Pottsville Bleaching Co.

National Labor Relations Board - Board Decisions

May 31, 1991

303 N.L.R.B. 186 (N.L.R.B. 1991)

186
303 NLRB No. 25
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing the findings.
The Respondent has also excepted to the judge’s statement that it conceded
that, per its policy, employee Sullivan, when he was assigned unloading work
on January 29, 1988—a task not part of his ordinary job duties—had a choice
of either performing the task or going home without incurring any discipline.
In this regard, we note that, although record evidence establishes the accuracy
of the judge’s finding that the Respondent did indeed maintain the above-de-
scribed policy, record evidence does not establish that the Respondent con-
ceded this to be the case. Therefore, in adopting the judge’s finding that em-
ployee Sullivan was unlawfully discharged, we do not rely on the judge’s find-
ing that the Respondent conceded maintaining such a policy.
Member Oviatt observes that if a contrary policy existed and was applicable,
it was not clearly communicated to Sullivan immediately preceding his refusal
to do the unloading job. Thus, Member Oviatt would find that responsibility
for an employee’s misunderstanding lies with the Respondent.
Member Cracraft dissents from her colleagues’ finding that Supervisor
Hossler’s statement to Thomas violated Sec. 8(a)(1). At the hearing, the Re-
spondent objected when the General Counsel elicited testimony regarding the
Thomas/Hossler conversation. The basis for the objection was that the testi-
mony covered a matter which had been the subject of a dismissed unfair labor
practice charge. The General Counsel responded that the testimony was not
being offered in support of an alleged violation, but was being offered merely
to show ‘‘the completion of the conversation.’’ On being questioned by the
judge, the General Counsel reiterated that the testimony was offered for back-
ground purposes only. In light of these representations by the General Counsel,
Member Cracraft finds that the judge erred in proceeding to consider the testi-
mony as evidence of a violation. Although the Respondent cross-examined
Thomas and questioned Hossler regarding the conversation, the Respondent
did not have sufficient notice of any alleged violation due to the General
Counsel’s representations. See, e.g., Eltec Corp., 286 NLRB 890, 897 (1987)
(General Counsel’s disavowal of intent to litigate specific allegations grounds
for reversing judge’s finding of violations on that basis), enfd. 870 F.2d 1112
(6th Cir. 1989). See generally Redway Carriers, 274 NLRB 1359, 1369–1370
(1985) (alleged unlawful assistance of UTA not fairly litigated due to General
Counsel’s untimely notice). In these circumstances, Member Cracraft would
find that due-process requirements have not been satisfied. 2 There is no further description of what that charge involved.
Pottsville Bleaching and Dyeing Company and
Teamsters Union Local No. 115 affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Cases 4–CA–17211, 4–CA–
17211–2, and 4–RC–15816
May 31, 1991
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On June 26, 1990, Administrative Law Judge Karl
H. Buschmann issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in response to the
Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
We affirm the judge’s finding that Supervisor
Hossler’s statement to employee Thomas violated Sec-
tion 8(a)(1). The relevant facts are as follows. Some-
time in March 1988, Supervisor Hossler approached
Thomas, a part-time employee, at work and asked
whether he had any questions about the Respondent’s
pamphlet concerning the Union. Thomas asked Hossler
about benefits and working hours for part-time em-
ployees. He specifically asked Hossler why Griesbaum,
a fellow part-time employee, was out of work. After
Hossler told Thomas the decision was made by the su-
pervisor on the finishing floor, Thomas stated, ‘‘I get
the impression Mike is out of work because he is a
Union sympathizer.’’ Hossler responded, ‘‘To tell you
the truth, that is the impression I get.’’
The complaint alleges that ‘‘[i]n or about early
March 1988, a more precise date being presently un-
known to the General Counsel, the Respondent, acting
through Bill Hossler, at the Port Carbon plant, threat-
ened to decrease the working hours of employees who
supported the Union.’’ Record evidence indicates that
at hearing, prior to the General Counsel’s examination
of Thomas on this matter and following Thomas’ state-
ment that he asked Hossler about Griesbaum’s being
out of work, an exchange took place between the Gen-
eral Counsel and the Respondent wherein the Respond-
ent objected to testimony on ‘‘this subject’’ because
‘‘it was the subject of an unfair labor practice charge
which was dismissed by the General Counsel.’’2 In re-
sponse, the General Counsel stated that, ‘‘it [was] not
alleged as a violation’’ and ‘‘it is merely to show the
completion of the conversation. This was brought up
during the conversation.’’ The judge overruled the ob-
jection and subsequently the Respondent cross-exam-
ined Thomas and indeed elicited testimony from its
witness, Hossler, concerning the conversation with
Hossler.
Although the Respondent in essence contends in its
exceptions that it did not have sufficient notice of any
alleged violation due to the General Counsel’s rep-
resentations at the hearing, we conclude that the judge
appropriately found that the Respondent violated Sec-
tion 8(a)(1) by engaging in the conduct set forth
above. In this regard, we note initially that the com-
plaint allegation provided the Respondent with notice
of an alleged violation concerning a threat made by
Supervisor Hossler to decrease the working hours of
employees who supported the Union. In addition, we
note that the point of the colloquy between the General
Counsel and the Respondent at the hearing is simply
unclear. In light of the ambiguous nature of this ex-
change, we are not satisfied that the General Counsel
indicated that she did not intend to pursue a matter
which is clearly alleged in the complaint as a violation.
In these circumstances we think it was incumbent on
the Respondent’s counsel to seek clarification at the
hearing of just what the General Counsel meant when
187POTTSVILLE BLEACHING CO.
1 The unopposed motion by the General Counsel to correct the transcript is
granted.
2 The briefs were thorough and well written.
3 The election held on March 8, 1985, in that case was voided because of
an unfair labor practice case against Pottsville Bleaching that ultimately re-
sulted in an order to cease and desist. Pottsville Bleaching Co., 277 NLRB
988 (1985).
she stated that ‘‘[i]t’’ was not alleged as a violation.
This the Respondent’s counsel did not do. We further
note that the Respondent’s claim that it did not have
adequate notice of an alleged violation is belied by its
conduct at the hearing in both cross-examination
Thomas and interrogating its witness, Hossler, con-
cerning his conversation with Thomas. Finally, we find
that cases relied on by our dissenting colleague, Eltec
Corp., 286 NLRB 890, 897 (1987), enfd. 870 F.2d
1112 (6th Cir. 1989), and Redway Carriers, 274
NLRB 1359, 1369–1370 (1985), in apposite as these
cases, unlike the instant case, involve, respectively, ei-
ther a clear disavowal on the part of the General Coun-
sel of intent to litigate a particular matter not alleged
in a complaint or untimely notice of the General Coun-
sel’s intent to litigate a particular allegation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pottsville Bleaching and
Dyeing Company, Port Carbon, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
IT IS FURTHER ORDERED that the election held on
April 22 and 23, 1988, in Case 4–RC–15816 is set
aside and that this case is severed and remanded to the
Regional Director for Region 4 for the purpose of con-
ducting a new election.
[Direction of Second Election omitted from publica-
tion.]
Margarita Navarro-Rivera, Esq., for the General Counsel.
Stephen V. Yarnell, Esq. and Barry R. Elson, Esq. (Cohen,
Shapiro, Polisher, Shiekman & Cohen), of Philadelphia,
Pennsylvania, for the Respondent.
Norton H. Brainard III, Esq., of Philadelphia, Pennsylvania,
for the Union.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. These
cases were tried on May 3, 4, and 5 and June 20, 1989, in
Pottsville, Pennsylvania, based on a consolidated complaint
in Cases 4–CA–17211 and 4–CA–17211–2, dated December
30, 1988. The charges were filed by Teamsters Union Local
No. 115 affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO (Teamsters Local 115). The consolidated com-
plaint alleges, in substance, that the Respondent, Pottsville
Bleaching and Dyeing Company (Pottsville Bleaching), vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act) by threatening and coercing its employees and
by discharging Joseph Z. Sullivan because of his union ac-
tivities.
The Union’s objections, filed on April 29, 1988, to con-
duct affecting the result of the election held on April 23
1988, in Case 4–RC–15816, were consolidated by an order,
dated March 17, 1989, with the unfair labor practice com-
plaints, because they present common issues of fact.
The Respondent’s answer to the consolidated complaint
admitted the jurisdictional allegations in the complaint and
denied that the Company had engaged in unfair labor prac-
tices.
Pursuant to a motion by the General Counsel, the consoli-
dated complaints were amended to include an allegation of
violation of Section 8(a)(1) of the Act for the Respondent’s
failure to give certain assurances to employees during inter-
views conducted by the Respondent’s attorney.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs2
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Pottsville Bleaching and Dyeing Com-
pany, is a Pennsylvania corporation engaged in the bleaching
and dyeing of tubular fabrics at its plant in Port Carbon,
Pennsylvania. With revenues in excess of $50,000 for serv-
ices performed on the goods of customers located outside the
State of Pennsylvania, the Respondent is admittedly an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Its approximately 195 produc-
tion and maintenance employees are supervised by a hier-
archy of managers and supervisors, including, Charles J.
McBennett, plant manager; Richard Underwood, finishing
department manager; Gary O’Hara, employee relations man-
ager; as well as Supervisors Robert Petrozino, Eugene
Kalyan, James Walsh, John Novak, and William Hossler.
John Lewis Miller Jr., the chairman of the board and presi-
dent of the Miller Group, a holding company for Pottsville
Bleaching and Dyeing, testified as the chief executive of the
Respondent.
The Union, Teamsters Union Local No. 115, affiliated
with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO is admit-
tedly a labor organization within the meaning of Section 2(5)
of the Act.
II. FACTS
Teamsters Local 115 has attempted to organize the Com-
pany’s production and maintenance employees on at least
five prior occasions. The most recent election was held on
April 22 and 23, 1988, pursuant to a Stipulated Election
Agreement of April 1, 1988, resulting from a petition filed
on January 16, 1985, in Case 4–RC–15816.3 With a tally of
votes of 123 to 66 against the Union, the 7 challenged bal-
lots were held insufficient to affect the outcome of the elec-
tion. However, the Union filed objections to conduct affect-
ing the results of the election. Two of the objections were
consolidated for hearing with the allegations in the unfair
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Pottsville Bleaching Co., 275 NLRB 1236 (1985), enfd. mem. 800 F.2d
1136 (3d Cir. 1986).
5 Pottsville Bleaching Co., 283 NLRB 359 (1987).
6 Walsh testified that he did not recall any conversation with Powell or any
other employee about a union hat, and that he has never spoken to any em-
ployee about the Union (Tr. 694–695). Walsh’s testimony in this regard as
demonstrated by his demeanor was not credible.
7 The General Counsel’s examination of Thomas as a witness was preceded
by the following exchange (Tr. 301):
Q. Did you say—do you recall saying anything else to Mr. Hossler?
A. Yes. I asked him about Mike Griesbaum being out of work at the
present time when he should have been in.
Q. Did Mr. Hossler respond at all?
MR. ELSON: I would object to testimony on this subject. This subject
was the subject of an unfair labor practice charge which was dismissed
by the General Counsel. It is not the subject of this litigation.
MS. NAVARRO-RIVERA: It is not alleged as a violation Your Honor. It
is merely to show the completion of the conversation. This was brought
up during the conversation.
MR. ELSON: This is an unfair labor practice charge dismissed.
JUDGE BUSCHMANN: Is it for background purposes?
MS. NAVARRO-RIVERA: Yes, Your Honor, I just want to show the ac-
tual conversation that took place.
JUDGE BUSCHMANN: All right. Objection overruled.
This exchange between counsel appeared confusing and apparently relates to
a charge that was dismissed by the Regional Director. The complaint, how-
ever, clearly contains an allegation of 8(a)(1) misconduct on this issue. The
record shows that the Respondent interrogated his witness, Hossler, about this
conversation with Thomas in March 1988. Accordingly I considered the evi-
dence of the conversation, not only for background purposes but in support
of the allegation in the complaint.
labor practice complaints on the basis that they presented
common issues of fact (G.C. Exh. 1(g)).
Joseph Sullivan, an employee at Pottsville Bleaching since
August 1965 has actively campaigned in all the Union’s re-
peated attempts to organize the employees. The Company
discharged Sullivan in May 1984 because of his union activi-
ties. He was reinstated with backpay in September 1986 pur-
suant to an order of the National Labor Relations Board.4
Thereafter, Pottsville Bleaching engaged in additional mis-
conduct involving unfair labor practices.5
In 1988 Sullivan was again a conspicuous union activist
and engaged in such union activities as passing out union lit-
erature and soliciting fellow employees for the Union. He
regularly wore a jacket and a hat displaying union insignia.
He was also on the Union’s in-plant committee.
The alleged unfair labor practices in this case occurred
during the latest efforts of Teamsters Local 115 to organize
the employees in 1988.
A. Alleged Threats
The consolidated complaint alleges that Supervisors
Walsh, Hossler, and Underwood threatened employees at
various times prior to the union election on April 23, 1988.
Employee William Powell testified about an episode in 1988
prior to the election when he was on his way to a company
meeting concerning the production of bleach. He recalled
that he had been wearing a union hat that day, and when he
entered the doorway, Supervisor James Walsh said to him:
‘‘I suggest that you take the Union hat off if you plan to
keep your happy home’’ (Tr. 295). Powell took off his hat
before entering the meeting and put it back on as he left the
meeting. Employee Earl Thomas testified that he overheard
the conversation between Powell and Walsh and that it oc-
curred in January or February 1988.
I credit the firm and consistent testimony of employees
Powell and Thomas and find that Supervisor Walsh had
made these threats despite his testimony to the contrary (Tr.
694).6 The law is clear, Section 7 of the Act protects the
rights of employees to wear union insignia while at work ab-
sent special circumstances. Supervisor Walsh not only inter-
fered with that right but threatened the employee with ad-
verse consequences or unspecified reprisals unless he re-
moved his union hat. Because the record does not show that
special circumstances required the supervisor’s order, it is
clear that the Respondent violated Section 8(a)(1) of the Act
as alleged in the complaint.
The next allegation in the complaint concerns a statement
made by Supervisor Hossler sometime in March 1988. Earl
Thomas, a part-time employee at Pottsville Bleaching, testi-
fied that Hossler approached him at his work station and
asked whether he had any comments about the Company’s
pamphlet concerning the Union. Thomas responded with a
few questions about the benefits and working hours for part-
time employees. He specifically questioned Hossler why
Mike Griesbaum, a part-time employee, was out of work.
When Hossler replied that this decision was made by the su-
pervisor on the finishing floor, Thomas said: ‘‘I get the im-
pression that Mike is out of work because he is a Union
sympathizer.’’ Hossler said to him, ‘‘to tell you the truth that
is the impression I get.’’ (Tr. 302.)
Hossler recalled this conversation in his testimony, but he
stated that he said the following (Tr. 748):
They asked me if it was true, Mike wasn’t being
called into work because he was a union supporter and
I said I don’t know anything about that.
I credit Thomas’ clear and convincing testimony, particu-
larly because his testimony, unlike that of Hossler, was given
against his self-interest. In agreement with the General Coun-
sel, I therefore find that the Respondent violated Section
8(a)(1) of the Act. A supervisor’s statement to an employee
that a fellow employee’s union activities resulted in adverse
consequences or reprisals is a threat designed to interfere
with the employee’s Section 7 rights.7
The next allegation in the complaint challenges as unlaw-
ful several statements made by the manager of the finishing
department, Richard Underwood, during the conversation
with Michael Griesbaum, a part-time employee in the finish-
ing department. Griesbaum was a union activist during the
organizational efforts of Teamsters Local 115. He served on
the Union’s in-house committee, passed out union pamphlets,
solicited for the Union among his fellow employees, and
wore a union hat and a union jacket.
Griesbaum testified that Underwood approached him at his
work station in late August or early September. Griesbaum
had talked to some of the employees and Underwood called
him a troublemaker and said that he had a bad attitude.
Griesbaum recalled this episode as follows (Tr. 275):
He started right after last break at 7:00 in the morn-
ing an I was on the late shift and I guess I was talking
with a bunch of employees in the cafeteria in our lunch
room and right after that I was at my machine and Mr.
Underwood came down and he was upset about me
talking to other employees about four three shifts and
I just told him it was my own opinion and let it go at
that. Later on at the end of the shift it was approxi-
189POTTSVILLE BLEACHING CO.
8 Pottsville Bleaching Co., 275 NLRB 1236 (1985), enfd. mem. 800 F.2d
1136 (1986).
9 It is possible, the record is not clear on this point, that Petrozino may have
told the employees that Kalyan had changed his mind and wanted them to un-
load the trucks.
mately 25 minutes of 11 he come down and said he
wanted to see me in his office. When I got there he had
told me that some of the employees that I guess were
in the lunch room at that time they didn’t want to be
around me and he said that I had a bad attitude and that
I was a trouble maker.
Sometime later, about 2 weeks before Christmas 1987,
Griesbaum had another conversation with Underwood when
he referred again to Griesbaum’s attitude. Griesbaum de-
scribed this incident as follows (Tr. 276):
I guess it was about two weeks before Christmas in
’87. I had kind of clammed up because I really didn’t
trust too many people around me so I just talked to
close friends and stuff like that and I got called into the
office. It was near the end of the shift again it was
around 20 of 11 I was working late shift and he had
said that he had seen a change in my attitude and he
had discussed possible job openings on the down dryer
like after Christmas sometime and he wanted to know
if my attitude was going to stay the same and I just told
him that personally I didn’t think it was my attitude at
all.
Griesbaum told Underwood during that conversation that
he got involved with the Union because he felt that his rights
were abused and because he could not obtain full-time work
with the Respondent.
About February 2, 1988, Griesbaum learned that employ-
ees with less seniority than he were working while he was
laid off. He testified that he went to the finishing department
and requested a grievance form. John Novak, second-shift
supervisor, told him to call Underwood. When Underwood
appeared, he immediately asked Griesbaum ‘‘what is your
beef now’’ (Tr. 278). When Griesbaum explained that he
should have been called in to work because he had more se-
niority than other employees who were working, Underwood
replied that ‘‘he could put whoever he wanted in there.’’
Griesbaum finally requested a grievance form and a claim
sheet. Underwood however refused to provide him with the
forms that, according to Respondent’s handbook, must be
provided a supervisor (G.C. Exh. 2).
Underwood’s testimony about these conversations dealt
mainly with his opinion of Griesbaum’s poor attitude to-
wards his job. Underwood did not recall whether he refused
to provide Griesbaum with the grievance forms, but con-
ceded that he knew about Griesbaum’s union involvement.
The General Counsel argues that the Respondent violated
Section 8(a)(1) of the Act by referring to Griesbaum as a
troublemaker because such a reference is usually designed to
intimidate union activists. The General Counsel also regards
Underwood’s comment violative of the Act when he prom-
ised Griesbaum full-time work if his attitude would ‘‘stay the
way it was.’’ The General Counsel further argues that Re-
spondent’s refusal to provide Griesbaum with the grievance
forms constitutes a violation of Section 8(a)(1) of the Act,
as a form of coercion resulting from his union activity.
To be sure, Underwood’s reference to Griesbaum as a
troublemaker was also directed at his conversations with the
employees about the ‘‘4/3 shift.’’ As Underwood testified,
‘‘there was a few of the weekend employees who were a lit-
tle irritated that they thought the company was going to in-
stall a 4/3 shift, which would in fact eliminate weekend em-
ployees and you know they were upset’’ (Tr. 790). However,
the record shows that Griesbaum’s union activity included
‘‘talking to people all the time constantly’’ (Tr. 274). Under-
wood had observed Griesbaum’s changed attitude prior to
Christmas 1987 because he ‘‘had kind of clammed up’’ and
talked only to close friends. Underwood discussed possible
job openings if Griesbaum’s ‘‘attitude was going to stay the
same’’ (Tr. 276).
The term ‘‘troublemaker’’ has an established meaning in
connection with employees’ union or concerted activities;
equating an employee who engaged in union activities with
being a troublemaker constitutes a violation of Section
8(a)(1) of the Act. Monfort of Colorado, 298 NLRB 73
(1990); Champion Road Machinery, 264 NLRB 927, 929
(1982); Perth Amboy Hospital, 279 NLRB 52 fn. 2 (1986).
Moreover, the Respondent’s threat that Griesbaum’s attitude,
namely, his union talk, precluded his consideration for full-
time employment is a violation of Section 8(a)(1), as well as
Underwood’s refusal to provide Griesbaum with a problem-
solving forum.
B. The Discharge of Joseph Sullivan
Following his reinstatement pursuant to a Board order, Jo-
seph Sullivan, a prominent union activist and a 19-year vet-
eran in Respondent’s employ, was discharged on January 29,
1988, for what the Respondent characterized as gross insub-
ordination. This was Sullivan’s second discharge since his
employment at the Port Carbon plant on August 16, 1965,
as a tub operator in the dye house. His first discharge oc-
curred on May 18, 1984, when the Respondent accused him
of acts8 of insubordination. The real reason for his discharge,
as found by the Board and affirmed by the Third Circuit,
was Sullivan’s role ‘‘as one of the most active employees’’
in the union campaign. Sullivan participated in all five or six
union campaigns at the plant between 1982 and 1988. After
his reinstatement in September 1986, he worked in the fin-
ishing department under the supervision of Eugene Kalyan.
He continued his union activity, and as ‘‘a member of the
in plant committee [he] solicited and signed up employees
for the Union, handed out literature outside the plant, talked
to employees concerning the Union’’ (Tr. 63). He regularly
wore a jacket and a hat with union insignia until his dis-
charge. He was observed by members of management as he
passed out union literature and was regarded by management
as a union activist (Tr. 63–67).
Shortly after 10 a.m. on January 29, 1988, while Sullivan
was working at his machine, supervisory trainee, Robert
Petrozino, told Sullivan and other employees that the ma-
chines were going to shut down, and that they should clean
up around the machines. Shortly thereafter Kalyan appeared
and instructed Sullivan and other employees to go out and
unload trucks.9 Several employees complied, one went to the
bathroom, and Sullivan replied that he did not want to go out
to unload trucks because it was too cold at the loading dock.
At that point Kalyan said, ‘‘either do the job or go the fuck
home’’ (Tr. 68). Sullivan then demanded a grievance form,
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 According to the record, Kalyan had a reputation for his constant use of
the obscene four-letter word. Accordingly, I do not credit his version of the
episode where he attributes the use of that word to Sullivan rather than to him-
self, and where he claimed to have repeated his order several times.
11 As shown in two prior cases, Pottsville Bleaching Co., 275 NLRB 1236
(1985), involving the unlawful discharge of Joseph Sullivan, and Pottsville
Bleaching Co., 283 NLRB 359 (1987), dealing with the unlawful discharge of
Ronald Downey.
and Kalyan told him again ‘‘go the fuck home.’’ Sullivan fi-
nally obtained a grievance form from Supervisor Underwood;
completed it and handed it to Kalyan. Kalyan told him again
to get out and Sullivan left the plant about 11 a.m. after
punching out.10 Sullivan contacted the office in the afternoon
and spoke to Underwood who told him not to return to work
until he was called. On February 1, 1988, Gary O’Hara, Re-
spondent’s employee relations manager, requested Sullivan to
report to the office of Charles McBennett, the plant manager,
on the following day. During that meeting, Sullivan was
asked about his version of the incident and was informed that
the Company would investigate the matter further. On Feb-
ruary 3, 1988, O’Hara directed Sullivan to attend a meeting
about 2 p.m. attended by McBennett and O’Hara. There
McBennett read from a prepared statement informing Sulli-
van that he was guilty of gross insubordination and that he
was discharged (Tr. 74). Sullivan, expressing his incredulity
about the Company’s decision, stated that he intended to file
a grievance pursuant to the fourth step of the Company’s
grievance procedure known as the 4/3 committee or the prob-
lem-solving committee. The committee, comprising three em-
ployees and four representatives of management, met on Feb-
ruary 19. Sullivan conceded at the meeting that he refused
to follow his supervisor’s instructions, but he explained that
he had a cold and did not want to be exposed to the severe
cold in the dock area. He also said that other employees who
received similar instructions and failed to abide by them
were not discharged. Nevertheless, by a vote of four to three
the committee upheld the discharge.
The General Counsel submits that Respondent’s proven
hostility towards the union activists11 resulted in Sullivan’s
discharge and that Sullivan, in the absence of his union ac-
tivity, would not have lost his job because he refused to per-
form the assigned work.
The Respondent argues that since the last proceeding in-
volving Sullivan, it hired new counsel and a human relations
professional to assure that no actions would be taken against
employees because of their union activities and that many
union activists were promoted to management positions
showing that the Company harbors no union animus. Sulli-
van, according to the Respondent, was discharged because of
gross insubordination and a direct violation of its published
plant rules.
A fair evaluation of the record evidence, however, shows
that Joseph Sullivan was once again discharged because of
his union activity. The Company used Sullivan’s refusal to
do the assigned task as a pretext in a blatant display of dis-
parate treatment to rid itself of this employee. There is no
dispute that Sullivan, when told by Supervisor Kalyan to un-
load the truck, responded that he did not want to unload the
truck because it was too cold there and that he refused to
follow those instructions. There is also no dispute that the
Company’s employee handbook lists ‘‘gross insubordina-
tion’’ as one of the incidents that ‘‘alone may result in an
immediate discharge situation’’ (G.C. Exh. 2). By letter of
February 5, 1988, Sullivan was informed as follows (G.C.
Exh. 5):
By your unprovoked conduct toward supervision, when
you refused direct verbal orders, you committed acts of
gross insubordination. Your actions were in violation of
published and posted plant work rules, of which you
are familiar. Specifically, the work rule on gross insub-
ordination, which has been defined by example as ‘‘re-
fusal to obey orders, either verbal or written.’’ Con-
sequently, the company has no other alternative but to
terminate you from Pottsville Bleaching and Dyeing
Company, effective January 29, 1988.
However, contrary to the statements in that letter, the
record shows that the Company did have other alternatives
and in fact used such alternatives in prior incidents of insub-
ordination involving other employees. The record contains
representative examples of numerous incidents of gross in-
subordination committed by other employees, yet the Re-
spondent had to concede that between 1984, the first time
Sullivan was discharged for insubordination, and his second
discharge in 1988, no other employee was fired for gross in-
subordination (Tr. 460). Only one other discharge for gross
insubordination occurred in all these years and it happened
after Sullivan’s discharge in 1988. Employee David Rubright
was fired in August 1988 for an act of insubordination, but
only after he had received a final warning and was already
on 1-year probation for other offenses. Sullivan, was sum-
marily discharged without such prior disciplinary record. The
record also contains a letter, dated April 22, 1987, from
Pottsville Bleaching to Donald Unger, an employee, which
details certain misconduct including being ‘‘disruptive, dis-
respectful, insubordinate, and generally hostile toward . . .
supervisor, Bill Hossler’’ (G.C. Exh. 16). Not only was
Unger insubordinate but he also engaged in yelling obsceni-
ties at a female employee (G.C. Exh. 15). Unger, unlike Sul-
livan, merely received a warning. The Respondent argues
that the Company took Unger’s emotional problem into con-
sideration as a mitigating circumstance. However, the record
shows that Unger had mental problems sometime ago in
1979. In any case, Unger was not discharged for an extreme
outburst and insubordinate demeanor. He was also not dis-
charged for his direct refusal to follow the orders of his su-
pervisor, Hossler, in January 1988 when he was instructed
‘‘to go turn.’’ His supervisor simply told him to go home.
was back at his job on the following day (Tr. 249–250).
In its brief, the Respondent has attempted to distinguish on
narrow grounds incidents of insubordinate, disrespectful, and
openly defiant conduct by other employees, suggesting that
the particular employee either admitted his wrongdoing,
apologized for it, or had a good reason for the insubordina-
tion. According to the Respondent, an employee may be jus-
tified in disregarding a supervisor’s order when his own ma-
chine was still in operation, or if he had more seniority than
another employee who could perform the same task. Remark-
ably, however, all acts of insubordination or other mis-
conduct which often exceeded that of Sullivan’s in severity,
were treated with more leniency.
For example, Roy Yeager, presently an employee in the
finishing department, testified that during a period of October
through November 1987, he was told by Supervisor Kalyan
191POTTSVILLE BLEACHING CO.
12 I credit Guldin’s testimony about this episode despite McBennett’s denial,
because Guldin was a reluctant witness and because O’Hara corroborated that
such an incident occurred.
13 The Respondent’s reasons for doubting Sullivan’s claim of a cold were
that he would have called in sick or at least provided an immediate excuse.
14 The Respondent conceded that such a policy existed, but made an attempt
to distinguish between a job assignment while the operating machine is operat-
ing and one during a temporary shutdown of the machine. In the latter exam-
ple, the employee had supposedly no choice. Only if an employee’s machine
was still in operation or when the employee’s regular work was not available
for an entire shift would such employees have the option to refuse an assign-
ment. It is doubtful that the employees were aware of such technical distinc-
tions.
‘‘to go over and run the rolling machine.’’ ‘‘At least eight
to 10 times’’ Yeager simply refused, saying ‘‘I am not going
over. . . . I got work for me . . . put the youngest guy on
there’’ (Tr. 140). Kalyan simply walked away without dis-
ciplining Yeager. Lawrence Seaman, a truckdriver for Potts-
ville Bleaching, testified that in February 1988 he was angry
at his supervisor, Rick Bubeck, for telling him not to report
for work one day. On the following day, Seaman cursed him
saying, ‘‘fuck you,’’ three times without being punished. He
later apologized and was told that the Company had just
fired someone, namely, Sullivan, for such conduct.
Employee Joseph Skocik testified that in December 1987
Supervisor Kalyan called him into his office and told him
that he wanted him ‘‘to do all the tieing [sic] up of bundles
and everything.’’ Skocik replied that it did not sound fair and
that another employee who had less seniority should do that
work. Kalyan simply relented without disciplining Skocik
(Tr. 196–197).
The testimony of Robert Shappell deals with two instances
of insubordination. He related that he argued with his super-
visor, Rick Horton, about the subject of 4 hours of overtime
as follows (Tr. 235):
We were there arguing for the four hours. He gave
me the option to work the four hours and I refused it
and he told me when I am talking to you, shut your
mouth and I told him I don’t shut my mouth for no
cock suckers.
His supervisor then left and when he returned, Shappell
told him to ‘‘leave me the hell alone.’’ Shappell was not dis-
ciplined for this episode. Shappell also testified that he ob-
served Supervisor Kalyan instruct employee Michael Mallo
several months prior to this hearing, saying (Tr. 236): ‘‘Go
down the other end of the wrapping machine, take the cloth
off the wrapping machine.’’ According to Shappell, Mallo
said, ‘‘no it ain’t my job.’’ Yet Mallo was not disciplined
and continued working at the plant. Lawrence Burns, a dryer
operator, recalled in his testimony that in January 1989 Bill
Hossler approached him about 4 p.m. and said ‘‘Larry you
are going to have to go wet sew . . . and . . . if you don’t
wet sew you are going to have to go home’’ (Tr. 252–253).
Burns replied that he would sew, but then he returned to his
machine and told Hossler to assign another less senior em-
ployee to do the job. Again, even though Burns refused to
comply with his supervisor’s order, he was not disciplined
and continued in his job. Robert Umbenhen is another em-
ployee at Pottsville who testified unequivocally that about 2
years ago while he was in the finishing department, Kalyan
ordered him to do a certain task or go home. Umbenhen dis-
tinctly remembered that he refused to do the job and was not
disciplined in any way (Tr. 324). Employee Thomas Pacine
who, according to the testimony of Gary O’Hara, Respond-
ent’s employee relations manager, actually threatened the life
of Supervisor Bubeck in 1986 and subsequently in 1988
again threatened Supervisor Hossler with a beating (Tr. 451–
456). Employee Pacine was disciplined but not discharged
for such ‘‘serious offenses.’’ Raymond Guldin, an employee,
testified that in January 1988 he was working at the con-
veyor belt taking off bundles and weighing them, when Su-
pervisor Kalyan ordered him to ‘‘tie the bundles.’’ Guldin
told Kalyan that he should not have to do the extra work.
Kalyan merely responded that if anything came back he
would get a warning. Although Guldin ultimately complied
with Kalyan’s order, he testified that when Plant Manager
McBennett appeared at the work station, Guldin told him to
keep Kalyan off his back or would ‘‘knock him on his f—
ing rearend.’’ McBennett simply watched the employees
without taking any disciplinary action.12
The Respondent argues that none of these incidents com-
pare with Sullivan’s repeated insubordination, stating that
‘‘Sullivan refused on three occasions a direct order to do
work by two supervisors’’ (R. Br. 30). Not only is the Re-
spondent’s description of Sullivan’s misconduct exaggerated,
but the Respondent also failed to explain convincingly that
misconduct by other employees, such as threats of bodily
harm against supervisors, sleeping on the job, obscene lan-
guage directed at supervisors and employees, as well as em-
ployees’ refusals to follow orders of supervisors were toler-
ated by the Respondent with little or no discipline. Not a sin-
gle employee was fired for insubordination in the years from
1984 when Sullivan was first discharged to 1988 the year of
his second discharge. The Respondent’s disparate treatment
is all the more apparent because Sullivan, unlike most other
employees who were insubordinate, had a cold and did not
want to be exposed to the cold environment at the trailer
ramp. The Respondent disputes these factors arguing that
Sullivan did not have a cold13 and that, in any case, the tem-
perature in the trailer area was not extremely cold. But the
record is clear that the Respondent was simply quarreling
with Sullivan’s excuse. Here, unlike in other, similar cir-
cumstances, the Respondent refused to consider it as a miti-
gating factor.
The record is abundantly clear that Sullivan would not
have been discharged for his refusal to help unload the trail-
er, if he had been treated like all the other employees. He
might have been suspended or put on a final warning, or be
entirely excused as in the case of several other employees in
view of the mitigating circumstances. Indeed, the record
shows that the Company maintained a policy that gave the
employee an option when faced with an order to perform a
task when it is not part of an employee’s ordinary job assign-
ment. He could either do the job or opt to go home without
incurring any discipline.14 Sullivan’s record as one of the
most active union supporters and his open and persistent
union support leads to the only conclusion. He was dis-
charged again because of his union activities. This is particu-
larly evident from the Respondent’s proven union animus, re-
flected in the prior cases and its violations of Section 8(a)(1)
of the Act. Wright Line, 251 NLRB 1083 (1980).
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. Employee Interviews
The final allegation of unlawful conduct was included pur-
suant to General Counsel’s motion to amend the complaint
(Tr. 149). It alleged that the Respondent violated Section
8(a)(1) of the Act by conducting ‘‘interviews of employees
without assuring the employees that no reprisals would be
taken against them as a result of the interviews’’ (Tr. 13).
The record shows that Respondent’s counsel, Barry R.
Elson, conducted interviews with three employees Roy
Yeager, Joseph Skocik, and Paul Sherry in March 1989.
Yeager testified that Gene Kalyan told him to see Gary
O’Hara. Yeager was then introduced to two attorneys, Barry
Elson and Stephen Yarnell. Elson stated: ‘‘I would like to
ask you a couple of questions on Joe Sullivan’s case. . . .
Is it all right with you.’’ (Tr. 150.) According to Yeager,
Elson did not tell him that he had the right not to answer
or that no reprisals would occur as a result of the interviews.
Skocik testified that Kalyan approached him about 11:50
a.m. and told him to see O’Hara. When he arrived at
O’Hara’s office, O’Hara said, ‘‘these gentlemen would like
to speak to you about Joe Sullivan if it is all right with you’’
(Tr. 198). Skocik agreed and expressed no objection to
O’Hara’s presence during the interview. According to
Skocik, Elson questioned Skocik about the events of January
29 without stating ‘‘that the company would not take any
disciplinary action against’’ him if he chose not to answer
the questions (Tr. 199).
Paul Sherry, who has worked for the Company for 21
years, similarly testified that he was asked to report to
O’Hara’s office by Kalyan. In addition to O’Hara, also
present were the two attorneys. Elson proceeded to ask him
questions about a certain letter and about Joe Sullivan. Sher-
ry testified that Elson did not make any statements assuring
him that he had a right not to answer any questions or that
he would not suffer any disciplinary action if he chose not
to answer any questions (Tr. 359).
The only witness to testify for the Respondent on this
issue was Attorney Elson. He conceded that he questioned
the three employees in preparation for the litigation and that
he followed the same procedure with each employee. He out-
lined that procedure as follows (Tr. 732–733):
I introduced myself by name, and my position, that I
was an attorney for the company. I was not an em-
ployee of the company but a lawyer representing the
company. I explained to him what it was that I was in
Port Carbon for. I explained the nature of the NLRB
proceeding that was pending at the time so that he
would have some sense of who I was and the context
in which he found me. I explained the NLRB complaint
regarding Mr. Sullivan and the other allegations as well
as the objections to election I told Mr. Yeager that it
was perfectly acceptable that he not speak to me if he
did not care to speak to me, that it was his choice. It
made no different [sic] to me or the company. I also
told him that all I was interested in was the truth re-
garding the items or matters that I might ask him about
or anything he might say. That I didn’t care one way
or the other whether or not what he would say would
help or hurt the company in its defense of the objec-
tions or of the unfair labor practice charges. That I was
here to find out some facts to begin or continue prepa-
ration for the case and that that was what I was there
for, and if he was willing to speak to me, he could. If
he didn’t care to speak to me, that was perfectly all
right as well.
I do not doubt counsel’s testimony to the extent that he
obtained the employees’ consent and indicated to them that
he was interested in obtaining the truth about the Sullivan in-
cident, but I must credit the consistent testimony of the three
employees in general. Had they heard the elaborate statement
that Elson claims to have made, they would have recalled at
least a portion of his explanation. Unfortunately, O’Hara and
Yarnell who were present during the interviews were not
questioned about this incident. Accordingly I find that the
Respondent interrogated the three employees in preparation
for litigation without disclosing all the necessary warnings.
Without certain safeguards, such interviews have long been
recognized to have a coercive effect on the employees’ Sec-
tion 7 rights. The Respondent failed, at least in part, to im-
part the necessary assurances to the three employees, in vio-
lation of Section 8(a)(1) of the Act. In Bill Scott Oldsmobile,
282 NLRB 1073, 1075 (1987), the Board stated as follows:
Since Johnnie’s Poultry Co., 146 NLRB 770 (1964),
enf. denied 344 F.2d 617 (8th Cir. 1965), the Board has
consistently required an employer to administer three
warnings to each employee it interviews in preparation
for an unfair labor practice proceeding: instruct him of
‘‘the purpose of the questioning, assure him that no re-
prisal will take place, and obtain his permission on a
voluntary basis.’’
D. The Objections
The Respondent’s violations of Section 8(a)(3) and (1) of
the Act when it discharged Joseph Sullivan for the second
time and the Respondent’s misconduct under Section 8(a)(1)
of the Act as it related to threats and other coercive conduct
towards Michael Griesbaum during the critical preelection
period, seriously interfered with the election. Considering the
number of violations, their severity, the extent of discrimina-
tion, and the size of the unit, it is clear that these violations
interfered with the exercise of a free and untrammeled choice
in the election. This is particularly so when the Respondent’s
past conduct including the first discharge of Joseph Sullivan
is considered. Enola Super Thrift, 233 NLRB 409 (1977). It
is clear that Respondent’s conduct warrants the setting aside
of the election.
CONCLUSIONS OF LAW
1. Pottsville Bleaching and Dyeing Company is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By threatening employees with unspecified reprisals for
wearing union insignia, the Respondent violated Section
8(a)(1) of the Act.
3. By stating that employees were out of work or would
not be considered for job vacancies because of their union
activities, the Respondent violated Section 8(a)(1) of the Act.
4. By referring to a union activist as a ‘‘troublemaker’’
and by refusing to provide him with a grievance form, the
Respondent violated Section 8(a)(1) of the Act.
193POTTSVILLE BLEACHING CO.
15 A broad order is justified in this case. Hickmott Foods, 242 NLRB 1357
(1979).
16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
17 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
5. By interrogating employees in preparation for trial with-
out disclosing safeguards that their answers are voluntary and
that no reprisals would be taken, the Respondent violated
Section 8(a)(1) of the Act.
6. By discharging Joseph Sullivan because of his union ac-
tivities, the Respondent violated Section 8(a)(3) and (1) of
the Act.
7. Objections (2) and (3) in the notice of hearing dated
December 19, 1988, in Case 4–RC–15816 as consolidated
with the complaint, have been sustained as a result of the
findings that presented the same issues. The objectionable
conduct requires that the election conducted on 5 April 22
and 23, 1988, in Case 4–RC–15816 be set aside, because the
violations found interfered with the election and prevented
the holding of a fair election.
THE REMEDY
On concluding that the Respondent has engaged in certain
unfair labor practices, I find it necessary to recommend that
it cease and desist in any other manner therefrom15 and take
certain affirmative action necessary to effectuate the policies
of the Act. Having unlawfully discharged Joseph Sullivan,
the Respondent shall offer him reinstatement, and make him
whole for lost earnings and other benefits computed on a
quarterly basis from the date of discharge to the date of a
proper offer of reinstatement, less net interim earnings in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Pottsville Bleaching and Dyeing Com-
pany, Port Carbon, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because they engage in any activity on behalf of
Teamsters Union Local No. 115, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO or any other labor
organization.
(b) Threatening employees with unspecified reprisals for
wearing union insignia.
(c) Stating that employees were out of work or would not
be considered for job vacancies because of their union activi-
ties.
(d) Referring to union activists as ‘‘troublemakers’’ or
having a bad attitude and refusing to provide grievance forms
to employees because of their union support.
(e) Interrogating employees in preparation for trial without
disclosing necessary safeguards including that their answers
are voluntary and that there would be no reprisals.
(f) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Joseph Sullivan immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Port Carbon, Pennsylvania facility copies of
the attached notice marked ‘‘Appendix.’’17 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the election held on
April 22 and 23, 1988, in Case 4–RC–15816 be set aside and
that it be remanded to the Regional Director for the purpose
of conducting a second election.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate against
our employees because they engage in any activity on behalf
of Teamsters Union Local No. 115, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO or any other labor
organization.
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with reprisals for
wearing union insignia.
WE WILL NOT tell our employees that they are out of work
or will not be considered for job vacancies because of their
union activities.
WE WILL NOT refer to union activist as ‘‘troublemakers’’
or refuse to provide them with grievance forms.
WE WILL NOT interview our employees in preparation for
trial without telling them certain safeguards such as that their
answers are voluntary and that they will not incur any repris-
als.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer Joseph Sullivan immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest
WE WILL notify Joseph Sullivan that we have removed
from our files any reference to his discharge and that the dis-
charge will not be used against him in any way.
POTTSVILLE BLEACHING AND DYEING COMPANY