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,
Cast-Matic
Corporation, d/b/a Intermet Stevensville and
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of
September 17, 2007
DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
By
Members Schuamber, Kirsanow, and Walsh
On
May 16, 2003, Administrative Law
Judge C. Richard Miserendino issued the attached decision. The Respondent filed exceptions and a brief,
and the General Counsel filed an answering brief. The Respondent filed a reply. The
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
briefs[1]
and has decided to affirm the judge’s rulings, findings,[2]
and conclusions only to the extent consistent with this Decision, Order, and
Direction of Second Election.
i.
introduction
The
Respondent manufactures aluminum steering knuckles for a major automotive parts
company. This case involves numerous
alleged unfair labor practice violations that purportedly occurred between mid-February
and June 2002[3] in
connection with an organizing campaign undertaken by the Union at the Respondent’s
facility in
The
judge found that the Respondent committed several unfair labor practices both
during and after the
In the discussion that follows, we address those unfair labor
practice findings that we reverse and others that we adopt with additional
analysis. In doing so, we present the alleged
unfair labor practices in chronological order in an effort to more accurately
portray the Respondent’s conduct during the
ii.
unfair labor practices
A.
Alleged Violations of Section 8(a)(1)
1. The Respondent’s
handbook policies
The
judge found that the Respondent violated Section 8(a)(1) by maintaining its
no-solicitation rule and its resolution opportunity program. We agree with the judge that the
no-solicitation rule violated the Act,[6]
but we reverse his finding that the resolution opportunity program was
unlawful. [7]
The
Respondent’s 2001 employee handbook included two policies relating to the
resolution of workplace disputes: the open door policy and the resolution
opportunity program. The open door
policy states that the Respondent “promotes an atmosphere whereby employees can
talk freely with members of the management staff. Employees are encouraged to openly discuss
with their supervisor any problems so appropriate action may be taken. If the supervisor cannot be of assistance, Human
Resources is always available for consultation and guidance.” The open door policy is not alleged to be
unlawful.
The
resolution opportunity program states that “[e]mployees are encouraged to bring
their concerns about work-related situations to the attention of management
through the ‘open door’ atmosphere.” It
continues: “If the employee believes that his or her concern would best be
addressed using a more formal procedure, he or she may use the following
process to seek management review of his or her concern.” The resolution opportunity program then sets
forth a formalized procedure for the resolution of “concerns dealing with workplace
conditions, conditions of employment, treatment of the employee by management,
supervisors, or other employees, or the application of Company policies, practices,
rules, regulations, and procedures to the employee’s individual situation.” Finally, it states:
Each
employee using the resolution opportunity program must represent his or her
self in the process—no employee may represent, appeal, or speak on behalf of
another employee during the process except as a witness as needed by the
investigating manager.
Relying
on Kinder-Care Learning Centers, 299
NLRB 1171 (1990), the judge determined
that the resolution opportunity program was unlawful because it “prohibit[ed]
employees from acting in concert in dealing with management about matters
affecting their terms and conditions of employment and from acting together for
their mutual aid or protection.”[8] Although the judge did not explain the basis
for this finding, it appears that he faulted the policy because it prohibited
employees from representing each other.
Contrary to the judge, we find that the Respondent did not violate the
Act by placing this condition on the use of the resolution opportunity program.[9]
The
judge erred in reading the policy in isolation, rather than in the context in
which it appears. See U-Haul of California, 347 NLRB No. 34,
slip op. at 5–6 (2006). The resolution opportunity program is merely one process
that the Respondent established for the resolution of employee concerns. Indeed, it is characterized in the handbook
as a “more formal” alternative to the open door policy, which contains no
restriction or prohibition on collective employee action.
Moreover,
the resolution opportunity program does not foreclose employees from using
other avenues (e.g., the union, fellow employees, the NLRB) to address their
workplace concerns, or require them to invoke the resolution opportunity program
first, or at all.[10] Indeed, the policy makes clear that employees
“may,” in their discretion, invoke it if they believe that “their concerns
about work-related situations” would “best be addressed” using the procedure
set forth in the policy. Therefore, the resolution
opportunity program would not reasonably be understood to forestall employees
from acting in concert to deal with management about matters affecting their
terms and conditions of employment. See U-Haul of California, above, slip op. at
6. Instead, they remain free to act together
through the open door policy or through other avenues, like the
Accordingly,
we dismiss this allegation.
2. Removal of bulletin
boards
The
judge found that the Respondent violated Section 8(a)(1) when it removed the
bulletin boards from the employee breakroom on February 15. He determined that the timing of the removal
and the Respondent’s delay in re-hanging the bulletin boards shows that they
were removed to thwart the
On
February 15, General Manager Joe Barry ordered the removal of all the bulletin
boards in the employee breakroom, including the board reserved for employee
communications. He testified that he
made the decision to remove the boards 1 or 2 days before they were removed. He stated that the boards were taken down in
order to paint the room in preparation for upcoming visits by potential
customers and a major audit that was to take place sometime in March.
Barry
told Facilities Manager David Patterson that he wanted the boards removed and
the breakroom painted, but did not tell him why. Patterson testified that he assumed it was
because of customer visits and the upcoming audit, which, among other things,
reviewed overall plant cleanliness.
Shortly
after the boards were removed, Patterson told Bill Atkins, a manufacturing
engineer who oversees facilities maintenance, that the walls had to be
painted. Atkins had serious doubts that
the breakroom could be painted and all eight boards replaced in time for the customer
visit. Atkins and janitor Phil Lee
scrubbed a small area of a wall with spray cleaner, which improved the
appearance. Atkins advised Barry and
Patterson about his concerns, and they agreed to have the walls cleaned instead
of painted.
Lee
washed the walls between February 28 and March 1. On March 4, the Respondent replaced the
bulletin boards.
On
these facts, the judge found that Barry ordered the removal of the bulletin
boards to thwart the
Thus,
we agree with the judge that the evidence viewed as a whole warrants a finding
that the Respondent acted to interfere with employee Section 7 rights. Contrary to our dissenting colleague, it is
of little moment that the record does not show that employees had previously
used the bulletin board to communicate about the
3. Delayed review
of Antonio Jeffries
The
judge found that the Respondent violated Section 8(a)(1) on February 19 when Supervisor
Zoe Burns gave employee Antonio Jeffries his 90-day performance evaluation and
told him that it was late because of the
Jeffries’s
90-day performance evaluation was due to be issued on December 19, 2001. Because Burns had fallen behind on her
reviews, in November 2001 she granted Jeffries a merit increase based on his
performance for the review period and “told him his review would be coming at a
later time and that [she] knew [she] was going to be behind at [the time it was
due to issue].” Then, in mid-to-late
January, Burns told Jeffries “that [she] was behind on her reviews and that
[she] would be getting caught up as soon as [she] could.” On February 19, the day before the
The
judge correctly recognized that employers who delay regular wage or benefit
adjustments to prevent the appearance of an attempt to influence a union
election outcome must make sure not to make statements shifting the onus for
the delay onto the union, thereby “creating the impression that [the union]
stood in the way of their getting planned wage increases and benefits.” Atlantic
Forest Products, 282 NLRB 855, 858 (1987) (quoting Uarco Inc., 169 NLRB 1153, 1154 (1968)). Contrary to the judge, however, Burns’s comment
did not shift to the
4. Valerie Ortiz
February 20 interrogation of
Kristie Cramatie
The
judge found that the Respondent violated Section 8(a)(1) on February 20 when
Operations Manager Valerie Ortiz interrogated employee Kristie Cramatie about
her union activities and the union activities of others. We agree.
On
February 18, Ortiz unlawfully asked Cramatie to remove her union button and
told her not to wear it again. She also
told Cramatie that union materials were not to be brought into the plant.[13] Two days later, acting on a complaint by
employee Betty Scott that Cramatie had harassed her about the
During
this meeting, Cramatie became very emotional, began crying, and expressed a
fear that she was going to lose her job.
She told Ortiz and Reed that she felt like she had been harassed by
coworkers, who were coming to her part-time employment at Radio Shack to
discuss the
The
judge found that Ortiz unlawfully interrogated Cramatie about her union activities
and about the union activities of others.
We agree on both counts. In determining
whether an interrogation violates Section 8(a)(1) of the Act, the Board looks
at whether, under all the circumstances, the interrogation reasonably tends to
interfere with, restrain, or coerce employees in the exercise of Section 7
rights. Emery Worldwide, 309 NLRB 185, 186 (1992) (citing Rossmore House, 269 NLRB 1176, 1177
(1984), and Sunnyvale Medical Clinic,
277 NLRB 1217 (1985)). The factors to be
considered in analyzing the interrogation include: “(1) the background; (2) the
nature of the information sought; (3) the identity of the questioner; and (4)
the place and method of interrogation.” Rossmore
House, 269 NLRB at 1178 fn. 20.
Here, Ortiz, the second highest management official at the plant, called
Cramatie to her office and questioned her about passing out union buttons. As the judge found, Ortiz suspected that
Cramatie was defying Ortiz’ unlawful directive of February 18 that she not
bring union materials into the plant.
Ortiz’ opening question sought to learn whether Cramatie was in fact
continuing her protected conduct in defiance of the Respondent’s unlawful
prohibitions. Also, in this same
conversation, Ortiz unlawfully admonished Cramatie that she should not have
communicated to other employees about the Respondent’s unlawful February 18
directive regarding the wearing of union buttons. Because Ortiz sought to question Cramatie
about her continued involvement in passing out union buttons and her
involvement in encouraging employees to support the
Further,
in the circumstances here, Ortiz’ questions about the identities of the
employees purportedly harassing Cramatie constituted an unlawful interrogation
into the union activities of others. Cramatie’s
allegation of harassment was not a simple unsolicited complaint; rather, it was
an emotional outburst brought on by Ortiz’ unlawful interrogation about
Cramatie’s lawful union activity. Here,
Ortiz’ comment that she would arrange a meeting to address the harassment
implied that the harassing employees would be disciplined, just as Cramatie was
being admonished for her activities in support of the Union.
Given
the coercion that permeated this Ortiz-Cramatie February 20 encounter, we
disagree with our colleague’s view that Ortiz’ attempt to learn the names of
employees who visited Cramatie at her second job and allegedly harassed her
there about the Union was lawful. Though
Cramatie raised the matter of the purported harassment at her second job, Ortiz
quickly seized the opportunity to inquire about the identity of other employees
involved in protected conduct. Contrary
to our colleague, as the issue is whether Ortiz’ February 20 question was coercive,
it does not matter that Ortiz did not pursue Cramatie’s allegations after the
meeting.
In
light of these circumstances, we find that the Respondent violated Section 8(a)(1)
when Ortiz interrogated Cramatie about her union activities and the union
activities of others.[14]
5. Dale Potter threatening
increased insurance
premiums
The
judge found that the Respondent violated Section 8(a)(1) on February 20 when Supervisor
Dale Potter[15]
threatened employee Bill Tregoning that insurance premiums would increase if
employees selected the
We
agree with the judge that Potter’s comment violated Section 8(a)(1). It is unlawful for an employer to threaten to
withdraw an established benefit for the purpose of dissuading employees from
supporting a union. Of course,
collective bargaining is a process, and an employer “may properly point out the
hazards to its employees . . . [p]rovided the employer’s statements to its employees
are not made in a coercive context or in such a manner as to convey to the
employees a threat that they will be deprived of existing benefits if they
select a union to represent them.” Belcher Towing Co., 265 NLRB 1258, 1268
(1982), affd. in pertinent part 726 F.2d 705 (11th Cir. 1984). Potter’s statement was made during the same
confrontation in which he unlawfully asked Tregoning to remove his union button
and told him that union materials were not allowed in the plant. Thus, the context in which Potter’s statement
was made was coercive and rife with comments demonstrating the Respondent’s
antiunion position. In these circumstances,
we find that Potter’s comment was an unlawful threat that employees would be
deprived of existing benefits if they selected the
6. Valerie Ortiz prohibiting
Tom Turney from remaining in plant after shift
The
judge found that the Respondent violated Section 8(a)(1) when Ortiz told Turney
on February 28 that he could not remain in the plant after his shift
ended. The judge determined that the
Respondent’s shop rule prohibiting employees from “being present in the
facility during non-working hours without good cause” was seldom enforced, and
that the real reason for prohibiting Turney from being in the plant after his
shift ended was because of the union campaign.
We agree with the judge that Ortiz’ conduct violated the Act, but for
the reasons stated below.
On
February 27, about 5 minutes after Turney’s shift ended, Supervisor Jon Brant
noticed Turney speaking with two third-shift employees in the toolroom. Brant approached Turney and asked him if he
was on overtime and Turney responded that he was not. Brant then said, “I’ve heard about you” and
told Turney that he was not to be in the plant.[16]
The
following day, Turney went to Ortiz to discuss his confrontation with
Brant. Ortiz told Turney that due to
vandalism and the union organizing campaign, the Respondent was watching
people, and that employees had to be out of the plant at the end of their
shift. On March 7, Turney received a
written warning for remaining in the plant on February 27 and for restricting
and retarding the production of others.[17]
As
noted, the Respondent has a shop rule that prohibits employees from “being
present in the facility during non-work hours without good cause.”[18] Nevertheless, prior to the commencement of
the organizing campaign, employees bought and sold candy and other items before
and after their shifts in both working and nonworking areas. Also, Supervisor Brandon Reed testified that,
although most employees leave the facility within 5 minutes after their shift
ends, nothing has ever been posted or distributed to employees telling them how
long they can remain. Prior to February,
Reed never disciplined anyone for staying in the plant after shift. When asked if he ever saw any employees in
the plant during nonworking hours, Reed responded, “I couldn’t tell you whether
that occurred before or not. I guess I
never really paid any attention to it.”
We
find that the Respondent violated the act when Ortiz prohibited Turney from remaining
in the plant after his shift ended. The
record demonstrates that, despite the existence of the Respondent’s shop rule,
employees had been free to remain in the plant, and even in working areas,
after their shifts ended, and that the Respondent only sought to restrict their
access once the union campaign began.
Indeed, Ortiz specifically identified the union campaign as a reason
that the Respondent was restricting Turney’s access to the plant. Moreover, Respondent’s stated concern about
vandalism is unavailing here; the Respondent took no action to restrict
employee access to the plant, even after someone purportedly broke into the
accounting department in January, until several weeks later when it learned
about the organization campaign.
Restrictions that are imposed to discourage organizational activity,
including limiting the access of employees not scheduled to work, violate the
Act. Schwartz
Mfg. Co., 289 NLRB 874, 878–879 (1988).
Further, there is no evidence that the Respondent enforced its rule
uniformly to apply to off-duty employees seeking access to the plant for any
purpose and not just to those employees suspected of engaging in union activity. Accordingly, we find that the Respondent unlawfully
prohibited Turney from remaining in the plant after his shift ended.
7. Zoe Burns prohibiting
Lisa Cogswell from discussing discipline
The
judge found, and we agree, that the Respondent violated Section 8(a)(1) on
March 18 when Burns, after issuing a formal warning to employee Lisa Cogswell,
instructed her not to discuss her discipline with anyone. Burns testified that she “told Lisa not to
discuss her discipline with other employees while she was working [because] she
was interrupting production.” According
to Burns, another employee had previously complained that Cogswell had impeded
his ability to do his work because she detained him to complain about certain
supervisors’ actions.
Absent
a total ban on employee discussion about any topic during work, employees have
a right to discuss discipline with fellow employees. Caesar’s Palace, 336 NLRB 271, 272 (2001). Nevertheless, an employer has the right to
prohibit discussion that interferes with production. Here, however, the Respondent has failed to
prove that Burns’ directive that Cogswell not discuss her discipline with
fellow employees was warranted by the facts.
Cogswell was neither disciplined nor even warned about the single
instance of interference the Respondent offered to justify the ban; further,
the Respondent failed to demonstrate that Cogswell’s earlier discussion
actually impeded productivity in any material way. Finally, there is no evidence that other
employees were restricted from talking to each other during work. In these circumstances, we find that Burns’
conduct violated Section 8(a)(1) of the Act.
8.
The
judge found that the Respondent violated Section 8(a)(1) when Supervisor
Preston Estep distributed antiunion literature to employees Cogswell and Henry
Baker. We disagree.
About
March 23, Estep was standing near the timeclock handing out antiunion
literature. Cogswell attempted to walk
by without taking the literature, but Estep called out her name, walked up to
her, and handed the literature to her.
Later, about April 1, Estep approached employee Henry Baker and read him
portions of an antiunion flyer that Estep had highlighted in yellow. Asked whether he told Estep that he did not
want the flyer, Baker testified: “I do not remember just coming out and saying,
I do not want it. You know, he is a supervisor
I respected. That is why I
listened. I just listened to it, you
know.” Estep gave Baker the flyer after
he finished reading it.
In
each instance, the judge determined it was a violation of the Act to have
supervisors directly offer employees antiunion literature because that
effectively put the employees in a position of having to accept or reject the
information and thereby make an observable choice that would reveal something
about their union sentiments. In so finding,
the judge relied on A. O. Smith
Automotive Products Co., 315 NLRB 994 (1994), and Circuit City Stores, 324 NLRB 147 (1997). We disagree.
Generally,
employers are entitled to distribute campaign literature during a campaign. The
involvement of supervisors in the distribution process does not by itself
convert that lawful distribution into an unlawful one. See Jefferson Stores, 201 NLRB 672, 673, 676–677 (1973) (employer’s
assistant manager lawfully distributed “vote no” cards to employees at the
doors of the plant).
The
cases relied on by the judge and the General Counsel involve supervisory
distribution of displayable antiunion paraphernalia, not campaign literature. Circuit
City Stores, above at 147 (“vote no” coffee mugs); Barton Nelson, Inc., 318 NLRB 712 (1995) (antiunion hats); A. O. Smith Automotive Products Co., above
at 1009 (“vote no” caps, T-shirts, and buttons). As the Board stated in Barton Nelson, Inc., “when supervisors approach individual
employees and solicit them to wear
antiunion or proemployer paraphernalia, the employees are forced to make an
observable choice that demonstrates their support for or rejection of the
union.” 318 NLRB at 712 (emphasis added).
In the instant case, by contrast, the Respondent’s campaign literature
was not intended or designed to be displayed by an employee as an expression of
union sentiments. Instead, all that was “required”
of Cogswell and Baker, and all that they did, was to receive the Respondent’s
campaign literature, the content of which is not alleged to be unlawful. Accordingly, we dismiss these
allegations.
B.
Alleged Violations of Section 8(a)(3)
The
judge found that the Respondent discriminated against Lisa Cogswell in violation
of Section 8(a)(3) in five ways: (1) a February 27 written warning for being in
the plant before the start of her shift; (2) a February 27 change to her work
schedule; (3) a March 8 memorandum restricting her from entering the plant’s
front office; (4) a March 18 written warning and demotion; and (5) a May 20
unfavorable review, demotion, and reduction in pay. While we agree with the judge, for the
reasons stated in his opinion, that the disciplinary actions of February 27 and
March 8 violated the Act,[19]
we find that the Respondent met its burden of proving that it would have taken
the same action it took on March 18 and May 20 even in the absence of Cogswell’s
union activities.[20]
1. Lisa Cogswell’s
March 18 warning and demotion
Before
March 18, Cogswell worked in the stockroom as the supply technician working
supervisor. Her duties included managing
and assisting with purchasing, shipping, receiving, and stockroom control of
inventory. Her other duties consisted of
issuing materials from the stockroom to employees and negotiating prices with
vendors. Cogswell testified that the
position required that those duties be carried out in a professional manner
with a positive attitude.
Cogswell’s
sour disposition had long been a concern of her supervisors. In previous performance evaluations, the
Respondent noted as an “Area to Improve” that Cogswell needed to “learn to work
with co-workers” and that Cogswell’s personal conflict with another employee
was affecting their performance and was noticed by people on the plant
floor. A December 2000 evaluation noted
that Cogswell was “rough around the edges when it comes to working with her
customers—plantwide—her approach is [so] sharp at times that it is hard for
people to work with her.” Cogswell’s
1998 and 2000 evaluations both mention Cogswell’s “rough” and “sharp” manner at
work.
Burns
became Cogswell’s supervisor in December 2001.
According to Burns, their relationship “started out very well,” but
quickly deteriorated. On December 20,
2001, Cogswell responded belligerently to Burns’ work-related question, and
Burns reprimanded her and demanded that Cogswell treat her in a professional manner. After that encounter, Burns began maintaining
a diary about her interactions with Cogswell.
Between December 20, 2001, and March 7, 2002, there were five entries
detailing Burns’ conversations with Cogswell about performance and attitude
issues. On March 11, Burns again
reprimanded Cogswell about her attitude and poor interaction with coworkers.
On
March 18, the Respondent, through Burns, issued a formal documented warning to
Cogswell covering a period from January through mid-March. Pursuant to the warning, Cogswell was demoted
from supply technician working supervisor to supply technician. The warning listed five performance-related
incidents[21] and two
specific attitude-related incidents[22]
as bases for the demotion. The warning
also said:
This
[demotion] at this time will not have a pay decrease, however if no improvement
is seen in the next 60 days, this will be reviewed and a pay decrease may be
forth coming to compensate for the type of work being performed. The decision for this removal in position is
based on supervisor requirements that at this time Lisa is not qualified to
perform. Attitude towards other
employees including those that report to a supervisor weigh heavily in this
decision. . . . Supervisors are to be example setters to other employees and
her attitude and performance are not examples we want followed.
At
the review of Lisa’s performance/attitude in 60 days it will be determined if
she qualifies to remain in the stockroom, a decrease in pay to compensate for
the work or if she will remain an employee of Intermet.
Our
analysis of whether Cogswell’s warning and demotion violated the Act is
governed by the test articulated in Wright
Line. Under that test, the General
Counsel must prove that antiunion animus was a substantial or motivating factor
in the adverse employment action. The
elements commonly required to support such a showing are union or protected
activity by the employee, employer knowledge of that activity, and antiunion
animus on the part of the employer. See
If
the General Counsel makes the required initial showing, the burden then shifts
to the employer to prove, as an affirmative defense, that it would have taken
the same action even in the absence of the employee’s union activity. See Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996).
To establish this affirmative defense, “[a]n employer cannot simply
present a legitimate reason for its action but must persuade by a preponderance
of the evidence that the same action would have taken place even in the absence
of the protected activity.” W. F. Bolin Co., 311 NLRB 1118, 1119
(1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99
F.3d 1139 (6th Cir. 1996).
The
judge determined that the General Counsel met his initial evidentiary burden
with respect to this demotion. We
agree. Around mid-March, Cogswell began
wearing a union button to work, and became open about her support for the
Nevertheless,
we find that the Respondent proved that it would have warned and demoted
Cogswell even in the absence of her union activity. The March 18 “formal written warning” explicitly
states that Cogswell’s attitude “weigh[s] heavily” in the decision to
demote. The record supports this comment
as it shows that Cogswell had a longstanding problem working with other
employees because of her attitude. The
Respondent documented this problem well before the organizing campaign and any
union activity on Cogswell’s part, in both her 1998 and her 2000 performance
evaluations. Soon after becoming her
supervisor, Burns also recognized Cogswell’s attitude problems. Indeed, almost immediately upon becoming
Cogswell’s supervisor, Burns began counseling her about her inappropriate behavior. Burns verbally reprimanded Cogswell about her
attitude at least twice in their first 3 months working together.
Burns
provided several examples of Cogswell’s performance failures, many of which
appear to stem from her sour disposition: she refused to assist employees with
their uniform cancellations, stating that “it wasn’t my job”; she refused to
return safety glasses to the stockroom, simply ignoring the request of an
employee whom she oversaw; she refused to assist an employee in researching a
delivery charge for an order of parts, despite the fact that she managed
inventory purchasing and shipping; she failed to schedule a meeting with
vendors as she was instructed to do; and she failed to review inventory as she
was instructed to do. Cogswell’s
position required that she perform each of these functions.[24]
Prior
to March 18, the Respondent had issued disciplinary warnings to other employees
and demoted and transferred them for poor performance and attitude. About August 8, 2001, Burns issued a “documented
warning” to employee Bill Hagar and transferred him from the PCP Foundry to the
Aluminum Foundry because of his failure to complete the tasks required of his
position there. Similarly, Burns issued
a “documented warning” to employee John Marriott for performance and attitude
issues on September 13, 2001. After a
subsequent suspension, Burns transferred Marriott to the finishing department because
of his performance deficiencies.
Also, and contrary to our colleague’s assertion, the Respondent did not undermine the validity of this discipline by failing to follow its established disciplinary procedure when Burns issued the “formal written warning” to Cogswell. Although that procedure does “generally” call for a “docu