Fontaine Body & Hoist Co.

National Labor Relations Board - Board Decisions

May 9, 1991

302 N.L.R.B. 863 (N.L.R.B. 1991)

863
302 NLRB No. 150
FONTAINE BODY & HOIST CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 Member Devaney finds it unnecessary to pass on whether the remarks of
Acting Plant Manager Bob Schimel regarding a wage increase violated Sec.
8(a)(1), in view of his adoption of the judge’s finding that the remarks of Vice
President Jerry Keel and Acting President Kelly Dier regarding a wage in-
crease violated Sec. 8(a)(1).
1 All dates are in 1989, unless otherwise indicated.
Fontaine Body & Hoist Company and Industrial
Union Department, AFL–CIO on behalf of
United Steelworkers of America, AFL–CIO.
Case 15–CA–10884
May 9, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 30, 1990, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed cross-exceptions, a sup-
porting brief, and 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,1 and con-
clusions2 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, Fontaine Body and Hoist
Company, Collins, Mississippi, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Denise Frederick and Charlotte White, Esqs., for the General
Counsel.
James C. Hoover, Esq. (Clark, Paul, Hoover, & Mallard), of
Atlanta, Georgia, for the Respondent.
Robert R. Corley, Staff Representative, Steelworkers, of
Pittsburgh, Pennsylvania, and Hubert Coker, Coordinator,
Industrial Union Department, of Jackson, Mississippi, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Hattiesburg, Mississippi, on November 14,
15, and 16, 1989. The charge was filed on May 26, 1989,1
and an amended charge was filed on November 7. The Re-
gional Director for Region 15 issued the complaint on July
31, alleging that Fontaine Body and Hoist Company (the
Company), had violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act. The Company, by its timely an-
swer to the complaint, denied that it had committed the al-
leged unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Fontaine Body and Hoist Company, a Delaware corpora-
tion, manufactures, and sells at nonretail, dump bodies,
hoists, and spreader bodies, at its facility in Collins, Mis-
sissippi, where it annually sells and ships products, goods,
and materials valued in excess of $50,000, directly to points
outside the State of Mississippi. The Company admits, and
I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Company also admits, and I find, that the Industrial
Union Department, AFL–CIO, and the United Steelworkers
of America, AFL–CIO, referred to collectively as the Union,
are labor organizations within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
On February 17, the Union began an organizing campaign
among the employees at the Company’s Collins, Mississippi
facility. Three days later, the Company became aware of the
union activity among its Collins plant employees. On Feb-
ruary 27, a petition seeking a representation election among
those same employees was filed with the National Labor Re-
lations Board (the Board), in Case 15–RC–7434. Thereafter,
the Regional Director scheduled an election in Case 15–RC–
7434 for April 13. However, after unfair labor practice
charges were filed in Cases 15–CA–10839 and 15–CA–
10839–2, the Regional Director postponed the election, at the
Union’s request. The charges in Cases 15–CA–10839 and
15–CA–10839–2 were withdrawn. However, on May 26 and
November 7, respectively, the Union filed the charge and the
amended charge in this case. The issues presented here in-
clude whether, in response to the union activity among its
employees, the Company violated Section 8(a)(1) of the Act
by: (a) interrogating its employees regarding their union ac-
tivity, membership in the Union, and their sentiment toward
the Union; (b) soliciting its employees to revoke their author-
ization of the Union as their collective-bargaining representa-
tive; (c) threatening employees with plant closure, discharge,
layoff, loss of overtime, and other benefits if they selected
the Union as their collective-bargaining representative; (d)
promising increased wages to its employees if they aban-
doned the Union; (e) advising employees that the Company
would never sign a contract, and that selection of the Union
as their collective-bargaining representative would be futile;
(f) creating an impression among its employees that it was
keeping their union activities under surveillance; (g) threaten-
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I based my findings of fact regarding Harvey’s conversation with Super-
visor Fairley on February 17, upon Harvey’s credible testimony. Fairley did
not deny having a conversation with Harvey on February 17, and asking him
about his sentiment toward the Union. Nor did Fairley deny asking Harvey
if he knew about a petition to withdraw from the Union.
3 I based my findings regarding the meeting between Fairley, Griffith, and
Echols, upon Griffith’s testimony. Fairley did not deny questioning Griffith
and Echols about their sentiments toward the Union. Nor did Fairley deny
warning them of plant closure if the Union’s campaign succeeded. Instead he
testified that at some point in time, Echols came to him and asked about a
form to remove his name from the Union’s petition, that Echols signed a slip,
and said he would send Griffith to Fairley, and that Griffith appeared later,
on the same day and asked about the slip. However, I noted that Griffith, who
at the time of the hearing was in the Company’s employ, appeared to be ear-
nestly searching his memory as he provided details of this incident. In con-
trast, Fairley did not seem conscientious about providing his best recollection.
He did not make an effort to fix the time of Griffith’s and Echols’ visits to
him regarding the withdrawal slips. Fairley did not present the assertedly
signed slip to corroborate his testimony. Nor did he disclose its fate. Finally,
withdrawal of support from the Union would have been a logical topic to ac-
company Fairley’s interrogation and threat of plant closure.
ing to blackball employees if they actively supported the
Union; (h) promising promotion to employees if they aban-
doned the Union; (i) interrogating employees regarding the
union membership, activities, and sentiments of fellow em-
ployees; (j) informing employees that the Company had
withheld a bonus from them because they had engaged in
union activity; (k) informing employees that other employees
had received a bonus because they had not engaged in union
activity; and, by (l) promulgating a rule forbidding employ-
ees from talking about the Union while they were working.
Further issues presented are whether the Company violated
Section 8(a)(3) and (1) of the Act by: (a) withholding bo-
nuses from its employees; (b) issuing a warning to employee
Jackie Wayne Owens; and, (c) enforcing plant safety rules
more stringently after April 14.
B. Interference, Restraint, and Coercion
1. Charles Fairley
The Company has employed Bobby Harvey since February
6, 1981. At the time of the hearing in this case, Harvey was
a welder under Charles Fairley’s supervision. Harvey was a
union activist. He signed a petition supporting the Union,
and asked other employees to sign a similar petition. Harvey
also wore a union button at the Company’s plant, 5 days per
week, from April until October.
On February 17, Supervisor Fairley summoned Harvey to
his office. Fairley began by asking Harvey’s opinion of him
as a supervisor. Harvey said he thought Fairley was ‘‘ok.’’
The next topic was the Union. Fairley asked Harvey what he
thought about the Union. Harvey responded that he thought
the Union was ‘‘okay’’ and that he supported it. Fairley
asked if Harvey had heard about the petition to withdraw
from the Union. Harvey said he had, but did not want to
withdraw because he was for the Union. Harvey suggested
that the conversation end. Fairley agreed and sent him back
to work.2
Fairley’s questioning of Harvey’s union sentiment was not
accompanied by any assurance against reprisal if the answer
revealed a prounion attitude. I also noted that Fairley’s ques-
tioning of Harvey was part of a pattern of interrogation, ac-
companied in some instances by threats of economic reprisal
if the Union’s campaign succeeded, and other unlawful at-
tempts to persuade employees to abandon the Union. Against
this backdrop, I find that by Supervisor Fairley’s interroga-
tion of Harvey on February 17, regarding the latter’s attitude
toward the Union, the Company violated Section 8(a)(1) of
the Act. Parma Industries, 292 NLRB 90, 99 (1988).
However, contrary to the General Counsel’s contention, I
find that Fairley’s question regarding whether Harvey was
aware of a petition to withdraw from the Union did not con-
stitute solicitation of withdrawal of support from the Union.
Fairley did not offer to make the petition available to Har-
vey. Nor did he suggest that Harvey sign the petition. I shall
recommend dismissal of the allegation that Fairley addressed
an unlawful solicitation to an employee on February 17.
Employee Douglas Griffith, employed by the Company
since November 1987, supported the Union. During the orga-
nizing campaign, he wore a union button at work. In the frist
or second week of March, after Griffith had begun to wear
the union button, his supervisor, Charles Fairley, invited him
and employee Vincent Echols to Fairley’s office. After Grif-
fith and Echols had seated themselves in his office, Fairley
asked how they felt about the Union. Griffith responded fa-
vorably toward the Union.
Fairley stated that the union campaign was displeasing the
man who was financing the Company. Fairley noted that the
Company was not showing a profit and that this cir-
cumstance also displeased the man, who was continuing to
support the Company because of its president, Kelly Dier.
Fairley slid some preprinted slips of paper toward Griffith
and Echols, saying that by signing them, the employees
would remove their names from the Union’s petition. Griffith
said that he had made up his mind about the Union, but if
he decided to, he would come back and sign it. Echols asked
if he could take the form with him and sign it later, if he
changed his mind. Fairley refused Echols’ request.
In the course of the discussion, Fairley remarked that the
Union posed a threat to the Company’s security. He said that
it was possible that the Company might shut down if the
Union came in.3
Fairley’s questioning of employees Griffith and Echols re-
garding their attitudes toward the Union occurred in a coer-
cive context. Thus, after asking them how they felt about the
Union, Fairley solicited their signatures on documents an-
nouncing their abandonment of the Union, and warned them
of an economic reprisal at the Company’s hands, if the
Union’s campaign succeeded. Fairley’s warning of plant clo-
sure carried with it the specter of job loss, and thus was like-
ly to cause employees to abandon their right under Section
7 of the Act, to support a labor organization seeking to rep-
resent them as their collective-bargaining agent. Further,
Fairley’s supervisory status, and the location of the discus-
sion in his office, gave added impetus to his solicitation of
Griffith’s and Echols’ withdrawals from the Union’s cause,
and added to the coercive atmosphere surrounding the inter-
rogation. Therefore, I find that by Fairley’s attempt to per-
suade Griffith and Echols to abandon the Union, his warning
of plant closure, and his questioning of the two employees
regarding their sentiment toward the Union, the Company
violated Section 8(a)(1) of the Act.
On February 17, Eddie Booth, a welder with 10 years in
the Company’s employ, signed a petition supporting the
865FONTAINE BODY & HOIST CO.
4 I based my findings regarding employee Booth upon his credible and
uncontradicted testimony.
5 I have credited Riley’s testimony regarding his employment, his union ac-
tivity, and his account of his conversation with Fairley on March 10. Fairley
admitted that he conversed with Riley about the Union in March. However,
Fairley seemed reluctant to fix a date for the conversation. Fairley also con-
ceded that he discussed Riley’s loss of wages and his quest for a class A weld-
er’s rating. However, Fairley seemed reluctant to provided details about what
he said to Riley about the withdrawal form, particularly with regard to its
source. Nor did Fairley identify the source of the form in his testimony before
me. However, he did not deny that he furnished it to Riley. Of the two, Riley
impressed me as the more open and forthright witness.
6 King Simmons’ testimony regarding his conversation with Fairley con-
sisted of his recollection that at sometime in the summer of 1989, Fairley
asked him how he felt about the Union and that he answered as I have recited
in my findings of fact. Simmons did not remember when or where this inci-
dent occurred, except that it was in the summer. Nor did he remember that
anything else was said. However, Simmons’ incomplete recollection of the cir-
cumstances in which the conversation occurred cast doubt on his recollection
that the only words which passed between him and Fairley was the latters’
question regarding his attitude toward the Union. As Fairley seemed to be tes-
tifying about the location of the conversation, and Simmons’ question, in a
forthright manner, I have credited these elements of his testimony. However,
Fairley’s version of Simmons’ answer contained an uncomplimentary reference
to the Union, which would have been unseemly, in the context of Simmons’
favorable attitude toward the Union. As Simmons seemed certain of the con-
tent of his response, I have credited his version.
Union. During the ensuing campaign, Booth was an active
and open union supporter.
On March 3, Booth was in Supervisor Fairley’s office.
Fairley asked Booth how he felt about the Union. Booth re-
plied that he had signed a petition and intended to do all he
could to ‘‘get it in the plant.’’4
Fairley’s question regarding Booth’s union sentiment oc-
curred in circumstances similar to those surrounding his in-
terrogation of employee Harvey on February 17. Accord-
ingly, for the reasons stated above, in analyzing his interro-
gation of Harvey, I find that Fairley again violated Section
8(a)(1) of the Act, when he questioned Booth on March 3.
James Riley, a welder with 15 years’ employment with the
Company, signed a petition for the Union in March. He at-
tended three union meetings and was an outspoken union ad-
vocate.
On March 10, he had a conversation with his supervisor,
Charles Fairley, in the latter’s office. Fairley asked how
Riley felt about him as a supervisor. Riley said he liked
Fairley as a foreman.
Fairley turned the conversation to the Union. He asked
Riley how he felt about the Union. Riley answered, in sub-
stance, that because of the way the employees had been
treated, correction was needed. Riley said he was for the
Union because the Company had reduced his wages due to
a misunderstanding about some welding wire.
Replying to Riley, Fairley warned that the Union was ‘‘no
good’’ and only wanted his money. Fairley said he could
help Riley more than the Union could, adding that if Riley
would give him a chance, he would talk to Acting Plant
Manager Bob Schimel about restoring Riley’s wages.
Fairley then reached into his desk and removed a printed
form which he offered to Riley for his signature. The form
was addressed to Hubert Coker, an official of the Union, and
stated: ‘‘I want my name removed from any documents I
signed with your union. This letter serves as notice of my
cancellation of authorization.’’ Riley signed the form and re-
turned it to Fairley.5
After asking Riley to reveal his sentiment toward the
Union, Fairley attempted to pressure him into abandoning the
Union. Fairley offered the possibility of a wage increase and
promotion to welder class A in exchange for Riley’s aban-
donment of the Union. I find that by questioning Riley in
this context, Fairley interfered with, restrained, and coerced
him in the exercise of his right under Section 7 of the Act,
to support the Union. I also find that Fairley unlawfully im-
paired Riley’s statutory right to engage in union activity by
offering to seek a wage increase for him and an enhancement
in his welding grade, in exchange for Riley’s signature on
a form announcing withdrawal of his support from the
Union. By each of these intrusions into Riley’s rights to sup-
port and to actively assist the Union, the Company violated
Section 8(a)(1) of the Act.
In the summer of 1989, while at a drill, at a National
Guard Armory, employee King Simmons approached Super-
visor Fairley, who, at the time, was a lieutenant in the Army
National Guard, and asked his opinion of the Union. Without
expressing his opinion, Fairley turned the question around.
Simmons answered that he knew how things were without a
union and that he would support it.6
The issue raised here is ‘‘whether under all the cir-
cumstances, the interrogation reasonably tends to restrain, co-
erce, or interfere with rights guaranteed by the Act.’’
Rossmore House, 269 NLRB 1176, 1177 (1984). In address-
ing this issue, I noted that the conversation began with em-
ployee Simmons’ request for Fairley’s opinion of the Union.
I also noted that the conversation took place away from the
Company’s plant, during nonworking hours. Finally, Fairley
did not accompany his question with any threat of reprisal,
promise of benefit, or solicitation of Simmons’ withdrawal of
support from the Union. These factors were enough to insu-
late Fairley’s question from the coercive effect of the Com-
pany’s violations of the Act during its 1989 antiunion cam-
paign. I find, therefore, that the General Counsel has not
shown by a preponderance of the evidence, that the Com-
pany violated Section 8(a)(1) of the Act by Fairley’s question
to Simmons regarding his attitude toward the Union. I shall,
therefore, recommend dismissal of the allegation that the
Company violated Section 8(a)(1) of the Act, when Fairley
engaged in interrogation in the summer of 1989.
The Company employed Jackie Wayne Owens as a welder
from February 18, 1985, until it laid him off on September
18.
Beginning in February, Owens actively supported the
Union at the Company’s Collins plant. He signed the
Union’s petition, handbilled at the plant’s gate, attended
union meetings, spoke to several fellow employees in support
of the Union, and wore union buttons. He also wore a T-shirt
bearing the legend ‘‘Union Jobs With Justice.’’
At the beginning of March, his supervisor, Charles Fairley,
invited Owens to leave his work station on the body line,
and go to Fairley’s plant office. After they had arrived at his
office, Fairley asked Owens how he felt about the Union.
Owens said that he was ‘‘trying to get the facts from both
sides.’’
The discussion continued: Fairley remarked that he had
been in a union and that the only thing a union accomplished
for him was to take his money. Fairley also said that the
Union would not provide food for the table. Fairley sug-
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Fairley testified cautiously. He seemed reluctant to try to remember the
dates or approximate time when incidents occurred. Instead of providing a
month or week or other approximation in reference to the scheduled election,
Fairley testified that he could not remember when the incident occurred. He
also seemed reluctant to disclose that he was the source of the withdrawal
form, which Owens obtained in March. Finally, when testifying about con-
versations, he seemed, for the most part, reluctant to provide their content.
In contrast, Owens testified more openly. He seemed to be giving his full
recollection of events and conversations. Accordingly, where Owens’ and
Fairley’s testimony conflicted, I have credited Owens. I have also credited
Owens’ testimony regarding his employment and union activity.
8 Fairley denied that he ever had any discussion with George Barnes about
the Union. He also denied that he talked to Barnes about signing a slip to
get out of the Union. However, of the two, Barnes was more conscientious
about searching his memory. Further, Barnes seemed to be more at ease as
gested that supporting the Union would be futile. He said the
Company would not execute a contract with the Union.
Offering a slip of paper to Owens, Fairley suggested that
the employee sign it to remove his name from the Union’s
petition. Fairley warned that if Owens did not sign the slip,
his name would go into a computer. Thus, his prounion atti-
tude would become widely known, and no one would hire
him. Owens took the slip, which was identical with the one
received by employee Riley, and left Fairley’s office.
On the following day, Owens returned to Fairley’s office,
after having signed the slip. As he returned the signed with-
drawal form to Fairley, Owens asked who would see it.
Fairley assured him it would be confidential and would be
seen only by Fairley and Hob Schimel, the acting plant man-
ager.
Fairley sought to enlist Owens as a spy for the Company
in its effort to resist the Union. He instructed Owens to act
as if he were supporting the Union, attend union meetings,
and report what had happened to Fairley. Fairley also asked
Owens to urge other employees to withdraw their support
from the Union.
Fairley told Owens that a leadman type job was opening
up. Fairley continued, saying that as Owens had signed the
withdrawal form, he, Fairley, had recommended Owens for
the job. Fairley also said he saw no reason why Owens
should not obtain the job, as he had withdrawn his name
from the Union’s petition.
One day later, Fairley called Owens into his office and
asked about a union meeting which had occurred on the pre-
vious evening. Owens had not attended, and did not know
what had happened at the meeting. Fairley told Owens to ask
someone who had been to the meeting, and report back to
him.
On the morning of April 5, after handbilling at the plant,
Owens took one of the fliers to Fairley’s office and showed
it to him. The handbill spoke of a debate between the Com-
pany and the Union. After reading the handout, Fairley re-
marked that the Company wanted to talk to the employees
rather than to the Union. He also stated, in substance, that
if the Union won the election, the Company would shut the
Collins plant down.
Nine days later, Fairley came to Owens’ work station, on
the body line, and told him to look for another job. In the
ensuing discussion, Fairley said that Owens’ ‘‘bull shit
days’’ at the Company were over. He also said, in substance,
that as Owens was unhappy with the Company and wanted
the Union so much, he should seek other employment.7
The context in which Fairley asked Owens to disclose his
sentiment toward the Union was full of hostility toward
union activity. Fairley was pursuing an antiunion campaign,
which included unlawful interference, restraint and coercion.
During February and March, Fairley repeatedly questioned
employees about their attitude toward the Union. Also, dur-
ing the same period, he threatened employees with economic
reprisals if they selected the Union as their collective-bar-
gaining representative. Further, he solicited their withdrawal
of support from the Union. Indeed, I have found that by this
conduct toward other employees during February and March,
the Company violated Section 8(a)(1) of the Act. I also noted
that Fairley used his office as the situs of his interrogation
of Owens, whom he supervised.
Fairley also accompanied his question to Owens with un-
lawful conduct. For, when he questioned Owens in early
March, Fairley violated Section 8(a)(1) of the Act by solic-
iting his withdrawal of support from the Union, by seeking
to obtain the withdrawal with the threat of putting Owens’
name on a widely publicized list of prounion employees,
which would impair his employment opportunities, and by
telling him that supporting the Union was futile, as the Com-
pany would never execute a contract with the Union. I also
find, therefore, that by asking Owens how he felt about the
Union, Fairley impaired the employee’s statutory right to
support the Union, and thereby violated Section 8(a)(1) of
the Act.
I find that Fairley violated Section 8(a)(1) of the Act, by
giving the impression that the Company was keeping its em-
ployees’ union activity under surveillance. He did so first by
asking Owens to engage in espionage on the Company’s be-
half, and again, by pressing Owens to ask another employee
about what happened at a union meeting.
Fairley also violated Section 8(a)(1) of the Act, when he
held out the possibility of promotion to Owens as a reward
for having withdrawn his support from the Union. I find that
by offering this reward, Fairley was seeking to ensure against
renewal of Owens’ support for the Union.
Turning to April 5, I find that Fairley threatened Owens
and his fellow employees with an economic reprisal if they
selected the Union as their collective-bargaining representa-
tive in the scheduled Board election. I also find that the
Company, by that threat, restrained, coerced, and interfered
with its employees in the exercise of their right under Sec-
tion 7 of the Act, to support a union for the purpose of col-
lective bargaining, and thereby violated Section 8(a)(1) of the
Act.
By his remarks to Owens on the morning of April 14,
Fairley conveyed the message that support for the Union and
continued employment by the Company were incompatible.
Thus, Fairley was threatening discharge as a reprisal for
Owens’ union activity. I also find that Fairley’s remarks on
that occasion were coercive and therefore violated Section
8(a)(1) of the Act. Rolligon Corp., 254 NLRB 22 (1981).
In March, Fairley told employees in the plant cleaning
area, that slips to withdraw names from the Union’s petition
were available in his office. In passing, Fairley said that the
employees did not need a union. He also warned that if the
employees had a union, they might have less; their pay rate
might be more or less; their benefits might be less, and if
work slowed down, the Company would make them punch
out and go home. Finally, Fairley asked Barnes what he
thought of the Union.8
867FONTAINE BODY & HOIST CO.
he testified on both direct and cross-examination. Therefore, I have credited
Barnes’ account of Fairley’s remarks in the plant cleaning area in March.
9 Par. 7(b) of the complaint alleged that ‘‘on March 3, the frist or second
week of March, and March 10, 1989,’’ Charles Fairley solicited company em-
ployees ‘‘to sign a document cancelling their authorization for the Union to
act as their bargaining representative.’’ The complaint did not allege that in
his remarks to Barnes and other employees in the plant cleaning area, in
March, Fairley violated Section 8(a)(1) of the Act by threats or interrogation.
However, Barnes testified about the threats and interrogation. Further, Fairley
denied that he spoke to Barnes about the withdrawal forms or about the Union,
or that he interrogated Barnes about his attitude toward the Union. Thus, I find
that the issues of fact regarding the asserted threats and interrogation were
fully litigated before me. Also, Barnes’ testimony showed that my findings
that the threats and the questioning of Barnes regarding his attitude toward the
Union were unlawful, are closely related to the solicitation alleged in the com-
plaint. Therefore, in accordance with Board policy, I have found that the
threats and interrogation, referred to in Barnes’ testimony, violated the Act,
even though the complaint did not include such allegations. Sunbeam Corp.,
287 NLRB 996, 998 fn. 8 (1988).
10 I relied on Hicks’ credible and uncontradicted testimony in making my
findings of fact regarding his conversations with Supervisor Price, who did not
testify.
11 Contrary to Owens’ testimony, Supervisor Fairley denied that Supervisor
Price threatened Owens with loss of his job if he continued to engage in union
activity. Price did not testify. However, for the reasons stated in fn. 7, above,
I have credited Owens’ testimony regarding his encounter with Supervisor
Price on April 5.
I find that Fairley’s remarks to the employees in the plant
cleaning area included threats of economic reprisals if a
union represented the Company’s employees as their collec-
tive-bargaining representative. Fairley’s threat extended to
wage reductions, benefits, and layoffs. I find that by Fairly’s
threats, the Company violated Section 8(a)(1) of the Act.
Fairley’s announcement that forms were available in his
office, by itself would not constitute solicitation of employ-
ees to cancel their support for the Union. However, with the
addition of Fairley’s threats of economic reprisal and his re-
mark that the employees did not need a union, the announce-
ment became a solicitation of withdrawal of support from the
Union. Such a solicitation by a supervisor is coercive and
impairs the right of employees to support a labor organiza-
tion under Section 7 of the Act. I find that by Fairley’s solic-
itation of employees to execute forms announcing their with-
drawal of support from the Union, the Company violated
Section 8(a)(1) of the Act.
By asking Barnes to disclose his sentiment toward the
Union, Supervisor Fairley again engaged in unlawful con-
duct. This question came in the wake of Fairley’s unlawful
threats of economic reprisal and his unlawful solicitation of
employees’ signatures on forms for withdrawing support
from the Union. I find, therefore, that Fairley coerced Barnes
by asking him what he thought about the Union. I also find
that by Fairley’s question, the Company violated Section
8(a)(1) of the Act.9
2. Moisy Price
Joseph Hicks, a maintenance electrician, who has worked
for the Company since July 1983, actively supported the
Union’s preelection campaign. He signed a petition sup-
porting the Union, handbilled, wore prounion buttons and a
union badge, encouraged other Company employees to join
the Union, and was on the Union’s committee.
On February 21, Hicks’ supervisor, Moisy Price, ap-
proached him in the plant’s maintenance stockroom, and
began to talk about the Union. Price warned that if the Union
campaign succeeded, Hicks could be fired or laid off. Price
also said that if the Union came in, Hicks might also lose
overtime work and holiday pay, and the plant might close.
Two days later, in the plant, in the presence of employees
Hicks and Jimmy Mooney, Supervisor Price announced that
he had received some papers from Bob Schimel which, if
signed by an employee, would announce that the signatory
was abandoning the Union. As Price put the papers into a
desk drawer, Hicks asserted that he was undecided, and
would let Price know.
Two days later, at the plant, in the presence of another
employee, Price asked Hicks if he was ready to sign the
withdrawal form. Price remarked that the form would be in
his desk, whenever Hicks decided to sign it.
On April 17, at the plant, in the presence of two other em-
ployees, Moisy Price came to Hicks and asked him where he
stood on the Union. Price said he had to know whether
Hicks was ‘‘union or non-union.’’ Hicks replied that he was
undecided. When Price pressed him further for an answer,
Hicks said he would answer upon returning from funeral
leave.10
I find that Supervisor Price’s remarks on February 21,
though stated as his ‘‘point of view,’’ came from a member
of the plant’s management, who probably heard the Com-
pany’s expressions of intent. Thus, as Hicks listened, he
heard that the Union’s success in organizing the plant would
provoke the Company to discharge him, or lay him off, cut
his overtime hours, eliminate his holiday pay, and, possibly,
close the plant. I find that by these threats, Supervisor Price
sought to coerce Hicks into surrendering his right under the
Act to support the Union. Therefore, I find that by Price’s
threats, the Company violated Section 8(a)(1) of the Act.
I also find that by offering a withdrawal form to Hicks on
February 23 and again on March 10, Price was again trying
to coerce him into abandoning the Union. I find that by
Price’s solicitation of Hicks’ withdrawal from the Union, the
Company again violated Section 8(a)(1).
Supervisor Price engaged in coercive interrogation on
March 10, when he asked Hicks if he was ready to sign a
withdrawal form. For, by his question, Price was asking
Hicks about his union sentiment. In posing that question
while unlawfully soliciting Hicks’ withdrawal from the
Union, and against the background of unlawful threats of
economic reprisal if the Union’s campaign succeeded, I find
that Price violated Section 8(a)(1) of the Act.
Similarly, I find that Supervisor Price coercively interro-
gated Hicks on April 17. On that occasion, he again asked
Hicks to disclose his attitude toward the Union. The back-
drop of union animus, which was present on March 10, per-
sisted on April 17. Price’s insistence on an answer aggra-
vated the coercive effect of his questioning of Hicks’ union
sentiment. Accordingly, I find that by questioning Hicks
about his union sentiment on April 17, the Company violated
Section 8(a)(1) of the Act.
On the morning of April 5, employee Jackie Owens en-
countered Supervisor Price in Supervisor Charles Fairley’s
office. Owens arrived after handbilling for the Union, and of-
fered a copy of the handout to Fairley. After Fairley com-
mented, Price joined the discussion. Price asked Owens if he
wanted his job. Owens answered yes. Price told Owens that
he had ‘‘better leave the union stuff alone.’’11
Price’s warning to Owens was clear. If Owens wished to
remain in the Company’s employ, he should cease his union
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Supervisor Sanford did not testify in this proceeding. I based my findings
of fact regarding Sanford’s remarks about the Company’s attitude toward the
Union, on the credible testimony of employee Eddie Booth and former com-
pany employees James Edmon Jr. and Jackie Owens.
13 I based my findings of fact regarding Sanford’s solicitation of Edmon’s
withdrawal of support from the Union on the latter’s uncontradicted testimony.
14 Supervisor Wise did not testify before me. I based my findings of fact
regarding Wise’s remarks on employee Irwin’s testimony.
activity. By this implied threat of discharge if Owens contin-
ued to support the Union actively, Price sought to coerce him
into abandoning his statutory right to assist a labor organiza-
tion. I find that by Price’s threat to Owens, the Company
violated Section 8(a)(1) of the Act.
I find from the testimony of George Barnes, that in March,
at the plant, Supervisor Price asked him what he thought
about the Union. In light of the Company’s resort to dis-
crimination and other unfair labor practices to eradicate the
Union’s support among its employees, I find that Price’s
question was coercive. Accordingly, I find that by Price’s
question to Barnes, the Company violated Section 8(a)(1) of
the Act.
3. Douglas Sanford
On three occasions, Company Supervisor Douglas Sanford
suggested the futility of the employees’ support for the
Union’s effort to become their collective-bargaining rep-
resentative. The first occurred, when Supervisor Sanford ap-
proached employee James Edmon Jr. at the plant, on March
1, and conversed with him about the Union. In the course
of the exchange, Sanford said ‘‘it would be good if the guys
would stick together, but they are not going to stick together,
and even if they did go along with it, Kelly Dier would
never go along with the Union.’’ At the time Sanford spoke,
Dier was the Company’s president. On March 3, Sanford told
employees Eddie Booth and John Johnson that the Company
would never have a union. When Booth asked why, Sanford
answered that ‘‘Kelly Dier won’t ever sign a contract.’’ In
the third incident, on April 5, Sanford told employee Jackie
Owens, that the Company would never sign a contract with
the Union and would not agree to anything.12
I find that by telling employee Edmon that the Company’s
president ‘‘would never go along with the Union,’’ Super-
visor Sanford was creating the impression that it would be
futile for the employees to select the Union as their collec-
tive-bargaining agent. Edmon was likely to gather from
Sanford’s remark, that when Kelly Dier refused to accept the
Union as his employees’ bargaining agent, there would be no
bargaining between the Company and the Union. According
to Sanford’s remark, Dier would refuse to bargain, even if
all of the Company’s employees supported the Union. By
thus telling employee Edmon that it would be futile for the
Company’s employees to support the Union as their collec-
tive-bargaining representative, Sanford violated Section
8(a)(1) of the Act. Jones Plumbing Co., 277 NLRB 437, 440
(1985).
Sanford’s remarks to employees Booth and Johnson, on
March 3, and to employee Owens on April 5, also painted
pictures of futility confronting the employees if they insisted
on selecting the Union as their collective-bargaining agent. I
find that by those remarks, the Company violated Section
8(a)(1) of the Act.
On March 7, Supervisor Sanford approached employee
Edmon, at the plant. Sandford offered to him a copy of the
withdrawal form previously quoted, at p. 5, which stated, in
substance, that the signatory employee was removing his or
her signature from any document he or she had signed for
the Union, and canceling the Union’s authorization to act as
his or her representative. Sanford urged Edmon to sign the
form, stating that no one but Edmon and Sanford would
know that he had signed it. Sandford furnished the address
to which Edmon was to send the signed form. Edmon folded
it and put it into his pocket.13
I find that by pressuring Edmon into signing a withdrawal
form stating that he no longer supported the Union, Sanford
attempted to coerce him into surrendering his statutory right
to choose a labor organization to represent him and his fel-
low employees for purposes of collective bargaining. I also
find, therefore, that by this conduct, the Company violated
Section 8(a)(1) of the Act. Adair Standish Corp., 290 NLRB
317, 318 (1988).
4. Steve Wise
At the Company’s plant, on February 20, at the end of a
break, employee Dennis W. Irwin, an active union supporter,
told Supervisor Steve Wise that, despite his strenuous sup-
port for the Union, he, Irwin, wanted their friendship to con-
tinue. Wise responded, warning that ‘‘they would close the
plant if the Union came in.14
On April 5, Irwin was in a group of about 30 employees
at a meeting at the plant. Also present were Jerry Keel, who
was a vice president of the Company’s parent, Acting Plant
Manager Bob Schimel, and Supervisors Moisy Price and
Steve Wise. Keel conducted the meeting in which the subject
of plant closing arose. Someone asked Keel to comment on
a remark by a member of management, that if a union came
in, the Company would close the Collins plant. Keel an-
swered ‘‘Well, if someone in management said that, then
they are wrong.’’ He asserted that the Company’s parent had
‘‘two union operations’’ and both were ‘‘going.’’ Keel stated
that the Company’s parent had lost an election at its Bir-
mingham operations, but did not close it. He added: ‘‘[J]ust
because a union comes in, doesn’t mean we would close the
plant down.’’
Following Keel’s remarks, employee Irwin stated that Su-
pervisor Steve Wise had warned that the Company would
close its plant if the Union succeeded in its campaign. Wise
disputed Irwin’s assertion, but admitted telling Irwin that the
plant might close if the Union came in. In his testimony,
Keel admitted that in responding to Irwin’s rendition of
Wise’s remark, he said that ‘‘if we lost the election here, that
doesn’t mean, to set the record straight, that certainly the
plant would shut down.’’
I find that Supervisor Wise’s warning on February 21 was
as stated in Dennis Irwin’s credited testimony. Wise’s warn-
ing was a threat of Company retaliation, issued to coerce a
listening employee into abandoning the Union.
I also find that Keel’s remarks on April 5 did not erase
the coercive impact of Wise’s threat. Initially, Keel assured
his listeners that a union’s success in organizing the Com-
pany’s employees would not necessarily cause the closing of
its plant. However, Keel left open the possibility of plant clo-
sure if the Union organized the Company’s employees, when
he responded to Irwin. In short, I find that Vice President
Keel’s response to Irwin suggested that by supporting the
869FONTAINE BODY & HOIST CO.
15 The complaint did not allege that Vice President Keel’s remarks violated
Sec. 8(a)(1) of the Act. However, the facts regarding Keel’s remarks were
fully litigated. Indeed, my findings in this regard flowed from his testimony.
Further, Keel’s implied warning was closely related to Wise’s threat, which
the complaint included among its allegations. Accordingly, in keeping with es-
tablished Board policy, I considered Keel’s remarks and determined that they
included an unlawful threat.
16 In his testimony, Kirkley denied telling Owens and Sanford that the Com-
pany would never sign a contract with the Union. On cross-examination, when
asked to recount what he had said about the Company signing a contract, he
answered: ‘‘I probably made a statement that it was unlikely that we would,
according to past history, because there had been two or three other attempts
at Fontaine and nothing ever—you know, no contracts were ever signed there,
that I can recall.’’
Kirkley’s use of ‘‘probably’’ to introduce his testimony, severely diminished
its reliability. He also seemed uncertain as he offered the quoted testimony.
In contrast, Jackie Owens testified about Kirkley’s remarks in a self-assured
manner, and seemed to be providing his recollection in a candid manner. Ac-
cordingly, I have credited Owens testimony regarding Kirkley’s remarks.
17 I based my findings of fact regarding Keel’s remarks to the employees
on April 5, on his and employee Dennis Irwin’s testimony. Of the witnesses,
who testified about those remarks, Keel and Irwin were the most conscientious
about providing detailed recollections, and did so in a forthright manner, on
direct and on cross-examination.
Union, the employees were risking their jobs. By making
that suggestion to the Company’s employees, he impaired
their right under the Act to assist the Union. In sum, I find
that by Wise’s warning on February 21 and Keel’s implied
threat on April 5, the Company violated Section 8(a)(1) of
the Act.15
5. Johnny Kirkley
At the end of March, at the Company’s plant, Supervisor
Johnny Kirkley conversed about the Union with employees
Donald (Shorty) Sanford and Jackie Owens. In the course of
the discussion, Kirkley said that ‘‘Fontaine would never sign
a contract with the Union.’’16
By his remark, Kirkley implied that supporting the Union
was an exercise in futility. There would be no point to se-
lecting the Union as the employees’ collective-bargaining
representative, if the Company’s predisposition was to refuse
to sign any contract with it. I find that by Kirkley’s remark
to Sanford and Owen, the Company violated Section 8(a)(1)
of the Act.
6. Bob Schimel
Former employee George Barnes testified that in March,
Schimel told a meeting of employees, at the plant, that be-
cause of union activity, the Company would not grant any
raises or bonuses. Barnes could not recall anything else that
Schimel may have said at that time.
According to Jackie Owens, in mid-March, at a meeting,
at the plant, attended by employees Eddie Roy, George
Barnes, Jackie Owens, and others, Acting Plant Manager Bob
Schimel talked about a bonus. Owens also testified that
Schimel told the employees that he could not give a bonus
to them because of their union activities, and that had he
granted a bonus, the Union would have filed an unfair labor
practice charge against the Company.
Former company employee Carl Hudson testified that dur-
ing the first 13 days of April, Schimel held a second meeting
with between 15 to 25 Company employees, at the plant. Ac-
cording to Hudson and George Barnes, in answer to a ques-
tion from an employee, Schimel told the assemblage, in sub-
stance, that they would not receive raises or bonuses from
the Company because union activities were going on.
Reflecting on the testimony of Barnes, Owens, and Hud-
son, I noted infirmities which cast doubt upon its reliability.
According to Barnes, at a meeting with 15 or 16 employees,
Schimel’s only remark was an answer to a question by an
employee. Barnes did not appear to be searching his memory
for more details regarding this meeting. At first, Owens testi-
fied that Schimel said he could not give a raise to the em-
ployees. When counsel prompted him, he quickly changed
his testimony, stating that Schimel referred specifically to a
bonus. Hudson’s memory was sketchy and selective. None of
the three testified with confidence. In sum, they were not
convincing witnesses regarding Schimel’s remarks.
On direct examination, Schimel denied that he told em-
ployees that the Company was withholding bonuses and
wage increases because of union activity. He also testified
that he told the Company’s employees, on numerous occa-
sions during the Union’s campaign, that the Company could
not make any adjustment in their wages ‘‘as long as we were
within the campaign, that we had to wait until the resolution
of the campaign and if the Union won the election, then the
wages would be part of the contract.’’ Schimel also testified
that in the same discussions, he told the employees that ‘‘if
the Company won the election, we would continue our re-
view and make a disposition at that point.’’ I have credited
Schimel’s version of his remarks, which he gave in a forth-
right manner.
Schimel’s remarks to the Company’s employees during the
preelection campaign, regarding wages, suggested that an in-
crease was more likely if the employees rejected the Union.
According to Schimel, if the Company won the election, it
would proceed with a current review of its employees’ wages
and make adjustments. If the Union won, the Company
would not proceed with its wage review. Thus, the Company
would stop its effort to determine what if any wage increases
would be appropriate for its employees. Schimel was imply-
ing that the price for the Company’s willingness to proceed
with its wage review was rejection of the Union by the em-
ployees. I find, therefore, that Schimel’s remarks violated
Section 8(a)(1) of the Act. Blackstone Co., 258 NLRB 945,
948 (1981).
7. Jerry Keel
Vice President Jerry Keel, of the Company’s parent cor-
poration, held a meeting with the body line employees, at the
Collins plant, on April 5. Among the topics he discussed
with the assembled employees, were bonuses and incentive
raises. Keel told the employees that the Company could not
give them raises or bonuses or change classifications or work
rules, as long as the union campaign was going on. He also
stated, in substance, that if the Company granted wage in-
creases or bonuses during the union campaign, they would
be seen as an attempt to pressure employees to vote against
the Union.
During the same meeting, employee Donald McRaney
asked Keel why the Company had granted a wage increase
to its office employees and had not done so for its plant em-
ployees. Keel replied: ‘‘Why should we penalize those peo-
ple? They are not in the union campaign. We will go ahead
with normal procedure. Whatever normal procedure is.’’17
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Kelly Dier did not testify. I based my findings regarding Dier’s remarks
to the April meeting of the Company’s plant employees, on Jackie
Owens’testimony.
19 I have based my findings regarding Dier’s remarks at the summer meeting
with company employees, on employee King Simmons’ detailed and authentic
sounding testimony. Dier did not testify. Instead, Supervisor Bob Schimel de-
nied that Dier talked about wages or bonuses during the meeting on April 13
or 14. However, I noted that Schimel had opportunity to present his recollec-
tion of Dier’s remarks, but did not do so. This restraint contrasted with his
earlier credited testimony, in which he seemed to be providing his full recol-
lection in a frank manner. Therefore, I have not credited Schimel’s denials.
20 Supervisor Sanford did not testify. I based my findings regarding his im-
position of the prohibition of talking about the Union, during worktime, on
Edmon’s uncontradicted testimony.
21 My findings regarding Fairley’s remarks to the body line employees were
based on former employee Carl Hudson’s testimony. Both on direct and on
cross-examination, Hudson appeared to be giving his honest recollection of Su-
pervisor Fairley’s remarks.
On direct examination, without providing a specific date, Fairley gave a
very condensed version of his remarks to his employees after cancellation of
the representation election. According to Fairley, he ‘‘spoke of getting back
on productive type terms and stop the walking and talking.’’ He did not ex-
plain his cryptic reference to ‘‘walking and talking.’’ Nor did the Company’s
counsel ask Fairley to define the ‘‘walking and talking’’ to which he referred
in his talk to his subordinates. The timing of the stricture suggested that union
activity during work time was the target of his remarks. In any event, Fairley’s
testimony did not include any denial of Hudson’s more detailed version of
Fairley’s remarks.
22 Fairley testified that on April 14, he ‘‘warned Jackie several times about
talking and going back to work, but he continued to talk.’’ Fairley also testi-
fied that he had asked Owens not to talk ‘‘on several occasions.’’ In both in-
stances, Fairley seemed reluctant to provide any details such as when and how
often he had warned Owens.
The Board has recognized that an employer’s assertion to
its employees that it is withholding a wage increase or other
benefits because of a union’s organizing campaign among
them and the risk that the employer would violate the Act
if it granted such an increase, is violative of Section 8(a)(1)
of the Act. Sunbeam Corp., 287 NLRB 996, 1007–1008
(1988). For such remarks suggest that the employer is pun-
ishing the employees because they are engaged in union ac-
tivity. Here, Vice President Keel’s remarks, as found above,
included such a suggestion, when he explained why the
Company could not grant wage increases or bonuses to the
plant employees. Keel amplified the suggestion of punish-
ment, when he answered employee McRaney’s question re-
garding the office employees. I find, therefore, that by Keel’s
remarks, the Company violated Section 8(a)(1) of the Act.
8. Kelly Dier
At a meeting of the plant employees, on April 13 or 14,
at the Collins plant, the Company’s acting president, Kelly
Dier, explained that after the Union had organized the plant,
he would wait for the employees to get rid of it. Then, ac-
cording to Dier’s remarks to the employees, the Company
would grant a wage increase, and the employees could get
back to work. Dier also asserted, in substance, that the Com-
pany had granted wage increases to nonplant personnel be-
cause they were not involved with the Union.18
During the summer, Kelly Dier addressed another meeting
of Company employees. He spoke about incentive wage in-
creases. He recognized that the employees were dissatisfied
with existing incentive rates and said he intended to improve
them. Dier remarked that he did not know whether it would
be 3 or 5 percent, but he had decided to do something. He
said, however, that due to the union activity, he could not
grant any raise to the plant employees and must wait ‘‘until
the union matter [is] settled.’’19
I find that Kelly Dier’s remarks to the plant employees in
April, was an attempt to drive a wedge between the employ-
ees and the Union by offering the employees a wage increase
if they disavowed the Union. In his summer remarks, Dier
blamed the Union and union activity for his decision to with-
hold incentive rate increases. He also suggested that if the
employees rejected the Union and ceased their union activity,
the increases would be forthcoming. In both instances, Dier
impaired the rights of his employees, under Section 7 of the
Act, to support a union and engage in union activity. I fur-
ther find, therefore, that by Dier’s remarks, the Company
violated Section 8(a)(1) of the Act.
9. The rule forbidding employees from talking about
the Union
On April 14, 1 day after the Regional Director had post-
poned the scheduled representation election at the Com-
pany’s plant, Supervisor Doug Sanford imposed a new rule
regarding talking at work. Sanford told employee James
Edmon Jr., and other employees on the second shift, that
they could talk about the Union on their own time, during
breaks or lunch, but not while they were working.20
Supervisor Steve Wise introduced the new rule at a meet-
ing with employees, at the Company’s plant, on the morning
of April 14. I find from employee Donald McRaney’s
uncontradicted testimony, that Wise declared:
[W]e have a lot of work to do; we have to put all the
union talk behind us now, and there won’t be any more
talking about the union unless it is before work, during
our breaks, or after work.
On April 18, Supervisor Charles Fairley told a group of
the Company’s body line employees of a new rule regarding
talking about the Union during working hours. He said, in
substance, that the union campaign had failed, that ‘‘poli-
tics’’ were ‘‘over’’ and that if he heard further discussion
about the Union while the employees were working, he
would deal with them ’’accordingly.21
It is well settled that an employer violates Section 8(a)(1)
of the Act by implementing a rule prohibiting employees
from discussing union matters, while permitting them to dis-
cuss other matters. Turnbull Cone Baking Co. v. NLRB, 778
F.2d 292, 296 (6th Cir. 1985). I find, therefore, that the
Company violated Section 8(a)(1) of the Act, when Super-
visors Sanford, Wise, and Fairley implemented a rule prohib-
iting employees from discussing the union while working.
C. Alleged Discrimination
1. Jackie Owens’ warning
On April 14, employee George Barnes, who worked else-
where in the plant, came to Jackie Owens, who was welding
on the body line, and asked a favor of him. Barnes asked
Owens to accompany him when he took his wife to a hos-
pital, in Jackson, Mississippi, after work.
As Owens began to answer, Supervisor Fairley came up
and summoned Owens to his office. Owens went with
Fairley, who scolded him. Fairley complained that Owens in-
sisted on having his way and that must stop.22
871FONTAINE BODY & HOIST CO.
Fairley also testified that he decided to issue the verbal warning to Owens
on April 14 because he ‘‘wasn’t getting his attention, so I needed to do some-
thing to grab Jackie’s attention.’’ However, Fairley’s testimony did not include
any account of an incident in which he caught Owens talking to an employee
and admonished him about it. Instead, the record shows that prior to April 14,
Fairley permitted Owens to argue with other employees, during worktime,
about their doing work which Fairley had assigned to Owens.
The foregoing circumstances, and my impression that Fairley was not pro-
viding his full recollection of significant events and conversations in which he
participated, cast doubt on the reliability of his testimony, where it conflicted
with Owens’. For of the two, Owens seemed to be the more forthright. There-
fore, I have rejected Fairley’s version of his encounter with Owens on the
afternoon of April 14, leading up to the issuance of the verbal warning to
Owens.
Fairley wrote a warning for talking, but could not give a
copy to Owens until later in the day. In his writeup, Fairley
declared that ‘‘all talking wag to be done during breaks.’’ As
he handed the warning to Owens, Fairley told him to ‘‘be
sure to show this to the union people.’’
The General Counsel argued that Fairley issued the warn-
ing because of Owens’ union activity. The Company urged
dismissal of the allegation of discrimination against Owens,
on the ground that there was no showing that the disciplinary
warning issued to him constituted disparate treatment. I find,
for the reasons stated below, that the warning to Owens was
unlawful.
Section 8(a)(3) and (1) of the Act prohibit an employer
from imposing a disciplinary warning on an employee to dis-
courage membership in, or activity on behalf of a union.
Storer Communications, 287 NLRB 890, 900 (1987). Where
the record shows that opposition to union activity was a mo-
tivating factor in an employer’s decision to take adverse ac-
tion against an employee, involving his or her employment,
the employer will be found to have violated the Act unless
the employer shows that the adverse action would have been
taken even in the absence of union activity. NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 400, 403 (1983).
Where the employer’s explanation for its action are
pretextual—that is, if the reasons either did not exist or were
not in fact relied upon—the employer has not met its burden
and the inquiry is logically at an end. Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982); Wright Line, 251 NLRB 1083, 1084 (1980), enfd. on
other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).
As shown above, at the beginning of the organizing cam-
paign, Owens was an open and outspoken union advocate. In
February, he signed the Union’s petition. Owens also
handbilled at the Company’s gate. He wore five prounion
buttons and a prounion T-shirt.
In March, Owens’ conduct suggested that he had changed
his mind about the Union. When Supervisor Fairley asked
about his union sentiment, Owens replied that that he was
trying to get the facts from both sides. Fairley gave a form
to Owens, suggesting that he sign it to remove his name
from the Union’s petition. On the following day, Owens re-
turned the signed withdrawal form to Fairley.
After obtaining Owens’ signed withdrawal form, Fairley
asked him to be a Company spy. Fairley instructed Owens
to continue the appearance of being for the Union, to attend
union meetings, and report what had happened there to
Fairley. There was no showing that Owens carried out
Fairley’s instructions.
Owens continued to support the Union openly. He
handbilled for the Union early on the morning of April 5.
Before going to work, Owens took one of the handbills to
Fairley. As found above, Fairley read the handbill and
warned that the Company would shut the plant down if the
Union won the pending election.
Shortly before 7 a.m., on April 14, Owens gave a union
handbill to Fairley. The handbill announced the cancellation
of the scheduled representation election.
Fairley’s conduct on April 14, showed that he considered
Owens to be a union supporter. As found above, on that
morning, Fairley told Owens to look for another job, and
strongly suggested that Owens’ prounion sentiment was in-
compatible with his employment by the Company. As I have
concluded above, Fairley’s advice to Owens implied that if
he did not quit, the Company would discharge him. Finally,
while handing the warning to Owens, Fairley suggested sar-
castically that he show it to the Union.
During February, March, and April, the Company repeat-
edly gave vent to its strong union animus. Coercive interro-
gation, solicitation of employees to abandon the Union,
threats of economic reprisal, and other violations of Section
8(a)(1) of the Act, as found above, punctuated the Com-
pany’s effort to discourage its employees from supporting the
Union. Supervisor Fairley was a major participant in the
Company’s antiunion campaign, and contributed considerably
to the list of its unfair labor practices. Significantly, Owens
was a frequent target of Supervisor Fairley’s attempts to dis-
courage employees from supporting the Union.
The timing of Fairley’s issuance of the warning to Owens
lends further support to the General Counsel’s contention.
For this disciplinary notice came in the wake of Owens’
handbilling on April 14, and Fairley’s thinly disguised warn-
ing that Owens’ job was in jeopardy because of his union
activity.
In sum, I find that Fairley was aware of Owens’ prounion
sentiment on April 14, and that Fairley’s hostility toward the
Union and Owens’ support for the Union had surfaced on
and before that date, and had taken the form of a threat
aimed at Owens’ job. The timing of the disciplinary notice,
on the very day on which Fairley had made that threat, pro-
vides the final element in the General Counsel’s prima facie
showing that Owens’ persistent union activity provoked
Fairley to punish him.
The Company argues in its brief that Owens received the
verbal warning on April 14, because he violated a plant ban
on talking during worktime. However, the Company’s prof-
fered explanation does not withstand analysis.
There was no showing that on or before April 14, the
Company had promulgated any written prohibition against
conversation on the plant floor between employees. Acting
Plant Manager Schimel’s testimony showed that during the
2 years preceding April 14, the Company was not concerned
about conversations between employees who were at their as-
signed work stations. The problem confronting Schimel was
‘‘getting the employees to stay in their own departments
. . . .’’ Schimel attacked this problem by introducing an un-
written rule that employees were to remain in their depart-
ments and discuss their work related problems with their su-
pervisors, rather than seeking answers elsewhere in the plant.
Schimel also testified that this policy would apply ‘‘if a
number of employees were getting together . . . .’’ How-
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever, he was not asked about conversations between two em-
ployees, who were at their assigned work stations.
I find from Supervisor Fairley’s testimony that he tolerated
Owen’s conversations with other employees near his work
station, prior to the warning of April 14. On those occasions,
Fairley observed Owens talking to other employees and un-
derstood that he was telling them what to do. According to
Fairley:
[W]hen something needed to be done that Jackie
[Owens] could do, he wouldn’t do it; he would go ask
someone else to do it, or else stand around and argue
with someone about why can’t you do it, when I asked
him to do something.
According to Fairley, such conversations were not violations
of the Company’s no-talking rule.
There was no showing that prior to April 14, the Company
had issued any disciplinary warning, verbal or written, to any
employee for conversing with another employee during
worktime. In an effort to support its position that Owens did
not suffer disparate treatment, the Company offered the
verbal warning it had issued to employee Stephen Strebeck
prior to the inception of the Union’s campaign. However, I
find that Strebeck’s verbal warning does not ) help the Com-
pany’s defense. For the warning shows that the Company
issued it to him not for a conversation during worktime, but
for: ‘‘Smart mouth failure to stay in work area. Roaming
around in plant’’ [sic].
The verbal warning to Owens on April 14, suggested that
Fairley’s attitude had changed toward him. Fairley’s testi-
mony showed that he had formerly permitted Owens to talk
freely to employees about work. Fairley’s warning enjoined
Owens from any talking during worktime, and directed
Owens to limit ‘‘all talking’’ to breaktime. I also noted from
Fairley’s testimony, that when he decided to write the warn-
ing, he neither knew nor cared what Owens and Barnes had
been talking about.
I find that the Company has not rebutted the General
Counsel’s strong showing of unlawful motive. Thus, the
Company has not explained Fairley’s changed attitude to-
ward Owens’ talking. The Company has not shown that
Fairley was enforcing a no-talking rule which it had promul-
gated or maintained prior to April 14. Finally, the Company
has not shown that it had issued a warning for talking, prior
to the one Owens received on April 14.
The record convinces me that Supervisor Fairley dis-
ciplined Owens on April 14 to discourage him from engag-
ing in union activity or otherwise supporting the Union, and
I so find. Accordingly, I also find that by this discrimination,
the Company violated Section 8(a)(3) and (1) of the Act.
2. Withholding bonuses
The Company granted bonuses to its office employees and
to its plant employees in 1987 and 1988. In each instance,
when the Company announced the bonus, it held out a future
bonus if the employees were productive. With the exception
of 1982, when no increase or bonus was granted, the Com-
pany gave its plant and office employees wage increases an-
nually from 1981 through 1986. However, the Company has
not granted both a wage increase and a bonus in the same
year, at least during the last 10 years.
The record did not show that the Company contemplated
a 1989 bonus for its employees. Instead, I find from Bob
Schimel’s testimony that early in 1989, before the Union
began its campaign, the Company was considering a wage
increase for its plant and office employees. I also find from
Schimel’s testimony that in February, before the union cam-
paign had begun, the Company had ‘‘pretty well completed’’
a wage survey. His testimony also showed that by the time
the union campaign began, the Company had basically com-
pleted its survey, but had not decided what increase to give.
The planned wage increase played a role in the Company’s
antiunion effort. As found, on April 5, Company employee
McRaney asked Vice President Keel why the Company had
granted a wage increase to its office clerical employees and
had not done so for the plant employees. In substance, Keel
answered that inasmuch as the office employees were not in-
volved in the Union’s campaign, the Company did not intend
to penalize them by withholding the wage increase from
them.
I have found, that on April 13 or 14, President Dier en-
couraged support for the Company’s effort, when he ex-
plained to his plant employees that after they had gotten rid
of the Union, the Company would grant a wage increase to
them. He also asserted, in substance, that the Company had
given a wage increase to the nonplant employees because
they were not involved with the Union. During the summer,
Dier told a meeting of the Company’s plant employees that
he could not give them a wage increase ‘‘until the union
matter [is] settled.’’
Acting Plant Manager Bob Schimel’s remarks to the Com-
pany’s employees during the preelection campaign suggested
that a wage increase was more likely if the Union lost the
election. As found above, Schimel stated, in substance, that
there would be no wage adjustment for the plant employees
as long as there was a union campaign. He also said that if
the Company won the scheduled representation election, it
would proceed with its wage survey. If the Union won, ac-
cording to Schimel, the Company would cease in its effort
to formulate a wage increase, and negotiate the matter with
the Union.
The Company granted a wage increase to its office em-
ployees in March or April. In September, the Company
granted a wage increase to its plant employees, retroactive to
April 17.
The complaint alleged that the Company violated Section
8(a)(3) and (1) of the Act by withholding a bonus from its
employees, on or about April 1. The General Counsel has not
amended the complaint to allege the withholding of a wage
increase, as the unlawful conduct. Nor did the General Coun-
sel seek to amend the complaint before me. However, in her
brief, counsel for the General Counsel abandoned the bonus
and substituted the withholding of a wage increase as the al-
leged discriminatory conduct.
The Company denied the complaint’s allegations, con-
tending that union activity had nothing to do with the with-
holding of a bonus, or any wage adjustment. According to
the Company, the record shows that it withheld a wage in-
crease from the plant employees because it feared that grant-
ing it during the Union’s preelection campaign might be un-
lawful, and also because management had not completed the
wage survey for those employees. I find no merit in the
Company’s explanation.
873FONTAINE BODY & HOIST CO.
23 The facts regarding the Company’s safety program and its administration
are not in dispute.
I find that the General Counsel has made a prima facie
showing that the Company withheld a wage increase, rather
than a bonus, from its plant employees in March or April,
to discourage them from supporting the Union. I note that
the complaint alleged the withholding of a bonus and did not
mention a wage increase. However, the facts regarding the
withholding of the wage increase were fully litigated before
me, and the issue of law they raised is closely related to the
complaint allegation. Accordingly, I have considered that
issue. Sunbeam Corp., 287 NLRB 996, 998 fn. 8 (1988).
Contrary to the Company’s assertions in its brief, the
record provided a strong showing that the Company used the
plant employees’ concern about a wage increase to discour-
age them from supporting the Union. During the preelection
period, Acting Plant Manager Schimel demonstrated the
Company’s unlawful motive. I found that Schimel offered
completion of the Company’s wage review as reward for the
employees’ rejection of the Union in the coming representa-
tion election. I have also found, that in early April, prior to
the scheduled representation election, Vice President Keel
suggested to employee McRaney and other body line em-
ployees that the Company was punishing them for their
union activity by withholding a wage increase from them. Fi-
nally, as found above, on April 13 or 14, Acting Company
President Kelly Dier held out a wage increase as an induce-
ment for the plant employees to get rid of the Union.
The Company’s proffered explanation of its refusal to
grant a wage increase to its plant employees was refuted by
Bob Schimel’s credited testimony before me. I have found
above from his testimony, that prior to the Union’s arrival
at its plant, the Company had decided to give its plant em-
ployees a wage increase. I also found from Schimel’s testi-
mony, that in February, before the union campaign began,
the Company’s wage survey was ‘‘pretty well completed’’
(Tr. 399). Finally, Schimel conceded in his testimony before
me, that the Company withheld the wage increase to the
plant employees because of the union activity among them.
In sum, the General Counsel’s showing of unlawful motive
remained unrebutted in the face of the Company’s unsubstan-
tiated explanation. Indeed, the Company’s own witness, Bob
Schimel, provided further support for the General Counsel’s
contention. I find therefore, that the Company withheld a
wage increase from its plant employees during the
preelection period, in March or April, because some of them
supported the Union. I also find that the Company withheld
the wage increase from its plant employees to discourage
them from engaging in union activity or otherwise supporting
the Union. Therefore, I further find that by withholding the
wage increase from its plant employees for those reasons, in
March or April, the Company violated Section 8(a)(3) and (l)
of the Act.
3. Plant safety rules23
Since 1985, Fontaine, Inc., has provided safety awareness
and safety incentive programs for the Company. In the sum-
mer of 1987, Fontaine, Inc., sought to reduce accidents at the
Company’s Collins plant, by emphasizing safety. In October
of the same year, the Company promulgated safety rules
which required its plant employees to wear safety shoes and
safety glasses and prohibited them from running in the plant
or elsewhere on the Company’s premises. The Company also
required that its plant employees wear earplugs at work.
These rules have remained in effect since their promulgation.
Included in the Company’s safety program are weekly
meetings between supervisors and their employees and quar-
terly plantwide meetings at which it awards safety incentive
bonuses. The Company held these meetings and awarded
merited safety bonuses at all times material to this case.
At the quarterly plantwide meetings, plant safety is dis-
cussed and evaluated, and the employees, who have earned
safety incentive bonuses of $20, receive them. The Company
held such a meeting in March. If a department of the plant
employees did not have an accident during the quarter, each
of the department’s employees receives a bonus at the meet-
ing. An accident occurred on the body line in January. Con-
sequently, the Company did not award a safety bonus to that
department at the March meeting.
Prior to the Union’s campaign, each plant supervisor held
a weekly safety meeting with subordinates. The supervisor
would invite suggestions to improve plant safety and would
ask if there were any unsafe conditions in the plant. Infre-
quently a supervisor would remind the assembled employees
about the Company’s safety rules. In 1988, the Company
issued seven disciplinary writeups to plant employees for in-
fractions of its safety rules, including four for failure to wear
safety glasses.
I find from Supervisor Charles Fairley’s testimony that in
January, his department, the body line, suffered an accident
involving eye flash burns. I also find from Fairley’s testi-
mony that the injured employee lost time from work. This
incident resulted in the loss of safety bonuses for Fairley and
his employees for the first quarter of the year. I find from
Acting Plant Manager Schimel’s testimony, and the fact that
he was in immediate charge of the Collins plant’s day-to-day
operations, that he was aware of this incident in January,
soon after it occurred.
After the Union’s campaign began at the Company’s plant,
Acting Plant Manager Schimel instructed his supervisors to
make the employees more safety conscious. Schimel’s testi-
mony did not provide any details as to the content of his in-
structions to the plant supervisors.
The testimony of current and former Company employees
reflected the impact of Schimel’s instructions. I find from the
testimony of employee Griffith and eight other employees or
former employees, that after the Union began organizing the
Collins plant, the Company’s supervisors regularly stressed
its safety rules at their weekly meetings. In particular, the su-
pervisors instructed the employees to wear safety shoes, safe-
ty glasses, and earplugs at work, and to refrain from running
in the plant. Also, the supervisors threatened the use of dis-
ciplinary warnings to enforce those rules.
The testimony of the same witnesses also showed that
after the Union began its campaign, the Company’s super-
visors enforced its safety rules against the plant employees
with increased vigor. Supervisors no longer permitted em-
ployees to work in poorly lighted areas with safety glasses
resting on their foreheads. Supervisor Fairley admittedly in-
structed his employees to wear their safety glasses at work
and issued a warning to employee Jackie Owens for failing
to do so. Other supervisors tightened up on their enforcement
of the safety glass requirement. Employees could no longer
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
move freely about the plant without safety glasses on. Super-
visors were now quick to remind such employees of the
Company’s rule and of a possible disciplinary writeup.
Employees who had been negligent about wearing safety
glasses prior to the Union campaign felt the impact of the
Company’s changed attitude. Prior to the Union’s campaign,
employee Irwin frequently worked at the Company’s plant
without safety glasses on. After the Union campaign began,
Supervisors Wise and Kirkley, respectively, observed him
working without safety glasses on five occasions and in-
structed him, each time, to wear them. In September, when
the last of these incidents occurred, Kirkely issued a written
verbal warning to Irwin.
Employee Jackie Owens experienced a marked increase in
disciplinary writeups after the union campaign began. Prior
to that event, he had received four or five verbal and written
warnings for safety glass and earplug violations. Indeed, the
Company introduced into evidence two disciplinary warnings
which it issued to Owens in 1987 and 1988, respectively. In
the earlier writeup, the Company scolded him for wearing his
safety glasses on top of his head. In the later warning, the
Company criticized his neglect to wear safety glasses and
earplugs, and warned that a further infraction would incur a
3-day layoff. From April to September 1989, the Company
issued 14 or 15 such warnings to him for failing to wear
safety glasses.
On April 18, Kirkley issued a verbal warning to Owens
for running in the plant. Owens believed that he was only
walking fast. Kirkley defined Owens’ speed as ‘‘faster than
a trot.’’ Owens signed the warning under protest. On the pre-
vious day, Kirkley had warned Owens about compliance with
the Company’s safety rules. Kirkley did so because Owens
was ‘‘bad about not wearing his safety glasses.’’ Kirkley was
careful to report the oral warning of the previous day in the
verbal warning of April 18.
Kirkley admitted that he had not issued a warning for run-
ning to any other employee. However, there was no showing
that he had observed any other employee running in the
Company’s plant. Indeed, Kirkley denied that he had per-
mitted other employees to run in the plant.
In 1987, Supervisor Kirkley issued a verbal warning to
employee King Simmons for failing to wear his safety glass-
es at work. During the summer of 1989, the Company ver-
bally warned Simmons for the same offense.
The General Counsel alleges that the Company retaliated
against its employees’ union activity by enforcing its safety
rules more strictly after the Union’ campaign had begun at
its Collins plant. The Company urges dismissal of this alle-
gation on the ground that the evidence did not show more
stringent enforcement of those rules after the Union began its
organizing effort at the Company’s plant. Contrary to the
Company’s position, I find that it stepped up enforcement of
its safety rules after the Union’s arrival in 1989. However,
I also find that the General Counsel has not made a prima
facie showing that union activity was a motivating factor in
the Company’s increased attention to plant safety.
The General Counsel has shown that the Company intensi-
fied its efforts to improve plant safety soon after the Union
began organizing the Collins plant employees. On Acting
Plant Manager Schimel’s instructions, supervisors used their
weekly meetings with employees to stress compliance with
the Company’s rules regarding safety glasses, safety shoes,
and earplugs. I also find that a tightening of enforcement ac-
companied the repeated recitation of safety rules. Supervisors
orally warned employees about wearing safety glasses and
stepped up the use of writeups to enforce that requirement.
I also find that the Company’s intensified enforcement of
its safety rules occurred in circumstances which suggested
that union activity was a factor in this change of attitude.
Thus, during February, March, April, and the summer, the
Company’s management was embarked upon an antiunion
campaign punctuated with a variety of unfair labor practices,
including threats of economic reprisal and the withholding of
a wage increase. The concurrence of the increased attention
to safety rules and their enforcement, with the Company’s
manifestations of hostility to the Union provided consider-
able support for the General Counsel’s contention.
I have no doubt of the Company’s animosity toward the
Union and its supporters at the Collins plant. However, I am
not convinced that union animus was a motivating factor in
the Company’s effort to improve plant safety after the Union
had begun its organizing campaign. Vice President Keel’s
testimony showed that the Company and its parent have ex-
hibited a genuine interest in improving safety at the Collins
plant since 1987. Before the advent of the Union, the Com-
pany issued written warnings to employees for violating
plant safety rules, held safety meetings and gave incentive
bonuses to encourage employees to comply with those rules.
After the Union appeared at the Collins plant, the Company
maintained these practices.
However, Acting Plant Manager Schimel became con-
cerned when the Company experienced an accident on its
body line in January, and a second accident on the same line
during the second calendar quarter of 1989. These accidents
resulted in lost working time and the withholding of safety
bonuses from the body line department for both quarters
There was no allegation that Schimel’s withholding of these
bonuses was violative of the Act. Thus, I find that here,
again, the Company was pursuing established policy.
The occurrence of some ‘‘little accidents’’ in 1988 and in
early 1989, and the ‘‘lost time’’ accidents in the first and
second quarters of 1989 troubled Schimel. He wanted his
employees to pay more attention to safety. After the Union
campaign had begun, Schimel instructed his supervisors to
‘‘get the employees to understand that safety was a very im-
portant part of our business.’’ I find it likely that Schimel’s
instructions resulted in the increased attention to the Compa-
ny’s safety rules at the weekly meetings and on the produc-
tion floor, as testified to by the General Counsel’s witnesses.
Schimel issued no new safety rules. He added the stock-
room to the plant areas where employees were required to
wear safety glasses. He did not instruct his supervisors to
issue more disciplinary warnings for safety violations. In-
stead, he increased his supervisors’ awareness of plant safety.
I find it likely that Schimel’s policy brought with it enhanced
perception of the employees’ chronic neglect to wear safety
glasses. Thus, supervisors were likely to remind employees
to wear their safety glasses and to issue disciplinary warnings
to those who failed to do so. Similarly, Supervisor Kirkley
was likely to notice Owens’ violation of the Company prohi-
bition of running and discipline him.
In sum, after considering all the relevant evidence, I find
that the General Counsel has not shown by a preponderance
of the record evidence, that the Company’s hostility to its
875FONTAINE BODY & HOIST CO.
24 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.
employees’ union activity was a motivating factor in its ef-
fort to improve plant safety. Instead, I find that the Company
has shown that Schimel’s concern about plant safety, and not
union activity, provoked him to make his supervisors and
employees more aware of the Company’s rules regarding
plant safety. Accordingly, I shall recommend dismissal of the
allegation that the Company enforced its safety rules more
strictly in violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By interrogating its employees about their union activity
and the union activity of their fellow employees; by solic-
iting its employees to withdraw their signed authorization of
the Union to act as their collective-bargaining representative;
by threatening its employees with plant closure, discharge,
layoff, loss of overtime, and other benefits because they sup-
ported the Union; by advising its employees that the Com-
pany would never permit its employees to have a union and
would never sign a collective-bargaining agreement; by cre-
ating the impression among its employees that their union
activity was under surveillance; by threatening to blackball
employees if they engaged in union activity; by promising its
employees increased wages and promotions if they withheld
support from the Union; by telling its employees that bo-
nuses had been withheld from them because they engaged in
union activity; by telling employees that other company em-
ployees had received bonuses because they had not engaged
in union activity; and by promulgating a rule prohibiting em-
ployees from talking about the Union during worktime, the
Company has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By withholding a wage increase from its plant employ-
ees on or about April 1, 1989, and by issuing a warning to
employee Jackie Owens on April 14, 1989, the Company
violated Section 8(a)(3) and (1) of the Act.
3. The Company did not violate Section 8(a)(1) of the Act
by questioning employee King Simmons in the summer of
1989, regarding his attitude toward the Union .
4. The Company did not violate Section 8(a)(1) of the Act
on February 17, 1989, by soliciting employee Bobby Har-
vey’s signature on a document canceling his authorization of
the Union to act as his bargaining representative.
5. The Company did not violate Section 8(a)(3) and (1) of
the Act by more stringently enforcing its plant safety rules.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
As the Company discriminatorily withheld a wage increase
from its plant employees on or about April 1, 1989, I shall
recommend that it be required to make those employees
whole for any loss of earnings and other benefits they may
have suffered as a result of that discrimination against them,
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
I shall also recommend that the Company be required to
remove from its files any reference to the warning it issued
to employe Jackie Owens on April 14, 1989, which I have
found violative of the Act, and notify him, in writing, that
it has done so and that it will not use this warning against
him in any way.
Having found that the Company unlawfully promulgated a
rule forbidding employees from talking about the Union dur-
ing working time, I shall recommend that the Company be
required to rescind that rule and remove from its files any
warnings issued to employees pursuant to that rule, and no-
tify each of them, in writing, that it has done so and that it
will not use those warnings against them in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended24
ORDER
The Respondent, Fontaine Body and Hoist Company, Col-
lins, Mississippi, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discouraging membership in or support for, or activi-
ties on behalf of Industrial Union Department, AFL–CIO, on
behalf of United Steelworkers of America, AFL–CIO, or any
other labor organization, by discriminating in any manner
against any of its employees in regard to their hire and ten-
ure of employment or any term or condition of employment
because of their union membership, sympathies or activities.
(b) Coercively interrogating employees about their union
membership, activities or sympathies, or about the union
membership, activities, or sympathies of other employees.
(c) Soliciting employees to withdraw their signed author-
ization of Industrial Union Department, AFL–CIO, on behalf
of United Steelworkers of America, AFL–CIO, to act as their
collective-bargaining representative.
(d) Threatening discharge, plant closure, layoffs, loss of
overtime and other benefits, because its employees support or
select Industrial Union Department, AFL–CIO, on behalf of
United Steelworkers of America, AFL–CIO, or any other
labor organization, as their collective-bargaining representa-
tive.
(e) Telling employees that the Company would never per-
mit its employees to have a union, or that it would never
sign a collective- bargaining agreement with Industrial Union
Department, AFL–CIO, on behalf of United Steelworkers of
America, AFL–CIO, or any other labor organization.
(f) Creating the impression among its employees that their
union activities are under the Company’s surveillance.
(g) Threatening to blackball employees if they continue to
engage in activities in support of Industrial Union Depart-
ment, AFL–CIO, on behalf of United Steelworkers of Amer-
ica, AFL–CIO, or any other labor organization.
(h) Promising its employees increased wages and pro-
motions if they withhold their support from Industrial Union
Department, AFL–CIO, on behalf of United Steelworkers of
America, AFL–CIO, or any other labor organization.
(i) Informing employees that the Company had withheld a
bonus from them because they engaged in activities on be-
half of, or otherwise supported, Industrial Union Department,
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 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.’’
AFL–CIO, on behalf of United Steelworkers of America,
AFL–CIO, or any other labor organization.
(j) Informing employees that other employees of the Com-
pany had received bonuses because they had not engaged in
activities on behalf of Industrial Union Department, AFL–
CIO, on behalf of United Steelworkers of America, AFL–
CIO, or any other labor organization.
(k) Promulgating a rule forbidding employees from talking
about Industrial Union Department, AFL–CIO, on behalf of
United Steelworkers of America, AFL–CIO, or any other
labor organization, during worktime.
(l) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole its employees for any loss of pay or other
benefits they may have suffered as a result of the discrimina-
tion against them, in the manner set forth in the remedy sec-
tion of this Decision, plus interest.
(b) Remove from its files all references to the written
warning issued to employee Jackie Owens on April 14, 1989,
and notify him in writing that this has been done, and that
this warning will not be used against him in any way.
(c) Rescind its rule forbidding employees from talking
about Industrial Union Department, AFL–CIO, on behalf of
United Steelworkers of America, AFL–CIO, or about any
other labor organization, during worktime.
(d) Remove from its files, all warnings issued to employ-
ees for violating its rule forbidding employees from talking
about Industrial Union Department, AFL–CIO, on behalf of
United Steelworkers of America, AFL–CIO, and notify each
of those employees, in writing, that this has been done and
that the Respondent will not use those warnings against them
in any way.
(e) 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.
(f) Post at its facility in Collins, Mississippi, copies of the
attached notice marked ‘‘Appendix.’’25 Copies of the notice,
on forms provided by the Regional Director for Region 15,
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.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL not discourage membership in or support for, or
activities on behalf of Industrial Union Department, AFL–
CIO, on behalf of United Steelworkers of America, AFL–
CIO, or any other labor organization, by discriminating in
any manner against any of our employees in regard to their
hire and tenure of employment or any term or condition of
employment because of their union membership, sympathies,
or activities.
WE WILL not coercively interrogate employees about their
union membership, activities or sympathies, or about the
union membership, activities, or sympathies of other employ-
ees.
WE WILL not solicit employees to withdraw their signed
authorization of Industrial Union Department, AFL–CIO, on
behalf of United Steelworkers of America, AFL–CIO, to act
as their collective-bargaining representative.
WE WILL not threaten discharge, plant closure, layoffs,
loss of overtime, and other benefits, because our employees
support or select Industrial Union Department, AFL–CIO, on
behalf of United Steelworkers of America, AFL–CIO, or any
other labor organization, as their collective-bargaining rep-
resentative.
WE WILL not tell employees that the Company would
never permit its employees to have a union, or that it would
never sign a collective-bargaining agreement with Industrial
Union Department, AFL–CIO, on behalf of United Steel-
workers of America, or any other labor organization.
WE WILL not create the impression among our employees
that their union activities are under the Company’s surveil-
lance.
WE WILL not threaten to blackball employees if they con-
tinue to engage in activities in support of Industrial Union
Department, AFL–CIO, on behalf of United Steelworkers of
America, AFL–CIO, or any other labor organization.
WE WILL not promise our employees increased wages and
promotions if they withhold their support from Industrial
Union Department, AFL–CIO, on behalf of United Steel-
workers of America, AFL–CIO, or any other labor organiza-
tion.
WE WILL not inform our employees that the Company has
withheld a bonus from them because they engaged in activi-
ties on behalf of Industrial Union Department, AFL–CIO, on
877FONTAINE BODY & HOIST CO.
behalf of United Steelworkers of America, AFL–CIO, or any
other labor organization.
WE WILL not inform our employees that other employees
of the Company had received bonuses because they had not
engaged in activities on behalf of Industrial Union Depart-
ment, AFL–CIO, on behalf of United Steelworkers of Amer-
ica, AFL–CIO, or any other labor organization.
WE WILL not promulgate a rule forbidding employees from
talking about Industrial Union Department, AFL–CIO, on be-
half of United Steelworkers of America, AFL–CIO, or any
other labor organization, during worktime.
WE WILL not in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed by Section 7 of the Act.
WE WILL make whole our employees for any loss of pay
or other benefits they may have suffered as a result of the
discrimination against them, in the manner set forth in the
remedy section of this Decision, plus interest.
WE WILL remove from our files any reference to the writ-
ten warning issued to employee Jackie Owens on April 14,
1989, and notify him in writing that this has been done, and
that this warning will not be used against him in any way.
WE WILL rescind our rule forbidding employees from talk-
ing about Industrial Department, AFL–CIO, on behalf of
United Steelworkers of America, AFL–CIO, or about any
other labor organization during worktime.
WE WILL remove from our files all warnings issued to our
employees pursuant to our rule forbidding employees from
talking about Industrial Union Department, AFL–CIO, on be-
half of United Steelworkers of America, AFL–CIO, and no-
tify each of them in writing that we have done so, and that
WE WILL not use those warnings against them in any way.
FONTAINE BODY AND HOIST COMPANY