Winges Company, Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1982

263 N.L.R.B. 152 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
Winges Company, Inc. and Teamsters Local 651, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 9-CA-15440-1, -2,
-3, 9-CA-16076, 9-CA-16479, and 9-CA-
16840
August 5, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On February 22, 1982, Administrative Law
Judge Bruce C. Nasdor 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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Winges Com-
pany, Inc., Nicholasville, Kentucky, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
t Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
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.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with dis-
charge for distributing union authorization
cards.
WE WILL NOT threaten to discharge employ-
ees for their participation in any representation
hearing.
WE WILL NOT threaten employees with
stringent enforcement of our absenteeism
policy because employees support the Union.
WE WILL NOT solicit employee complaints
and grievances, or promise our employees in-
creased benefits and improved terms and con-
ditions of employment.
WE WILL NOT refuse to bargain in good
faith with the Union by refusing to furnish in-
formation or to cease granting unilateral pay
increases conditioned upon the Union's with-
drawing previously filed unfair labor practice
charges.
WE WILL NOT grant increases without prior
notice to the Union and without affording the
Union an opportunity to negotiate and bargain
as the exclusive representative of our employ-
ees with respect to such acts of conduct. The
bargaining unit is:
All full-time and regular part-time concrete
and blacktop employees at and out of our
Nicholasville, Kentucky facility including
truckdrivers, but excluding all office clerical
employees, guards and all professional em-
ployees and supervisors as defined in the
Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer to Aubrey Padgett immedi-
ate and full reinstatement to his former posi-
tion or to a substantially equivalent position
without prejudice to his seniority or other
rights and privileges, and WE WILl. compen-
sate him for any loss of pay suffered by reason
of his termination, with interest.
WE WILL furnish the Union a copy of our
wage and benefit survey and we will also
make available to the Union our financial and
business records which we contend support
our alleged inability to pay increases in wages
and other economic benefits to our employees.
WE WILL recognize and bargain collectively
with Teamsters Local 651, affiliated with In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive representative of the employ-
ees in the appropriate unit referred to above
263 NLRB No. 21
152
4
and, if an understanding is reached, embody
such agreement in a written signed contract.
WINGES COMPANY, INC.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge: This
case was heard before me at Lexington, Kentucky, on
September 14 and 15, 1981. The consolidated amended
complaint alleges independent violations of Section
8(a)(l) l and (5), and a violation of Section 8(a)3) of the
Act, in the discharge of Aubrey Padgett. The allegations
come within the purview of the National Labor Rela-
tions Act (herein called the Act).
Upon the entire record,2 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
It is admitted, and I find, that Respondent is a Ken-
tucky corporation with an office and place of business
located at Nicholasville, Kentucky, where it is engaged
in the building and construction industry as a paving
contractor. During the past 12 months, a representative
period, Respondent in the course and conduct of its busi-
ness operations performed services valued in excess of
$50,000, in States other than the State of Kentucky. Re-
spondent is now, 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
Teamsters Local 651, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is, and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
111. THE APPROPRIATE UNIT
The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time concrete and
blacktop employees at and out of Respondent's Ni-
cholasville, Kentucky facility including truck-
drivers, but excluding all office clerical employees,
guards and all professional employees and supervi-
sors as defined in the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is in the business of performing blacktop
paving and concrete work.
At the hearing, counsel for the General Counsel made a motion to
add another related 8(aXI) allegation. I granted the motion.
I Counsel for the General Counsel's unopposed motion to correct the
transcript is hereby granted.
WINGES COMPANY, INC.
Employees James Tate and Aubrey Padgett went to
the Union's office on May 23, 1980,3 where they met
with Rick Silvers, the union organizer. They told him
they were interested in organizing Respondent's employ-
ees. Silvers gave each of them a union authorization
card, which they executed. Silvers supplied them with 30
additional cards with which they were to solicit their co-
workers.
On the next regular workday, May 27, Padgett told
the employees on his work crew that he had union cards
in his automobile, and that they could sign them and
leave them in his glove compartment. Tate advised his
work crew of the same thing. Several of the employees
signed union authorization cards and left them in Pad-
gett's automobile.
Clarence Smith, one of Respondent's group leaders,
testified that Padgett showed him the union cards, of-
fered him a card, and told everyone that the cards were
in Padgett's glove compartment. Blond Holt, Respond-
ent's superintendent for 14 years, testified with respect to
Smith's supervisory authority. Holt testified that he and
Smith tell employees what work to perform. Moreover,
according to Holt, Smith uses his own independent judg-
ment for his own decision making when telling the
people what work to perform. Furthermore, if a man
wants to take off early and he asks Smith, Smith has the
authority to release the individual. The following testi-
mony by Holt reveals his concept of Smith's standing as
a rank-and-file employee:
Q. Did you ever talk to Smith about the Union?
A. We talked a little bit, yes sir.
Q. I thought you said Lodgston was the only one
you ever talked about the Union with?
A. Employees, you know, my workers. But
Smith was different.
Ray Lodgston worked for Respondent as a truck-
driver. He testified that sometime in May or June Holt
approached him and asked him if he had any information
about the Union with him. Lodgston responded that he
did not, and Holt allegedly stated that Padgett or Tate
would probably approach him, Lodgston, about the
Union. Lodgston testified further that Holt stated that if
he caught anyone passing out union cards he would fire
them. Holt testified that he never saw union authoriza-
tion cards, but, "I heard some of the men saying they
were going to try to get a union but I never did see any
union cards." Holt denied the conversation with Lodg-
ston.
Padgett testified that on June 4, Holt arrived at the
jobsite on Forbes Road where he, Lodgston, and Sparks
were working. According to Padgett, Holt walked up to
him (the employees had just been on their dinner break)
and pointed a finger in his face stating, "the first that he
caught giving out union cards would be fired and he said
that goes for all men." Lodgston corroborated Padgett's
testimony. Sparks was too far away to hear what Holt
said, but he did see him point his finger at Padgett.
3 All dates are in 1980, unless otherwise indicated.
153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holt denied the testimony of these witnesses and
averred that neither Lodgston or Tate was on that job-
site on that day.
On June 6, at noon, Holt gave Padgett his paycheck
and said that he was laying him off, but would call him
back in 2 or 3 weeks. Padgett testified, and Respondent
confirms that the job was only half completed. Holt tes-
tified that he let Padgett work the rest of the day be-
cause Padgett said he would not hit the curbs anymore.
Holt assisted Padgett the rest of the day.
Respondent's employees are paid 2 weeks after a pay
period ends. Therefore, on June 10, Padgett went to Re-
spondent's office in an effort to get his paycheck. He was
given a letter signed by Winges Company, Inc., which
stated, "This is a letter of termination of employment
with Winges Company, Inc., due to unexpected slow-
down in business and your poor work performance."
After Padgett's termination, Holt, Respondent's superin-
tendent, and Holt's son, Billy Holt, 4 operated the roller
which Padgett had operated during his employ. Three
weeks after Padgett's discharge, a new employee, Sam
Webb, was hired to operate the roller.
Holt testified that he discharged Padgett because of a
slowdown in work, "lack of work," and poor workman-
ship. Although Holt did not set forth in the letter to Pad-
gett what he meant by poor work performance, he stated
that he meant Padgett had damaged curbs with the
roller. Holt did not put anything on Padgett's unemploy-
ment compensation form with respect to Padgett's break-
ing curbs, nor did he direct his secretary to do so. He
was at a loss to explain why. He did admit that he never
fired anyone for breaking curbs and that he really did
not discharge Padgett for damaging curbs. His response
as to the reason for terminating Padgett was "I really
didn't discharge Padgett on tearing the curbs up. It's the
other things, too, you know." The "other things" were
never delineated by Holt.
Lodgston testified that prior to Padgett's termination
Holt spoke to him stating generally that Padgett was a
good roller operator. Tate testified similarly that he
heard Clarence Smith state that Padgett did a good job
rolling. Holt testified further that the quality of Padgett's
work was good, but it became worse immediately prior
to his discharge. Padgett contends that Smith told him
on one occasion to be careful with the curbs, but never
gave him any kind of warning about rolling the curbs, or
about anything else. Respondent's president, William B.
Gess, Jr., testified that if Padgett ever got any kind of
written warning, he, Gess, was not aware of it.
Lodgston testified that he talked to Holt on the day
Holt returned to Respondent's facility after attending the
representation hearing. According to Lodgston, he asked
Holt in a joking way why he was not in jail. Lodgston
testified "he [Holt] said you're Goddamn right I am not
in jail I just got two more men fired." Holt named the
men as Fox5 and Tate. The representation hearing oc-
curred sometime after the discharge of Padgett.
4 Billy Holt had never operated the roller before.
$ This may or may not be a typographical error, the reference could
be to Sparks.
On or about August 12 or 13, Gess held an employee
meeting under the office in the garage area. According
to the testimony of Lodgston, approximately 35 employ-
ees were in attendance. Gess allegedly began the meeting
by stating that it was a small company and he did not see
why they needed a union there. Moreover, according to
the testimony, Gess stated that he could not afford a
union and if the employees had any complaints to come
to him and he would try to help them. Gess allegedly
stated that the employees had a right to come to him
with anything they had to settle, and they did not need a
union to solve their problems. Gess testified that some of
the employees aired their gripes. For example, a driver,
for some unknown reason, stated he had not gotten his
raise and Gess responded that he would take care of
that. Other employees stated that they had not gotten
their group insurance after 6 months. He told the em-
ployees that they could have their own group insurance
or union. Furthermore, according to Gess, he advised
the employees that he had an open door policy and if the
employees had any complaints they could bring them to
him, and he would talk them over with the employees.
Lodgston testified that, when he received his paycheck
on October 31, attached to it was a warning. He testified
as follows:
I had been out there that week and attached to my
check there was a piece of paper signed by Mr.
Gess stating that I had been absent so many days
during a certain period and it would have to stop
and when Mr. Holt handed my check to me he said
this is what your fucking union got you and I said,
what do you mean, and he said, well since the
Union came in, before every call-in, what time you
called in, why you weren't coming in to work and
the policy is one time, warning, second time days
off, and the third time discharge.
Lodgston and Holt testified that on the day after the
representation election Holt tore the official National
Labor Relations Board election signs off of the door
where they were posted, crumbled them up and threw
them away. While engaging in this, Holt allegedly stated,
"I got some of the lyingest sons-of-bitches in this coun-
try."
The 8(a)(5) allegations
Richard W. Silverj, the Union's business agent and or-
ganizer, testified in support of the 8(a)(5) allegations. The
parties had approximately 11 or 12 negotiating sessions.
Representing Respondent were A. D. Spayth, a labor re-
lations consultant, and Bob Rulge, vice president of Re-
spondent. Silvers represented the Union and Donald
Sparks was present as the employee representative.
According to Silvers, each time an economic item was
discussed, Spayth took the position that the Company
needed to remain competitive and that was his reason for
offering a minimal wage increase. Spayth contended that
Respondent had conducted a survey in the area and Re-
spondent's wages were competitive with the other em-
154
WINGES COMPANY, INC.
ployers in the area.6 Silvers requested a copy of the
survey in order to verify the facts as set forth by Spayth.
He was provided with the numerical results of the
survey matched up with the names of the employers
which were identified by letters of the alphabet, rather
than the actual name of the employer. This document
was received in evidence as General Counsel's Exhibit 3.
Silvers testified that this information in this form was
valueless. On April 3, 1981, Silvers wrote a letter to
Spayth 7 requesting to review Respondent's financial
records including the breakdown of overhead and pay-
roll. This request was made as a result of Respondent's
contention that economic concessions could not be
granted. The information was never forthcoming. Nei-
ther Spayth nor Rulge testified at this proceeding.
On May 4, 1981, Spayth wrote to Silvers reaffirming
what had been discussed at a meeting on April 28, 1981.8
Respondent expressed, inter alia, a willingness to contact
the Union before any future wage changes were made
for the employees and to give the Union a chance to
voice an opinion. Furthermore, Spayth offered to allow
Silvers to survey Respondent's financial records, and
make the wage survey available. The caveat was that Sil-
vers was to withdraw the unfair labor practice charges
upon which complaints had issued, prior to Respondent's
meeting with the Union on April 28, 1981.
Upon motion by the General Counsel, the complaint
was amended at the hearing to allege this conduct as
being violative of Section 8(a)(1) of the Act.
Gess testified that the wage survey was not furnished
because Respondent was only able to get the information
by promising its competitors that the results would be
held confidential.
During the course of the negotiations Silvers found
that wage increases had been granted. General Counsel's
Exhibit 6 reflects that some employees received wage in-
creases. It does not contend that it bargained with the
Union before granting these increases.
V. ANALYSIS AND CONCLUSIONS
A. The 8(a)(1) Allegations
A short time after Padgett and Tate distributed union
cards, Holt told Lodgston that he would probably be ap-
proached by them regarding the Union. He went further
and stated that if he caught anyone passing out union
cards he would fire them. I find this to be a threat and
violative of Section 8(a)(l) of the Act.
Several days later, at the jobsite, Holt approached
Padgett, pointed his finger in Padgett's face, and stated
that he would fire anyone caught passing out union
cards. This is also a violation of Section 8(a)(l) of the
Act, and I so conclude.9
I With reference to the geographical area.
This document is in evidence as G.C. Exh. 4.
s See the document received in evidence G.C. Exh. 7
9 In Lodgston's testimony he used the characterization "son-of-bitch,"
who was passing out union cards. Padgett on the other hand made no
reference to that characterization. It is of no consequence because the
threat clearly violates Sec. 8(a) (1) of the Act.
I credit Lodgston's testimony that he was told by Holt
that Sparks and Tate would also be fired. This comment
was made after the termination of Padgett and on the
day of the representation hearing. Holt contended that
he did not attend the representation hearing. In my view,
whether or not he attended the representation hearing is
irrelevant, and I conclude that the statement was made
and as such violates Section 8(a)(1) of the Act.
The record reflects that some time after the com-
mencement of the Union's organizational campaign Re-
spondent required its employees to adhere to a stricter
policy of discipline. l ° Therefore I find and conclude that
on October 30 when Holt gave Lodgston a warning
letter he stated that was what the Union had gotten him.
Accordingly, this comment violates Section 8(a)(1) of the
Act, as it informs an employee that he is being penalized
for selecting the Union as his collective-bargaining repre-
sentative.
Suffice it to say Holt impressed me as an unreliable
witness. His substantive testimony and demeanor on the
witness stand convince me that he is a witness unworthy
of belief.
I find Padgett and the other witnesses called to testify
by counsel for the General Counsel to be credible.
They each provided minor factual twists and variations.
This demonstrates to me that they were telling the truth
and lends support to my conclusion that they had not re-
hearsed prefabricated testimony. Where there is any con-
flict between their testimony and the testimony of Holt I
accept their versions as the true and accurate versions.
With respect to the allegation involving Gess, he ex-
pressly admitted soliciting grievances, and he told the
employees he could solve their problems if they ap-
proached him, promised to resolve their problems, and
he suggested forming a "company" union. Accordingly,
I find that his conduct violates Section 8(a)(l) of the
Act.
Respondent both orally and in writing offered to pro-
vide previously requested information which it was obli-
gated to furnish under the law. The quid pro quo for fur-
nishing this information was that the Union withdraw
the pending unfair labor charges upon which complaints
had issued. Such conduct is a clear violation of Section
8(a)(1) of the Act. See John C. Mandel Security Bureau,
Inc., 202 NLRB 117 (1973).
B. The 8(a)(5) Allegations
Respondent's defense with respect to its failure to fur-
nish the wage survey and the names of the employers
surveyed is confidentiality. In my view, the Union
needed and was entitled to the information to check the
accuracy of the data secured by Respondent. The Board
in General Electric Company, 192 NLRB 68 (1971), found
that confidentiality was not a defense in a similar set of
circumstances. The Board was later affirmed by the
Sixth Circuit Court of Appeals in N.L.R.B. v. General
Electric Co. (IBE1W, 466 F.2d 1177 (1972). Accordingly,
to The absenteeism policy.
1i Although no sequestration rule was in effect, all of the witnesses
with the exception of Gess chose to remain out of the hearing room
during the course of the hearing.
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Respondent violated Section 8(a)(5) of the
Act, when it refused to furnish the Union all of the infor-
mation compiled in the wage survey and by refusing to
allow the Union to review its financial records. Unrefut-
ed testimony reflects that during the course of the nego-
tiations Respondent, on several occasions, raised remain-
ing competitive as the reason it could only grant a mini-
mal wage increase. As counsel for the General Counsel
points out, Respondent was willing to furnish the infor-
mation if the Union withdrew its unfair labor practice
charges.' 2 How concerned then was Respondent about
the confidentiality of the information?
Uncontradicted record evidence, both oral and docu-
mentary, reveals that Respondent granted certain em-
ployees unilateral wage increases. Accordingly, I find
and conclude that, by this conduct, Respondent violated
Section 8(a)(5) of the Act.
As an appropriate remedy for Respondent's violating
Section 8(a)(5) of the Act, I will recommend that the
Board order an extension of the Union's certification
year for 6 months from the time Respondent makes the
information available to the Union.' I See Mar-Jac Poul-
try Company, Inc., 136 NLRB 785 (1962), and Big Three
Industries, Inc., 227 NLRB 1617 (1977).
C. The Discharge of Padgett
The uncontroverted evidence is that Padgett and Tate
went to the Union's office, obtained union authorization
cards, and distributed them at work. Clarence Smith,
who, in my opinion, is a supervisor, and this is supported
by the evidence, had knowledge that Padgett had union
authorization cards in the glove compartment of his
automobile. Moreover, Smith initially was the individual
who recommended to Holt that Padgett be discharged.
This, as it turned out, was an effective recommendation.
This case is rare in that the evidence that Padgett was
terminated because of his union activity is so direct. Holt
heard the men discussing union solicitation and the distri-
bution of cards, pointed his finger in Padgett's face, and
threatened to discharge any man who distributed union
cards.
In my opinion, the "small plant" doctrine referred to
by counsel for the General Counsel in their brief need
not be relied upon under the facts and circumstances of
this case, in view of the fact that the evidence prepon-
derates for finding Smith to be a supervisor within the
meaning of the Act.
There is no lack of union animus in this case. It is fur-
nished by the overall conduct, including the 8(a)(1) vio-
lations engaged in by Holt and Gess.
Respondent attempted to shift defenses or reasons for
the discharge of Padgett. At the hearing it raised for the
first time the reason Padgett was discharged was for
taking gasoline. Moreover, curb damage was never men-
tioned in Padgett's termination letter nor was it set forth
in his unemployment form. Board law teaches that when
a respondent shifts defenses for the discharge of union
activists it is reasonable and justifiable to conclude that
I I find this to be a separate, independent violation of Sec. 8(aX(1) of
the Act.
'3 See the section entitled "Remedy."
neither reason is the real reason but that the termination
was as a result of an employee's union activity. See Pil-
grim Life Insurance Company, 249 NLRB 1228 (1980). In
my view Respondent did not have a dual motive for the
discharge, but simply seized upon a pretext. Wright Line,
a Division of Wright Line, Inc., 251 NLRB 1083 (1980).
Padgett was allegedly discharged for scratching curb
with a roller on a job for James E. Humphrey, Jr. Re-
spondent attempted to prove that the damage to the box
curb which Padgett allegedly scratched was extensive.
Holt acknowledged that it is easier to damage box curb
than what is known as lip curb. Moreover, his testimony
reveals that a grater machine does more damage than a
roller because it has a sharper edge. Russell Harris, a
construction superintendent and one of Respondent's wit-
nesses, testified that curbs are scratched on every black-
top job, the kind of job Padgett was working on. More-
over, he testified that breaks caused by a grater are ab-
normal damage and considered to be of a major dimen-
sion, whereas skinning or scratching the curb which is
caused by a roller is not major and is less expensive to
repair. Furthermore, Smith testified that there were nu-
merous breaks in the curb from a grater which as there
before Padgett's blacktop crew even arrived at the job.
Respondent's Exhibit 1 is a letter from Humphrey' 4 to
Respondent dated September 10, more than 3 months
after Padgett's discharge and 2 months after the com-
plaint issued. It is obvious that this letter was an ama-
teurish attempt to document the discharge of Padgett
after the fact-way after the fact. The humor in the
letter is its reference to broken curbs. Evidence reflects
that curbs are broken by a grater. Padgett operated a
roller which may or may not cause scratches. Ergo, the
letter does not even refer to Padgett. Respondent fired
the wrong man!
The record is replete with evidence that curbs are
damaged by rank-and-file employees, and managerial em-
ployees upon occasion. Moreover, an employee, Mike
Coffey, damaged curbs according to Holt's testimony but
he was not terminated.
Respondent's weak contention that there was a sudden
reduction in business was never supported by any sub-
stantial evidence. Indeed at least one employee was hired
shortly after Padgett's termination, and the evidence re-
flects that Billy Holt had never operated the roller in the
past. Furthermore, the evidence reflects that the job had
not been completed at the time Padgett was terminated.
Accordingly, based on the credited testimony and the
totality of the evidence, I conclude that Padgett was
fired in violation of Section 8(a)(l) and (3) of the Act.
CONCLUSIONS OF LAW
I. Winges Company, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters Local 651, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
"i Humphrey is the individual who contracted the job in question with
Respondent. He was president of Unity Structures, Inc.
156
WINGES COMPANY, INC.
and Helpers of America is a labor organization within
the meaning of Section 2(5) of the Act.
3. Clarence Smith, characterized by Respondent as a
group leader, is a supervisor within the meaning of Sec-
tion 2(11) of the Act.
4. All full-time and regular part-time concrete and
blacktop employees at and out of Respondent's Nicholas-
ville, Kentucky facility including truckdrivers, but ex-
cluding all office clerical employees, guards and all pro-
fessional employees and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act.
5. By threatening employees with discharge for distrib-
uting union authorization cards, Respondent violated
Section 8(a)(1) of the Act.
6. By threatening to discharge employees for their par-
ticipation in the representation hearing, Respondent vio-
lated Section 8(a)(l) of the Act.
7. By threatening employees with a more stringent ab-
senteeism policy as a result of their union support and
activities, Respondent engaged in conduct violative of
Section 8(a)(1) of the Act.
8. By soliciting employee complaints and grievances,
and promising its employees improved terms and work-
ing conditions as well as increased benefits, Respondent
engaged in conduct violative of Section 8(a)(1) of the
Act.
9. By refusing to furnish the Union all of the informa-
tion compiled in the wage survey and by refusing to
allow the Union to review its financial records, Respond-
ent has engaged in conduct violative of Section 8(a)(5) of
the Act.
10. By granting unilateral wage increases, Respondent
has engaged in conduct violative of Section 8(a)(5) of the
Act.
II. By laying off and then discharging its employee
Aubrey Padgett because he engaged in union and con-
certed activities, Respondent violated Section 8(a)(1) and
(3) of the Act.
12. By offering the Union the information it requested,
and offering to cease unilateral wage increases if the
Union withdraws its unfair labor practice charges, Re-
spondent violated Section 8(a)(1) of the Act.
13. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(l), (3),
and (5) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having concluded and found that Respondent discri-
minatorily discharged Aubrey Padgett, I recommend
that it offer him immediate and full reinstatement to his
former, or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
In addition, I recommend that Respondent make Padgett
whole for any loss he may have suffered by reason of the
discrimination against him, by payment to him, the sum
of money equal to that which he would normally have
earned from the date of his discharge, less net earnings
during said period. Backpay shall be computed according
to F. W. Woolworth Company, 90 NLRB 289 (1950), and
with interest computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). (See, gener-
ally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).)
As an appropriate remedy for Respondent's 8(a)(5)
conduct, I shall recommend that it be ordered to furnish
the Union with its entire wage survey and allow the
Union to review its financial records.
In Big Three Industries, supra, 1619, the Board stated:
In order to ensure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit.
In the case herein, the facts demonstrate that the parties
bargained for approximately 6 months. I recommend that
the Board order that the Union's certification year be ex-
tended for 6 months from the time Respondent makes
the information referred to heretofore available to the
Union.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER ' 5
The Respondent, Winges Company, Inc., Nicholas-
ville, Kentucky, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening employees with discharge for distrib-
uting union authorization cards.
(b) Threatening to discharge employees who partici-
pate in representation hearings.
(c) Threatening employees with more stringent absen-
teeism policies because they support the Union.
(d) Soliciting employee complaints and grievances, and
promising employees increased benefits and improved
terms and conditions of employment.
(e) Failing and refusing to furnish the Union with fi-
nancial and business information and a copy of the wage
survey.
(f) Granting unilateral wage increases to discourage
union interest and/or affiliation.
(g) Offering the Union information and offering to
cease unilateral wage increases if the Union withdraws
its unfair labor practice charges.
'I In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Aubrey Padgett immediate and full reinstate.
ment to his former position or, if such position no longer
exists, to a position which is substantially equivalent
thereto, without prejudice to any seniority or other
rights and privileges, and make him whole for any loss
of pay he may have suffered by reason of the discrimina-
tion against him, with interest, as provided in the section
herein entitled "The Remedy."
(b) Furnish the Union with a copy of the wage and
benefit survey and make available financial and business
records.
(c) Post at its premises at Nicholasville, Kentucky,
copies of the notice marked "Appendix."'1 Copies of
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
said notice, on forms provided by the Regional Director
for Region 9, shall, after being duly signed by an author-
ized representative of Respondent, be posted immediately
upon receipt thereof and maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Respondent shall take reasonable steps to ensure
that said notices are not altered, defaced, or covered by
other material.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports and all other records neces-
sary to ascertain and compute the amount, if any, of
backpay due under the terms of this Order.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
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."
158