Brunswick Electric Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1992

308 N.L.R.B. 361 (N.L.R.B. 1992)

361
308 NLRB No. 69
BRUNSWICK ELECTRIC CORP.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
In addition, the Respondent contends that some of the judge’s rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that the contentions are without merit.
2 In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(3) and (1) of the Act by discharging employee George
Douglas Smith on May 10, 1990, we do not rely on the fact that
a criminal assault charge was filed against Robert W. Leavitt, the
Respondent’s staff assistant and negotiating committee member.
Therefore, we find it unnecessary to pass on the relevancy of R.
Exh. 10, the verdict reached in the related criminal proceeding in-
volving Leavitt.
The Respondent excepts to the judge’s conclusion that during a
meeting with employee Richard Norris on July 6, 1989, Ervin
Etheridge, a line foreman, unlawfully created the impression of sur-
veillance of employees’ union activities. We find it unnecessary to
pass on the judge’s finding of the 8(a)(1) allegation as to Etheridge
because it is cumulative and would not affect the remedy.
1 All dates are in 1990 unless otherwise stated.
Brunswick Electric Membership Corporation and
Local Union #495, International Brotherhood
of Electrical Workers, AFL–CIO, CLC. Cases
11–CA–13446, 11–CA–13771, and 11–CA–13829
August 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 27, 1992, Administrative Law Judge
Robert G. Romano issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Brunswick Electric Mem-
bership Corporation, Shallotte, North Carolina, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
Donald R. Gattalaro, Esq. and Michael W. Jeanette, Esq., for
the General Counsel.
W. Britton Smith Jr., Esq. and Thomas E. Schroeder, Esq.
(Smith and Ruff), of Charlotte, North Carolina, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. These
consolidated cases were tried in Wilmington, North Carolina,
on June 12, 13, and 15, 1990.1 Local Union #495, Inter-
national Brotherhood of Electrical Workers, AFL–CIO, CLC
(Union or Local 495) filed the charge in Case 11–CA–13446
against Brunswick Electric Membership Corporation (Re-
spondent Employer or BEMC) on August 3, 1989; and a
complaint issued therein on September 15, 1989. Local 495
filed an original charge in Case 11–CA–13634 against
Bruswick on December 12, 1989 (amended January 30).
Consolidated complaint in the above cases issued on January
31. Local 495 filed a charge in Case 11–CA–13771 against
BEMC on March 15; and, a second consolidated complaint
in the above cases issued on April 30. Local 495 filed an
original charge in Case 11–CA–13829 on April 30 (amended
May 15). Third consolidated complaint (the complaint here-
in) issued in all the above cases on May 29. The complaint
alleges violations of Section 8(a)(1), (3), and (5) of the Act.
By answer filed June 12, Respondent Employer has denied
the commision of any unfair labor practices alleged in the
complaint.
At the opening of hearing the parties (essentially) adjusted
all 8(a)(3) and (1) allegations raised in Case 11–CA–13634
that were made subject of complaint allegation, except one
(complaint par. 8 (f)), which all parties agree is supported by
charge filed in Case 11–CA–13446, and thus remained for
litigation. Otherwise, General Counsel’s motion to sever
Case 11–CA–13634 and to withdraw its related complaint al-
legations on the basis of a settlement agreement, was grant-
ed.
The complaint as thereafter constituted, and as further
amended at hearing more specifically alleges that the Re-
spondent Employer has variously violated Section 8(a)(1) of
the Act, by conduct of several of its supervisors, on certain
days in June and July 1989; in the first and second week of
September 1989; and on February 15 and 21: by certain al-
leged interrogations of employees; and/or, by alleged threats
of loss of benefits, jobs, and other unspecified reprisals, if
the employees selected the Union as their bargaining rep-
resentative; and/or in encouraging employees to identify
other employees who supported the Union; in creating an im-
pression among its employees that Respondent Employer was
engaging in surveillance of its employees’ union, or other
protected concerted activities; in harrasing an employee be-
cause of his union activities; and, finally, by expressing to
an employee the futility of selecting the Union as a collec-
tive-bargaining representative.
The complaint additionally alleges as violative of Section
8(a)(1) and (3) that Respondent Employer: (a) on March 27
denied the request of an employee to be represented at an
interview that the employee reasonably anticipated would be
a disciplinary interview, thereupon conducted a disciplinary
interview, and issued a written warning; and (b) that on
March 5 Respondent discriminatorily suspended another em-
ployee, and later on May 10 has discharged the same em-
ployee, for discriminatory reason.
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, it is alleged that in violation of Section 8(a)(1)
and (5) of the Act Respondent has refused to bargain with
the Union in that Respondent Employer, on or about March
1, unilaterally, without any notice or bargaining with the
Union, has removed the duties of the drafting and mapping
coordinator, and, of the load management coordinator from
the certified unit.
Procedural Matters
On October 9, Respondent Employer filed a motion to re-
open hearing (dated October 5) for the limited purpose of re-
ceipt into evidence of certain attached documents
(uncontested) previously unavailable at time of hearing,
namely:
(a) a verdict rendered by the District Court of Bruns-
wick County, North Carolina, with (apparent) entry date
of September 10, on an assault charge brought by
George Smith, Jr. (on May 9) against Robert W.
Leavitt, finding Leavitt not guilty (Verdict); and,
(b) an appeals decision of the Employment Security
Commission of North Carolina, with (mailing) date of
September 17, on George Douglas Smith’s claim for
unemployment benefits (on which Smith was initially
determined not disqualified for benefits), finding Smith
was discharged for misconduct connected with his
work, and disqualified for benefits (Benefits Appeals
Decision).
An order to show cause issued on October 12, returnable
on or before November 2. Counsel for General Counsel filed
an opposition to Respondent’s motion to reopen hearing, re-
ceived October 15; and, Respondent timely filed a brief in
support of Respondent’s motion on October 31.
Thereafter (other) counsel for General Counsel filed a mo-
tion to reopen and consolidate cases, dated November 6 and
received November 9. Therein, while counsel for General
Counsel continued to oppose receipt of the above two docu-
ments, counsel for General Counsel also moved to reopen the
hearing and to consolidate a (new) complaint in Case 11–
CA–13972, which had issued on October 31. The complaint
therein (essentially) alleged that since on or about July 3, Re-
spondent Employer had refused to engage in contract nego-
tiations if the Union allowed George Douglas Smith (who is
a subject of 8(a)(3) and (1) allegations in the previously
heard consolidated cases) to attend negotiation sessions, al-
legedly in violation of Section 8(a)(5) and (1) of the Act.
On November 26 an all party conference call was prelimi-
narily held on the General Counsel’s motion during which all
parties were afforded opportunity to state their positions on
any further case consolidation, and did, including in that re-
gard most notably Charging Party Union providing an initial
notice that the alleged 8(a)(3) Smith, who was in the Na-
tional Guard; had been activated; and was to be sent to Saudi
Arabia soon (to participate in Desert Storm); and thus, as a
practical matter, would not be available for either a trial, or
negotiations. Consequently, the Charging Party Union subse-
quently requested the charge in Case 11–CA–13972 be with-
drawn, which was approved by the Regional Director, with
counsel for General Counsel meritoriously withdrawing the
motion as rendered moot.
The procedural issues then remaining open go to the issue
of receipt of the documents. Counsel for General Counsel
has not contested authenticity in opposition, but rather has
contended that the verdict is not relevant to the issues in the
instant matter, and thus should be excluded under Rule 401
of the Federal Rules of Evidence; and, under related holding
of U.S. v. Kerley, 643 F.2d 299, 301 (5th Cir. 1981), that
any arguable probative value is substantially outweighed (es-
sentially here) by a danger of unfair prejudice, and a confu-
sion of the issues, under Rule 403.
While acknowledging the basic holding of U.S. v. Kerley,
supra, Respondent nonetheless urges the reasoning of the
Court therein is inapposite to instant NLRB proceeding
where counsel for the General Counsel had used evidence of
Smith’s filing such charge to support the Union’s contention
Leavitt assaulted Smith.
Counsel for General Counsel in turn similarly concedes
Respondent’s basic urging that the Board has heretofore held
that a decision of a state agency on a matter related to those
in issue before the Board is relevant and admissible into evi-
dence, ‘‘for whatever probative value it may have.’’ Supreme
Dying Corp., 147 NLRB 1094, 1095 fn. 1 (1964), enfd. 390
F.2d 493 (1st Cir. 1965). Nonetheless counsel for General
Counsel has urged nonreceipt of a benefits appeals decision
in the instant case matters, because of a contended preju-
dicial effect of that document that greatly outweighs any pro-
bative value it may have. The argument is made on the basis:
(a) claimant Smith was not in attendance at the state hearing;
and, (b) certain of respondent’s witnesses that appeared
there, did not appear here, and thus their testimony was not
before the administrative law judge, and General Counsel did
not have an opportunity to cross-examine them.
While the Board has held that a finding of guilty on an
assault charge may be probative of who assaulted another, cf.
East Texas Motor Freight, 262 NLRB 868, 872 (1982),
nonetheless, the Respondent Employer’s motion to reopen
record for the purpose of the receipt of a verdict of not guilty
in a related criminal proceeding is denied, essentially for the
reasons stated above by counsel for the General Counsel in
his opposition stated thereto, and, particularly because of the
apparent applicability of Rule 401 and 403. E.g., confusions
may arise if evidence that may fail to persuade on required
criminal burden of proof, may yet persuade on a civil matter
by weight of evidence. The verdict, identified as Respond-
ent’s Exhibit 10, is thus rejected, and it is placed in the re-
jected exhibit file.
In contrast, as it appears clear under Board decisional
precedent that the State’s benefits appeals decision is admis-
sible, and that the General Counsel’s urging to the contrary
in this case, appears to more so to an evaluation of the extent
of the probative value to be extended to the document, e.g.,
in the light of other credible evidence of record, counsel for
the General Counsel’s opposition to receipt of that document
is overruled, cf. Supreme Dying Corp., supra; and see D. H.
Martin Petroleum Co., 280 NLRB 547 fn. 1 (1986). Accord-
ingly, the hearing is opened for that limited purpose; and the
aforesaid benefits appeals decision is received as Respond-
ent’s Exhibit 11. Certain other procedural matters are more
conveniently to be addressed later.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
363BRUNSWICK ELECTRIC CORP.
filed by the General Counsel and the Respondent Employer
on or about August 9, I make the following
FINDINGS OF FACT
I. JURISDICTION
BEMC, a North Carolina corporation, has various facilities
in North Carolina, including one at Shallotte, North Carolina,
where it is engaged in the distribution of electrical power and
energy. The complaint alleges and Respondent admits that
BEMC annually receives at its Shallotte, North Carolina fa-
cility, goods and raw materials valued in excess of $50,000
directly from points located outside the State of North Caro-
lina; and, that BEMC annually has derived gross revenues in
excess of $250,000 from BEMC’s above business operations.
I find BEMC is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. I also
find the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Employer’s business
BEMC is a rural electric cooperative, which purchases
electricity at wholesale from its power supplier, North Caro-
lina Membership Cooperation (NCMC), which has, in turn,
bought the power from some other investor-owned utility,
e.g., Carolina Power and Light (CP&L) or Duke Power
Company (Duke), etc. BEMC distributes the power at retail
to its own member consumers (only).
BEMC is a cooperative with 4000 miles of transmission
and distribution lines, serving roughly 47,000 members.
BEMC serves all of Brunswick County, as well as certain
surrounding coastal areas, and adjacent Columbus County. In
addition to maintaining its principal offices and headquarters
at Shallotte, North Carolina, BEMC has an operations facility
there. BEMC has four operating districts in all. In addition
to Shallotte, BEMC operates a small district office in Bo-
livia; and, operates separate district offices in Southport (Oak
Island), and in Whiteville, North Carolina. Each location has
its own manager, and each is run (essentially) autonomously.
a. Management
BEMC employs David James Batten as executive vice
president and general manager. Batten is BEMC’s chief oper-
ating officer. Batten reports directly to a 12-member board
of directors, who are elected by the membership for 3-year,
staggered terms. BEMC’s annual meeting is normally held in
October, but occasionally in November.
Complaint alleges and/or Respondent admits in answer
and/or at hearing, and I find the following named individuals
possess authority to hire and fire, or effectively recommend
such action, and that they are supervisors as defined in Sec-
tion 2(11) of the Act, and agents of Employer within the
meaning of Section 2(13) of the Act: Executive Vice Presi-
dent and General Manager David J. Batten; Whiteville Dis-
trict Manager Ronald Hayes; Oak Island District Manager
Don Hughes; and the respective supervisors of construction
there, Monte Herring and Martin Register.
In its Shallotte district, BEMC also employs Bobby Gore
as operations’ manager, and, under Gore, Donald Stanley.
Bobby Davis is district manager of Bolivia, a small district
without any construction crews, but with Charlie Reynolds
serving as the main operations person there.
BEMC has employed Robert Walker ‘‘Chip’’ Leavitt Jr. as
a staff assistant since September 1981. Leavitt relates he has
earned a BS–BA degree from East Carolina University, with
a double major in economics and accounting; has a back-
ground in computer programming; had almost completed an
REA management certificate; and, expected to obtain his
MBA at the University of Wilmington the following year.
Leavitt presently works in finance as a controller; works
in audits; does long-range electrical planning, rate studies;
and, he coordinates with the different district offices. As
amended at hearing, the complaint alleges, Employer admits,
and I find Staff Assistant Robert W. ‘‘Chip’’ Leavitt is a su-
pervisor and an agent of BEMC within the meaning of the
Act.
b. The main foremen issues
The parties have joined issue whether Employer’s right-of-
way foreman Floyd Cartrette, and (3) certain line foremen
namely: John Reno Coleman, Ervin Etheridge, and also
Bobby Johnson (in regard to the nonsevered allegation), are
statutory supervisors and/or agents within the meaning of the
Act. (Charlie Batts is also a line foreman at Oakville, and
he has participated in certain negotiations for Employer,
though he is not alleged in the complaint to have engaged
in any unfair labor practice.)
On the weight of credited evidence below, and the record
as a whole, I conclude and find that the Right-of-Way Fore-
man Cartrette, and Line Foremen Coleman, Etheridge, and
Johnson (and Batts), each respectively, is a supervisor within
the meaning of Section 2(11), and an agent of Respondent
Employer within the meaning of Section 2(13) of the Act.
2. The appropriate unit; and union certification
BEMC employs various linemen who construct and work
on lines; servicemen who go out and install meters, and do
other normal service-type work; and meter readers, who read
meters to account for consumed power. The complaint more
specifically alleges, and the Employer admits the following
trade and craft unit excluding meter readers and office cleri-
cal employees is an appropriate unit for collective-bargaining
purposes, namely:
All trade and craft employees including Right of Way
Operators, Groundmen, Apprentice Linemen, First Class
Linemen, Second Class Linemen, Heavy Equipment
Operator, Electronic Technicians, Warehousemen, As-
sistant Warehousemen, Servicemen, Lighting Techni-
cians, Building and Ground Technicians, Load Manage-
ment Coordinator, Coordinator of Services, Drafting
and Mapping Coordinator, Staking Engineer, Junior
Staking Engineers/Service Representatives, and Dis-
patcher at the Respondent’s Shallotte, Whiteville, Bo-
livia and Oak Island, North Carolina facilities and the
Whiteville Warehouse Coordinator; excluding Meter
Readers, office clerical employees, guards and super-
visors as defined in the Act.
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The complaint further alleges, Respondent Employer ad-
mits, and I find, that at all times since September 19, 1989,
and continuing to date, the Union has been the collective-
bargaining representative of employees in the above-de-
scribed unit appropriate for bargaining; that on September
27, 1989, the Union was certified as exclusive collective-bar-
gaining representative for employees in the above unit; and,
that by virtue of Section 9(a) of the Act, the Union has been,
and is now, the exclusive representative for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment of the above-unit employees.
B. The Preelection Evidence
1. Initial employment of ‘‘Doug’’ Smith
BEMC hired George Douglas ‘‘Doug’’ Smith on February
15, 1988, as a heavy equipment groundman on its right-of-
way crew. Smith worked under supervision of James Floyd
Cartrette. BEMC has employed Cartrette for close to 30
years.
In material times Cartrette was right-of-way line foreman,
in charge of certain heavy equipment, a clipper, and a
Kershaw bush hog. The clipper cuts flat right-of-way. The
Kershaw trims under the powerlines. Cartrette has supervised
a two-man crew that in material times included Smith and
Wendy Mark Stevens. BEMC has employed Stevens as a
heavy equipment operator for about 4 years. Cartrette gen-
erally ran the clipper, which makes better time; and Stevens
generally ran the Kershaw. As assigned heavy equipment
groundman, Smith’s job was to cut around the poles, mark
guys and telephone pedestals, whatever was in the right-of-
way, and drive ahead in the right-of-way. Though the Com-
pany tries to keep the heavy equipment operating as close to-
gether as possible, it’s impossible to keep them right to-
gether. The distance between the heavy equipment when op-
erating can be as much as 3 or 4 miles, though usually they
are within a mile or so of each other. Thus, if everything is
going smoothly, Cartrette is going to be able to observe
Smith and Stevens very little, generally, first thing in the
morning and last thing in the afternoon. Their clearing work
was of course, visible daily.
On August 31, 1988, Smith was appraised by Supervisor
Cartrette (and by Whiteville District Manager Hayes) as
making satisfactory progress in a 180-day new employee
progress report (G.C. Exh. 5). Named as supervisor therein
(I find) Cartrette therein effectively recommended that Smith
become a regular employee. Cartrette also later evaluated
Smith favorably on February 19, 1989, as a result of which
Smith received a 26-cent raise, below.
General Counsel’s Exhibit 6 is an employee self-appraisal
performance record for the period February 15, 1988, to Feb-
ruary 15, 1989. Smith therein essentially self-rated himself as
performing overall satisfactorily. (In 14 categories rated,
Smith self-appraised himself as being satisfactory in 6, as
above average in 3, and as exceptional in 5.) The employee
self-appraisal form is signed by Foreman Cartrette (as re-
ceived) on February 23, 1989. More significantly, General
Counsel’s Exhibit 7 is a related performance appraisal record
for Smith that was made out by Cartrette, and then signed
by Cartrette, Hayes, and Batten, successively. At that time
Cartrette awarded Smith no rating below satisfactory. Al-
though Cartrette reduced two of Smith’s three (self-ap-
praised) above-average ratings to satisfactory, and three of
his exceptional ratings to above-average, notably, Cartrette
agreed on three Smith self-appraised exceptional ratings and
on one of Smith’s above-average rating.
Thus, e.g., on 10, in rating Smith exceptional in his con-
cern and respect for others, Foreman Cartrette at this time
noted that Smith always takes other people(s’) feelings into
consideration, and is very effective in dealing with others.
On 14, Cartrette also rated Smith exceptional in having a
good relationship with all employees, and in dealing very ef-
fectively with members on problems that arise.
Indeed, Cartrette had at this time stated explicitly, ‘‘I feel
he leaves members with (a) good image of the cooperative
and its employees.’’ In agreeing with one above-average
(self) appraisal in regard to communicating work ideas and
work results to others, Foreman Cartrette then also signifi-
cantly observed Smith had, ‘‘no problem expressing ideas
and thoughts to others.’’ Cartrette, Hayes, and Batten signed
the appraisal; and Smith signed on February 22, 1989. On
February 23, 1989, Smith received a 26-cent raise from
$5.25 to $5.51.
Floyd Cartrette, John ‘‘Reno’’ Coleman, Ervin
Etheridge, Established as Statutory Supervisors
and Agents
It is clear and I find that at least through late February
1989, all of Employer’s management in line had evaluated
Smith as a wholly satisfactory employee. Moreover, on the
basis of Cartrette’s reviews and recommendations, as well as
other fully supportive evidence of record, I presently also
conclude and find that James F. (Floyd) Cartrette is a super-
visor as defined in Section 2(11) of the Act, and a 2(13)
agent of Respondent Employer acting on its behalf.
John ‘‘Reno’’ Coleman conducts lineman operations for
BEMC at Whiteville. Coleman similarly evaluates his crew’s
performance; and suggests (sic, in context and on this record,
effectively recommends) hiring and firing. BEMC has em-
ployed Coleman in the Whiteville office as a line foreman
for between 11 and 12 years. Additionally, in material times
Coleman participated as a member of Employer’s negotiating
committee.
Line Foreman Ervin Etheridge (and Construction Super-
visor Herring) has (have) similarly evaluated employee Rich-
ard Norris on July 13, 1989. I thus further conclude and find
on the basis of the above evidence, and the record as a
whole, that Whiteville Line Foreman John Reno Coleman
and Line Foreman Ervin Etheridge are also supervisors as
defined in Section 2(11) of the Act, and agents of Respond-
ent Employer acting on its behalf.
Finally, BEMC employs Bobby Wadell Johnson as a line
foreman. Johnson’s evaluation and recommendations on em-
ployees does not appear as well evidenced as others, nor
does the record establish as explicitly Johnson performs the
same duties as other line foremen. However, Johnson (as
well as Coleman and Batts) was (were) present as member(s)
of Employer’s negotiating committee in contract negotiations
in material time (May 9). In that regard, Johnson has the
same job classification of line foreman as do Coleman and
Etheridge who are shown of record to be supervisors within
the meaning of Section 2(11) of the Act, and as there is no
evidence warranting conclusion that Johnson’s foreman du-
365BRUNSWICK ELECTRIC CORP.
ties are any different, I thus conclude and find it is more
likely than not that Foreman Johnson is also a supervisor
within the meaning of Section 2(11) of the Act. As the
record reveals even more clearly that Johnson was Employ-
er’s agent for the certain purposes material herein, in agree-
ment with General Counsel, and contrary to Employer, I con-
clude and find that Johnson, in any event, was an agent of
Respondent Employer acting on its behalf for complaint pur-
poses.
2. The start of the union activity; and Smith’s
prominent involvement
Russell W. Hatcher is employed as business manager of
Local Union 495, IBEW. Hatcher had his initial contact with
BEMC in May 1989; and, the Union started having meetings
with employees in June. In that regard, Smith first became
involved with the IBEW in late May 1989; and, Smith
helped arranged the meetings of the employees with the
Union. Smith also distributed union authorization cards to
employees for signing; and, Smith encouraged employees to
be a part of union activities.
Indeed, Smith was openly in support of the Union from
the start. Smith informed his supervisor, Right-of-Way Fore-
man Cartrette, and Line Foreman ‘‘Reno’’ Coleman, a friend,
that Smith was for the Union; and, Smith also told Construc-
tion Supervisor Monte Herring that Smith was all out 100
percent for the Union. Indeed, in late June 1989, Smith had
occasion to go in to talk to District Manager Hayes about a
purported report of an employee’s complaint about his union
activities, discussed below. It is clear that from the start of
the union activity, Respondent was aware Smith was very ac-
tive in the Union.
3. The events of June 26 and 27, 1989
a. Coleman’s discriminatory threat of
unspecified reprisals
The complaint alleges that on June 26, 1989, Line Fore-
man John Reno Coleman has threatened employees with un-
specified reprisals for engaging in union activities.
Smith relates that on this day, a short while after 11 p.m.,
Line Foreman Reno Coleman had called Smith at Smith’s
residence. Smith’s account is that Coleman first apologized
for calling so late; and, Coleman said he had had a conversa-
tion with District Manager Hayes that day. Smith first related
that Coleman then told Smith that Hayes had told Coleman
Smith had been harassing employees about the union activity
they were conducting; and, that it was to stop immediately.
Smith later clarified, Coleman told Smith that Hayes had told
Coleman to contact Smith, and tell Smith that an employee
had complained to Hayes that Smith had been harassing that
person about joining the Union. Smith reaffirmed Coleman
said the harassment had to stop immediately.
The Employment Involvement Committee (EIC) is a local
committee set up at some (undefined) previous point in time
to resolve complaints between employees and management,
and of which Coleman had only recently been elected a
member. Thus, Hayes testified EIC is a committee that tried
to work between management and employees, with any type
of problems, whether it be a grievance or whether it be
something of this type, where Hayes as district manager, just
wanted to sit down and discuss a problem with an employee.
Coleman confirms that in June 1989 Coleman was elected to
the EIC by his fellow outside people (line foremen, linemen,
groundmen, apprentices, etc.) to represent them from the
Whiteville office. Coleman also confirmed that it was as a
member of EIC Coleman had the telephone conversation
with Smith in June 1989.
BEMC has employed Hayes as its Whiteville district of-
fice manager for approximately 5 years. (Hayes had been
previously located in Shallotte as manager of member serv-
ices, systemwide.) Hayes relates that an employee had earlier
informed Hayes that (still) another employee had told the re-
porting employee that Smith had been harassing him; and,
the employee was getting tired of it. But in the same breath
the employee had also said, ‘‘Doug’s a good boy. I think a
lot of him. I don’t want to see him get in trouble. That’s the
reason I’m telling you this, I don’t want to see Doug get in
trouble, but maybe you can talk to him.’’
Hayes relates that he thought about it a while. Hayes as-
serts that he had just wanted to discuss something with
Smith, but Hayes didn’t want it to be interpreted by Smith
as trying to reprimand him or cuff him down, so to speak.
Hayes states there were no reprimands involved.
Hayes recalled Coleman was to be off that day, but Cole-
man had come into the office sometime during the day to
transact some type of business. Hayes had not used Coleman,
or even the EIC before on any other matters. Indeed, Hayes
has revealed it was his first opportunity to use that (EIC).
In any event, Hayes recounts that he told Coleman exactly
what had been told to Hayes. However, Hayes did not use
(state) any names because Hayes viewed that as privileged
information. Hayes’ version is he asked Coleman if Coleman
would please contact Smith and let Smith know what had
been said: and, ask Smith if everything was okay or did
Smith want to discuss it in other words, just sort of leave
it up to Smith.
On cross-examination, Hayes reaffirmed that on June 26,
1989, Hayes asked Coleman because of his position with the
EIC, if Coleman would call Smith about harassment of em-
ployees. However, Hayes (seemingly) then inconsistently
with Hayes’ claim advanced on basis of Coleman’s asserted
EIC position, subsequently has asserted that as Coleman was
not Smith’s supervisor, Hayes could not tell Coleman to do
it, but could only ask; only then to acknowledge Coleman
works directly for Hayes. Hayes’ testimony on the use of
Coleman’s EIC position was strained and unpersuasive. Cole-
man otherwise confirms that Coleman’s day off was Mon-
day; and, that he happened to be in the office that day, when
Hayes saw him, and asked Coleman if he had time to come
into Hayes’ office and talk to Hayes for a minute. When
Coleman went into Hayes’ office, Hayes said, ‘‘I’d like for
you to do something for me.’’ Coleman replied that he
would if he could. Coleman’s initial recollection was some-
what ambiguous in recounting Hayes then said, ‘‘What it is,
another employee has come to me and told me that Doug has
been harassing him about the Union. I think a lot of Doug.
I do not want to see him get in trouble and I wish you’d
talk to him and tell him to sort of lay off a little bit.’’ Cole-
man said, ‘‘I’d be glad to because me and Doug was friends.
There would be no problem.’’ (Smith has admitted Coleman
is a friend of Smith; and that Coleman at the time was on
the EIC. However, Smith has stated that Coleman did not ask
that Smith ease up and not harass employees, or not get (be)
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in violation of BEMC’s harassment policy. In these respects,
I credit Smith.
Moreover, in contrast with Hayes’ account, and more con-
gruous with Smith’s recollection, on cross-examination Cole-
man then related Hayes had called Coleman into his office
and asked Coleman, if he would call Smith and tell Smith
an employee had come into his office and said that every
time that he turned around, that Smith was harassing him
about the Union; and, that Hayes had said, that it would
have to stop immediately, and, we cannot have that. Cole-
man’s testimony also clarified it was Hayes who said, ‘‘I
care enough for Doug, that I don’t want to see him get into
any trouble.’’
Coleman related that his understanding at the time was
there was a rule at BEMC about talking about the Union on
company time; adding, if not mistaken, Hayes and them had
talked to them about it. Coleman’s understanding about call-
ing Smith that night was thus (consistently) that he was help-
ing Smith out. Coleman thought Smith might be disciplined
for talking to employees on company time. If there was any
way Coleman could help Smith, where Smith would not be
disciplined, Coleman relates that he was willing to do that.
Coleman went home; and at first, it slipped his mind.
When he remembered, Coleman confirms he called Smith
that night, late, close to 11 o’clock. They talked a few min-
utes and then Coleman said, ‘‘Doug, I got something I need
to tell you.’’ Smith said, ‘‘Okay.’’ Coleman asserts that he
has always been able to talk to about anybody because, it
seems like the boys trust me and I trust them, and Doug was
very receptive; and, to Coleman, it appeared Smith was eager
to hear what Coleman had to say. So, Coleman said, ‘‘Doug,
Ronald asked me would I talk to you. He (Hayes) said that
another employee had come to him and said that you were
harassing him. Every time that they turned around, that you
were there talking to them about the Union. Ronald said that
he cares a lot for you, he don’t want to see you get into trou-
ble.’’
Coleman relates, his statement to Smith in the phone call,
made Doug mad. Smith said, ‘‘They’re just trying to keep
me from talking to anybody.’’ Coleman replied, ‘‘Doug, I
don’t really believe that he would have made it up and told
me this, to get me involved in it, to tell you this just out
of the wild blue yonder. Maybe an employee did come to
him and talk to him about it.’’ Coleman repeated that Smith
was sort of hot about it; and, Smith said a few things about
how they was just trying to keep him shut up about it. Cole-
man recounts that finally, Smith cooled down and they got
to talking about it. Coleman felt good about it, because he
got to talking to Smith and helped get Smith cooled down
about the fact. Smith then said, ‘‘Reno, I’m not going to say
anything else about it. I’m just going to let it lie like it is.’’
Coleman said, ‘‘Doug, I don’t want you to get upset at no-
body at work or anything about it, nothing like that.’’ Smith
replied, ‘‘As far as I am concerned, that’s it.’’
Coleman related, BEMC’s policy is you are not suppose
to be able to harass anybody about anything at work. Cole-
man reaffirmed Hayes had brought up the term harassment
with him. Coleman is not familiar with the BEMC’s policy
E-36, entitled ‘Work Rules,’ but in regard to number 23
which speaks to, ‘‘unlawful harassment of a fellow em-
ployee,’’ he is familiar with that. That is what he was talking
about when he and Hayes were talking about harassment.
However, Coleman then related that in the harassment rule,
his sense of unlawful is something that’s not legal, like talk-
ing union on the job.
b. Maintenance of an unlawful rule which forbids
talking about the Union during worktime
In brief the General Counsel has moved to amend the
Complaint to add as a violation Respondent Employer’s
maintenance of an unlawful rule which forbids talking about
Union, on the basis that the matter was one fully litigated
at the hearing, with no objection from the Respondent. See
American Boilers Mfg. Assn., 366 F.2d 458 (9th Cir. 1964).
On weight of evidence and precedent that is considered
below, amendment is allowed for the reason stated; and, see
and compare Corry Contract, 289 NLRB 396 fn. 3 (1988).
At first Coleman affirmed that nobody had ever told Cole-
man, nor had Coleman told his employees that you can’t talk
per se on the job. Coleman shortly added however, now, at
one time Hayes told them that we could not discuss union
activities on the job. At first, Coleman related he may have
told employees that, but added, to the best of his recollection
he didn’t. In later examination however, Coleman revealed
he had told employees that they weren’t supposed to talk
about the Union on the job. Coleman’s assertions in this area
simply vacillated.
Acknowledging an attempt was then being made at an im-
peachment of its own witness Coleman on the matter of
Coleman’s testimony indicating existence of a discriminatory
rule against talking about the Union, on Employer’s further
examination, Coleman reaffirmed that he had told his crew
members, and so-to-speak as a supervisor, if the boys were
out there on the crew, they weren’t supposed to be talking
about the Union on the job. Coleman then defined on the job
as being from say 8 o’clock til dinner and then from after
dinner til 4:30 in the evening: Coleman appearing to then
testify that Employer has no say about employees’ own time.
Moreover, Coleman has explicitly and only the more notably
testified there were not any other subjects people couldn’t
talk about while on the clock, that he knew of.
Hayes affirmed generally there is no company rule about
talking on the job. When then explicitly asked if there was
a company rule against employees talking to employees
about the Union on the job, though prefacing his answer with
statement that Hayes was not that well up on National Labor
Relations (Act) law, and with further assertion that with re-
gard to company rules, we have done our best to abide by
the National Labor Relations law as near as possible, Hayes
then also testified that Hayes had told employees that we
could not and would not discuss Union on the job because
it interfered with the usual days work; adding, what they do
at their breaktime and their lunchtime, any other time, that’s
their business. It is apparent from the above, that the testi-
mony of Coleman, far from being impeached, has been in
fact substantially corroborated by Hayes that while Employer
had no rule prohibiting its employees from talking on the
job, Employer had nonetheless discriminatorily imposed and
maintained a restriction upon employees of not talking about
the Union, whether related in terms of on the job or on work
time. To extent Hayes may have on another occasion stated
he cannot remember telling any employee not to talk about
the Union on the job, that assertion is not persuasive in light
of his other acknowledgements.
367BRUNSWICK ELECTRIC CORP.
Smith relates that when he came in that (next) morning,
thus June 27, 1989, they were scheduled for a safety meet-
ing. Smith told Coleman that he would like for Coleman and
himself to go in and talk with Hayes about the allegations
of Smith harassing other employees. They met shortly there-
after.
Coleman confirms the next morning when Coleman ar-
rived at work, Smith came up to Coleman and said, ‘‘Reno,
I’m sorry but I’ve thought about this thing all night and I
really want to talk to Ronald about it. I want some answers.’’
Coleman replied, ‘‘I can understand how you feel. Let me
go ask Ron.’’ Coleman went over and asked Hayes, ‘‘Ron,
have you got time to meet with Doug this morning. I talked
to him last night just like you asked me to do and he’s want-
ing to talk to you this morning.’’ They were getting ready
to go into a safety meeting. Hayes said, ‘‘Yes, I’ve got time
to talk to Doug, but you have to talk to me now instead of
waiting until after the safety meeting because I’ve got a
meeting that I’ve got to go to.’’ Coleman said, ‘‘I’ll go tell
Doug.’’ Coleman did, and, Smith said, ‘‘Alright, I’ll go meet
with him.’’ Coleman recounts that Coleman started to go into
the room where the safety meeting was and Smith said, ‘‘No,
hold on, Reno, you come and go with me.’’ Coleman looked
at Hayes, and Hayes said, ‘‘That’s fine.’’ They proceeded
into Hayes office to have the meeting.
Hayes had confirming recollection that Coleman came to
Hayes just prior to a scheduled safety meeting and said,
‘‘Doug wants to talk with you a few minutes.’’ However,
Hayes recollection was slightly different from Coleman in
that he has Smith accommodated with an immediate meeting.
Thus Hayes recalled he replied, ‘‘That’s fine with me. Does
he want to do it before the safety meeting or after?’’ Cole-
man said, ‘‘Well, he wants to talk to you right now.’’ Hayes
then agreed, as the safety meeting was going on fine without
Hayes. So Hayes went to his office; and, Smith and Coleman
came into his office.
Smith’s version when there is he told Hayes, ‘‘Ronald,
Reno called me last night and told me that I had been
harassing employees and it had to stop. I’d like to know who
I’ve harassed, because that has not been my intentions and
I would gladly apologize.’’ According to Smith, Hayes re-
plied, ‘‘I didn’t say that. I said that someone had come to
me and said that they really liked you and they were afraid
that you were going to get in trouble about talking Union on
Company time.’’ Smith again said, that if there were any
problems that Smith would like to apologize, and get it
straight with that person; and, that his intentions were not to
harass anyone. (Smith, in garbled, if not disjointed fashion
recalled during this conversation Hayes told Smith, Smith
didn’t know how management worked; and, management
should always take (sic) of management.)
Hayes’ account is Smith wanted to know who had told
Hayes that information; and, who was filing a grievance
against Smith. Hayes replied that there were no grievances
being filed; that it was just a matter that Hayes felt should
be brought to Smith’s attention so there wouldn’t be a griev-
ance somewhere down the road. Hayes acknowledged Smith
then asked Hayes who the employee was; and, Hayes
wouldn’t tell Smith. However, Hayes recounts that he made
it plain to Smith that the employee had come to Hayes be-
cause another employee asked them (sic) to; that it was all
because the employees liked Smith; and, that they didn’t
want to see Smith get himself in trouble by harassing em-
ployees. Hayes said he had been asked by this employee, that
the other employee had talked to, to just discuss it with
Smith; and, that’s what Hayes did, man to man, and that was
all.
In regard to (purported) harassment, Hayes explained
(seemingly) to Smith that it was (occurred) on the job and
the employee was tired of hearing it and didn’t want to hear
it anymore, but yet he liked Smith; didn’t want to see Smith
get in any trouble; and (had asked) would Hayes please talk
with Smith.
According to Hayes, there was really nothing to be done.
This was just a general discussion between District Manager
Hayes and employee Smith. However, Hayes acknowledged
that Smith at the time became very upset. Not violently
upset, just upset over the fact that Hayes would not give
Smith any names. According to Hayes, after a few minutes
of discussion, everything was fine.
Coleman confirmed Smith told Hayes that he wanted to
know more about what Coleman had to tell him the night be-
fore; and that (at least this time), Hayes told Smith that an
employee had come to him and said that another employee
had told them that they (sic) were harassing; and, that every
time they turned around, Smith was asking them about the
Union. Smith asked, ‘‘Who is it that I am suppose to be
harassing?’’ Hayes said, ‘‘I cannot tell you who it is. That
is confidential matters.’’ Coleman confirms that sort of made
Doug mad.
Coleman’s testimony also revealed that Smith was con-
cerned about his ability to engage in union activity, in Cole-
man recalling that the only time the Union was discussed was
when Smith told Hayes that he felt like they were trying to
keep him quiet about talking about the Union. Indeed, when
Smith got mad about it (Hayes not telling Smith who had
registered the complaint), Coleman recalled he said, ‘‘Well,
Ronald, if you would tell Doug who it was then Doug would
not have to come into contact with that person again so that
he wouldn’t be harassed.’’ Hayes said, ‘‘I cannot do that.’’
(I am convinced any management interest statement made by
Hayes as unclearly indicated by Smith, was more probably
made at this time.) Coleman recalls Smith then said, ‘‘Al-
right, since we have had this meeting man to man, we are
going to leave it right here.’’
c. Hayes’ alleged discriminatory threat of a loss of jobs
The Complaint alleges that on or about June 26, 1989,
Whiteville District Manager Hayes threatened employees
with a loss of jobs, if they selected the Union as their bar-
gaining representative.
(1) Smith’s account
According to Smith, Hayes also told Smith in the morning
conversation of June 27, 1989, that when the Union came in,
Hayes was going to have to lay off the last three employees
that were hired, because the Company was going to have to
go by strict job classifications. In that regard, Smith recounts
Hayes had said that he had talked to General Manager Batten
and convinced Batten to buy a tree truck; and, he had hired
these last three employees to work on the tree truck, but he
had told them in hiring that they were hired as groundmen
for the line crew; and, when the Union came in, that they
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would have to have strict job classifications; and that he
would have to lay those three men off.
There is considerable ambiguity, if not confusion of record
in regard to the background for witnesses’ statements as
made of two right-of-way crews, and related background of
certain cross-training, both generally, and, specifically in re-
gard to the alleged threat in the above June 27, 1989 con-
versation, and as bearing on a subsequent Smith requested
transfer in late February, below.
(2) Hayes’ and Coleman’s accounts
(a) Background of right-of-way crews; and, extent of
cross-training with line crews
Hayes recalled the discussion had then turned to another
subject, namely, the subject of a (yard) right-of-way crew
that they (BEMC) had put on roughly the first of the year
(1989). Hayes explained BEMC now has two types of right-
of-way crews working in Columbus County; (1) the heavy
equipment (Kershaw and clipper) crew of Cartrette, of which
Smith was a member; and, (2) a yard tree (bucket truck and
chipper) crew, which normally goes in peoples’ yards trim-
ming trees, where heavy equipment cannot maneuver around.
Hayes testified credibly that when BEMC put the certain
(new) yard tree right-of-way equipment in Columbus County,
Hayes had also received an approval to hire three employees
for Columbus County for right-of-way. However, Hayes re-
lates he had convinced General Manager Batten at the time
that it would be better if they would hire three (line crew)
groundmen instead of right-of-way people and Hayes cross-
trained them. Hayes thus felt it would be better for
Whiteville if Hayes could have three employees that Hayes
could train to do any scope of work in case of hurricanes,
or in any type of major disaster; or so that when Hayes
might not need a right-of-way crew, Hayes could use the
men somewhere else, in any area.
Hayes testified relatedly that a right-of-way person is
trained to cut right-of-way, while a groundman is trained
(more broadly) to cut right-of-way, hand (sic) transformers,
climb poles, etc. A groundman thus gets (trained in) the full
scope of BEMC’s outside operation as the groundman pro-
gresses through an apprentice lineman. Hayes asserts, in con-
trast, that a right-of-way crew cut right-of-way, period.
Coleman confirmed that they had one (yard) right-of-way
crew at Whiteville at this time (which he distinguished from
the regular heavy equipment right-of-way crew of Cartrette,
Smith and Stevens). Coleman relates that this (yard) right-of-
way crew did anything, whether it was yard right-of-way
work or clearing new right-of-way for construction jobs.
Thus, in addition to the yard trim of trees, Coleman relates
that when the stacking engineer got a job and they had to
build a line right down beside the road, or right through the
edge of the woods or something, that (yard) crew also goes
in there and cuts trees, trims up the overhang, or anything
like that.
Coleman testimony also revealed the makeup of this yard
crew has changed from time to time, due to cross-training.
Coleman has explicitly confirmed the last three men who
were hired were hired as groundmen for the line crews; and,
(essentially) that when the tree trimming bucket truck and
chipper was bought, they transferred three men over to that
crew. However, Coleman recounts that they would work on
it a while, and then others had alternated coming on that
crew. Coleman recounted generally that all their crews are
like floaters, as they are suppose to be able to work any-
where on any crew, whether it is overhead or underground.
However, Coleman’s testimony has also made clear that
the cross-training that goes on is between the other (yard)
right-of-way crew (of hired groundmen) and the underground
and overhead line crews. Coleman confirmed people did not
want to cross-train into the (yard) right-of-way crew. As far
as Coleman knew, they have not had anybody to cross-train
over into Smith’s heavy equipment crew, to be discussed fur-
ther below. Coleman testified flatly that people do not nor-
mally rotate on heavy equipment crew. (Though there is no
rotation on the heavy equipment crew, BEMC has other peo-
ple that if something happened and they needed them to go
there, they could put them on there.)
The stated lack of cross-training on the heavy equipment
crew is to be distinguished from temporary use of that crew
elsewhere. E.g., if the heavy equipment is down on that
crew, i.e., if they’re waiting on a part of something to come
in. Coleman recounts they’d (the heavy equipment crew) al-
ways come out there and help us (line crew) work, if they
didn’t take a day off.
In regard to cross-training, Hayes has testified generally
that it had worried him that they could have problems, if he
had a groundman that cannot learn these other jobs. Hayes
then recounted that what worried him about that was that
someone could get hurt; and, Hayes explained further, that
when he says ‘‘hurt,’’ he doesn’t mean fired or laid off, he
means killed, dead; as they regularly work with anywhere
from 240 to 69,000 volts everyday; or, in a few instances
work with 100 to 1000 (volt) lines.
According to Hayes, the problem at this time was a lot of
the employees did not like to work on the (yard) right-of-
way crew. The work of this right-of-way crew is hot, nasty,
dirty work. Not that other work isn’t, but right-of-way is just
a class of work a lot of employees didn’t want to do; and
Hayes at this time was getting some flak from it. Indeed,
Hayes recalled that Smith had told Hayes that some of them
had talked to Smith, and that they just didn’t like the way
Hayes was rotating the crews around for training purposes
and, that some of them just weren’t going to work on the
right-of-way crew. Hayes thus asserts that on this occasion
Smith had actually objected to the very subject of cross-train-
ing.
Be that presently as it may, Coleman confirmed that it was
said that none of the boys liked to work on the (yard) right-
of-way crew. (Coleman recalled BEMC at the time would
put them on the yard crew for 3 weeks to a month and then
they came off.) Coleman also recalled specifically that Smith
had said that nobody liked this cross-training; and, that
when they got on a crew, they wanted to stay on that crew
all the time.
Coleman also confirmed Hayes that they had then talked
about the right-of-way crews (sic) switching men from one
crew to another and cross-training; and, that they talked
about how important it was that each man at Whiteville dis-
trict be able to do anything that came along, whether it was
underground work or overhead work; and, that if a man on
the (yard) right-of-way truck could do underground, overhead
and work on the right-of-way crew, then you had a man that
could go anywhere, and not have to worry about it.
369BRUNSWICK ELECTRIC CORP.
Hayes recounts that he then explained to Smith why they
had to do that. Hayes acknowledged that in doing so, Hayes
did say to Smith that there was a good chance that they
could lose the three employees if they did not cross-train
them and work with them, as they had hired three
groundmen, which are line crew employees, not right-of-way
employees.
Hayes has specifically denied that he told Smith that
somebody, or, that the three employees would be laid off if
the Union came in. Smith centrally asserts Hayes had talked
about somebody having to be laid off. In contrast, Hayes ex-
plicitly denied that he said, and Hayes further asserts that he
did not intend to infer (sic, in context imply) that the three
(groundmen) employees would be fired, laid off, or anything.
Hayes asserts that what he said was, that Whiteville could
lose the three employees; but not that they’d be fired, laid
off, or anything.
Smith did not recall Hayes explain the need to cross-train
employees and have folks rotate onto the (yard) right-of-way
crew, and vice versa. Indeed, at one point Smith did not re-
call any discussion about cross-training. Nor did he recall
Hayes tell Smith the reason there had to be rotation was so
everybody would have some understanding of the right-of-
way work. Despite Smith’s nonrecall of a discussion of
cross-training, I credit the mutually consistent recollections
of Hayes and Coleman that cross-training was discussed in
the above manner.
Coleman had supportive, if initially somewhat disjointed
recollection that Hayes said, that if it wasn’t for the right-
of-way crew, the positions of the last three men that they had
hired (or possibly the three youngest) would be lost. How-
ever, on other occasions Coleman essentially corroborated
Hayes that Hayes told Smith and Coleman, that the three
youngest men that they had were hired for a right-of-way,
and that if they did not run this right-of-way crew and use
them, they could lose those three positions; and, that Hayes
explained that by ‘‘lose’’ what Hayes could see happening
was those groundmen, if lost from the (yard) right-of-way
crew, then they probably would have to be transferred to
some other district where they were needed as groundmen,
not as right-of-way people.
Although Coleman didn’t recall hearing anything said
about strict job classifications, Hayes acknowledged that he
may have made a statement, he hoped it didn’t come to
where they had strict classifications because of the type work
they do. Everyone needed to be at least vaguely aware of
what the next person was doing because you rely on (one)
another so much. Hayes added that if it (seemingly, the sub-
ject of strict classifications) was stated, that’s the way it was
stated.
Though at least on one occasion testifying he didn’t recall
how the subject of layoff came up, and his testimony appear-
ing on still other occasion confusing as to (changing) identity
of three men on the yard right-of-way crew to be affected
in the loss, Coleman has explicitly denied hearing Hayes say
that if the Union came in, that they would be laid off; or
anything like that. However, Coleman didn’t recall Hayes
say anything about three men working in a particular area
after the Union came in, or where the jobs or people would
go.
Smith confirmed the meeting ended on friendly terms. No-
tably compatible with a nonthreat of loss of jobs, Smith re-
lated that he felt harassed (only) because Hayes would not
tell Smith who the employee(s) was (were) that had com-
plained of being harassed, because Smith knew that he had
not harassed anyone.
4. Batten’s alleged coercive letter
The complaint alleges that on July 11, 1989, General Man-
ager Batten unlawfully encouraged employees to identify
other employees who supported the Union.
In support of this allegation, the General Counsel relies on
General Counsel’s Exhibit 4, a letter dated July 11, 1989,
written by General Manager Batten, and mailed out to all
Brunswick employees. In its pertinent part, the letter states:
I do want you to know and understand another very
important fact. Nobody here is going to be threatened
or coerced either way—pro or con. If you are being
subjected to Union pressure, please advise your super-
visor or come in and let me know personally. We will
get it stopped. Employees here who support the Union
are not going to receive any special preference and
compliments, rewards and discipline will continue to be
exercised as they have in the past. Even though we will
be involved in this Union organizing campaign, our
member/consumers deserve the best we can give them,
and nothing will get in the way of that objective.
Please let me know if you have any questions.
5. Alleged Etheridge and Herring unlawful conduct
The complaint alleges that on or about July 6, 1989, Line
Foreman Ervin Etheridge and Construction Supervisor
Monte Herring created the impression among employees that
Employer was engaging in surveillance of their union activi-
ties.
BEMC had employed Richard Norris as a first-class line-
man for 6 years in July. Foreman Etheridge filled out Norris’
evaluation; and, Etheridge attended Norris’ work perform-
ance evaluation on July 6, 1989, along with Monte Herring,
construction supervisor. Norris relates at this time his wife
was pregnant; and, during the evaluation, Herring reminded
Norris that he was getting ready to have a family; that Norris
better think about it; that Norris was being watched; that they
were watching every move he made; that he had been seen
at meetings and (sic) union activity.
When asked for words (said), Norris said he had written
them down in an affidavit, which was not introduced. (Al-
most a year later, on June 4, Norris gave an affidavit to an
NLRB agent. Norris talked with the agent by phone. The af-
fidavit came in the mail; and, Norris signed it before a no-
tary, a friend of his mother-in-law. After eliciting the fore-
going, Employer didn’t pursue introduction of the affidavit.
I conclude that Norris’ account was not at substantive vari-
ance with his affidavit.)
On cross-examination, Norris (seemingly) related that the
evaluation by Etheridge and Herring was on 7/13/89. More
significantly, Norris asserts it was above average, and he
viewed it as a very exceptional evaluation. Norris received
eight satisfactory ratings, four above average, and two excep-
tional.
Norris recalled that Herring said something about a fore-
man; but, Norris could not say Herring told him on that oc-
casion that the Company was watching him for a foreman’s
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
position. (However, way before this, Norris was aware that
they were looking at him for a foreman’s position.) During
this evaluation, Herring said that they knew what he was
doing. Norris was being watched very carefully. Norris sum-
marized the way he (Herring) was expressing it, they’re not
only watching him at work, they know what is going on out-
side of his job.
Though Norris was aware that the union activity had
cranked up at the time, Norris was not (I find) public with
it (his union activity). Though Herring told Norris that Norris
had been seen at meetings, Herring would not tell Norris
who saw him; nor did Herring tell Norris where Norris had
been seen at a union meeting. However, Norris asserts he
found that out later.
On redirect, Norris related that it was Hayes who later told
Norris that Leavitt had seen them at the first meeting. Norris
relates he is not scared to talk to Hayes; and, Norris recounts
that on a later occasion Hayes let it slip. By relating its oc-
currence to other incidents, Norris effectively placed Hayes’
statement on Leavitt’s observance of Norris’ attendance at a
union meeting, as probably occurring sometime in January
or February.
Hayes knew that Norris was active in the Union, but does
not clearly establish when he first knew it. Hayes asserts that
he made it plain with all his employees that Hayes had no
hard feelings toward the Union, whatsoever; that it was their
decision; and, they’re grown men. Hayes has otherwise testi-
fied that he never at any time told Norris that Hayes or
Leavette were spying on him.
On the other hand, Hayes acknowledged that it is possible
that Hayes told Norris that Hayes knew Norris was attending
union meetings. Hayes then did not recall the circumstance
under which Hayes might have told Norris that Hayes knew
Norris was attending a union meeting. While Hayes had no
recollection whatsoever of ever telling Norris that Leavette
knew that Norris was attending union meetings, Hayes did
not explicitly deny he made the statement attributed to him
by Norris.
Only Herring testified to this incident. BEMC has em-
ployed Monte Herring for over 17 years, and in material
times as the construction supervisor at Whiteville district.
Herring oversees the evaluation of employees. On July 6
Line Foreman Erwin Etheridge conducted an evaluation of
Norris. Herring sat in on it. Herring confirmed Norris re-
ceived an above-average evaluation.
After Etheridge did his evaluation, Herring spoke to Nor-
ris. Herring explained that in previous years, Norris had had
a little problem with his evaluations, but asserts Norris had
done well this year in overcoming some of those problems
of the past. Herring also testified that Norris is a hard work-
ing employee. The little problems in previous evaluations,
were, instead of leading people, Norris was trying to drive
them. Herring had men come in and talk to him about this.
If Norris became a line foreman he’d have to learn to lead
instead of drive. Norris had overcome a lot of these problems
by the July 6, 1989 evaluation. In the meeting, Herring told
Norris how good a job he had done.
Herring’s version of the conversation is that in roundabout
words Herring told Norris that he was proud of what Norris
had done and that he realized that Norris and his wife were
fixing to have a child and said that there would be more re-
sponsibilities for Norris in Brunswick Electric and as a fa-
ther; and that Herring wanted Norris to be able to accept it.
Herring told Norris that as he was a linemen, if he pro-
gressed as well as he had, his next step would be a line fore-
man’s position. Herring told Norris not to be so naive as to
think that the Company didn’t know what was going on. On
cross-examination, when asked directly, Herring then ac-
knowledged that they were talking about the Union; and, that
Herring meant by the statement, that the Company knew
what was going on with the union activity. In contrast, on
direct examination, Herring denied he told Norris that he was
being watched; or, that he had been seen at union meetings;
and testified that he did not hear Etheridge say either state-
ment. Herring asserts none of his superiors had ever told
Herring that union activity would effect anyone’s promotion.
6. Hayes alleged unlawful interrogation, and threat of
loss of benefits on July 27
The complaint alleges that on July 27, 1989, that District
Manager Hayes interrogated employees concerning their
union activities; and, that on July 27, 1989, Hayes threatened
employees with a loss of benefits if they selected the Union
as their bargaining representative.
Norris also asserts generally he had (other) conversations
with Hayes, around September 1, 1989, somewhere along
there. Norris talked to Hayes on several occasions. On one
such occasion, Hayes came up and said that we were going
to have to give up something to gain something.
Hayes did not recall a specific conversation with employ-
ees in July, but acknowledged that he had several times had
conversations with employees about bargaining and negotiat-
ing. The only thing that Hayes felt like that he could say and
stay legal was to define the term ‘‘bargaining’’ for them.
Thus Hayes testified Hayes would explain that bargaining, to
him, meant exactly what it does anywhere else, you start one
side here and one side here, and you try to meet in the mid-
dle. By meeting in the middle somebody has got to give and
somebody has got to take. On cross-examination, Norris con-
firmed they were talking about the process of collective bar-
gaining, or negotiations; and, usually, somebody has to give
up something to get something else.
When inquiry was then made as to other conversations,
Norris testified only generally and essentially that most of
the times they were about what was happening; that Hayes
knew what was going on; who was involved in meetings;
and who was behind it all. On cross-examination Norris ac-
knowledged that was common knowledge at the time; as by
then they had already sent the (union) paper into David (Bat-
ten).
In brief General Counsel has moved to amend the com-
plaint to delete the allegations of interrogation and threat of
loss of benefit by Hayes on July 27, 1989. In light of only
the above evidence appearing supportive, and the same being
insufficient to sustain the allegations, the amendment is al-
lowed.
7. Alleged unlawful conduct of Foreman Johnson in
September 1989
The complaint alleges that in the first and second week of
September 1989, Line Foreman Johnson, unlawfully encour-
371BRUNSWICK ELECTRIC CORP.
aged its employees to identify other employees who sup-
ported the Union.
The parties stipulated Foreman Johnson read General
Counsel’s Exhibit 3 question and answer 10 to his employees
during first and second week of September 1989, as follows:
Question No. 10: How can I stop some guys from
harassing me about the Union?
Answer: Tell them to leave you alone and that you
will let them know if you have any questions or need
any information. If that doesn’t stop it report it to your
supervisor. Try to remember that some employees have
really jumped on the union thing temporarily, but they
will get over it. Try not to let this union deal interfere
with your long-term friendships. We can and will over-
come this temporary disruption.
Analysis of the Preelection Allegations
By calling Smith at home on June 26 after 11 p.m., and
by telling Smith that in a conversation with District Manager
Hayes held that morning, Hayes had told Coleman to call
Smith and tell Smith that an employee had complained to
Hayes that Smith had been harassing the employee about
joining the Union, and, the harassment had to stop imme-
diately, I conclude and find that thereby the Respondent Em-
ployer, in substance and effect, has threatened its employees
with unspecified reprisals for engaging in union activity, as
alleged in the complaint.
Moreover, I further conclude and find under all attendant
circumstances, including, e.g., despite the mutually acknowl-
edged Coleman friendship with Smith; and, even if Cole-
man’s remarks to Smith were accompanied by one or the
other statement essentially that Hayes and/or the employee
thought a lot of Smith, either of which on this record appears
as likely, that Foreman Coleman’s statements nonetheless
had tended to interfere with, restrain, and coerce Smith in the
exercise of his Section 7 rights, cf. Trover Clinic, 280 NLRB
6 fn. 1 (1986). (That effect is only the more so rendered like-
ly if the statement had included, ‘‘and did not want to see
Smith get in trouble,’’ as would also then appear the more
likely.) Accordingly, I find that by Foreman John ‘‘Reno’’
Coleman’s statements made on June 26 that effectively
threatened employee George ‘‘Doug’’ Smith with unspecified
reprisals for engaging in union activity, the Respondent Em-
ployer has thereby violated Section 8(a)(1) of the Act.
The oral maintenance (if not promulgation) of a singularly
encompassing, and thus discriminatory rule (or practice) for-
bidding talking about the Union (whether expressed as on the
job, or on worktime) was clearly related to the above com-
plaint allegation of Coleman’s threat of unspecified reprisals
for Smith’s engagement in union activities. Such a relation-
ship is clearly to be observed from Coleman having urged
his call to Smith as intended as an aid to Smith’s future
avoidance of discipline, if Coleman could effectively do so;
and, as Coleman’s motivation in speaking to Smith on Hayes
account. It was a matter fully litigated herein, Redd-I, Inc.,
290 NLRB 1115, 1118 (1988). A rule or practice that is es-
tablished as prohibiting only talk about the Union and that
is unpersuasively connected in origin to maintenance of pro-
duction and discipline, evidences the clearest form of dis-
criminatory reason for existence, and it is a violation of Sec-
tion 8(a)(1), cf. Our Way, Inc., 268 NLRB 394, 395 (1983);
Harry M. Stevens Services, 277 NLRB 276 (1985).
Contrary to urging of General Counsel, and in essential
agreement with Employer, I am not persuaded by Smith
recollections that Hayes threatened on June 26 (or 27) that
if the Union came in, the Company would impose strict clas-
sifications and would have to layoff the last three men hired
on the yard right-of-way crew. Rather I am persuaded on the
weight of what appears as more consistent and credible evi-
dence, in the background of the comparatively new yard
right-of-way crew operation and related cross-training, that in
the discussion of crew cross-training in which Smith had in-
formed Hayes that the employees did not want to move
about from crew to crew in cross-training, Hayes had replied
(I find) that strict classifications was something that Hayes
would hate to see happen.
The more credible evidence would thus appear to indicate
that it would be here the Union seeking strict classifications
as a condition of employment, especially in the light of
Smith’s report of employee deep distaste for the proscribed
employee movement from crew to crew in cross-training.
Moreover, in (consistently) saying he would hate to see it
(strict classifications), Hayes also reasonably explained factu-
ally why, and in what is (undisputed) fact, namely that the
men on the yard right-of-way crew had been actually hired
as groundmen.
Hayes statement of concern is reasonably evaluated in that
background, and thus was conditioned (at best) impliedly on
an agreement of Employer with a union demand for strict
classifications. It is only reasonable in those circumstances,
that Hayes has said, if there could not be the continued
cross-training, there was then a good chance they
(Whiteville) would lose the yard crew operation as the three
men had been hired as line crew groundmen who would
probably be used elsewhere where needed (if required to
work strictly within their classification) as line crew
groundmen. I credit Hayes testimony that he did not say, nor
I find, under all attendant circumstances, did he reasonably
seek to imply the three men would lose their jobs. Accord-
ingly, I shall recommend that this complaint allegation be
dismissed.
Etheridge did not testify; and, thus he does not corroborate
Herring, whose account of not creating an impression of sur-
veillance I find is less convincing than Norris. In contrast
Norris received more support from Hayes than did Herring.
Since at the time Norris was evaluated on July 6, 1989, Nor-
ris was not as yet open in his involvement with the Union,
it was reasonable on the occasion of Etheridge’s review and
Herring’s comments thereat of union activity awareness in
general, and of Norris in particular, for employee Norris to
believe that his attendance at union meetings, and his in-
volvement in other union activities were under surveillance
away from the job. I find Respondent Employer thereby cre-
ated among its employees an impression that their union ac-
tivities were under surveillance in violation of Section
8(a)(1) of the Act.
In that regard, and contrary to the related urging of Re-
spondent that because Etheridge did not actually make any
of the statements that created the unlawful impression of Em-
ployer surveillance, which were all attributed to Herring, the
allegation as to Etheridge should be dismissed, I conclude
the allegation as to Etheridge should not be dismissed.
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Etheridge is not to be absolved of any part in such mis-
conduct where it is he who supervises Norris directly; and,
Etheridge is present and remains silent when Herring made
the statements that have served to create the unlawful im-
pression of surveillance; and, there is no evidence of em-
ployer subsequent repudiation, or of Etheridge’s part in an
attempt therein.
As employees were being urged to report not just threats,
but subjectively perceived union pressures in Batten’s letter
of July 11, 1989, the Respondent’s request to report ‘‘Union
pressures’’ could be interpreted by some employees to be
broad enough to cover persistent, but lawful attempts by
union supporters to persuade employees to sign union cards
during their nonworking time and off the Respondent’s
premises, which would therefore tend to restrain a union pro-
ponent from attempting to persuade any employee through
fear that his conduct would be reported to management, in
violation of Section 8(a)(1), Arcata Graphics, 304 NLRB
541 fn. 6 (1991), and see cases cited therein. (It would ap-
pear open whether Member Oviatt, who therein held a dif-
ferent view on directed employee report of ‘‘abusive treat-
ment,’’ would not nonetheless view the instant directed em-
ployee report of more general ‘‘Union pressures’’ as con-
stituting an otherwise unlawful request made to employees to
report on protected activities of coworkers.) Accordingly, I
conclude and find that on July 11, 1989, General Manager
Batten unlawfully encouraged employees to identify other
employees who supported the Union as alleged in the com-
plaint, in violation of Section 8(a)(1) of the Act.
Appearing to suffer the same deficiency in interfering with
a union proponent’s exercise of protected Section 7 rights is
Johnson’s instruction read to employees during the first and
second week of September 1989, on how to stop employee
‘‘harassment,’’ namely to, ‘‘Tell them to leave you alone and
that you will let them know if you have any questions or
need any information. If that doesn’t stop it report it to your
supervisor.’’ I conclude and find that by the above conduct
of its Line Foreman Johnson in the first and second week of
September 1989, Respondent Employer has unlawfully en-
couraged its employees to identify other employees who sup-
ported the Union in violation of Section 8(a)(1) of the Act,
as alleged in the complaint.
C. Postelection Evidence
Smith’s Local union advocacy and prominence in leader-
ship became only the more apparent after the election on
September 19, 1989, in which Local 495 was successful in
being designated by the majority of the unit employees as
their collective-bargaining representative for purposes of col-
lective bargaining. Thus at that time Smith was promptly
elected chairman of the bargaining unit; and, as such, Smith
thereafter has served as the chairman of the negotiating com-
mittee. (The unit chairman is a position elected by employees
that work in the BEMC bargaining unit and are members of
the local union. In that regard, there are approximately 58
employees in the BEMC bargaining unit, and 42 are mem-
bers.) As elected unit chairman, Smith appointed all union
committees; and, it was his duty as unit chairman to also sit
in on the negotiating committee. (IBEW constitution and by-
laws of the local union gave Smith such authority.)
1. The negotiations background
a. In general
The parties have stipulated that on October 13, 1989, the
Union requested bargaining, and on November 27, 1989, the
parties commenced bargaining. The parties had not reached
a contract as of hearing. There is no bad-faith, or surface-
bargaining allegation in the complaint.
Employer has offered limited evidence on the meetings to
show how tension was building up and everybody had to and
did tolerate verbal abuses, but with urging in contrast that
nobody has to tolerate physical abuses that Employer claims
developed therefrom. The Employer’s contention is Smith
was continually just throwing verbal assaults at management
representatives; and, the amount of such verbal assaults had
mounted and mounted. More specifically, although conceding
there was never physical violence before May 9, Employer
argues the supervisors of the Company were subjected to
cursing and threats of all sorts as they were trying to leave
on January 4; and Employer further argues that (such) con-
duct continued and finally erupted into Smith’s physical vio-
lence with Leavitt on May 9. Over General Counsel’s objec-
tion (made only on the basis that there was no surface-bar-
gaining charge), Respondent was allowed to introduce evi-
dence thereon, but solely for contended bearing on Smith’s
conduct and his attitude as Smith exhibited it during the
course of the negotiations, and, especially, as directed to
Leavitt.
Following the election in September in which the Union
was successful, Leavitt was put on the Company’s negotiat-
ing committee to serve with Attorney W. Britton Smith Jr.
(who was to lead the negotiations for the Company) along
with service of other (varying) company representatives, to
negotiate the first contract with the IBEW. (In interest of
brevity and clarity, George ‘‘Doug’’ Smith is referred to sim-
ply as Smith, and Company Attorney W. Britton Smith Jr.
as simply Attorney Smith.)
In addition to Smith, the regulars appearing for the
Union’s negotiating committee were: International Represent-
ative Gene Ruff (who was to lead the negotiations for
Union); Local 495’s business manager Hatcher; and employ-
ees Norris and Ford. Employees Merril Wilson and Jay Lynn
have alternated on the committee; and at one point employee
Mark Huick came. (Observers have also been present, on one
occasion as many as 14–15 appearing for Union in all.)
In material times there had been nine negotiation sessions,
of which, Leavitt attended all but two meetings. Leavitt
missed the preliminary one, attended by Attorney Smith,
Frank McGougan (corporate attorney at the time), and Tom
Ruff, another company attorney from Attorney Smith’s law
firm. There is some ambiguity whether the Leavitt described
preliminary meeting was the first meeting held on November
27, 1989. The second meeting Leavitt missed was on March
9.
b. November 27, 1989
Though Leavitt at one point appeared to state that the
Company had proposed a 12-1/2-percent increase in the No-
vember meeting that he did not attend, Leavitt later clarified
he knew only a money offer was made, not the percentage.
Hatcher also had not recalled if in the very first meeting on
373BRUNSWICK ELECTRIC CORP.
November 27, 1989, the Company offered to place into ef-
fect, immediately, a 12-percent increase, if the Union would
waive any further economic demands. Hatcher stated, there
have been so many offers and refusals and counteroffers that
he didn’t recall that specific one. Hatcher also did not recall
Smith at this meeting saying that the unit employees were
going to be very upset if they couldn’t walk out of the meet-
ing with a wage increase on the first negotiating day. Rather,
Hatcher thought the Union had already talked to Smith and
the Union’s negotiating committee, and told them that a
wage package would probably be the last thing that they
would negotiate, and not to expect an increase on the first
day.
In general, I credit Hatcher’s account of the first meeting
of November 27, as not encompassing any Smith statement
of disappointment if they did not negotiate a wage increase
that day; and, that union representatives had advised Smith
and other members of the Union’s committee not to expect
it. Moreover, I credit Leavitt’s corrected testimony (only
generally) that Employer initially proposed a wage increase
if the Union would forego other economic demands.
Hatcher recalled (I find relatedly) Smith and others at one
time getting boisterous and saying, it’s going to take a whole
lot more, and, the Company’s going to have to pay a whole
lot more than they ever thought they were going to pay,
though Hatcher didn’t recall the particular meeting at which
Smith made the comment. Smith recalled Employer in fact
had later offered a bigger wage proposal, and it also was not
accepted. Leavitt otherwise recalled generally (at various
meetings) that Smith had said variously that wages were not
fair; they were not enough; that the wages were low; and
wages needed to be changed. Indeed, Leavitt acknowledged
at a later meeting they (the Company) proposed an additional
2 percent. Leavitt asserts he did not say Smith was disruptive
in making comments about wages. Leavitt complains that
Smith made accusations and threats; and, that Smith called
(people) names.
c. December 21, 1989
Leavitt and Oakland District Manager Hughes were
present as the company representatives at the meeting of De-
cember 21, 1989. Leavitt recalled that at this second meeting,
Smith stood up and talked to McGougan, corporate attorney,
and made reference to some action that had taken place at
a North Carolina boys’ home. As Leavitt recalled it, Smith
suggested that a committee of the boys’ home employees had
gotten together and formulated an ouster of the director
there; and, Smith then said, that’s what he was planning to
do, and that Hughes and Leavitt would be fired.
Hatcher did recall a discussion about the North Carolina
boys’ home in the meeting on December 21, 1989, but not
any conversation about how the employees there had gotten
rid of the management at the boys’ home. Hatcher did not
remember (but did not deny) Smith look over at Leavitt and
Hughes and tell them he would see them fired just like the
boys’ home situation. In this instance I credit Leavitt’s above
specific recollection.
d. January 4, the Ramada Inn
Leavitt and Hughes attended the next meeting held on Jan-
uary 4 at the Ramada Inn, Wilmington. It was the one and
only night negotiation meeting held. Leavitt recalled that as
they were going into the meeting, Smith said he wondered
why Attorney Smith wasn’t in Miami, defending Noreiga.
(Smith had earlier recounted the remark as occurring at a
more cordial time, and in jest, with Smith first stating he was
surprised to see Attorney Smith there, and upon Attorney
Smith’s inquiry why, Smith said, ‘‘Well, I thought you’d be
in Miami representing Mr. Noriega.’’) Leavitt recalled when
the meeting got heated in the end, that at that point Smith
looked at Attorney Smith and then said to him, ‘‘were you
born an asshole, or do you just work on it.’’ (Smith earlier
had candidly corrected a related inquiry on cross-examina-
tion, with counsel then statement of agreement, that Smith
had said, ‘‘Were you born an asshole, Britton, or have you
just worked at (it) all your life.’’
Hughes related when the meeting had ended, and Hughes
was getting his books up off the table and as they were turn-
ing to leave to go to the door, Hughes heard the comment,
‘‘That’s all right, you all go ahead and leave, you assholes;’’
and, Hughes asserted that it was Smith he had heard say it.
Smith didn’t recall calling Hughes (or Leavitt) either
‘‘assholes’’ or ‘‘shits.’’
Norris wouldn’t say (agree) there was a good deal of cuss-
ing of Employer’s supervisors at the end of this meeting.
Norris remembered he had talked about the supervisors; and,
he didn’t use any profanity towards them. While Norris has
stated (only) that he didn’t remember any of the supervisors
being called profane names that night, Norris testified that he
was sure he didn’t remember somebody call Hughes an
asshole.
It is notable then that Leavitt recalled that at the end of
the meeting employee Wilson had addressed a question to
Hughes, and finished the question by calling Hughes an ‘‘ass
or shit or something’’; and, that at that point the Company
had gathered its material and headed for the door. Leavitt re-
called additionally only generally that as they were exiting,
they were again called names. In light of Smith’s candid ad-
missions above (and elsewhere), and Wilson shown as more
likely source of the Hughes recalled statement, in this in-
stance I credit Smith that he did not call Hughes an ‘‘asshole
or a shit.’’
Leavitt otherwise acknowledged on cross-examination that
this meeting started late; and, it wasn’t the Union’s fault.
Leavitt explained the meeting started late because the attor-
neys’ flight in from Charlotte was delayed and didn’t get in
until almost 6 p.m.; and they had to first go pick them up,
and, then come on in to the Ramada. Leavitt relates (on ar-
rival) they had briefly talked about some issues; and, then,
as usual, they went over highlights of the Company’s coun-
terproposals. The Union asked for a caucus and the Company
walked out, at roughly 7:30 p.m. (Hatcher recalled that they
were supposed to meet at 7 p.m., and, otherwise confirmed
that the Company was late. Hatcher also recalled that the
Union didn’t go into a caucus at 7:30 p.m., but at 7:45 p.m.,
though Hatcher acknowledged that they were still in caucus
at 9 p.m.)
Leavitt recalled that after waiting an hour and a half, the
Company came back and said that it appeared that the Union
needed more time (confirmed by Norris and others) to review
the Employer’s counterproposals; and, suggested they sched-
ule the next meeting. (Norris confirmed not much was ac-
complished that night; and, that the Company wanted to re-
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
schedule to another date.) In confirming, Hughes states they
could see the Union hadn’t come to a conclusion or agree-
ment on any of the things they were discussing. At that time,
and notwithstanding any assertions of Hughes (or Leavitt) to
the contrary (I find) the Company had decided that it was
time for them to leave.
Thus, Hughes has acknowledged on other occasions, we
(the Company) saw that we weren’t getting anywhere; and,
we made the decision, yes, that it was time for us to leave.
It was at this juncture that the above-described employee
boisterousness and profanity had occurred. Although Hughes
had denied that the context in which (assertedly) Smith had
made the above statement, ‘‘Well, go ahead leave, you
assholes,’’ was the Company (after having arrived at the
meeting late) ending and leaving the meeting before the
Union wanted them to, even if that remark occurred, I find
it occurred in that context. Moreover, that circumstance was
clearly not the only point under heated discussion.
Leavitt credibly related a discussion had erupted about
why the Employer wouldn’t pay the employees. Leavitt re-
calls Ruff started the discussion, and then Norris, Wilson,
and Smith had something to say about why won’t you pay
these people. Everybody was getting their two-cents worth
in. Then, the issue changed; and, everyone was talking about
why couldn’t we have these (meetings) at night; why
couldn’t we have them on the co-op property or premises;
as well as why couldn’t the employees be paid; and, it got
rather heated. Norris confirmed the whole room was a little
boisterous; and, to a certain point it got a little out of hand.
Hatcher affirmed when they came back in and tried to re-
schedule a meeting, that there was a discussion about the
employees not being paid for negotiating. The union commit-
tee employees wanted to be paid for the time in negotiating;
and, BEMC’s position was it was their and the Union’s time;
and, the Union paid.
Smith recalled it as at this meeting that in discussing a
proposal at the end of the meeting, someone from the union
side had said that the Employer had done something for the
clericals; and, that Attorney Smith responded in a rage, they
were not negotiating for the clericals. Smith acknowledged
that he had said, ‘‘Well, that is fine, we’ll just organize the
clericals and bring them into hear [sic, in context the] con-
tract.’’ Seemingly in those circumstances, Smith relates he
was drawn out to say, ‘‘We will not meet with you again
until we organize the clerical workers, if it takes three
months.’’ Smith did not accede to company suggestion he
was thinking of another meeting.
However, Norris did not recall Smith at this meeeting re-
fusing to even talk about rescheduling a meeting until Smith
could get the clerical employees organized. Norris acknowl-
edged he had discussed that subject with Attorney Smith, but
Norris didn’t recall it as coming up that night. Norris other-
wise affirmed at the tail end of this meeting Norris had a few
words to say (in the above matters), as did everybody on
both sides.
On weight of credited evidence of record, I find Smith’s
statement about organizing the clerical workers, probably
didn’t occur in this meeting; but in a later meeting, either
January 12 or 29, and more likely January 12, but if not,
then in the abbreviated meeting held on January 29 when the
Company ended a meeting understrained circumstances with
the Union to be described below. I am in any event con-
vinced it occurred before February 15 when (as I find below)
District Manager Hayes first interrogated a nonunit clerical
employee about the subject of clerical union activity. Though
Smith and Norris did not recall that Smith said the employ-
ees wanted to go out and inform (BEMC) members about
BEMC not paying them for negotiating, so they could get a
Board that would pay them all to negotiate, Smith essentially
acknowledged that he said something like that, and, given
the background of the above circumstances I find he did.
Hatcher, with reason, did not remember that as the co-op
tried to leave the meeting room that Smith had referred to
Leavitt and Hughes as ‘‘shits and assholes.’’ Hatcher less
convincingly did not recall what led up to Employer’s leav-
ing the meeting. However, Hatcher has testified without con-
tradiction, if not with admission, that Hatcher thought that it
was on January 4 that Attorney Smith had also called Hatch-
er a ‘‘son of a bitch.’’ Hatcher otherwise testified both sig-
nificantly and convincingly that there were insults and pro-
fanity used by both parties throughout the negotiations; fur-
ther asserting that that is normal in negotiations; and, adding
that they try to hold it down as much as possible, but you
get some insults here and there.
Norris recalled that the difficulty in scheduling another
meeting with Employer at the end of the January 4 meeting
happened between Ruff and Hatcher; and, Norris wasn’t in-
volved in that at all. Hatcher has testified relatedly that it is
not correct that BEMC was trying to reschedule another
meeting, and the Union wouldn’t do it. Though Hatcher ac-
knowledged that he and Attorney Smith had to correspond
by letter to reschedule another meeting after that meeting,
Hatcher added his recollection of the meeting was that Attor-
ney Smith had folded his books up abruptly, and said we’re
gone, we’re leaving. Indeed, asserting he knew it was just a
little upset tension there, Hatcher specifically recalls he had
at that time said to Attorney Smith, let’s go ahead and sched-
ule another meeting. Hatcher explicitly denied Attorney
Smith had replied January 12. Rather Hatcher recalled Attor-
ney Smith just said to call him. I credit Hatcher’s account
as being the more likely manner of arrangement of the next
meeting.
e. January 12
Leavitt recounts credibly that for the next meeting, the
Company came with a one-speaker rule. Leavitt asserts, the
one-speaker rule was proposed by the Company to expedite
the bargaining process, to direct all of the Union’s table, and
all of the Company’s table through one speaker, respectively,
so that they could facilitate getting something accomplished,
as up to that point, they had gotten very little accomplished.
Leavitt believed after the situations that arose in the first two
meetings that it was going to be necessary for them to limit
the number of speakers. Leavitt didn’t believe management
had a right to tell the Union how their committees should be
operated; but he believed the Company had the right to help
to facilitate the discussion; and, they needed to set some
ground rules to be able to do that. Leavitt guesses (sic) they
tried to negotiate that ground rule; and, it was rejected.
Hatcher acknowledged that at the next meeting of January
12, the Company had told the Union that BEMC would no
longer tolerate roundrobin negotiations; that they would no
longer tolerate verbal abuse; and, that they were going to a
one spokesman rule. The Company’s position was then that
375BRUNSWICK ELECTRIC CORP.
no one was to talk in negotiations except Attorney Smith and
International Representative Ruff. However, the Union re-
plied, (essentially) if the Company wanted to gag their nego-
tiating committee, that’s fine; but there was no way the
Union was going to gag their negotiating committee.
Smith understood the law did not require the Union to ad-
here to it; that it was imposed just to restrict the Committee’s
talking; and, in his opinion it wasn’t necessary.
Leavitt recounts that the Company left the room on a cau-
cus. They had some counterproposals. Leavitt relates Ruff
came out and spoke to Attorney Smith, and said in theory
he agreed with the one-speaker rule, and he would try to
abide by it, but he had to check with Hatcher to see if he
agreed. On cross-examination, Leavitt confirmed that was the
only time Leavitt had witnessed a discussion about the one-
speaker rule, namely, when Ruff had come in the hall while
Leavitt was standing with Attorney Smith, and Ruff had said,
he agreed in theory that it would help move along the meet-
ings, but Ruff could not speak for the entire group; and Ruff
needed to discuss this with Hatcher. So Leavitt guessed Ruff
had never agreed to the gag rule. Ruff did not testify; and,
I credit Leavitt account to the above extent of a Ruff state-
ment of his personal approval of such a rule as made to
them. However, there is no viable question that the Union
never agreed to Employer’s proposed one spokesman, or gag
rule.
Hatcher did confirm that the union committee discussed it
among themselves to try to keep negotiations moving swiftly.
Though Hatcher did not recall Ruff say on a couple of occa-
sions that Ruff would try his best to observe the one spokes-
man rule; (or) that he knew it was out of hand and that we
(seemingly both parties) couldn’t negotiate; and, that he
would try his best to observe it, Hatcher testified categori-
cally Ruff had not put any stipulations (sic, restrictions) that
the committee (members) could not speak. I credit Hatcher’s
further well corroborated testimony that the Union said we
had never gagged our committee, and we don’t expect you
(Employer) to gag yours. When Hatcher was asked relatedly
didn’t he tell Attorney Smith on a couple of occasions that
he was having a little bit of trouble controlling those men,
Hatcher responded, he didn’t recall that; that he didn’t have
any trouble controlling them; and, that he had told Attorney
Smith, I can control them.
Leavitt recounts this meeting was very productive; and, it
was one of the few that they began to sign off on some
things. Hatcher candidly acknowledged when they got into
the negotiations that day, they agreed on at least five or six
proposals; and, they all felt good about that day, as they had
made some progress.
Smith’s developing difficulties on the job
On cross-examination Smith testified that he had been ag-
gravated with Cartrette on the job; and, on January 17 he
came into work (still) aggravated with him. After a few min-
utes, Smith asked Cartrette for, and received a day’s vacation
off. Hayes made a record of a Cartrette report that was made
to Hayes that afternoon that Smith had come into work that
morning with a very negative attitude towards the ‘‘whole
world,’’ cursing and carrying on, but not about any person
in particular; and the two agreed that it would be best if they
talked to Smith the next morning.
Hayes has recorded a note that the three met on January
18 about Smith’s ‘‘attitude towards his job and BEMC as a
whole.’’ Hayes also noted that in that conversation, Smith
told them he had a lot of personal problems that were not
associated with the Company; and admitted he had to quit
‘‘bringing them to work with him.’’ Smith asked for and re-
ceived a further day off.
Smith acknowledged that in a subsequent conversation
with Hayes he had told Hayes he was having personal prob-
lems, and also, that he had said at that time that it didn’t
have anything to do with the Company, though (at hearing)
Smith stated that was not totally true. Smith’s recollection
was Hayes told Smith he was going to have to quit bringing
them (problems) to work. Smith acknowledged both said
they agreed to work with Smith, but asserts that was only
what they said; and, in contrast, Smith asserts Hayes knew,
or should have known, Cartrette was very good at badgering
people; and, that that was what was going on all along.
f. January 29
The Company terminated the meeting on January 29 (as-
sertedly) because the employees violated the Company im-
posed one spokesman rule. That was the second time the
Employer had terminated a meeting. Leavitt explained (gen-
erally) that their position was not to unilaterally walk out
anytime, but rather it was, if they couldn’t negotiate under
reasonable conditions, then, they would walk out. Thus, they
evaluated conditions; and they determined when they would
walk out.
Over objection of General Counsel that the charge filed
was of surface bargaining, Leavitt testified that there were 10
charges filed, one of which was the Company’s unilateral
imposition of the one spokesman or gag rule, and that, after
an investigation of the charge(s), the NLRB (General Coun-
sel) did not issue a complaint on the Company’s alleged uni-
lateral imposition of a one spokesman or gag rule.
Whether the Company’s imposition of a one spokesman or
gag rule violated Section 8(a)(5) is not an issue placed before
me. However, it is warranted to consider and conclude even
at this juncture that to extent a gag rule has been advanced
in connection with Smith’s participation in the negotiations,
that circumstance does not by itself render Smith’s continued
conduct in a participation in the negotiation sessions any the
less protected, where the gag rule was a condition or proce-
dure rule never agreed to by the Union and thus never
engrafted on the collective-bargaining process. Moreover,
while assuming, and not condoning any profanity (or exces-
sive statement of his intentions in regard to management)
Smith may have uttered as is attributed to him above, Smith
clearly did not exceed bounds of protected activity in his par-
ticipation at all the above bargaining sessions, even assuming
(without finding) Smith was one who had at the end of the
heated January 4 meeting said to the departing management
group, ‘‘That’s okay, you all go ahead and leave. you
assholes.’’
2. Alleged interrogations by Hayes in February–March
The complaint alleges that in late February and early to
mid-March, that Whiteville District Manager Hayes interro-
gated employees concerning their union activities.
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nellene Holden has worked in BEMC’s Whiteville district
office for 22 years as a credit representative, under super-
vision of Office Manager Harlene Walters. Holden is not a
member of the bargaining unit represented by IBEW, but has
signed an IBEW union card. Holden attended a union meet-
ing that was held on February 19, a Monday night. Present
at that meeting were a group of clerical employees, as well
as some of the members of the bargaining unit.
Holden was approached prior to that meeting, she believed
on February 15, by Hayes in her office. Hayes asked Holden
how did she feel about the Union. Holden told Hayes at that
time she did not know, that she planned to attend a meeting
and learn what she could and that she would make up her
own mind. As best she remembered Hayes then said, that’s
what I need to know. Holden attended the meeting, accom-
panied by one other employee.
Hayes confirmed a conversation that Hayes had with
Nellene Holden about the Union, placing it in mid-March
(sic). Holden was in his office using the fax machine, as she
does daily. Hayes asked something to the effect, ‘‘Nellene,
how do you feel about the Union?’’ Hayes offered expla-
nation that at the time he thought he could do that, though
he knew it was a no-no with employees in the bargaining
unit, because they had been through ‘‘TIPS’’ (instructions
not to threaten, interrogate, promise, or spy), but Hayes re-
peated he was not aware that he could not do it with non-
bargaining unit people either.
Hayes recalled Holden explained to Hayes her husband
was in the Union with the telephone company, etc. Hayes re-
plied ‘‘Nellie, that’s good. Everybody needs two sides.
There’s two sides to every story and you need to get them.’’
According to Hayes that was the extent of that; though
Hayes didn’t remember the whole thing (conversation).
Hayes denied that Holden told Hayes any other information
about what was going on; and, Hayes didn’t ask (at least in
this first conversation).
However, Holden continued she had a subsequent con-
versation with Hayes about the Union, probably on the fol-
lowing Wednesday, February 21, in Hayes office. They were
alone. Holden was in the office using the fax machine. She
did not bring up the Union. Holden stated credibly that she
waited for, and only answered Hayes’ questions.
This time Hayes asked Holden what she could tell him
about what was going on with the Union. Holden said, I real-
ly do not know, or the only thing I know is I attended the
meeting on Monday night. Hayes asked Holden approxi-
mately how many people were there; and, Holden told
Hayes, 15. Hayes then asked Holden what offices were they
from; and, Holden replied all offices; and there was some
from each office. Holden relates Hayes then asked Holden
what they discussed. Holden told Hayes that they discussed
labor laws. Hayes asked Holden if she knew if the Company
was breaking any laws. Holden said she did not know; and
that was all that was said. (On cross-examination, Holden has
congruously confirmed she and several other employees had
interest in the Union on February 21; and, she did not know
whether any of the other employees had talked to Hayes
about the Union.)
Hayes confirms he had another conversation with Holden,
though placing it somewhat indefinitely on the next day, or
a short time span thereafter. Hayes remembered asking
Holden point blank, ‘‘Nellie, am I doing anything to break
NLRB rules?’’ Hayes asserts he wanted that for his own con-
structive criticism; and, that most people knew he was very
vocal in his office and he sometimes runs his mouth too
much, and he wanted to be very careful. Holden said, ‘‘No,
I know of nothing that you’re doing.’’
In this matter, I credit Holden’s version in full. Moreover,
I have found Hayes’ inquiry followed stated Smith intention
to organize the office clericals, as expressed to management
in attendance in January negotiation session. Hayes subse-
quent interrogations of Holden were neither casual of Holden
nor limited to her interest in the Union, but rather, as contin-
ued, took on clear probe of the degree of interest of office
clerical employees in the Union generally; across depart-
ments; and, of the nature of activities in the union meetings.
As it is clear Holden had not been initially open in her
(or others’) union activities, sympathies, and interests prior to
Hayes inquiry(ies) of her thereon in his office, I conclude
and find that on February 15 and 21 Hayes interrogated em-
ployees about their union activities, sympathies, and interests,
in violation of Section 8(a)(1) of the Act, Rossmore House,
269 NLRB 1176 (1984). It is concluded as well that Smith’s
recent statement of an intent to organize BEMC’s office cler-
ical employees had likely promoted Employer’s interest and
concern in that area.
3. The alleged bargaining futility statements and
harassment of Smith on February 28; and, alleged
discriminatory suspension of Smith on March 5
a. Preliminary observations
The events occurring at the end of February and early
March, leading up to the suspension of Smith on March 5
(and circumstances of a physical altercation that developed
between Smith and Leavitt in the negotiation meeting held
on May 9, that lead up to discharge of Smith on May 10,
below) were the most contested and litigated events that are
placed in issue by the complaint’s allegations.
The credited facts bearing thereon are in the end deter-
mined only after a marshal of what appears to be the more
mutually consistent and corroborative evidence, with how-
ever, certain undeveloped innuendoes in the evidence left of
record winnowed out; and, then, with appropriate attention
and weight given to apparent inherent probabilities, and, as
well, to the fair import or inference from any observed major
inconsistencies. Where the demeanor of a witness is deemed
to be the controlling factor on any area of fact found, it is
clearly stated, with reason therefor.
b. Cartrette’s alleged bargaining futility statements, and
harassment of Smith on February 28
The complaint alleges that on February 28, Line Foreman
Cartrette harassed an employee because of his union activi-
ties; and, expressed to an employee the futility of selecting
the Union as a collective-bargaining representative.
By this time, Smith had worked with the heavy equipment
right-of-way crew under Cartrette for about 2 years. Cartrette
testified that when Smith first started working with Cartrette,
Smith performed his job right; and, Cartrette thought he was
a fine employee. Indeed, Stevens, with whom Smith regu-
larly worked, testified that he regarded Smith as fine a man
as Stevens had known. With that background, and given
Smith’s interim increasing prounion prominence and the Re-
377BRUNSWICK ELECTRIC CORP.
spondent Employer’s (and Stevens) demonstrated animus to
the Union, inconsistencies in Cartrette’s, Hayes’, and Ste-
vens’ testimony on Smith’s asserted developed poor job per-
formance take on added significance.
Cartrette relates Smith had first started neglecting his job
duties after the union negotiations started, recalling it as just
prior to the first of the year, settling on late November or
December. The first recorded Smith deficiency after Smith’s
exemplary appraisal in February 1989 (apart from an auto ac-
cident involving backing his truck into a post in the field,
on which Smith was charged with negligence in April 1989),
was on a Cartrette reported and Hayes recorded perception
of an improper Smith attitude exhibited to job and Company
on January 17–18. This was in time well into proven difficult
first contract negotiations, and at a time when Smith (and
union committee) had already evidenced that he (it) was not
content to play the passive negotiating role Employer had
urged and pressed upon him and the Union in January.
Negotiations were again scheduled for the morning of Feb-
ruary 28. As chairman of the negotiating committee, Smith
had to attend. Smith had a week earlier arranged (with
Cartrette) to be excused from work by the Company for that
purpose. Employer canceled the meeting late on February 27.
Hatcher called later that evening and left a message for
Smith that the Company had canceled the negotiations sched-
uled for that (next) day. (Smith relates he received the mes-
sage only that morning, between 7:15 and 7:30 a.m.) After
first confirming the meeting was canceled with another em-
ployee committeeman (Norris), Smith went to work, arriving,
as Smith recalls (and I find) at the (Whiteville) office at 8
a.m. Smith’s normal starting time was 6 a.m.
Norris is a union designated but not as yet contractually
recognized union steward as well as appointed to serve on
Union’s negotiating committee. Norris had also arranged to
have February 28 off because of the scheduled negotiating
meeting. Norris recalled his wife had given, or put a note on
a home bulletin board that the negotiation meeting was can-
celed, which Norris (also) had only first noted that morning.
Norris has corroborated that Smith called Norris about 7:15
a.m.; and, that Smith had then asked Norris if Norris had
found out about the meeting being canceled. Norris replied
that he had just found out. Smith then asked Norris if he was
going to go to work; and, Norris replied he was, because he
didn’t have to be there until 8 a.m. Norris works an 8-hour
day starting at 8 a.m. Norris knew that Smith worked a 10-
hour day, but didn’t know whether Smith started at 7 or 6
a.m. (as is actual). Norris also confirmed Smith said he
would go to work too; and they both did, but separately.
Norris went to work at his normal time. Smith was unques-
tionably late.
On arriving at the office, Smith first observed his service
truck was gone. Smith prepared his foreman’s service truck.
Smith then went out to the jobsite, where Smith exchanged
trucks with Foreman Cartrette. Smith relates Cartrette first
instructed Smith to go on down the road and open a gate so
that the heavy equipment (Steven’s Kershaw) could enter.
Smith did as instructed.
Cartrette relates he had not expected Smith to come to
work on February 28; and, he had thus planned his workday
without Smith. However, Cartrette confirmed this was be-
cause Smith had informed Cartrette they were going to have
a negotiating meeting that day; and, Smith had said he
wouldn’t be there on that account. Most of the time Smith
worked with Stevens; and, at least in the last few months,
Cartrette (essentially) hadn’t been working with (near) them.
In operating the Kershaw, Stevens cuts (or bush-hogs)
right-of-way up under the powerlines. Smith’s responsibilities
as groundsman were to shrub (i.e., chop bushes) around light
poles and around the guy wires, and to ride up ahead of Ste-
vens and check the right-of-way. Cartrette was doing Smith’s
job that day rather than running the clipper (ahead) as nor-
mal. Cartrette stated it did not upset him to be doing Smith’s
job. Cartrette recalled Smith came to work late. At hearing
Cartrette (erroneously) placed it later, i.e., somewhere be-
tween 9 to 10 a.m., rather than what appears more likely on
weight of more credible evidence, as between 8 to 9 a.m.,
and probably closer to 8:30 a.m. when Smith first showed up
in the field for work. E.g., Hayes has recalled, that in
Cartrette’s report of the incident to Hayes (below), that
Cartrette had then placed Smith’s arrival in the field between
8:30 and 9 a.m.; and Norris had a compatible recollection of
being called by Smith (below) about 45 minutes to an hour
after Norris had arrived at 8 a.m.
Cartrette has related that his first contact with Smith on
February 28 had actually been earlier that day, when Smith
had called Cartrette on the truck radio and asked what his
location was. Cartrette told Smith right where they were,
and, then asked (only) if Smith were coming to Cartrette. In
a few minutes Smith had arrived. When Smith drove up they
switched the trucks; and, Cartrette took the (foreman’s) truck
that was regularly assigned to him. (The truck Cartrette pre-
viously had and which he exchanged with Smith was a truck
designed to stay with the bush-hog.)
At this time Cartrette’s (heavy equipment) right-of-way
crew was working in a fenced area where they had lines,
and, Cartrette confirmed that after they switched the trucks,
Cartrette told Smith, let’s go around and open the gate for
Wendy (Stevens) where he can go through with the machine.
Cartrette says they did, and waited until Stevens got in and
he was (again) cutting in the right-of-way.
After Smith opened the gate, Smith’s version has Cartrette
pull in several minutes later, get out of his truck, and come
toward Smith, who rolled down his window as Cartrette ap-
proached him. Smith relates Cartrette then told Smith that he
was going to have to get on Smith about doing his job.
Smith promptly replied, ‘‘Floyd, I’m doing my job as good
or better than any of your past groundsmen out here.’’
Cartrette has confirmed that he walked up to Smith and start-
ed talking to Smith about his job performance. Cartrette as-
serts Stevens had told him that Smith wasn’t doing his work,
which Cartrette says he knew too, so Cartrette just spoke to
Smith about it. (The several material aspects of the subject
of Smith’s job performance are more conveniently to be dis-
cussed below.)
Smith has Cartrette reply, ‘‘You beat all I’ve ever seen.
You’ve got Wendy about ready to quit. Since you and the
Union has been here, you haven’t been anything but trouble
(or, on other occasion, haven’t done nothing but caused trou-
ble). If you or anybody else thinks they can do better, you
should quit and find you another job.’’ Smith then said,
‘‘Well Floyd, the Union has already done good. It’s already
gotten you a two to three dollar an hour raise in the dental
plan.’’ Smith has Cartrette reply, ‘‘No, what’s going on is
you and the Union are trying to take over the Company.
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
That’s not going to happen and you’re not going to get any-
thing.’’
Cartrette has specifically denied he said, ‘‘You and the
Union have caused nothing but trouble since you’ve been
here(;)’’ and, denied he said, ‘‘You and (the) Union are try-
ing to take over the Company and you’re not going to get
anything(,)’’ (sic) with Cartrette asserting, I didn’t breath the
word ‘‘Union.’’ Smith has explicitly denied that he brought
up the Union.
Cartrette acknowledged he did say to Smith, ‘‘You beat
everything I’ve ever seen.’’ Later, though lead in part,
Cartrette related, best he can remember, he had told Smith
that Smith had Wendy (Stevens) so upset he was ready to
quit the job and leave (but adding) on account of the way
Smith was putting pressure on Stevens by Smith not doing
his work like Smith should. Cartrette recounts he asked
Smith, why Smith didn’t go ahead and do his job (or work)
and save us all (or save me, Wendy and all the rest) a lot
of problems. Cartrette relates that Smith then asked what
Cartrette was talking about: and so Cartrette told Smith the
best he knew, and Cartrette states generally, one thing had
led to another.
On subject of Smith leaving the job, Cartrette’s version is
that Smith had first told Cartrette the Company could pay
him more, and they weren’t paying Smith what Smith felt like
was right and all, so Cartrette had then told Smith, ‘‘Well,
I’d leave then. Go get me another job, if I felt that way
about the job.’’ On other occasion Cartrette related the best
he could remember, he did say ‘‘he (Smith) had caused trou-
ble,’’ but with Cartrette (again) relating that the kind of trou-
ble Cartrette had there referred to was Smith causing Stevens
to feel it was going to cause Stevens problems if Smith
didn’t do his work.
In contrast, and in what can only be viewed as then re-
vealing that there was a specific and significant discussion of
the Union in the conversation, Cartrette acknowledged that
in Smith saying ‘‘Look what they have done for you,’’ Smith
was referring to what the Union had done for Cartrette; and,
Cartrette told Smith on that occasion that the Union had
done nothing for him. Though Cartrette hastened to add he
didn’t use that word (Union), and he had just said, they
hadn’t done a thing for me, Cartrette’s testimony in this re-
spect appeared as at best strained, if not contrived in his at-
tempt to preserve that limitation of not saying the word
Union. However, Cartrette’s acknowledgment appears to be
itself predicated on earlier discussion of the Union. To the
extent the Respondent would seek to rely for support of a
contention Cartrette did not mention the Union in this con-
versation, on a prior Cartrette decision (assertedly made con-
trary to superior instruction, and for fear of his being mis-
quoted and written up), not to read some preelection cam-
paign material in September 1989 to his crew of two, which
notably then was composed of Smith as leading union adher-
ent, and Stevens who did not favor the Union, the same is
deemed wholly unpersuasive of that purpose.
To the contrary, I find Cartrette’s account of the conversa-
tion in the end has in large measure tracked Smith’s account;
and, to the extent it has varied, it appears as not as internally
consistent as Smith’s account; and, it does not in any event
discount the fact that the Union was a substantial part of the
conversation. Moreover, Cartrette continued on an occasion
of just such divergence from Smith’s account, then to appear
disjointed in his memory of the remainder of the conversa-
tion, or what next occurred. Smith’s account simply appears
more internally consistent and convincing than does that of
Cartrette, particularly on the contributing part that Smith’s
proffered justification for union negotiations on linemen’s
pay played in the conversation’s abrupt end.
Cartrette acknowledged that Smith was pretty vocal for the
Union. In that respect, Cartrette asserted a man’s opinion
about the Union didn’t make that much difference to
Cartrette; and, Cartrette said if people want the Union, that’s
fine. However, Cartrette also acknowledged: that he was
against the Union; that he didn’t believe that the Union—can
really do anything for people; and, notably, Cartrette em-
phatically agreed that since the Union has come to BEMC,
Cartrette has had lots of problems. Smith’s account, in that
it has attributed to Cartrette a statement of a joinder of trou-
ble or problems to Smith and union arrival, is far more sup-
ported on the record than any Cartrette asserted deference to
Smith’s support of the Union.
Under all the above considerations, Smith’s testimony is
more internally consistent and convincing in evidencing the
true nature of the conversation as supporting the complaint’s
allegation of Respondent Employer’s harassment of Smith
and bargaining futility statements, and I credit it in the main.
Thus, I find during the conversation, Cartrette told Smith (es-
sentially) since Smith and the Union have been here, Smith
hadn’t done nothing but cause trouble; and, in relatedly say-
ing, if Smith or anybody else thought they could do better,
you should unite and find you another job, Respondent Em-
ployer has thereby coerced and harassed Smith in regard to
his union activities, in violation of Section 8(a)(1) of the Act,
cf. Seville Flexpack Corp., 288 NLRB 518, 532 (1988).
Under the above circumstances, I also find Cartrette told
Smith that he and the Union were trying to take over the
Company, and that was not going to happen. Furthermore,
though not without some reservation, I credit Smith and I
find that Cartrette also told Smith that they were not going
to get anything. (A reservation on the latter arises from sur-
face inconsistency of such a remark with an Employer’s
wage offer increase that was initially placed on the table.
However, Employer’s wage offer(s) to date was (were)
deemed inadequate by Smith and the Union, and were not
accepted by the Union. Indeed, Stevens confirmed Smith had
told him on the job that they were going to go for it all,
meaning, go for all their wage demands.)
Even assuming, without so finding, that Smith had in
some manner in the conversation brought up his own wage
rate as being illustratively low, as Cartrette has recalled he
did, in all the above circumstances, including of Foreman
Cartrette stating to Smith, at a time when Smith was known
by Cartrette to be actively engaged in ongoing negotiations
with Employer (and, materially, continuing to evidence his
firmness on the Union’s demands for wage increases), that
if he (Cartrette, but clearly being urged for Smith action) felt
that way (underpaid), that he would leave and go get another
job, I conclude and find Respondent Employer has thereby,
in substance and effect, told its employees that their contin-
ued collective bargaining on the subject of wages (even if as
then to be considered applicable, i.e., beyond the wage offer
of Employer) was futile on their part, as is essentially alleged
in the complaint to be in violation of Section 8(a)(1). The
violation is made in either urged eventuality.
379BRUNSWICK ELECTRIC CORP.
Despite Smith account of Cartrette’s upsetting tone and
hollering voice, Smith pressed on with a protected expression
of his perceived need for the Union and collective bargaining
on employees’ wages with additional statement, ‘‘Floyd, it’s
a shame what first class linemen make at this Company.’’
Smith recounts Cartrette then stepped up to his window and
said, ‘‘There aren’t any first class lineman (sic) that works
for Brunswick Electric.’’ Though acknowledging he had
heard it before, and that he was hurt, Smith denied he cursed
on this occasion. Smith’s version is he said, ‘‘Floyd, I don’t
have to take this; I’m going in.’’
In contrast, if reflecting a more likely Smith response
(with Employer’s witness Stevens’ characterization of
Smith’s common usage of cursing, below), yet also then pre-
ceded by an instance of simply incredulous forgetfulness on
Cartrette’s part, Cartrette has asserted he forgot exactly what
he had then (first) said to Smith, but recalled (initially) Smith
then said to Cartrette, ‘‘Fl you, no gl dl body can’t
talk to you. no way, fl you.’’ However, in later testifying
essentially otherwise to the same, Cartrette then left off the
‘‘Fl you’’ brackets. Hayes offered no effective corrobora-
tion. Hayes recalled it later reported to him by Cartrette not
only inconsistently, but also too tentatively and I find
unconvincingly, as having involved a ‘‘ml fl (expletive),’’
or something to that effect. I do not credit Hayes’ recollec-
tion of what Cartrette had told Hayes, Smith had (profanely)
said to Cartrette.
Stevens initially recalled Smith just went in there rip-
ping—cussing and all. However Stevens, who was too far
away to hear the conversation, clarified on cross-examina-
tion, Smith’s usually cussing, but if he said Smith did cuss,
he had better take that back, because he did not know that.
However Stevens knew Smith went in there very emotional,
because he was upset. I find both Cartrette’s statement in na-
ture of a first class lineman aspersion (as Smith at least sure-
ly viewed it), and some form of profane response as is re-
ported by Cartrette, but without the ‘‘Fl you’’ brackets’
embellishment, more likely than not had then occurred. How-
ever, I also find Smith’s likely profane response of ‘‘No
gl dl body can’t talk to you, no way,’’ as said to
Cartrette was one not only stated in a conversation in which
Cartrette had already made harassing reference to Smith as
causing trouble with the advent of the Union, and the coer-
cive bargaining futility statement to Smith in violation of
Section 8(a)(1) of the Act, but was said in direct response
to a statement Cartrette had made to Smith in further provoc-
ative manner, clearly demeaning other unit employees in
matters of union negotiations.
c. The alleged discriminatory suspension of Smith
In interest of ready comprehension of the subsequent mate-
rial incidents in conflict, Employer’s discipline of Smith is
presented at this juncture. The complaint alleges that on
March 5 Respondent Employer issued a discriminatory sus-
pension to Smith. On Monday morning, March 5, Hayes met
with Smith in Hayes’ office. (Also present were Cartrette and
Norris.) Hayes had a prepared written warning (R. Exh. 3),
which Hayes read to Smith. Hayes then suspended Smith for
the week. Hayes summarized: Smith did not like it; Smith
thought he was being picked on, and abused; and Smith re-
fused to sign the warning. Hayes relates Smith did not react
in the same way that Smith had on February 28.
(1) The suspension and warning given
The warning was checked for Smith’s misconduct in tardi-
ness, attitude and disobedience. It otherwise provided:
The Cooperative has thoroughly investigated your
conduct of February 28, 1990. This is to advise you
that you will be suspended without pay for four (4)
days, beginning Monday, March 5, 1990, and ending on
Thursday afternoon, March 8, 1990. Your file currently
contains a warning for negligent operation of a Cooper-
ative vehicle leading to an accident in April 1989. In
addition, you were counselled on January 18, 1990
about your attitude and your problems with BEMC as
your employer.
Your conduct on February 28 evidenced the follow-
ing specific work rule violations:
1. You were insubordinate to your supervisor (work
Rule 3).
2. You damaged Cooperative property (Work Rule
11).
3. You used abusive language toward your super-
visor (Work Rule 13).
4. You failed to report to work on time without ex-
planation (Work Rule 18).
5. You left work without authorization (Work Rule
20).
Equally serious is your display of temper and profan-
ity in the presence of office personnel and consumers
of the Cooperative. This conduct will not be tolerated
in the future. This is to advise you that any violation
of any work rule, or any conduct such as that which
you displayed on February 28, in the next twelve (12)-
month period will lead to your immediate termination.
It is warranted to observe at the outset that there is no job
performance criticism presented in writing as a reason for the
disciplinary actions taken on March 5, though that was what
purportedly precipitated the Cartrette–Smith confrontation on
February 28 (above), and what Hayes asserts he had further
investigated in the interim (below). The related events of
February 28 and subsequent days now continue.
(2) The heated discussion in Hayes office
Cartrette relates that in the field, Smith had jerked his
truck in reverse and left digging out of the gate; and, Smith
went spinning off with his truck. (In as much as Cartrette has
effectively conceded that Employer’s placement of Smith’s
truck in for major repair 2 days later was required as in nor-
mal maintenance, I do not pursue Cartrette’s, or any other
witness’ observations, e.g., Ward, on Smith’s use of the truck
this day.) Cartrette did say he had not given Smith permis-
sion to leave; and, contrary to Smith claim that Smith had
said at the time that he was going in, Cartrette asserts Smith
didn’t say where he was going. In contrast, Smith recounts,
on leaving, Smith got on the radio and called Hayes. Smith
told Hayes he was coming in; that Smith needed to talk to
Hayes; and, Hayes said he would be waiting on Smith. Smith
called Norris, as union ‘‘job steward’’ for the Whiteville dis-
trict. On arrival at the office, Smith parked his car in back;
and then went in.
Cartrette testimony reveals that even before setting out,
Cartrette had decided to call Hayes. Cartrette otherwise as-
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
serts he got in his truck and started out after Smith, intending
to follow and see which direction Smith went. Cartrette stat-
ed (only) he could not communicate with Smith’s truck.
When Cartrette arrived at the second (paved) intersection,
Cartrette couldn’t really tell which way Smith had gone.
Cartrette stayed there a minute or two thinking what to do
(next). Cartrette then went to nearby Evergreen (city). From
there, Cartrette called Hayes on the phone, and told Hayes
what happened. Hayes told Cartrette, Smith had radioed that
he was on his way in. Hayes told Cartrette to (also) just
come on in to the office.
Hayes confirmed that on February 28, there was a radio
call from Smith. Though Hayes placed it somewhere between
9 and 9:30 a.m., he elsewhere indicated it was closer to 9
a.m. (E.g., on cross-examination Hayes placed Smith’s 20-
minute later arrival at Hayes’ office also somewhere between
9 and 9:30 a.m. Hayes recounts Smith arrived in Hayes’ of-
fice 15, 20 minutes at most after Smith’s call to Hayes.
Hayes’ estimate was based on where Smith was located,
which Hayes asserts he later viewed, below, and assumption
that Smith had called Hayes roughly soon after he left his
work place.) Hayes does not have a radio in his office but
there is one that is located in an adjoining office. Hayes re-
called that one of the ladies in the office stuck her head in
and said that Smith was trying to reach Hayes on the radio.
Hayes hadn’t seen Smith earlier that day; nor had Hayes re-
ceived any (earlier) phone calls from Smith indicating Smith
was going to be late to work.
Hayes went to the radio office where he received Smith’s
message. Hayes called Smith back. Hayes definitively re-
called Smith said, ‘‘I’m on the way in, could I talk with
you?’’ Hayes replied, ‘‘Yes, I’ll be in the office.’’ Hayes
didn’t inquire (from Smith) what was going on. Hayes con-
firmed that at the time he could tell Smith was excited; and,
that from the tone of Smith’s voice and words it was not a
normal request. Hayes testified credibly, Smith wasn’t
screaming, but Hayes could just tell and knew from the dif-
ferent tone of his voice on the radio that Smith was upset.
Hayes normally talks to employees in his office. In that
regard (and any urging of counsel for the General Counsel
to the contrary notwithstanding), I find that Hayes had rea-
sonably first arranged with Smith for Smith’s complaint to
be discussed with Hayes in Hayes’ office, as was a cus-
tomary procedure for Hayes, though Hayes knew that Smith
was excited and upset about something.
Though not sure of the timespan, Hayes guessed it was 5
minutes after Smith had called Hayes on the radio that
Cartrette called Hayes. Thus, Hayes recalled as he got back
to his office, Cartrette had called Hayes on the phone. Hayes
relates Cartrette told Hayes Smith had left the worksite and
Cartrette didn’t know where he was headed, but (sic) could
Hayes just see if Hayes could get Smith on the radio. Hayes
has relatedly asserted a belief that the radios in Smith’s and
Cartrette’s trucks were on two different systems; and, offered
an explanation, Cartrette could not contact Smith directly by
truck radio because of a system difference. (However, that
would then appear inconsistent with Cartrette earlier relation
of having received and answered a message that morning
from Smith seeking directions to where the crew was work-
ing. In the absence of corroboration, I do not credit Hayes’
explanation.) If Cartrette had heard Smith’s traffic on the
radio, it would of course account for Cartrette’s phone con-
tact of Hayes. Several others surely heard it, below.
Be that as it may, in light of Hayes’ recount of a Cartrette
request at the time of Hayes to only try to raise Smith on
the radio; and, in any event, in light of both Smith’s and
Hayes mutually consistent accounts of Smith’s notice to
Hayes that Smith was coming in, and Hayes’ approval of
Smith’s request to meet with Hayes as timely made to Hayes,
and of Hayes’ confirming recount that he told Cartrette that
it was okay, that Smith had already called Hayes on the
radio that Smith was coming in; I am persuaded Smith’s de-
parture from the field even if not to be viewed as noticed
to or approved by Cartrette at that time, was (at least) timely
condoned by Hayes interim direct approval of Smith’s re-
quest for the meeting of Smith with Hayes, whatever may
have been Cartrette’s developing view of the situation. I am
also convinced, from an apparent time passage (below),
Hayes had likely taken the time to obtain some preliminary
report of the incident from Cartrette on the phone; and, then
directed that he come in.
Norris recalled it was about 45 minutes to an hour after
Norris arrived at work that Norris received a call on the
radio from Smith, who asked Norris to get his foreman’s per-
mission to come back in. Norris related at first that he didn’t
say anything to Etheridge because Etheridge had heard it (the
request) over the radio, and motioned for him to go. How-
ever, Norris clarified that he did ask Etheridge anyway; and,
Etheridge told him to go.
Norris went to Hayes’ office in Whiteville. Norris initially
related he met Smith in the building, but then related on
cross-examination that Smith had arrived first; that Norris
had met him outside; and, that the two walked into Hayes’
office together. Norris could tell by talking to Smith, that
Smith was very upset; and, conceded that you could probably
say mad. Norris recalled they proceeded over to District
Manager Hayes’ office, where they met alone with Hayes.
Norris also recalled there was then no one in the hallway
(leading to Hayes’ office); and, when they went in, Norris
closed the big wooden door to Hayes office. Norris’ estimate
was that Hayes’ office is 45–50 feet from the front where
the consumers come in and pay their bills. Norris also re-
lates that he didn’t see any consumers up front at the time.
As noted it appears there was some measure of time pas-
sage associated with the call of Cartrette. Hayes recalled it
as but a minute or so later office manager Harlene Walters
came into Hayes office and wanted to know if Hayes had
heard Smith on the radio calling Norris to come into the of-
fice, followed by Hayes account of Norris and Smith sepa-
rate arrival promptly thereafter. Hayes relates when Hayes
responded he hadn’t heard Smith’s call for Norris, Walters
said, ‘‘Well, he did and told Ricky (Norris) to come on into
the office.’’ Hayes recalled that as he started to the radio
(room) to call Norris (and in notable contrast with Smith) to
find out upon whose aproval Norris was coming into the of-
fice, when at the door, Hayes saw Norris already coming
down the hall.
According to Hayes’ recollection, Norris had come in the
back door (alone); and, the first thing Norris asked Hayes
was, ‘‘What’s going on?’’ Hayes replied, ‘‘I don’t have the
slightest idea. Come on in my office. Doug will be in a few
minutes and we’ll find out.’’ Hayes relates he and Norris
went to Hayes’ office; and, as they sat down, and Hayes
381BRUNSWICK ELECTRIC CORP.
started to ask Norris (about being there), in a matter of sec-
onds, with Hayes’ office door closed, Hayes heard someone
come in the back door; and, Hayes heard the person coming
down the hall making a commotion. From previous conversa-
tion on the radio and all, Hayes knew it should be about time
for Smith (to arrive).
Hayes’ account would have appeared the more readily per-
suasive, with the available and Employer presented support-
ing testimony of company witnesses, except Hayes has also
then appeared to inconsistently recount that when outside his
office, Hayes couldn’t really understand what they were say-
ing there; that they knocked on the door; and, Hayes told
them come on in. If not Smith and Norris, as Smith and Nor-
ris appear (at least on occasion) to have claimed to have ar-
rived at Hayes office together, it is then unclear who Hayes
here has plurally referred to. On the other hand, Smith was
unsure Norris was not already there as Hayes recalled.
Though accounts of Respondent’s other witnesses appear
not to be such to rule out Smith’s and Norris’ account of a
meeting outside the building in which Hayes has his office,
and a joint entry of Hayes’ office as distinguished from
Smith’s prior separate arrival at the back of, and passage
through a connected, separate warehouse building, on closer
observance of the accounts of Employer’s other witnesses,
they appear in the main more supportive of Hayes claim of
separate arrival of Norris and Smith; and, I find that to be
the fact.
Employer’s warehouse is a tin building, located adjacent
to its office building, with covered walkway between them
that joins otherwise separated buildings. Charles E. Ward is
employed at the Whiteville District office as warehouse coor-
dinator. Ward supports Hayes, at least to the extent of
Ward’s observance of Smith’s separate arrival and entrance
of the warehouse through the back door of the warehouse,
and Smith’s passage (alone) through warehouse and mainte-
nance areas on his way to Hayes’ office.
Thus Ward relates that he was in the warehouse the morn-
ing of February 28 performing his normal paperwork, when
he heard a truck come up kind of rapidly outside, and a
sound like wheels dragging on rocks. Ward had heard the
traffic on the radio; and Ward knew that Smith was on his
way in. Ward saw Smith come in through the back door of
the warehouse and walk rapidly through warehouse and
maintenance department. Ward did not see Norris in the
warehouse. Though Ward observation corroborates Hayes
(and Smith) in Smith’s separate arrival (and parking in the
back), Ward did not see Smith (or Norris) actually enter
Hayes’ office which is itself in the adjacent, separate build-
ing. At the time Ward saw Smith in the Warehouse, Ward
confirms Smith looked real upset.
As Ward at that time was momentarily through with (cer-
tain) of his paperwork, Ward had started on up the hallway
behind Smith. However, Smith moved rapidly ahead of
Ward; and, Smith was out of vision (when) on his way to
Hayes’ office in the other building. Thus, Ward recounts
Ward first went on to the lobby in the maintenance depart-
ment where he had some paperwork to do, after which Ward
(regularly) goes on to the office. When Ward (briefly) com-
pleted that work, Ward took his paperwork to the service
representative’s office up front in the adjacent office build-
ing, passing by Hayes’ office. However by that time Smith
and Norris were clearly already in Hayes’ office as is made
to appear evident from Ward’s own testimony (below).
BEMC employs Harlene Walters as office supervisor or
manager in Whiteville district office. Walters has an office
in the front office section, 10–12 feet from Hayes’ office.
Her desk or normal work area is approximately 12–14 feet
from Hayes’ office. Walters recalls she saw Smith when he
came in. However, she didn’t hear Smith before he walked
through the door. Walters relates that it was after Smith
came in the door that she had first heard his steps; and, that
she just looked around to see who had come in the door and
(observed) it was Smith. Walters did not say Smith slammed
the door when he came in; nor, did she otherwise confirm
Smith commotion with another at this time; nor did she spe-
cifically see when Norris arrived. Walters did not see them
leave.
Thus, on the weight of what appears in the end to be the
more persuasive evidence, I conclude and find it shown of
record as more likely than not, that there was a separate ar-
rival at Hayes’ office that morning, first of Norris, and then
Smith, as Hayes has otherwise recalled. To the extent Norris
has had a conflicting recollection of an arrival on this occa-
sion with Smith and a joint entry with Smith into Hayes’ of-
fice, I conclude Norris is more likely simply in error in that
respect; and as likely has mixed a recollection of another
such occasion, for there were several. In any event, on
weight of credited evidence I find that while there may have
been no consumers present at the front when Norris first ar-
rived, and he (and Hayes) had entered Hayes’ office, it was
more likely otherwise shortly thereafter when Smith arrived.
Smith acknowledged that he was very upset when he ar-
rived. Indeed Smith testified he was on the verge of being
emotional; and, that he could feel that something was going
to take place. On entering Hayes’ office, Smith first told
Hayes that Smith was sick and tired of Floyd’s treatment.
Smith then said that he wanted to go to the warehouse.
Smith recalls Hayes first told Smith to calm down; and, we
can just talk here; but Smith replied, ‘‘No, Ronald, we need
to go to the warehouse.’’ Smith didn’t think he was in
Hayes’ office for 30 seconds.
Hayes relates when Smith came into Hayes’ office, that
Smith had exploded with cursing, and vulgarities. Hayes
doesn’t like to use the words, but didn’t object to it. At this
time it was just generalities in that, Smith said, ‘‘This God
damn Company is fucking us. They’re not doing a thing for
us. Floyd is a sonofabitch, et cetera, et cetera, et cetera.’’
Hayes recalls, it was really incoherent in that Hayes could
not really tell what Smith was getting at; that Smith jumped
from one subject to another; there was no sense being made
from it; and, Hayes couldn’t get a word in edgewise. Hayes
confirms otherwise that Hayes had said, ‘‘Doug, please calm
down.’’ Smith kept right on. Again, ‘‘Doug, please calm
down.’’ Right on. Hayes finally said, ‘‘Please, Doug, let’s go
to the warehouse so we can settle this.’’ Smith then calmed
down a little.
Hayes asserted main contention (sic, but in context seem-
ingly objection) at that time was not to listen to Smith, but
Hayes knew that they had other employees in the office.
Hayes has also asserted he knew that they had members out
in the lobby and his main contention (sic, again objection)
was of those people having to listen to what was going on.
On other occasion Hayes clearly reaffirmed his initial and
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
primary concern when Smith came in and all hell broke
loose was to keep things quiet for the rest of the employees,
and members out in the lobby. I am not persuaded Hayes
knew there were members out in the lobby at this time, but
he knew there were office employees in the area who might
overhear a continued loud diatribe. (Certain testimony of
Hayes, below, indicates Hayes did not know there were con-
sumers present, in that subsequently he made inquiry of oth-
ers whether there were any consumers up front that might
have overheard the heated conversation in his office. There
were.)
Hayes recalled Norris, to Smith’s right, hadn’t said a word
at that point, but according to Hayes, Norris then did stand
up and (also) say, ‘‘Doug, please calm down and let’s go to
the warehouse.’’ Though initially asserting at that time Smith
said, ‘‘Okay,’’ Hayes promptly retracted with an apparent
unsureness Smith said okay (or anything more). Hayes then
related, anyway Smith turned around, opened the door and
walked out; and, Norris and Hayes then followed imme-
diately behind Smith. Hayes guessed they had stayed in his
office for 3–5 minutes. (Office Supervisor Walters corrobora-
tively estimated 4–5 minutes.)
In a voice described by Norris on cross-examination as an
authoritative voice; and, then described as one of wanting to
be heard, but not hollering or loud (and because of which as-
sertions, Employer would question credibility of Norris gen-
erally), Norris related that Smith had started talking; and,
that Hayes could see Smith was upset. Norris has recalled
otherwise that when they arrived in the office, Smith sever-
ally said, that he was ‘‘sick and tired of Floyd’s shit,’’ that
he needed things to be moved; that Cartrette was not doing
him right; and, that Cartrette had just jumped on him about
the Union, and about another boy quit. Contrary to Hayes,
Norris corroborated Smith that Norris had not told or asked
Smith to be quiet (in Hayes’ office). However, Norris has
confirmed Hayes that Hayes had asked Smith several times
(to calm down); that they let Smith talk there; and, there was
some profanity used.
Smith has acknowledged his voice was louder, but Smith
has (essentially) questioned that he was screaming. In con-
trast with Norris’ nonobservance of consumers up front when
they went into Hayes’ office, Smith has testified that he did
not know whether consumers who were paying bills up front
could hear all of this going on; but Smith (candidly) said his
then concern was to go to the warehouse where they would
not hear it. I am persuaded therefrom, Smith had (at least)
entertained the consideration (if Smith was not actually
aware of it at time of his later arrival), that there were con-
sumers in the area at that time. However, though Smith from
the outset repeatedly requested they go to the warehouse,
Smith did not exit Hayes’ office without first obtaining
Hayes’ agreement to go to the warehouse to continue what
was already a very heated discussion by Smith. Indeed,
Smith acknowledged it as a fair statement that at this time
he was out of control; and Smith asserts (credibly) on that
account he had wanted to get where consumers could not
hear it. Though Smith didn’t think it was 30 seconds be-
tween the time he went into Hayes’ office and left and went
in the warehouse, on weight of more credible evidence of the
time passage, I find it was more like the Hayes’ (corrobo-
rated) 3–5 minutes.
During this time, Norris confirmed, and I credit: that
Hayes told Smith to calm down, repeatedly; that Smith said
they didn’t need to talk about it there, and several times, we
need to go to the warehouse; that Hayes at first said, no, we
can do it here; that finally, Hayes agreed to go to the ware-
house; and, when he said, ‘‘Lets go,’’ Smith walked out the
door; and, they behind him. Thus, I further credit Smith and
Norris that Smith was urging on Hayes from the outset that
they go to the warehouse to hold what Smith already knew
was on Smith’s part to be a heated discussion; and, I find
that when after a few minutes Hayes saw he could not quiet
the really upset Smith, Hayes agreed to go to the warehouse
to continue the discussion there where it would not be heard
by others, i.e., by office employees, or any consumers that
might be up front.
In the interim, Office Supervisor Walters had heard a loud
outburst coming from Smith. She heard a lot of profanity and
vulgar language, that she said (without press of either party)
she would rather not repeat, stating she had religious objec-
tion to repeating it. Walters did not hear Hayes use profanity
in any way. Walters then related she couldn’t recall in the
course of her 16 years people had ever used profanity before;
and, Smith’s use of profanity was the first time she had
heard it in the office.
Counsel for General Counsel contends that in a business
where supervisors have acknowledged that profanity in em-
ployee conversation was not unusual, Walters’ assertion that
she hadn’t heard it in her 16 years in the office, is simply
not worthy of belief. Apart from the loud and profane Smith
incident in the office under present consideration, and as dis-
tinguished from similar employee discussions with super-
visors in the warehouse, or in other plant or work areas,
there is no evidence presented to support there was prior use
of such profanity in office areas by employees. While Hayes
doesn’t appear to make claim that profanity was never used
in his (well insulated) office, e.g., when used in discussion
of prior employee complaints and grievances, what was dif-
ferent here (I find) was clearly the degree of loudness of the
conversation held inside Hayes’ office, and a circumstance
that certain of Smith’s profane vernacular extended in vary-
ing degree outside the room, with undesired effect.
Contrary to contention of General Counsel, I credit Wal-
ters recollection that employee use of such profanity in the
presence of office employees working in Employer’s general
office areas was (as I am convinced and find it was, at least)
very rare. However I also conclude it was rare, in part be-
cause the instance of it emanating from Hayes’ office in
prior discussion of employee grievances, etc., was equally
rare, because of Hayes’ well insulated office.
Walters has otherwise related that she then went up to the
front to check on the employees, because everything was so
loud in the building, until it was a terrifying experience. No
one else has confirmed or described this incident in terms of
it being a terrifying experience, so much as describing it as
an unusually loud conversation then being held in Hayes’ of-
fice, and, in certain overheard profane aspects, offensive, as
determined below. Walters otherwise recalls that she went up
front and walked in where the other ladies were, and they
were like, what in the world is going on, because they did
not know what or who it was. Walters has then more reveal-
ingly related she just said (as in full explanation to them of
the situation), ‘‘Well, it’s Doug.’’
383BRUNSWICK ELECTRIC CORP.
Walters’ late reference to a terrifying experience when ini-
tially made at hearing impressed me at the time as not only
being clearly conclusionary on her part, but as more probably
a subjective hyperbolic summary being made under the cir-
cumstances then being described at hearing. On present re-
view of the entire record in that regard, and all other wit-
nesses’ accounts of this incident, it is even more apparent as
in nature an exaggerated overstatement. Employer’s seizure
in brief on Walters terrifying remark in the above cir-
cumstances does not advance it in my view in degree of per-
suasiveness of what the facts of the developing incident actu-
ally were. This is not to say the conversation was not unusu-
ally loud in being heard outside Hayes’ office despite insula-
tion there (as compared with the rest of the office areas), and
clearly offensive to some, both because of that loudness and
the overheard profanity being used by Smith, who had been
clearly authorized by Hayes to state his complaint there, but
was as clearly out of control in doing it.
Hayes’ office is 12-by-16 feet with well insulated walls,
6 inches of insulation overhead and with solid core wood
doors. Hayes version is that Smith’s voice was very high
pitched, angry, abusive and very loud. Hayes stated at hear-
ing he thought that everyone heard what was going on. How-
ever, in doing so, Hayes acknowledged that was at the time
being concluded by him from his having just heard the prior
testimony of others at hearing.
In significant contrast, Office Supervisor Walters related
that she had heard no specific subject matter, and acknowl-
edged that it was fair to say that she had no idea what the
subject was that was being discussed in Hayes’ office. Wal-
ters related further, the only person’s name she had heard
called outside the two parties talking (Smith and Hayes) was
Cartrette. Though Walters has confirmed Hayes said to
Smith, ‘‘Let’s go to the other building,’’ indicating the de-
gree of matched loudness in Hayes’ voice as well, Walters
has not denied Smith had been urging that action upon Hayes
even earlier.
General Counsel’s witness Holden recalled the incident
when Smith was in Hayes’ office in February. Hayes’ office
is located at the end of the hall; and, Holden’s office is lo-
cated directly across from Hayes’ office. Holden confirms
there was a lot of pretty loud talk; and she could hear Hayes
talking to Smith, and Smith talking back, but Holden (also)
could not tell what was said. Although Holden acknowledged
it was a pretty heated scene; and that she did hear a lot of
shouting, including some profanity from Smith, she could not
say Hayes was telling Smith to calm down, nor tell what
Smith had said about Cantrell (sic, Cartrette), as all she heard
was some loud voices and a lot of loud talk. Holden credibly
acknowledged and explained that at the time he really didn’t
want to hear the conversation, as it was pretty loud.
Ward recounts that he went on up to the office, to the
service representatives and gave them his paperwork. In
doing so Ward went down the hallway and made a right to
go by Hayes’ office, then on up to the service representa-
tives. Ward estimated it as probably 30 feet to Hayes’ office,
and, 60 feet all the way up to the front. As Ward passed by
Hayes’ office, Ward heard loud noises, which he described
as an awful lot of strong discussion going on, and people
upset. In passing Hayes’ office Ward heard Smith say that
he just couldn’t take it any longer out there under the
present conditions that he was working. Ward heard some
profanity, involving God’s name being taken in vain which
Ward stated also (without press of party) that he’d rather not
repeat.
Office Supervisor Walters recalled that outside of the (of-
fice) employees, there were two consumers in the building
at this time, one of whom she knew, and one who was a new
consumer member. Walters recalled one of the service rep-
resentatives had talked to the two consumers and reassured
them, though Walters did not hear the conversation. Ward re-
lates that when he went on up to the front, and gave his pa-
perwork to Souls, the service representative, there was a
member in her office that was real upset (over) what was
being said in the office. At the time up at the front lobby,
Ward could hear both Smith and Hayes. Ward heard Hayes
asking Smith to calm down and let’s talk about it, confirming
Hayes was also loud, from time to time.
Ward relates they told the member they had an irate mem-
ber in (which Ward concedes he even then knew was not the
fact), and they did so because they really didn’t want to relay
on to them (sic) that it was their employees that were out
of hand. After Ward gave his paperwork in, they walked out
the door seemingly satisfied, Ward then proceeded back by
Hayes’ office to maintenance department where Ward had
some more paperwork to do. As Ward went back (again) by
Hayes’ office Ward relates Smith appeared to be still upset
over the situation.
(3) The heated discussion as continued in Herring’s
warehouse office
Smith, with Hayes and Norris following, went directly to
Herring’s office in the warehouse, where they further con-
versed there alone with door closed. Hayes account is that
when they entered the warehouse, they went into Herring’s
office, which is the first office on the left on entry. Herring
wasn’t in the office. Smith was the first to enter the office.
It was either Norris or Hayes who shut the door. Hayes went
around to Herring’s desk (a steel desk with a wood veneer
top), and sat down. Smith did not sit down.
Hayes account is that Smith (again) exploded, just cursing
and carrying on, talking about the co-op, talking about Floyd,
but (still) very incoherent. Hayes recalled Smith was saying
that the co-op was just trying to screw everybody, all it’s
employees; that Floyd was a g— d— s.o.b. and nobody could
work for him, etc; and, that Smith continued on for a few
minutes. On another occasion, Hayes related that after a
minute, or less, Smith had picked up with both hands a big
commercial-type, real heavy, approximately 8-inch glass ash-
tray that was sitting in the corner of Herring’s desk; and,
Smith (then) brought it down on the desk so hard that Hayes
was scared it would shatter; and, that Hayes looked for glass
to come flying all over him, but it did not.
Smith admitted that during this conversation he had
grabbed a big yellow ashtray on Herring’s desk; had picked
it up in both hands and brought it down (but not from behind
his head), and asserts he stopped himself. Smith conceded
that it made a louder sound than laying it down; and, that
if he had slammed it, it would have shattered. However,
Smith didn’t; and, Smith has testified that Hayes had no rea-
son to be scared of him. Smith also denied his problem was
a violent temper. Rather Smith asserts his problem at that
time was when a grown man is harassed by a company, has
an emotional problem; and wants to sit down and cry. Smith
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has testified in that very respect, he had an emotional break-
down right there; and, he began crying, which is something
Smith states he rarely does.
Norris has confirmed Smith picked up the ashtray in two
hands; and, that Smith brought it down without slamming it.
Norris testified he didn’t think Smith was going to slam it;
nor did he worry it would shatter. Norris also confirmed
Smith had tears in his eyes; just broke down; forgot himself;
and was just about to cry.
Hayes admits there was no damage done to the ashtray or
the desk, but then related there was a very distinct loud
noise. Supervisor Coleman recalled that on February 28,
Coleman was standing inside the warehouse at the map room
at Whiteville. The map room is about two steps, i.e., 6 or
7 feet from Herring’s office, where Hayes, Smith and Norris
were. When they first went in, Coleman confirms he heard
a loud noise, which he described as being just like a loud
bang, like something had hit a table or something. Though
initially relating it didn’t really alarm him, on being returned
to the subject, Coleman then said he felt really nervous be-
cause he knew Smith was mad.
Admitting he was louder than normal, Smith told Hayes,
‘‘I’m tired of this. I’ve been to you. You don’t do nothing.
You have to move now. I just can’t stand it no more. You
can’t control your man.’’ Smith said, he (Hayes) had let
Cartrette harass Smith, and keep right on. Hayes knew what
was going on; and he just couldn’t work with Cartrette any
longer. Hayes needed to put Smith on another crew; and, that
would solve a lot of problems there. Smith otherwise admit-
ted he used some profanity, though Smith didn’t recall it be-
yond on cross-examination recalling he said, he was sick and
gl dl tired of it. However, Smith categorically denied
that Hayes said they needed to go to the warehouse, testify-
ing (convincingly) he was trying to get Hayes to go there.
Norris initially recalled Smith said he was tired of Floyd’s
shit, but had (said) nothing worse than that. But Norris later
acknowledged that Norris had previously said (in prior affi-
davit) Smith had said he was sick and damn tired of this shit.
Though then saying Smith didn’t say anything else like that,
Norris again generally acceded Smith had used some cuss
words that Norris couldn’t describe (sic, recall).
Norris however, has denied that Smith lost control again
(or a second time in Herring’s office). Rather, Norris relates
Smith spoke authoritatively and told Hayes his problems.
Norris corroborated (but only generally this time), Smith got
back telling Hayes what Floyd had done. Hayes let Smith
talk; and, Smith said that he needed, or he wanted to be
moved on the line crew. Norris has candidly affirmed Hayes
did very well at listening to them, which was the best thing
to do; and, Smith (eventually) calmed down.
Coleman recalled he heard Smith yelling, and cussing in
Herring’s office. What Coleman heard Smith say was, ‘‘I
can’t work with that son of a bitch (referring to Cartrette)
no more.’’ Coleman heard Norris trying to calm Smith down;
and, Hayes say, ‘‘Well, Doug, what is the problem?’’ Then
it quieted down a little bit, and Coleman (notably) heard
Smith say, ‘‘Ronald, if you will just take me off of that
crew, I’ll work with the line crew or anything, just to keep
from having to work with Floyd.’’ Coleman later reaffirmed
he heard Smith, when calmed down say, ‘‘Ronald, if you’ll
just take me off of Floyd’s crew, (he) said I’ll work with the
line crew or do anything you ask me to do.’’
Coleman has worked with BEMC for quite a while, and,
on cross-examination Coleman acknowledged that the men
use rough talk at times; and, that it was not uncommon.
Coleman personally doesn’t cuss men out; though he has
used a damn or something like that before. Coleman thinks
nothing of it if a man in a conversation uses profanity with
him; and also, if he hears someone else using profanity in
another conversation, it doesn’t really bother him a whole
lot. Coleman testified the only time Coleman gets offended
by profanity is if it is directed toward him. Coleman has
never used profanity towards, or cursed his immediate super-
visor. Coleman also confirmed if the cursing is in a tone of
voice that offended the supervisor, it is a violation of the
work rules.
Though Norris (and Smith) didn’t see Cartrette when they
went into the warehouse, I find he arrived there shortly
thereafter. Cartrette relates (with corroboration of Ward) that
he was in the warehouse, first in the breakroom (where he
heard nothing), and then in the warehouse lobby. (The
breakroom is about 40 feet away.) However, at best, what (if
anything) Cartrette acknowledges he heard when he went to
the lobby adds nothing to this incident’s account.
More notably, when back in the warehouse doing paper-
work, Ward observed Hayes, Smith, and Norris all come into
the maintenance department and go into Herring’s office.
Ward heard the same (as Ward has described it) old upset
over present working conditions between Smith and
Cartrette; and, statement Smith would not go outside and
work with Cartrette anymore. Ward stayed where he was for
a few minutes until he heard a loud sound, like, you know,
a desk or something had been hit, that upset Ward. Ward as-
serts that at that time Ward told Cartrette that he (Ward)
didn’t want to listen to it anymore. Ward went on back to
his own office. Ward stated it made him real upset that it
had got down to the point where people were getting abusive
to company facilities, just because we were upset and
couldn’t work things out. Ward’s and Cartrette’s accounts are
not wholly compatible.
It is reasonably clear of record and from the above, and
I preliminarily conclude and find that in registering his com-
plaint about Cartrette with Hayes, Smith did make some pro-
fane and vulgar statements of the order: (a) in Hayes’ office,
that this ‘‘gl dl Company is fl us; Cartrette is a
sonofabitch; and, I’m sick and tired of Floyd’s (Cartrette’s)
shit, or, sick and g d tired of it (Cartrette’s shit)’’; and, all
of which remarks were likely substantially overheard by cer-
tain office employees and/or consumer members; and, (b) in
Herring’s warehouse office, that Hayes knew what the
‘‘damn’’ problem was (below); that Smith was ‘‘sick and
tired of Cartrette’s shit, and/or sick and gl dl tired of
this shit’’; the co-op was just trying to ‘‘screw’’ everybody,
or all its employees; that Cartrette was ‘‘a g d s.o.b.,’’ and
nobody could work for him; that Smith couldn’t work with
that ‘‘son of a bitch’’ no more; and, all of which remarks
were not heard by any office employees, or consumer mem-
bers. I further conclude and find it is reasonably apparent
from the record that Hayes was not personally offended by
Smith’s cursing in the warehouse, or his office.
Hayes recalled the first question Hayes asked Smith in the
warehouse was, ‘‘Doug, tell me, what is the problem?’’
Hayes recalled very distinctly, Smith said, ‘‘You know what
the damn problem is.’’ Hayes describes (only generally)
385BRUNSWICK ELECTRIC CORP.
Smith went back into the routine about Cartrette and the co-
op. I credit Smith’s (essentially) corroborated account of
what he said about Cartrette continuing to harass him, and,
of Cartrette only just recently getting on Smith about the
Union and a Stevens quit, which is not explicitly denied by
Hayes.
Hayes has recalled that he otherwise said, ‘‘Doug, please
write me up a grievance on this. I cannot follow through
with it. I cannot investigate it without a formal grievance.’’
Hayes has related Smith refused to write Hayes a grievance
at that time. Rather, Hayes recalls Smith told Hayes that
Smith needed to go home for the day, because he was emo-
tionally upset; and Smith felt he could not continue the day.
Hayes told Smith he could go home for the rest of that day
(only). Hayes recalled initially that Smith had said, I’m no
good to the Company or myself the way I’m feeling right
now and the situation I’m in; and, I need the rest of the day
off. Hayes subsequently corrected with recollection it was
Wednesday, and Smith had initially asked for 2 days off;
and, that Smith had also said, ‘‘I need to go see a doctor.’’
In contrast, Smith testified he didn’t say he was going to
see a doctor. Rather, Smith then felt like, and Smith said at
that time that he may need to see a therapist; but he made
it clear he was not leaving that day for that. That was not
his intent in leaving. (Smith did not subsequently see a doc-
tor, or therapist.) Apart from Norris’ corroboration that
Hayes gave Smith the rest of the day off, Norris’
(non)recollection on days off discussion is not helpful.
Hayes has more fully explained the grant of only 1 day
off, and in doing so has effectively confirmed that Smith did
not say he was going to the doctor. Thus Hayes has related
he knew from a monthly printout that Smith was low on
‘‘unauthorized sick leave.’’ In that regard, Employer has
three types of leave: vacation, which has to be scheduled;
sick leave, for which you’re required to bring a doctor’s slip
back; and, 5 days of unauthorized sick leave, which is used
if the employee gets a headache, etc., and doesn’t really need
to go to a doctor but needs a day off. The employee can use
the unauthorized sick leave anytime, any place, with no ques-
tions.
Thus on its face inconsistent to the extent Hayes has as-
cribed to Smith a statement of going to see a doctor, Hayes
related Smith at this time was asking for unauthorized sick
leave and on checking, Hayes determined that Smith did not
have enough to take the 2 days off. I am wholly convinced
therefrom Smith had not asked for a day off to go to a doc-
tor, but rather the reference to a doctor was as Smith has re-
lated it, namely, only an aside comment that he might have
to go see a therapist, and with Hayes recognizing Smith’s
present request for the 2 days off as actually involving a re-
quest for 2 days of unauthorized sick leave. However, I cred-
it Hayes that Smith only had enough unauthorized sick leave
to take that Wednesday off. Hayes on that account granted
the rest of that day off only.
Hayes has initially asserted he emphasized that he would
love to have a grievance from Smith. Hayes later clarified
what Hayes asked was for Smith to file a grievance against
Cartrette, if Smith had problems with Cartrette, so Hayes
could investigate it, and follow up on it.
On cross-examination, Hayes testified Employer’s griev-
ance procedure works up and down. A supervisor can file a
grievance against an employee, and vice versa. Other Hayes
testimony more accurately shows Hayes’ spoke of BEMC
policy that provides for a supervisor’s discipline of an em-
ployee (down), and an employee’s grievance of a super-
visor’s action (up). Thus Hayes states when a supervisor dis-
ciplines an employee he has to follow the policy manual, as
does an employee in filing a grievance as part of the (same)
manual. Hayes states it was Smith’s responsibility to file a
grievance against his supervisor.
In regard to grievance discussion in Herring’s office, I
credit Norris’ recollection that Norris had also spoken to
Hayes about Cartrette. Norris told Hayes that he knew how
Cartrette was. Norris relates other fellows had trouble with
Cartrette in the past; and, it wasn’t (just) that Cartrette ex-
pects a lot from his men. Though Norris didn’t know
Cartrette’s problem as he never had worked with him, Norris
had discussed Cartrette with other employees that have
worked with him; and, Norris told Hayes that Norris knew
for (his concluded) fact Cartrette was hard to get along with.
Norris discussed that with Hayes. Then they broke up. Norris
relates Smith went home; and, Norris went back to work.
Norris estimated that they were in Herring’s office for 10–
15 minutes.
Hayes has not denied that in the warehouse Smith was
nearly tearful and simply broke down. I am wholly per-
suaded that at this time Smith was so upset at least by his
perception of Cartrette’s getting verbally on him in continued
unwarranted harassment of Smith on the job, including his
(determined) recent harassing statements on clearly protected
matters, to the point that Smith’s frustration thereover re-
sulted in the show of unplanned tears. In that regard, com-
pany witness Stevens has confirmed that on the day Smith
went tearing in, Smith had come back to Stevens, and Smith
said he (Smith) had showed his tail. (Leavitt has corrobora-
tively defined show your tail as a colloquialism that gen-
erally depicts an adverse situation, i.e., someone did some-
thing they didn’t particularly want to do.)
After Smith left, Hayes asserts he first discussed a (con-
tested) damaged door with Ward, below. Hayes next talked
with seven office employees, secretaries, service representa-
tives, cashier, etc., visiting each of their individual offices.
Hayes asked them if they had overheard the conversation that
went on in the office probably 30 minutes prior. After they
responded (I infer) that they had, Hayes apologized to all of
them on behalf of the co-op and himself for the language
used that morning; and, Hayes also told them that he would
try to see that something like this did not happen again in
the future.
During a (later) conversation with Harlene Walters, Hayes
asked Walters if there were ‘‘people’’ (members paying bills,
transacting business) in the office at the time. As a result of
Walters’ response, Hayes called two members that were in
the front office. Hayes asked them the same questions; and
then Hayes apologized to them for what had gone on. The
members did not testify; and, General Counsel has estab-
lished Hayes did not subsequently write the members a con-
firming letter. Nonetheless, I credit Hayes that he made the
inquiries, and the calls that he has said he did.
Though initially indicating it was after the meeting with
Smith that Hayes spoke to Cartrette, Hayes clarified that it
was after Hayes had finished in the office, that Hayes went
back to the warehouse and spoke with Cartrette who was
then (back) sitting in the breakroom. Hayes then discussed
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the situation with Cartrette, and found out what happened.
Cartrette told Hayes Smith had come to work late that morn-
ing; that Cartrette was under the impression that they were
having union negotiations that day, and that Smith would not
be there; but that at somewhere around 8:30, 9 a.m. Smith
had showed up for work.
Hayes recounts more definitively that Cartrette told Hayes:
that he had to discuss Smith’s work performance with Smith
that morning; that Smith had not been trimming around the
Poles, guy wires, telephone pedestals; and, Smith had not
been doing his job in the last few weeks, or months, but (no-
tably) with Hayes immediately correcting, he didn’t believe
that Cartrette had said how long; that Cartrette had carried
Smith around a fence to put him to work and he’d decided
that now would be the time to discuss with Smith the situa-
tion of Smith not trimming around poles and not doing his
job correctly; that he had no more than got the words out
of his mouth, than Smith exploded on him; that Smith said
Cartrette was treating Smith dirty and doing him wrong, etc.;
that (Cartrette said) Smith had just erupted into problems
(sic); Smith had lost it, and went to cursing Cartrette; and
that Smith had wheeled around and left.
Hayes also recalled Cartrette said that at some point Smith
had cursed Cartrette, and (as noted, unsurely) had called
Cartrette something like ml fl, or something to that effect.
(Hayes promptly stated, now, again, I’m not sure of that
statement; and, I was not there.) Hayes continued, Cartrette
said Smith whirled around in the truck and took off; that
Cartrette had no idea of where Smith had gone, or which
way he was headed; and, at Evergreen (City), Cartrette called
Hayes and learned where Smith was headed.
(4) The issue of the alleged damaged door
As earlier noted Smith responsibility for truck damage and
repair was not sustained. In first going to the office (i.e.,
after Smith passed through the warehouse on his way to
Hayes’ office), Ward recounts he noticed the back door ap-
peared to be damaged, because it wouldn’t close properly
like it is supposed to. Ward relates: it wouldn’t go com-
pletely to; it was like it was jammed; like the door had been
pulled open real rapidly; and it went back up against the
bricks. Ward asserts the door was bent from the top to the
bottom; and, Ward asserts the door had been working prop-
erly before Smith went through it.
On cross-examination Ward explained under his category
(classification) it is Ward’s responsibility to check the co-
operative’s doors, since, under his classification, Ward could
be responsible for just about any part of the maintenance of
the building. Ward acknowledged he doesn’t make any
records. If something needs to be repaired, they have a main-
tenance person that he tells if there is anything that needs to
be done; and then they follow through with it. In any event,
Ward asserts, it is like steps that he follows each morning.
Ward asserts he makes his maintenance check of the doors
he goes through in the morning as Ward completes his pa-
perwork.
Thus Ward relates he noticed the door was sprung; and,
the main reason (he noticed it) is, that is one door Ward
makes sure is locked and secured of the afternoon. Ward
later added that’s basically one of his responsibilities, to
make sure the doors of the warehouse and offices are se-
cured. By the door being ‘‘sprung,’’ he means the door had
a stopper; the door would go to a point, and, then it would
just bump; and it would be spaced out where it can’t go all
the way to be locked. Ward relates that he had kind of
picked up on the door, thinking maybe he could do some-
thing with it then, but at that time couldn’t.
In contrast, Smith didn’t recall slamming the door open on
arrival, but admitted that on leaving the building in which
Hayes has his office (going to Herring’s office in the ware-
house), Smith had slammed the back door, but Smith didn’t
know about busting it, warping it, or knocking paint off of
it. (Ward’s account of damage to the door notably would
place the damage as occurring well before Smith’s exit of the
building in which Hayes has his office, i.e., it was noticed
by Ward before he entered the office building and heard
Smith and Hayes talking in Hayes’ office.)
Hayes unequivocally confirms Smith as to when Smith
had slammed the door. Thus Hayes recounts that Smith
walked on down the hall, took the left to go out the back
door. Hayes confirms that the back door is a heavy metal
steel door (adding) with a recloser on it that supposedly
keeps it from going too far open and closes it back on it’s
own. Hayes recalled when Smith slammed that door open,
Hayes was approximately four to five steps behind Smith. In-
deed, Hayes asserts that he had heard it when it jammed
against the brick wall. Hayes also explained the door is inset
about 8 inches; and when you open it so far, then it hits the
corner of a red brick wall.
Norris (I find on or after March 5) asked Hayes for what
reasons was Smith suspended and Norris was given several,
namely: for insubordination; damaging company property;
and coming into work late. Norris asked what property did
Smith damage. Hayes said, you saw him slam the door. Nor-
ris said he didn’t. Norris went back and found no damage.
Hayes acknowledged there was no visible damage to the
door at that time that he saw, and he was right behind Smith
in walking out, though Hayes also said he did not turn
around and look at the door. Hayes did recognize that the
door had been slammed hard against the brick; and, he
thought about it. After Smith left (the warehouse), Hayes
went back to his office. When Hayes walked up to the door
to go back in, the first thing Hayes did was check the door;
and, he saw it was not closed good. The door had come up
against a jam and there was a little crack in between. Hayes
checked the door (further); and, Hayes looked down the side
of the door where it had hit the brick. There was a crease
down it from the top to the bottom, with brick dust on it.
Smith does not recall the door banging against the brick
so hard that the brick bent the door. Smith did look at the
door later. Smith’s understanding also was that Hayes told
Norris of the damage, and Norris investigated it; and, people
told Norris that the door was already tore up. Smith didn’t
believe he hit the brick with the door; and, he categorically
denies that he tore it up.
Norris confirms that when Smith left Hayes’ office, Smith
went through Hayes’ door, and a back door; that the back
door is a big metal door; and that Norris heard a boom,
which he described was just like a hard close. Norris other-
wise supports Smith as he has related that he didn’t hear the
door slammed and hit brick, rather, he (only) heard it closed
hard. Norris also confirmed that he inspected the door care-
fully, but not until 3 or 4 days later, after learning of it from
Hayes (as reason 4 stated by Employer for Smith’s suspen-
387BRUNSWICK ELECTRIC CORP.
sion, above). Norris observed there was no damage to the
door then.
Holden testified she heard the door slam that morning, at
approximately 10 a.m. (not twice). Holden went to lunch that
day at noon. She left by the door someone would use to
leave Hayes’ office to get to the warehouse. Thus, shortly
after noon, Holden had occasion to look at the back door.
Holden explained that her reason for doing so was that ear-
lier she heard Ward say that Smith had broken the back
door. Though she did not see Ward at the time, and she
didn’t know who Ward was addressing, Holden testified
firmly that Ward was in the hall; and, that Ward had said
Doug Smith broke the door.
Holden explained, in their office there is no insulation in
the attic, or above the offices; and, if you make a statement
in one office you can hear it all over the office. Holden testi-
fied that she knew that Ward had come up through the office
from the warehouse for some purpose, when she heard it. So,
being a curious person, when she went out the (back) door
to go to her car to go to lunch she had looked at the door
to see what had happened. Holden saw no recent damage to
the door, below.
Ward has denied making the statement that Doug broke
the door, and without seeming reference to any Hayes direc-
tion to him that a repair be made. Hayes in contrast recalled
that it was after Smith left and Hayes went back to his office
that Hayes asked Ward to check the door, confirming it was
about 10 to 10:30 a.m. However, Hayes stated (unsurely), he
believed he called Ward on the intercom, or, he may have
went back to the warehouse, then stating (even less convinc-
ingly) he didn’t remember exactly the correct way he did do
it. In any event, Hayes is clear he did ask Ward to check
the door, after Hayes’ return to the office when he had no-
ticed that the door wouldn’t close good.
In contrast with Ward’s earlier observance of damage to
the door (i.e., after Ward followed Smith through the back
door), Hayes’ asserts Ward didn’t tell Hayes anything when
Hayes asked Ward to check the door; and, to try to get it
to where it would at least close. On other occasion, Hayes
recollection was Ward did not mention it (neither Ward’s
claimed prior observation; or earlier attempted repair; or, a
Holden attributed Ward statement that Smith broke the door)
to Hayes, though Hayes hedges, things were a little hectic at
that time.
Hayes was also not sure whether Ward made the repair or
whether the fellow that works with Ward did. Hayes didn’t
know what happened on the repair of the door after that, be-
cause Hayes didn’t talk with Ward about that anymore. Once
Hayes told Ward about the door, it was Ward’s responsibil-
ity. Walters did not testify in regard to the door, beyond that
earlier noted that she did not say that Smith had slammed
the door on entry.
To Holden’s knowledge Ward had not made any repairs
to the door between 10:06 a.m. and 12 noon; and Holden tes-
tified that she wouldn’t think that Ward could have made re-
pairs and she wouldn’t have known it; if Smith had broken
a steel door. Holden also thought if somebody had worked
on the door, they would have known that they were there.
Indeed, Holden was categorical, that if the door was repaired
between 10 a.m. and 12 noon they certainly would have
heard something there, asserting, you can hear everything in
the office, including a normal conversation. Holden stated
that in fact, Hayes and she know that if they talk very loud
you can hear them on the telephone.
Ward subsequently recounted that he repaired the door two
different times that day. When he first observed that the door
was going (closing only) to a point and stopping, and
wouldn’t go on through, Ward asserts he tried to repair it,
but Ward was then unsuccessful. Ward described the door as
a 4-year old very, very heavy steel exterior metal door. Ward
relates that it was probably about 10:30 a.m. that day, Ward
went back and tried to repair it again; and, Ward asserts (ba-
sically), that Ward (again) just grabbed hold of both knobs
on both sides and picked up, just a minor adjustment. Ward
assertion of repair is compatible with Holden’s account in the
sense of effecting a noiseless and simple adjustment, and in
asserting that in making the repair he didn’t take any tools
and beat on it. However, Ward then related, the door will
now close to the point where you can lock it, but it still
won’t close like it ought to; and that conflicts with Norris
account. Ward asserts he didn’t completely repair it; and, the
door is noticeably different than it was before; and, that
(other than dents from the bottom to the top of the door),
there is now a rust streak from top to bottom.
Holden had earlier testified when Holden opened the door
at lunchtime, she looked at the door and she saw no (recent)
damage to the door. The only thing that she saw was an area
where paint had chipped off. Holden then rubbed it; and, the
paint was rusty. Cross-examination revealed Holden didn’t
discuss the damaged door with Smith at all; nor remember
any prior discussion of it with the Union, neither Ruff nor
Hatcher. Holden’s first mention of it was the very day of the
hearing with the General Counsel. (The door incident was
apparently not a subject covered in Holden’s prior affidavits).
Though acknowledging that it does not appear in her prior
affidavit, and that she did not get down on her hands and
knees and inspect the door, Holden has testified no less firm-
ly:
but I opened the door and I looked at the door. There
were no bricks broken. There were no hinges broken.
The only thing I saw, as I testified, was that there was
some paint popped off of the door and I did rub it and
my hand was rusty. I know that paint pops off of a
door and it wouldn’t be rusty if it had just popped off
the door.
Ward’s account of his own initial observance of Smith’s
damage to the door following Smith’s entry of the office
building is simply at major variance with (any) of the ac-
counts of Smith, Norris, and Hayes who place the door slam
and/or hard close later as Smith left the office building on
his way to the warehouse. Nor is Ward’s account of earlier
Smith damage to the door on Smith’s entry corroborated by
office supervisor Walters (or Holden) who was in position to
do so, if it had happened the way Ward has recalled it. I do
not credit Ward recollection or description of Smith causing
damage to the door on entry.
In contrast, Holden’s testimony on the door, despite appar-
ent noncoverage in her affidavit, was firm, remained inter-
nally consistent on extensive cross-examination; and, in her
description had the ring of truth to it. In short, I do not be-
lieve that Holden has made this testimony up out of whole
cloth.
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thus, I am convinced that on return to the office building
Hayes did then notice the back door which Smith, in passing
through had slammed open, was not closing completely, and
in telling Ward to fix it so it would, probably told Ward that
Smith had slammed the door; but that since Ward had al-
ready noticed that condition earlier, he has thus ascribed it
to Smith on entry; that, in any event, Ward’s earlier observ-
ance of the door jam simply decries Smith’s later causation
of it on leaving; there is no convincing evidence that Smith
did any damage to the door on entry; in any event, that Ward
did say to someone in the corridor that Smith had broken the
door, which Holden overheard; that upon Holden’s inquisi-
tive view of the damaged door at noon time, Holden found
no visible recent damage; that in the interim the jam, such
as it was, was cured by Ward’s very minor adjustment; that
Ward did not communicate with Hayes again about the ef-
fected repair, probably on that account; and, that Hayes, to
the extent he has ascribed door jam damage to Smith, on the
basis of Employer’s own witnesses’ testimony, Hayes is (at
best) in error, and at worst is shown to have used that door
jam condition in a discriminatorily opportunistic manner; and
to the extent they have sought to ascribe brick-caused rusty
door dent damage to Smith, that assertion is simply shown
demonstrably false by all the credited evidence.
(5) Other material events before suspension of Smith
on March 5
Smith relates on the next day, Thursday March 1, he came
in, and Hayes told him to go home, and rest; and Hayes
would see him back Monday. Hayes confirms he had another
conversation with Smith then. Hayes asserts he did not feel
confident with his investigation at that time. Hayes did not
feel like he had done a thorough enough job to make a deci-
sion on the issue. So, when Smith came in, Hayes met Smith
at 6 a.m. Hayes asserts he granted Smith that day off (which
was the rest of the week for Smith), with pay, because Hayes
did want to do a thorough investigation and find out what
had happened.
Smith did not recall anything said about an investigation.
I credit Smith that there was nothing said about a further
Hayes’ investigation at that time; though I conclude it is very
likely Smith would have suspected as much. As Friday,
March 2 was a regular day off for Smith, Smith returned to
work on the following Monday, March 5. Smith was then
suspended for a 40-hour period.
Hayes testified neither Hayes or Cartrette has authority to
fire Smith. Cartrette does have authority to write Smith up,
but would usually make that decision with Hayes. Cartrette
would check with Hayes, and, they would discuss it. Hayes
asserts that it would be Cartrette’s decision to make, as he
is the foreman of that crew. In contrast, Hayes relates that
in the interim Hayes was doing ore investigation. Hayes had
another discussion with Cartrette.
Hayes relates it was really basically the same thing Hayes
had just described only it went into more detail about what
led up to it as far as the trimming around poles and the re-
port Smith was sleeping on the job. Indeed, Hayes recounts
that they went out in Hayes’ car and looked at an area that
they had cut just a day or two prior to that. They observed
poles with the stuff still standing around it. There were some
telephone pedestals and guy wires that hadn’t been tried
around. Hayes relates, you could follow down the road and
see that it had not been done correctly behind the machine.
Hayes asserts that after Hayes discussed it with Cartrette,
Hayes went to Stevens, who is the heavy equipment operator
on the Kershaw, and whom Smith was actually (working)
with, to see if Stevens had witnessed what had happened be-
tween Smith and Cartrette that morning. Stevens had not.
Stevens said he was on his piece of equipment working a
distance down from them. The machine was making a lot of
noise and Stevens did not overhear any of it. Hayes talked
with Ward, the warehousemen, about Smith coming through
the office, and the truck sliding up in the pole yard, etc.
Hayes relates that later, on Friday afternoon, after Hayes
had gathered all of his facts together, Hayes called Shallotte,
thinking he spoke to Batten, but that it could have been
Dimery, and informed them of what had happened. (I have
no doubt Hayes spoke to Batten, and probably Dimery as
well.) Hayes got counsel’s number; and Hayes spoke with
counsel to make sure that he was legal on what he was going
to do.
(6) The warning discrepancies
Cartrette acknowledged he didn’t say nothing (sic) to
Smith about failing to report to work on time without expla-
nation, because Cartrette was under the impression that
Smith wouldn’t be at work, because Smith had told Cartrette
a week before that he wouldn’t report to work that morning.
Cartrette was present when the above warning was read to
Smith. Cartrette first asserted (simply incredibly) he didn’t
remember that one of the things that Smith was warned
about was for his failing to report to work on time without
explanation. When shown the document, and 4, Cartrette’s
answer then was, they wrote this, and Hayes read it to Smith;
and Cartrette didn’t read it or whatever. When Cartrette ac-
knowledged that he did initial it, he then asserted that he did
so (only) because he was in there on the meeting. I conclude
and find Cartrette did not initiate or prepare the suspension
and warning, or its reasons. I further conclude and find that
Cartrette could not explain BEMC’s reason 4 for suspending
Smith, and, with good reason.
Hayes acknowledged that Smith was not scheduled to
work on February 28 at all that day. Hayes then sought to
explain a use of this stated grounds for the discipline, on
basis if anyone is scheduled not to work, employer schedules
work load around that. It had been scheduled around Smith.
No one was looking for him to come in. They have had situ-
ations similar to this, e.g., where an employee, after he has
asked for a day off, finds out that he doesn’t really need it
off, he just needs a couple of hours, or maybe 4 hours.
BEMC policy has reservations for that. All the employee has
to do is to telephone and say, ‘‘Can I come back in?,’’ or,
‘‘I’m coming in.’’ Hayes asserts the employee has to notify
his supervisor that he’s coming in, but said a 30-second no-
tice is sufficient.
If done, the employee is allowed to come in and go back
to work and that way the employee does not lose a day’s va-
cation or whatever he may have been planning to take. But
that employee is required to call and let us know. Hayes ex-
plicitly asserted where Smith broke the rule was when he
came in, he came in late—period; with no explanation for
why. The problem with this assertion is the obvious one that
Employer already knew Smith had received permission from
389BRUNSWICK ELECTRIC CORP.
his foreman to take the day off for the purpose of attending
negotiations, and it was Employer who had canceled those
very negotiations.
Hayes continued, if Smith would have called Hayes or
Cartrette before Smith came in and let Hayes (or Cartrette)
know why Smith was late, and that Smith wanted to come
back to work, then more than likely Hayes could think of
very few situations where Hayes wouldn’t say, ‘‘Doug, yes,
come on back to work.’’ This assertion advanced is inher-
ently self-serving, and, is also wholly unpersuasive on the
facts. Indeed, Cartrette’s own statement of receiving a Smith
initial call for directions to jobsite surely would have quali-
fied under Hayes’ asserted rule of just calling to say he was
coming in. Reason 4 is (at best) untenable and pretextually
advanced (at worst) shown simply false.
Respondent countered that any apparent weakness with
note (sic, reason) 4 of the Work Rules in Hayes memoran-
dum of March 5 is (essentially) tempered because it was but
one of five stated grounds for discipline. But I have already
found that there was error, if not pretextual and/or false base
in asserted reason 2 that claimed that Smith had damaged
Cooperative property in violation of Work Rule 11; and, that
asserted reason 5 is also unconvincing because of Hayes’
clear condonation and approval of a Smith meeting with
Hayes, so Smith could present his complaint.
What enumerated reasons are arguably supported of record
then are reason 1 (insubordination to his supervisor) and 3
(use of abusive language to his supervisor) but both of which
in being commonly related only to the earlier Smith–
Cartrette conversation, are supported (at best) only to the ex-
tent of Cartrette’s (limited) account of Smith profanity said
to him, and then, only in context of determined unlawful har-
assment about the Union on the job, and the coercive and
bargaining futility statements that Cartrette had stated to
Smith, that were followed by an otherwise unit demeaning
statement that Cartrette had provocatively made in the same
conversation. Even the (I find) more supported ‘‘equally seri-
ous conduct’’ warned about, namely Smith’s display of loss
of control/temper and profanity appears overstated, if not
misstated, in being recorded made in presence of office per-
sonnel and consumers of the co-op.
(7) The job performance inconsistencies
Before final evaluation of the efficacy of the reasons ad-
vanced in defense of the alleged unlawful suspension of
Smith on March 5, I address certain other claimed inconsist-
encies and/or deficiencies raised by General Counsel in re-
gard to Smith’s purported poor job performance.
(a) Sleeping on the job
Smith denies sleeping on the job from time to time. Smith
acknowledged on occasion behind the wheel that Smith had
dozed off in the truck. Stevens later related he saw Smith
sleep on the job twice.
As to Smith’s asserted sleeping on the job, Hayes initially
stated that he found this out on the day when all this was
going on. On another occasion Hayes related that prior to
March 5, he did not know that Smith had been sleeping on
the job. When asked on cross-examination isn’t it true that
Smith had never slept on the job, Hayes responded he cannot
testify to that, but reasserted Cartrette had told Hayes that
Smith slept on the job. Hayes then acknowledged that from
March 5 through May 10, he did not take any steps to inves-
tigate whether Smith was sleeping on the job. When Hayes
(thus inconsistently) had acknowledged that he had never in-
vestigated it. Hayes then asserted that was the supervisor’s
responsibility. However, on cross-examination, in asserting
that Cartrette had come to Hayes and told Hayes Smith was
sleeping on the job as well as failing to cut the bushes and
trees properly, Hayes (additionally inconsistently) then ac-
knowledged sleeping on the job is an offense that Hayes
would take action about. Hayes conceded that there were no
further reports of Smith sleeping on the job. Incredibly, nei-
ther Hayes nor Cartrette ever spoke to Smith about sleeping
on the job.
Even apart from the above inconsistencies, Hayes admits
that Smith was not warned (above) or fired for sleeping on
the job (below). On weight of evidence above I conclude and
find that (at best) Hayes did not have any report of Smith
sleeping on the job at the time of the award of suspension
discipline on March 5; and, indeed, it is far more likely than
not, from what appears as the more credible evidence of this
record, Hayes simply did not have Cartrette’s report of Smith
sleeping on the job (e.g., from Stevens) before Smith’s dis-
charge.
(b) Contended improper job performance
Cartrette more modestly has asserted his main problem
with Smith was Smith wasn’t doing his job correctly.
Cartrette said he noted Smith had been lax in performing his
job from the time when the union negotiations began in late
November or December, a period within which, with one
night exception, parties were conducting negotiations during
the workday. Though Cartrette reaffirmed Smith had per-
formed pretty badly for 2 or 3 months, Cartrette admitted he
did not warn Smith at any earlier time about Smith’s im-
proper job performance.
Cartrette next asserted that he had talked to Hayes about
it, on and off. When asked, if Employer had always resolved
(on such occasions) to let Smith just keep working the way
Smith wanted to work, Cartrette responded, that’s the way it
looked. On redirect examination, Cartrette then related that
he did not warn Smith more often about his work perform-
ance, because everytime he’d try to talk to Smith, Smith
would blow up and do like he did. Cartrette asserted that
Smith was just the type person Cartrette couldn’t talk to.
However, Hayes has contrarily testified that Cartrette had
never told, or even insinuated to Hayes that Cartrette could
not control Smith; and, that Cartrette had just made Hayes
aware of the fact that Smith was not doing his job correctly.
To the contrary, Hayes says he would just say, ‘‘Floyd,
you’re his supervisor. Look after him and make sure he does
his job.’’
In apparent intended support of Cartrette otherwise, Hayes
has asserted that he had talked to Cartrette about Smith’s
work performance prior to that several times. But when then
pressed for dates, Hayes was not sure how many times he
had previously actually done so. Hayes then asserted he
didn’t make records of it, stating, because it was not some-
thing that he needed to do. But Hayes had made prior note
(only) of the earlier Cartrette January 17 report on Smith’s
exhibited bad attitude, recorded as to job and BEMC. More-
over, Hayes conceded on the day when Smith came in and
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complained about Cartrette, Hayes didn’t say anything to
Smith about Smith’s (recent or other) work performance.
Hayes has acknowledged that as overall manager, Hayes
shouldn’t allow an employee to stop doing his job over sev-
eral months. In then asserting that in this situation maybe he
did, Hayes raised in defense of his inaction the adage that
hindsight is 20–20 and by that Hayes meant maybe Hayes
had let things go further than they should have before he did
react, because, again, Smith is a very likable person: and,
Smith was a very good worker when he came to work at
BEMC. Hayes added, as a working (essentially) mentor had
once told Hayes, you should give a person all the rope you
can and let them use it to either climb with or hang them-
selves; and Hayes guessed that’s what he was doing, and
hoping Smith would climb with it.
This claim or working adage would have had more viabil-
ity if it were not accompanied by a suspension of Smith for
a week on the basis of a number of listed supporting reasons
that were shown substantially not well founded, indeed,
weakened to point of more showing of their pretextual or
false nature.
Hayes related that Cartrette informed Hayes that Smith
was not doing his job like it should be; that Smith was not
cutting around the poles, which was very visible when Hayes
investigated it thereafter in the field before Hayes awarded
the suspension. As noted, Cartrette has asserted Stevens had
recently brought that complaint to him, though Cartrette
knew it as well. Before final evaluation of the suspension of
Smith on March 5, I address Employer’s reliance on the pur-
ported recent Stevens stated concern to the point of quitting.
(c) Stevens support
According to Stevens, Smith was a good worker; and, Ste-
vens thought of Smith as a good friend. At the outset I note
Stevens initially asserted it was in the year prior to Smith’s
discharge (roughly coextensive with the period of Smith’s
union activity) that Smith’s work performance slowed down.
Stevens next related that shortly before Smith’s discharge
(in May), Smith was not shrubbing bushes around guys and
poles like he had been; and, Smith was just liable to sit in
the truck half a day, or just ride around. Stevens also recalled
that on occasion Smith had told Stevens that if Smith didn’t
take it easy or sleep half a day that Smith wouldn’t be justi-
fied, he would be losing money. Though Stevens did not re-
call when Smith made the latter statement, he estimated it
was a couple of months, or more, before Smith was dis-
charged, thus (essentially) during the negotiations held earlier
that year.
Stevens generally asserted that he was scared and worried
that he would lose his job on account of Smith not doing his
work properly, because when Foreman Cartrette wasn’t there,
Stevens was supposed to be over Smith. Stevens initially as-
serted he was scared if Smith didn’t do that there (sic,
Smith’s groundsman’s work) they would fire him (Stevens),
or, that it would go against Stevens. In contrast with claimed
friendship with Smith, Stevens remained unsure whether Ste-
vens had ever spoken to Smith about Smith’s job perform-
ance either before or after any Stevens’ purported (recent)
concern about his job was stated to Cartrette; or even after
Cartrette recently talked to Smith about Stevens being about
ready to quit because of Smith’s failure to do his work.
Indeed, Stevens was not sure if Stevens had ever talked
to Smith directly about Smith’s work performance. Nonethe-
less, Stevens has asserted that he went to Cartrette and asked
if Cartrette would talk to Smith about it, because Stevens
was scared that if he didn’t (with) Smith’s job not being
done like it was supposed to be, that it would be on Stevens,
and Stevens didn’t want it on him; and, Stevens wanted to
clear himself. However, on other occasion Stevens testified
he guessed he told Cartrette that he needed to talk with
Smith and get Smith straightened up so it wouldn’t be on
Stevens.
Stevens asserts that he was worried about being fired, and
as a result, Stevens told various people that he wanted to
quit. Stevens relates that he didn’t really want to quit; and,
he didn’t really want to get fired; he just wanted to keep his
own record clean as a worker. However, Stevens has also ac-
knowledged that he had previously told Smith that Stevens
was ready to quit because of Cartrette (and, Hayes con-
firmed Smith had told him that earlier).
Stevens had held that view apparently since even before
Union activity. Stevens recounted an occasion, which he
thought was before the union activity, where they were
working on the machine (radiator) out there; and, Stevens
tightened up a water hose. Though leading into subject with
asserted reckoning he had just had a bad day or something,
but didn’t know, Stevens then said that Cartrette told Stevens
he had tightened it too tight. Stevens didn’t think you could
tighten one too tight, but Cartrette loosened it up. Stevens
otherwise generally testified that Cartrette is a difficult man
to work with, because he’s just got some ways about him.
Stevens explained Cartrette’s liable to tell you we (are) going
to do this this way, and when we get out there on the job
we’ll do it another way, and (as a result) you stay a little
confused; and you never know what to expect.
Stevens acknowledged that Smith didn’t like how the
Company was paying. At first Stevens asserted that he didn’t
know what Smith had said about that. However, then Stevens
acknowledged that Smith had talked to Stevens about the
Union on the job; that they would just talk about what went
on in negotiations; and that Smith had said, we were going
to go for all or nothing (or none), meaning to Stevens (all)
the money that they was asking for.
Though initially denying it, Stevens in the end has also re-
vealed his own strong animus to the Union. After claiming
that he was not against the Union, which he initially said had
its good and bad points, Stevens then said, this union stuff
has caused a lot of friendships to be busted up and every-
thing; and he just don’t like that; it just worried him. On
cross-examination Stevens further testified that before the
Union was certified as exclusive bargaining representative of
the unit the atmosphere was one easier to work in for him,
in that people were friendly to each other; and, everybody
would laugh and cut the fool, and joke with each other, in-
cluding Foreman Cartrette sometimes. Stevens has acknowl-
edged that since the Union came in Cartrette had changed;
and that (inconsistent with lack of Cartrette oversight of
Smith’s work performance for any such substantial period of
time) Cartrette’s been a little tougher on everybody.
Perhaps most revealingly in the end, Stevens has stated
that the reason that within the past 5 months Stevens had
spoke of quitting his job, was mainly about everybody being
busted up. Stevens explained: Everybody’s not united and
391BRUNSWICK ELECTRIC CORP.
everything together like they used to be. There is a dividing
point. You’re either in the Union or you’re not. It’s like
there’s two different sides there. Though Stevens stated he
did not want to come here today, as he is a friend of
Smith’s, Stevens has acknowledged that he really has been
unhappy since the Union has been in BEMC; and, that he
did not want to be a part of the bargaining unit. Indeed, Ste-
vens acknowledged that he wrote a letter to BEMC request-
ing his classification be withdrawn from the bargaining unit.
In contrast, Stevens acknowledged Smith was always talking
about what the Union can do for Stevens; and, when Stevens
thought of the Union at BEMC, Stevens sort of thought of
Smith.
Analysis
In the above circumstances, it seems inconceivable to me
that Cartrette would not have mentioned Smith’s sleeping on
the job immediately to Hayes, if such had then been reported
to him by Stevens; and similarly inconceivable to me that
neither Cartrette nor Hayes would not have thereafter (at
least) talked to Smith about his reported sleeping on the job.
However, even apart from when (more probably) unit em-
ployee Stevens may have told Cartrette that he had observed
Smith sleeping on the job, Hayes has unequivocally related
that in his additional investigation, Hayes went out with
Cartrette and observed the sites of Smith’s (purported) re-
cent poor job performance the workday before Hayes defi-
cient reasons. Yet the warning is silent thereon. Not without
foundation does General Counsel argue Employer’s failure to
address Smith’s purported poor job performance in its warn-
ing confirms the overall pretextual nature of the entire warn-
ing scenario.
Thus sleeping on the job aside, only then the more
strangely does the suspension and warning (at outset noted)
not only not include any reference to: (a) Smith’s poor job
performance that had purportedly brought on Cartrette’s con-
frontation with Smith that day to begin with; but (b) also has
no reference to it despite it being the subject of a personal
inspection made by Hayes but the day before, that was ac-
complished by Hayes with the very purported purpose to as-
sure a thorough investigation, and with improper perform-
ance of groundsman work then purportedly appearing very
visible to Hayes, but which has remained unstated, while
weak reeds of reasons for the suspension are advanced.
This is simply far too strained for my acceptance. To the
contrary, I presently conclude and find, that whatever may
otherwise be determined of the issue of a nondiscriminatory
base for Employer’s warning of March 5, a job performance
deficiency in Smith wasn’t then any part of it. The absence
of such a reason in the warning is thus to be more reason-
ably accounted for on the basis that Hayes, after his recent
investigation in the field, didn’t regard Smith’s job perform-
ance as then an issue for discipline. To extent Employer has
now advanced that it was then under active consideration,
and meritorious, but not made part of the warning for some
reason altruistic to employee Smith, the same is more readily
apparent as but false explanation for an action not then
taken; and, in my view, more now explainable as a post facto
attempt by Employer to blacken Smith’s general job per-
formance of that time for still other background purpose.
In any event, when the reasons advanced by an employer
in support of a claimed nondiscriminatory suspension of a
leading union advocate, are shown, as they appear here, in
large measure as not only weak and inconsistent, but as
being in significant measure pretextual and false, and, as
here, are accompanied by other shotgun claims that have fall-
en by the wayside, whether only in the end upon a consider-
able review (e.g., poor job performance, sleeping on the job,
etc.), or did so early and relatively more easily (truck dam-
age and request for time off to see a doctor; or, antedate
prior good evaluation (e.g., advancement of an alligator cap-
ture incident, displeasing to Batten), the finder of fact is enti-
tled to look elsewhere for a real motivating reason for the
discipline, without need of further addressments, Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
This is not a case of reasoned employer discipline for
Smith’s loss of control in the presentment of his grievance
that offended others. I am wholly convinced on the basis of
the above inadequacies, inconsistencies, pretextual and/or
false nature of the other reasons advanced in support of the
suspension, and considerations of other evidence noted above
(and below), that the real motivation for the suspension of
George Douglas Smith on March 5 was in fact
discriminatorily tainted, if not discriminatorily based; and, in
either event, the suspension discipline was in violation of
Section 8(a)(3) and (1) of the Act.
(8) Smith’s related grievance filed on March 4
Hayes didn’t know what kind of grievance Hayes expected
Smith to file; adding, that was Smith’s decision to make.
Hayes asserted that from what Smith had told Hayes it was
because Smith just couldn’t get along with Cartrette. Hayes
needed to know, in writing, why Smith couldn’t get along
with Cartrette, so Hayes could follow up on it. Hayes asser-
tions fail to address clear import of Smith’s account of
Cartrette’s discriminatory conversation as formally declared
in the grievance that Smith filed.
The grievance filed by Smith is dated March 4, and states,
‘‘On 2-28-90 Floyd Cartrette made comments and statements
to me that were both personally upsetting and violations of
labor laws.’’ (To that extent, it is clear that Smith’s claims
in those respects are not of recent fabrication, but rather were
timely raised to his Employer for its objective review.)
Smith proposed for company action to adjust his griev-
ance, ‘‘I wish to be moved to another Dept. Floyd has no
respect for me or other emplys [sic]. I think it would be bet-
ter for all concerned if we were seperated [sic]. It is thus rea-
sonably supported that Smith’s above credited testimony of
Cartrette’s statements to Smith (i.e., that had unwarrantedly
demeaned both Smith’g work performance and the qualifica-
tion of Employer’s first-class linemen), were additionally not
of recent fabrication. Indeed, Smith’s grievance presented
Smith claim that Hayes had been aware of the problem for
some months; and, that Hayes had already talked to Smith
and Cartrette.
Batten confirmed Smith filed that grievance (R. Exh. 8)
with Batten: and, that Smith had asked that he be transferred
to another area of work. Batten states that there were no va-
cancies into which Smith could be transferred at the time.
The General Counsel has established Batten answered the
grievance without any reference to vacancies. Rather, in
respose (next), Batten said Smith’s attitude to BEMC was his
problem; and, ‘‘I think that you should stay in your present
job and continue to work on your relationship with Floyd.’’
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Batten has acknowledged he never did tell Smith that Batten
couldn’t transfer Smith because there was no vacancy. Batten
then stated (in clear afterthought), all job vacancies are post-
ed on the bulletin board; and there were no jobs posted, so
Smith was aware of that, as well. On March 30, Batten
issued his final written ruling as follows:
I have carefully reviewed the facts and circumstances
surrounding your recent event with Floyd. I understand
that Mr Hayes has talked to you and Floyd about better
cooperation. My information indicates that you and
your attitude about BEMC is the primary source of
your problem. Transferring you to another job will not
be the solution. I think you should stay in your present
job and continue to work on your relationship with
Floyd. Let me know how this progresses.
Batten testified that Smith never came back to Batten to
let Batten know how Smith was progressing in his relation-
ship with Cartrette. (Hayes also inquired of Smith how things
were going, though seemingly after January 17 discussion. It
is clear (neither) Batten (nor Hayes) addressed the known
union advocate Smith’s grievance claim that Cartrette was
involved in the conduct in violation of labor laws, as has
been determined herein. However, I conclude otherwise as to
any argument by General Counsel as to job transfer.
(9) Smith’s request for transfer
As noted, Smith and Norris (Hayes and Coleman) con-
firmed that Smith, who was a groundman for heavy equip-
ment or right-of-way, had asked Hayes to be moved to a line
crew. It is clear that he formally did so in grievance filed
with Batten.
Herring is the supervisor of construction in Smith’s dis-
trict. Three line foreman, each with his own crew, report to
Herring. (The foremen are: Mick Duncan, Coleman, and
Etheridge.) Although Norris hadn’t worked out there (on line
crew), Norris stated his understanding was Smith could start
out doing a groundman’s job on a line crew, and learn the
ropes. Norris believed that at the time the start pay for both
was the same, $5.25.
On the matter of job filling or transfer, Hayes has re-
counted that hiring is from within as much as possible. The
Company’s policy on transfers from job-to-job is that any-
time there is an opening in any position, it’s posted for 5
days on the bulletin boards in all district offices, main office,
and all offices. Hayes has testified (essentially with corrobo-
ration of Batten, and without contradiction), that to his
knowledge there are no transfers without a job opening.
When Smith asked Hayes to transfer him, there were no va-
cancies in any area at that time. All vacancies are posted on
the bulletin board; and, Hayes thus knew there were none
available. (Complaint does not allege that Smith was
discriminatorily denied a job transfer.) In any event, I credit
Batten and Hayes that there was no open job open in line
crew at the time to which Smith could have transferred.
There remains job cross-training.
Hayes has relatedly also stated, Smith worked on
Cartrette’s right-of-way crew as a heavy equipment
groundman; and, that if there was an opening, Smith could
have applied, and been transferred to a line crew as a
groundman and cross-trained, which usually is for a month,
before return to his regular job. Coleman adds cross-training
was pretty common at the time; and he confirmed cross-
training wasn’t done through job vacancies. According to
Coleman, if Smith had been selected to cross-train into an-
other crew, somebody would have probably just asked that
Smith be able to go into another crew and work for awhile
so that Smith would be familiar with some of it. If any em-
ployee was displaced, they would just swap them to another
crew. Indeed, Coleman recalled that at one time, every 6
months, they would take a man off of each crew to work on
different crews.
Hayes confirmed that cross-training is not a job transfer.
In that regard Hayes explained however, you do not take a
groundman and train him to be a lineman. There are several
steps in between. There is a right-of-way crew and a line
crew. A groundman on each one of those crews are
groundmen, but they are entirely different jobs; and they call
for different types of work.
An apprentice lineman, or line foreman can do right-of-
way work, because he was trained in it back in his earlier
days. But a groundman cannot do linemen’s work. They can
cross-train employees within those areas; but safety is their
main concern, because you can get killed just like this
(quickly). Hayes has testified that he didn’t transfer Smith
for cross-training (to get Smith temporarily away from
Cartrette for even that period of time) also because he
couldn’t get anyone to transfer into heavy equipment right-
of-way crew, naming Long as one he had asked, and who
had refused.
In that regard however, other Coleman testimony revealed
performance of even more temporary cross work on line
crew was not that extraordinary. Thus, Line Foreman Cole-
man acknowledged that he had worked Smith before, on a
slack day, though not in cross-training period. Coleman con-
firmed with regard to heavy equipment crew (including
Smith), ‘‘if their machines are tore up or something like that
and they have an extra day, and if they are not taking off,
then they come out there and work with us (line crew),
whether it is on work overhead, or underground, or trimming
trees, or whatever.’’ Coleman acknowledged they had
changed members of a crew pretty informally, based on work
(need), without problem. While the argument is deemed un-
necessary to support the violation found, as noted (above),
Coleman has testified that he heard Smith say that he would
do anything, if Hayes would take him off Cartrette’s crew.
The notice provided to Employer from Smith’s grievance
filed on the now determined Cartrette violation of labor laws
establish that Employer had timely notice of Smith’s claim
in that matter, and Employer’s failure to address the same in
its answer to Smith’s grievance appears further supportive of
the violation found. However, in light of Hayes’ apparent
reasonable attempt and stated inability to make cross-training
available to Smith, the failure of the employer to afford
Smith cross-training as a groundman elsewhere is not as sup-
portive, though such had been commonly done for the other
right-of-way crews in the recent past, with apparently some
undesired transfers affected.
4. The alleged unilateral changes in unit positions made
in violation of Section 8(a)(5) and (1)
The complaint alleges that in violation of Section 8(a)(5)
and (1), on or about March 1, Respondent Employer unilater-
393BRUNSWICK ELECTRIC CORP.
ally, without notice to or bargaining with the Union, re-
moved the duties of the drafting and mapping coordinator,
and the load management coordinator from the above-de-
scribed appropriate unit.
a. The (new) enineering assistant supervisor position in
comparison with drafting and mapping coordinator
unit position
General Counsel’s witness, Judy Russ, is presently em-
ployed by BEMC at its Shallotte Headquarters Office as a
service coordinator under the supervision of Operating Man-
ager Bobby Gore. Russ shares an office with Beryl Hall (the
former drafting and mapping coordinator).
Russ identified General Counsel’s Exhibit 8 as the job va-
cancy for an engineering assistant supervisor position that
was posted probably about a week before the listed due date
of March 15 (thus about March 8). That notice of job va-
cancy stated there was now an opening for the above-engi-
neering assistant supervisor position and that applications
from any person were being accepted for it. A copy of the
position description (job specification) for that vacant posi-
tion was attached. Russ applied for this position. Hall was
awarded it.
Russ identified General Counsel’s Exhibit 10 as the job
description for the drafting and mapping coordinator, that
Russ had received from Nancy Dimery, BEMC personnel di-
rector. Comparison of General Counsel’s Exhibit 10 with
General Counsel’s Exhibit 8’s attachment of the position de-
scription for the new engineering assistant supervisor posi-
tion reveals that the new position description of engineering
assistant supervisor contains a description of (essentially) the
same job duties as are contained in General Counsel’s Ex-
hibit 10’s job description for the drafting and mapping coor-
dinator. General Counsel’s Exhibit 8’s job description for the
engineering assistant supervisor however contains certain
educational requirements and certain supervisory duties not
found in General Counsel’s Exhibit 10.
Thus, General Counsel’s Exhibit 8 reflects that the engi-
neering assistant supervisor is to direct drafters, and report
to the systems engineer, whereas the drafting and mapping
coordinator reported to the manager of operations and di-
rected no one. General Counsel’s Exhibit 8 also shows the
engineering assistant supervisor with certain assigned
responsibilites in a preparation of that position description
and the position descriptions of all personnel reporting to
that new position; and, in assisting in interview and rec-
ommendation for the hire of such employees (in accordance
with established policies and procedures), as well as in their
performance appraisal, and required counseling.
Additionally the new engineering assistant supervisor posi-
tion required educational requirements of a B.A. or B.S. de-
gree with a background in graphic design, and 1-year experi-
ence and training in Auto Cad mapping and associated soft-
ware (as compared with the drafting and mapping coordina-
tor’s requirements of only a high school diploma, and, only
a declared preference for additional training in drafting and
drawing). Experience, job knowledge and abilities, and skills
requirements of the two positions appear to be essentially the
same.
b. The (new) load management supervisor position as
compared with the load management coordinator
unit position
Russ also identified General Counsel’s Exhibit 9 as a job
vacancy for a load management supervisor position that was
posted at the same time. Employer awarded the load manage-
ment supervisor position to Terry Stevens (former load man-
agement coordinator).
Russ identified General Counsel’s Exhibit 11 as the job
description for the load management coordinator, that Russ
similarly received from Demery. Comparison of General
Counsel’s Exhibit 11 with General Counsel’s Exhibit’s 9’s
attachment of position description for the new load manage-
ment supervisor position reveals the new position description
of load management supervisor contains a description of (es-
sentially) the same job duties, and educational requirements,
as are contained in General Counsel’s Exhibit 11’s job de-
scription for the load management coordinator. However,
General Counsel’s Exhibit 9’s job description for load man-
agement supervisor contains certain required experience and
supervisory duties not found in General Counsel’s Exhibit
11.
Thus, although either load management position is to re-
port to a manager of operations and/or systems engineer, the
new load mangement supervisor is to direct (unit) electronic
technicians (whereas the load management coordinator di-
rected no one). General Counsel’s Exhibit 9 similarly shows
the load management supervisor with certain assigned re-
sponsibilities in preparation of that position description and
the position descriptions of all personnel reporting to that
new position; and, for assisting in interview and rec-
ommendation for hire of employees (in accordance with es-
tablished policies and procedures), as well as in their per-
formance appraisal, and required counseling.
The new load management supervisor position now re-
quires 3 years’ load management operation experience; and,
that job knowledge be able to support existing computer soft-
ware and ensure its adequate function, as well as now (ex-
plicitly) have a broad working knowledge of switch installa-
tion and maintenance of same, and, have effective knowledge
of the system, and its parts. Otherwise, education, experi-
ence, job knowledge and abilities, and skills requirements ap-
pear to be essentially the same.
c. Employer’s economic defenses
(1) The new engineering assistant supervisor v. former
drafting and mapping coordinator
Leavitt has testified as to in-house engineering develop-
ment background in explanation for the Company’s creation
of the engineering assistant supervisor. The Company hired
Louis Shaw as a licensed engineer or a degree engineer for
the system in April 1989. The co-op hadn’t had a system en-
gineer before this.
This engineer hired in April 1989, was never in the unit.
(The election was September 19, 1989.) The engineer is over
(in charge of) that department which (now) includes the
(new) position of engineer assistant supervisor. Leavitt con-
firmed the Company has hired Beryl Hall, the former draft-
ing and mapping coordinator, to fill the engineering assistant
supervisor position.
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Leavitt explained the engineering assistant supervisor
works together with the engineer in developing computerized
mapping, using auto cab [sic, cad]; tying that mapping to-
gether with computerized engineering packages; and, also de-
veloping special equipment inventories that BEMC needed.
The engineer in charge has other responsibilities. Leavitt as-
serts the intent is the assistant engineer will have supervisory
responsibilities over a drafter when hired.
Leavitt relates the co-op has been growing significantly
over the last 15 years, though immediately correcting there
was a little bit of a slowdown over the last 2 years, but then
reasserting that slowdown has been in services, not in the
system size. Leavitt recounts that the system has grown con-
tinually somewhere between 5 to 10 percent each year.
In explaining the initial hire of the engineer, Leavitt as-
serts that there had been a need for a system engineer for
a while. They had been contracting out their engineering
services in the past. They were pretty comfortable with that
situation for some of their distribution work, but they were
having more and more of an emphasis on transmission, state
of work, doing some long-range engineering studies.
Leavitt explained that Jim Word, REA accountant, had re-
quested that they get a long-term engineering study com-
pleted. In that regard, Batten testified that BEMC borrows
money from the Federal Government. Presently, it has about
$35 million of loans outstanding through REA, a branch of
the United States Department of Agriculture (USDA). BEMC
needed to get that data together (first) to evaluate that data.
Engineering department was going to do a lot of that. Leavitt
asserts Engineering (seemingly transmission) was also going
through a retirement and a transition, so they also wanted to
beef up their transmission staff. Another consideration was
there were computerized engineering packages of the co-
operatives that had become very important.
The computerized packages were a way to look at voltage
drops and make some very important calculations. Moreover,
the development of a software auto cad/cam (automated
drawing, or computerized drafting program) had begun to
play a big part of the whole specter of computer mapping,
from system to truck maps of power lines, for servicemen
and operations people to use. New technology in mapping
gave the Company an opportunity more and more to develop
almost on line real time view of their system, for a better,
and more timely evaluation of their system, as developed in-
house. The computerized packages would also help BEMC
to do needed engineering analysis, almost on a regular daily
basis.
As part of their drive toward getting better engineering and
a better view of their own system, by developing the maps,
they looked at the cad situation, and got together a group
called Inter-tech out of Atlanta along with in-house computer
installation they were having at this time. They selected the
best mapping and cad packages that they could find (over 4
years). They then determined that they needed someone with
expertise in the area of computerized cad mapping, more
than just a manual drafting. Thus, they created and posted
the job position of engineering assistant supervisor for that
duty. They had internal applicants for the job. Beryl Hall (the
former drafting and mapping coordinator) was hired and put
into that job.
Leavitt acknowledged the old position of drafting and
mapping coordinator is at this point just sort of dormant.
There’s no one in it; as there is not a need for it right now.
Whether there will be a need for it, depends on expansion,
Leavitt asserting there possibly could be. However, Leavitt
has asserted that under the engineering assistant supervisor
position, they still needed someone to do digitalized drafting,
manual routing that they had done before. Leavitt related
they have recently posted a position for a drafter within the
last few weeks, with applicant interviews asserted to start in
the near future.
(2) The local management supervisor v. load
management coordinator
Leavitt testified that BEMC buys power from their power
supplier NCEMC. BEMC is billed on three facets: demand;
energy purchase; and wheeling charge. The cost on that bill
has changed significantly over the last 10 years. Energy pur-
chase used to be the largest part of the bill. Now it is de-
mand. Demand accounts for about 60 percent of BEMC’s
bill each month. Leavitt asserts relatedly that the need for
load management has thus increased in recent years, because
of the cost of the KW charges per demand. Cost in the last
10 years has increased somewhere around 100 and some per-
cent.
In the last 6 months BEMC put together a position called
load management supervisor. That position has responsibility
for monitoring load anagement and supervisory data acquisi-
tion (SDA) (involving) an ability to look at the actual voltage
position of all substations BEMC has on line. With such ac-
tual data back in-house, BEMC can do some management of
voltage at that point.
Leavitt asserts BEMC has the possibility of being able to
save the sum of $200,000 a month by control of their peak
demand. Leavitt explained the system is taxed on the basis
of the highest point of demand for power during a 30-day
period. If BEMC can shave that (peak) by what their load
management capabilities are, they could roughly save
$200,000. Thus far they’ve saved a significant amount of
money, both in their cooperative and on a statewide basis.
Leavitt relates that it will also save BEMC some future rate
raises with the Federal Energy Regulatory Commission
(FERC).
Demand is defined as the highest point, or the highest
peak load at one point that BEMC has at anytime during a
30-day period. A load management system is (essentially) in-
volved with putting on individual on/off switches on water
heaters and air-conditioning, in order to shave the peak so
BEMC doesn’t have to pay the billing charges over a certain
(high) point. If BEMC can keep that (peak) down and figu-
ratively speaking fill the valleys, then, BEMC doesn’t have
to pay as much for demand, and it can get the same KWH
energy sales.
Leavitt stated on direct examination that the position of
load management coordinator has become more and more de-
manding over the last 3 years; but clarifying (even earlier),
really since the inception of the load management program,
which it seemed to him was begun in 1983, with statewide
discussions in 1984. In that regard, Leavitt related that after
a few of the counties had initially experimented with load
managemaent, 27 of 28 co-ops went together on load man-
agement to make the purchase of load management cheaper
and simpler. NCEMC helped BEMC to put together a load
395BRUNSWICK ELECTRIC CORP.
management package so that BEMC could coordinate its de-
mand.
BEMC has the arrangement directly with NCEMC. Basi-
cally, NCEMC will bill BEMC for its peak demand. If
BEMC can shave its coincidental peak demand, then, BEMC
saves money, which in turn directly saves NCEMC money
on their power bill with CP&L or Duke or whatever. In fact
NCEMC has a direct tie line into two of BEMC’s stations;
and, NCEMC thus controls (apparently a statewide) load
management from Raleigh.
BEMC however has to make contact with a power supply
division of NCEMC. Previously, Gerald (sic) and Bob Gore
made those operational decisions. (Batten, who was BEMC’s
representative to NCEMC, and a contact person, was in-
volved in the billing side. Leavitt was involved in monitoring
peak strategy.) BEMC has however now created the position
of load management supervisor to have a direct contact with
the operation in Raleigh; and, to make decisions about the
noncoincidental peak, i.e., when, after statewide comes off
load management operation, BEMC then has to control its
own peak.
BEMC began to put together a system of how to install
switches which was the first emphasis on load management.
SDA really hadn’t evolved at that time, at least not from
BEMC’s standpoint. However, demands had been increasing
for several years; and Leavitt estimated, in the last year and
a half, particularly on load management switches themselves,
BEMC would install an increase of about 40 percent on the
switches themselves. This began before the union campaign
started.
The position of load management supervisor was posted;
and, it was awarded to Terry Stevens, who had been, pre-
viously, the load management coordinator, a bargaining unit
job. According to Leavitt the difference in the job now is
that in the last 5 years they had put more and more of an
emphasis on load management. The dollar sayings were a lot
greater; and, the responsibility had grown. Consequently,
BEMC wanted the load management coordinator position to
carry a larger responsibility on the load management side.
The new position of load management supervisor thus has
the control over when to go into load management strategy.
The position has the responsibility for setting peak strategy,
and for making sure BEMC works their load management
strategy in coordination with what the statewide group strat-
egy is.
Leavitt has asserted that a single mistake in one peak pe-
riod could cost BEMC almost $200,000. Thus, Leavitt stated
BEMC can save that much in a month by operating within
a capability of 17-21 (sic, seemingly $17.21) per KW.
Leavitt related BEMC has capability of operating about (or
seemingly) reducing (to) 13,000 kilowatts, with Leavitt in
any event (roughly) calculating possible sayings therefrom
closing on $200,000.
Though it would appear Leavitt may have described a
maximum saying not nearly presently achieved, the appar-
ently presently realized savings are not insubstantial. On
recross-examination Leavitt testified that in 1988 they had
roughly 5000 switches on; and on each such switch they save
roughly .8 KW. In money it was .8 times 5000, or 4000 KW
times 1721 (sic, seemingly $l7.21) or (in any event) as he
estimated roughly $68 to 70,000. Leavitt has also testified
that BEMC has increased load management switches some
40 percent over the last 3 years; and he would have it ob-
served there was a related increased responsibility or need to
manage these switches.
Leavitt testified that the present load management coordi-
nator does (sic, did) not have supervisory responsibilities
over other employees. The present load management super-
visor (Leavitt asserts) does, namely, he supervises and does
the evaluation on the two electronic technicians at the
Shallotte office that install the load management switches.
Initially, Leavitt asserted the responsibility for making load
management decisiong had been changed from operations
manager Gore to the load management supervisor. Leavitt
(with some direction) later clarified, that Gore still can make
those decisions: and, that Gore still gets in on the strategy
discussions. Leavitt then more qualifiedly stated, the dif-
ference now is the load management supervisor has direct
input, can and will make those decisions independent of
Gore, unlike the load management coordinator before.
Leavitt has summarized that the main difference in the old
and new load management job description is expanded re-
sponsibilities, i.e., the (new) load management supervisor
would have more responsibility in the SDA area, and particu-
larly controls working the SDA; more or basic say so in
when we would set load management demand control strat-
egy; and, he reasserted, in evaluation and review of employ-
ees, including every day administration of employees’ work.
In contrast, the General Counsel established General Coun-
sel’s Exhibit 12 is a timesheet for Dewayne Reynolds and
Dana Mauldin. Reynolds is an electronic technician who in-
stalls and repairs switches, under the supervision of the load
management supervisor. However, Reynolds’ timesheet is
okayed by Tex (Dale Wayne Holden) who is not the load
management supervisor. Moreover, final approval of all time-
sheets comes from district or operation managers. (G.C. Exh.
13 is another timesheet for Reynolds and Mauldin. This
timesheet is also okayed by Tex.)
The above daily timesheets cover 5/31/90 and 6/1/90.
Leavit acknowledged that Tex Holden’s job is operations as-
sistant. Leavitt relates Holden is also a licensed electrician;
and, installers (electronic technicians) have to work under
Holden’s (craft) supervision through an attorney general’s of-
fice (order). Leavitt explains that there was an issue all over
the state with electrical contractors about electrical work
BEMC (and others) were doing, inclusive of installing load
management switches without certain electrical inspections,
and, without a licensed electrician working with the install-
ers. Holden presently approves the timesheets so BEMC can
show that they (their switch installations) were approved by
a licensed electrician. Leavitt asserts without documentation
(though without apparent contradiction) that the load man-
agement supervisor grants time off and evaluates electronic
technicians.
Leavitt didn’t know whether the election was held pursu-
ant to a stipulated agreement or directed election. Leavitt had
initially asserted the Company’s position was that the draft-
ing and mapping coordinator and the load management coor-
dinator weren’t bargaining unit positions, but were super-
visory positions, though Leavitt imediately retracted in say-
ing that he couldn’t be an expert on that specific issue. In
that regard, Leavitt (only) knew there had been a hearing to
determine which positions would be in the unit.
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Leavitt had no involvement and was not present at the rep-
resentation case hearing on the unit composition which was
held in the courthouse at Southport. Although Leavitt did not
know that the Union opposed these positions being in the
bargaining unit, Leavitt later acknowledged that he would not
be surprised if told the Company’s position (then) was that
they should be in the bargaining unit; though there does not
appear to be affirmative evidence it was the case.
In any event, Leavit acknowledged that they (the posi-
tions) were in the bargaining unit when they (employer) was
presented with the documentation (seemingly, certification);
and, they were both in the contract when presented (pro-
posed). Significantly, Leavitt acknowledged that the Em-
ployer has never negotiated with the Union in regard to the
changes made in the drafting and mapping coordinator and
in the load management coordinator positions.
Analysis
The Employer has presented clear valid economic reasons
for its as clear unilateral action in creating new positions of
engineering assistant supervisor and load management super-
visor, that continue to do some unit work. It is clear the per-
formance of the load management supervisor position as
newly constituted, may have direct and substantial bearing on
Employer’s costs. However, it is also clear that apart from
any supervisory and/or managerial functions that may have
been added to the newly created positions of the engineering
assistant supervisor and the load management supervisor
(and, apart as well from whether fully exercised or not), the
two individuals occupying those positions (respectively) have
continued to perform in very substantial measure and nature
the same unit work they previously had performed while (re-
spectively) occupying the above-unit positions of drafting
and mapping coordinator and load management coordinator.
General Counsel correctly observes that the Board has
long held that an employer violates Section 8(a)(5) and (1)
when, without bargaining, it invests bargaining unit positions
with supervisory authority sufficient to take them out of the
unit while it continues to assign them substantial bargaining
unit work to perform. While an employer is not inhibited by
the Act in selection of its supervisors, employer may not in
designating a unit employee a supervisor (and/or manager),
effectively either eliminate bargaining unit positions without
the union’s agreement, nor transfer unit work to be per-
formed by nonunit employees, without the employer first
bargaining with the Union in good faith to impasse, Facet
Enterprises, 290 NLRB 152 (1988), enfd. in pert. part Facet
Enterprises v. NLRB, 907 F.2d (10th Cir. 1990); Fry Food,
241 NLRB 76, 88 (1979), enfd. 609 F.2d 267 (6th Cir.
1979).
This would appear to be readily so here, whether former
unit position of load management coordinator now stands in
simple disuse with creation of load management supervisor
position, or as with the drafting and mapping coordinator
unit position stands dormant, but may be filled by the Em-
ployer only with some unpredicted future expansion (or even
if it is projected some limited drafting need of the latter,
were potentially to be reconfigured in some partial unit work
discription for anticipated new unit employee hire in the near
future).
Thus, where (as here) there is no bargaining on the subject
at all, and thus necessarily there has been but unilateral ac-
tion on the part of Employer, and individuals who have been
designated as supervisors and/or managers have no less con-
tinued to perform in large measure unit work that is substan-
tially of the same nature as they had done before, it matters
not whether the Employer by its above unilateral action is to
be viewed as having effectively altered the composition of
the unit, as by creation of a new supervisory position, leav-
ing an old unit position in disuse, or dormant and unfilled,
effectively reclassifying a unit position to nonunit super-
visory job (a permissive subject of collective bargaining), or,
has created a new supervisory position and invested it with
unit work, and in that manner effectively transferred work
out of the unit (a mandatory subject of bargaining), Facet
Enterprises v. NLRB, supra; Fry Food, supra.
Accordingly, I conclude and find that by Employer’s uni-
lateral conduct on March 15 in designating the two unit em-
ployees occupying unit positions of drafting and mapping co-
ordinator and load management coordinator to the new super-
visory (and/or managerial) nonunit positions of engineering
assistant supervisor and load management coordinator super-
visor, with improper continued assignment of unit work to be
performed by them, without notice and bargaining with the
Union, Respondent Employer violated Section 8(a)(5) and (1)
of the Act.
5. The alleged Weingarten violation on March 27
The complaint alleges that, on or about March 27 and act-
ing through its supervisors and agents at its Oak Island facil-
ity, District Manager Don Hughes and Supervisor Martin
Register, Respondent BEMC: (1) denied the request of its
employee Michael F. Sullivan to be represented by a rep-
resentative of his own choosing during an interview which
Sullivan had reasonable cause to believe would result in dis-
ciplinary action; (2) notwithstanding that fact, conducted an
interview; and, then issued a written warning to Sullivan; all
in violation of Section 8(a)(1) and (3) of the Act.
Sullivan is a second-class lineman under supervision of
Martin Register. Sullivan was involved in a traffic accident
on March 22 (Thursday). He called Register who came to the
scene of the accident. After a state trooper wrote out a cita-
tion to Sullivan on a moving violation, Register then talked
with the other driver; and, he advised the lady that was in-
volved that there would be no problem with the insurance
taking care of it. Register then asked Sullivan to write up a
statement telling what had happened at, or caused the acci-
dent.
Sullivan acknowledged on the days (sic) Register asked
Sullivan to prepare a statement for him, Sullivan did not re-
call asking Register to be represented in any way in the prep-
aration of his statement. Indeed, Sullivan didn’t recall ever
asking Register to be represented in connection with the
preparation of this statement. On cross-examination, Sullivan
also couldn’t remember what day he gave his written state-
ment to Register. At first, Sullivan thought he gave it to Reg-
ister on the same day that they had the meeting, but Sullivan
then acknowledged he might have given it to Register the
day before; and, indeed, Sullivan later testified that he (Reg-
ister or Hughes) would have probably had to (have) had it
the day before to have (had) something (the written warning)
prepared for the meeting.
Sullivan relates that on March 27 (Tuesday), Sullivan,
along with Clayton Rivenbark, attended a meeting held with
397BRUNSWICK ELECTRIC CORP.
District Manager Hughes and Supervisor Register. Sullivan
had asked Rivenbark, his shop steward, to come with him to
the meeting(s). Sullivan recounted Hughes told Rivenbark (at
the meeting with Hughes) that the office did not recognize
him as a shop steward, or any shop stewards at that office;
and, that Hughes also said Rivenbark would have no input
into that meeting. Sullivan recounts that Rivenbark acknowl-
edged the direction; and, Rivenbark didn’t say anything else
thereafter.
BEMC has employed Rivenbark about 2.5 years, most re-
cently as apprentice lineman 3. Rivenbark confirms he is an
IBEW shop steward, and, on or about March 27, he had a
conversation with employee Sullivan, who said he wanted
Rivenbark to represent Sullivan at the office on a job related
accident he had had. Rivenbark recalled he and Sullivan had
first met with Supervisor Register in his office; and later they
all met with District Manager Hughes.
Rivenbark has recalled Register asked if Sullivan wanted
Rivenbark to represent Sullivan, and both said yes.
Rivenbark recalled Register then said ‘‘he didn’t have no
problem with Rivenbark being in there with Sullivan,’’ but
Rivenbark couldn’t say anything during the meeting. The
three then went over to Hughes’ office. Rivenbark’s account
confirms that there, Hughes also said Hughes didn’t have any
problem with Rivenbark in the meeting, but the Company
didn’t recognize any shop stewards. Rivenbark confirms that
he was not allowed thereafter to represent Sullivan in any
way.
Sullivan relates Hughes spoke first; and, Hughes stated
what Sullivan was there for, namely, to discuss the accident
and to see what kind of disciplinary action would be taken.
However, on cross-examination, Sullivan acknowledged
Hughes stated to Sullivan that the reason for the meeting was
to discuss the disciplinary action that the cooperative was
going to pay (sic, but in context take, and see confirming
Rivenbark account below). Rivenbark testified that at no time
before the meeting started did any supervisor say in
Rivenbark’s presence that the meeting was unnecessary, or
that the warning was being issued no matter what occurred.
However, Rivenbark has significantly confirmed when
Hughes first spoke at the meeting, Hughes stated the reason
for the meeting was to discuss the disciplinary action that
the co-op was taking against Sullivan for the accident.
Sullivan’s account then somewhat disjointedly continued,
Hughes then asked Sullivan to explain what happened; and,
Sullivan just read off his statement of what happened.
Though Rivenbark initially confirmed that it was after that
(his restriction) that Hughes asked Sullivan to state what
happened in the accident, and, on at least one such occasion,
seemed to affirm Sullivan then read a statement concerning
the accident, what happened, where it was at, on other occa-
sion Rivenbark has testified Hughes read to Sullivan a sum-
mary of facts that were written on the warning, relating
(only) that (Hughes reading) was after Hughes had told
Rivenbark that he couldn’t say anything. Rivenbark has con-
ceded that asking Sullivan to prepare a written statement was
part of the Respondent Employer’s full investigation.
Sullivan has otherwise related Hughes asked Sullivan if
Sullivan had any questions; and, then Hughes stated that he
was going to have to write Sullivan up for it. Rivenbark oth-
erwise recalled (generally) they all just sat there and talked
a few minutes, about the accident; and, that Hughes asked
questions that Rivenbark did not recall. Rivenbark recalled it
was after that that they told Sullivan they were going to have
to write him up for first offense.
Sullivan has asserted that at the end of the meeting
Hughes explained to Sullivan that as a result of the investiga-
tion Sullivan was receiving a written warning. Sullivan didn’t
recall Hughes telling Sullivan that the cooperative had thor-
oughly investigated the accident, but then acknowledged,
maybe Hughes did. Rivenbark recalled Hughes did say that
the cooperative and (sic, but in only logically inferable con-
text had) thoroughly investigated the accident; and, Hughes
then gave Sullivan the warning, which Sullivan signed.
Sullivan has related that at the end of the meeting Hughes
read a summary of facts to Sullivan from the warning that
he (and Rivenbark) concede had been (previously) prepared.
Sullivan acknowledged he received a copy of the warning the
same day; and, on cross-examination, Sullivan recalled
Hughes had asked if Sullivan had any suggestions of what
they (BEMC) could do to possibly prevent something like
that happening again.
BEMC has employed Martin Register for 7 years, and in
material time as construction supervisor at its Oak Island dis-
trict. As such, Register is in charge of the servicemen and
lighting crews at that location, drawing up work orders,
aligning the work on a daily and on a long-range schedule.
Register confirms Michael Sullivan is under his super-
vision. On Thursday, March 22, at approximately 4:30 in the
afternoon, Register received a call on the radio from Sullivan
that he had been involved in an accident and needed Register
to come to his location. Register did so.
When Register got there, he saw there had been an acci-
dent. Register asked Sullivan if there were any injuries; and
Sullivan said, no. Register then asked Sullivan, ‘‘Well, what
happened?’’ Sullivan told Register that Sullivan had pulled
up to the intersection and stopped. He was on a private
driveway coming out of a mobile home park, and started to
proceed out onto the road, but there was a vehicle turning
in. So, he stopped and backed up; and when he did he
backed into a privately owned vehicle. Neither before or dur-
ing the conversation did Sullivan ask Register if he could be
represented.
Register also spoke to the lady that was driving the vehicle
that Sullivan backed into; to the two people that were with
the lady in her vehicle; and, the highway patrolman that
came up after Register did. The highway patrolman told Reg-
ister that he had issued Sullivan a citation. After the highway
patrolman had talked to both Sullivan and the lady driving
the car, Sullivan came back to Register; and, Sullivan told
Register, that the patrolman had issued a citation to him.
Register somewhat uncertainly recalled, it seems like it was
for unsafe movement.
First thing Friday morning, March 23, Register informed
District Manager Hughes of the accident. Register also at
that time asked Sullivan to write up a statement in his own
words, what happened concerning the accident, who was in-
volved, and if there were any injuries. At the time Register
asked Sullivan to prepare this statement, Sullivan did not ask
if he could be represented in preparation of that statement.
BEMC has employed Don Mitchell Hughes at Oak Island
for close to 21 years; and in material times as the manager
of Oak Island. As district manager, Hughes oversees the en-
tire operations in that district. Hughes confirmed on Thurs-
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
day afternoon, March 22, employee Sullivan was driving a
company vehicle and had an accident; and, that Hughes had
first learned of it the next morning, Friday, March 23. At
that time, Register informed Hughes that Sullivan had an ac-
cident with a vehicle; that Register had gone to the scene
Thursday afternoon; and, Register was requesting Sullivan to
prepare a statement of what had happened. Hughes had no
further discussion on Friday concerning the Sullivan acci-
dent.
Register relates it was on Monday, March 26, about mid-
morning Sullivan (first) asked Register if Sullivan could have
someone to represent him, but after Sullivan had given Reg-
ister the written statement Sullivan had prepared. Register
told Sullivan he would have to check and let him know; and,
Register did let Sullivan know, later that day after Register
had talked to Hughes.
Register met with Hughes, and informed Hughes that Sul-
livan was wanting to bring somebody in with him during the
meeting. Hughes told Register at that time that Hughes didn’t
have any problem with it, and what Register referred back
to Sullivan; and (thus, somewhat ambiguously as to when)
Hughes told Register that Sullivan’s representative could be
there (only) as an observer. In any event, Register and
Hughes then discussed the accident; and, they went over the
statement that Sullivan had prepared.
Hughes confirmed that on Monday, March 26, about mid-
morning, Register came to Hughes’ office with a statement
which Sullivan had prepared. Hughes recalled that they dis-
cussed it at length and reviewed the accident from the state-
ment and also from what information Register had from the
scene of the accident. Hughes confirmed that it was at this
meeting Register asked Hughes would it be okay for Sullivan
to have a representative at their meeting; and, Hughes related
(clearly) he said at that time, he didn’t have any problem
with it, but the only way he (Sullivan’s representative) could
come in would be as an observer.
Hughes had a further conversation about the accident that
afternoon with Nancy Demery, BEMC personnel director;
and, Hughes also had a conversation with General Manager
Batten about it. Hughes informed Demery of Sullivan’s acci-
dent; and, Hughes reviewed Sullivan’s file when supplied by
Demery. Hughes informed Batten of who was involved in
the accident; the nature of the accident from the report which
Sullivan had prepared, and the report which Register had dis-
cussed with Hughes.
In describing management’s procedure, Hughes related the
first thing we do (is) we do a thorough investigation, as they
did with Sullivan. Hughes had the discussion with Register,
who had visited the scene of the accident on the afternoon
that it happened. They requested the employee to give a
statement to them in writing, so they could have his version
of what happened; and, Hughes had all of that at the time
he spoke with Batten and Demery.
The procedure then is, they take this information and in-
vestigate it very thoroughly and determine if the employee
was at fault, i.e., in carelessness in what he was doing at the
time of the accident. They also look at the personnel file to
see if the employee has had any other prior instances of this
nature in the past. (In his review of Sullivan’s personnel file,
Hughes found Sullivan had had other writeups, but not of
this particular nature.) Hughes relates then, after the thorough
investigation, and discussion of it with one another, they go
strictly by policy. They went by policy E2.
Hughes has testified definitively it was he who had
brought up the subject of discipline. Hughes said due to what
their investigation had found, they are to follow policy E2,
which meant Sullivan would be receiving a written warning.
Demery and Batten agreed that was the thing to do. Hughes
candidly explained, that though it was he who had first
brought up and recommended the disciplinary action of a
warning for this incident, Hughes was getting an okay of
management personnel along with it. Hughes acknowledged
he had a further conversation on the matter with Register that
afternoon.
Thus Hughes relates he met with Register again (that after-
noon); and, they reviewed the accident again from the report
which Sullivan had prepared; and, they thus had investigated
the accident very, very carefully again Monday afternoon. At
that time a decision was made; and, their (sic) decision then
was to give a written warning to Sullivan. The written warn-
ing was prepared on Monday afternoon in Hughes’ office by
Register in Hughes presence. Hughes had no other discus-
sions on this matter Monday. Register confirmed that on
Monday afternoon Register and Hughes met again; they dis-
cussed the accident further; and, according to Register, they
then made the actual decision to issue a written warning to
Sullivan on the accident. Register confirms he prepared the
warning that Monday afternoon, and that Register had no
meeting on it with Sullivan on that Monday afternoon.
Hughes is in a different building than Register. Register
relates (with corrobration of Hughes), that on Tuesday,
March 27, Register called Hughes on the phone, and checked
with Hughes to see what time Hughes would be available to
have the meeting with Sullivan. As Hughes said he was
available anytime, Register promptly located Sullivan and in-
formed him they were ready to have the meeting. Sullivan
again asked Register if he could have somebody to represent
him during the meeting. Register told Sullivan that he could
have somebody present, but that person (Rivenbark) could
only be there as an observer.
Before they proceeded over to the building, Register also
told Rivenbark that he could come in as an observer. Reg-
ister testified his understanding of that was, he knew
Rivenbark wouldn’t be allowed to do anything other than ob-
serve at the meeting because they had already made their de-
cision on what action they were going to take prior to meet-
ing with Sullivan and Rivenbark: so (though somewhat self-
servingly, also with supportive evidentiary background) there
was to be no investigation during that meeting. The three
proceeded over to Hughes’ office, and went in. Hughes was
there, and the four started with the meeting.
According to Register’s recollection, Hughes spoke first.
Hughes advised Sullivan why they were there, namely, to
show and go over with him the written warning they had
prepared and issued. Hughes told Sullivan his representative
Rivenbark could be there but only as an observer. Hughes
essentially confirms (though reversing the two statements,
that in the meeting, Hughes was the first to speak, and re-
called that he first informed Sullivan that Rivenbark could be
present, but only as an observer; and, after Sullivan had ac-
knowledged that, Hughes then turned his attention to the
written warning which had been prepared on Monday after-
noon by Register.
399BRUNSWICK ELECTRIC CORP.
Hughes recounts he then stated to Sullivan that the reason
for the meeting was to go over the disciplinary action which
had been prepared, and to explain it to him; that it was a
written warning for unsafe movement, and receiving a cita-
tion; and, all this was determined after they investigated it
thoroughly, and had checked his personnel files also. (On
other occasion Hughes related he didn’t say anything to Sul-
livan about BEMC’s investigation of the accident.) Hughes
testified that he (then) read the warning to Sullivan, a state-
ment of the disciplinary action which they were taking: and,
then he asked Sullivan, did Sullivan understand the discipli-
nary action which had been taken at this time. Hughes re-
called he then asked Sullivan to sign the warning; that Sulli-
van did; and, that Sullivan received a copy of the warning,
preparing it himself from the copy machine (in another
room), immediately after (affixing) his signature.
When asked what was the company policy regarding union
stewards, Hughes replied that he didn’t recognize a steward-
ess [sic], but he would recognize a representative of an em-
ployee, if he was going to do an investigation of an accident
or anything that might happen, or, if he was going to try to
find out some information, indeed, he would invite each and
every employee in that he thought would be helpful, or, that
they thought would be helpful. Hughes has stated explicitly
that he doesn’t recognize union stewards as such, but he rec-
ognizes them as a representative. Hughes also has testified
he doesn’t presently have a contract with the Union that de-
fines what a union steward is.
Hughes and Register have testified in mutual corroboration
that at no time during the meeting did Hughes or Register
ask Sullivan to read the statement that Sullivan had prepared;
or, to read the statement he had prepared out loud. At no
time during the meeting was Sullivan asked by either Hughes
or Register to explain what had happened at the scene of the
accident. In specifically denying that he had asked Sullivan
to read his statement, Hughes summarized cogently, Hughes
did not ask Sullivan to read the statement that Sullivan had
prepared or to explain what had happened because (at that
point) Hughes didn’t feel like he needed to, for they had al-
ready done a thorough investigation. Hughes had Sullivan’s
statement; had read it; had again reviewed it very, very care-
fully along with Register. So (Hughes felt) they had done a
thorough investigation, and at that time they didn’t need to
discuss the incident.
In that regard Hughes and Register have both also mutu-
ally testified the decision to discipline Sullivan was made the
day before based on: information that Register had already
obtained at the scene of the accident, from Sullivan, a citing
policeman, the driver and passengers of the other vehicle;
Sullivan’s subsequently prepared (written) statement; the
highway patrolman’s citation, which Sullivan had received
for unsafe movement; and, after a review was made of Sulli-
van’s personnel files.
Hughes and Register have jointly testified, there was fur-
ther discussion in Hughes’ office when Sullivan returned
from making a copy, but this was after the disciplinary ac-
tion was over, and everybody understood that. They had a
short safety meeting. They discussed what actions they could
take, or what suggestions that Sullivan might have to prevent
accidents like this happening in the future to Sullivan, or any
other BEMC employee. Hughes recalled they discussed ad-
justment of the mirrors on the vehicles; and, the proper ways
to back (up). Sullivan made the recommendation of a bumper
sticker to put on the back of the truck that asked people to
stay a certain distance from the truck.
Analysis
An employee has the right to request representation at an
interview where the employee reasonably believes an inves-
tigation will result in disciplinary action, NLRB v. J.
Weingarten, 420 U.S. 251, 257 (1974). An employee has no
such right to presence of his union representative at a meet-
ing with his Employer being held solely for purpose of the
employer informing the employee, and the Employer acting
upon a previously made disciplinary decision, even if, as
here, offer of explanation is made by Employer, Baton Rouge
Water Works Co., 246 NLRB 995, 997 (1979).
In what appears in ready contrast with Employer’s wide-
spread deficient account offered in support of its supension
of Smith, the accounts off Hughes and Register are not only
mutually corroborative but appear essentially internally con-
sistent and supportive of the action Employer has taken in
this matter. Thus, it seems to be without dispute, and in any
event I credit their accounts which establish that prior to any
request that Employer received from Sullivan for a represent-
ative in this matter, there was: an early report of Sullivan to
Register of Sullivan’s involvement in an accident on Thurs-
day afternoon, followed by Register’s prompt visit and gath-
ering of information on the scene of the accident that after-
noon on how the accident had happened, who was injured,
what damage was done, and who was responsible, from Sul-
livan, a citing policeman, and discussion with other involved
party, and passengers.
After completing his investigation at the scene of the acci-
dent late that afternoon, Register made a timely request of
Sullivan on the following day, Friday, for a written statement
in Sullivan’s own words of how the accident had occurred.
Sullivan prepared the statement over the weekend; and, he
turned it in to Register on Monday morning before Sullivan
made his first request of the Employer that a representative
be present with him in any meeting to be held on the matter.
Hughes’ subsequent review of Sullivan’s file was then
warrantedly made as part of Employer’s investigation; and
his contact of Personnel Director Demery for that purpose
was in order. Hughes contact of Batten under the above cir-
cumstances described, informing Batten of Hughes projected
issuance of a written warning as discipline, in that proceed-
ing’s background, on its face appears candid and prudent, not
sinister. The clear weight of credible (if not in the end undis-
puted) evidence establishes Register had, at Hughes direc-
tion, prepared the written warning discipline for Sullivan on
Monday afternoon, the day before the questioned meeting
was held.
In the light of those determined circumstances, the ob-
served commonalities in the witnesses testimony, but in this
instance along with certain instances of inconsistency and
disjointedness in Sullivan’s diverging account of there being
a further investigative interview, when considered along with
significant admissions in Rivenbark’s account, inclusive of
(essentially) an admission that there was an opening state-
ment by Hughes that the reason for the meeting was to dis-
cuss the disciplinary action the co-op was taking against Sul-
livan for the accident, thus confirming the basic assertions of
Employer’s witnesses in that regard, has in the end wholly
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
convinced me that Hughes’ and Register’s accounts of this
meeting as being with basic purpose for administration of an
already determined written discipline for an accident is well
established as the more accurate and supported, albeit accom-
panied with Hughes’ offer of any required explanation of the
meaning of the discipline being awarded.
Thus, I conclude and find that Hughes announced and read
a written warning to Sullivan on which Hughes inquired only
whether Sullivan had any questions as to its meaning: and,
that other inquiry on the accident occurence was made clear-
ly thereafter on safety aspects. In short, I find this interview
was conducted for the award of a discipline already deter-
mined, and not an investigative interview where discipline
was possible, or a disciplinary interview where discipline
base was being reinforced, and where Weingarten principles
apply. Accordingly, in agreement with Employer, I shall rec-
ommend this allegation of the complaint be dismissed in its
entirety.
6. March negotiations, as related to the discharge
of Smith
The alleged discriminatory discharge of Smith because of
an altercation with Leavitt on May 9, was the most litigated
complaint allegation. The second and last meeting that
Leavitt missed was on March 9 (Friday) when his father-in-
law had open heart surgery. Leavitt recalled the next meeting
was in March, but was unsure of the date. Thus Leavitt re-
called at a meeting on March 29, or a little earlier, after the
parties came in and sat down, Smith stood up and looked
over at their table and said, well, I see you brought all the
flunkies with you this time. Leavitt recalled present for the
Company that day, beside himself and Attorneys Smith and
Tom Ruff, were: Dimery, Flora Johnson, and (I find) con-
struction supervisors Register and Herring.
Construction Supervisor Register, who attended only one
negotiation session, but which was at the same location, and
who recalled the same company representatives present (ex-
cept for Johnson), but not the date, confirmed that he heard
Smith say after the mangement negotiating team came in, ‘‘I
see you brought all the flunkies with you today,’’ referring
to members of Employer’s negotiating committee.
Levitt further relates at this March meeting they started
discussing some issues, going over counterproposals; and,
while Attorney Smith was trying to talk to Ruff (Union),
Smith interjected some loud, boisterous (comments). Leavitt
recalled Attorney Smith was trying to get a point across to
Ruff at the time; and, it was getting real loud. Leavitt’s
recollection was that as Attorney Smith was sitting down,
Attorney Smith looked at Ruff and said (of Smith), I can’t
negotiate with this asshole; and, Attorney Smith then stuck
his fingers in his ears. Leavitt recalled Smith then stood up,
and, as Smith began to come around the side of the table (to-
wards Attorney Smith), Hatcher grabbed Smith by the back
of the pants; and Norris moved his chair so Norris could be
in front of Smith; and Ford also jockeyed his chair so Smith
couldn’t get out.
On cross-examination Hatcher had acknowledged that at a
meeting in March Hatcher had had to restrain Smith; and,
that Hatcher had grabbed Smith by the belt when Smith
started around the table at Attorney Smith; though Hatcher
also testified that it didn’t take much to restrain Smith on
that occasion. Hatcher had specific recollection that was the
day that Attorney Smith had called Smith an asshole at a
time when Smith was talking about a wage increase. More-
over, unlike Leavitt, Hatcher also recalled that on that occa-
sion, Attorney Smith had come around the corner of his
table, had walked straight over to Smith, and said, I’m not
negotiating a contract with an asshole like you, Doug Smith.
Register generally corroborated Smith jumping out of his
chair and his movement toward Attorney Smith. Thus, Reg-
ister recalled after the meeting had been going on for about
20 minutes, Smith jumped out of his chair to come around
the table to Attorney Smith; and, others (employees) then
moved to block him. Register confirmed Hatcher had reached
out and grabbed Smith by the belt loop. However, though re-
calling there was a statement made to Smith, Register, unlike
Leavitt (and I conclude, in this instance, incredibly so)
couldn’t recall the statement made to Smith, nor even that
anything derogatory had been said to Smith in this meeting.
I do not find Register’s account of this meeting reliable, ex-
cept to the extent that it is to be confirmed by other credited
accounts.
Leavitt has Attorney Smith later get up at time he was
signing off on preamble or management-rights clause, or
whatever; and as he took it over and presented it to Ruff, At-
torney Smith apologized to Ruff; and, the event sort of ended
there. In confirming the apology to Ruff, Hatcher had related
Ruff pointed back over to Smith; and Attorney Smith apolo-
gized for that (but ambiguously to Smith). There is no clear
evidence Attorney Smith apologized directly to Smith on this
occasion. Even more notably, Hatcher specifically and firmly
denied when the remark was made to Smith, Attorney Smith
was seated in his chair and talked to Ruff; or, that Attorney
Smith had looked at Ruff and said I cannot negotiate with
this asshole. Hatcher reiterated Attorney Smith came around
the table. (Ruff did not testify.)
Presently, I credit Leavitt that prior to May 9 it was not
common for management and union officials to make derog-
atory comments about each other, but only to the following
extent. In acknowledging Attorney Smith has called Smith an
asshole, Leavitt related (accurately) Smith has returned the
compliment, at least in the respect, as found above on Smith
acknowledgement that he had said to Attorney Smith at the
heated end of the January 4 evening meeting, were you born
an asshole, or just work at it. However, I do not credit
Leavitt’s companion assertion that Attorney Smith’s above
statement to Smith was the only derogatory management
comment that came up in negotiations. E.g., I have credited
Hatcher (seemingly) undisputed testimony that Attorney
Smith had in that very same heated meeting called Hatcher
a ‘‘son-of-a-bitch.’’ I do credit Leavitt otherwise that most
of the derogatory comments came from the Union side;
though I also credit Hatcher that they tried to keep it down.
7. The May 9 heated negotiations; and the Leavitt–
Smith altercation
a. The negotiation room; attendance; and seating
arrangements
Negotiations were held on May 9 in a conference room at
the North Carolina Baptist Assembly at Fort Caswell, or
Caswell Beach (CB facility). Parking for the CB facility is
at a lower level. From lower level parking lot, you proceed
up to a double door entry, and thence into a corridor that
401BRUNSWICK ELECTRIC CORP.
leads midway to the right and left. The corridor to the left
leads to a set of double doors that enter on a big assembly
room; and the corridor on the right leads through a set of
double doors, to an area of smaller individual assembly
rooms. The assembly room used that day for the negotiations
was the first room located on the left on entry through the
right corridor doors.
The room used for negotiations was approximately 24 feet
by 16 feet wide; and, it was smaller than what the parties
had used in the past. (The parties had earlier used the third
room, on its right, a much larger end room. Leavitt had tried
to get that room again for the negotiations, but it was not
at that time available.) Entry to the smaller negotiation room
is from the hallway through a thirty 6-feet standard door,
which is set in the corner of the room, (I find) 13 inches
from the right wall, that is perpindicular to hall door wall as
you enter, and to opposite parallel porch door wall.
On entering the room there were two abutting tables (i.e.,
placed end to end) set up to the left at which the union com-
mittee was seated on selection by Smith. (All tables de-
scribed were 6 feet by 2-1/2 feet.) To the right of the
Union’s table(s) was a passageway from hall door to rest of
the room, but first passing between the Union’s table and a
coffee/cookie table located midway on the right wall. Oppo-
site Union’s tables were two similarly abutting tables at
which the Company’s negotiating team was seated, essen-
tially directly facing the Union’s negotiating team, but with
adequate walking space between the parties’ tables. Behind
the Company’s tables was a second (two door) doorway that
exited to a porch, with beach and water view. There are 200
yards of beach between the water and the porch which ex-
tends the back length of the CB facility.
At this meeting there were 10 in attendance on the union
side, and 5 on the company side. Besides International Rep-
resentative Ruff conducting the negotiations and Local Union
Business Manager Hatcher there were four (Union) employee
negotiators seated at the Union’s two tables, and four other
employee observers who had some time off, and who were
present as they wanted to see how a union contract was ne-
gotiated. Employer had five on its negotiating team.
The Union’s negotiators as viewed from behind the
Union’s tables, and facing Employer’s negotiators, left to
right, were: Ruff, the International representative conducting
the negotiations, Hatcher, Norris, Merril Wilson (an alter-
nate), Smith, and with Billy Ford seated around at the end
of the union table located nearest the hall door. Three of four
union employee observers identified by Hatcher were seated
behind Wilson and Smith, namely, Glen Hayes, Dean Long
and Sidney ll. (The latter observer appears as Sidney
Coleman and Sidney Fuller. For clarity I use Sidney ll.)
The fourth observer, Teddy Bullard, was seated to the left of
Ruff, but more around the end of the union table furthest
from the door, and (essentially) facing Ford. As viewed by
the Union, and seated left to right for the Company were,
Line Foremen Johnson and Batts, an empty chair, Leavitt,
Attorney Smith and Line Foreman Coleman.
Though Hatcher didn’t remember Smith wearing sun-
glasses inside the room that day, I find he did. However, I
credit Hatcher that he didn’t think Smith had worn Army fa-
tigues to negotiations that day; and, that Smith had worn his
Army fatigues to negotiations only once. There is no evi-
dence presented, and certainly no convincing evidence of
record that Smith wore his army fatigues to negotiations that
day; or, even that on the day indicated that he did wear
them, he did so for any reason of intended intimidation. (I
note relatedly in passing that at least one negotiation session
was at the end of the week, on a Friday.)
b. The heated discussions
(1) In the morning session
Leavitt’s recollection is they started this meeting roughly
around 10 to 10:30 a.m. The Company had given the union
group five counterproposals, including a new wage proposal.
(Smith recalled the Union was given the counterproposals
only the day before, though Smith asserts the Union was
supposed to have received them 8 to 9 days before.) In any
event, Ruff requested opportunity to look at the counter-
proposal documentation the Company had (thus) just given
to them; and, the Union said they needed a few minutes to
caucus. The Company left the room (shortly), about 10:35
a.m., going out the hall door (down the corridor) into a re-
ception area. There were no union comments made to any
company representatives when they went out that morning
for the first caucus.
Leavitt recalled that a little after 11 (up) to 11:15 a.m.,
Ford came out and said they (the Union) were ready, to
come on in. On the Company’s return, as usual, Ruff asked
that Attorney Smith first review the highlights of the Compa-
ny’s counterproposals; and, Attorney Smith started to do so.
There was an apparent immediate digression in a discussion
of the owner’s request that there be no smoking in the con-
ference room.
In a lull immediately following the no smoking discussion,
Leavitt recalled Ford had turned to Ruff, and with Wilson
echoing it, said ask him (Attorney Smith) about the four tens
(four 10-hour days) and (Raleigh) training. According to
Leavitt, Ruff at this point looked at us (Employer) and said
the four tens and training are a perfect example of the walls
and barriers that management keeps putting between the bar-
gaining unit and themselves. Leavitt related that Ruff alluded
to the fact that they no longer had four tens, and training had
been stopped, or cut. Ruff said why do you continue to do
this.
According to Leavitt, at that point Smith said, you’re not
training these men, you’re not giving them safety instruction;
you’re risking their lives; and, Smith elaborated in some de-
gree. Though Leavitt recalled Smith talking about why they
didn’t have the four 10-hour days and training and safety,
Leavitt acknowledged Smith may have also mentioned some-
thing about wages. (Although Smith didn’t personally recall
a discussion on training, I find there was such discussion.
E.g., Norris, in confirming there was a discussion of 10-hour
days, in contrast with Smith, also corroborated Hatcher’s
recollection there was a discussion of the training in Ra-
leigh.)
Hatcher otherwise recalled Smith and Leavitt had had a
few words back and forth. With some confusion, Hatcher
didn’t recall exactly what Smith said, but he recalled Smith
was pursuing the issue of the wage package on the occasion
when Leavitt first told Smith that Smith was speaking out of
ignorance and that Smith was stupid. Hatcher and others
clearly recalled as separate instance that as Leavitt was leav-
ing for lunch, Leavitt had reminded Smith one more time
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
how stupid he was, to be discussed more fully below. pres-
ently I note, that Ford (apprentice lineman two, and chief
union steward), seemingly corroborated that previously in the
morning session, when Smith was talking about wages,
Leavitt had called Smith stupid; and, that on Leavitt’s way
out to go to lunch, that Leavitt had again called Smith stupid.
Smith did not recall that (in this session) Attorney Smith
relatedly put his fingers in his ears. There is no convincing
evidence Attorney Smith did so in the morning meeting,
though there is credible evidence that such an incident had
occurred sometime. (E.g., when Hatcher was asked if Hatch-
er recalled Attorney Smith had looked over at Hatcher, pre-
tending Attorney Smith didn’t hear all that chatter mess and
put his fingers in his ears, Hatcher generally confirmed At-
torney Smith had looked over at him; and he thought Attor-
ney Smith had made some kind of motion, though Hatcher
also related he really did not look at the motion at the time.
Similar such activity had occurred in the end of March meet-
ing, above.)
Smith testified cautiously (and, either correctly in ref-
erence to morning occurence, or simply hedged generally,
and incorrectly), that he did not quite recall Attorney Smith
look at Hatcher, and say, ‘‘Mr. Smith please observe the
one-person rule;’’ or, that Smith had then said, ‘‘I’m talking
to somebody else.’’ More precisely, Norris did not recall
Smith being warned that morning that they couldn’t nego-
tiate with everybody talking at once. Norris relate Norris had
talked that morning and wasn’t warned; indeed, Norris re-
called that everybody had talked that morning.
Hatcher confirmed Smith and Wilson and some other em-
ployees had started speaking up that morning about the four
10-hour days, and about going to Raleigh for training. Hatch-
er did not recall that there was a lot of loud talk between
Smith, Norris, and Wilson at that time. Neither did Hatcher
(or Norris) recall Smith had unusually laughed out loud a lot,
or had laughed sarcastically several times as they were trying
to negotiate that day (concerning which there is again no
convincing evidence advanced that such occurred). However,
Hatcher did recall Attorney Smith’s reference to Smith’s dis-
cussion of wages, and the gag rule.
Hatcher recalled an occasion when Smith made a couple
of real loud remarks about employee pay rates. Hatcher
thought it was at that time that Attorney Smith said you
(Smith) need to shut up; and, Smith had turned to Ruff and
said, I’m talking to Gene Ruff. Leavitt recounts an occasion
that Attorney Smith looked over at Smith and said who are
you talking to: and, Smith replied in a loud voice, he was
talking to Ruff. However, Leavitt recalled Attorney Smith
stopped at that moment, and in what Leavitt (candidly) stated
he thought was general statement to everyone said, we are
under the one speaker rule and that we all needed to follow
that one speaker rule. Hatcher confirmed Attorney Smith
asked everybody to observe the one-spokesman rule, but
Hatcher reaffirmed that in fact the Union for its part had
never agreed to gagging either side of the committee. Hatch-
er has recalled that at Ruff’s suggestion, Attorney Smith then
went hurriedly through the proposals that the Company had
given the Union for that morning.
Hatcher’s recollection of Ruff then suggesting Attorney
Smith go foreward with the review indicates there was some
degree of confrontation between Attorney Smith and Smith
on wages that morning though Leavitt recollection indicates
it had resulted only in Attorney Smith general reminder to
all of its one speaker rule. I so find. However, I am not per-
suaded that Attorney Smith told Smith to shut up in the
morning session. (Others place similar incident in Attorney
Smith direct warning to Smith in the afternoon; and, I find
that there was such clear and direct confrontation in the
afternoon session, below.) Hatcher recalls the Company then
caucused.
Compatible therewith (i.e., a management caucus follow-
ing the four tens and training subjects), Leavitt recalls the
Company’s representatives talked about giving a position
statement on those two items to explain management’s posi-
tion in those two areas, not to put it in the contract, but to
answer the question raised. A provision for four 10-hour
days was not in the contract proposal at this time.
Leavitt otherwise explained, that each year there is an
evaluation and report; and, if they (seemingly the four tens)
would go into effect, they would go into effect at daylight
savings time, beginning in April, and end sometime in Sep-
tember. They had previously been in effect; but in prior
years they had been put in effect in numerous ways, shapes,
and forms. As of May 9, they had not been put into effect
for that year. I am persuaded and I find there was no gag
rule application or discourse between Attorney Smith and
Smith (or any other employees) in regard to the discussion
of the topic of four 10-hour days, or training. However, I
find there was such discussion by Employer in regard to the
parties’ initial addressment of the subject of wages that
morning, most probably in connection with a first reading of
proposed first-class linemen rates and the rate proposed for
the warehouse coordinator unit classification, but, in any
event (I find) Smith’s comment on the wage issues in the
morning session was wholly protected.
Leavitt otherwise relates credibly that Attorney Smith had
proceeded forward and had started talking to Ruff about the
difference in the wage rates of the warehouse coordinator
and a first-class lineman. Ruff was looking at the wage sheet
with Attorney Smith, and Ruff (after likely Smith comment)
said this doesn’t seem right. Leavitt recalled that there was
then discussion; and, Attorney Smith told Ruff that the ware-
house coordinator had been there a long time, or was a long-
time employee. Leavitt recalled Ruff then said (in Leavitt’s
view, leaving the subject), according to this sheet we’ve got
some employees that won’t get raises.
Attorney Smith promptly questioned that union assertion,
saying in November 1989, management had made a money
offer to the Union, which it had rejected; and, somewhere
between the end of March and first of April management had
made another offer of roughly 2 percent on top of its earlier
proposal. Attorney Smith then said he couldn’t understand
why Ruff now said that there were people out there that
wouldn’t get any increase, and/or Attorney Smith said he
couldn’t understand why everybody didn’t get some (wage
increase). Attorney Smith then asked Ruff, if Ruff could be
more specific which employees did not receive the raise.
Ruff answered he wasn’t sure exactly who they were, but
that he could get (or go) to his notes, and probably get it
together (or find out). Attorney Smith asked if Ruff wanted
to caucus to get the information together. Ruff said yes.
Leavitt recalls the Company got up and began to leave the
room; and, it was before 12 noon, maybe 11:45 a.m.
403BRUNSWICK ELECTRIC CORP.
Smith recounts as the company negotiators were leaving
the room, Smith spoke to the working (line) foremen, that
they could see what the Company was doing to us or these
fellows: they (foremen) knew they’re (linemen are) worth
more money, or more than that; and, Smith recalled Leavitt
responded, ‘‘You’re just trying to put a wall up between us.’’
Smith also recounts that Leavitt said, Smith was speaking in
ignorance out of both ends.
Leavitt’s version further confirmed Smith only in that as
management’s committee was leaving the room, Smith said,
management’s pretty sorry, they won’t even let their nego-
tiators talk; and, Leavitt had responded to Smith, not angrily,
but straightforward, why do you keep putting walls and bar-
riers between us every time we act together and negotiate;
and, that Smith replied, ‘‘I know what I’m talking about.’’
However, both Smith and Leavitt accounts indicate there was
more to the conversation, and such is established from the
recollections of others. Norris had (I find) generally compat-
ible recollection (though placing it when they broke for
lunch), that Smith had held up the wage schedule and said
to Coleman and the other foremen, you know that they’re
doing your both wrong; and, that Leavitt then said, Smith
was blowing off a lot of hot air; and, that Smith was igno-
rant and stupid.
It is warranted relatedly to note that variance in the several
witnesses’ accounts as to whether this discourse between
Smith and Leavitt occurred as management was leaving on
a caucus or for lunch appears to be accounted for in the main
because the stated caucus was extended into lunch hour be-
fore the parties returned to bargaining; and thus witnesses
would have understandably (if confusedly when viewed over-
all) variously recalled and described departure remarks to ei-
ther a caucus or lunch break. In any event, Leavitt has ac-
ceded he had told Smith that Smith was ignorant in this
morning meeting, though, in contrast with Hatcher, Ford, and
others, Leavitt asserted he did so only once.
Teddy Ray Bullard is employed as an electronic technician
at BEMC’s Whiteville district. (Bullard was initially em-
ployed in advertising for the Company, where he had won
awards; and, the General Counsel would have Bullard’s
credibility especially enhanced on that account and on the
basis of Bullard’s testimony that he enjoys working at the
Company; and, Bullard’s seemingly uncontroverted assertion
that he has a good relationship with all the people there.)
Bullard has essentially corroborated Norris, in that Bullard
recalled that after they had adjourned for dinner at the end
of the morning session so that they could caucus on the
Company’s wage proposals, as the company team was pre-
paring to leave for dinner Smith spoke collectively to every-
one in the room, expressing his disatisfaction with the Com-
pany’s wage proposals. Bullard confirmed Leavitt started
throwing some remarks at Doug, such as that Smith was just
blowing it out: that he blows it out all the time: and that
he was just speaking out of ignorance.
Hatcher has only the more congruously then further re-
called Smith had also said to Leavitt, ‘‘That’s why nobody
likes you, because you’re always making remarks.’’ Indeed,
though Leavitt said only that Smith had then fired something
back at Leavitt that Leavitt initially didn’t exactly recall,
Leavitt has as much as confirmed the same, in that Leavitt
later recalled Smith had said the men with Leavitt and em-
ployees at this Company hate you. I credit Hatcher’s recol-
lection that Smith told Leavitt that nobody liked Leavitt be-
cause of his remarks. Norris confirmed Smith that Leavitt
had continued to speak as he went down the hallway, but
neither could hear what was then being said. In that regard,
I find it also likely, and I credit Leavitt that Leavitt had then
told Smith, why don’t you put a sock in it, as Leavitt walked
out of the room.
As the Union was not yet ready at a company 12:30 p.m.
check, the parties broke for lunch. After about an hour, the
Union notified the Company they were ready to start. The
Company returned to the room between 1:30 to 1:45 p.m;
and shortly thereafter the parties reconvened. Smith had re-
called that the meeting reconvened about 1:35 to 1:40 p.m.;
and Leavitt recalled they did at 1:45 p.m.
(2) In the afternoon session
During lunch the union committee had discussed all the
Company’s counterproposals that the Company had recently
given them. They came to agreement on several of the arti-
cles, but the wage package was up in the air. After the par-
ties reconvened, Attorney Smith asked Ruff if he had looked
over the wage package, and if anything could be done. Ruff
said the Union had come to an agreement on possibly one
or two proposals, and, with cosmetic changes there could be
a probable agreement on a couple of others.
Leavitt recalled there was some preliminary discussion, but
as they got seated and began to discuss (wage) issues again,
Ruff said, I really can’t pinpoint those people that don’t get
salary increases. Ruff said he didn’t have the information, or
it wasn’t available. Ruff then asked will you get me a current
list of those specific salaries of bargaining unit employees
that would apply to the wage increases. The Company agreed
to do so.
Leavitt didn’t perceive Union’s inquiry at this time was
about certain increases that were based on evaluations that
employees may or may not have received since the last list
they had received. Individual wages for employees through
the end of 1989 had apparently been raised by evaluations
at different times in the year for individual employees.
Leavitt recalled the point of the red circling discussion that
then developed was to identify employee earnings in rela-
tionship to the salary proposal. Leavitt’s perception of the
discussion was not that Ruff was trying to identify all the
people who were at the top of the salary range, including
those who may have received evaluations since his last list,
but rather, Ruff wanted a current list of where everybody
stood. It is clear enough and I find Ruff’s request was made
to reasonably determine how all the unit employees would be
affected by BEMC’s most recently submitted wage proposal.
According to Leavitt, at this point Attorney Smith and
Ruff took up discussion of the mechanics of wage and salary
administration, how to get it administered. There was some
discussion of red circling salaries. Leavitt recalled that they
discussed that (some) employees were too high, and (some)
too low. Smith (and Norris) confirmed that as the meeting
progressed Attorney Smith and Ruff were both talking about
wage rates; and, how they were going to close the gap be-
tween the lowest and highest paid serviceman and come to
an agreement on one rate. Attorney Smith said the only way
he knew to do it was to red circle some people.
Leavitt’s recollection was that when the discussion of
wage administration (red circling) had thus come up, Smith
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in a loud voice had said if you’ll quit spending money on
industrial centers, you can pay these men a fair wage. (On
cross-examination, Leavitt related Smith said if we (BEMC)
would stop putting money in the industrial centers, the Com-
pany would have money enough to pay more wages to em-
ployees.) Leavitt recalled that at that time Attorney Smith
looked at Smith and said, Doug. You know the one speaker
rule, this is a warning.
Despite Hatcher (and Norris) apparent nonrecall of an in-
dustrial center discussion at this meeting, on cross-examina-
tion, Smith acceded that Smith had said something like if the
Company can spend all this money on these business indus-
trial centers, they can pay these men more money, though
not word for word.
In regard to industrial centers, Leavitt explained (gen-
erally) that BEMC had applied for and been awarded signifi-
cant amounts of grant money to be able to put together a
business incubator project. Leavitt relates all of this is funded
by noninterest bearing loans, or specific grants. The news-
papers had publicized that they have three, and were working
on a fourth. In contrast, Smith testified that he did not be-
lieve the business industrial centers are generated by govern-
ment grant money only. It was Smith’s understanding from
having read the newspapers that the co-op was going to
spend its own funds on business incubator centers; and, there
was thus money from both involved. Be the actual total
funding source as it may, it is clear and I find (again) Smith
was talking at the time about a protected subject of wages.
Leavitt did not definitively testify that Leavitt had said
that Smith was speaking out of ignorance and stupidity in re-
gard to the statement that Smith made about the industrial
centers. Hatcher did not recall Leavitt saying anything about
Smith being ignorant in making a statement about the indus-
trial centers. Even more notably, Smith has (candidly) denied
that Leavitt did. In light of that Smith denial, and Hatcher
confirming nonrecollection of same, any indication in the
evidence to the contrary is wholly unpersuasive that Leavitt
on that account and occasion had called Smith ignorant.
However, I do credit Hatcher’s recollection of Leavitt saying
Smith was speaking out of ignorance and/or stupidity when
Smith was talking about (i.e., against) the Company’s offered
wage packet.
Leavitt (candidly) acknowledged that he thought Smith
was not informed about the background on the industrial cen-
ters, but asserts it wasn’t Smith’s uninformed comments
thereon that Leavitt had thought were disruptive. Rather,
what Leavitt asserts he felt was disruptive was that at this
time (as Leavitt viewed it), both Attorney Smith and Ruff
were in the middle of a very intricate discussion about the
mechanics of the Company’s wage and salary proposal which
was a very difficult issue. Leavitt’s stated view of the critical
nature of the discussions on the wage administration and red
circling at this time of the negotiation meeting was based on
a (seemingly) uncontroverted assertion that both Ruff (and
Hatcher) and Attorney Smith had also spoken about how dif-
ficult it would be to get those things (high and low individ-
ual rates in classifications) together. Leavitt asserts (and thus
not without foundation, at least from his own vantage point)
that he thought that it was disruptive that Smith had made
a statement about BEMC spending money on industrial cen-
ters in the middle of that difficult discussion.
According to Leavitt, Attorney Smith and Ruff went back
to the discussion about the mechanics of wage administra-
tion. The red circle situation came up again. There was some
question of the servicemen, one (getting) this, and one that;
and, they were working over the mechanics of it. Leavitt re-
called at that time Smith said you need to pay these men a
fair wage. Attorney Smith looked at Smith and said that’s
enough. Don’t speak out anymore. We’re not going to listen
to it. Leavitt has Smith respond, you are going to listen to
it. I’ve got something to say and you’re going to listen to
it. According to Leavitt, at that point Attorney Smith closed
his books, and said we’re out of here.
Leavitt has asserted Smith wasn’t complaining about how
unfair management was to the workers, but how the wage
rate wasn’t right, and we (the Company) were going to listen
to them about the wage rates. In that regard, Smith’s recol-
lection is generally compatible, namely, that Smith had said
that the men were worth more money than the Company was
offering (as clearly a protected employee position on wages).
Smith confirms Attorney Smith then told Smith that was
Smith’s first warning (referring to the gag rule the Company
had sought to impose on the Union’s committee). Smith’s
abbreviated initial recollection (I find no more complete than
Leavitt’s was), is, Smith said, ‘‘Britton you know these men
are worth more money.’’ Smith believed Attorney Smith then
said, ‘‘We’re out of here.’’
Hatcher confirmed Ruff and Attorney Smith were talking
at the time about the serviceman pay rates and red circling;
and (I find) Smith again related his general disatisfaction
with the wage scale that the Company was offering. (I have
here credited Bullard’s recollection to that effect rather than
Hatcher’s that Smith had again commented about the ware-
housemen being paid more than the journeymen wiremen.)
However, I do otherwise credit Hatcher’s corrroborated
recollection that on this occasion Smith had first asked Ruff
below, if he could speak and Ruff had said yes, go ahead
and speak; and, that Smith had then made the point that the
wage package was unfair to the employees. Smith said, ‘‘The
Company can afford to pay the men more than this. Hatcher
recalled Attorney Smith (and I find first) then said, ‘‘And
you can shut up, Doug.’’
Though Norris related Attorney Smith warned Smith only
once that afternoon, Norris recalled when Smith said to Ruff,
‘‘I would like to speak,’’ Attorney Smith had (I find, pre-
liminarily) said, ‘‘We’re not going to have no outburst. And
if so, we’re leaving.’’ Contrary to a Smith apparent nonrecol-
lection (at least on one occasion, though see Smith account
below for an indicated more congruous affirmance in other
context), Bullard has (essentially) confirmed Norris that At-
torney Smith then told Smith if he didn’t shut up they were
going to leave. Ford (essentially) confirmed both that Attor-
ney Smith told Smith he was out of order, and if he contin-
ued to be out of order that they would leave.
In summary, I credit Smith that while Attorney Smith and
Ruff were dicussing certain wage issues, after asking for and
receiving Ruff’s permission to speak Smith told Attorney
Smith (essentially) that a wage package was what it was all
about, and nothing had been changed in the wage package;
that Employer’s present wage offer was unfair to the men;
that it was not sufficient; and, the Company could afford to
pay the men more. I credit essentially mutually consistent
and corroborative accounts of Norris, Ford, and Bullard that
405BRUNSWICK ELECTRIC CORP.
Attorney Smith at that point told Smith to shut up, and
warned Smith if Smith did not stop talking, Employer’s team
would leave. I credit Hatcher’s (and Norris’) corroboration of
Smith’s reply that he wouldn’t shut up; he had been given
permission to speak; and he would speak his mind. (Norris
confirmed Smith had said he was going to speak his mind.)
Thus I credit Hatcher’s (essential) corroboration of Smith
in a Smith continued reply, ‘‘No, I won’t shut up. This is
what it’s all about, is an increase for all the employees out
there.’’ Attorney Smith then told Smith, if you speak anymore
out of turn (or interrupt), we’re out of here. Smith then said,
‘‘If that is what it takes for you to leave, then I suggest you
go ahead and leave.’’ (Bullard has perhaps more cogently re-
called Smith said, if that’s what you want to do, then, go
ahead and leave.) With that (I find), Attorney Smith shut his
papers up, and said, were out of here. Attorney Smith then
commenced to pick up all his papers, and put them in his
file.
With his wage proposal copy in hand, Smith came around
his table, and came directly in front of Attorney Smith at
management’s table, saying, ‘‘Britton, you know these men
are worth more than this. It’s ridiculous you offering a first-
class lineman eleven dollars and three cents an hour. But
down here you’re offering the Warehouse coordinator three
dollars more an hour. The reasoning behind that is that he’s
spied against us and run us down the whole time.’’
Smith’s stated reasoning for the compared warehouse co-
ordinator’s rate, as a statement made (as opposed to opinion
held) by Smith at the time, appears to be uncorroborated by
any other witness. Nor is it even adequately supported as
likely said by other evidence. Thus, I do not credit it as a
statement likely then made by Smith, though I do not dis-
count a likelihood of it then being a viewpoint held by
Smith. Relatedly, Norris has confirmed only that Smith was
pointing out why could they pay a warehouseman more than
a first-class lineman. Ford confirmed even more generally
Smith asked, why can’t you all pay more money. In light of
what the fair import of such a specific assertion of underly-
ing reasoning for Smith’s continued questioning of the two
rates, if not in the inherent likelihood of its eliciting some
employer response, it seems to me that some other witness
(at least some of whom were linemen) would have confirmed
that Smith had stated that reasoning in putting the question
of the comparison to Attorney Smith, if Smith had expressed
it so at that time. To extent Smith testimony would indicate
he had then made that statement of reasoning, I do not credit
it.
It is undisputed that as Smith came over, Smith had the
wage proposals in his hand. According to Leavitt, Smith
started waving it in Attorney Smith’s face, in addressing At-
torney Smith and Leavitt in front of their table. Employer
would draw support from close observance of General Coun-
sel’s witnesses in the matter of Smith waving the wage pro-
posal in Smith’s face, though not pressing direct inquiry
thereon, and while seemingly able to draw little support from
its own witnesses in that area.
In any event, Smith categorically and credibly denies that
he was waving the wage proposal in Attorney Smith’s face,
or at all; and, while admitting he was in front of Attorney
Smith, denies that he was in front of Attorney Smith’s face,
relating there was a table between them, and indeed recalling
Attorney Smith was even then backed away about 3’ from
the table, in the act of getting his stuff ready (to leave).
Bullard had no recollection of Smith waving the paper in
Smith’s hand. Company witness Batts recalled Smith came
around the table, with the wage proposal in his hand; ap-
proached management’s table; and, first engaged Attorney
Smith in discussion about the men needing better pay.
Though Supervisor Coleman initially had asserted he felt like
Smith was talking to both (Attorney Smith and Leavitt),
Coleman conceded, he’d have to say Leavitt spoke up first
(to Smith). Though I do not credit Leavitt’s account of Smith
waving the Employer’s wage proposal in Attorney Smith’s
face, I find it likely Smith pointed to the rates on the paper
to Attorney Smith when making the comparison.
Thus, I credit Smith (and I find) that after Smith ap-
proached management’s table, Smith first spoke to Attorney
Smith about wages; and, in doing so, Smith did not wave the
Company’s wage proposals provocatively in Attorney
Smith’s face; nor did Smith otherwise get in Attorney
Smith’s face; and, it was Leavitt who on his own at that time
broke into (interrupted) Smith’s conversation with Attorney
Smith on wages. I find that at this point Smith clearly still
occupied a protected status in discussing wages, and one that
was not lost because Attorney Smith had declared Employ-
er’s participation ended because Smith would not comport
with Employer’s unilaterally imposed gag rule.
(3) The first heated Leavitt-Smith verbal confrontation
Hatcher has testified (I find credibly, at least to this ex-
tent) that he made no effort at that point to get up and get
Smith back, as there was no need to. Ford’s recollection was
Leavitt had then said, why don’t you shut up, I’m tired of
hearing you. Hatcher’s related recollection was that Smith
pointed at the wage package, looked down at Coleman, and
then the other foremen, and said, ‘‘This is what it’s all
about, boys. See what they’re trying to do to us? See what
they’re trying to do to you all? We’ve got people over there
that can’t afford to leave [sic] in decent places.’’ Hatcher re-
lates (and others essentially confirm) that Leavitt in this con-
versation then said (at least) a second time that day, ‘‘Doug,
you’re speaking out of stupidity. You don’t know what you’re
talking about.’’
Smith backed over to Leavitt, who was still sitting. (Al-
though Smith has related he approached Leavitt’s table, I
find it was more a matter of backing up but a step, or step-
ping to the side. Though Leavitt was sitting kiddycorner or
straddling both tables, Leavitt was still more at the same
table as Attorney Smith, who was in the middle. Thus, I find
Smith backed over as Hatcher recalled.) Consistent with in-
terim statement by Leavitt of Smith’s stupidity or ignorance
on the wage issue, Smith has related Smith then said, ‘‘You
think I’m ignorant. Behind me, pointing to Sidney (ll), is
a man that has been here twenty-one years.’’ Smith said
‘‘That for the last year and a half he has struggled to build
on to his home, but you, on the other hand, have been here
nine years and you’ve got beach property and nice cars and
nice trucks.’’ Smith then said, something is wrong, or (as
Smith has stated he believed he said at the time) crooked
here.
On cross-examination Smith acknowledged he didn’t know
for a fact that Leavitt owned any beach property, then relat-
ing a contract(or) had told Smith that they had built a place
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for him. (Smith didn’t know if it was actually Leavitt’s fa-
ther-in-law’s house.) Ford has (essentially) corroborated
Smith spoke in that manner, in that Ford related that Smith
had turned and said to Leavitt, you’ve been here for seven
or eight years and living nice and this man, pointing to Syd-
ney ll, has been here for 20 some years and can’t even
hardly afford to remodel his house. (Even the more signifi-
cantly Ford recalled Leavitt had then rose from his chair, and
with his finger in Smith’s face, told Smith to shut the hell
up, below.) Supervisor Coleman recalled if not exactly the
same, in summary, fairly compatibly, Smith told Leavitt they
were cheating the men; they ought to pay the men; and,
Leavitt talked back to Smith at the same time.
In sharp (and a remarkable) contrast, Leavitt not only de-
nied putting his finger in Smith’s face, Leavitt has asserted
that he didn’t remember Smith at any point along here talk
about any other employees’ economic standing as compared
to Leavitt’s. Indeed, Leavitt has specifically asserted he
didn’t remember the Sidney ll situation and a few others
(but Leavitt has not categorically denied the same). Presently
I note that such nonrecollections simply strain credulity as
being too convenient. Leavitt otherwise asserts the main
issue that he remembers (Smith say) was they need to be
paid a fair wage, and we were going to listen to Smith about
paying them that fair wage; that Smith said this was the
issue; and said, the Company was treating these men unfair.
Though it is clear Smith had made all such statements, I
presently also credit Smith’s above account that at this time
in the developing heated discussion between Leavitt and
Smith, one initiated by Leavitt’s intemperate interruptive re-
mark and insult, Smith compared Leavitt’s perceived eco-
nomic status with that of unit employee and attending ob-
server Sidney ll; and in doing so Smith said something
is wrong, or crooked here, to which Leavitt took immediate
and heated affront.
(a) The conflict in assessing provocation
Smith denied he was leaning into or over the table to
Leavitt, though doing so somewhat in talking to Leavitt who
was then seated would appear likely. In any event, Smith’s
version is Leavitt had then leaned (towards Smith) and stuck
his finger in, and about 8 inches to 10 inches from Smith’s
face, saying something that Smith was unsure of, but with
Smith recalling he (immediately) told Leavitt ‘‘Get your fin-
ger out of my face. Chip Leavitt.’’ Smith denies he then
moved the table to gain access to Leavitt. Smith relates
Leavitt had first also said, ‘‘I’ll stick my finger in anybody’s
face I want,’’ or something to that effect; and, it was then
that Smith moved the table, saying something like, ‘‘Well
you’re not going to stick it in mine.’’
Leavitt’s version is not so cohesive. Leavitt related Smith
kept pointing the wage proposal at them, and said, that they
were going to listen to what Smith had to say, and, they
hadn’t listened before. Leavitt then told Smith, Smith had
made threats and accusations, called names, and Smith had
continually disruted the meetings; and, Leavitt asked Smith,
how could we negotiate under this situation. Leavitt asserts
this upset Smith a great deal. Leavitt has further asserted (al-
beit somewhat disjointedly) that it so greatly bothered him
that Smith came in front of the table and Leavitt and said,
you know, you’re not as tough as you think you are; and,
Leavitt retorted in kind, saying, you’re not as tough as you
think you are.
According to Leavitt, it was at this point Smith grabbed
the end of the table and moved the table to his (Smith’s) left
away. Leavitt relates Smith then came right in Leavitt’s face;
and, on other occasion, that Smith walked up to Leavitt nose-
to-nose, though acknowledging there were no punches
thrown. Leavitt would have been necessarily already standing
at that time. Leavitt relates they repeated the same statements
to each other, namely, Smith you’re not as tough as you
think you are, and Leavitt retort, you’re not as tough as you
think you are; and, they stood there for a brief moment, or
period.
Smith has denied that he said to Leavitt, ‘‘You’re not as
tough as you think you are.’’ However, Smith has acknowl-
edged that there were some things said between them, that
Smith did not recall. Smith denied that they were then 4 inch
apart, but acknowledged that he (Smith) had taken a half step
(foreward), but also that Leavitt also came, or moved closer
to Smith. (Not credited is Smith’s recollection of Leavitt then
rising. Clear weight of other credited accounts is that Leavitt
was already standing.) Smith recalls Attorney Smith then
came down the table; and he shuffled Leavitt back out the
rear doorway onto the porch, and away some.
Leavitt initially stated he thought it was just chatter be-
tween them. On cross-examination, though Leavitt continued
to assert he was not upset at that time, Leavitt then conceded
their voices were continuously rising. Indeed, on further
cross-examination, Leavitt also acknowledged that they were
not just standing face-to-face trading statements of you’re not
as tough as you think you are, like kids. They weren’t smil-
ing, and they weren’t happy about it; they were at a stand-
point (sic) looking at each other.
Leavitt relates Attorney Smith put his hand on Leavitt’s
arm, and said come on, Chip; and, Leavitt remembered dis-
tinctly that Charlie Batts also said it’s not worth it. So,
Leavitt walked out the double doors directly behind him.
Leavitt thought Batts was alluding to the fact the physical
confrontation would (sic, but in context, wouldn’t) do any-
thing for anybody. Leavitt’s stated view was Batts felt he
had to tell Leavitt that Leavitt shouldn’t have a physical con-
frontation because Smith had advanced on Leavitt, pulled the
table out, and advanced in his face. With that Leavitt walked
out the door.
In contrast with Leavitt assertion he was not angry, Super-
visor Batts has confirmed that both Attorney Smith and Batts
had started talking and got Leavitt settled down, and got him
on the porch; and Supervisor Coleman confirmed Attorney
Smith and Batts got Leavitt calmed down enough that they
eased Leavitt out on the porch back there. Though Leavitt
on cross-examination continued to assert Batts’ statement
was not made because Leavitt was very angry, Leavitt has
otherwise as much as acknowledged he was very angry, in
that Leavitt relates they basically stood out there on the
porch for a few (3 to 5) minutes to clear our heads; discuss-
ing really nothing out there, just taking a breather, and, try-
ing to allow things to cool off. Then Leavitt decided to leave
as the negotiations were finished.
Leavitt has denied that whenever Smith spoke about the
wages, that was a condition that Leavitt could not abide.
Leavitt also denied he had a problem with a mere employee
complaining to him or management about wages. Leavitt re-
407BRUNSWICK ELECTRIC CORP.
lates they were having an equal discussion, which Leavitt
states he thought was the point of negotiations; and, Leavitt
acknowledged that Smith had as much right to Smith’s opin-
ion as Leavitt would have to his own; and, the fact that the
cooperative wanted one type of wage plan, and the Union
wanted another, Leavitt asserted was what negotiations are
about. (Hatcher relatedly recalled Smith said, the Company
had mentioned red-circling for a catch-up, and didn’t want
to give them a raise at all (below); but they (employees)
were looking for an across-the-board increase.)
On cross-examination, Leavitt stated he believed Smith
had been disruptive in negotiations. Leavitt related during the
negotiations Smith had constantly more than complained
about management officials, Leavitt repeated, Smith had
made accusations, and threats about their job security.
Though Leavitt had given prominence to Smith statements in
this meeting that management was unfair in dealing with the
wage proposal, Leavitt related it was his view Smith hadn’t
focused on wages (only), Smith had talked on corruption;
and, talked on other different issues during negotiation ses-
sions. There is generalized support in even Leavitt’s account
that Leavitt had perceived Smith had accused Leavitt of cor-
ruption in making the economic comparison of Leavitt with
Sidney ll and then saying that there is something wrong
or crooked here, but not only with Leavitt, below.
(b) Other considerations of corroboration
Hatcher confirmed Smith had backed over to Leavitt, and,
that Smith was in front of Leavitt. Hatcher corroborated
Leavitt stood up; and Leavitt leaned across the table and put
his finger in, and 2 to 3 inches from Smith’s face. Hatcher
also corroborated Smith said, don’t stick your finger in my
face. Indeed, Hatcher has Leavitt answer even more provoca-
tively, ‘‘I’ll stick my finger in anybody’s face I want to.
What are you going to do about it?’’ (The latter statement
attributed to Leavitt of what are you going to do about it,
though it would appear consistent with later Leavitt ascribed
Smith statement made to Leavitt, you are not as tough as you
think you are, appears not corroborated by any other wit-
ness.)
Hatcher relates otherwise, that’s when he saw the table ei-
ther shoved by Leavitt, or (as Hatcher had earlier recorded
in affidavit, and I find) pulled back by Smith. Hatcher relat-
ed, Smith didn’t pull the table out far enough for any one
to go between; that he didn’t see them get nose-to-nose; and,
that it didn’t appear to Hatcher to be an opening that any-
body could get in between, or get to each other, as the tables
were (still) close. Hatcher recalls Attorney Smith then said
to Leavitt, while grabbing him by the arm, ‘‘Come on, let’s
go outside. Get outside, out, out.’’ Hatcher recalled Smith
then talking to the foremen, said this is what it’s all about
boys; and, see what they’re trying to do to us; and they don’t
want to give us any increase at all. They (Company) had
mentioned red-circling for a catch-up, but we (Union) are
looking for an across the board increase.
Norris, though (erroneously) recalling it as after Leavitt
had told Smith that he was just blowing off a lot of hot air,
has otherwise corroborated that Leavitt had stuck his finger
in Smith’s face; and, that Smith told Leavitt to get his finger
out of Smith’s face. Norris (as compared with Hatcher), cor-
roborates that Leavitt (only) told Smith that Leavitt would
stick his finger in anybody’s face he wanted. Norris other-
wise corroborated Smith, that when Leavitt was leaning
across the table and had his finger in Smith’s face, that was
when the tables came apart. Bullard confirmed Leavitt point-
ed his finger in Smith’s face. Ford recalled Leavitt rose from
his chair and told Smith to shut the hell up; and, while stand-
ing, Leavitt pointed his finger in Smith’s face. Ford also con-
firmed that Smith said, ‘‘Get your finger out of my face.’’
Preliminary Analysis of Leavitt and Smith Mutual
Provocations
Question of credit of finger pointing momentarily aside,
effectively, four witnesses of the General Counsel have, if
variously, no less substantially corroborated Smith, not only
that Leavitt had stuck his finger in Smith’s face, but that
when Smith told Leavitt to get Leavitt’s finger out of
Smith’s face, Leavitt had (even more provocatively) re-
sponded he would stick his finger in any body’s face he
wanted; and, that that was when the table (more in front of
others, than Leavitt) was pulled back by Smith. Though I am
not persuaded and do not credit Hatcher’s recollection that
on this occasion Leavitt actually said what are you going to
do about it, I am constrained to observe that would appear
as but fair import of the above statement attributed to Leavitt
that Leavitt would stick his finger in any body’s face he
wanted, if credited (as it is for the reasons set forth below);
and, thus likely to itself have elicited an indicated further
heated Smith response, whether it was well you’re not going
to stick it in mine, or, as plausibly that Leavitt was not as
tough as he thought he was.
Presently, I have no doubt and I find that an increasingly
heated exchange had occurred between Smith and Leavitt, in
which both had become increasingly angered with one an-
other, and had traded insults. Insofar as prior provocation of
Leavitt is advanced, I find prior Smith statements had explic-
itly compared Sidney ll and Leavitt (perceived) eco-
nomic conditions, coupled with the (credited) Smith assertion
something is wrong or crooked, unquestionably had imme-
diate significant impact in further angering Leavitt, who was
disturbed, as Leavitt viewed it, over Smith’s unproductive
interruptions in the negotiations, that had again lead to Attor-
ney Smith’s enforcement of Employer’s gag rule.
Whether the Sidney ll and Leavitt economic compari-
son, as coupled with Smith’s statement something is wrong
or crooked here, reasonably caused Leavitt (or Coleman) to
then view Smith’s statements as unfounded accusation of
some corruption (or of cheating the men) at the time, either
of which would appear as possible inference for Leavitt (or
Coleman) to draw therefrom, an additional underlying cir-
cumstance thereof is no less clear and inescapable. It is that
it was Leavitt’s own prior demeaning interruption and inter-
vening insulting statement about Smith’s ignorance while
Smith was (as I find) lawfully pressing with Attorney Smith
the employees’ position of an inadequate company wage
offer that had in turn then lead directly to Smith’s related
economic comparison of Leavitt and a unit employee and, to
Smith’s related statement that included the insulting and ac-
cusatory remark something was wrong or crooked here.
In contrast with the broad based corroboration of Smith
that Leavitt had stuck his finger in Smith’s face, and, the
heated discourse and confrontation that followed, company
witness Batts testified (only) that he did not at any time see
Leavitt raise his hand or his finger in Smith’s face. Super-
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
visor Johnson stated (generally) at the time Smith walked up
and they passed words, supervisor Johnson didn’t see Leavitt
make any motion with his hands at all. Coleman had also re-
lated he didn’t see Leavitt stick his finger in Smith’s face at
any time along there, though Coleman, who had initially as-
serted he was looking right down the table at them and
didn’t see any Leavitt hand movement, later admitted he did
not see Leavitt’s hands at all. However, no company witness
appears to address, let alone convincingly deny, the evi-
denced Smith–Leavitt dialogue on the very subject of finger
pointing. In any event, I credit the well corroborated account
of General Counsel’s witness Smith that there was such
verbal discourse on the occasion of Leavitt’s pointing his fin-
ger in Smith’s face, as has been set forth above.
However, with regard (otherwise) to Leavitt attributed
statement by Smith as made to Leavitt that you aren’t as
tough as you think you are, the weight of evidence would
appear supportive thereof. Coleman corroborated Leavitt
Smith told Leavitt, you aren’t as tough as what you think you
are; and Leavitt then told Smith. ‘‘You’re not as tough as
what you think you are either.’’ (Coleman recalled about that
time Smith pulled the table apart; and, Smith got sort of in
between the two tables right up at Leavitt, and they argued
back and forth.)
Company witness Batts also (but only) recalled of the
Leavitt–Smith initial verbal confrontation, when Smith went
up to Leavitt and started talking to him, Smith said some-
thing like you’re not as tough as you think you are; and,
Leavitt said something of the same order back. Batts much
less credibly asserted he couldn’t say if there was anything
said between the time when Smith had said, ‘‘these men
need better pay,’’ when talking to Attorney Smith, and when
Smith said to Leavitt ‘‘you’re not as tough as you think you
are,’’ rendering Batts reliability in additionally recounting
Smith then pulled the table apart and got right into Leavitt’s
face, appear more selective, and questionable.
Though Johnson relates (at least generally) they passed
words, the only thing Johnson (also) remembered was he
thought Smith told Leavitt that Leavitt wasn’t as tough as he
thought he was; that Leavitt told Smith ‘‘you’re not as tough
as you think you are either(;)’’ and, that Smith had then
pulled back the table at which Batts and Johnson were seat-
ed. Johnson confirms Batts told Leavitt to come on out, it
wasn’t worth it; Attorney Smith and Coleman told Leavitt
the same thing; and, Attorney Smith, Leavitt, Johnson, and
Batts then stepped out on the porch.
Neither Ford’s (or Bullard’s) accounts (direct or more sig-
nificantly in rebuttal) appear to address the matter of further
Smith and Leavitt cross statements specifically on not being
as tough as you think you are. Nor did any of General Coun-
sel’s witnesses otherwise adequately support Smith’s denial
of such statements, which Smith, in my view, had less firmly
or convincingly ruled out. Thus, on the weight of what ap-
pears to me as the more credible evidence, in this instance,
I credit Leavitt’s corroborated account that, then (but only
after, as I have found above, and in response to Smith state-
ment ‘‘Get your finger out of my face, Chip Leavitt(,)’’ and
Leavitt’s own response that he would stick his finger in any
body’s face he wanted), I find Smith then had more likely
said, in reply, you know, you’re not as tough as you think
you are; and Leavitt retorted, you’re not as tough as you
think you are, either.
Smith testified credibly that this first confrontation was
verbal only. Bullard corroborated there was no physical en-
counter. Norris confirmed Attorney Smith (promptly) got
Leavitt back outside. Though Norris related this is not when
they got nose-to-nose, there is no question the verbal con-
frontation had progressed to a point just short of physical en-
counter. Bullard confirmed when Leavitt stood up, the two
were standing almost nose-to-nose, until some of the men
separated them. However, it is also clear and I find that both
Smith and Leavitt, though caught up in a heated verbal ex-
change, each had enough control left not to physically en-
gage each other. Individual personal restraint, and cooler
heads had prevailed, this time.
In the above circumstances then, in my view it makes no
difference whether Smith moved the table after Leavitt state-
ment he would stick his finger in anybody’s face he wanted,
as Smith and others credibly recalled, or after Smith’s initial
statement, you know, you’re not as tough as you think you
are; and, Leavitt retort in kind, as Leavitt and others credibly
recalled. The fact is both were caught up in developed heated
exchange, in which both had insulted each other; in which
both were physically at fault; but in which neither had made
actual physical contact.
Thus, weight of credible evidence has convinced me (and
I find) that after being intemperately interrupted in a lawful
conversation with Attorney Smith, and then again called stu-
pid or ignorant by Leavitt, in then comparing unit employee
and observer Sidney ll to Leavitt’s (perceived) personal
economic standing, Smith had additionally said something is
wrong and/or crooked here, which Leavitt reasonably took as
being personally accusatory, and which had in turn angered
Leavitt to the point (as Ford credibly recounts) Leavitt then
rose telling Smith to shut up, if not the hell up. However,
on clear weight of the more consistent and mutually corrobo-
rative evidence, I further find in rising and telling Smith to
shut up, Leavitt raised his hand and pointed his finger in di-
rection of and in sufficient proximity to Smith’s face for
Smith (and others) to conclude it was being pointed in
Smith’s face; and, to which additional affront Smith reg-
istered an immediate verbal response to remove the affront-
ing physical gesture, as Smith has credibly related, with sub-
stantial corroboration by Hatcher, Norris, Bullard, and Ford,
and with essentially unconvincing denial by Leavitt and other
company witnesses.
Moreover, I further find that when Smith told Leavitt to
get his finger out of Smith’s face, Leavitt even more pro-
vocatively responded he would stick his finger in anybody’s
face he wanted. In those circumstances I find that whether
Smith parted the tables (immediately) thereafter and then
took a half step towards Leavitt which Leavitt matched, or
did so only (immediately) after Smith had said, you know,
you’re not as tough as you think you are, and Leavitt had
retorted, and you’re not as tough as you think you are, ei-
ther, it is clear to me in either event that each was alter-
natively insulting and provoking each other, but that this first
incident had started with Leavitt’s initial upset view of
Smith’s lawful press of alternative employee wage position
with Attorney Smith, that resulted in an increasingly heated
oral exchange of insults and physically affronting gestures
that developed out of the wage discusion, but ended with no
physical encounter engaged in by either Leavitt or Smith.
409BRUNSWICK ELECTRIC CORP.
(c) The subsequent Smith-Coleman conversation
When Leavitt went out to the back porch with Attorney
Smith, Smith moved to his side of the table (below). Smith
recounts he said to Coleman, who remained in the room, you
might as well get your stuff and get out, or, possibly, get the
hell out of here. Coleman recalled, and Johnson standing by
the porch doorway confirmed, Smith looked at Coleman and
said, ‘‘Reno, you all need to get your alls mess and get out
of here.’’ Coleman said, ‘‘Doug, that’s what we are going
to do.’’ Though Coleman could tell Smith was hot, Coleman
didn’t believe Smith was angry at him; and he did not take
that as a personal threat to him.
Bullard related he had looked out on the porch and saw
Attorney Smith pointing toward the end of the building as
if to advise or direct Leavitt to leave that way. The parties
had used the end unit for negotiations before. Having ini-
tially related that the porch didn’t lead to the ground that he
knew of, Leavitt has seemingly later inconsistently asserted
it was the prior evening before giving hearing testimony, on
a visit to that location, that Hughes had brought to his atten-
tion for the first time, that you could exit from the porch off
that end of the porch walkway. Be that as it may, and con-
trary to General Counsel’s reliance thereon and on an argu-
ment that the need for the cooling off period on the porch
supported Attorney Smith’s direction to Leavitt to leave that
way, the evidence presented is unconvincing: that Attorney
Smith actually directed Leavitt to leave by porch exit; that
Leavitt had on his own elected not to do so; or, that Leavitt
had viable options of leaving through other (occupied)
rooms. Nor, more importantly in my view, did Leavitt have
obligation or need to leave by the porchway. However, nei-
ther am I persuaded Smith had in the interim taken up strate-
gic position in anticipation of a further confrontation with
Leavitt, as is seemed urged by Respondent.
Smith confirmed union people told Smith to come back to
their side of the room. Thus, Norris recalled Hatcher or Ruff
(though acknowledging neither had left their side of the
table) said, ‘‘Doug, just move back on our side of the
room.’’ Hatcher however asserted he didn’t see that it was
necessary for Ruff or himself at this time to get up and go
over there and talk to Smith nor did he see where it was nec-
essary for Attorney Smith to chastise Leavitt for anything.
Hatcher’s view was they (Leavitt and Smith) were having a
verbal conversation; that there often are verbal confrontations
on both sides; and, some of them get a little bit boisterous.
Thus, Hatcher didn’t figure that he had to then go over there
and pull Smith back, or even that Attorney Smith had to pull
Leavitt back, because, as Hatcher viewed it, they haven’t
[sic] been anything other than opinions (expressed), in
Hatcher’s opinion.
Norris’ recollection was no one touched Smith; and Smith
walked right back over to their side of the room. In contrast,
Ford related when Leavitt stood up and pointed his finger in
Doug’s face, Ford had exited his chair (at the end of the
Union’s table near the door), and walked up to the company
negotiating table. Though Coleman didn’t see anyone from
the Union side come over and get Smith; and, though Hatch-
er didn’t (even then) see need, Hatcher nonetheless has con-
firmed Ford had walked over there and had told Smith to
come on back over to their side. Smith testified then only
the more credibly Ford did, recalling Ford had said, ‘‘Doug,
lets go back to our side of the table(;)’’ and, that Ford had
touched Smith’s arm, getting Smith’s attention, though Smith
didn’t know (essentially) about being pulled by Ford. I credit
Ford that on seeing Leavitt rise and point a finger in Smith’s
face, Ford had got out of his seat, went to Smith, and urged
Smith to return to the Union’s side, which Smith did.
c. The altercation
General Counsel established: Leavitt is 6 feet 1 inch tall,
and weighs 260 pounds; was recruited for college football
and there had played defensive tackle; and, that Leavitt has
kept up his conditioning by lifting weights and walking. The
parties stipulated, Smith is 5 feet 11 inches tall and weighs
205 pounds; and, I find, sturdy.
When urged by Ford and others, Smith turned around and
came back to the coffee table. Smith recalls he was then
standing off the Union’s negotiating table, in front of, and
with his back to the corridor door exit probably 5 feet away.
Ford relates convincingly Ford had walked to the front of the
Union’s negotiating table; confirmed Smith had walked back
over to the front of the room, near the coffee urn, and, that
Smith was standing 4 feet to 5 feet from the hall door
(below).
After spending 3 to 5 minutes outside on the porch cool-
ing off, Leavitt came back in the room. Negotiations were
over as far as Leavitt was concerned. On return Leavitt
picked up his note book (a red binder notebook about 5-feet
wide) that was on the table and put it carefully under his
right arm. It contained the original union and company con-
tract proposals; and, all counterproposals that have been put
in front of the Company. It was then between 2 and 2:30
p.m. There was not a whole lot going on in the room.
Though there was some discussion on management side;
tfiere was not between the two sides. Leavitt relates he
walked through the opening between the company tables
where Smith had pulled one out; and, he headed to the door
to get out of there.
Smith was then on the Union’s side of the room, but not
behind or in front of his table, but to the riqht of the Union’s
table, off its leading edge, and about 5 feet from the door.
There was 5 feet from the end of that table to the door. The
coffee table being placed midway, its nearest edge was also
5 feet from the door. (Ford confirmed Smith at this time was
standing in between the coffee table and the union negotiat-
ing table, about 4 feet to 5 feet from the door.) It is even
more notable that Ford has recalled explicitly, and without
apparent contest, that Smith had not moved when Ford saw
Leavitt approach Smith.
Leavitt related it was when he got in range of the door
that he saw Smith was there. On cross-examination, Leavitt
related (consistently) the first time he realized where Smith
was standing was when he walked up to Smith. Somewhat
inconsistently though, Leavitt then related he was not exactly
sure if he was looking straight ahead, or, watching the
ground at the time he walked straight at the door (as would
appear to have been more likely if he had come upon Smith
unexpectedly as Leavitt described). In any event, Leavitt re-
counts that when there, he looked at Smith straight in the
eye, and said, Doug, get out of my way. Leavitt has Smith
reply, you’ll have to go over me. Leavitt repeated, get out
of my way. Leavitt has Smith this time say, you’ll have to
either go over me or around me. Leavitt was directly in front
of Smith at this time.
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Smith’s account is that Leavitt came or charged back in
the room, grabbed his (Leavitt’s) paper work as he came by
his table, and came directly to Smith, where Leavitt bumped
chests with Smith. Norris recalled that on entering the room
with Attorney Smith, Leavitt grabbed his stuff, and walked
straight to Smith, and got in his face; and, Norris confirmed
they stopped one another, they butted chests. It is notable in
any event that Smith testified, Norris and others corrobo-
rated, and Leavitt confirmed, that Leavitt (initially) told
Smith to get out of his way.
However, contrary to Leavitt version of Smith’s response
to Leavitt as being to go over him, Smith had testified that
Smith had replied, ‘‘You’ll have to go around me(;)’’ and,
when Leavitt again told Smith, ‘‘Get out of my way(,)’’
Smith again said (and again essentially corroborated by Nor-
ris), ‘‘Chip, you’ve got to go around me.’’ Or, ‘‘No, Chip,
you go around me.’’ (Norris recalled Smith said, ‘‘You’re
going to have to go around me.’’) Even more significantly,
Smith has centrally testified, there was room at the time for
Leavitt to go around Smith, indeed, Smith asserts either way
(below).
Hatcher’s recollection is that when Leavitt came back into
the room, he picked up his papers, and walked around Attor-
ney Smith and foreman Coleman, and came in a fast pace
straight over to Smith. Hatcher recounted, Leavitt then
bowed his chest out and arms back, and demanded that
Smith get out of his way. Hatcher recalled (with some notice-
able embellishment) Smith said, ‘‘I’m not going to get out
of your way. There’s plenty of room, if you want to go
around me you can go around me. but I’m not getting out
of your way or nobody else’s.’’ Hatcher relates they were
chest-to-chest, or eye to eye. (Bullard, who thought the argu-
ment was over, and, in preparing to leave had bent over to
get his own notes and papers, looked up and was suprised
to see Leavitt had reentered the room and was standing
chest-to-chest with Smith. Though acknowledging he
couldn’t recall exact words, Bullard’s recollection essentially
corroborated, Smith advised Leavitt if Leavitt were leaving,
he would have to step around.)
Batts, at the balcony door, confirmed Leavitt went through
the tables and around. Howeyer, Batts asserts he really didn’t
see Leavitt when he got to the door, as there were people
standing around. Johnson, at one point also in the doorway,
recalled Leavitt told Smith, ‘‘Doug, move out of my way(;)’’
and, then (disjointedly, and unconvincingly), that when
Leavitt asked Smith again, Smith told Leavitt, either wise
(sic) go around him, or go over him or go through him, one
of the two.
Coleman stayed in the room. Coleman was standing 5 to
6 feet back in the room, toward but (as Leavitt confirmed
about 3 or 4 feet) away from the coffee table. Coleman re-
calls that Leavitt, after picking up his notebook from the
table, then walked around Coleman. Coleman acknowledged
when Leavitt came in the room and picked up his notebook,
Leavitt was probably moving faster than he normally walks,
not aggressively, but hurriedly like. Coleman confirmed
Leavitt walked directly towards Smith, like he was going out
the front door; and, they got to within 6 inches of each other.
(Though saying on one occasion it was 6 inches to 1 inch,
on later occasion Coleman agreed it was 6 inches between
them.) In any event, and any indication in Coleman testi-
mony to the contrary notwithstanding, clear weight of more
credible evidence is Leavitt had walked right up close to, and
directly in front of Smith, who had not changed his position
at all to meet Leavitt.
Nonetheless, Coleman has asserted that he saw it all and
in his opinion he really thought Smith was the aggressor. On
cross-examination, Coleman then acknowledged: both were
angry; Smith wasn’t any more angry than Leavitt; and, Cole-
man didn’t really think either one of them liked each other
too much. It is even more notable then that Coleman not
only confirmed Leavitt had walked up to Smith and said,
‘‘Doug, get out of my way(,)’’ but that Smith had then (only)
said, ‘‘I’m not going to move. You’ll have to go around.’’
Indeed, when Leavitt (again) said ‘‘Doug get out of my
way(,)’’ Coleman recalled Smith (again) said, ‘‘No, I’m not
going to move.’’ (Coleman account thus notably does not
support Leavitt at all in Smith ever saying Leavitt would
have to go over Smith; and, only then the more notable are
the additional circumstances that neither Batts’ or Johnson’s
accounts are really persuasive on that very point.
Though Coleman has asserted he thought Smith was the
aggressor, Coleman on other occasions simply has had dif-
ficulty in describing Leavitt’s approach to Smith as being in
a nonagressive way. Though Coleman initially asserted when
Leavitt came up to Smith it was not closer than you would
normally stand to someone in normal conversation, Coleman
later acknowledged it was the kind of distance (6 inches) that
if someone had just walked up to him that close, knowing
that they had just had words, that he would probably feel
uncomfortable.
To be sure, Coleman immediately attempted to salvage
that (more candid) revealment in then reasserting he did not
actually feel like Leavitt was aggressive toward Smith at that
time, but I was and am not persuaded by the effort beyond
the consideration of its compatibility with the possibility of
an unplanned Leavitt confrontational approach of Smith, e.g.,
with eyes on floor, coming around Attorney Smith and Cole-
man, and, unthinkingly, but then rapidly and directly upon
Smith.
But Coleman then further acknowledged that it was that
close (6 inches), when Leavitt had told Smith, exactly, in a
harsh voice, ‘‘Doug, get out of my way.’’ Coleman re-
counted, at this point, that it was in pretty much the same
tone of voice, Smith had said, ‘‘I am not going to move.
You’ll have to go around me.’’ Coleman relates Leavitt then
said, ‘‘Doug, move out of my way.’’ Smith again told Leavitt
that Smith was not going to move, and that Leavitt would
have to go around him. Although Coleman related Leavitt
didn’t yell or raise his voice real loud, but said it firmly,
Coleman also acknowledged you could tell Leavitt meant for
Smith to move.
Finally, even when General Counsel then brought to Cole-
man’s attention that in his prior affidavit (given on May 23)
Coleman said (when Leavitt asked Smith to move) Smith had
said to Leavitt, ‘‘He would have to go over him,’’ (emphasis
added) at hearing Coleman nonetheless testified (and, with
the weight of the more credible evidence of record then in
support of him by far), the best he can remember, that Smith
did tell Leavitt that Leavitt would have to go around him,
that he was not going to move. (Coleman acknowledged he
had talked about the incident with Leavitt and other company
witnesses before he gave the above affidavit.)
411BRUNSWICK ELECTRIC CORP.
On the weight of what appears to me to be the more con-
sistent and credible evidence I thus find that on entry into
the room and retrieval of his notebook, and whatever may
have been his initial lack of intent for further confrontation
with Smith, in fact, Leavitt had walked directly up in front
of Smith, and spoke to Smith in a manner only then likely
to renew a confrontation. Thus, even were I to assume
Leavitt had initially approached Smith unthinkingly because
he had actually walked hurriedly towards the door with eyes
riveted to the floor, and in coming around Attorney Smith
and Coleman, had come rapidly and unexpectedly upon
Smith, it is uncontested that on then seeing Smith in front
of him, Leavitt had walked up very close to Smith (if not
making actual contact with him) initially; and, in discomfort-
ing close proximity to Smith, then had as effectively renewed
their confrontation as if intended, in telling Smith, in a firm
if not harsh voice, to get out of his way. In those cir-
cumstances, and especially if with adequate room to do so,
I find Smith acted understandably, if not magnanimously, in
telling Leavitt in like voice in turn that Leavitt would have
to go around Smith; that Smith did not tell Leavitt on that
occasion to go over Smith; and, when Leavitt told Smith a
second time to get, or move out of his way, that Smith re-
affirmed a second time that Smith would not move in saying,
‘‘Chip, You’ve got to go around me(:)’’ and again, that
Smith did not tell Leavitt to go over him.
On the material question of whether there was sufficient
space for Leavitt to go around Smith, such that Smith was
not blocking Leavitt, contrary to Smith assertion that there
was, Leavitt has testified that with Smith where he was, and
the (Ford) chair where it was, Leavitt could not get around
Smith, either on his left or his right. Leavitt asserts there was
no way on the side closest to the coffee table and on the
other side, a chair was in the way.
In direct conflict, Smith related there was another way
Leavitt could walk to go to the door. Indeed, Smith claims
Leavitt could (have) walk(ed) either way around Smith, as
there was room on both sides to go around Smith. In support
(though not without some seeming inconsistency) Smith re-
lated he did not recall any chairs being around the table then.
(On one occasion Smith related that there were chairs behind
Smith’s table. On other occasion Smith denied there were
chairs in the area where a couple of union negotiators had
been sitting, Smith then asserting he believed the boys had
already started putting up the chairs.)
Norris, in corroborating Smith that there was room for
Leavitt to walk around Smith (at least his left side) to the
door, recalled there was no chair there; and if the chairs were
any where, they were against the wall. Norris otherwise esti-
mated there was 2 feet or more between the (Union) table
and where Norris recalls Smith was then standing. On that
basis, Norris has corroborated Smith that Leavitt did have
room to walk around Smith, though then adding (and, intro-
ducing some confusion) because the table was behind him.
Coleman related, if I’m not mistaken and to the best of my
recollection, Dean Long was on Smith’s right side and there
was a chair or something right there on Smith’s left side. On
that basis, Coleman asserts that Leavitt could not have gotten
by Smith without moving something (sic). There appears to
be no corroborative evidence that Long was standing to one
(i.e., Smith’s right) side. Indeed the only other evidence of
record is that Long as an observer initially was seated behind
Smith; and, such Long movement is otherwise, if anything,
contraindicated by Hatcher general recount that as Hatcher
made his way around the union table (below) to get to the
(then) embroiled Leavitt and Smith, Hatcher did so through
two to three individuals still seated at Union’s table.
Though I observe Long did not subsequently testify to the
contrary, there is also clearly no evidence Leavitt had told
(or asked) Long, or any person other than Smith to get, or
move out of his way. On weight of what appears to me to
be the more consistent and credible evidence, I find there
was more likely than not no other person in the passageway
blocking Leavitt’s path to the exit door. But even were it to
be found otherwise, it would then be made only the more ap-
parent that Leavitt wasn’t interested in asking, or telling that
person to move to avoid physical contact with Smith. How-
ever, as noted, I am more persuaded there was in fact more
room for Leavitt to pass to Smith’s left, because of the likely
proximity of the coffee table on Smith’s right. In any event,
Leavitt unquestionably went in that direction to pass Smith,
albeit at Smith.
(1) The question of a clear passage to Smith’s left; and,
the nature of the related physical contact
The conflicting evidence over location and limiting effect
of Ford’s chair is somewhat difficult of resolution. Ford
didn’t believe his chair continued to stay in the location
where Ford was sitting. Ford believed when he got up to
walk over to where Smith and Leavitt were, Ford had turned
his chair. Ford remembered he was going to put it under-
neath (the table) and couldn’t. Ford also remembered (though
thereby generating some lack of clarity), the legs were on the
end, and the back was turned to the wall. Leavitt wasn’t sure
what direction the chair was. Leavitt reaffirmed only that
there was a chair there, to his right. I am persuaded and I
find that the feet of the chair were at the end of the table,
but most most probably with the front feet of the chair up
against table brace or pedestal, and chair seat only partially
under the table, with chair back most likely turned (in) and
parallel to the coffee table wall. I would only otherwise note
that if the chair were turned when Ford rapidly arose to go
to Smith, and in such manner as to effect the chair back
being parallel to the door entry wall, the chair was then even
more out of the way and less of an obstruction.
Smith’s account is in any event that Leavitt leaned on
Smith with his weight; and, Leavitt pulled Smith around with
the weight of Leavitt’s body. Smith relaxed, and went with
Leavitt, or let Leavitt pull him around. Smith has testified
that Leavitt then shoved Smith, still coming at him; and, at
that point Smith grabbed Leavitt to keep from falling. Smith
explained that once Leavitt had pushed Smith with his hands,
Smith was falling back; and, Smith got a hand on Leavitt’s
lapel, and one on his shirt or coat sleeve. (Leavitt has re-
called Smith had his two hands on Leavitt’s lapels. Leavitt
confirmed that Leavitt had a hand on Smith’s collar.)
Smith credibly recounts that Leavitt, with one hand on
Smith’s collar, and the other on Smith’s chest, then pushed
Smith back across the room. Leavitt’s related account is they
spun each other or danced across the room to some degree.
Smith states Smith’s feet may have shifted to accomodate
him going around, but they were not waltzing; and, Smith
was not repositioning himself for anything. Though Smith
acknowledges that he was pushing back, it is clear that at
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this point Leavitt had overpowered Smith, and pushed Smith
back across to Leavitt’s side of the room.
Leavitt however has denied that he at any time had shoved
the palms of his hands into Smith’s lower rib cage. Johnson,
who as noted below related people were standing between
him and Leavitt, adds little in relating he did not see Leavitt
make a motion to Smith with palms pushing into Smith’s
ribs. Coleman (then seemingly from behind Smith) recounts
their hands went up at each other.
Leavitt has also denied he had treated Smith as an oppos-
ing tackle, but Leavitt acknowledged it was not a real calm
situation. Leavitt’s version is that after Leavitt had asked
Smith to move twice and Smith responded as he did, Leavitt,
having the notebook in his right hand, took his left hand, and
had reached across for the (Ford) chair with his left arm,
bending down to move the chair, and, in doing so, taking his
eyes off Smith. In thus attempting to get around Smith,
Leavitt asserts he moved the chair and had stepped to that
side. According to Leavitt, at that time Smith made physical
contact with Leavitt. Smith rammed Leavitt with Smith’s
chest, and grabbed Leavitt. Leavitt further asserts when
Smith did so, Leavitt’s notebook was knocked to the floor,
or he was relieved or dropped it, or whatever; and Leavitt
had then turned and went to a defensive position.
Batts affords little or no support on the latter for Leavitt.
Batts relates he really didn’t see Leavitt when he got to the
door, as there were people standing around. Company wit-
ness Johnson offers little more. Johnson couldn’t answer if
at that point there was room for Leavitt to get around Smith,
confirming there were people standing up. Nonetheless,
Johnson has (albeit disjointedly) asserted that the last thing
that he saw was Leavitt made a motion to move a chair to
go around, or something, and the next thing Johnson knew—
well, everybody was standing up here—and the next thing
both of them had a hold of one another.
It is first and perhaps most notably observed, that not only
does Batts relate blocked vision and offer no corroboration
at all, but even Supervisor Johnson does not corroborate
Leavitt assertion that Smith had rammed Leavitt with
Smith’s chest at the moment he purportedly perceived
Leavitt had acted to move the chair. Even when considered
otherwise, Johnson’s account is simply not convincing, if not
shown inconsistent with earlier acknowledged people stand-
ing around that had blocked Batts’ view. Leavitt’s support
comes down to Coleman, who was closer. At time of such
movement Coleman was to the back of Leavitt. Yet Coleman
has only tentatively asserted it looked to him as if Leavitt
had reached down to move the chair that was beside Smith,
and like Smith had pushed up against Leavitt.
Smith has categorically denied that Leavitt made an at-
tempt to go around Smith. Norris corroborated there was no
motion to go around, testifying it was more a motion to go
through. Hatcher, who was seated at the further table, re-
called he had leaned foreward on his table, watching them.
Hatcher recounts consistently, he saw Leavitt circle counter-
clockwise around Smith; and Smith followed around Leavitt.
Somewhat in between Smith and Leavitt accounts (but clear-
ly more consistent with recollections of Smith and Hatcher
(above) and Ford (below)), Bullard recalled as Leavitt was
stepping around Smith they were still chest-to-chest.
Thus, all accounts of General Counsel’s witnesses are
wholly inconsistent with a Leavitt assertion of reaching
across his body with his left hand to move a blocking chair
and being then rammed by Smith’s chest. Leavitt only denied
Smith and he did any kind of a chest-to-chest movement
where they went around sideways with each other without
contact, which in literal sense doesn’t meet, let alone ade-
quately address the General Counsel’s witnesses’ essentially
mutually consistent accounts that Leavitt (even) if stepping
to Smith’s left side, had no less made the physical contact,
and turned Smith forcibly with Leavitt’s chest.
In contrast, Smith has explicitly and severally denied: that
Leavitt had reached down with his left hand to move a chair,
to get it out of the way; that Leavitt had moved to the right
to get around Smith; that Smith had then bumped Leavitt;
and that Smith had (first) grabbed Leavitt by the lapels and
Leavitt’s notebook flew out and hit the floor. Smith has re-
called the notebook flew off somewhere after Leavitt as-
saulted Smith with two hands, and it came out from under
his arm. Smith’s account is essentially internally consistent,
but not persuasive on when the notebook most likely came
out, for I am persuaded the notebook came out as Leavitt
was turning Smith forcibly with Leavitt’s chest, as others
have described.
In contrast with Coleman’s view from behind, several wit-
nesses of the General Counsel had an even better side view
of the start of this incident. Ford, standing in front of the
Union’s table recounts, Leavitt had walked directly up to
Smith, face-to-face, up close, and when right up in Smith’s
face, Leavitt told Smith to get out of his ‘‘damn way.’’ No
other witness has recalled this profanity. Though I found
Ford generally to be a reliable witness (despite a disjointed
start in his testimony) in this (and prior) instance I am reluc-
tant to fully credit Ford’s account of a Leavitt profanity
where not confirmed by others, since Ford also clearly
viewed Leavitt had renewed this confrontation. (When asked
directly, Ford testified relatedly that he wouldn’t know the
reason for Leavitt to be chest-to-chest with Smith other than
just to continue from where they had left off previously.)
However, Ford (with others) has corroborated Smith re-
plied, you’ll have to go around me. Moreover, once again re-
vealingly, and in what I conclude and find in the end most
closely approximated what probably occurred, Ford recounts
Leavitt had then walked like his chest up to Smith; Leavitt
turned Smith with his chest; when Leavitt turned Smith,
Leavitt’s materials fell to the floor; and, Leavitt then stepped
back, and shoved Smith with the balls of his hands. Apart
from the questioned profanity, Ford’s account had the ring
of truth to it; and, it draws very substantial support from the
accounts of others.
Norris was seated midway at, I find, the 6-foot union table
located further from the corridor door. Bullard was at the far
end of that union table. In confirming Smith (and Ford), Nor-
ris recalled that when Leavitt was turning around, his back
was to the (exit) door, but Leavitt then had made no motion
(continued movement) to the door; and, Leavitt was not
walking out the door. Norris (as Ford) recalled seeing Leavitt
(first) drop his papers, and then come up pushing Smith.
Bullard confirmed Leavitt got almost out the door when he
shoved Smith; and, as Smith was falling, Bullard saw that
Smith had grabbed Leavitt’s tie, to keep from falling. Bullard
otherwise summarized the two had then basically locked up,
and it turned into a wrestling match.
413BRUNSWICK ELECTRIC CORP.
Hatcher (in this part inconsistently) recalled Leavitt took
one step back, and dropped his book. However, Hatcher oth-
erwise consistently recounts he then saw Leavitt’s hands
from his gide came back at Smith with a 6- to 8-foot or
maybe 8- to 10-foot thrusting move with heels of his hands
into Smith’s lower rib cage. (Norris confirmed when they
had turned around and Leavitt had his back to the door,
Leavitt took his hands from in front of his chest and had
pushed out about six inches, pushing Smith.) Hatcher recalls
Smith then grabbed Leavitt by the tie and/or the upper shirt;
Leavitt grabbed Smith; and Smith grabbed Leavitt’s wrist.
Hatcher recounts, hanging on to each other, but with Leavitt
pushing Smith in a forceful move, and Smith, without
choice, following around in a counterclockwise circle, they
went all the way around maybe three times in a semicircle,
winding up over in the corner, traveling some 10 to 15 feet.
(2) The question of one fray or two; and, of an
additional physical blow
Leavitt asserts when he and Smith were at the other side
of the room, Attorney Smith and Coleman came in and broke
them up. Leavitt relates Attorney Smith had grabbed Leavitt;
and Reno Coleman grabbed Smith. Leavitt’s version is that
at that point Leavitt had stepped back; put his hands in the
air; and walked back to the corner directly opposite the hall
door entrance. Leavitt asserts, that at that time Smith was
standing in a position about 6 to 7 feet away from Leavitt.
Leavitt recounts he and Smith then had another exchange.
Though Leavitt did not recall exact words, Leavitt recalled
he responded Smith hadn’t tried to negotiate since day one.
They said a few (more) things to each other. Then, Leavitt
said why don’t you grow up; and, Smith replied, why don’t
you grow up.
Coleman confirmed he got right in between them, and that
somebody else, whom Coleman believed to be Attorney
Smith, helped Coleman separate them. Coleman states
Leavitt backed up, with both Leavitt and Smith still talking
to one another. Coleman recalled Leavitt was backing up to
the corner opposite the exit door (but Coleman does not con-
firm a 6- to 7-foot distance between them). Coleman relates
to the best of his recollection, Leavitt had then told Smith,
we can not get nothing done with you acting like this and
all; and, Smith replied, ‘‘You’re standing in the way. You
don’t want to negotiate or anything.’’ Coleman confirmed
Leavitt told Smith he needed to grow up; and, if not mis-
taken, Smith told Leavitt the same thing, ‘‘You need to grow
up too.’’
Leavitt’s version is Smith then became frustrated, and
Leavitt asserts Smith came at Leavitt again. Leavitt took a
defensive posture, put his hand up, and when Smith came at
him, Leavitt relates Smith ran into Leavitt’s hand; and, Smith
again grabbed onto Leavitt. Leavitt asserts that he was going
to take the same defensive position he had taken before, and
catch Smith around the collar. According to Leavitt, Smith
came running straight on; and Smith ran into it (Leavitt’s
hand), and Leavitt knocked Smith’s sunglasses off Smith’s
face. Leavitt confirms he had Smith by the back of the neck
at that time; and, Smith had Leavitt by both lapels. A num-
ber of people got into the situation. Leavitt recalls Hatcher
got in between them; and, they parted. Leavitt picked up, or
was given his book; headed for and walked out the door.
Coleman’s account supports Leavitt to the extent he relates
Smith charged Leavitt; that Leavitt held his hands up, and it
(sic, a hand) knocked Smith’s glasses off, as he (Leavitt) was
trying to block him (Smith) off of him. Coleman jumped
right back into the middle of them and tried to stop it, grab-
bing a hand of each of them (on his side) and trying to pull
them apart. About that time, some of the rest come over
there and helped part them.
Again Batts and Johnson offer little help to Leavitt. Batts
recalled they were back against the far wall in the room; but
Batts didn’t know how they started up again. Batts didn’t
hear anything that was said prior to it starting back again;
and, Batts couldn’t even say for sure who moved toward
whom, or who had actually started it the last time they went
together. Johnson’s account is even more general, that they
were broken up; they had some words; and somehow or an-
other they started again. Batts’ and Johnson’s accounts of a
renewed fray are singularly unpersuasive in absence of de-
tails of their (generalized) last time they went together, or,
started again; especially if 6 to 7 feet then separated the two
protagonists, and Smith had (purportedly) charged Leavitt
from that distance.
As noted, Leavitt recalled (and I find) they (initially) did
end up with Smith facing the (Union) door side, and Leavitt
facing the Company’s side. However, I credit Smith’s recol-
lection that when there, they further navigated to where
Leavitt’s back was to his side of the room, and Smith’s back
was to his side of the room. Thus, I find they had reversed
their positions when Coleman (and Attorney Smith) first
made contact with them, from behind.
Because Coleman was speaking to Smith, Smith convinc-
ingly related that he believed then and believes now that
Coleman was the first person to put his hands on Smith; and,
that it was later that Attorney Smith grabbed Smith from be-
hind, in what Smith viewed as an assault also. Smith recalled
at the time Coleman did so, Smith’s back was to the door
leading to the hallway (corridor); and, Coleman got Smith
from behind. No one then had control of Leavitt, though
Smith could see people rushing up, and there were hands, as
by this time other people were trying to get involved.
Smith recounts Line Foreman Coleman came up and
grabbed Smith from behind, twisting Smith. Smith’s testi-
mony is that as Coleman did, Smith’s hand came off
(Leavitt). According to Smith, it was then that Leavitt
punched Smith in Smith’s lower rib area, or cage, with
Smith sustaining a bruise there, as diagnosed by the hospital
that Smith went to later that day. However, Smith recounts
they were still very close, about 18 to 20 inches; and Smith
still had Leavitt with one hand. Smith acknowledges be then
went back on Leavitt; and, that’s when everybody really got
into it; and, they were on Leavitt (too).
Leavitt has denied that he at anytime struck Smith with his
hand or his fist. Johnson didn’t see anyone strike or hit an-
other. Nor did Batts. Coleman is notably silent on that mat-
ter.
In contrast, Ford had corroborated Smith that Leavitt
struck Smith. Thus, Ford recalled that Leavitt had first put
Smith up against the wall; and, then Smith had turned and
put Leavitt up against the wall. As Ford was going to where
they were, Ford saw Foreman Coleman grab Smith’s arm;
and as Ford came around the right side (of them), Ford saw
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Leavitt strike Smith in Smith’s right side, with Leavitt’s left
hand.
Smith denies that after Leavitt and he got apart that Smith
came back at Leavitt. Smith asserts that once he completely
broke contact, he backed away and off to the wall with his
back to Attorney Smith. Smith didn’t recall it at all as a re-
newed fray, i.e., in which Smith came right back in Leavitt’s
face; or of Leavitt then throwing his hands up to stop Smith;
and, Leavitt knocking Smith’s glasses off when Leavitt threw
his hands up. Smith and other witnesses of the General
Counsel uniformly didn’t recall two confrontations and have
testified there was only one. Ford and Norris have (explic-
itly) corroborated. Ford recalled they had ended up in the far
corner of the room in one continuous event; and Norris has
explicitly corroborated Leavitt and Smith did not go back to-
gether; and, he saw them together just the one time.
Smith specifically did not recall the two grabbing each
other again, and spinning around to Attorney Smith, at which
time Attorney Smith assaulted him; grabbed his arm; and
said, ‘‘Doug, let him go.’’ However, Smith did recall telling
Attorney Smith while embroiled with Leavitt (after Coleman
grasp of Smith from behind, punch by Leavitt, and Smith’s
renewed grasp of Leavitt with two hands), ‘‘Britt, God
dammit, get your hands off me.’’ Norris believed that when
Attorney Smith grabbed Smith, Smith had said ‘‘you don’t
touch me.’’ Bullard recalled Smith told Attorney Smith to
get his hands off Smith, but not the profanity ‘‘g— d—.’’
Even Johnson initially thought when Attorney Smith was
trying to get between them, that Smith told Attorney Smith
(only) not to touch Smith, or, not to put his hands on Smith.
However, General Counsel established on cross-examination,
Johnson had given an affidavit to an agent of the National
Labor Relations Board on May 23. Page 1 line 11, provides:
‘‘During the meeting an altercation occurred between Chip
Leavitt, a management employee, and Doug Smith, an em-
ployee. Company Attorney Britt Smith was one of the people
present who tried to pull Doug Smith away from Chip
Leavitt. ‘‘I heard Doug Smith tell Britt Smith, ‘get your god
damn hands off of me.’ Rick [sic] said ‘okay’ and let go of
Doug Smith.’’
Ford’s account essentially confirmed Smith’s more candid
acknowledgement (and Johnson at least affidavit confirming
account), that when Attorney Smith grabbed Smith, Smith
told Attorney Smith to get his ‘‘god damn’’ hands off of
Smith. As in the past, I have found Ford to be a generally
reliable witness; and I find him so here. Ford recounts Attor-
ney Smith promptly did release Smith; and Attorney Smith
then pointed to Hatcher to tell him to come over there. Ford
confirmed Hatcher was already on his way there and then
stepped in between them.
In contrast with his above asserted view of it being pre-
viously only an exchange of opinion, Hatcher recounts when
he was looking down the table and he saw Leavitt step back
and give Smith a shove, then, Hatcher said he had better get
up and do gomething, as it was his responsibility as business
manager to represent the employees regardless of what the
situation is in a confrontation like that. Hatcher got up weav-
ing through chairs with two to three people still seated at the
table. Hatcher recalled as he got around the table there were
(already) three to four people over in the corner trying to
separate Smith and Leavitt, both of whom had just flipped
others off. As Hatcher got to the end of the table, they were
then 3 to 4 feet away from the corner with Smith (again)
having his back to the wall, and with Attorney Smith mo-
tioning for Hatcher to come get him.
Thus, Hatcher relates credibly Attorney Smith was yelling
at Hatcher, Russ, come and get them apart. Hatcher ap-
proached and got his (Hatcher’s) arm, and then his shoulder
between them. Hatcher relates they offered no resistance as
he did, and he next moved between them. Hatcher kind of
shoved Smith back a little bit, and backed up on Leavitt.
Again there was no resistance at all. When Hatcher had them
separated 3’, Hatcher turned around, grabbed Leavitt by the
waist, and said, ‘‘Come on, let’s go outside into the hall.’’
Leavitt told Hatcher it was Smith’s fault; that Smith was al-
ways creating a lot of problems. Hatcher said, ‘‘Okay, come
on, let’s go out in the hall.’’
Hatcher recounts that they went on down the hall a couple
of feet, so Leavitt and Smith could not see each other. Attor-
ney Smith came out with Ford. Hatcher recalled that Leavitt
then said, ‘‘It’s all your fault,’’ referring to Hatcher, saying,
because you can’t control your negotiating committtee any
better than that. Hatcher let it pass. Hatcher has acknowl-
edged he never made any comment with regard to the con-
duct of any of the Employer’s representatives during the ne-
gotiations; nor did he ever make a request of Attorney Smith
as spokesman for the Company to control its members.
Leavitt acknowledged he did not personally ask Ruff and
Hatcher to remove Smith from the committee.
When Leavitt left the meeting room on May 9 and walked
out the door, Leavitt acknowledged he was frustrated, upset,
and angry. Leavitt’s version is that Hatcher was behind him.
Leavitt turned to Hatcher and said, Russell, you haven’t tried
to control this situation; and, again, you haven’t tried to con-
trol it, and it’s your fault this thing came off like that. Then,
Leavitt left. Coleman relates if not mistaken Ruff had Smith
backed over to the center of the room and Leavitt and Cole-
man started out the door, though confirming Hatcher went
out with them. Coleman otherwise recalled Leavitt and Nor-
ris had algo started saying things to each other; and, when
Leavitt was outside the room in the hall, Ruff told them they
needed to quiet Leavitt down.
Smith testified that he did not hit Leavitt, but Leavitt
threw a punch at Smith. Smith went to the Brunswick Coun-
ty Law Enforcement Complex where Smith talked to the
magistrate. Smith had an assault warrant sworn out against
Leavitt. Leavitt has filed no similar criminal complaint
against Smith. Smith relates he did not file an assault charge
against Attorney Smith because Attorney Smith did not hurt
Smith.
Leavitt received a bloody lip, and the next morning he was
a little sore from the pushing and shoving, but he did not go
to a doctor. Leavitt confirms, Smith had filed criminal assault
charges against Leavitt immediately after the incident; and
that Leavitt (then) had a criminal court date coming up.
Leavitt also confirmed that he has not filed assault charges
against Smith, though Leavitt believed Smith was the aggres-
sor. Leavitt offered explanation he didn’t like the idea that
this happened in the first place; and he didn’t think there was
any reason for stretching it out. Leavitt didn’t personally
have anything against Smith. It was ended and that’s where
he stood on it. The fact is however, on the following day,
May 10, Smith was fired; and, Leavitt was not.
415BRUNSWICK ELECTRIC CORP.
Leavitt acknowledges that he first knew that the Company
was going to discharge Smith when they went back to the
office that day, May 9. After Leavitt left the CB facility, he
went by the Oak Island office, dropped Batts off; and then
Leavitt went back to the Shallotte office to meet with Gen-
eral Manager Batten. Leavitt explained the incident to Bat-
ten. Batten evaluated what Leavitt told him; and, Batten also
discussed it with Attorney Smith for his recollection of the
situation. Batten reviewed the policy book, E36, work rule
number 28 (Assaulting or threatening a supervisor or any
other employee); and, reviewed Smith’s entire personnel
record, including a review of the other pending (sic) in-
stances in there; evaluated those together and said the com-
bination of those violations would terminate Smith. Batten
and Leavitt reviewed the issue of Smith. On cross-examina-
tion, Leavitt acknowledged at the time Batten went over the
(Smith) personnel file, Batten was making a decision to fire
Smith.
Batten confirms that he had a conversation with Leavitt as
soon as Leavitt got back from negotiations on May 9. Just
prior to that conversation Batten had received a call from a
local news reporter, who informed Batten that an incident
had happened at the negotiating meeting. Thus, Batten al-
ready knew something about it before Leavitt walked in the
door, but not before. Batten prepared a news release in which
Batten told the reporter Batten could not give her the details;
that he would have to investigate; and, he faxed that release
to her that evening.
When Leavitt came in the Shallote front suite office, Bat-
ten immediately told Leavitt Batten had a call from the re-
porter, and also that Batten wanted Leavitt to give Batten full
details of the entire situation that happened at the union ne-
gotiating meeting from first to last. Batten made notes about
that interview; and, Batten gave them to his secretary to
transfer into writing. In related response to General Counsel
represented nonreceipt of the notes in response to his sub-
poena for any and all documents Batten had utilized in ef-
fecting the suspension and termination of Smith, Batten stat-
ed initially that he thought the notes were supplied; then, that
he didn’t know if that was relevant; later, that he didn’t think
about it; and finally, that he guessed he threw it in the trash
can. None of this do I find very convincing.
Batten otherwise relates after he had studied Leavitt’s full
and detailed explanation. Batten took it as an aggressive ac-
tion upon Smith, meaning the aggressor appeared to be
Smith. In that regard, Batten initially summarized his reasons
were: Smith had come over to Leavitt in front of their table;
Smith had blocked the exit going out; and, Smith grabbed the
collar of Leavitt.
Batten relates he next looked at policy E36; and went
through all 29 to 30 work rules in policy E36. Policy num-
ber, E36-28, clearly said, any threats or assaults by any em-
ployee to a supervisor or any other employee asked for dis-
cipline action. Batten went to Smith’s personnel file. In the
file there was a verbal warning. There was also a written
warning (the issuance of which I have above addressed at
length and found tainted with discrimination), where Smith
had received (disciplinary) action of 4 days without pay; and,
which clearly indicated that any other violation of work rule
policies within a 12-month period of time would create im-
mediate termination.
Batten studied through it very carefully. Batten initially as-
serted he made sure within his own mind and his own heard
[sic] that E36-28 was certainly in violation. Batten later testi-
fied that with those things in mind, in his decision, this was
a clear-cut further violation of threatening and assault to a
supervisor or another employee.
Batten initially testified he didn’t speak to anyone other
than Leavitt and Attorney Smith. Batten later revealed he
talked to Johnson and Batts after; and, then recounted that
was in finalizing—getting the full information from them.
Batten has also asserted that (talking to Johnson and Batts
later) had nothing to do with the decision in the case, then
stating, ‘‘This was policy.’’
Batten made his decision after Batten had investigated the
incident with Leavitt, and received detailed information from
Leavitt; after pulling the policy out, reviewing the policy in
full; and after going to Smith’s personnel file and reviewing
it. Batten also reviewed that information and the action he
was taking with Attorney Smith; but Batten, not Attorney
Smith, made the decision. At the time Batten talked to Attor-
ney Smith, it appeared that termination of Smith was the di-
rection to go. In investigating, Batten never spoke to Smith,
or any other employee in attendance. Batten has also testified
that over the last 4 or 5 years, probably 9 or 10 employees
have been terminated on the basis of BEMC’s Service Rules
and Regulations and Policies.
When asked for his recollection of Leavitt’s details, Batten
relates that Leavitt’s account to him started at the beginning,
and his account essentially tracked Leavitt’s account above.
However, and notably, it covered, inter alia: a Smith remark
about management being sorry; Leavitt recount to Batten that
during the negotiations there were continued Smith outbursts,
to the point that Attorney Smith reemphasized the ‘‘one-
spokesman’’ rule, and confirmed Attorney Smith’s authority
to determine if Smith was breaking the one-spokesman rule.
However, Batten has revealed he really did not understand
the operation of the rule; and, even more significantly, Batten
was unaware the rule had not been agreed to by the Union
(a factor of course Batten could not have then evaluated).
Batten also acknowleged Batten didn’t ask Leavitt what the
Smith outbursts were, nor to what subject(s) they related, but
had simply accepted Leavitt’s report thereon.
Batten recounted, Leavitt report to Batten was Attorney
Smith enforced the rule against Smith, and said, ‘‘We’re out
of here(;)’’ that Smith immediately went around his table and
approached Attorney Smith in front of his table flashing the
proposals in a loud, (as Leavitt said) upset voice to Attorney
Smith; that Smith turned to Leavitt and they had words; that
during that conversation, Smith pulled or jerked the table
back and got very close up to Leavitt’s face; but that Leavitt
said they did not have any kind of confrontation; and, Leavitt
then backed away and went on the porch to cool off and re-
adjust and realign his ownself and thinking. Batten added
Smith’s table pull as an indication of who was the aggressor.
When Batten was relatedly asked if he had received a re-
port that some of the other management officials and/or at-
torney were also involved in Leavitt’s leaving to go to the
porch, Batten at first repeated Leavitt told Batten that he left.
However, Batten then added Batten thought someone had
touched Leavitt on the arm; later recalling it was Attorney
Smith who had said he sort of touched him on the arm; and,
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
finally recalled that Leavitt said somebody reminded him,
don’t go any further.
In recounting Leavitt’s version of the start of the physical
altercation, Batten related reported circumstances of there
being a chair sitting at the end of the union table and a cof-
fee table on the lefthand side making the narrow way very
close; Leavitt reported, ‘‘I told him to move’’ and Smith re-
plied he’d have to go over Smith, and (essentially) repeat of
same; Leavitt movement of the chair with his left hand, and
report Smith had sort of rammed Leavitt with his (Smith’s)
chest, and Smith caught him on the collar or lapel; that fol-
lowing some little scuffle or some little tussling, with the
help of others, it broke up; and, that after Leavitt had backed
away, Smith rushed Leavitt again; and, Leavitt held up his
forehand and Doug ran into it; they had another tussling
match; they were separated again; Leavitt got his book and
left.
The way Smith rushed Leavitt again as it was given to
Batten was, that after the first scuffle and the separation,
Leavitt had backed away back over toward their corner, back
over toward their table, whatever; and Smith came back over
to Leavitt; and, at that time grabbed Leavitt again around the
collar a second time. Batten relates Attorney Smith was in
the Board room; and, Batten came in there and got full infor-
mation from Attorney Smith also. (Attorney Smith did not
testify as to these matters.)
In what must be viewed as following an instance of Batten
being initially evasive on the subject, when pressed, Batten
only then testified that he had never heard a report about
Leavitt putting his finger in Smith’s face; nor any report of
it occurring just before Smith moved the table. And in what
in my view was even more revealing of Batten’s one-sided
approach in investigation of the reported incident, on a direct
inguiry of whether consideration was made of whether
Leavitt was at fault, Batten responded very abruptly and per-
functorily, Leavitt was sent there on Board resolution and
myself as a chief or a key negotiator. He was sent there and
represented this Company. Period. Batten’s denial of record
that he didn’t know that Leavitt did not in fact assault Smith
appears ambiguous.
In rebuttal the General Counsel called Bullard who then
testified, after the incident on May 9th was over, and the
company team had left the room and the union team was still
sitting in the room talking among themselves, Attorney
Smith reentered the room and began gathering some notes
and things he had left behind. Then someone, Bullard didn’t
remember who, said, Britton, Chip really messed up this
time. According to Bullard, Attorney Smith paused for a mo-
ment and then said, I know and I apologize to all concerned.
When then cross-examined and exhibiting some confusion on
the details of those present (but not the remark), Bullard ex-
hibited some antagonism, while denying he was getting
angry; asserting, he just want to make sure Attorney Smith
understood him.
In rebuttal Ford recalled that after the altercation on May
9 was over, Attorney Smith said, I apologize for Chip’s ac-
tions today. On cross-examination Ford confirmed that
Leavitt was not in the room at the time: but did not recall
if there were any other company representatives there. Nei-
ther Smith nor Hatcher testified in rebuttal. (At least Hatcher
had returned to the room.)
Attorney Smith has been labor relations counsel for
BEMC for approximately 18 years. Attorney Smith testified
in rebuttal at the end of the May 9 negotiating session he
did walk out of the room with other company officials, fol-
lowing Leavitt; and that Hatcher and Norris went out with
them. Attorney Smith testified solely on the rebuttal testi-
mony of Bullard and Ford, explicitly that when he returned,
no one in the room said to him, ‘‘Britton, Chip really messed
up this time;’’ nor did Attorney Smith reply, at any time, ‘‘I
know, I apologize to all concerned.’’ Attorney Smith testified
that what he said (seemingly on return) was, ‘‘Gentlemen, I
regret that it has come to this. We can not seem to get any-
where and it is a sad state of affairs.’’
8. The termination of Douglas Smith on May 10
a. The discharge interview; and the reason stated
for discharge
Hayes asserts that he had 35 employees in Whiteville; and
loved everyone of them, including Smith when there. Hayes
worked with them; and he went overboard with them to the
fullest extent that he knew how. Hayes said, but somewhere,
sometime you’ve got to draw a line. Hayes relates that on
May 10, Hayes brought Smith into his office and discharged
him. It is clear however that it was Batten who had solely
directed the discharge of Smith.
Batten testified that he personally put together the dismis-
sal of Smith. Batten informed Leavitt that Batten’s decision
was to terminate Smith; and, Batten had Hayes communicate
that termination to Smith the next morning.
Hayes confirms that between 6 and 7 p.m. the day before
(May 9), Batten had called Hayes (seemingly) at home after
work. Batten informed Hayes of what had happened at the
CB facility. Batten then told Hayes of Batten’s decision on
what was to be done; and Batten asked Hayes if Hayes
would do it the next morning, since Hayes would be there
when Smith came to work; and Hayes told Batten that he
would.
Hayes was there the next morning before Smith. Hayes
asked Herring to come to Hayes’ office with Smith, when
Smith came in, but not before starting time which was 7 a.m.
at that time. At 7 a.m. Herring came over with Smith. Ste-
vens was with Smith at this time, at Smith’s initial request.
They came into Hayes’ office. Hayes taped the discharge
interview. Hayes started to read the statement that Hayes had
prepared about Smith’s termination. As Hayes started to read
it, Smith interrupted Hayes because Smith saw through the
back window of Hayes’ office that another employee, Zeb
Hewitt, a union steward, had driven up on the parking lot.
Smith requested the meeting be held up for Hewitt’s attend-
ance, and Hayes agreed. Smith confirmed that at the time
that he was terminated, Hayes, Herring, and (union steward)
Zeb Hewitt were present, and Stevens then excused. When
Hewitt came in, Hayes took the the discharge notice, and
read it to Smith. Hayes said: ‘‘Okay, Zeb is in here. Doug,
I’m doing my job and I’ve got something here I’ve got to
read to you, so please listen real good.
This is to advise you that you’re terminated imme-
diately based upon prior warnings and violations of pol-
icy number E36, number 28, Assault on a Supervisor.
417BRUNSWICK ELECTRIC CORP.
You’re not to enter on Co-op property at any time or
anyplace.’’
Hayes then asked Smith for his keys. Smith had none to
give. Hewitt then said, ‘‘Wait a minute, what are you firing
him for.’’ Smith initially recounted, ‘‘That’s all right, I know
what for. Ain’t no problem. I was assaulted yesterday. Ev-
erybody seen it.’’
b. The FBI investigation(s)
However, Smith on that occasion also then said to Hayes:
I ain’t had no problems, Ronald, until I told you about
the FBI. They are going to meet with me this morning.
You are right in the middle of it. I know you’re in the
middle of it. All of you is in the middle of it. You think
you can beat on me and you’re messing with the wrong
damn one, son.
Hayes added Smith was very upset, slightly abusive, but
not bad; nothing like he had been. However, Hayes asserts,
the one (thing) that got Hayes is where Smith brought up the
FBI. Hayes didn’t really know what Smith was talking about.
Hayes also remembered Smith said not to worry, that, ‘‘I
will be back.’’ Hayes asserts that statement was one that
Hayes didn’t know how to take. Smith then left.
Smith had acknowledged he had first told Hayes about an
FBI investigation months earlier out in the parking lot. Smith
didn’t recall what Hayes said at the time. Though at hearing
Smith acknowledged he had been in contact with an official
of the FBI; Smith didn’t know if there was an ongoing inves-
tigation; and, he had received no instruction from the FBI re-
garding the contact. With reluctance, Smith related his
knowledge was that a special agent of the FBI out of its Wil-
mington, North Carolina office had contacted another unit
employee, a Shallotte serviceman, but had not contacted
Smith personally, as Smith had no knowledge about any (al-
leged) wrongdoing at the Company. However, Smith did at-
tend a meeting at which other employees were in attendance,
and at which Smith listened to testimony from other people
about certain (alleged) wrongdoings of cooperative officials
that (other) employees thought were going on in the coopera-
tive.
In summary, there was a Smith reference in his discharge
interview to an ongoing FBI investigation; Smith hadn’t per-
sonally said, or reported anything to the FBI, as he didn’t
have any knowlege about any wrongdoing by company offi-
cials but in his discharge interview Smith did say to Hayes,
that when he (earlier) had told Hayes about the FBI inves-
tigation, that’s when things had started (happening).
In that regard, and without his review of the tape made of
his discharge interview, Smith had not recalled the related
transcript references to being in the middle of it; though he
had recalled some substance of it; namely, saying, ‘‘Ronald,
you’re right in the middle of it,’’ and, then looking at Monte
Herring, saying, ‘‘Monte, you’re right in the middle of it
too.’’ Smith acknowledged that he was referring to corrup-
tion; and, that he had no personal knowledge or proof of
Hayes and Herring corruption, but believes there is. The tape
reflects Smith accused Hayes, but (only generally) others of
being in the middle of it.
Smith testified at hearing that he did not believe that his
involvement with the FBI was totally the reason for his dis-
charge, explaining what he meant by saying to Hayes, ‘‘I
ain’t had no problems until I told you about the FBI,’’ was
that he was upset that morning: and at the time felt that since
he had told Hayes about the FBI, and, since he had (later)
received a threatening phone call at home; he kind of felt
like that, as everything was coming at him very quickly; but
he (now) knows better that the reason for him being fired
was not because of the FBI.
Batten testified that in 1988 the FBI had contacted Batten.
They did a background investigation on Batten, and his rep-
utation for truthfulness and honesty. It was a confidential sit-
uation at the time. That case is over with now. At that time
the FBI was doing an investigation in the Shallotte area that
required BEMC action to participate with them. Batten re-
counts, after an FBI agent had identified himself, the agent
told Batten the FBI had already conducted a full background
investigation of Batten, as well as Operations Manager Gore,
personally and professionally. The FBI agent then asked
BEMC to engage in a secret operation which involved
BEMC hanging some equipment for the FBI. Batten recounts
he has had no other contact from the FBI in regard to
BEMC, or his personal situation.
Batten testified REA does a continual (reaching back into
last) audit of the accounting practices of BEMC; and, they
usually come in about every 2 or 2-1/2 years, with REA’s
last audit on November 27, 1989. The audit is also a USDA
obligation. Thus USDA’s field accountant (an auditor) jointly
audits with REA. The audit includes everything: construction
funds; borrowed money; all REA accounting procedures; all
REA procedures reviewing 2-, 5-, 10-, and 20-year work
plans; and, a review of everything of a money nature, e.g.,
billings, accounting procedures, contract agreements, bul-
letins (regulations), etc. Batten testified that to this date, the
REA has never determined BEMC was not in compliance
with loan agreement and REA bulletins.
(1) The threatening call
The threatening call made several months earlier started
‘‘Hey hero’’; and on that account Smith thought it was from
an old Army buddy, as Smith knew (from experience) that
expression is used in the military quite often. When Smith
in turn replied how it was going, the caller then said, ‘‘When
a hero sticks his neck out too God damn far he’ll get it cut
off everytime.’’ The caller then hung up. Smith couldn’t
identify the caller.
c. Other factors offered on Smith-Batten animosity
Smith grievance on Cartrette discriminatory treatment and
Batten limited response has been earlier addressed. Smith has
otherwise acknowledged: that he doesn’t like what Batten
has done to the men; that he has accused Batten of having
a BEMC contractor build a pier on his house, an allegation
which was told to the FBI, but he clarified not by him. Smith
acknowledged he possibly had told (repeated) it to other em-
ployees, without having observed (contrary) check proof,
though having been told that there was such. Smith acknowl-
edged he never asked Batten if it were true; and, Smith stat-
ed he didn’t think he owed Batten that before he went
around and spread the rumor.
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Though Smith was not sure, the tape of the interview in
evidence indicates Hayes said, ‘‘I’ve never tried to beat up
on you;’’ Smith reply, ‘‘No, but you support them;’’ and
Hayes reply in turn, ‘‘I support the Co-op.’’ Though Smith
believed he had said, ‘‘Mr Batten doesn’t have enough nerve
to come down and fire me;’’ the tape reflects he used the
more general term ‘‘they’’ haven’t or don’t ‘‘even got nerve
to come down here.’’ Hayes made no reply. In that regard,
Smith acknowledged he (and I find, then) came over and
picked up the tape recorder; denied that he slammed it down
real hard, or twirled it around and around; but acknowledged
he spoke into it directly. Though when questioned Smith
agreed that he had said (seemingly into the recorder in the
meeting), that Mr Batten was a spineless individual for not
coming down and handling this personally, but Smith would
be back, the tape reflects he at that point said (only) ‘‘All
I want to say is that I will be back.’’ Smith then left. Smith
shortly returned and asked for his money. When Hayes told
Smith and repeated that absent being shown it in writing oth-
erwise, Smith would get his paycheck on his regular payday
on Friday, Smith then left.
Stevens has testified that Smith just didn’t like Batten. Ste-
vens then spoke of an occasion at work in the field that
Smith had told Stevens that Batten was a crook, and, that
Smith can shoot him in the legs and watch Batten squirm
around. Smith placed the remarks as said way after the elec-
tion and while they were talking on the job how the Com-
pany was treating them, unfair pay and everything. Stevens
also testified he just thought Smith was cutting a fool; and,
that Smith was not serious about it. There is no evidence
Batten knew of this comment; nor, that it was considered in
Smith’s discharge.
Hayes has acknowledged that they have slowed down on
right a way work tremendously, because Hayes did not have
anyone that would transfer to Smith’s job for cross-training.
Analysis, Conclusions, and Findings
Batten did not inquire into the nature and subject matter
of the Leavitt reported outbursts of Smith. I find Smith’s var-
ious comments about the subject of wages in the morning
and afternoon negotiation sessions of May 9 were protected,
and not disruptive of the negotiations, though they may have
been perceived to be under Employer’s view and self-im-
posed one-spokesman rule that remained unaccepted by the
Union.
Thus I find Smith was effectively engaged in union and
other protected concerted activity when during the course of
negotiations conducted that day, Smith asserted (or re-
asserted): (1) The lineman wage rate proposed by Employer
was inadequate, as (claimed) apparent when compared with
warehouse coordinator rate; and, including when Smith had
continued that discourse with Attorney Smith after the latter
had said Employer was leaving, when, having asked for and
received union permission, Smith would not stop talking on
wages when Employer requested. (2) Smith asserted general
insufficiency in the Company’s wage offer. (3) Smith stated
(even if erroneously), if the Company would quit spending
money on, or putting money in industrial centers, the Com-
pany could pay the men more money, or, would have more
money to pay the men. (4) Smith told the Company that it
needed to pay these (service) men a fair wage. (5) Smith var-
iously pressed Attorney Smith and management that the men
were worth more money than the Company was then offer-
ing. (6) Smith, in response to employer proposal for red-cir-
cling certain rates, and related discussion with the Union, ad-
vanced a different, if not contrary union position of demand-
ing more money and an across-the-board wage increase.
Smith’s protected status in thus engaging prominently in
Union and other concerted activity was not lost by Smith re-
marks to company representatives in bargaining, that: (1)
Employer was doing the employees of line foremen wrong,
and they knew it. (2) Management was pretty sorry, in that
they wouldn’t even let their negotiators talk. (3) That Leavitt
making remarks (such as that Smith was stupid and/or igno-
rant) was why no one liked Leavitt. (4) On being given per-
mission to speak by the Union, then telling management
firmly, over their objection, they were going to listen to
Smith, and, in thereafter orderly pressing with Attorney
Smith at management’s table that the (line) men are worth
more money as seen from a comparison with the proposed
rate for the warehouse coordinator; and (5) variously, con-
tinuing to press the men needed better pay.
If Leavitt viewed such Smith (general) statements on
wages as unduly disruptive in difficult negotiations, and thus
unproductive interruptions, they are shown herein no less
protected. If Smith antagonized Leavitt with Smith’s pro-
tected statements repeatedly to the effect that the company
wage offer was inadequate, Leavittt antagonized Smith in
turn with statements that Smith was just blowing off a lot
of hot air; and, in asserting that Smith in presentment of his
views on wage rates was ignorant and stupid, and/or just
speaking out of ignorance.
In regard to the first verbal confrontation, if Smith had an-
tagonized Levitt by bringing up, and then pressing with At-
torney Smith, Smith’s view of the inadequacies and defi-
ciencies in Employer’s wage proposal, and, the employees’
need for more money or better pay to live decently, Leavitt
had provocatively earlier interrupted that protected Smith
wage discourse with Attorney Smith by telling Smith, why
don’t you shut up, I’m tired of hearing you; and, by (again)
telling Smith he was speaking out of stupidity. If Smith had
then further antagonized Leavitt by comparing Leavitt’s (per-
ceived) personal economic status with that of a unit em-
ployee, with erroneous allusion to Leavitt’s ownership of
beach property, etc., and, unwarrantedly (without proof),
while simultaneously (at least inferably) accusing Leavitt of
some impropriety, by additionally saying to Leavitt that
something is wrong or crooked here, Smith did so only after
Leavitt had just previously angered Smith by again telling
Smith publicly in negotiations that Smith was speaking out
of stupidity. If Smith then acted physically towards Leavitt
in the sense of pulling a table back and advancing a half step
on Leavitt, Smith did so only after Leavitt had risen telling
Smith (at least) to shut up, and had (as I have found) clearly
engaged in as physical noncontact provocative conduct, in
sticking a finger in Smith’s face and not removing it when
Smith requested it, as well as advancing on Smith in turn
when in response Smith moved the table.
If Smith told Leavitt that Leavitt was not as tough as
Leavitt thought he was, Leavitt had not only not removed his
finger from Smith’s face when and as requested, but Leavitt
had only then the more provocatively stated interimly, I’ll
stick my finger in anybody’s face I want. If Leavitt has as-
419BRUNSWICK ELECTRIC CORP.
serted with some foundation that Smith had disrupted the
meeting with an accusation of corruption, Leavitt had even
more frequently insulted Smith that day; and, Leavitt was at
the time visibly (at least) as angered in discourse as Smith.
Even from Leavitt’s vantage point, this was at best (as
found) a heated verbal confrontation in which both had will-
ingly participated. There is simply no one-sided, unprovoked
Smith provocation evidenced in this first verbal confronta-
tion. Rather, I have found that both had progressively in-
sulted each other, and both are shown as physically at fault.
If the unwanted normality of negotiations occasionally pro-
ducing heated, even excessive remarks is to be set aside, and
initiating blame is to be made paramount consideration, and
must be placed here, then it clearly falls to Leavitt first so,
as he interrupted the Smith–Attorney Smith discourse, rudely
and with insult. But one thing is even more basically appar-
ent to me, both were at least equally at fault.
Moreover, I readily find Leavitt (at least) shared fault in
the later physical altercation. Whatever may have been
Leavitt’s initial nonmotivation in renewing a confrontation
with Smith, it became in effect unquestionably otherwise by
his actions when Leavitt walked up hurriedly and directly in
front of Smith, and then, if not following actual butting of
chests (at least) while then in very close proximity to Smith
provocatively demanded (and repeated) Smith get out (or
move out) of his way. On clear weight of the more credible
evidence, I have relatedly found that Smith (as repeatedly)
told Leavitt to go around Smith; and, Smith did not on either
of two occasions, provocatively invite Leavitt to go over
Smith. I have found Leavitt’s speaking to Smith in that prox-
imity and manner was only likely to renew their prior con-
frontation.
The clear weight of the more mutually consistent and cred-
ible evidence is also that Leavitt initiated the physical con-
tact in attempting to pass Smith. I find that in doing so,
Leavitt more moved directly foreward with his chest to en-
gage Smith and turn Smith physically counterclockwise, in-
tending to thus pass by Smith’s left side. Leavitt’s contrary
assertion of reaching over with his left hand to remove a
blocking chair, stepping to the side, and then being rammed
by Smith, is simply not well supported, certainly not by con-
vincing corroborative evidence; and I do not credit it. While
I do have reservation there was as much room as some of
General Counsel’s witnesses recall, I have no doubt who was
the agressor in making the physical contact.
In that regard, with all the relevant facts now considered,
I have no reservation Leavitt’s approach to passage that day
was not blocked. In that regard, even were I to accept Em-
ployer urging of an allowance of 2 feet for Ford’s chair (and
Bullard) and a dimension of the room at 23-1/2 feet, that
would mean there was still some 5 feet in which Smith
stood, fully supportive of witnesses accounts there was room
for Leavitt passage. In short, I am convinced Leavitt had
more opted for initiating physical chest contact to get by
Smith, in which any other more reasonable request of Smith,
or enlistment of help of others to avoid need for physical
contact, unfortunately played no part in Leavitt’s judgmental
processes that day.
Moreover I am convinced that it was that untoward phys-
ical chest effort of Leavitt that caused Leavitt to drop the
notebook under his arm, which in turn produced Leavitt’s
drop of his notebook and (I find) Leavitt’s improvident shove
of Smith to the side in annoyance at doing so, and prepatory
to intended notebook retrieval. With Smith sent off balance
and grabbing understandably at Leavitt in correcting for im-
balance, the fray was then on.
Leavitt’s assertion that he and Smith later separated by 6
to 7 feet, and that a discourse between them had ensued
about the part each played in negotiations, and that one and
other should grow up, which then caused Smith to reinstitute
a fray a second time, in the face all the more mutually con-
sistent and contrary evidence of the General Counsel’s wit-
nesses that there was but one continuous physical encounter,
as well as with fair import of the view of the weaknesses
evidenced in Respondent’s witnesses in support of contrary
contention, renders the assertion of Leavitt in that respect,
simply unconvincing; and, I do not credit it.
Moreover, the very time passage of the described elements
of this physical encounter support that finding. Thus, the tim-
ing of the continuous movement of Hatcher around the union
table over to the fray ending in the corner, which Hatcher
movement had started with the observed and credited initial
Leavitt shove of Smith, encompassed the protagonists rotat-
ing movements to the other side of the room; the turning of
each against the wall; Coleman posturing and effort to sepa-
rate the two by grabbing Smith’s arm from behind; Attorney
Smith’s unsuccessful similar effort at separating Smith from
Leavitt that was then rebuked by Smith, and ceased by Attor-
ney Smith; that was immediately followed by Attorney
Smith’s urging to Hatcher to separate them; and by Hatcher’s
immediate arrival and his prompt separation of them. When
all these happenings are considered in summary, there was
no time for a separation and break-off of the fray, that was
to be followed by a further discourse between Smith and
Leavitt, and then followed by a Smith renewed fray. To the
contrary I find the event most probably had occurred just as
Smith with very substantial and consistent corroboration has
recounted it, as one fray, not two.
In regard to the alleged Leavitt punch of Smith, Ford had
corroborated Smith that Leavitt punched Smith in Smith’s
lower rib cage on the occasion of Coleman grabbing Smith
from behind and causing one of Smith’s hands to come off
Leavitt. Only then the more remarkably is the fact that Cole-
man’s testimony is so notably silent in support of Leavitt de-
nial of Leavitt punching Smith, where Ford coming around
Coleman and Smith, had witnessed it. In contrast, Smith
went to the hospital on that account; and, on that very same
day he timely caused an assault warrant to be served on
Leavitt.
In that regard, I have earlier considered and rejected the
Employer’s posthearing submission of an entered not guilty
verdict, principally because of likely criminal burden of
proof confusions, but also for other reasons earlier stated.
However, in as much as I need not rest the resolution of the
instant allegation on the further grounds of a Leavitt assault
of Smith, where it is here clear and found that Leavitt initi-
ated the physical contact with Smith; and, it also determined
that Smith did not renew a fray, I accordingly do not reach
the assault and battery issue here.
The claim of Smith is otherwise far more supported on
this record as a whole than is Leavitt’s denial; and, a consid-
eration of the State Benefit Appeals decision, even if Smith
were present, would not mandate a contrary conclusion than
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that formed on the weight of the credited evidence mar-
shalled herein.
Finally, on the general issue of Leavitt’s fault, I would
have been far more impressed with the General Counsel’s
offer of evidence of a purported timely Respondent admis-
sion on Leavitt’s fault in this fray as attributed by Bullard
and Ford to Attorney Smith, had it been made part of Gen-
eral Counsel’s case-in-chief, rather than relegated to rebuttal
evidentiary status; and, especially where, as here, it alone is
deemed necessary to be specially and specifically denied in
rebuttal by Attorney Smith, with testimonial offer of what on
its face appears reasonable offer of other account. However,
again, since I need not rely on that evidence, and as its reso-
lution would not affect my other findings herein, I do not re-
solve that conflict as well.
An employer reliance on Smith’s belief at one time that
his developed difficulties relate to an FBI investigation, is
not persuasive. Even if Smith didn’t just grasp on that at
time of discharge (as appears more likely to me), but hon-
estly then held such views, such does not substantially de-
tract let alone offget the fully supported findings made herein
that have established the discrimination charged. To extent
the Employer would seek to buttress Smith as the aggressor
that day by urged reliance on certain asserted prior conduct
with another admittedly no less aggressive nonunion em-
ployee at lunch time in some prior meeting, the evidence of-
fered on such is both left too questionable and
uncorroborated, and the related arguments are unconvincing.
Moreover even were I to find that on such occasion, Smith
had told that employee that when the contract was signed
they were going to start getting rid of management, and that
employees would be leaving with them, such was readily to
be evaluated by the employee as not reasonably within
Smith’s or the Union’s power; and the employee as quickly
did so in stating he would take his chances. As for an as-
serted physical threat being then made that if the employee
did not stop harassing Smith’s (prounion employee) brothers
that Smith was personally going to come down to that em-
ployee’s area and take care of the situation himself, which
the employee asserted he took as a verbal threat, the problem
is convincing evidence thereof was not presented. This is
only the more so shown to be so where the employee ac-
knowledges inter alia, Smith told the employee he was being
represented by the Union despite his strong nonunion pref-
erence, and the employee acknowleges he was invited to a
picnic to learn more about the Union, but declines because
of asserted (but only self-perceived and otherwise unsup-
ported) dangers on the road to the picnic (and elsewhere).
Though I do not agree with General Counsel’s contention
such a statement if credibly supported was too ambiguous,
I find on the evidence submitted before me, the assertion is
not shown to be sufficiently creditworthy.
There remains only to consider the circumstance it was
Batten who made the decision to discharge Smith, on an ac-
cepted report of Leavitt, with purported confirmation of at-
tending counsel, who did not testify thereon. First, it is fairly
apparent that Batten conducted an investigation that was not
only one sided in that no inquiry was made of Smith, the
union representatives, or other employee witnesses (compos-
ing union negotiating team, or observers) present, but notably
did not even include timely inquiry of all the available man-
agement witnesses before Batten had decided to and took the
action to discharge Smith.
Batten’s own account of Leavitt’s report to him, even set-
ting aside any consideration of the Employer’s vacillating ex-
planation for the nonproduction of notes of Leavitt’s report,
shows Batten was without knowledge of the extent and sub-
ject ramifications of Smith’s protected conduct in the nego-
tiations of May 9, even in the face and imposition of Em-
ployer’s one-spokesman rule. Not only was some of the re-
port, if accurate as to what was reported by Leavitt, now de-
termined erroneous, but inquiry was not made by Batten
whether reported Smith outbursts were actually on protected
subjects, and protected, as I have found they were here. In-
deed, I have found Batten didn’t even know, and thus could
not have fairly evaluated the effect of the circumstances that
Union had not agreed to Employer’s one-spokesman rule on
Smith’s protected conduct.
At best Batten has otherwise advanced four reasons for
concluding Smith was the aggressor. The three initially ad-
vanced were: Smith had come over to Leavitt in front of
their table; Smith had blocked the exit going out; Smith had
grabbed the collar of Leavitt. The fourth added, that Smith
had pulled the table out.
As found above, and considered in the light of the cir-
cumstances in which they individually arose, first, Smith was
lawfully over at management’s table presenting the employ-
ees’ view of the Company’s wage proposal, when Leavitt
had heatedly interrupted Smith, causing Smith to then back
over to continue heated discussion with Leavitt. But Smith
was certainly no more responsible for that heated discussion
with Leavitt, than Leavitt was. Secondly, it is simply not es-
tablished that Smith blocked Leavitt’s exit. Rather, not only
is Leavitt’s account of his reaching over for a chair and
being rammed by Smith itself discredited warrantedly on the
evidence, but clear weight of evidence is that Leavitt had ac-
tually initiated the physical contact and the fray. Thirdly,
whatever grabbing by Smith of Leavitt’s tie, lapel, or collar
that immediately followed by Smith was in nature a preserv-
ative and defensive act.
Of the four advanced reasons for Batten’s conclusion
Smith was aggressor, only the pulling of the table back is
substantiated, but that act notably ended in no physical en-
counter, and it itself followed provocative Leavitt physical
act and statement about Leavitt putting a finger in Smith’s
face that Batten on hearing inquiry proved too oversensitive,
then responding with reason, and one more closer to the
mark, this was policy.
Yet, in final analysis, what in the end on that very same
point proves insurmountable for the Employer’s contention to
prevail that Smith was lawfully fired in accordance with ex-
isting company policy prohibiting assault of a supervisor, and
that its disciplinary action in discharge of Smith did not vio-
late Section 8(a)(3), is, Batten’s implementation of that pol-
icy clearly has treated Smith disparately for his part in a
physical fray initiated by a supervisor, and Smith treated that
way because of Smith’s prominent union activity in these
first time negotiations.
What in the end would seem (at least) as not really argu-
able on the above facts is Leavitt was as much responsible
and a participant in the unfortunate incident of May 9, as
was Smith. Yet Smith alone was fired and Leavitt not, with
distinction being simply made on the basis because Leavitt
421BRUNSWICK ELECTRIC CORP.
was appointed as Employer’s representative in the negotia-
tions, period. And, thus without any apparent consideration
that the same corporate policy by its terms had as clearly ex-
tended to protect employee Smith against assault of others
employed, including by a supervisor.
In my view, the Company’s selective implementation of its
policy in the circumstances of this case, cannot withstand the
policy of the Act against the Employer’s discrimination
against Smith as prior known leading union advocate, and
now known leading employee representative and firm advo-
cate in negotiations for increased wages for employees, cf.,
Troxel Co., 305 NLRB 536 (1991); and on balancing extrem-
ities of provocation, see Brunswick Food & Drug, 284
NLRB 663, 664 (1987).
Accordingly I conclude and find, for all the above reasons,
that by BEMC’s discharge of George Douglas Smith on May
10, 1990, the Respondent Employer has engaged in conduct
in violation of Section 8(a)(3) and (1).
This is not to indicate that either I, or the Board, would
sanction or condone an employee’s physical assault of a su-
pervisor. It is to say that on the particular facts as in detail
have been found above, a nondisparate and nondiscrim-
inatory defense of such has not been adequately proven in
the defense offered, cf., Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (lst Cir. 1981), cert. denied 455
U.S. 989 (1982).
CONCLUSIONS OF LAW
1. Brunswick Electric Membership Corporation is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local Union #495, International Brotherhood of Elec-
trical Workers, AFL–CIO, CLC is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. By Foreman John Reno Coleman’s statements made on
June 26, 1989, that effectively threatened employee George
Douglas Smith with unspecified reprisals for engaging in
union activity, the Respondent Employer has thereby violated
Section 8(a)(1) of the Act.
4. By orally maintaining in material times a rule or prac-
tice that has discriminatorily prohibited only talk about the
Union, and that was unconnected in origin to maintenance of
production and discipline, the Respondent Employer has
thereby violated Section 8(a)(1) of the Act.
5. By Construction Supervisor Monte Herring’s statement
made to an employee during the employee’s evaluation con-
ducted on July 6, 1989, that Employer was aware of the
union activities and aware of the employee’s union activities
in particular, in circumstances where the employee had not
been theretofore openly in favor of the Union, and by Super-
visor Erwin Etheridge’s silence thereon, the Respondent Em-
ployer has thereby created the impression of surveillance of
its employees’ union activities, and thereby violated Section
8(a)(1) of the Act.
6. By the July 11, 1989 letter of Executive Vice President
and General Manager David J. Batten that urged employees
to report not just union threats, but subjectively perceived
union pressures, and, because the request therein to report
‘‘Union pressures’’ was so broad as to reasonably tend to re-
strain an employee proponent of the Union from lawfully at-
tempting to persuade another employee through fear the em-
ployee union proponent’s conduct would be reported to man-
agement, the Respondent Employer has thereby engaged in
conduct in violation of Section 8(a)(1) of the Act.
7. By Line Foreman Bobby Johnson’s reading of an in-
struction to his employees in the first and second week of
September 1989, on how to stop employee union ‘‘harass-
ment,’’ namely, to tell them to leave you alone and that you
will let them know if you have any questions or need any
information, and, if that doesn’t stop it to report it to their
supervisor, Respondent Employer has unlawfully encouraged
its employees to identify other employees who supported the
Union in violation of Section 8(a)(1) of the Act.
8. By the conduct of Whiteville District Manager Ronald
Hayes on February 15 and 21, 1990, in interrogating an em-
ployee about the union activities, sympathies, and interests of
that employee and other employees, Respondent Employer
has thereby violated Section 8(a)(1) of the Act.
9. By Heavy Equipment Line Foreman Floyd Cartrette’s
statements to employee George Douglas Smith on February
28, 1990, that since Smith and the Union have been here,
Smith hadn’t done nothing but cause trouble; and, if Smith
or anybody else thought they could do better, you should
quit and find you another job; and, that Smith and the Union
were trying to take over the Company, but that was not
going to happen, and they were not going to get anything,
Respondent Employer has thereby coerced and harassed
Smith in regard to his union activities, and has told its em-
ployees that continued collective bargaining on the subject of
wages was futile, all in violation of Section 8(a)(1) of the
Act.
10. By the Company’s award of a discriminatorily tainted
supension of George Douglas Smith on March 5, 1990, for
4 days, the Respondent Employer has violated Section
8(a)(3) and (1) of the Act.
11. The following unit is an appropriate unit for collective-
bargaining purposes, namely:
All trade and craft employees including Right of Way
Operators, Groundmen, Apprentice Linemen, first-class
linemen, second-class linemen, Heavy Equipment Oper-
ator, Electronic Technicians, Warehousemen, Assistant
Warehousemen, Servicemen, Lighting Technicians,
Building and Ground Technicians, Load Management
Coordinator, Coordinator of Services, Drafting and
Mapping Coordinator, Staking Engineer, Junior Staking
Engineers/Service Representatives, and Dispatcher at
the Respondent’s Shallotte, Whiteville, Bolivia and Oak
Island, North Carolina facilities and the Whiteville
Warehouse Coordinator; excluding Meter Readers, of-
fice clerical employees, guards and supervisors as de-
fined in the Act.
12. At all times since September 19, 1989, and continuing
to date, the above-named Union has been the collective-bar-
gaining representative of the employees in the above-de-
scribed unit appropriate for bargaining, and, since September
27, 1989, certified as exclusive collective-bargaining rep-
resentative for employees in the above unit; and, by virtue
of Section 9(a) of the Act, has been, and is now, exclusive
representative for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment of the above unit
employees.
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
13. By the Company’s unilateral conduct on March 15,
1990, in designating the two unit employees formerly occu-
pying the unit positions of drafting and mapping coordinator
and load management coordinator to the two newly created
supervisory (and/or managerial) nonunit positions of engi-
neering assistant supervisor and load management coordina-
tor supervisor, with improper continued assignment of unit
work to be performed by them, without notice and bargain-
ing with the Union thereon, the Respondent Employer has
violated Section 8(a)(5) and (1) of the Act.
14. By BEMC’s discharge of George Douglas Smith on
May 10, 1990, the Respondent Employer has engaged in
conduct in violation of Section 8(a)(3) and (1) of the Act.
15. By all the above conduct, the Employer has engaged
in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
16. The Employer has not engaged in any other unfair
labor practices that are alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily suspended its em-
ployee George Douglas Smith for 4 days, and subsequently
discriminatorily discharged him on May 10, 1990, it must
offer him reinstatement and make him whole for the 4-day
suspension, and for any loss of earnings and other benefits,
computed on a quarterly basis from date of his discharge to
date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
As it appears from an all party posthearing telephone con-
ference call that Smith has served in Dessert Storm, the Em-
ployer will be required to notify Smith, if presently serving
in the Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces. As Employer has effectively assigned unit work to
individuals occupying positions not in the bargaining unit, in
agreement with request of General Counsel, I shall rec-
ommend that Employer be ordered to rescind any assignment
of unit work to nonunit positions, whether supervisory and/or
managerial, or otherwise; and cease and desist therefrom
without first lawfully bargaining with the Union about it.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Brunswick Electric Membership Corpora-
tion, Shallote and Whiteville, North Carolina, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals for
engaging in union activity.
(b) Orally maintaining a rule or practice that
discriminatorily prohibits only talk about the Union.
(c) Coercively interrogating any employee about their
union activities, interests or sympathies, or those of their fel-
low employees.
(d) Creating the impression of surveillance of its employ-
ees’ union activities.
(e) Urging employees to report overly broad, subjectively
perceived ‘‘Union pressures’’ not involving union threats.
(f) Unlawfully encouraging its employees to identify other
employees who support the Union.
(g) Coercing and harassing any employee, by telling the
employee since the employee and Union have been here, the
employee hasn’t done anything but cause trouble; and, if the
employee or anybody else thought they could do better, they
should quit and find another job; and, by telling its employ-
ees continued collective bargaining on the subject of wages
is futile.
(h) Engaging in unlawful unilateral conduct in designating
unit employees formerly occupying the unit positions to
newly created supervisory (and/or managerial) nonunit posi-
tions with improper continued assignment of unit work to be
performed by them, without notice and bargaining with the
Union thereon.
(i) Discriminatorily suspending, discharging or in other
manner discriminating against George D. Smith, or any em-
ployee for supporting Local Union #495, International Broth-
erhood of Electrical Workers, AFL–CIO, CLC, or any other
union.
(j) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind any assignment of unit work to nonunit posi-
tions; and, on request, bargain with the Union as exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All trade and craft employees including Right of Way
Operators, Groundmen, Apprentice Linemen, first-class
linemen, second-class linemen, Heavy Equipment Oper-
ator, Electronic Technicians, Warehousemen, Assistant
Warehousemen, Servicemen, Lighting Technicians,
Building and Ground Technicians, Load Management
Coordinator, Coordinator of Services, Drafting and
Mapping Coordinator, Staking Engineer, Junior Staking
Engineers/Service Representatives, and Dispatcher at
the Respondent’s Shallotte, Whiteville, Bolivia and Oak
Island, North Carolina facilities and the Whiteville
Warehouse Coordinator; excluding Meter Readers, of-
fice clerical employees, guards and supervisors as de-
fined in the Act.
(b) Offer George Douglas Smith immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to se-
niority or any other rights or privileges previously enjoyed;
or, if he is presently serving in the Armed Forces of the
423BRUNSWICK ELECTRIC CORP.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor 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.’’
United States, notify him of his right to full reinstatement
upon application in accordance with the Selective Service
Act and Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces; and, make
him whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(c) Remove from the files of George D. Smith, any ref-
erence to his unlawful suspension and discharge and notify
him in writing that it has done so and that it will not use
the supension or discharge against him in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facilities in Shallotte and Whiteville, North
Carolina, copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Regional Di-
rector for Region 11, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT unlawfully maintain a rule or practice that
discriminatorily prohibits talk about the Union.
WE WILL NOT create the impression of surveillance by un-
lawfully telling our employees we are aware of their union
activities.
WE WILL NOT unlawfully restrain our employees in the ex-
ercise of their above Section 7 rights by urging our employ-
ees to report union pressures, other than threats.
WE WILL NOT unlawfully encourage employees to identify
other employees who support the Union.
WE WILL NOT unlawfully interrogate our employees about
their union activities, sympathies, or interests, or that of other
employees.
WE WILL NOT harass and coerce any of our employees by
telling them that since the Union has been here, they haven’t
done anything but cause trouble; or, that if any employee
thinks that they could do better, they should quit and find
another job; or, tell our employees that the Union’s contin-
ued bargaining with the Company on wages will be futile.
WE WILL NOT discriminatorily suspend or discharge
George ‘‘Doug’’ Smith, or any other employee because of
their activities in support of Local Union #495, International
Brotherhood of Electrical Workers, AFL–CIO, CLC, or any
other union.
WE WILL NOT unilaterally assign unit work to any individ-
uals outside the unit, without notice to and first bargaining
with the Union about it.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer George Douglas Smith immediate and full
reinstatement to former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to se-
niority or any other rights or privileges previously enjoyed;
or, if he is presently serving in the Armed Forces of the
United States, notify him of his right to full reinstatement
upon application in accordance with the Selective Service
Act and Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces and, make
him whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against him.
WE WILL remove from the files of George Douglas Smith,
any reference to his unlawful suspension and discharge and
notify him in writing that we have done so and that we will
not use the supension or discharge against him in any way.
WE WILL rescind any unilateral action of ours in assigning
unit work to the new supervisory and/or managerial positions
of engineering assistant supervisor and load management su-
pervisor.
WE WILL, on request, bargain with the Union as exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All trade and craft employees including Right of Way
Operators, Groundmen, Apprentice Linemen, first-class
linemen, second-class linemen, Heavy Equipment Oper-
ator, Electronic Technicians, Warehousemen, Assistant
Warehousemen, Servicemen, Lighting Technicians,
Building and Ground Technicians, Load Management
Coordinator, Coordinator of Services, Drafting and
Mapping Coordinator, Staking Engineer, Junior Staking
Engineers/Service Representatives, and Dispatcher at
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent’s Shallotte, Whiteville, Bolivia and Oak
Island, North Carolina facilities and the Whiteville
Warehouse Coordinator; excluding Meter Readers, of-
fice clerical employees, guards and supervisors as de-
fined in the Act.
BRUNSWICK ELECTRIC MEMBERSHIP COR-
PORATION