Sweetheart Cup of Texas

SWEETHEART CUP OF TEXAS 343 Sweetheart Cup of Texas and Dallas General Driv- ers, Warehousemen & Helpers, Local 745. Cases 16-CA-8547, 16-CA-8662, and 16-CA- 8714 August 19, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENEI I.O, AND TRUESDAI.E On February 27, 1980, Administrative Law Judge Marion C. Ladwig issued the attached Deci- sion in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to the rulings, findings,' and con- clusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Sweetheart Cup of Texas, Dallas, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' Ihe Respondeint ha excepltcd I certain credibility finding mlade bh the Adnminisratlse l.aw Judge It is the Board's eslablished polic5 not to o'errule an administrative law judge's resolulitons , ilh respect to credi- hilily unless hc clear preponderance of all of the relevant eidenle con- vinces us that the resolutions are incorrect Standard Dry 14all Pnducot. Inc., 91 NLRBH 544 (1'150), enfd 188 F 2d 362 (3d Cir 1951 We have carefully examined the record and find n,, hasis fr reversing his filnding DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: These consolidated cases were heard at Dallas, Texas, on November 8-9, 1979.' The charges were filed on June 15 (amended July 26), August 22, and September 17; and a complaint and consolidated complaints were issued on July 27 and October 5 and 15. The primary issues are whether the Company, the Respondent, during the Union's organizing drive, (a) unlawfully interrogated em- ployees; threatened them with discharge, loss of benefits, and plant closure if the Union came in; and stated that it would never sign a union contract; and (b) gave one union supporter a written final warning and discharged I All dates are in 1979 251 NLRB No. 57 another union supporter because of their union support and activities, in violation of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT I. JURISt)ICTION The Company, a Texas corporation, is engaged in the manufacture of such single-use products as paper cups and straws at its plant in Dallas, Texas. where it annually ships goods valued in excess of $50,000 directly to cus- tomers located outside the State. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. AI.ELGEI) UNFAIR ABOR PRACTICES A. Coercion I. Interrogation About the first week in June. after she had attended her first union meeting, production mechanic Billie Young had a conversation with Cup Production Man- ager Sandy Feldman shortly after she returned from her morning break. (Feldman, who reported to the plant manager, was over about 200 persons, including 2 super- visors and 13 shift leaders.) As Young credibly testified, Feldman approached her on the job, greeted her, and said, "Now, I heard something about you .. I under- stand that you attended a union meeting." When Young answered, "Yes, I did," Feldman asked her "Why?" She answered that she thought it was to her best interest, and he then asked, "Haven't I always treated you right?" She answered that he had and he commented, "Well, okay, if I don't ever treat you right, or there's something you don't like, you let me know." (This was before Young wore any union badges.) Feldman had had previous ex- perience with an organizing effort on two occasions at the Company's home plant in Owings Mills, Maryland. He and other supervisors were given written "Dos and Don'ts" and oral instructions in weekly meetings during this organizing regarding how to oppose the Union. Al- though he denied recalling any conversation with Young on the subject of union meetings, he testified that his technique was "to speak one-on-one." He testified that he "almost never put anything in a question form"; and that he never asked "Where do you stand on the Union" or "Have you been to the Union meetings?" (From their demeanor on the stand, Young impressed me most favor- ably as an honest, forthright witness with a good memory, whereas Feldman appeared to be less than en- tirely candid.) Despite the fact that, as Young testified, Feldman raised the matter in the form of a statement, "I understand that you attended a Union meeting," it is clear that the comment was intended to be a question SWEETHEART CL'I' OF TEXAS 343 344 DECISIONS OF NATIONAL ABOR RELATIONS BOARD (which Young did answer). I find that this statement- question and the direct question (about why she had at- tended the union meeting)-particularly in the context of a further question, "Haven't I always treated you right?" and the instruction, "you let me know" if he did not ever treat her right or "there's something you don't like"; and in view of the treatment she subsequently received fol- lowing a dispute with an antiunion employee, discussed later-were coercive and tended to interfere with em- ployee Section 7 rights. The questions were asked by a management official for an apparent reason of inquiring into her union support and activity. I therefore find that the questions were unlawful interrogation, in violation of Section 8(a)(l) of the Act. About 4 a.m. on August 17, Supervisor Jack Lillard spoke to clamp truck operator David Stegman in the printed paper warehouse, after Stegman had attended a company meeting at which the Company showed an NBC film on the Teamsters Union. Stegman's first ver- sion of the conversation, on direct examination, was that Lillard asked "what I thought about the film" and, when Stegman said he had already seen it on television, Lillard "asked me what my opinions about the Union were," and he told Lillard about his relatives in different unions. However on cross-examination, Stegman omitted the question about his opinions about the Union. He testified instead that after Lillard asked how he liked the film clip and he answered that he had already seen it before, "then I told him that I had relatives in different unions." When called as a defense witness, Lillard confirmed that Stegman had volunteered the information about his rela- tives. Under these circumstances, I find that the single question about the NBC film was not coercive, and find that this allegation of unlawful interrogation must be dis- missed. 2. Threats About April 19, near the beginning of the union orga- nizing drive, Warehouse Operations Manager Dan Crothers, in the presence of his assistant, Gary Borde, approached forklift operator Santiago Leal, told him that somebody had complained about him talking about the Union during working hours, and stated "we needed to put some rules down": talking only before work and at breaks or lunch, but not during working hours. After Crothers refused to produce the complaining employee and said that Leal did not need a witness, Crothers start- ed walking off and, according to Leal, turned around and said, "It's between me and you, and I'm going to dog you out." (Emphasis supplied.) About 40 minutes later, about 3 p.m. as Leal was punching out to go home, Crothers walked up and said, "No hard feelings between us, I hope" and Leal responded, "Well, I ain't got none." (Neither Crothers nor Borde now work for the Compa- ny.) Borde testified as a defense witness that, when Crothers told L.eal, "If you're going to play the game, play it by the rules," Leal asked, "Dan, are you threaten- ing me?" According to Borde, Crothers answered no, "If I wanted to, I could dog your butt day-in and day-out, and get rid of you, but I'm not that kind or a supervi- sor." Thus there is a direct conflict between the testimo- ny of Leal and Borde. After considering all of their testi- mony, I consider it unlikely that, if Crothers had made a threat to discharge Leal ("I'm going to dog you out"), there would not have been the friendly conversation 40 minutes later (Crothers telling Leal, "No hard feelings," and Leal responding, "I ain't got none"). I therefore credit Borde's version and find that no threat was made and that the allegation must be dismissed. Shuttle driver Craig Reitz and lift operator Glen Ro- senberry gave conflicting versions of a purported threat by Cup Production Manager Feldman about May 30. Reitz testified that, when they were sitting at the table in the breakroom at the morning break, he asked Feldman what he thought about the Union, and Feldman respond- ed that, "if the Union got in there, we would start from nothing . . . they've take our benefits, and what we'd made, we'd start from zero, scratch." (On cross-examina- tion, he testified that Feldman responded that the Union "wouldn't do us no good," that they "could" take "all our benefits and everything away-start from nothing." He denied that Feldman said, if bargaining came around, it was a "horse-trade" situation.) Rosenberry testified that, at the lunchbreak, "Sandy Feldman said we'd lose the rights, all our rights, and privileges, and everything would start out new." (On cross-examination, he testified that, Feldman said that, if the Teamsters got in, "every- thing would start anew, we'd lose all rights, privileges, money, everything, and we'd start from scratch." Both he and Reitz agreed that Treater Packaging Manager Steve Sappington was present.) Neither Feldman nor Sappington remembered this conversation, but they both remembered Feldman telling employees that negotiations were a matter of horse trading. In view of the apparently poor recollections of both Reitz and Rosenberry about what was said, I find that the General Counsel has failed to prove that Feldman threatened the loss of benefits, rights, privileges, or money if the Union came in. Employee Connie Elliott recalled that, at one of the series of meetings in which the Company showed the NBC film and answered employee questions, Plant Man- ager Joseph Rothenhoefer threatened plant closure if the Union got in. On direct examination she testified that she did not remember how it was brought up but that Roth- enhoefer said, "if the Union had came in, that, more than likely, they would shut the plant down." On cross-exami- nation she testified that Rothenhoefer said, "If the Union was to get in, that they would shut down the plant. He also said they had a whole warehouse full of cups, or something, and they could hold out for months and months. I'm not sure he exactly said it." I credit the de- nials and find that Rothenhoefer did not threaten plant closure. 3. Futile bargaining The General Counsel alleges that Plant Manager Roth- enhoefer also told employees on or about August 16 that the Company "would not sign a contract," thereby giving the impression that bargaining with the Union would be "futile." The supporting testimony, by employ- ees Nina Dooley and Connie Elliott, is in conflict. As re- called by Dooley, she asked Rothenhoefer (at the above- mentioned meeting attended by Elliott), "how long SW'EETH1EART CP OF TEXAS 345 would it be before they sign the contract" after the Union. got in, and he answered, "We will not sign a con- tract with the Union." Elliott recalled that he answered that the negotiations "could go on for years and years, before they could sign a contract. Then, Joe also stated that they would not sign a contract. "On cross-examina- tion, she recalled that Rothenhoefer said the negotiations could go on for years and years and they "did not have to sign" a contract-again adding that "he also said they would not sign a contract." (She stated in her pretrial af- fidavit, "Somehow, the word 'contract' came up, and Joe stated that they did not have to sign a contract, plus they could refuse to sign this contract.") I consider the memory of these two witnesses too faulty to support the General Counsel's allegation, and find that this allegation must be dismissed as well. B. Discrimination I. Young given written final warning a. Exemplary employee Following Cup Production Manager Feldman's unlaw- ful interrogation of her early in the union organizing campaign (as discussed above), production mechanic Billie Young became an active union organizer. She was on the employee organizing committee; she wore a T- shirt reading, "Go Teamsters"; she wore a badge read- ing, "Ask me, I'm a Union Organizer"; she used different small stickers, one reading "A Lady's Place Is With the Teamsters"; and she passed out about 50 union authoriza- tion cards. She was the only production mechanic who wore a union badge. Meanwhile, both before and after her August 6 inci- dent with an antiunion employee, feeder Shelley Miesner, she was regarded as an exemplary employee. In her 9 years of employment, she had never been given a reprimand. She had been promoted to the job of light production mechanic worker, and was responsible for the efficient operation of 12 cup-forming machines. It is undisputed that, before the August 6 incident, Cup Pro- duction Manager Feldman told her, "You're doing a good job. You know, if I had all employees like you, I wouldn't have no worries. You're doing a very good job" And about a month after Plant Manager Rothen- hoefer gave her a final warning concerning the incident, she was given a 6-month performance appraisal in which she was awarded the highest rating of "Outstanding" on three of the six job performance factors, and the next highest rating of "Above Standard" on the other three. Her department manager, Rickey Talton, wrote on the appraisal, "Billie is doing very good job as a prod. me- chanic and very dependable," and "Thank you Billie," along with a recommendation for a 25-cent wage in- crease. On September 10 (3 days before the election, which the Company won), Rothenhoefer wrote on the appraisal, "Thanks for the continual good job" and raised the recommended 25-cent raise to 30 cents. (Roth- enhoefer denied that he was "trying to buy Mrs. Young's vote in the election.) b. The .4ugust 6 incident The incident on August 6 involved feeder Shelley Miesner, who was actively opposing the Union during the organizing campaign. She wore "Vote No" and "Vote for the Company" badges and stickers, and wore a T-shirt reading, "Let's Do it Together." After weighing and analyzing the mass of testimony and other evidence concerning what happened on August 6, 1 find that the incident arose during that morn- ing when production mechanic Billie Young was consci- entiously endeavoring to keep cup-forming machine No. 19 in operation and the antiunion feeder, Shelley Miesner, engaged in intentional harassment of Young: Miesner deliberately refusing to pull down the backing- up cups in the chute (which carries the cups from the cup-forming machine to the treater), causing machine No. 19 to jam. As Young credibly testified, she was working with an operator on another cup-forming machine when she no- ticed that the cups were backing up in the chute from machine No. 19. (When this happens, it is the duty of the feeder on the treater platform to remove the accumulat- ing cups-as many as 300 at a time-and place them temporarily in a box until they can be returned to the chute.) Young rushed to the intercom and announced, for feeder Miesner to hear, "No. 19 is jamming up." Miesner did not immediately respond, and Young repeat- ed the number, "One-nine," and started going toward machine No. 19. Before Young reached that machine, Miesner began removing some cups which were also stacking up in the nearby chute No. 20. Young pressed the stop button on machine No. 19, waited until Miesner finished clearing the cups from chute No. 20, and then started the machine again, expecting Miesner to begin pulling down the cups from chute No. 19. When Miesner failed to do so, Young shut down machine No. 19 a second time and stood back with her hands on her hips, looking at Miesner and waiting for her to clear the chute. At that point, feeder Patsy Bunch, from the next treater, walked over to Miesner, touched her somewhere about the shoulder and, pointing to Young, laughed. Shelley "just slightly turned her head" toward Young and stood there, grinning, still not pulling down the cups jamming chute No. 19. Young continued standing, look- ing at Miesner, and waiting. Then, after checking and finding that machine No. 19 would not start, Young went toward the treater platform (about 18 inches above the floor) and said to Miesner, "Yes, I'm looking at you. Pull my line down. Don't jam my line up." Miesner still refused to pull down the jammed cups and Young re- peated, in a louder voice, "Pull my line down." Finally Miesner answered, "You don't tell me how to run my job. This is my job. You go out there and do your job. If you think you can do my job better than I can, then you get your ass up here." Young stated, "It is my job for my machine not to jam up," but Miesner still did not clear the chute. As Young "got a little more furious," the department manager, Leader Talton, came over and asked what was wrong. Young complained about Miesner standing there, jamming the line, and not pulling the cups, and insisted on seeing Manager Sandy Feld- S W E E T H E A R T C U P O F T E X A S 345~~~~~~~~~~~~~~~~~~~ 346 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD man. After Talton left to get Feldman, operator Kather- ine Nelson (from the next row of cup-forming machines) came up, put her arm around Young, who was in tears, and tried to console her. Young asked Nelson to go also for the manager, and, after Nelson left, walked up to the treater platform and again insisted, "Pull my lines down." Young then moved one of the trash barrels where Miesner was standing and told her, "If you got something personal with me, the reason you won't pull my line down, then you come down here and get it with me. Don't jam my machines up," At that point, Bunch left (to get Treater Packaging Manager Steve Sappington and Leader Kenny Beard). It was not until Sappington and Beard were entering the door-after a delay of about 5 minutes-that Miesner began pulling down the jammed cups from chute No. 19. When Manager Feldman arrived, Young asked to go to the office with Miesner and Bunch, telling Feldman, "make sure you bring them, so we can get this clear." Feldman responded, "Okay. Go on to the office." Young then went to the office, with Bunch and Supervisors Sappington, Beard, Talton, and Feldman, but Feldman failed to invite Miesner. (Feldman talked to Miesner sep- arately.) In the office, Young recounted what had happened, and stated that she felt that the jamming of her machine No. 19 was intentional. However, in the absence of feeder Miesner, who had delayed removing the cups for about 5 minutes (until the supervisors were arriving), Young was unable to confront Miesner personally. When Treater Packaging Manager Sappington commented that Young (who was still in tears) was too upset about it, she responded yes, "I'm upset enough to kick asses this eve- ning because ya'll just taking this out on me because I'm wearing this [Go Teamsters] T-shirt," She argued, "This T-shirt has nothing to do with my job. I do my job. I do more than my job, and I think ya'll ought to stand behind me when I do my work." The Company still did not call Miesner to the meeting, and, after further discus- sion, the employees returned to work. That afternoon the Company's labor counsel came to the plant and took written statements from the two an- tiunion feeders, Miesner and Bunch. Shortly before the shift ended at 3 p.m., the counsel talked to Young. On direct examination, she testified that she acknowledged to the counsel making the statement that she was mad enough to "kick asses" and that she had a high temper, but stated, "I'm a very nice person," and that, in 9 years of employment, there had never been any question about her attitude or her work. She then explained that "it just upset me for this to happen, in the manner that they pro- ceeded to settle it." The counsel asked her if she had a personal knife and she answered no, only her working knife (a sharpened putty knife). On cross-examination, the Company's counsel told Young that, "With regard to the way you have related our . . . meeting that after- noon, I don't have any particular problems with that at all. You said nearly everything that I remember, like- wise." Then he asked: Q. One thing that I remember saying to you that afternoon is I said something, did I not, to the effect of "Tempers tend to get hot during this type of campaign [referring to the union organizing cam- paign]?" A. You did say that.... I told you this had nothing to do with my temper, as far as the cam- paign, you know. I felt, even with a campaign, an employee is an employee, as long as he or she do their work-and I make sure that I do's my work. Young explained, "I felt like that they was making a dif- ference in me as a Union and they was nonunion. I felt like that there was a difference in that." Finally, Young told the counsel that "it will not happen again . . . that I thought that it was bad for me to lose my temper, when they wasn't my machines. although I have to report to someone if the machines do not come up to the efficien- cy that they should come up to. But I felt like, after I thought about it, you know, if they wasn't concerned about it staying down 15, 20 or 30 minutes, then why should I." (The counsel did not offer to take her written statement, and did not take statements from disinterested employees who observed the incident.) c. The final warning The next day, August 7, in Plant Manager Rothen- hoefer's office, Rothenhoefer (in Personnel Manager Bobby Aldridge's presence) handed Young a disciplinary action form and told her, "Here, Billie, sign this." (It stated that "Billie Young threatened a co-worker to the point that she had to be restrained by other workers. The seriousness of this incident warrants a final warn- ing." At the bottom was an acknowledgement "that I have been warned in writing about threatening co-work- ers. I understand that if the problem persists I will be ter- minated without further warning.") She told Rothen- hoefer, "I don't think it's right. Why do I have to sign one?" and asked if the other girls had to sign one. He answered no and she asked why. He said, "Because of the nature of it. You threatened them." She denied threatening anybody, and told him that what she had said, about "kicking asses," was said in the office, and asked if that is what he meant by "Threaten." She then asked him "why don't you call somebody that really seen what happened?" and mentioned the "two lab qual- ity girls" and the fact that "Genieva was standing turn- ing the cups." She asked, "Why don't you call Genieva and why don't you call Helen [Clark] and Kathy [Nelson], who was the three closest people sitting." He responded, "I don't want to call nobody. I done heard all of this about this I want to hear. You just sign this. "She asked if she had to sign it and he told her yes. She then signed under protest, writing under her signature, "Refuse to sign because of my union activities." Rothen- hoefer said he could not give her a copy, and, as she got up to walk out, she told him she thought it was very unfair and she did not think he had done it right. Plant Manager Rothenhoefer testified that the final warning remains in the employee's personnel file as long as she is employed. SW'EETHEART CUP OF 'I`EXAS 347 d. The Conpanyv's defenses The Company did not call as a witness Department Manager Talton (who arrived while feeder Miesner was refusing to clear chute No. 19), nor any of the disinter- ested employees. Instead it called antiunion employee Miesner, who gave a most implausible account of what happened. According to feeder Miesner, she did not know any- thing about the jamming of chute No. 19 until Patsy Bunch had "come over to discuss" a spider which fell on Miesner's neck, and then "I looked up and I saw that Chute Number 19 was about to jam." She claimed that she and Bunch "began to pull the cups down and, when I turned around, Billie Young was standing there, yelling in my face. She was waving a knife in her hand, saying, 'I'm going to pull you two down off there and I'm going to whip your ass."' She claimed that Bunch then left to get Kenny Beard, and that, by the time Beard, Sapping- ton, and Feldman got there, "Billie was still yelling, waving her knife." She also claimed that a "few people" came off the cup floor and "tried to restrain Billie," but that Young kept telling them "just to leave her alone and that she wanted to whip our asses-pull us down and whip our asses." She repeated that after Sappington and Beard got there, "She just kept yelling and waving the knife" On cross-examination she testified that Young was "speaking, mainly, to me," but that, "After I pulled the cups down off 19 and was trying to put them in the box, Billie was standing behind the boxes, waving her knife, saying, 'I'm going to pull both of you down off of there and I'm going to whip your asses."' Thus, according to this version, Miesner and Bunch immediately began pulling down the cups from chute No. 19, and, after the cups were removed and she was "trying to put them in the box," Young began yelling, waving a knife, and threatening to "whip your ass." a "few people" tried to restrain her, but, even after the su- pervisors arrived, "She just kept yelling and waving the knife." Contrary to Plant Manager Rothenhoefer's testi- mony, it is obvious that the Company did not credit such an account, because there is no reference to waving a knife or threatening a coworker with a knife in Young's final warning. From her demeanor on the stand, Miesner did not appear to be a forthright witness. I discredit her claim that she and Bunch were pulling down the cups from chute No. 19, that Young waved a knife in her hand or threatened to whip either Miesner or Bunch, and that people tried to restrain Young. I credit instead the testimony of Young, corroborated in part by operator Katherine Nelson, that Miesner was refusing to pull the cups from that chute, that Young had her working knife in her rear pocket (not in her hand), that no threats were made at the time, that it was later in the office when Young made the statement about being "upset enough to kick asses," and that Nelson tried to console Young, but nobody attempted to restrain her. I note that Cup Production Manager Feldman gave another version of what happened, disputing part of em- ployee Miesner's version. Contrary to Miesner's claim that, when Feldman and Sappington arrived on the scene, Young just kept yelling and waving the knife," Feldman claimed that, when he arrived, "I found a . . . large young [unidentified] man, who works on the cup floor, restraining Billie Young." He also claimed that "Kathy Nelson also was restraining her." (To the con- trary, as found above. Nelson put her arm around Young, trying to console her when Miesner was refusing to pull the cups from chute No. 19, and this happened before Nelson left the area to ask Feldman to come.) An- other defense witness, Treater Packaging Manager Sap- pington, in turn, saw neither Young waving a knife nor anybody trying to restrain her. In Sappington's written report of the incident, he claimed that when he asked Young in the office "what she said to the girls it was something like I'm going to whip some ass and she told Patsy if she was involved she would get some of the same." On the stand, he claimed that Young answered that she had said "something to the effect of she was going to whip some asses, and that if the problem reoc- curred, she was going to yank somebody off of the plat- form . . . at which the feeders were." Finding Young to be the more credible witness, I credit her testimony that she made the statement only in the office that she was "upset enough to kick asses," and discredit Sappington's testimony and report to the contrary. Concerning Young's organizing activities, Plant Man- ager Rothenhoefer claimed on the stand that, no, her union activity "was not considered" when he decided to give her the written final warning. Yet he variously testi- fied that it was true that she had "a very high profile as a prounion supporter in the plant"; that, because of the seriousness of the incident and "some of the tension in the plant," he had their attorney come to the plant: that Young's union support did not have a "material effect" on his decision; and that, "f I did consider it, it benefit- ed Billie Young." He admitted that it was a "drastic" measure to be giving a final warning to a 9-year, no- prior-written-warning employee, but he testified that he considered it to be a "serious situation" for Young to be threatening employees while waving a knife in her hand. (As noted above, there is no mention in the final warning of Young waving a knife.) Rothenhoefer also claimed that Manager Feldman reported to him that it was a "very serious situation" which went "to the point of fisti- cuffs." (Fighting is a basis for automatic discharge, but there is no contention that Young fought anybody.) He claimed that he concluded from his investigation that there was no intentional jamming of the cup chute, yet it is undisputed that he refused to talk to disinterested em- ployees who observed the incident. Furthermore, there is a marked discrepancy in the statements taken by his counsel from feeders Miesner and Bunch concerning whether Miesner refused for about 5 minutes to pull down the cups from chute No. 19, causing cup-forming machine No. 19 to jam. In Miesner's statement (Resp. Exh. 21), she claimed that, after Patsy Bunch came over, "Patsy and I both began pulling the cups down from chute 19" (before Young came up). On the other hand, Bunch's statement (Resp. Exh. 20) relates that, after she went over to Shelley Miesner's station and looked up, "I could see that Shelley's chute 19 was jamming up with an overflow of cups," and "At that point," Young ran up-without any mention there or anywhere in the state- SWEETHEART CUP OFF EXAS 347 348 DECISIONS OF NATI()NAL LABOR RELATIONS BOARD ment that she and/or Miesner began pulling down the cups from chute No. 19. (Rothenhoefer did not impress me as being a candid witness.) e. Contentions and concluding findings The General Counsel contends that the Company's claim of "good cause" for giving employee Young the final warning "is totally unsupported by the evidence"; that the reasons given for the warning were pretextual; that, if Young had not openly supported the Union, she would never have been issued the warning; and that the "primary contributing factor to the 8(a)(3)" action against Young was her continued union activity. In its defense, the Company "argues that the real issue at hand regarding the Young disciplinary warning letter is the reasonableness of Plant Manager Rothenhoefer's ac- tions. .... It is argued that Rothenhoefer had a right to rely on the analysis of the facts offered by his 'Company lawyer' and that any inequities in the 'fact gathering' process should be blamed on the lawyer as opposed to Rothenhoefer. . .. The only real issue before this tribu- nal is whether or not the discipline was administered as a result of employee Young's alleged union activity or af- filiation." Concerning the argument that the Company's counsel, not the plant manager, should be blamed for "any inequities in the 'fact gathering' process," the brief admits the limited scope of the counsel's investigation: stating that he "was asked to interview Young, Bunch, Miesner, Sappington and Feldman." Thus the brief admits that his investigation was limited to interviewing Young (the union organizer), Bunch and Miesner (the antiunion employees), and Sappington and Feldman (two supervisors who were not present when, as found, Miesner refused for about 5 minutes to clear chute No. 19-waiting until the supervisors were arriving). Without explanation, the investigation did not include Department Manager Talton, who was present while Miesner was re- fusing to pull down the cups, nor the disinterested em- ployees who observed the incident. As found, the August 6 incident arose when antiunion employee Miesner, in order to harass union organizer Young, deliberately permitted cup-forming machine No. 19 to jam by refusing to remove the cups from chute No. 19. Also as found, Young did not wave a knife at Miesner, did not threaten her, and was not restrained by anybody. It was not until the Company refused to invite Miesner to the office, to enable her harassment of Young to be investigated, that Young made the statement before the supervisors and employee Bunch in the office that she was "upset enough to kick asses." I find that it is not the good faith of the company counsel's investigation in issue. It is the motivation of Plant Manager Rothenhoefer when he limited the inves- tigation; failed to interview the department manager who had firsthand knowledge that antiunion employee Miesner was harassing union organizer Young; ignored the discrepancy in the statements taken by the counsel from employees Miesner and Bunch (Miesner claiming that she and Bunch had pulled the cups from the chute, whereas Bunch omitted such a claim); proceeded with is- suing the written warning notice upon the purported belief that Young had "threatened a co-worker to the point that she had to be restrained by other workers" as claimed by antiunion employees Miesner and Bunch, al- though apparently questioning their credibility by ignor- ing their further claim that Young was threatening them while waving a knife in her hand; and, upon hearing Young's denials that she had threatened anybody or had been restrained, refused to inverview the three eye wit- nesses whom Young named. After weighing all the evi- dence, I find that Rothenhoefer's motivation for issuing the final warning to Young was not her statement made in the office, in a moment of frustration, and was not a good-faith belief that she had threatened Miesner and/or Bunch and was restrained. I find instead that the warn- ing was given in reprisal for her active union organizing in the plant. Accordingly I find that, by giving her the warning, the Company discriminated against her in viola- tion of Section 8(a)(3) and (1) of the Act. 2. Stegman's discharge Clamp truck operator David Stegman was a union supporter who engaged in handbilling at the plant on the night before his discharge. The question is whether he was discharged about 2:35 a.m. on September 12 (1 day before the election) because he was sleeping on the job or because of his union activity. According to Stegman, he was sitting erect in his clamp truck, with his head down, reading his load sheet when he was accused of being asleep. According to Shift Superintendents Jackie Lillard and Westley Woodall, guard David Collier came to their office that morning about 2:30 and reported that Stegman was asleep in the printed paper storeroom. The three of them went to the storeroom and Lillard and Woodall saw Stegman seated in the truck with his feet up and his head back. After waiting about 2 minutes, Collier pressed the automatic door opener in order to leave on his round and the noise of the door opening caused Stegman to awaken. Lillard asked, "David, you was asleep weren't you?" and Steg- man said yes. Lillard immediately sent Stegman home- the penalty for sleeping on the job being an automatic discharge. (Stegman, on the other hand, claimed that he denied being asleep.) When Stegman was asked "how do you account for the fact that [Lillard] came up and was talking to you about sleeping . . . unless somebody had reported to him that you were sleeping on the job?", he answered, "I be- lieve I was set up" I consider that unlikely and discredit his version of what happened. Although Stegman was an active union supporter and although the timing (the day before the election) may be considered suspicious, I find that he was discharged in the ordinary course of business for sleeping on the job. Accordingly I find that the allegation that he was discri- minatorily discharged must be dismissed. CONCLUSIONS OF LAW I. By giving employee Billie Young a written final warning on August 7 because of her union activity, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. S'WEETHEART CUP OF TEXAS 349 2. By coercively interrogating employee Young in the first week in June, the Company violated Section 8(a)(l) of the Act. 3. The Company did not discriminatorily discharge employee David Stegman. 4. The General Counsel failed to prove other alleged coercive conduct. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act, as set forth in the recommended Order below. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER2 The Respondent, Sweetheart Cup of Texas, Dallas, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Giving a final warning to, or otherwise discriminat- ing against, any employee for supporting Dallas General 2In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein hall, as provided ill Sec 102.48 of the Rules and Regulations. he adopted h Ihe Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes Drivers, Warehousemen & Helpers, Local 745, or any other union. (b) Coercively interrogating any employee about union support or union activity. (c) In any like or related manner interfering with, re- straining, or coercing its 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) Expunge from its records the written final warning discriminatorily given to Billie Young. (b) Post at its plant in Dallas, Texas, copies of the at- tached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS A SO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 1 In the event that this Order is enforced by a Judgnllit of the nilned Slates Court of Appeals, the ssords in the notice reading "Posted h\ Order of the National Labor Relations Board" shall read "Posltcd Pursi- ant to a Judgment of the United States Court of Appeals Fnforcing an Order of the National I.abor Relation, Board" SWEETHEART CUP OF TEXAS 349