Fayetteville Industrial Maintenance, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 889 (N.L.R.B. 1975)

FAYETTEVILLE INDUSTRIAL MAINTENANCE, INC. 889
Fayetteville Industrial Maintenance, Inc. and Richard
Bishop and United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO. Cases 11-
CA-5380, 11-CA-5568, 11-CA-5720, and 11-
CA-5780
June 26, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLo
On December 10, 1974, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding . Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions ' of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
1. The Administrative Law Judge found that the
transfer of Richard Bishop to more onerous work on
April 30, 1974, and the notation in his personnel file
the same date that he was on probation, did not
violate the Act. We disagree,
On April 20, 1974, Bishop was warned that he
could "get hurt messing with the Union." On the
same date, as discussed below, he was given a written
warning for distributing„ cards "during working
hours." The following week, shortly before quitting
time on Friday, April 27, Bishop's name, along with
two others, was added to a list of employers who
were scheduled to work on, Saturday, April 28. The
list was posted at the timeelock . However, earlier in
the week Bishop had approached his supervisor,
Dewey Touchton, and, stating that he had a weekend
commitment with the Boy Scouts, requested that he
not be required to work on that Saturday. Moreover,
1 In agreeing with the conclusion of the Administrative Law Judge that
Gamble was lawfully discharged , we rely on his credibility resolutions and
find that Gamble 's version of the events suggests no rational explanation of
why Inabinet should have fired him so summarily. However, we do not rely
upon his supplemental supporting statements regarding Respondent's
motivation. The Administr ative Law Judge stated that "the, election was
long past and the Company was ahead of the game , for the balloting results
of the moment were in its favor," implying that there would now be no
discriminatory reason to discharge union activist Gamble. We disagree with
that implication. We also disagree with the conclusion that Gamble had
made devious use of a medial statement 9 days prior to his discharge and
the consequent implication that Respondent 's failure to take advantage of
the occasion supports a lawful motivation in Gamble's discharge.
In our opinion , the issue as to the validity of Gamble's discharge turns on
an issue of credibility . The Administrative Law Judge credited Manager
Inabinet's version of the events which led to Gamble's discharge and
218 NLRB No. 128
during the afternoon of the Friday in question-
indeed only a short while before his name was added
to the Saturday work list-Bishop asked Touchton if
he (Bishop) was going to be off the next day. His
supervisor responded in the affirmative. Consequent-
ly, Bishop, assured that his request had been granted,
did not look at the list when he clocked out.
However, on Monday, April 30, Bishop was orally
reprimanded for missing work on Saturday, a
notation was added to his personnel file, and he was
placed on probation and transferred from the
cafeteria to the Banbury, the "dirtiest area" of the
plant where raw rubber is melted down.
The timing of this incident, under these circum-
stances , only 1 week after the warnings relating to
Bishop's union activity, leads to the conclusion that
the transfer and probation notice were a direct result
of Bishop's union activity. Additionally, of the 10 or
so employees assigned to the Banbury area at that
time, 7 were employees of Kelly Springfield perma-
nently assigned to that area, and only 3 were
employed by the Respondent. One of these three
employees became a supervisor and the other
remained only 1 month. However, Bishop remained
for almost 5 months. We therefore find that the
transfer and probation notice given to Bishop on
April 30 violated Section 8(a)(3).
2. Although the Administrative Law Judge found
several violations of Section 8(a)(1), he found that
the warning to Bishop "not to pass out any union
papers during Working hours" did not constitute a
promulgation of a rule and was therefore not
unlawful. We disagree. In our decision in Essex
International, Ine.,2 we concluded that the use of the
term "working hours" in a no solicitation-no distri-
bution rule was presumptively invalid as that term
would encompass time that is allotted for nonworking
time, such as lynch and break periods. The facts
herein appear to fall within that proscription and,
although the warning was directed at one individual,
it was, nonetheless, a violation of Section 8(a)(1). We
therefore find that the, warning to Bishop "not to
pass out any union papers during working hours"
concluded that this version furnished legitimate cause for Gamble's
discharge. Our dissenting colleague apparently accepts the Administrative
Law Judge's credibility resolution , but would find that the assigned cause
for the discharge was a pretext,, the real reason being Gamble's union
activities. However, the Administrative Law Judge rejected a pretext finding
on the basis of "the record as a whole." Although we have not relied on the
Administrative Law Judge's supplemental supporting statements for this
conclusion , we are nevertheless not satisfied on the basis of the entire record
that the General Counsel has -proved by a preponderance of the evidence
that the real cause for Gamble 's ^ discharge was other than that assigned by
Respondent . Accordingly, we have adopted the Administrative Law Judge's
conclusion that Gamble was not discriminatorily discharged . See Klate Holt
Company, 161 NLRB 1606 (1966).
2 211 NLRB 749 (1974) (Members Fanning and Jenkins dissenting).
Member Jenkins agrees with his ' colleagues' finding in the instant case, but
for reasons he has stated in Essex.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether embodied in a rule or specifically directed at
Bishop violated Section 8(a)(1).
3. The complaint alleges that Respondent
changed employee Gamble's lunch period in such a
manner as to isolate Gamble, a known union
supporter, from other employees in violation of
Section 8(a)(1). While the Administrative Law Judge
inadvertently neglected to consider this allegation,
we note that the record supports such a finding. The
testimony discloses that Gamble's lunch period was
rescheduled to commence at 11:20, whereas, all of
the other employees' lunchbreak began at 11 o'clock.
We therefore find that Respondent isolated employ-
ee Gamble from other employees because of his
union activities in violation of Section 8(a)(1) of the
Act.
AMENDED CONCLUSIONS OF LAW
Substitute the foll owing for the Administrative
Law Judge's Conclusion of Law 2 and renumber
existing Conclusion of Law 3 as 4:
"2. By transferring Richard Bishop from April 30
until September 18, 1973, and placing a probation
notice in his personnel file on April 30, 1973, the
Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a)(3) and (1)
of the Act.
"3. By the foregoing conduct, by interrogating
employees concerning their union sentiments, by
telling employees they would be hurt or get into
trouble because of union activities, by warning them
of future disadvantage flowing from such activity, by
threatening to blacklist employees in retaliation for
union activities, by offering them bribes as induce-
ment to abandon union, activities, by asking employ-
ees to spy and report on the union activities of other
employees, by isolating union supporters from other
employees, and by telling employees they may not
pass out any union papers during working hours, the
Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that Respondent,
Fayetteville Industrial Maintenance, Inc., Fayette-
ville, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended' Order, as so modified:
1. Substitute the following for paragraphs 1(a)
and (b):
"(a) Discharging, transferring, placing on proba-
tion, or in any other manner discriminating against
its employees because of their union activities.
"(b) Coercively interrogating employees concern-
ing their union sentiments or activities, telling
employees they would be hurt or get into trouble
because of union activities, warning employees of
future disadvantage in consequence of such activi-
ties , threatening to blacklist employees to curtail
union activities, offering bribes to employees as
inducement to abandon union activities, asking
employees to spy and report to the employer upon
the activities of other employees, isolating union
supporters from other employees, or telling employ-
ees they may not pass out any union papers during
working hours."
2. Add the following as paragraph 2(b) and
reletter the remaining paragraphs accordingly:
"(b) Remove from the personnel folder of Richard
Bishop the probation notice issued April 30, 1973,
and the warning not to pass out union papers during
working hours issued April 20, 1973."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, concurring and dissenting in part:
I agree with my colleagues in all particulars but for
their adoption of the' Administrative Law Judge's
recommended dismissal of the allegations of the
complaint pertaining to Leroy Gamble.
Employee Leroy Gamble became one of the
Union's staunchest supporters after he was hired in
September 1973, and became active in the campaign
by assisting employee Richard Bishop in openly
soliciting support from the Respondent's 70 employ-
ees. Of course, the Respondent was well aware of
these activities. Indeed, at an employee meeting
called to discuss the Union, Gamble told the
Respondent's agents and assembled employees that
"we're going to get this Union, maybe not tomorrow,
but were all going to keep trying until we've got it
in." Within a few days before the December 5
election, at which he was an observer for the Union,
Gamble was told by the Respondent' s manager,
Frank Inabinet, that his union activities "could hurt
him," and Supervisor Dewey Touchton warned that
if he, Gamble, "got tangled up with this Union there
was no telling what'll- happen." On the morning after
the election, which the Union won, the Respondent,
well aware of Gamble's chronic asthma, ordered him
to clean a chute in the "banbury"-referred to as the
"dirtiest area" in the plant because of the accumula-
tion of fumes from melted rubber, dust, and
excessive carbon. Gamble again explained his chron-
ic illness and refused the assignment . Thereupon, he
was promptly terminated . The Administrative Law
FAYETTEVILLE INDUSTRIAL MAINTENANCE, INC. 891
Judge found, and my colleagues agree, that the
discharge was clearly motivated by a desire to
retaliate against Gamble for his open support of the
Union.
Gamble was eventually reinstated on March 13,
1974, pursuant to the parties' settlement agreement,
which also stipulated the holding of a new election
on April 24. However, on June 1, following the
defeat of the Union at this second election, Gamble
was again discharged. Unlike my colleagues, I ford
that this second termination was motivated, at least
in part, by the same unlawful considerations which
prompted Gamble's discharge in December.
Inabinet told Gamble on his first day after
reinstatement, March 13, that "nothing has changed.
When we want you to go in the banbury, go." On
that day, and over the next [0 weeks of his
employment, Gamble was regularly assigned-two
or three times each workweek-to the banbury.
Gamble did not protest and, as far as the record
shows, accepted his fate willingly, although such
work further aggravated his asthmatic condition.
During this period, March 13 to June 1, the
Respondent kept a close watch over Gamble and
specifically noted his alleged tardiness on six differ-
ent occasions , twice placing him on 30-day proba-
tion. On two such occasions , Gamble was written up
for being late for work by 1 minute. Gamble did
admit to tardiness on three occasions, but either
disputed or was unaware of the other incidents. On
May 15, Inabinet wrote to Gamble warning him of
his "intentional" and "excessive tardiness." 3 Finally,
on March 23, Inabinet noted on another
"disciplinary action report" that Gamble had "failed
to bring in proof of illness" explaining his doctor's
visit on the previous day. My colleagues now find,
contrary to the Administrative Law Judge, that this
last alleged dereliction was clearly a sham . For it is
undisputed that Gamble visited his physician be-
cause ' of a recurring bout with asthma, and, as
"proof" of his ailment, he submitted upon his return
to work a copy of his medical history outlining in
considerable detail the seriousness of his chronic
asthmatic condition. Although the physician's file
was 3 years old, the attending nurse updated the
report by writing the date, May 22, 1974, to show
that Gamble had visited the-physician on that date
for further treatment of his longstanding illness.
The record also shows that Gamble was singled out
for special treatment in other ways after his reinstate-
ment. Thus,; at the April 21 "picnic" the Respon-
dent's president forewarned Gamble that he had
planned a program on antiunion activity for that
night and he would "throw [Gamble] out" if he did
not "act like a gentleman." Later, Supervisor Roy
Piernas told Gamble that the Union was "not going
to help, it's going to hurt you." But perhaps most
telling of all is the Respondent's blatant effort to
isolate Gamble from the other 70 employees. Thus,
as my colleagues find, it is undisputed on this record
that, shortly after his reinstatement, Gamble was
spotted by Frank Inabinet eating his lunch with
fellow union adherent Bishop. When Inabinet asked
what Gamble was doing there, Gamble replied that
he was taking his regular 20-minute 11 o'clock
lunchbreak, as provided for in the Respondent's rule
book. Inabinet retorted, "I'm going to bend the rules
for you. I want you to eat lunch at 11:20."
We now turn to the events of June 1, and Gamble's
second discharge. As the Administrative Law Judge
concluded, the testimony of Gamble and Frank
Inabinet is "hopelessly irreconcilable." In any event,
according to Inabinet, he received a phone call from
Mrs. Gamble in which she requested that her
husband be permitted to come home because their
daughter was stricken with an asthma attack which
required medical attention. Inabinet then went into
the plant and, fording Gamble coming off his 1 p.m.
break,4 relayed the emergency message . Gamble
called his wife, reported to Inabinet that his daughter
had recovered from a mild asthma attack, and said
that he did not have to leave work. Whereupon,
Inabinet told Gamble to return to his job.
Again, according to Inabinet's testimony, several
minutes later he found Gamble by a telephone in the
pumphouse some 300 yards from the banbury. When
asked what he was doing, Gamble replied that he was
calling his brother to arrange for him to take the
baby to the doctor. Inabinet replied that he under-
stood Gamble to say earlier that the child was well.
Gamble did not respond. Nor did Gamble respond
when asked what he was doing in the pumphouse.
Inabinet then drove Gamble to the Kelly Springfield
maintenance office where he learned that Gamble
had not been assigned to the pumphouse. Gamble
was then discharged.
Of course, an employee's momentary, but unex-
cused, absence from his assigned duties-albeit for
the purpose of arranging transportation of a sick
child to a doctor-may be considered a serious
infraction and, absent a showing of discrimination
under the Act, an employer may take whatever
3 Tardiness was not the only matter the Respondent kept under close know where in the banbury Gamble was assigned because , as Inabinet
scrutiny: On May 14, Inabinet wrote a letter expressing "concern" over the admitted , he approached Gamble as the latter was leaving his break, and
"amount [61 of on-the-job injuries" Gamble sustained since joining the not on "the spot' where Gamble worked . Thus, there is nothing at all
Respondent in 1973. Implausible in Gamble's testimony that Inabinet askedwhere Gamble was
4 Contrary to the Administrative Law Judge's finding, Inabmet did not working.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disciplinary action, including discharge, it deems
appropriate. On the other hand, our Act protects an
employee from coercive threats and warnings,
deliberate isolation from fellow employees, imposi-
tion of personally hazardous working conditions, and
discharge where, as shown here, such actions are
taken in retaliation for the employee's protected
activities.
For me, the question in this case is whether the
June 1 discharge can be divorced from the aforemen-
tioned unlawful discrimination meted out to Gamble
over the previous 6 months of his employment. In my
view it cannot, and I find that Gamble's second
discharge was occasioned, at least in part, by the
same unlawful motivation which triggered his first
discharge. Thus, it is apparent to me, and as my
colleagues agree, that the Respondent was "very
definitely determined to avoid collective bargaining,"
and toward that end engaged in a discriminatory
campaign against the Union's leading adherents,
Bishop, Sinclair, and Gamble. Moreover, Gamble
was still a serious threat long after his reinstatement
on March 13, as clearly shown by the conduct at the
April 21 "picnic," the blatant attempt to isolate
Gamble from its other employees, the repeated
assigning of Gamble to the banbury in spite of
Gamble's asthma, the need to keep a "sharp eye" 5 on
Gamble by taking strong exception to his 1-minute
tardiness, and, finally, resorting to a sham in order to
build its case against him. In sum, I find that by June
1 the Respondent was willing to seize upon any
pretext for terminating 'Gamble, and the
"pumphouse" incident presented just such an oppor-
tunity. Indeed, Inabinet conceded, he "may" even
have told Gamble he was being discharged before it
could be determined whether, in fact, Gamble had
not been assigned to the pumphouse. In my view,
such haste can only be explained by the Respon-
dent's prevailing desire to rid itself, once again, of
one of the Union's leading adherents.
5 The Administrative Law Judge found that the Respondent meticulous-
ly scrutinized the work habits of all employees , but the record shows only
this was the customary practice for Bishop, Sinclair, and Gamble.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were permitted to
introduce evidence , the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice,
and abide by the following:
WE WILL NOT discharge, transfer, place on
probation, or in any other manner discriminate
against our employees because of their union
activities.
WE WILL NOT coercively question our employ-
ees concerning their union activities or senti-
ments.
WE WILL NOT threaten our employees with
disadvantage, hurt, or trouble because of their
union activities.
WE WILL NOT threaten to blacklist our employ-
ees so as to prejudice their chances of future
employment because of their union activities.
WE WILL NOT offer bribes to our employees to
induce them to abandon any union activity.
WE WILL NOT invite our employees to spy upon
the union activities of fellow workers and to
report such information to us.
WE WILL NOT isolate union supporters from
other employees.
WE WILL NOT tell our employees that they may
not pass out union papers during working hours.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to join
or assist United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, or any
other labor organization, and to engage in other
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL offer Alvester Sinclair immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent position.
WE WILL pay Alvester Sinclair for any earnings
he lost as a result of our discrimination against
him, plus 6-percent interest.
WE WILL remove from the personnel file of
Richard Bishop the probation notice of April 30,
1973, and the warning notice of April 20, 1973.
FAYETTEVILLE
INDUSTRIAL
MAINTENANCE, INC.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held on October 1, 2, and 3, 1974, at
Fayetteville, North Carolina, on a consolidated complaint
issued on July 24, 1974, against Fayetteville Industrial
Maintenance, Inc., herein called the Respondent or the
Company. The complaint rests upon four separate charges,
one filed by Richard Bishop, an individual, on July 2, 1973,
(Case 11-CA-5380), and three filed by United Rubber,
FAYETTEVILLE INDUSTRIAL MAINTENANCE, INC. 893
Cork, Linoleum and Plastic Workers of America, AFL-
CIO, herein called the Union, on December 12, 1973 (Case
11-CA 5568), on May 1, 1974 (Case 11-CA-5720), and on
June 17, 1974 (Case 11-CA-5780). An earlier complaint
based on the first two charges filed was issued on January
30, 1974, against the same Respondent. In March 1974, a
settlement was made with respect to all allegations
contained in that first complaint; part of the agreement
was that the Respondent would not thereafter restrain or
coerce its employees in violation of the statute. Upon
investigation of the two later charges the Regional Director
set aside the settlement agreement, on the grounds that the
Respondent had in fact later committed further unfair
labor practices proscribed by Section 8(a)(1) and (3). The
principal issue now presented is whether the Respondent
violated Section 8(a)(1) in a number of'respects, whether
Richard Bishop was transferred to less desirable work in
retaliation for his prounion activities, and whether Alvester
Sinclair was once discharged, and Leroy Gamble was twice
discharged, in order to put a stop to self-organizational
activities among the employees.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Fayetteville Industrial Maintenance, Inc., supplies, by
contract, cleaning services to Kelly Springfield Tire
Company, a large rubber tire manufacturer in Fayetteville,
North Carolina. At this one location the Respondent
directly employs about 75 persons, all essentially unskilled
cleaning or janitorial employees. This corporation is an
integral part of a multistate operation. During the past 12
months, a representative period, the Respondent received
goods and raw materials in the State of North Carolina
directly from out-of-state sources valued in excess of
$50,000. During the same period it performed services
outside the State of North Carolina valued in excess of
$50,000 . I find that the Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that United Rubber, Cork, Linoleum and Plastic
Workers of America , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
solicitation was carried on openly - on the parking lot, at
the timeclockTafter people had punched out or before they
punched in, in the morning. The Union filed a petition on
October 11, 1973, (Case 11-RC-3823) and on October 31,
1973, there was a consent-election agreement and a Board-
conducted election took place on December 4, 1973.
Among the approximately 77 eligible employees, the
Union won - 40 to 28 - but the Company filed
objections to conduct affecting the results. In the following
year that election was set aside by agreement of, the parties
and a new election was held by the Board on April 24,
1974.
On April 30, 1973, Bishop was transferred from one
assignment to another; he had for some months been doing
cleaning work in the Kelly cafeteria and was sent to what is
called the "banbury" area, where work is more unpleasant
because of the dirty rubber production conditions and
machinery. About 5 months later, on September 18, 1973,
he was transferred out of that area to other work, not as
undesirable. The complaint alleges Bishop was placed in
and kept in the banbury area during that period to punish
him for his prounion activity, and that thereby the
Respondent violated Section 8(a)(3) of the Act. In defense
the Company contends the assignment was made only in
the normal course of business.
On December 5, 1973, the day after the first election,
Gamble was discharged, because of his efforts in the union
campaign, according to the complaint, but in discipline for
refusing a work order, according to the Company.
On April 21, the Respondent gave a big party- for its
employees and their wives, with dining and drinking, and
with door prizes - including a deep freeze - as an
expression of good will. It is clear a major purpose of the
festivities was to wean the employees away from any
prounion sentiments in the second election scheduled for 3
days later. Towards the end of the evening top manage-
ment told Alvester Sinclair, an ordinary janitor, he was
discharged, purportedly for having come to work 5 minutes
late 2 days earlier. The complaint says the dismissal was a
violation of Section 8(a)(3).
Leroy Gamble was restored to work on March 13, 1974,
in keeping with the informal settlement of the earlier
charges and complaint. He was discharged again on June
1, and again the complaint calls his dismissal retaliation for
union activity and an unfair labor practice. This time the
affirmative defense is that Gamble had a new record of
disregard of work rules and that day violated another one
by wandering away from his work station during paid time
without reason.
A. A Picture of the Case
There was a successful union campaign in favor of the
Rubber Workers in 1972 among the employees of Kelly
Springfield; these are production workers of Kelly Spring-
field close to whom the Respondent's janitorial employees
spend their time doing the cleaning. Richard Bishop was
hired by the Respondent in June 1972, and in March 1973
began to distribute Rubber Workers cards among the
Respondent's workmen; it is undisputed that he gave a
card to his supervisor also, one Dewey Touchton. Leroy
Gamble helped him and the card distribution and
1. Richard Bishop
Considering the totality of the record facts, I do not
believe the evidence suffices to prove affirmatively that
Bishop was transferred to the less desirable assignment on
April 30, 1973, because of his union activities. The
Company did know he was, even that early, distributing
union cards, for there was received in evidence a
disciplinary report from the company files indicating he
was warned on April 20 about such activity "during
working hours." Bishop testified that when telling him it
was against the law to distribute cards during working
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, Manager Frank Inabinet also said to him "I'd get
into trouble, that I was playing with 85 people's jobs and
the Union was no good . . . that I could sure get hurt
messing with the Union and he went on to say that he did
what he had to do and he said, `I wain you.' " Inabinet
denied making threats of any kind of any employee. I do
not credit him on that score.
I find the manager's warning that the employee could be
"hurt" because of his union activities was a coercive threat
and therefore a violation of Section 8(a)(1) of the Act. In
his brief the General Counsel makes a very extended legal
argument that Inabinet's further statement to Bishop that
he should not distribute union literature "during working
hours," precisely repeated in the related reprimand given
him that day, should be viewed as the unlawful establish-
ment of a rule against solicitation anywhere in the plant
while any employee was on duty, regardless of whether the
individual participants at the moment might themselves be
off duty. This business about the reprimand slip was told
by Bishop only; Inabinet said nothing about it at the
hearing. But Bishop did not protest when the manager
spoke about "working hours"; rather, he said he told the
manager he knew all about that. I doubt a single
reprimand to a man who does not himself even deny
distributing union literature when he or the recipient was at
work could justify a broadside unfair labor practice fording
of an illegal no-solicitation rule promulgated by a
Respondent. There is no evidence anyone else was told of
any restriction upon the right to distribute union literature.
In any event, if the company knowledge of Bishop's
union activity, and the manager's intimidating comments
to him on April 20, be viewed apart from all else the record
shows, an inference of illegal intent in any later discrimina-
tion against him might be warranted.
But there are also facts of record tending to weaken the
inference of illegal motivation in the transfer of this man in
April 1973. As it developed, towards the end of the year
and in the spring of 1974, the Respondent turned out to be
very strongly opposed to the Union; its agents again and
again made speeches to assembled employees aimed at
dissuading them. They even hinted at some retaliation. But
there is nothing seriously indicating unlawful resolve in the
Respondent until many months after this particular
reassignment of one man. People are shifted about from
one area to another with regularity. Wilson, the Rubber
Workers field representative, said Bishop never got in
touch with him until September; the only meeting he spoke
of as taking place in Bishop's house came after that.
Gamble was Bishop's righthand man, but he was not even
hired until August, and therefore his activities together
with Bishop must have been carried on in September also.
Moreover, Bishop admitted that when, in April, he was
sent to banbury, 10 other workmen were sent there with
him, because "the place was in worse shape than it should
have been . . . . They were brought from other areas also
to be placed with the guys that worked in the banbury." He
also said "some of those people that got moved there got
moved back." For all this record shows, some of the
transferees may still be there. Of greater significance is the
fact that Bishop was moved back out of the less desirable
area during the very period when the union campaign
really began to go into full swing. Indeed, he must have
been most active during the month of September, for the
Union's petition was filed on October 11, 1973. If general
knowledge of union activity is to be taken as support for an
inference of animus against Bishop, this was the time for
the Company to hurt him, not favor him, as it did.
And finally, the story of what happened at the time of
the reassignment helps the defense no less than the
complaint. On Friday a list is posted at the timeclock; it
tells the employees who is to work Saturday. Bishop
testified he asked his supervisor at 2:30 p.m. Friday, April
27, was he off the next day, and that he was told yes. It is
also a practice in the plant to add names to the list first
prepared on Friday, whenever Kelly Springfield calls to
say so many more men are needed for Saturday. During
that afternoon three names were added because such a
request was received, and the list was posted as usual at the
clock. It was received in evidence, and it has 19 names on
it, including Bishop's as the next to the last at the bottom.
Everybody else - i.e. all but Bishop - saw it, and
everybody else reported for work Saturday. (One man
called in at 7 a.m. to say his car was broken.) Bishop said
he did not know his name had been added; he said he saw
the posted list when he clocked out at the end of the shift,
but that he did not look at it. It is not a likely story. On
Monday the Respondent placed him on probation for 30
days and transferred him to the banbury area.
In the total circumstances, I shall recommend dismissal
of the complaint allegation that the Respondent violated
the Act by transferring Bishop that day, or by noting on his
personnel file that he was on probation.
2. Alvester Sinclair
Sinclair was hired on November 1, 1973; it was not
shown he took any affirmative steps to further the union
cause. But in the course of the Company's intensive
campaign to talk the employees out of the whole idea
several supervisors talked to him personally. Rowland
Rector, his immediate supervisor, asked for his name and
how many dependents he had, and made written note of
the answers as he talked. Rector then told him if the Union
came into the Company and pulled a strike, Sinclair would
be hard put with so many dependents. The janitor's answer
was that he once belonged to a bakery union and that it
was a good one. On April 10, now 14 days before the
second election, another supervisor, Roy Piernas, talked in
private to Sinclair. Piernas said he was black and Sinclair
was black; he, Piernas, was close to Benjamin Inabinet, the
president of the company; if Sinclair had trouble he could
always go to Piernas. And then Piernas asked the janitor
how he was going to vote. Instead of answering, Sinclair
"told him that anything that the Government had their seal
on was good." On April 18, President Inabinet sat Sinclair
next to him near the cage office and, with the written data
about the man in his hand, asked was he Sinclair, did he
have six dependents, was he satisfied here, didn't he want
to find a better job elsewhere, Inabinet could help him.
Inabinet then asked what did Sinclair think of the Union,
and again the answer was he liked the "bakery industries
union."
FAYETTEVILLE INDUSTRIAL MAINTENANCE, INC. 895
At 11 p.m. on April 19, Sinclair arrived at work 5
minutes late. He was made to wait 15 minutes outside the
gate and then Supervisor Rector came out to say he should
go home, and that Frank Inabinet, the general manager,
wanted to see him at 10 o'clock the next morning. When
Sinclair did come the next day the manager told him his
record of lateness and absences was bad, and that the
question of his discharge was therefore to be decided. This
was Saturday morning and Sinclair was not scheduled to
work that night.
On Sunday evening, April 21, he went - with his wife -
to the Respondent's party for all employees. The president
was there, greeted him by name and shook hands with him.
Sinclair asked what about the termination business, but the
president said it had not yet been decided. As the party
progressed two men were presented from one of the
Company's affiliates in another city, where there was a
union ; they compared their paychecks with those of two
men from Fayetteville, to illustrate how the nonunion men
were better off financially. One of the local employees is a
preacher and he blessed the food with a sermon on Peter
and the Union, telling how he first favored the Union, but
on awakening to the teaching of Peter about one big happy
family, he changed his mind. There is also testimony that
at one point during the party Benjamin Inabinet talked
from a platform, called himself a creator of jobs, said the
Company sought to help elderly people, and added there
were some young ones who were against the Company. He
pointed to the rear and said, "I see two men in the back
that is not with us." He pointed to where Sinclair was
sitting with one other man, Roper. "They are either with us
or they are against us," continued Inabinet, "Love us or
leave us."
Later, right after Sinclair had picked up a bottle of beer
and a bottle of wine, President Inabinet invited him to a
private chat. Upon learning that they were both Masons,
Inabinet asked the janitor why did Sinclair "want to fuck
up his brother?" To this Sinclair answered Piernas must
have reported to the president about Sinclair's intention to
vote for the Union. A short time later, right there at the
panty, while people were still having fun, the supervisors
told Sinclair he was fired. He never went back into the
place of business.
The facts set out above are all from Sinclair's or Leroy
Gamble's direct and perfectly credible testimony; none of
it was contradicted. I find the Respondent discharged him
because it was convinced he would vote for the Union 3
days later, in order thereby to weaken the union move-
ment, and thereby violated Section 8(a)(1) and (3) of the
Act. No employer rationally intending to discipline an
employee for old infractions of working rules would go
through a charade like this. I also find that by Supervisor
Piernas' interrogation of Sinclair as to how he was going to
vote in the election, by his implicit offer of material
assistance in return for a no-union vote, and by President
Inabinet's further interrogation of Sinclair, the Respondent
violated Section 8(a)(l).
3. Leroy Gamble
The successive discharges of this man, each time directly
and immediately decided by Manager Inabinet, present as
to each occasion 7 months apart, the most direct and
irreconcilable conflict in testimony between him and the
manager. As in the case of Bishop's transfer early in 1973,
if a fording of illegal discharge can be made, it must rest
'upon an inference affirmatively warranted by relevant
facts. There is no direct evidence of illegal motive, for in
neither instance, even if Gamble be believed down to the
last detail of his recital, did anyone make the slightest
reference to the Union, or union activity, in connection
with the discharges.
On December 5, 1973, Gamble refused to carry out a
direct order to clean a certain chute in an area called the
maintenance location of the Kelly plant. On each shift only
one employee of the Respondent is assigned to that area;
although not absolutely clear on this record, it seems the
banbury area is part of the maintenance area. In any event,
all the work done by the Respondent's people is dirty,
messy, and undesirable; these are no more than cleaning
men, janitors, sweepers, moppers, etc. There was general
agreement at the hearing that the banbury area is the least
desirable, because of fumes in the air, dust flying about,
and excessive accumulation of carbon and refuse. The
Respondent's man who is assigned there takes his direction
from the foremen of the Kelly plant who are in charge of
everything going on there.
During September and October 1973, his first 2 months
on the job, Gamble worked in this maintenance depart-
ment, doing 2 or 3 days weekly in the banbury area. He
suffers from asthma and conditions there were bad for him.
He spoke of this to his supervisor, Touchton. He stopped
going into banbury altogether late in October and was
never again assigned there until the morning of December
5, the day after the first Board election, which the Union
won. The Company knew he was a prounion activist. At a
meeting before the election, where company officials urged
employees away from the Union, Gamble spoke up to say
he would persist for the Union to the end. Only a week
before the December 5 incident, Manager Inabinet and
Supervisor Touchton spoke to him. The manager told him
that, for a family man "this Union could hurt me more than
it could help me." And Touchton added "he couldn't find
anything wrong with my work but if I got tangled up with
this Union there was no telling what'll happen." This from
Gamble's testimony, which I believe. Touchton did not
testify and Inabinet's denials were unconvincing.
In order to clean the dirty chute on the 5th, a man had to
climb inside and work in very close quarters and in all
probability inhale much dust and dirt. Gamble testified he
told first Price, the Kelly supervisor who asked him to do
the job, and then Inabinet who came to see what it was all
about, that he could not do this because his asthma was so
bad he could not stand the choking discomfort inside the
chute. The employee held firm to the story that he twice
refused the order on this ground, that Inabinet simply
ignored his plea, that nothing else was said, and that he
was then and there discharged during the shift.
Price, who was present during the discussion with
Inabinet, insisted there was no mention of asthma by
anyone that day, and that Gamble's excuse for not going
into the chute was that he was not wearing the right
clothes. Inabinet started by saying that when Gamble
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused his direct order to do the work, he did not ask the
reason why; twice Inabinet made this direct admission.
"Didn't it occur to you to wonder to ask him why? The
witness : That's right. At the time it didn't strike me as to
why he didn't do a job." He then reversed himself and said
he did ask the reason, and that the employee stated "he
,had on good clothes." Somebody was lying very brazenly
at the hearing, at least about this incident. There was little
to choose between Gamble and Frank Inabinet with
respect to demeanor, and there are flaws in the testimony
of both men. But considering the inherent probabilities of
,the moment and other related facts of record, I find
Gamble did protest about his asthma and that the manager
just did not care about that because he had other,
unspoken thoughts in his mind.
It is true Gamble suffers from asthma; there is a medical
certificate in evidence, and while his use of that certificate
some months later strengthens, rather than weakens, the
Respondent's affirmative defense of discharge for cause in
June 1974, the document does prove Gamble really suffers
from such, an infirmity. It stands to reason he would talk
about it that day. What reason for discharge did Inabinet
have in mind, then? It was the very day after the Union
won the election; the manager knew Gamble had helped
the Union along, even acted as union observer the day
before; he had even told him only a few days earlier the
Union would "hurt" the man; and the Company was very
definitely determined to avoid collective bargaining in this
location. I fmd the Respondent discharged Gamble on
December 5, 1973, because he was a known unioneer, and
thereby violated Section 8(a)(1) and (3) of the Act. I also
fmd the Respondent violated Section 8(a)(l) by Manager
Inabinet's statement to Gamble, shortly before the elec-
tion, that something might "happen"' to him if he
continued to assist the Union.
Gamble was'reinstated on March 13, 1974, pursuant to
the settlement agreement disposing'of all charges up to that
point, and paid' for what loss of earnings he had suffered in
the interim. Part of the agreement was that there would be
another election, and it is clear the Respondent continued
-its talking campaign designed to persuade the employees
they were -better off without the Union. And, of course, it
took Gamble back with reluctance. The manager told him,
on his first day back, "nothing has changed;" all rules of
employment would be strictly enforced. He was given
masks,' gloves and safety glasses, and put back into
banbury, where he worked thereafter "off-and-on."
'As already stated, the incident of June 1, which
precipitated Gamble's second separation, had nothing to
do with union activity or discussion. The Company said he
violated one of the working rules - wandering away from
his work area during paid time without reason. Gamble
says he did nothing wrong that day. Whatever he did or
did not do may be a question, but however that question is
decided, and even assuming he was not fired for improper
conduct of the moment, the complaint allegation that he
was in fact released because of union activities is not
thereby resolved. The affirmative burden of proving illegal
intent still remains, and more than a vacuum is required
before an unfair labor practice can be found.
A very pertinent matter here is the Company's record of
disciplinary warnings for infraction of rules, Between
March 13 and June 1 Gamble broke the rules a number of
times, at least according to the company records, the last
warning notice coming on May 22. Gamble was not
familiar with the entries in his personnel file; and even
disputed some, but he did recall coming to work late on
three occasions. The records indicate late arrivals on April
8, 9, 10 and May 15, about 10 or 15 minutes late each time.
Two additional entries are somewhat disturbing, for they
show he punched in at 7:01 a.m. on March 14 and again on
April 4. For any employer to make a written record of a 1-
minute lateness suggests something other than mere
concern with normal discipline. Clearly the Respondent
did not like taking Gamble back, for it went out of its way
to tell all the employees the arrangement of settlement with
the Labor Board was no admission of guilt. If the general
warnings Gamble got on his first day back, coupled with
the quick record notations of 1-minute latenesses,' be
considered apart from any other related facts, any
suspicion of union animus that arises from the June 1
discharge will appear more formidable.
There is persuasive indication, on the other hand, that
this company makes it a practice to keep a sharp eye on all
its employees in what to others may seem trivial' things.
The record reflects many warnings given Sinclair, long
before he had anything to do with the Union, or before the
Company had any reason to suspect him. It also appears
the foremen regularly travel about to the homes of absent
employees to check on whether they are really ill, or to
verify other excuses for not coming to work. Considering
the kind of work these men do - dirty, heavy, most
unpleasant, if not downright unhealthy - a high incident
of lateness and absenteeism is to be expected. But the
Company's contractual commitment to Kelly Springfield is
there every day to be satisfied. In the circumstances, what
to an outsider looks like excessive, and therefore' suspicious
overconcern with even a matter of minutes, may very well
be a watchdog policy dictated by the unfortunate realities
of conditions of employment here.
Be that as it may,' Gamble's wife telephoned the
company office on June 1 and left a message for her
husband to call back because the baby was very sick.
Unable to reach a lower supervisor, Frank Inabinet, the
manager, himself went into the maintenance department of
'the Kelly plant where Gamble was assigned . He relayed
the wife's message and told Gamble to let him know, after
talking to his wife, what he was going to do.' Gamble went
to a Kelly office and called his wife. Exactly what
happened from that moment on must be decided, if it can
be' decided at all, on the basis of one or the other of two
absolutely and hopelessly irreconcilable stories.
According to Gamble, he returned , from the phone,
reported to Inabinet he had to go home because his girl
was sick, and the manager told him to be sure to bring a
medical statement of some kind to prove the necessity of
his absence from work. Asked what happened then,
Gamble, as a witness, said: "He [the manager ] then said,
where are you working. I said Number 7. He said, come
with me. I went over to the maintenance shop, Sam Price's
office, at Kelly Springfield. He asked Sam Price where I
FAYETTEVILLE INDUSTRIAL MAINTENANCE, INC. 897
was working. Sam Price said Number 7 in the banbury. He
asked me to wait on the outside." Gamble continued that
he waited 15 minutes, that Inabinet came out of the office,
without a word took Gamble in his golf cart back to the
Respondent's cage office, and without another word fired
him. He did testify that at the last moment, the manager
told him, "I'm letting you go for the same reason that I let
you go before."
The manager's story is that after telling Gamble to call
home, he also told him to report to the cage office and "let
me know." Gamble came to the cage 15 minutes later to
say the child had only had a mild asthma attack, was now
better, and he did not have to leave work. With this,
Inabinet, as he told it, just ordered Gamble tb go back to
work. The manager continued that after a while, again in
his cart, as he was going to his other office in the Kelly
area, he saw Gamble in a certain south pumphouse,,
a structure outside the entire plant, 300 yards away from
the banbury area where he was supposed to be working.
Going close he saw Gamble at a telephone, and asked what
he was doing there. Still according to Inabinet, Gamble
said he was calling his brother to have him take the baby to
a doctor. In response to the manager's comment that he
had already said the child was well, and to his question
what was he doing at the pumphouse, Gamble stood mute.
Inabinet added he then took Gamble in his cart into the
Kelly building, checked and found he had not been
assigned by anyone to work at the pumphouse, and
therefore took him back to the cage office and discharged
him.
It is difficult to believe either of these stories in total.
According to Gamble, when he returned to Inabinet to say
he had to go home, the manager simply said "be sure to
bring a statement." Why did he not just go home then and
there? Instead , as he tells it, he picked a quarrel, on the
ground his wife had called in the morning and why had he
not been told sooner. In fact, this whole business of just
when the wife's message reached the Company was
exaggerated out of all proportion at the hearing. The
critical events happened in the afternoon, misbehavior or
no misbehavior by Gamble, and exactly what time the
original message came bears no relevance to the issue of
this case . If Inabinet, when he arose in the morning, was
determined to get 'rid of Gamble that day, there was no
reason to pick that particular moment, right after obliging-
ly telling the man he could take off, and even reminding
him to be careful and' not violate the rules again. The
manager said that when he heard of the wife's urgent call
for her husband, he called her back even before finding
Gamble, and that on hearing how ill the baby was he
advised her to go to a hospital emergency room, but always
to remind her husband to get that written excuse! The wife
testified nobody called her back, but she did say she spoke
to the manager personally and that he did talk of the
requisite written excuse. Again this matter of unexcused
absences or tardiness and disciplinary reprimands hear-
kens back to a recurring,reality running through this case.
On May 15 Gamble had been placed on a 30-day
probation for habitual lateness , and on May 22, only 9
days before the eventual discharge, was absent from work
altogether. He was written up then, too, for failure of proof
of illness; the record entry says the doctor's statement he
brought was 3 years old. And this is true, because the
statement was produced at the hearing and it is 3 years old,
for in it the doctor reports on his 21-year old patient, while
Gamble is now 24. Gamble said the doctor that day did
examine him, but he also testified, "I brought it in for
reasons showing why I was out and that I did have asthma.
It was not an excuse for being absent." Gamble was not
telling the, truth somewhere, if not about the June 1
incident, surely about the May 22 absence.
But apart from the fact that Gamble's version of the
events suggests no rational explanation of why Inabinet
should have fired him so summarily, there are phrases in
his testimony that tend to give credence to the manager's
recital of facts. Inabinet said that when he found Gamble
300 yards away from his last known work assignment, he
wondered whether he had been sent there by any
supervisor and therefore took the man back to Price's
office to inquire. Asked to say what happened after the
discuslsion about when the wife's call had really come,
Gamble said, "He [Inabinet] then said, where are you
working?" If he had never left the Kelly maintenance
department, why should Inabinet ask him where he was
working? Inabinet knew where he was assigned, for he had
come there to deliver the message because that was the
spot where Gamble worked. For him now to have asked
such a question, it must mean that Gamble was somewhere
else, and this is Inabinet's story. Continuing with Gamble's
words, when he answered he was working in "No. 7,"
Inabinet said, ". . . come with me. I went over to the
maintenance shop, Sam Price's office." Again, this fits well
with Inabinet's version, who said he took Gamble from
where he found him to another place, and that place was
Price's office. And finally, Gamble's story fits Inabinet's
right to the end. "He [Inabinet] asked Sam Price where was
I working." The only reason Inabinet could have had for
asking the Kelly man this question had to be because he
was checking on Gamble's absence from a last known
assignment.
I believe the manager had reason to find fault with the
man that day. Withall, his reason for dismissal could still
have been something else, but I am not satisfied the record
as a whole supports a free adverse inference . This time the
election was long past, and the Company was ahead of the
game, for the balloting results of the moment were in its
favor. Moreover, only 9 days earlier, Gamble, by his own
devious use of a medical statement he knew was not
appropriate to excuse his then absence, had given clear
cause for discharge. The Respondent did not take
advantage of the occasion, as an antiunion employer might
be expected to do. I shall recommend dismissal of the
complaint allegation that Gamble was unlawfully dis-
missed on June 1, 1974.
B. Violations of Section 8(a)(1)
On or about April 27, 1974, after the second election,
Roy Piernas, the Respondent's public relations manager,
drove to Fayetteville from South Carolina expressly to visit
with Bishop; he offered to take him to dinner, and spoke to
him on successive days. He tried to talk Bishop out of his
prounion resolve, saying this Company's employees were
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
too elderly for such activities, that what Bishop was doing
was against the Company's interests. In each of the two
talks Piemas said that the Company was offering Bishop a
job in ``labor relations," if he would work in the interests of
the Respondent instead of the Union. Piemas also said -
all this from Bishop's uncontradicted and perfectly credible
testimony - that Bishop would otherwise get hurt if he
refused the offer, that the Company was big and could
therefore "beat" him, and that it could also publicize his
activities in the newspapers so that he would be unable to
obtain work anywhere else. Bishop turned down all of the
overtures. I fmd the Respondent violated Section 8(a)(1) by
Piernas' statement to Bishop that he could be hurt by his
union .activities, that he could be blacklisted, and that he
should accept a management job as a bribe for discontinu-
ing his union activities.
There were other instances of interrogation that amount-
ed to violations of the Act. At the time of the second
election , Manager Inabinet, when delivering a paycheck to
the home of Edell Brown, an employee who had been hurt,
asked how she intended to vote in the election. This was' a
further violation of Section 8(a)(1).
Another witness called to support the complaint was
Jarvis Gardner, a former employee. He gave confusing
testimony, often vague, generalized, and sometimes incon-
sistent . At times his testimony implied he had been
discharged illegally, and the General Counsel equivocated
on whether he was or was not arguing a violation of
Section 8(a)(3) of the Act as to this man also. It then
developed ' an unfair labor practice charge had been filed
on Gardner's behalf, and that it was withdrawn during the
very days this hearing was in progress. Nevertheless,
although the witness was not always convincing, he did tell
of one conversation clearly enough, and because Manager
Inabinet's denial of threats and inquiries 'was even less
convincing, I do believe Gardner. He related how the
manager asked him would he go to the union meetings and
bring "the news back of what was going on." When
Gardner answered he would think about it, Inabinet added
"... he got some guys going around the Union Meetings
and bringing the information back to him what was going
on . . . ." I fmd that by inviting Gardner to spy on the
union activities of his fellow employees, and telling him
others were performing such `services for the Respondent,
Manager Inabinet committed further violations of Section
8(a)(1).
There is considerable evidence, much of it disputed,
about the Respondent improperly covering the cease-and-
desist notice it agreed to post pursuant to its settlement of
the earlier case mentioned above. There would be no
purpose in discussing that matter here, for whatever
happened could not be called illegal, and the settlement
was properly set aside anyway in view of the later illegal
discharge of Sinclair.
IV. THE REMEDY
In view of the unfair labor practices found to have been
committed, the Respondent must be ordered to take
appropriate remedial action. This will include, of course,
an injunction against repeating such unfair labor practices,
and an order directed towards affirmative action aimed at
undoing the effects of the improper conduct. Sinclair, who
was illegally discharged on April 21, 1974, must be restored
to his former employment, or an equivalent position, and
made whole for any loss of earnings he suffered in
consequence. There is no occasion for ordering affirmative
action with respect to Gamble, for following his illegal
discharge on December 5, 1973, he was correctly restored
to work and made whole for interim loss of earnings. The
unfair labor practices committed, however, do require a
broad' cease-and-desist order binding the Respondent not
to commit further unfair labor practices ofany kind.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation, to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. By discharging Leroy Gamble on December 5, 1973,
and Alvester Sinclair on April 21, 1974, the Respondent
has engaged in and is engaging in unfair labor practices in
violation of Section 8(aX3) of the Act.
2. By the foregoing conduct, by interrogating employ-
ees concerning their union sentiments, by telling employees
they would be hurt, or get into trouble, because of union
activities, by warning them of future disadvantage flowing
from such activity, by threatening to blacklist employees in
retaliation for union activities, by offering them bribes as
inducement to abandon union activities, and by asking
employees to spy and report on the union activities of other
employees, the Respondent has engaged in unfair labor
practices in violation of Section 8(axl) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The Respondent, Fayetteville Industrial Maintenance,
Inc., Fayetteville, North Carolina, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against its employees because of their union activities.
(b) Coercively interrogating employees concerning their
union sentiments or activities, telling employees they
1 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and Order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.
FAYETTEVILLE INDUSTRIAL MAINTENANCE , INC. 899
would be hurt, or get into trouble because of union
activities, warning employees of future disadvantage in
consequence of such activities, threatening to blacklist
employees to curtail union activities, offering bribes to
employees as inducement to abandon union activities, or
asking employees to spy and report to the employer upon
the activities of other employees.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or. to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Alvester Sinclair immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay or any benefit he may
have suffered by reason of the Respondent's discrimination
against him.
(b) Preserve and, upon 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 recommended Order.
(c) Post at its place of business in Fayetteville, North
Carolina, copies of the attached notice marked
"Appendix." 2 Copies of said notice on forms provided by
the Regional Director for Region 11, after being duly
signed by its representatives, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by it to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT Is HEREBY ORDERED that the complaint be dismissed to
the extent that it alleges the unlawful discharge of Leroy
Gamble on June 1, 1974.
In the event that the Board's Order is enforced by a Judgment of the to a Judgment of the United States Court of Appeals Enforcing an Order of
United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board."
Order of the National Labor Relations Board" shall read "Posted Pursuant