Westmoreland Kitchen, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1974

209 N.L.R.B. 153 (N.L.R.B. 1974)

WESTMORELAND KITCHEN, INC. 153
Westmoreland Kitchen , Inc. and Victoria Bobnar
Errett. Case 6-CA-67 10
February 21, 1974
employees that Cunningham would close the plant if
they persisted in asserting themselves through their
grievance committee ." See N.L R.B. v. Gissel Packing
Co, Inc., 395 U.S. 575, 618-620 (1969).
DECISION AND ORDER
BY CHAIRMAN MII LER AND MEMBIzRS
FANNING AND PI:NELI0
On October 30, 1973, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions as modified herein.
We disagree with the Administrative Law Judge's
finding that Respondent's President Cunningham
did not violate the Act at the March 26 noon meeting
with employees when, in response to employee
Ruffner's complaint about Respondent's incentive
plan, Cunningham retorted that "if he did not like
the incentive plan, he could find a job elsewhere." In
our view, Cunningham's statement constituted an
implied threat of discharge and violated Section
8(a)(1).2 Robert D. Loggins, Ronnv M. Loggins and
Randy Parker d/h/a Loggins Meat Co., 199 NLRB
291, at section 111 B 2 of the ALJD.
We further find, contrary to the Administrative
Law Judge, that Cunningham violated Section
8(a)(1) at meetings on March 28 with both the
grievance committee and the employees when he said
"if you want to run the plant, I'll just pack up and
leave, you can have everything. T don't have to take
this." The Administrative Law Judge does not
specify the rationale on which he relies, but in our
view none of his reasoning concerning other events
on that date can be applicable. We find that these
statements unlawfully imparted a veiled threat to the
i The Respondent excepted to the Administrative Law Judge's finding
that Respondent violated See 8(a)(1) of the Act by promising a benefit to its
employees in the form of a steak and beer party to deter them from
exercising their right to engage in protected activity . Since we have decided
to affirm the Administrative Law Judge's findings that Respondent
interfered with and restrained the employees in the exercise of their rights
guaranteed in Sec 7 of the Act in violation of Sec 8 (a)(i) by threats,
surveillance , and the impression of surveillance of their protected activities,
we find it unnecessary tc pass on the Respondent 's offer of a beer and steak
party inasmuch as such a finding would he cumulative and would not affect
the remedy which we have provided herein.
2 Chairman Miller would affirm the Administrative Law Judge's finding
that this remark did not constitute an unlawful threat of reprisal . The record
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Westmoreland Kitchen, Inc.. Hempfield Township,
Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating
against, employees in regard to hire or tenure of
employment, or any term or condition of employ-
ment, because of their committee or union or
protected concerted activities.
(b) Threatening employees with discharge and
other reprisals because of their committee or union
or protected concerted activities.
(c) Threatening employees with plant closure and
other reprisals because of their committee or union
or protected concerted activities.
(d) Engaging in surveillance of employees' commit-
tee or union or protected concerted activities.
(e) Creating the impression of surveillance of
employees' committee or union or protected concert-
ed activities.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act except to
the extent that such rights may he affected by lawful
agreements in accordance with Section 8(a)(3) of the
Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer to Victoria Bobnar Errett immediate and
full reinstatement to her former position or, if such
position no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority, or
other rights previously enjoyed, and make her whole
for any loss of pay suffered by reason of the
discrimination against her in the manner set forth in
shows that Cunningham made this statement as part of a discussion about
the incentive plan with Ruffner at the employee grievance meeting. In the
course of this discussion , Ruffner expressed the belief that higher wages
should he substituted for the incentive plan Cunningham insisted that he
would not change the incentive plan Inasmuch as Cunningham c statement
was made in the context of a discussion of Respondent's wage structure, the
Chairman would not find that this remark implied a threat of discharge
Chairman Miller would not characterize these comments as threats by
Respondent to close its facility In his view, these statements represented a
permissible expression of Cunningham' s frustration in give-and-take
negotiations on employee demands Mike Velrc, Sr, Mike Velvc, Jr.. Ross
Velvs, Rose Scarelli and Zoera Halgis, Copartner , d/b/a R c& M Electric
Supply Co. 200 N LRB No 59
209 NLRB No. 34
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the section of the Administrative Law Judge's
Decision entitled The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at Respondent's plant at Hempfield
Township. Westmoreland County, Pennsylvania,
copies of the attached notice marked "Appendix.'"'
Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by Respondent for 60 consecutive
days thereafter, in conspicuous places. including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the allegations of
unlawful conduct not specifically found to be
violative herein be dismissed.
I 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 Pursuant to .1
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, it has been found that we
violated the National Labor Relations Act and we
have been ordered to post this notice and to keep our
word about what we say in this notice.
WE WILL offer to Victoria Bobnar Errett
immediate and full reinstatement to her former
position or, if such position no longer exists, to a
substantially equivalent position, without preju-
dice to her seniority or other rights previously
enjoyed, and make her whole for any loss of pay
suffered by reason of the discrimination against
her.
WE WILL NOT discharge or otherwise discrimi-
nate against employees in regard to hire or tenure
of employment, or any term or condition of
employment, because of their committee or union
or protected concerted activities.
WF WILL NOt engage in surveillance of our
employees' committee or union or protected
concerted activities.
WE WILL NOT create the impression of surveil-
lance of our employees' committee or union or
protected concerted activities.
WE WILL NOT threaten employees with dis-
charge or other reprisals because of their commit-
tee or union or protected concerted activities.
WE WILL Nor threaten employees with closure
of our plant or other reprisals because of their
committee or union or protected concerted
activities. _
WF WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the
National Labor Relations Act except to the extent
that such rights may be affected by lawful
agreements in accordance with Section 8(a)(3) of
the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization, except to the extent that such
rights may be affected by a lawful agreement in
accordance with Section 8(a)(3) of the Act.
WESTMORELAND
KITCHEN, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not he
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building , 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
STACEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended , was tried pursuant to due
notice on August 21 and 23, 1973, at Pittsburgh , Pennsyl-
vania.
The charge was filed on May 8, 1973 . The complaint in
WESTMORELAND KITCHEN, INC.
this matter was issued on June 22, 1973. The issues concern
(1) whether Respondent discriminatorily discharged Victo-
ria Bobnar Errett in violation of Section 8(a)(3) and (1) of
the Act , and (2) whether Respondent engaged in acts of
interference , restraint, and coercion (interrogation , promis-
es of benefits , threats, and creation of impression of
surveillance) in violation of Section 8(a)(1) of the Act.
All parties were afforded full opportunity to participate
in the proceeding . Briefs have been filed by the General
Counsel and Respondent and have been considered.
Upon the entire record in the case and from my
observation of witnesses , I hereby make the following:
FINDINGS OF FACT
1. TILE BUSINESS Or THE hMPLOYER
The facts herein are based upon the pleadings and
admissions therein.
Westmoreland Kitchen, Inc., the Respondent, a Pennsyl-
vania corporation with its principal place of business in
Hempfield Township, Westmoreland County, Pennsylvani-
a, is engaged in the manufacture and nonretail sale of
cabinets. Within the 12-month period immediately preced-
ing the issuance of this complaint, the Respondent
purchased and received goods and materials valued in
excess of $50,000 directly from outside the Commonwealth
of Pennsylvania for use at its facilities within the
Commonwealth of Pennsylvania. During this same period,
Respondent shipped goods valued in excess of $50,000
from its Pennsylvania facilities directly to points outside
the Commonwealth of Pennsylvania.
As conceded by Respondent and based upon the
foregoing, it is concluded and found that the Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVLDI
The Grievance Committee (Westmoreland Kitchen. Inc.)
is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues, Supervisory Status
The General Counsel alleged and contends and this
proceeding reveals that at all times material herein, the
following named persons occupied the positions set
opposite their respective names and were agents of
Respondent . acting on its behalf , and were supervisors
within the meaning of Section 2(11) of the Act.
Charles P. Cunningham President
Bruce A . Reinshagen Foreman
Harry Crosby General Foreman
i The facts are established by the pleadings.
2 The Rupp Forge Coinpani, 201 NLRB 347, GAC Properties, Inc, 205
NLRB No 155
3 The facts are based upon a composite of the credited aspects of the
155
The Respondent admits the supervisory status of the
above-named individuals but denies the agency status of
the said individuals. As supervisors, such persons were
agents for the type of conduct engaged in or contended to
have been engaged in this proceeding. Accordingly, it is
found that the General Counsel has established the above
referred to allegations?
B. The Facts3
As of the time of the trial in this matter, it may be said
that Westmoreland Kitchen, Inc., was a relatively new
employing enterprise. Thus, Westmoreland Kitchen, Inc.,
had commenced production operations in the fall of 1972.
Thereafter, it had encountered some problems with respect
to its financial ability to meet all of its obligations with
respect to salaries and to some equipment.
Victoria Bobnar Errett, the alleged discriminatee, was
initially employed by the Respondent in November 1972
and worked thereafter for the Respondent until she was
discharged on April 3, 1973. During her tenure of
employment the following may be noted. Errett received
an oral reprimand and a written reprimand in connection
with two occasions of lateness in the November-December
1972 period. The written reprimand was issued on
December 7, 1972. Errett was a good employee, was
considered a good employee, and in addition to her duties
as a sander was made an expediter a period of time before
her discharge. Errett had been or was being considered for
promotion to a supervisory position.
1. Events of March 24 and 25
On Friday, March 24, 1973, foreman Harry Crosby
spoke to employee Rudy Roscoe about the formation of a
grievance committee. What occurred is revealed by the
following credited excerpts from Crosby's testimony.
A. Well, I heard that the men were dissatisfied,
that they were going to walk out, and I was sitting
eating with Roscoe at dinner time, and I suggested to
the walkouters that it was no good for the company nor
employees. Why didn't they try to get a committee and
go in the office and talk to Mr. Cunningham.
Later, on March 24, 1973,-Errett spoke with her foreman,
Harry Crosby, about the formation of a grievance
committee. What occurred is revealed by the following
credited excerpts from Errett's testimony.
THE WITNESS: He spoke to me, Saturday,
concerning a grievance committee to handle employ-
ees' dissatisfaction with the working conditions and I
told him that I was interested in starting the committee
and-and he also-I told him that I would draw up a
petition and he told me that Rudy Roscoe was also
interested in being on the committee. And I told him
that I would draw the petition and bring it to work on
Monday and have the employees sign it.
testimony of Errett. Miller, Reinshagen . Casagrande. DePalma, Cope,
Cunningham . Crosby, Roscoe, Paskan, and Birt , the exhibits, stipulations.
pleadings, and statements of counsel narrowing the issues in this
proceeding
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later that day, Errett spoke to employee Rudy Roscoe
about the petition that she was going to draw up. Errett
told Roscoe that she would draw up the petition and bring
it to work on Monday. Roscoe agreed to help get
employees to sign the petition on Monday. Thereafter, on
March 25, 1973, Errett prepared a petition designed to
have employees signify by their signatures that they were
designating Errett and Roscoe as their representatives for
taking grievances to management.
2. Events of March 26, 1973
On the morning of March 26, 1973, Errett and Roscoe
secured employee signatures to the petition that Errett had
prepared for the establishment of a grievance committee.4
Apparently, around the same time, Errett spoke to foreman
Crosby about the grievance petition. Foreman Crosby told
Errett in effect that she should not get caught getting
signatures on the petition during working hours
Conclusion as to Threat
Considering all of the foregoing, I conclude and find that
the Respondent, by foreman Crosby, on March 26, 1973,
threatened Errett with reprisals if she engaged in getting
signatures for the petition (for a grievance committee)
during working hours. The facts reveal that the Respon-
dent did not have a written rule concerning solicitation and
was not concerned about employees' talking to each other.
Thus, President Cunningham. on April 2, 1973, observed
Errett talking to employees during her working hours,
ascertained that Errett was not talking about the commit-
tee and took no action thereto. Further, Crosby's remarks
were ambiguous. The remarks did not reveal whether he
was referring to the Company's working hours or to the
employee's working hours. Under such circumstances,
Errett's right to engage in organizational activities on her
own time was interfered with. Accordingly, it is concluded
and found that Respondent has violated Section 8(a)(1) of
the Act by such conduct .6
On the morning of March 26, 1973, Errett and Roscoe
told foreman Crosby in effect that they had organized a
grievance committee and wanted him to arrange a meeting
between them (Errett and Roscoe) and President Cunning-
ham. Foreman Crosby went to see President Cunningham
and related the foregoing information. President Cunning-
ham showed annoyance and asked foreman Crosby if he
was the "instigator". Foreman Crosby told President
Cunningham that all he was trying to do was hold the
peace, that if he (Cunningham) did not want a meeting. he
could tell them (Errett and Roscoe) "no," that he (Crosby)
didn't care. President Cunningham thereupon did not say
anything. merely looked at foreman Crosby, turned
around, and walked into his office.
Later that morning, Errett and Roscoe were called into
President Cunningham's office. President Cunningham
4 1 here is some dispute as to whether some of the employees who signed
the petition were working or were on nonwoik time when they signed the
petition It is unnece-sary to make a precise determination as to this dispute
since a determination either way would not affect the decision herein
s Considering the logical consistency of the facts and the direct and
cross-examination of witnesses Crosby Crrett, and Miller I credit C roshy's
version of the facts to this point Erreti's and Miller's testimony was to the
commenced the discussion by asking Errett and Roscoe to
tell him what was going on in the plant. Roscoe did most of
the talking for himself and Errett. In effect, Roscoe and
Errett told President Cunningham that the employees
wished to have a grievance committee with which to have
some representation in the administration, to get better
working conditions, and to handle employee grievances.
Errett and Roscoe told President Cunningham that the
committee idea was a new idea and that Errett and Roscoe
were the committee. President Cunningham agreed to
recognize the committee and suggested that the committee
get members from each department. President Cunning-
ham and Errett and Roscoe agreed in effect that Errett and
Roscoe would be called in together for the handling of
grievances. Errett and Roscoe asked in effect if the
committee could have a meeting at lunchtime. President
Cunningham was agreeable to this and wanted to know if
he could attend the lunch meeting. Roscoe told President
Cunningham in effect that it would be a good idea if he
(Cunningham) attended.
The General Counsel and Respondent dispute whether
President Cunningham made reference to "union" in this
discussion and whether he stated in effect that the
Respondent could not afford to be unionized. The
testimony to this issue is limited. It is clear from the overall
facts that President Cunningham did make reference to the
problem of having a union at other meetings. It is also
clear from the total testimony of witnesses that President
Cunningham's reference to the problem of unions and the
fact that the Respondent could not afford to operate under
a union was in the context of an explanation that the
Respondent could not afford to operate under conditions
wherein the Union would cause certain designated employ-
ees to have to be utilized in a certain manner. Errett
testified in a brief and conclusionary fashion to the effect
that President Cunningham, on the morning of March 26,
1973, "mentioned" to her and Roscoe "about a union" and
"that the plant couldn't afford to go unionized." Cunning-
ham and Roscoe were not specifically questioned on this
point. Roscoe's testimony as a whole was presented in a
generalized manner. Cunningham's testimony does not
reveal a specific dental that the subject of unions was
discussed in this incident. If his overall testimony were
presented as his version of the facts, it may be said that
such presentation was in too loose a manner to reveal a
denial that the subject of unions was discussed at this time.
The complete testimony of all witnesses, as indicated,
reveals that the substance of the statements by Cunning-
ham about unions and that the Respondent could not
operate with a union included an explanation of the
reasons therefor. Considering all of the facts, I credit
Errett's testimony to the effect that President Cunningham
mentioned the fact of unionism and the fact that
Respondent could not afford to operate under a union. I
find from the totality of her testimony and the logical
composite effect that Crosby warned Errett about getting caught with the
petition and about not getting signatures on working time I discredit such
testimony to the extent that it differs from the facts found
" Cf 4nierttan •tfanq/atluring Compant, inc. 196 NLRB 248. Caterpillar
Tractor Co. 113 NLRB 553. Miller Discount Dept Stores. 198 NLRB No.
40
WESTMORELAND KITCHEN, INC
consistency of all the facts and testimony of other
witnesses that President Cunningham explained in effect
that Respondent could not operate under a union if the
Union required certain employees to be used in certain
ways.
Contended Threat
The General Counsel contends that the Respondent, by
President Cunningham, on March 26, 1973, threatened
employees with reprisals by statements to the effect that
the Respondent could not afford a union. Considering all
of the facts relating, to this issue , I am persuaded and
conclude that the facts do not support the General
Counsel's contentions. President Cunningham's remarks to
the effect that Respondent could not afford to be
unionized accompanied by an explanation that this would
be caused by the Union's requirement of utilization of
employees in a certain way do not constitute a threat of
reprisal but are merely an argument as to problems.
Accordingly, it will be recommended that such allegation
of conduct as being violative of Section 8(a)(1) of the Act
be dismissed.
The Noon Meeting
The Respondent's employees were assembled for a
meeting in the lunchroom at noon on March 26, 1973.
Before President Cunningham arrived, Roscoe told the
employees of the purpose of the meeting, that Cunningham
was to be there, and that they should bring up any
grievances or anything that they wished to.7 President
Cunningham arrived and told the employees in effect that
he liked the idea of a committee, that he did not like the
idea of calling it a "grievance" committee, that he
suggested that it be called a "labor relations committee."
Cunningham told the employees in effect that the plant
was too small to he unionized, that the plant could not
operate with a union requiring certain employees to be
utilized in certain ways. President Cunningham asked the
employees to speak up if they had any grievances Only
one employee spoke up. This employee, Ed Ruffner,
expressed dissatisfaction with the Respondent's incentive
plan. President Cunningham became annoyed and told
Ruffner in effect that if he did not like the incentive plan,
he could find a job elsewhere. A short time later President
Cunningham left the meeting to allow the employees to
discuss matters themselves. About 15 minutes later
President Cunningham returned and dismissed the meet-
ing.
Contended Interrogation
The General Counsel contends that President Cunning-
ham's request to the employees at the noon meeting to
express their grievances constituted unlawful interrogation
in violation of Section 8(a)(1) of the Act. I ain persuaded
and conclude that Cunningham's request for employee
expression of grievances, in the context of all the facts, did
not constitute unlawful interrogation in violation of
157
Section 8(a)(1) of the Act. Thus, Cunningham had been
invited to the noon meeting, and employees were aware
that discussions of grievances was a purpose of the
meeting. In such context, it is clear that such conduct by
Cunningham did not interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights.
Contended Threats
The General Counsel contends in effect that President
Cunningham's remarks about not being able to afford a
union constituted a threat of reprisal. For the same reasons
indicated previously, I conclude and find that the facts
reveal that such remarks were made in the context of an
explanation of problems concerning job assignments.
Accordingly, I conclude and find that such conduct is not
violative of Section 8(a)(1) of the Act.
The General Counsel contends that President Cunning-
ham's remarks to Ruffner that if he did not like the
incentive plan, he could find ajob elsewhere, constituted a
threat of reprisal in violation of Section 8(a)(1) of the Act.
Considering all of the facts, I do not find such remarks to
constitute a threat of reprisal. Accordingly, I conclude and
find that such conduct is not violative of Section 8(a)(1) of
the Act.
3. Events of March 26 and 27
After the March 26, 1973, noon meeting, some of the
employees during the time period of March 26 and 27,
1973, discussed their dissatisfaction with working condi-
tions and with the way the noon meeting had gone, and
discussed the idea of a walkout. Either on March 26 or on
March 27, 1973, Errett spoke to her friend, foreman
Crosby, and in effect asked Crosby for his opinion of the
idea of a walkout. Crosby expressed his opinion of a
walkout to Errett. Crosby told Errett in effect that it was
his opinion that if the employees walked out, probably all
would he fired, that if they were going to have a walkout,
they had better have enough people to walkout so as to
slow production to the point that President Cunningham
would have to negotiate with the employees, that if only a
few walked out, President Cunningham could fire the ones
who walked out without really hurting the Company.
Crosby also told Errett that she was moving too fast, that
she had been recognized and that she should now
negotiate.
Conclusion as to Threat
Considering all of the foregoing, I conclude and find that
the Respondent, by foreman Crosby, on March 26 or 27,
1973, threatened employees with reprisals if they engaged
in a walkout. I have considered the facts that foreman
Crosby was a friend of Errett's and that Errett initiated the
request for his opinion. Some factual situations may reveal
that remarks from a friend are completely speculative and
that thus a threat does not occur even though the remarks
might otherwise appear threatening. A threat from a friend,
however, may he and often time is more coercive than from a
' 1 he facts were presented loosely Considering such facts and the logical consistency of all of the facts, I find the facts as set out
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person who is not a friend. Opinions which include threats
of reprisals are violative of the Act and are not protected
within the purview of Section 8(c) of the Act. The remarks
by foreman Crosby to Errett were remarks by a person in a
position to know what the Company's policy was and
exceeded mere speculation.8 Considering all of the forego-
ing, it is clear that the Respondent violated Section 8(a)(1)
of the Act by foreman Crosby's threats as to what would
occur if there were a walkout by the employees.
Errett called a meeting of employees at her home on the
night of March 27, 1973. At this meeting a list of
negotiating-type demands concerning working conditions
was drawn up, and copies of the list were made.
4. Events of March 28, 1973
On the morning of March 28, 1973, Errett took copies of
the list of negotiating demands to work. At the plant, Errett
showed the list to Rudy Roscoe .9 Roscoe read the list of
demands. Roscoe then told Errett that he no longer wanted
to be on the committee. Roscoe, at some point of time
later, went to President Cunningham and told Cunning-
ham in effect that he was no longer on the committee and
had nothing to do with the committee.
Sometime after showing the list of demands to Roscoe,
Errett showed the list to foreman Crosby. Foreman Crosby
read the demands, told Errett that the committee was going
about the matter too fast, and told Errett that she should
not get caught with the demands or hand them to President
Cunningham because President Cunningham would fire
her on the spot. to
Conclusion as to Threat
Considering the foregoing, I conclude and find that the
Respondent, by foreman Crosby, on March 28, 1973,
threatened employees with reprisal if they engaged in
union protected concerted activity. Such conduct is
violative of Section 8(a)(1) of the Act. It is so concluded
and found.
Either shortly before or after showing the list of demands
to foreman Crosby, Errett designated employees Jackie
Miller and Ed Ruffner to serve on the "committee" in
place of Roscoe. After showing the list of demands to
foreman Crosby, Errett left copies of the list on a table in
the lunchroom. Errett did not take the list of demands to
President Cunningham.
A short time later, President Cunningham was in the
lunchroom, saw the list of demands, and remarked that he
guessed that the list was meant for him. I'
President Cunningham took a copy of the list of
demands and went to Errett at her work station.12 Errett
credibly testified to the effect that Cunningham's tone of
voice when he addressed her was hostile.13 What occurred
B The company employee complement was only around 36 employees.
9 Roscoe had not been present when the list of demands had been drawn
up.
10 I found Errett and Miller in their testimony on this point to appear
completely frank and objective. Crosby's testimony was similar in effect,
although less complete and different in that he testified that he referred to
"trouble" and not to firing. I credit Errett's and Miller's testimony over that
of Crosby where it is in conflict.
11 This would appear to be a reasonable observation under the
is revealed by the following credited excerpts from her
testimony.
A. He came to me, at approximately 8:30 that
morning, with a-he pulling a copy of the demands out
of his pocket and saying to me, what is this all about.
And I said that I would not discuss the list of
demands with him unless he met with the rest of the
committee. And he said, then, we'd better call this
meeting, and leaving the department with me, he says,
"This is my whole life. You kids don't know what
you're doing." I said, "Yes, this is our life, too."
And then we called Jackie Miller and Ed Ruffner
and we had the meeting in Mr. Cunningham's office.
Contended Interrogation
The General Counsel contends that Respondent, by
Cunningham, on March 28, 1973, unlawfully interrogated
Errett about the demands. Considering the facts, including
the fact that Errett and Roscoe had identified themselves
to Cunningham as the two persons designated to act as a
committee, the fact that Roscoe had told Cunningham that
he was no longer involved with the committee, the wording
on the list of demands indicating that the demands were
directed to management and that negotiations had to be by
noon on March 28, 1973, I am persuaded and conclude
that the remarks to Errett by Cunningham were merely a
normal response and not unlawful interrogation. Accord-
ingly, it will be recommended that allegations of conduct
violative of Section 8(a)(1) in such regard be dismissed.
The Cunningham-Committee Meeting
Sometime shortly after 8:30 a.m., the grievance commit-
tee (Errett, Miller, and Ruffner) met with President
Cunningham in his office. The committee and Cunning-
ham discussed all of the demands. Cunningham and the
committee essentially reached agreement on all of the
demands except those of wages and incentive pay.
The meeting commenced with President Cunningham
telling the committee in effect that he agreed with the idea
of a committee but preferred another name for the
committee than that of "grievance committee," that he
desired the committee to have a broader function than
grievances.
As regards the question of wages, Cunningham indicated
that some of the wage requests were out of question, that
they should pass the item and return later to the question.
During the discussions the question of raises, union wages,
and operation of the plant under a union came up.
Cunningham told the committee that the Respondent
could not afford union wages and offered to show the
company books in support of his claim. Cunningham also
circumstances.
12 Since Roscoe, the only other committee member originally designated
and identified to President Cunningham, had told Cunningham that he no
longer had anything to do with the committee, this appears to be a logical
act.
1:1 It should be noted that the demand set forth in part that the
"following points be negotiated with the grievance committee before noon,
March 28, 1973."
WESTMORELAND KITCHEN, INC. 159
argued that a union would require certain employees to be
designated for certain work and thus cut down on job
diversification . Cunningham and committeeman Ruffner
engaged in an argument over the idea of raises and the skill
ability of the employees to do different work. Cunningham
left the room, in apparent anger, but returned shortly.
During the discussion Cunningham also indicated that the
Respondent would not abandon its incentive pay plan.
Also in the discussion Cunningham related that he had a
meeting that afternoon with potential investors, that such
potential investors would not be interested in investing in
the Company if they knew that there were labor problems.
During the discussion Cunningham also told the com-
mittee that he had been working on a wage program which
he had expected to complete within the next 2 weeks. Also
during the discussion Cunningham told the committee in
effect that if they wanted to run the -plant, he would just
pack up and leave, that they could have everything, that he
didn't have to take it.
At the end of the meeting Cunningham said in effect that
..now that this is over, we can put this to sleep." Errett told
President Cunningham in effect that he knew that they
couldn't put this to sleep since they hadn't come down to
"put it to sleep," that they had come down to have
something done about the problem. President Cunningham
remarked that he had heard of a planned walkout. Errett
told President Cunningham that there would not be a
walkout if something was done about the problems, that
she could not guarantee what the employees would do.
Cunningham asked if this were a threat. Errett replied that
it was not, that she was trying to warn him as to the way
the employees felt. President Cunningham told the com-
mittee that, since this was over, they would have a meeting
for all of the employees at lunchtime.
Contended Threat of Repnsal
The General Counsel contends in effect that Respon-
dent. by Cunningham, on March 28, 1973, threatened
employees with reprisals by Cummngham's remarks about
not being able to operate with a union. Considering the
facts set out above, the fact that Cunningham's remarks
concerning wages and not being able to operate with a
union were accompanied by an explanation and an offer to
reveal the Company's books to the employees, I conclude
and find that a threat of reprisal was not made. According-
ly, it will be recommended that the allegation of conduct
violative of Section 8(a)(1) in such regard be dismissed.
The General Counsel also contends that President
Cunningham's remarks, to the effect that if there were
labor problems at the plant, interested investors would not
invest , was violative of Section 8(a)(1) of the Act.
Considering the facts, I am persuaded and conclude that
such remarks constitute an expression of opinion that did
not contain threats. Whether or not investors invested in
the plant was a matter not within the control of
Respondent. Accordingly, I conclude and find that
Respondent, by Cunningham, did not violate Section
8(a)(1) of the Act by his remarks that investors would not
invest if there were labor problems.
Noon Meeting
President Cunningham held a meeting for all employees
at noon on March 28 , 1973. At this meeting , Cunningham
discussed the "list of demands" and indicated his position
as to the demands. In practical effect President Cunning-
ham repeated the expressed positions that he had given to
the committee earlier. Included in Cunningham 's remarks
were ( 1) his remarks concerning not being able to operate
with a union because the Union would designate where
employees would work, (2) his remarks to the effect that
investors would not be interested in investing in the
Company if there were labor problems, and (3) his remarks
to the effect that if the committee wanted to run the plant,
he would "pack up and leave."
Alleged Violative Conduct
The General Counsel contends that Respondent, by
President Cunningham, made threats of reprisals by the
above-referred to remarks . For the same reasons set forth
concerning the same remarks made to the committee
earlier on March 28 . 1973, I conclude and find that such
remarks did not constitute Respondent 's conduct violative
of Section 8(a)(I) of the Act.
Afternoon Meeting
President Cunningham called another meeting of his
employees at 3 p.m. What occurred at this meeting is
revealed by the following credited excerpts from Miller's
testimony.
A. Mr. Cunningham said that production had been
slowed down and that the employees were talking
among themselves and grumbling and nobody was
getting anything done, and he said that we were
holding a time bomb in our hands and he hoped that
we were adult enough to handle it and not act like
children and let the whole company blow up because of
this, and that he was going to have a steak and beer
party for the employees, and that if anyone said it was
a bribe he was going to punch them in the mouth.
Promise of Benefit
The General Counsel contends that the promise of a
steak and beer party constituted a promise of benefit to
deter employee support of the committee. The Respondent
contends in effect that the promise of a "steak and beer"
party was insignificant and was to help ease tensions and
get better morale.
Considering all of the facts , I conclude and find that
Respondent 's promise of a "steak and beer" party was a
promise of benefit given in such a manner as to deter
employees from the exercise of their right to engage in
collective activity. While such a benefit normally would
not be deemed to have a significant effect, such a benefit
under the circumstances herein would clearly have a
significant effect . Thus, the overall facts reveal that the
Respondent did not like and had so revealed to the
employees, the idea of a committee strongly asserting its
rights or position. Under the circumstances, the promise of
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a steak and beer party revealed to employees that what
they could obtain depended upon the good graces of the
Respondent. It is also clear that this "steak and beer" party
was related to the current question of the committee and
the grievance. Accordingly, it is concluded and found that
Respondent's promise of a steak and beer party, timed
with the employee grievance and committee activity,
constituted conduct violative of Section 8(a)(1) of the Act.
observed by Errett doing such watching. President Cun-
ningham also spoke to several of the employees to whom
Errett had talked. There is no evidence that his discussions
with such employees adverted to his concern that she was
talking on company time about the committee.
Surveillance and Creation of Impression of
Surveillance
Foreman's Meeting
Later, after the afternoon meeting with employees,
President Cunningham held a meeting with his foremen.
What occurred is revealed by the following credited
excerpts from Reinshagen's testimony.
A. He went over with the foremen the grievances
that the committee had presented to him, and he
pointed out the ones that he had agreed with and the
ones that, you know, he felt the plant could not go
along with, and he said that he had talked to a lawyer
to find just what he could and could not do concerning
the committee. He said that he had talked-there were
investors at the time interested in putting money in the
plant for expansion, and he said they had backed out
because of the labor problems.
5. Events of March 30, 1973
On Friday, March 30, 1973, foreman Crosby spoke to
Errett and told her to watch what she was doing. What
occurred is revealed by the following credited excerpt from
Errett's testimony. 14
A. Yes. He sort of warned me or spoke to me about
I should watch what I was doing, because Mr.
Cunningham was asking ' questions about my work,
about what I was doing in various parts of the plant.
6. Events of April 2, 1973
Errett's job as an expediter necessitated that she travel
throughout most of the plant in order to get parts to
complete her assigned tasks. During April 2, 1973, Errett
traveled throughout the plant getting the parts referred to
above in connection with her work. During such traveling,
Errett spoke to employees concerning the committee and
grievances . Some of the employees to whom Errett spoke
were not employees that she would have had to talk to in
connection with her work as an expediter.
President Cunningham was concerned that Errett might
be talking to employees about the committee during her
working hours. President Cunningham , who had been
watching Errett at work during the last several days,
watched Errett as she moved about the plant and was
to 1 do not credit Cunningham 's testimony to the effect that he told
foreman Crosby to direct Errett to stay in the sanding departments. The
overall facts reveal that President Cunningham watched Errett as she went
around the plant on April 2, 1973, that President Cunningham questioned
employees whom he saw Errett talking to as to what she had been talking
about , and that President Cunningham did not reprimand Errett at such
times . If the instructions testified to had been given , a reprimand would
have been warranted. I do not credit foreman Crosby 's testimony to the
effect that he was told by Cunningham to get Errett back in her own
The General Counsel's complaint alleges in effect that
Respondent, by President Cunningham, created among its
employees the impression that their activities on behalf of
the committee were kept under surveillance. The General
Counsel's brief contends also that the facts as litigated
reveal that Respondent actually engaged in surveillance of
Errett's protected activities.
Considering all of the facts, I am persuaded that a
preponderance of the evidence requires findings as
contended by the General Counsel. Thus, it is noted that
the Respondent's operation is that which can be described
as a small plant operation. Respondent has only 30 to 36
employees. Thus, the facts reveal that both management
and employees know essentially what is transpiring.
President Cunningham credibly testified to the effect that
he suspected that Errett was talking about the committee
during working hours. I am persuaded and conclude and
find that the employees knew that Errett was talking about
the committee and grievances during working hours, and
that employees knew that President Cunningham was
watching her to see if she were talking about the committee
and grievances.
I note further that Respondent has no expressed written
rule prohibiting union activity on company time. Despite
this, Respondent's rule such as its rules relating to
"horseplay and wasting time and violation of starting
time" reveal in a general way that Respondent expected
working time to be for work.
One must, however, consider Cunningham's actual
conduct on April 2, 1973, relating to watching Errett at
work, to checking with employees as to what Errett had
been talking about, and his failure to reprimand Errett on
such occasions when he ascertained that she had not been
discussing essentials of work. Thus, when President
Cunningham saw Errett speak to employee Overly and
found out from Overly that Errett had not been talking to
Overly about essentials of work, President Cunningham
did not follow up and reprimand Errett.15 The incident
relating to Errett's conversation with Overly and President
Cunningham's failure to reprimand Errett strongly reveals
that President Cunningham's motivation for surveillance of
Errett was because of a discriminatory attitude toward
Errett. According to Cunningham's credited testimony, it is
clear that Errett had no need to speak to Overly within the
purview of her job. On the occasion Errett was talking to
department, and that he told Errett that she was to stay in her own
deparrrneni, that she was not to expedite. Considering the logical consistency
of all the facts , I credit Errett 's testimony as indicated, and discredit
Cunningham's and Crosby's testimony contradictory of each other, and
inconsistent with that of Errett's.
16 1 do not credit Cunningham's testimony to the effect that he
"reprimanded" Overly. I am not persuaded that he would have reprimanded
Overly and not have also reprimanded Errett at the same time.
WESTMORELAND KITCHEN, INC.
Overly while he was using a saw in his work function.
President Cunningham's failure to reprimand Errett on
such occasion reveals that his interest in watching Errett
was not motivated by production or safety reasons but
merely because he suspected that she was engaged in
talking about the committee or grievances.
In sum, I conclude and find that Respondent's surveil-
lance of Errett, by Cunningham, on April 2, 1973, was
discriminatorily motivated, had an inhibitory influence on
Errett's and others' engagement in union or protected
activities, and was accomplished in a manner that created
the impression among its employees that their union or
protected activities were under surveillance without legiti-
mate cause. Such conduct is violative of Section 8(a)(1) of
the Act. It is so concluded and found.i6
During the day of April 2, 1973, there occurred other
events that are intertwined with President Cunningham's
surveillance of Errett. Thus, during the morning of April 2,
1973, Cunningham greeted Errett in passing and received
no reply. When Cunningham asked Errett to tell him what
was the matter, Errett replied that she was upset. Around
this time President Cunningham told foreman Reinshagen
that if this attitude of Errett's persisted, he would have to
fire her.
During the morning, while Errett was operating a new
sanding machine, Cunnmgham came to the machine and
had a conversation with her as is revealed by the following
credited excerpts from Errett's testimony.
A. Yes. He and Mr. McMann came into my
department while I was running the sanding machine
and Mr. Cunningham asked me what my understand-
ing of my job was, and I told him that I was-that it
was-I was head of the Sanding Department and I was
supposed to complete one job before he-before it was
sent to the Finishing Department, which was Mr.
Cunningham's plan he was putting into effect.
When Errett reported to work on the morning of April 2
(Monday), she found that there were approximately 160
small sample boards to be sanded. After finishing ordered
work, Errett went to plant engineer DePalma and asked
him to show her how to use a new sanding machine.
DePalma came to her department, showed Errett how to
put the belts on the machine and left.
Although there is some testimonial dispute, the overall
facts reveal that this new sanding machine had not been
used previously by Errett. It is also noted that the belts
used on this machine are sandpaper belts.
During the morning of April 2. 1973, Errett used the new
sanding machine. During Errett's operation of the new
16 Cf American Manufacturing Company, Inc 196 NLRB 248, Caterpil-
lar Tractor Co, 113 \LRB 553, Miller's Discount Dept Stores, 198 NLRB
No. 40
it Cunningham', and DePalma's testimony as to the events occurring on
April 2 1973, corroborated Frrett's testimony generally but differed in some
essential degree Considering then testimony and the logical consistency of
all of the facts. f discredit their testimony to the extent that it differ, from
the facts found Cunningham testified to the effect that he unqualifiedly
told Errett to cca'e using the machine Considering the fact that
Cunningham thereafter observed Errett using the machine and did not
reprimand her on such occasion, I discredit his testimony to such effect
DePalma's testimony on direct and cross-examination was contradictory of
itself DePalna's testimony on direct examination was similar to that of
161
sanding machine, three sandpaper belts broke. Errett then
went to see plant engineer DePalma and asked him to
come and look at the machine. Errett told DePalma that
she was concerned with the way it was working, that the
belts were breaking and throwing the boards against the
wall, that she didn't think it was safe. Plant engineer
DePalma told Errett that he would check it in a minute.
When Errett returned to the sanding machine and was
standing and looking at the machine, President Cunning-
ham came to where she was. Cunningham asked Errett in
effect why she wasn't working. Errett related to President
Cunningham the problem and the fact that she believed the
machine unsafe. President Cunningham unplugged the
machine and told Errett that if she thought the machine
was dangerous, she shouldn't operate the machine, that she
should go into the next room and work.
President Cunningham left and shortly thereafter plant
engineer DePalma came to the sanding machine, plugged it
in, used it, and told Errett in effect that there was nothing
wrong with the machine, that if she did not want to run it,
he would do the work for her later.17
After plant engineer DePalma told Errett that there was
nothing wrong with the sanding machine, Errett used the
machine until lunchtime, approximately half an hour.
During such operations, one more belt was broken.
After lunchtime Errett continued using the sanding
machine. During the afternoon President Cunningham
continued to watch Errett while she was working.18 There
were several other belts broken during this time of
operation.
In addition to the foregoing, it is noted that neither
President Cunningham nor plant engineer DePalma
thereafter spoke to Errett about her operation of the
machine until 4 p.m. At such time plant engineer DePalma
told Errett not to use the machine any longer, that a
machine repairman had been called and was coming to
look at it the next day.
The parties litigated (1) whether Errett, on April 2, 1973,
intentionally damaged the sandpaper belts and (2) whether
Respondent, on April 2, 1973, believed that Errett had
intentionally damaged the belts.
To an extent, all of the testimony of the witnesses to
these issues appears to be affected by rationalization by the
witnesses. I am persuaded that the evidence preponderates
for a finding that Errett did not intentionally damage the
sandpaper belts. Thus, I am not persuaded that Errett
would have approached both plant engineer DePalma and
President Cunningham before noon about the breaking of
the belts if she had been intentionally breaking the belts.
Further, I am not persuaded that Errett would have
Errett's as to what he said to her about the fact that he would run the
machine if she did not want to use it or felt it unsafe I am convinced that
the remarks related to Errett concerned her opinion on whether the machine
was safe or not Similarly, I do not credit Cunningham's or DePalma's
testimony relating to instructions from Cunningham to DePalma to Errett
not to use the machine Considering the contradictions between Cunning-
ham and DePalma's testimony and Cope's testimony , and the logical
consistency of the facts, I discredit Cunningham and DePalma's testimony
inconsistent with the facts found
is During the afternoon Frrett went to the restroom, was stopped by
employee Overly, and, as previously indicated, was observed by Cunning-
ham while talking to ()verly
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intentionally broken the belts when there was the accom-
panying possibility of injury to herself.
I have considered in connection with the foregoing
findings all of the evidence including Cope's testimony and
the belts in evidence. Cope's testimony may be said to be
to the effect that Errett appeared to be intentionally
causing the ends of the board (to be sanded) to jab or
punch into the belts. The belts, in evidence, reveal
themselves to have been broken in the same identical way.
I am persuaded that such belts reveal both (1) that they
could have been broken by a deliberate jab or punch and
(2) that they could have been unintentionally broken by
the uneven application of pressure upon the board when
pressing the same against the belt for sanding. Thus,
although Cope truthfully believed that what he saw was an
intentional act by Errett designed to break the belt, what
Cope saw was a board having uneven pressure applied to
the same.
Cope credibly testified to the effect that he first told
President Cunningham of his observation in May 1973.
Cunningham testified to the effect that Cope told him of
such observation on April 2, 1973. DePalma and Cunning-
ham testified to the effect that he examined the belts on
April 2, 1973, and that DePalma expressed an opinion that
Errett had "abused" the belts.
Considering the fact that neither DePalma nor President
Cunningham reprimanded Errett on April 2, 1973, that
Respondent was awaiting a visit by the representative of
the sanding machine company to check the machine, and
that President Cunningham discharged Errett on April 3,
1973, before the representative of the sanding machine
company had checked the machine, I do not believe nor
credit Cunningham's and DePalma's testimony to the
effect as set out. And considering the foregoing, I discredit
Cunningham's testimony to the effect that Cope expressed
his observation to him, on April 2, 1973, to the effect that
Errett was intentionally misusing the sander.
In sum, I conclude and find (1) that Errett did not
intentionally cause the sandpaper belts to break on April 2,
1973, and (2) that Respondent did not believe that Errett
had intentionally caused the sandpaper belts to break on
April 2, 1973.
President Cunningham had a meeting with the grievance
committee at 4:30 p.m. on April 2, 1973. What occurred is
revealed by the following credited excerpts from Errett's
testimony.
A. Yes. At the end of the day, at 4:30, we had a
grievance committee meeting in the lunchroom, and
the meeting was pertaining to the wage and seniority
scale Mr. Cunningham was drawing up. It was a verbal
meeting, to let the committee know that he was
working on it, and what he had come up with so far.
Q. Did Mr. Cunningham ask the committee what
they thought about the plan?
A. Yes. He directed his question to me and I
answered, "Well, I guess it's all right. I guess it's okay."
It is further noted that Errett came to the 4:30 p.m.
19 Posted company rules required that employees, who were absent,
report their absence between 8:30 and 9:00 a.m., that if they did not do so.
they would be penalized as being tardy.
grievance committee meeting with her fingers bandaged.
Errett told President Cunningham in effect that she had
hurt her fingers using the sanding machine. President
Cunningham had personnel manager Birt remove the
bandages and examine Errett's fingers. Errett's fingers
appeared red but were not cut.
7. Events of April 3, 1973
Errett did not report to work on April 3, 1973. Around
9:45 a.m. Errett's mother made a telephone call to
Respondent's office to advise that Errett would be
absent.19 Errett's mother spoke to Personnel Manager Birt.
What occurred thereafter is revealed by the following
credited excerpts from Birt's testimony.
Q. And did you relate to Mr. Cunningham the
telephone call?
A. Yes.
Q. And what did you say to Mr. Cunningham?
A. I said that Victoria's mother was on the phone
first. And he said, "Well, is Viki there?" And I asked
her mother, and she said, "Yes, but she is in bed." And
I said, "Well, could you ask her to come to the phone?"
And she did, she come to the phone, and while she was
coming to the phone I conversed with Mr. Cunning-
ham.
Q.
A.
What did you say to him?
He asked me what offense this was and what
was on Viki's record, and I told him that it was not her
second offense, that she had the written warning
already,
THE WITNESS: She said-I meant that she had
received her second offense, written, which I had
already given her written, and he said, "Well, now,
yesterday she broke four or five plant rules which
would be her third offense, and now she is reporting in
late, past the hours that are necessary, and you will
discharge her," which I did.
Q. Did you discharge her?
A. Yes.
Q. What did she say?
A. She asked me why, and I told her, I gave her the
rundown just like I have just given now, the reasons
that she had received her oral warning, and had
received her written warning, and that yesterday she
had broken several company rules, and she said,
"Which ones?" Mr. Cunningham gave me a copy of the
plant rules with a mark beside each one that she had
broken, I read them off to her on the phone at that
time, and I told her at this point that she was calling in
too late according to the rules and regulations, and that
I would have to discharge her.
I find Birt's and Cunningham's testimony as to this incident more
complete and believable than Errett's and credit the facts as indicated and
discredit Errett's testimony that the telephone call was made at 8:45 a.m.
WESTMORELAND KITCHEN, INC. 163
The facts are clear that among the reasons advanced to
Errett as cause for her discharge was (1) abusing company
)roperty, (2) wasting company materials, and (3) not
)beying orders. I do not credit the testimony to establish
:hat other reasons, excepting for the question of calling in
,ate, were told to Errett.
The following excerpts from Respondent's plant rules are
relevant to the issues in this case.
Westmoreland Kitchens, Inc.
Plant Rules
Violation of any rule in Group 2 below will result in the
following:
First Offence-Oral Warning
Second Offence-Written Warning
Third Offence-2 Days off without pay
Fourth Offence-Discharge
Group 2
Violation of Break Time
Violation of Starting or Lunch Break Time
Failure to Follow Orders
Leaving Work station or department
Horse Play or wasting time
Changing job procedure or plant procedure without
approval
Failure to follow accepted safety procedure
Refusing of overtime without doctor's excuse-Not to
exceed 56 hours per week
Absence from work
Failure to follow drawings
Waste of company material
Abusing Company tool or equipment
Personal phone calls (Emergency only allowed)
Using Abusive or Profane language directed at another
person
Spitting on floor or in waste cans
It is also proper to note that Errett had received an oral
reprimand and a written reprimand in late 1972 for
violations of rules in the group 2 of rules set out.
The General Counsel adduced into evidence a copy of
the plant rules which had checkmarks thereon previously
made by President Cunningham as to the rules which he
considered that Errett had violated.
Cunningham testified with respect to the rules which he
considered Errett to have broken. The relevant question is
what violation of rules, if any, motivated Cunningham in
his decision to discharge Errett. Considering Cunning-
ham's testimony, I am persuaded that it was to the effect
that he (at the time of testifying) considered that Errett had
broken certain specified rules. Cunningham's testimony
and the exhibit relating to plant rules reflect that at some
time prior to the trial he had checked the following rules
that Errett had violated.
Group 2
Violation of Starting of Lunch Break Time
Failure to Follow Orders
Leaving Work station or department
Changing job procedure or plant procedure without
approval
Failure to follow accepted safety procedure
Waste of company material
I note further that the General Counsel adduced
evidence relating to what President Cunningham told
foreman Reinshagen about rules and Reinshagen's conten-
tion that Respondent had not followed the rules in
discharging Errett. It suffices to say that if the Respondent
lawfully discharged Errett, such conversation would be
consistent thereto. It also suffices to say that if the
Respondent discriminatorily discharged Errett, such con-
versation would be consistent thereto. I find no value in
resolving the issues in this case from such testimony.
Further, Reinshagen's testimony as to the events, excepting
to the extent set forth in the facts, is unreliable. Reinsha-
gen, as a witness, impressed me as a witness, who wanted
to testify truthfully but who was not one who could set
forth the facts objectively. I am persuaded that his
testimony was largely conclusionary and merely his
opinion of what was said.
Conclusion as to Errett's Discriminatory Discharge
Considering all of the foregoing, I am persuaded and
conclude and find that the Respondent discriminatorily
discharged Errett on April 3, 1973, because of her union
and protected concerted activities.
Errett was clearly the leader and outstanding advocate of
the grievance committee. The facts are also clear that
despite the fact that President Cunningham was willing to
accept the idea of a grievance committee, President
Cunningham desired only a weak committee that would
not disagree with his own course of action. Respondent's
animus was demonstrated by President Cunningham's
annoyance directed toward foreman Crosby when the idea
of the grievance committee was first mentioned. Respon-
dent's animus was also demonstrated when President
Cunningham revealed to employee Ruffner and the others
that those who didn't like the incentive plan could leave,
and when President Cunningham indicated that he could
pack up and leave if they wanted to run things. Further,
Respondent's animus toward Errett is revealed by Presi-
dent Cunningham's surveillance of Errett at work.
Considering all of the foregoing and the asserted reasons
for the discharge of Errett, I am persuaded that the
asserted reasons, at the time, later, and at the trial, are
pretextuous and rationalized reasons used to disguise the
real reason, discriminatory motivation against Errett
because of her union and protected concerted activity.
President Cunningham's testimony in major effect revealed
that he was asserting reasons that he thought he could have
used and not the reasons that actually motivated the
discharge of Errett. The checking by President Cunning-
ham, prior to the trial, of an asserted reason, to wit,
violation of starting or lunch break time, is revealing that
the asserted reasons were pretextuous. Thus, at the trial,
President Cunningham testified to the effect that he was in
error in checking such as a reason . The checking by
President Cunningham, at a time prior to the trial, of
asserted reasons to the effect that Errett had violated rules
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relating to (1) changing job procedure or plant procedure
without approval and (2) failure to follow accepted
procedure is revealing of the use of pretextuous reasons.
There is no evidence that Errett violated such rules, that
Errett was told of such alleged violations. and the overall
facts clearly reveal that such were not the basis for Errett's
discharge. Further, it is revealing that pretextuous reasons
were used when one notes that at a time when President
Cunningham allegedly was checking reasons for Errett's
discharge, he omitted the reason of "abusing company
tools or equipment" when this was what Errett was told at
the time of her discharge and when such was asserted as
being a reason at the trial in this matter. As to the asserted
reason that Errett violated a rule against leaving her work
station or department, the overall facts reveal that this
reason is a pretextuous reason. Thus, the overall facts
reveal that Errett was an expediter, that her job required
her to be in different parts of the plant, that Respondent
knew that her job required her to be in different parts of
the plants, and that Errett was not told that she should not
continue her duties as an expediter. As to the asserted
reason that Errett violated a rule regarding "abusing of
company tools or equipment," I am persuaded that such
reason is also pretextuous and a rationalized reason to
disguise the discriminatory reason. Thus, the facts reveal
that Errett did not intentionally break the sandpaper belts,
that Respondent did not know what caused the belts to
break at the time of Errett's discharge but was awaiting
having the sanding machine checked by a representative
from the sanding machine company.
Further, in connection with all the foregoing, it is noted
that the Respondent did not reprimand or warn Errett
about such alleged infractions, that Respondent skipped a
normal step in its disciplinary procedure, to wit, the giving
of a 2 day suspension, and simply discharged Errett on
April 3, 1973, after learning that she had had an oral and
written reprimand in the past. From all of this, I am
persuaded that President Cunningham was not aware on
April 2, 1973, that Errett had had an oral and a written
reprimand and was close to vulnerability for discharge.
When President Cunningham so learned on April 3, 1973, 1
am persuaded that President Cunningham, because of
discriminatory motivation against Errett, decided to use
the reasons asserted as a pretext to discharge Errett20 In
sum, I conclude and find that the preponderance of the
facts reveals that Respondent discrinunatorily discharged
Errett on April 3, 1973, because of her union or protected
concerted activities21 Such conduct is violative of Section
8(a)(3) and (1) of the Act.
IV. UHF EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
20 Even weic I to believe that President Cunningham suspected that
Errett had intentionally damaged the sandpaper belts. 1 would be persuaded
that the dominant motivation was to get rid of Errett for discriminatory
reasons Respondent's surveillance of Errett 's work because he believed she
was talking about committee work throughout the plant coupled with the
above, occurring in connection with the Respondent's
operations described to section I, above, have a close,
intimate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes, burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that the Respondent discharged
Victoria Bobnar Errett in violation of Section 8(a)(3) and
(1) of the Act, the recommended Order will provide that
Respondent offer her reinstatement to her job, and make
her whole for loss of earnings within the meaning and in
accord with the Board's decisions in F. W. Woolworth
Company. 90 NLRB 289: Isis Plumbing & Heating Co., 138
NLRB 716, except as specifically modified by the wording
of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Westmoreland Kitchen, Inc., the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Grievance Committee (Westmoreland Kitchen,
Inc.), is , and has been at all times material herein , a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Victoria Bobnar Errett, Respondent
has discouraged membership in a labor organization by
discriminating in regard to tenure of employment, thereby
engaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. By the foregoing and by interfering with, restraining,
and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent engaged in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
pretextuously asserted reason that she violated a rule against leaving work
station or department so reveals
!1 As the facts in this case reveal , the grievance committee was a labor
organization within the meaning of the Act.