Bardcor Corp.

National Labor Relations Board - Board Decisions

Jun 7, 1984

270 N.L.R.B. 1083 (N.L.R.B. 1984)

BARDCOR CORP.
Bardcor Corp. and United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO-
CLC, District No. 8. Case 9-CA-17605
7 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 11 February 1983 Administrative Law Judge
Martin J. Linskey issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed cross-exceptions, a
supporting brief, and an answering brief to the
General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
The dissent would reverse the judge in order to
find 8(a)(1) violations in two incidents. The first in-
cident occurred when employee Maxine Dukes
asked Supervisor Mike Loreille why the Respond-
ent's president, Freeman, was taking pictures of
employees in the plant. Loreille's off-the-cuff
answer was that Freeman wanted something to re-
member the employees by after he fired them for
union activities. The dissent does not quarrel with
the judge's finding that the picture-taking was itself
innocuous. Therefore the burden of a finding of co-
ercion falls entirely on Loreille's remark. For the
reasons given by the judge we agree with him that
the remark was made in jest and was not attributa-
ble to management. All the surrounding circum-
L The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
In agreeing with the judge's conclusion that Freeman's photographing
of employees did not violate the Act, Member Hunter finds it unneces-
sary to rely on the judge's finding that Supervisor Loreille was acting as
a private party when he, in jest, suggested to an employee why Freeman
might be taking the pictures. Member Hunter also notes that the Board
has long held that "interference, restraint, and coercion under Section
8(a)l) of the Act does not turn on the employer's motive or on whether
the coercion succeeded or failed. The test is whether the employer en-
gaged in conduct which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the Act." American
Freightways Co., 124 NLRB 146, 147 (1959). See also El Rancho Market,
235 NLRB 468, 471 (1978), and National Apartment Leasing Co., 263
NLRB 15 (1982). Accordingly, he would not consider the subjective re-
action of Dukes here and in agreement with the judge finds that in light
of all the relevant circumstances the General Counsel has not established
that Loreille's remark can reasonably be considered coercive within the
meaning of the Act.
270 NLRB No. 157
stances confirm that conclusion. Because the state-
ment contains an implied threat if taken at face
value, the issue is whether it reasonably could have
been taken seriously and attributed to management.
The dissent places an unrealistic burden of the Re-
spondent that would not appear to be satisfied by
much less than a direct admission by the employee
that she did not take it seriously. This improperly
relieves the General Counsel of finally sustaining
the burden of persuasion that a coercive interpreta-
tion of the remark was reasonable. 2
The second incident is one in which the dissent
finds a coercive interrogation. All the evidence
before us is that a foreman asked an employee
where a union meeting was to be held. This part of
the conversation was overheard. The circum-
stances and even the identity of the employee are
unknown. We agree with the judge that there is in-
sufficient basis on which to find a violation. No
threats or other affirmative statements regarding
the employer's interest in the prospect of employ-
ees attending a union meeting have been shown.
No other unlawful conduct occurred. Such an iso-
lated question in an atmosphere free of coercive
conduct is not per se unlawful. Absent other evi-
dence that would make it coercive it was not un-
lawful. Stormor, Inc., 268 NLRB 864 (1983); Ken-
dall Co., 267 NLRB 963 (1983).
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER ZIMMERMAN, dissenting in part.
I agree with the dismissal of a number of the al-
legations of the complaint. However, I find merit
in the General Counsel's exceptions to my col-
leagues' and the judge's failure to find that Super-
visor Loreille's statement to employee Maxine
Dukes that the Respondent was going to fire em-
ployees for union activity, and Supervisor Rezack's
questioning of an employee as to the location of a
scheduled union meeting, violated Section 8(a)(1)
of the Act.
On 10 August 1981 two union officials distribut-
ed handbills outside the Respondent's plant to
begin a union organizing campaign. A meeting be-
tween employees and a union organizer was sched-
uled for 13 August. On 12 August, Respondent
President Freeman went through the plant taking
2 Surely the line of decisions which speaks of a showing that the em-
ployees understood the alleged threats were not to be taken seriously per-
mits the use of circumstantial evidence to determine whether or not it
would have been reasonable to take them seriously. See Lundy Packing
Co., 223 NLRB 139, 147 (1976).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
photographs of employees and supervisors. Em-
ployee Dukes asked Supervisor Loreille why Free-
man was taking pictures. Loreille answered that
Freeman wanted the photos as something he could
remember the employees by after they were fired
for union activity.
The judge found that Loreille's statement was
not coercive because it was inaccurate, because it
was not reasonable to suppose that Freeman would
want a picture for that reason, because Loreille
was known as a jester and, was speaking as a pri-
vate party, because Dukes had in the past social-
ized with Loreille, and because Dukes did not
appear to take the comment too seriously. These
reasons are insufficient, individually or collectively,
to dissipate the naturally chilling impact of such a
statement. Certainly they fall short of a showing
that Dukes "understood that [they were] not to be
taken seriously." Safeway Cabs, 146 NLRB 1334,
1335 (1964); Lundy Packing Co., 223 NLRB 139,
147 (1976).
Dukes expressly denied that she thought Loreille
was kidding. In this connection, the Respondent
elicited only the admission that Loreille had a sense
of humor. Dukes also testified that Loreille's state-
ment did not seem important enough to her at the
time to warrant telling any other employees.
Dukes' subjective judgment regarding the decision
to keep this information to herself, however, while
its effect is relevant in determining the appropriate
remedy, does not erase the coercive tendency of
the statement. Further, the judge's conclusion that
Loreille was speaking as a private party and not as
a supervisor attributes to Dukes a capacity, as an
employee, for filtering patently coercive messages
received from a person normally associated with
management that far surpasses what reasonably
could be expected of her in such circumstances. No
such disclaimer as the judge finds by implication
was communicated to Dukes. In short, Loreille's
statement was of the type that carries an unmistak-
able coercive tendency and places the burden on
the employer to communicate that which un-
equivocally would reassure employees of its inno-
cence. This the Repsondent has not done. See Dix-
isteel Buildings, 186 NLRB 393, 402 (1970).
Duke is also the source for the evidence of an-
other incident. Dukes overheard Supervisor
Rezack ask another employee where the 13 August
union meeting was going to be held. On hearing of
this inquiry, the Union changed the date of the
meeting.
The judge credited Dukes' testimony over Re-
zack's denial that he asked such a question. Never-
theless, in the absence of evidence of the circum-
stances in which it was asked, the judge found no
violation. In my view, a supervisor, as a represent-
ative of management, has no legitimate interest in
the location of a union meeting. The natural tend-
ency of such an interrogation is to create the im-
pression of surveillance of the employees' union ac-
tivities, especially where, as here, the meeting sig-
nals the beginning of an organizational effort. The
absence of evidence of the surrounding circum-
stances leaves that impression intact and, rather
than negating the violation, tends to confirm it.
For the foregoing reasons, I would find that the
Respondent violated Section 8(a)(1) by threatening
to discharge employees for engaging in union ac-
tivities and by coercively interrogating an employ-
ee regarding the employees' union activities.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On a
charge filed on October 27, 1981, by District No. 8,
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC (the Union) the National
Labor Relations Board by the Regional Director for
Region 9 issued a complaint, dated December 7, 1981.
The complaint, as amended, alleges that Bardcor Corp.
(Respondent) violated Section 8(aXl1), (3), and (5) of the
National Labor Relations Act (the Act) by engaging in
surveillance of its employees while they were engaged in
protected concerted activity, by threatening to close its
plant if its employees selected a union, by discharging
nine employees in order to discourage employee activity
on behalf of the Union, and by refusing to bargain with
the Union. Respondent denied in its answer that it violat-
ed the Act in any way.
Hearings were held in Hopkinsville, Kentucky, on
September 15-17, 21, and 22, 1982.
On the entire record in this case, to include posthear-
ing briefs filed by the General Counsel and Respondent,'
and on my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a Tennessee
corporation, has been engaged in the manufacture of cor-
rugated sheets at its Guthrie, Kentucky facility.
During the past 12 months prior to issuance of the
complaint, a representative period, Respondent, in the
course and conduct of its business operations described
above, sold and shipped goods, products, and materials
valued in excess of $50,000 from its Guthrie, Kentucky
facility directly to points outside the State of Kentucky.
i I have considered but have given no significant weight to Respond-
ent's motion to supplement the record. Since I credit the evidence at
hearing that Respondent planned on selling the flexo machine, the affida-
vit of William Freeman that 3 months after the hearing closed Respond-
ent sold the flexo machine is not greatly significant.
1084
BARDCOR CORP.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. LABOR ORGANIZATION
United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO-CLC, District No. 8, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint, as amended, alleges that Respondent
engaged in a number of unfair labor practices the most
serious of which was that Respondent discharged nine
employees in order to discourage employee activity on
behalf of the Union. The other allegations of unfair labor
practices were that Respondent engaged in surveillance
of union meetings, threatened to close its plant if the em-
ployees selected a union, and refused to bargain with the
Union. The General Counsel seeks a remedial bargaining
order on the grounds that Respondent's unfair labor
practices of surveillance, threats, and discriminatory dis-
charges were so pervasive and serious that they preclude
the holding of a fair election. I find that Respondent
committed no unfair labor practices and recommend that
the complaint, as amended, be dismissed in its entirety.2
On Monday, August 10, 1981, two union officials dis-
tributed handbills outside Respondent's plant in Guthrie,
Kentucky, to begin a union organizing campaign. This
was the third occasion that an attempt had been made to
unionize Respondent's employees, who on August 10,
1981, were 37 in number. The two prior organizational
campaigns were conducted by two different Teamsters
Locals in 1976 and 1977, respectively. On the two prior
occasions an election was held and the employees voted
to remain nonunionized. A meeting between Thurston
Smith, a union organizer, and employees was scheduled
for August 13, 1981.
On Wednesday, August 12, 1981, the day before the
scheduled meeting, William Freeman, president of Re-
spondent, went through the plant taking photographs of
employees and supervisors. When one of the employees,
Maxine Dukes, inquired of Supervisor Mike Loreille
why Freeman was taking photographs of people Loreille
replied that Freeman was taking pictures of employees
so that he would have something to remember them by
after they were fired for union activity.
Supervisor Tom Rezack was overheard asking one of
the employees where the union meeting was to be held
and plans were made to change the union meeting to
that very night, August 12, 1981. The employees were to
meet with the union organizer right after work in the
parking lot of the Cracker Barrell Restaurant in Clarks-
ville, Tennessee.
The union meeting was held in the Cracker Barrell
parking lot and 15 authorization cards were signed by
2 I find that the General Counsel, however, was substantially justified
in prosecuting this case even though I find in Respondent's favor. The
General Counsel did present a prima facie case. Only an analysis of all
the evidence and the making of critical credibility findings lead me to the
conclusion that the complaint, as amended, should be dismissed.
employees. Sometime around 6 p.m., while the meeting
was in progress, William Freeman, president of Respond-
ent, drove past the Cracker Barrell Restaurant on his
way home and looked in the direction of the parking lot.
Earlier that evening one of Respondent's employees,
who did not attend the union meeting, had told Freeman
that a union meeting was scheduled to be held in the
Cracker Barrell parking lot right after work.
At noon on August 13, 1981, Freeman called a meet-
ing of all employees at the plant. At the meeting Free-
man mentioned the union meeting of the prior evening at
the Cracker Barrell, presented to the employees a finan-
cial picture of Respondent's business, and told them what
their rights were regarding unionization and what a
union could and could not do for them.
On August 14, 1981, a second union meeting was held.
It is alleged that Respondent, acting through Supervisor
Mike Loreille, engaged in surveillance of this meeting.
On August 17, 1981, following a meeting of Respond-
ent's top management officials on August 16, 1981, eight
employees were discharged by Respondent.
On August 21, 1981, the Union wrote a letter to Re-
spondent requesting that Respondent bargain with it as
the authorized representative of a majority of the em-
ployees in the appropriate unit. An election petition was
thereafter filed but the election was blocked by the filing
of the unfair labor practice charges in this case. I will
discuss each unfair labor practice allegation separately.
A. Taking Photographs of Employees on August 12,
1981
William Freeman, president of Respondent, admitted
that he did take pictures of employees at the plant al-
though he could not remember the date that he did so. I
find based on other testimony that this picture taking oc-
cured on August 12, 1981. It is clear from the evidence
however that Freeman took pictures both of employees
and supervisors. Further, the plant was sufficiently small
that Freeman knew all the people who worked there and
could identify his employees on sight. I credit Freeman's
denial that he took the pictures in order to have some-
thing to remember those employees by who would be
fired for union activity. Taking pictures of employees is
not a violation of the Act per se. Freeman took pictures
of both supervisors and employees and I credit his testi-
mony that he did so because he was trying out a new
camera.
The only evidence to suggest that the photographing
of employees was violative of the Act is the statement
attributed to Supervisor Mike Loreille when he said to
employee Maxine Dukes that Freeman was taking pic-
tures in order to have something to remember those em-
ployees by who were going to be fired for union activi-
ty. Although Loreille denied that he said this I do not
believe him. I credit the testimony of Dukes that Loreille
said this to her when she asked why Freeman was taking
pictures. Loreille's statement was overheard by another
employee, Truman Johnson.
I conclude, however, that Loreille's statement to
Dukes was made in jest. Loreille's statement was inaccu-
rate since I credit Freeman's testimony that he was
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
simply trying out a new camera when he randomly took
pictures of both supervisors and employees. Further, it is
not reasonable to suppose that Freeman would really
want a picture of employees he was discharging for
union activity. Loreille, who was known in the plant as a
jester, was speaking as a private party and not in his ca-
pacity as a supervisor when he answered Dukes' question
in the manner he did. I note that Dukes had in the past
socialized with Loreille. Furthermore, Dukes did not
take it too seriously as evidenced by the fact that she did
not mention it to anyone until some time after her dis-
charge as destinguished from her reaction to a question
she heard Supervisor Tom Rezack ask an unidentified
employee. This is discussed below.
B. Supervisor Tom Rezack's question to Employees as
to Where the Union Meeting was to be Held
The General Counsel contends that the Act was vio-
lated when Supervisor Tom Rezack asked one of the em-
ployees where the union meeting scheduled for August
13, 1981, was to be held. Maxine Dukes testified that she
overheard Rezack ask this question of an employee but
she could not remember who the employee was. There
was no evidence as to what the unidentified enployee an-
swered in response to Rezack's question or what state-
ments, if any, preceded Rezack's question. Dukes told
Walter Henderson, a fellow employee, what she had
overheard and the meeting scheduled for August 13 was
moved up to August 12. Rezack denied that he asked
any employee where any union meeting was to be held. I
credit Dukes' testimony over Rezack's denial. I do not
find that Rezack necessarily lied since it is quite possible
he forgot that he asked this question of an employee.
Likewise, I do not find that Dukes was lying when she
said she could not remember who the employee was. In
the absence of any evidence to suggest that Rezack did
not merely ask a followup question with regards to a
subject matter brought up by the unidentified employee
it is difficult to find a violation of the Act. I will not find
a violation of the Act where this question is asked by a
supervisor without a shred of evidence to reflect the cir-
cumstances in which it was asked. I credit Dukes testi-
mony because of her general demeanor and because she
was corroborated by Henderson, who credibly testified
that Dukes told him what she had overheard and the
meeting was rescheduled as a result thereof.
C. Surveillance of Meeting at Cracker Barrell
Restaurant on August 12, 1981
Right after work on August 12, 1981, 16 of Respond-
ent's employees met with union organizer Thurston
Smith in the parking lot of the Cracker Barrell Restau-
rant. I find that the meeting took place at this site not
with the intention of holding a meeting where the union
official or some of the employees or both knew that the
meeting would necessarily be observed by management
officials of Respondent as counsel for Respondent implies
but rather the meeting was held at this site because it
was a location well known to all the employees and the
meeting was held on the parking lot rather than inside
the restaurant because the employees had just gotten off
from work, were hot and dirty, and were not interested
in entering the restaurant because of that.
The Cracker Barrell Restaurant does, however, sit
right on Highway 79, which is the main road between
Guthrie, Kentucky, where the plant is located, and
Clarksville, Tennessee, where Respondent's president
William Freeman resides.
Having considered all the testimony from both sides as
well as my own personal viewing of the Cracker Barrell
Restaurant and environs which viewing I undertook at
the express request of both the General Counsel and Re-
spondent, I find that Freeman drove past the Cracker
Barrell Restaurant on his way home, slowed down some-
what as he passed the parking lot of the Cracker Barrell
but did not come to a stop or near-stop, looked in the
direction of the Cracker Barrell Restaurant, and ob-
served people in the parking lot who he could not identi-
fy as employees of Respondent but whom he suspected
of being his employees since he had been told by em-
ployee William Campbell that a union meeting was being
held at the Cracker Barrell Restaurant that evening.
Counsel have cited no case law which requires an em-
ployer to go home by a different route than he normally
does in order to avoid the possibility of observing some
of his employees who are attending a union meeting.
Freeman's decision to go home when he did and how he
did (his normal way home was to go right down High-
way 79 past the Cracker Barrell Restaurant) was not
prompted by any intention to surveil a union meeting of
his employees. Freeman simply went home his normal
way and, while he did look in the direction of the Crack-
er Barrell Restaurant, this was not the type of activity
that would constitute a surveillance in violation of the
Act. See Porta Systems Corp., 238 NLRB 192 (1978), and
Larand Industries, 213 NLRB 197 (1974), where the
Board has taken the position that if employees are ob-
served doing something such as handbilling in public
where they can expect to be observed it is not surveil-
lance if they are observed. I do not credit the testimony
of employee Carl Forbes who testified that Freeman,
after driving past the Cracker Barrell in the direction of
his home in Clarksville, later returned driving his daugh-
ter's car.n I credit Freeman's denial that he returned to
the area of the Cracker Barrell Restaurant later that
evening driving another vehicle. There was testimony
that Supervisor Mike Loreille and Supervisor Tom
Rezack separately drove past the Cracker Barrell Res-
tuarant shortly after Freeman did. I do not find that
these two supervisors drove past the Restaurant that
evening. I conclude that the witnesses who said Loreille
and Rezack drove past were mistaken but not lying. This
was not alleged as a violation of the Act in any event.
D. Management's Meeting with Employees on August
13, 1981
At approximately 12 noon on August 13, 1981, Wil-
liam Freeman, president of Respondent, called a meeting
s I also do not credit Forbes' testimony that Freeman asked employee
Teddy Wheeler to spy on the union meeting of August 14, 1981, or
Forbes' testimony that Supervisor Bennie Bailey told Forbes that he was
being fired for union activity.
1086
BARDCOR CORP.
of employees. At this meeting it is alleged by the Gener-
al Counsel that the Act was violated in two ways:
(1) By Freeman advising the employees that the union
meeting the evening before at the Cracker Barrell Res-
taurant was known to management.
(2) By Freeman threatening to close the plant if the
Union was voted in by the employees.
I credit Freeman's testimony that he never said or
threatened plant closure if the employees selected a
union. Freeman did tell the employees that he knew
about the union meeting at the Cracker Barrell Restuar-
ant and joked that the Union was too cheap to take the
employees into the restaurant and buy them a cup of
coffee. Freeman then told the employees that he was
joking and that he did not know who had been at the
union meeting outside the Cracker Barrell Restaurant. I
do not find that Freeman's comments about the union
meeting the day before violated the Act in any way.
Freeman, in driving home his normal route, did drive
past the Cracker Barrell and he did look over but could
not make out individual faces.4 The employees saw Free-
man drive by and several so testified. Since I find that
Freeman did not violate the Act in driving past the
Cracker Barrell Restaurant and looking over at it as he
did so I conclude it is not a violation of the Act for him
to tell the employees that he did something which the
employees already knew he did since they had seen him
drive past. The impression of surveillance in violation of
the Act can be given to employees if an employer tells
the employees the names of employees who attended a
union meeting or who are leading the union movement.
C & J Mfg. Co., 238 NLRB 1388, 1391 (1978). Freeman
did make it clear to the employees that he could not
identify who of the employees had attended the Union
meeting.
E. Surveillance of Union Meeting of August 14, 1981
It is alleged that Supervisor Mike Loreille surveiled
the union meeting of August 14, 1981. Maxine Dukes tes-
tified that she saw Loreille sitting in his car on a service
station lot approximately 1 block or less from the union
hall where a union meeting was to take place. She be-
lieved that Loreille's wife and two others were in the car
with him. I do not believe that Dukes lied about seeing
Loreille but I find that she was mistaken.
The August 14 union meeting was initially scheduled
to be held at a union hall on Golf Club Lane in Clarks-
ville but was changed to a union Hall on Red River
Street in Clarksville when the union organizer and em-
ployees arrived at the union hall on Golf Club Lane and
learned that another meeting was already in progress.
Loreille could not have known about the change in the
location of the meeting in order to set up at the service
station near the Union Hall on Red River Street where
the meeting was eventually held. I credit Loreille's
denial and conclude, as stated earlier, that Dukes was
' While Freeman may not have specifically recognized any faces he
certainly suspected that these were his employees because how else was
he able to tell the employees at the August 13 meeting that the union
organizer had not invited them inside the restaurant for a cup of coffee.
mistaken. Accordingly, there was no surveillance and no
violation of the Act.
F. Employee Discharges on August 17, 1981
It is alleged in the complaint that nine employees were
discharged by Respondent on August 17, 1981, in order
to discourage employee activity on behalf of the Union.
Two of the allegedly discharged employees, I find, were
not discharged at all. Walter Henderson, an active union
supporter, was not discharged but accepted another job
paying more money at the Thun Corporation and quit
his job with Respondent. After accepting a new job at
Thun Corporation where he was to start the very next
day Henderson came to work at Respondent's plant and
was telling fellow employees at Resnondent's plant what
his benefits would be at Thun. When Supervisor Bennie
Bailey found out that Henderson was quitting at the end
of the day he told him he should leave right then rather
than go around telling the other employees what a good
deal he was getting at Thun Corporation. Henderson's
leaving the employ of Respondent was not related in any
way to union activity. Keith Burch, another alleged dis-
criminatee, was also not discharged. Burch voluntarily
quit several days after August 17. He was later rehired
by Respondent. Burch quit in part because of working
conditions (he was working too hard) which working
conditions the General Counsel maintains were the result
of the discriminatory discharges and therefore Burch's
quit was really a constructive discharge. I do not agree
with the General Counsel because I find that the other
discharges were not motivated by union animus but
rather were motivated by legitimate economic consider-
ations. The employees were not discharged to discourage
employee activity on behalf of the Union.
I credit Freeman's testimony that it was during the
week of August 10, 1981, that his analysis of Respond-
ent's financial position was completed. This analysis re-
sulted in Freeman concluding that the flexo machine
(box maker) should be sold, new equipment purchased,
and eight employees laid off. A meeting was held on
Sunday, August 16, 1981. In attendance at this meeting
were Freeman, Supervisors Tom Rezack and Mike Lor-
eille, and Plant Superintendent Bennie Bailey. The flexo
crew foreman, Paul McCaleb, a supervisor, was not
present since he was being let go along with eight em-
ployees. There is credible evidence in the record to sup-
port Respondent's assertion that there was insufficient
work for the flexo machine to keep its crew busy and
this had been the case for some time. The flexo machine
was put up for sale immediately following the termina-
tions but not sold by the time of the hearing. s The sub-
ject matter of the meeting was to decide which eight em-
ployees to terminate. The initial determination made at
the meeting was to keep those skilled employees who
were essential to Respondent's operation and with regard
to the remaining unskilled employees to keep the top
seven and discharge the remaining eight. In deciding
s As alluded to above in En. 1, Respondent's motion to supplement the
record contains an affidavit from Freeman that the flexo machine was
sold in December 1982.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who to retain and who to discharge the factors consid-
ered were work performance (to include attendance),
versatility, and potential for advancement (i.e., ability to
learn new skills). I credit Freeman's testimony that the
discharges were motivated by economic concerns and
not because of the union organizing campaign and I
credit the testimony of Freeman further that the individ-
uals selected for discharge were not selected because of
their prounion sympathy. The eight employees selected
for discharge on August 16 and discharged on August 17
were John English, Charles Sullivan, Charles Unkel,
Carl Forbes, Truman Johnson, Maxine Dukes, Jeannie
Hernandez, and Jerry Lee Morrow.
The evidence reflects that the discharged employees
were not replaced by new employees. Of the eight em-
ployees selected for discharge one of them, i.e., Charles
Sullivan, had not signed a union authorization card or at-
tended either of the two union meetings. The remaining
seven discharged employees had all shown interest in the
Union but Respondent had articulated reasons for select-
ing them for discharge. These reasons are spelled out in
detail in Respondent Exhibit 7. 6 It is noted that all seven
unskilled employees selected for retention had signed an
authorization card7 and most had also attended the
August 14, 1981 union meeting.8 In addition, many of
the skilled employees retained had signed authorization
cards. 9
Documentary evidence, which I credit, discloses that
no new employees have been hired by Respondent and
at the time of the hearing in this case Respondent had
less employees than it did immediately after the dis-
charges of August 17, 1981, and Respondent had a better
rate of production than it did prior to the discharges of
August 17, 1981.
6 John English, although considered a good employee, had quit once
before and had only been back on the job for 10 days as of August 16.
English was later rehired by Respondent. Charles Sullivan was also con-
sidered a good employee but was the least experienced mechanic on the
payroll. Sullivan was also later rehired. Charles Unkel had only been
working for Respondent for 10 days and was interested in returning to
school. Carl Forbes could not accurately count sheets, which was a job
requirement, nor had he demonstrated an ability to advance. Forbes was
rated as only a fair employee. Truman Johnson was perceived by Re-
spondent's management as not being a good sheet catcher (another job
requirement) and his work performance was thought to be unsatisfactory.
Maxine Dukes could not count sheets accurately and was not thought to
have much potential for advancement. Jeannie Hernandez would not
catch sheets and had personal problems that interfered with her work
performance, e.g., a lot of personal telephone calls during the workday.
Jerry Lee Morrow had a heart condition and had advised management
that he was looking for another job. Morrow's physical condition limited
what he could do. The selection of employees to be discharged because
they have personal problems or a physical disability may be a "mean"
thing to do but it is not a violation of the Act.
7 South, Wheeler, Whitlock, Shackelford, Sherrod, Henderson, and
Brian Face. Shackelford, Sherrod, Henderson, and Brian Face were also
at the union meeting at the Cracker Barrell Restaurant.
s South, Whitlock, Shackelford, Sherrod, and Brian Face.
D Mimms, Mallory, Ronnie Face, Sammie Keatts, Mosley, and Burch.
As noted above Respondent was the subject of union
organizing campaigns twice before and in both instances
a majority of the employees voted to remain nonunion-
ized. Respondent has been in operation since 1975 and
William Freeman has been its president for the entire
time. I credit the testimony of employee Doyle Knight, a
truckdriver for Respondent who was a union advocate in
the past and whose prounion sympathies were well
known to Freeman. Knight's testimony was that he
never experienced any discrimination from Respondent
because of Knight's) prounion support. Orman Smith's
testimony is also credited. Smith was an active union
supporter during a prior organizing campaign and he
was not discriminated against by Respondent in any way.
I conclude that Respondent has shown that the eight
discharges were not motivated by union animus but
rather for legitimate economic reasons only.
IV. REFUSAL TO BARGAIN
As of August 16, 1981, prior to the discharges, a clear
majority 20 of Respondent's approximately 37 employees
had signed union authorization cards. On August 21,
1981, 4 days after the economically motivated discharges
13 of Respondent's 30 employees had signed cards. The
Union's written request of August 21, 1981, that Re-
spondent bargain with it was turned over to Respond-
ent's counsel by Freeman. A scheduled election was
blocked due to the filing of these unfair labor practice
charges on October 27, 1981. Since I have concluded
that Respondent committed no unfair labor practices a
remedial bargaining order pursuant to NLRB v. Gissel
Packing Co., 393 U.S. 575 (1969), would be highly inap-
propriate.
CONCLUSIONS OF LAW
1. Bardcor Corp. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Work-
ers of America, AFL-CIO-CLC, District No. 8, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in any unfair labor
practices as alleged in the complaint, as amended.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' o
ORDER
The complaint, as amended, is dismissed in its entirety.
10 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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