Pilliod Of Mississippi, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 799 (N.L.R.B. 1985)

PILLIOD OF MISSISSIPPI, INC.
Pilliod of Mississippi,, Inc. and United Furniture
Workers of America, AFL-CIO and. Le', West-
moreland . Cases 15-CA-9159, ,15-CA-9212-2;
-and 15-CA-9242 - -
28 June 1985' " - " -
DECISION AND ORDER - - ,
BY CHAIRMAN -DOTSON AND MEMBERS.
HUNTER AND DENNIS
On 29 August 1984 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Respondent filed exceptions and a ,supporting
brief, and the General Counsel and the Charging
Party Union filed answering briefs.
.
.
The Board has considered the decision and , the
record in light of the exceptions and briefs and has
decided to affirm, as modified, the judge's rulings,
findings," and conclusions2 and to adopt the;. rec-
ommended Order as modified.3 - ' '
1. The judge found that the Respondent's .overall
election campaign violated Section 8(a)(1) of the
Act. In so doing, he relied not only on the speech-
Following issuance of the judge's decision , the Charging Party Union
filed with the Board a request to withdraw its objections in Case 15-RC-
7021 On 25 March 1985 the Board granted the motion and certified the
results of the election Accordingly, we do not address the judge's find-
ings 'with regard to the Respondent 's alleged objectionable conduct. In
adopting the judge 's finding that the Respondent did not 'effectively repu-
diate its unlawful conduct by distributing "job guarantees" to employees
or by the 3 November. 1983 statements of;Plant Manager Clark, we rely
on the fact that the Respondent 's communications did not'specifically and
unambiguously disavow any of the conduct we find "to have violated the
Act. Thus, we agree that the communications did not effectively repudi-
ate the Respondent 's unfair labor practices
The Respondent , has'eacepted to some of the'judge 's credibtht -find-
ings The Board's established policy is , pot, to, overrule an, administrative
law judge 's credibility; resolutions , unless . the clear - preponderance of all
the relevant evidence convinces us that they are ' incorrect Standar'd'Dry
Wall Products, 91 NLRB -544 '(1950),' ehfd ' 188 F 2d 362 (3d Cir '1951).
We have carefully examined the record and find no- basis - for_reversing
the findings t;- p , ;_,
In adopting the judge 's finding that the Respondent violated Sec4
8(a)(1) of the Act by enforcing its rio-solicitation/distribution rule against
prounion employees while allowing antiunion solicitation , we:place + no.re-
liance on the judge's finding that supervisors were permitted to-campaign
against the Union during worktime while unit employees were prohibited
from soliciting during such ' time-. NLRB 'v 'Steelworkers (Nutone, 'Inc.);
357 U S. 357 (1958) ,
2 We do .not conclude , as did the judge , that Supervisor Hopkins',ques-
tionmg of employee Donaldson in October 1983 as to Donaldson 's feel-
ings toward the Union violated Sec 8(a)(1) of tlie'Act - In this regard, we
note that Donaldson ` openly demonstrated his support for the Union by,
inter . alia, wearing union buttons, shirts , and. hats ; While at - work Under
the circumstances , we conclude that Hopkins' inquiry, would not,reason-
ably coerce Donaldson in the ' exercise of nghts under the Act Rossmore
11 ,House, 269 NLRB 1176 (1984) P;..
8 Having found that the Respondent violated Sec 8(a)(3) and (1) of the
Act by.discnminatonly refusing to-transfer Le' Westmoreland out of the
finishing department from ' about 23 October 1983 to about 4 January
1984, the judge ordered , inter alia,' that the' Respondent- compensate
Westmoreland for all medical expenses attributable to its unlawful' con-
duct . Rather than provide 'a specific order for reimbursement of medical
expenses , we shall provide ,a general make-whole remedy as customarily
applied in cases of this type We shall leave to the compliance stage of
this proceeding whether Westmoreland incurred medical expenses attrib-
utable to the Respondent 's'conduct
799
es given by 'Plant Manager Clark'and Chief Indus-
trial: Engineer Bailey,' =but also 'on 'the Respondent's
posters and 'campaign literature, which the judge
found 'unlawfully emphasized 'the 'inevitability" of
strikes and, threatened plant: closure ' and 'the' loss of
strikers' jobs. ,Inn addition, '-the` judge; relied on the
fact. that the. Respondent's ;campaign statements
were made in the, context of other - conduct viola-
tive. of Section 8(a)(1). of the,^Acti'-including state=
ments by supervisors' which the judge' found also
emphasized ` the inevitability of strikes;-and threat=
ened employees with plant closure and loss `of_jobs.
While'we "adopt the judge's finding that Plant. Man-
ager Clark's statements violated . the Act and,
except as modified herein, his findings- regarding
the conduct of-.the Respondent's supervisors,-'we do
not adopt his, fmdings regarding - the.-Respondent's
overall election campaign.
In finding the Respondent's campaign unlawful,
the judge discussed several "of the Respondent's let-
ters -and leaflets - to : employees, including, those stat-
ing, inter alias that = a union -=could ' compound the
Company's probl'ems;-that the Union-had a-propen-
sity for strikes and violence;" and that'other 'union-
ized plants -had''expenenced -loss,'of jobs-and em-
ployee benefits: ' We -note; however', that none of
the campaign ' literature was _ specifically alleged, to
be, unlawful and,'we -find that such literature , is not
coercive, nor did. it exceed the- bounds of permissi-
ble campaign propaganda. :Ac^orclingly, . we do not
find that the Respondent_,violated Section- 8(a)(1) ;of
the; Act- bycits,overall. election campaign.
- - Nor do 'we agree - with -the: judge's finding that
the" -Responderit's `display of- its i'so-called red-line
poster threatened employees with loss of` jobs if the
Union 'wonA"he election 'and - thus `violated Section
§(a)(1) '.6f the Act:-The poster ,' related to,layoffs'at
3.
another furniture company and+.purportedto illus
trate,,those; .of the ., Respondent's employees Who
would; have; been ,laid, off if. the Respondent' s:"em-
ployees .worked for' the, other :company: We -do not
find 'that - such - a-, hypothetical comparison -would
reasonably' fend- to "coerce ernployeest i^in 'the 'exer=
cise of rights under the Act and 'there`'i's' no' evi-
dence that the poster itself otherwise - suggested
that' the ,,Respondent' would lay off employees if the
Union won: the , election., Accordingly,Tiwe .dismiss
the-:allegation'that the display:of the=red-line poster
viol'ated' the; Act 5
tiC• - F,t
2. The judge=also' found that the Respondent -,vioz
lated Section 8(a)(1) of the Act by the conduct of
Chief Industrial Engineer Bailey in telling employ-
ees during a campaign speech that the Respondent
did not have to give - anything in negotiations,
could begin bargaining at' "ground zero," and that
275 NLRB No. 117
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the -employees might lose their benefits. We -dis-
agree. - -
Bailey's statements, unlike those of Plant Manag-
er Clark which we found above to be unlawful, do
not contain a threat that the Respondent on its own
would reduce benefits in retaliation against the em-
ployees if they • selected the Union as their bargain-
ing.representative. Rather, Bailey's remarks reason-
ably communicated the views that a union cannot
compel concessions in negotiations and that a union
cannot guarantee the retention of all present bene-
fits because such benefits are subject to negotiation.
Thus, the remarks accurately reflect the bargaining
process and we find that the Respondent did not
violate Section 8(a)(1) by Bailey's statements. See
International Filling Co., 271 NLRB 1591 (1984).4
3. The judge found that the Respondent-violated
Section 8(a)(1) of the Act through the conduct of
Supervisor Hopkins- in telling employees'that the
Union was responsible for causing a safety inspec-
tion which resulted in a requirement that the em-
ployees purchase safety shoes. In so doing, the
judge acknowledged that "such a statement, stand-
ing alone , might be considered inoffensive." Never-
theless, he found, in the context of the Respond-
ent's widespread campaign to denigrate the Union,
that the statement tended to disparage the Union
and was thus unlawful. We disagree:
It is clear - from the record that union organizer
and employee Aletha Johnson initiated proceedings
before the United States Occupational Safety and
Health Administration (OSHA) and, that following
an OSHA inspection employees of the Respondent
were required to purchase safety-shoes. The state-
ments of Hopkins neither expressly nor. impliedly
threatened' employees for union activity and in the
circumstances were neither coercive nor disparag-
ing of the Union itself. Thus, we find that Hopkins'
statements , even when considered in, light of the
Respondent's other conduct, do not rise to the
level of an unfair labor practice. We therefore dis-
miss that allegation of the complaint.
ORDER
The. National Labor Relations - Board adopts the
recommended Order of the administrative law
judge as modified and set out in -full below and
orders -that the Respondent; Pilliod of Mississippi,
Inc., Meridian, Mississippi, its -officers, agents, suc-
cessors, and assigns, shall - -
1. Cease and desist from - -
4 In reaching a contrary conclusion , the judge relied on'De Queen Gen-
era! Hospital, 264 NLRB 480 ( 1982),"and Tra -Mar Communications, 265
NLRB 664 ( 1982). Without passing on the ments of these cases, we note
that, unlike the instant case , each involved an alleged threat by the em-
ployer to retaliate against the employees during the bargaining process
We find no such threat here.
(a) Telling employees that it would close the
plant down, -tape it up, or move it before the Com-
pany would think of having a union in the plant.
(b) Telling employees that they would get repri-
mands, indefinite layoffs, or be discharged if they
distributed union material in the plant or placed
union stickers on anything.
(c) Telling employees that there would be a
strike if the Union won an election , and that em-
ployees' families would go hungry.
- (d) Telling employees that they would be fired
for signing union authorization cards.
(e) Telling employees that they would be fired
for giving information to the National. Labor Rela-
tions Board. -
(f) Telling employees that they will not keep
their jobs unless they refrain' from associating with
union officials.
(g) Asking employees how many, employees are
going to vote for the Union.
(h) Telling union supporters that they are' hang-
ing around with the wrong-crowd. -
(i) Telling employees that the Union is going to
get them fired. I •
(j) Telling employees that they will get raises if
the Union does not come into the plant.
(k) Telling union adherents that they had- better
watch themselves.
(1) Telling employees- that they had better refrain
from wearing' union clothing or insignia. -
(m) Discriminatorily promulgating or maintain-
ing a no-solicitation%distribution rule.
(n) Discouraging membership in' the United
States Furniture Workers of America, AFL-CIO,
or, any other labor organization, by discharging em-
ployees, issuing warnings to them, or refraining
from transferring them, because of their union ac-
tivities; or_ by discriminating against them in any
other manner' with respect to, their hire, tenure of
employment; or terms and conditions of employ-
ment.
(o) In. any other manner ' interfering with, re-
straining,. or coercing employees in the exercise of
the rights,guaranteed them by Section 7 of the Act.
2. Take the following- affiimative action designed
to effectuate the purposes of the Act.
(a) Offer, Aletha -Johnson_ and, James' White im-
mediate, and,full .-reinstatement;to; their former jobs
or, if those, jobs no, .longer. . exist,. to I substantially
equivalent positions , without prejudice to, their, se-
niority or any other rights or privileges previously
enjoyed, and make them whole for any loss of
earnings • and other benefits suffered as a result of
the Respondent's unlawful conduct in the manner
described in the remedy section of the decision.
Remove from its files any reference to the unlawful
PILLIOD OF MISSISSIPPI , INC. 801,
discharges, and notify the employees in writing
that this has been done and that the discharges will
not be used against them in any way.
(b) Remove from its files any reference to the
warning unlawfully issued to Donald E. Tanner for
alleged violation of a no-solicitation/distribution
rule, and notify him in writing' that this has been
done and that the warning will. not be used against
him in any way.
(c) Refrain from transferring Le' Westmoreland
back into the finishing or deburg department, and
make her whole for any losses suffered as a result
of the discrimination against her.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of reimbursement due under the terms. of
this Order.
(e) Post at its facility at Meridian, Mississippi,
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director- for Region 15, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent -immediately
upon receipt 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, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.,
MEMBER DENNIS,' concurring ih part and. dissent-
ing in part. .
'I concur with my ' colleagues ' adoption of the
judge's finding that the Respondent committed nu-
merous unfair' labor practices. 'Contrary to' my col-
leagues , I would find that the "red-line" poster re-
inforced the Respondent's threats of plant closure,
other retaliation, and the inevitability of strikes,
and thus the "red-liiie" "poster itself, unlawfully
threatened employees -with' the ' loss of job -security.
Further; although I do'not -agree with the ' breadth
of the judge's finding "in 'his "Fa6iual' Summary` and
Legal Analysis" that the Respondent's campaign as
a ' whole was unlawful;- I' would 'find 'the' Respond-
ent's numerous threats conveyed to employees the
futility of supporting the 'Union. Finally, I believe
If this Order is enforced by a Judgment 'of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board
that, under Rossmore House, 269 NLRB 1176
(1984), the totality of circumstances dictates a find-
ing that Supervisor Hopkins' interrogation of em-
ployee Donaldson violated Section 8(a)(1), as the
questioning occurred against a background of nu-
merous unfair labor practices (including threats and
interrogations) affecting a large number of employ-
ees. t -
i I agree that the Act was not violated by either Hopkins' statement
that the Union was responsible for the requirement that employees pur-
chase safety shoes or by Engineer Bailey's statement that the Respondent
could begin bargaining at ground zero
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 violated the National Labor Relations Act
and has ordered us to post and abide by this -notice.
WE WILL NOT tell employees that we will close
the plant down, tape it up, or move it, before al-
lowing a union to come into the plant.
WE WILL NOT tell employees that they will get
reprimands, indefinite layoffs, or be discharged if
they distribute union material in the plant or place
union stickers on anything.
WE WILL NOT tell employees that there will be a
strike in the event the Union comes into the plant,
and that employees' families will go hungry.
WE WILL NOT tell employees that they will be
fired for signing union authorization cards.
.
WE WILL NOT tell employees that they will be
fired for giving information to the National Labor
Relations Board.
WE WILL NOT tell employees that they will not
keep their jobs unless they refrain from associating
with union officials.
WE WILL NOT ask employees how many employ-
ees are going to vote for the Union.
WE 'WILL NOT tell union' supporters that they are
hanging around with the wrong crowd. '
WE WILL. NOT tell employees that the Union is
going to get them fired.
WE WILL NOT tell employees that they will get
raises if the Union does not come into the plant.
WE WILL NOT tell union adherents that they had
better watch themselves.
WE WILL NOT tell employees that they had
better refrain from wearing union clothing or insig-
nia.
802 DECISIONS OF: NATIONAL LABOR RELATIONS BOARD
-'WE WILL 'NOT--•discriininatorily promulgate or
maintainea no-solicitation/distribution -rule: -- t
WE : WILL'-NOT discourage membership' in ,any'
union by' discharging; issuing warnings to, or refus:
ing to -transfer employees, because of their, union'
activities.
Wi •WILV NOT in `any '=other ,manner 'interfere
with,' restrain or , coerce, employees in "the exercise'
of the rights. guaranteed" them by Section 7' of the
Act.
WE' WILL .offer-Aletha"Johnson and James White
immediate - and, full reinstatement to their former`,
jobs or, if those jobs no longer : exist„to. substantial-
ly equivalents- positions, without prejudice to their
seniority or any other rights or privileges previous-
ly- enjoyed and WE WILL make them whole for any
loss : of-earnings^'and - other benefits resulting from
their discharge, less. any-net ;interim earnings, plus
interest,' and WE WILL expunge all, references to-
those`'discharges -from our records,"and notify them'
in writing that we have 'done • so. •,"-- '
-`WE WILL 'expunge'--from""our personnel trecords
all' references to"the 'unlawful warning which we'
issued to Donald E. Tanner;' -' and - notify him = ; in
writing~that`we have done so.
WEB WILL refrain' from.' transferring - Le' • West-
moreland back into the , finishing or" deburg depart=
ment„and- WE WILL .make, her whole for any losses
she,, incurred - because.: of, our unlawful refusal to
transfer her out of that department,: plus interest. -
,. PILLIOD'OF^MISSISSIPP1 , INC.'
DECISION--t
OF THE CASE
;,,
HOWARD I_. GROSSMAN , -Administrative = Law;•Judge.
The original charge ,in Case; l5-.CA-9159'was.-filed_by
United Furniture . Workers .,of -America; AFLCIO (the
Union , or ° Petitioner),. on- October 31, 1983 , ij and an
amended charge . on November 1'8. A- complaint. issued on
December 31,' which , - as amende
3
d , " alleges that` illio'd' of
Mississippi , Inc. (Respondent or the Employer)"threat-
ened , employees with discharge or loss of jobs ,if they (-1)
continued z to, support '-the, Union, ,(2)_ posted ' union litera-
ture iii Respondent 's, facility;,, (3)^-signed ,union cards, or
(4) .,talked, to a an. agent! of the'iNational Labor r' Relations
Board (the Board).. In addition, the corriplaint alleges that-
Respondent posted a notice threatening loss of ,job's; and
otherwise threatened employees with foss of employment
and Ybenef ts; with reductions of• wages ; and ,'with plant
closure " if'the' Union 'won'a ' forthcoming 'election: Fur-
ther;j=the ` comp l'aint 'asserts' "drat Respond'eiiF (1)' 'threat-
ened employees - with -'discipline-if they" voted for the
Union;" (2) engaged 'iin unlawful inter"rogation of eniploy-
' -All dates are in 1983 unless otherwise indicated Although Respond-
ent initially denied - service of the original charge, this was admitted at
hearing „t
ees with respect to union activities;-(3) promised a wage
increase if the Union lost the election; and created an im-
pression of surveillance of union activities. The foregoing
acts and conduct are asserted to be violations of Section
8(a)(1) of the Act. - - -
'The complaint, as amended, further alleges that Re-
spondent discriminatorily and disparately promulgated
and-maintained a no-solicitation and distribution rule in
order to discourage- its employees from supporting the
Union in violation of Section 8(a)(1); and - enforced such
rule'by discharging employee Aletha Johnson and by is-
suing a written warning to employee Donald E. Tanner
because of theiri union activities, all in violation of Sec-
tion 8(a)(3) and (1).
'Finally, the complaint alleges that Respondent made
campaign speeches and distributed literature to its em-
ployees which,- considered -in totality with the offenses
alleged above, -conveyed to its employees an atmosphere
of futility with respect to continued support of the
Union, in-violation of Section 8(a)(1).
'Petitioner filed a petition iri Case 1'5-RC-7021 on' Sep-
tember' . 12. Pursuant to a Stipulation' for Certification
Upon Consent Election, an-election-by'secret ballot was
conducted on November 4. Of'approximately 388 eligible
voters; 350 ballots were cast, 147 'for 'the Petitioner, and
180 votes' against the. Petitioner. There were 22 chal-
lenged ballots, and 1 was "void. `The' challenged ballots
were insufficient in -number to affect the 'results • of the
election. Petitioner timely filed 30 objections to the con-
duct ,of the election and, thereafter, withdrew 17 of them
with the approval of, the Regional Director for' Region
15. On December 30,- the Regional Director issued his
Report on` Objections arfd Order Directing Hearing, in
which he concluded that seven 'of the remaining objec-
tions were. the subject of, unfair . labor proceedings' in
Case' 15-C-9159,2 and that six of them, if proven,
would constitute sufficient basis-for setting aside the elec-
tion.3 Accordingly, the Regional Director ordered that'a
hearing Cori the objections be consolidated with the pro-
ceedings Case 1 5-CA-9159, ! absent settlement - of the
latter. • The.JEmployer thereafter fled exceptions to the
Regional Director's' report, and the Board, on February
3,,,1984, overiuled,said exceptions (G.C. EA. 1(aa)).
- . The -charge in` Case. 15-CA-9212-2 was filed by the
Onion 63,1 January `6, -1984, and complaint.issued on Janu-
Objections ( 1). discharge and intimidation of union . supporters; (6)
campaign of- fear . about union strikes, -violence, and plant closings, (13)
permitting "loyal" employees to,campaign during working hours while
threatening discharge of union supporters for'same; •(14) posting ` of poster
implying that half of the employees would be fired if the Union won, (16)
harassing and = intimidatmg(union"supporters with suspensions - and warn-
ing, (17) allowing "loyal" employees to distribute company materials on
company . propeity during working 'hours, and threatenug discharge of
union supporters1dr. same, and-(29) threatening employees with reduction
in wages and loss of benefits if the Union won (G.C Exh 1(e))
3 Objections :-(8) ,threat to sue union - committee for,31 million (9) suing
each union representative for $1 million on the day before the election;
(11),postingtarmed guards prior to election to createimpression employ-
ees needed piotechon from violence, ( 12) promising favors to `employees
joining the "Loyal Empioyees'Committee", (18) company letter on day
of election threatening to close plant and creating new issue about Com-
pany's'financial status-which Union had no opportunity to answer, and
(22) conversations with employees - waiting to' vote by. supervisors sta-
tioned .outside•polhng area ,(G.C Exh -1(e)).. - ,
PILLIOD OF MISSISSIPPI , INC. 803
ary 30, 1984. As amended, it contained additional allega-
tions of violations of Section 8(a)(1) similar to those in
Case 15-CA-9159 and, further, alleges that Respondent
(1) told an employee that the Union was responsible for
causing OSHA to require that Respondent furnish work
shoes to employees at the latter's expense; (2) told em-
ployees that Respondent did not have to bargain in good
faith if the Union won, and could reduce wages to mini-
mum levels; (3), accused an employee of being "damn
dumb" for supporting the Union, thereby implying that
reprisals would be taken; and (4) threatened employees
with discharge or other reprisals for distributing union
literature; posting union or "Vote Yes" stickers, or other-
wise supporting the Union, and (5) threatened employees
with reduction of wages or refusal to grant a wage in-
crease because of their support of the Union. This com-
plaint also alleges that Respondent discharged employee
James White because of his union activities, in violation
of Section 8(a)(3) and (1).
The charge in Case 15-CA-9242 was filed by Le'
Westmoreland (Westmoreland) on January 20, 1984, and
complaint issued on February 21, 1984. It alleges that
Respondent threatened an employee that his family
would go hungry if the Union came into the plant. Fur-
ther, the complaint alleges, Westmoreland requested a
transfer from Respondent's finishing department for med-
ical reasons, and Respondent refused because of West-
moreland's union activities, in violation of Section 8(a)(3)
and (1) of the Act.
A hearing on these matters was conducted before me
in Meridian, Mississippi, on March 12 through March 16,
and March 26 and 27, 1984. On the entire record, includ-
ing briefs filed by the General Counsel, Respondent, and
the Union, I make the following
FINDINGS OF FACT
1. JURISDICTION
The pleadings, 'as amended, establish'that Respondent
is a Mississippi corporation with an office and place of
business located at Meridian, Mississippi, where it is en-
gaged in the manufacture of wood products. During the
12-month period preceding issuance of the last ' com-
plaint, a representative period, Respondent purchased
and received goods and materials valued in excess of
$50,000 directly from points located outside the State of
Mississippi, and sold and shipped goods similarly valued
directly to points located outside the State of Mississippi.
Respondent is an employer engaged in, commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION, INVOLVED
The pleadings establish, and I find, that the Union is a
labor organization within the meaning of the Act. -
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Parties Engage in a Leaflet, Letter, and Poster
Campaign • :
The first union meeting took place in late April or
early. May, and an "Inplant Organizing Committee" was
formed. Thereafter, the Union mailed out a poster stating
that it was an employee's right to join a union (Jt. Exh.
37). The Union also mailed "Vote Yes" stickers to em-
ployees, and 'a letter thanking them for signing authoriza-
tion cards. In addition, the Union distributed leaflets at.
plant entrances stressing- the benefits of union organiza-
tion. One of the leaflets asserts that the "fringe benefits"
at the Company's plant include skin rashes, breathing
problems, dizziness, and nausea as a result of working
conditions. The leaflet demands a medical committee, in-
formation on chemicals with which the employees were
working, and adequate ventilation (Jt. Exh. 45). Another
leaflet demands adequate notice of overtime (Jt. Exh.
44). In August, the Union distributed leaflets stressing
wages and job security, and noted 'the superior benefits
granted by Respondent at another of its plants which
was unionized, (Jt. Exhs. 39, 40, 42, and 43).
As noted above, the petition was filed on September
12. The Union distributed several- leaflets in September
on the same themes of improved employee benefits and
working conditions (Jt. Exhs. 30-35): Another leaflet in
September is a• letter to coworkers from alleged discri-
minatee - Aletha Johnson, who identifies herself as the
Union 's International representative and a former em-
ployee at Memphis Furniture Company, where she en-
gaged in union activities (Jt. Exh. 26).
The Company's initial , response, was a letter from Plant
Manager Ken Clark4 to employees in late September.
This letter reads in part as follows:
That's why simply having a union means ABSO-
LUTELY NOTHING! Everything depends on NE-
GOTIATIONS which BY LAW your Company
DOES NOT HAVE TO AGREE TO ANY-
THING OR MAKE ANY CONCESSIONS.
That's when the other side of the union picture
comes into focus.
STRIKES, LOST PAYCHECKS, NO BENE-
FITS, NO UNEMPLOYMENT PAY, AND
OFTEN LOSS OF JOB. The other side of the
story is EXACTLY WHAT HAPPENED TO
MEMPHIS FURNITURE-COMPANY AND TO
OTHER FURNITURE WORKER UNION
PLANTS.
`The approximately 1000 employees who were '
working at Memphis Furniture Company before the
Furniture Workers • Union and its long strike are
now down to around 200. That's right-800 Union
jobs lost!'
Of course, that's just the start.
Ask the Union Agents about Fort Smith Chair
Company. Here is another sad but true example of
the other side. ,The Furniture Workers Union called
a long strike at Fort. Smith Chair and caused many
of their members to lose their jobs when they were
discharged. (Jt. Exh. 77).
* The pleadings establish that Clark was a supervisor within the mean-
mg of the Act.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A few days later, Respondent sent a letter to employ-
ees saying that the Union could not solve the Company's
problems, but "could' compound them"- (Jt. Exh. 76). In
October and early' November, the ^ Company issued a
series of leaflets presenting the Company's point of -view.
Some of them. stress the Union's alleged propensity for
strikes and violence, loss of jobs, and the failure of em-
ployees to get improved benefits.(Jt. Exhs. 63, 75). The-
,failure-of another union to obtain improved benefits after
a=strike was also noted•.(Jt. Exh._74).,-Those employees
who wanted "steady work" and "no strikes" were urged
to, vote "No'-''(Jt. Exh. 51), and possible loss of jobs was
noted in other- leaflets -(Jt.; Exhs. 54, 60). A. company
letter to employees asserts that many ;"unionized plants"
had "closed their doors" (Jt. Exh. 64), while another
states that the Union at other companies had caused em-
ployees to lose' their jobs and health insurance, and had
fined union members (Jt. Exh. 61). t
The Union replied- in October `with leaflets which in
general • showed the' benefits of unionization, and which
responded to some of Respondent's leaflets. One of them
was a leaflet purporting to tell "The Real Memphis Fur=
niture. Story" (Jt. Exh. 14). • -
Alleged discriminates Donald' Tanner testified that he
saw 40-50 antiunion posters in the plaht. The parties stip-
ulated that they were'20 by 30 inches in size . The posters
dealt with' strikes, fines, assessments , and the Memphis
Furniture-campaign. 'One of'them said that 800-900 em-
ployees at Memphis Furniture had' lost their jobs^ because
of the Union.
Another poster was put up in the cafeteria•oii Novem-
ber- 3, • the day' before the election., It had the names' of
Pilliod employees on it , with -a red line separating one
group of names from another. According to the testimo-
ny of Tanner and other witnesses,-' the poster stated that
those employees whose _ names appeared below - the' red
line would be the first laid off if Pilliod were Memphis
Furniture Company. Two-thirds of the' names 'of Re-
spondent's employees were below the-red. line:. ' ,
Former employee Mary Griffin testified.that Supervi-
sor Rob Allison6 came to-'her work station and- told her-
about a poster in the cafeteria, and that those employees
whose names were below the red line would-be the first
to be• laid off if the= Union came ,in. Griffin saw the
poster, and observed that her name was above the red.
line. Other employees talked to Griffin and were fright-
ened that they were going to lose their jobs. Griffin's tes-
timony was corroborated by current employees Nora
Downs and Le' Westmoreland. The ?latter; affirmed that
employees were in a panic, about - the poster, and, were
scared to death that they were going to lose their' jobs.
The poster stayed up only a short time on November 3.
This testimony is: unconti•adicted, and I credit it.
B. Clark's and Bailey's speeches
The Company's position-was repeated in,speeches to'
employees by Plant Manager Clark and Chief Industrial
S Wiley Ewing , Mary Gnffm, and Nora Downs
6 The pleadings establish ' that Allison was a supervisor within the
meaning of the'Act Allison 's first name appears as amended .at the hear-
ing.
Engineer Autrey Batley.' Clark made four speeches to
employees, the first one in late' August or September,
and the-last one on November 3. Larry Dixon testified
he heard three speeches, and'the evidence "indicates that
he did 'not hear' the last speech. According to Dixon,
Clark said essentially the same thing in all the speeches.
If the Union came in there was going to, be a strike,- and
the Company would be in the same position as Memphis
'Furniture, where the number of employees went down
from about 800 to about 250. This reduction was -the
fault of the Union. According to Le' Westmoreland,
Clark said that he did not want the Company pulled
down to the level of Memphis., Furniture because of
strikes and violence. He did not want employees to lose
their jobs because of the Union and, if the Union came
in, it would be detrimental to the Company.
' On -November 3, according to Westmoreland, Clark
said that he did not want employees to lose their jobs if
the Union came in,, and that the Company but not the
Union could guarantee' jobs: The Company would start
negotiations from the minimum wage level, and the em-
ployees-could lose benefits. Mary Griffin said that Clark
told the employees that they-=would not lose their jobs
and the Company could continue in operation. -On the
morning of the election, Clark distributed a job "guaran-
tee." ,Westmoreland crumpled up `her "guarantee" with
The pleadings establish that Batley was a supervisor within the mean-
ing of the Act `
The front of.the 'Guarantee" reads as follows
Guarantee .
This is our -PERSONAL GUARANTEE- and your ?LEGAL
DOCUMENT' that :. ' . '
you will have a job with our Company whether the union gets into
• our plant 'or riot, even though at one time or another for van 'ous rea-
sons you may'have signed a union card, as long as you'perform your
work satisfactorily,' follow our customary plant rules, and -we are
economically able' to operate this business successfully and work is
available . -, .
This 'Guarantee is provided to you by your Company for the ex-
press purpose of assuring our employees that there is no truth in
rumors that anyone will lose his job if the union is unsuccessful and
is 'an example • of the JOB SECURITY that can only'be provided by
your Company
Has the union ` given, you any kihd of WRITTEN GUARANTEE
that they can or -will • live up• to all BIG PROMISES 'and "HIGH
HOPES" they have made and are trying to make you believe-and
has the UNION given you a WRITTEN GUARANTEE that the
'UNION WILL"NOT CALL YOU OUT ON STRIKE'AND COST
YOU A,LOSS, OF-MONEY and POSSIBLY EVEN YOUR JOB?
=Compare this'WRITTEN,GUARANTEE of a job to the.unse-
cured statements made by,the union politicians and their supporters
that are not in any way legally binding and enforceable by law Hun-
dreds of Unionmembers who are•now out of work would gladly ex-
'change their liistory'of strikes, 'union fines, assessments, 'layoffs and
plant closings'fora WRITTEN GUARANTEE such as this -
The back'of the "Guarantee", reads as follows - •
) When! you Vote No,
[X]
It means NO Strikes , Dues, Fines, Assessments, Lost Pay Due to
Strikes, Picket Lines; Violence, Foiced Attendance at Union Meet-
ings, Umon Dictatorship " [Jt Exh 52 ]
PILLIOD OF MISSISSIPPI , INC 805
her name on it and-threw it on a pallet. Plant Manager
Clark saw it and picked it up.
Clark denied that he said the employees would get less
if the Union came in, but admitted that he spoke against
the Union. I credit the General Counsel's evidence as to
the first three speeches, the essence of which was that
union victory in the election might result in loss of jobs
as it had at Memphis Furniture Company, and loss of
benefits. In the November 3 speech, Clark said that em-
ployees would not lose jobs but that the Company would
start negotiating at minimum wage levels, and the em-
ployees could lose benefits.
According to Tanner, Bailey made several speeches
and slide presentations before the election, in which he
said that the Company did not have to give anything in
negotiations, could start at "ground zero," and that the
employees might -lose their benefits. This was partially
corroborated by former employee Kathy Henderson.
Current employee Charles C. Harper testified that Bailey
told employees that Pete Pilliod would "close up the
place" if the Union came in. Bailey admitted making
speeches to three or four groups of employees. He also
denied the statements attributed to him by the General
Counsel's witnesses. However, Bailey stated that he
could remember only about half of the statements he
made. I credit. the testimony of Tanner, Harper, and
Henderson as related above.
C. Alleged Individual Violations of Section 8(a)(1)
1. Statements of Rob Allison -
Former employee 'Dennis Bracken, a union supporter,-
testified that he started wearing union insignia in about
July, and that Allison told him that he thought that
Bracken had better sense than to get-involved with the
Union, that it was not going to do the employees any
good, that all the Union would do is charge union dues
and fines, and that the Company would close the plant
down before they would think of having a union in it.
Allison told Bracken, that he could get his,union card
back, but Bracken was not interested. .
In late September, according to Aletha Johnson and
current employee Anthony Ray Pippen, Allison told em-
ployees that they -would get an indefinite layoff if they
were caught distributing union material in the plant or
placing union stickers on anything. Johnson protested to
Allison that a procompany employee had worn -a noose
around his neck with a sign saying, "This is-what the
Union will do for you." Allison replied that the other
employee had a right to'voice his opinion. '
Mary Griffin affirmed that Allison 'took her to' the
breakroom during the week of the election, and told' her
that she had to make up her-own mind. When Griffin re-
plied that she had- done so, Allison told her that she
would lose all _ her benefits if `the Union came 'in, and
showed her pages from a company, handbook depicting
bomb threats, and people killing each other (G.C..Exh.
3). On November 3, Allison arid Clark gave Gnffin • a
"job guarantee" (Jt. Exh. 52), and said that she-Would
not be laid off if the Union came in.9
9 Supra, fn 8
Current employee Anthony Ray Pippen testified that
he had a conversation with Allison in mid-October.
Pippen was wearing a union button at the time. Allison.
asked. whether Pippen had a-family, and Pippen replied
in the negative. Allison replied that if the Union came in
there would be a strike, and Pippen's family would go
hungry. Pippen replied that his family would not go
hungry, because'he would eat one way or another. -
Nora Downs' asserted that the Company required em-
ployees-to buy safety shoes. -After the election, about
November 21, Allison- told Downs to blame OSHA for
this, not the Company. Allison inquired, "You know
who brought OSHA in here, don't you?" The implica-
tion was that Aletha Johnson or the Union had done so.
Former employee Dennis Bracken testified that, in
mid-July, Allison told him that the Union was not going
to do the employees any good, that all they did was col-
lect dues and fines, and that the Company would close
the - plant down before allowing the, Union to come in.
Allison" did not testify, and I credit the uncontradicted
evidence from the General Counsel's witnesses.
2. Statements. of Randolph Hopkins
a. Hopkins' supervisory status
The parties stipulated that Hopkins was a supervisor
no later than August-8, but the General Counsel- argues
that he achieved that status at an earlier date.
Hopkins began working as a janitor in December 1982.
When production began in February 1983, Hopkins was
made leadperson in the packing department. He testified
that, although he. could not discipline employees himself,
he could recommend such discipline, and that such rec-
ommendations were followed most of the time. Hopkins
also admitted that he was promoted to foreman of one of
the assembly -lines in June or July 1983 and that, as such,
he could discipline employees and gave them their duties
for the day. Although Hopkins contended that he was
only a supervisor, in training beginning about 4 weeks
before August 8, -he -admitted that as' such he could disci-
plnne'employees, effectively recommend - discharge, and
correct employees concerning their 'work.' -
I conclude- that Hopkins was a supervisor within- the
meaning of the•Act not later than about July 1.
b. Hopkins' statements
_r (1)-To Martin A. McDonald .
Former employee- Martin A. McDonald, testified that
he knew an employee named Beverly '"Gist who had- been
discharged., McDonald stated that Hopkins called Gist a
ringleader of the Union. Gist asked McDonald to sign a
union card, and. he did so. Hopkins -told McDonald,
sometime in July, that if the • bosses found out that
McDonald` had signed 'a, card, he `would be terminated
for union activities.
McDonald further affirmed that an agent of the Board
approached him and asked whether Gist had been 'fired.
McDonald reported this to Hopkins. Hopkins observed
that McDonald could be terminated "if it got around."
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The clear implication is that the reason for the termina-
tion would be giving information to the Board.
Hopkins agreed that he had a conversation- with
McDonald about union cards. McDonald asked • him
whether he would get into trouble if he signed one, and
Hopkins replied in the negative; saying that it was
McDonald's decision to make, and that it was against the
law for the Company to dissuade him from doing so.
However, Hopkins also admitted that he had never
heard of the NLRB' until he was subpoenaed in this pro-
ceeding. Hopkins also agreed that he had a conversation
with McDonald about Gist. According to Hopkins,
McDonald complained that he was being "harassed by
some people." Hopkins contended that McDonald'said it
was a union official. He assertedly replied to McDonald
that it was "against the law to be harassed by officials
like that." Hopkins also denied the statement that-Gist
was a union ring leader. -
McDonald appeared to be a truthful-witness. Hopkins,
however, was not reliable. He had formerly been a-
minor league baseball player, and blamed a strike called
by a union of major league players for his failure to be
called up to the major leagues. Hopkins thus-manifested
antiunion bias. I do not credit his asserted reply to
McDonald's inquiry concerning union cards-since Hop-
kins had never heard of the NLRB, it is unlikely that he
would have been reciting "the law" to McDonald. Nor
do I credit Hopkins' contention that McDonald com-
plained- about a union official-McDonald was quite
clear that it was an agent of the Board.
Accordingly, I find that Hopkins told McDonald that •
he would be fired if the bosses -found out that he had
signed a union card. He- also told McDonald, in effect,
that the same thing would happen if it became known
that McDonald had given information to the Board. - -
(2) To Steven P. Donaldson
Donaldson was a prounion employee who was laid off
in February 1984. He testified that, in mid-October, Hop-
kins asked him how he felt about the Union and Donald-
son replied that he did not know. Hopkins responded:
"I've played pro ball and you can see what the Union
has done for me. You're a smart boy, you can figure it
out."
Donaldson further asserted that, in mid-November,
Hopkins told him that Aletha Johnson had.called OSHA,
and that he could thank that "fat. bitch" for the safety
shoes.
Hopkins agreed that he had a conversation with Don-
aldson about the Union. Donaldson was wearing a union
button, and other employees were kidding him. Hopkins
contended that he said that it was Donaldson's right to
wear whatever he wanted to wear. He also admitted that
he blamed Aletha Johnson and the. Union for the safety
shoes , but denied that he ever said : "You see what the
union'did for me. You're a smart boy, you figure 'it out."
On the other hand, Hopkins admitted telling Donaldson
that he had been "hurt" in baseball by a union. -
I credit Donaldson's version of these conversations.'"
(3) To Willie Holliday and Mike Mizell
Current employee Willie Holliday testified that, about
5 days before the election, Hopkins told him that he
knew Holliday was for the Union. Hopkins further said:
"If you don't stop fucking around-with that black' bitch'
ass, Aletha Johnson, you won't have a job here at all."
After the election, according to Holliday, Hopkins said
that "they" were requiring the employees to buy "those
high priced shoes." Current employee Mike Mizell testi-
fied that Hopkins made similar statements about safety
shoes in mid-November, referring to Johnson as that
"fat-ass gal."
Although Hopkins denied the verbal descriptions of
Aletha Johnson attributed to him by Holliday and
Mizell-saying that such words are not in his vocabu-
lary-he admitted discussion of safety shoes and blaming
them on the Union. I credit the testimony of Holliday.
and Mizell.
3. Statements of William E. Voelz Jr.
a. To Wiley Ewing
Current employee Wiley Ewing testified that William
E. Voelz Jr. became foreman of the bookcase assembly
department after the departure- of the former supervisor.
The parties stipulated that Voelz became a supervisor no'
later than October 3,'° and that this status terminated on
January 3, 1984. Ewing testified that, about a' month
before the election, i.e., about October 4, Voelz asked
him how many people on the assembly line were actual-
ly voting for the Union. Voelz testified that he could not
remember this conversation. I credit Ewing. I further
find that this conversation took place during the period
when Voelz was a supervisor. i i
b. To Kathy Ann Henderson,
Henderson, a union supporter, affirmed that, about a
week before the election, ' Voelz !told her that she was
hanging around with the wrong' crowd, and that he
wanted to talk to her about the 'Union. Henderson re-
plied that she already knew about the Union. Voelz testi-'
Pied-that he could not remember having such a conversa-
tion.' Henderson was a credible witness, and Voelz"
denial was vague. I credit Henderson.
c. To James Dantzler
Current employee James Dantzler affirmed that Voelz
had a conversation with him about 3 weeks before the
election. Dantzler• was wearing a,.union :cap.- Voelz told-
him that, he did not.. know - that - Dantzler was crazy.
enough, to,vote for the Union:,Later the same, day, Voelz
told him that Pete ,(Pilliod), the owner ; of the plant,
would move the plant if the Union came in. Voelz
denied knowing Dantzler, and said that he could not re-
member telling anyone that he was crazy to vote for the
10 Voelz asserted that the beginning date was October 4 I accept the
stipulation of the parties
ii Ewing attributed other statements to Voelz prior to the date that
the latter became a supervisor -
PILLIOD OF MISSISSIPPI, INC.
Union. Voelz was again vague, and I credit Dantzler, a
believable, witness. - -
4. Statements of Don McWhirt
Former employee Larry Dixon testified' that, in mid-
September, Supervisor Don McWhirt12 said: "That
damn-Union is going to get you fired." Dixon was wear-
ing an insignia at the time. Dixon said that McWhirt's
statement did not frighten him. In late September, ac-
cording to Dixon, McWhirt told him' that: "You know if
the Union doesn't go in you're supposed to get a 50-cent
an hour raise in December."
Dixon further stated that, in early September,
McWhirt told a group of employees that anyone caught
posting or 'dropping union propaganda on company-
property would be dismissed. Charles C. Harper placed
this conversation in October, and said that McWhirt re-
ferred to union handbills.
As McWhirt did not testify at the hearing, I credit the'
otherwise believable testimony of Dixon and Harper.
5. Statement of Wanda Steen'
Former employee James Dantzler testified that, in-the
latter part of September, Supervisor Wanda Steen13 told
him that, if the Union came into the plant, Pete Pilliod
was going to tape the plant up and leave town. Steen ad-
mitted knowing Dantzler, could not recall talking about
a union with him, and denied making the statement at-
tributed to her. Steen was an unreliable witness on other
issues, and I credit Dantzler's testimony.
6. Statement of Gayle McCarty
Steven P. Donaldson affirmed that, about a month
before the election, Supervisor Gayle -McCarty14 told
employees in the packing department that any employee
who put up union stickers or distributed union handouts
or leaflets would be "written up, and. after 3 writeups
would be terminated." On direct examination, McCarty
admitted talking to employees about the Company's no-
solicitation rule,15 but denied telling them that they,
would be discharged if they put up union stickers. On
cross-examination , McCarty contended that she did tell
employees that they would be terminated if they were,
caught putting up any stickers on company property.,
However, the witness further admitted that her pretrial
affidavit avers that she did not recall making any such
statement. McCarty said that her testimony at the hear-
ing, rather than her affidavit, was 'correct. She had
thought 'about -the subject more since the time that she
signed her affidavit., Nonetheless, McCarty was unable to
recall the date that' she made the statement to employees.
I credit Donaldson's testimony rather than the contra-
dictory versions put forth by McCarty. '
12 The pleadmgs establish that McWhirt was a'supervisor 'within the
meaning of the Act. • - '
18 The pleadings establish that Steen was a supervisor within the
meaning of the Act.
14 The pleadings establish that McCarty was a supervisor within the
meaning of the Act
15 See infra, subset . 10
807.
--7. Statement of Bobby- Ray Slagle -
Donaldson also testified that, about the time the no-so-
licitation rule was promulgated,ts Assistant Plant Man-
ager Bobby Ray Slagle 17 said that they had "bad reports
about [Donaldson's] passing out union material in the
plant," and that he would be terminated if the Company
could get one witness to confirm this. Slagle was asked
on direct examination whether he had ever had a con-
versation with an employee about -"union stickers," and
answered affirmatively. Slagle identified Donaldson as
the employee. His further testimony reads in part as fol-
lows: - - •
I told him that if the union had-if we had anybody
that would testify that they saw him putting up
union-any kind of sticker, that he would be termi-
nated. -
Slagle's first version of his statement-that he said
union stickers-is obviously correct and corroborates
Donaldson. I credit the latter's testimony.
8. `Statement of Charles Woodall
Alleged discriminatee -James. White testified that he
had a conversation with Maintenance Superintendent
Charles Woodall,"' at a time when White got a raise to
$7 an hour. Woodall then told White that he "stuck his
neck out" to get White the raise. White replied that- he
would try not to be a" "thorn in [Woodall's] side," mean-
ing that White would not engage in union activities.
Thereafter, White attended union meetings, distributed
leaflets, and obtained 35-40 signatures on union authori-
zation cards. In the last week of September, when White,
was distributing leaflets, Woodall said that White had
been "out in front of the plant" that morning, and that
Woodall thought they had an agreement. White
shrugged and went -back, to work. Later the same day,
Woodall told White that he wanted to call the latter's at-
tention to some lies in a contract with another employer
which the Union had passed out. White said that -they
still needed a union, and Woodall replied: "You'd better
watch yourself."
Woodall testified that he and White were "professional
friends" and talked together, but denied that they ever
talked about the Union. However, Woodall admitted that
he could' only recall •10-12 percent of the conversations
he had with White.
. In light of ` Woodall's' admittedly deficient -memory;
and because White was a believable witness, I credit his
testimony.
9. Statement of Ernest Byrd.
Steven P. Donaldson further affirmed that he was
wearing 'a union ; T-shirt. in' mid-'October when Shipping,
'!.See infra, subset. 10. -
17 The pleadings establish that Slagle was •a supervisor within the
meaning of the Act
18 The pleadings establish that Woodall was a supervisor within the
meaning of the Act.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Ernest Byrd' 9 approached and told him to
take the shirt off and put on another one, because Byrd
did not want to see Donaldson get into trouble. Byrd ad-
mitted having some conversations with Donaldson, but
said that he could not remember, or did not think that
they had.a conversation about the Union. He could not'
remember the substance of the conversations. Byrd said
that he did not consult with company counsel before the
hearing, and that the latter's questions surprised him.
Donaldson was a more believable witness-than Byrd; and
I credit the former's testimony.
10. The alleged unlawful no-solicitation/distribution
rule
The 'pleadings and evidence establish that Respondent
posted the following rule near the timeclock about
August 23, as additional conduct prohibited by Respond-
ent in its "Plant Rules of Conduct":
Interfering with any employee's work duties or dis-
tributing literature in work areas or soliciting during
time the employee should be working, or interfering
with the work of another employee during the time
they should be working.
As indicated above, the complaint, as amended , alleges
that Respondent discriminatorily and disparately. promul-
gated and maintained the rule. This Respondent denies.
Although Plant Manager Clark testified that the rule
applied to all employees including supervisors, the hear-
ing produced an overwhelming mass of ciedible evi-
dence to the effect that Respondent permitted siipervi-
sors and antiunion employees to solicit employees and
distribute antiunion literature in work areas' during work-
ing time , while enforcing the rule with respect to proun-
ion employees.
Thus, Supervisor Randolph Hopkins frankly admitted.
passing out handbills on the assembly line which he su-
pervised, during working hours. Supervisor Voelz made
a similar admission . Plant Manager Clark himself admit-
ted passing out his "work guarantee"20 to employees on
election day. "I gave that to each employee," Clark testi-
fied. "I went to the individual working stations.and gave
it to individuals."
Donald Tanner credibly asserted without contradiction
that Supervisors John Holloman and John -Jewell21
handed him procompany literature while he was work-
ing. Charles C. Harper testified without contradiction
that Supervisor Don McWhirt gave him a company leaf-
let (G.C. Exh. 20) attacking union activist Aletha John-
son, during working time. Mary griffin's and -Nora
Downs' believable and unrebutted testimony establishes
that Supervisor Rob Allison gave them antiunion litera-
ture during working time when they were on the line.
Allison took them into the breakroom for 1-2 hours, and
showed them a "green book" depicting union violence.
Former employee Robert G. Johnson affirmed without
19 The pleadings establish that Byrd was a supervisor within theimean-
ing of the Act
20 Supra, fn 8 -
21 The pleadings establish that Holloman and Jewell were supervisors
within the meaning of the Act. -
rebuttal that he worked in the embossing department,'
whose supervisor was Douglas Skinner, and that he re-
ceived company campaign material from Skinner during
working time. On three or four occasions; Skinner told
him to stop his machine and read the literature. Johnson
also saw the "green book" (G.C. Exh. 3). Westmoreland
credibly testified that Plant Manager Clark and Supervi-
sor Wanda Steen gave her antiunion literature while she
was working.
Clark admitted that, he allowed supervisors.to hand
out company literature during working time. He also ac-
knowledged that the areas where this was done were
considered working areas.
It is clear, beyond doubt that Respondent's supervisors
solicited employees - to vote against the Union, and
handed out antiunion literature, during working time in
working areas. The evidence.also shows that many em-
ployees discarded this literature, creating a litter problem
in work areas.
The evidence is -also-clear that Respondent permitted
antiunion employees to engage in the same activity.
Thus, Wiley 'Ewing testified that antiunion employees
Jim Foshee and Roy Gunter distributed antiunion T-
shirts and caps during working time while supervisors
were looking at" them. Although Gunter and Foshee as-
serted that these activities were restricted to' nonworking
time , such as break periods, and to nonworking areas,
their assertions are not believable. Gunter admitted that
he'took break periods which for the most part were dif-
ferent from the break periods of other employees. West-
moreland testified ifiat Tom Bailey, the foreman of as
sembly line 5, told Westmoreland that Foshee's campaign
activities were interfering with production, and that
Bailey complained to Slagle. Ewing credibly testified
that he. reported Foshee's and Gunter's distribution of
antiunion T-shirts during - working - time to Supervisors
Allison,,Voelz, and Hopkins, and asked whether it was
legal. He received no response, and the distribution con-
tinued thereafter. I -do not credit- company denials of
Ewing's report. Le' Westmoreland testified that Foshee
and other employees distributed antiunion literature in
the finishing department during working time when the
supervisor, Wanda. Steen, was present. This testimony
was corroborated by Dantzler. Steen denied seeing any
of the -procompany employees engaged in such activities,
but asserted that she saw Dantzler distributing prounion
buttons. Steen was an evasive witness, as appears herein-
after in connection-with Westmoreland's case,. and I.do
not credit her testimony. Anthony Ray Pippen -testified
that employees distributed antiunion material in Allison's
department while he was in the area, without -interfer-
ence from Allison. -
Finally, according to Westmoreland, a "loyal employ-
ees' committee" remained "on the clock" while meeting
in a breakroom. Westmoreland checked the timecards,
and I credit her testimony. Supervisor Bailey admitted
that he "stopped by" for a few minutes during a commit-
tee meeting.
It is also clear that Respondent enforced the rule with
respect to prounion employees. Supervisor Hopkins ad-
mitted this. As described above, Supervisors McCarty
PILLIOD OF MISSISSIPPI , INC. 809
and Slagle told employees that they would be disciplined
in the event they violated the no-solicitation rule. Final-
ly, as described hereinafter, Tanner was disciplined for
violation of the rule and the same violation was ad-
vanced by Respondent as one of the reasons for Aletha
Johnson's discharge.
D. Factual Summary and Legal Analysis
The credited evidence thus shows that Respondent
threatened employees with plant closure or removal if
the Union won the election. These statements are clearly
coercive under established Board law. The statements
that bargaining would begin from "ground zero," and
that employees might lose their benefits if the Union
won were also coercive. De Queen General Hospital, 264
NLRB 480 (1982).22
Respondent also threatened employees with discharge,
indefinite layoff, and reprimands if they signed union
cards, gave information to the Board, or associated with
union leaders. One employee was told that the "damn
Union was going to get him fired." The "red line"
poster, on the day before the election, threatened em-
ployees with loss of jobs if the Union won. These state-
ments and writings were also coercive.
In the context of this widespread unlawful conduct,
the statement of a supervisor (Byrd) that' an employee
might get into trouble if he did not take off a union T-
shirt constituted an unlawful threat of indefinite reprisal.
The complaint alleges that the statement of a Supervisor
(Woodall) to a prounion employee-"You'd better watch
yourself-created an impression of surveillance. I agree,
but note in addition that it also constituted a threat of in-
definite reprisal. The statement to an employee that his
family. would "go hungry" in the event the Union came
in was a specific threat, and was unlawful. The statement
of a supervisor (Voelz) to a prounion employee that she
was "hanging around with the wrong crowd" gave that
employee an unlawful impression that her union activi-
ties were under surveillance.
The statement of a supervisor (McWhirt) to an em-
ployee, that the latter was supposed to get a raise in De-
cember if the Union did not come in, was an implied
promise to grant a benefit during an organizational cam-
paign, and was unlawful. J. J. Newberry Co., 249 NLRB
991 (1980).
I also conclude that Respondent's overall campaign
violated Section 8(a)(1) of the Act, in light of its posters,
campaign literature, and Clark's and Bailey's speeches. In
a case where the employer made similar speeches, the
Board stated:
We find that the above statements unlawfully em-
phasized the inevitability of strikes and threatened
the loss of strikers' jobs and plant closure. More-
over, these statements were made in the context of
other conduct violative 'of Section 8(a)(1), including
. :. campaign literature concerning the effects of
unionization , and other remarks made to employees
by supervisors, through which Respondent also em-
phasized the inevitability of strikes and threatened
employees with loss of jobs and plant closure. Grove
Valve & Regulator Co., 262 NLRB 285 (1982).
The same, rationale applies to the facts in this case.
The statements that the Union was responsible for the
company requirement that employees purchase safety
shoes, standing alone, might be. considered inoffensive.
However,- in context with Respondent's widespread cam-
paign to denigrate the Union, the statements about the
cost of safety shoes further tended to disparage the
Union, and violated Section 8(a)(1).
Respondent's last minute "job guarantee" and Clark's
assurances of continued employment in his speech on
November 3 did not constitute effective repudiation of
these threats. The Board has stated as follows: ..
It is settled that under certain circumstances an
employee (sic) may relieve himself of liability for
unlawful conduct by repudiating the conduct. To be ,
effective, however, such repudiation must be
"timely," "unambiguous ," "specific in nature to the
coercive conduct," and 'free from other proscribed
illegal conduct." [Authorities cited.] Furthermore,
there must be adequate publication of the repudi-
ation to the employees involved and there must be
no proscribed conduct on the employer's part after
the publication. [Authority cited.] And, finally, the
Board has pointed out that such repudiation or dis-
avowal of coercive conduct should give assurances
to employees that in the future their employer will
not interfere with the exercise of their Section 7
rights. [Authorities cited.] [Passavant Memorial Area
Hospital, 237 NLRB 138 (1978).]
The language of the "job guarantee" is ambiguous.
From the statement that employees would not lose their
jobs if the Union failed to win, employees might reason--
ably infer that this would happen if the Union won.23 I
conclude that the "guarantee" and Clark's last speech do
not meet the Passavant criteria. Respondent's disavowal,
on the day before the election when the red line poster
was being posted, was not timely and was not free of
other proscribed conduct. Further, there was proscribed
conduct after the purported disavowal since , as I find
hereinafter, Respondent discriminatorily refused to trans-
fer Le' Westmoreland from the finishing department at a
time subsequent to the purported disavowal.
With respect- to Respondent's no-solicitation/-
distribution rule, the evidence clearly shows that the
Company's plant manager himself violated the rule, that
he allowed supervisors to do so, and that the Company
condoned violations of the rule by antiunion employees.
At the same time , Respondent rigidly enforced the rule
against prounion employees. "It is well settled that an
employer violates Section 8(a)(1) by failing. to enforce a
no-solicitation rule against activities similar to those in-
volved here, while simultaneously enforcing the rule
against solicitation on behalf of a union ." Saint Vincent's
Hospital, 265 NLRB 38; 40 (1982). Accordingly, -I find
122 See also Tra-Mar Communications, 265 NLRB 664 ( 1982) 23 Supra, fn 8
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, by engaging in such conduct , Respondent violated
Section 8(a)(l).
Since enforcement in.such circumstances violates the
Act, it follows necessarily that a threat to enforce the
rule in, the same "circumstances is'similarly coercive. Ac-
cordingly , I find that the statements 'of Respondent's su-
pervisors that employees would be fired if they were
caught distributing , or posting union literature ,' while Re-
spondent was'at the same time allowing supervisors and
other employees - to engage in such activity , violated Sec-
tion 8(a)(1). Indeed ; such threats themselves constituted
enforcement of the rule. '
Taking into account Respondent 's 'widespread unfair
labor practices, which , conveyed to employees the inten-
sity of Respondent's opposition to the Union , I also con-
clude that Supervisor Hopkins ' inquiry to an employee,
as' to how he felt about the Union, and Supervisor Voelz'
question as to how many employees were voting for the
Union, were coercive and unlawful.
C. Alleged `Violations of Section 8(q)(3)
1. The discharge ' of Aletha ' Johnson on October 10
a. The.hiring ofJohnson.
Johnson ' had `previously been . employed by Memphis
Furniture Company . She was ' laid off in February 1981,
and didvolunteer - work for ;the Union for about a year.
In September , 1982, she , became -a paid organizer for the
Union , : and in February ' 1983, her status with Memphis
Furniture was changed to'"indefinite - union leave of ab-
sence,'-', -
Johnson ,. filed an,,,employment , application with • Re-
spondent on January 12, 1983 . A union publication states
that she did so,for organizational purposes Qt. Exh. 9).
In the application , Johnson listed her previous -employer
as `-`M & L . Furniture' 'Company" in St, -Louis," Missouri,,
where she - ^worked ''from -April 1'973 to February .1980.;
The application states ;that_she- left ;because the plant,
closed .(G.C. Eich . 5). Johnson , testified that M & L and
Memphis Furniture were related ' firms ;. but^conceded that
M& L w,as not located in St . Louis- and that the -plant.
did' not close . She withheld the information that: her last
employer was Memphis Furniture Company . However,
Johnson further testified , she did have about 8 years of
experience as a furniture -worker . It is clear that Johnson
falsified information on' -her' employment application. She
was a full-time worker after .her hiring and was compen-
sated by Respondent.
"' b:`Johnson's union activities-
;;Johnson . participated in the union . ca_mpaign.as indicat-
ed,;above . She, said that , she:did notknow the, time that
the, Company;becameaware of this, but believed it to be-
in ,July, because , . Pete;,Pilliod ,_ the ,owiier, of the plant,
came to the line and stared at her . In late July; Supervi-'
sor Allison told her . that , she. could not go to the bath-
room . without a supervisor .,•When -*she wasworking, in
the 'finishing ' department , . either supervisor ' Wanda Steen
or another supervisor followed her every time she went
to the bathroom,
As noted above , Johnson issued a letter to employees .
in September in which she identified herself as the
Union 's International representative and a former em-
ployee of Memphis Furniture Company (Jt. Exh. 26).
- Johnson credibly - testified that Respondent put up a
poster about her on September 23. It stated that she was.
employed by the Union with a salary of $13,000, and
was on leave from Memphis Furniture Company. Plant
Manager Clark conceded that he brought up Johnson's
name during the campaign , and the fact that she had
been employed by Memphis Furniture. -
c. The first interview with Plant Manager Clark
Johnson spoke to Supervisor - Allison about the poster
on September 23. He replied that she could not be flied
for having two jobs. Johnson had a meeting with Plant
Manager Clark the same day . He produced her employ-
ment application , and asked whether she had signed it.'
Johnson acknowledged that it was her signature. Clark
said that he could fire her for falsifying her application,
but, did not know what to do about her. Clark said he
knew that there was an employee -named "Aletha John-
son" at Memphis Furniture , but wanted to know wheth-
er ' was .another individual with the same name.
After some time , Johnson asked Clark whether he
wanted her to, continue sitting in his office. "No,". he re-
plied , "you can go back to work . There I can keep an
eye on you." Johnson 's testimony about this interview is
uncontradicted , and I credit it..
d. Supervisor Bailey's meeting with employees
"On October 7, Supervisor Autrey Bailey and other'su-
pervisors showed a movie to employees in the cafeteria.
Johnson was present , ad described the movie as antiun-
ion in nature . There was a question -and' answer period
after-the movie.'After'some discussion , Johnson stood up
and said that Bailey and ` the movie had implied that there
would be "nothing by the union" in the event 'of a 'strike,
i.e., nothing for the strikers. Johnson took a group of
canceled checks out of a kit which she was carrying. Ac-
cording , to Johnson,' they were union checks paying
house notes; car riotes , and utilities bills- of Memphis Fur-
niture employees . Johnson put the canceled checks on a
table,
Bailey told 'her to sit down , and Johnson ' replied that
she had as much right to talk as anybody and, further,
Bailey ' had `raised the-subject . Johnson continued to'tell
the employee s ' that 'if• they ;wanted to know the whole
truth ,-, she was available . Bailey ' said that Johnson' had
made '$ 13,000 (from''the Union) the prior year . Bailey fi-
nally_ instructed 'theemployees ' to. return to work.
"Johnson then joined a discussion about insurance be'-
tween`Westrrioreland and Supervisor Slagle . She told the
latter that he''had a high rate of absentee 's because the
chemicals '` in the plant and''the long hours were making
people sick , On the way back to her work station, John-
son ,gavè an employee a "guarantee of union representa-
tion ." Supervisor Allison took it away from her, but then
gave it back when Johnson told him that it was not his
property.. : _ ,
PILLIOD OF MISSISSIPPI, INC.
e. The anti-Johnson leaflet
On the same day, October 7, Respondent distributed a
leaflet attacking Johnson. At the top is a legend reading:
"WANTED: PUSHER ALETHA B. JOHNSON." The
substance of the leaflet contains reprints of two articles
written by Johnson, together with two pictures of her.
The commentary states that Johnson was an inplant or-
ganizer, although she had "a job" with Respondent. Her
function was to spread lies and false rumors to deceive
the employees with "cloak and dagger tricks." The
poster itself is pale yellow in color, whereas all of the
other company posters were white (G.C. Exh. 20). John-
son herself is black.
f. The discharge
Three days later, on October 10, Supervisors Slagle
and Allison told Johnson that Clark wanted to see her in
his office. Johnson said that she wanted to bring some-
body along with her from the line, but the supervisors
said she did not need anybody. Slagle remained in the
office. Clark told her she was terminated for falsifying
her records, and that he *could not have a union repre-
sentative in the plant interrupting company meetings.
Clark then asked Slagle to leave. When-Johnson and
Clark were alone, the plant manager said that he hated
to see her leave, because he had_ watched her work and
she was a good worker. Clark said that he hoped the
Company had run a clean campaign . Johnson replied
that she would have believed this until the last company
leaflet had been distributed. Clark asked the reason, and
Johnson said that the fact that the leaflet was colored
was intended to emphasize the fact that she, Johnson,
was colored. Clark denied this, and said that the Compa-
ny simply wanted to put some variety into its literature.
Johnson's termination report states that she was fired
for attempting to hand out union literature on company
time, for disrupting company meetings, and for falsifying
her (employment) application (G.C. Exh. 6).
g. Legal analysis and conclusions
Respondent argues that Johnson was not an "employ-
ee'.' within the meaning 'of the Act. The Company con-
cedes that "a full time paid union organizer working for
an employer" may be entitled to the protection afforded
an "employee" within the meaning of the Act. However,
the fact, that Johnson had this status at the time of hiring
requires that she be "divested" of this status. To rule
otherwise would be "sanctioning labor espionage."
The, Board has already ruled on this issue. In a case
where the -unionnion directed two organizers to apply-for
jobs for organizational purposes, and where they were
hired by,.worked for, and received compensation from
the employer, each was held to be an "employee" within
the meaning of the Act. Oak Apparel, Inc., 218 NLRB
701, 706-707 (1975). The same rationale applies to John-
son in this case.
The ,first reason for discharge in the termination report
is attempted distribution of union literature on company
time . However, it is well established that "discipline of
an employee pursuant to a no-solicitation rule violates
Section 8(a)(3) and (1) where the rule has been selective-
811
ly applied to prohibit union activities." Saint - Vincent's
Hospital, supra . As it has already been established that
Respondent 's rule was thus selectively applied, Respond-
ent's assertion that Johnson was discharged for violating
the rule manifests discriminatory motivation on its face.
The second reason given in the termination report is
disrupting a company meeting .- But Johnson was merely
participating in a discussion about unions initiated by Re-
spondent at a meeting of employees . Moreover, Clark
told her at the exit interview that he could not have a
union representative disrupting company , meetings. I con-
clude -that Johnson was engaged in protected activity at
the October 7 meeting , and that the , termination report
again shows on its face that the discharge was discrimin-
atorily motivated.
The third reason advanced by Respondent for the dis-
charge is Johnson's admitted falsification of her employ-
ment application . However, Clark knew this at his Sep-
tember 23 meeting with Johnson , but failed to discharge
her. Respondent cites L: B. Darling Division of Idle Wild
Farm, 254 NLRB 691 (1981), as authority for the propo-
sition that the delay in firing Johnson, after learning of
the falsification, does not warrant an inference' that the
discharge was discriminatory. However, Idle Wild Farm
is inapposite , because no union animus was found, unlike
the case at bar, and because the alleged discriminatees
were not credited . Moreover, there was no additional
protected activity immediately preceding the discharge,
as was the case ' at the Autrey Bailey meeting on October
7. Accordingly , I conclude that the delay in discharging
Johnson, after the Company established on September 23
that she had falsified her application until she defended
the Union on October 7, shows that the falsification
reason was pretextual.
Finally, the fact that Clark told Johnson that she was a
good worker and that he hated to see her leave provides
conclusive proof that Respondent 's motive was unlawful.
I, therefore , find that the General Counsel has estab-
lished a strong prima facie case that Johnson's discharge
was discriminatorily motivated , and that Respondent has
not rebutted that case . NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 ( 1982).
2. The discharge of James White on October 19-
a. Background
White was hired in December 1982 as a machine main-
tenance mechanic at $4 per hour. At the time of his dis-
charge on October ' 19 , he had received three wage in-
creases and was being paid $7 hourly : This was the high-
est: rate for an employee in White's classification. It was
equal to the wage of Superintendent . Woodall's assistant,
James. Culberson, and was $2 higher than that of other
mechanics.
No discipline had ever been administered to White. In
August, Woodall wrote a letter of recommendation, in
which he praised White's diligence , knowledge of me-
chanics, hard work, and attitude toward work (G.C.
Exh. 17). White testified without contradiction that he
812.1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had received praise from other individuals' in manage-
ment. He affirmed that. he trained other mechanics.- In
addition, White asserted, he had authority to take equip-
ment off company premises, to send pieces out-for weld-
ing, and to order material for the Company. Prior to
Culberson's appointment as Woodall's assistant, White
was in charge of the maintenance department in Wood-
all's absence. White protested Culberson's appointment,
and, was told by' Woodall that things were the same as
they were before. White denied that he had ever been
told he had to get Culberson's permission to do-anything.
Woodall denied that White had any duties different
from other mechanics: Asked whether White could order
material for-the Company, Woodall responded he "con-
ceivably" could do so, but only with Woodall's or Cu'l-.
berson's permission., Woodall - said that he once gave
White permission to" take home a wrench..
Woodall was a less 'reliable witness than White. Based,
on this fact, and White's high rate of pay, I credit his tes
timony- as to his duties and responsibilities. -
b. The discharge
As indicated above, White engaged in union activities,
including the distribution of leaflets. He was seen by at
least three supervisors - while doing this. The conversa-
tion between White and Woodall described above-in
which the latter said that he had seen White in front of
the plant that morning • (when White was distributing
leaflets), and that, the latter had better "watch himself'-
took place in the last week of September.
About 3 weeks later, on October 17, White worked
almost 12 hours ending' about 6 p.m. Woodall was out of
town that day. White had clothing at home which had
been soiled at work, and he picked up two bottles of sol.
vent methylene chloride and lacquer thinner for the pur-
pose' of cleaning 'his clothes. He carried the bottles by
their necks in one hand. As he passed' Supervisor Autrey
Bailey, in the main plant, he waved at Bailey and then'
punched - out.- Bailey testified. that he saw what • he
thought were two bottles of glue. He acknowledged that
White 'made no'attempt to conceal them. Bailey followed
White,- and saw him get into his car. 'After speaking with
Culberson, Bailey reported the, matter to Plant Manager
Clark. -
White used about one-half ounce of lacquer :thinner,
that- night to clean his clothes, and drove back to the
plant-the next morning with the bottles under his floor
board. He, forgot to bring them- into the plant. Another
employee told him that Autrey Bailey was -ready to
"write him up". for taking' the two bottles. -White went-.
back to his car, got the bottles, and went to talk to Plant
Manager Clark. He protested being "'written up,"- and
Clark replied -that he should' have. asked Culberson for
permission . Clark 'deferred the' matter until Woodall'•s
return.
Woodall returned the next day, October 19, was in-.
formed what had happened, and went to talk to• Clark.
White stopped him on the way and informed •him• that
the bottles-had been returned. In Clark's office, Woodall
and the'plant manager decided on the appropriate action
to-take. Woodall'told Clark that-the offense was .serious,
and that- they had to be able to trust employees: Clark
and Woodall determined that White had violated rule 10
of the Company's handbook, which prohibits "theft or
possession without proper authority of company proper-
ty, or property of another employee." A,first offense is.
punishable by a 1-day suspension 'or discharge (G.C.
Exli. 13, pp. 16-18). Woodall informed Personnel Direc-
tor Null of the decision to terminate White. Woodall ad-
mitted that he did not know whether White had used
any of the solvents.
Woodall stated on direct examination that he consid-
ered the, use of. these chemicals to be dangerous. On
cross-examination , he initially testified- that protection of
company property was the only ' concern which he dis-
cussed with Clark. He was asked, "So you didn't raise
anything about the safety factor?". Woodall replied, "Oh,
yeah, yes."
White was called to the office of *Personnel Director
George Null, with Woodall and another official present.
Null told White that he was being terminated for viola-
tion of rule 10. White protested and asked for lesser dis-
cipline, to no avail. Woodall asked what would have
happened if somebody had been "splashed in the eyes."
White was given his termination notice which states the
reason as ' removal of company' property from the prem-
ises without proper authority (G.C. Exh. 18). Plant Man-
ager Clark admitted that no one other -than White had
been discharged for theft.
-The record shows that chemicals such as the solvents
which White took home are purchased by the Company
in large tanks , and are used freely by, employees; to clean
machinery, without any attempt to economize in their
use. •, - -
c. -Employee use of company property
The General Counsel elicited testimony from several
witnesses24 to the effect that employees regularly took
home= articles. such as red rags, putty knives, brushes,
gloves, air nozzles , wrenches; and screwdrivers. The arti-
cles usually protruded from their pockets, and were visi-
ble to supervisors, according to the General Counsel's
witnesses . One 'witness who had been terminated re-
turned several tools to the Company at the hearing.
Donald Tanner stated that the supervisors would have
had to be blind to have missed this practice.
Assembly Supervisor Paul D. Miller, Jr.25 said that
loss of tools had always been a problem, but that neither
he' nor'other supervisors ever did anything about it. Su-
per'vi`sor Hopkins' admitted that he did not watch people
leaving the 'plant; then claimed that he did watch them
leaving his department-but'had riot seen anyone leaving
with tools. 'Superviso'r Woodall said that some employees
use their 'own tools' at ork; and that they are on the
"honor system" with respect to company property.
Woodall admitted on cross- examination that he saw em-
ployees carrying out'=red rags., Asked' whether he at-
teiripted to stop ;this, Woodall was evasive. Supervisor
Gayle McCarty also admitted that' missing tools were a
24 Brenda Thompson, Donald Tanner, Mike Mizell, Larry Dixon, and
Charles C Harper
25 The pleadings establish'that Miller is a supervisor within the mean-
mg of-the'Act - ' - . . , - -
PILLIOD OF MISSISSIPPI, INC.
problem. One employee took a screwdriver home but
brought it back. McCarty merely told the employee that
she appreciated it, but that employees should not be
leaving the building with tools: No discipline was admin-
istered. Supervisor Bailey contended that White-was the
only employee he ever followed because he never -saw
any other employee leaving the plant with company
property
I conclude that Respondent's control' of its tools and
other property, was lax. Although the Company contends
that every employee who took out company property
either did so inadvertently or,with supervisory approval,
the-evidence does not-establish this. At least some-of'the
taking was deliberate, while supervisory approval has
not been established in every instance. I also conclude
that supervisors were generally aware of the employees'
practice of taking company property home,-but did little
or nothing to prevent it. When an employee did so on
one occasion,. and returned the, item to Supervisor
McCarty, no discipline was administered. -'
d. Legal analysis
There is no question'that the. Company knew White
was a union activist-Supervisor. Woodall explicitly,
stated in late September that he had seen -White in front
of the plant, where the latter was distributing leaflets,
and he was seen by three other supervisors. - '
White was an exemplary and highly paid employee,
who had been praised by management: The reason for
his discharge asserted by Respondent is, that he `took
home two bottles of solvent without permission, in viola-
tion of a company rule.-Although White used only'one-
half ounce of this material, at certainly 'negligible cost,
Respondent never bothered to ask how.much , he used.
Respondent allowed other employees to take other items
of property home without effective control or discipline.
The Company thus tolerated' the same conduct in other
employees for which it administered the harsh penalty of
discharge in the case of White: The disparate nature of
this treatment is evidence of discriminatory..motivation..
Although White did break a rule , his infraciion was trivi-
al; and the Company seized on this violation to adminis-I
ter discipline out of proportion for the offense... "
The board of review of the Mississippi Employment
Security Commission reached similar conclusions. ,-Re-,
versing the decision of an examiner who- denied' White's
claim for unemployment benefits, the.,board; of review
held that, although White was in "technical; violation",of:
company policy, the evidence before the board sli'oed,
that the taking of. solvents; by, employees was common
practice, and had been condoned.by the Employer.(G.C;
Exh. 19). , a.
I conclude that the General Counsel has established, a
prima facie case that .White 's discharge was discrimina
torily, motivated. Respondent- has not.. rebutted,, this case
by - showing that White would-;have , been., discharged.
even if he had not supported the Union-indeed, no dis-
cipline whatever was administered in the case of infrac-
tions by other employees. I, therefore, conclude that Re-
spondent, by discharging White- because -of:his union ac-
tivities, violated Section 8(a)(3) and (1) of the: ,Act.
813
NLRB v. -Transportation Management Corp., supra ; Wright
Line, supra.
3. The warning issued to Donald E. Tanner on
October 21
a. The evidence
Respondent 's answer denies - the complaint allegation
that Tanner is an employee within the meaning of'the
Act. Respondent has not disclosed its reason for this con-
tention. The record shows that Tanner was employed by
Respondent on June 17, that he works as a millworker
with John Holloman as supervisor , and that he has no
other job. It is clear that Tanner is an employee within
the meaning of.the Act. Oak Apparel, supra.
Tanner was a member of the Union 's organizing com-
mittee and engaged in extensive union activities . He testi-
fied that, on the morning of October 20, he was distribut-
ing,leaflets outside the.plant. Just as Tanner entered the
plant, clocked in, and was standing on a walkway near
the restroom and water fountain , two employees ap-
proached him from behind and asked for leaflets. Tanner
identified one 'of them as Don Taylor. On the way to his
work station, Tanner received another request , and again
complied. -
- About an hour later, Tanner was called to the office,
where Superintendent John Jewell told him that he was
going to "write him up ." Jewell had a document already
prepared on his desk. Tanner - asserted to Jewell that
"Federal Law" gave him a right to engage in this activi-
ty on his own time. Holloman replied that he did not
care what "Federal Law says."
Jewell handed the document to Tanner. It states that
Tanner had- violated "Company policy" -by "handing out
literature inside of the plant ," and that another violation
would result in termination . The warning is signed by
Holloman and is dated October 21. (G.C. Exh. 12).
Tanner asked to see the rule that he had supposedly
violated. In response ,. Jewell showed him a rule in the
Company's, handbook for employees which prohibits
"personal work on company • property. either during or
after, working hours" (G.C. Exh. 13, rule 19, p. 19).
Jewell acknowledged that these events took place in
his office,•and said that the date was October-21. He'ad-
mitted that the rule which he showed Tanner was not
the actual rule for violation of which Tanner was disci-
plined.- Instead , it was the. no-solicitation/distribution
rule. Jewell simply showed Tanner a rule to "satisfy"
hun, •so_that Jewell could get back to work.
Jewell also acknowledged that he himself did not see
the violation. 'Neither did Holloman. He testified that a
Don Taylor.' had reported the event to him. Holloman
contended that Tanner handed out the leaflets before` 7
o'clock but after he had clocked in. Despite this latter
fact , however; Holloman admitted that the beginning
time 'for determination of employees' pay is 7 a.m.
1=Jewell ' identified a warning issued to another employ-
ee, Cynthia Rish, for "getting post sign on company time
an premises [sic]." This document is also signed by Hol-
loman and is dated October 26 (R. -Exh. 6). The warning
to, Rish indicates that it was a -violation of "company
814. DECISIONS OF NATIONAL LABOR RELATIONS BOARD "
policy." According to Jewell, Rish was circulating a pe-
tition during working time to get employees to volunteer
to do all overtime work which was required . Jewell said
that Rish was warned for violating the same rule which
involved Tanner. Although Jewell testified that Rish was
also told that she would be terminated if she committed
the same violation again, he could not explain why
Rish's warning, unlike Tanner's, does not contain this
further statement. Jewell agreed that Rish was ',`probably
pro-Company."
b. Factual and legal analysis
I conclude -that the leaflet for which Tanner was disci-
plined was the one which he gave to Don Taylor, and
that this took place on a walkway near the restroom and
water fountain. Although Tanner had already clocked in,
it was not yet 7 a.m., the starting time for pay purposes,
and, presumably, for work. Accordingly, I find that an-
other employee approached Tanner from behind and
asked him for' a leaflet during nonworking time. Tanner
complied. It is doubtful that this was a "work area"
within the meaning of Respondent's no-solicitation/-
distribution rule. Within less than an hour, Taylor report-
ed the matter to Holloman.
It is also clear that Jewell did not know what rule
Tanner had supposedly violated when he delivered the
warning to him. Jewell's attitude toward the discipline
was almost cavalier-he just wanted to get back to
work. -
The warning issued to Cynthia' Rish is almost without
meaning . Assuming arguendo that Rish actually did cir-
culate- a petition of the kind described by Jewell, such
action was in ;the Company' s interest, since Rish would
have been soliciting employees to volunteer for overtime
work. It is, therefore, incredible that Respondent would
have threatened her with discharge if she did the same
thing again , as asserted by Jewell. This fact, plus'the ab-
sence of any such warning on the document itself, impels
the conclusion that even if the incident did take place,
Tanner was given more severe discipline than " Rish for
supposedly violating the sane rule. This disparate treat-'
ment indicates discriminatory motivation.
The Taylor' episode suggests - entrapment of Tanner,
while the evidence concerning Rish indicates the possi-
bility that the Company simply manufactured the whole
thing in an attempt to prove even-handed enforcement' of
the rule. However, I need not decide these issues for one
of the reasons advanced in Johnson' s case . The" "disci
pline of an `employee pursuant to a no-solicitation rule
violates Section 8(a)(3) and (1) where the rule'has been
selectively applied to prohibit union activities .'Saint Vin-
cent's Hospital, supra. As this has" already been estab-
lished, I find that Respondent, by'its warning issued to
Donald Tanner, violated Section 8(a)(3) and (1) of the
Act. 26 ,
4. .The alleged discriminatory refusal to transfer Le'
Westmoreland
a. Westmoreland 's union activities
Westmoreland was hired in April and is still employed
by Respondent . The complaint alleges that she was dis-
- criminatorily " denied a permanent transfer for medical
reasons since about the third week of October because of
her union activities.
. Westmoreland attended a union meeting 'in June and
signed a card. She became a member of the Union's in-
plant committee and, beginning in late July, she engaged
in the distribution of leaflets at the-entrance of the plant.
This entrance was used by company supervisors. West-
moreland made house calls and obtained approximately
20 signed authorization cards. ,
Westmoreland spoke up for the Union at company
meetings of employees, and contradicted Supervisor
Bailey . Thus, when Bailey asserted that a Memphis Fur-
niture Company employee had been shot or cut during a
strike , Westmoreland denied it and said that it was a do-
mestic dispute.
On October 11, Supervisor Wanda Steen passed out a
booklet entitled "Questions Pilliod Employees Have
Been Asking ." It contained statements about Memphis
Furniture Company and other companies (Jt. Exh. 69).
Westmoreland asked Steen for some facts to support the
Company's position , but Steen did not have the answers.
Later on, the same or the following day, Steen gave
Westmoreland a handwritten document, supposedly pre-
pared, by company counsel and purporting to show the
decline in employment at Memphis Furniture Co. (G.C:
Exh. 21). "
About a-week later, on October 19, Westmoreland dis-
tributed an "open letter" to her coworkers. It criticizes
the Company's campaign literature, and labels as "' lies"
the Company 's responses to questions about the booklet
which Steen had just handed out (Jt. Exh. 20).
Westmoreland credibly testified that Supervisor Steen
and others praised her work prior to the issuance of
Westmoreland 's "open letter," and thereafter -criticized
her. ;In December, Westmoreland was elected president
of the' Union's local which services Respondent's em-
ployees. "
b. Westmoreland's work assignments and medical
problems
Westmoreland began work in the door line depart-
ment . In about mid-August, she was transferred to the
post line department under Supervisor Wanda Steen. On
October 10, she was transferred - to the,finishing depart-
ment, also called "deburg."27
Employees in the finishing department stain and spray
the tables -which Respondent produces, Wipe. them down,
brush and "cowtail" them, and run them through -ovens.
Westmoreland testified that the wiping job is the worst.
position in the . finishing department . Because it is -adja-
26 There is a difference in "the evidence as to whether this took place
on October 20 or,21. Although this is not an important issue, it probably
took place on the date indicated on the warning, October 21. .
.27 Steen contended that there was no transfer -of Westmoreland into
the•finishing department . Instead,,Steen had acquired the post line depart-
ment . This is mere sophistry
PILLIOD OF"• MISSISSIPPI, INC.
cent to the spraying operation, employees doing wiping
are subjected to the spray and are constantly "filthy."
Anthony Ray Pippen worked on the wiping job, became
ill, and was transferred out of the finishiiig"department,
as. were many other employees. I credit this testimony.
Westmoreland had originally been assigned brushing
work on her transfer to the finishing department. On Oc-
tober 24, a few days after distribution ' of her "open
letter" to employees, she was reassigned to a wiping job.
Westmoreland testified that she had a "rash on her left
arm prior to her transfer into the finishing. department.
She showed this condition to Supervisor Wanda Steen
and the company doctor, but was nonetheless , trans
ferred. The rash spread to - Westmoreland's` right arm
when she was doing brushing' work, and she started
wearing long-sleeve shirts. After Westmoreland's teas
signment to the wiping job on October 24, the rash
gradually spread over her body, and blood vessels began
bursting on her abdomen and side .. In November, 'as the:
spray "kept hitting [her] in the face," Westmoreland-de-'
veloped a sore throat and respiratory problems.' She had
difficulty breathing through her nose and 'developed
severe nose bleeds. Westmoreland tried to wear -a mask,
but could not breathe thrdugh 'One ' which`' was 'thick
enough to block the fumes.
In late November, Westmoreland saw 'her own doctor:
He'gave her a note'reading as follows-`"Miss' We§tmore-
land should be transferred froni-her present'pdsitioii be-'
cause exposure to finishing fumes _has- caused respiratory;
and skin problems"' (G'.C. Exh:. 4). A`"few' days later,
Westmoreland saw the company'doctOi. He,`gave"het" a'
note reading, "Le' has problems breathing"well.aroiind
paint fumes. She also finds it"difficult'to'Weir mask's Eto
filter these fumes. If possible, a transfer to another de
partment' should - help this `situation . May return' to 'work
Monday„ (G.C.-Exh : 4).28
c. Westmoreland's attempts to:get a, transfer
Westmoreland testified • that she first asked `Supervisor
Wanda Steen-for a reassignment `elsewhere in"th'e' depart-
ment . This took place in late" October after•,one of West
moreland's 'visits to the company doctor. ' Westmoreland
repeated the request, and then asked 'for atrans, fer out of
the finishing department. Steen replied'that'she"did'not
have authority to do this, although it was Steen who'liad'
transferred Westmoreland from the post, line,ipto the fin-
ishing department.
Steen acknowledged that Westmoreland asked for a
transfer but contended that -she did =note give- •a- health
condition as the reason: Instead; _Steeii _maintaihed' West
moreland', said': she,, had :woodworking uexperiencel and;
wanted' a transfer, to the mill;*, but 'there were; no..open
ings . This version of Westmoreland's -first-srequest'- is;,un-
likely.
Steen acknowledged .that .Westmoreland". complained ,of
a rash on her body: during the second request,' andfinally,;
admitted that Westmoreland, made-four- orfiv_e..requests
for transfer. However;-the supervisor; maintained she saw:
no evidence of a rash and Westmoreland did not show-
,28 Westmoreland made several visits-to ! the -company doctor, 'thisibeing'
the only one that was documented i. , - ^ t'rt
815
her, any: Steen conceded that Westmoreland showed her
notes- from the doctors. - • '
' Westmoreland affirmed that she "repeatedly" showed.
Steen her skin- condition,, beginning on October 10, when
she was first transferred into the finishing department.
Her left arm was then. "swollen and inflamed, from the
elbow down." When the rash spread to her body, West-
moreland showed Steen where it existed on her neck. I
credit' Westmoreland,,a more credible witness.
Westmoreland concluded that Steen was giving her
the "run-around," and began asking Personnel Director
George Null for a transfer in late November and all
through December. She was willing to take any job, in-
cluding cleaning . bathrooms. Null had' notes from the
doctors, and spoke to the company doctor over the
phone.. The personnel director -told Westmoreland that
there was no place to put her, and that she might. have
to goon medical leave. But Plant Manager Clark admit-
ted' that there were openings beginning at least as early as
mid-November. I credit Westmoreland's uncontradicted
testimony .1 ind Clark's admission:
Finally; 'Westmoreland went to Plant Manager Clark
on' January 4, 1984,?and'was given a temporary transfer
to the trim department. On January X13, Clark told West-
moreland that he wanted all of her' medical records from
her own-doctor,'who was being '"uncooperative." West-
moreland replied that 'she-would do so if Clark would.
give her a written statement setting forth the reason for
this request.;Clark dropped-the subject, and said that the
trim department was running out of work. Accordingly,
her was i thinking of transferring .Westmoreland back 'to
the ..finishing ; department.,' Westmoreland considered this
to -be a; threat, and, as indicated above, filed -the charge in
her. case- on ,January:-20, 1984. -She received a permanent
transfer out- of, the ,finishing; department,afterthe filing of
the,charge,•and is satisfied with her present job.,
d.; Transfers, in and`out of the finishing department
(1) 'Summaryof'the evidence'
?,).i'•t -°.Yl ."J':.. ..fit..
r- >.- ,
Plant Manager" Clark'testified that the Company has an
unwritten ; policy to transfer an employee if he has a.
reason, and if there -is, another opening, available ,to him.
Respondent contends that transfers in and out of. the fin-
ishing, department were made without regard for union
status, arid, that, ,Westmoreland was treated like the other.
employees.,".. .
Union activist Aletha Johnson was transferred out of
the finishing department for medical reasons, about July.
1:29 Wanda Newell ,' who wore , union , insignia according.
to Westmoreland, was transferred' out in' mid-July.30 An-'
thony, Ray Pippen, a union supporter, was transferred
ou
11,
t for medical reasons about 'August 1: However he
' ,did'not • fiave a'doctor 's`excuse.31
2B Testimony of Johnson and Anthony Ray Pippen The date is based
on a necessary inference drawn from Pippen's testimony This was con-
firmed by Johnson who said that she had been transferred out in July
before leaflets were distributed
so Testimony of Pippen
"I Testimony of Pippen Supervisor Steen said that Pippen wore union
insignia, but did not specify the beginning date
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Westmoreland, _ Geraldine Sims was
transferred from the finishing department -to a job in the
post line department at the same time that Westmoreland
was taken out of the post line department on October 10.
They simply switched jobs. Sims did not openly support
the Union, according to Westmoreland. The latter also
affirmed that other employees were transferred out after
complaining of the fumes and chemicals. Eugene Ramsey
was one of these. Robert Faith, who issued an "open
letter" to employees in November (Jt. Exh. 5), was trans-
ferred out only "recently" according to Westmoreland
-testifying on March 26, 1984.
Supervisor's Steen'stestimony is ambiguous. She first
identified employees who had requested transfers32 and
then named three who had received them-' Gena
Haynie, Marie Sharon, and Pippen. Steen did not know
the dates that Haynie and Sharon were transferred. Of
these three employees, only Pippen has been identified as
a union supporter, and his transfer, as indicated, took
place on August 1.
By inference, the other four employees identified by
Steen were not transferred out. Yet, Respondent has in-
troduced medical reports on these four employees dated
as indicated-Minnie P. Rush, February 3, 1984; Annie
Owens, February 9, 1984; Alice (Moulds) Cooley, Janu-
ary 31, 1984; and Lester Mitchell, February 1, 1984. All
the reports recommend transfer for medical reasons (R.
Exhs. 9-11). The parties stipulated that Rush and Mitch-
ell wore union insignia.
(2) Factual analysis
I conclude that union supporters Aletha Johnson;
Wanda Newell, and Anthony Ray Pippen were trans-
ferred out of the finishing department about July 1, July
15, and August 1, respectively. As indicated above,
Johnson believed that the earliest date the' Company sus-
pected her union affiliation was late July. There is no
evidence as to the date that Newell started wearing
union insignia. The earliest date shown by the record
that Pippen did so was in mid-October, when Supervisor
Allison told him that his family would go hungry if the
Union came in. As indicated, Steen was not specific on
the date Pippen started wearing union insignia.
Although Westmoreland testified that employees were
transferred in and out of the department during her
tenure there, the evidence of their union status is incon-
clusive. Therefore, for the period from about August 1
to about December 31, there were transfers in and out of
the department, • but the union affiliation of only one of
them is known-prounion employee Westmoreland was
transferred in,-and Sims, who did not openly support the
Union, was given- Westmoreland's job in the post line de-
partment. -
Steen's testimony and the medical reports introduced
by Respondent are too contradictory to warrant definite
findings. I infer from the dates on their medical reports
that, if Rush and Mitchell were transferred' out, this did
not take place until 1984 after litigation in this case had
begun. I make the same inference concerning the transfer
32 Annie Owens, Minnie Rush, Alice Moulds, Mane Sharon, Anthony
Pippen , Gena Haynie, and Lester Mitchell.
of Robert Faith. The evidence is inconclusive as to the
dates of transfer and union sympathies of the other em-
ployees in the record. -
e. Factual summary and conclusions
The credible evidence thus shows that Westmoreland
protested her initial transfer into- the finishing depart-
ment, and showed Supervisor Steen her skin rash. It is
also clear that employees in that department developed
medical problems. Nonetheless, Westmoreland was trans-
ferred into the department, and another employee, who
did not openly support the Union, was given Westmore-
land's job in the post line department. The record reveals
no business reason for this personnel action.
Westmoreland was first assigned to a brushing job.
However, a few days after she issued her "open letter"
to employees on October 19, she was transferred' to a
wiping job-the worst position in the department for-
maintenance of health. It was at that time that superviso-
ry comment about her work changed from praise to crit-
icism. -
Westmoreland's condition steadily worsened and
became more complicated. She gave at least one doctor's
report to Steen, but the latter refused to transfer her out,
saying that she had no authority. Since it was Steen who
originally - transferred Westmoreland into the finishing
department, this reason was obviously manufactured.
Westmoreland then sought the assistance of Personnel
Director Null in late November and December, but Null
contended that there was no job to which she could be
transferred. As employees were being transferred in and
out of the finishing department at that time, Null's state-
ment, like Steen's, was manufactured.
It was not until, January 4; 1984, that Westmoreland
received a temporary transfer to the trim department
from Plant Manager Clark. As described above, the first
complaint (in Case 15-CA-9159) had issued on Decem-
ber 31,.1983 Nonetheless, Clark later demanded all of
Westmoreland's medical records, and suggested the pos-
sibility that she would be transferred back to the finish-
ing department.
I conclude that Respondent refused to transfer West-
moreland out of the finishing department in the latter
part of 1983 because of her union activities and her lead-
ership role in the union campaign. Westmoreland was
treated differently from other employees, who did re-
ceive such transfers when she was in the department.
This disparate treatment suggests discriminatory motiva-
tion. Such an inference is strengthened (1) by the fact
that Respondent transferred Westmoreland to the worst
job in the department a few days after she issued an open
letter to employees-despite the fact that the Compaiiy
knew her condition and the health hazards involved in -
the reassignment-and (2) by the pretextual reasons
given her by Steen and Null for their failure to transfer
her.
Respondent has not established that Westmoreland was
treated like other employees, or that it followed a non-
discriminatory policy in granting transfers. The fact that
Aletha Johnson was granted a medical transfer about
July 1 does not constitute probative evidence on this
PILLIOD OF MISSISSIPPI, INC.
issue , since the union campaign had scarcely begun at
that time, and there is no evidence. that the Company
knew of Johnson's union affiliation until late July, at the
earliest . The same reasoning applies to the transfers of
prounion employees Wanda Newell and Anthony Ray
Pippen. The latter did not even need a doctor's report to
get a transfer for medical reasons.
The transfers of prounion'employees Rush and Mitch-
ell-if, indeed, they were transferred-probably took
place in February 1984 or later-after two complaints
against Respondent had already issued, and after West-
moreland had filed a charge alleging a discriminatory-
re-fusal to transfer her (G.C. Exh. 1 (p)). I reach the same
conclusion in the case of Robert Faith.
In these circumstances, any subsequent transfers of
prounion employees establishes nothing as to Respond-
ent's prior motivation during the union . campaign.
Rather , it suggests that Respondent was preparing for
the litigation that had already commenced. In any event,
the fact that an employer chooses not to discriminate
against some union adherents does not vitiate evidence
that it has discriminated against others. Ethyl Corp., 231
NLRB 431, 433 (1977).
I, therefore, find that the General Counsel has estab-
lished a prima facie case that Respondent discriminatori-
ly refused to transfer Westmoreland out of the finishing
department, such refusal beginning in the fourth week of
October 1983 and lasting until January 4, 1984, at which
time Westmoreland received a temporary transfer. After
the filing of the unfair labor practice charge, the transfer
was made permanent. Respondent has not rebutted this
case. Accordingly,'! conclude that by such refusal Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
NLRB v. Transportation Management Company, supra;
Wright Line, supra.
D. The Objections to the Election
1. The objections raising the same issues as the
complaints33.
My conclusions in the unfair labor practice case estab-
lish the merit of Petitioner's Objections 1, 6, 13, 14, 16,
17, and 29.
2. The separate objections34
a. Objections 8 and 9
(1) Summary of the evidence
Robert G. Johnson testified that he worked in the em-
bossing department and that his supervisor was Douglas
Skinner. Johnson -stated that about a week before the
election, Skinner took him into the office and told him
that -he was being sued for slander, because one of the
Union's leaflets made, opprobrious remarks about compa-
ny counsel. The next day Johnson received a handbill
saying that employees were not going to be sued.
Donald E. Tanner affirmed that, about a week before
the election, Supervisor Holloman told him that he was
'33 Supra, fn 2'
34 Supra, fn 3
817
being sued for a million dollars because of the Union's
slander of one of its supervisors. (Bob Bellipani). Hollo-
man did not say who was filing the complaint. On cross-
examination by company counsel, however, Tanner said
that his conversation with Holloman had nothing to do
with "your suing the Union." He had been told about
the lawsuit by his "supervisor," whom he did not name.
The next day, according to Tanner,•all employees re-
ceived a notice stating that Respondent was not suing
anybody (Jt. Exh. 57). Tanner attended a union meeting
in which he was told that Company counsel had filed' a
lawsuit against union officials, and that no employees
were involved. Plant -Manager Clark testified that two
employees told him that the Company was filing a law-
suit against the Union involving slander. Clark replied
that he knew nothing about it.
(2) Legal analysis
The Charging Party does not address this issue in its
brief, and there is nothing in the unfair labor practice
complaint about it. It is true that a threat to file a lawsuit
in connection with employees' exercise of their statutory
rights may be coercive and unlawful. Plumbers Local 81
(Morrison Construction), 237 NLRB 207, 210 (1978).
However, the evidence in this case is too ambiguous to
warrant a finding that Respondent made an unlawful
threat to sue employees, or filed such a lawsuit. Neither
Skinner, who spoke to Johnson, nor the unknown "su-
pervisor" who spoke to Tanner, identified the plaintiff in
the lawsuit. Tanner heard at a union meeting that com-
pany counsel was suing only union officials, but not em-
ployees, for defamation. The Company itself promptly
issued a disclaimer stating' that it was not suing anybody.
Although an attorney is normally held to be an agent-of
his principal, in this case Respondent quickly informed
the employees that it had nothing to do with the matter.
Accordingly, I shall recommend that Objections 8 and 9
be overruled. -
. b..Objecti6n 11
Plant Manager Clark stated that he normally had one
guard per shift at-the plant. However, on election day, .
he had four members of the Meridian Police Department
stationed at various locations, and some uniformed secu-
rity guards in the parking lot. The members of the police
department wore plain clothes, and each was armed- with
a handgun, which, he said, was,concealed beneath his
jacket., Anthony Ray Pippen and Larry Dixon said that
they saw guards with guns, but it is unclear whether
they were referring to -the plain clothes policemen onto
the security guards.
Some of the policemen were known to members of the
community. They testified in -general that they had been
instructed to, keep unauthorized people, out of the plant
and to, watch for possible violence. There is no evidence
that they spoke to. any of the employees.
Objection 11 alleges that the Employer posted armed
guards to give the employees the impression that they
needed protection from violence. In its brief, Petitioner
argues that the guards created an impression of surveil-
lance of the employees, citing Woodland Molded Plastics
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corp., 250-NLRB 169 (1980). In that case,-an employer
watched union organizers distributing' union literature to
employees, .and engaging them in. conversation.' The
Board in a split decision held that the employer had de=
stroyed the laboratory- conditions necessary for the 'con-
duct of a free election. - The Charging . Party' argues 'that
the Employer herein - merely substituted the guards to
engage in the surveillance.
. I disagree. Watching a line of voters proceeding to the
ballot box is not the 'same as watching union • organizers
trying to persuade employees of merits of the: Union's
cause. In the latter case, an employee might -well feel
that excessive conversation with an organizer could
bring . him into disfavor with, the employer. " A voter
standing in line , however, is innocuous, and displays
nothing to indicate his intentions,, absent the wearing of
something to show his preference. He might well intend
to vote against the union. Although Respondent did
inject the fear of union violence in its-campaign, there is
nothing in the record. to show. that the presence of addi-
tional guards created an impression among employees on
the day of the election that they needed protection. from
violence. .
Accordingly, I shall, recommend that Objection 11 be,
overruled.,
C. Objection 12, "
Although the Company did . allow:: members t of the
Loyal Employees Committee to hold meetings while still
being "on the clock , this was merely part of • its: dis=
criminatory enforcement • of the , no-solicitation rule,
rather than a "favor" granted, for. joining the committees
Accordingly , I shall recommend that Objection : .12• be
overruled.
d. Objection 18
There is no copy in ' the record of a letter'fromt Re=
spondent dated November 4; the ' day of -the election,"and
Petitioner does not argue this objection-in-its brief."Ad-1
cordingly , I shall recommend that the objection; be over-
ruled.
e. Objection 22
Anthony Ray Pippen testified without contradiction
that he saw Supervisor Rob Allison, walking, down a
hallway containing a line of voters. Allison told voters: to
be quiet" and otherwise talked to them Pippen also saw
Supervisor . Bob Slagle in • the area talking to some of the
people." Slagle admitted , being present; but denied talk-
ing "to , voters . I 'credit Pigpen .. Autrey. Bailey` and other: IF-
supervisors
11
were present . Some-: of them , were - talking; t
the night-shift employees, who were ,coming , in'..to vote.
One of the supervisors was "shoulder to -shoulder;, with
the voters inI the line . Larry Dixon identified •;Ray:Eggert
and Don ' McWhirt as two supervisors coming inr and out
of the hallway where the voters were, lined,up. , a`
Le' Westmoreland affirnted` that Sper-visor; Bill'Voelz
was standing alongside a line of voters for over an, hour,
and was talking to them . • Westmoreland could not hear
what Voelz said . Voelz denied being in the area : -I credit
Westmoreland . Supervisor ' Jewell admitted talking to
employees 'waitiiig'in line to vote. Jewell contended that
he only -engaged in idle conversation about football and
other subjects, but did not mention the Union.
'I conclude that ' several of Respondent's 'supervisors
were, present alongside a line of voters ;waiting to'vote,
at least one of them more than an hour. All of the super-
visors' engaged in conversation with' the voters, and one
of them told voters to "be quiet."
f. Legal analysis
• I find that because Respondent threatened employees
with plant closure or removal, and with loss of fobs- and
benefits in the event of a ,union victory, and engaged in
the other coercive conduct described above, it thereby
interfered with the conduct of a free election. A. J.
Schmidt Co., 265 NLRB 1646 (1982). The total content
of the speeches by Clark and Bailey, buttressed by the
handouts 'and 'posters=particularly the red line poster-
went beyond-the bounds of permissible campaign speech.
"The Employer's "numerous - references to strikes, vio-
lence loss of "jobs,; and ` loss of- benefits amounted to
veiled threats' and 'created 'an atmosphere of fear. In the
context' of"these' speoific'threats, the Employer's repeated
statements associating the Petitioner with strikes, plant
closures and job ' lo`ss' had a coercive impact on the em-
ployees" General Dynamics Corp., 250 NLRB 719, 722
• '(1980).
'This 'concliision-is' further warranted by the fact that
Respondent's supervisors engaged in conversation with
employees waiting in line to vote, at least one of the con-
versations being prolonged in nature. I conclude that
these conversations were neither, chance, isolated, nor in-
nocuous. Assuming arguendo that Supervisor Jewell
11
only talked about baseball, the fact that other supervisors
talked to the employees waiting to vote, constituted un-
warranted interference with. the, conduct of the election.
Antenna Department West, 266 `NLRB 909 (1 -983); ,M il-
chern, Inc.,',170NLRB, 362 (1968). The fact that one of
the supervisors told `employees to be,q_uiet may have cre-
ated,-the impression that Respondent had control over
the -conduct of the election. Bio-Medical Applications of
Puerto Rico,, 269 NLRB 827,.829-839 (1984).
.,:Accordingly„ I_ shall recommend that the election be
set aside, and that a second election be held.35
In;accordance;with;my findings aboye,.I make the fol-
lowing,
1CONCLUSIONS;OF LAW,°I,
1. Pilliod of l fississipp.i,.Inc .is'an employer engaged in
eominerce° within the meaning of'Sectio'n'2(6)' and (7) of
the {Act
'2.'united Furniture'Workers of America,'AFL-CIO is
a labor organization within the' meaning of 'Section 2(5)
of-the Act. - ' *_ ' ' ' - ' •
35 The General' Counsel does not request a bargaining order, nor
would one be appropna_te ln.,the absence of evidence that the Union had
majority status at any relevant time. Gourmet Foods, , 270 NLRB 578
(1984) r, ,.. s ,
PILLIOD OF MISSISSIPPI, INC.
3. By engaging in the following conduct, Respondent
committed unfair labor practices in violation of Section
8(a)(1)' of the Act:
(a) Telling employees that the Company would close
the plant down, "tape it up," or remove it before the
Company would think of having a union in the plant.
(b) Telling employees that they would get reprimands,
indefinite layoffs, or be discharged if they were caught
distributing union material in the plant or placing union
stickers on anything.
(c) Telling employees that there would be a strike if
the Union won, and that employees' families would go
hungry.
(d) Telling employees that they would be fired for
signing union authorization cards.
(e) Telling an employee that he would be fired if it got
around that he had given information to an agent of the
Board.
(f) Asking an employee how he felt about the Union.
(g) Telling an employee that he would not have a job
unless he stopped associating with a union official.
(h) Asking an employee how many people on the as-
sembly line were actually voting for the Union.
(i) Telling a union supporter that she was hanging
around with the wrong crowd.
0) Telling an employee that that "damn Union is
going to get you fired."
(k) Telling an employee that he was supposed to get a
raise in December if the Union, did not come into the
plant.
(1) Telling employees that the Company would begin
negotiating "at ground zero" or at minimum level wages,
and that the employees might lose their benefits if the
Union came in.
(m) Telling a union adherent that he had better watch
himself.
(n) Telling an employee that he had better take off a
union shirt and put on another one because the supervi-
sor did not want to see the employee get into trouble.
(o) Discriminatorily promulgating and maintaining a
no-solicitation/distribution rule.
(p) Putting up a poster which' threatened employees
with loss of their jobs.
(q) Denigrating the Union by saying that it was re-
sponsible for the employees ' having to purchase safety
shoes.
(r) Conducting a campaign which, with its speeches,
leaflets, and posters, emphasized the inevitability of
strikes and threatened the loss of jobs and plant closure.
4. By engaging in the following conduct , Respondent
violated Section 8(a)(3) and (1) of the.Act:
(a) Discharging employee Aletha Johnson on October
10, 1983, because of her union activities and sympathies
and in purported enforcement ,of a no-solicitation/-
distribution rule which Respondent discriminatorily pro-
mulgated and maintained.
(b) Discharging employee James White on October 19,
1983, because of his union activities and sympathies.
(c) On October 21, 1983, warning employee Donald E.
Tanner that because of his violation of a no-soli-
citation/distribution rule, further violation' would result
819
in termination , where the Company discriminatorily pro-
mulgated and enforced such rule.
(d) Refusing to transfer employee' Le' Westmoreland
out of the finishing department for medical reasons from
about October 23, 1983, to about January 4, 1984, be-
cause of her union activities and sympathies.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. Respondent has not violated the Act except as
herein specified.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices , it is recommended that it
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the purposes of
the Act. Because of the wide-ranging and pervasive
nature of Respondent 's unfair labor practices, and the in-
tensity of its opposition to the rights of its employees
protected by the Act, I shall recommend a broad cease-
and-desist order.
It having been found that Respondent discriminatorily
discharged employee Aletha Johnson on' October 10,
1983, and employee James White on October 19, 1983, it
is recommended that. Respondent be ordered to offer
each of them immediate and full reinstatement to his or
her former position or, if such position no longer exists,
to a substantially equivalent position without prejudice to
his or her seniority or other rights and privileges, . dis-
missing , if necessary , any employee hired to fill said posi-
tion , and to make each of them whole for any loss of
earnings he or she may have suffered by reason of Re-
spondent 's unlawful conduct, by paying each of them a
sum of money equal to the amount he or she would have
earned from the date of his or her unlawful discharge to
the date of an offer of reinstatement, less net earnings
during such period , with interest thereon to be computed
in the manner established by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977).36 It will also be recommended
that Respondent expunge from its personnel records all
references to their unlawful discharges , and notify them
in writing that such action has been taken and that evi-
dence of such action will not be used as a basis for future
personnel ' actions against them.
It having been found that Respondent , on October 21,
1983, unlawfully gave employee Donald E. Tanner a
written warning for - violating ' a" no-solicitation/-
distribution rule, stating that he would be discharged in
the event of another violation , it will ' be recommended
that 'Respondent expunge from its personnel records all
references to such warning , and notify Tanner in writing
that such action has been taken and that evidence of the
warning will not be used as a basis for future personnel
action against him.
It having , been found that Respondent discriminatorily
refused to transfer Le' Westmoreland out of the finishing
department from about October 23, 1983, to about Janu-
96 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
820 - DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
ary 4, 1984, Respondent should be ordered not to trans- utable , to its unlawful refusal to transfer her. Such
fer her back to that department . The General Counsel remedy is within the Board 's authority to frame appro-
further. requests , that Respondent . be ordered to compen - priate remedies, and is appropriate in this case.
sate Westmoreland , for all of her medical expenses . attrib- [Recommended Order omitted from publication.]
" t
'. ^?ii.tJ^ ' ,'•i