Tunica Mfg., Co.

National Labor Relations Board - Board Decisions

Jun 14, 1978

236 N.L.R.B. 907 (N.L.R.B. 1978)

TUNICA MANUFACTURING COMPANY
Tunica Manufacturing Company, Inc. and Local 19,
Distributive Workers of America-DWA. Cases
26-CA-6555, 26-CA-6572, and 26-CA-6611
June 14, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On February 7, 1978, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed an answering brief to
the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board delegated its authority
in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs.
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge, to
modify his remedy,3 and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Respondent and the General Counsel have excepted to certain credibili-
ty findings made by the Administrative Law Judge. It is the Board's estah-
lished policy not to overrule an Administrative Law Judge's resolutions with
respect to credibility unless the clear preponderance of all the relevant evi-
dence convinces us that the resolutions are incorrect. Standard Dry $ aill
Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 19511. We
have carefully examined the record and find no basis for reversing his find-
ings.
2 Our dissenting colleague catalogs Respondent's unfair labor practices as
found herein and urges them as proof of his contention that Respondent
further violated the Act by discharging employees Bradshaw, Watson, Brig-
ham, and Wheeler, who, as the Administrative Law Judge found, played but
a minor role in the Union's organizational campaign. The Administrative
Law Judge carefully weighed this factor before rejecting this allegation of
the complaint. While our dissenting colleague's argument has its attraction.
we must point out that his assertion is no substitute for evidence substanti-
ating the alleged violations. Although he refers to "new discharge stan-
dards," the record shows there was no "established rule" for discharging an
employee because of low production. The dissent suggests no persuasive
reason why Respondent would select these particular employees if its mo-
tive were discriminatory nor does he refer to any evidence showing that
employees who had not engaged in any protected activity were treated more
favorably. Moreover, our colleague's argument that a history of discharges
after Respondent's peak season does not justify discharges in March which
are usually made in January is undercut by the Administrative I aw Judge's
uncontested finding that in 1977 Respondent was coming off its peak pro-
duction period in March.
3 The Administrative Law Judge inadvertently specified interest to be
paid at 7 percent; however. interest will be calculated according to the
"adjusted prime rate" used by the U.S. Internal Revenue Service for interest
on tax payments. Florida Steel Corporation, 231 NL RB 651 (1977).
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Tunica Manufacturing
Company, Inc., Tunica, Mississippi, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
MEMBER JENKINS. dissenting in part:
I agree with my colleagues' adoption of the many
8(a)(1) violations and the 8(a)(3) and (1) violation
found by the Administrative Law Judge. I disagree,
however, with their adoption of his finding that the
discharges of employees Bradshaw, Watson, Brig-
ham, and Wheeler were not unlawfully motivated
and his dismissal of the 8(a)(3) and (1) allegations
pertaining to them.
The Union began its organizational campaign
among Respondent's employees on or about Febru-
ary 12, 1977.4 On February 28, it sent a letter to Re-
spondent which advised Respondent of its campaign
and listed the names of 16 employees who would be
active on behalf of the Union. Among those names
were employees Watson, Brigham, and Cooke, who
were subsequently discharged.5 Prior to this notifica-
tion, however, Respondent learned of the campaign
and, on February 23, began its attack against the
Union. The Administrative Law Judge found, and
we have affirmed, that, on that date, Respondent
Vice President Rubin, in two speeches to the assem-
bled employees, threatened to close the plant and
threatened the employees with the loss of jobs if they
selected the Union. told them that it would be futile
to select the Union as their bargaining representative,
and solicited the employees to withdraw their signed
authorization cards from the Union. Immediately
thereafter, Respondent promulgated a new no-solici-
tation rule for the purpose of defeating the Union's
attempt to organize the employees.
During the weeks following the February 23
speeches. Respondent continuously violated Section
8(a)(l) by interrogating employees, threatening them
with loss of employment, soliciting employees to
withdraw their union cards and to sign an antiunion
petition, creating the impression of surveillance, and
by other acts and conduct. It is in this context of
unlawful conduct by Respondent, intended to dis-
suade employees from supporting the Union, that the
March 9 and 10 discharges of Bradshaw, Watson,
Brigham, and Wheeler. which occurred in the midst
of so many unlawful acts, must be viewed. For the
reasons set forth below, I cannot agree with my col-
leagues' decision to affirm the dismissal of the com-
'All dates refer to those In 1977.
The Administratie Iass Judge found, and we have unanimously af-
firmed, that Cooke's discharge siolated Sec 8(a)(3) and ( ) of the Act
236 NLRB No. 105
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint with respect to these discharges.
First, all four discharged employees engaged in
union activity, and we have held for years that the
discharge of a union adherent because of his status
as such is unlawful, regardless of whether the em-
ployee is the primary or leading proponent of the
union. Second, Respondent knew that Brigham and
Watson supported the Union because their names
appeared on the February 28 letter listing "some" of
the Union's adherents. In the circumstances, it is rea-
sonable to infer that Respondent knew that Brad-
shaw and Wheeler were union supporters since both
were interrogated concerning their union member-
ship and desires and threatened with loss of employ-
mnent, and Respondent generally conducted a cam-
paign of interrogation and solicitation of signatures
on antiunion petitions with the obvious purpose of
finding out who supported the Union. In my opinion,
the fact that Respondent did not discharge all known
union supporters, or all of those listed in the Febru-
ary 28 letter, or all of the bindery department em-
ployees listed in the letter is irrelevant because,
again, we have never predicated an 8(a)(3) finding on
a preliminary finding that all known union support-
ers were discharged. Third, the magnitude and perva-
siveness of Respondent's 8(a)( 1) conduct proves that
it harbored union animus, which the Administrative
Law Judge did find. Fourth, the timing of the dis-
charges, occurring at the height of the Union's orga-
nizational campaign, is indicative of an unlawful mo-
tivation for the discharges.
Finally, it appears from Respondent's own testi-
mony that the union activity of its employees caused
Respondent to establish a new and different stan-
dard for the discharge of employees which resulted in
the discharges of Bradshaw, Watson, Brigham, and
Wheeler, and our decisions make clear that dis-
charges resulting from such unlawfully motivated
conduct constitute violations of Section 8(a)(3) and
(I) of the Act, regardless of whether the particular
discriminatee fits the new standard. Thus, prior to
the discharges, Respondent did not have an estab-
lished rule which determined at which point an em-
ployee's low production would not be tolerated fur-
ther. During this preunion period, various factors,
including the number of written warnings received
by the employee, the employee's attitude, and wheth-
er Respondent was operating in its peak season, were
considered.6 In March and after Respondent knew
of, and had begun its attack against, the Union's or-
ganizational campaign, the "guidelines"7 used for
the discharges at issue herein were established. In ex-
plaining the discharges of these four employees,
Plant Manager Potter stated that low production was
not the only reason for them. Potter also testified
that one of the factors considered in devising the
March "guidelines" was "morale," that the Union's
organizational drive had caused a change in morale,
and that "this was a factor in setting the curve [80
percent] where it was." 8 It is therefore obvious that
the Union's organizational drive and the resultant
change in the "morale" of its employees caused Re-
spondent to establish new discharge standards and to
effectuate those standards immediately as part of its
overall campaign intended to unlawfully quash the
employees' interest in the Union.9
Based on all of the above and noting particularly
Respondent's extensive 8(a)(1) conduct, its strong
union animus, the timing of the discharges, and that
it was the interest in the Union exhibited by Respon-
dent's employees which actually caused the dis-
charges, I would reverse the Administrative Law
Judge and find that the discharges of employees
Bradshaw, Watson, Brigham, and Wheeler violated
Section 8(a)(3) and (1) of the Act.
6 Respondent's "peak" season ends in January. In January 1976, for ex-
ample, nine employees were discharged for low production.
These were four warnings and production at a less-than-80 percent level
for the previous 5 weeks.
8 The Administrative Law Judge neglected to mention this testimony in
his Decision.
' In my opinion, the fact that there had been no discharges for low pro-
duction during the 1977 period immediately following Respondent's peak
season only accentuates the timing of the discharges in relation to the union
activit' and further supports the conclusion that they were unlawfully moti-
vated. It does not, as it appears to do for the Administrative Law Judge and
my colleagues. open the door in March for discharges that usually occur in
January.
DECISION
STATEMENT OF THE CASE
THOMAS E BRACKEN, Administrative Law Judge: This
case was heard at Tunica, Mississippi, on May 2, 3, and 4,
197 7.
l A charge was filed by Local 19, Distributive Work-
ers of America-DWA, herein the Union, on February 28
resulting in Case 26-CA-6555; a second charge was filed
by the Union on March 10, amended on March 15 and 21,
resulting in Case 26-CA-6572; a third charge was filed by
the Union on March 28 resulting in Case 26-CA-6611. The
complaint in Cases 26-CA-6555 and 26-CA-6572 issued
on April 1, and Case 26-CA-6611 was added thereto by an
amendment to the complaint on April 7.
Tunica Manufacturing Company, Inc., herein the Re-
spondent, filed an answer to the complaint on April 7, and
filed an answer to the amendment to complaint on April
II11, denying in both answers any material allegations of
violations of the National Labor Relations Act, as
amended, On April 29, Respondent filed an amended an-
swer setting forth that, on April 20, the Board had conduct-
m All dates are in 1977 unless otherwise stated.
908
TUNICA MANUFACTURING COMPANY
ed an election in which 206 votes were cast for, and 70
against, the Union, with no objections filed or contemplat-
ed as of the date of the amended answer.2
Respondent then went on to admit, in whole or in part,
allegations contained in 12 paragraphs or subparagraphs of
the complaint. During the course of the hearing, as Gener-
al Counsel put on his case, and over General Counsel's
objection, I allowed Respondent to amend its answer by
denying several of his prior admissions.
All cases were consolidated for a single hearing. The pri-
mary issues are whether the Company, Respondent, unlaw-
fully interrogated, coerced, and threatened employees dur-
ing the Union's organizing drive and discriminatorily
discharged five union supporters in violation of Section
8(a)(1) and (3) of the National Labor Relations Act.
Upon the entire record,3 including the stipulations of the
parties and my observation of the demeanor of the witness-
es, and after due consideration of the briefs filed by the
General Counsel and the Company, I make the following:
FINDINGS OF FACT
I JURISDICTION
The Company, a Mississippi corporation, is engaged in
the manufacture of quilted materials and related products
at its factory in Tunica, Mississippi, where it annually re-
ceives goods valued in excess of $50,000 directly from
points located outside the State; and during the same pe-
riod of time it ships goods valued in excess of $50.000 di-
rectly to points located outside the State. The Company
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRAC TICES
A. Background 4
Respondent operates a factory in Tunica, Mississippi, in
which it employes approximately 200 employees on the day
shift and 125 employees on the night shift in the manufac-
turing of mattress furniture and van pads. Included among
its supervisory personnel during the relevant periods herein
were Vice President Ralph Rubin, Day Plant Manager
2 The record, by stipulations, shows that. on Februar) 28, the t nion had
filed a petition for certification of representation. Case 26 R(C 5461, eek-
ing a unit of production and maintenance emploees at Respondent's Tuni-
ca, Mississippi, plant; that a Stipulation for Certificati pon (pon onsent
Election was approved on March 18; that the election uas held on April 22
and was won by the Union; that no objections had been filed: and that it
was assumed that certification would issue from Region 26 in the normal
course of events.
The General Counsel's unopposed motion to correcl the transcript. dat-
ed June 21. is granted, except as to p. 203. 1. 14. and receised in evidence as
G.C.'s Exh. 30
Ralph Potter. Night Plant Manager Ron Alexander, 5 Sup-
ervisor Beatrice O'Neal, Supervisor Joan Suan, Supervisor
Bertha Terry. and Supervisor Drew Wade. Respondent ad-
mitted in its answer that these employees were supervisors
under the Act.
On or about Saturday, February 12, the Union com-
menced an organizational drive when William E. Scott, an
International representative, contacted Delores Norwood
Sanders, an employee in the binding department of Re-
spondent.6 On the next day, the Union held its first of a
series of organizing meetings at the New Antioch Baptist
Church, located near Tunica, with six to eight employees
present. On the following Sunday, February 20, a second
meeting was held in the same church, with approximately
30 to 40 employees present.
On February 28. the same date that the Union filed its
petition in Case 26 RC 5461, supra, it also forwarded to
Respondent. via certified mail, return receipt requested, a
letter addressed to Ralph Rubin, manager, which was re-
ceived on March 1.7 The letter advised Rubin of the orga-
nizing campaign and then listed the names of 16 employees
as "some of the employees that will be active on the
Union's behalf." Six of the named employees worked in
the binding department. Delores Norwood, Christine Brig-
ham, Terrie M. McNeal, Christine Jones, Emma Ruth San-
ders. and Henrietta Watson. Two of the binding depart-
ment employees. Brigham and Watson, were subsequently
discharged as was a janitor, Hugh Cooke.
BH. The February 23 Speech of Ruhbin
The General Counsel alleges and Respondent denies
that, on or about Februar, 23, Respondent, in a speech
given by its vice president, Rubin, told its employees that it
would close its plant if the Union succeeded in its organiz-
ing campaign, threatened its employees with loss of jobs.
expressed to its employees the futility of unionism, solicited
its employees to withdraw their designation of the IUnion
as their exclusive bargaining representative. and an-
nounced to its employees that it was adopting and enforc-
ing a new rule for the purpose of preventing its emplosees
from discussing the Union.
(Offliial notice i taken of the D)eilsion and Order of the Board in Fln-il
,intuli n ..trt.' ( pnt, l n, Ir , Is 2 Nl RB 729 I1970). In this 197tl case the
Board fiund thie Respndenlt ,ielated Set 8(a( 1) (of the Act hb I) Ithreat-
ening emnploees .itlh plant cltourc: (2) engaging In coercive interrogation:
(31 thrcalenint employees vith loss of Jobs and with loss of their right lo
pre.ent their otn gries.ances and 4) granting benefits to induce or enmour-
age etrploees o vthu thdra. iheir support fron the Union during an organ1-
in canmpaign it Respondent's I unica l.callton The Board also found that
R;lph Ruibin. uh h then ),cculpled the position tof plant manager. coerced an
employee by telling the emaplicee lhat the C onrpan, had withdrawn its plani
to instlitue Incrcalsed lncentise pan rates because if Ihe Lnion (182 NI RB
731 732 i1970i t
ls.liandeir , as, no, lonter cmploied hbo Respondent wheu he testified
herein
SlllSanders u,, the da .lighlr Io ( aInn Norw ,,Id. presrdeirt ,f the i ctl
chapict of the NA ( i, and the N. ACP Ihereafter a.tclel sIlupported the
I ntun's ort nlt/int c.iillpal gtl
Rulblll ;i*as thle Itre[enlllt itneral menni a nln.ger .,I the plant. h.lsing
been ill Rcspionldclt'is cllolt f(or It ars. rlid sats the plant man.ager in
1969 at the tl i C tf 1 litlt SI utt ntlt tl ttrlrl, ( f,/i 1l tlr, , ip t it .In - lt
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no dispute as to the fact that Rubin gave two
speeches on February 23, one to the day shift and one to
the night shift.s There is a dispute as to the contents of the
speech and as to the interpreted effect of the speech with
Respondent's contending that Rubin's remarks were pro-
tected free speech under Section 8(c) of the Act.
Rubin testified that 48 hours 9 before he spoke to the
employees he started to compose a rough draft of a speech
that he wished to give to the employees to point out the
Company's opposition to the Union. He typed the speech
himself, reread it several times, reviewed it with a company
official and an unnamed attorney, and continued to make
changes in the text up until 5 minutes before delivery.' 0 On
the morning of February 23, he gave the speech for the first
time to the assembled day shift employees, and then in the
evening of that day he made the same speech to the night
shift employees. Rubin testified that he read the speech
"verbatim" and that he did not digress from it in any fash-
ion. However, he did state that, on nearing the end of the
speech given to the evening shift, he did not physically read
from the text as by then he had learned to say portions of
it without having to refer to the document.
General Counsel produced four witnesses who testified
that they were present when Rubin made his speech to the
day shift employees and two employees who were present
at the night shift reading. None of these witnesses contend-
ed that Rubin ignored the text of his speech and simply
spoke extemporaneously. Mark Carpenter, who had the
clearest recall of the speech and was the most impressive
witness of this group, testified that Rubin had papers in his
hand and appeared to look at them as he spoke, although
he admitted that Rubin occasionally looked up from the
papers during the course of his speech. I am convinced that
Rubin did read his prepared speech and did not substan-
tially deviate from its text.
However, there are portions of what was described by
Rubin as a 10 minute speech that were obviously remem-
bered by the witnesses, and which I will set forth in juxta-
position with the witnesses' testimony.
1. Plant closure and loss of jobs
[Text:] Let me tell you another reason why the
Company does not want a union here. As most of you
know, up until two years ago, we used to have a facto-
ry in California. There were 250 people working in
that plant until a union went after them, and after
many months, the union won an election. The people
that voted for the union thought that everything
would be peaches and cream, just like the kind of
promises you have been getting. You know what hap-
pened? For 7 months, the union tried to get the com-
pany to sign a contract. They couldn't do it, and the
union gave up and left town. But the damage had been
8 A cop) of the speech was received into evidence as Resp. Exh. 10.
9 This would be the day following the second union meeting at the New
Antioch (Church.
10 Rubin was not a novice in union campaigns as in the speech itself he
stated that he had participated in two prior elections.
done. The union created so much trouble in and out of
the plant that the people couldn't work and produce
the goods the customers wanted and needed. So our
customers went to another factory, and the Company
was forced to close the plant due to lack of business,
and 250 people who had been working everyday and
supporting their families, no longer had a job to go to.
Believe me, when I tell you that you are playing
with fire. That this is no game. A lot of people . . .
You . . . Your friends . . . all can get hurt. Don't
make the mistake of thinking that what happened in
California, can't happen here. Because it can, if you
let these people you probably never saw before, blind
you with their sales talk about what they claim they
can do. If you allow this union to create a situation
that makes it hard for us to take care of our customers,
look out . . . because the ones that would get hurt
first, and the hardest would be you .... Let me try
to explain to you just what you are playing around
with. Today we have working in this factory, almost
400 people who depend on their jobs to earn a living
for themselves and their families. That means that
there are actually not 400 people, but about 1500 peo-
ple depending on this plant if you count the families.
This Company, last year, in 1976 (and I am quoting
from our annual government wage report) this Com-
pany paid you people that work here 2-1/4 million
dollars in wages. And we are proud of this. Anybody
can understand what the loss of this kind of money
would mean to this town . . . to this County . . . and
most of all, to you and the people who depend on you.
* *
. . .think carefully about what you will be able to
do to earn a living for your families, if you bring in a
union and make it hard for the Company to provide
steady jobs for all of you all year round.
Testimony: Lee Greene testified that during the speech
Rubin said that "they closed one factory down because of
the union and he also would do the same for that one," and
that the factory Rubin referred to was in California. Car-
penter also testified that Rubin said a plant in California
closed "because of a union trying to get inside of it," and
that Rubin went on to state that "if the union did, by
chance get into the factory . . . the factory would close up
and move somewhere else." Delores Ruth Sanders testified
that Rubin "talked about a plant in California that closed
down because of a union," and that Rubin stated that "he
would lock the doors on this plant here in Tunica, and we
would be out of jobs." Emma Ruth Sanders testified that
Rubin stated that "there wasn't no union coming in the
plant, and before a union would come in there . . . he
would close the thing down."
910
TUNICA MANUFACTURING COMPANY
2. The futility of unionism
[Text:] But the Company is going to do everything
they legally can do to keep a union out of this plant.
There is only one reason for the Company feeling this
way and that is what we know from practical experi-
ence that a union cannot be of any benefit to our
people.
How can the Union get anything for you?
The plain, simple, honest truth, is that the Union
can't do one single solitary thing about anything, un-
less, unless the Company agrees to it. The Union can-
not make the Company do anything.
They [the Union] know as well as I do that they
cannot make the Company do anything the Company
doesn't want to do.
Testimony: Hibbler testified that Rubin told the em-
ployees that "the Company ... wouldn't have no union";
that "before they would have a union they would move";
and that "he would do all in his power to keep it out, even
if it means closing the doors." Delores Norwood Sanders
testified that Rubin stated that "there was nothing a union
could make them do," and that the Company "didn't have
to do any of the demands that the Union said."
3. Soliciting of employees to withdraw their designation
of the Union
[Text:] A number of people have come to me, telling
me that they are being pressured into signing cards,
and bothered while they were trying to work at their
job. If you are being bothered and want to be left
alone, all you have to do is to let either Mr. Potter or
myself know.
Now some of you may have been pressured into
signing and may have different thoughts about this
now, or it may be tomorrow or the next day. If you
have signed a card and want to change your mind, you
have the right to go to the person you gave the card to,
and ask for you card back. This is your right, and if
you are really dealing with honest people, they will
give it back to you. Don't let anybody tell you that this
is not your right. If they fail to give it back to you, you
have the right to go to the Union direct and demand
that they do so.
Testimony: Carpenter testified that Rubin told the em-
ployees that "people had been bothering people, trying to
solicit cards" during their working time; that "a new policy
would go into effect"; and that in the future "anybody
caught talking in huddles, or in groups . . . and anybody
caught soliciting during working time would be fired for
solicitation." Carpenter further testified that Rubin stated
that "the people who had listened to his speech and had
signed cards beforehand, and had different opinions after
he got through with his speech, and wanted their cards
back, could go to the people who had gave [sic] the cards.
And if those people would not give them back, that they
could come to the office, or come directly to him, and he
would go and see about getting their cards back from
them."
Hibbler testified that Rubin advised the employees that,
if they could not get their signed authorization cards back
from the person they had given them to, they could "come
to him and he knowed [sic] a way to get them back," and
that "if anybody is harassing us about signing a card, you
could come to him and let him know and they would show
these people the door." Watson testified that Rubin stated
that "if anybody had signed a card and wanted it back, to
go to the person who they got the card from and ask them
for it, and if they didn't give it to them, to come to him,
and he had a way of getting the card back." Emma Ruth
Sanders testified that Rubin said that if an employee could
not obtain his union card from the person who gave him
the card "to let him know and he would try to get it back
and he would get it back." Delores Norwood Sanders testi-
fied that Rubin said that, if an employee wanted to have
his card returned and could not obtain it from the person
who gave it to him, the employee "could come to him and
let him know, and he'll get them back to you." Sanders also
testified that Rubin stated that "some of the employees had
told him that people were harassing them during work
time, trying to get them to sign union cards," and that
Rubin then added that "he was placing a new rule on the
board, and that meant that no one could be standing
around in a group talking, after that."
The question of the propriety of Rubin's speeches to the
employees about plant closure must be decided in the light
of the principles stated in N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969). There the Court established cer-
tain standards for determining whether an emlpoyer's
statements about the effects of unionization are permissi-
ble. The Court stated that any evaluation of employer
statements "must take into account the economic depen-
dence of the employees on their employers, and the neces-
sary tendency of the former, because of that relationship,
to pick up intended implications of the latter that might be
more readily dismissed by a more disinterested ear." (395
U.S. at 617.) Accordingly, the Court continued:
. . .an employer is free to communicate to his em-
ployees any of his general views about unionism or
any of his specific views about a particular union, so
long as the communications do not contain a "threat
of reprisal or force or promise of benefit." He may
even make a prediction as to the precise effect he be-
lieves unionization will have on his company. In such
a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an
employer's belief as to demonstrably probable conse-
quences beyond his control or to convey a manage-
ment decision already arrived at to close the plant in
case of unionization .... If there is any implication
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that an employer may or may not take action solely on
his own initiative for reasons unrelated to economic
necessities and known only to him, the statement is no
longer a reasonable prediction based on available
facts but a threat of retaliation based on misrepresen-
tation and coercion, and as such without the protec-
tion of the First Amendment. [396 U.S. at 618.]
As previously stated, I find that Rubin did read from his
prepared text and did not substantially deviate therefrom.
However, I also find that the speech in its overall context
and in specific parts thereof was replete with unmistakable
and thinly veiled threats of plant closure and loss of jobs.
The three witnesses who testified for the General Counsel
as to threats of plant closure, Greene, Carpenter, and De-
lores Norwood Sanders, were all young, unsophisticated.
and sincere. Their testimony did not purport to be an exact
reproduction of Rubin's very words, but their testimony
does reveal that they all picked up the "intended implica-
tions" contained in the vice president's speech. The mes-
sage they got was that the Company had closed one factory
down in California because of a union trying to organize
its employees, and, if the Union did get in to Respondent's
factory in Tunica, the Company would close that one
down and move someplace else.
Rubin spelled out to the assembled employees that 250
employees had lost their jobs in California after the union
won an election, and then went on and "explained" to
them "just what you are playing around with," 400 jobs
that support 1500 people. In a town of 1661 people, and a
county of 11,542 people,'" it is evident that a factory that
provides 400 jobs is a main source of employment for the
people of that area. Respondent's threat to remove 400
jobs from Tunica was plainly coercive and inhibited Re-
spondent's employees from exercising their rights guaran-
teed in Section 7 of the Act.
Also coercive in Rubin's speech was his constant empha-
sizing of the futility of choosing a union: "[A] union cannot
be of any benefit," "a union can't do one single solitary
thing about anything," and "they cannot make the Compa-
ny do anything the Company doesn't want to do." I con-
clude that Respondent, by Rubin's speeches of February
23 about closing the plant, the loss of jobs, and the futility
of choosing a union, inhibited Respondent's employees in
the exercise of their Section 7 rights and violated Section
8(a)(l) of the Act. Jimmy-Richard Co., Inc., 210 NLRB 802
(1974), enfd. sub non Amalgamated Clothing Workers of
America, AFL-CIO v. N.L.R.B., 527 F.2d 803 (C.A.D.C.,
1975); Greenville Shipbuilding, Inc., 165 NLRB 891 (1967).
I also find that Rubin, by his language about employees
seeking to get their signed cards back, solicited the employ-
ees to withdraw their signed authorization cards from the
Union. Carpenter, Hibbler, Emma Ruth Sanders, and De-
lores Ruth Sanders got this message loud and clear. Such
solicitation constitutes unlawful interference with the em-
ployees' rights to choose their own representative and is a
violation of Section 8(a)(l). S. E. Nichols-Dover, Inc.;
I Population of town of Tunica 1661. count) of Tunica 11,542. Rand
McNally Road Atlas, 1970.
Spencer Shoe Corporation and Imac Food Systems. Inc., 167
NLRB 832 (1967).
C. The New No-solicitation Rule
Rubin testified that, prior to his speech of February 23,
Respondent's employee plant handbook contained the fol-
lowing rule: "No solicitation of any kind is to be made
during working hours." In the text of his speech, Rubin
stated that a number of people had come to him telling him
they had been pressured into signing cards while they were
trying to work at their job. His speech then went on to read
as follows:
Our plant rules forbids [sic] any kind of solicitation
during work time. Ths [sic] rule will be strictly en-
forced from now on and anyone who violates this rule
will be discharged. This particular warning will be
posted on the bulletin board.
Immediately after the conclusion of the speech, the Com-
pany posted a notice which read:
TO ALL EMPLOYEES
THE FOLLOWING SUPERSEDES AND EMPHASIZES ALL PREVIOUS
RULES DEALING WITH SOLICITATION IN THE PLANT.
"NO-SOLICITATION FOR ANY PURPOSE WILL BE ALLOWED DURING
WORKING TIME . .. OR DURING THE WORKING TIME OF THE EM-
PLOYEE BEING SOLICITED."
THE PENALTY FOR THIS VIOLATION WILL BE IMMEADITE sucl DIS-
MISSAL.
Emma Ruth Sanders, an employee in the binding de-
partment. testified that on February 24, at approximately
11:30 p.m., her supervisor, Beatrice O'Neal, approached
her at her machine and gave her a sheet of paper which
contained the following handwritten heading:
The names below are people that don't want a union
at Tunica Mfg. Co. Forget any cards that we have
signed.
Sanders testified that, at the time O'Neal gave her the
document, O'Neal asked her "to go around to everybody,
to try to get everybody to sign it." Sanders then asked
O'Neal if she wanted her to leave her machine, and O'Neal
told her to "go ahead." Sanders then left her machine and
spent approximately 15 minutes going from machine to
machine asking other employees to sign the paper. When
she had finished asking other employees to sign, she re-
turned the paper to O'Neal. Sanders' signature is the first
one on the page which contains the signatures of 20 other
employees. Sanders did not know whether these employees
were for the Union or against it but knew that they all were
her social friends.
Delores Norwood Sanders testified that she was working
at her machine in the binding department that evening
when Emma Ruth Sanders approached her and asked her
to sign the petition. Delores Sanders did sign the paper
being the 14th signatory on the list. She saw the paper
being carried from operator to operator by Emma Sanders
and also saw O'Neal in the same work area while the peti-
tion was being carried around.
Christine Brigham, another binding department employ-
912
TUNICA MANUFACTURING COMPANY
ee, testified that she reported to work at 4:15 p.m. that
same day when O'Neal approached her and told her "she
wanted to talk to me later on." Brigham testified that later
the same evening she was at her machine when she heard
O'Neal ask Emma Ruth Sanders if she could get anyone to
sign the paper and heard Emma Sanders reply "yes." Brig-
ham did sign the petition for Sanders, and her name is the
third one on the list. Between I I p.m. and midnight,
O'Neal came up to Brigham at her machine "and asked her
if she signed the petition," and she responded "yes." She
then asked O'Neal if O'Neal still wanted to talk to her, and
O'Neal answered "no."
O'Neal, whose name and activities appear throughout
the hearing, and who was still in the employ of Respon-
dent, was not called by Respondent to testify; and the tes-
timony of Emma Ruth Sanders, Delores Norwood San-
ders, and Christine Brigham concerning the circulation of
the petition was not denied or contradicted by any witness,
and I credit their testimony.
I. The practice concerning solicitations prior to
February 23
Delores Norwood Sanders testified that, prior to the
speech of Rubin on February 23, on many Friday nights
the employees bought Avon products during their working
time. She also testified that employees would take up col-
lections for the needy or sick, or for the family of someone
who had died, again chiefly on Fridays. She further testi-
fied that she had observed Supervisor O'Neal take up col-
lections from employees during working time in working
areas for a gift for the night plant manager.
Employee Carpenter testified that, before Rubin's
speech on February 23, collections were taken up from
employees for the benefit of people whose houses had
burned and for churches pointing out that his own super-
visor, Mary Gann, had solicited contributions for a lady
whose house had been burned down, as well as for a sick
lady. Carpenter summed it up by stating that such collec-
tions were taken up by "everybody, really, from the super-
visors on down."
The testimony of Delores Sanders and Carpenter stands
uncontradicted on collections, as neither O'Neal nor Gann
was called to testify by Respondent, and none of the wit-
nesses presented by Respondent denied or contradicted the
testimony of Sanders and Carpenter concerning solicita-
tions made prior to February 23.
2. Concluding findings on the no-solicitation rule
In Essex International, Inc.,'2 the Board held that there
was a distinction between the terms "working hours" and
"working time," and stated that:
. . .we shall consider rules which prohibit solicita-
tion or distribution during "working time" or "work
time" to be valid on their face. On the other hand.
those rules which prohibit solicitation or distribution
2211 NLRB 749, 750 (1974) (Chairman Miller and Member Kennedy:
Member Penelto concurring: Members Fanning and Jenkins dissenting)
during "working hours," unless their impact on lunch
and breaktime is clarified, unduly restrict employees'
rights under Section 7 of the Act to engage in union
solicitation or distribution during their nonworking
lime.
Thus, it is clear that Respondent's longstanding rule con-
tained in its employee handbook prohibiting solicitation
during working hours is invalid, as the Company produced
no extrinsic evidence showing that the "'working hours'
rule was communicated or applied in such a way as to
convey an intent clearly to permit solicitation during
breaktime or other periods when employees are not active-
ly at work." 3 However, this does not make the new rule
which refers to worktime. promulgated on February 23,
automatically valid. Although valid on its face, it is invalid
if it was adopted for a discriminatory purpose. The Wn. H.
Block Comprn,, 150 NLRB 341 (1964); Ward Manufactur-
ing, Inc., 152 NLRB 1270 (1965). Prior to the appearance
of the Union, Respondent, without objection, permitted
the employees to purchase cosmetics during worktime and
in work areas; supervisors and employees were allowed to
take up collections for churches and people in need, and on
one occasion a supervisor took up a collection from em-
ployees during working time in work areas for the night
plant manager.
Despite the foregoing relaxed policy, within several days
of Respondent's learning of the union campaign, Rubin
hastily called a mass meeting of employees and changed
the wording of the Company's no-solicitation rule. Early in
his speech, Rubin spotlighted the signing of union cards as
the reason for the change in the Company's no-solicitation
rule by telling them that "We know that they have been
huddling up in the corners of the bldg [sic] trying to get
people to sign union cards." It was to frustrate the employ-
ees' right to sign union authorization cards that this change
in wording was so precipitously made as is further empha-
sized by Rubin's words near the end of his speech: "If you
are being bothered and want to be left alone, all you have
to do is let either Mr. Potter or myself know. Our plant
rules forbids [sic] any kind of solicitation during worktime.
This rule will be strictly enforced from now on and anyone
who violates this will be discharged."
Respondent's actions after Rubin's speech are in sharp
contrast to the wording of the newly posted rule. It is unre-
butted that Supervisor O'Neal solicited an employee that
evening to solicit other employees to sign a form that re-
quested the Union to "forget any cards that we have
signed." Thus, while seeking to prohibit employees from
engaging in prounion activities, Respondent surreptitiously
promoted the solicitations of employees' signatures on an-
tiunion petitions.
Under all these circumstances, including the timing of
the promulgation of the rule, the fact that Respondent de-
viated from its past practices concerning solicitation, and
the fact that Respondent engaged in disparate action to
undermine the Union by promoting an antiunion petition,
I am persuaded that Respondent promulgated this rule for
a discriminatory purpose; that is, to defeat union organiza-
tion. I find therefore that Respondent's new rule violated
I Id
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) of the Act. The Times Publishing Company,
231 NLRB 207 (1977).
D. The Mailing of the Antiunion Petitions to the Union
Mrs. Bettie P. Webb, postmaster of the United States
Post Office at Tunica, by an affidavit which was received
into evidence by stipulation of the parties, identified a reg-
istered letter, postmarked February 25 and addressed to
D.W.A., 3348 Fontaine Road, Memphis, Tennessee 38116,
as having been presented for mailing by "Mr. Ralph Ru-
bin" on February 25. Attached to Mrs. Webb's affidavit,
and also received into evidence by stipulation, was a copy
of the receipt for the postage, registration fee, and returned
receipt paid to the United States Postal Service, which
shows on its face that the letter was sent from "Box 519,
Tunica, MS. 38676 to DWA, 3348 Fontaine Rd., Memphis,
TN. 38116." Also attached to Mrs. Webb's affidavit and
received by stipulation was a copy of the application for
P.O. Box 519 at the Tunica post office. This document
shows that P.O. Box 519 was applied for and assigned to
Ralph D. Potter on September 27, 1973, and continued to
be assigned to Potter up to and including the date of the
postmaster's affidavit of April 28. Potter was the day plant
manager of Respondent and an admitted statutory super-
visor.
The envelope bearing the same registration number as
the letter that had been identified by Postmaster Webb,
297, was also received by stipulation of the parties. The
parties further stipulated that the envelope was received by
the Union on or about February 27 or 28, and that at the
time of its receipt it contained five sheets of paper, each
bearing signatures under the following heading: "The
names below are people who don't want a union at Tunica
Mfg. Co. Forget any cards we have signed." These five
signature sheets were also received into evidence by stipu-
lation as General Counsel's Exhibits 5(a), (b), (c), (d), and
(e).
Emma Sanders identified General Counsel's Exhibit 5(d)
as the petition she was given by her supervisor, O'Neal, on
February 24, and as the petition she had circulated among
other employees during their working time and had there-
after returned to O'Neal.
Delores Norwood Sanders identified General Counsel's
Exhibit 5(a) as the petition presented to her by employee
Vita Manues, an inspector, on the same day that she had
signed a petition at the request of employee Emma San-
ders, February 25. She testified that Manues came to her
prior to Emma Sanders' approach and that she told Man-
ues that she had already signed the petition, although she
had not. Delores Sanders was able to identify this docu-
ment at the hearing because Manues' name was on top of
the list, just as she had seen it on February 25. Later, when
Emma Sanders approached her, she had signed the petition
Sanders had given her and on which Sanders' name ap-
peared as the first on the list.
Vice President Rubin and Plant Manager Potter both
testified on behalf of Respondent but did not deny or con-
tradict the statements contained in the affidavit of Post-
master Webb.
E. Cooke's Conversation With Rubin
Hugh Cooke testified that he began working at Respon-
dent's plant in Tunica in or about 1968 starting in the ship-
ping department. As the years progressed, he drove the
company mail truck, picked up mail and parts, and in 1975
he commenced operating a forklift truck around the plant.
About 3 months prior to the hearing, he stopped operating
the forklift truck and began sweeping in the warehouse,
and carrying goods through the factory on a two-wheel
handtruck.
Cooke learned early in February that a union organizing
campaign was in progress when a man gave him a union
card which he signed. After receiving "roughly guessing"
35 or 40 blank cards, he asked several other employees to
sign cards. He talked to employees about signing the cards
while in the plant, on the parking lot, and at night at their
homes.
Cooke testified that, around the first of March, he was
called to the office of the vice president where he was
asked by Rubin what he was going to do with those union
cards. 14 He said that Rubin then told him that "he didn't
believe in unions, and that we had talked about the
NAACP and all that kind of stuff five or six years ago, and
he didn't see why I was fooling with that-with them union
cards."
Cooke further testified that, about a week later, Rubin
called him into his office, asked him if he had any more
union cards, and, after Cooke replied "Yes," Rubin
showed him two blank cards and gave them to him. Cooke
also testified that Rubin told him, "[Y]ou got this thing
started and you've got to get it stopped," and then handed
him a piece of paper that he (Rubin) had been holding in
his hand and told him, "[T]he only way you can get it
stopped is to take this petition and get the people to sign it
that you . . . gave the cards to." Cooke recalled that the
petition read something like, "We want our cards back,
DWA"; and, when shown General Counsel's Exhibit 14,
he identified it as the paper handed to him by Rubin. This
piece of lined copy-book paper carried the following hand-
written message across the top: "DWA Union, We want
our cards back. We don't want a Union."
Cooke testified that he saw Rubin write the message on
the piece of paper while he was in the office. When Rubin
testified he did not deny that General Counsel's Exhibit 14
was in his handwriting. After Rubin handed the paper to
Cooke and asked him to take it around and get it signed,
Cooke told Rubin, "I'm kind of afraid to do that now ...
because all these people [are] liable to get mad at me if I do
that now."
Cooke testified that, during the same conversation, Ru-
bin asked him if he had any more union cards, and, when
he replied yes, Rubin told him that he would like to have
about six or eight for his attorney. When Cooke told him
they were home, Rubin told him to go home and get them.
Cooke went home, got the cards, and brought them back to
Rubin. Cooke then went back to sweeping in the ware-
" Cooke's name was listed on the Union's letter of February 28 to Re-
spondent as one of the 16 employees who would be active on the Union's
behalf.
914
TUNICA MANUFACTURING COMPANY
house when Rubin approached him and told him, "[Y]ou
got this thing started . .. .You're going to get it stopped
one way or another . . if you don't I'm going to throw
you and your wife out of Tunica County." Cooke plaintive-
ly replied, "Well, Mr. Rubin, I went back and got the cards
like you asked me," as that was all he knew to do.
Rubin's version was that I or 2 days after his speech on
February 23, two employees brought unsigned union cards
to him, stated that Cooke had given the cards to them,
"and that they were giving them back to me to give to
him." Rubin then called Cooke to the office, handed him
the cards, told him where they were coming from, "and
that I was delivering them back to him as per their re-
quest." Rubin said that Cooke could not look him in the
eye, said nothing for a moment or two, "and finally mum-
bled something or other about having made a mistake, and
that he was sorry." Rubin then sent Cooke back to his
department after telling him there was nothing else to dis-
cuss.
Rubin testified that, about I hour later, Cooke returned
to this office "this time almost at the point of tears" and
"stated that he did not want to have anything further to do
with the union . .. and wanted to know what to do." Ru-
bin continued as follows:
And I told him in plain language that he had gotten
himself into this, and it was up to him to get himself
out of it, that there was nothing I could do to help
him.
He kept repeating the same request, statement, over
again several times. And I finally wrote out for him on
a piece of paper a request to have them return his
card. And, he took the paper and he left.
Rubin testified that, later in the afternoon, he was in the
warehouse when Cooke stopped him and stated that he
wanted to get out of the union, but he was scared and
afraid that "they would burn his house down if he told
them that he wanted to get out of it." Rubin said he told
Cooke once more that there was nothing more that he
could do for him.
On the following morning, Cooke came in to see Rubin
and said that he could bring the vice president the cards
that he had, and "I told him he could do what he wanted to
do about it." Later that day, Cooke did bring some cards
back to Rubin and that was the last conversation he had
with Cooke.
The credibility conflict in the testimony of these two wit-
nesses is of the sharpest nature. Cooke was an uneducated,
ill-at-ease witness who repeatedly used the phrase "roughly
guessing" when referring to dates and numbers. However,
he impressed me as an honest witness who was sincerely
struggling to tell the facts as he truthfully recalled them,
and I credit his testimony as to its basic contents. Rubin
was an articulate, veteran witness, whose testimony im-
pressed me as contrived, and I do not credit it. In addition,
I do not credit Rubin's version because of its inherent im-
plausibility. When, according to Rubin, two unnamed em-
ployees brought union cards to him and asked him to re-
turn them to Cooke, it strains credulity that this vigorous,
dynamic vice president and general manager would supine-
ly carry out their request and not tell these two employees
to return the cards themselves. Rubin's admission that, af-
ter many entreaties from Cooke, he finally decided to help
him get his card back by writing on a piece of paper a
request to have "them" return his card, does not bear scru-
tiny. Although Cooke identified with General Counsel's
Exhibit 14 as the document written by Rubin, Rubin did
not contest Cooke's testimony and did not deny that it was
his handwriting. Certainly, if it had not been Rubin's hand-
writing, he would have strongly pointed this out.
F. Cooke's Conversation With Drew Wade
Cooke testified that, approximately I week after his last
conversation with Rubin, his supervisor, Drew Wade, ap-
proached him in the warehouse where he was working and
told Cooke that he was going to tell him something. "He
said, you'd better be careful if you're dnnking or anything.
Mr. Rubin said that if he had you caught with one drop of
whiskey or one drop of beer on your breath that he was
going to have you locked up in jail." Wade, who was an
admitted statutory supervisor, was not called by Respon-
dent to testify, and the testimony of Cooke regarding this
conversation was not denied or contradicted by Respon-
dent's witnesses.
G. The Lee Greene, Jr., Conversation With Rubin
Lee Greene, Jr., who had worked for Respondent since
1968, testified that sometime in March he was called on the
plant interphone and instructed to go to the main office.
Greene knew that his name appeared on the Union's letter
to the Company advising it of the Union's organizing cam-
paign. Upon arriving at the vice president's office, Rubin
told him that he had received a telegram and that it had
surprised him because Greene's name was the first one on
the list. According to Greene, when asked by Rubin "why
I would do him that way," Greene responded, "I told him
I couldn't get this union myself, I had to have the peoples.
The peoples also had to agree with it. He said I was doing
him wrong."
Greene also testified that Rubin reminded him that in
the past Rubin had assisted him in securing a loan for
furniture and that Rubin said, "You come to me when you
needed help and I gave it to you. Where was the union
then?"
Greene's account of this conversation was not denied or
contradicted by Rubin, and I credit it.
H. The Joyce Bradshaw Conversation With Joan Swan
Joyce Bradshaw, an employee in the binding depart-
ment, testified that on February 23, after Rubin had given
his morning speech, her supervisor, Joan Swan (an admit-
ted statutory supervisor), came up to her while she was at
her machine and said, "Joyce. we're having a whole lot of
trouble at our plant. And we're trying to help you." Brad-
shaw then testified that Swan said "We wouldn't have no
job if this union stuff come through."
Swan was not called to testify on behalf of Respondent
and the testimony of Bradshaw regarding this conversation
915
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not denied or contradicted by Respondent's witnesses,
and I credit it.
I. The Discharge of Bradshaw, Watson, Brigham, and
Wheeler
I. Joyce Bradshaw
Joyce Bradshaw, hired on September 19, 1973, was ter-
minated on March 101 allegedly because of her failure to
achieve minimum production standards. The complaint al-
leges that she, as well as Watson, Brigham and Wheeler
were discharged for discriminatory reasons, i.e., because
they joined or assisted the Union, or engaged in other
union activities or concerted activities.
Prior to going to work for Respondent, Bradshaw, who
was hard of hearing and had a severe speech impediment,
had received some training at the Alled Industries work
shop.'6 Once she started with Respondent, she worked in
the binding department '7 as a binder for her 3-1/2 years of
employment. She testified that she signed a union card dur-
ing the week of February 18 while on her way home from
work but did not attend any union meetings. Bradshaw's
undenied testimony about her conversation with Supervis-
or Joan Swan about jobs and the Union on February 23
appears in section 11,H above.
On her final day of employment, Swan accompanied her
to Plant Manager Potter's office where she testified she was
told by Potter "that my production was low"; that "he was
going to lay me off."
Bradshaw gave various reasons for her low production.
She first testified that while operating her binding machine
"most of the time I had trouble with my thread, and I
would skip stitches." She admitted that her production
dropped in January and stated that it was caused "[Bly
them getting me off of my machine. And just like the bind-
ing would pile up on me, and they would take me off my
machine, and send me to carry out binding." She would
carry the binding to other employees to work on it. She
testified that she kept carrying binding out 2 or 3 days a
week, sometimes a whole week. She also testified that dur-
ing the last month she worked she repaired other employ-
ees work for 2 or 3 days a week, mostly all day.
On cross-examination, she admitted that she thought a
time ticket was made to show that she was off production
when not working on binding and when doing some other
job like fixing stitches or taking pads to other operators but
stated that she did not receive such tickets.
The final warning issued to Bradshaw (on the date of her
discharge), signed by herself, stated as the cause, "Termi-
nated for low production 76% avg. for last 5 wks. 4 prior
warnings." 18
15 Bradshaw testified that the last day she worked was March 5. but C om-
pany records establish March 10 as the date of termination.
16Allied Industries was a sheltered work shop program in Tunica estab-
lished by the State of Mississippi for the specialized training of handicapped
people.
I Production records produced by the Company show 27 operators em-
ployed in the binding department on the day shift in the first week of March
with 22 operators on the night shift. Operators were paid on a piece-rate
basis.
On cross-examination, Bradshaw admitted that she
signed a warning slip dated November 10, 1976, for low
production, and that it read "4th and final." She did recall
that Potter then told her that "Your job went back down.
But we want you to go back up on your production. If you
don't go back up on your production, we're going to lay
you off." She also admitted that Potter and Swan had pre-
viously informed her that she had to make a certain per-
centage of production or be fired.
Respondent's production records show that during her
last 5 weeks of employment Bradshaw had production per-
centage figures of 77, 87, 73, 68, and 84 for a 5-week aver-
age of 76.3. She had a 10-week average of 74.7 percent.
Respondent's Defense
Ralph D. Potter, who had served as the plant manager
for the past 4 years, testified that he administered the per-
sonnel policies of the Company.19 Production records were
kept for six departments, binding, quilting, bagging, cut-
ting, lining, and sewing. Rates for the binding department
were set according to the amount of allowed time required
to make one unit of one product, so that there were differ-
ent rates of time for an infant's crib pad as against an adult
mattress pad. Built into the rates is the base time that it
actually takes to perform the job with 5 percent put in for
personal time, 5 percent for fatigue, and 5 percent for ma-
chine or any other unavoidable delays. The unavoidable
delay factor is set at 20 minutes a day to cover small inter-
ruptions in the operators work that would not justify her
getting a time ticket.
When an operator notices some problem in her machine,
the supervisor is to be so informed so that the supervisor
can write up a time ticket to cover the time that the opera-
tor was off production. The time so lost is not figured into
the operator's performance, and she is paid on a straight
hourly basis for the downtime.
Potter testified that for new employees the Company
used a 12-week training period. As plant manager, it was
his job to achieve 100 percent production or better, but
certain factors, such as operators in training, operators not
doing their best, or operators with family or emotional
problems, would bring the average below 100 percent. Dai-
ly records were kept on each binding employee's produc-
tivity. Production records were complied every week for
each employee, and, on a Monday or Tuesday of the fol-
lowing week, Potter would review them.
Potter further testified that there was a company policy
of writing warnings for low production, so as to advise the
operator that her performance was not adequate to keep
her in her job and to counsel her so as to eliminate any
need for future warnings. He stated there was no fixed
number of such warnings that would be given an operator
before she would be discharged, but that it varied depend-
ing on circumstances, and that each operator was consid-
's The termination of employment notice issued to Bradshaw on the same
date after "Explanation" read: "Released for low production less than 80%
production six wks. average and 4 prior warnings." This was signed by
Potter.
`9 Potter's testimony on the procedures used in the operation of the plant
were uncontradicted, and I credit it.
916
TUNICA MANUFACTURING COMPANY
ered individually with the employees attitude always a con-
sideration. Another factor to be considered was whether it
was a peak season. If orders are coming in faster than pads
can be made, lower standards of production are allowed as
the Company does not want to cancel orders or lose cus-
tomers. He testified that, in March, the plant was coming
off a peak season, although admitting that the peak period
usually ends in January 2 as it did in 1976.
Potter testified that he knew Bradshaw and that she was
capable of sewing at 100 percent as she had done on many
occasions since 1973.
2 1 However, she had a tendency to fail
back off of the rate down to an intolerable level, and she
would only go back up and achieve production after she
had received a warning that her job was in jeopardy.
On or about March 8 or 9, Potter testified that he had
reviewed Bradshaw's production records, as well as those
of Watson, another day shift employee, and night shift em-
ployees Brigham and Wheeler, for the previous 15 or 18
weeks. When asked by General Counsel as to the Com-
pany's policy on the number of written warnings an em-
ployee could receive prior to discharge, he testified:
Well, on March 9th, we used as a guideline on this
group of people, that if the warnings exceeded three,
and they had been given an opportunity to improve
the situation, and their production was below 80 per-
cent on the five weeks that we averaged to evaluate it
at that point, that we would discharge them then.22
On March 10, Bradshaw had received four warnings and
she was discharged.
2. Henrietta Watson
Henrietta Watson, hired March 5, 1974, was terminated
on the afternoon of March 10 allegedly because of low
production.
Watson testified that she started in the plant's butt seam-
ing department, moved to the seaming department, and in
the summer of 1976 was transferred to the binding depart-
ment. Watson operated a sewing machine in all three de-
partments. In early February, she learned that there was a
union campaign going on and later signed a union card.
She attended a union meeting at the New Antioch Church
in the same month when she received some blank cards
from Scott, the union representative, and thereafter se-
cured the signature of one employee while in her car on the
plant parking lot. Watson also allowed the Union to use
her name on the letter to the Company that listed employ-
ees who would be active on the Union's behalf.
On March 10, she was summoned to the plant manager's
office where Potter told her that, "[M]y production was 70
:2 Company records show that nine employees were terminated in Janu-
ary 1976 for low production.
21 Production records were not produced for the period 1973 up to No-
vember 2, 1975. However, Company records from that last date through
March 3 show that Bradshaw achieved a production rate of 100 percent or
more on only one occasion, and that was on November 28. 1976. when her
recorded average was 101 percent.
22 Later on cross-examination, Potter qualified this statement by stating
he did not mean to imply that that was the only reason that the four em-
ployees were terminated.
percent and 70 percent or 75 percent wasn't enough, that it
had to be 100 percent." Company production records show
that Watson's average for her last 5 weeks of employment
was 67.2 percent based on weekly totals of 66, 62, 65, 66,
and 67 percent. Watson testified that two other veteran
employees were doing the same kind of work she was
doing, Willie Mae Woods and Annie Pearl Watson. Their
production averages for the same period, as shown in Re-
spondent's records, were 90.3 and 82.3 percent. Watson
also testified on direct that no supervisor at any time com-
plained about her rate of production.
On cross-examination, Watson was found not to be a
credible witness. Her prehearing affidavit read that she did
not pass out any union cards. The same affidavit read that
right after Christmas 1976 Potter had spoken to her about
her low production. When shown Respondent's Exhibit 2,
a warning notice dated "2/8/77" showing "Low produc-
tion 66%', and marked as the third warning, she admitted
that it carried her signature.
Respondent's Defense
Potter testified that he discharged Watson because she
was a long term low producer only producing at the 60-to
70-percent level of production. He had talked to her on
numerous occasions as to why she could not achieve 100
percent but to no avail.
3. Christine Brigham
Christine Brigham, hired on December 15, 1975, was ter-
minated on the evening of May 9 allegedly because of low
production and not progressing in her job. Brigham operat-
ed a sewing machine in the binding department on the
night shift under Supervisor O'Neal. Although the record is
not clear as to when O'Neal told her, Brigham admitted
that O'Neal did tell her that she was expected to make 100
percent production, and that she was never told to make
any other percentage other than 100 percent.
Brigham first learned of the Union's organizing cam-
paign on February 17 when she was at the house of anoth-
er employee. Irene Sims. At Sims' request, she signed a
Union card.23 Brigham accepted several cards from Emma
Sanders and about a week and a half later asked two other
employees to sign cards while they were at her machine.
About 2 weeks after she signed her card, she attended a
union meeting at the church and then attended one more
meeting before her discharge.
On the evening of March 9, she was called to the office
of Night Shift Manager Ron Alexander who had her folder
before him. O'Neal was also present. When asked to state
what was said in Alexander's office, she testified:
He told me that he had always-he told me that he
had talked to me before about production.
And he asked me he said, I told you to bring your
production percentage up.
And I told him, I had tried and I had brought it up
2i Both Sims aind Brigham's na;mes % ere set forth in the Union's letter to
the Compian on hebrua.lr 28 ith Sims' name headlng the list Sims was
not disch:lrged
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to 83.
And he said, it was in the 70's at first-and [then] he
said, he added 4 other percentages with the last one,
and it added up to 77 percent.
He said it wasn't enough.
Alexander stated to her that she knew she had four or
five warnings, and she agreed. She was thereupon terminat-
ed. On cross-examination, Brigham admitted that she knew
that the Company reviewed her production records on a
weekly basis and also admitted that she had received three
warnings about low production, one in March 1976, one in
November 1976, and one in February. She also admitted
that at times she had made "very good production" but
denied that she had told Alexander she didn't care if she
made production. Brigham was a very young, serious wit-
ness, and I credit her testimony generally.
Company production records show that during her last 5
weeks of employment she was absent the first week, and
that her production percentage averages for the next 4
weeks were 92, 75, 65, and 83, percent. For these 4 weeks
the records show an average percentage of 77.3 whereas the
correct figure is 78.7. These same records show that, for the
same period of time, Brigham had a higher production rate
than seven other experienced night shift binding employ-
ees,24 and a lower production rate than eight other veteran
operators. For the 5 weeks prior to these weeks, she had a
production percentage average of 89.4 percent.
Respondent's Defense
Ron Alexander was the assistant plant manager in
charge of the night shift during his period of employment
with Respondent from May 1976 until its cessation on
April 4. Alexander testified that he received production
figures on a Monday or a Tuesday and would then call in
employees to discuss their progress good or bad. He testi-
fied that he had personally observed Brigham not working
steady. He further testified that he had talked to her every
week for over a period of a month, and that he had made
up his mind that, if she did not show some desire to do "a
little bit better job," he was going to terminate her. It was
Alexander's position that, "She could make production on
any given day or week that she wanted to, but she didn't
try, and she didn't have any desire whatsoever to do well."
According to Alexander, he called Brigham to his office as
he had done on a number of occasions before and told her
she was going to have to show some sort of improvement,
and she stated that she really didn't care if she made pro-
duction or not. He then terminated her.
Alexander testified that by production standards he
meant 100 percent, but that he had no specific percentage
in mind when he discharged Brigham, and that he never
conveyed to her any specific percentage that she had to
make.
24 Rudd. Norwood, Pious. Rowell, Scott, Sutton, and Betty Sanders. Brig-
ham also had a higher rate than five other operators, but, since these were
all hired after January I. I have not compared their production to
Brigham's.
4. Rosetta Lumpkin Wheeler
Rosetta Lumpkin Wheeler, hired in July 1975 when her
family name was Lumpkin, was discharged on the evening
of March 10 allegedly because of her low production.
Wheeler testified that she worked as a binder in the bind-
ing department from the time she was hired until January
1976 when she went on maternity leave. In the following
April, she returned to work and was placed on a mending
machine for about a week, and then was moved back to the
binding machine and worked as a sewing machine operator
in the binding department until the time of her discharge.
Wheeler admitted that Supervisor O'Neal had said that ev-
erybody had to make 100 percent.
Wheeler signed a union card in the middle of February
during a break from work while in the parking lot of the
plant. She did not attend any union meetings until after her
discharge, and she did not pass out any cards. She testified
that her supervisor, O'Neal, on the night after Rubin's
speech, approached her at her machine and asked her if
she wanted a union. She told O'Neal that she didn't know
because she had never worked under a union before.
O'Neal then replied to her that she had and said, "[W]e
didn't need one" and "a lot of people would be out of a
job," and O'Neal then asked her "if I wanted that." Wheel-
er told her no. Wheeler's testimony as to this conversation
with her supervisor was not contradicted, and I credit it.
On March 10, O'Neal took Wheeler to the office of
Night Manager Alexander where she was told that her pro-
duction had dropped back to 65 percent, and that he was
sorry but he had to let her go. She further testified that
Alexander said he was thinking of transferring me back to
mending, "but he couldn't because of all the mess that
came up about the union." According to Wheeler, Alexan-
der stated that she could reapply at a later time, and that
she had been a good worker and he was sorry.
On cross-examination, Wheeler admitted that she had
wanted to come back to work in March 1976 but was re-
fused because her past production was too low. She did
return in April. She further admitted that in December
1976 she had been called to Alexander's office and re-
ceived a warning that her production was too low 25 and
that she needed to get her production up.
Respondent's Defense
Alexander testified that he had made up his mind to
discharge Wheeler 2 or 3 weeks prior to her actual dis-
charge because of her consistent low production.2 6 He also
testified that, on the night of Wheeler's termination, she
had stated that she would never be able to make produc-
tion. When Wheeler was questioned by Respondent's
counsel as to whether she had told Alexander that she
could not make production, she first answered that she did
not remember. When pressed as to had she said anything
similar to it, she at first answered, "No, I didn't"; she then
2' Company records show warnings on "4-9-76." "11-9-76," and "2-28-
77."
"' Company records show that for her last 10 weeks of work she had
production percentage figures o' 62. 74, 63, 75, 64, 65, 69, 59. 68, and 75 for
a 10-week average of 67.4 percent and a 5-week average of 67.2 percent.
918
TUNICA MANUFACTURING COMPANY
qualified her answer by stating, "I don't remember saying
it." I credit Alexander's testimony that she said she could
not make production. Company records show that, during
the period of her employment, she never made 100 percent
with 78 percent being the highest figure she ever attained.
Alexander admitted that he spoke with Wheeler about 2
weeks prior to her termination about the possibility of her
being transferred to a different department. However,
when he discussed this with Plant Manager Potter, he was
told by Potter that it would not be allowed because it
would be downgrading the other departments and would
set a precedent. Potter was not going to have an employee
who was not capable of meeting the production standards
in her own department placed in another department.2" Al-
exander, who at the time of testifying was no longer an
employee of Respondent, impressed me as a sincere,
straightforward witness with no ax to grind. I credit
Alexander's testimony and do not credit Wheeler's testi-
mony that Alexander said, "[H]e could not transfer her
back to mending because of all the mess that came up
about the Union."
5. Conclusions
a. Whether Respondent laid off Bradshaw, Watson,
Brigham, or Wheeler for legitimate economic reasons or
for discriminatory and unlawful reasons presents a difficult
question of fact, the resolution of which depends upon a
weighing of all the attendant circumstances "to determine
what motivations truly dominated the employer in laying
off or discharging the employee[s]." N.L.R.B. v. Jones Sau-
sage Co. and Jones Abattoir Company, 257 F.2d 878. 882
(C.A. 4, 1958). In determining this question, it must be
borne in mind that an employee may be discharged "for a
good reason, a poor reason, or no reason at all, so long as
the terms of the statute are not violated." N.L.R.B. v. Con-
denser Corporation of America, 128 F.2d 67, 75 (C.A. 3,
1942). In the absence of discrimination, the Board may not
substitute its judgment for that of the employer in selec-
tions for discharge. "These are matters to be determined by
the management." N.L.R.B. v. Montgomery Ward & Com-
pany, 152 F.2d 486, 490 (C.A. 8, 1946).
Based on the entire record, I find that the General Coun-
sel has failed to meet the burden of establishing by a pre-
ponderance of the substantial credible evidence that the
discharges of the operators involved herein were unlawful-
ly motivated.
b. Company records establish conclusively that Respon-
dent had a tremendous turnover in the number of its em-
ployees for the period of January 1, 1976, through May 2.
During this period, 60 employees were discharged with 31
of that total being discharged for failure to achieve produc-
tion and 15 for poor working habits. Employees totaling
138 quit for miscellaneous reasons such as "Unhappy with
2 Potter testified that he remembered Alexander speaking to him about
Wheeler, as Alexander wanted to determine what company police was as to
transferring an employee who was not making production. Potter testified
that permanent transfers at an employee's request, or for their convenience.
are only made when the operator is achieving production in the job to which
she is already assigned.
job" and "Unhappy here." and 70 employees quit with no
assigned reason. The total turnover, exclusive of 3 deaths,
amounted to 327 employees which meant that Respondent
had a 100-percent turnover of its personnel in this 16-
month period of time. Thus, with this high rate of turnover,
the discharge of these four employees28 was not an un-
usual event.
Also, the Company was coming off its peak season, and
credited evidence established that at the end of the peak
season in the previous year, January 1976, nine employees
had been discharged for failure to achieve production stan-
dards. No employee had been discharged in January or
February for such failure or in December 1976. The last
time prior to March that any production employees had
been discharged was in November 1976 when two employ-
ees, Ethel M. Austin and Daisy Johnson, had been dis-
charged for failure to achieve production.
The production standard set by the Company, and its
goal for each operator per day. was literally 100 percent of
the work assignment. An examination of Respondent's
production records show that some operators exceeded 100
percent of their weekly assignments, although most opera-
tors did not. However, the record is clear that the operators
knew that the standard expected of each employee was 100
percent. as Brigham and Wheeler testified that their super-
visor, O'Neal, had told them that all operators were expect-
ed to make 100 percent and no other. Bradshaw admitted
that Potter and Swan had told her she had to make a cer-
tain percentage of production or be fired. The operators
were keenly aware of their production figures, as these
were calculated daily and pressure was constantly placed
on them by a regular weekly conference with their super-
visor about their production good or bad. Production stan-
dards were an overriding and ominous cloud over the
heads of Respondent's operators long before the Union
made its appearance.
The record does not indicate that Respondent had any
established rule which determined when an employee
would be discharged for failure to achieve production. One
of the reasons for this policy was that the Company would
put up with lower production rates by operators when the
plant was busy and had many outstanding orders. Potter
could not remember what standards he applied in previous
months when he terminated employees. However, in
March he did establish guidelines for that interval of time
consisting of three main elements: (1) four warnings, (2)
production less than 80 percent, and (3) low production
percentages within a time period of the last 5 weeks of
work .29
Thus, when Bradshaw was discharged by Potter, she had
admittedly received four warnings about low production,
February 1971, November 1976 (marked fourth and final),
January, and on March 10. Her 5-week production figure
of 77.8 was lower than 14 other day operators who had
been there since January I and was only greater than that
of Henrietta Watson and Billie Sue Russell, both of whom
were discharged on the same day.
:' A fifth emplosee. Billihe Sue Russell, was also discharged on that date
for lowv production, but no charge was filed on her behalf
:9 Potter later testified that he actuall? reviewed a time period of I5 or 18
weeks for the March disch;argees
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Watson, prior to her meeting with Potter on March 10,
had accumulated three warnings receiving the last on Feb-
ruary 28. Her 5-week production average of 67.3 placed her
as the next lowest producer of the experienced operators
on the day shift. Operators totaling 15 had a higher aver-
age, and she was only ahead of Billie Sue Russell, who was
also discharged on the same day for low production having
a 5-week average of 65.7. Willie Mae Woods and Anne
Pearl Watts, who Watson stated did the same kind of work
she did, had far higher averages than Watson having 5-
week averages of 90.3 and 82.3. respectively.
Brigham's discharge by Night Manager Alexander is the
most difficult of the four discharges to assess, as she was
the only one of the four who could possibly be termed a
union activist. Her name had been on the union letter of
February 28 to Respondent, she had attended two union
meetings, and she had asked two employees to sign author-
ization cards at her machine. She also had the highest pro-
duction rate of the four, 78.7 percent, for the previous 5-
week period. However, she had previously received warn-
ings about low production in March 1976, November 1976,
and on February 28. Brigham's attitude about production,
right or wrong, bothered Alexander on March 9, and he
discharged her. While Brigham was the best producer of
the four discriminatees, she was not one of the leading
producers on her shift. Experienced operators totaling nine
had a higher average than she did, and only four were
lower, Pious, Sanders, Norwood, and Rudd. It is to be not-
ed that Pious, Norwood, and Rudd each had two warnings,
and Sanders had only two prior to March 9 receiving her
third on March 9. Thus, on March 9, Sanders did not meet
one of Potter's current guidelines for discharge, four warn-
ings.
Wheeler was a persistent low producer. In March 1976,
she had wanted to return to work at the plant but permis-
sion had admittedly been refused because her past produc-
tion was too low. When she returned in April, she re-
mained a chronic low producer and received warnings in
April 1976, November 1976. and on February 28. On the
night of her discharge, she told Alexander that she could
not make production and her record amply bore this out.
When she was discharged she was the lowest producer on
the night shift of the 14 operators who had worked at the
plant since January 1.
Respondent's use of written warnings was not some new
tactic born out of the union's organization campaign. The
imposition of warnings had long been used by Respondent,
and their imposition was well known prior to the advent of
the Union as a tool of Respondent to keep production up.
Production records graphically show that warnings about
low production were many and frequent and had been giv-
en not only to low producers but at various intervals to the
very top producers.
It cannot be overlooked that the four discriminatees par-
ticipated in very minimal union activities. Bradshaw and
Wheeler's sole participation was to sign a union card. Wat-
son, whose name appeared in the union notification letter
with Brigham's, attended one meeting and secured one
signed authorization card; Brigham attended one more
meeting than Watson and secured one more signed card. It
is clear that none of these four was the traditional in-plant
organizer and spearhead of a union campaign. It is also to
be noted that the four other binding department employees
named in the Union's February 28 letter were not dis-
charged.
There is no doubt that the Respondent had strong union
animus when the Union commenced its organizing cam-
paign in February and committed numerous violations of
Section 8(a)(l1). I have also taken official notice, as back-
ground, of various violations of the Act perpetrated by Re-
spondent in 1970 in the first Tunica Manufacturing Compa-
ny, Inc. case, 182 NLRB 729 (1970). However, it is to be
noted that no employees were discharged by Respondent
in that case as part of its antiunion campaign.
Accordingly, considering the record as a whole, I find
and conclude that the preponderance of evidence does not
support the allegations of the complaint that the discharges
of Brigham, Bradshaw, Watson, and Wheeler were viola-
tive of Section 8(a)(3) and 8(a)(i) of the Act, and I shall
recommend the dismissal of these allegations. Spotlight
Company, Inc., 192 NLRB 491 (1971).
J. The Discharge of Cooke
1. The facts
Cooke, who was working as a janitor in Respondent's
plant after 8 years of employment, as more fully set forth
in section III,E above, was terminated as of March 17 for
failure to report his absence for 3 days which Respondent
initially alleged as a company rule. General Counsel con-
tends that Respondent's reason for the discharge is pretex-
tual and that Cooke was in fact discharged because of his
union activities.
On Tuesday, March 8,30 Cooke spoke to his supervisor,
Drew Wade, about taking time off to get his teeth pulled
telling Wade, "[M]y teeth are killing me and I've got to
take off and get them pulled." 31 On the following day
Cooke went to see Dr. John D. Rogers, a dental surgeon in
Senatobia, Mississippi, which is about 28 to 30 miles from
Tunica, and received a prescription on that day for pain
relief, and he also received one the next day. On March 10
and 11, Cooke went to a different dental surgeon in Sena-
tobia, Dr. Hugh N. Monteith, and received a prescription
for pain relief each day. Cooke also secured from Dr. Mon-
teith an undated note that read, "Mr. Cooke was in my
office 3/10/77 and 3/11/77 for pain. Also for prescrip-
tion." Cooke, who drove his wife to and from work at the
plant each day (where she worked on the day shift), testi-
fied that on May 11, a Friday, upon arriving at the plant
around 7:15 a.m., he gave Dr. Monteith's note to Wade
telling him that he would have to be off for awhile, al-
though he did not know how long it would be because he
was going to have all of his teeth pulled. 32 Cooke testified
'° This date is established by the testimony of Potter, who testified that he
was advised by Supervisor Wade on March 8 that (Cooke would be absent
the next day to go to the dentist,
I While Cooke was very vague about dates of events. there is no real
dispute about the dates involved in this incident as they are established by
documents or the testimony of Respondent's witness.
" Potter testified that Cooke gave the document to Wade on Monday
morning, March 14. I credit Respondent's date of March 14 as Cooke was
very indefinite and unsure about all dates.
920
TUNICA MANUFACTURING COMPANY
that Wade said, "Okay." Cooke continued to visit dentists
receiving a prescription from Dr. Rogers on March 14.
Cooke testified that he was shopping for the cheapest price
he could get to have his teeth extracted and, on March 15.
went to Dr. Pruitt in Como, Mississippi, from whom he
also received a prescription for pain. Cooke settled on Dr.
Rogers to perform his dental services, and, on March 18,
Dr. Rogers extracted three teeth and gave him two pre-
scriptions, one for antibiotics and one for pain relief.
Cooke testified that on the morning of March 21. a
Monday, he called Plant Manager Potter and told him that
he would like to go back to work. When Potter told him
that he had considered Cooke as having quit, Cooke in-
formed him that he had not quit and had gotten better.
Potter then told him to come to the plant that afternoon
and talk to him and that he might reconsider. Cooke did go
to the plant that afternoon, did talk to Potter, and Potter
again said he would reconsider Cooke's case. Cooke heard
nothing further from Potter.
Respondent's Defense
Potter testified that Respondent follows a 3-day call-in
rule; i.e., when a person misses work for I day without
notice and continues to miss 2 more days without notice,
that person is considered as having quit, termed by the
Company as a voluntary quit. Respondent states in its brief
that "for the period between March 9 and March 14,
Cooke was excused because of a doctor's statement which
he gave to Supervisor Wade. It was his unexcused absence
and failure to notify between March 14 and 17 that caused
his absence to be construed as a voluntary quit."
Potter admitted that on the morning of March 14, when
Cooke gave Dr. Monteith's notice to Wade, Wade in-
formed him that Cooke said "that he had to go back."
From that Monday until the following Monday, Potter
heard nothing further from Cooke or from his wife. On the
morning of March 21, Potter hired a replacement for
Cooke, Derick Engle, at approximately 9 a.m. Engle's time-
card for the week ending March 27 shows that, on the first
Monday of the week, the timecard was punched at 9:22
a.m. Between 10 a.m. and noon, Potter received a tele-
phone call from Cooke, who told him that he had not quit
his job, that he had been to another dentist, and that he
had a piece of paper to prove it.
Potter informed Cooke that, according to his normal
policy, he considered him as having quit on the third day
after he had not heard from him. When Cooke stated that
he had a paper to prove where he was, Potter suggested
that Cooke bring the paper to him, and he would take it
under advisement as to whether or not he would modify his
decision. Cooke arrived at about 4 p.m. that afternoon
bringing with him an undated statement from Dr. Rogers
addressed "To Whome it may concern," which stated that
"Hugh Cooke was in our office for treatment on 3/9/77,
3/14/77, 3/18/T7."
Potter testified that the manner in which Wade informed
him about Cooke going to the dentist was not the correct
way that he should receive messages about people being off
stating, "They should adhere to the rulebook. I encourage
them to adhere to the rulebook, when the opportunity is
there and there is no reason they cannot adhere to the
rulebook."
Respondent's employee booklet contains an entire page
under the caption "Reporting of Absences." In pertinent
part, it reads as follows:
When you know you will have to be absent for any
reason you are required to notify the office prior to the
beginning of the shift, if possible, or no later than the
end of the shift, advising us of the reason, and when
you expect to return.
If it is necessary for you to be absent and we do not
hear from you by the following day, you may be con-
sidered as having quit.
In the case of illness, the Company may require a
doctor's statement in a case of frequent absences.
On the same page it states that sickness of an employee
"will be considered as an excused absence."
After Potter stated that Cooke was terminated because
of the Company's 3-day rule with regard to reporting of
absences, he admitted that he had misstated calling it the
Company's 3-day rule. as it was actually a personal polics
rather than a rule, the employee booklet indicating that a
person may be terminated on the next work day for failing
to report in or notify. He stated that the policy he was
following had been a rule at his previous place of employ-
ment wherein, if a person missed work without notification
and continued to miss 2 more days without notification,
then the person was considered as having quit. Potter ad-
mitted that the employee booklet was still being distributed
to new employees at Respondent's plant and also admitted
that the employees had not been told that there was a com-
pany policy that an employee must call in; and, if you do
not call in over a 3-day period and advise the Company of
your circumstances, you will be discharged.
Potter testified that 47 employees quit in 1976 under this
3-day policy. Respondent's Exhibit 4, a compilation of all
employees separated from employment with Respondent
for the period of January 1976 through April, shows
Cooke's date of termination as March II. which is incor-
rect under any theory. This compilation reflects under the
heading "Manner of Termination" the names of 43 em-
ployees other than Cooke as "Quit (3 day abs.)" and, under
the heading "Reason for Termination." "Company Rule."
However, there is nothing in the record to indicate that anN
of these 43 employees ever questioned or challenged their
termination for any reason including the asserted company
rule reason. The same compilation lists the names of 211
employees as "Voluntary Quits" citing various reasons
such as "another job" and "Unhappy here" and in 69 in-
stances giving no reason.
2. Conclusions
Based upon the entire record, and the facts recited in
this subsection, it is m:s conclusion and I find that Cooke
was discharged for engaging in union activity, and that the
reason advanced bs Respondent for his termination. that
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he violated the Company's 3-day call-in rule, is a pretext to
disguise the real reason.
a. Cooke was a leading in-plant organizer, whose name
not only was listed on the Union's letter of February 28 to
Respondent, but who actively participated in the Union's
organizing campaign. After receiving a number of blank
authorization cards, he had contacted employees at their
homes, solicited workers at different places in the plant
and on the company parking lot, and had secured a num-
ber of signed union cards. This, of course, does not shield
him from being discharged for cause. However, dismissing
an outstanding proponent of a union often tends to dis-
courage other employees from becoming interested in a
union. N.L.R.B. v. Longhorn Transfer Service, Inc., 346
F.2d 1003, 1006 (C.A. 5, 1965).
b. Respondent had knowledge of Cooke's union activi-
ties, as General Manager Rubin testified that, several days
after his February 23 speech, two employees had come to
him with unsigned union cards that had been given to them
by Cooke when he tried to secure their signatures. Rubin
admitted that the reason for his calling Cooke to his office
thereafter was "By way of letting Mr. Cooke know that I
was aware of his activities." Not only did Rubin let Cooke
know that he knew of Cooke's activities on behalf of the
Union, but, as he admitted, he let Cooke know that he was
disappointed in his working on behalf of the Union.
c. Respondent displayed strong antiunion animus. This
in itself is inadequate to justify a finding that Respondent
violated the Act because Section 8(c) of the Act guarantees
to an employer freedom to be unalterably opposed to
unions and to express such a sentiment to his employees.
N.L.R.B. v. Threads, Inc., 308 F.2d I (C.A. 4, 1962). Fur-
ther, engaging in union activity is not a guarantee against
being discharged for cause. Nevertheless, an employer's
dislike for unions communicated to his employees is a fac-
tor which may be evaluated, along with other pertinent
evidence, in arriving at the actual cause of the employee's
discharge. Maphis Chapman Corporation v. N.L.R.B., 368
F.2d 298, 304 (C.A. 4, 1966).
d. Cooke was discharged during the height of the
Union's campaign just several weeks after the filing of the
petition by the Union for an election. While I recognize
that this, without more, does not prove that no cause ex-
isted for his discharge, nevertheless I find that this may be
considered in determining the true motive for the termina-
tion of Cooke. It has long been recognized that the timing
of a discharge is persuasive evidence as to an employer's
motivation. N.L.R.B. v. Montgomery Ward & Co., Inc., 242
F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829.
e. Respondent's stated reason for Cooke's discharge
does not stand scrutiny. When Potter was asked for the
first time what was the reason for Cooke's termination, he
simply and clearly stated that it was because of "The Com-
pany's three day rule with regard to the reporting of ab-
sence." However, subsequent questioning revealed that the
Company did not have a 3-day rule at all; that Potter per-
sonally had a 3-day policy which, as Potter admitted, had
never been communicated to the employees. As far as the
employees knew, their absences were to be handled in ac-
cordance with the vague provisions of page 8 of the em-
ployee booklet.
A fair examination of the "Reporting for Absence" sec-
tion of the booklet does not disclose strong and ominous
words providing that an employee will be discharged if he
or she does not contact the Company on the day following
the first day absent. The language is mild and ambiguous
reading that, if the Company does not hear from the em-
ployee on the day following the absence, "You may be
considered as having quit." (Emphasis supplied.)
Respondent in its brief does not challenge the legality of
Cooke's absence from work for the period of March 9
through March 14 because of the written report from Dr.
Monteith that Cooke gave to Wade on March 14. Yet,
Cooke's conduct during this period of time did not con-
form to a 3-day or I-day policy, as he simply did not call
the plant or notify it in any other way on March 9, 10, I 1,
or 12. It is noteworthy that, when Wade accepted Dr.
Monteith's report on March 14, Wade did not warn Cooke
that he was in violation of any Company rule, nor did he
inform Cooke that in the future he should conduct himself
in any different manner. Wade acted in a realistic and hu-
mane manner when Cooke advised him that he was going
to have to have all of his teeth pulled out by accepting the
dentist's report and saying, "Okay." This was a ratification
and approval of Cooke's procedure by his supervisor.
Cooke was following the same procedure during this pe-
riod of time as he had followed in the previous week. He
had apprised his supervisor of his teeth problem, this time
buttressed by Dr. Monteith's report of pain and prescrip-
tions, and he was actually going to dentists to get relief.
While Cooke's activities in going to three different dentists
in such a short period of time is undoubtedly unusual, the
numerous prescriptions for pain relief are proof that the
man was in great pain. It is also understandable, as he was
shopping on a janitor's pay, that he shopped for the cheap-
est price he could get in the area to have his teeth pulled,
When Cooke called Potter on the morning of March 21
about his job, Potter did not say flatly that he had been
terminated. Potter told Cooke to bring the paper in that
Cooke said he had to prove where he had been, and that he
would review it and "the situation." That afternoon Cooke
did bring in a dental surgeon's report showing that he had
received treatment from Doctor Rogers as recent as the
previous Friday, March 18. 33
In other words, Cooke followed the same procedure for
his absence of March 15 through March 21 as he had fol-
lowed for his March 9 through March 14 absence, and the
conduct that was not a violation of Company rules before
was now held to be a violation meriting discharge.
While it is true that the booklet reads that for any ab-
sence exceeding three "a leave of absence should be re-
quested," it does not couple with that statement any penal-
ty to be imposed if the leave is not requested. The booklet
does state that "Unexcused absence can be a cause for
written warning and after such warning, a cause for dis-
missal." No warning, written or otherwise, was issued to
Cooke to show that the Company considered any of his
absence from March 9 to March 21 as unexcused. Yet, it is
33 That Cooke was still in pain and needed dental care is illustrated by
G.C. Exh. 16k, c, and a, records of prescriptions prescribed by Dr. Rogers
for Cooke on March 26 and 31 and April 7.
922
TUNICA MANUFACTURING COMPANY
abundantly clear that Respondent was a vigorous and con-
stant user of written warnings when it deemed that warn-
ings were called for as shown by its numerous warnings to
sewing machine operators concerning their failure to com-
ply with production standards.
f. Finally, it is not essential in order to find Cooke's
discharge to be discriminatory that it resulted solely from
his union activity. It is sufficient to find such discrimina-
tion, notwithstanding that a valid cause may have existed
for his termination, if a substantial or motivating ground
for his discharge was his union activity. N.L.R.B. v. Whitin
Machine Works, 204 F.2d 883, 885 (C.A. 1, 1953); N.L. R.B.
v. Lexington Chair Company, 361 F.2d 283, 295 (C.A. 4,
1966). I find that a substantial or motivating reason result-
ing in his dismissal was his union activity, and the said
"union activity weighed more heavily in the decision to fire
him than did dissatisfaction with his performance." Whitin
Machine Works, supra at 885.
K. Interference, Restraint, and Coercion
The complaint alleges 25 specific incidents of violations
of Section 8(a)(1). This section of the Act prohibits an em-
ployer from interfering with, restraining, or coercing its
employees in the excercise of their rights guaranteed in
Section 7 of the Act. The test applied in determining
whether a violation of Section 8(a)(l) of the Act occurred is
"whether the employer engaged in conduct which, it may
reasonably be said, tends to interfere with the free exercise
of employee rights under the Act." Electrical Fittings Cor-
poration, a Subsidair) of I-T-E Imperial Corporation, 216
NLRB 1076 (1975).
The evidence relating to Rubin's speech concerning the
violations alleged in a, b, c, d, and e of paragraph 7 of the
complaint, and my conclusions thereto, have been set forth
in sections B and C above. The evidence and conclusions
as to paragraphs 16(a) and (b) of the complaint, the new
no-solicitation rule, have been set forth in section C above.
I now turn to my conclusions on the balance of the al-
leged independent violations of Section 8(a)() based on
my findings set forth hereinbefore, stipulations of the par-
ties, and admissions. Respondent, in its amended answer,
admitted various allegations of the complaint, and I set
those admitted sections forth in the same order, using the
same complaint paragraph designation, as they were plead-
ed. I thereafter conclude with the balance of the indepen-
dent allegations also in the order in which they were plead-
ed.
7(h). Rubin's admitted creation of an impression of sur-
veillance of the union activities of Respondent's employees
on or about February 25 is an interference with the em-
ployees' rights to engage in union activity and organization
and is a violation of Section 8(a)(l) of the Act.
7(k). Rubin's admission of his telling Greene on or
about March I that he was surprised that Greene had
agreed to assist the Union and could not believe that he
would do such a thing is buttressed by Greene's testimony
that Rubin told him that he "was doing him wrong" by
supporting the Union. Such a remark by the chief execu-
tive officer of a corporation, with his power to fire and to
grant raises, to a rank-and-file employee is coercive and a
violation of the Act..
9(a) and (b). Supervisor Joan Swan's admitted interro-
gation of Joyce Bradshaw on or about February 23 con-
cerning her union membership and sentiments and telling
Bradshaw that Respondent's employees would lose their
jobs if the Union succeeded in its organizing campaign is
patently interference with the employees' Section 7 rights
and is a violation.
10. Supervisor Beatrice O'Neal's admitted solicitation of
an employee on or about February 24 to ask other employ-
ees of Respondent to withdraw their designation of the
Union as their exclusive bargaining representative and to
ask other employees of Respondent to oppose the Union is
raw interference with the employees' rights and is a viola-
tion.
11 and 12. Supervisor Bertha Terry's admitted activity
on or about February 24, in soliciting an employee to with-
draw her designation of the Union as her bargaining repre-
sentative as well as to oppose the Union. and Terry's ad-
mitted interrogation of an employee concerning the
employee's union membership, sentiments, and desires is
interference with the employee's rights and a violation of
the Act.
14(a) and (b). Supervisor Ron Alexander's admitted in-
terrogation on or about March 10 of an employee concern-
ing that employee's union membership and sentiment and
his further interrogation of an employee concerning the
union membership and sentiments of other employees of
Respondent is interference with that employee's rights and
a violation of the Act.
15. Supervisor Beatrice O'Neal's admitted solicitation of
rank-and-file employees on or about February 24 during
work time and in work areas to sign a petition which read
that the signers thereof did not want a union at Respon-
dent's plant and to "Forget any' cards that we have signed"
is basic interference with the employees' rights and a viola-
tion.
7(f), (g). (i). and (j). Since I have already credited
Cooke's testimony as to the contents of his conversations
with Rubin on or about February 25, the date set by Ru-
bin, it follows that Rubin's interrogation of Cooke as to his
use of union cards and Rubin's pressuring Cooke to ask
other employees to request their signed authorization cards
back from the Union is interference with Cooke's Section 7
rights and a violation of Section 8(a)(l). I also find Rubin's
threat to Cooke that, if he did not stop the Union cam-
paign, he would have Cooke and his wife thrown out of
Tunica County and Rubin's request of Cooke that he turn
over to Rubin six or eight union authorization cards is
coercive and a violation of the Act.
8. The evidence presented by General Counsel as to the
mailing by registered mail and receipt of the antiunion pe-
titions by the Union at its Memphis address, based on
Postmaster Webb's affidavit and stipulations with no deni-
als by Rubin or Potter, allows the reasonable inference,
which I draw, that Rubin placed the antiunion petitions in
the envelope mailed by him and received by the Union.
Such meddling in the employees' rights to organize is plain-
ly a breach of Section 8(a)( ).
13. I do not find that Supervisor Wade's statement to
Cooke in the warehouse was a violation of the Act, as
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wade was obviously giving Cooke a friendly off-the-record
warning to be careful about his conduct especially if he
imbibed in beer, or whiskey, even to the extent of one drop.
Wade's remark was a confidential statement made to
Cooke for his own good and future guidance so as to avoid
any trouble with the local sheriff. I would dismiss this alle-
gation of the complaint.
14(c). In reviewing the discharge of Rosetta Lumpkin
Wheeler in section 1,(4) above, I do not credit Wheeler's
testimony that, at the time of her discharge, Alexander told
her that he was thinking of transferring her back to mend-
ing, but he could not because of all the mess that had come
up about the Union. Alexander, who no longer worked for
Respondent at the time of the hearing, was an impressive,
sincere witness, and I have credited his denial that he made
any such statement. I would therefore dismiss this allega-
tion of the complaint.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Tunica Manufacturing Company, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 19, Distributive Workers of America-DWA, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening employees that if they selected the
Union to represent them the Company would close its
plant, and they would lose their jobs; by expressing to its
employees the futility of unionism; by soliciting its employ-
ees to withdraw their designations of the Union as their
representative; by announcing and adopting a new rule for
the purpose of preventing its employees from discussing
the Union; by coercively interrogating employees concern-
ing their union membership, sentiments, and desires and
the union membership, sentiment, and desires of other em-
ployees; by soliciting employees to withdraw their designa-
tions of the Union as their bargaining representative and to
ask other employees to oppose the Union and by soliciting
employees to sign an antiunion petition; by preparing an
antiunion petition, soliciting signatures of its employees to
such petition, and mailing the petition to the Union re-
questing that the Union discard any cards such signatories
had executed for the Union; by creating the impression of
surveillance of the union activities of its employees; by
threatening to throw an employee and his spouse out of the
county; by demanding union authorization cards from an
employee; by telling an employee that he was doing the
vice president wrong by assisting the Union; and by adopt-
ing and maintaining a new no-solicitation rule for discrimi-
natory purposes, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of their
rights guaranteed in Section 7 of the Act and has engaged
in unfair labor practices in violation of Section 8(a)(1) of
the Act.
4. By discriminatorily discharging Hugh Cooke on
March 17, thereby discouraging membership in the Union,
Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(l)
and (3) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act.
Respondent's having discriminatorily discharged em-
ployee Hugh Cooke, I find it necessary to order Respon-
dent to offer him full reinstatement, with backpay from the
date of his discharge to the date of a proper offer of rein-
statement, computed on a quarterly basis plus interest at 7
percent per annum as prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977). 34
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 35
The Respondent, Tunica Manufacturing Company, Inc.,
Tunica, Mississippi, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting Local 19, Distributive Workers of
America-DWA, or any other union.
(b) Threatening employees that Respondent will close
the plant if the Union is successful in its organizing cam-
paign.
(c) Threatening employees with loss of jobs if the Union
is successful in its organizing campaign.
(d) Expressing to employees the futility of unionism.
(e) Soliciting its employees to withdraw their designa-
tions of the Union as their bargaining representative, re-
questing its employees to ask other such employees to op-
pose the Union, and soliciting its employees to sign
antiunion petitions.
(f) Promulgating or maintaining a rule forbidding em-
ployees to solicit for a union at times when they are not
actually working or applying any rule against solicitation
for a union in a discriminatory manner.
(g) Coercively interrogating employees about their
union activities and the union activities of their fellow em-
ployees.
(h) Creating the impression of surveillance of the em-
ployees' union activity.
(i) Threatening to have employees and their spouses put
out of the county for not stopping the Union's organizing
campaign.
3See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
35 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
924
TUNICA MANUFACTURING COMPANY
(j) Coercively demanding that employees turn over to
Respondent any union authorization cards.
(k) Assisting its employees in requesting withdrawal of
their designation of the Union as their representative by
mailing such employees' withdrawal request to the Union.
(1) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Hugh Cooke immediate and full reinstatement
to his former job or, if the job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights and privileges previously enjoyed,
and make him whole for his lost earnings in the manner set
forth in "The Remedy."
(b) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Tunica, Mississippi, copies of the
attached notice marked "Appendix." 36 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 26, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure 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 Respondent
has taken to comply herewith.
IT 15 ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
36 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTI(tE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Having found after a hearing that we violated the Federal
law, the National Labor Relations Board has ordered us to
post this notice.
WE WILL NOT threaten our employees that if the
Union is successful in its organizing campaign the
plant will close, and they will lose their jobs.
WE WILL NOT tell employees that unions are worth-
less.
WE WILL NOT ask our employees to withdraw their
designation of the Union as their representative or re-
quest them to ask other employees to oppose the
Union.
WE WI.L NOT ask employees to sign antiunion peti-
tions.
WE WILL NOT maintain or enforce a rule forbidding
employees to solicit for a union at times when they are
not actually working, nor will we apply any rule for-
bidding solicitation for a union in a discriminatory
manner.
WE WILL NOT coercively interrogate our employees
concerning their union activities and those of other
employees.
WE WILL NOT give employees the impression that
union activities are under surveillance.
WE WILL NOT threaten employees and their spouses
that they will be put out of the county if they do not
stop the Union's organizing campaign.
WE WILL NOT request employees to turn over to us
any union authorization cards.
WE WILL NOT assist employees to request the with-
drawal of their designation of the Union as their bar-
gaining representative.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any and all such activities,
WE WILL offer full reinstatement to Hugh Cooke to
his former job or, if that job no longer exists, to a
substantially equivalent one, with backpay plus inter-
est thereon.
TUNI(A MANUFA(TTLRING COMPANY, INC
925