Visador Co.

National Labor Relations Board - Board Decisions

Aug 8, 1991

303 N.L.R.B. 1039 (N.L.R.B. 1991)

1039
303 NLRB No. 167
VISADOR CO.
1 On March 12, 1991, the judge issued an Erratum.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
No exceptions were filed by the Respondent to the judge’s finding that it
violated Sec. 8(a)(1) by disparately applying its no-solicitation/distribution rule
in warning employees Jessie Thomas and Dexter Harris against the distribution
of union pencils, and by creating the impression of surveillance by Supervisor
Donald Harris Jr.’s statement to employee Michael Henderson that another em-
ployee was keeping Harris informed about union meetings.
1 All dates are 1990 unless otherwise indicated.
2 Respondent agrees that the individuals named were supervisors, but denies
they are Respondent’s agents. It is well settled that conduct of a supervisor
is imputed to his or her employer.
3 Johnny Harris left Respondent’s employment about 2 weeks after the
Union lost a representation election held among Respondent’s employees on
or about August 16.
Visador Company and United Steelworkers of
America, AFL–CIO, CLC. Case 11–CA–13929
August 8, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 5, 1991, Administrative Law Judge
Claude R. Wolfe issued the attached decision.1 The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that, the Respondent, Visador Company, Mar-
ion, Virginia, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Michael W. Jeannette, Esq. and Donald R. Gattalaro, Esq.,
for the General Counsel.
C. Thomas Davis, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me on December 12 and 13,
1990, at Marion, Virginia, pursuant to charges and amended
charges filed and served on July 19 and August 29, 1990,1
and complaint issued on August 31 and amended at hearing
alleging that Visador Company (Respondent) violated Sec-
tion 8(a)(3) and (1) of the National Labor Relations Act (the
Act) by discharging James Ray Powers and issuing a written
disciplinary warning to Ernest Powers, and also violated Sec-
tion 8(a)(1) of the Act by creating the impression that em-
ployee union activities were under surveillance, promulgating
an oral rule prohibiting employees from talking to each other
at work, interrogating employees concerning their union ac-
tivities and sympathies, announcing that it intended to en-
force its no-solicitation/no-distribution rule, and threatened
unspecified reprisals for engaging in solicitation and distribu-
tion. Respondent denies the commission of unfair labor prac-
tices.
On the entire record, and after considering the demeanor
of the witnesses and the posttrial briefs of the parties, I make
the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
The complaint alleges, Respondent admits, and I find Re-
spondent is now, and has been at all times material, a Dela-
ware corporation with a plant located at Marion, Virginia,
where it manufactures wooden stair parts, and where it re-
ceived during the 12 months immediately preceding the
issuance of the complaint, a representative period, goods and
materials valued in excess of $50,000 directly from points
outside the State of Virginia. Respondent is now, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
United Steelworkers of America, AFL–CIO, CLC (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
III. SUPERVISORS AND AGENTS
At all times material, the following-named persons occu-
pied the positions set opposite their names and have been,
and are now, agents2 of Respondent, acting on its behalf, and
are supervisors within the meaning of Section 2(11) of the
Act:
Charles R. Neitch Plant Manager
Timmy Lee Fout Production Manager
Donald George Harris Ripsaw Supervisor
Sr.
Jimmy Ray Patton Rough Mill Supervisor
Edith Byrd Parking and Utilities
Johnny Harris3 Finish and Glue Supervisor
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint sets forth allegations of conduct occurring
in the context of a union effort to organize a unit of Re-
spondent’s employees. The involvement of the Union with
these employees was initiated by James Ray Powers (Jimmy
Powers) on April 1 or 2 when he contacted James
Cunningham, a union organizer, and requested his assistance
in gaining employee support for union representation. There-
after, James Powers served as the Union’s key committee
person working in the plant, attended union meetings, wore
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 I have credited Henderson, a former employee who left Respondent’s em-
ployment voluntarily for more attractive employment. His account was
straightforward, certain, and believable. Harris merely responded ‘‘No’’ to the
following question posed by Respondent’s counsel:
Q. Did you ever tell Michael Henderson that Reese Maloyed was tell-
ing you things about the Union? Such as when and where Union meetings
were being held and who was attending?
Harris bare ‘‘No’’ in reply to the suggestive question is not persuasive when
weighed against Henderson’s apparently candid account. Maloyed testified on
other matters, but was not asked and did not testify concerning whether he
made such reports to Harris or anyone else.
5 The facts relied on in this instance are those related by Powers in some
detail. His testimony on this conversation appeared to be uncontrived and had
the ring of truth. Accordingly, it is credited over the bare denials of Patton
to compound questions put by Respondent’s counsel.
6 Powers’ detailed testimony concerning what was said is credited over
Byrd’s bare denials in response to leading questions.
a union T-shirt to work, helped organize a plant committee,
handed out pencils bearing the Union’s message, and solic-
ited employees to sign cards authorizing the Union to rep-
resent them. This activity continued until he was discharged
on July 13. All union activity apparently stopped after the
Union lost a representation election conducted among Re-
spondent’s employees on August 16. During the period of
the Union’s campaign, April to August, the employees seem
to have divided into two groups, one for and one against
union representation. Some employees wore union T-shirts,
others wore antiunion T-shirts, and there was some harass-
ment of those whose stance they opposed by members of
both camps. This then sets the context within which to con-
sider the allegations made by the General Counsel.
The Creation of an Impression of Surveillance
The General Counsel offers several incidents as instances
showing Respondent has conveyed an impression it was
monitoring employee union activities. Some do and some do
not. One that does occurred in mid-June when Donald Harris
Jr., supervisor in the ripsaw department, advised Michael
Henderson, ripsaw operator, that employee Reese Maloyed
was telling him where union meetings were held, who was
present, and what they were doing.4 Such a statement clearly
tended to create the impression Respondent was engaged in
gathering such information via employee informants, and
violated Section 8(a)(1) of the Act because it reasonably
tended to interfere with, restrain, and coerce Henderson in
the exercise of the rights guaranteed him in Section 7 of the
Act.
I conclude, however, that Donald Harris did not create
such an impression or otherwise violate the Act in July
when, in response to James Powers’ advice that he was on
the Union’s committee, he told James Powers that he had
heard Powers was on that committee. A mere recitation that
he had heard of Powers’ involvement does not suggest that
Harris gained this information through the use of surveillance
or that Respondent was employing such techniques.
James Powers claims that after he told Harris of his in-
volvement Harris followed him more than usual when he
emptied scrap buggies and also followed him into the rest-
room on several occasions and remained there until Powers
left. Employee Bryant Darnell recalls that on a couple of oc-
casions a week apart Harris entered the restroom imme-
diately after Powers did and left the restroom immediately
after Powers did. Harris denies following Powers into the
restroom. Here, we are dealing with conclusions rather than
persuasive probative evidence. The mere fact the Harris and
Powers visits to the restroom coincided or overlapped cannot,
without more, be reasonably held to create any impression
Harris was engaged in surveillance. Such flimsy evidence re-
quires no rebuttal. Similarly, Powers’ conclusion that Harris
was following him more than usual when he emptied scrap
acknowledges that Harris had a practice of at least occasion-
ally following Powers on such errands. It is not surprising
that Powers, having openly declared his prominence in the
Union’s campaign, would view the slightest deviation by
Harris from routine with suspicion, and then subsequently
convert that suspicion into certainty. Combining this factor
with the fragile evidence presented and the further cir-
cumstance that Powers is not always a credible witness, a
factor discussed below in connection with his ultimate dis-
charge, I am persuaded that this ‘‘following’’ by Harris has
not in fact been shown to be surveillance or anything other
than normal behavior, and cannot be reasonably construed as
evidence of an effort to create an impression of surveillance.
Jimmy Patton is the supervisor of the rough mill in Re-
spondent’s facility. Ernest Powers is a block saw operator
under Patton’s supervision. On June 7, the day after he at-
tended a union meeting where the Employees’ Stock Option
Plan (ESOP) was discussed, Powers was working when Pat-
ton approached him and asked what Powers had found out
about the ESOP. Powers gave him a noncommittal answer.
I agree with the General Counsel that Patton’s question con-
cerning ESOP put Powers on notice that Patton was aware
that he had attended a union meeting and ESOP had there
been discussed. By so doing, Respondent, by its agent Pat-
ton, created an impression it was keeping union meetings, at-
tendance at those meetings, and the subject matter discussed
at those meetings under surveillance. This violated Section
8(a)(1) of the Act for that reason and, to the extent Patton
was inquiring into what was discussed at that meeting re-
garding the ESOP, also violated Section 8(a)(1) as interroga-
tion concerning employee union activities.5
On or about July 12, in the evening as they left work, Pat-
ton asked Ernest Powers if he wanted to go with Patton.
Powers said he did not because he was going to a meeting.
Powers then asked where Patton was going. This drew the
response that Patton was going to a whorehouse and Powers
was going to get ‘‘f—d whichever place he want.’’ Here
again I credit Powers’ testimony over the bare denial of Pat-
ton to a summation of Powers’ testimony. Patton’s comments
were not in the best of taste, but his rather vulgar expression
of opinion is not interrogation but an answer which seeks no
answer, and his apparent surmise the meeting was a union
meeting does not ipso facto create the impression union ac-
tivities were under surveillance.
Mary Lynn Powers was active in supporting the Union,
and openly demonstrated that support by wearing decals, but-
tons, and T-shirts bearing prounion messages. One day in
mid-June she had a conversation with Edith Byrd, her super-
visor,6 which began with Byrd stating she was aware what
side Powers was on, could not question her about it, but
would like to explain why she opposed the Union, and would
also like to change Powers’ mind. Powers responded that her
mind was made up. Byrd said she respected Powers’ deci-
sion, but she would like Powers to keep it to herself because
it was upsetting the department and Powers should not go
1041VISADOR CO.
7 See Price’s Pic-Pac Supermarkets, 256 NLRB 742, 746–747 (1981), and
Our Way, Inc., 268 NLRB 394, 395 (1983).
around talking about the Union and trying to get employees
to support the Union by signing a union card ‘‘and stuff like
that.’’ I fail to see any creation of an impression of surveil-
lance in this exchange. Powers had publicly identified herself
as a union activist by wearing items so advertising. Accord-
ingly, when Byrd said she knew where Powers stood on the
Union she was not intimating there was spying on the em-
ployees’ union activities or anything of the sort. She was
merely stating what Powers had publicly made obvious, that
Powers was actively engaged on behalf of the Union. Byrd
clearly was, however, instructing Powers, who was under
Byrd’s supervision, to refrain from talking to employees
about the Union. Such an instruction without further defini-
tion as to when and where such conversation was enjoined
is far too broad and exceeds any valid no-solicitation rule,
whether construed as an arbitrarily imposed rule for all em-
ployees or a direction delivered only to Powers.7 In either
case it had a reasonable tendency to interfere with, restrain,
and coerce Powers, and any other employees to whom it may
be applicable, in the exercise of the statutory right to form,
join, or assist labor organizations, and therefore violated Sec-
tion 8(a)(1) of the Act.
B. Threat of Discharge
Bryan Richardson, who was an employee in Respondent’s
glue department until he left in September 1990, gave
uncontroverted and credited testimony that Johnny Harris, a
statutory supervisor at the time, told him in late June that he
was going to have to get rid of employee Sharon Darnell if
she did not quit talking about the Union and other problems
in the plant. This statement by Harris of his, and therefore
Respondent’s, willingness to discharge an employee for talk-
ing about the Union put Richardson on notice it was risky
business to engage in such conversations if he valued his job.
Accordingly, I find Harris’ statement that he might have to
retaliate against Darnell if she continued with her discussions
concerning the Union violated Section 8(a)(1) of the Act be-
cause it reasonably tended to restrain and coerce Richardson
in the exercise of his statutory right to engage in protected
union activity.
C. Statements Concerning Solicitation and Distribution
The Employees Handbook distributed to all employees
contains the following rule which is not alleged to be viola-
tive of the Act:
NO-SOLICITATION/DISTRIBUTION RULE
Solicitation and distribution of literature by non-
employees on company property is prohibited.
Solicitation by employees on company property is
prohibited when the person soliciting or the person
being solicited is on working time. Working time is the
time employees are expected to be working and does
not include rest, meal or other authorized breaks.
Distribution of literature by employes on company
property in nonworking areas during working time, as
defined above, is prohibited.
Distribution of literature by employees on company
property in working areas is prohibited.
There is credible testimony from Michael Henderson that Re-
spondent has, despite the above rule, tolerated solicitation by
employees on their worktime in connection with raffle tick-
ets, race pools, punchboards, Tupperware, oranges, candy,
and flowers for funerals. Henderson further recalls, Patton
does not deny, and I conclude that Patton, a supervisor, was
soliciting with punchboards during worktime. Jessie Thomas
relates that she has observed employees selling Avon prod-
ucts and candy bars during worktime, and she has sold raffle
tickets on company time to both employees and her super-
visor. Dexter Harris also recalls employees selling candy
‘‘and stuff like that’’ while at work, and further recalls see-
ing a supervisor being solicited to buy a candy bar. The fore-
going uncontroverted testimony by employees concerning so-
licitation in spite of the printed rule persuades me the rule
has rather widely been honored in the breach. Respondent ar-
gues, however, that the General Counsel has not shown em-
ployees were not disciplined for rule violations, and therefore
has not proved an essential element of his case which, as ex-
plained below, alleges a discriminatory application of the
rule. It seems to me that the shoe is on the other foot. The
General Counsel has, prima facie, shown what appear to be
employee violations of the written rule even in the presence
of supervisors, and has shown similar conduct by at least one
supervisor, all without any indication of discipline therefor.
I do not know of any requirement the proponent of a cause
is required to rebut a defense not made. Respondent has
proffered no evidence of discipline for any of the solicitation
mentioned in the record other than for the distribution of pro
and antiunion materials. To the extent the record indicates
warnings to both employee factions it merely means that
there is a serious question concerning the validity of any
such warnings if the only time they are issued is to deter pro
and antiunion distribution. This is so because sincere
antiunion activity by employees is as much a Section 7 right
protected from disparate application of a work rule as
prounion action. The record does not show that Respondent
was responsible for the antiunion conduct of employees even
though it may have welcomed it.
The General Counsel’s allegation of disparate application
of the written rule is based on the treatment of Jessie Thom-
as and Dexter Harris on June 26. On that day Thomas gave
some pencils bearing the Union’s insignia to Harris for fur-
ther distribution. Harris states he had distributed many such
pencils. The Thomas to Harris pencil transfer was detected
by Respondent. They were called into the office of Charles
Neitch, the plant manager, where he advised them they were
in violation of the handbook rule set forth above because
they had exchanged the pencils on company time, and
warned them not to do it again because he was going to en-
force the rule.
Charles Neitch agrees that the two were orally warned for
passing out union materials on the job during working time.
He also agrees that he called their attention to the no-
solicitation/no-distribution rule, and stated it would be
obeyed. He states, without contradiction, and I conclude he
told the same thing to Bill Gillespie, another employee, when
he orally warned Gillespie for passing out hats bearing an
antiunion message. Production Manager Timmy Fout was
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The General Counsel emphasizes that Powers was transferred by Patton
from his usual station to the chop saw on July 27 which he had not worked
on for quite some time. I see no unusual significance in this assignment. Pow-
ers agrees the chop saw was easier to run than his other saw and Patton did
need his services on the chop saw that day.
present during the warning of Harris and Thomas. He agrees
the warning was for exchanging pencils in a work area on
company time and was in accord with the written rule of
which the two employees were aware. Fout also recalls oral-
ly warning Gillespie and Charles Neitch’s son Chuck for ex-
changing antiunion hats.
The evidence shows that the warnings to the four employ-
ees concerning pro and antiunion conduct were extraordinary
because there is no evidence of other warnings for violations
of the rule which appear to have been common occurrences.
What Respondent did, I am convinced, was apply the rule to
both factions, but this does not obscure the fact the rule was
apparently enforced only against employees engaged in union
related activity, pro and con, while other violations of the
rule not involving such activity was tolerated. I make no
finding of violation concerning the warnings to Gillespie and
the younger Neitch because the General Counsel neither al-
leges in the complaint nor argues in his posttrial brief that
these warnings violated the Act notwithstanding their treat-
ment was as disparate when viewed against the record of the
rule’s enforcement presented as that of Harris and Thomas.
I merely conclude that by disparately applying the rule to
and warning Harris and Thomas for engaging in union activ-
ity Respondent engaged in conduct reasonably tending to
interfere with, restrain, and coerce employees in the exercise
of rights guaranteed them by Section 7 of the Act. This con-
duct violated Section 8(a)(1) of the Act. One could argue, as
the General Counsel does, that an adjuration not to repeat the
conduct is an implied threat of unspecified reprisals. I need
not linger long on this contention because it merely argues
that which was a warning was also a threat. The remedy is
the same in any case and there is little profit in speculating
concerning how many ways conduct might violate Section
8(a)(1). A cease-and-desist order remedies them all without
need for further discussion.
D. The Warning of Ernest Powers
According to the complaint, Respondent violated Section
8(a)(3) and (1) of the Act by issuing a written warning to
Ernest Powers on July 27 and thereafter refusing to rescind
it. The circumstances giving rise to the warning were most
credibly related by Supervisor Jimmy Patton and saw oper-
ator Norma Joan Musser. I have not credited Patton’s recol-
lections over those of Powers with respect to incidents pre-
viously discussed in this decision, but here Patton’s testi-
mony was most convincing and is supported by Musser who
was a determined, straightforward, and persuasive witness
forcefully and, I believe, truthfully relating conduct of Ernest
Powers which she clearly believed was designed to unnerve
her because she was not a union supporter. The General
Counsel suggests that his witnesses Powers and Bryant
Darnell are entitled to credit because they are current em-
ployees and therefore unlikely to deliberately falsify, citing
Uarco Industries, 197 NLRB 489, 491 (1972). The general
principle vis-a-vis employee witnesses still in the employ of
an employer is sound, but the facts here do not warrant its
application. It is difficult to comprehend how the testimony
of a witness testifying in support of a charge that he or she
has been unlawfully treated is not testifying in his or her
own interest as Powers here clearly is. That this may well
be and probably is against the Employer’s interest does not,
in my view, warrant giving his or her testimony extra weight.
Turning to Darnell, the principle is inapplicable because his
testimony, as will be seen, is ambiguous and noncommittal
at best, and is not particularly contrary to Respondent’s inter-
est.
Patton credibly testifies that Powers was working on the
chop saw8 on July 27 when Patton, sitting at his desk with
his back to the saw operators, heard someone ‘‘yell real loud
two or three times.’’ He kept turning around looking for the
source of the shouts until he detected Powers ‘‘yelling at the
top of his lungs.’’ Patton continues that he told Powers to
quit yelling. To which Powers merely grinned. Patton then
proceeded to move two barrels of trash out of the area. He
was about 30 feet or so from Powers’ work station when he
heard someone yell 12 to 15 times. He then detected Powers
in the act of yelling, and issued a written warning to Powers
for this conduct.
Musser was working at a saw about 3 feet in front of
Powers on July 27. She testified that Powers ‘‘kept scream-
ing at the top of his voice, as loud as he could scream. And
he kept screaming and screaming.’’ She recalls Powers said
nothing, but just yelled. She estimates she heard somewhere
between 75 and 100 yells from Powers, and she opines Pow-
ers was yelling to irritate her because he knew she was
against the Union.
Darnell, who was working about 6 to 10 feet behind Pow-
ers heard someone yelling, could not identify who it was,
and is not certain whether it was one or more persons. He
does not exclude Powers from this assessment.
Powers says on direct examination that he was given a
written warning for ‘‘excessive talking,’’ but amends this on
cross-examination to ‘‘talking and yelling.’’ He concedes he
was first given an oral warning, but denies yelling. He agrees
that Musser could hear and observe what he did.
Neither party saw fit to proffer the actual warning as evi-
dence. Absent the benefit of that document, I credit Patton
the oral warning was for talking and yelling, but it was the
yelling which prompted the written warning. Given Ernest
Powers’ public expressions of union support, including the
wearing of shirts and buttons urging union support, Patton’s
knowledge of that activity, and Patton’s coarse derogatory re-
marks concerning what Powers would derive from union
meetings, it seems fair to conclude Patton was not pleased
with Powers’ union support. It does not necessarily follow
that a subsequent issuance of a written warning to Powers
which has not been shown to be disparate treatment, and
which was, in my view, fairly earned by Powers’ behavior,
is enough to constitute a showing that distaste for Powers’
union activity was a motivating factor in the issuance of the
written warning after Powers failed to heed the oral caution
by Patton. Moreover, even if such a motivating factor may
be inferred from the evidence, I am convinced the evidence
preponderates in favor of a finding, which I make, that Pat-
ton would have reacted to Powers’ uncalled-for ‘‘hollering’’
in exactly the same way in the absence of any union activity.
The General Counsel therefore has not shown by a prepon-
derance of the credible evidence the warning of Ernest Pow-
ers violated the Act.
1043VISADOR CO.
9 The boards involved were over 12 feet long.
10 It is not clear, but I am persuaded, as Fout testified, that Shirley Blevins
requested the meeting.
E. The Discharge of James Ray Powers
James Powers was fired on July 13. On that date Produc-
tion Manager Fout presented him with a typed note reading:
‘‘You are hereby terminated effective 7–13–90 for creating
unsafe working conditions and interfering with production.’’
Respondent claims James Powers created his own discharge
by three times deliberately causing lumber to fall from his
wood buggy adjacent to his saw into the work area of Reese
Maloyed, another sawyer, thereby endangering Maloyed. The
parties presented several witnesses to the events of July 13.
The employees testifying in favor of Powers were union sup-
porters while those testifying against him opposed the Union
and had been harassed by union supporters. I have taken this
bias of the witnesses into consideration in arriving at my
conclusions.
F. Respondent’s Witnesses
Reese Maloyed, although a somewhat confused witness at
times, appeared to be trying hard to honestly relate what hap-
pened as best as he recalled. According to Maloyed, boards9
fell into his work area from Powers’ wood buggy three times
on July 13. Only five or six boards fell off the first time,
and Maloyed does not know if this was an accident or not.
He helped Powers pick the wood up. Maloyed says he then
saw Powers pry 15 to 20 boards off the load into Maloyed’s
work area, and, after he again helped Powers pick up the
wood, he then saw Powers deliberately dump the entire load
of lumber, an estimated 40 to 60 boards, into his work area
and hitting him on the ankle. Maloyed believes that had he
not been watching Powers and managed to get out of the
way he could have suffered a broken leg or ankle.
Stanley Smith was working with Maloyed on July 13 and
states that he saw Powers deliberately dump the wood into
Maloyed’s area on two occasions that day, did not see the
wood fall the third and last time, but did see the wood on
the floor a third time.
Mark Blevins, working about 25 feet from Powers, re-
members seeing Powers deliberately cause about 20 boards
to fall one time and, about a half hour or 45 minutes later,
deliberately turn the entire load over causing about 50 pieces
of wood to fall. He did not see Powers do this any other
time that day.
Sherry Blevins, a saw operator also working about 20–25
feet from Powers, says that Powers and Maloyed were run-
ning long boards that day, and she saw Powers deliberately
push boards off into Maloyed’s area once. That was the only
time she saw wood fall that day.
G. The General Counsel’s Witnesses
James Powers testified that several pieces of wood fell off
his wood buggy and landed next to Maloyed, but this only
happened once, did not injure Maloyed, and was not the re-
sult of deliberate action by him.
Roy Wayne Owens, who works on the ripsaw with James
Powers, first states he only saw wood fall once on July 13,
but then, on cross-examination, gave the following testi-
mony:
Q. You don’t remember much of anything except
that they fell one time. Is that correct?
A. No, they fell one time. They fell twice.
Q. They fell twice?
A. No, they didn’t. . . .
Q. Now, did they fall one time or did they fall
twice?
A. Well, they didn’t fall twice at the same time.
Q. How many times did they fall on that day?
A. Oh, I don’t remember that day, I just remember
that they fell twice all together.
JUDGE WOLFE: All the time you worked there, is that
you’re saying?
THE WITNESS: Yes. All the times— seems like it was
maybe one day before—the day before that day, you
know.
JUDGE WOLFE: Oh, I see. So, two different occasions.
THE WITNESS: Yes.
Q. But it’s not your testimony that they fell twice on
July the 13th?
A. No, sir, not that I recall.
Q. And they didn’t fall three times then?
A. No, sir, they didn’t fall.
Maloyed was a believable witness, and the testimony of
Smith and the two Blevins supports Maloyed’s testimony
that Powers deliberately pushed wood off in Maloyed’s area.
That Mark and Sherry Blevins testified to seeing less than
the three wood spillages does not reflect adversely on their
testimony. They struck me as employees testifying only to
what each actually saw without speculation. Neither does
their testimony diminish Maloyed’s credible testimony of
three wood spills which is supported by Smith’s testimony
he saw two wood falls and wood on the floor a third time.
Maloyed’s version is credited over that of Powers which
gains little support from Owens whose testimony was vague
and evasive in several particulars in addition to the above
quoted excerpt. I conclude that the wood spills of July 13,
at least the last two and probably all three, were deliberately
engineered by James Powers to harass Maloyed who testified
to previous harassment by Powers after Maloyed started
wearing an anti-union T-shirt. This conclusion does not,
however, resolve the allegation of unlawful discharge.
Mark Blevins and Ronald Boardwine testify to an incident
prior to the Union’s campaign when Blevins, irritated at
Boardwine’s efforts to put a length of 4-inch by 4-inch lum-
ber in Blevins’ trash bin, three times threw the lumber on
the floor. The third time this happened the piece of timber
bounced onto Boardwine’s foot causing Boardwine to miss
2 days of work. Blevins was not discharged.
In addition to the issue of disparity raised by the compara-
tive treatment of Blevins and Powers for conduct of the same
general nature, the events following Powers’ misconduct and
preceding his discharge indicate a lack of evenhandedness in
the treatment of Powers. Maloyed, Smith, and Mark and
Shirley Blevins met with Production Manager Fout and Plant
Manager Neitch on July 13 shortly after Powers’ third wood
spill.10 The four employees gave written statements to Fout
and Neitch repeating their oral report they had seen Powers’
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The statements given Respondent by the four were not offered in evi-
dence. Inasmuch as the General Counsel cross-examined Mark Blevins on the
statement he gave Fout, I conclude both parties had access to the statements
at trial. Accordingly, I draw no adverse inference against either party for fail-
ure to introduce these statements.
12 I have credited Powers’ undenied testimony concerning his request to
speak to Neitch and Neitch’s refusal to discuss the discharge.
13 Wright Line, 251 NLRB 1083 (1980); NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
push the wood into Maloyed’s work station.11 After receiv-
ing these papers and consulting with counsel, Fout caused
the discharge memo to be typed, called Powers in, con-
fronted him with the information the four employees had
given, listened to Powers’ denial there had been three wood
spills that day, told him he was fired for creating unsafe
working conditions, and gave him the discharge memo. Pow-
ers asked permission to bring in other employees to attest to
his innocence of the conduct with which he was charged.
Fout denied this request, telling Powers the decision had
been made. Fout concedes there were about 24 employees in
the department with 2 to 4 employees other than those giving
statements who worked within 10 feet of Powers. He ex-
plains that he refused to listen to additional witnesses be-
cause of the severity of the incident and because never be-
fore had four people come in and told him of such an inci-
dent. The following colloquy then followed:
JUDGE WOLFE: Let me ask a simple question. Why
didn’t you talk to these other four people? Or three
people, or one people? How many people did Powers
want to bring in?
THE WITNESS: He just said, ‘‘his people.’’
JUDGE WOLFE: Why didn’t you let him bring them
in?
THE WITNESS: The decision had been made to—from
the other four people’s testimony . . . .
JUDGE WOLFE: Why didn’t you want to investigate
his version?
THE WITNESS: I guess because of the rumors that
people had come to me and told me about the harass-
ment that was going on.
JUDGE WOLFE: I don’t understand that, but I won’t
ask any questions about it. Move on. Next question.
I still do not understand Fout’s explanation to be reasonable
or believable. In any event, Fout asked if Powers wanted to
talk to Neitch about it.12 Powers said he did. Fout called
Neitch in and said Powers had a few questions to ask. Ac-
cording to Powers, Neitch yelled that he was not answering
any questions, the decision had been made, and it was final.
Neitch testified on other matters but did not deny this claim
by Powers, nor did Fout.
The combination of outstanding union activity by Powers,
knowledge of that activity by Respondent’s agents and thus
Respondent, Respondent’s violations of Section 8(a)(1) of the
Act in other respects, the more lenient treatment of Mark
Blevins for a similar offense, and the refusal to investigate
further than the information offered by employees Respond-
ent knew to be opposed to the Union are sufficient to support
an inference that James Powers’ union activity was a moti-
vating factor in the decision to terminate him. That being so,
it is incumbent upon Respondent to demonstrate Powers
would have been discharged in the absence of union activ-
ity.13 Respondent has not done so. Although Powers engaged
in the conduct for which Respondent says he was terminated,
I do not believe that was the real reason for his discharge.
Respondent’s handling of the Blevins/Boardwine incident in-
dicates it had no draconian policy of discharging employees
engaging in conduct potentially, or in that case actually, inju-
rious to other employees. Add to this the fact that all the Re-
spondent knew about Powers’ conduct on July 13 was re-
ported by employees openly hostile to the Union, of which
Powers was the most prominent employee proponent, and
angry at Powers and other union supporters for harassing
them. Respondent knew of this hostile relationship yet re-
fused for no good reason shown to interview witnesses prof-
fered by Powers, and failed to investigate further at all.
Moreover, the decision to discharge Powers was made and
a discharge memo prepared before he was confronted con-
cerning his conduct. In the circumstances of this case, not-
withstanding the character of Powers’ conduct on July 13, I
conclude that Respondent’s ‘‘rush to judgment’’ and the im-
position of discharge for conduct previously treated quite le-
niently seriously erode its claim of a bona fide, discrimina-
tion-free personnel action and warrant a finding Respondent
has failed to carry its burden of proving it would have dis-
charged James Powers absent any protected union activity.
Accordingly, I find the General Counsel has proved by a pre-
ponderance of the credible evidence that the discharge of
James Powers was designed to discourage employee union
membership and activities, and therefore violated Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging James Ray Powers for the purpose of
discouraging employee union activities, Respondent violated
Section 8(a)(3) and (1) of the Act.
4. By coercively interrogating employees about their union
activities and sympathies and those of other employees, Re-
spondent violated Section 8(a)(1) of the Act.
5. By threatening employees with discharge and other re-
prisals because they engaged in union activity, Respondent
violated Section 8(a)(1) of the Act.
6. By creating an impression of surveillance of union
meetings and the union activities of its employees, Respond-
ent violated Section 8(a)(1) of the Act.
7. By instructing employees they cannot talk to employees
about the Union, and by disparately enforcing its no-
solicitation/no-distribution rules against employees who sup-
port the Union, Respondent violated Section 8(a)(1) of the
Act.
8. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
9. Respondent has not been shown to have committed any
unfair labor practices other than those specifically found
above.
THE REMEDY
In addition to the usual cease and desist and posting re-
quirements my recommended order will require Respondent
to offer James Ray Powers immediate and full reinstatement
to his former position of employment or, if it no longer ex-
1045VISADOR CO.
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
15 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
ists, to a substantially equivalent position of employment
without prejudice to his seniority and other rights and privi-
leges and to make him whole for any loss of pay or other
benefits he may have suffered by reason of its having unlaw-
fully discharged him. Backpay shall be computed in accord-
ance with F. W. Woolworth Co., 90 NLRB 289 (1950) with
interest thereon in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Respondent shall also re-
move from its records any reference to his unlawful dis-
charge, provide him with written notice of such removal, and
inform him that his unlawful discharge will not be used as
a basis for future personnel actions concerning him.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Visador Company, Marion, Virginia, its
agents, officers, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in the Union, or any other
labor organization, by discharging employees or otherwise
discriminating in any manner with respect to their tenure of
employment or any term or condition of employment.
(b) Coercively interrogating employees concerning their
and other employees’ union activities and desires.
(c) Threatening employees with discharge or other repris-
als if they engage in union activities.
(d) Giving employees the impression that their union ac-
tivities and meetings are under surveillance.
(e) Instructing employees not to discuss the Union with
other employees.
(f) Disparately enforcing its no-solicitation/no-distribution
rules against employees because they support the Union.
(g) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer James Ray Powers reinstatement to his former
job or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination against
him in the manner set forth in the section of this decision
entitled ‘‘The Remedy.’’
(b) Remove from its files all reference to the unlawful dis-
charge of James Ray Powers and notify him in writing that
evidence of this unlawful discharge will not be used as a
basis for future personnel action against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Marion, Virginia facility copies of the at-
tached notice marked ‘‘Appendix.’’15 Copies of the notice,
on forms provided by the Regional Director for Region 11,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply. condition of employment.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discourage membership in or activities on
behalf of United Steelworkrs of America, AFL—CIO, CLC
or any other labor organization, by discharging any of our
employees or in any other manner discriminating against
them in regard to their tenure of employment or any term or
condition of employment.
WE WILL NOT interrogate our employees concerning their
or other employees’ union activities or desires.
WE WILL NOT make statements that give our employees
the impression their union activities and meetings are under
surveillance.
WE WILL NOT threaten our employees with discharge, or
other reprisals because they engage in union activities.
WE WILL NOT instruct our employees not to discuss the
Union with other employees.
WE WILL NOT disparately enforce our no-solicitation/no-
distribution rules against employees because they support the
Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL offer James Ray Powers immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to the
seniority and other rights and privileges enjoyed by him, and
make him whole for any loss of pay he may have suffered
by reason of his discharge, with interest computed thereon.
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL expunge from our files any reference to the dis-
charge of James Ray Powers, and notify him in writing that
this has been done and that evidence of this unlawful action
will not be used as a basis for future personnel action against
him.
VISADOR COMPANY