Noland Co.

National Labor Relations Board - Board Decisions

Apr 19, 1984

269 N.L.R.B. 1082 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Noland CompanyI and Sharon S. Wilkins. Case 11-
CA-10194
19 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 16 November 1982 Administrative Law
Judge Leonard N. Cohen issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed cross-ex-
ceptions and a brief in support of its cross-excep-
tions and in opposition to the exceptions of the
General Counsel.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Noland
Company, Spartanburg, South Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I The record indicates that Noland Company is the correct spelling of
the Respondent, not Nolan Company as set forth in the judge's decision.
we therefore correct this inadvertent error.
s The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
s Although Chairman Dotson adopts the conclusions of the judge, he
does not necessarily agree with the rationale of the decision nor the
judge's discussion of concerted activity.
Member Hunter considers it unnecessary to determine whether the
Charging Party engaged in protected concerted activity. Even assuming
she did, he would not find her discharge unlawful because, in his view,
the evidence shows she was discharged for deficiencies in her work per-
formance.
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge. This
matter was tried before me in Spartanburg, South Caroli-
na, on July 6, 1982. On January 5, 1982, the Acting Re-
gional Director for Region 11 of the National Labor Re-
lations Board issued a complaint and notice of hearing
based on unfair labor practice charges filed on Novem-
ber 16, 1981.1 The complaint alleges that Nolan Compa-
ny, herein called Respondent, violated Section 8(a)(1) of
the Act when it discharged its employee Sharon S. Wil-
kins on or about October 29. Respondent filed a timely
answer in which it denies the commission of any unfair
labor practice.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs.
On the entire record and from my observation of the
witnesses and after due consideration of the briefs of
both the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Virginia corporation with a facility lo-
cated in Spartanburg, South Carolina, where it is en-
gaged in the business of wholesale distribution of plumb-
ing, electrical, air conditioning, and industrial supplies.
During the past 12 months Respondent, in the course
and conduct of its business operations, purchased and re-
ceived at its Spartanburg, South Carolina facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of South Carolina.
Accordingly, the complaint alleges, Respondent admits,
and I find and conclude that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts2
From October 1978 until her discharge on October 29,
1981, Sharon Wilkins was employed by Respondent as a
cashier at its Spartanburg, South Carolina wholesale fa-
cility. At all times Wilkins worked under the supervision
of Gordon Cockill, the credit manager, who in turn re-
ported directly to Henry Spratlin, the branch manager.
Wilkins' duties included posting customers' accounts,
making daily bank deposits, maintaining custody and
control of the cash boxes, and receipting c.o.d. sales, of
which much will be said later. Additionally, Wilkins, on
occasion, substituted for the switchboard operator. In
performing her primary functions as the cashier for the
facility, Wilkins physically worked in the same office or
room with Cockill.
Two separate incidents occurred during September
and October 1981, which played significant parts in the
events leading up to Wilkins' discharge. 3 The first of
these was Wilkins' suspected involvement with postresig-
nation letter submitted to the company headquarters by a
former employee. The second matter was the September-
October yearly internal audit of the Spartanburg branch
which showed certain deficiencies in the cashier's oper-
i Unless otherwise indicated all dates hereinafter are 1981.
Unless otherwise specified the material facts are not in dispute.
s This is not to imply that no other issue, such as Wilkins' attendance,
was not also involved. Those other matters will be discussed infra.
269 NLRB No. 187
1082
NOLAND CO.
ation. Counsels' contentions aside, I find that these two
incidents or occurrences are not unrelated and they
cannot, therefore, be treated without some reference to
the other.
Turning first to the matter of the letter, the facts sur-
rounding its preparation, sending, and promulgation at
the branch are not in dispute. In mid-August Ann Brig-
man, a clerical employee in the date processing depart-
ment and Wilkins' best friend, voluntarily resigned. She
subsequently received a questionnaire from corporate
headquarters in Newport News, Virginia, requesting her
views on certain aspects of the job. In response to the
questionnaire Brigman prepared a lengthy handwritten
letter. On either September 1 or 2 Brigman lunched with
Wilkins and Barry Lowe, the branch inventory manager.
During the course of the lunch Brigman showed them
the letter she had prepared and asked for their reactions.
After reading the letter both Wilkins and Lowe indicated
that it looked all right to them. Upon her return to the
branch, Wilkins told several of her coworkers about the
letter Brigman had prepared. Later that same day Brig-
man typed and sent the letter to Newport News. A few
days later Brigman gave Wilkins a copy of the letter
which Wilkins subsequently showed at work to both
Cockill and several of the branch employees.
In view of the significance of this 2-1/2-page single-
spaced letter, it is necessary to quote at some length
from it.
I left because of the branch manager Henry
Spratlin .... He is not consistent in his dealings
with employees, letting some get by with things
that others would be reprimanded for. He shows fa-
voritism toward his two daughters, who most em-
ployees felt shouldn't be working there in the first
place ....
His younger daughter, Robin does the garden
maintenance, i.e., cuts the grass and picks up trash.
She makes $4.00 an hour. His oldest daughter Leslie
is filling in on the switchboard while Sheila, our
regular receptionist, is on maternity leave. Leslie
also makes $4.00 as well as Shelia. However, Leslie
doesn't type so I or the cashier has to do all the
typing as well as our other duties. Leslie is making
as much as the regular receiptionist and is doing less
work. And it isn't like at all except of course by
Leslie.
On top of this, Beth Hawkins who formerly was
batch comptroller and who is now in order control
since my leaving is only making $4.10 and she has
been with the company over 8 yearsl . . . Several
of our warehouse workers only make around $4.00,
and one truck driver is only making $3.90. This par-
ticular driver has been to Spratlin and asked for a
raise, which he is due because he has been with the
company for over a year and Spratlin said he
couldn't pay him any more and if he didn't like it
he could find himself another job. This is the atti-
tude that your employees are faced with in the Spar-
tanburg branch. There is more.
One of the inside salesmen was going to resign a
few months back and was given a large enough
raise to keep him on. He did wonder why he was
worth so much more only after he decided to leave.
A counter salesman also was going to leave and
was given a raise and taken off wage and hour and
placed on salary. Even I was informed of a coming
raise when I said I was leaving.
. . . I wanted someone to know why I really quit
my job. Top management may think that Henry
Spratlin is doing a terrific job and maybe he is. So
be it. But he is doing nothing for morale in Spartan-
burg. In my two years at Nolan I didn't hear one
person say they respected him as person or as a
manager ....
I do not think Henry Spratlin is a fair man to
work for. He allow some employees to do as they
please while others are reprimanded for doing the
same thing. It is not my intention to try to damage
Spratlin's career and I certainly couldn't do any
more damage to his reputation, not with the Spar-
tanburg employees anyway .... I do feel that
Spratlin could take better care of his employees if
he really wanted to. He gives me the impression
that all he is concerned with is good ole' number
one.
Question 19 asked if satisfactory arrangements
could have been made would I have stayed. Yes,
but only if there had been a change in Spratlin or a
change in branch managers altogether.
A few days after the letter was received at corporate
headquarters, Donald Dickinson, vice president of per-
sonnel, paid Spratlin a visit. According to both Spratlin
and Dickinson the purpose of the visit or investigation
was to determine why a former employee would write
such a letter.4 During the course of his stay in Spartan-
burg, Dickinson stated that he determined that wage in-
formation on Spratlin's daughters was correct but that
the wage information on other employees was essentially
incorrect.
Within a week or so of Dickinson's visit, Spratlin
spoke to Cockill about the letter. Cockill testified that
Spratlin asked him if he knew about the letter. When
Cockill answered that he did, Spratlin commented that
he was upset because of it and that it was a "personal
matter." Spratlin further said that he did not understand
why "they" would do that, that the information was er-
roneous and it hurt his feelings as much as anything. To-
wards the end of the conversation, Spratlin asked Cockill
if Wilkins had supplied Brigman with the information on
his daughters' wages. 5 Cockill answered that it looked
like it since Spratlin's daughters were paid out of the
local manager's fund which was handled by the credit
department. s Spratlin agreed with Cockill's version but
* Dickinson testified that Brigran's letter was the first of its kind that
Respondent had ever received.
' Spratlin testified that he had heard through rumor that Wilkins was
showing the letter to employees.
' Both Wilkins and Brigman testified that Brigman knew the wage
paid to Robin Spratlin and correctly assumed that Leslie Spratlin, the
other daughter, received the same wage rate. With regard to Robin,
Brigman testified that one day while Cockill and Wilkins were both out
Continued
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
added that during this conversation he also stated that he
was disappointed that the letter had been written and
that he took being called a "jerk" personally. Spratlin
further testified that he also told Cockill that he was just
going to let it go by the boards as one of those little
thorns in the side of management that eventually passed.
According to Cockill at some point during early Sep-
tember Cockill told Wilkins that the letter was "not
good" and that she could "get into trouble" over it.
Sometime later in September Spratlin spoke to Wilkins
herself about the letter. According to Wilkins' account,
Spratlin called her into his office and asked if she knew
about the letter. She answered that she did. Spratlin
asked if she thought he was paying his children too
much money. Wilkins merely answered that she did not
think it was any of her business.
In Spratlin's version, after he first asked her if she
knew of the letter, Wilkins stated that she had but that
she did not understand why the letter was written since
Brigman was happy with the Company at the time she
left. Spratlin then told Wilkins that the letter did not
mean that much to him, because it was full of inaccura-
cies. While Spratlin testified that he then and now be-
lieved that Wilkins had passed on the information about
his daughters' wages to Brigman he, nonetheless, told
Wilkins during this conversation that he did not believe
she had any role in the writing of the letter.
In attempting to explain this apparent inconsistency,
Spratlin's testimony becomes utterly and thoroughly con-
fused. Spratlin first noted that, because of Wilkins' posi-
tion in the credit department, Wilkins had special access
to the information regarding his daughters' wages. Yet,
just four pages later in the transcript, Spratlin volun-
teered that he was at all times aware that Brigman also
had access to that same information. Additionally, Sprat-
lin testified that, some months before, Wilkins had ap-
proached him and told him that she felt that his daugh-
ters needed an increase in pay since they were working
too hard. While still maintaining that he believed that
Wilkins had divulged or passed on the information,
Spratlin, in nearly the same breath, also indicated that,
since he had given his daughters a raise on Wilkins'
prompting, he did not feel that she would have then di-
vulged information. Spratlin still further complicates the
matter by testifying just a few moments later that the
raises his daughters subsequently received were not the
result of Wilkins' suggestion.
This recitation takes us chronologically on this issue
up to the day before her discharge. Now, it is time to
turn on the second main issue; the audit.
In late September Douglas Curtis and J. T. Meyer, in-
ternal auditors employed by Respondent at its corporate
headquarters, arrived unannounced at the Spartanburg
Robin Spratlin, after finishing mowing the lawn, handed her a note to be
given to Cockill which read she was owed $8 for 2 hours' work. Spratlin
himself testified that Brigman on at least one occasion paid his daughters'
wages and, therefore, was privy to that information.
With the exception of Spratlin's daughters, all the other employees
were paid directly from the payroll department at corporate headquar-
ters. Therefore, neither Wilkins nor Brigman was, by virtue of their posi-
tion in the Company, privy to the information regarding the wages of
other employees.
branch to conduct a yearly full audit on the branch's op-
erations. These branch audits take approximately 2 weeks
to complete and involve a review of the branch's cash
flow, bank accounts, shipping and receiving procedures,
and security. This audit was to cover the period of Octo-
ber 1980 through September 1981.
Prior to performing each yearly the auditors review
the past two audit reports to determine if any problems
uncovered in previous audits had been corrected. In this
case Curtis and Meyer reviewed an audit report dated
February 1980, covering an audit that was performed
during November and December 1979 and an audit
report dated late January 1981 covering an audit of Oc-
tober 1980.7 The two audit reports reviewed by Curtis
and Meyer covered virtually the entire time Wilkins had
been employed by Respondent.
For an understanding of the comments contained in
the three audit reports relating to the cashier's job, it is
necessary to explain the method by which Respondent
handles sales. Basically, there are two types of sales, cash
and c.o.d. On cash sales, a customer will buy a nonserial-
numbered or warrantied item from one of the counter
salesmen who will receive the cash, write a receipt for
the customer, and place the cash and a copy of the re-
ceipt in his own cash drawer or cash box which he main-
tains. At the end of the day the salesman turns in the
cash box to the cashier for a deposit. The c.o.d. sales"
involve a customer making a purchase of an item which
has a serial number and/or carries a warranty.9 In this
case the counter salesman writes up the sale on a ship-
ping form and takes the cash or check to the cashier.
According to the procedures outlined in the cashier's
manual, the cashier should then receive the payment and
write a receipt from the receipt book acknowledging
payment. There are four copies of the receipt; one for
the salesman, one for the customer, one for the accounts
receivable cash box maintained by the cashier, and one
to remain attached in the receipt book itself.
The February 1980 audit report indicates that the
cashier had several deficiencies in the area of cash re-
ceipts which were caused by her not making reference to
the cashier's manual and an attempt on her part to save
time by taking shortcuts. Specifically, the report criti-
cizes the cashier for not writing a cash receipt for all
cash received. 1 0
7 Although it may take a week to several months for the auditors to
prepare the detailed written reports of the audit, the branch manager, at
the very least, is verbally informed by the auditors at the completion of
the audit of the general results.
s Both cash sales and c.o.d. sales may actually involve the payment by
either cash or check and in both cases the item sold may be picked up by
the customer at the time of purchase.
a The difference in procedure is somehow required by the need for Re-
spondent to find the documents necessary for future warranty-related
problems.
10 Curtis testified that the purpose of requiring written receipts by the
cashier on c.o.d. sales is to provide a means to trace or audit each sale.
Curtis stated that in situations where the money is missing for a sale in
which a customer can prove he paid, in the absence of a receipt from a
cashier, the Company has no way to determine whether the counterman,
the cashier, or someone else has the money. Curtis further stated that
having the cashier simply stamp the c.o.d. shipping document "paid"
does not suffice since it does not protect the counterman.
Continued
1084
NOLAND CO.
Wilkins testified that during the November 1979
audit" I an auditor was standing by her desk when one of
the counter salesmen came up and threw a cash payment
and shipping document on her desk, and simply turned
and left immediately. Wilkins turned to the auditor and
pointed out the problem she had with the salesmen not
waiting for the receipts. When the auditor acknowledged
the problem, Wilkins asked why she could not simply
stamp the shipping document "paid." According to Wil-
kins, the unidentified auditor indicated that he would
check on it but that he thought it would cover her.
Wilkins' testimony with regard to her knowledge of
the procedures regarding the cash receipts as set forth in
the cashier's manual is confusing at best. Initially, Wil-
kins testified that she never read that portion of the cash-
ier's manual relating to the writing of cash receipts for
c.o.d. sales and that she was unaware that the procedures
in the manual required her to give a written receipt
when she received cash. Later in her testimony Wilkins
conceded that she did in fact know that the manual re-
quired the preparation of written receipts for c.o.d. sales.
Wilkins testified that neither Cockill nor Spratlin spoke
to her about the need to write cash receipts as a result of
the February 1980 audit report.
Cockill testified that during the 1979 audit he personal-
ly observed the incident when the counter salesman, in
the presence of auditor Ron Binger,'2 threw money and
documents on Wilkins' desk and left immediately without
waiting for a receipt. According to Cockill's recollec-
tion, Binger, while acknowledging Wilkins' problem, told
her that she nonetheless had to write written receipts.
Cockill further testified that after this audit report
Spratlin discussed the problem with him and that he sub-
sequently talked to Wilkins about it. Cockill testified that
he told Wilkins that they had to follow the company
procedure in writing cash receipts. Wilkins responded
that she would do it, although she did not feel that it
was that important.
In his testimony Cockill admitted that he did not un-
derstand until the next audit, one year later, the impor-
tance of writing cash receipts. In fact, it was only after
the January 1981 audit report that Cockill himself started
writing cash receipts for c.o.d. sales that he received
while Wilkins was out of the office. 3
On September 25, 1979, before the first audit was con-
ducted, Wilkins was given an appraisal signed by both
Cockill and Spratlin which indicated that she was doing
a "very good" job. In April 1980 following the first
audit report, her appraisal signed by Spratlin only
showed that her performance had dropped to a "satisfac-
In this same vein, Dickinson observed that it has been his experience
that unless people dealing with the money follow the proper procedure
theft almost invariably occurs either on the part of the person not follow-
ing the procedure or on the part of someone who is aware that the pro-
cedures are not being followed and takes advantage of the security gap
that was thereby created.
' Wilkins in her testimony incorrectly refers to the first two audits by
the date the reports issued rather than the date the audits took place.
Is The audit report indicates that an R. K. Binger was one of the four
auditors conducting that review.
Is Cockill did not explain why he waited until January 1981 to start
writing his own receipts if a year earlier he had instructed Wilkins to do
so.
tory" level. In late November 1980, she was again ap-
praised. This took place after the second audit had been
completed but prior to any written report being issued.
Again, Spratlin appraised her performance as "satisfac-
tory."
In late January 1981, Ron Binger issued his audit
report covering the period of November 1979 to October
1980. In his report Binger indicated a serious problem
still existed with the failure to write cash receipts for
cash money received. Specifically, the report indicated
that in the 4-week test period there were 41 entries total-
ing over $3,200 for which cash receipts had not been
written, and in a randum selection over the year's time,
there were 153 cash entries totaling almost S22,000 for
which cash reeeipts had not been written. Binger's report
further recites that both Cockill and Wilkins indicated to
him that the failure to write receipts was because sales-
men would not wait for the receipts to be written. 4
Wilkins, in a rather confused account, testified that
subsequent to this report being issued Cockill ap-
proached her and told her that they had again been writ-
ten up for failing to write cash receipts. Wilkins an-
swered that she wished the Company would make up its
mind since the year before she had been told that she
could simply stamp documents as "paid." Wilkins further
testified that Cockill simply responded that if that was
what the auditor said, to go ahead and stamp the docu-
ments.
Both Spratlin and Cockill testified that, subsequent to
the issuance of the audit report of January 1981, Spratlin
discussed with Cockill the possibility that Wilkins should
be let go for her failure to correct the problem of writ-
ing cash receipts. 5 Cockill argued to Spratlin that in all
other respects Wilkins was a good cashier and he be-
lieved that with proper counseling they could overcome
her problem. Spratlin acceded to Cockill's argument and
no action was taken against Wilkins at that time. In al-
lowing Cockill to convince him to keep Wilkins on,
Spratlin readily conceded that in all other respects he
considered Wilkins to be a dependable employee when at
work and that she was capable of accepting responsibil-
ity and taking the initiative.
Cockill testified that after his discussions with Spratlin,
he once again spoke to Wilkins about the need for her to
write cash receipts. He testified that in his mind there
was no question at least as of this time, the first quarter
of 1981, that Wilkins knew cash receipts had to be writ-
ten.
In this regard, Cockill, following the second audit, ob-
tained his own receipt book and commenced the writing
of cash receipts on c.o.d. sales on those occasions when
Wilkins was not in the office. As will be noted below,
Wilkins, during the remainder of 1981 up until the last
14 Binger did not testify. His statement in the report regarding the ex-
planation offered by Cockill and Wilkins sounds remarkably like their tes-
timony regarding the previous year's audit. This apparent conflict was
not explored.
"s Spratlin, at this time, even consulted with Dickinson about the situa-
tion. Dickinson, in an agreement with Spratlin, recommended her imme-
diate discharge.
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
audit in late September nonetheless, continued her prior
practice of not writing receipt in most cases. 16
In late September Curtis and Meyer commenced the
final audit. At the completion thereof around October 10
to 12, Curtis met with Spratlin and informed him of the
results. Curtis told Spratlin that there were several seri-
ous problems with the cashier's function. Among these
problems was his finding that the cashier had not been
writing cash receipts in the overwhelming percentage of
the cases in which receipts were required. The total
amount of the missing receipts for c.o.d. purchases was
in excess of $3,300. Curtis further stated that in the one
case in which the cashier had written a receipt, the
money shown on the receipt, $91 been credited.' 7 Addi-
tionally, Curtis noted two separate incidents where he
found that the cashier had not secured the accounts re-
ceivable and manager's account cash boxes. In one in-
stance, Curtis stated that he visited the credit office one
day when no one was present and he found both cash
boxes and their keys in the unlocked cashier's desk. On
the second occasion Curtis again entered an empty credit
office. On this occasion the cashier had already left for
the day, and Curtis observed that both cash boxes had
been left unattended on Wilkins' desk.18
On October 13, Cockill prepared another appraisal
form on Wilkins.19 For the first time Wilkins' perform-
ance was no longer rated as satisfactory. Cockill checked
the box that indicated that Wilkins' present performance
was "not satisfactory." However, Cockill further indicat-
ed that he felt that her performance could be corrected
within the 3 months by counseling and training. In the
comment section Cockill stated:
1. Sharon misses a lot of work because of person-
al reasons, sickness,2 0 family situations and asks to
leave early in the evening. She usually works
is While the matter was not pursued or clarified at trial, it is quite puz-
zling that Cockill, at no time during the next 6 months, apparently ob-
served that Wilkins was not writing cash receipts for the many c.o.d.
sales reported to her each day. This is especially so in view of the close
proximity of their desks.
1' At some point during or shortly after the audit was conducted, Wil-
kins was informed of the $91 shortage and she voluntarily agreed to
make it up. As of the time of her discharge, she had paid back approxi-
mately half of the missing money. There is no claim whatsoever that
there was any dishonesty in the shortage on the part of Wilkins.
:1 With regard to the latter incident, Cockill, in excusing Wilkins for
the day, specifically assumed responsibility for the custody of the cash
boxes.
With regard to the first incident, Wilkins, at the time Curtis paid his
visit to the credit office, was substituting for the switchboard operator in
another part of the facility. Wilkins stated that at the time she had never
been told that she was suppose to keep the keys to the cash boxes with
her.
It does not appear that Spratlin was aware of the circumstances de-
scribed in the preceding paragraphs at the time he made his decision to
discharge Wilkins.
'1 Although it is not entirely clear it would appear that Wilkins was
given an appraisal each year on or near her anniversary date.
a0 The record indicates that, during calendar year 1981, Wilkins was
off work for approximately 133 hours for excused sick leave. In addition,
during, July she complained of severe migraine headaches and was given
2 weeks' leave without pay by Spratlin.
through her lunch hour when she does this howev-
er.2 1
2. She spends too much time on the phone for
personal reasons. 2 2
3. She tries to work independently of Nolan's
policies.
I feel however, that with close supervision and
counseling the above mentioned discrepancies may
be eliminated. 23
After receiving Cockill's October 13 appraisal of Wil-
kins, Spratlin testified that he made the decision to termi-
nate her.24 Spratlin called Dickinson and asked for and
was granted the necessary permission.2 5
Spratlin then revised the appraisal and on the com-
ment section wrote:
Wilkins has continued work against the system.
The Spartanburg branch was written up from a due
to her failure to write receipts for C.O.D. cash re-
ceived, on the last four audits, November 1978, No-
vember 1979, October 1980, and September 1981.
She has been counseled ont [sic] this short coming.
She has had considerable time off for illness and
personal problems. She was granted a two week
leave of absence in July of this year of 1981, to get
her personal problems corrected because they were
interrupting with the performance of her duties at
Nolan Company. This did not help. She continues
to receive phone calls that upset her and the Credit
Department. She has passed on confidential informa-
tion to other employees which causes a decrease in
moral [sic]. She will be terminated. 2 6 [Emphasis
added.]
Spratlin testified that, since Wilkins would be working
on several reports during the end of October, he decided
to wait until after the first of November to effectuate her
discharge.
2" Wilkins' final responsibility each day was to make the bank deposits.
According to Cockill, Wilkins would frequently ask to leave one-half
hour early in order to make the stop at the bank.
2" The record is totally silent with regard to her telephone usage.
as Point three refers to her failure to write cash receipts. Both Wilkins
and Cockill agree that following this final audit Wilkins was told that she
must write receipts on all cash received and that, for the final several
weeks of her employment, she followed this practice.
24 Spratlin testified that, about the same time, he was told by Neal
Nelson, Cockill's credit assistant in the Charlotte facility, that at some
time during the summer Nelson had called Wilkins to give her a neces-
sary financial report. According to Nelson, Wilkins told him that she
"didn't have time for all that bulls-t." Nelson did not testify. Spratlin
testified that by the time he heard this report he had already made up his
mind to discharge her.
" Dickinson testified that when asked for permission he responded,
"It's about time. The girl's been written up for three audit now, and just
had a horrible attendance record." Dickinson further testified that, at the
time Wilkins was discharged, he was not aware that she may have had
any connection with Brigman's letter.
26 Although the record is unclear it appears that Cockill and Spratlin
discussed Wilkins' future about this time. Cockill at that time, as well as
at a later point, argued that Wilkins could be "saved" with counseling.
Spratlin apparently did not tell Cockill of the final decision since Cockill,
by his actions on October 28 and 29, seemed genuinely taken by surprise
when told of Wilkins' discharge.
1086
NOLAND CO.
On October 28 Wilkins and Cockill had a conversation
which indirectly led to her being discharge on the fol-
lowing day. According to Wilkins' version, she informed
Cockill that she felt there was something wrong and
asked him if her job was in jeopardy. Cockill answered
that it was that he thought the Brigman letter had some-
thing to do with it. Cockill further stated that Spratlin
thought that she was involved in giving the wage infor-
mation that was cited in Brigman's letter.
In Cockill's version of the same conversation he dis-
cussed with Wilkins the problems that she was having
with cash receipts. He also discussed several of the other
items that were mentioned in Curtis' audit and said that
she had a serious problem. At the time of this conversa-
tion Cockill testified that he was unaware that Spratlin
had already determined that she was to be discharged.
Therefore, he could not and did not tell her that her job
was in jeopardy. Cockill categorically denied telling Wil-
kins during this conversation or at any other time that
Spratlin thought that she had released confidential infor-
mation or that he thought the reason she would be dis-
charged was because of the Brigman letter.
On the following day, October 29,27 Wilkins went to
Spratlin's office to discuss a problem she was having
with the budget. After that matter had been disposed of
the conversation turned to her future. Wilkins told Sprat-
lin that she felt her job was in jeopardy since she had
heard through the grapevine that she was going to be
fired. Spratlin answered that there had been a problem
with the audit, but that he was not prepared to talk to
her about it at that time. Wilkins said she did not feel
that it was fair to keep her hanging on like that and she
wanted an answer. Spratlin answered that he did not
know what the outcome would be, that he was waiting
on word from corporate headquarters on whether or not
to terminate her, but that the audit report did show seri-
ous problems with her not writing receipts for the c.o.d.
money. Wilkins told Spratlin that she thought she was
going to be terminated because of the Brigman letter.
Spratlin answered that that was not correct, that the
letter did not mean "that much to him." He admitted to
her that it was irritating but noted that that had been
several weeks before. Spratlin added that he did not ap-
preciate her showing the letter to other employees, but
he considered it a minor problem what was irritating but
forgotten. Wilkins persisted in insisting that she thought
she was going to be terminated because of the letter. At
that point Spratlin responded that it was apparent that
they could no longer work together effectively as a team
and that she should seek employment elsewhere.2 8 By
J" Wilkins, Spratlin, and Cockill all testified to a series of conversa-
tions between and among themselves and/or Richard McRee, corporate
vice president of credit in Newport News. Each of the three principal's
testimony regarding the proper sequence of these conversations is con-
fused and at various times inconsistent. The recitation set forth above is
based on all of their testimony and appears to be in the most logical se-
quence. Where no significant differences in their versions exist, the ac-
count is based on a composite of their testimony. Where serious differ-
ence or conflicts do occur, they will be noted. McRee, unfortunately, did
not testify.
a8 In Wilkins' brief account there was no mention whatsoever of the
Brigman letter or Spratlin's reaction to her accusations.
way of an afterthought, Spratlin also testified that he
mentioned her excessive absenteeism as a cause of her
termination.
Wilkins immediately went back to the credit office and
informed Cockill of Spratlin's decision. Cockill, in her
presence, then called McRee on the telephone. Accord-
ing to Wilkins' account, Cockill told McRee that he did
not think it was fair for the Company to fire her and that
he thought that the letter Brigman had written was the
main reason Wilkins was being discharged. Cockill then
stated to McRee that he knew Wilkins had not been
writing receipts but that she was under the mistaken im-
pression that she could simply stamp the documents as
"paid" and that he, Cockill, was sure that they could
work out the problem in the future.
According to Cockill's version, he merely explained to
McRee the situation generally and expressed the opinion
that the reasons were not sufficient for Wilkins to be re-
leased. McRee answered that now that he had heard
Cockill's side he was going to speak directly to Spratlin.
Cockill categorically denied making any reference in this
phone conversation or any other phone conversation
with McRee to the Brigman letter. Subsequently, Sprat-
lin and Cockill had a conversation in which Cockill
argued that Wilkins' performance could be corrected
with counseling. Spratlin answered that it was at that
time too late, that the decision had already been made.29
Spratlin testified at some point after he discharged
Wilkins on October 29 he received a phone call from
McRee. McRee indicated to him that Cockill had called
him and was upset over the Wilkins' termination. Sprat-
lin testified that he explained to McRee the situation re-
garding the problem she was having with the audits.
This explanation seemed to satisfy McRee for either that
day or the next day McRee called Cockill back and in-
formed him that he was going along with Spratlin's deci-
sion because of the importance of the area in which Wil-
kins was deficient.
According to Wilkins, the final conversation she had
with Cockill occurred on November 16 the day she
came into the facility to pick up her letter of recommen-
dation signed by Spratlin. On this occasion, she asked
Cockill if he had heard anything else regarding her job
and that Cockill responded that he had talked to McRee
again and that McRee told Cockill that the main reason
for her discharge was the letter Brigman had written.
Cockill added that, according to McRee, that informa-
tion was between him, Cockill, and the gatepost.
Spratlin was questioned on cross-examination regard-
ing his October 13 written appraisal of Wilkins and the
termination report which both state, inter alia, that Wil-
kins "passed on confidential information to employees
which caused a decrease in moral [sic]." Spratlin's
answer, while simple, was not particularly satisfying.
Spratlin explained simply that he thought Wilkins had
passed the information about his daughter's wages on to
Brigman and that he, therefore, added the sentence
merely as an "afterthought." As previously noted, Sprat-
'g Cockill denied that Spratlin during this or any other conversation
indicated to him that one of the reasons for Wilkins' discharge was that
he believed she had given out wage information.
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lin also knew that Brigman was aware of the same wage
information by virtue of her having paid his daughters
directly on at least one earlier occasion.
On December 1 a hearing on an appeal by Wilkins to
an adverse determination by the South Carolina Employ-
ment Security Commission was conducted. Present at the
hearing were Wilkins, Spratlin, and Cockill. In an ex-
tremely informal proceeding, each party was requested
to give his or her position on the cause of Wilkins' dis-
charge. Spratlin testified that the reason she was dis-
charged was her failure to.comply with company poli-
cies as related to the writing of cash receipts and exces-
sive time off due to illness and personal reasons. Cockill,
in his testimony, also discussed the problems with the
custody with the cash boxes. Wilkins, in her sworn testi-
mony, informed the referee that she had been given per-
mission to merely stamp the documents as "paid." She
further explained that the cash box problems were not
her fault. Despite being given several opportunities to
mention any other factors that she believed may have
caused her discharge, Wilkins made no note whatsoever
about the Brigman letter. Perhaps even more significant-
ly Wilkins made no reference to Cockill's or McRee's al-
leged statements that Brigman's letter or Wilkins' alleged
giving of confidential information was the cause of her
discharge.
Finally, Respondent introduced evidence that several
cashiers at other facilities had been first counseled and
subsequently discharged for their failure to handle cash
transactions properly.
Conclusions
The threshold question presented here is whether the
actions engaged in by Wilkins prior to her discharge are
the type of activities which are protected by the Act.
In this regard Wilkins' conduct basically falls into two
separate categories: (1) discussions with employee Brig-
man regarding the wages of other employees, including
those of Spratlin's daughters and (2) Wilkins' involve-
ment in the preparation and circulation of Brigman's
letter. For, if it is concluded that Wilkins' conduct in
either regard is both protected and concerted, the com-
plaint allegation relating to her discharge must fall even
under the most favorable view of facts possible.
With regard to the first category, the record clearly
establishes exactly what Spratlin expected; that Wilkins
and Brigman, while the latter was still employed, did
indeed discuss the wages received by other employees,
including Spratlin's daughters. Wilkins credibly testified
that she and other employees also had similar discus-
sions. These took place in the context of the employees
airing their dissatisfaction with their own and others
working conditions. These discussions, which go to the
very heart of employees' traditional concerns, are the
type of preliminary discussions that frequently result in
organized activity or in the taking of positive steps to-
wards presenting demands. That they do not eventually
lead to such group action does not, somehow, subse-
quently render them unprotected.3 0
Respondent, however, argues that Wilkins' conduct in
disclosing confidential wage information to her fellow
employees so breached the trust placed in her that she
was disqualified from the protection of the Act. The dif-
ficulty with this argument is simply that it runs contrary
to Respondent's own admitted facts. In this regard,
Spratlin testified that he was aware for some time prior
to early September that Brigman, by virtue of her substi-
tuting for Wilkins, knew the wages that his daughters re-
ceived. Thus, Wilkins cannot be said to have passed on
to Brigman any wage information, confidential or other-
wise, regarding Spratlin's daughters. Accordingly, it is
concluded that Wilkins, in discussing the wages of other
employees with employee Brigman, was engaged in pro-
tected concerted activity within the meaning of the Act.
I next turn to the subject of Wilkins' involvement of
the preparation and circulation among the work force of
Brigman's letter. As a starting point I note that the
Board has consistently held that employee complaints
about their supervisor's treatment of them constitutes
protected concerted activity.31 This is so irrespective of
whether the protest takes the form of a direct confronta-
tion with management during meeting,32 a newsletter di-
rected to fellow employees, 33 or an anonymous letter
sent to the employer's corporate headquarters.3 4 Re-
spondent, nonetheless, contends that the letter is ren-
dered unprotected since it impugns the integrity of the
supervisor. I reject this contention. That the subject
matter of a complaint may be sharply critical of the per-
formance and the attitude of a supervisor does not
remove it from the protection of the Act. 35 The letter,
though controversial, was neither atypical of what one
might expect as an expression of employee discontent
nor so offensive as to render it unprotected.
Finally, Brigman's letter was not confined to a person-
al pique against Spratlin, but appeared to represent the
views of other employees regarding what they viewed as
his mistreatment of them. It in effect calls for an investi-
gation by Respondent of Spratlin's management. While it
is true that Brigman alone, apparently conceived and
prepared the document, it is equally clear that Wilkins,
in her luncheon meeting with Brigman on September 1
and by her subsequent action in showing the letter to her
coworkers, fully endorsed its content. In these circum-
stances this was sufficient to bring this form of protesta-
tion concerning conditions of employment within the
realm of concerted activity protected by Section 7 of the
Act.3 6
0o Jeannette Corp, 217 NLRB 653 (1975), enfd. 532 F.2d 916 (3d Cir.
1976). Mushroom Transportation Ca v. NLRB, 330 F.2d 683 (3d Cir.
1964), setting aside 142 NLRB 1150 (1963).
"1 Calvin D. Johnson Nursing Home, 261 NLRB 289 fn. 2 (1982).
' PacVflc Coast Meat Ca, 248 NLRB 1376 (1980).
'a Postal Service, 241 NLRB 389 (1979).
"' Chrysler Credit Corp., 241 NLRB 1079 (1979).
3s Avalon-Carver Community Center, 255 NLRB 1064, 1070 (1981).
6' See Hitchiner Mfg. Ca,. 238 NLRB 1253, 1257 (1978); Diagnostic
Center Hospital Corp., 228 NLRB 1215, 1217 (1977).
1088
NOLAND CO.
The Board in Wright Line, 241 NLRB 1083 (1980), set
forth the applicable test in all disciplinary cases alleging
violations of Section 8(a)(l) which turned upon the em-
ployer's motivation. First, the General Counsel is re-
quired to make out a prima facie showing sufficient to
support the inference that the protected conduct was a
"motivating factor" in the employer's decision. Once that
is established, the burden then shifts to the employer to
demonstrate that the same actions would have taken
place even in the absence of protected conduct.
In finding that the General Counsel has met its initial
burden under Wright Line, one need look no further than
Spratlin's own words to determine that Wilkins' involve-
ment with the Brigman letter was a "motivating factor"
in her discharge. In separate conversations with both
Cockill and Wilkins during September and October,
Spratlin indicated just how deeply he resented the let-
ter's personal attack on his integrity. While he was ap-
parently offended to some extent by what he viewed as
misstatements of fact concerning other employees'
wages, his real resentment was directed towards the let-
ter's attack on how he treated his daughters. For this,
Spratlin clearly, although perhaps mistakenly, laid the
blame at least partially on Wilkins. Spratlin's October 13
statement in Wilkins' appraisal that she "passed on confi-
dential information other employees which caused a de-
crease in moral [sic]" belies his later statements that by
mid-October, he had put behind him the accusations
raised in the letter. Further, the accusations raised in the
letter and the subsequent investigation by his immediate
superior Dickinson did not, as Spratlin clearly recog-
nized, enhance his standing with Respondent. Accord-
ingly, I find that the General Counsel has established its
prima facie case.
I now turn to the question of whether Respondent has
met its burden of demonstrating that it would have taken
the same disciplinary action against Wilkins even in the
absence of her protected concerted activities. In order to
resolve this ultimate question it is necessary to resolve
certain credibility conflicts in the testimony of Wilkins,
Cockill, and Spratlin.
Unfortunately, I was not impressed with either the de-
meanor or the content of the testimony of any of the
three key witnesses. As was set forth in great detail,
supra, each testified in an extremely confused and disor-
ganized fashion. Moreover, each contradicted their own
testimony on significant points. In all, each, at varying
times, testified in a manner more calculated to enhance
their positions in the instant litigation than in an attempt
to accurately relate exactly what transpired. I am con-
vinced that the truth of what really transpired lies some-
where between the versions proffered by each side.
Based on a careful review of the entire record, I am
unable to credit that portion of Wilkins' testimony in
which she stated that Cockill, on October 29 in her pres-
ence, phoned McRee and told him that he (Cockill)
thought the Brigman letter was the reason Wilkins was
being let go. Similarly, I do not credit Wilkins' testimony
that in mid-November Cockill told her that, according to
a subsequent phone conversation with McRee, he was in-
formed by McRee that Wilkins' involvement with the
letter was the reason for her discharge. Even though
Cockill was admittedly sympathetic to Wilkins I find it
somewhat improbable that he, in the circumstances here,
would have made such damaging admission to Wilkins
about his employer. While Cockill may well have be-
lieved that the letter played a part in Spratlin's decision,
I do not believe he would have been foolish enough to
repeat McRee's alleged admission which was given to
him in the strictest confidence. Even more persuasive
than mere reliance on the inherent probabilities is the
complete silence on the subject by Wilkins at the unem-
ployment compensation hearing. This hearing was held
just 2 weeks after her last and most damaging conversa-
tion with Cockill allegedly took place. Despite being
given an adequate opportunity to express her views there
Wilkins simply did not mention anything about the Brig-
man letter. Wilkins was not at all reluctant during that
hearing to defend herself against the charges of not writ-
ing receipts or leaving the cash boxes unattended. Yet
when asked by the referee if there were any other rea-
sons or causes for her discharge, she did not mention this
matter. I find it unbelievable that she would not have
raised these statements if they had in fact been made.
Therefore, in these circumstances, I credit Cockill's
denial over Wilkins' accusations.
That issue aside, I find that Respondent has presented
a convincing case that Wilkins' continued failure to write
cash receipts was such a serious breach of company
policy as to justify Spratlin's decision to discharge her.
The record evidence indicates that Wilkins, up to Janu-
ary 1981, may well have believed that by merely stamp-
ing the c.o.d. documents as paid relieved her of the re-
sponsibility of writing receipts. However, from the time
of the second audit report in January 1981 until the final
audit the credible evidence establishes that Wilkins could
no longer have reasonably held such a belief. In this
regard, I credit Cockill's testimony that early in 1981 he
was specifically instructed by Spratlin to have Wilkins
write receipts and that Cockill passed on this instruction
to Wilkins shortly thereafter. Two factors persuade me
to credit Cockill's account in this regard over Wilkins'.
First, about this same time Cockill himself started writ-
ing receipts for c.o.d. sales on those occasions when Wil-
kins was not in the office. Second, within 2 months of
the January 1981 audit report an additional appraisal was
given to Wilkins in which her job rating was lowered
from "very good" to merely "satisfactory." It is reasona-
ble to infer that this lower rating was done as a result of
the most recent audit report.
Despite receiving specific instructions that she should
write cash receipts Wilkins throughout the first 8 months
of 1981 continued in the overwhelming majority of the
cases to ignore the procedures outlined to her by Cockill
and as set forth in the cashier's manual. These continued
problems, as Spratlin himself recognized, reflected ad-
versely on his ability to manage the branch. Spratlin in
early 1981 had rejected Dickinson's advice and allowed
Cockill to talk him into retaining Wilkins. Despite this
extra 6 months, Wilkins' performance did not improve.
In addition to this serious problem, Respondent pre-
sented convincing evidence that her attendance record
during 1981 also justified Respondent's taking action
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against Wilkins. While Spratlin may not have mentioned
the excessive absenteeism to Wilkins during the October
29 conversation, it was no doubt a factor in his decision.
Although all her absences were excused, the time she
was off had a substantial adverse impact on the function
of the credit department. This is especially so since, on
those occasions when Wilkins was out on sick leave,
Cockill himself was forced for the most part to assume
her duties. Therefore, I find and conclude that Respond-
ent has established legitimate and substantial business
considerations to justify its actions in discharging Sharon
Wilkins. Accordingly, I recommend that the complaint
allegation relating to her discharge be dismissed.3 7
II. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and that it take cer-
tain remedial actions to effectuate the policies of the Act,
including posting of a remedial notice to employees in
compliance with its provisions.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in comoerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(l) of the Act by
threatening an employee with reprisals for engaging in
protected concerted activities.
3. Respondent did not violate Section 8(a)(1) of the
Act by discharging Sharon Wilkins.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On the foregoing findings of fact and conclusions of
law and on the entire record in this case, I issue the fol-
lowing recommended 3 8
ORDER
The Respondent, Nolan Company, Spartanburg, South
Carolina, its officers, agents, sucessors, and assigns, shall
1. Cease and desist from
aS In her posthearing brief the General Counsel moved to amend the
complaint to allege that Cockill's admitted statement to Wilkins in mid-
September to the effect that she "could get into trouble" for circulating
Brigman's letter to other employees (see above) constituted an unlawful
threat of reprisal in violation of Sec. 8(aX I). In view of my previous con-
clusions that Wilkins was engaged in protected concerted activity in cir-
culating the letter, I find that Cockill's statement does constitute an un-
lawful threat. This incident was fully litigated at hearing and is sufficient-
ly related to the subject matter of the complaint to justify a specific find-
ing of a violation of Sec. 8(aX)(). Alexander's Restaurant, 228 NLRB 165
(1977).
Is 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 objections to them shall be deemed waived for all pur-
poses.
(a) Threatening employees with reprisals if they en-
gaged in protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at its Spartanburg, South Carolina facility
copies of the attached notice marked "Appendix."3 9
Copies of the notice on forms provided by the Regional
Director for Region 11 after being duly signed by Re-
spondent's authorized representative shall be posted by
Respondent immediately upon receipt thereof and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
Sg 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which 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.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten our employees with reprisals
for engaging in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed you by Section 7 of the Act.
NOLAN COMPANY
1090