Douglas & Lomason Co.

National Labor Relations Board - Board Decisions

Aug 26, 1991

304 N.L.R.B. 322 (N.L.R.B. 1991)

322
304 NLRB No. 48
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent 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 evi-
dence 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 ex-
amined the record and find no basis for reversing the findings. Additionally,
we are satisfied that the Respondent’s contentions that the judge was biased
are without merit. There is nothing in the record to suggest that his resolutions
of credibility, his, rulings, or the inferences he drew were affected by bias or
prejudice.
1 All following dates will be in 1990 unless otherwise indicated.
Douglas & Lomason Company and International
Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO. Cases
26–CA–13556 and 26–CA–13839
August 26, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On February 27, 1991, Administrative Law Judge
Richard H. Beddow, Jr., issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Douglas & Lomason Com-
pany, Milan, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Jack L. Berger, Esq., for the General Counsel.
George K. McPherson, Jr., Esq., Robert N. Godfrey, Esq.,
and Teri P. McClure, Esq., of Atlanta, Georgia, for the
Respondent.
Mark Allen, Esq., of Memphis, Tennessee, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Milan, Tennessee, on July 30
through August 2, 1990. Subsequent to an extension of the
filing date, briefs were filed by all parties. The proceeding
is based on charges filed on November 17, 1989, and May
3, 1990,1 by the International Union of Electronic, Electrical,
Salaried, Machine, and Furniture Workers, AFL–CIO. The
Regional Director’s consolidated complaint, dated June 6, al-
leges that Respondent Douglas & Lomason Company, of
Milan, Tennessee, violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act during the course of a union orga-
nizational campaign by threatening to close its plant, creating
the impression of surveillance, interrogating employees, re-
questing employees to surveil on the Union, informing an
employee that he was terminated for his union activity, and
discharging employee Marion Bledsoe.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture and sale of
seats for automobiles. It annually ships goods valued in ex-
cess of $50,000 from its Milan location to points outside
Tennessee and it admits that at all times material is, it has
been an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
It also admits that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Background
Respondent operates 25 plants in various locations, 3 of
which are unionized. Respondent previously had a unionized
plan in St. Louis, but closed that plant and moved the oper-
ations to Milan. This plant employs over 1000 people and
has 3 main subdivisions; the foam department, where foam
seat padding is made; the sewing department, where seat
covers are made; and the assembly department.
At all times material, James F. Ramsey has been plant
manager, Terry Branscum plant superintendent, Gerald Keele
production manager, JoAnn Warmath personnel manager,
and Charles Elliot, Elena Fly, Theresa Douglas, and Alma
Kyle supervisors. Rodney Blackburn was a clock foreman in
the foam department and all these individuals are admitted
statutory supervisors.
On brief the Employer admits that it became aware of the
Union’s organizing campaign among its employees in Sep-
tember 1989. Thereafter a number of subsequently discussed
incident occurred which are alleged to have interfered with
employees’ rights. These actions continued over several
months and cumulated in the termination of employee Mar-
ion Bledsoe on April 30, 1990.
Charles Elliot is a first-shift production line supervisor of
over 22 employees consisting of sewing machine operators,
‘‘truck girls’’ and ‘‘bundle girls.’’ Phyllis Howard worked in
his department as a ‘‘bundle girl.’’ On October 4, during a
conversation while she was on break in the cafeteria, Elliot
told Howard that the Company had a list of 30 employees
who supported the Union, and it was the Company’s inten-
tion to get rid of them. He went on to say that they had ways
of getting rid of these employees whereby the employees
would not know they were being terminated. Howard testi-
fied that up to that time, she had not worn either a union
T-shirt or button or otherwise displayed her sympathies to-
ward the Union.
323DOUGLAS & LOMASON CO.
The next day, October 5, Elliot ate lunch with Howard and
told her that Cindy Aeshbacher, a sewing machine operator
in his department, would not be employed much longer. He
said that he had overheard Aeshbacher say ‘‘what we needed
was a union in that plant,’’ and that they would get rid of
her if they had to put her on the hardest job in the plant.
October 17, 1989, Plant Manager Ramsey gave a prepared
speech to the employees in which he made it clear that he
did not want a union and that he considered the Union’s at-
tempt to be similar to the past situation in St. Louis where
Respondent closed and moved because of 3 years of ‘‘Union
Interference.’’ Elliot next approached Howard and told her
that if she saw anyone passing out union literature, she
should bring it to his attention and let him know who was
passing it out. Then, on November 27, 1989, Elliot again
spoke with Howard and told her that the Company was con-
cerned because they did not know whether she was against
the Union. He then said that if she wanted a job, she had
better come in to work wearing a ‘‘Vote No’’ button where
everyone could see it.
Previously, in early November Elliot had a meeting with
all the employees in his department in which he told them
that the Company was losing business because one of Chrys-
ler’s plants that Respondent supplied was going out of busi-
ness because a union had been voted in. He also told the em-
ployees that the reason Respondent had moved to Milan in
the first place was because its St. Louis plant had voted in
a union and in response the Company had closed the plant
down. In the same meeting he also said that if this plant
voted in a union, the work done at the Milan plant would
be shipped to their plant in Mexico. (This initial testimony
by Howard was corroborated by employees Beverly Dorsett
and Cindy Aeshbacher.)
In late October, First-Shift Sewing Line Supervisor Elene
Fly called the employees from her four lines together and
said that they were supposed to get some work from Chrysler
A Body, but that Chrysler’s Jefferson L Body plant was
going out because it had a lot of friction between union and
management and they closed the plant because of such fric-
tion.
In November, Fly had a conversation with employee Re-
becca Mosby at her sewing machine, 1 day after Mosby had
been at a union meeting. Mosby testified that Fly asked if
she had attended any of the union meetings and who was
present. When Mosby told her she had, but that she was not
familiar with all who were present. Fly asked her how many
were there. Mosby was wearing an IUE button at the time
Fly talked to her. Fly, however, said that Mosby volunteered
the information after Fly had returned to the line from a
meeting ‘‘upstairs,’’ Mosby asked her if it was a meeting
about the Union and when Fly told Mosby it was, Mosby
then allegedly said she had gone to a union meeting last
night and that Fly would never guess who was there and
continued to tell her.
In early November, 3-year employee Rebecca Mosby was
told by Supervisor Fly that Plant Manager Ramsey wanted
to see her in his office. When they were alone Ramsey asked
her if she attended a union meeting and when she said
‘‘yes,’’ he asked her how many employees were present. He
asked her not to repeat this to anyone else because it was
against the law and he could go to jail for speaking up
against the Union. He showed her newspaper clippings on
what the Union could do as far as causing strikes at a plant,
and asked her who was present at the meeting and she told
him that 2–3 former supervisors were there and 9–10 em-
ployees. Ramsey then asked her to attend ‘‘some more’’
meetings and she left and returned to her sewing machine.
Ramsey, however, claims that Mosby came in and volun-
teered to go to union meetings and to let him know what was
going on and that he told her he could not ask her to go,
that it is against the law and he could not do that. He said
he could go to jail or something bad could happen to him
if he asked her to do that. He said, however, that if you go
on your own, that is up to you, but he could not ask her to
do that. He asserted that Mosby came back and reported to
him that there was nothing to worry about out there in the
plant, there is no union coming in here, it is just a bunch
of baloney.
Fly supervised 33 first-shift employees on 4 sewing lines
that were visible from her desk. On November 27, about 11
a.m. Respondent made some ‘‘Just Say No To Unions’’ but-
tons available to employees. Fly held up one of the buttons
and asked the girls if they wanted to go upstairs and get their
buttons. About 10 or 11 employees from the 4 lines went up-
stairs to the cafeteria and got a button. When they returned
Fly checked to see who had buttons on and who did not.
Susan Moore testified that Fly came to her and said that she
had not gone upstairs and gotten her button. Moore re-
sounded that she didn’t wear buttons and asked if Moore had
ever seen her wear one. Fly admitted that the employees
were allowed to go up to the cafeteria to get the ‘‘Just Say
No! To Unions’’ buttons while they were on the clock but
claims she did not see how many left to get buttons.
Clock Foreman Theresa Douglas held a meeting with em-
ployees in the cafeteria in October or November. Production
Manager Simpson was present. In response to a question
about the Union, Douglas said that every place she had
worked that had a union had closed and she admitted that
she told them that the plants she worked closed because the
Union came in. When a question was asked if Lomason, the
president of the Respondent, had said that the plant would
close if the Union got in, Simpson replied that Lomason had
not said that.
Supervisor Alma Kyle of ‘‘A Body’’ had a meeting of five
of her employees on November 6. She discussed the Union
and spoke about the Jefferson City plant being unionized and
said the ‘‘L Body’’ was going to close down because the Jef-
ferson plant did not want to take another union contract. In
response to a question about the reason the plant was closing
down, Kyle said ‘‘yes, that a company could do that if they
didn’t want to take another contract they didn’t have to’’ and
added that the difference between Jefferson City and Re-
spondent was that Jefferson City was union organized.
Kathy Jo Callis was a sewing machine operator and ‘‘bun-
dle girl’’ on the second shift. In late October 1989, Callis
was approached by Second-Shift Plant Superintendent Terry
Branscum who asked if she was for the Union. When she
said no, he asked her if she would attend the union meetings
because they needed someone in there to see what was going
on. Branscum also told Callis not to mention this to anyone,
even other supervisors. Callis did nothing at that time as she
thereafter was laid off for a production slowdown. On De-
cember 12, Callis got a phone call at home from Branscum.
He told her that he wanted her to come in to work the next
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
day and to then leave and go to a union meeting at 7 p.m.
She agreed and went to the plant the next day. She went to
Plant Manager Ramsey’s office and told him that Branscum
had told her to come to work on December 14 and to leave
work at 7 p.m. to attend the union meeting but that she
didn’t think it was fair that she had to clock in and go to
work and mess up her unemployment, if all they wanted her
to do was to go to a union meeting. Ramsey agreed that all
they wanted her to do was to go to the union meeting and
that there was no need for her to clock in. She went to the
meeting, returned to the plant around 9 p.m. and met
Branscum in his office. He asked what went on at the meet-
ing and she told him there was nothing to worry about and
identified two people she recognized at the meeting.
Branscum stopped her and phoned Ramsey and told him the
two names. Callis told him that most of the people at the
meeting were from another industry also located in Milan.
Branscum called Ramsey again and told him he might want
to call that company and let them know there were a lot of
people there supporting the Union.
Branscum then attempted to pursue a personal relationship
with Callis. She rebuffed his advances and thereafter he gave
her $5 for gas money. Callis was recalled from layoff in Jan-
uary 1990 and in late February, Branscum called her aside
and told her that he wanted her to attend a union meeting
and to leave at 7 p.m. He said it was going to be a big one
and he wanted her there to see what was going on. She
agreed to go and then told her Line Supervisor Georgia Bell
that she was not going to clock out, explaining that they
wanted her to spy on another union meeting and that they
were still going to pay her. Bell said she did not know what
to do with Callis’ time but came back and said she had
found out from Production Manager Gerald Keele how to
carry Callis’ time indirect, that he was going to need her in
the warehouse.
Callis attended the meeting and returned between 9 and
9:30 p.m., when she met with Production Manager Keele.
She told him that she didn’t think she should take her union
button off because the place needed a union. Keele asked her
why and she made a revelation of her involvement in sexual
relationships with Second-Shift Plant Manager Branscum and
Day-Shift Plant Manager Ramsey. Keele called Branscum to
his office and matters pertaining to job-related sexual harass-
ment by Managers Branscum and Ramsey were discussed.
Branscum asked to speak privately with her and apologized
for all that had happened and said he was sorry he has asked
her to spy on union meetings.
The sexual harassment matter is the subject of a pending
suit before the EEOC. Branscum’s testimony confirms cer-
tain aspects of the facts noted above but asserts that Callis
approached him and volunteered to go to the union meeting
and that she was upset because she had been bumped for se-
niority reasons to a job assignment that paid $.30 less an
hour. He deny they talked about any accusation of sexual
harassment.
Marion Bledsoe was an employee between February 1989
an April 30, 1990, when he was terminated, allegedly for
fighting on company property on April 27. As pertinent,
Bledsoe worked with 16 other employees on or adjacent to
the foam line on the second shift under Supervisor Rodney
Blackburn. Shortly after being hired he had surgery on his
arm after suffering an on-the-job injury. As a result of that
injury he wore a brace on his left arm while he worked.
Bledsoe was actively involved in the union organizing
campaign. He made house calls, handed out union materials
at work on breaks, and wore union shirts and buttons every
day during the campaign. On one occasion Manager Ramsey
spoke with him about a union meeting and Bledsoe said he
had attended and signed a card. Except for one other em-
ployee, Donna Birdwell, none of the other second-shift foam
line employees were union supporters.
During April Bledsoe’s job on the automatic foam line en-
tailed spraying wax on the molds used to form the foam seat
pads and to place a 42-inch metal rod into certain types of
molds.
Bledsoe described a series of three incident which oc-
curred during the last week of April, prior to his discharge.
On Monday, April 23, he said he was the apparent target of
a thrown squeeze bottle of cleaning alcohol (used by the
foam technician) which hit another employee after Bledsoe
saw it coming. He accused foam technician Robert Dale
White of throwing it, however, no one else acknowledges
that any such incident occurred, including Gary Whitwell,
the person allegedly hit.
On April 24, Bledsoe alleges that another foam line em-
ployee approached him and pulled what appeared to be a
knife, threatened to cut him, and then walk away. Bledsoe
also said he turned and saw Managers Branscum and Keele
and Supervisor Blackburn at the end of the line laughing and
apparently looking in his direction. Bledsoe said that he
made a complaint to Blackburn, who smiled and said he
would look into it but made no further response. The alleged
assailant denies any such occurrence and Blackburn denies
that Bledsoe ever complaint to him about these incidents.
The next incident occurred on Wednesday when some sub-
stance suddenly went into the fan at Bledsoe’s work station,
causing a significant cloud of dust that got into his eyes and
caused a burning eye irritation which required him to leave
the line and to subsequently obtain first aid treatment that
day and medical attention at a hospital the following day.
Bledsoe accuses White of throwing a chemical dust into the
fan and reported it to Blackburn. Blackburn spoke with
White after which White angrily accosted Bledsoe. After ini-
tially declining Blackburn’s suggestion that the incident be
reported as an accident, Bledsoe signed a blank report form
on Thursday for office personnel and he then was taken to
the hospital. On his return he was told to go home, that his
time would be carried and that Blackburn would punch out
for him. White and several other employees confirmed that
the dust incident occurred, but White denied that he caused
it or that he had any discussion about it with Bledsoe and
asserted that he didn’t see it start as he had gone to the bath-
room.
Bledsoe testified that on Friday, April 27, White called
him a ‘‘cry baby’’ and some other things and then said that
‘‘someone was going to get their ass whipped tonight.’’
After supper break some one else on the line made a similar
comment. Then, during the course of the evening, a number
of verbal exchanges occurred between Bledsoe and Virgil
Kimmons and, as recalled by Ronnie Jones, the tenor of ex-
change became increasingly hostile and Kimmons told
Bledsoe that he’d better shut up, he wasn’t playing.
325DOUGLAS & LOMASON CO.
Kimmons, who was hanging wire on the foam line about
10:30, shouted to Bledsoe from the end of the line that he
had left two sticks out of the molds and said that if he left
another stick out, he would ‘‘kick his ass.’’ In fact, he said,
‘‘I’ll do it right now.’’ Kimmons left his work station and
ran down toward Bledsoe and brushed past Jones, who was
between then on the line, came to the area of Bledsoe’s work
station and began throwing punches. Bledsoe backed up and
raised his arms (his brace was on one arm) and a leg in an
attempt to ward off Kimmons. Kimmons grabbed Bledsoe’s
foot and flipped him backwards into a worktable. Employee
P. J. Gonzales then grabbed Kimmons and restrained him.
When Bledsoe got up he looked around and he saw people
laughing and saw Blackburn, Branscum, and Keele watching.
Branscum called Bledsoe to his office and asked Bledsoe
what happened. Bledsoe replied he didn’t need to be told
he’d already seen what happened. Branscum told Bledsoe to
sit down and to shut his mouth and not to talk unless talked
to and said that Blackburn and Keele would take everybody
else into another office and get statements from them on
what happened. No statement was taken from Bledsoe but he
told Branscum he was not fighting and that he was assaulted
at his work station while he was doing his job.
About 11 p.m., Bledsoe was told he was suspended and
to report to Ramsey’s office at 3:30 p.m., on Monday. When
Bledsoe told Branscum that he had an arm injury Branscum
said it was just a scratch to go on home. When Bledsoe got
home, his arm was bleeding from a cut and his elbow was
swollen. He called the plant and spoke with Manager Keele
and received approval to go to a nearby hospital.
On Monday, April 30, 1990, Bledsoe met with Ramsey,
Branscum, and JoAnne Warmath in Ramsey’s office.
Bledsoe asked where were the people that had done this to
him. Ramsey said he was not concerned with them as he was
only concerned with Bledsoe and told Bledsoe he was termi-
nated for fighting. Personnel Manager Warmath testified that
they keep Bledsoe waiting about 20 minutes because they
were waiting for Kimmons (who did not show up but who
was terminated 2 days latter by certified mail), and that
Ramsey told Bledsoe they had gotten statements and deter-
mined that both employees were fighting and were to be ter-
minated. She also said that Bledsoe then mentioned chemical
dust in his eye and asked what would be done about that and
Ramsey said he wasn’t really concerned about that right
now. Branscum’s recollection of how this meeting occurred
was essentially the same as Warmath except that he recalled
Bledsoe also mentioned the alcohol bottle incident. Neither
one mentioned anything about Ramsey asking to hear
Bledsoe’s side of the story, an assertion made in Ramsey’s
own testimony about the termination.
After Ramsey said he was terminated for fighting Bledsoe
protested that he was not fighting, he was in his work area
when it happened, that he was assaulted, and that he was the
only one hurt. Ramsey said the meeting was over and
‘‘you’re fired.’’ Ramsey told Warmath to get Bledsoe’s time-
card and I.D. badge. As Bledsoe was walking out, Ramsey
assertedly made an aside that he could take his union shirt
and union button and maybe they would trade them for a cup
of coffee at Shoney’s.
That evening, Bledsoe, who is a former Marine, went to
the Am-Vet Club in Trenton, Tennessee, where he saw Su-
pervisor Rodney Blackburn along with employees Alan
Baumgardner, Kenny Lee, and Virgil Kimmons approach the
club. They were not veterans or members and were denied
entrance to the club by the bartender. They then proceeded
to vandalize Bledsoe’s truck which was parked outside near
the entrance. They thereafter were arrested by a sheriff’s
deputy and charged with the vandalism. Prior to the time of
the hearing, Kimmons, Blackburn, and Lee all pled guilty to
the vandalism and were sentenced to an 11-month, 29-day
sentence (suspended) and ordered to pay restitution in the
amount of $750 for the damage done to the truck. At the
time of the hearing, the charge against Baumgardner was still
pending. None of these employees were disciplined by Re-
spondent for anything connected with the vandalism of
Bledsoe’s truck.
III. DISCUSSION
The issues in this case arose from events which occurred
contemporaneously with a union organizational drive at Re-
spondent’s facility and concluded with the discharge of 1
employee who was the single union activist among 16 em-
ployees on the second-shift foam line.
A. The Termination of Marion Bledsoe
In a discharge case, applicable law requires that the Gen-
eral Counsel meet an initial burden of presenting sufficient
evidence to support an inference that the employee’s union
or other protected concerted activity was a motivating factor
in the employer’s decision to terminate the employee. Here,
the record shows that Bledsoe was a known union supporter
and, except for one other person who had shown some sym-
pathy for the Union, was the only person on his production
line shift who actively promoted and spoke out for the
Union. As otherwise discussed here, the Company’s plant
manager gave a prepared speech which clearly demonstrated
that the Respondent was strongly against the Union and
equated the organizational drive with the prior situation when
Respondent closed its plant in Saint Louis and moved to
Milan because of ‘‘Union interference.’’ During the course
of the Union’s organizational attempt other company super-
visors engaged in threats of plant closure and several other
acts of interference with employees’ rights as further dis-
cussed below.
Under these circumstances, the record contains sufficient
and suitable evidence to persuasively support an inference of
antiunion animus, and I find that the General Counsel has
met his initial burden and made a prima facie showing that
the employee’s union activities were a motivating factor in
Respondent’s subsequent decision to terminate the alleged
discriminatee. Accordingly, the testimony will be discussed
and the record evaluated in keeping with the criteria set forth
in Wright Line, 251 NLRB 1083 (1980), see NLRB v. Trans-
portation Management Corp., 462 U.S 265 (1983), to con-
sider Respondent’s defense and, in the light thereof, whether
the General Counsel has carried his overall burden.
Respondent’s defense is based on its contention that
Bledsoe’s termination was justified in accordance with its
rules against fighting and that he was discharged for legiti-
mate, nondiscriminatory reasons.
The Respondent attacks the reliability of Bledsoe’s testi-
mony and contends that it is patently incredible, especially
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as it relates to his descriptions of the several incidents which
occurred prior to the alleged ‘‘fight’’ on April 27.
My evaluation of Bledsoe’s demeanor indicates that he
displays annoying personality traits and a somewhat single
mindedness in his opinions and recall of events such that he
apparently tends to extrapolate information and to interpret
and describe more than what actually occurred. This, how-
ever, does not make the heart of his testimony incredible.
The testimony of the other employees on the foam line dur-
ing the week of April 23 generally discounted the seriousness
of the several incidents that Bledsoe said had occurred and
Dale White essentially denies his involvement in any of
them. Supervisor Blackburn also denies that any complaints
were made to him about the first two incidents involving the
bottle of cleaning alcohol and the verbal threat that he would
be ‘‘cut.’’ Superintendent Branscum, however, did recall that
Bledsoe spoke about the bottle complaint the day he was ter-
minated, within 1 week of the alleged occurrence and Per-
sonnel Manager Warmath also recalled that Bledsoe brought
up the ‘‘dust’’ complaint at the same time.
Several of the line employees confirm the ‘‘dust’’ incident
as well as details of the ‘‘fight’’ incident but, as noted, they
deny any knowledge of the cause or involvement in the
‘‘dust’’ matter. The so called ‘‘dust’’ incident did occur and
it was clearly a singular and unusual occurrence. I find that
it could not have been caused accidentally in the normal
course of operation as suggested by Respondent. Supervisor
Blackburn insistently treated the matter as an accident and no
meaningful investigation of the matter was made even after
it became apparent that a relatively serious eye irritation had
resulted that was chargeable to Respondent’s work environ-
ment, and I infer that Blackburn was attempting to cover up
an incident of harassment and job related injury that should
be chargeable to his responsibility. In the light of subsequent
events, the ‘‘incredible’’ aspects of Bledsoe’s testimony fall
into place and become more credible and plausible and, for
these reasons, I further conclude that Bledsoe was the target
of harassment by other employees in the bottle and dust inci-
dents, and I do not find Blackburn’s and White’s denial cred-
ible under the circumstances. I also specifically find that
threatening comment were made to Bledsoe to the effect that
some one would get him.
These matter did not cumulate with the ‘‘fight’’ incident
but continued even after Bledsoe was terminated when Su-
pervisor Blackburn, in the company of two other employees
and Kimmons, the other participant in the fight incident, fol-
lowed Bledsoe and vandalized his vehicle. When this action
occurred on Monday evening, April 30, Kimmons was still
an employee and he was not sent a termination notice until
Wednesday. As noted, Blackburn, Kimmons, and one other
employee were arrested, entered guilty pleas, and were given
suspended jail sentences and ordered to pay $750 in restitu-
tion. All those involved, except Kimmons, returned to work
for Respondent and were never subjected to any disciplinary
action in relation to the incident.
Here, I find that Blackburn’s position as a supervisor, his
repeated connection to all the harassment incident testified to
by Bledsoe, his admission of guilt and sentence in state
court, and his association with other employees including
Kimmons, the ‘‘fight’’ participant and alleged assailant, all
support an inference that he untruthfully denied the basic as-
sertions made by Bledsoe. In light of all these factors, it be-
comes probable that Bledsoe’s basic testimony is not incred-
ible but, in fact, is highly likely and lead to a plausible infer-
ence that Blackburn both conspired with other employees
and condoned their harassment of Bledsoe. The record other-
wise shows that, in turn, other of Respondent’s supervisors
condoned or endorsed this harassment. Under these cir-
cumstances, I credit Bledsoe’s testimony regarding the under-
ling facts concerning his harassment and discharge over the
testimonies of the other witnesses, testimony which I find is
essentially self-serving and in furtherance of an effort to con-
ceal their participation in the conspiracy against Bledsoe.
As the credible evidence shows, Bledsoe was subjected to
verbal and physical harassment during the week of April 23
and it continued on Friday with further verbal threats sug-
gesting what was to come. Bledsoe responded to this appar-
ent provocation with his own verbal retorts. Regardless of
the nature or wisdom of his actions, their is nothing in the
record to suggest that he was responsible for causing a fight
or that he participated in a fight. A few of the line employ-
ees testified that both Kimmons and Bledsoe were swinging,
however, the general tenor of the collective testimony is that
Kimmons left his work station, went 15 to 20 feet brushing
past Jones and began attacking Bledsoe and that Bledsoe’s
movements were defensive in nature. Finally, as stated by
line employee P. J. Gonzales (who was significantly larger
than either Bledsoe or Kimmons), he saw Bledsoe going
down on the concrete floor with Kimmons ‘‘going on top
of’’ and toward Bledsoe when he intervened and grabbed
Kimmons to break it up.
Respondent’s investigation of the matter and the basis for
Bledsoe’s termination is based on statements taken by man-
agement from several employees. The statements by these six
line employees show that Kimmons went to Bledsoe’s station
and was the aggressor. One also said ‘‘they started passing
licks’’ and one ‘‘they pushed each other around.’’ Three
statements said nothing about any aggression by Bledsoe and
even Alan Baumgardner (who subsequently was involved
with and arrested with Kimmons and Blackburn in the van-
dalism to Bledsoe’s vehicle but who was not called to tes-
tify) wrote ‘‘Bledsoe struck his foot up. I was pulling seats
and couldn’t tell whether he was trying to kick him or push
him away. Then they fell off cat walk some kind of way.’’
The tenor of the statements and Bledsoe’s abbreviated as-
sertion to management in his own defense strongly suggest
that Bledsoe was the victim of an assault by aggressor
Kimmons. Respondent, however, hastily discounted any de-
fense and immediately took the strongest possible action
against the less culpable person involved. Even after it be-
came aware of the subsequent off duty actions against
Bledsoe by Supervisor Blackburn, witness Baumgardner,
Kimmons, and another employee, it did nothing to reevaluate
its decision and I infer that each action was motivated by its
antipathy toward Bledsoe because of his prounion sym-
pathies.
The circumstances strongly indicate that the so-called
‘‘fight,’’ as well as the harassment that preceded it, was ‘‘set
up’’ by the production line nonunion employees. This ‘‘set
up,’’ if not participated in by Supervisor Blackburn, was at
least condoned by him, and thereafter condoned and en-
dorsed by successively higher levels of management. The
Respondent immediately seized on the incident as an oppor-
tunity to rid itself of a prounion agitator. It fired Bledsoe
327DOUGLAS & LOMASON CO.
after making a hasty and perfunctory investigation that dis-
regard any exculpatory matter and it took strict disciplinary
action that was inconsistently followed by its complete
avoidance of any disciplinary investigation or action regard-
ing the criminal activity against Bledsoe by Supervisor
Blackburn and other employees shortly after his discharge.
Here, I find that Bledsoe was unjustifiably subjected to
harsh and disparate discipline for pretextual reasons moti-
vated by a discriminatory intent based on his union sym-
pathies. I conclude that Respondent has failed to show that
Bledsoe was terminated for valid business reasons, and I find
that the General Counsel otherwise has meet his overall bur-
den of proof. Accordingly, I further conclude that Respond-
ent’s discharge of employee Bledsoe is shown to have vio-
lated Section 8(a)(1) and (3) of the Act, as alleged.
B. Alleged Plant Closure Threats
As noted above, the termination incident was preceded by
a number of alleged actions by management that are indic-
ative of interferences with employees’ rights during the
course of a union organizational campaign. The occurrence
of several actions by management is unrefuted. Specifically,
on October 17, Plant Manager James Ramsey gave a speech
in which he stated:
A union is not in the best interest of either the Com-
pany or its employees. It will stand between us, sow
seeds of mistrust between employees and their super-
visors and interfere with our ability to efficiently and
effectively operate this plant.
In fact, the only reason any of you have a job here
today is because of union interference. This operation
was originally started in 1973 in St. Louis. That is a
strong union town, and shortly after the plant opened
the Teamsters got in. The union was disruptive and
continually interfered with the ability of that plant to
operate effectively. Just three years after the plant was
opened, the company determined that it could not oper-
ate effectively in that environment, closed the plant and
moved the operation here where you now work. The
Company to this day believes that if it had not been for
union interference, the plant would have been success-
ful in St. Louis and would still be there.
These are the types of risks you run when a union
comes in.
I find this speech constitutes a threat to close the plant if
the Union comes in, and that it clearly interferes with, re-
strains, and coerces employees in the exercise of their Sec-
tion 7 rights in violation of Section 8(a)(1) of the Act, as al-
leged.
Foreman Douglas, in the presence of the production man-
ager, told employees that every place she had worked closed
because a union came in. Supervisor Fly told employees that
a customer’s plant had closed because of friction between the
company and a union, and Supervisor Kyle told her employ-
ees the same story and said that the company could close
down because it didn’t want to take a union contract. Super-
visor Elliot told employees a customer’s plant was going out
of business because a union had been voted in. He also told
them that the reason the Respondent had opened in Ten-
nessee was because the Saint Louis plant had voted in the
Union and the company therefore closed, and that if the
Milan plant voted union the work would be shipped to Mex-
ico.
Here, the plant manager’s speech included a threat that the
company would react the same way it did in Saint Louis
when the plant closed after the Union came in and this same
theme was repeated by several other supervisors in both pri-
vate and group conversations. It is well established that an
employer may not threaten to close a plant or terminate em-
ployees because of union activities, Penn Color, Inc., 261
NLRB 395, 405 (1982). This threat was the clear message
understood by the employees in each of these instances and,
under these circumstances, I find that each of Respondent’s
supervisor’s actions have infringed on the employee’s Sec-
tion 7 rights and, accordingly, I conclude that Respondent
violated Section 8(a)(1) of the Act, as alleged.
C. Other Alleged 8(a)(1) Violations
During the same period of time when the threats of plant
closure were made by various supervisors, some of these
same persons, as well as other supervisors, allegedly engaged
in other practices which they deny in whole or in part and,
accordingly, the decision on the validity of these allegations
must be based on an evaluation of the credibility of the wit-
nesses’ conflicting testimony.
Here, I find that the individual and collective testimony of
the employee witnesses generally should be credited over the
denials or conflicting recollections of Respondent’s super-
visors. As noted above, the occurrences of threat of plant
closure essentially stand unrefuted and they indicate the prev-
alence of a climate which is highly compatible and consistent
with the nature of the other allegations discussed below. Spe-
cifically, the testimony by employee Callis regarding several
requests that she attend union meetings to see what was
going on. Respondent admit that Callis attended a union
meeting on company time but asserts that she did so volun-
tarily and that there was no violation of the Act, citing Senco
Mfg. Corp., 141 NLRB 1306, 1308–1309 (1963). The latter
case however, supports the General Counsel position as it
goes on to state that the giving of payment for time spent
at the meeting is an element that violates the Act. More in
keeping with Board law is the precept that even if a person
volunteers, a company’s acquiescence to such a proposal is
an act of encouragement that violates the Act, Murray Enve-
lope Corp. of Mississippi, 130 NLRB 1574, 1576–1577
(1961), and the addition of an inducement or a payment also
is a violation Cello-Tak Co., 143 NLRB 295, 295–296
(1963).
Here, I also credit Callis’ testimony that she specifically
was asked by Second-Shift Plant Superintendent Branscum to
attend several union meetings, and I do not credit
Branscum’s testimony that she volunteered to do so nor his
testimony denying a personal relationship with Callis. Callis’
testimony tends to be corroborated in part by Glynda Wil-
liams, a currently employed inspector at the company who
testified that one evening in November she observed Callis
leaving the production office (an office open only to super-
visors with keys). Callis ‘‘didn’t look right,’’ she looked
‘‘upset’’ and when Williams asked her to come here, Callis
answered she couldn’t and said, ‘‘I can’t walk.’’ Two or
three minutes later, after Callis went back toward her depart-
ment, Williams saw Branscum come out of the same office.
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Branscum himself testified that he called Callis from the
production line stating:
A. I don’t remember the date, but there was one
afternoon that we heard that they were having a union
meeting. I went out on the floor and asked Ms. Callis
to step out of the cell, and asked her did she know they
was going to have a union meeting that night, and she
said, yes, that she did, but she didn’t plan on going, be-
cause she had been laid off and couldn’t afford it, but
if I could figure out a way to keep her from losing any
time, that she would like to go.
Q. And what did you do?
A. I called Mr. Ramsey and advised him of the situa-
tion and we decided since she had been going and
wanted to go of her own free will, that we’d let her go.
Q. To the union meeting?
A. Yes, sir.
Q. And was she clocked in when she went to the
union meeting?
A. Yes, she was.
Q. And after she came back from the union meeting,
did she come back to work?
A. Yes.
Q. What did she do when she came back to work?
A. Gerald Keele paged me and said that Ms. Callis
would like to speak with me, and I went up to the of-
fice, and talked with her.
It is clear that Branscum’s relationship with Callis was
more than just that of plant superintendent and line em-
ployee. Branscum was senior to Line Supervisor Bell and
Production Manager Keele (who both were mentioned in
Callis’ testimony), neither of whom was called to corroborate
Branscum’s testimony and Ramsey, who also was involved,
did not refute the testimony about Callis going to union
meetings to spy for the Respondent, although he did deny he
had any personal relationship with her. Although the Re-
spondent asserts that the fact that Callis (who is no longer
employed by the Respondent) filed charges of sexual harass-
ment and discrimination with the EEOC should serve to dis-
credit her testimony, the two proceedings are mutually inde-
pendent of one another and I otherwise find that Callis’ ap-
parent candor in this proceeding under trying and embarrass-
ing conditions reflects affirmatively on her credibility.
Accordingly, I credit Callis’ description of the several oc-
casions when she was asked to attend union meetings and
engage in surveillance of other employees’ union activities
and I therefore find that Respondent engaged in unlawful
surveillance as well as solicitation of an employee to under-
take surveillance, both in violation of Section 8(a)(1) of the
Act, as alleged.
I credit the testimony of employee Howard regarding her
conversations with Supervisor Elliot. Elliot agreed that he
had several conversations with her and agreed with the gen-
eral nature of their talks, however, he denied any specific il-
legal conduct. Employees Aeshbacher and Dorsett also cor-
roborated Howard’s testimony regarding statements by Elliot
which related to threatened plant closure and I therefore find
Howard’s testimony to be more trustworthy than that of El-
liot, and conclude that Elliot made the statement which im-
plicitly threatened employees that the plant would close if
the Union came in and that employees who supported the
Union would be fired. I also find that he told her she should
wear a ‘‘Vote No,’’ antiunion button if she wanted a job and
that he asked her to identify any persons who distributed
union literature, all actions which infringes on employees’
Section 7 rights and which violate Section 8(a)(1) of the Act,
as alleged.
The allegations by employee Mosby that Manager Ramsey
interrogated her about who attended union meetings is denied
by Ramsey. Mosby once asked her supervisor’s permission
to see Ramsey, saying she needed to correct some statements
she had told him and otherwise her demeanor indicated that
she displayed a changeable and inconsistent nature and at-
tempted to manipulated her relationship with Ramsey.
Ramsey’s assertions that Mosby in fact volunteered informa-
tion about the Union is equally as persuasive as the question-
able testimony by Mosby and, under these circumstances, I
cannot find that the General Counsel has shown a violation
of the Act in this respect as alleged in paragraph 8(a) and
(d) of the complaint.
Finally, the record shows that Sewing Line Supervisor Fly
announced the availability of ‘‘Just Say No To Unions’’ but-
tons and Fly admitted she allowed employees to go and get
them while still on the clock. I credit employee Moore’s tes-
timony that Fly checked to see if she had gotten a button
over Fly’s self-serving claim that she didn’t bother to see
who got buttons, especially because she asserted that
‘‘some’’ ran past her in their eagerness to get a button and,
as was able to name five specific persons who did so, I find
that Fly did engage in surveillance designed to determine the
union or antiunion sympathies of employees, an action which
violates Section 8(a)(1) of the Act, as alleged. Otherwise, for
the reasons noted above, I am not persuaded by credible tes-
timony that Fly engaged in any violative interrogation of em-
ployees (including Mosby, who again may have volunteered
information), and I therefore find no additional violations of
the Act in this respect as alleged in paragraph 9(b) and (d)
of the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening that its Milan facility would close if the
Union came in, by threatening that an employee should wear
a vote no button if she wanted a job, by interrogating em-
ployees concerning their union sympathies and activities and
those of other employees, by creating the impression that
union activities are under surveillance, and by soliciting an
employee to attend union meetings and to obtain information
for management, during the course of a union campaign, Re-
spondent has interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed in Section
7 of the Act and thereby has engaged in unfair labor prac-
tices in violation of Section 8(a)(1) of the Act.
4. By discharging employee Marion Bledsoe on April 30,
1990, Respondent engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (3) of the Act.
5. The Respondent otherwise is not shown to have en-
gaged in conduct violative of the Act as alleged in the com-
plaint.
329DOUGLAS & LOMASON CO.
2 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
4 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that it be ordered to cease and
desist therefrom and to take the affirmative action described
below which is designed to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate Marion
Bledsoe to his former job or a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges previously enjoyed, and make him whole for any
loss of earnings he may have suffered because of the dis-
crimination practiced against him by payment to him a sum
of money equal to that which he normally would have earned
from the date of the discrimination to the date of reinstate-
ment, in accordance with the method set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puter in New Horizons for the Retarded, 283 NLRB 1173
(1987),2 and that Respondent expunge from its files any ref-
erence to his discharge and notify him in writing that this has
been done and that evidence of the unlawful discharge will
not be used as a basis for future personnel action against
him.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Douglas & Lomason Company, Milan,
Tennessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed them by Section 7
of the Act by interrogating any employee about union sup-
port or union activities, by threatening plant closure, by
threatening employees with loss of their job if they didn’t
wear antiunion buttons, by soliciting an employee to obtain
information for it about union meetings, and by creating the
impression that union activities are under surveillance.
(b) Discharging any employee for engaging in activities
protected by Section 7 of the Act.
2. Take the following affirmative action neccessary to ef-
fectuate the policies of the Act.
(a) Offer Marion Bledsoe immediate and full reinstatement
and make him whole for any losses he incurred as a result
of the discrimination against him in the manner specified in
the remedy section and expunge from its files any reference
to his discharge and notify him in writing that this has been
done and that evidence of the unlawful discharge will not be
used as a basis for future personnel actions against him.
(b) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(c) Post at its Milan, Tennessee facility copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the notice, on
forms provided by the Regional director for Region 26, after
being signed by Respondent’s authorized representative, shall
be posted by Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed by Section
7 of the Act by interrogating any employee about union sup-
port or union activities, by threatening plant closure, by
threatening loss of employment for not wearing antiunion
buttons, by soliciting employees to obtain information for us
about union meetings, or by create the impression that union
activities are under surveillance.
WE WILL NOT discharge any employee for engaging in ac-
tivities protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you inthe exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL offer Marion Bledsoe immediate and full rein-
statement and make him whole for any losses he incurred as
a result of the discrimination against him in the manner spec-
ified in the remedy section of the administrative law judge’s
decision.
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL expunge from our files any reference to Marion
Bledsoe’s unlawful discharge and notify him in writing that
this has been done and that evidence of the unlawful dis-
charge will not be used as a basis for future personnel ac-
tions against him.
DOUGLAS & LOMASON COMPANY