NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
DTR Industries, Inc. and International Union, United Automobile, Aerospace and
Agricultural Implement Workers of
September 7, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On April 9, 2004, Administrative Law Judge John H. West issued the attached decision. The Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended order only to the extent consistent with this Decision and Order.2
The judge found, and we agree, that during the course of a union organizing campaign, the Respondent violated Section 8(a)(1) by creating the impression that an employee’s union activities were under surveillance, threatening an employee with discipline if he continued to engage in activities in support of the Union, disparately enforcing its uniform policy against a prounion employee,3 and, as further explained below, threatening employees with layoff and job loss if they selected the Union as their bargaining representative. The judge also found that the Respondent violated Section 8(a)(3) and (1) by suspending, discharging, resuspending, and failing properly to reinstate John Callahan and by discharging Daniel Gahman. For the reasons explained below, we reverse the judge and dismiss the 8(a)(3) and (1) allegations as to both Callahan and Gahman.
Background
The Respondent manufactures hose assemblies and other
parts for several automobile companies.
Following the
Threats of Job Loss and Layoffs
In August 2002,7
following the
The Respondent argues that the judge failed to consider controlling Sixth Circuit precedent—including the case involving the Respondent referred to above—and that, if properly analyzed, King’s remarks are protected by Section 8(c) of the Act and lawful. We reject the Respondent’s contention. The judge considered the Sixth Circuit decision, and determined that the employees’ accounts of King’s statements were distinguishable from those the court had found protected. We agree with the judge’s finding that the Respondent threatened employees with job loss in violation of Section 8(a)(1).
In DTR Industries v. NLRB, supra, the Sixth Circuit, inter alia, reversed the Board’s finding that in a pre-election letter to employees, the Respondent’s then-president, Yuji Kobayashi, unlawfully threatened plant closure. Reviewing the 4-page letter, the court determined that Kobayashi provided an objective context and explained the reasons why he believed customers who had been using the Respondent as their sole source for parts “were likely to split their business in order to have an alternative supply source in the event of a strike.”12 The court reasoned that because the letter explained that Kobayashi’s perspective was based upon his industry experience and knowledge of the Respondent’s customer base, he was entitled to make those statements. The court held that once an employer provides such rationale, the violation can be found only if it is shown that the prediction falls outside Section 8(c) as either not objective in nature or untruthful.13 Absent evidence that the statements in the letter were subjective or false, the court concluded that no violation of the Act had occurred.
In this case, by contrast, the statements provided no
objectively-based rationale. Employee
Rita McVetta testified that King said that if the
Discipline/Discharge of John Callahan
Callahan had worked for the Respondent since 1996. He was assigned to the first shift assembling fuel feed hose assemblies.18 In July 2002, he became active in the Union’s organizing campaign, attending meetings, passing out leaflets, signing an authorization card, and soliciting others to sign cards.
On August 26,19 Group Leader/First Level Supervisor Desmond Williams assigned Callahan to line 3, instead of line 2 where he had usually worked. Both lines, however, were equipped with the same machinery, and were set up as mirror images of each other. There is no evidence that Callahan had any problems producing acceptable parts on August 26.
Early in the day on August 27, as Callahan continued working on line 3, inspector Janet Schroeder reported to Williams that defective, unusable hoses were coming from Callahan’s line.20 Williams counseled Callahan to place the parts at a different angle, but soon thereafter Williams discovered that bad parts were still being produced on line 3. After Williams spoke to Callahan again, no faulty hoses were produced during the remainder of the shift. Before the matter was corrected, however, Callahan had produced 137 defective hoses due to misalignment of the parts. Neither of the line 3 employees on the shift before or after Callahan’s produced defective parts.
The next day, Callahan was again assigned to line 3. Williams soon discovered that hoses with even worse angle errors than those of the previous day were coming from Callahan’s line. Williams testified that the severity of the defect caused him to think that the problem might not be merely that Callahan was placing the hose on the bar incorrectly, but rather that he might be acting intentionally to twist the angle of the hose. As he had done the day before, Williams again spoke with Callahan, showed him how to place the part properly on the bar, and personally completed the assembly of two hoses.21 Approximately 90 minutes later, the inspector informed Williams that he was continuing to get parts with extremely bad angles, with the notable exception of the two hoses bearing the marks showing they were Williams’ work.
Williams went to Callahan, who told Williams that his machine was not working properly. Thereafter, machinery repair person Dan Staley and production engineer Doug Caldwell conducted a thorough check of the equipment, found no malfunction, and made no modification to the machine. They concluded that the angle at which Callahan was positioning the hoses on the bar was causing the problem. Just as Williams had already done that day and the day before, they instructed Callahan to set the hose at a different angle. Making the adjustment, Callahan ran the assembly for the remainder of his shift without producing any more defective parts. By the time the second day’s problem was corrected, Callahan was responsible for approximately 350 additional bad parts, nearly 500 in all, at a cost of about $6000. Callahan experienced no production problems the next day, August 29.
Williams notified his supervisor, Rick Huffer, who, in turn, told King and others in management about Callahan’s production difficulties. Toward the end of his shift on August 29, Callahan was called to meet with Williams, Huffer, and King to discuss his production errors. Callahan heatedly denied the suggestion that he had purposely ruined the parts. King said they would continue to investigate. The next morning, Williams called Callahan to the office where Huffer and King again were present. King told him they did not need his type running the machinery anymore, to turn in his timecard, and that he would hear further by mail. On September 6, Callahan received a letter stating he had been on a nonpaid suspension since August 30, and was now terminated. No basis for the discharge was cited.
Callahan requested a “peer review” of his termination, and the Respondent scheduled it for September 17.22 Williams prepared a factual summary of events, King acted as facilitator, and a human resource specialist presented the Respondent’s case that Callahan had deliberately made defective hoses. Callahan denied the accusation, indicating he followed Staley’s direction and corrected the problem, and pointed to his history of cooperation by responding to the Respondent’s request to assist with a special production need during his vacation the prior July. The panel overturned Callahan’s discharge by a 3:2 vote.
The Respondent did not immediately reinstate Callahan.23 By letter dated September 17, the Respondent advised Callahan he was being suspended from September 18 through January 3, 2003, “due to your conduct during August 27 and 28, 2002 when you destroyed critical safety parts supplied to our customers.” The letter stated further that prior to January 6, 2003, he would be instructed where and to whom to report. When he returned, Callahan was assigned to the mixing department, without bidding rights for other jobs, at the same pay he had received previously, and after a few weeks training, was placed on the second shift. King testified he placed Callahan in that position because he believed he had intentionally run bad parts and would be less likely to cause damage in mixing than in an assembly job.24 As of the time of the hearing, the machine on which Callahan made bad parts still had not malfunctioned or been modified.
The judge criticized the Respondent’s reliance entirely on supervisors’ testimony about the defective hoses, and observed that testimony from an inspector or others who saw the final product would have been valuable. He also criticized the Respondent’s failure to place in evidence any of the actual flawed parts, given that the Respondent cited the severity of their defects in concluding that Callahan acted deliberately.25 Crediting Callahan’s testimony that King told him, “we don’t need your type running the machinery here anymore,” the judge concluded that the Respondent had already decided to terminate him, even before completing its investigation. Discrediting aspects of both Williams’ and King’s testimony and finding evidence of animus through the Respondent’s other unlawful conduct, the judge determined that the Respondent unlawfully suspended, discharged, re-suspended, and then failed properly to reinstate Callahan to his former position because of his support for and activities on behalf of the Union.
The Respondent, inter alia, challenges the judge’s failure properly to consider the seriousness of Callahan’s extensive production errors. We find merit in the Respondent’s position.
For purposes of this analysis, we will assume that the
General Counsel has carried his initial Wright
Line26 burden of showing that the
Respondent’s disciplinary treatment of Callahan was unlawfully motivated.27
The burden then shifts to the Respondent to establish it would have
taken the same action against Callahan even absent his protected activity. Contrary to the judge and our dissenting
colleague, we find the Respondent has satisfied its burden and proven that the
disciplinary action would have been taken against Callahan even if he had no involvement
with the
In order to meet its burden under Wright Line, an employer need not prove that the disciplined employee had committed the misconduct alleged. Rather, it need only show that it had a reasonable belief that the employee had committed the alleged offense, and that it acted on that belief when it took the disciplinary action against the employee. See McKesson Drug Co., 337 NLRB 935, 937 fn. 7 (2002) (citing, inter alia, GHR Energy Co., 294 NLRB 1011, 1012–1013 (1989), enfd. 924 F.2d 1055 (5th Cir. 1991)).
There is no dispute that during a 2-day period, Callahan was responsible for producing nearly 500 defective hoses, turning several thousand dollars worth of the Respondent’s product into useless scrap. Only Callahan had problems with line 3, and these problems occurred only during a portion of his shift on 2 successive days. No employee on the shifts before or after Callahan’s on those days experienced production problems, and Callahan had no problems on the third day. This information, known to the Respondent, provided a basis for the Respondent to scrutinize his production activity in order to assess responsibility. When Supervisor Williams counseled him, demonstrated the correct procedure, and personally assembled two hoses on the same machine, Williams produced hoses without angle errors on the same machine and during the same timeframe in which Callahan was producing defective parts. These circumstances, taken together, reinforced the reasonable perception that the product flaws were attributable to matters within Callahan’s control.
Because of the overwhelming number of bad parts, Williams notified other managers about the problem. The initial decision to terminate Callahan was reached only after consultation among Williams, Williams’ supervisor, Huffer, the division assistant manger, Keith Cauldill, the director of manufacturing, Steve Underbrink, the vice president of manufacturing, Bill Yokas, and King. Having ruled out equipment malfunction and operating instructions as the cause of the defects, and in view of the fact that other employees were producing nondefective hoses with the same machinery, management concluded that Callahan’s extensive production errors were due to his intentional malfeasance. The Respondent reached this determination only after fully investigating the various other possible causes for the errors and eliminating them as the basis. The disciplinary decision followed collaborative deliberation about this serious and costly issue among representatives at several levels of responsibility in the production process.
We are not faced with the issue of whether Callahan in fact intentionally produced the defective hoses. We simply conclude that the Respondent was motivated by the belief that he had done so. As our colleague notes, Callahan was a skilled employee. As the Respondent perceived it, a skilled employee uncharacteristically produced 500 defective hoses in 2 days. Our colleague says that “it appears” that the problem was caused by the manner in which line 3 was configured, and she says that “it seems that” Callahan’s usual facility was thereby impaired. However, apart from this speculation, there is no evidence that he gave these reasons to Respondent as the explanation.28 Thus, the Respondent was not told of anything that would rebut its belief that Callahan engaged in intentional misconduct.
Finally, our colleague relies on the examples of other employees who were not similarly punished for assertedly similar misconduct. The answer is that these employees were not reasonably believed to have engaged in intentional misconduct.
In these circumstances, we find that the Respondent has established its reasonable belief that Callahan bore responsibility for the intentional production of defective hoses and that its decision to discipline him was based on this belief.29 Accordingly, we find that the Respondent has carried its burden of showing that it would have taken this action irrespective of Callahan’s union activities and that it has not acted unlawfully. As we have concluded that the Respondent’s initial decision to discharge Callahan was lawful based on the Respondent’s reliance on his production errors, we also find that the Respondent’s later decision, after the peer review process, to suspend Callahan and to reassign him to other work based on these same production-related considerations was likewise lawful. We therefore reverse the judge and dismiss the allegations of Section 8(a)(3) and (1) as to Callahan.
Discharge of Daniel Gahman
Pursuant to its drug and alcohol policy, the Respondent
conducts random drug testing of employees.30 Laura Crisp, the Respondent’s safety manager
is in charge of employee drug testing.
In April, the Respondent contracted with a local hospital, Lima Memorial
Hospital (LMH), to manage the program.
This included using the hospital’s computer periodically to randomly
generate employee names for testing. On
various dates in September, a large number of employees were selected for
testing.31 Third shift maintenance employee Gahman was
among those randomly selected to be tested on September 18. There are no exceptions to the judge’s finding
that this selection process was lawful.
Toward the end of his shift,32 a representative from the human resources department brought Gahman from his worksite to the Respondent’s nurse’s station, where plant nurse Tonya Weigt explained why he was there. After the necessary forms were completed, Weigt gave him the sample container33 and asked him to submit a urine specimen. With Weigt outside the restroom stall, Gahman produced a very small sample, which failed to register on the container’s temperature gauge. Weigt testified that the sample was an unusual dark brown color and, because the amount was insufficient to perform the test, she disposed of it.34 She then asked Gahman to remain in the area, drink at least forty ounces of water, and try again. On second effort, Gahman produced a sufficient specimen, which Weigt described as being an unusually bright, neon yellow hue. It, too, however, failed to register on the temperature strip. Nonetheless, Weigt sealed the container35 and followed all other standard security procedures to submit that sample for testing.36 Because of the absence of a temperature reading, however, Weigt told Gahman that he was required to provide another sample, witnessed either by a male management official or Dr. Merris Young, the medical review officer at LMH. Weigt advised him that if he failed to provide an observed sample he would be terminated, but if his test result was positive, he would retain his job, but be required to receive substance abuse counseling.37
Gahman went directly to LHM where he provided a urine sample under Dr. Young’s observation. While that specimen also failed properly to register a temperature, Young said it was acceptable because he had witnessed its production. Two days later, Friday, September 20, Dr. Young telephoned Gahman and told him he had tested positive for marijuana and he should contact Crisp for further instructions.38 Crisp directed Gahman to go to Century Health for counseling and to report to work. The next Monday, Gahman went to Century Health and called Crisp thereafter to tell her he had done so. Following Crisp’s instruction, he reported to work at his regular 11 p.m. starting time on September 23.
On the afternoon of Tuesday, September 24, Crisp received LMH’s report of the test result of the second specimen Gahman submitted at the Respondent’s facility on September 18. Its substantive content reads, in full, as follows:
POSTIVE/ABNORMAL REPORT. . . .
THE TEMPERATURE OF THE SPECIMEN AT COLLECTION WAS OUTSIDE
OF THE RANGE FOR
SPECIMEN SUBSTITUTED: NOT CON-SISTENT WITH
Crisp promptly notified King.39 Because Gahman’s shift ended earlier in the day, he was not in the facility.
Shortly after the start of third shift on September 24, Group Leader Rick Mead sent Gahman to see King. King asked for Gahman’s timecard and keys, told him to leave the building, not to speak to anyone, and that he would receive further information concerning his employment status by mail. By letter the following day, Gahman was terminated for “submission of at least one false sample” in a drug test.40
King testified that after consulting with Weigt about the report’s meaning, he concluded it contained two independent findings, with the second being critical, i.e., that it was not really urine. On that basis, King’s recommendation that Gahman be terminated for submitting a false sample was promptly endorsed by the Respondent’s management consensus team and he was fired.
The judge found that Gahman’s termination violated Section 8(a)(3) and (1). First, he rejected the Respondent’s interpretation of the lab report, and found that it was unclear whether the statement in the report made conclusions as to two independent findings; first, that the temperature was off, and second, that it was not human urine; or whether the statement only made a single conclusion that the sample was not human urine because the temperature was off. In view of this ambiguity, the judge found the Respondent’s failure to seek clarification from persons responsible for the lab report indicated disparate treatment. This finding of disparate treatment was based on the judge’s contrasting the Respondent’s treatment of Gahman with its treatment of employee Randy Evans, whose test results he found similarly ambiguous, but who was not known to be prounion. Evans’ abnormal test results, which indicated the presence of a substance that interfered with the test, led to further lab analysis. In addition, King spoke directly with Dr. Young about the meaning of Evans’ report before making a decision.41 The judge reasoned that the only difference between the two employees was the Respondent’s knowledge about Gahman’s union activities. The judge thus concluded that discriminatory motivation based on the Respondent’s antiunion animus was the reason for Gahman’s termination, in violation of Section 8(a)(3) and (1).
The Respondent argues that the judge failed to make proper findings of fact and erroneously assessed the record evidence. The Respondent asserts that the lab report clearly stated that the substance was not what it was supposed to be and that no further analysis or clarification was necessary. By proffering something other than a urine specimen, Gahman violated company policy. In Evans’ case, the specimen was genuine, but there was an impediment to testing it, necessitating additional lab work for a conclusive result. The two cases were handled differently because they were different. We find merit in the Respondent’s position.
For the purposes of our analysis, we will assume that the General Counsel has carried its initial Wright Line burden of showing that the Respondent’s discharge of Gahman was unlawfully motivated.42 Our analysis of the Respondent’s Wright Line defense is based on whether the Respondent has affirmatively established that it would have taken the same action against Gahman even absent his protected activity. Specifically, we consider whether the Respondent has shown that it had a reasonable belief that Gahman had engaged in misconduct in relation to the drug test, and whether it had acted on that belief when it decided to discharge him. See McKesson Drug Co., supra.
We find the judge’s analysis of the evidence is fundamentally flawed. It is based on a strained interpretation of Gahman’s test report and an erroneous comparison of nonequivalent situations. The judge found ambiguity in a report that consists of two simple statements of fact, each set forth in its own separate line. The first deals exclusively with temperature and stands on its own.43 The second begins with the words, “specimen substituted.” This phrase is unequivocal; it means that the substance tested was something other than what Gahman was supposed to submit. Following the colon after that phrase, it concludes by explaining, “not consistent with human urine.” This, just as clearly, means precisely what it says; Gahman submitted something other than urine in the test container. There was no need for further investigation because it did not matter what the substance was.44 It was enough to know that Gahman had attempted to circumvent the purpose of the test, and in doing so acted dishonestly. This alone violated the Respondent’s policy and was sufficient reason to warrant discharge.
Moreover, the judge’s comparison of Gahman’s situation to that of Evans was erroneous. In Evans’ case, the sample could not properly be tested because some type of adulterant interfered with the results. The additional testing was performed at the lab level, as a matter of course and without the Respondent’s request, to identify the nature of the adulterant. Without further testing, it was possible that the sample was contaminated through no fault of Evans. Once it was discovered that the containment was a widely-known masking agent, however, the Respondent could—and did—draw the inference that Evans was responsible for the presence of the agent and promptly discharged him as well.
Thus, there is no evidence of disparate treatment. Because the Respondent read and understood the plain meaning of Gahman’s report, there was no need to consult with the lab. Unlike with Evans’ report, the lab’s function was complete and no additional test was needed to identify the contaminant. Upon the lab’s conclusion that a drug-masking agent had been added to Evans’ sample, the Respondent dispensed the same disciplinary action against him as it did with Gahman. Contrary to the General Counsel’s contention, the Respondent’s treatment of Evans actually reinforces the Respondent’s argument that Gahman’s falsification of his drug test was the actual sole motive for his discharge.
For these reasons, therefore, we find that the Respondent
has established that it would have terminated Gahman when it did, irrespective
of his activities on behalf of the
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. By engaging in the following conduct, the Respondent committed unfair labor practices contrary to the provisions of Section 8(a)(1) of the Act.
(a) In early summer 2002, by its representative Thomas King, giving employee Gahman the impression that his union activities were under surveillance.
(b) In early summer 2002, by King, threatening Gahman with
discipline if he continued his support and activities on behalf of the
(c) On or about August 29, 2002, by King, threatening
employees with layoff and job loss if the employees selected the
(d) On or about September 25, 2002, by its representatives David Berry, Rick Mead, Roger Helms, and David Byglin, disparately enforcing its uniform policy against Gahman.
The above-described unfair labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act.
The Respondent has not committed any other unfair labor practices alleged in the complaint.
Remedy
The Respondent has engaged in the unfair labor practices stated above and is ordered to cease and desist and take certain affirmative action designed to effectuate the policies of the Act.
ORDER
The Respondent, DTR Industries, Inc.,
1. Cease and desist from
(a) Giving an employee the impression that his union activities are under surveillance.
(b) Threatening an employee with discipline if he continues
his support and activities on behalf of the
(c) Threatening employees with layoff and job loss if they
select the
(d) Disparately enforcing its uniform policy against an
employee who shows support for the
(e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in
(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Member Liebman, dissenting in part.
The Respondent used John Callahan’s production errors as a
pretext to justify suspending, terminating, then resuspending, and subsequently
reinstating him to a less desirable position, because of his activities on
behalf of the
i.
Callahan was an early and ardent supporter of the
At the time of the events of this case, Callahan had been employed by the Respondent for nearly 7 years. He worked on the first shift, assembling fuel feed hoses. There is no evidence that he presented job performance or discipline problems at any time.
On the morning of August 27, First Line Supervisor Desmond Williams reassigned Callahan from line 2,2 his usual work station, to line 3.3 Within a short time after the start of the shift, inspectors notified Williams that defective hoses were coming off line 3. After Williams twice spoke to Callahan about the defective output and suggested some adjustments, the problem appeared to be corrected. The following day, Callahan was again assigned to line 3, and production problems resurfaced. Both repair person Staley and production engineer Caldwell were called in to check the equipment. After personally assembling two defective hoses, but finding no mechanical malfunction, Staley altered the angle at which he placed the hose on the assembly bar. When this adjustment appeared to correct the problem, Staley instructed Callahan to make the same change. After that modification, Callahan produced consistently good parts for the remainder of the shift, as well as on the following day, August 29.
Toward the end of his shift on August 29, Callahan was called into the office. Williams, Williams’ Supervisor Huffer, and King were present. King asked Callahan why he was running bad parts. Callahan replied that he had not done so intentionally and suggested that King speak to Staley. King told Callahan to go home and that he would followup the next day.
On August 30, after discussing the matter with several supervisors and managers, but without having spoken to Staley, King directed Callahan to turn in his timecard and leave the premises. By letter dated September 6, Callahan was officially terminated. Callahan promptly requested reconsideration of his discharge by a peer review panel.4 At the September 17 peer review proceeding, the panel voted to overturn Callahan’s discharge. Despite that decision, King immediately imposed a 3-1/2-month unpaid suspension on Callahan. The ensuing written notice5 attributed the suspension to Callahan’s having “destroyed critical safety parts supplied to our customers” and stated that upon his return he would be assigned to a job based on the company’s needs. Upon his return in January 2003, King told Callahan to report to the mixing department, that he would have no right to bid on other jobs, and after the first few weeks, he would be assigned to the second shift.
Although his pay and benefits were not affected by the new assignment, Callahan described the mixing department as the worst job in the plant, being both dirty and physically demanding. Callahan quit in June 2003, and does not seek reinstatement.
ii.
Assuming that the General Counsel satisfied his initial Wright Line burden, the majority concludes that the Respondent successfully rebutted that prima facie case. They accept the Respondent’s contention that it would have taken these disciplinary measures against Callahan regardless of his union activity. I disagree. In my view, the Respondent has proven neither that Callahan intentionally ruined the hoses nor that it would have disciplined him as it did were it not for Callahan’s involvement in union activities.
Just weeks before these 2 days of production problems, Callahan’s skill, cooperation, and value to the Respondent’s operation were fully acknowledged. Faced with an emergency, the Respondent asked Callahan to come in from vacation in July to assist in the effort to turn out replacement hoses, after someone had run “thousands of bad parts” which had been mistakenly sent to a major customer.6 The Respondent called on Callahan because of his proven ability to produce quality hoses expeditiously. Callahan’s prompt and competent response to the emergency request helped to rectify a significant and costly mistake and provide needed parts to an important customer.7
Callahan’s run of misaligned hoses appears to have been attributable to the way the hose components were positioned on the assembly equipment. Line 3 was not his usual worksite and the line on which he was accustomed to working was set up in the opposite configuration from line 3. As a result, it seems that Callahan’s usual facility with the process was impaired. In any event, despite a supervisor’s attempts to correct the matter, it took the intervention of a repairman and a production engineer before the problem was finally identified and a resolution was devised. Once Callahan was afforded specific instructions, he was able to correct the problem and resume producing quality parts.
The Respondent nonetheless accused Callahan of deliberately sabotaging the production process, citing the absence of machinery malfunction and the fact that employees working on line 3 on shifts before and after Callahan did not produce defective parts. The Respondent neither presents objective evidence nor offers a reasonably plausible basis for concluding that Callahan’s production problems were the result of malicious intent. There is no evidence that Callahan harbored antagonism that would motivate him to destroy the Respondent’s property. Yet the Respondent leapt to the conclusion that the production flaws “must have” resulted from intentional malfeasance. Given Callahan’s long and well-regarded work tenure, his unblemished disciplinary record, proven job dedication, demonstrated productivity, and the absence of any factual basis for attributing ill intent to him, a reasonable explanation is that the Respondent seized on Callahan’s production difficulties (likely attributable to his unfamiliarity with line 3) to retaliate against him for supporting the Union.
Obviously, the Respondent has the right to impose disciplinary measures on employees because of performance inadequacies. And, Callahan’s 2 days of faulty production did result in considerable product loss for the Respondent. But, it is not enough for an employer simply to assert a legitimate reason for its disciplinary action. Rather, it must establish, once the General Counsel has satisfied his threshold burden of proving discriminatory motivation, that it would have taken the same action even absent protected conduct. Here, as explained below, the Respondent cannot sustain its burden because the evidence shows that the discipline Respondent imposed on Callahan was atypically severe as compared with its handling of other instances of performance-related deficiencies.
To illustrate, in May 2001, the Respondent issued merely a “verbal counseling” to an employee for “disregard[ing] proper procedure” and “causing substantial loss of product” when he failed to check for batch tags and running rubber in the extruder. Several months later, the same employee again received only a “verbal counseling” for not running appropriate checks on the coil production, resulting in an unacceptable, illegible print message on a large quantity of product. In February 2002, another employee was given only a “formal letter of warning” after a series of incidents, including running “the wrong chemicals in two batches of rubber causing lost production and high scrap costs.” A third employee received only a warning notice for having assembled over 100 defective hoses as well as falsifying documents relating to those hoses. When the same individual subsequently ran 78 additional parts with hoses of the wrong length, the Respondent merely verbally counseled him regarding the infraction.
These examples illustrate that the severity of Callahan’s treatment, initially imposed after an incomplete investigation and essentially reaffirmed despite a review panel’s determination that it was unwarranted, stands in stark contrast to the fairly mild reprimands given employees with similar performance errors who exhibited no prounion sentiments. In these circumstances, I do not believe that the Respondent has established that it would have taken the same action against Callahan absent his protected conduct. I therefore part company with the majority and would adopt the judge’s reasoned determination that the Respondent’s series of disciplinary actions against Callahan violated Section 8(a)(3).
Dated,
______________________________________
Wilma B. Liebman, Member
National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not give you the impression that your union activities are under surveillance.
We will not threaten you with discipline if you continue your support and activities on behalf of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW.
We will not threaten you with layoff and job loss if you select the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW as your bargaining representative.
We will not disparately enforce our uniform policy against you if you show your support for the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
DTR Industries, Inc.
Iva
Y. Choe, Esq., for the General Counsel.
Robert
F. Rivera, Esq. and James A. Rydzel, Esq. (Jones Day), of
DECISION
Statement of the Case
John W. West,
Administrative Law Judge. The charge was filed by International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America, UAW
(
A trial was
held in this matter on December 16, 17, and 18, 2003, in
Findings of Fact
i. jurisdiction
The
Respondent, a
ii. alleged unfair labor practices
The Respondent
manufactures rubber and plastic automotive hoses and also rubber antivibration
products. It has three shifts at its
Bluffton facility, namely the first which runs from 7 a.m. to 3:20 p.m., the
second which runs from 3 to 11:20 p.m., and the third which runs from 11 p.m.
to 7:20 a.m. There are about 800
employees at the Bluffton facility, with about 375 on the first shift, 225 on
the second shift, and 200 on the third shift.2
The Respondent’s
employee handbook, General Counsel’s Exhibit 2, contains the following:
Our non-union
status is a compliment to all of our . . . [employees] and all of our managers
at DTR. We believe that it is not
necessary for our . . . [employees] to belong to a union in order to enjoy a
satisfying work life at DTR. It is the commitment of DTR management to make
every effort to maintain a working environment where . . . [employees] can
openly discuss their problems and ideas. Maintaining this type of environment and
maintaining positive relationships between all . . . [employees] protects our
customers, our jobs and our Company.
When called by
counsel for the General Counsel, King, who is the Respondent’s executive coordinator,
testified that it is the Respondent’s preference to remain union free, and the
Respondent does not think a union would contribute any positive affect to the
relationship between the Company and its employees.3
According to
his testimony, in mid-July 2002, while he was on vacation, Callahan, who was
hired in 1996 and was a general laborer in hose manufacturing on assembly line
3, was “begged” by his supervisor, Chad Risner, to come to work on a Sunday
because DTR had to quickly get out some parts for Honda to replace some bad parts.4 Callahan testified that Risner told him that
he could run line 3 faster than anybody, he knew the machinery, and he could
get the parts out. Callahan worked that
Sunday.
When he
returned from his vacation Callahan went to line assembly 2 for about 2 weeks.
In July 2002,
Callahan, who worked on the first shift, became active in the union organizing
drive at DTR. He attended union meetings,
signed a union authorization card, passed out union leaflets, had other
employees sign union authorization cards, and talked about the
In July 2002,
Gahman, who worked on the third shift, became active in the union organizing
drive at DTR. He attended union
meetings, passed out union authorization cards during his lunch and breaks, in
the smoking area in front of DTR and at a bar after work, and talked about the
King met with
Gahman in late July 2002. King’s notes,
General Counsel’s Exhibit 11, taken during this meeting read as follows:
Dan Gayman—[sic]
Pretty much done with U—don’t intend to do any more. Leave it where it is
Joke about knives.
Attended 3 meetings—won’t attend any more. Disgusted with it.
. . . [end of page two of General Counsel’s Exhibit 11 which is a copy of King’s handwritten entries on a page of his notebook with a portion redacted]
Won’t be a future problem—I’ve pretty much relinquished everything. [Page three of General Counsel’s Exhibit 11 which is a copy of King’s handwritten entries on a page of his notebook with a portion redacted.]
King testified
that he thought that the meeting took place on July 22 after 7 a.m.5
Gahman
testified that in the beginning of August 2002, the morning after he attended a
union meeting at the hotel in Bluffton, King spoke to him about union activities;
that the discussion took place in the conference room at DTR; that he, King,
Helms, Laura Crisp, who is safety director, and Byglin, who is the third shift human
resources specialist, were present; that King said that he was aware that
Gahman was an outspoken supporter for the UAW and had attended union meetings;
that King said that several things had been brought to his attention about
Gahman’s behavior that he did not approve of; that King said that he had heard
that Gahman had sharpened a knife for an employee in trade for the employee
signing a union authorization card, and Gahman refused to install a fan for an
employee who did not support the UAW; that he told King that he did sharpen an
employee’s knife as a favor to the employee and after he sharpened the knife,
he talked to the employee about the Union and the employee did sign a union
authorization card; that it was not a trade off; that he told King that he
could check the computer record and he would see that he, Gahman, installed all
of the fans that were requested; that King said that he “wasn’t happy with my
support . . . of the UAW, and he thought there was good people working there
and the UAW would be a bad thing for them . . . [a]nd if he didn’t hear anymore
reports about my support and the UAW or openly supporting the UAW, that there
would be no further mention of the allegations that he brought up” (Tr. p.
181); that King then said that “if he continued to hear reports about my UAW support
that there would be disciplinary action for the knife incident and the fan
incident” (Id.); that he told King that “it wouldn’t be a problem because I had
come to a decision to discontinue my support for the UAW and, . . . that I
would no longer be involved with it one way or another so that he wouldn’t be
getting any more reports about me and UAW activity” (Id.); that at the union
meeting the day before he bragged about his methods to get people to listen to
him; that more specifically he bragged about sharpening an employee’s knife and
then told the employee about the Union and got him to sign a union authorization
card; that at the union meeting he also spoke about a female employee asking
him why she could not have a fan installed in her area, and later, during
break, he told the employee that if they had a union, they might be able to get
a fan for every employee like a UAW Ford plant; that at the time there was no
work request to install a fan in her area so he did not have the authority to
install a fan for her; and that before this he believed that union meetings
were confidential.
On
cross-examination Gahman testified that King opened the meeting with “[I]t’s
been brought to my attention” (Tr. p. 229); that he has sharpened knives many
times; that the knife sharpener that he used was his own that was bought for
him for Christmas; that he did sharpen the knife at issue on Company premises;
that he had been doing it for all the years that he worked at DTR; that King
said that it had been reported to him that Gahman told one or more employees
that he would not install a fan unless they signed a union authorization card;
that he told King this was not true; and that he understood King to then say
that if he heard any reports about him supporting the UAW, King would
discipline him.
When called by
the Respondent, King testified that he received information from an employee
through several supervisors that Gahman was organizing during working hours on
the plant floor, disrupting other employees by attempting to persuade them to
sign authorization cards while both Gahman and the other employee were supposed
to be working; that he told the supervisors that he wanted to meet with the
employee to hear the information himself; that he had a meeting with the third
shift employee, Phillips, who told him that (1) Gahman inappropriately in front
of other people tried to get him and his girlfriend while they were in the
cafeteria to sign authorization cards, (2) he heard that Gahman sharpened a knife for an employee and in exchange
the employee signed an authorization card, and (3) he heard that Gahman was telling people that (a) if they signed an
authorization card, he would install a fan for them, and (b) if they did not,
he either would not install a fan or the installation would be low priority;
that General Counsel’s Exhibit 11 are his notes of the meeting he had with
Phillips on July 22; that, with respect to Gahman’s solicitation of Phillips signature
on an authorization card, Phillips told him that he did not like being
interrupted on a break; that later that same day he met with Gahman, with Bill
Yokas, Helms, and Byglin present; that he asked Gahman about what another
employee had told him he heard; that
Gahman volunteered that he was disgusted with the Union, he had attended three
union meetings, and he is not going to be involved anymore; that Gahman denied
the allegation about the fan installation but admitted sharpening a knife, and
said that he did it all the time; that he told Gahman that he could not sharpen
personal knives for anyone on DTR’s property with its equipment during working
hours because it creates substantial liability and risk for DTR, and uses time
he should be performing his duties; that he did not tell Gahman anything about
the fact that he knew that Gahman was attending union meetings; that he did not
tell Gahman that if he did not engage in union activity in the future, he would
not be disciplined for the knife sharpening; and that he did not make threats
of any kind to Gahman regarding the events that were reported to him. On cross-examination King testified he assumed
that the complaining employee was on his break when Gahman solicited his
signature on a union authorization card; that he did not speak with the
employee who had his knife sharpened or the employee who allegedly complained about
the fan; that after speaking with Gahman, he had Byglin and Helms check the
records with respect to fans and they did not find anyone who wanted to come
forward and say the alleged fan incident happened; that he did not think the
complaining associate knew the name of the woman in zone D who complained about
a fan; and that the only report that he had about Gahman engaging in union
activity during worktime was from Phillips.
Callahan
passed out union leaflets outside of DTR’s facility three times. The first time was in mid-August 2002, when he
passed out leaflets from 6 to 6:45 a.m. He
was standing on the outside of the west parking lot on the main road with two
other employees and two or three UAW representatives. A police officer came to the site and he indicated
that he just wanted to make sure that the people handing out leaflets knew
where they were supposed to stand.
Approximately 2
weeks after he first handed out union leaflets outside of DTR’s facility,
Callahan did it for the second time. King
drove by while Callahan was 3 feet behind someone who tried to give King a
union leaflet.
On Monday,
August 26, Desmond Williams, who is a group leader, assigned Callahan to assembly
line 3.6
On August 27,
at about 9 a.m., Williams told Callahan that parts were coming out at a bad
angle and he should set the parts down at a different angle when he took them
out of the machine. The operation
Callahan was performing that day involved putting a piece of hose on a machine,
which machine then coats the inside of the hose with an adhesive and inserts a
metal piece on each end of the hose. Callahan
then took the hose attached to the two metal pieces out of the machine and
placed it on a bar at a certain angle to allow the adhesive to set. After a set period of time had passed, Callahan
would crimp both metal ends over the hose and place the part in an oven to cure
the adhesive. About 11 a.m. Williams
told him that the parts were still coming out at a bad angle. Callahan testified that Williams spoke to him three
times that day about bad parts, finally asking him if he had problems or was
anything wrong with him; that he had been setting the parts on the bar exactly
the way Williams wanted him to set them; and that after the third time he did
not hear from Williams again that day.
On August 28,
according to Callahan’s testimony, Williams approached him about 11 a.m. and
told him that the parts were coming out at a bad angle. Callahan testified that he told Williams that
they needed to get the set up guy, Dan Staley; that when Staley came to the
machine Callahan assembled a part, while Staley stood there, and he handed the
part to Staley who put it in the inspection jig and determined that it was not
within specifications; that they did three more parts and each time the part,
when placed in the jig, did not meet specifications (it did not fit properly in
the jig.); that he told Staley to handle the part himself when it came out of
the machine so there would not be any question about the way Callahan was
handling the part; that Staley told him “that it was the machine, . . . to go
to lunch, . . . he would get a production supervisor to look at it” (Tr. p.
115); that Williams was not present while he and Staley were running parts;
that he went to lunch and when he returned Staley, in Williams’ presence, told
him when the part came out of the machine he should rotate it at a 180-degree angle
and set them down; and that he followed this procedure the rest of the day.
On
cross-examination Callahan testified that once the part is crimped he does not
put it directly in the curing machine but rather he puts it in the chuck which
drops it in the oven; that he did not recall there being any sensors in the
chuck to determine if the part has been crimped properly; that as long as the
part fits in the hole on the chuck, it blocks the sensors and the part will be
dropped into the curing oven; that the part is in the curing oven for 80
minutes; that when the part comes out of the curing oven it is pressure tested
by other employees; that the part is put is put back in another oven to dry it
off from the water test; that he was told that the parts were bad but he was
not told that the angle on the small metal piece was not within specifications;
that the involved part is a high pressure fuel hose; that he made the part on
hundreds of occasions prior to the 2 days in question; that the only difference
between line 2 and line 3 with respect to this part is that one is left handed
and the other is right handed; that in the past he has made some bad parts but
he never made 500 bad parts in the past; that there was a situation where the
metal was bad and there were “thousands of bad parts” (Tr. p. 144) run, and
this was the time that someone had sent bad parts to Honda and Risner called him
while he was on vacation and asked him to run the parts for Honda; that in that
situation the larger piece of metal was bad;7
that on Monday, August 26, he did not have a problem with the same part; that
the part is placed on the bar to make sure that as the adhesive sets the angles
of the metal to the hose are correct; that he was given a one-point lesson on
how to support the smaller metal block, part 01-291 (which at that point is attached
to the hose, the other end of which is attached to the large metal block) on a
bar so as to avoid producing “bad angles,” (R. Exh. 5); that on August 27 he
was told that he made bad parts in the morning and after lunch as well; that on
August 28, he started making good parts after lunch; that
Now I’m fast at this. I’m the best at this area, this job. There’s nobody who can put out parts quicker than I can and I can do those three [on the bar—the one point lesson indicates that “AT LEAST 3 TO 4 PARTS SHOULD BE RAN AHEAD TO GIVE GOOD SET UP TIME,” [R. Exh. 5] before they dry and I’m thinking as I’m grabbing them and doing them, they’re not having time to dry because I, I am pretty quick at it.
I’ve got to be real good and the more I think about it, I think that’s what the problem is. When I grab them I go, I move quick. This machine is a little slower than Line 2 and you have to get a thousand parts out a day[;] [Tr. p. 152.]
that he told
his supervisor, Williams, the second day that the machine was a little slower
and he happened to move a little faster; that he thought that he made more
parts on August 27 and August 28 than he did on August 27; that there were no
problems with bad parts after Staley looked at the machine; that in a letter he
gave to the Board in the course of the investigation of this case he indicated
that he ran the involved line 2 machine 20 to 25 other times; that he made the
involved part hundreds of times; that there are bad parts every day; that he
did not recall ever making 500 bad parts, not even on August 27 and 28; that he
never told Williams or King that he thought that the problem was that he was
working too fast, but he did tell this to peer review; that the Company never
told him what the problem was with the bad parts; and that they did tell him
that it was a bad angle but they did not tell him if it involved the small
block or the large block side.
On redirect
Callahan testified that Williams told him that the part was coming out at a bad
angle; that Williams showed him how to lay the part on the bar, namely the tip
of the small block, and he told Williams that is how he had been doing it; that
he went to lunch and when he returned Williams and Staley told him to lay the
part on the bar at 180 degrees different than he had been doing so that now the
big block was on the bar instead of the small block (This is contrary to the
placement of the part on the bar set forth in the above-described one-point lesson,
R. Exh. 5.); that pursuant to these instructions he placed the big block on the
bar and there was no trouble for the next day and a half; that a one-point lesson
took about 1 minute to read, sign, and pass on to another employee at the morning
meeting; and that he did not recall the one-point lesson received as Respondent’s
Exhibit 5.
Williams, who worked for DTR for over 6 years and is a group leader in hose assembly, testified that he had been a group leader for 4 years and had been in hose assembly for 18 months at the time he testified at the trial herein on December 17, 2003; that he made the involved part during his training program when he came ove