Avecor, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1989

296 N.L.R.B. 727 (N.L.R.B. 1989)

AVECOR, INC.
Avecor, Inc. and Oil, Chemical and Atomic Workers
International Union . Cases 10-CA-22645, 10-
CA-22886, and 10-RC-13492
September 22, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On September 30, 1988, Administrative Law
Judge Hutton S. Brandon issued the attached deci-
sion. The Respondent filed exceptions, a supporting
brief, and an answering brief, and the Charging
Party filed exceptions, a supporting brief, and an
answering brief.
The National Labor Relations Board has delegat-
ed 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 decided to affirm the judge's rulings, findings, 2
and conclusions and to adopt the recommended
Order. 3
' The Respondent has requested oral argument The request is dented,
as the record, the exceptions, and briefs adequately present the issues and
the positions of the parties
The Respondent riled a motion to strike the Charging Party's excep-
tions, with supporting brief, contending that the Charging Party's excep-
tions lack the specificity required by Sec 102 46 of the Board' s Rules and
Regulations . Although the Charging Party's exceptions do not conform
exactly to the requirements of Sec 102.46, they are not so deficient as to
warrant striking . Thus, the motion is denied.
2 The Respondent and the Charging Party have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F.2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
a The Charging Party excepted only as follows It excepted to the
judge's failure to find that the Respondent 's president, Leonard Klarich,
violated Sec 8(a)(1) of the Act by making a preelection statement to em-
ployees that he would delay moving a machine into the plant until he
knew where the Company stood with the union situation and its operat-
ing costs It also excepted to the judge's failure to find that the Respond-
ent's discharge of employee James Ricky White was a violation of Sec
8(a)(3) of the Act The General Counsel did not file any exceptions to the
judge's decision.
The Respondent excepts, inter alia , to the judge 's finding that lab sec-
retary Diane Byrum is an office clerical and thus should be excluded
from the collective-bargaining unit. In light of our agreement with the
judge 's finding that the Union had obtained majority status on April 27,
1987, with valid authorization cards from 19 employees out of a unit of
34, and because Byrum 's inclusion in the unit would not affect that ma-
jonty, we find it unnecessary to pass on Byrum 's status
On further consideration , we withdraw, as improvidently granted, our
granting of the Respondent 's motion to correct transcript Our granting
of the motion on December 13, 1988 , changed from a "yes" to a "no"
President Klarich's response to the question whether he promised the em-
ployees more raises in the future without a union However, the Re-
spondent in its motion to the Board , failed to apprise the Board that the
issue of correcting the transcript in this regard was, in substantially the
same manner , raised before the judge and denied (see fn 9 of the judge's
decision). We find this motion was improvidently granted and, on further
consideration, it is denied
Moreover, with regard to this point, the judge found that employee
Darrell Martin , a credible witness, testified that Klarich said the employ-
727
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Avecor,
Inc., Vonore, Tennessee , its officers , agents, succes-
sors, and assigns, shall take the action set forth in
the Order.
ees would be getting more "pay wages" in the future without the Union
Thus, in any event , we would find, based on Martin 's testimony, that
Klarich made the statement in issue
Josephine S. Miller, Esq., for the General Counsel.
Jeffrey M. Mintz and Ann Hale-Smith, Esqs. (Jackson,
Lewis, Schnitzler & Krupman), of Atlanta , Georgia, for
the Respondent Employer.
Lynn Agee, Esq. (Gerber, Gerber & Agee), of Nashville,
Tennessee , and Mrs . John Williams and Jim Hendrix
of Knoxville , Tennessee , for the Charging Party Peti-
tioner.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
These cases were tried at Knoxville, Tennessee, on Janu-
ary 11-14 and May 31-June 1, 1988. The charge in Case
10-CA-22645 was filed by Oil, Chemical and Atomic
Workers International Union, (the Union) on July 1,
1987,1 and amended on August 13 while the charge in
Case 10-CA-22886 was filed by the Union on September
28 and amended on November 2. The initial complaint in
Case 10-CA-22645 issued on August 14. The petition in
Case 10-RC-13492 was filed by the Union on April 30
seeking an election among employees of Avecor, Inc.
(Respondent) or the Company, in a unit of production
and maintenance employees. Following a stipulation for
certification upon consent election approved on May 21
an election was held on June 25 in the stipulated unit. A
majority of valid ballots cast opposed representation.2
The Union filed timely objections to the election on July
1. On August 18 an order directing hearing on the objec-
tions and consolidating them with Case 10-CA-22645
issued . On October 15 an amended consolidated com-
plaint issued, and on November 5 a second amended
complaint and order issued consolidating Case 10-CA-
22886 with the two previously consolidated cases. The
consolidated complaint, as amended, alleges violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, (the Act), and presents issues regarding
whether Respondent (a) independently violated Section
8(a)(1) of the Act through coercive conduct and state-
ments of its supervisors and agents designed to dissuade
employees from union support, (b) discharged five em-
ployees in violation of Section 8(a)(3) and (1) because of
their union activity, (c) interfered with the conduct of
' All dates are in 1987 unless otherwise stated
2 Of approximately 40 eligible voters 10 cast votes for and 22 against
the Union. There were five challenged ballots and no void ballots Chal-
lenges were insufficient to affect the election results
296 NLRB No. 94
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the election on June 25, and (d) if Respondent 's conduct
interfered with the election , a fair rerun election is im-
possible thus warranting the entry of a remedial bargain-
ing order based on the Union 's majority status estab-
lished through authorization cards.
On the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel, the Union and
Respondent , I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a California corporation with an office
and place of business at Vonore, Tennessee , where it is
engaged in the production of color pigment for plastic.
During the calendar year preceding issuance of the con-
solidated complaint Respondent sold and shipped fin-
ished products valued in excess of $50,000 from its
Vonore, Tennessee facility directly to customers located
outside the State of Tennessee . The consolidated com-
plaint alleges, Respondent admits, and I find that Re-
spondent has been at all material times an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The complaint also alleges , Respond-
ent further admits, and I further find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Exactly when in 1987 that employees began discussing
among themselves the desirability of union representation
is not clear from the record . They were no strangers to
union activity since they had experienced a union organi-
zational campaign by the United Steelworkers Union in
1986, and had rejected representation then in an NLRB
conducted election . Jeff Tidwell, one of the alleged dis-
criminatees in the cases sub judice, testified regarding the
most recent union campaign that he first began talking
about union organization on April 22 or 23. He identified
other employees with whom he discussed this topic, as
James "Bucky " Rodgers, Tim and Stephen Lenoir, John
Armstrong , and Darrell Martin . Both Armstrong and
Martin are also alleged in this case to have been unlaw-
fully discharged . The first overt step taken to establish
contact with the Union was claimed by Tidwell. That
first step , obtaining a telephone number for the Union,
allegedly led to a series of unlawful acts attributed to Re-
spondent's supervisors and agents as detailed below.
B. The Alleged Independent Violations of Section
8(a)(1) of the Act
1. The alleged coercive conduct of supervisors
a. Sandy Thomas
Sandy Thomas is employed as a quality control super-
visor and at all relevant times was the immediate super-
visor of Tidwell. Her supervisory status within the mean-
ing of Section 2(11) of the Act was admitted by Re-
spondent as was that of all supervisors alleged in the
complaint to have violated the Act. The complaint al-
leged that Thomas on April 27 threatened employees
with reprisals if they joined or engaged in activities on
behalf of the Union.
The General Counsel relied upon the testimony of
Tidwell to establish the only violation of the Act attrib-
uted to Thomas. According to Tidwell he went into the
plant's laboratory office on April 23 at the request of
other employees to obtain the Union 's telephone number.
Thomas was present as were employees Mac Coley and
Kevin Newman . Thomas inquired if she could help him,
and Tidwell expressed doubt that she could help him in
looking for the number he wanted . She asked what
number he was looking for , and he replied he was look-
ing for a number for the Union . After he had found the
number she asked "who was it" and Tidwell replied that
it was the Oil, Chemical and Atomic Workers Union.
Using the number obtained by Tidwell , Rodgers tele-
phoned the Union and arranged a meeting between union
officials , including District Director John Williams and
representative and organizer Jim Hendrix , at a local serv-
ice station in Vonore around midnight on April 24. At
the meeting which took place after conclusion of Re-
spondent's second shift Williams and Hendrix discussed
organization with approximately 10 employees attending
the meeting . Many including Tidwell signed union au-
thorization cards.
On Monday April 27, Tidwell reported to work on his
normal shift, the second shift , which began around 4:30
p.m. Shortly after reporting , according to Tidwell,
Thomas approached him in the "prep room," where she
told him , in the absence of any witnesses, "we" know all
about it , and "you better be careful , better watch out."
No further remarks were attributed to Thomas on this
occasion.
Thomas in her testimony for Respondent specifically
denied the remarks claimed by Tidwell to have been
made by her on both April 23 and 27. She further denied
any knowledge of union activity by Tidwell on either of
those dates . She did concede, however, that she had had
a conversation with Tidwell alone on April 27 regarding
misconduct attributed to Tidwell at work on April 24
which will be discussed in more detail below. In the
course of that conversation Thomas testified she warned
Tidwell about his conduct April 24 after he failed to
deny the conduct attributed to him and in fact apolo-
gized for it. Thus, in this context Thomas admitted warn-
ing Thomas . Thomas struck me as earnest, candid, fair,
and honest . She testified that she regarded Tidwell as a
friend , and her past conduct demonstrates leniency as
well as fairness toward Tidwell which substantiates the
existence of a friendly relationship between the two. Her
testimony as a whole was both plausible and logical and
her frankness was evidenced by a major admission that
she had heard rumors regarding union activity in the
plant during the week prior to the April 24 union meet-
ing. Having made that admission there would be little
reason to further conceal specific knowledge of Tidwell's
involvement in union activity if she in fact had such
AVECOR, INC.
knowledge 3 and sought to warn him about it. More-
over, the verbal warning she in fact issued to Tidwell
was as consistent with his alleged misconduct on April
24 as it was with his involvement in union activity.
Tidwell was alleged as a discriminatee in this case and
cannot be regarded as anymore disinterested in its out-
come than Thomas . On the whole his memory impressed
me as selective recalling only the details more supportive
of his case . Moreover , notwithstanding his having given
three different statements to the Board during the inves-
tigation of this matter in none of them did he attribute to
Thomas the questions on April 23 he claimed in his testi-
mony . On balance I find Thomas was the more reliable
and credible of the two witnesses . Accordingly, I credit
Thomas and conclude that any warning issued by her to
Tidwell on April 27 related to his actions at work on
April 24 and not his union activities . I therefore find no
unlawful threat in Thomas' remarks and consequently no
violation of Section 8(a)(1) of the Act in this regard.
b. Denver Millsaps
The complaint alleges that on or about April 24 Re-
spondent 's production manager, Denver Millsaps, prom-
ised employees unspecified benefits if they refrained from
joining or engaging in activities on behalf of the Union.
In support of this allegation alleged discriminatee Leroy
Hamby testified that on April 27 he was sweeping out
Millsaps' office following a called early afternoon meet-
ing of supervisors . Hamby asked Millsaps what the meet-
ing was about and Millsaps replied that at the meeting
they had discussed giving the operators $8 per hour to
keep the Union out. Hamby, a janitor, asked if they had
said anything about his rate of pay. Milisaps answered
that he was not Hamby's supervisor and Hamby would
have to take it up with his own supervisors . Hamby con-
ceded he never thereafter talked to his own supervisor,
Maintenance Manager Larry Murphy, about a raise.
Millsaps denied the statement claimed by Hamby.
While he admitted attending a supervisory meeting
where the supervisors were advised by Plant Manager
Larry Willoughby of the existence of union activity in
the plant he could not recall the date of the meeting.
And, although he recalled discussing with some leadmen
the possibility of a wage increase to employees as a
result of cutting production costs and staffing , he could
recall no remarks made to Hamby along these lines.
Hamby 's testimony was straightforward and unequivo-
cal. He was specific where Millsaps was not . Millsaps'
denials regarding the substance of Hamby's testimony
were generally couched in terms of absent recall. Re-
spondent argues that Millsaps was a veteran of the Steel-
workers' union campaign the year before and having
been instructed regarding lawful statements would not
likely have made the statement claimed by Hamby. I
have considered this argument full well but find that it
does not sufficiently counterbalance the persuasiveness of
Hamby's testimony. Hamby's testimony regarding the
date of remarks attributed to Millsaps is of questionable
s In emphatically denying that she had an exchange with Tidwell on
April 23 regarding the Union 's telephone number Thomas related she did
not inquire of employees about personal telephone calls
729
accuracy in light of Hamby's inaccurate testimony that
he signed a union authorization card on April 24 when in
fact he signed the card on April 27 . However, given
Hamby's persuasiveness , I believe the inaccuracy of the
date of the comment attributed to Millsaps is insufficient
to discount the reliability of Hamby's testimony . I credit
Hamby over Millsaps, and based on the record as a
whole, it is reasonable to infer that the supervisory meet-
ing Millsaps referred to took place April 27, since Re-
spondent concedes it became aware of union activity on
that date . Millsaps' remarks clearly implied Respondent's
willingness to consider the grant of an unlawful increase
to its operators to thwart their union inclinations. Fur-
ther, since Millsaps did not indicate that the idea of a
wage increase was rejected , a listening employee re-
ceived the clear message that abstention from union ac-
tivity might well be rewarded and would thereby be dis-
couraged from union support . Accordingly, I conclude
Millsaps' remark to Hamby amounted to an implicit
promise of benefit which violated Section 8(a)(1) of the
Act as alleged.
c. Joe Ingram
Joe Ingram was employed by Respondent at all mate-
rial times as the manager of liquid production . The com-
plaint alleged that he committed a number of violations
of Section 8(a)(1), the first of which occurred on April
24. On that date Ingram allegedly interrogated employ-
ees concerning their union activities and desires, solicited
employees to report union activities of other employees
and threatened employees with discharge for union ac-
tivity. The General Counsel relied upon the testimony of
alleged discriminatee John Armstrong to substantiate
these allegations.
Armstrong testified that on April 244 around 12:30 to
1 p.m. he was approached by Ingram while Armstrong
was near the trash dumpsters . Ingram asked Armstrong
if he had signed a union card . Armstrong replied that he
had not . Ingram then remarked that if Armstrong knew
anybody that signed a union card, "it's best for you to go
up and tell" Plant Manager Willoughby about who
signed. Ingram added that if Willoughby ever found out
that "you had anything to do with signing a union card
he would fire you over it."
Ingram denied the remarks attributed to him by Arm-
strong. On balance , I credit Ingram 's denials . Armstrong
impressed me as an opportunist willing to testify to any-
thing he deemed might be supportive of his claim of un-
lawful discrimination. His memory was highly selective
at times . His placing of Ingram's alleged remark prior to
the union meeting of April 24 and before any cards were
signed exemplifies not only the inaccuracy of his recall
but also a clumsy fabrication . Even his recall concerning
the circumstances of signing a union authorization card
was poor and contradicted by Ed Hurst, the employee
who Armstrong claimed solicited his signature on the
card . I find Armstrong 's testimony to be totally self-serv-
It should be noted that the date of this incident claimed by Arm-
strong would establish Ingram 's alleged conduct as occurring prior to the
first union meeting and Armstrong's signing of a union card
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, unreliable , and incredible . Accordingly, I find
Ingram did not talk to Armstrong regarding the Union
and did not commit the 8(a)(1) violations claimed by
Armstrong.
An alleged threat of discharge by Ingram on May 13
was also claimed in the complaint , but the testimony in
support of the allegation , that of alleged discriminatee
James White, placed Ingram 's alleged coercive remark
around May 8, the same time as a threat of plant closure
by Ingram also alleged in the complaint . Thus, White
testified that on the day before he began a 2-week vaca-
tion on May 9 Ingram , White's supervisor, called White
into his office and advised him of a 50-cent-per-hour
raise .5 In further remarks to White, Ingram said that Re-
spondent did not want a union in the plant and that if a
union did come in they would just close the doors,
change the name of the company and hire all new
people.
White testified that Ingram repeated these remarks on
the day he returned from his vacation , apparently around
May 25, when Ingram again called White into his office
to advise him of a 40-cent-per-hour general wage in-
crease to employees . Moreover, still according to White,
Ingram explained that the 40-cent raise was not supposed
to be a bribe against employees organizing but conceded
that in fact it was and cautioned White to be quiet about
it. Ingram noted that with the 50-cent annual raise and
the 40-cent general raise White was "doing real good."
The complaint alleges, and the General Counsel argues
that Ingram 's concession that the 40-cent raise was a
bribe was coercive and independently violative of Sec-
tion 8(a)(1). Further the 40-cent raise , which was in fact
granted employees on May 14, and which is discussed in
greater detail below, was alleged in the complaint as vio-
lative of Section 8(a)(1) of the Act because it was alleg-
edly responsive to the employees union activity.
Ingram admitted to having had conversations with
White regarding both the annual raise granted White and
the second general wage increase . Moreover, he admit-
ted that in the conversation with White on May 8 the
subject of the Union was raised by White's assertion that
he had been told that if the Union came in and there was
a strike there was no way employees could lose their
jobs. Ingram testified he responded by saying that the
Respondent could hire replacement workers and "contin-
ue its normal work process ." White asked what hap-
pened when the strikers came back to work and Ingram
explained that if "somebody has your job that was tem-
porarily filled during the strike" they still have the job
and would be replaced by former strikers only after they
quit or transferred to another job. Ingram testified paren-
thetically that he had received instructions regarding
strikers ' rights and other labor relations laws in a meet-
ing with Respondent 's attorneys earlier in the day on
May 8 . Ingram denied that in talking to White regarding
the general wage increase he had conceded that it was
really a bribe.
Weighing the testimony of White against that of
Ingram , I credit the latter in this instance . White provid-
5 The raise was given White as a result of an annual review and ap-
praisal.
ed no context in which the remarks attributed to Ingram
occurred during the May 8 meeting when wages were
discussed . And Ingram's testimony that the subject of the
Union was broached by White in the context of a ques-
tion about striker reinstatement rights was not rebutted
by White. Moreover, White appeared to be testifying re-
garding his personal conclusions regarding the statements
attributed to Ingram rather than Ingram 's actual remarks,
particularly with respect to the claim that Ingram said
that the general wage increase was really a bribe to
forego union activity after initially saying it was not. If
Ingram was determined to convey to White the fact that
the general wage increase was a bribe there was little
reason for him to preface the message with a denial that
the increase was a bribe . Finally, as discussed infra, the
fact of a general wage increase , although not the amount
was announced prior to the union campaign . This being
the case Ingram would not have had a factual basis for
saying the raise was in reality a bribe . Considering the
above , as well as Ingram 's convincing denials, I credit
Ingram and find he did not violate Section 8(a)(1) of the
Act in comments to White.
Alleged discriminatee Leroy Hamby also attributed an
unlawful remark to Ingram . The remark took place, ac-
cording to Hamby, in Ingram 's office. Hamby placed the
date initially as April 24, but subsequently indicated it
was on April 17. Hamby was positive that the remarks
he attributed to Ingram took place prior to the union
meeting at the Vonore service station on April 24. In
any case, Hamby related that he had asked Ingram what
he thought about the Union , and Ingram responded that
the Union would cause the company to close the doors
and that it would do no good.
Ingram could recall no discussion regarding the Union
with Hamby on April 24 and denied speaking to Hamby
at any other time about the Union . As already indicated
I was favorably impressed with Hamby's apparent truth-
fulness . His claim, however, that Ingram 's remark took
place about 2 weeks prior to May 1 suggests clear error
on Hamby's part since there were no steps taken to con-
tact a union prior to April 23 or 24. On the other hand,
however, Hamby's testimony is consistent with Supervi-
sor Thomas ' concession that she had heard rumors re-
garding union activity during the week before April 24.
Hamby's broaching of the subject of the Union to
Ingram prior to the union meeting on April 24 would
not therefore be unreasonable or implausible . Moreover,
if Hamby was inclined to fabricate the remark attributed
to Ingram to bolster his claim of unlawful discrimination
it is more likely he would have placed the time of the
remark closer to his discharge and after he signed a
union card . He did not do so . All things considered, and
because in demeanor Hamby impressed me as one of the
most truthful witnesses testifying in this proceeding, I
credit Hamby over Ingram and find that Ingram made
the remarks regarding plant closure claimed by Hamby
and I find that such remark violated Section 8(a)(1) as al-
leged . In reaching this conclusion I have fully considered
Respondent's contention that Ingram would not have
made the remark Hamby claims because he received spe-
cific training by Respondent's attorneys ' against such re-
AVECOR, INC.
marks . However, such training did not take place until
May 8 more than 2 weeks after the remark to Hamby.
While Ingram was employed during the union campaign
among Respondent 's employees by the Steelworkers the
preceding year, the evidence indicates he was not a su-
pervisor at that time and received no special precaution-
ary training as a supervisor which would enable him to
recognize the coercive and unlawful nature of the com-
ment attributed to him by Hamby.
d. Larry Willoughby
According to the complaint, Plant Manager Larry
Willoughby was involved in a number of infractions of
Section 8(a)(1) of the Act. Several witnesses testified re-
garding these infractions . Three such witnesses , Darrell
Martin , James White, and Ed Hurst related that Wil-
loughby had interrogated them regarding their union ac-
tivity. Thus, Martin testified that around April 27 or 28
Willoughby talked to Martin in the production area of
the plant and asked him if he knew anything about "this
Union ." Martin said he did not want to talk about it.
Willoughby persisted and asked Martin if he was for it
or against it, and Martin finally replied with a crude and
vulgar analogy indicating his support of the Union.
White attributed no specific response by Willoughby to
the analogy and Willoughby thereafter left the area.
Willoughby, testifying for Respondent could recall no
conversation with Martin about the Union and could not
recall the analogy Martin claimed he used in the conver-
sation.
Martin 's testimony was positive and was persuasively
delivered. Willoughby's testimony, on this point was re-
sponsive to questions framed in terms of whether he re-
called the exchange claimed by Martin. Thus, Wil-
loughby on this point was less convincing than Martin.
Crediting Martin I conclude Willoughby did unlawfully
question him regarding the Union in violation of Section
8(a)(1) as alleged.
Another instance of unlawful interrogation was attrib-
uted to Willoughby by employee Ed Hurst who testified
that during the workweek following April 24, the date
he signed a union authorization card , he asked to talk to
Willoughby . The two engaged in conversation on the
plant floor where Hurst told Willoughby that he was de-
pressed and fearful that he might be laid off like Lionel
Smith , a former supervisor of Respondent , and John
Armstrong , an alleged discriminatee in this case.6 Wil-
loughby told Hurst that as far as he was concerned
Hurst was not going to be laid off or fired and added
that Hurst was a good worker whose work warranted no
complaints from Willoughby. However, Willoughby
asked Hurst if he had gone to the union meeting and
Hurst admitted that he had . Willoughby also asked Hurst
if he had signed a union authorization card , and Hurst
answered affirmatively.
A slightly different version was related by Willoughby
who testified that it was Hurst who initially mentioned
the Union. Thus, when Willoughby asked what was
6 In light of the reference to John Armstrong who was discharged on
April 29 the exchange between Hurst and Willoughby must have been
after April 29.
731
bothering Hurst to cause his depression Hurst responded
that he was mixed up in this "union thing ." Willoughby
admittedly then asked Hurst what he meant and whether
he had signed a union card. Hurst replied that he had
signed a card and was fearful that he would lose his job.
Willoughby then said Hurst was a good worker and gave
him assurances against being fired.
It is clear that Hurst initiated the conversation with
Willoughby because of his concern for being fired.
Under these circumstances I find Willoughby's version
of the conversation entirely plausible and believable. His
candid admission that he inquired whether Hurst had
signed a union card enhances that version . I credit that
version and find Hurst initially indicated to Willoughby
an involvement in union activity as a basis for his con-
cern about being fired . In view of this revelation Wil-
loughby's subsequent question about Hurst's signing a
card did not tend to be coercive. See Rossmore House,
269 NLRB 1176 (1984), enfd. sub nom . Hotel & Restau-
rant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). See also Premier Rubber Co., 272 NLRB 466
(1984). Moreover, and in any event , any coerciveness
was dispelled by Willoughby 's added assurances against
reprisal. Accordingly , I find no violation of Section
8(a)(1) in this incident.
A final instance of unlawful interrogation alleged in
the complaint and attributed to Willoughby was revealed
in the testimony of White. White placed the event about
5 days prior to the June 25 election and testified that
Willoughby talked to him at his work station where Wil-
loughby asked how he felt about the Union and if he had
signed a union card . White replied that he did not know
"a whole lot" about the Union and untruthfully told Wil-
loughby that he had not signed a union card.
Willoughby flatly denied that he had asked White how
he felt about the Union and explained that White had
made it evident how he felt "by his actions throughout
the plant," making unnecessary any question about
White 's union inclinations . However, Willoughby failed
to detail what White's actions prior to the time of the al-
leged questions were which indicated his union support.
While White served as an observer for the Union during
the. election there was no evidence that Willoughby was
aware of his designation as an observer more than a day
or two prior to the election.
I was impressed with White 's sincerity if not the total
accuracy of his recall . I do not believe the question at-
tributed to Willoughby, even though devoid of context,
was a product of his imagination , and Willoughby 's fail-
ure to detail the manner in which White demonstrated
his union support prior to the time of the alleged ques-
tions undermines credence of his denials of the alleged
question . Moreover , the question attributed to Wil-
loughby is consistent with his questioning of Martin
noted above. Accordingly, I credit White and find that
since it was not established that White had overtly dis-
played his union support prior to that time Willoughby's
question of White violated Section 8(a)(1) as alleged.
Martin and Hurst also testified in support of complaint
allegations that Willoughby threatened employees with
more onerous working conditions due to union activities,
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threatened employees with reprisals , a curtailment of op-
erations and a loss of benefits if employees engaged in
union activities . Martin 's testimony was also relied upon
by the General Counsel to support complaint allegations
that Willoughby promised employees unspecified benefits
for refraining from union activities and unlawfully solic-
ited employees to withdraw their support for the Union
and provided them assistance in this regard . Other wit-
nesses corroborated various aspects of the testimony of
Martin and Hurst and still others testified as to other
conduct of Willoughby of the same nature.
Martin's testimony placed most of Willoughby 's threat-
ening remarks in a speech to assembled employees
around 3:30 p.m. on or about May 14, when a general
pay raise, also alleged to be unlawful and discussed fur-
ther below, was announced . Martin related that at the
employee meeting Willoughby told employees that they
had a union they would be starting out on a minimum
wage scale and they would not have the right to speak
to the "main people" like they had before. Further, Wil-
loughby said that employee mistakes "wouldn't be let go
as easy" so that if employees "messed up" on their ma-
chines they would be "wrote up" a lot quicker than
before the Union came in, and the foremen would be
"hassling" them more.
Hurst was less certain about the date of the employee
meeting at which Willoughby spoke but confirmed that
Willoughby said if the Union came in they would start
off paying minimum wage. He added that Willoughby
said that all activity with respect to hiring people or
bringing in new machines would be set aside until "all of
this was blowed over." Hurst also confirmed that Wil-
loughby said that with the Union in, supervisors would
be more strict.
Willoughby admitted speaking to the assembled em-
ployees on May 14. He identified Leonard Klarich, presi-
dent of Respondent , Ed Lale, Sr., executive vice presi-
dent , and Robert McLean, senior vice president , as being
present. He further admitted that the subject of the meet-
ing was the union organizing campaign , and said Klarich
made most of the presentation at the meeting stressing
Respondent 's position that employees did not need a
union.7 In this regard Willoughby testified with testimo-
nial support from Klarich that Klarich brought employ-
ees up to date on Respondent 's expansion efforts which
were nearing completion. However, Klarich pointed out
that plans to move a machine from Respondent 's plant in
Kansas City to Vonore were being held in abeyance until
they could determine what their cost of operation would
be in Vonore . 8 Regarding the reference to minimum
wages, Willoughby testified he told employees that when
you go to negotiations everything was up for grabs, that
it was a big horse trade, that there were swaps and
trades, that everything the employees had would be on
the table, and the only thing guaranteed was that the
Federal government guaranteed that employees would
be paid at least minimum wage . Regarding the other
statements attributed to him , Willoughby said he could
not recall any remarks about supervisors hassling em-
ployees but did tell employees that the mode of oper-
ation would change because a third party (the Union)
would influence Respondent 's decisions , that they had
rules to go by and could not make exceptions to the
rules, and to do otherwise would establish precedents
that would haunt them later. He could recall no state-
ments regarding employees getting more wage increases
in the future without a union and denied saying that the
Respondent would not allow a union.
Klarich generally supported Willoughby's testimony
regarding the May 14 meeting , but appeared more vague
in his recollections . However, he admitted that he had
told employees that they would get more raises without
a union.9 McLean testified but did not address the re-
marks at the May 14 meeting . Ed Lale Sr. admitted his
attendance at the meeting but his recollection was clear-
ly vague regarding what was said.
The frailty of human recollection is such that people
frequently report their own conclusions regarding com-
ments made to them or in their presence as the substance
of the comments themselves . Moreover, individuals testi-
fying about their own remarks often relate what they
said or, at least, intended to say in more explicit language
than that actually used . These tendencies make particu-
larly difficult the determination of violations of Section
8(a)(1) of the Act which frequently turn on nuances in
emphasis and the use of precise wording . This difficulty
is exacerbated where only a few witnesses of a much
larger group who heard the comments testify on the sub-
ject, and most of these cannot be regarded as unbiased.
However, considering all the testimony on the May 14
meeting including admissions of Respondent's witnesses,
and my sense of the record as a whole, I am persuaded
that Willoughby told employees, as Martin and Hurst
testified, that employees ' risked a return to minimum
wage if the Union were elected. That is the clear mes-
sage Willoughby intended to convey. However, I do not
view that statement as unlawful in the context claimed
by Willoughby , i.e., that it would have to be a product
of negotiations, a context not clearly and credibly con-
tradicted by any of the General Counsel 's witnesses. I
therefore find the statement did not violate Section
8(a)(1) of the Act.
I credit the testimony of Martin and Hurst to the
effect Willoughby said Respondent would be more strict
on employees if a union represented them . I find Wil-
loughby's explanation of his version of the comment
somewhat hollow and unconvincing and find that the lis-
tening employees received the intended message that
there would be no exception to strict enforcement of
rules that might "haunt" Respondent and that the lenient
atmosphere then enjoyed would not survive union repre-
7 Klarich , on the other hand , said Willoughby was the principal speak - 9 Respondent in its brief contradicts the record where it shows this ad-
mission by Klarich , and contends that its counsel's notes, attached to the
a The machine was in fact moved from Kansas City to Vonore around brief, contradict the admission There was no motion to correct the
er
July 1 However , due to a mishap a portion of the shipment was dam - record filed and served on the other parties in this case, however. Ac-
aged so that the machine was not installed and did not become operation- cordingly , and in the absence of any agreement among the parties regard-
al in Vonore until much later ing any record changes , the record will stand in its present form
AVECOR, INC.
sentation . I find Willoughby' s remark to be a clear threat
of more strict rule enforcement , and, accordingly, a vio-
lation of Section 8(a)(1).
In the absence of specific contradiction by Wil-
loughby, and also because Klarich admittedly made a
similar remark at the same meeting as discussed below, I
also credit Martin 's testimony that Willoughby said em-
ployees would get more benefits without a union. Ac-
cordingly, I conclude , as the complaint alleges, that Wil-
loughby promised employees unspecified benefits in vio-
lation of Section 8(a)(1) of the Act.
Hurst's testimony regarding statements concerning the
decision not to bring in a new machine was generally ad-
mitted by both Willoughby and Klarich. Thus, Klarich
testified that Willoughby told employees that the deter-
mination regarding the transfer of new machinery from
Respondent 's Kansas City plant was being held in abey-
ance "until a determination was made , where we stood
with the Union as far as operating cost ." Willoughby's
version was that employees were told the movement of
the equipment was "put in abeyance until we could de-
termine what our operation mode and what our cost of
operation was going to be in the Tennessee plant." Re-
spondent argues that Willoughby 's reference to holding
the decision in abeyance did not constitute an unlawful
threat because it was not union organization per se
which was a determining factor, but rather operating
costs which might be affected by contractual terms with
the Union which was Respondent's concern . Moreover,
Respondent 's brief asserts that Willoughby's remarks
were responsive to an employee question and it was not
Respondent 's intent to capitalize upon the point.
The existence of a violations of Section 8(a)(1) is not
based upon Respondent 's intent but rather upon whether
Respondent 's conduct may be reasonably construed as
tending to coerce or restrain employees in the exercise of
their Section 7 rights . Neither the actual effect of Re-
spondent 's conduct nor the subjective response of em-
ployees is determinative . NLRB v. Huntsville Mfg. Co.,
514 F.2d 723, 724 (5th Cir. 1975); Island Creek Coal Co.,
279 NLRB 858 (1986). However, Willoughby's reference
to the operating costs of the new machine, a reference
not specifically contradicted by the General Counsel's
witnesses and therefore credited , reasonably tied the de-
cision to defer installation of the new machine to eco-
nomic factors potentially stemming from employee union
representation rather to representation itself. According-
ly, and also because the evidence falls short of establish-
ing that Respondent 's decision to defer installation of the
machine under consideration represented any risk to the
job security or potential for advancement of any unit em-
ployee and therefore not likely to be viewed as threaten-
ing by employees , I find Willoughby 's statement did not
violate Section 8(a)(1) of the Act. Cf. Pilot Freight Carri-
ers, 223 NLRB 286 (1976).
White was apparently on vacation at the time of Wil-
loughby's May 14 speech to employees, but he testified
to other remarks of Willoughby to assembled employees
2 to 3 days before the election. He testified Willoughby
told employees not to expect any favors similar to those
given in the past if the Union came in . White recalled
still another meeting some 3 weeks before the election
733
where Willoughby spoke. He identified President Klar-
ich and Executive Vice President Ed Lale, Sr. as also
being present . Since all three men spoke to the employ-
ees, White was uncertain which one said it but testified
"they" said he did not need a union to represent them,
that Respondent did not have to negotiate , that Respond-
ent did not have to do anything it did not want to do,
and that employees could go down to making $3.35 an
hour.
Willoughby did not specifically respond in his testimo-
ny to that of White in the foregoing respects. I credit
White here regarding the remark attributed to Wil-
loughby at the meeting 2 to 3 days before the election
regarding not expecting favors . It is in keeping with
those found to have been made at the May 14 meeting. I
find the remark unlawful and violative of Section 8(a)(1),
since the clear import was that past leniency for employ-
ees would be abolished if they selected the Union to rep-
resent them . I do not, however, credit White regarding
the statements claimed to have been made 3 weeks prior
to the election . White was unable to specifically identify
who made the remarks thereby rendering unreliable his
accuracy on what was said.
According to the General Counsel, White's testimony
also establishes an unlawful solicitation of grievances by
Willoughby at the meeting a few days before the elec-
tion . White testified that at the meeting a dispute arose
between Willoughby and White regarding the amount of
a raise given White, and Willoughby told White to shut
up. However, Lale directed Willoughby not to tell em-
ployees to shut up and added that he was there to hear
the people talk. Lale said that if anybody had anything
to say he wanted to hear it and asked employees if they
had any problems . White responded by noting that his
problem was that his supervisor , Joe Ingram, would not
speak to him at the time. Lale said he would have White
and Ingram to get together to see what could be done.
Since there is no evidence that Willoughby , as opposed
to Lale, solicited any grievances of employees , at this
meeting I must conclude that the Respondent did not
through Willoughby unlawfully solicit grievances. The
issue regarding such a violation attributable to Lale will
be discussed below.
There is little dispute concerning the allegation involv-
ing Willoughby's unlawful solicitation of employees to
withdraw their union support . Martin testified , and Re-
spondent concedes , that at the May 14 meeting with em-
ployees Willoughby distributed to all employees a
"Notice" to employees with copies of a form letter to
Union District Director John Williams attached along
with an unstamped envelope addressed to Williams. The
"Notice" related that a number of employees had asked
what they could do about "cancelling out of the Union."
The notice further indicated that employees could try to
cancel the union obligation , and if they wanted to do it,
and it was strictly up to them , they could write a letter
to the Union like the one attached. The notice signed by
Vice President McLean and Willoughby requested that
employees let them know if they had any other questions
or needed their help . The attached letter addressed to
Union Representative Williams stated : "I am an employ-
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ee of Avecor, Inc. I want to cancel my interest in and
obligation to your union . I do not want to be a member
of or represented by your union."
Martin testified that only employee Mac Coley asked
any questions at the meeting regarding the "Notice" or
withdrawal procedure . However, Martin did not specify
the questions asked by Coley and related only that Coley
expressed interest in the notice and attached letter.
In Mariposa Press, 273 NLRB 528 (1984), the Board,
citing R. L. White Co., 262 NLRB 575 (1982), stated at
529:
An employer may lawfully inform employees of
their right to revoke their authorization cards even
if employees have not solicited such information, as
long as the employer makes no attempt to ascertain
whether employees will avail themselves of this
right or offers any assistance or otherwise creates a
situation in which employees would tend to feel
peril in refraining from such action.
Here there was no evidence that in distributing the with-
drawal letters Respondent sought to determine who
would use them. Respondent did not ask for executed
copies of the letters nor did it lend any further assistance
in providing stamps or in mailing the letters. Mariposa
Press would appear to be dispositive in finding the ab-
sence of any violation . Here there was no evidence Re-
spondent attempted to ascertain who used the letter or
offered assistance in executing or mailing the letters or
otherwise suggested to employees that failure to use the
letters would somehow put their jobs in jeopardy. Ac-
cordingly, I find no violation of Section 8(a)(1) with re-
spect to distribution of the form withdrawal letters. See
also Brunswick Food & Drug, 284 NLRB 661 (1987).
Former employee Robby Belcher testified about an
employee meeting at which Willoughby spoke and
placed it 2 or 3 days before the election . He related that
Willoughby said the Company did not need a union, that
employees would do better without a union , that the
company would not allow a union, that he knew about
unions and that they worked in the sixties but now they
were no good.
I do not credit Belcher's testimony since he was an
equivocal and uncertain witness who impressed me as
generally unreliable . Further, his testimony was not sup-
ported by any other witnesses . Accordingly, I find no
violation of the Act by Willoughby based on Belcher's
testimony.
e. Ed Lale Sr. and Leonard Klarich
The complaint alleges that Respondent through Exec-
utive Vice President Ed Lale Sr. on May 14 promised
employees unspecified benefits if employees refrained
from joining the Union, and that on June 22 he threat-
ened employees with a loss of benefits if they joined or
engaged in union activity and solicited grievances of em-
ployees to discourage their union activities. Counsel for
the General Counsel relied upon Martin's testimony that
Lale at the May 14 meeting told employees that the re-
marks of Willoughby already related above were true
and added that employees would be getting more pay
raises in the future without a union . But Martin failed to
testify regarding a June 22 threat of Lale and that allega-
tion of the complaint was dismissed upon Respondent's
motion at the conclusion of the General Counsel 's case.
White did testify regarding solicitation of grievances
by Lale at the June 22 meeting and as earlier noted
herein responded to a request for problems by noting the
failure of his supervisor , Ingram , to talk to him . Lale said
he would have White and Ingram get together.
While Lale could recall meetings with employees prior
to the election he could recall no specific meeting in-
volving White . He could not recall asking employees re-
garding their problems , but noted that Respondent main-
tained an "open door policy" under which all employees
could approach management regarding their problems.
In view of the vagueness of Lale's testimony and his
poor recall I credit White where he contradicts Lale.
However, under the circumstances described by White I
do not view Lale's remarks as establishing the unlawful
solicitation of grievances . Rather, on White's testimony
Lale's remarks appear to be a spontaneous response to
Willoughby's effort to preclude White from speaking. In
light of this, and in the absence of evidence contradicting
the prior existence of Respondent 's open door policy, as
well as the fact that Lale did not expressly on implicitly
promise to remedy any employee "problems," I find Lale
did not unlawfully solicit grievances in violation of Sec-
tion 8(a)(1) of the Act. See Uarco, Inc., 216 NLRB 1
(1974).
One complaint allegation asserts that Klarich on May
14 promised employees unspecified benefits if employees
engaged in union activities . The General Counsel relied
upon Martin 's testimony again to establish the violation,
and Martin in a conclusionary manner related that Klar-
ich simply agreed with Willoughby 's remarks at the May
14 meeting and said that employees did not need a union,
that they would be better off financially without it, and
that they would be getting more "pay wages" in the
future without it.
Klarich , on the other hand , as already set out above
conceded that he had told employees that they would re-
ceive more raises without a union . If Klarich's remark
regarding future raises constituted only an observation
that the May 14 wage increase was not the last and that
there would be future increases when warranted even in
the absence of union representation the remark might be
considered lawful . But if the remark indicated that there
would be additional raises if the Union were rejected as
a quid pro quo for such rejection the remark constitutes
unlawful interference as a promise of future benefits.
Absent clarifying context other than Klarich's further
concession that he advised employees of his antiunion
position , I find the employees , as the General Counsel
contends, likely received the unlawful implication in
Klarich's statement . I therefore find the statement re-
garding the future raises violated the Act as alleged.
Since the remedy for this violation would not be effected
by a finding that Lale repeated the same remark I find it
unnecessary to make any such finding regarding Lale.
Although not specifically alleged in the complaint the
General Counsel in her brief pointed to the testimony of
AVECOR, INC.
Robby Belcher arguing that it established that Klarich in
a meeting with employees 2 to 3 days prior to the elec-
tion told assembled employees that it the Union came in
"they" could or would close the company down. Klar-
ich's testimony contradicted Belcher's . Without regard to
whether this issue was fully litigated by Respondent I do
not credit Belcher's testimony wherever contradicted in
the record , since I have found him to be unreliable and
unworthy of belief. Moreover , there was absolutely no
corroboration of his claims regarding Klarich 's remarks.
Thus, I find no unlawful threat to close by Klarich was
established.
d. Carl Farrell
Farrell was employed by Respondent at all material
times as a production supervisor . The complaint alleges
that Farrell on May 25 solicited employees to withdraw
their support for the Union and on May 24 threatened
employees with discharge if they engaged in activities on
behalf of the Union . t ° These allegations grow out of an
alleged conversation between former employee Belcher,
nonsupervisory quality control employee Mac Coley,
employees Tim Lenoir, and Ed Hurst with Farrell in late
May. Belcher's confusing testimony regarding the con-
versation follows:
We was just talking , you know, about Tidwell
getting fired , and it didn 't seem right cause he
didn't have no writeups nor nothing . And that Mac
Coley's, you know, he-him and Tidwell didn't get
along too well anyway and he said that he felt-
well, what I heard was that Mr. Willoughby-was
that he told Mr. Mac told him if he could find any-
thing on him to get rid of him because he was push-
ing him.
Q. [By Ms . Miller] . Now who said that?
A. Mac Coley.
Q. Okay. Mr. Coley said that Willoughby had
said-
A. That's what we were talking about, I think, he
was just, you know, talking.
Q. But Mr. Coley did say that?
A. Yes, main.
Q. Did Mr. Coley say anything more about Tid-
well's discharge?
A. He said he was the one that got rid of Tid-
well. That he was the cause of Tidwell's getting
fired.
Even after having his recollection refreshed by his
prehearing affidavit and in spite of further leading ques-
tions Belcher failed to clarify Willoughby's, Farrell's, or
Coley's involvement in Tidwell's discharge . Asked what
Coley had said about what he had done to get Tidwell
discharged Belcher responded:
10 Two complaint allegations that Farrell solicited employees to report
union activities of other employees and engaged in surveillance of em-
ployees' union activities were dismissed at the hearing upon motion of
Respondent after the General Counsel 's failure to produce evidence in
support of the allegations
735
It was on account of him losing his cool-blowed
his cool , couldn't handle his job . I don 't think there
was nobody that night that could have handled the
job to tell you the truth.
After having his recollection refreshed by his affidavit
again Belcher was asked whether any additional remark
was made about the reason for Tidwell's discharge
Belcher answered: "Because he [Coley] had pushed
Jimmy [Tidwell] into-you know , he was pushing pretty
hard." In essence then, Belcher testified that Coley was
bragging that he had gotten Tidwell fired. Asked if Far-
rell said anything in the conversation Belcher said Far-
rell only said he wasn 't for the Union and Farrell and
Coley both "sort of asked him if he was for or against
the Union . It was during this conversation that Coley,
according to Belcher, said he would give $50 for any-
body's union card back and Farrell said he would too.
While a witness herein , Hurst did not corroborate
Belcher's testimony regarding the foregoing.
On cross-examination Belcher was asked what Farrell
had said specifically regarding Tidwell 's discharge.
Belcher testified Farrell said Tidwell "got his own self
fired," but then added that Tidwell could handle the job.
I find Belcher 's testimony unreliable and insufficient to
establish any threat of discharge for union activities on
the part of Farrell implicit in any comments relative to
Tidwell. Also, I find nothing credible in Belcher's testi-
mony which would establish that Farrell created the im-
pression of surveillance of employee union activity in the
same conversation , as the General Counsel contends in
her brief even though not specifically alleged in the com-
plaint. Accordingly, I find no violation of the Act based
on these contentions.
Farrell denied being present when Coley offered $50
to any employee for withdrawing their union card. He
responded negatively when asked whether the "fifty dol-
lars and the card issue" came up in any conversations be-
tween him and "any other employee besides" Coley. Be-
cause Farrell impressed me as generally more credible
than Belcher I credit Farrell regarding the denial. How-
ever , as already noted Farrell 's testimony establishes that
he first heard from Willoughby about the $50 offer to
any employee who could get their card back from the
Union and passed the offer on to Coley, a unit employee,
prior to May 14. I find such conduct establishes a viola-
tion of Section 8(a)(1) of the Act, as the complaint al-
leges, whether or not either Farrell or Coley in Farrell's
presence ever repeated the offer in the presence of
Belcher.
2. The agency status of Mac Coley and the coercive
conduct attributed to him
The complaint alleges that Coley, notwithstanding the
fact that he did not enjoy supervisory status, was an
agent of Respondent and attributes to him the same un-
lawful conduct attributed to Farrell in the complaint as
set forth above and occurring on the same dates. The
evidence supporting the allegations is found in Belcher's
testimony already related above. The General Counsel's
theory, in which the Charging Party concurs, is that
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Coley was an agent of Respondent by virtue of his ap-
parent involvement in the discharge of Tidwell at the di-
rection of Willoughby. I find without regard to Coley's
agency status that Belcher's confusing and conclusionary
testimony is insufficient to establish that Coley did any-
thing at the direction of Willoughby or Farrell to get
Tidwell discharged or to constitute a threat of discharge
to employees generally for union activity. Moreover,
even if otherwise deemed sufficient to establish the com-
plaint allegations on this point, I find Belcher 's confused
testimony unreliable and do not credit it.
3. The alleged unlawful wage increase
It is undisputed that Respondent gave its unit employ-
ees a general wage increase amounting to 50 cents per
hour effective May 14 . It is also undisputed that the
Union was not notified in advance of the wage increase.
The complaint alleged that the wage increase violated
Section 8(a)(1) of the Act and the General Counsel
argued that the increase was designed to dissuade em-
ployees from supporting the Union and constituted rank
interference . It has long been held that grant of a general
wage increase to induce employees to reject union repre-
sentation violates Section 8(a)(1) of the Act . See J. J.
Newberry Co., 249 NLRB 991 (1980); Raley's Inc., 236
NLRB 971 (1978). Here Respondent 's wage increase was
without apparent precedent . The grant of the increase in
the amounts and number to whom granted , coupled with
the timing of the announcement after the start of the
union activity establishes a prima facie case that the in-
crease was a direct response to the union activity and
was designed to discourage it.
An employer in the face of organizing activity among
his employees is required to grant or withhold benefits in
the same manner and to the same extent it would have in
the absence of such organizing activity. J. J. Newberry
Co., supra at 992. Respondent here defends on the con-
tention that the wage increase was planned prior to the
union activity and was made possible as a result of
economies accomplished by the change over from a
three 8-hour shift operation per day to a two 10-hour
shift operation on April 27. In this regard Willoughby,
with support from Klarich testified that in the fall of
1986 Willoughby , a former plant manager at Respond-
ent's Kansas City facility , recommended to Klarich that,
consistent with the operation in Kansas City, Respondent
implement two 10-hour shifts per day, 4 days a week,
rather than the three 8-hour shifts, 5 days a week nor-
mally operated by Respondent at Vonore. Willoughby
related that such a change would cut absenteeism and fa-
cilitate maintenance and shipping . Klarich was receptive
and told Willoughby to explore it with the "people."
Subsequently , Willoughby checked with supervisors and
some employees who endorsed the proposal. Thereafter,
toward the last of January or the first of February Wil-
loughby discussed the matter again with Klarich this
time coupling his proposals with the elimination of the
two-man operation of two 1-B Banbury machines. Going
to a one-man operation of the Banburys was consistent
with the method of operation in Kansas City and could
be accomplished as a result of expansion construction ini-
tiated the preceding December which would enlarge the the record indicates, about half the worktime
platforms on which the Banburys were located to facili-
tate storage of materials near them and thereby eliminate
the need for an extra man to constantly resupply the ma-
chines." Willoughby explained to Klarich that these
changes would free two men for other productive work
and allow the elimination of third -shift supervision, all at
savings to Respondent . Klarich agreed to the plan and
told Willoughby that he would split any savings with the
employees 50/50.
After ascertaining from the construction company
doing the expansion work in late March or early April
that the work would be completed in mid-April, Wil-
loughby met with supervisors and announced that they
would be changing to the two 10-hour shift system ap-
proximately April 27. He further advised them that there
would be cost savings associated with the change which
would be shared with employees on a 50/50 basis. How-
ever, for obvious reasons he did not announce that there
would be any staff reductions associated with the move
although it was contemplated that two supervisors
would be terminated.
The shift operation changes, according to Willoughby,
were announced to employees by Willoughby during the
first week of April , along with a general announcement
that savings accomplished would be split with the em-
ployees. On April 23 or 24 Respondent terminated two
supervisors , Lionel Smith who generally ran the third
shift although Respondent did not always operate a third
shift, and Jack Million, a color room supervisor . No non-
supervisory employees were laid off . After the supervi-
sors' layoff was announced , a notice was posted that the
two 10-hour shifts, 4-day weeks, would begin operation
on 27 April.
Respondent did not announce the amount of the wage
increase , Willoughby testified , until May 14 because it
was unclear what savings had been achieved with the
changes. Moreover , Respondent had to ascertain from
counsel whether the increase could be given in light of
the union campaign . Further, there was a delay in an-
nouncing the increase and making it effective because,
according to Willoughby , Klarich wanted to see if the
new shift system worked . The raises were first reflected
in the paychecks received by employees on May 21. The
amount, 40 cents per hour for each unit employee, was
computed based upon the savings from the salary of the
two eliminated supervisors and the pay of the two Ban-
bury support employees who were shifted to other pro-
ductive work.
Willoughby 's testimony in most of the foregoing re-
spects was supported by Klarich, and employee Don
Cordell who confirmed that employees had been told of
the shift change and wage increase plan, but not the
amount of the increase, before the construction was com-
pleted and the shift change implemented . Supervisor
Ingram likewise supported Willoughby 's contention that
employees had been told that a wage increase would
follow the change to the two 10-hour shift operations.
Further, employee James Bucky Rodgers , one of the ini-
" The resupply man customarily rotated with the machine operator,
AVECOR, INC.
tiators of the union campaign who subsequently reversed
his union support testified Willoughby announced to a
meeting of second -shift employees prior to implementa-
tion of the shift changes that there would be savings re-
sulting from the changes and that Respondent would
split them 50/50 with employees . Robby Belcher who I
have previously found to be an unreliable witness testi-
fied on direct examination with uncharacteristic certainty
and clarity that the employees had been promised the
raise when the third shift was eliminated and even before
employee talk about a union began.
From the foregoing testimony of Respondent's wit-
nesses whom I credit on this point and considering the
record as a whole, I conclude that Respondent had
planned in advance of the union campaign to implement
the new two shift operation. It obviously had discharged
two supervisors in anticipation of the change and clearly
had done so before the union meeting on April 24 and
probably before the Union had even been contacted.
Moreover , it is incomprehensible that Respondent could
have implemented a change in shift operation, on 27
April with all its attendant scheduling problems, simply
as a response to a union meeting which took place at
midnight on April 24. Since it must be concluded that
the change was previously planned it must further be
concluded that the reasons given for the change were
reasonable and valid including the aim of accomplishing
savings and the way such savings were to be accom-
plished . Under the circumstances , the willingness to split
the savings with employees as a motivational device is
understandable even where as Respondent admits, Re-
spondent was generally operating at a loss . Finally, I am
persuaded that Respondent had in fact announced prior
to the union campaign that a general wage increase
would be given , since I credit the testimony of Cordell
and Rodgers in this regard . Cordell struck me as particu-
larly forthright . Rodgers was less persuasive , and he ob-
viously was intent on currying favor with Respondent by
his overly eager contention that Willoughby announced,
prior to the fact, the elimination of supervisors as a
factor in the savings , an announcement Respondent's
other witnesses denied. Accordingly, I find the grant of
the wage increase announced on May 14 was consistent
with Respondent 's intention expressed prior to the union
campaign , was not responsive to the union campaign,
and was therefore not violative of Section 8(a)(1) of the
Act.
C. The Alleged Violations of Section 8(a)(3) of the Act
1. The discharges
a. Jeff Tidwell
Tidwell was employed by Respondent in May 1985
and worked as a sample maker until he became a quality
control trainee in January or February 1987. He was
under the direct supervision of Sandy Thomas, but at the
relevant times herein he worked on the second shift
when Thomas was not present although she could be
contacted by Tidwell by telephone at her home in the
event problems arose . As a quality control trainee it was
Tidwell's function to inspect incoming pigments and out-
737
going products . He was further required to inspect prod-
ucts during the production process to ensure color con-
formity of the product with customer requirements.
Tidwell's involvement in securing the Union 's tele-
phone number, his attendance at the union meeting in
Vonore around midnight on April 24, and his signing of
a union authorization card on that occasion has already
been noted above . Tidwell also solicited employees Steve
Smith to sign a union authorization card in the employee
dressing room at the plant on April 27. While Tidwell
identified Supervisor Joe Ingram as being present in the
dressing room along with employee Don Cordell on this
occasion , there was no specific claim by Tidwell that
Ingram either heard or observed the solicitation of
Smith.
Other evidence of employer knowledge of Tidwell's
union activities was claimed by Tidwell in comments he
attributed to Darrell Akins and Sandy Thomas. Thus,
Tidwell related that on April 27 Akins approached him
and stated that he had heard the employees were going
to go with a union . When Tidwell replied they were
going to try Akins responded that he hoped they got it
in.
Tidwell was discharged on April 28 , Respondent
claims, based on events which took place during the
second shift at the plant on April 24 . Tidwell testified
that he was told that evening that Respondent had to
start up a run of 40,000 pounds of material, a large order,
which would be shipped out the following Monday. Ac-
cording to Tidwell, he had difficulty with the production
that night and , after repeated checks and corrections,
was never able to adjust the color of the product to ac-
ceptable conformity even after a telephone contact with
Colleen Dannett , a quality employee Thomas had told
him to contact if he had problems . It was necessary for
production to be halted while corrections were attempt-
ed and adjustments made by Tidwell to ensure quality
apparently causing some frustration on Tidwell's part
and the creation of some tension between Tidwell and
Supervisor Farrell whose primary interest as a produc-
tion supervisor was in seeing that production was
achieved . Tidwell's testimony did not address the details
of this tension or the extent of any interchanges he had
with Farrell regarding the mutual problems confronting
them.
On April 27 after reporting to work Tidwell was
called to the office of Ed Pollard, the laboratory manag-
er, who inquired of Tidwell what had happened at work
on April 24. Tidwell explained the difficulties he had en-
countered, and Pollard had asked Tidwell why he had
not left a note at the end of his shift noting the problems.
Tidwell, consistent with his testimony herein, told Pol-
lard he had left a note but Pollard claimed it was never
found. Pollard informed Tidwell that Tidwell had evi-
dently lost his cool, that Pollard did not feel Tidwell had
handled the job responsibility properly. Tidwell conced-
ed herein that he had been upset at being unable to re-
solve the problems on April 24 but felt that he had not
"lost his cool" or lost control of the situation. In any
event, Pollard said he would give Tidwell the option of
returning to his old lower paying job as sample maker
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
without a warning or "write up" or he could remain in
quality control but would be given a "write up," and
that in the future if he didn't "make it" Tidwell would
go out the door or back to sample making . Tidwell
opted for retaining the quality control position with a
write up. Pollard told Tidwell to come back the next day
and Pollard would have a "write up" for Tidwell to
sign.
On April 28, according to Tidwell, he talked to
Thomas upon reporting to work, and she advised him
that the trouble he encountered on April 24 with respect
to the corrections he had attempted to make had been
traced to bad lots of pigment . She also told him that she
believed his claim that he had left a note regarding the
problem although it had never been found.
On the same day Tidwell reported to Pollard's office
for the "write up" but was told by Pollard it was not
ready. Later, Thomas took Tidwell to the office saying
Pollard and Willoughby wanted to see him. There Wil-
loughby informed Tidwell that he did not feel Tidwell
could handle the quality control job. Further, he said
that Tidwell should not have been offered the option of
going back to the sample making position and added that
his policy was "if you don't make it, you go out the
door." Willoughby concluded by saying it would be best
for everybody if Tidwell were terminated . Tidwell pro-
tested the discharge claiming that the problems he had
encountered were not his fault and questioned Wil-
loughby's "policy" of not letting employees be trans-
ferred from jobs they could not successfully perform.
Willoughby persisted in his position and Tidwell was dis-
charged . His separation notice, signed by Willoughby
gave an explanation for the discharge : "Poor workman-
ship & becoming emotional to the point of effecting
work."
It is undisputed that Tidwell had received a favorable
job appraisal from Thomas on April 1. On a rating scale
of A to E with A being the highest, Tidwell was rated A
in two of 10 categories, B in four, and C in four. Thomas
had also noted on the appraisal that she felt Tidwell was
"making progress in learning Q.C. procedures." As a
result of the appraisal Tidwell was given a 25-cent-per-
hour raise effective April 1.
Under Wright Line, 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)), it is incumbent upon the General
Counsel to establish a prima facie case that the effected
employee was the object of discrimination as a result of
his union or protected activity. Thereafter, it is incum-
bent upon Respondent to demonstrate that it would have
taken the same action against the employee even absent
his protected activities . I am persuaded that a prima facie
has been established with respect to Tidwell 's discharge.
Elements of the prima facie case are Tidwell's undis-
puted union involvement and Respondent 's admitted
early knowledge of the union campaign through Supervi-
sor Farrell . Other elements of the prima facie case in-
clude Respondent 's specific knowledge of Tidwell's in-
volvement in union activity by virtue of Tidwell's testi-
mony, which I credit in this regard , that he and certain
other employees had a discussion with Farrell about
going to the union meeting prior to the meeting, and by
virtue of Tidwell's further testimony which is not contra-
dicted and is therefore credited, that Supervisor Darrell
Akins had commented to Tidwell the next workday fol-
lowing the meeting that he heard "they" were trying to
get a union in. On the other hand , crediting Thomas
over Tidwell I do not credit that testimony of Tidwell
which suggests that Thomas warned him to watch out
about his union activities . The remaining elements of the
prima facie case reflecting disparate treatment of Tidwell
are found in the questionable validity of the basis for the
discharge , Respondent 's change of position regarding the
discipline imposed on Tidwell , and the timing of the dis-
charge in relation to the beginning of the union activity.
Respondent 's position was that Tidwell had encoun-
tered some quality control difficulties on his April 24
shift, that he responded to this difficulty by "losing his
cool," that such response justified discipline , that such
discipline was decided upon by Lab Manager Pollard
without knowledge of a prior determination by Klarich,
based on similar conduct of Tidwell, that if Tidwell re-
peated his offense he would be discharged, that Tidwell's
misconduct on April 24 and Pollard 's discipline based
thereon was brought to Klarich 's attention , and that
Klarich reversed Pollard's decision and ordered Tid-
well's discharge . Respondent through its witnesses
denied that the discharge was related to union activity in
any way.
Respondent's evidence regarding the alleged miscon-
duct of Tidwell on April 24 as well as on prior occasions
involving a former black supervisor , Lionel Smith, was
set forth primarily in the testimony of Farrell . Farrell
testified that he witnessed an encounter between third-
shift Foreman Smith, and Tidwell during the first part of
the year when Tidwell cursed Smith and called him a
black SOB . Farrell testified that he complained to Super-
visor Sandy Thomas the following day about this con-
duct . Thomas confirmed Farrell 's complaint in her testi-
mony and added that she discussed the matter with both
Smith who verified the account,12 and Tidwell. Thomas
noted on a personal calendar that she gave a verbal
warning to Tidwell on this matter on February 11, and
she testified that Tidwell was receptive to her critical re-
marks and warning that such conduct could cost him his
job. Thomas also testified that even though she was not
Tidwell's direct supervisor at the time she had given
Tidwell a verbal warning on November 21, 1986, based
upon a similar encounter with Smith . No written warn-
ings were issued and no notation of a verbal warning
was placed in Tidwell's file on either of these occasions.
Farrell testified that on the evening of April 24 Tid-
well encountered two "retains" 1S one of which involved
a color problem which Tidwell found difficult to cor-
rect. Farrell related that Tidwell 's response was to
loudly curse and kick jugs and cans around the laborato-
ry and to complain that the job was more than one man
12 Smith , having been laid off by Respondent around April 24, was not
called as a witness in this matter by any party
12 Retains were defined as product samples taken from the production
line for testing by quality control for conformity with lab samples Pro-
duction lines are stopped while the samples are approved
AVECOR, INC.
could handle. Farrell conceded that Tidwell's conduct
was not directed at Farrell as a supervisor . While there
was no evidence that Farrell undertook any disciplinary
action himself or made any attempt to chastise Tidwell
for his behavior, Farrell testified he did report the matter
to both Thomas and Lab Manager Pollard the next work
day and complained that Tidwell was "killing his pro-
duction" and that he wanted Tidwell off the shift.
After receiving Farrell's complaint on April 27
Thomas again talked to Tidwell telling him he could not
"blow up" at the supervisors . Tidwell replied, according
to Thomas that he understood and was sorry and that he
had just lost his "cool ." Subsequent , to her talk with
Tidwell Thomas testified she reported the incident in-
cluding her discussion with Tidwell to Lab Manager
Pollard who inquired if she thought her remarks to Tid-
well had done any good. Thomas reported she believed
that they had. She was not aware of the decision to dis-
charge Tidwell until minutes before it took place when
she learned from Willoughby on April 28 that Tidwell's
conduct could no longer be tolerated.
Pollard did not testify , but Respondent does not dis-
pute Tidwell's testimony regarding his discussion with
Pollard and the discipline options offered Tidwell. Testi-
mony was offered , however, regarding the reversal of
Pollard 's decision on Tidwell 's discipline . Thus, Klarich
testified he learned of the incident , apparently the second
one, between Tidwell and Smith and was incensed par-
ticularly by what he viewed as racial slurs directed at
Smith by Tidwell. He gave orders to Willoughby and
Vice President McLean that if Tidwell "ever again
sounds off or loses control" he was to be "fired on the
spot ." 14 He subsequently learned on April 28 in a tele-
phone call from McLean when Klarich was in California
that Tidwell had again been involved in an incident and
that Pollard had offered Tidwell alternatives amounting
to punishment less than dismissal . Without knowing fur-
ther details Klarich ordered Pollard reversed and Tid-
well discharged. Willoughby and McLean generally cor-
roborated Klarich's testimony in the foregoing respects.
Willoughby explained in his testimony that he had not
been aware of Tidwell's conduct on April 24 and Pol-
lard's response to it until he was called to McLean's
office on April 28. With respect to the refusal to allow
Tidwell to return to his old position as a sample maker
Willoughby said it was not his policy to allow employees
to revert to lesser positions if they were unable to per-
form the jobs to which they had been promoted. He ac-
knowledged, however , that at the time of the discharge
Tidwell had pointed out that Willoughby had allowed an
employee utilized as a lineman to remain as a Banbury
operator , a lesser position . However, Willoughby distin-
guished the situation by pointing out the employee in-
volved had been reduced to the lower position only after
the employee had given notice of intent to quit , a notice
he subsequently withdrew after a new person was
trained in his higher rated job.
14 Klarich related that he talked to Tidwell directly about the matter
and told him he did not want to see it happen again However, he did
not specifically warn him that he would be terminated if it happened
again . Further, it is not clear that he told Tidwell exactly what he did
not want to see happen again.
739
While Klarich had testified that he had instructed Wil-
loughby to give a written warning to Tidwell after the
February incident with Smith, Willoughby failed to cor-
roborate such an instruction . It is clear that Tidwell did
not in fact receive a written warning for the incident.
I am persuaded by the record as a whole and that tes-
timony which I deem either uncontradicted or otherwise
credible that Tidwell encountered difficulties with the
job on April 24 which he reacted to in the manner relat-
ed by Farrell . Thus, a basis for his discipline appears to
have existed . But his conduct was specifically different in
type from that which he had previously been disciplined,
insubordinate conduct to a supervisor . Farrell never
claimed that Tidwell was insubordinate to him on April
24. Under these circumstances Pollard's response to Tid-
well's conduct after considering Thomas' input appears
as an imminently reasonable response . After all, no evi-
dence presented herein establishes that Tidwell was at
fault in the inability to remedy the quality problems he
encounted on April 24. It is in Respondent 's reversal
action that I believe Respondent has demonstrated that
ulterior motivation which persuades me that Respond-
ent's discharge of Tidwell was pretextual and responsive
to his union activity . Obviously , Pollard had never been
advised of Respondent 's claim of a prior determination
to discharge Tidwell for sounding off or losing control.
The fact claimed in Willoughby 's testimony that Pollard
was a relatively new lab manager only having been
"aboard" 3 or 4 weeks ' 5 at the time is no excuse for fail-
ing to advise him of past job deficiencies of those rela-
tively few people under his supervision. Clearly there
was nothing in Tidwell 's personnel file which would call
Pollard 's attention to any prior alleged misconduct of
Tidwell, and while Pollard did confer with Thomas re-
garding her assessment of the Tidwell situation and back-
ground , she clearly related nothing , and obviously was
aware of nothing, which would preclude Tidwell's con-
tinued employment.
Respondent's reversal of Pollard 's decisions regarding
Tidwell is strong evidence of its unlawful motivation.
But further evidence of such motivation is found not
only in the timing of Tidwell's discharge at the very
outset of the union activity and Respondent 's awareness
of it, but also in Respondent 's failure to conduct any in-
vestigation of Tidwell's conduct independent from that
of Pollard . Klarich admittedly did not seek to ascertain
any facts of Tidwell's conduct on April 24 before direct-
ing the reversal of Pollard . There was no concern shown
by Klarich for whether Tidwell had repeated the offense
of issuing racial slurs which Klarich had found so repre-
hensible in the earlier incident. Even the fact that Klar-
ich issued the discharge decision by telephone reflects
the highly unusual treatment of the Tidwell situation.
Klarich could not recall a specific incident of having
'S Willoughby's estimate of how long Pollard had been employed as of
April 28 was never substantiated. On the other hand, it is clear that Pol-
lard signed a payroll change form for Tidwell, as did Willoughby, on
April I giving Tidwell a raise It would thus appear that Tidwell had
been employed by Respondent a sufficient period of time prior to April 1
to contribute to the evaluation of Tidwell
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made a previous decision to discharge a rank -and-file em-
ployee by telephone.
The fact that Respondent discharged Tidwell within 1
month of his last wage increase also belies its present
contention regarding the gravity of Tidwell's April 24
conduct . It is to be particularly noted that Willoughby
signed the payroll change form granting Tidwell 's raise
even though that form showed that Tidwell's conduct
was "good ." Willoughby noted no exceptions to this
marking of the form notwithstanding his claimed knowl-
edge of Tidwell's prior misconduct in February, a time
only 6 weeks earlier, and Klarich 's alleged instructions to
discharge Tidwell for any subsequent misconduct. The
grant of an increase and the approval of the form so
marked is clearly inconsistent with the position taken by
Respondent at the time of Tidwell's discharge.
Finally Respondent 's refusal to consider a demotion
for Tidwell as an alternative to discharge reflects a
steadfast determination to be rid of Tidwell, a determina-
tion which points again to discriminatory motivation.
Willoughby's failure to advise Pollard of the policy
against demotions again belies its existence as anything
other than one applied on a selective basis.
Considering the foregoing I do not believe that testi-
mony or evidence of Respondent's witnesses to the effect
that Tidwell's discharge was for cause unrelated to union
considerations . Rather, I conclude Respondent has failed
to rebut the General Counsel 's prima facie case that the
discharge of Tidwell was responsive to his union activi-
ties . Accordingly , I find as the complaint alleges, that the
discharge of Tidwell was in violation of Section 8(a)(3)
and (1) of the Act.
b. John Armstrong
Armstrong was initially employed in October 1985 but
was laid off after 2 weeks . He was recalled in April 1986
and worked until his discharge on April 29 for "poor
work performance." Armstrong , a utility worker at the
time of his discharge , testified that he was approached by
Rodgers on April 24 about attending a union meeting
and joining the Union. Armstrong expressed interest but
did not attend the meeting . However, he testified he was
given a union authorization card by employee Ed Hurst
about April 25 and executed the card on that date and
returned it to Hurst. t 6
Joe Ingram 's approach to Armstrong regarding the
Union on April 27 has already been related. Armstrong
related that also on April 27 he overheard Foreman Dar-
rell Akins tell leadman Lance Coon that if Armstrong
asked for any kind of a day off or anything, Akins
wanted him fired, and Akins then asked Coon to ask
Armstrong if he had anything to do with the Union. On
cross-examination Armstrong expanded on the Akins-
16 Armstrong 's card bears the date of April 25 but was entered with a
different pen than that used to enter the other information , and Arm-
strong said he did not date it Ed Hurst denied that he had spoken to
Armstrong about a union card . Armstrong was less than a model witness
and his recall was confused and uncertain Hurst was clearly more posi-
tive and I credit his dental that he secured Armstrong 's card It is clear,
however, based on the testimony of Union Representative Hendrix whom
I credit that Armstrong's card was given to Hendrix on April 28 by Rod-
gers.
Coon exchange saying Akins told Coon that if Arm-
strong was late one minute, "I want you to fire him,"
and "If you find out he's got anything to do with the
Union , I want you [to] get rid of him and I want you to
tell me." Armstrong neglected to include either version
of Akins' alleged remarks in either of two written pre-
hearing investigation statements given the Board, al-
though he had referred to questions by Coon about
union activity.
On April 28, according to Armstrong , he was assigned
to run the I B-Banbury machine around 11 a.m. replacing
employee Jerry Millsaps . He noticed after running the
machine 15 to 20 minutes that a large amount of the plas-
tic material being processed was leaking out of the ma-
chine's seals . Such leaking was a normal condition but if
excessive it could interfere with production and even
damage the machine . Armstrong conceded that it was
the function of the operator of the machine to periodical-
ly clean off the excess plastic, either using relief machine
operators or, when necessary , shutting down the ma-
chine before the buildup of plastic at the seals got exces-
sive . Armstrong testified that the buildup of plastic leak-
ing from the seals was greater than he had even seen,
and he told Neal Shaw , the line operator on the floor
below whose operation in part was fed by Armstrong's
machine, that he needed to shut the machine down.
Shaw told Armstrong to keep operating and twice re-
fused Armstrong 's request to summon Foreman Akins.
Ultimately Shaw did call Akins who, upon seeing the
problem, shut the machine down and berated Armstrong
for letting the condition occur . Armstrong admitted that
the machine was down for 2-1/2 to 3 hours during
which time Armstrong and maintenance man Fred
Lawson removed the plastic buildup by chipping away
at it with various tools including crow bars and ham-
mers.
On the following day, Akins advised him that Wil-
loughby and Production Manager Denver Millsaps
wanted his job. Akins then terminated him saying that
Armstrong had too many reprimands. Thereafter, Arm-
strong talked to Willoughby and asked why he had been
laid off. Willoughby responded that Armstrong was not
laid off but was fired. Nevertheless, according to Arm-
strong's testimony , Willoughby said he would look into
the matter.
The elements of the prima facie case of a violation of
Section 8(a)(3) and (1) in Armstrong's discharge as
argued by the General Counsel are Armstrong 's involve-
ment in union activity , Respondent 's knowledge of that
activity inferred on a small plant-small community basis,
Respondent 's union animus as demonstrated by its con-
duct violative of Act in other respects, the alleged threat
of Akins overhead by Armstrong , the timing of the dis-
charge coming so close to the union activity, and the ab-
sence of valid cause for the discharge.
Respondent 's evidence regarding the discharge of
Armstrong was set out primarily in the testimony of
First Shift Production Foreman Akins. Akins described
Armstrong's general job performance as poor and
AVECOR, INC.
claimed he frequently talked to him about it.17 In the
preceding 12 months Armstrong had been given two
"write ups" related to job performance and three related
to excessive tardiness and absenteeism , 18 the latest of
which was dated April 27, although Akins testified he
had already spoken to Armstrong about it the preceding
Friday. Akins testified that on April 28 one of his regular
IB-Banbury machine operators, Jerry Millsaps was
absent and another one , Martin , was late . Thus, he had
to put Armstrong on the machine at the beginning of the
shift, and Akins testified he observed that the seals on
the machine were clean at the time . Akins also testified
that around 10 a.m. that day he noted that the seals on
Armstrong's machine had become excessively jammed
with layered plastic, and obviously had not been cleaned
since it was started up that morning . Akins, contrary to
Armstrong's testimony , said he had not been called by
anyone to Armstrong's machine . After noting the prob-
lem he called for the machine to be shut down and
called the maintenance man to undertake the cleanup, a
process that took more than 2 hours before the machine
could be put back in use.
Later the same day, according to Akins, he com-
plained to Willoughby about Armstrong's actions and
asked Willoughby what to do. Willoughby told Akins to
review Armstrong's personnel file and do whatever he
wanted . Akins did so, noted Armstrong's prior repri-
mands, and decided to discharge him. He began filling
out a discharge notice on a standard warning notice but
did not complete it . The discharge paper was reviewed
and rewritten by Production Manager Millsaps on the
following day and the discharge was then effectuated.
Millsaps testified that he made the decision to dis-
charge Armstrong but it was based on Akins' recommen-
dation . He explained that he rewrote Akins' document
because it was dirty and had some words misspelled.19
I have previously found herein that Armstrong was in-
credible with respect to certain 8(a)(1) allegations. His
testimony regarding the details of his discharge I like-
wise find incredible . His failure to tell the Board investi-
gator of Akins' alleged instructions to Coon regarding
discharging Armstrong constitutes a critical omission
that warrants the conclusion that such alleged instruc-
tions to the extent they involved union activity were a
pure fabrication by Armstrong . I credit Akins and Mill-
saps where their testimony contradicts Armstrong's. I
conclude that Armstrong did not keep the Banbury seals
sufficiently clean and that clear cause for disciplinary
action existed . Moreover, assuming arguendo , that Re-
spondent was aware of Armstrong's union inclinations,
Respondent 's decision to terminate Armstrong appeared
17 Armstrong admitted in his testimony that Akins "tried to stay after
me all the time."
18 Armstrong on direct examination acknowledged only one prior
warning of any type . On cross-examination he was confronted with the
additional warnings purportedly signed by him. He denied three prior
warnings and claimed the signature was not his . A comparison of Arm-
strong 's purported signature on the warnings with a document executed
by him at the time of his discharge lead me to the conclusion that the
purported signatures are authentic
19 That it was not unusual for Millsaps to make changes in documents
is demonstrated by the uncontradicted fact that he had changed one of
Armstrong 's prior warnings in November 1986
741
entirely reasonable in light of his reprimand record and
his own admission that Akins was always after him
which clearly reveals that Armstrong was a marginal
employee . Having credited the validity of Respondent's
basis for Armstrong's discharge I conclude Respondent
has demonstrated that Armstrong would have been dis-
charged even in the absence of his union activity. I
therefore find no violation of Section 8(a)(3) and (1) of
the Act in his discharge.
c. Leroy Hamby
Hamby was employed initially by Respondent on a
temporary basis as a maintenance helper in early Janu-
ary. Around March 27 Hamby's supervisor, Maintenance
Manager Larry Murphy, gave Hamby an option of be-
coming janitor or taking a layoff. Hamby chose to take
the janitor position . In this capacity he was responsible
for cleaning the lunchroom , restrooms , plant and ware-
house floors , and some supervisors ' offices. According to
Hamby's testimony , he was told the first few days on the
janitor position that he was doing a good job by various
supervisors including Murphy, Millsaps and Ingram.
Hamby further testified that he was never told that he
was not doing a good job, and was completely unaware
of any dissatisfaction with his work performance prior to
his discharge on 1 May.
Hamby signed a union authorization card for Rodgers
in the plant on April 27. He had been aware of the
advent of union activity from a conversation with Rod-
gers on April 24 when Rodgers had initially inquired of
Hamby whether he would sign a union card.
The conversations Hamby had with Millsaps and
Ingram regarding the Union have already been set out
above. On May 1, Murphy called Hamby to his office
where he told Hamby that he was going to have to let
him go because he was not doing his job. Hamby testi-
fied he asked no questions of Murphy regarding the dis-
charge, but added that he did attempt to inquire of Wil-
loughby the reasons for his "permanent layoff," but Wil-
loughby was too busy to give him a response. Respond-
ent prepared a separation notice for Hamby stating as
reason for the discharge: "Lacking in job efficiency."
That reason is also found on a reprimand form executed
by Murphy on 1 May.
Respondent 's evidence regarding the basis for Hamby's
discharge was expressed through Murphy. Murphy, who
testified that he supervised the maintenance mechanics,
helpers, and the janitor , testified Hamby was hired as a
temporary employee to assist the maintenance mechanics
in connection with some expansion work, and that while
Hamby had indicated prior experience in such work
Murphy found that his job performance was lacking. He
testified that he had talked with Hamby several times
and told him he was not performing adequately . Never-
theless, because Hamby had earlier expressed interest in
a permanent job, Murphy offered Hamby a position as a
janitor when the job became available, and Hamby ac-
cepted the position even though it involved a reduction
in his hourly rate of pay.
According to Murphy, Hamby performed well as jani-
tor for 2 to 3 weeks but then Murphy observed that he
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
began to hurriedly and inadequately do his duties and
thereafter begin annoying people on the plant floor by
standing and talking to them . Murphy testified he ad-
vised Hamby several times that he could not tolerate that
and that if Hamby ran out of things to do he should
report to Murphy. Thereafter, Hamby would briefly im-
prove. Murphy related that Willoughby also noted
Hamby's standing and talking in the plant and com-
plained to Murphy . Murphy testified that he initially de-
cided to discharge Hamby during the week prior to May
1 and monitored him closely thereafter , finally deciding
to discharge him on May 1. Murphy conceded he had
given Hamby no prior formal or written warnings but
claimed it was not his practice to do so . He claimed that
he had previously discharged an employee on November
26, 1986, for poor quality work, and had only given the
employee "verbal counseling" prior to the discharge. Fi-
nally, Murphy denied that union activity was a factor in
the discharge of Hamby.
If one accepts the testimony of Hamby he was not
warned regarding the inadequacy of his work and the
failure to warn would undermine the validity of Re-
spondent 's contention regarding the basis for his dis-
charge . I have previously found Hamby to be a credible
witness herein, and I credit him in this instance also.
Murphy impressed me as a less reliable witness with a
tendency to exaggerate . While Murphy testified that
Hamby's performance as a janitor the first 2 or 3 weeks
were good , he nevertheless at one point testified that
Hamby from the beginning day as a janitor stopped daily
and talked to Leadman Lance Coon 10 to 15 minutes at
a time . This inconsistency demonstrates a desire to over-
emphasize any inadequacy of Hamby. Moreover, to the
extent that Hamby talked to other supervisors and em-
ployees during the work day there was no evidence that
he interfered with their work. Indeed, Foreman Akins,
one of those to whom Hamby allegedly habitually
talked , denied there was any interference with his work
or that of his employees by virtue of such talking. There
was no evidence that there was any supervisor involved
in any talks with Hamby complained to Murphy about
them . Finally, there was no evidence submitted, other
than Murphy 's subjective conclusions which would sup-
port the fact of Hamby's work inadequacy. No details
were provided regarding Hamby's failure to clean any
specific area or perform any specific assigned task not-
withstanding Murphy's claim that he closely monitored
Hamby during the last week of his employment . Accord-
ingly, and in the absence of prior warning , Hamby's dis-
charge during the first week of the overt union campaign
and 4 days after he signed a union authorization card is
highly suspect.
The weakness of the General Counsel 's case in
Hamby's discharge is found in the absence of direct evi-
dence that Respondent was aware of Hamby's specific
union involvement. The Charging Party argues that such
knowledge may be inferred on the basis of a small plant
doctrine as applied by the Board in Permanent Label
Corp., 248 NLRB 118 (1980), and Coral Gables Convales-
cent Home, 234 NLRB 1198 (1978). The Board has long
held that knowledge of an employee's union activity may
be inferred from the record as a whole. See Darbar
Indian Restaurant, 288 NLRB 545 (1988); Grey's Colonial
Acres Boarding Home, 287 NLRB 877 (1987). See also
Wiese Plow Welding Co., 123 NLRB 616 (1959). I believe
such an inference is warranted here . Respondent em-
ployed less than 40 unit employees , and the plant was lo-
cated in a small community . It was aware early on of
union talk among its employees and specifically aware of
the first union meeting after the second shift on April 24.
Murphy himself was admittedly aware of the union ac-
tivity on April 27. Hamby signed his union card at the
plant on April 27 after talking to Bucky Rodgers in both
the plant's parking lot and the locker room . Rodgers was
an individual conceded by some of Respondent 's supervi-
sors including Thomas, to be the most likely union sup-
porter at the time. Murphy conceded that he closely
monitored Hamby beginning the last week of Hamby's
employment. Hamby's discharge followed within 4 days
the signing of his union card, it followed certain 8(a)(1)
conduct of Respondent already found , and the discharge
was based upon unsubstantiated reasons.
Considering all the foregoing , I conclude it may be
fairly inferred that Respondent was aware of Hamby's
union involvement . I further conclude that the timing of
his discharge coupled with Respondent 's union animus
demonstrated by violations of Section 8(a)(1) found
herein and the absence of prior warnings regarding his
alleged work deficiencies clearly establish a prima facie
case that the discharge of Hamby was a response to his
union activity and constituted a violation of Section
8(a)(3) and (1) of the Act. Since I do not credit Respond-
ent's evidence that Hamby had previously been warned
of his job performance and since I have concluded that
Hamby's work inadequacies were not credibly estab-
lished by Respondent on this record I find that Respond-
ent has failed to rebut the General Counsel 's prima facie
case . I conclude that Hamby's discharge violated Section
8(a)(3) and (1) of the Act as alleged.
d. James R. White
White signed a union authorization card at the union
meeting at the Vonore filling station on April 24.20 He
served as a union observer during the 25 June election.
Having been hired by Respondent in May 1985 White
last worked as a liquid color mixer mixing what he re-
ferred to as "hazardous chemicals " and pigments. White
testified that on several occasions he had made com-
plaints to Ingram and Willoughby about the lack of ven-
tilation in his work area, the lack of appropriate respira-
tors, and the presence of smoke and minute particles
(pearl) floating in the air resulting from the production
process. White testified that the conditions prevailing
were physically affecting him and Don Cordell, the em-
ployee with whom he worked. The last complaint White
voiced to Ingram occurred shortly after the election
when, according to White, he protested the absence of
ventilation in his area . Ingram stated Respondent was not
going to put fans in White's area.
20 While he dated the card April 23 White conceded this date was in
error.
AVECOR, INC.
The next day following White's last complaint to
Ingram , White was called to the plant conference room
where he was confronted by Ingram , Vice President
McLean, and Supervisors Murphy and Millsaps. McLean
related that the conference was regarding the incident
between White and Ingram the preceding night. White
took that as an opening to voice more complaints about
the fumes in his work area, complained that he was get-
ting sick from it, and added that if they had to carry him
out on a stretcher he would be back with a lawyer. He
further volunteered that the reason he thought they
needed a union there was "on account of health and
safety violations . " 21 Nevertheless , still according to
White, McLean, apparently referring to the exchange the
night before between Ingram and White , said he was not
going to have White talking to his supervisors that way.
White denied herein that he had used any profanity or
vulgarities in talking to Ingram other than to tell him to
"clean this damn place up ." He admitted , however, that
profanity was not uncommon in the plant.22
On 18 August, according to White, he observed Wil-
loughby talking to Murphy at the plant timeclock and
decided to complain to Willoughby that Ingram was no
longer speaking to White. White approached Wil-
loughby, voiced his complaint and, according to White,
Willoughby "blew up," told White if he did not like it he
could quit, and began yelling at White. White told Wil-
loughby he could not talk to White that way and if he
would just give White a layoff White would "go to the
house." White further related he told Willoughby that he
would go back to work, but added, "I'm not your trash."
Willoughby told him if he wanted to be fired, he was
fired and proceeded to clock White out. Willoughby
then told him to get out before he was thrown out.
It is the General Counsel's theory that White had en-
gaged in no misconduct warranting his discharge, and
that in actuality the discharge was provoked by White's
union involvement , Respondent 's knowledge of which
was clearly demonstrated by White's serving as a union
observer during the June 25 election . I concur that if
White's version is given full credence there would
appear to be no valid basis for discharge , and a prima
facie case of a violation of the Act would be established.
I am unable to accept White's unsubstantiated version,
however , and find Respondent 's evidence regarding the
basis for his discharge more credible and persuasive.
Thus, Ingram testified regarding the 5 August encoun-
ter and asserted that while he was in the production area
White approached him, got in front of his face, and
loudly cursed him, complaining about his working condi-
tions . Specifically, White said that when he hit the floor
jerking he would not "be no suck ass like Darrell
Akins,"23 that he would sue Ingram 's ass as well as that
21 White testified, without contradiction, health and safety was a big
issue in the union organization campaign
22 While White testified that nothing came of this meeting, Respondent
produced a written warning dated 6 August signed by McLean accusing
White of verbally abusing Ingram on 5 August , advising White that this
was intolerable , and warning him that it was a serious violation of work
standards.
22 The record suggests Akins was once overcome in the plant by
fumes and passed out
743
of other supervisors, that his grandmother had the
money to enable him to sue , and that his nerves were
gone and he could not sleep because of the chemicals he
worked with . Ingram testified he made no response to
White and turned and walked away in spite of the pro-
fanity that White used.
Ingram further testified that he went to Willoughby
about the matter and Willoughby told him to document
the encounter , and the next morning to have White's
final checks prepared. This was done, but the next day
when the checks were taken to McLean for signature
McLean , in light of White's threat to sue, decided to
check with counsel before effectuating the discharge.
After checking with counsel it was concluded that since
White had been the Union's observer, White should not
be discharged, only warned. Accordingly , a meeting was
held with White on 6 August attended by Ingram,
McLean , Murphy, and Millsaps . Ingram 's note prepared
after the meeting reflects that White was told that he had
to be willing and able to do the job, and if he could not
he would be of no use to Respondent . He was further
told that he could remain as a team man without vocal
outbursts but that if he could not he would be replaced.
Moreover, he was told that this would be his last warn-
ing and if the same thing happened again he would be
discharged.
Ingram 's testimony regarding the 5 August encounter
with White was corroborated by Murphy and employee
Don Cordell. His testimony regarding the disciplinary
action was corroborated by Willoughby, McLean, and
Murphy. Cordell, contrary to White's testimony, specifi-
cally confirmed White's use of profanity toward Ingram.
Cordell's testimony was very convincing. While Cordell
can not be regarded as unbiased on the union organiza-
tion issue,24 he impressed me as fully truthful and,
having worked with White, appeared sympathetic to
him. However, he testified he observed White to be ex-
citable during the encounter with Ingram and he did not
believe that White realized what he was saying . Credit-
ing Cordell, Murphy, and Ingram in this instance, and
without regard to the validity of White's complaints
about his working conditions, I find White's forceful
loud and abusive language toward Ingram provided just
cause for discipline . Although profanity or abusive lan-
guage may have been commonplace in the work area
there was no evidence that such language directed at su-
pervisors in a forceful manner had been tolerated. I con-
clude White would have been disciplined even absent his
union activities . Indeed , based on the credited evidence it
was White 's union involvement which prevented his dis-
charge in this instance . I find no violation of the Act in
the warning issued White on August 6.
Regarding the August 18 incident resulting in White's
discharge Willoughby testified that on that date he was
in the plant talking to Murphy when White approached
saying he wanted to talk to Willoughby. Willoughby told
him to wait a minute and turned to complete his remarks
with Murphy. White stated at that point that he was get-
24 Cordell had reported to Ingram on the morning of April 27 that he
had heard that there had been a union meeting the preceding Friday
night but identified no individuals attending
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ting "god damned tired of you people" adding that if
they did not want to have anything to do with him to
give him a layoff. Willoughby testified he told White
who was loud and agitated and standing within 3 feet of
him to calm down and tell him the problem . Although
White complained he was being ignored Willoughby told
him to calm down and return to his job and added that
he was not going to give White a layoff although White
could quit if he wanted to. White then turned away, but
in doing so stated that he was not going to quit, and that
he was going to stay and "fuck you son-of-a-bitches." At
that Willoughby told White the choice was no longer
White's and that he was terminated.
Willoughby's testimony in the foregoing respects was
generally supported by Murphy. Cordell, while he did
not hear the words exchanged between Willoughby and
White, testified he observed White shaking his finger at
Willoughby and heard him "hollering ." Indeed , Cordell
testified he had noted that White appeared to be "aggra-
vated," and when White told Cordell prior to the inci-
dent that he was going to talk to Willoughby Cordell
cautioned him not to "go over there and blow up."
In this instance I credit Willoughby 's testimony as di-
rectly corroborated by Murphy and largely supported by
Cordell. Having been expressly and legitimately warned
about similar conduct almost 2 weeks earlier it is clear
that White's intemperate language and insubordinate con-
duct toward superiors provided a clear basis for dis-
charge without regard to the merit of White's job com-
plaints . Further, in light of the earlier lawful and express
warning to White that a repeat of such conduct would
be followed by his discharge it is clear that Respondent
has demonstrated that White would have been dis-
charged even in the absence of his union and protected
activities. Accordingly, I find no violation of Section
8(a)(3) and (1) of the Act in White's discharge.
2. The alleged constructive discharge of
Darrell Martin
Darrell Martin was employed by Respondent from
October 1986 until May 15 when he admittedly quit his
employment . At the time of such quitting, which the
General Counsel and Charging Party argue was forced
upon him due to his union support , Martin was em-
ployed as a Banbury machine operator and had been em-
ployed in that position for several months . Martin signed
a union authorization card on April 24 at the union meet-
ing on that date . He also successfully solicited two other
employees to sign authorization cards on April 25 and
27. Coercive remarks regarding the Union attributed by
Martin to Willoughby have already been set forth above.
By virtue of Martin 's response to the questions of Wil-
loughby concerning whether Martin was for the Union it
is clear that Respondent was aware of Martin 's union
sympathies . As the 1B-Banbury machine operator it was
Martin 's function to weigh plastic "shots" and plastic
color ingredients and insert the material into the machine
which "cooked" or melted the ingredients and dropped
the material into an extruder process on the floor below.
At times the work was fast paced and hectic depending
upon the weight of the loads put into the machine and
the time necessary to "cook" the loads . Some runs re-
quired weighing material and loading the machine once
every 45 to 60 seconds , and some loads weighed approxi-
mately 50 pounds . In addition , there was considerable
dust and heat attendant to operation of the machine.25
These factors including the necessity for accurate weigh-
ing of materials by the machine operators made the job a
difficult one requiring substantial effort and attention. It
was made all the more difficult with the change in shift
operations on April 27 because only one operator per
shift was used on the machine after that date.
Martin testified that on May 15 he became ill around
noon with chest pains and nausea , but continued to oper-
ate his machine . At his 2 p.m. break he talked to Super-
visor Millsaps in the breakroom and advised him of his
illness . Millsaps told him Respondent was planning a
better ventilation system and said things would get
better . Martin complained that he could not handle the
job, but proceeded back to his job and completed his
shift . At the completion of the shift he told Millsaps and
Darrell Akins in separate conversations he could not
handle the job and would not be coming back . Still ac-
cording to Martin , Akins told him he should stay, that
things would be getting better and he should not leave.
Millsaps likewise, in Martin 's words, "tried to get me to
stay," but Martin did not return to work the next work
day.
It is well established that a constructive discharge vio-
lative of the Act occurs when an employer deliberately
makes working conditions for a union advocate unbear-
able. To establish a constructive discharge it must be
proven first that the "burdens imposed on the employee
must cause, and be intended to cause, a change in his
working conditions so difficult or unpleasant as to force
him to resign ." And secondly, "it must be shown that
those burdens were imposed because of the employee's
union activities." Crystal Princeton Refining Co., 222
NLRB 1068, 1069 (1976). See also Seville Flexpack Corp.,
288 NLRB 518 (1988).
I find the General Counsel has failed to establish either
element of a constructive discharge in Martin 's case.
While Martin may have found the working conditions
unbearable there is no evidence that the changes in oper-
ation which increased the difficulty of the job were in-
tended to cause him to quit . The changes were equally
applicable to all the 1B-Banbury operators and no others
quit . Secondly, based on the facts already found in this
case Respondent planned the changes effecting the 1B-
Banbury operation before the union campaign began and
implemented the changes prior to the time that any
knowledge by Respondent of Martin 's union activities
was shown. Accordingly, I find no constructive dis-
charge of Martin and thus, no violation of Section 8(a)(3)
and (1) of the Act in this regard.
25 Martin testified that he had to mix some dry chemical colors with
the shots and frequently inhaled the dust from such chemicals. As a result
he occasionally coughed up colored phlegm and would experience chest
pains and nausea While he testified he had gotten sick on the job twice
before 15 May he never told anyone about it
AVECOR, INC.
III. THE OBJECTIONS TO THE ELECTION
The Union filed 22 numbered objections to the elec-
tion, but subsequently withdrew objections numbered 1,
2, 4-8, 15, 16, and 18-20. The remaining numbered ob-
jections will be individually addressed below.
Objection 3
This objection refers to the discharge of Leroy
Hamby . Hamby's discharge was found above to consti-
tute an unfair labor practice within the meaning of Sec-
tion 8(a)(3) and ( 1) of the Act. Hamby 's discharge oc-
curred within the critical period between the filing of the
petition and the holding of the election . Generally, con-
duct which violates Section 8(a)(1) of the Act is, a for-
tiori, conduct which interferes with the election . Dal-Tex
Optical Co., 137 NLRB 1782, 1786-1787 ( 1962). I find
this objection has merit.
Objection 9
This objection complains that Respondent 's manager
told employees in a meeting that prounion employees
would make less money than antiunion employees. The
complaint herein , as amended, made no such allegation
or one similar to it . No independent evidence was of-
fered by the Union to substantiate the allegation. Ac-
cordingly , I find this objection to be without merit.
Objection 10
Objection 10 asserts that Respondent created an atmos-
phere where union supporters felt they were under sur-
veillance by plant manager , supervisors, and "nonbar-
gaining [unit] employees." It appears to be related to the
allegations of paragraph 18 of the complaint which al-
leged surveillance of union activities by Respondent.
This complaint paragraph was dismissed at the hearing
upon motion by Respondent in the absence of evidence
to support the allegation . No separate allegation was
made in the complaint attributing to Respondent the cre-
ation of an impression among employees of the surveil-
lance of their union activities . Furthermore , no independ-
ent evidence was adduced by the Union or cited in its
brief to support this objection . Accordingly, the objec-
tion is found to be without merit.
Objection 11
In Objection 11 the Union contends Respondent's su-
pervisors increased the work load of union supporters.
This objection appears to have its foundation in the con-
structive discharge allegations relating to Darrell Martin.
It is clear as found above , that Martin was not dis-
charged , and instead quit . Moreover , while the record
shows that Respondent did change to a 10-hour shift on
April 27 and did cease relief rotations on the lB-Band-
bury machine on that date making the job more difficult,
I have previously found that the change was decided
upon and announced prior to the advent of the union ac-
tivity . It cannot be said that these changes therefore
were responsive to the union activity . In addition there
was no evidence that any increased burdens on employ-
ees as a result of these changes were disparately or dis-
745
proportionally imposed upon union supporters . Finally,
the elimination of the relief operators for the Banbury
machines took place prior to the filing of the petition and
thus outside the critical objections period . Parkview Acres
Convalescent Center, 255 NLRB 1164 , 1189 (1981). I
therefore find no merit to this objection.
Objection 12
In this objection the Union claimed that the plant man-
ager told employees in a meeting that wages would be
cut back to minimum wage if the Union was voted in.
The objection appears to be coextensive with the allega-
tions of the complaint regarding a threatened loss of ben-
efits and is predicated upon the same testimony cited
above attributing to Willoughby the threat at the em-
ployee meeting on May 14 that if the Union came in em-
ployees would be cut to minimum wage . Having found
above that Willoughby made no such remark it is con-
cluded that there is no merit to this objection.
Objection 13
In this objection the Union contends that Willoughby
and other supervisors told employees that Respondent
knew who signed union authorization cards. No evi-
dence was adduced on the point, and I find the objection
to be without merit.
Objection 14
According to this objection Willoughby told employ-
ees that union supporters would be terminated . While no
evidence of a specific threat of discharge by Willoughby
was alleged in the complaint the complaint did allege
that Supervisor Ingram had made such a threat . While I
have found above that Ingram indeed made threatening
remarks to Hamby it appears they occurred prior to
April 30 when the petition was filed , and accordingly
took place outside the critical objections period . I there-
fore find no merit to this objection.
Objection 17
In this objection the Union contends that employees
were called to supervisors ' offices to discuss the Union.
There was no independent evidence to support this con-
tention cited in the Union 's brief and a canvass of the
record reflects no supporting evidence . I find the objec-
tion to be without merit.
Objection 21
The allegations of Objection 21 are coextensive with
the allegations of paragraphs 23 and 24 of the complaint
which complain that Respondent granted its bargaining
unit employees a wage increase on May 14 to cause the
employees to reject union representation . No merit was
found above to this complaint allegation. Accordingly,
no merit is found in Objection 21.
Objection 22
The last union objection asserts that Respondent on
May 15 installed ventilating fans in order to discourage
employees to vote for the Union . No evidence in support
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of this objection was adduced. On the other hand the
record reflects some testimony by employees regarding
the absence of adequate ventilating fans . Accordingly, no
merit is found in this objection.
Notwithstanding the failure to find merit to most of
the Union's specific objections, I have found that Re-
spondent engaged in other conduct violative of Section
8(a)(1) within the critical period . Such conduct even in
the absence of a specific objection thereon is sufficient to
warrant the setting aside of the election . Dal-Tex Optical,
supra.
IV. THE APPROPRIATENESS OF A BARGAINING ORDER
A. The Appropriate Bargaining Unit and Disputed
Inclusions
In a Stipulation for Certification Upon Consent Elec-
tion executed by Respondent and the Union the appro-
priate collective-bargaining unit was described as fol-
lows:
All production and maintenance employees em-
ployed by the Employer at its Vonore, Tennessee
facility, including leadmen , laboratory employees,
dry color employees , shipping and receiving em-
ployees, liquid employees and quality control em-
ployees, but excluding all office clerical employees,
guards and supervisors as defined in the Act.
At the hearing herein the parties stipulated again, and I
conclude, that the above-described unit is one appropri-
ate for collective bargaining. However, the parties dis-
agreed with respect to the inclusion in the unit of two
employees , Diane Byrum and Lisa McWaters, with Re-
spondent arguing they are plant clerical employees and
with the Union arguing that they are office clericals not
includable in the unit.
The evidence reflects that McWaters , having been ini-
tially hired as a receptionist, was employed at all materi-
al times as an order entry clerk . In this position she re-
ceived telephonic product orders from customers and
prepared the paperwork for such orders utilizing normal
office equipment and a digital computer . She also gener-
ated shipping paperwork for orders and supplied order
information to the production manager and shipping in-
formation to the shipping department . McWaters' pri-
mary work location was in the main office where office
clerical employees are located . She worked in an area
adjacent to the office of Willoughby who directly super-
vised her. While McWaters was paid by the hour, she
did not punch a timeclock . She enjoyed the same fringe
benefit package granted all Respondent 's employees and
had access to a production employees break room al-
though she also had access to an office clerical coffee fa-
cility. She worked a normal 8-hour day, 40-hour week as
do the office clericals, and was not affected by the
change to a 10-hour shift on April 27 which effected
most of the unit employees . Her contact with unit em-
ployees was limited to incidental contact while taking
paperwork into the production area about four or five
times a day.
Byrum occupied at all relevant times the position of
lab secretary located in a lab manager's office adjacent to
the lab as well as to the main office area . Byrum worked
under the supervision of the lab manager producing pa-
perwork for the lab as well as plant production reports.
She prepared paperwork associated with shipping of lab
samples and liquid department requisitions She spent an
estimated 25 percent of her worktime out of her primary
work location and allegedly in direct contact with lab or
production employees . In performing her primary func-
tions she utilized a computer terminal and regular office
equipment. On at least one occasion she was used by lab
manager Pollard to type a memo to McLean describing
the unsatisfactory conduct of Tidwell on April 24. Like
McWaters , Byrum was hourly paid , received the fringe
benefits universal to unit and nonunit employees, and
worked the same hours as office clericals.
The plant clerical -office clerical distinction is rooted in
community of interests concepts . Minneapolis-Moline Co.,
85 NLRB 597, 598 (1949). Here, contrary to Respond-
ent's position , I conclude that McWaters and Byrum's
work interests were more closely associated with that of
office clericals than unit employees by virtue not only of
their work location but also their job duties and working
conditions. Neither performed production work of any
type even on a sporadic or part-time basis . They worked
different hours from most of the production employees.
That Respondent itself viewed then as being more close-
ly associated with clerical employees in interests was
demonstrated by its failure to grant them the 40-cent-per-
hour increase granted the unit employees in May. The
lab manager's use of Byrum to type a personnel memo
reflects the same point . While the paperwork generated
by Byrum and McWaters related to production work
their direct contact with unit employees does not appear
to be extensive or significantly greater than their contact
with office clericals. Accordingly, I conclude that
Byrum and McWaters do not have a sufficient communi-
ty of interests with production unit employees to warrant
their inclusion in the unit.
B. The Union's Majority Status
Excluding Byrum and McWaters and including Tid-
well who was found herein to have been unlawfully dis-
charged it appears that on April 30 there were 33 em-
ployees in the appropriate unit . Twenty-one union au-
thorization cards executed by unit employees were iden-
tified and received in evidence . Excluding the card
signed by Armstrong who was lawfully discharged, and
the card of Coley who I find below effectively withdrew
his card on April 28, 17 of these cards were signed on or
before April 27.26 The cards with the caption "Authori-
26 These cards are those purportedly signed by Robby Belcher, James
Browder, Marshall Coley , Ricky Calvin , Richard Flake , Leroy Hamby,
Carl Jones, Ed Hurst , Stephen Lenoir , Timothy Lenoir, Darrell Martin,
Jimmy Millsaps, James Rodgers, Calvin Suttles , Jeff Tidwell , Rickey
White, Glen Goforth, and Vic Murphy. Two additional cards those of
Steve Smith and Troy Medlin were signed on May 5. Respondent's bnef
suggests there was an additional unit employee not appearing on the stip-
ulated list of employees shown on the payroll of May 5. This suggestion
is based upon Willoughby 's testimony of an employee named Dwight
Continued
AVECOR, INC.
zation and Application for Membership" not only consti-
tuted an application for membership , but also designated
the Union as the exclusive bargaining representative of
the signer . Further, the cards specifically authorized the
Union "to request recognition from my employer as my
bargaining agent and/or to petition the National Labor
Relations Board for an election for certification of said
Union as my bargaining representative ." I find the cards
are clear and unambiguous . Where appropriately execut-
ed in the absence of improper inducements I find the
cards are valid designations of the Union as collective-
bargaining representative.
Respondent attacks the validity of the card signed by
Browder which bears the date "27 June 87," a date obvi-
ously in error, since the card also bears the date stamp
"87 Apr 30" of the Board 's Region 10 office . Respondent
contends that since Browder was not called to testify re-
garding the date the authenticity of the card is doubtful.
Browder's card was identified by Martin who solicited
the card from Browder and who testified that it was
signed on April 27. I credit Martin who is supported by
the Region 's date stamp on the back . It is well estab-
lished that a union card may be effectively identified by
witnesses other than the card signer . McEwen Mfg. Co.,
172 NLRB 990 (1968). I find Browder's card was a valid
designation of the Union as of April 27.
Respondent argues that the card of Marshall "Mac"
Coley was invalid for majority purposes because he ef-
fectively withdrew the authorization on April 28, by
seeking on April 28 the return of his card , executed on
April 24, from Rodgers who had solicited the card. Rod-
gers testified for Respondent that Coley had in fact
asked for his card back and Rodgers had communicated
the request to Union Representative James Hendrix who
told him that the card had likely already been forwarded
to the Board with the petition . Hendrix gave Rodgers
the address of the Board's regional office . Rodgers ad-
mittedly did nothing further . Hendrix testified only that
Rodgers reported to him that Coley was "shakey," and
did not request return of the card. Whether or not Rod-
gers communicated the Coley request for revocation of
his card to Hendrix Respondent , citing Production Plating
Co., 233 NLRB 116 fn. 4 (1977), enfd. 614 F.2d 1117 (6th
Cir. 1980), and TMT Trailer Ferry, Inc., 152 NLRB 1495,
1496 (1965), contends Coley took sufficient reasonable
action to revoke the card.27 The General Counsel
counters citing Photo Drive Up, 267 NLRB 329, 362
(1983), as standing for the principle that revocation to be
effective must be communicated by the card signer to
the Union, and the General Counsel implies that only
direct contact with the Union by the card signer can
validate a revocation . Contrary to the General Counsel,
and regardless of whether Rodgers communicated
Bevins being shifted into the unit on April 27 Willoughby's testimony
appeared uncertain on this point, however, and Bevens' inclusion in the
unit is inconsistent with the stipulated list of unit employees, which list,
with certain exceptions, became the Excelsior list for the election Under
these circumstances, as well as Respondent's failure to explain why
Biven's name did not appear of the stipulated list of unit employees I find
the record insufficient to establish that Bevens may properly be included
in the unit
27 Coley sometime after May 8 also executed one of Respondent's
form withdrawal letters and forwarded it to the Union
747
Coley's request to Hendrix , I find based on Rodgers tes-
timony, uncontradicted in this regard and therefore cred-
ited, that Coley had taken sufficient reasonable steps to
revoke his card . Production Plating Co., supra. I find
Coley's revocation effective in the absence of clear evi-
dence that Respondent engaged in any unfair labor prac-
tices affecting Coley or of which he would likely have
known between Coley's signing of the card on the
evening of April 24 and the time he asked Rodgers to
withdraw his card on April 28, the date established in
the testimony of Rodgers and Hendrix . While Farrell
had communicated an offer to Coley of $50 to withdraw
his card it is not clear that this occurred before April 28.
Respondent attacked the validity of the card signed by
Carl Jones on the basis of Jones ' testimony that Rodgers
told him the purpose of the card was to "try to get a
vote in a Union." To invalidate a card , however, it must
be shown that contrary to the express wording of the
card a representation was made that it would be used
only for a different and more limited purpose. Photo
Drive Up, supra at 364 . A reference to the use of the card
in obtaining an election does not, however, invalidate the
card unless such usage is represented as the sole or only
purpose . Cumberland Shoe Corp., 144 NLRB 1268 (1963),
enfd. 351 F.2d 917 (6th Cir. 1963). The representation
made to Jones, I conclude , did not amount to such a rep-
resentation and I find no question regarding the represen-
tations made to Jones which would invalidate the card.
I reach the same result with respect to cards signed by
James Browder and Calvin Suttles . Those cards were so-
licited by Darrell Martin who freely testified that he told
Browder and Suttles that the Union had to have 51 per-
cent of the employees to sign cards to have an election.
However , Martin 's testimony does not establish that he
represented that an election was the sole or only purpose
of the cards . There is thus no question effecting the va-
lidity of the card which would negate its use for majori-
ty purposes . Well-Bred Loaf Inc., 280 NLRB 306 (1986).
Respondent also attacks the validity of the card of
Clark Goforth for majority purposes on the basis of his
revocation of the card . Goforth signed one of the form
letters distributed by Respondent and forwarded it to the
Union . The date he did so was not clear , but it obviously
was after May 8 when Respondent distributed the form
letters . This was well after the record establishes that
Respondent embarked upon its unfair labor practice cam-
paign and after the two discharges found herein to be
unlawful occurred. I therefore conclude Goforth's revo-
cation was ineffective.
The card of Timothy Lenior was identified by union
representive Hendrix who related that he received the
card from Lenior at the union meeting on April 24. Re-
spondent argues that the signature on the card purport-
ing to be the signature of Lenoir is different from the W-
4 form signed for Respondent by Lenoir and received in
evidence herein . Respondent further argues that based on
similarity in writing it must have been filled out by the
same person who signed the card of Stephen Lenoir. It is
well established that a comparison of signatures with a
known specimen of an individual 's handwriting is an ap-
propriate method of identification, and that a trier of
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fact, even if not a handwriting expert, may make com-
parisons of signatures and reach conclusions thereon.
Local 707, Motor Freight Drivers (Claremont Polychemical
Corp.), 196 NLRB 613, 625 (1972). While the address
and employment information portions of the cards of
Stephen and Timothy Lenoir appear to have been com-
pleted by the same person, the purported signature on
Timothy Lenoir's card is sufficiently similar to that on
his W-4 form to preclude me from concluding that they
are not the same . Moreover , even if the card was execut-
ed by someone other than Timothy Lenoir, Hendrix's
testimony remains uncontradicted that Timothy Lenoir
handed him the card. By this delivery of the card to
Hendrix, Lenoir adopted the authorization stated in the
card even if the signature appearing thereon was not his
own. Finally, it is clear that through the identification of
the card by Hendrix and the circumstances surrounding
the signing of the card , the General Counsel established
prima facie that Lenoir's card was valid. The burden
thereafter shifted to Respondent to disprove its validity
and establish that Lenoir's signature on the card was not
genuine . Olympic Villas, 241 NLRB 358, 366 (1979). Re-
spondent did not call Lenoir to do this and failed to ex-
plain his unavailability for this purpose . Considering the
foregoing, I find the card of Timothy Lenoir to be a
valid one in establishing the Union 's majority status.
Lastly Respondent contends the card of Troy Medlin
executed on May 5 should be declared invalid because of
representations regarding the purpose of the card made
to him by Rodgers who solicited the card . Medlin testi-
fied variously that Rodgers told him that signing the
card was (1) "basically, to try to get the Company to
recognize them [the Union] as to have an election;" and
(2) "that it was just basically to try to get an election."
On the other hand, he answered negatively when ques-
tioned by Respondent's counsel whether Rodgers told
him that by signing the card it would result in an elec-
tion and was apparently confused by a question regard-
ing whether he was told the only purpose of the card
was to obtain an election. Citing Well-Bred Loaf, Inc.,
supra at fn. 7, where the Board suggested that a repre-
sentation by a solicitor that a card was "just to [have a]
vote" coupled with an unresolved conflict between wit-
nesses regarding what representations were made raised
sufficient questions regarding the validity of the card to
discount the card for majority purposes , Respondent
argues the same situation prevails here . In the case sub
judice I do not view Medlin 's testimony as a precise
report of Rodger's words during the solicition as op-
posed to Medlin's personal conclusions regarding what
Rodger 's told him . Initially in reaching this conclusion I
do not find Medlin 's use of the word "just" as one used
by Rodgers . Secondly, and in any event , Medlins' use of
the word "just" with "basically," even if these words are
a precise report of what Rodgers said , clearly reveals
"just" was not limiting the use of the card to a sole pur-
pose, but rather pointing out a basic purpose of the card.
There was therefore no misrepresentation affecting the
validity of the card for majority purposes.
Based on the above I find that on April 27 the unit
consisted of 34 employees and the Union had valid au-
thorization cards from 19 employees, a clear majority.
By April 29 Armstrong had been lawfully discharged
and Coley had effectively withdrawn his card leaving
the Union still with a majority of 17 out of 33 unit em-
ployees . On May 5 Respondent hired two new employ-
ees Cozart and Benton into the unit, but by then the
Union had obtained the authorization cards of Steve
Smith and Troy Medlin and retained a majority status, at
that point having 19 cards (including those of Tidwell
and Hamby who I have found were unlawfully dis-
charged) out of a unit of 35 employees. I find therefore
that at all relevant times the Union represented a majori-
ty of Respondent 's unit employees.
C. Application of Gissel Standards
John Williams, a district director of the Union, testi-
fied he sent the following mailgram to Respondent in the
afternoon of April 28.
This is to inform you that the Oil Chemical and
Atomic Workers International Union now repre-
sents the majority of the employees at the Avecor
Incorporated Vonore, Tennessee facility. As you
know, these employees exercised their rights as set
forth under the NLRB Act. We expect you and
your agent to abide by these applicable laws or face
civil and possible criminal charges being filed.
Respondent through Willoughby, to whom the mail-
gram was specifically addressed , and Klarich disputed
having ever received the mailgram . No evidence was of-
fered by the General Counsel to establish Respondent's
receipt of the mailgram . While a letter deposited in the
mail under appropriate circumstances might be presumed
to have been delivered I find it unnecessary to make a
similar presumption here for I find that the mailgram in
any event did not by its own language constitute a valid
request for recognition or bargaining . Even the Union's
filing of the petition on April 30 did not amount to, and
can not be regarded as, a request for recognition. Produc-
tion Plating Co., supra . However, the absence of a re-
quest for recognition and bargaining does not preclude
the entry of a bargaining order in the case, if one is oth-
erwise warranted to remedy Respondent's unfair labor
practices which preclude the likelihood of free employee
choice in a secret-ballot election . See NLRB v. Gissel
Packing Co., Inc., 395 U.S. 575, 612 (1969); J. & G. Wall
Baking Co., 272 NLRB 1008 (1984); Ohio New & Rebuilt
Parts, Inc., 267 NLRB 420 (1983). The General Counsel
and Charging Party argue that a remedial bargaining
order is warranted here . Respondent as could be expect-
ed takes a contrary position.
In Gissel supra, the Supreme Court set forth the fol-
lowing categories to be used in determininng whether to
impose bargaining orders to remedy unfair labor prac-
tices : ( 1) a bargaining order may be granted where an
employer's unfair labor practices are "outrageous" and
"pervasive"; (2) a bargaining order may me granted in
less extraordinary cases marked by less pervasive unfair
labor practices which nonetheless have a tendency to un-
dermine majority strength ; and (3) a bargaining order is
not appropriate in cases involving minor or less extensive
unfair labor practices "which , because of their minimal
AVECOR, INC.
impact on the election machinery, will not sustain a bar-
gaining order." In weighing the pervasiveness of viola-
tions of the Act the Board has held that relevent consid-
erations include "the number of employees directly af-
fected by the violation, the size of the unit, the extent of
dissemination among the work force, and the identity of
the perpetrator of the unfair labor practice." Michigan
Expediting Services, Inc., 282 NLRB 210 (1986).
Particularly pervasive unfair labor practices which are
deemed highly coercive and are likely to have a longer
lasting and inhibitive effect on a substantial percentage of
the work force are frequently referred to as "hallmark"
violations. Examples of hallmark violations are threats of
plant closure, threats of discharge, and the actual dis-
criminatory discharge of employees. However, even the
finding of "hallmark" violations does not automatically
dictate the appropriateness of a bargaining order. In the
final analysis, as the Board stated in Sangamo Western,
Inc., 273 NLRB 256, 257 (1984), the issue of whether a
Gissel bargaining order is appropriate "must be answered
in light of the facts of each case and with due regard for
the principle that generally a secret-ballot Board con-
ducted election is a preferred method of ascertaining em-
ployee choice."
Applying the foregoing principles to the case sub
judice I am compelled to the conclusion that Respond-
ent's unfair labor practices found herein fall within the
second Gissel category thus making a bargaining order
appropriate. In reaching this conclusion I note initially
that the bargaining unit was a small one consisting of
only 34 employees. 28 In a unit of this size Respondent's
unfair labor practices are likely to have a more substan-
tial impact, particularly considering that most of the unit
employees were directly affected by the unfair labor
practices. First in this regard, as I have found, two em-
ployees were discriminatorily discharged. That amounts
to an unlawful discharge of roughly 6 percent of the
unit, and therefore likely to have a substantial and lasting
impact on employee free choice. The Board has said that
"unlawful discharge or layoff is one of the most flagrant
and severe acts an employer can take to dissuade em-
ployees from selecting a bargaining representative."
Groves Truck & Trailer, 281 NLRB 1194 (1986). Indeed,
the fact that the discharges here during the union cam-
paign were of great concern to employees was demon-
strated by Hurst's expression of concern to Willoughby
over his own possible discharge or layoff for union activ-
ity. Similarly, based upon Supervisor Farrell's testimony,
it is clear the employees were concerned about Tidwell's
discharge for one employee raised a question at an em-
ployees' meeting with management, the one on May 14,
whether Tidwell's discharge had anything to do with the
Union. Willoughby in his testimony acknowledged that
the question was raised, and he assertedly denied any re-
28 Respondent asserts that at the time the hearing herein closed the
bargaining unit had changed significantly as a result of growth and turn-
over . The Board, as distinguished from the position of some of its mem-
bers, has not included turnover as a factor in determining the appropri-
ateness of bargaining order remedy. See Impact Industries. Inc, 285
NLRB 5 ( 1987), enf denied 847 F.2d 379 (7th Or 1988), Long-Airdox
Co., 277 NLRB 1157 (1985). Cf concurring opinion of Member Dennis in
Regency Manor Nursing Home, 275 NLRB 1261, 1262 (1985).
749
lationship between Tidwell's discharge and union activi-
ty. Farrell in his testimony did not attribute a specific
denial to Willoughby, only a recitation of his view of the
circumstances of Tidwell's discharge . Whether or not
there was a specific denial by Willoughby of an unlawful
discharge I am persuaded that his recitation of his ver-
sion of the circumstances of the discharge did little to as-
suage concern of employees that the discharge was in
fact related to union activities . It was clear that employ-
ees viewed Tidwell as a union leader and the likely
target for discrimination . Even Willoughby conceded
that subsequent to Tidwell's discharge unit employee
Clarence Jackson had told Willoughby that in firing Tid-
well he had gotten one of the main union instigators.
Moreover, the discharge of Hamby, a union card signer,
only a few days after Tidwell had the likely effect of in-
creasing employee concerns about the risks involved in
union activity.
Beyond the unlawful discharges , Respondent commit-
ted several violations of Section 8(a)(1) of the Act. At
least one of them falling into the "hallmark" category.
Thus, there was Ingram 's threat to Hamby that the
Union would cause Respondent to close its doors. And
there were only slightly less serious violations consisting
of the threats of more strict rule enforcement with the
Union and the promise of more wages without a union.
These violations occurred at the May 14 meeting attend-
ed by all the unit employees assuring dissemination to,
and impact upon , the entire unit . And Respondent con-
tinued its unlawful conduct until 2 to 3 days prior to the
election when, as it was previously found, Willoughby
told employees that with a Union they could not get the
favors that they had enjoyed in the past.
Lastly it must be noted that the violations were com-
mitted , not primarily by low level supervisors, but by the
higher management officials, Klarich and Willoughby.
The coerciveness of their unlawful remarks is increased
by the likely preception among employees that by virtue
of their high positions they have the authority and ability
to implement or execute their unlawful threats and prom-
ises . See Long-Airdox, supra at 1160.
Respondent in its brief argues, that no bargaining
order is warranted here because , in effect, it has not been
demonstrated by an unfair labor practice history that Re-
spondent has a proclivity to violate the Act. In support
of this argument Respondent points to the fact that
during the Steelworkers ' campaign the preceding year
which culminated in an election in which the union re-
ceived no votes, no unfair labor practices were attributed
to Respondent . Although the absence of an unfair labor
practice history precludes any finding of a proclivity to
violate the Act, it does not preclude the finding here
reached that Respondent in fact violated the Act and
that such violations are sufficiently pervasive to preclude
the implementation of traditional remedies.
Respondent also argues that the Union's proceeding to
the election on June 25 with its awareness of Respond-
ent's unfair labor practices demonstrated the Union's
belief that a free and fair election could be held, and this
supports Respondent's arguments that only a rerun elec-
tion is the appropriate remedy here. I find no merit in
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this argument . Long ago the Board stated in Bernel
Foam Products Co., 146 NLRB 1277, 1280 (1964):
The fact that in an election a vote favorable to the
Union may obviate for it a necessity for pursuing
the unfair labor practice route does not, in our
view , warrant requiring the Union to forfeit the
right to request that the effect upon it of the em-
ployer's unlawful conduct be rectified when it de-
velops that such conduct has been sufficiently oner-
ous to interfere with the election and to cause a
substantial deterioration in the union 's status.
Since the Union under Bernel Foam retains the right to
proceed along the unfair labor practice route, its decision
to proceed to the election and the quicker resolution of
the representation issue it normally affords, notwith-
standing the Respondent 's unfair labor practices , demon-
strates not a "belief" but only a hope that a fair election
could be held. That this hope was dashed demonstrates
only the effectiveness of the Respondent 's unlawful con-
duct.
Considering the total circumstances of this case and all
those factors noted above regarding the small size of the
unit , the unlawful discharge of two employees , the likely
impact of all the unlawful conduct on unit employees,
and the fact that much of the unlawful conduct was
committed by high Respondent officials, I find that it is
improbable that the use of traditional remedies here
would be sufficient to ensure a fair rerun election. I fur-
ther find that the employees uncoerced choice of repre-
sentative previously expressed by union cards , on bal-
ance, would be better protected by the issuance of a
Gissel remedial bargaining order . Since the Union first
obtained majority status through cards on April 2729 and
the Respondent having embarked upon its unfair labor
practices on April 27 and shortly prior thereto, the rec-
ommended bargaining Order herein will be made effec-
tive April 27. See Grey's Colonial Acres Boarding Home,
supra; Peaker Run Coal Co., 228 NLRB 93 (1977); Trad-
ing Port, Inc., 219 NLRB 298 (1975).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section II,
above, occuring in connection with the operations of Re-
spondent described in section I, above, had a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to result in
labor disputes burdening and obstructing commerce and
to the free flow thereof.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
29 On this date the Union had 19 executed cards including those of
Tidwell and Armstrong, in a unit of 34 employees
(a) Implying to employees that it would consider
granting wage increases to induce them to forego their
union support.
(b) Threatening its employees that it would close its
doors if they selected the Union to represent them.
(c) Interrogating employees concerning their union
membership activities and desires.
(d) Threatening its employees with more strict rule en-
forcement and the refusal to grant future favors if they
selected the Union to represent them.
(e) Promising its employees more raises and benefits if
they did not select the Union to represent them.
(f) Offering employees money or other benefits to
induce them to seek the return of their union authoriza-
tion cards.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Jeffery Tidwell and Leroy Hamby
because of their support of the Union.
5. The following unit is appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by Respondent at its Vonore, Tennessee fa-
cility , including leadmen , laboratory employees, dry
color employees , shipping and receiving employees
and quality control employees , but excluding all
office clerical employees , guards and supervisors as
defined in the Act.
6. The Union's Objection 3 to the election in Case 10-
RC-13492 has merit and must be sustained and when
coupled with Respondent 's other unlawful conduct oc-
curring in the critical period require that the election
held June 25, 1987, be set aside.
7. On April 27, 1987, the Union obtained signed union
authorization cards from a majority of Respondent's em-
ployees in the bargaining unit described above in para-
graph 5.
8.. Since on or about April 27, 1987, when Respondent
commenced engaging in unfair labor practices the Union
has been the exclusive representative of Respondent's
employees in the unit described above in paragraph 5 for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
9. By virtue of its unfair labor practices set forth in
paragraphs 3 and 4 above Respondent has attempted to
undermine the Union's majority status and has precluded
the holding of a fair rerun election thereby making a bar-
gaining order an appropriate remedy herein.
10. The unfair labor practices set forth in paragraphs 3
and 4 above constitute unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of
the Act.
11. Respondent did not engage in unfair labor prac-
tices in any other manner alleged in the complaint and
not specifically found herein.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it be re-
quired to cease and desist therefrom and take certain af-
AVECOR, INC.
firmative actions designed to effectuate the policies of
the Act.
Having found that Respondent unlawfully discharged
employees Jeffery Tidwell and Leroy Hamby, the rec-
ommended Order will - require that these two employees
be offered immediate and full reinstatement to their
former postions , or if those positions no longer exist, to
substantially equivalent positions without prejudice to
their seniority or other rights and privileges . In addition
the recommended Order will require that these two em-
ployees be made whole for any loss of earnings they may
have suffered by virtue of the unlawful discrimination
against them , by payment to them of a sum equal to that
which they would have earned absent the discrimination,
with backpay computed as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 ( 1987).30 I shall also recom-
mend , consistent with the Board 's holding in Sterling
Sugars, Inc., 261 NLRB 472 (1982), that Respondent be
required to expunge from its records any reference to the
discharges of Tidwell and Hamby and notify them in
writing that this has been done and that evidence of their
unlawful discharges will not be used in future personnel
actions against them.
Finally, it follows from the recommended issuance of a
bargaining order that Respondent's violations of the Act
are sufficiently egregious to warrant the entry of a broad
cease-and-desist order. See Hickmott Foods, Inc., 242
NLRB 1357 (1979).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed31
ORDER
The Respondent, Avecor, Inc., Vonore, Tennessee, its
officers, agents , successors , and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against its
employees because they join, support, or assist Oil,
Chemical, and Atomic Workers International Union in
order to discourage the membership in, support , or assist-
ance of the Union by its other employees.
(b) Implying to employees that it would consider
granting them wage increases to induce them to forego
their union activity.
(c) Threatening employees that it will close its doors if
they select the Union to represent them.
(d) Interrogating its employees concerning their union
membership , activities, and desires.
(e) Threatening its employees with more strict rule en-
forcement and the refusal to grant future favors if they
select the Union to represent them.
30 Under New Horizons, interest is computed at the "short -term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26USC § 6621.
si 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 objections to them shall be deemed waived for all pur-
poses.
751
(f) Promising its employees more raises and benefits if
they do not select the Union to represent them.
(g) Offering employees money or other benefits to
induce them to seek the return of their union authoriza-
tion cards.
(h) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Re-
lations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Union, bargain collectively with
it as the exclusive collective-bargaining representative of
Respondent 's employees in the following unit appropri-
ate for bargaining with respect to rates of pay, wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody such under-
standing in a signed agreement:
All production and maintenance employees em-
ployed by Respondent at its Vonore, Tennessee fa-
cility, including leadmen , laboratory employees, dry
color employees, shipping and receiving employees
and quality control employees , but excluding all
office clerical employees , guards and supervisors as
defined in the Act.
(b) Offer Jeffery Tidwell and Leroy Hamby full and
immediate reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed and make them whole in
the manner set forth in the remedy section of this deci-
sion for any loss of earnings they may have suffered by
the reason of the discrimination against them.
(c) Expunge from its files any references to the dis-
charges of Jeffery Tidwell and Leroy Hamby and notify
them in writing that this has been done and that evi-
dence of these unlawful discharges will not be used as a
basis for future personnel actions against them.
(d) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its Vonore, Tennessee place of business
copies of the attached notice marked "Appendix."32
Copies of the notice on forms provided by the Regional
Director for Region 10, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
32 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 Nation-
al 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 "
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the allegations of the
complaint not specifically found herein be dismissed.
IT IS FURTHER ORDERED that the Union 's Objection 3
to the election in Case 10-RC-13492 and the other ob-
jectionable conduct of Respondent found herein be sus-
tained , that the Union's Objections 9-13, 17, 21, 22, be
dismissed , that the results of the election in Case 10-RC-
13492 on June 25, 1987 , be set aside , that case 10-RC-
13492 be severed from Cases 10-CA-22645 and 10-CA-
22886 , and that the petition in Case 10-RC-13492 be dis-
missed.
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
have violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT imply to our employees that we will
consider granting them a wage increase to induce them
to forego their union activity on behalf of Oil, Chemical
and Atomic Workers International Union.
WE WILL NOT threaten employees that we will close
our doors if they select the Union to represent them.
WE WILL NOT interrogate our employees concerning
their union membership , activities , and desires.
WE WILL NOT threaten our employees with more strict
enforcement of rules and the refusal to grant future
favors if they select the Union to represent them.
WE WILL NOT promise our employees more raises and
benefits if they do not select the Union to represent
them.
WE WILL NOT offer employees money or other bene-
fits to secure the return of their union authorization
cards.
WE WILL NOT discharge or otherwise discriminate
against employees because of their union activities and
sympathies.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer Jeffery Tidwell and Leroy Hamby im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other
rights and privileges previously enjoyed and WE WILL
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them.
WE WILL expunge from our files any reference to the
discharges of Jeffery Tidwell and Leroy Hamby and
notify them in writing that this has been done and that
evidence of their unlawful discharges will not be used as
basis for future personnel actions against them.
WE WILL upon request of Oil, Chemical and Atomic
Workers International Union bargain collectively with it
as exclusive collective-bargaining representative of our
employees in the following unit found appropriate for
bargaining with respect to rates of pay, wages , hours,
and other terms and conditions of employment and, if an
understanding is reached , embody such understanding in
a signed agreement:
All production and maintenance employees em-
ployed by Respondent at its Vonore, Tennessee fa-
cility , including leadmen , laboratory employees, dry
color employees , shipping and receiving employees
and quality control employees , but excluding all
office clerical employees, guards and supervisors as
defined in the Act.
AVECOR, INC.