the departments ability to continue within the budget during the entirety of fiscal 1987 On balance, when all objective factors are considered the supervening organization drive offers a more likely explanation for the decision to reduce staff than Shim shock s testimony Moreover as shall be seen, the infer ence of proscribed discrimination is hardly allayed by Shimshock s rationale for eliminating the instrument technician position Yeagle testified that, in that capacity he was responsible for servicing and maintaining all auto matic valves level controls steam panels boiler controls, and almost all automated equipment Yet Shimshock fo cused exclusively on Yeagle s responsibility for the Mea surex computer system In this respect his testimony is summarized as follows (1) the Measurex system was in stalled in 1977, (2) that system was effective for the level and capacity of output in 1977, but had become updated and ineffectual at present levels of production, and (3) the Measurex, though still in use, is no longer as capable of giving accurate measurements, which are now exacted manually Shimshock added that, as dependence on the Measurex declined so too did the need for the instru ment technician Shimshock claims that in February he checked with Gold Bond plants in Oklahoma and Ala bama each of which had a Measurex system learning that neither had an instrument technician but relied on Measurex personnel for service Because his justification 38 See R Exh 2(c) 31 See R Exh 2(c) 38 See G C Exh 3 NATIONAL GYPSUM CO 1151 goes on further, the defense is flawed by Shimshock s fractionalized explication which fails to reach other as pects of the job highlighted within his colloguy with the General Counsel, as follows MR KELLY [W]hen you had Mr Yeagle work ing there for eight hours a day, he worked on more than just the Measurex equipment, doesn t he? MR SHIMSHOCK He worked on Measurex and nematic [sic] instrumentation Q Yes, how many pieces of equipment do you have other than the Measurex that Mr Yeagle worked on? Could you name the pieces of equip ment for us? A No, I couldn t There are numerous nematic [sic] instrumentation throughout the plant Q Does the nematic [sic] instrumentation take up a considerable part of his time or is his time mostly spent on Measurex9 A He seemed to spend more on servicing the ne matic cleaning than the Measurex From the overall testimony of Shimshock, it is clear that despite the reduced effectiveness of the Measurex, it is still in use, and the troubleshooting and maintenance work previously by Yeagle, remains necessary Equally clear is the fact that the Measurex involved only a sector of Yeagle s responsebilety, 39 and, thus, the defense stands on testimony that merely reveals that an entire position became unnecessary because an unquantifiable portion of the job had lost its utility Under Wright Line, supra, once protected activity is shown to be a' motivating factor, the burden held by the employer is one of ' per suassion, or as described by the Board in Roure Ber trand Dupont Inc 271 NLRB 443 (1984) [A]n affirma tive defense in which the employer must demonstrate by a preponderance of the evidence that the same action would have taken place even in the absence of protected conduct " Here the defense, as a substantive entirety was dependent on the credibility of Shimshock, whose testimony is rejected both as to the reason for the cut back in staff and the dispensable nature of Yeagle s job Accordingly the Respondent has failed to prove that Yeagle would have been terminated had he not engaged 99 Yeagle testified without contradiction that he spent only 25 percent of his time working on the Measurer equipment prior to his termination Baker and Forrest Aeppli an hourly maintenance foreman apparently assert that this was unwarranted offering that after Yeagle s layoff the pnematic instrumentation work had been assumed by millwrights and completed in a total of 8 or 9 man hours per week First even if this was true neither they nor Shimshock related that this had been anticipated at any time prior to March 6 In any event Baker testified that his conclu sions were drawn form jobsheets that he reviewed a week prior to his testimony documents which were not produced in evidence In rejecting this testimony it is first noted that Respondent does not argue that the work involving the pneumatic instruments declined prior to or after the March 6 termination It is also clear that no millwrights have been hired since During the same timeframe the complement of millwrights had been reduced due to quit retirement disability or discharge by five rep resenting a 38 percent shrinkage The allegation that a previously un trained short staffed group could achieve such efficiency raises the ques tion why Yeagle had been retained so long while enjoying biweekly overtime until only a month before his termination I did not believe the testimony of Baker and Aeppli in activity protected by the Act Hence, the Respondent violated Section 8(a)(3) and (1) in this respect Respondents burden was the same in the case of Pfleegor As found in Yeagle s case, there was no credi ble proof that the decision to reduce staff itself was founded on legitimate economic considerations, and hence the Respondent has failed to supply a lawful pred icate for Pfleegor s termination and its concommitant election to operate without a backup electrician for the first time in at least 10 years 40 Having failed to meet its evidentiary burden pursuant to Wright Line, supra, it is concluded that Pfleegor was also terminated in violation of Section 8(a)(3) and (1) of the Act 41 The Respondents defense to the alleged discriminator ily distribution of overtime is no more persuasive There can be no quarrel with the fact that beginning on Sunday, January 31 those relegated to group B were se verley prejudiced in their weekend overtime opportune ties Previously this group had been segregated for pur poses of the monthly shift meetings Thus Shimshock in structed Baker to divide the men, indicating that he did not care how this was accomplished as long as Sullivan and Hockenberry and the two electricians, Pfleegor and MEtzger, were separated In contrast with the General Counsels insistence that the division was made on the basis of union preference, Baker claims to have done so on the basis of the original Saturday work schedule that had been in place for years 42 As matters turned out, Bakers explanation offers no answer to the General Counsels claim for the men were not separated in con formity with the historic overtime groups The discrep ancies are chartered below Group A-Historic Group A-Shift Meeting Overtime Jim Karnes Clair Yeagle Mel Metzger Bob Hartley Will Mensh Jack Severn Jim Sullivan Ammon Rholand Mel Metzger Bob Hartley Will Mensh Jack Severn Jim Sullivan Jim Rholand Harold Sponenberg Ron Runkle 40 On the issue of whether economic considerations warranted elimina tion of this position Shimshock testified that after receiving jobsheets it was concluded that the Milton Plant had two part time electricians who were being paid full shifts In short only one full time electrician was needed Here again Shimshock s testimony was not believed His basic unreliability was not salvaged by either documentation or objective evi dence The timesheets were not offered Moreover if within the last 10 years there had been a curtailment in demand for electrical maintenance the Respondent has not identified any change in operations or equipment that would have brought about such a decline 41 Had the Respondent met its burden in this respect it would be con eluded that Pfleegor rather than co-electrician Metzger was the logical selection as the first to go In this respect objective factors such as Metzger s superior length of service and the fact that in 1986 he was se lected for emergency call ins on substantially more occasions than Pflee gor would logically support a preference in his case 42 Baker testified that these separate groups were established prior to his hire in April 1979 1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Earl Rhodes Group B-Historic Group B-Shift Meeting Overtime Harold Sponenberg - Earl Rhodes Ron Runkle43 Hugh Hamilton Judd Seiger Ron Pfleegor Bill Hockenberry Ron Frey Hugh Hamilton Judd Seiger Ron Pfleegor Bill Hockenberry Ron Frey Jim Karnes Clair Yeagle It is not without significance that Runkle, Rhodes and Sponenberg, who wore antiunion stickers were assigned to group A Their relegation to this group was not only in conflict with the historic overtime groupings, but placed them among those who later would receive the lion's share of weekend overtime This unexplained con tradiction with Baker s testimony 4,4 is complimented by a stirring coincidence Thus, as previously indicated, fol lowing the change in overtime procedures, the group B maintenance workes were scheduled for only 8 of 174 possible shifts Baker attempted to explain this disparity on grounds that, after implementation of the new over time policy, maintenance workers were selected for weekend overtime on the basis of skill and ability in rela tion to the work that was scheduled to be performed on a particular weekend He then went on to explain that group B employees were passed over based on their indi vidual lack of productivity, careless attitude toward safety and poor skills It is somewhat remarkable that while group B itself was not established on the basis of such criteria application of these purely subjective stand ards produced the same demarcation with respect to post January 31 weekend work opportunities 45 Here again vital elements of the defense are frought with inconsistency and lack plausibility While conclud ing that the overall 1987 reduction in the quantum of overtime was economically oriented 46 I reject, as entire 43 The historic overtime groups have been compiled from R Exh 18 See also R Exh 17(c) and G C Exhs 4(a) and (b) 44 Another unexplained departure emerges from the fact that the de partment had been evenly split for overtime purposes but the 1987 dive Sion placed nine in group A and seven in group B 45 As matters turned out opportunities made available to group A per sonnel apparently did not reflect a broad diversity of ability within that group Thus of the groups 9 employees the most weekend shifts worked by any individual was 23 with 14 representing the lowest Those who brandished the antiunion stickers averaged 19 4 shifts and individual ly received more opportunities than all but Metzger the only available electrician after March 6 and Hartley the individual who had repudiated his union authorization card 46 This finding at least facially might be viewed as lacking consisten cy with my rejection of the economic defense underlying the 20-percent reduction in staff In this instance however I note that in giving the Re spondent benefit of the doubt I am persuaded that the general reduction in premium pay represented an easily reversible inherently sound more likely approach to budget management than the more drastic unprece dented and-most important-performance of the decision to eleimmate longstanding employees and forever to deny the department their expen ence skills and work capacities ly unbelievable the Respondents explanation for depart ing from the established overtime equalization policy At the threshold of this conclusion is the absurdity in Re spondent s position that employees were assigned to group B for purposes of shift meetings under one stand ard, but when it came to denying overtime to those same employees entirely distinct, subjective standards pre vailed to produce the identical result Moreover, Baker s testimony in significant areas was at odds with indisputa ble fact and so incredible as to reenforce the inference that the separation for purposes of group meetings was based on managements suspicion that the Union had es tablished a beachhead within that group In sum the record persuades that this was the criterion that con trolled preference for weekend work beginning on the Sunday immediately prior to the election Accordingly it is concluded that, commencing Sunday January 31, Respondent violated Section 8(a)(3) and (1) of the Act by reducing overtime opportunities of Frey, Hamilton Hockenberry, Karnes Seiger Pfleegor, and Yeagle on the basis of their known or suspected union sentiment c Disciplinary actions including reprimands suspensions and discharges (1) The General Counsels burden On June 10 1987, Respondent terminated millwright Hugh Hamilton Later, on August 17, Ron Frey, also a millwright, was discharged Hamilton had been em ployed for some 11 years prior to his termination, and Frey almost 10 Both signed union authorization cards and attended union meetings Frey was the sole surviv ing group B employee, and his termination apparently was the last in an unprecedented series of involuntary terminations at the Milton plant Thus, as heretofore in dicated, prior to the 1986 union campaign, not a single bargaining unit employee had been terminated involun tarily since 1983 Considering this pattern of discipline together with Respondent's propensity to discriminate against group B maintenance employees on pretexual grounds an inference of illegal motivation arises suffi cient to require Respondent to disassociate all contested disciplinary action against Hamilton and Frey from their known or suspected union acitivity See Wright Line supra (2) The defense Respondent contends that Frey and Hamilton were discharged under its corrective action policy That policy sanctions progressive discipline commencing with verbal warning to a written reprimand then a written notice of suspension and, finally, discharge 47 The Gen eral Counsel does not claim that the treatment of Frey and Hamilton departed from this disciplinary process In stead certain oral and written reprimands, the suspen sions and discharges are contested individually as having been issued in violation of Section 8(a)(3) and (1) of the Act As shall be seen below, Respondent has met its burden with respect to each and every disciplinary act, a 47 See R Exh 10 NATIONAL GYPSUM CO 1153 proffer not overridden by empirical evidence available to the General Counsel (3) The individual cases (a) Hugh Hamilton Hamilton, prior to the union campaign, did not com pile a remarkable record of work related citations Inso far as this record discloses, the only other set of warn ings issued against him were dated June 24, 1985 Thus in separate incidents, he received a verbal warning for careless work and a written warning for destroying company property His record was apparently clean during the first 1 1/2 years of Shimshock s tenure as plant manager 48 The first of Hamilton s contested warnings was issued on January 13 1987 Two offenses were involved, both were verbal and pertained to safety Pursuant to Re spondent s safety practice, employees are required to shut down or lock out operable equipment in the area in which they are engaged Foreman Aeppli, having issued the warnings, credibly testified that on January 13 Hamilton was working with Frey and Pfleegor The latter had lockouts, but Hamilton did not When con fronted, Hamilton excused the omission as unnecessary in view of the lockouts already in place by his coworkers, and because his work did not reach areas where he would be jeopardized Aeppli disagreed, having observed Hamilton neglect a lockout on equipment while assem bling a coupling Hamilton s testimony does not address Aepplt s assertion in this regard, and therefore no eviden teary basis exists for disturbing this ruling Aeppli again cited Hamilton orally for a safety viola tion on January 23 At the time Hamilton was operating a forklift truck Karnes was installing a steam line, while elevated by a cage attached to the lift on Hamilton s truck According to Aeppli he issued the reprimand when he found the lift truck unattended while Karnes was working on the cage Hamilton acknowledged that safety policy precluded the operator from leaving a lift truck under these circumstances adding that Aeppli had reminded him about this policy However, Hamilton dis counts the incident by denying that he ever left 49 Hamilton received his first written warning on March 10 It related to his performance on three distinct assign meats during a maintenance shutdown of the plant, some 3 weeks earlier 50 The first incident related to an assignment in which Hamilton was to patch holes in an exhauster According to Aeppli, who assigned the job, he specified the three holes to be filled and told Hamilton specifically to use gasket material and pieces of metal and to close the holes by riveting the metal to the exhauster Later, on review ing the job Aeppli found that only one hole had been ae See R Exhs 21 (a) and (b) as Although it is possible that Aepph might have peen mistaken in his observations that possibility is not considered likely and I believe that he raised the issue with Hamilton because Hamilton had in fact left his duty station again violating Respondents safety policy so See R Exh 21(c) Between February 16 and 21 the plant was shut down to facilitate maintenance operations that could not have been com pleted effectively had the plant been in production correctly patched a second had been plugged with quick cement and nothing had been done to the third Hamil ton offered a bevy of excuses for his performance on this job First, he described the exhauster as completely filled with holes ' explaining further that he patched all the holes he could find, but ran short of time because the mill was about to begin production He claims that when he showed Baker what he had accomplished, stating that it was the best he could do, Baker instructed him to fur nish the job because he had to start production 51 How ever, at another point, Hamilton testified that when Aeppli and Baker asked if he had completed the job he said, Yeah, I am doing the best I can' He then offers that he couldn t put patches on the rest of them, be cause if you look at the damn thing, you will find out that there s nothing left on it to patch it was rusted through Hamilton s excuses struck as shifting and in consistent Here, again I believed Aeppli and, based on his testimony, it is concluded that Hamilton had neither performed as directed, nor completed the job in a work manlike manner The second incident set forth in the March 10 warning was addressed to the manner in which Hamilton aligned a coupling to a vacuum pump After the shutdown, when the plant went back into production, the pump failed The breakdown was attributed to Hamilton s fail ure to properly complete the alignment Hamilton ex cused his performance on this job on grounds that the pump was adjacent to a tank that vibrated to the point of historically preventing proper alignment Nonetheless, Hamilton asserts that because of all the `pressure' on the maintenance employees, after completing the job, he asked a coworker to visually inspect his effort Hamilton admits that Baker that next day called him into his office, stating that the electrician had to realign the pump Hamilton s version does not dispute that his work had to be corrected, but he claims to have told Baker that the misalignment was due to vibration Hamilton admits that Baker did not accept this explanation 52 The third offense listed in the March 10 reprimand pertained to warning signs that Hamilton was told to erect on the docks and in other work areas Once more the citation was based on poor workmanship Aepplt tes tified that because of the materials selected by Hamilton and the manager in which he used them, the signs were fragile and some were quickly destroyed Hamilton admits the breakage and that he was called into the office the next day with Baker then accusing him of shoddy workmanship Hamilton s sole explanation was that when he completed the job and showed the results to Shipping and Receiving Superintendent Ron Croll the latter stated That s beautiful that s what I want Hamilton asserts that when called down for this job he pointed out that he simply did as Croll had instructed 51 On cross examination Hamilton first testified that he observed no more than three holes but later corrected himself indicating that there were more than three but time was running out 12 Hamilton s testimony was uncorroborated Here again it is conclud ed that he did not perform his work properly 1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To this, Aeppli responded ' Croll is no fucking mill wright s a On May 14, Hamilton reached level three of Respond ent's four step progressive system of discipline At that time he received a 3 day suspension founded on his fail ure to comply with instructions and allegedly deficient work performance 54 On this occasion, Hamilton was to replace a washup hose Aeppli insists that, on this job, he specifically instructed Hamilton to replace a section of black iron piping with more durable and noncorrosive, stainless steel piping When he later insepcted the job, he found that Hamilton had used black iron piping, and that he had hung the pipe with hose clamps of a type never used to secure pipe Aeppli also found that Hamilton had burned holes in structural steel, a step that is always to be avoided because of its tendency to weaken building support Hamilton did not deny Aeppli's criticism He explains, however, that he received the assignment at 3 40 p m and because only 20 minutes were left on his shift, and he was not told to work overtime, he simply performed a temporary job He asserts that when the in stallation was complete, he pulled on the line, and when it did not leak, he left, expecting to return the next day to complete the job 55 On June 6, Hamilton was to install expansion joints on a warehouse steamline 56 Because of his alleged deficien cies on this job, on June 7 Hamilton was suspended pending investigation and, thereafter, on June 10, dis charged Prior to this assignment some months earlier, an at tempt to correct leaks in the line was made through utili zation of a straight pipe This apparently was a stopgap measure designed to buy time until the Company could obtain expansion joints When they arrived, Hamilton, whose specialty was pipefitting, was given the task of re moving the pipe previously installed and replacing it with two new expansion joints Hamilton testified that after installing the expansion joints and tightening the line to the point where every thing looked okay" he sought out Baker in the break room about 2 30 a in He told Baker, I in ready to go Baker directed him to remove the locks pressurize the line, and, if there is no leak, to go home Hamilton claims 68 As neither Croll nor Aeppli contradict Hamilton in this instance I credit him This does not mean however that the evidence suggests that he was unfairly cited in this respect Even were that the case the March 10 warning since warranted by the two other incidents would appear to represent a legitimate exercise of disciplinary discretion 54 See G C Exh 5(b) ss Hamilton was not persuasive On the face of his testimony it is ap parent that he performed an assigned task shoddily I also credit Aeppli over Hamilton s denial that the latter was told to use stainless steel pipe Baker testified that jobsheets reflect that the job was assigned 2 hours before the end of the shift This highly material documentation was not produced in evidence Although Hamilton s testimony that he received the assignment only 20 minutes before the end of the shift was probably exaggerated my mistrust of Baker also precludes acceptance of his un corroborated testimony in this respect However my rejection of Baker s testimony does not influence my conclusion that Hamilton was guilty of a serious breach of his work responsibility in connection with this assign ment and was properly disciplined se The expansion joints are rubberized piping joined by steel pipe called a spool piece This piping unit as a whole allows steam lines to expand and contract as pressure vanes thus preventing lines from buck ling and possibly bursting due to pressure changes that he complied, and that it took approximately 10 min utes to remove the locks He then pressurized the line During this process he opened the hand valve, observed steam condensating which indicated that the line was in the process of pressurizing He then shut down the line and left the plant, claiming to have arrived home at 3 30 am The evidence clearly demonstrates that Hamilton ne gelected to secure the new unit In this respect, Baker testified credibly that after Hamilton left the plant, he went to the site, finding that the spool niece between the expansion joints had not been anchored John Reeder was assigned to work with Hamilton on that job as a helper In this respect, Reeder confirmed that Hamilton had cut the braces off, but failed to replace them hence allowing the new unit to hang free 57 Baker also credi bly testified that this caused the line to buckle and that without support from the spool piece, the line when pressurized was subject to blow at any point, creating a hazardous condition According to Baker, the expansion joints were bowed and runied and there were no replacement parts Later that night he assigned another millwright to reattach the braces, so that the system might be stabilized on a tem porary basis Problems grew worse when, on June 7 and 10 blowouts on the steamline required the mill to shut down As of the date of the hearing, the line remained in a state of disrepair and leaking Baker testified that in consequence of this infraction, and considered against the background of careless work, he recommended that Hamilton be discharged Follow ing Hamilton's suspension on June 8, Shimshock re viewed his performance record and accepted Baker s recommendation Baker testified without contradiction that during the discharge interview of June 10, Hamil ton, in shifting fashion attempted to explain his failure to secure the spool piece, first indicating that he forgot and then stating that he was unable to perform this task During the interview Hamilton did not deny that he ne glected to anchor the spool piece 58 It is true that a claim of discrimination can never be free from doubt in circumstances when, as here union animus and a proclivity to eliminate known or suspected union supporters is as sharply defined as on this record However, Baker insists that he was unaware that Hamil ton was a union supporter, claiming instead tht Hamilton told him directly that he opposed a union in the plant Shimshock also concluded that Hamilton as antiunion, also because of specific discussions that he had had with Hamilton in which the latter spoke of his dislike of unions Although I find the testimony of Shimshock and Baker unacceptable in this regard, on balance, the suspi 57 According to Hamilton when he started the job he found that one of the pipe supports had already been removed and a second was twisted out of shape Hamilton claims that he replaced the first but not the second which he simply twisted back to shape 68 The General Counsel raises a question as to how Respondent ex pected Hamilton to prevent a buckle when the same braces were unable to hold the spool piece in line after the earlier repair The short answer is that the earlier repair was made without use of expansion joints which were not then available but essential to the equalization of pressure along the line NATIONAL GYPSUM CO 1155 cions generated by Respondent 's union animus, without more, did not insulate Hamilton from an apparently evenhanded application of the employer's disciplinary process Here the Respondent's accepted proof demon strates a litany of offenses that, when objectively viewed, reflect a continuing, often inexplicable, breakdown on Hamilton's part concerning his job responsibilities The description by Shimshock, Aeppli, and Baker of Hamil ton's warnings, and the circumstances leading to his dis charge, even if not impeccably true,59 offered a believ able and substantial basis for concluding that Hamilton would have been terminated even if he had not engaged in any union activity Each warning and the ultimate dis charge reflected either violations of safety regulations, or a failure to perform assigned tasks in a careful, workman like manner Objectively viewed, each of the several in fractions were sufficiently severe to support invocation of the disciplinary process Hamilton s excuse laden, finger pointing, generally unbelievable response reflected a defensive posture that merely served to confirm his own sensitivity to his offenses In the face of this convincing showing of just cause, no credible, evidentiary basis exists for concluding that major infractions did not occur, that they were trivial, or that they had been condoned in the past 60 In short, the General Counsel has failed to present believable, persua sive evidence refuting Respondent's substantial proof that each of the warnings, as well as the suspension and dis charge, would have been forthcoming even in the ab sence of union activity Accordingly, the 8(a)(3) and (1) allegation based thereon shall be dismissed (b) Ronald Frey Frey was terminated on August 17 for reasons set forth on his employee termination report, as follows 69 The Respondent contends that Hamilton left the plant before the line could be tested under proper pressure and temperature The latter ground was disputed by Hamilton whose testimony was corroborated by John Reeder Thus Reeder testified that Hamilton completed the job at 3 a in after pressurizing the line and checking it He asserts that at that time the job was alright and leak free Later that morning however Reeder returned to clean up the work area only to find that the steam joint was bent at the expansion joints Reeder claims to have reported this to Baker at 3 45 a in Baker with corroboration from Shimshock in sists that he received Reeder s report at approximately 2 20 am when Reeder informed him that the steam line was as crooked as a dog s hind leg Baker testified that Reeder reported the condition only 25 minutes to one half hour after he instructed Hamilton to pressurize and check the line Baker then sought out Hamilton but found that he had already gone home I credit Hamilton and Reeder the latter being an incumbent em ployee of longstanding with no apparent reason to fabricate However any possible confusion about the timing of the discovery is outweighed by Hamilton s clear act of carelessness which created an immediate not readily correctable hazard Thus although I believed Reeder s corrobora tion of Hamilton that the check was made this aspect of the defense is considered incidental and I am convinced that the alleged failure to check was not a vital element in Respondents election to terminate Ham ilton 60 The General Counsel argues that an inference of discrimination should be drawn from the fact that Hamilton s problems seemingly began only after the organization campaign However on this record it is just as easy to conclude that the numerous citations issued Hamilton during this period were attributable to a sharp decline in the quality of this mci dent where against a background of warnings and a suspension Hamil ton made an unthinkable mistake Continued poor work performance and lack of pro ductivity despite previous warnings and suspen sions R Frey failed to demonstate any effort to im prove 81 Prior to the discharge, Frey, on several occasions, even before commencement of union organization, had been cited for an inefficient approach to his work Thus, on September 23, 1986, Baker observed Frey on five oc casions wandering off his assigned job and talking to others under conditions that slowed down his production and that of coworkers According to Baker, he reminded Frey that he had talked to him about this problem in the past, and that others had indicated that they did not like to work with Frey for this reason 62 On November 14, 1986, Baker issued Frey a written warning, stating as follows You are being given a warning for a lack of pro ductivity, wasting company time and disrupting a departments efficiency Your inattentiveness is causing unnecessary work on fellow employees and increases their exposure to possible injury Any fur ther violations will result in more severe discipli nary action up to and including termination 63 Baker testified that this warning was issued after Frey took 4 hours to paint a workbench, a task which should have been completed in 1 hour 84 The first disciplinary action against Frey, which is sub ject to interdict of the present complaint relates to a written warning issued to him on February 6, 1987 At the time Frey was engaged on a repair job on an over head crane Plant safety policy required that an employ ee working under such conditions take precautionary steps so that he not be endangered should another em ployee attempt to use the equipment Compliance re quires either that the equipment be locked out or that an other employee be stationed at the controls to monitor its use On the occasion in question, Frey had been paint ing the rails on the overhead crane Aeppli testified that he observed Frey working on the job while Hartley an other employee, was operating the crane Frey admits that the crane was not locked out on the occasion in question According to Frey, he and Hockenberry, the day before, had finished the painting, but an air hose had been left hanging from the scaffolding That morning, when Frey learned that they had been assigned to a dif ferent job he climbed the scaffolding to remove the air hose As he did so the crane was in motion According to Frey, he did not adhere to the safety policy because he felt he removed the hose at a point too distant from the crane to present a safety concern 65 81 See R Exh 20(f) 62 This warning was memorialized by Baker in writing See R Exh 20(a) Frey was not shown this document He did however admit to re ceiving a warning at that time 63 See R Exh 20(b) 64 Frey was not examined as to this warning 65 See G C Exh 6(a) Contrary to the General Counsel this warning impressed me as a legitimate attempt to enforce an aspect of safety policy whose scope is not limited by the employee s self discrimination whether noncompliance would create a peril 1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The complaint does not challenge a written warning issued by Baker to Frey on March 10 1987 A coworker Karnes also received a warning for the same offense The discipline related to the failure of Karnes and Frey to tighten a section of a pump casing, and their leaving the job with the knowledge that the pump was leaking Frey described this warning as being a set up, but was not otherwise examined and hence did not specifically deny the allegation contained therein The complaint also does not contest an oral warning addressed by Baker to both Hamilton and Frey on May 27, 1987 The warning pertained to their taking 4 1/2 hours to perform a job that should have taken only 2 hours, while both were earning overtime pay 66 The complaint alleges that Frey was suspended twice in June on discriminatory grounds The first based on a job assignment on June 2 which according to the warn ing and 3 day suspension issued on June 8 pertained to Frey s failure to perform an assigned job within a reason able length of time 67 In support thereof Baker testified that Frey took 5 to 6 hours on a 2 hour job Baker added that when he asked Frey why it took so long Frey indi cated that he had a lot of problems, but Frey did not identify their specific nature Aeppli agreed that this as signment required but 2 hours, or at most 3 Frey con firmed that he took extra time on this job 68 Instead, he attempted to explain the delay as caused by the inability to complete the job in 1 day, hence requiring that it be set up twice Frey also explained they ran into problems in conjunction with the foils on the equipment involved and also worked slower because of extreme heat The second citation was issued on June 24 It was based on assertions that Frey on June 22 and 23 again failed to complete an assigned task within a reasonable length of time The warning again recites You have not responded to previous warnings about your lack of pro ductivity and continue to need more direction and super vision that an A mechanic should require 69 In conse quence Frey was given a 7 day suspension Baker testa feed that Frey took three times longer to perform this job than would normally be expected of an experienced mill wright With confirmation from Aeppli Baker related that the job involved would take 1 1/2 hours compared to the 7 hours Frey took Frey s only explanation was that he was delayed by broken bolts Frey does not dis pute that his completion of the job was delayed but here again attempted to excuse the delay on the basis of prob lems he encountered Finally on August 17 Frey was discharged on grounds documented by Respondent as follows Between 7/27/87 and 8/4/87 R. Frey spent nine teen (19) hours assembling and installing a 2 black 66 See R Exh 20(d) Neither Frey nor Hamilton was examined about this warning and hence the allegation contained therein stands uncontra dicted 87 See G C Exh 6(b) 88 Hamilton worked with Frey on this job It will be recalled that the warning was issued to Frey on June 8 the day after Hamilton received his indefinite suspension Frey testified that when Baker suspended him Baker mentioned that Hamilton would have received the same discipline were he not off already because of the steamline incident 69 See G C Exh 6(c) and R Exh 20(e) iron line-6 long with three 90 [degree] elbows one tee and two flanges for a discharge line On 8/14/87 R Frey was assigned to install ends on a cylinder After spending 3 1/2 hours and advising his Supervisor the job was finished he hoisted the cylinder into a storage box It was then discovered the job was only a third done chime rings were in stalled but the end covers were not The cylinder had to be removed from its storage box and the job completed by another mechanic 70 According to Frey on August 17 he was taken off a job and called to Shimshock s office where he was told by the latter I ve been on vacation for 2 weeks I ve had people watching you You haven t improved any in your productivity, your workmanship and stuff As of today you are terminated Counsel for the General Counsel did not examine Frey concerning the July 27 or August 4 incidents On cross examination, he was questioned about time spent on the discharge line He testified that generally this job would take 10 to 12 hours Frey admitted to exceeding the normal time for the job but once more blames the special problems he encountered He described the main delay as possibly caused by his having to set up a second time after being called off to work another project At this juncture Frey appeared to be indulging in specula tion, and I did not regard his testimony as an expression of what actually occurred As for his August 14 failure to install the end covers on the cylinder before boxing it, Frey did not refute Aeppli s testimony that Frey had been instructed to install the ends before boxing the cyl inders and that Frey had done that very job in the past Indeed Aeppli credibly testified that experienced mill wright would never box cylinders without installing the end covers and would question any instruction from a supervisor to the contrary Based on the foregoing it is concluded that the Re spondent, through entirely plausible mutally corrobora tive testimony of Baker and Aeppli, as confirmed by documentation has established Frey s history of ineffi ciency safety infraction and shoddy production dating back to a period preceding the advent of union organiza tion For the most part, Frey did not dispute the factual basis for the accusations against him, but attempted to mitigate his delinquencies through unpersuasive excuses On this record there is no discernible basis for conclud Ing that Respondents action entailed a departure from the fairness embodied in its progressive system of disci pline and in fact its failure to terminate Frey at the first opportunity, suggests an intention to rehabilitate rather than eliminate In concluding that the Respondent has satisfied its burden under Wright Line supra, I have nei ther overlooked Frey s status as the last surviving member of group B nor the suspicion that emerges from Respondents proclivities toward that group Neverthe less any inference of discrimination emanating therefrom 70 See R Exh 20(f) NATIONAL GYPSUM CO is effectively countered by Respondents convincing proof that Frey, who was unobstrusive in his union lean ings, would have been the subject of each and every dis ciplinary act even if there had been no organization cam paign Moreover the defense has not been offset by the General Counsel on the basis of credible proof that the incidents did not occur, or that Frey was a victim of dis parate application of Respondents work rules and prac tices Accordingly the 8(a)(3) and ( 1) allegations pertain ing to the warning of February 6 the suspensions of June 8 and 24, as well as Frey s discharge on August 17, 1987, shall be dismissed CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) of the Act by coercively interrogating employees concerning union ac tivity, by creating the impression that union activity was subject to surveillance, by threatening that employees would be locked out and replaced because of their union activity, by threatening that on designation of the Union, employees would lose their benefits, and by, under coer cive conditions, soliciting employees to repudiate their designations of the Union 4 Respondent violated Section 8(a)(3) and (1) of the Act by permanently laying off employees Ronald Pflee gor and Clair Yeagel because of their known or suspect ed union activity 5 Respondent violated Section 8(a)(3) and (1) of the Act by disparately distributing weekend overtime on the basis of union considerations under conditions denying work opportunities to Ronald Pfleegor, Ron Frey Jim Karnes, Judd Seiger Bill Hockenberry, Hugh Hamilton, and Clair Yeagle 6 The unfair labor practices found above are unfair labor practices having an affect on commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY 1157 Having found that the Respondent has engaged in cer tarn unfair labor practices within the meaning of the Act, it shall be recommended that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act Having concluded that the permanent layoffs of Ronald Pfleegor and Clair Yeagle were discriminatorily motivated, it shall be recommended that they be offered immediate reinstatement to their former positions and made whole for any loss of earnings and benefits they sustained by reason of the discrimination from the date of termination to the date of a bona fide offer of rein statement Having further found that Respondent unlaw fully denied overtime to employees Ronald Pfleegor, Ron Frey, Jim Karnes, Judd Seiger, Bill Hockenberry, Hugh Hamilton, and Clair Yeagle, it shall be recom mended that they be made whole for earnings lost by reason of the discrimination against them 71 All backpay awarded in this preceding shall be computed on a quar terly basis as prescribed in F W Woolworth Co 90 NLRB 289 (1950), with interest computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987) The complaint includes a request for a visitatorial clause, authorizing the Board to obtain discovery, if nec essary, to monitor compliance with any remedial order issued However there has been no argument about how the specific conduct under scrutiny in this proceeding warrants such relief Accordingly, based on Cherokee Marine Terminal, 287 NLRB 1080 (1988), the request is denied [Recommended Order omitted from publication ] 71 In the case of Pfleegor and Yeagle the entitlement to backpay for lost overtime opportunities shall continue until a bona fide offer of rein statement and if accepted beyond that until they are allowed to share in overtime under nondiscriminatory conditions Beyond them with the ex ception of Seiger this reimbursement obligation terminates with the date of their retirement discharge or quit Seiger whose employment status has not been conclusively litigated or resolved in this proceeding appar ently incurred a job related disability shortly after January 31 and hence his entitlement is also a continuing one subject to verification through compliance or any other appropriate proceeding