Schnadig Corporation

National Labor Relations Board - Board Decisions

Oct 19, 1982

265 N.L.R.B. 147 (N.L.R.B. 1982)

SCHNADIG CORPORATION
Schnadig Corporation and Upholsterers' Internation-
al Union of North America, AFL-CIO and
Susan Brooks and Thomas Muensterman. Cases
25-CA-12579, 25-CA-12606, 25-CA-13036,
25-CA-13092, 25-CA-13165-2, 25-RC-7503,
25-CA-13165, and 25-CA-13165-3
October 19, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND ZIMMERMAN
On September 20, 1981, Administrative Law
Judge Marion C. Ladwig issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge. We also adopt the Administrative Law
Judge's remedy, but we will modify two aspects of
it.
1. The Administrative Law Judge found that Re-
spondent's duty to bargain arose on July 31, 1980,
and thus it violated Section 8(a)(5) and (1) of the
Act when it made unilateral changes in working
conditions after that date. These changes affected
job bidding, the seniority and layoff system, recall
policy, absentee policy, and the wage structure. As
a remedy, he recommended that Respondent be or-
dered to cease and desist from making those unilat-
eral changes, and, upon request of the Union, to
revert to the working conditions as they existed
prior to the changes.
I Respondent contends that certain of the Administrative Law Judge's
actions, such as questioning witnesses, and his credibility resolutions stem
from bias. We find no merit in this contention. There is no basis for find-
ing that bias existed merely because the Administrative Law Judge re-
solved important factual conflicts in favor of the General Counsel's wit-
nesses. As the Supreme Court stated in N.LR.B. v. Pittsburgh Steamship
Company, 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."
Moreover, it is the Board's established policy not to overrule an adminis-
trative law judge's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the credi-
bility resolutions are incorrect. Standard Dry Wall Product Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings or rul-
ings.
Chairman Van de Water and Member Hunter find it unnecessary to
rely on the Administrative Law Judge's citation of TRW Bearing Divi-
sion, 257 NLRB 442 (1981), in sec. II,B,7, par. 4, of his Decision.
2 The General Counsel did not file an exception to the Administrative
Law Judge's recommendation in sec. II,B,2, par. 1, of his Decision, that
the allegation that Supervisor David Williams told an employee not to
solicit on behalf of the Union during "working hours," be dismissed.
265 NLRB No. 20
We adopt the Administrative Law Judge's
remedy for these violations with one modification.
Respondent's new wage structure became effective
on January 1, 1981, and it is very likely that Re-
spondent has hired some employees since then.
Presumably, those employees are being compensat-
ed pursuant to the new wage structure.3 In order
to remedy fully Respondent's unfair labor practice,
we will order Respondent to make whole any em-
ployee who has received wages lower than those
he would have received if Respondent had not
changed the wage structure.
2. The Administrative Law Judge also found
that Respondent violated Section 8(a)(5) and (1)
when it laid off a total of 47 employees between
December 5, 1980, and March 12, 1981, without af-
fording the Union an opportunity to bargain con-
cerning layoffs. As a remedy, he recommended
that Respondent offer reinstatement to the laid-off
employees, dismissing, if necessary, persons hired
after December 5, and place the balance of the
laid-off employees on a preferential hiring list in
accordance with the seniority system in effect
before Respondent unilaterally changed that system
on October 31, 1980. He did not, however, recom-
mend that laid-off employees be reimbursed with
backpay, reasoning that this was not appropriate in
light of the fact that Respondent had been incur-
ring large financial losses. The Administrative Law
Judge acknowledged that counsel for the General
Counsel was not seeking a backpay remedy for the
laid-off employees.
We will modify this aspect of the Administrative
Law Judge's recommended remedy so that em-
ployees who were unlawfully laid off are eligible
for backpay. Initially, we emphasize that whether
counsel for the General Counsel seeks a backpay
remedy is immaterial since we have full authority
over the remedial aspects of our decisions. See,
e.g., Loray Corporation, 184 NLRB 577 (1970);
N.LR.B. v. Duncan Foundry & Machine Workers,
Inc., 435 F.2d 612 (7th Cir. 1979); N.LR.B. v.
WTVJ, Inc., 268 F.2d 346 (5th Cir. 1959). In find-
ing that backpay may be due to certain laid-off em-
ployees, the issue is not merely whether Respond-
ent was justified in laying off the precise number of
employees that it did. (Although, as noted by the
Administrative Law Judge, Respondent did hire
new employees during the period it was effectuat-
ing the layoffs.) The more critical point is that Re-
spondent's unlawful conduct directly affected who
would be selected for layoff. If Respondent had ad-
hered to the seniority system in effect prior to Oc-
s Employees working at the time of the unilateral change were not af-
fected.
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tober 31, 1980, different employees might have
been laid off, while some of the laid-off employees
might have been retained. We can discern no
reason why we should not afford a remedy to any
employees victimized by Respondent's unlawful
conduct. Accordingly, Respondent's obligation to
reinstate laid-off employees and its backpay liability
should be determined at a compliance proceeding.
Wellman Industries, Inc., 222 NLRB 204 (1976),
enfd. in an unpublished opinion 94 LRRM 2947
(D.C. Cir. 1977).
Our dissenting colleague suggests breaking new
and dangerous ground by making a respondent's
ability to pay a factor in determining what, if any,
remedy to impose for violations of the Act. Aside
from opening a pandora's box of litigation, we find
no support in the Act for the proposition that a re-
medial order should be tempered based on a
wrongdoer's financial situation. As we have stated,
employees have suffered financial loss as a result of
Respondent's refusal to honor its obligations under
the Act-obligations the Chairman acknowledges
and joins in finding. We decline to establish a
policy that places the financial burden on innocent
victims rather than on a violator of the Act be-
cause of implications that a remedy may have for
Respondent's fiscal well-being.
If Respondent is, in fact, unable to meet its back-
pay liabilities currently, that is a matter to be ad-
dressed in compliance. Although the Board seldom
has occasion to comment upon it, arrangements fre-
quently are made to provide a schedule of pay-
ments for respondents that are able to demonstrate
an inability to shoulder their backpay liabilities. We
continue to believe that a compliance proceeding is
the appropriate forum for consideration of such
concerns.
We will issue an Order, in lieu of that recom-
mended by the Administrative Law Judge, that in-
corporates these two modifications.4 Backpay shall
be computed in accordance with F. W Woolworth
Company, 90 NLRB 289 (1950), with interest as
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977). 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Schnadig Corporation, Henderson, Kentucky, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
' The Administrative Law Judge inadvertently omitted from the cease-
and-desist portion of his recommended Order a paragraph ordering Re-
spondent to refrain from refusing to bargain with the Union. The new
Order also corrects this and other minor errors.
8 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
(a) Discharging, laying off, refusing to recall, or
otherwise discriminating against any employee for
supporting Upholsterers' International Union of
North America, AFL-CIO, or any other union.
(b) Denying employees wage increases because
of their union activities.
(c) Giving any suspension or written warning, or
placing a disciplinary warning in any employee's
file, because of the employee's union activity.
(d) Threatening to close the plant in reprisal if
the employees vote for union representation.
(e) Coercively interrogating employees about
union support or union activities.
(f) Creating the impression that employees' union
activities are under surveillance.
(g) Promising any employee a promotion for op-
posing a union.
(h) Soliciting grievances from employees and ex-
plicitly or implicitly promising to remedy or adjust
them in order to induce employees to oppose a
union.
(i) Maintaining any rule prohibiting union solici-
tation during lunch, break periods, and other non-
working time.
j) Maintaining any rule prohibiting the distribu-
tion of union literature on company premises in
nonworking areas.
(k) Refusing to recognize and bargain collective-
ly regarding wages, hours, and other terms and
conditions of employment with Upholsterers' Inter-
national Union of North America, AFL-CIO, as
the exclusive representative of the employees in the
following appropriate unit:
All production and maintenance employees of
the Employer at its Henderson, Kentucky fa-
cility, including all plant clerical employees,
the shipping clerk, the stores clerk, the
janitor/sweeper, the truckdriver and the lead
person in the finishing department; but exclud-
ing all engineering department employees, the
engineering clerk, the sample shop trainee, the
pattern maker, the jigs/fixtures maker, the tool
grinder, all office clerical employees, the
typist/receptionist, the engineering clerk, the
inventory control clerk, the payroll clerk, the
production control clerk, the draftsman, the
general clerk-senior, the draftsman routings, all
inspectors, all professional employees and all
supervisors as defined in the Act.
(1) Unilaterally changing job bidding, seniority,
the absentee and attendance program, or other
working conditions, without bargaining with the
Union as the collective-bargaining representative of
the employees in the above-described unit.
148
SCHNADIG CORPORATION
(m) Unilaterally changing the layoff rules and
laying off employees without bargaining with the
Union as the collective-bargaining representative of
the employees in the above-described unit.
(n) Unilaterally changing the wage scale, grades,
and ranges without bargaining with the Union as
the collective-bargaining representative of the em-
ployees in the above-described unit.
(o) Unilaterally conditioning the recall of laid-off
employees upon their acceptance of illegal changes
in wages or working conditions.
(p) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
Union as the exclusive representative of the em-
ployees in the above-described appropriate unit,
and, if an understanding is reached, embody such
understanding in a signed contract.
(b) Upon request of the Union, restore the job-
bidding procedures, seniority system, and the ab-
sentee and attendance program which were in
effect before October 31, 1980, and the wage scale,
grades, and ranges which were in effect before Jan-
uary 1, 1981.
(c) Make whole, with interest, employees who
have suffered monetary losses by reason of the uni-
lateral institution of a new wage structure on Janu-
ary 1, 1981, in the manner set forth herein.
(d) Offer William Adams, Jr., Susan Brooks,
Richard Conder, Thomas Muensterman, and Mary
Stevens 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
previously enjoyed, and make them whole for any
loss of earnings and other benefits they may have
suffered as a result of the discrimination against
them, in the manner set forth in the remedy section
of the Administrative Law Judge's Decision.
(e) Recall all other bargaining unit employees
laid off on or after December 5, 1980, at their
former rates of pay, dismissing, if necessary, per-
sons hired after that date. If sufficient jobs are not
available, place the remaining laid-off employees
on a preferential hiring list doing so, at the request
of the Union, in accordance with the seniority
system in effect before October 31, 1980, and offer
them employment before any other persons are
hired.
(f) Make whole, with interest, any employee for
any loss of pay or other benefits he may have suf-
fered by reason of the changes in the seniority
system instituted on October 31, 1980, in the
manner set forth herein.
(g) Expunge from its files any reference to disci-
plinary warnings and suspensions given William
Adams, Jr., and Richard Conder in November and
December 1980.
(h) Expunge from its files any reference to the
discharge of Thomas Muensterman, on November
20, 1980, and to the discharge of William Adams,
Jr., on March 2, 1980, and notify them in writing
that this has been done and that evidence of their
unlawful discharges will not be used as a basis for
future personnel actions against them.
(i) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(j) Post at its plant in Henderson, Kentucky, and
mail to all employees laid off on and since Decem-
ber 5, 1980, copies of the attached notice marked
"Appendix." 6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 25,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by
any other material.
(k) Notify the Regional Director for Region 25,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IT IS ALSO ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
specifically found.
IT IS FURTHER ORDERED that the election con-
ducted on October 1, 1980, in Case 25-RC-7503 be
set aside and that the petition be dismissed.
CHAIRMAN VAN DE WATER, dissenting in part:
I dissent because I do not think that the Board
should expand upon the Administrative Law
Judge's remedy regarding the unlawful change in
the wage structure and the unlawful layoffs.
6 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record indicates that Respondent has been
incurring large financial losses in the operation of
its plant. In order to stanch this hemorrhaging, Re-
spondent adopted a new wage structure, which
provided for lower wages to be paid to employees
hired after January 1, 1981, and was forced to lay
off over 40 employees. My colleagues affirm the
Administrative Law Judge's finding that Respond-
ent violated Section 8(a)(5) and (1) when it did not
bargain with the Union regarding the change in the
wage structure and the layoffs. I agree that these
are violations. As a remedy, the Administrative
Law Judge recommended that Respondent be or-
dered to cease and desist from failing to bargain
over changes in the wage structure and layoffs. He
also recommended that the laid-off employees be
reinstated if possible, and, if not, that their names
be placed on a preferential hiring list so that they
can be reinstated as soon as that is feasible. Counsel
for the General Counsel stated at the hearing that
she was not seeking an award of backpay for the
laid-off employees, nor did she file exceptions to
the Administrative Law Judge's recommended
remedy.
I am in total agreement with my colleagues that
we have full authority over remedying unfair labor
practices, irrespective of the position of the Gener-
al Counsel. This principle, however, is beside the
point. The real issue here is how sweeping our re-
medial order ought to be." Respondent claims that
it is in dire financial straits. The record reflects
this. The General Counsel concurs. The Adminis-
trative Law Judge tailored his remedy with Re-
spondent's precarious financial situation in mind. I
therefore think that my colleagues are being pre-
cipitous and unrealistic in saddling Respondent
with a potentially very large backpay liability. We
can be and should be more flexible in fashioning a
remedy. "In devising all our affirmative orders ...
we bear in mind that the remedy should be appro-
priate to the particular situation requiring redress,
and should be tempered by practical consider-
ations." Cities Service Oil Company, 158 NLRB
1204, 1207 (1966). It would be a tragedy, particu-
larly for Respondent's employees, if the Board's
backpay award impaired Respondent's ability to
operate.
7 Contrary to the majority I am not relying on Respondent's ability to
pay as a factor in determining the remedy. Rather it is a recognition that
economic circumstances would have required a reduction in force wheth-
er or not there was bargaining. The majority's remedy thus becomes pu-
nitive while it goes without saying that our statute is remedial in purpose.
Making Respondent pay backpay when admittedly economic circum-
stances, not union animus, motivated the reductions is a clear application
of a punitive remedy and results in an inflexible application of our usual
rules for a technical violation of the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge, lay off, refuse to
recall, or otherwise discriminate against any of
you for supporting Upholsterers' International
Union of North America, AFL-CIO, or any
other union.
WE WILL NOT deny any of you a wage in-
crease because of your union activity.
WE WILL NOT suspend or give a written
warning to you or place any disciplinary
warning memo in your file because of your
union activity.
WE WILL NOT threaten to close the plant in
reprisal if you vote for union representation.
WE WILL NOT coercively interrogate you
about union support or activities.
WE WILL NOT give you the impression that
your union activities are under surveillance.
WE WILL NOT promise to promote you if
you oppose a union.
WE WILL NOT solicit your grievances and
promise to remedy or adjust them to induce
you to oppose a union.
WE WILL NOT maintain any rule prohibiting
union solicitation during lunch, break periods,
and other nonworking time.
WE WILL NOT maintain any rule prohibiting
the distribution of union literature on company
premises in nonworking areas.
WE WILL NOT refuse to recognize and bar-
gain collectively regarding wages, hours, and
other terms and conditions of employment
with Upholsterers' International Union of
North America, AFL-CIO, as the exclusive
representative of the employees in the follow-
ing appropriate unit:
All production and maintenance employees
of the Employer at its Henderson, Kentucky
facility, including all plant clerical employ-
150
SCHNADIG CORPORATION
ees, the shipping clerk, the stores clerk, the
janitor/sweeper, the truckdriver and the
lead person in the finishing department; but
excluding all engineering department em-
ployees, the engineering clerk, the sample
shop trainee, the pattern makers, the
jigs/fixtures maker, the tool grinder, all
office clerical employees, the
typist/receptionist, the engineering clerk, the
inventory control clerk, the payroll clerk,
the production control clerk, the draftsman,
the general clerk-senior, the draftsman rout-
ings, all inspectors, all professional employ-
ees and all supervisors as defined in the Act.
WE WILL NOT change your bidding, senior-
ity, absentee and attendance rules, or other
working conditions without bargaining with
the Union.
WE WILL NOT change the layoff rules and
lay you off without bargaining with the Union.
WE WILL NOT change the wage scale,
grades, and ranges without bargaining with the
Union.
WE WILL NOT unilaterally condition the
recall of laid-off employees upon their accept-
ance of illegal changes in wages or working
conditions.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the
Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive repre-
sentative of the employees in the above-de-
scribed appropriate unit, and, if an understand-
ing is reached, embody such understanding in
a signed contract.
WE WILL, upon request of the Union, re-
store the job bidding procedures, seniority
system, and the absentee and attendance pro-
gram which were in effect before October 31,
1980, and the wage scale, grades, and ranges
which were in effect before January 1, 1981.
WE WILL make whole, with interest, em-
ployees who have suffered monetary losses by
reason of the unilateral institution of a new
wage structure on January 1, 1981.
WE WILL offer William Adams, Jr., Susan
Brooks, Richard Conder, Thomas Muenster-
man, and Mary Stevens immediate and full re-
instatement to their former jobs or, if those
jobs no longer exists, to substantially equiva-
lent positions, without prejudice to their se-
niority or any other rights or privileges previ-
ously enjoyed, and wE WILL make them whole
for any loss of earnings and other benefits re-
suiting from their discharge, less any net inter-
im earnings, plus interest.
WE WILL recall all bargaining unit employ-
ees laid off on or after December 5, 1980, at
their former rates of pay, dismissing, if neces-
sary, persons hired after that date; if sufficient
jobs are not available, WE WILL place the re-
maining laid-off employees on a preferential
hiring list doing so, at the request of the
Union, in accordance with the seniority system
in effect before October 31, 1980, and offer
them employment before any other persons are
hired.
WE WILL make whole, with interest, any
employee for any loss of pay or other benefits
he may have suffered by reason of the changes
in the seniority system instituted on October
31, 1980.
WE WILL expunge from our records all ref-
erences to disciplinary warnings and suspen-
sions given to William Adams, Jr., and Rich-
ard Conder in November and December 1980.
WE WILL expunge from our files any refer-
ence to the discharge of Thomas Muenster-
man, on November 20, 1980, and to the dis-
charge of William Adams, Jr., on March 2,
1980, and notify them in writing that this has
been done and that evidence of their unlawful
discharges will not be used as a basis for future
personnel actions against them.
SCHNADIG CORPORATION
DECISION
STATEMENT OF THE CASE
MARION C. LADWICG, Administrative Law Judge:
These consolidated cases were heard at Evansville, Indi-
ana, March 30-31 and April 1-2 and 28-30, 1981.1 The
charges were filed September 3, January 12 and 24
(amended February 25), February 17, and March 26.
Consolidated complaints were issued October 24 (amend-
ed March 20 and at the hearing), February 26 (amended
March 4 and 20), March 20 (corrected March 23), and
April 16.
These cases primarily involve whether the Company,
the Respondent, (a) before the election destroyed the
Union's majority support by threatening to close the
plant and engaging in other coercive conduct, (b) after
the election continued to undermine the union support
by unlawfully discharging two union organizers and
"laying off" two others whom it failed to recall when
hiring new employees, and (c) unlawfully refused to bar-
gain while preventing a fair election, necessitating a bar-
' All dates are from May 1980 until April 1981 unless otherwise indi-
cated.
151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining order, in violation of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act.
In the representation case, the petition was filed
August 4 and an election (directed by the Regional. Di-
rector) was conducted October 1. Excluding 3 chal-
lenged ballots, the vote was 51 for and 74 against union
representation. Timely objections were filed by the
Union. On November 25, the Regional Director issued
an order (clarified February 20) consolidating the repre-
sentation and complaint cases and referring the represen-
tation case to the Board. The issues in the representation
case are whether an alleged violation of the Excelsior
rule and the Union's other objections "insofar as they are
alleged as unfair labor practices" warrant setting aside
the election. [Excelsior Underwear Inc., 156 NLRB 1236
(1966).]
Upon the entire record, 2 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Company, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Delaware corporation, manufactures
tables, cabinets, and related products at its facility in
Henderson, Kentucky, where it annually ships goods
valued in excess of $50,000 directly to points outside the
State. The Company admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
It. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company, which owns seven union plants manu-
facturing upholstered furniture, purchased the nonunion
table manufacturing plant in Henderson in June 1979.
The following May, the Union began an organizing
drive. On July 31, when the Union represented a major-
ity of the 126 production and maintenance employees
(having obtained 70 valid union authorization cards, 6
more than required for a majority, as discussed later), the
Company refused the Union's bargaining demand. (G.C.
Exh. 9.)
During the election campaign the Company empha-
sized its heavy financial losses at the plant, and various
representatives of management are alleged to have made
threats that the Company would close the plant if the
Union were selected to represent the employees. A
major question facing the employees at the election was
whether the Company would close the plant in reprisal.
Foreman Danny Stone acknowledged that "There were
numerous rumors . . . the plant was going to shut
down," and that, in his conversations with employees,
I The General Counsel's and Company's unopposed motions to correct
the transcript, both dated June 26, 1981, are granted and received in evi-
dence as G.C. Exh. 59 and Resp. Exh. 30.
they would usually ask "if the plant was going to close
down."
After the Union's defeat in the October I election (by
a margin of 23 votes, 51-to-74) and the filing of union
objections, the Company discharged 2 union organizers,
and "laid off' 2 others and another union supporter
whom it failed to recall when hiring new employees.
The Company made a number of unilateral changes, in-
cluding a reduction in wages, and failed to notify or give
the Union the opportunity to bargain about the changes
and about these and other layoffs, taking the position
that it had no obligation to bargain with the Union.
B. Alleged Conduct Before the Election
1. Threats of plant closure
a. Threat by Foreman Williams
Sometime in June or July, as hand sander Bertha
Jewell credibly testified, Foreman David Williams was
making the rounds, talking to each of the employees in
the department. After giving the Company's arguments
against the Union, "he went on to tell me that rather
than to see the plant under a union 'right now, that
[Board Chairman Lawrence] Schnadig could close the
plant down to keep it from happening." (Emphasis sup-
plied.) Williams testified that "We had the same spiel
that we had . . . to give to each employee," but he
denied telling Jewell anything about closing the plant
down, because "We were given do's and don'ts" by the
people who "were aiding us in . . . trying to keep the
union out . . . and that was one you didn't do." Jewell
impressed me as being an honest witness who had a clear
recollection of the conversation. I credit her account of
what was said and discredit the denial. I find that Wil-
liams' statement to her was at least an implied threat of
plant closure and violated Section 8(a)(l) of the Act.
Williams revealed on cross-examination that the Com-
pany was aware the employees were asking questions
"about the plant being shut down if the union won." He
testified that he was sure there were such questions and
that "They all wondered what would happen." He testi-
fied that all he could say was "I don't know. I don't
know what the outcome will be." He added, "This is
what we were instructed to say .... Sure, the employ-
ees were concerned-most definitely concerned." Thus
the Company was aware that the employees feared it
would close the plant in reprisal if they voted for the
Union, but the Company did nothing to dispel the fear.
b. Threat by Foreman Gunther
One day in early September, when final assembler
Brenda Hoggard heard rumors of a plant shutdown and
of the foremen having a meeting concerning the Union,
she asked Foreman James Gunther if he had been to the
meeting and "if he thought they would shut the plant
down if the union were voted in." As she credibly testi-
fied, "he said yes that he thought they would." When
asked by company counsel if he recalled Hoggard
coming up to him after a foremen's meeting and asking
him if the Union got in, would the Company close the
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SCHNADIG CORPORATION
place down, Gunther answered that he did not recall
those words and did not think she asked him that. On
cross-examination Gunther denied that Hoggard ever
asked him what he thought the outcome would be if the
Union won the election. He did not appear to be a
candid witness. I discredit the denials and find that his
answer concerning a plant shutdown if the Union were
voted in tended to be coercive and violated Section
8(a)(1) of the Act.
The evidence is clear that, during its campaign against
the Union, the Company continued to emphasize its fi-
nancial losses while doing nothing to dispel the employ-
ees' fear of a plant closure in reprisal for selecting the
Union. As revealed by Gunther, "They had a big poster
and showed each month what they had lost, and of
course the employees were worried."
c. Alleged threat by Foreman Puckett
The first complaint alleges that Foreman Chester
Puckett, about September 23, threatened "employees that
the facility would be closed if the Union were selected
to represent them." The only supporting evidence is the
testimony of press operator Thomas Muensterman who
recalled having a conversation on the subject with Puck-
ett but who did not appear to have a recollection of the
words Puckett used in this conversation. I therefore find
this allegation must be dismissed.
d. Threat by Consultant Reinhold
About September 17 Consultant Arthur Reinhold,
speaking on behalf of the Company, met with employees
in groups of about 20 and spoke without notes. As he
testified, he told the employees that he had hired two of
the best managers, Plant Manager Joseph Tunstall and
Plant Superintendent John Gerred, to "straighten the
mess out" after the prior plant management had "done a
very poor job" and lost a great deal of money. He told
them that unfortunately at that time they were going
through the election campaign "and we had to get
through it somehow or another and go on to better
things." Although he did not explicitly threaten closure
of the plant if the Union were selected to represent the
employees, he implied from his prior experience with
two unionized plants that this would be the result. As
credibly testified by finish repairman Hubert Condor,
who attended one of the meetings, Reinhold told that
group of employees that he himself had owned seven
plants at one time, that "he didn't have any outside help
to help him run those and didn't need any to help him
run this one," and that "two of them (were] union and
that he had closed one and sold one."
As contended by the General Counsel, these remarks
were made in the context of an organizational campaign
"when rumors and threats of plant closure were rampant,
and spoken by the person who possessed the power to
effect decisions concerning the plant's future." I find
that, in this context, Reinhold's remarks about getting
through the election campaign somehow to go on to
"better things," not needing any outside help in running
his own plants before, not needing any help in running
this plant, and having closed one of his two union plants
and selling the other, were an implied threat of a compa-
ny decision to close the plant if it became union. I there-
fore find that the remarks tended to be coercive and vio-
lated Section 8(a)(1) the Act.
e. Threat by Board Chairman Schnadig
On September 22, Board Chairman Lawrence Schna-
dig spoke to all of the employees in a meeting. While
discussing the Union's organizing effort he made it clear
that he had purchased the Glenwood plant in Henderson
as a nonunion plant and that he expected it to stay non-
union. He then alluded to a possible closing of the plant,
stating that Schnadig Corporation was in the table busi-
ness to stay and that hopefully, with the employees' help,
the Company would stay in Henderson, "but if not here.
somewhere else." (Emphasis supplied.) He gave no assur-
ances that he would not close the plant in reprisal if they
voted for the Union-as supervisors had expressed the
opinion that he or the Company could or would do and
as Consultant Reinhold had implied would happen.
Schnadig, who impressed me as being a credible wit-
ness, reconstructed his speech from index cards (Resp.
Exh. 21) which he had used and gave the following ac-
count. He recalled stating that "Many people have talked
to you," specifically mentioning Reinhold, "but you
might want to hear from the guy who owns the place."
In his speech he told the employees that he decided to
go into the table business in 1978 and looked for a year
before choosing the Glenwood plant. He said that since
then the Company had proved two things: first, it could
design and sell quality tables, but, second, it could not
manufacture them at a profit, but at a "huge loss." He
said the Company had attracted all good people to work
there, but the "poor planning" by inexperienced plant
management had "prevented you from accomplishing
what both you and [we] wanted to do." He stated that
the Company had therefore reorganized; that Reinhold,
who had been a very successful table manufacturer
before his retirement, was changed from adviser to
"boss" of the table operations; and that Reinhold had
searched and found Tunstall and Gerred two of the best
managers in the business. Schnadig then said that the
new managers needed the employees' help, and began
talking about the "intense union organizing effort." He
stated that Glenwood's being nonunion was "a factor in
our choice," that nearly all of their competitors were
nonunion, and "We want and expect to stay nonunion."
(Emphasis supplied.) He said that neither the union orga-
nizers nor the Company could promise them a job, that
the Company could promise them an opportunity, "but
it's no good unless we can make Henderson profitable
and we can't do that without your help," doing not just
what they are asked to do but making helpful and con-
structive suggestions. He then gave "A word about the
future of the Schnadig Corporation and the table busi-
ness." He stated, "We're in the table business to stay.
Hopefully, with your help in Henderson. but if not here,
somewhere else." (Emphasis supplied.) He later added, "A
union at this time can't help us or you and will probably
make our success more difficult." He asked for a year to
make the Henderson plant successful, and said he wanted
153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them to vote no on choosing a union "because we don't
believe it is good either for the company or for your
future. However, this is a free country. And you can do
as you like, but you're also intelligent people and shouldn't
go for a snow job. I've told you the truth" and he hoped
they believed it. (Emphasis supplied.) Giving the Compa-
ny the benefit of any doubt, I accept this version for pur-
poses of ruling on the opposing contentions.
The Company contends in its brief that there was no
threat of plant closure, arguing that Board Chairman
Schnadig detailed the tremendous losses, described the
steps taken to turn around the business, and "candidly
conveyed to the employees his intent to stay in the table
business, preferably without a union." But Schnadig
went much further. After pointing out that he had pur-
chased a nonunion plant and "We . . . expect to stay
nonunion," Schnadig stated, "We're in the table business
to stay. Hopefully, with your help in Henderson, but if
not here, somewhere else." He was clearly implying that
if the Company could not stay nonunion in Henderson,
as he expected to do, the Company's table business
would not stay there but go elsewhere.
The Company also argues that Schnadig "explained to
the employees that it was his opinion that a union would
not be good for the future of either the employees or
Schnadig Corporation but that it was a free country and
the employees were entitled to do as they saw fit." But
again, Schnadig went further. He, speaking as the owner,
had just stated he expected to stay nonunion, before stat-
ing that he did not believe a union was "good . . . for
your future." He then stated that "this is a free country"
and that "you can do as you like," however, adding,
"but you're also intelligent people" and should not be-
lieve the Union's snow job because "I've told you the
truth and hope you believe it." In effect he was telling
the employees that they were intelligent enough to take
his warning, that he intended to stay nonunion at the
Henderson plant, and that he was calling upon them to
help keep it that way; otherwise the Company would
stay in the table business, not in Henderson but "some-
where else."
Schnadig gave the employees no reason for the Com-
pany being unable, under the new management, to oper-
ate the plant successfully with a union as the Company
was operating its seven union upholstery plants. On
cross-examination he testified that about 80 percent of
the upholstery industry had gone south, where at least 90
percent were nonunion. He thought he would.have more
flexibility in a nonunion shop, but when asked whether
he thought the Henderson plant could survive with a
union, he answered that there was not always unanimity
of opinion in management, "I would say I probably
thought we could survive. We've survived in the uphol-
stery business."
Citing N.L.R.B. v. Gissel Packing Co., 395 U.S. 575,
618 (1969), the Company argues in its brief, "The First
Amendment to the Constitution and Section 8(c) of the
Act specifically protects an employer's right to make
known to employees his general views about unionism or
any of his specific views about a particular union." It
further argues, "This is exactly what Mr. Schnadig did in
his speech," ponting out the uncontested loss of money.
However, Gissel further teaches that the prediction of
plant closure "must be carefully phrased on the basis of
objective fact to convey an employer's belief as to de-
monstrably probable consequences beyond his control";
that "If there is any implication that an employer may
. . .take action solely on his own initiative for reasons
unrelated to economic necessity . . . the statement is
... a threat of retaliation based on misrepresentation
and coercion, and as such without the protection of the
First Amendment"; and further, that "[c]onveyance of
the employer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is not a
statemeft of fact unless, which is most improbable, the
eventuality of closing is capable of proof." Id. at 618-
619.
. It is clear that when Schnadig alluded to the Company
staying in the table business hopefully in Henderson,
"but if not here, somewhere else," he was not carefully
phrasing the reference to plant closing "on the basis of
objective fact to convey an employer's belief as to de-
monstrably probable consequences beyond his control."
To the contrary, he had just stated in the speech that he
chose a nonunion plant and "We ... expect to stay non-'
union," implying a "threat of retaliation" if the employ-
ees voted for a union.
Past statements by representatives of management had
already spread alarm among the employees that the
Company would close the plant in reprisal if the employ-
ees voted in a union. Schnadig's speech undoubtedly
tended to increase these fears a few days before the Oc-
tober I election, in which the Company overcame the
Union's majority and won by a 23-vote margin (exclud-
ing 3 challenged ballots).
Under these circumstances I find that Board Chairman
Schnadig's September 22 speech was coercive and violat-
ed Section 8(a)(1) of the Act.
2. Other alleged threats
The first complaint alleges that Quality Control Fore-
man David Williams threatened employees with dis-
charge if they supported the Union. In the middle of
June, shortly after Richard Theriac (then a roving in-
spector) became the principal union organizer, Williams
invited Theriac into his office and said (as Theriac credi-
bly testified) "that he had heard I had been going
through the plant talking about the Union. He said it was
all right to talk about the Union, because that was my
right but I wasn't allowed to do it on working hours, or
stop anybody from working." Theriac promised not to
do that and, referring to soliciting while working, said,
"I had not been going through the plant during working
hours discussing the Union." It was then that Williams
said "something to the effect about being careful because
he didn't want to lose me." I find that Williams was
merely cautioning Theriac about soliciting while he was
working. I therefore find that this allegation must be dis-
missed.
The complaint also alleges that Foremen Chester
Puckett and Danny Stone threatened employees with the
discontinuance of pay raises if they selected the Union to
154
SCHNADIG CORPORATION
represent them. I find that these allegations also must be
dismissed because of lack of evidence to support them.
3. Interrogation
About the middle of June, as finish repairman Hubert
Conder credibly testified, Production Manager Ken
Martin went to Conder's work station and stood, watch-
ing him. Conder asked what Martin had on his mind and
Martin said, "union activities.... I have ... some
questions I would like to ask you." Conder told Martin
to wait, "I have got something that I want to tell you."
Conder said he had been a supervisor at Glenwood when
the Union tried to get in before, that he had been ac-
cused of working for the Union, and that was a lie.
Martin asked him, "Did someone ask you to sign a union
card?" Conder said yes; Martin asked if it was at lunch
or on the job, and Conder said at lunch. Martin later
asked, "Was this Jim Hall that asked you to sign this
card?" Conder said no, and refused to tell him. (I dis-
credit Martin's denial that he asked Conder questions
about the Union.) Martin gave Conder no legitimate pur-
pose for asking the questions and, despite Conder's ex-
pressed concern about accusations of his involvement,
Martin gave him no assurances against reprisals. I find
that the interrogation tended to be coercive in the exer-
cise of employee Section 7 rights and violated Section
8(aXl) of the Act. I also find, as alleged, that the ques-
tioning of Conder about the organizing activity of Hall
created the impression that the employees' union activi-
ties were under surveillance, further violating Section
8(a)(l) of the Act.
Contrary to the denials by Assembly Room Foreman
James Gunther that he ever asked any employees about
the Union or about their union activities, several employ-
ees credibly testified that he did engage in such interro-
gation. In September or late August, after employee
Rhonda Bell signed a union authorization card, Gunther
came to her work station, asked whom she was for, and
asked if another employee (Charlene Dusek) was for the
Union. Bell answered that she was not for the Union and
denied knowing if Dusek was. In mid-September, after
employee Michelle Knott had signed a card, Gunther
came to her work station, talked against the Union, and
"asked me if anybody had ever [given] me a union card,"
and "if I signed it." She admitted being given a card, but
untruthfully denied signing it. Also in mid-September,
Gunther went to employee Gregory Hope's work station
and said, "Greg I have been going around asking people
how they feel about the Union." Hope responded for
himself, stating, "Jim I don't rightly know right now"
(although he had previously signed a union card). Then
Gunther asked, "Greg do you think we could whip it
like we did the last time .... And I said I don't know."
I discredit Gunther's claim that Hope said, "we will
whip it like we did two years ago." (As indicated above,
Gunther did not impress me as being a candid witness.)
Likewise after employee Brenda Hoggard had signed a
union card, Gunther went to her work station and asked
what she thought about a union at the plant. She un-
truthfully answered, "I never really thought about it."
Hoggard later signed, at her work station, an antiunion
paper being circulated (G.C. Exh. 33) and wrote a vote-
no button because she did not want to be in disfavor
with Gunther, her foreman. Gunther gave no lawful
reason for asking these employees questions about the
union activities and sympathies, and did not give any of
them any assurances against reprisals. I find that the in-
terrogation tended to coerce employees in the exercise of
their Section 7 rights and violated Section 8(aXI) of the
Act.
Having found these repeated instances of coercive in-
terrogation, I do not deem it necessary to rule on other
allegations of interrogation.
4. Promise of promotion
About the first week of September, as credibly testi-
fied to by employee Theriac (who impressed me favor-
ably as an honest witness), Foreman Puckett invited him
to step outside the plant to talk for a couple of minutes.
Puckett asked him if he would be interested in talking
about the second-shift foreman's job, and stated that "if
the second shift wasn't continued, I would be brought
back on the first shift as a foreman." Theriac said he
would be very interested, but then Puckett added, "If
you'll take off your [U.I.U. union] hat . . . to help us to
defeat the Union, I am pretty sure we can get you this
job." Being the leading union organizer, Theriac "told
him to forget it because I wasn't taking my hat off." I
discredit Puckett's claim that it was Theriac who men-
tioned taking off the U.I.U. hat "if he should decide to
take the job." (Puckett did not impress me as being a
candid witness.) I find it clear that this promise of a pro-
motion if the employee would contribute to the defeat of
the Union in the election violated Section 8(aXl) as al-
leged.
5. Denial of wage increase
In September when supply room clerk William
Adams, Jr. (one of the Union's voluntary organizers who
was later discharged), requested his annual raise, Materi-
al Control Administrator Steve Montgomery raised two
objections: first, "we can't give you a raise right now be-
cause if we do [before the election], the Union might
view that as bribery," and, second, "I don't know if that
annual evaluation [is] based on your anniversary date or
for the fiscal year." Adams said it should not necessarily
be considered bribery because he believed he was due an
annual raise, and that he thought he was entitled to it on
his anniversary date (September 24, G.C. Exh. 32).
Montgomery said, "I'll check and get back to you."
I find that the General Counsel has not shown that the
Company would have given Adams the annual raise at
that time in the absence of the union activity and the
pending election. (Adams' later request for the raise,
after the election, is discussed below.)
6. Solicited grievances
After making the coercive, plant-closure speech on
September 22, Board Chairman Schnadig toured the
plant, talking to the employees. When he reached em-
ployee Susan Brooks' work station, as she credibly testi-
fied, he "asked me my name and asked me if there was
anything that he could do for me." This was in the pres-
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence of employee Fay Francis who was not called to
corroborate or deny it. (Schnadig recalled saying only
"Hello," or "How are you doing?" but Brooks appeared
to have a clear recollection of the words he used.) "We
asked him for rubber mats to go down the line because
of our feet hurting," and because Francis' legs and back
were hurting. "He told us that he would see what he
could do for us." Later Schnadig returned with Plant
Manager Joseph Tunstall and suggested that Brooks tell
him what they wanted. Brooks did, and Tunstall asked
the type and dimensions they wanted. After the discus-
sion, Tunstall "said he would see what he could do."
Schnadig recalled telling Tunstall "if there is anything
that you can do to help her poor little feet, on this very
hard concrete floor, I thought maybe you can do it."
The mats were never provided.
I find that by soliciting the employee's grievances on
September 22 (9 days before the election) and by making
at least an implied promise to remedy the complaint she
raised, the Company violated Section 8(a)(l) of the Act.
Reliance Electric Company, Madison Plant Mechanical
Drive Division, 191 NLRB 44 (1971), enfd. 457 F.2d 503
(6th Cir. 1972).
7. No-solicitation and no-distribution rule
The Company's corporate plant rules, which were
posted on the plant's bulletin boards and distributed to
the employees in August 1979 and thereafter given to
new employees as they were hired contained rule 31
which prohibited:
Solicitation of any kind during working hours, or
collecting contributions for any purpose, or distrib-
uting literature of any kind on Company premises or
Company time without specific prior approval of
the General Manager. [Emphasis supplied.]
The rule remained unchanged throughout the organizing
and election campaign. It was not changed until a new
rule (G.C. Exh. 21) was promulgated after the October
24 complaint was issued, several weeks after the election.
Rule 31 obviously contains an overly broad no-solicita-
tion rule, prohibiting union solicitation "during working
hours" without either limiting the prohibition to the time
the employees were actually working or stating that it
does not apply to nonworking lunchtime or breaktime.
(The no-distribution part of rule 31 is discussed later.)
In Essex International, Inc., 211 NLRB 749, 750 (1974)
(Chairman Miller and Member Kennedy; Member Pen-
ello concurring; Members Fanning and Jenkins dissent-
ing), a distinction was made between valid no-solicitation
rules during "working time" and invalid "working
hours" rules which, "unless their impact on lunch and
breaktime is clarified," unduly restrict employees' rights
to engage in union solicitation during their nonworking
time. The majority opinion held that "a rule prohibiting
solicitation during 'working hours' is prima facie suscepti-
ble of the interpretation that solicitation is prohibited
during all business hours and, thus, invalid," but that the
employer could cure the ambiguity by showing through
extrinsic evidence that "the 'working hours' rule was
communicated or applied in such a way as to convey an
intent clearly to permit solicitation during breaktime or
other periods when employees are not actively at work."
Ibid. Member Penello, concurring, agreed with the dis-
tinction but set forth in his separate opinion "what I be-
lieve an employer must do in order to satify his obliga-
tion to clarify rules which make reference to the term
'working hours."' He indicated he was unwilling to con-
sider such subjective considerations as employee under-
standing of a rule in determining its validity, but "will
require that the clarification of a facially invalid rule
must come from the employer alone, either by a written
or an oral explanation to all employees." (Emphasis sup-
plied.) He explained, "Any other course would place an
employee in the position of having to test the rule in
order to determine its application. Such a course, in my
opinion, would inhibit employees and restrict their rights
. . . to engage in union solicitation. . . during their non-
working time." Id. at 751-752. Although dissenting to a
distinction being made between "working time" and
"working hours" rules, Members Fanning and Jenkins
joined with Member Penello (making a three-member
majority) in requiring more than subjective consider-
ations of employee understanding. They stated in their
dissenting opinion that an employer who does not intend
that a rule include "all time from the beginning to end of
a work shift including paid breaktime, lunchtime, and
cleanup time" can "easily incorporate in the statement of
the rule a disclaimer that the restriction on organization-
al activities is intended to apply to such time. His failure
to do so necessarily imposes on employees the risk of
violating the rule if they engage in such activities during
such times that rule may not lawfully, but arguably does,
reach. Imposing such risk upon employees is itself an in-
terference with their exercise of Section 7 rights." Id. at
753. (I note that recently in T.R. W. Bearings Division, 257
NLRB 442 (1981), the Board held that "rules prohibiting
employees from engaging in solicitation during 'work
time,' or 'working time,' without further clarification,
are, like rules prohibiting such activity during 'working
hours,' presumptively invalid," overruling Essex Interna-
tional to that extent.)
In the present case, the Company decided to strictly
enforce rule 31 insofar as it applied to union solicitation
during actual working time, but not to enforce it during
the 30-minute lunch period and the 10-minute morning
and afternoon breaks. Thus, Foreman Puckett testified
that, in applying rule 31, nobody could do any soliciting
"on the hours they were supposed to be at the work sta-
tion," but could on "their breaktime, lunchtime, before
and after work." However the Company did not clarify
the rule, either verbally or in writing, to advise all em-
ployees that the no-solicitation rule 31 was confined to
time the employees were actually working, or that the
rule-which had been distributed and posted on the bul-
letin board-permitted soliciting for the Union during
lunch and breaks.
Meanwhile, the Company was carrying on a vigorous,
one-on-one, antiunion campaign during working time. As
testified by Foreman David Williams, "It was difficult to
try to do the job and make the rounds and get all this
done . . . because there was a certain amount of infor-
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SCHNADIG CORPORATION
mation that we were trying to get across [to the employ-
ees], to each one each day." Except for discussing the
Union, there admittedly was no rule against the employ-
ees talking on the job as long as it did not interfere with
work. Foreman Danny Stone testified that "As long as
my people stay productive I don't care what they talk
about," but that the employees in all departments were
not permitted to talk about the Union during working
time. (The General Counsel argues in his brief that the
no-solicitation rule "was discriminatorily enforced."
However, the first complaint alleges only that the overly
broad no-solicitation rule was promulgated and main-
tained. There was no allegation of discriminatory
enforcement and I find that issue is not before me.)
It is well established that "The mere existence of an
overly broad rule tends to restrain and interfere with em-
ployees' rights under the Act even if not enforced,"
Staco, Inc., 244 NLRB 461, 469 (1979), and that the
rule's mere existence tends to "inhibit the union activities
of conscientious minded employees," Custom Trim Prod-
ucts, 255 NLRB 787 (1981). Moreover, I infer that the
Company's maintenance of the overly broad no-solicita-
tion rule 31, prohibiting union solicitation "during work-
ing hours" for the entire period of the election campaign
without the impact of the rule on lunch and breaktime
being clarified, while at the same time carrying on its an-
tiunion campaign during working time, had a severe ad-
verse effect, inhibiting the employees in the exercise of
their Section 7 rights. I therefore find, as alleged in the
first complaint, that the Company coercively maintained
the overly broad no-solicitation rule in violation of Sec-
tion 8(a)(1) of the Act.
Concerning the no-distribution part of rule 31, it was
overly broad inasmuch as it prohibited the distribution of
union literature on company premises without prior ap-
proval of the general manager. Although the Company
did generally permit employees who ignored the rule to
pass out union literature on the Company's premises
without permission, it did not announce verbally or in
writing that the rule was rescinded or that they were en-
titled to exercise this right. I find that the Company, by
maintaining the overly broad no-distribution rule
throughout the election campaign, coerced the employ-
ees in the exercise of their Section 7 rights in violation of
Section 8(a)(1) of the Act, even though the rule was gen-
erally not enforced against those willing to ignore it.
Custom Trim Products, supra.
There was one occasion, on September 22, when one
of the supervisors restricted the distribution of union lit-
erature on the plant premises, outside the timeclock door
entrance. It is undisputed, as assembler Darlene Baker
credibly testified, that before work on that date Finishing
Room Foreman Robert Bloyd stuck his head out the
door and told her not to pass out the union leaflets (G.C.
Exh. 18) there, "that not even a nonunion employee
could pass out any leaflets there, they had to be 18 feet
away from the factory." At the time, the Company was
passing out much of its literature in the working area
during working time, yet it was objecting to Baker pass-
ing out union literature on her own time on company
premises where a large number of employees could be
reached when they were entering the plant. Baker left
the company sidewalk and went to the end of the drive-
way, but then returned when told by the U.I.U. general
organizer that Bloyd had acted unlawfully. Later that
morning when she told Bloyd he had violated Federal
law, he did not retract what he had told her but said,
"Yeah, that's what lawyers are for," and anyway, "Re-
member I asked you to move, I didn't tell you." I find
that Bloyd's conduct (which he did not retract) in
having her move from the company premises outside the
plant entrance tended to be coercive in the exercise of
employee Section 7 rights, and violated Section 8(a)(1)
of the Act.
8. Other alleged coercive conduct
The first complaint alleges that the Company discri-
minatorily restricted employee Loyal Poore to his work
station and other employees to their departments unless
they had permission to leave the area 'or department.
However, one of the above-mentioned corporate plant
rules, which had been posted and distributed to the em-
ployees, was rule 28 which prohibited "Leaving depart-
ment or work station . . . without prior permission of
supervisor." (G.C. Exh. 5.) The evidence supports the
Company's defense that "A number of Mill Room em-
ployees, particularly Loyal Poore, were disregarding this
rule and had been observed by the production manager,
Ken Martin, wandering around the plant when they
should have been in the mill room working." One of the
mill room employees, press operator Muensterman,
frankly informed Plant Manager. Tunstall in a conversa-
tion before the election that there was a problem with
employees "running around talking and not doing their
job." I agree with the Company that it did not violate
the Act by reminding employees, individually and in a
group meeting, of the obligation to comply with the rea-
sonable rule designed to ensure satisfactory production. I
therefore find that these allegations must be dismissed.
The complaint also alleges that a total of five supervi-
sors, on various occasions in August and September,
"kept under surveillance" the employees' union activities.
These allegations refer to the supervisors' watching the
employees distribute union literature. However the evi-
dence shows merely that the supervisors were observing
the open, public distribution of both prounion and an-
tiunion literature outside the plant. There is no evidence
that any of them took any notes or made any lists. The
Board had held that "[u]nion representatives and em-
ployees who choose to engage in their union activities at
the Employer's premises should have no cause to com-
plain that management observes them." Porta Systems
Corporation, 238 NLRB 192 (1978). I therefore agree
with the Company that its conduct did not constitute il-
legal surveillance, and find that these allegations must be
dismissed.
The complaint further alleges that Foreman Gunther
"gave antiunion literature to an employee to distribute to
the Respondent's employees." Although denied by Gun-
ther, the credible evidence shows that Gunther was seen
giving some antiunion literature (G.C. Exh. 16) to em-
ployee Deborah Brown in the office, and that she there-
after began distributing it with employee Anna Bloyd,
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the wife of Foreman Bloyd, at the plant entrance. How-
ever the evidence does not reveal whose idea it was to
distribute the literature, who prepared it, or whether
there was any coercion involved. Under these circum-
stances, I find that the General Counsel has failed to
prove that there was any interference with the exercise
of employee Section 7 rights. I therefore find that the al-
legation must be dismissed.
9. Alleged discriminatory discharge of Rick Poore
There is a direct conflict in the testimony concerning
the circumstances of mill room employee Rick Poore's
discharge on August 1.
According to Mill Room Foreman Chester Puckett,
about 9 a.m. he assigned Poore the cutting of two curio
shelves at a time on the DeWalt radial arm saw, without
the assistance of an off-bearer. About an hour later he
noticed that Poore was cutting one board at a time; "I
told him we needed to cut two boards. It's not that hard
and we need more production." Poore said he was tired,
and "I told him if he couldn't cut two boards, I'd get
somebody else to cut two boards and he said that he
could." Shortly after lunch, about 12:15, he again ob-
served Poore cutting one board. He said, "you're going
to have to run two boards because we need the produc-
tion." About 1:15 Poore was again cutting one board at a
time and Puckett said, "I can't work you like this ...
they cut two boards last night, and I've got to have two
boards cut . . . I've got a schedule to meet." Poore re-
sponded, "Hell, I'm tired." Puckett said he was tired too,
"I want you to get your card and I'll get your check and
I'll get somebody that can run the job efficiently." Poore
asked if he was fired; Puckett said yes; Poore said, "if
you just let me stay I'll go ahead and run it. .... I can
run as much as anybody can;" but Puckett said it was
too late, "I'd already given him enough time." Puckett
then assigned another operator to cut the shelves, for the
rest of the day without an off-bearer and with an off-
bearer the following day.
According to Poore, however, he was cutting two
boards from the time he was assigned until he was sum-
marily discharged about 1:45 p.m. He testified that he
asked two or three times for an off-bearer, that Puckett
said no, and that, although he was cutting two boards
the entire time, Puckett came back to the job and said
"You're fired." Poore asked why and Puckett said "you
should cut two boards at'a time," which he said he did.
Poore and his father, Loyal Poore, actively assisted
employee Theriac in the union organizing campaign, and
the Company was aware of his union support. The day
after Poore's discharge, as Theriac credibly testified,
Theriac told Puckett "you got two men doing the job
you had Rick doing," and Puckett said, "I know." Ther-
iac asked, "Don't you think you are leaving yourself
wide open?" or something to that effect, and Puckett re-
sponded, "Yeah I am but that is the way they want it."
The General Counsel contends that the alleged cause
for Poore's discharge was a pretext, and that Poore was
in fact discharged because of his union activities to
quelch the tide of union activity springing from the mill
room. The Company contends that Poore's discharge
was unrelated to any union activities and resulted solely
from his failure to follow the instructions of his supervi-
sor.
Although I cannot credit much of Foreman Puckett's
testimony (particularly his claim, contrary to other cred-
ited testimony, "We seldom have an off-bearer on the
radial arm saw" when cutting two boards), I do not be-
lieve Poore's testimony that he was cutting two boards
the entire time that day. It does not ring true that if he
had been, Puckett would have summarily discharged
him, accusing him of cutting single boards. I therefore
discredit that part of Poore's testimony as being a fabri-
cation. It appears that Puckett's statement to Theriac the
following day, that he realized the assigning of the work
to two employees was leaving himself wide open (to a
discrimination charge) but "that is the way they want
it," raises considerable suspicion about his motivation for
discharging the union organizer. I find, however, that
the comment is sufficiently ambiguous not to be conclu-
sive and that the General Counsel has failed to make a
prima facie case that the discharge was discriminatorily
motivated. I therefore find that the allegation of discrimi-
natory discharge must be dismissed.
C. Alleged Conduct After the Election
1. The circumstances
On October 2, the day after the election, Plant Man-
ager Tunstall held an employee meeting and announced
a number of unilateral changes in working conditions at
the plant. On October 7, the Union filed timely objec-
tions to the election.
It soon became apparent that the Company was con-
cerned about winning a second election if the first elec-
tion were set aside.
On Friday, October 10, Foreman Gunther had a final
conversation with employee Brenda Hoggard who had
been notified that week that she was being recalled to
her former job at Whirlpool in Evansville (across the
river from the Henderson plant). She is the employee
whom Gunther had coercively interrogated and threat-
ened with plant closure, as found above. She had ex-
pressed to Gunther her dislike for driving across the
bridge in the wintertime.
Indicating the Company's concern about the election,
Gunther went to where she was taking a smoking break
outside the plant entrance. It is undisputed that "He
asked me would it be all right if he kept my name ...
on the employment records for two or three days
longer," explaining "he didn't know for sure but some-
thing might come up over the vote." (That Friday, Octo-
ber 10, was her last day at work. I note that the compa-
ny records (G.C. Exh. 32) reflect that Hoggard "Quit
10/12/80," 2 days later as Gunther mentioned.) As he
further credibly testified, Gunther "mentioned a vote"
and "asked me would I come back to vote, if they
should hold another one." It is obvious that the Compa-
ny was seeking a "no" vote. As found above, Hoggard
has signed a union authorization card, but before the
election she had signed an antiunion paper and had
begun wearing a vote-no button.
158
SCHNADIO CORPORATION
It is in this setting that I first consider the allegations
that the Company thereafter discriminatorily laid off
and/or discharged four of the voluntary organizers on
the Union's in-plant organizing committee and one other
union supporter.
2. Discharge of union organizers
a. Thomas Muensterman
On three occasions in September, high frequency press
operator Muensterman had rebutted the efforts of Plant
Manager Tunstall and Foreman Puckett to persuade him
to forsake his union organizing and be on the Company's
"team." Muensterman was not only on the circulated list
of voluntary organizers (G.C. Exh. 10), but he also was
wearing a U.I.U. hat and passing out union literature
almost daily at the time.
Earlier that summer Puckett had awarded Muenster-
man the operator job over several other bidders because
(in Puckett's words) "He was a very conscientious
worker, he showed a lot of ability," and "I thought he
would be the right man" for the high production job.
Muensterman (who had had 1-1/2 years of college) had
proved to be a good operator. He had never been disci-
plined, and Puckett testified that he had never done any
bad work before.
Before Muensterman's discharge on November 20, as
he credibly testified, he and the other press operator,
Willie Hannebauer, had been having trouble running
chipboard tabletops and both had been complaining to
Puckett. The presses apply pressure to the corners of the
tabletops (shaped like a picture frame), and apply an
electrical charge to speed dry the glue in the joints. One
of the problems was that the corners were fitted with
dowel pins, and some of the dowel holes (cut on an old
Bell miter drill saw which had to be adjusted "constant-
ly" were misaligned, resulting in corners not being flush.
Puckett had replaced the rubber mallets, previously used
by the two operators, with heavier steel hammers to
assist them in smoothing the corners; but in using the
heavier hammers, both operators had cracked some of
the tabletops. On November 19, when he and Puckett
were discussing the problems, Muensterman mentioned
to Puckett that Hannebauer (who had 18 years of experi-
ence and who was operating a larger press) had also
been cracking some of the tops. (Hannebauer did not tes-
tify.)
Early the next morning, November 20, Muensterman
was having the same problem again with the misaligned
dowel holes. As he credibly testified, "Mr. Puckett
walked up to me and he said if you can't run the ma-
chine any better than this we'll get someone else to run
the machine and I said it sounds like a great idea to me."
(Emphasis supplied.) He proceeded to tell Puckett about
the misalignment problem, because "We had 5000 [table-
tops] we had to get out by the end of the month." But
Puckett told him, "Go home," and escorted him out of
the building. Muensterman was "pretty frustrated" the
next day about what had happened and took the day off.
When he went for his check the following day and asked
if he was fired, he was given two paychecks, indicating
that he was. (The Company attacks Muensterman's
credibility, but he impressed me by his demeanor on the
stand as being a most conscientious witness, doing his
best to recount accurately what happened.)
I do not believe Foreman Puckett's account. He
claimed that there had not been any problems with the
dowel pins fitting properly; that Muensterman had pro-
duced 40 tops an hour the day before but only 12 tops in
1.4 hours that morning (whereas Muensterman credibly
testified that he had been averaging 60 to 80 tabletops a
day); that Muensterman had not mentioned a probletn
with dowel pins the day before; and that he was never
aware of operator Hannebauer cracking any tabletops.
According to Puckett, he asked Muensterman that
morning if he was having problems and Muensterman
said he did not want to tear the tops up. "I told him I
didn't want him to tear them up but I wanted him to
build some and if he couldn't do it, I would get some-
body that could." Puckett then claimed, "He threw his
hammer into the press [credibly denied by Muensterman]
and told me to get someone. I said okay you're fired, get
out of the way I will get somebody else." Later Puckett
claimed that Muensterman "said that is all I am going to
do and he threw the hammer into the press." When
asked why he discharged Muensterman, he claimed,
"For throwing the hammer in the press and saying get
someone else because I am not going to build anymore."
(I note that the company records reflect that Muenster-
man "Quit 11/20/80" (G.C. Exh. 32).)
Based on all the evidence and circumstances, I find
that the Company was looking for pretexts for discharg-
ing the union organizers to assure a victory in any rerun
election, and that Foreman Puckett seized upon Muen-
sterman's response (that "it sounds like a great idea" to
get someone else to run the machine) as such a pretext. I
further find that Puckett fabricated the claims that
Muensterman threw the hammer into the press and that
he refused to build any more tabletops, in an endeavor to
conceal the discriminatory motivation for discharging
him. I therefore find that the stated reasons for the dis-
charge were pretexts and that the Company discrimina-
torily discharged Muensterman on November 20 to dis-
courage union membership in violation of Section 8(a)3)
and (1) of the Act, as alleged in the April 16 complaint.
The Company contends in its brief that the piecemeal
manner in which the pleadings were issued in this case
caused such confusion that it was not given fair notice of
the issues to be litigated, and that therefore the entire
case should be dismissed. This contention obviously has
no merit. The Respondent carefully answered the allega-
tions, despite the fact that they were contained in sepa-
rate documents.
b. William Adams Jr.
(l) His union activity
It was common knowledge that supply room clerk
Adams was one of the strongest union supporters at the
plant, as testified by Material Control Administrator
Steve Montgomery. He continued his union support after
the election.
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to being a voluntary organizer on the
Union's organizing committee, Adams was a witness for
the Union at the hearing in the representation case and
one of the union observers at the election. He handed
out and collected union authorization cards and distribut-
ed union literature. He wore a U.I.U. hat, and began in
late June or early July wearing a union T-shirt daily.
After the election he continued supporting the Union,
wearing the union T-shirt bearing the message, "Be
Wise, Organize."
(2) Denial of wage increase
On October 3, the second day after the election,
Adams again asked his supervisor, Montgomery, for the
annual raise which he claimed was due on his anniversa-
ry date (September 24) and which Montgomery had
promised to check on, as discussed above. This time
Montgomery raised no objection other than the union
activity and election. As Adams credibly testified, he
asked, "Now that the election is over, what about my
raise?" Montgomery responded, "Things are pretty much
the way they were . . . the voting [is] yet to be certified.
And so we are still pretty much the same as we were."
Similarly Montgomery testified that when Adams men-
tioned the raise after the election, "I told him again that
until the election was certified, we couldn't do anything
because it could be misconstrued and be used against us."
The General Counsel contends that the Company re-
fused to award the benefit solely because of the election
campaign and violated Section 8(a)(1) and (3) of the Act.
The Company contends that Adams was not entitled to
the annual raise because he had not been in his position
for the entire year (having become the supply room
clerk in May) and because of his absenteeism. I find the
Company's contentions to be afterthoughts. Montgomery
said nothing about such an interpretation of the Compa-
ny's wage policy (G.C. Exh. 48), at the time and, con-
trary to Montgomery's discredited claim, he had never
mentioned Adams' absenteeism in connection with the
annual increase. I agree with the General Counsel and
find that the Company's October 3 denial of Adams'
scheduled annual wage increase, solely because of the
employees' union activity in seeking recognition of the
Union through the election, violated Section 8(a)(3) and
(1) of the Act.
I note that Foreman Puckett testified that one of the
employees in a departmental meeting in his office asked
about a raise, and that he said "as long as there is a union
campaign, there won't be any raises for anybody." The
General Counsel's brief contends that telling employees
they are being denied a wage increase solely for that
reason is coercive and violates Section 8(a)(l) of the Act.
However such an allegation was not made in any of the
complaints, and I find that that issue is not before me.
(3) His discharge
On October 22 Adams had an unexcused absence, his
first since he became a supply room clerk in May. On
October 24 his supervisor, Montgomery, gave him a
written warning for excessive absenteeism. Although he
had only one unexcused absence since May 1, he had a
total of 14 excused absences during that period -of time.
(Adams' personnel file contained notes or slips (G.C.
Exh. 56) from a lawyer for appearance in court, from his
doctor for illhesses of himself, his wife, and his daughter,
and from the hospital.) On October 30, Montgomery
gave him his 15th excused absence, for tests at the hospi-
tal and doctor's treatment. I find that the General Coun-
sel has failed to prove that the October 24 disciplinary
warning was unlawfully motivated.
Bruce Williams, the former acting plant manager,
became Adams' supervisor on November 3. The next
day, November 4, Adams was absent 4.5 hours. When he
arrived at the plant with a slip from his doctor, he ex-
plained to Williams he had tried to correct his attend-
ance but this was something unexpected. As Adams cre-
dibly testified, Williams "said my absenteeism had to be
corrected," that Adams' excuses had always been good
in the past, but "even good excuses turn bad after a
while." Adams agreed to try to correct the attendance
problem.
After this conversation, Adams' attendance sharply im-
proved. As testified by Williams, in the next 4 months
(from November 4 to March 2) he found no fault with
Adams' attendance except for his absences on December
11 and February 25. On both occasions Adams was ill:
on December 11 from an adverse reaction from a penicil-
lin shot, and on February 25 when he was too sick to
come to work.
As credibly testified by Adams, who impressed me as
being an honest witness, he and Williams "talked on a
casual type basis" when he returned to work on Decem-
ber 12. Williams asked what was wrong with him yester-
day, and he said he was sick from the penicillin shot.
Williams asked about his part-time job (working a maxi-
mum of 35 hours a month on apartment maintenance)
and said Adams had been looking pretty tired the day
before. Williams again cautioned him about his absentee-
ism and said it was not acceptable. Adams positively
denied ever telling Williams he had been too tired to
come to work. He was also positive that Williams "never
said I would be dismissed," but "just said any of my ex-
cuses were not any good."
Between that time and Adams' next unexcused absence
2-1/2 months later, Plant Manager Tunstall and Foreman
Stone had decided to hire new employees rather than
recall two other union organizers who had been "laid
off," as discussed below.
Beginning the last week in January, the plant went on
a 4-day week, and the plant was closed the entire second
week of February. It was during this slow period when
Adams was next ill on Wednesday, February 25. He
called in about 6:45 a.m. and left a message for Williams
that he was sick and that if he felt better by noon he
would come in. The next day Williams asked him where
he was, "And I told him I was home sick and he didn't
ask if I had gone to the doctor, I just told him I did not
go to the doctor, but I had had a refill on a prescription
I had got prior to that, and that was all that was said
about it."
The plant was closed again that Friday. At quitting
time Monday, March 2, Williams called Adams to the
160
SCHNADIG CORPORATION
office and said "since you missed Wednesday . . . I am
sorry I [have] to fire you." Williams said he had done a
good job when he was there but "nobody does a good
job when they're not here." Williams did not give him a
discharge slip, and said nothing about having previously
given him a final warning or having placed any disciplin-
ary memos in his file.
(4) The Company's defenses
When called as a defense witness to explain his reasons
for discharging Adams, Material Control Administrator
Williams relied on two memos which he had placed in
Adams' file, but he did not testify when he had placed
them there. The General Counsel contends that the first
one, dated November 2 (G.C. Exh. 55b), was a fabrica-
tion. I agree, and find that it was written and inserted in
Adams' file at some later date. Williams positively testi-
fied that he had a conversation with Adams on that date,
but Williams had recalled the wrong date whenever he
wrote the memo. November 2 was a Sunday, when the
plant was closed.
I find that the December 12 memo (G.C. Exh. 55c)
was also fabricated. It states that Williams talked to
Adams on December 12 about the December 11 absence,
that "he explained he was working another job in the
evenings (part time) and he was so tired he could not
make it in," and concluded: "In view of Bill's past
record I told him he would be dismissed the next time he
had an unexcused absence." (Emphasis supplied.) Thus,
according to this defense, Adams had given Williams a
too-tired-from-other-job excuse for missing work on De-
cember 11 without being fired at once, and Williams had
placed a final warning in the file without giving Adams a
copy. Williams testified that Adams said "he was just too
tired to come to work because he was working another
job and worked late on it, and I just said no more unex-
cused absences or you're discharged." (Emphasis sup-
plied.) Williams did not impress me favorably as a wit-
ness and I discredit this testimony.
Williams claimed on the stand that he did not recall
any discussion with Adams on Thursday, February 26,
about his February 25 absence, although the discharge
slip (G.C. Exh. 54), whenever it was prepared, stated
that Adams "returned the following day & said he was
sick but did not have a Doctors excuse." Williams testi-
fied that he waited until Monday to discharge Adams be-
cause Plant Manager Tunstall was out of town Thurs-
day. Finally he answered, "Absolutely," when asked by
company attorney Schiff: "And it's your testimony that
during your previous discussions with Bill prior to his
February 25 absence, that you had explained to him that
any more absences would result in his dismissal?" Wil-
liams appeared willing to give whatever testimony
would help the Company's cause.
I do not doubt Williams' testimony that he waited
until Monday to get Plant Manager Tunstall's approval
to discharge Adams. (Tunstall was also involved in the
December 5 "layoff" of two other union organizers,
Conder and Brooks, and he had been personally rebuffed
by union organizer Muensterman before Muensterman's
discharge.) However, Williams knew that Adams was
sick and had not gone to a doctor; Williams did not ask
to see the prescription refill; Adams had sharply im-
proved his attendance; and 2-1/2 months had elapsed
since Adams missed work because of the adverse reac-
tion to penicillin. It was under these circumstances that I
find the Company fabricated the final warning memo for
Adams' file, without offering any explanation for not
giving him a copy. I further find that the Company
seized upon Adams' absence as a pretext, and discrimina-
torily discharged him to continue ridding the plant of the
union organizers to assure a victory in any rerun elec-
tion. I therefore find that the March 2 discharge, and the
placing of the spurious November 2 and December 12
disciplinary memos in his file, violated Section 8(a)(3)
and (1) of the Act.
3. "Layoff" of union organizers and supporter
a. Layoff or discharge
Because of slow business, Plant Manager Tunstall de-
cided to lay off employees on December 5. In the pack-
ing department where six employees were included in
the layoff, Tunstall and Packing and Shipping Foreman
Stone decided to "lay off," out of order of seniority, the
two remaining union organizers in that department, upfit-
ter Richard Conder and packer and upfitter Susan
Brooks, and a union supporter, repair parts filler and
glass packer Mary Stevens. I note that about a week
before the election, Stone had indicated his concern
about the union organizing in his department. He told
Stevens "that it looked bad [for] him because almost all
of his employees had signed a union card. Two other
employees in that department had been union organizers,
James Hall and Micheal Baker (G.C. Exh. 10), but they
were no longer employed. (The company records show
that Hall quit October 30 and Baker was discharged Sep-
tember 4 (G.C. Exh. 32).) Since the layoff, the Company
hired five new employees in the packing department, on
February 3, 5, 17, and 25 and March 2, but it did not
recall Conder, Brooks, or Stevens.
On December 5 the three employees were told they
were being laid off. The evidence is clear, however, that
the Company had no intention of ever recalling them.
The evidence discloses that the Company made an un-
announced decision not to recall the laid-off employees,
while at the same time making a maneuver which, in
connection with a wage reduction, would enable it to
claim that it believed the laid-off enployees would not
want to return to work. Adopting the "1981 Rate Scale"
(G.C. Exh. 42), effective January I (replacing the old
wage scale and grades), the Company changed wages,
placing the job titles in seven instead of five wage
grades. (The rate ranges for the lowest two grades were
reduced, In grade I from S3.78-$4.62 to S3.35-S3.65 and
in grade 2 from $3.93-S5.31 to S3.65-S4.05, and the rate
range for the highest grade was changed from S4.30-S8
for the old grade 5 to $6-S6.80 for the new grade VII.)
The Company then took the action to justify its not re-
calling the laid-off employees. It permitted all of the em-
ployees then on the payroll to retain their current wage
rates unchanged, but it decided that the laid-off organiz-
er and union supporter must return under the lower
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage scale. It did so, despite Tunstall's admission at one
point that if the laid-off employees had a good work
record, "we'd be better off to have them than somebody
brand new."
Tunstall would not admit that he had decided not to
recall the laid-off employees. He testified:
Q. In other words, are these people really laid
off, or are they terminated, Mr. Tunstall? The way
you talk, I'm not sure.
A. They're laid off-not terminated.... It's not
that we didn't want to call them back, we felt like
they just wouldn't take it-the lower wage.
Foreman Stone was more candid. Having rejected em-
ployee Brooks' offer to return at the lower wage, he ad-
mitted that the Company had decided not to recall the
laid-off employees:
Q. Why did you hire someone new before you
recalled Rick Conder to work?
A. Because after conferring with Joe Tunstall as
to whether or not we would be calling anyone back
we decided that it was probably in our best interest
that we did not call any of the people back. We had
changed our wage scale and they would be coming
back at a much lesser wage.
Q. And why was this that you and Mr. Tunstall
agreed not to recall any of those people who had
been laid off?
A. Because we were trying to get our plant set
up with where the people as they come in they
would be starting at less money ....
However, it is undisputed that he concealed this decision
from the laid-off employees at the time. In February,
when Brooks went to the plant and inquired a second
time about being recalled, she asked Stone why they
were hiring new employees "if we were all on laid-off
status and hadn't been called back." Concealing the truth
from her, he responded that he did not know that they
had not been called back. He then claimed "that they
were bringing some of them back at minimum wage,"
and "I told him that if they called me back at minimum
wage that I would come back, that it was better than'un-
employment." Brooks was still not recalled.
I find that the Company was discriminatorily motivat-
ed in reducing the wages of Conder, Brooks, and Ste-
vens, then treating them as discharged.
b. Richard Conder
Upfitter Conder had rebuffed Foreman Stone's efforts
to persuade him to vote for the Company and had in-
stead signed the Union's list of voluntary organizers, dis-
tributed union literature in the smoking area of the pack-
ing department, passed out union cards, wore a union T-
shirt, and since September continued to wear a U.I.U.
hat.
It was on September 5 when Stone interrupted Conder
and other packing department employees at their work
and passed out Plant Manager Tunstall's September 4 an-
tiunion letter (G.C. Exh. 31, detailing the U.I.U. and
local's income and expenses and concluding by asking
what the Union could guarantee them for their money
"other than dues, fees, assessments, possible strikes and
fines?") for them to read before resuming work. While
discussing the leaflet with Conder, Stone "asked me
what could a union do for me that the company has not
already done, that the company [gave] me a job and ev-
erything." Instead of being evasive or indicating support
for the Company in its one-on-one campaign, Conder re-
sponded, "I [will] spend my money any way I want to, it
is my money." He later became a voluntary organizer.
It was obvious before December 5 that the Company
was laying the groundwork for discharging him, by issu-
ing him a disciplinary warning on November 4 and a 3-
day suspension on November 7. At the time, as admitted
by Plant Manager Tunstall at the hearing, Packing Fore-
man Stone "needed all the extra help he could get" to
work overtime, upfitting and packing the last contract of
curio tables. Stone admittedly would go to other depart-
ments and ask for volunteers.
Stone was aware that Conder and his father were
riding to work with an employee in another department,
and that Conder had no way of getting home if he
worked an hour overtime with the other packing depart-
ment employees unless Stone would permit the driver
·also to work overtime. (The packing work was un-
skilled.) Stone was permitting the wife of one packing
department employee to work overtime with her hus-
band, in order that she would not have to wait in the
office for him before going home together; yet Stone ad-
mittedly did not offer an opportunity to work to the
driver of the car in which Conder was riding to make it
possible for Conder to have a way home, 30 miles away.
Conder explained the situation to Foreman Stone to no
avail. Rather than be stranded at the plant without a
ride, Conder rode home without working the assigned
overtime. Stone wrote him a written warning on Novem-
ber 4, stating that Conder refused the overtime "due to
lack of transportation. You are obligated to your job.
Transportation is not our problem." On November 7
Stone gave Conder a 3-day suspension, with a "Final
warning. Reoccurrence means dismissal." (G.C. Exh. 29.)
That Saturday, November 8, Conder's father was able to
borrow a car, but Stone refused to permit Conder to
work the assigned Saturday overtime because of the sus-
pension (extending the suspension to 4 days).
Conder filed a grievance, complaining about the unfair
treatment and the fourth day of the suspension, and stat-
ing that "arrangements are made for other car pool em-
ployees, for all to work over." Stone took the grievance
and returned it the same day with both his and Tunstall's
answers. Stone's answer on the grievance stated that
Conder "was treated more than fair. He is obligated to
his job. This means that if he is needed to work over-
time-Transportation is his problem-NOT OURS.
Prod. problems schedule overtime. Not employee car
pools. His record speaks for itself." (G.C. Exh. 30.)
Without giving Conder the opportunity to be heard in a
meeting first with the production manager and secondly
162
SCHNADIG CORPORATION
with the plant manager, as required in steps 2 and 3 of
the Company's grievance procedure (G.C. Exh. 52),
Tunstall stated in his written response, "I feel that Mr.
Stone had justification for his action with this employee.
We do not favor any employees in enforcing our policies
& procedures."
After considering all of the circumstances, I find that
the Company issued the warning and suspension because
of Conder's union activity and to lay the basis for a dis-
criminatory discharge, thereby violating Section 8(a)3)
and (I) of the Act.
When asked why he chose Conder for layoff, Foreman
Stone testified, "I had just [gone] through a period of
some stiff disciplinary action on Rickey due to his failure
of responsibility toward his job obligation. Also I had
had a lot of trouble keeping Rick productive, he had a
tendency to wander off from his job" and he took a lot
of supervision. I find that the first reason was for a dis-
criminatory purpose, and the other purported reasons
were mere makeweight, referring to his early employ-
ment in the department and his conduct during the elec-
tion campaign. I therefore find that the Company's selec-
tion of Richard Conder for layoff of December 5 and its
decision not to recall him were discriminatorily motivat-
ed, to rid the plant of another union organizer, and
therefore violated Section 8(a)3) and (1) of the Act.
c. Susan Brooks
Voluntary organizer Brooks assisted in the organizing,
wore a U.I.U. hat daily, distributed union literature, and
served as union observer at the election. At that time she
was working in the assembly department under Foreman
Gunther, with whom she had an argument when he en-
deavored to turn her against the Union. This was on
August 19, the date of one of Plant Manager Tunstall's
antiunion letters (G.C. Exh. 34), accusing the Union of
misleading the employees). Gunther gave her a copy
while she was working on the assembly line, asked her
why she supported a union, and talked against the
Union. She argued with him and told him how beneficial
a union would be.
About the first or second of November, Brooks was
transferred to the packing department where she worked
as a packer and upfitter. On December 5, Gunther was
shorthanded in the assembly department and Brooks
worked there on the line that day. About 3 o'clock she
was called to Packing Foreman Stone's office and laid
off. As she credibly testified, Stone said he "was told
that he had to lay me off," and "that it was not of his
choice and if it had been" his choice, "I probably
wouldn't" have been.
Claiming at the hearing that he had chosen her for
layoff, Stone testified that as he went through her past
absentee record "I noted that she had a real bad attend-
ance record and it was based on that that I decided to
lay her off." However, he did not mention her attend-
ance at the time of her layoff or at either time when she
went to the plant and inquired about when she would be
recalled. While working in Gunther's department she
had been absent many times in connection with marital
problems (visiting her lawyer or attending court in con-
nection with a divorce, restraining order, child support
for a handicapped child, etc.), and had had a number of
excused absences for medical care for herself and obtain-
ing assistance for the child. Because Stone admittedly
had not raised any attendance problem with her before
her layoff and never mentioned her attendance after-
wards, I infer that he regarded the causes for her ab-
sences to have been largely in the past.
Having found, as credibly testified by Brooks, that
Foreman Stone said at the time that he was "told that he
had to lay" her off, I infer that Plant Manager Tunstall
(who was involved in the decision to discriminatorily
discharge or lay off other union organizers) did not
merely approve Brooks' layoff (as Tunstall and Stone
claimed at the hearing) but was the one who directed
Stone to lay this union organizer off along with union
organizer Conder. I further find that the Company relied
on Brooks' past absenteeism as a pretext for the layoff,
despite Stone's preference not to lay her off out of order
of seniority. I therefore find that the Company discrimin-
atorily laid Brooks off and refused to recall her because
she was a union organizer, in violation of Section 8(aX3)
and (1) of the Act.
d. Mary Stevens
Stevens was not a union organizer, but the evidence
indicates that during the election campaign she was in-
volved with organizer William Adams in suspected union
activity, that the Company knew she had signed a union
card, and that it suspected that she was violating the no-
solicitation rule in campaigning for the Union while re-
fusing Foreman Stone's request that she join other em-
ployees in handing out antiunion leaflets.
In September, when Stone was complaining "that it
looked bad [for] him because almost all of his employees
had signed a union card," she told him she had signed
one "but that wasn't reason that I had to vote for the
Union." However, she had not been willing to join in
campaigning against the Union. One morning after Sep-
tember 17, Stone asked her to go out to the parking lot
and help hand out some hand-written leaflets "and I
didn't go out there." (This is not alleged as a separate
violation.)
On September 17 Adams (one of the "strongest union
supporters" who was discriminatorily discharged March
2, as found above) went to Stevens' work station to read
a company leaflet Foreman Stone had passed out and to
talk with Stevens about work (regarding some broken
glass). Stone saw them talking and suspected that Ste-
vens was violating the no-solicitation rule. Later in the
day he called her to the office, said he did not want her
and Adams talking, that "he figured that we were talking
about the Union and . . . he didn't want us talking union
on company time." Adams overheard Stevens tell an-
other employee what Stone had said and filed a griev-
ance, complaining that "Foreman Danny Stone restricted
the free and normal line of communications between his
packing dept, employees and the storeroom clerk, due to
suspected union activity or talk." Although this contro-
versy was soon settled the next day, with Stone explain-
ing to Adams that "as long as it is work related there is
no restriction on conversation," I infer that this episode
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labeled Stevens as a union supporter, who the Company
believed was spending working time campaigning for the
Union. (I find that the misunderstanding on Stevens' part
does not support the allegation in the first complaint that
on September 17 the Company "restricted its employees
from talking to their fellow employees.")
At the time of the December 5 layoff, Stevens' serv-
ices were, needed. She was the only repair parts order
filler (with the responsibility to ship customers' substitute
parts), and her other primary responsibility was packing
glass. During the last 2 weeks of her employment, she
was unable to fill the orders for repair parts because
"they didn't have anyone at that time to pack the glass"
and she was working full time doing that. After the
layoff the amount of glass packing increased and differ-
ent employees had been assigned to do her work. Stone
himself had been doing part of it.
Stevens had worked under. Foreman Stone since they
worked together at the plant for Glenwood. (From
about 1975 to 1976 she was the packing foreman herself.)
It is undisputed that Stone had never disciplined her, but
had complimented her. He had told her "that he appreci-
ated what I had done for him," that "I had helped him
out a lot because . . . a lot of new people came in that
didn't know what they were doing and I would show
people what to do," and that "he appreciated how much
help that I had given him while he was foreman."
When asked why he selected Stevens for layoff, Fore-
man Stone testified that "she took an awful lot of super-
vision to keep her productive," explaining that she "had
a habit for wandering off and talking to other
people.... She would bring a cooler with all types of
food. She was constantly over there fixing herself crack-
ers and peanut butter, fixing herself sandwiches and I
was always having to go tell Mary wait till break, wait
till lunch, Mary stay busy .... Eating, wandering off
the job, gone to the water fountain, going to the rest-
room and such." Even if this testimony were not exag-
gerated, it was largely history. On October 22, Plant
Manager Tunstall posted a notice (Resp. Exh. 1) that
eating and drinking were not allowed during worktime,
and she and other employees had discontinued doing so
for 6 weeks before the layoff. The "wandering off and
talking to other people" undoubtedly referred to her sus-
pected union activity during the election campaign.
Stone did not object to her going about the plant to find
the necessary parts, glass, etc., to perform her work.
Moreover Stevens, who impressed me as being a candid,
honest witness, credibly testified that Stone never talked
to her about wandering off the job or not working fast
enough. He did talk to her about getting ice from her
cooler to make ice water and about having too many
drinks, but this was before the October 22 notice was
posted. Regarding going to the restroom several times
while working, that did happen on one occasion when
she was sick.
After weighing all of the evidence concerning Stevens'
selection for layoff on December 5, I find that the Com-
pany saw the layoffs as an opportunity to eliminate from
the payroll an enployee who was involved in the Sep-
tember 17 grievance with organizer Adams and who was
suspected of joining him in soliciting for the Union. I
find that the reasons Foreman Stone gave for selecting
her were pretexts. I therefore find that the Company dis-
criminately laid her off on December 5 and thereafter
failed to recall her in its continuing unlawful campaign
to defeat the Union, in violation of Section 8(a)(3) and
(1) of the Act.
D. Refusal To Bargain
1. Majority status and refusal
a. Appropriate unit and cards signed
The parties agree, and I find, that the following is an
appropriate bargaining unit:
All production and maintenance employees of the
Employer at its Henderson, Kentucky facility, in-
cluding all plant clerical employees, the shipping
clerk, the stores clerk, the janitor/sweeper, the
truckdriver and the lead person in the finishing de-
partment; but excluding all engineering department
employees, the engineering clerk, the sample shop
trainee, the pattern maker, the jigs/fixtures maker,
the tool grinder, all office clerical employees, the
typist/receptionist, the engineering clerk, the inven-
tory control clerk, the payroll clerk, the production
control clerk, the draftsman, the general clerk-
senior, the draftsman routings, all inspectors, all
professional employees and all supervisors as de-
fined in the Act.
The parties agree that there were 126 employees in the
bargaining unit on July 31 (G.C. Exh. 32, excluding
Bertha Dusek and Carol Sutton who were hired August
1). By July 31 a total of 70 of the bargaining unit em-
ployees (Adams, Darlene Baker, Michael Baker, Barger,
Below, Bowley, Brooks, Kenneth Carter, Sr., Carver,
Catilla, Clement, Hubert Conder, Richard Conder,
Charles Damrath, Charles Dance, DeSpain, Johnny
Duncan, Lisa Duncan, Francis, Fruit, Jackie Gibson,
Goodlett, Goolsby, Grisham, Dan Grossman, Pamela
Grossman, Hall, Hare, Terry Hayden, Gary Hill, Lucille
Hill, Hoggard, Howell, Jewell, Johnson, Keeper, Kim-
berly Knott, Majors, Minton, Jeffrey Monks, Debra
Moore, Garry Moore, Morris, Muensterman, Nally,
Dianna Oldham, James Oldham, Overton, Page, Phelps,
Loyal Poore, Rick Poore, Roybal, David Samsil,
Sawyer, Marilyn Shelton, Sylvia Shelton, Betty Skid-
more, Louise Skidmore, William Smith, Stevens, Mary
Stone, Ronnie Stone, Ada Sutton, Theriac, Utley, Wat-
kins, Wilkerson, Williams, and Wint) had signed union
authorization cards. These 70 cards were 6 more than
the 64 cards needed for a majority.
All 84 of the cards which were signed, during the
period from May 31 through September 29, read at the
top (under the name of the Union):
I do hereby designate and authorize the Upholster-
ers' International Union of North America, AFL-
CIO, and its representatives to act as my representa-
tive for the purpose of collective bargaining in re-
164
SCHNADIG CORPORATION
spect to rates of pay, wages, hours of employment
and other conditions of employment.
The Supreme Court specifically found in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575, 606 (1969), that
the cards used in General Steel Products, 157 NLRB 636,
643 (1966), bearing this identical language, were "single-
purpose cards, stating clearly and unambiguously on their
face that the signer designated the union as his repre-
sentative." (Emphasis supplied.)
b. Contested cards
In an appendix to its brief, the Company contends
without explanation that 3 of the 70 cards which the
Union had obtained by July 31 were "Union Cards Mis-
represented" and should therefore not be counted toward
a majority. One of the cards (G.C. Exh. 17-39) was
signed on June 11 by operator Wallace Carver who had
been promoted to assistant foreman sometime before he
testified. When asked by company counsel what he was
told when voluntary organizer Theriac gave him the
card, Carver said nothing about any kind of fee; but
when asked "Did [Theriac] ever say anything to'you
about initiation fees or union fees?" Carver answered, "It
seems to me like he said the ones that sign the card
wouldn't have to pay the fee." Thereafter when he was
repeatedly asked what Theriac had told him (as in his
pretrial affidavit in which he was asked what reason was
given for asking him to sign a card), he could not re-
member Theriac saying anything about a fee. None of
the other 75 employees who authenticated their own
cards mentioned anything being said about a fee. Carver
appeared less than candid when he answered the coun-
sel's question "about initiation fees or union dues." I dis-
credit the testimony as being fabricated, and reject the
Company's claim that the card was misrepresented to
Carver. I note that Carver apparently had a change of
heart before the hearing. At the time he was signing his
own card, he was soliciting employee Martha Nally to
sign hers (G.C. Exh. 17-40), telling her the plant was in
bad shape.
The other two cards which were contested without
explanation in the appendix to the Company's brief as
misrepresented were signed by Brenda Hoggard (G.C.
Exh. 17-72) and Gregory Hope (G.C. Exh. 17-36). Both
cards were challenged in the brief itself as cards which
had been solicited for the purpose of getting an election,
as discussed below. Hope's card, however, is not in issue;
it was not signed by July 31, when the Company refused
to recognize and bargain with the Union, but was signed
on August 6. Hoggard had been laid off by Whirlpool in
Evansville, and earlier had stated that she did not think
she would go back because she did not like to drive
across the bridge to Evansville in the wintertime.
In its brief the Company contends that "At least seven
employees [including Hoggard and Hope] testified that
when their cards were solicited there was mention made
that the purpose of signing a union card was to get an
election." The evidence discloses the following: (I) Em-
ployee Charles Dance, who identified his card (G.C.
Exh. 17-8) as a card to have the Union "represent us in
bargaining with the company, testified that he could not
remember exactly what was said to him at the time he
signed the card but it was "To have the . . . Union rep-
resent us in having an election." (2) Hope's card, as indi-
cated above, is not in issue. (3) As discussed above, lead-
man Carver gave fabricated testimony about a fee being
mentioned when he was given the card. He also claimed,
"I believe [Theriac] said he needed all the signed cards
he could get in order to hold an election." I consider
Carver's testimony too untrustworthy to rely upon it. (4)
Employee Kenneth Carter, Sr., testified that when Ther-
iac gave him his card (G.C. Exh. 17-54), Theriac told
him it was "so we could get enough signatures or cards
to have an election which I already knew that .... to
get the union in, to get an election to bring a union in."
(5) Employee William Smith testified that when he
signed his card (G.C. Exh. 17-57), he was told "if you
get enough cards we would be able to vote for the
union," and that there "Would just be an increase in
pay." (6) Employee Ronnie Stone testified that when he
signed a card (G.C. Exh. 17-68), Theriac "went over ev-
erything pretty thoroughly with me .... that there was
no promise that by me signing a card that a union would
be in just that we needed the cards to be signed before
we could even get a vote. .... By signing the card that
that didn't mean that the union would come in. All that
meant was that we possibly would get an election if we
got enough of the cards signed." He also testified, "Sure
that was the idea of getting the cards" to get a union or-
ganized at the plant. (7) Hoggard testified that "As I
recall the only thing said about an election, is that they
were trying to get a union election . . . to vote in the
union," that (reading from her pretrial affidavit) volun-
tary organizer Loyal "Poore told me that the reason he
was asking me to sign a card was to get enough of the
cards signed so we could have an election, and that "he
said he thought we needed a union and I remember I
agreed."
In Gissel, supra at 606-608, fn. 27, the Supreme Court
specifically approved the Board's Cumberland doctrine
(Cumberland Shoe Corporation, 144 NLRB 1268 (1963),
enfd. 351 F.2d 917 (6th Cir. 1965)), which was explained
and reaffirmed by the Board in Levi Strauss & Co., 172
NLRB 732, 733 (1968), as follows:
Thus the fact that employees are told in the
course of solicitation that an election is contemplat-
ed, or that a purpose of the card is to make an elec-
tion possible, provides in our view insufficient basis
in itself for vitiating unambiguously worded author-
ization cards on the theory of misrepresentation. A
different situation is presented, of course, where
union organizers solicit cards on the explicit or indi-
rectly expressed representation that they will use
such cards only for an election and subsequently
seek to use them for a different purpose; i.e., to es-
tablish the Union's majority independently. In such
situation the Board invalidates the cards for major-
ity computation because the nature of the represen-
tation is such as to induce a conditional delivery for
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a restricted purpose and there is apparent fraud
when that restriction is exceeded." ?
The foregoing does not of course imply that a finding of rep-
resentation is confined to situations where employees are expressly
told in haec verba that the "sole" or "only" purpose of the cards is
to obtain an election. The Board has never suggested such a
mechanistic application of the foregoing principles, as some have
contended. The Board looks to the substance rather than to form.
It is not the use or nonuse of certain key or "magic" words that is
controlling, but whether or not the totality of circumstances sur-
rounding the card solicitation is such as to add up to an assurance
to the card signer that his card will be used for no purpose other
than to help get an election.
Under this court-approved Cumberland doctrine, the
totality of the circumstances convinces me that none of
the six employees who signed their cards before July 31
did so under what amounted to an assurance that the
card would be used for no purpose other than to help
get an election. I therefore reject as unfounded the Com-
pany's contention that the cards are invalid because of
what the employees were told at the time they signed
the cards.
c. Belated contention
As the organizing campaign progressed, the Union
gave the card signers an opportunity to withdraw or
cancel their authorization cards if for any reason the em-
ployees did not want to authorize the Union to represent
them. The Union sent or delivered to each card signer an
acknowledgment of receipt of the authorization card,
with a small, pocket-size certification card (G.C. Exh.
11) from the U.I.U. president, certifying that the card
signer "has indicated a belief in the principles of Collec-
tive Bargaining by signing an authorization card" for the
Union. None of the union authorization cards were repu-
diated.
No contention was made until the afternoon of the
seventh and last day of the hearing that the employees
were unable to understand the union authorization cards
when they read and signed them. In the absence of a
stipulation that various uncontested cards were authentic,
a total of 76 employees and former employees had been
called to authenticate their own cards. Not a single one
of these card signers who testified that he read the card
gave any indication that he was unable to understand the
meaning of the card. (It is clear that two employees who
could not read and write understood what the card
meant: Loyal Poore was one of the active voluntary or-
ganizers and Douglas Wilkerson had the card explained
to him. Employees Kenneth Carter, Sr., and Roger
Keeper, who have difficulty reading, had the card read
to them.) I note that on one occasion, on the fourth day
of the hearing, the company counsel questioned the read-
ing ability of one former employee, Mary Stone, when
she testified that she had no trouble reading although the
organizer had completed her card for her after she had
read and signed it:
Q. Would you take a look at the card there and
tell me if you can read that first line starting with
the words I do?
A. I do hereby designate and authorize the Up-
holsterers' International Union of North America-
Q. That is good....
It later developed that when the Company's last defense
witness, on the seventh day of the hearing, produced se-
lected employment applications from the Company's files
(Resp. Exh. 29), Stone's application was included. It indi-
cated that she "went to the 8th grade."
On the afternoon of the last day of hearing, after the
76th card signer had testified and left the stand and after
it was evident that the Union had obtained authorization
cards from a majority of the bargaining unit employees
on July 31 (the date the Company claimed a good-faith
doubt and refused to bargain), the Company called the
proverbial "surprise witness." He was a local university
professor who had majored in education with a special-
ization in reading and who had a doctor's degree and im-
pressive credentials. When asked if he had "an opinion
with reasonable professional certainty as to the reading
level of the language on the face" of the above-quoted
authorization card, he testified that all three of the for-
mulas he had used to analyze the document "indicated
that the level of difficulty of the material was at the col-
lege or beyond level." (Emphasis supplied.)
It appears obvious that this stated "opinion" is absurd,
for such plain, clear language.
When explaining how he arrived at such an opinion,
he testified that he had used 3 out of 35 to 50 different
formulas developed for conducting a statistical analysis
of readability level. One factor was the number of diffi-
cult words: union and representatives being at the sixth to
eighth grade level, designate and International at the eighth
grade level, conditions of employment at the seventh to
ninth grade level, authorize and collective at the eighth
and ninth grade level, Upholsterers' at the ninth to tenth
grade level, and hereby and collective bargaining being at
the ninth to eleventh grade level. Yet, inasmuch as all
these "difficult" words are included in one sentence,
with 81 syllables and 43 words, and the difficulty of the
material is assessed "in an engineering fashion," the
"readability level analysis would indicate that this is [a]
very difficult passage to read and to understand."
I agree with the General Counsel that "These readabil-
ity analysis formulas may be an interesting academic ex-
ercise, but have no practical application," at least insofar
as predicting whether individual employees during an or-
ganizing campaign would understand, upon reading and
signing the authorization card, that they were author-
izing the Union to represent them. Although the profes-
sor impressed me, from his demeanor on the stand, as
being a partisan witness doing his best to support the
Company's cause, he did admit at one point upon being
questioned by the General Counsel that the test results
simply attest "to the level of difficulty of this passage.
Now, given an individual, I'm not predicting how many
people can or cannot read and understand this card."
Even assuming that his readability level analysis actually
came to the conclusion that the union card was at the
"college and beyond level," I find the analysis irrelevant
to the issues in this case.
166
SCHNADIG CORPORATION
Ignoring the fact that these authorization cards have
been found by the Supreme Court to state "clearly and
unambiguously on their face that the signer designated
the union as his representative," the Company cites in-
stead its "expert testimony that the level of reading diffi-
culty for the language found on the face of the union
cards in this case was at or beyond the college level, plus
or minus one grade level [emphasis supplied]. [Tr. 1306,
1340-1341.]" The reference to the latter transcript pages
is to the place where the professor retracted his earlier
testimony to the extent that he testified that the "estimate
is probably accurate plus or minus one grade level, but at
the college level that becomes really unknown. It could
range from high school to college." (Emphasis supplied.)
The Company then argues, from the employment appli-
cations produced by its last witness, that "Few of the
employees had any college . . . many hadn't even com-
pleted high school," and "Many of these employees did
not even complete the tenth grade." It ignores the evi-
dence of how easily the former employee, Mary Stone,
who had gone "to" the eighth grade as discussed above,
had begun reading the card into evidence until the com-
pany counsel stopped her, saying "That is good." It also
ignores the evidence that the employee who read and ex-
plained the card to employee Keeper (who has trouble
reading, as indicated above) was former employee James
Johnson who completed only the eighth grade. (Resp.
Exh. 29).
The Company argues that "In these circumstances, the
General Counsel could not rely on the presumption
which normally flows from an employee's authenticated
signature on the card to establish a clear intent of author-
ization. Instead General Counsel bore the burden of
proving that each employee who executed a card clearly
understood the significance of the document and intend-
ed to authorize the Union to represent him."
As authority for this novel position, the Company cites
Brancato Iron Works, Inc., 170 NLRB 75, 81 (1968), in-
volving a card which is "completely unintelligible" to
the employees because the Italian and Spanish-speaking
employees "did not understand a word of print" on the
union cards printed in English. The Company argues as
follows, omitting any reference to the language barrier
except the word "translated" in the last sentence, and
also omitting from the quoted paragraph the important
first sentence (which I include in brackets), indicating
that the paragraph began with the second sentence:
Regarding the General Counsel's burden of proving
clear authorization by a majority of unit employees,
the Board has explained that:
[At least 10 of the 13 who signed these cards
did not understand a word of print.] In an ordi-
nary case the employee's signature placed on a
standard union card presumptively establishes his
intent to authorize a union to represent him forth-
with-for the card so states clearly. When the
card is completely unintelligible to the employee,
there can be no presumption-a sort of prima
facie case in favor of the complaint, as it were-
that he meant this or that. It would seem that in
such a case something more is required, either by
the employee of what was said to him at the time
and his understanding of the purpose for signing,
or by fellow employees or solicitors of how they
translated or explained the card to him before its
acceptance in writing.
By omitting these clearly distinguishing factors in the
Brancato case, the Company is citing that case as authori-
ty for its novel position, whereas in fact, the case direct-
ly supports the General Counsel's position to the con-
trary. Thus the case holds, "In an ordinary case the em-
ployee's signature placed on a standard union card pre-
sumptively establishes his intent to authorize a union to
represent him forthwith-for the card so states clearly."
Except for the testimony by the professor, the present
case is an "ordinary case," the present union card is a
"standard union card," and the employee's signature
"presumptively establishes his intent to authorize" the
Union to represent him because the card so "states clear-
ly" as held by the Supreme Court in Gissel, supra at 606.
In the absence of evidence to overcome the presump-
tion, I reject as frivolous the Company contention that
27 of the 70 union authorization cards, because they
were signed by employees who were not high school
graduates, are invalid.
In view of the above findings that all 70 of the union
authorization cards are valid designations of the Union, I
conclude that the Union represented a majority of the
Company's 126 employees on July 31, 1980.
d. Refused demand
The Union on July 29 made a bargaining demand
(G.C. Exh. 8) and the Company on July 31 sent its re-
sponse (G.C. Exh. 9), advising that "we have a good
faith doubt that you represent a majority of our employ-
ees" and suggesting an election. Having found that the
employees who signed the 70 valid union authorization
cards constituted a majority of the 126 bargaining unit
employees on July 31, I find, in view of the following
detailed analysis of the necessity of a bargaining order,
that, on and since July 31, the Company violated Section
8(aX)(5) and (1) of the Act by failing and refusing to rec-
ognize and bargain with the Union. Trading Port, Inc.,
219 NLRB 298, 301 (1975).
2. Necessity of bargaining order
In N.LR.B. v. Gissel Packing Co., supra, 395 U.S. 575,
613-615 (1969), the Supreme Court established two cate-
gories of cases in which a bargaining order would be ap-
propriate. In category I are the "exceptional" cases
marked by "outrageous" and "pervasive" unfair labor
practices of such a nature that their coercive effects
cannot be eliminated by the application of traditional
remedies, with the result that a fair and reliable election
cannot be held. In category 2 are "less extraordinary
cases marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority
strength and impede the election processes." The Court
held that in these cases, such as this one, where there is a
showing that at one point the union had a majority, the
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board can properly take into consideration in fashioning
a remedy, "the extensiveness of an employer's unfair
practices in terms of their past effect on election condi-
tions and the likelihood of their recurrence in the future.
If the Board finds the possibility of erasing the effects of
the past practices and of ensuring a fair election (or a fair
rerun) by the use of traditional remedies, though present,
is slight and that employee sentiment once expressed
through cards would, on balance, be better protected by
a bargaining order, then such an order should issue." I
first take into consideration "the extensiveness" of the
Company's unfair labor practices "in terms of their past
effect on election conditions." Id. at 614. The Company
denies all of the allegations of unfair labor practices.
Extensiveness of Violations: While engaging in other co-
ercive conduct, the Company was carrying on a cam-
paign of fear to undercut the Union's majority support.
Under its inexperienced plant management, the Com-
pany was suffering financial losses at the Henderson
plant when the Union began its organizational campaign
in May. As part of its campaign to defeat the Union, the
Company began publicizing and emphasizing its losses by
displaying each month a large poster, announcing the
amount of the losses. After the Union achieved its major-
ity status in late July, the Company replaced its top man-
agement at the plant and took steps "to turn around the
business."
It was in this context that the Company carried on a
campaign of fear, to make the employees believe that if
they voted for union representation, the Company would
close the plant in reprisal. Initially it was the individual
supervisors who conveyed the threat of plant closure.
Thus, while Foreman David Williams was engaged in
the supervisors' one-on-one campaign in the plant to pub-
licize the Company's antiunion arguments among the in-
dividual employees, he told employee Jewell "that rather
than to see the plant under a union right now, that
[Board Chairman] Schnadig could close the plant down
to keep it from happening." Employee Hoggard, upon
hearing rumors of plant shutdown and of a foremen's
meeting concerning the Union, asked Foreman Gunther
if he had been in the meeting and "if he thought they
would shut the plant down if the union were voted in."
Gunther added to the employees' fears by answering that
"yes he thought they would." As Foreman Williams tes-
tified, employees were asking "about the plant being shut
down if the union won," and at some time the supervi-
sors were instructed to answer the questions on plant
closure by saying, "I don't know. I don't know what the
outcome will be."
Thus by the time the top management of the Company
visited the plant shortly before the election, the employ-
ees were fearful that the Company would close the plant
in reprisal if they voted for the Union, and top manage-
ment was fully cognizant of this fear. Consultant Rein-
hold, who was then a company official in charge over
the plant management, spoke to the employees in groups
on September 17 (2 weeks before the October I elec-
tion), telling employees in at least one meeting that he
himself had owned seven plants at one time, that two of
them were union, and that he had closed one and sold
the other. By these and other remarks, he added to the
employees' fear of a company decision to close the plant
if it became union. He was followed on September 22 by
Board Chairman Schnadig himself, who exacerbated the
employees' alarm about plant closure. Schnadig implied
in a meeting of all employees that if he could not stay
nonunion in Henderson, as he expected to do, the plant
would not stay there but go elsewhere, and that they
were intelligent enough to heed his warning.
Thus when the employees went to the poll to vote on
October 1, they were faced with repeated threats that
the Company would close the plant in reprisal, depriving
them of their livelihood, if they voted for union repre-
sentation.
Meanwhile supervisors, in their one-on-one campaign
anong the employees against the Union, were engaging
in coercive interrogation, without informing the employ-
ees of any legitimate purpose for the questions and with-
out giving them any assurances against reprisal.
While carrying on this coercive one-on-one campaign
among the employees during working time, the Compa-
ny maintained (until several weeks after the election) an
overly broad no-solicitation rule, prohibiting union solici-
tation "during working hours," and an overly board no-
distribution rule, prohibiting the distribution of union lit-
erature "on Company premises ... without specific
prior approval of the General Manager." Instead of re-
scinding these rules, or notifying all employees that the
rules did not apply to their soliciting for the Union at
lunch and breaktime or to distributing union literature on
company premises during nonworking time, the Compa-
ny generally did not enforce the rules against those who
were willing to ignore them. When an employee tried to
reach a large number of employees by passing out union
leaflets at the plant entrance (without obstructing the en-
trance), a supervisor told her not to pass them out there,
"that not even a nonunion employee could pass out any
leaflets there, they had to be 18 feet away from the fac-
tory." The maintenance of the invalid no-solicitation rule
while carrying on the antiunion campaign during work-
ing time undoubtedly had an adverse effect, inhibiting
employees in the exercise of their Section 7 rights.
After Board Chairman Schnadig made the coercive,
plant-closure speech, he solicited an employee's griev-
ance, and indicated to her and another employee that he
would remedy the complaint (by furnishing rubber mats
for the employees to stand on). And, in order to further
undercut the Union, Foreman Puckett offered the lead-
ing union organizer, Theriac, a foreman's job, provided
he would take off his U.I.U. union hat and "help us to
defeat the. Union."
Thus the Company was seriously interfering with the
employees' organizational rights while instilling fear that
a union vote would result in the Company closing the
plant in reprisal.
The Company contends in its brief, however, that the
"Majority support in this case, if any, dissipated from
natural attrition such as employee quits, lawful dis-
charges, and other separations from employment. See
Appendix A." To the contrary, the Union's majority
strength on July 31, of 70 card signers to 56 nonsigners,
was undermined by the Company's unlawful campaign to
168
SCHNADIG CORPORATION
the point that the Union lost by a margin of 23 votes, 51
votes to 74 votes, while there had been only 9 separa-
tions of card signers. (Between July 31 and October 1,
there were three discharges (of Michael Baker, Rick
Poore, and one not shown in Appendix A, Douglas Wil-
kerson, see G.C. Exh. 32) and six quits. Of course, it is
unknown how the replacements voted.)
In determining the possibility of holding a fair election
after the Company's unlawful campaign had such a dev-
astating effect on the Union's majority support, I next
consider, in turn, the residual impact of the unfair labor
practices, the likelihood of recurring misconduct, and the
potential effectiveness of customary remedies. In doing
so, I bear in mind that the Board has often emphasized
that it prefers to rely upon its own election machinery
rather than on authorization cards in testing the majority
status of a particular union.
Residual Impact of Unfair Labor Practices: The Compa-
ny has never given the employees any assurances that it
would not close the plant in reprisal if they voted for the
Union. Instead, it has demonstrated its continued deter-
mination to keep the plant nonunion by flouting the Act,
discharging two of the union organizers, and discrimina-
torily laying off two other union organizers and a union
supporter, refusing to recall them. I am convinced that
the traditional order to cease and desist and an order of
reinstatement with backpay, together with a company
offer of reinstatement-even assuming the return of the
unlawfully terminated employees after many months of
litigation-would not successfully eradicate the lingering
effects of the Company's misconduct, particularly the
threats of plant closure. As recently held in Viracon, Inc.,
256 NLRB 245, 247 (1981):
Threats of job loss through plant closure have
long been recognized as being serious unfair labor
practices having a substantial impact on employee
attitudes and reactions and, thus, upon employee
free choice. The Supreme Court acknowledged the
serious coercive impact of such threats in the Gissel
decision.'0 The Court moreover noted the serious
continuing impact of such threats when it made ref-
erence to a study that threats to close or transfer
plant operations were more effective in destroying
election conditions for a longer period of time than
were other types of unfair labor practices. "
We further find that simply requiring the Employer
to refrain from repeating such threats, the tradition-
al remedy, will not erase the effects of this threat
and enable the employees to participate in a free
and uncoerced rerun election. The threat remains in
the employees' memory and its impact lingers long
after the utterances have been abated. 12
10 Id. at 616-620.
" Id. at 611, fn. 31.
12 General Stencils, 195 NLRB 1109, 1110 (1972).
Likelihood of Recurring Misconduct: By the time of the
hearing, the Company had demonstrated in a number of
ways that it would resort to whatever illegal means it
deemed feasible and necessary to defeat union represen-
tation at the plant. It discriminatorily discharged union
organizers Muensterman and Adams at the first opportu-
nity for pretextual reasons. To conceal its discriminatory
motivation, it fabricated claims that Muensterman threw
his hammer into the press and refused to build any more
tabletops, and placed a spurious final warning memo in
Adams' file. It discriminatorily laid off union organizers
Conder and Brooks, as well as employee Stevens because
of her suspected union activity with union organizer
Adams, all three out of order of seniority. Then it con-
nived an excuse for not recalling them. Thus, it made an
unannounced decision not to recall the laid-off employ-
ees, while at the same time making a maneuver which, in
connection with a wage reduction, would enable it to
claim that it believed the laid-off employees would not
want to return to work. It permitted the employees then
on the payroll to retain their current wages, but discri-
minatorily reduced the wages of the laid-off union orga-
nizers and union supporter to provide an excuse for not
calling them. At the hearing Plant Manager Tunstall
falsely testified that "It's not that we didn't want to call
[the laid-off employees] back, we felt like they just
wouldn't take it-the lower wage," contrary to Foreman
Stone's admission on the stand that he and Tunstall had
agreed not to recall the laid-off employees.
The Company thus rid the plant of four union organiz-
ers and another union supporter in order to assure a vic-
tory in any rerun election. After engaging in such con-
tinuing violations, the Company could be expected to
repeat its misconduct to prevent the plant from being
unionized.
Potential Effectiveness of Customary Remedies: I find
that the Board's traditional remedies, short of a bargain-
ing order, would not convince at least a substantial per-
centage of the remaining employees that they would be
protected from a closure of the plant in reprisal or from
discriminatory discharge or layoff if they campaigned
and voted for the Union. The remaining employees have
observed how the Company is willing to flout the Act
by undermining the Union's majority strength, discrimi-
nating against union organizers, and resorting to the tac-
tics of failing to recall supposedly "laid off" employees
while hiring new employees. After many months without
union representation following their organizing drive
which was successful at one point, they would have to
start organizing afresh. The status quo ante would not be
restored, and the Company would have succeeded in its
unlawful purpose of crushing the employees' organiza-
tional efforts.
Under these circumstances I find that even a vigorous
and resourceful application of the Board's traditional
remedies would not be sufficient to dispel the lingering
fear of reprisals for supporting the Union. In fact, such
remedies without a bargaining order would as a practical
matter be putting both the employees and the Company
on notice that the price for engaging in such flagrant
violations of the Act, thwarting the employees' majority
support of the Union and keeping the plant nonunion, is
169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
potential liability for an unknown amount of backpay, a
risk the Company had demonstrated it is willing to take.
Concluding Findings: After balancing all of the compet-
ing considerations (including the preference for relying
on the results of the Board's own elections rather than
on union authorization cards), I find that the possibility
of erasing the effects of the past unfair labor practices
and conducting a fair and meaningful election is slight. I
therefore find that the employee sentiment once ex-
pressed through the union authorization cards would, on
balance, be better protected by the issuance of a bargain-
ing order.
3. Unilateral changes after election
a. October 31 changes
Before October 31, the job bidding policy at the Hen-
derson plant was contained in the job bidding provisions
of the personnel policy manual at the plant (G.C. Exh.
44a, No. 121-21, effective July 1, 1979). The seniority
system, as explained by Plant Manager Tunstall, pro-
vided for both department and plant seniority in layoffs
"and the right to bump someone else." The absentee and
attendance program was contained in the absenteeism
and tardiness provisions of the corporate personnel
policy manual (G.C. Exh. 43, No. 703, pp. 1-4, effective
December 1, 1979) and in the time off for personal rea-
sons provisions of the personnel policy manual at the
plant (G.C. Exh. 51, No. 412-21, effective July 1, 1979).
It is undisputed that Plant Manager Tunstall met with
employees October 31 and announced new policies, as
shown in his outline for the meeting (Resp. Exh. 13).
Tunstall's testimony includes examples of the changes he
announced. The job bidding procedure would be re-
placed with a transfer procedure, with the employee ap-
plying to the foreman to be considered. "I . ..just did
not believe in that type of a set up for laying off. And I
announced at that meeting that our layoff will be based
on us trying to keep our plant running efficiently ... ."
If an employee is absent 2 days or more a month, he "is
subject to some corrective action," but "we will accept
doctor's excuses, hospitals and things like that."
It is undisputed that these changes were made unilater-
ally, without notice to the Union. (Concerning the Octo-
ber 22 notice which the Company posted on the bulletin
board to change the smoking areas to comply with insur-
ance company recommendations for eliminating a fire
hazard, I find that the General Counsel has failed to
prove that, under the circumstances, there was a require-
ment to bargain or a discriminatory purpose.)
b. Layoffs and wage changes
On December 5, because of adverse economic condi-
tions, the Company began laying off a large part of the
bargaining unit. Without offering to bargain with the
Union, it utilized its new seniority-layoff rules which
Plant Manager Tunstall unilaterally announced October
31.
This first group of layoffs on December 5 included,
out of order of seniority, union organizers Conder and
Brooks and union supporter Stevens, found above to be
discriminatory layoffs. A total of 19 employees were laid
off on that date, 3 on December 12, 1 on January 5, 6 on
January 16, 1 each on January 19, 20, and 25, 1 on Feb-
ruary 12, and 14 on March 12, making a total of 47 em-
ployees laid off. During this period of time, the Compa-
ny hired 11 new employees between January 28 and
March 2. (Three of these new employees soon quit and
the remaining eight were laid off March 12.) The Com-
pany also rehired a former employee, Mary Blanford,
who had not worked at the plant since the union orga-
nizing began. (See G.C. Exh. 32.)
Plant Manager Tunstall claimed that three of the laid-
off employees were recalled. He testified that Blanford
returned at her previous wages, that Martha Nally re-
fused to return in a lower classification, and that another
employee returned and worked only I day (at a reduced
rate of pay). However Blanford, the only person who
was offered a job without a reduction in pay, was not
one of the laid-off employees, all of whom, if they had
been recalled, would have been offered the new 1981
wage scale (G.C. Exh. 42).
This new wage scale, which was unilaterally adopted
and made effective January 1, replaced the prior wage
scale, grades, and ranges (G.C. Exhs. 41 and 47), gener-
ally lowering the wages as discussed above under
"Layoff or discharge" (concerning the layoff of Conder,
Brooks, and Stevens). All of the employees who had re-
mained on the payroll were permitted to retain their cur-
rent wage rates unchanged. However, as found, the
Company discriminatorily applied the new, lower wage
scale to Conder, Brooks, and Stevens as a maneuver to
enable it to claim it believed they would not want to
return at the lower wage. One supervisor, though, ad-
mitted at the hearing (contrary to Tunstall's false testi-
mony) that he and Tunstall had decided not to recall any
of the laid-off employees (presumably after Nally and an-
other employee had been recalled, if that part of Tun-
stall's testimony can be believed).
c. Contentions of the parties
The General Counsel contends that the Company's
unilateral changes on October 31 were separate unlawful
refusals to bargain (and were also unlawfully motivated
to discourage union membership and activity, for which
I find no supporting evidence). He contends that the lay-
offs on December 5 and thereafter, and the changes in
wages and rates of pay, all made unilaterally and without
affording the Union "prior notice or an opportunity to
bargain about the method" of layoffs or about the wage
changes, were additional separate violations of the duty
to bargain. He contends that the Company, without af-
fording the Union notice or opportunity to bargain,
"conditioned" recall of the laid-off employees on their
acceptance of the new wages and "failed and refused to
recall employees who would not accept, or who the Re-
spondent believed would not accept," the new wages.
The Company denies any obligation to bargain. It
admits that Plant Manager Tunstall "announced the im-
plementation of policies on job bidding, absenteeism,
layoff," etc., but denies that the Company took this
action, as the "General Counsel alleges," to discourage
employees from joining and assisting the Union. It ig-
170
SCHNADIG CORPORATION
nores the further allegation that the Company instituted
these changes "unilaterally, and without affording the
Union prior notice or an opportunity to bargain" over
the changes, as alleged in the February 26 complaint,
amended March 4.
Concerning the unilateral changes, the Company
argues that if it had "delayed its changes or forestalled
any action pending discussion or agreement with a union
which to [its] knowledge and belief did not represent a
majority of its employees, its business might very well
have gone under completely" (without supporting evi-
dence). "If an employer both during and after an election
campaign has the threat hanging over his head that any
unilateral action taken by him in the operation of his
business may later be ordered set aside, it may hesitate to
so act and as a consequence its business may suffer. On
the other hand if it attempts to avoid 8(aX5) violations
by bargaining over contemplated changes with a union
seeking recognition it risks an 8(aX2) violation should it
be found that the union is but a minority representative"
(without citing any authority).
d. Concluding findings
Any uncertainty the Company may have had about its
obligation to bargain after the election was of its own
making. Having committed flagrant unfair labor practices
to prevent a fair election, it acted at its peril in unilater-
ally making the October 31 changes in conditions of em-
ployment, in unilaterally adopting the changed method
of selecting the large number of employees for layoff
(thereby changing the conditions of employment of bar-
gaining unit employees), in unilaterally adopting the
changes in wage scale, grades, and ranges while exempt-
ing the employees remaining on the payroll from the re-
ductions, and in depriving the laid-off employees of
recall by unilaterally adopting the new recall policy.
I therefore reject the Company's contentions and find
that its unilateral actions constituted separate violations
of its duty to bargain which arose July 31.
III. REPRESENTATION PROCEEDING
The petition was filed by the Union on August 4. The
election, directed by the Regional Director, was con-
ducted October 1. The vote was 51 for and 74 against
union representation, with 3 challenged ballots, an insuf-
ficient number to affect the outcome of the election. The
Union filed timely objections.
Based on the foregoing findings of unfair labor prac-
tices committed by the Company during the critical
period from August 4 to October 1, I find that the Com-
pany engaged in serious misconduct which interfered
with the employees' exercise of a free and uninhibited
choice of representation.
Concerning the alleged violation of the Excelsior rule,
Excelsior Underwear, supra, 156 NLRB 1236, the Compa-
ny submitted a list (C.P. Exh. I) which was obviously
designed to deprive the Union of an opportunity to con-
tact the eligible voters. The names and addresses were
not listed alongside each other, but were listed separate-
ly, with the names typed on 2-1/2 pages and the address-
es typed on six pages. This is the only list which U.I.U.
General Organizer Ted Davis received, and it is the list
which was used at the election.
The Company contends that it hand delivered a
second list (Resp. Exh. 4), with the addresses listed
alongside the names, to the desk clerk at the motel
where Davis was staying. It relies on the testimony of
the former acting plant manager, Bruce Williams, who
claimed that he handed it to the desk clerk for Davis,
without asking the clerk to sign for it. (As found above,
Williams placed a spurious final written warning memo
in union organizer Adams' file to justify his discharge.) I
agree with the Company that it established the motel's
business practice and custom in handling deliveries of
mail and packages addressed to patrons of the motel, and
that Davis conscientiously picked up his mail. Therefore,
if Williams had in fact delivered the second list to the
desk clerk, Davis undoubtedly would have received it.
As indicated above, however, Williams did not impress
me favorably as a witness and I discredit his testimony
that he delivered the second list. I therefore find that the
Company violated the Excelsior rule as alleged.
Accordingly I find that the October 1 election must be
set aside.
CONCLUSIONS OF LAW
1. By discharging Thomas Muensterman November 20
and William Adams, Jr., March 2, and by discriminatori-
ly laying off Susan Brooks, Richard Conder, and Mary
Stevens December 5 and refusing to recall them since
that date, because of their support of the Union, the
Company engaged in unfair labor practices affecting
commerce within the meaning of Section 8(aX3) and (1)
and Section 2(6) and (7) of the Act.
2. By denying Williams Adams, Jr., a scheduled wage
increase October 3, by placing spurious disciplinary
warnings in his file dated November 2 and December 12,
and by giving Richard Conder a written warning No-
vember 4 and a 3-day suspension November 7, the Com-
pany violated Section 8(a) 3) and (1).
3. By making repeated threats to close the plant if the
employees voted for union representation, the Company
violated Section 8(aXI).
4. By engaging in repeated coercive interrogation and
by creating the impression that the employees' union ac-
tivities were under surveillance, the Company violated
Section 8(aXl).
5. By promising the principal union organizer a pro-
motion to foreman if he would help defeat the Union,
the Company violated Section 8(aXl).
6. By soliciting employee grievances and making an
implied promise of a remedy, the Company violated Sec-
tion 8(a)(l).
7. By maintaining a rule prohibiting union solicitation
during working hours and prohibiting the distribution of
union literature on company premises without specific
prior approval, the Company violated Section 8(a)(l).
8. By refusing to bargain on and after July 31, the
Company violated Section 8(a)(5) and (1).
9. By unilaterally eliminating the job bidding proce-
dures and by unilaterally changing the seniority-layoff
system and the absentee and attendance program on Oc-
171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tober 31, thereby changing conditions of employment,
the Company violated Section 8(a)(5) and (1).
10. By unilaterally laying off a large part of the bar-
gaining unit between December 5 and March 12, using
the new layoff standards, without affording the Union an
opportunity to bargain about the method of the layoffs,
the Company violated Section 8(aX5) and (1).
11. By unilaterally changing the wage scale, grades,
and ranges, effective January 1, the Company violated
Section 8(a)(5) and (1).
12. By unilaterally conditioning the recall of laid-off
employees upon their acceptance of the new wages and
by failing and refusing to recall them, the Company fur-
ther violated Section 8(a)(5) and (1).
13. The Company did not threaten to discharge em-
ployees if they supported the Union.
14. The Company did not engage in unlawful surveil-
lance, discriminatorily restrict employees to their work
station or department, or unlawfully restrict their talking
during working time.
15. The General Counsel failed to prove that the Com-
pany coercively gave an employee antiunion literature to
distribute, threatened to discontinue pay raises if they se-
lected the Union, or made an additional alleged threat of
plant closure.
16. The General Counsel failed to prove that the Com-
pany violated the Act by eliminating certain smoking
areas or that it was discriminatorily motivated when
making the unilateral October 31, 1980, changes in work-
ing conditions.
17. The General Counsel failed to prove that the Octo-
ber 24, 1980, disciplinary warning given William Adams,
Jr., was unlawfully motivated.
18. The General Counsel failed to make a prima facie
case that union organizer Rick Poore's August 1, 1980,
discharge was discriminatorily motivated.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged
two employees and discriminatorily laid off and refused
to recall three others, I find it necessary to order it to
offer them reinstatement and make them whole for lost
earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, in accord-
ance with F. W. Woolworth Company, 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
Because of (1) the failure of the Respondent to bargain
with the Union concerning the method of making the nu-
merous layoffs, (2) the unilateral changing of their
wages, (3) the unilateral conditioning of their recall upon
acceptance of the unlawfully reduced wages, and (4) the
failure to recall them while hiring new employees, I find
it necessary to order the Respondent to offer reinstate-
ment to all bargaining unit employees laid off on or after
December 5, 1980, at their former rates of pay, dismiss-
ing, if necessary, persons hired after that date, and, if suf-
ficient jobs are not available, to place the remaining laid-
off employees on a preferential hiring list doing so, at the
request of the Union, in accordance with the seniority
system in effect before the October 31, 1980, unilateral
changes, and offer them employment before any other
persons are hired. In view of the Respondent's financial
losses at the time, I agree with the General Counsel that
it is not appropriate under the circumstances of this case
to provide for the customary backpay. Cf. Clements Wire
& Manufacturing Company, Inc., 257 NLRB 1058 (1981).
The Respondent having made unilateral changes in
working conditions on October 31, 1980, and made uni-
lateral changes in wages effective January 1, 1981, not-
withstanding its duty to bargain since July 31, 1981, I
find that the unlawful refusal to bargain can be remedied
only by restoration of the status quo ante. I therefore find
it necessary to order the Respondent, upon the Union's
request, to rescind these changes and restore the job bid-
ding procedures, seniority system, absentee and attend-
ance program, and the wage scale, grades, and ranges
which were in effect before the unilateral changes were
made. I also find it necessary to order the Respondent to
mail the required notice to all employees laid off on and
since December 5, 1980.
As it appears that the Respondent has engaged in such
egregious misconduct as to demonstrate a general disre-
gard for the employees' fundamental rights, I find it nec-
essary to issue a broad order, requiring the Respondent
to cease and desist from infringing in any other manner
upon rights guaranteed employees by Section 7 of the
Act. Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]
172