Goodman Forest Industries, Ltd.

GOODMAN FOREST INDUSTRIES 49 Goodman Forest Industries, Ltd. and International Woodworkers of America—U.S.—AFL-CIO. Case 30-CA-10475 July 13, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On January 31, 1990, Administrative Law Judge Michael 0 Miller issued the attached decision The Respondent filed exceptions and a brief and the General Counsel filed a brief in answer to the Re- spondent'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, fmdmgs,2 and conclusions 3 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Goodman Forest Industries, Ltd, Goodman, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Order The Respondent has requested oral argument This request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Ow 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent excepts, inter aim, to the judge's recommended remedy which provides in relevant part that the Respondent offer em- ployee Bambeau reinstatement The Respondent contends that Bambeau is unfit for further employment with the Respondent In adopting the judge's recommended remedy, we note particularly his conclusion, which the record supports, that the General Counsel made a pnma facie show- ing of discnmmation under the Board's holding in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), and rebutted the Respondent's defense that Bambeau's conduct warranted discharge under the Respondent's rules by showing that Bambeau was treated disparately from another employee accused of similar misconduct See generally Kingsport Press, 269 NLRB 1150 (1984) Thus, while we do not condone Barnbeau's conduct, we cannot find that the Respondent regarded the conduct as a basis for finding an employee unfit for continued employ- ment George Stria, Esq , for the General Counsel Guy Robert Detlefsen Jr, Esq , of Wisconsin Rapids, Wis- consin, for the Respondent Merle A Burnell, National Representative, of Wausau, Wisconsin, for the Charging Party DECISION STATEMENT OF THE CASE MICHAEL 0 MILLER, Administrative Law Judge This case was heard in Iron Mountain, Michigan, on October 31 and November 1, 1989, based on an unfair labor prac- tice charge filed on May 16, 1989, by the International Woodworkers of America—U S —AFL-CIO (the Union or Charging Party) and a complaint issued by the Re- gional Director of Region 30 of the National Labor Re- lations Board (the Board) on June 28, 1989 The com- plaint alleges that Goodman Forest Industries, Ltd (Re- spondent or the Employer) engaged in surveillance of employee union activities and discharged its employee, Alan Barribeau, because of his union activity, in viola- tion of Section 8(a)(1) and (3) of the National Labor Re- lations Act (the Act) Respondent's timely filed answer denies the commission of any unfair labor practices On the entire record,' including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I THE EMPLOYER'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS PRELIMINARY CONCLUSIONS OF LAW Goodman Forest Industries, Ltd, a corporation, is en- gaged at Goodman, Wisconsin, in the manufacture, non- retail sale, and distribution of veneer and related prod- ucts In the course of its business operations during the year ending December 31, 1988, it sold and shipped from its Goodman, Wisconsin facility products, goods, and materials valued in excess of $50,000 directly to points located outside the State of Wisconsin The Respondent admits and I find and conclude that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The complaint alleges, Respondent admits, and I find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Background Goodman, where the Employer's plant and offices are located, is a small (population approximately 1900) northern Wisconsin mill town The Employer's general manager is Charles Crago (Crago), his son, Jeff Crago (Jeff), is the veneer mill superintendent Charles Crago reports directly to Richard Connor, Respondent's presi- dent and major stockholder Respondent has about 275 employees, 75 to 80 of whom were working on the second shift in the veneer mill during the relevant time period ' The record includes as received two exhibits, R Exhs 17 and 18, which were rejected The record is corrected to show that they are not part of the record before me 299 NLRB No 10 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's employees are not currently represented by a labor organization. However, about 8 years ago, before the present owners acquired this plant from Lou- isiana-Pacific, the employees had been represented by the Charging Party. Alan "Joe" Barribeau, the alleged discriminatee, had been a plant employee when it was owned by Louisiana- Pacific and worked for Respondent from December 1983 until his discharge on April 28, 1989. 2 He worked, second shift, as a log hoister on the veneer lathe and as a bunch clipper operator. B. Union Activity, Employer Knowledge, and Evidence of Animus When the plant's employees were represented by the Union, Barribeau was a member of the negotiating com- mittee. Since Respondent's acquisition of the plant, he has remained in contact with, and has served unofficially as the contact man for, the Union. In about November 1988, Barribeau suggested to Merle Burnell, the Union's national representative, that the time was ripe for a renewed organizing campaign. Burnell and other representatives began handbilling and holding meetings with the employees in early 1989; through April, handbills were openly distributed outside the plant on six to eight occasions. Barribeau did not par- ticipate in the distributions but discreetly passed out some authorization cards, attended meetings, and met with the union representatives frequently at his home, which is less than two blocks from the plant. The pres- ence of the union representatives in town was easily no- ticed; Burnell drove a car with a Wisconsin license plate, IWA2, and another representative, Bill Gooder, drove a oar which was recognizable because of its Oregon tags. Respondent's management knew of Barribeau's union activity and support. Jeff Crago pointed out that Good- man is a small town where secrets are hard to keep; he had heard "plenty of hearsay" about Barribeau's union activity although he never personally observed it. Charles Crago testified that when the time came to dis- charge Barribeau (discussed infra), he "was aware of [his] union activity and involvement . . . all through his employment [and I] was very deliberate and careful that I handled it properly." Similarly, management did not dispute General Coun- sel's contention that it did not want to see its employees organized. When Barribeau was hired, Charles Crago told him that the Employer is a nonunion company and asked whether he had any objections to working in such an environment. Once the Union began its campaign, Charles Crago issued two memoranda to its employees, dated February 21 and March 8, urging and encouraging employees not to sign authorization cards (while simulta- neously assuring them, as he has done on other occa- sions, that they had the right to support a union if they wished). 3 On an occasion in April when Barribeau was 2 All dates hereinafter are 1989 unless otherwise specified. 3 General Counsel makes no contention that these memos violated the Act. handing out letters relating to a local tax dispute to fellow employees in Respondent's parking lot, Charles Crago asked him what he was doing. When Barribeau showed .him a copy of the letter, Crago explained his in- terest, stating, "Oh, I was just checking to see if it had anything to do with the Union." Notwithstanding its admitted opposition to unioniza- tion and its longstanding knowledge of his union procliv- ities, Respondent denies that it had any animus toward Barribeau. Thus, it is claimed, and essentially admitted by Banibeau, that at some time during his employment he could have been discharged for excessive absenteeism but was not. He received warnings for excessive absen- teeism in October and November 1986 and again in April 1987. Respondent's absenteeism control plan allegedly re- quires that absences in excess of 10 must be excused (ac- cording to testimony by Foreman Joe Rademacher). As recently as early March, Respondent asserts, it took steps, notwithstanding his known union activity, to ensure that Barribeau did not run afoul of this program and bring about his own termination. Thus, it was claimed, when Barribeau was facing an extended absence for surgery, to begin in about mid-March, he was alleg- edly called by Charles Crago and advised to request a leave of absence. Crago's memo to Barribeau's personnel file, dated March 3, purports to corroborate the call. It states that Crago warned Barribeau that he was subject to discharge under the Employer's absentee control plan and the "new Wisconsin Family and Medical Leave Act" if not covered by an authorized and approved leave of absence. Barribeau's file also contains an un- signed application for a leave of absence, dated March 3, 1989, with his name printed at the top (in a style distinct- ly different from the printed name and address on his au- thorization card), signed by Joe Rademacher as his fore- man and approved by both Cragos. However, the leave request was not signed by Barn- beau and he denied that Charles Crago had suggested that he request it. The only such call he recalled was one which occurred in February of what he believed to be 1986. General Counsel noted that Barribeau submitted a doctor's disability certificate to the Employer, dated March 14, 1989, indicating that he would be totally inca- pacitated for an indefinite period following that date. He has further pointed out that (aside from Rademacher's cryptic description) the absenteeism control plan was not presented in evidence, that Barribeau had no absences in 1989 through March 13 and there was no evidence that his past record placed him at risk under whatever plan existed, and that the Wisconsin Family and Medical Leave Act, Wis. Stats. 103.10, does not preclude an em- ployer from granting more generous leave benefits or mandate termination. Thus, General Counsel argues, there was no reason for Crago to call Barribeau. While Barribeau's recollections concerning this matter are not entirely consistent with the record (he had re- ceived neither a warning for absenteeism nor a leave of absence in February 1986 or February 1987—he had re- ceived warnings in October and November 1986 and April 1987 and a leave of absence in November 1986) I GOODMAN FOREST INDUSTRIES 51 am constrained to credit his testimony over that of the Cragos and Rademacher The testimony of the latter wit- nesses was both self-serving and inconsistent Thus, in addition to the points noted by General Counsel, I note that Charles Crago was in error when he claimed that Barnbeau had come in and filled out a request for a leave of absence, Barnbeau never filled out that request I note, too, that Rademacher erroneously claimed that he had filled it out on Barnbeau's behalf at Crago's direc- tion, after Barnbeau had submitted a doctor's disability request, the leave of absence request is dated 10 days before the doctor's request and Crago did not claim to have directed Rademacher to make it out Finally, I note that Jeff Crago's testimony is inconsistent with that of both Rademacher and his father C Alleged Surveillance In the late afternoon of Apnl 26, Bambeau met with Union Representatives Burnell and Gooder at his home at the corner of Fourth and A, only two blocks from the plant Gooder's car, with its readily recognizable Oregon tag, was parked in front of the house During the meet- ing, either Bambeau or his wife noticed Charles Crago drive slowly by on Avenue A, toward the stop sign at the intersection, and then turn left onto Fourth Street, past the front of his house, to the next street, Maple, and turn north Charles Crago admitted driving by Barnbeau's home while Gooder's car was parked there, although he re- called this as having occurred on April 27 The intersec- tion where Bambeau's house is located is not on the route from the plant to Crago's home in Florence, Wis- consin, and Crago did not explain his presence Other witnesses, however, testified that there are plant facilities on Fourth Street, close to the Bambeau home, and else- where around Goodman They asserted that Crago fre- quently drives around town, either m route to those other facilities or merely to get out of the plant for a period of time Even Barnbeau acknowledged that he has seen Crago drive around Goodman, and past his house, on numerous occasions General Counsel asserts that, in the absence of evi- dence of a business or other legitimate purpose for Crago's having driven by the Barnbeau home while the meeting was in progress, it must be mferred that he did so in order to surveill Barnbeau's union activity in viola- tion of Section 8(a)(1), citing Turnbull Cone Baking Go, 271 NLRB 1320, 1354 (1984) Respondent, citing Key Food Stores, 286 NLRB (1987), asserts that the "mere ob- servation of open, public, union activity by an employer on or near its property does not constitute unlawful sur- veillance" Neither citation is squarely on point In Turnbull Cone, a supervisor who repeatedly drove past a union meeting, and offered an unpersuasive explanation for having done so, was found to have unlawfully surveilled that meeting Here, there was no repetition of the conduct, merely the supervisor's presence, driving at a speed which was not inconsistent with the existence of a stop sign at the inter- section and no explanation other than that supervisor's habit and practice was offered Similarly distinguishable is Key Food Stores Bambeau's union activity was not open and public, as the activity had been in Key Food Stores, it was conducted in his home, a locus which carries with it an expectation of pri- vacy even though near the plant The only feature of the meeting which was open was the presence of Gooder's easily identified car on the street in front of the house While the matter is not free from doubt, I am con- stramed to conclude that the circumstances do not war- rant a finding of unlawful surveillance Barnbeau was an open and known union supporter, there were no other employees present, Crago did nothing to attract attention to himself such as might tend to interfere with employee activities, he did not refer to his observation in any sub- sequent conversation with Barnbeau or other employees, and his fleeting presence was not inconsistent with his normal activities or routine Accordingly, while I find that this incident establishes Respondent's knowledge of Barnbeau's continuing union activity, I do not find that it had a tendency to coerce or interfere with employee union activity such that it rose to the level of unlawful surveillance I shall recommend that this allegation be dismissed D Barnbeau's Misconduct and Discharge On Friday, Apnl 28, Charles Crago sent, and Barn- beau received, the following letter Dear Mr Bambeau This is to inform you that your employment by Goodman Forest Industries is hereby terminated, ef- fective immediately We have discovered that you have indecently ex- posed yourself, on one or more occasions, to the women and other employees in the plant This be- havior violates the companies [sic] work rules and policies, of which you have been previously in- formed The above has been confirmed by our investiga- tion and written documentation Barnbeau, who was still on the leave of absence which had begun March 14, immediately walked over to Crago's office where he met with Crago and Ward Leach, whose functions include personnel Barnbeau asked what was meant by the letter and was told that there were complaints of Bambeau "moonmg" (i e, dropping one's pants so as to reveal one's buttocks) Bar- nbeau admitted one incident of mooning, that being all that he claims to have recalled at that time He asked who had complained and asked further that Crago re- consider the discharge Crago refused both requests and stated that the Employer's counsel had told him he could not reconsider the discharge In the course of their meeting, Barnbeau falsely claimed that he had not yet signed an authorization card and asked whether the presence of the union representa- tives at his home a day or two earlier had anything to do with his discharge Crago denied that it had Bambeau also asked about other people who had similarly mooned Crago asked who and Barnbeau identified Rodney Kuczala, the lathe operator on his shift He was 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD told that if he produced two complaints on Kuczala for Crago, Kuczala would also be fired. According to Leach, Barribeau was told that there was evidence that he had exposed himself both in the plant and on the parking lot and Barribeau admitted only the occurrence on the parking lot. Neither Crago nor Leach recalled Barribeau mentioning his union activity other than inferentially by stating that he knew he was in trouble when he saw Crago drive by his house. Both Crago (in his May 3 memorandum) and Leach recalled Barribeau stating that other employees had mooned but both denied that he identified Rodney Kuc- zala as having done so. Donald Tomaszewski, the office manager who sits just outside Crago's office door, heard Barribeau say that someone else had also engaged in mooning and heard Crago ask who it was. Tomaszewslci claimed not to have heard, or to be unable to recall, any reply by Barribeau. The only possibly significant distinction between Crago's and Barribeau's versions of the April 28 conver- sation is whether or not Barribeau mentioned Rodney Kuczala as another employee who had engaged in moon- ing. I believe that he did. 4 In reaching this conclusion, I note, in addition to the demeanor of the witnesses, To- maszewslci's corroboration of Barribeau's assertions that he told Crago that another employee had also mooned and that Crago asked who that was. Given Crago's pur- ported concern for indecent exposure, it is not plausible to believe that he would not have asked who else did it. Similarly, given that his job was on the line, it is not plausible to believe that Barribeau would not have told him. If Crago did not ask, I would note, his concern for such misconduct is belied.6 Barribeau did not deny having engaged in several mooning incidents in 1988. He did not recall, but would not deny, having done so in 1987. The, testimony of Bar- ribeau's fellow employees indicates that his mooning was observed by Shelly Knutson on two occasions in late 1987, and again by Pamela Bullinger and Knutson in No- vember or December 1988, all in the plant at the lathe or clipper. His mooning was' also observed by Kaleen Ritchie and Tom Hirte, in the parking lot after the con- clusion of the second shift, sometime around November 1987. This latter incident was brought to the attention of James Majewski, a first-line supervisor, who warned Bar- ribeau that such conduct could give Crago a reason to fire him; Majewski did not report it to any higher au- thority. The mooning first came to the attention of Respond- ent's management on April 17 when Jeff Crago investi- * An employee who, like Barribeau, falsely denies that he signed a union authorization card in order to avoid an impending discriminatorily motivated discharge is not telling the truth, but such dissembling, when not under oath, does not, in my opinion, necessarily reflect adversely upon his overall credibility. 5 Whether Barribeau referred to the alleged surveillance directly or only by inference is immaterial. Similarly immaterial is whether Bard- beau, who had already been discharged, falsely denied the additional mooning incidents or honestly only recalled one at that time. Even the question of whether Rodney Kuczala's name was mentioned is of less sig- nificance than the parties accord it, given that Crago's May 3 memo admits that he learned of Kuczala's alleged mooning by the morning of the next workday, Monday, May I. gated a report of mooning by another employee. In speaking with Shelly Knutson, he was told that, while the suspected individual had only been tucking in his shirt, others had mooned and gotten away with it. When asked, she identified Barribeau as having mooned her more than once and named several other employees who had witnessed him doing so. According to Jeff, she also told him that one of the female employees was thinking of pressing charges. Knutson, whose testimony I credit, disputed this and subsequent efforts to put such words into her mouth; she denied making the latter statement or ever mentioning going to "the proper. authorities." Rather, she told Jeff Crago that something should be done because they "didn't want to see the harassment . . . going on any further." After discussing the matter with his father, Jeff Crago questioned several other employees. Tom Hirte, he said, told him that he had seen Barribeau moon Kalene Ritch- ie in the parking lot in late fall (of 1988, according to Jeff's recollection). James Majewsld and Ritchie and Pamela Bullinger similarly confirmed Barribeau's moon- ing activities in the plant and in the parking lot. Jeff reported this information to his father about April 25 and, at his father's direction, based upon advice of counsel, took statements from these employees on April 26.6 Bullinger's statement reported observations of Barn- beau's mooning on two occasions in November (without specifying which year), both in the plant. Knutson's statement relates an observation, on the job, about No- vember 22, and a conversation with Barribeau's wife wherein she had commented, "Oh, is he doing this again?" Majewski's statement reports a mooning incident, in the plant, in late August 1988 (which Majewski has testified was in error; it was 1987). Hirte and Ritchie gave statements describing Barribeau's mooning of Ritchie in the parking lot during the fall; both relate it as having happened about 1:15 a.m., but Ritchie remem- bered it as 1987 and Hirte said 1988. Neither Jeff nor Charles Crago questioned Barribeau about the allegations of mooning. Charles Crago testified that, given the evidence against him, there was no reason to talk to Barribeau. Aware of Barribeau's union activity, Charles Crago called both company counsel and its principal stockhold- er to confirm what he stated was his April 25 decision to discharge Barribeau. Connor supported his decision. The discharge letter, allegedly drafted on April 25, was given to his secretary on April 27 and, as noted, was received by Barribeau on April 28. There is no question but that the mooning violated several company work rules prohibiting indecent con- duct, horseplay, abusive actions, and sexual gestures and harassment. Barribeau was aware of the rules and ac- knowledged that his conduct would be grounds for dis- charge under them. 6 Charles Crago's April 28 memo, R. Exh. 9, contains the following statement: "On Wednesday, April 26, I personally contacted each person and obtained a written and signed statement that they had witnessed Alan Barribeau indecently exposing himself." The memo, in this regard, ap- pears to be inconsistent with the testimony of both Cragos. GOODMAN FOREST INDUSTRIES 53 On May 5, after hearing from several employees that the Union was going to hire an attorney to defend him, Crago sent Barnbeau another letter, putting forth addi- tional grounds for the discharge and purporting to re- spond to a question of possible rehire In that letter, Crago stated that there were reports of Barnbeau "per- sonally and selectively harassing fellow workers [as] reported by several fellow workers" He asserted that Barnbeau had a questionable and excessive absenteeism record and alleged that Barnbeau had lied about the fre- quency and location of the mooning incidents In light of that, he wrote, Respondent would not consider rehiring hun, even though some people had been rehired in the past None of these matters had been included in the dis- charge letter or mentioned to Barnbeau on April 28 As previously noted, Barnbeau had received several warnings for absenteeism in 1986 and 1987, the record does not indicate what absenteeism, if any, he had in 1988 and he had none, prior to his medical leave of ab- sence, in 1989 He had received a written warning in June 1987 for failing to complete an accident report and was orally reprimanded for yelling at Pamela Bullmger in 1988 Charles Crago denied that he was motivated by Barn- beau's umon activity in deciding to discharge him The mooning was serious enough misconduct to warrant dis- charge, he felt, and he was allegedly concerned that fail- ure to take action could result m the filing of charges before the Wisconsin Equal Rights Division Similarly, Jeff Crago testified that he considered mooning to be a very serious violation of several work rules and mtolet- able sexual harassment E Alleged Disparate Treatment 1 Rodney Kuczala As noted, when Barnbeau spoke with Charles Crago on Friday, April 28, he told Crago that Rodney had also mooned his fellow employees While Crago demes this, his May 3 memo admits that he learned of accusations against Rodney Kuczala at least as early as Monday morning, May 1, from another employee According to that memo, Crago then told the members of the manage- ment advisory committee that if they knew of anyone engaging in such conduct, they should get two signed statements verifying it and he would fire the individual involved Again according to the May 3 memo, Charles Crago learned from Jeff, on Tuesday, May 2, that employees were teasing Rodney Kuczala about mooning and the possibility of his being discharged That memo relates that Rodney even spoke to Jeff about it, offering to quit but denying the mooning, and Jeff dropped the matter Finally, according to the memo, Charles Crago heard al- legations of Kuczala's mooning from various employees while he made his "rounds" of the plant on the afternoon of Wednesday, May 3 This caused him to call his attor- ney for guidance, he was advised that he was obligated to investigate and, that afternoon, directed Jeff Crago to question the second shift employees 7 Jeff Crago questioned, and took statements from, only the employees who had given statements regarding Bar- nbeau Mite, Ritchie, and Majewski told him that they had not seen Rodney Kuczala moon anyone Knutson, in a May 4 statement, related that she had "seen Rodney Kuczala indecently expose himself on the green end (i e, the veneer mill) last year" Pamela Bullinger gave a statement that she had seen "Alan Barnbeau and Rodney Kuczala drop their pants and expose their backside up in the lathe area "Bullmger, Rodney's cousin, testi- fied that the incident happened so fast that she could not be sure Rodney did it and asserted that she had told Jeff Crago, right from the start, that she could not be 100 percent sure However, she affirmed that she had be- lieved her statement to be true and correct when she gave it Allegedly, Jeff also questioned Rodney shortly after his name surfaced and Rodney denied mooning anyone Rodney, however, denies being questioned until called into Crago's office on May 8 On May 5, Charles Crago wrote Rodney, requesting that he come into the office before work on his next shift 8 On May 8, Rodney gave Crago a statement deny- ing that he had mooned anyone on company property on the second shift and offering to take a "he detector" test to verify that claim According to Charles Crago's May 3 memb (which relates events subsequent to that date), Crago determined that, "inasmuch as I could not abso- lutely prove that Rodney Kuczala did expose himself and there seemed to be some question of credibility re- garding the statements, I dropped the matter and no dis- ciplinary action was taken" On May 9, Crago wrote Rodney Kuczala, detailing the evidence Of the five people who witnessed Barn- beau's displays, he said, three did not see Kuczala and "two (2) people indicated that they thought they had" He noted, as well, Rodney's denial and concluded that "since the alleged incidence [sic] occurred at the same time, there is support for your denial" Rodney was told that he would not be formally disciplined at that time but was warned that "such conduct is contrary to the rules and policies of Goodman Forest Industries, and would result in immediate dismissal" On June 28, Crago wrote Rodney the following letter Dear Rodney, As I previously informed you, the Company in- tended to investigate further the matter of your al- 7 In their testimony, both Charles and Jeff Crago described their acqui- sition of information about Rodney Kuczala somewhat differently Charles testified that "it wasn't until several weeks later that Rodney's name kept popping up amongst other employees" and he directed Jeff to investigate, pursuant to his attorney's instructions Jeff recalled that Rod- ney's name came up in the course of his own investigation of rumors that others had mooned Other than Bambeau's testimony, and notwithstand- ing that I deem Crago's memoranda to be generally self-serving, I find the admissions contained in Charles Crago's May 3 memo to be the most reliable evidence of when and how Rodney Kuczala's name came Into the picture Unlike the formal letter addressed to Barnbeau, this letter was Infor- mal in tone, addressed, "Dear Rodney," and concluded with pleasantnes about Rodney's wife 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leged indecent exposure Based on this further in- vestigation, the Company has determined that it is appropriate to issue you a written warning for such alleged incident This letter constitutes such a warn- ing, and any violation of Company work rules in the future shall result in immediate discharge Except for this warning, your record is spotless Evidence indicates that your exposure, if any, was a single isolated incident and one of the three (3) em- ployees who was in a position to observe any such exposure states that none was observed If you submit a polygraph showing that you did not expose yourself to your fellow employees, this writ- ten warning shall be withdrawn Contrary to the first sentence of this letter, the record contains no evidence of a commitment or intention to continue to investigate Kuczala's conduct after the May 9 letter issued Indeed, that letter indicates that the inves- tigation had been completed Similarly, Crago's May 3 memo states that he considered the Kuczala matter closed Moreover, the record contains no evidence of any additional investigation or new evidence after May 9 The only intervening event was the Regional Direc- tor's decision to issue complaint 9 The June 28 letter and warning issued, I am convinced, so as to make the treat- ment of Rodney Kuczala appear less distinguishable from that accorded Barnbeau As stated in the June 28 letter, Charles Crago contends that the differences in Bambeau's and Kuczala's work records, in addition to the evidence of their mooning, warranted different treatment Kuczala had a clean record and few absences, Barnbeau had a history of ab- senteeism and warnings, primarily in 1986 and 1987 2 William Kuczala Approximately 2-1/2 years ago, a day shift foreman, William Kuczala (Rodney's father), came into the plant during Shelly Knutson's shift and, while under the influ- ence of alcohol, made heavy, persistent, and unwelcome sexual advances upon her Her foreman, Roger Coffe, observed that she was upset and witnessed some of the harassment The matter was reported to Charles Crago who called Knutson into his office When she described what had occurred, Crago asked what she had done to provoke William Kuczala He then told her that she would be fired if her name ever came up again in his office or with respect to this kind of matter Crago acknowledged that Knutson had told him of William Kuczala's advances, however, he did not make an issue of the sexual harassment when he spoke again with William Kuczala He claimed that "It wasn't a big issue to me It wasn't brought up as a big issue to me I did not want to know all the details of what happened" William Kuczala was warned about coming into the plant with alcohol and a notice was subsequently posted 9 I take administrative notice of the procedures in the Regional Offices, providing for settlement discussions after a decision has been made to issue complaint and before that complaint actually Issues See NLRB Casehandling Manual, § 10124 2 directing employees not to return to the plant after the conclusion of their shifts 10 3 Analysis In Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662 F 2d 899 (1st Cir 1981), approved by the Supreme Court in NLRB v Transportation Management Corp, 462 U S 393 (1983), the Board set forth the following test of causation to be applied in all discrimination cases turning on employer motivation First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision Once this is es- tablished, the burden will shift to the employer to demonstrate that the action would have taken place even in the absence of the protected conduct In the instant case, the General Counsel has estab- lished Bambeau's union activity concurrent with the al- leged discrimination, Respondent's knowledge of that ac- tivity and the existence of some union animus Noted with respect to ammus is Respondent's stated opposition to the organization of its employees when Bambeau was hired See Kessel Food Markets, 287 NLRB 426 (1988), and cases cited therein, see also Rood Industries, 278 NLRB 160 (1986) This animus was reiterated in two let- ters to all employees during the current organizational campaign Lynn's Trucking Co, 282 NLRB 1094, 1099 (1987) Noted, too, is Crago's comment when Barnbeau distributed a flyer on an unrelated topic outside the plant, 1 e, "I was Just checking to see if it had anything to do with the Union" That statement is in the nature of surveillance or the creation of the impression of surveil- lance See South Shore Hospital, 229 NLRB 363 (1977) Moreover, General Counsel has shown that Respond- ent put forth shifting or pretextual reasons for the dis- charge, evidencing discriminatory motivation Master- craft Casket Co, 289 NLRB 1414, (1988), enfd 881 F 2d 542 (8th Cir 1989), Swift & Co, 250 NLRB 1223, 1225 (1980) When the discharge letter issued, and when Bar- nbeau came in to Crago's office to discuss that dis- charge, only one reason for the discharge and for Re- spondent's refusal to consider rehiring Bambeau was ad- vanced, his mooning of fellow employees However, when it became apparent that the Union was going to challenge the discharge, and when it became necessary to distinguish the course of action followed with respect to Barnbeau from that accorded Rodney Kuczala, addi- tional and essentially insubstantial reasons were added Respondent seized upon stale disciplinary actions and statements made after the discharge to justify the previ- 10 Shelly Knutson has refrained from reporting subsequent incidents of harassment by William Kuczala because of her fear that she would be discharged if she did so She was a sincere and thoroughly credible wit- ness whose testimony I accept over that of both Charles and Jeff Crago Crago's explanation of their meeting, particularly his claim that he threat- ened Knutson with discharge because Coffe told him "that there was a discussion with Shelly" lacks both logic and plausibility even if, as he claimed, she had been reprimanded on prior occasions for her inability to get along with others GOODMAN FOREST INDUSTRIES 55 ously determined discharge and refusal to rehire Addi- tional stale allegations were raised at hearing In like vein, I note Respondent's repeated attempts to make its position stronger than it was, to bolster the record with seemingly official documentation Thus, I note that there was no reason for the May 5 letter setting forth additional reasons for his termination and Respond- ent's refusal to rehire him Bambeau's request to be re- hired had been conclusively rejected on April 28 Con- trary to the language of the letter, there was no further investigation of his conduct after April 28 and the possi- bility of his being rehired was not a pending question as of May 5 Thus, that letter can only be seen as having been stimulated by the receipt of information that the discharge would be challenged and by the need to distin- guish that discharge from Rodney's retention Similarly, when informed that a complaint would issue, Respondent again attempted to supplement the record by belatedly issuing a wntten warning to Rodney Kuzcala As in the case of the May 5 letter to Barnbeau, there was no reason to issue a new letter to Kuczala Contrary to the first sentence in the June 28 letter, there had been no promise to continue the investigation after May 9 and, in fact, there had been no additional investi- gation or new evidence brought to light between May 9 and June 28 Indeed, if Crago's May 3 memo is to be be- lieved, the investigation into Rodney Kuczala's conduct was concluded with a determination that no discipline was warranted, and the matter "was dropped" as of the date that memoranda was completed I note, also, that Crago's memoranda appear to be more than routine memos to file The manner in which they are written, with the inclusion of the titles of persons mentioned therein e, "Jeff Crago (Veneer Mill superintendent)" and "Guy Detlafson [sic], our attorney," indicates that Crago intended that they be read by whomever might be investigating Barnbeau's termination It is improbable that, if a memoranda was prepared simply to record events for the future refreshing of recollection, it would include reminders that the author's son was the Veneer Mill superintendent The creation of such memoranda, like the issuance of the May 5 and June 28 letters further suggests pretext and discriminatory motivation and di- minishes Crago's credibility Finally, I note that Respondent discharged Barnbeau without ever questioning him about the mooning inci- dents Crago's lack of interest in hearing what Barribeau might have had to say, is additional evidence of unlawful motivation York Products, supra, Brookshire Grocery Go, 282 NLRB 1273 (1987) In this regard, as it is Crago's motivation as shown by how he investigated the allega- tions that is at issue here, it is immaterial that Barnbeau was guilty of mooning or might have admitted it had he been questioned From all of the foregoing, I must conclude that General Counsel has shown a fairly strong prima facie case of discrimination Pursuant to the Wright Line analysis, once the General Counsel has satis- fied its initial burden of proof, the burden shifts to the Respondent to demonstrate that it would have taken the same action even in the absence of the protected conduct An employer cannot carry its burden of persuasion by merely showing that It had a. legitimate reason for the action, but must show by a preponderance of the evidence that the action would have been taken even absent the protected conduct Delta Gas, 282 NLRB 1315, 1317 (1987), York Products, supra Here, Respondent has shown that, over a period of at least 2 years, Bambeau repeatedly engaged in aberrant and obnoxious conduct That conduct was clearly in contravention of several different plant rules and, based upon those rules, would have warranted discipline, in- cluding discharge However, by showing that Barnbeau was treated dis- parately from another accused of similar misconduct, General Counsel has effectively rebutted Respondent's defense See Treffinger Repair Services, 281 NLRB 516 (1986), and Esco Elevators, 267 NLRB 728 (1983) Thus, the evidence establishes that, following a single report of Bambeau's mooning, Respondent launched a full scale investigation, questioning other employees and taking their statements When it acquired several statements supporting the allegation, and without ever questioning Barnbeau, it issued a curt and formal notice of termina- tion In contrast, Respondent did not begin to investigate the allegations concerning Rodney Kuczala until it had heard those allegations from at least three sources Even then, it did so reluctantly No investigation was com- menced until counsel had been consulted and advice re- ceived that Respondent "had an obligation to investigate this situation to find out if, in fact, the story was true" When Barnbeau was reported to have mooned, Jeff Crago questioned employees and took statements When Barnbeau related that Rodney had engaged in similar mooning conduct, the burden of proving the misconduct was shifted to the employees Barnbeau was old that if he produced two statements implicating Rodney, Crago would discharge Rodney Similarly, the management ad- visory committee was told "that if they knew of anyone else that had done this [they should get] 2 written state- ments and [Crago] would discharge the person in- volved" Notwithstanding its statements to Bambeau and the advisory committee, Respondent did not discharge Rodney Kuczala when it received two unambiguous statements supporting the accusations against him Rather, he was sent an informal and even chatty letter, entirely different in tone and purpose from the letter sent Barnbeau, asking that he come m Unlike Barnbeau, his side of the story was sought, and accepted over the con- trary statements, before any action was taken Moreover, when Crago summarized the evidence it had received for and against Rodney in the May 9 letter, he mischaracter- ized and minimized the statements of Knutson and Bul- linger They did not say that they "thought" they saw Rodney moon, their statements state unequivocally that he did Thus, even assuming that Rodney Kuczala was inno- cent of the mooning allegation, it is clear that he was 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD treated differently, and much more favorably, from Bar- nbeau Similarly, other evidence negates Respondent's de- fense Respondent categorized Barnbeau's mooning as sexual harassment, and the Cragos purported to be dis- turbed by both the existence of such harassment and by the possibility of facing legal action to end it This would be admirable were it not for Respondent's earlier tolera- tion of conduct by William Kuczala which, much more clearly, involved improper sexual harassment ' 1 In that case, Charles Crago stated that he was not particularly concerned and, almost classically, blamed the female victim for provoking the male harasser Based upon all of the foregoing, I find that General Counsel's prima facie case establishing unlawful motiva- tion stands unrebutted Accordingly, while not condon- ing Barnbeau's behavior, I must conclude that Respond- ent discharged Alan Barnbeau because of his union ac- tivity in violation of Section 8(a)(3) of the Act REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act The Respondent having discnmmatonly discharged Alan Barnbeau, an employee, it must offer him reinstate- ment and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F W Wool- worth Go, 90 NLRB 289 (1950), plus interest as comput- ed in New Horizons for the Retarded, 283 NLRB 1173 (1987) CONCLUSIONS OF LAW 1 By discharging Alan Barnbeau because of his union activity, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(3) and (1) and Section 2(6) and (7) of the Act 2 Respondent has not engaged in any other unfair labor practice alleged in the complaint not specifically found herein On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, I hereby issue the fol- lowing recommended12 ORDER The Respondent, Goodman Forest Industries, Ltd, Goodman, Wisconsin, its officers, agents, successors, and assigns, shall " Whether, in the context of the earthy atmosphere prevailing on Re- spondent's second shift, mooning can be considered sexual harassment rather than merely obnoxious and obscene behavior, is an open question There is no question but that William Kuczala's insistent approach to Knutson constituted sexual harassment whether or not he perceived her as "coming on" to him on other occasions 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 1 Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting the International Wood- workers of America—U S —AFL-CIO or any other union (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Alan Barnbeau immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharge and notify Alan Barnbeau in writing that this has been done and that the discharge will not be used against him in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its plant in Goodman, Wisconsm, copies of the attached notice marked "Appendix " 13 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found 13 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" GOODMAN FOREST INDUSTRIES 57 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT discharge or otherwise discriminate against any of you for supporting the International Woodworkers of America—U S —AFL-CIO or any other union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Alan Barnbeau immediate and full re- mstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his semonty or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest WE WILL notify Alan Barnbeau that we have removed from our files any reference to his discharge and that the discharge will not be used against hmi in any way GOODMAN FOREST INDUSTRIES, LTD