Troxel Co.

National Labor Relations Board - Board Decisions

Jan 23, 1991

301 N.L.R.B. 270 (N.L.R.B. 1991)

270
301 NLRB No. 38
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has not excepted to the judge’s dismissal of allega-
tions that the Respondent violated Sec. 8(a)(1) when it promised an employee
a promotion in exchange for a ‘‘No’’ vote in the November election or by
granting pay increases to discourage union activity. Nor has the General Coun-
sel excepted to the judge’s dismissal of allegations that the Respondent vio-
lated Sec. 8(a)(3) and (1) by discriminating against Ivy Terry, ceasing to pay
production pay for relief work to Terry and Charles Allen, or refusing to hire
Tyrone Henderson.
2 We shall modify the judge’s recommended Order to require that the Re-
spondent remove from the personnel records of Altener Shields, Thelma
Loftis, Linnie Henderson, Mary Franklin, and Linda Mason, all references to
their unlawful suspensions. The record discloses that, contrary to the judge’s
finding, the Respondent did not remove all references to the suspensions from
their personnel files. Rather, the Respondent’s personnel director, Betty
Denham, testified that she marked the suspensions ‘‘void’’ but that they re-
mained in the employees’ files.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
4 On March 23, 1988, the Board denied the Respondent’s request for review
of the Regional Director’s decision sustaining the Union’s objection to the No-
vember election and ordering a new election.
5 At that time he also spoke with the Respondent’s vice president for human
relations, David Moore, who asked Shields if he was going to attend the open-
ing of the ballots challenged during the May 10, 1988 election.
6 Terry also was active on the Union’s in-plant organizing committee as
were Shields’ sister and several other members of his family who worked for
the Respondent.
7 Shields testified that he had purchased two beers that morning, which he
consumed while working on his car at approximately noon.
8 Under the Respondent’s policy, it is a dischargeable offense to report to
work under the influence of alcohol.
9 The record discloses no prior discipline of Shields for this or any other
serious violations of the Respondent’s policies.
The Troxel Company and Furniture Workers Divi-
sion, Local 282, International Union of Elec-
tronic, Electrical, Salaried, Machine & Fur-
niture Workers, AFL–CIO. Cases 26–CA–
12325, 26–CA–12396, 26–CA–12535, 26–CA–
12562, 26–CA–12577, 26–CA–12567, 26–CA–
12621, 26–CA–12746, 26–CA–12827, 26–CA–
12831, 26–CA–12950, 26–CA–12954, 26–CA–
13027, 26–CA–13098, and 26–CA–13198–1
January 23, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 24, 1990, Administrative Law Judge Hu-
bert Lott issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed a brief in opposition to the Gen-
eral Counsel’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 as
modified.2
The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act when it discharged
employee Leerell Shields for reporting to work under
the influence of intoxicants on February 10, 1989. The
General Counsel argues that Shields was discharged,
and not given a lesser form of discipline, because of
his union activity. The Respondent asserts, however,
and the judge found, that the other employees who had
been disciplined, but not discharged, for reporting to
work under the influence of intoxicants had not actu-
ally clocked in and begun work. With this distinction
in mind, the judge found that the Respondent met its
Wright Line3 burden, that Shields would have been
discharged even absent his union activity. We disagree
and find that the General Counsel made out a prima
facie case and that the Respondent has not provided
sufficient justification for the disparity to meet its bur-
den under Wright Line.
The operative facts concerning Shields’ discharge
are essentially undisputed. On September 29, 1987, the
Union filed a petition to represent the Respondent’s
production and maintenance employees at its Moscow,
Tennessee facility at which the Respondent manufac-
tures bicycle seats, playpens, metal tubing, and other
consumer products. Shields actively supported the
Union during the campaign for the first election on
November 19, 1987, and the rerun election held May
10, 1988.4
On February 10, 1989, Shields reported to work at
the start of his 3:25 to 11:55 p.m. shift, punched his
timecard, and began to work. At approximately 4:45
p.m., while the other employees in his department
gathered to receive the department’s housekeeping
award, Shields approached his supervisor, Clinton Pye,
to request additional supplies.5 Thereafter, at approxi-
mately 5 p.m., Pye summoned Shields to the personnel
office for a meeting with Pye, David Moore, the Re-
spondent’s personnel director, Betty Denham, the
night-shift superintendent, Wilson Rhea, and another
supervisor, Mike Johnson. Shields requested a witness
and, after attempts to contact his cousin, Ivy Terry,6
failed, the Respondent summoned Shields’ sister, Glo-
ria Shields, to the meeting.
At the meeting Shields was accused of reporting to
work under the influence of intoxicants. Shields admit-
ted to having had ‘‘some beers’’ at lunchtime but de-
nied that he was under the influence7 and refused to
undergo a sobriety test. Shields also admitted that he
knew the Respondent’s policy against reporting to
work under the influence of intoxicants.8 Shields com-
plained, however, that other employees who had re-
ported to work while under the influence had not been
disciplined, and that he was being singled out because
of his union activity.9 Shields was suspended pending
an investigation and notified of his discharge on Feb-
ruary 15, 1989.
We find that the General Counsel met its burden
under Wright Line, supra, by presenting a prima facie
violation of Section 8(a)(3) and (1) concerning the dis-
271TROXEL CO.
10 These include the disparate enforcement of its no-solicitation rule and
timecard policies, interrogations, surveillance, solicitation of grievances and
promises of benefits, threats of reprisal and plant closure, and expressions of
the futility of unionism.
11 The record discloses that on May 23, 1986, Sullivan reported to work at
6 a.m., clocked in, began to work, and was sent home at 6:15 a.m.
12 In the event interest was not included, interest on the respective amounts
of backpay paid shall be required. Such interest shall be computed as in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
charge of Shields. The evidence discloses that Shields,
a union supporter, was active on the in-plant orga-
nizing committee, distributed handbills at the plant en-
trance, wore union paraphernalia, and testified, at the
Union’s request, at a Board hearing on ballots chal-
lenged during the rerun election on May 10, 1988. The
Respondent admitted it knew of Shields’ union activity
and, indeed, on the very day of the suspension that led
to his discharge, the Respondent’s vice president for
human relations asked Shields whether he would at-
tend the opening of the challenged ballots. In addition,
the Respondent’s animus toward the union activity of
its employees has been firmly established by the many
violations of the Act to which the Respondent admit-
ted.10 Finally, the evidence disclosed that Shields was
treated more harshly than others who committed simi-
lar violations of the Respondent’s policy against re-
porting to work under the influence of intoxicants. In-
deed, the Respondent presented no evidence that any
employee, prior to Shields, had been discharged for re-
porting to work under the influence of intoxicants.
The General Counsel presented evidence that em-
ployee, Calvin Sullivan, had been suspended on Octo-
ber 19, 1978, sent home on May 23, 1986, and rep-
rimanded on October 3, 1988, for reporting to work on
each of these dates under the influence of alcohol or
with the odor of alcohol on his breath. In February
1989, near the time of Shields’ discharge, the Re-
spondent referred Sullivan to a rehabilitation center for
the treatment of alcohol consumption. Similarly, on
December 13, 1985, employee Jerome Grandberry was
sent home and reprimanded by his supervisor after he
was discovered to be under the influence of alcohol,
and on March 21, 1987, employee Freddie Williamson
was ordered to clock out and go home after his super-
visor discovered that he had reported to work under
the influence of alcohol.
Notwithstanding this evidence of disparate treatment
of Shields, the judge found that the Respondent would
have discharged Shields even absent his union activi-
ties. The judge distinguished the evidence concerning
Sullivan and Grandberry stating that, unlike Shields,
they had not clocked in and started work. (The judge
did not attempt to distinguish Williamson’s situation
from Shields’.) The judge further found that, although
the Respondent admitted to inconsistencies in the
drinking policies under the prior personnel director
(who left the Respondent’s employ in November
1987), the ‘‘evidence disclosed no disparate treatment
when a supervisor discovers an employee working
under the influence of alcohol or drugs.’’ He accord-
ingly dismissed the 8(a)(3) allegation based on
Shields’ discharge.
We disagree with the judge’s attempted distinction
of the Sullivan and Grandberry situations from that of
Shields. Although on the latest occasion in October
1988, Sullivan apparently had not clocked in and
begun to work, the record discloses that, on at least
one prior occasion, he had begun to work.11 Further-
more, Grandberry’s supervisor testified that he, too,
had clocked in prior to being sent home. Although the
Respondent makes much of the fact that Shields re-
fused to take a sobriety test when one was offered to
him on February 10, 1989, the record discloses that the
Respondent had not similarly offered Sullivan and
Grandberry a sobriety test, nor had it notified employ-
ees that their refusal to take such a test would trigger
a discharge, as opposed to some lesser form of dis-
cipline, for the violation.
Contrary to the judge, therefore, we find that the Re-
spondent’s rationale for the disparate treatment of
Shields, as compared with Sullivan, Grandberry, and
Williamson, fails to rebut the General Counsel’s prima
facie case or establish that the Respondent would have
discharged Shields even absent his union activity. Ac-
cordingly, we find that the Respondent violated Sec-
tion 8(a)(3) and (1) by discharging Shields.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 4.
‘‘4. Respondent violated Section 8(a)(1) and (3) of
the Act by suspending Altener Shields, Thelma Loftis,
Linnie Henderson, Mary Franklin, Linda Mason, and
Janey Harris, and by discharging Leerell Shields.’’
AMENDED REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it must be ordered to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent discriminatorily suspended certain
employees and made restitution in backpay for the sus-
pensions. Therefore, it is only necessary to verify that
this has been done in accordance with Board law.12
However, the Respondent must remove from these em-
ployees’ records any reference to their having been
discriminatorily suspended and notify them in writing
that this has been done and that evidence of that un-
lawful action will not be used as a basis for any future
actions against them.
Having further found that the Respondent
discriminatorily discharged Leerell Shields it must
offer him immediate and full reinstatement to his
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
former position or, if that position no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of earnings
he may have suffered by reason of the discrimination
against him with interest. Backpay shall be computed
in the manner prescribed in F. W. Woolworth Co., 90
NLRB 298 (1950), with interest as computed in New
Horizons for the Retarded, supra. Likewise, the Re-
spondent must remove from Shield’s records any ref-
erence to his discharge and notify him in writing that
this has been done and that evidence of that unlawful
action will not be used as a basis for any future per-
sonnel actions against him.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, The
Troxel Company, Moscow, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(p).
‘‘(p) Discharging or otherwise discriminating against
any employee for supporting Furniture Workers Divi-
sion, Local 282, International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers,
AFL–CIO or any other labor organization.’’
2. Insert the following as paragraphs 2(a) and (b)
and reletter the subsequent paragraphs.
‘‘(a) Offer Leerell Shields immediate and full rein-
statement to his former job or, if his former job no
longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights or
privileges previously enjoyed, and make him whole for
any loss of earnings or other benefits suffered as a re-
sult of the discrimination against him in the manner set
forth in the amended remedy of this decision.
‘‘(b) Remove from its files any reference to its dis-
criminatory discharge of Leerell Shields, and the dis-
criminatory suspensions of Altener Shields, Thelma
Loftis, Linnie Henderson, Mary Franklin, Janey Harris,
and Linda Mason, and notify them in writing that this
has been done and that the discharge and suspensions,
respectively, will not be used against them in any way.
3. Insert the following as paragraph 2(e).
‘‘(e) Notify the Regional Director for Region 26 in
writing within 20 days from the date of this Order
what steps the Respondent has taken to comply.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate employees regarding union
activities and sympathies.
WE WILL NOT impliedly promise employees im-
proved benefits if employees withhold their support for
the Union.
WE WILL NOT solicit employee complaints and
grievances and promise unspecified improvements in
terms and conditions of employment if employees re-
ject the Union.
WE WILL NOT threaten employees with unspecified
reprisals.
WE WILL NOT inform employees of the futility of
selecting a union.
WE WILL NOT promise employees improved wages
and benefits if they reject the Union.
WE WILL NOT threaten to withhold benefits if our
employees select a union.
WE WILL NOT threaten plant closure if our employ-
ees selected a union.
WE WILL NOT create the impression among our em-
ployees that their union activities are under surveil-
lance.
WE WILL NOT threaten an employee with discharge
if he displays a union emblem.
WE WILL NOT maintain and enforce a solicitation
and distribution rule in a disparate manner.
WE WILL NOT maintain and enforce a timecard rule
in a disparate manner.
WE WILL NOT grant benefits to employees to dis-
courage their support of the Union.
WE WILL NOT distribute literature which impliedly
promises benefits and threatens reprisals to discourage
union support.
WE WILL NOT suspend employees engaged in union
activities.
WE WILL NOT discharge or otherwise discipline any
employee for supporting the Union or any other labor
organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Leerell Shields immediate and full
reinstatement to his former job or, if that job no longer
273TROXEL CO.
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify Leerell Shields that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
WE WILL, if necessary, make Altener Shields, Thel-
ma Loftis, Linnie Henderson, Mary Franklin, Janey
Harris, and Linda Mason whole, with interest, for any
losses they may have suffered as a result of their un-
lawful suspensions.
WE WILL notify Altener Shields, Thelma Loftis,
Linnie Henderson, Mary Franklin, Janey Harris, and
Linda Mason that we have removed from our files any
reference to their suspensions and that the suspensions
will not be used against them in any way.
THE TROXEL COMPANY
William D. Levy, Esq., for the General Counsel.
Jeff Weintraub and Richard Bennett, Esqs. (Weintraub, Rob-
inson, Weintraub & Stock), of Memphis, Tennessee, for
the Respondent.
Willie Rudd and Ida Leachman, of Memphis, Tennessee, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. The consoli-
dated cases were heard in Memphis, Tennessee, on March
20–23, May 8–11, and July 10 and 11, 1989. Unfair labor
practice charges were filed by the Furniture Workers (Union)
against the Troxel Company (Respondent) from September
1987 to May 17, 1989. Complaints, consolidated complaints,
and amended complaints issued from December 23, 1987, to
July 5, 1989.
The complaints allege multiple independent 8(a)(1) viola-
tions and 8(a)(3) and (5) violations with one 8(a)(1) and (4)
violation.
The parties were afforded an opportunity to be heard, to
call, to examine, and to cross-examine the witnesses and to
introduce relevant evidence. Since the close of hearing, briefs
have been received from the parties.
On the entire record and based on my observation of the
witnesses, and in consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Troxel Company is a corporation with an of-
fice and place of business in Moscow, Tennessee, where it
is engaged in the manufacture of bicycle seats, playpens,
metal tubing, and other consumer products. Annually, in the
course and conduct of its business operations, Respondent
sells and ships from its Moscow, Tennessee facility products,
goods, and materials valued in excess of $50,000 directly to
points outside the State of Tennessee.
The Company admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
On September 29, 1987, the Union filed a petition for
election (Case 26–RC–6988) seeking to represent approxi-
mately 600 production and maintenance employees at Re-
spondent’s Moscow, Tennessee plant. The initial Board-con-
ducted election was held on November 19, 1987. The Union
failed to receive a majority of votes cast and, subsequently,
filed objections. A rerun election was conducted on May 10,
1988. Challenges to the ballots of certain employees were
determinative of the outcome and Respondent filed timely
objections. In June 1988, a hearing was held on the objec-
tions and challenges. On August 3, 1988, the hearing officer
issued a report overruling the objections and sustaining the
four challenged ballots. Respondent filed exceptions to the
hearing officer’s conclusions. On August 28, 1988 the Re-
gional Director adopted the findings and recommendations of
the hearing officer and certified the Union. On September 14,
1988, Respondent filed with the Board a timely request for
review of the Regional Director’s decision and on March 30,
1989, the Board issued an order granting Respondent’s re-
quest. On June 16, 1989, the Board issued its Decision on
Review and Order wherein it found, contrary to the Regional
Director, that three challenged ballots should be opened and
counted. This was done on June 20, 1989, and a revised tally
of ballots showed that the Union did not obtain majority sta-
tus.
Since all the 8(a)(5) allegations were predicated on the
Union’s certification in August 1988, counsel for General
Counsel on July 5, 1989, and again on July 10, 1989, filed
a motion with me to delete or withdraw all 8(a)(5) allega-
tions in the complaints. The motion is granted.
B. The 8(a)(1) Complaint Allegations Admitted by the
Respondent
1. Respondent, on or about the dates set forth below, act-
ing through Clinton Pye (Respondent’s supervisor), at Re-
spondent facility:
(a) On or about October 12, 1987, interrogated an
employee regarding the employee’s union membership,
activities, and sympathies and impliedly promised the
employee improved benefits if the employee withheld
support for the Union.
(b) On or about October 15, 1987, interrogated its
employees regarding their union membership, activities,
and sympathies.
(c) On or about October 15, 1987, solicited em-
ployee complaints and grievances and promised its em-
ployees unspecified improvements in their terms and
conditions of employment if the employees rejected the
Union as their bargaining representative.
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. On or about October 16, 1987, Respondent, acting
through Victor John (Respondent’s supervisor), at Respond-
ent’s facility:
(a) Threatened its employees with unspecified repris-
als.
(b) Promised its employees that benefits would in-
crease and terms and conditions of employment would
improve if the employees rejected the Union as their
bargaining representative.
3. On or about October 21, 1987, Respondent, acting
through Victor John (Respondent’s supervisor), at Respond-
ent’s facility, informed its employees that it would be futile
for them to select the Union as their bargaining representa-
tive.
4. Respondent, on or about the dates set forth below,
through Michael Terry (Respondent’s president), at Respond-
ent’s facility:
(a) In or about the first week of November 1987,
during meetings with employees, impliedly promised
employees improved wages if they withheld their sup-
port of the Union.
(b) On numerous occasions during the period from
November 4, 1987, to November 17, 1987, during
meetings with employees, solicited its employees’ com-
plaints and grievances and impliedly promised to rectify
the complaints and grievances.
(c) On or about November 12, 1987, announced to
employees that it was granting employees improved se-
niority standing in order to induce the employees to
withhold their support of the Union.
(d) On or about November 17, 1987, during meet-
ings with employees, told employees that they would
lose holiday benefits and other benefits if its employees
selected the Union as their bargaining representative.
(e) On or about November 16, 1987, during a meet-
ing with employees, promised employees improved
wages if they withheld their support of the Union.
(f) On or about November 17, 1987, during meetings
with employees, told employees they would lose holi-
day benefits and suffer a reduction in wages if its em-
ployees selected the Union as their bargaining rep-
resentative.
(g) On several occasions from November 4, 1987, to
November 17, 1987, during meetings with employees,
threatened employees with plant closure if they selected
the Union as their bargaining representative.
5. Respondent, on or about the dates set forth below,
through James Russell (Respondent’s personnel director), at
Respondent’s facility:
(a) In or about the first week of November 1987,
threatened employees with reduced wages if they se-
lected the Union as their bargaining representative.
(b) On or about November 12, 1987, threatened em-
ployees with a reduction in holiday benefits if they se-
lected the Union as their bargaining representative.
(c) On or about November 16, 1987, threatened em-
ployees with reduced wages if they selected the Union
as their bargaining representative.
(d) On or about November, 17, 1987, threatened em-
ployees with reduced wages if they selected the Union
as their bargaining representative.
(e) On or about November 17, 1987, threatened em-
ployees with reduced holiday benefits if they selected
the Union as their bargaining representative.
(f) In September 1987, the exact date being un-
known, interrogated an employee regarding the employ-
ee’s union membership, activities, and sympathies.
(g) In September 1987, the exact date being un-
known, solicited an employee’s grievances and com-
plaints and impliedly promised to rectify the grievances
and complaints.
6. Respondent, through Robert Harrison (Respondent’s
board chairman and CEO), at Respondent’s facility, on or
about November 16, 1987, promised an employee unspec-
ified benefits if the employee withheld the employee’s sup-
port of the Union.
7. On or about November 16, 1987, Respondent, through
Leon Redfern (Respondent’s supervisor), at Respondent’s fa-
cility, expressed to an employee the futility of unionism by
telling the employee that Respondent would offer no benefits
in negotiations.
8. On or about November 17, 1987, Respondent, through
Minnie Adams (Respondent’s supervisor), at Respondent’s
facility, promised an employee a raise if the employee with-
held the employee’s support of the Union.
9. Respondent, on or about the dates set forth below,
through Jerry Moore (Respondent’s supervisor), at Respond-
ent’s facility:
(a) On or about November 16, 198?, interrogated an
employee regarding the employee’s union membership,
activities, and sympathies and created the impression
that Respondent maintained surveillance of the union
activities of its employees.
(b) On or about November 17, 1987, interrogated an
employee regarding the employee’s union membership,
activities, and sympathies and created the impression
that Respondent maintained surveillance of the union
activities of its employees.
10. On or about November 20, 1987, Respondent, acting
through Sam Hand, at Respondent’s facility, created an im-
pression among its employees that it was maintaining sur-
veillance of its employees’ union activities.
11. On or about February 22, 1988, Respondent, acting
through Jerry Waldrop, at Respondent’s facility, threatened
an employee with loss of employment if the employee con-
tinued to display a union emblem.
12. On or about the dates set forth below, Respondent, act-
ing through James Russell, at Respondent’s facility:
(a) On or about April 10, 1988, threatened its em-
ployees that the Respondent would leave if the Union
came in.
(b) On or about April 15, 1988, created an impres-
sion among its employees that their union activities
were under surveillance by Respondent.
(c) On or about April 15, 1988, threatened its em-
ployees with unspecified reprisals and blacklisting be-
cause of their union support.
275TROXEL CO.
13. At all times material herein, Respondent has main-
tained the following rule:
Solicitation and Distribution of materials:
Solicitation by an employee, of another employee is
prohibited while either person is on working time.
Working time is all times when an employee’s duties
require that he or she be engaged in work tasks, but
does not include an employee’ own time, such as meal
periods, scheduled breaks, time before or after a shift,
and personal clean up time. Distribution of advertising
material, handbills, or other literature in work areas of
this facility is prohibited at any time. Solicitation, dis-
tribution of literature or trespassing by non-employees
is prohibited on these premises.
(a) In or about early February 1988, the exact date
being unknown, Respondent, acting through Jim Rus-
sell, maintained and enforced the rule described above
selectively and disparately by prohibiting union-related
solicitations and distributions while permitting non-
union-related solicitations and distributions.
(b) In or about February 1988, the exact date being
unknown, Respondent, acting through Donald Culver,
maintained and enforced the rule described above selec-
tively and disparately by prohibiting-union-related so-
licitations and distributions.
(c) On or about April 11, 1988, Respondent, acting
through Eddie Lee Cavett, maintained and enforced the
rule described above selectively and disparately by pro-
hibiting union-related solicitations and distributions.
14. Since on or about April 5, 1988, Respondent has main-
tained the following rule:
Intentionally punching the timecard of another em-
ployee or permitting someone else to clock your card,
soliciting, or causing other employees to punch time-
cards other than their own, is considered a serious rules
infraction and may be cause for dismissal.
15. On or about April 5, 1988, by posting a notice to em-
ployees, Respondent promulgated the rule described above in
a discriminatory manner.
16. On or about May 10, 1988, Respondent, acting through
David Smith, at Respondent’s facility, in separate conversa-
tions with individual employees, threatened its employees
with plant closure and/or loss of jobs if the Union were se-
lected as the employees’ bargaining representative.
17. On or about May 23, 1988, at Respondent’s facility,
Respondent made and unscheduled grant of benefits to em-
ployees by implementing a monthly prayer service and pro-
viding free coffee and doughnuts at such service.
18. During or about August 1988, the exact date being un-
known, Respondent, acting through Michael Terry at Re-
spondent’s facility:
(a) Solicited employee grievances thereby discour-
aging employees’ support of the Union.
(b) Impliedly promised preferential treatment to em-
ployees who do not support the Union.
(c) Threatened employees with job loss because of
their union support and activities.
19. Respondent, on or about the dates set forth below, act-
ing through Claude Hunsucker, at Respondent’s facility:
(a) On or about August 15, 1988, threatened an em-
ployee with unspecified reprisals because of the em-
ployee’s union support and activities.
(b) On or about September 12, 1988, interfered with,
restrained and coerced an employee in the exercise of
the employee’s Section 7 rights because of the employ-
ee’s union support and activities.
(c) On or about September 13, 1988, threatened an
employee with unspecified reprisals for engaging in
protected activity.
C. The 8(a)(1) Allegations in Dispute
1. Respondent’s literature distributed from November
10–13, 1987
In support of this allegation, General Counsel offered into
evidence Respondent’s literature distributed before the first
election. In the first employer notice dated November 10,
1987, General Counsel asserts that the following questions
and answers are unlawful.
Q. If the furniture workers call a strike, will I get
paid?
A. No.
Q. If Local 282 calls a strike, can I lose my job?
A. Yes. Under the law the company can continue op-
erating and hire new employees.
The employer notice dated November 12, 1987, contains
the following language:
I firmly believe that the union actually threatens your
job because of its past record of strikes and plant clos-
ing. I also believe that a Union, any union, can destroy
the confidence of our customers in our ability to
produce and deliver on time.
Our customers are very worried about deliveries.
They can switch from one supplier to another when
they feel that they cannot count on timely deliveries.
Our customers, and particularly Fisher-Price, now know
that we can deliver on time. With a union comes the
possibility of a strike. Fisher Price could never be sure
of deliveries again.
There are a number of union-free companies that are
dying to take our Fisher-Price business from us. Higher
Price could move these jobs to its Murray, Kentucky
plant, 250 miles away. I do not believe we could sur-
vive the loss of either the high chair or the car seat.
Fisher Price can take this business away from us at any
time. This could be the end for us. Can we afford to
gamble? Can you take the RISK—simply on the
strength of union promises?
The Union can’t guarantee job security. Hundreds of
thousands of employees of union plants all across the
country are on layoffs or have lost their jobs because
their plant closed. Real job security results from all of
us working together as a team to produce quality prod-
ucts that will be delivered on time. If we don’t get it
to the customer, or the job is not done right, we don’t
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have customers, and without the customers, there is no
job security.
Please VOTE ‘‘NO’’ for REAL job Security!
The employer campaign literature circulated on November
13, 1987, contained in part the following language:
The Union has carefully stated that an employee can’t
be ‘‘fired’’ during a strike. Certainly, an employee can
strike legally and not be fired for it. What the Union
doesn’t tell you is that a company can continue to oper-
ate during a strike and hire permanent replacements for
the strikers. The Company can keep the replacements
when the strike ends and does not have to take the
strikers back. Strikers lose their jobs just like they were
fired.
General Counsel cites the following language in another
employer notice dated November 13, 1987:
‘‘We hope you don’t think that a vote for the union
will automatically increase wages or benefits. Nothing
can be further from the truth.
In negotiations the Company takes into consideration
all its costs and expenses to determine whether or not
it can give any increases in wages or benefits. When
a union comes in, the Company must add to its normal
costs, the lost time and cost of handling grievances and
arbitrations, the daily hassle with the union and its shop
stewards, loss of productivity, and the costs of a poten-
tial strike. The law allows the Company to start over.
We can start bargaining from ZERO. If we lose the
election, we are not required by law to give you what
we planned to do if we had won.
These things are REAL when we sit down at the bar-
gaining table. This is what sometimes makes negotia-
tions so difficult. It is one of the reasons why many
employees have suffered reductions and freezes in pay
and benefits in union plants in the last few years. This
is known as ‘‘roll back’’ and ‘‘concession bargaining’’
which you have seen on television and on the front
pages and newspapers.
The employer notice dated November 14, 1987, contains
the following language:
Have you wondered why the Furniture Workers’
union Local 282 is so touchy about their violent strikes
and plant closings? I think I know because we have
studied their history of unsuccessful negotiations,
strikes and plant closings which have thrown thousands
of employees out of work.
Here is the record of plants represented by this union
that WE KNOW ABOUT that have closed or have
moved in the last few years following strikes, violence
and irresponsible harassing tactics:
Memphis Furniture
Co.
Closed
Abolian Co. Closed
Memphis Dinettes Closed
Framed Picture
Enterprise
Moved to Mississippi
United Uniforms Closed
Harte-Hanks Closed
Trojan Luggage Co. Cut from 700 to 65
employees
The union is telling you that these plants closed or
moved away because of financial problems—THIS IS
A HALF-TRUTH! They’re not telling you the OTHER
half-the cause of these financial problems, namely, long
and unsuccessful negotiations, strikes, violence and
other tactics such as pressuring companies like Sears to
pull their business away. Do you think that all of these
companies closed down because of ‘‘poor manage-
ment?’’
Analysis and Conclusions
General Counsel asserts that the language in the November
10 and 13 notices that Respondent ‘‘does not have to take
the strikers back’’ and that ‘‘strikers lose their jobs just like
they were fired,’’ constitute unlawful threats. He further as-
serts that since Respondent offered no proof that Fisher-Price
intended to withdraw its business from Respondent in the
event of unionization, the statement set forth in Respondent’s
notice dated November 12, 1987, are not protected by Sec-
tion 8(c) and constitute a violation of Section 8(a)(1) of the
Act.
Finally, General Counsel asserts that the threats to reduce
wages and benefits as a result of expending funds to wage
a campaign against the Union which is stated in the Novem-
ber 13, 1987 notice is coercive because there was nothing of-
fered by the Employer to demonstrate that that its conten-
tions are true.
Respondent’s counsel asserts that the leaflets merely set
forth Respondent’s legal position should the Union call a
strike. Referring to permanent replacements does not amount
to an unlawful threat of discharge. He further asserts that the
leaflets do not expressly state that the Employer will with-
hold benefits if the employees select a union. There is noth-
ing unlawful about the Employer setting forth its bargaining
position and explaining the economic realities that attend
thereto. Finally, Respondent’s counsel contends that lighting
other plant closing is not unlawful because there was no pre-
diction that the Employer would close if the employees chose
a union.
When viewed in isolation the Employer’s leaflets are prob-
ably protected by Section 8(c) of the Act. However, all of
these leaflets were distributed during a time when the Em-
ployer engaged in massive admitted 8(a)(1) activity. Specifi-
cally the Employer threatened to close the plant if the em-
ployees voted for the Union. It threatened to take away bene-
fits and reduce wages and informed employees of the futility
of selecting a union. All of these violations and others bear
directly on the language in the leaflets and when viewed in
the total surrounding context, renders the language cited by
General Counsel violative of Section 8(a)(1) of the Act.
Accordingly, I find that the specific language cited by
General Counsel from the Employer’s leaflets distributed
from November 10–14, 1987, violates Section 8(a)(1) of the
Act.
277TROXEL CO.
2. Whether Respondent accelerated and implemented
insurance benefits in violation of Section 8(a)(1) of
the Act
General Counsel offered three witnesses who testified in
support of this allegation. Shirley Cannon testified that be-
fore the first election in 1987 President Michael Terry spoke
to all the employees in the conference room. He told the em-
ployees that he could not talk about raising wages because
of the Union, but he could talk about insurance because he
had been working on that before the Union filed a petition.
According to Cannon, Terry said he had surveyed a number
of plants in the area and the insurance he had planned to
give the employees was better than what they had. Mary
Henderson testified that at one of these meetings in Novem-
ber 1987 Terry told the employees that he was going to
lower insurance costs and increase insurance benefits regard-
less of whether the Union wins the election. Jerry Rogers
testified that in November 1987 Terry spoke to employees
and told them that he was raising their hospitalization.
It was stipulated by the parties that on January 1, 1988,
Respondent implemented a new insurance plan including in-
creased sick leave pay and decreased weekly employee con-
tributions.
Michael Terry testified that the Company’s health insur-
ance policies ran from January 31 to December 31. When he
first became president of the Company in July 1986, he was
aware that the Company’s insurance program was obsolete
since it had not been changed in 18 years. In early 1987, the
Company hired the consulting firm of Johnson and Higgins
to begin a review of its insurance program and propose a
new insurance package. In mid-1987 he ordered personnel to
survey other companies in the area to see what kind of bene-
fits they provided. On August 21, 1987, Johnson and Higgins
proposed that new insurance contracts be effective January 1,
1988. Terry further testified that numerous conversations
where held between himself and Johnson and Higgins before
he decided in late 1987 to implement the new insurance plan
when the old policy expired. We stated that 90 percent of
the policy was complete in June 1987; however, he was still
waiting for other coverage bids to come in which prolonged
the decision to implement.
According to Personnel Director James Russell, during
employee meetings, prior to the union election, many em-
ployees voiced their complaints about the Employer’s insur-
ance program. Terry brought the papers from his office and
explained to them that he had been working on the insurance
program since 1986 and would implement it as soon as pos-
sible. Terry then said it would be effective around the first
of the year.
Analysis and Conclusions
A review of the evidence indicates there is no credible evi-
dence that Respondent promised to accelerate the improved
insurance benefits. Nor is there any credible evidence that
improved insurance benefits were conditioned upon the out-
come of the election.
With respect to the implementation of the insurance bene-
fits on January 1, 1988, it is noted that the first election was
over and the second election was not held until May 10,
1988. Furthermore, the uncontradicted evidence reveals that
Respondent embarked upon this effort long before the advent
of the Union and continued on an unbroken course of action
that culminated in ultimate implementation. In short, the evi-
dence indicates that the implementation would have taken
place at the scheduled time notwithstanding the Union.
Accordingly, I find that General Counsel did not establish
with a preponderance of the evidence that Respondent vio-
lated the Act and I will, therefore, dismiss these allegations.
3. Whether President Michael Terry promised employee
Greg Long a promotion for a ‘‘No’’ vote in the election
Wilma Perkins testified for General Counsel that at a com-
pany-sponsored meeting, in the fall of 1987, Greg Long
asked Michael Terry if he could have a certain job in the
plant if he voted ‘‘no’’ in the election. Michael Terry is al-
leged to have said, ‘‘Yes, contact me later.’’
Jerry Rogers testified that at the same meeting that Greg
Long asked Terry for a job and Terry responded to by asking
him whether he would vote for the Union if he got the job,
Long said no, he would not vote for the Union if he got the
job.
Michael Terry denies that either he or Long made such
statements.
Analysis and Conclusions
Greg Long did not testify, therefore General Counsel is
left with contradictory hearsay testimony which I will not
credit or consider. Accordingly, I will dismiss this allegation.
4. Whether James Russell, on November 19, 1987,
solicited an employee to organize a grievance
committee, promised to form a grievance committee if
employees voted against the Union and on April 10,
1988, informed employees that they would not receive
benefits because of their union activities
Loretta McClure testified for General Counsel that in Jan-
uary 1988 James Russell spoke to her in his office about the
Company’s retirement plan. We had a copy of the plan and
pointed out that if the employees were members of a bar-
gaining unit, they would not be eligible to participate in the
retirement plan. The retirement plan which is dated April 30,
1980, excludes employees covered under a collective-bar-
gaining agreement.
McClure also testified that in October 1987 she went to
Russell’s office to complain about the amount of time and
money wasted in the plant. When she finished what she had
to say, Russell told her the Company needed more people
like her to tell them what was going on because they could
not always be out in the plant. Russell said he had thought
about starting a grievance committee of people like McClure
who were concerned with the Company and the way it was
run. McClure finally testified that she supported the Com-
pany up until 2 weeks before the May 10, 1988 election. Her
boyfriend, Bobby Rhea, was terminated from the Company
2 weeks before she switched allegiance to the Union.
James Russell testified that he told employees he could
have nothing to do with setting up a grievance committee.
Analysis and Conclusions
I find no basis for a threat of reprisal in Respondent’s re-
tirement plan or the remarks of Russell which are one and
the same. The plan was implemented long before the advent
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Union and indicated that a separate retirement plan
would have to be negotiated with the Union for bargaining
unit employees.
In reference to the grievance committee, I find no evi-
dence that Russell promised to establish a grievance com-
mittee, much less, do it if the employees rejected the Union.
Accordingly, I am dismissing these allegations.
5. Whether Respondent, on May 9, 1988, in a notice to
its employees, promised to create a grievance procedure
if its employees voted against the Union
General Counsel witnesses testified that immediately prior
to the second election on May 10, 1988, the following notice
appeared on bulletin boards:
EMPLOYEES
NOTICE
PROPOSAL
GRIEVANCE COMMITTEE
Purpose—To bear grievances from fellow employees
to be final decision maker in cases heard
Objective—To give voice to employees in everyday
working environment
Organization—Committee of seven people elected by
secret ballot from representatives of each department
and elected by that department
Committee re-elected annually
Respectfully submitted by concerned Troxel employ-
ees May 9, 1988.
The notice appeared on Respondent’s stationery and was
similar to other Respondent notices and it was posted on all
Respondent’s unlocked bulletin boards. Katey Linsey testi-
fied she saw the notice before the May 10, 1988 election but
did not know whether she saw it after the election.
General Counsel offered into evidence a company rule
prohibiting the posting of material on bulletin boards unless
specifically authorized by the director of personnel.
The Respondent’s personnel director at that time was
James Russell who testified that the notice in question was
not a company notice and he did not know where it came
from. After he was informed about the notice being on bul-
letin boards, Russell ordered it removed.
Analysis and Conclusion
The evidence does not support the contention that Re-
spondent posted the above notice, rather it supports the con-
tention that ‘‘concerned Troxel employees’’ posted the notice
on May 9, 1988. The credited evidence also supports Re-
spondent’s assertion that it did not condone the notice since
it was ordered removed upon discovery. It is not uncommon
during hotly contested election campaigns to have all kinds
of unauthorized election material and campaign propaganda
distributed or posted throughout the plant. Tracking down
employees who do these things is a wasteful and futile effort.
Accordingly, I am dismissing this allegation.
6. Whether Respondent, in a memorandum dated May
10, 1988, promised unspecified benefits if its
employees rejected the Union
General Counsel relies solely on a memorandum issued on
May 10, 1988, by Jim Russell and Michael Terry. He does
not point specifically to anything unlawful.
The memorandum states in part that with profits everyone
will benefit under Russell and Terry. It further states, ‘‘Send
this Union away and let us put in place our program for ben-
efitting everyone without our bands being tied by the Gov-
ernment on making money and benefit changes.’’
Analysis and Conclusion
I view the above language as permissible free speech.
When read in context, I view the Employer’s statement as
a commitment to continue improving which is not a violation
of the Act. Accordingly, I am dismissing this allegation.
D. The 8(a)(1) and (3) Allegations
1. Alleged discrimination against Ivy Terry
Ivy Terry testified that he has been employed at Respond-
ent’s Moscow plant since 1968. About a month before the
first election in November 1987, Terry wore a union hat, a
union T-shirt, and union buttons to work. He engaged in
union handbilling and served as a member of the Union’s in-
plant organizing committee. In October 1987, Terry was a
forklift operator and asked his supervisor, James Vaughn, if
he could get the mill relief C job. Vaughn said he would
have to take a paycut if he took the new job. Terry declined
the job. In the latter part of October, Board Chairman Robert
Harrison spoke to employees. He told them that lots of
things were going on that he didn’t know about and that he
had just found out that Terry had applied for a job but did
not accept it because of a paycut. He said he was going to
look into that problem and iron it out. Sometime during the
first 2 weeks of November, Terry was taken to the personnel
office where he met with James Russell and General Fore-
man Jerry Culver. Culver apologized to Terry for the mistake
and offered him the new relief job with no pay cut. Terry
said he would think about it and a week later accepted the
job which provided an increase of 44 cents per hour. Nothing
was mentioned about the Union in their conversation.
On February 17, 1989, Supervisor Michael Johnson called
Terry into his office and, in front of Supervisors Jerry Culver
and Raymond Bryant, told Terry that he had complaints from
other employees that Terry was inquiring about Leerell
Shields’ suspension. Johnson asked Terry if had done this
and Terry said yes. Johnson told Terry that it was against
company policy to do this and said the incident would go
into his file.
Betty Denham, personnel director since January 1989, tes-
tified that after she read the ‘‘report of discussion’’ with
Terry filed by Johnson the next day, she explained to John-
son that she thought there was a misunderstanding concern-
ing the rule against soliciting employees while either person
is on working time. Shortly, thereafter Denham called Terry
into her office and explained that he was permitted to talk
to other employees as long as it was not on work time. She
also told Terry that she was removing the ‘‘report of discus-
279TROXEL CO.
sion’’ from his file. The ‘‘report of discussion,’’ which was
neither a verbal nor written warning, was removed from Ter-
ry’s file that day.
Analysis and Conclusions
I can find no evidence of a promise of promotion if Terry
withheld his support for the Union. Furthermore, I find insuf-
ficient evidence that Terry was promoted to induce him not
to support the Union. Apparently, a mistake was made and
corrected by Respondent which led to Terry’s upgrade, not-
withstanding his union activities.
I find that General Counsel did not prove that, in fact, a
written warning was issued to Ivy Terry. Respondent’s evi-
dence, which I credit, revealed that Terry was questioning
employees at their work stations about the discharge of
Leerell Shields. Michael Johnson counseled Terry about
bothering employees while at work and placed a report of
this discussion in his personnel file. The evidence established
that, at most, Terry’s filed contained a ‘‘report of discus-
sion’’ for 1 day. Reports of discussion do not amount to dis-
cipline. Moreover, Denham took immediate remedial action
by informing Terry of the correct company policy and that
she had removed the nondisciplinary report.
Accordingly, I am disclosing all the above allegations re-
lating to Ivy Terry.
2. Whether Respondent ceased paying production pay
to Ivy Terry and Charles Allen for performing relief
work because they supported the Union
Charles Allen has been relief man on first shift for 8
years. He distributed union handbills at the plant prior to
both elections. He wore union buttons, cap, and T-shirt to
work before both elections. As a relief man, he was supposed
to either help out, relieve, or be assigned to the yoder mill
machine. In the past when his supervisor had him perform
one of these functions, Allen testified that he was paid pro-
duction pay instead of the hourly relief, rate (production rate
is usually higher then hourly rate). According to Allen and
Terry, the Respondent stopped paying them production pay
in April 1989 for about 1 week. Allen claims he lost about
$20.
Ivy Terry claims he was taken off production rate after he
testified at this hearing on March 23, 1989.
General Foreman Jerry Culver testified that there are three
different functions a mill relief operator performs:
Relief, when he relieves an operator for lunch, breaks
or when the operator has to be temporarily away from
his machine.
Helping out, when during a slack period the relief man
helps out on the mill until needed for relief.
Assignment, when the relief operator is assigned to a
mill machine for the duration of the day or the duration
of a job.
Culver testified that for the past 25 years he has been at
Troxel, mill relief operators are not paid production rate
when they are relieving or helping out. But they do receive
production rate on assignments. On those occasions the mill
relief operators name is put on the mill report.
Supervisor Raymond Bryant testified that on one occasion
Terry’s name was placed on a mill report when he was only
helping out. After that Bryant told Terry that he should not
put his name on the mill report when he was relieving a mill
operator.
Respondent’s records indicate that from April 1–26, 1989,
Terry received production pay seven times and for the same
period Allen received production pay three times.
Analysis and Conclusions
The evidence does not reveal that Terry and Allen where
treated any differently from any of the other operators. The
unrefuted evidence is that Respondent does not apply the
production rate to relief or helping out work, but only to as-
signment work. The evidence also reveals that there was
some confusion in communicating this company policy to
Terry and Allen which was compounded when Respondent
inadvertently paid Terry for relief work. However, I find that
there is insufficient evidence to establish a discriminatory ap-
plication of production pay on the part of Respondent. There-
fore I conclude that Respondent has carried its Wright Line
burden.
Accordingly, I will dismiss these 8(a)(3) and (4) allega-
tions.
3. Whether Respondent more stringently enforced its
timecard punching rule and suspended employees in
order to discourage them from supporting the Union
On or about April 5, 1988, Respondent maintained the fol-
lowing rule:
Intentionally punching the time card of another em-
ployee or permitting someone else to clock your card,
soliciting, causing other employees to punch timecards
other than their own, is considered a serious rules in-
fraction and may be cause for dismissal.
On April 4, 1988, Respondent suspended Altener Shields,
Thelma Loftis, Linnie Henderson, and Mary Franklin for 10
days and Linda Mason, on April 15, 1988, for 2 weeks for
violating the above rule. Respondent’s counsel admitted that
Respondent had prior knowledge of their union activities.
Respondent’s counsel also admitted that stricter and incon-
sistent enforcement of the rule was applied to these individ-
uals because supervisors namely, John Crisp, had prior
knowledge that employees clocked other employees in or out
at the beginning or at the end of a shift.
Betty Denham testified that 1 year after the suspensions,
when she was preparing for this trial, she discovered that su-
pervisors where allowing employees to punch each other’s
timecards. As a result of this discovery, Respondent paid the
above employees backpay for the time they were suspended
and expunged the discipline from their personnel files.
Analysis and Conclusions
Respondent asserts that since the Employer’s more strin-
gent enforcement of timecard rules was for a legitimate busi-
ness reason and since they made the employees whole for the
disparate treatment accorded them, Respondent did not vio-
late the Act.
I disagree with Respondent’s assertion because of the tim-
ing of the suspensions, the length of time it took to remedy
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the situation, and the fact that no repudiation of its action
was published and no assurances were given that Respondent
would not interfere with employees’ Section 7 rights.
Accordingly, I find that Respondent violated Section
8(a)(1) and (3) of the Act when it suspended the above em-
ployees and failed to take proper corrective action.
4. Whether Respondent granted pay increases to
discourage union activity
General Counsel presented one witness, Edward Steele,
employed at Troxel, who testified that at a company meeting
with employees about November 1, 1987, James Russell told
the employees the Company could give no raises. Steele
asked about his 90-day raise which was then 1-1/2 overdue.
Russell said he would check into the matter and get back to
Steele in 2 days. Two days later, Steele received his raise.
Respondent presented evidence through Betty Denham that
before 1987 the Company had a policy of granting progres-
sion increases according to a wage schedule until the em-
ployee reached the job rate. Shortly after Denham became
personnel assistant, in December 1986, it was discovered that
as many as 100 employees were late in receiving their pro-
gression increase. She and Russell immediately began ap-
proving raises so that over the next 3 months, they believed
everyone had caught up.
Respondent’s records indicate that Steele was reclassified
on May 18, 1987, and sometime after November 9, 1987, he
received a progression raise.
Analysis and Conclusions
The Respondent’s policy of granting progression increases
was in effect long before the advent of the Union. Respond-
ent’s policy of catching up or paying overdue progression in-
creases also predated the Union. Respondent’s uncontradicted
evidence indicates that it dealt with the Steele raise just as
though no union was in the picture. Significantly, this was
the only allegation of unlawful pay increase out of a unit of
600 employees.
Accordingly, I will dismiss this allegation.
5. Whether Respondent on March 28, 1988,
promulgated a new disciplinary procedure to discourage
employee support for the Union
The evidence presented came from Respondent’s wit-
nesses, James Russell and Betty Denham. Russell became
personnel director in November 1987. The testimony re-
vealed that Respondent had an employee handbook in effect
with a code of conduct listing 19 offenses which required
immediate dismissal without prior warning, unless manage-
ment found extenuating circumstances and 13 offenses which
required either verbal or written warning; however, repeated
offenses would raise these to a major violation. On Novem-
ber 28, 1988, Russell issued ‘‘Guidelines for Disciplinary
Procedures’’ to supervision wherein discipline was estab-
lished for first offenses through fifth offenses. For example,
15 offenses required discharge for a first violation, while
committing traffic violations and smoking or eating while
operating machinery or working mandated discharge on the
fifth offense. The guideline was never intended to replace the
handbook or code of conduct but to promote consistency and
fairness in discipline. Prior to the issuance of the ‘‘Guide-
line,’’ the degree of discipline was discretionary with the su-
pervisor for many offenses. The code of conduct was used
as a basis for a ‘‘guideline’’ and nothing in the ‘‘guideline’’
could be used to neutralize the code of conduct, e.g., a dis-
chargeable offense was still a dischargeable offense. Russell
testified that after issuing the ‘‘guideline’’ to supervision, he
reviewed discharges and suspensions and found them to be
consistent with the guidelines.
Analysis and Conclusions
General Counsel asserts that by issuance of the ‘‘guide-
line’’ an inference may be drawn that Respondent violated
the Act when it is done during an organizational campaign
and Respondent fails to show, by objective evidence, that
changes were motivated by considerations other than union
activity. I find that Respondent has satisfied that requirement.
The code of conduct does not address progressive discipline
whatsoever. Furthermore, the code leaves much of the dis-
cipline to the discretion of supervisor. The guideline attempts
to correct these problems in an evenhanded way.
It is noteworthy that General Counsel did not offer any
evidence that the guideline was used to discriminate against
any employee. Nor was any evidence offered that any em-
ployee ever saw the guidelines. Therefor, it is difficult to see
how promulgation of the guideline which was merely a re-
finement of the code of conduct, discouraged employees
from joining, supporting, or assisting the Union.
Accordingly, I will dismiss this allegation.
6. Whether Respondent promulgated and implemented a
more restrictive disciplinary policy to discourage
employees from supporting the Union
The evidence reveals that the employee handbook code of
conduct which was issued prior to the union campaign called
for verbal and written warnings for attendance violations and
that repeated infractions would be considered a major viola-
tion.
Russell testified that for the past 2 years he noticed an in-
crease in absenteeism especially on the second and third
shifts causing the Company to shut down one line or depart-
ment to supply employees to operate another line or depart-
ment. Supervisors were complaining that they could not
maintain production with such a high absentee rate. Betty
Denham testified that attendance had become such a problem
that production lines had to be shut down. She also stated
that the existing policy was unfair to employees who re-
ported to work because they would lose incentive pay due
to the absence of others since employees were paid group in-
centive rates. Russell stated that the existing absentee policy
was not policy at all because in practice it left discipline up
to the supervisors who applied it inconsistently based on
whether the particular supervisor liked or disliked the em-
ployee. Russell further testified that although he had been
working on a new attendance policy since early 1987 he was
in no position to implement such a policy until after Novem-
ber 1987 when he became personnel director. According to
Russell and Denham, the new attendance policy was imple-
mented and distributed to all employees on January 11, 1988,
in order to improve attendance, production, and to eliminate
favoritism. The new attendance policy called for one-half
point being assessed for tardiness and one point being as-
281TROXEL CO.
sessed for more than 4 hours’ absence. An employee could
accumulate 10 points in a given year with no disciplinary ac-
tion. After that, the following discipline would be assessed:
11 points verbal warning, 12 points written warning, 13
points 3 days’ suspension, 14 points 10 days’ suspension, 15
points discharge. Monetary awards were given for good at-
tendance.
General Counsel offered the testimony of four employees
who engaged in union activity at the Respondent’s plant and
were disciplined under the new policy. Arthur Hobson was
given a verbal warning on November 30, 1988, and a written
warning on December 13, 1988. Roosevelt Humphrey was
suspended on August 5, 1988. Betty Lewis was issued a
verbal warning on September 12, 1988, although she had a
doctor’s excuse which should have exempted her from re-
ceiving any points. Linell Settles testified he was absent from
work on January 29, May 18, and June 6, 1988, and sub-
mitted doctor’s statements to the Company each time.
Betty Lewis testified that she received a verbal warning
after receiving 11-1/2 points. However, Betty Denham testi-
fied that this verbal warning was rescinded after a mistake
was discovered when preparing documents for trial, giving
her only 10-1/2 points. Roosevelt Humphrey admitted that he
had enough points under the new policy to warrant a 3-day
suspension. Arthur Hobson testified that he had received a
verbal warning, not a written warning and that he had 8 or
more points.
Linell Settles testified he only missed 1 day in 1988 that
was not covered by a doctor’s excuse. The balance of the ab-
sence time, according to Settles, was covered by doctor’s
statements. The 1 day he was absent with no excuse was in
early December 1988.
Respondent offered documentary evidence that 47 employ-
ees were disciplined under Respondent’s new policy and
none of those employees were on the in-plant organizing
committee which totaled 30 employees. However, Denham
identified 14 employees on a list of employees disciplined
that she noticed wearing union insignia sometime during the
union campaign.
Analysis and Conclusions
General Counsel offered no evidence that Respondent pro-
mulgated its absentee policy in order to discourage member-
ship in a labor organization. On the other hand, Respondent
offered uncontradicted evidence that it implemented its ab-
senteeism policy for legitimate business reasons.
In applying the policy, General Counsel offered the testi-
mony of four out of nine employees alleged to have been
discriminated against. Of the four employees, three admitted
that the discipline was justified. Furthermore, all the docu-
mentary evidence supports Respondent’s contention that all
employees were treated uniformally regardless of their union
activity. Since no other evidence was offered by General
Counsel with respect to any other employees, I must agree
with Respondent.
The only employee who may have been unfairly treated
was Linell Settles. Settles testimony was confusing and con-
flicting; however, he did offer doctor’s excuses into evidence
to cover his absences which according to Respondent’s new
policy would exempt him from accruing points. He further
testified that he only missed one unexcused day in early De-
cember 1988. This was not refuted by Respondent’s counsel.
A close examination of Settles’ record indicates that he re-
ceived verbal and written warnings and a 3-day suspension
on March 28, 1988, none of which were alleged to be viola-
tions. Therefore the presumption is that he had accumulated
13 points and should have received the discipline. Settles
also stated that he had an unexcused absence in early De-
cember which would have given him 14 points requiring a
10-day suspension in December—not a discharge. Respond-
ent argues in brief that Settle’s absence record shows 27-1/2
points at time of discharge; however, my records and the
records of the reporting service indicate that Settle’s absentee
record was withdrawn from evidence and never resubmitted.
Linell Settles stated that his union activity consisted of
wearing union T-shirt and buttons to work before the first
election. Later, he testified that he did not wear T-shirts and
buttons until after his 3-day suspension on March 28, 1988.
His union activity was at best minimal and would not have
stood out as anything exceptional because it could not be dis-
tinguished from that of hundreds of other employees. There-
fore, I conclude that General Counsel did not prove with a
preponderance of evidence that Settles’ union activity was
the cause of his discharge. Accordingly, I will dismiss these
8(a)(1) and (3) allegations.
7. Suspension of Janey Harris
Respondent admits suspending Harris for 1 day on April
4, 1988, for distributing a union leaflet to an employee dur-
ing her break. Respondent further admits that in this case it
applied its no-distribution, no-solicitation rule in a disparate
manner. In preparation for this trial, Respondent learned that
other employees had been known to solicit during working
time and that no disciplinary action had been taken. There-
fore Respondent paid Harris for the day she was suspended
and removed the suspension from her personnel file.
Analysis and Conclusion
I disagree with Respondent’s assertion that it did not vio-
late the Act because it remedied the violation for reasons
stated above in paragraph 3. Namely: timing of the suspen-
sion, length of time it took to correct the violation, no pub-
lished repudiation, and no assurances were given to employ-
ees that Respondent would not interfere with their Section 7
rights.
Accordingly, I find that Respondent violated Section
8(a)(1) and (3) of the Act when it suspended Janey Harris
and failed to take proper corrective action.
8. Refusal to hire Tyrone Henderson
Tyrone Henderson filed an application for employment
with Respondent on February 16, 1988. Respondent had an
established practice of employing relatives of employees. In
addition to Henderson’s mother, Robertha Henderson, who
had worked 21 years for Respondent, Respondent also em-
ployed Henderson’s three sisters, Christine, Mary, and
Deliane. These employees wore union T-shirts and other
union insignia to work prior to the November 1987 election.
Mary and Deliane Henderson distributed union literature
prior to the November 1987 election.
Robertha Henderson testified that in March 1988 she
asked Personnel Director Russell to hire her son. According
to Robertha, Russell told her the Company had not hired her
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
son because the daughters were participating in the Union
and costing the Company money.
Russell testified that he had a conversation with Robertha
Henderson wherein she asked him to hire her son Tyrone.
Russell told her to see Assistant Personnel Director Betty
Denham because he did no hiring and received no employ-
ment applications. Russell also testified that prior to the hear-
ing, he had never seen Tyrone Henderson or his application,
nor did he know when the application was submitted. Russell
stated that he had no conversation with Denham about Ty-
rone and only after charges were filed did he ask Denham
to check to see if Tyrone had filed an application.
Betty Denham testified that the selection process begins
when a written requisition is received from a supervisor in
the department with an opening. She explained that she does
not interview anyone when they file an application. When
openings occur, she looks through the stack of applications
for someone with relevant experience or persons with indus-
trial backgrounds and as a last resort persons with no experi-
ence. Denham stated that she would go through the applica-
tions in whatever order they were in, calling every qualified
applicant she came to until enough applicants were hired to
fill the openings. Ten to twenty employees a day asked
Denham to hire their relatives or friends. In response to their
request Denham asks that the relative or friend file an appli-
cation and that she would tab it for easy identification. And
if there is an opening, the friend or relative will be consid-
ered. Denham was unaware that Tyrone Henderson had filed
an application until after charges were filed and an investiga-
tion was conducted. She did not know why he was not hired
and she did not consciously pass over him. At the time Ty-
rone’s application was on file, there were 271 other applica-
tions on file waiting to be processed. According to Denham,
she did not screen out applicants if they had relatives who
were union supporters. In fact, she hired the brother of Loret-
ta McClure, a known union supporter, and numerous rel-
atives of union supporters.
Analysis and Conclusions
There is insufficient evidence that Respondent refused to
hire Tyrone Henderson because of the union activities of his
relatives. But for the uncorroborated statement attributed to
Russell by Robertha Henderson, there is no evidence that Re-
spondent discriminatorily refused to hire Tyrone. I will his
credit Robertha’s testimony because it is biased and unsup-
ported by all the evidence. Noteworthy is the lack of evi-
dence that Robertha ever asked Betty Denham to hire Tyrone
when Denham was the only person who could have satisfied
her request.
Accordingly, I will dismiss this allegation.
9. Suspension and discharge of Leerell Shields
Shields began his employment with Respondent on June
20, 1984. At the time of his discharge on February 10, 1989,
his job consisted of using a hand-operated bander. He
worked from 3:25 to 11:55 p.m. Respondent admits to
knowledge of Shields’ union activity. On February 10, 1989,
the employees in Shields’ department gathered to celebrate
the receipt of a housekeeping award. Shields refused to join
the other employees but did approach the area to speak to
his supervisor, Clinton Pye. While there, Vice President of
Human Relations David Moore asked Shields about his wife
who had just had a baby. Moore also asked his if he was
going to attend the meeting in Memphis to open the chal-
lenged ballots. Around 4:30 or 5 p.m. Pye asked Shields to
join the gathering but Shields refused. At the time Pye
smelled alcohol on Shields and noticed that his speech was
slurred. Pye reported this to his supervisor, Wilson Ray, who
in turn reported it to Betty Denham telling her that they
should deal with the situation now because Shields might get
hurt. (Shields operates a bander having two 6-inch blades
and no safety guard). Shields was taken to the personnel of-
fice by Pye. Present were Moore, Ray, and Denham. During
the course of this meeting Denham asked Shields if he had
been drinking. First Shields said he had one beer. Then he
said he had two beers and later said he had some beers.
Shields was asked if he knew the rule about working while
intoxicated and he said he did. Denham offered, as part of
standard procedure, to give Shields a sobriety test but Shields
refused. Shields mentioned that employee Calvin Sullivan
had been under the influence while at work and not been dis-
ciplined. Denham said she would suspend Shields pending an
investigation. The investigation revealed that in September
1988 Sullivan never started work while intoxicated but re-
ported to the guard that he was unable to work. After this
investigation Shields was informed that he was discharged.
Analysis and Conclusions
The evidence supports a finding that Respondent has satis-
fied its Wright Line burden that it would have discharged
Shields notwithstanding his union activities. General Counsel
offered evidence that Jerome Grandberry had reported to
work while intoxicated and not been discharged. However
Grandberry, like Sullivan, had not clocked in and started
work.
Respondent admits there were inconsistencies in the drink-
ing policies several years ago when Barney Raines was per-
sonnel director. However, evidence disclosed no disparate
treatment when a supervisor discovers an employee working
under the influence of alcohol or drugs. Accordingly, I will
dismiss this allegation.
10. Reprimand and suspension of Ralph Schrimsher
Ralph Schrimsher served as a union observer at both
NLRB elections. He also distributed prounion literature in
the parking lot. On February 23, 1988, Schrimsher’s super-
visor, Larry Eskew, told him he regarded himself as a union
executive.
On March 7, 1989, Schrimsher was suspended for 10 days
in accordance with company handbook rules and disciplinary
guidelines against spreading false and malicious gossip.
James Russell was told by Guard Supervisor Gus Loftis
that Ralph Schrimsher told Loftis that Jessie Milligan was
suspended for engaging in an altercation with Mary Harris
over the collection of empty aluminum cans. Since Milligan
was prounion and Harris was not, it would cost the Company
votes in the next election. Russell called a meeting with
Schrimsher, Supervisor Larry Eskey, Loftis, Milligan, and
Harris. Loftis repeated the allegation in front of Schrimsher
who admitted making the statement. It was further discov-
ered that there was no truth in the story. During the meeting,
employee Ricky Pierce was called in and asked about the
283TROXEL CO.
1 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.
rumor. He said Schrimsher had told him the same story
which Schrimsher did not deny.
After ascertaining that Mary Harris took a voluntary layoff
and that the Company had a past practice of disciplining em-
ployees for spreading false and malicious gossip, Russell sus-
pended Schrimsher.
On March 29, 1989, Supervisor Larry Eskew issued a
verbal warning to Ralph Schrimsher for negligently operating
his machine.
Larry Eskew testified that Schrimsher had operated his
machine with a stay-clamp lodged in it thus causing a broken
die. Eskew accused Schrimsher of operating the machine
when he should have known something was wrong because
of his long experience as a machine operator. Eskew also ac-
cused Schrimsher of not informing him that the die was bro-
ken.
Schrimsher testified that while the die on his machine was
broken, this was a common occurrence. Apparently no one
had ever been disciplined for breaking a die.
Analysis and Conclusions
The evidence supports a finding that Respondent met its
Wright Line burden on the 10-day suspension. Respondent
conducted a fair investigation and discovered that Schrimsher
had told a story about the Company and other employees
which was untrue. Schrimsher admitted relating the story to
others when he did not know whether it was true or not. Re-
spondent applied the discipline called for in its guidelines.
General Counsel argues that others also spread this rumor
and there was no showing that Schrimsher’s statements inter-
rupted production, caused any strife among employees or
was detrimental to Respondent’s business. I can find no evi-
dence as to who the ‘‘others’’ were. The evidence pointed
the finger at Schrimsher. I am further of the opinion that dur-
ing a union organizational campaign as hotly fought as this
one, that rumors such as this would have a damaging effect
on employee morale. In fact, this rumor appears to have
found its way into a union leaflet disparaging the Company
for its disparate treatment of employees.
In reference to the verbal warning, I conclude that again
Respondent satisfied its Wright Line burden by proving that
Schrimsher’s negligence contributed to the broken die. He
was verbally warned in accordance with the Company’s dis-
ciplinary guideline. Significantly, 2 days after the warning
incident, Schrimsher’s machine broke another die; however,
he was not disciplined for this occurrence because
Schrimsher’s supervisors determined that there was nothing
Schrimcher could have done to prevent it from happening or
even known about the pulled slugs. Furthermore, the evi-
dence indicates that broken dies are not commonplace and
are expensive to repair. However, broken punches are a fre-
quent occurrence and are easily repaired at little cost. I credit
Supervisor Larry Eskew’s testimony over Schrimsher on this
contradiction.
Accordingly, I conclude that no violations were committed
and I will dismiss these allegations.
CONCLUSIONS OF LAW
1. Respondent Troxel Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Furniture Workers Division, Local 282, International
Union of Electronic, Electrical, Salaried, Machine and Fur-
niture Workers, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Interrogating employees regarding union activities and
sympathies.
(b) Impliedly promising employees improved benefits if
employees withheld their support for the Union.
(c) Soliciting employee complaints and grievances and
providing unspecified improvements in terms and conditions
of employment if employees rejected the Union.
(d) Threatening employees with unspecified reprisals.
(e) Informing employees of the futility of selecting a
union.
(f) Promising employees improved wages and benefits if
they rejected the Union.
(g) Threatening to withhold benefits if its employees se-
lected a union.
(h) Threatening plant closure if employees selected a
union.
(i) Creating the impression, among employees that their
union activities are under surveillance.
(j) Threatening an employee with discharge if he contin-
ued to display a union emblem.
(k) Maintaining and enforcing a solicitation and distribu-
tion rule in a disparate manner.
(l) Maintaining and enforcing a timeclock rule in a dis-
parate manner.
(m) Granting benefits to employees to discourage their
support of the Union.
(n) Distributing literature which impliedly promised bene-
fits and threatened reprisals to discourage union support.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by suspending Altener Shields, Thelma Loftis, Lenny Hen-
derson, Mary Franklin, Linda Mason, and Jani Harris.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
6. All other allegations not mentioned above are not found
to be violations of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent discriminatorily suspended certain employees
and made restitution in backpay for the suspensions and ex-
punged the suspensions from their files. Therefore it is only
necessary to verify that these things have in fact been done
in accordance with Board law.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, the Troxel Company, Moscow, Ten-
nessee, its officers, agents, successors, and assigns, shall
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
1. Cease and desist from
(a) Interrogating employees rewarding union activities and
sympathies.
(b) Impliedly promising employees improved benefits if
employees withheld their support for the Union.
(c) Soliciting employee complaints and grievances and
promising unspecified improvements in terms and conditions
of employment if employees rejected the Union.
(d) Threatening employees with unspecified reprisals.
(e) Informing employees of the futility of selecting a
union.
(f) Promising employees improved wages and benefits if
they rejected the Union.
(g) Threatening to withhold benefits if its employees se-
lected a union.
(h) Threatening plant closure if employees selected a
union.
(i) Creating the impression among employees that their
union activities are under surveillance.
(j) Threatening an employee with discharge if he contin-
ued to display a union emblem.
(k) Maintaining and enforcing a solicitation and distribu-
tion rule in a disparate manner.
(l) Maintaining and enforcing a timeclock rule in a dis-
parate manner.
(m) Granting benefits to employees to discourage their
support of the union.
(n) Distributing literature which impliedly promised bene-
fits and threatened reprisals to discourage union support.
(o) Suspending employees in a disparate and discrimina-
tory manner for violating the timecard and distribution rules.
(p) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) 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.
(b) Post at its facility in Moscow, Tennessee, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.