Anderson Cabinets

National Labor Relations Board - Board Decisions

Mar 28, 1979

241 N.L.R.B. 513 (N.L.R.B. 1979)

ANDERSON CABINETS
Robert E. Anderson and Richard E. Anderson, co-
partners d/b/a/ Anderson Cabinets and Carpenters
District Council of Greater St. Louis, AFL-CIO.
Cases 14-CA-11167, 14-CA-11420. and 14-CA
11454
March 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY. AND TRUESDALE
On August 31, 1978, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the Charging
Party filed a brief in answer to the Respondent's ex-
ceptions.
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 the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.3 as modified herein.
' The Administrative Law Judge found, inter alia. that Respondent vio-
lated Sec. 8(a)H1) of the Act "by imposing more onerous working conditions
because the employees, through their bargaining representative. enforced the
terms and conditions of the outstanding collective bargaining agreement." In
reaching this conclusion, the Administrative Law Judge relied on the cred-
ited testimony of several former employees that Respondent's then supervi-
sor, Jim Anderson. made statements to the effect that he was going to run the
shop "by the book," that he had obtained information about writing up
disciplinary slips, and that employees would no longer have permission to
attend to personal matters such as getting sodas and smoking on company
time. However. the record does not establish that these threats were imple-
mented, and the complaint alleges only that Respondent threatened more
arduous working conditions if the Carpenters was retained as bargaining
representative. Accordingly, we do not adopt the Administrative Law
Judge's finding that more onerous working conditions were imposed but find
that Respondent threatened to impose them in violation of Sec, 8(aX I) of the
Act.
2 Member Murphy notes that the Administrative Law Judge's statement,
"It is well established that the filing of a decertification petition, standing
alone, does not justify an employer in withdrawing recognition from an in-
cumbent union." appears to be contrary to the Board's decision in Telaulo-
graph Corporation. 199 NLRB 892 (1972). However, this misstatement does
not affect the result herein, as Respondent clearly withdrew recognition in
the context of its unlawful conduct
The Administrative I.aw Judge. in his recommended remedy and Order,
treated discnminatee Floyd T. Wildhaber as an unlawfully discharged work-
ing employee rather than as an unlawfully discharged striker, recommending
that Wildhaber be made whole for losses suffered by reason of Respondent's
discrimination against him without any requirement that such backpay com-
mence only upon Wildhaber's unconditional application for reinstatement.
Members Jenkins and Truesdale agree with the Administrative Law Judge's
recommended remedy in this regard, for the reasons set forth in the Board's
recent decision in Abilities and Goodwill. Inc., 241 NLRB 27 (1979-Mem-
bers Penello and Murphy dissenting). Member Murphy, however, as dis-
cussed in the dissenting opinion in Abilities and Goodwill, Inc., would not
grant backpay from the time of Wildhaber's discharge, but would find any
backpay obligation of Respondent to commence only at the time that Wild-
haber made an unconditional offer to return to work.
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 Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Robert
E. Anderson and Richard E. Anderson, co-partners
d/b/a Anderson Cabinets, St. Louis, Missouri, their
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph (h):
"(h) Threatening to impose more onerous terms
and conditions of employment if its employees re-
tained Carpenters as their exclusive bargaining repre-
sentative."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL. NOT coercively interrogate employ-
ees concerning their union activities.
WE WILL NOT threaten employees with plant
closure or loss of benefits unless they abandon
their support for the Carpenters.
WE WILL NOT promise employees increases in
wages or benefits if they abandon their support
for the Carpenters and select some other labor
organization as their collective-bargaining repre-
sentative.
WE WILL NOT sponsor the circulation and fil-
ing of a decertification petition.
WE WILL NOT threaten to relocate the plant to
a place where the Carpenters would be unable to
act as collective-bargaining representative.
WE WILL NOT threaten to impose more oner-
ous terms and conditions of employment if our
employees retain Carpenters as their exclusive
bargaining representative.
WE WILL NOT threaten to close the plant if
employees refuse to return sums of money re-
ceived as settlement of a wage restitution claim.
WE WILL NOT tell employees that their union
activities are the subject of company knowledge
and surveillance.
WE WILL NOT discourage membership in and
activities on behalf of Carpenters' District Coun-
cil of the Greater St. Louis Area, AFL-CIO, by
241 NLRB No. 72
513
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging or otherwise discriminating against
employees in their hire or tenure.
WE WI.L NOT by any other means interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
WE WIL.1. recognize and bargain collectively
with Carpenters' District Council of the Greater
St. Louis Area, AFL-CIO, as the collective-bar-
gaining representative of all our production and
maintenance employees, exclusive of office cleri-
cal employees and supervisors, and if we reach
an agreement. WE WIL.L embody the terms of that
agreement in a signed written instrument.
WE WILL offer to Floyd T. Wildhaber full and
immediate reinstatement to his former position
or, in the event that the position no longer exists,
to substantially equivalent employment, without
prejudice to his seniority and other rights and
privileges previously enjoyed, and WE WILL make
him whole for any loss of pay or benefits which
he suffered by reason of the discrimination prac-
ticed against him, with interest.
ROBERT E. ANDERSON AND RICHARD E. AN-
DERSON; CO-PARTNERS D/B/A ANDERSON
CABINETS
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WAI.TER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me at St. Louis, Mis-
souri, upon a consolidated unfair labor practice complaint,'
issued by the Regional Director for Region 14, which al-
leges that the Respondent, Robert E. Anderson and Rich-
ard E. Anderson, copartners d/b/a Anderson Cabinets,'
violated Section 8(a)(1), (3), and (5) of the Act. More partic-
ularly, the Consolidated Complaint alleges, inter alia, that
the Respondent threatened employees with more onerous
i The principal docket entnries in this case are as follows: Charge filed
against Respondent by Carpenters' District Council of Greater St. Louis,
AFL-CIO (herein called Union or Carpenters), in Case 14-CA-I11167 on
February 23, 1978, and amended charge filed against Respondent by Union
in Case 14-CA- 11420 on May 3, 1978; charge filed against Respondent in
Case 11454 on May 12, 1978; consolidated complaint issued by Regional
Director for Region 14, on June 2, 1978; Respondent's answer filed on June
12, 1978; hearing held in St. Louis, Missouri, on June 20 and 21, 1978; briefs
filed with me by the General Counsel, the Charging Party. and the Respon-
dent on August 7, 1978.
2 Respondent admits, and I find, that it is a partnership which maintains
its place of business in St. Louis, Missouri, where it is engaged in the manu-
facture, sale, distribution, and installation of wood cabinets. During the year
ending December 31, 1977, a representative period, Respondent derived
gross revenues in excess of $500,000 and purchased at its St. Louis, Missouri,
plant goods and merchandise indirectly from points and places outside the
State of Missouri valued in excess of $50,000. Accordingly, Respondent is an
employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7)
of the Act. The Union and the Congress of Independent Unions (CIU) are
labor organizations within the meaning of Sec. 2(5) of the Act.
working conditions if they retained the Union as their bar-
gaining agent, promised employees benefits if they would
abandon their support of the Carpenters, created an im-
pression among employees that their union activities were
subject to company knowledge and surveillance, threatened
to close the plant if employees failed to return to the Com-
pany certain sums received as a result of a settlement of an
unfair labor practice case and a civil action between the
Union and the Respondent, solicited support for and filed a
decertification petition aimed at removing the Carpenters
as the bargaining agent, and coercively interrogated em-
ployees about their union activities. The Consolidated
Complaint further alleges that the Respondent refused to
bargain collectively with the Union as the bargaining agent
for its production and maintenance employees and that it
discharged Floyd T. Wildhaber because of his union activi-
ties. The Respondent denies the commission of independent
violations of Section 8(a)( ) of the Act, contends that Wild-
haber quit his employment, and justifies its refusal to bar-
gain with the Union on the basis that it had, and continues
to maintain, a good-faith doubt as to whether the Carpen-
ters is the majority representative of its employees. Upon
these contentions the issues herein were joined.
The Unfair Labor Practices Alleged
The Respondent is a partnership of two brothers, gener-
ally referred to as Bob and Rich Anderson, who operate a
small cabinet manufacturing shop in St. Louis. They manu-
facture and assemble kitchen cabinets and install them at
various building sites throughout the metropolitan area.
They employ about 7-10 employees, some of whom are
related to them by blood or marriage. Although the Re-
spondent is not a member of the Associated Cabinet Shops
of St. Louis, in 1976 it became a signatory to a 3-year agree-
ment concluded between this Association and the Carpen-
ters. The agreement covered its production employees and
expired on April 30, 1978.
In July 1977, Carpenters Business Agent Larry Coleman
came to the Respondent's shop to investigate allegations
that the Respondent was continuing to pay less than the
union scale and was failing to meet its obligation to make
health and welfare payments. He was denied access to the
Respondent's books and was refused permission to speak
with the Respondent's employees. On August 2, 1977, the
Union wrote to the Respondent, accusing it of serious con-
tract violations. On August 3, 1977,3 the Respondent's shop
was visited by a representative of the Congress of Indepen-
dent Unions (CIU) for the purpose of organizing the Re-
spondent's employees. I credit the testimony of former em-
ployee Robert Meenan to the effect that Jim Anderson,
brother of the owners and shop foreman during the summer
and fall months of 1977,' advised him in advance of the
arrival of the CIU representative that he was coming. The
CIU agent came to the premises with the knowledge and
permission of the owners and was introduced to employees
3 The first charge herein was filed on February 23, 1978. Hence, any events
taking place before August 23, 1977, may be relied upon by the General
Counsel only as evidence of animus, since they occurred before the com-
mencement of the 10(b) period.
4 . Anderson is an admitted supervisor during this period of time.
514
ANDERSON CABINETS
by J. Anderson. The shop employees listened to the CIU
spokesman as he outlined for them the benefits of CIU
membership. After concluding his remarks, he passed out
CIU cards, which employees signed and returned. After
leaving the plant, he called Bob Anderson and told him
that he had collected designation cards from the employees
who were present. On or about August 8, the CIU filed a
representation petition (14-RC-8549) seeking to represent
the Respondent's employees. This petition was later with-
drawn.
During the afternoon of the day on which the CIU agent
visited the shop, J. Anderson suggested to some employees
that if they abandoned the Union the Respondent could
establish a health insurance program with Blue Cross-Blue
Shield, could set up a retirement plan, and might even have
a little left over for a wage increase. A few days later, J.
Anderson said that he had a conversation with his attorney
and asked employees to forget what he had previously said
because he was not allowed to say anything on behalf of the
CIU. At or about this same time, he told employees that the
shop was going to be run strictly by the book.
Early in August, the Union filed both a civil action and
an unfair labor practice charge against the Respondent for
failing to abide by the terms and conditions of the outstand-
ing agreement. As a result of a settlement, concluded on
September 27, the Respondent made back payments to the
Union's health and welfare fund and was required to make
wage restitution to various employees for the difference be-
tween the union scale and what they had been receiving.
Sometime in September J. Anderson informed various em-
ployees that the Company would have to "go Carpenter"
and pay employees backpay. He also stated that the Com-
pany would not be able to get rid of the Carpenters at that
time but would have to wait until the contract expired. He
said that his brothers, Rich and Bob, would have a hard
time coming up with the money to pay employees backpay
for the difference between the Carpenters scale and what
they had been receiving and suggested that they might even
have to sell their Cadillacs to do so.
Sometime thereafter J. Anderson also told employees
that the shop would have to be run "by the book." He
informed them there would be no more personal privileges
on company time, such as smoking, getting sodas, or using
the bathroom, and that such activities would have to be
confined to the 10-minute break periods. He also said he
had gone to the Carpenters' Hall and had found out how to
issue warning slips for tardiness and absenteeism. He told
employees that the Union had informed Rich and Bob who
had reported their contract violations and stated that the
Union would not stand behind the employee or employees
in question because all the Union was interested in was the
money they received as a part of the settlement. He also
voiced the opinion that if the shop were to close it would
reopen far away so that the union business agent, whom he
referred to with an obscene term, would not be coming in
and out.
After the backpay checks from the settlement were dis-
tributed at the union hall, J. Anderson again hinted to some
employees that it would be a nice gesture if they would
return their backpay checks to the Company. He told for-
mer employees Steven Holmes and Mark Gebhardt that the
Company could not afford to remain open if employees
retained their backpay checks and asked them if they would
return their checks. They refused. J. Anderson also asked
former employee Robert Meenan why he had gone to the
union hall to complain about the size of the check and
asked Meenan to return his check. He told him that the
Anderson brothers had to take out a loan to get the money
to meet the backpay obligation. J. Anderson made the same
request to other employees.
In the late fall or early winter, J. Anderson ceased being
shop foreman and resumed his former job as truckdriver.
He explained in his testimony that he changed jobs because
the responsibility of the foreman's position was interfering
with his family life. He also felt that he lacked the back-
ground and education for the position. Early in January
Rich and Bob Anderson held a meeting at the shop of em-
ployees, including Robert D. Rhyneer. Rhyneer was the
most experienced and highest paid cabinetmaker in the
shop. Prior to the meeting in question, Bob Anderson had
sounded him out about taking J. Anderson's job as fore-
man. Bob Anderson told the assembled employees that pro-
duction was down and that the Company needed someone
in the shop to keep it going, because he and Rich could not
be in the shop all the time. He mentioned that J. Anderson
would be driving a truck and would not be foreman any
longer, and that his role in the shop would be limited to
machine repair. I credit the corroborated testimony of sev-
eral former employees that Bob Anderson also said that
Rhyneer was being appointed foreman and asked for their
assent to this appointment. All agreed that he would be the
most suitable person for the job. Bob Anderson instructed
employees to take their problems to Rhyneer, even if he or
Rich were at the plant at the moment. From that point on,
Rhyneer began assuming additional functions. He was the
"saw man," meaning that he obtained work orders from the
office and cut out component parts for cabinets. These parts
were then passed along to other employees for additional
phases of the production process. In addition to acting as a
saw man, Rhyneer began inspecting cabinets. From time to
time, he gave orders to other employees and started watch-
ing other employees as they performed their tasks. He had
lengthy closed-door conferences with Rich and Bob Ander-
son when they were in the shop. Questions concerning work
problems were brought directly to Rhyneer. whereas previ-
ously employees had gone either to J. Anderson or to Rich
and Bob Anderson. On one occasion Rhyneer initialed the
timecard of an employee who had neglected to punch out. I
credit testimony of various employees that he granted them
time off because of illness or in order to attend to personal
errands. Rhyneer arrived at the plant half an hour before
starting time and normally was the one who unlocked the
doors to the shop, although other employees also had keys.
Rich and Bob normally did not arrive at the shop until the
middle of the morning and were in and out of the building
all day attending to other aspects of the business. During
their absences, Rhyneer was the only person in charge of
plant production.
Early in February the Union held a meeting of Ander-
son's employees at the union hall to discuss proposals for a
new contract. About six persons, including Rhyneer, at-
tended the meeting and made suggestions for proposals.
These proposals were incorporated into a letter, dated Feb-
ruary 27, in which the Union gave the Anderson brothers
515
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
60 days' notice that it wanted to negotiate a new agreement
to replace the contract which was due to expire on April 30.
On the morning following the gathering at the union hall.
a ftew' employees. including Rhyneer. held a conversation in
the company office at the plantjust before starting time and
talked about union representation. I credit the testimony of
Donna Thien that Rhyneer brought up the idea of forming
a company union. lie suggested that Blue Cross Blue
Shield offered a better health insurance program than the
Carpenters did and made the further suggestion that the
employees would be better served by using the monthly
dues now being paid to the Carpenters for higher wages and
a profit-sharing plan. In response to a question, he replied
that Bob and Rich Anderson had no idea that he was mak-
ing this proposal and asserted that he thought up the idea
himself. Rhyneer continued to discuss the idea of a com-
pany union with employees throughout the day.
The following day Rhyneer spoke with the employees
again. He said he had talked with his lawyer and was ad-
vised that if he wanted to go ahead with the formation of a
company union he would have to resign as foreman, since
he could get into trouble if he continued to pursue this idea
while remaining a foreman. Miss Thien agreed that the best
thing to do was to do what his lawyer told him, so Rhyneer
said he would speak to Bob and Rich when they came in
and would resign as foreman. Later that day. Rhyneer told
Miss Thien and Miss Selby that he was no longer foreman
because the Andersons would not give him any more
money.5 However, Rhyneer continued to perform the same
functions he had in the past, and no one was appointed to
replace him as foreman.
Shortly thereafter Rhyneer and leadman Tom Hardy, the
stepson of Bob Anderson, circulated a handwritten decerti-
fication petition, which various employees signed. On Feb-
ruary 14. they circulated a typewritten petition to the same
effect, which Hardy. Rhyneer, and Rhyneer's sister, also an
employee in the shop, later took to the Board office. The
petition was submitted on February 21 in support of an RD
petition which Rhyneer filed in his own name (Case 14
RD 610). On February 23, the Union filed the first of the
three charges which have given rise to the consolidated
complaint in this case.
A few days after the filing of the RD petition, several
employees, including Rhyneer, went into the office together
and informed Bob Anderson that the RD petition had been
filed. His response was a remark to the effect that he would
negotiate with whomever the employees selected.
About this point in time, Miss Thien began having sec-
ond thoughts about decertifying the Carpenters and asked
the Carpenters to have a meeting with employees at the
hall. Such a meeting was held. but only Miss Thien and
employees Floyd Wildhaber and Shirley Selby attended.
Apparently the Carpenters satisfied these employees as to
the quality of their representation. They notified the Ander-
sons that Miss Thien was appointed shop steward. Miss
Thien asked Rhyneer if it would be possible for her to with-
draw her name from the RD petition. It is unclear whether
I discredit testimony in the record from Bob Anderson, his relatives. and
Rhyneer to the effect that Rhyneer had never accepted the position as fore-
man in he first instance because the Company and Rhyneer could never get
together on a nominal pay raise which Rhyneer was demanding as he price
or becoming fireman.
Rhyneer still had the petition in his possession or whether it
was on file at the Regional Office. In any event, Rhyneer
said that it was impossible to have a signature removed, so
Miss Thien let the matter drop.
About March 13, Bob Anderson approached Miss Thien,
Miss Selby, and Wildhaber and asked them who had filed
the charges at the Board. They replied that they did not
know. Miss Thien and Miss Selby were discharged 2 days
later for reasons not at issue in this proceeding. Thereafter,
Wildhaber was appointed shop steward by the Carpenters,
and the Employer was so notified.
On April I1, the decertification petition was dismissed.
and all parties, including the Andersons, were notified of
the dismissal. The Acting Regional Director stated as the
reason for his dismissal that he had concluded that the pe-
tition was company-sponsored because Rhyneer was, in his
judgment, a supervisor within the meaning of the Act. The
dismissal was appealed to the Board, and the Board af-
firmed the Regional Director in an order dated May 23.
This order contained the proviso that the petition would be
subject to reinstatement depending on the outcome of the
instant case.
In March, Larry Coleman phoned Bob Anderson and
made a verbal request to get together for the purpose of
negotiating a new contract. Bob Anderson stated that he
would call him back but he never did. On April 24, Cole-
man again phoned Bob Anderson about negotiating a con-
tract. Bob Anderson told him that there were matters cur-
rently pending at the Labor Board and he did not want to
do anything until they were resolved. On April 28, just 2
days before the contract was due to expire, both Andersons
called Ollie Langhorst. secretary-treasurer of the Carpen-
ters, and told him that they had a good-faith doubt that the
Carpenters represented their employees. Langhorst's only
reply was to ask them if their lawyer had told them to make
this statement. Bob Anderson replied in the affirmative.
The Carpenters struck all cabinet shops with whom they
had contracts on May I. However, no strike action took
place at the Anderson establishment until Thursday, May
4, when former employee Thien and shop steward Wild-
haber began to picket the premises. No other employees
joined in the strike. Miss Thien and Wildhaber carried signs
which read, in part, that the employees of Anderson were
"On Strike" because the Andersons "refuse to bargain."
On Monday, May 8, Bob and Rich Anderson came out
to the sidewalk where Miss Thien and Wildhaber were
picketing and handed Wildhaber two checks, one for ac-
crued vacation pay and the other for wages due. Bob An-
derson told him that "you haven't shown up for work the
last couple of days so you are being terminated for this." As
of that moment, no replacement had been hired for Wild-
haber. No contention has been advanced that either Wild-
haber or Miss Thien were guilty of any picket line miscon-
duct.
Analysis and Conclusions
I. The supervisory status of Robert D. Rhyneer
In dismissing the decertification petition filed by Rhy-
neer, the Acting Regional Director concluded that the peti-
516
ANDERSON CABINETS
tion was employer-sponsored because Rhyneer was a super-
visor within the meaning of Section 2(1 I) of the Act. The
Respondent challenged his determination in this proceed-
ing, and the Board. in affirming the Director, stated that its
affirmation was subject to revision. depending upon the
outcome of this case. Because of both the Board's Order in
Case 14 RD 610 and its decision in Sern-U-Stores. Inc..
234 NLRB 1134 (1978), the question must now be resolved
on the basis of the record herein.
Rhyneer was promoted to the position of foreman to take
the place of J. Anderson, an admitted supervisor. I put little
credence in the claim that the plant actually ran itself' and
did not need a foreman. In fact, Bob Anderson solicited
Rhyneer to replace J. Anderson and told the employees
who assembled for a meeting in early or mid-January that
the shop needed someone to get the work moving, since
production was down. The Respondent cannot convinc-
ingly say now that it did not need a shop foreman when, in
January, it was telling its employees the reverse.
I have also credited the testimony of several employees
that the thrust of the January meeting was to appoint Rhy-
neer foreman, not to ask him in front of his fellow workers
whether he wanted to become foreman. This second con-
tention of the Respondent is as implausible as the assertion
that the shop was not really in need of a foreman at all.
This claim is contradicted by the Respondent's own testi-
mony. Hence. Rhyneer was placed in a supervisory post
and was held out by the Respondent to its employees as
being the incumbent in such a position.
Additional factors also support the conclusion that Rhy-
neer was a supervisor. There were, and presumably still are,
large stretches of time throughout a normal workday when
neither of the principals were present on the premises.
Hence Rhyneer was and is the ranking person in the shop
in the absence of its owners. This state of affairs argues
strongly that he is a supervisor. Rhyneer began to carry out
his supervisory responsibility immediately after his appoint-
ment by giving orders, overseeing production. granting em-
ployees excused absences, initialing a timecard, inspecting
work, and generally taking charge by handling routine
problems that arose on the production line so that Bob and
Rich Anderson could attend to other aspects of the busi-
ness. It is also clear that his purported resignation as fore-
man was a sham which bore no relation to the functions he
continued to fill. In the light of these considerations. it is
quite clear that, at least since mid-January. Robert D. Rhy-
neer was a supervisor within the meaning of Section 2(11)
of the Act. I so find and conclude.
2. The independent 8(a)(I) allegations
The events which took place early in August 1977, when
the CIU agent visited the Respondent's premises and solic-
ited union cards from its employees in the presence of su-
pervisor J. Anderson. lie outside the period of limitations
and hence cannot be relied upon as a basis for findings of
independent violations of Section 8(a)( I ) of the Act. How-
ever, after August 23, 1977, the Respondent committed re-
peated violations of the Act through the words and conduct
of its foreman, J. Anderson, as follows:
(a) After the Respondent had concluded a settlement of
its 1977 back wage dispute with the Union. it agreed to
make restitution to several of its employees for the differ-
ence between the contract scale and what in fact the Re-
spondent had been paying them. Shortly thereafter, J. An-
derson took steps to try and recover these back payments
for his brothers. While hinting about or requesting a return
of payments was a chintzy thing to do, I do not believe that
mere suggestions or requests to this effect constitute unfair
labor practices, so I would dismiss paragraphs 3(G) and (H)
of the complaint. However, when J. Anderson told employ-
ees Holmes and Gebhardt that the Company would not
remain open if employees retained their backpay checks, he
was making an untrue statement and one which his brother
contradicted in the record in this case. Such statements con-
stitute threats to close the plant if Holmes and Gebhardt
did not return the wage restitution payments and is a form
of illegal pressure prohibited by Section 8(a)( 1 ) of the Act.
(b) When J. Anderson told employees that if the shop
were to close it would reopen far from its existing location
so that union agent Coleman could not come in and out, he
was guilty of interference with protected activities and vio-
lated Section 8(a)( 1) of the Act.
(c) Shortly after the CIU representative left the plant, J.
Anderson told employees that their selection of the CIU or
a company union would result in better pay and benefits.
He later told them that he had consulted a lawyer and that
they should erase from their minds whatever he had said to
them in this score. I conclude that these remarks were made
in the first part of August and that a prosecution of the
Respondent for such statements is barred by limitations.
Accordingly. I dismiss paragraph 3(b) of the consolidated
complaint. However, such remarks are illustrative of the
attitude and sentiments of the Respondent and indicate an
animus on its part which has a direct bearing on later
events,
(d) Sometime in September, after it appeared that a set-
tlement with the Carpenters was inevitable, J. Anderson
told employees that the Company could not get rid of the
Carpenters at that time but would have to wait until the
contract expired. While not abundantly clear from the rec-
ord, this remark may have been prompted by the fact that
the CI U's representation petition, filed in early August, was
untimely under the Board's contract bar rules. In any event,
his remark that the employer intended to take steps to
eliminate the bargaining agent constitutes interference with
protected rights in violation of Section 8(a)(1) of the Act. It
is also illuminating as to the origin of events which took
place in February 1978 and thereafter.
(e) Anderson made statements, both before and after the
commencement of the period of limitations, to the effect
that he was going to run the shop "by the book," that he
had obtained information about writing up disciplinary
slips, and that employees would no longer have permission
to attend to personal matters (such as getting sodas, smok-
ing, etc.) on company time. His statement amounts to an
imposition of more onerous working conditions in reprisal
for union activities and is a violation of Section 8(a)(I) of
the Act.
(f) J. Anderson also told employees that the Union had
disclosed to the Respondent who had lodged the complaint
concerning the withholding of wages and health and wel-
fare payments. He said that the Union was not going to
517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protect the employee who informed on the Company. He
asked Meenan why he had complained to the Union about
the amount of the backpay settlement. This statement con-
stituted a threat of reprisal, coercive interrogation, and an
indication that union activities of employees were the sub-
ject of company surveillance, all of which are violations of
Section 8(a)( 1) of the Act.
(g) Robert D. Rhyneer, who took J. Anderson's place,
committed unfair labor practices attributable to the Re-
spondent, as follows:
(1) It is a classic violation of the Act for a supervisor to
sponsor, circulate, or file a decertification petition. Rhyneer
admittedly did all of these things and, in so doing, violated
Section 8(a)( ) of the Act.
(2) In connection with his effort to decertify the Carpen-
ters, Rhyneer suggested to employees on several occasions
in early February that the elimination of the Carpenters
would result in better health insurance coverage and an
increase in other benefits. Such statements constitute illegal
promises which violate Section 8(a)(1) of the Act.
(3) The consolidated complaint alleges that Rhyneer in-
structed employees not to remove their names from the
decertification petition. The reference is to Rhyneer's re-
marks to Miss Thien when she requested to remove her
name from the petition. I do not construe his remarks on
this occasion as an instruction to her or as an act on his part
prohibiting her from removing her name. Rather, it appears
that he was saying to her that it was not possible at this
juncture for her to remove her name. Whether accurate or
inaccurate, the statement was merely an expression of opin-
ion as to the rules and procedures surrounding the process-
ing of a decertification petition and does not constitute a
violation of the Act. Accordingly, I would dismiss para-
graph 5(M) of the consolidated complaint.
The complaint also alleges that Robert Anderson interro-
gated employees concerning who filed charges against the
Company with the Board. The question was in fact posed to
Misses Thien and Selby and to Wildhaber in mid-March. It
amounts to coercive interrogation which violates Section
8(a)(1) of the Act.
3. The Respondent's refusal to bargain
There is no dispute either that the Respondent told the
Union on April 28 that it would not bargain or that it re-
frained from bargaining with the union prior to that date
concerning revisions to the contract due to expire on April
30. Bob Anderson testified that he would not have bar-
gained collectively with the Union at any time after Febru-
ary 21 because Rhyneer had filed a decertification petition
and had come into the office with several other employees
to inform Anderson of' his action. Upon advice of counsel,
he and his brother called the Union and proclaimed their
good-faith doubt that the Union represented a majority of
their employees.
There is little in their dealings with the Carpenters over
the years that could possibly justify use by the Andersons of
the term "good faith." In 1976, they failed to live up to their
contractual commitments until the Union brought pressure
to force them to do so. In 1977, they repeated the same
delinquency and thereby engendered the filing of both an
unfair labor practice charge and a civil action in federal
district court. When these actions were being threatened by
the Carpenters, the Respondent permitted a rival union to
come on to their premises to solicit the support of their
employees and aided and abetted this effort through the
antiunion comments of their brother and foreman, Jim An-
derson. When these efforts failed, J. Anderson informed
employees that the Company wold have to wait a few
months to get rid of the Carpenters and coupled his re-
marks with a series of coercive acts and illegal promises.
In February the Respondent, by and through its newly
appointed supervisor, Rhyneer, sponsored a decertification
petition and promised employees a better deal if they would
go along with the petition. The Respondents waited until
the eleventh hour before the contract expiration date to
inform the Carpenters that they no longer recognized them
as bargaining agent. It is against such a background that a
claim of good faith must be evaluated. To support this
claim the employer must present clear and convincing evi-
dence of loss of support by a union. The evidence must be
capable of raising a reasonable doubt of the Union's contin-
ued majority. Retired Persons Pharmacy v. N.L.R.B., 519
F.2d 486 (2d Cir. 1975).
As the Eighth Circuit put it in Boyle's Famous Corned
Beef Company v. N.L.R.B., 400 F.2d 154, 166 (8th Cir.
1968), a "supervisor cannot be used as a tool or instrument
of management in fostering or aiding a new union, and
strict principles of agency are not required to hold manage-
ment responsible for the union activity of its supervisory
employees." In this case, Bob and Rich Anderson let their
brother and Rhyneer carry out the plans which they
brought to ultimate fulfillment in the telephone call to
Langhorst on April 28.
The Respondent's basic justification on April 28 for re-
fusing to bargain with the Carpenters was the filing of a
decertification petition on February 21, a petition which by
that time had been dismissed by the Regional Director. It is
well established that the filing of a decertification petition,
standing alone, does not justify an employer in withdrawing
recognition from an incumbent union. Celanese Corporation
of America. 95 NLRB 664 (1951): Autoprod, Inc., 223
NLRB 773 (1976). These and many other cases have consis-
tently stood for the proposition that a claim of good-faith
doubt as to the continued majority status of a union will
not be entertained where it is raised in the context of em-
plover unfair labor practices. Such is the manifest context
of the Respondent's claim herein. Accordingly, I conclude
that by failing and refusing to bargain with the Carpenters
on and after April 28, 1978, the Respondent herein violated
Section 8(a)( ) and (5) of the Act.
4. The discharge of Floyd T. Wildhaber
Wildhaber was the Union's shop steward at the time of
his discharge on May 8. On that date he had been picketing
in front of Respondent's place of business for 3 days in
support of the Carpenters' strike of all unionized cabinet
shops in the St. Louis area. Wildhaber did not in fact quit
his job, and the Respondent admits that no replacements
for him had been hired as of the time he was terminated.
His absence from the shop on May 4, 5, and 8 was due to a
strike and his participation therein, and the Respondent
was well aware of this fact. Calling a strike a voluntary quit
518
ANDERSON CABINETS
or an absence from work justifying discharge is to write
Section 13 out of the Act. This is just what the Respondent
attempted to do when it fired Wildhaber because he had
engaged in such union activities. The discharge plainly vio-
lated Section 8(a)(1) and (3) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record herein considered as a
whole, and pursuant to Section 10(c) of the Act. I make the
following:
CONCLUSIONS OF LAW
1. Respondent Robert E. Anderson and Richard E. An-
derson, copartners d/b/a Anderson Cabinets, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Carpenters' District Council of Greater St. Louis,
AFL-CIO, and the Congress of Independent Unions are
labor organizations within the meaning of the Act.
3. All production and maintenance employees employed
by the Respondent at its St. Louis, Missouri, shop, exclusive
of office clerical employees and supervisors as defined in the
Act, constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Carpenters have been
the representative for the purposes of collective bargaining
of the employees in the unit described above in Conclusion
of Law 3 and, by virtue of Section 9(a) of the Act, have
been and are now the exclusive representative of all the
employees in said unit for the purposes of collective bar-
gaining with respect to wages, hours, and terms and condi-
tions of employment.
5. By failing and refusing to bargain with the Carpenters
as the collective-bargaining representative of its employees
in the unit described above in Conclusion of Law 3, the
Respondent herein violated and continues to violate Sec-
tion 8(a)(5) of the Act.
6. By discharging Floyd T. Wildhaber because he en-
gaged in union activities, the Respondent violated Section
8(a)(3) of the Act.
7. By the acts and conducts set forth above in Conclu-
sions of Law 5 and 6; by coercively interrogating employees
concerning their union activities; by sponsoring the circula-
tion and filing of a decertification petition: by promising
employees benefits if they would abandon their support for
the Carpenters and select some other labor organization as
their bargaining representative: by threatening employees
with plant closure if they continued to support the Carpen-
ters as their bargaining agent and if they refused to return
to the Respondent money received as settlement of a wage
restitution claim: by threatening to relocate the plant to a
place where the Carpenters would be unable to act as the
bargaining agent of the Respondent's employees: by impos-
ing more onerous working conditions because the employ-
ees, through their bargaining representative, enforced the
terms and conditions of the outstanding collective-bargain-
ing agreement; and by telling employees that their union
activities were the subject of company knowledge and sur-
veillance and that they would be penalized for seeking the
assistance of the Union, the Respondent herein violated
Section 8(a)(1) of the Act.
8. The unfair labor practices found herein adversely af-
fect commerce among the several States, within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent herein has committed
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take other
actions designed to effectuate the purposes and policies of
the Act. Since the violations in question are repeated and
persistent and include a discriminatory discharge, I will rec-
ommend to the Board a so-called broad 8(a)(1) order de-
signed to suppress any and all violations of that Section of
the Act. J. C. Penne ' Co., Inc. (Store 1814), 172 NLRB
1279, fn. 1 (1968). I will further recommend that the Re-
spondent be required to offer full and immediate reinstate-
ment to Floyd Wildhaber to his former or a substantially
equivalent position and that it also be required to make him
whole for any loss of pay or benefits which he has suffered
by reason of the discrimination practiced against him, to be
computed in accordance with the Woolworth formulae, with
interest thereon calculated in accordance with the adjusted
prime rate used by the U. S. Internal Revenue Service to
compute interest on tax payments. Florida Steel Corpora-
tion, 231 NLRB 651 (1977); Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). I will recommend that the Respon-
dent be required to recognize and bargain collectively with
the Carpenters as the duly designated representative of its
employees and to post the usual notice, advising employees
of their rights and of the results of this case.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act. I make the follow-
ing recommended:
ORDER7
Respondent Robert E. Anderson and Richard E. Ander-
son, co-partners d/b/a Anderson Cabinets, and their super-
visors, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Carpenters' District Council of the Greater St. Louis Area,
AFL-CIO, as the collective-bargaining representative of its
production and maintenance employees.
(b) Coercively interrogating employees concerning their
union activities.
(c) Threatening employees with plant closure or with
loss of benefits unless they abandon support for the Carpen-
ters.
(d) Threatening employees with reprisal if they enforce
the terms of an outstanding collective bargaining agree-
ment.
(e) Sponsoring the circulation and filing of a decertifica-
tion petition.
6 F W. Woolworth Corparny, 90 NLRB 289 (1950).
7 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.
519
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Promising employees benefits if they abandon sup-
port for the Carpenters and select some other labor organi-
zation as their collective bargaining representative.
(g) Threatening to relocate the plant to a place where the
Carpenters would be unable to act as collective-bargaining
representative.
(h) Imposing more onerous terms and conditions of em-
ployment because the employees seek to enforce the terms
of a collective-bargaining agreement.
(i) Threatening to close the plant if employees refuse to
return to the Respondent sums of money received as settle-
ment of a wage restitution claim.
(j) Telling employees that their union activities are the
subject of company knowledge and surveillance.
(k) Discouraging membership in and activities on behalf
of Carpenters' District Council of the Greater St. Louis
Area, AFL-CIO, or any other labor organization, by dis-
charging or otherwise discriminating against employees in
their hire or tenure.
(I) By any other means interfering with, coercing, or re-
straining employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Recognize and, upon request, bargain collectively
with Carpenters' District Council of the Greater St. Louis
Area, AFL-CIO, as the collective-bargaining representative
I In the event that 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 Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
of all of its production and maintenance employees, exclu-
sive of office clerical employees and supervisors as defined
in the Act, and, upon reaching agreement, embody the
terms of said agreement in a signed, written instrument.
(b) Offer to Floyd T. Wildhaber full and immediate rein-
statement to his former position or, in the event his former
position no longer exists, to substantially equivalent em-
ployment, without prejudice to his seniority or to other
rights which he formerly enjoyed.
(c) Make whole Floyd T. Wildhaber for any loss of pay
and benefits which he has suffered by reason of the dis-
crimination found herein, in the manner described above in
the section entitled "The Remedy."
(d) Post at its St. Louis, Missouri, place of business cop-
ies of the attached notice marked "Appendix."' Copies of
the Appendix, on forms provided by the Regional Director
for Region 14, shall be signed by a representative of the
Respondent, shall be posted by it immediately upon receipt
thereof, and shall be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that such notices are not
altered, defaced, or covered by any other material.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
Insofar as the consolidated complaint herein alleges mat-
ters that have not been found to be unfair labor practices,
said consolidated complaint is hereby dismissed.
520