B. E. & K., Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1980

252 N.L.R.B. 256 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. E. & K., Inc. and Local Union 1165, United
Brotherhood of Carpenters and Joiners of
America, AFLCIO. Cases 11-CA-8035, 11-
CA-8192, and 11-RC-4602
September 19, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On January 17, 1980, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. The General Counsel
filed cross-exceptions to certain portions of the Ad-
ministrative Law Judge's Decision, and a brief in
support thereof. The General Counsel also filed a
brief in support of that part of the Administrative
Law Judge's Decision with which he agreed. Re-
spondent filed a brief in answer to the General
Counsel's exceptions. In addition to the above-men-
tioned papers filed, Respondent filed a post-hearing
motion in which it moved for a partial dismissal of
the charges and allegations in the consolidated
complaint concerning Cases 11-CA-8035, 11-CA-
8192, and 11-RC-4602. The General Counsel filed
an opposition to Respondent's "Motion For Partial
Dismissal." Respondent filed a response to the
General Counsel's response to Respondent's motion
for partial dismissal.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.3
' Subsequent to the hearing on the consolidated complaint, Respondent
filed a "Motion for Partial Dismissal" of the consolidated complaint. The
Administrative Law Judge stated that, inasmuch as the Administrative
Law Judge's Decision was in the process of being issued, Respondent's
motion was denied without prejudice and that Respondent could renew
the motion. Respondent renewed said motion, to which the General
Counsel filed an opposition. Having been duly considered, Respondent's
motion is hereby denied as lacking in merit.
s Both Respondent and the General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge, findings
which were adverse to them respectively. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
s In resolving the issues raised by the challenged ballots in the repre-
sentation proceeding, the Administrative Law Judge states that Objection
I is sustained. However, elsewhere in his Decision it is clear that Objec-
tion I is overruled. This inadvertence is hereby corrected.
252 NLRB No. 36
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, B. E. & K.,
Inc., Riegelwood, North Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
We agree with the reinstatement and make-whole remedy recommend-
ed by the Administrative Law Judge regarding employees Richard and
Drew Todd and F. M. Anderson. We find, however, that Sec. 12 of the
Act, as referred to by the Administrative Law Judge at fn. 30, is inappli-
cable to the facts of this case.
While Member Penello agrees with his colleagues' adoption of the Ad-
ministrative Law Judge's recommendation that the election in Case I I-
RC-4602 should be set aside if a revised tally of ballots does not reveal
that the Petitioner has received a majority of the ballots cast, he does not
rely on Objection 5 where such conduct was not specifically alleged in a
timely filed written objection. See his dissenting opinion in Dayton Tire 4
Rubber Co., 234 NLRB 504 (1978).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT lay off or otherwise discrimi-
nate against employees in regard to hire or
tenure of employment, or any term or condi-
tion of employment, because of their union or
protected concerted activities.
WE WILL NOT lay off supervisors in order to
interfere with employees' organizational rights.
WE WILL NOT threaten employees with dis-
charge, denial of raises, loss of jobs, placement
on blacklists, or other reprisals because of their
union activities or protected concerted activi-
ties.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7
of the Act except to the extent that such rights
may be affected by lawful agreements in ac-
cordance with Section 8(a)(3) of the Act.
WE WILL offer to each Thomas E. Goff,
Terry Boring, R. L. Carter, James Eason,
Richard S. Todd, Drew G. Todd, Sr., Harry
W. Pridgen, William H. Robbins, F. M. An-
derson, and David L. Dutton immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights previously enjoyed,
256
B. E. & K., INC.
and WE WILL make him whole for any loss of
pay or other benefits suffered by reason of the
discrimination against him, plus interest.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
any labor organization, except to the extent pro-
vided by Section 8(a)(3) of the Act.
B. E. a K., INC.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Sections 10(b) and 9 of the National
Labor Relations Act, as amended, was heard pursuant to
due notice on May 29, 30, and 31, and June 1, 4, and 5,
1979, in Wilmington, North Carolina.
The charge in Case I -CA-8035 was filed on Decem-
ber 14, 1978. The first amended charge in Case I -CA-
8035 was filed on January 22, 1979. The charge in Case
11-CA-8192 was filed on March 1, 1979. The first
amended charge in Case I l-CA-8192 was filed on
March 14, 1979. The complaint in Case 11-CA-8035 in
this matter was issued on February 7, 1979. The order
consolidating cases and consolidated complaint in Cases
11-CA-8035 and 11-CA-8192 was issued on March 29,
1979.
The petition in Case I l-RC-4602 was filed on October
20, 1978. A hearing on the issues raised by such petition
was held on November 7, 1978. Thereafter, a Decision
and Direction of Election was issued in said case on De-
cember 5, 1978. Pursuant to such Decision and Direction
of Election, a secret-ballot election under the supervision
of the Regional Director for Region 11 was held on Jan-
uary 4, 1979, in the bargaining unit found appropriate.'
There were challenged ballots concerning such election
which were sufficient in number to affect the results of
the election.2
On January 10, 1979, the Union in Case I -RC-4602,
filed timely objections to conduct affecting the results of
the election. Thereafter, on April 27, 1979, the Regional
Director for Region 11 issued a Supplemental Decision,
Direction, and Order Consolidating Cases, whereby the
Regional Director resolved certain challenged ballots, di-
rected a hearing on certain other challenged ballots,
found that there were issues to be resolved concerning
the various objections and directed a hearing thereon,
and, since unfair labor practice complaints alleged essen-
tially the same issues as concerned in most of the objec-
tions, consolidated the representation case (l-RC-4602)
The unit found to be appropriate is:
All millwrights, millwright apprentices and helpers employed at Re-
spondent's Riegelwood, North Carolina, jobsite, excluding office
clerical employees, electricians, roofers, masons, laborers, iron-
workers, carpenters, field engineers, operating engineers, pipefitters,
guards and supervisors as defined in the Act.
a In said election, the tally of ballots reflects that there were 15 votes
cast for the Union, 20 votes cast against the Union, and 18 challenged
ballots.
and the unfair labor practice cases (I l-CA-8035 and 11-
CA-8192) for hearing.
The issues presented for resolution of the challenged
ballots involved in Case 11-RC-4602 concern the chal-
lenges to the ballots of William H. Robbins, Richard S.
Todd, Drew Todd, Sr., F. M. Anderson, R. L. Carter,
Harry W. Pridgen, Terry Boring, David L. Dutton,
Charles R. Hayes, William A. Gravitt, Thomas E. Goff,
Billy Johnson, James Westbrook, and L. Woodrow
Long.
As to the challenges to the ballots of William H. Rob-
bins, Richard S. Todd, Drew G. Todd, Sr., F. M. An-
derson, R. L. Carter, Harry W. Pridgen, Terry Boring,
and David Dutton, there is an issue as to whether such
employees were or were not discriminatorily laid off on
December 6, 1978, before the election held on January 4,
1979. As to the challenges to the ballots of William A.
Gravitt and Thomas E. Goff, the issues include both a
determination of whether they were supervisors within
the meaning of the Act, and, if not, whether they were
discharged or laid off on January 2, 1979, and December
6, 1978, respectively, in violation of Section 8(a)(3) and/
or (1) of the Act. As to the challenges to the ballots of
Charles R. Hayes, Billy Johnson, and James Westbrook,
the determinative issue is whether they were supervisors
within the meaning of the Act. As to the challenge to
the ballot of L. Woodrow Long, the issue is whether he
was a millwright expediter and, as such, enjoyed a com-
munity of interest with other employees in the appropri-
ate collective-bargaining unit so as to be included there-
in.
The unfair labor practice issues concern whether there
have been unlawful interrogation, threats, or discrimina-
tory discharges within the meaning of the Act. Occur-
ring between October 20, 1978, and January 4, 1979,
such conduct is also in issue as objectionable conduct to
the election held on January 4, 1979. The objection
issues also concern certain conduct on January 4, 1979,
relating to the alleged presence of supervisors around the
polls, the "congregating" of voters, and a question of Re-
spondent's attorney's remarks directed to certain individ-
uals presenting themselves as "voters."
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by the
General Counsel and Respondent and have been consid-
ered.
Upon the entire record in the case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT3
1. THE BUSINESS OF RESPONDENT
B. E. & K., Inc., herein called Respondent, is now,
and has been at all times material herein, a Delaware
corporation licensed to do business in the State of North
Carolina, where it is engaged as a general contractor in
the construction of a papermill at a construction site in
Riegelwood, North Carolina.
3 The facts herein are based upon the pleadings and admissions therein.
257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During a 12-month representative period, Respondent
received materials valued in excess of $50,000 for use at
its Riegelwood, North Carolina, project from points and
places directly outside the State of North Carolina. Re-
spondent, during the same 12-month period, performed
services valued in excess of $50,000 for customers locat-
ed outside the State of North Carolina.
As conceded by Respondent, and based upon the fore-
going, it is concluded and found that Respondent is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 1165, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, herein called the
Union, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
IIl. THE UNFAIR LABOR PRACTICES AND THE
CHALLENGES AND OBJECTIONS
A. Preliminary Issues; Supervisory Status4
At all times material herein, the following-named per-
sons occupied the positions set opposite their respective
names, and have been, and are now, agents of Respond-
ent at its Riegelwood, North Carolina, jobsite, and are
supervisors within the meaning of Section 2(11) of the
Act:
Larry Reinhardt-Project Superintendent
D. C. Pope-Assistant Millwright Superintendent
Jack Bell-Millwright Superintendent
Willie Hayes-General Foreman
Howard Tillotson-Personnel Manager
B. The Setting
Respondent, in mid-1978 and into early 1979, during
the critical time period for this proceeding, was one of
several general contractors working on the construction
or overhauling of facilities at the Federal Paperboard
Company's Riegelwood, North Carolina, papermill plant.
On such job, Respondent employed employees skilled in
various crafts. Total employment was 400 to 500 individ-
uals. Employees in several crafts attempted to organize
and to have representation by unions. Except for those
employees employed as millwrights, there is no conten-
tion that unfair labor practices have occurred.
Respondent commenced work on the Federal project
in July 1978. However, the first millwrights employed
for the project were employed in early August 1978. Ap-
parently, the first significant millwright work com-
' The facts are based on the pleadings and admissions therein and the
record as a whole. Respondent denies liability for the acts of Willie
Hayes and contends that Hayes was "an agent only on behalf of the
Union." There is no evidence to reveal that Hayes was the agent of the
Union with respect to the conduct contended to have been violative of
the Act as engaged in by him. Nor does the evidence reveal that, in en-
gaging in the conduct complained of, Hayes did other than communicate
what he knew was or construed to be company policy. Nor does the evi-
dence reveal circumstances that would have caused employees to believe
that Hayes' statements were mere personal opinions.
menced in early September 1978. At such time, Respond-
ent had two millwright crews. In October, Respondent
had increased its number of millwright crews to three; in
early November, the number of millwright crews was in-
creased to four; and on November 20, 1978, the number
of millwright crews reached five. On December 6, 1978,
Respondent laid off one of its millwright crews.
Union activity with respect to some of the millwright
employees commenced around mid-September 1978. On
October 20, 1978, a representation petition was filed con-
cerning the millwright employees. Thereafter, on No-
vember 7, 1978, a representation hearing concerning such
petition was held. Following this, around November 16,
1978, many millwright employees commenced wearing a
red dot union label on their hardhats at work.
There are issues as to whether Respondent engaged in
unlawful interrogation as to employees' union desires,
and made threats that interfered with employees' organi-
zational rights during the latter part of November and
early December 1978.
Respondent's supervisors had indicated to the mill-
wrights at the time of hiring that the work involved
would last for some time, and that there would be work,
including overtime, during a "shutdown."6 At the time
of the December 6, 1978, layoff of Goff's crew, there
had been no prior indication to the millwrights that there
would be a layoff. On the day prior to the December 6,
1978, layoff, the Decision and Direction of Election in
the representation case was issued by the Regional Di-
rector for Region 11.
There are issues as to whether there were acts viola-
tive of Section 8(a)(3) and (1) of the Act engaged in by
Respondent on or about the date of the representation
election held on January 4, 1979. There are also issues as
to whether other conduct occurred on January 4, 1979,
which constituted objectionable conduct to the election
held on that date. Further, there are issues as to whether
certain challenges to ballots in said election should be
sustained or overruled, and there are issues as to whether
certain discharges of employees after January 4, 1979,
were violative of Section 8(a)(3) and (1) of the Act. 6
C. The Unfair Labor Practices
1. Interrogation
The General Counsel alleges and Respondent denies
that Respondent, on various specified dates, interrogated
its employees concerning their union membership, de-
sires, and activities.
The issues concerning interrogation relate to the con-
duct of Jack Bell, Larry Reinhardt, and T. Michael
Goodrich on certain dates. Some of the alleged and con-
"Shutdown" apparently refers to the shutdown of a facility being
worked on. It appears that shutdown work involves the usage of over-
time in order to allow the facility to resume operations with as little loss
of operating time as possible.
I Some evidence was presented concerning notification of hirings at
other jobs, of renewed hirings at the Federal project, and of offers of
work elsewhere. Suffice it to say that none of this evidence constitutes
evidence of offers of reinstatement of the type that would toll backpay
due discriminatees. However as an evidentiary matter concerning the
total question of discrimination, such evidence warrants consideration.
258
B. E. & K., INC.
tended interrogation concerned the interrogation of Wil-
liam Gravitt by Bell in November 1978 and the interro-
gation of C. R. Hayes by Reinhardt in January 1979. As
later set forth herein, I find that William Gravitt and C.
R. Hayes are supervisors of Respondent within the
meaning of the Act. Interrogation of such supervisors by
Respondent concerning their or other union employees'
membership, desires, or activities does not constitute
conduct violative of Section 8(a)(l) of the Act. The alle-
gations of unlawful conduct in such regard will be rec-
ommended to be dismissed.
Evidence relating to other conduct of Bell relating to
interrogation of employees consists of stipulations as to
what employee Watts would have testified to if present-
ed as a witness and Bell's testimony relating to interroga-
tion of employees.
The General Counsel's complaint allegations relating
to the interrogation of Watts were amended to allege
that such interrogation occurred in mid-November and
early December 1978. Bell's testimony relating to inter-
rogation fixed such interrogation engaged in as occurring
several days before the election on January 4, 1979. The
issue of interrogation was fully litigated. Thus, the stipu-
lation as to Watts' testimony was to the effect that Watts
would testify that Bell questioned him as to how he was
going to vote. Bell specifically denied that he asked em-
ployees how they were going to vote, but testified that
he did question "members" as to how they felt. It is ob-
vious that Bell's admissions as to any interrogation has a
direct bearing on the credibility of his denial of other
specific interrogation. Whether alleged or not, such in-
terrogation constituted conduct of an objectionable
nature warranting the setting aside of the January 4,
1979, representation election. Whether alleged or not,
such interrogation was fully litigated and warrants a
finding of conduct violative of Section 8(a)(l) of the
Act. 7
The facts clearly reveal that Bell questioned a number
of employees several days before the election as to how
they felt about the Union. There is no evidence that
there existed a legitimate need or purpose for such inter-
rogation, that employees were advised of a legitimate
need or purpose for such interrogation, or that employ-
ees were given assurances of nonreprisals concerning
such interrogation. Accordingly, it is concluded and
found that Respondent, by Bell, violated Section 8(aX)(1)
of the Act by the interrogation of employees in early
January, prior to January 4, 1979, as to how they felt
about the Union. Such conduct also constituted objec-
tionable conduct warranting the setting aside of the Jan-
uary 4, 1979, representation election.
As to the specific question of interrogation of Watts in
mid-November or early December 1978, the stipulation
as to Watts' testimony was to the effect that Bell ques-
tioned him on several occasions as to how he was going
7 The General Counsel, at p. 10 of his brief, moves to amend his com-
plaint allegation to specifically allege interrogation by Bell in early Janu-
ary 1979. In view of the manner of litigation of the interrogation issue, I
find it unnecessary to grant such motion. The matter has been fully liti-
gated and warrants a finding. Were it necessary that the matter be for-
mally alleged, I would find it necessary to issue an Order To Show
Cause "Briefs" should not be used as a means of making "motions." See
Montgomery Ward d Co., Incorporated, 228 NLRB 750, 753 (1977).
to vote. Bell's testimony was to the effect that he specifi-
cally denied questioning any employee as to how the em-
ployees would vote. I give weight to the actual sworn
testimony of Bell and credit Bell's testimony to such
effect over the stipulated testimony of Watts. According-
ly, the allegation of interrogation in such regard is dis-
missed.
The evidence also clearly reveals that around Novem-
ber 29, 1979, Respondent's agent, T. Michael Goodrich,
met with a number of millwrights and helpers in small
group meetings. Goodrich's position with Respondent in-
volved responsibility for administration on the construc-
tion sites of the Company. Such included questions of
safety, personnel, legal, insurance, and fringe benefits.
The facts reveal that in general Goodrich presented
Respondent's arguments as to why the employees did not
need a union. A number of the General Counsel's wit-
nesses testified with respect to the meetings with Good-
rich and Pope. Goodrich and Pope also testified with re-
spect to such meetings. Goodrich's testimony in major
effect was a summary of what occurred in a general
manner. Pope's testimony was to the effect that he had
little recall of the specifics. I find the testimony of Rich-
ard Todd, Drew Todd, William Robbins, and Anderson
as to interrogation of employees by Goodrich at such
meetings more credible and complete than the testimony
of Goodrich or Pope. I credit the testimony of Richard
Todd, Drew Todd, and Robbins that Goodrich asked
employees why they felt they needed a union. There is
no evidence of a legitimate need or purpose for such in-
terrogation, no evidence that employees were advised of
a legitimate need or purpose for such interrogation, and
no evidence that employees were given assurances of
nonreprisals as to such interrogation. Accordingly, it is
concluded and found that Respondent, by Goodrich, en-
gaged in interrogation of employees as to their union be-
liefs in violation of Section 8(a)(l) of the Act.
Such conduct of interrogation of employees about
their union beliefs is not only violative of Section 8(aX)(
of the Act, but it also constitutes objectionable conduct
warranting the setting aside of the election held on Janu-
ary 4, 1979. It is so found and concluded.
2. Threats of loss of jobs
The General Counsel alleges and Respondent denies
that Respondent "threatened its employees with loss of
jobs if they selected the Union as their collective-bar-
gaining representative." The issues concern the conduct
of Pope on or around November 30, 1978, and of Rein-
hardt on or around January 3, 1979.8
Anderson and Boring testified about one of the meet-
ings held by Goodrich and Assistant Millwright Superin-
tendent Pope with millwright helpers for discussion of
the Company's position concerning the Union. Anderson
and Boring credibly testified that the employees com-
plained about wages and that Pope responded by telling
the employees that, if they did not like the way things
8 The complaint alleged conduct of threats of loss of jobs by Bell in
late December 1978. or early January 1979. No evidence was presented
with respect to such allegation. Accordingly, such allegation will be rec-
ommended to be dismissed.
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were being run, they did not have to stay, and that "it
could be a lot worse," they could be getting nothing.
Such conduct by Pope constitutes an implied threat of
loss of jobs if the employees selected a union as their
representative. Accordingly, it is concluded and found
that Respondent, by such conduct, violated Section
8(aXI) of the Act. Such conduct also constituted objec-
tionable conduct warranting the setting aside of the rep-
resentation election held on January 4, 1979. It is so
found and concluded.
Richard and Drew Todd also credibly testified to re-
marks by Pope made at a meeting Goodrich and Pope
had with the millwrights around November 29 or 30,
1978. What occurred is revealed by the following cred-
ited excerpts from Drew Todd's testimony:
Q. Do you recall whether any of the millwrights
spoke in the course of that meeting?
A. Yes, sir, several of us did in the questions and
answers.
Q. Do you recall anyone else speaking during the
meeting?
A. Yes, sir, David Pope.
Q. How did that come about?
A. Richard Todd asked them and said that one
reason that he asked, that he felt like one reason
that he wanted the union was that he wanted to
better himself with better pay; he felt that our State
was one of the lowest paid States in the nation; and
David Pope said to the effect that, if we didn't like
the pay scale, we could move out of the State.
Considering the above facts relating to Pope's state-
ments to Richard Todd, I am persuaded that such con-
duct by Pope constituted conduct violative of Section
8(a)(XI) of the Act and objectionable conduct by Re-
spondent warranting the setting aside of the representa-
tion election held on January 4, 1979. It is so concluded
and found.
The facts are clear that Project Superintendent Rein-
hardt had a meeting with millwrights on January 3, 1979,
spoke concerning the upcoming NLRB representation
election, and was asked questions concerning the elec-
tion. Reinhardt then made a statement to the employees
that there were some companies that had a blacklist upon
which they put names of employees who were affiliated
with or voted for the Union. An employee asked Rein-
hardt if Respondent had a blacklist. Reinhardt replied
that he did not say that; that he had said other compa-
nies had such lists and that if, employees affiliated with
the Union or voted for the Union, their names were put
on such lists and the employees would not then be able
to get a job with such companies.9
* Respondent, in its brief, appears to contend that the blacklist issue
was raised initially by a question from employees, and that Reinhardt's
remarks about a blacklist was in response to such questions. Reinhardt's
testimony was presented in a fragmented fashion. The testimony of Free-
man and Tompkins as to the blacklist appeared more direct, complete,
and reliable. A careful examination of such testimony reveals that em-
ployee questions as to a blacklist arose after Reinhardt had introduced
the idea of a blacklist into his talk. I credit the testimony of Freeman and
Tompkins over Reinhardt's where in dispute.
Considering the foregoing facts, I conclude and find
that Respondent, by Reinhardt, on January 3, 1979,
threatened employees with loss of jobs if they selected a
union. Thus, Reinhardt introduced the idea of a blacklist
into his talk, and explained the effect of a blacklist to the
employees. Assuming that employees would believe
Reinhardt's disavowal that Respondent kept a blacklist, it
is clear that the employees would believe that their op-
portunity for jobs with some other companies would be
adversely affected by affiliation with the Union or if they
voted the Union in at Respondent. One must consider
the effect of a disavowal that Respondent would keep a
blacklist in the context of the injection of the idea of a
blacklist into Reinhardt's remarks to employees. Once
the idea of blacklist has been injected by a responsible
official, the reasonable and logical effect of such remarks
relating to blacklists is the fear of loss of job opportunity
with Respondent and with other employers. The most
logical and reasonable inference as to the effect of a
remark of disavowal that Respondent would keep a
blacklist is that employees would consider it as a "nod"
and "wink" and not intended as a true disavowal. Con-
sidering this, I conclude and find that Respondent, by
Reinhardt, threatened employees with loss of job oppor-
tunity if they voted the Union in on January 4, 1979.
Such conduct is violative of Section 8(a)(1) of the Act. It
is so concluded and found. Such conduct also constitutes
objectionable conduct warranting the setting aside of the
representation election held on January 4, 1979.
3. Threat of denial of a raise
The General Counsel alleges and Respondent denies
that Respondent, by Jack Bell on January 4, 1979, threat-
ened to deny its employees a raise if the Union were se-
lected as their collective-bargaining representative.
Before Christmas in 1978, millwright helper Chadwick
asked Millwright Superintendent Bell for a raise. Bell
told Chadwick that he would probably get a raise the
first of the year after the "shutdown." After Christmas,
Bell told Chadwick that he would give him a raise in the
next week or two. On January 4, 1979, the morning
before the representation election to be held in the after-
noon, Bell showed Chadwick some papers about his raise
that he, Bell, was turning in. What occurred then is re-
vealed by the following excerpts from Bell's credited tes-
timony:
Q. What did you tell him when you showed it to
him?
A. He asked me could I show him when I put it
in, and I had it down there, and I showed it to him;
and I told him that I was putting it in for him, but if
it didn't go through; that if it went through during
this election, that if it went the other way, all raises
would be frozen, and I couldn't answer his question
and I couldn't tell him whether he would or
wouldn't.
Considering the foregoing, it is clear and I find and
conclude that Respondent, by Bell, on January 4, 1979,
threatened an employee that a raise would be denied if
the Union were selected as the employees' collective-bar-
260
B. E. & K., INC.
gaining representative. Such conduct is violative of Sec-
tion 8(a)(1) of the Act. Such conduct, occurring before
the January 4, 1979, representation election also consti-
tutes objectionable conduct warranting the setting aside
of said election.
4. Threat of futility
The General Counsel alleges and Respondent denies
that Respondent, by Respondent's agent on November
29, 1978, "advised employees that selecting the Union as
their collective-bargaining representative would be
futile."
As has been indicated, Respondent's agent Goodrich
and Assistant Millwright Superintendent Pope met with
some millwrights and helpers at different meetings on or
about November 29, 1979. At such meetings, Goodrich
presented Respondent's viewpoint on the question of
unionization. Richard Todd, Drew Todd, and Robbins
testified to the effect that Goodrich, at the meeting with
the millwrights, told the employees that Respondent
would not negotiate as to any wage increases. Anderson
testified that at Goodrich and Pope's meetings with mill-
wright helpers that Goodrich told the helpers that, as to
raises that the Union had promised, this was not neces-
sarily so. Pope's testimony revealed that he had little
recall as to what was said at the meetings with the mill-
wrights and millwright helpers. Goodrich testified to the
effect that at such meetings he told employees that, if the
Union won the election, Respondent would have to bar-
gain with the Union, and that any raise would by no
means be automatic.
Considering the testimony of all the witnesses, I am
persuaded that the testimony of Richard Todd, Drew
Todd, and Robbins that Goodrich had stated that Re-
spondent would not negotiate as to wage increases con-
stituted their conclusion of what he had said rather than
an accurate recollection of what was said. I credit Goo-
drich's denial that he had threatened that Respondent
would not negotiate with the Union. Accordingly, the al-
legations of conduct violative of Section 8 (a)(1) of the
Act by threats of futility in selection of a bargaining
agent will be recommended to be dismissed.
5. Threats of discharge for distribution of union
stickers
The General Counsel alleges and Respondent denies
that Respondent, by Willie Hayes in late November and
on December 3, 1978, threatened employees with dis-
charge if they distributed union stickers.
Respondent has a rule against the distribution of litera-
ture in working areas during working time. Apparently,
in late November 1978, after some employees had com-
'o The withholding of a raise because of union involvement, pendency
of election proceedings, or establishment of the Union as a bargaining
representative constitutes conduct violative of Sec. 8(aXl) of the Act.
Under such circumstances Respondent is required to handle planned
raises in the same manner that such raises would have been handled in
the absence of union involvement or election proceedings. The facts
reveal that such a raise for Chadwick (reclassification and rate change)
has not been effectuated. Such failure to grant a raise has not been al-
leged to have been violative of the Act. In the absence of allegations
thereto, findings of violative conduct thereto are not made.
menced wearing union stickers in the form of red dot
decals on their hardhats, Project Superintendent Rein-
hardt and Millwright Superintendent Bell spoke to As-
sistant Millwright Pope about the distribution of union
literature or the red dots. Pope in turn spoke to General
Foreman Willie Hayes. '
In late November 1978, General Foreman Hayes told
employee Drew Todd in effect that Millwright Superin-
tendent Pope had informed him that Richard Todd was
passing out union literataure, the red dots, and that it
was excused this time but that, if it occurred again, he
would be fired.
Around the same time, either shortly before or shortly
afterwards, General Foreman Hayes spoke to a number
of employees, including Drew Todd, Monty Anderson,
and William Robbins. Hayes stated that Pope had said he
did not want to see any more stickers on the job, that it
showed belligerency, and that anyone passing out the
stickers would be fired.
The facts are clear that, as a general foreman, Willie
Hayes was a supervisor and agent of Respondent. Re-
spondent denies liability for the acts of Willie Hayes on
the basis of a contention that Willie Hayes was acting as
an agent for the Union. Willie Hayes admittedly is a
union member and was sympathetic to the union cause.
The facts, however, reveal that Hayes in his statements
was relaying instructions from Pope. There is nothing in
the record to reveal that Pope was acting on his own or
pursuant to a desire to entrap Respondent in a violation
of the Act. The statements by Hayes, not qualified as to
the time or place of the restriction on the right to distrib-
ute union literature, clearly constitutes threats violative
of Section 8(a)(1) of the Act. Even if Hayes' statements
were a misrepresentation of Pope's instructions, the facts
clearly reveal that Hayes was not trying to entrap Re-
spondent into a violation of the Act. The facts also clear-
ly reveal that the statements by Hayes were not made in
such a manner that employees would have reasonably
believed the same to be mere personal opinion of one
sympathetic to their union cause. Accordingly, it is con-
cluded and found that Respondent, by Willie Hayes'
statements concerning the liability of discharge for distri-
bution of union literature, engaged in conduct violative
of Section 8(a)(l) of the Act. Such conduct also consti-
tutes objectionable conduct warranting the setting aside
of the January 4, 1979, representation election.
6. Threats concerning the wearing union stickers
The General Counsel alleges and Respondent denies
that Respondent, by Willie Hayes in late November 1978
and by Jack Bell in late November and early December
1978, advised employees not to wear union stickers.
'' Pope testified to the effect that he felt sure that he told Hayes to tell
employees that they would be disciplined or discharged if they distribut-
ed union literature in working areas on working time. Considering the
clear evidence that Hayes' instructions or remarks to employees were not
qualified as to working time or area, I am persuaded that the instructions
to Hayes were not so qualified. Had the instructions been qualified, I
would find no reason to believe that Hayes would not have qualified his
remarks to employees. There is no evidence to reveal that Hayes, by re-
laying instructions, was trying to entrap Respondent into a violation of
the Act.
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts relating to the issue of Hayes' conduct in
late November 1978, have been set forth in subsection 5
above. A finding that Hayes, by such conduct, threat-
ened employees with discharge for distribution has been
made. In such context, Hayes' statement to Drew Todd,
Anderson, and Robbins that the wearing of union stick-
ers revealed belligerency independently reveals a viola-
tion of Section 8(aXl) of the Act. It is so concluded and
found. Such conduct constitutes objectionable conduct
warranting the setting aside of the representation election
held on January 4, 1979.
The evidence relating to Bell's conduct concerns state-
ments made by Bell to Gravitt. As later set forth herein,
Gravitt is found to be a supervisor within the meaning of
the Act. Such statements by Bell to a supervisor not to
wear union stickers does not constitute conduct violative
of the Act. Accordingly, allegations of unlawful conduct
in such regard will be recommended to be dismissed.
7. The December 6, 1978, layoffs
On December 6, 1978, Respondent laid off Thomas E.
Goff and the members of his crew. The General Counsel
contends that the layoffs of such employees were discri-
minatorily motivated in violation of Section 8(a)(3) and
(I) of the Act. Respondent contends that the layoffs
were based upon economic considerations.
As has been indicated, Respondent's millwright work
at the Riegelwood project commenced with the hiring of
millwrights in August 1978. Respondent had two mill-
wright crews in September and three crews in October
1978. On November 6, 1978, Respondent increased its
millwright crews by the creation of a millwright crew to
be headed by Thomas E. Goff. Goff, prior to such time,
had been employed as a journeyman. 2
As has been indicated, union activity among the mill-
wrights commenced in mid-September 1978. Employees
Richard Todd and Billy Robbins were active at such
time in getting fellow millwrights to sign union cards.
Prior to November 16, 1978, Richard Todd and Monty
Anderson were on C. R. Hayes' millwright crew.
Around such time, C. R. Hayes' crew was scheduled to
work in a place called the bleach plant. Because of the
nature of the work and the possibility of chlorine leaks,
employees were required to use masks. Because of this
and the fact that Richard Todd and Anderson had
beards, Richard Todd and Anderson were transferred to
Billy Johnson's millwright crew. As of November 16,
1978, Drew Todd and William Robbins were also em-
ployed on Johnson's millwright crew.
At some point of time after November 16 and prior to
November 21, 1978, some of Respondent's millwright
employees commenced wearing red dot union stickers on
their hardhats. Goff and several of the members of his
crew were wearing red dots as of November 21, 1978.'3
On November 20 and 21, 1978, Respondent created a
new millwright crew to be headed by Foremen West-
Goff was initially employed as a journeyman millwright on Septem-
ber 5, 1978.
Is I have considered Goff's testimony and the testimony of all wit-
nesses concerning the red dots. The evidence is not sufficient to establish
that all of the employees on Goff's crew, except the ones transferred on
November 21, 1978, were wearing "red dots."
brook. Prior to such time, Westbrook had worked as a
journeyman millwright."4 On November 20, 1978, expe-
diter Long and millwrights Kelly and Ayres were trans-
ferred to Westbrook's crew from Gravitt's crew. On No-
vember 21, 1978, millwrights Hogan, Steedley, and
Grimes, and helper Rampy were transferred to West-
brook's crew from Goff's crew. None of the employees
who were transferred from Goff's crew to Westbrook's
crew had been wearing red dots on their hardhats. Two
of the employees transferred from Goff's crew, Rampy
and Grimes, were kin to members of Respondent's super-
visory staff.
On November 29, 1978, employees Richard Todd,
Drew Todd, Robbins, and Anderson were transferred
from Johnson's crew to Goff's crew. All of the employ-
ees transferred from Johnson's crew to Goff's crew were
employees who had been wearing red dot union stickers
on their hardhats.
As has been indicated, Respondent's agents, Goodrich
and Assistant Millwright Superintendent Pope, met with
some but not all of the millwright crews on November
29 and 30, 1978. Such meetings constituted in effect an
inquiry into employee beliefs as to why they wanted a
union. Around this time, Pope transmitted through lower
echelon supervision to the Todds the fact that Respond-
ent did not approve of the distribution or wearing of the
red dots.
The aforementioned facts constitute an integral part of
the setting leading to the December 6, 1978, layoff of
Goff's crew. Part of the setting, however, involves an
understanding of the work involved in the installation of
a Flakt pulp dryer, and Respondent's knowledge of the
progress of the work and problems. Thus, the facts
reveal that part of Respondent's Riegelwood project
concerned work on the installation of a Flakt pulp dryer.
Originally, it was expected that such work would occur
around December 1, 1978. Thus, as of October 30, 1978,
such work was expected to commence around December
1, 1978. The facts are clear that Respondent, as of Octo-
ber 30, 1978, knew that Flakt, Inc., desired that the foun-
dation for the Flakt pulp dryer be completed before
erection work on it began as revealed by the following
excerpts of minutes of the "Weekly Contractors' Coordi-
nation Meeting" of October 30, 1978:'5
SIMECO stated that in a recent meeting with Mr.
Karl-Erik Gustafsson of Flakt, Mr. Gustafsson had
stated that the entire dryer foundation must be com-
plete before erection work can begin. SIMECO
stated that since the dryer foundation will not be
complete until the end of November, the erector
from Flakt will not be on the jobsite until around
the first of December. Mr. Gustafsson would like to
start bringing the damaged crates to the jobsite
around the middle of November in order that the
equipment can be uncrated and the extent of the
damage analyzed.
t' Westbrook was initially employed as a journeyman millwright on
October 30, 1978.
'a It is noted that Respondent's officials were present at such meeting.
262
B. E. & K., INC.
On December 4, 1978, Respondent was advised at the
weekly contractors meeting that the Flakt pulp dryer in-
stallation would be delayed until January 1979. Follow-
ing this, on December 6, 1978, Respondent laid off Goff
and those members of his crew who were working on
that day. Thus, Foreman Goff, helpers Boring, Carter,
Eason, and Anderson, and millwrights Richard Todd,
Drew Todd, Pridgen, and Robbins were laid off. Mill-
wright Sarvis, who had been working on Goff's crew
but who did not work on December 6, 1978, was laid
off. Dutton, who had worked on Goff's crew in the past
but who for a number of days had been carried on other
crew payroll sheets, was also laid off. It is clear, howev-
er, that Respondent considered Dutton part of Goff's
crew. Goff and all of the employees on his crew had
been wearing union stickers on their hardhats.
On December 6, 1978, Project Superintendent Rein-
hardt told Goff and the crew members in effect that
there would be rehirings and that they would be the first
rehired.
The General Counsel contends in effect that the No-
vember 21 and 29 transfers from and to Goffs crew
were done in such a way as to set up a discriminatory
layoff of Goffs crew on December 6, 1978. Respondent
contends that the layoff of Goff's crew on December 6,
1978, was economically motivated by the "unexpected"
awareness of a need to delay work on the Flakt pulp
dryer. Considering the facts, I am persuaded that the
facts preponderate for a finding that Respondent, know-
ing of the pending problem concerning the installation of
the Flakt pulp dryer on November 21 and 29, attempted
to load Goffs crew with union supporters so as to be
able to lay them off on an economic pretext.
Respondent contends, and presented evidence for the
purpose of establishing, that Respondent's decision to lay
off Goffs crew was because "unexpectedly" there arose
a need to curtail work because of the delay concerning
the installation of the Flakt pulp dryer. Much evidence
was presented concerning the work, its status, and its
scheduling. It suffices to say that such is persuasive evi-
dence that Respondent would have been aware in early
November, mid-November, and at all times of its plans
and the status of the work.' 6 Further, I find that the
facts reveal Respondent's awareness of a potential delay
concerning the installation of the Flakt pulp dryer and
whether or not a crew was really needed on November
20, 1978. This being so, the facts reveal that Respondent
knew on November 20 that there was no real need to
create a new millwright crew headed by Westbrook. Re-
spondent contends that Westbrook and his crew were re-
tained on December 6 because Westbrook had worked in
the past for Respondent. I note, however, that West-
brook was employed by Respondent at the time when
Goff was selected to head a new millwright crew and
when Westbrook continued as a journeyman millwright.
'l Considering all of the evidence, the coordinating meetings between
Respondent and other contractors, and the minutes of such meetings. I
discredit Reinhardt's testimony to the effect that Respondent believed
until December 4, 1978, that work could commence on the installation of
the Flakt pulp dryer even if the foundation was not 100 percent com-
plete, and initially ascertained on December 4, 1978, the need for a
layoff.
Considering the sum of evidence revealing Respond-
ent's hostility toward the Union and the wearing of
union stickers, the facts reveal that Respondent created a
new crew so as to be able to transfer employees from
and to Goffs crews so as to rid itself of some known
union adherents by the elimination of Goffs crew. Such
conduct reveals that the layoff of Goff on December 6,
1978, was violative of Section 8(a)(1) of the Act, and
that the layoff of Goff's crew on December 6, 1978, was
violative of Section 8(a)(3) and () of the Act.'
8. The discharge of Gravitt on January 2, 1979
The General Counsel alleges and Respondent denies
that Respondent discharged William A. Gravitt on Janu-
ary 2, 1979, in violation of Section 8(a)(3) and (1) of the
Act.
The facts relating to Gravitt's status reveal, as later set
forth in the discussion concerning challenged ballots,
that Gravitt was a supervisor within the meaning of the
Act. The facts, as credited, reveal that Gravitt was dis-
charged on January 2, 1979, on the pretext that he had
been granted leave for 1 day but was absent for more
days than he had been granted time off.' 8I would find
that Gravitt, a union adherent, was discriminatorily dis-
charged because of his union activity were he not a su-
pervisor within the meaning of the Act. Gravitt, as a su-
pervisor, does not come within the protective ambit of
Section 8(a)(3) of the Act. Nor do the facts concerning
Gravitt's discharge reveal that such discharge constituted
interference with and restraint and coercion of employ-
ees within the meaning of Section 8(a)(l) of the Act. Ac-
cordingly, the allegation that Gravitt was discharged in
violation of Section 8(a)(3) and (1) of the Act will be
recommended to be dismissed.
9. The discharge of Charles R. Hayes on January 8,
1979
The General Counsel alleges and Respondent denies
that Respondent discriminatorily discharged Charles R.
Hayes on January 8, 1979, in violation of Section 8(a)(3)
and (1) of the Act.
The facts relating to Charles R. Hayes' status reveal,
as later set forth in the discussion concerning challenged
ballots, that Charles R. Hayes was a supervisor within
the meaning of the Act. The credited facts clearly reveal
that Charles R. Hayes was discharged on January 8,
1979, because of his union activity or beliefs. I would
find that Charles R. Hayes, a union adherent, was discri-
minatorily discharged because of his union activity or be-
liefs were he not a supervisor within the meaning of the
17 Although Sarvis was a member of Goffs crew, neither the charge
nor the complaint avers his layoff to be violative of the Act. Nor does
the General Counsel contend that Sarvis' layoff is presented as an issue. I
note that in all findings I have considered all evidence. Thus, I have con-
sidered the various offers of jobs to the discriminatees. Such offers are
consistent with a design to rid Respondent of union adherents at the time
of a pending election. Such offers do not comport to be bona ide "rein-
statement offers." The employment of such discriminatees in January and
the wages paid at such time naturally count as offsetting earnings for
compliance purposes.
'' I credit Gravitt's testimony over that of Bel's and Futrell's as to the
details concerning the granting of time off to Gravitt.
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. Charles R. Hayes, as a supervisor, does not come
within the protective ambit of Section 8(a)(3) of the Act.
Nor do the facts concerning Charles R. Hayes' discharge
reveal that such discharge constituted interference with,
restraint, and coercion of employees within the meaning
of Section 8(aX)(1) of the Act. Accordingly, the allegation
that Charles R. Hayes was discharged in violation of
Section 8(a)(3) and (1) of the Act will be recommended
to be dismissed.
10. The Discharge of Cartrette February 26, 1979
Respondent discharged William C. Cartrette on Febru-
ary 26, 1979, assertedly becase he used Federal Paper
Mill vending canteen facilities contrary to written and
oral instructions. The issue is whether the discharge was
because as asserted or because of discriminatory reasons
violative of Section 8(a)(3) and (1) of the Act.
Respondent's work rules contain the following provi-
sions relating to the use of facilities of enterprises for
whom Respondent is performing work:
BE&K employees are not allowed to use the mill
facilities such as rest rooms, vending machines,
drinking fountains, lunchrooms, etc. and are not
permitted in any plant area other than where their
services are required.
William C. Cartrette was initially employed by Re-
spondent on September 27, 1978, and worked thereafter
until his discharge on February 26, 1979. At the time
that Cartrette was hired he was told not to use Federal
Paper Mill vending machines. There appears to be some
question as to whether there were any vending machines
set aside specifically for Respondent's employees' use at
the time when Cartrette was initially hired. In any event,
it appears that Respondent's employees used Federal
Paper Mill vending machines not specifically designated
for use by them until around the middle of February
1979. There appears to have been no problem as to such
usage as far as Respondent's supervision or Federal
Paper Mill was concerned until around the middle of
February. The basic reason for Respondent's rule prohib-
iting the use of facilities of the enterprise for which Re-
spondent is performing work appears to be to avoid in-
terference with the working of such enterprise. Because
some of Respondent's work involved long hours, con-
struction of new facilities, and repair of facilities during
time of shutdown, it appears that the need for Respond-
ent's rule was not great until around mid-February 1979.
Around mid-February 1979, Federal Paper Mill had
complained to Respondent concerning the use of its
vending facilities by Respondent's personnel. Respond-
ent, in mid-February 1979, instructed its foremen to in-
struct the crews, and the foremen instructed the various
crews, not to use Federal Paper Mill facilities. At such
time, it is clear that there were vending facilities at desig-
ne.ted places for use by Respondent's personnel. Coffee
and candy, however, were not available at such designat-
ed places.
Foreman Bill Johnson, in mid-February 1979, instruct-
ed his crew not to use the Federal Paper Mill canteens.
On Johnson's crew were employees William C. Car-
trette, Robert Cartrette, and Bill Prince. Around this
time, many of the employees who had been wearing red
dot union stickers on their hardhats had ceased wearing
such stickers.' 9 Bill Prince, a union official, and William
C. Cartrette were the only members of Johnson's crew
still wearing red dots on their hardhats.
Later on the same day that Johnson had instructed his
crew not to use Federal Paper Mill canteen facilities,
Prince spoke to Superintendent Bell about the problem
as is revealed by the following credited excerpts from
Prince's testimony: 20
I asked him why we couldn't use the machine
there any more, the Paper Machines any more, and
he said, "Well, he had told Bill Johnson to tell us."
I said, "We are losing money in there, and half of
the time you can't get what you go after."
He said, "If you would use the machine during
breaktime, get in and out, and not abuse it, it would
be okay."
Apparently, a week after Johnson had instructed his
crew not to use the Federal Paper Mill canteen facilities,
Johnson repeated such instructions to his crew. Prince
told Johnson of his discussion with Bell concerning the
use of such facilities, and indicated that Bell had said it
would be okay to use such canteen facilities during lunch
and breaktime if employees got in and out quickly and
did not abuse the use of such facilities. Johnson indicated
that he would check with Bell about the matter. As of
February 26, 1979, Johnson had not indicated to the em-
ployees that he had checked with Bell or that his instruc-
tions were changed.
Apparently, around the time that Johnson had given
instructions to his crew not to use Federal Paper Mill
canteen facilities, Respondent posted the following notice
in some of the Federal Paper Mill canteen facilities:
NOTICE
THE CANTEEN AREA OF FEDERAL PAPER BOARD
MAINTENANCE SHOP IS OFF LIMITS TO BE&K EM-
PLOYEES.
19 The representation election involved in this proceeding was held on
January 4, 1979. The validity and results of said election were still pend-
ing subject to challenges and objections.
so After careful consideration of all of the evidence, I am persuaded
and conclude and find that Bell merely explained the reason for the
instructions and did not authorize future violations of the instructions.
This determination has been made difficult by the failure of Respondent
to cross-examine Prince and Robert Carrette concerning Bell's conversa-
tion with Prince and by the failure to present Bell as a witness on such
point even though Bell testified on other matters. Prince's other testimo-
ny reveals that he either construed Bell's remarks as authorizing a viola-
tion of such instructions or at least as furnishing a rationalization that se-
rious discipline should not be given for violation of the instructions. It is
clear that Robert Cartrette's testimony revealed a construction of Bell's
remarks as amounting to authorization to violate the instructions. Howev-
er, William C. Cartrette's testimony as to his statements to Pope after his
discharge, to the effect that he knew he was not authorized to be in the
canteen, and the continuation of instructions not to use the canteen and
the posting of written notice relating thereto are persuasive evidence that
Bell's remarks were in effect an explanation and not an authorization.
264
B. E. & K., INC.
ANYONE CAUGHT IN THIS AREA IS SUBJECT TO TER-
MINATION.
L. N. REINHARDT
On February 26, 1979, William C. Cartrette, during his
9 a.m. break period, went to a Federal Paper Mill ma-
chine shop canteen. On the door of such canteen was
posted the above referred to notice that the facilities
were off limits for Respondent's personnel.2 t Cartrette
went into the canteen and purchased a cup of coffee and
a cracker.
Assistant Superintendent Pope had seen Cartrette
while he was on his way to the canteen. 2 2 Pope fol-
lowed Cartrette to the canteen. While Pope was in the
canteen, Cartrette spoke to Pope.
Although Prince and Robert Cartrette were not with
William C. Cartrette, they were in the canteen at the
same time that he was. There is no evidence that Assist-
ant Millwright Superintendent Pope saw Prince and
Robert Cartrette in the Federal Paper Mill canteen.
What occurred later is revealed by the following cred-
ited excerpts from William C. Cartrette's testimony:2 3
A. Bill Johnson come to me about 9:30 and told
me that I had been fired; and the reason was for
being in the cafeteria; and that there was nothing
that he could do about it, and to get my tools, and I
think that he left to go get a truck.
Q. Do you recall anything else that Mr. Pope
said at that time?
A. Mr. Pope came and wanted to know why I
was still on the job.
Q. No, I am sorry, excuse me, strike the question.
Do you recall anything else that Mr. Johnson said
at that time?
A. Mr. Johnson said, he told me to get my tools,
and he said that he couldn't do anything about it,
and that was all.
Q. You don't recall him saying anything else?
A. He told me that there was nothing that he
could do about my being fired.
Q. Do you recall him saying anything else at that
time?
A. No, not that I recall.
Q. Do you recall his mentioning any other per-
son's name?
A. I don't recall, other than David Pope's; he
mentioned David's name, that David had fired me;
and that he could do nothing about that, and that is
the only thing that I recall his saying.
Q. He said that "David had fired you?"
A. That's right.
" There is a dispute as to the wording of the notice. I credit Rein-
hardt's testimony as to the notice and find the facts as set forth.
" Prior to these events, Pope had caused an employee named Chad-
wick to be warned when Pope believed he had used Federal Paper Mill
vending facilities.
's There is a dispute as to whether William C. Cartrette of Pope
swung first and as to what William C. Cartrette said. I have considered
all of the testimony and evidence and find William C. Cartrette's testimo-
ny the most credible. I am persuaded that Pope "misheard" what Car-
trette said, believed that Cartrette had cursed him, and responded with a
swing at Cartrette.
Q. And that he could do nothing about it?
A. That's right.
Q. What happened next?
A. I went to get my tools to have them checked
out, and ; he went to get the truck to get my tools
to have them checked out, and I was waiting on
him until I could get my tools together.
Q. And then what happened?
A. And then David came by and asked me what
I was still doing on the job; and he told me that as
of 10:00 o'clock that my time had started or
stopped; and that I should have been done off of
the job.
Q. Did you reply?
A. I told him about the machine that had been
taking my money, and he asked me if I knew that I
wasn't supposed to be in the canteen, and then that
was the first time that he had said anything to me
about being over there; and I told him "yes, that I
knew it," and I told him that I thought that he
"was one of the sorriest superintendents that I had
ever worked for;" and he replied back, "the same to
you, mother fucker;" and he made a swing-like, I
blocked him; and I hit him.
The General Counsel contends in effect that Respond-
ent discriminatorily discharged Cartrette because of his
union activity of continuing to wear a union sticker. Re-
spondent contends that the discharge of Cartrette was
not discriminatorily motivated; that Cartrette was dis-
charged because he violated instructions concerning stay-
ing out of the Federal Paper Mill canteen. Considering
all of the facts, I am persuaded and conclude and find
that the facts are insufficient to reveal that the discharge
of Cartrette was discriminatorily motivated. The overall
facts reveal that Respondent had a problem concerning
its employees' usage of Federal Paper Mill's canteen
facilities in and around February 1979, that instructions
had been given and repeated to the employees not to use
such facilities, and that Respondent had posted a notice
in an attempt to prevent usage of such facilities by its
employees.2 4 Under such circumstances, the facts reveal
that Respondent discharged Cartrette for cause and not
for discriminatory reasons. The complaint allegation of
discriminatory discharge of Cartrette will be recom-
mended to be dismissed.
D. The Challenged Ballots
Certain ballots cast in the representation election held
on January 4, 1979, in Case I -RC-4602 were chal-
lenged. Of such challenged ballots, the challenges to the
ballots of William H. Robbins, Richard S. Todd, Drew
Todd, F. M. Anderson, R. L. Carter, Harry W. Pridgen,
Terry Boring, David Dutton, Charles R. Hayes, William
A. Gravitt, Tom Goff, Billy Johnson, James Westbrook,
and L. Woodrow Long are presented for resolution in
this proceeding.
24 have considered Respondent's warning to Chadwick and its dis-
charge of Cartrette for essentially the same violation of rules. The overall
circumstances. the repeated instructions, and the posted notice reveal
facts negating evidence of discrimination.
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The resolution of the challenges to the ballots of
Charles R. Hayes, William A. Gravitt, Tom Goff, Billy
Johnson, and James Westbrook requires a determination
as to whether such individuals are supervisors within the
meaning of the Act. Although the extent of the authority
of Hayes, Gravitt, Goff, Johnson, and Westbrook is in
dispute, the facts are clear that such individuals are des-
ignated as foremen, wear white hardhats as compared to
the wearing of blue hardhats by rank-and-file employees,
keep time records of employees on their crews, do not
work with their tools, earn 75 cents per hour above the
rate of millwrights, and do not have authority to hire
and fire, but can allow crew members to have "early
outs" from work. The facts are clear that each of these
foremen have the same authority. There is some dispute
as to the extent of the foremen's authority regarding rec-
ommendations for hiring, firing, wage increases, and dis-
cipline. Such dispute does not have to be resolved since
the evidence relating to authority to direct work and to
assign work reveals such individuals to be supervisors
within the meaning of the Act.
The credited testimony of Goff and C. R. Hayes clear-
ly reveals that the crew foreman is told generally the
kind of work to be done, that he selects the individual
crew employee to assign to such work, and that he di-
rects the work of the crew. The overall facts and the
credited testimony of Goff and Hayes reveal, and I con-
clude and find, that the foreman's selection for assign-
ment of crew members and direction of work are per-
formed in a nonroutine manner. The only exception to
such degree of authority as to the assignment and direc-
tion of work pertains to the assignment and direction of
work of certain employees on Gravitt's crew. As to Gra-
vitt, some of his crew were selected for assignment by
the "Erector." However, there are some members of
Gravitt's crew who were directed in their work and
were assigned to work by Gravitt.
Considering all of the above, I conclude and find that
the crew foremen (Charles R. Hayes, William A. Gra-
vitt, Tom Goff, Billy Johnson, and James Westbrook)
possess the authority to responsibly select employees for
assignment to work and to responsibly direct such em-
ployees in their work in a nonroutine manner. By pos-
sessing and exercising such authority, such crew foremen
possess and exercise supervisory authority within the
meaning of the Act and are supervisors within the mean-
ing of the Act.
Accordingly, it is found and concluded that Charles R.
Hayes, William A. Gravitt, Thomas E. Goff, Billy John-
son, and James Westbrook are supervisors within the
meaning of the Act and recommended that the chal-
lenges to their ballots be sustained.
The resolution of challenges to the ballots of Terry
Boring, R. L. Carter, Richard S. Todd, Drew Todd,
Harry W. Pridgen, William H. Robbins, David Dutton,
and F. M. Anderson requires consideration of two fac-
tors. One factor for consideration is whether such indi-
viduals had a reasonable expectancy of further employ-
ment at the Riegelwood site. The other factor is whether
such individuals were discriminatees within the meaning
of Section 8(a)(3) and (1) of the Act. It has already been
found that the above-named employees were discrimina-
tees within the meaning of Section 8(a)(3) and (1) of the
Act. Absent discriminatory considerations, the facts
reveal that the employees laid off on December 6, 1978,
had a reasonable expectation of further employment by
Respondent at the Riegelwood project as of the time of
the January 4, 1979, representation election held in Case
11-RC-4602. Thus, the project involved and Respond-
ent's work plans envisioned a need for the hiring of addi-
tional millwrights in the early part of 1979. Respondent's
official's statements to the millwrights and millwright
helpers had made it clear that the Riegelwood job was
one involving the need for hiring of millwrights at a time
after the December 6, 1978, layoffs. In fact, the reason
for the December 6, 1978, layoffs was the necessary
delay for a certain type of work. Project Manager Rein-
hardt made it clear to the employees laid off on Decem-
ber 6, 1978, that there would be a need for rehiring and
that they would be the first to be hired or rehired on the
Riegelwood project.
At the hearing the Union argued that the facts reveal
that the employees laid off on December 6, 1978, had a
reasonable expectancy of employment on the Riegel-
wood site as of January 4, 1979, the date of the represen-
tation election held in Case I -RC-4602. Respondent, on
brief, argues that the eligibility of laid off employees to
vote in the election was litigated in the representation
case and that the Regional Director had excluded laid
off employees from the ranks of employees eligible to
vote. I reject Respondent's contention that the Regional
Director's representation case decision disposes of the
status of employees laid off from the Riegelwood jobsite.
The issue in the representation case involved a conten-
tion by Respondent that employees who had worked on
other jobsites for Respondent, but not at Riegelwood,
should be allowed to vote on the basis of reasonable ex-
pectancy of employment in accordance with Daniel Con-
struction Company, Inc., 133 NLRB 264 (1961). Such
contention was rejected by the Regional Director. Such,
however, does not dispose of the eligibility to vote by
employees who were laid off from the Riegelwood job-
site. Their eligibility to vote depends upon whether such
employees had a reasonable expectancy of future em-
ployment at the Riegelwood site. The facts clearly reveal
that the employees laid off on December 6, 1978, had a
reasonable expectancy of future employment at he Rie-
gelwood site as of January 4, 1979. Accordingly, it is
concluded and found that the challenges to the ballots of
Terry Boring, R. L. Carter, Richard S. Todd, Drew
Todd, Harry W. Pridgen, William H. Robbins, David
Dutton, and F. M. Anderson should be overruled, and
that their ballots should be opened and counted in Case
I -RC-4602 with respect to the election held on January
4, 1979.
The resolution of the challenge to the ballot of L.
Woodrow Long concerns whether or not Long enjoyed
a community of interest with the millwrights and help-
ers.
The Regional Director's Supplemental Decision, dated
April 27, 1979, contained the following summary of facts
and contentions concerning L. Woodrow Long:
266
B. E. & K., INC.
L Woodrow Long was employed on or about Oc-
tober 9 as an expediter. Although he is classified as
a journeyman millwright, the evidence revealed that
he has worked with his tools only a small portion of
the time he has been employed at the project. As an
expediter, Long is responsible for delivering equip-
ment and tools to the various jobsites on the pro-
ject. If the equipment is small, Long may deliver
the equipment personally to the millwright crew re-
sponsible for the installation. However, if it is large,
Long will have the rigging department or iron-
workers deliver it. Long uses the millwright super-
intendent's office on occasion to maintain an equip-
ment checklist. Long spends only about 10 percent
of his time in contact with members of the mill-
wright crew.
The Employer contends that Long not only
checks all incoming equipment and either delivers
or assists in the delivery of said equipment to the
various jobsites; he also spends 90 percent of his
time working with the millwright craft employees,
and does not service any other craft ....
The evidence reveals that Long was employed as an
expediter on October 9, 1978, and from this date until
the date of the election on January 4, 1979, was carried
on the payroll sheets of various millwright crews. Long's
rate of pay was the same as that of a journeyman mill-
wright. His duties consisted of locating millwright mate-
rials, equipment, and tools from a general area where
materials, equipment, and tools for various crafts were
left, and of taking or seeing that such millwright materi-
als, equipment, and tools were taken to the proper job-
sites on the project. Although perhaps not absolutely es-
sential, it is clear that Long's millwright experience con-
stituted a helpful factor in his job performance.
Long wears a white hardhat rather than a blue hardhat
as worn by ordinary rank-and-file millwrights and help-
ers. Long's work involves his travel over many areas of
the project whereas the millwrights and helpers are es-
sentially located in one work section at a time. Despite
such distinctions, Long's work is closely related to and
integrated with the millwrights' work. His rate of pay is
geared to that of a journeyman millwright, and he is car-
ried on millwright payrolls. The sum of the facts reveals
that Long enjoyed a community of interest with the mill-
wrights and millwright helpers. It is concluded that the
challenge to Long's ballot should be overruled, and that
such ballot should be opened and counted with respect
to the January 4, 1979, representation election held in
Case 11-RC-4602.
E. The Objections
1. Objection I averred that "[Respondent], through its
officers and agents, threatened its employees by sur-
rounding the polling area with Fieldcraft supervisors."
The Regional Director's Supplemental Decision set
forth in effect that the evidence concerning such objec-
tion related to contentions that Project Manager Rein-
hardt and Millwright Superintendent Bell were in the
polling area during the voting hours, and that Bell gath-
ered the eligible employees at 4:30 p.m., and made them
wait before allowing them to go to vote. As to this last
contention, the Regional Director alluded to the Region-
al Office's December 15 letter sent to the parties in con-
firmation of the agreed upon election arrangements in
which it was set forth that "Voters will release them-
selves to vote and may vote at any time the poll is
open." The Regional Director also alluded to a similar
statement included in the "Notice of Election."
The Regional Director's Supplemental Decision also
set forth that Bell stated:
. . .that on the day of the election he told the fore-
men to have all of their people over by the finishing
building at 4:30 p.m. When the men arrived, the
foremen came with them. I told them to wait at the
millwright tool trailer until the other men had
voted. The foremen insisted on voting so I told
them that they should vote after the other men had
voted. When the others had voted I told the fore-
men to go ahead and vote. This was a little after 5
p.m.
The evidence presented at the hearing was to the
effect that Bell told employees on January 4, 1979, to
meet at the shipping and receiving area and to wait there
until time to vote. There is no evidence that any eligible
voter was restrained by Bell's conduct in such regard in
any way from having an opportunity to vote at any time
during the voting hours from 4:30 p.m. to 5:30 p.m. The
statement in the letter of confirmation of election ar-
rangements and in the Notice of Election to the effect
that "Voters will release themselves to vote and may
vote at any time the poll is open," is designed to insure
that voters have full opportunity during the voting hours
to exercise the right to vote, The procedure used by Bell
of in effect releasing employees from work prior to the
voting hours would not appear to have any effect of an
interfering nature limiting the eligible employees' right to
exercise their right to vote. The statement in the Region-
al Director's Supplemental Decision as to what Bell
stated would reveal that foremen were restrained in their
attempt to vote until after the rank-and-file employees
had voted. Since the facts reveal that such foremen were
supervisors within the meaning of the Act, I am persuad-
ed that such conduct by Bell, if such occurred,2 5 would
not constitute conduct supporting a finding of objection-
able conduct warranting the setting aside of the January
4, 1979, representation election. As indicated beforehand,
I am persuaded, and conclude and find, that Bell's con-
duct in having rank-and-file employees meet at the ship-
ping and receiving area before the time that the polls
opened does not constitute conduct of an objectionable
nature warranting the setting aside of the January 4,
1979, representation election.
Ward and Robbins testified to the effect that they at-
tended a preelection conference on January 4, 1979, and
that it was their understanding that no company officials
or supervisors were to be in the immediate voting area
during the voting hours. The facts reveal that the voting
25 Evidence as to this conduct referred to in the Regional Director's
Supplemental Decision was not presented at the hearing in this matter.
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred in a conference room, that voters entered the
conference room from a door on the right side, and that
voters, after voting, proceeded out of the conference
room by going through a door on the left side of the
conference room. There is a hallway outside the confer-
ence room and offices in the building complex. During
the voting hours, several employees saw Reinhardt and
other agents of Respondent at times in the hallway of the
complex. There is no evidence that Reinhardt or the
other agents of Respondent engaged in electioneering
near the polls or acted in such a manner in or around the
hallway so as to interfere with the employees' free exer-
cise of their right to vote. The Union's understanding
that Respondent's agents would not be allowed in the
immediate voting area appears to be consistent with gen-
eral principles applicable to the conduct of NLRB repre-
sentation elections. The Union's understanding that the
hallway area wherein Respondent's agents were ob-
served during the voting time constituted an area where-
in the presence of such agents was restricted appears to
have been the Union's interpretation of what constituted
the immediate voting area. In my opinion, the facts do
not reveal that the area wherein Respondent's agents
were observed to be was an immediate voting area.
In summary, the evidence does not reveal that Re-
spondent engaged in objectionable conduct as averred in
Objection I. It is recommended that Objection I be over-
ruled.
2. Objection II averred that "[Respondent], through its
officers and agents, coerced and intimidated its employ-
ees by laying off employees on Wednesday prior to the
election on Thursday."
This objection concerns the discharge of William A.
Gravitt on January 2, 1979. The facts reveal that Gravitt
was a supervisor within the meaning of the Act and that
the discharge of Gravitt was not violative of the Act.
Accordingly, it will be recommended that Objection II
be overruled.
3. Objection III averred that "[Respondent], through
its officers and agents, threatened apprentices with non-
progression if the Union won the election.
The evidence relating to this issue concerns statements
by Goodrich concerning Respondent's ratio of appren-
tices or helpers to millwrights and the ratio of appren-
tices or helpers to millwrights under certain contracts
the Union had with other employers. I credit Goodrich's
testimony that his statements were of such a comparative
nature. Under such circumstances, Goodrich's statements
were not to be construed in the nature of expected acts
of reprisals but rather in the nature of what employees
could expect if the Union secured the type of contracts it
had with other employers. Accordingly, such allegation
of objectionable conduct is not supported by the evi-
dence. It will be recommended that Objection III be
overruled. 26
4. Objection IV averred that "[Respondent], through
its officers and agents, turned employees back from the
polling area during the voting period.
The Regional Director's "Supplemental Decision" and
the litigation in this case reveal that this objection con-
a6 Such conduct was not alleged as an unfair labor practice.
cerns the conduct of Respondent's attorney, Weathersby,
in talking to Richard and Drew Todd and Anderson
while they were proceeding to the polling place around
the commencement of voting on January 4, 1979.
There is a dispute as to the facts between the testimo-
nial versions of the Todds and Weathersby. I am per-
suaded that all of these witnesses attempted to testify
truthfully. Of such witnesses, I am persuaded that
Weathersby's testimony is more accurate and that the
Todds' testimony constituted in effect their conclusion of
what Weathersby's statements had meant.
What occurred is revealed by the following findings of
fact and excerpts from the testimony:
The arrangements for the election, as revealed in Field
Examiner Reese's December 15, 1978, letter to the par-
ties, provided that, in the event persons not presently
employed appeared at the Company asserting the right
to vote, they were to be admitted to the polling place at
any time the polls were open to confer with the Board
agent in charge.
On January 4, 1979, the two Todds and Anderson ap-
peared at a construction gate near the scheduled polling
site. They had been advised by letter of the voting time
and voting site. When the Todds and Anderson first ap-
peared at 4:15, a person from Respondent's personnel
office advised them that they would have to come back
at 4:30 p.m. and sign in before going in to vote. Around
4:30 p.m., they signed in and proceeded toward the poll-
ing place. What occurred then is revealed by the follow-
ing credited excerpts from Weathersby's testimony: 27
Q. What happened when you started walking
back?
A. About that time, there were three or four
people who were trying to come in and the guard
was trying to stop them. I heard her say, "you can't
go in, you can't go in the project, you have to go to
the personnel trailer," or words to that effect. They
went right on past her. I walked up to them, and I
said, "you are on private property, you are trespass-
ing, and you could get arrested; if you are coming
in to vote, I can assure you that everybody that
wants to vote will be allowed to vote." At that
point, one of them said, said to me, "Who are you?"
I answered, "I am BE&K's lawyer. But you
cannot talk to me within 24 hours of the election."
They walked on past, and I turned around, and saw
them getting in line to vote. I went in what has
been described here as the exit door, went back to
Larry Reinhardt's office, and I sat there until 5:30
when we went to count the votes.
It is undisputed that the Todds and Anderson voted
without further incident. 28
2 I have carefully considered Weathersby's relationship as an attorney
with Respondent in my determination of credibility.
as Evidence has been presented, however, to the effect that the Todds'
and Anderson's involvement in such an incident resulted in a letter from
Federal Paper Board Company, Inc., to Respondent wherein it was ex-
pressed that the two Todds and Anderson would no longer be permitted
to work at the site.
268
B. E. & K., INC.
As voters, the two Todds and Anderson had the right
to have the election on January 4, 1979, conducted under
the auspices and control of the NLRB as an arm of the
U.S. Government. Weathersby's conduct was tantamount
to the assertion of control of the election procedures by
a party thereto and interfered with a free and untram-
meled exercise of voting rights by the Todds and Ander-
son by injection of the possibility of arrest for the exer-
cise of a protected right. Such individuals very well
might have voted out of anger or out of fear, either of
which destroys the laboratory conditions of an NLRB
representation election. Under these circumstances,
whether Weathersby's conduct was intentional or not,
Weathersby's conduct constituted conduct which inter-
fered with the holding of a free and untrammeled elec-
tion on January 4, 1979. Accordingly, it is recommended
that Objection IV be sustained.
5. Objection V averred "By these and other acts [Re-
spondent], coerced, intimidated, and threatened its em-
ployees in their free exercise of choice as guaranteed
under the Act."
The findings of unfair labor practices occurring be-
tween October 20, 1978, and January 4, 1979, as previ-
ously set forth, support a finding and conclusion that Ob-
jection V is supported and should be sustained. Thus, the
facts relating to interrogation by Bell on January 4, 1979,
and by Goodrich in late November 1978, the threats by
Pope in late November 1978, the threats of denial of
raises by Bell, the threats by Hayes relating to the wear-
ing of union stickers, and the discriminatory layoffs on
December 6, 1978, all require a finding that Objection V
is supported and warrant a setting aside of the January 4,
1979, representation election.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondent laid off Thomas E.
Goff in violation of Section 8(a)(1) of the Act, and laid
off Terry Boring, R. L. Carter, James Eason, Richard S.
Todd, Drew G. Todd, Sr., Harry W. Pridgen, William
H. Robbins, David L. Dutton, and F. M. Anderson in
violation of Section 8(a)(3) and (1) of the Act, the rec-
ommended Order will provide that Respondent offer
each reinstatement to his job, and make each whole for
any loss of earnings or other benefits within the meaning
and in accord with the Board's Decisions in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977),29 except as specifi-
cally modified by the wording of such recommended
Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in
the exercise of their rights guaranteed by Section 7 of
the Act. 30
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent B. E. & K., Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union 1165, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, is, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
3. By laying off Thomas E. Goff, Respondent inter-
fered with employees' organizational rights and thereby
violated Section 8(a)(1) of the Act.
4. By laying off employees Terry Boring, R. L. Carter,
James Eason, Richard S. Todd, Drew G. Todd, Sr.,
Harry W. Pridgen, William H. Robbins, F. M. Anderson,
and David L. Dutton, Respondent has discouraged mem-
bership in a labor organization by discriminating in
regard to tenure of employment, thereby engaging in
unfair labor practices in violation of Section 8(a)(3) and
(I) of the Act.
5. By the foregoing and by interfering with, restrain-
ing, and coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act, Respondent
engaged in unfair labor practices proscribed by Section
8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3 1
The Respondent, B. E. & K., Inc., Riegelwood, North
Carolina, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
29 See, generally, Isis Plumbing d Heating Cao., 138 NLRB 716 (1962).
S I note that the instant proceeding reveals that Respondent and Fed-
eral Paper Mill have exchanged communications concerning keeping the
Todds and Anderson off of the Federal Paper Mill site because of the
events of January 4. 1979. Such employees were engaged in a protected
right of participating in an NLRB representation election. Such rights are
not to be denied or interfered with by private parties. The Regular
remedy shall be ordered for the violative conduct found. All persons
should be aware that attempted frustration of such rights may expose
such parties to the penalties of Sec. 12 of the Act.
3l In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Laying off or otherwise discriminating against em-
ployees in regard to their hire or tenure of employment
or any term or condition of employment because of their
union or protected concerted activities.
(b) Laying off supervisors in order to interfere with
employees' organizational rights.
(c) Threatening employees with discharge, denial of
raises, loss of jobs, placement on blacklists, or other re-
prisals because of their union activities or protected con-
certed activities.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Thomas E. Goff, Terry Boring, R. L.
Carter, James Eason, Richard S. Todd, Drew G. Todd,
Sr., Harry W. Pridgen, William H. Robbins, F. M. An-
derson, and David L. Dutton immediate and full rein-
statement to their former positions or, if such positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of pay or other benefits they may have suf-
fered by reason of the discrimination against them in the
manner described above in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at Respondent's project at Riegelwood, North
Carolina, and at its main office, copies of the attached
notice marked "Appendix."3 2 Copies of said notice, on
forms provided by the Regional Director for Region 11,
after being duly signed by Respondent's authorized rep-
resentative, shall be posted by it immediately upon re-
3: In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlaw-
ful conduct not specifically found to be violative herein
be dismissed.
With respect to the challenges to ballots and the ob-
jections to the representation election held on January 4,
1979, in Case I 1-RC-4602, it is hereby ordered that:
. The challenges to the ballots of Charles R. Hayes,
William A. Gravitt, Thomas E. Goff, Billy Johnson, and
James Westbrook be sustained.
2. The challenges to the ballots of L. Woodrow Long,
William H. Robbins, Richard S. Todd, Drew G. Todd,
Sr., F. M. Anderson, R. L. Carter, Harry W. Pridgen,
Terry Boring, and David L. Dutton be overruled, that
such ballots be opened and counted, that a revised tally
of ballots reflecting the results of the counting of such
ballots as opened as referred to above be issued, and that,
if such revised tally of ballots reveals that a majority of
ballots has been cast for the Union in said January 4,
1979, representation election, the appropriate certifica-
tion of exclusive representative status be issued.
3. Objections II and III be overruled. 33
4. Objections I, IV, and V be sustained, and, if the
Union does not receive a majority of the ballots cast in
the election held on January 4, 1979, the election held on
January 4, 1979, be set aside and Case 11l-RC-4602 be
severed from Cases I l-CA-8035 and 1 l-CA-8192 and
be remanded to the Regional Director of Region 11 to
conduct a new election when he deems the circum-
stances permit the free choice of a bargaining representa-
tive.
:3 Objection II averred that "[Respondent], through its officers and
agents, coerced and intimidated its employees by laying off employees on
Wednesday prior to the election on Thursday." Objection III averred
that "[Respondent], through its officers and agents, threatened appren-
tices with nonprogression if the Union won the election."
270