Delta Faucet Co.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Delta Faucet Company, A Division of Masco Corpo- ration of Indiana and David C. Breeden and Michael Lindsey McGrew. Cases 25-CA- 10618, 25-CA-10678, and 25-CA-10934 August 21, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDAI.E On February 25, 1980, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and supporting briefs, and the General Counsel filed a 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions 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, Delta Faucet Company, A Division of Masco Corporation of In- diana, Greensburg, Indiana, its officers, agents, suc- cessors, and assigns, shall take the action set forth in said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. i Respondent has excepted to certaliln credibilitv Fridlilgs maide bh the Admini.srati e I a Judge It is the Board's etahlished polic clint Ioi o\errule anl adrinistrali , la" judge' rcsolutioll\ with respect to credl- hility unless the clear prep ilonderance if ;fll of tIhe rleanlt (evidece c( on1- viiccs us that Ihe resilutiolls i irnc rrccl S.alr dcrd Dl)r' 'all Prodiitui[. Inc., 91 NlRB S544 (95()) cifld I F 2d 362 (3d Cir 1951) We hasv carefully exainlted the ec dltl and finrld ro hasis fi r crcillg his illidig, APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. 251 NLRB No. 71 WE WII.L NOT discourage membership in In- ternational Union of United Automobile, Aerospace and Agricultural Implement Work- ers of America, Plumbers and Steam Fitters Local Union 157, AFL-CIO, or any other labor organization, by reprimanding, suspend- ing, or reassigning employees because of their union activities, or by otherwise discriminating against employees in regard to hire or tenure of employment or any term of condition there- of. WI- Wil.l. NOT deny leave of absence or rep- rimand or suspend employees because they file charges with the National Labor Relations Board. WEI: WILl NOT threaten our employees with discharge or other reprisal becuase of their union activities. WE WILL NOT threaten our employees with easier discharge, loss of open-door policy, or loss of Christmas bonus or other benefits if they choose a union as their bargaining repre- sentative. WE WILl NOT advise our employees that they do not have to testify in Board proceed- ings, advise or encourage them not to give such testimony, or threaten them with reprisal if they fail to testify favorably for the Compa- fny. WE WILL NOT spy on union meetings. WE. WIl.l NOT rotate or assign work in order to discourage union activity, or tell our employees that work is being rotated or as- signed for that reason. WE: WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WtF wiI.i. expunge from the personnel re- cords of David Breeden and Michael McGrew the disciplinary warnings which were given to Breeden in August, October, and November 1978, and to McGrew in May 1979. Wi wn.l. make whole David Breeden and Michael McGrew for losses they suffered by reason of the discrimination against them, plus interest. WE wil.i. offer Michael McGrew his former assignment at cleanup work in the machine de- partment. DelIrA FAUCETcr COMPANY, A DIVI- SION 01 MASCO CORPORATION 01 IN- I) ANA ---- - DELTA FAUCET COMPANY 3q95 DECISION STA I MEN I 01 THE CASE MARVIN ROTH, Administrative Law Judge: These consolidated cases were heard in Indianapolis, Indiana, on July 23 and 24 and August 16 and 17, 1979. The charges were filed on February 7, 1978, by David Bree- den, an individual, and on February 27 and May 16, 1979, by Michael McGrew, an individual. The consoli- dated complaints, which issued on March 27 and June 28, 1979, respectively, and were amended at and between sessions of the hearing, allege that Delta Faucet Compa- ny, A Division of Masco Corporation of Indiana (herein called the Company or Respondent), violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended. The gravamen of the complaints is that the Company allegedly engaged in discriminatory personnel actions against Breeden and McGrew because of their union and concerted activities and because McGrew filed an unfair labor practice charge, and engaged in other discriminatory or otherwise unlawful conduct, in- cluding threats of reprisal, promises and grants of bene- fits, surveillance of union meetings, changes in working conditions, and interference with the investigation and prosecution of these cases. The Company's answers deny the commission of the alleged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Upon the entire record in this case, from my observa- tion of the demeanor of the witnesses, and having con- sidered the briefs submitted by the General Counsel and by Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Company, an Indiana corporation with its admin- istrative offices located in Indianapolis, Indiana, operates a plant in Greensburg, Indiana (the facility involved in the present case), where it is engaged in the manufacture, sale, and distribution of faucets and valves for use in plumbing fixtures. In the operation of its business, the Company annually receives goods and materials valued in excess of $50,000 at its Greensburg facility directly from points outside the State of Indiana, and annually ships products valued in excess of $50,000 directly from its Greensburg facility directly to points outside Indiana. I find, as the Company admits, that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (herein called the UAW) and Plumbers and Steam Fitters Local Union 157, AFL-CIO (herein called the Plumbers Union) are each labor organizations within the meaning of Section 2(5) of the Act. III. THE AI.I.FGED UNFAIR l.AROR PRACTICES A. Background. Pertinent Company Organizational Structure and Administrative and Personnel Policies Masco Corporation (herein called Masco), based in Michigan, is the Company's parent corporation. Masco, either directly or through its corporate subsidiaries, in- cluding the Company, operates facilities at some 60 loca- tions, hav ing a total of about 9,000 employees. The Com- pany, i.e., the Delta Faucet Division of Masco, maintains offices in Indianapolis, and operates, in addition to Greensburg, plants in Chickasha, Oklahoma, and Canton. Michigan. The Greensburg Plant is the largest Delta fa- cility,. having some 500 to 700 employees during the period involved in this case. Gordon Hagadorn was and is Masco's director of industrial relations. Hagadorn was and continues to be actively involved in personnel and industrial relations matters at the Greensburg plant, al- though since November 1978, when Donald Ginder became director of personnel and industrial relations for the Delta Faucet Division, Hagadorn has delegated much of his responsibility in this area to Ginder. At all times material Ray Kennedy was president of the Com- pany, i.e., Delta Faucet, and Charles Lent was plant manager at Greensburg. Lawrence Childs was plant su- perintendent until April 23, 1979, when he went to work for another firm. Russell King was and is the Greensburg personnel manager and reports directly to Ginder. At all times material the Greensburg plant operated on two shifts (6:15 a.m. to 2:45 p.m. and from about 3:45 p.m. to about 12:15 a.m.), and production comprised six depart- ments: automatics, braising, assembly, machine, shipping, and maintenance. The machine department employees worked with automatic and semiautomatic machinery, and performed some hand operations. Former Manager Childs testified that the work of the machine department involved very little skill. Machine department employees were classified either as machine loaders, which included cleanup work, or machine setup persons. Arthur Swin- gle, who normally worked days, was foreman of the ma- chine department, and Neil Lanarie was his assistant fore- man for the night shift. During the night shift Lanane re- ported to Robert Buell, who was general night-shift fore- man for the plant. There were usually about 40 employ- ees in the machine department on the day shift and about 30 on the night shift. All were paid at the same rate. Breeden and McGrew, the two alleged discriminatees in this case, both worked on he night shift in the machine department at the times material to this case. The Company issues a handbook to its plant employ- ees, which describes employee benefits and the Compa- ny's disciplinary policy. The Company issued a revised version of the handbook in January 1979; however, the current book does not differ in any material respect from its predecessor. The handbook contains two features which are significant to the present case. The first is the Company's "open-door" policy, whereby employees are encouraged to bring their problems and complaints to the Company, beginning with their immediate supervisor and, if necessary, to higher levels of management, includ- ing the plant manager. As will become apparent, this 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policy has led employees to take such problems and complaints to higher management, including Masco In- dustrial Relations Director Hagadorn, and has resulted in an accessibility to higher management which might seem unusual in other large firms. The second feature consists of a policy of progressively severe discipline for viola- tions of plant rules, ranging from verbal warnings to written warnings, written warnings accompanied by sus- pension from work, normally for periods of from I to 5 days, and ultimately discharge. Some offenses (sec. 111) are classified as being sufficiently serious to warrant im- mediate discharge. Insofar as pertinent to this case, they include "starting or paticipating in any . . . work slow- down or other interference with production." Other of- fenses (sec. II) are classified as warranting nothing less than suspension. Insofar as pertinent they include viola- tions of lesser rules (sec. I) "after receipt of verbal or written warnings for two different violations within any one-year period." Most offenses fall within the section 1 classification. These include unauthorized absences, loi- tering or wasting time during working hours, careless workmanship causing rework or scrap, and failure to meet the standards of quality and performance as set by the Company. Records of discipline, including verbal warnings, are placed in the employee's personnel file. However, the handbook categorically states that, with respect to section I and section 11 violations, "only prior disciplinary actions which occurred within 365 days of the current disciplinary action shall be relevant." In practice, the Company usually has been lenient and flexible in applying its disciplinary procedure. Plant Manager Lent testified that "we bend over backwards for practically every employee in the plant." Violations of plant rules, even of a serious nature, often fail to result in a recorded verbal warning. The Company's personnel records indicate that three or more warnings within a 1- year period may fail to result in any suspension, that sus- pensions are rarely imposed for more than a 3-day period, and that suspensions are frequently revoked. The overwhelming majority of suspensions involve excessive unexcused absenteeism. The Company's records indicate that since January 1, 1978, only three employees were discharged for cause. One was discharged for assaulting a fellow employee, and two were eventually terminated because of a continuing and unexplained absence from work. B. The UA W and Plumbers Union Organizational Campaigns and the Companys Knowledge and Attitude Concerning Those Campaigns In early June 1978, a group of employees began an or- ganizational campaign on behalf of the UAW at the Greensburg plant. Michael Breeden played an active role in the campaign. Breeden obtained UAW authorization cards from Russell McVey, a setup man who then worked days in the machine department. Breeden, who usually carried the green UAW cards in his back pocket, distributed the cards to other employees during breaks on the night shift. Breeden, among the night-shift em- ployees, was the most actively involved in the campaign. However, the UAW campaign was not successful and was eventually abandoned. No further organizational ac- tivity took place at the plant until about October ,' when the Plumbers Union commenced its organizational campaign. In the interim, on August 18, the Company gave Breeden a disciplinary layoff, alleged by the Gener- al Counsel to be unlawful. The layoff will be discussed under a subsequent heading of this Decision. As indicated, the Plumbers Union campaign began about October 1. Jacqueline Wamsley, who worked as a loader in the machine department on the night shift, ini- tially contacted the Plumbers Union. The first meeting for employees was held at the Steelworkers hall in Greensburg. Thereafter, meetings were held weekly, nor- mally on Wednesdays, at the Steelworkers hall. Meetings were normally held for night-shift employees at 2 p.m. and for day-shift employees at 3:30 p.m. The initial union activists2 (Breeden, Wamsley, and night-shift machine loader William Underhill) informed their fellow employ- ees of these meetings by leaving notes around the plant. Thereafter, beginning about mid-October, the activists passed word of scheduled meetings by pasting gummed labels on employee lockers and in restrooms. Michael McGrew, who became involved in the campaign after he attended a union meeting on October 11, participated in this activity, as did Russell McVey, who then worked on the night shift. (Although the labels were company prop- erty, the Company does not contend that it administered disciplinary action to any employee because of such ac- tivity.) Beginning about October 19, the Union also dis- tributed handbills to the employees, and, beginning Octo- ber 31. placed advertisements in the local newspaper, all informing company employees of scheduled union meet- ings. Breeden, McGrew, and Wamsley actively partici- pated in distributing union literature at the plant and in talking about the Union to their fellow employees. After a lull during the Christmas vacation period the Plumbers Union campaign resumed in early 1979, and was still continuing at the time of the present hearing. Breeden and McGrew continued to be active in the campaign, but Wamsley gradually phased out her involvement, and by January she was in the Company's good graces. As indi- cated by the foregoing evidence, the second shift in the machine department was something of a hotbed of union activity. The Company was aware of both the UAW and the Plumbers Union campaigns and carefully monitored both activities. Plant Manager Lent, who admittedly prides himself on his success in avoiding unionization at the Greensburg plant, testified that he knew that there was a UAW campaign in the spring of 1978. Personnel Man- ager King testified that he learned of the Plumbers Union campaign through the union newspaper advertise- ment on October 31. However, Night-Shift Foreman Robert Buell testified that he learned of the campaign in late September or October through gossip from other su- pervisors and employees, that he learned of Breeden's in- volvement in the campaign from the time such gossip started, and that he also learned of McGrew's involve- All dltut herein mic I'fr Iht priod oi August I. 1'7X. hrough Jul 3). 1"7". 19unlc- oth.i,c indicated i tnle,ls othrwkeisc icedltcd the erm unioll" hereil refers 1t he I'lumbehrs Uilioll .laipigll DETA FAUCET` COMPANY 397 ment in the campaign through such gossip. Plant Man- ager Lent testified that "the grapevine is a very impor- tant communication device within any factory." In light of Lent's testimony, given in connection with his asser- tion that the "grapevine" was the Company's source of information concerning a suspected work slowdown during the summer of 1978, it is further evident that top management was aware of both campaigns from their in- ception, endeavored to learn whatever they could about those campaigns, and attached great importance to such information. The General Counsel introduced considerable testimo- ny to show that the Company was outspokenly hostile to the union campaigns in general, and, in particular, to the involvement of its second-shift machine department em- ployees, especially Breeden and McGrew. Some of this testimony was disputed, but some was not. Wamsley tes- tified that, in early 1979, General Foreman Buell told her that some of these "troublemakers," like McGrew and Breeden, better shape up or "they'll go out the door." Although Buell testified concerning a conversation with Wamsley in September 1978, he did not deny Wamsley's testimony concerning the later conversation. I credit Wamsley. The General Counsel contends that Buell's statement was a threat of discharge because of union ad- herence. However, as Buell's statement, standing alone, was susceptible of more than one interpretation, I shall defer consideration at this point, pending consideration of other references or alleged references by management to "troublemakers." Second-shift machine loader Wayne Morland testified that, in early June, Personnel Manager King told him that there were some "troublemakers" in the machine department, that one was out sick and the other was getting ready to go on days, and that the best King could do was to try to split them up. Morland testi- fied that at the time Russell McVey was the only second-shift machine department employee who was out sick, and Mike McGrew was scheduled to transfer to the day shift the following week. King, in his testimony, did not deny that this conversation took place. I credit Mor- land. Wamsley also testified concerning a conversation with General Foreman Buell and Assistant Foreman Lanane in Buell's office in September 1978; i.e., after the UAW campaign, but before the Plumbers Union cam- paign got underway. It is undisputed that Wamsley came to Buell's office to complain because she heard that Buell called her a whore, that Buell denied doing so, and that Wamsley initially asked to see Plant Manager Lent, but changed her mind before leaving the office. According to Buell, Wamsley wanted to see Lent about transferring out of the machine department; however, Wamsley testi- fied that she wanted to see Lent about the name calling. According to Wamsley, Buell told her during this meet- ing that "Russ [King] was pretty hard on Breeden but Russ is hard-headed and he likes to do things his way." Wamsley testified that Buell went on to say that: "We have troublemakers out here, like Breeden, McGrew, Underhill and a few more of them. They think a union would protect them and the things they do if it was here. But there isn't no way a union would protect them. If we had a union we could fire a lot easier with it than what we can without it because we wouldn't have to go through the procedures we now have with the hand- book." Buell, in his testimony, denied telling Wamsley that a union could not protect the employees, but assert- ed that he could not recall any other discussion about a union. Lanane testified that the meeting concerned Wamsley's complaints of harassment and name calling. Lanane admitted that Buell made a reference to "trouble- makers" in the machine department, but asserted that the reference was that the "troublemakers" were telling things to Wamsley in order to get her riled up. The testi- mony thus presents a credibility question concerning Buell's alleged remarks. I credit Wamsley's testimony about the September meeting. Wamsley's role in the Plumbers Union organi- zational campaign, and the circumstances under which she testified in this case, are of particular significance. As indicated, she was initially involved in the campaign, but eventually dropped out. Management regarded her as a good worker. In a sense, she was indebted to the Com- pany. In December 1978, Wamsley asked King to con- sider her daughter for a job. King did so, and Wamsley's daughter was hired the next month. Although the Gener- al Counsel subpenaed both Wamsley and her daughter to testify at the first session of this hearing (July 23 and 24), both failed to show up, and as a result it was necessary for the hearing to be adjourned in order to enable the General Counsel to institute a subpena enforcement pro- ceeding. (Wamsley was sick on July 23, but reported to work the next day.) Both Wamsley and her daughter were still employed by the Company at the time of this hearing. It is evident that both were extremely reluctant to become involved in this proceeding, and it is unlikely that either would knowingly testify falsely against the Company. Although company counsel suggested that Wamsley was out to get Childs, Buell, or Lanane, no evidence was presented that Wamsley made such an effort. In contrast, both Buell and Lanane were some- what equivocal about the September meeting. Neither unequivocally denied Wamsley'stestimony in its crucial respects. Moreover, Buell's reference to Breeden, McGrew, Underhill, and others as "troublemakers" was consistent not only with subsequent statements during the Plumbers Union campaign, but also with company suspicions which were expressed in August shortly before Breeden's suspension. Specifically, in a memoran- dum from Buell to Childs, which will be discussed in connection with Breeden's August 1978 suspension, Buell indicated that he suspected Breeden, McGrew, Under- hill, and employee Rex Sullivan of planning a concerted work slowdown. Additionally, as has been and will be discussed at appropriate points in this Decision, I have reason to question the credibility of the Company's prin- cipal witnesses in other crucial respects. I find that, by General Foreman Buell's remarks to Wamsley at their September meeting, the Company un- lawfully threatened its employees in two respects. First, Buell indicated that the Company was disposed to fire leading union adherents, and that, if the employees chose a union as their representative, the Company would find ways of doing so. Second, Buell further threatened that, if the employees selected a union, the Company would DELTA FAUCET COMPANY 397 398 I)ECISIONS OF NATIONAL, LABOR RELATIONS BOARD do away with the procedural safeguards contained in the employee handbook. Buell did not indicate that the handbook might be bargained away through collective bargaining; rather, he simply equated unionization with automatic loss of the procedures set forth in the hand- book. I further find that Buell's threats, together with King's remarks to employee Morland, shed light on the meaning of Buell's statement to Wamsley in 1979. In light of Buell's prior reference to union adherents as "troublemakers," and indication of the Company's incli- nation to get rid of union adherents, the plain implication of Buell's statement was that the Company was looking for a pretext to discharge Breeden and McGrew because of their union activity. In sum, I find that the Company violated Section 8(a)(1) of the Act by threatening em- ployees with discharge because of their union activity and by threatening its employees with loss of benefits if they chose a union as their bargaining representative. I further find, as will be discussed, that Buell's statements are evidentiary with respect to the Company's motiva- tion for the August 1978 suspension of Breeden, as well as subsequent personnel actions taken against Breeden and McGrew. C. Additional Allegations of Surveillance, Threats, Promises and Grants of Benefits, and Interference With This Proceeding Wamsley testified that she went to attend the October I I Plumbers Union meeting for night-shift employees (2 p.m.), and was standing in front of the Steelworkers hall when Robert Buell drove slowly by the Hall, proceeding west, looked directly at her, and proceeded on. Wamsley further testified that, at a subsequent union meeting later in October, the same thing happened again. The Steel- workers hall is located near the north end of Greensburg (on Fourth Street, two blocks west of Broadway), whereas Buell's home is located in the southeastern sec- tion of Greensburg, and the plant in the southeastern outskirts. Buell testified that he never saw Wamsley at the Steelworkers Hall. However, Buell testified that one Wednesday in early 1979 he was driving north on Broad- way when he saw Wamsley, driving east on Fourth Street, make a right turn onto Broadway. Buell testified that he had a practice of exchanging vehicles with a friend and that at the time he was going to the friend's house, located in the north end of Greensburg, in order to drop off his vehicle and drive the friend's pickup truck to work. The friend was not presented as a wit- ness. Buell also testified that from time to time he had occasion to patronize a pharmacy and two service sta- tions in the north section of Greensburg. However, these facilities are all located east of Broadway, which is the only street which runs continuously through Greensburg from north to south. Buell testified that he was certain that he saw Wamsley on a Wednesday because when he saw her he remembered that there was a union meeting that day. Neither version is inherently implausible. As in- dicated, I am generally inclined to credit the testimony of Wamsley over that of the Company's supervisory per- sonnel, and I credit her testimony in the present regard. Buell failed to present any legitimate reason as to why he would twice drive by the Steelworkers hall when a meeting of night-shift employees was scheduled. Assum- ing that Buell had some legitimate business in the north end of town, it is unlikely that he was proceeding to work at the time, as the night shift did not begin until about 3:45 p.m. If he were returning home, he would normally have proceeded by the most direct route, i.e., south on Broadway, without passing the Steelworkers hall. As indicated, the Company kept close tabs on the actual or apparent union and concerted activities of its employees. Buell, as the night-shift general foreman, was the logical person to engage in surveillance of meetings of night-shift employees if the Company were so dis- posed, which it was. I find that the Company, through Buell, engaged in surveillance of Plumbers Union meet- ings, and thereby violated Section 8(a)(1) of the Act. See Rish Equipment Company, 169 NLRB 847, 848-849 (1968), enfd. 407 F.2d 1098 (4th Cir. 1969). In January, Personnel Manager King interviewed Wamsley's daughter, Ginger Wamsley Wenning, for a job. Wenning was hired and began work on January 18. Her husband also works for the Company. Wenning tes- tified that at her interview King told her that there was a lot of union activity, that she would probably be ap- proached about the Union, and that most of the activity was in the machine department where her mother worked. According to Wenning, King said that they did not need a union because, if a union got in, the open- door policy "would go out the window," as would the Christmas bonus. King added that, if there were a union, people like Wenning's mother would not be able to ask to have their daughters considered for employment. King, in his testimony, denied mentioning either the open-door policy or union activity in Wenning's job in- terview. As indicated, I am inclined generally to credit the testimony of Wenning and Wamsley over that of the management representatives. The Company does not even suggest that Wenning harbors any grudge against the Company. Moreover, I find incredible King's testi- mony that although he spent 75 to 80 percent of the in- terview explaining employee benefits, he did not mention the open-door policy. That policy was unique, generally popular with the employees, and patently one which called for some explanation. (Wenning testified that King did in fact explain the policy.) King's alleged threat is also consistent with General Foreman Buell's earlier threat that the handbook disciplinary procedures would be abandoned if a union came into the plant. I credit Wenning, and I find that the Company, through King, threatened its employees with loss of the open-door policy and Christmas bonus if they selected a union as their bargaining representative. The Company normally gives an across-the-board cost-of-living wage increase to its employees once a year in early July. Pursuant to that policy, the Greensburg employees received a 50-cent-per-hour increase in early July 1978. All general wage increases must be approved by Masco, the parent corporation. In March 1979, and contrary to the prior practice, all personnel of Masco and its subsidiaries, from top executives on down, except those covered by collective-bargaining contracts, were given a 7-percent increase in pay. At Greensburg, this DELTA FAUCET COMPANY 399 meant for hourly rated employees increases ranging from 36 to 42 cents per hour. Within the Company, the in- crease was announced by Company President Kennedy in a series of meetings of assembled employees around March 1, and made effective as of March 5. The basis for the expedited increase, as explained by Kennedy, was the Company's desire to give a substantial increase to its employees while still remaining within the Government's voluntary 7-percent wage-price guidelines, which Kenne- dy submitted were not really voluntary. Kennedy assert- ed that, by making the increases effective in March in- stead of July, the employees could receive an extra 4 months of higher pay. At Greensburg, Kennedy made no mention of unions in his prepared address. Michael McGrew testified that in a question and answer session which followed Kennedy's presentation McGrew argued that unions would not go for the 7-percent guideline, and Kennedy argued that they were only hurting employees because employers thereby would lose business. (Kenne- dy told McGrew that the Company did not have any government contracts, but that some of its jobbers had such contracts.) In July 1979 the employees did not re- ceive any general increase. However, in June the em- ployees were informed that they would receive an in- crease of about 4 percent effective October 1, 1979; i.e., at the beginning of a new fiscal year for wage-price guideline purposes. That increase was in fact granted throughout the Masco system. Masco Industrial Rela- tions Director Hagadorn and his subordinate, Donald Ginder, testified in sum that the March and October in- creases were decided upon by Masco's top management essentially for the reasons set forth by Kennedy in his an- nouncement. The General Counsel contends that the March an- nouncement and increase were designed to discourage support for the Plumbers Union. Essentially, the General Counsel's position rests on the timing of these actions. In fact, Plumbers Union activity reached a peak in Febru- ary. However, I am persuaded that in the circumstances the Company has come forward with evidence to effec- tively rebut any adverse inference which might be war- ranted from that timing. The increase was unusual, but so were the economic circumstances in March 1978. The Company had not previously been confronted by a need to deal with the 7-percent guideline and the Nation was, and still is, in a period of high inflation. The General Counsel's argument might be more persuasive had the in- crease been limited to the Greensburg plant or even to the Delta Faucet Division. However, the Greensburg plant constitutes only a small part of Masco's enterprises. Moreover, Kennedy made no mention of the union cam- paign in his presentation; nor did the General Counsel come forward with any evidence that any company rep- resentative stated or even intimated that the increase had anything to do with the Plumbers Union campaign. Therefore, I find that the General Counsel has failed to prove by a preponderance of the credible evidence that the March increase was motivated by an intent to under- mine the Union's organizational campaign, and I am rec- ommending that this allegation of the complaint be dis- missed. On July 11, Wamsley received the General Counsel's subpena to testify at this hearing. She telephoned Person- nel Director Ginder, telling him that she did not want to get involved, and asked him what she should do. Ac- cording to Wamsley, Ginder said it was her decision, and he could not tell her not to show up, but that it was not necessary for her to show up if she did not want to, and that no action would be taken if she failed to show up. Wamsley then telephoned counsel for the General Coun- sel, who told her that she had to show up at the hearing. Wamsley next telephoned Plant Manager Lent, and re- peated what she said to Ginder. According to Wamsley, Lent said he knew nothing about the matter, but would have Ginder call her. Later that day Ginder called Wamsley. According to Wamsley, Ginder said that he had spoken to the Company's lawyer, that there would be no trouble if she disobeyed the subpena, that counsel for the General Counsel was trying to bluff and scare her, and that action would be taken only if the case de- pended on her, which was rare. However, Ginder said that the decision was up to her. Wamsley said she would not show up. Wamsley testified that on July 25, the day after the hearing was recessed, she told Foreman Lanane that she might spend her vacation in jail. According to Wamsley, Lanane told her not to worry, but that, if she had to testify, "I want to warn you to tell and say and do the right thing, because if you don't it could be pretty rough on you out here." Ginder testified concerning his two telephone conver- sations with Wamsley on July II11. On direct examination, Ginder testified that he repeatedly told Wamsley that he would not advise her, and that if she failed to show up they would either do nothing or they would go to the district court and get a subpena. However, on cross-ex- amination Ginder moved somewhat closer to Wamsley's version of their conversation. Ginder testified that he told Wamsley that he had spoken to the Company's at- torney, and that "they generally did not go to district court." Lanane testified that on July 25 he spoke to Wamsley, that they talked about the vacation (the plant had been closed for 2 weeks in July) and the weather, but that nothing was said about the hearing. Lanane tes- tified that he could not recall anything else they might have discussed. I credit Wamsley. I find that the Company, through Ginder, interfered with the right of employees to utilize the Board's processes by suggesting to Wamsley that she could disregard a Board subpena and by encouraging her not to appear at a Board hearing. The Company, through Foreman Lanane, further interfered with those rights by threatening Wamsley with reprisal unless she testified favorably to the Company. The Company there- by violated Section 8(a)(1) of the Act. Indeed, even on the basis of Ginder's own admission, he engaged in such unlawful conduct by telling Wamsley that the Board probably would not seek enforcement of her subpena. See Winn-Dixie Stores, Inc, and Winn-Dixie Greenville, Inc., 128 NLRB 574 (1960); Bob's Motors, Inc., Winn- Dixie Greenville, Inc., 241 NLRB 1236 (1979). DELTA FAUCET COMPANY 399 400 DECISIONS OF NATIONAL I.ABOR RELATIONS B()ARD D. Disciplinary Actions Against David Breeden David Breeden began working at the Greensburg plant in February 1976. His personnel record indicates that in January 1977, he received a verbal warning for careless workmanship causing rework or scrap of 240 pieces of Part 1887 by neglecting the proper gauge. In April 1977 Breeden received a "first" verbal warning for doing work in a careless manner. Breeden testified that both of these incidents involved the fact that he had injured a finger while working. On September 7, 1977, Breeden re- ceived a "first written warning" for running scrap, i.e., parts which could not be reworked, specifically, 580 pieces of Part 1714, and for careless workmanship caus- ing such scrap. On June 21, 1978, Breeden received a "second written warning" for running at only 63-percent efficiency. However, this warning was revoked on the ground that Breeden had not been working long enough on the part in question to obtain a higher rate of efficien- cy. No other discipline was administered to Breeden during the period from January 1, 1977, until his alleged- ly unlawful suspension on August 18, 1978. Therefore, for the purpose of imposing discipline for a section I or section II offense, Breeden's disciplinary record as of August 18 consisted of the written warning for running scrap which he had received nearly a year before. On the evening of August 17, machine loader Breeden was working on Part 1714. At the end of the second shift, he filled out a production slip, indicating that he had produced 2,700 pieces of Part 1714. These slips, which are filled out by the production employees, indi- cate the employee's clock number, part worked on, number of pieces produced, and time worked on the part. Day-shift machine loaders place the slips in a locked box, and they are examined by Foreman Swingle the next day. Night-shift loaders' slips are examined by Assistant Foreman Lanane at the end of the shift. In each instance, the foreman compiles the information to- gether with his own information, e.g., as to breakdowns, on a daily production sheet which he turns into the pro- duction control department for computerization of the production data. The production slips are normally kept for a day or less and then discarded by the foreman. What other production records were kept, and for how long, was the source of contradictory testimony which will be discussed infra. Breeden testified that the figure of 2,700 was a mistake on his part, and that in fact he produced 4,700 pieces that night. Breeden's testimony was corroborated by that of Wamsley. Wamsley testified that Breeden was operat- ing two machines immediately in front of her. According to Wamsley, about midway through the shift Breeden had two full pans of stock, and was looking for a cleanup man to help him move the pans. Wamsley of- fered to help Breeden, but he declined to let her do this heavy work, and moved the pans himself. Breeden and Wamsley testified without contradiction that there are 1,600 pieces of Part 1714 in a full pan. The pans are placed on a skid, which holds 16 pans, for removal to the degreasing machine, which is the next step in the production process. Breeden testified that on August 17 he produced 100 pieces less than three full pans of Part 1714, for a total of 4,700 pieces. According to Breeden, he placed his pans on a skid next to the aisle, there were already four or five pans of the part on the skid, and nei- ther those pans nor his own were marked or labeled in such a way as to indicate which employee or shift pro- duced the parts. Foreman Lanane testified that parts now contain a "weigh-up ticket" which indicates the shift which produced the parts, but that as of August 1978 parts were not identified by shift. Therefore, I do not credit the testimony of Former Plant Superintendent Childs that in a check on August 18 (which will be dis- cussed) he was able to verify Breeden's actual produc- tion on August 17 by reference to tags which were con- tained in the pans. Indeed, Childs admitted on cross-ex- amination that he could not make such verification. It is undisputed that Breeden was the only night-shift loader then producing Part 1714, and that one other employee was producing the part on the day shift. It is also undis- puted that on the evening of August 17 and on the fol- lowing day the degreasing machine was broken down, thereby preventing further processing of Part 1714. However, the record does not indicate exactly when the machine broke down or when it resumed operation.3 Breeden's indicated production figure of 2,700 pieces immediately attracted the attention of Foreman Lanane and General Foreman Buell. The figure was only slightly more than one-half of the output which was expected from one employee on a shift. On August 4 and again on August 16 (the previous night) when Breeden worked on Part 1714, he turned out 4,800 pieces. Significantly, at no time during the evening of August 17 did Foreman Lanane criticize Breeden, or claim to have seen him loaf- ing or taking too many breaks, although, as Breeden cor- rectly testified, it is unlikely that an experienced operator on Part 1714 such as Breeden could have made so little production without noticeably neglecting his work. Nor at this time did the foremen or any other representative of management accuse Breeden of not doing his best or taking too many breaks. Rather, without further investi- gation, they promptly accused him of participating in a conspiracy to slow down production. Management wit- nesses, from Plant Manager Lent on down, testified in sum that they suspected (as Lent put it, from "grape- vine" information) that David Breeden, Mike McGrew, William Underhill, Rex Sullivan, and possibly other ma- chine department employees were engaged in a conspir- acy to slow down production. No objective evidence was presented that any such conspiracy actually existed, or that any of the employees allegedly involved admitted being involved. In a memorandum, Buell allegedly in- formed Superintendent Childs that the employees told Buell that they intended to slow down production; how- ever, Buell did not confirm this accusation in his testimo- ny. Breeden testified that, although the employees voiced complaints about the Company's policy regarding breaks, there was no conspiracy. Rather, the only objective evi- dence of concerted activity during the summer of 1978 consisted of the aborted UAW organization campaign, of Ir r Supcrilcndentll Child, Icetified that the degreaser broke dol,\ latec on the ecrling of August 17 If so, hen it i possible that some of lredenls proldi( llon i Lis prioccst trougl ilr degreaser. and there- fore coiuld 1oI he c IIt.d DETTAA FAUCET COMPANY 401 which the Company was aware. Therefore, the inference is warranted that the Company's concerns were ad- dressed to that campaign and its possible effects among the employees. The next day (August 18), Breeden was summoned to Personnel Manager King's office, where King and Childs informed him that he was being laid off for 5 days for a conspiracy to slow down production. Although the al- leged offense was a section III violation which warrant- ed immediate discharge, Plant Manager Lent testified that the suspension was imposed in accordance with the Company's general policy of leniency in its disciplinary procedures. Breeden denied that there was any conspir- acy, asserting that the figure of 2.700 was his mistake and that he actually ran 4,700 pieces Childs said that he would check out Breeden's assertion. However, at this point he adhered to the 5-day suspension. Former Plant Superintendent Childs testified that from 5 to 7 p.m. on August 18, he, with the assistance of Foremen Lanane and Buell, ran a check of Breeden's production for the previous night, and confirmed that Breeden had in fact produced only about 2,700 pieces. Childs testified that they next checked the production of other suspected machine department employees and found no problems; i.e., that their production records failed to reflect a conspiracy to slow down production. Lanane testified that he assisted Childs in checking Bree- den's production, and Buell testified that he checked the production of other department employees. The testimo- ny presented by the Company in support of the alleged check was confusing, contradictory, and patently false in several crucial respects. Childs testified that they went through the pans and were able to count Breeden's pro- duction because the pans contained slips which indicated the date run and the number of pieces in each pan. This assertion was patently false, for, as testified by Lanane, no such slips were used at that time. Childs further testi- fied that there was no production left from the August 17 day shift or earlier, that he found only Breeden's pro- duction for August 17 and the day-shift production for August 18, and that they were able to verify Breeden's production by checking through Foreman Swingle's re- cords of the production for the day shift of August 18 and subtracting that figure from the total number of pieces on skids. This assertion was also patently false be- cause, as conceded by Lanane in his testimony, the day- shift production records were not available on August 18. As indicated, and as testified by Lanane, day-shift production slips are placed in a locked box, and are not counted by Swingle until the next workday, which in this case would have been Saturday, August 19. Lanane also testified that they counted production for four or five shifts, i.e., production accumulated over a period of 2 or 3 days, which was accumulating because of the breakdown of the degreasing machine. Lanane further testified that they found one skid in the department and another by the degreasing machine, and that the latter skid must have been full because otherwise it would not have been placed near the degreasing machine. If so, then this skid would have contained 16 pans, or as many as 25,200 pieces of Part 1714. Lanane further testified that, if one shift partially fills a pan, the next shift will empty its parts into the same pan. At one point in Childs' testimony he conceded that the pans were not separated by shift, but were all mixed together. In sum, as of the time of the alleged check there was an accumulation of production for some 2 or 3 days, the production was co- mingled in such a way that it was impossible to segre- gate or ascertain Breeden's production for August 17, and the day-shift production records for August 18 were not available. Michael Breeden testified that Childs, Buell. and Lanane told him that there was no way they could tell how much day-shift production was left on the skid. I credit Breeden because the objective evidence in- dicates that such was in fact the situation. It is also sig- nificant that, even accepting Childs' testimony, Childs unhesitatingly accepted the alleged (but as yet unknown) production figures for the day shift. but refused to credit Breeden's assertion that he produced 4,700 pieces on August 18. 1 find that, assuming some sort of check was run on August 18, Childs and Lanane were unable to find any basis for discrediting Breeden's assertion that he produced 4,700 pieces, and I do not credit their testimo- ny to the contrary. The next day (Saturday, August 19), Breeden tele- phoned Gordon Hagadorn, who agreed to meet him on Sunday at a restaurant. Breeden told Hagadorn of his predicament, and Hagadorn said that he would look at Breeden's production records. Within a few days (prob- ably on Tuesday, August 22, which would have been the fourth working day of Breeden's suspension) Breeden was notified at his home to come to Personnel Manager King's office. King and Childs told Breeden that they were satisfied that there was no general slowdown. However, they asserted that they checked and found that Breeden ran only 2,700 pieces on August 17 (which assertion was not true). They also told Breeden that they checked his previous production against the average output for the department, and found that 59 percent of the time he was performing below the acceptable stan- dard of 100 percent. They said that, therefore, they were reducing his suspension from 5 to 3 days and that he could return to work that night, which he did. They gave Breeden a "second written warning" notice which indicated that further violations might result in disciplin- ary action. However, the notice purported on its face to be given only for "running very low production on August 17, 1978." The notice said nothing about low production before that date other than a reference to the suspended warning of June 21. The notice stated that Breeden was "verbally warned about wasting time on several occasions over the past several weeks." Howev- er, Breeden testified, without contradiction, that, on sev- eral occasions when he was talking to other employees, Foreman Lanane would accuse him of wasting time, but say nothing to the other employees. Breeden again complained to Gordon Hagadorn. A few days later Hagadorn came to the plant, and Breeden was summoned to the front office to see him. Hagadorn showed Breeden three sheets of legal pad paper contain- ing figures which purported to show Breeden's daily production during the period from May 30 through August 17, the production standard for each operation, ELA FAUCET COMPAN 401 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Breeden's failure to meet the standard on 35 of 59 days. Breeden questioned the failure to meet the standard on 35 of 59 days. Breeden questioned the accuracy of some of the entries, in particular, some of the alleged production standards, or indicated standards, which con- flicted with statements made to him by Foreman anane indicating that lower figures were regarded as satisfac- tory output. Hagadorn and Childs testified, in sum, that they compiled the list from production records which were maintained by the accounting department. Some figures are questionable even on the face of the list. Thus, according to the list, Breeden produced 4,800 pieces of Part 1714 in an 8-hour day on August 4, and also produced 4,800 pieces in an 8-hour day on August 16. The alleged production standard remained the same (1,000 pieces every 1.6 hours). However, Breeden is credited with achieving 104 percent of production on August 4, but only 96 percent of production on August 16. Similar discrepancies appear with respect to other parts. Moreover, in light of other evidence which will be discussed, I find that the list not only was of questionable authenticity, but that, in the absence of a discriminatory motive, it is unlikely that Breeden's past production record, even if accurately reflected by the list, would have resulted in a disciplinary suspension. Wamsley testified that the Company never told her that she was expected to meet a production rate; rather, she was simply asked to give "an honest day's work for honest day's pay." Former Superintendant Childs testi- fied that this was the Company's policy. Childs admitted that comparison between employees is not necessarily ac- curate, that excess speed can affect quality, and that the Company told its employees that there were no produc- tion rates as such, but simply asked each employee to make his or her best effort. Childs testified that when he checked into production problems, he did so by depart- ment and operation and not by individual. Childs further testified that the August 1978 suspension of Breeden was the only occasion on which he compared the production record of an individual employee with the Company's production standards, and that he did so only at the re- quest of Breeden. In sum, while employees might be dis- ciplined for taking excessive breaks or visible loafing on the job, it was unusual for the Company to discipline an employee on the basis of the employee's overall produc- tion record. Childs and Plant Manager Lent testified that the Company maintains historical records of production for costing purposes. At the outset of this hearing, Childs was presented by the General Counsel as an adverse wit- ness. Childs testified that the Company maintained its computerized daily production records for about a week and then destroyed them. According to Childs, he re- veiwed the records on a daily and weekly basis. Childs further testified that the data was recorded by operation number, i.e. part being produced, and not by employee. When recalled as a company witness, Childs attempted to revise his testimony to the needs of this litigation. Childs testified that printouts of the foremen's reports were kept for about 3 months. I find Childs' admissions on his initial testimony to be a more accurate reflection of the truth than his later self-serving assertions, and those of Plant Manager Lent, concerning the computer- ized records. However, other significant testimony was adduced concerning maintenance of records which might reflect individual productivity. General Foreman Buell testified that Foreman Lanane keeps production records for his own use for a period of I year. Lanane testified that he recorded daily production, including individual records in a notebook, but that he stopped keeping such records in February or March 1978 when advised to do so by Childs. If in fact Childs gave such advice, it is more probable that he did so in February or March 1979 after the present charges were filed. The General Coun- sel subpenaed company records of production in the ma- chine department since January 1, 1978, but the Compa- ny failed to produce any records for any time material to this case other than the ad hoc compilation of Breeden's production allegedly compiled by Hagadorn and Childs. Company counsel asserted that such records did not exist. In light of the testimony of Buell concerning Lan- ane's records, I find that the Company intentionally con- cealed or destroyed individual production records which would be relevant or material to this case. The inference is warranted, and I so find, that had such records been produced they would have shown that Breeden's pro- duction compared favorably with that of other employ- ees in the machine department. That inference is further warranted by certain other testimony given by Childs. According to Childs, production in the machine depart- ment dipped from time to time and he looked into the matter. Childs first testified that Foreman Lanane told him that there were tooling problems, and then testified that Lanane said that there was poor effort on the part of the employees. In light of these admissions, I do not credit Childs' assertion that the department was doing fine except for Breeden. Additionally, assuming arguendo that Breeden pro- duced less than other department employees, the Compa- ny's records indicate that a 3-day suspension on the basis of Breeden's disciplinary record would have constituted unusually severe discipline when compared to treatment accorded other employees. Thus, the Company's person- nel records indicate that employee Howard Beasley, who had an extensive record of unexcused absenteeism, was given a third written warning accompanied by a 3-day layoff in January 1978, but the layoff was suspended "be- cause it had been ten (10) months since your last disci- plinary warning." In contrast, Breeden was suspended al- though his record indicated that he had not received any disciplinary warning in over 11 months. Moreover, the Company's adamant refusal to accept Breeden's explana- tion that he made a mistake in recording his production contrasts with its treatment of other employees in similar situations. Thus, Wamsley testified without contradiction that, when she miscounted and consequently understated her daily production by 1,500 pieces, Lanane simply told her to write down the correct figure. In light of the fore- going evidence, including the Company's outspoken animus toward the union organizational campaigns in general, and the role of Breeden and McGrew in those campaigns in particular, the various shifting and pretex- tual reasons advanced by the Company for giving Bree- den a 3-day suspension, and (as will be discussed) the DLLFA FAUCFT COMRANY subsequently unwarranted personnel actions taken against Breeden and McGrew, I find that the Company gave Breeden a written warning and 3-day suspension in August 1978 in reprisal for his active and leading role in the UAW organizational campaign. It is evident from the Company's course of conduct that it was determined to administer severe discipline against Breeden regardless of whether any legitimate grounds existed for such action As will be discussed further, the swarning and suspension were part of a countercampaign of harassment aid in- timidation directed against principal union adherents Therefore, the Company violated Section 8(a)(3) and (I) of the Act. On October 19, Breeden was running a boring mill. Foreman Lananle summoned Breeden into his office. Al the time, the Plumbers Union campaign had been urider- way for nearly 3 weeks. Lanane told Breedenl that he had not been making production for the past 2 %Neeks, and that the next step could be discharge. Breeden said that he was producing as much as he could. Lanane placed a verbal warning notice in Breeden's personiel file, indicating that Breeden had been slacking off or slowing down in his production. Lanane testified that Breeden's production had been slipping for several days, and that he gave Breeden a verbal wearning rather than "making an issue of it." I.anane did not show Breeden any production records or cost standards, and the Com- pany did not produce a 1 ertinent records at this hear- ing. However Laance testified that he knew that Bree- den's production was slipping because "I keep my daily production sheets for about three months." As indicated, I find that, in fact, I.anane kept such records from more than 3 months, that they were in existence at least at the time that the present charges were filed, and that an ad- verse inference against the Company is warranted. The verbal warning was unusual in another respect. Normal- ly, a first-line foreman did not threaten an employee with discharge. Rather, as Personnel Manager King indicated in his testimony, he was involved in any disciplinary measure beyond a first-step verbal warning (which nor- mally carried only the threat of a written warning) and. as discipline became progressively more severe, he would consult with higher management. As will be dis- cussed, Lanane himself explained to Breeden why he (Lanane) felt free, or more accurately required, to threat- en Breeden with discharge. When viewed in the context of Breeden's August suspension, and his suspension in November which will next be discussed, it is evident that the October warning was part of a campaign of harass- ment. The Company, without any justification, pushed Breeden to work faster, and, when he did so and conse- quently made a comparatively harmless and common- place production error, the Company promptly seized upon this error as a ground for issuing a 5-day suspen- sion and threat of discharge. I find that the Company. through Lanane, violated Section 8(a)(3) and (1) of the Act by giving Breeden an unwarranted verbal warning accompanied by a threat of discharge in reprisal for his leading role in the Plumbers Union campaign. On November 22, the day before Thanksgiving, Bree- den was running a T-body machine. At or about 8 p.m he noticed that the tapper was not operating properly. As a result the machine was not making threads ol the pieces which Breeden was running. A total of 178 pieces of Part 1742 werit through the machiine without thread- ing. This did not result i scrap, nor did it require unusu- al or difficult rework. All that was needed \sas for the pieces to be rerun. oreman anane and the setup Cnm- plosees reran the pieces and the process took about 45 minutes Nevertheless. Inanic reporlted the incident to 'Persolnctl Manager King, aiid the follos rtng londas Breedenl \as summoned to King's t offic King and Childs gaec Breeden a "third s-srittcn \sriring,' acconm- panied bh a threalt of discharge for the ncst iolation. atitd ga ,c hiln a 5-daN suspensioi I Thc disciplir \as iOs- tersibls fir runitiing scrap ( hielt v,\as nlt trIue) I e s.arnirig also indicated that "in the Ilast s\C Ctllectil (17 days. Sou hase roun behlos iniimuintm proiltdtltiotll ile 1 different dass," alld that ''hecause of sonr pri-or- disciplin11 arx record [heretofore foud to be discrinminator,] .\c are giving you the Iext step of our disciplillar nitlrliall.'' No records or testimons \cere adduced iIi support of this assertion concerning loss production. s \cn on the basis of Lanane's admission that lie kept produclt ion records for 3 months, it is evident that Lanine still had Breeden's production record on Februar 8X, thetll the Compan received Breeden's unfair labor practice charge hich expressly alleged that his November la off \ras discrinli- nator, and unlawful. Moreover, the disciplinc iposed for the alleged primary offense, i.e.. ruliing 178 unth- readed pieces, was unusually severe hen coLitraled with the Company's lenient approach to comparable or more serious errors. In response to the General Counsel's subpena, the Company produced records of defectisce parts which could not be reworked and ,.cere therefore scrap which were produced by the machine department during the weeks of November 3, 10, and IX. Although subpenaed by the General Counsel, the Compaury did not produce any such records for the last week in Novem ber, nor did it produce any records of defective parts which ere reworked. The inference is ssarranled that the Company did not regard the matter of reworked parts to be of sufficient importance to warrant recorda- tion, or that such incidents occurred so frequentls as to make recordkeeping impractical. The records which were produced idicate numerous incidents of scrap. The records indicate that on one occasion 600 pieces of Part 1714 were scrapped, and on another occasion 349 pieces of Part 1730. However, the Company's personnel records fail to indicate that any disciplinary action was taken as a result of these incidents. Russell McVey, who in his ca- pacity as machine department setup man had consider- able experience in reworking defective parts. testified that almost every machine operator runs defective parts at times, but that in his experience, although an operator might be given a warning, he was not aware of any em- ployee (other than Breeden) being given a disciplinar suspension. McVey testified as to specific instances in- volving as many as 400 or 50( damaged pieces. requiring considerably more repair than mere rethreading. (t11 might be noted at this point with respect to this matter as well as the other allegations that. although the Getner- al Counsel substantially relied on testimotn b adverse 403) 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses and individuals currently in the Company's employ, the Company failed to present any nonsupervi- sory witnesses.) Breeden testified that, when he ran the unthreaded pieces on November 22, Foreman Lanane told him that "I can't hide the fact that you ran these bad pieces . . . because the front office is always keeping an eye on you." Lanane added that Childs and Lent were always asking him about Breeden's production. When Breeden asked the reason, Lanane allegedly answered that "it's no secret that when the UAW was trying to get in that you had union cards in your back pocket." Lanane, in his tes- timony, denied telling Breeden that the front office was out to get him, or keeping an eye on him because of union activity. However, in his investigatory affidavit to the Board, dated March 13, 1979, Lanane stated that he did not remember whether he told any employee that the Company was down on them because they had authori- ;ation cards. I credit Breeden in part because of Lan- ane's own demonstrated evasiveness and lack of credibil- ity', but also because the objective evidence indicates that the Company was in fact engaged in a pattern of harass- ment and intimidation against Breeden because of his union activities. I find that the Company took severe and unwarranted disciplinary action against Breeden in No- vember because of his continuing union activities, and thereby violated Section 8(a)(3) and (I) of the Act. E. Adverse Personnel Actions Taken Against Micahel McGrew and Related Allegations The remaining allegations of the complaints relate to Michael McGrew's reassignment to machine loading work in January, and the Company's refusal in May to excuse him from work for 1 day. Former Plant Superin- tendent Childs, as an adverse witness for the General Counsel, testified concerning the first matter, and Per- sonnel Manager King testified as an adverse witness con- cerning the second matter. As will be discussed, the two Company officials admitted making statements to McGrew which, even apart from other evidence, tend to indicate that the respective personnel actions were at least in part unlawfully motivated. McGrew began working at the Greensburg plant in February 1975. He worked as machine loader on the day shift until August 1978 when he transferred to the night shift. McGrew had a bad disciplinary record, indicating numerous warnings principally for unexcused absence and tardiness. On May 16, 1978, McGrew was given a 1- day suspension for failing to call in an unexcused ab- sence, and on August 14, 1978, he received a 5-day sus- pension for excessive tardiness and absenteeism. The sus- pension occurred shortly before that given to David Breeden; indeed, McGrew was on suspension when the Breeden incident occurred. However, the General Coun- sel does not contend that McGrew's suspension was un- lawful. McGrew, who was going through the throes of a di- vorce, felt that he needed a change in his work, specifi- cally something which required less mental concentra- tion and more physical labor. In the late summer or early fall, employee Bobby Stevens, who had been doing cleanup work on the night shift for about 6 months, made known that he wanted to go back to machine load- ing. As indicated, machine department employees were classified either as setup men or loaders. However, one loader on each shift worked exclusively or primarily at cleanup work. In other departments, cleanup work was performed by employees who were classified as janitors, and who regularly performed such work. In the machine department, loaders were frequently shifted from one machine operation to another. However, if the cleanup job was available, the foreman normally gave it to any employee who wanted it, and that employee remained on cleanup work as long as he wished or was able to per- form the work. In fact, very few employees wanted the job. Cleanup work, which involved among other things, placing pans of parts on the skids for degreasing and re- moving brass chips from the machines, was dirty, heavy, and oppressively hot in the summer. However, the job met McGrew's needs. McGrew asked Foreman Lanane if he could replace Stevens. Lanane agreed, and McGrew began doing cleanup work in early October. For the next 3 months, during which he remained on the cleanup job, McGrew had no disciplinary problems. He had a perfect attendance record during the last 4 months of 1978. Lanane indicated to McGrew that he was satis- fied with McGrew's performance. It is evident that McGrew was happy in his work. It is undisputed, and witnesses for both sides, including Plant Manager Lent, Childs, and the department foreman. Swingle, so testi- fied, that no employee ever asked for McGrew's job or complained about not getting cleanup work. Neverthe- less, on or about January 12, McGrew was summarily taken off cleanup work and assigned to a machine. McGrew testified that he saw a note from Swingle to Lanane, indicating that McGrew was to be assigned to a machine. McGrew testified that he went to see Personnel Manager King, who said he knew nothing about it. At this point Superintendent Childs came by, and King asked him about the transfer. According to McGrew, Childs said that he ordered the transfer because they were starting a rotation system for machine department cleanup work. McGrew explained why he wanted the job, but Childs gave no further explanation at this time. However, later that evening McGrew went with Fore- man Lanane to see Childs again about the matter. Ac- cording to McGrew, Childs said that he wanted to rotate the work in order to be fair and treat everybody equal "because of this union thing." Childs added that he did not want people getting mad at the Company because of the "union thing." Lanane conceded that McGrew had done a good job, but Childs insisted that the Company could not please one person when several others might want the job. Several days later McGrew went to see Plant Manager Lent about the matter. McGrew testified that Lent told him that employees were complaining that they were not being rotated enough. According to McGrew, Lent asserted that the Company was "in a fight with this union, and was going to do everything it could to keep them out, and was not going to please just one person." Later that day McGrew spoke to Foreman Swingle. According to McGrew, Swingle said that he knew nothing about the alleged rotation system, that he DELTA FAUCET CMPANYI thought McGrew asked to go off cleanup, and that Childs instructed him to put McGrew on a machine after asking whether there was any difference in pay between cleanup and loader. Childs, in his testimony, substantially confirmed McGrew's version of their meeting in Childs' office. Childs testified that McGrew asked why he was taken off cleanup. According to Childs, he explained that the Company had to rotate and treat everyone the same, that "you know there is union activity" and "we are trying to keep everyone happy," and that "rotation is a small thing to do to keep people happy." Childs testified that, so far as he was concerned, the Company did not need a union, and he was concerned that if the employees were un- happy they might seek a union. Apart from the question of whether Childs gave McGrew a truthful reason for his transfer (which question will be taken up infra), Childs' explanation constituted a violation of Section 8(a)(1) of the Act. It is settled law that "[a]n employer's legal duty in deciding to grant benefits" during a union campaign "is to determine that question precisely as if a union were not in the picture." Newport Division of Winter Knitting Mills, Inc., 216 NLRB 1058 (1975). By indicating to McGrew that the alleged rotation system was intended to discourage employee support for the Plumbers Union, the Company, through Childs, unlaw- fully interfered with the self-organizational rights of its employees. Plant Manager Lent, in his testimony, denied that he mentioned the Union in his conversation with McGrew. According to Lent, he told McGrew that he was trans- ferred because many employees, primarily in the second- shift machine department, were complaining that they were not being switched around in their work. If so, this was a blatantly false explanation. As indicated, machine loaders were frequently switched from one operation to another and no employee complained about not getting cleanup work. In light of Child's admittedly preferred explanation for McGrew's transfer, the inference is war- ranted that Lent gave the same or a similar explanation to McGrew. I credit McGrew's version of his conversa- tion with Lent, and, for the reasons heretofore indicated with respect to Childs, I find that the Company, through Lent, violated Section 8(a)(l) of the Act. Assuming that McGrew's transfer and the alleged ro- tation system were intended to discourage union activity by keeping the employees happy, these actions would nevertheless be unlawful for the reasons indicated with respect to Childs' explanation along these lines. Howev- er, I find upon consideration of the evidence that these actions were unlawful for a somewhat different reason. Specifically, the Company transferred McGrew as pun- ishment for his continued and increasingly significant role in the Plumbers Union, and further sought to dis- courage that activity by creating the false impression that his fellow employees rather than the Company were responsible for the action. I further find that the alleged rotation system was nothing more than a thinly disguised pretext for transferring McGrew, which, rather than making employees happy, simply caused inconvenience and discomfort to other machine department employees. Childs initially testified that in January, acting in accor- dance with instructions given to him by Plant Manager Lent in 1978, he decided to rotate jobs in the machine department. However, Childs gradually retreated fromn this assertion. Childs conceded that in fact jobs were always rotated in the department, and that the only change was that the department foreman recorded the rotation on charts. However, that chart system did not commence until February, some 3 weeks after McGre\, was taken off cleanup. Childs also conceded that the ro- tation plan did not involve setup work. and that in fact the only change involved the loaders who performed cleanup work. Moreover, rotation of cleanup work in- volved only a small number of loaders. The Company's rotation schedules for the months of March, April, May, and June indicate that during this entire period the fore- men planned to rotate cleanup work among only four employees (Carl Lochard, David Bowman, Jack Gibson, and Ivan Lawrence), two of whom worked days and the other two nights. In sum, Childs' alleged great design to avoid unionization by keeping employees happy affected less than 10 of the plant's 500 to 700 employees. Childs testified that job rotation was based on a combination of what employees wanted to do and what they did best. If so, the Company went about it in a strange way. The Company summarily took McGrew off cleanup, where he was satisfied and performed well, and replaced him with Benton Fields. Fields had worked continuously for 2 years on cleanup until the end of 1977, when he re- quested to be taken off the job because of arthritic pains Within 2 weeks of his reassignment in January, the pains resumed, and the Company was forced to replace Fields with Bobby Stevens, who, as indicated, previously did cleanup work until he asked to be taken off. Neither Fields nor Stevens asked for the assignment. It is evident that McGrew's reassignment was in fact primarily direct- ed against him, and was not intended for the general hbet- terment of the employees. Therefore. I do not credit the respective assertions of Childs and Swingle that Childs devised a rotation plan without reference to any particu- lar employee, and that Swingle independently decided to take McGrew off cleanup. I credit McGrew's testimon> concerning his conversation with Swingle, and I find that Childs directed that McGrew be transferred, that he did so in reprisal for McGrew's union activity, and that the Company thereby violated Section 8(a)(3) and (1) of the Act. The General Counsel further contends that the job rotation system violated Section 8(a)(1) of the Act in that it constituted an improvement in working conditions which was intended to discourage union activity. I agree that implementation of the system was unlawful, but not for the reason advanced by the General Counsel. Rather than being an improvement in working conditions, the system was a pretext for McGrew's discriminatory trans- fer, which system affected, in some cases adversely (in light of the general undesirability of the work), the working conditions of other employees Thereforer. the Company violated Section 8(a)(3) and (1) of the Act by implementing the system. However, as the General Counsel is invoking only Section 8(a)(1) with respect to this matter, I shall limit my findings and conclusions to that Section. 4()5 406 I)tECISIONS ()F NATIONAI LABOR RELATIONS BOARD On January 30, McGrew received a written warning for excessive tardiness and absenteeism, specifically, for being late twice in January. The warning also noted that McGrew had improperly operated his machine, and indi- cated that further violations might result in discharge. The General Counsel does not contend that the warning was discriminatory. McGrew testified that during the months of February, March, and April he was absent for about 2-1/2 days because of snow conditions and also be- cause he (with permission) took off a half day in connec- tion with a bankruptcy proceeding. In early 1979 McGrew applied to take a test to qualify for a carpen- ters' apprenticeship program. On April 30, McGrew re- ceived a letter (dated April 24) informing applicants that the test would be given at 7:30 p.m. on May 3 i.e., during McGrew's working hours. On May 2, McGrew asked Foreman Lanane for permission to take the next night off so that he could take the test. According to McGrew, Lanane said he thought he could work it out, but that McGrew would have to ask Personnel Manager King. Lanane testified that he told McGrew that he thought he could do without McGrew in the depart- ment, hut that McGrew would have to see King because of McGrew's past absentee record. McGrew went to King's office. According to McGrew, King said "I don't see how we can let you have this time off." McGrew asked why, and King answered, "Just because." McGrew pressed King for an explanation, whereupon King asked, "Well, you don't expect any favors from us?" McGrew again asked King for a reason, and King responded, "Didn't you file charges against us with the Labor Board?" (McGrew filed a charge on February 27, alleging that the Company discriminatorily took him off cleanup work.) McGrew answered that it was his right to file a charge. King responded, "Well, you haven't made any friends up here," and McGrew abruptly left King's office. McGrew testified that King did not men- tion his prior record and gave no other reason for refus- ing to give him the time off. McGrew then telephoned Company President Kennedy, who said he would get back to McGrew. About one-half hour later, Foreman Lanane informed McGrew that Kennedy refused to re- verse King's decision. In the meantime, Michael Breeden and William Underhill attempted to intercede on McGrew's behalf, but were rebuffed by King. The next day (May 3) McGrew went to Breeden's home. After in- forming the Board's Regional Office of the situation, the employees attempted to telephone Gordon Hagadorn. They eventually reached him at a location in California. They told him about McGrew's problem, and, in re- sponse to Hagadorn's inquiry, McGrew informed him of his attendance record. According to McGrew, Hagadorn told him to go ahead and take the night off, but to let the plant know that he was doing so, and to inform him (Hagadorn) if McGrew's absence resulted in any disci- plinary action. About 2:30 that afternoon, McGrew tele- phoned Lanane and told him that he would take off the evening in order to take the test. According to McGrew, l.anane answered that it was okay with him because 'you know how I feel about the situation." McGrew took the night off and took the test. King, as an adverse witness for the General Counsel, testified concerning his refusal to permit McGrew to take the night off. King testified that when McGrew told him about the test, he (King) asked if it had any connec- tion with his present job. McGrew answered that it did not. King then said that he could not give McGrew the time off because he had just given McGrew 4 hours off 10 days earlier (referring to the bankruptcy proceeding), and because the plant was just getting back from layoff and they needed McGrew's production very badly. King did not indicate that McGrew's absentee record had any- thing to do with his decision. At this point McGrew asked what King had against him. Initially King protest- ed that he had nothing against McGrew, but had bent over backwards to help him out in the past. However, when McGrew persisted, King asserted that "it appears that the more I do for you the more you attempt to stab me in the back." When McGrew demanded to know what King meant, King answered: "Well, what about going and filing a charge with the NLRB against me? Is that not stabbing me in the back for all the good things I have done for you?" McGrew asserted that it was his privilege to file a charge, and King responded that it was his privilege to refuse to give him the night off. Assuming that the conversation took place as de- scribed by King, the reasons initially advanced by King for refusing to grant the requested leave were demon- strably pretextual when viewed in light of the surround- ing circumstances. King, as a company witness, testified that, in deciding whether to grant a leave of absence, he normally checks the employee's record and also checks with the supervisor to see if the employee can be spared for the "number of days or weeks" requested. Although Foreman Lanane admittedly told McGrew that he could be spared for the evening, King never consulted with Lanane concerning McGrew's request. Moreover, the fact that McGrew's reason for wanting I day off was not job related was not normally considered by King to be a reason for denying such requests. Thus, in March King granted machine loader William Underhill a 4-week leave of absence in order to take training as a travel agent. When Underhill reminded King of this fact, King responded that "I bent over backwards before to help Mike out and I'm not going to do it anymore." Although Underhill, unlike McGrew, always had a good atten- dance record, McGrew's record had been satisfactory since the January 30 warning. Gordon Hagadorn testified that, when McGrew told him that he was placed on a 6- month probationary period following his suspension in August, he (Hagadorn) expressed surprise at the length. I find that King refused to grant leave to McGrew, or in his words to "bend over backwards" for McGrew, be- cause McGrew allegedly stabbed him in the back by filing an unfair labor practice charge. The Company, by King, thereby violated Section 8(a)( 4) and (1) of the Act. I further find that neither Hagadorn nor Lanane gave permission to McGrew to take off on May 3 or other- wise rescinded King's refusal. Hagadorn and Lanane, in their respective testimony, each denied that they told McGrew that he could take the night off. Hagadorn is a person who weighs his words carefully, and it is unlikely DELTA FAUCET CMPANY 407 that he would go over the head of a subordinate by di- rectly informing an employee to disregard the decision of that subordinate. Indeed, even in the context of McGrew's testimony concerning his conversation with Hagadorn, it is evident that McGrew understood that his absence would still be unexcused. Rather, Hagadorn was inferring, as he later expressly indicated, that McGrew did not have to fear the ultimate discipline of a dis- charge. As for Lanane, it is evident that McGrew under- stood that he was simply expressing his own opinion, and that Lanane had no power to override King's decision. McGrew returned to work on May 4 and, as he ex- pected, he was summoned to the front office. McGrew admitted that he took off the previous night after being refused permission. King verbally informed McGrew that he was suspended, subject to possible discharge, but that the Company, including Hagadorn, would review the case. McGrew requested a meeting, which was set up for May 7. Company Personnel Director Donald Ginder presided, and McGrew and King stated their re- spective versions of what happened. The next day McGrew was summoned to the plant. King handed him a letter indicating that on review of the matter his disci- pline was modified to a 5-day suspension with the possi- bility of discharge for any future misconduct. But for the Company's discriminatory refusal to grant him 1 day's leave of absence, the discipline would not have been im- posed. Therefore, it follows that the suspension and warning, like the refusal, were violative of Section 8(a)(4) and (1) of the Act regardless of whether such dis- cipline would have been warranted in nondiscriminatory circumstances. See, U.S. Electric Motors, Division of Em- erson Electric Company, 189 NLRB 205, 216 (1971). CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The UAW and the Plumbers Union are each labor organizations within the meaning of Section 2(5) of the Act. 3. By issuing verbal or written warning notices to David Breeden in August, October, and December, 1978, by suspending Breeden in August and November 1978, and by removing Michael McGrew from cleanup work, thereby discriminating against Breeden and McGrew in regard to their terms or conditions of employment in order to discourage membership in the UAW or the Plumbers Union, the Company has been and is violating Section 8(a)(3) of the Act. 4. By denying McGrew a leave of absence for I day and warning and suspending him as a result of such denial because he filed an unfair labor practice charge with the Board, the Company has violated and is violat- ing Section 8(a)(4) of the Act. 5. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The Company did not violate the Act by announc- ing and granting general wage increases. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1), (3), and (4) of the Act, I shall recommend that it be required to cease and desist there- from, to post the usual notices, to expunge from the per- sonnel records of David Breeden and Michael McGrew the disciplinary warnings which were given to Breeden in August, October, and November, 1978 and to McGrew in May 1979, and to offer McGrew his former assignment as cleanup man in the machine department. It will be further recommended that the Company be re- quired to make Breeden and McGrew whole for any loss of earnings as a result of the Company's unlawful con- duct against them, with interest computed in the manner and amount prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),4 and to preserve and make available to the Board or its agents, upon request, all payroll and other records necessary to facilitate the computation of the backpay due. I find upon consideration of the facts of this case that the unfair labor practices proven herein are sufficiently broad in scope and intensive in nature as to demonstrate that the Company has a general disregard of or hostility to the Act. Specifically, the unfair labor practices ex- tended over a period of nearly a year, involved two union organizational campaigns, were committed, ap- proved or condoned by high management officials, and involved not only harassment of employees who sought to exercise their self-organizational rights, but also fla- grant interference with the rights of employees to seek redress in Board proceedings. Therefore, I shall recom- mend that the Company be ordered to cease and desist from infringing in any manner upon the rights guaran- teed in Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 5 The Respondent, Delta Faucet Company, a Division of Masco Corporation of Indiana, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union of United Automobile, Aerospace and Agricultural Imple- ment Workers of America, Plumbers and Steam Fitters Local Union 157, AFL-CIO, or any other labor organi- zation by reprimanding, suspending, or reassigning em- ployees because of their union activities, or by otherwise i Se. generalI. I Plumhing d tleartng Co. 138 Nl.RB 716. 717 721 ["In Ic e cnt no exceptions are filed as prol ided h See 102 4t, of the Rule, and Regulation, of the Nationll Ilhor Relatilonl Hoard. the find- ings. .oI llIusiol . , Ilnd recommen ded ()rder hercil shall. as preo ided li Set 112 48 of the Rules iand RcgullaillIn., hbe adopted h the Hoard anld beoI/e its fiiTig'. cit1llIuiins. lld ()1rder. and all olbjectlls Ihereto shall bc deeme d Is.51 Cdi fr all purpoes DELTA FAUCET COMANY 407 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminating against employees in regard to hire or tenure of employment or any term or condition thereof. (b) Denying leave of absence or reprimanding or sus- pending employees because they file charges with the National Labor Relations Board. (c) Threatening employees with discharge or other re- prisal because of their union activities. (d) Threatening employees with easier discharge, loss of open-door policy, or loss of Christmas bonus or other benefits if they choose a union as their bargaining repre- sentative. (e) Advising employees that they do not have to tes- tify in Board proceedings, advising or encouraging them not to give such testimony, or threatening them with re- prisal if they fail to testify favorably to the Company. (f) Engaging in surveillance of union meetings. (g) Rotating or assigning work in order to discourage union activity, or telling employees that work is being rotated or assigned for that reason. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Expunge from the personnel records of David Breeden and Michael McGrew the disciplinary warnings which were given to Breeden in August, October, and November 1978 and to McGrew in May 1979. (b) Make whole David Breeden and Michael McGrew for the losses they suffered by reason of the discrimina- tion against them as set forth in the section of this Deci- sion entitled "The Remedy." (c) Offer Michael McGrew his former assignment at cleanup work in the machine department. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, per- sonnel records and reports, and all other records neces- sary to analyze the amount of backpay due. (e) Post at its plant in Greensburg, Indiana, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (f) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ' In the event that 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 National Labor Relations Board" shall read "Posted ursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board'