Brookwood Furniture

National Labor Relations Board - Board Decisions

Sep 23, 1981

258 N.L.R.B. 208 (N.L.R.B. 1981)

BROOKWOOD FURNITURE
Brookwood Furniture, Division of U.S. Industries
and Upholsterers' International Union of North
America, AFL-CIO. Cases 26-CA-7522, 26-
CA-7615, 26-CA-7684-1, -2, -3, -4, -5, 26-
CA-7711, 26-CA-7753, 26-CA-7789, 26-CA-
7944, 26-CA-8132, and 26-RC-5873
September 23, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 14, 1980, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, General Counsel
filed cross-exceptions and a supporting brief,' and
Respondent filed an answering brief to General
Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record2 and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 3 and conclusions 4 of the Administrative Law
Judge 5 and to adopt his recommended Order. 6
i Respondent's motion to strike counsel for General Counsel's cross-
exceptions and supporting brief for failing to comply with Sec. 102.46(b)
and 0) of the Board's Rules and Regulations, Series 8, as amended, and
failing to narrow the issues for review is hereby denied. The cross-excep-
tions set forth the specific findings of the Administrative Law Judge and
cite the specific pages and lines of his Decision to which exception is
taken. The 2-page supporting brief sets forth the theory and facts relied
on to support the cross-exceptions, and calls particular attention to II
pages of its attached brief to the Administrative Law Judge. In these cir-
cumstances, we find that counsel for General Counsel's cross-exceptions
and supporting brief fully comply with our Rules and Regulations.
2 Due to an error by the court reporter, original volumes 2 and 3 of
the transcript deleted the testimony of certain witnesses and put other
witnesses' testimony out of order. By stipulation the parties submitted to
the Board corrected volumes 2 and 3, agreed that the corrected volumes
were submitted to the Administrative Law Judge for his consideration of
the case, and moved the Board approve these volumes for official use. By
order dated July 29, 1980, the Board approved the parties' stipulation and
granted the joint motion to correct the transcript.
3 Respondent and the General Counsel have excepted to certain credi-
bility findings made by the Administrative Lawss Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Product.~, Inc.., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings. In this regard, we find no merit in Re-
spondent's contention that the Administrative Law Judge's credibility
findings with respect to Hall and McElhenney are inconsistent and unrea-
sonable. The Administrative Law Judge discredited portions of Hall's tes-
timony, noting that Hall appeared to become uncomfortable when asked
what had happened to a note he had allegedly made of a conversation he
had with employee Swords. Thus, on the basis of his demeanor, the Ad-
ministrative Law Judge found that certain aspects of Hall's testimony
raised questions of candor. As to McElhenney, the Administrative Law
Judge credited his testimony on the basis of demeanor, finding him to be
258 NLRB No. 28
ORDER
Pursuant to Section 10(c) of the National Labor
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, Brookwood
Furniture, Division of U.S. Industries, Pontotoc,
Mississippi, its officers, agents, successors, and as-
signs, shall take the action set forth in said recom-
mended Order, except that the attached notice is
"straightforward," "cooperative," and "candid." That McElhenney was
unable to produce the alleged documentation he had of conversations
with supervisors does not, in our opinion, warrant discrediting his testi-
mony, in view of the Administrative Law Judge's evaluation of his de-
meanor. We note that this is not a case where the Administrative Law
Judge credited all of General Counsel's witnesses and none of Respond-
ent's witnesses, since several of General Counsel's witnesses were entirely
discredited on the basis of demeanor. In short, we find the Administrative
Lasw Judge's credibility determinations to be consistent and reasonably
based on a thorough evaluation of the witnesses' testimony in light of
their demeanor.
4 We agree with the Administrative Law Judge's finding at fn. 22 of
his Decision that Buse's comments constitute objectionable conduct. We
note that no exceptions have been filed to his finding that these com-
ments were not violative of Sec. 8(a)(l).
In the absence of exceptions thereto, we adopt, pro forma, the Adminis-
trative Law Judge's finding at sec. 1,D,(5), that Hamblin's conduct did
not violate Sec. 8(a)(1).
We note that the conduct described in sec. I,D,(8), (9), and (14),
which the Administrative Las' Judge found, and we agree, constitutes
objectionable conduct, was neither alleged nor litigated as violative of
Sec. 8(a)(1)
We agree with the Administrative Law Judge that the conduct of
Weatherly and Parker, as described in sec. 3,D,(16), constitutes objection-
able conduct and that Parker's conduct violated Sec. 8(a)(l). However,
we decline to adopt his finding that Weatherly's conduct violated Sec.
8(a)(1) since the Administrative Law Judge denied General Counsel's
motion to amend the complaint to include Weatherly and stated that
Weatherly's conduct would only be considered with respect to objec-
tions. No exceptions were filed to this ruling.
We agree with the Administrative Law Judge that Hall's election day
conversation with McElhenney, as described in sec. IIl,E,(2), violated
Sec. 8(a)(1). The evidence shows that Hall's inquiries constituted a prob-
ing into McElhenney's union sentiments and were accompanied by a
threat of changes and comments indicating both that Respondent was dis-
pleased with its employees' union activity and that Respondent was inter-
rogating other employees. Such probing tends to coerce employees in the
exercise of their Sec. 7 rights. Contrary to Respondent's contention, the
coercive impact is not diminished by the fact that McElhenney was a
known union supporter. See PPG Industries. Inc.. Lexington Plant, Fiber
Glass Division, 251 NLRB 1146 (1980). Accordingly, e find that Re-
spondent violated Sec. 8(a)( ) by interrogating McElhenney about his
union sympathies and reasons for supporting the Union.
I In certain instances the Administrative Law Judge found that Re-
spondent violated Sec. 8(a)(1) but failed to specify how the Act was vio-
lated. In each instance Respondent violated the Act essentially as alleged
in the complaint. Thus. we find that Chewe's comments to McElhenney
as described in sec. 3,A, Wise's comments to Wray as described in sec.
Ill,B, (2), and Hall's comments to Swords as described in III,D,(4), con-
stitute implied threats and tended to coerce employees in the exercise of
their Sec. 7 rights.
6 We agree with the Administrative Lassw Judge's findings sustaining
the objections to the election and adopt his recommendation to set aside
the election. Accordingly, we shall remand Case 2-RC-5873 to the Re-
gional Director for purposes of scheduling and conducting a second elec-
tion at such time as he deems appropriate.
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
208
BROOKWOOD FURNITURE
substituted for that of the Administrative Law
Judge.
IT IS FURTHER ORDERED that the election in
Case 26-RC-5873 be set aside and that that case be
remanded to the Regional Director for Region 26
for purposes of scheduling and conducting a
second election at such time as he deems appropri-
ate.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees
about their activities on behalf of Upholsterers'
International Union of North America, AFL-
CIO, or any other labor organization.
WE WILL NOT tell our employees they
should change their negative attitude in regard
to efforts of employees to secure better wages
for employees.
WE WILL NOT imply that our employees
may get into trouble by involving themselves
with a union.
WE WILL NOT threaten our employees that
they may get themselves into trouble by in-
volving themselves with the Union.
WE WILL NOT threaten our employees that
they cannot afford to vote for the Union be-
cause of their having the position of leadman.
WE WILL NOT threaten our employees that
we are afraid our employees may get into
trouble by being on the Union's in-plant orga-
nizing committee.
WE WILL NOT reprimand our employees be-
cause they threaten to file charges with the
National Labor Relations Board.
WE WILL NOT reprimand our employees be-
cause they engage in union activities.
WE WILL NOT discharge or refuse to rein-
state our employees because of their union ac-
tivities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer immediate and full reinstate-
ment to Jerry Wray and Kawonies McElhen-
ney, to their former jobs or, if their jobs no
longer exist, to substantially equivalent jobs
without prejudice to their seniority or other
rights and privileges.
WE wii.l. make whole Jerry Wray and
Kawonies McElhenney for any loss of earn-
ings they may have suffered by reason of our
discrimination against them, with interest.
Wl WiL.L expunge, rescind, and not consider
warnings issued Jimmy Lessel on December
15, 1978, and Kawonies McElhenney on Janu-
ary 4 and 25 and March 1, 1979.
BROOKWOOD FURNITURE, DIVISION
OF U.S. INDUSTRIES
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERSTON, Administrative Law Judge:
This matter was heard in Tupelo and Oxford, Mississippi,
on November 5, 8, 9, 14, 15, and 16 and on December 3,
4, and 5, 1979. The charges in the respective cases were
filed on December 1, 1978, January 30, 1979, March 13,
21, and 27, April 12, May 2, July 24, and November 1,
1979. Several of those charges were amended at various
dates during 1979. On January 26, 1979, a complaint
issued in Case 26-CA-7522. Subsequently, after other
pleadings were filed, an order consolidating cases,
second amended consolidated complaint, and notice of
hearing issued on August 24, 1979. Amendments to the
consolidated complaint were made at various dates in-
cluding November 5 and December 3, 1979, and at var-
ious other times during the hearing.
The General Counsel alleges that Respondent commit-
ted numerous violations of Section 8(a)(1), following
commencement of the Charging Party's (herein called
the Union) organizing campaign among Respondent's
employees at its Pontotoc, Mississippi, plants. That cam-
paign commenced during the summer of 1978. Addition-
ally, the General Counsel alleges that Respondent com-
mitted numerous violations of Section 8(a)(3) by issuing
oral and written warnings to its Pontotoc employees, as-
signing an employee a more arduous job, and terminating
several employees, because of its employees' union activ-
ities.
The Union filed the petition in Case 26-RC-5873 on
September 28, 1978. The election was held on December
1, 1978, pursuant to a Stipulation for Certification Upon
Consent Election which was approved on October 19,
1978. Approximately 465 employees were eligible to
vote,' 120 votes were cast for the Union, 334 votes were
case against the Union, there were 3 challenged ballots
and 2 void ballots. On December 11, 1978, the Union
filed timely objections to the election. In accordance
with a Board Order, which issued on February 27, 1979,
the hearing herein was held, in part, to resolve the issues
The unit included all production and maintenance employees, includ-
ing floaters, leadman, local and over-the-road truck drivers, quality con-
trol employees employed at the Employer's Plants I and 4 located at 175
Industrial Drive. Pontotoc, Mississippi, and all samplers and shippers em-
ployed at the Employer's warehouse located at 263 Brookwood Drive.
Pontotoc Mississippi. excluding all office clerical. technical and profes-
sional employees, industrial engineers. guards, watchmen and supervisors
as defined in the Act
209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raised by the Union's Objections 6, 7, and 9 and the addi-
tional Objections A and B.
Upon the entire record,2 and from my observations of
the witnesses, and after due consideration of the briefs
filed by the General Counsel and Respondent, I hereby
make the following:
FINDINGS AND CONCUSIONS
I. COMMIERCE
Respondent admitted, and I find, that it is a corpora-
tion with an office and place of business located in Pon-
totoc, Mississippi, where it is engaged in the manufacture
of furniture. During the course and conduct of its busi-
ness operations at Pontotoc, Respondent annually sells
and ships from its Pontotoc facility, products, goods, and
materials valued in excess of $50,000 directly to points
outside the State of Mississippi. Respondent annually
purchases and receives at its Pontotoc facility, products,
goods, and materials valued in excess of $50,000 directly
from points outside the State of Mississippi. Therefore, I
find that Respondent is an employer engaged in com-
merce within the meaning of the Act.
II. LtABOR ORGANIZATION
Respondent admitted, and I find, that Upholsterers' In-
ternational Union of North America, AFL-CIO, is a
labor organization as defined in the Act.
111. THE EVIDENCE 3
A. August 1978
Alleged discriminatee Kawonies McElhenney testified
about a conversation he had with Safety Director Terry
Chewe, during August. According to McElhenney,
Chewe came to him at his work station and told McEI-
henney that he needed to talk with him. McElhenney
asked Chewe if it was about the Union. Chewe replied
that it was not about the Union but was about a sugges-
tion slip that McElhenney had filled out and had a ma-
jority of the employees in his department sign, requesting
a higher rating and higher pay for the janitor. During
the conversation Chewe mentioned that McElhenney
had a negative attitude. He told McElhenney that if he
wanted something done he should not go all over the
plant hollering about it. Chewe said that he had learned
a long time ago that you have got to keep your mouth
shut around here if you are going to get anywhere.
Chewe told McElhenney that he had a great deal of po-
tential with the Company, if McElhenney would change
his attitude, Then Chewe said, "What about a Union?"
McElhenney replied, "I am in the process of organizing
something to that effect. I am in the process of organiz-
ing Brookwood, to establish a Union here." Chewe then
walked away. Chewe admitted talking with McElhenney
2 Respondent's motion to amend and the General Counsel's motion to
correct the transcript, which were filed with their briefs, are hereby
granted. Additionally, I hereby receive in evidence the stipulation execut-
ed by the General Counsel and Respondent, which was submitted after
the hearing closed.
3 Included in this section are my findings regarding the 8(a)(1) allega-
tions.
about the janitor's pay but regarding the Union, Chewe
said, "I don't recollect talking to Mr. McElhenney about
the union."
I found McElhenney to be a straightforward witness.
Chewe's answer regarding his union comments to McEI-
henney was less than positive. To the extent his testimo-
ny conflicts with McElhenney's, I credit McElhenney.
In view of Chewe's comments regarding McElhen-
ney's attitude and his coupling those comments with
McElhenney's efforts to increase the wages of a fellow
employee, plus the overall record which demonstrates
that Respondent engaged in a vigorous, sometimes illegal
antiunion campaign, I find that Chewe's comments are
violative of Section 8(a)(l).
B. September 1978
(1) Employee Jimmy D. Lessel, testified that he was
questioned about the Union coming into the plant by a
supervisor around September 6, 1978. Cliff Hamblin4
came to Lessel at Lessel's job and said, "I heard a rumor
that a Union is trying to come in." Lessel replied that he
did not know anything. Hamblin told Lessel that he
(Hamblin), had gotten into trouble over a union at Futor-
ian 5 a few years before and that he did not see what a
union could accomplish at Brookwood.
Hamblin denied that he ever asked anyone named
Lessel if he had heard anything about a union coming
into the plant. Hamblin also denied telling any employee
that he had gotten into trouble at Futorian by trying to
organize a union. Hamblin did testify that Jimmy Lessel
told him that he was definitely not going to get involved
in the Union.
I was not impressed with Mr. Hamblin's demeanor
and, to the extent his testimony conflicts with credited
evidence and is not supported by evidence which I
credit, I do not credit him. Hamblin and several other
supervisors admitted carefully questioning employees
about Respondent's antiunion meetings. One supervisor
admitted that those questions were designed to determine
the employees' feelings about the Union. I am convinced
that Respondent was actively engaged in a campaign to
determine the Union's strength among its employees. In
that regard the evidence tends to support Lessel's ver-
sion of the alleged conversation on September 6. Addi-
tionally, other employees, including Tommy Under-
wood, testified that Hamblin told them about his experi-
ences at Futorian. Although Hamblin denied that he told
any employee about Futorian, he admitted that he was
discharged at Futorian and, after charges were filed with
the Board, the case was settled and he received a back-
pay award. I did find Jimmy D. Lessel to be a straight-
forward witness and I credit his testimony regarding the
September 6 conversation with Hamblin.6
4 Hamblin, an admitted supervisor, was plant superintendent at the
time of the hearing. At the time of the alleged conversation with Lessel
Hamblin was the upholstery, packing. and supply supervisor.
A former employer of Hamblin, which was located in the vicinity of
Pontotoc.
6 Respondent's attorney brought out a conflict between Lessel's testi-
mony and his prior affidavit. In that regard I credit Lessel's affidavit ver-
sion to the effect that Hamblin stated that he had heard a rumor that a
union was trying to come in, rather than his testimony that Hamblin
asked him if he had heard anything about a union coming in.
210
BROOKWOOD FURNITURE
I find that Hamblin's statements to Lessel constitute in-
terrogation and an implied threat that employees get into
trouble by supporting a union.
(2) Employee Jerry Wray testified that Supervisor
Ronnie Wise came to him at his work area on September
22, 1978, and told him that he had heard that Wray was
tied up in the Union. Wray denied his involvement with
the Union. Wise then said that he knew that Wray was
fixing to get his "ass" in trouble.
Supervisor Wise7 admitted having a conversation with
Jerry Wray during September 1978, but denied that the
Union was mentioned. Wise testified that he recalled
talking to Wray about hunting. He admitted that after
their discussion about hunting, he asked Wray, "Have
you heard anything about the rumors that have been
going around?" Wray responded, "What rumors?" Ac-
cording to Wise, he said, "The rumor that has been
going around for the last day or two." Wray then said,
"No. The only thing I've heard is what-just hearsay."
Wise was then asked on cross-examination what rumor
he was talking about. Wise replied, "It could have been
any rumor." Later Wise responded that he was referring
to a rumor that they were going to be off work for a
day. Wise's testimony raises serious questions of credibil-
ity. To the extent his testimony conflicts with credited
evidence, I find it incredible.
On the basis of the record, including the several ad-
missions by supervisors which demonstrate that Re-
spondent was actively engaged in questioning employees
about their union feelings, I am convinced that Wray's
version of the September 22 incident is truthful.
I find that Respondent, by the statements of Ronnie
Wise to Jerry Wray, violated Section 8(a)(1).
(3) On September 28, 1978, the Union filed the petition
in Case 26-CA-5873.
(4) Employee Albert Gordon testified that after the
petition was filed, Cliff Hamblin came to him and asked
if Gordon knew anyone who was going around getting
cards signed. Hamblin denied the above conversation. I
credit Gordon's testimony to the extent I have indicated
above. I find Hamblin's query constitutes interrogation.
C. October 1978
(1) Employee Joe Dixon testified that Cliff Hamblin
came to him about 2 months before the December 1
election and asked Dixon to go with him to look at some
cartons. Hamblin told Dixon that he could not afford to
vote for the Union because he was a leadman. Hamblin
denied making that statement to Dixon.
As indicated above I do not credit Hamblin. At the
time of the alleged conversation Dixon was a leadman. I
found Dixon to be a candid witness and I credit his testi-
mony in this regard.
Hamblin's statement to Dixon constitutes a threat in
violation of Section 8(a)(1).
(2) Employee Leon Elzie testified that Hamblin came
to his work table about 2 months before the election and
asked him if he was ready to come over to the right side.
Hamblin denied that he ever talked to Elzie about the
Union. Elzie was evasive on cross-examination and I was
7 Wise, an admitted supervisor, held the position of line foreman
not impressed with his overall demeanor. Therefore I do
not credit his testimony. I find that this allegation is not
supported by the credited evidence.
(3) On October 19, the Regional Director approved
the Union's and Respondent's Stipulation for Certifica-
tion Upon Consent Election.
(4) On October 25, 1978, the Union mailed to Re-
spondent notification that the following employees were
on its in-plant organizing committee:
Kawonies
McElhenney
W. K. Lipsey
Sonny Williams
Joe Dixon
Jerry Wray
Charlie Swords
Charlie Flemons
Robert Denton
Robert Eubanks
Leon Elzie
Tommy Underwood
Billy Massey
Loretta Washington
Mary Badie
Rayburn Dixon
(5) Walter Frank Floyd, a former employee, testified
that beginning during the last of October, Cliff Hamblin
would call him over every 2 or 3 days and talk to him
about the Union. Hamblin told him that he did not know
if Floyd was for the Union but he believed that he was.
Hamblin told Floyd how he had been fired from Futor-
ian because he was trying to organize. Hamblin denied
that he made those statements to Floyd or any other em-
ployee.
Although I have discredited Hamblin's testimony as
indicated above, I also found Floyd to be an incredible
witness. Floyd's version of the events which resulted in
his discharge conflicted with the testimony of other wit-
nesses to those events, including some employee wit-
nesses called by the General Counsel. Therefore, I find
that the evidence does not support allegations of a viola-
tion of the Act stemming from Floyd's alleged conversa-
tions with Hamblin.
D. Vovember 1978
(1) Employee C. W. Ivy testified that, about a month
before the December I election, he was called into the
office by Cliff Hamblin for his job evaluation. Hamblin
talked to Ivy about his job. Hamblin then asked Ivy
what he thought about the Union. Ivy replied that he did
not know. Hamblin asked if it was more money they
want, are they satisfied with their jobs, or what. Hamblin
said if the Union could make what they were saying
stick to you, he would be for it himself. Hamblin told
Ivy that if he mentioned their conversation to anyone,
that he, Hamblin, would lie about it. Hamblin denied the
entire conversation. Respondent offered into evidence
Ivy's job evaluation form showing that Ivy's last evalua-
tion occurred on August 30, 1978.
In view of the receipt of the job evaluation form, I do
not credit Ivy's recollection that the conversation oc-
curred a month before the election. However, in all
other respects I credit his account. Ivy impressed me as
a truthful witness despite his inability to recall the date
211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with complete accuracy. The statements by Hamblin
constitute interrogation in violation of the Act."
(2) Former employee Barbara Hooker testified that she
had a conversation with her supervisor, Joyce Churchill,
about the Union, I month before the election. Hooker
testified that Churchill came over to her and asked her
what she thought of the Union. Hooker replied that she
did not know. After the first conversation Churchill
asked Hooker again on several occasions and, on one of
those occasions, Churchill told her that she had better
think about it, that she had better think about her job.
Joyce Churchill denied that she asked Hooker how
she felt about the Union or that she told Hooker that she
had better think about her job. However, Churchill ad-
mitted asking Hooker if she had any questions about Re-
spondent's antiunion meetings.
I am convinced that Hooker was candid regarding her
conversations with Churchill. Churchill admitted that
she questioned employees in an effort to discover the
employees' feelings about the Union. Hooker's testimony
demonstrates interrogation in violation of Section 8(a)(l)
and I so find.
(3) On November 8, 1978, Respondent's President
Tracy Buse, began a series of antiunion speeches. Buse
addressed the employees in small groups. He made three
different speeches, with the last of the three speeches be-
ginning on November 27.
The complaint alleges that Buse threatened employees
that they would lose their Christmas bonus and that
there would be a change in employee insurance benefits
if the Union won.
C. W. Ivy testified about Buse's meetings. Ivy recalled
that Buse used a board with a contract telling what the
Union could do and what it could not do. Buse said that,
if the Union came in, the Christmas bonus would be cut
off and the insurance would be changed. On cross-exami-
nations, Ivy recalled that Buse was comparing Brook-
wood's benefits with the benefits of a local union em-
ployer under their contract. Ivy recalled that the chart
which Buse was using demonstrated that the union em-
ployer did not provide a Christmas gift.
Jimmy Lessel testified that he recalled Buse saying
that he would negotiate in good faith over Brookwood's
benefits. Lessel recalled that Buse said that he would
start negotiations with a blank sheet of paper and go
from there.
Charles Washington testified that Buse said that, if the
Union came in, there would not be any Christmas bonus,
and stuff like that. Buse showed us some things about
Dean Industries. He showed me that our raises were al-
ready more than what Dean Industries were. Dean was a
local employer with a union contract. Employee David
Heard testified that Buse said they would not get their
holiday pay if the Union came in.
Buse testified that he used a flip chart in the employee
meetings. He told the employees that they had received
$32,349.96 in Christmas gifts last year and that, as far as
they could determine from the contract, Dean Industries
had received nothing. Buse also compared insurance
benefits with the benefits at Dean. Buse testified that he
H However, as to the objections, I find this conversation did not occur
in the critical period.
did not say that Respondent would eliminate the Christ-
mas bonus or change any of the benefits if the Union
won the election. On cross-examination, Buse testified
that he told the employees that negotiations started off
with a blank piece of paper and that they could end up
with the same benefits or they could end up with more
or they could end up with less or the same. Two other
management representatives attended all of Buse's meet-
ings. The two, Virgil Henry and Terry Chewe, testified
in accord with Buse.
Although I am convinced that the employee witnesses
testified in accord with their recollection, I am persuad-
ed that the meetings occurred more in line with the testi-
mony of Buse, Henry, and Chewe. Buse had obviously
prepared the speeches beforehand and he repeated the
same basic message to each group of employees. There-
fore, I have credited his testimony in regard to the
speeches.
(4) Employee Charlie Swords testified that he had a
conversation with his supervisor, Paul Hall, about 3
weeks before the election. Hall told Swords that he was
surprised to see Sword's name on the in-plant committee.
Swords told Hall that the people had come to him and
asked him to run the campaign. Hall told Swords that
the Company was going to win and that he was afraid
that Swords was going to get into trouble.
Paul Hall denied that he told Swords that he was
afraid that Swords would get into trouble. Hall admitted
he had a conversation with Swords regarding the Union.
According to Hall, someone told Swords that Hall had
called Swords a "smooth-mouthed son-of-a-b-." Hall
went to Swords and told him that he had never made
such a statement. Hall said he also told Swords during
that conversation that what he, Swords, was doing for
the Union was his business.
I credit the testimony of Swords.9 I was impressed
with his demeanor. I found him to be a straightforward
candid witness. I find in agreement with the General
Counsel, that Hall's statements to Swords constitute an
8(a)(1) violation.
(5) Joe Dixon testified about an incident with Cliff
Hamblin on November 13. Hamblin drew a square on a
carton. According to Dixon, Hamblin wrote the word
"contract" in the righthand corner of the square. Then
Hamblin wrote some of the holidays on the square and
said the contract would be blank. Hamblin told Dixon
that they would have to bargain for those holidays-they
would have to trade something for it.
Both Paul Hall and Cliff Hamblin testified about the
drawing on the carton and a copy of the drawing was
" I found certain aspects of Paul Hall's testimony raised questions of
candor. His testimony regarding his personal notes was especially ques-
tionable. On cross-examination Hall was asked how he specifically re-
called a conversation hat occurred on January 4, 1979. Hall replied that
he made a personal note of the conversation. He ,as then asked what
happened to the note. Hall replied that he did not know. Hall said that he
kept the note for a while but that he had no knowledge of what hap-
pened to the note. I noticed that Hall's demeanor appeared to change
during his testimony regarding his personal note. He appeared to become
uncomfortable, even though in other areas of his testimony he appeared
to testify wsith assurance. Under those circumstances I am reluctant to
credit all of Hall's testimony and I do not do so to the extent his unsup-
ported testimony conflicts with credited evidence.
212
BROOKWOOD FURNITURE
introduced into evidence. Hall testified that Hamblin
drew a square about 8 x 10, and on the left side he wrote
"Union promises" and on the right side he wrote
"Brookwood." Under Brookwood Hamblin wrote "9
paid holidays," "insurance," "security pay," "sick leave
pay," and "funeral pay." On the left side Hamblin wrote
"Union usually wants," "super seniority" and "check-
off." Both the exhibit and Hamblin's testimony were in
substantial accord with Hall's testimony.
Under the circumstances I have credited the testimony
of Hall. The actual drawing was shown during Hall's tes-
timony. Nevertheless, Joe Dixon was not recalled to ex-
amine the retained drawing, to demonstrate whether it
was in fact the same drawing Hamblin made on Novem-
ber 13. Therefore, I have concluded that Dixon, had he
been questioned on the matter, would have supported
the testimony of Hall.
On the basis of the credited evidence, I find no viola-
tion in this instance.
(6) On November 15, an incident between Walter
Frank Floyd and another employee, Jamie Cobb, result-
ed in the discharge of Floyd and the suspension of Cobb.
Although the discharge of Floyd was originally alleged
as a violation, the General Counsel amended the com-
plaint to exclude that allegation. As a result of that inci-
dent Joe Dixon was also disciplined. Dixon will be con-
sidered below under 8(a)(3) allegations.
(7) Employee Clarence Finley testified that he was ap-
proached in the packing department by Cliff Hamblin
about 2 weeks before the election. Hamblin told Finley
that if he wanted to have a position next year, he should
vote against the Union. Hamblin said that if Finley voted
against the Union, he would not have a problem with a
job. Hamblin denied making any of the above statements
to Finley.
Although I do not credit Hamblin, I also found Cla-
rence Finley's testimony was suspect. Although Finley
placed one conversation (see sec. III,D,(13), infra), on a
Saturday about a week before the election, documentary
evidence demonstrated that the conversation could not
have occurred during October or November. The people
involved in that conversation did not all work on a Sat-
urday before the election, after September 1978. Addi-
tionally Finley appeared to exaggerate testimony over
what he had given in his pre-trial affidavit. I do not
credit his testimony. This allegation fails for lack of
proof.
(8) Employee Albert L. Gordon testified about a con-
versation with Respondent's Safety Director Terry
Chewe approximately 2 weeks before the election. This
conversation occurred at the Sonic Drive-In Restaurant
in Pontotoc. Chewe asked Gordon if he knew of any-
body that was trying to get votes for the Union. Chewe
then asked Gordon, "If there is any way that you can
help us, I would appreciate it if you would help us out."
Chewe admitted having this conversation with Gordon.
At one point Chewe placed the date of the conversation
at I month before the election. Later he recalled it oc-
curred 2 or more months before the election. Chewe also
admitted that he told Gordon that he would appreciate
Gordon coming over to the Company's side and helping
out in the campaign with the Union. According to
Chewe he stressed that Gordon could help the Company
and Chewe stressed Gordon's long time employment. I
credit the testimony of Gordon. It is largely supported
by Chewe's admissions.
(9) Albert Gordon also testified about a conversation
with Barry Weeden'° about 2 weeks before the election.
Weeden told Gordon that he felt that if the Union were
organized to go in at Brookwood, that the Company
would shut the doors. Weeden told Gordon that he had
money invested in Brookwood and that he would lose
his money because Brookwood could not operate under
these circumstances. Gordon's testimony was not con-
tested. Weeden did not testify.
(10) Approximately 2 weeks before the election, em-
ployee Charles T. Washington was called over by Super-
visor Bo Weatherly. According to Washington, Weather-
ly told him that he understood that Washington's wife
was on the union plant committee. Weatherly asked if
Washington could do anything to change his wife's
mind. Weatherly also showed Washington a book with
"some stuff' about Dean Industries, showing that the
Union could not help the employees and that the Union
would not cut out any of the overtime.
Weatherly denied the above conversation. However,
he did admit that he asked Washington on one occasion
if Washington had any questions after one of the group
antiunion meetings. According to Weatherly, Washing-
ton told him that he could not help his wife being on the
in-plant committee; that she had a mind of her own, but
that he was a company man.
I found Washington to be a straightforward witness
and I credit his testimony. Weatherly, along with several
other supervisors, was actively involved in questioning
employees in an effort to discover their feelings about
the Union. Weatherly's statements to Washington consti-
tute interrogation in violation of the Act and I so find.
(I1) Clarence Finley testified that he had another con-
versation with Cliff Hamblin. This conversation occurred
approximately 1 week before the election. Hamblin came
to Finley in the cushion department and asked him what
he thought about the Union. Finley replied that he was
still thinking about it. Hamblin said that he was counting
on Finley to talk to everybody in the packing depart-
ment about voting against the Union.
Subsequently, about 3 or 4 days before the election,
Finley had another conversation with Hamblin in Hamb-
lin's office. Hamblin asked if Finley had talked to the
guys for him. Finley replied that he had talked to all of
them except "Joe," but that it did no good since they
were going to vote the way they were going to vote
anyway.
Hamblin denied these conversations with Finley.
As indicated above, I do not credit Finley's testimony.
(12) Clarence Finley also recalled a conversation with
Qualifty Control Supervisor Herschel Pannel approxi-
mately I week before the election. Pannel told Finley
that he wanted to talk about a personal matter. He said
" Although Barry Weeden was not alleged as a super isor il the com-
plaint, the uncontested evidence demonstrates that Weedell was the plant
superintendent at material times with auhorit to hire and fire I find
that Weedenll sas a supervislor
213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that if Finley would vote against the Union that he
would be in a better position in the plant than he had
been. Even though this testimony was uncontested, I do
not credit Finley. I find no violation as to this allegation.
(13) Finley testified that, on the Saturday before the
election, Foreman David Raines asked him how he felt
about the Union. Raines told Finley that, if he voted
against the Union, he, Raines, would help him all he
could. Raines denied that he ever discussed the Union
with Finley.
As indicated above, I found Clarence Finley to be in-
credible and I do not credit his testimony in this regard.
(14) Albert Gordon testified to a second conversation
he had with Terry Chewe. According to Gordon, on a
Sunday, around November 19, Terry Chewe visited
Gordon's church. Chewe asked Gordon if he knew of
any way that he could help them out with union activi-
ties. Gordon said that Chewe told him that he could be a
big asset to the Company. Chewe said that Gordon's
name had come up in meetings.
Chewe admitted talking to Gordon at Gordon's
church. In view of Chewe's admissions (see par. (8)), I
credit the testimony of Gordon.
(15) Clarence Finley testified that Terry Chewe talked
to him in the cushion department approximately 2 days
before the election. According to Finley, Chewe asked
him how he felt about the Union. Chewe said that this
was serious business and, if the wrong person heard
Finley talking about the Union, he could lose his job. On
cross-examination Finley testified that Chewe told him
that he could lose his job if he was caught talking about
the Union on company time.
Terry Chewe denied that he ever talked to Finley
about the Union. Again, I do not credit the testimony of
Clarence Finley.
(16) Employee David Heard testified that he had con-
versations with Supervisors Weatherly and Parker, a
couple of days before the election. According to Heard,
Weatherly asked him why did he go to the union meet-
ing. Heard told Weatherly that he went to the meeting
because he wanted to know what was going on. Weath-
erly said, if that was the reason Heard went, then he did
not blame him for going. According to Heard, shortly
after his conversation with Weatherly, Parker asked him
the same thing that Weatherly had asked.
Weatherly and Parker both denied asking Heard why
he attended a union meeting. However, both Weatherly
and Parker testified in almost exact detail as did practi-
cally all the supervisors that testified on behalf of Re-
spondent, that they asked employees if they had any
questions on Tracy Buse's antiunion meetings. It is clear
that these supervisors, and others, were engaged in a
campaign of interrogating employees in an effort to as-
certain their feelings about the Union. Under the circum-
stances I credit the testimony of David Heard.
I find that the questions of Weatherly and Parker con-
stitute interrogation in violation of the Act.
E. December 1978
(I) On December 1, 1979, the election was held. Also
the charge was filed in Case 26-CA-7522.
(2) Alleged discriminatee Kawonies McElhenney testi-
fied that he had a conversation with Quality Control Su-
perintendent Paul Hall, on election day. Hall asked
McElhenney how he thought the election would turn
out. McElhenney replied that he did not know. Hall then
asked what good did McElhenney think the Union
would do. McElhenney replied that he thought it would
stop a lot of partiality. Hall replied that he did not know
how the election was going to turn out either but that he
had been out to talk to an employee and that the "son of
a b-" will say he is for the Company on one occasion
and for the Union on another. Hall said that he did not
know what to think about "them son of a b-s on the
line." Hall then said that, whatever happens in the elec-
tion, there were going to be some changes and they
would start with him (Hall).
Hall denied having the above-mentioned conversation
with McElhenney. I found McElhenney to be a coopera-
tive, candid witness. He appeared to reply to questions
from both the General Counsel and Respondent with
equal candor and without regard to whether the answer
would help or hurt his position. I have fully credited
McElhenney's testimony. l I find in support of the Gen-
eral Counsel that Hall's remarks constitute a violation of
the Act.
(3) On December 11, the Union filed objections to the
election.
(4) Employee Jimmy Lessel testified that he threatened
to file a grievance against Supervisor Billy Cornett
during December 1978. Evidence proved that a repri-
mand was placed in Lessel's personnel file on December
15, 1978. The written reprimand states, in part:
Reason for reprimand: bad quality and threaten to
file a grievance on foreman
Attached to the reprimand was a written comment from
Cornett which stated, in part:
On Dec. 12-15-78 1 had trouble with Jimmy Lessel
about sets-they were lumpy, unlevel and drop-off
on one end, I showed him, tried to correct this all
week, by Friday he was very mad and told me I
was picking on him and he was going to file a
grievance with the labor board against me.
The General Counsel amended the complaint to allege
that the above warning violated the Act. I agree and so
find. The filing of charges with the Board is basic to the
rights afforded employees.
IV. THE 8(A)(3) ALLEGATIONS
A. The Discharges
The General Counsel alleges that Respondent dis-
charged the following employees in violation of Section
8(a)(3) of the Act:
Jerry Wray
Kawonies
McElhenney
Barbara Ann Hooker
Joseph Finley
I I do not credit Hall. See n. 9. rupro.
214
BROOKWOOD FURNITURE
Leon Elzie Joe Dixon
I. Jerry Wray
Jerry Wray was first employed by Respondent in
1971. Wray worked in Upholstery for approximately 7
years until his discharge on March 8, 1979.
At the time of Wray's discharge his foreman, Charles
Williams, prepared a "Reprimand Notice" which indicat-
ed:
Reason for reprimand: bad quality on 1149 chairs,
front stumps not straight, outside arm too loose,
pulls in stump, another outside arm too loose.
Action taken: terminated. Explained that we were
not going to allow this kind of performance out of
any employee.
In a note which he attached to the reprimand notice,
Williams stated:
I talked to you yesterday about your quality, and
you told me that you would try to improve, but to
me you haven't done any better and Cliff has been
on me enough and we discussed it and decided that
you should be terminated.
Wray testified that he engaged in activity on behalf of
the Union during the organizing campaign, including
getting cards signed, attending union meetings, and as-
sisting the Board agents in locating witnesses to support
the Union's unfair labor practice charges. The evidence
indicates, and I find that Respondent suspected Wray of
engaging in activity on behalf of the Union. As indicated
above in paragraph III,B,(2), Supervisor Ronnie Wise
told Wray on September 22, 1978, that he had heard that
Wray was tied up in the Union.
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) by discharging Wray on March 8, by issuing
written warnings to him on February 7, and March 7,
1979, and by orally warning Wray on January 17, 1979.
As to the January 17, oral warning, Wray did not con-
test the testimony of Foreman Williams. Williams testi-
fied that after he saw Wray talking to Tommy Under-
wood, Wray remained talking with Underwood for 12
minutes before Williams asked him to return to work.
Wray worked on line 1, six lines away from Underwood,
who worked on line 7. The evidence did not prove that
Respondent tolerated other employees remaining away
from their work for such periods of time. Therefore, I
find no violations in the instance of the oral warning.
I also find that the evidence does not support the alle-
gations that Respondent violated the Act by warning
Wray on February 7 and March 7.
On February 7, Wray received a written reprimand
because he used foul language in the lounge. Wray testi-
fied that he had played cards during the meal break. He
was asked if he had used foul language and he replied, "I
could have, I don't know." Other testimony, which I
credit, demonstrates that Wray said, "G- D-" and
"s-t" loudly during the card game at a time when the
lounge was filled with employees including several
female employees. Witnesses for Respondent admitted
that at times employees, including supervisors, used foul
language during work. However, Wray was reprimanded
because he made the remarks in the public area and was
loud. In view of Wray's admission that he could have
made the remarks and in view of his failure to rebut the
testimony that his remarks were loud, I find nothing il-
legal about his February 7 reprimand. The evidence does
not demonstrate disparity even though foul language was
sometimes tolerated, in view of the evidence which dis-
tinguished Wray's remarks from those that have been tol-
erated.
Wray admitted that he experienced a quality problem
on March 7. Wray admitted that on one occasion the
stripes were crooked on an arm he had worked on and
later, that he had pulled an arm too tight. His reprimand
for that date indicated that he had to redo the same arm
three times before getting it right. The evidence failed to
demonstrate any disparity in Respondent awarding Wray
this reprimand. In fact the evidence reflected that Re-
spondent issued similar reprimands during this same
period of time to many employees that had campaigned
against the Union. Therefore, I find no violation in the
March 7 warning to Jerry Wray.
However, I do find that the evidence supports the
General Counsel's contention that Wray was discharged
in violation of the Act. The evidence which included
both testimony as to what employees are told and Re-
spondent's written policy for its supervisors demonstrates
that Respondent's policy of disciplining employees for
poor work quality involves discharge at the third or sub-
sequent step. The written policy manual indicates that
employees are to receive a verbal warning, a written
warning, and then discharge may be awarded at the third
occurrence. Other evidence, which I credit, demon-
strates that employees generally receive at least three
written warnings before discharge. Moreover, after 3
months all warnings "wash out" and are not considered
in subsequent disciplinary considerations.
As indicated above, the record does reflect that Wray
was reprimanded for loafing during January, and Wray
was also reprimanded on February 7 for using foul lan-
guage. However, neither of those earlier warnings in-
volved poor quality. The evidence indicates, and I find,
that Respondent's policy was to discharge employees fol-
lowing at least three reprimands for a similar offense. 12
,2 Personnel Manager Ellis Guntharp testified that he is responsible for
the overall application of the disciplinary policy which is outlined in the
personnel policy manual. Guntharp was asked to explain how the policy
is applied. Guntharp testified. "it's not just real rigid, bound-in-concrete-
type thing. As you notice going through it (policy manual) here, we do
have wash-outs f varying periods from three to six or twelve months on
some items." " When I say it's not being real rigid, one that may call for
a discharge after three reprimands, it basically would be according to
what the reprimands were made up of." Guntharp gave as an example,
"if a man had two on qualt) and a third one come up and it was some-
thing like Number 20, 'eating in nonauthorized areas.' or some similar
reprimand as that, of course, to take the most drastic action I think you
can take, of discharging a person. I don't think that we would want to
use that one as the third one in a colnbination deal as far as discharge is
concerned" Paul Iall. upholstery supervisor. testified that Respondentl'
policy on ternmination is "three reprimands ilthin three consccuti\e
months on the same thing is considered reprimand-dicharge. But sse
always try to go an extra mile with our employees Sometimes we go
more than Ithree Somelimes we go four."
215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent offered no reasonable explanation as to why
it departed from its customary policy in the case of
Wray.' 3 Wray had worked at that particular job for 7
years. Nevertheless on his second day of quality prob-
lems he was discharged.
In view of the timing of Wray's discharge, the depar-
ture from established practice, Respondent's animus, and
its knowledge of Wray's involvement in the Union, I
find that the evidence supports my finding a violation.
The action came upon the heel of the Union's organizing
campaign at a time when both objections to the election
and unfair labor practice charges were pending. Re-
spondent's animus was apparent on the record especially
through its activities which I have found violate Section
8(a)(1).
2. Kawonies McElhenney
Kawonies McElhenney installed the buttons in cush-
ions. He had worked at that job almost 8 years when he
was discharged on March 9, 1979.
McElhenney was involved with the Union from the
beginning of the organizing campaign. He was the em-
ployee that organized the in-plant committee at the be-
ginning of the campaign. He solicited employees to sign
cards and attended union meetings. McElhenney's name
was at the top of the list of the employees on the in-plant
committee which was mailed to Respondent on October
25, 1978.
On March 9, McElhenney was called into the office of
his foreman, Ronnie Gray. Truett Clayton, who was
then the plant manager, met McElhenney and Gray in
the office. McElhenney testified that Clayton referred to
two cushions he had in the office and said that some of
the "buttons" were off. Clayton said that McElhenney
had been running bad quality and that he had been going
over McElhenney's records and saw that McElhenney
had a reprimand for loafing in January and a reprimand
for "cheating on production" on February 28. Clayton
said, "this is the third warning I'm having to write you
up for bad quality, and I'm going to have to terminate
you." According to Clayton's testimony, Ronnie Gray
talked to McElhenney during the termination meeting.
Gray told McElhenney that he had checked several of
his cushions and the buttons were installed crooked
which would necessitate several of them being recut.
Gray told McElhenney that he had received several rep-
rimands, "that he already had four reprimands and with
this reprimand it would mean five, and at this time he
was being discharged due to the number of reprimands
that he had."
Gray's testimony regarding McElhenney's terminal in-
terview includes the following:
I told him about the number of reprimands he had
since the 1st of January, and I told him because he
had not improved on either the loafing or the qual-
ity we were going to terminate him.
l Respondent argues that its policy was to discharge after three repri-
mands for quality and/or loafing. I find that the evidence does riot sup-
port that contention (see fi. 12, vupra).
I find that the evidence supports a finding that McEI-
henney was discharged because of his union activities.
According to McElhenney's foreman, McElhenney
had worked under his supervision since 1972. Until Janu-
ary 1979, 1 month after the election, McElhenney had
never received any disciplinary action for poor work or
loafing. Although Gray testified that he told McElhen-
ney that he was being terminated due, in part, to his not
improving on the "loafing," there is nothing in the
record indicating that McElhenney "loafed" at any time
after his January 25 reprimand.
As was the case of Jerry Wray, Respondent departed
from its established policy 14 of discharging an employee
because of poor work after two or more prior repri-
mands.
Foreman Gray admitted that prior to his termination
McElhenney had actually received only one reprimand
for bad work. That particular reprimand, according to
Gray, was awarded McElhenney on February 8, 1979. It
was an oral reprimand.15 On cross-examination, Gray
was asked about the policy regarding termination be-
cause of poor work. Gray testified that he relied on the
policy manual in making that decision.
The policy manual reflects that discharge may result
from at least one oral warning and two written warnings
for poor work. As shown above, at footnote 12, manage-
ment officials also consider a minimum of three repri-
mands as a prerequisite for discharge.
I find, on the basis of the testimony of McElhenney
and Truett Clayton, which I credit, that Respondent's al-
leged basis for discharge was McElhenney's poor work.
There is no dispute between McElhenney's and Gray's
testimony, that, at the time of McElhenney's discharge,
he had received only one warning for bad work.
In view of the evidence reflecting that Respondent de-
parted from its established policy in terminating McEI-
henney; the evidence proving that McElhenney was one
of the most active union advocates among Respondent's
employees; the timing of McElhenney's discharge;t 6 and
Respondent's union animus, I find that McElhenney was
discharged in violation of Section 8(a)(3).
The General Counsel also alleges that Respondent vio-
lated Section 8(a)(3), by reprimanding McElhenney on
three occasions.
Respondent contends that McElhenney was repri-
manded for "loafing" and "dishonesty." The evidence
fails to support Respondent's basis for these reprimands.
In regard to the reprimand for dishonesty, Foreman
Ronnie Gray's testimony illustrates that he departed
14 In finding that Respondent departed from established policy in the
manner it handled the discharges of McElhenney and Wray, I have not
relied on the policy manual directive that. "We have established a policy
that no employee may be fired or discharged "on the spot' for any
reason. The employee should be suspended and told to come back the
next day .... Obviously, Respondent did not follow that directive in
discharging McElhenney and Wray. However, the record is unclear as to
whether Respondent usually handled discharges without regard to that
particular provision.
"5 Gray estified that he placed a notation on a reprimand form in
McElhenney's file on January 16, 1979. However, according to Gray.
that matter was not a reprimand and he did not discuss it with McElhen-
ney.
II McElhenney wias discharged I day after Wray.
216
BROOKWOOD FURNITURE
from the regular method of tabulating McElhenney's
work production, in order to establish that McElhen-
ney's claimed work total was incorrect.
According to McElhenney and Gray, McElhenney
told the supervisors during his reprimand interview that
he had followed the regular practice in tabulating the
number of cushions he worked on February 28. Gray ad-
mitted that the routine practice was for McElhenney to
count the number of cushions remaining to be worked at
the end of the shift, and deduct that number from the
total number on the order or orders for that day.
However, in checking McElhenney's count for Febru-
ary 28, Gray counted the cushions on the line past
McElhenney. According to McElhenney's testimony,
which I credit, Gray's count did not take into considera-
tion a number of cushions that McElhenney had sent
back to repair.
Even though Gray admitted that McElhenney con-
tended that he had followed the established practice in
counting his cushions, and Gray did not deny that McEI-
henney's count may have been correct if the established
practice had been used, he made no further investigation
into the matter. Instead, McElhenney was reprimanded
for dishonesty.
Similarly Gray admitted that he reprimanded McEI-
henney for loafing on January 3, and on January 25, in
part because McElhenney was talking to other employ-
ees. Although Gray admitted that talking to other em-
ployees was permitted if the conversation related to
work, he made no effort to investigate the subject of
those conversations. 7
Therefore, on the basis of the evidence, including the
admissions of Foreman Gray, I find that Respondent rep-
rimanded McElhenney for pretextual reasons. In view of
the timing of those reprimands and the other factors
mentioned above in regard to my findings on McElhen-
ney's discharge, I find that McElhenney was reprimand-
ed on three occasions in violation of Section 8(a)(3) of
the Act.
3. Leon Elzie
Leon Elzie testified that he worked for Respondent
from 1974 until March 1979. Elzie was an upholsterer.
Elzie participated in the union activities. He was listed
on the in-plant committee. He also attended meetings,
and made house calls.
The complaint alleges that Respondent reprimanded
Elzie on three occasions and discharged him on March
21, in violation of Section 8(a)(3).
In regard to his alleged discharge, Elzie testified that
he was called into the office about a quality problem on
March 21, 1979. Elzie said that his foreman, Willard,
Paul Hall, and Truett Clayton were all in the office. Wil-
lard explained to Clayton and Hall that there was some
packing in some of the couches sticking out on the rail
of the seat, and some raw material was showing. Elzie
' I disagree with Respondent's contention that McElhenney. by not
strongly objecting to the basis of the loafing reprimands. demonstrated
his belief that the allegations were correct. McElhennev's testimony re-
flected that he believed Respondent was punishing him because of his n-
volvement with the Union and any opposition on his part would he fruit-
less.
said that the raw material was not his responsibility. Ac-
cording to Elzie, both Willard and Clayton then said that
they could not let it go on like that and Paul Hall said
that he was going to put another written reprimand in
Elzie's file. Elzie then testified, "They told me as far as
they were concerned, I could go home. He said I could
get my things and leave." Elzie then left. On cross-exam-
ination Elzie admitted that no one told him that he was
fired, terminated, or discharged.
Paul Hall testified that Elzie was not discharged on
March 21. According to Hall, he told Elzie that this was
the third reprimand for the same thing and that he would
not be getting any more; the next time he was brought to
the office he would be automatically discharged. Willard
then said, "This is your last warning." With that Elzie
jumped up and said, "I am gone," and left. Truett Clay-
ton's testimony agreed with that of Paul Hall.
I was not impressed with Elzie's demeanor. He was
evasive on cross-examination. I cannot credit his testimo-
ny. Therefore, I find that the credited evidence does not
support the allegation that Elzie was discharged.
Additionally, I find that the evidence does not support
the allegations regarding Elzie's reprimands. Elzie did
not disagree that there was a quality problem apparent
on March 21. He only contended that a portion of the
problem, the raw material, was not his responsibility.
Elzie testified that he was disciplined on March 12, be-
cause stripes in the material did not match in the back.
Elzie did not contend that the stripes did match in back.
He simply testified that his quality of work in March was
about the same as it had been in previous times.
Elzie recalled that his entire line was reprimanded on
March 19, because of low production and poor quality.
Elzie did not contest the basis of this reprimand.
I find no basis for a violation as to Elzie's reprimands.
Even Elzie's testimony, which I do not credit in areas
where it conflicts with credited testimony, does not dem-
onstrate that a violation occurred. Therefore, I find that
no violation has been proved regarding Elzie's repri-
mands or discharge.
4. Barbara Ann Hooker
Barbara Hooker was employed sewing arm pillows for
approximately 18 months before her discharge on April
4, 1979. The complaint alleges that Respondent violated
Section 8(a)(3) by discharging Hooker, by issuing written
warnings to her on two occasions, once in March and
again on April 4, and by issuing an oral warning to
Hooker in mid-March.
Hooker testified that she signed a union card and that
she discussed the Union with some of her fellow u-ork-
ers. However, Hooker testified that she did not believe
any supervisors were around when they were discussing
the Union. Hooker was questioned about her union feel-
ings by her supervisor, Joyce Churchill, on several occa-
sions beginning about a month before the election.
Hooker told Churchill that she did not know what she
thought of the Union (see sec. III,D,(2), supra).
Hooker was discharged on April 4, 1979. because of
her poor work quality. The note attached to her termina-
tion slip indicated, in part, "We have been working with
217
DECISIONS OF NATIONAL I.ABO()R REI.ATIONS B)AR[)
Barbara on her quality for several months. Explained to
her that if it did not improve we would take further
action, up to and including termination."
The record supports Respondent's assertion that
Hooker was discharged following a series of problems
with her quality. On February 6, 1979, her foreman,
Joyce Churchill, placed a note in Hooker's file which in-
dicated that Churchill had talked to Hooker about her
poor quality work on that day. On February 14, Chur-
chill placed another note in Hooker's file reflecting poor
quality. On February 22, Hooker received a written rep-
rimand for poor quality. Churchill stated on the repri-
mand form that she had explained to Hooker that further
action would be taken if Hooker's quality did not im-
prove. That reprimand also reflected that Churchill had
talked to Hooker on previous occasions, but that Hook-
er's quality had not improved. Another note was placed
in Hooker's file on March 15, because of poor quality.
On March 22, 1979, Hooker received another written
reprimand because of "bad quality." The March 22 repri-
mand reflects, "Explained this is written reprimand and
final reprimand-further action will be taken, up to and
including termination." The note attached to that repri-
mand states, "Ronnie and I talked to Barbara and ex-
plained to her that standard seam for arm pillows were
1/2" seams. Ask her if she understood, she said she un-
derstood seam requirements and that each had to be
maintained all around pillows." Subsequently notes were
placed in Hooker's file on March 27 and 28, reflecting
that Hooker's quality was poor on those days. Finally,
on April 4, Hooker received another reprimand for poor
work and was terminated.
Hooker did not deny that her poor quality was dis-
cussed with her on a number of occasions. Moreover,
Hooker did not deny that she had performed poorly.
I find that the record demonstrates a sound basis for
Respondent's action in terminating and reprimanding
Hooker, because of her poor work. The General Counsel
also alleges a violation because Respondent verbally
warned Hooker, because she stayed in the break area too
long.
On March 14, Hooker received a verbal warning be-
cause she did not leave the break area when the bell
rang. Hooker admitted that she did not get up to leave
the break area until 2 minutes after the bell rang. How-
ever, Hooker contended that other employees remained
in the break area as long as she did. The evidence re-
flected that Hooker was probably correct in her testimo-
ny. However, the other employees who were not repri-
manded left the break area by a different door from
Hooker and Hooker walked directly into a supervisor.
Respondent contends that, if it had known the names of
the other employees who left late, those employees
would have been reprimanded as well as Hooker. Under
those facts I see nothing improper with the reprimand of
Hooker.
Therefore, I find that the General Counsel has not
proved the violations as to Hooker's reprimands and dis-
charge.
5. Joseph Finley
Joseph Finley worked for Respondent from November
1977 until his discharge on July 9, 1979. At the time of
his termination, Finley was a cutter. He had been a
cutter for about a year.
The General Counsel alleges that Respondent violated
the law by issuing written warnings to Finley on March
9 and 14, 1979, and by discharging Finley on July 9,
1979. 1 find that the evidence does not support any of
the allegations as to Joseph Finley.
Respondent did issue written warnings to Finley on
March 9 and 14, 1979. Both those warnings were for bad
quality. Finley did not deny that he was called in on
March 9 and 14 because of poor quality work. On March
9, he argued with his foreman that the poor work, i.e.,
forgetting to take yardage off a roll of cover, was not his
responsibility. Finley contended that it was the responsi-
bility of his work partner because the "ticket" was on
her side of the cutting table. His foreman, Dobbs, point-
ed out that because the cutter is the more skilled employ-
ee, the cutter, in this case, Finley, has overall responsibil-
ity. The record did not prove that Respondent did not
regularly assign cutters overall responsibility. Finley ad-
mitted that the March 14 warning resulted in his cutting
some pieces about one-fourth inch too short.
As to the issue of his discharge, the evidence demon-
strated that Finley was talked to about his bad quality on
February 16, 1979, and a written note to that effect was
placed in his file. On February 20, 1979, Finley was
awarded a verbal warning for bad quality and a repri-
mand notice to that effect was placed in his file. On
March 9, and again on March 14, Finley received writ-
ten reprimands and reprimand notices were placed in his
file. On April 12, a note was placed in Finley's file re-
flecting poor quality work. On May I, 1979, another
note was placed in Finley's file reflecting poor quality.
On July 9, 1979, Finley received another written repri-
mand for poor quality and was discharged. The evidence
reflects that Finley's errors which led to the July 9 repri-
mand resulted in a cost to Respondent of approximately
$1,500.
Finley was not recalled to deny any of Respondent's
contentions regarding his warnings and notes to file. He
contended that Respondent was more strict from Febru-
ary 1979 than they had been before the election. Finley
may well be correct in that assertion. However, I note
that Finley testified that he had been a cutter for ap-
proximately 1 year at his termination. Therefore, during
the last half of 1978, Finley was new to the job. I find
nothing unusual in an employer being more lenient on an
employee working at a new position.
Additionally, Finley's union activities were limited to
signing a card and attending some union meetings. He
did regularly ride to work with Leon Elzie, who was on
the in-plant committee. However, there was no evidence
indicating that Respondent knew of his union activity or
that he rode to work with Elzie.
On the basis of the above-mentioned evidence, I find
that the record does not support a violation of the Act
by Respondent reprimanding or discharging Finley.
218
BROOKWOOD FURNITUIRE
6. Joe E. Dixon
Respondent is alleged to have violated the Act by issu-
ing written warnings to Joe Dixon on March 9 and 22,
1979, and by discharging Dixon on October 8. 1979.
At the time of his discharge Joe Dixon had been lead-
man in the packing department for over a year. On No-
vember 15, 1978, Dixon was awarded a reprimand notice
for failure to report an argument between two employ-
ees. Employees Floyd and Cobb had an argument which
involved serious threats. The incident resulted in the dis-
charge of Floyd and the suspension of Cobb (see sec.
III,D,(6), supra).
On October 6, 1979, Dixon was working along with
some employees who had volunteered to work that Sat-
urday. During the day, one of the employees, Willie
Jones, was sent home. Cliff Hamblin sent Jones home be-
cause he felt Jones was intoxicated. Dixon admitted that
Hamblin questioned him about why he did not report
that Jones had been drinking.
On Monday, October 8. Dixon was called into the
office about the incident involving Jones. Cliff Hamblin
and Truett Clayton were present in the office. Accord-
ing to Clayton's testimony, Dixon was reprimanded be-
cause he did not report that Jones had reported for work
intoxicated. According to both Clayton and Hamblin,
Dixon was suspended. Hamblin told Dixon to go home
and, when a decision was made as to final action, they
would contact him. According to Dixon's recollection,
Cliff Hamblin told him that he was terminated. The rep-
rimand notice reflects that Dixon was suspended from
work until further notice.
Under the peculiar circumstances surrounding the Oc-
tober 8 incident, I am convinced that Dixon's recollec-
tion is incorrect.' 8 In the first place, Dixon admitted that
Hamblin told him, "We're going to terminate you. and if
we need you we'll call you." He recalls that Clayton
then said, "Stick close by a phone." I find it unusual that
a supervisor would terminate an employee and tell him
to stick by the phone for a possible recall. Moreover, as
shown below, Dixon was called back into the plant 2
days later. Therefore, I am convinced that Dixon was
not terminated on October 8.
Dixon was thereafter called by Safety Director Terry
Chewe and told to report to the office on Wednesday,
October 10. Dixon testified that Cliff Hamblin, Ellis
Guntharp, and Truett Clayton were present. According
to Dixon, Hamblin read a list of rules to him. The last of
those rules was that Dixon was supposed to report any
loafing, drinking, or anything he saw to his foreman.
Dixon admitted that he told them that he could not do
that. Dixon testified that he was then asked, "If you can
go by these rules, you can go and punch your card and
go back to work." Dixon replied that he could not do
that. Dixon asked if that was all, and he left.
The uncontested evidence indicates that within ap-
proximately 30 minutes after the above conversation.
I I have discredited Dixon regarding the incidents of October , esen
though. in other respects. I have found his testimony to be credilable. In
addition to the peculiar circumstances which render Clayton's and Hamb-
lin's version more likely. I am aware of the emotional pressure on Dixon
during their conference. I feel that pressure may have affected his ahility
to understand what actualls occurred during the meeting
Clarence Finley accepted Dixon's former position of
leadman.
Later on October 10, Dixon called back and told
Truett Clayton that he had changed his mind and would
like to return to work. Clayton told Dixon that his old
job had been filled but that he would see what he could
do about another job. Later that day, Clayton called
back for Dixon. However. Dixon was out. He did not
return Clayton's call. At some time after October 10,
Terry Chewe called and asked him to come in. Dixon
told Chewe that he had other arrangements but that he
would try and get in. Dixon never did go in.
I find no illegal action occurred regarding the termina-
tion of Dixon.
On March 9, 1979, Joe Dixon received a written repri-
mand which reflected, "Bad packing performance on
1830-staples caught top of back on 2 different sofas-
visiting other depts during working hours-explained to
Joe that this type packing and visitation could not and
would not be tolerated-if occured [sic] again further
action would be taken up and including discharge."
Dixon's March 22 reprimand read, "not running dept. as
it should be run and how he knows it should be run, and
bad packing performance on 2599 love seat-clinched
with clincher gun in top of back. Employee was talked
to about the above problems and I told him that this was
his last reprimand, and if this happened again further
action would be taken up to and including discharge."
Although not alleged as violative, Dixon received a simi-
lar reprimand on February 15.
There is no serious dispute as to the factual basis for
the above-mentioned reprimands. There is a question as
to Dixon's responsibility for the damage to the sofas and
loveseat. Respondent contends that Dixon, as leadman, is
responsible for damage to furniture caused by packing
regardless of which member of his crew actually packed
the furniture. The two reprimands resulted, at least in
part, from improper stapling of the cartons containing
furniture for shipment. The clincher staples were in-
stalled improperly and, as a result of the installation, the
staples tore the furniture.
Of course Respondent is free to assess responsibility to
any degree it desires to its leadmen and supervisory per-
sonnel, provided its action regarding nonsupervisory per-
sonnel is not taken because of employee actions protect-
ed by the Act. Here the record implies that perhaps
Dixon was held to a greater degree of responsibility for
the actions of his crew than others in positions of respon-
sibility, including foremen. For example, I notice that the
record does not reflect that any of the foremen were dis-
ciplined because of the actions of their employees which
resulted in the numerous poor quality reprimands which
were received in evidence in these proceedings. Howev-
er, under the circumstances present here, Respondent did
not have the burden of disproving disparity. Despite
what the record may imply, there was no evidence indi-
cating that foremen and leadmen were not customarily
held to a degree of responsibility for the actions of their
crew, similar to the burden imposed on Dixon during
February 1979 and afterward. Therefore. I find that the
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence does not warrant the finding of a violation as to
Dixon's reprimands.
B. The Disparate Work Assignment
The General Counsel alleges that Respondent assigned
Charles Washington a more arduous job, in violation of
Section 8(a)(3). I find that the record does not support
that allegation.
Washington testified that he was assigned to the "tilt-
up-job" in April 1979. Prior to that time Washington
rolled furniture from the lines and helped load trailers.
According to Washington the tilt-up-job involved stack-
ing crates of furniture in lines behind the warehouse so
that other employees could roll the crates away. Wash-
ington was assigned to tilt-up upon the termination of the
employee who formerly held that job. He remained on
the job for the entire 8-hour shift for approximately 1
day. Apparently, Washington was then returned to his
former job upon Respondent assigning a newly hired em-
ployee to tilt-up. However, the new employee quit after
3 days. Respondent then assigned Washington and an-
other new hire to tilt-up on a rotating basis. Washington
would work on tilt-up for 5 hours I day, then 3 hours
the following day. The other employee would rotate,
working 3 hours when Washington worked 5, and 5
when Washington worked 3.
There is nothing in the record which demonstrates
that, by assigning Washington to the tilt-up job, Re-
spondent was treating him in a disparate manner. The
job was an ongoing one, it was not created for Washing-
ton. Other employees were also assigned the job. More-
over, shortly after Washington was assigned to tilt-up,
the job was placed on a rotating shift basis, an action
which obviously made the job more acceptable. Further-
more, there is nothing which indicates that Washington,
or any of the other employees, felt that tilt-up was more
arduous than other jobs in the plant. I find nothing il-
legal in Washington's assignment.
C. The Written Warnings
In addition to the alleged violative warnings which I
have treated in sections III,E,(4), and IV,A, supra, the
General Counsel alleges that the following employees re-
ceived written warnings:
Charles Washington
Rayburn Dixon
Debra Washington
Thomas Underwood
Robert Eubanks
Robert Denton
Warren K. Lipsey
Albert Gordon
All the above-named employees testified regarding the
General Counsel's allegations. In each instance of an al-
leged reprimand, the employee either admitted or did not
deny the factual basis for the reprimand. Furthermore,
the evidence revealed neither disparity nor that Re-
spondent awarded reprimands to employees because of
their union activity. All the above-mentioned employees
engaged in prounion activity and some were on the in-
plant organizing committee. However, the evidence dem-
onstrated that other employees, many of whom demon-
strated antiunion feelings, received similar warnings. The
evidence did indicate that perhaps Tommy Underwood's
actions did not justify the warning which he received in
July 1979. However, Respondent's agents admitted,
during the hearing, that Underwood would have not re-
ceived the warning if they had known all the facts that
developed during the hearing. Furthermore, the evidence
reflected that Underwood's warnings of March and July
1979 have now washed out and will not be considered in
future action.
I find no violation as to the above-mentioned warn-
ings. 9
v. THE OBJECTIONS
In considering the objections, 2 0 I have considered the
evidence reflecting activity during the critical period of
September 28 to December 1, 1978.
I find that the evidence is sufficient to sustain some of
the objections included within the Board's order. Al-
though one of the objections was not supported by the
' The General Counsel also argues that I should grant a broad order
to remove the warnings and reprimands issued by Respondent to all em-
ployees after the beginning of the union campaign. The General Counsel
prefaces this argument on his contention that the evidence shows a dra-
matic increase in the number of warnings given after the union organiza-
tion effort began in September 1978. Respondent replies that, if there
exist such evidence, the increased warnings resulted from business-based
reasons. Furthermore, Respondent argues, the evidence shows that
during the material times Respondent was sending its supervisors to man-
agement seminars and those seminars emphasized documentation. There-
fore. it is only natural that the supervisors would engage in more docu-
mentation of personnel matters. The General Counsel cited American
Commercial Bank, 226 NLRB 1130 (1976). and Vincent's Steak House,
Inc., 216 NLRB 647. 650 (1975). as supporting his position. However
both of those cases must be distinguished from the instant situation. Here,
the evidence fails to prove a connecting link between the increased disci-
plinary actions in general and the employees' union activities. There was
no showing that employees were cautioned, either directly or by implica-
tion. that Respondent was cracking down because of their union activi-
ties. Nor was there a showing that Respondent engaged in disparate
treatment by issuing more reprimands to union advocates. In short, there
was no showing that Respondent used the increase in reprimands as an
antiunion weapon. An employer does not violate the law by continuing
to operate his business as he sees fit, even though that operation may in-
clude personnel policy changes during a union campaign, unless by
making those changes, he effects injury to employee rights protected by
Sec. 7. The General Counsel failed to prove that such was the result of
Respondent's increased documentation.
:o In accordance with the Board's order directing a hearing, I have
considered evidence with respect to Objections 6, 7 and 9 and additional
Objections A and B. Those objections are:
(6) Foremen and Supervisors constantly questioned individual em-
ployees as to how they felt about the Union.
(7) Foremen and Supervisors threatened individual employees
"that anyone who fools with the Union will get in trouble."
(9) Agents of the company offered money and promotions to em-
ployees if they would work against the Union.
Additional Objection A.
During the investigation. employee witnesses testified to incidents of
alleged interrogation, threats of retaliation. threats of loss of benefits,
promise of benefits, and oral announcement and warning regarding an
overly broad no-solicitation policy.
Additional Objection B:
In Case 26-CA-7522, the complaint to be issued shortly will allege that
Walter Floyd. an employee, was unlawfully suspended on November 15,
1978, and unlawfully discharged on November 22. 1978. As the suspen-
sion and discharge of Floyd occurred in the critical period preceding the
election and as his suspension and discharge is to he alleged as a violation
of Sec 8(a)( I) and (3) in the complaint in Case 26-CA 7522. it is found
that his additional objection raises material and substantial issues best re-
solaved on tIh basis of record testimony.
220
BROOKWOOD FURNITURE
evidence, 2 I find that the objectionable conduct was
sufficient to warrant setting aside the election and I so
recommend.
My findings mentioned above at sections Ill,B,(4);
III,C,(1); III,D,(2),(3), 22 (4), (8), (9), (10), (14), and (16)
and I1I,E,(2), reflect conduct which sustains the objec-
tions.
Therefore, I recommend that Objections 6, 7, and 9
and additional Objection A be sustained and the election
set aside and a new election ordered.
CONCLUSIONS OF LAW
1. Respondent, Brookwood Furniture, Division of U.S.
Industries, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Upholsterers' International Union of North Amer-
ica, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating its employees about their union ac-
tivities; telling its employee he should change his nega-
tive attitude in regard to the employee seeking a higher
wage rate for another employee; implying that its em-
ployees may get into trouble over a union; threatening its
emloyee that he might get into trouble by involving
himself with the Union; threatening its employee that he
could not afford to vote for the Union because he was a
leadman; threatening its employee that it was afraid the
employee was going to get into trouble by being on the
Union's in-plant organizing committee; and reprimanding
employee Jimmy Lessel because he threatened to file
charges with the National Labor Relations Board, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
4. Respondent, by issuing reprimands to Kawonies
McElhenney on January 4 and 25, and March 1, 1979,
engaged in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the Act.
5. Respondent, by discharging Jerry Wray on March
8, 1979, and Kawonies McElhenney on March 9, 1979,
and thereafter refusing to reinstate Wray and McElhen-
ney, because of their union activity, has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act.
6. Respondent did not engage in unfair labor practices
as alleged in the complaint other than as found above.
21 I specifically find that the evidence does not support the complaint
allegation regarding the suspension and discharge of Walter Floyd
During the hearing the allegations regarding the suspension and dis-
charge of Floyd were deleted from the complaint by amendment. More-
over, I specifically find that evidence, which I credit, demonstrates that
Respondent was not acting illegally when it suspended and discharged
Floyd. In so finding, I discredit the testimony of Floyd. Therefore, I rec-
ommend that additional Objection B. which involves Floyd's suspension
and discharge, be overruled.
22 My findings in sec. tlI,D.(3), supra, regarding the antiunion speech-
es of Tracy Buse demonstrate that Buse's comments were different from
the allegedly violative conduct. However, against the background (of
unfair labor practices as found herein. Buse's admitted comments consti-
tute objectionable conduct. By telling the employees that negotiations
would start from blank, that they may end up with less. more, or the
same benefits they presently enjoy. Buse engaged in objectionahle con-
duct (see Coach and Equipment Sales Corp., 228 NLRB 440) (1977); com-
pare Plasironic. Inc.. 233 NLRB 155 (1977)).
7. 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 unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom, and to take certain affirmative ac-
tions designed to effectuate the policies of the Act. My
recommended Order will require Respondent to offer
Jerry Wray and Kawonies McElhenney immediate and
full reinstatement to their former jobs or, if their former
jobs no longer exist, to substantially equivalent positions,
and to make Wray and McElhenney whole for any loss
of earnings they may have suffered by reason of Re-
spondent's discrimination against them, and to post ap-
propriate notices. Loss of backpay shall be computed and
interest thereon shall be added in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977). 23
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 2 4
The Respondent, Brookwood Furniture, Division of
U.S. Industries, Pontotoc, Mississippi, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act in violation of Section 8(a)(1) of the
Act, by interrogating its employees about their union ac-
tivities; telling its employee he should change his nega-
tive attitude in regard to the employee seeking a higher
wage rate for another employee; implying that its em-
ployees may get into trouble over a union; threatening its
employee that he was "fixing" to get into trouble by in-
volving himself with the Union; threatening its employee
that he could not afford to vote for the Union because
he was a leadman; threatening its employee that it was
afraid the employee was going to get into trouble by
being on the Union's in-plant organizing committee; and
reprimanding employee Jimmy Lessel because he threat-
ened to file charges with the National Labor Relations
Board.
(b) Issuing reprimands to its employees because of its
employees' union activities.
(c) Discharging and thereafter refusing to reinstate its
employees because of their union activities.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2:1 See. generally. Isis Plumbhing & Ihuting Co., 138 NLRB 716 (1962)
24 In Ihe event no exceptions are filed a:s provided b) Sec 102.46 of
the Rules and Regulations of the National Labor Rclalions Board, the
findings, conclusions. and recommended Order herein shall. as provided
in Sec 12.48 of the Rules and Regulations. be adopted h the Board and
become its finding,., conclusions. and (rdCr. and all objectlons thereto
shall be deemed aix ed for all purposes,
221
DECISIONS OF NATIONAL LABOR RELATIONS O()ARD
2. Take the following affirmative action which is
deemed to be necessary to effectuate the policies of the
Act:
(a) Offer immediate and full reinstatement to Jerry
Wray and Kawonies McElhenney to their former jobs
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to their seniority or
other rights and privileges.
(b) Make Jerry Wray and Kawonies McElhenney
whole for any loss of pay they may have suffered as a
result of the discrimination against them in the manner
set forth in the section of this Decision entitled "The
Remedy."
(c) Rescind, expunge from its records, and give no
consideration to warnings issued to its employee Jimmy
Lessel on December 15, 1978, and its employee Kawon-
ies McElhenney on January 4 and 25, and March 1,
1979.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Pontotoc, Mississippi, plants copies of
the attached notice marked "Appendix." 25 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
:~ 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 Pursu-
ant to a Judgment of the United States Courl of Appeals Enforcing an
Order of the National l.ahor Relations Board
222