McCullough Environmental Services

National Labor Relations Board - Board Decisions

Feb 20, 1992

306 N.L.R.B. 345 (N.L.R.B. 1992)

345
306 NLRB No. 71
MCCULLOUGH ENVIRONMENTAL SERVICES
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent asserts that the judge’s resolutions of credibility,
findings of facts, and conclusions of law are the result of bias. After
a careful examination of the entire record, we are satisfied that this
allegation is without merit. There is no basis for finding that bias
and partiality existed merely because the judge resolved important
factual conflicts in favor of the General Counsel’s witnesses. As the
Supreme Court stated in NLRB v. Pittsburgh Steamship Co., 337
U.S. 656, 659 (1949), ‘‘[T]otal rejection of an opposed view cannot
of itself impugn the integrity or competence of a trier of fact.’’ Fur-
ther, it is the Board’s established policy not to overrule a judge’s
resolutions with respect to credibility unless the clear preponderance
of all the relevant evidence convinces us that the resolutions are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We find no basis for reversing the
judges findings.
3 All dates are in 1989.
McCullough Environmental Services, Inc. and
Teamsters Local Union No. 891, affiliated with
the International Brotherhood of Teamsters,
AFL–CIO.1 Cases 15–CA–11046 and 15–CA–
11255
February 20, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 14, 1991, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent and the General Counsel filed exceptions,
supporting briefs, and answering briefs.
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
decided to affirm the judge’s rulings, findings,2 and
conclusions as modified and to adopt the rec-
ommended Order as modified and set forth in full
below.
The judge found that the Respondent, through Su-
pervisor Bunyard, unlawfully threatened to discharge
certain employees because they supported the Union.
We disagree.
In June 1989,3 Field Maintenance Supervisor
Bunyard asked employee Michael Langston if he
would like to work in the field. Bunyard said that ‘‘he
didn’t feel like he and his crew was going to make it.’’
Three or 4 days later, Langston asked Bunyard about
the matter, and Bunyard told him that Maintenance Su-
pervisor Eckels ‘‘wasn’t going to let me [Langston] go
out there because I was a good worker, and there was
a lot of stuff going on out there in the field that they
didn’t want me involved in.’’ After the Respondent
suspended field crew member Richard Harris, who had
been identified by the Respondent as the leading union
adherent, Langston talked to Bunyard again, and
Bunyard told him to hold on a couple more weeks and
he would be out there.
The judge also related conversations between Super-
visor Eckels and employee Wells, and between
Bunyard and field crew member Spann. Eckels asked
Wells whether Harris had talked to him about the
Union the day that Wells worked in the field, and told
Wells that he would go out in the field one day and
‘‘they’d change me [Wells] over.’’ In addition, Spann
testified that Bunyard said that Bunyard ‘‘didn’t know
if I had anything to do with the union or not, but he
was aware that Richard Harris was employed at G.E.,
and they had a big union over there, and he believed
that Richard Harris was probably the man.’’
The judge found that the above evidence showed
that Bunyard suggested to employees from the time he
became supervisor that he would discharge members
of the field crew. The judge noted that both Bunyard
and his superior, Eckels, were making contempora-
neous comments to the employees to the effect that
Richard Harris was suspected of being the ‘‘big union
man’’ and that the other members of the crew, Spann
and Collins, also supported the Union because of the
influence of Harris. Thus, the judge found that the Re-
spondent threatened to fire the field crew because they
supported the Union.
Contrary to the judge, we find that the quoted com-
ments to Langston occurring within days of Bunyard’s
promotion to supervisor were not sufficiently linked to
the field crew’s union activity to constitute an unlawful
threat to discharge the field crew. It is clear from
Bunyard’s statements that the Respondent was dissatis-
fied with certain conduct taking place in the field.
Upon assuming his position on June 6, Bunyard
viewed it as his responsibility to rectify certain of
these poor work practices. In this regard, the record re-
flects that the field crew engaged in a considerable
amount of ‘‘goofing off’’ during the work day, and we
are not persuaded the ‘‘stuff’’ to which Bunyard was
referring was other than ‘‘goofing off.’’ Accordingly,
we shall dismiss this allegation of the complaint.
ORDER
The National Labor Relations Board orders that the
Respondent, McCullough Environmental Services, Inc.,
Jackson, Mississippi, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Reprimanding and discharging employees be-
cause of their union activities, or because they file
charges with the Board and testify at Board pro-
ceedings.
(b) Implementing a rule requiring employees to sign
disciplinary actions or be discharged because of their
union activity.
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(c) Promulgating and enforcing a rule prohibiting
employees from soliciting on behalf of the Union.
(d) Interrogating employees about their union activi-
ties.
(e) Creating the impression that the employees’
union activities are under surveillance.
(f) Threatening employees with reductions of work-
ing hours, more onerous working conditions, and other
unspecified reprisals if they select the Union as their
collective-bargaining representative.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer Richard Harris, L. C. Spann, and Lonnie
Collins immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially 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 decision.
(b) Rescind the unlawful disciplinary actions issued
to Richard Harris, Lonnie Collins, L. C. Spann, Ber-
nard Bennett, and James Varnado and remove from its
files any reference to the unlawful discharges and/or
disciplinary actions and notify the employees in writ-
ing that this has been done and that the discharges or
disciplinary actions will not be used against them in
any way.
(c) Rescind the discriminatory rule change regarding
signing of reprimands.
(d) Rescind the unlawful rule prohibiting solicitation
for the Union.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, and
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its facility in Jackson, Mississippi, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 15, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT reprimand or discharge you because
of your union activities, or because you file charges
with the Board and testify at Board proceedings.
WE WILL NOT implement rules requiring you to sign
disciplinary actions or be discharged because of your
union activities.
WE WILL NOT promulgate or enforce a rule prohib-
iting you from soliciting for the Union.
WE WILL NOT interrogate you about your union ac-
tivities.
WE WILL NOT create the impression that your union
activities are under surveillance.
WE WILL NOT threaten you with reductions of work-
ing hours, more onerous working conditions, or other
unspecified reprisals for selecting the Union as your
collective-bargaining representative.
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 Richard Harris, L. C. Spann, and
Lonnie Collins 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, plus interest.
WE WILL rescind the unlawful disciplinary actions
issued to Richard Harris, Lonnie Collins, L. C. Spann,
Bernard Bennett, and James Varnado, and remove
from our files any reference to the unlawful discharges
347MCCULLOUGH ENVIRONMENTAL SERVICES
and/or disciplinary actions and notify the employees in
writing that this has been done and that the discharges
or disciplinary actions will not be used against them in
any way.
WE WILL rescind the discriminatory rule change re-
garding the signing of reprimands.
WE WILL rescind the unlawful rule prohibiting solic-
itation for the Union.
MCCULLOUGH ENVIRONMENTAL SERV-
ICES, INC.
Denise Frederick, Esq. and Ronald K. Hooks, Esq., for the
General Counsel.
Armin J. Moeller Jr., Esq. and David Thomas, Esq., of Jack-
son, Mississippi, for the Respondent.
Samuel Morris, Esq., of Memphis, Tennessee, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge. This
matter was heard in Jackson, Mississippi, on April 23 and 24
and November 28 and 29, 1990. The complaint in Case 15–
CA–11046 issued on December 28, 1989. It was based on
a charge filed on November 1 and amended on December
28, 1989. The complaint in Case 15–CA–11255 issued on
July 23, 1990. It was based on a charge which was filed on
June 14 and amended on July 12, 1990. On August 1, 1990,
those complaints were consolidated into the instant pro-
ceedings.
The complaints allege that Respondent violated Section
8(a)(1), (3), and (4) of the National Labor Relations Act
(Act).
Respondent admitted the commerce allegations. Respond-
ent admitted that at material times, it is and has been, a
Texas corporation, engaged in the business of operating,
maintaining, and managing water and sewage treatment
plants for various municipalities throughout the United States
including water and sewage treatment facilities located in
Jackson, Mississippi. Respondent admitted that during a rep-
resentative 12-month period, it provided services in excess of
$50,000 to customers located outside the State of Texas and
that it is now, and has been at all material times, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act (Act).
Respondent admitted that the Charging Party (Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
It is alleged that Respondent engaged in several inde-
pendent violations of Section 8(a)(1) of the Act at various
times between July 5 and 20, 1989; that Respondent dis-
charged employees Lonnie Collins on July 11, Richard Har-
ris on July 12, L. C. Spann on July 25, and Brian King on
October 2, 1989; reprimanded Bernard Bennett on July 10,
1989; promulgated and maintained from June 29, 1989, a
rule requiring employees to sign disciplinary notices; and
promulgated on July 11, 1989, a rule requiring employees to
take breaks and lunch periods only at times specified by Re-
spondent, in violation of Section 8(a)(1) and (3) of the Act;
and that Respondent issued written warnings to employee
James Varnado on March 9 and June 1, 1990, in violation
of Section 8(a)(1), (3), and (4) of the Act.
I.
Section 8(a)(1)
1. Supervisor Robert Tim Bunyard
During the hearing the parties stipulated that Tim Bunyard
has been a supervisor of Respondent within the meaning of
Section 2(11) of the Act, from 12 p.m. on June 5, 1989.
a. Interrogation and creating the impression
of surveillance
Tommy Wash, who, at the time, was a laboratory techni-
cian, testified that as he was leaving a meeting while at work
at Respondent’s plant, about a month before the July 11,
1989 election, Tim Bunyard followed him down the hall and
yelled to Wash, ‘‘hey, union man. Hey, union man.’’
Wash testified that Bunyard had been promoted to super-
visor before the above incident.
General Counsel argued that the above remarks by
Bunyard, were calculated to elicit information concerning
Wash’s union sentiments and constituted interrogation and
created the impression of surveillance, citing National Gyp-
sum Co., 293 NLRB 1138 (1989).
L. C. Spann testified that he had several conversations
with Supervisor for the Field Facilities Robert Tim Bunyard
about the Union. Spann testified that in the second of those
conversations, which he recalled, occurred about 3 weeks be-
fore the election in Bunyard’s office:
[Bunyard] told me that he didn’t know if I had anything
to do with the union or not, but he was aware that
Richard Harris was employed at G.E., and they had a
big union over there, and he believed that Richard Har-
ris was probably the man.
Supervisor Tim Bunyard denied that he talked to any em-
ployee about the Union after he became supervisor on June
5, 1989.
I have determined that the testimony of Tommy Wash and
L. C. Spann should be credited. Both Wash and Spann dem-
onstrated good demeanor. Robert Tim Bunyard, on the other
hand, appeared evasive and inconsistent in his testimony. An
example of his inconsistency is as follows:
Q. Were you concerned as to whether the union was
going to get into the plant?
A. Not so.
. . . .
No, sir. I was not over-concerned of the union.
Q. (By Mr. Hooks): You were not concerned that the
union might win?
A. No, sir. I work there to do a job, and I can adapt
as it may be.
Q. So it didn’t matter to you one way or the other.
A. Well, yes, sir; it mattered. It mattered by the fact
that the Company wished—wanted us to do what—you
know, what we—what they wanted us to do. I am a
Company man; I follow Company rules. I abide by the
Company’s wishes and what they want me to do.
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. And what did the Company want you to do?
A. They want me to do my job to the best of my
ability.
Q. But with regard to the union, what did the Com-
pany want you to do?
A. They didn’t want me to do anything. They never
asked me to do one thing or another.
Subsequently, Bunyard testified:
Q. And what was your position as to what you
thought as to the fact that the union might come in?
A. What do you mean what was my position?
Q. Were you for it or against it?
A. I definitely wasn’t for it. I had just left a job,
been laid off from a job in Texas that was union-affili-
ated, but I had heard nothing from the union stating
what their grounds were. I had no basis to base—to
give a knowledgeable explanation of how I felt on it.
There was not basis; I didn’t hear anything about it.
The credited evidence shows that Bunyard interrogated
both Wash and Spann. At that time neither of those employ-
ees was a known union supporter. The comments to Spann
posed an inquiry as to whether Bunyard should believe that
Spann was a union man and thereby invited a response from
Spann. Additionally, Bunyard’s comments to Spann held out
the impression that Bunyard was engaged in surveillance of
the employees’ union activities. Krona 60 Minute Photo, 277
NLRB 867 (1985); Rossmore House, 269 NLRB 1176
(1984); Tom’s Foods, Inc., 287 NLRB 645 (1987).
b. Threatening employees with reduction in hours
As mentioned above, L. C. Spann testified that he had
several conversations with Supervisor for the Field Facilities
Tim Bunyard about the Union. Spann recalled that the third
of those conversations occurred about 2 to 3 weeks before
the election in Bunyard’s office. Richard Harris and Lonnie
Collins were present along with Bunyard and Spann:
Bunyard, he said that the company didn’t want the
union and was going to fight it, and he said that if by
chance we did get the union in that our work hours
could be cut to less than forty hours a week.
Tim Bunyard denied that he threatened employees with re-
duction in work hours if the employees selected the Union.
As shown above, I credit the testimony of Spann and dis-
credit the testimony of Bunyard. I find that the credited evi-
dence proved that Supervisor Bunyard threatened to cut em-
ployees’ work hours to less than 40 hours a week if the em-
ployees selected the Union.
c. Threatening that it would fire other employees
Michael Anthony Langston, a former employee of Re-
spondent, testified that he had a conversation with Tim
Bunyard shortly after Bunyard became supervisor:
[Bunyard] asked me if I would be—you know, how
would I like working out into the fields, and I replied
to him that it sounds great.
. . . .
He said because he didn’t feel like he and his crew
[Lonnie Collins, Richard Harris and L. C. Spann] was
going to make it.
Three or 4 days later, Langston talked again with Bunyard:
After three or four days had gone by, I went to him and
asked him what was going on, and he told me that Bill
[Eckels] and them wasn’t going to let me go out there
because I was a good worker, and there was a lot of
stuff going on out there in the field that they didn’t
want me involved in.
After Respondent suspended Richard Harris, Langston
talked to Bunyard:
I went to him and asked him about—again about going
out into the fields, and he said just hold on a couple
more weeks, said I’d be out there.
In addition to the above testimony of Langston, the testi-
mony of former employee Derrick Wells, appears to show
relevance. According to Wells, he had the following con-
versation with William Eckels at work on July 8, 1989:
[Eckels] told me—he asked me did Richard Harris
talk to me about the union that day I was out there. I
told him I was trying to stay out of it. He told me I’d
go out in the field one day and they’d change me over.
L. C. Spann testified that in the second of several con-
versations with Supervisor Bunyard, which he recalled, oc-
curred about 3 weeks before the election in Bunyard’s office:
[Bunyard] told me that he didn’t know if I had any-
thing to do with the union or not, but he was aware that
Richard Harris was employed at G.E., and they had a
big union over there, and he believed that Richard Har-
ris was probably the man.
The field crew at the time of the above conversations in-
volving Langston, Wells, and others, consisted of Richard
Harris, L. C. Spann, and Lonnie Collins.
As shown below, Bunyard testified that he set out to
straighten out the field crew when he took over as supervisor
on June 5, 1989. However, the above evidence shows that
Bunyard held out to employees from the onset of his super-
visory authority, that he would discharge members of the
field crew. Both Bunyard and his supervisor, William Eckels,
were making contemporaneous comments to the employees
to the effect that Richard Harris was suspected as being the
big union man and, as shown below, that the other members
of the crew, Spann and Collins, also supported the Union be-
cause of the influence of Harris.
I find, in agreement with General Counsel, that the record
supports the allegation that Bunyard threatened to fire other
employees because those employees supported the Union.
2. Maintenance Supervisor William Eckels
Interrogation and threatening more onerous
working conditions
Former employee, utility man Derrick Wells, testified
about a conversation he had with his Supervisor William
349MCCULLOUGH ENVIRONMENTAL SERVICES
Eckels while he was at work for Respondent on July 5,
1989:
[Eckels] approached me and asked me, you know,
what do I think about the union, something to that ef-
fect. And then he said—
. . . .
I said I was trying to stay out of it.
. . . .
Well, he told me—he said—told me that if the union
was elected in that things were going to get a lot tough-
er around there. . . . He said all privileges would be
cut out. And then he said that all the guys that voted
for the union would wash their cars down at the union
hall.
Wells testified that Respondent had a practice of permit-
ting employees to wash their cars at work while on break.
Wells had another conversation with Eckels at work on
July 8:
[Eckels] told me—he asked me did Richard Harris
talk to me about the union that day I was out there. I
told him I was trying to stay out of it. He told me I’d
go out in the field one day and they’d change me over.
William Eckels denied that he has ever interrogated em-
ployees about their union membership. Eckels testified that
some employees, including Mose Bishop, came to him and
volunteered information about the Union.
Eckels testified as follows regarding the question of threat-
ening more onerous working conditions:
I made a statement like saying that things would get
harder, meaning that they would have to go by what
their job description meant and things.
Like we have one man that can hardly read or write,
and he is a mechanic. Now, if a job description is writ-
ten up, he is going to have a tough time following
something like that. That is what I meant by it. There
is no way I could make their job harder. I got to find
work now for them.
. . . .
Well, I don’t think there was ever a car-washing
privilege. I mean, we had the facilities there, and they
were free to use that, just like they borrowed tools
and—you know, for their home use and stuff.
But I—yes. I made a statement. I don’t know if it
was joking; I don’t remember who it was to now. I said
they can go to the union hall and wash their car, be-
cause, you know, it was mentioned about that. And it
is true I had picked up the hoses, but I had picked up
the hoses a dozen times before that.
Eckels went on to testify that one of the reasons why he
picked up the hoses was to prevent another outfit from wash-
ing off their trucks and leaving the mud off their trucks.
Eckels said that employees still wash their cars and that he
has never prevented employees from washing their cars.
I was impressed with the demeanor of William Eckels and
Derrick Wells. I am convinced that both were relating the
truth as recalled by them. In view of that determination I am
unable to discredit the testimony of Eckels in the few in-
stances where there is a clear conflict between his testimony
and the testimony of Wells. With that in mind I am not con-
vinced that Eckels interrogated Wells.
However, I do find that Eckels threatened that working
conditions would become more onerous if the employees se-
lected the Union. That is the message Eckels conveyed to
Wells despite Eckels’ personal feelings about the matter.
In considering an 8(a)(1) allegation, it is important to keep
in mind that that section of the law is concerned with rights
of employees. In that regard motivation of the employer must
take a back seat to the inquiry into what was communicated
to the employees. Here the message to the employees was
a simple one. The employees were being informed that
things would get tougher if they selected the Union.
3. Supervisor Kelvin Peters
July 12, 1989: Laboratory Technician Chester Hicks testi-
fied about a conversation he had with Supervisor Kelvin Pe-
ters while he was at work on July 12, 1989 (the day after
the NLRB-conducted election):
Well, we come out of the lab. He [Peters] told me
to come go with him. We went out of the lab and got
on the golf cart, and we proceeded to go out to the
Parshall flum. Nothing was said on the way out there.
And when we got out there he said, Chester, ‘‘I hate
a liar.’’ I said, ‘‘What do your mean, Kelvin?’’ He say,
‘‘All of this time you’ve been acting as thought you
didn’t know anything about a union around here and I
see that you’re supporting it.’’ And he said, ‘‘As a mat-
ter of fact, an organizer.’’ I said, ‘‘Why do you want
to place me as an organizer?’’ He say, ‘‘Because back
in the conference room yesterday you got up in front
of the T.V.’’ I said, ‘‘Well, I don’t see why you want
to judge me in that manner.’’ And then I told him, I
said, ‘‘Kelvin, you don’t come to work telling us what
you and your wife do at home.’’
And at that point, Kelvin got angry, and his voice
went from a monotone to a higher tone. Then he said,
‘‘Well, I’ll tell you this: If you all think that you all
are going to get this union in here like that, you all
have another thought coming.’’ He said, ‘‘Because
McCullough will look down on you,’’ me, that is, ‘‘and
every other guy that went union.’’ And I said, ‘‘Well,
Kelvin, that’s why all the guys around here feel that we
needed a union in here because McCullough’s not look-
ing too well on us now.’’
. . . .
The only thing he said then was that, ‘‘Well, I’m
through with it, and I hate a liar.’’ I said, ‘‘Well, I hate
a liar, too.’’ And I said, ‘‘I’m through.’’
Laboratory Supervisor Kelvin Peters testified that he
talked with Hicks because he was concerned with Hicks’ jus-
tification for lying to him. According to Peters, Hicks had
told him that he was not involved with the Union. Peters was
concerned with whether Hicks was truthful rather than with
any union involvement.
General Counsel cited Northern Wire Corp., 291 NLRB
727 (1988), in arguing that the above conversation included
a threat of unspecified reprisals by Respondent, because of
its employees’ union activities.
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Again, as shown above, Section 8(a)(1) of the Act does
not depend on a determination that Respondent acted out of
improper motivation. Here, Chester Hicks was strongly criti-
cized by his supervisor because of his role in the union cam-
paign.
Employees are protected in their efforts in favor and in op-
position to unions, even to the extent of misrepresenting their
roles in that regard.
I find that Kelvin Peters threatened Chester Hicks with re-
prisal because of Hicks’ union activities in violation of Sec-
tion 8(a)(1).
4. Supervisor David Canizaro
July 19, 1989: Respondent, in its answer to the complaint
in Case 15–CA–11046, admitted the supervisory allegations
regarding David Canizaro. Although Respondent denied the
supervisory allegations regarding David Canizaro in its 15–
CA–11255 answer, it stipulated that both Canizaro and An-
drew Hawthorne were supervisors during the March to July
1990 period.
Tommy Wash testified that shortly after the July 11, 1989
election he made a comment referring to OSHA and was
called into the office of Field Supervisor David Canizaro.
Canizaro told Wash that he was in trouble. Canizaro went on
to tell Wash,
I told you that since this union stuff that there was
going to be some changes. . . . I told you to leave that
union stuff alone.
Wash testified that on the Monday before the election,
I came down to get my check, and [Canizaro] rode
the elevator down with me, followed me to the door-
way where I was exiting to my vehicle, and he made
the statement while we were going down the hall that,
‘‘I heard that y’all had a big meeting yesterday.’’ I
said, ‘‘I don’t understand what you’re talking about.
Wherever you got your information from, you need to
talk to those people.’’ And I kept walking, and as I
kept walking towards my vehicle out the door, he was
standing at the door with the door open. He said,
‘‘Y’all need to leave that union stuff alone.’’
General Counsel argued that the above conversations in-
cluded a threat of unspecified reprisals because of the em-
ployees’ union activities.
I credit the testimony of Wash which was uncontested.
Canizaro was holding out to Wash that bad things would
happen to those employees that did not leave the Union
alone. That conduct constitutes violation of Section 8(a)(1).
5. Project Manager Robert Maines
As shown below under the topic ‘‘Bernard Bennett,’’ on
July 10, 1989, Project Manager Robert Maines issued the fol-
lowing written warning to Lead Operator Bernard Bennett:
The following was reported to me on this date, at
7:15 A.M.:
At 7:05 A.M., you approached Utilityman, Ken Thomas
and solicited his support for the Teamsters Union. This
occurred during normal working hours for both yourself
and Mr. Thomas. You were not only negligent toward
your own duties, but you also obstructed Mr. Thomas
in the performance of his duties. As the person in
charge of your shift, you are looked upon and expected
to set an example for other employees in the perform-
ance of your work. You have been negligent toward
your work responsibilities by taking the time to wait
around for an opportunity to solicit this individual;
whereas, you were supposed to be monitoring the facil-
ity and performance of those workers under your direct
supervision. This will not be tolerated in the future.
You are instructed to cease conversation with personnel
other than in the performance of your job. As well, you
should be informed, soliciting is not allowed on the
premises of the work project.
This is a written reprimand, which will placed in your
personnel file.
Bernard Bennett testified that Respondent did not have a
no-solicitation rule or a no-talking rule, in effect before July
10. Bennett testified that he had engaged in solicitation be-
fore that date and he had observed supervisors engage in so-
licitation. According to Bennett, it was commonplace for em-
ployees to talk to each other while working. Bennett testified
that he oftentimes talked with others including Supervisors
Jackie Kiser and Andrew Hawthorne, during work about
nonwork related subjects.
Laboratory Technician Chester Hicks testified that employ-
ees were never prohibited from soliciting on the job and, as
late as during the fall 1989, he sold cookies, church tickets,
and tickets for his little girl’s school at the plant, during
worktime. Hicks testified that he solicited the above things
to employees including Supervisors Kelvin Peters and David
Canizaro. Hicks testified that other employees also solicited
on the job.
Tommy Wash testified that he was unaware of any rule
prohibiting solicitation in the Jackson facility and that he
sold ‘‘raffle tickets, baseball tickets, certain functions, bar-
becues, things like that.’’
James Varnado testified that Respondent did not have a
rule which prohibited solicitation and that he sold raffle tick-
ets to other employees while at work, during the spring of
1989. Varnado testified that other employees’ solicitations in-
cluding sale of fish plates and girl scout cookies.
Maintenance Mechanic Mose Bishop testified that he is
unaware of any rules prohibiting solicitation. Bishop testified
that employees including Supervisor William Eckels, engage
in solicitation which included selling candy, cookies, and raf-
fle tickets on the job.
Maintenance Electrician Willie Wilson testified that em-
ployees have been permitted to solicit during nonbreak
worktime. Wilson said that he has purchased tickets at work
from employees including James Varnado and Tommy Wash
and candy from Supervisor William Eckels. On cross-exam-
ination, it was brought out that Wilson indicated in his pre-
hearing affidavit that all the incidents of solicitation in the
plant occurred in 1986 and 1987.
Former employee Michael Anthony Langston testified that
Respondent did not have a rule against soliciting and that
Ken Thomas sold boots to him while at work around March
or April 1989. Langston testified that Thomas also sold raffle
tickets and that Thomas solicited the sale of a number of
351MCCULLOUGH ENVIRONMENTAL SERVICES
things to employees including Supervisor William Eckels.
Thomas engaged in solicitation during nonbreak times.
Respondent argued in its brief that this allegations is based
on an inaccurate statement contained in the reprimand letter
to Bennett and that that reprimand was a private matter
which was never promulgated to employees.
Apparently Respondent is referring to the following state-
ment in Bennett’s reprimand in its contention that the state-
ment was inaccurate:
You are instructed to cease conversation with per-
sonnel other than in the performance of your job. As
well, you should be informed, soliciting is not allowed
on the premises of the work project.
Perhaps, as Respondent argues, the above statements were
inaccurate. However, there was no showing that Respondent
ever repudiated the statements or that it ever advised any em-
ployee including Bennett, that the statements were inac-
curate.
As to Respondent’s contention that the reprimand was pri-
vate, the record shows that the reprimand was communicated
to at least one employee. Bernard Bennett was advised that
employees were in effect prohibited from talking or soliciting
for the Union. As shown below, I find that Bennett was an
employee and not a supervisor during 1989.
The law does not require that illegal activities must in-
volve more than one employee and, of course, there is no
guarantee that a communication like the one involved here,
was not conveyed to more employees.
I find that the above evidence proved a violation of the
Act by Respondent’s actions in enforcing an illegal no-solici-
tation and no-talking policy against its employees’ union ac-
tivities. 299 Lincoln Street, Inc., 292 NLRB 172 (1988), and
Cannon Industries, 291 NLRB 632 (1988); Middletown Hos-
pital Assn., 282 NLRB 541 (1986); Southwire Co. v. NLRB,
820 F.2d 453 (D.C. Cir. 1987); cf. Asociacion Hospital Del
Maestro, 283 NLRB 419 (1987); Machinists District Lodge
91 v. NLRB, 814 F.2d 876 (2d Cir. 1987), for discussion of
the issue in cases where no violation was found.
II.
A. Section 8(a)(1) and (3)
The complaint alleged that Respondent changed two rules
at the height of its employees’ union campaign in violation
of Section 8(a)(1) and (3) of the Act.
The union organizing campaign occurred during the spring
and summer of 1989. On April 28, 1989, the Union filed its
petition in Case 15–RC–7452. A representation hearing was
held on May 17, 1989. An election was held on July 11,
1989. The Union received a majority of the votes in that
election.
B. The Rule Requiring Employees to Sign
Disciplinary Notices
It is alleged that Respondent violated sections of the Act
by its promulgation of a new rule requiring employees to
sign written reprimands.
There was an evidentiary dispute regarding whether on or
about June 29, 1989, Respondent changed its policy on hav-
ing employees sign written reprimands. As shown below, I
find that Respondent did change its established policy from
one of telling its employees to sign written reprimands, to
one of discharging employees if they refused to sign written
reprimands.
Robert Maines testified that Respondent has had a policy
since 1979 of requiring employees to sign written rep-
rimands. Maines acknowledged that, in a couple of instances,
employees have refused to sign reprimands. However, ac-
cording to Maines, those instances have involved absentee-
ism.
Although Maines acknowledged that Respondent’s presi-
dent wrote to all Respondent’s facilities on June 28, 1989,
and that he wrote his supervisors on July 5, 1989, he testified
that those letters did not involve a change in the policy of
requiring employees to sign reprimands. The letters were, ac-
cording to Maines, remainders of the established policy.
However, Maines admitted that the June 28, 1989 letter
from President Jerry Mitchell and Maines’ July 5, 1989
memo, were the only two documents which reflect Respond-
ent’s policy on signing written reprimands.
Respondent’s president, Jerry C. Mitchell, wrote its facili-
ties, including Jackson, Mississippi, on June 28, 1989:
It has come to my attention that some employees
have recently refused to sign the written statements
concerning reprimands and/or disciplinary actions. It is
a requirement that the employee sign these statements
‘‘acknowledging’’ he read the statement. Note, that as
always, the employee may write any qualifications he
so desires but he must acknowledge by signature that
he read the statement. Any employee refusing to sign
the statement thereby acknowledging he read the state-
ment is to be discharged for insubordination.
The evidence which is discussed below, shows that Rich-
ard Harris was an employee that had recently refused to sign
a written reprimand. Harris was presented with a reprimand
which he initially refused to sign on June 27. June 27 was
the day before Respondent’s president wrote the above letter.
There was no evidence that any employee other than Rich-
ard Harris refused to sign a written reprimand at a time prox-
imate to the June 28 letter from President Jerry Mitchell.
On July 5, 1989, Robert Maines wrote his supervisors at
Jackson, Mississippi:
It has come to my attention recently, that some em-
ployees have refused to sign written statements con-
cerning reprimands and/or disciplinary actions. It is a
requirement that the employee sign the statement ‘‘ac-
knowledging’’ he read the statement. Note, that as al-
ways, the employee may write any qualifications he so
desires, but he must acknowledge by signature that he
read the statement.
The employee must be told and made to understand
that failure to sign the statement is a dischargeable of-
fense, insubordination. Any employee refusing to sign
the statement, thereby acknowledging he read the state-
ment is to be discharged for insubordination.
Supervisor of Field Facilities Bunyard testified that Re-
spondent’s policy regarding employees signing written rep-
rimands has remained unchanged throughout the 3 plus years
he has worked for Respondent. However, on cross-examina-
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion, Bunyard revealed that the source of his knowledge was
an occasion in which he was awarded a written reprimand,
some 8 months before he became supervisor. Bunyard of-
fered no evidence that Respondent’s policy was published to
employees before the memos cited above.
Respondent called a former employee, Jeffrey Scott Har-
rison:
Q. While you were employed at McCullough, what
was McCullough’s policy concerning the signing of let-
ters of reprimand?
A. I don’t—they couldn’t fire you for not doing it,
but I think it looked bad on your record.
William Eckels testified that Respondent has had a policy
of requiring employees to sign written reprimands, during the
entire 10-1/2 years he has worked for Respondent.
Maintenance Mechanic Mose Bishop testified that he has
refused to sign a written reprimand. According to Bishop he
refused to sign a reprimand for tardiness approximately 3
years ago. His Supervisor William Eckels signed the rep-
rimand after Bishop wrote on the reprimand that he refused
to sign. Bishop testified that he did sign a reprimand he re-
ceived about a year ago. On that occasion Bishop was told
that he needed to sign but he was not told that anything
would happen if he did not sign the reprimand. Bishop also
signed a reprimand he received for not wearing gloves about
2 months before the hearing.
On cross-examination Mose Bishop was shown several
reprimands on the assertion of counsel that those were all the
reprimands found in Bishop’s file, and Bishop admitted that
he had signed all the reprimands shown. Bishop persisted in
testifying that he had refused to sign one reprimand and that
he had written on the reprimand that he refused to sign.
Former employee Michael Anthony Langston testified that
he was present on one occasion when Mose Bishop refused
to sign a warning.
Michael Anthony Langston testified that he learned of a
rule that employees could be terminated for insubordination,
if they refused to sign a written warning. According to
Langston, he was informed of that rule after Respondent dis-
charged the ‘‘field crew,’’ after they refused to sign.
Langston testified there was no rule requiring employees to
sign warnings before the field crew was discharged. As dis-
cussed below, the ‘‘field crew’’ was discharged in July 1989.
Former field maintenance supervisor, Earl Medlock, testi-
fied that he issued a written warning to Richard Harris, for
failing to check a pumping station. Medlock testified that
Harris refused to sign that reprimand. Medlock testified that
he said to Harris:
‘‘You need to sign this [warning]. And if you don’t
want to sign it, we need to go and talk to Bill [Eckels]
about it.’’ [Richard Harris] said, ‘‘Well, I want to talk
to Bill.’’ And Bill more or less told him the same thing
he told me about it, ‘‘Regardless of what you were
doing, you should have went by there and checked it
sometime within that three-week period.’’
And he told me to get Richard to sign the statement.
Richard said he wouldn’t sign it, and I told Bill that he
wouldn’t—went back and told Bill [Eckels] that [Har-
ris] wouldn’t sign it. He said, ‘‘Well, write on the rep-
rimand that Richard Harris did not sign reprimand,’’
and then for me to put my signature on it. And that’s
what happened.
That particular warning, which was dated April 27, 1989,
was received in evidence as General Counsel’s Exhibit 13.
Medlock testified regarding Respondent’s policy of dealing
with employees who refused to sign written warnings:
As far as I can remember, there was really no proce-
dure other than this particular incident (the above-men-
tioned G.C. Exh. 13), for me, that Bill [Eckels] said it
would go in [Harris’] record anyway, regardless of
whether he signed it or not.
Harris was not disciplined because he refused to sign the
April 27, 1989 warning.
Maintenance Electrician Willie Wilson testified that he did
sign three reprimands he was awarded at times before the
July 1989 election. However, according to Wilson, he was
not told that anything would happen if he did not sign the
reprimands. After the election, between September and No-
vember 1989, Wilson received a warning for tardiness. Wil-
son signed the reprimand even though, according to his testi-
mony, he was told that he did not have to sign that rep-
rimand.
Wilson admitted on cross-examination that it has always
been his understanding that employees are supposed to sign
reprimands.
Another of General Counsel’s witnesses, Derrick Wells,
who started working for Respondent on June 12, 1989, testi-
fied that employees were required to sign reprimands. Wells
understood that Respondent considered it to be insubordina-
tion for an employee to refuse to sign a reprimand. Wells
testified that he learned of the rule requiring employees to
sign reprimands, during the time when Respondent was ‘‘try-
ing to get rid of the field maintenance people.’’ Wells re-
called that was the time when L. C. Spann and others were
suspended. As shown below, the field crew employees were
suspended and discharged in July 1989.
Lead operator Tommy Wash testified on cross-examination
that on the day before the election, which was July 10, 1989,
he was told by Richard Harris and L. C. Spann, that if he
received a written warning, he should go ahead and sign the
written warning or he would be fired.
L. C. Spann testified that he received four warnings while
he worked for Respondent. According to Spann, he refused
to sign the first of those warnings which he received from
Maintenance Supervisor William Eckels on June 6, 1989.
Spann testified that the warning was because of damage to
a lawn mower. Spann was told by Eckels that the warning
was going into his file regardless of the fact that Spann re-
fused to sign the warning.
On June 29, according to Spann, he was called in by Tim
Bunyard and again presented with the June 6 warning:
Hey, I told him, hey, I wasn’t going to sign it. And
he said, ‘‘Think about it.’’ And I said—he says, ‘‘Well,
look here, you can go ahead and put your comments on
it, but you must sign this letter or else you’re going to
be terminated.’’
353MCCULLOUGH ENVIRONMENTAL SERVICES
At that point Spann signed and dated the memo (6–29–89)
and wrote the following comments:
I disagree with this letter of reprimand, no warning 6–
6–89 damage to company lawn mower. I have recorded
dates that grass was tall & needed to be cut at Forest
Ave. on many occasion. A residential type mower was
purchase instead of a commercial type mower. I refuse
to sign letter on 6–6–89.
Again on 6–29–89 I was told that I’ll be terminated if
I didn’t sign this letter.
Without a chance to repair mower without a chance to
pay for damages to mower I still disagree.
An examination of the entire record has convinced me that
Respondent has continuously, from a time well before its
employees’ 1989 union organizing campaign, maintained a
policy of requiring its employees to sign written reprimands.
However, the record also shows that Respondent did not
maintain a policy of discharging employees that refused to
sign written reprimands until after June 27, 1989.
On June 27 the employees’ union organizing campaign
was well underway. On July 11, 1989, there was an NLRB-
conducted election.
On June 27, 1989, alleged discriminatee Richard Harris
was given a written warning by Tim Bunyard, allegedly be-
cause Harris failed to secure a lift station door. On that occa-
sion, when Harris initially refused to sign the warning,
Bunyard told him that he would be discharged if he refused
to sign the warning. Again, at a meeting with Project Man-
ager Maines, Harris was told that he would be terminated if
he refused to sign the warning. On June 28 Harris signed the
warning and added the following writing:
I don’t agree with this letter because its due to union
activity going on, where as a first time offense, war-
ranted a reprimand and everyone picking on people
who they think might support union, where my super-
visor accused me of union activity recently.
On June 28, Respondent’s president wrote all Respond-
ent’s locations, and advised that employees should be dis-
charged if they refuse to sign written reprimands.
On June 29, L. C. Spann, another alleged discriminatee,
was called in by Supervisor Tim Bunyard and told that he
would be discharged if he continued to refuse to sign a June
6, 1989 reprimand.
The record shows that before the above incidents, Re-
spondent had neither published nor enforced a policy of dis-
charging employees for refusal to sign written reprimands.
The evidence shows that before June 27, 1989, Respondent
had never discharged an employee because the employee re-
fused to sign a written reprimand. On several occasions be-
fore June 27, as shown above, employees had refused to sign
written reprimands. None of those employees was dis-
charged.
Before Respondent threatened Richard Harris with dis-
charge on June 27, it, as shown below, had on several occa-
sions, expressed suspicion that Richard Harris was a big
union supporter.
Section 8(a)(3) of the Act, makes it unlawful for an em-
ployer to discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage
or discourage membership in any labor organization. The
record evidence shows that Respondent was motivated to
change its policy to one of discharging employees for refus-
ing to sign a written reprimand, at least in part, because sus-
pected union pusher Richard Harris refused to sign a written
reprimand.
There was no showing that Respondent had any reason
other than an unlawful one, to change its policy to one of
discharging employees if they refused to sign reprimands.
Unlike the situation described below involving Respond-
ent’s change in its lunch policy, there was no showing that
Respondent had a legitimate business justification to change
its policy regarding signing reprimands. The evidence illus-
trated there were few occasions on which employees refused
to sign reprimands. On those few occasions, Respondent sim-
ply informed the employee that the reprimand would be en-
tered into his personnel file with the notation that the em-
ployee refused to sign the reprimand. Respondent offered
nothing to show why it was necessary to change that policy.
I find that General Counsel proved prima facie, that Re-
spondent was motivated to change its policy regarding sign-
ing written reprimands, because of its suspicion that Richard
Harris was a strong union supporter. Respondent failed to
show that it would have changed its policy in the absence
of union activities. Respondent’s change of the reprimand
policy constitutes discrimination in regard to any term or
condition of employment to discourage union membership
and constitutes a violation of Section 8(a)(3). (Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983); Delta Gas, Inc.,
283 NLRB 391 (1987), enfd. 127 LRRM 3085 (5th Cir.
1988); Southwire Co. v. NLRB, 820 F.2d 453 (D.C. Cir.
1987).)
C. The Lunch and Breaktime Rule
The complaint alleges that Respondent violated Section
8(a)(1) and (3), by promulgating and maintaining a rule re-
quiring employees to take breaks and lunch at specific times.
The evidence regarding this allegation involved a question
of whether employees were prohibited from eating lunch at
a restaurant called Miss B’s and whether employees could
take lunch at times other than from 11 am to noon.
General Counsel offered evidence on the question of
whether Respondent had a specific policy regarding employ-
ees going to a restaurant called Miss B’s. Maintenance Su-
pervisor Eckels testified that the policy regarding employees
going to Miss B’s for lunch was as follows:
they could leave their work area at 11:00 o’clock,
drive into the plant—you know, if they were close
enough, they thought they could do it—park our truck,
take their car and go wherever they wanted to go. But
then they had to be back to pick the truck up and be
back in their work area by 12:00 o’clock.
Supervisor of Field Facilities Tim Bunyard testified about
his understanding of the policy regarding lunch at Miss B’s:
[Earl Medlock] told us that there had been a problem
arose from going to Miss Bee’s to eat lunch because of
the fact—the time that was involved traveling from
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
some of the stations up north and some of the stations
in the south, the time it took to get to Miss Bee’s, pick
up lunch and then get back to your assigned stations.
. . . .
He forbid us to go to Miss Bee’s while we were
working, other than working at West Rankin pumping
facility, which is located 2-1/2, three miles from Miss
Bee’s.
. . . .
Q. was there a policy by which the employees, if
they really wanted to go to Miss Bee’s and had enough
time, could bring the truck back to the plant and use
their own vehicle?
. . . .
A. When you wanted to eat lunch at Miss Bee’s or
any other place other than was designated by Earl or
as by—instructed by Bill [Eckels] and Earl, then you
had to bring your truck in, leave it at the plant, get in
your own personal vehicle and go take lunch and be
back by 12:00.
Q. Now, in fact did this practice of employees doing
this last very long?
A. No. It did not. . . . I think it was because of eco-
nomic reasons; they didn’t want to use their gas going
to pick up lunch.
However, Bunyard admitted that he and others in the field
crew, ate at Miss B’s on numerous occasions while he was
a member of the field crew. In November 1988, Bunyard
transferred out of the field crew. He admitted that from that
time until he became supervisor on June 5, 1989, he was not
aware of how Respondent dealt with employees eating lunch
at Miss B’s.
As shown above, the employee witnesses testified that
Miss B’s was not off limits even though, as shown below,
employees were told not to drive there from distant points
on their routes. Richard Harris testified that he ate at Miss
B’s three or four times a week.
It is clear from the above that at best, there was confusion
regarding the policy of having lunch at Miss B’s. The two
supervisors with direct supervision over Harris, Collins, and
Spann, gave different versions of that policy. William Eckels
understood the policy to be one which Bunyard recalled was
abandoned before he transferred out of the field crew in No-
vember 1988. Bunyard, on the other hand, admitted that he
was unaware of the actual practice from November 1988,
when he transferred out of the field crew, until June 5, 1989,
when he became supervisor. Despite his admitted lack of
knowledge, Bunyard did testify that among other things,
Miss B’s was off limits to the field crew on July 11, 1989.
However, Bunyard’s testimony was compromised by
uncontested evidence, that, on July 20, 1989, while working
at the West Rankin station, Bunyard told L. C. Spann that
Spann could eat at Miss B’s.
What is clear is that employees were admonished not to
drive to Miss B’s for lunch, from distant field stations. Al-
though employees were never given rigid guidelines, they
were cautioned to exercise common sense in leaving their
work route to drive to Miss B’s. The record shows that Re-
spondent was aware that employees patronized Miss B’s be-
cause of that restaurant’s practice of permitting customers to
charge their meals.
There was evidence that before the election on July 11,
1989, Respondent permitted employees to take their break or
lunch at times other than the established times. For example,
Michael Anthony Langston, who was a utility man until Sep-
tember 1989, testified:
we’ve always taken—you know, like, we used to go
out into the field and work, and we could work through
our morning breaks and lunch breaks and the evening
break and get off early, so it was just—as long as you
would let the supervisor know, it was all right, ahead
of time.
However, according to Langston, about 2 weeks after the
election, he and Mose Bishop, were told by William Eckels
that they were to take their breaks at the appointed times or
not at all. Langston testified that Eckels told them that the
Union does not allow it.
Richard Harris testified:
we often proceeded to 11:00 doing maintenance
work to where we even took lunches as late as 1 or
2:00 because we had breakdowns in the field. And
that’s what we was up against in the field. It wasn’t no
at 11:00 stop what you’re doing and take a break; at
9:00 stop what you’re doing and take a break; you
couldn’t do that.
Earl Medlock, the former supervisor for the field facilities,
testified:
if we were going to be involved in something that
was going to take more than an hour to do we would
either start our lunch early or start our lunch late. My
crew was given instructions by me to let me know in
case they needed to start breaks early or start lunch
early or start lunch late if it was going to take more
than an hour to do a particular job.
. . . .
And Bill [Eckels] told me, he said, ‘‘Well, you better
make sure you know when they do this.’’ I had the
guys tell me, call me on the radio and try to get in
touch with me or Bill whenever they wanted to take an
extended lunch, at least to take a lunch break that was
over the amount of time, past the original scheduled
time or before the original scheduled time. The same
with breaks.
Whenever they could get in touch with me or Bill
they would, but sometimes they couldn’t get in touch
with either of us, and they just went ahead and did
what they saw fit and then logged it down as to what
they did as far as their schedules went.
[Robert Bunyard] went to lunch with the other fel-
lows. There was an eatery, a lady that served plate
lunches not far from one of the pumping stations in the
center of town.
That was Miss B’s.
. . . .
I would say on the average [the crew that sometime
included Robert Bunyard before he became supervisor]
ate [at Miss B’s] at least three times a week.
[The crew was] told to stay there at their jobs and
either eat somewhere in the area, because a lot of times
355MCCULLOUGH ENVIRONMENTAL SERVICES
we were working maybe fifteen miles from the place
where they usually eat at lunch time, and it was—a lot
of times it was set up from them to start—for all of
them to meet up there at the west Rankin pumping fa-
cility to work there at that particular pumping station
because there at that station it was a pretty dangerous
atmosphere and all of them had to—three people usu-
ally be there together to work there due to the gases in-
volved, the moving machinery . . . and usually they’ll
meet there before and start cleaning, stop, go to Miss
B’s and come back and eat.
. . . .
As far as policy goes, there wasn’t a mileage limit.
Bill Eckels had stated that if those guys are working
out north or working so far out south that they were
so—if they were just so far away from Miss B’s, no
mileage given, if they’re working way out there they
shouldn’t have to come in here. It’s just not good for
them to come way back to town just to get something
to eat and go back out there; they’re wasting time and
money and gas.
. . . .
The parks, Battlefield Park (was the only area that
was off limits).
L. C. Spann testified about Respondent’s lunch policy:
If I ran into a pumping station that had lost prime
or that had been tripped and the wet well was high and
it was near lunch time, I wouldn’t take a lunch break,
I mean, maybe till 1:00. I mean, it wouldn’t be no big
issue about it, and I never had to explain to anyone. I
might mention to Eckels or to Bunyard or Medlock in
the past that, hey, look, when I got to Brookhollow, for
instance, that’s a station that goes out a lot, both pumps
were hot, and I had to prime them, and I didn’t get to
lunch until maybe about 2:00. You know, I never had
any problems.
And I have also taken lunch early, as much as thirty
minutes early, as much as an hour early. I never had
any problem. And Eckels and I had talked a couple of
times about that. He said, ‘‘Yeah, I kind of know it’s
hard to take breaks on time because of so much trav-
eling time involved.’’
Spann testified that he had eaten lunch at Miss B’s around
3 times a week for the last 1-1/2 to 2 years that he worked
for Respondent. He testified that Mose Bishop, Tim Bunyard,
Medlock, Richard Harris, Willie Jackson, Willie Wilson, and
Lonnie Collins used to eat at Miss B’s and that Bishop
would pick up a plate for William Eckels.
On one occasion, according to Spann, Eckels and Medlock
told him not to come off his north route and go to Miss B’s
for lunch. Spann testified that his north route took him as far
away as 15 miles. However, Spann testified that Respondent
never did decide on a firm plan regarding how far employees
could go for lunch until after he was suspended on July 25,
1989. When Spann returned on July 28, he was asked to ini-
tial the following memo to all lift station employees, from
Robert Bunyard:
There seems to be some confusion of where we can
or can not take our lunch break. Lunch Break is to be
taken with in your scheduled route. It seems to me
common sense would be enough direction but it ap-
pears thats not the case. I might suggest that lunch be
brought from home to avoid any conflict on this matter
in the future. If not then a standard of 2 miles each way
will be acceptable from the station in which you are
working. If any questions contact me to clear up this
matter.
William Eckels testified that the lunch and break policy
did not change during the 1989 union campaign and that the
same policy existed from a time before he issued a memo
on December 1, 1988, concerning the lunch and break pol-
icy. That memo included the following:
B. Personnel are to remain in their designated work
areas unless their presence is requested elsewhere by ei-
ther the maintenance supervisor or during an emer-
gency.
C. The designated times will be adhered to. Lunch
hour and breaks will be taken and will not be worked
through without prior authorization or if an emergency
exists.
Supervisor of Field Facilities Tim Bunyard testified that
field crew employees could take a later lunch break if it was
necessary to work through 11. However, according to
Bunyard, it was necessary for the employee to radio his su-
pervisor before changing his lunchtime.
Bunyard testified that the field crew did not abide by com-
pany policies before he became supervisor. Bunyard was
asked how Richard Harris and L. C. Spann violated com-
pany policy:
Well, they would—there was numerous times that
we would extend our lunch breaks; I say, We: I was
part of it, too, for a while. And we would play basket-
ball. They would pitch quarters, shoot dice, things of
that nature.
According to Bunyard, he set out to correct the abuse of
company policies by the field crew when he became super-
visor on June 5, 1989.
The record, including admissions by Supervisor Bunyard,
shows that the field crew employees regularly abused the
break and lunchtimes before Bunyard became supervisor.
Bunyard admittedly took steps to stop those abuses when he
became supervisor on June 5.
As noted in other portions of this decision, the evidence
illustrated that Supervisor Tim Bunyard was motivated to
take action regarding his field crew because of their known
and suspected union activities. On July 11 Bunyard expanded
Respondent’s policy regarding lunchbreaks including specifi-
cally lunch break at Miss B’s, due, in part, to animus against
the suspected union activities of its field crew employees.
However, unlike the situation involving the rule requiring
employees to sign written reprimands, there is evidence
showing that Respondent would have acted to change its
lunch practices regardless of its employees union activities.
Here, the evidence illustrates that Respondent had cause to
be concerned about abuse of lunch and break periods. The
employees routinely took lunch and breaks before or after
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
specified times and the employees frequently took more than
the allotted time for lunch.
General Counsel argued that the evidence shows that Re-
spondent took action to crack down of break and lunch pe-
riod violations because of its employees’ union activities.
General Counsel is correct. However, the record illustrated
more grounds for the change in lunchbreak policies than its
employees’ union activities.
Tim Bunyard became supervisor of the field crew on June
5, 1989. Although Bunyard’s subsequent actions clearly dem-
onstrated his union animus, those actions also demonstrated
a desire to shape up operations because of poor work prac-
tices. The evidence is uncontested that the field crew was
abusing their lunch periods by frequently driving long dis-
tances to lunch, by frequently overstaying their lunch period
and by taking lunch at other than specified times without ad-
vising their supervisor.
Although I am convinced that the evidence shows that em-
ployees were permitted to take early or late lunch, if, in the
employees opinion, their work justified changing the time for
lunch, the evidence also shows, that Respondent had a long-
standing policy of requiring employees to advise their super-
visor before taking either early or late, lunch.
I find that the evidence did prove that Respondent changed
its lunchbreak policy on or before July 11, 1989. There were
several motivating factors behind Respondent’s change in its
lunch policy including its employees’ union activities. How-
ever, as shown above, I am convinced that Respondent
would have changed its lunch policy in the absence of its
employees’ union activities. I find that Respondent did not
violate Section 8(a)(3) of the Act regarding the lunchbreak
policy. (Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983);
Delta Gas, Inc., 283 NLRB 391 (1987), enfd. 127 LRRM
3085 (5th Cir. 1988); Southwire Co. v. NLRB, 820 F.2d 453
(D.C. Cir. 1987).)
D. Bernard Bennett
The complaint alleged that Respondent illegally rep-
rimanded Bernard Bennett on July 10, 1989.
On July 10, 1989, Project Manager Robert Maines issued
the following written warning to Lead Operator Bernard
Bennett:
The following was reported to me on this date, at
7:15 A.M.:
At 7:05 A.M., you approached Utilityman, Ken Thomas
and solicited his support for the Teamsters Union. This
occurred during normal working hours for both yourself
and Mr. Thomas. You were not only negligent toward
your own duties, but you also obstructed Mr. Thomas
in the performance of his duties. As the person in
charge of your shift, you are looked upon and expected
to set an example for other employees in the perform-
ance of your work. You have been negligent toward
your work responsibilities by taking the time to wait
around for an opportunity to solicit this individual;
whereas, you were supposed to be monitoring the facil-
ity and performance of those workers under your direct
supervision. This will not be tolerated in the future.
You are instructed to cease conversation with personnel
other than in the performance of your job. As well, you
should be informed, soliciting is not allowed on the
premises of the work project.
This is a written reprimand, which will placed in your
personnel file.
Bennett testified that on the occasion questioned in the
above warning, he called over Ken Thomas and asked Thom-
as if he was ready. Thomas responded yes. Bennett admitted
that he was referring to the Union when he asked Thomas
if he was ready. Bennett testified that his conversation with
Thomas occurred during working time. Bennett said that he
had talked with Thomas, about the Union, a few days before
July 10.
Project Manager Robert Maines testified:
[Bennett] approached an employee who was on his
work schedule—in other words, he was on the clock at
the time—and started trying to sell the union upon him.
The employee told him he didn’t want to hear about
it and then reported it to his supervisor after about five
minutes of his time had been taken up, which if the su-
pervisor had caught him, he would have caught it. And
then the supervisor reported it to me.
According to Maines, the employee that complained about
Bennett’s solicitation, Kenneth Thomas, left Respondent’s
employ several months ago. Respondent is unaware of
Thomas’ whereabouts. On motion by Respondent, I received
Kenneth Thomas’ affidavit in evidence. However, there was
nothing in that affidavit regarding Thomas’ conversation with
Bernard Bennett.
Bennett went on to say Respondent did not have a no-so-
licitation rule or a no-talking rule, in effect before July 10.
Bennett testified that he had engaged in solicitation before
that date and he had observed supervisors engage in solicita-
tion. According to Bennett, it was commonplace for employ-
ees to talk to each other while working. Bennett testified that
he oftentimes talked with others including Supervisors Jackie
Kiser and Andrew Hawthorne, during work about nonwork
related subjects.
The reprimand issued to Bernard Bennett, because of his
union activity in talking to a fellow employee about the
Union, was, according to General Counsel’s argument, viola-
tive of Section 8(a)(1) and (3).
Respondent argued that at the time of the above rep-
rimand, it considered Bennett to be a supervisor. The record
showed that Bennett was a lead operator. Bennett could di-
rect the work of one other employee, William Tillman. At
the time of the incident involved in his reprimand, Bennett
was the highest ranking employee at Respondent’s facility
during the midnight to 8 a.m. shift.
The record showed that Bennett was 1 of 22 employees
that were reputed as having voted for the Union. He was
present at the press conference following the election. De-
spite the testimony that Bennett was the highest ranking em-
ployee from midnight to 8 a.m., there was no evidence to
show that he exercised any supervisory authority during that
shift. Bennett worked as an operator and he directed the
work of his more junior coworker, William Tillman. On the
357MCCULLOUGH ENVIRONMENTAL SERVICES
basis of that evidence I find that Bennett was not a super-
visor at material times.
General Counsel argued that the above evidence proved a
violation of the Act by Respondent’s actions in enforcing an
illegal no-solicitation and no-talking policy against its em-
ployees’ union activities. 299 Lincoln Street, Inc., 292 NLRB
172 (1988), and Cannon Industries, 291 NLRB 632 (1988).
I find that Respondent did not have valid no-talking or no-
solicitation rules in place before July 10, 1989. The only in-
stance of Respondent applying such a rule was the occasion
of Respondent reprimanding Bennett on July 10. July 10 was
the day before the Board-conducted election.
I find that Bernard Bennett was discriminatorily rep-
rimanded because of his union activities and because of an
illegal no-solicitation, no-talking rule. Respondent violated
Section 8(a)(1) and (3) by disciplining Bennett.
E. Collins, Harris, and Spann
It is alleged that Respondent violated the Act by dis-
charging four employees. Three of those alleged dischargees,
Lonnie Collins, Richard Harris, and L. C. Spann, made up
Respondent’s entire field crew at the time of their discharge.
Respondent’s field crew of Collins, Harris, and Spann, was
responsible for the checking, cleanup and minor repair of
some 84 pumping stations in the Jackson, Mississippi area.
Their job did not involve major repairs but it was their duty
to report on anything requiring major repair.
There was evidence that Respondent complimented the
field crew on occasion before the July 11 election. L. C.
Spann testified:
we was getting comments from Bob Maines, even
Eckels, saying that, for the manpower we had, we was
doing a good job. We had meetings and say to the field
crew everything is looking better, upward, and—be-
cause—hey, Maines probably could tell you when we
first took over, they probably have pictures, the field
was a mess, and, hey, we was getting praise.
From before the time of the election, up until their dis-
charges, the field crew supervisor was Robert Tim Bunyard.
There were some issues which were common to Collins,
Harris, and Spann.
Many of the common issues involve events on July 11,
1989. All three members of the field crew, were seen by Re-
spondent at a restaurant known as Miss B’s. According to
Respondent, the three employees were not authorized to be
at that restaurant on July 11. Moreover, all three, who were
all at Miss B’s to pick up their lunch, were seen at the res-
taurant before their specified lunchbreak from 11 a.m. to
noon.
Respondent contended that all three employees were out of
their work areas when they were seen at Miss B’s. Respond-
ent’s evidence included testimony of Project Manager (Plant
Manager) Maines.
Robert Maines testified that Lonnie Collins and L. C.
Spann, who were working together on July 11, 1989, were
using one of Respondent’s trucks, as was Richard Harris.
Harris was working the south route along Siwell Road. Ac-
cording to Maines, Harris was working over 10 miles from
Miss B’s restaurant and it would require some 15 to 20 min-
utes from him to drive from the stations where he was as-
signed to work on the morning of July 11, to Miss B’s res-
taurant. Maines estimated that Collins and Spann were work-
ing approximately 10 miles from Miss B’s and, they too,
would need 15 to 20 minutes to drive from their work area
to Miss B’s.
An examination of the Jackson city map, which was intro-
duced into evidence by Respondent, shows that Harris’ work
area was along the 8-mile circle. That circle denoted a radius
of 8 miles from the center of downtown Jackson. Miss B’s
restaurant, which is almost directly south of the downtown
center designated on the map, is located between the 1-mile
circle and the 2-mile circle. While Harris’ work area is not
on a direct line connecting the downtown center with Miss
B’s, it was in the same general direction. Harris’ work area
is southwest of downtown center. The difference between the
Miss B’s location, approximately 1-1/2 miles from the down-
town center, and Harris’ work area location, approximately
8 miles from downtown center, would be in excess of 6-1/2
miles direct. Obviously, travel by streets would require a
longer drive than the air miles between the two locations.
A computation of the distance from Miss B’s to the work
area of Collins and Spann, would be less precise because
their work area was due west of the downtown center. Col-
lins and Spann were working short of the map line desig-
nating 6 miles from downtown center; what appears to be ap-
proximately 5-1/2 miles from downtown center. By looking
at the map, it appears the direct distance from their area to
Miss B’s restaurant, would be slightly less that the distance
from their work area to the downtown center; perhaps, a lit-
tle less than 5 miles. Again, the driving distance would be
greater.
The McDowell Exxon station appears to be some 3 miles
from downtown center, perhaps 4 to 4-1/2 miles from Col-
lins’ and Spann’s work area and, approximately 1-1/2 miles
from Miss B’s. Again, those would be direct distances. Driv-
ing distances would be greater.
Livingston Street, which was identified by Lonnie Collins,
as being where he and L. C. Spann actually ate their lunch
after leaving Miss B’s, is something slightly over 1 mile
north of the downtown center.
Robert Maines testified that Lonnie Collins and L. C.
Spann were using Respondent’s truck number 3, on July 11,
and they had been using that same truck for at least 3
months before July 11. Maines agreed that the gas gauge on
truck number 3 was broken. Due to the gauge being broken,
Collins and Spann were, according to Maines, required to fill
up the truck each morning as they started out on their route.
As to the events during lunch on July 11, there does not
appear to be a serious dispute regarding the question of time.
Harris, Collins, and Spann all appeared at Miss B’s well be-
fore the designated 11 lunch breaktime. However, there is a
serious dispute regarding Respondent’s policy regarding its
tolerance of extending the lunchbreak before 11 a.m. and its
tolerance of permitting its employees to leave their work
areas.
F. Richard Harris
Richard Harris’ termination form included the following
explanation:
Job negligence, failure to follow directive (insubordi-
nate), unauthorized use of Lift sta. vehicle.
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When asked to identify the job negligence and insubor-
dination involved in Harris’ termination, Project Manager
Robert Maines testified:
He left a lift station unsecured, wide open to the
public, what we call freelancing as far as his lunch
breaks.
. . . .
I—one of which I know is lift station vehicle usage
as well as, particularly, now, the lunch break directive.
Robert Maines identified two disciplinary actions which
contributed to the discharge of Harris. On July 3, 1989, Har-
ris was suspended for 2 days after a determination that Harris
was at fault in a lift station being left unsecured on June 22,
1989. Maines testified that was a major offense, due to the
possibility of injury or death to someone, especially a child,
if they got into a lift station.
Again, on July 11, 1989, Harris was suspended. When Su-
pervisor Bunyard recommended Harris’ termination by memo
dated July 12, he discussed the incident which led to the July
11 suspension:
On July 11, 1989, Mr. Harris was placed on 1 /2 day
suspension pending review of his personnel file. The
reason behind the suspension was leaving his des-
ignated route in a company vehicle to buy lunch at a
place designated as off limits due to the amount of time
and travel involved. Mr. Harris also took lunch 35 min-
utes longer than Maintenance personnel normally takes.
Mr. Harris was aware that the company vehicle was not
to be used in this manner but ignored the policy alto-
gether. Mr. Harris was also placed on 2 day suspension
on July 5th and 6th for violating safety procedures at
Forest Park lift station on June 21, 1989. Mr. Harris at-
titude and his job performance have been less than de-
sirable. My recommendation at this point is termination.
Despite Bunyard’s July 12 memo which gives the impres-
sion that termination was still being considered, the evidence
is uncontested that Respondent’s observer at the July 1
NLRB election challenged Richard Harris’ vote on the
grounds that Harris had been discharged at 12 noon on July
11.
Robert Maines, in testimony regarding his reasons for dis-
charging Harris, testified:
[Harris] did—he became anti-establishment, it ap-
peared. He could not follow the policies. He was just
being insubordinate towards policies.
On July 11, 1989, Supervisor Tim Bunyard wrote the fol-
lowing memo:
On July 11, 1989, Richard Harris was seen off his
route going to lunch at 10:35 AM. Richard has been
told that Ms. B’s was off limits for lunch due to the
amount of time it takes to get to and from that area.
Only time lunch can be bought there is when working
at West Rankin Pumping Station. Lunch hour starts at
11:00 AM and ends at 12:00 PM with no exceptions
unless otherwise discussed with me. Lunch hour is to
be taken within the designated route only with no ex-
ceptions. This is a letter of reprimand that will enter
your personal file along with the rest of today and to-
morrows work shift being suspended. You are place on
disciplinary leave for the remaining of your work shift
today and also for the work shift on July 12, 1989. You
will report back to work on July 13, 1989 at 7:00 AM.
Richard Harris does not dispute Respondent’s assertion
that he went to lunch before the 11 lunch period, on July 11.
What Harris does contend is that he did not violate estab-
lished practice by going to lunch early on July 11.
Harris testified that he was making his normal rounds of
the south lift stations on the morning of July 11, when he
discovered that key 253, Ramada Circle, was missing from
the key ring he had been given that morning by Supervisor
Robert Tim Bunyard. He radioed Bunyard, drove over to
where Bunyard was working in the McClure area, and picked
up key 253. However, later that morning, after Harris fin-
ished his work at Ramada Circle, Harris discovered that the
keys for the next several stations on his route, were also
missing from the ring he had been given by Bunyard. Harris
again radioed Bunyard, who by that time had left the
McClure area. On that occasion Bunyard told Harris that he
would get the keys to Harris, but that it would be after lunch
before he could do that. According to Harris, at that time he
was out of work until Bunyard brought the keys.
Harris testified that his personal keys had been confiscated
by Tim Bunyard. Bunyard told him that Project Manager
Maines needed Harris’ keys so that Maines could check the
stations.
It was 10:15 a.m., when Bunyard told Harris he would
meet him at the plant and give him the keys after lunch. Har-
ris was temporarily out of work due to his not having the
necessary keys. Harris drove over to Miss B’s for lunch, ar-
riving at Miss B’s around 10:35 or 10:40 a.m.
Supervisor Tim Bunyard denied that he had any radio con-
versations on the morning of July 11 with Harris regarding
keys. Bunyard testified that he confiscated Harris’ keys after
Harris was discharged and that only one key, the key to
McClure Station Number 4, was missing from that key ring.
Robert Maines testified that an examination of Harris’ log
for July 11, illustrated to him that Harris had plenty of work
to keep him busy until his regular lunchtime regardless of
whether he had keys for some of the stations as Harris
claimed in his testimony. Moreover, according to Maines,
Harris’ July 11 log, shows that Harris did in fact, check
some of the stations which he contended he was unable to
check because he did not have keys.
Harris admitted that he was in violation of the rule Wil-
liam Eckels has laid out regarding when the employees could
drive to Miss B’s.
After getting his lunch Harris was radioed by Bunyard and
told to meet Bunyard at the plant at noon. Harris ate lunch
in a park in front of the plant. Harris then went to Bunyard’s
office. Bunyard was there with Supervisor Jackie Kiser:
[Bunyard] proceeded to sit down and tell me, he
said, ‘‘I followed you to Miss B’s. Did you know it
was off limits?’’ And it’s never been off limits that I
know of because Eckels straightened that up earlier as
to where we could eat. And they told us if we was off
up north or down south not to come all the way fifteen,
359MCCULLOUGH ENVIRONMENTAL SERVICES
fourteen or fifteen miles just to eat at Miss B’s, and if
I was down south not to come all the way back from
down south to eat, but if I was right in the vicinity it
was okay to eat there. It never was a case of where it
was off limits.
. . . .
He told me I would be suspended because of that.
And that was July the 11th. And he proceeded to tell
me that he didn’t know how it would effect me voting
that same afternoon. He said he would call Maines, but
I don’t know whether he called him or not, and I left
shortly afterwards.
. . . .
He told me to come back on the 13th, July 13th, but
that same of the 11th I came back to vote, and my vote
was challenged, and the company observer, Don Dixon,
told me I couldn’t vote because I had been terminated
as of 12:00 of July the 11th.
. . . .
[On July 13] I went to the administration office, and
when I got there, it was Maines, Eckels, Kiser and
Bunyard was already in the office. And he called me
in and told me to be seated, and he proceeded to say
it wouldn’t take long, what he had to do.
. . . .
[Maines] told me it wouldn’t take long. He said I
would be terminated as of that day.
I told [Maines] that I didn’t think it was right; I was
lured out in the area to where I didn’t have nothing to
work with, no keys or nothing, and it wasn’t fair.
The record includes evidence showing both that Richard
Harris was active in the 1989 union campaign and that Re-
spondent knew or suspected that Harris was deeply involved
with the Union.
Harris testified that he signed a union authorization card,
attended three or four union meetings, and ‘‘got somebody
to sign a union card.’’
Additionally, there was evidence that Respondent sus-
pected that Harris was one of the leading employee orga-
nizers for the Union.
Harris testified about a conversation he had with Tim
Bunyard before Bunyard became a supervisor, around April
1989, while at work:
[Bunyard] came to me and he told me, ‘‘Hey, I
know you was the organizer of this union they’re trying
to get.’’ And I told him, ‘‘Maybe so.’’ He told me I
worked at G.E., and I was part of a union at G.E.
Harris recalled a conversation with Bunyard about 2 weeks
after Bunyard became supervisor, in Bunyard’s office. Lon-
nie Collins and L. C. Spann were also present:
And [Bunyard] went through the same, telling me
that I was an organizer because I worker for General
Electric.
A former employee of Respondent, Michael Anthony
Langston Sr. testified that he overheard the following con-
versation while at work in the shop near the water fountain,
between Bill Eckels and Tim Bunyard about 1 week after the
Union filed its representation petition:
Tim Bunyard replied to Bill Eckels, saying that he
believed that Richard [Harris] was the organizer, and
Eckels replied to him, saying he felt like—he said he
didn’t know because it may have been Mose because
Mose attempted to start these meetings earlier.
On cross-examination, Langston admitted that he was not
certain that the above conversation occurred after Bunyard
became a supervisor. As shown above, the parties stipulated
that Bunyard was a supervisor from 12 p.m. on June 5, 1989.
Respondent admitted that Bill Eckels was a supervisor at all
material times.
Langston also admitted during cross-examination, that he
did not hear the word union mentioned during the conversa-
tion between Bunyard and Eckels.
The former field maintenance supervisor, Earl Medlock,
testified that after an employee meeting in which Respond-
ent’s president, Jerry Mitchell, spoke to employees on April
4, 1989, he was called into William Eckels’ office. Among
other things the conversation between Eckels and Medlock
included Eckels commenting:
There are some people in maintenance, and you
know them, that are pro-union.’’ And I told Bill,
‘‘Well, I don’t know anybody,’’ because I didn’t know
anything about the letter or the people hadn’t been say-
ing anything. He said, ‘‘You know them. One of them
is Richard Harris.’’
And he went on to say, ‘‘Richard, he came from
G.E., and G.E.’s a union plant, and I imagine he’s
heavily involved in the union. And Richard and L. C.
are real close friends, and I imagine L. C.’s involved,
too. Lonnie Collins, he could go either way, but by him
being L. C.’s cohorts, or they’re buddies and they hang
out together, I imagine Lonnie’s involved in the union
also.’’
Bill Eckels went on to say that Richard Harris
worked at G.E. for almost twenty years, and if a man
worked inside a union for twenty years, then he has
union in his blood, and he guaranteed it.
He said that ‘‘Richard’s come to work after lunch on
several occasions with alcohol on his breath, and if he
don’t stop he’s going to mess up and lose his job. He’s
going to be terminated. I don’t have to set no trap for
him; all I have to do is wait for him to mess up, be-
cause eventually he’s going to mess up one way or the
other.’’
And [Eckels] talked about another fellow that
worked there at the administration building that was
more or less a janitor.
. . . .
Well, he said he was very rebellious and that he was
against everything that McCullough was standing for
and that if anybody had anything to do with the union
he would be one of them. And he was planning on
keeping his eye on Richard Harris and this fellow. For
the life of me, I just can’t think of his name right now.
Yeah, it was Brian King, that’s who it was.
Eckels admitted that he and Medlock speculated that Rich-
ard Harris may have been involved with the Union. Eckels
went on:
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Well, Mose Bishop told me that we knew—Mose
Bishop’s preacher used to be the shop steward down
there at General Electric, and he knew Richard Harris.
So when Richard Harris was hired, Mose Bishop knew
about him already, and that he was a union member,
and that he—you know, he was a strong union man.
Earl Medlock testified that he issued a written warning to
Richard Harris because Harris failed to check a pump station
which had gone out over a weekend and caused flooding of
a home. Medlock resisted warning Harris because Bill Eckels
had told him that the crew did not need to check the new
pumps often because those pumps were still under warranty.
Despite Medlock’s protest, Eckels insisted that Harris be rep-
rimanded on threat that failure to discipline Harris could re-
sult in the discharge of Medlock. The warning, General
Counsel’s Exhibit 13, was dated April 27, 1989, and, as
shown above, Harris refused to sign the warning.
Harris corroborated Medlock’s testimony regarding the
warning he received on April 27, 1989. As shown above, the
comments on the bottom of the written warning support Har-
ris’ and Medlock’s testimony that Harris refused to sign the
warning.
As mentioned above, on June 27, 1989, Harris was given
a written warning by Tim Bunyard, allegedly because Harris
failed to secure a lift station door. On that occasion, when
Harris initially refused to sign the warning, Bunyard told him
that he would be discharged if he refused to sign the warn-
ing. Again, at a meeting with Project Manager Bob Maines,
Harris was told that he would be terminated if he refused to
sign the warning. Harris signed the warning and added the
following writing:
I don’t agree with this letter because its due to union
activity going on, where as a first time offense, war-
ranted a reprimand and everyone picking on people
who they think might support union, where my super-
visor accused me of union activity recently.
That written warning also contains a note signed by Tim
Bunyard, ‘‘Refused to sign 6–28–89.’’
L. C. Spann testified that he had several conversations
with Field Supervisor Tim Bunyard about the Union. Spann
testified that the second of those conversations occurred
about 3 weeks before the election in Bunyard’s office:
[Bunyard] told me that he didn’t know if I had any-
thing to do with the union or not, but he was aware that
Richard Harris was employed at G.E., and they had a
big union over there, and he believed that Richard Har-
ris was probably the man.
Former employee Derrick Wells testified about one of sev-
eral conversations he had with Maintenance Supervisor Bill
Eckels at work on July 8, 1989:
[Eckels] told me—he asked me did Richard Harris
talk to me about the union that day I was out there. I
told him I was trying to stay out of it. He told me I’d
go out in the field one day and they’d change me over.
Lonnie Collins testified that he overheard a conversation
involving Tim Bunyard and Richard Harris, before the elec-
tion but after Bunyard became supervisor, at the Ramada
Circle pump station, and that Bunyard asked Harris if he was
a big man, a union man at G.E. Collins recalled that Harris
did not respond to Bunyard’s question.
There was also some evidence which tended to show that
Respondent decided to get rid of Harris because of its belief
that Harris was one of the primary union pushers.
As shown below, according to Lonnie Collins’ testimony,
he and his work partner on that day, L. C. Spann, were
called into the plant after lunch on July 11, where he met
with Supervisors Bunyard and Kiser. His testimony, which is
quoted below, included the following:
Well, he had said that L. C. had got a warning letter
and Richard [Harris] had got one for going to lunch
early. He had told me that they had been following
Richard all day long, and they seen that he went to
lunch thirty minutes early or something, and he had
told me if they got a warning letter I had to get one,
too.
L. C. Spann was also suspended on July 11. As Spann
was at the truck before leaving, Tim Bunyard came over and
talked with him. That conversation included the following:
Bunyard came over and tried to talk to me. And he
touched me, and I told him not to touch me. I told him
to get his hands off me because ever since he’d been
supervisor he’d been causing problems for me, and he
said—and I didn’t want it. He said, ‘‘Look here, let me
talk to you a minute.’’ He said, ‘‘You and Collins got
caught up in the wrong thing at the wrong time. This
wasn’t for you all.’’
But, hey, he said something about Bob Maines had
followed Richard Harris to Miss B’s, and he had saw
me at the Exxon, and he had got a call from Maines
going to Miss B’s where he knew that I was at the
Exxon. And I showed him the ticket and everything,
and he said, hey, we just got caught up at the wrong
place, wrong time.
Maintenance Supervisor William Eckels admitted that until
July 11, 1989, no member of a lift crew had ever been dis-
ciplined for abuse of lunch break. Eckels testified that he
was aware before July 11, 1989, that Miss B’s was a popular
spot for lift station operators to take their lunch breaks.
William Eckels testified that he and the then Field Super-
visor Earl Medlock, speculated that Spann and Lonnie Col-
lins might be for the Union in view of the fact that they
worked with Richard Harris.
Eckels admitted that he and Medlock speculated that Har-
ris was pushing the Union.
In consideration of the allegations regarding Richard Har-
ris’ discharge, I do not credit the testimony of Tim Bunyard.
As shown above, I find that his testimony is unreliable. I do
credit the testimony of William Eckels. Due to evidence that
Earl Medlock pleaded guilty to embezzlement, I shall dis-
credit his testimony to the extent that it conflicts with cred-
ited testimony. However, in that regard, I find that
Medlock’s testimony was frequently corroborated by credited
testimony including, in many instances, the testimony of
Maintenance Supervisor William Eckels.
361MCCULLOUGH ENVIRONMENTAL SERVICES
As to the merits of the allegations regarding Richard Har-
ris, I am convinced that Harris was discharged because Re-
spondent suspected that he was a strong union advocate. The
evidence which I find convincing includes testimony includ-
ing admissions, that Respondent’s supervisors made several
comments to employees about Respondent’s belief that Har-
ris was a strong union man; the timing of Harris’ discharge
(i.e., on the day of the NLRB election); and the evidence
showing disparity in Respondent’s treatment of Harris.
The evidence showed that Harris was actually discharged
on July 11. In that regard I credit the following testimony
of Harris which was not contested:
He [Bunyard] told me I would be suspended because
that. And that was July the 11th. An he proceeded to
tell me that he didn’t know how it would effect me vot-
ing that same afternoon. He said he would call Maines,
but I don’t know whether he called him or not, and I
left shortly afterwards.
. . . .
He told me to come back on the 13th, July 13th, but
that same of the 11th I came back to vote, and my vote
was challenged, and the company observer, Don Dixon,
told me I couldn’t vote because I had been terminated
as of 12:00 of July the 11th.
Respondent did not dispute that its election observer told
Harris that he had been discharged effective at noon on July
11, 1989.
Although the evidence was considerable that employees
routinely abused their lunch and break privileges, the evi-
dence also showed that until July 11, no one had been dis-
ciplined because of that abuse. In that regard William Eckels
admitted that until July 11 no employee had been discharged
because of abuse of a lunchbreak.
On July 11 Richard Harris left his route and drove several
miles to buy lunch at Miss B’s. He was off his route long
before his designated lunch hour and he did not advise his
supervisor that he was breaking early. Although the evidence
is disputed as to why Harris left his route early and drove
to Miss B’s, I find that Harris did in fact, disobey Respond-
ent’s policy regarding lunchbreaks.
Respondent, in its brief, pointed to what it considered an
unbelievable story as to why Harris had deviated from his
route and drove to Miss B’s on July 11. However, Respond-
ent also expressed disbelief in the stories of Lonnie Collins
and L. C. Spann as to why they drove to Miss B’s for lunch
on July 11. As shown below, I find disparity in the treatment
of Harris in part because of the similarity in the incidents in-
volving Harris, Collins, and Spann on July 11. Although the
events were similar, Respondent’s punishments were not
similar. However, I do not base my finding on a determina-
tion that Harris, Spann, and Collins were truthful in their ex-
planations of why they were justified in going to Miss B’s
on July 11. All three employees did, in my opinion, abuse
their lunch privileges.
There is no question but that the above facts would nor-
mally provide more than adequate grounds for an employer
to discharge an employee. I find that this was not a normal
situation in view of several factors.
It was not Respondent’s practice to discharge employees
because they abused its lunchbreak policy. Tim Bunyard tes-
tified that the field crew frequently abused that privilege
when he was on the crew until November 1988.
Moreover, Respondent did not discharge employees after
July 11 because of abuse of lunch privileges. In fact contem-
poraneously with Harris’ actions on July 11, two other al-
leged discriminatees, Lonnie Collins and L. C. Spann, en-
gaged in precisely the same action. As shown below, both
Collins and Spann, left their routes well before 11 a.m.,
drove to Miss B’s to buy lunch where they were seen by Su-
pervisor Bunyard, and those two employees did not return to
their work until the end of their regular lunch period. As
shown below, L. C. Spann was reprimanded a second time
on July 26, 1989, for abuse of lunch privileges. Nevertheless,
those two lunchbreak infractions did not contribute toward
Spann’s discharge.
In view of the above evidence, it is impossible to distin-
guish the magnitude of the improper conduct by Spann and
Collins from the conduct of Harris. Nevertheless, Respondent
treated the three differently. Spann and Collins were sus-
pended and reprimanded. Richard Harris was discharged.
Of the three, Richard Harris was suspected as being the
most ardent union pusher. In fact, the evidence shows that
Spann and Collins were occasionally linked with the Union
by Respondent, because of their association with Richard
Harris.
The record evidence does not show any other reason why
Harris was the only employee that was ever discharged be-
cause he abused his lunch privilege. In making that deter-
mination I am aware that Respondent referred to Harris’ June
27 reprimand, as an additional basis for his discharge.
The record evidence illustrated that the June 27 reprimand
was not mentioned during conversations with Harris over his
discharge or suspension and it was not mentioned in the July
11 memo from Bunyard showing the basis for Harris’ sus-
pension. At the July 11 election, Harris was informed by Re-
spondent’s election observer that he had been terminated at
noon that day.
I am convinced from the record, that Harris was fired on
July 11, 1989. I find that the sole reason given for his dis-
charge was his July 11 abuse of his lunch hour.
Moreover, even if I should find that Respondent actually
considered his June 27 reprimand as shown in testimony and
in writings after July 11, the evidence shows that too would
be discriminatory. Other employees, including Spann and
Collins, had prior reprimands but were not discharged be-
cause of lunch privilege violations.
Finally, I find that the evidence is conclusive that Re-
spondent suspected that Richard Harris was one of the major
reasons why it was confronted with a union organizing cam-
paign.
The record did not include evidence that Harris would
have been discharged in the absence of his union activities.
I find that General Counsel proved that Respondent was mo-
tivated in the discharge of Harris by its belief that Harris was
a union advocate and Respondent failed to prove that Harris
would have been discharged in the absence of union activi-
ties. (Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983);
Delta Gas, 283 NLRB 391 (1987), enfd. 840 F.2d 309 (5th
Cir. 1988); Southwire Co. v. NLRB, 820 F.2d 453 (D.C. Cir.
1987).)
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
G. Lonnie Collins and L. C. Spann
Both Lonnie Collins and L. C. Spann were discharged
after each of them refused to sign a written reprimand.
As shown above, the record shows that Respondent’s em-
ployees voted in a Board-conducted election at its facility in
Jackson, Mississippi, on July 11, 1989. After the election
several employees met with news people regarding the
Union’s victory in that election. Chester Hicks, a laboratory
technician for Respondent, testified that in addition to Union
Agent Kenneth Paige, there were several employees at that
news interview at Respondent’s facility, including Lonnie
Collins, James Varnado, L. C. Spann, Brian King, 11 other
employees named by Hicks, and Hicks. Hicks testified that
several of Respondent’s supervisors saw the employees at the
news conference. Lead Operator Tommy Wash, who was
formerly a laboratory technician at the time of the election,
and laboratory technician James Varnado, corroborated the
testimony of Chester Hicks regarding the news interview
after the NLRB election on July 11, 1989. Varnado recalled
that employees at that news interview in the conference room
at Respondent’s Jackson plant, included most of the employ-
ees that supported the Union including, among others, Rich-
ard Harris, L. C. Spann, Lonnie Collins, Brian King, and
himself.
Richard Harris worked alone on July 11, 1989. However,
Harris, Collins, and Spann were all at Miss B’s restaurant
that day. Collins and Spann were working together on July
11.
The complaint alleges that Lonnie Collins and L. C.
Spann were discharged in violation of Section 8(a)(1) and (3)
of the Act.
Lonnie Collins was discharged on July 12, 1989, and
L. C. Spann was discharged on July 28, 1989. Both Collins
and Spann were allegedly discharged for refusing to sign
written reprimands.
Robert Maines and William Eckels testified that both
Spann and Collins, would be working today, absent future
problems, if each of them had not refused to sign written
reprimands.
Supervisor Tim Bunyard issued the following reprimand to
Lonnie Collins:
On July 11, 1989, Lonnie Collins was seen off his
route going to lunch at 10:40 AM. Lonnie knows
lunchbreak starts at 11:00 AM to 12:00 PM. Lonnie is
also aware that he is not supposed to be off the des-
ignated route due to the amount of time it takes to go
to and from Ms. B’s to buy lunch. Lunch hour is to be
taken within the designated route only, with no excep-
tion. This is a letter of reprimand that will enter your
personal file along with the rest of today’s shift being
suspended.
At the bottom of the memo was the following note:
Lonnie refused to sign letter stating Ken Paige in-
structed him that he didn’t have to sign any letters of
reprimand Lonnie was discharged following refusal and
left before further counseling could be initiated. 7–12–
89 Furthermore Lonnie stated that Richard Harris &
L. C. Spann were his supervisors according to Earl
Medlock. I explained to Lonnie that refusal was a dis-
charge offense and he was discharged and had the right
to contact Paula and set up a meeting to speak with
Bob Maines. At that time I instructed Lonnie that he
was discharged and to punch his timecard and leave the
plant site.
Spann, like Lonnie Collins, was suspended from work on
July 11. Following his suspension, Spann did not return to
work until July 18 due to his suspension, illness, and vaca-
tion. On July 18 Bunyard presented Spann with the written
warning for the July 11 incident:
On July 11, 1989, L. C. Spann was seen off his
route going to lunch at 10:40 AM. L. C. has been told
that Ms. B’s was off limits for lunch due to the amount
of time it takes to get to and from that area. Also, the
only time lunch can be bought there is when working
at West Rankin Pumping Station. Lunch hour starts at
11:00 AM and ends at 12:00 PM with no exceptions
unless otherwise discussed with me. Lunch hour is to
be taken within the route designated only no excep-
tions. This is a letter of reprimand that will enter your
personal file along with the rest of today’s shift being
suspended.
L. C. Spann testified about July 11:
Collins and I were working in the McRaven area,
and we ran out of gas in the company vehicle. We was
able to get enough gas out of the lawnmower to get us
to the Exxon, McDowell. This is where we purchase all
of our gas.
. . . .
(We left the Exxon station at) approximately 10:37,
according to the gas ticket that I purchased with Exxon.
. . . .
Collins and I, we went to Miss B’s for lunch due to
the fact that we didn’t have a break that morning.
. . . .
Lonnie Collins and I, we purchased our lunch to go.
. . . .
When I got to Miss B’s, there were some city work-
ers there. Richard Harris was also there, another em-
ployee of ours.
. . . .
Collins and I, we went to a little park up here not
far off Fortification. we call it Livingston Park (where
we had our lunch).
After returning from lunch, Spann and Collins were called
into the office, where each was called in before Supervisors
Bunyard and Kiser. Spann testified:
Bunyard began by asking me what time did I go to
lunch that day, and I told him that I went to lunch
early, and I tried to explain why I had went to lunch
early, due to the fact that we ran out of gas. And he
said, ‘‘Well, I got you going to lunch at 10:40,’’ and
I told him that I was at the Exxon at that time, pretty
much around that time. And he stated that he had had
a meeting with Harris earlier, and he had suspended
Harris, and he was going to have to go ahead and sus-
pend me the rest of that day and the next day.
363MCCULLOUGH ENVIRONMENTAL SERVICES
And he stated that I was going to be wrote up for
that, and he asked me some questions concerning Miss
B’s being off limits, which I wasn’t aware of. I told
him I didn’t know.
. . . .
He said, ‘‘Don’t you remember when Earl Medlock
told you Miss B’s was off limits?’’ And I told him I
sure didn’t.
. . . .
(After being suspended, Spann was at the truck),
Bunyard came over and tried to talk to me. And he
touched me, and I told him not to touch me. I told him
to get his hands off me because ever since he’d been
supervisor he’d been causing problems for me, and he
said—and I didn’t want it. He said, ‘‘Look here, let me
talk to you a minute.’’ He said, You and Collins got
caught up in the wrong thing at the wrong time. This
wasn’t for you all.’’
But, hey, he said something about Bob Maines had
followed Richard Harris to Miss B’s, and he had saw
me at the Exxon, and he had got a call from Maines
going to Miss B’s where he knew that I was at the
Exxon. And I showed him the ticket and everything,
and he said, hey, we just got caught up at the wrong
place, wrong time.
On cross-examination Spann testified that he did not have
money to buy gas at a station near his route and, for that
reason, he drove to the McDowell Exxon which is the only
station where he could charge the fuel to Respondent. Spann
testified that he may have had some cash, and, if Monday,
July 10, was a pay day, that he ‘‘probably’’ did have some
money.
Maines testified that both Spann and Collins were sus-
pended on July 11 because of abuse of lunch hour.
The evidence is undisputed that Collins refused to sign the
July 11 reprimand. According to Robert Maines, Collins told
him that had not done anything wrong and that he had been
advised by the union agent, Mr. Paige, not to sign anything.
Lonnie Collins testified that he received two warnings.
The first occurred in June 1989, when a lawn mower locked
up while being used by Collins. Collins signed that written
warning. However, he testified that he was not told that he
would be disciplined if he refused to sign.
Collins testified that the supervisors knew it was common
practice for the employees to eat lunch at Miss B’s. Accord-
ing to Collins, he was never told that Miss B’s was off lim-
its.
Maintenance Supervisor William Eckels admitted that until
July 11, 1989, no member of a lift crew had ever been dis-
ciplined for abuse of lunchbreak. Eckels testified that he was
aware before July 11, 1989, that Miss B’s was a popular spot
for lift station operators to take their lunchbreaks.
On July 26, 1989, L. C. Spann received two written rep-
rimands and was suspended for 2 days. The reprimands al-
leged that Spann left a lift station unlocked and that Spann
used a company vehicle off route on July 25 when he drove
to a park for lunch.
On July 28, when Spann returned to work from his 2-day
suspension, he was presented with the two reprimands.
Spann was discharged because he refused to sign the rep-
rimands. Robert Maines testified that Spann refused to either
sign or return to Respondent, the two written reprimands pre-
sented to him by Supervisor Bunyard on July 28.
On August 7, 1989, Robert Bunyard, lift station super-
visor, wrote a memo regarding the discharge of L. C. Spann:
On July 28, 1989, L. C. Spann reported back to
work after two day suspension. Mr. Spann was given
the two letters of reprimand, one for Lift Station secu-
rity and the other for use of company vehicle off route.
Mr. Spann read both letters and refused to sign. I told
Mr. Spann of the policy on refusal to sign reprimands.
That signing the letter didn’t mean that you agree with
the letter; but that you’ve read the letter and refusal to
sign was insubordination and a dischargeable offense.
Mr. Spann was full aware of this and therefore was ter-
minated. All of the above proceedings took place in the
presence of Jackie Kiser. Mr. Spann refused to give the
letters back.
The memo Spann received on July 26, regarding ‘‘Viola-
tion of Lift Station Security,’’ follows:
On July 24, 1989, while installing watchman clock
keys on the North route lift stations; I found that
McRaven #2 control panel was not secure. This lift sta-
tion does not have a fence around it, leaving exposed
electrical equipment open to the public. After investiga-
tion of the incident, I found that L. C. Spann was the
last operator to inspect that station.
On June 22, 1989, a memo was issued stating the
importance on lift station security. This memo was read
and initialed by Mr. Spann on that date. Mr. Spann,
was also in the process of training a new employee.
This type of error can not be tolerated, especially when
a new employee is looking to you for guidance. Mr.
Spann has been questioned about this incident and feels
confident that he secured this station. After investiga-
tion of all records, I can find no other employees to be
involved with this station other than Mr. Spann on July
19, 1989 until July 24, 1989; when I myself did work
there. Mr. Spann was placed on two days suspension
until July 28, 1989.
This is a letter of reprimand that will enter your per-
sonal file. I feel like this was an honest mistake on Mr.
Spann’s part, but when security of the station and safe-
ty to the public is involved its a mistake that will not
be tolerated.
Spann’s other July 26 memo follows:
On July 25, 1989, L. C. Spann was assigned work
at Will-O-Wood lift station. At 11:30 A.M., I pulled
into Yarbro lift station to find Mr. Spann taking
lunchbreak at a park next to Yarbro. This station is not
near Will-O-Wood and is considered to be off route.
There is a Dairy Queen 1/2 mile from Will-O-wood,
and it would have made a lot more sense to go there
and eat than to Metro Center, which is approximately
five miles from Will-O-Wood.
There seems to be some misinterpretation of where
lunch should be taken. I might suggest lunch be
brought from home to avoid confusion in the future.
Mr. Spann was reprimanded two weeks ago for the
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
same action and this type of action needs to be cor-
rected.
This is a letter of reprimand that will enter your per-
sonal file. Mr. Spann received two days suspension
ending July 28, 1989, so no further disciplinary action
will need to be taken on this matter.
On July 20, 1989, while Spann was working at the West
Rankin station, Bunyard told him that he could eat lunch that
day at Miss B’s.
As shown above, Spann was reprimanded on July 26 for
‘‘violation of lift station security.’’ Spann was told that he
had left a control cabinet open. According to Spann he told
Bunyard that he did not leave the panel open. Bunyard told
him that he would suggest to Bob Maines that Spann receive
an oral warning. On July 25, while at a park near
Yarborough, having lunch, Bunyard came by and talked with
Spann. Spann testified that conversation included:
[I asked Bunyard] did he hear anything else about
the control cabinet. And he said Bob Maines was call-
ing his lawyer, his attorney. He wanted to be legal
about it. And if he found out anything else, he’d let me
know, you know, later when we get in.
Later that day, around 3:30, Bunyard told Spann he would
set up a meeting with Project Manager Maines about the
control cabinet incident. Spann testified that his conversation
with Bunyard continued:
[Bunyard] asked me about the—he said, ‘‘When I
saw you guys at Yarborough on your lunchbreak, had
you all gone to Revel before or after.’’
. . . .
Revel Hardware is a hardware store where we pur-
chase most of our miscellaneous parts. And I said, ‘‘We
went after we saw you at Yarborough.’’ And then he
said, ‘‘Hey, look here, you were down at Yarborough;
that’s about four miles from Willow Wood. What were
you doing down there?’’ I said, ‘‘Hey, we was having
lunch.’’ And he said, ‘‘Hey, look here, I told you’’—
he said, ‘‘Haven’t I told you about the Miss B’s?’’ I
said, ‘‘Yeah, you told me about Miss B’s.’’ And he
said, ‘‘Well, look here, man, we’re going to have to get
this lunch thing straightened out, but, look here, you’re
not going to get a letter of warning or nothing for this,
but, hey, we’ve got to work out something. I’m going
to suggest that from now on maybe, you know, lunch
be brought on the route from then on instead of riding
that far away. I will issue a memo or something later
on it.’’
Subsequently, Spann, his helper, Young, and Bunyard met
with Project Manager Bob Maines, in Maines’ office:
Young, he was sure that I didn’t leave the (control
cabinet) open. And, hey, Maines, he made a statement
that he used to could step in and help, you know, in
a situation like this, but he said twenty-two people were
the reason he gave up that right.
Q. And, to your knowledge, what was he referring
to?
A. Well, to me, twenty-two people voted for the
union.
. . . .
[Maines] mentioned to Bunyard, ‘‘What about the
other one?’’ And Bunyard said, ‘‘Hey, we got that
cleared up. It was just a little misunderstanding.’’
. . . .
Maines wanted to talk to Bunyard alone. Young and
I left, waited outside on Bunyard for the outcome.
[A]bout ten minutes Bunyard, he came out, and he
wanted to talk to Young and I, but he wanted to talk
going back towards the van leaving Maines office. And
he said, ‘‘Hey, look, they want to let it stand just like
it is on the control cabinet. You’re going to go ahead
and get a warning, reprimand, and you’re going to be
suspended for a couple of days. You’re not going to re-
port back to work until the 28th, and I have the rep-
rimand ready for you.’’
When Spann returned to work on July 28, he was given
two reprimands by Bunyard. One, which is shown above,
dated July 26, dealt with the control cabinet incident (G.C.
Exh. 22), and the other dated July 26, dealt with Spann,
along with Young, having lunch on July 25 (see above, G.C.
Exh. 21). Spann testified that he was given the reprimands
by Bunyard in Bunyard’s office. He testified:
I was upset about it because I was expecting one,
and it was two. And I said, ‘‘Hey, I’m not going to
sign it.’’ He told me to think about it because it was
going to mean that I was going to be terminated if I
don’t sign it.
Spann was given an opportunity to reconsider but he per-
sisted in refusing to sign the reprimands and was discharged.
His testimony regarding the incident involving his discharge,
included the following:
I asked [Bunyard], ‘‘Look, if I do sign these, will I
be able to get a copy?’’ And I believe he said, ‘‘No,
but you’ll be able to look in your file. They’ll be there,
you know, in your file, anytime you want to look at it.
You won’t be able to get a copy.’’
And I think I made up my mind—anyway, I said I—
I made up that I wasn’t going to sign because—any-
way, I didn’t sign, and I think I told him I wasn’t going
to sign it. And he asked for the letters back, and I
wouldn’t give it to him.
And he continued to ask for the letter, but I wouldn’t
give it to him. And, if I’m not wrong, I told him that
he could take them if he really wanted them. I think I
made a statement like that. And he said, ‘‘Hey, you
know I can’t do that.’’ So I told him, ‘‘I guess I’m ter-
minated. I guess I’ll be leaving then.’’
Maintenance Supervisor William Eckels admitted that until
July 11, 1989, no member of a lift crew had ever been dis-
ciplined for abuse of lunchbreak. Eckels testified that he was
aware before July 11, 1989, that Miss B’s was a popular spot
for lift station operators to take their lunchbreaks.
William Eckels testified that he and the then field super-
visor, Earl Medlock, speculated that Spann and Lonnie Col-
365MCCULLOUGH ENVIRONMENTAL SERVICES
lins might be for the Union in view of the fact that they
worked with Richard Harris.
The record shows that from June 5 the newly promoted
supervisor over the field crew, Tim Bunyard, set out on a
campaign to crack down on the field crew. Bunyard felt that
the field crew was engaging in undesirable work practices.
Additionally, the record shows that Bunyard was motivated
because of suspected union activities of the field crew.
In view of the mixed motivation behind Bunyard’s crack-
down, it was necessary for me to examine Bunyard’s specific
actions. As shown above, I found that Respondent illustrated
that Bunyard’s crackdown on the lunch period practice was
justified in view of evidence showing that that change in pol-
icy would have occurred in the absence of protected activity.
However, I found that Respondent failed to prove that the
change in its policy of disciplining employees that refused to
sign reprimands, was justified and that Respondent failed to
prove that change would have occurred in the absence of
protected activity.
The record shows that only two employees, Lonnie Collins
and L. C. Spann, were ever discharged because they refused
to sign written reprimands.
The record also shows that despite the numerous other dis-
ciplinary actions imposed against Collins and Spann during
June and July 1989, Respondent relied solely on its conten-
tion that each of them was discharged for refusing to sign
written reprimands.
The record illustrated that Spann and Collins were painted
with the same brush that covered Richard Harris. Because of
Harris, Respondent also suspected that Spann and Collins
supported the Union.
Moreover, the credited evidence illustrates that but for its
decision to discharge Harris in violation of Section 8(a)(3) of
the Act, Respondent would not have suspended Collins and
Spann on July 11. I credit the testimony of L. C. Spann that
Bunyard told him that he had been caught up in an effort
to get Richard Harris:
(After being suspended, Spann was at the truck),
Bunyard came over and tried to talk to me. And he
touched me, and I told him not to touch me. I told him
to get his hands off me because ever since he’d been
supervisor he’d been causing problems for me, and he
said—and I didn’t want it. He said, ‘‘Look here, let me
talk to you a minute.’’ He said, ‘‘You and Collins got
caught up in the wrong thing at the wrong time. This
wasn’t for you all.’’
But, hey, he said something about Bob Maines had
followed Richard Harris to Miss B’s, and he had saw
me at the Exxon, and he had got a call from Maines
going to Miss B’s where he knew that I was at the
Exxon. And I showed him the ticket and everything,
and he said, hey, we just got caught up at the wrong
place, wrong time.
I am convinced that the above comments by Bunyard,
show that Spann and Collins were punished on July 11 be-
cause of Bunyard’s, and Respondent’s, concern that failure to
punish them would adversely effect their case against Rich-
ard Harris. By that action, Respondent was also taking dis-
criminatory actions against Collins and Spann.
The above and the entire record, shows that because of its
concern with its ability to justify its discharge of Richard
Harris; because of its imposition of an illegal rule requiring
its employees to sign written reprimands; and because of its
belief that Richard Harris had caused Spann and Collins to
support the Union, Respondent discharged Spann and Col-
lins.
As found above, Respondent promulgated its rule requiring
discharge for refusing to sign reprimands, because of its sus-
picions regarding union activities of Richard Harris. That
rule was found to have been illegally promulgated on June
27, 1989.
The Board, with support from circuit courts, has consist-
ently found that an employer violates provisions of the Act
when it disciplines employees because of violations of ille-
gally motivated work rules. Asociacion Hospital Del Mae-
stro, 283 NLRB 419 (1987); Contemporary Guidance Serv-
ices, 291 NLRB 50 (1988); Groendyke Transport, Inc. v.
NLRB, 530 F.2d 137 (10th Cir. 1976); D’Yourville Manor,
Lowell, Mass. v. NLRB, 526 F.2d 3 (1st Cir. 1975).
Here, the record shows that Respondent changed its policy
of requiring employees to sign written reprimands to one of
discharging employees that refused to sign written rep-
rimands, because of its suspicion of union activities by its
field crew.
I find that General Counsel proved a prima facie case that
Respondent was motivated by its antiunion animus to rid
itself of the field crew of Harris, Collins, and Spann. The
evidence illustrated that Respondent suspected that Collins
and Spann favored the Union because of the influence of
Richard Harris. Moreover, the record illustrated that Re-
spondent took action against Collins and Spann in an effort
to cover up its illegal actions against Richard Harris.
The evidence failed to show that Respondent would have
discharged Collins and Spann in the absence of protected ac-
tivities. In view of the fact that the rule requiring discharge
on refusal to sign a reprimand, was found to be illegal, that
rule cannot be used as valid justification for the discharges
of Collins and Spann.
Further, the Board found that since the no-distribu-
tion rule itself was unlawful, the rule was not a valid
basis for Bynum’s discharge. Accordingly the Board
found that his discharge ‘‘for passing out union lit-
erature’’ violated section 8(a)(1) and (3) of the Act.
[Groendyke Transport, Inc. v. N.L.R.B., 530 F.2d 137,
142 (10th Cir. 1976).]
Respondent failed to show that Spann and Collins would
have been discharged in the absence of protected activities.
In that regard, Respondent failed to prove that Spann and
Collins would have been suspended on July 11 absent its ef-
forts to rid itself of suspected union pusher Richard Harris.
Even though both Collins and Spann refused to sign written
reprimands, Respondent failed to prove the rule requiring the
signing of written reprimands on penalty of discharge, was
justified on any bases other than illegal ones. In view of that
rule being illegal, Respondent’s use of the rule to justify the
discharges of Collins and Spann, does not constitute a valid
defense. Respondent failed to show that Spann and Collins
would have been discharged in the absence of its employees’
union activities. (Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); NLRB v. Transportation Management Corp., 462
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although Respondent objected to the receipt of Brian King’s affi-
davit, Respondent offered the affidavit of former employee Ken
Thomas on the assertion that Thomas was unavailable. Thomas’ affi-
davit was received over the objection of General Counsel.
U.S. 393 (1983); Delta Gas, 283 NLRB 391 (1987), enfd.
840 F.2d 309 (5th Cir. 1988); Southwire Co. v. NLRB, 820
F.2d 453 (D.C. Cir. 1987).)
H. Brian King
Brian King was discharged on October 2, 1989. Respond-
ent’s project manager Robert Maines responded yes to the
following regarding the discharge of Brian King:
So, then, you’re saying with regard to the reasons for
his termination, he was terminated for failure to stay
out of the lab, and that caused him to be insubordinate,
and that he was negligent on the job by sleeping and
failure to perform his given duties?
The affidavit of Brian King was received in evidence over
the objection of Respondent. King died before the hearing.1
In his affidavit King testified that he signed a union au-
thorization card on May 25, 1989. King testified that he
started wearing a union Local 891 cap to work around the
beginning of August 1989. Project Manager Maines and
Maintenance Supervisor Eckels testified that they were un-
aware of King’s union activities. However, both admitted
that they knew that King wore a union ball cap to work.
King admitted that he had received several warnings be-
fore his union activities including one around May 1, 1989,
when Respondent’s lawn tractor ran out of oil. King was
using the tractor at the time and he admittedly failed to
check the oil even though it was part of his job to check the
oil.
On August 28, 1989, according to King, he was told by
Lab Supervisor Kelvin Peters, that he was not supposed to
be in the lab. Subsequently, around September 26, King went
to the lab door. He testified that Lab Supervisor Peters came
up and asked him what he was doing in the lab. King told
Peters that he was looking for Bernard Bennett. Peters told
King that Bennett ‘‘wouldn’t have any business in the lab ei-
ther.’’ King left but he was called in by his immediate super-
visor, Bill Eckels. Kelvin Peters was with Eckels. Eckels told
King to leave and return on October 2, when he would be
told of the results of an investigation into ‘‘insubordination.’’
Laboratory Technician Chester Hicks also testified about
the day Brian King was suspended,
The morning of September the 26th—Brian King
was the utility man there at the plant, he cleaned, swept
and emptied the trash in the lab—and on that morning
of September the 26th, Brian King came to the lab
door, never did enter the lab, but he asked Tommy
Wash and myself, which was standing at the sink in the
lab, and that is right at the door. He asked Tommy and
myself had we seen Bernard Bennett. And as Tommy
and myself was telling him, no, we hadn’t seen Ber-
nard, Kelvin Peters came off the elevator. And he asked
Brian, ‘‘Brian, what are you doing in the lab?’’ Brian
said, ‘‘Kelvin, I wasn’t in the lab.’’ Then Tommy and
myself told Kelvin, ‘‘Kelvin, he wasn’t in the lab.’’
And at that point, Kelvin didn’t say anything else. He
went into his office, and Brian also left.
. . . .
Later that morning [Kelvin Peters] come back and
say, ‘‘Chester, was Brian in the lab?’’ I said, ‘‘No, Kel-
vin, he was not in the lab.’’
Tommy Wash testified about the incident between Brian
King and Kelvin Peters on the last day King worked:
[Kelvin Peters] told Brian that he had told him to
stay away from the lab, stay out of the lab, that he was
detaining the employees from doing their work. Brian
repeated that he wasn’t in the lab and said he was look-
ing for Bernard Bennett. And Kelvin told him that Ber-
nard Bennett didn’t work in the lab.
Wash testified that a few minutes after Brian King left,
[Peters] asked me how long was Brian in the lab,
and I told him that Brian wasn’t in the lab, he had just
approached the door looking for Bernard.
Laboratory Supervisor Kelvin Peters testified that he
caught King inside the laboratory on September 26, 1989.
When Peters confronted King, King told him that he was
looking for ‘‘Bernard.’’ According to Peters, neither Tommy
Wash nor Chester Hicks, who were in the lab when he found
King there on September 26, denied that King had been in
the lab.
Hicks testified that Brian King did cleaning chores in the
lab until September 14, 1989:
Up until September 14th when Kelvin came to James
Varnado and myself and told us that he no longer want-
ed Brian to come in the lab, that him and I would have
to do the cleaning, the mopping and other things that
he did in the lab.
Q. Did he say why?
A. Yeah. He said because some things had been
coming up missing.
James Varnado, who maintained a log of events, testified
in agreement with Hicks, that Brian King performed clean up
duties in the lab until September 14, 1989. On that day Kel-
vin Peters told Varnado and Chester Hicks that they would
have to start mopping, sweeping, and emptying the trash and
that he did not want Brian King in the lab anymore because
some things had come up missing.
According to Hicks, Brian King continued his duties of
cleaning the hallway immediately outside the laboratory,
after September 14, 1989, until his discharge.
Tommy Wash agreed with Hicks that Brian King had been
relieved of his duties in the lab. However, Wash recalled that
King had been told to stay out of the lab shortly after the
election. Wash testified that he was told that King would no
longer clean in the lab, around 2 weeks after the July 11,
1989 election.
Hicks testified that there is a sign on the lab door stating,
‘‘Authorized personnel only.’’ However, according to Hicks,
it is not unusual for other employees, both supervisors and
nonsupervisory employees, to come into the lab. Hicks testi-
fied that Peters did not ask any of those other employees to
leave the lab. On cross-examination, Hicks admitted that he
367MCCULLOUGH ENVIRONMENTAL SERVICES
was unaware that any of the employees he named as coming
into the lab, were ever there in the presence of Supervisor
Kelvin Peters. However, Tommy Wash corroborated Hick’s
testimony regarding other employees coming into the lab and
Wash testified that Kelvin Peters was present on occasion
when other employees were in the lab. Peters never asked
any of those other employees to leave the lab.
James Varnado agreed that other employees occasionally
came into the lab. Varnado testified that nonsupervisory em-
ployees Freddie Johnson and Jason Dominick came into the
lab once or twice a week since the election. According to
Varnado, Kelvin Peters was in the lab occasionally, when
Johnson and Dominick came into the lab. However, Varnado
testified that the nature of Jason Dominick’s job requires him
to come into the lab on occasion.
Tommy Wash testified that although Bernard Bennett did
not work in the lab, Bennett occasionally came into the lab
and talked with the lab employees. Wash recalled that Ben-
nett was in the lab occasionally at the same time Kelvin Pe-
ters was in the lab.
According to King, he was warned in 1986 and again, in
1987, by Kelvin Peters, about being in the lab without au-
thorization. Immediately before the NLRB election on July
11, 1989, King’s job duties included cleaning up the lab each
morning. King testified that the job in the lab took about 45
minutes each day. After the election, that job was performed
by lab technicians.
As shown above, the former field maintenance supervisor,
Earl Medlock, testified that after an employee meeting in
which Respondent’s president, Jerry Mitchell, spoke to em-
ployees on April 4, 1989, he was called into Bill Eckels’ of-
fice. Among other things the conversation between Eckels
and Medlock included Eckels commenting:
There are some people in maintenance, and you
know them, that are pro-union.’’ And I told Bill,
‘‘Well, I don’t know anybody,’’ because I didn’t know
anything about the letter or the people hadn’t been say-
ing anything. He said, ‘‘You know then. One of them
is Richard Harris.’’
. . . .
And [Eckels] talked about another fellow that
worked there at the administration building that was
more or less a janitor.
. . . .
Well, he said he was very rebellious and that he was
against everything that McCullough was standing for
and that if anybody had anything to do with the union
he would be one of them. And he was planning on
keeping his eye on Richard Harris and this fellow. For
the life of me, I just can’t think of his name right now.
Yeah, it was Brian King, that’s who it was.
William Eckels agreed that he and Earl Medlock did spec-
ulate that Brian King may have been involved with the
Union.
Respondent contends that King was excluded from the lab
because it was concerned with security. On July 12, 1989,
it was brought out during a staff meeting that the door locks
on Project Manager Maines’ automobile, were sealed with
super glue while the car was parked at Respondent’s plant.
Maintenance Supervisor Eckels testified that because of
the incident involving the super gluing of Maines’ car, it was
decided that Brian King would be prohibited from going into
the laboratory. Although Respondent did not, until after
King’s discharge, actually know that King was involved in
gluing the locks on Maines’ car, King was suspected. King
was the only employee whose work placed him in the area
where Maines’ car was parked.
Former employee Jeffrey Scott Harrison testified that King
admitted to him, that King had super glued Maines’ door
locks. However, Harrison testified that he said nothing to Re-
spondent about King’s admission about the super glue, until
after King had died, well after King was discharged by Re-
spondent.
Despite the prohibition against King, Respondent contin-
ued to have problems with King entering the lab. William
Eckels testified that he was instructed to talk with King re-
garding the prohibition. Eckels called King in and discussed
the matter with King on August 29, 1989. King told Eckels
that he would stay out of the lab.
Nevertheless, in late September, Eckels received a report
from Supervisor Kelvin Peters, that Brian King had been
found in the lab. According to Eckels, Brian King had no
business in the lab on that occasion in September 1989.
Eckels testified that there was no reason why King would be
looking for Bernard Bennett in the lab, as claimed by King.
Bennett did not have occasion to be in the lab during the
time King was there looking for him.
Maintenance Supervisor William Eckels testified:
Q. Now, was there also speculation that Brian King
might be involved in the union?
A. Yes, there was.
Q. And what was the speculation between you and
Mr. Medlock about Brian King?
A. Well, he used to go drinking with Richard [Har-
ris] and all that stuff, and also with Earl, and he was
kind of a—he was an anti-establishment kind of guy—
Brian was.
The evidence is in dispute as to whether Brian King was
actually in the laboratory on September 26, 1989.
However, there is no dispute that King was found at or
inside the laboratory door speaking to two of the employees
in the laboratory. King had been told on several occasions
going as far back as 1986 according to his own testimony,
that he was to stay out of the laboratory unless he had au-
thorization to be there.
In either July or September 1989, according to different
testimony, King was told to stay out of the lab altogether.
According to the testimony of Maintenance Supervisor
Eckels, whom I found to be a reliable witness, King was told
to stay out of the lab during July 1989. Subsequently, on Au-
gust 28, 1989, King was reprimanded as follows:
At approximately 9:05 a.m. on this date I observed
Brian King in the laboratory talking to Tommy Wash
as he was working on the BOD test. I asked Mr. King
if he had any business in the lab and he stated that he
was just talking to Mr. Wash. I informed him that this
was not ‘‘break time’’ for Mr. Wash and he is not to
bother people while they are working. This is the third
verbal warning I have given Mr. King about his unau-
thorized presence in the laboratory with regard to his
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lunch and breaktimes. I request formal disciplinary ac-
tion to be taken against Brian King for insubordination.
A note was attached to the reprimand initialed by Robert
Maines, stating:
Bill, please see Kelvin [Peters] for situation. See me
after investigation for appropriate action.
William Eckels wrote below Maines’ note:
Bob—I talked with Kelvin. He stated that he has in-
formed B. King 4 times in the past to stay out of the
lab.
I informed B. King to stay out of the lab unless in-
structed to do so.
There is no contention that King was excluded from the
lab because of union or protected activities. This is not a
case where an employer allegedly sought to keep King away
because of fear of organizing activities.
In fact there was no dispute regarding the reason why Re-
spondent banned King from the lab. Respondent claimed that
King was banned because of a concern with security. King
was suspected of the super glueing of Project Manager
Maines’ car. Moreover, there was concern that someone may
have been taking a number of items which were missing
from the laboratory.
Respondent’s contention as to why King was expelled
from the lab was, as shown above, supported by the testi-
mony of Chester Hicks who was identified by the union
business agent as an employee organizer on the day of the
election:
Up until September 14th when Kelvin came to James
Varnado and myself and told us that he no longer want-
ed Brian to come in the lab, that him and I would have
to do the cleaning, the mopping and other things that
he did in the lab.
Q. Did he say why?
A. Yeah. He said because some things had been
coming up missing.
In view of the entire record and especially the evidence
mentioned above, I find that Respondent excluded Brian
King from its laboratory because of business related reasons.
In view of my finding, I find nothing wrong in Respond-
ent permitting other nonlaboratory employees to enter the
laboratory during the time when it was excluding King.
There was no showing that Respondent discriminated against
King in that regard because of protected activities of King
or other employees.
Despite my determination that Respondent did nothing il-
legal in banning King from the laboratory, there remains a
question of Respondent’s justification in discharging Brian
King.
There was evidence that Respondent suspected that King
may have been a union supporter. According to the testi-
mony of Earl Medlock which was corroborated by Super-
visor William Eckels, King was suspected because of his re-
bellious attitude. Additionally, King, like several other em-
ployees, wore a union cap to work.
Despite the evidence that Respondent suspected that King
supported the Union, there is little else which shows that Re-
spondent was motivated to discharge King because of the
Union. I must also consider the evidence which shows that
Brian King continually disobeyed Respondent’s instructions
to stay out of the lab without authorization.
I am not persuaded that evidence which conflicts with the
testimony of Laboratory Supervisor Peters, and shows that
King was not actually inside the laboratory on September 26,
is actually critical. Without regard to whether King was actu-
ally inside the laboratory, the evidence is uncontested that
King was at the laboratory door on that occasion questioning
two laboratory employees, who were at work, about another
employee that did not work in the laboratory.
As shown above, the September 26 incident was very
similar to the occasion on August 28, 1989, when Laboratory
Supervisor Peters reprimanded King because he was in the
lab talking with lab employee Tommy Wash. According to
the August 28 reprimand, that was the fourth occasion of Pe-
ters warning King to stay out of the lab.
Brian King admitted that he was warned about being in
the lab without authorization on three occasions before 1989.
He also admitted that he did the lab janitorial work before
the election but, after the election, that work was done by
the laboratory technicians. That testimony agrees with Re-
spondent’s evidence that King was directed to stay out of the
lab after he was suspected of gluing Maines’ car on July 12.
On August 28, 1989, Brian King was again warned about
being in the laboratory without permission. Finally, on Sep-
tember 26, King was again found in or at, the laboratory
talking with two laboratory technicians.
Unlike the situation involving Richard Harris, there is no
showing that King was treated in a disparate manner. Instead
of permitting King to visit the lab without authorization as
was the case in Harris taking lunch at Miss B’s, Respondent
consistently warned King about that rules’ infraction.
On August 28, when King received a written warning, the
NLRB election had been over for a month and a half. If, as
argued by General Counsel, Respondent was motivated by
King’s union involvement, it was so motivated on and before
August 28. Nevertheless, King was not discharged when he
was found in the laboratory on that occasion.
An employer is not required to tolerate rules infractions
from an employee that supports the union, to any greater ex-
tent than it tolerates employees that do not support the union.
Here, there was no showing that Brian King was subjected
to unusual measures. I find that the evidence shows that
Brian King would have been discharged in the absence of his
union or suspected union activities. Therefore, I find that the
record does not support a finding that he was discharged in
violation of Section 8(a)(1) and (3) of the Act. (Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983); Delta Gas, Inc.,
283 NLRB 391 (1987), enfd. 840 F.2d 309 (5th Cir. 1988);
Southwire Co. v. NLRB, 820 F.2d 453 (D.C. Cir. 1987); Al-
coholics Anonymous World Services, 288 NLRB 582 (1988);
Lewis Grocer Co., 282 NLRB 166 (1986); Williamson Piggly
Wiggly, 280 NLRB 1160 (1986); State Bank of India, 283
NLRB 266 (1987); Marico Enterprises, 283 NLRB 726
(1987); Evans St. Clair, Inc., 278 NLRB 459 (1986)); Sioux
Quality Packers v. NLRB, 581 F.2d 153 (8th Cir. 1978);
Rickel Home Centers, 262 NLRB 731 (1982); Florida Steel
369MCCULLOUGH ENVIRONMENTAL SERVICES
Corp. v. NLRB, 529 F.2d 1225 (5th Cir. 1976); Chemvet
Laboratories v. NLRB, 497 F.2d 445 (8th Cir. 1974).
III.
Section 8(a)(1), (3), and (4)
James Varnado
It is alleged that Respondent reprimanded Varnado in vio-
lation of Section 8(a)(1), (3), and (4) of the Act. Section
8(a)(4) prohibits discriminatory treatment on the grounds of
the filing of charges or the giving of testimony under the
Act.
Varnado was the subject of earlier charges alleging that he
was disciplined because of union activities.
On April 23, 1990, James Varnado testified in the instant
hearing.
James Varnado is employed by Respondent as a laboratory
technician. Before May 31, 1990, Varnado’s duties included
routine analysis of samples. Until February 1990, Tommy
Wash had the responsibility of testing ‘‘field’’ samples and
Varnado was responsible for ‘‘laboratory’’ samples. From
February until May 1990, Wash was replaced by David
Canizaro.
Occasionally, according to Varnado, he would assist Wash
or, subsequently, Canizaro, pursuant to their request for him
to conduct a specified test on a field sample.
When Canizaro left that job, Laboratory Supervisor Kelvin
Peters told Varnado that he and Chester Hicks, would have
to help out with field samples. Varnado testified that he
learned the job as he went along.
On May 31, 1990, Kelvin Peters issued a written rep-
rimand to Varnado:
On Thursday, May 24, 1990 you reported to me that
you had not performed an Ammonia Nitrogen analysis
on the Gulf States Canners composite sample collected
the week before. You stated that you ‘‘did not know’’
you were supposed to do the test on this sample. The
sample had been discarded. After investigating your
claim I found your explanation to be unfounded as you
are documented as having run this same test on the
same kind of sample.
The required testing was not performed due to your
negligence. You have been previously warned for fail-
ure to perform required testing. For this reason you are
officially reprimanded. Your are to take immediate cor-
rective action to prevent any future occurrences of this
nature. Due to the severity of failure to perform re-
quired testing, another occurrence will result in more
severe disciplinary action.
Signing below acknowledges your receipt of this
document.
Varnado testified that the above reprimand resulted from
a directive he received from Peters on May 18, to run
‘‘BODs and total suspended solids’’ on a Gulf States Can-
ners sample. Varnado ran the specified tests. However, the
next week Peters came to him with another Gulf States Can-
ners sample and told him to run ‘‘BOD, suspended solids
and ammonia nitrogen.’’ After discussing his concern with
fellow employee Chester Hicks, Varnado went to Peters and
asked Peters if Peters had also intended for him to make
those three tests, including ammonia nitrogen, on the May 18
sample.
Chester Hicks corroborated Varnado’s testimony. Hicks
testified that after Peters brought the sample to Varnado,
Varnado asked him if he thought that Peters had intended for
him to run three tests including ammonia nitrogen, when Pe-
ters had brought Varnado a Gulf States Canners sample on
May 18. At that time, Varnado had not been trained by Pe-
ters, on how to conduct the Gulf States Canners tests.
Peters told Varnado that he should have conducted all
three tests, including ammonia nitrogen, on the May 18 sam-
ple. Consequently, Varnado was given the above reprimand
because he had failed to conduct the ammonia nitrogen test.
When Peters gave Varnado the reprimand, Varnado replied
that he had not been told to run the ammonia nitrogen test
on the May 18 sample. Peters testified that despite Varnado’s
contention to the contrary, Varnado had previously conducted
tests on a Gulf States Canners sample during November
1989.
Kelvin Peters admitted on cross-examination, that the sam-
ple which Varnado ran in November, was conducted pursu-
ant to specific directions from either Peters or Tommy Wash.
At that time Varnado was not primarily responsible for run-
ning field samples. Before May 1990, Varnado’s duties did
not include an understanding of which tests were required on
each of numerous samples from different offsite facilities.
Peters admitted that the permits for the several different fa-
cilities covered by Respondent, required different tests for
each respective facility. The number of facilities varied from
six to seven and, until he was assigned to help with the field
samples, Varnado was not expected to know which tests
were required for each specific facility.
On May 18, Varnado had been told only that he and Ches-
ter Hicks, would have to help out with the field. Varnado
had not, at that time, been to the Gulf States Canners site
and no one had explained what tests were required at Gulf
States Canners.
Tommy Wash testified in corroboration with Varnado.
Wash was formerly the field operator. Wash had the respon-
sibility of testing samples from seven different field facilities.
Wash testified that each of those seven facilities, required its
own particular tests. Each facility was required to possess its
own State of Mississippi permit. The particular permit speci-
fied which tests were required for that particular facility.
Wash was supplied with copies of the permits by his super-
visor.
Kelvin Peters was Wash’s supervisor while Wash was the
field operator. According to Wash, his training was con-
ducted on the job. He was trained by Supervisor Kelvin Pe-
ters.
Wash agreed with Varnado, that occasionally he would ask
a laboratory technician, either Varnado or Chester Hicks, to
help him by conducting tests. Wash recalled that he never
asked a laboratory technician to run an entire series (i.e., all
the tests required by the permit on a particular facility). In-
stead Wash asked, on those occasions when he needed assist-
ance, for the laboratory technician to run a test or tests,
which Wash specified.
Varnado received what Respondent characterized as a
written counseling report, on March 8, 1990. Both Varnado
and his coworker, Chester Hicks, were awarded counseling
reports on that occasion allegedly for failing to conduct re-
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quired tests during February 1990, on samples from A.E.
Staley. Varnado testified that he and his coworker, Chester
Hicks, had discussed the Staley sample at issue, and had de-
cided that between them, they had run all the Staley tests on
the February sample. According to Varnado, Peters brought
the March 8 counseling report and asked him and Hicks to
read it. Afterward Peters asked if they had questions.
Varnado did not ask any questions. However, Varnado was
confused by Peters’ comments that the report would be
placed in his file. On the next day Varnado asked Peters for
a copy of the report. Peters responded,
James, I told you yesterday—but in a louder tone of
voice and pointing his finger—James, I told you yester-
day that it was a reprimand—I mean, a memo and not
a reprimand.
He went on to say that I was trying to manipulate
him, and I told him that I wasn’t. And he came from
one side of the lab to where I was pointing his finger,
and I spoke and said, Kelvin, I am not afraid of you.
And he said, Oh, are you into that now.
And I said, No, I am not.
And he went on to say that he wasn’t going to tol-
erate me talking to him that way, and he left. And came
back and said that he had put something in my file con-
cerning the little talk he just had—the talk he had with
me here—the talk he had just finished with me.
Varnado went to Project Manager Maines and asked to see
what Peters had placed in his file. Varnado learned that Pe-
ters had written and placed in Varnado’s file, the following
memo dated March 9, 1990:
On this date at approximately, 9:30 am James
Varnado confronted with a belligerent tone stating ‘‘am
I going to receive a copy of the thing we got yesterday,
the memo or warning or reprimand or whatever it
was.’’ My response was that I had specifically told him
that he was not being reprimanded in the memo. He
stated that I had not told him this. I again responded
by telling him that they were not being reprimanded
while both Chester Hicks and Varnado were at the front
sink of the laboratory reading the memo. James than
stated that he didn’t hear that even though we were all
standing with two feet of each other when I told them
the memo was not a reprimand, but was to let them
know of the importance of doing the work required. He
then James then went on to make statements of how he
wasn’t afraid of me and that I was trying to argue with
him. I then gave James Varnado a verbal warning and
told him that it was a verbal warning about the manner
in which he conducted himself with his supervisor. He
had tried to twist and manipulate what I had told them
into something untrue and that would not be tolerated.
I asked Varnado if he understood what I had told him.
He did not respond. I asked him again if he had under-
stood what I had told him and demanded response. He
then said he understood what I had told him.
As shown above, Respondent’s employees voted in a
Board-conducted election at its facility in Jackson, Mis-
sissippi, on July 11, 1989. After the election, several employ-
ees met with news people in Respondent’s conference room,
regarding the Union’s victory in that election. Several of Re-
spondent’s supervisors observed particular employees that at-
tended that news meeting. Chester Hicks, Tommy Wash, and
James Varnado, testified that in addition to Union Agent
Kenneth Paige, there were several employees at that news
interview at Respondent’s facility, including James Varnado.
Varnado testified that he wore a union cap to work, placed
the union cap in the back window of his car, and placed a
union bumper sticker on his car.
James Varnado was called by General Counsel and testi-
fied in these proceedings on April 23, 1990, and again on
November 28, 1990.
On August 18, 1989, the Union filed a charge with the
NLRB (Case 15–CA–10961) alleging that Respondent took
discriminatory action against Varnado. On September 1, and
on November 1, 1989, the Union amended its charge in Case
15–CA–10961, again alleging that Respondent discriminated
against Varnado among others.
According to Laboratory Supervisor Kelvin Peters, Peters
reprimanded Varnado on March 9, 1990, because,
James came to me and asked if he was going to re-
ceive a copy (of the memo I issued the previous day
indicating that he and Chester Hicks had failed to run
required test), . . . in a belligerent tone.
Then I reminded him I had specifically told him he
was not being reprimanded and that was a memo. And
he said he didn’t hear that even though we were stand-
ing—when we had discussed that, we were all standing
within arms length of each other.
[He] said he wasn’t afraid of me and that I was try-
ing to argue with him.
As to the May 31, 1990 reprimand which Peters awarded
Varnado for failure to run an ammonia nitrogen analysis on
a Gulf States Canners sample, the evidence is uncontested
that Peters did not specify to Varnado that he run ammonia
nitrogen. According to Varnado’s testimony, Peters brought
him that particular Gulf States Canners sample and told him
to run ‘‘BODs and total suspended solids.’’ Peters testified
that Varnado should have known to run the ammonia nitro-
gen analysis in addition to the BOD and suspended solids,
because his records indicated that Varnado had previously
run a Gulf States Canners sample back in November 1989.
As shown above, during November 1989, Varnado occa-
sionally ran field samples pursuant to the specific directives
of Tommy Wash.
Respondent offered a number of reprimands which Peters
issued to employees before March 1990. Those reprimands
included a January 8, 1990 reprimand to Tommy Wash for
excessive nonwork related talking over a period of 1 hour
and 15 minutes; a September 18, 1989 reprimand to Charles
Johnson because Johnson intimidated Peters on two occa-
sions by blocking Peters’ path, forcing Peters to walk around
Johnson; an October 19, 1989 reprimand to Bernard Bennett
because Bennett shirked his responsibility by refusing to sign
for a UPS package; a September 4, 1990 verbal warning to
Chester Hicks for failure to perform a final effluent D.O.
test; a June 19, 1990 reprimand to Donnie Dixon because
Dixon was disrespectful to Peters and because Dixon dis-
tracted technicians from their duties; and a March 2, 1990
371MCCULLOUGH ENVIRONMENTAL SERVICES
reprimand to Donnie Dixon for failure to properly commu-
nicate to Peters.
Only the September 4, 1990 reprimand to Chester Hicks,
is similar to either of the Varnado reprimands which alleg-
edly constitute violative action. That reprimand includes the
following comments, among others:
Hicks admitted that he thought of getting the D.O.
[test], but did not, assuming that it was not necessary
on holidays since they are worked much like the week-
end work. Hicks negligence could have easily been
avoided had he followed my instructions to contact my-
self or the manager if he was unsure of his responsibil-
ities. Hicks told me he understood the reason for the
warning and he would make an effort to improve his
work in this area. Hicks was told that this summation
of the verbal warning would be placed in his personnel
file and he could review it with the manager if he de-
sired.
In both instances involving Varnado, there appears to be
a question of merit. As to the March 9, 1990 reprimand, Pe-
ters’ testimony shows that he reprimanded Varnado because
Varnado asked for a copy of a personnel file memo, in a bel-
ligerent tone; and because Varnado told Peters that he did
not know, or did not hear Peters say, that memo was not a
reprimand.
As to the May 31, 1990 memo, Peters does not contest
that Varnado was not told to run the ammonia nitrogen tests.
However, according to Peters, Varnado, who was untrained
on field samples, should have know to run the ammonia ni-
trogen test because he had run a Gulf States Canners sample
in November 1989.
As shown above, Peters previously engaged in conduct
violative of Section 8(a)(1) by chastising Chester Hicks be-
cause he felt Hicks was untruthful regarding the role Hicks
played for the Union.
Respondent was aware of Varnado’s support for the Union
from, at least, July 11, 1989, and it was aware of the charges
which had been filed alleging that it had discriminated
against Varnado.
The question I must decide is whether General Counsel
has proved a prima facie case by showing that the rep-
rimands issued to Varnado constitute violative conduct.
I realize that it is not my job to determine merit in regard
to an employer’s reprimand of an employee. However, I
must determine merit to the extent that question relates to
discriminatory conduct. Here merit, when used to question
whether the reprimands issued Varnado, raise to the standard
of previously issued reprimands, is a necessary issue. In that
regard an examination of the reprimands previously issued
by Peters, failed to show that he previously disciplined any-
one because they questioned whether a writing filed in their
personnel folder constituted a reprimand and Peters had not
previously reprimanded anyone because they failed to con-
duct a test under circumstances similar to those present on
May 31, 1990, regarding Varnado.
Of all the reprimands issued by Peters, the only previously
issued reprimand of a similar nature was the reprimand
issued to Chester Hicks on September 4, 1990. That rep-
rimand to Hicks, involved a test which Hicks admitted he
should have run. There was no dispute but that Hicks should
have, at least, phoned Peters to see if the test should be run
under the holiday schedule. In the instant situation, Varnado
claimed that he did not know that he should have conducted
the ammonia nitrogen test.
Peters demonstrated that he expected Varnado to under-
stand field testing on the basis of a single test Varnado alleg-
edly conducted on a Gulf States Canners sample during No-
vember 1989.
A comparison of the other reprimands issued by Peters and
the full record, calls into question whether Varnado’s actions
were being judged by Peters in the same manner and with
a similar standard, as was applied by Peters to other employ-
ees. The record illustrated that such was not the case. No
other laboratory employee was held to such a high standard
as was Varnado during March and May 1990.
I find that the record shows that Respondent was aware of
Varnado’s union activities; was aware of the charges pre-
viously filed alleging discrimination against Varnado; and
was aware of his April testimony in these proceedings, when
it reprimanded him on May 31, 1990. The record showed
that both the March and May reprimands involved standards
which Respondent had not applied to any other employee.
On that basis I find that General Counsel proved a prima
facie case of discrimination.
Respondent did not show that Varnado would have been
disciplined in March or May 1990, absent his protected ac-
tivities. (Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983); Delta Gas, 283 NLRB 391 (1987), enfd. 840 F.2d
309 (5th Cir. 1988); Southwire Co. v. NLRB, 820 F.2d 453
(D.C. Cir. 1987).)
CONCLUSIONS OF LAW
1. McCullough Environmental Services, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Teamsters Local Union No. 891, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. Respondent, by interrogating its employees about their
union activities; by creating the impression of surveillance of
its employees’ union activities; by threatening its employees
with reduction in work hours if they selected the Union as
their bargaining representative; by threatening that it would
fire other employees because of their union activities; by
threatening its employees with more onerous working condi-
tions if they selected the Union; by threatening its employees
with unspecified reprisals because of their union activities;
and by promulgating and enforcing a no-solicitation rule
against its employees’ union activities; has violated Section
8(a)(1) of the Act.
4. Respondent, by implementing a rule requiring the dis-
charge of employees that refused to sign written reprimands;
by reprimanding employee Bernard Bennett because he solic-
ited for the Union; and by discharging employees Richard
Harris, Lonnie Collins, and L. C. Spann, because of its em-
ployees’ activities on behalf of Teamsters Local Union No.
891, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO, has violated Section 8(a)(1) and (3) of the Act.
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
3 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.’’
5. Respondent, by reprimanding its employee James
Varnado because of its employees’ union activities, because
of charges filed alleging discriminatory action against
Varnado and because Varnado testified in NLRB pro-
ceedings, has engaged in conduct violative of Section
8(a)(1), (3), and (4) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has illegally reprimanded
and discharged its employees in violation of sections of the
Act, I shall order Respondent to offer Richard Harris, Lonnie
Collins, and L. C. Spann, immediate and full reinstatement
to their former positions, or, if those positions no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges. I further
order Respondent to make Harris, Collins, and Spann whole
for any loss of earnings they suffered as a result of the dis-
crimination against them and that Respondent remove from
its records any reference to the unlawful reprimands against
its employees Bernard Bennett and James Varnado, and dis-
charges of Harris, Collins, and Spann, and notify Bennett,
Varnado, Harris, Collins, and Spann in writing that Respond-
ent’s unlawful conduct will not be used as a basis for further
personnel action. Backpay shall be computed as described in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
described in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, McCullough Environmental Services,
Inc., Jackson, Mississippi, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union activities;
creating the impression of surveillance of its employees’
union activities; threatening its employees with reductions of
work hours, with discharging other employees, with more
onerous working conditions, and with unspecified reprisals if
its employees selected Teamsters Local Union No. 891, af-
filiated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO as their collective-bargaining representative; and pro-
mulgating and enforcing a rule prohibiting its employees to
solicit on behalf of the Union.
(b) Reprimanding or discharging its employees because of
their protected activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Richard Harris, Lonnie Collins, and L. C. Spann
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make Harris, Collins,
and Spann, whole for any loss of earnings plus interest, they
suffered by reason of its illegal actions.
(b) Rescind its discharge, and warnings issued to Richard
Harris, Lonnie Collins, L. C. Spann, Bernard Bennett, and
James Varnado, and remove from its files any reference to
its warnings and discharge of Harris, Collins, Spann, Ben-
nett, and Varnado, and notify each of them in writing that
this has been done and that evidence of its unlawful actions
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, and timecards, personnel
records, 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 Jackson, Mississippi, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 15,
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 Respondent has
taken to comply.