Liberty Natural Products

National Labor Relations Board - Board Decisions

Jul 29, 1994

314 N.L.R.B. 630 (N.L.R.B. 1994)

630
314 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order and substitute
a new notice to more closely reflect the violations found.
3 Par. 3(a) of the complaint also alleges the supervisory status of
President and Owner James Dierking, and Vice President Jerry
Smith. The Respondent’s answer states in pertinent part as follows:
‘‘Admits Paragraph 3(a), but denies allegation to the extent that it
my [sic] exclude employees who may be in a professional or mana-
gerial positions [sic] within the meaning of Section 2(11).’’
We construe the Respondent’s answer as an unambiguous admis-
sion of the supervisory status of Hatter, Dierking, and Smith, and
as a claim that the list may not be exhaustive, i.e., that there may
be others occupying positions falling within the definition set forth
in Sec. 2(11) of the Act. In this connection, we note that, consistent
with our reading of its answer, at the hearing the Respondent took
the position that Charging Party Heather Crumbaker was a statutory
supervisor.
4 In affirming the judge’s finding that the employee activity in
issue here was concerted within the meaning of the Act, Chairman
Gould and Member Browning decline to rely on, and question the
continuing vitality of, Meyers Industries, 268 NLRB 493 (1984), re-
manded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985), reaffd. 281 NLRB 882 (1986),
affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988).
Liberty Natural Products, Inc. and Jerry J. Smith
and Heather Crumbaker and Kelli A.
Cunningham. Cases 36–CA–6984, 36–CA–6986,
and 36–CA–6987
July 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On February 25, 1994, Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The General Counsel filed a limited exception and a
brief in support of the judge’s decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.2
The General Counsel has excepted to the judge’s
finding that the General Counsel failed to prove that
Don Hatter was a statutory supervisor and to the
judge’s failure to find that remarks made by Hatter to
employees violated Section 8(a)(1) of the Act as al-
leged in the complaint. We find merit in the General
Counsel’s exception.
Paragraph 3(a) of the complaint alleges, inter alia,
that at all material times, Operations Manager Don
Hatter was a statutory supervisor within the meaning
of Section 2(11) of the Act and an agent of the Re-
spondent within the meaning of Section 2(13) of the
Act. The Respondent in its answer admitted this alle-
gation.3 At no time did the Respondent retract its ad-
mission. The issue was not litigated at the hearing be-
cause the General Counsel was entitled to rely on the
Respondent’s admission. See Bogart Industries, 196
NLRB 189 (1972), enfd. in relevant part 485 F.2d
1203 (5th Cir. 1973). Accordingly, we find, contrary to
the judge, that Hatter was a statutory supervisor at all
material times.
Turning to the merits, the record shows, and the
judge found, that on December 2, 1992, the Respond-
ent’s employees were talking among themselves about
the unfairness of the Respondent’s policy of not giving
employees their paychecks until 3 business days after
the close of the pay period. Charging Party Heather
Crumbaker suggested to other employees that a peti-
tion be given to President Dierking. Crumbaker then
prepared the petition, showed it to other employees
who signed it, and left it in Dierking’s office. The peti-
tion, which is quoted in the judge’s decision, expressed
the employees’ discontent with the Respondent’s pay-
roll policy and salary levels.
The following day, employees Victoria Rawlinson
and Lisa Dokas were talking about the petition when
Operations Manager Hatter approached and shouted at
both women, while pointing his right finger for empha-
sis, ‘‘That was very stupid of you to sign that petition!
You should know better than that!’’
The judge found, and we agree, that the preparation,
circulation, and signing of the employee petition con-
stituted protected concerted activities.4 Therefore, we
conclude that Hatter’s angry expression of displeasure
with the two employees for signing the petition vio-
lated Section 8(a)(1) of the Act because it would rea-
sonably cause them to fear future reprisal for engaging
in such activities.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 5, and renumber the sub-
sequent paragraph.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Lib-
erty Natural Products, Inc., Portland, Oregon, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
631LIBERTY NATURAL PRODUCTS
1 All dates herein refer to 1992 unless otherwise indicated.
‘‘(c) Interrogating employees concerning their pro-
tected concerted activities and threatening them if they
seek to engage in protected concerted activities in the
future.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Offer Heather Crumbaker, Kelli Cunningham,
and Jerry Smith immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the judge’s decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
WE WILL NOT discharge employees for concerted ac-
tivities protected by Section 7 of the Act.
WE WILL NOT discharge our supervisors for refusing
to commit unfair labor practices.
WE WILL NOT interrogate or threaten employees for
engaging in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Heather Crumbaker, Kelli
Cunningham, and Jerry Smith immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits re-
sulting from their discharge, less any net interim earn-
ings, plus interest.
WE WILL notify each of them that we have removed
from our files any reference to their discharge and that
we will not use the discharge against them in any way.
LIBERTY NATURAL PRODUCTS, INC.
Linda Scheldrup, Esq., for the General Counsel.
James Dierking, President, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Portland, Oregon, on August 19–
20 and September 8–9, 1993,1 pursuant to a consolidated
complaint issued by the Regional Director for the National
Labor Relations Board for Region 36 on March 1, 1993, and
which is based on charges filed by Jerry J. Smith (Case 36–
CA–6984), Heather Crumbaker (Case 36–CA–6986), and
Kelli A. Cunningham (Case 36–CA–6987) (Charging Parties,
Smith, Crumbaker, or Cunningham, respectively) on January
11, 1993 (Case 36–CA–6984), and January 20, 1993 (Cases
36–CA–6986, 6987). The complaint alleges that Respondent
Liberty Natural Products, Inc. (Respondent) has engaged in
certain violations of Section 8(a)(1) of the National Labor
Relations Act (Act).
Issues
1. Whether Respondent discharged its employees Heather
Crumbaker and Kelli Cunningham because they engaged in
certain concerted protected activities involving an employee
petition.
2. Whether Respondent discharged its supervisor, Jerry J.
Smith, because he failed to prevent the concerted protected
activities referred to above and to discourage employees
from engaging in such concerted protected activities.
3. Whether Respondent acting through its owner, super-
visor and/or agent interrogated and threatened its employees
in retaliation for the employees concerted protected activities,
referred to above.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is an Oregon corporation en-
gaged in the manufacturing and distribution of health and
beauty aids and having an office and place of business lo-
cated in Portland, Oregon. Respondent further admits that
during the past 12 months, which period is representative of
all material times, in the course and conduct of its business
operations, it had gross sales of goods and services valued
in excess of $250,000. It further admits that during the past
12 months, which period is representative of all material
times, in the course and conduct of its business, it has sold
and shipped goods or provided services from its facilities
within the State of Oregon, to customers outside the State,
or sold and shipped goods or provided services to customers
within the State, which customers were themselves engaged
in interstate commerce by other than indirect means, of a
total value in excess of $50,000. Accordingly, it admits and
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Sometime after charges were filed in this case, Respondent
changed its payroll policy. Currently, employees are paid on the 3rd
and 18th of each month, if they fall on business days, or on the next
business day, if the payday falls on a weekend day. (Tr. 645–646).
I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Overview
In December, Respondent’s paydays for nonsupervisory
employees were December 3 and 18. (R. Exh. 5.) However,
employees did not receive their checks on these days, nor on
the two comparable designated paydays for other months. In-
stead, employees received their paychecks 3 business days
after they were due pursuant to Respondent’s payroll policy
providing for late payment of wages.2 Where a holiday com-
bined with a weekend, employees received their checks 6
days after they were due. Many of Respondent’s employees
objected to this payroll policy and some or all of the same
employees believed themselves to be underpaid as well. Both
issues spontaneously arose on the morning of December 2,
a Wednesday, as some employees began to talk among them-
selves during worktime about the approaching holidays and
the resulting expenses. It was felt that Respondent’s payroll
policy would cause needless hardship because bills had to be
paid on time without the luxury of employees delaying 3
business days while they waited for their paychecks. Accord-
ingly, an employee named Heather Crumbaker suggested to
other employees an employee petition to their superior,
James R. Dierking, president and owner of Respondent.
Crumbaker prepared a suggested petition on her word proc-
essor and showed it to other employees including Kelli
Cunningham, Gloria Streeter, Lisa Dokas, and Dokas’ moth-
er, Maureen Richey. No one objected to the wording of the
petition as proposed by Crumbaker. All of the aforemen-
tioned employees and all or most other available non-
supervisory employees who had not been part of the initial
discussion signed the petition. It reads as follows (Jt. Exh.
3):
PETITION FOR HUMAN RIGHTS
WE THE UNDERSIGNED WANT TO BE PAID EVERY TWO
WEEKS AND ON THAT DAY. IT IS UNFAIR TO HAVE US
WAIT UP TO SIX DAYS AFTER THE PAY PERIOD [SIC] TO
BE PAID. IT MAKES US LATE WITH OUR CREDITORS AND
COSTS US MORE.
NOTE: NONE OF US CAN SUPPORT OURSELVES ON THIS
SALARY.
[s] Heather Crumbaker
[s] Lisa Dokas
[s] Maureen Richey
[s] Vong Sautaug
[s] Kelli Cunningham
[s] Victoria Rawlinson
[s] Michelle James
[s] Gloria Streeter
[s] James Dotten
After all the employees had signed the petition, Crumbaker
ran off sufficient copies of the petition on Respondent’s copy
machine so that all signers could have their own copy. Then
Crumbaker took the original petition to Dierking’s second
floor office (Jt. Exh. 2) where she taped it to Dierking’s
computer terminal. This method of communicating with
Dierking, who was not at work at the time and who kept ir-
regular hours, had been used on many past occasions. That
evening Dierking came to work and found the petition. As
will be recited below in more detail, Dierking was not
pleased and within a few days subsequent to December 2,
both Crumbaker and Cunningham together with their super-
visor, Jerry Smith, were all terminated. To put all this in per-
spective, additional background is required.
2. Respondent and its owner, Dierking
As noted above, Dierking is president and owner of Re-
spondent, a small company which manufactures health and
beauty aids including oils which it then distributes to whole-
sale sellers, health food retailers, and small manufacturers.
The business began in 1982 under a different name and with
Dierking as co-owner. In 1984, the name of the business
changed to its current name and later Dierking became sole
owner. Apparently until August 1991, all went well with the
business and approximately 25 employees were gainfully em-
ployed. Then, in August 1991, a devastating fire destroyed
the business and for a period of time Respondent ceased op-
erations until Dierking was able to acquire a new location.
Eventually, Respondent resumed operations but with its
employee complement reduced to about 14 employees.
Among those retained were Smith, Crumbaker, and
Cunningham. In managing the business, Dierking read var-
ious articles from management journals which he would oc-
casionally copy and discuss with Smith, an admitted super-
visor, and before his termination, the No. 2 person in the
Company. Besides reading business and management publi-
cations, Dierking maintained a relationship with a former
business associate named James Stotler, who testified for Re-
spondent. According to Stotler, Dierking frequently discussed
with him perceived problems with Smith serious enough, ac-
cording to both Dierking and Stotler, that Dierking was about
to fire Smith long before the petition was signed. However,
Stotler allegedly talked Dierking out of firing Smith because
the move would have placed too great a burden on Dierking.
More about this below.
Dierking often worked very early in the morning or very
late at night. When he was not at work, employees did not
know where he was, how to contact him, or when he might
come in. Dierking allowed Crumbaker to have unrestricted
use of his computer located in his private office except on
those occasions when Dierking was working in his office.
Respondent’s work environment is described as very infor-
mal with a variety of attire worn by employees. In the sum-
mer, for example, Dierking himself might come to work
barefooted and wearing shorts. At noon, if Dierking was in
the office that day, he and another employee might go out
rollerblading for an extended lunch hour. In addition, em-
ployees were permitted flexibility as to work hours. While
working, employees were permitted to discuss any personal
subjects except for politics or religion, so long as the discus-
633LIBERTY NATURAL PRODUCTS
3 Dierking testified that as owner and president of Respondent, he
is not covered by any policy applicable to all other employees, in-
cluding this policy. Accordingly, he frequently discussed politics
with an employee named Wolf—who had an opposing point of view.
Wolf is no longer employed by Respondent.
4 Some of Crumbaker’s deficiences were the subject of written dis-
ciplinary notices. (Jt. Exhs. 6(a)–(c).)
5 When Smith returned, he agreed to assume new responsibilities
for company operations and to limit his research and development
efforts which he had performed in the past.
sions did not interfere with their work duties.3 Employees
were instructed to punch out on their computers two times
a day for a break. Those employees who complied and not
all did, were permitted to take their breaks whenever conven-
ient for them so long as the phones were covered.
3. Heather Crumbaker
Hired on June 15, 1991 as a telemarketer, Crumbaker’s ca-
reer with Respondent has been erratic to say the least. Re-
spondent presented evidence to show that Crumbaker often
used extensive profanity in the workplace, often had argu-
ments with fellow employees over perceived encroachments
on their ‘‘turf,’’ and offended two black female coworkers
with insensitive and racist remarks.
Crumbaker’s primary job was to deal with established cus-
tomers and solicit new customers by phone. Frequently, how-
ever, she attempted to inject herself into the operation of the
shipping department where she had no real authority. This
created friction with employees who worked in the shipping
department such as Gloria Streeter who frequently com-
plained to Dierking about Crumbaker.
Another problem involving Crumbaker was a Workers
Compensation claim she filed some months before the peti-
tion. In this claim, Crumbaker alleged that she was allergic
to the fumes from some of the products manufactured and
shipped by Respondent. As this claim was pending,
Crumbaker was told by Dierking and Smith to stay away
from the areas where the fumes were strongest. Frequently,
Crumbaker disregarded this order, always, she testified, in
order to achieve a laudable goal, such as expediting a cus-
tomer’s order.
Dierking’s business associate, Stotler, testified that some-
time before the petition, he backed into Crumbaker’s car in
Respondent’s parking lot. In the ensuing negotiations to re-
pair the damages to Crumbaker’s car, she was allegedly pro-
fane and disrespectful to Stotler’s insurance agent. Stotler
then discussed with Dierking, the experiences apparently re-
lated to him by the unnamed insurance agent. Dierking told
Stotler that he had been thinking about terminating
Crumbaker for some time because of dissatisfaction with her
job performance and conflict with other employees. What-
ever the level of Dierking’s dissatisfaction, he did not termi-
nate her at that time.4
Not all the evidence regarding Crumbaker was negative.
With the possible exception of Dierking, Crumbaker was the
most skilled Respondent employee on the computer. More-
over, she treated customers well, did an acceptable volume
of business, and earned a salary of $8.50 per hour (R. Exh.
22). Finally, while she annoyed other employees with her oc-
casional eccentric behavior, they seemed to accept and toler-
ate her. Witness the ease by which she circulated the petition
to the nonsupervisory employees working on December 2.
On March 25, Crumbaker gave notice of her intent to
leave Liberty as of May 1, because she was not making the
money she had been promised, because she had been experi-
encing headaches for which she expected to file a workers
compensation form, and because she refused to work harder
to compensate for employees who do not have any responsi-
bility (R. Exh. 18). Apparently by mutual agreement,
Crumbaker withdrew her threatened resignation.
4. Kelli Cunningham
Cunningham worked for Respondent between April and
December 1991. Her job was telemarketing with primary re-
sponsibility for serving health food stores and chains. Al-
though she was a college graduate, her pay rate was $8.50
per hour. In August or September a 50-cent-an-hour pay
raise to $9 per hour had been promised to her, but was never
implemented by Dierking. Dierking told Cunningham that he
had forgotten that he promised it to her. When she made a
fuss about not receiving the pay raise, Dierking rescinded it
permanently. On August 21, Cunningham wrote a long,
handprinted letter to Dierking complaining about their rela-
tionship and the rescinded pay raise and offering to leave the
Company as a possible solution to the friction between the
two of them (G.C. Exh. 2). However, like Crumbaker’s of-
fered intent to leave the Company, Cunningham too with-
drew her written intent to leave 1 or 2 days later, after
Dierking apologized to her for the problems existing between
the two of them.
5. Jerry Smith
Smith worked for Respondent between April 1990 to De-
cember 8, first with the title of vice president of sales, and
in early 1992, Smith became vice president of Respondent.
Smith’s specific duties included accounts payable and ac-
counts receivable, payroll, purchasing agent, and from time
to time, liaison between Dierking and line employees.
After the fire, Smith worked out a mutually beneficial deal
with Dierking, by which the former continued to work part
time while he attempted to start a business of his own.
Dierking liked the arrangement because he was able to pay
Smith part-time wages while Dierking worked to build busi-
ness volume. When Smith’s own business venture did not
succeed, he returned to Respondent’s employment full time,
at Dierking’s request.5
Like Dierking’s relationship with virtually all his employ-
ees—not just those who testified for General Counsel—his
relationship with Smith was stormy. According to Dierking,
Smith interfered with Dierking’s ability to manage the Com-
pany. Moreover, Dierking added that Smith resisted
Dierking’s policies and was not productive. Respondent
called witnesses to corroborate Dierking’s claims. For exam-
ple, Roger Richardson, a computer consultant who had per-
formed work for Respondent, testified that in the fall,
Dierking told him that Smith didn’t respect Dierking any-
more and wasn’t doing a good job. Smith was, according to
Richardson purporting to quote Dierking, hard to talk to. In
November, Dierking even discussed with Richardson, the
possibility of firing Smith and hiring someone else for less
money.
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 This was not the first time that Dierking had told employees
about his preference for one-on-one meetings. Once before,
Crumbaker and Cunningham had attempted to discuss with Dierking
their request for a pay raise, but he would meet only with one at
a time.
Another witness named Don Hatter was also called by Re-
spondent. Hatter started working for Respondent in Novem-
ber 1991, and currently is director of operations. Hatter,
whose job duties overlapped Smith’s when they both worked
for Respondent, testified that Smith resisted changes relating
to the computer system. In mid-November, according to Hat-
ter, Dierking had decided to fire Smith, but Hatter advised
against this move, arguing that without Smith, the workload
would be too heavy on him and Dierking.
Dierking provided specific examples of how Smith alleg-
edly failed to cooperate with him. For example, in October
or November, Dierking wanted Smith to help move a heavy
sink. When Smith agreed to the physical labor, but without
enthusiasm, Dierking reprimanded him for a poor attitude
and said Smith’s job was on the line. In August, Smith hired
an employee named Lisa Dokas on the recommendation of
her mother who was a current Respondent employee. Smith
knew when he hired Dokas, but did not tell Dierking, that
Dokas was on judicial probation. Dierking subsequently dis-
covered Dokas’ background and reprimanded Smith for not
telling him. Still another dispute concerned Smith’s failure to
follow Dierking’s instructions on the recycling of certain oils
used in Respondent’s business. Finally Dierking was particu-
larly angered by Smith’s curious practice of spraying anti-
septic spray on Respondent’s computers, fax machines, and
door knobs to control colds and flu.
Despite Dierking’s alleged continuing mistrust of and de-
sire to fire Smith, I note some contradictions in Dierking’s
supposed relationship with Smith. For example, Dierking had
several personal discussions with Smith about a custody dis-
pute involving Dierking’s children and the anguish this was
causing Dierking. With respect to Crumbaker, Dierking told
Smith to be careful in his dealings with Crumbaker and to
be lenient in dealing with her, lest Crumbaker unfairly claim
she was being discriminated against (Tr. 838–839). Yet when
Dierking decided to fire Crumbaker, he turned it over to
Smith, the person who allegedly could not be counted on to
follow Dierking’s policies.
6. Other petition signers and petition aftermath
When Dierking found the petition on the evening of De-
cember 2, he first thought it was a joke (Tr. 23), but when
he realized employees were serious, he became ‘‘confused
and upset,’’ because he hadn’t abused anybody’s human
rights. ‘‘It was really bothersome to [him].’’ Dierking was
‘‘deeply hurt . . . to think that [his] employees would com-
municate with [him] in this manner.’’ (Tr. 44.) As an em-
ployer, Dierking felt an obligation to respond to [the peti-
tion], and to find out [what was behind it]. So the next day,
Dierking began a series of one-on-one meetings in his office
between himself and each employee who signed the petition,
except for Crumbaker who was off sick and Dotten who was
not available (Tr. 23–24). Each meeting lasted for 5 to 45
minutes. Hatter was present for most of the meetings. During
the meetings, Dierking expressed his anguish at having been
unfairly accused of matters, inquired as to who had prepared
the petition and circulated it, and in the case of some em-
ployees, announced a pay raise prior to beginning the inter-
views. Another common theme conveyed by Dierking to em-
ployees at the meetings was Dierking’s willingness to meet
with employees at an open and official employee meeting
where all could have their say, or at private one-on-one
meetings between Dierking and a single employee.6 How-
ever, in unmistakable terms, Dierking conveyed to employees
that he didn’t want any more petitions. After most employees
called to Dierking’s office expressed their regret to him for
having signed the petition and claimed that they had been
misled or even tricked into signing it by Crumbaker and
Cunningham, Dierking indicated a willingness to overlook
the transgression, again with the understanding that employ-
ees would not petition him again.
a. Rawlinson
General Counsel called Victoria Rawlinson who worked
for Respondent between March 2 and February 26, as an es-
sential oils clerk. This witness testified that she spent about
10–15 minutes learning about and discussing the petition and
then voluntarily signed it. The following day, when
Rawlinson came to work about 8 a.m., she was talking to
Dokas about the petition when Hatter came by and shouted
at both women while pointing his right finger for emphasis,
‘‘That was very stupid of you to sign that petition! You
should know better than that!’’ Rawlinson shouted back that
signing the petition was her business, that she had a right to
sign it, and that she didn’t need Hatter to tell her what she
could or couldn’t do. Hatter advised her that she should have
talked to Dierking first. The two continued their conversation
outside where Hatter apologized to Rawlinson for upsetting
her.
About 2 hours later, Rawlinson was called to Dierking’s
office where both Dierking and Hatter were present. Dierking
began the conversation by telling her, ‘‘you have a 50-cent-
an-hour pay raise.’’ This was followed by Dierking showing
her the petition and asking her what she could tell him about
it, including why she had signed it. When Rawlinson told
Dierking that she felt justified in signing it, Dierking asked
if she knew how bad the petition made him feel. Rawlinson
then discussed an incident involving a promised pay raise
which she had never received. She offered Dierking an am-
biguous kind of apology saying, she was sorry that she didn’t
have the ‘‘guts’’ to come and complain to him by herself
about matters covered by the petition. She also said she re-
gretted signing the petition. Dierking made specific inquiry
of Rawlinson about Crumbaker, who drew up and printed the
petition, about Cunningham who used the calendar to dem-
onstrate late payment of paychecks and about Smith. As to
Smith, Rawlinson told Dierking that after she signed the peti-
tion, she met Smith in the parking lot and offered to tell him
what was going on upstairs. Smith, suspecting some type of
employee concerted activity, told Rawlinson that he desired
to remain completely ignorant of the situation.
Rawlinson concluded by telling Dierking that no one was
coerced into signing the petition. A few days later, Dierking
again inquired of Rawlinson as to whether anyone had co-
erced her into signing the petition and she conveyed the
same answer as before.
Prior to the petition, Rawlinson intended to quit her job
as Respondent due to stress in her personal life caused by
635LIBERTY NATURAL PRODUCTS
her brother’s illness and general dissatisfaction with payroll
matters at Respondent. She discussed all this with Dierking
and he offered to give her time off to attend to personal mat-
ters so she could continue on the job. In fact, when she
signed the petition, Rawlinson was working only 20 hours
per week.
b. Streeter
Respondent called current employee Gloria Streeter as its
witness. She began her employment in June 1990 as a sales-
person and now does shipping including packaging and in-
voice preparation. When Crumbaker brought the petition to
her on December 2, she readily signed it. The following day,
Streeter was called to Dierking’s office to meet with him and
Hatter. Dierking asked her if she understood what she had
done. When Streeter attempted to explain that she merely
wanted to be paid on time, Dierking said he didn’t appreciate
her signing the petition because it was an attack on him.
Eventually, Dierking made her understand that she really did
not understand what she had done, and she so testified. In
the future, Streeter believed that employees should go to
Dierking first before signing any petition.
Within a day or two of signing the petition, Streeter re-
ceived a pay raise as did her close friend at work and fellow
witness Michelle James. Both Streeter and James told
Dierking during the postpetition meetings that Crumbaker
had prepared the petition. In addition, when Dierking in-
quired of both, who were black women, whether Crumbaker
had ever been discriminatory toward them, both responded
affirmatively and also described Crumbaker’s use of pro-
fanity in the workplace, Streeter testified that Dierking used
the same language and once swore directly at her for losing
some shipping books.
c. James
Respondent’s witness, Michelle James, began working for
Respondent on February 10, 1991, and currently does ac-
counting and some sales work for the Company. On Decem-
ber 3, she met with Dierking and Hatter after she had signed
the petition the day before. Dierking asked James how she
felt about the petition and James replied. Dierking responded
that it was the way that it was brought to his attention that
he really didn’t like. James could have come to Dierking pri-
vately to discuss the matter, or she and other employees
could have scheduled a meeting to discuss the issues, but
signing a petition was the wrong way to go. (Tr. 587.)
Dierking indicated that he knew Crumbaker had been respon-
sible for the petition, so he asked no questions about that
subject. James apologized to Dierking for not reading
through the petition before signing it.
On October 20, James had received a 50-cent-per-hour pay
raise and on January 18, she received another 50-cent-per-
hour pay raise.
Like almost all other employees, James had planned to
quit Respondent before she signed the petition, because of
continuing friction with Crumbaker over how Crumbaker be-
haved towards her. Although James did not tell Dierking of
her plans to leave, she did tell Smith and Streeter. Appar-
ently the two pay raises mentioned above, other subsequent
raises, and Crumbaker’s termination all convinced James to
change her plans.
d. Dotten
Respondent called current employee James Dotten as its
witness. Disabled by morbid obesity, Dotten was hired in
March to work in telephone sales. On December 2, Dotten
was working about 12 hours per week. Crumbaker brought
the petition to him and after she explained its purpose, he
signed it.
Almost immediately after signing the petition, Dotten was
stricken with signer’s remorse. He attempted to consult with
Smith about how to remove his name from the petition, but
Smith said he didn’t want to hear about it. Dotten did not
meet with Dierking in the meetings held on December 3. But
on Saturday, December 5, Dierking called Dotten at home to
discuss the petition. Dotten indicated regret at having signed
the petition and told Dierking of his attempt to have Smith
help him remove his signature from the petition. Dierking
said this was the first he knew of Smith’s refusal to help
Dotten.
e. Dokas
Still another current employee called by Respondent was
Lisa Dokas, who was hired in April. Currently accounts man-
ager, Dokas and her mother, Maureen Richey, who did not
testify, were preparing to leave for the day, when presented
with the petition which each signed.
The following day Dokas had two separate meetings with
Dierking, the first in the morning. Dierking told her he was
upset about the petition being circulated and signed on com-
pany time. Dierking was also upset Dokas didn’t come to
him first.
The second meeting in the afternoon was spent discussing
Crumbaker with whom Dokas did not get along. Dokas told
Dierking about rude statements allegedly made by
Crumbaker to customers over the phone. On cross-examina-
tion, Dokas conceded she did not know for sure if
Crumbaker was talking to a customer at the time she over-
heard certain statements.
About a month after signing the petition, Dokas who
worked part-time between 8:30 a.m. to 1:30 p.m. received a
pay raise.
7. Terminations
a. Crumbaker
After Crumbaker completed her shift on December 2, she
told Smith that she was feeling sick and would not be report-
ing to work the following day. It is not clear whether
Crumbaker also told Smith that notwithstanding her illness,
she intended to come in during the afternoon to pick up her
paycheck. Crumbaker had no phone in her apartment and her
electricity had been shut off due to nonpayment of her bill.
She needed her paycheck to pay the delinquent bill to restore
power and get some heat on in her apartment.
What Crumbaker did not know was that instead of receiv-
ing one check, she would receive two—the second being her
final check. Early on the morning of December 3, Dierking
showed the petition to Smith and first asked if Smith was
aware of it. Smith answered that he had not been informed
of its contents. Then Dierking stated that Crumbaker had
been the ringleader or instigator of the petition drive and he
intended to terminate her for that reason. He asked Smith
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
what he thought of that, but Smith replied it was Dierking’s
decision to make. At another meeting with Smith on the
same day, Dierking dictated to Smith the points which he de-
sired Smith to include in Crumbaker’s termination notice.
Crumbaker’s final termination notice reads as follows (Jt.
Exh. 4):
Ref. No 19 Entered By JERRY SMITH Entry Type
PROBLEMS
Entry Date 12–03–93 Emp No 1016 First HEATHER
Last CRUMBAKER
Description INAPPROPRIATE BEHAVIOR
Explanation
PER JD
HEATHER CRUMBAKER WAS TERMINATED ON
12–3–92 FOR THE FOLLOWING:
1. INAPPROPRIATE BEHAVIOR
2. PROBLEM WITH ATTITUDE TOWARD COM-
PANY OPERATION
3. INTERFERENCE WITH TEAM FUNCTIONING
P.S. ALL WAGES DUE THROUGH 12–2–92 WERE
DELIVERED WITH TERMINATION NOTICE.
Employee Notified YES
Employee Acknowledgment
Left out in the final draft above was the first point dictated
by Dierking and contained in Smith’s original notes (Jt. Exh.
5):
‘‘Misconduct: instigated letter see enclosed.’’
Smith explained how Dierking’s four points had been re-
duced to three. Smith originally prepared the memo in accord
with his notes. Then he gave a copy to Dierking who left
the building to return to his home, leaving Smith to terminate
Crumbaker. Dierking then called two times to see if Smith
had followed orders, but Crumbaker had not yet arrived. On
the third call, Crumbaker was in the building but had not yet
seen Smith. Dierking told Smith to make a last minute
change to the termination letter deleting point 1 and renum-
bering the remaining three points. Although Dierking denied
doing this, I credit Smith in toto, finding him to be a credible
witness and corroborated by the tell-tale space between new
points 1 and 2, formerly points 2 and 3. In making the rush
change, Smith did not have time to fully make the correction.
In addition, Dierking never signed the second notice.
In any event, Crumbaker and Smith finally met and Smith
followed Dierking’s orders by terminating Crumbaker and
giving her the notice and checks. Because Crumbaker did not
expect that Dierking would react this way to the petition, she
became distraught testifying that she needed her income to
survive. Crumbaker told Smith she desired only to return to
her home due to her illness.
After Crumbaker left the premises, Dierking called Smith
from Dierking’s home to find out what happened. When
Smith told him, Dierking responded, ‘‘I really appreciate you
doing this for me, and I know things are going to be a lot
better once we clean house.’’ (Tr. 355.)
During cross-examination of Dierking, the question arose
as to why Dierking delegated the job of terminating
Crumbaker to Smith. Dierking explained, first, he didn’t trust
Crumbaker’s emotions; second, Smith had handled other situ-
ations of a similar nature for Dierking; third, Dierking be-
lieved Smith had a relationship with Crumbaker; and finally,
Dierking believed there would be too much stress involved.
What all this boiled down to in the words of Dierking him-
self, is that he ‘‘was being a little bit of a wimp in just not
wanting to deal with the situation.’’ (Tr. 10.)
b. Cunningham
On December 3, Cunningham met with Dierking in the
latter’s office. Hatter was not present. Dierking told her he
was very upset about the petition and he asked her why she
had signed it. She answered that she signed it because she
agreed with the purpose of the petition. Dierking then asked
why Cunningham didn’t come to him individually, but she
said she was merely following his suggestion to put com-
plaints in writing. Since all employees were in agreement,
she explained, they decided to consolidate their complaints
into a single petition. Dierking solicited an apology, but
Cunningham refused. Then Dierking threatened that he could
fire her and all others who had signed the petition.
After Cunningham learned that Crumbaker had been fired,
she asked Smith on December 3 whether she too would be
fired. Smith answered that no decision had yet been made.
On Friday, December 4, Cunningham had the day off. How-
ever, Dierking told Smith that he would probably be firing
Cunningham because Dierking was upset and disappointed
that Cunningham did not apologize nor back away from the
petition. To make matters worse, Dierking continued,
Cunningham was defiant and obstinate. Smith advised cau-
tion and suggested Dierking consider this decision over the
weekend which Dierking agreed to do.
On the following Monday, the area was hit by a severe
snowstorm. As a result, Cunningham arrived late about 11:30
a.m. and Smith didn’t come in at all. Upon her arrival,
Dierking met her, tendered her termination notice and final
check, and told her he was letting her go. The notice reads
as follows (Jt. Exh. 7):
MEMORANDUM OF TERMINATION
EMPLOYEE: Kelli Cunningham
DATE: 12–04–92
EFFECTIVE DATE OF TERMINATION: 12–07–92
PRESENT AT TERMINATION: JAMES R.
DIERKING, PRESIDENT
LOCATION: 8120 SE STARK ST., PORTLAND OR
97215
REASONS FOR TERMINATION:
1. Employee went out and made her problems those of
the entire company creating disruption in the work en-
vironment. Failed to address her problems or concerns
in a professional & constructive manner with manage-
ment. Management had an open door policy to deal
with employee complaints or problems.
2. Promoted the Petition for Human Rights on company
time. Continues to maintain an attitude that such activ-
ity is appropriate behavior, which places management
in an unacceptable position and continues disruption in
the workplace.
637LIBERTY NATURAL PRODUCTS
7 The record contains one past disciplinary notice for Cunningham,
dated June 4. (Jt. Exh. 8.)
8 During 1992, Cunningham had serious personal problems involv-
ing the deaths of more than one member of her family. Dierking
promised to cooperate with her need for extra time off from work
because of the deaths.
SIGNED: JAMES R. DIERKING—PRESIDENT
DATE:
Before she left the premises, Cunningham went to
Dierking’s office ‘‘to get some things of her chest.’’ There
she denied the validity of the reasons given for her termi-
nation and noted that she had no past written warnings for
her behavior.7 Like most employees, she had argued with
Dierking over wages thought to be too low, and other mat-
ters unique to Cunningham such as a spoiled food odor ema-
nating from her office and a disagreement over
Cunningham’s office lighting.8
c. Smith
On the Monday Smith was absent due to a snowstorm,
Rawlinson had a conversation with Hatter. He told
Rawlinson that ‘‘Smith’s on the hot seat, many things are not
going right, and there’s going to be some big changes around
here.’’ Rawlinson promptly relayed Hatter’s remarks to
Smith at his home, admonishing him over the telephone ‘‘to
be careful, because I don’t think you are going to have a job
in the morning.’’
The following morning Dierking called Smith into his of-
fice immediately after Smith arrived and told Smith he was
being let go. Smith responded that his termination was insig-
nificant because the Company was insignificant. Dierking
then gave Smith his final check and his termination notice
which reads as follows (Jt. Exh. 9):
MEMORANDUM OF TERMINATION
EMPLOYEE: JERRY SMITH
DATE: 12–08–92
EFFECTIVE DATE OF TERMINATION: 12–08–92
PRESENT AT TERMINATION: JAMES R.
DIERKING, PRESIDENT
LOCATION: 8120 SE STARK ST., PORTLAND OR
97215
REASONS FOR TERMINATION:
1. Failure to timely notify management of inappropriate
employee activity on company time and on company
premises. A history of failing to communicate important
information regarding employees.
2. Misrepresenting awareness of inappropriate employee
activities.
3. Inability to perform to managements expectations &
needs.
SIGNED: JAMES R. DIERKING—PRESIDENT
DATE
B. Analysis and Conclusions
At page 55 of the transcript, while Dierking was under-
going examination by the General Counsel as an adverse wit-
ness, he made the following statement:
I’m looking—I’ve asked the NLRB—I really want to
know [what] the law is. I’ve asked for months, and I
don’t get a straight answer except its subject to the cir-
cumstances. So I would like someone in writing to tell
me what my company can or cannot do. I don’t know,
to be honest with you.
Although on this record, Dierking’s sincerity can be doubt-
ed, I will assume strictly for the sake of argument that
Dierking is as confused as he claims and I will proceed to
tell him what the Act prohibits and allows. Of course,
Dierking’ alleged lack of knowledge is no defense. American
Freightways Co., 124 NLRB 146, 147 (1959).
1. Terminations of Crumbaker and Cunningham
To begin, I find that preparation, circulation, and signing
of the petition in issue in this case is concerted protected ac-
tivities. See Meyers Industries (Meyers I), 268 NLRB 493
(1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941
(D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), reaffd.
281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1987). See also Alumina Ceramics, 257 NLRB 784 (1981).
In the instant case, employees who signed the petition at-
tempted to bring two matters to the employer’s attention, the
delayed payment of paychecks and the perceived low sala-
ries. In C.D.S. Lines, 313 NLRB 296 (1993), the Board af-
firmed a decision of the administrative law judge finding that
certain discharges violated Section 8(a)(1) of the Act. At
page 6 of the judge’s decision, the administrative law judge
wrote:
In order to establish a violation of Section 8(a)(1) of
the Act on the part of the Respondent in discharging
the Bungards, it is necessary to establish that they had
engaged in activity which was both concerted and pro-
tected and that such activity was the cause, in whole or
in part, of the discharges. ‘‘[I]t is obvious that higher
wages are a frequent objective of organizational activ-
ity, and discussions about wages are necessary to fur-
ther that goal.’’ Jeanette Corp v. NLRB, 532 F.2d 916,
918 (3d Cir. 1976). ‘‘[D]issatisfaction due to low wages
is the grist on which concerted activity feeds.’’ Supra
at 319.
See NLRB v. Henry Colder Co., 907 F.2d 765 (7th Cir.
1990), where court found employee discharge to be unlawful
where based on bringing group complaint about the timing
of employee training session to management’s attention. See
also NLRB v. Evans Packing Co., 463 F.2d 193 (6th Cir.
1972); Salisbury Hotel, 283 NLRB 685, 686–687 (1987).
The petition activity in question here consumed between
15 to 30 minutes of work time for most involved employees.
Employees who are unrepresented and working without an
established grievance procedure have a right to engage in
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spontaneous concerted protests concerning their working con-
ditions. Cf. Waco Inc., 273 NLRB 746 (1984). These em-
ployees may not be legitimately disciplined for engaging in
protected activities, so long as they are not unduly disruptive
of the employer’s operations. I find no undue disruption oc-
curred here. See Johnni Johnson Tire Co., 271 NLRB 293,
294–295 (1984); compare Cambro Mfg. Co., 312 NLRB 634
(1993).
In Mast Advertising & Publishing Co., 304 NLRB 819
(1991), the Board relied on NLRB v. Thor Power Tool Co.,
351 F.2d 584, 587 (7th Cir. 1965), enfg. 148 NLRB 1379,
to recite the balancing test for cases like that at bar: An em-
ployee’s right to engage in concerted activity may permit
some leeway for impulsive behavior which must be balanced
against the employer’s right to maintain order and respect.
See Joseph De Rario, DMD, P.A., 283 NLRB 592, 593
(1987). By this standard, Respondent violated the Act in fir-
ing Crumbaker and Cunningham.
Once Dierking learned of the petition, he reacted with un-
mistakable purpose: to coerce petition signers into repudi-
ating their protected activities, and to discover the primary
organizers of the activity. In these pursuits he succeeded.
First, he learned that Crumbaker had prepared the petition
and circulated it to others for signatures. Crumbaker’s per-
sonal and professional deficiencies tolerated on the job until
then were suddenly found to be intolerable. Then Dierking
engaged in a coverup of his real reason for firing Crumbaker
by telling Smith to make an 11th hour change on the termi-
nation notice.
During the hearing, Deirking claimed that Crumbaker was
a statutory supervisor on or about December 2.
A supervisor is defined in Section 2(11) of the Act as:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievance, or effectively to recommend such action, if
in connection with the forgoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
The law on the subject is well summarized by Judge Itkin
in the case of Amperage Electric, 301 NLRB 5, 13 (1991):
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical, or rule book au-
thority. It is well established that a rank-and-file em-
ployee cannot be transformed into a supervisor merely
by investing him or her with a ‘‘title and theoretical
power to perform one or more of the enumerated func-
tions.’’ NLRB v. Southern Bleachery & Print Works,
257 F.2d 235, 239 (4th Cir. 1958), cert. denied 359
U.S. 911 (1959). What is relevant is the actual authority
possessed and not the conclusory assertions of wit-
nesses. And while the enumerated powers listed in Sec-
tion 2(11) of the Act are to be read in the disjunctive,
Section 2(11) also ‘‘states the requirements of inde-
pendence of judgment in the conjunctive with what
goes before.’’ Poultry Enterprises v. NLRB, 216 F.2d
798, 802 (5th Cir. 1954). Thus, the individual must
consistently display true independent judgment in per-
forming one or more of the enumerated functions in
Section 2(11) of the Act. The performance of some su-
pervisory tasks in a merely ‘‘routine,’’ ‘‘clerical,’’
‘‘perfunctory’’ or ‘‘sporadic’’ manner does not elevate
a rank-and-file employee into the supervisory ranks.
NLRB v. Security Guard Service, 384 F.2d 143, 146–
149 (5th Cir. 1967). Nor will the existence of inde-
pendent judgment alone suffice; for ‘‘the decisive ques-
tion is whether [the individual involved] has been found
to possess authority to use [his or her] independent
judgment with respect to the exercise [by him or her]
of some one or more of the specific authorities listed
in Section 2(11) of the Act.’’ See, NLRB v. Brown &
Sharpe Mfg. Co., 169 F.2d 331, 334 (1st Cir. 1948). In
short, ‘‘some kinship to management, some empathetic
relationship between [supervisor] and employee, must
exist before the latter becomes a supervisor of the
former.’’ NLRB v. Security Guard Service, supra.
As the Board and the Seventh Circuit have noted, the
Board owes a duty to employees not to construe supervisory
status too broadly, for if the individual is deemed a super-
visor, he loses the Section 7 rights Congress intended to be
protected by the Act. Phelps Community Medical Center,
295 NLRB 486, 492 (1989); Westinghouse Electric v. NLRB,
424 F.2d 1151, 1158 (7th Cir. 1970). For that reason, the
party contending that a person is a supervisor carries the bur-
den of persuasion on that issue. Adco Electric, 307 NLRB
1113 (1992); Biewer Wisconsin Sawmill, 312 NLRB 506
(1993).
In the present case, I find no credible evidence whatsoever
that Crumbaker was ever a statutory supervisor. Clearly, she
was never told by Dierking or anyone else that she was a
supervisor. The failure to inform Crumbaker that she was a
supervisor indicates she was a rank-and-file employee. NLRB
v. Adco Electric, 6 F.3d 1110, 1118 fn. 5 (1993). More im-
portantly, I find no evidence of any specific employees that
Crumbaker supervised. When she encroached on the job re-
sponsibilities of others, such as Streeter, the affected em-
ployee either ignored Crumbaker and/or complained to
Dierking about her. She had no authority to hire or fire em-
ployees, nor developed any company policies beyond what
any of the employee could do. I find that Respondent failed
to meet its burden of proving that Crumbaker was a super-
visor.
I also reject any claim that Crumbaker was fired for using
profanity in the workplace, something that most other em-
ployees did including Dierking himself.
As to Cunningham, she was not so much the organizer as
she was an employee who refused to be bullied into dis-
avowing her signature on the petition. As to both Crumbaker
and Cunningham, I reject any claim that they were fired for
not punching out on the computer during the petition activ-
ity. No one who signed the petition did, but only these two
were fired. Other petition signers received pay raises. See
American Thread Co. v. NLRB, 631 F.2d 316, 322 (4th Cir.
1980), where evidence of glaring disparity in treatment of
employees is found to be evidence of unlawful motive. Such
disparate treatment is evidence of discrimination. NLRB v.
Adco Electric, supra at 1119.
Similarly, the record shows that Dierking—when he was
present—did not prohibit use of the copying machine for oc-
casional private purposes, such as charitable activities. Thus
639LIBERTY NATURAL PRODUCTS
9 As an alternative finding under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982) approved in NLRB v. Transportation Managment Corp.,
462 U.S. 393 (1983). I find that General Counsel has established a
prima facie case that Crumbaker and Cunningham were fired for en-
gaging in protected concerted activity. For the reasons stated in the
text of the decision, I find that Respondent has failed to show that
the employees would have been fired even if they had not engaged
in protected concerted activities.
10 Under Board law, I need not concern myself with Smith’s mo-
tives for his ‘‘see no evil, hear no evil, speak no evil’’ strategy.
reliance on unauthorized use of the copy machine to justify
Crumbaker’s discharge, is a variance from past practice and
is evidence of illicit motive. Birch Run Welding & Fabrica-
tion v. NLRB, 761 F.2d 1175, 1181 (6th Cir. 1985).
Other factors compel my conclusion that both Crumbaker
and Cunningham were fired in violation of Section 8(a)(1).
For example, the timing and abruptness of the terminations
coinciding with the petition activity cannot be ignored. NLRB
v. U.S. Industry, 701 F.2d 452, 467, 468 (5th Cir. 1983);
NLRB v. Long Island Airport Limousine Service Corp., 468
F.2d 292, 295 (2d Cir. 1972).
I also find that Respondent attempted to shore up its shaky
grounds for discharge by attempting to present evidence
showing that Crumbaker and Cunningham were not good
employers. This unsuccessful strategy contributes to findings
of pretext. See Weather Shield of Connecticut, 300 NLRB
93, 96 (1990). Shifting reasons for an employee’s termi-
nation is evidence of pretext. When pretextual reasons for a
discharge are given, this means that the employer wishes to
hide the real reasons, which in this case, was because both
Crumbaker and Cunningham engaged in concerted protected
activity. See Sherwin-Williams Co., 313 NLRB 163 (1993).
In sum, for the reasons stated above, I find that the termi-
nations of Crumbaker and Cunningham violated Section
8(a)(1) of the Act.9
2. Termination of Smith
All agree that for all times material to this case, Smith was
a statutory supervisor. The law regarding discipline and dis-
charge of supervisors is succiently stated by Professor Hardin
in 1 The Developing Labor Law 132 (3d ed. 1992):
Supervisors are excluded from the Act’s definition of
‘‘employee’’ because they are agents of the employer.
Accordingly, supervisors do not enjoy the protection of
the Act and are subject to other discipline for engaging
in union or concerted activity. Thus, when an employer
has disciplined or discharged a supervisor out of a le-
gitimate desire to assure the loyalty of its management
personnel and its action was ‘‘reasonably adapted’’ to
that end, the Board has found such conduct permissible
even if an incidental effect was to instill in employees
the fear that the same fate would befall them for engag-
ing in protected activity.
For many years, however, the Board has held that
the discipline or discharge of a supervisor violates sec-
tion 8(a)(1) ‘‘when it interferes with the . . . exercise
[by employees of] their rights under section 7 of the
Act. Thus, an employer may not discipline or discharge
a supervisor . . . for refusing to commit unfair labor
practices. [Citations omitted.]
Applying the law to the facts of this case, I find that Re-
spondent violated Section 8(a)(1) of the Act by discharging
Smith. I further find, contrary to Respondent, that the reason
Smith was discharged was due to Smith’s refusal to commit
an unfair labor practice. See Phoenix Newspapers, 294
NLRB 47, 47–48 (1989); Russell Stover Candies v. NLRB,
551 F.2d 204, 206–207 (5th Cir. 1975).
Smith was offered three opportunities to inform himself
about the petition prior to its delivery to Dierking. First,
Crumbaker was making copies of the petition when Smith
happened by. She offered to let Smith see it, but Smith said
just give it to him (Dierking). Later, as noted above,
Rawlinson and Dotten each separately and for their own rea-
sons, desired to discuss the petition with Smith, but he de-
clined again. During Dierking’s interrogations of employees,
it didn’t take long for Dierking to learn that Smith could
have nipped this protected activity in the bud, but he de-
clined to do so (Tr. 34–35).10 Dierking asked Smith a day
or so after finding the petition, ‘‘Jerry, do you know any-
thing about this?’’ (Tr. 30.) Smith had intentionally kept
himself ignorant of the petition, but he knew at least that
there was some sort of employee complaint being directed to
Dierking’s attention and he didn’t want to get involved (Tr.
343).
It is clear to me that Dierking wanted Smith to stop the
petition activity before it came to Dierking’s attention. More-
over, Dierking’s stated reasons for discharging Smith, that
Smith misled Dierking (Tr. 35), that Smith was disloyal (Tr.
35), that Smith interfered with Deirking’s ability to manage
Respondent (Tr. 842–843), and similar reasons were not true.
See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466,
479 (9th Cir. 1966). Instead Smith was fired for failing to
commit an unfair labor practice by stopping the employee
petition activity as soon as he discovered it. Parker-Robb
Chevrolet, 262 NLRB 402, 404 (1982). See also Elder-
Beerman Stores Corp., 173 NLRB 566 (1968), enfd. 415
F.2d 1375 (6th Cir. 1969), cert. denied 397 U.S. 1009
(1970).
3. Threats and interrogations
At page 18 of her brief, General Counsel asserts that Hat-
ter coerced Rawlinson the day after the petition when he said
it was stupid of the employees to have signed the petition.
It is unnecessary to determine whether Hatter’s remarks vio-
lated the Act because I find that General Counsel has failed
to prove that Hatter was a statutory supervisor when he con-
fronted Rawlinson. Hatter testified that as of December 3, he
was training to be operations manager for Respondent. Ex-
actly what Hatter did as a trainee does not appear of record.
It is true, as General Counsel points out, that Rawlinson
considered Hatter to be her supervisor and that she leaned on
him for knowledge of the area of essential oils, where he
was more knowledgeable than she was. (Tr. 321–323.) Be-
cause Hatter was thought to be a supervisor, he was not
asked to sign the petition. Whether employees considered
Hatter to be a supervisor is not determinative however, be-
cause a finding of supervisory status must be based on ‘‘pri-
mary indicia,’’ i.e., those functions actually listed in Section
2(11) of the Act. PHT, Inc., 297 NLRB 228, 231 (1989), ac-
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment for 26 U.S.C. § 6621.
12 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.
companied by the use of independent judgment in the execu-
tion or recommendation of any of the Section 2(11) func-
tions. John N. Hansen Co., 293 NLRB 63 (1989). Evidence
of independent judgment is lacking here.
In looking through the record, I note that unlike Smith
who was paid a salary, Hatter was paid on an hourly basis.
Hatter was supposed to report to Smith, but instead reported
directly to Dierking, a fact I find to be without significance
in proving supervisory status. Finally, I note that Hatter sat
in with Dierking as the latter interviewed employees about
the petition. This occurred after the exchange with Rawlinson
and again is insufficient to show supervisory status. For the
reasons stated above, I will recommend that this segment of
the case be dismissed.
By contrast to Hatter, the actions of Dierking in calling
employees to his office for one-on-one conversations about
the petition leave little room for doubt. Applicable Board law
is summarized in Kellwood Co., 299 NLRB 1026 (1990):
The Board, in Rossmore House,6 held that an interro-
gation of an open and active union supporter violates
Section 8(a)(1) when, under all the circumstances, the
interrogation reasonably tends to restrain, coerce, or
interfere with employee’s rights guaranteed by the Act.
The Board also outlined factors that may be considered
in applying this test: the background, the nature of the
information sought, the identity of the questioner, and
the place and method of interrogation. Subsequently, in
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), the
Board held that the analysis set forth in Rossmore
House applied to all interrogations, not only to those in-
volving open and active union supporters, and that
whether the employee involved was an open and active
union supporter was a relevant factor to be considered
in evaluating the total context of the interrogation.
6 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
There was no union involved here and the petition signers
could be described as open and active supporters of the pro-
tected activity. However, Dierking’s statements of how hurt
and disappointed he was coupled with his repeated questions
about the identity of persons responsible for the petition
clearly coerced employees in the exercise of the Section 7
rights. Employers reacted accordingly by either responding to
Dierking in a vague expression of regret or flat-out retracting
their support of the petition. As stated by the court in NLRB
v. Illinois-American Water Co., 933 F.2d 1368, 1374 (7th
Cir. 1990):
The economic dependency of the employee on the em-
ployer makes the employee extremely sensitive to em-
ployer statements, therefore we ‘‘must take into account
the economic dependence of the employees on their
employers, and the necessary tendency of the former,
because of that relationship, to pick up intended impli-
cations of the latter that might be more readily dis-
missed by a more disinterested ear.’’ NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969).
In sum, I find that Dierking violated Section 8(a)(1) of the
Act when he interrogated employees about their motivations
for signing the petition, the identity of those most responsible
for the petition, and related questions including statements
not to petition Respondent in the future for the redress of
grievances. Under the circumstances present in this case, the
interviews were threatening, coercive, and intimidating.
CONCLUSIONS OF LAW
1. Respondent Liberty Natural Products, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By discharging Heather Crumbaker and Kelli
Cunningham for their concerted protected activities Respond-
ent has engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
3. By discharging statutory Supervisor Jerry Smith for re-
fusing to commit unfair labor practices, Respondent has vio-
lated Section 8(a)(1) of the Act.
4. By interrogating its employees about their concerted
protected activities, and about the identity of persons respon-
sible for a petition to the employer to redress certain griev-
ances and by threatening and coercing employees to preclude
future concerted protected activities, Respondent has violated
Section 8(a)(1) of the Act.
5. Other than found above, Respondent has committed no
other unfair labor practices.
6. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having discharged Heather Crumbaker, Kelli
Cunningham, and Jerry Smith in violation of the Act, I find
it necessary to order Respondent to offer them full reinstate-
ment to their former position or, if such positions no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make
them whole for any loss of earnings that they may have suf-
fered from the time of their discharge to the date of Re-
spondent’s offer of reinstatement. Backpay shall be computed
in accordance with the formula approved in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as computed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).11
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Liberty Natural Products, Inc., Portland,
Oregon, its officers, agents, successors, and assigns, shall
641LIBERTY NATURAL PRODUCTS
13 General Counsel has not sought a broad order under Hickmott
Foods, 242 NLRB 1357 (1979). Thefore, I need not decide whether
Respondent’s unfair labor practices are so egregarious or widespread
as to be deserving of such an order. See C.D.S. Lines, 313 NLRB
296 fn. 2, supra.
14 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.’’
1. Cease and desist from
(a) Discharging employees for activities protected by Sec-
tion 7 of the Act.
(b) Discharging a statutory supervisor for refusing to com-
mit unfair labor practices.
(c) Interrogating employees concerning their protected
concerted activities and threatening them if they seek to en-
gage in concerted protected activities in the future.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.13
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Heather Crumbaker, Kelli Cunningham, and
Jerry Smith full reinstatement to their former positions or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings, with interest, in the manner
set forth in the remedy section of this decision.
(b) Remove from its files any references to the unlawful
discharges of Heather Crumbaker, Kelli Cunningham, and
Jerry Smith and notify them in writing that this has been
done and that the discharges will not be used against them
in any way.
(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 analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Portland, Oregon, copies of the
attached notice marked ‘‘Appendix.’’14 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, 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 Resondent has
taken to comply.
IT IS FURTHER ORDERED that those allegations of the com-
plaint as to which no violations have been found are hereby
dismissed.