America Furniture Co., Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1989

293 N.L.R.B. 408 (N.L.R.B. 1989)

408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
American Furniture Company, Incorporated, a sub-
sidiary of Ladd Furniture , Inc and U B C Mid-
Atlantic Industrial Council , United Brotherhood
of Carpenters and Joiners of America, AFL-
CIO Cases 5-CA-18657-1, 5-CA-18657-2, 5-
CA-18830, and 5-CA-18884
March 24, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 9, 1988, Administrative Law
Judge John H West issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep
tions and a supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,I and
i The Respondent and the General Counsel have excepted to some of
the judge s credibility findings The Board s established policy is not to
overrule an administrative law judge s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
The judge inadvertently stated in sec I A par 44 of his decision that
employee James Goodman testified that he had a conversation with
Chilhowie Plant Superintendent Rouse on February 26 1987 Goodman
testified that the conversation occurred on March 26 1987
Member Cracraft who did not participate in Sunnyvale Medical Clinic
277 NLRB 1217 ( 1985) finds it unnecessary to rely on that case in adopt
mg the judges finding that the Respondent violated Sec 8(a)(1) by inter
rogating employees Debra Parks and James Stewart about union meet
ings
2 We agree with the judge that Chilhowie Plant Manager Danny
Kilby in a speech to employees unlawfully informed them of the futility
of selecting the Union as their collective bargaining representative We
conclude that Kilby s statement that he had no intention of accepting the
Union when combined with his statement that he would dispose of union
supporters honestly or dishonestly constituted an unlawful expression to
employees of the futility of selecting the Union as their collective bar
gaining representative In reaching this conclusion we do not rely on
Georgetown Dress Corp 201 NLRB 102 (1973) We find it unnecessary to
pass on the judges finding that Marion Plant Manager William Callen
by stating in a speech to employees that he had no intention of accepting
the Union made an unlawful statement of futility because so finding
would be merely cumulative and would not affect the Order
The judge found that the Respondent did not violate Sec 8(a)(3) and
(1) of the Act by issuing an oral warning to Michael McGhee We find it
unnecessary to pass on this allegation because the finding of such an addi
tional violation would be cumulative and would not affect the Order
We agree with the judge s conclusion that Callen unlawfully interro
gated employee Larry Hall by asking him for advice regarding the
course of conduct Callen should take toward an employee that Callen
had heard was supporting the Union We find that under all the circum
stances the interrogation was coercive In so finding we note that Hall
was not an open and active union supporter that Callen is the plant man
ager and that this was not an isolated incident We note also that the
information sought by Callen indicated to Hall that the Respondent was
contemplating action against an employee due to that employees union
activity See Rossmore House 269 NLRB 1176 ( 1984) affd sub nom
Hotel & Restaurant Employees Local 11 v NLRB 760 F 2d 1006 (9th Cir
1985)
conclusions , 2 as modified , but not to adopt the rec-
ommended Order 3
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by issuing writ-
ten warnings to employees Debra Parks and Janie
Gillespie for violating its no -solicitation or no-dis-
tnbution rule The judge found further that the Re-
spondent violated Section 8(a)(1) by selectively and
disparately enforcing its no -solicitation or no -distri
bution rule In finding that the warnings violated
Section 8 (a)(3) and ( 1), the judge found that the
Respondent failed to present evidence of any spe-
cific activity engaged in by Parks or Gillespie that
violated its rule against solicitation and justified the
issuance of the warnings Accordingly, the judge
found , and we agree , that the warnings were issued
to Parks and Gillespie because they were union ac-
tivists rather than because of any solicitation in
which they engaged We conclude, however, that
the judge's finding that the Respondent violated
Section 8 (a)(1) by selective and disparate enforce-
ment of its no-solicitation or no -distribution rule is
not supported by the facts of this case
The judge premised his finding of disparate en-
forcement on the issuance of the unlawful warnings
in conjunction with his finding that the Respondent
allowed antiunion solicitation and distribution
during working time We find, however, that the
record does not support the judge's finding that the
Respondent permitted antiunion solicitation and
distribution during working time There is no basis,
therefore , for the finding that the Respondent dis
parately enforced its no -solicitation or no-distribu
tion rule
The testimony adduced at the hearing indicates
that employees distributed antiunion materials at
the timeclock as employees were returning from
lunch In addition , one employee testified that as
she was clocking out she signed an antiunion peti
tion in the possession of another employee standing
near the timeclock, although she was not solicited
to do so The evidence thus indicates that any an-
tiunion solicitation took place not during working
time but as employees were returning from their
lunchbreak or clocking out after their shift The
3 In the remedy section of his decision the judge inadvertently failed
to provide that the backpay due employees as a result of the discrimina
tion against them is to be computed in the manner prescribed in F W
Woolworth Co 90 NLRB 289 (1950)
In addition the judge found that the Respondent violated Sec 8(a)(1)
and (3) by giving employee Debra Parks an evaluation in which she re
ceived substandard ratings The Respondents personnel manager testified
that the substandard ratings had a bearing on the wage increase Parks re
ceived The judge however pointed out that the wage increase granted
to Parks was in line with her earlier increase granted prior to her union
activity As it is unclear whether the substandard ratings did affect the
wage increase received by Parks we leave the resolution of this issue to
the compliance stage of this proceeding
293 NLRB No 49
AMERICAN FURNITURE CO
only evidence indicating that antiunion solicitation
took place during working time was testimony by
one employee that she was given antiunion material
after being at her job for 5 minutes , since she had
not received the material as it was being distributed
at the end of the lunchbreak This was , however,
an isolated incident , and there was no evidence
that the Respondent was aware of its occurrence
We find that the foregoing evidence is insuffi-
cient to establish that the Respondent allowed an-
tiunion solicitation during working time In the ab-
sence of evidence that the Respondent permitted
antiunion or other solicitation during working time
in addition to unlawfully issuing warnings to Parks
and Gillespie , a finding that the Respondent dispar-
ately enforced its no solicitation rule is not war
ranted We shall , accordingly , dismiss the part of
the complaint alleging that the Respondent violated
Section 8 (a)(1) of the Act by selectively and dis
parately enforcing its no solicitation and no distri-
bution rule
AMENDED CONCLUSIONS OF LAW
Delete paragraph 3(b) and reletter the subse-
quent paragraphs
ORDER
The National Labor Relations Board orders that
the Respondent , American Furniture Company, In-
corporated , a subsidiary of Ladd Furniture, Inc,
Marion , Virginia , its officers , agents, successors,
and assigns, shall
1 Cease and desist from
(a) Interrogating its employees regarding union
meetings
(b) Interfering with handbilling for organization
al purposes
(c) Keeping under surveillance a meeting during
which employees were engaged in union activities
(d) Threatening employees with unspecified re
prisals in order to discourage their participation in
union activities
(e) Informing employees that it would be futile
for them to select the Union as their collective bar
gaining representative
(f) Threatening employees by indicating that it
would use dishonest means to curb their union sup
port
(g) Threatening employees that work would be
transferred away from their plant should they
select the Union as their collective bargaining rep-
resentative
(h) Interrogating employees and creating the im
pression of surveillance of their union activities
(i) Threatening employees with discharge be
cause of their activities on behalf of the Union
409
0) Unlawfully discharging employees in retalia
tion for their exercise of rights guaranteed under
Section 7 of the Act
(k) Unlawfully issuing warnings to employees in
retaliation for their exercising rights protected by
the National Labor Relations Act
(1) Unlawfully denying a wage increase in retalia-
tion for union activities
(m) Unlawfully giving an employee an evalua
tion containing substandard ratings because of that
employee 's union activities
(n) Unlawfully issuing written warnings to em-
ployees for violation of the no solicitation or no-
distribution rule because of their union activities
(o) In any like or related manner interfering
with, restraining , or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the purposes of the Act
(a) Offer David Browning and Larry Hall imme-
diate and full reinstatement to their former jobs or,
if those jobs no longer exist , to substantially equiv
alent positions, without prejudice to their seniority
or any other rights or privileges previously en
joyed , and make them whole for any loss of earn
ings and other benefits suffered as a result of the
discrimination against them , in the manner set forth
above and in the remedy section of the judge's de
cision
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way
(c) Remove from the personnel files of David
Browning , Larry Hall, Debra Parks , Janie Gilles
pie, and Michael McGhee all documents that relate
to the Respondent 's actions that have been found
to be unfair labor practices , and make whatever
record changes are necessary to negate the effect
of these documents and the Respondent 's unlawful
actions
(d) Make Michael McGhee whole for any loss of
earnings he may have suffered by reason of the Re
spondent 's unlawfully refusing and failing to grant
him a wage increase effective January 8, 1987, in
the manner set forth above and in the remedy sec-
tion of the judge 's decision
(e) Make Debra Parks whole for any loss of
earnings she may have suffered as a result of the
Respondent ' s unlawfully giving her substandard
ratings , in the manner set forth above and in the
remedy section of the judge 's decision
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(g) Post at its Chilhowie and Marion, Virginia
plants, copies of the attached notice marked 'Ap-
pendix A "4 Copies of the notice, on forms provid-
ed by the Regional Director for Region 5, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme
diately upon receipt and maintained for 60 consec
utive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
4 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT interrogate employees regarding
union meetings
WE WILL NOT interfere with handbilling for or
ganizational purposes
WE WILL NOT keep under surveillance a meeting
during which employees are engaged in union ac
tivities
WE WILL NOT threaten employees with unspeci-
fied reprisals in order to discourage their participa-
tion in union activities
WE WILL NOT inform employees that it would be
futile for them to select the Union as their collec
tive-bargaining representative
WE WILL NOT threaten employees by indicating
that we would use dishonest means to curb their
union support
WE WILL NOT threaten employees that work
would be transferred away from their plant should
they select the Union as their collective-bargaining
representative
WE WILL NOT interrogate employees and create
the impression of surveillance of their union activi
ties
WE WILL NOT threaten employees with dis
charge because of their activities on behalf of the
Union
WE WILL NOT discharge employees in retaliation
for their exercising rights protected by the Nation-
al Labor Relations Act
WE WILL NOT issue warnings to employees in re-
taliation for their exercising rights protected by the
National Labor Relations Act
WE WILL NOT deny any employee a wage in
crease in retaliation for that employee's union ac
tivity
WE WILL NOT give an employee an evaluation
containing substandard ratings because of that em-
ployee's union activity
WE WILL NOT issue written warnings to employ-
ees for violation of our no-solicitation or no distri
bution rule because of their union activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer David Browning and Larry Hall
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest
WE WILL notify each of them that we have re-
moved from our files any reference in their dis-
charges and that the discharges will not be used
against them in any way
WE WILL remove from the personnel files of
David Browning, Larry Hall, Debra Parks, Janie
Gillespie, and Michael McGhee all documents that
relate to the Respondent's actions regarding them,
which have been found to be unfair labor practices,
and make whatever record changes are necessary
to negate the effect of these documents and Re-
spondent's unlawful actions
AMERICAN FURNITURE CO 411
WE WILL make whole Michael McGhee for any
loss of earnings, plus interest, he suffered by reason
of our unlawfully refusing and failing to grant him
a wage increase effective January 8, 1987
WE WILL make whole Debra Parks for any loss
of earnings, plus interest, she suffered by reason of
our unlawfully giving her an evaluation in which
she was given substandard ratings
AMERICAN FURNITURE COMPANY,
INCORPORATED, A SUBSIDIARY OF
LADD FURNITURE, INC
James P Lewis Esq, for the General Counsel
Ronald G Ingham Esq (Clements Ingham & Trumpter),
of Chattanooga, Tennessee, for the Respondent
Tony Delorme and Larry Wyatt, of Marion, Virginia, for
the Charging Party
DECISION
STATEMENT OF THE CASE
JOHN H WEST Administrative Law Judge These
consolidated cases were tried in Marion, Virginia, on
November 2-5 and December 1-3, 1987 1 U B C Mid
Atlantic Industrial Council United Brotherhood of Car
penters and Joiners of America, AFL-CIO (the Union)
filed charges and amended charges collectively in the
above described cases The General Counsel on July 30
issued an order consolidating cases amending the com
plaint consolidated complaint and notice of hearing 2
The amended complaint alleges that American Furniture
Company Incorporated, a subsidiary of Ladd Furniture,
Inc (Respondent) committed unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Na
tional Labor Relations Ac, (the Act) Except for certain
violations which it characterizes as minimal , Respondent
denies that it violated the Act
On the entire record3 in this proceeding including my
observation of the witnesses and their demeanor, and
after considering briefs filed by the General Counsel and
the Respondent both in March 1988, I make the follow
ing
FINDINGS OF FACT
I JURISDICTION
Respondent a Virginia corporation is engaged in the
business of manufacturing furniture for retail and nonre
tail sale , as here pertinent at facilities at Chilhowie and
Marion, Virginia The complaint alleges, the Respondent
admits and I find that at all times material Respondent
has been engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act The Union is a labor
organization within the meaning of Section 2(5) of the
Act
II ALLEGED UNFAIR LABOR PRACTICES
A Facts
During the first week of January 1987, the Union com
menced an organizing campaign at the Chilhowie and
Marion plants 4 The alleged unfair labor practices asser
tedly occurred during this campaign, with one exception
Paragraph 9 of the amended complaint alleges that
since on or about August 24, 1986, Respondent has main
tained the following unlawful rule SOLICITATIONS
Except by express permission of Management there shall
be no solicitations or distribution of literature on Compa
ny property during work hours On brief, the General
Counsel concedes that the testimony of Respondent s
personnel director, Barbara Miller, indicates that the
wording of the rule, as quoted above, had been supersed
ed some time prior to the events of this case The rule in
effect in 1986 and 1987 does not contain any unlawful
language Accordingly this allegation will be dismissed
Paragraph 8 of the amended complaint alleges that on
January 6 Respondent, acting through Assistant Foreman
Rufus Mitchell at the Chilhowie plant interrogated its
employees regarding a union meeting Paragraph 15(a)
alleges that Respondent acting through Plant Manager
Danny Kilby at Chilhowie on January 6 at the corner of
Main and Sheffy Streets Marion, kept under surveillance
a meeting during which employees were engaged in
union activities Regarding the former allegation Debra
Parks who is an employee of Respondent at its
Chilhowie plant 5 testified that some time before lunch
on January 6 Mitchell asked her if she heard that there
was going to be a union meeting in Chilhowie Mitchell
indicated that he had heard that the Union was going to
have a meeting somewhere in Chilhowie that evening
Parks told Mitchell that she was not aware of such a
meeting but if he found out where it was she would like
to go Mitchell testified that he did ask Parks about the
union meeting but he asked her as a friend and he asser
tedly had no knowledge of her involvement with the
Union at that time On brief, Respondent contends that
under Sunnyvale Medical Clinic 277 NLRB 1217 (1985)
this allegation should be dismissed because although
Parks was not an open union adherent assertedly it is
clear from her testimony that she was in no way intimi
dated or coerced by Mitchell s questions Under Sunny
vale supra in determining whether questioning is coer
cive, consideration should be given to whether the em
ployee if she is not an open and active union supporter
was especially intent on keeping her support for the
Union hidden from the Respondent, whether there is a
history of employer hostility towards or discrimination
against union supporters, if the nature of the questions
i All dates refer to 1987 unless otherwise indicated
2 The complaint was further amended at the hearing
2 The General Counsels unopposed motion to correct the transcript at
pp 110-121 to reflect the name of Debbie Ball and not Paul is granted
There is no need to rule on Respondents motion to amend the transcript
to reflect that R Exh 13 was entered since the exhibit was received at p
905 of the transcript
* Respondent operates two other plants which is all that remains from
the nine plants it operated before it was taken over by Ladd Furniture
Inc At the time involved here Respondent employed a little under 250
hourly employees at the Chilhowie plant
6 She is one of the two or possibly three employees who contacted the
Union in early January about organizing Respondents employees
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was general and nonthreatening, and whether the indi
viduals had a friendly relationship and their conversation
was casual and amicable Here, it was not demonstrated
that on or before this conversation Parks was an open
and active union supporter Since she decided to play
dumb during this conversation, it would appear that she
was intent on keeping her support for the Union hidden
at that time On the other hand it might be argued that
her statement to Mitchell that she would like to go
was, to a degree a declaration However that declara
tion was made after he asked the question As will be
noted infra, this was not an isolated incident there are a
number of incidents of employer hostility towards or dis
crimination against union supporters The nature of the
information sought was very specific and it involved a
very important protected union activity, employees get
ting together with union representatives to discuss
whether they want to belong to a union While Mitchell
and Parks may have been friends the conversation in
question occurred in their workplace and it was not lim
ited to general information or Parks feelings Mitchell
was seeking to obtain information from Parks on which
the Respondent might in turn take adverse action against
employees Taking all these factors into consideration, in
my opinion the interrogation by Mitchell of Parks was
unlawful
A 2 hour meeting of the employees was held at the
Union Local s hall on Main and Sheffey Streets Marion
starting about 4 p in on January 6 Three of the General
Counsels witnesses testified that there was a pickup
truck parked on Sheffey Street across from the front of
the union hall during the meeting 6 Two of these wit
nesses, Hawthorne and Romans, testified that there was a
man in this truck, which had dealer license plates 7 Haw
thorne, who was only a few feet away from the truck,
identified Kilby as being the man in the truck When
asked if he was the man in the truck Kilby testified that
somebody s lying or mistaken that his pickup truck is
a four wheel burgundy Dodge that he did not know
about the union organizing drive until mid January that
his father works at the Dodge dealership in Marion, that
he did not borrow a vehicle from the Dodge dealership
in Marion in January and that he did not know if he was
at the dealership on January 6 On brief, Respondent
contends that the General Counsels evidence is so gar
bled as to defy the conclusion that Kilby was present
and that [a]llegedly Kilby sat in a red red and white,
B The three witnesses were Parks Gary Hawthorne who worked for
Respondent at Marion some years ago and who now is a union steward
at another company and was at the union hall for union business and
William Romans who is president of the Local and who was at the hall
that evening for union business Parks described the truck as being red
and Hawthorne and Romans testified that the truck was a two tone red
truck with Hawthorne testifying that the other color was silver and
Romans testifying that the other color was white
7 Parks testified that she was not in a position to see if anyone was in
the truck and all she could see was the red front of the truck which
might explain why she did not describe it as having two colors Another
of the General Counsel s witnesses David Browning who was an em
ployee at Respondent s Chilhowie plant testified that just before the in
volved meeting at the union hall which he attended he saw the maroon
four wheel drive pickup truck Kilby normally drives to the plant parked
unoccupied in front of a Dodge automobile dealership in Marion which
is not located on Main or Sheffey Streets
red and silver or maroon Dodge pickup truck depend
mg on which General Counsel witness testified Re
spondent s contention is misleading in that none of the
General Counsels witnesses testified that the truck
parked on Sheffey Street that night was maroon The
only reference to a maroon truck was by Browning and
he was not referring to the truck parked on Sheffey
Street but rather to the truck Kilby normally drives to
the plant, which Kilby describes as burgundy As noted
above Parks was not in a position to see more than the
front of the truck Hawthorne, who was within 10 feet of
the truck, described it as two tone red and silver
Romans who saw more than the front of the truck but
who did not see the truck as closely as did Hawthorne
described the truck as two tone, red and white Consid
ering the different distances and perhaps the different
lighting involved this difference of opinion regarding
the other color is understandable 8 Moreover, Kilby did
not impress me as being a creditable witness He knew
before mid January about the Union s organizing drive
Additionally he made no attempt to explain where he
was the evening of January 6 His father was not called
as a witness to testify that his son did not in fact borrow
a Dodge pickup from the dealership on January 6 In
keeping the involved union meeting under surveillance,
Respondent violated the Act 9
Paragraph 7 of the amended complaint alleges that Re
spondent on January 7 and thereafter at the Chilhowie
plant acting through Kilby Charles Rouse, who is su
perintendent of the Chilhowie plant and Supervisor Bill
King (the thereafter regarding Bill King is limited to
January 8 and 9) more closely supervised employees in
order to discourage their participation in union activities
Before treating this matter however something else
which allegedly occurred on January 7 warrants men
tioning McGhee, who at the time had worked for Re
spondent at Chilhowie for over 5 years testified that for
the first time in his experience there was a supervisory
meeting before 7 am and that when he arrived at the
plant at 6 40 a m he saw named supervisors leaving the
meeting 10 Parks testified that when she arrived for
8 Respondents photographs R Exhs 42-45 were taken from positions
which would not show the exact angle of sight from the involved
window Also it is noted that Ramos observed the involved truck when
it was driven through the intersection of Main and Sheffey Streets
9 Collectively the testimony of Parks and Michael McGhee an em
ployee at Respondent s Chilhowie plant regarding seeing three women
pass the union hall parking lot just before the January 6 meeting in Judy
Rhea s car (she is Kilby s secretary) contains a number of unexplained
contradictions In this light and in view of the fact that one of the secre
tapes Joyce Miller who was allegedly in the car could take this route
to get to her house which is located only a short distance from the lot
and that Rhea could have dropped Miller off on her Rhea s way to pick
up her children at a high school in Marion in my opinion it has not been
demonstrated that the individuals involved were engaged in surveillance
10 On cross-examination counsel for Respondent had McGhee read
into the record the following passage from an affidavit he gave to the
National Labor Relations Board (the Board) The next morning I went
in at 7 00 a m The maintenance man told Debbie Parks the supervisors
was [sic] all there at 5 00 p m [sic] The affidavit does not speak to
McGhee seeing the supervisors leaving the meeting and according to
McGhee the time specified in the affidavit is not correct McGhee subse
quently explained that what he meant by the 7 a in was that was when
the plant began operations for the day and he actually arrived with other
riders 20 minutes early to get a cup of coffee in the cafeteria
AMERICAN FURNITURE CO 413
work at the Chilhowie plant just before 7 a in that day
the foremans parking lot was dust about full, which was
unusual for that time of day Four supervisors at the
Chilhowie plant were questioned by the General Counsel
regarding the alleged unusual early morning supervisors
meeting Foreman Robert Dorsey who became a super
visor in March 1987, testified that Supervisor Dwight
Mumpower, who Dorsey worked with, attended an early
morning supervisors meeting in January 1987 Rouse tes
tified that he did not recall an early morning supervisors
meeting before 7 a in on January 7, that supervisors
have met before 7 am but he could not date any such
meetings and he did not recall if one occurred in January
1987, and that he did not recall if the union drive was
ever mentioned at the early morning meetings in the
winter of 1987 Assistant Foreman Mitchell testified that
there was a supervisors meeting early on the morning of
January 7, which he did not attend that after this meet
ing or more specifically, about 8 am he first learned
about Parks involvement with the Union, and that he
could not recall who told him Kilby testified that there
is no set time for management meetings that he had no
idea whether there was a supervisors meeting on Janu
ary 7 prior to 7 a in and that while he was sure that the
union drive was one of the topics discussed at a supervi
sors meeting at some time in January 1987, he was not
aware of a union meeting with Respondents employees
attending being discussed at any supervisors meeting
held in January 1987
Regarding the above described allegation of closer su
pervision, McGhee testified that beginning on January 7
and continuing for 4 to 6 weeks he ' was watched very
closely by supervisors while he worked, that Supervisors
Charles Rouse, Frank Scott, Charles Bennett, and Carl
Hilton would stand two at a time and watch him during
different periods of the workday and that this differed
from the usual behavior of these supervisors in that
while in the past, before the union drive, they would on
occasion stand and watch what employees were doing,
they did not do it to the extent they began doing it on
January 7 Browning testified that on January 7 Rouse
Scott and Bennett watched people in his department es
pecially him closely, that usually these supervisors
moved back and forth throughout his work area all the
time that while he had seen them, before January 7,
watch employees work on January 7 unlike the usual
few minute observation, the supervisors watched during
most of the day that one or two of the supervisors
would watch at a time and that he did not know if
Rouse, Bennett and Scott had some work problem that
caused them to watch him on January 7 In response,
Rouse testified that it is his practice to observe any ma
chine or anything where low productivity prevails that
he did not necessarily" have any recollection of watch
ing the area where McGhee worked and that on or
about January 7 he did not have any knowledge with
regard to whether McGhee was at that time involved in
any union activity Bessie Rouse, who is an employee at
Respondents Chilhowie plant and whose husband is a
distant cousin to Plant Supervisor Rouse, testified that he
would come into her department, the cabinet room, and
"just stand and watch and look at the furnture' Robert
Primm Jr who is a leadman in the rough mill in Re
spondent s Chilhowie plant testified that from where he
works he could not see McGhee s work station but he
passes McGhee s work station between 6 and 12 times a
day and he has never seen any grouping of Supervisors
Rouse, King, Scott Bennett, and Hilton standing watch
ing McGhee work On brief, the General Counsel argues
that the witnesses Respondent called Bessie Rouse and
Robert Primm Jr, did not effectively rebut the testimony
of McGhee and Browning regarding unlawfully in
creased supervision Respondent contends, on brief, that
the General Counsel has not carried the burden to show
that closer supervision of McGhee or any other employ
ee was engaged in as opposed to the observation of the
production processes for sound business reasons There is
no evidence that Kilby or King engaged in this alleged
unlawful conduct Scott Bennett, and Hilton are not
named in the complaint It appears that it was the prac
tice of Rouse, even before the union drive, to stand and
observe employees, machines, and product The General
Counsels evidence is too general and it is not sufficient
to meet its burden of proof Therefore these allegations
will be dismissed 11
Paragraph 17(a) of the amended complaint alleges that
on or about January 8 Respondent denied a raise to
McGhee Paragaph 20 alleges that on January 8 Re
spondent temporarily changed the job of Parks from pro
duction clerk to the cabinet room Regarding the former,
McGhee testified as follows
A Yes, sir I was-Mr Scott approached me at
1 30 that afternoon [January 8] and said my review
had come in for a raise He told me to go to the
cabinet room office That s where we always go for
our review and on the way there he come back up
to me and told me to go upstairs to the conference
room So, we went into the conference room up
stairs I sat there for, maybe two minutes, which he
had left the room And he had came back and he
said come into Charlie Rouse, his office
So we went into Mr Rouse s office Carl
Hilton-and Charlie Rouse were present at the
time They were already seated We walked in Mr
Scott was in front of me and I was right behind
him Charlie Rouse told Mr Scott to be careful
what he said And we sat down Mr Rouse did
about all the talking
He said I was making six dollars an hour and I
was up, almost with leadman pay Said work was
slow and they at that time couldn t give me a raise
And he said that I wasn t the only one, that they d
had to do that to other people, too And it got quiet
for a few moments Mr Hilton asked Frank Scott
what the top pay was for a band saw operator and
Mr Scott started to answer him and he stopped In
stead, he held the sheet over, my review sheet and
pointed on it to Mr Hilton what it was Mr Hilton
i i The similar allegations 'in par 7 of the amended complaint regarding
the asserted unlawful conduct of two supervisors at Respondent s Marion
plant on February 3 will also be dismissed since there is a total lack of
evidence to support those allegations
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said $7 40 an hour and I thought I heard him clear
ly the first time, but I asked him if he d repeat him
self and he said $7 40 per hour
And there was nothing else said and I said okay
and I got up and went back down the stairs to
work
Q Did you ever get a look at the review sheet
that you mentioned while you were there in the
office on this occasion?
A No, sir I did not 12
Barbara Miller sponsored Respondents Exhibit 16,
which shows that between September 29, 1986, and
August 31, 1987, raises were denied in 20 instances to
employees at the Chilhowie plant, including the involved
raise and a later one involving McGhee Other than
McGhee, the reasons for the denials are not given except
that Miller agreed with counsel for Respondent that the
raises were denied because of [s]omething that would
indicate that in managements [judgment] they are un
worthy of an increase at that point in time Kilby testi
feed that in late 1986 and early 1987, after Ladd acquired
Respondent productivity had to be increased and
McGhee worked on the band saws and that area [the
machine room area] had been notoriously low on pro
ductivity, so we expected increases there and other
places , and that he was sure that other people during
this period had their wage increases postponed, but he
did not know their names On brief, the General Counsel
contends that McGhee s record of raises as covered in
General Counsel's Exhibit 21, shows that McGhee re
ceived regular increases 13 Assertedly, the denial of the
increase on January 8 was in retaliation for McGhee s
union activity Respondent on brief argues that
McGhee was not denied the raise on January 8 for any
reasons related to poor performance and that McGhee
is a somewhat hypersensitive person who views all his
troubles leading back to his union activity' On the one
hand, the General Counsel has shown that McGhee en
gaged in union activity Respondent was aware of his ac
tivity and that there was union animus on Respondent s
part On the other hand, Respondent concedes on brief
that the raise was not denied for poor performance Al
though Respondent introduced evidence showing that
other employees were denied raises during an 11 month
period, the specific reasons for these denials were not
given Respondent did not demonstrate that any other
employee had a raise postponed for the reasons given for
McGhee s postponement Without supporting evidence,
conclusionary statements are not sufficient to demon
strate that the involved allegation lacks merit once the
General Counsel has made a prima facie showing Other
than McGhee s union activity, there was no valid reason
supplied for denying him the raise on January 8 In de
nying the raise Respondent violated the Act
12 The review sheet was received as G C Exh 2 The raters com
ments thereon read as follows [d]enied an increase because of low pro
ductivity off [sic] hand saw This 6-month review according to the
rating sheet was approved by Plant Manager Kilby and Barbara Miller
is The exhibit shows that between May 4 1981 and March 15 1987
McGhee received 15 raises usually every 6 months or sooner
Parks testified that on the morning of January 8
Chilhowie Foreman Danny Davidson told her that she
was being transferred to the cabinet room for 2 or 3 days
to help catch up that at the time she was in production
control inventorying parts of furniture, that in the cabi
net room she put sealant around drawers, stacked draw
ers, swept floors, relieved workers on the line who were
sanding, and put putty on the furniture that the last time
she was taken off her regular job and sent to the cabinet
room on a temporary basis was for 2 days in the summer
of 1986 during which 2 days she performed tasks similar
to those she performed during this transfer, that she re
turned to her regular job on January 13, and that Re
spondent has a history of transferring employees from
one job to another depending on what suit of furniture is
being manufactured and what needs to be done 14 Bar
bara Miller testified that temporary job transfers occur
all the time, that the cabinet department had lost several
people and the plant manager did not want to hire any
body to replace them so people were transferred from
other departments to fill those positions, that Parks had
prior experience in the cabinet room since she worked
there when she first came to Respondent, and that, as
demonstrated by Respondents Exhibit 10, a number of
employees were temporarily transferred between Octo
ber 31, 1986 and August 26, 1987 Kilby testified that
Parks was temporarily transferred to the cabinet room
because he had at that time basically stopped hiring and
began to utilize other employees, and that temporary
transfers occur daily depending on the needs of different
jobs The General Counsel on beef contends that Re
spondent s uncanny timing provides the most com
pelling evidence that an unlawful discriminatory motive
was at work (G C Br 16) On brief, Respondent
argues that Parks temporary transfer as here pertinent,
was not unlawful As Parks concedes, Respondent has a
history of temporary transfers Without more the timing
of this one does not raise it to the level of unlawful con
duct
Paragraph 26 of the amended complaint alleges that on
January 9 Respondent unlawfully issued a written warn
ing to Browning Paragraph 28 of the amended com
plaint alleges that on or about January 9 Respondent im
proved the terms and conditions of employment of em
ployees by changing their payday from Monday to
Friday Regarding the former allegation, Browning testi
feed that on January 9 Assistant Foreman Bennett came
up to him and told him that someone complained about
Browning driving the forklift too fast, that he said al
right to Bennett, that later that day Foreman Frank
Scott gave Browning a written warning, the General
Counsels Exhibit 4 for almost running over Bennett
with the forklift that when Browning asked if he had to
sign the warning, Scott told him that if he did not sign it
he would be terminated that he was not aware of
coming close to hitting Bennett with the forklift he did
not know that Bennett was around and he did not see
Bennett anywhere around him at the time, that he had
14 Other of Respondents employees testified that transfers are a fre
quent occurrence namely McGhee and Marion employee Larry Hall
AMERICAN FURNITURE CO
received prior warnings or complaints about how he
drove the forklift and he had been told two or three
times to slow down, that the insurance inspector told
him to slow down in the fall of 1986, and that the writ
ten warning did not contain the following when he
signed it on January 9 Employee had been cited in
three safety inspections for reckless driving of tow motor
& had also been counseled by the insurance inspector
Final Warning Bennett testified that he talked to
Browning 8 to 10 times about operating the forklift reck
lessly, that Browning nearly hit him with the forklift
early in January 1987, and that he reported the incident
to Scott On brief, the General Counsel points out that
the thrust of Browning's testimony as to the alleged Jan
uary 9 incident is that he did not know anything about
almost hitting Bennett when it supposedly happened and
he said so when he was given the warning On brief, Re
spondent contends that Browning had a history of dnv
ing the forklift too fast and that his driving should not be
immune from criticism simply because he attended a
union meeting The General Counsel makes a prima facie
showing in that there was union activity by Browning,
knowledge by Respondent along with antiunion animus
Respondent has not met its burden of coming forward
with evidence that it would have taken the action not
withstanding Browning s union activity Browning had a
history of operating the forklift improperly He testified
that when he was first told of a complaint regarding
driving too fast on January 9 that he said alright As
noted, infra, it appears that Respondent on brief, places
Bennett's credibility into question regarding his alleged
April 25 warning to McGhee According to Bennett
Mumpower was standing with him when Bennett had to
jump out of the way of Browning's forklift to avoid
being hit Respondent called Mumpower as a witness but
he did not corroborate Bennett regarding this matter
Bennett is no shrinking violet If he had to jump out of
the way in order to avoid being hit he would have said
something to Browning on the spot He did not I do not
believe that Bennett is a credible witness in light of his
testimony regarding the above described McGhee matter
and his testimony regarding Browning s termination, as
treated infra Consequently Respondent has not come
forward with evidence to overcome the General Coun
sel s prima facie case case Respondent acted unlawfully
in issuing this warning to Browning
With respect to the change of the payday, Frederick
Schuermann, Respondents president and chief executive
officer, testified that when he first came to the Company
years ago the Company paid on Friday, and it paid
every 2 weeks that the Company went from a 2 week
payroll to a weekly payroll in 1981, that in a very short
time it became clear that the Company could not process
a weekly payroll and have it done by Friday and so the
payday was changed to Monday that Respondent has
one centralized payroll department in Martinsville Vir
ginia, that in 1983 the Company began to change its
computerized payroll system in Martinsville and the
change was completed in April 1986, that all the payroll
for all the plants is run simultaneously, that in the fall of
1986 during executive meetings it was suggested that the
payday be changed to Friday that the Company's data
415
processing and payroll departments suggested that the
change be delayed to the beginning of the year because
of vacations , etc, taken during December , and that the
change was implemented at all of Respondent 's plants on
the same day in January 1987 15 The General Counsel,
on brief, contends that even if such changes were con
templated in 1986 Respondent has totally failed to ac
count for the timing of the actual events, that the evi
dence suggests that the final decision or at least the all
important timing rested with the plant managers, and
that it can hardly be a coincidence that the changes re
acted neatly to the union campaign Citing Churchill's
Supermarket Inc, 285 NLRB 138 (1987), Craft Maid
Kitchens, 284 NLRB 1042 (1987), and Baton Rouge Hospi-
tal, 283 NLRB 192 (1987 ), Respondent argues, on brief,
that an employer has a right to implement changes mid
campaign when they were made before the advent of the
union campaign Also, Respondent contends that if it had
implemented the change at all plants other than
Chilhowie and Marion , the General Counsel would have
alleged discrimination Contrary to the General Coun
sel's assertion, the timing in the change of the payday
was not left up to individual plant managers The change
was made at all plants on the same day Callen testified
that he was not sure Two other of Respondents wit
nesses, Schuermann and Kilby , were sure Moreover, as
indicated above , the payroll system is centralized and
covers all of Respondents plants, including the Marion
plant On the other hand , the timing of the change re
garding what time of day the employees received their
paychecks was left to the discretion of individual plant
managers , except that such change was not to take place
until the change in the payday was implemented Conse
quently the timing of this change did not fully rest with
the plant managers Such change if it did occur was not
to take place until early January Respondent has provid
ed a plausible explanation for the sequence of events
Paragraphs 28 and 29 of the amended complaint will be
dismissed
Paragraph 10 of the amended complaint alleges that on
or about January 12 Respondent , acting through Rouse
and Barbara Miller, maintained and enforced the afore
mentioned no solicitation rule selectively and disparately
by more strictly enforcing it at the advent of the union
campaign Paragraph 11 alleges that since on or about
January 12 Respondent has maintained the following
rule Employees are prohibited from talking during
work about matters that are not job related Paragraph
26 alleges that on or about January 12 Respondent un
lawfully issued a written warning to Parks On January
15 Par 29 of the amended complaint alleges that on or about February
20 Respondent improved the terms and conditions of employment of em
ployees at the Chilhowie plant by changing the paytime from the end of
the shift to 2 p in Schuermann testified that during the executive meet
rags in late 1986 he suggested that when the plants began to receive the
paychecks for a Friday payday that the checks be handed out in the fac
tory before the end of the shift and not at the timeclock at the end of the
shift Schuermann explained that supervisors could take the opportunity
to express appreuation and wish the employee a good weekend Barbara
Miller and Kilby testified that the change in the time the paychecks were
distributed occurred at the same time that the change in the payday oc
curred at the Chilhowie plant
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Parks received a warning notice, which she refused to
sign (G C Exh 12) The warning lists the dates of the
violations as January 7 through 9 and it reads, as here
pertinent, Employee was told that she violated the
Company policy on solicitation Interrupted work for
non job related reasons Employee was also warned for
unsatisfactory job performance by being absent from her
work area without permission Parks testified that she
received this warning in Barbara Miller s office with her,
Rouse, and Davidson present, that Rouse read the warn
ing to her, that Rouse then said that her counts were in
accurate, that counting was something she did on her
regular job and she had been transferred off her regular
job since January 8, that she denied the assertions in the
warning notice and asked what she was soliciting, and
that Rouse did not tell her Barbara Miller testified that
during this meeting Rouse explained to Parks what the
rule was, and that the warning was for soliciting during
working time Three of the General Counsels witnesses,
James Goodman, Janie Gillespie, and Carol Armstrong,
testified about employees and at least one assistant fore
man selling products in the plant None, however, testi
feed unequivocally that this was done during working
time Armstrong testified that specified products appar
ently were sold by an employee in the finishing room in
the presence of Assistant Foreman Carl Haynes Arm
strong did not testify exactly when during the day this
occurred Accordingly, the possibility exists that the
transaction occurred at other than working time On
brief the General Counsel contends that the timing of
this warning provides the most compelling evidence that
an unlawful discriminatory motive was at work and that
under the guise of enforcing a supposedly valid no solici
tation rule Respondent harassed a known union support
er Respondent on brief, contends that none of the wit
nesses testified that solicitations were allowed during
working time , that accordingly there is no evidence of
disparate treatment by allowing nonunion solicitation
during working time and that there is no evidence that
any rule prohibiting employees from talking during work
about matters that are not job related was ever imple
mented in January 1987 Taking the allegation in para
graph 26 first, the General Counsel has demonstrated
that Parks engaged in union activity that Respondent
was aware of her union activity, and that there was a
union animus on the part of Respondent the General
Counsel has made a prima facie case On the other hand
the only testimony Respondent elicited regarding the as
sertion that Parks violated its no solicitation rule on each
of the 3 days following her attendance at the first union
meeting held for Respondents employees was the testa
mony of Barbara Miller that the warning was for solicit
mg during working time During the meeting in Miller s
office Parks denied that she had violated the rule and
asked for the specifics Conclusionary statements by Bar
bara Miller are not enough to overcome the General
Counsels prima facie showing i 6 Specifics were not pro
16 Parks prior warnings do not demonstrate a business justification on
January 12
vided during the meeting in Miller s office and they have
not been provided on this record Consequently, one is
left to conclude that Parks received this warning solely
because of her union activity, which conduct on the part
of Respondent is a violation of the Act As pointed out
by Respondents employees, Dorothy Heath and Bertha
Lee Simons, whose testimony is treated infra, Respond
ent allowed antiunion solicitation/distribution during
worktime The General Counsel has demonstrated that
Respondent violated the Act by selectively and dispar
ately enforcing its no solicitation/distribution rule There
is no evidence on this record that on January 12 Re
spondent implemented a rule prohibiting employees from
talking during worktime about matters that are not job
related Consequently, this allegation will be dismissed
On January 13 Parks returned to her prior job
Paragraph 26 of the amended complaint alleges that on
January 14 Respondent unlawfully issued a written
warning to Browning The employee warning notice,
General Counsels Exhibit 5, reads clogged up hog after
several verbal warnings The warning, which is the 1st
NOTICE, is signed by Rouse and Scott Browning re
fused to sign it The hog is actually a grinding mecha
nism used to pulverize wood scraps so that they can be
blown into a furnace and burned Conveyor belts are uti
lized to get the wood to the hog The conveyor belt
utilized by Browning is also fed by another belt at a
point beyond where Browning loads scrap onto the belt
The belt utilized by Browning travels some distance up
an incline to a 2 foot square opening into the vertical
chute above the hog The 10 foot high vertical chute
measures 5 by 5 feet at the top and this is reduced to
about 3 by 3 feet at the bottom where the wood goes
into the grinder Wood that is longer than 2 feet must be
placed on the belt so that it can clear the opening But
even though care is exercised in placing the wood on the
conveyor the wood can move in transit to the hog
especially in light of the fact that scraps from another
conveyor belt drop onto the conveyor belt Browning
utilized Wood jams at the opening and in the chute even
when Browning is not involved Regarding this notice,
Browning testified that on January 14 he dumped a load
of scrap wood on the conveyor and went back to his de
partment that Bennett came back to Browning s depart
ment and told Browning that the hog was clogged and
he should go and unclog it, that later that day Rouse in
the presence of Scott told Browning that they were
having a lot of trouble with the hog and he was going
to have to sign a warning for stopping it up that he told
Rouse that he did not do it and he refused to sign the
warning, that he had never received a written warning
before about clogging the hog , that he had received
four or five verbal warnings about stopping up the
hog that if he is dumping strips it does not matter
how fast or how slow he dumps them because they hang
up at the opening or in the chute and that his last verbal
warning was in December 1986 The General Counsel,
on brief contends that the record shows beyond dispute
that the hog or the conveyor leading to it became
clogged up to 100 times per year and by no means was
necessarily due to Browning s fault and that the likeliest
AMERICAN FURNITURE CO 417
reason for the January 14 warning was to set the stage
for Browning s precipitous termination on January 30
On brief, Respondent argues that Browning received an
identical written warning on December 9, 1986, 1 month
before any alleged involvement with the Union (R Exh
13 0), and that here there is an admitted history of simi
lar or identical job misconduct occurring before the
advent of union activity , but only after is similar disci
pline thought to be for discriminatory reasons In effect,
Browning testified that Respondent's Exhibit 13 G is a
fabrication in that the document purports to be signed by
him and he denies that he signed it In other words, it is
his position that the employee signature on the warning
notice is a forgery I agree As noted above, General
Counsels Exhibit 5 which was also received as Re
spondent s Exhibit 13 J, specifies clogged up hog after
several verbal warnings ' Emphasis is added Rouse and
Scott both signed, General Counsel's Exhibit 5, the Janu
ary 14 employee warning notice Both of these supervi
sors also signed Respondent's Exhibit 13 G, which asser
tedly is an employee warning notice for overloading
hog issued December 9, 1986, and which assertedly was
signed by Browning If in fact Browning was given the
above described December 9, 1986 notice by Rouse and
Scott, why would these two supervisors sign a notice 1
month later which indicated only that after several
verbal warnings" with no reference to the alleged writ
ten warning of December 9, 1986 In my opinion the De
cember 9, 1986 notice, along with the September 9, 1986
notice (R Exh 13 D), which Browning also denies sign
ing, were fabricated most likely at the same time (corn
pare the similarity of the handwriting and the writing in
struments utilized in the same places on both and their
dissimilarity from other warning notices given to Brown
ing) which would have been after the January 14 warn
ing notice to Browning 17 The General Counsel has
made a prima facie case in that he has shown that
Browning engaged in union activity on January 6, Re
spondent was aware of his union activity, and there was
union animus on the part of Respondent Contrary to Re
spondent s contention on brief, before January 14,
Browning had never received a written warning for
clogging the hog The hog clogged when Browning
or other people used it In the past a supervisor would
say something to Browning if it was concluded that
Browning was at fault Now Respondent found it neces
sary to build a written record, even fabricating so as to
be able to say that there was a written record even
before the commencement of the union activity In my
opinion, the motivating factor for this, the January 14
warning was Browning s union activity Consequently
Respondent acted unlawfully in giving Browning this
warning Parks was transferred to the cabinet room on
January 14
17 Interestingly the note at the bottom of the January 9 notice for
Reckless driving on forklift R Exh 13 1 which note Browning as in
dicated above testified was not on the notice when he received it does
not refer to R Exh 13 D the September 9 1986 warning for Driving
forklift too fast The safety inspector complained but rather R Exh 13
I indicates that Employee had been cited in 3 safety inspections for
reckless driving of tow motor
Kilby and Barbara Miller testified that lists of what su
pervisors could and could not do during an organization
al drive were passed out to managers in mid January (R
Exh 2 )
Paragraph 6 of the amended complaint alleges that on
January 17 Respondent, acting through Judy Rhea at the
Hull Building , Marion , kept under surveillance a meeting
during which employees were engaged in union activi
ties Regarding this allegation, McGhee testified that he
attended a union meeting at the Hull Building in Marion
on January 17 at 7 p in, that he rode to the meeting with
Romans and Hawthorne in the former s pickup truck
that on the way to the meeting they pulled into the park
ing lot of a pizza establishment next to the Hull Building
that they saw Rhea, a secretary at the Chilhowie plant,
sitting in a car with another female that he did not rec
ognize the other individual that he, Romans and Haw
thorne left the pizza parlor parking lot, circled the local
union hall, and returned to the pizza parlor parking lot,
that when Rhea and the other female both of whom
were wearing big hats, saw them they, Rhea and the
other female, put on sunglasses , that he and the other
two men pulled up behind the car Rhea was driving and
they took down the license plate number, that he and the
other two men then went to the Hull Building that as
they exited the pizza parlor parking lot to go to the Hull
Building he saw Callen in the passenger seat of a car
driving by on Main Street, that from where the car oc
cupied by Rhea was parked he doubted the occupants
could see who was in the cars going up the driveway on
the west side of the Hull Building which driveway was
about 200 feet away, but they could `get a good make
on the vehicle , that he did not know why Romans
pulled into the pizza parlor parking lot and that the
driveway on the the east side of the Hull Building was
about 75 feet from the car that Rhea was in Hawthorne
testified that he McGhee, and Romans rode to the meet
ing together that as they passed the pizza parlor
McGhee said he thought he saw two individuals from
American Furniture s Chilhowie plant that they drove
around the Hull Building and then entered the pizza
parlor parking lot that McGhee then named the two fe
males in the involved car and said that they were secre
taries from the American Furniture plant in Chilhowie,
that the two females had floppy hats on that Romans
gave him the license plate number and he wrote it down
that he and the other two men left the pizza parlor park
ing lot and went to the Hull Building, that as they were
exiting the pizza parlor parking lot he saw a person who,
based on Hawthorne's prior working at American Furni
ture s Marion plant, he believes was Callen drive by in
the passenger side of a car, that he was absolutely certain
that McGhee identified the two people by name that he
was not sure that it was Callen in the car which passed
the pizza parlor parking lot that night, and that Romans
did not come into the meeting but rather parked his
truck underneath the stairwell at the entrance to the
west side of the building Romans testified that as they
passed the pizza parlor parking lot that night McGhee
said he thought he recognized someone sitting in a car
that they drove around the Hull Building and then
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pulled into the pizza parlor parking lot and stopped
behind the car in question, that the two females in the
car had hats with earmuffs and they put on sunglasses,
that he read the license plate number to Hawthorne who
took it down, that McGhee said that he believed that
one was Barbara somebody, that he did not recall wheth
er McGhee gave the name of the other female that he
does not recall if he and the other two men left the pizza
parlor parking lot and returned later, that he parked his
truck on the east side of the Hull Building and remained
outside the Hull Building and watched the car that
stayed there for about 1 hour, and that the occupants of
the car did not go into the pizza parlor during that 1
hour Rhea testified that the involved car belongs to her
mother in law, that she and her daughter drive the car
that she did buy pizza at the involved facility that the
longest she sat in a car at that pizza establishment was 15
to 20 minutes, that she never sat in the car in question
with another person in the involved parking lot for an
extended period of time, and that she does not remember
whether she ever took that car to the involved pizza
parlor
The General Counsel, on brief, contends that Rhea s
position with Respondent was such as to constitute her
an agent of Respondent, and that Rhea admitted that the
car in question belonged to her mother in law and that
she sometimes drove it Respondent argues on brief that
the testimony of McGhee, Hawthorne and Romans re
garding this allegation differs dramatically that while
Rhea might have been at the involved pizza parlor on
January 17 under no circumstances was it for company
directed or tolerated surveillance purposes and that
Rhea s duties as secretary to the plant manager do not
give her a charter to do what the General Counsel con
tends as Rhea has no managerial or supervisory authority
and no specific authority to surveil union meetings (R
Br at 30) There are numerous unexplained factual dis
crepancies in the above described testimony of the Gen
eral Counsels witnesses Although this does not warrant
discrediting these witnesses, considered as a whole, the
General Counsels evidence is not reliable enough to find
that Rhea was present for the purpose alleged near the
Hull Building on the evening of January 17 Consequent
ly, there is no need to go into the question of whether
she may or may not have been acting as agent of Re
spondent This allegation of the amended complaint will
be dismissed 18
Paragraph 15(b) of the amended complaint alleges that
on or about January 19 and 20 at the cabinet room de
partment in the Chilhowie plant Respondent acting
through Kilby threatened employees with unspecified
reprisals in order to discourage their participation in
union activities James Stewart an employee at Respond
ent s Chilhowie plant, testified that he attended the
above described January 17 union meeting that the fol
lowing Monday, January 19 Kilby came up to him in
the plant and said You re going to get in some trouble
just be careful and watch yourself , that the next
day January 20, when Kilby passed his work station he
18 Parks attended this union meeting eceived a union pen and she
later wore it at work on a string around her neck
asked Kilby what he meant the day before and that
Kilby then said Be careful and watch yourself, you
know what I mean and I know what I mean but you
know I can t say nothing , that his work partner, Jackie
Haven, would have been close enough to overhear either
the above described Monday or Tuesday conversation
that he first met Kilby when he came to work for Re
spondent that before he came to work at Respondent s
Chilhowie plant he did not hang around with any of
Kilby s relatives that Kilby took an interest in him after
he came to work for Respondent, that he told Kilby that
he and his wife were having troubles, that Kilby never
counseled him about his personal affairs that he could
not recall Kilby ever expressing any concern to him
about the people that he socialized with, and that Kilby
could have been talking about an entirely different sub
sect and he read into it union because he attended a
union meeting on January 17 Kilby testified that about
the time in question he told Stewart in the plant that I
felt like he was getting in trouble, and if he needed any
help let me know that Stewart and his wife separated
and Kilby was told by someone that Stewart got into a
fight at a party the weekend before, that Stewart had a
black eye that Monday, that he did not know that Stew
art was involved with the Union that the next day in the
plant Stewart asked him what he meant the day before,
that he then said, Well you know what I in talking
about keep yourself straight and if I can help you
let me know and that there were several other employ
ees in there and he did not want to engage in conversa
tion about Stewart s personal life in front of them The
General Counsel on brief contends that Kilby s admit
ted statements were lightly veiled warnings and his ex
planation was thoroughly implausible Respondent on
brief argues that for Kilby to be found to have violated
the Act by issuing a threat, he must have had the intent
to do so and here Kilby denied any threat or intent to
threaten Stewart and that in a situation in which the su
pervisor s comments are ambiguous and refer to a subject
other than the Union or union activity it should be con
cluded that they are insufficient to warrant the finding of
a violation Stewart is credited His conclusion that
Kilby was referring to his union activity was warranted
On January 20 Kilby said You know what I mean and
I know what I mean but you know I can t say nothing
If Kilby was referring to Stewart s social life Kilby
might not have wanted to discuss this subject in front of
other employees but that would have been a matter of
choice However, Kilby said I cant say nothing
What Kilby was referring to was the aforementioned list
of WHAT YOU CAN T DO DURING AN ORGANI
ZATIONAL DRIVE," (R Exh 2), which as noted
above, was distributed to Respondents supervisors at the
Chilhowie plant in mid January Item 7 on the list reads
Conduct yourself in a way which would indicate to the
employees that you are watching them to determine
whether or not they are participating in union activities
Kilby s statements violated the Act
Paragraph 10 of the amended complaint alleges that on
January 21 Respondent acting through Rouse and Bar
bara Miller maintained and enforced Respondents no
AMERICAN FURNITURE CO
solicitation rule selectively and disparately by more
strictly enforcing it at the advent of the union campaign
Paragraph 12 alleges that on January 21 Respondent,
acting through Robert Primm at the Chilhowie plant,
more strictly enforced work rules concerning employees
leaving their work area following the advent of the
union campaign Paragraph 26 alleges that on January 21
Respondent unlawfully issued a written warning to Janie
Gillespie On January 21 Gillespie received an employee
warning notice, which indicated that the date of the al
leged violation was Monday January 19 (G C Exh 8 )
The warning notice is signed by Rouse and Barbara
Miller with a notation that the employee refused to sign
it The warning explains that assertedly Gillespie violated
company policy or more specifically `Employee was
told that she had violated the Company policy on solici
tation, Interrupting work for non ,job related reasons
Any further violation of company rules which are not
consistent to company policy will result in disciplinary
action up to & including termination' Gillespie gave the
following testimony regarding what was said when she
received the warning from Rouse and Barbara Miller
A Mr Rouse said that they had wrote me up for
soliciting on the job and that he would read it to
me, so he read what this paper here has And, I
asked him something what did he mean soliciting
and he said I was talking when it wasn t job related
and that someone had come to him and told him
that I was talking not job related And I said well,
what do you mean and he said well, I can t say
And I said-he asked me to sign the paper and I
said if you 11 go get the person that told you and
confront me with what they said, and if I said it,
yes 111 sign the paper And, Barbara looked at me
and she said well, you don t have to sign the paper
Q Was there further conversation among those
of you in that room after that9
A No that was all that was said Barbara never
did say anything
Q Had you in fact, done anything that might ex
plain why they claimed that you had violated any
rule
A Nothing out of the ordinary We always
talked you know, about our families or anything
like that, you know
Q Was there anything they said in that office
that pinpointed just what it was that you were sup
posed to have-or when it was that you were sup
posed to have got out of line
A No sir Whenever I asked Mr Rouse to go
get the person, he said I can t do that
Rouse did not testify about this matter The only witness
called by Respondent who testified about this matter was
Barbara Miller who testified that she spoke with Gilles
pie in January 1987 regarding her solicitation of another
employee that Rouse was there that Gillespie was told
that she could not solicit during working time but she
could solicit at breaktime, lunchtime, and before and
after work that she never told Gillespie that she could
419
not discuss the Union or any other nonwork related
matter while she was working, that when Gillespie asked
Rouse what he meant by soliciting Rouse replied that
soliciting was trying to get someone to join an organs
zation or to buy something or solicit them to do some
thing , and that she did not remember Gillespie asking
what she had done that violated the rule in question The
General Counsel, on brief, contends that Gillespie was
one of only three individuals whom Debbie Ball named
under questioning by Supervisor Robert Primm, which
matter will be treated more fully infra that there is testa
mony that when Gillespie attended a union meeting at
the Hull Building on January 29 she was already known
for her union sympathies, and that fact may reasonably
be inferred to figure in the issuance of the warning on
January 21, that Miller's testimony did not detail what
act or acts of Gillespie were supposed to have violated
Respondents no solicitation rule, that, therefore, Gilles
pie's account that Rouse stonewalled her demand for
particulars as to what she was supposed to have done is
uncontested, and that the only reasonable conclusion is
that Respondent was cracking down in the aftermath of
the meeting at the Hull Building of January 17 and that
the lightning struck this particular employee either be
cause of Gillespie s reputation or her close relationship
with (and physical resemblance to her sister) Susan Arm
strong, who attended the January 17 union meeting Re
spondent, on brief, argues that crucial to this issue is the
fact that Gillespie did not deny that she solicited another
employee during working time, but sought to justify it
because others had done the same for nonunion reasons
and had not been disciplined and that the testimony of
the witnesses to alleged disparate treatment however do
not support the General Counsels theory As indicated
above regarding January 12 which applies equally to
January 21, there is sufficient evidence in this record to
conclude that Respondent selectively and disparately en
forced its no solicitation rule The evidence, considered
as a whole demonstrates that even before Gillespie at
tended her first union meeting she engaged in union ac
tivity in the plant and Respondent was aware of it The
warning states that Gillespie interrupted work for a
nonjob related reason Miller testified that Gillespie was
not told that she could not discuss the Union or any
other nonwork related matter while she was working
Apparently it is Respondents position that an employee
can talk about nonwork related matters during worktime
so long as it does not interrupt work Respondent has
not demonstrated that Gillespie did in fact interrupt
work Without such a showing, there is no lawful busi
ness justification on this record for the warning notice
Consequently one is left with but one reason for the
warning notice and that reason Gillespie s union activi
ty, makes the warning an unlawful one in violation of
the Act
Armstrong testified that she attended her first union
meeting on January 17 at the Hull Building in Marion
that on or about January 21 she worked in the cabinet
room at Respondents Chilhowie plant that she and em
ployee Fuzzy Ray, left their work stations 5 minutes
before the lunch buzzer sounded, that she went to the
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
finishing room to get her lunch out of her locker, that
her foreman, Robert Primm, told her not to leave the
cabinet room early to go to the finishing room, that she
did not know that there is a rule at American Furniture
that you are to stay on your job until the buzzer
sounds, i 9 that employee Shortie Ollinger also left before
the buzzer sounded that she asked Ollinger if Primm
said anything to him that day about leaving the work
area before the buzzer sounded, and Ollinger said Primm
had not spoken to him about this, that Primm is not
Rays foreman that she has worked for Primm for 4
years, and that Primm never told her before January 21
and she never overheard Primm tell another employee
that it was his policy that you remain in the department
until the whistle blows Three employees20 who worked
under Primm collectively testified that Primm told em
ployees for years that they should stay in the work area
until the whistle sounds, that there was no change in this
policy, and that while some employees do leave the de
partment before the whistle sounds they do not leave
with Primm s knowledge The General Counsel on brief,
contends that after Pnmm attended a union meeting at
the Hull Building she cracked down on Armstrong for
her trip to the locker room before the bell sounded, and
that the testimony of Respondents witnesses fail to show
that Primm ran a tight ship Respondent on brief,
argues that the credible evidence is that employees have
been told to remain on their jobs until the whistle blew
for eons because that was the rule The General Coun
sel has not demonstrated that Respondent, through
Primm more strictly enforced work rules concerning
employees leaving their work areas following the advent
of the union campaign The evidence of record demon
strates that this rule has been in effect for years While
employees may not have always followed the rule
Primm constantly reiterated the rule and it was not dem
onstrated that Primm knowingly allowed any employee
to violate this rule Consequently this allegation will be
dismissed
Paragraphs 15(c) (d) (e), and (f) of the amended com
plaint collectively alleges that Kilby on January 23 at the
Chilhowie plant cafeteria during speeches to assembled
employees threatened employees (1) by stating that he
would use illegal means to curb their union support (2)
that work would be transferred away from their plant
should they select the Union as their collective bargain
ing representative and (3) that the plant would close
should they select the Union, and by telling employees
that he had no intention of accepting it, informed em
ployees that it would be futile for them to select the
Union as their bargaining representative Paragraph 16(c)
alleges that on January 23 in the packing department at
the Marion plant, Respondent through Callen, by telling
employees that he had no intention of accepting it in
formed employees that it would be futile for them to
select the Union Paragraph 17(b) alleges that around
19 Another of the General Counsel s witnesses McGhee testified on
cross examination that one of the rules in the employee handbook mdi
cates that the employee is supposed to stay in the work area until the
whistle blows
20 The three employees are Linda Stillwell Mary Cox and Harold
Trent
mid January Foreman Raymond Williams threatened em
ployees by stating that the Union could cost a lot of
people their jobs Respondent held meetings with its em
ployees at Chilhowie and Marion on January 23
Chilhowie employee McGhee testified that he attended a
meeting at 10 30 a in on January 23, the second of two
meetings, and employees from the maintenance depart
ment the lumber yard, the rough mill machine room
and sanding room attended that there were about 175
employees there in addition to Plant Manager Kilby
who presided, and supervisors who stood along the walls
of the cafeteria, that Kilby had some papers and he gave
a speech, and that it appeared that Kilby read some of
the speech and then he talked to the employees
McGhee testified further regarding Kilby s statements at
the meeting
He [Kilby] was very disappointed with the em
ployees for talking Union Said he did not want it
and he wouldn t accept it and he went onto [sic]
say about bringing in the third party-the Carpen
ters Union-would be the biggest disater [sic] for
the Company He said that-at that point he said
that we were on a trial period for Ladd-a Compa
ny that we had to make it look good for them And
he said the Union people were no do gooders They
were-all they wanted was money out of your
pocket and to take food off your table
He read some of the speech out Well basically
the parts I've just went over and I can remember
He quit reading because he wasn t looking down at
the paper He was looking up and talking to the
people He said in all honesty before Ladd would
let a Union come in they would sent [sic] what
work we had to Martinsville-that the plants they
had shut down up there-or they would keep it
over in North Carolina He also stated that look at
all the work that s being shipped overseas That we
should be thankful that we ve got a job
Mr Kilby said that he dealt with his friends better
than he did with his enemies He said those pushing
the Union would be disposed of honestly or dishon
estly
McGhee said that there were no questions and answers
at the end of the speech, that the speech lasted about 15
minutes and Kilby stopped reading and began speaking
extemporaneously about 8 minutes into the speech, that
thereafter Kilby read some more of the speech before he
closed and that Kilby spoke about a strike that occurred
at Ladd Furniture in Waynesville, North Carolina and
he indicated that 86 people lost their jobs Stewart testi
fled that he attended an employee meeting at 10 am at
the Chilhowie plant on January 23, that Kilby read some
of the speech and that he spoke off the top of his
head , that Kilby said regarding those who were push
ing the union that he would fight us to the fullest of
the law, and he said he d get us all honest or dishonest"
that he was in the second group to hear the speech that
there were about 50 people in the audience that Parks
AMERICAN FURNITURE CO
was in his group, that the speech lasted 30 minutes, that
Kilby read about 25 percent of the speech, that Kilby
would look down and then up as he gave the speech,
that the fight to the fullest extent of the law portion of
the speech was not read, that when Kilby looked up
Stewart assumed that he was speaking off the top of his
head , and that in an affidavit he gave to the Board he
indicated that he did not think Kilby read the speech be
cause when he left the room he did not have anything in
his hands James Goodman, who was an employee at Re
spondent s Chilhowie plant, testified that he attended an
employee meeting at 10 am on January 23, that Kilby
read some of the speech and then he got upset and start
ed talking off the top of his head , that Kilby said 111
be damned if I let the union in the plant" that he did not
pay attention to Kilby s speech after that, that when he
returned to his department he told Foreman Williams
that having a union would be the best thing that ever
happened to the plant, and Williams just shook his head
and stepped back down off the line and went on ' that
he did not include in an affidavit he gave to the Board
that Kilby told the employees he would be damned if he
would let the Union in at the plant and that subsequent
ly he remembered this [f]or the simple reason I would
like to see that plant pay out their butt for the way they
done me Browning testified that he attended the same
meeting as McGhee and Parks on January 23, that Kilby
appeared to read most of what he said and he appeared
to ad lib some, that Kilby said that some people were
trying to organize the Union, that he was going to do
everything in his power to fight it, and that the Union
would not be good for the Company or the employees
and he was not about to let it in, that he was mistaken in
his testimony about Parks attending the same meeting
and he made the mistake because she normally worked
in his department but she was working in a different de
partment at that time, that the affidavit he gave to the
Board states that Kilby looked to be reading what he
said and that Kilby said that he would do everything in
his power to legally fight the Union Alexander Mutter
an employee at Respondents Chilhowie plant, testified
that he attended an employee meeting on January 23 at
10 30 a in that McGhee attended the same meeting and
that Kilby both read and spoke extemporaneously
Well he [Kilby] said he wouldn t accept the
Union They was people trying to push the union
into the company and he wouldn t accept it and
he d dispose of anyone honest or dishonest if they
[sic] was a union to come into the plant the plant
there He threatened to close the plant down send
out work to Martinsville North Carolina if the
union got in He said something about some union
cards if you signed a union card there was no way
you could get it back And that s about all I can re
member in the speech
Mutter testified that Ball Stewart, and Goodman were
not at this meeting because they were in different depart
ments that Browning worked in the machine room and
machine room employees attended the same meeting that
he attended but he did not recall whether Browning at
tended the meeting that an affidavit he gave to the
421
Board reads He said he would dispose of anybody that
had anything to do with the union legal or illegal He
was reading that part , and that the affidavit should have
read honest or dishonest Gillespie testified that she at
tended an employee meeting at the Chilhowie plant at 10
a in on January 23 that other employees included Arm
strong Goodman, Stillwell, and everybody in the finish
ing room attendant, and that when Kilby gave his speech
he read some and at other times she could not tell if he
was reading or talking
He [Kilby] said that they had knowledge that a
Carpenters Union was trying to come in and that
we did not need a union , that we had him that we
could come and talk our problems over with That
if the union come in, it would be a disastor [sic]
And this is not in order, its just as I can recall
And he said that they would not accept a Carpen
ters union and that was a fact And he quoted that
was fact again And, that he dealt better with his
friends than he did with his enemies And that the
people pushing the union didn t pay the other-
didn t pay the salary And that he would dispose
honestly or dishonestly of anyone pushing the
union And we could take notes if we wanted to
Gillespie said that she did not recall if Kilby was reading
when he said he would dispose of anybody honestly or
dishonestly, that when she gave the Board an affidavit in
February 1987 she indicated that she thought Kilby was
reading when he said honestly or dishonestly , that she
saw Parks taking notes throughout the speech, that Kilby
was looking at Parks when he said that anybody can
take notes, that Kilby said something about a strike but
she could not recall what he said and that she could not
recall anything in Kilby s speech dealing with plant clo
sure Heath testified that she attended an employee meet
ing at Respondent's Chilhowie plant on January 23 and
that she recalls that Kilby said something about moving
the work somewhere else Parks testified that she attend
ed Kilby s 10 05 a in speech
Well, he [Kilby] started by saying that he was
very disappointed that certain employees were talk
mg Union He said I've made mistakes, the Compa
ny s made mistakes and we ve made mistakes but
we ve treed to make this the best Plant And the
third party-the Carpenters/Joiners Union has dis
rupted-and about that time he saw me taking notes
and he say, go ahead and take your notes [G C
Exh 13 ] Take them home and read them So, he
got real red in the face Then he says-wait a
minute-let me get my thought together
Said he did not want and he will not accept the
Carpenters Union and he would do anything hon
estly or dishonestly to keep it out He said that it
was a fact that he would dispose of anyone pushing
the Union or having anything to do with the Union
And said the Union were not do gooders They
take money out of your pockets-away from your
family He told them not to sign a Union card or
attend the meetings I can t remember all of it
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
He said don t sign a card and do not attend the
meetings He said bringing the Union in would be
the biggest disaster
Parks said that Kilby read portions of his speech but she
could not say for sure what portions he read because she
was taking notes that she did not think that Kilby said
anything about the plant closing because of the Union or
that work would be sent to Martinsville or overseas and
that she heard these statements at another meeting, the
statements were made by a leadperson who has no super
visory authority, and Kilby was not there Regarding
Kilby s 10 am, January 23 speech, Armstrong testified
Well, Mr Kilby came in and we were already
seated and he came in and he had a piece of paper
in his hand and he just stated that he was very dis
appointed that some employees were talking union
He said that he thought to bung the Union into the
Company would be a disaster He said, go ahead
take your notes, take them home with you, read
them
He said that he would dispose of, honestly or dis
honestly, anyone having anything to do with or
pushing the Union And he said that he really ap
preciated and he really meant that he appreciated
the people that were not participating in this matter
He said the people that were pushing the Union
didn t pay your wages If you had a problem, come
to him That s what he was there for And that s
about all I can remember
Armstrong said that she could not tell if Kilby read any
of the speech that she did not recall Kilby saying any
thing about a plant closing or work being taken away
from the Chtlhowte plant and that she did not hear
Kilby say that he was going to discharge people legally
or illegally but rather that he said that he would dispose
of them honestly or dishonestly Kilby testified that he
gave a prepared speech (R Exh 40) to the employees in
the Childhowie plant on January 23 (twice) and on Janu
ary 26 that he did not speak extemporaneously but
rather read the speech with the notes he added'21 that he
did not depart from the text that he did not use the
words use illegal means or words like that that he did
not say that work would be transferred away from the
plant if the Union came in, and that he did not say that if
the Union succeeded that the plant would close Barbara
Miller testified that she attended both of Kilby s January
23 speeches to the employees, that he read the speech
briefly glancing up at times, that she also attended Cal
21 The notes are as follows I d like to talk to you about something
serious that could affect all of us You missed a talk on Friday and
Afternoon on p 1 Tru for through You Not brag but fact
and Telling you on p 2 in the form of dues membership fees fines
etc and You think they re here to be your friend for nothing on p 3
One of the biggest furniture manufacturers in the U S A Period
People and good on p 4 and With false promises and Look at
both sides of all situations ask questions demand honest answers look at
the people who are trying to organize and ask yourself if these people
have your best interest at heart If you do this you will find the answer
Thank you on p 6
lens speech that he gave to Respondents Marion em
ployees on January 23, and that Callen read the speech
Production Superintendent Glen Musser testified that he
attended Callen s January 23 speech to employees, and
Callen read the speech Larry Hall and his wife Ginger
both testified that as employees of Respondent in Marion
they attended Callen s January 23 speech, and that
Callen both read the speech and he spoke extemporane
ously Larry Hall testified that Callen said that he would
deal in a legal way with anyone caught dealing with the
Union Simmons, an employee at Respondents Marion
plant, testified that she attended the meeting at the
Marion plant about 3 p in on January 23 that Callen
said that he would do anything to stop the Union from
coming in regardless of what it was and he did of want
anybody signing any cards and if they got a call to just
hang up, that Callen read the entire speech and that
Callen did not say that he would close the plant or trans
fer the work if the Union came in Callen testified that
he gave one speech to the Marion employees on January
23, and that he read the speech (R Exh 39) The typed
speech is the same as the one Kilby gave Like Kilby,
however, Callen made some changes and additions to the
typed speech One reads Also some of you have
been getting phone calls from people who work in other
plants to come to meetings Treat it like an obscene
phone call Hang upl After all it is an obscene
phone call
On beef the General Counsel contends that while Re
spondent insists that at neither plant did the speaker
depart from the written speeches the testimony of a
number of witnesses, particularly to the two speeches at
Chilhowie indicates very significant departures from
such written text, and that both plant managers made it
clear that they did not want the Union and to this Man
ager Kilby added coercive particulars which can hardly
have been lost on his audience Respondent on brief
contends that there is a total lack of continuity in the
General Counsel's witnesses testimony regarding what
Kilby said on January 23 and that the only credible or
plausible evidence is the written draft itself that Kilby s
looking up from the text was in no way extemporaneous
ly speaking that Kilby s and Callen s saying that they
had no intention of accepting it is a statement of their
intent and is perfectly permissible under Section 8(c) of
the Act since they did not state that they would not deal
with the Union were one voted in but rather their inten
tion was to resist the Union s entrance Atlantic Forest
Products, 282 NLRB 855 (1987), that there is not one
word in Kilby's speeches that tells the employees that it
would be a futile act for them to support the Union, and
Kilby and Callen merely pointed out the well known po
tential pitfalls to union representation, Standard Products
Co 281 NLRB 141 (1986) that the allegation that Kilby
said that he would use illegal' means to curb union ac
tivity neither makes sense nor is it supported by the evi
dence, that none of the witnesses testified that Kilby
said, illegal that Kilby said that he would use every
legal means at his disposal to resist the Union which is a
lawful expression that Kilby s indication of what hap
pened at Waynesville, viz, the product was shipped to
AMERICAN FURNITURE CO
other plants in the face of a strike is a permissible ex
pression of free speech under Section 8(c) of the Act and
it is not a prediction of what will happen that only one
of the General Counsels witnesses testified that Kilby
threatened to close the plant if the Union came in, that
witness Mutter was not candid in giving an affidavit to a
Board agent, that Parks testified that she did not think
that Kilby said anything about closing the plant because
if he had she would have included it in her notes and
there is no mention of this in her notes, and that Good
man s affidavit to the Board originally indicated that he
told Kilby and not Williams that a union would be good,
and To suggest that such a comment, whether [it in
volved Kilby or Williams], threatens a loss of jobs is asi
nine ' (R Br at 62 )
Taking the last above described allegation first, there
is no evidence on this record that Williams threatened
employees by stating that the Union could cost a lot of
people their jobs Accordingly, that allegation will be
dismissed The prepared speech that both Kilby and
Callen read states on page 2 thereof, UNION-
COMING IN I HAVE NO INTENTION OF AC
CEPTING IT Allegedly Respondent was informing
employees that it would be futile for them to select the
Union I agree In determining the meaning that these
words conveyed to the audience, involved consideration
must be given to the level of the audience, as they are
not members of sophisticated tribunals law professors,
scholars [or] labor law grammarians ' George
town Dress Corp, 201 NLRB 102 116 (1973) As noted
above, Respondent takes the position that because the
speech does not state that Respondent would not deal
with the Union if it was voted in, the statement meant
only that it was Respondents intention to resist the
Union's entrance But that is not what Respondents two
supervisors said No attempt was made to qualify the Ian
guage used so that if in fact this was Respondents posi
tion at that time it was conveyed to the audience A
number of the employees testified to the plain unquali
fled meaning of the words in question Accordingly,
there is merit to this allegation Respondent violated the
Act when it informed the employees of the futility of
supporting the Union It appears that Kilby did not use
the words illegal means in his speech Rather a
number of the witnesses testified that he said that union
activists would be disposed of honestly or dishonestly
They are credited The speech was really directed at the
union activists The very first paragraph of the speech
sets the tone and direction with LET ME TELL YOU
WHAT I THINK ABOUT PERSONS WHO
ENGAGE IN THAT SORT OF ACTIVITY' When
Kilby got to page 2 of the prepared speech I WILL
FIGHT THOSE PERSONS WHO ARE PUSHING
THE UNION WITH EVERY LEGAL MEANS AT
MY DISPOSAL " he was not satisfied to read just that,
he had to add the note not brag but fact" to the draft
When he gave the speech he still was not satisfied with
what he was reading He took it a step further and told
the union activists that he would dispose of them honest
ly or dishonestly As indicated infra, that is exactly what
he did In putting them on notice that this was his intent,
he threatened employees in violation of the Act There
423
were two meetings with different groups of employees
on January 23 The collective testimony regarding the
threats to transfer work and close the Chilhowie plant
was elicited from two employees who attended the
second and smaller meeting that day Testimony from
Gillespie, Parks, and Armstrong that they could not
recall threats to transfer work or close the plant because
they attended the first speech does not mean that such
threats did not occur during the second speech Both
McGhee and Mutter testified that Kilby threatened to
send their work to Martinsville They are credited Such
a threat violates the Act McGhee testified that Kilby
said that certain of Respondents plants had been shut
down McGhee did not testify, however, that Kilby
threatened to close the Chilhowie plant Only Mutter
testified that such a threat was made This would have
been a very serious threat Yet no one else corroborates
Mutter Perhaps he misunderstood Kilby when he men
tioned that certain other plants had been closed Perhaps
Mutter assumed that when Kilby threatened to transfer
the work he at the same time was threatening to close
the plant McGhee s testimony about the second speech
was pretty explicit In my opinion, if Kilby threatened to
close the plant McGhee would have so testified This a]
legation will be dismissed
Paragraph 16(a) of the amended complaint alleges that
on January 27 in an office at the Marron plant Callen in
terrogated employees and created the impression of sur
veillance of their union activities Paragraph 16(b) alleges
that on January 28 Callen , in an office at the Marion
plant, threatened employees with discharge because of
their activities on behalf of the Union Larry Hall testi
feed that at Respondents Marion plant on January 27, in
the shipping office, Callen, after asking Randy Barber to
step outside
said he wanted to talk to me and ask me some
advice Said he heard one of his old buddies, and he
thought he brought him up better than that had
been talking Union at one of the Union meetings
He said what would you do's I said I d talk to him
about it He said thank you for that advice
Hall said that the next day while he was in Musser s
office Callen came in and said to him I like that advice
that you gave to me and he said I asked somebody s
opinion on it what they would do if they s a
used and he said that they said I d fire the son of a bitch
and his wife both Callen testified that he did ask Hall
how he would fell and being in my posi
tion he found out that someone who he had
trusted and I d brought on carefully through the
years, had felt that they could go against the com
pany and our plant management , with reference to
organizing a union in my plant At that time I was
talking to Mr Hall I did not know that he was an
active participant
Callen testified that he was referring to Johnny Gullion
who assertedly was a friend of Hall's that other employ
ees had reported to him that Gullion had been active in
trying to organize a union in the plant that Hall said the
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
person should be given another chance that the follow
ing day he saw Hall in a superintendent s office and he
told Hall that he had talked to other people and that
Hall had given him good advice, that he did not indicate
to Hall that people would be discharged or terminated
because they had been involved in the Union, that in the
conversation of January 28 no mention was made of Mrs
Hall, that in the conversation of January 28
there was uh the other gentlemen that I
mentioned had a girlfriend in the plant and sev
eral a lot of my employees refer to him [sic] as
his wife away from home And that was the wife
that was referred to Other people had said that we
should get rid of him and his wife, too And I'd
hate to get that gentleman in trouble, but that s the
way it is
Callen further testified that on January 28 he told Hall
that other people told him to get rid of him and his wife
but it was not a reference to Hall or his wife that he
never mentioned Gullion's name in the first or the
second of the above described conversations, that he
hoped that Hall would tell Gullion to forget about the
Union, that he assumed that Hall knew who he was talk
ing about and that Mrs Gullion does not work for Re
spondent As noted above, Mrs Hall does work for Re
spondent in its Marion plant, which is supervised by
Callen On brief, the General Counsel contends that in
the first conversation when Callen asked another em
ployee to step outside there was no reason why Callen
should not have mentioned Gullion by name if in fact
Gullion was being discussed, and that while Callen s ver
sion is stunning in its ingenuity Hall s version, detailing a
threat only slightly veiled, is far more believable Re
spondent on brief, argues that under either version there
was no interrogation that there is no evidence that Hall
was engaged in union activity at the time and therefore
the comments could not have been directed at him that
Callen denies Hall s assertion that Callen said that others
advised to discharge the unnamed individual and his
wife that no one in management had any idea at that
time that Hall was engaged in union activity and that
the impression of surveillance contention is di minimis
Callen unlawfully created the impression of surveil
lance and he unlawfully interrogated Hall Also, con
trary to Respondents contention on brief Callen admit
ted that others advised the discharge of the man and his
wife If Callen was indeed referring to Gullion, he could
have said so To credit Callen's version one would have
to credit his testimony that he assumed Hall would know
who he was talking about during the first conversation
and he would have to assume during the second conver
sation that Hall knew that the individual had a wife
away from home in the plant Callen testified that he
hoped Hall would speak to Gullion Consequently
Callen was attempting to use Hall to convey the threat
to Gullion or he was threatening Hall or both It matters
only that in making the statement to Hall Callen was un
lawfully threatening employees because of their union
activity
Linda Atwell a former employee at Respondent s
Chilhowie plant, testified that the Union held a meeting
at the Hull Building on January 29 and that she and
Debbie Ball, among others, attended Gillespie testified
that she attended this meeting
Paragraph 27 of the amended complaint alleges that on
January 3022 Respondent unlawfully discharged Brown
ing He gave the following testimony regarding what oc
curred that day
Q Mr Browning, what was the last day that you
worked for the plant?
A January 30th 1987
Q And what happened that day?
A I was going about my regular job and I had
picked up a dumpster from the band saw took it
back to the hog to dump it, and I noticed that it
was stopped up again when I got about the load
down it So I went outside to unstop it and while I
was outside unstopping it Rufus Mitchell come by
and saw me and he went back in the plant and then
Frank Scott and Charles Minnic came out and saw
me, stood there and watched me for a few minutes,
and then they went back in the plant I finished un
stopping it, went back around, finished emptying
the dumpster and then went back to my department
and they came and told me Frank Scott came
and told me that they wanted to see me upstairs He
took me up there and told me they was going to
have to let me go for stopping up the hog and I
told him my material wasn t what had stopped it
up And he paged Charlie Rouse and Bennett and
Rufus Mitchell and told them what I said
Q And did any of these people say anything
about what had happened9
A Bennett said he didn t see anything but my
scrap on the conveyor at the time but what I was
dumping was cut outs off of table tops, trianguler
cut outs and what had hung it up right over the
chipper head was long strips
Q So you didn t agree with
A No sir I did not
Q what he had said Do you have any idea
of who had put in whatever it was that blocked it
up?
A Whoever was running the rib [sic] saws
Q And you really wouldn t know who that was'?
A No, sir
Q Did you point that out in any way to the
people that were there in the office?
A Yes, sir I did
22 Ball who is an employee at Respondents Chilhowie plant testified
that about 12 p in on January 30 Supervisor Robert Pnmm told her that
he had heard that she went to a union meeting that she told him yes she
did that he asked her who was there and she told him the names of the
people she knew that before that meeting it was common knowledge
that the three people she named were strong union people and that the
three were Susie Armstrong Janie and Marlins Ball did not know the
last names of Janie and Marlins Primm who at the time of this hearing
was working for another employer in North Carolina was not called to
refute this allegation the General Counsel indicated that he went into to
demonstrate knowledge
AMERICAN FURNITURE CO 425
Q Did they say anything further about it or did
they just disagree with you?
A Rouse asked Rufus what they were running
back there [on the rip saw in the rough mill] and he
said he thought they were running popular [sic] I
think
A And Rouse then told me that they should go
ahead and pay me off and send me home If I had
any grievances, I could file with the NLRB
Q Was there popular [sic] that was being run
A What I saw looked to be popular [sic] and
oak, I think I'm not good at judging what kind of
wood it is
Q When you say what you saw meaning when
you unstopped it?
A Yes, sir
Q Did that end the meeting in the office?
A I told Charlie Rouse that well, I was
scared and I told him that my attending the first
meeting was a mistake I didn t say what meeting or
say anything about where it was or anything I just
[sic] my attending the first meeting was a mistake
and that I wished he would reconsider And, he
said he didn't know anything about any meeting He
didn t have time for such things and that to go
ahead and pay me off and send me home
Regarding his termination, Browning testified that he did
not know of anyone who had been terminated for stop
ping up the hog, and that he received unemployment
compensation but the decision was being appealed by
the Company Chilhowie Plant Superintendent Rouse
testified that on January 30 the assistant foreman in the
machine room Bennett came to him and told him that
Browning had stopped up the hog that he told Bennett
to get Foreman Scott and Browning and bring them to
his office, that Browning contended that the material
that clogged the hog came from the rip saw, that he sent
for the assistant foreman of the rough mill Mitchell to
find out what kind of material was being cut on the rip
saws in the rough mill, that he asked Mitchell what type
of material was found in the hog at the place it was
stopped up and Mitchell said that it was oak and cut off
material from the machine room and that they were cut
ting poplar and there was no poplar material in the hog
stopped up at that time that he told Browning that he
had been repeatedly warned and Rouse had no alterna
tive but to terminate him that Browning said that he
was sorry that he had some association with the Union
and had been to a meeting, that he said that he did not
know anything about Browning attending a union meet
ing, that at that time he did not know about Browning
being involved in the Union, and that he gave two
verbal warnings to Browning within 6 weeks of his ter
mination for clogging the hog and he told Browning
during the second warning that it was his final warning
Mitchell testified regarding January 30 that he was on
his way back from the maintenance shop and he saw
Browning unstopping the hog outside the building that
Browning s tow motor was sitting at the dumpsite and
the dumpster was in the unload position, that he told
Browning s assistant foreman , Bennett that later that day
he was called to a meeting with Bennett, Scott, Rouse
Hilton and Browning that the only thing he was asked
was what he saw outside the building and he thought
Scott asked him the question, that Browning said that it
was scrap off the rip saw line that had stopped the hog
up, that he saw when it was dug out and laying out
beside the hog, actually what it was was pointers off the
tables, off the finish mill band saw", that during the
meeting only Browning mentioned the Union and he said
that he made a mistake in attending a meeting, that when
he first saw Browning unstopping the hog from outside
the building he did not see what kind of wood was in
volved, that he observed the wood approximately 1 hour
later, that during that 1 hour period the hog was in oper
ation, that the wood he saw was outside, that he went
back 1 hour later because we like to know what is stop
ping it up and who is stopping it up, so we can try and
prevent it", that when he first saw Browning unstopping
the hog outside the building Mitchell saw the wood that
was involved but he came back 1 hour later to see what
else might have been there, that the corners of the tables
were triangles which were 18 by 18 inches, that twice
he has seen Browning dump a load of scrap wood on the
belt without distributing it by hand, that he did not recall
what material was involved and that Browning should
not ever have dumped the entire contends at one time
even if the pieces of scrap were very small Regarding
January 30, Bennett testified that Mitchell told him that
Browning had stopped up the hog and was outside un
stopping it, that he walked up the belt and saw the stock
that was on it that he then got Scott and they both went
outside and watched Browning throw material out of the
hog, that 20 minutes later Scott told Browning to go to
the office, that he and Scott talked to Browning and told
him that we was going to have to let him go , that
when Browning said it was not his material Bennett
called Rouse that later in the meeting, after Rouse ar
rived, Mitchell was called in to verify what you know,
what was in the hog, what had stopped it up and what
have you that Rouse then told Browning that he was
terminated that Browning then apologized, indicating
that he went to one union meeting and if that had any
thing to do with it he would never go again that Rouse
said that he did not know what Browning was talking
about that when he and Scott decided to fire Browning
he did not know that Browning had been to a union
meeting that a couple of months before Browning s ter
mination he spoke to Browning twice about the way he
dumped scrap on the conveyor, and that when the hog is
stopped up the employees in Mitchell s department
throw scrap on the floor William Gray, who was called
by Respondent and who is employed at Respondent s
Chilhowie plant, testified that as a salvage saw operator
he works in the rough mill and one of his functions is to
place wood that cannot be salvaged on a conveyor belt
that takes the wood to the hog, that it was his policy
that if he or any of the other saw operators in the rough
mill stopped up the hog he would unstop it but if some
body else stopped it up he would not unstop it, that on
January 30 Browning dumped a load of scrap that con
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sisted of thin end panels from tables that were 4 or 5 feet
long, that the conveyor belt got stopped up and Brown
ing went outside and unstopped it, that a few minutes
later Browning dumped another load of the same thing
and then went outside to unstop the hog, that when the
hog gets clogged wood backs up on the conveyor belt,
that the scrap involved on January 30 is not the shape
and size of material that the machine room produces
most of the time, that the hog got stopped up two or
three times a week during the year before Browning was
fired, that if wood 4 feet long gets through the 2 by 2
foot opening into the chute it is possible that wood
might not drop in such a way that it clears the 3 by 3
foot opening at the bottom of the chute leading to the
grinder, that he was not sure where the stoppage oc
curred on January 30, and that the wood on the convey
or belt could shift as it goes up the 15 foot incline to the
opening to the hog Larry Harper , who replaced Brown
ing, testified that he has never clogged the hog, that the
three times he experienced stoppages they occurred at
the opening to the chute, which leads to the hog, that in
each instance it involved strips about 3 or 4 feet long,
that although he took care to make sure that the wood
was placed on the conveyor by hand correctly the pose
tion of the wood changed as it went up the 25 foot in
cline on the conveyor, which is on rollers and that there
is another belt that dumps wood on the hog conveyor
and knocks the wood he places on the hog conveyor out
of place Barbara Miller testified about Browning s disci
plinary history, Respondents Exhibit 13 and she spon
sored an exhibit Respondents Exhibit 37, that shows six
employees were terminated for poor performance, in
cluding Browning , between July 1985 and September
1987 Excluding Browning , the terminations were for dif
ferent types of poor performance, and Respondent did
not assert that any of the others was terminated for clog
ging the hog
The General Counsel on brief, contends that to send
for Mitchell to verify the cause of the stoppage after Su
pervisor Bennett had already told Scott you can see
what has it stopped up ' and then to proceed to termi
nate Browning before Mitchell actually determined the
type of wood involved suggests a rush to judgment
better explained by Browning s protected activity than
by the supposed deficiency in his performance and that
all the elements for a prima facie case i e, protected ac
tivity Respondent's knowledge and antiunion animus are
present and the evidence of pretext is so strong as to pre
elude analysis under Wright Line, 251 NLRB 1083
(1980) enfd 662 F 2d 899 (1st Cir 1981), cert denied
455 U S 989 (1982) Respondent argues, on brief that
maintenance department records of problems with the
hog before January 30 and after clearly show a pattern
supportive of Respondents claim that Browning was a
loose cannon when it came to job performance, Re
spondent s Exhibits 20 through 26 and that Browning
had a history of work problems and was properly termi
nated
As noted above part of that disciplinary history two
of Browning's alleged written warnings were in my
opinion, fabricated Browning testified that before he
said anything about attending a union meeting Rouse
said, They should go ahead and pay me off and send
me home If I had any grievances, I could file with the
NLRB Rouse never specifically denied making this
statement Browning is credited Consequently Rouse,
not Browning, first brought up an activity that might be
protected by the Act Browning testified that no one was
ever fired for clogging the hog Respondent does not
refute this In the approximately 18 months before
Browning was fired only three other employees were
terminated for poor performance Respondent did not
demonstrate that anyone else has ever been terminated
for clogging the hog When the evidence of record, as
summarized above, is considered as a whole, one must
conclude that at times whether the hog (either at the
opening to the chute or at the bottom of the chute) clogs
is beyond the control of the person who dumps scrap
wood on the involved conveyor belt As the General
Counsel asserts, there was a rush to judgment here On
January 30 Browning was first told that he was terminat
ed before it was even determined whether he was at
fault The General Counsel has made a prima facie case
in that he has demonstrated that Browning engaged in
union activity, Respondent knew, and there was antiun
ion animus on the part of Respondent This is a pretext
situation 23 If it were not, Respondent has not shown a
business justification Respondent has not shown that it
would have terminated Browning notwithstanding his
union activity Respondent violated the Act in terminat
ing Browning
On January 31 Heath, an employee at Respondents
Chilhowie plant complained to Supervisor Primm about
being harassed by another employee who was against the
Union Primm pointed out to Heath that the individual in
question was trying to keep a third party out of the
plant He also told her that if she signed a petition that a
specified employee had against the Union she would be
left alone by the antiunion forces Later Heath signed
the petition at the timeclock although she wanted to
remain neutral
Larry Hall who as noted above was formerly em
ployed by Respondent at its Chilhowie plant, testified
that on January 31, a Saturday, he stopped in the
evening to buy cigarettes at Miller s Place in Chilhowie
that fellow employee John Hayes was in the store and
Hall asked him what he thought about the Union that
Maintenance Foreman Boyd Mabe walked into the store
and overheard what Hall said and that Mabe com
23 On brief Respondent asks [i]f in fact he attended the January 6th
union meeting and if in fact the evidence against him is conjured up as
he claims why would the Company have waited until January 30 Per
haps it was a question of timing Respondent through Supervisor
Pnmm s interogation of Ball demonstrated that it knew about the union
meeting the night before January 29 Respondent apparently had some
information regarding who attended as Pnmm was able to tell Ball that
he knew she had attended the meeting Perhaps they were concerned
about how many employees were expressing an interest in the Union
Perhaps Respondent decided that it was time to send a chilling message
to the employees Obviously the use of the word perhaps indicates that
this is an exercise in speculation admittedly the matter treated in this
footnote is speculation The conclusions reached in the body of the deci
sion are not however speculation No reliance was placed on the specu
lation in this footnote in reaching the conclusions regarding Browning s
termination
AMERICAN FURNITURE CO
menced a cussing on this Said we s all going to get
fired That we didn t need no Union and we wouldn t
going to have no jobs and we s all going to get fired for
going for the Union' Mabe testified that he was in Mil
ler s, a local grocery store in Chilhowie, in late January
and he had a conversation with Hall, that when he went
to the door Hall asked him to sign a card, that he told
Hall, no, I 11 tell you, you take those damned cards and
stick them in your ass I ve got other things I need to do,
I am t got time to mess with you' , that about 2 or 3
weeks later Barbara Miller kidded him about having an
argument in one of the stores uptown and he told her at
that time what was said , that when Miller kidded him
she did not know Hall was involved, that when he dis
cussed the incident with Miller he named Hall, that in
the intervening 2 weeks between the incident and when
he spoke with Miller he did not tell anyone at Chilhowie
or Marion about what happened because this was a off
work thing, and people have arguments off the job
and I don t take it back to the job I didn t figure it was
a concern of them' that he never mentioned his conver
sation with Hall in the store to anyone in management or
supervision at the Company before he discussed the inci
dent with Miller that part of Miller s family owns the
grocery store, and that he told Miller that Hall asked
him to sign a card but he refused Barbara Miller testified
that on February 14 her husband told her that he had
heard that Mabe had been in a fight at Miller s, that
when she went to work the following Monday, February
16 she told Mabe that she had heard that he had some
problems downtown and she asked him what happened
and that he told her about the incident
Paragraph 27 of the amended complaint alleges that
Respondent unlawfully discharged Larry Hall on Febru
ary 2 Hall testified that on February 2 leadman James
Halsey told him that Assistant Plant Manager Musser of
the Marion plant, wanted to see him, that Halsey Assist
ant Foreman Douglas Testerman, and Musser had a
meeting regarding a frame mitering job that Hall and
Halsey performed the week before, that there was a
problem on the mitering on a number of the frames that
Hall had operated the machine involved and Halsey
caught almost all the frames coming out of the ma
chine that Musser said that he was going to give Hall a
warning and he wrote it out (R Exh 19), that Hall said
that he was not going to sign the warning because he did
not do it in that the leadman was the one who caught
the frames and he said they were all right that Musser
said that he did not care and if you don t sign it you
can't work here that he said that he was not signing
something he did not do, that Testerman escorted him
out of the plant, that neither Musser nor Testerman ever
told him before February 2 that he had to sign a warning
or he would be terminated, that he agreed that the work
was defective that although he operated the machine in
volved Halsey was the boss and what he said went
that Halsey looked at about 90 percent of the frames and
said they were all right and that was the best that could
be done and that he refused to sign the warning because
Halsey went and showed them to Musser and he said it
was alright Prior to that And that s when he said go
ahead Halsey testified that Musser asked him who mi
427
tered the frames and he told him that it was Hall, that
Musser asked him and Hall what happened to the frames
that Musser told Hall that he was going to have to give
him a quality warning for it Larry told him he was not
going to sign no quality warning And he told Larry that
that was company policy to sign a quality warning , that
Hall handed him the scale and calipher that Hall used,
that Testerman escorted Hall to his car, that he received
a quality warning for the bad mitering (R Exh 18), and
that he did not hear, in this meeting, anything to the
effect that Hall could refuse to sign the warning and still
be employed by Respondent Musser testified that on
January 31, Saturday, they discovered that many of the
involved frames had incomplete miters that two employ
ees worked that morning sanding the frames so that they
could be used, that When we have something this
severe we give our employees a quality warning and
note it on the back of their pink slip, and they sign it to
acknowledge that they received the warning , that he
told Hall, "I'm going to sign it to acknowledge that they
received the warning', that he told Hall, I in going to
give you all which I meant Halsey and Hall both
a quality warning" that as he wrote out the warn
ing on the back of Hall s pink slip Hall said that he was
not going to sign it that before he could complete writ
ing the warning and sign it Hall handed Halsey the scale
and ruler that Hall used, that Hall repeated again that he
was not going to sign it and Musser said, Well you
know our policy that in the past Hall has refused to
sign a warning that 300 to 400 frames were defective
out of the 1600 to 1700 frames which were run altogeth
er that Hall said there was something wrong with the
machine that he told Hall if there was something wrong
with the machine all the frames would have been wrong,
that a quality warning has never been used to justify a
termination , that he did not have a prior sign that Hall
was considering quitting,24 that the machine can get out
of adjustment that the angle of the miter cut on the 18
inch frame was correct but for some unexplained reason
the last one half inch of the cut looked like it kicked out
or did not hold that the operator should have stopped
the machine when he found the defective material that
while the cut was being made Hall would have had no
way of knowing, that Halsey would have been the first
to see the mistake since he was taking the frame out of
the back of the machine and that notwithstanding the
fact that there was a leadman taking the product off the
machine, if there was a problem with the product, which
should have been seen by the leadman behind the ma
chine the operator who works in front of the machine is
also held responsible Testerman testified that during the
meeting Musser said that he was going to have to give
a quality warning for the bad quality of the furniture ,
that Musser then took a pink slip, the warning and
asked Larry to sign it for the quality problem that was
there Larry said he wasn t going to sign it that Musser
said Larry you know it s company policy to sign and
Larry said I in not going to sign it that Hall then gave
24 Halsey and Testerman also testified that Hall had not given any
pnor sign that he was considering quitting
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Halsey his calipher and scale and that he escorted Hall
out of the plant
On brief, the General Counsel contends that we have
only Mabe s word for it where he stated that Barbara
Miller was the first person in management he told about
his verbal exchange with Hall in Miller s store that pre
sumably the verbal exchange between Mabe and Hall
had already become common knowledge, that the evi
dence does not bear out Respondents claim that Hall re
signed in some sort of momentary pique and that when
Callen in their conversation of February 3, as treated
infra, said When you refused to sign that warning, you
automatically quit Respondent was merely fulfilling the
threats enunciated the week before Respondent, on
brief, argues that Hall was found by the Virginia Em
ployment Commission to have voluntarily quit his em
ployment , 25 that a claim could be made that Hall was
constructively discharged , but it was not alleged and,
moreover , it would be without substance , that here Hall
should have signed the quality if that is what Musser di
rected and he could have challenged the perceived
25 The decision of the Commonwealth of Virginia Virginia Employ
ment Commission in the matter of Larry Hall R Exh 17 and the Iran
script of the hearing in that proceeding R Exh 33 were received in evi
dence here Unemployment Compensation Board findings about why a
certain employer/employee relationship cases have probative value but
are not controlling in a Board proceeding Duquesne Electric 212 NLRB
142 (1974) The Virginia Unemployment Commission decision will be
given no weight however because the conclusions reached there are
based on errors about what the record there shows More specifically
the OPINION portion of the Commissions decision reads in part as
follows
In this case even though the claimant alleges he was discharged a
review of the record reflects the claimant s testimony is not the most
credible testimony in the record There is considerable conflict in the
claimants own testimony as to whether or not the superintendent
told him he could not work if he did not sign the warning At one
point the claimant testified concerning the superintendent telling
him if he did not sign the letter he could not work The claimant
stated He said if you didn t sign it you didn t work there [Tr
34 1 Later when the claimant was questioned about being informed
by the superintendent that he couldn t work there the claimant
stated No not by Mr Musser by the foreman [Tr 38 ] In re
sponse to the following question Why do you think you you re
[sic] testimony is that Mr Musser said to you uh sign it or you
cant work here or words to that effect9 the claimant answered
Yes sir [Tr 40 ]
Contrary to the Commissions opinion there is no conflict regarding
the cited testimony on pp 34 and 38 of the transcript Contrary to the
opinion of the Commission on p 38 the claimant was not being ques
tioned about being informed by the superintendent that he could not
work there if he did not sign Rather the question Hall was answering
dealt with occasions before February 2nd (Emphasis added) Apparent
ly the Commission did not appreciate the significance of the wording of
the question The conflicts asserted by the Commission do not exist Its
conclusion based on its erroneous findings is entitled to no weight Hall
testified in that proceeding that the jig used for that job was defective
that in his opinion that is what caused the problem that he could not
look at the frame after it is sawed because he is in front of the machine
and the frame after it is cut comes out of the back of the machine that
leadman Halsey was in the back of the machine taking the frames out
after they were sawed that you would never get it done if you went
back there and looked at all of it that leadman Halsey was catching
them that day off the machine he looked at every one of them piece by
piece he said they was satisfactory and I wasn t gonna sign something
that he okayed he showed it to the foreman two or three times and he
said it was okay and he caught them that he has used the defective jig
for 2 or 3 years and that consequently the cuts have always vaned that
he has told his supervisors about the problem since he began using the
jig and that when he told Freeman Halsey and Musser about the jig
they all told him that it would do
policy change in an unfair labor practice charge that
Hall should not be allowed to ripen a lawful quality
warning into a discharge , and that Respondents total
lack of animus toward Hall is amply demonstrated in
Callen s testimony , treated infra that Hall was informed
that if he reapplied for his job before it had been filled
he would be working today
I do not credit the testimony of Mabe that he did not
tell anyone in Respondents management about his verbal
exchange with Hall in Miller s store Saturday night, Jan
uary 31 , until he was asked about it by Barbara Miller
Mabe claims that he did not tell Respondents manage
ment before that because he did not figure it was a con
cern of them He did not testify that when Miller asked
he told her that it was not a concern of hers Perhaps he
views volunteering information and being asked about it
differently Mabe is one of Respondents supervisors It
borders on the absurd for him to be asserting that he fig
ured that those acts involved in the attempted unioniza
tion of Respondents two involved plants would be of no
concern to it It must be concluded that when this super
visor knew the extent of Hall s union activities Respond
ent knew Knowledge of a supervisor about an employ
ee s union activity is imputable to a respondent Alabama
Textile Produce 164 NLRB 88 (1967)
The supervisors versions of what occurred in the Feb
ruary 2 meeting with Hall differ All the individuals
agree regarding the following ( 1) Musser did not write
out Halsey s warning first (2) Musser did not specifically
state while Hall was in the room that Musser was even
going to give Halsey a warning (even if Musser said
you all it would not necessarily follow that he meant
other than Hall alone since Musser gave no other indica
tion that such was the case Moreover the other supervi
sor, Testerman testified about a quality warning and not
quality warnings Halsey did not testify that anything
that Musser said before Hall left the meeting would have
indicated that Halsey also was receiving a quality warn
ing) and (3) Musser did not write out both warnings and
then present them to Halsey and Hall at the same time
for their signatures Musser never specifically denied
Hall s testimony that Musser knew about the problem as
the frames were being mitered This meeting occurred
only 5 days after Plant Manager Callen told Hall that he
had been advised to fire a son of a bitch and his wife
both because the husband had engaged in union activi
ty Hall had to wonder whether he was being set up to
be fired (Musser s testimony that a quality warning is
not used as justification for termination even if cred
ited-Respondent did not specify what the poor per
formances were on Respondents Exhibit 13-does not
demonstrate that Hall knew this and could have relied
on this past position of Respondent It would be specula
tion either way viz that he would be fired after signing
or that he would be allowed to stay after signing)
Musser s claim that he only brought up company policy
after Hall turned in his calipher and ruler is not credited
Musser s testimony is not credited that he said only
well you know our policy The other supervisor
present, Testerman testified that after Hall refused to
sign and before he turned in his calipher and ruler
AMERICAN FURNITURE CO 429
Musser said You know it is company policy to sign
(Emphasis added) Halsey gave the same testimony
Musser was not giving Hall a choice to stay even if he
did not sign the warning Hall is credited with respect to
his testimony that Musser said that if you do not sign it
you do not work here Hall was unlawfully discharged
He engaged in union activity Respondent knew, and
there was antiunion animus on the part of Respondent
Respondent has not demonstrated that it has ever fired
anyone else for refusing to sign a warning There was no
business justification for discharging Hall and since Re
spondent sticks to its position that Hall quit, it has not
demonstrated that Hall would have been fired for any
other reason than his union activity
Larry Hall returned to the plant the next day, Febru
ary 3 He testified that he asked Plant Manager Callen
for the necessary documentation to draw unemployment,
that Callen said, No, when you refused to sign that
warning you automatically quit , that he told Callen that
Hall did not quit and Callen said Yes you did and
that he then left the plant Callen testified that Hall asked
for a layoff slip so he could draw unemployment, and
that he told Hall no because his record showed that Hall
quit Hall is credited This was the position Respondent
took on February 2 and it continued to maintain this po
sition
On February 4 Browning went to see Barbara Miller
He testified that she told him that she could not release
the information to him if anybody else had ever been
warned or fired over stopping up the hog that when he
asked for his job back she told him that he could refile
an application in 30 days and that Respondent never of
fered him his job back
On February 5 Larry Hall again spoke to Callen Hall
testified that when he asked Callen for his job back
Callen said that he had replaced him that if he had come
in a couple of days before Callen would have considered
it, and that if Callen had been there on February 2 it
would not have happened Respondent has not offered
Hall his job back Callen testified that he told Hall that
he was sorry but that he had been replaced and there
were no openings for him at that time
When he received his 30 day review in February,
McGhee was again denied a raise because he was sup
posed to report for work on a Saturday he did not
show, and he did not call in He received a discipline (R
Exh 14) because he agreed to work 5 hours on a Satur
day and then did not show
Linda Atwell and Heath, both employees of Respond
ent at Chilhowie received warnings on February 13
which they refused to sign (R Exhs 7 and 10 respective
ly) Barbara Miller subsequently told both of these em
ployees that they did not have to sign
Paragraph 14(a) of the amended complaint alleges that
Respondent, acting through Supervisor Rouse, on or
about February 18, at the cabinet room department of
the Chilhowie plant, interrogated employees regarding a
union meeting James Stewart testified that on February
17 Rouse approached him and asked him if there was a
union meeting at the Lions Club on February 18 and
that he told Rouse not that I know of Rouse admitted
this pointing out that Stewart is a friend of his stepson
Contrary to the assertions of Respondent in brief this al
legation should not pursuant to Sunnydale Medical
Clinic supra be dismissed Here there is a history of em
ployer hostility toward or discrimination against union
supporters The nature of the question was not general it
dealt with a very important union activity that might
have involved other employees Although Stewart was a
friend of Rouse s stepson this was not a casual conversa
tion between a supervisor and an employee who work
closely together Rather, it was an on the job interroga
tion between the plant supervisor and an employee
Stewart, a former high school athlete of some renown in
that area, might be reluctant to admit that he felt intimi
dated or threatened by Rouse Nonetheless, considering
all the circumstances the interrogation reasonably
tended to restrain coerce, or interfere with the rights
guaranteed by the Act This interrogation was a viola
tion of the Act
Simmons an employee at Respondents Marion plant,
testified that she received flyers in the plant about em
ployees against the union meeting to be held February 18
(R Exhs 23-25) Simmons also testified that the day
after the February 18 meeting her foreman, James Cook,
gave her a flyer, which thanked employees for attending
the meeting, and that Cook told her that Callen said to
thank everyone for coming to the meeting the night
before Some time in March McGhee received a 10 cent
an hour raise
Paragraphs 14(b) and (c) of the amended complaint al
leges that on or about March 26 Rouse, in the rub room
of the Chilhowie plant respectively, interrogated em
ployees about the union sympathies of other employees
and created the impression of surveillance of the union
activities of employees Goodman an employee at the
Chilhowie plant testified that on February 26 Rouse
struck up a conversation with him on the job that Plant
Superintendent Rouse asked him if he had heard any
union talk to which he answered no that Rouse then
said that he wished that James and Susie wasn t in
volved in the union, that he liked them very well' and
that at that time the Company did not have any way of
knowing how he felt about the Union Rouse denied
these allegations The General Counsel on brief, con
tends that according to the testimony of Goodman
Rouse conducted an unlawful interrogation and, appar
ently referring to Sue Armstrong and another employee
suggested his disapproval of their involvement with the
Union Respondent argues, on brief that Goodman dem
onstrated his ill concealed hostility toward Respondent
when he testified I would like to see that plant have to
pay out their butt for the way they ve done me , that
Goodman conceded that he really did not read his affida
vit to the Board carefully before signing it, and that this
allegation should be dismissed because it simply did not
happen Goodman s testimony on this point is not cred
ited Notwithstanding the fact that Rouse, as he himself
admits had already interrogated an employee, Goodman,
with his outburst, demonstrated that he had some very
strong feelings about Respondent His expressed feelings
of hostility cast a cloud over his testimony to such an
extent that I do not believe that it can be relied on in
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these circumstances Paragraphs 14(b) and (c) will be dis
missed
Paragraph 27 of the amended complaint alleges that on
March 31 Respondent unlawfully discharged Janie Gil
lespie She was terminated for allegedly failing to call
her March 30 absence in by 9 am Both the employee
handbook (R Exh 3) and the company rules posted on
bulletin boards since 1982 (R Exh 4) (it is the first rule
stated in the posting) state ABSENCE FROM WORK
It is the responsibility of each employee to notify his [or
their' in the posted rule] immediate supervisor prior to
9 00 a m every day that it is absolutely necessary to be
absent' Gillespie received two prior warnings which
speak to the call in time The first, dated October 28,
1986 (R Exh 5(d)), which she signed states Anymore
absences we consider to be excessive with or without
excuse will be grounds for termination You have to
call in before 9 00 AM every day The second (R
Exh 5(g)) dated February 3, 1987 which she refused to
sign, states Any further absence without calling in by
9 00 a in will result in disciplinary action up to and in
eluding termination ' Barbara Miller testified that under
Respondents progressive discipline system Gillespie had
been given two previous warnings for not reporting on
time and this, the third infraction, resulted in her terms
nation Gillespie testified that she did call in her absence
before 9 a in on March 30 The General Counsel called
Ann Widener who assertedly was with Gillespie when
she called in Widener was not a reliable witness, howev
er, because she refused to be candid while testifying
about her past experience with the law Secretary Joyce
Miller testified that she received the absence call from
Gillespie at 9 15 am and she recorded it (R Exh 36)
Gillespie's foreman, Robert Dorsey testified that he
checked with personnel at 9 am on March 30 and he
was advised that Gillespie had not called in yet Barbara
Miller sponsored (R Exh 38) shows that between July
23, 1985 and October 6 1987, 14 employees, including
Gillespie were terminated for not reporting their ab
sence on time The General Counsel, on brief, contends
that it was Gillespie and Widener who testified accurate
ly about this matter Respondent on brief, argues that
the credible evidence is that Gillespie called in at 9 15
a in and was properly terminated since she previously
had failed to call in on two occasions The General
Counsel has made a prima facie case in that he has dem
onstrated that Gillespie engaged in union activity Re
spondent knew, and there was antiunion animus on the
part of Respondent Gillespie is not credited regarding
when she assertedly called in on March 30 and about her
testimony regarding the alleged nonverbal communica
tion of Dorsey on March 31 His alleged nonverbal ad
mission that she was being terminated because of her
union activity was of such importance that it would have
been included in her subsequent affidavit to the Board
regarding her termination It was not It represents a be
lated attempt to bolster her position It also, however
helped undermine her credibility regarding this matter
Respondent has terminated employees for this type of
conduct It had a business justification for the termina
tion It did not violate the Act in terminating Gillespie
Paragraph 21 of the amended complaint alleges that on
or about April 2 Respondent permanently transferred
Parks from the job of production control clerk to the
cabinet room Parks testified that she was permanently
transferred on April 2 that there was a history of perma
nent transfers at Respondent prior to January 1987, and
that when she was transferred employees who had done
inspection work before did her inspection job Barbara
Miller sponsored an exhibit (R Exh 11) which shows
that 21 employees were transferred from one department
to another in the 2 years prior to Parks transfer The
General Counsel, on brief, contends that Parks perma
nent transfer reflects Respondents continuing animus
against Parks fro her outspoken and conspicuous union
sympathies Respondent, on brief, argues that the pro
duction control department in which Parks worked was
reuuced from eight to five employees that of the three
employees transferred only one Parks was involved
with the Union and they were transferred out according
to their company service, that there is a history of per
manent transfers, and that Parks does not assert that
some unspecified individual should have been transferred
in her place Respondent has demonstrated that it had a
business justification for this transfer and it appears that
it would have been made whether Parks engaged in
union activity This allegation will be dismissed
Paragraph 18 of the amended complaint alleges that on
or about April 23 McGhee testified on behalf of Brown
ing at the latter s unemployment hearing Paragraph 19
alleges that on April 25 Respondent issued an oral warn
ing to McGhee McGhee testified that during the unem
ployment hearing he was asked what type of person As
sistant Foreman Bennett was and he answered that Ben
nett is the type of person who will tell one person one
thing and another person something else that the next
day Bennett would not look at or speak to him, that the
days after that even though he did not have a wood box
behind his saw, he cut some wood and the steps fell on
the floor behind the saw that after about 30 minutes
there were 12 to 15 pieces of wood laying on the floor
that Bennett got a wood box picked up the strips on the
floor and placed them in the wood box placed the wood
box behind McGhee s saw, and told McGhee that he did
not want to see him take that approach again that the
guy standing next to him did not have a wood box
either and although his scraps went on the floor also
Bennett did not say anything to him and that Bennett
told him that if he had to he should get a cardboard box
and put the scraps in it and then dump it in the trashcan
Bennett testified that he did not know McGhee testified
in Browning s unemployment proceeding until Bennett
testified the General Counsel on beef contends that
Bennett s disparate singling out of McGhee demonstrates
Respondents hostility toward activity protected by Sec
tion 8(a)(1) of the Act Respondent, on brief, argues that
Bennett did not give McGhee an oral warning but
rather it was merely a work directive that what
McGhee observed was a foreman who was thoroughly
irritated by what McGhee said about his veracity that
between January 6 when McGhee commenced his union
activity and April 25 he experienced no problems with
AMERICAN FURNITURE CO
Bennett , that the only problem came 2 days after
McGhee impugned Bennett s veracity and that if there is
any motivation in Bennett s alleged mistreatment of
McGhee on April 25 it is not for union activity, but
simply because Bennett was mad The only action taken
against McGhee subsequent to his testifying at the
Browning unemployment hearing was taken by a man
who McGhee , in effect , called a liar Bennett as noted
above , testified that at the time he did not know that
McGhee testified in Browning 's unemployment hearing
If one agrees with the position Respondent takes on
brief, then one must conclude that Respondent also, in
effect , concurs with McGhee s observation that Bennett
is a liar , unless Bennett became aware of what McGhee
said but was not aware of where and under what circum
stances he said it In my opinion , the position taken by
Respondent on brief is correct What Bennett said to
McGhee was little more than an outburst , the taking ad
vantage of an opportunity by Bennett to show his dis
pleasure not at the fact that McGhee testified at the
hearing but rather about what McGhee said about Ben
nett 's veracity The outburst was not unlawful This alle
gation will be dismissed
Paragraph 23 of the amended complaint alleges that on
or about April 30 employee Carol Sue Armstrong con
certedly complained to Respondent regarding the work
ing conditions of Respondents employees Paragraph 24
alleges that on or about May 4 Respondent gave Arm
strong the job of wiping excess filler in addition to her
regular job of pulling six drawers and putting on and
wiping off excess filler Paragraph 25 alleges that on or
about May 6 Respondent changed the job of Armstrong
from pulling drawers to dry wiping the backs of desks
Armstrong testified that on April 30 she told Supervisor
Dorsey that she did not believe that Atwell had been
fairly treated when she was written up for substandard
work and a bad attitude , and They stayed on her back
all the time They wouldn t give her any help , that
Dorsey said he relied on what the lead ladies told him
and Atwell was not the only one to be written up for
substandard work , that she then told Dorsey that he had
to write somebody else up to make it look good , that on
her next workday , May 4 , she was transferred to a
harder job viz pulling drawers and wiping excess filler
that she told Assistant Foreman Carl Haynes that she
could not keep up with the two jobs , that at the time she
was not required at her usual job, namely zip sanding
because the suite of furniture being run did not require it
that she experienced the difficulty in keeping up when
the employee assisting her was given another job for 45
minutes, that she never saw one person pull drawers and
wipe excess filler , that for 45 minutes she was handling
what was normally a two person job, and that subse
quently she was assigned to dry wipe which was a
harder job than zip sanding Dorsey testified that he did
have a conversation with Armstrong on April 30 about
Atwell , that Armstrong said that she thought that
Dorsey treated Atwell unfairly and that there have been
other times when an employee pulled six drawers and
wiped excess filler Three other employees , Joy Harris
Peggy Borders and Linda Olinger , testified that there
have been occasions when they have pulled six drawers
431
and wiped filler and had a hard time keeping up On
brief, the General Counsel contends that putting Arm
strong into more disagreeable work then she normally
performed appears to be a classic example of retaliation
for protected activity Respondent on brief argues that
Armstrong was not engaged in protected concerted ac
tivity when she spoke to Dorsey about his treatment of
Atwell , but rather she was as she herself testified,
merely expressing her opinion , and that other employees
had done the job Armstrong complained about for
longer periods It appears that the transfer from her
normal job of zip sanding on May 4 did not occur for
any reason other than that her services as zip sander
were not required on the suite being run In other words,
Armstrong was going to be transferred on May 4 wheth
er she engaged in protected conduct before that There is
no complaint about the job she was assigned on May 4
Rather the complaint stems from the fact that for 45
minutes she was left alone to perform the function as
signed The General Counsel does not refute the fact
that there was a genuine need to have the employee who
was assisting Armstrong do something else for 45 min
utes Moreover , other employees testified that they per
formed the same function that Armstrong complains
about for a lot longer than 45 minutes When Armstrong
was subsequently assigned to dry wipe it does not appear
that her zip sanding job was available or at least the
General Counsel did not make this showing Transfers
are commonplace at Respondent, especially when the
function normally performed by the employee is not
needed on the particular suite being run It cannot rea
sonably be expected that when such transfers occur they
will be to easier jobs or at least to jobs that have ap
proximately the same level of difficulty as the employees
normal job The General Counsel has not demonstrated
that the two involved changes were unlawful There is
no need , therefore to go into the question of whether
Armstrong was engaged in protected concerted activity
on April 30 The allegations will be dismissed
Paragraph 22 of the amended complaint alleges that on
or about May 5 Respondent gave Parks an evaluation in
which she was rated substandard in cooperation and
housekeeping General Counsels Exhibit 14 is an hourly
employee merit review for Parks dated May 4 Parks re
ceived a standard rating for all the categories listed
except three , namely, she received a below standard
rating for cooperation and for safety and housekeeping
and a poor rating for attendance Parks testified re
garding this review that she was called into Bill King s
office and he and Rouse were there, that King said
We ve got your review here We re going to give
you a load of sense that she asked why she re
ceived a below standard rating for safety , that the hand
written word `housekeeping was not on the form at the
time that King said that it referred to housekeeping and
the word housekeeping" was subsequently added and
that she did not see a below standard rating on the form
for cooperation Barbara Miller testified that she was fa
miliar with the fact that Parks was rated as substandard
in housekeeping and cooperation , that the rating had a
bearing on the amount of increase Parks received that
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Parks foreman King, would be the person to ask on the
exact details on the cooperation rating, that all the em
ployees in the cabinet room receive substandard house
keeping ratings, and that over the 1 year period covered,
September 1986 to September 1987, a number of employ
ees, as shown in Respondent's Exhibit 12, received sub
standard ratings in cooperation and/or safety On brief,
the General Counsel, contends that notwithstanding the
statement of Miller as described above Parks foreman
was not called to explain the details on the coopera
tion rating and that Respondent has not brought for
ward evidence that would rebut the likelihood that in
view of its dealings with Parks in January and April, as
described above its unfavorable appraisal of May 1987
reflected its continuing animus against her outspoken and
conspicuous union sympathies Respondent, on brief,
argues that Parks has received a number of written
warnings, including one in 1986 for lack of cooperation
with other employees, that as demonstrated by Respond
ent's Exhibit 12, Parks was not singled out, that at the
same time she was rated substandard on May 5 she was
also given a raise, that the 11 cent an hour increase she
received took her to I cent of the maximum rate of her
job,26 and that the rating she received was for instruc
tional purposes only The General Counsel has made a
prima facie case in that Parks engaged in union activity,
Respondent knew, and there was antiunion animus on
the part of Respondent On the other hand, Respondent
does not come forward with evidence to show that there
was lawful justification for the rating Respondent wit
ness Barbara Miller testified that Parks foreman would
be the one to explain the rating Parks foreman did not
testify, however, and no one explained what King meant
when he told Parks we re going to give you a load of
sense Miller s explanation about the housekeeping
rating is nothing more than a conclusionary statement on
her part and the basis for her conclusion was not explic
itly given In short on this record there is no justifica
tion for the below standard ratings Such ratings were
unlawful While Miller testified that the rating had a
bearing in the amount of increase that Parks received,
the 11 cent an hour increase she received is in line with
her prior increase that was given before her union activi
ty
Paragraph 13 of the amended complaint alleges that on
or about May 11, Respondent, acting through specified
supervisors at the Marion plant, interfered with re
strained and coerced its employees in the exercise of
their rights guaranteed by Section 7 of the Act by inter
fering with the handbilling for organizational purposes
by representatives of the Union through the following
actions (a) gathering at the site of the handbilling, (b) di
recting the traffic of the employees leaving the premises
by car so as to discourage the employees from stopping
to receive a handbill, (c) telling employees leaving the
premises by car that Respondent did not care if employ
ees ran over the union representatives (d) telling em
ployees leaving the premises by car to go ahead and run
over the union representatives, and (e) telling employees
26 According to Parks hourly merit review form her rate went from
$5 49 to $5 60 Also according to the form the maximum rate is $6 51
not to stop and not to take the Union s literature Earl
Hearn, who is a union representative, testified that on
May 11 he handbilled at the exit of Respondent s Marion
plant, that he was accompanied by two other union rep
resentatives, Roger White and Gary Hawthorne, that at
3 30 p in the employees left the plant, that he handed
out the Union's leaflet (G C Exh 6) that of the first 40
cars that exited from the plant about every other one
would take a handbill, and Plant Manager Callen, Assist
ant Plant Manager Musser, and several other supervisors
came out to the exit gate that about 20 to 30 percent of
the cars had left the plant when Callen came to the exit,
that Callen began to direct traffic, that after Callen ar
rived on the scene he gave out only one or two handbills
to the occupants in the rest of the cars that left the plant
that afternoon, that Callen told the drivers in the exiting
cars hurry up be careful when you go out into the
street , that in response to a question from the occupants
of one of the exiting cars Callen said, As far as I in con
cerned you can run over the son of a bitches and that
he was standing no more than 12 to 15 feet from Callen
Hawthorne testified that when Callen and the other su
pervisors arrived at the gate about 25 percent of the ve
hicles in the lot had exited, that twice Callen told occu
pants of exiting cars to go ahead and run over the
S 0 B s , that he was standing 10 feet from Callen and
that while he handbilled every other car before Callen
arrived on the scene, he only gave out one handbill after
Callen arrived Two of Respondents Marion employees
also testified about this incident Ginger Hall testified
that Callen was telling the occupants of the exiting cars
don t stop, go on watch out for traffic we don t want
no one getting hit here today , and that she did not
recall since she went to work for Respondents in 1984
members of management on snow days assisting cars to
get onto the highway Simmons testified that Callen told
her as she drove out the exit do not stop that nonethe
less she did stop so that she could see if there were any
vehicles coming that the driver of the car ahead of her
stopped and looked before entering the highway but the
other drivers she saw just went on through and that
she did not recall ever seeing supervisors at the gate di
recting traffic before this and she has worked at this
plant since 1981 Callen testified that approximately 160
vehicles park in the Marron plant parking lot on a daily
basis, that he went to the main gate on May 11 because
he did not want anyone to get hurt that in his opinion
the handbillers were impairing the vision of the drivers
who wanted to pull out onto the highway, that several
times in the past he has assisted vehicles pull out during
snowstorms, and that he did not tell his employees to
go ahead and run these son of a bitches over, but
rather several of his employees asked , Bill is it okay if I
run over the son of a bitches to which he replied Hey
you re driving the car, don t hurt yourself or your vehi
cle Virginia State Police Trooper Tom Hutton testified
that vehicles existing the involved plant are required by
law to stop before entering the highway even though
there is no stop sign at that location that if the occu
pants of the vehicle were handbilled when they stopped
there would be no problem but the handbiller depending
AMERICAN FURNITURE CO 433
on where he was standing might interfere with the visi
bility of the driver, and that if someone told the drivers
not to stop he would, in effect, be telling the drivers to
violate the law The General Counsel on brief, contends
that if anything Callen's action created, rather than
averted, a traffic hazard and while Callen did nothing to
promote safety, he quite effectively thwarted the hand
billing Respondent, on brief, argues that to attribute the
employees lack of interest in the union handbills to Cal
len s traffic direction, which flowed from a concern
about his employees, is specious, that Callen's above de
scribed joking retorts are protected under Section 8(c) of
the Act, that Respondent's right to safely monitor its em
ployees exiting overnded the Union s right to handbill at
that time and at that place, and that if the presence of
Respondent s management impacted on employees de
sires to take handbills, that too is subordinate to Re
spondent s right to govern the traffic flow from the
plant Respondent cites Southwire Co, 277 NLRB 377
(1985), which assertedly held that a management official
merely observing union handbilling with no ostensible
purpose is permissible The involved issue in Southwire
Co, supra was surveillance Here the question is wheth
er Respondent unlawfully interfered with handbilling for
organizational purposes In my opinion it did This is not
merely a question of the presence of Callen and the other
supervisors It turns on what Callen did and said once he
got to the gate It would have been one thing if he
merely stood there It is quite another when he went so
far as to direct an employee to violate the law by not
stopping before going out onto the highway Callen had
one purpose He did not want his employees to take the
handbills Once again he let his antiunion animus get the
best of him Whether his version or the testimony of the
others present is credited regarding who said what about
running people over matters little (Callen is not cred
ited) By his conduct combined with his words, Callen
interfered with the handbilling for organizational pur
poses Where as here, the handbilling occurs in the open
just beyond the Company s front gate I do not believe
that a gathering of supervisors, without more, on Re
spondent s property near the site of the handbilling nec
essarily interferes with the handbilling Also since the
gathering had nothing to do with Callen s words and ac
tions (Callen was not part of the gathering since he stood
on the opposite side of the gate from the gathering) it is
in no way a part of Callen s unlawful conduct The wit
nesses testified that the individual supervisors in this
gathering did or said nothing In these circumstances
presence alone does not constitute interference Conse
quently, paragraph 13(a) of the amended complaint, as
described above will be dismissed
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(2) (6), and (7) of
the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 Respondent engaged in the following unfair labor
practices within the meaning of Section 8(a)(1) of the
Act by
(a) Interrogating its employees regarding union meet
rags
(b) Maintaining and enforcing a no solicitation or no
distribution rule selectively and disparately
(c) Interfering with handbilling for organizational pur
poses
(d) Keeping under surveillance a meeting during
which employees were engaged in union activities
(e) Threatening employees with unspecified reprisals in
order to discourage their participation in union activities
(f) Telling employees that it had no intention of ac
cepting the Union, and thereby informing the employees
that it would be futile for them to select the Union as
their collective bargaining representative
(g) Threatening employees by indicating that it would
use dishonest means to curb their union support
(h) Threatening employees that work would be trans
ferred away from the plant should they select the Union
as their collective bargaining representative
(i) Interrogating employees and creating the impres
sion of surveillance of their union activities
0) Threatening employees with discharge because of
their activities on behalf of the Union
4 Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act by
(a) Denying employee Michael McGhee a raise on
January 8, 1987
(b) Giving employee Debra Parks an evaluation in
which she was rated substandard in cooperation and
housekeeping
(c) Issuing written warnings to employees Debra Parks
on January 12, to Janie Gillespie on January 21, and to
David Browning on January 9 and 14, 1987
(d) Discharging employees David Browning on Janu
ary 30 and Larry Hall on February 2 1987
5 Except as specifically found, Respondent engaged in
no other unlawful conduct
6 The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices it will be directed to cease and desist
from engaging in such conduct and take affirmative
action , more fully described below designed to effectu
ate the policies of the Act
Respondent will be directed to offer David Browning
and Larry Hall reinstatement to their former positions
and to make them whole for any loss of earnings they
may have suffered by reason of the above described un
lawful actions by making payments to them of a sum of
money equal to that which they normally would have
earned had Respondent not engaged in the above de
scribed unlawful action , with backpay and with interest
as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987) 27 Respondent will be directed (a) to
27 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before January 1 1987 (the effective
Continued
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
preserve and make available to the Board, on request, all
payroll records, and reports, and all other records neces
sary and useful to determine the amount of backpay due
in compliance with this decision and Order, and (b) to
remove from the personnel files of David Browning,
Larry Hall, Debra Parks, and Janie Gillespie all docu
date of the amendment) shall be computed as in Flonda Steel Corp 231
NLRB 651 (1977)
ments related to those of Respondent's actions that were
determined above to be unlawful labor practices
Respondent will be directed to make whole Michael
McGhee for the Respondent's retaliatory denial of wage
increases by making payments to him of a sum of money
equal to that which he would have earned had Respond
ent not engaged in the above described unlawful action
with backpay and interest therein to be computed in the
manner set forth in the next preceding paragraph
[Recommended Order omitted from publication ]