Madison Kipp Co.

National Labor Relations Board - Board Decisions

Feb 23, 1979

240 N.L.R.B. 879 (N.L.R.B. 1979)

MADISON KIPP COM PANY 879
Madison Kipp C'ompany and Mrs. Pats)r Ellis. ase
10 ('A 12946
Fehruar, 23. 1979
DECISION AND ORDER
By CtlHAIRM N FANNING AND Ml MBI RS P: I I.()
ANI) TRI SI)AI I
On October 25., 1978. Administrative Law Judge
Robert C. Batson issued the attached Decision in this
proceeding. Thereafter. the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings. findings,' and
conclusions 2 of the Administrative Law Judge only
to the extent consistent herewith, and to adopt his
recommended Order as modified herein.
The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)( ) of the Act
when, during a speech to the employees on June 9,
1977, Plant Manager Jeff Mitchell stated that Re-
spondent "would bargain from scratch" if the em-
ployees selected the Union to represent them. Al-
though we agree with the Administrative Law ludge
that the statements in this speech did not unlawfully
imply that Respondent would unilaterally discon-
tinue existing benefits prior to negotiations we be-
lieve, for the reasons set forth below, that Respon-
dent's statements nevertheless violated Section
8(a)(1) of the Act.
In his speech to the employees Mitchell indicated
several times that anN bargaining between Respon-
dent and the Union would start from scratch and "all
I Respondent ha, excepted t certain credihlit fIlln Ar nlad h Ilhe
Adminlstratile I.aw Judge It i the oardt ethlshed polhlc nt. io .rcl-
rule an Admlnptra.,le I .l Judge's resolutions ulh espect ,o redilhli
unless the iceal preprondera.nce rf ll of the relnl ent ii. enlce .ilxlnr . ,
that the resolutions are incorrect .Standard r, Hall Prdltli. Im, 9I
NlRB 44 (1950. enfd. 88 I' 2d 362 (3d (lr. 151) e ha;le arefull
examined the record and find no hasis for reversing hi, inlirts
- In adopting the Administrative l.aw Judge's conclusion that Reporn-
dent did not violate Sec 8(a)(ll) hen its emploee relations rnianacer. Ron-
aid itouser. questioned emploNee rank (Cross. we do not rel uipoxn the fact
that (ross was openlI prounin and that Respondent knew of hio Ilpport
for the Union In additlon. there a r everal tpographlcal error, in the
Administrative I.aw Judges', )ecirl,o which we herebh correct Ihe crrlect
cltation for Plaitr,,nic ( In . Is 233 NI RB 155 1977) the correct ltltion
for Hilrt,n Horiels (Crpratirn d , a Statrler Hi/ltro Htl/ Is 93 NI R 197
(19711: and. in the litussilon of inmploee Relations Mairacer (ox' teSti-
minv concerning h conrersallons itlh ellrnploee .llJ. the Adillilllntlllte
law Judge inadlertentlx referred to August 2 rather than fimrh t25 as the
date (Cox testtifie he did nlt recall seeitng l None f the crreclltio
affects our declsrin herein
I('otparc Sidlt, re I tl .iiir, l i tl. /ilt . 204 N I.R 448 (197 )
240 NLRB No. 120
present wages and benefits are placed on the table."
fHe further stated that "the Company would bargain
long and hard and would only grant what is econom-
icall feasibly . . . . At Kingsport Press. the compa-
ny and the unions bargained for eight years and nev-
er reached an agreement . . . bargaining that ended
in lost jobs and no contract .... "
Although it is permissible to inform employees of
the realities of the collective-bargaining process.
which necessarily include the possibility that the
union might trade away some existing benefits in or-
der to obtain some other benefits and that reaching
agreement may be difficult, an employer violates the
Act when it makes a bargaining from scratch state-
ment that can reasonably be interpreted as a threat
either to unilaterally discontinue existing benefits
prior to negotiations or to adopt a regressive bargain-
ing posture to punish the employees for choosing col-
lective representation.' In determining whether such
a statement is unlawful, the totality of the surround-
ing circumstances must be considered, including the
context of the statement itself and the presence of
contemporaneous unfair labor practices.'
In its speech. Respondent asserted that it "would
bargain long," not that there was a possibility negoti-
ations might be long and difficult. This statement
was followed by the graphic example of a company
which bargained for 8 years without reaching agree-
ment, thus illustrating for the employees what Re-
spondent meant by "long" bargaining. Such state-
ments, when viewed in the context of Respondent's
interrogations of an employee, threats of plant clo-
sure, and withholding of benefits because of employ-
ees' union activity, clearly implied to the employees
the threat that Respondent would not bargain in
good faith, but would instead adopt a regressive bar-
gaining posture in order to punish the employees if
they chose collective representation. In so doing. Re-
spondent violated Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Mad-
ison Kipp Company, Johnson City, Tennessee, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
I. Insert the following as paragraph l(e) and relet-
liult Brother, Ineorpiorated 235 NlRB 08 t 19781: (,,ah and Equip-
,,t:i Sal, (r/,. 228 NLRB 440 (1977i
lIi iBrlher Iniporartted. iura. It tron. Inc .tln Diston). 199
Nl RB 131 1972}
Madison Kipp (oinpany and Mrs. Pats Ellis. ('aie
MADISON KIPP COMPANY
_ .........
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ter the subsequent paragraphs accordingly:
"(e) Threatening employees that if they select the
Union to represent them it will bargain from
scratch."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
Not ICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were represented
and afforded the opportunity to present evidence in
support of their respective positions, it has been
found that we have violated the National Labor Re-
lations Act in certain respects and we have been or-
dered to post this notice and carry out its terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a represen-
tative of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
Accordingly, we give you these assurances:
WE WILL NOT question our employees about
their union membership, activities, or desires.
WE WILL NOT threaten our employees that the
plant will close or move if they select the Union
as their collective-bargaining representative.
WE WILL NOT threaten our employees that a
wage increase they would otherwise receive is
being withheld because of their union activity.
WE WILL NOT threaten our employees that a
promotion promised to them is being withheld
because of their suspected union involvement.
WE WILL NOT tell our employees if they select
the Union to represent them we will bargain
from scratch.
WE WILL NOT volunteer information to our
employees on ways of avoiding service of a
Board issued subpena which interferes with their
right to participate in Board proceedings.
WE WIl.L NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed to them in
Section 7 of the National Labor Relations Act.
MADISON KIPP COMPANY
DECISION
STATEMEN1 OF HE CASE
ROBERT C BATSON, Administrative Law Judge: This pro-
ceeding under the National Labor Relations Act, as
amended, 29 U.S.C. 151, et. seq. (herein the Act), was
heard before me on November 17 and 18, 1977,2 at John-
son City, Tennessee, based on a complaint and notice of
hearing issued by the Regional Director for Region 10 (At-
lanta, Georgia), on September 9, growing out of a charge
filed on July 21, by Mrs. Patsy Ellis, an individual, against
Madison Kipp Company, herein Respondent.
The principle issues presented are whether, in violation
of Section 8(a)(1) of the Act, Respondent, on various dates
and occasions, between March and June 9, the day before
the Board-conducted union representation election, en-
gaged in coercive interrogation of its employees concerning
their union membership, activities, and desires, and the
union membership, activities, and desires of other employ-
ees: threatened its employees with loss of existing wages
and other benefits if the Union were selected as their col-
lective-bargaining representative; threatened its employees
with loss of promotions if they joined or engaged in union
activities: threatened its employees with plant closure if
they joined or engaged in activities on behalf of the Union;
threatened its employees that an increase in night shift pre-
mium pay was being withheld because of their union activ-
ities; promised its employees improved benefits and work-
ing conditions if they refrained from joining or engaging in
activities on behalf of the Union; and, whether Respon-
dent failed and refused to recall Patsy D. Ellis from sick
leave, on or about April 1, because of her membership in,
and activities on behalf of, the Union, or other protected
concerted activities in violation of Section 8(a)(3) of the
Act.
All parties were represented throughout by counsel and
were afforded full opportunity to present evidence and ar-
guments, and to file post-hearing briefs. Briefs have been
received from counsel for the General Counsel and Re-
spondent. Record and briefs have been carefully consid-
ered. Upon the entire record, including consideration of
briefs, and my observation of the testimonial demeanor of
the witnesses, I make the following:
I 'this case came on for hearing consolidated with Case 10-RC-11068 for
hearing on objections to the election in that case. Subsequent to the close of
the hearing. counsel for the General Counsel filed with me a telegraphic
motion that Case I-R(' 11068 be severed from Case 10-CA--12946 and
remanded to the Regional Director for appropriate disposition of the
petitioner's request to withdraw its objections to the election. On August 3.
1978. by telegraphic Order, I granted the General Counsel's motion to sever.
and remanded Case 10(RC 11068 to the Regional Director for Region 10.
for appropriate action on the petitioner's request to withdraw its objections.
' All months and dates hereafter are 1977. unless otherwise indicated.
The facts found herein, are based on the record as a whole and on my
observ;ations of the witnesses testifying under oath. Credibility resolutions
halve been derived from such record and observations. with due regard for
the logic of probability under the teachings of .L RB. v. Walon Manufac-
lurin ( mpan, 369 U.S. 404 (1962). No testimony has been pretermitted.
and leslimony not discussed has been in conflict with credited testimony or
is incredible and unworthy of belief.
MADISON KIPP COMPANY 881
FINDINGS OF FA(
I THE BSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find,
that at all times material herein, Respondent was a Wis-
consin corporation with an office and place of business
located at Johnson City, Tennessee, where it is engaged in
the die cast manufacturing of aluminum products. During
the 12 months preceding the issuance of the complaint.
which is a representative period, Respondent sold and
shipped finished products valued in excess of $50.000 di-
rectly to customers located outside the State of Tennessee.
Accordingly, I find that at all times material herein, the
Respondent is, and has been an employer engaged in com-
merce within the meaning of Section , 2(2), (6), and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, and at the hearing Respondent
stipulated, and I find, that Oil, Chemical and Atomic
Workers International Union. AFL-CIO, herein the
Union, is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
III ALLEGED UNFAIR LABOR PRACTICES
As heretofore noted, Respondent is engaged in the die
cast manufacturing of aluminum products, and at all times
material herein employed approximately 100 employees in
the operation of its Johnson City, Tennessee, plant. The
plant operates three shifts; the first shift from 11:30 p.m. to
7:30 a.m.: the second shift, from 7:30 a.m. to 3:30 p.m..
and the third shift, from 3:30 p.m. to 11:30 p.m. Insofar as
the record herein discloses, the first union activity at Re-
spondent's Johnson City plant occurred in the spring of
1976, when the Union mounted an organizational drive
among Respondent's employees which culminated in an
election in May of that year, which the Union lost. The
union organizational activity out of which the instant
charge arises commenced about March I I when the Union
resurrected its organizational activities there, which result-
ed in the filing of a petition for Certification of Representa-
tive on April 19. A Board-conducted election was held on
June 10, which the Union also lost.
The complaint, as amended at the hearing, sets forth 23
specific allegations, involving eight of Respondent's super-
visors, which the General Counsel contends violates Sec-
tion 8(a)(l) of the Act. All the 8(a)(1) allegations, with one
exception, occurred between April 20 and June 9, the one
exception occurring about March 18, a week after resump-
tion of union activities. As might be expected, most of the
alleged violations are supported by the testimony of one
employee witness and are disputed by either an outright
denial by the supervisor involved, or testimony by the su-
pervisor that throws an entirely different cast upon the
events-a cast that would make the comments not violative
of the Act. Similarly, the events upon which the allegation
of unlawful refusal to recall Mrs. Ellis from sick leave rests,
are in sharp dispute. I have in some instances credited
some, but not all, of the witnesses' testimony. See Chaim-
pion Papers, Inc. (Ohio Division), 393 F.2d 388 (6th Cir.
1968). However, I shall not, in each instance, articulate my
rationale for crediting or refusing to credit a witness.
A. Interrogation and Threat of Plant Closure -
John Pohto
Employee John Pohto testified in support of the first
allegation of the complaint: a threat of plant closure on or
about March 18. Pohto testified that while in the perfor-
mance of his job on the first shift, he was returning to the
tool room when he overheard fellow employee, Paul John-
son, tell his (Johnson's) father, die technician, Jim John-
son,4 that somebody had tried to get him to sign a union
card. According to Pohto, Jim Johnson told Paul "that if
the Union got into Madison Kipp, they would move." Jim
Johnson, while admitting that he talked with his son and
other employees about the Union, denies making the state-
ment attributed to him by Pohto. Paul Johnson denied that
his father ever talked with him about the Union.
The General Counsel contends that the conflict in the
testimony between Jim Johnson and Paul Johnson as to
whether Jim Johnson ever talked with his son about the
Union, warrants discrediting both witnesses. I do not deem
that conflict to be a sufficient basis to discredit both these
witnesses. Accordingly, I find that Jim Johnson did talk
with his son about the Union. However, his denial of mak-
ing the statement attributed to him by Pohto was not im-
pressive. Pohto impressed me as a reliable witness who tes-
tified in a straightforward and convincing manner
concerning several allegations of the complaint. Except for
this incident, none of the allegations supported by Pohto's
testimony are categorically denied. Accordingly, I credit
Pohto and find the incident constitutes a threat to close the
plant if the Union became the collective-bargaining repre-
sentative of the employees.
Pohto testified concerning three instances of coercive in-
terrogation as the union campaign progressed. About a
month before the Board conducted election, Foreman Mil-
lard Hatfield approached Pohto and asked him how he felt
about the Union. Pohto expressed his opinion of the
Union, and Hatfield responded that some unions were
good and some were not, and continued by stating that the
Union would never get in at Madison Kipp.
About a week before the election, Foreman Robert Bax-
ter approached Pohto in the tool room, where Pohto was
working, and also asked him how he felt about the Union.
Pohto again expressed his opinion of the Union and Baxter
replied "a union would never get into Madison Kipp."
The third instance of interrogation testified to by Pohto,
occurred about I week before the election, when Assistant
Plant Foreman Claude Scott asked him how he felt about
the Union. After telling Scott what he thought about the
Union, Scott stated, "you are going to vote, no, aren't
you?"
4 Die technician Jim Johnson is admitted to be a supervisor.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither Baxter nor Hatfield were called to testify by Re-
spondent and no reason for their failure to be called was
proffered. Thus, Pohto's testimony with respect to Baxter
and Hatfield stands unrefuted or modified. Assistant Plant
Foreman Claude Scott admitted that he probably asked
Pohto how he felt about the Union but states that he does
not remember saying, "you are going to vote no, aren't
you?" Scott did testify that prior to the election he ap-
proached many employees, as many as 75, and asked them
"if they would vote no." In my view, it makes little differ-
ence whether Scott or Pohto is credited as to this incident.
For clearly Scott's admission that he probably did ask Poh-
to how he felt about the Union and that he also probably
asked Pohto, "if he would vote no," constitutes coercive
interrogation. Respondent contends that the foregoing in-
cidents of interrogation, as with the other allegations of
interrogation, are no more than isolated remarks, unac-
companied by any threats of reprisals or promises of bene-
fits, and are not coercive. The questions posed to Pohto by
these three supervisors were clearly designed to ascertain
whether Pohto was supporting the Union and how he in-
tended to vote in the upcoming union election. While it is
true that there were no threats of reprisals or promises of
benefits made at the time of these interrogations, there
were other contemporaneous unfair labor practices being
committed by this Respondent. Accordingly, I find that
Respondent violated Section 8(a)(1) of the Act, by the con-
duct of Baxter, Hatfield, and Scott, as set forth above.
Threat of Plant Closure-David McLemore
Several days before the June 10 election, employee Da-
vid McLemore was in the office of his supervisor, Jerry
Shaw. The two of them were alone. McLemore asked Shaw
to express his views on the Union. Shaw responded that he
had worked for a union shop and expressed the opinion
that the company could treat the employees better if there
were no union present. McLemore then asked Shaw what
might happen if the Union came in. Shaw replied, "the
plant could pack up and move out, but it would be more
costly than it would be worth." McLemore then asked
Shaw if the company had too much invested in the plant to
move. Shaw replied, "yeah." Shaw's version of the conver-
sation is that McLemore asked him if the plant would close
if the Union came in. Shaw replied that he could not re-
spond to that question.
In her brief, the counsel for the General Counsel argues
that either version of this conversation would constitute an
unlawful threat of plant closure, inasmuch as Shaw's fail-
ure to respond to McLemore's inquiry concerning plant
closure and assure McLemore that the plant would not
close, constitutes an implied threat of plant closure. How-
ever, in reciting the relevant testimony in her brief, the
counsel for the General Counsel states, "foreman Jerry
Shaw stated the plant could be closed down if the Union
got in at Madison Kipp." She neglected to complete the
statement, by adding "but, it would be more costly than it
would be worth."
While McLemore's testimony appeared to be confused, I
am convinced that his testimony, as developed on cross-
examination, presents the more reliable version of this con-
versation with Shaw. Accordingly, I credit his version of
this event. However, I do not deem Shaw's statement to
constitute a threat of plant closure if the employees select-
ed the Union to represent them. On the contrary I deem
Shaw's response to McLemore's inquiry as to what would
happen if the Union came in, to be an assurance to Mc-
Lemore that the company would not close the plant be-
cause such would not be economically wise. Granted, there
are circumstances where assurances against plant closure
might be given in such a way as to constitute a veiled threat
that such would occur. However, here, Shaw gave McLe-
more valid reasons why Respondent would not close the
plant.
Accordingly, the General Counsel has failed to sustain
the burden of proof that Shaw threatened McLemore that
the plant would close because of the union activity.
Threats that Night Shift Premimum Pay was Withheld
Because of Union Activities April 21, 1977, Notice
Mike Jones
In December 1976, some of the first shift employees
complained to management that their night-shift premium
pay differential was low in comparison with other compa-
nies. The employees were told that Respondent would look
into the matter to determine whether or not their shift dif-
ferential was low. According to Plant Manager Jeff Mit-
chell, Personnel Manager Roger Cox was instructed to
make a spot survey to ascertain the night shift pay differen-
tials paid by similar employers in the area. Mitchell testi-
fied that when Cox contacted Dresser Industries, a local
comparable company, he was informed by Dresser's per-
sonnel manager that Dresser was then in the process of
conducting a more detailed survey of area wage standards,
and would make the results of that survey available to
Madison Kipp. It appears that Cox, thereafter abandoned
his spot survey and awaited the Dresser Industries' survey
report. According to Mitchell, about the middle of April,
the Dresser survey report was received by Respondent.5
According to Mitchell, by the time the Dresser survey was
received by Respondent, it had received the Union's peti-
tion for Certification of Representative.
As heretofore noted, the Petition was filed on April 19.
On April 21, Plant Manager Jeff Mitchell had the follow-
ing Notice To Employees prepared and posted on the plant
bulletin board:
Dear fellow employees:
This is to keep you up-to-date on the questions
raised about our night shift premium.
When we met last December, some of you ex-
Although former personnel manager, Roger C(ox, was called by Respon-
dent to testif 5 concerning other allegations of the Complaint, he was not
questloned cotncerning his role in doing a spot surve5 to determine night
premium differentials or in obtaining the Dresser survey report. Thus, Re-
spondent's evidence as to what it did as a result of the employee complaints.
is based upon the testimony of Plant Manager Jeff Mitchell. which was
elicited hb Respondent without objection b the General Counsel. At the
timte (Cox testified. neither Responident nor the (JGeneral Counsel attempted
to question ('ix concerning his role in these events. Therefore. the testimon 5
of Mitchell concerning the steps taken bh Respondent to obtain the pa 5
conipalra;hility data is unrefuted
MADISON KIPP COMPANY
pressed concern that our premium for night shift work
was low in comparison to other companies. We told
you then that we would check into the situation and
find out if that was true. Since a wage survey of area
companies was then in progress by an area company.
we decided to wait and see how we compared to other
companies in that survey.
The survey is now completed and we have looked
over the information in that survey.
Unfortunately. we cannot now take any action
based upon the information. While we were waiting to
get the information from the survey, the Union began
its campaign. Since we were waiting for the informa-
tion from the survey. we had made no specific deci-
sion before the union campaign began. We are in a
position with this union campaign where it could vio-
late the law if we were to make a commitment or act
upon this new information now.
The labor law says that we can only proceed with
plans that we had specifically made and definitely
scheduled for implementation before a union cam-
paign arose. If we deviate from the principle, then it
looks as if we are trying to buy votes against the
Union. This is unlawful.
Regardless of the outcome of the union campaign.
once it is over we will then be free to act upon the
information in the surey'. You can rest assured that
this premium matter will receive our full attention.
In the late evening of May 10, after a plant softball
game, Mitchell, along with Personnel Manager Cox, met
with several employees who had participated in the softball
game at a local night spot, called "The Cottage." During
the course of this after-game celebration. while all were
imbibing beer, employee Mike Jones asked Mitchell about
their night shift differential and told him "it seemed funny
they didn't hear anything about it until they got wind of
the Union." Mitchell told the employees that the day they
got their information back from Dresser Industries. they
also got the Union's petition. and that their hands were
tied during the union activities. Mitchell corroborates
Jones in this regard. stating that he told them he could not
grant or change any polic\ because of the union campaign,
but after the election, whichever way it went, they would
make the change.
The complaint alleges that the notice posted on April 21
and the comments made by Mitchell on May 10 constitute
a threat to employees that an increase in night shift premi-
um pay was being withheld because of their union activi-
ties. In substance, Respondent contends that it was pre-
cluded from taking action based on the results of the area
survey since it had made no prior decision to grant any
increases based thereon, and that it did not violate the Act
by stating that it could not grant increases because of the
union campaign. The counsel for the General Counsel ar-
gues that when, in response to the employees' complaints
concerning their night pay differential. Respondent agreed
to compare their night pay differential with those of area
companies that Respondent impliedly promised to abide
by the results of the survey. She further argues that the
statement in the notice posted on April 21. concerning the
fact that to take action on the survey now would look "as if
we are trying to buy votes against the Union", could only
be interpreted as meaning that an increase would be forth-
coming were it not for the union campaign.
The Respondent's interpretation of the current case law
in this area is not entirely correct. The general rule is that
an employer should continue to grant or withhold benefits
as he would if a union were not in the picture, and if his
action in granting or withholding benefits is prompted by
the presence of a union, he violates the Act.6 Thus, Re-
spondent's view of the current case law, that the decision to
grant the wage increase must have been made prior to the
advent of the Union, too narrowly construes the rule re-
quiring one to do what one would normally do absent the
presence of a union. While this rule is easy to enunciate, it
is difficult to implement from a pragmatic standpoint,
which has resulted in employer complaints concerning alle-
gations of this nature that "they are damned if they do, and
damned if they don't." While it is entirely possible that had
Respondent here granted a night shift premium increase,
assuming such was warranted by the results of the survey,
an allegation that the granting of those benefits was to
cause employees to reject the Union might well be before
me in this case. It should be noted that there is no 8(a)(3)
allegation that wage increases were withheld because of the
union activity, but merely that Respondent threatened that
increases in night shift premium pay was being withheld.
Indeed, the results of the survey are not in the record. Inso-
far as this record discloses, the wage survey obtained by
Respondent might well not warrant an increase in the night
shift premium pay.
Under all the circumstances here, Respondent impliedly
promised the employees that it would abide by the results
of its investigation into a comparison with other companies
of their night shift pay differential. Thus, to subsequently
tell the employees that it had obtained the results of the
survey, or its investigation into the rates paid by other
companies, but could not act upon that information at this
time because of the union activity, effectively threatened
its employees that the presence of the Union was prevent-
ing them from obtaining a pay increase.
Accordingly, Respondent violated Section 8(a)(1) of the
Act by threatening its employees that an increase in night
shift premium pay was being withheld because of their
union activity.
Interrogation and Promise of Benefits - Frank Cross
Ronald Houser was employed by Respondent as em-
ployee relations manager about April I but did not assume
the full duties of that position until May 2. During the
interim, Houser tried to get acquainted with all the em-
ployees, during the course of which, in mid-April, he went
to the plant during the first shift to talk with those employ-
ees. During the course of this visit he had employee Frank
'(OwO Drug. Inc.. 237 NLRB 231 (1978): G( Murphv (Co. 233 NI RB
604. 6116 (1977). citing Ma Department Stores. 174 NLRB 770 01969):
(, 4 ( rporantr.wn. 196 N.RB 538. 544 ( 1972). and hec (;rear 411alnl- and
P.ii, lica (mpran. Inc.. 166 NLRB 27 (1967). ('f.. hAereer. Ilectrh(rn
.lal,, !sriu, ( ,,. 208 Nl.RB 302. 306 (1974)
qSq
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cross summoned to Foreman John Cole's office, where he
introduced himself and told Cross a little of his back-
ground, and then asked Cross to tell him something of his
(Cross') background. In relating his background to Houser,
Cross told him that he (Cross) had been president of the
Union when he worked at Rainbow Bakeries. Houser then
asked Cross what he thought of Madison Kipp since he
had come to work there. Cross spelled out five or six differ-
ent complaints he had with the Company and then, flip-
ping one of the two union buttons he was wearing, said
"and that's the reason that I am wearing these and feel the
way that I feel." Cross stated that he thought the Union
could do a lot for the employees. Houser asked Cross what
the Union could do for them that the employer could not.7
In my view, Houser's interrogation of Cross on this occa-
sion was not coercive since Cross was openly prounion,
and the questions were not designed to ascertain his union
sympathies. Moreover, even by Cross' version, there were
no threats or promises expressed or implied to dissuade
him from his union activities.
The complaint alleges that on or about April 10, employ-
ee relations manager, William Ronald Houser, promised
employees improved benefits and working conditions if
they refrained from joining or engaging in activities on be-
half of the Union. In her brief, counsel for the General
Counsel does not address this allegation. Presumably, the
testimony relied upon to support this allegation was Cross'
testimony that Houser told him that he (Houser) was there
to try to solve some of the problems. Such statement, even
if made, does not constitute an unlawful promise of bene-
fits.
Threat of Loss of Promotion - Mike Jones
Mike Jones testified that 3 or 4 weeks before the elec-
tion, he was in Foreman John Cole's office when Cole told
him that he was going to try to promote him from class B
to class A set-up-man. The following day, according to
Jones, Cole told him that he had gotten him a raise, but
that he had to discuss it again. Five or six days later, Cole
told Jones that the reason he had not gotten the raise was
because they thought that he (Jones) was backing the
Union.
According to Plant Manager Mitchell, in late April,
Jones came to him and requested permission to promote
three employees, one of which was Jones. Mitchell author-
ized Cole to start the paper work on Jones, and one of the
other two employees, but directed that Cole hold up on
processing the other one since the other employee had re-
cently transferred from day shift, and Cole had not had
7The foregoing is based upon the testimony of Houser. whose version of
the conversation I credit. Cross testified that Houser initiated the conversa-
tion about the Union by observing. "I see you're wearing a union button."
Cross said. "Yes, sir." Houser asked. "Do you feel we need the Union in the
plant?" Cross replied. "I do." Houser then asked Cross why he thought they
needed a union and observed that the Company could do as much for them
as the Union. Since Cross had told Houser that he had been president of the
Union at another employer and was at that time wearing two union buttons
on his shirt I do not believe Houser would have asked (ross. "Do you feel
like we need a union in the plant?" but may well have inquired, as he admits
he did, what Cross thought the Union could do for them.
enough time to make an evaluation.
A couple of days after the last conversation with Cole,
Jones received his promotion to Class A welder and the
corresponding wage increase.
Cole does not deny the allegation that he told Jones,
prior to the time Jones received his promotion, that he
thought he had not gotten the raise because they (Mitchell
and Houser) thought he (Jones) was backing the Union. I
agree with the counsel for the General Counsel that wheth-
er Jones actually got the promotion and raise is not at
issue, but only the allegation that Cole told him in his opin-
ion he had not gotten it because of his union activities.
Such a threat violates Section 8(a)(1) of the Act.
Threat of Loss of Existing Benefits - Frank Cross, Mike
Jones, Billy Laws
The complaint alleges that Foreman John Cole, on vari-
ous dates in May and June, and Plant Manager Jeff Mit-
chell, on June 3 and 9, threatened employees with the loss
of existing wages and other benefits if they selected the
Union as their collective-bargaining representative. In sup-
port of this allegation the counsel for the General Counsel
elicited testimony from employees Frank Cross, Mike
Jones, and Billy Laws, with respect to the allegation per-
taining to Foreman Cole. The General Counsel and Re-
spondent introduced into evidence a copy of a speech (Jt.
Exh. 3) read to all unit employees on June 9 by Mitchell.
According to employee Frank Cross, in late May or ear-
ly June, he had occasion to go to the office of Foreman
John Cole where he found Cole discussing the Union with
employee Jeff Clark. In the course of this discussion, Cole
told Clark, "f the Union comes in, I guess you know you
can go back to minimum wages," and continued "you
could lose your benefits." Cross took issue with Cole's
statement, contending in substance that the employer
could not reduce any benefits as a result of unionization.
Cole then told Cross, "they can take everything away from
you that you have now, and go back down to minimum
wages." Cross asserts that Cole then offered to bet him $5
that he (Cole) was right, to which Cross replied that he
would do better than that, he would bet him "$10.00 to
$5.00."
Cross further asserts that 3 or 4 days before the election,
he and employee Mike Jones went to the plant about 11:30
p.m. Neither employee went to the plant to work, but Cross
went to obtain some personal items. Cross went to the door
of the plant, and Cole came out of the plant where he and
Cross renewed their discussion with respect to the bet that
they had made in the office.
According to Mike Jones, this event occurred on the
same night as the conversation with Plant Manager Mit-
chell at "The Cottage" after he and Cross had consumed
several beers. Jones testified that he heard Cole tell Cross
during their argument about whether or not benefits could
be lost, that if the Union came in they would start from
minimum wage and would lose all benefits and have noth-
ing but a blank sheet of paper.
Cole denies any conversation in the office with Cross
with respect to a bet as to whether or not benefits could be
lost as a result of unionization but admits that 3 or 4 weeks
MADISON KIPP COMPANY 885
before the election Cross and Jones came to the plant, at
which time he and Cross made a bet concerning the results
of unionization. 8 According to Cole, Cross made the state-
ment that if the Union got in it would start adding to the
benefits they presently had, and Cole replied, "No, you are
wrong, the company could lay everything on the table and
start with a blank sheet of paper or from scratch and nego-
tiate everything." Cross offered to bet Cole $5 that such
was not the case, and Cole accepted the bet. Cole testified
that on several occasions after this he would hold out his
hand to Cross as if to receive the bet.
I am unable to credit Cross' testimony with respect to
the alleged conversation in Cole's office around June 1. It
appears, according to Cole and employee Mike Jones, that
the bet was initially placed some 3 or 4 weeks before the
election, when Jones and Cross came to the plant after the
above-described events occurring at "The Cottage." In my
opinion, Cross was a generally unreliable witness, who was
careless in his testimony not only with respect to the dates
of his conversations with Cole concerning the potential loss
of benefits, but also as to what Cole actually said to him.
The testimony of Mike Jones does little to corroborate
Cross' version of the incident outside the plant on May 10.
Jones admits that he had had several beers and at one
point he returned to the automobile and sat inside listening
to the radio. Therefore, I credit Cole's version of the con-
versation, wherein he disputes Cross' claim that the Union
could only add to the present benefits by stating "No, you
are wrong, the company could lay everything on the table
and start with a blank sheet of paper or from scratch and
negotiate everything." As discussed more fully below in the
analysis of other similar statements made to all employees
on June 9 by plant manager Mitchell, I find that Cole did
not unlawfully threaten that employees would lose benefits
if they selected the Union.
Respondent and the General Counsel stipulated that on
June 9, the day before the Board conducted election, Plant
Manager Jeff Mitchell read a speech to all employees in
three separate groups. The speech read to the employees
was received into evidence as Joint Exhibit 3. The follow-
ing quoted portions of the speech are alleged by the coun-
sel for the General Counsel to constitute a threat that em-
ployees would lose existing wages and other benefits if the
Union became their collective-bargaining agent:
A union bargains from scratch, not from where we
are now.
I have heard you are being told that if OCAW gets
in here, they are guaranteeing that you will keep all of
your excellent wages and benefits, and that the only
way that you can go is up. This is not true! Don't you
believe it. The law clearly states that this is not true.
and I quote. (Read from law book).
The United States government and the NLRB do
not guarantee employees that the collective bargaining
8 It appears that this event occurred on the same night as the softball
game. after which Jones. ross. Mitchell, and Houser, along with other
employees met at "The Cottage," which is alleged in the complaint to havse
been May 10. It further appears that Mitchell ma. have told Jones nd
Cross not to report for work that evening due to their having consunied
some beer.
process starts from 'where you presently are in wages,
insurance, pensions, profit sharing and all other condi-
tions of employment' and 'that there is only one way
to go and that is up.' Nor did the Board give its word
to that effect. Nor did the government guarantee 'that
you will lose no benefits except those you wish to
change.'
This statement appears in the Decision of the
United States Courts of Appeals for the Sixth Circuit,
in the Bendix Corporation v. N.L.R.B. 9
Some of you may have been told that if the OCAW
were elected by the employees it would bargain a con-
tract with the company guaranteeing better wages,
more holidays, etc. I will guarantee you that the com-
pany would only bargain and agree to what is fair and
right economically for the continuation of its opera-
tion in Johnson City. The law does not require that the
company agree to anything or make concessions. It
says the company must merely bargain in good faith
at reasonable times and places, and bargaining starts
with a clean slate-from scratch-all present wages
and benefits are placed on the table-it is simply a
horse trading process. The company would bargain
long and hard and would only grant what is economi-
cally feasible. The law does not guarantee you that
when the horse trading is over, you won't come out
with less than you presently have. At Kingsport Press,
the company and the Unions bargained for eight years
and never reached an agreement. Did the union mem-
bers pay dues during the eight years in order to pay
the Union for its bargaining-bargaining that ended
in lost jobs and no contract? You better believe the)
did . Bear in mind we would not agree to anything
that would deopardize Isicl jeopardize the business we
now have and the new business we hope to get....
Respondent contends that the remarks made by Plant
Manager Mitchell in his June 9 address to all employees
concerning the position from which Respondent would
bargain, and the statement that there was no guarantee
that the employees would not come out with less than they
presently had, were merely statements of the realities of
collective bargaining. Similarly, it contends that the state-
ment made by Cole, as credited herein, is merely a state-
ment of fact pertaining to the Company's bargaining obli-
gation, and does not constitute a threat of loss of existing
benefits for the selection of the Union.
The Board has dealt with the issue of whether or not
such statements by an employer during the course of a
union campaign violates Section 8(a)(1) of the Act in nu-
merous cases. No purpose would be served by here review-
ing all such cases, for the determination in each case turns
upon the facts and all the surrounding circumstances of the
case. In Coach and Equipment Sales Corp., 228 NLRB 440
(1977), the Board set forth an excellent summation of the
law of "Bargaining from scratch" remarks. There the
Board stated:
"Bargaining" from scratch is a dangerous phrase
which carries within it the seed of a threat the em-
Bind (orporaitlm * 1. R B. 400 F 2d 141 (6th (ir 1978i
MADISON KIPP COMPANY 5. _ _ ............ ..
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer will become punitively intransigent in the event
the Union wins the election. The Board has held that
such "hard bargaining" statements may or may not be
coercive, depending on the context in which they are
uttered. Thus, where a bargaining-from-scratch can
reasonably be read in context as a threat by the em-
ployer to unilaterally discontinue existing benefits
prior to negotiations, or to adopt a regressive bargain-
ing posture designed to force a reduction of existing
benefits for the purpose of penalizing the employees
for choosing collective representation, the Board will
find a violation. Where, on the other hand, the clearly
articulated thrust of the bargaining-from-scratch state-
ment is that the mere designation of a union will not
automatically secure increases in wages and benefits,
and that all such items are subject to bargaining, no
violation will be found. A close question sometimes
exists whether bargaining-from-scratch statements
constitute a threat of economic reprisal or instead con-
stitute an attempt to portray the possible pitfalls for
employees of the collective-bargaining process. [Fhe
presence of contemporaneous threats or unfair labor
practices is often a critical factor in determining
whether there is a threatening color to the employer's
remarks.
In Plastronics, Inc., 233 NLRB 151 (1977), the Board
stated the criterion by which such remarks are to be mea-
sured as the following:
Such statements are objectionable when, in context,
they effectively threaten employees with the loss of
existing benefits and leave them with the impression
that what they may ultimately receive depends in large
measure upon what the Union can induce the em-
ployer to restore.
Finally, in Tufts Brothers, Incorporated, 235 NLRB 808
(1978), the Board held:
It is permissible to inform employees of the realities
of collective bargaining which include the possibility
that the Union, in order to secure some other benefits,
might trade away some existing benefits.
With respect to Mitchell's speech to the unit employees
on June 9, counsel for the General Counsel argues in brief
that:
The speech talks of "bargaining-from-scratch" and
puts in all the appropriate catch words of "negotiat-
ing," "horsetrading." and "bargain in good faith." Re-
spondent's speech goes much further, however, threat-
ening the employees, that "the company would
bargain long and hard and would only grant what is
economically feasible" and, then, to emphasize the fu-
tility of unionization, goes on to tell the employees just
how long "long" can be by stating "at Kingsport
Press, the company and the unions bargained for eight
years and never reached an agreement." Did the union
members pay dues during the eight years in order to
pay the Union for its bargaining - bargaining that
ended in lost jobs and no contract.
Notwithstanding the presence of other contemporaneous
unfair labor practices, as found herein, a careful analysis of
the speech delivered to the employees by Plant Manager
Mitchell on June 9, in its totality, including the quote from
the Bendix Corporation v. N.L.R.B., discloses that Respon-
dent merely advised the employees of the realities of collec-
tive bargaining, and does not constitute a threat that the
employees would lose existing benefits prior to negotia-
tions, or that it would adopt a regressive bargaining pos-
ture designed to force a reduction of existing benefits, for
the purpose of penalizing the employees for choosing col-
lective-bargaining representation. I do not view the state-
ment contained in the speech, "the company would bar-
gain long and hard and would only grant what is
economically feasible," or the reference to the Kingsport
Press negotiations which resulted in 8 years bargaining
without an agreement, to warrant an inference that Re-
spondent would discontinue existing benefits and what the
employees may ultimately receive from collective bargain-
ing would depend in large measure upon what the Union
could induce the employer to restore. Plasironics, Inc., su-
pra.
I further find that Cole's statement to Cross, in response
to Cross' assertion that benefits could not be lost as a result
of negotiations does not constitute a threat that the em-
ployer would discontinue any existing benefits prior to ne-
gotiations, but merely conveys that all benefits are negotia-
ble. While I am bothered by Cole's placing a bet with Cross
concerning the results of negotiations, in view of the fact
that Cross was an open and vocal advocate of the Union, I
am persuaded that such conduct is not violative of the Act.
Accordingly, I find that Respondent did not threaten its
employees with the loss of existing wages and other bene-
fits if the Union were selected as their collective-bargaining
representative, but merely made them aware of the possi-
bility that as a result of negotiations their wages and bene-
fits might be less than they presently enjoyed.
Counseling its Employees To Avoid Service of Board
Issued Subpenas
On rNovember 10 and I 1, Employee Relations Manager
Ronald Houser had group meetings with all employees to
advise them that the hearing scheduled for November 17
and 18 would go on as scheduled, since the Union had
withdrawn from its agreement for a new election. During
the course of the meeting, according to employee Frank
Cross, Houser told the employees that some employees had
come to him stating that they did not want to testify, and
Cross quoted Houser as saying, "there's ways of getting
around, going down there and testifying. One way, if they
come to your door, don't answer the door. If the subpena is
down at the court house don't go after it, don't open it up,
and if they come here to the plant, the premises of the
plant, you come to me and tell me about it, and I will put
them off the premises. They've got no business here on the
premises."
Employee Michael Hartmen testified that Houser told
the employees there were ways of getting around a subpe-
, ( ,l u, tlrqi,,lm nI Salo. ( ,rp. 239 N. RB 340 19781.
MADISON KIPP COM PANY 887
na. Hartman stated that Houser told them they did not
have to answer the door and if it was left at the post office
they did not have to pick it up, or if they came on the
premises to serve a subpoena, to tell him and he would
have them put off the premises.
Houser admits that he told the several groups of assem-
bled employees that some employees had come to him and
expressed concern over the fact that they had been subpe-
naed, or that they would be, and inquired whether they had
to go to court or accept the subpena. He admits that he
told the assembled employees that the only thing he knew
concerning that was that subpenaes would come in one of
two ways. They would either be delivered in person. or
they would come by nail. He stated:
If you receive tihe subpoena by mail, it normally
would come either registered or certified mail. If it is
served on you in person, it normally would be done by
a U.S. Marshall.
He assured the employees. that:
If a U.S. Marshall came to the facility that my first
response would be to him, is 'why do you want to see
employee X.Y, or Z?' If he told me, which I would
require that he do that then I would then come to the
employees, and I would tell the employees that there
was an individual there to serve them with a summons.
indicate to them, what it was for. if the)' wanted to
come to the front office and accept. they could, if they
didn't want to. then the next step would be to tell the
person who was there that. 'I'm sorry, the employee
does not wish to see you. I'm sorry, but you'll have to
leave.'
As heretofore noted, I am unable to credit Cross, unless
his testimony is corroborated or otherwise supported by
circumstantial evidence in the record. As to Htartman, his
testimony concerning the allegation that Houser requested
the employees not to testify at the hearing is vague and
unreliable. In this regard. Hartman testified. "Well, he
brought up the subject about people would come to him,
and say they didn't want to testify in this case, and they
could get out of it, and he said they was ways of getting
around a subpoena, if you were subpoenaed." He thereaf-
ter testified substantially as in his pretrial affidavit, which
pertained only to this incident. The pretrial affidavit states
merely that Houser advised them that there were ways of
getting around being served a subpena and does not allude
to Houser's telling them how to avoid appearing in Court.
if they were served with a subpena. Thus, ouser's testi-
mony, in that regard, is substantially corroborated by that
of Hartman.
In its brief, Respondent tacitly concedes, as it must,
based upon Houser's own testimony, that Houser coun-
seled the employees how to avoid service of a Board issued
subpena. It contends that such counseling did not violate
the Act, citing in support thereof, Statler Hilton Hotel, 193
NLRB 187 (1971)., and Bauer Aluminumn Company, 152
NLRB 1360, 1367 (1965).
I view Houser's comments to the employees concerning
ways of avoiding service of a subpena analogous to advis-
ing employees on ways or means of avoiding compliance
with a subpena. The cases cited by Respondent in support
of its contention are inapposite. In Hilton, the Board held
that the employer did not violate the Act when its attorney
advised a prospective General Counsel witness. who had
expressed a strong desire not to appear as a witness, that he
did not have to appear unless served with a subpena 5 days
in advance, and offered to prepare a petition to revoke the
subpena if the witness so desired. The Board adopted the
Administrative Law Judge's conclusion that it was not nec-
essarily an unfair labor practice for an employer's attorney
to furnish a reluctant employee-witness with legal advice,
albeit, erroneous, concerning Board issued subpenaes, in
the absence of any inducement or threats of reprisals for
honoring the subpena.
In Bauer, the Board affirmed the trial examiner's now
Administrative Law Judge) conclusion that an employer
did not violate the Act when its supervisor told employees
they were not obliged to honor their subpenaes. but added
that the choice of whether to honor them or not was theirs.
There, the examiner found that the supervisors did not de-
liberately set out to induce employees to refrain from at-
tending the hearing, nor did they say or do anything apart
from giving their erroneous advice, which placed employ-
ees in fear of reprisal if they did come to the hearing.
The counsel for the General C'ounsel cites, in support of
its contention that ouser's conduct violated the Act.
American Service, Corp. and its wholly owned subhsidiarv
Southern Linen Supply & laundry Co.. In(.. 227 NLRB 13
(1976). That case also is inapposite on the facts here. In
American Service, Corp.. the Board affirmed the Adminis-
trative Law Judge's conclusion that an employer violated
the Act when its supervisors erroneously told employees
they did not have to appear in court, coupled with the
admonition that it did not know what would happen to
these employees if they did go to court.
The several cases in which the Board has addressed the
issue of an employer's advising its employees concerning
the service of, or compliance with, a Board issued subpena.
has not produced a clear and definitive criterion by which
to measure the employer's conduct. In The Babcock and
Wilcox, Co., 114 NLRB 1465, 1466 67 (1955). the Board
held that in the absence of any inducement or encour-
agement by the employer to disobey the subpena. the em-
ployer did not violate the Act when its attorney gave a
reluctant employee-witness advice on how to avoid honor-
ing the subpena. There, the employee had sought out the
employer's counsel for the purpose of obtaining advice
concerning the subpena. However. in Sunshine A4rt Studios.
Inc., 152 NLRB 565, 575 (1965). the Board adopted the
trial examiner's (now Administrative Law Judge) conclu-
sion that Respondent violated the Act when its supervisor
gratuitously told an employee who had been served a
Board subpena, that he could avoid going to Court by
being sick. The Examiner concluded that the supervisor's
statement "interfered with the right of employees to partic-
ipate in proceedings before the Board, and . . . further
tended to impede the Board in the exercise of its power to
compel the attendance of witnesses at its proceedings, and
to obstruct the Board in its investigation." Similarly. in
Smith & Wesson, 174 NLRB 1040. 1045 (1969), the Board
adopted the Administrative Law Judge's conclusion. that
MADISON KIPP COMPANY
, _ .........
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent violated Section 8(a)(l) of the Act when its
supervisor informed an employee that he did not have to
attend a Board hearing pursuant to a subpena which had
been delivered to his mother instead of to him. Again, this
was gratuitous advice given an employee, which the judge
concluded attempted to dissuade the employee from coop-
erating with the General Counsel and thereby interfered
with the effectiveness of the Board's process in securing for
employees vindication of rights protected by the Act.
From the foregoing, it appears that an employer does
not violate the Act when its agent gives employees advice
concerning service of, or compliance with, a Board-issued
subpena in response to the employees' request for such ad-
vice, or an indication that they desire to avoid compliance
with the subpena, absent any threats of reprisals for com-
plying with the subpena or inducements to them not to
comply. This is true, even though the advice given may be
erroneous. However, where the advice is gratuitously given,
and no legitimate employer interest is served as in Bauer,
supra, even in the absence of inducements to avoid compli-
ance with the subpena, the employer violates the Act.
Applying the foregoing to the instant case, I find and
conclude that Houser's counseling employees on how to
avoid service of a Board issued subpena interfered with
their Section 7 rights and the administration of the Act.
Assuming that some employees had expressed to Houser a
desire to avoid service of a subpena or compliance there-
with, Houser's communicating to all the employees his
ideas on how they could avoid service of a subpena could
not but have interfered with and restrained the employees
in the exercise of their right to appear as a witness for the
General Counsel.
The Refusal to Recall Patsy Ellis
The complaint alleges that on or about April 1, 1977,
Respondent refused to recall its employee, Patsy Ellis from
sick leave because of her union and/or other protected
concerted activities, in violation of Section 8(a)(3) of the
Act. The evidence establishing the pertinent facts up to
March 25 is not in dispute. Thereafter, until June 29, there
is essentially no undisputed relevant testimony in the rec-
ord. Credibility resolutions of these disputed facts are not
made easier by the apparent conflicts between trial testi-
mony and pretrial affidavits of Ms. Ellis and those who
take issue with her testimony.
The Undisputed Facts: Ellis was employed by Respon-
dent on September 22, 1975, and worked as a processor
until June 16, 1976, on which date she sustained a back
injury at the plant and was given an indefinite leave of
absence. Until the first part of January, she was compen-
sated by the employer's workmen's compensation insur-
ance carrier. Ellis was pregnant at the time she sustained
her injury. The baby was born in early January. In early
August 1976, apparently August 2, Ellis' physician, Dr.
W.R. Beaver, released her to return to light duty work if
such were available. On August 2, 1976, Ellis reported to,
then employee relations manager, Roger Cox that her phy-
sician had released her for light duty work. Cox requested
a written release and upon being told that she did not have
one, Cox telephoned the doctor's office and obtained ver-
bal confirmation of Ellis' report and permitted her to work
on August 2.11 Respondent subsequently received the writ-
ten release on August 5, 1976.
Ellis worked one shift, August 2, as a result of which she
was confined to her bed for 2 days and subsequently hospi-
talized again. She resumed her workmen's compensated
sick leave. In early January, Ellis' baby was delivered and
her workmen's compensation discontinued. During Febru-
ary and March Ellis contacted Cox several times in an at-
tempt to get her workmen's compensation benefits rein-
stated. In late January or early February Dr. Beaver
recommended that Ellis consent to a myelogram, a proce-
dure utilized for diagnostic purposes on patients with Ellis'
symptoms. The myelogram could aid in determining
whether she had a disk lesion which was causing her symp-
toms, rather than "left sacroilic strain" which he had diag-
nosed. Ellis declined "for personal reasons." According to
Dr. Beaver's clinical notes which were received into evi-
dence, she declined because she did not want to leave her
baby.
On March 25 Ellis was examined by Dr. Beaver, who
told her he had done all he could for her and she might as
well accept the fact that her back was going to hurt and
"try it back at work again." She testified that Dr. Beaver
did not say she was "released." Ellis testified that she re-
quested Dr. Beaver to send a "full report" to both Madison
Kipp and Kemper Insurance Company, the workmen's
compensation insurance carrier. According to Dr. Beaver's
clinical notes, Ellis asked him to send a copy of the report
to Kemper Insurance, but does not reflect a like request for
Respondent.' 2 In any event, Dr. Beaver did not send the
report to Respondent.'3
From this point on Ellis' asserted attempts to return to
work are in sharp dispute. Ellis testified that on March 25,
after her visit to the doctor, she went to the plant and
talked with employee relations manager Cox, at which time
she told Cox "what the doctor had said." She admits that
she did not ask Cox if she could return to work or tell him
that she had been released.
Ellis testified that on April I she again went to the plant
and talked with Cox, at which time she asked him if she
could return to work. Cox asked if she had a release. She
replied that she had asked the doctor to send a report to
the company, and that the doctor's office had verified that
the report had been sent. Cox told her he had received
nothing from the doctor.
According to Ellis, around April 7, she telephoned Cox
and was told by him that he still did not have anything
from the doctor and there was nothing he could do until he
got a doctor's report.
Cox testified that he did not recall seeing Ellis at the
plant on August 25 and does not believe that he did. Cox
C ('os initially testified that Ellis brought a written release with her on
August 2. However. the record reveals that the release was received b the
Emploer on August 5. as revealed b the date stamped on it. which corrob-
orates Ellis' ersion of the August 2 event.
In his testimony Dr. Beaver could not recall Ellis requesting that a cop)
of the report he sent to Madison Kipp.
Ellis' pretrial affidavit dated July 22 states that she told Cox about
April I that she had asked the doctor to send the report to the insurance
company.
MADISON KIPP COM PANY 889
further denied seeing or talking with Ellis on April I. On
that date the new employee relations manager. Ron Hous-
er, came on board and Cox spent the better part of the day
getting acquainted with him and introducing him to other
supervisors.
Cox testified that on April 7 Ellis visited him in his of-
fice, rather than telephoning him, and requested him to
help her get her temporary total workmen's compensation
benefits reinstated. He advised her she would have to have
the examination indicated by Dr. Kennedy in November
to determine the extent of her injury and whether it was
related to her work or her pregnancy. Ellis advised him
that she had already had the examination. Cox stated that
he placed Ellis' visit to his office as being on April 7, be-
cause it was the day before Good Friday. a holiday at
Respondent, and he had relatives visiting and was trying to
leave work early.
I am satisfied that Ellis did not visit the plant and talk
with Cox on March 25 and April 1. as she testified. In a
pretrial affidavit Ellis stated that she telephoned Cox in
March and asked if she could return to work, telling him
that she was ready. According to her affidavit, when she
told Cox she did not have a work release, he told her that
he could not let her come back until he had a release. The
affidavit further states that she telephoned Cox in April
requesting work and ". . .He said he couldn't let me come
back to work at all without a doctor's release." At the very
least Ellis' testimony up to this point reveals confusion as
to the dates she talked with Cox, and whether in person or
by telephone, or a deliberate embellishment of her at-
tempts to obtain recall from sick leave. Accordingly, I con-
clude that she talked with Cox on April 7 for the first time
subsequent to her visit to Dr. Beaver on March 25. I fur-
ther conclude, as hereinafter discussed, that Ellis did not
indicate on that date that she was ready to return to work
or that she had been released for work by the doctor: but
rather endeavored to obtain assistance in having her
workmen's compensation benefits reinstated.
After Ellis visited with Cox on April 7, concerning rein-
statement of her injury compensation benefits, Cox tele-
phoned the Kemper Insurance Company and talked with a
Ms. McNair who read him the comments placed in Ellis'
file by Dr. Beaver following her March 25 visit to him. Cox
requested the insurance company to send him a copy of
those notes. The request was complied with the following
week. I find and conclude that upon receipt of Dr. Beaver's
clinical notes relating to Ellis' March 25 visit to him, Re-
spondent learned for the first time that Ellis had been re-
leased for work on March 25.4
14The clinical notes prepared b Dr Beaver on NMarch 2. are:
3 25 77 - Continues to complain of pain localized primaril about
the left thigh I carefull, examined her sacroiliac Joint with radiation to
her buttocks and posterior motion on forward flexion and lateral lillln
secondar to the discomfort. Neulrolgica exam i enlirels normal ex-
cept for complaints of mild h pesthesia in the foot Motor sirenth B
normal Circumferential measurements are equal. I d not thlnk she
has lumbar disc I think her problems are related to sacroiliac ,traill
with continued minor discomfort I personall) don't think that Pais
wishes to return to work. t ndoubhtedl. this is effecttln her s niptonmil-
ogt She doesn't want ito leave her bab to have he mrneloranl dne
and I am equall) sure she would nt like to leasle the hah to go hack
to work
Ellis testified that about 2 weeks later she again went to
the plant and talked with Cox about returning to work,
offering to take any job he had on any shift. According to
her. Cox told her he still had not heard from her doctor
and asked that she give him a week to find out something.
According to Ellis, the following week she telephoned Cox
who initially told her that he would see what he could work
out. Five minutes later Cox telephoned her and asked if she
had a doctor's release. She told Cox she had given him all
the information the doctor had given her. Ellis contends
that the following day Cox told her that Dr. Beaver had
called and would not release her to go to work. She states
she then called the doctor who denied that he had talked
with anyone from Madison Kipp.
Continuing with Ellis' version of her efforts to obtain
recall, she telephoned Cox in mid-May and offered to take
less money to which Cox replied he would have to see what
he could work out.' 5 From mid-May to June 29 there was
evidently no contact between Ellis and any management
official. On that date Ellis went to the plant and, now deal-
ing with the new Employee Relations Manager Ron Hous-
er, asked if she could return to work. Houser asked if she
felt like she could do the job, and Ellis told him she would
give it all she had. '6 Houser then produced the clinical
notes of Dr. Beaver relating to Ellis' March 25 visit to him
and asked Ellis why she hadn't been working since March.
Houser then read the notes Dr. Beaver had made on Ellis
as a result of her March 25 visit.
Ellis testified that she telephoned Houser on June 30 and
requested any job available or a layoff slip. Houser asked
her to give him another day to work something out. She
further testified that on July I she again called and asked
for a layoff slip at which time Houser told her he had no
indication that she had tried to return to work. She asked if
she were terminated and he told her. "No" but she was no
longer considered an employee.
Houser testified that he talked with Ellis in his office on
June 29 and in substance corroborates Ellis' version of
what transpired up to the point of reading Dr. Beaver's
report. According to Houser, Ellis inquired then if she were
terminated and he told her no, but that she was no longer
considered an employee because she had not reported
within 3 days of her release by Dr. Beaver as required b
Respondent's rules. Houser denies that he saw Ellis on
June 30 or July I. stating that he remained at the plant in
connection with an NLRB investigation of challenged bal-
lots until about I a.m. on June 30. and left Johnson City
This could have been done a long time ago and she has olunl.ril
put it off. A this point. I have nothing to offer her and I am going t
release her from my care. effective this date.
FINAL DIAGNOSIS: I.eft Sacroiliac strain
She ma, he effectively considered released to work is of this date I
am making no determination at this time as to impairment It is unfor-
tunate that his problem has lingered on this Ing. I hase explained this
to) Patss and told her that I will send a cops of ni (office note this date
to Kemper Insurance Co. She has requesled that I d this and so n-
formed me hat the Insurance Company is presenlls sueing her.
i, ('ox denies talking suth tilis it ans ime during the month of Max tie
testified thai In Mas I1oulser look oier all personnel nmatters and Ihat an l
Inquir, frilm Ellis concerning her return to sork would have been referred
to Hiuser.
16 Ellis told Houser that she had diflficult doing some of her housework
aniid laktg care of the habh because of her hack njurs.
MADISON KIPP COMPANY 9
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 9 a.m. to go to Knoxville and move his family to
Johnson City. Houser did not return to Johnson City until
July 5.
I must credit Houser's version of the June 29 interview
with Ellis. One of Ellis' pretrial affidavits, dated May 29
but stipulated by the parties to have been given on June 29,
corroborates Houser. In that affidavit Ellis states that on
the 29. she asked H ser if she were still considered an
employee and "[H]e said that as far as being terminated, I
wasn't terminated, but I wasn't considered an employee
because it had been so long since I had been there."
On July 5 Ellis went to Dr. Beaver's office and obtained
a written statement dated July 5 stating that she had been
. ."released to return to work 3-25-77." She took the
statement to Houser who told her that it didn't help her
much at that time. According to Ellis, on July 14 she saw
Roger Cox in his office and asked him why he had told
Houser she had not asked for her job. Cox told her he
remembered her asking about workmen's compensation
but not about her job.
Counsel for the General Counsel contends, in substance,
that Respondent knew of Ellis' strong support for the
Union in the 1976 campaign and would assume that she
would support the current campaign. Thus, she argues that
in August 1976 when no union activity was present Re-
spondent willingly permitted Ellis to return to work and
even telephoned the doctor to obtain her release. In con-
trast, when Ellis attempted to return to work in April, if it
is found she did make such attempt, Respondent refused to
reinstate her because of the current union activity.
Respondent contends that Ellis did not request to return
to work until June 29, long after her release by the doctor
and long after the 3 days permitted by Respondent's rules
for employees to present themselves for work. Respondent
argues that even if it is found that Ellis requested to return
to work on April 1 or 7, she would still have failed to
comply with its 3-day rule 7 and would have been consid-
ered automatically terminated.
The evidence before me compels a finding that Ms. Ellis
made no effort to obtain recall to her job after her release
by Dr. Beaver on March 25, until late June when she
talked with Houser. An analysis of Ellis' hearing testimony
and/or her pretrial affidavits, convinces me that even if it
were found that she made the efforts to obtain recall as
professed there, such efforts were less than adequate to
warrant a finding of unlawful refusal to recall. Thus, dur-
ing her asserted visit to the plant on March 25, the date of
her release by the doctor, she did not indicate to Respon-
dent that she had been released or that she desired to re-
turn to work. Certainly no duty to recall her arose at that
time. Her first asserted request to return to work on April I
was met by a request by Cox for a doctor's release. Ellis
professed to Cox that the doctor's office had verified that a
report had been sent to the company. Upon being in-
formed that the company had received nothing from the
doctor, Ellis took no action. Again, on April 7, Ellis took
i1 Respondent's employee handbook tates Three consecutive ds if
unexcused absence will result in automatic dismnissal." Ellis testified Ihat she
had not received a copy of the handbook. hut admitted that she kne'w of the
rule and its application to return front sick leave.
no action when Cox advised her he did not have a report
and there was nothing he could do until he got the report.
It was not until 2 weeks later, by Ellis' version, that she
contacted Cox who advised her that he still did not have
anything from the doctor. A week later when Ellis contact-
ed Cox, her response to his inquiry about a doctor's release
was that she had given him all the information the doctor
had given her. Aside from an alleged telephone call to Cox
in mid-May, Ellis made no further efforts until June 29.
One can only ponder why, if Ellis so desperately wanted
and needed to return to work, she waited more than 3
months after release by the doctor to obtain a written state-
ment to that effect and submit it to the company.t 8 The
counsel for the General Counsel appears to suggest that
upon being informed by Ellis that Ellis desired to return to
work 19 Respondent had the affirmative duty to obtain the
written release from the doctor. This contention is appar-
ently grounded on the theory that when Ellis advised Re-
spondent that she had been released in August 1976, and
Cox telephoned the doctor's office and requested a release
for Ellis, Respondent set a precedent to undertake to ob-
tain such work releases for its employees. The inference
urged by the General Counsel, that Respondent's refusal to
obtain the release for Ellis in April was motivated by the
union activity, is not warranted.
The counsel for the General Counsel appears to argue
that when Cox obtained a copy of Dr. Beaver's March 25
clinical notes from Kemper Insurance Company, sometime
after April 7, which notes reflected that Ellis had been re-
leased on March 25. Respondent had a duty to accept the
clinical notes as a release for Ellis. It is further argued that
Cox' telephone call to Kemper Insurance Company con-
cerning information it had on Ellis supports Ellis' conten-
tion that she had requested to return to work. In my view,
Cox' telephone call to Kemper following Ellis' visit on
April 7 comports with Cox' version of the April 7 visit, i.e.,
that Ellis wanted assistance in getting her workmen's com-
pensation benefits reinstated. It should be remembered
that in August 1976, when Ellis, in a forthright and
straightforward manner, reported that she had been re-
leased for light duty work, Cox telephoned, not the
workmen's compensation insurance carrier, but the
doctor's office to assist in obtaining a release. I am per-
suaded that had Ellis indicated to Cox that she had been
released by the doctor in her April 7 visit with Cox, Cox
would have telephoned the doctor, not the insurance car-
rier.
While it may be argued that Respondent was less than
candid with Ellis by not telling her after April 7 and before
June 29 that it knew she had been released to return to
work, such lack of candor does not warrant an inference
that Respondent, in that respect. was motivated by any
union considerations. Particularly where, as here, it is
found that there had been no indication on the part of Ellis
that she had been released to return to work. If Respon-
dent was less than candid with Ellis, it is evident that Ellis
1 According to )r. Bea'rer u rk releases" are roulinely given to patients
upon reqIuest
J It is noted thalt t no tlime did l llis profess to hare told Respondent that
the doctor had "released" her. She merelh alleged that she told ox "what
the dcttir h;id sid." anid that she anted to return to work
MADISON KIPP COM PANY 891
was also less than candid with Respondent. Mere lack of
candor on the part of the employer in these circumstances
does not violate the Act; for the Act does not require can-
dor in all circumstances by an employer. At most, such
lack of candor creates only a suspicion that its conduct was
unlawfully motivated. Mere suspicion cannot substitute for
proof of an unfair labor practice, Kings Terrace Nursing
Home and Health Related Facilitr. 229 NLRB 1180 (1977).
and DLS Mfg. Inc., 202 NLRB 970 (1973).
Accordingly, I find and conclude that the General
Counsel has failed to establish by a preponderance of the
evidence that Respondent failed to recall Mrs. Patsy Ellis
from sick leave because of her union or other protected
concerted activities.
CON(I 'SIONS Of: LAW
I. By coercively interrogating its employees concerning
their union activities; threatening its employees that the
plant would move if the Union were selected as the collec-
tive-bargaining representative of its employees: threatening
its employees that their night shift premium pay increases
were being withheld because of their union activities:
threatening its employee that a promotion and correspond-
ing pay increase was being denied because of his suspected
union activities, and voluntarily counseling its employees
on ways of avoiding service of Board issued subpenas,
thereby inducing them not to participate in Board proceed-
ings to vindicate their Section 7 rights, Respondent has
violated Section 8(a)( 1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Respondent did not violate Section 8(a)(3) and (I) of
the Act by refusing to recall Mrs. Patsy Ellis from sick
leave.
4. Respondent did not engage in any other conduct vio-
lative of Section 8(a)(1) of the Act as alleged in the com-
plaint.
THIE RSIFo
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respon-
dent to cease and desist from those and any like or related
acts and to take certain affirmative action designed to ef-
fectuate the purposes of the Act. Such affirmative action of
Respondent shall be to post at its place of business, as
hereinafter set forth, the usual informational notice to em-
ployees, attached hereto, as an Appendix.
Upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following:
ORDER 20
The Respondent. Madison Kipp Company, Johnson
City. Tennessee, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union activities.
lb) Threatening its employees that the plant would close
and move if the Union were selected as their collective-
bargaining representative.
(c) Threatening its employees that their night shift pre-
mium pay increase was being withheld because of the
union activities.
Id) Threatening its employees that promotions and cor-
responding wage increases were being denied because of
their union activities.
(e) Voluntarily counseling its employees on ways of
avoiding service of a Board issued subpena, thereby induc-
ing them not to participate in Board proceedings to vindi-
cate their Section 7 rights.
(f) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed by Section 7, of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purpose of the Act:
(a) Post at its Johnson City, Tennessee, facility, copies
of the attached notice marked "Appendix." 2i Copies of
said notice, on forms duly provided by the Regional Direc-
tor for Region 10. after being duly signed by Respondent's
representative shall be posted by Respondent immediately
upon receipt thereof, and maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered. defaced, or covered by other
material.
(b) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
1I IS Ft RTHER ORDERH) that the complaint be, and it
hereby is, dismissed, insofar as it alleges unfair labor prac-
tices not found herein.
In the eenit no exceptlons are filed as prosided b Sec 102.46 of the
Rule, ind Regulations of the Nalional abor Reliations Board, the findings,
conclusions, and recommended Order herein shall, as provided n Sec
11)02 48 f the Rules and Regulatons. be adopted b the Board and become
Its findings. conclusions, and Order, and all objections thereto shill he
deemed w:led for all purposes
In the eent thai this Order is enforced h ai Judtientl f a.l itied
States ( ourt of Appeals. the words in the notice reading "Poted h Order
of the a\lional L abor Rela.tions Board" shall read "Posted Pursinlt to a
ludemlcI of he niled Stlales (Court of Appeils inforcine n Order oif the
National abor Relatiins Board.
MADISON KIPP COMPANY
. . .