Petition for Writ of Certiorari — Oil, Chemical & Atomic Workers International Union v. Avecor, Inc.
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No.
CCT 1 1991
IN THE OFFICE OF THE CLERK
Supreme Court of the United States
OCTOBER TERM, 1991
AVECOR, INC.,
. Petitioner,
NATIONAL LABOR RELATIONS BOARD,
, Respondent,
anc
OIL, CHEMICAL AND ATOMIC
WORKERS INTERNATIONAL UNION,
Intervenor.
Petition for Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
LYNN AGEE
(Counsel of Record}
DEBORAH GODWIN
AGEE, ALLEN, GODWIN,
Morris & LAURENZI
263 Court, Second Floor
Memphis, Tennessee 38103
(901) 528-1702
GREGORY MOONEY
General Counsel
KATHLEEN HOSTETLER
Assistant General Counsel
OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION
P.O. Box 2812
Denver, CO 80201
WILSON - EPgs PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001
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QUESTION PRESENTED
Whether the Board is required to consider evidence of
employee turnover subsequent to an employer's unfair
labor practices and a representation election, before de-
ciding to issue a bargaining order in all cases where the
employer’s unfair labor practices are less than pervasive
but nonetheless have the tendency to undermine union
majority strength and impede the election process (Gis-
sel IT cases) ?
(i)
TABLE OF CONTENTS
QUESTION PRESENTED .ooo....oo.o...occceececcccccccenccceees
So os et): SONS whsccueos
REASONS FOR GRANTING THE WRIT...
CONCLUSION |
APPENDICES:
A.
Opinion of the Court of Appea's (April 26,
te _ og eat PRS CORP EREPE FSD ETE de
Order of the Court of Appeals denying Sugges-
tion for Rehearing En Banc (July 3, 1991).
Order of the Court of Appeals denying Petition
for Rehearing (July 3, 1991) __
Revised Judgment of the Court of Appeals (July
25, 1991) .
Order ef Court of Appeals approving Revised
Judgment (July 25,1991) sees
Decision and Order of the National Labor Re-
lations Board adopting Administrative Law
Judge Decision of September 30, 1988 {(Septem-
ber 22, 1989)
(iii)
28a
29a
30a
35a
36a
iv
TABLE OF AUTHORITIES
CASES: Page
Amazing Stores, Inc. v. NLRB, 887 F.2d 328 (D.C.
Cir. 1989), cert. denied, — U.S. , 110
S.Ct. 1477 (1990) 6
Chemetron Corp., 258 NLRB No. 159 (1981) 8
Frank Bros. v. NLRB, 221 U.S. 701 (1944) 5, 6
G.PD., Inc. v. NLRB, 430 F.2d 963 (6th Cir.
1970), cert. denied, 401 U.S. 974 (1971) 6
Impact Industries, inc., 285 NLRB 2 (1987), enf’d.
denied, 847 F.2d 379 (7th Cir. 1988) 5
Long-Airdos Co., 277 NLRB 1157 (1985) 5
New Alaska Development Corp. v. NLRB, 441
F.2d 491 (7th Cir. 1971) 6
NLRB v. Atlas Microfilming, 753 F.2d 313 (3rd
Cir. 1985) 6
NLRB v. Crective Food Design, Ltd., 852 F.2d
1295 (D.C. Cir. 1988) 6
NLRB v. Drives, Inc., 440 F.2d 354 (7th Cir.),
cert. denied, 404 U.S. 912 (1971) 6
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) passim
NLRB v. Katz, 369 U.S. 736 (1962) 5
NLRB v. Koenig Tronworks, 856 F.2d 1 (2nd Cir.
1988) 7
NLRB v. L.B. Foster Co., 418 F.2d 1 (1969),
cert. denied, 397 U.S. 990 (1970) 6
NLRB »v. Lorillard Co., 314 U.S. 512 (1942) 6
NLRB v. Mountain Country Food Store, Inc., 931
F.2d 21 (8th Cir. 1991) 7
NLRB v. Western Drug, 600 F.2d 1324 (9th Cir.
1979) 7
NLRB v. WKRG-TV, Inc., 470 F.2d 1302 (5th
Cir. 1973) 7
St. Francis Fed’n of Nurses and Health Profes-
sionals v. NLRB, 729 F.2d 844 (D.C. Cir. 1984) 6
United Supermarkets v. NLRB, 862 F.2d 549 (5th
Cir. 1989) 6
STATUTES:
National Labor Relations Act. as amended
29 U.S.C. § 160(e) 2,4
TABLE OF AUTHORITIES—Continued
8(a) (1),29 U.S.C. § 158 (a) (1)
8(a) (3), 29 U.S.C. § 158 (a) (35)
OTHER SOURCES:
Note, “After All, Tomorrow Is Another Day”:
Should Subse quent Kvents Affect the
Bargaining Orders?, 31 Stan. L. Rev.
921 (1979)
Validity of
505, 512-
Pave
—“ -~
IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
No.
AVECOR, INC.,
Petitioner,
¥,
NATIONAL LABOR RELATIONS BOARD,
Respondent
and :
OIL, CHEMICAL AND ATOMIC
WorKERS INTERNATIONAL UNION,
lutervenor.
Petition for Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
The Oij, Chemical and Atomic Workers Internationa!
Union, petitions this Court to issue a writ of certiorari
to the United States Court of Appeals for the District of
Columbia Circuit to review the decision and judgment in
Avecor, Inc. v. National Labor Relations Board, Oil, Chem-
ical and Atomic Workers International Union, Inter-
venor, No, 89-1643 (April 26, 1991).
OPINIONS BELOW
The opinion of the court of appeals, is not yet reported,
and is reprinted in the App. to this Petition at la-27a.
The opinion of the National Labor Relations Board
]
2
(“Board”) is reported at 296 NLRB No. 94 (1989) and
is reprinted at App. 36a-123a.
JURISDICTION
The opinion and judgment of the court of appeals was
entered on April 26, 1991. A timely Petitien for Re-
hearing En Bane was denied on July 3, 1991. A revised
judgment was entered by the court of appeals on July
25, 1991. This Court has jurisdiction under 28 U.S.C.
$ 125411).
STATUTORY PROVISION
The pertinent statutory provision is Section 10(e) of
the National Labor Relations Act, as amended, 29 U.S.C.
S$ 160(e) which provides in relevant part as follows:
The Board shal] have power to petition any court of
appeals of the United States ... wherein the unfair
labor practice in question occurred or wherein such
person resides and transacts business, for the enforce-
ment of such order and for appropriate temporary
relief or restraining order... The findings of the
Board with respect to questions of fact if supported
by substantial evidence on the record considered as
a whole shall be conclusive. (emphasis added)
STATEMENT OF THE CASE
The Oil, Chemical and Atomic Workers International
Union (“OCAW”) petitioned for representation of the
production and maintenance employees of Avecor, Inc., a
smal! chemical pigment plant in Vanore, Tennessee. An
election was conducted on June 25, 1987; the Union lost
by a vote of twenty-two (22) to ten (10) with five (5)
challenged ballots. The Union filed election objections and
charges of unfair labor practices. Following hearings, an
Administrative Law Judge (“ALJ’) issued a decision on
September 30, 1988 concluding that the Company had en-
3
gaged in numerous unfair labor practices including un-
lawful threats, promises, interrogations and discharges.
The ALJ set aside the election results and ordered the
Company to bargain with the Union. The ALJ found
the Company’s violations sufficiently pervasive and coer-
cive, such that it would be “improbable that the use of
traditional remedies here would be sufficient to ensure
a fair rerun election.” (App. ll3a)
On the last day of the hearing the ALJ rejected the
Company’s proffer of a list of its employees as of May 27,
1988. The list was placed in the rejected exhibit file. The
ALJ noted “the Board ... has not included turnover as a
factor in determining the appropriateness of the bargain-
ing order remedy.” (App. 110a n.28) The Company
never alleged extraordinary employee turnover.
The Board adopted all of the ALJ’s findings and con-
clusions (with one minor exception) in a decision issued
September 30, 1988, less than one year later. The Com-
pany petitioned for review of the order and the Board
cross-petitioned for enforcement. The OCAW intervened.
The court of appeals upheld the Board’s factual find-
ings with respect to numerous unfair labor practices in-
cluding that the plant manager interrogated employees
about their Union activities and sympathies, that the em-
ployer’s agents threatened plant closure and the with-
holding of benefits should the employees choose Union
representation and offered to increase pay and provide
rewards should the employees reject the Union, in viola-
tion of ¢8(ai(1) of the National Labor Relations Act
(“NLRA’) 29 U.S.C. §158(ai(1). The court further
upheld the findings that the employer’s supervisors had
offered employees money to rescind their Union authoriza-
tion, and had threatened stricter rule enforcement should
the employees choose Union representation, (App. 4a-
13a) The court of appeals further upheld the unlawful
discharge of Jeffrey Tidwell] in violation of $8(a! (3) of
the NLRA, 29 U.S.C. § 158(a' (3), but found however
a ae TN Le Te
14a
employees and quality control employees, but exclud-
ing all office clerical employees, guards and super-
visors as defined in the Act.
ALJ Decision at 41. The parties subsequently disagreed
about whether this stipulated unit included two particular
employees. Avecor argued that they were “plant cleri-
cals” who belonged in the unit; the union contended that
they were “office clerical employees’ who belonged outside
it. Because the two did not sign union authorization
cards, their presence would erode and for some periods
extinguish the union’s majority support.
The ALJ described the two employees’ work locations,
duties, and other aspects of their jobs. Order entry clerk
Lisa McWaters worked in the main office, alongside the
office clerical employees. Lab secretary Diane Byrum
worked in the lab manager’s office, which was adjacent to
the main office. The ALJ wrote:
I conclude that McWaters and Byrum’s work inter.
ests were more closely associated with that of office
clericals than unit employees by virtue not only of
their work location but also their job duties and
working conditions. Neither performed production
work of any type even on a sporadic or part time
basis. They worked different hours from most of the
production employees. That Respondent itself viewed
ithem] as being more closely associated with clerical
employees in interests was demonstrated by its fail-
ure te grant them the 40 cent per hour increase
granted the unit employees in May. The lab manag-
er’s use of Byrum to type a personne! memo reflects
the same point. While the paperwork generated by
Byrum and McWaters related to production work
their direct contact with unit employees does not
appear to be extensive or significantly greater than
their contact with office clericals. Accordingly,
‘onclude that Byrum and McWaters do not have
sign)
ALJ
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30a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 89-1643
AVECOR, INC,,
Petitioner,
NATIONAL LABOR RELATIONS BOARD,
Re sponde wl,
and
Oi, CHEMICAL, AND ATOMIC WORKERS
INTERNATIONAL UNION,
Intervenor.
REVISED JUDGMENT
(Filed July 25, 1991]
Before: BUCKLEY, WILLIAMS and THOMAS, Circuit
Judges.
THIS CAUSE came on to be heard upon a_ petition
filed by Avecor, ine., to review an order of the Nationa!
Labor Relations Board issued against said Petitioner, its
officers, agents, successors, and assigns, on September 22,
1989, and upon a cross-application filed by the National
Labor Relations Board to enforce said order. The Court
heard argument of respective counsel on Ocotber 39,
1990, and has considered the briefs and transcript. of
record filed in this cause. On April 26, 1991, the Court
being fully advised in the premises, handed down its
opinion granting in part and vacating in part enforce-
ment of the Board’s Order and remanding the case to the
32a
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges
previously enjoyed and make him whole in the manner
set forth in the section of the Administrative Law Judge’s
Decision entitled “The Remedy” for any loss of earnings
he may have suffered by the reason of the discrimination
against him.
(b) Expunge from its files any reference to the
discharge of Jeffery Tidwell and notify him in writing
that this has been done. Avecor may, however, issue him
a retroactive letter of reprimand, see Administrative Law
Judge Opinion at 27, and amend its files to reflect that
fact.
(c) Preserve, and upon request, make available to
the Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under
the terms of this Judgment.
(di) Post at its Vonore, Tennessee place of busi-
ness copies of the attached notice marked “Appendix.”
Copies of the notice on forms provided by the Regional
Director for Region 10 of the National Labor Relations
Board ‘Atlanta, Georgia), shall be posted by Petitioner
immediately upon receipt thereof, and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Petitioner to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the said Regional Director, in writing,
witain 20 days from the date of this Judgment, what
steps Petitioner has taken no compiy herewith.
IT IS FURTHER ORDERED AND ADJUDGED by
the Court that the case is remanded to the Board for
further proceedings consistent with the Court’s opinion.
52a
date he signed a union authorization card, he asked to
talk to Willoughby. The two engaged in conversation on
the plant floor where Hurst told Willoughby that he was
depressed and fearful that he might be laid off like Lione!
Smith, a former supervisor of Respondent, and John
Armstrong, an alleged discriminatee in this case.” Wil-
loughby told Hurst that as far as he was concerned
Hurst was not going to be laid off or fired and added
that Hurst was a good worker whose work warranted no
complaints from Willoughby. However, Willoughby asked
Hurst if he had gone to the Union meeting and Hurst
admitted that he had. Willoughby also asked Hurst if
he had signed a union authorization card, and Hurst
answered affirmatively.
A slightly different version was related by Willoughby
testified that it was Hurst who initially mentioned
the Union. Thus, when Willoughby asked what was
bothering Hurst to cause his depression Hurst responded
that he was mixed up in this “union thing.” Willoughby
admittedly then asked Hurst what he meant and whether
he had signed a union card. Hurst replied that he had
signed a card and was fearful that he would lose his job.
Willoughby then said Hurst was a good worker and gave
him assurances against being fired.
It is clear that Hurst initiated the conversation with
Willoughby because of his concern for being fired. Under
these circumstances I find Willoughby’s version of the
conversation entirely plausible and believable. His candid
admission that he inquired whether Hurst had signed a
union card enhances that version. I credit that version
and find Hurst
ially inc'cated to Willoughby an_ in-
volvement in union activity as a basis for his concern
about being fired. In view of this revelation Willoughby’s
subsequent question about Hurst’s signing a card did not
“In light of the reference to John Armstrong who was discharged
on Anril 29 the exchange between Hurst and Willouyhby must have
been after April 29.
54a
Accordingly, I credit White and find that since it was not
established that White had overtly displayed his union
support prior to that time Willoughby’s question of White
violated Section 8(a) (1) as alleged.
Martin and Hurst ..so testified in support of complaint
allegations that Willoughby threatened employees with
more onerous working conditions due to union activities,
threatened employees with reprisals, a curtailment of Op-
ations, and a loss of benefits if employees engaged in
union activities. Martin’s testimony was also relied upon
by the General Counsel to support complaint allegations
at Willoughby promised employees unspecified benefits
for refraining from union activities and unlawfully soli-
cited employees to withdraw their support for the Union
and provided them assistance in this regard. Other wit-
nesses corroborated various aspects of the testimony of
Martin and Hurst and still others testified as to other
conduct of Willoughby of the same nature.
Martin’s bnkcianti placed most of Willoughby’s threat-
ening remarks in a speech to assembled employees around
3:50 p.m. on or about May 14, when a general pay raise,
also hides ) be unlawful and discussed further below.
was Pata Martin related that at the —
neeting Willoughby told employees that they had a union
they would be starting out on a minimum vw ‘rage scale
and they w eri have the right to speak to the “main
people” like they had before. Further, Willoughby said
that Maras mistakes “wouldn’t be let go as easy” so
that if employees ‘messed up” on their machines they
uld be “wrote up” a lot quicker than before the Union
came in, and the foremen would be “hassling” them more
seietlch was less certain about the date of the employee
meeting at which Willoughby spoke but confirmed that
Willoug ehby sate if the Union came in they wouid
off paying minimum wage. He added that Willoughby
said that all activity with respect to hiring people or
bringing in new machines would be set aside until “all of
c
56a
exceptions to the rules, and to do otherwise would estab-
lish precedents that would haunt them later. He could
—— no statements regarding employees getting more
age increases in the future without a union and denied
saying that the Respondent would not allow a union.
Klarich generally supported Willought y’s testimony re-
garding the May 14 meeting, but appeared more vague in
his recollections. However, he admitted that he had told
employees that they would get more raises without a
union.” McLean testified but did not address the remarks
at the May 14 meeting. Ed Lale, Sr., admitted his at-
tendance at the meeting but his recollection was clearly
vague regarding what was said.
The frailty of human recollection is such that people
frequently report their own conclusions regarding com-
ments made to them or in their presence as the substance
of the comments themselves. Moreover, individuals testi-
fying about their own remarks often relate what they
said or, at least, intended to say in more explicit lan-
guage than that actually used. These tendencies make
particularly difficult the determination of violations of
Section 8(a)i(1) of the Act which frequently turn on
nuances in emphasis and the use of precise wording. This
difficulty is exacerbated where only a few witnesses of
much larger group who heard the comments testify on the
subject, and most of these cannot be regarded as unbiased.
However, considering all the testimony on the May 14
meeting including admissions of Respondent’s witnesses,
and my sense of the record as a whole. I am persuaded
that Willoughby told employees, as Martin and Hurst
* Respondent in its brief contradicts the record where it shows
this admission by Klarich, and contends that its counsel’s note:
ttached to the brief, contradict. the udmission. There was no
motion to correct the record filed and served on the other parties
in this case, however. Accordingly, and in the absence of any agree
ment among the parties regarding any record changes, the record
will stand in its present form.
60a
problems. White responded by noting that his problem
was that his supervisor Joe Ingram would not speak to
him at the time. Lale said he would have White and
Ingram to get together to see what could be done. Since
there is no evidence that Willoughby, as opposed to Lale,
solicited any grievances of employees, at this meeting |
must conclude that the Respondent did not through
Willoughby unlawfully solicit grievances. The issue re-
garding such a violation attributable to Lale will be dis-
cussed below.
There, is little disupute concerning the allegation in-
volving Willoughby’s uniawful solicitation of employees
to withdraw their union support. Martin testified, and
Respondent concedes, that at the May 14 meeting with
employees Willoughby distributed to all employees a ‘“No-
tice” to employees with copies of a form letter to Union
District Director John Williams attached along with an
unstamped envelope addressed to Williams. The ‘ Notice”
related that a number of employees had asked what they
could do about “cancelling out of the Union.” The Notice
further indicated that employees could try to cancel the
Union obligation, and if they wanted to do it, and it was
strictly up to them, they could write a letter to the Union
like the one atiached. The notice signed by Vice-President
McLean and Willoughby requested that employees let
them know if they had any other questions or needed their
help, The attached letter addressed to union representa-
e Williams stated.
[am an employee of Avecor, Inc. I want to cancel
my interest in and obligation to your union. [ do not
want to be a member of or represented by your
union.
Martin testified that only employee Mac Coley asked
any questions at the meeting regarding the “Notice” or
withdrawal procedure. However, Martin did not specify
]
‘ ] }
the questions asked by Coley and related only that Coley
expressed interest in the notice and attached letter.
——— —eeSS——_—_a_aaQgaa LS — — — ~ _ SS RREEEREREERREEREREnIE se a
T6a
throuh its witnesses denied that the discharge was re-
lated to union activity in any way.
Respondent’s evidence regarding the alleged misconduct
of Tidwell on April 24 as well as on prior occasions in-
volving a former black supervisor, Lionel Smith, was set
forth primarily in the testimony of Farrell. Farrell testi-
fied that he witnessed an encounter between third shift
Foreman Smith and Tidwell during the first part of the
year when Tidwell cursed Smith and called him a black
SOB. Farrell testified that he complained to Supervisor
sandy Thomas the following day about this conduct.
Thomas confirmed Farrell’s complaint in her testimony
and added that she discussed the matter with both Smith
who verified the account,'? and Tidwell. Thomas noted on
a personal calendar that she gave a verbal warning to
Tidwell on this matter on February 11, and she testified
that Tidwell was receptive to her critical remarks and
warning that such conduct could cost him his job. Thomas
also testified that even though she was not Tidwell’s direct
supervisor at the time she had given Tidwell a verbal
warning on November 21, 1986 based upon a_ similar
encounter with Smith. No written warnings were issued
and no notation of a verbal warning was placed in
Tidwell’s file on either of these occasions.
Farrell testified that on the evening of April 24 Tidwell
encountered two “retains” '™ one of which involved a
color problem which Tidwell found difficult to correct.
Farrell related that Tidwell’s response was to loudly
curse and kick jugs and cans around the laboratory and
to complain that the job was more than one man could
handle. Farrell conceded that Tidwell’s conduct was not
' Smith, having been laid off by Respondent around April 24, was
net called as a witness in this matter by any party.
'S Retains were defined as product samples taken from the pro-
duction line for testing by quality control for conformity with lab
samples. Production lines are stopped while the samples are
approved,
77a
directed at Farrell as a supervisor. While there was no
evidence that Farrell undertook any disciplinary action
himself or made any attempt to chastise Tidwell for his
behavior, Farrell testified he did report the matter to
both Thomas and Lab Manager Poliard the next work
day and complained that Tidwell was “killing his produc-
tion” and that he wanted Tidwell off the shift.
After receiving Farrell’s complaint on April 27 Thomas
again talked to Tidwell telling him he could not “blow
up” at the supervisors. Tidwell replied, according to
Thomas that he understood and was sorry ard that he
had just lost his “cool.” Subsequent, to her talk with
Tidwell Thomas testified she reported the incident includ-
ing her discussion with Tidwell to Lab Manager Pollard
who inquired if she thought her remarks to Tidwell had
done any good. Thomas reported she believed that they
had. She was not aware of the decision to discharge
Tidwell until minutes before it took place when she
learned from Willoughby on April 28 that Tidwell’s con-
duct could no longer be tolerated.
Pollard did not testify, but Respondent does not dis-
pute Tidwell’s testimony regarding his discussion with
Pollard and the discipline options offered Tidwell. Testi-
mony was offered, however, regarding the reversal of
Pollard’s decision on Tidwell’s discipline. Thus, Klarich
testified he learned of the incident, apparently the second
one, between Tidwell and Smith and was incensed par-
ticularly by what he viewed as racial slurs directed at
Smith by Tidwell. He gave orders to Willoughby and
Vice-President McLean that if Tidwell “ever again
sounds off or loses control” he was to be “fired on the
spot.” '' He subsequently learned on April 28 in a tele-
'™ Klarich related that he talked to Tidwell directly about the
matter and told him he didn’t want to sce it happen again. How-
ever, he did not specifically warn him that he would be terminated
if it happened again. Further, it is not clear that he teld Tidwell
exactly what he didn’t want to see happen again.
78a
phone call from McLean when Klarich was in California
that Tidwell had again been involved in an incident and
that Pollard had offered Tidwell alternatives amounting
to punishment less than dismissal. Without knowing fur-
ther details Klarich ordered Pollard reversed and Tidwell
discharged. Willoughby and McLean generally corrobo-
rated Klarich’s testimony in the foregoing respects.
Willoughby explained in his testimony that he had not
been aware of Tidwell’s conduct on Apri! 24 and Pollard’s
response to it until he was called to McLean’s office on
April 28. With respect to the refusal to allow Tidwell to
return to his old position as a sample maker Willoughby
said it was not his policy to allow employees to revert to
lesser positions if they were unable to perform the jobs
to which they had been promoted. He acknowledged, how-
ever, that at the time of the discharge Tidwell had
pointed out that Willoughby had allowed an employee
utilized as a lineman to remain as a Banbury operator,
a lesser position. However, Willoughby distinguished the
situation by pointing out the employee involved had been
reduced to the lower position only after the employee
had given notice of intent to quit, a notice he subse-
quently withdrew after a new person was trained in his
higher rated job.
While Klarich had testified that he had instructed
Willoughby to give a written warning to Tidwell after
the February incident with Smith, Willoughby failed to
corroborate such an instruction. It is clear that Tidwell
did not in fact receive a written warning for the incident.
I am persuaded by the record as a whole and that testi-
mony which I deem either uncontradicted or otherwise
credible that Tidwell encountered difficulties with the job
on April 24 which he reacted to in the manner related by
Farrell. Thus, a basis for his discipline appears to have
existed. But his conduct was specifically different in type
from that which he had previously been disciplined, in-
subordinate conduct to a _ supervisor. Farrell never
79a
claimed that Tidwell was insubordinate to him on April
24. Under these circumstances Pollard’s response to Tid-
| well’s conduct after considering Thomas’ input appears
as an imminently reasonable response. After all, no
evidence presented herein establishes that Tidwell was
at fault in the inability to remedy the quality problems
he encounted on April 24. It is in Respondent’s reversal
action that I believe Respondent has demonstrated that
ulterior motivation which persuades me that Respondent’s
discharge of Tidwell was pretextual and responsive to
his union activity. Obviously, Puxard had never been
advised of Respondent’s claim of a prior determination
to discharge Tidwell for sounding off or losing control.
The fact claimed in Willoughby’s testimony that Pollard
was a relatively new lab manager only having been
“aboard” 3 or 4 weeks!’ at the time is no excuse for
failing to advise him of past job deficiencies of those
relatively few people under his supervision. Clearly there
was nothing in Tidwell’s personnel file which would call
Pollard’s attention to any prior alleged misconduct of
Tidwell, and while Pollard did confer with Thomas re-
garding her assessment of the Tidwell situation and
background, she clearly related nothing, and obviously
was aware of notihng, which would preclude Tidwell’s
continued employment.
Respondent’s reversal of Pollard’s decisions regarding
Tidwell is strong evidence of its unlawful motivation.
But further evidence of such motivation is found not
only in the timing of Tidwell’s discharge at the very out-
set of the union activity and Respondent’s awareness of
it. but also in Respondent’s failure to conduct any inves-
tigation of Tidwell’s conduct independent from that of
1% Willoughby’s estimate of how long Pollard had been employed
as of April 28 was never substantiated. On the other hand, it
Gear that Pollard signed a payroll change form for Tidwell, as di
Willoughby, on April 1 giving Tidwell a raise. It would thus appear
that Tidwell had been emploved by Respondent a sufficient period
tim. prior to April 1 to contribute to the evaluation of Tidwell
80a
Pollard. Klarich admittedly did not seek to ascertain any
facts of Tidweil’s conduct on April 24 before directing
the reversal of Pollard. There was no concern shown by
Klarich for whether Tidwell had repeated the offense of
issuing racial slurs which Klarich had found so repre-
hensible in the earlier incident. Even the fact that
Klarich issued the discharge decision by telephone reflects
the highly unusual treatment of the Tidwell situation.
Klarich could not recall a specific incident of having
made a previous decision to discharge a rank and file
employee by telephone.
The fact that Respondent discharged Tidwell within
one month of his last wage increase also belies its present
contention regarding the gravity of Tidwell’s April 24
conduct. It is to be particularly noted that Willoughby
signed the payroll change form granting Tidwell’s raise
even though that form showed that Tidwell’s conduct was
“good”. Willoughby noted no exceptions to this marking
of the form notwithstanding his claimed knowledge of
Tidwell’s prior misconduct in February, a time only 6
weeks earlier, and Klarich’s alleged instructions to dis-
charge Tidwell for any subsequent misconduct. The grant
of an increase and the approval of the form so marked
is clearly inconsistent with the position taken by Re-
spondent at the time of Tidwell’s discharge.
Finally Respondent’s refusal to consider a demotion
for Tidwell as an alternative to discharge reflects a
steadfast determination to be rid of Tidwell, a determi-
nation which points again to discriminatory motivation.
Willoughby’s failure to advise Pollard of the policy
against demotions again belies its existence as anything
other than one applied on a selective basis.
Considering the foregoing I do not believe that testi-
mony or evidence of Respondent’s witnesses to the effect
that Tidwell’s discharge was for cause unrelated to union
considerations. Rather, I conclude Respondent has failed
to rebut the General Counsel’s prima facie case that the
Sla
discharge of Tidwell was responsive to his union activi-
ties. Accordingly, I find as the complaint alleges, that
the discharge of Tidwell was in violation of Section
8(a) (3) & (1) of the Act.
b. John Armstrong
Armstrong was initially employed in October 1985 but
was laid off after two weeks. He was recalled in April
1986 and worked until his discharge on April 29 for
“poor work performance.”” Armstrong, a utility worker
at the time of his discharge, testified that he was ap-
proached by Rodgers on April 24 about attending a union
meeting and joining the Union. Armstrong expressed in-
terest but did not attend the meeting. However, he
testified he was given a union authorization ecard by
employee Ed Hurst about April 25 and executed the
eard on that date and returned it to Hurst."
Joe Ingram’s approach to Armstrong regarding the
Union on April 27 has already been related. Armstrong
related that also on April 27 he overheard Foreman
Darrell Akins tell leadman Lance Coon that if Armstrong
asked for any kind of a day off or anything, Akins
wanted him fired, and Akins then asked Coon to ask
Armstrong if he had anything to do with the Union. On
cross-examination Armstrong expanded on the Akins-
Coon exchange saying Akins told Coon that if Armstrong
was late one minute, “I want you to fire him,” and “If
you find out he’s got anything to do with the Union, I
want you |to| get rid of him and I want you to tell me.”
Armstrong neglected to include either version of Akins’
16 Armstrong’s card bears the date of April 25 but was entered
with a different pen than that used to enter the other information,
and Armstrong said he did not date it. Ed Hurst denied that he
had spoken to Armstrong about a union card. Armstrong was less
than a model witness and his recall was confused and uncertain.
Hurst was clearly more positive and I credit his denial that he
secured Armstrong’s card. It is clear, however, based on the testi-
mony of Union representative Hendrix whom I credit that Arm
strong’s card was given to Hendrix on April 28 by Rodgers.
82a
alleged remarks in either of two written prehearing in-
vestigation statements given the Board, although he had
referred to questions by Coon about union activity.
On April 28, according to Armstrong, he was assigned
to run the 1B-Banbury machine around 11:00 a.m. re-
placing employee Jerry Millsaps. He noticed after run-
ning the machine 15 to 20 minutes that a large amount
of the plastic material being processed was leaking out
of the machine’s seals. Such leaking was a normal con-
dition but if excessive it could interfere with production
and even damage the machine. Armstrong conceded that
it was the function of the operator of the machine to
periodically clean off the excess plastic, either using re-
lief machine operators or, when necessary, shutting down
the machine before the build up of plastic at the seals
got excessive. Armstrong testified that the buildup of
plastic leaking from the seals was greater than he had
even seen, and he told Neal Shaw, the line operator on
the floor below whose operation in part was fed by
Armstrong’s machine, that he needed to shut the machine
down. Shaw told Armstrong to keep operating and twice
refused Armstrong’s request to summon Foreman Akins.
Ultimately Shaw did call Akins who, upon seeing the
problem, shut the machine down and berated Armstrong
for letting the condition occur. Armstrong admitted that
the machine was down for 2'% to 3 hours during which
time Armstrong and maintenance man Fred Lawson re-
moved the plastic buildup by chipping away at it with
various tools including crow bars and hammers.
On the following day, Akins advised him that Wil-
loughby and production manager Denver Millsaps wanted
his job. Akins then terminated him saying that Arm-
strong had too many reprimands. Thereafter, Armstrong
talked to Willoughby and asked why he had been laid
off. Willoughby responded that Armstrong was not laid
off but was fired. Nevertheless, according to Armstrong’s
testimony, Willoughby said he would look into the matter.
&3a
The elements of the prima facie case of a violation of
Section 8(a) (3) and (1) in Armstrong’s discharge as
argued by the General Counsel are Armstrong’s involve-
ment in Union activity, Respondent’s knowledge of that
activity inferred on a small plant-small community basis,
Respondent’s union animus as demonstrated by its con-
duct violative of Act in other respects, the alleged threat
of Akins overhead by Armstrong, the timing of the
discharge coming so close to the union activity, and the
absence of valid cause for the discharge.
Respondent’s evidence regarding the discharge of Arm-
strong was set out primarily in the testimony of first
shift production foreman Akins. Akins described Arm-
strong’s general job performance as poor and claimed he
frequently talked to him about it.’ In the preceding 12
months Armstrong had been given two “write ups” re-
lated to job performance and three related to excessive
tardiness and absenteeism,'* The latest of which was
dated April 27, although Akins testified he had already
spoken to Armstrong about it the preceding Friday.
Akins testified that on April 28 one of his regular 1B-
Banbury machine operators, Jerry Millsaps was absent
and another one, Martin, was late. Thus, he had to put
Armstrong on the machine at the beginning of the shift,
and Akins testified he observed that the seals on the
machine were clean at the time. Akins also testified that
around 10:00 a.m. that morning he noted that the seals
on Armstrong’s machine had become excessively jammed
with layered plastic, and obviously had not been cleaned
17 Armstrong admitted in his testimony that Akins “tried to stav
after me all the time.”
18 Armstrong on direct examination acknowledged only one prior
warning of any type. On cross-cxamination he was confronted with
the additional warnings purportedly signed by himi. He denied three
prior warnings and claimed the signature was not his. A comparison
of Armstrong’s purported signature on the warnings with a docu-
ment executed by him at the time of his discharge lead me to the
conclusion that the purported signatures are authentic.
84a
since it was started up that morning. Akins, contrary to
Armstrong’s testimony, said he had not been called by
anyone to Armstrong’s machine. After noting the prob-
lem he called for the machine to be shut down and called
the maintenance man to undertake the cleanup, a process
that took more than two hours before the machine could
be put back in use.
Later the same day, according to Akins, he complained
to Willoughby about Armstrong’s actions and asked Wil-
loughby what to do. Willoughby told Akins to review
Armstrong’s personnel file and do whatever he wanted.
Akins did so, noted Armstrong’s prior reprimands, and
decided to discharge him. He began filling out a dis-
charge notice on a standard warning notice but did not
complete it. The discharge paper was reviewed and re-
written by production manager Millsaps on the following
day and the discharge was then effectuated.
Millsaps testified that he made the decision to discharge
Armstrong but it was based on Akins’ recommendation.
He explained that he rewrote Akins document because
it was dirty, and had some words misspelled.’
I have previously found herein that Armstrong was
incredible with respect to certain 8(a)(1) allegations.
His testimony regarding the details of his discharge I
likewise find incredible. His failure to tell the Board
investigator of Akins’ alleged instructions to Coon regard-
ing discharging Armstrong constitutes a critical omission
that warrants the conclusion that such alleged instruc-
tions to the extent they involved union activity were a
pure fabrication by Armstrong. I credit Akins and Mill-
saps where their testimony contradicts Armstrong’s. I
conclude that Armstrong did not keep the Banbury seals
sufficiently clean and that clear cause for disciplinary
1 That it was not unusual for Millsaps to make changes in docu-
ments is demonstrated by the uncontradicted fact that he had
changed one of Armstrong’s prior warnings in November, 1986.
85a
action existed. Moreover, assuming arguendo, that Re-
spondent was aware of Armstrong’s union inclinations,
Respondent’s decision to terminate Armstrong appeared
entirely reasonable in light of his reprimand record and
his own admissoin that Akins was always after him
which clearly reveals that Armstrong was a marginal
employee. Having credited the validity of Respondent’s
basis for Armstrong’s discharge I conclude Respondent
has demonstrated that Armstrong would have been dis-
charged even in the absence of his union activity. I
therefore find no violation of Section 8(a)(3) and (1)
of the Act in his discharge.
ce. Leroy Hamby
Hamby was employed initially by Respondent on a
temporary basis as a maintenance helper in early Janu-
ary. Around March 27 Hamby’s supervisor, maintenance
manager Larry Murphy, gave Hamby an option of be-
coming janitor or taking a layoff. Hamby chose to take
the janitor position. In this capacity he was responsible
for cleaning the lunch room, restrooms, plant and ware-
house floors, and some supervisors’ offices. According to
Hamby’s testimony, he was told the first few days on the
janitor position that he was doing a good job by various
supervisors including Murphy, Millsaps and Ingram.
Hamby further testified that he was never tcld that he
was not doing a good job, and was completely unaware
of any dissatisfaction with his work performance prior
to his discharge on 1 May.
Hamby signed a union authorization card for Rodgers
in the plant on April 27. He had been aware of the
advent of Union activity from a conversation with
Rodgers on April 24 when Rodgers had initially in-
quired of Hamby whether he would sign a union ecard.
The conversations Hamby had with Millsaps and In-
gram regarding the Union have already been set out
above. On May 1, Murphy called Hamby to his office
a
R6a
where he told Hamby that he was going to have to let
him go because he wasn’t doing his job. Hamby testified
he asked no questions of Murphy regarding the discharge,
but added that he did attempt to inquire of Willoughby
the reasons for his “permanent layoff,” but Willoughby
was too busy to give him a response. Respondent pre-
pared a separation notice for Hamby stating as‘ reason
for the discharge: “Lacking in job efficiency.” That
reason is also found on a reprimand form executed by
Murphy on 1 May.
tespondent’s evidence regarding the basis for Hamby’s
discharge was expressed through Murphy. Murphy, who
testified that he supervised the maintenance mechanics,
helpers, and the janitor, testified Hamby was hired as a
temporary employee to assist th emaintenance mechanics
in connection with some expansion work, and that while
Hamby had indicated prior experience in such work
Murphy found that his job performance was lacking. He
testified that he had talked with Hamby several times
and told him he was not performing adequately. Never-
theless, because Hamby had earlier expressed interest in
a permanent job, Murphy offered Hamby a position as a
janitor when the job became available, and Hamby ac-
cepted the position even though it involved a reduction in
his hourly rate of pay.
According to Murphy, Hamby performed well as jani-
tor for 2 to 3 weeks but then Murphy observed that he
began to hurriedly and inadequately do his duties and
thereafter begin annoying people on the plant floor by
standing and talking to them. Murphy testified he au-
vised Hamby several times that he could not tolerate that
and that if Hamby ran out of things to do he should
report to Murphy. Thereafter, Hamby would briefly im-
prove. Murphy related that Willoughby also noted
Hamby’s standing and talking in the plant and com-
plained to Murphy. Murphy testified that he initially
decided to discharge Hamby during the week prior to
&7a
May 1 and monitored him closely thereafter, finally de-
ciding to discharge him on May 1. Murphy conceded he
had given Hamby no prior formal or written warnings
but claimed it was not his practice to do so. He claimed
that he had previously discharged an employee on Novem-
ber 26, 1986 for poor quality werk, and had only given
the employee “verbal counseling” prior to the discharge.
Finally, Murphy denied that union activity was a factor
in the discharge of Hamby.
If one accepts the testimony of Hamby he was not
warned regarding the inadequacy of his work and the
failure to warn would undermine the validity of Respond-
ent’s contention regarding the basis for his discharge. J
have previously found Hamby to be a credible witness
herein, and I credit him in this instance also. Murphy
impressed me as a less reliable witness with a tendency
to exazgerate, While Murphy testified that Hamby’s per-
formance as a janitor the first 2 or 3 weeks were good,
he nevertheless at one point testified that Hamby from
the beginning day as a janitor stopped daily and talked
to leadman Lance Coon 10 to 15 minutes at a time. This
inconsistency Gemonstrates a desire to overemphasize any
inadequacy of Hamby. Moreover, to the extent that
Hamby talked to other supervisors and employees during
the work day there was no evidence that he interfered
with their work. Indced, foreman Akins, one of those to
whom Hamby allegedly habitually talked, denied there
Was any interference with his work or that of his em-
ployees by virtue of such talking. There was no evidence
that there was any supervisor involved in any talks with
Hamby complained to Murphy about them. Finally, there
was no evidence submitted, other than Murphy’s subjec-
tive conclusions which would support the fact of Hamby’s
werk inadeqnacy. No details were provided regarding
Homby’s failure to clean any specific area or perform
ny notwithstanding Murphy’s claim
that he closely monitored Hamby during the last week of
his employment. Accordingly, and in the absence of prior
venifie psconed ta
88a
warning, Hamby’s discharge during the first week of the
overt union campaign and 4 days after he signed a union
authorization card is highly suspect.
The weakness of the General Counsel’s case in Hamby’s
discharge is found in the absence of direct evidence that
Respondent was aware of Hamby’s specific union involve-
ment. The Charging Party argues that such knowledge
may be inferred on the basis of a small plant doctrine as
applied by the Board in Permanent Label Corp., 248
NLRB 118 (1980) and Coral Gables Convalescent Home,
Inc., 234 NLRB 1198 (1978). The Board has long held
that knowledge of an employee’s union activity may be in-
ferred from the record as a whole. See Darbar Indian
Restaurant, 288 NLRB No. 62 (April 20, 1988) ; Grey’s
Colonial Acres Boarding Home, 287 NLRB No. 89 (Dec.
16, 1987). See also Wiese Plow Welding Co., Inc., 123
NLRB 616 (1959). I believe such an inference is war-
ranted here. Respondent employed less than 40 unit em-
ployees, and the plant was located in a small community.
It was aware early on of union talk among its employees
and specifically aware of the first union meeting after
the second shift on April 24. Murphy himself was ad-
mittedly aware of the union activity on April 27. Hamby
signed his union card at the plant on April 27 after talk-
ing to Bucky Rodgers in both the plant’s parking lot and
the locker room. Rodgers was an individual conceded by
some of Respondent’s supervisors including Thomas, to be
the most likely union supporter at the time. Murphy con-
ceded that he closely monitored Hamby beginning the last
week of Hamby’s employment. Hamby’s discharge fol-
lowed within 4 days the signing of his u ion card, it fol-
lowed certain 8/a)(1) conduct of Respondent already
found, and the discharge was based upon unsubstantiated
reasons.
Considering all the foregoing, I conclude it may be
fairly inferred that Respondent was aware of Hamby’s
union involvement. I further conclude that the timing of
89a
his discharge coupled with Respondent’s union animus
demonstrated by violations of Sections 8(a) (1) found
herein and the absence of prior warning regarding his
allezed work deficiencies clearly establish a prima facie
ease that the discharge of Hamby was a response to his
union activity and constituted a violation of Section
8(a) (3) & (1) of the Act. Since I do not credit Respond-
ent’s evidence that Hamby had previously been warned of
his job performance and since [ have concluded that
Hamby’s work inadequacies were not credibly established
by Respondent on this record I find that Respondent has
failed to rebut the General Counsel’s prima facie case. I
conclude that Hamby’s discharge viclated Section 8(a) (3)
& (1) of the Act as alleged.
d. James R. White
White signed a union authorization card at the union
meeting at the Vonore filling station on April 24.°° He
served as a union observer during the 25 June election.
Having been hired by Respondent in May 1985 White last
worked as a liquid color mixer mixing what he referred
to as “hazardous chemicals” and pigments. White testi-
fied that on several occasions he had made complaints to
Ingram and Willoughby about the lack of ventilation in
his work area, the lack of appropriate respirators, and the
presence of smoke and minute particles (pearl) floating
in the air resulting from the production process. White
testified that the conditions prevailing were physically
affecting him and Don Cordell, the employee with whom
he worked. The last complaint White voiced to Ingram
cecurred shortly after the election when, according to
White, he protested the absence of ventilation in his area.
Ingram stated Respondent was not going to put fans in
White’s area.
The next day following White’s last complaint to
Ingram, White was called to the plant conference room
20 While he dated the card April 23 White conceded this date was
in error.
S0a
where he was confronted by Ingram, Vice-President
McLean, and supervisors Murphy and Millsaps. McLean
related that the conference was regarding the incident
between White and Ingram the preceding night. White
took that as an opening to voice more complaints about
the fumes in his work area, complained that he was get-
ting sick from it, and added that if they had to carry
him out on a stretcher he would be back with a lawyer.
He further volunteered that the reason he thought they
needed a union there was “on account of health and safety
violations.” *' Nevertheless, still according to White,
McLean, apparently referring to the exchange the night
before between Ingram and White, said he wasn’t going
to have White talking to his supervisors that way. White
denied herein that he nad used any profanity or vulgari-
ties in talking to Ingram other than to tell him to “clean
this damn place up.” He admitted, however, that pro-
fanity was not uncommon in the plant.*”
On 18 August, according to White, he observed
Willoughby talking to Murphy at the plant time clock and
decided to complain to Willoughby that Ingram was no
longer speaking to White. White approached Willoughby,
voiced his complaint and, according to White, Willoughby
“blew up,” told White if he didn’t like it he could quit,
and began yelling at White. White told Willoughby he
could not talk to White that way and if he would just
give White a layoff White would “go to the house.’”’ White
further related he told Willoughby that he would go back
to work, but added, “I’m not your trash.” Willoughby
told him if he wanted to be fired, he was fired and pro-
“l White testified, without contradiction, health and safety was a
big issue in the union organization campaign.
“- While White testified that nothing came of this meeting, Re-
spondent produced a written warning dated 6 August signed by
McLean accusing White of verbally abusing Ingram on 5 August,
advising White that this was intolerable, and warning him that it
Was a serious violation of work standards.
9la
ceeded to clock White out. Willoughby then told him to
get out before he was thrown out.
It is the General Counsel’s theory that White had en-
gaged in no misconduct warranting his discharge, and
that in actuality the discharge was provoked by White’s
union involvement Respondent’s knowledge of which was
clearly demonstrated by White’s serving as a union ob-
server during the June 25 election. I concur that if
White’s version is given full credence there would appear
to be no valid basis for discharge, and a prima facie case
of a violation of the Act would be established. I am un-
able to accept White’s unsubstantiated version, however,
and find Respondent’s evidence regarding the basis for his
discharge more credible and persuasive.
Thus, Ingram testified regarding the 5 August encounter
and asserted that while he was in the production area
White approached him, got in front of his face, and loudly
cursed him, complaining about his working conditions.
Specifically, White said that when he hit the fioor jerking
he would not “be no suck ass like Darrel] Akins,” ** that
he would sue Ingram’s ass as well as that of other super-
visors, that his grandmother had the money to enable him
to sue, and that his nerves were gone and he could not
sleep because of the chemicals he worked with. Ingram
testified he made no response to White and turned and
walked away in spite of the profanity that White used.
Ingram further testified that he went to Willoughby
about the matter and Willoughby told him to document
the encounter, and the next morning to have White’s final
checks prepared. This was done, but the next day when
the checks were taken to McLean for signature McLean,
in light of White’s threat to sue, decided to check with
counsel] before effectuating the discharge. After checking
with counsel it was concluded that since White had been
“* The record suggests Akins was once overcome in the plant by
fumes and passed out.
92a
the Union’s observer, White should not be discharged, only
warned. Accordingly, a meeting was held with White on
6 August attended by Ingram, McLean, Murphy, and
Millsaps. Ingram’s note prepared after the meeting re-
fleets that White was told that he had to be willing and
able to do the job, and if he could not be would be of no
use to Respondent. He was further told that he could
remain as a team man without vocal outbursts but that
if he could not he would be replaced. Moreover, he was
told that this weuld be his last warning and if the same
thing happened again he would be discharged.
Ingram’s testimony regarding the 5 August encounter
with White was corrobortaed by Murphy and employee
Don Cordell. His testimony regarding the disciplinary
action was corroborated by Willoughby, McLean, and
Murphy. Cordell, contrary to White’s testimony, specifi-
cally confirmed White’s use of profanity toward Ingram.
Cordell’s testimony was very convincing. While Cordell
can not be regarded as unbiased on the union organiza-
tion issue," he impressed me as fully truthful and, having
worked with White, appeared sympathetic to him. How-
ever, he testified he observed White to be excitable during
the encounter with Ingram and he did not believe that
White realized what he was saying. Crediting Cordell,
Murphy, and Ingram in this instance, and without regard
to the validity of White’s complaints about his working
conditions, I find White’s forceful loud and abusive lan-
guage toward Ingram provided just cause for discipline.
Although profanity or abusive language may have been
commonplace in the work area there was no evidence that
such language directed at supervisors in a forceful man-
ner had been tolerated. I conclude White would have been
disciplined even absent his union activities. Indeed, bused
on the credited evidence it was White’s Union involvement
“4 Cordell had reported to Ingram on the morning of April 27
that he had heard that there had been a union meeting the preceding
Friday night but identified no individuals attending.
93a
which prevented his discharge in this instance. I find no
violation of the Act in the warning issued White on Au-
gust 6.
Regarding the August 18 incident resulting in White’s
discharge Willoughby testified that on that date he was
in the plant talking to Murphy when White approached
saying he wanted to talk to Willoughby. Willoughby told
him to wait a minute and turned to complete his remarks
with Murphy. White stated at that point that he was
getting “god damned tired of you people” adding that if
they did not want to have anything to do with him to
give him a layoff. Willoughby testified he told White wh»
was loud and agitated and standing within 3 feet of him
to calm down and tell him the problem. Although White
complained he was being ignored Willoughby told him to
calm down and return to his job and added that he was
not going to give White a layoff although White could
quit if he wanted to. White then turned away, but in
doing so stated that he was not going to quit, and that he
was going to stay and “fuck you son-of-a-bitches.” At
that Willoughby told White the choice was no longer
White’s and that he was terminated.
Willoughby’s testimony in the foregoing respects was
generally supported by Murphy. Cordell, while he did
not hear the words exchanged between Willoughby and
White, testified he observed White shaking his finger at
Willoughby and heard him “hollering.” Indeed, Cordel]
testified he had noted that White appeared to be “ag-
gravated,” and when White told Cordell pricr to the in-
cident that he was going to talk to Willoughby Cordell
itioned him not to “go over there and blow up.”
In this instance I eredit Willoughby’s testimony as di-
ly corroborated by Murphy and largely supported by
(ordell. Having been expressly and legitimately warned
bout similar conduct almost 2 weeks earlier it is clear
hat White’s intemperate language and insubordinate con-
duct toward superiors provided a clear basis for discharge
94a
without regard to the merit of White’s job complaints.
Further, in light of the earlier lawful and express warn-
ing to White that a repeat of such conduct would be fol-
lowed by his discharge it is clear that Respondent has
demonstrated that White would have been discharged even
in the absence of his Union and protected activities. Ac-
cordingly, I find no violation of Section 8(a)(3i and (1)
of the Act in White’s discharge.
2. The Alleged Constructive Discharge of Darrell
Martin
Darrell Martin was employed by Respondent from Oc-
tober 1986 until May 15 when he admittedly quit his em-
ployment. At the time of such quitting, which the General
Counsel and Charging Party argue was forced upon him
due to his union support, Martin was employed as a
Banbury machine operator and has been employed in that
position for several months. Martin signed a union au-
thorization card on April 24 at the union meeting on that
date. He also successfully solicited two other employees
to sign authorization cards on April 25 and 27. Coercive
remarks regarding the Union attributed by Martin to
Willoughby have already been set forth above. By virtue
of Martin’s response to the questions of Willoughby con-
cerning whether Martin was for the Union it is clear that
Respondent was aware of Martin’s union sympathies. As
the 1B-Banbury machine operator it was Martin’s func-
tion to weigh plastic “shots” and plastic color ingredients
and insert the material into the machine which “cooked”
or melted the ingredients and dropped the material into
an extruder process on the floor below. At times the work
was fast paced and hectic depending upon the weight of
the loads put into the machine and the time necessary to
“cook” the loads. Some runs required weighing material
and loading the machine once every 45 to 60 seconds, and
some loads weighed approximately 50 pounds. In addi-
tion, there was considerable dust and heat attendant to
95a
operation of the machine.* These factors including the
necessity for accurate weighing of materials by the ma-
chine operators made the job a difficult one requiring
substantial effort and attention. It was made all the more
difficult with the change in shift operations on April 27
because only one operator per shift was used on the ma-
chine after that date.
Martin testified that on May 15 he became ill around
noon with chest pains and nausea, but continued to op-
erate his machine. At his 2:00 p.m. break he talked te
Supervisor Millsaps in the breakroom and advised him of
his illness. Millsaps told him Respondent was planning a
better ventilation system and said things would get bet-
ter. Martin complained that he could not handle the job,
but proceeded back to his job and completed his shift. At
the completion of the shift he told Millsaps and Darrell
Akins in separate conversations he couldn’t handle the job
and would not be coming back. Still according to Martin,
Akins told him he should stay, that things would be get-
ting better and he should not leave. Millsaps likewise, in
Martin’s words, “tried to get me to stay,” but Martin did
not return to work the next work day.
It is well established that a constructive discharge vio-
lative of the Act occurs when an employer deliberately
makes working conditions for a union advocate unbear-
able. To establish a constructive discharge it must be
proven first that the “burdens imposed on the employee
must cause, and be intended to cause, a change in his
working conditions so difficult or unpleasant as to force
him to resign.” And secondly, “it must be shown that
those burdens were imposed because of the employee’s
union activities.” Crystal Princeton Refining Co., 222
“5 Martin testified that he had to mix some dry chemical colors
with the shots and frequently inhaled the dust from such chemicals.
As a result he occasionally coughed up colored phlegm and would
experience chest pains and nausea. While he testified he had gotten
sick on the job twice before 15 May he never told anyone about it.
96a
NLRB 1068, 1069 (1976). See also Seville Flexrpack
Corp., 288 NLRB No. 61 (April 20, 1988).
I find the General Counsel has failed to establish either
element of a constructive discharge in Martin’s case.
While Martin may have found the working conditions un-
bearable there is no evidence that the changes in opera-
tion which increased the difficulty of the job were intended
to cause him to quit. The changes were equally applicable
to all the 1B-Banbury operators and no others quit. Sec-
ondly, based on the facts already found in this case Re-
spondent planned the changes effecting the 1B-Banbury
operation before the union campaign began and imple-
mented the changes prior to the time that any knowledge
by Respondent of Respondent of Martin’s union activities
was shown. Accordingly, I find no constructive discharge
of Martin and thus, no violation of Section 8(a)(3) and
(1) of the Act in this regard.
III. The Objections To The Election
The Union filed 22 numbered objections to the election,
but subsequently withdrew objections numbered 1, 2, 4,
D, 6, 7, 8, 15, 16, 18, 19, and 20. The remaining num-
bered objections will be individually addressed below.
Objection 3:
This objection refers to the discharge of Leroy Hamby.
Hamby’s discharge was found above to constitute an un-
fair labor practice within the meaning of Section 8(a) (3)
and (1) of the Act. Hamby’s discharge occurred within
the critical period between the filing of the petition and
the holding of the election. Generally, conduct which vio-
lates Section 8(a)(1) of the Act is, a fortiori, conduct
which interferes with the election. Dal-Tex Optical Com-
pany, Inc., 137 NLRB 1782, 1786-1787 (1962). I find
this objection has merit.
97a
Objection 9:
This objection complains that Respondent’s manager
told employees in a meeting that prounion employees
would make less money than antiunion employees. The
complaint herein, as amended, made no such allegation or
one similar to it. No independent evidence was offered by
the Union to substantiate the allegation. Accordingly, I
find this objection to be without merit.
Objection 10:
Objection 10 asserts that Res ondent created an atmos-
phere where union supporters felt they were under sur-
veiance by plant manager. supervisors, and “nonbar-
gaining | unit] employees.” It appears to be related to the
allegations of paravraph 18 of the complaint which al-
leged surveillance of union activities by Respondent. This
complaint paragraph was dismissed at the hearine upon
motion by Respondent in the absence of evidence to sup-
port the allegation. No separate allecation Was made in
the complaint attributing to Respondent the creation of an
impression among employees of the surveillance of their
union activities. Furthermore. no independent evidence
was adduced by the Union or cited in its brief to support
this objection, Accordingly, the objection is found to be
without merit.
Objection 11:
In Objection 11 the Union contends Respondent’s su-
pervisors increased the work load of union supporters.
This objection appears to have its foundation in the con-
structive discharge allegations relating to Darrell Martin.
It is clear as found above. that Martin was not dis-
charged, and instead quit. Moreover, while the record
shows that Respondent did change to a 10 hour shift on
April 27 and did cease relief rotations on the 1B-Band-
bury machine on that date making the job more difficult.
I have previously found that the change was decided upon
and announced prior to the advent of the union activity.
98a
It cannot be said that these changes therefore were re-
sponsive to the union activity. In addition there was no
evidence that any increased burdens on employees as a
result of these changes were disparately or dispropor-
tionally imposed upon union supporters. Finally, the
elimination of the relief operators for the Banbury ma-
chines took place prior to the filing of the petition and
thus outside the critical objections period. Parkview
Acres Convalescent Center, 255 NLRB 1164, 1189 (1981).
I therefore find no merit to this objection.
Objection 12:
In this objection the Union claimed that the plant man-
ager told employees in a meeting that wages would be cut
back to minimum wage if the Union was voted in. The
objection appears to be coextensive with the allegations
of the complaint regarding a threatened loss of benefits
and is predicated upon the same testimony cited above
attributing to Willoughby the threat at the employee
meeting on May 14 that if the Union came in employees
would be cut to minimum wage. Having found above that
Willoughby made no such remark it is concluded that
there is no merit to this objection.
Objection 13:
In this objection the Union contends that Willoughby
and other supervisors told employees that Respondent
knew who signed union authorization cards. No evidence
was adduced on the point, and I find the objection to be
without merit.
Objection 14:
According to this objection Willoughby told employees
that union supporters would be terminated. While no
evidence of a specific threat of discharge by Willoughby
was alleged in the complaint the complaint did allege
that Supervisor Ingram had made such a threat. While
99a
I have found above that Ingram indeed made threaten-
ing remarks to Hamby it apepars they occurred prior to
April 30 when the petition was filed, and accordingly
took place outside the critical objections period. I there-
fore find no merit to this objection.
Objection 17:
In this objection the Union contends that employees
were called to supervisors’ offices to discuss the Union.
There was no independent evidence to support this con-
tention cited in the Union’s brief and a canvass of the
record reflects no supporting evidence. I find the objec-
tion to be without merit.
Objection 21:
The allegations of Objection 21 are coextensive with
the allegations of paragraphs 23 and 24 of the complaint
which complain that Respondent granted its bargaining
unit employees a wage increase on May 14 to cause the
employees to reject union representation. No merit was
found above to this complaint allegation. Accordingly,
no merit is found in Objection 21.
Objection 22:
The last union objection asserts that Respondent on
May 15 installed ventilating fans in order to discourage
employees to vote for the Union. No evidence in support
of his objection was adduced. On the other hand the
record reflects some testimony by employees regarding
the absence of adequate ventilating fans. Accordingly,
no merit is found in this objection.
Notwithstanding the failure to find merit to most of
the Union’s specific objections, I have found that Re-
spondent engaged in other conduct violative ef Section
8(ai(1) within the critical period. Such conduct even
in the absence of a specifie ebjection thereon is sufficient
100a
to warrant the setting aside of the election. Dal-Tex
Optical, supra.
IV. The Appropriateness of A Bargaining Order
A. The Appropriate Bargaining Unit and Disputed
Inclusions
In a Stipulation for Certification Upon Consent Elec-
tion executed by Respondent and the Union the appro-
priate collective bargaining unit was described as follows:
All production and maintenance employees employed
by the Employer at its Vonore, Tennessee facility,
including leadmen, laboratory employees, dry color
employees, shipping and receiving employees, liquid
employees and quality control employees, but exclud-
ing all office clerical employees, guards and super-
visors as defined in the Act.
At the hearing herein the parties stipulated again, and
I conclude, that the above described unit is one appro-
priate for collective bargaining. However, the parties
disagreed with respect to the inclusion in the unit of two
employees, Diane Byrum and Lisa McWaters, with Re-
spondent arguing they are plant clerical employees and
with the Union arguing that they are office clericals not
includible in the unit.
The evidence reflects that McWaters, having been ini-
tially hired as a receptionist, was employed at all mate-
‘jal times as an order entry clerk. In this position she
received telephonic product. orders, from customers and
prepared the paperwork for such orders utilizing normal
office equipment and a digital computer. She also ren-
erated shipping paperwork for orders and supplied order
information to the production manager and shipping in-
formation to the shipping department. McWaters’ pri-
mary work location was in the main office where office
clerical employees are located. She worked in an area
lOla
adjacent to the office of Willoughby who directly super-
vised her. While McWaters was paid by the hour, she
did not punch a time clock. She enjoyed the same fringe
benefit package granted all Respondent’s employees and
had access to a production employees break room although
she also had access to an office clerical coffee facility.
She worked a normal & hour-day, 40 hour week as do
the office clericals, and was not affected by the change to
a 10 hour shift on April 27 which effected most of the
unit employees. Her contact With unit employees was
limited to incidental contact while taking paperwork into
the produetion area about 4 or 5 times a day.
Bryum occupied at all relevant times the position of
lab secretary located in a lab manager's office adjacent
to the lab as well as to the main office area. svrum
worked under the supervision of the lah Manager pro-
ducing paperwork for the lab as Well as plant production
reports. She prepared paperwork associated with ship-
ping of lab samples and liquid department requisitions.
She spent an estimated 25 percent of her work time out
of her primary work location and allegedly in direct con-
tact with lab or production employees. In performing her
primary functions she utilized a computer terminal and
regular office ejuipment. On at least one occasion she
was used by lab manager Pollard to type a memo to
McLean describing the unsatisfactory conduct of Tidwell
on April 24. Like MeWaters. Byrum was hourly paid,
received the fringe benefits universal to unit and non-
unit employees, and worked the same hours as office
clericals.
The plant clerical-office clerical] distinction is rooted in
community of interests concepts. Minneapolis-Moline Co..
85 NLRB 597, 598 (1949). Here, contrary to Respond-
ent’s position, I conclude that MeWaters and Byrum’s
work interests were more closely associated with that of
office clericals than unit employees by virtue not only of
their work location but also their job duties and working
102¢
conditions. Neither performed production work of any
type even on a sporadic or part time basis. They worked
different hours from most of the production employees.
That Respendent itself viewed then as being more closely
associated with clerical employees in interests was dem-
onstrated by its failure to grant them the 40 cent per
hour increase granted the unit employees in May. The
lab manager’s use of Byrum to type a personnel memo
reflects the same point. While the paperwork generated
by Byrum and MeWaters related to production work
their direct contact with unit employees does not ap-
pear to be extensive or significantly greater than their
contact with office clericals. Accordingly, I conclude that
Byrum and MecWaters do not have a_ sufficient com-
munity of interests with production unit employees to
Warrant their inclusion in the unit.
B. The Union’s Majority Status
Excluding Byrum and McWaters and including Tidwell
who was found herein to have been unlawfully dis-
charged it appears that on April 30 there were 33 em-
ployees in the appropriate unit. Twenty-one union au-
thorization cards executed by unit employees were identi-
fied and received in evidence. Excluding the card signed
by Armstrong who was lawfully discharged, and the card
of Coley who I find below effectively withdrew his card
on April 28, 17 of these cards were signed on or before
April 27.°° The cards with the caption “Authorization
“" These cards are those purportedly signed by Robby Belcher,
James Browder, Marshall Coley, Ricky Calvin, Richard Flake. Ler \
Hamby, Cari Jones, Ed Hurst, Stephen Lenoir, Timothy Lenoir,
Darrell Martin, Jimmy Millsaps, James Rodgers, Calvin Suttles. Jeff
Tidwell, Rickey White, Glen Goforth and Vie Murphy. Two addi
tional cards those of Steve Smith and Troy Medlin were signed or
May 5. Respondent's brief suggests there was an additional unit
employee not appearing on the stipulated list of emplovees shown
on the payroll of May 5. This suggestion is based upon W illoughby’s
103a
and Application for Membership” not only constituted an
application for membership, but also designated the
Union as the exclusive bargaining representative of the
signer. Further, the cards specifically authorized the
Union “to request recognition from my employer as my
bargaining agent and ‘or to petition the National Labor
Relations Board for an election for certification of said
Union as my bargaining representative.” ] find the eards
are clear and unambiguous. Where appropriately exe-
cuted in the absence of improper inducements I find the
cards are valid designations of the Union as collective
bargaining representative.
tespondent attacks the validity of the ecard signed by
Browder which bears the date “27 June 87,” a date obvi-
ously in error, since the card also bears the date stamp
“87 Apr 30” of the Board’s Region 10 office, Respondent
contends that since Browder was not called to testify
regarding the date the authenticity of the card js doubt-
ful. Browder’s card was identified by Martin who soli-
cited the card from Browder and who testified that jt
was signed on April 27. I credit Martin who is supported
by the Region’s date stamp on the back. It is well estab-
lished that a union ecard may be effectively identified by
Witnesses other than the card signer. MeE we) Mfg. Co.,
172 NLRB 990 (1968). I find Browder’s card was a valid
nor
designation of the Union as of April 27.
Respondent argues that the ecard of Marshall “Mae”
Coley was invalid for majority purposes because he effec-
testimony of an employee named Dwight Bevins being shifted into
the unit on April 27. Willoughby’s testim« ny appeared uncertain on
this point, however, and Bivens inclusion in the unit is inconsistent
with the stipulated list of unit employees, which list, with certain
exceptions, became the Evrelsior lisi for the election. Under these
circumstances, as well as Respondent’s failure to explain why Biven’s
name did not anpear of the st pulated list of unit employees I find
the record insufficient to est: blish that Bivens may properly be in-
cluded in the unit.
104a
tively withdrew the authcrization on April 28, by seeking
on April 28 the return of his card, executed on April 24,
from Rodgers who had solicited the card. Rodgers testi-
fied for Respondent that Celey had in fact asked for his
card back and Rodgers had communicated the request
to union representative James Hendrix who told him that
the card had likely already been forwarded to the Board
with the petition. Hendrix gave Rodgers the address of
the Board’s regional office. Rodgers admittedly did noth-
ing further. Hendrix testified only that Rodgers reported
to him that Coley was “shakey,” and did not request
return of the card. Whether or not Rodgers communi-
cated the Coley request for revocation of his card to
Hendrix Respondent, citing Production Plating Co., 233
NLRB 116, n. 4 (1977), enf’d 614 F.2d 1117 (6th cir.
1980) and TMT Trailer Ferry, Inc., 152 NLRB 1495,
1496 (1965), contends Coley took sufficient reasonable
action to revoke the card.** The General Counsel counters
citing Photo Drive Up, 267 NLRB 329, 362 (1983) as
standing for the principle that revocation to be effective
must be communicated by the card signer to the Union,
and the General Counsel implies that only direct contact
with the Union by the card signer can validate a revoca-
tion. Contrary to the General Counsel and regardless
of whether Rodgers communicated Coley’s request to
Hendrix, I find based on Rodgers testimony, uncontra-
dicted in this regard and therefore credited, that Coley
had taken sufficient reasonable steps to revoke his card.
Production Plating Co., supra. I find Coley’s revocation
effective in the absenec of clear evidence that Respondent
engaged in any unfair labor practices affecting Coley or
of which he would likely have known between Coley’s
signing of the card on the evening of April 24 and the
time he asked Rodger’s to withdraw his card on April 28,
the date established in the testimony of Rodgers and
Hendrix. While Farrell had communicated an offer to
“7 Coley sometime after May 8 also executed one of Respondent’s
form withdrawal letters and forwarded it to the Union.
105a
Coley of $50 to withdraw his card it is not clear that this
occurred before April 28.
Respondent attacked the validity of the card signed
by Carl Jones on the basis of Jones’ testimony that
Rodgers told him the purpose of the card was to “try to
get a vote in a Union.” To invalidate a card, however,
it must be shown that contrary to the express wording of
the card a representation was made that it would be used
only for a different and more limited purpose. Photo
Drive Up, supra, at 364. A reference to the use of the
card in obtaining an election does not, however, invali-
date the card unless such usage is represented as the sole
or only purpose. Cumberland Shoe Corp., 144 NLRB
1268 (1963), enfd. 351 F.2d 917 (6th Cir 1963). The
representation made to Jones, I conclude, did not amount
to such a representation and I find no question regarding
the representations made to Jones which would invalidate
the card.
I reach the same result with respect to cards signed by
James Browder and Calvin Suttles. Those cards were
solicited by Darrell Martin who freely testified that he
told Browder and Suttles that the Union had to have 51
percent of the employees to sign cards to have an elec-
tion. However, Martin’s testimony does not establish that
he represented that an election was the sole or only pur-
pose of the cards. There is thus no question effecting the
validity of the card which would negate its use for ma-
jority purposes. Well-Bred Loaf, Inc., 280 NLRB No. 36
(June 11, 1986).
Respondent also attacks the validity of the card of
Clark Goforth for majority purposes on the basis of his
revocation of the card. Goforth signed one of the form
letters distributed by Respondent and forwarded it to
the Union. The date he did so was not clear, but it obvi-
ously was after May 8 when Respondent distributed the
form letters. This was well after the record establishes
that Respondent embarked upon its unfair labor practice
106a
campaign and after the two discharges found herein to
be unlawful occurred. I therefore conclude Goforth’s
revocation was ineffective.
The card of Timothy Lenior was identified by union
representive Hendrix who related that he received the
card from Lenior at the union meeting on April 24. Re-
spondent argues that the signature on the card purport-
ing to be the signature of Lenior is different from the
W-4 form signed for Respondent by Lenior and received
in evidence herein. Respondent further argues that based
on similarity in writing it must have been filled out by
the same person who signed the card of Stephen Lenoir.
It is well established that a comparison of signatures
with a known specimen of an individual’s handwriting is
an appropriate method of identification, and that a trier
of fact, even if not a handwriting expert, may make
comparisons of signatures and reach conclusions thereon.
Local 707, Motor Freight Drivers (Claremont Polychemi-
cal Corp.), 196 NLRB 6138, 625 (1972). While the ad-
dress and employment information portions of the cards
of Stephen and Timothy Lenior appear to have been com-
pleted by the same person, the purported signature on
Timothy Lenior’s card is sufficiently similar to that on
his W-4 form to preclude me from concluding that they
are not the same. Moreover, even if the card was exe-
cuted by someone other than Timothy Lenoir, Hendrix’s
testimony remains uncontradicted that Timothy Lenoir
handed him the card. By this delivery of the card to
Hendrix, Lenoir adopted the authorization stated in the
card even if the signature appearing thereon was not his
own. Finally, it is clear that through the identification
of the card by Hendrix and the circumstances surround-
ing the signing of the card, the General Counsel estab-
lished prima facie that Lenoir’s card was valid. The bur-
den thereafter shifted to Respondent to disprove its valid-
itv and establish that Lenoir’s signature on the card was
not genuine. Olympic Villas, 241 NLRB 358, 366 (1979).
107a
Respondent did not call Lenoir to do this and failed to
explain his unavailability for this purpose. Considering
the foregoing, I find the card of Timothy Lenoir to be a
valid one in establishing the Union’s majority status.
Lastly Respondent contends the eard of Troy Medlin
executed on May 5 should be declared invalid because of
representations regarding the purpose of the card made
to him by Rodgers who solicited the card. Medlin testi-
fied variously that Rodgers told him that siging the card
was (1) “basically, to try to get the Company to recog-
nize them {the Union] as to have an election;” and (2)
“that it was just basically to try to get an election.” On
the other hand, he answered negatively when questioned
by Respondent’s counsel whether Rodgers told him that
by signing the card it would result in an election and
Was apparently confused by a question regarding whether
he was told the only purpose of the card was to obtain
an election. Citing Well-Bred Loaf, Inc., supra, slip. op.
4, n. 7, where the Board Suggested that a representation
by a solicitor that a card was “Just to [have al vote”
coupled with an unresolved conflict between witnesses re-
garding what representations were made raised sufficient
questions regarding the validity of the card to discount
the card for majority purposes, Respondent argues the
same situation prevails here. In the case sub judice I
do not view Medlin’s testimony as a precise report of
Rodger’s words during the solicition as opposed to
Medlin’s personal conclusions regarding what Rodger’s
told him. Initially in reaching this conclusion I do not
find Medlin’s use of the word “just” as one used by
Rodgers. Secondly, and in any event, Medlins’ use of the
word “just” with “basically,” even if these words are a
precise report of what Rodgers said. clearly reveals “just”
Was not limiting the use of the card to a sole purpose,
but rather pointing out abasic purpose of the ecard.
There was therefore no misrepresentation affecting the
validity of the card for majority purposes.
108a
Based on the above I find that on April 27 the unit
consisted of 34 employees and the Union had valid au-
thorization cards from 19 employees, a clear majority.
By April 29 Armstrong had been lawfully discharged and
Coley had effectively withdrawn his card leaving the
Union still with a majority of 17 out of 33 unit employ-
ees. On May 5 Respondent hired two new employees
Cozart and Benton into the unit, but by then the Union
had obtained the authorization cards of Steve Smith and
Troy Medlin and retained a majority status, at that
point having 19 cards (including those of Tidwell and
Hamby who I have found were unlawfully discharged )
out of a unit of 35 employees. I find therefore vhat at
all relevant times the Union represented a majority of
Respondent’s unit employees.
C. Application of Gissel Standards
John Williams, a district director of the Union, testi-
fied he sent the following mailgram to Respondent in the
afternoon of April 28.
This is to inform you that the Oil Chemical and
Atomic Workers International Union now represents
the majority of the employees at the Avecor In:or-
porated Vonore, Tennessee facility. As you know,
these employees exercised their rights as set forth
under the NLRB Act. We expect you and your agent
to abide by these applicable laws or face civil and
possible criminal charges being filed.
Respondent through Willoughby, to whom the mailgram
was specifically addressed, and Klarich disputed having
ever received the mailgram. No evidence was offered by
the General Counsel to establish Respondent’s receipt of
the mailgram. While a letter deposited in the mail under
appropriate circumstances might be presumed to have
been delivered ! find it unnecessary to make a similar
presumption here for I find that the mailgram in any
109a
event did not by its own language constitute a valid
request for recognition or bargaining. Even the Union’s
filing of the petition on April 30 did not amount to, and
can not be regarded as, a request for recognition. Pyo-
duction Plating Co., supra. However, the absence of 2
request for recognition and bargaining does not preclude
the entry of a bargaining order in the case, if one is
otherwise warranted to remedy Respondent’s unfair labor
practices which preclude the likelihood of free employee
choice in a secret ballot. election. See NLRB v. Gissel
Packing Co., Inc., 395 US. 575, 612 (1969); J. & G.
Wall Baking Co., Inc., 272 NLRB 1008 (1984) ; Ohio New
and Rebuilt Parts, Inc., 267 NLRB 420 (1983). The
General Counsel and Charging Party argue that a reme-
dial bargaining order is warranted here. Respondent as
could be expected takes a contrary position.
In Gissel supra, the Supreme Court set forth the follow-
ing categories to be used in determining whether to impose
bargaining orders to remedy unfair labor practices: (1)
A bargaining order may be granted where an employer's
unfair labor practices are “outrageous” and “pervasive” :
(2) A bargainine order may be granted in less extraor-
dinary cases marked by less pervasive unfair labor prac-
tices which nonetheless have 4 tendency to undermine
majority strength; and (3) A bargaining order is not
appropriate in cases involving minor or less extensive
unfair labor practices “which, because of their minimal
impact on the election machinery, will not sustain a
bargaining order.’ Tn weighing the pervasiveness of vio-
lations of the Act the Board has held that relevant con-
siderations include “the number of employees directly
affected by the violation, the size of the unit, the extent
of dissemination among the work force, and the identity
of the perpetrator of the unfair labor practice.” Michigan
Lvpediting Services, Inc.; 282 NLRB No. 30, slip op. at 4
(Nov. 20, 1986).
110a
Particularly pervasive unfair labor practices which are
deemed highiy coercive and are likely to have a longer
lasting and inhibitive affect on a substantial percentage
of the work force are frequently referred to as “hall-
mark” violations. Examples of hallmark violations are
threats to plant closure, threats of discharge, and the
actual discriminatory discharge of employees. However,
even the finding of “hallmark” violations does not auto-
matically dictate the appropriateness of a bargaining
order. In the final analysis, as the Board stated in San-
gamo Western, Inc., 273 NLRB 256, 257 (1984), the
issue of whether a Gisse/ bargaining order is appropriate
“must be answered in light of the facts of each case and
with due regard for the principle that generally a secret-
ballot Board conducted election is a preferred method of
ascertaining employee choice.”
Applying the foregoing principles to the case sub judice
I am compelled to the conclusion that Respondent’s unfair
labor practices found herein fall within the second Gissel
‘ategory thus making a bargaining order appropriate. In
reaching this conclusion I note initially that the bargain-
ing unit was a small one consisting of only 34 employees.**
In a unit of this size Respondent’s unfair labor practices
are likely to have a more substantial impact, particularly
considering that most of the unit employees were directly
affected by the unfair labor practices. First in this re-
gard, as I have found, two employees were discrimina-
torily discharged. That amounts to an unlawful discharge
of roughly 6 percent of the unit, and therefore likely to
“8 Respondent asserts that at the time the hearing herein closed
the bargaining unit had changed significantly as a result of growth
and trunover. The Board, as distinguished from the position of
some of its members, has not included turnover as a factor in deter-
mining the appropriateness of bargaining order remedy. See Impact
Industries, Inc., 285 NLRB No. 2 (July 20, 1987), enforcement
denied 847 F.2d 379 (7th Cir. 1988); Long-Airdow Co., 277 NLRB
1157 (1985). CF. concurring opinion of Member Dennis in Regency
Manor Nursing Home, 275 NLRB 1261, 1262 (1985).
llla
have a substantial and lasting impact on employee free
choice. The Board has said that “unlawful discharge or
layoff is one of the most flagrant and severe acts an em-
pioyer can take to dissuade employees from selecting a
bargaining representative.” Groves Truck and Trailer,
281 NLRB No. 161, slip op. at 8 (September 30, 1986).
Indeed, the fact that the discharges here during the union
campaign were of great concern to employees was demon-
strated by Hurst’s expression of concern to Willoughby
over his own possible discharge or layoff for union activity.
Similarly, based upon Supervisor Farrell’s testimony, it
is clear the employees were concerned about Tidwell’s dis-
charge for one employee raised a question at an employees
meeting with management, the one on May 14, whether
Tidwell’s discharge had anything to do with the Union.
Willoughby in his testimony acknowledged that the ques-
tion was raised, and he assertedly denied any relation-
ship between Tidwell’s discharge and union activity. Far-
rell in his testimony did not attribute a specific denial to
Willoughby, only a recitation of his view of the circum-
stances of Tidwell’s discharge. Whether or not there was
& specific denial by Willoughby of an unlawful discharge
am persuaded that his recitation of his version of the
circumstances of the discharge did little to assuage con-
cern of employees that the discharge was in fact related to
union activities. It was clear that employees viewed Tid-
well as a union leader and the likely target for diserim-
ination. Even Willoughby conceded that subsequent to
Tidwell’s discharge unit employee Clarence Jackson had
told Willoughby that in firing Tidwell he had gotten one
of the main union instigators. Moreover. the discharge
of Hamby, a union card signer, only a few days after
Tidwell had the likely effect of increasing employee con-
cerns about the risks involved in union activity.
4
Beyond the un'awful discharges. Respondent committed
several violations of Section 8/a) (1) of the Act. At least
one of them falling into the “hallmark” category. Thus,
112a
there was Ingram’s threat to Hamby that the Union would
cause Respondent to close its deors. And there were only
slightly less serious violations consisting of the threats of
more strict rule enforcement with the Union and the
promise of more wages without a union. These violations
occurred at the May 14 meeting attended by all the unit
employees assuring dissemination to, and impact upon,
the entire unit. And Respondent continued its uniawful
conduct until 2 to 38 days prior to the election when, as it
was previously found, Willoughby told employees that
with a Union they could not get the favors that they had
enjoyed in the past.
Lastly it must be noted that the violaticns were com-
mitted, not primarily by low level supervisors, but by the
higher management officials, Klarich and Willoughby.
The coerciveness of their unlawful remarks is increased
by the likely perception among employees that by virtue of
their high positions they have the authority and ability
to implement or execute their unlawful threats and prom-
ises. See Long-Airdow, supra at 1160.
Respondent in its brief argues, that no bargaining order
is warranted here because, in effect, it has not been dem-
onstrated by an unfair labor practice history that Re-
spondent has a proclivity to violate the Act. In support
of this argument Respondent points to the fact that dur-
ing the Steelworkers’ campaign the preceding year which
culminated in an election in which the union received no
votes, no unfair labor practices were attributed to Re-
spondent. Although the absence of an unfair labor prac-
tice history precludes any finding of a proclivity to violate
the Act, it does not preclude the finding here reached that
Respondent in fact violated the Act and that such viola-
tions are sufficiently pervasive to preclude the imp!lemen-
tation of traditional remedies.
tespondent also argues that the Union’s proceeding to
the election on June 25 with its awareness of Respondent’s
113a
unfair labor practices demonstrated the Union’s belief
that a free and fair election could be held, and this sup-
ports Respondent’s arguments that only a rerun election
is the appropriate remedy here. I find no merit. in this
argument. Longe avo the Board stated in Bernel Foam
Products Co,, fiuc., 146 NLRB 1277, 1280 (1964) -
The fact that in an election a vote favorable to the
Union may obviate for it a necessity for pursuing the
unfair labor practice route does not, in our view,
warrant requiring the Union to forfeit the right to
request that the effect upon it of the employer’s un-
lawful conduct be rectified when it develops that such
conduct has been sufliciently onerous to interfere
with the election and to cause a substantial deteriora-
tion in the union’s status.
Since the Union under Beryel Foam retains the right
(0 proceed alone the unfair labor practice route, its deci-
sion to proceed to the election and the quicker resolution
of the representation issue it normally affords, notwith-
standing the Respondent’s unfair labor practices, demon-
strates not a “belief” but only a hope that a fair election
could be held. That. this hope was dashed demonstrates
only the effectiveness of the Respondent’s unlawful con-
duct.
Considering the total circumstances of this case and all
those factors noted above regarding the small size of the
unit, the unlawful discharge of two employees, the likely
impact of all the unlawful conduct on unit employees,
and the facet that much of the unlawful conduct was com-
mitted by high Respondent Officials, I find that it is jm-
probable that the use of traditional remedies here would
be sufficient to ensure a fair rerun election. I further
find that the employees uncoerced choice of representative
previously expressed by union cards, on balance, would be
better protected by the issuance of a Gissel remedial bar-
gaining order. Since the Union first obtained majority
1l4a
status through cards on April 277’ and the Respondent
having embarked upon its unfair labor practices on April
27 and shortly prior thereto, the recommended bargaining
order herein will be made effective April 27. See Grey’s
Colonial Acres Boarding Home, supra; Peaker Run Coal
Co., 228 NLRB 93 (1977); Trading Port, Inc., 219 NLRB
298 (1975).
III. The Effect of the Unfair Labor Practices
Upon Commerce
The activities of Respondent set forth in Section II
above occurring in connection with the operations of Re-
spondent described in Section I above had a close, intimate
and substantial relationship to trade, traffic, and com-
merce among the several states and tend to result in labor
disputes burdening and obstructing commerce and to the
free flow thereof.
Conelusions of Law
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act
by:
a. Implying to employees that it would consider
granting wage increases to induce them to forego their
union support.
b. Threatening its employees that it would close
its doors if they selected the Union to represent them.
b. Interrogating employees concerning their union
nembership activities and desires.
“9 On this date the Union had 19 executed ecards including those of
Tidwell and Armstrong, in a unit of 34 employees.
11l5a
d. Threatening its employees with more strict rule
enforcement and the refusal to grant future favors if
they selected the Union to represent them.
e. Promising its employees more raises and benefits
if they did not select the Union to represent them.
f. Offering employees money or other benefits to
induce them to seek the return of their union authoriza-
tion cards,
4. Respondent violated Section 8(a) (3) and (1) of
the Act by discharging Jeffrey Tidwell and Leroy Hamby
because of their support of the Union.
5. The following unit is appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by Respondent at its Vonore, Tennessee facility, in-
cluding leadmen, laboratory employees, dry color
employees, shipping and receiving employees and
quality control employees, but excluding all office
clerical employees, guards and supervisors as defined
in the Act.
6. The Union’s objection No. 3 to the election in Case
10-RC-13492 has merit and must be sustained and when
coupled with Respondent’s other unlawful conduct oc-
curring in the evitical period require that the election
held June 25, 1987 be set aside.
7. On April 27, 1987 the Union obtained signed union
authorization cards from a majority of Respondent's em-
ployees in the bargaining unit described above in para-
graph 5,
-_
8. Since on or about April 27, 1987 when Respondent
commenced engaging in unfair labor practices the Union
has been the exclusive representative of Respondent’s
employees in the unit described above in paragraph 5 for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
lil6a
9. By virtue of its unfair tabor practices set forth in
paragraphs 8 and 4 above Respondent has attempted to
undermine the Union’s majority status and has precluded
the holding of a fair rerun election thereby making a
bargaining order an appropriate remedy herein.
10. The unfair labor practices set forth in paragraphs
3 and 4 above constitute unfair labor practices affecting
commerce Within the meaning of Section 2(6) and (7)
of the Act.
li. Respondent did not engage in unfair labor prac-
tices in any other manner alleged in the complaint and
not specifically found herein.
The Reinedy
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it be re-
quired to cease and desist therefrom and take certain
affirmative actions designed to effectuate the policies of
the Act.
Having found that Respondent unlawfully discharged
employees Jeffrey Tidwell and Leroy Hamby the recom-
mended order will require that these two employees he
offered immediate and full reinstatement to their former
positions, or if those positions no longer exist, to sub-
stantially equivalent positions without prejudice to their
seniority or other rights and privileges. In addition the
recommended order will require that these two employees
be made whole for any loss of earnings they may have
suffered by virtue of the unlawful discrimination against
them, by payment to them of a sum equal to that which
they would have earned absent the discrimination, with
backpay computed as prescribed in FW. Woolworth
Co., 909 NLRB 289 (1950), with interest thereon to be
computed in the manner prescribed in New Horizons for
117a
thie hee larded. “2 i NERB No. 198] (May 2%. 1X7 Pg |
hall also recommMe d. CON tent with the Bourd’s holdiy ’
In Sterling Sugars. Ti , 261 NLRB 472 (1982). that
Respondent be required to
reference to the dj charges of Tidwell and H: mby
notify them in writing that this has }
expunge from its records
heen done and t
evidence of thei) inlawfil discharge wil] ot be 3
In Tuture personnel actions against them.
Minally, it follows from the recomemnded issuance
a bargaining o ‘der that Respondent’ Violations of
Act are sufficient) TreGIOUS tO W arrant the ent) ()
broad Cee
se and desise order. See Hickmott Foods, 1
{
“42 NLRB 1357 (1979)
Upon the foregoing findings of fact.
iit)
Of mal Act | hereh | lf tne fo] Ving recomMmmMert lac]
ORDER
Resry at A ver Tre \ al i ¢ i ()
ec and }
l (ease and desist Prom
‘al Discharging or otherwise discha ving ag
its employees because they join. supper or st ¢
Chemical, and Atomie Workers | ternational U
]
order to aqIscouree
ance of the U) lon at Its ther Mm]
118a
(bi Implying to employees that it would consider
granting them wage increases to induce them to forego
their union activity.
(ec) Threatening employees that it will close its
doors if they select the Union to represent them.
(d) Interrogating its employees concerning their
union membership, activities, and desires.
(e) Threatening its employees with more strict rule
enforcement and the refusal to grant future favors if
they select the Union to represent them.
(f) Promising its employees more raises and bene-
fits if they do not select the Union to represent them.
(g) Offering employees money or other benefits to
induce them to seek the return of their union authoriza-
tion cards.
(h) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Re-
lations Act.
2. Take the fololwing affirmative action designed to
effectuate the policies of the Act.
(a) Upon request of the Union, bargain collectively
With it as the exclusive collective bargaining representa-
tive of Respondent’s employees in the following union ap-
propriate for bargaining with respect to rates of pay,
wages, hours, and other terms and conditions of employ-
ment and, if an undertsanding is reached, embody such
understanding in a signed agreement:
All production and maintenance employees employed
by Resondent at its Vonore, Tennessee facility, in-
cluding leadmen, laboratory employees, dry color em-
ployees, shipping and receiving employees and quality
control employees, but excluding all office clerical
119a
employees, guards and supervisors as defined in the
Act.
(bi Offer Jeffrey Tidwell and Leroy Hamby full
and immediate reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
righis and privileges previously enjoyed and make them
Whole in the manner set fort hin the section of this de-
cision entitled “The Remedy” for any loss of earnings
they may have suffered by the reason of the discrimina-
tion against them.
(c) Expunge from its files any veferences to the
discharges of Jeffrey Tidwell and Leroy Hamby and
notify them in writing that this has been done and that
evidence of these unlawful] discharges wiil not be used
as a basis for future personnel actions against them.
(d) Preserve, and upon request, make available to
the Board or its agents, for examination and copying, all
payroll records, social] security payment records, time-
cards, personnel records and reports, and all other ree-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its Vonore, Tennessee place of business
copies of the attached notice marked “Appendix,” “ Copies
of the notice on forms provided by the Regional Director
for Region 10, shall be posted by Respondent immedi-
ately upon receipt thereof, and maintained for 60 con-
secutive days in conspicuous places, places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
“Tf this Order is enforced by a Judement of a United States
Court of Appeals, the words in the notice reading “POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTE PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
120a
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within
20 days from the date of this Order what steps Respond-
ent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of
the complaint not specifically found herein be dismissed.
IT IS FURTHER ORDERED that the Union’s objec-
tion 3 to the election in Ca > 10-RC-13492 and the other
objectionable conduct of Respondent found herein be sus-
tained, that the Union’s objections 9, 10, ie ae. 636,
17, 21, 22, be dismissed, that the results of the election
in case 10-RC-13492 on June 25, 1987 be set aside, that
case 10-RC-13492 be severed from cases 10-CA-22645 and
10-CA-22886, and that the petition in Case 10-RC-13492
be dismissed.
Dated Washington, D.C. September 30, 1988.
s/ Hutton 8S. Brandon
HUTTON S. BRANDON
Administrative Law Judge
12la
“APPENDIX”
NOTICE TO I MPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE
UNITED STATES GOVERNMENT
The Nationa] Labor Relations Board has found that we
have violated the National] Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT imply te our employees that we wil]
consider granting them a Wage increase to induce them to
forego their union activity on behalf of Oil, Chemical and
Atomic Workers International Union,
WE WILL NoT threaten employees that we wil] close
our doors if they select the union to represent them.
WE WILL NOT interrovate our employees concerning
their union membership activities and desires,
WE WILL NOT threaten our employees with more
strict enforcement of rules and the refusal to grant future
favors if they select the Union to represent them.
WE WILL NOT promise our employees more raises
and benefits if they do not select the Union to represent
them,
Wk WILL NOT offey employees money or other benefits
to secure the return of their union authorization cards.
WE WILL NOT discharge or otherwise discriminate
against employees because of their union activities and
sympathies,
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
122a
WE WILL offer Jeffery Tidwell and Leroy Hamby
immediate and full reinstatement to their former jobs or,
it those jobs no longer exist, to substantially equivalent
position, without prejudice to their seniority or any other
rights and privileges enjoyed and WE WILL make them
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them.
WE WILL expunge from our files any reference to the
discharges of Jeffery Tidwell and Leroy Hamby and
notify them in writing that this has been done and that
evidence of their unlawful discharge will not be used as
basis for future personnel action against them.
WE WILL upon request of Oil, Chemical and Atomic
Workers International Union bargain collectively with it
as exclusive collective bargaining representative of our
employees in the following unit found appropriate for
bargaining with respect to rates of pay, wages, hours,
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in
a signed agreement:
All production and maintenance employees employed
by Respcendent at its Yonore, Tennessee facility, in-
cluding leadmen, laboratory employees, dry color em-
ployees, shipping and receiving employees and quality
control employees, but excluding all office clerical
employees, guards and supervisors as defined in the
Act.
AVECOR, INC.
(Employer)
Dated: By:
.
(Representative) (Title)
123a
THIS IS AN OFFICIAL NOTICE AND MUST
NOT BE DEFACED By ANYONE
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 101 Marietta Street, N.W.,
Suite 2400, Atlanta. GA 30323-2400. Telephone: (404)
331-2886,
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.