Forms Corp. of America

National Labor Relations Board - Board Decisions

Sep 21, 1993

312 N.L.R.B. 269 (N.L.R.B. 1993)

269
312 NLRB No. 56
FORMS CORP. OF AMERICA
1 All dates are in 1991 unless otherwise specified.
Forms Corporation of America and Local 415-S
Graphic Communications International Union,
AFL–CIO. Cases 33–CA–9369 and 33–CA–9392
September 21, 1993
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 21, 1993, Administrative Law Judge El-
bert D. Gadsen issued his decision in this proceeding.
The Respondent filed exceptions and a supporting brief
and the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has determined that the judge failed to
resolve credibility issues with respect to certain testi-
mony that is relevant to the resolution of the Respond-
ent’s exceptions.
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging em-
ployee Steve Shelton on February 27, 1991.1 The Re-
spondent excepts, however, to the judge’s rejection of
its rebuttal argument that it discharged Shelton under
its attendance policy because he had accumulated
points beyond the number warranting discharge.
The evidence shows that the Respondent uniformly
applied its attendance policy and was willing to make
adjustments in accumulated points when there was a
mistake or misunderstanding. The evidence also shows
that prior to February 18, 1991, Shelton had accumu-
lated three points pursuant to the Respondent’s attend-
ance policy. These points are not disputed.
The Respondent alleges that Shelton incurred two
points on February 18 because he was absent without
notice. Shelton testified that on February 18 he was
sick and called in on the sick line as required. He testi-
fied further that employee Dan Breen answered and
said that he would relay the message. The Respond-
ent’s witnesses, Human Resource Director Ellie
McEwen, Supervisor James DiTusa, and Plant Man-
ager William Barclay, all denied having been informed
that Shelton had telephoned on February 18. The judge
noted the conflict in testimony, the unexplained ab-
sence from the hearing of employee Breen, who was
still employed by the Respondent, and the fact that
neither DiTusa nor McEwen gave Shelton the benefit
of the doubt. He failed, however, to determine whether
or not Shelton had called in on the sick line on Feb-
ruary 18 as he testified.
The Respondent alleged that Shelton incurred one
point under the attendance policy on February 19 be-
cause he was absent with notice. The judge made
credibility findings concerning the events on this day,
and the one point is not disputed. Thereafter, until Feb-
ruary 25 Shelton incurred no further points because he
had a continuing illness and was under doctor’s orders
not to go back to work until February 25. There is no
dispute about Shelton’s record on these days.
Finally, the Respondent alleged that Shelton incurred
two points each on February 25 and 26 for being ab-
sent without notice. This gave Shelton a total of 10
points. Since seven points warrant discharge under the
attendance policy, the Respondent contends that it ter-
minated Shelton for that reason. Shelton testified that
he did not call in on February 25 and 26 because, in
a telephone conversation with Plant Manager Barclay
on February 21, Barclay told him that he need not call
in until the morning of the day that he would be re-
turning to work. Shelton called in on February 27
when he returned to work. Barclay denied giving
Shelton these instructions. He testified that he did not
call Shelton as Shelton had testified. Rather, according
to Barclay, Shelton had called him on February 21
with the message that he would be home until Mon-
day, February 25, pursuant to doctor’s orders. The
judge failed, however, to determine whether or not
Barclay had instructed Shelton that he need only call
in when he was returning to work, as Shelton had tes-
tified.
In light of the above, we shall remand this proceed-
ing to the judge to prepare a supplemental decision
containing specific findings of fact and credibiltity res-
olutions regarding Shelton’s testimony concerning his
alleged call on February 18 and his alleged conversa-
tion with Plant Manager Barclay on February 21. If
appropriate, this supplemental decision shall contain
revised conclusions of law and recommendations con-
cerning Shelton’s discharge.
ORDER
It is ordered that this proceeding is remanded to Ad-
ministrative Law Judge Elbert D. Gadsen for the lim-
ited purpose of making specific findings of fact and
credibility resolutions concerning the testimony of
Steve Shelton and the Respondent’s witnesses as to
Shelton’s alleged call on February 18 and his alleged
conversation with Plant Manager Barclay on February
21 and, if appropriate, revised conclusions of law and
recommendations concerning Shelton’s discharge,
which is alleged to have violated Section 8(a)(3) and
(1).
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision set-
ting forth the resolution of such credibility issues, find-
ings of fact, conclusions of law, and recommendations,
including a recommended Order. Copies of the supple-
mental decision shall be served on all the parties after
which the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
Will Vance, Esq., for the General Counsel.
John S. Schauer, Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of Chicago, Illinois, for the Respondent.
Susan Brannigan, Esq. (Asher, Gittler, Greenfield, Cohen &
D. Alba, Ltd.), of Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. Unfair
labor practice charges were filed on March 4 and 15, 1991,
by Local 415-S Graphic Communications International
Union, AFL–CIO (the Union or Charging Party) against
Forms Corporation of America (the Respondent). Thereafter,
on May 10, 1991, the Regional Director for Region 33 issued
an order consolidating the cases and a consolidated com-
plaint and notice of hearing.
In essence, the consolidated complaint alleges that Re-
spondent interfered with, restrained, and coerced employees
in the exercise of their Section 7 rights, by promising an em-
ployee benefits if he would withdraw his support for the
Union and support the Company’s position; that on another
occasion, Respondent promised an employee it would give
the employee more than the Union can give him if the em-
ployee would support the Company; that Respondent coer-
cively interrogated an employee concerning how many ‘‘yes
votes’’ he could change to ‘‘no votes’’; that Respondent
promised to allow an employee to serve like a steward for
the employees and present employee grievances to Respond-
ent if the Union were defeated in an election; that a super-
visor of Respondent told an employee he had passed up an
opportunity for benefits by supporting the Union, and that
Respondent wanted a certain union supporter employee out
of the plant before the next union campaign; that Respondent
told an employee it knew an employee who was still advo-
cating unionism after the election; that the said employee had
a bad attitude, and Respondent planned to get rid of employ-
ees who did not change their bad attitudes, thereby implying
surveillance of employees protected union activities and
threatening them with discharge if they did not abandon their
activities; that Respondent observed more closely and re-
stricted the movements in the plant of the known union sup-
porter; and that Respondent interrogated an employee as to
whether union activity was continuing, all in violation of
Section 8(a)(1) of the Act.
The consolidated complaint further alleged that Respond-
ent discriminatorily discharged an employee and refused to
reinstate him; that Respondent discriminatorily transferred an
employee from second to first work shift while it was fully
aware that the transfer interfered with the employee’s farm-
ing activities he carried on during the day; that Respondent
issued a warning slip to the same employee for parking off
the road near the plant; that Respondent harassed and yelled
obscenities at the same employee and gave him a written
warning for allegedly talking to a production employee with-
out having a work order, all because the employees engaged
in protected union activities, in violation of Section 8(a)(3)
of the Act.
The Respondent filed an answer on May 22, 1991, deny-
ing that it has engaged in any unfair labor practices as set
forth in the consolidated complaint.
The hearing in the above matter was held before me in
Woodstock, Illinois, on December 3 and 4, 1991, and Janu-
ary 6, 7, 8, and 9, 1992. Briefs have been received from
counsel for the General Counsel and counsel for the Re-
spondent, respectively, which have been carefully considered.
On the entire record in this case, including my observation
of the demeanor of the witnesses and my consideration of the
briefs filed by respective counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent is and has been a Dela-
ware corporation with an office and place of business in
Spring Grove, Illinois, where it is engaged in the business of
printing business forms.
During the past 12 months, a representative period, Re-
spondent sold and shipped from its Spring Grove, Illinois
plant finished products valued in excess of $50,000 directly
to points located outside the State of Illinois.
Also during the same past 12 months, Respondent, in the
course and conduct of its business operations, purchased and
caused to be transferred and delivered to its plant goods and
materials valued in excess of $50,000 which were transferred
to the plant directly from States other than the State of Illi-
nois. The complaint alleges, the Respondent admits, and I
find that the Respondent is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Local 415-S Graphic Communications International Union,
AFL–CIO (the Union) is, and has been at all times material,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Forms Corporation of America (the Respondent) is en-
gaged in the business of printing business forms at its plant
located at Spring Grove, Illinois. In this capacity Respondent,
at all times material, employed about 200 employees on 3
working shifts and a weekend shift.
William (Bill) Barclay was employed in 1985 and per-
formed in several supervisory positions, including third-shift
supervisor, before he became plant manager in December
1990, with nine supervisors reporting to him. Clyde Packer
was employed by Respondent as vice president of manufac-
turing in mid-August 1990 until October 1991, during which
period Plant Manager Barclay reported to him (Packer).
271FORMS CORP. OF AMERICA
1 The facts set forth above are not in conflict in the record.
2 Although the same sections of the Act are usually invoked, it is
not necessary that the same sections be invoked, so long as the alle-
gations are closely related in fact and they are predicated on the
same legal theory. Whitewood Maintenance Co., 292 NLRB 1159,
1169 (1989).
Ellie McEwen was employed as executive assistant to the
president in May 1987 where she occasionally helped with
personnel matters. In September 1989, she became manager
of human resources where she designed and was overseer of
personnel policies and procedures, including attendance, in-
surance, discipline, and personnel programs. McEwen also
maintains the employee guide or handbook and when advised
by supervisors of serious discipline or writeups of employ-
ees, she was sometimes involved in disciplinary meetings.
Don Fowler is plant engineering manager responsible for
machine maintenance and supervision of the maintenance de-
partment since 1983. Maintenance mechanic Paul Laswell
worked under the supervision of Don Fowler on the second
shift until he was transferred to the first shift after the union
election in February 1991.
The answer admits that the following named persons occu-
pied the positions set opposite their respective names, at var-
ious times and that they have been and are now supervisors
within the meaning of Section 2(11) of the Act:
Joe Mead — President
Clyde Packer — Vice President
James DiTusa — Press Supervisor-Second Shift
Max Rayfield — Collator Supervisor-Second Shift
Bill Barclay — Production Manager
Don Fowler — Plant Engineer
Tim Coughlin — Collator Supervisor-First Shift1
Respondent’s Motion to Dismiss
On the first day of trial (December 3, 1991) counsel for
Respondent moved to strike the allegations in paragraphs
5(a), (b), (c), (d), (e), (f), (g), (h), and (i) of the complaint
on the ground that the allegations are not supported by the
charge filed. Counsel contends that the above-identified para-
graphs contain assertions alleged to have occurred in Decem-
ber 1990 and January 1991, while the underlying charge only
alleges: that on or about February 11, 1991, Respondent en-
gaged in harassing an employee by changing his shift hours
and issuing a disciplinary writeup to him, as well as dis-
charging another employee February 11, 1991, both in retal-
iation for them engaging in union and other protected con-
certed activities.
Counsel for Respondent further argued that paragraph 5(h)
refers to matters alleged to have occurred March 25, 1991,
10 days after the charge was filed on March 25, 1991, and
therefore, paragraph 5(h) should be dismissed for the same
reason.
In support of his position, counsel for the Respondent cites
the Board’s decision in Nickles Bakery of Indiana, 296
NLRB 927 (1989). There, the charge alleged only discrimi-
natory disciplinary action taken by the Company on April 13
and September 27, 1987. The complaint alleges maintenance
of an unlawful no-solicitation rule on and after April 15,
1987; and that adding this latter allegation in the complaint
constituted an improper enlargement of the charge.
The General Counsel contended the printed language on
the bottom of the charge form also alleges that ‘‘by the
above and other acts, the company had interfered with, re-
strained and coerced employees in the exercise of their Sec-
tion 7 rights, in violation of Section 8(a)(1) of the Act.’’ He
contends that the above language includes the added 8(a)(1)
allegations in the complaint on the no-solicitation rule even
though that allegation was not set forth in the charge.
Examining its prior decisions on the subject raised by Re-
spondent’s motion, the Board concluded in Nickles Bakery of
Indiana, supra, that in determining whether a charge is suffi-
cient to support additional allegations set forth in a com-
plaint, it will examine:
(1) Whether the otherwise untimely allegations involve the
same legal theory as the allegations in the pending charge.
(2) Whether the otherwise untimely allegations arise from
the same factual circumstances or sequence of the events as
the pending timely filed charge.
(3) It may examine whether a respondent would raise simi-
lar defenses to both allegations.2
Thus, applying this test to the pleadings in the instant case,
it is noted that the untimely paragraphs 5(a), (b), (c), (d), (e),
(f), (g), (h), and (i), of the complaint, if substantiated, would
constitute conduct which interferes with, restrains, and co-
erces employees in the exercise of their protected Section 7
rights, in violation of Section 8(a)(1) of the Act; and that the
timely filed charges alleging discriminatory harassment, dis-
ciplinary writeup and discharge of employees for engaging in
union activity, would probably constitute a violation of Sec-
tion 8(a)(3) of the Act.
It is further noted that the untimely filed 8(a)(1) allega-
tions set forth in paragraphs 5(a) through (i), of the com-
plaint here, would constitute conduct of an unlawful motive
in discriminatorily harassing, disciplining, and discharging an
employee and are, therefore, sufficiently related in fact to
and arises from the same circumstances and sequence of
events as the 8(a)(3) allegations of discrimination set forth in
the timely filed charge. Under these circumstances, the
8(a)(3) allegations in the charge involve the same legal the-
ory as the 8(a)(1) allegations set forth in paragraphs 5(a)
through (i) of the complaint. Nickles Bakery of Indiana,
supra.
Moreover, in its answer, Respondent denied paragraphs
5(a) through (j) of the complaint and its motion to dismiss
was made for the first time at trial on December 3, 1991.
Consequently, Respondent had notice of the allegations and
was not surprised. All of the above-referenced paragraphs in
the complaint and the paragraph in both charges satisfy the
specificity requirement of Section 102.12 of the Board’s
Rules, because they appear to be set forth as a reasonably
‘‘clear and concise statement of facts constituting the alleged
unfair labor practice affecting commerce.’’
Respondent also argues that the Charging Party did not
raise objections to the election held January 24 and 25, 1991,
based on the allegations in paragraph 5 of the complaint. I
do not find this argument sufficient to constitute a basis to
dismiss the allegations under paragraph 5. Charging Party’s
failure to raise the essence in the paragraphs under 5 may
very well have meant that the Charging Party elected not to
take issue with them, not knowing that evidence of harass-
ment and discharge of the two union leaders would surface
after the election. Consequently, I find on the foregoing anal-
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ysis of the pleadings and the cited law that paragraphs 5(a)
through (i) of the complaint sufficiently satisfy the same fac-
tual circumstances ‘‘protected union activity’’ and ‘‘same
legal theory’’ test enunciated by the Board, and should not
be dismissed from the complaint. Accordingly, counsel for
Respondent’s motion to dismiss is denied.
B. Union Activity of Respondent’s Employees and
Actions by Respondent Thereafter
The uncontroverted testimony of maintenance mechanic
Paul Laswell, pressman Steve Shelton, and Union Represent-
ative Bob Goode established that an October 1990 meeting
was held at Andre’s Steak House for the purpose of organiz-
ing a union. Goode gave the employees union authorization
cards and union literature for distribution. While Goode and
the employees were in the steak house, they saw Respond-
ent’s vice president, Clyde Packer, enter the restaurant.
After the union meeting Laswell proceeded to solicit em-
ployees to sign a union card during the lunch hour and after
work. He submitted 30–40 signed union cards to the Union.
Laswell also distributed union literature, wore a union but-
ton, attached a union bumper sticker to his toolbox in the
plant, and served as an observer for the Union during the
election January 24 and 25, 1991.
Paul Laswell, Steve Shelton, and Rick Schwede served on
the inplant Union’s organizing committee and the Respond-
ent was apprised of this fact in a letter from the Union (Bob
Goode).
Shelton also wore a union button in the plant and he au-
thored one and co-authored another open letter discussing
employee benefits and urging unionization. The letters (G.C.
Exhs. 2 and 3) were distributed to all employees and posted
on the employees’ bulletin board. Shelton also had a union
sign on his toolbox indicating ‘‘vote yes.’’
During the first week in December 1990, Vice President
Clyde Packer called Laswell to a meeting in his (Packer’s)
office. Present were Company President Joe Mead and
Laswell’s supervisor, Don Fowler. Laswell testified that dur-
ing the meeting Joe Mead said, ‘‘I understand you are pass-
ing out blue cards’’ (meaning union authorization cards). He
(Laswell) replied, ‘‘yes,’’ and Mead said, ‘‘[Y]ou know you
cannot pass them out in the production area, you can pass
them out before work, in the lunch room or at the employees
entrance.’’ Laswell responded, ‘‘[Y]es, I know that,’’ be-
cause Union President Bob Goode had already so instructed
them. The evidence failed to show Laswell was distributing
union literature anywhere other than the proper places indi-
cated by Mead.
Laswell further testified that about a week after the meet-
ing with Mead and Packer, Printing Supervisor James DiTusa
started pushing his (Laswell’s) toolbox with the union lit-
erature on it into the maintenance cage. Laswell said he told
DiTusa to leave his toolbox alone, that he was on his way
to another job. DiTusa continued to push the toolbox and he
told DiTusa to go talk to Clyde Packer to save one of their
butts. Later that afternoon, DiTusa’s supervisor, Bill Barclay,
called him (Laswell) into the office where DiTusa was
present. Barclay told him he (Laswell) could leave the lit-
erature on his toolbox but not pass it out when on the job.
Laswell said he denied he had distributed literature on the
job. At that juncture, Clyde Packer walked in, sat down,
leaned back in his chair and said ‘‘what would it take for
you (Laswell) to come over to our side Paul,’’ and he replied
‘‘nothing.’’ Packer kind of chuckled. However Packer denied
he asked Laswell what would it take for him to come over
to the Company’s side and Manager Barclay corroborated his
denial.
In September 1990, Laswell spoke to Clyde Packer and
Don Fowler about getting additional schooling in electronics.
He said they told him yes, but after he talked to Bob Goode
of the Union, neither Packer nor Fowler would talk to him
about it. (See R. Exh. 4, Mar. 26, 1991.)
In any event, irrespective of minor variations in their testi-
monial accounts, the evidence is clear that not long after the
first union meeting was held that both Laswell and Shelton
were openly supporting the Union, and management admit-
tedly knew about their union activity.
Laswell’s Inplant Movements Restricted and his Work
on Machines Monitored
Paul Laswell testified that prior to the union activity of the
employees, if he wanted to work on a particular machine, to
do maintenance work, he would simply ask the supervisor
because the machines would have to be shut down. If the su-
pervisor said yes, as they generally did, he would then per-
form the work on the machine. After the commencement of
union activity, he noticed Supervisors Jim DiTusa and Max
Rayfield would watch and follow him most of the time when
he performed work on the machines. He had performed work
on the machines most of the time without filling out a work
order as was the procedure. No one had ever complained to
him about making minor repairs on a machine at the request
of an employee.
Laswell further testified that in December 1990, after the
onset of union organizing activity and his discussions about
the Union with management, Supervisor Fowler approached
him near the washroom and asked him to come to his office
where he asked him (Laswell) if he had just told someone
to vote yes for the Union. Laswell replied, ‘‘[N]o, I had
not.’’ He asked Fowler who said he did and Fowler would
not tell him. About 12 o’clock on the same day, he was talk-
ing to Dan Smyth, collator operator, about his gearbox,
which had a defective bearing. Supervisor Tim Coughlin, ap-
proached him and asked him ‘‘what the hell was he doing.’’
He replied he was talking to Smyth about his gearbox and
Coughlin said, ‘‘you’re full of shit,’’ if you don’t have a
work order you get out of here and I don’t want you on my
machines unless you have a work order—I don’t want you
talking to my people. Laswell went back to the maintenance
department.
Collator Smyth testified without dispute that the employ-
ees occasionally stopped at his machine and talked for a few
minutes. He said he did not hear Supervisor Fowler tell
Laswell he was ‘‘full of shit,’’ adding, that the noisy ma-
chines were operating at the time. I credit Smyth’s
uncontroverted testimony not only because I was persuaded
by his demeanor that he was telling the truth, but also be-
cause common experience supports the fact that employees
in nearly any comparable work setting will occasionally stop
at another employees’ work station and chat for a few min-
utes.
Shortly after the above incident, Laswell saw Coughlin in
the office talking to Supervisor Fowler. He went into the of-
fice to discuss the matter. Fowler told him not to perform
273FORMS CORP. OF AMERICA
work on any machine unless he had a work order. A little
later, Fowler gave him a memo (G.C. Exh. 5), instructing
him not to talk to anybody in the production area unless he
is sent to work on a machine with a maintenance request
form.
Laswell said he had never been written up for talking to
production employees about problems about their machine.
He asked Supervisor Fowler was he going to give the other
maintenance employees a similar memo also, and he said no,
he would just tell them about it. Fowler testified he did ver-
bally give the same instruction to other employees. Laswell
said other employees did not get such a memo. A few days
later Laswell told his fellow maintenance workers about the
memo he had been given by Fowler, and Jerry Burns, Jerry
Adams, and Tom Pembrook told him it was ridiculous.
Fowler did not establish he in fact did give other employees
the same instructions he gave Laswell in the memo.
Also in December 1990, Laswell said Supervisor Fowler
told him to cover his butt and not go into the front offices
unless he informed Supervisors DiTusa and Rayfield, so they
could accompany him. Fowler did not deny he so instructed
Laswell. Vice President Packer said he had instructed all su-
pervisors not to permit employees in the front office unless
they accompanied them. However, it was not established that
Packer or other persons of management had instructed other
employees not to go into the front offices.
Laswell further testified that during the Christmas party on
December 15, 1990, while talking with Supervisor Fowler
and other employees, Packer told him I understand that you
do farming and he replied, ‘‘yes.’’ Packer asked him what
did he grow and he replied that is why he liked working the
second shift because he could work full time at the Respond-
ent and continue farming.
Interrogation of Laswell
On or about January 15, 1991, Laswell said Vice President
Packer called him to the office and asked him did the union
vote win. He said he replied, ‘‘no, I don’t think so.’’ Packer
said yes they did, and he replied, no. Packer then asked him
why do you want a union in here and he responded, ‘‘it’s
just not me, almost everybody in the plant wants the union.’’
Packer asked why, and he told him the employees would like
to have better benefits, better medical and dental benefits.
Packer said that’s not what your supervisor said, he said the
employees were looking for a big raise. Laswell said he de-
nied the employees were wanting a big raise. Packer told
him the employees did not need a union here and that he
could be like a steward for the employees without a union
and talk to him (Packer). He told Packer that is what he was
doing now but it was not doing any good. The conversation
between Laswell and Packer continued with respect to what
Laswell said the employees wanted and what management
could give them.
According to Vice President Packer’s version of the De-
cember 19, 1990 conversations with Laswell, the latter came
to his office and asked to talk with him. He said ‘‘yes,’’ and
Laswell came to his office, and said ‘‘off the record, between
you and me,’’ he was tired and had concerns about the union
drive; that Laswell asked him was there any way he could
get out of the union drive, that he was in a long way and
did not know if he could change what had transpired, or if
anything could be changed—or what would happen to him.
He repeatedly asked what would happen to him. Packer said
he told Laswell to talk to Ellie McEwen and Joe Mead be-
cause he did not know what Laswell wanted to do.
Within a couple of days Packer said Laswell asked to talk
to him again, and he said ‘‘yes.’’ Laswell came to the office
and told him he had done a lot of thinking about the subject
of their last conversation; that he would really like to see this
thing come to an end, be put off, because he had previously
said he did not feel well and was concerned about his wife,
who wanted him to pursue the union drive. He was going
to talk to her over the weekend about it. Laswell denied he
ever talked about calling off the union campaign and said it
was Packer who called him into his office and initiated con-
versations with him about the Union.
Packer further testified that the following Monday, Laswell
asked to talk to him and he said ‘‘yes.’’ Laswell told him
he was not going through with calling the Union; that he was
in so deep that he was committed. Packer said he made no
response. Laswell denied he ever told Packer he was sorry
he got involved or that he wanted to abandon the union ef-
fort.
Packer admitted he had told supervisors in a meeting that
Tuesday, that an employee (Laswell) was possibly going to
defect from the Union. He denied he ever said anything to
Laswell about being a steward or serving like a steward for
the employees; and that it was Laswell who talked about im-
proving working conditions and benefits, and he told Laswell
he gave his word but he was not president of the Company.
He suggested Laswell talk to President Joe Mead and
Laswell said Joe was not good enough, he wanted to go
higher, like to the owner, David Chandler. Thereafter, Packer
said he set up a meeting with Chandler for Laswell, but later
Laswell said he had to cancel the meeting.
Laswell denied he canceled the meeting with Chandler but
rather, said Packer told him the meeting was off. When he
asked why, Packer sort of shrugged his shoulders. Packer ad-
mitted he asked Laswell could he influence the union vote
because in that way he told Laswell he could influence the
employees that they don’t need a union. He also acknowl-
edged he told Laswell Respondent could do more for the em-
ployees than the Union could do; that having a union does
not mean employees would have a retirement plan because
that would have to be negotiated; and the same would be
true of seniority rights. He denied he promised Laswell any
benefits but admitted he told him if he stopped the union
drive it would help his credibility with management.
Laswell further testified that on January 23, the day before
the first voting of the union election, Vice President Packer
was wearing a vote-no union button and Laswell was wear-
ing a vote-yes button. As they passed one another Packer
pointed to his vote-no button and said we’ve got the vote
won. Laswell said no, I don’t think so, and Packer said ‘‘you
passed up a hell of an opportunity for yourself.’’ Laswell
said he replied, ‘‘that may be true, but that’s the way it is.’’
Packer denied he told Laswell he passed up ‘‘a hell of an
opportunity for benefits.’’ The union election was held on
January 24 and 25, 1991, and the Union was defeated.
Plant’s Parking Lot
Respondent provided free parking for its employees on a
lot adjacent to the front of the building but it was inadequate
to accommodate all of the work shifts’ parking as they
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
changed shifts. Consequently employees frequently parked in
the shipping–grassy area where Laswell also parked.
Laswell drove a 1-ton four-door Dooley pickup truck
which would not fit into the regular parking spaces. On Feb-
ruary 8, 1991, Supervisor Fowler told Laswell not to park his
truck in the shipping area. Laswell replied there were no
parking spaces and that President Joe Mead told the employ-
ees at the advisory board meeting that they could park in the
grassy area if there were no other parking spaces. Laswell
said if he did not park in the restricted area there wasn’t any
place for him to park and the employees would have to go
home. Fowler ordered him not to park there and Laswell said
‘‘Okay.’’
During the latter part of February 1991 Supervisor Fowler
asked Laswell why was he parked in the shipping area be-
cause Clyde Packer had asked him why was he parked there.
Laswell said because there were no spaces, although he said
three or four other cars were also parked there. The follow-
ing day Supervisor Fowler gave him a writeup even though
he was not parked in the shipping area but in a designated
parking space.
On March 6, 1991, Supervisor Fowler gave Laswell a dis-
ciplinary warning (G.C. Exh. 4) for parking in the shipping
area on March 5. Laswell said the following 2 days he saw
other employees (Lucy Heide and Darlene) parked in the
shipping area. He said he does not know any other employ-
ees who received a warning for parking in the shipping area,
and there were no ‘‘no-parking’’ signs in the shipping area.
After the writeup, Supervisor Fowler asked Laswell on one
occasion to move his truck in between the lines and Laswell
told him the truck was too large. Thereafter, Laswell said he
came in early, sat around until the shift changed, and parked
in the parking lot. He said he never parked in the restricted
area after March 6, 1991.
The essentially uncontroverted and credited evidence of
record established that in late March, President Packer ap-
proached Laswell while he was wearing a button which read
‘‘It’s Not My Fault,’’ Packer asked Laswell ‘‘If its not you
fault, whose is it.’’ Laswell explained that when employees
told him he should not be talking about the Union since the
Union had lost the election, he would simply point to the
button. Packer told him he had a bad attitude because he was
still angry about the Union losing the election. Laswell re-
plied, he did not have a bad attitude, but said if he had one,
it was because management was harassing him about every-
thing.
Laswell’s Discussions with Management About a
Voluntary Layoff
Packer acknowledged he told Laswell he (Packer) knew he
(Laswell) was still vocally advocating unionism, that Laswell
had a bad attitude, and that he planned to get rid of employ-
ees who did not change their attitude. Laswell asked Packer
whether he had told Supervisor DiTusa that he (Laswell) was
going to be out before the Union came back. Packer re-
sponded, ‘‘if you don’t do your work, I will let you go.’’
Packer acknowledged he told other supervisors on the date
of the election that Laswell would not be around for another
election. Laswell said Supervisor Dan Blair had told him
about Packer’s statement.
Packer testified that in late March Laswell asked him was
he going to be terminated and he told him as long as you
perform your job and not violate the attendance policy you
should not be terminated.
Laswell testified that in late April or early May 1991, hav-
ing weathered much harassment by management, he met with
Packer alone to try to obtain a voluntary layoff. During their
meeting Packer revived his discussions about advantageous
opportunity for Laswell during the union campaign to influ-
ence him to persuade others to vote against the Union.
Laswell said he told Packer if he still had anything to offer
him, he was willing to make a deal. He would take a vol-
untary layoff and in that way he would not be in Respond-
ent’s employ next January. Packer told him he could drop
the NLRB charge then pending against Respondent. When he
(Laswell) said he would have to check with the NLRB about
dropping the charge, Packer gave him the telephone number
for the Board agent investigating the charge, and told him to
use the telephone in the next room. Laswell made the call
but said the agent was not available. Thereafter, the meeting
ended.
Laswell further testified that he met again with Packer in
May to discuss the same concern, but this time, Personnel
Manager McEwen was present. He expressed his concern
about her presence but Packer said he told Laswell it was al-
right for her to remain. Laswell said he then told Packer if
he was given a voluntary layoff he did not want Respondent
to challenge his claim for unemployment compensation be-
cause he wanted to have something coming in until he ob-
tained another job. A day or two later Laswell said he dis-
cussed the matter with the Union’s attorney and no agree-
ment was made between himself and Packer regarding a vol-
untary layoff. In late May 1991, Laswell went on sick leave
where he remained until he quit August 2, 1991, out of ex-
haustion from harassment by management, he said.
According to Packer’s account of the layoff conversations,
Laswell asked to speak with him and he said, yes. When
Laswell arrived to his office, Ellie McEwen was present and
Laswell did not want to talk with her present. He told
Laswell, McEwen was the Company’s personnel officer. Fi-
nally, Laswell asked for a voluntary layoff and said he would
drop the charges filed with the National Labor Relations
Board. He told Laswell ‘‘yes,’’ but asked him to put his re-
quest in writing. Laswell said he had to talk with the Board’s
investigator, Judy Davis, but later said he was unable to con-
tact her or counsel for the Union. Laswell also told him, with
emphasis, in McEwen’s presence, that in no way could
Union Representative Goode or the Union ever learn about
his meeting with them, or that he was contemplating submit-
ting a written request for voluntary layoff, because he had
concerns about what the Union might do to hurt him. He
said, while looking directly at him (Packer), he would hurt
someone else. Finally, Laswell said he had to talk this over
with his wife. Packer’s testimonial account in this regard is
only partially corroborated by Ellie McEwen and me re-
ceived the impression that McEwen was more or less acqui-
escing in Packer’s version of the conversation. I was not per-
suaded she was testifying freely as though she had witnessed
the entire conversation with Laswell.
On rebuttal examination, Laswell essentially denied Packer
and McEwen’s version of the conversations about dropping
charges against Respondent and his concern about the Union
attributed to him by Packer, and McEwen tacitly agreeing.
275FORMS CORP. OF AMERICA
Laswell also admitted that in early May 1991 he told Ellie
McEwen and Clyde Packer if the Respondent would approve
a voluntary layoff and approve his unemployment compensa-
tion, he would take it, because he was tired of being har-
assed. He denied he conditioned his acceptance of a layoff
on withdrawing his charge with the National Labor Relations
Board.
Laswell admitted he voluntarily went in to talk to Packer
on two occasions when the Union was discussed but on all
other occasions, he said Packer called him into the office and
talked about the Union.
Laswell admits he could have been the one to raise the
subject of the Union after Packer asked him, if it is not your
fault whose is it.
Analysis and Conclusions
The record is replete with highly conflicting testimony
about various conversations concerning Laswell’s and other
employees’ union organizing activities, which took place on
several occasions between Paul Laswell and Vice President
Clyde Packer, and to a lesser extent between Laswell and
other members of management as follows: Joe Mead, Bill
Barclay, Don Fowler, James DiTusa, and Max Rayfield. All
of the subject conversations occurred after the commence-
ment of the employees’ union organizing activities in early
October 1990, and continued up to and through the union
election on January 24 and 25, 1991.
It is particularly noted that regardless who was in fact tes-
tifying truthfully, Laswell or members of management, it is
uncontroverted and clear, that primarily Company President
Clyde Packer, sometimes initiated and freely engaged in con-
versations with Laswell about his and other employees sup-
port for the Union. The record does not show that Packer or
other members of management ever gave Laswell any assur-
ances against reprisal for their often initiated free and open
discussions with him about unionization.
Although each side (Laswell and management) accuses the
other of initiating the subject conversations, I find upon the
demeanor of the witnesses as well as the total evidence of
record that some conversations were initiated by Laswell and
some by management. Notwithstanding, the conflicting ac-
counts of the parties (Laswell and Packer or other members
of management) as to who said what during those conversa-
tions, the evidence is uncontroverted that Paul Laswell and
Steve Shelton were notoriously open supporters of the Union.
Respondent (members of management) was fully knowledge-
able about their leadership role in support of the Union. The
evidence is also essentially uncontroverted that prior to the
onset of union activity, Laswell moved about the plant re-
pairing and maintaining the machines, sometimes with or
without permission from supervisors or a work order to work
on the machines, and without supervision or close scrutiny
of his performance by management.
Moreover, the credited evidence clearly demonstrates that
Laswell has worked for Respondent as a maintenance me-
chanic since September 1987. The evidence shows that it
was not until after Laswell’s union organizing activities were
in progress during October, November, and December 1990,
and January 1991 and thereafter, that Second-Shift Super-
visors James DiTusa and Max Rayfield proceeded to accom-
pany or follow and closely observe him as he moved about
the plant performing his job. In December, without any stat-
ed reasons, plant engineer Don Fowler ordered Laswell not
to go into the area of the front offices unless he informed
Supervisors DiTusa or Rayfield, so that they could accom-
pany him.
In view of Laswell’s open and notorious union organizing
activities of which Respondent was not only fully aware, but
also manifested a participating conversational interest with
him, I find that Respondent’s change in practice to restrict
Laswell’s free movements from the front office area, and the
new practice of supervisors following or accompanying and
monitoring his movements as he performed his work, tended
to create the impression that his and other employees’ union
activities were under surveillance by Respondent. I find that
Respondent’s conduct had a coercive and restraining effect
on the exercise of employees’ organizing rights, in violation
of Section 8(a)(1) of the Act. Gencorp, 294 NLRB 717, 731–
732 (1989).
Additionally, since the timing of Respondent’s restriction,
close monitoring, and surveillance activities did not com-
mence until only a few weeks after the onset of Laswell’s
open union organizing activities, I find that it may be reason-
ably inferred from such circumstances that Respondent’s
conduct was unlawfully motivated. Aluminum Technical
Extrusions, 276 NLRB 1414, 1418 (1985); Limpert Bros.,
276 NLRB 364, 374 (1985).
The evidence is uncontroverted, it is clear, and consistent
with Laswell’s account that in December 1990, he was called
into a meeting with President Joe Mead, Manager Clyde
Packer, and Supervisor Don Fowler, where Mead, without
any discernable reason, asked Laswell about his distribution
of union authorization cards, instructed him where and when
he could distribute them; and that Supervisor Jim DiTusa ap-
proached Laswell and instructed him not to display union lit-
erature on his toolbox. When Laswell protested removing the
literature, he was called to a meeting in Manager Barclay’s
office where Barclay told him he could keep the literature on
his toolbox but he could not distribute union literature on the
job. It was not established by the evidence that Laswell had
improperly distributed union literature on the job.
Laswell testified that eventually President Clyde Packer
entered the meeting and asked him what it would take for
him to come over to the Company’s side. I credit Laswell’s
account not only because I was persuaded by his demeanor
that he was testifying truthfully, but also because his account
is consistent with the credited evidence of record of Re-
spondent’s persistent inquiries of Laswell about the union
and its antiunion conduct prior and subsequent to December
1990, infra.
I further find that Respondent’s established surveillance of
Laswell’s and other employees’ union activities does not
lend credence to Packer’s weakly controverted testimonial
account of his conversations with Laswell. I therefore further
credit Laswell’s account of those heretofore described con-
versations with Packer and other members of management.
I also credit Laswell’s account because I was especially per-
suaded by the demeanor of President Packer in this proceed-
ing, that he was not testifying truthfully but that he appeared
for the purpose of testifying in favor of management, in an
effort to justify management’s unlawful conduct as found in
this decision. Aside from the abundance of circumstantial
evidence in the record supporting this conclusion, I could not
have been more persuaded by the demeanor of a witness that
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he or she was not telling the truth, than I was by the de-
meanor of Vice President Packer.
Having credited Laswell’s testimonial account over the
testimonial accounts of Packer and McEwen in this regard,
I further find that Vice President Packer’s question of
Laswell as to what it would take for him to come over to
the Company’s side, asking him whether he thought he could
get rid of the Union, telling him he could get rid of the
Union by simply calling the union organizer, Bob Goode,
telling him he could serve like a steward for the employees
without a union at the facility, and asking him whether he
could sway some yes votes to no votes, clearly constituted
an implied promise of benefits to him if he would abandon
the union effort and solicit support for the Respondent
against unionization. Marshalltown Trowels Co., 293 NLRB
693, 697 (1989); Central Washington Hospital, 279 NLRB
60, 63–64 (1986); McCarthy Processors, 292 NLRB 359,
367 (1989); General Motors Corp., 234 NLRB 995, 996
(1978). A.J.R. Coating Division Corp., 292 NLRB 148, 162–
163 (1988).
As such, Packer’s conduct had or tended to have a coer-
cive and restraining effect on the employees’ organizing
rights, in violation of Section 8(a)(1) of the Act. A.J.R. Coat-
ing Division Corp., supra at 162–163.
Additionally, Vice President Packer’s asking Laswell
whether he could get rid of the Union, whether he could
change yes votes to no votes or whether he could help get
the Union out, without giving him any assurances against re-
prisal by Respondent, also constituted coercive interrogation
of Laswell regarding his union sentiments and the union sen-
timents of other employees. When Laswell finally told Pack-
er he would not abandon the Union or help to change yes
votes to no votes, Packer told Laswell he had passed up one
hell of an opportunity for himself. Implicit in the latter re-
mark by Packer to Laswell, under the total circumstances in
this record, clearly implied a threat that Laswell would not
be rewarded with benefits in the future because of his sup-
port for the Union. It also made evident that Packer’s prior
questions of Laswell were implied promises of benefit to him
if he would abandon the Union and support Respondent’s op-
position. I therefore find that such threats had or tended to
have a coercive and restraining effect on the exercise of em-
ployees organizing rights, in violation of Section 8(a)(1) of
the Act. Phillips Industries, 295 NLRB 717 (1989).
Threat of Discharge
The record further shows that Daniel Blair, a supervisor
employed by Respondent from December 18, 1989, until
September 6, 1991, testified that shortly after the union elec-
tion votes were counted, he went into the production office
where Supervisor DiTusa was present. DiTusa told him Vice
President Packer told him he (Packer) saw Laswell and the
union president shake hands after the vote count, and the
union president told Laswell he would be back next year.
Blair said DiTusa told him Packer turned to him (DiTusa)
and told him that Paul Laswell would not work there next
year. In testifying, DiTusa admitted he told Blair in January
1991 that Laswell would not be there for another union elec-
tion. Likewise, Vice President Packer admitted he told other
supervisors after the vote count that Laswell would not be
around for another union election. He said he told super-
visors that because Laswell had told him how tired he was
and that he did not feel well. However, a conclusion that
Laswell was going to quit does not logically follow from the
fact that he said he was tired and did not feel well.
Consequently, under the specific circumstances here, and
the total credited evidence in this record, I discredit Packer’s
latter explanation for his statements to Blair and other super-
visors. It is clear from the evidence that he did not want
Laswell in Respondent’s employ to enable him to have an-
other opportunity to try to organize Respondent’s employees.
Since Blair’s testimony is essentially substantiated by the
testimony of DiTusa and Vice President Packer, I credit
Blair’s account because I was also persuaded by his de-
meanor that he was testifying truthfully and Packer was not.
Consequently, I find that Supervisor Blair told employee
Laswell that Packer told supervisors he (Laswell) would not
be in Respondent’s employ for the next election, and that
such a statement from a supervisor under the circumstances
constituted a threat to terminate Laswell’s employment be-
fore another election could be held a year later. It is clear
from the record evidence supra and infra that such threat to
discharge Laswell was motivated by his open and notorious
support for the Union, and his manifested intentions to con-
tinue his organizing effort next year, of which fact the evi-
dence shows Respondent (Packer) was fully aware. Under
these circumstances the threat of Laswell’s discharge had or
tended to have a coercive and restraining effect on the exer-
cise of employees’ Section 7 rights, and was violative of
Section 8(a)(1) of the Act. Gencorp, supra.
According to Laswell, near mid-March 1991 Supervisor
Don Fowler asked him whether he had just talked to some-
body or told someone to vote yes for the Union. Laswell said
‘‘no’’ and asked Fowler who told him he had such a con-
versation but Fowler refused to tell him. The credited evi-
dence of record shows that after the Union lost the election
on January 25, 1991, Laswell told disgruntled employees
they would have another chance for unionization in a year
and they could look forward to making another effort to or-
ganize next year.
Since Supervisor Fowler asked Laswell whether he was
talking about the Union after the union election, and since
Packer saw Laswell shake hands with the union representa-
tive and heard the latter tell Laswell he will be back next
year, Respondent knew or had good reasons to believe
Laswell would not abandon his efforts to unionize the Re-
spondent in the future. Consequently, I find that Supervisor
Fowler’s question of Laswell about talking to employees
about the Union was coercive interrogation, and had or tend-
ed to have a coercive and restraining effect on employees’
organizing rights, in violation of Section 8(a)(1) of the Act.
Great Dane Trailers, 293 NLRB 384, 384 (1989), Rossmore
House, 269 NLRB 1176 (1984).
The evidence shows that near mid-March 1991, while
passing by Supervisor Don Fowler, Fowler noticed Laswell
was wearing a button which read ‘‘It’s not my fault.’’
Fowler asked him ‘‘If it’s not your fault, whose is it?’’
Laswell said he told Fowler that a number of people had ap-
proached him and told him there had already been a ‘‘no
vote’’ and he should not start talking about the Union. He
said he responded to them by pointing at his button. Fowler
told him he had a bad attitude and was still angry because
the Union lost the election. Laswell told Fowler he did not
have a bad attitude, but if he did have one, it was because
277FORMS CORP. OF AMERICA
Respondent’s management kept harassing him about every-
thing.
Fowler admitted he told Laswell he had a bad attitude, and
that he planned to get rid of employees who did not get rid
of their bad attitude. Since the evidence fails to provide any
reason for Packer telling Laswell he had a bad attitude other
than Laswell’s past and continued support for the Union, I
find that it may be reasonably inferred from Packer’s bad at-
titude statement that it had reference to Laswell’s continued
effort to unionize Respondent.
Consequently, I further find that Packer’s statements con-
stituted a threat to discharge Laswell for his continued (bad
attitude) support of the Union, in violation of Section 8(a)(1)
of the Act. Gencorp, supra.
Transfer of Laswell
A determination of the substantiality of the allegations
with which the Respondent is charged and the corresponding
denials or affirmative defenses asserted by it in response
thereto depended, in large part, on a determination of the ve-
racity of the several witnesses for the respective parties,
which is highly conflicting. Although it is often difficult to
resolve such vexed questions of fact to which only the indi-
vidual parties bear witness, I have nonetheless resolved such
questions, not only by observing the demeanor of witnesses
on the stand, but also by considering the relationship of each
witness to the party on whose behalf he or she testified (fel-
low employee, fellow managerial or supervisory personnel,
whether formally or currently employed by Respondent, rea-
sons for separation from employment), how readily respon-
sive, nonselective, nonexaggerating, consistent and straight-
forward the manner in which testimony was given, as well
as efforts or failure of the parties to produce witnesses who
were in a position to deny or corroborate their respective ver-
sions, and how such testimony or other evidence relates to
the logical consistency of the total record evidence and se-
quence of events as they transpired.
Alleged Discrimination Against Paul Laswell and Steve
Shelton by Respondent
The complaint alleges that Respondent discriminated
against Paul Laswell in the following ways:
(a) By transferring him from second shift to first work
shift on February 18, 1991.
(b) By issuing him a warning slip for parking off the road
near the plant on March 7, 1991.
(c) By harassing and yelling obscenities at him on March
12, 1991.
(d) By issuing him a written memo on March 12, 1991,
ordering him not to talk to a production employee.
The complaint further alleges that Respondent discrimi-
nated against Steve Shelton in the following ways:
(e) By discharging him on February 27, 1991.
(f) By, at all time since February 27, 1991, refusing to re-
instate him to his former position, and that Respondent so
discriminated against both Paul Laswell and Steve Shelton
because they engaged in, and manifested intentions to con-
tinue to engage in protected concerted union activities, in
violation of Section 8(a)(3) of the Act.
Respondent denied it has so discriminated against Laswell
and Shelton because they engaged in and indicated they
would continue to engage in protected concerted union ac-
tivities, and it affirmatively contended at the trial that
Laswell was transferred from second shift to first shift for
business reasons, and that Shelton was discharged pursuant
to Respondent’s absence call-in policy.
Since the Respondent contends Laswell was transferred for
business reasons and issued a warning slip, a memo, and a
disciplinary warning to him for cause, and that Shelton was
discharged for cause, and not for their protected concerted or
union activities, the issues raised by Respondent’s defense
call for consideration of the Wright Line doctrine enunciated
by the Board in Wright Line, 251 NLRB 1083 (1980). There,
the Board held ‘‘that in such 8(a)(3) cases, the General
Counsel must first make a prima facie showing sufficient to
support the inference that protected concerted conduct was a
‘motivating factor’ in the employer’s decision and once this
is established, the burden will shift to the employer to dem-
onstrate that the same action would have taken place even
in the absence of the employees’ protected conduct.’’
Thus, the first question raised under the Wright Line doc-
trine here is whether the General Counsel has made a prima
facie showing that Respondent’s alleged discriminatory ac-
tion against Laswell and Shelton would have taken place
even if Laswell and Shelton were not engaged in protected
concerted or union activities.
With respect to Paul Laswell, the following must be borne
in mind as hereinbefore found, that Respondent:
(1) Coercively and unlawfully interrogated him on several
occasions about his leadership role in attempting to organize
a union.
(2) That management clearly gave him the impression that
his union organizing activities were under surveillance by
Respondent.
(3) That after the onset of union activities, his in-plant
movements were restricted, and he was more closely ob-
served and monitored by management as he performed his
job.
(4) That management (Packer) promised him benefits if he
would abandon his efforts to unionize the Respondent.
(5) That management initiated several conversations with
him in which it interrogated him about his union interest and
activities and that of other employees, without giving him
any assurances against reprisal by management for engaging
in such activities.
(6) That management threatened him with loss of future
benefits by telling him he passed up a wonderful opportunity
by not abandoning his union support and supporting Re-
spondent’s position.
(7) That management threatened to terminate his employ-
ment by telling him he had a bad attitude and it was going
to get rid of employees who did not change their bad attitude
(abandon their support for the Union).
(8) Management (Blair and Packer) threatened to terminate
his employment before another union campaign and election
could be held.
Transferred
In addition to Respondent’s above-described unlawful
antiunion actions in response to Laswell’s union activity, the
uncontroverted evidence shows that on February 15, 1991,
only 3 weeks after the union election on February 24 and 25,
Respondent abruptly transferred Laswell from the second
shift to the first work shift. When Laswell was first being
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
considered for employment he expressed his preference for
the second shift to Supervisor Don Fowler because he oper-
ated a farm during the other daylight hours. He was hired in
an open position on the second shift in September 1987. The
evidence further shows that Supervisor Fowler confirmed his
knowledge of Laswell’s daytime farming operation when he
undeniably and, probably tactfully, asked Laswell about his
farming operation in late December 1990, only a couple of
weeks before his transfer in January 1991.
When Laswell asked Supervisor Fowler why was he trans-
ferred to the first shift he was told because Vice President
Clyde Packer wanted that way. When Laswell asked Packer
why was he transferred Packer told him that was between
Supervisors Don Fowler and Jerry Maynard, Fowler’s super-
visor. Both Fowler and Maynard worked under the super-
vision of Clyde Packer. When Laswell asked Supervisor
Maynard why was he transferred, he was given a third rea-
son for his transfer. Maynard told him his transfer was tem-
porary, for a short time, because the employees in the main-
tenance department were not working together, and he want-
ed each worker to learn to work with everybody. Maynard
said he was going to make other changes in work shifts but
the record does not show that other work shift changes were
made at that time. Moreover, 2 weeks after Laswell’s trans-
fer, Supervisor Fowler told him his transfer was permanent
and Laswell remained on the second for the duration of his
employment with Respondent.
Notwithstanding, while testifying during the trial here, Su-
pervisor Don Fowler for the first time gave a fourth reason
for Laswell’s transfer. He stated that Laswell was transferred
from second to first work shift because the workload on the
first shift needed help which did not require electrical skills.
He said he was having a lot of electrical problems (unidenti-
fied) on second shift which required someone with electrical
skills. Therefore, he hired a former employee, Jerry Burns,
who had such electrical skills. He denied Laswell’s union ac-
tivity had anything to do with Respondent’s shift transfer of
him.
In evaluating Respondent’s conduct with respect to
Laswell, it is particularly noted that the record shows that
Laswell’s tenure in Respondent’s employ from September
1987 to November 1990 was essentially uneventful. Union
activity of Laswell and other employees commenced in Octo-
ber 1990. It was not until December 1990, only 4 to 5 weeks
before the union election on January 24 and 25, 1991, when
Laswell apparently became a problem for Respondent. It was
during this period when most of Respondent’s unlawful
8(a)(1) conduct, involving Laswell, occurred.
The record shows without contradiction, that efforts by
Respondent to intimidate Laswell by making him conscious
that Respondent knew about his organizing efforts, restrict-
ing, closely observing and monitoring his in-plant move-
ments, promising him benefits, interrogating him and threat-
ening him, were not successful during December and early
January. the Union lost the election on January 25, 1991, and
Respondent (Packer) learned on that day that another union
effort would be made by Laswell and the union representa-
tive a year later. Respondent further learned that Laswell was
still committed to organizing the Union a year later, so it de-
cided to turn up the heat, by issuing a warning slip to him
for parking his truck near the plant (where other employees
also parked), making his work schedule inconvenient with
his farming schedule, by transferring him from second to
first shift, and issuing a written warning to him for talking
to a fellow employee without a work order.
It is also noted that Laswell was transferred from second
to first shift by Supervisor Don Fowler only 3 weeks after
the election, while he knew that Laswell preferred to work
the second shift so that he could continue to work his farm.
Respondent has known since Laswell was employed, that
Laswell wanted to work the second shift so he could con-
tinue his farming.
Considering all the credited evidence of record most favor-
able to Respondent, I am persuaded, and I find that the Gen-
eral Counsel has made a prima facie showing sufficient to
support an inference that Laswell’s past and contemplated
continued protected conduct was a motivating factor for Re-
spondent’s actions in issuing him warnings and transferring
him from second to first shift.
The General Counsel having made the required prima
facie showing that a motivating factor for Respondent’s
harassing and unlawful conduct against Laswell was his pro-
tected past and continued concerted and union activity, the
burden now shifts to the Respondent to demonstrate by a
preponderance of evidence, that the same actions would have
taken place even in the absence of Laswell’s protected con-
duct. Wright Line, supra.
The Respondent is asking me to believe that it’s transfer
of Laswell from second to first shift was for business reasons
and its warnings to him were for cause.
However, it is clear from the record evidence in this case
that the Respondent undeniably gave Laswell three different
reasons for transferring him. Supervisor Fowler told him he
was transferred because Clyde Packer wanted it that way.
Vice President Packer told him his transfer was determined
by Supervisors Fowler and Maynard, who work under his su-
pervision. Supervisor Maynard told him his transfer was tem-
porary, to help with the workload on first shift, and to allow
other employees to work with everybody. However, Super-
visor Don Fowler later told Laswell his transfer was perma-
nent.
At the trial here, Supervisor Don Fowler testified that
Laswell was transferred to help with the workload which did
not require electrical skills; and because electrical problems
on the second shift required someone with electrical skills.
Supervisor Fowler’s testimony is not corroborated in this re-
gard. More significantly, no evidence, documentary or other-
wise, was produced to support his latent account. However,
in view of the shifting reasons given Laswell for his transfer,
Supervisor Fowler’s testimonial account, which contradicts
the reason he gave to Laswell (because Packer wanted it that
way), as well as the overwhelming evidence which is incon-
sistent with his explanation, I discredit his testimonial ac-
count. I discredit his account not only because I was per-
suaded by his demeanor that he was not testifying truthfully,
but also because it is contradictory to the logical consistency
of all of the credited evidence of record.
Additionally, Laswell testified without dispute that he and
other fellow employees have been parking their vehicles
(cars and trucks) near the plant in the contended restricted
parking area since 1987. At no time did any member of man-
agement warn or discipline any of them for parking in that
area until Laswell was restricted and disciplined for parking
there, after the onset of union activity and the union election
279FORMS CORP. OF AMERICA
held on January 25. Respondent learned on that day and
thereafter, that Laswell and Shelton would make a second ef-
fort to unionize Respondent a year later. At the time (Feb-
ruary 1991) Respondent proceed to single out Laswell for
parking restriction and discipline.
It was particularly noted during the trial here in that Re-
spondent (Vice President Packer), in describing conversations
he held with Laswell, stated that the latter appeared confused
about continuing his union effort, wanting to change his
mind about it, and expressing apprehension of harm to him-
self by the Union if he negotiated a voluntary layoff, or
abandoned his union effort. In testifying, Packer at times,
made it appear that Laswell was confused and unstable about
his objective. However, in observing the demeanor of
Laswell, I did not receive any impression that he was any-
thing other than determined to unionize Respondent. He is a
large man and did not appear to be put in fear easily. He
had no history of emotional instability but became highly
disturbed and exhausted from Respondent closely watching
him suddenly restricting his parking and movements, and
issuing disciplinary warnings only to him, for parking and
talking to a fellow worker during work hours (harassment)
in response to his support for the Union.
Laswell was treated by his physician briefly with tranquil-
izers until he could no longer tolerate Respondent’s conduct
and quit its employ. Respondent did not present any evidence
of any other employee being treated as Laswell and Shelton
for any alleged reason.
Consequently, I find that the evidence clearly demonstrates
that Respondent wanted Laswell out of its employ before he
had an opportunity to help unionize Respondent in January
1992. In order to accomplish this objective, Respondent em-
barked on a pattern of technical harassment of Laswell by
singling him out for frivolous warnings, restricting him from
talking to maintenance mechanics without a work order, and
transferring him from second to first shift to conflict with his
farming operations, all with hopes that he would quit and not
be in its employ to help organize a union in 1992. Lotts
Electric Co., 293 NLRB 297, 306 (1989); Gencorp, 294
NLRB 717, 725, 731–732 (1989). Respondent accomplished
its mission and its reasons given for its actions are
pretextual.
Consequently, I further find that Respondent has failed to
establish by a preponderance of the evidence that its warn-
ings, work restrictions, and transfer actions in regard to Paul
Laswell would have taken place even in the absence of his
protected concerted conduct. Consequently, Respondent’s
conduct was motivated by Laswell’s protected concerted con-
duct, and was therefore discriminatory and in violation of
Section 8(a)(3) of the Act. Wright Line, supra; Gencorp,
supra.
The Discharge of Steve Shelton
The uncontroverted and credited evidence of record shows
that Steve Shelton was employed by Respondent January 25,
1984, and that he worked as a pressman under the super-
vision of James (Jim) DiTusa. The Company was not union-
ized at the time he was hired.
However, in mid-October 1990, Shelton, Paul Laswell, and
six other employees attended an initial organizing meeting
with Union Representative Bob Goode. Thereafter, Shelton
distributed union authorization cards and solicited employ-
ees’ signatures during breaks and lunch periods in the cafe-
teria, and at the employees’ entrance-exit gate before and
after work hours. He also wore a union button and authored
an open letter to employees about the Union, which was
posted on the employees’ bulletin board. He had union signs
stating ‘‘vote yes’’ attached to his toolbox and he served on
the in-plant union organizing committee, of which facts Re-
spondent was fully aware.
On January 3, 1991, Supervisor DiTusa came to Shelton’s
work station, noted the signs on his toolbox, and told him
to take the ‘‘vote yes’’ signs down because if he did not,
President Clyde Packer had directed him (DiTusa) to take
them down. Shelton asked DiTusa what was wrong with the
signs because he did not see anything wrong with them—the
employees were within their rights simply displaying the
signs. DiTusa told him the signs constituted a violation be-
cause they were displayed in a work area. On January 7,
1991, DiTusa came to Shelton’s work station, read a sign on
his toolbox and said, ‘‘I don’t think you said that—that is
derogatory.’’ The sign read ‘‘FCA fails to cooperate’’ (Form
Corporation of America fails to cooperate). Shelton told
DiTusa ‘‘I think I can say that’’ and DiTusa said ‘‘We’ll see
about that’’ and walked away. Thirty seconds later, DiTusa
returned and informed him that Packer said he can have the
sign in his toolbox but he had to keep the lid closed. Shelton
told him the Union’s lawyer told him he was within employ-
ees’ rights and he felt he was being harassed and refused to
close his toolbox.
The next day Shelton was called to a meeting with Man-
ager Bill Barclay and Supervisor DiTusa in the conference
room. Barclay asked him what did the wording of the sign
on his toolbox mean. He told them it meant what Webster’s
Dictionary defines as cooperation. He asked was it okay for
him to display the sign and Barclay said yes, but asked why
did he want a union anyway. He told Barclay he wanted a
union because his father was a union member at his job and
it was good for people—for the employees there, and he was
prounion. Barclay told him to go back to work.
Shelton served as an observer for the Union during the
election held January 24 and 25, 1991. The Union lost the
election and he told certain discouraged employees they
would have another chance to unionize Respondent after 1
year.
Respondent’s Policy on Absences
Human Resources Manager Ellie McEwen testified that
Respondent’s policy on employee absences implemented in
1986 is as follows:
If an employee calls in sick the first day, he or she is con-
sidered absent with notice (AWN) and the employee is as-
sessed one point. However, each succeeding day out when
the employee calls in, is considered a continuing illness and
no points are assessed. If the employee is out for more than
3 successive days, he or she must submit a doctor’s note on
return, stating the dates the employee was out and the rea-
sons why he or she was out.
If an employee presents a doctor’s statement to Respond-
ent indicating that the employee will be out for a definite
number of days (3 weeks), the employee does not have to
call in daily.
In mid-January 1991, Respondent installed a call-in tele-
phone in the center of the plant’s floor. When an employee
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
called in supervisors were directed to record the name, mes-
sage, date, and time of the call in the logbook situated near
the telephone; and the employees were not to answer the
phone and relay messages to supervisors. Although Company
Official Barclay testified employees were not to answer and
take messages on the phone, he failed to establish that Re-
spondent had established, announced, or published such a
policy, or that employees did not in fact answer the phone
and take messages on occasion.
Shelton testified he called in sick on the sick line tele-
phone number Monday, February 18, 1991, and press opera-
tor Dan Breen answered the phone. He told Breen he was
sick and Breen said he would inform the proper persons.
Shelton’s timecard for that workweek (R. Exh. 17) was ad-
mitted in evidence over the objection of counsel for the Gen-
eral Counsel. In the Monday column on the card (Feb. 18,
1991) is marked ‘‘AWON’’ (absent without notice) and ini-
tialed J. D. (James DiTusa). However in the same column
appears blue marks clearly showing that something was well
scratched out. It is the scratched-over indication to which the
General Counsel objected for admission. However the bench
admitted the document because of the conflict in testimony
between Shelton, who said he called on February 18, and Re-
spondent’s denial and contention that Shelton did not call in
on that date.
In this regard, Supervisor DiTusa testified that he marked
Shelton’s card AWON about 4 p.m. Monday, February 18
and initialed it. At first he testified he did not know whether
the blue ink scratch-out was on the card when he wrote on
it. On further examination, however, DiTusa said the
scratched out mark was already on the card when he wrote
on it. DiTusa acknowledged he was responsible for indicat-
ing attendance and phone calls related thereto on the time-
cards, but he had no explanation for the blue scratch-out
marks.
DiTusa further testified that when he later asked Dan
Breen had he taken a sick call from Shelton, Breen said
‘‘yes’’ but did not give him a date. It is particularly noted,
however, that DiTusa does not say that he asked or tried to
establish a date through Breen when Shelton called in.
DiTusa acknowledged Shelton told him he had called in
Monday, February 18, and informed Breen he was sick but
said he did not receive a message from Breen on that date.
DiTusa also acknowledged that during Shelton’s exit inter-
view Shelton told Resource Manager Ellie McEwen that he
had called in Monday, February 18, and informed Breen that
he was sick and would not be in, and McEwen said she did
not receive any message. DiTusa said McEwen said she had
previously asked Breen had he received a call from Shelton
and Breen said he took one call but did not state what date.
Again, DiTusa does not say whether McEwen ever asked
Breen for a date and it is noted that neither DiTusa nor
McEwen gave Shelton the benefit of the doubt on the date
(February 18). It is particularly noted that Dan Breen is still
employed by the Respondent but he did not appear and tes-
tify in this proceeding and no explanation was made for his
nonappearance.
Additionally, Production Manager Bill Barclay testified
that on Tuesday, February 19, he learned from Supervisor
Don Lee that Shelton had called in sick and he (Barclay)
marked the journal ‘‘2-19-91, Shelton sick.’’ He said Lee
told him he had received the message from Dan Breen. How-
ever, it is also noted that Don Lee did not appear and testify
in this proceeding and no explanation is offered for his non-
appearance. Supervisor DiTusa testified that neither Super-
visor Don Lee nor press operator Dan Breen told him
Shelton had called in, so he marked Shelton’s card absent
without notice.
McEwen testified that Dan Breen told her Shelton had
called in sick Tuesday, February 19, and that he gave the
message to Supervisor Don Lee. The latter testimony is dis-
credited since neither Breen nor Lee appeared or testified.
McEwen denied DiTusa said during the exit interview that
Shelton did call in on Monday, February 18, and talked to
Breen and, therefore, he (Shelton) should not receive two
points.
Shelton testified he called in February 19 and told Man-
ager Barclay he was still sick and would not be in. DiTusa
testified Barclay told him Shelton had called in February 19
and Respondent’s Exhibit 12 marked AWN supports DiTusa
in this regard. Consequently, I credit DiTusa’s latter testi-
mony because it is supported by Respondent’s Exhibit 12
and is consistent with Shelton’s account that he called in on
February 19.
On Wednesday, February 20, the logbook, in Dan Breen’s
handwriting, shows that ‘‘Steve Shelton won’t be in sick.’’
Barclay denied Dan Breen ever answered the phone and
handed it to him, telling him it was from Shelton. However,
Breen’s handwriting is self-serving and disregarded since he
did not appear and testify in this proceeding. Breen was not
established to be a supervisor. However, Shelton’s testimony
that he called in February 20 is credited over Barclay’s de-
nial.
Manager Barclay said he called Shelton on Wednesday,
February 20, 1991, because he knew Shelton had four points
and he wanted to know what was wrong with him since he
needed him there to run the Morgan press. He said he asked
Shelton why he did not call in and Shelton said, ‘‘I should
have called on Monday but my medication was not effective,
I was still not well, and I was going to my doctor the next
day. Barclay said he wrote in the logbook ‘‘Steve Shelton
won’t be in, Wednesday, February 20, 1991.’’ However,
Shelton testified he called in February 20 and told Barclay
he was still sick and would not be in and Barclay said O.K.
Shelton denied Barclay or any other member of management
called and spoke to him at home about points before Feb-
ruary 26. The logbook does not show that Barclay called or
spoke with Shelton February 26, 1991. I therefore credit
Shelton’s account that he called in February 20 not only be-
cause it coincides with the documentary and circumstantial
evidence, but also because I was persuaded by his demeanor
that he was testifying truthfully. Correspondingly, I was not
persuaded by the demeanor of Barclay or the circumstances
that he was testifying accurately or truthfully.
Barclay further testified that Shelton called him the next
day, Thursday, February 21, and told him he had to get his
medicine changed and hoped he will get well over the week-
end; and that he will be out until Monday, February 25. He
told Shelton ‘‘okay, be sure to call and he would look to see
him on Monday [February 25] doctor’s orders,’’ and he re-
corded the call in the logbook (R. Exh. 12).
In any event, Shelton did not call in or report to work
Monday, February 25, as he previously indicated, so Barclay
called him at home at 3:15 p.m. and asked him why was he
281FORMS CORP. OF AMERICA
not there. According to Barclay, Shelton replied, ‘‘Oh, I
thought you said I didn’t have to call you until I was coming
back’’; that he was sorry and he must have misunderstood.
He asked Shelton should he assume he would be in tomor-
row (Tuesday, February 26) and Shelton said ‘‘No, don’t as-
sume, I will call you tomorrow.’’ Shelton did not call or re-
port to work on Tuesday, February 26.
Barclay denied he ever told Shelton in their telephone con-
versation February 21, that Shelton can call in the day he
would return to work. Shelton first testified his medication
was changed and he fell asleep and did not call in. Then he
testified he was still sick and he called in February 21 and
requested insurance forms.
Finally, Shelton testified he did not call in February 21 be-
cause he had visited his doctor that day and was given a pre-
scription medication. When he returned home and took the
medication he fell asleep. Around 4:30 p.m. he received a
phone call from Supervisor Barclay who asked him why had
he not called in. Shelton told him about the medication, his
falling asleep, and that the doctor told him to stay home until
at least February 25. If he was still sick on that date, the
doctor told him he would extend his time off. Barclay told
Shelton he was to call in everyday and Shelton said he re-
minded Barclay how he had been out sick for an extended
time in 1988 and did not call in everyday. He told Barclay
he believed you only had to call in once if you were out for
an extended illness, and he asked Barclay what did he want
him to do. After a pause, Barclay said, ‘‘okay, on the morn-
ing of the day you are going to return to work, call me so
I can schedule you back to work.’’ Shelton told him he
would do that. However, Barclay denies he ever gave
Shelton such instructions.
Supervisor DiTusa testified the logbook shows Shelton
called in February 21 and informed Manager Barclay that he
was still out sick until February 25.
Shelton, nevertheless, followed his understanding of the
conversation with Barclay on February 21 and did not call
in on February 25 or 26 because he was still sick. However,
he said Barclay called him at home about 4:30 p.m. February
26 and asked him why had he not called in or reported for
work that day (February 26). Shelton told him he (Barclay)
had told him not to call in until the day he was returning
to work. Barclay denied he had told Shelton that, telling
Shelton he misunderstood him. Barclay then told Shelton he
had accumulated a lot of points under the attendance policy.
Shelton told him he was feeling better and would probably
report to work the next day (February 27), and Barclay told
him to call in the next day and notify him.
McEwen acknowledged she never asked Shelton did he
have a written excuse from his doctor nor did Shelton tell
her he had one. She admitted he did tell her he had tele-
phone bills indicating he did call in February 18, 1991, but
he never offered to show them to her. She did not tell him
on the telephone to bring them to his exit interview and
thereafter, because she did not think about them thereafter.
However, Shelton said he offered his doctor’s excuses at his
termination on February 27, 1991, but that Supervisor
DiTusa said he did not need them. He acknowledged he did
not offer his telephone bills at the exit interview but said he
did tell them he had them with him. He denied he told them
he was not there to dispute the points, because he did dispute
the two points for February 18. Respondent said those two
points would only reduce his undisputed points from nine to
eight, which it contends is still over seven points.
Shelton called Barclay the next morning (February 27) at
10 o’clock and informed him he was coming to work that
afternoon. Barclay said, ‘‘okay, we’ll see you then.’’
Supervisor Barclay denied he had any conversations with
Shelton on Tuesday, February 26, but stated he did mention
points during his conversation with Shelton on Wednesday,
February 20. He further stated he had discussed Shelton’s
points with Human Resources Manager McEwen and Man-
ager Clyde Packer on Wednesday, February 27, and rec-
ommended Shelton’s termination. He said President Joe
Mead agreed Shelton had too many points.
When Shelton reported to work that afternoon (February
27), he presented his medical (doctor’s) excuse to Barclay,
who told him to present it to Supervisor DiTusa. When
Shelton went to his press, DiTusa told him he needed to see
him in the office. Shelton presented his medical excuse to
DiTusa but DiTusa told him he did not need it. When they
went into the office DiTusa told him he had a lot of points
and Respondent’s policy on absenteeism provided that an
employee had to be terminated on their receipt of seven
points and he (Shelton) had 10 points. DiTusa told Shelton
he was sorry but Respondent had to let him go.
Manager Barclay testified he considered Shelton to be a
good employee with no serious attendance problems.
Again the evidence in this case shows that another em-
ployee, Steve Shelton, has been in Respondent’s employee
even longer than Paul Laswell, in fact since January 1984.
His longer employment tenure with Respondent was also un-
eventful in reference to problems prior to union activity.
(Management) Supervisor Barclay considered him a good
employee with no serious problems of attendance. Like
Laswell, in mid-October 1990, Shelton became an open
union advocate and supporter and Respondent was well
aware of his position in this regard. In fact, in early January
1990, Shelton was interrogated about his union interest by
his supervisor, Jim DiTusa, who also tried to have him re-
move union signs from his toolbox, without giving him any
assurances against reprisals by Respondent for his union in-
volvement. Shelton served as an observer for the Union dur-
ing the union election.
The Union lost the election on January 25, 1991, and
Shelton, like Laswell, told disappointed employees they
would have another chance to vote for unionization a year
later. Three weeks after the union election, Shelton was out
sick Monday, February 18, 1991. He remained out sick until
February 27, 1991, during which time a dispute arose be-
tween himself and management as to whether he complied
with Respondent’s call-in points policy, instructions given
him by Supervisor Barclay regarding his compliance there-
with, and Respondent’s clear and proper enforcement of the
attendance policy. Shelton lost the disputed argument when
Respondent abruptly terminated his employment February 27,
1991, on the application of the policy and Respondent’s de-
termination that Shelton did not comply therewith.
Although Respondent’s termination of Shelton may appear
to have some technical credence that he failed to comply
with Respondent’s call-in policy, that appearance quickly
vanishes when Respondent’s application of the attendance
policy is considered in the context of the total credited evi-
dence and findings in this record. Thus, when the 7 years’
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tenure of this acknowledged essentially problem-free em-
ployee (Shelton) is considered along with the advent of his
and Laswell’s union activity and the problems they encoun-
tered before and after the election, I am not persuaded that
Shelton’s noncompliance with the attendance policy can be
attributed to coincidence. It is clear from the record that al-
though Shelton has worked for Respondent since January
1984, he had no serious problems with anything before the
onset of union activity in mid-October 1990. Notwithstand-
ing, within the last 3 months of his employment, between
December 1990 and February 27, 1991, when he was termi-
nated, Respondent, without any explicit warning to him, de-
termined on disputed facts, and an unclear interpretation and
swift enforcement of an attendance policy, that he violated
the call-in policy to an extent warranting his termination.
It is clear from the credited evidence that Shelton had been
out sick before 1991 and did not call in everyday as Re-
spondent now contends was required. Respondent’s conten-
tion is not supported by any evidence that it clearly pub-
lished or emphasized to employees that they were to call in
everyday when they were out sick, even when the employees
made it clear that they could not determine from the nature
of their illness, when they would return to work. In the ab-
sence of such evidence, I am persuaded by the credited evi-
dence that Respondent reinterpreted its policy or started en-
forcing it more strictly than in the past, without notifying all
employees, specifically Shelton. In the context of the total
evidence, such stricter enforcement was designed to get rid
of Shelton.
Strangely, two employees (Shelton and Laswell) were sub-
jected to such drastic actions by Respondent (shift transfer
and termination under conflicting factual circumstances)
within that 3-month period, just happened to be these two
well-known union proponents. Although the election was
over January 25, 1991, Respondent overheard the union rep-
resentative tell Laswell he will be back next year. Respond-
ent also had first-hand knowledge from Shelton that he was
from a union home, that he believed in unionization and he
was prounion. Respondent therefore had every reason to be-
lieve or know that Shelton and Laswell would be making a
second effort to unionize Respondent in January 1992. Pack-
er had already informed Laswell Respondent was going to
get rid of employees with the bad attitude (union supporters),
and it had informed supervisors Laswell would not be in its
employee for another election. It would have to follow that
Shelton had a bad attitude also, since he was a union sup-
porter.
Under the above circumstances, it would not make sense
for Respondent to tell supervisors Laswell would not be
there for another election, if Respondent did not also have
the same attitude towards, and the same intentions for
Shelton. Indeed the fact that it terminated Shelton 3 weeks
after the election clearly demonstrates that he too was in-
cluded in the same get-rid-of plan Respondent had designed
for Laswell and other bad attitude (union supporter) employ-
ees. Moreover, it is clear that Respondent’s contended reason
for Shelton’s discharge (noncompliance with its absentee pol-
icy) is a pretext to conceal its real reason, Shelton’s, pro-
tected concerted activity. Phillips Industries, supra; China-
town Planning Council, 290 NLRB 1091 (1988).
I also conclude and find on the foregoing credited evi-
dence and reasons that Respondent has failed to demonstrate
by a fair preponderance of the evidence that its discharge of
Steve Shelton would have taken place even in the absence
of his protected concerted conduct. Consequently, I find that
Respondent’s discharge of him was motivated by his pro-
tected concerted conduct in violation of Section 8(a)(3) of
the Act. Wright Line, supra.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices warranting a remedial order, I shall rec-
ommend that it cease and desist from engaging in such con-
duct, and that it take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent has coerced and restrained
its employees by engaging in numerous threatening, interro-
gating, and intimidating conduct in violation of Section
8(a)(1) of the Act; that it has discriminatorily transferred an
employee to another work shift, discriminatorily issued a
warning to him, and issued a second discriminatorily warning
to him forbidding him to talk to a fellow employee without
a work order during work hours; discriminatorily discharged
another employee, and failed and refused to reinstate him to
his position in its employ, all because both employees en-
gaged in protected union activity, in violation of Section
8(a)(3) of the Act, the recommended Order will provide that
Respondent cease and desist from engaging in such unlawful
conduct.
Because of the character of the unfair labor practices here
in found the recommended Order will provide that Respond-
ent cease and desist from or in any like or related manner
interfering with, restraining or coercing employees in the ex-
ercise of their rights guaranteed by Section 7 of the Act.
NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir.
1941), and New Horizons for the Retarded, 283 NLRB 1173
(1987), except as specifically modified by the wording by
such recommended Order.
CONCLUSIONS OF LAW
1. By promising an employee benefits if he would with-
draw his support for the Union and support the Respondent’s
position, Respondent violated Section 8(a)(1) of the Act.
2. By promising employees it would or could give em-
ployees more than the Union could give them, Respondent
violated Section 8(a)(1) of the Act.
3. By soliciting employees assistance to change vote-yes
to vote-no votes, Respondent violated Section 8(a)(1) of the
Act.
4. By promising to allow an employee to act like a stew-
ard for employees in presenting grievances to management if
he would withdraw his support for the Union, Respondent
violated Section 8(a)(1) of the Act.
5. By telling an employee he passed up a ‘‘hell of an op-
portunity for benefits’’ because he declined to withdraw his
support for the Union, Respondent violated Section 8(a)(1) of
the Act.
6. By telling an employee management wanted him out of
the Company’s employ before another union election could
be held, Respondent threatened such employee with dis-
charge, in violation of Section 8(a)(1) of the Act.
7. By restricting the in-plant movements of an employee
and closely observing and monitoring his performance, Re-
spondent created the impression among employees that their
283FORMS CORP. OF AMERICA
3 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.
4 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.’’
protected concerted union activities were under surveillance
by Respondent, in violation of Section 8(a)(1) of the Act.
8. By telling a well-known union supporter employee he
had a bad attitude and Respondent was going to get rid of
employees who did not change their bad attitude, Respondent
threatened to discharge the employee in violation of Section
8(a)(1) of the Act.
9. By interrogating a well-known union supporter em-
ployee as to whether he was talking to another employee
about the Union, Respondent created the impression among
employees that their protected concerted and union activities
were under surveillance by Respondent, in violation of Sec-
tion 8(a)(1) of the Act.
10. By discriminatorily transferring employee Paul Laswell
from second to first work shift, Respondent violated Section
8(a)(3) of the Act.
11. By discriminatorily issuing a warning to Paul Laswell
for parking near the plant, Respondent violated Section
8(a)(3) of the Act.
12. By discriminatorily issuing a written warning only to
union proponent Paul Laswell, forbidding him from talking
to a fellow employee without a work order during work
hours, Respondent violated Section 8(a)(3) of the Act.
13. By discriminatorily discharging union proponent em-
ployee Steve Shelton, Respondent violated Section 8(a)(3) of
the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Forms Corporation of America, Spring
Grove, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Promising employees benefits if they would withdraw
their support for the Union and support Respondent’s posi-
tion.
(b) Promising employees Respondent could or would give
employees more than the Union could give them.
(c) Soliciting employees’ assistance to change yes-votes to
no-votes.
(d) Promising to allow an employee to act like a steward
for employees in presenting their grievances to management,
if they abandoned their support for the Union.
(e) Telling an employees he passed up ‘‘a hell of an op-
portunity for benefits’’ when he declined to withdraw his
support for the Union.
(f) Telling an employee Respondent wanted him out of its
employ before another union election could be held.
(g) Restricting the in-plant movements of and more closely
observing and monitoring the work performance of a well
known union supporter employee.
(h) Telling a well-known union supporter employee he had
a bad attitude and it was going to get rid of employees who
did not change their bad attitude (union supporter).
(i) Questioning a well-known union supporter as to wheth-
er he was talking to another employee about the Union.
(j) Discriminatorily transferring an employee from one
work shift to another because he supported the Union.
(k) Discriminatorily issuing a written warning only to a
well-known union supporter employee for parking near the
plant.
(l) Discriminatorily issuing a written warning to only a
union supporter for talking to a fellow employee during work
hours.
(m) Discriminatorily discharging a union proponent em-
ployee because he advocated and supported the Union.
(n) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from all company records of former employee
Paul Laswell any reference to the unlawful warnings for
parking and talking to a fellow employee issued to him, and
notify him in writing that this has been done by the Re-
spondent and that the unlawful warning will not be used
against him in any way.
(b) Recall and offer to Steve Shelton immediate and full
reinstatement to his former job or, if such job no longer ex-
ists to a substantially equivalent position, without prejudice
to his seniority or other rights or privileges previously en-
joyed, and make him whole, with interest, for any loss of
earnings or benefits he made have suffered as a result of his
discharge.
(c) 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 ana-
lyze the amount of pay due under the terms of this Order.
(d) Post at Forms Corporation of America, Spring Grove,
Illinois, copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Regional Di-
rector for Region 33, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt thereof and be maintained by Re-
spondent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 promise employees benefits if they would
withdraw their support for the Union and support our posi-
tion opposing unionization.
WE WILL NOT promise employees we could or would give
them more than the Union could give them.
WE WILL NOT solicit employees’ assistance to change em-
ployees’ yes votes to no votes.
WE WILL NOT promise to allow an employee to act or
serve like a steward for employees in presenting their griev-
ances to management if they would abandon their support for
the Union.
WE WILL NOT tell an employee he passed up ‘‘a hell of
an opportunity for benefits’’ because he declined to withdraw
his support for the Union.
WE WILL NOT tell unsuccessful employees supporting the
Union we want them out of our employ before another union
election can be held.
WE WILL NOT restrict the movements of employees in the
plant and more closely observe and monitor them as they
perform their work.
WE WILL NOT tell our employees they have a bad attitude
because they support the Union and we are going to get rid
of employees who do not change their bad attitude.
WE WILL NOT interrogate employees supporting the Union
about whether they are talking to fellow employees about the
Union.
WE WILL NOT discriminate against our employees by
transferring them to another work shift because they support
the Union.
WE WILL NOT discriminate against our employees by
issuing a disciplinary warning to them for parking near the
plant because they support the Union.
WE WILL NOT discriminate against our employees who
support the Union by issuing them a written warning forbid-
ding them to talk to a fellow employee during working
hours.
WE WILL NOT discriminate against the hire, tenure or
terms or conditions of employment of our employees, by ter-
minating their employment because they supported the
Union.
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 recall or offer to recall Steve Shelton to the posi-
tion he last held, or if such position no longer exists, to a
substantially equivalent position for which he qualifies with-
out prejudice to his seniority or other rights and privileges,
and we will make him whole for any loss of pay he suffered
as a result of discrimination against him, with interest.
WE WILL remove from all company records, any reference
to the unlawful warnings issued to Paul Laswell, and notify
him in writing that this has been done by us, and that the
unlawful warnings will not be used against him in any way.
All our employees are free to become or remain, or refuse
to become or remain, members of Local 415-S Graphic
Communications International Union, AFL–CIO or any other
labor organization.
FORMS CORPORATION OF AMERICA