Baddour Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1986

281 N.L.R.B. 546 (N.L.R.B. 1986)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baddour Inc. and Highway and Local Motor Freight
Employees, Local 667, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and
Elton Hill and Jerry Leonard Williams. Cases
26-CA-9846, 26-CA-9957, 26-RC-6527,1 26-
CA-9997, and 26-CA-10121
26 September 1986
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 11 October 1983 Administrative Law Judge
George Norman issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in response to the Respondent's ex-
ceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
i This case number appears as corrected.
2 The Respondent excepts to the judge's failure to grant its motions to
strike testimony and reject evidence, and to reopen the record . The Re-
spondent also excepts to the judge 's granting of the General Counsel's
motions to correct the transcript and to consolidate cases for hearing. We
find no merit in these exceptions.
The Respondent was represented at hearing by counsel William E.
Hester III and Theresa Galleon. On 20 April 1983 after 10 days of hear-
ing, the judge limited Gallion's participation in the cases to assisting
Hester at counsel 's table On 1 July 1983, the Respondent requested that
the judge withdraw from these cases , contending he was biased, based on
certain evidentiary rulings by the judge , his "excessive" questioning of
the Respondent 's witnesses, his alleged unprofessional conduct , and his
threats to exclude the Respondent counsel from the hearing and the ulti-
mate "exclusion" of Galleon . In his decision , the judge denied the Re-
spondent's motion as without merit . The Respondent excepts to this
denial and asserts that the judge 's rulings and decision are the result of
bias. After a careful review of the record , we are satisfied that the
judge's evidentiary rulings did not prejudice the Respondent 's presenta-
tion of evidence . We are also satisfied that the judge's conduct at hearing
was consistent with his obligation to develop a full record and that cer-
tain of his remarks , while unwise, did not evidence bias. Furthermore, we
find that the judge 's decision to limit the participation of Gallion was not
an abuse of his discretion and authority under Sec. 102 35 and 102.44(a)
of the Board 's Rules . The record reveals that on the 6th through 10th
days of hearing, the judge repeatedly warned both counsel for the Re-
pondent about arguing after his evidentiary rulings, objecting to questions
that the judge previously had ruled were proper, needlessly interrupting
the testimony of witnesses , and making unnecessary statements on the
record. These warnings included specific cautions that such conduct
would lead to exclusion of counsel . On the 10th day of the hearing,
during direct examination of witness Gatlin , the judge and counsel Gal-
lion engaged in an extended colloquy on the record during which the
judge repeatedly asked Gallion to cease arguing the point in issue and to
remain quiet . Gallion persisted despite the judge 's instructions . Following
a brief recess, the judge ordered Gallion excluded in the interests of
order, given her failure to heed his warnings . In further discussion, the
judge noted that Gallion had acted contemptuously , but on request of co-
counsel the judge modified his ruling to allow Galleon to remain in the
hearing room and assist at counsel's table . The judge also excused witness
Gatlin until Hester was prepared to resume the direct examination. The
Respondent contends that Gallion should not have been excluded as her
decided to affirm the judge's rulings,2 findings,3
and conclusions and to adopt the recommended
Order as modified and set forth below.4
We agree with the judge that the Respondent
violated Section 8(aX3) by transferring employee
Jerry (Lowell) Williams prior to the election from
his cart control position, in which he had virtually
unlimited access to all warehouse areas, to a con-
solidator position, in which he was limited to one
specific area of the facility. In so doing, we note
that the Respondent did not adequately explain its
decision to transfer Williams, who had no experi-
ence as a consolidator, in light of the fact that ex-
perienced temporary employees were available,
and it failed to replace Williams when he injured
his hand shortly after the transfer , even though the
injury rendered him unable to perform consolidator
duties . We further note that the transfer of Wil-
liams is distinguishable from that of employee Hill,
discussed below, in that with respect to Hill the
General Counsel alleged but failed to establish that
Hill's transfer resulted in more onerous working
conditions.
We agree with the judge that the Respondent
violated Section 8(a)(4) by causing the stoppage of
Williams' workmen's compensation . At the hearing
Williams testified that he had used his brother
Lowell's application in obtaining his job. We note
in particular that Williams informed Supervisor
Eason Camp in February 1981 that he was Jerry,
and not Lowell, Williams. Although thereafter Wil-
liams' social security number was changed in the
Respondent's personnel records, Camp encouraged
conduct was respectful and in furtherance of its interests as her client.
While we are sensitive to the important role of the attorney -advocate in
the administration of justice , we are equally attuned to the interest furth-
ered by the orderly development of issues and evidence in hearing. We
note, as did the judge , that the Respondent's interests were adequately
protected by the judge 's willingness to grant the Respondent continuing
objections to Imes of inquiry considered improper by the Respondent.
We find no merit in the Respondent 's contention that counsel 's repeated
objections and argument after adverse rulings were warranted We con-
clude under all the circumstances that the judge's ruling hunting Gal-
lion's participation in the hearing was not improper.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
* The Respondent 's request for permission to incorporate by reference
its brief to the judge in its brief to the Board is denied, inasmuch as it
would result in the Respondent 's brief being in excess of the 50 -page limi-
tation prescribed by the Board 's Rules and Regulations.
Subsequent to the issuance of his decision, the judge issued an Erratum
in which he amended his recommended Order to provide that the 29 Oc-
tober 1982 election be set aside and a new election be directed . Thereaf-
ter, the Union filed with the Board a "Motion for Erratum and Further
Specified Relief" in which it urged, inter alas, that the election be set
aside , and the Respondent filed a motion to strike the Union 's motion In
view of the judge 's issuance of his Erratum and our decision here, we
find it unnecessary to pass on the Union's and the Respondent 's motions
281 NLRB No. 84
BADDOUR, INC.
him to retain use of the name "Lowell" around the
warehouse . Thus the Respondent is, at least in part,
responsible for the continued reference to Williams
as "Lowell ." Moreover, it was the Respondent's
counsel, at the hearing, who introduced the ques-
tion of Williams ' real name when he attempted to
impeach Williams' credibility by inducing him to
admit that he was not "Lowell" Williams, as he
had previously testified . Thus the Respondent's as-
sertion that it had no knowledge of Williams'
"true" identity until after he testified is dubious at
best.
We thus reject the Respondent 's contention that
it informed the insurance company of Williams'
identity directly after his testimony only because of
its newly perceived obligation to do so . We also
find that the Respondent is not exonerated by
virtue of the "request" for continuation of Wil-
liams' benefits made to the insurance company by
Fred Steams , the Respondent 's personnel manager.
Stearns could not reasonably have expected favor-
able consideration of such a request when coupled
with a report that the insurance company had been
paying benefits to the wrong person, particularly
since Stearns failed to qualify his report with an as-
surance that Williams had reported his true name
to the Respondent . In these circumstances, and
given the Respondent's other acts of discrimination
against Williams, we conclude that the request for
continuation was disingenuous at best and that the
Respondent was in fact acting in retaliation against
Williams for his testimony at the Board hearing.
While we agree with the judge that the Re-
spondent's maintenance of its no-solicitation/no-dis-
tribution rule violated Section 8 (a)(1) of the Act,
we do so for the following reasons.
The rule set forth in the Respondent's employee
handbook reads as follows:
To avoid interruption of work and complica-
tions and distractions in our operations, em-
ployees are not permitted to sell anything, dis-
tribute or post literature or other matter, make
speeches or collections , or engage in any kind
of solicitation during their working time, or in
any way to interfere with the work of other
employees.
Clearly, to the extent that the Respondent's rule
prohibits employees from engag [ing] in any kind of
solicitation during their working time"8 that aspect
of the rule is valid on its face under the Board's de-
cision in Our Way, 268 NLRB 394 (1983 ). The rule,
however, also states that "employees are not per-
11 The Respondent , m its personnel manual , subsequently changed this
phrase to read "during the time they are supposed to be working." This
change, however, does not affect our decision.
547
mitted to sell anything , distribute or post literature
or other matter, make speeches or collections,"
and, in our view, is ambiguous because the qualifi-
cation "during working time" could reasonably be
read as modifying only the proscription on solicita-
tion. Interpretation of the rule is further complicat-
ed by the fact that the Respondent's clarification,
issued in November 1981 in response to the Board's
decision in T.R. W., Inc., 257 NLRB 442 (1981),8
refers only to solicitation, making no mention of
distribution or the other activities enumerated
above . Thus both the rule and its "clarification"
could be read as a blanket prohibition on these ac-
tivities, leaving only solicitation during nonworking
time as a permissible practice . Accordingly because
ambiguous language in work rules is construed
against the promulgator of the rule, see, e.g., J. G
Penney Co., 266 NLRB 1223, 1224 (1983), we find
that the Respondent 's rule, insofar as it may be
read as an overall prohibition on distribution of any
kind, violates Section 8(a)(1) of the Act.
The judge further found that the Respondent
violated Section 8(a)(3) and (1) of the Act by trans-
ferring employee Elton Hill to a more onerous po-
sition because of his union activity. We find merit
in the Respondent's exceptions to this fording.
Hill was employed as a forklift driver in unit 1 of
the Respondent's warehouse. Hill's duties in unit 1
included forklift driving and material handling, be-
cause unit I had no regularly assigned material
handler . Approximately 1 week before the election,
which was conducted on 29 October 1982, Hill
began to wear union- buttons at work . On 29 Octo-
ber Hill was transferred from unit 1, which was
close to the polling site , to unit 3 . During the first
week after his transfer , Hill performed exclusively
as a forklift driver, although thereafter he worked
primarily as a material handler. Material handling
involved manually unloading merchandise from de-
livery trucks and stacking it on pallets for removal
by forklift operators . In unit 3, Hill also substituted
for the forklift drivers in their absence.
Hill specifically testified that there was nothing
less desirable or more difficult about the work he
was required to perform in unit 3 as opposed to his
assignments on unit 1, and the evidence does not
establish that the unit 3 work was more physically
demanding. When asked what job he preferred,
Hill testified that he preferred the unit 1 job, al-
though as a basis for this preference he cited only
alleged "harassment" by the unit 3 supervisor,
rather than the physical aspects of the job . In this
a We note that the Respondent 's reliance on T. . W., which was subse-
quently overruled in Our Way, resulted in no prejudice to the Respond-
ent since the latter case increased the General Counsel's burden of estab-
lishing a violation.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard, Hill indicated that after his transfer to unit
3, he was closely watched by his supervisor and
told that he could no longer punch in at 7 a.m., but
had to punch the timeclock between 6:55 and his 7
a.m. starting time. While the timekeeping proce-
dures in unit 3 may have been different from those
in unit 1, however, there is no evidence that Hill
was subjected to significantly closer supervision or
stricter timekeeping procedures than other unit 3
employees.
The judge found that Hill's work in unit 3 was
more onerous. In reaching this conclusion the
judge relied on his finding that Hill's material han-
dling duties in unit 3 were more physically de-
manding than his work in unit 1 and on the alleged
"harassment" of Hill by his supervisor. Relying on
the Respondent's failure to explain the reason for
Hill's transfer, the judge concluded that Hill's
wearing of union buttons, and the proximity of
Hill's unit 1 work station to the election polling
site, caused the Respondent to move Hill into the
more onerous position in unit 3.7
Contrary to the judge, we fmd that the General
Counsel has failed to establish that Hill's duties in
unit 3 were more onerous than his duties in unit 1.
We note in particular that during his first week in
unit 3, Hill performed the same duties he had per-
formed in unit 1, i.e., forklift driving, and that he
continued to substitute for absent drivers thereafter.
We further note that Hill's duties in unit 1 had
often required him to act as a material handler.
Thus, while Hill's unit 3 assignments entailed more
material handling, the objective evidence and Hill's
own evaluation of the work do not demonstrate
that they were more onerous than his duties in
unit 1.
Moreover, Hill's allegations of "harassment" by
his unit 3 supervisor are not supported by the
record. Accordingly, we conclude that the General
Counsel has not met its burden of establishing that
Hill's working conditions in unit 3 were more oner-
ous than the working conditions in unit 1. There-
fore, we shall dismiss this allegation of the com-
plaint.
The judge found that "statements" made by the
Respondent's president, Paul Baddour, during pree-
lection speeches to employees had a coercive effect
on employees and violated Section 8(a)(1) of the
Act. In his discussion of the speeches, the judge re-
ferred to several statements attributed to Baddour,
but did not specify which of these statements were
unlawful. Because the complaint alleges a violation
only with respect to Baddour's statement that the
' We note that the complaint does not allege that the Respondent dis-
criminatorily transferred Hill in order to remove him from the polling
area.
Company is no place for employees who want a
union, we find that this statement alone violated
Section 8(a)(1), and we do not pass on the lawful-
ness of other statements Baddour may have made.
We agree with the judge that the Respondent
violated Section 8(a)(1) of the Act through Super-
visor Charles Smith's interrogation of employee
Britton. We disagree, however, with the judge's
conclusion that Smith's offer of assistance to Brit-
ton constituted a solicitation of grievances in viola-
tion of the Act. We note that Smith's offer of as-
sistance was made following his inquiry as to how
Britton's daughter was doing. Thus, it appears in
context that Smith's statement was an offer of per-
sonal assistance and not a solicitation of work-relat-
ed grievances.
Further, while we agree that the Respondent
violated Section 8(a)(1) through its security guards'
recording the automobile license numbers of union
supporters, we fmd that the guards' observation of
employees handbilling at the gate to the Respond-
ent's premises, an area open to public view, was
neither unlawful nor objectionable. In so finding,
we distinguish those incidents during which the
guards were merely observing the handbilling from
those incidents during which they were unlawfully
recording license numbers. See generally Hoschton
Garment Co., 279 NLRB 565 (1986).
We also agree with the judge's conclusion that
the Respondent violated Section 8(a)(1) of the Act
through Supervisor Shelley Smith's remarks to em-
ployee Patrick Amsden. In so doing we note that
Smith's comments about the Union were accompa-
nied by a threat to discharge Amsden if he did not
stop "talking the union up."
While we agree with the judge that Supervisor
Tarver unlawfully interrogated and threatened em-
ployee Love, we note that, generally, a supervisor
may lawfully express his or her personal views of
or experience with unionism. Here, however, al-
though some of Tarver's statements arguably con-
stituted his personal views, the overall context of
Tarver's remarks, in our view, is coercive and, ac-
cordingly, we find Tarver's conversation with
Love to be violative of the Act. Thus, Tarver
called Love, who was not shown to be an open or
active union adherent, into his office and began dis-
cussing certain personnel matters with him. When
Tarver's comments turned to the Union, his "opin-
ions" on unions were accompanied by interrogation
as the Respondent's employees' reasons for wanting
a union and thinly veiled threats concerning the
consequences of unionization at the Respondent.8
8 In agreeing with his colleagues that Tarver's statements violated Sec.
8(a)(1), Member Stephens relies on the overall context of the campaign
and the Respondent's other unfair labor practices.
BADDOUR, INC.
In agreeing with the judge that the Respondent
unlawfully discharged employee David Cordray,
we note that the judge credited Cordray's testimo-
ny to the extent it conflicted with McCollum's tes-
timony . Moreover, even assuming the alleged
remark was made by Cordray, we rely on the evi-
dence of disparate treatment of Cordray and find it
unnecessary to pass on the remainder of the judge's
rationale.
ORDER
The National Labor Relations Board orders that
the Respondent , Baddour, Inc., Memphis, Tennes-
see, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining or giving effect to the invalid no-
solicitation/no-distribution rule.
(b) Telling employees that there is no place in
the Company for employees who want a union.
(c) Interrogating its employees concerning their
protected concerted activities for their mutual aid
and protection.
(d) Demoting, warning, or otherwise disciplining
employees because they have engaged in union ac-
tivities or testified before the Board.
(e) Surveilling or creating the impression of sur-
veillance of employees ' union activities.
(f) Discharging employees because they have en-
gaged in protected concerted activities with other
employees for their mutual aid and protection.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Larry Mayes, David Cordray, Patrick
Amsden, and Jerry Williams immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
or privileges previously enjoyed , and make them
whole for any loss of earnings and other benefits,
including loss of workmen 's compensation pay, suf-
fered as a result of their termination or demotion in
the manner set forth in the remedy section of the
judge's decision.
(b) Remove from its records any reference to the
unlawful discharges, demotions, or warnings of its
employees Larry Mayes, David Cordray, Patrick
Amsden, and Jerry Williams, and notify them in
writing that this has been done and that evidence
of this unlawful conduct will not be used as a basis
for future discipline against them.
549
(c) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its offices and places of business in
Memphis, Tennessee, copies of the attached notice
marked "Appendix." Copies of the notice, on
forms provided by the Regional Director for
Region 26, after being signed by the Respondent's
authorized representative , shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted . Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered , defaced, or covered by any
other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the election held
on 29 October 1982 in Case 26-RC-6527 is set
aside and that a new election be conducted.
[Direction of Second Election omitted from pub-
lication.]
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT terminate , demote, give warnings
to, or otherwise discriminate against our employees
because of their membership in or because they
engage in activities on behalf of the Union or gave
testimony before the Board.
WE WILL NOT tell employees that there is no
place in the Company for employees who want a
union.
WE WILL NOT engage in surveillance or give the
impression of surveillance of our employees' union
activities.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT question our employees concern-
ing their union activities , including attendance at
union meetings.
WE WILL NOT question employees concerning
their sympathy for, and activities on behalf of,
Highway and Local Motor Freight Employees,
Local 667, affiliated with international Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organiza-
tion.
WE WILL NOT give any force or effect to the no-
solicitation/no-distribution rule printed in our em-
ployee handbook and employee manual.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Larry Mayes, David Cordray,
Patrick Amsden, and Jerry Williams, immediate
and full reinstatement to, their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed and WE WILL make them whole with interest
for any loss of earnings and other benefits includ-
ing loss of workmen 's compensation pay resulting
from our unlawful discrimination against them.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge, demotion, or warning and that the dis-
charge , demotion, or warning will not be used
against them in any way.
BADDOUR, INC.
John Goree, Esq., for the General Counsel.
William E. Hester III1Esq., and Theresa M. Gallion, Esq.
(Kullman, Land Inman & Bee), of New Orleans, Lou-
isiana, for the Respondent.
John L. Koelz, Esq., and Duria Jones Jr., of Memphis,
Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge. This
case was tried in Memphis, Tennessee, February 22-25,
March 28-31, and April 19-21, 1983. On September 2,
1982, Highway and Local Motor Freight Employees,
Local 667, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union), filed a petition requesting an elec-
tion among certain employees of Baddour, Inc. (Re-
spondent). On October 29, 1982, the election was con-
ducted and resulted in 125 votes cast for the Union, 199
cast against the Union, 9 challenged ballots.
The Union filed objections to the election and the
Acting Regional Director recommended a hearing on
certain of those objections . On August 30, 1982,1 the
Union filed a charge in Case 26-CA-9846 and an amend-
ed charge on October 6. The complaint was issued by
the Regional Director for Region 26 on October 6,
which complaint was amended on October 19. On Octo-
ber 5, the Union filed charges in Cases 26-CA-9957 and
26-CA-9957-2. On December 13, those charges were
amended and on December 21, the Regional Director
issued a complaint based on those charges and consoli-
dated the matters for hearing.
On December 2, Elton Hill filed a charge in Case 26-
CA-9997 and on December 28, the Acting Regional Di-
rector issued a complaint and order consolidating that
charge with Cases 26-CA-9846 and 26-CA-9957. On
January 18, 1983, the complaint in Cases 26-CA-9846,
26-CA-9957, and 26-CA-9997 were consolidated for
hearing with the objections in Case 26-RC-6527.
On March 8, 1983, Jerry L. Williams filed a charge in
Case 26-CA-10121, and on March 16, the Regional Di-
rector issued a complaint based on that charge . Thereaf-
ter, counsel for the General Counsel filed a motion to
consolidate Case 26-CA-10121 with Cases 26-CA-9846,
26-CA-9957, 26-CA-9997, and 26-RC-6527. Over Re-
spondent's objections, I ordered the cases consolidated
for hearing.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place
of business in Memphis , Tennessee, engaged in the distri-
bution of consumer goods . Annually, in the course and
conduct of its business operations , Respondent sold and
shipped from its Memphis , Tennessee facility, products,
goods, and materials valued in excess of $50,000 directly
to points outside the State of Tennessee. Annually, Re-
spondent, in the course and conduct of its business oper-
ations , purchased and received at its Memphis, Tennessee
facility, products , goods, and materials valued in excess
of $50,000 directly from points outside the State of Ten-
nessee . Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ISSUES
1. Whether Respondent violated Section 8(a)(1) of the
Act by:
(a) Interrogating employees ' concerning their union
membership , activities, and sympathies.
(b) Soliciting employee grievances and impliedly
promising to rectify such grievances.
(c) Threatening an employee with more onerous work-
ing conditions if the employee supported the Union.
i All dates herein occurred in 1982 unless otherwise stated.
BADDOUR, INC.
(d) Threatening its employees with plant closure if its
employees selected the Union to represent them.
(e) Engaging in numerous acts of surveillance of its
employees in order to discover their union activities.
(f) About April 1, 1982, maintaining an invalid solicita-
tion and distribution rule.
2. Whether David McCollum was a supervisor within
the meaning of Section 2(11) of the Act and an agent of
Respondent within the meaning of Section 2(13) of the
Act during the period of August 16-20, 1982.
3. Whether Respondent violated Section 8(a)(3) and
(1) of the Act by:
(a) Giving a written warning to its employee Larry
Mayes.
(b) Discharging its employees Larry Mayes, David
Cordray, and Patrick Amsden.
(c) Transferring employee Jerry Williams to a less de-
sirable position of employment and assigning him to a
more onerous work task.
(d) Giving a written warning to its employee Jerry
Williams and placing him on probation.
4. Whether Respondent violated Section 8(axl), (3),
and (4) of the Act by causing the withdrawal of work-
men's compensation benefits from employee Jerry Wil-
liams because he gave testimony in the instant case.
5. Whether Respondent violated Section 8(a)(3) and
(1) of the Act by its transfer of employee Elton Hill to a
less desirable position of employment and assignment to
a more onerous work task.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has a distribution center in Memphis, Ten-
nessee . It distributes consumer products , including house-
hold items, dry goods, and health and beauty aids, and
services discount stores.
B. The Union Organizing Drive
On August 13, employee Larry Mayes contacted
Duria Jones, an organizer for the Union, to inquire about
organizing the employees of Respondent . The Union
thereafter conducted an organization campaign among
the warehouse, maintenance, and transportation employ-
ees of Respondent at its Memphis facility . The first union
meeting was held on Tuesday , August 17, and the
second on August 19.
On Tuesday, August 24, Paul Baddour , Respondent's
president, distributed a question-and-answer leaflet ad-
dressed to all the employees concerning the Union. On
September 2, a petition for an election was filed by the
Union and a hearing on September 22 resulted in a Stipu-
lation for Certification Upon Consent Election . The stip-
ulation was approved on the same date , and an election
was held on October 29. The results of the election have
already been stated above.
On October 25, Paul Baddour, according to the testi-
mony of employee Elton Hill, gave a speech to 15 em-
ployees in a small training room . A few of the employees
at the meeting wore "I Am for Baddour" T-shirts and
Hill had union buttons pinned on his shirt at the time.
Hill further testified that Paul Baddour stated at that
551
meeting that he was glad that some of the employees
"had sense enough to vote for the company, that there
are some who don't care for their jobs, and that we don't
need people like that working for us ." Hill said that
about seven employees including himself wore union but-
tons in the plant, including David Durrough, Anthony
Elsworth, Lowell Williams, Anita Neal, and Danny
Fitch.
Employee Jeffrey Ruffin testified that in mid -Septem-
ber, President Paul Baddour gave a speech to about 20
employees in the plant that lasted about 1 hour. He said
that in his speech Paul Baddour had said that the Com-
pany has no place for anyone , "going to be in the Union,
and the Union-well, all they'll do is take you out on
strikes and the strikers, they 'll be replaced and the
people who are hired to replace you, they could keep
your job if they elect to and you 'll just be put on the
list-a waiting list."
Employee Kyle Wade Love testified that in late Sep-
tember or mid-October the third -shift employees were
called to a meeting in the small training room. Love tes-
tified , "Mr. Paul (Baddour) called us in there on third
shift and said he wanted to have a meeting with us and
he started showing some slides-one of them had-what
use to be a house and all that was standing was the chim-
ney. It had been burned down . He said some of this was
the violence that can happen during a strike ." He said
that Baddour also told the employees at the meeting that
if they need union representation , there was no room for
them in the Company . Love testified that there was
about 60 employees present at that meeting.
Employee Jerry Britton testified that 2 weeks prior to
the election a meeting was held in the small training
room with about 20 or 25 employees present . He testified
that Paul Baddour stated there was no place for anyone
in this Company that wants the Union. Britton testified
that Baddour stated that, "if we thought that we needed
a Union to represent us, that we were in the wrong
place. He said only a few of them, maybe 5 or 10, really
wanted a union, but they don 't know me very well."
Britton testified further that during the week of the elec-
tion, Baddour gave a speech to the whole plant . He said
that there was no place for anyone in the Company that
wanted a union.
Employee Danny Fitch testified that in mid -October
the employees of the first shift were called to a meeting
in the warehouse cafeteria about 7 a.m. He said all super-
visors were present at that meeting , at which Paul Bad-
dour gave a speech . Fitch testified as follows : "The only
thing that I can remember out of the speech is that he
said that the Union had a bad reputation of burning
down houses and blowing up cars and they was mixed in
with the mafia and there was no place in the company
for people who wanted representation like this."
Baddour testified that he gave speeches to employees
on October 25-28 . He said that the purpose of these
meetings was "to set the record straight" in response to
attacks leveled on his character by union propaganda.
He said he spoke for approximately 1 hour in each of the
six sessions in these 3 days . On the first 3 days he pre-
sented to his employees a personal autobiography so they
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might be aware of his personal accomplishments, his
standing in the business community , and the underlining
goals towards which he strived on behalf of the Compa-
ny. He mentioned that he had received numerous scho-
lastic and other awards while in high school and college.
He received degrees in both law and accounting while in
college and he was active in church and civic affairs. He
told his employees how important his beliefs in Christian
doctrine were and that he had written a book concerning
these matters that was published throughout the entire
United States.
Baddour further testified that at the meetings held on
October 25-27, he told his audiences that a young female
employee of the Company , who had engaged in handbill-
ing activities on her own behalf, overheard comments
made by Duria Jones , the representative of the Union, as
he was handbilling on the Union 's behalf. Baddour told
the assembled employees that she told him that the union
organizer encouraged company employees to attend
union meetings and stated that the Union would provide
all the "marijuana, liquor, and naked women , that they
might be interested in." Baddour went on to recite that
Jones said that "if we don't have it we will get it for
you." Baddour stated "for the record" that he wanted
his employees to be aware that he did not approve of il-
licit or unlawful conduct and there was no room for it in
the Company.
Baddour denied participating in a meeting in which a
burned house was shown . He also denied making state-
ments that there is no room for people in the Company if
they thought they needed union representation or that
the Company has no place for anyone who wanted to be
in a union . Baddour also testified the he did not have a
written copy of the speech nor did he have any notes.
He said that "I only made notes of the accomplishments
through my lifetime ." He stated further, "I do a lot of
public speaking and I never make notes ." Baddour testi-
fied further that the only supervisors present at this
meeting were Larry Hunsucker, Don Gibson, and
George Abraham . He specifically denied that Vice Presi-
dent Leon Weatherford was present during any of his
speeches.
Baddour's testimony in that regard was contradicted
by Respondent 's witnesses Rick Wakefield, department
head, and Larry Hunsucker, who testified that Leon
Weatherford attended all meetings at which Paul Bad-
dour spoke.
The evidence shows that Paul Baddour had knowl-
edge of union activity on August 16 and had met with
his supervisors concerning union activity . However, he
was unable to recall any meetings he had with his super-
visors concerning the Union or whether the meetings
were held in August, September , or October . In addition,
he was unable to recall what he said in those meetings.
Respondent also presented employee witnesses who
denied that Paul Baddour made the statements alleged in
the complaint. 2
2 The General Counsel's witnesses, Elton Hill, Jeffrey Ruffin, Kyle
Wade Love, Jerry Britton, and Danny Fitch, were employees of Re-
spondent at the time they testified Their testimony was adverse to Re-
spondent and was given at the risk of reprisal including loss of employ-
ment . Notwithstandng, each testified in a straightforward, unhesitating,
I find that the statements made by President Paul Bad-
dour in his speeches had a coercive effect on the em-
ployees thereby affecting their Section 7 rights. Such
conduct violates Section 8(a)(1) of the Act.
C. Respondent's Treatment of Larry Mayes
As previously stated on August 13 employee Larry
Mayes contacted Duria Jones , the organizer of the
Union, and that contact resulted in the organizational
drive at Respondent's plant. Prior to contacting the
Union , Mayes had discussions with fellow employees re-
garding the Union, and after that he passed out union
membership cards during breaks and after work in the
employee parking lot. Larry Mayes was employed by
Respondent from April to August 27. He was employed
as a general maintenance leadman on the third shift.
Each day Mayes' supervisor, Bobby Boyd, left Mayes'
work assignment for that night . As leadperson, Mayes
oversaw the work of employees Frederick Taylor, Ellie
Hibbler, Hubert Waldrip, and Lorraine Woods. In addi-
tion, Mayes repaired concrete and did minor carpentry,
plumbing (including the repair of faucets), and electrical
work.
After the first union meeting on August 17, Mayes was
contacted at his home by his supervisor, Bobby Boyd.
Boyd asked Mayes how the meeting went. Mayes re-
sponded by asking, "What meeting?" Boyd responded,
"The Union meeting." Mayes then said "Okay." Boyd
then told Mayes that he knew that Mayes started the
union campaign . Mayes asked him where he got this in-
formation, and Boyd responded, "Well, someone told
me." Boyd then asked Mayes how many people were at
the meeting and how many maintenance people were
present.
According to Mayes, that was the first time that Boyd
called Mayes at home . Mayes later discussed his conver-
sation with Boyd with four or five other employees at
work that night. In the morning of August 18, Boyd had
another conversation with Mayes in Boyd's office to
give Boyd a routine report of what was done the night
before. When he entered Boyd's office, employee Keith
Townley was already there. In the presence of Townley,
Boyd asked Mayes how many people had signed union
cards and how many people were needed to get a union
started. Mayes told him it took 30 percent to have an
election.
Employee Keith Townley was called as a witness by
Respondent and was asked if on the morning of August
19 he had a conversation with Boyd about the Union in
Boyd's office. Townley said that he had. When asked if
he was ever present during a discussion concerning the
Union between Boyd and Mayes in Boyd's office, he re-
plied that Boyd and he were talking and Mayes came in
and "we talked about the Union ... I believe it was
about the Union cards. I'm not really sure." When asked
what was said by Boyd and Mayes during that conversa-
tion, the witness repeatedly responded, "I talked to
and steady manner I credit them and not Paul Baddour and Respond-
ent's other witnesses who merely denied hearing Paul Baddour make the
statements in issue . Shop-Rite Supermarket, 231 NLRB 500 ( 1977); Georgia
Rug Mill, 131 NLRB 1304 (1961), 308 F 2d 89 (5th Cir . 1962).
BADDOUR, INC.
Bobby several times on the union itself." Again the wit-
ness was asked what was said during the conversation
and by whom. His response was "We was talking about
union cards and Larry Mayes came in and Larry, he
took over and Bob never did ask him any questions at
all." He was then asked , "What did Larry Mayes say?
You say he took over . What did he say?" The witness
replied, "He started talking about how many union cards
it would take to get the union election ." Then the wit-
ness responded, when asked what Bobby Boyd said,
"Well, you know, he was asking Bobby if he had any
dealings with the Union before and Bobby said that he
really didn't know what it would take . Then Larry
would ask him a question and he would respond." When
asked if he recalled anything else being said during the
meeting, the witness said, "No, I don 't." He was then
asked if he was in a position to overhear everything
Boyd said while Mayes was in the room and the witness
replied, "No, I left . As far as I know they were still in
there when I left. I don't know. When I left, Larry
Mayes was standing up and , you know, a lot of times I
have seen Larry tell him a job to do , but as far as hear-
ing Bobby tell him-ask him about any kind of union
deal I never heard him say anything." He was then asked
if he heard Bobby Boyd ask Larry Mayes how many
people had signed union cards and the witness said, "No,
I didn't."
I find Keith Townley 's testimony to be worthless. He
appeared to be previously coached to deny that Boyd
asked Mayes any questions whatsoever about the Union
during that conversation, and the witness, unresponsively
and incoherently, kept denying that Boyd asked Mayes
any questions about the Union even though the particu-
lar question asked may not have been whether Bobby
Boyd questioned Mayes. The witness , who at the time
was an employee of Respondent, testified in a guarded
and seemingly fearful manner . I credit Larry Mayes who
testified in a consistent, candid , straightforward, and un-
hesitant manner. a
I find Supervisor Boyd's conduct to be unlawful inter-
rogation in violation of the employee Mayes' Section 7
rights and a violation of Section 8(aXI) of the Act.
Mayes attended the next union meeting on Thursday,
August 19 . Later that evening , about 8 :45 p.m., Mayes
received a call from Supervisor Boyd . Boyd asked
Mayes how the meeting went ; how many people attend-
ed; and how many had signed cards . Mayes told Boyd
that about 100 to 200 employees attended and that there
were "quite a few" cards turned in . Boyd then said that
a Respondent's investigated Mayes' subsequent and then current em-
ployment with Memphis State University and found that he did not state
in his application that he had worked for Baddour. Respondent subpoe-
naed Mayes' application and the custodian thereof from Memphis State
University and presented that evidence in an attempt to discredit Larry
Mayes. Thereafter, Mayes was recalled (by the General Counsel) and tes-
tified that after being discharged by Baddour he applied for jobs at sever-
al employers and was turned down (apparently blackballed). Mayes said
he believed that the reason he was turned down was the fact that he put
in his application that he was previously employed by Baddour and, fi-
nally, in self-defense, did not disclose that fact when he applied for the
job that he obtained with Memphis State University. In the circum-
stances, I conclude that Mayes' actions in that regard were excusable in-
asmuch as his and his family's livelihood were at stake. I credit his testi-
mony.
553
it did not sound too good . Mayes told him that it was
pretty good for the second union meeting. Boyd told
Mayes that he had better be careful . Mayes asked what
he meant, and Boyd said , "Just make sure you stay
busy."
Mayes reported to work about 11 p.m . that day. On
arriving he found that, contrary to past practice , no writ-
ten work assignment was left for him that night . He said
that as he punched in a supervisor was there . When he
started down to the warehouse two supervisors were fol-
lowing him . Mayes said that Boyd always left him a list
of work to be performed for that particular evening and
that this was the first time that no list was left for him.
He said that, inasmuch as he had no assigned duties, he
decided to go around checking expansion joints through-
out the warehouse , a job considered to be his "main pri-
ority on the third shift." He said he was to make sure
that the expansion joints (seams in the concrete) were re-
paired . As he proceeded around the warehouse checking
expansion joints with pencil and pad in hand from 11:30
p.m. to 3 :30 a.m ., Supervisors Lee Bourland and Rick
Smith followed him. Mayes said it was obvious they
were following him wherever he went . Normally they
seldom left their own areas . When they were paged, they
did not have time to answer the page , "for going on
along with me."
Mayes said that neither Bourland nor Smith was re-
sponsible for supervising him; that on that night shift,
there was not anyone present supervising him. He an-
swered to Supervisor Bobby Boyd every morning.
Mayes testified that he told Virgil Melton, Fred
Taylor, and Tyree Cordray about the supervisors follow-
ing him . When Mayes went to Cordray's and Miller's
area, they stopped and asked Mayes what he was doing
and he told them . Mayes then told them that if they
waited a minute one of them, Supervisors Ricky Smith
or Lee Bourland, would be in the vicinity watching him.
Miller then said, "Yes, there he is, right on the other
aisle." Cordray then told Mayes that he was being
watched by either Supervisor Smith or Bourland. Both
supervisors carried pads at the time . Mayes further testi-
fied that Supervisor Larry Hunsucker was also following
him although Hunsucker normally works the day shift.
Mayes' testimony was corroborated by witnesses
Virgil Melton and Tyree Cordray . Employee Kyle Wade
Love also testified that on a night in mid -August he no-
ticed Lee Bourland following Larry Mayes on five or six
occasions. He said that every time he saw Larry Mayes
go by that night , Bourland would come by a short time
after. He said also that he noticed Bourland following
Mayes on two or three other nights, "up until the time
that he was fired."
Mayes further testified that when he reported to Su-
pervisor Boyd at the end of the shift on Friday , August
20, he told Boyd that two people did not show up and
he had to assign their duties to two other employees.
Boyd asked Mayes what he had done that night. Mayes
told him that he went around checking the expansion
joints and looking for anything else in the warehouse
that needed to be done ; that inasmuch as Boyd did not
leave a list he did not know what else to do that night.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boyd told him , "That was good." Boyd then told Mayes
of a conversation he had with Maintenance Supervisor
Marvin Highfill. Boyd said that Highfill told him that he
knew that Mayes was the one that started , "that union."4
While Boyd was talking to Mayes, Chris Ramsey, Boyd's
immediate supervisor, approached . Boyd, Ramsey, and
Mayes then went to the seventh floor where Mayes was
told about a water line they instructed him to install.
About 8:15 a .m. Boyd asked and received from Mayes
the list of expansion joints that Mayes had prepared the
previous night . Mayes was asked to wait outside Boyd's
office while Boyd talked to Ramsey . About 5 minutes
later Boyd, Ramsey, and Mayes left and went to director
of maintenance Marvin Highfill 's office . In Highfill's
office, Boyd left per Highfill 's instructions . Highfill asked
Mayes if he liked his job and liked the people he worked
with. Mayes told him that he was unhappy about the in-
surance benefits Respondent was cutting . Highfill then
explained in detail why the insurance benefit had to be
cut. During the conversation Highfill received a phone
call and left. During Highfill's absence , Ramsey told
Mayes that when Ramsey was in Florida working for a
union contractor , the bottom fell out making it tough on
everybody who was in the Union. When Highfill re-
turned he told Mayes that he would have to write him
up because of his performance the night before. Mayes
explained to Highfill that because Boyd did not leave a
list he went around checking expansion joints5 and had
to assign employees to the cleanup crew . Highfill told
Mayes that he was being given a warning for his poor
performance.
On Sunday , August 22, Boyd called Hayes at home to
inquire about the meeting with Highfill and Ramsey on
Friday, August 20. Mayes told Boyd that Highfill gave
Mayes a warning for not doing his job. Boyd asked
Mayes if he had signed anything and Mayes told him he
had not. Mayes also told Boyd that he felt that Highfill
was about to fire him until Highfill got the phone call.
Boyd told Mayes that Leon Weatherford, vice president
of warehouse, prevented Highfill from firing Mayes, and
ended the conversation by warning Mayes to look busy.
Mayes further testified that from August 22-27 he no-
ticed First-Shift Supervisors Marvin Highfill , James Cox,
Chris Ramsey, Larry Hunsucker, and James Tarver on
third shift, wandering around the maintenance area.
Mayes' testimony in that regard was corroborated by Su-
pervisors Tarver, Cox, Highfill , and Ramsey who stated
that on one or two nights during that period they had
reported to third shift.
On Friday, August 27, Mayes was called into Marvin
Highfill's office in the presence of Highfill and Ramsey.
Highfill asked Mayes what he had done that night and
Mayes explained that he had been working on a water
line most of the night and that he had a problem because
they could not shut the pressure completely off and had
a hard time finding the cutoff valve. Mayes said that be-
cause of that he had to pack the water line full of
4 The warehouse was about a half a mile long and has concrete floors
with rubber material between the sections in order to allow for expan-
sion.
° At the time, Highfill checked the list of expansion joints prepared by
Mayes that was on Highfill 's desk.
bread[?) in order to solder it . Highfill then told Mayes
that they had reevaluated the situation the previous
Friday (August 20) and had decided that it was best for
the Company if they let him go . Mayes asked Highfill
why it took a week to reevaluate the situation and told
him that the only reason Highfill did not fire him the
week before was that Leon Weatherford would not let
him. Mayes was discharged on August 27.
It is noted that prior to August 20 Mayes had not re-
ceived a warning concerning his work . Mayes testified
that at the beginning of August Supervisor Ramsey told
him he was doing a great job . Supervisor Ramsey testi-
fied that on the night of August 26 he spent an hour
looking at a blueprint with Mayes trying to find the
cutoff valve . Ramsey and Mayes could not find the
cutoff valve so Ramsey told Mayes to hold off tapping
the line until Bobby Boyd came in that morning. Ramsey
also testified that not too long after Mayes had gone on
third shift (the latter part of June) Mayes had come to
see him and that Mayes was a little concerned that he
was going to be stuck doing concrete repairs and paint-
ing for the rest of his life, "and I explained to him that
we just had a backlog and that if he could get-when he
got caught up with that backlog we would go on to the
preventive maintenance program that we had on hold,
and that from all reports I had , he was doing a good job
and continue on and we would move on into the next
program."
Mayes' testimony concerning length of time it took to
move the water cooler is corroborated by Respondent's
witness Frederick Taylor, a maintenance employee who
testified that on the night of August 26 Mayes assisted
him in moving a water cooler and that it took about 12
to 13 hours to complete the job . Supervisor Ramsey tes-
tified that moving a water cooler would take a man and
a helper about 32 manhours or 2 full working days to
complete.
Boyd admitted calling Mayes on August 17 at his
home and asking Mayes how the union meeting went.
Boyd denies any other mention of the Union in that con-
versation . He also denies that that was the first time that
he called Mayes at his home . He said he called him
many times before to give Mayes work assignments. 6
Boyd denied discussing the Union with Mayes on
August 18 in Boyd's office in the presence of Keith
Townley, but admitted that he had a conversation with
Townley and Mayes. His testimony is in contradiction to
that of Keith Townley who said that there was a conver-
sation in Boyd's office in which the Union and union
cards were discussed.' In addition, Boyd admitted that
he had a conversation with Mayes after he received his
warning on August 20 and that he told Mayes he needed
to stay busy . I find that Respondent , on August 17-20
engaged in interrogation and created an impression of
° I credit Mayes and not Boyd . As previously stated , Mayes was a
credible witness. He testified in a calm, candid, consistent, and unhesitant
manner Boyd did not.
7 Townley's testimony that Mayes asked Boyd how many cards it
would take to get a union election, rather than the other way around, is
hardly believable. It strains credulity to believe that an employee would
ask a supervisor that question , especially an employee who had just at-
tended a union meeting and had initiated the union organization dove.
BADDOUR, INC.
surveillance of its employee Larry Mayes. Keystone Pret-
zel Bakery, 242 NLRB 492 (1979); Parkway Center Inn,
240 NLRB 192 (1979); Crown Zellerbach Corp., 225
NLRB 911 (1976); Florida Steel Corp., 224 NLRB 45
(1976).
Concerning the surveillance of Larry Mayes, Supervi-
sor Rick Smith testified that on the night of August 19
he worked the third shift to fill in for Supervisor Ricky
Lee. He said he noticed Larry Mayes about 11 p.m. near
the break area in unit 1 looking at timecards, and at
11:30 in units 2 and 3 counting timecards . Smith, howev-
er, denies that he was following Mayes at that time. He
stated he was merely going in the same direction as
Mayes . Smith did not speak to Mayes about Mayes' con-
duct. Mayes admitted looking at timecards , but only in
rack 1, and not racks 2 or 3 , for a short time to look for
the name of a person . Smith testified that he called
Warehouse Manager Charles Smith and told him what
he had observed about Mayes . Charles Smith told Rick
Smith to further observe Larry Mayes and take notes if
he needed to. Rick Smith testified that he observed
Mayes from the period 11:30 p .m. to 2 :30 a.m. He said he
noticed on several occasions that Mayes was not work-
ing. However , Rick Smith admits that he did not know
what Mayes ' job duties were.
Lee Bourland testified that he had a conversation with
Rick Smith that night. He said Rick Smith informed him
that Charles Smith had told Rick Smith to take general
notes on where Mayes was seen and what he was doing.
Bourland admits that Rick Smith told him to keep an eye
on this employee and if he saw him , write down a few
notes. Inasmuch as Bourland did not know Mayes, Smith
pointed Mayes out to him . Bourland stated that he saw
Mayes with a maintenance man, who was cleaning up
the bathroom in unit 2 , and on other occasions that night
he observed Mayes riding his cart or sitting on his cart
or talking to other employees . Bourland said that this
was the first time a supervisor in another area was asked
to watch or take notes on a particular employee who
was not under his supervision . Bourland testified that he
later informed Larry Hunsucker that he observed Mayes
not doing any work and that Rick Smith had information
regarding Mayes.
In a later meeting in Hunsucker 's office in which Rick
Smith and Lee Bourland were present , Rick Smith read
his report concerning Mayes to Hunsucker . Bourland tes-
tified that the reason he did not give a report was that he
felt Smith 's report had adequate information in it to get
Mayes fired . When asked why he was observing Mayes,
Bourland responded, "To try to get enough to fire him,
to prove that this man was not doing his job-if I could
prove that this man was not doing a job , I would recom-
mend that he be fired . I personally do not make the deci-
sion as to that man or any other man who gets fired."
When asked why he would have an opinion on that since
Mayes did not work for him and he did not know what
Mayes' job was , Bourland said he did not know what his
was, "the reason I have an opinion on that is due to I
was there observing the man and it was my opinion that
the man was not doing anything except riding a cart and
talking to other employees and not doing any feasible
work." When asked how he knew that Mayes' job did
555
not call for riding a cart and talking to other employees
about problems that could have occurred in maintenance,
Bourland admitted he did not know that . Bourland said,
"That's why we were trying to get information to pass
on to our superiors so they could check this out." He
also admitted that he had been employed by Respondent
in 1978 and became a supervisor in August 1981 and that
in all that time he was never asked to observe and make
notes on the performance of an employee who was nei-
ther under his supervision nor in his work area; that this
was the first time that he was asked to do that.
Larry Hunsucker , director of warehouse operations,
normally works on the first shift. He testified that he
came to work on the night of August 19 to make himself
available for any questions the employees may have con-
cerning the change of insurance benefits . He said the
reason he worked that particular night was that he had a
softball tournament in Tulsa , Oklahoma. He said he ob-
served Mayes in unit 2 , the picking and stocking area,
and on two occasions in unit 3. Hunsucker said he
thought it was rather odd for an employee to be riding
around in a cart and not doing any work, but he did not
take any action to talk to Mayes to find out what he was
doing. Hunsucker also testified that he had no knowl-
edge of Mayes' job duties . He did not know Mayes was
a leadperson or that his job required him to talk to other
employees.
It is obvious from the testimony of Mayes, Melton,
and Amsden, and from the admissions of Respondent's
supervisors, that Respondent engaged in surveillance to
discourage Mayes, the leading union adherent , and other
employees from engaging in union activity . Two days
after the first union meeting and the night of the second
meeting the first-shift supervisors were reporting to third
shift and following Mayes around the warehouse.
Knowledge of Mayes' union activities is not in question,
especially in view of the conversations he had with Su-
pervisor Boyd, including a conversation in which Boyd
told Mayes that he knew Mayes was the one that started
the Union. Supervisor Tarver admitted that he had a
conversation with two other supervisors, Cox and High-
fill, prior to Mayes' discharge in which he informed
them that Mayes was involved in union activity. At the
time, both supervisors said they had already heard that
he was involved in union activity.
Moreover, none of the supervisors who admitted en-
gaging in surveillance of Mayes had knowledge of
Mayes ' job duties or responsibilities . None was responsi-
ble for directly supervising Larry Mayes. None attempt-
ed to question Mayes regarding his job duties or his al-
leged lack of work performance that night . Bourland ad-
mitted that the purpose for watching Mayes was to try
to get enough information to fire him. Both Hunsucker
and Bourland testified to two incidents in which they no-
ticed Mayes "not performing his work in August 19." In
those incidents, Mayes could very well have been per-
forming his duties as leadperson in the maintenance de-
partment.
I find that the surveillance discussed above was coer-
cive and interfered with the employees' Section 7 rights
and thereby was in violation of Section 8(a)(1) of the
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. Soundesign Corp., 232 NLRB 993 (1977); Stoughton
Trailers, 234 NLRB 1203 (1978). Farah Mfg. Co., 202
NLRB 666 (1973).
1. Warning and discharge of Larry Mayes
Director of Maintenance Highfill testified that he
made the decision to give Mayes a warning on August
20. His decision was based on a report purportedly writ-
ten by Ricky Smith, a warehouse supervisor. The report
was dated August 20 and addressed to Charlie Smith.
However, contrary to Highfill's testimony and the face
of the report, Ricky Smith testified that he did not write
the report; that the report was drafted by Marvin High-
fill. Charlie Smith, the addressee, also testified that he
had never seen this report. The report described several
incidents in which Mayes was talking to other employees
the night of August 19. Although the record indicates
that several other employees talked to Mayes, Highfill
could not recall if those employees received a warning
or any other discipline.
Highfill testified that Mayes denied the content of the
report and stated that he was working. Highfill admits
that only Bobby Boyd, Mayes' immediate supervisor,
gave Mayes work assignments, yet Highfill made no at-
tempt to discuss the report with Boyd or confront Boyd
with Mayes' explanation of what he did that night. In
fact, Boyd was not involved at all in the decision to give
Mayes a warning . Highfill testified that on Friday,
August 27, he called Mayes into his office and dis-
charged Mayes, based on a report given to him by Su-
pervisor Chris Ramsey. The only supervisors present at
Mayes' discharge interview were Chris Ramsey and
Highfill. That Respondent had knowledge of Mayes' in-
volvement in the union campaign and engaged in survei-
lance of Mayes from the period of August 19-27, the
date of his discharge , as previously indicated , is not in
dispute. It is curious indeed that on the night that Mayes
first noticed that he was being followed his supervisor
failed to leave him a work assignment for that night. Re-
spondent also admits through a supervisor that the
reason Mayes was being followed on August 19 was to
get enough information on him to terminate him. In
other words, he was being "set up." Marvin Highfill, the
supervisor who discharged Mayes, admitted that he had
no knowledge of Mayes' job duties or responsibilities and
made no attempt to involve Mayes' immediate supervisor
in either the warning, dated August 20, or the discharge
on August 27. Although Highfill denied any knowledge
of Mayes' union activity at the time of Mayes' discharge,
Warehouse Supervisor James Tarver testified that in a
discussion with Highfill prior to Mayes' discharge he
told Highfill that Mayes was involved in the Union.
These direct contradictions between supervisors adds to
the conviction that Respondent engaged in a deliberate
campaign to fire Hayes for his union activity.
The General Counsel has proven by a preponderane of
the evidence that Mayes was placed under surveillance,
given a warning, and later discharged because of his
union activity . I find that the warning given Mayes on
August 20 and that the discharge on August 27 to be in
violation of Section 8(a)(3) and (1) of the Act.
2. Surveillance of third-shift employees
From the period of August 22-27, according to the
testimony of several witnesses , first-shift Supervisors
Marvin Highfill , James Cox, Chris Ramsey, Larry Hun-
sucker, and James Tarver came on third shift from time
to time and wandered around the maintenance area.
James Tarver testified that he was in the warehouse on
third shift on two occasions during that period. On
August 22 he was in the warehouse from 11 p.m. to 1
a.m. He said he came to discuss a problem with another
supervisor, James Cox, regarding another employee,
Alan Ursery. That conversation lasted only 30 to 40 min-
utes. Tarver also stated that he reported on third shift at
3:30 a .m. on August 26 to make himself available "to my
employees to ask questions about any problems they had
with the Union situation going on." Supervisor James
Cox testified that he reported on third shift on the morn-
ing of August 22 and August 25. He stated that the
reason he reported on third shift was to talk to an em-
ployee named Al Ursery and to give him a warning con-
cerning work performance. He said that conversation
lasted approximately 30 to 45 minutes . Cox also stated
that he reported to work on third shift on August 25 at 3
a.m. and left about midday just to see how things were
going on the shift "and have a little contact with the
people ." He said that he strolled through the warehouse
and made it a point to see all the people.
Marvin Highfill stated that he reported to work
Sunday night, August 22, because he wanted to see how
things were running and to talk to maintenance employ-
ees. Chris Ramsey testified that he was on the third shift
on August 26 making third-shift inspection . Ramsey also
admits that his purpose on third shift was to check on
Larry Mayes.
On the night of August 26, Ramsey testified he noticed
Mayes at 3:15 am . stopping his bicycle near a break
area, taking a pad and pencil , and making some nota-
tions . He said Mayes then proceeded on his bicycle and
although Ramsey admitted he had no idea what Mayes
was doing at the time, he took Mayes ' actions as break-
ing early for lunch. Ramsey said he did not question
Mayes about his activity because he was not Mayes im-
mediate supervisor.
The evidence discussed above convinces me that Su-
pervisors Tarver , Cox, Highfill, and Ramsey reported to
third shift during the period of August 22-27 to check
on the employees of third shift because that is where the
suspected union activity and union adherents were locat-
ed. It is clear from the testimony that each supervisor
had prior knowledge of union activity among the em-
ployees before they reported to work on third shift.
Tarver admits that he was told the night after the first
union meeting by employees Keith Townley, Mike
Bishop, and Alfred Oglesby that there had been a union
meeting . Tarver said he discussed this information with
Marvin Highfill and James Cox . Tarver also stated he
had a discussion with these two supervisors concerning
Larry Mayes' involvement in the union campaign.
Ramsey states he heard "some scuttlebutt " that there
was talk of union activity the week of August 16. Cox
testified it was reported to him by Jim Tarver that em-
BADDOUR, INC.
ployees were passing out cards . Both Tarver and Cox
testified that they reported on their shift to talk to an
employee, Alan Ursery . Neither supervisor explained sat-
isfactorily why he did not wait until first shift to speak
to Ursery or why he did not report to work a few min-
utes early on his own shift in order to talk to Ursery.
Tarver, Cox, Highfill , and Ramsey all admit that they
reported to third shift to check up on that shift. This ad-
mission, considering the timing of their visits , strongly
suggest their purpose was motivated by the ongoing
union campaign.
3. The discharge of employee David Cordray
David Cordray was an employee of Respondent from
June 1981 until August 20 , 1982. He worked on the third
shift as a forklift driver and his immediate supervisor was
Walter Webb, but during the week of August 16-20,
David McCullum was acting supervisor in place of
Webb.8
On Monday , August 16, Cordray was informed by
Larry Mayes about the union meeting to be held on
August 17. On that same Monday , Cordray asked Acting
Supervisor McCullum if he was planning to attend the
union meeting . McCullum responded that he might. Cor-
dray attended the meeting on August 17, signed a union
membership card, and took blank union membership
cards home with him that night . Cordray also placed a
Teamsters bumper sticker on his car before he reported
to work that night . When he arrived at work he noticed
a bumper sticker on employee Pat Amsden 's car, which
was parked next to Cordray 's car . 9 Neither Cordray nor
Amsden saw bumper stickers on any other cars that
night. In addition to the above, Cordray 's union activity
consisted of passing out union cards in Respondent's
parking lot during the period August 17-20.
Respondent 's parking lot is fenced in and scanned by
video cameras on a 24-hour basis . The cameras have suf-
ficient power to allow identification of individuals while
in the parking lot. It is also established that Respondent
issued identification stickers to its employees to be placed
on the bumpers of their cars, thus permitting identifica-
tion of the owner of any car in the parking lot by the
cameras or otherwise.
Another union meeting was held on August 19. On
Wednesday, August 18 , Cordray asked McCullum if he
was planning to attend that meeting the following day.
McCullum responded that he was not going to the meet-
ing; that he did not want any part of the Union , and that
' Walter Webb was a third-shift supervisor over approximately 10 em-
ployees and although he does not have the authority to hire employees,
he has the authority to recommend discharge . Webb's duties are to plan
work, assign work, give instructions , and generally oversee the oper-
ations and initial employee timecards . In Supervisor Webb's absence,
McCullum performed Webb 's duties. McCullum's regular job title is "De-
partment Head." There is no dispute that during the week of August 16,
McCullum was acting supervisor performing the duties of Supervisor
Walter Webb who was on sick leave during that time . I find that McCul-
lum was a supervisor and agent of Respondent within the meaning of
Sec. 2(11) and (13) of the Act during the week of August 16.
' Cordray's testimony was corroborated by Pat Amsden who testified
that there was a union bumper sticker on his car that night and he saw a
similar bumper sticker on Cordray's car.
557
the Union was bad for the Company . McCullum denied
both the August 16 and 18 conversations with Cordray.
On Thursday morning, August 19, all third-shift em-
ployees attended a meeting at the plant . After the meet-
ing, Cordray went to his work area to put away his be-
longings and then headed for the timeclock to punch
out. At that point , Acting Supervisor McCullum walked
up to Cordray and stated, "Might need you to work
overtime until 9 :00. Can you work?" Cordray testified
that he responded by saying , "No, I can't work today."
Cordray then left the plant without anymore having
been said by either McCullum or himself. The conversa-
tion took place about 8 a.m.
McCullum testified that he had asked Cordray if he
could work overtime and Cordray replied , "F-k it. I
am leaving."
The next day, about 7:15 a.m., Cordray was called into
Supervisor Mike Bond's office . Cordray gave Bond his
version of what happened concerning the request to
work overtime . Bond then told Cordray what McCullum
said Cordray's response was. Cordray was then told to
go back to work and as he was leaving Bond 's office,
Eason Camp, manager of picking and stocking , came by
and told Cordray to go back to Bond's office . While in
Bond's office, Cordray repeated to Eason Camp and
Bond his version of what had happened the day before.
McCullum then appeared and told his version of what
happened. Camp then asked McCullum if he was sure
that was what Cordray said . McCullum stated that, "he
wasn't sure and that he could have misunderstood."
Camp stated , "You have to be sure for anything to be
done." McCullum then said he was sure Cordray said it.
(That was according to Cordray 's testimony.)
During that meeting Cordray was discharged for in-
subordination . Cordray's position was that he did not use
profanity and that on many occasions he told McCullum
that he could not work overtime when asked, with impu-
nity . Cordray said that the reason that he could not
work overtime was that he had promised a friend that he
would help him run his father's junk yard . Concerning
that incident, former employee Dennis Gray testified that
he heard Cordray tell McCullum that he "wasn't going
to be able to work overtime today ." He further testified
that he did not hear any reply. Gray said the remarks
were made in a normal tone of voice and that the con-
versation took place about 10 to 15 feet away from
where he was standing . He said he heard no profanity
during the conversation.
In his testimony , McCullum denied telling Camp that
he was not sure what Cordray said . Respondent's posi-
tion is that the reason for Cordray 's discharge was for
the remark he made to McCullum and not for refusing to
work overtime . In that connnection, it is noted that
McCullum testified that he did not take the alleged com-
ment made by Cordray as a remark directed at him per-
sonally. McCullum also testified when asked whether
working overtime was mandatory or voluntary on the
part of the employees that he was never informed
whether it was mandatory or voluntary. When asked
whether he asked Cordray to work overtime in the past
he said that he had and that Cordray had agreed to work
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overtime on some occasions and that on other occasions
he "might have had something to do." Cordray could
not remember any specific occasion that Cordray had
not worked overtime when asked . McCullum said that
Cordray did not say anything else in the conversation
except what was stated above . McCullum was asked:
Q. Did you take that as a personal remark?
A. No sir. Not really.
Q. Now, it could have been stated, "You" instead
of "It", and then you would have taken it personal-
ly, I take it. Is that right?
A. Yeah. If he had said "You", I would have.
McCullum testified that he knew of no other employee
who had been discharged for making a similar comment
and also testified that he did not know that Cordray
would be discharged for making the remark that he al-
legedly made.
The General Counsel adduced evidence of other em-
ployees who used similar language in conversations with
their supervisors and cases of insubordination in which
the employees concerned merely received warnings but
were not discharged.
Assuming, arguendo, that Cordray did make that
remark when asked to work overtime, admittedly, the
remark was not directed at Acting Supervisor Cordray
personally . At most, it was an expression of disgust be-
cause, at the time, he had made other plans. Considering
the circumstances of the employee at the time (a commit-
ment to help a friend) and the testimony of McCullum
that he did not take the remark personally, I find it in-
conceivable that he would be fired for such a remark.
McCullum's testimony that he did not know that Cor-
dray would be fired for making the remark and Re-
spondent's policy that working overtime is voluntary,
not mandatory; Respondent's contention that McCullum
is not a supervisor, therefore, the remark was made to a
fellow rank-and-file employee; and considering the video
cameras scanning the parking lot on a 24-hour basis
wherein employees' cars (including those with union
bumper stickers) can be identified by the company-issued
permits also on the bumper, t 0 I am convinced that Re-
spondent knew of Cordray's union activity and that the
reasons given for discharging Cordray are pretextual.
Respondent's discharge of David Cordray is a violation
of Section 8(a)(3) and (1) of the Act.
4. The discharge of Patrick Amsden
Patrick Amsden was employed by Respondent from
August 27, 1978, until August 25, 1982. Before his dis-
charge he was employed as a department clerk. As de-
partment clerk he checked in goods received in the re-
ceiving department and filled out maintenance forms. He
also checked inventory accounts and made sure they cor-
responded with the computer printout. Immediately
10 Not only did Cordray have a union bumper sticker on his car as
well as the company-assigned identification sticker, but he also passed out
union membership cards to fellow employees in the parking lot in full
view of Respondent's video cameras Moreover, McCullum's testimony
was not given candidly He was nervous and hesitant Cordray was
straightforward and unhesitant I credit Cordray
before his discharge Amsden worked the third shift,
11:30 p.m. to 8 a.m., for about 2-1/2 years . His immedi-
ate supervisor was Ron Gatlin.
On August 17, Amsden was informed by fellow em-
ployee Larry Mayes of a union meeting scheduled for
that day. Amsden attended the meeting and signed a
union membership card . While there, Amsden picked up
blank union cards and a teamsters bumper sticker. From
August 17 until his discharge , Amsden passed out union
membership cards in Respondent 's parking lot before and
after work. On the night of August 17, Amsden placed a
union bumper sticker on his car before going to work.
As previously stated, Amsden also noticed a bumper
sticker on David Cordray's car in the parking lot next to
his car.
On August 23, at 1 a.m., Amsden was working with
another employee checking goods in . They were having
a casual conversation while working . Ron Gatlin ap-
proached Amsden and told him that soliciting during
worktime was not allowed and he could get fired for it.
Amsden responded that he did not know what Gatlin
was talking about . Gatlin then stated , "I don't want to
see you get fired."11
Later that day, about 7 a.m., Amsden was summoned
to Area Manager Shelley Smith's office. On arriving at
Smith's office, only Smith was present. Smith told
Amsden that he had heard some talk about a union out
in the warehouse. Amsden said that he also had heard of
such talk. Smith then told Amsden that the Company
could not function with the Union; they had to stay
price competitive; and if the Union got in the Company
would have to pay higher wages and it could not afford
it. Smith then told Amsden, "Look at International Har-
vester or Firestone. Those employees got a union, but
they are out of a job. The Union didn't do them any
good." Smith then said the Company had borrowed
some money and was having to pay high interest rates
and that is why it was not giving the employees any
raises and was having to cut back on benefits. Amsden
asked Smith how he was going to survive without an in-
crease in pay. Smith told him he had not received a raise
for 2 years. Smith then told Amsden that he did not have
to remind Amsden about his lateness situation. Smith
then told him that in the future they would be keeping
an eye on his tardiness and there would not be anything
he could do to help himself. Smith also told him that if
he did not quit "talking the union up" that they would
find a reason to fire him. Then he told Amsden that he
should get a hair cut and try to wear better clothes to
work. Amsden responded that he would get his haircut.
That conversation lasted about 30 or 40 minutes.12
Smith admits that Amsden was called into his office to
have a conversation. Smith said that the conversation
lasted only 5 to 10 minutes . He only told Amsden to cut
his hair and to try to clean up his appearance. Smith also
admits talking to Amsden about his attendance. Smith
also testified that he had known Amsden for about 5
years and in that time there was no indication that he
11 Gatlin denied this conversation took place.
12 Amsden was tardy three times during the previous 6 months
BADDOUR, INC.
was not honest . He said he had no reason to disbelieve
him because he had never caught Amsden in a lie.
On the night of August 23, Amsden reported to work
at 11 :30 and while working he noticed Supervisor Mike
Bond standing a couple of aisles away watching him.
Amsden said , "Hi" to Bond . About three or four times
that night, Amsden noticed Bond was just standing a
couple of aisles away (about 15 feet) watching him.
About 4:05 a .m., employee Virgil Melton told Amsden
that Mike Bond was watching him and Amsden ought to
be careful . About 4:30 a.m. that day, Amsden was sitting
on his forklift leaning to his right looking at his clip
board . He had checked some locations the day before
and he was going over his notes to make sure the right
number of cases of goods were in the right locations.
Amsden said that around that time he looked up and saw
Virgil Melton pass by . Melton had whistled while pass-
ing and Amsden nodded his head to acknowledge his
presence . Amsden then directed his attention back to his
clip board and when he looked up again he saw Mike
Bond standing to his left in front of his forklift. Bond
asked Amsden, "Are you having trouble keeping your
eyes open?" Amsden responded , "I don't know what
you're talking about . I am reading off of my clip board."
Bond again asked , "Are you having trouble keeping your
eyes open?" Amsden again responded , "I don't know
what you 're talking about . I am reading off my clip
board ." Bond then walked over to a phone and made a
call. Amsden testified that he did not see Bond approach
him because Amsden was looking down to his right at
his clip board when Bond walked up to his left. At the
time, the forklift was running and made a slight noise.''
Shortly after the above incident, Amsden hurt his
forger. He went to the emergency clinic late that night
and reported back to work the next day about 9 a.m.,
and clocked out.
Amsden's testimony is corroborated by Virgil Melton,
also a forklift driver on third shift supervised by Ron
Gatlin . Melton stated that he noticed Mike Bond walking
around and following Amsden . Melton also testified that
later that afternoon , Ed Yoches, an employee, told
Melton to stay away from Amsden because they were
setting him up to fire him and , later that morning,
Melton warned Amsden to be careful, that they were
trying to set him up.
About 5 a.m., Melton was riding through the ware-
house . He passed Amsden in one of the side aisles and
whistled and waved, thus corroborating Amsden 's testi-
mony . Melton said Amsden looked up and nodded his
head and went back to writing on his clip board. Melton
said that he had goods that he had to place in the next
aisle and as he was backing his forklift into that aisle, he
noticed Bond cross from the main aisle . Bond was about
20 feet up the side aisle . Melton then placed his goods
down and came out of the other end of the aisle. When
he drove past the aisle in which he saw Amsden he no-
ticed Mike Bond standing next to Amsden and that
Amsden had straightened up on his lift and had his arms
13 The forklift has an electric motor and a foot accelerator. If a person
fell asleep while the motor was running it would be dangerous if his foot
accidentally touched the accelerator.
559
crossed. Melton said that it was about 30 seconds to a
minute from the time he saw Mike Bond and the time he
placed his goods in location and drove past Amsden
again. According to Melton's testimony, Bond could not
have been standing next to Amsden for more than 30
seconds.
Employee Virgil Melton testified that he went to the
supervisor's desk that evening to deliver some bills of
lading and Amsden was there, "He had hurt his forger
and he told me he was getting ready to go to the doctor
and told me that Mike [Bond] had accused him of sleep-
ing and I asked him, `Was it when I come by and whis-
tled at him,' and he said, 'Yeah,' and I said, well-I told
him he didn't have nothing to worry about because he
wasn't sleeping. So, you know, don't be worried. I seen
him." Melton further testified that later that morning he
had a conversation with his supervisor, Ron Gatlin.
Melton said, "I asked him, you know, I heard from some
more employees that he was fixing to be fired." He said
that Gatlin responded that he did not know "that Mike
said he was asleep." Melton responded, "Yeah, and I
said, well, I went by there and he wasn't asleep then and
if Mike said he was asleep that he was a damn lie [sic]."
He said that Supervisor Gatlin had told him that Bond
had watched Amsden about 3 minutes. He then said that
Gatlin did not say anything else and, "I was just mad
and got on my lift and rode off, and went back to
work."
Mike Bond testified that he was working third shift on
the night of August 24 and his purpose for being on
third shift was that he was filling in for a supervisor,
Walter Webb, who had his wisdom tooth extracted the
week before.'4
Bond denied that he watched or followed Amsden on
the night of August 24. He stated that he found Amsden
around 4:25 a.m., sometime in that time range, asleep on
a forklift. According to Bond, he walked up to Amsden
to speak to him and Amsden was sitting on his lift with
his eyes closed and his head was bobbing. Bond testified
that he stopped and stared at Pat Amsden. He had never
stopped and stared at him at any other time.
Lunch for that shift was over at 4:05 a.m., at which
time the buzzer went off and everybody went back to
work. He said that around 4:25 or 4:30, "somewhere in
that time, anywhere from 15 to 25 minutes after the em-
ployees went back to work following the lunch break"
he noticed a lift sitting approximately three to four bays
into the aisle off to the left side of that aisle . Bond testi-
fied,
... and like I said, when I walked through I nor-
mally speak to everybody that I see and I looked up
and I was going to speak and Pat Amsden was sit-
ting on his lift and his eyes were closed and his
head was bobbing and so I didn 't speak. I just stood
there approximately about 2 minutes or so and then
14 It is noted that Bond also testified that David McCullum, the de-
partment head , takes over Webb's job responsibilities when Webb is
absent from work . That was also admitted by Respondent's supervisor
Eason Camp . No explanation was given why Bond and not McCullum
was filling in for Webb as had been the practice.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I walked up to the lift and his eyes were still closed.
I could see his eyes and his head was still bobbing.
And his head got to bobbing more and I walked up
to the lift and stood there approximately another
minute or two, a total of around 3 or 5 minutes
watching him and his eyes were still closed. His
head started violently bobbing and at one time it-
when it dropped , his eyes kind of opened up and I
could see him catch my image from the corners of
his eyes and at that time he rolled his head back to
the right away from me and started looking down
at the clip board next to him and I asked him, I
said , "Pat, what are you doing?" and he said,
"checking some locations" and I walked around to
the back side of the lift and asked him, I didn't ask
him at that time , I looked at the clip board to see if
there was something there you know , for him to
generate that type answer , and he had some receiv-
ing reports there and I asked him , "you know Pat,
you know , weren't you asleep?" and he said, "I was
checking some locations ." That is all he would say.
And at that time I turned around and walked over
to the phone which is about an aisle over and paged
the supervisor , Ron Gatlin , and reported the inci-
dent to him and told him, you know , I would get a
written memo to Shelly [Smith] which is Ron Gat-
lin's boss on this which I have just seen.
Contrary to the testimony of Amsden and Melton, Bond
testified that at the time the forklift was not running.
When questioned how long he observed Amsden asleep,
Bond repeated that it was "3 to 5 minutes.'
It is hardly credible that Bond saw the forklift, saw
Amsden on it, went there to greet him, found him asleep,
and stood there 3 to 5 minutes observing him without
saying a word until Amsden, on his own, awakened. In
addition, it is peculiar that Bond was filling in for Super-
visor Webb at the time with no explanation why McCul-
lum, who usually filled in for Webb, was not filling in
for him . Moreover, Respondent presented two employee
witnesses, Ed Yoches and Mike Ward , who testified that
they were in the area at the time Bond allegedly caught
Amsden asleep . Both witnesses stated that they did not
know whether Amsden was asleep or not , only that he
appeared to be sleeping . It is also noted that both Yoches
and Ward testified that Amsden was a friend of theirs,
yet, when they saw Amsden, if indeed they thought he
was asleep , neither made an attempt to wake him.
Yoches said, at the time of Amsden's discharge , August
25, he had no knowledge or even rumors of union activi-
ty. Yet, President Baddour addressed a memo to all em-
ployees dated August 24, concerning the Teamsters
Union.
As previously stated , Supervisor Shelly Smith in-
formed Amsden that the Company could not function
with a union and that unionized employees of Firestone
and Harvester were now out of a job . Smith further said
the Company could not afford the Union and the Union
would not do any good. Smith also threatened Amsden
with discharge if he continued to talk up the Union. I
fmd that the purpose of Smith's statements was to coerce
and discourage Amsden regarding his union activity, and
therefore in violation of Section 8(aXl) of the Act.
Amsden testified in a forthright , clear, detailed, and con-
sistent manner . Smith , on the other hand , was vague, in-
complete, and often evasive in his testimony.
Both Amsden and Melton testified in a calm, con-
trolled, and direct manner that they noticed Mike Bond,
a first-shift supervisor working on third shift at the time,
watching Amsden . I am convinced from the evidence
adduced that Bond 's purpose for reporting to third shift
was to watch the union activities of the third-shift em-
ployees, including known union adherent Pat Amsden.'s
I am convinced that Respondent discharged Pat
Amsden because of his activities on behalf of the Union.
Amsden's denial of sleeping on the job was corroborated
by Virgil Melton who testified in a clear, concise, and
detailed manner. He stated that Amsden was not asleep
and that he told his immediate supervisor, Ron Gatlin,
who testified that Melton told him that Amsden was not
asleep at the time Bond states he saw him sleeping. Al-
though Supervisors Camp and Smith had knowledge of
Melton's statement prior to the discharge , neither made
an attempt to contact Melton to shed light on the con-
flicting versions of what happened that night. In addition
to it being very unlikely that an employee would be
asleep in a visible area of the warehouse after being
warned that he was being set up and aware that he was
being watched because of his union activity , would be
asleep, and at such a short time after lunchbreak, which
ended at 4:05 a.m.
In all the circumstances, including the timing of the
discharge , the union animus displayed by Respondent
and the credible evidence of record , I fmd that Respond-
ent's reasons for the discharge of Pat Amsden were pre-
textual and that he was discharged because of his union
activity, in violation of Section 8(aX3) and (1) of the
Act.
5. Warning and transfer of employee Williams
Employee Jerry Leonard Williams was employed as a
cart control person. His immediate supervisor was Greg
Taylor. His duties as cart control person were to monitor
the operations of the tow rail and balance cart availabil-
ity. He also checked for proper usage of those facilities
and reported any mechanical problems. Williams' job
duties required him at times to ride a bicycle. In per-
forming his job, Williams had access to the entire ware-
house.
On September 22, Williams was subpoenaed by the
Union to appear before the Board at a representation
hearing and on that date he gave the subpoena to his su-
pervisor, Greg Taylor. After the hearing on September
22, Taylor approached Williams and showed him the
Teamsters bylaws and constitution and stated that Wil-
liams could be fined and assessed by the Union. He also
told Williams that if the Union goes on strike in New
York, that he could have money assessed out of his
check. Williams told Taylor that he was not interested
and that he wanted union representation.
15 Bond testified in a shifty and nervous manner. He was not credible
BADDOUR, INC.
On October 13, Williams was taken out of the cart
control position and placed in the consolidator depart-
ment and given the position of consolidator. His duties as
consolidator were to lift mail totes off the conveyor belt
and place them in empty carts to send to shipping. A
consolidator must lift the mail totes that weigh up to 150
pounds by hand. After the transfer, Greg Taylor contin-
ued to be Williams' supervisor.
A few days before his transfer to consolidator, Wil-
liams was riding his bicycle in shipping when employee
Michael Stokes told Williams that Stokes' supervisor,
Mike Smith, was asking him what went on at the union
meeting the night before. On hearing that, Williams went
to Supervisor Greg Taylor, and told him that if Supervi-
sor Mike Smith asks another question about the Union
that Williams would file charges against him through the
Teamsters Union. Taylor told Williams that he would
relay the message to Supervisor Smith.
After the transfer, Williams was told by Supervisor
Taylor to stay in unit 1. Williams was not allowed to go
around the plant or go back to his position as cart con-
trol person. Williams remained at the consolidator posi-
tion until he hurt his back lifting a mail tote on Novem-
ber 9. At the time of Williams' transfer to consolidator
there were two full-time consolidators, Steve Dodds and
William Davis. Since Williams' transfer, Dodds has
worked the consolidator position only part time.
Eason Camp, manager of picking and stocking, testi-
fied that he made the decision to transfer Williams from
the position of cart controller to consolidator on the
morning of October 13, the day Williams was trans-
ferred. He testified that the transfer was made because of
an increase in demand of "the work at the consolidator
job." Camp testified that he did not supervise the cart
control area nor did he directly supervise the consolida-
tor area. However, he said that his responsibilities were
to coordinate the whole picking and stocking area. He
said that he does not generally transfer people into the
consolidator position and he could not recall any hourly
employee besides Williams that he had moved from an-
other area to the consolidator area.
A few days after Williams was transferred to the con-
solidator position, he hurt his hand and was unable to do
consolidator work, so he was given the duties of house-
keeper in the consolidator area. When asked why he did
not place Williams back in cart control, Camp testified
that it did not enter his mind but that he did make the
decision to keep Williams in the consolidator area as a
housekeeper.
Camp admitted that as consolidator Williams was lim-
ited to one specific area of the warehouse and that al-
though it usually takes a week to train an employee in
consolidator position, Camp stated that to his knowledge
Williams had not worked the position of consolidator
prior to his transfer. He said he knew of other employees
who had worked the position of consolidator prior to
Williams' transfer, but he chose not to place them back
into the consolidator position. Camp said he knew em-
ployee John Anderson had been working in the consoli-
dator position prior to Williams' transfer, but he did not
know exactly what Anderson was doing that week with-
out checking the record. He said he was either filing
561
orders or stocking . Camp said he did not choose to take
Anderson and put him back into the consolidator posi-
tion, but did not explain why.
Although Respondent offered a list of floaters used in
unit 1 during the period before Williams' transfer, the
document was apparently introduced to show the in-
crease workload in unit 1 . However, the document also
shows a decrease in the use of floaters in unit 1 after
Williams' transfer . Camp testified that the purpose of
having floaters as well as temporary employees available
was to use them interchangeably . However, not one
floater or temporary employee worked the position of
consoliator during the period of Williams' transfer. Tem-
porary employees were used in the consolidator position
prior to Williams' transfer. When asked why a temporary
employee or floater was not used for the consolidator
position instead of transferring Williams, Camp respond-
ed, "They don't know how to do anything , any job that
we have, they have to be trained .... we do not real-
ize an immediate benefit from a temporary employee."
6. The handbilling incident
On October 14, Williams requested a vacation day off
and was granted it by Supervisor Greg Taylor. At 3:45
p.m. on his day off, Williams handbilled on behalf of the
Union outside the gate . As Williams was handbilling,
Taylor, with his wife at his side , approached Williams
and told him he could not handbill . Williams responded
that he had taken a vacation day and that he could do
anything he wished . Taylor then told Williams that he
could not distribute handbills on behalf of the Union and
that he would have to leave . Again, Williams reminded
Taylor it was his vacation day. Taylor insisted on Wil-
liams leaving . Williams then called "Shorty," another
handbiller, to assist him. Taylor then left as Shorty was
walking towards him.16
Taylor admits that he had a conversation with Wil-
liams at the gate while Williams was handbilling, but said
that Williams approached his truck and initiated the con-
versation . Taylor denied mentioning handbilling during
the conversation. He said he asked Williams if he
brought a doctor's excuse because Williams had led him
to believe that he had been sick . Taylor also denied that
Williams called Shorty over to where they were talking.
Taylor admitted, however, that he backed up his truck
and went back to Respondent to report the incident. He
said he wanted to report the incident because he was ap-
prehensive of bodily harm being inflicted on him because
Williams indicated that he was going to get Shorty.
Taylor said that because his wife was in the truck he felt
like he needed to report the incident . Notwithstanding
Taylor's alleged concern for bodily injury to him or his
wife , a few minutes later Taylor permitted his wife to
drive through the gate alone while he remained in the
plant.
Taylor denies any knowledge of Williams ' union activ-
ity prior to Williams' handbilling on October 14. He also
16 Williams' testimony was corroborated by employee Jeffrey Pope
who was also handbilling at the time of the incident . Pope testified that
he saw Taylor talking to Williams while Williams was handbilling and
that when Williams called Shorty over , Taylor left.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied that Williams gave him a subpoena in September
so that he could be out of work to attend the NLRB
hearing. Williams testified that he gave the subpoena to
Taylor on the morning of September 22.' 7
7. Williams' 90-day probation for unexcused absence
On November 8, about 7:30 a.m., Williams called the
plant and told Supervisor Taylor he had car trouble and
that he would try to get to work as soon as he could.
About 9:30 a.m., Williams called Taylor and informed
him that the timing char on his car was malfunctioning
and that he would be there as soon as he could. At 2:30
p.m., Williams again called the plant, but Taylor was un-
available. Williams spoke to Department Head Rick
Wakefield. Williams told Wakefield that he was unable
to get his car fixed and he could not report to work be-
cause he had no means of transportation. Williams also
told Wakefield that he would be in on the next day and
bring a receipt for the car repairs. On the following day,
Supervisor Taylor accompanied Williams to his office
where Supervisor Wayne Street was waiting. Williams
was then placed on a 90-day probation for an unexcused
absence.
In February, prior to the October incident discussed
above, Williams was given a personal absence (excused)
after calling Supervisor Taylor that he had car trouble
and would try to be in as soon as the car was repaired.
Williams could not make it to work that day either.
However, he did not get a warning but rather a personal
absence or an excused absence. In that connection, em-
ployees Jerry Britton and Virgil Melton testified con-
cerning days that they missed work because of car trou-
ble and neither was given a warning. Each absence was
treated as an excused absence.
Supervisor Taylor testified that Williams received dis-
cipline because the absence was his fourth and only the
first occurrences of car trouble permits an excused ab-
sence . However, contrary to Supervisor Taylor's testi-
mony, Williams' personnel file reveals that he had been
given several excused absences for car trouble.
Rick Wakefield, department head, testified that when-
ever he had a problem he would call in the same morn-
ing and request a vacation day and the request was
granted.
8. Williams is cut off from workmen's compensation
pay
Williams was injured on the job on November 9, and
on November 24 began receiving workmen's compensa-
tion pay from Liberty Mutual Insurance Company. Since
that date he has been receiving a check every 2 weeks.
On February 22, during his testimony in the instant
proceeding, Williams was questioned concerning the use
of the name "Lowell" Williams, which was not his first
name. Williams said that his brother Lowell filled out the
17 Because of the corroboration of Williams ' version of what took
place during the handbilling incident and because of Williams ' calmed,
controlled, and confident demeanor while testifying and inasmuch as his
testimony was given without hesitation and without even a hint of eva-
siveness , I credit Williams and not Taylor who testified in a guarded and
hesitant manner with several memory lapses
employment application and submitted it to Respondent
but when the job became available his brother had al-
ready found another job so Jerry Williams went in for
the job interview. Jerry Williams was hired in his broth-
er's place on the strength of his brother's job application.
He was hired as "Lowell," using his brother's name and
Social Security number on October 6, 1980.
In February 1981, Williams told Supervisor Eason
Camp that his brother Lowell had filled out the applica-
tion, but that he, "Jerry," was interviewed and hired and
that he was then using his brother Lowell's name and
Social Security number. On receiving the true story, in-
stead of straightening out the records at that time, Wil-
liams' Social Security number was changed from his
brother's number to his number. But the name "Lowell"
remained in his personnel file unchanged and Jerry con-
tinued to be known as "Lowell" Williams without objec-
tion from Respondent. Eason Camp corroborated Wil-
liams' testimony that Jerry Williams did tell him in Feb-
ruary 1981 that his brother Lowell had filled out the ap-
plication and that Jerry was interviewed for the job. Wil-
liams' personnel file reflects the change in Social Securi-
ty numbers as of February 1981.
On March 2, 1982, Williams called Liberty Mutual In-
surance Company because he did not get his workmen's
compensation check. He was told that a representative of
Respondent had called and said that he had used fraud
on the Company. Williams then called Fred Stearns, the
personnel manager of Respondent, and Stearns told Wil-
liams that he had used fraud against the Company.
Daniel Jenkins, claims manager of Liberty Mutual, testi-
fied that on February 25, 1983, his office was contacted
by Respondent regarding a possible discrepancy in signa-
ture on a claim that had been reported to them as the
individual named Lowell Williams, and as a result Wil-
liams' benefits were cut off.
Fred Stearns testified he did talk to Dan Jenkins of
Liberty Mutual and told him that he had found out that
the person who was drawing the workmen's compensa-
tion under the name "Lowell" Williams was actually an-
other person. He gave him the name but he denied tell-
ing Jenkins to cut off Williams' benefits. He said that he
waited to inform Liberty Mutual after Williams testified
because before the hearing he did not know that Lowell
Williams was actually Jerry Williams . He also denied he
had a desire or plan to retaliate against Williams for testi-
fying at the hearing. Stearns testified, however, that he
was aware of the fact that the Social Security number
had been changed from that of Lowell Williams to Jerry
Williams. Stearns also denied telling Williams that when
he called Liberty Mutual he told them that he had used
fraud against the Company.
I credit Williams who, although when sworn, testified
as Lowell Williams rather than Jerry Williams, reported
the true facts to Respondent on his own in February
1981, less than 4 months after he was hired (Williams is
still an employee of Respondent). Respondent is respons-
bile in view of the February 1981 disclosure by Jerry
Williams for Williams remaining on the job and being
identified as "Lowell" Williams instead of Jerry Williams
and given paychecks naming "Lowell" Williams. Even
BADDOUR, INC.
though Respondent was notified it did not change Wil-
liams' personnel records or recognize or pay him under
his proper name. Respondent condoned Williams' use of
the name "Lowell" Williams . Therefore, I do not hold
Jerry Williams responsible for continuing under the name
"Lowell" rather than his own name while at work.
I find also that Respondent is responsible for the insur-
ance carrier processing the workmen 's compensation
claim for "Lowell" Williams and making the checks out
to "Lowell" Williams . I do not consider Jerry Williams
as having created any fraud against Liberty Mutual or
Respondent. Williams received compensation checks that
he was entitled to, albeit under the name "Lowell." In
the circumstances, Respondent did not act in good faith
towards its employee Jerry Williams by causing a cessa-
tion of his workmen 's compensation pay. I find that Re-
spondent's act was malicious and in retaliation for Wil-
liams' appearing and testifying on behalf of the General
Counsel in this matter. I credit Williams' version and not
Stearns' version of the facts.
As previously stated, I credit Williams and not Taylor
with respect to the alleged interrogation of Williams'
union activity in violation of Section 8(a)(1) of the Act. I
find that Taylor was aware of Williams' union activity
prior to October 14. Williams was subpoenaed by the
Union to testify at the Board hearing on September 22,
and Williams handed the subpoena to his supervisor,
Taylor, in order to be excused to attend the hearing.
I also find that Williams was discriminatorily trans-
ferred to a more onerous job because of his union activi-
ty and in order to isolate him in a job requiring him to
remain in one area of the warehouse . Camp's testimony
was rife with inconsistencies and lacking in plausible ex-
planations for transferring Williams rather than transfer-
ring other employees who either had been trained for the
consolidator job or temporary employees or floaters who
were specifically employed for such emergencies. Camp
was evasive and nervous while testifying . Moreover, it is
significant that no other employee was placed in the con-
solidator position on a steady basis to replace him after
William left when he hurt his back.
The timing of the transfer , October 13, 2 weeks prior
to the election, reveals that Respondent sought to take a
known union adherent out of the main stream of the
warehouse and place him in a more onerous job restrict-
ing him to a specific location , in violation of Section
8(a)(3) and (1) of the Act.
Based on the testimony of employees Williams,
Melton, and Britton, all previously discussed herein, Re-
spondent 's policy was to give an excused absence if an
employee missed work because of car trouble . Indeed,
Respondent's own witness , Rick Wakefield, testified that
on occasion he would call in on the same morning and
request a day off and would be allowed either a day
without pay or a vacation day without any adverse con-
sequences . The conclusion is unavoidable, and I so con-
clude, that Respondent gave Williams a warning and
placed him on probation because of his union activity, in
violation of Section 8(a)(3) and (1) of the Act.
I also find that Taylor's conduct at the gate while Wil-
liams was handbilling was a violation of Section 8(a)(1)
of the Act. Respondent's conduct against Williams for
563
giving testimony in a Board proceeding is a violation of
Section 8(a)(1), (3), and (4) of the Act. Pickle Bill's Inc.,
224 NLRB 413 (1976); Richland Textile, 220 NLRB 615
(1975).
9. The transfer of employee Elton Hill
The complaint alleges that about October 29, 1982,
Respondent, at its Memphis , Tennessee facility , trans-
ferred employee Elton Hill to a less desirable position of
employment and assigned him more onerous work
becaue he joined , supported, or assisted the Union and
engaged in concerted activities for the purpose of collec-
tive-bargaining or other mutual aid or protection, in vio-
lation of Section 8 (a)(1) and (3) of the Act.
Elton Hill has been employed by Respondent for over
2-1/2 years as a forklift driver . He was involved in the
union campaign, attended union meetings , wore union
buttons, and had a union bumper sticker on his car. He
started wearing union buttons about a week before the
election. His job before the election was forklift driver in
unit 1 . His supervisor was Bobby McCullough. The elec-
tion was held on October 29, in unit 1, just 50 feet from
where Hill was working . Hill wore 10 union buttons on
the day of the election . On that day, Supervisor McCul-
lough approached Hill and told him that he was being
transferred to unit 3 to work on a rush trailer at door 68.
When he got to door 68 , Bo Berry, acting supervisor,
told him to go to door 77, as there was no rush trailer at
door 68 . Hill remained in unit 3 the rest of the day. Em-
ployee Steve Presley, who at the time was wearing a
"Vote No" button, was sent to unit 1 to work in Hill's
place.
On Monday, November 1, Hill reported back to unit 1.
Bobby McCullough sent him to unit 3, stating that he
was needed back there for another week . Hill reported
to Supervisor Jim Stacks in unit 3 . Stacks was passing
out the forklift sheets to the lift drivers . Everyone re-
ceived a forklift sheet except Hill. Hill was given a pro-
ductivity sheet and was required to unload the drop trail-
ers by hand . Steve Lenti , the material handler in unit 3,
was given a forklift to drive . After November 1, Hill re-
mained in unit 3 and was given the job of unloading
trailers by hand . He was not given a forklift unless a lift
driver was absent or on vacation . About a week after the
election Hill asked Bo Berry, acting supervisor, what his
job position was. Hill testified that Berry told him that it
was "job flunky, material handler, whatever I wanted it
to be."
When Hill was transferred on October 29, he was har-
assed by his supervisor . They stood around and watched
him. He was told that he could no longer punch in at 7
a.m., but had to punch in at 6:55 to 7 a.m. Hill 's testimo-
ny was corroborated by employee David Durrough.
Durrough also worked in unit 1 prior to the election.
The day of the election he had worn five union buttons
and, as in the case of Elton Hill, the polling area was just
50 feet from Durrough's working area. Durrough testi-
fied that Supervisor McCullough had instructed him to
go to the rush trailer in unit 3 and when they got to unit
3 there was no rush trailer . Employee Greg Gray was
transferred from unit 3 to work in Durrough 's place in
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit 1 . While in unit 3, Durrough retained his job title
and duties as receiving clerk. On December 15, Dur-
rough was transferred back to unit 1.
Bobby McCullough, supervisor of unit 1, testified that
he was not involved in the decision to transfer Elton
Hill. He said he did not know who made the transfer.
Similarly, Don Davis, assistant receiving manager, testi-
fied that he was not involved in the decision to transfer
Elton Hill and he did not know the reasons for his trans-
fer.
Respondent introduced exhibits that showed the per-
centage of time that Hill worked as a materials handler
prior to his transfer on October 29, 1982. However, Hill
stated that when he was in unit 1, that unit had no indi-
vidual material handler, so the forklift drivers in that unit
at times had to get off their lifts and help the truckdriv-
ers separate goods. The driver would then stack the
goods on pallets for the lift drivers to pull . However,
while in unit 3, Hill worked only as a materials handler,
unless someone was absent . And as a materials handler in
unit 3, Hill had to separate the material on the truck,
drag a pallet into the truck , and then stack the material
on the pallet. He did that exclusively all day.
It is clear from the evidence that Elton Hill, a known
union adherent, was transferred to a more onerous posi-
tion as a materials handler during the period of October
29 through December 17. His proximity to the polling
place on election day and his wearing of a union button
apparently was too much for Respondent. The result,
they transferred him out of there in a hurry. The fact
that Hill's immediate supervisor was not able to explain
the reason for the transfer, and no explanation was of-
fered by Respondent for the transfer, adds substance to
the allegation in the complaint . Moreover, Hill's testimo-
ny was not rebutted by Respondent. Accordingly, I fmd
that the transfer of Hill to a more onerous position
during the period of October 29 through December 27 is
a violation of Section 8(a)(3) and (1) of the Act. Serv-U-
Stores, 225 NLRB 37 (1976); Jack LaLanne Management
Corp., 218 NLRB 900 (1975).
10. The alleged surveillance by Respondent's
security guards
Employee Dennis Gray testified that in late August he
noticed the Union handbilling outside the gate at the
plant entrance. He said there was a guard parked in the
front of the gate inside the plant entrance who appeared
to be writing down license plate numbers of people ac-
cepting union literature then being distributed. The
guard would look up and down as the cars went by.
Gray said that the guard was present at the gate on
about two occasions while the Union was handbilling.
He testified further that he had not seen any guards at
the gate before or since the union campaign. Employee
Kyle Wade Love testified that in late August he noticed
a guard while he was driving through the gate on his
way home. He said the guard's car was parked facing the
gate and on that occasion he observed the guard sitting
and watching for about 5 minutes.
Employee Jeffrey Ruffin testified that on some occa-
sions when the Union was handbilling at the gate he no-
ticed the guards watching the handbillers. He said the
guards were parked outside the gate, facing the hand-
billers about 30 feet from the gate . He noticed the guards
at that location about three or four times . He said that
prior to the organization campaign , the guards were seen
only riding around in the parking lot or inside the build-
ing.
Employee Jerry Britton stated that on at least two oc-
casions he saw a guard parked near the gate while the
Union was handbilling . He said the guard was parked
just inside the gate facing the gate . The guards was look-
ing straight towards the gate where the Union was hand-
billing.
Employee Anita Neal testified that the day after she
received her Teamsters bumper sticker in late September
or early October, as she was driving through the gate
one morning to work she noticed two guards in one car
sitting at the gate watching the cars as they came in. She
said she backed her car into her parking place and stayed
in her car for a few minutes. While sitting there, she no-
ticed that the guards who had been sitting at the gate
drove down the aisle she was in. They passed her car
and stopped about two cars away from her. She said
they stopped and the guard on the passenger side wrote
something. She said that after the guards drove off she
noticed the parked car that was adjacent to the guards'
car had a Teamsters bumper sticker on it. The guards
drove down past three or four more cars and stopped
again, but this time she did not see if the guards wrote
anything down, but when they drove off she walked up
the aisle and looked at the car they stopped near and no-
ticed that car also had a Teamsters sticker on it. The cars
next to the two cars with the Teamsters stickers had no
Teamsters stickers . Neal also stated that in the past she
observed one guard per car in the parking lot, but never
two in one car. On the occasions described above, the
guards did not get out of the car to place notes on the
cars as they did when checking for Baddour parking
stickers.
Employee Danny Fitch testified that one day about
6:30 a .m. in mid -September he noticed two guards in a
car parked at the gate facing the gate . Fitch said a union
bumper sticker was on his car and, as he drove through,
he noticed the guard writing something down. Fitch
then parked about 30 yards away where he could see
what the guards were doing and noticed the guards
wrote something down when cars with union bumper
stickers came through the gate. Fitch said the guards did
not write anything when cars with no union bumper
stickers came through. Fitch said that every time the
guard would nod his head as if he were writing, Fitch
could notice a union bumper sticker on the rear end of
the passing car. He said he watched this activity for
about 15 minutes . He had not seen the guards at this lo-
cation prior or after that time.
Employees Leonora Richardson and Charles McDon-
ald testified on behalf of Respondent. They belonged to
a committee called BEAUR (Baddour Employees
Against Union Representation). Richardson testified that
the committee had handbilled at the gate alongside the
union handbillers. She said that the first two or three
times of union handbilling she was not at the gate. She
BADDOUR, INC.
further testified that there was no occasion when the
Union handbilled that she was not either handbilling at
the gate or passing through the gate . She said that she
noticed the guards parked at the gate on one occasion a
week before the election . She said that on that occasion
there were two men from Schlitz talking to another em-
ployee and there was talk of a gun . During that incident
the guards remained at the gate for 4 minutes.
McDonald testified that the first few times the Union
handbilled he was not out at the gate handbilling. He
said that there was no occasion during which he hand-
billed or passed through the gate that he noticed the
guards parked at the gate . McDonald also said that the
members of the committee paid for the material and leaf-
lets that they gave out at the gate. Richardson , however,
denied she paid for the literature that was handed out by
BEAUR. Both McDonald and Richardson testified that
they were pretty busy at the time they were handbilling
at the gate.
Tryce Barber, manager of assets protection, testified
on behalf of Respondent . He said that the security
people had standing orders that if there was any any un-
usual activity "on our perimeter to dispatch a guard to
see what's happening and report back ." He said that
when the first handbilling activity occurred a guard in-
vestigated the handbilling activity . When asked how he
knew that, Barber said he heard the guard talking on the
radio. When asked how the guard investigated. Barber
testified that "he went in a car. We have a patrolman, I
guess you'd call it . He was making his rounds and ra-
dioed in . He said that there was activity at the gate. I
heard him and I went back around there to see what was
going on." Barber asked the guard what he saw. The
guard's response was, "Just some people assembled at
our gate." The guard asked what should he do, "and I
just told him to back off and observe and make sure that
he didn't have any instances , you know , fist fights or
whatever; make sure the safety of the . people was in-
sured ; not block the gate, you know , just as long as it
was out of the way where people could get in and out of
the property . He didn 't have any trouble . He radioed
back and said everything was going fine." Barber said
the guard did not report anything to him after the hand-
billing activity occurred nor did they report the names
of employees who took handbills or who participated in
the handbilling activity . Barber also stated that he told
the guards to stay and observe other instances of hand-
billing.
It is clear from a preponderance of the evidence that
the guards were engaged in surveillance of the employ-
ees' union activities and I find such conduct to be in vio-
lation of Section 8(a)(1) of the Act. J. P. Stevens & Co.,
244 NLRB 407 (1979); Baptist Memorial Hospital, 229
NLRB 45 (1977); Shrewsbury Nursing Home, 227 NLRB
47 (1976).
11. The no-solicitation rule
In February 1981, Respondent prepared an employee
handbook for distribution to all personnel . On page 24 of
that handbook appears the following provision:
565
To avoid interruption of work and complications
and distractions in our operations, employees are
not permitted to sell anything, distribute or post lit-
erature or other matter, make speeches or collec-
tions, or engage in any kind of solicitation during
their working time , or in any way to interfere with
the work of other employees.
The General Counsel alleges that that rule is a violation
of the Act. In addition , the promulgation and mainte-
nance of the rule are alleged to be violative conduct
interfering with the employees free choice in connection
with the October 29, 1982 election.
Respondent argues that in response to the change in
Board law concerning rules such as that quoted above
(TR. W., Inc., 257 NLRB 442 (1981)), Respondent re-
viewed its no-solicitation/no-distribution rule and deter-
mined that a clarification of the rule was necessary to
comply with new Board law. Respondent contends that
the clarification was made in the form of a notice to em-
ployees, dated November 2, 1981 , and posted on every
bulletin board in Respondent's entire facility . That notice
reads as follows:
NOTICE TO EMPLOYEES
In our employee handbook, there is a rule which
outlines when and where you cannot solicit your
fellow employees, to insure there is no misunder-
standing about this, employees are not permitted to
solicit for any cause during the time they are sup-
posed to be working or in any way which would
interfere with the work of others. These types of
activities are only permitted during non-work peri-
ods such as lunch , rest periods, and before and after
work.
Respondent contends that the notice was posted
throughout the facility and has remained continuously
posted since the first week of November 1981 . Respond-
ent also contends that the bulletin board form of commu-
nication was selected because it ensured that the change
in the rule would immediately be brought to the atten-
tion of all employees.
Respondent further contends that as the employee
handbook had been prepared only 6 months before the
announcement of the Board 's decision in T.R. W., Inc.,
supra, Respondent's management felt that it was unneces-
sarily costly and inefficient to order the republication of
the entire handbook . Respondent contends further that a
notice to employees bearing the same clarification lan-
guage is now inserted in all employee handbooks.
Unfortunately that notice to employees bearing the
same clarification language was not either given to all
employees to insert in their own handbooks nor inserted
in all employee handbooks prior to the organizational ac-
tivity that took place prior to the October 29 , 1982 elec-
tion . It is a well-established legal principle that an
amendment or a change in a rule should be made by the
same medium as the publication and distribution of the
rule. There would have been no doubt whatsoever con-
cerning the clarification of the rule and notice to the em-
ployees if the employees had been provided with the
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
written clarification personally as they were provided
the employee handbooks and manuals and, indeed, an-
tiunion literature during the organization campaign. This
should have been done at the time the rules were posted
on all employee bulletin boards in the plant. It would not
have been necessary for the Employer to republish the
entire handbook . All that was necessary to be done was
for the Employer, at the time it posted the change on the
bulletin board , to give each employee a copy of the
change and to tell that employee to insert it in his per-
sonal copy of the handbook. There is no evidence that
Respondent did that.
Supervisor Don Davis testified that that was the only
rule and there were no attachments or amendments to
the rule as it is shown in the employee handbook. Em-
ployees Pat Amsden and David Durrough also testified
that there were no attachments or changes to the solici-
tation rule as it is written in the employee handbook.
Respondent 's witness Don Eure, personnel manager,
who testified that since November 1981 clarification of
the solicitation rule has been posted on Respondent's bul-
letin board . However, contrary to Eure's testimony,
Larry Mayes denied ever seeing the clarification of the
solicitation rule on Respondent 's bulletin board.
Respondent's employee Jerry Williams stated that al-
though he read the bulletin board often he has never
seen a clarification of the solicitation rule prior to the
hearing and has never seen it on Respondent's bulletin
board . Respondent's witness Don Eure testified that he
prepared the clarification of the solicitation rule in No-
vember 1981. He also testified that he was also involved
in the preparation of the personnel manual that was dis-
tributed in February 1982 . He testified that the personnel
manual reveals the policy after the clarification . The per-
sonnel manual provision that was received in evidence as
General Counsel 's Exhibit 22 reads as follows:
To avoid interruptions of work and complications
or distractions in our operations , employees are not
permitted to sell anything , distribute or post litera-
ture or other matter, make speeches or collections,
or engage in any kind of solicitations during the
time they are supposed to be working or any way
interfere with the work of other employees.
Although Eure testified that the personnel manual so-
licitation rule quoted above reflected the change after
the clarification, a comparison of the personnel manual
with the notice to employees, also quoted above, reveals
that the significant clarifying sentence is not included
and, thus, the rule in my view is ambiguous and invalid
on its face under Board law . The omitted sentence reads,
"These types of activities are only permitted during non-
work periods such as lunch, rest periods, and before and
after work."
Having found that the method employed by Respond-
ent to effectuate a change in the rules, i.e., posting on
plant bulletin boards rather than giving each employee a
personal copy of the clarification for insertion in his
copy of the handbook is not sufficient to comply with
Board law , it is not necessary to resolve a credibility
issue involving testimony whether the notice of clarifica-
tion was posted on the employee bulletin boards or
whether the employees in fact saw them . In addition, the
testimony reveals that Respondent 's supervisors enforced
the invalid rule during the time that Respondent claims
the rule was validated by the posted clarification. (E.g.,
the discussion between Jerry Williams who at the time
was handbilling on his day off and his supervisor who
told him he could not handbill.) I find that , in the cir-
cumstances, Respondent has violated Section 8(a)(1) of
the Act by maintaining an invalid no-solicitation rule
contained in the employee handbook and the personnel
manual and has violated Section 8(aXl) of the Act in
each instance in which it attempted to enforce such a
rule.
12. Other alleged 8(axl) activity
Kyle Wade Love, who has been in the employ of Re-
spondent for 2-1/2 years as a tow rail mechanic, testified
that on September 14 his immediate supervisor, Jim
Tarver, called Love into his office . Love said that
Tarver explained why employee Leroy Mayberry had
been fired because he had heard Love tell other employ-
ees that too many people had been fired for little or no
reason. Tarver told Love that Mayberry was caught
sleeping on the job and that somebody else in the ware-
house had been caught sleeping and that they had to fire
him because the Company 's back was up against the
wall. Love testified that Tarver then went on the subject
of tow rail and conveyors and then talked about the
Union. Love said that Tarver told him that the Union
"would not help us if it got in there;, that he'd worked at
several other places that had had unions and he said that
they had so many regulations and rules and stuff to go
by that it made it hard to get all your work done and
that a lot of people got fired because they weren't able
to do it. He said that unions also caused businesses to go
out of business . He said that by paying too high wages
and too good benefits that the company couldn't afford
it." He then mentioned International Harvester and Fire-
stone as examples of companies going out of business be-
cause of too high wages . Tarver asked Love, "How
come the people wanted a union? and I told him mainly
because of the insurance benefits being cut."
Tarver , in testifying on behalf of Respondent, admitted
that he had a conversation with Love concerning em-
ployees sleeping on the job, stating that he told Love,
"We had fired other employees and what was fair for
one employee was fair for all, and that we had fired
Ricky Moore who was another one of my employees
prior to-sometime back." Tarver denied having any dis-
cussion with Love about the Union during that meeting.
He said, however, that he had a conversation with Love
prior to his going on vacation. He said Love approached
him in his office and made a statement, "to the effect
that he felt there was no job security, and due to him
bringing the conversation up, he said that he felt like that
he would have job security with the Union . I had a ques-
tion and answer sheet memorandum that dealt with secu-
rity, one of the questions , and I asked him what made
him feel that way. And that was the conversation that
we had that brought up the Union."
BADDOUR, INC.
Tarver said that he read out loud to Wade from a
memorandum that contained the question, "Can the
Union guarantee job security?" He continued, "The
answer was 'No.' Look around at all the people from
Firestone, John Morrell, Internationl Harvester and
others who are out of work. The Union couldn't guaran-
tee job security there. Real job security only comes from
a healthy competitive productive company. At Baddour
we are proud of the fact that no warehouse employees
and very few others have ever been laid off. That's job
security." Tarver said that they discussed tow rail carts
during that conversation and the conversation was initi-
ated by Love and that is how he initiated it with the sub-
ject of tow rails . Tarver admits that they discussed when
Tarver was a member of a union. Tarver then testified,
"I told Wade that I once belonged to a union at my
prior employer and Wade Love-I explained to him the
Union didn't seem to accomplish anything for me or the
other employees that were members of the Union. He
paid the dues to the Union and we didn't seem to ever
get any benefit from it-118 I fmd Respondent violated
Section 8(a)(1) of the Act as alleged in the complaint.
Jerry Britton, who has been an employee of Respond-
ent for 4 years as a stocker under the supervision of Don
Parker, testified that in late August Area Supervisor
Charles Smith called him into his office. Smith asked
Britton what he thought these people outside of the gate
wanted from him and other employees. Britton told
Smith that they wanted to help the employees of Re-
spondent. Smith told Britton that he did not think so and
that he thought they just wanted their money. Britton re-
sponed, "They can't get what we don't have." During
that conversation Smith also asked Britton how his little
girl was doing and at the end of the conversation Smith
asked Britton if there was anything he could help him
with or anything of that situation that he could help him
with or to let him know.
Britton's testimony was not rebutted by Respondent.
Inasmuch as the employee in this case was called to Su-
pervisor Smith's office, which in itself has a coercive
effect when interrogated about his feelings about the
Union, I find that even though it appears to be a friendly
conversation, it is violative of Section 8(a)(1) of the Act.
In addition, it appeared to be a solicitation of employee
grievances when he asked him if there was anything he
could help him with to let him know. TRW-United
Greenfield Div., 245 NLRB 1135 (1979); Town & Country
Supermarket, 244 NLRB 303 (1979).
Employee Jeffrey Pope, who was employed by Re-
spondent from September 1 to October 6, 1982, as an
order picker under the supervision of Hugh Allen, testi-
fied that in mid-September Hugh Allen came to him and
asked him how he felt about a union. Pope responded
that he did not know anything about a union. Allen
asked if there was anything he needed to know. Pope
stated, "Not really." He then told Pope if he had any
questions about a union, "don't hesitate to ask him or
18 Tarver's testimony was given in a confused manner and his memory
was not good. I credit Kyle Love and I do not credit Jim Tarver. Love's
testimony was given in a clear, direct, and detailed manner . Moreover, at
the time he gave his testimony, Love was an employee of Respondent.
567
Mike Bond." Allen took him to Bond's office and Bond
asked him how he liked his job and whether he was
having any problems, and then asked him how he felt
about the Union. Pope responded that he did not know
because he did not have a union job. At that point Bond
responded , "They didn't want a union because the union
would be bad on the company and that if they could
afford to give us a raise, they would. But due to inflation
they couldn't." He said that the conversation took place
in the presence of Allen, Bond, and himself and lasted
for about an hour.
Allen admits having had a conversation with Pope in
mid-September but stated that Pope initiated the conver-
sation and that Pope asked him if he could vote in the
election. Allen said he merely answered Pope's questions
and told him that he would fmd out and that was the
end of the conversation. Pope, on the other hand, testi-
fied that it was at a later date, after the two conversa-
tions with Allen, that he asked Allen if he would be eli-
gible to vote in the election. Allen admits that he
brought Pope to Bond's office and that Pope did not re-
quest the meeting and that both Allen and Bond were
present in the office with Pope. Allen testified that Bond
told Pope about the history of the company and later ex-
plained the cut backs that were taking place that might
prompt union activity. Allen further testified that during
that conversation Pope had asked questions about the
Union such as. "Why are they trying to get in?" Allen
was not able to recall any other questions asked by Pope
but specifically denied any questions asked by either
Bond or himself about the Union. Bond admits the con-
versation took place but denies making any statements to
Pope about how he felt about the Union. He said he only
answered the questions Pope asked. 19 Bond testified that
Pope was hired on September 1, 1982, and that the con-
versation he had with Pope was on September 20. He
said when asked if he had a conversation with Pope con-
cerning the Union, his response was, "I had a conversa-
tion with Jeffrey Pope on company history." He said the
conversation stemmed, "from a question Jeff had ap-
proached Hugh Allen on. He came to Hugh Allen and
asked him on the 20th, that morning was the 29th, if he
would have a right to vote in the election. And at that
particular time, no one knew, you know, who would
have the right or who would not. And I was talking to
Hugh and I told him, you know, Jeff had just started to
work for us as an order picker trainee. He had no idea of
company history, what the company had done in the
past for the individuals and I told him, you know, that I
could get together with Jeff and give him-a list of com-
pany history, things we had done in the past, why the
benefits and things of this nature had been cut, were cut,
and discuss the whole thing with him." He said the meet-
ing lasted over 1 hour and 15 minutes. When Bond was
10 Hugh Allen was not a credible witness . He remembered specifically
what was not said in the conversation but could not remember much
about what was said in the conversations he had with Pope and Bond.
He said that all the questions about the Union were asked by Jeff Pope
and not by him or Bond . When asked what questions Pope asked, Allen
replied , "I do not remember any specifics , they were just general ques-
tions."
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked whether he ever asked Pope how he felt about the
Union his response was, "definitely not."
I find it difficult to believe that Bond , long-time super-
visor of the Company, and Allen, another supervisor, did
not know whether employee Pope would be eligible to
vote in the election . I also find it difficult to believe that
they would have called Pope to Bond 's office and lec-
ture him for 1 hour and 15 minutes about the history of
the Company if they did not in fact know whether he
was eligible to vote in the election. I believe they did
know that he was eligible to vote and I also believe, as
alleged in the complaint , that Bond asked Pope how he
felt about the Union in addition to the other questions
Pope said he asked , and I do not credit Bond or Allen
based on my observations of them during their testimony
and the convenient lack of memory of both Bond and
Allen on specific points.20
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with the operations of
Respondent , described in section I, above, have a close,
intimate relationship to trade , traffic, and commerce,
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Baddour, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Highway and Local Motor Freight Employees,
Local 667, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
20 By motion dated July 1, 1983, the General Counsel moved to cor-
rect the official transcript . That motion is granted By letter dated July 1,
1983 , Respondent submitted the following - Respondent's motion to strike
testimony and to reject evidence ; Respondent 's motion to reopen record;
and Respondent 's motion to have administrative law judge withdraw
from cases. Those motions are denied for lack of ment.
America is a labor organization within the meaning of
Section 2(5) of the Act.
3. Baddour, Inc. has engaged in unfair labor practices
in violation of Section 8(aXl), (3), and (4) of the Act, by
discharging, demoting, warning, interrogating, and sur-
veilling its employees.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Baddour , Inc., has engaged in and
is engaging in certain unfair labor practices in violation
of Section 8(aXl), (3), and (4) of the Act, I shall recom-
mend that it cease and desist therefrom and take certain
afirmative action , including the posting of notices, de-
signed to effectuate the policies of the Act.
I shall recommend that it cease giving effect to or en-
forcing the unlawful no-solicitation/no-distribution rule
discussed herein; cease its surveillance or giving the im-
pression of surveillance of its employees ' union activities;
interrogating its employees with respect to their union
activities; disciplining its employees, including discharge
warnings or demotions, because they have engaged in
union activity, or because they gave testimony before the
Board.
I shall also recommend that Respondent be ordered to
offer reinstatement to employees Larry Mayes, David
Cordray, Patrick Amsden, Jerry Williams, and Elton
Hill, to their former or substantially equivalent positions
and to make them whole for any loss of earnings they
have suffered as a result of the discrimination practiced
against them . Backpay provided herein with interest
thereon is to be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977); the removing from its
records reference to the discharges, demotions, and writ-
ten warnings and to notify the discriminatees in writing
that this has been done and that evidence of this unlaw-
ful conduct will not be used as a basis for any future dis-
cipline against them.
[Recommended Order omitted from publication.]