Sewell Plastics, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1974

212 N.L.R.B. 839 (N.L.R.B. 1974)

SEWELL PLASTICS, INC. 839
Sewell Plastics , Inc. 'and Glass Bottle Blowers Associa-
tion of U.S. and Canada. Cases 11-CA-5421, 11-
CA-5440, 11-CA-5446, 11-CA-5447, and 11-
RC-3754
August 13, 1974
DECISION, ORDER, AND DIRECTION
By MEMBERS FANNING, KENNEDY. AND PENELLO
lations of the Board, within 10 days from the date of
this-Decision, Order, and Direction, at a time and
place he shall announce, open and count the ballots
of Evelyn Vaughan, John Dodson, Robert Gilchrist,
Arbutus Redmon, Roberta Street, Delores Scott,
Jeanette McLemore, Donald Suddreth, and Disa
Walker and thereafter prepare and cause to be served
on the parties a revised tally of ballots, including
therein the count of the challenged ballots and the
appropriate certification.
On March 29, 1974, Administrative Law Judge Sid-
ney Sherman issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the Charging Party filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of exceptions and briefs and
has decided to affirm the rulings, findings,' and con-
clusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Sewell Plastics, Inc., Char-
lotte, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd . 188 F.2d 362 (C.A. 3, 1951 ) We have carefully examined the
record and find no basis for reversing his findings
2 In agreeing with the Administrative Law Judge 's conclusion that
Respondent's application of its no-solicitation rule violated Sec. 8 (a)(1) of the
Act, Members Kennedy and Penello do not adopt the reasoning set forth in
In. 8 of his Decision and the cases cited therein.
3 The Charging Party's motion to sever , made after this consolidated case
was transferred to the Board , is hereby granted, there being no opposition
filed thereto by any of the parties.
DIRECTION
It is directed that Case 11-RC-3754 be severed and
remanded to the Regional Director 3 and that the Re-
gional Director shall, pursuant to the Rules and Regu-
DECISION
SIDNEY SHERMAN, Administrative Law Judge: The instant
charges were served on Respondent between August 1 and
23, 1973,1 the complaint issued on September 28, and the
case was heard on January 15, 16, and 17, 1974. The issues
litigated related to alleged violations of Section 8(a)(1) and
(3) and the eligibility of certain voters in a Board election.
After the hearing, briefs were filed by Respondent and the
Charging Party.
Upon the entire record,2 the following findings and rec-
ommendations are made:
I RESPONDENT'S BUSINESS
Sewell Plastics, Inc., herem called Respondent, is a corpo-
ration incorporated under the laws of Georgia, and is en-
gaged at its plant in Charlotte, North Carolina, in
manufacturing plastic containers. It annually receives at
that plant from out-of-state suppliers raw materials valued
at more than $50,000 and annually ships to out-of-state
points products worth more than $50,000. Respondent is
engaged in commerce under the Act.
II THE UNION
Glass Bottle Blowers Association of U.S. and Canada,
hereinafter called the Union, is a labor organization under
the Act.
III. THE MERITS
In the instant proceeding, the following issues were liti-
gated:
1. Whether Respondent violated Section 8(a)(1) by inter-
rogation, threats, creating the impression of surveillance,
and restrictions on solicitation, and distribution of literature
on behalf of the Union?
2. Whether Respondent discharged four named employ-
ees for union activity?
3. Whether 15 voters, whose ballots were challenged in a
Board election, were elibible to vote?
i All dates hereinafter are in 1973, unless otherwise indicated.
2 For corrections of the record and an evidentiary ruling, see the orders of
March 4 and 8, 1974. See, also, the order of March 20, 1974, relating to the
receipt in evidence of certain post-hearing correspondence, as well as other
matters To complete the record, my letter of March 11, 1974, and the
General Counsel's letter of March 18, 1974, have been marked as Court's
Exhs 8 and 9, respectively, and are hereby received in evidence.
212 NLRB No. 121
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Sequence of Events
At the instant plant Respondent has about 90 production
and maintenance employees who are engaged in the manu-
facture of plastic containers. The plant operates 7 days a
week, on three 8-hour shifts.
The Union began to organize the employees in April or
May. Early in June, Respondent's general manager, B. J.
Dodson, hereinafter called Dodson, began to discuss the
union campaign with other members of management at
biweekly meetings. At these meetings the shift foremen were
canvassed as to their views regarding the union sentiments
of their subordinates. Early in June, employees Redmon
and Henderson were reprimanded for soliciting on behalf of
the Union. On July 2, the Union filed its petition in Case
1 I-RC-3754 and on August 2 the parties executed a Stipu-
lation for Certification Upon Consent Election. On August
10, Respondent discharged Redmon, allegedly for threaten-
ing to inflict damage on another employee's car Scott and
Street were discharged on August 20, allegedly for absentee-
ism, and Whitten was terminated on August 21 on the same
ground The election, held on September 13, resulted in a
vote of 29 to 22 in favor of the Union, with 15 ballots being
challenged. Objections by Respondent to the conduct of
this election were dismissed by the Regional Director and
no appeal was taken from that ruling. The issues with re-
spect to the challenged ballots were ordered to be adjudicat-
ed in the instant proceeding
B. Discussion
1. Union animus
As background evidence of Respondent's union animus
the General Counsel requested that the Board take official
notice of its decision in the case of Sewell, Inc, 207 NLRB
No. 36 (1973), involving a Tennessee plant of the same
Respondent.3 Notice is hereby taken that the Board there
found that Respondent violated Section 8(a)(I) of the Act,
and interfered with a Board election, by interrogation,
threats of reprisal, creating the impression of surveillance of
union activity, soliciting employees to sign antiunion peti-
tions, and offering inducements to reject the union.
2. The 8(a)(1) violations
a. No-solicitation rule
The complaint, as amended at the hearing, alleges that
Respondent violated Section 8(a)(I) of the Act in the fol-
lowing respects:
1. Promulgating, maintaining, and enforcing "a pre-
sumptively valid no-solicitation rule on and after June
1, 1973, to inhibit legal union activity "
2. Promulgating, maintaining, and enforcing a no-
distribution rule on and after June 1, 1973, "which
prohibited distribution of literature at any time on
3 See Court's Exh 3
Respondent's property."
3. Issuing written warnings to Redmon and Hender-
son.
The record shows that Respondent's "Plant Work Rules,"
as posted on the plant bulletin board since December 1971,
contains the following:
The following work rules have been created for the
purpose of establishing standards of conduct and be-
havior for all hourly employees
Any employee who disregards or violates any of the
listed work rules shall be subject to the following sched-
ule of discipline, except that, depending upon the na-
ture or degree of the offense, the Company may invoke
any one of the disciplinary penalties immediately with-
out warning.
1 First offense-verbal warning
2. Second offense-written warning
3 Third offense-layoff
4 Fourth offense-discharge
A Attendance and Punctuality
B. Standards of Conduct
11. Unauthorized soliciting of funds or distribution
of literature on property Subject to immediate dis-
charge.
12. Engaging in union solicitation or organization
activities during working time and neglecting own
work and/or interfering with work of others will be
subject to immediate discharge.
It is clear from Board precedent that the foregoing no-
distribution rule is unlawful on its face, insofar as it purports
to forbid the distribution of union literature in nonworking
areas during nonworking time, and it is found that by main-
taining that rule in effect since June 1, 1973,4 Respondent
violated Section 8(a)(1) of the Act.
As for the no-solicitation rule, the General Counsel's
theory appears to be that, while it was valid on its face, it
was enforced so as to reach union activity protected by the
Act The only evidence bearing on that allegation was that
adduced with respect to certain warnings issued to Redmon
and Henderson, which warnings are, as noted above, the
subject matter of a separate allegation in the complaint. In
view of this, both allegations will be treated as one Early
in June, Redmon solicited a fellow employee, Archer, to
sign a union card in the plant. According to Redmon, such
solicitation occurred during a work break and Henderson
That is the date alleged in the complaint as the initial violation date The
only explanation for this suggested by the record is that the General Counsel
regarded June I as the date when Respondent inaugurated an antiunion
campaign
SEWELL PLASTICS, INC. 841
was not involved. Archer reported this incident to a fellow that it occurred during working time but that it occurred
employee, M. Suddreth, who, according to her testimony, during- time , for which,-they were drawing pay, and that
reported to Dodson that Archer claimed that both Redmon Respondent's concern extended beyond eliminating inter-
and Henderson were soliciting for the Union, but she ac- ference with production to the suppression of union activi-
knowledged that Dodson did not ask her, and she did not ty by an employee during any time for which he received
tell him, whether the solicitation occurred during worktime pay from Respondent.
or breaktime 5 Upon consideration of all the foregoing circumstances,
Dodson's version was that M. Suddreth told him the so- particularly the evidence of Respondent's own personnel
licitation of Archer by Redmon and Henderson occurred records, it is found that, as Redmon and Henderson testi-
during worktime and not during breaktime, However, M. fied, they were, in effect, warned that they had violated a
Suddreth was Respondent's own witness and still in its em- plant rule by engaging in union activity on "company time,"
ploy and it was clear from her entire testimony that she was notwithstanding that the posted rule prohibited such activi-
not favorably disposed toward Redmon. Accordingly, I ty only if conducted during working time to the prejudice
credit her testimony that, in making her report to Dodson of one's own work or the work of others. It is not clear
she was not asked, and did not say, whether the solicitation whether the foregoing incident should be treated as involv-
occurred during working time or breaktime.6_ ing a misapplication of that rule or the oral promulgation
Upon receiving this report, Dodson, according to his tes- of a new broader restriction of union activity. In any event,
timony, instructed Plant Manager Caldwell and Production it is clear that by the strictures of Hoover and Caldwell
Manager Hoover to warn the two ladies against engaging in related above, reinforced by the issuance of a written warn-
union activity on "company time," which he explained at ing to the two employees (of whom the one had solicited
the hearing was meant to refer only to working time.7 only during work breaks and the other had not solicited at
Caldwell's version was that Dodson, in fact, told him the all), Respondent inhibited them from engaging in union
solicitation had occurred during actual working time and activity at any time during the workday, including lunch
that, pursuant to Dodson's instruction to give the two ladies periods, coffeebreaks, and the like. It follows that Respon-
a warning , he told Redmon that she had been reportedly dent thereby violated Section 8(a)(1) of the Act .8
engaging in union organizing activity "while at work on
company time," that this violated Respondent's no-solicita-
tion rule, and that a "warning" would be placed in her file.
As for Henderson, Hoover testified that pursuant to advice
received from Dodson he told her that the Respondent had
evidence that she had "conducted union business during
working time" and that he reprimanded her therefor, plac-
ing a written warning in her file. However, the warning
notice for each lady in Respondent's personnel files states
only,that she was "informed that the Company had evi-
dence that she had been conducting union business on com-
pany time and that this was against the law and company
policy." (Emphasis supplied.) Moreover, the testimony of
Redmon and Henderson jibes with the foregoing documen-
tary evidence as to the thrust of the warnings issued. Thus,
Redmon testified that, in interviewing her, Hoover cited
complaints that she was "trying to organize" on "company
time" and asserted that Respondent could not pay her for
time spent in such activity; and Henderson related that in
her interview Hoover declared that employees were not al=
lowed to engage in union activity on company time, since
that was not what they were being paid for. Such avowals
of aversion to paying employees for time spent on union
activities make it clear that the gravamen of the employees'
supposed offense in the eyes of management was not only
5 M. Suddreth averred that she, herself , had received no information on
that point from Archer.
6 Initially, Dodson testified that he was told by M. Suddreth that Redmon
and Henderson had solicited Archer on "company time" and that he pro-
ceeded to instruct Caldwell and Hoover to warn the two ladies 'against
engaging in union activity on "company time " It was only after his attention
was directed to the question of whether the solicitation occurred during
worktime as opposed to breaktime that he qualified his prior testimony,
asserting that all his references to "company time" were intended to denote
only worktime
7 See fn 6, supra
b. Threats
The complaint alleges that Respondent violated Section
8(a)(1) of the Act through the following conduct of Fore-
man Steel on June 15:
Threatened its employees that it was watching them
and had identified the leader of the Union.
8 Even if one accepted Respondent 's version of the incident, there would
be applicable here Board decisions that a rule against solicitation during
"working time" is so ambiguous as to be unlawful Avon Convalescent Center,
Inc., 200 NLRB 702 (1972); Campbell Soup Company, 159 NLRB 74 (1966)
Related to the foregoing incident is an allegation in the complaint that
Respondent violated Sec 8(axl) of the Act by creating the impression of
surveillance of union activity The only evidence in support of this was
certain testimony by Henderson that in the interview described above she
was told that Respondent had evidence she had signed a union card in the
plant However, all the other relevant evidence in the record points to a
finding that the only charge against Henderson was that she was involved
with Redmon in soliciting Archer. While it may well be that Henderson took
Hoover's rather vague reference to her "conducting union business" as de-
noting the signing of a union card , it has already been found that the fore-
going remark was unlawful because of its intended overbroad interdiction of
union solicitation ; and, it would be straining at a gnat to base a separate
violation finding on the unintended construction that Henderson apparently
placed thereon. Accordingly, no such finding will be made.
Also related to the foregoing incident is an allegation in the complaint of
unlawful interrogation of Redmon by Caldwell on June 13. The General
Counsel relies on the testimony of Redmon that on the ocassion described
above, after citing complaints about her soliciting on company time, Hoover
asked how she "felt about it." The General Counsel would presumably have
the Board construe "it" as referring to the Union. While it may well be that,
as Respondent contends , Hoover was merely seeking Redmon's reaction to
the charge against her , even such an inquiry would be unlawful , since it was
calculated to elicit information not only about her solicitation during work-
ing time but also, as found above , about such activity during work breaks
It is found that by such interrogation about protected concerted activity,
Respondent violated Sec . 8(a)(1). (Although there was a variance between the
complaint and the proof as to the identity of the interrogator , it is clear that
both Caldwell and Hoover participated in the discussion with Redmon, and
that the matter was adequately litigated.)
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support thereof, Street testified that some time in July,
while she was in Respondent's employ and active on behalf
of the Union, Steel told her that Dodson had received a
telephone call from an unidentified person informing him
that Street was the "leader of the Union" in Respondent's
plant. Steel denied that he had made any such statement.
While, on the basis of demeanor and the circumstantiality
of her testimony, Street is credited, it is not apparent that
any violation has been proved. Although the complaint
characterizes Steel's remark as a threat, all that was involved
here was a disclosure by a supervisor to an employee that
higher management had received an unsolicited report that
the employee was the leading union adherent. It is not clear
how this alone can be regarded as a threat of reprisal.'
The complaint further alleges a threat by Steel on July 16
that Respondent was attempting to discharge employees
because of their union activities. Street testified that in mid-
July Steel told her that he had been ordered by Dodson to
discharge her because of her union activity. On the basis of
demeanor, Street is credited notwithstanding Steel's denial,
and it is found that by the foregoing disclosure of Dodson's
instruction to discharge Street for union activity Respon-
dent violated Section 8(a)(l) of the Act.
There was evidence, also, that on July 10, Steel gave a
similar warning to Redmon The latter testified that about
July 10, while she and Henderson were driving home from
the plant with Steel, he remarked that Dodson knew that
Redmon was involved with the Union and that she had
better be careful because Dodson was bent on discharging
her. Henderson confirmed the substance of this testimony.
Steel admitted that he had ridden with the two ladies on that
occasion and that there had been a discussion of the Union
but vacillated between a categorical denial of the remarks
attributed to him and a disclaimer of any recollection what-
soever of what was said about the Union on that occasion
In view of Steel's equivocation, as well as demeanor consid-
erations, the mutually corroborative versions of Redmon
and Henderson are credited and it is found that Steel
warned Redmon, in effect, that Dodson was aware of her
union activity and was preparing to discharge her on that
account Respondent thereby violated Section 8(a)(1).
3. The discharges
a. Street and Scott
Scott was originally hired on August 14, 1972,10 and
Street on January 16, 1973.11 Both worked on the second
9 One might consider Steel's disclosure to constitute a subtle form of inter-
rogation , on the theory that it was calculated to elicit from Street an affir-
mance or denial of the role ascribed to her by the mysterious informant
However, although interrogation by Steel (on August 2 ) was alleged in the
complaint , that allegation was withdrawn at the hearing and no other interro-
gation by him is alleged In view of this state of the pleadings , this court is
reluctant to find interrogation on the basis of the foregoing incident Accord.
in 9y, no violation finding will be based thereon
Id See Resp Exh 12
it Although Street testified that she started to work for Respondent in
January 1972, she apparently misspoke herself , as Respondent 's records
support the date-in the text See Resp Exh 9 Note , also, that in Resp Exh
shift as inspector-packers under Foreman Steel. They drove
to work together and were both discharged on August 20,
the reason assigned in both cases being poor attendance. In
view of these, and other, features common to both cases,
they will be considered together.12
Early in May, they, together with two other employees,'3
quit Respondent's employ in a dispute over their wage rates
but about a month later they applied to Steel for rehire. In
agreeing to take Street back, he warned her that Respondent
did not want the Union.14 It has been found above, more-
over, that in July Steel divulged to Street that Dodson had
a report that she was the leader of the union faction in the
plant and later that month confided to her that Dodson had
ordered him to discharge her because of her union activity.
Turner, who had been foreman on Respondent's first
shift from December 1971 until September 1973, testified
that at a supervisors' meeting held in June Dodson included
Street and Scott in an enumeration of those active on behalf
of the Union and instructed the foremen to be on the look-
out for any signs of union activity, to maintain better re-
cords of absenteeism, tardiness and quality of work for all
employees but particularly for known union adherents, and
to try to isolate the latter from the rest of the employees.
According to Turner, at another supervisors' meeting in
mid-July Steel expressed the view that Street and Scott were
Employer-oriented and opposed to the Union, citing their
outstanding performance on thejob,15 but Dodson disputed
this, asserting that he had heard that they were soliciting
signature cards and arranging meetings, whereupon the wit-
ness asked Dodson why he had rehired them (in June) if he
believed they were prounion, and Dodson explained that he
needed them on the second shift because "it had so many
inexperienced people, and they were experienced."
Dodson testified that Street and Scott were rehired in
June on a probationary basis only after they assured him
that they would be "dependable"; and that at a supervisors'
meeting in July, when he canvassed the foremen on their
opinions about the union sentiments of their subordinates,
Steel professed uncertainty about Street and Scott. Dodson
insisted that he, himself, regarded them as antiunion and he
disputed Turner's testimony insofar as it imputed to Dod-
son any association of Street and Scott with the Union.
While acknowledging that he admonished the foremen to
watch out for employee union activity and to upgrade their
recordkeeping, and that he polled them about the union
sentiments of their subordinates, Dodson denied that he
proposed any special treatment of union adherents. Howev-
er, although Caldwell, Hoover, and Steel were all present at
the management meetings and testified for Respondent at
the instant hearing, none was asked by Respondent to cor-
roborate Dodson's version of his remarks except insofar as
he denied that he had at such meetings rated Street and
10, which is a summary by days and weeks of the hours worked by each
employee since January I, 1973, Street's name appears for the first time in
the summary for the week ending January 21, 1973
12 Only Street appeared at the hearing The General Counsel explained that
diligent efforts to locate Scott had been unavailing
Whitten and Benson
14 Street so testified, without contradiction
is According to Turner, Steel said, " they were good workers, and they
were more of less leaders on the second shift as far as trainees and cooperat-
ing with him
SEWELL PLASTICS, INC. 843
Scott as union adherents. Steel's version was that, when
asked by Dodson about their union sentiments, he answered
that he did not know, and Dodson made no comment.
According to Caldwell, the discussion of the union involve-
ment of Street and Scott at the management meetings was
limited to an evaluation of them by Steel as "questionable."
While professing uncertainty about the matter, Hoover
tended to the view that Street and Scott were rated as ques-
tionable, but could not recall what opinion Dodson ex-
pressed about them.
The issue thus posed is whether to credit Turner against
Dodson as to the uncorroborated portion of his testimony
and whether to credit Turner against all four management
representatives as to the specific discussion of the union
involvement of Street and Scott. The interest of those four
in the outcome of this proceeding was more apparent than
was Turner's. He testified that he became sympathetic to the
Union's cause, when, in August, Respondent brought pres-
sure on him to "isolate" a supposed union adherent from the
other employees. While that might well explain Turner's
decision to testify for the General Counsel, it is quite a
different matter to infer from this that Turner was so in-
censed by Respondent's conduct that he would risk the
penalties of perjury and invent the foregoing elaborate and
circumstantial account of conversations between Dodson
and his supervisors.
In view of this, as well as the failure of Hoover, Caldwell,
and Steel to corroborate the bulk of Dodson's testimony,
Turner is credited as to the discussion of Street and Scott
at the management meetings, including not only Dodson's
identification of them as union adherents, but also the ap-
praisal by both Dodson and Steel of their competence and
of their value to Respondent because of their experience on
a shift that had a high rate of turnover,16 as well as Dodson's
instructions concerning the special attention to be given to
know union adherents.
As to the events leading up to the discharge of Street and
Scott, the record shows that on August 10, Steel went on
vacation and did not return until the 20th. Stone, who nor-
mally substituted for Steel in his absence, was left in charge
of the second shift. Street credibly testified that, before
leaving, Steel warned her and Scott to be careful because
Stone would be "firmg." 17
According to Respondent's Exhibit 10,18 Street and Scott
worked every day during the 7-day period from August 10
through 16, for a total of 56 hours. On the 17th, a Friday,
Street called Stone to report that she and Scott would be 45
minutes late, but both were excused by Stone for the rest of
the day," because he had already replaced them with em-
ployees whose machine had broken down. Although both
16 Of the 22 production workers, including Street and Scott, who worked
on the second shift for the week ending January 21, only 5 (Benson. Mc-
Cauley, Whitten, Williams, and Helms) were still so employed when Street
and Smith were rehired in June and when they were terminated on August
20
17 Although Steel gave a different version, Street is credited on the basis
of demeanor.
18 As noted above, this was a summary by days and weeks of all hours
worked by each employee in 1973
19 The foregoing is based on the testimony of Street and Stone. As to Scott,
see Resp. Exh. 11 ("absentee report" for August 17)
ladies were scheduled to work on the 19th, neither of them
put in an appearance. Stone testified that this prompted him
to recommend their discharge to Caldwell and Hoover. He
disclaimed any knowledge of their union sentiments. Cald-
well confirmed that on the 19th Stone complained of the
ladies' absenteeism and recommended that "something" be
done about it. He added that, after reviewing their atten-
dance record for 1973, and comparing it with that of all
other employees on the second shift, he and Hoover de-
termined that Street and Scott had the worst record of all;
and that the witness thereupon decided to discharge them.
He, too, denied knowledge of their union sentiments.
Hoover testified that on August 19 he was notified by
Stone of a high rate of absenteeism on the second shift
during the preceding week and of his intention to issue a
warning to Street, and Scott; that the witness and Caldwell
proceeded to review the attendance records of all the em-
ployees on the second shift; and that he concurred in the
decision to discharge Street and Scott. However, he was not
asked, and did not say, whether the review made of their
records revealed that they had the worst attendance on the
second shift. He, too, disclaimed knowledge of their union
activity.
Dodson testified that he was told by either Caldwell or
Hoover that the two ladies were being dismissed for absen-
teeism and tardiness and that, after glancing at the evidence
presented to him, he acquiesced in their decision.
As against the foregoing explanation for the discharges,
the General Counsel elicited from Respondent's former su-
pervisor, Turner, testimony that at a supervisors' meeting,
which, the record shows, was held late in August (and after
the instant charges had been filed with the Board), Dodson
commented on the recent discharges, not only of Street and
Scott, but also of Redmon and Whitten, declaring that he
did not want anyone to know that the four had been dis-
charged for union activity and that if anyone asked why
they were terminated he was to be told that it was for poor
attendance and, in the case of Redmon, for threatening
employees. Dodson's version was that he referred on that
occasion only to Street and Scott and said they had been
discharged for absenteeism and that "due to the situation
that we were in at this particular 1time," if anyone asked to
tell them that was the reason. Neither Caldwell nor Hoover
corroborated Dodson's testimony that he told the supervi-
sors that the two ladies had, in fact, been discharged for
absenteeism. While they confirmed that he did instruct the
supervisors on that occasion that, if asked, they were to say
that Street and Scott were discharged for absenteeism, Cald-
well added that Dodson admonished the supervisors at the
same time not to "interfere with" of "discourage" any em-
ployee who wanted to believe that the two were discharged
for union activity.
It appears from the foregoing that all who testified on the
point, including Turner, agreed that Dodson instructed his
supervisors to tell anybody who asked that Street and Scott
were discharged for absenteeism. Moreover, no one specifi-
cally disputed the testimony of Caldwell that Dodson at the
same time forbade any discouragement of employees from
believing that Street and Scott were discharged for union
activity, and one cannot fail to be impressed by the appar-
ent candor of such testimony. It is credited.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, up to this point it has been found that Dodson told
the supervisors that, if asked, they were to explain that
Street and Scott had been discharged for absenteeism but
not to take issue with any employee who expressed the view
that the discharges had in fact been for union activity. There
remains to be considered the conflict between Dodson and
Turner as to whether the former, in fact, announced to his
supervisors that the discharges were for absenteeism or im-
plied that they were for union activity. Insofar as it attrib-
utes to Dodson an aversion to any disclosure that the
discharges were discriminatory, Turner's testimony may
seem to conflict with Caldwell's foregoing credited testimo-
ny that Dodson enjoined his supervisors not to discourage
the employees from believing that the discharges were dis-
criminatory. However, there is no necessary inconsistency
between Dodson's not wanting the employees to "know,"
through admissions by management, that the discharges
were for union activity and his willingness to have them
suspect that such was the case . It is understandable that
Respondent would want to avoid any disclosure that might
be used to support unfair labor practice charges (which had
already been filed) or afford a basis for setting aside the
election (if the Union lost), but have no objection to reaping
the benefit of the chilling effect on union adherents of any
private conviction they might have that the discharges were
in reprisal for union activity.
In view of the foregoing considerations, as well as those
cited above with regard to Turner's credibility, in general,
credence is given to his version, as supplemented by
Caldwell's admission, and it is found that on the occasion
in question, in discussing the discharges of Street and
Scott,26 Dodson stated only that he did not want anyone to
know that such discharges were for union activity and that,
if asked, the supervisors were to say that the discharges were
for absenteeism but were not to take issue with anyone who
insisted on believing that the true reason was union activity.
Further militating against acceptance of Respondent's
explanation for the discharges is the absence of any support
therefore in Respondent's own records. As already related,
Caldwell and Hoover agreed that they decided upon the
discharges after reviewing the attendance records of all the
second shift employees, and Caldwell asserted that such
review showed that the record of Street and Scott was the
worst of all. He explained that, in analyzing the records of
Street and Scott, he relied primarily on a review of the
"absentee reports" and "warning notices" in their personnel
files, but, in addition, consulted the summary of hours
worked in Respondent's Exhibit 10,21 to see, if there were
any periods of absence that were not recorded in the person-
nel files. Caldwell testified that the foregoing review extend-
ed back to the beginning of 1973, that the purpose thereof
was to determine the total production time lost by Scott and
Street in relation to the other employees on their shift, that,
in making this determination, he took into account intermit-
tent brief periods of illness, but not periods of extended and
continuous sick leave. With regard to employees other than
Street and Scott (and Whitten 22 ) the only record of atten-
dance placed in evidence by Respondent was that contained
in the foregoing summary of hours worked by each employ-
ee in 1973. It shows that, while Scott worked a total of 29
weeks in 1973,23 for a weekly average of 43 hours, and Street
worked a total of 27 weeks 24 for a weekly average of 41
hours, Garris, another second-shift employee, who was
hired on April 1, worked a total of 21 weeks between that
date and August 17,25 and averaged only 37.4 hours per
week, and during the 26 weeks she worked for Respondent
prior to August 17 McCauley, also on the second shift,
averaged only 35.5 hours per week.26 Finally, Walker, an-
other second-shift employee, who was hired on May 18, and
worked a total of 9 weeks from that date to August 17, had
a weekly average of only 39.6 hours 27
Thus, on the basis of the criterion of total loss of produc-
tion time, which Caldwell professed to have utilized 28 and
the evidence of Respondent's own records, it is clear that
Scott and Street compared favorably with at least three
others on their shift, none of whom was discharged.
It is true that, as noted above, Caldwell professed to have
relied primarily, not on Respondent's Exhibit 10, but on
material in the employees' personnel files, and in support of
his position there were placed in evidence documents from
the files of Street and Scott consisting, inter alia, of (1)
"absentee reports" and (2) warning notices. The absentee
reports were memoranda recording the fact of, and reason
for, an employee's absence or tardiness on a particular day.
Thus, for example, in the case of Street, the report for Au-
gust 6 shows that she was absent due to the illness of her
child, that for August 18 shows that she was absent because
it was her "day off" (i.e., she was not scheduled to work that
day), and that for August 1 notes only that she failed to
report. It appears that only the last type of absence was
considered by Respondent to be "unexcused," and that,
where an employee gave advance notice of absence or tardi-
ness, it was treated as "excused" for purposes of
Respondent's plant rules,29 including the definition therein
22 For a discussion of her case, see the text, below.
23 During that year she was in Respondent's employ from January 1 to
May 11, and from June 7 to August 20.
24 She was in Respondent's employ from January 16 to May 11, and from
June 4 to August 20
25 That date marked the end of the last pay penod before August 20, when
Scott and Street were discharged
26 In view of Caldwell's testimony that penods of sick leave were not
counted by him, there have been excluded from the computation in Mc-
Cauley's case apparent periods of sick leave in April and July.
27 There has been excluded from the computation in Walker's case a period
of 3 weeks' sick leave in July
Whitten, whom Respondent admittedly had decided to retain on August
19, worked an average of 35.3 hours per week dunng 1973. See the discussion
of her case in the text, below
28 There was a suggestion at the hearing that there was a marked deteriora-
tion in the attendance of Street and Scott after the dates of their rehire early
in June However, even if one compares the records of all five employees only
since those dates , such comparison still favors Scott and Street over Garris,
McCauley, and Walker
29 Respondent 's plant rules (G. C Exh. 3), list the following among the
grounds for disciplinary action.
A. ATTENDANCE AND PUNCTUALT Y
1 Failure to report, or to report late for work without prior notification
20 Whether, as Turner testified , Dodson 's remarks applied to Whitten and to foreman . . . [Emphasis supplied.]
Redmon , as well as to Street and Scott, will be considered below . See, also , Resp Exhs . 9 and 12, which purport to delineate the "excused"
21 See fn. 18, above absences of Street and Scott.
SEWELL PLASTICS, INC. 845
of "habitual absenteeism." 30
While the record contains a number of absentee reports
for Street and Scott, there is no need at this point to consider
them in detail, since more exact information as to how much
time was lost due to a particular absence or tardiness is
contained in the summary of hours worked (Resp . Exh. 10),
discussed above. Moreover, such reports are significant
only as a basis for comparison with similar reports for the
rest of the second-shift employees , a matter which will be
considered below.
With regard to any other matters that Caldwell may have
relied on, in comparing the attendance of Street and Scott
with those of the other employees, the record contains only
the following: (1) The testimony of Caldwell that he gave
consideration to the warning notices in Respondent's per-
sonnel files ; (2) all the warning notices contained in the
personnel files of Street and Scott (and Whitten); and (3)
certain warning notices issued to Barnes (which were intro-
duced by the General Counsel)31
With regard to warning notices given Scott , the material
in evidence shows that during the entire period of her em-
ployment she received only one such notice , which was
issued by Stone on August 12 for "not calling in and staying
out." This apparently had reference to an incident on Au-
gust 7, when Steel was still on the job as foreman , and for
which he had not seen fit to issue any warning notice him-
self. With regard to warning notices given Street, the record
shows that she received such notices only for tardiness, that
she was issued a third such notice on August 12 by Stone,
which refers to a "final warning ," 32 and another such notice
on August 17. However, as related above, on the 17th, Street
admittedly gave Stone advance notice of tardiness, as re-
quired by the plant rules,33 and no explanation was offered
for Stone 's issuing a warning to her therefor . Moreover,
Stone admittedly did not recommend Str'eet's discharge be-
cause of her lateness on the 17th but rather because of her
failure to report on the 19th, and Caldwell professed to rely
on a review of her entire record , rather than on any one
incident. With regard to Barnes, who was still in
Respondent's employ at the time of the hearing and who
testified as a witness for Respondent , the record shows that
she received at least four warning notices within a space of
4 months in the latter half of 1972, two for lateness , one for
absence, and one for "very poor attitude about her work."
No other evidence was presented by Respondent regard-
mg warning notices or absentee reports of its employees
other than Caldwell's assertion that his review on August 19
of the attendance records of all the second-shift employees
showed that those of Street and Scott were the worst of all.
As already seen , insofar as he professed to rely on the sum-
30 That term is there defined as". . the failure of an employee to work
the hours offered in any given period without an authorized excused absence
Vacations and leaves of absence are not counted as failures to work "
3i There were, also, placed in evidence with respect to Street and Scott
facsimiles of calendars for the last 7 months of 1973, with coded notations
on particular dates , purporting to denote an absence on that date and wheth-
er it was excused or unexcused Those calendars show a number of excused,
but no unexcused , absences for Scott and Street
32 Resp Exh . 10 indicates she was 15 minutes late on the 12th, as she
worked only 7-3/4 hours that day.
33 See In . 29, above.
mary of hours worked by each employee (Resp. Exh. 10),
Caldwell's assertion did not jibe with that summary, which
shows that three employees who were retained on August 19
lost more worktime for which they were scheduled than
Street or Scott Insofar as the foregoing assertion may be
deemed to be based on reports of absence and tardiness in
the employees. personnel file, it should suffice to note that
such reports merely reflected the same incidents that en-
tered into the compilation of the foregoing summary, and
so would presumably have shown, as did such summary,
that during 1973 Garris, McCauley, and Walker missed
more scheduled worktime than Scott and Street. With re-
gard to Caldwell's asserted reliance, in part, on the number
of warning notices in an employee's personnel file, it is clear
that Barnes had acquired more such notices in 4 months
than had Scott during the 11 months that she worked for
Respondent , and the same number as Street received during
the 6 months of her employment . As for the warning notices
received by others on the second shift , there was evidence
only as to Whitten, whose case is discussed below. The
failure of Respondent to put into the record any other docu-
mentation on that point raises a question as to the legal
admissibility of Caldwell's foregoing assertion, insofar as it
purports to be based on warning notices (or any other data
in the employees' personnel files). This question was fore-
shadowed at the hearing, when Caldwell testified that, after
a review of the personnel files for the employees on the
second shift, he concluded that Street and Scott had the
worst attendance records. The General Counsel objected,
and moved to strike, on the ground that such testimony was
not admissible, unless the files referred to were made avail-
able. This court indicated agreement that the files should be,
made available or placed in evidence and stated that, unless
that was done an adverse inference would be drawn. At the
close of the hearing , Respondent announced an intention to
put those files in evidence as Respondent's Exhibit 16, and
it was agreed that such exhibit might be submitted by mail
after the close of the oral testimony 34 However, Respon-
dent has not yet produced that exhibit. In reply to a post-
hearing inquiry, Respondent advised that it had decided not
to submit the exhibit , expressing the view that it was incum-
bent upon the General Counsel to prove his case by evi-
dence adduced at the trial and "not by adverse inferences
drawn from matters which are not even in evidence." 35
Initially, it may be pointed out that there is involved here
a question not only of drawing an adverse inference but also
of permitting Caldwell's heresay testimony about the con-
tents of the personnel files to remain in the record, in the
face of the General Counsel's motion to strike, notwith-
standing Respondent's refusal to produce those files. Under
the circumstances, an order striking Caldwell's testimony
would seem warranted at this time. It has been determined,
however, to take the less drastic course of retaining such
testimony in the record but of drawing the inference, which
34 A notation in the transcript that the exhibit was received in evidence at
the hearing is erroneous. See the order of March 20.
35 See Court's Exhs. 3 and 7 . In addition, Respondent there expressed the
view , in effect, that there was no need for it to present any evidence at all
as to Scott and Whitten, because no prima facie case had been made out as
to them However, Turner's testimony which is set forth above, as to
Dodson's discussion of their discharges with his supervisors alone suffices to
establish a prima facie case
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seems amply justified, that Respondent's ultimate decision
not to produce the files was due to the fact that they do not
support Caldwell's testimony.36 Respondent's contention, in
effect, that the General Counsel is required to prove his case
by evidence other than an inference drawn from
Respondent's nonproduction of its records is not tenable as
a matter of law 37 Moreover, even if it were, such contention
would not apply here. The General Counsel had already
made out a prima facie case of discriminatory motivation
through, inter alia, the testimony of Turner as to Dodson's
post-discharge admissions , and it was incumbent upon Re-
spondent to overcome the effect of such testimony, which
was presumably the reason for the introduction of
Respondent's Exhibit 10 and other evidence bearing on the
issue of disparate treatment. Accordingly, properly ana-
lyzed , its failure to produce documentary evidence in its
possession bearing on that issue warrants the inference that
such evidence does not support Respondent 's defense to the
General Counsel's prima facie case.
Under all the circumstances, it is concluded that
Respondent's records , including its personnel files, do not
sustain its contention that Scott and Street had the worst
attendance records on the second shift. In view of all the
circumstances impugning the veracity of Respondent's ex-
planation for the discharge of Street and Scott, it is found
that, as implied in Dodson 's post-discharge instructions to
his supervisors, Street and Scott were in fact discharged
because of their actual or supposed union activity.38 If any
confirmation for this were needed , it would be found in
Steel's aforenoted admission to Street in mid-July that Dod-
son had already decided to discharge her because of her
union activity.
It follows that, in discharging Street and Scott, Respon-
dent violated Section 8(a)(3) and (1) of the Act 39
b. Whitten
Whitten was hired by Respondent in July 1972, and
worked as an inspector-packer on the first shift until May
31. After a 2-month break in her employment due to ill-
ness,40 she returned to work on the second shift. Regarding
her relations with Scott and Street, she said, "We were like
sisters. We were always together...."
On August 21, when she learned-of their discharge she
asked Hoover whether she had also been terminated. He
answered that she had not been, but would be if her record
was as bad as that of Scott and Street. Later that day, he
notified her that, after reviewing her record, he had con-
cluded that it was as bad as theirs and she was terminated.
Hoover testified that he first reviewed Whitten's atten-
dance record on August 19 in connection with the general
review he made that day of the entire second shift, and that
he was favorably impressed by the fact that she had appar-
ently had a perfect attendance record for about 2 months;
that, although he noted a relapse thereafter to her previous
erratic habits, he did not intend to discharge her, but only
to reprimand her therefor; that on August 21 Whitten asked
him why she had not been discharged along with her
"friends," insisting that her absenteeism was as bad as
theirs; that Hoover replied that he would review her record
and that, if it was as bad as theirs, he would terminate her;
that he did thereafter review her record again and ascer-
tained that she had not worked at all during the aforenoted
2-month period; and that, in view of this new aspect of the
matter, he decided to terminate her.
Over the 23-week period of her active employment in
1973, Whitten worked an average of 35.3 hours per week,
which was only slightly inferior to McCauley'sweekly aver-
age of 35.5 hours. It is conceded, in any event, that Respon-
dent had no intention of terminating her until she identified
herself to Hoover as a friend of Scott and Street and insisted
that she be terminated because her absenteeism was as bad
as theirs. When, upon reviewing her record, Hoover de-
termined that it was even worse than that of Scott and Street
it must have been clear to him that Respondent would be
in an untenable position if it retained Whitten, particularly
since she had already made an issue out of the disparate
treatment accorded Scott and Street. It is inferred that it was
this consideration rather than Hoover's alleged reappraisal
of her record in the light of newly discovered information 41
that led to Whitten's discharge. It is found, therefore, that
she was discharged in order to give an appearance of legiti-
macy to the dismissal of Scott and Street.
There was no evidence nor contention that Whitten, her-
36 International Union, United Automobile, Aerospace, and Agricultural Im-
plement Workers of America (UAW) [Gyrodyne Co of America] v. N.L R B.,
459 F 2d 1329 (C A D.C, 1972), and cases there cited
° Ibid
38 The record shows that, after returning to Respondent 's employ in June,
Street became involved in union activity, soliciting employees in the plant.
Scott did not appear at the hearing (see fn . 12, above), and there was no
evidence as to her union activity. However, it has been found that at the
supervisors ' meetings Dodson classified her, as well as Street , as prounion,
imputing to both the solicitation of signatures on cards and the arranging of
meetings.
39 Respondent introduced documentary evidence (Resp Exh . 7) that a
number of employees other than Scott and Street had been discharged in
1973 for poor attendance. However, insofar as appears from Respondent's
own records (Resp . Exh. 10), not only were the average weekly hours of these
employees far less than those of Street or Scott but it also appears that none
of them worked for Respondent more than a few weeks , whereas, as found
above, Street and Scott were among the most senior employees on the second
shift and valued by Respondent for their experience and competence
40 Whether during this period she was on sick leave or terminated will be
considered later
41 Hoover claimed to have been misled in his initial review of Whitten's
file by a summary sheet, which allegedly listed all instances of absence and
tardiness but, according to Hoover , failed to show her as having been termi-
nated on May 31 However , the only summary of her attendance placed in
evidence was G C Exh 7, which was taken from his personnel file, and is
a facsimile of a calendar with appropriate coded entries , indicating , inter aria,
dates of excused and unexcused absence . In addition, the foregoing facsimile
bears notations indicating that she was terminated on May 31 and "rehired"
at the beginning of August Although it was not entirely clear from Hoover's
testimony that he was referring to the foregoing "calendar," Respondent
asserted in a post-hearing communication that such was the case . See Court's
Exh. 7 . If so, it is not understandable why Hoover would think , in the face
of the foregoing notations , that Whitten was still actively employed by Re-
spondent in June and July In any case , even if Hoover's explanation of his
"mistake" be credited , all that would prove is that he initially thought that
the retention of Whitten was justified on the basis of a comparison of her
attendance with that of Street and Scott and that , in discharging her, he was
seeking to correct a manifest disparity in the treatment of these two vis-a-vis
Whitten. It having been found that the discharge of Street and Scott was for
a discriminatory reason , the inference would still be warranted under all the
circumstances, that at least one of Hoover 's objects in correcting that dispari-
ty was to prevent exposure of such discrimination.
SEWELL PLASTICS, INC. 847
self, engaged in any union activity, and, although credence
is given to Turner's aforenoted testimony that at the meet-
ing late in August Dodson included Whitten in his enumera-
tion of employees who, he implied, had been dismissed for
union activity,42 it may well be that he did not mean thereby
that he regarded her as a union adherent but only that he
regarded her discharge as incidental to, and necessitated by,
the dismissal of others who were union adherents. At any
rate, it suffices to establish unlawful discrimination against
Whitten that, as found above, she was discharged in order
to conceal the discriminatory motivation for the discharge
of Scott and Street.43 It follows that by discharging her for
such a reason Respondent violated Section 8(a)(3) and (1)
of the Act.44
c. Redmon
She worked on the third shift, and had been in
Respondent's employ for 4 years. It has already been found
that she had been rebuked by Respondent for soliciting for
the Union and that about July 10 Supervisor Steel warned
her that Dodson was bent on discharging her because of her
involvement with the Union. Redmon was in fact dis-
charged on August 10. The reason given her at the time by
Dodson was that he had evidence that he had threatened to
damage an employee's car. Redmon denied to Dodson, and
at the hearing, that she had uttered any such threat.
Dodson testified that M. Suddreth had reported to him
that Redmon had threatened to damage M. Suddreth's auto
because she was carrying tales about Redmon to manage-
ment; that M. Suddreth cited another employee, Barnes, as
the source of her information concerning this threat; and
that, upon receiving verication of this from Barnes, he de-
cided to discharge Redmon.
Barnes testified that sometime during the spring of 1973
Redmon confided to her that Dodson had M. Suddreth
spying on Redmon and threatened that she would put sugar
in M. Suddreth's gas tank if she informed on her to Dodson;
that in mid-June Redmon remarked to Barnes that she sus-
pected M. Suddreth of having given Dodson information
about Redmon's union activity, and that, if she ever con-
firmed this suspicion, she would "do anything she could to
hurt" M. Suddreth. Barnes added that sometime later, either
in July or August, she reported both these threats to M.
Suddreth, and that, at the latter's request, she made the
42 Dodson denied that his remarks on that occasion applied to anyone
other than Street and Scott. However, Hoover vacillated as to whether Whit-
ten was mentioned, and Caldwell merely professed inability to recall any
reference to anyone other than Street and Scott. Steel was not asked about
the matter, although, as Whitten's immediate supervisor at the time of her
discharge, he might have been expected to have some interest in, and recol-
lection of, any reference to her
43 Wilfard's Shop Rite Markets, Inc, 132 NLRB 1146, 1149 (1961).
44 In its brief , Respondent cites as one of the circumstances justifying
Whitten's discharge the fact that after August 3 she had "four unexcused
absences in her first ten scheduled workdays all occurring on weekends." The
only evidence of any such absences in the record is Resp Exh. 15 ("absentee
report" dated August 11), which shows that her absence on August 12, and
possibly, also, her absence on August 11, were not excused Moreover, G. C
Exh. 7 , which , was taken from her personnel file, casts doubt even on this,
since it indicates that, whoever prepared that exhibit for Respondent, decided
to reclassify her absences on the 11th and 12th from "unexcused" to "day
off" (i e., one on which she was not scheduled to work).
same report to Dodson either on August 9 or 10.
M. Suddreth confirmed that Barnes had reported to her
Redmon's threat to put sugar in the witness's gas tank if she
gave Dodson information about union activity in the plant,
and that she promptly reported this to Dodson.
In view of the circumstantiality of Barnes' testimony
about Redmon's threat, such testimony is credited, notwith-
standing Redmon's denial. It is clear, in any event, absent
any contrary testimony„ that M. Suddreth and Barnes re-
ported such a threat to Dodson. The only remaining ques-
tion is whether Dodson discharged Redmon because of
such threat or whether he seized upon the report of the
threat as a pretext for carrying out his plan to discharge her
for union activity.
The posted plant rules contain the following:
The use of malicious, profane, abusive or threatening
language. Subject to immediate discharge.
However, proof that Dodson did not in fact discharge her
for that reason is afforded by Turner's aforedescribed testi-
mony that Dodson's discussion with his supervisors late in
August regarding the recent discharges applied to Redmon
among others,45 and it is found that Dodson then said that
he did not want anyone to know that her discharge was for
union activity, and instructed his supervisors that, if asked,
they were to ascribe her discharge to the threatening of
employees (but they were not to disagree with anyone who
chose to believe otherwise).
It is found, therefore, on the basis of Dodson's foregoing
admission, that he did not regard the "threat" incident as
sufficient reason, in itself, to discharge Redmon, an employ-
ee with 4 years' seniority, and that he would not have dis-
missed her but for her union activity. It follows that by her
discharge Respondent further violated Section 8(a)(3) and
(1).
c. The Challenged Ballots
Pursuant to the Board's direction, there were litigated at
the instant hearing the issues with regard to the voting eligi-
bility of the 15 whose ballots were challenged in the election
held on September 13.
Since it has been stipulated by the parties that Vaughan,
D. Suddreth, J. Dodson, and Gilchrist were eligible,46 there
is no need for any further discussion as to them.
1. Walker
There was no serious dispute that she was on sick leave
during the eligibility period and on funeral leave on the day
of the election. She is found eligible.
45 Neither Caldwell nor Hoover unequivocally corroborated Dodson's de-
nial that his remarks applied to Redmon Caldwell merely disclaimed any
recollection of any reference to her on that occasion and Hoover professed
not to recall that Dodson offered any explanation of her termination
46 As to Gilchrist, see the Union's post-hearing brief at p. 2, and and Resp
br, p. 2
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. A. Dodson 3. McLemore
He is the son of Respondent's vice president and general
manager, heretofore referred to as Dodson. The record
shows that during the 13-week period from July 13 to Octo-
ber 10 he worked an average of 7.5 hours per week as an
over-the-road driver for Respondent; 47 and that during
1973 he had a full-time job with Duke Power Company and
attended a local college at night.
As to his employment by Respondent before July 13, the
senior Dodson testified that his son had worked for Respon-
dent since at least 1970, driving a truck on one or two trips
a week. When asked specifically whether during 1973 his
son had worked for Respondent at any time prior to July
13, the senior Dodson answered:
She was hired in August 1972. On June 27, she was in-
jured on the job and received compensation therefor under
the State workmen's compensation law. She did not return
to work for Respondent until August 1. She was challenged
by the Board agent at the election because her name did not
appear on the eligibility list. Respondent took no position
as to her eligibility.
The record contains documentary evidence from
Respondent's files showing that on June 29, she had been
granted sick leave until August 1 .52 It is found that she was
eligible to vote.
4. Whitten
I am sure that he worked some prior to that during
1973; again I would have to double-check; I can't re-
call specifically.
However, examination of the Respondent's own records
in evidence purporting to list the hours worked by each
employee in each week in 1973,48 shows no hours for A.
Dodson for any week in 1973, before the week ending July
20. Thus, it appears from the instant record that as of the
eligibility date (July 27) he had worked for Respondent only
2 weeks during the preceding 7 months.
Respondent contends that A. Dodson qualifies as a regu-
lar part-time employee under the rule enunciated in The
May Department Stores Company d/b/a The M. ONeil Com-
pany, 175 NLRB 514, 517 (1969), and related cases. 9 In
those cases, which involved the eligibility of on-call employ-
ees in department stores, it was held that they were eligible
to vote if they "regularly" averaged 4 hours or more per
week during the last quarter prior to the eligibility date (and
were not temporary or seasonal employees). However, even
if one deems those cases controlling here, they would afford
no basis for finding A. Dodson eligible as of July 27, in view
of the evidence from Respondent's own records that he
worked only 2 weeks during the 7 months immediately pre-
ceding that date. Apparently, Respondent would have the
Board extend the holding of those cases to permit A.
Dodson's eligibility to be determined on the basis of his
employment record after the eligibility date, and even after
the election (September 13). It is clear, however, that such
employment may not be considered 50
It is, accordingly, found that as of the eligibility date A.
Dodson was a casual employee and it will be recommended
that the challenge to his ballot be sustained.51
47 Union's Exh. 2(b).
48 Resp. Exh. -10
49 Davison-Paxon Company, a Division of R. H Macy & Co., Inc, 185
NLRB 21, 23 (1970); Allied Stores of Ohio, Inc., 175 NLRB 966, 969 (1969)
w N.L R B v Belcher Towing Company, 284 F 2d 118 (C.A 5, 1960).
51 In view of the foregoing disposition of the matter, there is no need to
consider the Union's further contentions that the fact that A. Dodson had
other, full-time employment during 1973, and was also attending college at
that time militates against his eligibility
She was challenged by the Board agent because her name
did not appear on the eligibility list. Respondent contends
that she was not eligible because (1) she had been terminat-
ed on May 31, due to protracted illness and did not return
to work until August 3, which was after the eligibility date,
and (2) she was, in any event, terminated again on August
21, for absenteeism, as related above. As to (2), it has been
found that her discharge on August 21 was for discriminato-
ry reasons. Accordingly, it is no bar to her eligibility. As to
(1), both Whitten and her foreman, Turner, testified that she
was granted sick leave for the period of her absence from
May 31 to August 3. However, Turner acknowledged the
authenticity of a document, signed by him, dated May 31,
stating that she was being terminated because she had been
out of work for several weeks due to illness and
Respondent's records show that, when she returned to work
on August 3, she was required to execute certain forms
applicable to new employees. It is clear that, as McLemore's
case illustrates , Respondent had a policy of granting leave
to employees facing protracted periods of illness or disabili-
ty, and in both cases Turner filled out the same form, which
is captioned "Termination of Employment," but, in Mc-
Lemore's case under "Reason for termination," he wrote
"30 days sick leave-will return to work Aug '1, 1973," and
made no entry on the line opposite the question, "Employee
recommended for re-employment?" However, in Whitten's
case , he made no reference to sick leave under the reason
for her termination but only to the fact that she had already
been absent from work for some time due to illness, and
with regard to her eligibility for re-employment he made the
following entry: "Yes-Very Good Worker."
It thus appears that Respondent, or, at least, Turner, used
no special form for granting sick leave but that its Termina-
tion of Employment form was adapted to serve that pur-
pose, and it may well be that Turner inadvertently did not
carry the adapting far enough in Whitten's case but as-
sumed that by "terminating" her for illness and recom-
mending her "re-employment" he was, in effect placing her
on sick leave. However, it does not appear that, when Whit-
ten returned to work, any effort was made to correct any
inadvertence on Turner's part in that regard. The record
shows only that she was treated as applying, for rehire as a
new employee, thereby, in effect, adopting and ratifying her
52 Court's Exh I and 2
SEWELL PLASTICS, INC. 849
apparent termination by Turner. Under those circum-
stances, it is found that her status throughout the period of
her absence was that of a terminated employee, so that she
was ineligible on July 27, the eligibility date.
5. Redmon, Scott, and Street
Their eligibility was contested by Respondent on the
ground that they had been discharged for cause during the
month before the election. However, as it has been found
above that their discharge was unlawful, they are deemed
eligible.
6. The supervisory issue
The Union challenged the votes of four alleged supervi-
sors-H. Suddreth, Stone, Freeman, and Parker. They will
be considered as follows:
a. H. Suddreth
An unspecified part of his time is spent in making me-
chanical repairs on Respondent's trucks and on rare occa-
sions serving as a relief driver. His other duties consist in
directing the loading of Respondent's trailers, dispatching
Respondent's five truckdrivers, and in interviewing and
testing applicants for jobs as drivers.
Dodson and H. Suddreth insisted that the latter had no
authority to discharge but only to recommend such action
and Dodson testified that such recommendations were not
always followed. However, among certain exhibits intro-
duced in evidence by Respondent at another point in the
hearing to show the incidence of discharges for cause
among its employees in 1973, were three forms captioned
"Termination of Employment" and purporting to effect the
discharge of three drivers, which were signed by H. Sud-
dreth alone as the one authorizing such discharges.53 There
was no evidence nor contention that anyone else played any
role in the matter and the record shows that they were in
fact discharged on the same date as appears on the above
forms54 It is accordingly found that H. Suddreth did have
authority to discharge.
In view of this there is no need to discuss at length the
extensive testimony in the record concerning his power ef-
fectively to recommend the hiring of drivers. Suffice it to say
that such testimony, particularly Dodson's admission that
he tended to accept H. Suddreth's recommendations on that
score, and the latter's testimony that he based such recom-
mendations, at least in part, on a subjective appraisal of an
applicant's performance on a road test, amply warrants a
finding that H. Suddreth has the power effectively to recom-
mend hiring.
It is found that he was at all material times a statutory
supervisor and therefore ineligible to vote in the election.
b. Freeman
In the production department, there were three shift fore-
53 Resp . Exhs. 7(f), (h), and (p).
54 See Resp. Exh 7
men, Rollins, Steel, and Turner, all of whom concededly
had the power to discharge and were admitted to be statuto-
ry supervisors. They worked 6 days a week, and on the 7th
day, and during periods of vacation and illness were nor-
mally replaced by Freeman, Stone, and Parker, respectively.
When not acting as substitute foremen, those three were
engaged in the repair of production machinery.
Freeman, as noted above, substituted for Rollins, who
was the third-shift foreman. During the summer of 1973, the
number of employees on the third shift ranged from 20 to
25.55 He denied making any work assignments, except in the
case of a newly hired employee. He denied, also, that he had
ever disciplined or discharged anyone. However, the record
contains two "Termination of Employment" forms, intro-
duced by Respondent, dated May 4 and signed only by
Freemen purporting to effect the discharge of Fields and
Miller for reasons stated herein.56 Those employees were in
fact both discharged on May 4.57 There was no evidence nor
contention that anyone but Freeman played any part in
these discharges.
It is accordingly found that Freeman was a statutory
supervisor by reason of his authority to discharge employees
and was, therefore, meligible.58
c. Stone
Stone substituted for Steel on the second shift. During the
summer of 1973, there were about 25 employees on that
shift.59 Stone testified that, when replacing Steel, he selected
girls for assignment to a particular line on the basis of his
judgment as to their familiarity with that line; that he has
recommended to production manager Hoover in writing
that employees be discharged for absenteeism; that he could
not say what percentage of his recommendations has been
followed; that he recommended to Hoover and Caldwell the
discharge of Scott and Street; and that he does not grant
time off, but refers any request therefor to Hoover.
Although acknowledging that Stone had recommended
the discharge of Street and Scott for absenteeism, Caldwell
insisted, as already 'related, that he did not rely on that
recommendation but made an extensive, independent in-
vestigation of the two employees' attendance records and
that the decision to discharge them was based on the result
of that investigation. However that may be, there was per-
suasive evidence in the record that Stone was solely respon-
sible for the decision to discharge at least one
employee-Wood. One of the exhibits submitted by Re-
spondent at the hearing was a form dated August 19, cap-
tioned "Termination of Employment" initialed only by
Stone and setting forth as the reason for Wood's termina-
tion the following: "Work unsatifion (sic) and here by for
termination. Will not call in or let anyone know her trou-
bles, this is why I think we should replace this person" 60
55 See fourth page of weekly summaries for that period in Resp . Exh 10.
56 Resp Exhs 7(d) and 7(1).
57 See Resp. Exh 7
58 In view of this disposition of the matter it is unnecessary to resolve the
conflicting testimony of Redmon and Freeman regarding his role in making
work assignments nor to consider any other matters bearing on his status as
a suervisor.
59PSee third page of weekly summaries for that period in Resp. Exh 10
60 Resp . Exh 7(q).
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wood was in fact terminated on August 19.1' Although
there is some ambiguity in the foregoing quoted language,
and it is susceptible of the construction that Stone was
merely recommending Wood's discharge, Respondent of-
fered no evidence about the circumstances of that discharge
and made no other effort to clarify the matter. Since it was
in the best position to know the facts about Stone's role in
Wood's discharge, Respondent's failure to come forward
with any evidence in that regard warrants the inference that
the facts did not jibe with its position on Stone's supervisory
status.
It is accordingly found that Stone not only, as he admit-
ted, used his own judgment in selecting employees for par-
ticular assignments, but also had the power to discharge
employees. 2
In view of all the foregoing circumstances, it is found that
Stone was at all material times a statutory supervisor and,
as such, ineligible to vote.
d. Parker
Parker substituted for Turner on the first shift. During the
summer of 1973, the number of employees on that shift
fluctuated between 20 and 30.13 Parker acknowledged that,
when substituting for Turner, he had granted time off to
employees wishing to leave work early, had improvised as-
signments for employees to avoid sending them home for
lack of work, had made decisions to assign employees to one
line rather than another, and may have recommended dis-
charge.
In view of the discretion exercised by Parker with regard
to granting time off and work assignments, and, as the
inference seems warranted that, when substituting for Turn-
er, he had the same authority with respect to discharge as
did Freeman or Stone, when they substituted for their fore-
men, it is found that he was a statutory supervisor at all
material times and, therefore, ineligible.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
It having been found that Respondent violated Section
8(a)(1) and (3) of the Act, it will be recommended that it be
required to cease and desist therefrom and take appropriate,
affirmative action. Such action shall include a proper offer
61 See Resp Exh 7. Steel was still on vacation on that date
62 There is, moreover, no dispute, and it is found, that, in the absence of
Steel, Stone had the authority to, and did, issue written warnings to employ-
ees, which became a part of their permanent record
63 See the second page of the weekly summaries for that period in Resp
Exh. 10.
of reinstatement to Redmon, Street, Scott, and Whitten and
their reimbursement for any loss of earnings suffered by
reason of the discrimination against them. Backpay shall be
computed in accordance with the formula stated in F. W.
Woolworth Company, 90 NLRB 289 (1950); interest shall be
added to backpay at the rate of 6 percent per annum. (Isis
Plumbing & Heating Co., 138 NLRB 716, 1962.)
In view of the nature of the violations found herein, par-
ticularly the acts of discrimination, a threat of future viola-
tions exists, which warrants a broad cease-and-desist order.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating employees about their
union activities, by warning employees of discharge for such
activities, by promulgating and maintaining in effect an
unduly broad no-distribution rule, and by forbidding em-
ployees to engage in union solicitation at any time during
the workday, Respondent has violated Section 8(a)(1) of the
Act.
4. By discharging Redmon, Street, and Scott because of
their actual or supposed union activities, and by discharging
Whitten to give an appearance of legitimacy to the dis-
charge of Street and Scott, Respondent has violated Section
8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended:
ORDER64
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, it
is recommended that Sewell Plastics , Inc., Charlotte, North
Carolina, its officers , agents, successors , and assigns, shall
be required to:
1. Cease and desist from:
(a) Coercively interrogaing its employees about their
union activities , and warning of discharge for union activi-
ty.
(b) Maintaining in effect a rule forbidding distribution of
union literature in nonwork areas during nonwork time and
forbidding solicitation of employees of behalf of a union
during nonwork time.
(c) Discouraging membership in Glass Bottle Blowers
Association of U.S. and Canada , or any other labor organi-
zation, by discharging employees or otherwise discnminat-
64 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
SEWELL PLASTICS, INC.
mg in regard to their hire , or any term or condition of
employment.
(d) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action , which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Arbutus Redmon , Roberta Street, Delores
Scott , and Jacqueline Whitten reinstatement to their former
positions or, if such positions no longer exist , to substantial-
ly equivalent positions , without prejudice to their seniority
or other rights and privileges.
(b) In the manner prescribed in "The Remedy" section
of the Administrative Law Judge's Decision , make whole
the foregoing employees for any loss of earnings suffered as
a result of the discrimination against them.
(c) Preserve and, upon request , make available to the
Board or its agents for examination and copying , all payroll
records, social security payment records, timecards , person-
nel records and reports , and all other records necessary to
analyze the amounts of backpay due under the terms of this
Order.
(d) Notify immediately the above -named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement , upon application, after
discharge from the Armed Forces , in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(e) Rescind its no-distribution rule insofar as it forbids
distribution of union literature in nonwork areas of the
plant during nonworking time.
(f) Post at Respondent 's Charlotte , North Carolina,
plant, copies of the notice attached hereto marked "Appen-
dix" 65 Copies of said notice , on forms to be provided by the
Regional Director for Region 11, shall , after being duly
signed by Respondent 's representative , be posted by it im-
mediately upon receipt thereof , and maintained by it for a
period of 60 consecutive days thereafter in conspicuous'
places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by Re-
spondent to insure that such notices are not altered, defaced
or covered by any other material.
(g) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the date of this Order , what steps
Respondent has taken to comply herewith.
IT IS ORDERED that all allegations of the complaint which
have not been sustained by dismissed.
IT IS FURTHER' ORDERED that in the election held in Case
11-RC-3754, the challenges to the ballots cast by Evelyn
Vaughan , John Dodson , Robert Gilchrist, Arbutus Red-
mon, Roberta Street , Delores Scott , Jeannette McLemore,
Donald Suddreth , and Disa Walker be overruled and their
ballots be opened and counted , and that the challenges to
the ballots of Jacqueline Whitten , Andrew Dodson, Hor-
race Suddreth, Larry Freeman , J. P. Stone , and Andrew
Parker be sustained.
65 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
851
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form , join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any or all these things.
WE WILL NOT discharge employees or otherwise dis-
criminate against them because of their interest in, or
activities on behalf of Glass Bottle Blowers Association
of U.S . and Canada.
WE WILL NOT threaten to discharge employees for
union activity.
WE WILL NOT ask you about your activities on behalf
of a union.
WE WILL NOT forbid employees to solicit for a union
during nonwork time.
WE WILL permit employees to distribute union litera-
ture during nonwork time in nonwork areas, and any
provision to the contrary in our plant rules is hereby
rescinded.
WE WILL offer to reinstate Arbutus Redmon, Delores
Scott, Roberta Street , and Jacqueline Whitten to their
old jobs, or, if they no longer exist, to substantially
equivalent jobs, and we will make them whole for any
earnings lost by them as a result of their discharges.
All our employees are free to belong or not to belong to
Glass Bottle Blowers Association of U.S . and Canada or
any other union.
SEWELL PLASTICS, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office , 1624 Wachovia Building, 301
North Main Street , Winston-Salem , North Carolina 27101,
Telephone 919-723-2300.