Weyerhaueser Co.

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Weyerhaueser Company and Highway and Local Motor Freight Employees, Local 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 26-CA-7739, 26-CA-7845, and 26-CA-7925 August 26, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On May 16, 1980, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering brief to the General Counsel's exceptions. 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, Weyerhaeuser Company, West Memphis, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. i We have modified the Administrative Law Judge's notice to conform with his recommended Order 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. 97 WE WILL NOT coercively interrogate our employees concerning their sympathies or de- sires regarding Highway and Local Motor Freight Employees, Local 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT impliedly threaten our em- ployees with discharge for engaging in union activities. WE WILL NOT solicit from employees their grievances and imply that they would be recti- fied in order to discourage their union activi- ties. WE WILL NOT imply to employees that their selection of a union would be futile. WE WILL NOT solicit our employees to cam- paign against the Union. WE WILL NOT suggest or encourage em- ployees to form or serve on a committee or group to discuss grievances with management as an alternative to having a union represent them. WE WILL NOT admonish employees not to give each other advice regarding union activi- ty or other protected concerted activity. WE WILL NOT more stringently enforce our work rules or change work practices in order to discourage our employees' union activities. WE WILL NOT issue verbal and written warnings to our employees in connection with a more strict application of our rules in re- sponses to the union activities of our employ- ees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL revoke and rescind the warnings discriminatorily issued to Linda Ross, James Rogers, Lula Mae Cunningham, and Roy Lee Brown and physically expunge from their per- sonnel records any record of such warnings. WEYERHAEUSER COMPANY DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge: This matter was heard at Memphis, Tennessee, on Febru- ary 4-6, 1980. The charges were filed by Highway and Local Motor Freight Employees, Local 667, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousmen and Helpers of America, hereinafter WEYERHAUESER COMPANY S75 called the Union, in Case 26-CA-7739 on April 5, 1979,' (amended May 18); in Case 26-CA-7845 on June I: and in Case 26-CA-7925 on July 16 (amended July 30 and August 10). The complaint in Case 26-CA-7739 issued on the subsequently filed charges on July 13 and August 14. The consolidated complaints, as further amended at the hearing on February 4 and 5, alleged that Weyer- haeuser Company, herein called the Respondent or the Company, violated Section 8(a)(l) of the National Labor Relations Act, as amended, herein called the Act, through various and numerous acts of interference, re- straint, and coercion of its employees by its supervisors and agents, and further violated Section 8(a)(3) and (1) of the Act through the written and verbal warnings issued to its employees James E. Rogers, Lula Mae Cun- ningham, Elbert Smith, Roy Lee Brown, Linda Ross, and Kay Suggs; through the suspensions of its employees James E. Rogers, Roy Lee Brown, Roy Miller, Laverne Stevenson, Sylvester Hill, and Curtis Golden; and through the discharge of its employee James Thompson, all because of their activity on behalf of the Union. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OI FACT I. JURISDICTION The Respondent is a corporation licensed to do busi- ness in the State of Arkansas with an office, plant, and place of business located in West Memphis, Arkansas, where it is engaged in the manufacture of hardwood ply- wood. During the 12-month period preceding issuance of the original complaint, the Respondent purchased and re- ceived at its West Memphis, Arkansas, location products valued in excess of $50,000 directly from points located outside the State of Arkansas and, during the same period of time, the Respondent sold and shipped from its West Memphis, Arkansas, location products valued in excess of $50,000 directly to points located outside the State of Arkansas. The Respondent admitted in its answer, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent also admits, and I find, that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union's organizational campaign began in early March. The first meeting between the Union and the Re- spondent's employees took place on March 3 at the home of employee Lula Mae Cunningham. Sometime within the next week or two, union buttons, about the size of a quarter or somewhat larger and containing the name of the Union thereon, were distributed to the em- ployees and a number of them began to wear them in the plant. I All dates are in 1979 unless otherwise stated On March 12 the Union by letter requested the Em- ployer to recognize and bargain with the Union. On the same date the Union filed a petition with the Regional Office of the Board, Case 26-RC-5960, seeking an elec- tion in an appropriate unit of the Respondent's employ- ees. Thereafter, a Stipulation for Certification Upon Con- sent Election was approved by the Regional Director on April 4 and an election was held on May 10. Challenges to certain ballots were sufficient to affect the outcome of the election. On May 17, the Employer filed timely ob- jections to the election. On June 22 the Regional Direc- tor's Report on Challenges and Objections issued recom- mending that one of the challenges be sustained and find- ing that the remaining challenges were not determina- tive. It was further recommended that the Respondent's objections to the election be overruled with the excep- tion of one which was ultimately set for a hearing. Fol- lowing the hearing, the Board on February 7, 1980, issued its Decision overruling the Respondent's objec- tions and certifying the Union. 247 NLRB No. 147. For the most part the violations of Section 8(a)(1) of the Act alleged in the complaint occurred prior to the election on May 10. On the other hand, most of the al- leged 8(a)(3) violations alleged, including the written warnings, suspensions, and the discharge, took place sub- sequent to the election. Because the allegations of the 8(a)(l) violations are numerous and are attributed to a number of different supervisors of the Respondent, chronological treatment of the allegations would be un- wieldy. Accordingly, treatment of the allegations will be set forth below substantially in the order that the allega- tions appeared in the complaint. B. The Alleged 8(a)(l) Violations 1. The alleged coercive interrogations and threats Employee Kay Suggs testified that she was sent to the employee lunchroom by Stepney Bennett, a foreman and an admitted supervisor, to talk to Kenneth A. Schom- mer, plant manager, about mid-April. Although Schom- mer initially asked Suggs about some equipment that was not operating the conversation soon turned to the union campaign. Schommer, according to Suggs, stated that the Company was completely against the Union and would do everything it could to keep it out. He then in- quired of her why she wanted a union and Suggs re- sponded, relating to him her reasons. Schommer went on to ask her if she had any particular problems, asked her what she thought the problems were generally, and if wages were a problem. The conversation lasted around 10 to 15 minutes, according to Suggs. Schommer, called by the Respondent, admitted the conversation with Suggs, and that the meeting was at his request. Suggs was wearing a union button2 when he talked to her. Further, on cross-examination Schommer admitted that he had asked Suggs about her union activi- ties and why she wanted the Union. The General Counsel argues that the interrogation of Suggs was coercive even though Suggs may have been I The button as described by itnesses as being about the size of a quarter and had the name of the Union on it WEYERHAUESER COMPANY 575 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wearing a union button at the time. Citing 17T Auto- morive Electrical Products Division, 231 NLRB 878 (1977), the General Counsel contends that an employer is not free to probe directly or indirectly into the reasons for even a known union adherent's support of the union be- cause such probes tend to be coercive. I find the cited case controlling here. Moreover, as the Board stated in Strucksnes Construction Co., Inc., 165 NLRB 1062 (1967), "In our view any attempt by an employer to ascertain employee views and sympathies regarding unionism gen- erally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, there- fore, tends to impinge on his Section 7 rights." See also Birdsall Construction Company, 198 NLRB 163, 170 (1972); General Metal Products Company, 164 NLRB 64 (1967). Suggs' wearing of the union button did not li- cense Schommer to conduct an inquiry into the basis or extent of her union support. Whether Suggs was person- ally coerced by Schommer's remarks is immaterial, for the test is whether or not Schommer's remarks tended to interfere with the free exercise of employee rights under the Act. See Mohican Mills, Inc., 238 NLRB 1242 (1978). I find here that it did. Employee Linda Ross testified that she was questioned by both Schommer and Earl Sayers, plant superintend- ent, around April 13. According to Ross, she first talked to Earl Sayers in the employee lunchroom at Sayers' re- quest. Sayers in his conversation with Ross told her he was worried about her and asked her why she felt like she needed a union "in here." Ross explained her dissat- isfaction and subsequently Sayers asked her if he could relate their conversation to Schommer. She approved. On the same day and shortly after the conversation with Sayers, Schommer asked Ross to meet him in the lunch- room where the two proceeded to talk about the Union. Schommer, according to Ross, asked Ross why she felt like she needed a union, and how she thought a union could help her. Ross was impressive in demeanor and recall, and I conclude that she is worthy of belief. In any event, Schommer admitted that he had asked Ross about her union activities and why she had wanted a union. Sayers also did not specifically deny the questions attributed to him by Ross. I therefore find that Sayers and Schommer questioned Ross concerning the basis of her union sup- port and in so doing unlawfully interrogated her in viola- tion of Section 8(a)(1) of the Act. Ross also testified that Adrian Huggins, a foreman and admitted by the Respondent to be a supervisor within the meaning of the Act, came to her at her work station I day shortly after the first union meeting on March 3 and stated that Schommer had heard that Ross was pass- ing out union cards. Ross denied that she had and Hug- gins responded that he did not blame her if she had be- cause he knew the problems that everyone was having. Huggins did not testify. Ross is credited. At first blush, because of Huggins' subsequent remark that he did not "blame" Ross if she had passed out cards, his initial in- quiry as to whether she had actually passed out cards might appear innocuous and uncoercive. However, it does demonstrate Respondent's concern generally, and Schommer's concern in particular, about employees' union activities. I conclude, and again notwithstanding the fact that Ross may have been wearing a union button at the time,3 that Huggins' questions tended to be coer- cive particularly when considered in light of the other violations of the Act found above and hereafter, and I find that Huggins' questions of Ross therefore violated Section 8(a)(l) of the Act. It was the testimony of employee Sylvester Hill that, at one point after he began wearing a union button, the date unspecified,4 Sayers approached him and, in relation to the union button Hill was wearing on his hat, asked Hill, "What you got on your hat there, Sylvester?" Hill replied that it was just a button and Sayers asked what he was wearing it for and if it was going to feed him. Hill answered that it was just for decoration. Sayers in his testimony did not specifically deny the questions at- tributed to him by Hill which the General Counsel argues constitute unlawful interrogation. Ordinarily a simple inquiry as to what kind of button an employee might be wearing might be innocuous. However, here Sayers coupled his initial question with a second question as to why the employee was wearing the button and whether or not the button was going to feed the employ- ee. The latter remark adds a more sinister connotation to the initial inquiry and suggests an economic risk involved in the wearing of the button. Accordingly. under these circumstances the question cannot be regarded as com- pletely innocuous and I conclude that it was coercive and violative of Section 8(a)(1) of the Act as alleged. Another incident of coercive interrogation was attrib- uted to Schommer by employee James Thompson. Thompson testified that on the day of the election Schommer approached him at his work station and asked him if he had made up his mind how he was going to vote. Thompson, who had worn a union button at the plant since about mid-April, testified that he told Schom- mer that it was a secret-ballot election and he would like to keep it like that because he knew how to vote. 5 Thereafter Schommer went with Thompson part way to the polling area as Thompson was going to vote. Schommer, in his testimony, did not recall, but did not specifically deny, the comments attributed to him by Thompson. He admitted that he had talked to Thompson about the Union on more than one occasion and had asked him to keep an open mind. Assuming Thompson's testimony to be accurate, I am not persuaded that Schommer's simple inquiry as to whether or not he had made up his mind about how he was going to vote, without more, constituted coercive interrogation. The question was not directed at ascertain- ing the way Thompson was going to vote or the reasons for Thompson's voting one way or the other. Under these circumstances, I do not find Schommer's question of Thompson to be coercive or violative of the Act. :' While the record establishes that Ross did wear a union button in the plant, it does not disclose when Ross began wearing i or whether she was wearing such a button at the time of the questions by either Schom- mer or Sayers as related above. ' Inasmuch as employees began wearing union buttons around a week or so after the first meeting on March 3, I conclude that Hill began wear- ing a union button around mid-March 5 Thompson testified that he was illiterate. WENTRHAUESERE COMPANYI 577 A number of instances of coercive interrogation was attributed to Foreman Stepney Bennett. Thus, employee Lula Cunningham related in her testimony that about March 26 she was approached at her work station by Bennett who asked her why she wanted a union. Cun- ningham replied that Bennett was not in a position to ask her why she wanted a union. There followed a discus- sion about the Union in which Bennett told Cunningham that if the Union got in the plant it could not promise her higher wages and could not give her job security and that once the Company and the Union went into ne- gotiations she would have to accept whatever the Union accepted from the Company. About 2 days later Bennett again approached Cunningham and asked her if she felt she was being treated unfairly at the Company. When Cunningham responded affirmatively Bennett replied that if he worked on a job and he was being treated un- fairly he would go some place else to work. A similar remark was attributed to Bennett by Linda Ross on March 30. Ross related that on that date Bennett engaged her in a discussion about the Union at her work station and remarked that Schommer was very disap- pointed in the employees. Subsequently in the discussion which involved an explanation by Bennett of the Compa- ny's hierarchy and Ross' place at the "bottom," Bennett remarked that he had worked for a company one time that he did not agree with so after 5 years he left and found himself another job. He then stated that if Ross did not agree with the Company why she did not leave and find another job. Bennett did not specifically deny the remarks attribut- ed to him by Cunningham although he did admit that he had talked to her about the Union once or twice. More- over, he did not specifically deny remarks attributed to him by Ross. I find the testimony of Cunningham, and Ross particularly, to be credible, and I conclude that Bennett made the remarks attributed to him. I further conclude that the question of Bennett as to why Cun- ningham wanted the Union tended to be coercive and was therefore violative of Section 8(a)(l) of the Act. In addition, as argued by the General Counsel, Bennett's in- vitation of Cunningham and Ross, in effect, to quit or find employment elsewhere constituted an implied threat of discharge. See Jobbers' Supply Inc., 236 NLRB 112, 118 (1978); 726 Seventeenth Inc., t/a Sans Souci Restau- rant, 235 NLRB 604 (1978). This conclusion is particu- larly applicable here where Bennett in the same conver- sation with Ross expressed the Respondent's disappoint- ment with its employees for supporting the Union, there- by equating union activity with disloyalty. See Oscar En- terprises, Inc., OMCO, Inc., Halvin Products Co., 214 NLRB 823 (1974). While an implied threat of discharge was not specifically alleged in the complaint it is clear that the facts upon which this conclusion is based were fully litigated at the hearing in conjunction with the al- leged interrogation. The Board and an administrative law judge are expected to pass upon an issue although it is not specifically alleged to be an unfair labor practice in the complaint if the matter was fully litigated. Monroe Feed Store, 112 NLRB 1336 (1955). Employee Thompson testified that I day after he began wearing his union button in mid-April, Bennett came over to his work station and asked him why he was wearing a union button and Thompson replied that it was because he had worked under a union before. Ap- parently nothing else was said. Bennett, in his testimony initially, could not recall whether he asked Thompson why he was wearing a union button but then denied it. I credit Thompson's version especially in light of the testi- mony of Ross and Cunningham, tending to show a pro- clivity on Bennett's part to inquire of employees regard- ing their reasons for union support. I therefore find this inquiry of Thompson by Bennett constituted another vio- lation of Section 8(a)(l) of the Act. An additional allegation of unlawful interrogation at- tributed to Foreman Huggins was alleged in the com- plaint. While not clear it appears that the General Coun- sel is relying upon the testimony of employee Lonnell Hill to establish the interrogation. Hill testified, without contradiction, that around the middle of March Huggins had passed out some literature concerning the company policy "against having the union." Shortly thereafter Huggins called her up to his desk in the plant and asked her if she understood the literature he had passed out. There followed some discussion of about 5 minutes' du- ration in which Huggins related to Hill that he had pre- viously been a union member. Hill testified that Huggins stated in the discussion that if the Union did come in the Company could shut down because they had other plants making the same products they were making. I can find no unlawful interrogation from Huggins' re- marks. The only question attributed to him was an in- quiry about whether Hill understood the literature given to her. The response to that question cannot be expected to reveal union support, sympathies, or inclinations. The remark attributed to Huggins regarding the plant shut- down would clearly be an unlawful threat. However, I am not satisfied that Hill's testimony was accurate with respect to the full context of Huggins' remarks. On cross-examination, Hill, while steadfastly maintaining that Huggins had said that, if the Union came in the Compa- ny could shut down, exhibited confusion as to the con- text in which the remark was made. Thus, asked if Hug- gins had made the remark in conjunction with strikes, Hill testified, "Well it was all in the same sentence that he brought about." Then she testified that Huggins said that if the Union did come in the plant could shut down because they had other plants making the same products that "we were making" and he was talking about the possibility of a strike w hen this conversation came up. Under these circumstances, and because it is unclear that Huggins' remark was not made in the context of a lawful temporary plant shutdown in response to a union strike, I am unwilling to base a finding of an unlawful threat of a plant shutdown on Hill's testimony. While not specifically alleged in the complaint the General Counsel introduced evidence that the Respond- ent through Plant Manager Schommer threatened em- ployees regarding the wearing of buttons. In this regard, employee Roy Lee Brown testified that at some unspeci- fied time after he began wearing a union button Schom- mer came to him in the plant and told him, "You know how me and Earl Sayers stands." After testifying that WEYFRHAUESER COMPAN 577 578 DECISIONS OF NATIONAL LABOR RELATIONS 13()ARD that was all that was said, and after a leading question from the General Counsel, Brown added that Schommer said, "You ought to take them union buttons off." I find Brown's testimony on this incident and Schommer's comments unpersuasive. Brown's testimony was vague and incomplete and his recollection poor. Moreover, in his prehearing statement to the Board, Brown had omit- ted any reference to Schommer's comment about taking the union button off. Accordingly, I do not credit Brown's testimony on this point, and therefore find no violation of the Act based on Brown's testimony in this regard. 2. The alleged solicitation of grievances and implied promises to rectify them The complaint alleges that Schommer on April 13 and 18, and Sayers on April 13 and May 10 solicited employ- ee grievances and impliedly promised that they would be rectified. With respect to the allegations regarding Schommer, the General Counsel appears to rely upon the testimony of Ross regarding her conversations with Schommer, already referred to above, as occurring in the lunchroom on April 13. 1 have already found that Schommer asked Ross why she felt she needed a union, and why they could not "talk this out." Ross responded to a degree but Schommer cut their discussion short, saying he had to take his wife to church for a Good Friday service. He asked to resume the conversation on April 18. The conversation was resumed in the same place on April 18 and Schommer, according to Ross, took the occasion to explain the Respondent's strong op- position to the Union. Schommer stated that the Re- spondent was a big company and a Union could not make it do anything, and all the union could do would be to take $14 a month out of the employees' paycheck. He added that the Union would, in effect, trade off em- ployee benefits like a holiday in order to have checkoff "because they are going to get their money regardless." Moreover, Schommer added that if the Union struck the Employer would take supervisors out of other plants and run the plant or transfer orders to another plant. Finally, Schommer concluded the conversation by stating that he felt that Ross was making a mistake. He said he thought that she was a very sensitive type of person, that he did not feel like she could endure everything that was going to be put on her because Weyerhaeuser would fight to keep the Union out. Schommer admitted he had talked to Ross on April 18 and did not specifically deny many of the comments at- tributed to him. Further, he admitted that he had asked Ross what she felt were some of the problems and claimed that he regularly solicited grievances from em- ployees. I credit Ross' version since, as already indicated, I per- ceived her to be a reliable and truthful witness. More- over, her testimony is substantiated to a degree by Schommer's admissions that he asked her to identify problems. Accordingly, I find that the Respondent through Schommer specifically solicited grievances from her in a context calculated to dissuade her from her union support. The fact that Schommer was seeking to identify employee "problems" carries with it the infer- ence that he intended to rectify such problems. See Tele- dyne Dental Products Corp., 210 NLRB 435, 440 (1974). Employees are not likely to miss the point of the implicit promise to correct the problems. I am unable to accept Schommer's unsubstantiated assertion that he regularly solicited grievances. While there was some evidence that the Respondent did have employee meetings at which it discussed "problems," the regularity of such meetings was never set forth on the record. Moreover, there was no evidence of any specific pattern of solicitation of indi- vidual employee grievances. In any event, it is clear Schommer's solicitation of Ross' "problems" in the con- text of the discussion about the Union was clearly re- sponsive to the union campaign. I therefore conclude that the Respondent through Schommer violated Section 8(a)(1) of the Act as alleged. I further conclude, still based on Ross' credited testi- mony and because the content of the conversation on April 18 is fully litigated, that Schommer's remarks to Ross were further violative of the Act because they clearly implied the futility of union organization. See Champagne Color, Inc., 234 NLRB 82 (1978); Calcite Corporation, 228 NLRB 1048 (1977). 1 further find and conclude that Schommer impliedly threatened the dis- charge of Ross by expressing to her his belief that she would not "endure" the union campaign. Again, while these latter two findings were not based upon specific complaint allegations it is clear that the conversations in which the unlawful statements were made were fully liti- gated and warrant the conclusions reached. With respect to the solicitation of grievances attributed to Sayers in mid-April the General Counsel apparently relies upon the testimony of employee Elbert Smith. Smith testified that in the second week of April, Sayers approached Smith and talked to him about the Union. Sayers remarked that he knew that Smith (a black) was a leader of his people6 and that, if Smith wanted to do something constructive to help "his people," one thing he could do would be to talk to his people and get them not to support the union activities. Sayers denied the re- marks attributed to him by Smith. Smith appeared sin- cere and I credit his testimony over Sayers' less persua- sive denials. In addition to claiming Sayers' remark con- stituted solicitation of grievances the General Counsel also apparently relies upon the same remark to establish a complaint allegation that Sayers unlawfully "solicited an employee to dissuade fellow employees from support- ing the Union .... " I find no solicitation of grievances by Sayers, but I do find that he did solicit Smith to "dis- suade" other employees against the Union and such so- licitation was tantamount to asking Smith to campaign against the Union. The Board has found such conduct to be violative of Section 8(a)( ) of the Act. Delco-Remy Division, General Motors Corporation, 234 NLRB 995 (1978); The Great Atlantic & Pacific Tea Co., 167 NLRB 776, 782 (1967). The General Counsel apparently relies upon the testi- mony of employee Roy Miller to establish an additional complaint allegation regarding solicitation of grievances " he reference, Smith testified. was to Smiths l acfiity in behalf of the NAACP. W'EYEHAUESER CPANY~ 579 attributed to Sayers.' Thus, Miller related that after he had voted on the day of the election Sayers talked to him at work and stated that "once they were trying to get a union there, and they tried to form a committee where that one man can go and talk to the boss for ev- erybody if anything went wrong." Miller replied that it would take guts to talk to the boss, and Sayers answered that he felt that Miller had guts and could be the man for it. I find Sayers' testimony somewhat equivocal in his denial of the remarks attributed to him by Miller. Sayers related in his testimony that the employees had a com- mittee and he does not know why he would have ap- proached Miller on a matter like that. While Miller's tes- timony was somewhat ambiguous I find it credible when weighed against Sayers'. However, I can find no improp- er or unlawful solicitation of grievances in Sayers' re- marks, and I can therefore find no violation of the Act in this regard. Although not alleged in the complaint, the General Counsel in his brief citing Hendel Manufacturing Company, Incorporated, 197 NLRB 1093 (1972), argues that Sayers' remarks constituted an unlawful suggestion for the employee formation of a shop committee to deal with employee problems. I concur in this position even though Miller's testimony was somewhat ambiguous and notwithstanding the uncontradicted testimony of Sayers that the employees had a shop committee that worked with Schommer at times. I do not view Sayers' testimo- ny as establishing that there was an active and function- ing employee committee during the union campaign. However, it appears, and I conclude, that Sayers' re- marks to Miller were calculated to encourage the forma- tion or use of an employee committee as an alternative to union selection by the employees. Sayers encouraged Miller to be active on such a committee. In so doing I find, as argued by the General Counsel, that the Re- spondent violated Section 8(a)(1) of the Act in Sayers' remarks to Miller. 3. The alleged threat of loss of benefits The amended consolidated complaint alleged that Brenda Chism, an admitted supervisor for the Respond- ent, on several occasions during the 3-week period begin- ning around April 19, threatened employees with loss of benefits if the Union were selected to represent them. The only evidence to support this allegation was pro- duced through the testimony of Roy Miller who testified that about 3 weeks prior to the May 10 election Brenda Chism came to him at his work station and told him that if the Union came in that he could stand to lose some of his benefits and even could take a cut in pay. She also added, according to Miller, that if the Union got in and there was a strike, if he got a job some place else the Union could fine him for it. Chism in her testimony did not specifically contradict Miller but expounded more on what she told him. She related that they were talking about union, pro and con, and about benefits. She related Miller was stating that he 7 "Apparently" must be ued because he General Counsels brief does not tie hi% arguments to the specific allegations of the complall and the only teslimon\ offered regarding Savers' conduct on MaN 10. the date alleged in the complaint, a, from Miller would guarantee that under the Union employees would get "so much an hour." Chism countered explaining that when they negotiated they sat down \with a blank piece of paper and the employees could get more than what they presently had or they could get less, that they could get more in benefits, or they could get less in vacation. In short, she said she told Miller that she could not guar- antee him he would get less but that was something that nobody actually knew for sure until it came down to the end. According to Chism, the conversation with Miller took place on April 19 and was related to a letter to em- ployees from the Respondent dated the same day which wvas in Chism's possession during the conversation and which outlined the give-and-take of the bargaining proc- ess. The General Counsel does not contend that the letter itself contained any unlawful statement. I do not find Chism's testimony to be inconsistent with Miller's. Even if Chism's account of her remarks to Miller were inconsistent with Miller's I would he in- clined to credit Chism's version because it is more com- plete, plausible, and consistent with the letter to the em- ployees which was being discussed. I can find no unlaw- ful threats of loss of benefits in Chism's remarks to Miller and I find no violation of the Act based upon such re- marks. It is also alleged in the complaint that Sayers threat- ened an employee with suspension for giving a fellow employee advice about the Union on or about July 9. This allegation is based upon the testimony of Lonnell Hill who related that on or about July 6 she had been approached at the plant by employee Calvin Taylor8 who had just had a dispute with Supervisor Bennett over a wage matter and who asked Hill how Taylor could get in touch with the "Labor Board." Hill told Miller not to call the Labor Board but to call the union representative at the union hall and she gave him the union representa- tive's telephone number about the time that Supervisor Bennett walked up. Bennett proceeded to tell Taylor to leave the building. The following day, still according to Hill, she and em- ployee Caroline Rucker were called to Sayers' office where Sayers questioned them about Taylor and said that he had been told that they had given Taylor "advice." Sayers went on to state, "This is not the first time I heard you all giving peoples advice. And I don't see why it is Calvin Taylor is at home and not you all." Sayers went on to state that he would appreciate it if they would stop "giving peoples advice." Hill protested that she had not given Taylor any advice until he asked for it and when he did ask her how to get in touch with the Labor Board she told him how to get in touch swith the Union. Sayers in his testimony recalled that Rucker and Hill had come to his office and talked to him in the presence of Carol Gardner (a personnel representative for the Re- ' The record ho'sk that Itill referred to Calvin as',lor Savers' testl- mony referred to the employee involved as Calvin Hill Ihe record col- lair, ia "srite up" bh Step Hennetll of an incidentl illsolWlig emplo) ee Calin il alor on July 6. ilslsli g Ta.lor's dlisputl. uith Btcnett over a 'age claim xlhich ultimalelk resulted in Taylor', suspension on Juls ht. (; C Fxh 83 I conclude that bolh Hill and Saser, erc referring to the Cals il I a lor %tl pets1iOI WEXERHAUESER COMANY 57q 580 DECISIONS OF NATIONAL LABOR REILATIONS BO()AR) spondent who did not testify) regarding the suspension of Taylor. Sayers said that something came up in the conversation about having made some comment about them giving "advice." Sayers said that he told them, "I don't know about anyone giving anybody any advice, but all I know is that Calvin Hill is suspended and you two are still here working." Sayers denied that either the Union or the Labor Board was mentioned in the conver- sation. Presumably the theory for the violation here which is not specifically argued in the General Counsel's brief is based upon the admonition against giving employees "advice" coupled with reference to the suspended em- ployee thus suggesting that should the employees contin- ue to give "advice" they too might be suspended. While Hill's testimony on the point was somewhat confusing, I found it believable when compared with Sayers' less than positive recollection of the matter. Moreover, it would be unlikely that Hill and Rucker would voluntarily have initiated a discussion regarding any "advice" they gave to Taylor. Accordingly, I credit Hill. In my opinion Sayers' remarks may fairly and rea- sonably be construed as a threat that, if Hill and Rucker gave employees "advice," they might well be suspended. Whether Sayers was referring to the advice Hill gave to Taylor about going to the Union or advice about Tay- lor's wage claim his comment amounted to interference with employee Section 7 rights. "Advice" concerning the wage claim clearly would constitute protected con- certed activity. I therefore find that Sayers' remark to Hill and Rucker violated Section 8(a)(1) of the Act. 4. The alleged discriminatory warnings and changes in working conditions It is the General Counsel's contention that the Re- spondent reacted to the union organizational campaign by changing the working conditions of employees in a number of respects and by more stringently enforcing its work rules. Initially in this regard, the General Counsel contends that the Respondent on and after March 15 re- stricted its employees to their immediate work areas and required them to have permission for restroom use con- trary to its past practice of allowing its employees to leave their work station without prior supervisory au- thorization for any necessary purpose. There is little dispute, and I find, that at all material times the Respondent had a set of work rules which were posted in its employees' lunchroom and which were designed to be illustrative of the "type of offenses that could be considered for disciplinary action." Includ- ed within that group of rules which were formulated with employee "input," well prior to the beginning of the union campaign, was a rule which prohibited em- ployees from leaving their work areas without contacting their supervisors or other designated individuals. The rule was specifically applicable to the leaving of work areas to use the restrooms or telephones. Notwithstand- ing this rule employees Lula Cunningham, Lonnell Hill, Kay Suggs, and Linda Ross testified for the General Counsel that prior to about the middle of March the Re- spondent had not enforced the rule. According to Ross, when Bennett took over supervision of her department in mid-March he announced to all employees in his depart- ment that there would be some "new" rules, that em- ployees would stay in their work areas, that they could not take food to their work stations, and employees would have to have permission to leave their work areas. Similarly, Suggs testified that Bennett at the employee meeting advised the employees they would have to have permission to go to the restroom. Suggs added that around June 14 Bennett restricted employee use of the restroom even further by limiting visits to the restroom to once a day during worktime. However, that rule was revoked by Bennett shortly thereafter. Bennett was not the only supervisor who was enforc- ing the requirement for permission to use the restroom on worktime, for employee James Thompson testified that Supervisor Brenda Chism told a group of employees during the week following the May 10 election that they had to have her permission before going to the restroom. At the same time Chism told the group that they would no longer be able to smoke "on the back porch" al- though Thompson claimed in his testimomy that employ- ees had been allowed to smoke in the back whenever caught up with their work. Thompson also testified that Chism additionally stated that an employee would have to produce 250 boards or panels a night in her rework section on that shift. Failure to produce the desired amount would result in a warning for the first occasion and a dismissal for the second. According to Thompson, there had been no previous quotas on the number of boards to be done. While Cunningham could not recall the meeting where Bennett made the announcement requiring permission for the restroom, she testified that he told her some time after the union campaign started not to leave her work area without permission. On March 22 Cunningham, who was identified as a union supporter by her wearing of a union button, testified that she was approached by Bennett and told that she had been out of her work area for 30 minutes. She denied she was away 30 minutes but admitted she had been in the personnel office for a short while with the knowledge of Supervisor-Trainee Frank Connelly. Bennett said "Okay," but 30 minutes later ap- proached her again and told her she had been in the res- troom for 20 minutes. She said that was a lie, but Ben- nett told her to go with him to Sayers' office for a warn- ing. In the office Sayers stated she had been spending ex- cessive time in the restroom and too much time away from her work station. He advised her he was giving her a written warning. The next day Sayers gave her a copy of the warning which stated: The sanders & sawline was shutdown due to me- chanical repair. Employee was notice [sic] out of work area & asked to return to her work. Employee returned to work area. However she remained for only a few minutes at which time she left & went to ladies' room. Employee spent excessive time in ladies' room, even though she had been cautioned about the same type of behavior. Also, all employ- ees were informed of remaining at job stations during downtime at employee meeting on March 15, 1979. NVEYFRIIAUAESE CNIPANYN~ 581 Cunningham in her testimony on cross-examination claimed she had only been in the restroom 6 or 7 min- utes. Suggs was verbally warned on May 21 relative to her allegedly excessive absence from her job station on May 19. According to Suggs, whose union sympathy was also indicated to Respondent by her wearing of a union button, she asked permission of Bennett on May 19 to go to the restroom. He told her she could but asked her to stop by his office. She did so and there he accused her of going to the restroom too much and claimed he had it down there that she had gone five times. Suggs called Bennett a liar. He said he would check his record and get back with her. Instead, on May 21, Bennett called her back into his office where he gave her a "verbal warning," which stated: On 5-19-79, Kay Suggs was issued a verbal warning due to her excessive absence from the job station. During discussion Kay was not receptive of what was discussed and was insubordinate. Another employee, James Rogers, received a warning relative to his being away from his job area and taking a smoke break. Rogers, whose union sympathies were known to the Respondent, stated that on March 28 he had finished a load of wood in the rework department and was waiting for the load to be removed. He decided to get a drink and to go outside the building to smoke. Employee Linda Ross who also worked in the area also went out the door to smoke, but only Rogers had lighted his cigarette when Bennett came out and told Rogers and Ross they were not supposed to be smoking out there, that they were supposed to be staying in their areas. While going back to his work station, a distance of about 20 to 30 feet according to Rogers, Bennett told Rogers that he had previously told Rogers to stay at his work station ad he was going to have to give Rogers a warning for not doing so. Later in the day Bennett told Rogers he was going to give him a verbal warning, but still later he called Rogers to Sayers' office where Sayers in Bennett's presence chastised Rogers for "picking at his nails" that morning, not working as directed, and leaning up against the loads. Rogers protested he had never had any problems before and he did not see why they could not go outside the back door and smoke since there was a "butt can" out there. The discussion concluded with Sayers giving Rogers a written warning containing the following language: 1. Employee has been warned previously to stay in job area. 2. Today (3-28-79) employee was outside of bldg. at back door taking a smoke break at unau- thorized time, even though he was told to stay in work area when waiting for setup. 3. Employee was observed several times leaning on load idle and picking at his fingers. These inci- dents all occurred when employee had materials at work station with which to work. 9 Verbal warnings are recorded in the emplo)ecs' personnel file but the record does not clearly indicate whether or not a erhal warning is a first step in the Respondent's disciplinary system Contrary to the claim in the warning note Rogers testi- fied he had not been previously warned about staying in his work area, and, in agreement with the testimony of James Thompson noted above, claimed he had always been allowed to smoke when caught up or when his ma- chine was "down." Roy Brown received a written warning on May 16 from Supervisor Chism concerning an incident that oc- curred the preceding night. The warning which was stip- ulated in evidence read: ° You left your work area last night to go to the bathroom and to smoke a cigarette without contact- ing your supervisor. You're being given this warn- ing as outlined in group 11, number one work rules. [Leaving work area without contacting supervisor.] If this should happen again you will be disciplined according to group II rules. Brown did not deny that he had gone to the restroom or that he had smoked. Futhermore, he made no claim that he had gotten permission before going to the res- troom. With respect to the general allegation that the Re- spondent more stringently enforced its work rules after the union campaign began, the General Counsel relies upon a number of exhibits'' obtained from the Respond- ent's personnel files showing warnings and disciplinary actions given to its employees for whatever reasons during 1979 and preceding years. The Respondent intro- duced in evidence some 16 additional exhibits related to personnel actions and warnings over the same years. 2 For argument purposes the General Counsel restricted comparison of the exhibits to the years 1978 and 1979. His brief, however, did not attempt a breakdown com- parison of the personnel actions and warnings. A detailed analysis of the exhibits of both the General Counsel and the Respondent is difficult because of some duplication of documents and because it is not clear from some of the documents whether the employee conferences with supervisors and the supervisors' notes regarding such conferences were in themselves disciplinary actions or warnings. An analysis tends to substantiate, however, the General Counsel's position that the Respondent issued approximately 25 to 30 percent more employee warnings in 1979 following the beginning of the Union's campaign than it had in the calendar year 1978 and up to the be- ginning of the union campaign in 1979. Based on all of the foregoing evidence, the General Counsel argues that the Respondent violated Section 8(a)(1) by restricting employees to their work areas, in- creasing production quotas, requiring permission of em- ployees to use the restroom, prohibiting employees from smoking when caught up with their work, and generally more stringently enforcing its work rules, all as a result of the union activity of its employees. Furthermore, the warnings given to Brown, Cunningham, Suggs, and Rogers are also alleged by the General Counsel to have been discriminatorily motivated because they were re- n G.C Exh 23 " GC Exhs. 39-110 1 Resp Exhs 21-37 \VEYERIIALESLR COMPANY 58 5X82 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD sponsive to the union campaign and therefore violative of Section 8(a)(3) and (I) of the Act. The Respondent through its witnesses denied that its application of its rules was changed in any way due to the Union's campaign or that the warnings issued to Brown, Cunningham, Suggs, or Rogers were discrimina- torily motivated. Bennett testified that he took over the shipping and receiving and finishing area in early March replacing weaker supervisors. On March 15 he had a meeting with the employees in the finishing department, told them to stay at their work stations, and referred to the work rules. According to Bennett, he did not tell the employees anything new, and he claimed to have always uniformly enforced the Respondent's rules in the areas in which he had worked previously. With respect to the warning issued to Cunningham, Bennett did not substantially dispute the sequence of events as related to Cunningham's testimony but he claimed that he had observed her away from her work station about 30 minutes altogether that day. Further, he claimed he had talked to her about 4 days previously about being away from her work station. On the Suggs' warning Bennett testified he had ob- served Suggs going too frequently to the restroom and called her in and told her he had noted she had gone four or five times in I day. She called him a liar so he issued the warning to her for insubordination. Bennett testified he gave the warning to Rogers when he looked for Rogers in his work area and found him in- stead out the back door smoking when he had work to do. Because Bennett had talked to Rogers before about leaving his work area and because he had also talked to Rogers three or four times previously about standing around picking his fingernails, he decided to give him a warning. Linda Ross, who was present with Rogers when Bennett had found him "out the back door," was not given a warning because he had considered Rogers' offense to be greater since it involved more than just being away from his work area-it included being absent from his station when there was work to do. Ross, ac- cording to Bennett, had not really left her work area. Chism likewise denied that she had failed to enforce the Respondent's work rules prior to the union cam- paign. Further, she denied that she had ever allowed em- ployees to smoke when they were caught up on their jobs. Moreover, she claimed that Bennett had never al- lowed employees to smoke when their machines were "down" in 1978 when Bennett had supervised her. On the other hand, Chism related that employees were al- lowed to smoke in the restroom incidental to the normal use of the restroom so long as too much time was not taken. With respect to the production quotas mentioned by Thompson, Chism testified that there was no change in production quotas in Thompson's section other than that resulting from a switch from an 8-hour shift to a 10-hour shift. According to Chism, the weekly number of panels expected to be produced, 250, remained the same at all times, and was identical for all shifts. In connection with the warning given Brown, Chism testified that Brown had left his work station without permission and without her having obtained a replace- ment for him. He remained gone for more than 20 min- utes and cost Chism 20 minutes' production on his equip- ment, the glue spreader. It immediately affected the work of three employees and had he been gone for 30 minutes more it would have affected the production of three more. In arguing the violation based upon enforcement of the rules the General Counsel relies primarily upon the timing of Bennett's announcement on March 15 to his group regarding the "new" rules. This announcement was only 2 or 3 days after the Union's demand letter and its filing of the representation case petition and after Plant Manager Schommer had had a conference with his supervisors regarding the union campaign in which he admittedly had instructed them to "run their departments in accordance with the plant rules and bring their depart- ments up to acceptable levels" of production and quality. Beside the timing of Bennett's announcement on March 15, support of the General Counsel's position is found in the absence among all the exhibits submitted in evidence by either the General Counsel or the Respond- ent of any warnings to employees simply for being away from their work areas without permission prior to March 15. Since it is claimed that Bennett was a rather strict su- pervisor it seems highly unlikely that he would not have issued at least one previous written warning or verbal warning to an employee for being away from his work station without permission. Yet the record shows no such prior warning by either himself, Brenda Chism, or any other supervisor for such a reason. On the other hand, subsequent to March 15 the Respondent, in addi- tion to warnings issued to Brown, Cunningham, Suggs, and Rogers noted above, issued warnings to, or "wrote up," four other employees for either leaving their work stations without permission or leaving their stations during time when their machines were being set up.': The Respondent, in effect, concedes that it tightened up on employees because it was encountering economic and production difficulties during March, April, and May, which difficulty Schommer in his testimony attrib- uted specifically to employee attitudes during the union campaign. This claim disregards the fact, however, that Bennett's tightening up of the rules began within only a few days after the Union's bargaining request and the filing of the petition which the Respondent claims was its first clear notice of union activity among its employ- ees. Such a quick response could hardly be based upon an observed impact of an organizational campaign on the employees. That Bennett was indeed becoming more strict on em- ployees is shown by the undenied fact that he imposed, although subsequently revoked, the clearly arbitrary re- striction against employee use of the restroom on compa- " Specifically these employees ere Sylvester Hill (written sWarning dated 5-22-79. signed by Supervisor Adrian. Huggins, and Sayers, G C Exh. 102). Lonnell Hill (writeup by Bennett dated 8-14-79. G.C Exh. 99). Leroy Faggett (written warning dated 5 30-79 by Huggins and Sayers. ( C. Exh 371, and Benn, Thomas (verbal warning from Supervi- sor Deena Steward dated I 12/79. G C Exh. 107) One employee had been warned in March 1978 (Ricky Mason, G C Exh 41) about leaving his work area o use the telephone without permission However, it ap- pears that he had iolated a direct order not to leave his work area %V1:)'F:Rl1AUFSFRSE COMPA4NY 5~3 ny time to once each day. The inexplicable imposition of this restriction warrants an inference that it was retali- atory in nature rather than remedial. I am not so naive as to believe that the Respondent was running a "country club" with employees freel leaving their work stations for whatever purpose the) desired at their own discretion. Nevertheless, and not- withstanding its published rule against leaving work sta- tions without supervisory permission, considering the foregoing, and the record as a whole, including the Re- spondent's union animus as revealed in the 8(a)(1) viola- tions previously found herein, as well as its expressed strong opposition to the Union, I am persuaded, and I find, that the Respondent through Bennett and Chism did more strictly enforce its rules against employees for leaving their work areas without permission as a result of the union campaign. M4 Accordingly, I credit that testi- mony of employees Brown, Cunningham, Hill, Suggs, and Ross to the effect that the Respondent more strictly enforced its rules regarding employees leaving their work station. It is clear, and I find, however, that the Respondent did not formulate its rule against employees leaving their work stations as a response to the union campaign. But, by more strictly enforcing its rules, I find that the Respondent interfered with its employees' Sec- tion 7 rights and thereby violated Section 8(a)(1) of the Act. See Pope Maintenance Corporation, 228 NLRB 326 (1977). I also credit the testimony of Thompson and Rogers, supported in this case by Ross whom I found particular- ly credible, that they had previously been allowed to smoke outside the "back door" when "caught up" or when equipment was down. This was, I conclude, a "new" restriction which must be viewed as being related to the more strict enforcement of Respondent's rules generally in response to the union campaign. By impos- ing this restriction on its employees I find that the Re- spondent further violated Section 8(a)(l) of the Act. Since I have concluded that the Respondent unlawful- ly imposed a new restriction on employees smoking when "caught up" or when their machines were down, and since Rogers' March 28 warning was based partly upon this new restriction as well as a broader and more strictly enforced rule about being away from his job area, I find that the warning given Rogers was coercive and violative of Section 8(a)(l) and (3) of the Act. Like- wise, the warnings to Cunningham and Brown were also based in part upon the more strictly enforced rule con- cerning employees leaving their work stations without permission. I find these reprimands also to be coercive and violative of Section 8(a)(l) and (3) of the Act. The warning issued to Suggs stands on a different footing. Suggs' warning was not based upon any new rules or even the enforcement of old rules. 14 In reaching his conclusion I find it unnecesar% to rely on the purely statistical fact that the Respondent issued more sAarnings in the several months after the union campaign started than before The Gener- al Counsel's exhibits relative to the warnings given are inconclusive in my opinion The reciord does nt shos the abhsence of merit of the warn- ings issued or whether the particular rule or policy on Awhich the ,.arnirig was based as not prei oulsy strictly enfiirced Suggs' verbal warning of May 19 was related to her "excessive absence from her job station." While the record hows that Suggs disputed Bennett's claim that she had been to the restroom five times on May 19 it does not show exactly how many times in fact she had been on that date. Even assuming that Bennett was inac- curate in his claim that she had been to the restroom five times, the record is insufficient to establish that Suggs' use of the restroom had not been "excessive." Under these circumstances, and in view of Suggs admittedly calling Bennett a liar, I cannot find that warning given Suggs was so ill-founded as t, x arrant a conclusion that it was pretextual and based uipon unlawful motivation. Moreover, since the warning was not related to a specif- ic rule of the Employer, I do not find that the warning given Suggs was related to a stricter enforcement of its rules generally. Accordingly, I find no violation of Sec- tion 8(a)(1) or (3) of the Act with respect to the warning issued to Suggs. The complaint allegation that the Respondent in- creased production quotas is based solely upon the un- corroborated testimony of employee Thompson that Chism told employees they had to "do" 250 panels a night. Thompson's testimony did not establish, however, that there was any increase in work as a result of the "250 panel" quota. Surely if there had been an imposition of a quota system for the first time the General Counsel would have produced corroborating evidence to estab- lish it. In the absence of any corroboration of Thomp- son's testimony in this regard, and since it does not appear that any actual increase in workload was im- posed, I find Chism's testimony to the effect that the production goals had always remained the same more convincing. Moreover, her explanation that the changes in the goals for each shift was related to the switch from an 8-hour to a 10-hour shift was plausible and not rebut- ted by Thompson or any other General Counsel witness. I therefore find that the record is insufficient to establish a violation of the Act either in the imposition of a quota system or in any increase in production quotas. 5. The installation and use of a timeclock Employee Ross testified that, while the Respondent had utilized an employee timeclock in previous years, it had abandoned the use of a timeclock for about a year prior to March 1979. Thereafter, the Respondent in- stalled a timeclock and required employees to punch in and out and, following the election, imposed the addi- tional requirement that they also punch in and out for lunch. James Thompson corroborated Ross except his testimony indicated that the employees did not start punching a timeclock until the week after the election. The complaint alleges and the General Counsel con- tends that the installation of the timeclock and the re- quirement that the employees punch in and out was but additional steps in the Respondent's "crack down" on its employees because of their union activities. The Respondent's position on the timeclock was relat- ed in the testimony of Plant Manager Schommer. Schommer admitted that the Respondent had installed a new timeclock as a result of trouble encountered in the WEYERIIAtFSFiR COMPAN 583 584 DECISIONS ()1: NATI()NAL LABO()R REI.AII()NS I()ARI) abuse of a system under which the supervisors had kept employee time subsequent to May 1, 1978. Schommer found that a supervisor in collaboration with some of the employees was turning in more worktime for the em- ployees than actually worked. Upon discovering this in December 1978, the supervisor was fired and the em- ployees given warnings."5 Subsequently, in the latter part of the following January, the employees in group meetings with Schommer expressed a desire to return to the use of the timeclock. Based on this expression Schommer in February asked his secretary to get bids for a new timeclock installation. 16 Still according to Schommer, the purchase rder for the clock issued in March and the clock was actually installed on April 24. On April 26 the employees at a meeting called by Schommer were asked if they wanted to use a timeclock. They voted affirmatively to reinstate use of the time- clock. 7 On May 11, following the election, the Re- spondent posted a notice stating, inter alia, that "in ac- cordance with the wishes of the majority of the people in the plant we will resume punching the timeclock on Monday, May 14." Schommer's testimony regarding installation of the ti- meclock and the meetings with employees concerning the installation of the clock was not rebutted by any of the General Counsel's witnesses. I therefore credit it. Because the installation and the required utilization of the timeclock were based upon the desires of the em- ployees initially expressed prior to the union campaign and confirmed in the April vote I cannot conclude that it was responsive to, or related to, the employees' union activities. Since the employees in fact approved the use of the clock by vote, its installation could hardly have been an act of retaliation against them as the General Counsel contends, whether or not they were required to punch in and out during lunchtime. Accordingly, I find no violation of the Act in the Respondent's installation or use of the timeclock. 6. Additional warnings issued to employees The consolidated complaint as amended alleges that the Respondent in keeping with its policy of tightening down on employees in response to the union campaign discriminatorily issued warnings to employees that were unrelated to the work rules already noted above. In this regard it is alleged that the Respondent discriminatorily issued a warning to employee Elbert Smith on March 23. In support of this allegation Smith testified that he had been an active union supporter and had worn a union button from the time the union campaign started until after the election. On March 23 Smith, who operated a ' According to Schommer's unrebutted testimony in this regard, the employees warned included Ross and Thompson t Following discontinuance of its use of a timeclock for clocking em- ployees in and out the Respondent had swapped its old timeclock o an- other warehouse or plant for a clock which was utilized only for its buzzer system and which was incapable of recording employee time. '7 Schommer testified without contradiction that it was not extraordi- nary for the Respondent to allow its employees to vote on such matters. '" I Find that portion of Ross' testimony that employees began to punch the timeclock in March is in clear error The Respondent would have had no reason to post its May 11 notice if the employees were al- ready required to utilize the timeclock. sanding machine, observed Supervisor Bennett talking to Linda Ross at her inspection station and decided to ap- proach the two to see if anything was wrong.t9 As he approached Bennett, Bennett asked Smith what his prob- lem was and if Bennett could help Smith. Smith replied negatively, adding that he had only come down there to see if there was a defect in the boards and whether it was due to his operation of his machine. Bennett replied, in Smith's words, "he didn't like the way I was talking or something, you know." Smith in turn responded that "I didn't like the way he was talking because I was doing what I usually do to see if there was a defect in the board and could I do anything to help it." Bennett told Smith to get back to his work and stated he would talk to him later. An hour later Smith was called to Sayers' office where Sayers told him in Bennett's pres- ence "due to the fact that the union is trying to come in, and we're having a lot of complications with our ma- chinery, everybody seem to be somewhat uneased." Sayers added that he had a warning for Smith but the warning was not any reflection or anything personal be- tween Sayers and himself. Sayers said that it was rather a problem between Bennett and Smith. While Smith testified that he received a written warn- ing he was unable to identify that warning or specifically state the wording of it. 2 0 While Ross was apparently a witness to the encounter between Bennett and Smith, and although called as a witness by the General Counsel, she did not testify concerning that encounter. Bennett, on the other hand, testified that he was dis- cussing a particular defect with some panels that had come from the sander when Smith walked up. Bennett inquired what Smith wanted and Smith said that he was not saying anything to Bennett so Bennett should not say anything to him. At that point Bennett was some 40 feet away from his work station. Bennett related that other words were exchanged, and Smith accused Bennett of "trying to mess with me" and "acting like uncle Tom." Because other employees in the vicinity had stopped working and were looking, Bennett told Smith that they would discuss the matter later. Subsequently, on the same day, he issued a warning to Smith for insubordina- tion. I find the record inadequate to establish the violation alleged on the warning issued to Smith. Smith's testimo- ny is too vague to establish the absence of a basis for is- suing the warning to Smith for insubordination. The record does not establish that the warning was related to the violation of any specific rule or to a "crack down" generally. Rather, it appears, as Sayers' comment reflect- ed, a personal matter between Bennett and Smith. In any event Smith was an improbable target for discrimination for his only union activity was the wearing of a union button which served to distinguish him very little from a number of other employees who also were union buttons in the plant. ' Ross inspected boards run through Smith's machine and he testified that he occasionally went down there to ensure that there were no prob- lems with his production. 2<) Neither the warning note itself nor the language of it was put in evidence by either the General Counsel or the Respondent WFYFRHAUESER CMPANY 585 The consolidated complaint as amended at the hearing alleged that Ross was issued an unlawful verbal warning on May 22. The warning was based upon an inspection of panels which Ross as an inspector had admittedly passed and which contained 35 off-grade panels out of a total of 49. It was Ross' testimony however that on May 17 Bennett, in the presence of Supervisor-Trainee Frank Connelly, instructed Ross to pass some of the panels that were not up to specification because work had been "piling up." Ross stated that she would do as instructed notwithstanding the fact that she did not have Bennett's signature on any instructions in this regard. Subsequent- ly, on May 22 she was called to Bennett's office. On the way to Bennett's office Connelly advised her that the problem was regarding a load of wood that Brenda Chism had inspected and which Ross had earlier passed. Connelly further told Ross that Bennett did not want to call her in but he had no choice because Sayers had told him earlier to issue a warning to Ross although Bennett had kept putting it off.2' In Bennett's office Bennett advised Ross that he was going to give her a warning for some panels that Chism had gone through. Bennett allowed Ross to look at the inspection sheet Chism had used. Ross ascertained from it that it was based on the material that Bennett had ear- lier told Ross to pass. Ross protested that it was the load that Bennett told her to pass and he replied, "Well I have to give you this warning." In the conversation Ben- nett did not deny that he had given Ross instructions to pass the material but refused to tell Sayers that it had been done pursuant to his instructions. Moreover, ac- cording to Ross, Bennett told Ross that he did not know what Chism was trying to do, that he knew this was all "political," that it was playing with people's jobs, and that he really did not go along with it. Nevertheless, he still refused to tell Sayers Ross had passed the material with his instructions. However, he did tell Ross that he would advise Sayers that the material that Ross passed was "marginal." Bennett in his testimony denied he had instructed Ross to pass all the panels in dispute. Rather, according to Bennett, he had told Ross to allow only I or 2 defective panels in a load of 40. He did not, however, specifically contradict the other comments attributed to him by Ross during the time that he issued the warning to her. I credit Ross' testimony where it contradicts Bennett regarding this warning. I conclude, based on Ross' testi- mony, that the verbal warning issued to her was com- pletely without foundation in view of Bennett's instruc- tions to her. Considering issuance of the warning in light of Ross' known union support and sympathies and the Respondent's admitted and vigorous opposition to the Union as demonstrated by its unlawful actions already found above, I can only conclude that the warning issued to Ross was pretextual in nature and designed to cloak an unlawful discriminatory motive; i.e., Ross' union support. Schommer's earlier warning to Ross that he did not believe that Ross would be able to endure the union campaign, coupled with Bennett's undenied refer- '' Connell'\s remarks. thicle hea;lra, crc reccied in idencle itl- out objection Hls staltus l a sulpcrr r iand ;genlt of the mplo ) r \; a not litigated at the hearing ence to the warning being "political." makes extremely clear the discrimination against Ross. Accordingly, I conclude that the Respondent violated Section 8(a)( I) and (3) of the Act in issuing the verbal warning to Ross. 7. The warning to, and suspension of, James Rogers There is little dispute concerning the warning issued to James Rogers on April 5 and the suspension of Rogers on April 6 for I day as a result thereof, both of which actions are alleged by the General Counsel to constitute violations of Section 8(a)(l) and (3) of the Act. Rogers, as has already been noted, was a union supporter whose union support was reflected by his wearing of a union button. On April 5 Rogers at the conclusion of the after- noon employee break was having difficulty securing the merchandise or the return of his money from a soup vending machine. With the help of another employee he was able to get his money back but then, although after the conclusion of breaktime, he reinserted it, obtained the merchandise, and ran back to his work station past the office of Sayers. Sayers came out to observe Rogers return to his work station and watched him consume the food he had obtained. Later that afternoon Rogers was called in Sayers' office where, in the presence of Ben- nett, Sayers asked Rogers why he had food at his work station. Rogers replied that he had not had any problem with having food at his work station before. Sayers asked him why he was late going back after his break and Rogers answered he was only 2 or 3 minutes late and he had never had any problem before being a few minutes late. Nevertheless, Rogers was issued a warning for violation of the Respondent's rules having to do with "neglect of duty" and failing to "work as directed," and was suspended for I day. He was returned to work on April 9 with an admonition from Schommer to "stay out of trouble." Rogers testified that he had not previously heard of employees having received warnings for eating at their work stations. However, on cross-examination he con- ceded that Sayers had told him at the time of the issu- ance of the warning that another employee had been sus- pended for eating on company time. Rogers testified he had previously, with the knowledge of unnamed supervi- sors, eaten from his sack lunch at his work station during worktime. Further, he claimed that the week following his suspension he had seen Bennett eating in the work area. He did not specify, however, whether Bennett was eating on worktime nor did he identify the specific loca- tion where Bennett was observed. 22 Sayers' testimony and the contents of Rogers' written warning itself2` are generally consistent with Rogers' version of what happened. However, the warning indi- cated that Rogers was 5 minutes late returning from break as checked against the timeclock by Sayers. The General Counsel argues that the warning and sus- pension issued to Rogers was but another incident of the Respondent's "crack down" on enforcement of its em- ployee rules. The Respondent on the contrary contends :' B23einnet i tets Iit II delit.' d ilrg in ;lten in the s% ork arca dilriIg t orkinie 2 ((' tixI 1(I WFYFRHAUESER COMPANY 5?5 586 I) tISIONS ()F NATI()NAI. LAB()OR RELATI)NS BO()ARI) that its action with respect to Rogers was consistent with its earlier warning and suspension given to employee Robert Warren long prior to the union campaign. An examination of the warning issued to Warren on July 14, 1978,24 reveals that more than an employee's eating at his work station was involved. In brief, Warren was eating and refused to stop and go to work as direct- ed by his supervisor. Nevertheless, the incident with Warren does tend to substantiate a concern by the Re- spondent about eating in work areas during worktime. Moreover, Rogers' warning like Warren's involved more than eating at his work station on worktime. The warn- ing was precipitated in part by Rogers' obviously delib- erate late return to work following the break occasioned by his decision to proceed with his snack even after the conclusion of the break and after he had already secured the return of his money from the vending machine. I find unconvincing as too broad an exaggeration that portion of Rogers' testimony, uncorroborated in this regard, that "we always, you know, be late a few minutes" returning to work stations after breaks. Under these circumstances, I am not persuaded that the evidence supports a conclu- sion that the warning and suspension issued to Rogers in this instance was related to any "crack down" on em- ployees as a result of the union campaign although I have previously found that there was in fact a "crack down" in certain respects. Such a "crack down" does not require a conclusion that every warning issued subse- quent to the crackdown was responsive to the union campaign. Indeed, the General Counsel's numerous ex- hibits tend to establish that the Respondent issued a sub- stantial number of warnings long prior to the union cam- paign and kept rather extensive notes on the misconduct of its employees. In respect to Rogers' warning and sus- pension, however, the evidence in my opinion does not establish that he would not have been warned and sus- pended but for the Union's campaign or his involvement in it. I therefore find no violation of Section 8(a)(1) and (3) with respect to Rogers' warning and suspension. 8. The suspension of Curtis Golden Curtis Golden had been employed by the Respondent for over 3 years and worked as a forklift driver. His union sympathies were revealed by his wearing of a union button in the plant beginning about a month after the campaign started. Golden testified that, on June 8, while eating his lunch with other employees including Fred Govain, Richard Brown, and Richard Brooks, he had remarked to Govain in reference to certain trips Govain had made to the restroom and to the Respond- ent's office that if Govain went down there to "tell around on me" he was going to try to break Govain's back. According to Golden, he made the remark in a joking manner and Govain laughed about the remark as did everybody else present. Apparently, however, Govain upon reflection did not take the matter lightly and complained to Bennett fol- lowing lunch. Bennett reported the matter to Sayers and Golden was called in Sayers' office where he was ad- vised that Govain had claimed he had threatened him '2 Rc'p Ixh I h and was very upset about what had happened. Sayers asked Golden some questions but ultimately told Golden that he could not really talk to him because Plant Man- ager Schommer was out of town and he directed Golden to go on home and they would call him the following Monday. However, when Golden contacted the Compa- ny on Monday, he was told that Govain had not re- turned to work and there had been no opportunity to talk to him and therefore Golden should come in the next morning. When Golden went in the next morning he waited until Govain had been interviewed by Schom- mer and then he talked to Schommer. After talking to Schommer explaining that he had been joking with Govain, Schommer put him back to work with the ad- monition to "be real careful about what I'm doing out there, and if I could, don't go around Fred at all--don't even go in the area." Schommer added, according to Golden, that "a lot peoples around here are taking horse- play serious, and for me to be more alert and be careful." Schommer's testimony regarding the suspension of Golden did not differ significantly from Golden's. Schommer related that he had been out of the city on June 8 and found Golden's file on his desk when he had returned the following Monday. Schommer said he talked to Golden on that Monday when he came in and Golden had explained although he had made a remark to Govain about "busting his head" it was a joking matter. However, because Govain had not come to work that Monday Schommer sent Golden home so that he could have an opportunity to interview Govain and certain other witnesses identified by Golden. Schommer did in- terview the other witnesses and they in effect confirmed that Golden's remarks to Govain had not been serious and that it was a kind of "horseplay" that they some- times engaged in. Interviewing Govain on the following morning Govain had still expressed concern that Golden might "come up behind him" at work. Schommer sent Govain back to work and talked to Golden, telling him that Govain was concerned but that the employees who wvitnessed the matter indicated that it was "horseplay" and therefore he was returning Golden to work. Howev- er, he told Golden that because of the incident, should anything happen to Govain, Golden was in a precarious position of being a prime suspect. It was Schommer's recollection that Golden was paid for the day of work he had missed on June II because Schommer had been unable to interview Govain through no fault of Golden. While Govain did not testify, in view of Golden's ad- mission that he had made threatening remarks to Govain there is little to support the contention that the Respond- ent's actions with respect to Golden were taken unlaw- fully. It would not be totally unreasonable for Govain, who was 65 years old compared to Golden's age of 31, to be apprehensive about Golden's remark even though it might have been delivered in a joking matter. And. there was no evidence that the Respondent solicited any complaints from Govain in this regard. Once the com- plaint was made by Govain it was clearly prudent for Schommer to investigate the matter And the action taken following the investigation w\as clearly reasonable. WFYFRHAUH~ FSFR COMPANY The General Counsel appears to attach a sinister sig- nificance to the fact that Govain was not punished for his involvement in this matter. However, that ignores the fact that no specific misconduct was attributed to Govain. Considering the foregoing, and the record as a whole, I find that the General Counsel has not established by a preponderance of evidence that the Respondent in any way violated the Act in the suspension of Golden.2' 9. The suspensions of Brown, Miller, Stevenson, and Hill Roy Miller, Roy Lee Brown. and l.avcrne Stevenson were employed by the Respondent on its second shift. Plant Manager Schommer acknowledged in his testimo- ny that Miller and Brown were, to his knowledge, union supporters. The record does not establish, however, that Stevenson, who did not testify, was also a union adher- ent. In any event, all three employees worked together on the glue spreader with Miller pushing the plywood cores through the spreader where a glue is placed on the core with the other two employees catching the finished panel as it came out of the spreader and applying a plywood veneer. On May 17 when he reported to work Miller was called into Plant Manager Schommer's office where Schommer showed him a picture of a piece of plywood with a steel packing band extruding through the veneer of the panel. Schommer told Miller that the panel had been run on the second shift and so either he, Brown, or Stevenson had to have done it. Miller testified on cross- examination that the steel band could only have been placed in the board intentionally and could not have been done without the knowledge of all three operators. He told Schommer at the time that he did not put the band in the panel and he did not see the other two men put it in. Schommer then sent Miller back to work but subsequently recalled him and asked him to sign a paper stating that either Stevenson or Brown had put the strap in the panel. Miller refused to do so. Schommer then told him he would have to do Miller like he had done Brown and Stevenson and send him home, adding that he would have to look into the matter further because somebody would have to be discharged for it. Schommer directed Miller to return to work the following Tuesday, May 22. When Miller returned to work he talked to Schommer who told him that some day-shift employees had told Schommer that they had observed the panel with the steel band in it on the day shift at the time when the panel was "hot," indicating that the panel had just been run on the day shift. Schommer then directed Miller to return to work. 2 6 2S While not specifically alleged in the complaint the General Counsel introduced in evidence arnings issued to Golden after the union elec- lion. G C Exhs 14 19, and one prior to the union campaign. (i C Exh 13. to ho,A "disparit generally" in the Respondent's enforcemenl f its policies against union adherents Yet the merits of these wvarnings were neither litigated nor were they argued in the General Counsel's brief Ac- cordingly. I make no findings thereon 26 rosn was suspended at the same time Miller as Although called as a itnesses bh the General ('ounsel he did not estiff regarding the Schommer's testimony was substantially in accord with that of Miller regarding this incident. Schommer testified that the panel had been discovered by the qual- ity control supervisor, Deena Steward, who brought it to Schommer's attention. The steel band in the plywood panel represented a significant danger during some of the steps in the production process such as sanding and sawing. From production records, according to Schom- mer, and the production ticket that accompanies each load of panels worked it was ascertained that the panel with the steel hand in it had been produced on the second shift. Schommer thereafter took the matter up with the three second-shift employees, Miller, Stevenson, and Brown. and they each denied any knowledge of. or involvement in, production of the faulty panel. Schom- mer therefore suspended them until he investigated the situation further. He thereafter talked to the day-shift crew and they also denied involvement. However, after the suspensions, following further investigation Schom- mer concluded that there was a remote possibility that production tickets could have been switched. Moreover. he was advised that Sylvester Hill on the day shift. a glue spreader, might have done it intentionally to get at Laverne Stevenson due to some animosity that existed between them. 2 ' Accordingly, Schommer returned the three night-shift employees to work and there were no discharges. Sylvester Hill was a day-shift employee on the glue spreader. He testified for the General Counsel that he also was called in with the other glue spreaders on the day shift and individually questioned about the band in the panel. When he was interviewed by Sayers and Schommer, Sayers related that they had a witness that said that Hill had pressed the band into the board. Hill denied it and words were exchanged with Sayers using some curse words, according to Hill. Hill testified that he "got carried away" and "wanted to give some of my part" but was told to shut up or "carry your God-damn ass home." Nevertheless, Hill kept talking. As he ex- plained on cross-examination, he kept talking "to show him I was a man." He was told to shut up and get out and get off the premises and even escorted off the prem- ises. Hill was thereafter suspended for a period until May 29 when he was reinstated. Schommer in his testimony did not specifically contra- dict Hill's testimony in any respect. According to Schommer the conversation with Hill took place on May 25 in his continuing investigation of the plywood panel with a steel band in it. Hill began to talk and just would not be quiet and listen when directed to do so. He was thereupon sent home, missing the remainder of that workday and the holiday pay the following Monday. He was returned to work on May 29. What is clear from all of the foregoing, including the testimony of the General Counsel's witnesses, is that a plywood panel had been sabotaged with a steel band. The witnesses agree that the presence of the steel band suspension een though the sulsper llilon l a alleged to hace been dlscrinil- natory ': Hill and Stevenson 'ere later discharged in erls ()ctober a a result of a fight on company premises in hich Hill was stabbed 5 s7 588 DECISIONS ()F NATIONAL L.ABOR RELATIONS O()ARD in the board could not have been accidental. Because of the hazard to equipment and personnel had the panel been processed further with the steel band unnoticed, the insertion of the band in the board must be regarded as an extremely serious matter. The Respondent's investigation of the matter was clearly warranted. Because of early in- dications that the panel had been manufactured on the second shift and since it is unlikely it could have been manufactured without all the spreader operators on the second shift knowing about it, it was not illogical to sus- pend them pending further investigations. Since the Re- spondent was unable to ascertain which individual was responsible for the damaged panel I can see no basis for concluding that the suspensions were in any way pretex- tual notwithstanding the fact that at least two of the three people suspended were union supporters. In view of the seriousness of the matter, and if the Respondent had been discriminatorily motivated, it is more likely that it would have discharged the three rather than simply suspending them. Moreover, if the matter of the steel band was simply a ruse to suspend the three second-shift employees it is improbable that the Respondent would have continued the investigation following their return to work, although it is quite clear it did in interviewing Hill on May 25. Accordingly, I conclude that the Re- spondent was not discriminatorily motivated in suspend- ing Miller, Brown, and Stevenson in violation of Section 8(a)(1) and (3) of the Act. With respect to Hill's suspension, Hill's admission that he kept talking in order to "show he was a man" in the face of demands that he "shut up" essentially destroys any basis or finding that the suspension was pretextual and discriminatorily motivated. Here too had the Re- spondent been discriminatorily motivated it would have been more likely Hill would have been discharged rather than suspended. Under the circumstances, Hill's suspen- sion of 1 day and a portion of another appears to have been a rather restrained response on the Respondent's part to Hill's May 25 conduct. Accordingly, I conclude that the suspension of Hill did not constitute a violation of Section 8(a)(l) of the Act. 10. The discharge of James Thompson James Thompson was employed by the Respondent for a period of approximately 7 years prior to his dis- charge on May 29 following an indefinite suspension be- ginning May 21 growing out of his allegedly reporting for work on May 19 and working while under the influ- ence of alcohol. At the time of his discharge he was em- ployed in the rework department under Supervisor Brenda Chism. The fact that Thompson had supported the Union and had worn a union button in the plant has already been noted above. Thompson testified that after leaving work at midnight on May 18 he attended a graduation party for his daugh- ter at a cafe. He had one alcoholic drink and left to go home around 3 a.m. The following morning he arose at 9 a.m. and went back to clean up the cafe and in gathering up the beer bottles and whiskey bottles carrying them out in a garbage can he spilled "a great deal of alcohol on my clothes." He finished his work at the cafe at 11:30 a.m. but reported for work at the Respondent's plant 30 minutes late for the noon shift on May 19. He reported to Chism that he was late and then proceeded to his work station where he worked running the side cut saw. After he had worked 30 minutes he injured his hand in a "stacker" and reported his injury to Chism who put rub- bing alcohol on it and he returned to work. Shortly thereafter Chism and Maintenance Supervisor Jim Strat- ton came out and watched him work for 10 to 15 min- utes. Stratton then approached him and told him that he was going to have to leave the premises because he was not steady enough on his feet to work. Thompson was sent home and told to return on Monday to see Schom- mer. When Thompson came to the plant on May 21 he was told by Schommer that he had "been drinking on the job and he was going to have to give me a 5-day layoff." On May 29 Thompson was called to the Re- spondent's plant and told by Schommer that he had in- vestigated Thompson's case and had found from a "couple of employees" that Thompson was drunk on the job and he had to dismiss him. Schommer's testimony was that. when he first inter- viewed Thompson on May 21, Thompson had admitted that he had consumed alcoholic beverages excessively the preceding Saturday morning, had overslept, and had come in late. Schommer said he indefinitely suspended Thompson and thereafter conducted an investigation of the matter speaking to a number of employees and Su- pervisors Stratton and Chism. He concluded that Thompson indeed had been under the influence of alco- hol while at work the preceding Saturday. On May 29 he called Thompson back to the plant and on that occa- sion allowed Thompson to again explain the circum- stances. On this occasion Thompson related a story more in line with that related at the hearing herein. In view of what he perceived to be conflicting stories from Thomp- son, and because of the statements from other employees indicating that Thompson had been working under the influence of alcohol on May 19, Schommer discharged Thompson. '8 Both Chism and Stratton testified that after they had watched Thompson on May 19 following his hand injury they had concluded that he was not fully able to handle his job. According to Stratton, Thompson was so intoxi- cated he hardly knew where he was. I find basically incredible Thompson's testimony re- garding the extent of his drinking on May 19 and the state of his sobriety at the time he undertook his work schedule on that date. The fact that he hurt his hand for the first time in machinery which he had operated for several years tends to support the conclusion that he was not in complete control of his normal reflexes on that date. Moreover, I find Stratton to be a credible and con- vincing witness regarding Thompson's condition. Strat- ton, a former sheriffs deputy, testified he had 4 years' experience in recognizing and arresting a substantial number of persons in various stages of inebriation. Ac- cordingly, I find that a sound basis existed for conclud- GC t'xh. 103 hich cnlltinl excerplt, from l hollp.orln persrnnel file illCILdcd staemlc nt, frorml threc cphnplor cc' dalcd Ma-., 22. 1979. ub- stilllilating a conclusiorl on hce Rpolndcllnt' part hal I honlpsonll wa in fact inebriated at work on Ma Il 0 %VFNT1Rl-lALJFSFR COMPANYN~ 589 ing that Thompson 'was under the influence of intoxi- cants, and, as a result. his being sent home was an act of wise discretion, as was the subsequent decision to sus- pend him pending an investigation. While the General Counsel does not specifically argue, and the complaint does not allege, Thompson's suspen- sion to have been discriminatorily motivated, he never- theless contends that Thompson's May 29 discharge ,was motivated by union considerations as reflected by alleged disparate treatment accorded by the Respondent to Thompson in comparison to other employees in similar situations. Thus, the General Counsel points to the case of two employees gleaned from the Respondent's records who were warned at least once for reporting to work "under the influence" without being discharged.29 However. Schommer in his testimony credibly explained that these warnings occurred prior to May 1, 1978, when the Re- spondent stiffened its rules to make reporting for work under the influence a dischargeable offense on the first occasion. There were two incidents of employees receiving warnings for reporting to work under the influence of al- cohol without being discharged after the Respondent's rules had been stiffened. One, according to Schommer's uncontradicted testimony, involved an employee who, having been given prior permission to be away from work, had nevertheless shown up at the plant "under the influence." The employee, who was not scheduled to work, was given a warning.3 Another employee had re- ported for work apparently under the influence of intoxi- cants but had been retained by a supervisor in the lunch- room and kept under observation for an hour and a half. He was then warned and sent home without ever having reported to his work station. 3' Moreover, Schommer testified that there was a real question with respect to whether or not the employee had actually been "under the influence." The General Counsel also finds evidence of disparate treatment of Thompson in the treatment of Roy Miller who on June 22, subsequent to Thompson's discharge, was simply given a warning for reporting to work after having consumed alcoholic beverages. 32 This overlooks the distinction, however, that Miller was not alleged to have been "under the influence." Schommer conceded that he had some discretion in the Respondent's rules in determining whether or not to discharge a first offender for reporting to work under the influence of intoxicants. However, he added that he viewed an employee's actual assumption of work while inebriated, as in Thompson's case, as a more serious of- fense for obvious safety reasons than simply reporting to the plant inebriated or after having had a "couple of beers." The record does not contradict Schommer's posi- tion in this regard, since there is no evidence that any other employee, following the stiffening of Respondent's rules with respect to working under the influence, at- 2 G.C Exh, 2t, and 27 an G.C Eh 2S : GC Eh 25 :2 G.C Eh 31 tempted to work or assumed their work in an inebriated condition and was not discharged. On the other hand, and consistent with the Respond- ent's position, another employee, Leonard Fletcher, was discharged on June 16 under circumstances very similar to Thompson's. :' Fletcher had been employed by the Respondent for more than 3 years. Considering the foregoing evidence and the record as a whole, I am not persuaded that the evidence establishes disparate treatment of Thompson. Although Schommer used discretion to effectuate the discharge, the total cir- cumstances do not reflect that that discretion was uti- lized discriminatorily. That discretion was exercised in the same manner in Fletcher's discharge and there is no evidence, nor was there any argument, that Fletcher was discharged only in order to maintain the appearance of legality in Thompson's discharge. Moreover, even assum- ing some disparity in connection with Thompson's dis- charge, there is no evidence that would connect that dis- charge with his union activity which was in fact mini- mal. Had the Respondent been inclined to discharge Thompson because of his union sympathies it is not likely that Schommer would have gone through the trouble of interviewing employees regarding Thompson's intoxication rather than simply relying upon the conclu- sions of Supervisors Chism and Stratton. Accordingly, I conclude that the Respondent did not violate Section 8(a)(1) and (3) of the Act in the discharge of Thompson. CONCI USIONS OF LAW 1. The Respondent, Weyerhaeuser Company, is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Highway and Local Motor Freight Employees. Local 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating its employees, by im- pliedly threatening its employees with discharge because of their union activities, by soliciting from employees grievances under circumstances implying the grievances would be rectified, by implying to employees that their selection of a union to represent them would be futile, by requesting employees to campaign among other employ- ees against the Union, by suggesting or encouraging em- ployees to form or serve on a committee or a group to discuss grievances with management as an alternative to having a union represent them, by admonishing employ- ees not to give other employees advice concerning union or protected concerted activities, and by more stringent- ly enforcing its work rules in response to the Union's campaign the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guar- anteed in Section 7 of the Act in violation of Section 8(a)(l) of the Act. 4. By changing its work practices and by issuing warn- ings to Linda Ross on May 22, to James Rogers on March 28, to Lula Cunningham on March 22, and to :':' C E h 32. Rsp Exh 6 WEYFRIIALIESR COMPANY 58g 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roy Brown on May 16 in connection with its more strin- gent enforcement of its rules in response to the Union's campaign the Respondent violated Section 8(a)(3) and (1) of the Act. 5. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not violate Section 8(a)(l) and (3) of the Act in the suspensions of James Rogers, Roy Lee Brown, Roy Miller, Laverne Stevenson, Sylvester Hill, and Curtis Golden or in the discharge of James Thompson, nor did it violate the Act in warnings issued to Kay Suggs or Elbert Smith. 7. The General Counsel has not established by prepon- derance of evidence that the Respondent has violated the Act as alleged in the complaint except to the extent found above. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action necessary to remedy the unfair labor practices and to effectuate the policies of the Act to include the usual posting of appropriate notices to the employees. Since I have found that the warnings issued to Linda Ross, James Rogers, Lula Cunningham, and Roy Brown were a result of changes in work practices or more strict en- forcement of certain of its rules in retaliation to the em- ployees' union activities, I shall recommend that the Re- spondent revoke and rescind such warnings and physical- ly expunge them from their personnel records. 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: ORDER3 4 The Respondent, Weyerhaeuser Company, West Mem- phis, Arkansas, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Coercively interrogating its employees about their union sympathies and desires. (b) Impliedly threatening its employees with discharge for engaging in union activities. (c) Soliciting from individual employees grievances and impliedly promising to rectify them in order to dis- courage their union activity. (d) Implying to employees that their selection of a union would be futile. 34 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (e) Requesting employees to campaign against the Union among other employees. (f) Suggesting to and encouraging employees to form or serve on a committee or group to discuss grievances with management as an alternative to having a union represent them. (g) More stringently enforcing its rules against em- ployees or changing work practices in order to discour- age their union activities. (h) Admonishing its employees not to give each other advice regarding the Union or protected concerted activ- ities. (i) Issuing verbal and written warnings to its employ- ees in connection with a more strict application of its rules in response to the union activities of its employees. (j) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist Highway and Local Motor Freight Employees, Local 667, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization, to bargain collec- tively through representatives of their own choosing; and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which will ef- fectuate the purposes of the Act: (a) Revoke and rescind the warnings issued to Linda Ross, James Rogers, Lula Mae Cunningham, and Roy Lee Brown and physically expunge from their respective personnel files any record of such warnings. (b) Post at its West Memphis, Arkansas, plant copies of the attached notice marked "Appendix." 3 s Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by a representa- tive of the Respondent, shall be posted by the Respond- ent immediately upon receipt thereof, and shall be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found. 35 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the ords in the notice reading "Posted by Order of the National L.abor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."