Badische Corp.

National Labor Relations Board - Board Decisions

Mar 9, 1981

254 N.L.R.B. 1195 (N.L.R.B. 1981)

BADISCHE 1
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1 WILL impliedly satis-
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ings,'
H u r r o ~ S. BRANDON,
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officers,
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F.2d
basis
ORDER
September
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CORPORATION 1195
Badische Corporation Amalgamated Clothing
and Textile Workers Union, AFL-CIO, CLC.
Case 18
March 9, 198
DECISION AND ORDER
On October 15, 1980, Administrative Law Judge
S. Brandon issued the attached Decision in
this proceeding. Thereafter, the Respondent, the
General Counsel, and the Charging Party filed
ceptions and supporting briefs and the Respondent
filed an answering brief.
The Board has considered the record and the
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Badische Cor-
poration, Anderson, South Carolina, its
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
The Respondent and the General Counxl have excepted to certain
credibility findings made by the Administrative Law Judge. It is the
Board's established policy to overrule an administrative law judge's
resolutions with to credibility unless the clear preponderance of
all of the relevant evidence convinces that the resolutions are incor-
rect. Standard Dry Wall 91 NLRB 544 enfd.
362 (3d Cir. 1951). We have carefully examined the record and find
no for reversing his findings.
APPENDIX

NOTICE TO EMPLOYEES

POSTED BY OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT coercively interrogate you
regarding your sentiments and activities on
behalf of the Amalgamated Clothing and Tex-
tile Workers Union. AFL-CIO. CLC. or anv
other labor organization.
ous working conditions or reduced benefits if
254 NLRB No. 164
you select the above Union, or any other labor
organization, as your collective-bargaining
resentative.
WE NOT promise you
factory wage increases in order to discourage
your support for the above Union, or any
other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of rights guaranteed you in Section 7
of the National Labor Relations Act.
CORPORATION
DECISION
STATEMENT OF THE CASE
Administrative Law Judge:

This case was heard in Anderson, South Carolina, on

August 11 and 12, 1980. The charge was filed by the

Amalgamated Clothing and Textile Workers Union,

AFL-CIO, CLC, herein called the Union, on

19,
The complaint was issued on March 7, 1980,
and an order setting the hearing issued on March 10. The
complaint, as amended at the hearing, alleges that
Corporation, herein called the Respondent or the
Company, violated Section of the National Labor
Relations Act, as amended, herein -called the Act,
through various acts of interference with employee Sec-
tion 7 activities including interrogation concerning union
activity, threats of discharge or other dire consequences
as a result of union organization, and surveillance of
union activities. The complaint further alleges a violation
of Section and of the Act by the Respondent
in the alleged discriminatory discharge of its employee,
J. T. "Jake" Carter, herein called Carter, on May 22.
Upon the entire including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Respondent, I make the following:
1. JURISDICTION
The Respondent is a Delaware corporation with a
plant or facility in Anderson, South Carolina, where it is
engaged in the manufacture of synthetic fibers used in
the textile industry. During the 12 months preceding the
issuance of the complaint, the Respondent received at its
Anderson plant goods and raw materials valued in excess
of directly from points outside the State of South
Carolina, and during the same period the Respondent
shipped products valued in excess of directly
from its Anderson plant to points located outside the
State. Accordingly, I find and conclude that the Re-
dates are in 1979 unless otherwix stated.
The General Counsel's unopposed motion to correct the transcript.
dated Sentember 15. 1980. is . and received in evidence as G.C.
2(6)
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1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent is an employer engaged in commerce within
the meaning of Section and (7) of the Act.
THE UNION'S STATUS AS A LABOR ORGANIZATION
The complaint alleges, the Respondent's answer there-
to admits, and I find that the Union is a labor organiza-
tion within the meaning of Section of the Act.
THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Independent Violations of Section
It is undisputed that the Union began its organizational
campaign the Respondent's sometime in Febru-
ary. It is also not that the Respondent became
aware of the a short time it began and,
according to General Counsel, began to engage in
conduct violative of Section of the Act beginning
in March. In establishing the alleged violations in this
regard the General Counsel relied on the testimony of a
number of employee witnesses. That testimony and the
Respondent's responses thereto are set forth below in the
order they relate to the individual supervisory agent of
the Respondent without regard to either the chronologi-
cal order of the occurrence of the alleged violations or
the order in which they were alleged in the complaint.
1. Nancy Lewis
Nancy Lewis was employed by the Respondent as a
shift supervisor until a period 6 to 8 weeks prior to the
time she was terminated by the Respondent on July 16 as
a result of her job being abolished. The Respondent does
not dispute that she was a supervisor within the meaning
of the Act at the time when employee Truman Bussey
worked under her direction. It was Bussey's testimony
that, in the "first part" of April, Lewis approached him
at his work station and stated, "I don't think we need a
third party, do you?" Bussey, who testified that the term
"party" was often used by company representatives in
reference to the Union, replied to Lewis' remark stating
that he had not thought much about it. She then re-
sponded that she thought "we" had a pretty good job
with the Company, and Bussey agreed that they did "in
a way." Bussey testified that no other employees were
present to hear the remarks of Lewis, which the General
Counsel contends constituted unlawful interrogation.
Bussey also testified to another instance of alleged in-
terrogation by Lewis in late April. On that occasion
Lewis again approached Bussey on his job, and, also
again with no other employees present, stated that she
had heard that the Union was leaving town and asked
Bussey if he thought that was good. Bussey replied that
he had not heard anything, but expressed the opinion
that the Union was "doing better than that."
A third conversation with Lewis relating to the Union
was described in Bussey's testimony. That conversation
which occurred on May 5 and which also was not wit-
nessed by others was initiated by Lewis' statement, upon
observing Bussey wearing a "union sticker" identifying
him as a member of the union organizing committee,
"Now I know how you stand." Lewis went on to state
that she hoped Bussey knew what he was doing by being
for the Union adding that she wished he would talk to
someone higher up in the Company about it. In further
comments on this occasion Lewis stated, according to
Bussey, that, when Bussey's house had caught fire, she
had given him 2 days off with pay but he would have to
take such time off without pay if the Union "got in."
Lewis further stated that, if the Union came in and an
employee was 6 minutes late, the employee would be
sent back home and not allowed to work. Finally, Lewis
stated that the Company would not have to offer "what
we got now" if the Union came in, and that it would
have no incentive to offer a salary program
Lewis referred to the Respondent's Williamsburg plant4
and stated that that would probably be what the employ-
ees would
Bussey related a fourth conversation with Lewis, again
not witnessed by anyone else, occurring in late June or
early July when Lewis expressed surprise to see him still
wearing a union sticker. She stated that she thought he
would have changed his mind by then, but Bussey re-
plied by expressing dissatisfaction with the way the
Company had "done" him in the past. Lewis responded
that he had done a good job for her and she "referred to
a raise" and stated he would be well pleased with the
raise he would get.
In addition to unlawful interrogation, the General
Counsel argues that the remarks attributed to Lewis by
Bussey constituted not only threats of a loss of benefits
and the imposition of more onerous working conditions
should the employees select the Union as their collec-
tive-bargaining representative, but also a promise of a
wage increase in order to discourage employee support
for the Union. The Respondent, relying on the testimony
of Lewis, argued that her comments to Bussey did not
amount to the unlawful conduct alleged. Lewis, while
admitting several conversations with Bussey, denied the ,
specific remarks attributed to her and alleged to be viola-
tive of the Act. More specifically, she admitted talking
to Bussey about the Union, but was equivocal as to the
number of times, finally contending that it had only been
once. She conceded, however, that she had talked to him
about "facts as she knew what the facts were." She also
admitted that she had talked to Lewis about seeing
"higher management" concerning his dissatisfaction with
a wage increase the preceding year and even made an
appointment for Bussey with the plant manager to dis-
cuss the matter. But she denied that the Union was dis-
cussed in that connection. She further denied that she
had discussed a merit increase for Bussey because he was
not employed under her "long enough for that," but con-
ceded that she knew a raise was coming up sometime in
August or September.
The employees were paid on a salary program at that time as op-
posed to a straight hourly rate.
The Company operated a plant in Williamsburg, Virginia, where the
employees were represented by the Union and covered by a
bargaining agreement effective from June 13. 1977, until June 9, 1980.
On cross-examination, Bussey changed the wording of remark to
reflect that Lewis said that the Williamsburg contract "might" be what
the employees would get.
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BADISCHE CORPORATION 1197
The testimony of Bussey and Lewis cannot be
Cross-examination of Bussey revealed a lack of
concern over relation of his own interpretation of the re-
marks made to him by Lewis rather than strict recitation
of the actual words used. Moreover, in his first statement
submitted to the Board in June he failed to specifically
set forth the April questions he attributed to al-
though he alluded to conversations with her regarding
the Union and "third party" interference. On the other
hand, Lewis' testimony was equivocal regarding the
times the Union was discussed with Bussey and, at times,
evasive and contradictory with respect to her knowledge
of the time that merit increases would be given. Lewis
was particularly unconvincing in her denial on cross-ex-
amination of any awareness of a company policy against
a union while at the same time conceding that there
were meetings with management to discuss "facts" about
the Union. On balance, I am persuaded that Bussey is the
more credible and reliable of the two.
Having credited Bussey, I find as alleged by the Gen-
eral Counsel that Lewis' questions to Bussey in April at
a time prior to his wearing of union stickers clearly solic-
ited a response which could have indicated Bussey's
union sentiments. As such, the questions had a reasonable
tendency to be coercive, as reflected in part by Bussey's
evasive responses. It is well established under Board law
that such probing constitutes interrogation violative of
Section I make that finding here with respect to
Lewis' questioning of Bussey.
I also find on Bussey's testimony that Lewis' remark
to Bussey on May 5 constituted a threat of imposition of
more onerous working conditions and a reduction in
benefits in the event of unionization and violated Section
of the Act as alleged. Those remarks referring to
a loss of the salary program, the sending of tardy em-
ployees home, and the loss of emergency leave privileges
conceivably would not have been unlawful if presented
in the context of the terms provided for in the
burg collective-bargaining agreement should those terms
be agreed on between the Union and the Company at
However, based on Bussey's testimony, that
was not clearly the context in which Lewis couched her
remarks. Rather, although Lewis referred to the
liamsburg agreement as being what the employees
"might" receive, her other remarks indicated the deterio-
ration in working conditions and privileges would flow
not from the Union's acceptance of the terms in the
liamsburg agreement, but from employee selection of the
Union. The comments, therefore, represented a clear
threat of a detrimental change in working conditions if
the Union were selected by the employees, and these
comments were accordingly coercive and violative of
Section of the Act.
I likewise find Lewis' reference to Bussey being
pleased with an upcoming wage increase was violative of
Section as alleged. Following as it did their con-
versation regarding Bussey's support of the Union and
the unlikelihood that he would change his position in
view of "how the Company had done" him in the past,
The Williamsburg agreement, G.C. Exh. provided for hourly
rates rather than salaries and contained a provision under which employ-
ees who reported 5 minutes late for work could be sent home.
Lewis' remark was clearly calculated to effect a change
in Bussey's union support by extending to him the pros-
pect of a pleasing benefit. It constituted, therefore, inter-
ference with his Section 7 rights.
2. Glen Cobb
Employee Tony Brown testified that he had a conver-
sation with Glen Cobb, a shift supervisor for the Re-
spondent, in a plant break area in the presence of em-
ployees Roger Fountain and Jerry in which
Cobb stated that the Union "wasn't nothing but a bunch
of communists." Brown testified that he could not re-
member the context in which the remark was made nor
the other details of the conversation. While the com-
plaint alleges that the alleged statement of Cobb was
made on May 18, Brown's testimony does not reveal
when the remark was made.
While Cobb, called by the Respondent, testified that
he did talk to Brown and Roger Fountain about the
Union, he denied the specific remark attributed to him.
Assuming, that Cobb made the remark at-
tributed to him by and further assuming, with-
out deciding, that the remark would amount to a viola-
tion of Section I find that the evidence fails to
establish the date of the remark. Since the union cam-
paign and activity began in February, it is quite possible
that the remark occurred more that 6 months prior to
the filing of the charge herein. Accordingly, I conclude
that the General Counsel has failed to establish that the
alleged violation based on Cobb's alleged remark was
timely with respect to the requirements of Section
of the Act. Thus, I find no violation of the Act based on
this complaint allegation.
3. Leonard Cole
Employee Max Flemming testified that, on March 31
around 3 p.m. while working overtime under Shift
Leonard Cole, he was called into an air-condi-
tioned booth on the plant floor by Cole, who told Flem-
ming that he had been told by someone that Flemming
had been giving them a hard time about the Union.
Flemming responded that someone had told Cole a
"damn lie." Cole replied, in Flemming's words, "I want
you to know that I will not put up with this, the Compa-
ny will not put up with this, and he said I could be or
would be run off for that, I'm not sure which." Flem-
ming told Cole he had asked some people to sign "union
cards," but he had not given anybody a hard time about
the Union. Flemming complained to his regular supervi-
sor, Sonny Davis, 3 or 4 days later, about Cole's com-
ments and Davis responded that he would straighten it
out and nobody would be talking to Flemming that way
again.
Cole testified for the Respondent that two employees,
Clyde and J. L. Herring, had complained to him
that Flemming, who was working on overtime under
Cole's supervision, had solicited their signatures on union
I found Cobb's denial of the alleged remark credible and convincing
when weighed against Brown's unsupported testimony unenhanced by
any recollection of the details of the conversation.
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1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards during their In fact, Cole testified he
had seen Flemming walking away from as Cole
approached the two immediately prior to com-
plaint that Flemming had been soliciting him. It was be-
cause of these complaints that Cole took Flemming into
the air-conditioned booth where they could talk without
interference from the plant noise. There Cole advised
Flemming that he had a right t o advocate the Union in
the break area on his own time but not on company time
on his job location. Hemming denied that he had been
advocating for the Union, but Cole told him that people
had complained that he had been trying t o get them to
sign a union card. Flemming responded that anybody
who said that was a liar" and that he would
tell them to their faces. Cole admittedly raised his voice
and told Flemming he did not have the right t o solicit on
company time at his job location, that he was not going
to pay Flemming overtime rates t o d o something illegal,
that Cole was not going t o have Flemming harassing his
operators or cursing him, and that, if he cursed his
ators, he "would run him off."
In support of Cole and in opposition t o Flemming's
denials in his testimony that he had solicited anyone re-
garding the Union, the Respondent presented employees
Clyde and J. L. Herring. Both testified that
Flemming had asked them to sign a union card during
their and both were prompted thereby t o com-
plain to Cole about Flemming.
Cole impressed me as a truthful witness and his ver-
sion of his remarks to Flemming is reasonable and credi-
ble, particularly in light of the timing of his remarks after
the complaints of and Herring who also im-
pressed me as credible. Moreover, Hemming expressed
some equivocation on cross-examination regarding the
wording of his own remarks to Cole and, in effect, con-
ceded that he may have included Cole in his use of the
term liar." Such concession lends credence t o
Cole's own response as related by him. In my view,
Flemming's testimony does not become more believable
because he complained to Davis about Cole. The record
does not show exactly what he told Davis.
it is unlikely that Davis would have so quickly con-
demned Cole, a fellow supervisor, without first checking
into it. Accordingly, crediting Cole, and Her-
ring, I find no violation of Section in Cole's re-
marks either as unlawful interrogation or an unlawful
threat of discharge for legitimate union activity.
4. Jerry McCoy
J. T. Carter related that on May 3 he was in the office
"shooting the bull" with employees Roger Dean, Bobby
and Randolph Berry. At some point, Shift
Supervisor Fred Edmonds entered the office and then,
subsequently, Shift Supervisor Jerry McCoy also came
in. McCoy observed a green sticker on Dean's shirt
pocket identifying Dean as a member of the Union's or-
ganizing McCoy reached toward the sticker,
but Dean smacked his hand away. McCoy's response
There is no contention by the General Counsel that the Respondent's
no-solicitation rule forth in its employee handbook, G.C. Exh. 8, was
in any way unlawful.
The stickers had been out at a union meeting the day
was to ask if all the employees that had signed a union
card were wearing "one of those," referring to the stick-
er. Carter, rather than Dean, responded negatively, but
added that they could if they wanted to. McCoy re-
marked that he "just wondered."
McCoy denied the incident and the remarks. No other
witnesses to the incident and McCoy's comments were
called by either side.
In this instance, I credit Carter, who had the appear-
ance of a truthful and reliable and who capably
articulated his version of the incident. I therefore find
that McCoy's question of Dean constituted interrogation
in violation of Section of the Act as alleged.
McCoy's question was not privileged because of Dean's
open union support nor was the coercive impact of the
question diminished by the absence of any attendant
threats. PPG Industries, Lexington Plant, Fiber Glass
Division, 251 NLRB 1146 (1980). Furthermore, and in
any event, the question extended beyond Dean's union
involvement and reflected an effort to ascertain the
extent of the Union's support among other employees.
No legitimate basis for the question was shown to exist
and, as already stated, I find it clearly coercive and un-
lawful as alleged.
5. Bob Burgess
Three incidents of unlawful interrogation were attrib-
uted t o Shift Supervisor Bob Burgess by Carter and em-
ployee Mary Thus, Carter testified that around
March 21 he asked to see a copy of the Re-
spondent-Union's collective-bargaining agreement cover-
ing the Respondent's Williamsburg plant. When Carter
went into Burgess' office, Burgess handed him the agree-
ment and asked, "Jake, how d o you feel about the
replied that he was for organized labor
and believed it was the "best benefit of the working
people." There followed a discussion of the Union for a
few minutes after which Carter turned his attention t o
reading the agreement. As he started to leave, Burgess
told Carter that they had had a meeting "upstairs" and
that Carter's name was and asked, "You know
what I told them?" At Carter's negative reply, Burgess
said he had told "them" that Carter had probably signed
a union card but would not be active. Caner remarked
that he had not planned to be active and left the office.
On April 20 Carter began wearing a homemade sticker
in the plant on his pencil pouch containing the legend:
"Be wise, organize." On April 23 he engaged in open
handbilling in support of the Union on the plant prem-
ises, as will be disussed in further detail below. On April
24 Carter was called to Burgess' office where Burgess in-
quired, "How is the Union doing, Jake?" Carter replied
it was doing alright. Burgess then asked how many
people had signed cards and Carter replied that he did
not know for certain but he thought a majority of em-
ployees had signed.
Burgess in his testimony denied the questions and re-
marks attributed to him by Carter although he admitted
Carter had come to his office to peruse the Williamsburg
agreement and had commented that, no matter what
benefits the Company gave employees, the Union
BADISCHE CO IRPORATION
8(a)(l) as
Simpson,
Simpson.
Simpson
Williamsburg Simpson
Simpson
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Simpson
Simpson
Simpson
Simpson
Simpson.
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prounion Simpson
Simpson, Simp-
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1199
"would get you more." As previously stated, Carter im-
pressed me as a reliable witness. His testimony with re-
spect to Burgess' remark concerning advising the people
"upstairs" about Cater's union inclinations is enhanced
by the frank admission of Production Manager Phil
Greeson that in supervisory meetings supervisors shared
information concerning their personal opinions about
whether an employee was supportive of the Union or the
Company. Greeson testified that he always had access to
a "straw poll" of those for or against the Union. Accord-
ingly, I credit Carter where his testimony contradicts
Burgess' regarding Burgess' remarks. On Carter's version
of Burgess' questions and remarks, I find that the Re-
spondent unlawfully interrogated Carter on March 21
and April 24 in violation of Section alleged in
the complaint.
Mary who was employed by the Respondent
at the time of the hearing and who admitted her opposi-
tion to the Union, testified for the General Counsel re-
garding a conversation with Burgess in which the Gener-
al Counsel contends that Burgess interrogated
related that, in early May, Burgess approached
her at her work station and gave her an information
sheet that he was distributing containing a comparison of
the Respondent's employee benefits with those under the
agreement. Burgess asked if she
had been "talked to" by anybody, either for or against
the Union, on her job. replied that she had not
been "bothered," and Burgess explained that he wanted
to know because, if anybody bothered her "either talking
[to her] for or against the Union," she had a right to
complain about it because she was not to be bothered on
her job. replied that no one had bothered her
on her job.
Burgess admitted having a conversation with
regarding the Union. In his version Simson broached the
subject by stating that "a lot of friction" was created be-
cause of the union activity. volunteered that she
had been a "member of Management" at some other
plant and was opposed to unions. However, while he
denied asking if she had been talked to by
anyone for or against the Union, he admitted on cross-
examination telling her that if she were bothered by
anyone on the job she had a right to complain.
I credit Simpson's testimony to the extent that it con-
tradicts that of Burgess. was not sympathetic to
the Union and would not be inclined to prevaricate in
any situation which might be regarded as supportive of
the Union. Based on Simpson's testimony, the General
Counsel argues that Burgess unlawfully interrogated
This argument is based on the premise that,
since Burgess knew Simpson's opposition to the Union,
he could expect that there would be little likelihood that
anyone would approach to solicit company sup-
port. Thus the thrust of Burgess' question was whether
any employee had spoken to about
supporting the Union.
I find the General Counsel's argument on this issue
lacking in substance. It ignores the fact that Burgess'
question was couched in terms of Simpson's being both-
ered on her job by persons both for and against the
Union. The question was not extended to a report of
union activity generally. Furthermore, contrary to the
primary premise on which the General Counsel rests his
theory, there was no clear evidence that Burgess knew
of Simpson's procompany position prior to the time he
asked her if she had been "talked to," pro or con, on her
job. Accordingly, considering the whole conversation as
related by I find Burgess' "question" to
son to be nothing more than a request to report anyone
who by soliciting pro or con on the union issue inter-
fered with her work on the job. Burgess' question and
statements to in this regard do not amount to an
violation and I shall recommend dismissal of the
complaint in this regard.
6. Alleged surveillance by Burgess and McCoy
The complaint, as amended, alleges that the Respond-
ent, through McCoy and Burgess, engaged in surveil-
lance of its employees in order to discourage their union
activities during the period from April 19 to May 18.
The sole witness in support of this allegation was Carter,
who testified that, he started wearing a sticker on
his person in the plant indicating his union sympathies,
he "believed" that McCoy and Burgess started following
him deliberately when he would go on breaks. More spe-
cifically, Carter related:
I knew that shortly after I arrived on my break
either one or both of them would come in occasion-
ally one of them, or both of them, would already be
in the break area but not nearly with the frequency
that they had. They had not been in the break area
along with me with nearly the frequency that they
did after I started wearing the Union insignia.
Carter's testimony provides no further details relative
to the frequency either McCoy or Burgess was in the
break room with him either before or after April 19.
Both McCoy and Burgess denied that they purposely fol-
lowed Carter to the break room after he began wearing a
union sticker.
The facts, as related by Carter, do not present a situa-
tion similar to that involved in Corporation, 216
NLRB 691 where the Board held that the imposi-
tion of a new requirement that supervisors eat with em-
ployees in the same area after the union campaign started
was violative of Section because it was designed
to interfere with employee union activity. See also Haw-
thorn Company, A Division of Company,
NLRB enfd. 1208-09 (8th Cir.
and Liberty Homes, 245 NLRB 1 194
(1979). Carter concedes that Burgess and McCoy took
breaks with him and other employees prior to his union
activity. Thus, McCoy and Burgess were entitled to con-
tinue to take their breaks as before. I find no evidence
here of an unlawful purpose in taking breaks concurrent-
ly with Carter. Carter's allegation of the more frequent
presence of McCoy and Burgess at breaks which might
tend to support a finding of an unlawful purpose is no-
where fleshed out. Carter could recall only one specific
instance where McCoy and Burgess were in the break
room together with him after his union activity became
known. And Carter's testimony incicates that on
i
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Ca, Inc., A-T-0,
Znc., (1978),
gatehouse.1°
Tarrant Company,
(1972),
l o
observed premises,
15.
!
i Larand j
Leisurelies Inc., Acacio ;
Individualb; Inc.;
(1 Inc.
169 Inc., T 0 . D .
Inc. AIIan Jervis Corp.,
(1966),
Inc. Corp.,
Vaughn
stickers
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion either Burgess or McCoy were in the break area
before he arrived, so they obviously could not have fol-
lowed him there. Absent some definitive explanation of
the extent of the increase of the presence of McCoy or
Burgess in the break area, I am unwilling to infer or find
that the General Counsel has established the violation al-
leged in this regard by the requisite preponderance of
evidence.
7. Alleged surveillance by Greeson and Vaughn
It is undisputed that the Union engaged in handbilling
of employees at the Respondent's plant on April 23.
Carter participated in that handbilling which took place
at the "lower entrance" to the employee parking lot. He
testified that Production Manager Phil Greeson and
Larry Vaughn, the Respondent's supervisor of personnel
services, drove by, slowed down, looked toward the em-
ployees, including Carter, who were handbilling, and
then proceeded to drive on into the employee parking
lot. Carter testified that it was normal for management
people to park in a parking lot on the opposite side of
the Respondent's administration building, having a sepa-
rate entrance from the highway. According to Carter,
employees had been notified years earlier of the con-
struction of the parking lot for management people in
order to aviod the congestion in the employee lot. More-
over, Carter related that he had observed Greeson on
occasion using the management lot.
The General Counsel argues that Greeson and Vaughn
went "out of their way" to park in the employee lot in
order to observe the handbilling on April 23, and there-
by engaged in unlawful surveillance. The General Coun-
sel cited Ace Manufacturing Division of
235 NLRB 1023, 1025-26 to support this
proposition.
While Greeson and Vaughn conceded that they may
have observed the handbilling, they denied making a spe-
cial effort to do so. More specifically, Greeson testified
that he used the employee parking lot on numerous occa-
sions because it was closer to the entrance of the produc-
tion facility. Moreover, according to Greeson's testimo-
ny which was uncontradicted in this regard, plant super-
visors regularly used the employee parking lot. Greeson
added that, if he had wanted to know who was handbill-
ing, he could have either asked his supervisors or person-
ally observed the handbilling from the plant
The Respondent argues that no unlawful surveillance
occurred and cites Manufacturing 196
NLRB 794 containing the following frequently
quoted language of the Trial Examiner in that case at
799:
The notion that it is unlawful for a representative of
management to station himself at a point on man-
agement's property to observe what is taking place
at the plant gate is too absurd to warrant comment.
If a union wishes to organize in public, it cannot
demand that management must hide.
There appears to be no dispute that the handbilling could have been
from a number of places on the plant or by anyone
driving by on a four-lane highway in front of the Respondent's facility
depicted in an aerial photograph which is G.C. Exh.
Porta Systems Corporation, 238 NLRB 192 (1978);
213 NLRB 917, 205 (1974);
Guerra, Columbia Casuals, Guerra Gar-
ments; and Island Pond Mfg. Co., 180 NLRB 741, 747
970); Dumas, d /b /a Sterling Manufacturing Compa-
ny, NLRB 892 (1968); Milco, Manufac-
turing Co., and Marine Division of
159 NLRB 812, 814 are also cited by the Re-
spondent.
Initially, on this issue I find the evidence insufficient to
establish any specific effort by Greeson and Vaughn to
observe the handbilling. I accept Greeson's credible testi-
mony that he frequently used the employee parking lot.
Since the regular management parking lot was accessible
through the entrance where the handbilling was taking
place, there would have been no need to carry out any
subterfuge by parking in the employee lot simply to uti-
lize that entrance. Moreover, it would have been unnec-
essary to use the employee lot to observe the picketing
because it could have been easily observed from the ad-
ministration building or by simply driving by on the
highway. I find no special effort to observe the handbill-
ing or interfere with it.
Even assuming there was a special effort to observe
the handbilling, I concur in the Respondent's position
based on the cases cited above that no violation was es-
tablished by any such observation. Ace Manufacturing
Co., supra, cited by the General Counsel is inapposite. In
that case a union meeting took place on the employer's
premises and two management representatives placed
themselves within a few feet of the employees engaged
in the meeting and observed it. The Administrative Law
Judge with the Board's approval specifically found that
such observation was "designed to disrupt the meeting."
No such attempt to disrupt a meeting through close ob-
servation was involved in the case sub judice. The evi-
dence here would show, at the most, a "brief inspection
by Respondent of open union activity in front of its
property which does not constitute surveillance" Polly
Lingerie, and Argus Lingerie 252 NLRB 176
(1980).
Considering the foregoing, I find no unlawful surveil-
lance by Greeson and and I shall recommend
that the complaint be dismissed with respect to this alle-
gation.
B. The Alleged Discriminatory Discharge of Carter
Carter had been employed by the Respondent for
about 10 years prior to the time of his discharge and
worked as a machine setter. There appears to be no dis-
pute regarding his ability as an employee and a number
of appraisals of his work and conduct reflecting the Re-
spondent's general satisfaction with him were received in
evidence. Prior to his union activity, Carter enjoyed the
confidence of his superiors and maintained an agreeable
working relationship with them. Carter testified, howev-
er, that following the beginning of his union activity he
detected a cooling of the previously friendly relationship
he had enjoyed with Supervisor Burgess. Knowledge by
the Respondent of Carter's union sentiments and activity
is not disputed. The fact that he wore union or
BADlSCHE 1201
handbilling
supervisors,
office
confidential.ll
18
10
was
1030
copies
Rogers,
lefi
1 1
"I
3:00
Bur- P
gess
15
CORPORATION
insignia in the plant beginning April 20 was well known,
and his on April 23 for the Union as already
related herein was clearly observable by management
personnel. Furthermore, Carter had expressed his union
inclinations to Burgess in March in response to Burgess'
questions regarding how he felt about the Union.
The events and the conduct of Carter on which the
Respondent relied in discharging Carter occurred on
May 18. There is little dispute with respect to the materi-
al facts concerning such events and conduct.
The Respondent. as has been previously indicated,
made copies of the Williamsburg agreement available to
the employees in the offices of its including
the of Burgess. Reproduced copies of the agree-
ment were contained in binders for perusal by employees
in the supervisors' offices. In addition, certain of the su-
pervisors, including Burgess, were provided with regular
printed copies of the agreement in booklet form. Obvi-
ously the terms of the Williamsburg agreement were not
secret or Indeed, it appears, and I con-
clude, that the Respondent, as part of its opposition to
organization, invited comparison by employees of their
current employee benefits and working conditions with
those provided under the Williamsburg agreement.
On the morning of May around 8 o'clock, Carter
was appproached at work by employee Barbara Rogers,
wife of Shift Supervisor John Rogers and a staunch sup-
porter of the Respondent's opposition to the Union.
Rogers showed Carter some language regarding employ-
ee sick leave benefits which she claimed to have copied
out of the Williamsburg agreement in an effort to prove
a point on an argument the two were having about such
benefits. Carter disputed the accuracy of the language,
saying it did not look like what he had read. At about
a.m., Rogers approached Carter again, this time with a
printed copy of the Williamsburg agreement in the book-
let form and offered it to Carter, claiming she could
prove him wrong. Carter rejected the proffered booklet
saying it was against the law for either to be soliciting
and he was not going to take the booklet. She insisted
that he take it but he continued to refuse. She then left
him, stating that she only trying to help him but he
was "dumb and stupid."
Rogers approached Carter a third time at or around
a.m., and offered him the booklet again still claim-
ing she could prove he was wrong. Carter again de-
clined, explaining that it was against "Federal Law" for
either of them to be soliciting in the work area. As
Carter turned to leave, she grabbed him and turned him
around, again asking that he take the booklet. This time
Carter took the agreement saying he would read it when
he went on break. He took the booklet, stuck it into his
back pocket, and turned to walk away. He testified that
he felt someone grabbing and jerking at his back pocket
and turned to discover it was Rogers, who demanded he
give the booklet back to her, but Carter refused, stating
that he was not going to do so in a work area. A scuffle
followed which lasted several minutes with Rogers
biting and scratching Carter's wrist. Carter persisted in
The Union likewise, of course, had of the agreement availa-
ble.
his refusal to surrender the booklet to and she
finally him. Carter, because of what he apparently
perceived was bizarre behavior on Roger's part, conclud-
ed he was being "set up" for disciplinary action, and
began to jot down "notes as to some things that hap-
pened."
At a.m., Carter was approached by Burgess, who
told Carter that Carter had his book and he wanted it
back. Carter inquired what book and Burgess replied it
was the "little yellow book you took from Barbara" and
added that it was Burgess' personal property and he
wanted it back. Carter admitted Rogers had given him
the book while soliciting for the Company, told Burgess
she had tried to take it away from him, and "showed"
Burgess the bite and scratch marks. Burgess appeared to
ignore such marks and stated that he had dropped the
book in the smoke lag (designated smoke break area) that
morning. Burgess became angry, stated that nobody had
been soliciting anybody, stated that Carter had his per-
sonal property, and repeated that he wanted it back.
Carter continued to deny that he had Burgess' personal
property. As he left, he told Carter that he would see
that Carter gave it back.
Around noon, Carter observed Rogers in McCoy's
office with McCoy and Burgess. Rogers appeared to be
crying.
At 2 p.m.. Burgess asked Carter to come to the office.
There Burgess told Carter that Carter had his personal
property and want it in my hands or on my desk by
three p.m." Carter asked if he could go get a couple of
witnesses and Rogers. Burgess replied that the conversa-
tion was ended. Carter responded, "You mean I can't go
out and get some witnesses and Barbara Rogers and get
this matter settled?" At that point Burgess "patted" the
desk with his fist and stated that he had "said what he
said and Carter would have the book on his desk or in
his hands by p.m. or else." While Carter still had
the booklet on his person, he did not proffer it to
before he left the office.
Subsequently, Carter, admittedly confused and fearing
a setup, rather than preparing to surrender the book to
Burgess, surreptitiously passed the booklet to employee
Dan Hudgins to take it out of the plant. Carter explained
in his testimony that he thought he might be searched as
he left the plant and did not want to be accused of
"stealing" company property. Carter made no attempt to
meet the 3 p.m. deadline imposed by Burgess for surren-
dering the book, nor did he make any effort to return the
book t o Rogers.
At or around minutes prior to quitting time at 4
p.m., Burgess again called Carter to his office. There
Burgess told him that Burgess had asked him twice
before and he was asking for a third and final time for
the return of Burgess' personal property, adding that if it
were not returned Carter would be terminated. Carter
expressed doubt as to Burgess' seriousness in view of
Carter's length of service with the Respondent, but Bur-
gess did not reply. At or about that time Greeson en-
tered the office and asked if Carter clearly understood
what Burgess had said and Carter replied affirmatively.
Carter protested that he did not have Burgess' personal
1202
property,lZ Williams-
lo
h a ~ ~ e n e d . mint
Gree-
l 2
Burgess
her. 'Vurgess
it.l4
office
dischnrged
(1)
8(a)(I)
obje~tionable;'~
10
16
13
would
Rogers,
14 complaint
breaktime
I S
Cornpony, Inc., (1978).
unreported
representation case.
I s
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but that he did have a copy of the
burg agreement that Rogers had given him while solicit-
ing for the Company. Greeson asked Carter have a
seat and wait a minute, but Carter told him that he was
being threatened with termination for something he had
not done. Carter also stated that if he were going to be
terminated he wanted to be terminated before 4 o'clock.
Greeson came back in a short time and in the presence
of Burgess and Area Supervisor Doug Partridge, who
came into the office again, asked Carter if he understood
what Burgess had said and if he realized the seriousness
of the matter. Carter said he understood what was said
but did not understand what it was about and continued
to deny that he had Burgess' personal property. Greeson
replied that Carter knew it was Burgess' property since
it had Burgess' name on it. Carter stated he did not
know that, but added that he could not give the book
back even if he wanted to for he no longer had it, and as
far as he knew it was "already off plant property."
Carter protested that all this was "about my Union activ-
ities," but Burgess replied that it had nothing to do with
"Union activities." Carter countered that it did because
"it [the Williamsburg agreement] was Union material."
At this point Greeson again stated that Carter had Bur-
gess' personal property and if Carter did not return it he
would be terminated. After a pause Carter asked if that
were all and Greeson replied that is was, noted that it
was 4 o'clock, and stated Carter could go home.
Carter left and met Hudgins outside the plant where
Hudgins returned the booklet to Carter. Carter observed
for the first time Burgess' name on the book, but made
no effort to return it to Burgess.
On the next normally scheduled workday for Carter,
May 22, he returned to the plant. He was stopped at the
plant gate by the security guard who advised him that
Vaughn wanted to see Carter in the administration build-
ing. Carter asked instead that Vaughn meet him at the
gate. During the time Carter was waiting for Vaughn to
meet him, Doug Partridge came out with another man-
agement representative, Howard, and advised Carter that
Carter had been terminated effective May 18. There was
a brief argument over whether Greeson had specifically
told Carter he was fired with Carter contending Greeson
had only threatened to fire him. Partridge asked why
Carter had not given the booklet back and Carter an-
swered that it was because he thought it was a "set up"
and that he had witnesses who had already given him
statements and who had seen .. At that
Vaughn came out, confirmed that Carter had been termi-
nated, and asked Carter to come to his office to discuss
some matters. Carter agreed to do so and in the ensuing
interview Vaughn explained that Carter was terminated
effective May 18 for "willfully taking Company property
and refusing to give it to his immediate supervisor when
instructed to do so."
The foregoing details of the May 18 and 22 events are
as related by Carter. The testimony of Burgess and
son is in agreement with Carter's in most respects but
The booklet which was the subject of the incident was submitted
into evidence by the General Counsel. (G.C. Exh. 17.) It has the name of
clearly written on the face of it. but Carter testified he never
noted Burgess' name on it until after he left the plant on May 18.
with some differences. Thus, Burgess explained that he
gave his printed copy of the Williamsburg agreement to
Rogers in a smoke break area at her request to settle
some dispute regarding what Carter was "telling the
people." Later Rogers reported to him that Carter had
jerked the booklet away from then went
to Carter and asked for the return of the booklet. Carter
responded that he felt Rogers was soliciting for the
Company and "if anyone accused him of soliciting for
the Union he had proof she had solicited for the Compa-
ny and he might not give it [the booklet] back." Burgess
denied that Carter claimed Rogers had struggled with
him and bitten and scratched him although he admitted
Carter held up his hand and was rubbing Burgess'
testimony also differed from Carter's with respect to
Carter's responses to Burgess' ultimatum delivered
around 2 p.m. Thus, Burgess denied that Carter asked to
get Rogers in the and, instead, asked only to get
"witnesses" in there. It was at this point that Burgess re-
plied that he had said all he was going to say.
Burgess, Partridge, and Greeson all testified contrary
to Carter that Carter was specifically told as he left the
office on May 18 that he was fired and, lastly, Partridge
testified that when he asked Carter on May 22 why
Carter had not given Burgess the booklet Carter replied,
"Because they made such an issue out of it." Carter, on
cross-examination, could not recall the remark notwith-
standing his generally clear recall of other remarks.
Based primarily on Carter's testimony the General
Counsel contends that his discharge was pretextual and
that he was in fact because of his union activ-
ities. In support of this contention the General Counsel
relies on: the Respondent's union animus as reflected
in my findings herein with respect to the alleged
violations as well as that demonstrated in its conduct
with respect to a September election which the Board
found to be (2) the fact that the booklet
over which Carter was discharged was not a confidential
document and had no intrinsic value which warranted
the discharge of a satisfactory employee of years'
service on failure to return it; (3) the Company's vacillat-
ing reasons for the discharge as shown by its reliance on
failure to return "Company property" as a basis for the
discharge when in fact Burgess had insisted that it was
his property, and also by its marking of at least one com-
pany record showing the discharge was for "insubordina-
t ion~ . (4) the Company's failure to follow established ,
While Rogers was not called by eifher side i t should be observed
that her vigorous efforts to have Carter give her the booklet back. even
to the point of biting and scratching him, be entirely consistent
with Caner's "jerking" it away from her and walking off with it. How-
ever, in the absence of testimony by and because 1 found Carter
generally credible, I credit his testimony that he did not take the booklet
away from Rogers.
Because of Carter's about Rogers' "soliciting." Burgess
called Rogers in and told her she was not to solicit for any reason other
than on or personal time.
At the request of the General Counsel and on the authority of Best
Products 236 NLRB 1024 1 have taken administra-
tive notice of the Board's decision, in Board bound volumes.
in the related (Case I I-RC-4726.)
On this point, however. I must observe that the one company
record showing insubordination as a basis for the discharge was credibly
Continued
BADISCHE
supervisor^.^^
"dishones-
ty,"19 violation^,"^^
supervis~r,~
1KZa
Rogers
areeson,
db-
l B
20
2 1 Exh.
22
that
Lor F.2d
e.g.,
Inc., KIate
(1
8(a)(3)
Inc.,
suff~ient
es
Inc.
M. & Inc.,
Nuys
CORPORATION 1203
progressive procedures with respect to discipline, in-
cluding the giving of oral warnings, and written warn-
ings prior to discharges; and (5) the failure of the Com-
pany before discharging Carter to follow an established
progressive procedure for the "adjustment of misunder-
standings" between employees and their
The Respondent's position, simply stated, is that
Carter was discharged for his defiant and inexplicable re-
fusal to return Burgess' copy of the Williamsburg agree-
ment. The Respondent's brief points out that the booklet
which Carter refused to return was Burgess' personal
copy which had been issued to supervisors, that Carter
was ordered to return the booklet at four different times
but refused, and that employees previously had been dis-
charged for taking company property and for insubordi-
nation. Moreover, the Respondent, through Vaughn's
testimony and employee records, established that em-
ployees had been discharged in the past for
"safety rule and failure to follow
instructions of a all without prior disciplin-
ary warnings. Moreover, the Respondent pointed out
that it discharged Barbara Rogers for "misconduct" on
May 24, without prior disciplinary warnings following its
determination that she had in fact engaged in a fight
with Carter on May In short, the Respondent
argues that its actions with respect to Carter were not in-
consistent with its policies and procedures and were not
based on his union activities.
I have previously indicated that Carter was generally
an articulate and credible witness. His testimony regard-
ing his encounters with was not contradicted,
but, on the contrary, was substantially supported by the
testimony of employee Joel Parker who credibly related
that he had seen a portion of the struggle. I have also
found Carter more credible than Burgess with respect to
certain remarks found unlawful by me herein. Accord-
ingly, I credit Carter where his testimony differs from
that of Burgess. I find it unnecessary to resolve the con-
tradiction between Carter's testimony on the one hand
and that of Partridge, and Burgess on the
other, as to whether Carter was specifically told he was
discharged when he left the plant on May 18. This issue
is academic in my view since the Respondent made it
abundantly clear, by Carter's own testimony, that he
would be discharged if he did not return Burgess' book-
let by 4 p.m. That warning was never retracted, the
booklet was not returned, and Carter did not seek to
extend the time for returning it. Moreover, Carter impu-
dently refused to stay beyond 4 to discuss the matter fur-
ther when offered overtime. Finally, assuming Carter
explained by Vaughn as resulting from the necessity to place the
charge under a broader category for computer recordkeeping purposes.
These procedures are set forth in G.C. Exh. 10.
The "Adjustment of Misunderstandings" procedure is included in
the employee handbook, G.C. Exh. 8.
Resp. Exh. 6.
Resp. Exh. 7.
Resp. 9.

Resp. Exh. 8. Partridge's testimony was that he was not aware of
the struggle between Carter and Rogers until he heard rumors of it on
May 21. Thereafter he called in five employees, including Joel Parker, a
witness herein, during the following days when they returned to work,
and found that a struggle had taken place and Rogers was discharged for
it.
was not in fact discharged until May 22, the delay in the
discharge would be more consistent with the absence.
rather than the presence, of discrimination.
It is clear Carter engaged in union activities and
that the Respondent was well aware of Carter's union
activities. But is likewise clear that an employee is not
insulated from discharge by such activities. N.L.R.B. v.
Ayer Sanitarium, 436 45, 49 (9th Cir. 1970). The
Board had frequently pointed out that, if an employee
provides an employer with sufficient cause for discharge
for which he would have been terminated in any event,
his discharge cannot be held unlawful merely because he
had previously engaged in union activity. See.
Golden Nugget, 21 5 NLRB 50 (1 974); Holt
Company, 161 NLRB 1606 966).

In cases alleging
violations involving employer
motivation, as here, the General Counsel has the burden
of establishing "a prima facie showing sufficent to sup-
port the inference that protected conduct was a motivat-
ing factor in the employer's decision." Wright Line, A Di-
vision of Wright Line, 251 NLRB 1083 (1980). In the
instant case, based on knowledge of Carter's union activ-
ity, the Respondent's union animus, Carter's length of
service as a valuable employee, and the other factors
enumerated in the General Counsel's arguments above,
the Respondent's motivation in Carter's discharge is sus-
picious. I am not persuaded, however, that the evidence
is to support the inference that a motivating
factor was Carter's union activity. This is because
Carter, by his own testimony in refusing to return the
booklet to Burgess, engaged in conduct which by any
measure must be regarded deliberate, provocative, de-
fiant, and insubordinate. The Act does not protect em-
ployees from their own misconduct and insubordination.
New York Patient Aids, d /b /a Guardian Ambulance
Service and American Medical Supplies, 228 NLRB 1131
(1977). This is true even where union animus is present.
H. Patterson Son. 244 NLRB 489 (1979). After
all, not all union animus supports a finding of unlawful
motive. Van Publishing Company, 167 NLRB 415
(1967). Carter was not provoked into his insubordinate
conduct by the Respondent. He admittedly knew as
early as 2 p.m. that his failure to return the booklet to
Burgess could result in disciplinary action against him.
Yet, in direct defiance to Burgess' reasonable request to
surrender the booklet by 3 p.m., Carter surreptitiously
arranged to get the booklet out of the plant. He obsti-
nately continued to refuse to return the booklet or at-
tempt to return it. Even after he left the plant on May
18, and saw, after Hudgins returned the booklet to him,
that Burgess' name was on it, Carter made no attempt to
return it to Burgess or otherwise mitigate or avoid the
consequences of his prior conduct. One must conclude,
and I so conclude, that he at no time had any interest in
returning the booklet to either Burgess or Rogers from
whom he had received it, and willingly incurred any risk
of discipline involved in his failure to return the booklet.
There is absolutely no evidence that the Respondent,
through Rogers, set Carter up for discharge. Nor was
there any evidence that Burgess, prior to seeking the
return of his booklet, could have expected Carter to
4
I204
4
1
I
Wil-
liamsburg
8(a)(3)
cases.z3
scume
record,24
offense
'' Rcsp. 8
I
i
1.
2(6)
2(5)
representative,
8(a)(1)
2(6)
8(a)(3)
1qc) '
2s Sec.
recommended
Sec.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
?
refuse to return it. Even when threatening disciplinary Based on the foregoing, and considering the record as
action or discharge the Respondent gave Carter a rea- a whole, I am persuaded that the complaint with respect
sonable opportunity to comply with its directions.
It is true, of course, that the booklet that served as a
focal point of dispute had little intrinsic value, but this
factor loses significance in the face of Carter's defiant
conduct. The issue was not the value of a booklet but
whether Carter would comply with the reasonable re-
quest of Burgess to return his personal copy of the
agreement.
Carter's length of service also has little meaning in as-
sessing Respondent's motivation under the circumstances
of this case. While an employer in the absence of dis-
criminatory motivation would naturally be reluctant to
dismiss a valued employee, toleration of insubordinate
conduct can be carried only so far. Carter left little room
here to excuse his conduct. Discrimination in the dismiss-
al of a valued employeed may not be inferred where, as
here, the employer grants the employee the oportunity to
avoid the imposition of discipline. Nor can the Respond-
ent's discipline under the circumstances here be said to
be out of proportion to the behavior of Carter.
Considering the foregoing, I am persuaded that by his
own relation of the events of May 18 Carter deliberately
and daringly provoked his own discharge. Accordingly,
I find no violation of Section and (1) of the Act
in his discharge.
Even if I were to conclude that a prima facie showing
of discrimination were established here and the burden
thereby shifted to the Respondent consistent with the
teaching of Wright Line, supra, to demonstrate that Cart-
er's discharge would have taken place even in the ab-
sence of his union activity, I would find that the Re-
spondent has satisfied that burden. Thus, the Respondent
through Vaughn's testimony, which I credit, has demon-
strated that progressive discipline is not adhered to in
severe Indeed, there was no progressive disci-
pline imposed in Roger's case for her with Carter.
Moreover, based on Rogers' dismissal she had
a tenure of employment equal to that of Carter. Yet, not-
withstanding her presumable value as an employee as a
result of that tenure, she too was discharged. While Cart-
er's differs in kind from that of Rogers, it was no
less serious so that the Respondent's discharge of Rogers
serves to dispel the notion of disparate treatment of
Carter.
The Respondent's treatment of Rogers vis-a-vis her
possible violation of the no-solicitation rule evinces no
leniency toward her. Burgess' uncontradicted testimony
was that he called her in and reprimanded her for possi-
bly soliciting Carter on worktime. This treatment is not
out of line with that accorded union adherent Flemming
by Cole as already detailed herein.
Finally, the Respondent's discharge of Rogers renders
moot any failure to investigate her conduct contempora-
neously with the discharge of Carter. Carter was not dis-
charged for his encounter with Rogers, but rather for his
adamant refusal to give Burgess back the booklet.
The Respondent's stated policy, G.C. Exh. 9, allows for termination
without final warning in "severe cases."
Exh.
to the unlawful discharge of Carter must be dismissed. ,
The Respondent is an employer engaged in com-
merce within the meaning of Section and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section of the Act.
3. By coercively interrogating its employees concern-
ing their union sentiments and activities, by threatening
its employees with more onerous working conditions and
reduced benefits if they selected the Union as their col-
lective-bargaining and by impliedly prom-
ising an employee a satisfactory wage increase in order
to discourage suppport for the Union, the Respondent
violated Section of the Act.
4. The violations of the Act noted above constitute
unfair labor practices affecting commerce within the
meaning of Section and (7) of the Act.
5. The Respondent committed no unfair labor practice
within the meaning of Section and (1) of the Act
by discharging its employee J. T. Carter on May 18,
1979.
6. The Respondent has engaged in no other unfair
labor practices not specifically noted above.
Having found that the Respondent engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
of the Act, I hereby issue the following rcommended:
The Respondent, Badische Corporation, Anderson,
South Carolina, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
sentiments and activities.
(b) Threatening its employees with more onerous
working conditions and reduced benefits if they selected
the Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC, as their collective-bargaining repre-
sentative.
(c) Impliedly promising employees a satisfactory wage
increase in order to discourage their support for their
Union.
In the event no exceptions are filed as provided by 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and Order herein shall, as provided
in 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
I205
thereaf-
" A p p e n d i ~ . " ~ ~
Uniled
Coun ALSO
BADISCHE CORPORATION
(d) In any like or related manner interfering with, re-
straining, or coercing empoyees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its plant in Anderson, South Carolina,
copies of the attached notice marked
Copies of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by the
In the event that this Order is enforced by a Judgment of a
States of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.