General Wood Preservative Co.

National Labor Relations Board - Board Decisions

May 12, 1988

288 N.L.R.B. 956 (N.L.R.B. 1988)

956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Burke-Parsons Bowlby and its Successor, General
Wood Preservative Company and International
Woodworkers of America, AFL-CIO. Cases 11-
CA-11282, 11-CA-11376, and 11-CA-11487
May 12, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT`
On June 30, 1986, Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
The Respondent, General Wood Preservative
Company, filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
1 In her answering brief, the General Counsel moved to strike the fol-
lowing statement contained in the Respondent's brief in support of its ex-
ceptions: "The unit packing by a former employer certainly is viewed as
a joke by General Wood employees . ." The General Counsel's
motion is denied because we neither accept the Respondent's claim nor
rely on it
2 The judge found that the February 27, and March 2, 1984 warnings
issued to employee George Jenkins violated Sec 8(a)(3) and (1) of the
Act. The General Counsel's answering brief notes that the issuing of
these warnings is alleged to violate only Sec 8(a)(1) of the Act, as the
dates of the warnings are not within the 10(b) period of the 8(a)(3)
charge in Case 11-CA-11487 filed on October 29, 1984 Accordingly, we
find that the warnings issued to Jenkins violated only Sec. 8(a)(1) of the
Act
In agreeing with the finding of an 8(a)(1) threat in the March 30 letter
sent by Richard Bowlby to the employees—and in particular the letter's
warnings about the "cost" of a union and the danger of the employees'
voting themselves "into a sea of trouble"—we rely on the numerous spe-
cific threats of job loss and benefit loss uttered by the company supervi-
sors before that letter was sent In that context, those general warnings
did not enjoy the protection of Sec. 8(c) of the Act We adopt the
judge's unlawful promise of benefits finding We note, as did the judge,
that the March 30 letter was followed by another letter 2 weeks later,
after the cancellation of the election, in which the Respondent informed
one of the leaders of the union campaign, inter aim, that warning notices
previously issued to employees were being removed and meetings be-
tween management and employees would be regularly scheduled In
these circumstances, we cannot dismiss as "vague" the Respondent's pre-
ceding promises to "work out our problems" and "do it easier and better
without the union," Rather, we find, in agreement with the judge, that
the Respondent's subsequent conduct confirms that the March 30 letter
was a promise of benefits calculated to induce employees to reject union
representation and thus violative of Sec 8(a)(1)
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In sec IV,A,I of his decision entitled "Alleged Interrogations and
Threats," the judge inadvertently erred in referring to the testimony of
"Paul Barnes" The correct reference is "Paul Bowens."
conclusions and to adopt the recommended Order
as modified.3
In agreeing that a bargaining order is appropriate
in this case, we rely on the evidence that Respond-
ent General Wood commenced its takeover of
predecessor Bowlby by discriminatorily refusing to
hire known union activists and by committing that
violation through Production Manager Thomas
Greene, who had held the same position with the
predecessor. Thus, whatever might be the case had
Respondent General Wood wiped the slate clean
and hired an entirely new managerial and supervi-
sory complement, the employees here had received
the plain message that supporting the Union was a
dangerous proposition regardless of whom the em-
ployer was. Compare NLRB v. Cott Corp., 578
F.2d 892 (1st Cir. 1978), denying enf. 232 NLRB
312 (1977) (finding extension of Gissel obligation to
successor inappropriate where successor hired all
the predecessor's employees, remedied all the pred-
ecessor's 8(a)(3) and (1) violations, and committed
no violations of its own aside from its alleged un-
lawful failure to bargain with the union).
With respect to the question whether union ma-
jority was validly established by a majority of sig-
natures on a petition that stated agreement to be
represented by the AFL-CIO and/or an appropri-
ate affiliate, we rely on the following: (1) the cred-
ited evidence that after signatures were obtained on
that petition, a subsequent meeting was held at
which employees voted to be represented by the
Union; (2) the execution in mid-March by the
Union and Respondent Burke-Parsons Bowlby of
an election agreement pursuant to which the Union
was to appear on the ballot in the election sched-
uled for April 6, 1984; (3) the circulation of a letter
from President Richard Bowlby to all plant em-
ployees commenting that "There has been much
said in the past few weeks about the Woodworkers
Union" and urging the employees to vote against
the Union; and (4) the absence of evidence of at-
tempts by any employee who signed the initial
union authorization petition to revoke his authori-
zation. In sum, a majority of employees initially
agreed that they were willing to be represented by
an affiliate of the AFL-CIO, and it was clear who
that affiliate was before the Union made its bar-
gaining demand on Respondent General Wood.
3 In this Order, the judge recommended the Inclusion of a visitatorial
clause, authonzmg the Board, for compliance purposes, to obtain discov-
ery from the Respondent under the Federal Rules of Civil Procedure
subject to the supervision of the United States court of appeals enforcing
the Order Under the- Circumstances of this case, we find it unnecessary
to include such a clause See Cherokee Marine Terminal, 287 NLRB 1080
(1988). Accordingly, we shall modify the judge's Order to delete this
clause
288 NLRB No. 102
GENERAL WOOD PRESERVATIVE CO. 957
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the
Respondent,General Wood Preservative Company,
Leland, North Carolina, its officers, agents, succes-
sors, andassigns, shall take the action set forth in
the Order as modified.
Substitute the following for paragraph 2(e).
"(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
George S. Carson, Esq., for the General Counsel.
Robert A. Valois, Esq., and Thomas A. Farr, Esq. (Maupin,
Taylor, Ellis & Adams), of Raleigh, North Carolina, for
the Respondent.
Jeffrey P. Sweetland, Esq., of Riverdale, Georgia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me in Wilmington, North
Carolina, on 28, 29, and 30 October 1985. The original
charge in Case 11-CA-11282 was filed by the Interna-
tional Woodworkers of America, AFL-CIO (the Charg-
ing Party or the Union) on 4 April 1984 against Burke-
Parsons owlby (Respondent Bowlby or Bowlby) and
the original complaint was issued by the Acting Regional
Director for Region 11 of the National Labor Relations
Board (the Board) in this case on 11 May 1984 and al-
leged that Respondent Bowlby had violated Section
8(a)(1) of the National Labor Relations Act (the Act) by
interrogating its employees concerning their union activi-
ties, sympathies, and desires and by threatening them
with plant closure, loss of jobs, sale of the plant, and un-
specified reprisals if they selected the Union as their col-
lective-bargaining representative and by 'promising its
employees improved benefits if they abandoned their
support of the Union and by engaging in unit packing by
transferring employees for the purpose of defeating the
Union in the scheduled election. Respondent Bowlby by
its answer filed 23 May 1984 denied the alleged viola-
tions of the Act. On 8 June 1984 the Regional Director
for Region 11 amended the complaint in Case 11-CA-
11282 by deleting the allegation of unit packing. On 5
July 1984 the Charging Party filed an original charge in
Case 11-CA-11376 and subsequently filed an amended
charge in Case 11-CA-11376 on 7 August 1984. On 14
August 1984 the Regional Director for Region 11 filed
an order consolidating Cases 11-CA-11282 and 11-CA-
11376 alleging that Respondent Bowlby had violated
Section 8(a)(1) of the Act by interrogating its employees
concerning their union activities, sympathies, and desires,
and by threatening its employees with loss of benefits,
loss of jobs, subcontracting of work, sale of the plant,
and unspecified reprisals if they selected the Union as
their collective-bargaining representative and by threat-
ening its employees with plant closure because of their
union activities and by promising its employees improved
benefits if they abandoned their support of the Union and
by engaging in unit packing by transferring employees
for the purpose of defeating the Union in the scheduled
election. On 22 August 1984 Respondent Bowlby filed its
answer in Cases 11-CA-11282 and 11-CA-11376 deny-
ing the alleged violations of the Act. On 29 October
1984 the Charging Party filed an original charge in Case
11-CA-11487 against Respondent Bowlby and its succes-
sor and party-in-interest, General Wood Preservative
Company (Respondent General Wood or General
Wood). On 14 December 1984 the Acting Regional Di-
rector for Region 11 filed a second order consolidating
Cases 11-CA-11282 and 11-CA-11376 with Case 11-
CA-11487 and a consolidated complaint in these cases
and added General Wood as a respondent in these cases
as an alleged successor of Bowlby. The consolidated
complaint in Cases 11-CA-11282, 11-CA-11376, and 11-
CA-11487 alleges that Bowlby interrogated employees
concerning their union activities, sympathies, and desires,
threatened its employees with loss of benefits, loss of
jobs, subcontracting of work, sale of the plant, and un-
specified reprisals if they selected the Union as their col-
lective-bargaining representative, threatened the employ-
ees with plant closure and blacklisting because of their
union activities, engaged in unit packing by transferring
employees to its Leland, North Carolina facility for the
purpose of defeating the Union in the scheduled election,
since about February 1984 more stringently enforced
work rules and policies because of employees' union ac-
tivities, all in violation of Section 8(a)(1) of the Act. The
complaint further alleges that Respondent Bowlby issued
written warnings to certain of its employees because of
their union activities in violation of Section 8(a)(1) and
(3) of the Act. The complaint further alleges that Re-
spondent General Wood refused to hire certain former
employees of Respondent Bowlby because of their union
activities in violation of Section 8(a)(1) and (3) of the
Act. Respondent Bowlby by its amended answer filed 24
December 1984 denied the commission of the alleged
violations of the Act. Respondent General Wood by its
answer filed 3 January 1985 denied that it was a succes-
sor to Burke-Parsons and denied the commission of any
of the alleged violations of the Act. On 30 August 1985
the Regional Director for Region 11 issued an amended
consolidated complaint in Cases 11-CA-11282, 11-CA-
11376, and 11-CA-11487 setting out the aforesaid allega-
tions listed above in the original consolidated complaint
in Cases 11-CA-11282, 11-CA-11376, and 11-CA-11487
and added allegations that since about 8 February 1984 a
majority of the employees of Respondent Bowlby in an
alleged appropriate unit designated and selected the
Union as their representative for the purpose of collec-
tive bargaining with Respondent Bowlby and that since
that date the Union has been the exclusive collective-bar-
gaining representative of the employees in said unit and
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has requested Respondent Bowlby since 9 February 1984
and has requested Respondent General Wood since 22
June 1984 to recognize and bargain with the exclusive
collective-bargaining representative of the employees in
the unit but that Respondents Bowlby and General
Wood have refused and failed to do so. The complaint
also alleges that the alleged unfair labor practices are so
serious and substantial in character and effect as to war-
rant the entry of a remedial order requiring Respondent
Bowlby and General Wood, its successor, to recognize
and bargain with it as the collective-bargaining repre-
sentative of its employees in the aforesaid unit. Respond-
ent Bowlby by its answer filed on 9 September 1985 was
amended on 25 October 1985 and Respondent General
Wood by its answer filed on 13 September 1985 have
denied the commission of the alleged violations of the
Act.
On the entire record, including my observations of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent, I make the following
FINDINGS OF FACT'
I. JURISDICTION
The complaint alleges, Respondent Burke-Parsons
Bowlby admits, and I find that it has been at all times
material a West Virginia corporation operating a facility
in Leland, North Carolina, where it was engaged in
wood treatment, that during the 12 months prior to 30
June, 2 a representative period, it received at its Leland,
North Carolina facility goods and raw materials from
points directly outside the State of North Carolina
valued in excess of $50,000, and in the course and con-
duct of its operations derived gross revenues in excess of
$500,000, and at that it is now and has been at all times
material an employer in commerce within the meaning of
Section 2(6) and (7) of the Act.
The complaint alleges, Respondent General Wood
Preservative Company admits, and I find that it has been
at all times material a North Carolina corporation with a
facility located in Leland, North Carolina, where it is en-
gaged in wood treatment and that during the 12-month
period preceding the filing of the complaint, a represent-
ative period, in the course and conduct of its operations,
it received at its Leland, North Carolina facility goods
and raw materials valued in excess of $50,000 from
points directly outside the State of North Carolina and
derived gross revenues in excess of $500,000. On the
basis of the foregoing admitted facts and the record as a
whole, I find that Respondent General Wood has been at
all times material an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION
The complaint alleges, Respondents admit, and I find
that International Woodworkers of America, AFL-CIO
1 The findings of fact include a composite of the testimony of the wit-
nesses and of admitted exhibits
2 All dates are in 1984 unless otherwise stated.
is, and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE BARGAINING UNIT
The complaint alleges, and I find on the basis of the
evidence adduced at the hearing through the testimony
of Respondent Bowlby's former production manager,
Thomas P. Greene, who had at all material times served
as Respondent General Wood's production manager, on
the basis of the testimony of Steve Hutchinson, Respond-
ent General Wood's operations manager, and on the basis
of the record evidence, specifically General Counsel's
Exhibits 38-41, and on the basis of the unit originally
stipulated to by Respondent Bowlby for purposes of the
scheduled April election, that the following employees of
Respondent, Bowlby and its successor General Wood
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
All production and maintenance employees em-
ployed at the Employer's Leland, North Carolina
facility, excluding office clerical employees, techni-
cal employees, professional employees, guards and
supervisors within the meaning of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
In February, certain of the production and mainte-
nance employees of Bowlby engaged in a walkout.
Shortly thereafter, in February the employees contacted
the Industrial Union Department (IUD) of the AFL-
CIO and met with Michael Black, the coordinator of the
IUD. The employees at that meeting signed petitions
seeking union representation. According to the unrebut-
ted testimony of Black, which I credit, he told the em-
ployees he would need to check to determine which
union would best represent their interests and at a subse-
quent meeting the employees agreed by a unanimous
voice vote to select the International Woodworkers of
America, AFL-CIO, as their collective-bargaining agent
on the basis of Black's recommendation. Several of the
employees testified that after the advent of the Union's
campaign in February they were interrogated, threat-
ened, and promised benefits by Respondent Bowlby and
that they were disciplined for various alleged infractions
and that shortly prior to the scheduled April election,
Respondent Bowlby brought in employees from other fa-
cilities to vote in the election (thus attempting to "pack"
the unit in order to dissipate the Union's majority and
defeat the Union's campaign at the upcoming election
which had been scheduled for 6 April). The Union filed
charges thus blocking the election. The General Counsel
contends that the Union represented a majority of em-
ployees in February based on their signing of the peti-
tions at the meeting held by Black in February and on
the basis of other petitions signed by other employees.
The General Counsel also contends that Respondent
General Wood is a successor to Bowlby having complet-
ed a transaction for the purchase of assets, including
equipment and materials, having taken over the physical
facilities of Bowlby, having hired the majority of its em-
GENERAL WOOD PRESERVATIVE CO. 959
-
ployees and of the supervisors from Bowlby, and having
acquired and engaged in the same business of treating
wood with preservatives for sale to the same customers.
The General Counsel contends that based on the signa-
tures obtained in February, the Union had a majority of
employees who desired union representation and that a
bargaining order should be entered against Bowlby be-
cause of its flagrant and hallmark violations, particularly
that of unit packing and threats of plant closure, sale of
the business, and subcontracting, and that General Wood
acquired the assets and liabilities of Bowlby with full
knowledge of the alleged unfair labor practices of
Bowlby and further continued the unfair labor practices
by its refusal to hire former Bowlby employees who pre-
sented themselves for hire because of their support for
the Union and that General Wood should be ordered to
remedy its unfair labor practices against those employees
it failed or refused to hire and further should be ordered
to bargain with the Union as a result of the unfair labor
practices committed by Bowlby and of which General
Wood had knowledge and continued by General Wood
as those violations have the inevitable effect of dissipat-
ing the union majority.
A. Alleged 8(a)(1) and (3) Violations of Bowlby
The General Counsel presented as witnesses a number
of employees who testified that they had been interrogat-
ed and/or threatened with reprisals concerning their sup-
port for the Union by various supervisors and/or mem-
bers of management of Respondent Bowlby. Although
Respondent Bowlby filed an answer in this case consist-
ing principally of a general denial of the commission of
unfair labor practices alleged against it, no one appeared
or participated in the hearing on its behalf. The supervi-
sors and/or members of management alleged to have en-
gaged in the interrogation or threats were not called.
The employees' unrebutted testimony concerning these
events is set out below.
1. Alleged interrogations and threats
(a) Larry Brown who had worked at Bowlby since
June 1983 and who was employed as a "pole classer"
testified that in the second or third week of March his
supervisor, Gary Wood, told him "if we was to get the
union in, we would lose all seven paid holidays and we
would have to start all over from scratch again." Brown
replied "there was no way we could," and Wood retort-
ed "we could too." 3 Larry Brown further testified that
on Tuesday, 3 April, Plant Manager Carl Williams told
Brown and several other employees that "if the union
was to come in, we might as well start looking for an-
other job and so would he." Larry Brown's testimony
concerning the 3 April incident involving Williams was
corroborated by Michael Robinson, a mill operator who
had been employed at Bowlby between February and 30
April when he and a number of other employees were
laid off as a result of lack of work. Robinson testified
that Williams told him and several other employees that
3 The transcnpt at R. 32, L 13 is corrected to read "Re said we could
too."
if the Union were voted in, everyone, including himself,
would probably be looking for another job. The testimo-
ny of Larry Brown and Michael Robinson was further
corroborated by Paul Barnes who had been employed at
the pole machine from February or March through April
and who testified that on 3 April he and Larry Brown
and Robinson were at the pole machine and someone
said, "union time" and Williams said that "we don't want
no union in because if you do, me and you, all of us, we
might as well be looking for a job."
(b) Warren Bryant, a forklift operator who had
worked for Bowlby from August 1979 to June 1984, tes-
tified on 28 or 29 February his supervisor, Jimmy Smith,
asked him and employee Alexander Hall whether they
were for the Union, and both said yes, and that Smith
then told them he had promised himself that he would
quit before he belonged to a union. Bryant replied, "You
just as well get ready to quit because we are going to get
one anyhow." Bryant testified further that Smith then
said, "that everybody get ready to plant a garden be-
cause we was all going to be on the soup line," and also
stated that "they would close the plant down before the
union would come in." Smith also told them that Win-
bourne (Stanley Winbourne, the owner and president of
General Wood and a former Bowlby employee) was
going to buy the plant. The testimony of Bryant con-
cerning the remarks made by Supervisor Jimmie Smith
was corroborated by local sales employee Alexander
Hall who testified that Jimmie Smith walked up to him
and asked what he thought of the Union, to which Hall
replied that he was all for it. Smith then told him it
would not work, that "they" would sell the plant before
they had a union in it and that Hall had best plant a
garden and stock up on soup. Hall testified that Bryant
and another employee then walked up and Smith repeat-
ed these comments to them. Bryant also testified that on
10 April, Jimmie Smith told Bryant the employees would
lose benefits if the Union came in and specifically men-
tioned the loss of "Boot money" as a benefit to be lost.
(c) Oliver Munn, a forklift operator in the framing de-
partment who had been employed by Bowlby from Oc-
tober 1979 to June 1984, testified that on 4 April he was
walking alongside Supervisor Jimmie Smith, Tom
(Thomas) Greene (Bowlby's production manager), and
employee Palmer Hatcher, Hatcher yelled out "what
time is it?" Munn responded, "union time" and Smith
said, "you'all are going to wind up in the soup line."
(d) George Jenkins, a pole machine operator, who was
employed by Bowlby in 1983 testified that in February
Smith asked him what he thought of the Union, and he
told Smith he hoped the Union got in for better benefits.
(e) John Ganey, a forklift operator and pole bander,
who was employed by Bowlby since 1979, testified that
in March his supervisor, Percy Burns, told him that if
they kept going the way they were with the Union, the
place was going to shut down.
(f) Greg Burton, a boiler room employee who had
been employed by Bowlby since May 1982, testified that
in late March, Supervisor Bill Caldwell told him that
when you sit down to bargain you lose all existing bene-
fits to which Burton replied this was not true.
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(g) Employees Michael Robinson and Paul Bowens
testifified concerning a meeting held by Respondent
Bowlby's president, Richard Bowlby, and Plant Manager
Carl Williams at which Bowlby was questioned concern-
ing threats by Williams and testified that Bowlby told
them he would ship his poles out where he could get
them peeled cheaper if the Union came in.
2. Analysis
I credit the unrebutted testimony of these employees. I
find that the statement of Supervisor Gary Wood to
Larry Brown that the employees would lose paid holi-
days and would have to start from scratch again if the
Union were selected by the employees was an unlawful
threat and that Respondent Bowlby violated Section
8(a)(1) thereby. I find that the statement of Plant Manag-
er Carl Williams to employees Larry Brown, Michael
Robinson, Paul Bowens, and several other employees
that they and he might as well look for another job if the
Union came in was an unlawful threat of plant closure
and the loss of their jobs, and that Respondent Bowlby
violated Section 8(a)(1) of the Act thereby. I find that
the statements made by Supervisor Jimmie Smith to em-
ployees Warren Bryant and Alexander Hall that if the
Union were to come in everyone should plant a garden
because they were going to be on the soup line and that
the plant would be closed before the Union would come
in were unlawful threats of job loss and plant closure
and that Respondent Bowlby violated Section 8(a)(1) of
the Act thereby. I find that the statement made by Su-
pervisor Jimmie Smith to employee Warren Bryant that
the employees would lose benefits and specifically men-
tioning "Boot Money" if the Union were to come in was
an unlawful threat of loss of benefits and that Respond-
ent Bowlby violated Section 8(a)(1) of the Act thereby, I
find that the statement of Supervisor Jimmie Smith fol-
lowing Munn's reference to "union time" that the em-
ployees were all going to end up in the soup line was an
unlawful threat of job loss and that Respondent thereby
violated Section 8(a)(1) of the Act. I find that Smith's in-
terrogation of employee George Jenkins concerning
what he thought of the Union was unlawful as it did not
occur in an environment free of unfair labor practices
but was part of an overall campaign of interrogation and
coercion by Bowlby and that Respondent Bowlby violat-
ed Section 8(a)(1) of the Act. I find that the statement of
Supervisor Percy Burns to employee John Ganey that if
the employees kept going the way they were with the
Union, the place would shut down, was an unlawful
threat of plant closure and that Respondent Bowlby vio-
lated Section 8(a)(1) of the Act thereby. I find that Su-
pervisor Bill Caldwell's statement to employee Greg
Burton that when you sit down to bargain you lose all
benefits was an unlawful threat of loss of benefits if the
employees selected the Union, and that Respondent
Bowlby violated Section 8(a)(1) of the Act. I find that
the statement of President Richard Bowlby that if the
Union came in he would ship poles out and get them
peeled cheaper was an unlawful threat of subcontracting
work if the Union were selected by the employees and
that Respondent Bowlby violated Section 8(a)(1) of the
Act thereby.
B. The 30 March Letter from President Richard
Bowlby to the Employees
In his 30 March letter to the employees, Bowlby
states, "There are no problems that exist in this plant that
we cannot work out among ourselves without the high
risk the union brings. This much I promise you—we will
work out our problems—we will do this with or without
the union. We can do it easier and better without the
union." He further stated in the letter, "think carefully
about this union and what it can cost you. You know
what you now have, Don't vote yourself into a sea of
trouble." On 13 April, Richard Bowlby directed a letter
to employee Gregory Burton who was one of the leaders
of the union campaign among the employees. This letter
followed the cancellation of the scheduled 7 April elec-
tion. In the 13 April letter Bowlby informed Burton that
warning notices previously issued to employees were
being removed, meetings between management and the
employees would be regularly scheduled, and that em-
ployees could call or write him at anytime.
1. Analysis
I find that the promise of Richard Bowlby to "work
out our problems" was an unlawful promise of benefits in
order to induce the employees to reject union representa-
tion as demonstrated by Bowlby's letter to Burton and
that Respondent Bowlby thereby violated Section 8(a)(1)
of the Act. I find that Bowlby's reference to the "high
risk" the Union would bring and his statement that the
employees should not "vote yourself into a sea of trou-
ble," were unlawful unspecified threats of reprisal if the
employees chose union representation and that Respond-
ent Bowlby thereby violated Section 8(a)(1) of the Act.
2. Warnings and suspension
The General Counsel introduced evidence through the
testimony of several employees who supported the
Union's campaign and who had engaged in the walkout
in February that they received warnings and suspensions.
Respondent Bowlby's production manager, Thomas
Greene, who had commenced his own employment with
Bowlby in December 1983, contended that he initially
commenced issuing disciplinary warnings in January
after he settled into his new job and had an opportunity
to observe the employees. As the General Counsel points
out in his brief, however, there was no evidence of the
disciplinary actions taken by Greene until after the Feb-
ruary 1984 walkout by the employees. Rather, the evi-
dence showed that warnings and in one case a suspension
were issued to known union supporters.
(a) Warren Bryant engaged in the February walkout
by employees, signed the union petition, wore a "Vote
Yes" pin for about a week, and discussed the Union with
other employees in the shipping yard and told them to
support the Union for better conditions.
On 21 May, Bryant was absent as a result of car trou-
ble and called his foreman, Jimmie Smith, who told him
to hurry up and come in. He was unable to get the car
fixed and reported the next day and was called into the
office by Greene who issued him a written warning for
GENERAL WOOD PRESERVATIVE CO. 961
not reporting to work. He told Greene he had called
Jimmie Smith and Greene told him he should have come
in anyway. Bryant told Greene he had no transportation
and Greene said it was Bryant's problem. Bryant testified
he had never before received a warning for an excused
absence. The record evidence shows that employees re-
ceived warnings only in those instances when they did
not call in as shown in the warnings issued to Larry D.
Brown and Gregory Burton.
(b) Warren Jacobs engaged in the February walkout,
attended several union meetings, signed the union peti-
tion, passed out union leaflets at the plant gate, and ob-
tained the signatures of several other employees on the
Union's petition. His supervisor, Percy Burns, was aware
of his support for the Union. On 21 May, Jacobs re-
ceived a written warning from Greene for being late al-
though he had brought a doctor's excuse. He was un-
aware of any prior case when an employee was issued a
warning when he had a doctor's excuse.
(c) George Jenkins attended the union meeting in Feb-
ruary and signed the union petition. He also discussed his
support for the Union with employees at work and with
his supervisor, Kenny Smith, who had asked him what
he thought about the Union. He told Smith he "hoped
they got the union in so that it would help in paying
better benefits."
On 27 February he stopped the pole machine he was
operating because it was raining hard. His supervisor,
Kenny Smith, asked, why the machine was stopped, and
he told him because it was raining too hard. Smith then
told him he could wait 5 or 10 minutes until the rain
slackened to restart the machine. On 28 February he re-
ceived a written warning from Production Manager
Greene for being "unwilling to work due to the weather
conditions."
On 2 March the employee he rode to work with
became ill and be asked Smith if Jenkins could leave
work early with the other, employee and Smith agreed.
The next day Smith told him to see Greene who then
told him to work harder and faster. On cross-examina-
tion he testified that when he had asked to leave early,
Smith told him to see Greene who told him to drive his
own car every day as he needed him at work, and he
then left with the other employee.
When Greene was questioned by the General Counsel
concerning the rain incident, he testified that other em-
ployees had not walked off because of the rain but later
acknowledged that he was not certain what had hap-
pened as he was not there at the time.
(d) Greg Burton was one Of the initial leaders of the
union movement among Respondent Bowlby's employ-
ees and an active participant as a representative on behalf
of its employees. Burton was involved in the walkout of
February. It was Burton who initially contacted Mike
Kryvosh of the Industrial Union Department (IUD) of
the AFL-CIO and later met with Michael Black, a coor-
dinator for the IUD at the International Longshoremen
Association's union hall. Burton sighed the union petition
and was designated as the spokesman for the employees
who signed the petition. He clipped signs on, wore T-
shirts saying 100 percent 'union and spoke in plant meet-
ings held by Williams and Greene. He solicited and ob-
tamed the signatures of other employees on the petition
for the Union. On one occasion in March he spoke to
Greene on behalf of employee Alonzo Green and told
Tom Greene he was "ready to file." Tom Greene re-
sponded there was no union and he told Greene there
were a majority of employees in favor of the Union, and
they were a union whether Greene recognized the Union
or not. Greene responded that "some people are leaders,
some followers and some agitators." Burton also met
with President Bowlby concerning the employees' com-
plaints in April, and Bowlby replied to Burton in his
letter of 13 April wherein he addressed a number of
items complained of by Burton and informed Burton that
there was a communication problem between Burton and
the Company and urged that channels of communication
outlined in the letter be kept open.
On 13 June Tom Greene gave Burton a written warn-
ing (G.C. Exh. 30) issued on 12 June setting out days
that Burton had been late or absent including an early
leave of 11 June. Burton testified that he had received
permission to leave early on 11 June from his supervisor,
Ted Sweeney, and from Greene. Immediately after issu-
ing the written warning to Burton on 13 June, Greene
filled out a written 3-day suspension (G.C. Exh. 31) on
Burton for his failure to show up for work on 12 June
and also based on the written warning of 12 June that he
had first handed to Burton. Greene acknowledged on
cross-examination that he did not recall discussing with
Burton the circumstances of the early leaves on 7 and 11
June, and conceded that Burton had called in on one oc-
casion of being late.
3. Analysis
I find that the General Counsel has made a prima facie
ease that the warnings issued to four known union sup-
porters—Bryant, Jenkins, Jacobs, and Burton—and the
suspension issued to Burton were motivated by the dem-
onstrated animus of Respondent Bovvlby directed against
the Union as evidenced by the unlawful 8(a)(1) conduct
by Bowlby as found supra. As the General Counsel
points out in his brief, these actions were taken after the
advent of the union campaign and showed Respondent
Bowlby's marked interest in enforcing rules against these
employees that had not been enforced in the past. As Re-
spondent Bowlby did not appear and the testimony of
the employees was unrebutted with the exception of the
testimony of Greene who ultimately conceded he was
not familiar with the circumstances leading to certain of
the disciplinary actions, I find that Respondent Bowlby
has failed to rebut the prima facie case established by the
General Counsel.
I find that the warnings issued to employees Jenkins,
Bryant, and Jacobs and the warnings issued to Burton on
12 June were discriminatorily motivated and that Re-
spondent Bowlby thus violated Section 8(a)(3) and (1) of
the Act. As the 3-day suspension issued to Burton by
Greene on 13 June was in part based on the unlawful
warning issued on 12 June, I find that the suspension was
also unlawful and that Respondent Bowlby also violated
Section 8(a)(3) and (1) of the Act thereby. I further fmd
based on the foregoing that Respondent Bowlby's en-
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forcement of its rules as set out above and as referenced
in the letter by President Bowlby to Burton was viola-
tive of Section 8(a)(1) and (3) of the Act. The record as
a whole reflects that Respondent Bowlby had not rou-
tinely or systematically enforced its rules concerning tar-
diness, absenteeism, and work performance in the past
until the advent of the Union's campaign. The unrebut-
ted testimony of the employees concerning the enforce-
ment of these rules after the advent of the Union's cam-
paign as contrasted with no evidence of their enforce-
ment in the past and as referenced in the Richard
Bowlby's letter of 13 April and the evidence of Bowlby's
union animus has demonstrated by a preponderance of
the evidence that Respondent Bowlby's sudden enforce-
ment of long-ignored rules was discriminatorily motivat-
ed as a response to the Union's campaign and I find that
Respondent Bowlby thereby violated Section 8(a)(1) and
(3) of the Act. D. V. Copying, 240 NLRB 1276, 1286
(1979).
4. The unit packing allegations
It is clear from the evidence that as of 12 February at
the advent of the union campaign, the appropriate bar:
gaining unit consisted of no more than 64 employees. Re-
spondent Bowlby's management and supervisors interro-
gated and threatened its employees concerning their
union sympathies. It then brought in approximately 25
employees from West Virginia, Kentucky, Ohio, and
Virginia and placed them on its list of employees to vote
in the scheduled representation election.
Both employees Alexander Hall and Greg Burton dis-
covered through conversations with certain of these im-
ported employees that they were brought in for the ex-
press purpose of voting in the scheduled 6 April repre-
sentation election and would leave the day following the
election. As a result of charges filed by the Union, the
election was blocked and all but four of the employees
left on 7 April as testified to by Burton and as demon-
strated by the lack of working hours accorded to these
employees on subsequent lists of employees that contin-
ued to carry their names.
During the period of their employment at the Leland
plant, the imported employees were segregated from the
other employees and were housed in a motel paid for by
Respondent Bowlby, were fed from specially catered
trucks, and were not required to wear shirts or hard hats
as required of other employees.
5, Analysis
Based on the foregoing unrebutted testimony and the
record as a whole, I find that Bowlby engaged in unit
packing in an attempt to capture the election and thus
violated Section 8(a)(1) of the Act. I also find as alleged
and contended by the General Counsel that unit packing
is a hallmark violation as it is an attack on the entire
election process and the essential freedom of choice re-
quired for fair elections and is analogous to fraudulent
voter registration in public elections. Maxi Mart, 246
NLRB 1151 (1979).
C. The Alleged Refusals to Hire by Respondent
General Wood
The complaint alleges and the General Counsel con-
tends that employees Charles Brown, Oliver Munn,
George Jenkins, Warren Bryant, Freddie Brown, John
Ganey, and Greg Burton were not hired by Respondent
General Wood because they joined or assisted the Union
or engaged in other union or concerted activities with
other employees for the purpose of collective bargaining
and mutual aid and protection. The evidence as set out,
supra, reveals that these employees signed the petition
and were open union supporters.
Several of the employees had been interrogated or
threatened and issued warnings. Burton had been sus-
pended. On 20 June Stanley Winbourne, president of
General Wood and a former official of Bowlby, ad-
dressed Bowlby's employees and announced that Re-
spondent Bowlby had been purchased by General Wood,
that there would be a brief cessation of work and a shut-
down of the plant of approximately 2 weeks, and that
the plant would be reopened by General Wood in early
July. He assured all of the employees that they should
file applications in early July. He also told them that he
was not in favor of the Union, but that the decision was
up to them. He also told them they would start with
clean slates, that their benefits would not be reduced,
and if General Wood did well they would be buying
new cars each year. Subsequently, on 28 June the Union
sent a mailgram to Winbourne stating its continued ma-
jority interest, advising of the commission of the afore-
mentioned unfair labor practices, and making a demand
for recognition.
The record evidence reveals that the 7 alleged discri-
minatees applied for employment in early July with Gen-
eral Wood as requested by Winbourne on 20 June, but
had not been hired to the date of the hearing although
General Wood hired approximately 25 employees from
Bowlby's employee complement in the unit, 10 of a total
of 12 of whom had not signed the union petition. Only 2
employees who had not signed the petition were not
hired whereas only 4 of the 26 employees who had
signed the initial union petition at the February meeting
were hired. After the establishment of the initial core of
employees, General Wood commenced to hire new em-
ployees, most of whom had no prior experience at a
wood treatment plant and ignored the remainder of the
experienced employee complement.
The record demonstrates that the seven alleged dis-
criminatees litigated at the hearing were experienced em-
ployees and most had performed more than one job.
Their testimony, which I credit, demonstrates that they
had generally not been the subject of disciplinary action
with the exception of the warnings and suspension found
unlawful, supra. Thus, Bryant had never received a
warning or had disciplinary action taken against him
concerning his job performance and had worked in the
framing department and on the tow line in addition to
his duties as a forklift operator. Munn had never been
warned or disciplined concerning his work performance.
Charles Brown was an experienced pole grader who had
trained two or three other employees as pole graders and
-r , -
GENERAL WOOD PRESERVATIVE CO. 963
had never been disciplined concerning his work perform-
ance. Freddie Brown was a pole framer who had been
employed for 5 years by Bowlby and received only one
verbal warning for unsatisfactory job performance on a
single occasion. He had been evaluated twice by his su-
pervisor and was never told his work was unsatisfactory.
Jenkins was an experienced pole machine operator.
Ganey was an experienced forklift operator and had also
banded poles. During his 5-year tenure with Bowlby,
Gamey had failed to tighten a plug on one occasion that
caused an oil leak and $5000 damage to an engine. How-
ever, he had never received any disciplinary action as a
result of his work performance. Burton had served as
welder helper, worked in the boiler room for 12 months,
and only 2 or 3 weeks prior to the 20 June closure of
Bowlby had been transferred to the position of pole
pointer. There was no evidence that Burton had been
disciplined for his work performance with the exception
of the warnings and suspension discussed that related to
absenteeism and a warning he had received for smoking
in a nondesignated as opposed to a restricted area.
When the alleged dicriminatees filed their applications,
none received an interview. When they inquired con-
cerning their prospects, they were referred to Greene
who had been hired as the production manager for Gen-
eral Wood. Greene told those who inquired of him that
he had no openings. Ganey was told to stay by the
phone. None of the seven were recalled to work.
Winbourne did not testify. Greene testified at the hear-
ing that he had recommended against hiring several em-
ployees, but that General Wood Operations Manager
Steve Hutchinson had made the decisions. This differed
from earlier statements he had made to a Board agent
during the investigation of this case. At the hearing
Greene testified that he did not recall the reason he had
given the Board agent for not hiring Burton or Munn.
Greene testified at the hearing that he recommended
against the hire of Jenkins because of performance prob-
lems with Jenkins' work. Greene testified at the hearing
that Hutchinson had made the decision not to hire
Ganey, but acknowledged that when he met with the
Board agent investigating the case, he had cited the lack
of a second shift as the reason for not hiring Ganey.
Greene had told the Board agent that Freddie Brown
had limited flexibility in the framing work. He further
acknowledged that at the time he made various represen-
tations to the Board agent, he was aware that several of
these employees had not been considered by Hutchinson
for rehire.
Steve Hutchinson, General Wood's operations manag-
er, testified that he followed Greene's recommendation
not to hire Jenkins and Charles Brown, but that he de-
cided not to hire the other alleged discriminatees based
on his observations of them when he had worked at
Bowlby from 1973 to 1983 in some cases and because of
the condition of equipment operated by them in others.
, Analysis
I find that the General Counsel has established a prima
facie case that the failure of General Wood to hire the
alleged discriminatees was motivated by their engage-
ment in concerted activities in support of the Union's
campaign. It is clear that the seven alleged discriminatees
were known union supporters, several of whom had been
subjected to interrogation and threats and one of whom
had been suspended by Bowlby's Production Manager
Greene. It is also clear, and I find, that Greene was in
charge of the hiring of new employees or at least effec-
tively recommending such hire as General Wood's pro-
duction manager. I find that the circumstances support
the inference that Hutchinson, as well as Greene, had
knowledge of the union activities of the employees of
Bowlby. I do not credit the testimony of Greene or
Hutchinson that the alleged discriminatees were not
hired for work-related reasons. I find Greene's testimony
to be inconsistent in many respects and his lack of recall
and the lack of documentation of the reasons for not
hiring these employees to be detrimental to his overall
credibility as well as his acknowledgement that when he
met with a Board agent in the investigation of this case,
he did not inform him that Hutchinson had allegedly
made the hiring decisions as he later testified at the hear-
ing. I also do not credit Hutchinson's testimony that his
decisions not to hire these employees were based on his
past recollection of,them in 1983 and prior thereto and as
a result of the condition of equipment operated by cer-
tain of the employees. I also rely on the statistics cited
by the General Counsel that 10 of the 12 nonsigners of
the petition were hired whereas only 4 of the 26 signers
of the petition were hired and find these statistics show a
clear pattern of discrimination against the union support-
ers. I have also considered the lack of plausibility of Re-
spondent General Wood's contentions and stated reasons
for not hiring the alleged discriminatees (all of whom
were experienced employees and the resort to new em-
ployees most of whom were inexperienced in General
Wood's business). I thus find that Respondent General
Wood has failed to rebut the prima facie case established
by the General Counsel, and I find by a preponderance
of the evidence that Respondent General Wood violated
Section 8(a)(3) and (1) of the Act by its refusal to hire as
employees Charles Brown, Oliver Munn, George Jen-
kins, Warren Bryant, Freddie Brown, John Ganey, and
Greg Burton. Wright Line, 251 NLRB 1083 (1980); Rouse
Bertrand Dupont, 271 NLRB 443 (1984); NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983); Hunter
Douglas, Inc., 277 NLRB 1179 (1985). See also Tilden
Arms Management Co., 276 NLRB 1111 (1985). See also
Food & Commercial Workers Local 152 (Spencer Foods),
268 NLRB 1483, 1486 (1984), enfd. in relevant part 768
F.2d 1463 (D.C. Cir. 1985), re: subjecting former em-
ployees to more rigid standards than new applicants in
hiring evaluations.
D. The Majority Issue
The record established that as of 12 February there
were 64 employees in the appropriate unit as derived
from the payroll register of that date listing a total of 86
persons minus 21 persons identified by Production Man-
ager Greene as supervisors, office clericals, guards, a
procurement forester, a quality control inspector, and a
dispatcher at the hearing. The signatures of 42 of the em-
ployees were authenticated on the petition through the
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
identification of their signatures by the employees them-
selves, by witnesses who saw the employees place their
signatures on the petition, by the comparison of hand-
writing samples by me at the hearing, and by the testi-
mony of IUD Coordinator Black who testified concern-
ing the signatures of the employees at a meeting held in
February for the purpose of organizing a union. The
single purpose authorization petition states that the em-
ployees authorize the AFL-CIO or its appropriate affili-
ate to represent them in collective bargaining with their
employer. At a subsequent meeting, according to the un-
rebutted testimony of Black that I credit, the employees
chose the Woodworkers Union as their designated union.
There was no evidence of any employee's attempt to
revoke his signature. The lack of designation of the
Union at the initial time of signing is not a legal impedi-
ment to the obtainment of majority status. The authenti-
cated signatures of 42 of the 64 employees in the appro-
priate unit of February clearly gave the Union a majority
and I so find. Burlington Industries, 257 NLRB 712
(1981).
E. The Bargaining Order
I find that a bargaining order should issue against Re-
spondent Bowlby in view of Bowlby's unlawful interro-
gation, threats, disciplinary warnings, and a suspension of
its employees, and most significantly in its packing of the
unit by importing employees to subvert the election
process which dissipated the Union's majority, and also
in view of the threats of plant closure, subcontracting
out of work, and job loss engaged in by Respondent
Bowlby including its threat of subcontracting and that of
unspecified reprisals issued by its president. The threats
of plant closure, job loss, and subcontracting, as well as
the unit packing, clearly constitute hallmark violations.
The combination of these hallmark violations and the im-
possibility of remedying these violations by Bowlby as a
result of its sale of the plant clearly demonstrate that it is
no longer possible to conduct a free and fair election.
Regency Manor Nursing Home, 275 NLRB 1261 fn. 3
(1985); Maxi Mart, supra at fn. 4
F. The Successor Issue
The undisputed evidence clearly establishes that Gen-
eral Wood is engaged in the same business of chemically
treating wood, including telephone poles, fence posts,
pilings, and other items, and sells to substantially the
same customers as Bowlby. By the sale of the assets of
Bowlby to General Wood on 29 June, General Wood
purchased and received the physical facility and plant in-
cluding production equipment, vehicles, and inventory.
General Wood commenced production on 9 July and by
the end of July had hired employees in virtually all pre-
existing production and maintenance classifications of its
predecessor Bowlby. Over 60 percent of General Wood's
employees had been employed at Bowlby, and the super-
visory force remained virtually unchanged from that of
Bowlby including the retention of Greene as production
manager. I thus find that General Wood is a successor of
Bowlby. Aircraft Magnesium, 265 NLRB 1344 (1982). I
also find that General Wood obtained successorship
status at least by the end of July when it had hired em-
ployees in the preexisting classifications and employed a
complement of 44 unit employees. I reject Respondent
General Wood's contention that the relevant date for ex-
amining the employee complement should be 18 Septem-
ber when it expanded the number of its shifts as this ex-
pansion was highly uncertain in July, according to the
testimony of Greene. Indianapolis Mack Sales, 272 NLRB
690 (1984). See also Metropolitan Teletronics Corp., 279
NLRB 957 fn. 16 (1986).
G. The Bargaining Obligation of General Wood
Unrebutted documentary evidence of the mailgram
sent by the Union and the testimony of the employees as
set forth above concerning the remarks made by Win-
bourne on 20 June to the employees concerning the
Union clearly establishes that General Wood had actual
notice of the unfair labor practices of Bowlby prior to its
purchase from Bowlby. Moreover, the knowledge of
Bowlby's Production Manager Greene thereof, who was
hired by General Wood in the same capacity, is imputed
to General Wood.
As the General 'Counsel contends, it is well settled that
a successor may be ordered to remedy the unfair labor
practices of its predecessor, citing Golden State Bottling
Co. v. NLRB, 414 U.S. 168 (1973); and that in appropri-
ate cases the Board has required successor employers to
abide by Gissel orders issued against predecessors par-
ticularly on cases wherein the successor's conduct is a
continuation of the predecessor's campaign to erode the
Union's majority status, and this is so even in those cases
wherein no prior bargaining order had been issued
against the predecessor, citing Carlton 's Market, 243
NLRB 837, 845 (1979), enfd. 642 F.2d 350 (9th Cir.
1981).
In the instant case, the acts of General Wood by un-
lawfully refusing to hire known union adherents as found
herein were clearly calculated to subvert the election
process in order to assure a lack of union support. The
passage of time and the turnover of supervisory person-
nel at General Wood do not serve to obliterate its bar-
gaining obligation as a successor. Keystone Pretzel Bakery,
256 NLRB 334, 335 (1981), enfd. 696 F.2d 257 (2d. Cir.
1983). I find a bargaining order should issue against Gen-
eral Wood as a successor of Bowlby in this case. See also
Tilden Arms Management, supra.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices of Respondents Bowlby and
General Wood as found herein have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several states and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondents Burke-Parsons Bowlby and General
Wood Preservative Company are each employers en-
gaged in commerce within the meaning of Section 2(6)
GENERAL WOOD PRESERVATIVE CO. 965
and (7) of the Act, and General Wood Preservative is a
successor to Burke-Parsons Bowlby.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By the interrogation and threats issued to its em-
ployees and unlawful promises of benefits and by engag-
ing in unit packing found herein, Respondent Bowlby
violated Section 8(a)(1) of the Act.
4. By the disciplinary warnings issued to its employees
George Jenkins, Warren Bryant, Warren Jacobs, and
Greg Burton as found herein and by the suspension of its
employee Greg Burton, and by the more stringent en-
forcement of its work rules, Respondent Bowlby violated
Section 8(a)(3) and (1) of the Act.
5. The appropriate unit of the employees of Respond-
ent Bowlby and its successor General Wood is:
All production and maintenance employees em-
ployed at the Employer's Leland, North Carolina,
facility; excluding office clerical employees, techni-
cal employees, professional employees, guards and
supervisors within the meaning of the Act.
6. As of 12 February 1984, the Union represented a
majority of the employees of Respondent Bowlby in the
aforesaid appropriate unit.
7. Respondent General Wood Preservative Company
violated Section 8(a)(3) and (1) of the Act by its refusal
to hire employees Charles Brown, Oliver Munn, George
Jenkins, Warren Bryant, Freddie Brown, John Ganey,
and Greg Burton.
8. The above violations as found have an effect on
commerce within the meaning of the Act.
THE REMEDY
Having found that Respondents Bowlby and its suc-
cessor General Wood have engaged in certain unfair
labor practices, I shall recommend that they cease and
desist therefrom and take the following affirmative ac-
tions, including posting of an appropriate notice, de-
signed to effectuate the policies of the Act.
Having found that Respondent Bowlby violated Sec-
tion 8(a)(3) and (1) of the Act by its issuance of written
warnings to its employees and by the suspension of Greg
Burton, it and General Wood as its successor shall be or-
dered to remove from its personnel records any refer-
ence to warnings and suspension and to make Greg
Burton whole for any loss of earnings or benefits sus-
tained as a result of his suspension. Having found that
Respondent General Wood unlawfully failed and refused
to hire employees Charles Brown, Oliver Munn, George
Jenkins, Warren Bryant, Freddie Brown, John Ganey,
and Greg Burton because of their union activities, Re-
spondent General Wood shall be ordered to offer to hire
the employees. Respondent General Wood shall also
make the aforesaid employees whole for any loss of earn-
ings or benefits suffered as a result of the discrimination
against them, with interest thereon to be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950); and Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
I recommend that General Wood should be ordered to
bargain with the Union in order to remedy the violations
committed by its predecessor Bowlby which had the
effect of dissipating the attained majority status of the
Union and rendered impossible the holding of a free and
fair election and which violations were continued by
General Wood by its unlawful refusal to hire union sup-
porters as found herein.
I also find under the circumstances of this case involv-
ing threats of plant closure, loss of jobs, subcontracting,
warnings and suspensions, unit packing by Bowlby
order to dissipate the Union's majority, the ultimate shut-
down and sale of the business to General Wood, and the
continuation of the unfair labor practices by General
Wood, that a visitatorial order is appropriate to ensure
that the unfair labor practices are fully and promptly
remedied, including the order to hire the discriminatees
with backpay. See Hilton Inn North, 279 NLRB 45
(1986).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, General Wood Preservative Compa-
ny, Leland, North Carolina, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union sympathies.
(b) Threatening its employees with plant closure, sub-
contracting, job loss, loss of benefits, or unspecified re-
prisals if they engage in union activities.
(c) Promising employees that their problems would be
worked out without the Union.
(d) Issuing disciplinary warnings or suspension to its
employees and more stringently enforcing work rules be-
cause of their support for the Union.
(e) Packing the bargaining unit with other employees
in order to dissipate the Union's majority.
(t) Refusing to hire employees because of their union
activities and sympathies.
(g) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain collectively with
International Woodworkers of America, AFL—CIO as
the exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and conditions
of employment and, if an understanding is reached,
embody the understanding in a signed agreement. The
appropriate unit is:
4 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees em-
ployed at the Employer's Leland, North Carolina
facility; excluding office clerical employees, techni-
cal employees, professional employees, guards and
supervisors within the meaning of the Act.
(b) Offer to hire employees Charles Brown, Oliver
Munn, George Jenkins, Warren Bryant, Freddie Brown,
John Ganey, and Greg Burton.
(c) Remove from its files any reference to the unlawful
warnings issued to employees George Jenkins, Warren
Bryant, Warren Jacobs, and Greg Burton and the sus-
pension issued to employee Greg Burton, and notify
them in writing of this and that these warnings and sus-
pension shall not be used as a basis for future personnel
actions concerning them.
(d) Make whole employees Charles Brown, Oliver
Munn, George Jenkins, Warren Bryant, Freddie Brown,
John Ganey, and Greg Burton for its unlawful refusal to
hire them and Greg Burton for its unlawful suspension of
him with full backpay and benefits with interest in ac-
cordance with the remedy section with no loss of senior-
ity or other rights and benefits to which they would
have been entitled but for the unlawful discrimination
against them.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying all pay-
roll records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this recommended Order. For the purpose of determin-
ing or securing compliance with this Order, the Board or
any of its duly authorized representatives may obtain dis-
covery from Respondent, its officers, agents, successors,
or assigns, or any other person having knowledge con-
cerning any compliance matter, in the manner provided
by the Federal Rules of Civil Procedure. Such discovery
shall be conducted under the supervision of the United
States court of appeals enforcing this Order and may be
had upon any matter reasonably related to compliance
with this Order, as enforced by the court.
(f) Post at its facility in Leland, North Carolina, copies
of the attached notice marked "Appendix." 5 Copies of
the notice, on forms provided by the Regional Director
for Region 11, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.6
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
6 Respondent General Wood's motions to dismiss the 8(a)(3) allega-
tions against it and for summary judgment with respect to the bargaining
order and to strike the General Counsel's request for a visitatorial provi-
sion are denied
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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT coercively interrogate employees con-
cerning their union sympathies.
WE WILL NOT threaten employees with plant closure,
subcontracting, job loss, loss of benefits, or unspecified
reprisals because of their union activities or sympathies.
WE WILL NOT promise employees that their problems
will be worked out without the Union.
WE WILL NOT issue disciplinary warnings or suspen-
sions to employees or more stringently enforce work
rules because of their union activities or sympathies.
WE WILL NOT engage in unit packing in order to dissi-
pate the Union's support.
WE WILL NOT refuse to hire employees because of
their union activities or support.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in their rights guaranteed
them under Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
International Woodworkers of America, AFL-CIO, and
embody in a written agreement any understanding
reached therein concerning the terms and conditions of
employment for our employees in the following appro-
priate bargaining unit:
All production and maintenance employees em-
ployed at the Employer's Leland, North Carolina
facility; excluding office clerical employees, techni-
cal employees, professional employees, guards and
supervisors within the meaning of the Act.
WE WILL offer to hire as our employees Charles
Brown, Oliver Munn, George Jenkins, Warren Bryant,
Freddie Brown, John Ganey, and Greg Burton, and WE
WILL make them whole for any loss of earnings or bene-
fits they have sustained with interest and with no loss of
seniority of other rights to which they would have been
entitled absent our unlawful refusal to hire them, and
notify them in writing thereof.
WE WILL remove from our records any reference to
the unlawful warnings issued to employees George Jen-
kins, Warren Bryant, Warren Jacobs, and Greg Burton
GENERAL WOOD PRESERVATIVE CO. 967
and to the suspension issued to employee Greg Burton,
and WE WILL make Greg Burton whole for any loss of
earnings or benefits he may have sustained by reason of
our unlawful suspension of him and will notify each of
the above employees of these actions in writing thereof.
Our employees have the right to join and support
International Woodworkers of America, AFL-CIO, or
to refrain from doing so.
GENERAL WOOD PRESERVATIVE COMPANY