Columbian Rope Co.

National Labor Relations Board - Board Decisions

Sep 27, 1991

299 N.L.R.B. 1198 (N.L.R.B. 1991)

1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Columbian Rope Company and Amalgamated Cloth-
ing and Textile Workers Union, AFL-CIO.
Case 26-CA-12879
September 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On October 16, 1989, Administrative Law Judge
William N. Cates issued the attached decision. The
General Counsel and the Union filed exceptions
and supporting briefs, and the Respondent filed
cross-exceptions, a supporting brief, and a brief in
opposition to the General Counsel's and the
Union's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.The Board has considered the deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings,' and conclusions only to the extent con-
sistent with this Decision and Order.
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(1) by coercively in-
terrogating employees, by soliciting grievances
with implied promises to remedy them, and by
promising unspecified benefits to employees. 2 Fur-
ther, the judge dismissed allegations concerning,
inter alia, the Respondent's design and application
of a system for selecting employees for permanent
layoff and eventual termination and to its issuing
disciplinary warnings to employees Sara Barnes
and Diane Jernigan. 3 We agree with the judge's
dismissal of those allegations. 4 The judge, howev-
1 The Union has excepted to some of the judge's credibility findings.
The Board's established policy is not to overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are Incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Contrary to the Respondent's exceptions, we find that Lenell Daniel's
duties as section leader in the small rope department were more akin to
the duties of a leadman than those of a supervisor. Thus we agree with
the judge that the Respondent violated Sec. 8(a)(1) when Plant Manager
Westmoreland interrogated Daniel and solicited grievances from him
with an implied promise to remedy them.
Chairman Stephens finds it unnecessary to decide whether the Re-
spondent violated Sec. 8(a)(1) of the Act through the incident concerning
Daniel or through Supervisor Peden's questioning of employee Once.
Other findings which the Board is adopting support the Order with re-
spect to interrogations and solicitations of grievances
2 No exceptions were taken to these findings insofar as they were
based on incidents involving Larry and Diane Jernigan
3 In adopting the judge's dismissal of the allegation concerning the
written warning issued to Diane Jernigan for tardiness, we note that the
judge apparently discredited her testimony that she was never told to
report to work at 6 a.m.
4 No exceptions were taken to his dismissal of allegations concerning
the Respondent's no-solicitation rule, restriction of employees during
their breaktimes, reduction of an employee's wages, and Westmoreland's
meetings with employees on July 21, 1988.
er, also dismissed the 8(a)(1) allegation involving
the 35-cent-per-hour wage increase. We disagree.
The judge rejected the General Counsel's con-
tention that on November 1, 1988, 5 the day before
the Board conducted a representation election, the
Respondent violated Section 8(a)(1) of the Act by
announcing its intention to grant a 35-cent-per-hour
wage increase to go into effect on November 6.
The judge found, inter alia, that the timing of the
announcement and grant of the increase, standing
alone, did not prove unlawful motivation. He fur-
ther found that the amount of the increase was nei-
ther excessive nor inconsistent with previous in-
creases. Finally, the judge found that the purpose
of the increase was to adjust employee wages in
accordance with the wages of comparable employ-
ees in the area.
We find, contrary to the judge, that the timing
of this wage increase announcement demonstrates
the Respondent's unlawful motivation. Respond-
ent's president Ludt notified employees on July 14
that he was postponing consideration of the August
wage increase until November 1. The petition in
Case 26-RC-7090 was filed September 2 and the
election held November 2. As noted by the judge,
President Ludt could not have known there would
be a November 2 election at the time he postponed
the wage increase, nor has the General Counsel al-
leged that the July 14 postponement violated the
Act. Rather, the General Counsel has alleged, and
adequately demonstrated, that by announcing the
35-cent increase on November 1, and thereafter
granting it, the Respondent violated Section
8(a)(1). The July 14 postponement announcement
did not promise a wage increase on November 1. It
simply stated that, due to the Respondent's poor fi-
nancial condition, consideration of all wage and
salary increases would be suspended until Novem-
ber 1. Thus, the Respondent was not obligated to
announce the grant of an increase on November 1;
it was only obligated to consider such an increase
in light of all relevant concerns, including financial
ones. 6
'All dates hereafter are 1988, unless specified otherwise.
6 Even if the Respondent's November 1 review indicated that an in-
crease would be appropriate, the Respondent still has not justified its de-
cision to announce the raise immediately before the election. See NLRB
Styktek, 520 F.2d 275, 280 (1st Cir. 1975) ("Wage increases and associ-
ated benefits may well be warranted for business reasons; still the Board
is under no duty to permit them to be husbanded until right before an
election and sprung on the employees in a manner calculated to influence
the employees' choice."). We reject the Respondent's asserted concern
for following Board law by proceeding with granting benefits as though
there were no organizational campaign on two grounds. First, as already
stated above, the Respondent did not promise on July 14 that it would
raise wages on November 1. Second, the Respondent was not always so
prompt in its handling of previous wage increases; the August 1987 wage
increase was not granted until October 1987 due to an oversight.
299 NLRB No. 165
COLUMBIAN ROPE CO. 1199
Moreover, the wage increase was contrary to the
Respondent's asserted financial difficulties. The Re-
spondent had recently undergone a major restruc-
turing of its product lines based on mounting losses
and cashflow problems, and had accordingly per-
manently eliminated almost 30 percent of its work
force. There is no record evidence, and the Re-
spondent does not contend, that its desperate finan-
cial situation turned around so as to allow for such
a raise. Thus, we conclude that the Respondent
sought to influence its employees to vote against
the Union when it announced the grant of a 35-
cent-per-hour wage increase the day before the
representation election, in violation of Section
8(a)(1).
ORDER
The National Labor Relations Board orders that
the Respondent, Columbian Rope Company, Gun-
town, Mississippi, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees about
their union support or activities.
(b) Soliciting employee grievances, and impliedly
promising to remedy such grievances in order to
influence employees to vote against Amalgamated
Clothing and Textile Workers Union, AFL-CIO,
in a Board-conducted representation election.
(c) Promising unspecified benefits to its employ-
ees if they would support the Respondent and/or
abandon support for the Union.
(d) Announcing and granting wage increases to
its employees in order to influence them to vote
against the Union in a Board-conducted representa-
tion election.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its Guntown, Mississippi facility
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Re-
gional Director for Region 26, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading If this Order is enforced by a
judgment of a United States court of appeals, the words in the notice
reading "Posted by Order of the National Labor Relations Board" shall
read "Posted Pursuant to a Judgment of the United States Court of Ap-
peals Enforcing an Order of the National Labor Relations Board."
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations not specifi-
cally found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate our em-
ployees about their union support or activities.
WE WILL NOT solicit employee grievances, and
impliedly promise to remedy such grievances, in
order to influence them to vote against Amalga-
mated Clothing and Textile Workers Union, AFL-
CIO, in a Board-conducted representation election.
WE WILL NOT promise our employees unspeci-
fied benefits if they support the Company and/or
abandon support for the Union.
WE WILL NOT announce and grant wage in-
creases to our employees in order to influence
them to vote against the Union in a Board-conduct-
ed representation election.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
COLUMBIAN ROPE COMPANY
Margaret Guill Brakebush, Esq., for the General Counsel.
Emile C. Ott and Jeffrey A. Walker, Esqs. (Fuseher, Ott,
McKee & Walker), of Jackson, Mississippi, for the Re-
spondent.
Woody Biggs, Assistant Organizing Director, of Hatties-
burg, Mississippi, for the Union.
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I
heard this case in 7 days of trial proceedings held at
Tupelo, Mississippi, in the period April 17-21, and April
24-25, 1989. The case arose when Amalgamated Cloth-
ing and Textile Workers Union, AFL-CIO (the Union),
filed an unfair labor practice charge against Columbian
Rope Company (Respondent, Employer, or the Compa-
ny) on October 21, 1988. 1 The Union amended its charge
on November 3. Acting for the Board's General Counsel,
the Regional Director for Region 26 investigated the
charge and issued a complaint and notice of hearing
(complaint) on December 9; the complaint was amended
at trial. The Company answered, admitting many back-
ground and jurisdictional contentions made in the com-
plaint, but denied all claimed wrongdoings.
The General Counsel makes extensive claims in the
complaint. It is claimed that the Company, as early as
August, engaged in various conduct prohibited by Sec-
tion 8(a)(1) of the Act. The General Counsel makes sev-
eral Section 8(a)(3) employment discrimination counts
against the Company. The allegations related to that sec-
tion of the Act include: a wage-rate reduction for em-
ployee Robert Banks (Banks) in late August or Septem-
ber; written warnings given to employees Diane Jernigan
(Jernigan) and Sara Barnes (S. Barnes) on September 1
and 5, respectively; and the layoff of 19 specifically
named employees on September 16, and the termination
of employment of 18 of those specifically named employ-
ees on March 28.
All parties were given full opportunity to participate
and introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally, and to file briefs.
Briefs filed by counsel for the General Counsel and
counsel for the Company have been carefully considered.
On the entire record in this case, and my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place
of business in Guntown, Mississippi, where it is engaged
in the manufacture of synthetic rope. During the 12
months preceding issuance of the complaint herein, Re-
spondent, in the course and conduct of is business oper-
ations, sold and shipped from its Guntown, Mississippi
facility finished products valued in excess of $50,000 di-
rectly to customers located outside the State of Mississip-
pi. During that same time, Respondent, in the course and
conduct of its operations, purchased and received at its
Guntown, Mississippi facility products, goods, and mate-
rials valued in excess of $50,000 directly from points out-
side the State of Mississippi. The parties admit, and I find
that Respondent is, and has been at all times material, an
employer engaged in commerce and in a business affect-
1 All dates are in 1988 unless otherwise Indicated
ing commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The parties admit, and I find, that the Union is, and
has been at all times material, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In attempting to establish the claims set forth in the
complaint, counsel for the General Counsel relied upon
the testimony of a number of employee witnesses. The
testimony and responses thereto are set forth below es-
sentially in the order established by the complaint.
Because credibility is an issue in the instant case, I
deem it appropriate to make some preliminary comments
thereon. In deciding which of the conflicting versions of
events are more credible, I have given considerable
weight to the demeanor of the witnesses while they were
on the stand. I have considered each witness' testimony
in conjunction with established or admitted facts, inher-
ent probabilities, and reasonable inferences which may be
drawn from the record as a whole. As to any witness
having testified in contradiction of the findings herein,
their testimony has been discredited either as having
been in conflict with the testimony of credible witnesses
or because it was in and of itself unworthy of belief. All
testimony has been reviewed, whether specifically dis-
cussed or not, and carefully weighed in light of the
entire record. As specific credibility conflicts arise, I
shall state more specifically my reasons for crediting or
discrediting any particular witness on any particular por-
tion of their testimony.
A. Brief Background
The Company manufactures various types of synthetic
rope. For example, it manufactures commodity rope
which is rope of a more basic generalized nature such as
one might purchase in a hardware store. It also manufac-
tures specialty ropes specifically made for particular
usage by specific customers. The Company opened its
Guntown, Mississippi facility in 1982 after relocating
from Auburn, New York. During the summer of 1988,
some employees became involved in organizing efforts
on behalf of the Union at the Company. At a union
meeting held on or about August 27, approximately 24
employees signed an in-plant organizing committee letter
for the Union. The letter was presented to Plant Manag-
er Joe Westmoreland (Plant Manager Westmoreland) on
or about August 29. On September 2, the Union filed a
representation petition with the Board. On or about Sep-
tember 16, Company President Stephen Ludt (President
Ludt) notified all employees the Company intended to
implement an immediate layoff of the entire work force
and to permanently eliminate 20 to 30 jobs. All employ-
ees were in fact laid off on September 16. A number of
employees were returned to work on September 19;
however, 24 of those laid-off were advised in writing on
September 23 that their jobs had been eliminated and
that as such they were eligible for unemployment bene-
fits and certain insurance coverage. Some additional em-
COLUMBIAN ROPE CO. 1201
ployees who were still on layoff were recalled up
through mid-November. As of the trial herein, the Com-
pany had not, since mid-November, hired any new em-
ployees or recalled any additional laid-off employees. On
March 28, 1989, all 24 of the permanently laid-off em-
ployees were notified in writing that since they had been
laid off in excess of 6 months, they were terminated. The
Company also experienced layoffs in 1983 and 1984.
Some employees were permanently laid off in both 1983
and 1984. Some of the employees permanently laid off in
1984 were notified in writing they had been terminated
because they had been laid off in excess of 6 months.
B. The Alleged 8(a)(1) Violations
1. The allegations involving Supervisor
Angie Peden2
It is alleged at paragraph 7 of the complaint that the
Employer, acting through Conversion Supervisor Peden,
on or about September 9, threatened employees with loss
of benefits if the employees selected the Union as their
bargaining representative. It is also alleged that on or
about September 13 Peden solicited employee complaints
and grievances and promised employees increased bene-
fits and improved terms and conditions of employment.
Counsel for the General Counsel presented two wit-
nesses, namely, laid-off employees Anita Grim (Grice)
and Ricky Jones (Jones) with respect to the above com-
plaint allegations.
Grice, a 3-year employee, testified she demonstrated
her support for the Union by wearing a union button at
work, signing the union's in-plant employee organizing
committee letter that was presented to the Company on
August 29, and by attending union meetings. Grice said
that after she openly demonstrated her support for the
Union, her supervisor, Peden, asked to talk with her.
Grice stated the two of them spoke alone on September
13. According to Grice, Peden asked how she felt about
the Union and if she knew how others felt. Grice said
she told Peden she knew how others felt and Peden
asked if she knew what she was doing. Once told Peden
she did. Grice said Peden then stated if she ever wanted
to ask her anything or just needed to talk they could do
so. Once told Peden she was aware she could talk to her
to "a certain extent." Grice told Peden that if everyone
had a heart like she (Peden) did and felt the way Peden
did, the employees would not have to go through what
they were in fact going through. According to Once,
Peden did not specifically discuss what they could talk
about. Once said Peden asked her two more times if she
knew what she was doing.
Laid-off employee Jones, who was one of those who
signed the Union's in-plant organizing letter, stated he
commenced wearing a union cap and button at work
starting in September. He said that after he started to do
so, Supervisor Peden specifically told him while they
were alone, on or about September 9, "You know we
won't be a family no more and I can't help you out."
a I note Peden's last name is spelled P-E-D-E-N at some places in the
record and P-E-D-A-N at other places. There is no dispute that it is the
same person.
Jones testified he told Peden he did not know anything
about it. When pressed further about the conversation by
counsel for the General Counsel, Jones gave the same
above-quoted answer a second time and added this time
that Peden did not say why she could not help any
more. After then being asked by counsel for the General
Counsel if the word union was mentioned in the conver-
sation, Jones dutifully stated it was. Jones then testified
Peden said "Well, you know, I've been helping you out
and the Union is going to be against you and before
you." Jones then said he could not recall anything else
being said in the conversation. In response to questions
by the court, Jones stated the very first thing Peden said
to him on the occasion in question was, "you know this
Union is going to be against you." Jones said he respond-
ed to Peden by telling her he didn't know anything
about the Union. Jones asserted the above was all that
was said in the conversation. After still further question-
ing by counsel for the General Counsel, Jones testified
Peden said, "You know, we ain't going to be a family no
more and I can't help you out." Jones noted that prior to
this conversation with Peden, she had helped him weigh
items which he "guessed" was not part of her job.
Peden was not called to testify herein.
Grice's testimony, as outlined above, was plausible,
reasonable, uncontradicted, and therefore accepted.
Under all the circumstances, I find Peden's questioning
Once about the Union and her subsequent comments to
thrice constituted unlawful interrogation in violation of
Section 8(a)(1) of the Act. See Rossmore House, 269
NLRB 1176 (1984), affd. sub nom. Hotel & Restaurant
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). Not only did Peden ask Once how she felt about
the Union but also inquired about the union sentiments of
other employees. Peden expressed no valid purpose for
her inquiry nor did she assure Grim that no reprisals
would be taken against her. The hostility in Peden's
questions is exhibited by the fact she repeatedly asked
Once if she was sure she knew what she was doing.
I do not find Peden's invitation to Once to talk if
Once ever needed to or to be available to answer ques-
tions to constitute a solicitation of grievances and/or a
promise of improved terms or conditions of employment
as alleged in the complaint.
Because employee Jones could not give a consistent
account of what was said in his asserted conversation
with Peden, I am persuaded his testimony cannot be re-
garded as wholly trustworthy, accurate, or reliable. Ac-
cordingly, I have not relied on it to support any finding
of a violation of the Act.
2. Alleged unlawful conduct by Plant Manager
Westmoreland in August
It is alleged at paragraph 8 of the complaint that the
Employe', acting through Plant Manager Westmoreland,
in late August in separate conversations with employees,
solicited employee complaints and grievances and prom-
ised improved benefits and terms and conditions of em-
ployment and solicited employees to influence other em-
ployees to repudiate their membership in and support for
the Union. Also it is alleged that Westmoreland promised
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees unspecified benefits and improved terms and
conditions of employment if they abandoned their sup-
port for the Union.
Counsel for the General Counsel presented laid-off
employees Diane Jernigan (D. Jernigan), Larry Jernigan
(L. Jernigan), and Banks in support of the above allega-
tions.
L. Jernigan testified he had a conversation with Plant
Manager Westmoreland alone in Westmoreland's office
in early August. L. Jernigan said he was in Westmore-
land's office because he had overslept and was about 15
minutes late reporting for work that night. L. Jernigan
told Westmoreland he was 15 minutes late and according
to L. Jernigan, Westmoreland said he wasn't really wor-
ried about it. Westmoreland told L. Jernigan, "You take
care of me, I'll take care of you" and stated "You know
what I'm talking about, don't you?" L. Jernigan first told
Westmoreland he understood but then said he did not.
According to L. Jernigan, Westmoreland said in a low
and quick way "the Union." L. Jernigan responded,
"Oh, okay." Westmoreland then asked L. Jernigan if he
knew he (Westmoreland) could get in trouble for this. L.
Jernigan said he did and the conversation ended at that
point.3
L. Jernigan testified Westmoreland told him to tell his
supervisor he was supposed to have been at work later
than the time he actually reported for work on the night
in question.
L. Jernigan testified that in mid-August, he experi-
enced car trouble while visiting relatives in Memphis,
Tennessee. As a result, he was unable to return for work
as scheduled. He attempted to contact the Company but
his supervisor, Mink, would not accept his collect tele-
phone call. L. Jernigan said that after he returned to
work, his supervisor, Mink was about to discipline him
when he protested saying he did not think it was right
because he had attempted to call in but Mink would not
accept his collect call. L. Jernigan said Supervisor Mink
and Plant Manager Westmoreland thereafter arranged, in
his absence, for him to receive a warning only as op-
posed to a suspension for this incident. 4 Jernigan stated
that after this incident had been resolved Westmoreland
asked him if it had been worked out. L. Jernigan told
Westmoreland it had been. Westmoreland told L. Jerni-
gan to go back to work and asked "What do you think
about all this union talk?" L. Jernigan told Westmore-
land he was not for the Union, was not too sure about
the Union, and didn't think the Company needed one be-
cause it was too small. Westmoreland agreed and ended
the conversation.
According to L. Jernigan, Westmoreland once again,
on a later occasion, asked him if he was for the Union.
Jernigan told Westmoreland he was not. Nothing else
was said in the conversation.
D. Jernigan testified Plant Manager Westmoreland
talked to her alone at her work station around August
20. In the conversation, he asked her if she had heard
3 L. Jernigan said he could have been, but was not, suspended for
being late for work that evening.
4 L. Jernigan said that under company policy, he could have been sus-
pended. He said he had not openly expressed his union sentiments at the
time of this second incident.
about the Union having a meeting. D. Jernigan told
Westmoreland she had been at the meeting. Westmore-
land asked what happened. D. Jernigan told him the em-
ployees had talked about problems they faced at the
Company. Westmoreland wanted to know how many
employees attended the meeting. Jernigan told him ap-
proximately 20 to 25. Westmoreland wanted to know
who spoke at the meeting and D. Jernigan told him she
really did not know. D. Jernigan told Westmoreland one
woman had complained that she was being forced to
take a job she did not want. Westmoreland wanted to
know which employee but D. Jernigan refused to tell
him. D. Jernigan told Westmoreland she (Jernigan) had
complained at the meeting about being written up for
being 1 minute late in reporting for work. D. Jernigan
stated Westmoreland asked what she thought it would
take to stop the Union. D. Jernigan told Westmoreland
he was going to have to talk to the employees who had
problems because they were the ones most upset with
the Company. Westmoreland then asked D. Jernigan if
she thought there was enough interest in the Union to
bring it in at the Company. D. Jernigan told Westmore-
land she thought there was. Westmoreland told Jernigan
the employees had tried before to bring in a union but
had been unsuccessful and added they did not need a
union. Jernigan stated Westmoreland walked off at that
point.
D. Jernigan testified about another meeting with West-
moreland that took place around August 26 in West-
moreland's office following a production meeting that
Jernigan had attended. Westmoreland asked D. Jernigan
to stay after everyone else had left the production meet-
ing. D. Jernigan testified Westmoreland leaned close to
her and told her what he had to say was just between
the two of them and should not be repeated outside his
office. Westmoreland told D. Jernigan he knew what
was going on at the plant. She asked if he meant the
Union and Westmoreland said he did. D. Jernigan ac-
knowledged she knew and Westmoreland told her if she
would take care of him, he would take care of her and
then walked out of his office.
Banks testified that on one occasion in August, Plant
Manager Westmoreland came by his work station on a
golf cart and invited him to take a ride. The two of them
proceeded to the trash compactor area where, according
to Banks, Westmoreland asked "What would it take for
[him] to stop it?" Westmoreland commented that Banks
had been the spokesperson for the group for so long and
again asked what it would take. Banks told Westmore-
land the Company had waited too long to do something
about "it." Banks also told Westmoreland he was 100
percent for "it" and then Westmoreland drove off on his
golf cart. Banks said the word "union" was never men-
tioned in the conversation but he understood Westmore-
land to be talking about the Union.
Plant Manager Westmoreland, although called as a
witness by both the Company and the government, did
not testify about the above conversations involving the
two Jemigans and Banks. Accordingly, I accept the
three witnesses' above-outlined uncontradicted testimony
regarding their conversations with Westmoreland.
COLUMBIAN ROPE CO. 1203
I find Westmoreland's comments to L. Jernigan in
early August reasonably tended to coerce him. L. Jerni-
gan was late reporting for work and was rightly con-
cerned about being disciplined under the Company's pro-
gressive disciplinary procedures. Westmoreland told L.
Jernigan that he was not worried about L. Jernigan's
being late and further assured Jernigan that if he would
take care of him (Westmoreland) he (Westmoreland)
would take care of L. Jernigan. Westmoreland made sure
L. Jernigan understood he was talking about the union
situation at the Company. That Westmoreland could de-
liver on his promises is evident from the fact that except
for the president, Westmoreland was the highest official
at the Company. This fact would not have been lost on
L. Jernigan. It was implicit in Westmoreland's comments
that not only would L. Jernigan not be disciplined for
the occasion at hand but he would be provided some un-
specified benefit in the future if he took care of West-
moreland with respect to the Union.
In mid-August when L. Jernigan again had an attend-
ance problem that could have resulted in his being sus-
pended, he was not. Thereafter, Plant Manager West-
moreland asked L. Jernigan if everything had been
worked out regarding this attendance problem and when
told it had been, Westmoreland asked L. Jernigan what
he thought about "this union talk" at the Company.
Westmoreland's inquiry of L. Jernigan on this latest oc-
casion constituted unlawful interrogation in violation of
Section 8(a)(1) of the Act. Westmoreland's questioning
of L. Jernigan took place in the context of his reminding
L. Jernigan that his attendance problems at the Company
had once again been taken care of. I note that L. Jerni-
gan had not revealed his true sentiments about the Union
at this or the earlier time when Westmoreland intervened
to help him but rather had expressed his opposition to
the Union. Westmoreland neither had nor expressed to
L. Jernigan any valid purpose for questioning him.
I am persuaded that Westmoreland's questioning D.
Jernigan on or about August 20, had a reasonable tend-
ency to interfere with, restrain, and coerce her in the ex-
ercise of her rights guaranteed by Section 7 of the Act,
and, as such, violated Section 8(a)(1) of the Act. First,
Westmoreland initiated the questioning. Secondly, he not
only asked about a union meeting that had taken place,
but inquired further about how many employees had at-
tended the meeting, what had happened at the meeting
and who, among the employees, spoke at the meeting.
When told that a specific employee had complained
about the Company, Westmoreland sought to find out
the identity of that employee. Thirdly, in the same con-
versation, Westmoreland went even further and asked D.
Jernigan what she thought it would take to stop the
Union. Fourthly, Westmoreland inquired about the over-
all strength of the Union at the Company. Accordingly,
on balance, I am persuaded Westmoreland's questioning
of D. Jernigan not only constituted unlawful interroga-
tion but his inquiry as to what it would take to stop the
Union constituted a solicitation of grievances with an im-
plied promise to remedy the same.5
5 As is the case with D. Jernigan, I find Westmoreland violated the
Act by soliciting employee grievances and impliedly promising to
I find Westmoreland's comments to take care of D.
Jernigan if she took care of him with respect to the
Union constituted an unlawful promise of unspecified
benefits in violation of Section 8(a)(1) of the Act. West-
moreland's comments took place in the seat of authority
at the plant, namely his office, and he made sure D. Jer-
nigan understood he was referring to the Union when he
asked her to take care of him and he in turn would take
care of her.
3. Further alleged unlawful conduct involving Plant
Manager Westmoreland
It is alleged at paragraph 9 of the complaint that the
Employer, acting through Plant Manager Westmoreland,
on or about August 21, interrogated employees concern-
ing their activities on behalf of and support for the
Union as well as the union activities of other employees.
It is also alleged that on or about July 21, he solicited
employee complaints and grievances and promised em-
ployees increased benefits and improved terms and con-
ditions of employment.
Employee Lenell Daniel (Daniel) testified that near
the end of July after the Union had started its organizing
drive, Westmoreland talked to him about the Union.
Daniel said he was at the timeclock about to clock out
when Westmoreland told him to remain on the clock and
they would go for a ride to talk. While riding Westmore-
land asked Daniel if he had heard about the union activi-
ties at the Company. Daniel said he had and Westmore-
land wanted to know what he thought he should do
about it. Daniel told Westmoreland to talk with the em-
ployees and find out what they were complaining about.
Westmoreland then asked Daniel if he was going to get
involved in it and he assured Westmoreland he was not.
Daniel also testified that sometime after his ride with
Westmoreland that Westmoreland came to his work sta-
tion and asked if he knew where the employees were
going to hold a union meeting. Daniel told Westmore-
land he did not but could find out. Westmoreland asked
Daniel if he was planning on attending the meeting.
Daniel told him he was not. Daniel testified Company
President Ludt walked up at that point and commented
that the union thing scared Westmoreland. Daniel agreed
and Ludt and Westmoreland walked away.
Daniel testified he attended one of the employee group
meetings conducted by Westmoreland on July 21. He
stated Westmoreland asked the employees what their
problems were and they made suggestions at the meet-
ing. He said one employee, for example, asked that the
Company put up a suggestion box which he said the
Company thereafter did. Daniel said Westmoreland
stated at the end of the meeting the Company did not
want a union at its plant.
D. Jernigan testified about the July 21 meeting she at-
tended at which Westmoreland spoke. She stated West-
moreland said the Company would like to hear whatever
ideas, suggestions, or problems the employees had. D.
Jernigan said the employees discussed "vacations," "the
remedy the same when he asked Banks in August, "What would it take
for [Banks] to stop it [the Union]."
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
raise that was expected," and "something about insur-
ance." D. Jernigan told Westmoreland "Since so many
people are having problems and you don't want a union
to come in [she thought an employee committee that
would work sort of like the safety committee would help
a lot of these problems." Westmoreland told D. Jernigan
he did not know if that could be accomplished but he
would check into it, that he thought it was a good idea.
An employee committee was later formed but, according
to D. Jernigan, it did not work out as well as she had
thought it would.
Large rope department employee Carl Scales (Scales)
testified about the July 21 meeting he attended. Accord-
ing to Scales, Westmoreland told the employees he knew
there was trouble in the plant and that a lot of the em-
ployees were dissatisfied, therefore, he wanted sugges-
tions from them regarding what should be done. West-
moreland specifically asked Scales for suggestions but
Scales made none. Westmoreland told the employees he
was aware they were trying to organize a union at the
Company but the Company did not have time to negoti-
ate with a union.
Plant Manager Westmoreland testified he, along with
personnel assistant Cooley, met with all employees on
either July 21 or 22 in small departmental group meet-
ings. He said employees made various suggestions at the
meetings such as establishing an employee communica-
tions committee and putting up a suggestion box at the
plant. He testified other subjects such as holiday pay, va-
cation days, and air-conditioning in the facility were also
discussed. Westmoreland said he and Cooley made notes
of the employees' comments and suggestions so they
could get "a general . . . overview of the whole thing."
Westmoreland said he mentioned at the conclusion of at
least some of the meetings that he understood there was
some union activity in the plant and that the Company
was not in favor of having a union because of "an un-
pleasant experience with labor unions" at another loca-
tion. Westmoreland said that after the meetings, certain
of the employees' comments and suggestions were acted
upon. He said an employee communications committee
was established and met on one occasion. He also stated
an employee suggestion box was set up in the plant.
Westmoreland testified it had been his practice to hold
departmental meetings with employees during his entire
employment with the Company. He said he would "give
this spiel of what [he] had to tell [the employees] and
then solicit questions and responses from [the employ-
ees]." Westmoreland stated, "we usually [got] some
pretty good things" from the employees comments and
suggestions. He testified that employee concerns includ-
ing air-conditioning (which he said had been trouble-
plagued all along), vending machines, parking lot lights,
floating holidays, and "just housekeeping. . . day-to-day
things" had been discussed and acted upon pursuant to
employee suggestions ever since he had been there.
Westmoreland testified he sometimes met with employ-
ees in small departmental meetings as often as twice per
week but that the meetings were usually "event driven"
and as such were not scheduled for any specific time or
date. Westmoreland testified he had met with all depart-
ments in separate meetings but could not recall the spe-
cific dates of the meetings or what subject matters had
been discussed on any given dates. Westmoreland said
Cooley had not accompanied him on previous meetings,
however, he added she had only been with the Company
for a short time.
Westmoreland was not questioned about any
conversation[s] he may have had with discharged em-
ployee Daniel near the end of July. Accordingly, I
accept Daniel's uncontradicted testimony regarding his
conversations with Westmoreland as set forth earlier.
I am persuaded, under all the circumstances, that
Westmoreland engaged in unlawful interrogation when
he questioned Daniel in late July about the Union. West-
moreland specifically sought Daniel out and questioned
him while the two were riding around the local area.
Daniel could not easily have broken off the conversation
even if he had wanted to. Westmoreland not only asked
Daniel if he had heard about union activities at the Com-
pany but he also wanted to know specifically if Daniel
was going to get involved with the Union. Westmore-
land did not stop his questioning at that point but pro-
ceeded further and asked Daniel what he thought should
be done about the Union. This additional inquiry of
Westmoreland constituted a solicitation of grievances
with an implied promise to remedy the complaints. That
Westmoreland's comments amounted to a solicitation of
grievances is illustrated by Daniel's answer to Westmore-
land's inquiry in that he told Westmoreland he should
talk with the employees to find out what their com-
plaints were. Westmoreland likewise engaged in unlawful
interrogation when he, on a later occasion, asked Daniel
if he knew where the employees were going to hold a
particular union meeting. Again, this was not a simple
limited inquiry in that Westmoreland also asked Daniel if
he was planning on attending the union meeting. For
Daniel to respond to Westmoreland's questions, he had
to reveal his sentiments toward the Union.
It is not disputed that Plant Manager Westmoreland
held a series of meetings with employees on or about
July 21 at which employee dissatisfactions with the
Company were sought out and discussed. The question is
whether Westmoreland's actions constituted a solicitation
of employee grievances with an implied promise to
remedy such grievances. Absent a previous practice of
doing so, the solicitation of grievances during an organi-
zational campaign accompanied by a promise, expressed
or implied, to remedy such grievances violates the Act.
See Reliance Electric Co., 191 NLRB 44 (1971) and
Raley 's, Inc., 236 NLRB 971 (1978). It is the promise, ex-
pressed or implied, to remedy the grievances that consti-
tutes the essence of the violation. Solicitation in the
midst of a union campaign inherently constitutes an im-
plied promise to remedy the grievances. Gurley Refining
Co., 285 NLRB 38, 40 (1987). The fact an employer's
representative does not make a commitment to specifical-
ly take corrective actions does not abrogate the anticipa-
tion of improved conditions expectable for the employees
involved. In the case sub judice, Westmoreland invited
the airing of employee concerns, complaints, and sugges-
tions and advised the employees he would check into
their concerns to see what could be done about them.
COLUMBIAN ROPE CO.. 1205
Certain of the employee suggestions and concerns were
adopted or acted upon. Examples were that the Compa-
ny, as suggested by an employee, establish an employee
communications committee and placed an employee sug-
gestion box in the plant. All of this took place during the
time the Union was engaging in an organizational cam-
paign at the Company. Furthermore, Westmoreland
made mention at the July 21 meetings that the Company
understood there was union activity going on at the time
and that the Company did not want, or favor, a union.
Absent a past practice of soliciting employee grievances
and acting thereon, Westmoreland's actions after and
comments at the employee meetings violated the Act. I
am persuaded Westmoreland had just such a past prac-
tice of airing employee complaints and acting thereon.
He credibly testified it had been his past practice to hold
employee departmental meetings, sometimes as often as
twice a week, where he would give his "spiel" on some
matter and then "solicit questions and responses" from
the emplayees. Westmoreland testified he had received
some "pretty good" suggestions from the employees in
past meetings. Some of the concerns aired at the pre-July
meetings such as air conditioning and holidays were also
aired at the July meetings. Thus, I am persuaded the
Company established it had a past practice of airing
"day-to-day" problems of the employees at various types
of employee meetings. Accordingly, I shall dismiss the
allegations of paragraph 9(b) of the complaint.
4. The solicitation rule from April 21 to
September 1, 1988
It is alleged at paragraph 10 of the complaint that
since on or about April 21 until on or about September
1, the Employer maintained the following rule in its em-
ployee handbook:
SOLICITATIONS.
The company wishes to protect its employees from
annoying requests for contributions, etc. No solicita-
tion for any reasons may be made without written
permission of the personnel manager.
The Company does not dispute the above complaint
allegation but asserts it changed the rule as soon as it
was informed by its labor counsel that the rule was in-
valid.
Employee Banks testified that near the end of August,
he distributed leaflets for the Union in the brealcroom at
the plant. He said Personnel Assistant Cooley told him
he could not pass out leaflets of any kind unless she
checked them first. She then asked to see one of his leaf-
lets which she retained. According to Banks she said he
could not pass them out at any time at the Company.
Banks said he asked why and Cooley told him such was
prohibited by the employee handbook. Banks asked
Cooley to show him the part of the handbook she re-
ferred to. She promised to do so later that day. Some-
time later that same day, Banks again asked Cooley to
show him the handbook provision she referred to. Banks
testified that just before the workday ended, Cooley
posted a notice on the bulletin board and also informed
him that the Company's solicitation policy set forth in
the employee's handbook would no longer be followed.
Employee Angela Collins (Collins) testified she and cer-
tain other employees distributed prounion pamphlets in
and just outside of the breakroom in late August for a
few days until Personnel Assistant Cooley posted a
notice on the bulletin board about solicitation. According
to Collins, Cooley said the employees could not solicit
nor distribute literature of any kind in the plant.
Personnel Assistant Cooley posted the following
notice on the bulletin board at the Company on Septem-
ber 1:
Notice to All Employees
All prior rules pertain[ing] to solicitation and distri-
bution by employees (regardless of whether they
appear in handbooks, on bulletin boards or else-
where), are revoked immediately. The new rules re-
garding solicitation and distribution by employees,
which now become effective, are as follows:
Employees are prohibited from soliciting during
working time. Distribution of literature and other
material is prohibited in work areas at all times
and in nonwork areas during working time. Solic-
itation and distribution may not be engaged in
either during the working time of the employee
subjected to the solicitation or distribution or the
working time of the employee engaging in such
conduct. No littering of Company property is
permitted at any time.
Cooley denied speaking with Collins about the solicita-
tion policies of the Company. She further denied telling
Collins she could not distribute union literature or that
the employee handbook had been modified to prohibit all
distribution of literature.
There is no dispute but that the solicitation rule con-
tained in the employee handbook up until September 1
was invalid under the Act. However, there is no conten-
tion that the new rule posted on September 1 is invalid in
any manner. The notice to all employees posted on Sep-
tember 1, made it clear that all prior rules were immedi-
ately revoked and that the new rule was the policy of
the Company.
Employees Banks and Collins testified that Cooley
prohibited them from distributing union literature in late
August. Banks testified he was precluded from distribut-
ing union literature for a portion of one day but was on
that same day personally informed the old rule was no
longer in effect and advised of the Company's new
policy. I have not relied on Collins' testimony to estab-
lish any actions she asserts Personnel Assistant Cooley
took against her and other employees. Cooley impressed
me that she testified truthfully when she said she never
discussed the Company's solicitation or distribution poli-
cies with Collins. I likewise credit her testimony that she
never told Collins the employees could not solicit or dis-
tribute literature of any kind in the plant. Although the
old rule set forth in paragraph 10 of the complaint is in-
valid, the Company has conclusively established it re-
voked that rule and there is no showing the new rule has
been invalidly enforced in any manner on or after Sep-
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tember 1. In fact, the only established enforcement of the
old rule was for less than a full day and only involved
one employee. In light of the above, I shall dismiss para-
graph 10 of the complaint.
5. Alleged restriction of employees to the
breakroom or working areas while on breaks
It is alleged at paragraph 11 of the complaint that the
Employer, acting through Shipping Supervisor John
Evans, disparately restricted an employee to the employ-
ees' break area or to the employees' work area during
breaktime because of the employee's union membership,
activities, and sympathies.
Employee Banks testified that prior to his involvement
with the Union, he spent portions of his breaktime talk-
ing with various employees at their workstations during
the employee's working time. He said he visited through-
out the plant but spent most of his breaktime in the con-
version and extrusion departments. Banks testified he had
been observed doing so by various supervisors including
Plant Manager Westmoreland. Banks said that after the
advent of the Union and after he had openly demonstrat-
ed his support for the Union, his supervisor, Evans, told
him he would have to stay in his own work area or in
the breakroom during his breaktimes. Banks testified he
asked Evans about other employees visiting different de-
partments. He stated Evans said the restrictions applied
to them also. Banks said he stop going to the conversion
department but that others (Mise Tynes, Melvis Harris,
and Eddie McGee) did not.° Banks acknowledged he
and conversion department employee L. Barnes were
good friends and that he liked to visit with her when he
was on break. He stated that in fact he spent a great
number of his breaks at Barnes' work station. While visit-
ing in the conversion department he said he even
touched employee Barnes but he denied being aware
there were any complaints by employees who worked
around Barnes about his visiting with her or his conduct
toward her.7
Plant Manager Westmoreland testified the conversion
department supervisor complained to him in the summer
of 1988 that employee Banks was spending his break-
times in the conversion department with employee L.
Barnes at times when Barnes was not on break. West-
moreland testified he had, from time to time, observed
6 Employee Linda Barnes (L. Barnes) corroborated Banks' testimony
as outlined above to the extent she stated Banks freely came to her de-
partment before the open union activity at the plant started but that after
that time he ceased to do so. She stated employees Tynes and Hams
never stopped coming to her department. Employee Bridgette Anderson
(Anderson) also testified Banks came to the conversion department prior
to the advent of the Union but stopped doing so after that time. She
stated Harris never stopped at all. Employee Nell Bishop's testimony was
essentially the same as that of Anderson with respect to Banks' visits to
the conversion department.
7 L. Barnes stated Supervisor Peden told her at the time Banks was
coming into the department that an employee had complained about
Banks visiting with her. L. Barnes testified Peden said, "[cl]on't pay it any
attention they're just jealous. They're just jealous he don't talk to them
. . . just do your job and don't worry about it." Employee Bishop testi-
fied Banks touched Barnes when he visited the department and stated
there were complaints from other employees in the department about
Banks coming in and rubbing up against Barnes and creating a scene in
the department.
Banks visiting in the conversion department and had
asked him not to do so. Westmoreland stated Banks visits
to the that department had "gotten worse." Westmore-
land said he met with the conversion department super-
visor as well as with Banks' immediate supervisor,
Evans. He said he told the two supervisors "we're just
going to have to stop this. It is bad enough to be hap-
pening, but when the people—co-workers start complain-
ing, then we are going to have to do something about
it." Westmoreland instructed Supervisor Evans to stop
Banks' disruptive activities and how he (Evans) handled
it was fine with him that he just did not want to hear
about it any more. Westmoreland said other employees
went into the conversion department but that none
stayed or had long meetings or had physical contact
with the employees. Westmoreland testified Supervisor
Evans spoke to several employees about visiting other
departments at the time he spoke with Banks about his
visits to the conversion department. Westmoreland said
Banks was not told not to go into the conversion depart-
ment but rather was told not to go there and sit down.
Westmoreland pointed out that Banks had to go through
the conversion department in order to perform portions
of his assigned duties. Westmoreland stated employees
Tynes and Harris were also specifically told not to hang
around in the conversion department.
There is no doubt that Banks was a strong union sup-
porter. His support for the Union was well known to the
Company at the time he was spoken to by Supervisor
Evans about visiting other departments. Furthermore,
Plant Manager Westmoreland specifically knew of
Banks' union sentiments at the time he instructed Super-
visor Evans to speak with Banks about his visiting
around at the plant. Notwithstanding the above, I am
persuaded the restrictions the Company placed on Banks
in August were not an attempt to prevent him from en-
listing additional support for the Union as contended by
counsel for the General Counsel but rather were for
valid business considerations. Counsel for the General
Counsel failed to establish that Banks was treated differ-
ently from other employees or that the reasons advanced
by the Company for the restrictions were pretextual.
First, the restrictions placed on Bans were as a result of,
and in response to, complaints about his engaging in dis-
ruptive conduct in the conversion department in that he
was visiting with and touching an employee in that de-
partment. It is undisputed that this was the first time
Plant Manager Westmoreland had been made aware of
any complaints of this nature. There is no showing that
any of the other employees that allegedly visited the
conversion department had engaged in any conduct simi-
lar to that engaged in by Banks. That such conduct took
place is not disputed. Banks admits he spent a great deal
of his break times at L. Barnes' machine and that he
touched her. Employee Bishop testified Banks and L.
Barnes touched and stated she was aware there were
complaints from employees "about Mr. Banks coming in
and rubbing up against Ms. Barnes and creating a scene
in the department." Even L. Barnes acknowledged she
was told by her supervisor about an employee complaint
related to Banks coming into the department to visit
COLUMBIAN ROPE CO. 1207
with her. Secondly, Banks acknowledged Supervisor
Evans told him the restrictions applied to other employ-
ees as well as to himself. Employees Tynes and Harris
were specifically told not to hang around in the conver-
sion department. Thirdly, I note Westmoreland and
Evans did not totally restrict Banks from the conversion
department but rather restricted him, as well as others,
from sitting down or hanging around in that department.
Because I find the Company did not restrict Banks or
any other employee because of their union activities, I
shall dismiss paragraph 11 of the complaint.
6. The November general wage increase
It is alleged at paragraph 12 of the complaint that on
or about November 1, the Employer announced and
granted to its employees a 35-cent hourly increase in
wages.
It is undisputed that on November 1, the Company an-
nounced a 35-cent per-hour general wage increase effec-
tive on or about November 6. It is also undisputed that
the Board conducted a representation election at the
Company on November 2. President Ludt testified it had
been the Company's practice for 3 or 4 years to review
employees' wages and grant increases on or about
August 1 of each year. According to President Ludt, the
Company did not follow its August 1 review of wages
and granting of a pay increase in 1988 because of the fi-
nancial condition of the Company. President Ludt noti-
fied the employees in writing on July 14, about the finan-
cial condition of the Company. The letter, a copy of
which was given to all employees on that date, reads in
part as follows:
Our slump in financial performance continued in
May. We lost $36,887 on sales of $963.659.
Efficiency was also low at .65%. June figures are
not ready yet. I am hoping we will show at least a
break even with no losses for June.
Last year we agreed to review compensation this
year on August 1.
In view of our recent poor financial performance
I don't feel it is in our best interest to raise wages
and salaries right now. Since we are losing money it
is best to use what funds we have to buy materials
and supplies to keep the plant and our jobs going. I
would like to suspend consideration of all wage and
salary increases (both plant and office) for three
months, until November 1, and I hope you will
agree and bear with it until that time.
President Ludt testified that at the time he prepared
and distributed his July 14 letter, he was unaware of any
union activities at the Company.° Ludt's testimony in
this respect is generally supported by employee Scales
who was the one that first contacted the Union.°
8 There is no contention that the July 14 postponement announcement
violated the Act in any manner.
° Scales said he first contacted the Union at its Chicago, Illinois loca-
tion around the first of July. The Chicago office of the Union referred
him to one of its locals in Mississippi. Scales said that after he did not
hear from the Union for a week or so, he again called the Union's Chica-
go office. Scales stated someone from the Chicago office informed him
President Ludt testified that around November 1, he
"studied the wage situation in the community" and "the
[C]ompany's progress on its restructuring" and notified
the employees there would be a pay increase."
Ludt issued a memoranda on wages to all employees
on November 1 that reads in part as follows:
As promised on July 14th, compensation has been
reviewed. A general wage increase of 35 cents for
all hourly employees will go into effect for the pay-
roll period beginning November 6, 1988.
President Ludt testified that on two prior occasions
(1986 and 1987), scheduled wage increases had been
postponed by the Company. Ludt said the August 1986
wage increase was delayed for financial reasons until
February 1987. He stated the August 1987 wage increase
was not given until October of that year due to an over-
sight on the part of the Company.
Counsel for the General Counsel contends the timing
of the 1988 wage increase, which was 1 day before the
Board conducted a representation election at the Compa-
ny and the amount of the increase which was greater in
cents per hour than in previous years, clearly demon-
strated the Company's motivation" was to influence its
employees to vote against the Union and as such the
Company's actions violated the Act as alleged in the
complaint.
The Company, on the other hand, asserts President
Ludt was not aware of any union activity when he an-
nounced the postponement of the review and increase of
wages from August until November. Furthermore, the
Company contends there was no way for President Ludt
to have known back in July that the November 1 date
set to review an increase in wages would fall 1 day
before a Board-conducted election at the Company. Fi-
nally, the Company contends it was simply following
Board law of proceeding with the granting of benefits as
it would have done had the Union not been conducting
an organizational campaign at its facility.
I find merit in the Company's position with respect to
its granting a general wage increase to its employees in
November. First, the evidence reflects the Company had
a past practice of delaying or postponing wage increases
for, among other reasons, financial considerations. Thus,
there was nothing novel about the Company delaying
wage increases. Secondly, although the timing of the an-
they had in fact contacted a local in Mississippi and someone from that
local would be contacting him soon. Not long thereafter, someone from a
Mississippi local of the Union did contact Scales and told him they would
be sending a representative of the Union to meet with the employees.
Scales said it was at that point that he told the other employees of his
contacts with the Union.
1 ° The reports Ludt said he studied were the North Nississippi wage
Surveys for 1986, June 1987, and May 1988, along with the Mississippi
State Employment Service Labor Market Trends Reports for 1985 and
September 1988, which reports reflect the unemployment rates for the
State of Mississippi. Ludt said he compared the above to the Company's
own wage rates and determined an Increase was appropriate.
" In support of her contention that the Company's motives were un-
lawful in announcing and granting the 1988 wage increase, counsel for
the General Counsel points to the fact that some of the information Presi-
dent Ludt indicated he relied on in arriving at his decision to grant the
wage increase was outdated.
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nouncement and granting of the increase may have been
beneficial to the Company, such does not, standing
alone, require a finding that the Company's actions were
unlawfully motivated. Company President Ludt credibly
testified that at the time he announced the delay for the
wage review and increase for 1988 he was unaware of
any union activities at the Company. In his July an-
nouncement, he informed the employees the matter
would be delayed until November 1. Thus, Ludt estab-
lished the November 1 date at a time when he could not
have know the Board would schedule a representation
election at the Company on November 2. Further evi-
dence that he could not have known is demonstrated by
the fact the Union did not file its petition in Case 26-
RC-7090 until September 2. Thus, the timing, standing
alone, does not establish the Company was unlawfully
motivated in its actions related to the November 1 wage
increase. Furthermore, the amount of the November in-
crease was not excessive nor was it out of line with pre-
vious increases. The evidence reflects that in percentage
terms, the November increase was smaller than one pre-
vious increase and larger than another. Finally, the pur-
pose for this increase, as testified to by President Ludt,
was to bring the employees' wages into line with wages
being paid to similarly situated employees in the general
area. Thus, in light of all the above, I find counsel for
the General Counsel has failed to establish the Company
violated the Act when it announced and granted its em-
ployees a 35-cent-per hour general wage increase in early
November. Accordingly, I shall dismiss paragraph 12 of
the complaint.
7. The wage rate reduction for employee Banks
It is alleged at paragraph 13 of the complaint that on
or about a date between August 29 and September 16,
the Employer reduced the wage rate for its employee
Banks.
Banks testified that prior to the time he was laid off,
and he could not be more specific with respect to the
date, 12 he was given a 50-cent per hour reduction in
pay. Banks testified on direct examination that Plant
Manager Westmoreland told him his wages were being
reduced to make his pay equal with the rest of the em-
ployees. During cross-examination, Banks denied his 50-
cent-per-hour wage reduction resulted from or was relat-
ed to the fact he no longer served as a section leader or
as an acting supervisor for the Company. He did, how-
ever, acknowledge while being cross-examined that he
was told when he worked as an acting supervisor, he
would be paid 25 cents more per hour and also that
when he served as a section leader he would be paid an
extra 25 cents per hour. Banks at some point had worked
in both positions but acknowledged that at the time his
wages were reduced, he was no longer working as an
acting supervisor or as a section leader.
Plant Manager Westmoreland testified he made the de-
cision to reduce Banks' wages by 50 cents per hour just
12 Banks could not say if his wage reduction occurred before or after
he and others delivered a letter to the Company identifying the members
of the Union's in-plant organizing committee. As noted at various places
herein, that letter was delivered on August 29.
prior to the time Banks and the others were laid off in
September. Westmoreland said it was brought to the
Company's attention that some employees were being
paid out of classification and that when a review of the
Company's records indicated that was the case, Banks'
wages were reduced. Personnel Assistant Cooley testi-
fied that employee Lamar Banks complained to her in
August that some employees, whom he did not identify,
were being paid more than they were entitled to based
on the type of work they were performing. Cooley
looked into the matter and discovered Banks and Verne-
dia Robinson were being overpaid by Banks by 50 cents
and Robinson by 25 cents per hour. She testified the
records established Banks was overpaid based on the fact
he had served as an acting supervisor and also as a sec-
tion leader on different occasions and had been given a
25-cent-per-hour wage increase for each function.
Cooley said the increases should have been but never
were thereafter rescinded even though Banks ceased to
perform either of those two duties. Cooley testified Rob-
inson's wages were reduced 25 cents per hour at the
same time that Banks' wages were reduced. Cooley said
she informed both Banks and Robinson that the Compa-
ny's records indicated they were being paid too much
and as such their wages would be reduced." Cooley as-
serted Banks said he understood his wage reduction and
that Robinson gave her okay to the reduction in her
wages. Cooley testified she had changed various other
employee wages during her employment with the Com-
pany. She stated that, for example, Cletus Traylor's and
Vic Gardner's wages were adjusted upward in 1988
when it was discovered they were not being paid proper-
ly. She said employee Judy Lawrence's wages were ad-
justed downward in that she was being overpaid.
Personnel Assistant Cooley impressed me as a self-as-
sured, calm, relaxed, articulate, and truthful witness.
Thus, based on her credited testimony, I am persuaded
the Company reviewed its records with respect to Banks
and other employees' wages only after it was brought to
the Company's attention that certain employees were
being mispaid. I am also persuaded it was Personnel As-
sistant Cooley who informed Banks of his wage reduc-
tion and the Company's reasons for doing so. In this
regard, I note Banks admitted he had been told at the
time he filled the positions in question that he would be
paid an additional 25 cents per hour for working as a
section leader and for serving as an acting supervisor.
Banks also acknowledged he had worked in both posi-
tions but was no longer doing so at the time of his reduc-
tion in wages. Although Banks was very openly active
for the Union and had statements made to him by Com-
pany management that violated Section 8(a)(1) of the
Act, and although his wage reduction came after the
Company became aware of his union activities, I am
nonetheless persuaded his wages would have been re-
duced even in the absence of any union activity on his
part. The review of the wages came about as a result of
an employee complaint. An employee known to the
13 Cooley stated she knew Robinson opposed the Union when she re-
duced her wages.
COLUMBIAN ROPE CO. 1209
Company not to be supporting the Union had her wages
reduced as a result of the same wage review that result-
ed in Banks' wage reduction. Making wage adjustments
after errors had been discovered was nothing new at the
Company. Other employees' wages had been adjusted
both upward and downward prior to the Banks!-
Robinson adjustments. In light of all the evidence, I am
persuaded the Company would have adjusted Banks'
wages even in the absence of any protected conduct on
his part. Accordingly, I shall dismiss paragraph 13 of the
complaint.
8. The September 1 written warning given
D. Jernigan
It is alleged at paragraph 14 of the complaint that the
Employer, on or about September 1, issued a written
warning to its employee D. Jernigan.
That D. Jernigan was given a written warning on or
about September 1, related to timely attendance is not
disputed. Nor is there any dispute that the Company was
aware she supported the Union at the time she was given
the warning.
D. Jernigan's union activities, which included signing
the Union's in-plant organizing committee members'
letter given to the Company on August 29, are detailed
elsewhere in this Decision.
Personnel Assistant Cooley testified she made the deci-
sion to give the September 1 warning to D. Jernigan.
She said she did so because D. Jernigan reported late
(6:02 a.m. instead of 6 a.m.) for work on that date. Ac-
cording to Cooley, it was D. Jemigan's third incident of
being tardy within 6 months and as a result she was
given a written verbal warning. Cooley testified she
knew D. Jernigan had been instructed to report at 6 a.m.
on the date in question because there had been some
problems keeping track of employees being tardy in Jer-
nigan's department because the reporting times for that
department had not always been constant. Cooley said
she had discussed the matter with D. Jernigan's supervi-
sor, Mears, prior to September 1 and D. Jernigan was to
have reported for work on that date at 6 a.m.
Six-year employee D. Jernigan testified she served as a
section leader in her department and that as such it was
her job to insure the machines in her area of responsibil-
ity were ready to operate at the beginning of her shift
and that she was required to attend daily production
meetings. D. Jernigan said the only thing she was told
with respect to reporting for work was that she had to
be at work in time for the 6:45 a.m. daily production
meetings. She stated she was usually at work by 6 a.m.
but sometimes reported as early as 5 a.m. and as late as
6:30 a.m. depending on what work needed to be done on
any given, day. D. Jernigan testified her supervisor,
Mears, asked her one afternoon prior to the September 1
warning what time she and the others in her area report-
ed for work. D. Jernigan told Mears she came in at 6
a.m. and the others usually came in at 7 a.m. D. Jernigan
testified Mears told her they all would have to start re-
porting for work at the same time either at 6 or 7 a.m.
D. Jernigan said she told Mears if they came in at 6 a.m.
that would mean the employees would be on overtime
and she did not know if there would always be work for
the employees to perform on overtime. According to D.
Jernigan, Hears then told her to come in at 7 a.m. D.
Jernigan said she asked Mears if she still would be re-
quired to attend the 6:45 a.m. production meetings.
When Mears told her she would, she asked if he wanted
the employees there at 6 or 7. She testified Mears told
her he did not know but would let her know after he
had an opportunity to speak with Plant Manager West-
moreland." D. Jernigan testified that the very next day
after the Mears' conversation she reported for work at
6:30 a.m. She stated that around 8 a.m. that same morn-
ing, Supervisor Mears brought her a "pink slip" to sign.
She asked Mears what for, and he told her it was for
"clocking in late" that morning. D. Jernigan told Mears
she was at work by 6:30. D. Jernigan testified Mears told
her she was supposed to have reported for work that
morning at 6 a.m. D. Jernigan said she complained to
Nears that he was supposed to have, but had not, gotten
back with her the day before to tell her what time he
and Plant Manager Westmoreland wanted her to report
for work. Jernigan refused to sign the warning and again
asked what time the Company wanted her to report for
work. She said Mears told her she was supposed to
report for work at 6 a.m. daily.
D. Jernigan specifically testified that on the morning
she received the warning, she reported for work at 6:30
a.m. not 6:02 a.m. At trial, Jernigan reviewed her time
cards for a 3-week period and picked a Thursday as the
date she contends she was disciplined for reporting late.
Her time card for the Thursday that she said was the
date in question reflects she reported for work at 6:28
a.m.
Plant Manager Westmoreland testified D. Jernigan was
to have been at work at 6 a.m. on September 1. He ex-
plained the Company had been having problems in some
departments with respect to reporting times and as a
result of such problems, he met with his supervisors and
assigned reporting times for the employees in the prob-
lem areas. He said D. Jernigan was assigned a specific re-
porting time and that Supervisor Nears so informed her.
The record evidence persuades me that D. Jernigan re-
ceived the written verbal warning in question on Sep-
tember 1 for reporting at 6:02 a.m. instead of her re-
quired 6 a.m. reporting time. First, the timecards for Jer-
nigan for the 3-week period beginning with August 15,
and ending with September 2 reflects that on September
1 she reported for work at 6:02 a.m. The time card date
that Jernigan contends is the one for which she was dis-
ciplined would place the date of the discipline as Thurs-
day, August 24. Jernigan, however, was certain she was
disciplined after she had signed the August 27 letter indi-
cating she was a member of the Union's in-plant organiz-
ing committee. Thus, it appears she was disciplined for
reporting at 6:02 on September 1. I am also persuaded
she knew she was supposed to report for work at 6 a.m.
on that date. Both Personnel Assistant Cooley and Plant
14 D. Jernigan could not recall exactly when the above conversation
took place She guessed it was 2 or 3 weeks before the layoff. However,
she stated it was definitely after she signed the August 27 letter to the
Company identifying herself as a member of the Union's in-plant orgamz-
ing committee.
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Manager Westmoreland indicated Supervisor Mears had
so informed her. If D. Jernigan had not been required to
report at 6 a.m. on September 1, I am persuaded she
would not have reported at just 2 minutes past that hour.
In light of the above findings, did the Company vio-
late the Act in disciplining D. Jernigan for being tardy
on September 1? I am persuaded counsel for the General
Counsel has presented evidence "sufficient to support an
inference that protected conduct was 'a motivating
facto?" in the Company's decision to discipline D. Jerni-
gan. First, there is no dispute that she supported the
Union and that Personnel Assistant Cooley and Plant
Manager Westmoreland knew of her support for the
Union at the time she was disciplined. Second, D. Jerni-
gan's discipline came just 5 days after she and others had
signed the Union's in-plant organizing committee's mem-
bers letter and 3 days after that letter was presented to
Plant Manager Westmoreland. Westmoreland's state-
ments to and questions asked of D. Jernigan—found vio-
lative of Section 8(a)(1) of the Act—about union meet-
ings, how many employees had been attending such
meetings, and what it would take to stop the Union at
the Company establishes the Company's union animus.
Based on the foregoing, counsel for the General Counsel
has established a prima facie case. I am, however, per-
suaded the Company met its burden of demonstrating it
would have taken the action it did even in the absence of
any protected conduct on D. Jernigan's part. First, Jerni-
gan was given a specific time to report for work on the
occasion for which she was disciplined. She failed to
report by the specified time. Secondly, according to Per-
sonnel Assistant Cooley, this was Jernigan's third such
offense in 6 months. Under the Company's attendance
control policy, D. Jernigan received the discipline called
for. I simply find unbelievable D. Jernigan's testimony
that she was unaware of the Company's attendance con-
trol policy. The credited evidence establishes a copy of
the Company's attendance control policy had been given
to all employees and a copy had been posted on the
Company's bulletin board. Support even of an active and
open nature by an employee for a union does not shield
the employee from otherwise valid discipline for violat-
ing an employer's rules or policies. In light of all the
above, I conclude the Company would have disciplined
Jernigan for violating its attendance control policy even
in the absence of any protected conduct on her part. Ac-
cordingly, I shall dismiss paragraph 14 of the complaint.
9. The written warning given employee Sara Barnes
It is alleged at paragraph 15 of the complaint that the
Employer, on or about September 5, issued a written
warning to its employee S. Barnes.
S. Barnes testified she commenced working for the
Company in October 1986 and had been assigned to the
first shift in the conversion department for approximately
2 weeks at the time she was laid off in September. Prior
to working in the conversion department, she had
worked for approximately 1 month in the small rope de-
partment. Prior to that time she had worked in the con-
version department but on the third shift. In order to get
a day-time job, she said she had requested a transfer
from her third-shift job into the small rope department.
Barnes stated that after approximately 3 weeks to a
month in the small rope department, Personnel Assistant
Cooley told her that her (Barnes) immediate supervisor,
Mears, had said she was slow performing her small rope
job and that she was going to be transferred back to the
conversion department. S. Barnes asserts Supervisor
Mears had stood around and watched her work but had
never "disapproved" of anything she did. S. Barnes
stated she was not told at the time she was transferred
from small rope back to the conversion department that
she was being given any kind of warning or that she was
being written up as a result of being transferred.
Barnes testified she supported the Union by attending
"a few" union meetings, by wearing a union button at
work, and by signing the Union's August 27 in-plant or-
ganizing committee member's letter which was given to
Plant Manager Westmoreland on August 29.
Employee Daniel, who worked as a section leader in
small rope until his discharge on August 30, 15 testified S.
Barnes worked in his particular section in small rope for
approximately 1 month. Daniel stated "[S. Barnes] was a
little slow, she was. She didn't catch on as fast as, you
know, a person would on that type job." Daniel testified,
however, that after approximately 3 weeks on the job, he
thought she was doing as well as any average new
worker in that area. Daniel said he made no recommen-
dations to the Company regarding Barnes being trans-
ferred from small rope but added he had told Supervisor
Mears he did not know if S. Barnes would work out in
the small rope department.
Personnel Assistant Cooley credibly testified she spoke
with S. Barnes alone in her office a few days before S.
Barnes was transferred back to the conversion depart-
ment from the small rope department. Cooley stated S.
Barnes came to her office and expressed dissatisfaction
with working in small rope because the job was physical-
ly difficult. Cooley said S. Barnes wanted to return to
the conversion department. Cooley testified there were
two vacancies in conversion at the time and that S.
Barnes asked to be considered for one of them. Cooley
said she noted Barnes' interest and spoke with Plant
Manager Westmoreland on S. Barnes' behalf. Westmore-
land told Cooley to oblige S. Barnes and return her to
the conversion department because her supervisor,
Mears, and her leadperson, Daniel, had both expressed
dissatisfaction with her performance in small rope.
Thereafter, S. Barnes was transferred back to the con-
version department.
Cooley testified that when she rated employees for dis-
cipline with respect to the September layoff at the plant,
she considered S. Barnes'transfer from the small rope de-
partment to the conversion department to constitute a
disciplinary matter because it was based on S. Barnes'
poor performance in small rope. Cooley stated she so
rated S. Barnes because in the past another employee
had been transferred for poor performance and the trans-
fer had been considered discipline. However, she stated
that during the investigation of the instant case she dis-
covered the other employee had been transferred not
15 There is no contention that Daniel's discharge violated the Act.
COLUMBIAN ROPE CO. 1211
only for poor work performance but also for insubordi-
nation. Cooley acknowledged S. Barnes should not have
been rated as having been disciplined with respect to her
transfer from the small rope department to the conver-
sion department. Cooley testified it was clear from the
Company's records S. Barnes had not been given any
discipline with respect to the transfer and that none in
fact existed.
The only action taken with respect to S. Barnes' trans-
fer from the small rope department to the conversion de-
partment was that she was credited with a disciplinary
action when Cooley rated employees for layoff. I reject
counsel for the General Counsel's contention that Per-
sonnel Assistant Cooley charged S. Barnes with a disci-
plinary warning on September 5 in order to facilitate her
layoff on September 16. The facts, when viewed in con-
text, simply do not support such a contention. There is
no question that Cooley knew of S. Barnes' union senti-
ments at the time she gave her the rating in question.
However, it is just as clear that Cooley's actions with re-
spect to S. Barnes were based on a good-faith, but mis-
taken belief, that she was following past Company prac-
tice with respect to transfers based on poor performance.
When the error she had made was brought to her atten-
tion, Cooley immediately checked the situation out and
readily acknowledged her mistake. Simply stated, I find
counsel for the General Counsel has failed to establish
that Cooley's actions were unlawfully motivated. Ac-
cordingly, I shall dismiss paragraph 15 of the complaint.
10. The layoff of 19 employees on September 16
It is alleged at paragraph 16 of the complaint that the
Employer, on September 16, laid off the following em-
ployees: Anderson, Banks, L. Barnes, S. Barnes, Freddy
Beene (Beene), Bishop, Collins, Vic Gardener (Garden-
er), Grice, D. Jernigan, L. Jernigan, Jones, Carl Scales
(Scales), Larry Stone (Stone), Cletus Traylor (Traylor),
Charles Walton (Walton), Michael Mask (Mask), Janie
Bennett (Bennett), and Jerry Woodruff (Woodruff). It is
also alleged that on or about March 28, 1989, the Em-
ployer terminated all of the above-named employees
except Woodruff.
The only overall issue being looked at with respect to
the September 16 layoff is counsel for the General Coun-
sel's contention that the above-named individuals were
discriminatorily selected for layoff and, except for
Woodruff, terminated on March 28, 1989. The govern-
ment does not take issue with the Company's decision to
have a layoff on September 16. 16 It is undisputed that
the Company laid off all its employees on that date.
Company President Ludt, called as an adverse witness
by counsel for the General Counsel, testified without
contradiction that he alone made the decision to have
the September 16 layoff. He said he arrived at his layoff
decision on or about September 12 but that he began ear-
lier that month to devise a system for laying off employ-
' 6 I note in reading the October 7 Decision and Direction of Election
in Case 26-RC-7090 that the same Regional Director who issued the
complaint herein concluded the Company's decision to have the Septem-
ber 16 layoff was economically motivated and was a lawful business deci-
sion.
ees. Ludt stated he brought the employees in on the
layoff situation at the Company by enclosing a letter
with their paychecks on September 14. In the letter,
Ludt pointed out the Company had lost $20,632 the pre-
vious month (August) and that such losses had caused
the Company's cash level to drop to the point where it
could not continue its then current level of activity. Ludt
noted in his letter the Company planned to shut down
most of its operations the next week in order to conserve
cash. In his letter, Ludt stated that with the losses the
Company was incurring, it could no longer afford to
"buy materials," "keep inventories," and "repair ma-
chines." Ludt related in his letter that "we were studying
the business with the aim of restructuring it at a smaller,
more profitable level." Ludt stated the restructuring re-
sulted in the Company moving away from commodity
rope and toward the production of specialty rope.' 7
Ludt devised a system to select employees for layoff
(and subsequent recall) which contained specific criteria
that he said was based on the factors for layoff and recall
outlined in the employees' handbook. He stated the crite-
ria listed in the handbook were roughly the same as had
been followed by the Company in selecting employees
for previous layoffs.
The Company's handbook addresses "Layoffs" and
"Recall from Layoff" in pertinent part as follows:
LAYOFFS
Your job performance, skills, attendance record and
work experience will be used to determine the se-
quence of layoff.
RECALL FROM LAYOFF
When restoring operations after a layoff, you will
be recalled on the basis of your job performance,
skills, attendance record and work experience.
The four factors Ludt utilized in selecting employees for
layoff and recall were attendance, discipline, job experi-
ence, and shift flexibility. Employees were rated with
scores from 1 to 4 in each of the four categories listed
above. An average score for each employee was arrived
at by combining the scores from each of the four catego-
ries and dividing the same by 4 with departmental rat-
ings being made from the highest to the lowest with the
lowest scoring employees being the ones selected for
layoff and consequently the last ones to be recalled, if at
all, from layoff. The employees were rated based on data
gathered for Ludt by Plant Manager Westmoreland and
Personnel Assistant Cooley.
Regarding to the criteria utilized in rating the employ-
ees in the attendance category, President Ludt directed
Personnel Assistant Cooley to come up with a system
that would comply with his overall 1 to 4 rating struc-
ture. Cooley developed such a system basing it on the
Company's general attendance policy which had been
i7 rope is a more general type rope such as might be
found in a hardware store whereas specialty or job-order rope is manu-
factured for a specific customer for a specific purpose such as rope used
by firemen or window cleaners to repel buildings.
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
updated in writing and provided to the employees on
June 1. 12 To obtain the raw data used in rating the em-
ployees for attendance, Cooley reviewed attendance
cards for all the employees for a 6-month period prior to
the layoff." Cooley also reviewed, when necessary,
some, but not all, personnel files in order to obtain the
necessary raw data for this category.2°
Ludt likewise assigned Cooley the responsibility of es-
tablishing a rating system with respect to the discipline
category. Ludt left to Cooley's discretion "what type of
[disciplinary] experience would rate a 1,. . . 2,. . . 3,
. . . or 4." Cooley developed such a rating system.21
She reviewed the personnel files of the employees to as-
certain what, if any, disciplinary actions had been taken
against employees from 1986 until the time of the
layoff. 22
Ludt said he devised the complete rating system with
respect to the job experience category." Ludt directed
Plant Manager Westmoreland to make written evalua-
tions of the jobs employees had performed during the 2
years prior to the September layoff. Westmoreland made
his evaluations of the employees' job proficiency mostly
from recall. He said he only consulted with departmental
supervisors if he had any question about a particular em-
ployee's skills and qualifications. In this regard, West-
moreland said he was present each day at the plant for
some portion of all three shifts and as such he knew each
of the employees and the skills they possessed. West-
18 I find it unnecessary to set forth the various criteria contained in the
June 1 attendance control policy of the Company. The policy was re-
ceived in evidence as G.C. Exh. 7. Cooley's attendance rating system
provided that if an employee had a score of 9 to 10 for attendance, the
employee was given 4 points. A score of 6 to 8 called for 3 points. A
score of 4 to 5 called for 2 points, and a score of I to 3 called for a rating
of 1. Some examples of how the scores were arrived at shows that for a
score of 10, an employee had to have had perfect attendance whereas an
employee who had received a suspension for attendance problems result-
ed in a score of I.
" The Company's attendance control policy which was utilized by
Cooley sets forth a 6-month evaluation period with respect to attendance.
Cooley explamed that if an employee had received a disciplinary action
as a result of his or her attendance problems, such might only be reflect-
ed in the employee's personnel file. She further explained that she did not
have to review all the files as she was the individual responsible for ad-
ministering discipline with respect to attendance and as such she recalled
some actions that had been taken without having to actually review any
personnel files. In other cases, she said she could recall that some discipli-
nary action had been taken and needed only to verify what the action
was. In those situations, she said she reviewed the employee's personnel
file
20 Cooley explained that if an employee had received a disciplinary
action as a result of his or her attendance problems, such might only be
reflected in the employee's personnel file. She further explained that she
did not have to review all the files as she was the individual responsible
for administering discipline with respect to attendance and as such she
recalled some actions that had been taken without having to actually
review any personnel files. In other cases, she said she could recall that
some disciplinary action had been taken and needed only to venfy what
the action was. In those situations, she said she reviewed the employee's
personnel file.
21 The disciplinary rating system awarded 4 points to an employee
with no disciplinary warnings, 3 points if an employee had been given a
verbal warning/counseling, 2 points if an employee had one to two writ-
ten warnings, and 1 point if an employee had three or more wntten
warnings or a suspension for disciplinary reasons.
22 Ludt instructed Cooley to review the personnel files covering that
that period.
23 The job experience ratings were based on 1 point for each job an
employee was skilled in up to a maximum of 4 points for 4 different jobs.
moreland said he did not review any personnel files in
making his evaluations. Westmoreland said he made his
evaluations based on his determination that an employee
was "immediately proficient" on a particular job. He ex-
plained that "immediately proficient" meant he could go
into the plant, select an employee to perform a particular
job, and the employee could do so immediately in a pro-
ficient manner.24
Ludt said he alone devised the complete rating system
related to the shift flexibility category. In doing so, Ludt
had Personnel Assistant Cooley prepare a list reflecting
the shifts employees' had worked during the year pre-
ceding the layoff." Ludt said he chose a 1-year period
because the Company had not operated three shifts prior
to that time. After Cooley prepared the above referred
to list, she gave it to Plant Manager Westmoreland.
Westmoreland reviewed the list and noted whether the
employees had worked on alternate shifts at the request
of the Company or for their own convenience. West-
moreland said he based his contributions to the list on his
personal recall. If work on an alternate shift had been at
the Company's request, the employee was given a shift
flexibility rating credit. However, if the alternate shift
work had been at the employees' request, no shift flexi-
bility credit was given." Westmoreland credibly testi-
fied he did not consider overtime that employees had
worked when he made his evaluations with respect to
shift flexibility. Westmoreland said he considered over-
time to be work attached to whatever shift an employee
had originally worked.
Ludt selected which departments would be impacted
and to what extent by the September 16 layoff. Ludt ex-
plained he did not layoff the one person in the janitorial
department because the cleaning work performed by that
one person still needed to be performed. The one em-
ployee in the shipping department was not laid off be-
cause the Company still had to ship its products to its
customers. Ludt stated no employee was laid off in the
maintenance department because "the machines still
needed maintenance work on them" that "Whey just ran
shorter periods of time." Ludt testified no cutbacks were
made in the fabrication department because the Compa-
ny had to maintain regularly scheduled shipments of spe-
cialty rope to the Morton-Thiokol Company. No com-
modity type rope is produced in the fabrication depart-
ment. According to Ludt, no cuts were made in the ex-
trusion department because that was, and is, where plas-
24 The Company has had a flexibility bonus system in effect since ap-
proximately 1984. Under the flexibility bonus system, employees are paid
an additional 25 cents per hour if they qualify on five different jobs. This
flexibility bonus was not considered in evaluating employees on job expe-
rience with respect to the September layoff. According to President
Ludt, all employees wound up getting the flexibility bonus that it was "a
great idea" when it was established but that the awarding of the bonus
was not monitored and hence it had in essence become just another step
in the pay structure for employees at the Company
25 Cooley credibly testified she utilized the timecard edit sheets which
reflected the shifts the employees had worked during the period in ques-
tion to prepare the list Ludt requested.
26 The shift flexibility rating was as follows: If an employee had
worked first shift only, 1 point, if an employee had worked second or
third shift, 2 points; if an employee had worked on two different shifts, 3
points; if an employee had worked all three shifts, 4 points.
COLUMBIAN ROPE CO. 1213
tic pellets are extruded into the filaments necessary to
create any rope that is produced by the Company. Ludt
explained that the extrusion department had to be operat-
ed "around the clock" or the Company would face a loss
of product if there was a shutdown in that department
for any significant time.
Ludt stated the Company was able to eliminate the
trucking department all together and have whatever
functions were left for that department performed on a
part-time basis by supervisors. Ludt explained that at the
time of the September layoff, the Company's production
of commodity rope was down as a result of its efforts to
move away from commodity and toward specialty rope
production. He said that commodity rope production
"required the most trucking around the plant" and be-
cause the Company was moving away from that type
production, he was able to eliminate the department.
Ludt testified that around the time in question, two
large commodity rope customers, F. W. Winne Compa-
ny and Northwest Fisheries, substantially dropped their
orders causing a significant impact in the conversion,
small, and large rope departments where commodity
type rope was primarily produced. Ludt explained that
the layoffs in the large rope department resulted directly
from the drop in sales to the F. W. Winne Company.
Seventeen of the 24 employees permanently laid off were
from the conversion and small rope departments. Ludt
testified the September layoff impacted the packing de-
partment simply because overall there was "less volume
going through the plant." -
On September 16, President Ludt notified the entire
work force in writing they were laid off effective that
date. His letter reads as follows:
As I explained in the Partner's letter, economic
conditions require that most of the plant's produc-
tion operations be shut down next week. We can no
longer sustain the losses incurred over the past sev-
eral months and therefore have no choice but to re-
structure the business. Unfortunately, this will re-
quire the permanent elimination of 20-30 jobs. The
Company is in the process of determining which
employees will be recalled. Next week we will
advise all employees if their jobs have been elimi-
nated or whether they will be recalled to work.
While it is regrettable, there is no increase in pro-
duction on the horizon. I believe this will be a per-
manent reduction in force and therefore urge any
employee who is notified that his job has been
eliminated to register with the Mississippi Employ-
ment Security Commission and seek other employ-
ment. The Company will cooperate with prospec-
tive employers in providing references.
Since we do not now know which positions will be
eliminated, the company requests that everyone turn in
any company property before leaving work this week.
President Ludt, Plant Manager Westmoreland, and
Personnel Assistant Cooley meet on September 17 and
reviewed the final scores that had been arrived at for the
employees pursuant to the criteria for selecting employ-
ees for layoff or recall. The Company recalled approxi-
mately 30 to 40 employees on September 19. 27 An addi-
tional two employees were recalled on or about October
two with an additional two being recalled on or about
October 10. One employee, Woodruff, was recalled
around mid-November. No other employees have been
recalled from layoff since mid-November and the Com-
pany had not, as of the trial herein, hired any new em-
ployees.
On September 23, President Ludt sent individual let-
ters to 24 employees" whom he considered did not have
"a chance of recall" at the Company. The 24 letters
which were identical except for the addressee read as
follows:
During the past week, Columbian has reviewed
its staffing requirements for the business as it has
been restructured and it was determined that your
job was surplus and has been eliminated. I believe
your layoff will be permanent and urge you to reg-
ister with the Mississippi Employment Security
Commission and seek other employment. Please
present the MESC with this notification as it should
facilitate your qualifying for unemployment bene-
fits. The Company will cooperate with prospective
employers in providing references.
You will be receiving a letter from Terry Treat,
our Benefits Coordinator, pertaining to insurance
coverage you may elect to continue through the
COBRA Act.
It is undisputed that the 24 employees who received the
letters were those employees who had the lowest ratings
for layoff and recall in the impacted departments except
for probationary employees."
On March 28, 1989, President Ludt notified those
same 24 permanently laid-off employees they were being
terminated since they had been on layoff in excess of 6
months. His letter was as follows:30
It is with regret that I have to inform you of
your official termination from Columbian Rope
Company. As stated in the employee handbook on
page eleven (11) LENGTH OF SERVICE, second
paragraph, Length of Service is continuous employ-
27 Westmoreland estimated the number at 30 while President Ludt esti-
mated 40.
28 Eighteen of the 24 employees receiving the letters are named in
paragraph 16 of the complaint. Employee Woodruff is the only individual
named in that paragraph of the complaint who did not receive such a
letter. It is not disputed that Woodruff returned to work at the Company
in mid-November. Of the 18 employees named in the complaint and who
also received the September 23 letter, 14 of them, namely, Scales,
Walton, Mask, Traylor, Collins, Anderson, Banks, L Barnes, Jones,
Bishop, D. Jernigan, L. Jernigan, S. Barnes, and Grice were listed on the
Union's in-plant organizing committee letter which was signed on August
27 and which was given to Plant Manager Westmoreland on August 29.
Woodruff also signed the August 27 letter.
29 Included in the 24 employees receiving the September 23 letters
were 6 probationary employees. Counsel for the General Counsel assert-
ed in her posttrial bnef that she did not contend the probationary em-
ployees were improperly or unlawfully laid off.
39 Similar letters, copies of which were received in evidence, were sent
to 12 employees following a layoff at the Company in 1984. The Compa-
ny also laid off employees in 1983 However, no letters, if such exists,
were offered in evidence with respect to that layoff.
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment which has not been broken. Your length of
service begins on your first day of reporting and
continues unless it is broken by any of the follow-
ing:
Item 4—you are on layoff for a continuous
period in excess of six months.
Your six-month period of layoff has expired and
due to the fact that our business has been restruc-
tured and we do not have a vacant position, I have
not been in a position to offer you reemployment
since your layoff. If I am able to do so in the future,
it would be under the condition that you would be
starting as a new employee with a new seniority
date.
If you desire to be considered for employment in
the future, please register with Mississippi Employ-
ment Security Commission as this is our exclusive
source of applicants.
Counsel for the General Counsel alleges the employees
named in paragraph 16 of the complaint were discrimina-
torily selected for layoff, thereafter discriminatorily
denied recall, and subsequently unlawfully terminated.
She asserts this is the case .even if it is assumed the Com-
pany had valid economic reasons for its September
layoff. Because issues of this nature turn on employer
motivation, the teachings of Wright Line, 251 NLRB
1083 (1980) enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983) are ap-
plicable here. Briefly, the Board in Wright Line set forth
its test of causation for cases alleging violations of Sec-
tion 8(a)(3) of the Act. First, counsel for the General
Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a moti-
vating factor in an employer's decision. Once this is es-
tablished, the burden shifts to the employer to demon-
strate that the same action would have taken place even
in the absence of protected conduct.
Applying Wright Line, I find counsel for the General
Counsel has established a prima facie case. First, the
Company (Ludt, Westmoreland, and Cooley) was aware
of union activity at its facility from at least late July for-
ward. As of August 29, the Company was aware that 14
of the 24 employees it laid off on September 16, support-
ed the Union in as much as those 14 (Anderson, Banks,
L. Barnes, S. Barnes, Bishop, Collins, Grice, D. Jernigan,
L. Jernigan, Jones, Scales, Traylor, Walton, and Mask)
had signed the Union's in-plant organizing committee
letter that was presented to Plant Manager Westmore-
land on that date. Employee Woodruff (whose name was
added to paragraph 16 of the complaint by amendment
at the trial) also signed the letter. Employees Stone and
Beene wore union buttons and hats at work from late
August until the September layoff. It is undisputed that
management observed them doing so. Therefore, the
Company had knowledge of union activity by its em-
ployees, including those just indicated, at the time of the
layoff. The Company's animus toward the Union and its
supporters is demonstrated by certain violations of the
Act which its supervisors and agents committed includ-
ing interrogating its employees concerning their union
sentiments and the sentiments of others, soliciting em-
ployee grievances and impliedly promising to remedy
such grievances, and promising its employees unspecified
benefits if the employees would support the Company
and/or abandon their support for the Union. The timing
of the layoff is somewhat suspect in that it took place 14
days after the Union filed its representation petition with
the Board. The above factors taken together are, in my
opinion, sufficient to warrant an inference that the em-
ployees' union activities were a motivating factor in their
being laid off.
Notwithstanding the finding, which I make, that coun-
sel for the General Counsel established a prima facie
case, I nevertheless conclude and find the Company
would have selected those it did for its September 16
layoff and would thereafter have declined to recall the
ones it failed to recall and would subsequently have ter-
minated those it did even if any or all its employees had
not engaged in any union or protected activities. I reach
this conclusion for a number of reasons. First, I note
counsel for the General Counsel does not question the
Company's decision to have, or the necessity for, the
September 16 layoff. The evidence indicates the General
Counsel would have been hard pressed to have shown
otherwise. The Company demonstrated it encountered
economic difficulties prior to any established knowledge
on its part of union activity at its facility. It was the
Company's economic difficulties that, for example,
prompted President Ludt to notify the employees in
writing on July 14 that as a result of its poor financial
performance, he was going to suspend consideration of
all wage and salary increases until November 1. Ludt
noted in that same letter the Company had lost $36,887
on sales of $963.659 for the month of May. On Septem-
ber 14, President Ludt again notified the employees in
writing that the profitability picture at the Company was
getting worse in that it had lost $20,632 on sales of
$697.487 for the month of August. Ludt told the employ-
ees that as a result of its continued losses, the Company
could not keep supporting its level of operating activity
and a shutdown of most of its operation was planned for
the next week in order to conserve cash. Ludt also told
the employees he was studying the business with the aim
of restructuring it to a more profitable operation. Thus,
the evidence is uncontroverted that the Company's finan-
cial status was continuing to deteriorate at the time of
the September layoff. I even note it appears the Regional
Director, who issued the complaint herein, recognized
the Company's economic difficulties as early as October
7, when he issued his Decision and Direction of Election
in the underlying representation case in which he con-
cluded there was insufficient evidence to establish a lack
of legitimate business purpose for the Company's layoff
actions of September 16. 31 Counsel for the General
31 The Regional Director, after reviewing the economic conditions of
the Company, even excluded the employees (except for Woodruff)
named in paragraph 16 of the complaint from the unit because they had
no reasonable expectancy of recall at the Company.
COLUMBIAN ROPE CO. 1215
Counsel's contention the Company utilized the layoff "to
teach its employees a lesson not to seek union representa-
tion" ignores the economic realities the Company faced
at the time.
Establishing economic justification for a layoff does
not resolve the issue of whether those selected for layoff
were selected for discriminatory reasons. I have consid-
ered various factors in arriving at my conclusion that the
24 employees selected for permanent layoff were not se-
lected, as contended by counsel for the General Counsel,
for discriminatory reasons. However, before addressing
those factors, it is enlightening to note that not only does
counsel for the General Counsel not take issue with the
Company's economic justification for its September 16
layoff, she does not question the Company's decision
with respect to the number of employees chosen for
layoff. That is, she does not contend the Company did
not need to lay off 24 employees as opposed to some
lesser number on September 16. She also does not con-
tend it was unlawful for the Company to lay off the 6
probationary employees who were included in the 24
permanently laid off. Thus, it is only the 18 employees
named at paragraph 16 of the complaint (plus employee
Woodruff) who she contends were unlawfully and discri-
minatorily selected for layoff.
Counsel for the General Counsel's contention that
President Ludt chose to lay off employees only in those
departments where there was a concentration of union
supporters thus making his selections discriminatory does
not withstand scrutiny. While it is true Ludt made the
decision as to which departments would be impacted,
such does not establish a discriminatory motive on his
part for selecting the departments he did for layoff.
Ludt's explanations for choosing the departments he did
for layoff were logical and appear to have been based on
valid business considerations. I accept his explanations.
Ludt explained no one was laid off in the janitorial de-
partment because that department only had one employ-
ee and the plant still needed to be cleaned even with the
smaller work force that would be present after the
layoff. I accept Ludt's explanation for not laying anyone
off in the maintenance department. His decision with re-
spect to that department likewise appears to have been
based on valid business considerations. He explained it
was hard to find skilled maintenance employees and it
was essential to retain those employees even though a
layoff was necessary because the same pieces of equip-
ment had to be maintained even though the machines
would be operated for shorter periods of time after the
layoff. Ludt explained that the one employee in the ship-
ping department was retained because the Company had
to ship whatever finished products it produced as long as
it remained in business. Ludt explained the lack of lay-
offs in the fabrication department in that the Company
had to continue to deliver specialty rope to a particular
customer (Morton-Thiokol) which rope was produced in
that department. Ludt decided not to lay anyone off in
the extrusion department because that is the department
that the plastic pellets are extruded into the filaments
necessary to create any rope the Company might
produce. Ludt explained the extrusion department had to
be operated around the clock or face product loss if it
was shut down for any significant time. Thus, I am per-
suaded Ludt had valid business considerations for not
laying off employees in that department.
Ludt explained that the layoff impacted the small rope,
large rope, and conversion departments because that was
where the Company produced its commodity rope. Ludt
credibly testified that at the time of the layoff in Septem-
ber, the Company's production of commodity rope was
down. He explained this was in part as a result of his at-
tempting to focus the Company's efforts away from that
type rope, which requires more in operating capital and
toward specialty rope which did not require as much
working capital. Ludt said that at about that same time
two large commodity . rope customers, namely—F. W.
Winne Company and Northwest Fisheries—substantially
reduced their orders resulting in even less need for the
production of commodity rope.
I accept Ludt's explanation that the packing depart-
ment was impacted simply because there was less volume
of rope of any kind going through the plant. Ludt said
he was able to eliminate the trucking department alto-
gether by having supervisors perform the reduced func-
tions of that department.
Accordingly, and contrary to contentions by counsel
for the General Counsel, I am persuaded the evidence
fails to establish that Ludt chose to lay off employees
only in those departments where he knew or suspected
that the Union had its greatest employee support. I am
convinced economic realities dictated his choice of de-
partments for layoff notwithstanding the fact the Union
may have enjoyed greater support in some, if not all, of
the departments impacted by the layoff.
Counsel for the General Counsel's contention that
President Ludt chose the factors he did to rate the em-
ployees for layoff because his objective was to bring
about the greatest disparate impact upon union support-
ers is not borne out by the evidence. A careful review of
the record persuades me Ludt chose the factors he did
for layoff—attendance, discipline, job experience, and
shift flexibility—because those were the ones set forth in
the employee handbook. The employee handbook re-
flects layoffs would be based on the employees' "job per-
formance, skills, attendance record, and work experi-
ence." While the factors utilized by Ludt may not have
been precisely—word-for-word—the same as those con-
tained in the employee handbook, it is nonetheless clear
his factors were closely related to and unmistakenly de-
rived from the language set forth in the layoff section of
the handbook. Counsel for the General Counsel's conten-
tion that Ludt did not follow the employee handbook be-
cause there is no reference made therein to the number
of shifts that employees worked or had been assigned to
is without merit. The shifts worked by an employee is
clearly encompassed in an employee's "work experi-
ence." I note the factors Ludt utilized were job related
and counsel for the General Counsel does not contend to
the contrary.
Although I have concluded the Company was not dis-
criminatorily motivated in promulgating its rating system
for laying employees off, such does not resolve the
matter. Counsel for the General Counsel contends the
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Company's rating system had a disparate impact on
union supporters not only by design but by its applica-
tion. Thus, it is necessary to determine whether the fac-
tors utilized were disparately applied against any of the
employees involved in the September 16 layoff.
As the evidence reflects, Personnel Assistant Cooley
based the ratings format for the attendance factor on the
Company's general attendance control policy. She re-
viewed attendance cards for all employees for a 6-month
period immediately preceding the date of the layoff, inas-
much as that was the evaluation period called for in the
Company's attendance control policy. I note the Compa-
ny's most recent attendance control policy—which
Cooley utilized—had only been in effect since June 1.
Therefore, Cooley's 6-month review of attendance
records included approximately a 2-month period when
employees would not have known precisely what the
Company's attendance policy entailed. However, con-
trary to what seems to be counsel for the General Coun-
sel's position, I do not view that as adversely impacting
only on union supporters. Simply stated, the review cov-
ered all employees for that period of time and there is no
showing on this record that it somehow impacted greater
on union supporters than nonunion supporters. The fact
Cooley went further than just checking attendance cards
in some instances such as with employees Grice and
Bishop does not support a conclusion that she did so in
order to single out union supporters for lower attendance
scores. Cooley credibly explained she checked some per-
sonnel files and not others because she was the one at the
Company who administered discipline for attendance and
that if an attendance card did not, for whatever reason,
reflect attendance discipline she knew to have been ad-
ministered she reviewed that employee's personnel file.
The ratings formula for the discipline factor was de-
veloped by Personnel Assistant Cooley at the direction
of President Ludt. Cooley decided what types of disci-
pline would warrant ratings of 1 to 4. Those ratings
appear to be of an objective nature and standing alone
do not suggest a preconceived plan to impact greater on
union than nonunion supporters. Cooley applied the rat-
ings system by reviewing the personnel files of all em-
ployees for any disciplinary action between January 1,
1986 and the time of the September layoff. While it is
true that a longer time frame for review subjected senior
employees to more scrutiny than newer employees, I
reject as unfounded and mere speculation counsel for the
General Counsel's post trial contention that "employees
who had. . . seniority. . . were more likely to support
a union organizational campaign. . . as compared to em-
ployees who were relatively new . . . ." It is just as rea-
sonable to speculate, but that is all it would be, that less
senior employees who were not well established at the
plant might favor the Union to a greater degree than the
more stable senior employees.
The job experience factor, which was devised by
President Ludt, covered a 2-year period. Plant Manager
Westmoreland evaluated each employee and made a de-
termination as to the job or jobs each employee was "im-
mediately proficient" in. Westmoreland explained that by
"immediately proficient" he meant he could count on the
employee being able to go into the plant and perform an
assigned task proficiently when called upon to do so.
Westmoreland explained he did not consider the job
flexibility bonus awards given by the Company in
making his evaluations on job experience. The job flexi-
bility bonuses were awarded to any employee who quali-
fied to perform five different jobs. The explanation,
which seems reasonable, was that the job flexibility
bonus had simply become a step in the Company's pay
or wage structure. Westmoreland explained he did not
consider the fact that an employee had been a section
leader in making his evaluations because occupying such
a position had nothing to do with what job or jobs an
employee could actually perform. Again, it appears
Westmoreland based his actions on justifiable business
considerations. Plant Manager Westmoreland credibly
testified he was present at the plant for a portion of all
shifts worked and as such had an opportunity to observe
all employees on a daily basis. Therefore, great deference
must be given to his assessments and evaluations of the
employees' job skills. Absent something more than is
shown on this record, I decline to conclude that simply
because he relied on his recollection (plus some input
from supervisors) in determining each employee's skills,
that he somehow targeted his evaluations against union
supporters and in favor of nonunion supporters. It took a
joint effort between Personnel Assistant Cooley and
Plant Manager Westmoreland to rate employees for the
shift flexibility factor. Personnel Assistant Cooley re-
viewed Company records (payroll and timecard edit
sheets) and determined what shifts employees had
worked during the year preceding the September layoff.
The 1-year time frame was utilized because the Company
had operated three shifts for approximately that time. I
find nothing to suggest the time frame utilized was
chosen for any unlawfully motivated reason. Plant Nan-
ager Westmoreland reviewed the list prepared by Cooley
in order to determine whether the employees had
worked the shifts shown on the list at the Company's re-
quest or at the employees' request as personal favors.
Counsel for the General Counsel suggests Westmore-
land's review of the records lacked any objectivity be-
cause he made his review based strictly on his memory.
Westmoreland, however, demonstrated the reliability of
his recall when he testified, for example, that employee
Jones had worked a different shift in order to be home to
take delivery of a mobile home. Jones, who was called as
a witness by counsel for the General Counsel, testified he
had in fact taken off from work to take delivery of his
mobile home during the summer of 1988. Further, West-
moreland rated employee Stone as having worked an ad-
ditional shift but at his own request. Stone, who worked
first shift, testified he asked Westmoreland on an occa-
sion to swap from the first to another shift and candidly
stated he had never been assigned by the Company to
work any shift other than first shift. In light of all of the
above, I am persuaded counsel for the General Counsel
has failed to demonstrate that Westmoreland gave any
employee a low rating in this factor for any unlawfully
motivated reason.
The record as a whole does not support the conclusion
counsel for the General Counsel would have me make
COLUMBIAN ROPE CO. 1217
that the factors utilized by the Company in making the
selections it did for the September layoff adversely im-
pacted more harshly on supporters as opposed to non-
supporters of the Union. As outlined above, it appears
the Company's actions were justified by business necessi-
ty based on a realistic evaluation of the Company's needs
particularly with respect to which departments and em-
ployees in those departments would be impacted by the
layoff. While it is true a number, 16, of open supporters
of the Union were permanently laid off, it is likewise
true a substantial number of its supporters were retained
by the Company. For example, 10 (including Woodruff)
of the 24 employees signing the Union's in-plant organiz-
ing committee letter were retained by the Company. In
addition thereto, various other employees (Shelia Cobb,
Melvin McGaha, Gloria Grice, Franlde Brossious,
Melvis Harris, Marty Warren, and Ruthie Chatman) who
were not signatory to the Union's in-plant organizing
committee letter but who nonetheless supported the
Union or were believed by management to have support-
ed the Union were retained by the Company. Further-
more, there is no showing that employees Janie Bennett
or Vic Gardner supported or were suspected of having
supported the Union yet they were permanently laid off.
After carefully weighing all of the above, I conclude
counsel for the General Counsel has failed to establish
that the rating system for layoff utilized by the Company
adversely impacted union as opposed to nonunion sup-
porters.
Next, I shall examine counsel for the General Coun-
sel's contention that the Company discriminatorily and
disparately applied its rating system against individual
employees who support the Union.
Six of the 24 employees permanently laid off were
probationary employees. Counsel for the General Coun-
sel does not raise any issue with respect to the ratings
those employees were given or that they were chosen
for layoff. Of the remaining 18 employees, there is no
dispute that 14 of them signed the Union's in-plant orga-
nizing committee letter and that 2 of the remaining 4
openly expressed their support for the Union before the
layoff. The remaining two had not, at any time, openly
expressed support for or against the Union. It is undis-
puted that the employees chosen for permanent layoff
had the lowest layoff rating scores in the departments
that were impacted by the layoff.
As is noted elsewhere in this Decision, I have conclud-
ed the Company had valid business reasons for selecting
the trucking department as one of the departments to be
impacted by the September layoff. I find it unnecessary
to review the individual ratings given employees in that
department inasmuch as everyone in that department was
permanently laid off. Accordingly, I conclude counsel
for the General Counsel has failed to establish that the
rating system was adversely applied against union sup-
porters in that department. The trucking department in-
cluded four of the employees named in paragraph 16 of
the complaint, namely, Banks, Jones, Walton, and Gard-
ner. One of the four—Gardner—was not known to have
supported the Union.
Two of the five packing department employees were
permanently laid off. Garnet West, one of those laid off,
was a probationary employee. The other employee,
Beene, although having a rating of 4 each for attendance
and discipline had an overall rating of 2.5. His rating was
the lowest of any nonprobationary employee in the de-
partment. Beene was given a rating of 1 for job experi-
ence. He testified his job was to pack rope but that he
had operated a forklift three or four times per day when
rope needed to be moved. Beene said he also stabilized
rope as it was being placed on reels simply by holding
the rope in place. Beene acknowledged he had never
learned to perform the packing department function of
splicing rope. Beene testified he had, however, trained
fellow employees West and Robert Whitney to work in
the department. Counsel for the General Counsel urges
that Beene, who supported the Union, should have been
given a higher rating than a 1 on job experience. West-
moreland concluded Beene could only function as a
packer and rated him accordingly. Nothing Beene testi-
fied to persuades me to the contrary. All of the job func-
tions Beene performed appear to have been associated
with the packing of rope. Beene received a rating of 1 on
shift flexibility, however, he acknowledged he had never
worked on any shift other than first shift. Beene said he
had worked some overtime, however, Westmoreland tes-
tified overtime only was considered as work attached to
whatever shift the employee regularly worked and was
not considered as work performed on another shift for
flexibility purposes. Accordingly, I find counsel for the
General Counsel has failed to establish that the layoff
ratings were discriminatorily applied against Beene.
Employee Woodruff worked in the packing depart-
ment, however, he was subsequently recalled to work.
Woodruff was given the highest rating 4 for discipline
and job experience, however, he received a 1 each in at-
tendance and shift flexibility. Personnel Assistant Cooley
testified Woodruff was given a verbal warning for at-
tendance on September 14. She said that resulted in his
being given a rating of 1 in that category. Woodruff's at-
tendance records, however, indicate he had an unex-
cused tardy on that date but the records do not reflect
he was given a verbal warning. Even if Woodruff's
rating is incorrect and even if he should have been given
a 2 in attendance, his overall rating (11 divided by 4)
would still have remained less than the next highest em-
ployee on the list (Whitney, 12 divided by 4). I note that
Woodruff's original score was higher than it should have
been apparently as a result of a mathematical error by
Cooley. On shift flexibility, Woodruff was given a 1 for
having worked first shift only. However, the parties stip-
ulated that for the week ending August 30, Woodruff
worked "first shift hours 37.0; second shift hours, 8.0;
first shift hours, 2.0; overtime 7 hours on the first shift."
Thus, it appears Woodruff worked at least 8 hours on
the second shift during the rated period. However, such
does not establish that the hours were worked at the re-
quest of the Company rather than at the convenience of
Woodruff.
I conclude counsel for the General Counsel has failed
to establish that the ratings were discriminatorily applied
against any employee in the packing department.
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Two employees in the large rope department were laid
off, one of which was probationary employee Matthew
Luster. The only nonprobationary employee laid off was
Carl Scales. In reviewing the specific ratings given
Scales, I am not unmindful he was the first employee to
sign the Union's in-plant organizing committee letter.
Scales was given a 1 each in attendance, discipline, and
shift flexibility. He received a rating of 3 for job experi-
ence. With regard to job experience, he testified he pri-
marily worked on the "2-U" type machine. He stated he
had, however, from time to time, worked on the "1-U"
machine as well as the 1 and 2 Watson machines and the
P-36 and P-78 machines. Plant Manager Westmoreland
rated Scales qualified on the "2-U," "1-U," and the
"Watson" machines and thus awarded him an overall
rating of 3 for job experience. I am not convinced that
Scales experience, limited as it was, on the P-36 and P-78
machines warrants even an inference that Westmoreland
misrated him on his job experience qualifications. Scales
testified he had been assigned to the first shift for the 3
years prior to the September layoff. He said he had been
asked to work on shifts other than the first shift by Plant
Manager Westmoreland and Supervisor Toby Mears.
Scales recalled two occasions within the past 2 years
where Westmoreland asked him to work "midnights" for
"a couple of days or maybe just for a day." Scales said
there were several occasions during the past year when
Westmoreland asked him to work another shift on Fri-
days after he had already worked his regular shift. Be-
cause the rating period for shift flexibility only covered 1
year, it is not clear that the "midnights" Scales said he
worked occurred within the rating period. Furthermore,
the working over on Fridays appears to have been in the
nature of overtime which Westmoreland did not consider
in rating employees for shift flexibility. The parties stipu-
lated that Scales worked 8 hours on the third shift
during the week ending June 8, however, there is no in-
dication as to whether it was worked at the request of
the employee or at the direction of the Company. I con-
clude counsel for the General Counsel has failed to es-
tablish any unlawful discriminatory application of the
shift flexibility rating system against Scales. Personnel
Assistant Cooley testified Scales received the 1 rating in
attendance that he did because he had been given a writ-
ten attendance warning on June 17. Thus, it does not
appear that the attendance ratings were disparately ap-
plied against Scales. It is of no moment that Cooley had
to review Scales' personnel file in order to ascertain he
had been given the June 17 written warning. She was the
one who administered that type of discipline to employ-
ees on a regular basis and would have known about at-
tendance type disciplinary warnings whether such warn-
ings were reflected on the employees' attendance cards
or not. Personnel Assistant Cooley testified Scales re-
ceived a rating of 1 in discipline because he had been
given a written disciplinary warning on August 16. The
warning was both initialed and signed by Scales. Counsel
for the General Counsel seems to suggest something
amiss in the warning because it appears to summarize
various rules infractions from June 17 to August 16. The
signed disciplinary warning does not warrant such con-
cern. Furthermore, Cooley testified she also relied upon
six other written warnings given Scales on dates between
June 2, 1986 and August 1, 1987, in arriving at his rating
for discipline. I note Scales either signed or initialed four
of the six warnings. Thus, I conclude counsel for the
General Counsel has failed to establish that the discipli-
nary ratings were disparately applied against Scales in
the large rope department.
Seven of the 22 employees in the small rope depart-
ment were permanently laid off. One of the seven,
Tammy Leary, was a probationary employee. The re-
maining six employees laid off, namely Mask, Traylor, L.
Jernigan, Stone, Collins, and D. Jernigan had all openly
supported the Union.
Mask received a rating of 4 each for job experience
and shift flexibility. He received a rating of 1 each for
attendance and discipline. Cooley testified Mask was
given a 1 for attendance based on an August 6 counsel-
ing. Mask acknowledged having been given the counsel-
ing in question but explained the circumstances surround-
ing the counseling. He said the counseling involved the
number of hours he was to have worked on the Saturday
before August 6. Mask said he got into a "cussing"
match with his section leader over whether he was to
have worked 6 or 8 hours on that date. Mask contended
he did not know his section leader was speaking specifi-
cally to him when he stated they would be working 8
hours on that date. Mask only worked 6 hours and left
the plant. He was thereafter given the warning in ques-
tion for not working 8 hours. Mask testified Cooley
wrote him up about the incident after first telling him
she was not going to do so. Personnel Assistant Cooley
testified Mask left work early on the date in question
without notifying anyone or receiving permission to do
so from his supervisor. She said there was some question
about what Mask had been told by his section leader
with respect to how many hours he was expected to
work on that date. Therefore, she said she only gave
Mask a counseling instead of a written warning. In so
doing, she told Mask that in the future he should always
tell his supervisor before leaving work. Cooley credibly
denied ever telling Mask he would not be reprimanded
at all. Accordingly, I am persuaded counsel for the Gen-
eral Counsel has failed to established that the attendance
ratings were discriminatorily applied against Mask. Mask
received a rating of 1 in discipline based on the August 6
counseling just referred to and on an August 12 written
warning. Mask said he was counseled by his supervisor,
Mears, on that date for producing excessive scrap. How-
ever, he stated it was only a counseling and that he
signed it just so Mears could show Plant Manager West-
moreland that he (Mears) had spoken to Mask about the
matter. Mask testified the disciplinary sheet he signed did
not say "written warning" on it that it only said "Mike
[Mask] has been counseled." He testified there was a
blank space on the disciplinary form after the preprinted
words "Action Taken" and before the handwritten
words "Mike has been counseled." It is in the space that
Mask asserts was blank that the handwritten words
"written warning" appears. After reviewing the warning,
I am persuaded the words "written warning" were on it
at the time Mask signed it. The space would have been
COLUMBIAN ROPE CO. 1219
obvious had it been blank when Mask signed the warn-
ing. The August 12 warning that Mask signed reflects he
had been counseled on numerous occasions for failing to
meet specific performance standards. Accordingly, I con-
clude counsel for the General Counsel has failed to es-
tablish that the disciplinary ratings were disparately ap-
plied against Mask.
Employee Traylor received a rating of 4 for job expe-
rience, a rating of 3 for shift flexibility, a rating of 2 for
attendance and a rating of 1 for discipline. Counsel for
the General Counsel does not contest the disciplinary
warnings given Traylor on three occasions or his suspen-
sion for disciplinary reasons on November 24, 1987.
Likewise, counsel for the General Counsel does not take
issue with Traylor's rating of 2 for attendance based on
his having had an excused absence on March 9, an unex-
cused tardy on May 27, and an unexcused tardy on June
27. In his rating of 3 for shift flexibility, Traylor was
given credit by Plant Manager Westmoreland with
having worked on first and second shifts. Traylor testi-
fied he had worked on the third shift, but could not
recall if he had done so within a year of the September
layoff. The shift flexibility period only covered 1 year. I
find counsel for the General Counsel has failed to estab-
lish that the layoff ratings were disparately applied
against Traylor.
Employee L. Jernigan received a rating of 4 each for
job experience and shift flexibility. He received a rating
of 1 each for attendance and discipline. As is set forth
elsewhere in this Decision, there is no dispute that L.
Jernigan had an attendance problem. He may well have
been subject to suspension prior to September 13, when
he was in fact suspended for attendance related prob-
lems. Even prior to his September 13 suspension, L. Jer-
nigan had been given a written warning for attendance
problems. The question raised by counsel for the General
Counsel with respect to L. Jernigan's rating for attend-
ance is that Plant Manager Westmoreland had not sus-
pended him even though she contends he could have
prior to September 13, because L. Jernigan had not made
his prounion sentiments known to the Company at those
earlier times. 32 Thus she contends L. Jernigan might
have been able to have escaped his suspension on Sep-
tember 13, had he not made known his support for the
Union. I reject counsel for the General Counsel's conten-
tion. First, it was Personnel Assistant Cooley, not Plant
Manager Westmoreland, who devised and applied the
layoff rating criteria with respect to attendance. Second-
ly, Cooley could not recall any failure on the part of the
Company to discipline L. Jernigan for attendance prob-
lems prior to September 13. Thus, if L. Jernigan escaped
an earlier suspension, it was accomplished without Per-
sonnel Assistant Cooley's knowledge. I am persuaded
Cooley simply applied company policy when she, after
consulting with Plant Manager Westmoreland, suspended
L. Jernigan on September 13. Accordingly, I find coun-
sel for the General Counsel has failed to establish that
the attendance ratings were disparately applied against
32 The evidence related to Westmoreland's lack of discipline against L.
Jernigan for attendance problems is set forth elsewhere in this Decision
and will not be repeated at this point
L. Jernigan by Cooley. The suspension for attendance re-
sulted in L. Jernigan being given a rating of 1 in the cat-
egory of discipline also. The parties acknowledged that a
suspension for attendance was considered as a suspension
for discipline also. There is no contention that this
"double whammy," as the parties referred to it, of re-
ceiving a lower rating both in attendance and discipline
where there had been a suspension for attendance was
only applied against L. Jernigan.
Employee Stone was given a rating of 4 in discipline, a
rating of 2 in attendance and a rating of 1 each for job
experience and shift flexibility. Personnel Assistant
Cooley testified Stone received a 2 for attendance be-
cause he had two unexcused tardies, one on June 14 and
another on July 25. Counsel for the General Counsel in
her posttrial brief did not raise an issue with respect to
Stone's attendance rating. Plant Manager Westmoreland
testified Stone was only qualified to operate the small
Watson machine in the small rope department. Stone tes-
tified he had also worked as a "splicer" in that depart-
ment. He described "splicer" work as placing yarn in a
thimble and braiding it back into 3-strand type specialty
rope. On cross-examination, Stone admitted he had been
taken off "splicer" work before the layoff but denied
knowing it was because the efficiency of the "splicer"
group had not been affected by his presence on the job.
Stone also contended he could operate the "6-U" ma-
chine in the small rope department and could perform
the function of a rewinder. In light of the fact Stone was
admittedly taken off the job he contends was his primary
task in the department, I am unpersuaded that West-
moreland discriminatorily rated him on job experience.
Stone testified he had worked the first shift ever since he
had been employed by the Company and had never been
asked to work any other shift. He testified he had been
asked on occasions to come in early and work in excess
of his regular 8-hour shift. Stone stated he had on occa-
sions requested that he be permitted to work a shift other
than the first shift. He said he asked Plant Manager
Westmoreland in August to work on another shift so that
he could be with a family member requiring major medi-
cal treatment. Stone said Westmoreland did not grant
him permission but rather referred him to his supervisor.
Stone asserts Westmoreland did ask him if he thought he
could come in and tell the Company what shift he
wanted to work if there was a union at the Company.
Stone said he told Plant Manager Westmoreland he was
only interested in working another shift on those dates
that his family member needed to be taken to the doctor.
Stone acknowledged his immediate supervisor told him
he could switch shifts on those occasions he needed to if
he could find someone to swap with him. Because the
evidence shows Stone only worked the first shift except
for overtime or at his own request, I find counsel for the
General Counsel has failed to establish that the ratings
for shift flexibility were disparately applied against him.
Employee Collins was given a rating of 4 for shift
flexibility. She was given a rating of 2 for job experience
and a 1 each for attendance and discipline. Collins re-
ceived a 1 each in attendance and discipline because she
was given a suspension for attendance on August 18.
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Counsel for the General Counsel raises no issue with re-
spect to those two ratings for Collins. There is no evi-
dence to suggest the ratings in those two categories were
disparately applied against Collins. Plant Manager West-
moreland rated Collins as qualified on the "memmingen"
and "roblon rope" machines in the small rope depart-
ment. Collins testified that at the time of the layoff she
operated a memmingen machine and that she could also
operate the "roblon." In addition, she said she had per-
formed rewind functions in the department. Collins
stated on cross-examination that her work on rewind had
been during her first 2 or 3 months of employment and
that she only performed that type work thereafter on an
"as needed" basis. In light of the above, I am persuaded
counsel for the General Counsel has failed to establish
the Company disparately applied the job experience rat-
ings against Collins.
Employee D. Jernigan was given a rating of 3 for job
experience, a rating of 2 for discipline and a rating of 1
each for shift flexibility and attendance. She received a 1
in attendance as a result of a written verbal warning she
received on September 1. Because I have concluded else-
where in this Decision that the Company did not violate
the Act in disciplining her on that date, I conclude there
is no showing the Company disparately applied its at-
tendance ratings against her. D. Jernigan testified she
had only worked the first shift. Accordingly, there is
nothing to suggest that Westmoreland's rating of 1 for
her for shift flexibility was amiss. Plant Manager West-
moreland rated D. Jernigan qualified to operate the
"memmigen," "roblon" and "coiling" machines in the
small rope department. D. Jernigan said she worked 99
percent of her time on the "memmigen" machines. She
said she also inspected conductor wire and rope in the
department. Because D. Jernigan admits she spent 99
percent of her machine time on a type machine that
Plant Manager Westmoreland rated her qualified on, I
am unpersuaded that Counsel for the General Counsel
has established any disparate application of the job expe-
rience ratings against D. Jernigan. Counsel for the Gen-
eral Counsel seems to suggest that because D. Jernigan
served as a section leader or was an overall good em-
ployee that her job experience rating should have been 4
instead of a 3. The fallacy in this argument is that section
leader status was not considered in rating any of the em-
ployees. Furthermore, the Company never disputed that
D. Jernigan was a good machine operator; it only rated
her as qualified on certain machines. D. Jernigan was
given a 2 in discipline based upon a July 31, 1986, warn-
ing according to Personnel Assistant Cooley. Cooley,
when confronted with the actual disciplinary action, ac-
knowledged she had mistakenly read the date as 1986
when in fact the date was 1985. But for that mistake, D.
Jernigan would have received a rating of 4 in discipline
instead of a rating of 2. After reviewing the actual disci-
plinary warning in question, I accept Cooley's explana-
tion that it was easy on the specific written warning to
mistake the 1985 date for a 1986 date. Even if D. Jerni-
gan had been correctly given a 4 for discipline, it would
not have raised her overall rating sufficient for her to
have escaped layoff. With the error included, her overall
rating was 1.7. If the correct discipline rating of 4 had
been factored in her overall rating would have been 2.5.
In order for her to have avoided layoff in the small rope
department, she would have had to have scored at least
2.7 overall. Accordingly, I find Counsel for the General
Counsel has failed to establish that the layoff ratings
were disparately applied against D. Jernigan.
There were 10 employees permanently laid off in the
conversion department. Three of the 10, namely, Geneva
Pumphrey, Tammy Murphy, and Teresa Jones, were
probationary employees. Counsel for the General Coun-
sel does not question the layoff of these three employees.
Counsel for the General Counsel does not take issue with
the rating given Janie Bennett, an employee whose union
sentiments were not known at the time of the layoff.
Counsel for the General Counsel does note, and the
Company admits, that it could not have laid off those
employees with higher ratings that Bennett without
laying Bennett off. The General Counsel did not name
employee Phillip Raven in the complaint nor did she
take issue with his being laid off. The five employees re-
maining about whose ratings counsel for the General
Counsel does take issue with are Anderson, L. Barnes, S.
Barnes, Bishop, and Grice.
Anderson received a rating of 4 for job experience, a
rating of 3 for shift flexibility and a rating of 1 each for
attendance and discipline. Anderson was given a rating
of 1 for attendance because she had two excused ab-
sences, one each on April 13 and 14 and as a result
thereof was given a verbal warning on the 14th. Counsel
for the General Counsel does not take issue with the
warning but rather contends Cooley had to look beyond
Anderson's attendance card to her personnel file in order
to establish she had been given the warning in question. I
find nothing amiss in this procedure by Cooley inasmuch
as she was the management representative who adminis-
tered discipline for attendance and as such would have
been aware of discipline given employees even if such
was not reflected on the employees' timecards. Plant
Manager Westmoreland rated Anderson as having
worked on shifts one and three during the rated period.
Counsel for the General Counsel does not take issue with
her rating of 3 for that category. Anderson received a 1
for discipline based on a written warning on December
11, 1986, and a suspension on March 25, 1987. Her rating
was in keeping with the discipline criteria and counsel
for the General Counsel does not take issue therewith.
Thus, I am persuaded counsel for the General Counsel
has failed to establish that any of the ratings were dispar-
ately applied against Anderson.
L. Barnes was given a rating of 4 for discipline. She
was given a rating of 3 for job experience, a rating of 2
for attendance, and a rating of 1 for shift flexibility. L.
Barnes was credited with, and she admitted only being
assigned to the first shift. She said she had worked over-
time twice during the year prior to the layoff. As is
noted elsewhere, Plant Manager Westmoreland did not
consider overtime in rating employees for shift flexibility.
I find there is nothing to indicate L. Barnes was dispar-
ately rated with respect to shift flexibility. Personnel As-
sistant Cooley testified L. Barnes was given a rating of 2
for attendance because she had an unexcused tardy on
COLUMBIAN ROPE CO. 1221
July 25. This rating, which was within the attendance
rating criteria, was not contested by counsel for the Gen-
eral Counsel. Plant Manager Westmoreland rated L.
Barnes as qualified on the "roblon twister," "ring twist-
ers," and "sima twisters" machines in the conversion de-
partment. Barnes said she could operate all the machines
in the department except two new ones. However, she
stated that during the past 2 years, she had spent 99 per-
cent of her time working on the "roblon" type machines.
In light of the fact Plant Manager Westmoreland gave L.
Barnes a rating of 3 for job experience and in light of her
statement that she spent almost all her time on the
"roblon" machines, I find counsel for the General Coun-
sel has failed to establish the job experience ratings were
disparately applied against her.
S. Barnes was given a rating of 3 each for shift flexibil-
ity and job experience and a rating of 2 each for attend-
ance and discipline. Plant Manager Westmoreland testi-
fied S. Barnes had worked other machines in the depart-
ment but that she was only proficient on the "sima,"
"roblon," and "KR-2" machines. S. Barnes said she had
performed four or five jobs in the conversion depart-
ment. She specifically named the "simas," "roblons," and
"ring twisters." She also stated she had operated the
rewind machines in the small rope department and that
she had qualified for the job flexibility bonus at the Com-
pany. She admitted, however, that she was told by Per-
sonnel Assistant Cooley when she was transferred from
the small rope department back to the conversation de-
partment, that her supervisor, Mears, had said she was
slow in performing her work in the small rope depart-
ment. S. Barnes' small rope section leader Daniel testi-
fied Barnes was a little slow catching on to her work in
that department. Daniel testified he told Supervisor
Nears that he did not know if S. Barnes would work out
in small rope or not. With S. Barnes' work record and
performance level being as outlined above, I am unwill-
ing to conclude that Plant Manager Westmoreland dis-
parately applied the job experience ratings against her.
Westmoreland credited S. Barnes with having worked on
the first and third shifts and gave her a rating of 3 with
respect to shift flexibility. She first testified she had
worked all three shifts during the year prior to the Sep-
tember layoff; however, she thereafter clarified her testi-
mony and said she had worked all three shifts during the
past 2 years. Her clarified testimony does not establish
that the rating she received was inaccurate. S. Barnes
testified she had been asked to work over during the
year prior to her layoff; however, overtime was not con-
sidered by Westmoreland in rating employees for shift
flexibility. Accordingly, I find nothing amiss in S.
Barnes' shift flexibility rating. Cooley testified she gave
S. Barnes a rating of 2 for attendance because of two ex-
cused absences she had during the rating period. Cooley
explained the Company had and still has a no fault at-
tendance policy; that is absences count against employees
whether they are excused or unexcused. Counsel for the
General Counsel does not contest S. Barnes' attendance
rating and the record does not reflect any misapplication
of that rating against her. S. Barnes was given a 2 for
discipline based on two incidents namely a verbal warn-
ing given on May 17, 1987, related to work quality and a
warning given as a result of a transfer on September 5,
due to poor work performance. Counsel for the General
Counsel does not take issue with the 1987 warning but
does contend, and rightly so, that Cooley should not
have credited S. Barnes with a warning related to her
September 5, job transfer inasmuch as no warning was
actually given S. Barnes for that transfer. The circum-
stances surrounding S. Barnes' September 5 transfer and
Personnel Assistant Cooley's actions with respect thereto
are set forth elsewhere in this Decision and will not be
restated here. It is clear from what is set forth elsewhere
that Cooley's mistake with respect to charging S. Barnes
with a disciplinary warning on September 5, was not un-
lawfully motivated. Accordingly, I do not find her mis-
take to constitute an unlawful application of the disci-
pline rating against S. Barnes.
Bishop was given a rating of 4 for job experience, a
rating of 3 for discipline, and a rating of 1 each for at-
tendance and shift flexibility. Counsel for the General
Counsel asserts in her posttrial brief that Bishop could
perform every job in the conversion department but that
Plant Manager Westmoreland only gave her a rating of
4. I note a rating of 4 was the highest rating given for
that category. Therefore, I find nothing amiss in that
rating for Bishop. Plant Manager Westmoreland credited
Bishop with having worked the first shift only and as a
result gave her a shift flexibility rating of 1. Bishop ac-
knowledged she had not worked any shift other than the
first shift during the year prior to her layoff. Based on
Bishop's testimony, it appears Westmoreland's shift flexi-
bility rating was correct. Bishop was given a rating of 1
for discipline because she had been given a verbal warn-
ing related to not wearing safety glasses on January 31,
1986. Bishop acknowledged receiving the warning but
testified she was told by her supervisor at the time, Bob
May, as well as by then Personnel Manager Nancy Wal-
lace that the warning would be removed after 6 months.
Because there is no showing that Personnel Assistant
Cooley was aware that Bishop had been told, assuming
she was, that the warning would be removed after 6
months, I conclude such does not establish that the disci-
pline ratings were disparately applied against her. This is
particularly so when it is considered that all warnings for
1986, 1987, and 1988 to the date of the layoff were con-
sidered against all employees. Bishop was given a rating
of 1 for an attendance warning she had been given on
September 12. The basis for the warning was that she
had been tardy on March 13, and July 25, in addition to
September 12. The attendance problems of Bishop are
not disputed and counsel for the General Counsel does
not take issue in her posttrial brief with the rating given
Bishop for attendance. Thus, I find nothing in any of the
ratings given Bishop to suggest that the ratings were dis-
parately applied against her.
Employee Grice was given a rating of 4 for job expe-
rience, a rating of 3 for discipline, and a rating of 1 each
for attendance and shift flexibility. Grice's rating of 3 for
discipline resulted from the fact she had received a
verbal warning for conduct on January 7, 1987. This part
of Grice's overall rating is not challenged by counsel for
the General Counsel in her posttrial brief. The record
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
supports and counsel for the General Counsel does not
take issue in her posttrial brief with the rating of 1 given
Grice for attendance. Counsel for the General Counsel
does take issue with Grice's shift flexibility rating. Al-
though Grice was assigned only to the first shift during
the rated period, it is undisputed she worked some over-
time. Counsel for the General Counsel points out that
Plant Manager Westmoreland said if Grice had worked
overtime on another shift, it would have been counted as
work on that other shift. Thus, she urges Grice should
have been given a higher rating on shift flexibility. How-
ever, what is not pointed out in counsel for the General
Counsel's brief is that Westmoreland, later in his testimo-
ny, corrected any misunderstanding that might have ex-
isted as to whether overtime had been considered for
shift flexibility rating purposes. He pointed out very
clearly it was not. Accordingly, I find no disparate appli-
cation of the attendance ratings against Grice.
Counsel for the General Counsel made various other
arguments in her posttrial brief and pointed out what
may well be additional errors made by Personnel Assist-
ant Cooley in rating employees with respect to attend-
ance and discipline. I have carefully weighed counsel for
the General Counsel's contentions and the evidence in
support thereof and I am persuaded these additional mat-
ters do not detract from the findings I have made herein.
In summary and as indicated earlier, I am persuaded
the Company has demonstrated it would have selected
those it did for layoff on September 16 and would have
thereafter declined to recall the ones it failed to recall
and would subsequently have terminated those it did
even if any or all its employees had not engaged in any
union or protected activities. I note the Company, in no-
tifying the employees on March 28, 1989, that they were
terminated, was simply following its past practice of
doing so.
Accordingly, I shall dismiss paragraphs 16(a) and (b)
of the complaint.
CONCLUSIONS OF LAW
1. Columbian Rope Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. By coercively interrogating its employees concern-
ing their union activities; by soliciting employee griev-
ances and impliedly promising to remedy them; and, by
promising employees unspecified benefits if the employ-
ees would support the Company and/or abandon support
for the Union, the Company violated Section 8(a)(1) of
the Act.
4. The violations of the Act noted above constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. The Company has engaged in no other unfair labor
practices not specifically noted above.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
It is recommended that the Company be ordered to
post a notice to employees attached hereto as "Appen-
dix" for a period of 60 consecutive days in order that
employees may be apprised of their rights under the Act
and the Company's obligation to remedy its unfair labor
practices.
[Recommended Order omitted from publication.]