Bartels & Shores Chemical Co.

National Labor Relations Board - Board Decisions

Mar 19, 1985

274 N.L.R.B. 1034 (N.L.R.B. 1985)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bartels & Shores Chemical Company and Ronald
Upshaw . Case 17-CA-11713
19 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 19 September 1984 Administrative Law
Judge Robert M. Schwarzbart issued the attached
decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Bartels &
Shores Chemical Company, Kansas City, Missouri,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
I 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
2 In adopting the judge's decision, Chairman Dotson and Member
Hunter find it unnecessary to rely on the judge's small-plant doctrine
analysis
s In addition to its exceptions and supporting brief, the Respondent
filed a Motion to Reopen the Record to adduce evidence concerning the
allegation that the Charging Party engaged in certain postheanng mis-
conduct particularly offensive to the Respondent's supervisor Dobbs,
who is the Charging Party's father-in-law, thereby rendering a reinstate-
ment remedy inappropriate The General Counsel opposed the motion
Inasmuch as the misconduct alleged by the Respondent only bears on the
remedial aspects of the Order and not on the issue of commission of
unfair labor practices or the credibility of the Charging Party or any
other witness, we hold that this issue is more appropriately presented and
considered at the compliance stage of this proceeding Exchange Bank,
264 NLRB 822 fn 2 (1982), St Francis Hospital, 252 NLRB 1247 fn I
(1980), Savin Business Machines Corp, 242 NLRB 435 fn 1 (1979) Ac-
cordingly, the Respondent's motion is denied
Member Hunter agrees that the suitability of the reinstatement remedy
given here is a matter best left to the compliance stage of this proceed-
ing In so doing , Member Hunter is mindful of the emotional distress
which would be visited on the alleged victims of Upshaw's purported
misconduct if they were called on to play any role in the resolution of
this issue at compliance Thus, Member Hunter believes that the suitabil-
ity of the reinstatement remedy should turn on the basis of whether the
Respondent has a reasonable belief that Upshaw engaged in the miscon-
duct attributed to him in the Motion to Reopen the Record. If the Re-
spondent has such a reasonable belief, Member Hunter would find rein-
statement inappropriate
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge. This case was heard in Kansas City, Kansas, on
October 19 and 20, 1983,1 on a complaint issued August
23, pursuant to a charge filed by Ronald Upshaw, an in-
dividual. The complaint alleges that Bartels & Shores
Chemical Company (the Respondent) violated Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act) by discharging Upshaw because of his union activi-
ty. The Respondent, in its answer, denies the commission
of unfair labor practices.
Issue
Whether Upshaw was discriminatorily discharged by
the Respondent at the instance of his foreman father-in-
law in violation of Section 8(a)(1) and (3) of the Act be-
cause of his union activity and expressed union sympa-
thies, or was he terminated, as asserted by the Respond-
ent, for cause.
All parties appeared at the hearing and were given the
opportunity to be heard, to present evidence, to examine
and cross-examine witnesses, and to file briefs. Briefs
thereafter filed by the General Counsel and the Respond-
ent have been carefully considered.
On the entire record,2 the briefs of the parties and my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Missouri corporation, is engaged in
the wholesale distribution of agricultural and industrial
chemicals at its Kansas City, Missouri facility. In the
course and conduct of its business operations within the
State of Missouri, the Respondent annually purchases
goods and services valued in excess of $50,000 directly
from sources located outside the State of Missouri, and
also annually sells goods and provides services valued in
excess of $50,000 directly to customers located outside
the State of Missouri.
The complaint alleges, the answer admits, and I find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The positions of the parties
The Respondent , a wholesale distributor of weed kill-
ers and pesticides used in agriculture , brings large quanti-
ties of such chemicals from the manufacturers to its
warehouse in Kansas City, Missouri . These thereafter are
I All dates hereinafter are within 1983 unless stated to be otherwise
2 Certain corrections to the transcript record moved by the General
Counsel in his brief and also on my own motion are addressed in Appen-
dix A [omitted from publication] to this decision
274 NLRB No. 159
BARTELS & SHORES CHEMICAL CO.
distributed to farm elevators and lawn and garden stores.
Roger A. Shores is the Respondent's president and chief
executive officer. Walter (Rocky) Dobbs is the ware-
house foreman. Both men are supervisors within the
meaning of Section 2(11) of the Act.
In the spring and early summer of 1983, when the
events considered herein are alleged to have occurred,
the Respondent employed about 22 persons, of whom 4
were warehousemen who worked under Dobbs. One of
these warehouse employees was the Charging Party,
Ronald Upshaw, who had been hired by Shores on
March 10 at the recommendation of Dobbs, Upshaw's
father-in-law.
Shores and Dobbs testified that it had been necessary
for Dobbs to send Upshaw home on July 5 and for
Shores to terminate him the next day, slightly less than 4
months after Upshaw's hire. This was because of the mis-
takes Upshaw had made on the job, some of which had
been costly and dangerous and because Upshaw had
argued with customers, had not improved his perform-
ance; and had threatened to take the wife and certain
other possessions of Walter Hlll, an older employee, at a
time when both men were supposed to be working. This
last incident had caused Dobbs to send Upshaw home
and, in the context of Upshaw's general performance, to
agree the next day to his discharge.
The General Counsel and Upshaw, while conceding
that the latter had made mistakes, deny that Upshaw was
responsible for as many errors as attributed by the Re-
spondent. They also deny that Upshaw had received the
job training ascribed to him by the Respondent or that
he had argued with customers. These parties argue that
such faults as Upshaw had were tolerated by the Compa-
ny until he and another employee, Troy Dudley, had
overtly arranged to contact a union to organize the Re-
spondent's warehouse employees. One workday later,
Upshaw was sent home early and was terminated on the
following day. Dudley, whose work record had been
good, was invited to quit a week later by Company
President Shores, who then had raised the topic of a
union, telling Dudley that a union would not do any
good. The General Counsel further argues that several
reasons cited for Upshaw's discharge, including his at-
tendance record, had not been mentioned either to
Upshaw or during the General Counsel's investigation of
the charge as reasons for his discharge, had not been
considered by the Respondent when it decided to termi-
nate Upshaw, and were rationalizations after the event.
2. The evidence supporting lawful discharge
Shores testified that when Upshaw was hired in
March, the warehouse employees were unrepresented.
About 6 years earlier, Teamsters Local Union 956 had
been certified as bargaining representative of the Re-
spondent's warehouse employees and, without incident,
had signed a 3-year contract that that Union had not
sought to renegotiate at expiration. When Upshaw began
his employment, the Union had not been at the Respond-
ent's premises for some years.
1035
Shores related that Upshaw had been hired as a stack-
er.3
Shores testified that Upshaw had made mistakes in his
work from his first day on the job. At that time, Shores
had noticed that some of the cases stacked outside his
office had been placed upside down, although arrows on
the outside of each carton indicated the correct topside.
The result was that chemicals leaked from the plastic
jugs inside the cases. In response, Shores called Foreman
Dobbs into his office and asked who had so stacked the
product. When told that Upshaw was responsible, Shores
told Dobbs to straighten the matter out and to make cer-
tain it did not happen again.4
The next error attributed to Upshaw occurred about I
week later when Shores noticed that certain chemicals
had been placed where they did not belong. As the dif-
ferent products are stored in specified areas within the
warehouse, Shores asked Dobbs about this. He was told
that Upshaw had put the products there although he had
been properly instructed as to where and how to store
them. Nonetheless, Upshaw had continued to store the
goods in incorrect places within the warehouse.
According to Shores, a new warehouse employee
would not be expected to do anything by himself for the
first week on the job, but would be assigned to work
with a more experienced employee. A new employee
would be required to know where items he previously
had stacked inside the warehouse belonged and to build
on this experience. Upshaw had been assigned to work
with a more seasoned employee for his first 2 weeks
before receiving the lower level of supervision normally
given to employees.
Warehouse Foreman Dobbs, to whom had fallen the
task of training new warehouse employees, related that
he merely would explain to new employees what to do
and how to do it until he thought they understood. He
had shown Upshaw and other warehousemen how to
stack bags and cases. He also told them what to do with
3 Shores described the stacker's job as an untrained position where the
worker was required merely to put cases and bags of chemicals where
told Although the evidence clearly shows that after Upshaw's first
month with the Respondent he also regularly filled customer's orders in
addition to his stacking, both on assignment from Dobbs and at the re-
quest of others, Shores continued to deny that Upshaw had been author-
ized to do such work Shores' denials are not credited as they are against
the clear weight of the evidence Paradoxically in this regard, part of the
Respondent 's stated complaint against Upshaw's performance was that he
did not properly fill all orders
I also do not credit Shores' testimony that Upshaw had been hired as a
temporary employee for a 2-week period Upshaw's job application indi-
cates, in Shores' handwriting, that Upshaw had been hired subject to a 2-
week probationary period, which he later passed Also , it would not
make sense for the Respondent to have hired a temporary employee for
only 2 weeks so close to the start of its 5 -month busy season during
which 80 percent of its business is conducted Shores seemed to realize
this later in his testimony when he stated that Upshaw had been permit-
ted to pass his probationary period, in part, because it had ended during a
time when Upshaw's services were still needed Even later, in early July,
when Upshaw was discharged, the seasonal diminution of work at that
time was not one of the reasons given by the Respondent
4 In spite of his running complaints about Upshaw's work, Shoies
never personally saw him actually make a mistake on the job and, until
his terminal interview with Upshaw, Shores never cautioned, corrected,
or warned Upshaw Shores had expressed his displeasure only to and
through Dobbs from whom had come all his information concerning inci-
dents for which Upshaw was blamed
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to specific jobs, and then went on to other tasks
leaving the employee to finish the work. Dobbs later
would return and check what have been done. If the
work was not completed properly, he would so inform
the employee and correct the matter himself, changing
the position of and straightening bags to keep them from
falling.
Upshaw testified that he had received a less-structured
orientation, merely having been told what to do by
Dobbs. After Upshaw had been with the Respondent for
a month, Dobbs had informed him that since he was
going to be there he might as well fill customers' orders
and learn the other things done at the warehouse. He
was not instructed in the duties of a stacker, as such, but
had learned his job and where the different products
were kept by working with and helping other employees.
Although Upshaw later sometimes would fill 10 orders
in a week, he never filled an order for a customer with-
out first going through Dobbs Upshaw also had learned
stacking from his prior employment.5
According to Shores, Dobbs continued to stack car-
tons upside down with a continued resultant loss of mer-
chandise from seepage. In March, two infractions were
attributed to Upshaw-occasions where 50 percent of
the cases were stacked upside down, although they had
been marked with arrows indicating the proper position-
ing. Shores could not recall the number of mistakes made
by Upshaw in April or May, but remembered that there
had been five incidents in June.
In early June, Shores smelled marijuana while on the
fourth (top) floor of the Respondent's principal ware-
house building. He saw Upshaw and another employee,
Troy Dudley, in the area. When Shores later asked
Dobbs if anyone had been smoking pot in that area,
Dobbs replied that Dudley and Upshaw had been doing
so Shores told Dobbs that he would not tolerate such
conduct. He had had experience with it in Vietnam,
wanted it stopped, and did not want to hear anymore
about it.6 On June 29, a very irate customer, Mary Shel-
ton, who represented a garden shop, came to see Shores
with a complaint. Shelton told Shores that he had an em-
ployee who had been very rude to her and that she did
not seem to be able to get the merchandise she wanted.
Shelton related that she had been downstairs' trying
to have her order filled by Upshaw. Her order called for
3 bales of 1-6 cubic foot peat moss and she did not want
S I credit Upshaw's description of the lesser level of training he had
received from the Respondent The main warehouse was large, contain-
ing some 40,000-square feet distributed among the buildings ' four stories
In addition to this multistory facility, the Respondent's warehouse em-
ployees also were expected to work in a smaller warehouse building a
short distance away As Dobbs was responsible for all floors of both
warehouses, it was necessary for him to leave Upshaw to work by him-
self for appreciable periods In these circumstances, it seems unlikely that
Upshaw had received the more formalized guidance described by Shores
6 Upshaw denied having used marijuana This incident, however, was
not cited as a reason for Upshaw's termination when it occurred or at
any time before the hearing
Shore's office was on the second floor of the four-story main build-
ing Some of that building's storage area, Dobbs' office, and the loading
dock, which was just outside Dobbs' office, were located on the first
floor
the 3-6 cubic foot-100 pound bales that Upshaw had
brought her.8
After personally filling Shelton's order, Shores called
Dobbs and reminded him that he had told him before
that Upshaw had been directed to not fill orders. He had
not been trained and had no business doing such work.
Also on June 29, according to Shores, a more serious
mistake by Upshaw from the preceding day was discov-
ered.9 Upshaw erroneously had given out a shipment ad-
dressed and waiting on flats to go to Dix Nursery in Jef-
ferson City, Missouri, via Buford Truck Line, to a will-
call customer from Sunrise Beach, Missouri Shores ex-
plained that the matter was particularly serious because
the Respondent handles hazardous materials that require
specific bills of lading for over-the-road travel. In the
case of the shipment intended for Dix Nursery, the party
who had incorrectly received the shipment transported
the hazardous material involved, a flammable liquid
called Kelethan, without the required special bill of
lading. The proper bill of lading was necessary in that in-
stance because in case of fire, the authorities would then
know whether or not to spray the load and what extin-
guishing agent to use.
The mistake was realized the next day around 4 p.m.
when Buford Truck Line came to pick up the shipment
for Dix Nursery and it was realized that the shipment
was gone. The Respondent could not refill the order as it
did not have enough of the material involved. Therefore,
in addition to losing the $1000 sale to Dix Nursery, the
Respondent had to undertake the expense of retrieving
the chemical from Sunrise Beach. When the shipment
was recovered, it was discovered that the Sunrise Beach
recipient had had a flood on its premises and that half
the product had been ruined.
Shores took a prolonged Fourth of July weekend va-
cation after Thursday, June 30, returning to work on
Wednesday, July 6. As the Dix Nursery error was dis-
covered only an hour before leaving on that vacation,
and as everyone was going home for a 3-day Fourth of
July weekend, he decided not to take any action at that
time with respect to Upshaw.
On June 30, Audrey Remler, who ran the Company's
order desk, found it necessary to seek out a warehouse-
man to fill a customer's order. She showed the order to
Upshaw who returned with one case where the order
had called for three. It was necessary for Remler to con-
tact Dobbs to correct the matter.
When Shores returned to the office on Wednesday,
July 6, Dobbs informed him that he had sent Upshaw
home the day before. Shores told Dobbs that that was
good as he should have fired him before leaving on his
vacation. When asked what had happened, Dobbs re-
ported that in the late afternoon of the preceding day,
July 5, Upshaw and employees Walter Hill, Troy
a Shores explained that bales are large plastic bags containing six one-
cubic foot satchels of peat moss What Upshaw had attempted to give
Shelton instead of her order were 6-cubic foot , 100-pound bales
9 According to Shores ' original testimony, this incident took place in
its entirety on June 20 He later testified that the mistake occurred on
June 29 and was discovered on June 30
BARTELS & SHORES CHEMICAL CO
Dudley, and Herman Steen1O had been assigned by
Dobbs to remove bags of the chemical Diacinon from
the skids and stack them on the floor of the warehouse
just outside of Dobbs' first floor office While they were
doing this, Upshaw began to talk about the low pay.
When the conversation continued, Dobbs stepped outside
his office and told them that all they kept talking about
was money. No one was making them work for that pay
and they could hit the timeclock when they got ready If
they did not want to work, nobody was making them
work there. Dobbs then returned to his office. The men,
however, continued to talk, breaking off work to stand
up to listen to each other instead of continuing with their
tasks. Dobbs came out a second time and told them to
hush. He then returned to his office.
Upshaw, however, had continued to talk. He told Hill
that he was going to take Hill's wife, who is responsible
for all of his money, and his van. Hill would have noth-
ing, but he did not have anything anyway. Dobbs, fear-
ing that this sort of talk could lead to violence, ree-
merged from his office and told Upshaw to punch out,
and to not come back until he saw Shores t t
After Dobbs had described what had happened,
Shores asked if they should fire Upshaw Dobbs and
Shores both agreed that they should and Shores stated
that he would prepare Upshaw's check.
Upshaw was notified through his wife, Dobbs' daugh-
ter, to come in for his check, which he did around noon
on July 6, when he met with Shores in his office. Shores
gave Upshaw his check and told him that he was termi-
nated When asked why, Shores told Upshaw that he
had not been thinking in the performance of his duties,
had made too many mistakes, and had not shown any
progress. According to Shores, the interview did not go
smoothly as Upshaw repeatedly interrupted and argued
about the points Shores was trying to make.
In response to Upshaw's further request for reasons for
his discharge, Shores specified the incidents where
Upshaw had argued with Mary Shelton about the mer-
chandise he had given her and where Upshaw had given
the merchandise marked for Dix Nursery to the wrong
party. Upshaw argued that none of those events had
been his fault, and he attempted to explain that in load-
ing the Dix Nursery merchandise on the wrong custom-
er's truck, he merely had been following instructions.
The interview ended on a discordant note, Shores find-
ing it difficult to talk over Upshaw's arguments.
In addition to the foregoing, other of Upshaw's short-
comings while employed by the Respondent, as de-
scribed by Dobbs, included his inability to stack bags
properly in the manner repeatedly shown to him Bagged
loads would be delivered to the warehouse every 2 to 3
weeks, except that a Fertilome truck might come in
twice a week depending on how busy the Respondent
was at the time. It had been necessary to restack Up-
shaw's work several times. Even when bags did not have
to be stacked, cases came in all the time. Although
10 Hill, Dudley, and Dobbs filled customers orders Steen, the truck-
driver, also did warehouse work These employees, Dobbs and Upshaw,
comprised the Respondent's warehouse complement at the time
11 The foregoing account was a synthesis of the testimony of Shores
and Dobbs concerning the July 5 incident
1037
Dobbs had showed Upshaw how to stack cases, where
to put them, and how high the stacks should be, some
cases were stacked correctly and others were upside
down. Dobbs noted that Uphsaw had begun to stack
cases upside down around 2 weeks after he started to
work, instead of immediately as described by Shores. 12
According to Dobbs, every time Upshaw had put some-
thing in stock, some cases were placed upside down or
the stack was not right. He could attribute the poor
stacking to Upshaw as the only employee who was
doing that work at the time.
Dobbs testified that during Upshaw's first week, he
saw a bag fall off a flat that Upshaw was pulling. Every-
thing in that bag was damaged. This had occurred be-
cause Upshaw had stacked the bags carelessly onto the
flat without tying them down to prevent their falling off.
It is inevitable that unsecured bags will fall off when
moved.
Dobbs first spoke to Upshaw about the way he
stacked boxes during his second day on the job, telling
him that he needed to practice this as he was not doing
it right. He also first corrected the way Upshaw was
stacking bags around 1 month after he started there and
last spoke to him about the way he was performing this
task around 2 weeks before his discharge.
Approximately 2 months after Upshaw started with
the Respondent, he tore a bag while puling an order,
spilling its contents inside the warehouse. In all, it was
necessary to speak to Upshaw around four times about
damaging bags. 13
As a result of Upshaw's performance, Dobbs had
found it necessary to complain to Shores on about two
or three occasions. The first instance occurred about 3
weeks after Upshaw had begun his employment, but he
does not recall what he had said to Shores at the time.
Shores, too, recalled that about on three occasions he
had found it necessary to complain to Dobbs about Up-
shaw's performance Dobbs testified that if Upshaw had
not been his son-in-law, he would not have been tolerat-
ed on the job as long as was the case and he would not
have passed his 2-week probationary period.
3. The evidence indicating unlawful discharge
Upshaw testified that when he started to work for the
Respondent much material already was out of place as
misstacked, and that Dobbs had had him restack and re-
locate much of what had been stored in the warehouse.
He often had heard Shores and Dobbs say that the ware-
house was in trouble.
Upshaw denied having been told in March that he spe-
cifically had stacked cartons upside down. All that he
had heard was a general statement to the group that the
material had been stacked wrong and that the men
would have to watch this. He had not been singled out.
12 Contrary to Shore's testimony, Dobbs related that Upshaw's mistake
on his first day with the Respondent had related not to leaving cases in
an inverted position , but to having stacked bags inappropriately
13 Dobbs conceded that it had been necessary to speak to all ware-
house employees about damaging and tearing bags, and that he, too, had
torn bags of chemicals
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also, contrary to Shores, Upshaw did not recall any
instance where Shores had had to reorder merchandise
because it had been misplaced in the warehouse and the
Respondent had not been aware that it had arrived
However, he did recall many instances where merchan-
dise had been in the warehouse for so long that the Re-
spondent had forgotten that it was there and had back
ordered as a result For that reason and not because of
Upshaw, merchandise frequently had been back ordered.
At the end of May or the beginning of June, Dobbs
and Upshaw began to reogranize the contents of the
warehouse, moving products from one side of the build-
ing to the other and putting one type of product where
another previously had been stored Dobbs instructed
him as to what to do
Upshaw contended that he frequently was blamed
when not responsible, and that Dobbs had told him to
straighten out every situation whether or not it had been
his fault. Accordingly, Upshaw had felt obliged to take
out usable product from the trash bin although he had
not put it there On that occasion, Dobbs had told the
men that whoever had put the chemical in the trash can
had better get it and put it back in stock. Upshaw
waited. When he saw that no one else was going to re-
trieve the item , he did so in the expectation that Dobbs
was going to tell him to get it anyway. According to
Upshaw, every time Dobbs saw something out of place
on the first floor, he would tell him to put it back in
stock However, Dobbs did not tell Upshaw that he was
considered responsible for such dislocation.
As Upshaw recalled the incident where goods marked
for Dix Nursery were given to the wrong customer, a
man with a truck had come to pick up the shipment.
Dobbs earlier had filled most of the order, leaving three
pallets of product lined up in the main warehouse near
the dock. Upshaw, at Dobbs' instruction , had pulled the
product on a fourth pallet, and was told by Dobbs to
load the truck with the merchandise on those four pal-
lets After Upshaw finished loading, Dobbs gave him a
ticket for the man to sign Dobbs also gave Upshaw a
second ticket with instructions to go to the nearby ware-
house to load the rest of the order Accordingly,
Upshaw went to the second warehouse, loaded that
order, and had the man sign the second ticket , as well.
The customer then left.
Upshaw testified, without contradiction from Dobbs,
that Dobbs had been present on the main warehouse
floor during most of the time he had been loading the
truck. As Upshaw had not had the order ticket, he had
not known what to put on the truck and had found it
necessary to repeatedly check with Dobbs as to what to
load. Upshaw had learned what to load at the second
warehouse from Dobbs, who, having gone there to fill
someone else's order, had put on the dock what Upshaw
was supposed to load and had been there when Upshaw
arrived. All Upshaw had to do was put the waiting mer-
chandise on the truck, as directed by Dobbs.
Upshaw testified that the Company had learned of the
Dix Nursery mistake the day it happened, instead of the
next day. In response to Shore's inquiry, Upshaw admit-
ted he had given the man who had come in the merchan-
dise in question Shores had cursed and walked to the el-
evator.
Upshaw recalled that later that day, just before it was
time to go home, Hill and Dobbs began to joke about the
matter, with Hill saying that Upshaw had just sent a lot
of stuff somewhere. Both men had laughed
Upshaw remembered the Mary Shelton incident as
having occurred about 2 weeks before he was terminat-
ed Dobbs had filled Shelton's order and left it on the
dock, telling Upshaw to give the merchandise to her.
Dobbs then went upstairs . Shelton, however, after look-
ing at the ticket, had complained that it was not the peat
moss she wanted Upshaw then took the peat moss off
the truck and told Shelton that she would have to go up-
stairs and get the order changed because he did not have
the authority to change it himself When Shelton told
Upshaw that he could fill her order as she wanted, he
replied that he could not Shelton then went upstairs,
angry because Upshaw would not get her peat moss
Upshaw, however, had not wanted to risk his job by
doing so. Later, Dobbs came back down and told
Upshaw to get the merchandise Shelton wanted Upshaw
did so, ending this matter Nothing was said about his
having argued with the customer.
As to the remaining June 30 incident , Upshaw testified
that on that date, at lunchtime, the lady who usually
wrote orders (Audrey Remler) came down to the first
floor where he and Dudley were having lunch and asked
one of them to fill an order that had been brought in by
a male customer . Although reluctant to give up his brief
lunch break, Upshaw did fill the order but did so incor-
rectly. He then accompanied Dobbs upstairs where
Dobbs refilled the order On the way down, Upshaw in-
formed Dobbs that he, too, had incorrectly filled the
order by reusing the same merchandise that Upshaw ini-
tially had brought down Dobbs returned with the right
product. Upshaw had not spoken to this customer
On July 1 around 9 a.m., Dobbs assigned Upshaw,
Dudley, and Hill to unload a truck The driver who had
brought in the shipment waited nearby. While they were
working, Upshaw and Dudley complained to each other
about the job, how hard the work was, how working
without an electric pallet jack they had had to do all the
physical work themselves, hurting their backs, and how
they were not making any money on the job. Dudley de-
clared that the job was messing them up and that he did
not want to end up like Hill and Dobbs, both of whom
had been there for 13 years without ever making a good
$100 a week. According to Dudley, at one point he and
Upshaw asked Hill if he would like to get a union with
them. Hill rejoined that he would not mind but did not
think that it would do any good. Upshaw, who attempt-
ed to establish that it had been Hill who later informed
management of his union activities, described a more
hostile reaction to the Union on the part of Hill Accord-
ing to Upshaw, Hill had driven the forklift to where he
and Dudley were working and had told them to shut up
Hill then got off the forklift and went to the small ware-
house where Dobbs was at the time.
The driver who had brought in the truck they were
unloading overheard the conversation between Dudley
BARTELS & SHORES CHEMICAL CO
and Upshaw and asked if they wanted to get a union
When they answered affirmatively, the truckdriver told
them that if they wanted a union, he could get a man to
come out and talk to them However, if they were just
playing around, there would be no sense in his doing so
The driver gave Dudley a telephone number and a name
to call and request. The driver and Dudley also ex-
changed telephone numbers.14 During their conversa-
tion, the driver also had asked Dudley how long he had
been working there Dudley replied that he had been
there for 2 years Upshaw and Dudley were of the view
that the driver had dealt principally with Dudley as the
employee with the greatest seniority.
According to Upshaw, Hill then returned and was
asked by Dudley and Upshaw if he would stand behind
them when they signed up for the Union. Hill said that
he would but, because of the lack of success with a
union the first time, it would make no sense. i s
Because of the long Fourth of July weekend that fol-
lowed, after Friday, July 1, Upshaw and the other ware-
house employees did not work again until Tuesday, July
5
During the morning of July 5, Upshaw, Hill, Herman
Steen, and Dudley were assigned to stack bags of the
chemical Diacinon in the area just outside of Dobbs' first
floor office. There, they spoke about how difficult it was
to get by on their pay. Upshaw testified that he heard
Dobbs call from his office telling them to shut up, that
he did not want to hear anymore about it If they did not
like it, they could punch out If they did not punch out,
he, Dobbs, did not want to hear anymore. According to
Upshaw, Dobbs did not then come out of his office but
shouted through a thin plywood wall. Physically, the
men were working at a distance of 5 to 6 feet from
where Dobbs was situated in his office.
After Dobbs' outburst, everyone was quiet for a time.
Hill, however, rekindled the conversation by announcing
to the others that his wife made more money than all
four of them put together. Upshaw, in turn, told Hill that
if his wife had not been making all that money, Hill
would not have a boat and a van and all that other stuff
because they did not earn enough money at the Compa-
ny. Upshaw told Hill that pretty soon he might be a
partner in his boat and be fishing off of it. 16 At that
point, Dobbs emerged from his office and told Upshaw
to punch out and to not come back until he had spoken
to Shores Upshaw left before lunch.
Synthesizing the testimony of Dudley and Steen con-
cerning this incident, while the men were working out-
side Dobbs' office, Upshaw complained that they were
not making enough money for the type of work they
were doing and for the conditions under which they had
14 One week after this incident , Dudley was contacted about a union
By then, Upshaw had been discharged
15 Dudley's account differed from Upshaw 's concerning the June 30
incident with the driver in that, according to Dudley, Hill had been
present the entire time that they were unloading the vehicle and did not
leave until the work was finished Upshaw described Hill as being present
only part of the time
16 Upshaw , who described the conversation as jocular with everyone
laughing , denied that he had told Hill that he would take his wife This
denial is not credited as inconsistent with the weight of evidence Even
Dudley, who was friendly to Upshaw , contradicted him on this
1039
to work Upshaw observed that just about all the mer-
chandise that the men moved or put in stock had to be
manhandled without the use of any kind of electric
equipment Dudley agreed with this During this discus-
sion, the men continued to stack the Diancinon bags,
hesitating in their work only to talk before resuming
their work When someone spoke, everyone would stand
up to listen to what was being said, breaking the work
pattern.
Dobbs came out of his office, looked at Upshaw, and
told him that if he did not like the working conditions or
the salary he was getting paid he could leave. Dobbs
told Upshaw to cut the talk and to continue to work.
After a silent work period, Hill and Upshaw picked up
the conversation, speaking again about how much money
they were making on the job. Hill told Upshaw that his
wife was taking care of him so it did not matter, that he
was going to stay there and never was going to go any-
where else. Upshaw replied that if it were not for Hill's
wife he would not be making it on the job. Hill told
Upshaw that he knew that Upshaw would be there, that
he was not going anywhere, and that he could not get a
job Upshaw, in turn, stated that Hill had his van and
boat, which Hill would not be able to have on that par-
ticular job if not for his wife. He told Hill that he was
going to take Hill's van, boat, and wife Immediately
thereafter, Dobbs emerged from his office and told
Upshaw to punch out, go home, and not return until he
had spoken to Shores 17
That evening about 6 or 7 p.m., Upshaw visited Hill at
his home. When Hill asked Upshaw what had happened
to him, Upshaw replied that Dobbs had sent him home.
Hill asked why, as Dobbs had had no reason. Upshaw
answered that he knew but, also, that Hill knew how
Dobbs was. They then spoke of the Union. Hill told
Upshaw that he was getting old, wanted to get his pen-
sion , and that he would continue his job with the Re-
spondent until he retired in 6 or 7 years. i s
Upshaw related that the next day, when his call was
not returned after he had left a message , he asked his
wife to call about his paycheck. His wife reported that
she had spoken to her father, Dobbs, who had said that
Upshaw should pick up his check
At the Company, Upshaw went to Dobbs' office.
Dobbs told him that his check was not yet ready. While
waiting in Dobbs' office, Upshaw aksed why he had
17 Although there is a conflict in the testimony between Dudley and
Upshaw, both of whom described the exchange between Upshaw and
Hill as lighthearted with the men laughing , and that of Steen and Dobbs,
who considered the words between them to have been in earnest, it is
clear that Dobbs took the conversation seriously I credit the above ver-
sion by Dudley and Steen as the most objective and comprehensive ac-
count of the events leading to Upshaw's suspension on July 5
Is As Hill recalled Upshaw's visit to his home on the evening after
Upshaw had been sent home, Upshaw announced that he had stopped by
as he was in the neighborhood When Upshaw asked if Hill would be at
work the next morning , Hill told him that he was supposed to be at
work, like himself, at 8 am As Upshaw left, Hill sent Upshaw's wife a
flower There was no conversation during that visit about why Upshaw
had been sent home and no mention was made of a union Upshaw's visit
had lasted 10 minutes This conflict is not material, and the visit by
Upshaw is germane only as it tends to support his testimony that the ear-
lier exchange between the two men had not been serious
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been fired Dobbs told him that he had made too many
mistakes. When asked what mistakes he had made,
Dobbs replied that Upshaw had been fired for arguing
with customers and for giving a man stuff he was not
supposed to have. Dobbs became upset when Upshaw
asked him to explain what he had meant by his statement
that Upshaw had argued with customers. Dobbs would
not let Upshaw explain what happened and told him to
wait in Dobbs' office until his check was ready. Upshaw
declared that he would rather wait in his car. Dobbs also
complied with Upshaw's request that he be given a writ-
ten statement showing why he had been fired so that this
could be given to the welfare office.
During that visit to the Company's premises on July 6,
Upshaw also met with Shores. During their conversa-
tion, nothing was said about Upshaw's relationship with
Hill. Shores, in explanation of the discharge, told
Upshaw only that he had made too many mistakes, had
mentioned the lady (Mary Shelton) who had been dissat-
isfied with the peat moss order, and about his having
given out the wrong stuff (the Dix Nursery shipment).
When Shores also mentioned that Upshaw had been ar-
guing with one of the customers, Upshaw attempted to
explain to Shores that it had not been his fault because
he had been trying to do as ordered. Shores told Upshaw
that he did not care about this, Upshaw had made too
many mistakes and the job was ended. Upshaw tried to
tell Shores that he could not give the lady the peat moss
because it had not been his job to change orders and that
he had told her that if she wanted to change her order,
she could go upstairs where there was authority.
Upshaw also tried to explain to Shores that he had
loaded the merchandise intended for Dix Nursery on the
wrong truck only at Dobbs' direction.19
Troy Lee Dudley Jr.20 testified that about a week
after Upshaw's discharge, he was told by Dobbs on ar-
riving at work to go upstairs to see Roger Shores. In
Shores' office, with Dobbs also present, the men dis-
cussed working conditions. Dudley asked if the Compa-
ny would provide an electric pallet jack that could be
used for lifting heavy cases and bags. Shores answered
that he had been looking into this but that Dudley could
not have one because in the Company's old warehouse
building, it would fall through the floor. Shores told
Dudley that he would like to have a fancy building like
19 About 2 weeks after Upshaw was terminated, he again visited Hill
at his home During this conversation , Upshaw asked Hill if he had told
the Company about his union activity. Hill replied that he did not tell
Dobbs, but that Dobbs had turned on the intercom
Hill denied both that Upshaw 's second visit and that such a conversa-
tion had occurred This denial is credited as supported by the accepted
testimony of Dudley, who appeared as a General Counsel's witness
Dudley, contrary to Upshaw, testified that while he and Upshaw were
unloading the truck and talking to the driver on July 1, Hill had stayed
with them and had not gone to the second warehouse in the direction of
Dobbs If Hill was not with Dobbs at the time, he could not have known
what Dobbs was then doing with the intercom
20 Dudley was employed by the Respondent as a warehouse order
filler from 1981 until around August 1, 1983, when he resigned Although
Dudley's testimony concerning this interview with Shores after Upshaw's
discharge is undisputed , Dudley has not been alleged as a discrimmatee in
the complaint and the Respondent 's conduct concerning him has not been
alleged as unlawful Accordingly, Dudley's experience will be considered
only as it affects Upshaw
some other buildings but right now the Company just
could not afford to do this.
There followed a general discussion about the type of
building that the men were in and the type of work they
did in that building at that time. Shores told Dudley that
he could not afford another building or new equipment,
that Dudley needed to change his attitude on the job
while working around the men, and that if Dudley was
unhappy with the conditions there why did he not quit
and get a different job. Shores then told Dudley about
another job elsewhere that was hiring employees.
Dudley asked Shores whether, if he stayed with the
Company as long as Hill and Dobbs, he would earn $5
an hour. Shores replied that he did not know if he even
would be there and could not promise or guarantee
something like that. Dudley told Shores that the men,
Dobbs, Upshaw, Hill, and himself had spoken among
themsevles downstairs about the fact that they were not
making enough money. Dobbs interjected that he had
not been talking about that, but Dudley told him that he
had been.
Shores then raised the topic of a union, informing
Dudley that they had had a union in there before, and
that the men had found out that it did not really do them
any good because it took a third man, which had been
Shores. The men all had discovered that all they were
doing was just paying out their money So the Union did
not do any good. Shores then told Dudley that he was
and had been a good worker.
Two weeks after this conversation, Dudley voluntarily
left his job with the Company.
Dudley earlier had not been discreet in discussing the
prospects of a union with his fellow employees in Dobbs'
presence. He had first begun to talk about the possibility
of bringing in a union with other of the Respondent's
employees in the summer of 1982, before Upshaw was
hired. At the time, he spoke to Hill and Dobbs about the
Union. They replied that they had had a union there
before. Hill had told Dudley that Dobbs "had sold them
out of the Union," so they really did not want to mess
with a union again.
Dobbs, too, had told Dudley that a union had not been
successful there before, but said nothing about Hill's
point that he had sold out the ;mployees. When Dudley
told Dobbs that he thought a union might be helpful,
Dobbs expressed his view that it would not.
Several times thereafter, Dudley spoke to Hill about a
union . On one occasion, he asked Hill why he did not
think the employees should get a union. Hill replied that
he would not mind getting one but no one else would go
along with it. Dudley did not again talk about a union
until Upshaw was hired.
In April, about a month after Upshaw had started to
work, Dudley asked Upshaw what he thought of a
union , noting that they were not making any money
Upshaw told Dudley that he felt that they should give a
union a shot if they could. No particular union was dis-
cussed. Dudley had not previously worked in a union
shop.
Thereafter, the topic of a union came up a number of
times among the men while they were working, includ-
BARTELS & SHORES CHEMICAL CO
mg a few instances when Dobbs was present. Dobbs'
comment was that a union had been there before and
that he did not want to mess with one.
More specifically, Dobbs was present during two in-
stances when a union was raised in conversations where
Upshaw participated. The second occasion occurred in
May, about 2 months after Upshaw had come to the job.
On that occasion, Dobbs, Hill, Upshaw, and Steen were
stacking items and talking together. One of the men men-
tioned a union. Hill again said that he would not mind
having a union there himself but did not want to go to a
union because Rocky Dobbs "had sold them out of the
union that they had had there the first time." Dobbs re-
plied that he would not be with the Union and he would
not be with the men either. On these occasions when
Dobbs and Upshaw were present when a union was
being discussed, Upshaw asked the men, "What about a
union , why don't we get one?" Hill would repeat to the
men that a union just would not do them any good.
They had a union and Rocky had sold them out.
Dudley related that he had raised the topic of a union
among the other men when Dobbs was not present on an
average of three times a week. Also, it had not been un-
usual for him to talk about a union in front of Dobbs. On
such instances, Dobbs had not gotten angry or had made
any threats.
B. Discussion and Conclusions
To establish that Upshaw was terminated in violation
of Section 8(a)(3) and (1) of the Act, the General Coun-
sel was obliged to establish by a preponderance of the
evidence that the Respondent knew, or suspected, that
Upshaw supported an organizing campaign by a union
among the Respondent's employees and that the Re-
spondent was motivated to discriminatorily discharge
him for that reason.21 An active union campaign had not
begun by the time of Upshaw's discharge and his proun-
ion activities and expressions of sentiment within the
warehouse were quite limited. While the record estab-
lishes that the Company had some direct knowledge of
Upshaw's desire for a union, as twice expressed by him
in Dobb's presence, it does not show that the Respond-
ent had direct knowledge of his actual overt action in
furtherance of those sympathies. Upshaw's only union
activity had consisted of his having joined with Dudley
and the outside truckdriver on July 1 to arrange that the
driver should contact a union on their behalf and report
back to Dudley. As restated by Administrative Law
Judge Julius Cohn in his Board-approved decision in
Galar Industries.22
[K]nowledge of union activities may be shown by
circumstantial as well as direct evidence.-' Any cir-
cumstances which make it logical to infer that Re-
spondent knew about the protected activities of em-
ployees must be considered In a small plant where
the supervision has close contact with the employ-
ees and the concerted activity is carried on in an
21 Emory Convalescent Home, 260 NLRB 540, 546 (1982)
22 239 NLRB 28, 30 (1979)
1041
open manner an inference is warranted that the
Company does obtain knowledge.3
2 Famet, Inc, 202 NLRB 409 (1973)
3 Long Island Airport Limousine Service Corp, 468 F 2d 292 (2d
Cir 1972), Niagara Gear Corp, 225 NLRB 122 (1976); Wiese Plow
Welding Co, 123 NLRB 616 (1959)
Here, the potential bargaining unit in early July con-
sisted of four warehouse employees, including Upshaw,
Dudley, Hill, and Steen, the driver, all of whom worked
with and were closely supervised by Dobbs.
The General Counsel showed that the subject of bring-
ing in a union had been freely and repeatedly discussed
among the warehouse employees while at work, occa-
sionally in Dobbs' presence, in connection with ongoing
complaints concerning low wages, the hard physical
work required in lifting heavy bags and cases, and the
lack of labor-saving equipment, such as electric pallet
jacks, that would ease this burden. These discussions
principally were begun and carried on by Dudley.
Dudley had started them 'in the summer of 1982 before
Upshaw was hired, and the topic had been again raised
repeatedly by him after Upshaw became employed. The
record reveals that of the other employees, only Upshaw
had joined Dudley in speaking out in favor of having a
union , on two occasions in Dobbs' presence. Hill, refer-
ring to an unsuccessful short-term earlier experience with
a union , which Dobbs had "sold out," repeatedly had
taken the position that organizing would do no good.
Steen, who with Hill still was employed at the time of
the hearing, was not described as having said anything
concerning a union.23 Through the months, the on-the-
job complaints about wages, working conditions, and
prospects for the future continued, as did references to
the desirability of a union. Only Dudley and Upshaw
openly favored a union 24 They, too, were the only em-
23 Steen, who during his employment with the Respondent had re-
ceived three loans from Shores in the form of salary advances and had
also received a different type of financial favor, testified as a company
witness
24 The General Counsel, citing Galar Industries, supra, attempted to
show that the Respondent could have learned of the July 1 conversation
where Upshaw and Dudley had asked the outside driver to contact a
union by means of an intercommunications system which , when turned
on in Dobbs' office, could enable him to hear what was said in different
areas of the two warehouse buildings According to Upshaw, during a
visit to Hill's home about 2 weeks after Upshaw's termination, when he
had asked if Hill had informed the Company about that activity, he was
told that Dobbs had turned on the intercom Hill denied that this conver-
sation had occurred and I have above credited Dudley's testimony that
Hill had remained with him and Upshaw during this conversation with
the. driver Therefore, Hill could not have known what Dobbs was doing
at the time As the record shows that Dobbs was out of his office much
of the time, no foundation of any kind was laid to establish the Respond-
ent's intercom as an eavesdropping device by which direct knowledge of
employee union activities and sympathies might be obtained Although
the Board has considered that company knowledge of employee union
activities can be acquired by overhearing talk of same on an intercom
(Galar Industries, supra), or from the nature of the acoustics of the in-
volved work facility (Pay 'N Save Foods, 257 NLRB 1228 fn 1 (1981)), it
must be presumed that reliance of such factors in those cases had been
based on an adequate preliminary foundation
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees to agree to the truckdriver's July 1 offer to con-
tact a union.
Within I workday of reaching this arrangement with
the truckdriver, Upshaw was sent home by Dobbs and
was discahrged by Shores a day later. During the July 6
terminal interview, Shores, replying to Upshaw's request
for reasons, explained that Upshaw was being let go be-
cause he had made too many mistakes and had argued
with a customer, Mary Shelton. The mistake referred to
by Shores, when asked to be specific, was that Upshaw
incorrectly had given the merchandise marked for Dix
Nursery to the Sunrise Beach customer. As accurately
indicated by the General Counsel in his brief, Shores,
during this exit interview, did not even refer to Up-
shaw's July 5 remarks to Hill that had precipitated his
being sent home.25
Although there had been no union activity since Up-
shaw's discharge a week before, Dudley had been called
into Shore's office and, in Dobbs presence, told by
Shores that working conditions would not get better,
that labor-easing equipment would not be acquired, that
pay increases could not be promised, and that a union
had been there before and would do no good. Dudley
was told to improve his attitude and was invited to leave
if not satisfied. Dudley even was told where he might
apply for a new job. Approximately 2 weeks later,
Dudley, with some reason to suspect a limited future, re-
signed from the Respondent in the hope of a more favor-
able position elsewhere.
As neither Dudley's interview in Shores' office nor his
closely following resignation was alleged as violative in
the complaint, no finding is made concerning these inci-
dents. The interview, however, shows that the Respond-
ent had actively focused its attentions in short order on
the only two union supporters-Dudley and Upshaw. In
the absence of union activity since Upshaw's termination,
Shores' meeting with Dudley relates back to that inci-
25 Since Upshaw's final interview with Shores on July 6, the Respond-
ent has provided various reasons for Upshaw 's termination beyond those
given to him at the time These included the incorrect way in which
Upshaw had filled a male customer 's order in late June during the inter-
ruption in his lunchbreak , Upshaw's tearing of bags , his stacking of cases
upside down causing the contents to leak out, the misplacing of product
in the Respondent 's warehouse with the result that such merchandise had
to be reordered as it was not known that the product had arrived Also
given as a cause of discharge for the first time at the hearing was Up-
shaw's attendance record, which showed that of his 16 full weeks with
the Respondent, he had worked the regularly scheduled 42-1/2 hours
during only 6 weeks However, during 3 other weeks he had worked
40 7, 42, and 42-1/2 hours, respectively Of the remainder, he had
worked I week at 29 hours, I week at 37-1/2 hours, and 4 weeks at 34
hours, during each of which he missed 1 full day Upshaw, however, had
worked the full 42 - 1/2 hours during his last full week on the job and, as
stated, there is no detailed showing as to why he had lost time or that his
attendance record had been deemed objectionable and pursued with
Upshaw before his discharge Also, as the payroll records of other em-
ployees, containing corresponding information , were not introduced, Up-
shaw's attendance was not compared to that of other employees whose
work availability was not disputed Therefore, the evidence concerning
Upshaw's attendance was incomplete and not meaningfully developed
Also, as stated by Administrative Law Judge Wolfe in his Board-ap-
proved decision in Price's Pic-Pac Supermarkets, 256 NLRB 742, 750
(1981), enfd 707 F 2d 236 (6th Cir 1983), concerning the subsequent ad-
dition of new defenses, "This attempted 'piling-on' of cause in the face of
a declaration of different cause cast suspicion on the first asserted cause,
betrays an unexplained and suspicious departure from that cause, and
convinces me that both causes advanced are the purest of pretexts "
dent and reflects on his motives in releasing Upshaw.
While complaints by Dudley and Upshaw about working
conditions and talk to the possibility of bringing in a
union to correct them could be tolerated over a period
of time as long as abstract, their interest in a union ap-
parently became intolerable as soon as it became overt.
The record of this proceeding shows that, as an em-
ployee, Upshaw was no prize. Nonetheless, his short-
comings had been put up with from his first day on the
job through the entire period of his employment, and, in
spite of all asserted complaints, he had been permitted to
pass his probationary period. Moreover, it does not
appear that Upshaw had been as ineffective in his work
as described by Shores and Dobbs.26
Accordingly, while Upshaw may have erroneously
given the order intended for Dix Nursery to another cus-
tomer, Upshaw testified, without contradiction from
Dobbs, that he had loaded the merchandise previously
laid out by Dobbs in accordance with Dobbs' instruc-
tions. As he basically had been following Dobbs' direc-
tives as to what to load, he had been less careful in
checking the merchandise against the order ticket. Dobbs
had prepared three of the four pallets of product used
for the shipment, while Upshaw had loaded only one. As
Upshaw had loaded the merchandise in the second ware-
house to complete the order, also as Dobbs had directed,
the error concerning the Dix Nursery shipment, although
blamed on Upshaw, could well have been traceable to
Dobbs.
Dobbs also did not dispute Upshaw's testimony that he
had not argued with Mary Shelton in connection with
her order, nor did he question Upshaw's further testimo-
ny that after he incorrectly filled the male customer's
order at lunchtime on June 30, Dobbs, in attempting to
correct the situation, at first had made the same mistake
as Upshaw, which Upshaw called to his attention. Up-
shaw's intervention in that instance had enabled Dobbs
to fill the order properly without further inciting the cus-
tomer.
26 Shore's credibility was unimpressive Although Dobbs, as later was
developed, clearly was in charge of the warehouse, assigned all work
there, and Shores approached those employees virtually only through
Dobbs, Shores began his testimony by denying Dobbs' authority-there-
after agreeing only reluctantly that Dobbs was a supervisor Shores also
testified that Upshaw, as a stacker, had not been authorized to pick
orders, when order picking clearly had been expected as part of his
duties Instead, rather inconsistently, some of Shore's complaints about
Upshaw related to his performance in filling orders Shores further testi-
fied that Upshaw had been hired only for a 2-week period However, the
reference to 2 weeks as it appeared in Shores' handwriting on Upshaw's
job application specified a 2-week probationary period This correspond-
ed to reality as Upshaw continued past that interval It also appeared un-
likely that Upshaw would have been hired for only 2 weeks on March 10
as, according to Shores, the Company's busy period when it does 80 per-
cent of its business runs seasonably from February through June Al-
though Shores testified at length as to Upshaw's shortcomings, except for
the initial interview when he hired Upshaw, and the final one when
Upshaw was terminated, Shores did not deal directly with Upshaw, and
never personally witnessed any of his charged errors or knew of his in-
volvement in them, except as attributed to Upshaw by others Similarly,
Shores never corrected, cautioned, or warned Upshaw before terminating
him Finally , as noted, in explaining the reasons for Upshaw 's termination
in this proceeding, Shores vaned the defense by adding reasons beyond
those previously given
BARTELS & SHORES CHEMICAL CO.
Although Upshaw had been responsible for tearing
some bags of product in the warehouse, this also had
been done by everyone else who worked there, including
Dobbs
From the record as a whole, noting the small number
of warehouse employees; the fact that Upshaw and
Dudley had not been circumspect in expressing their
sympathies for a union; the pretextual reasons asserted
for Upshaw's discharge as manifested in part by the
changed reasons given for discharge; the timing of the
action taken 1 workday after Upshaw and Dudley had
arranged to have the outside driver contact a union; the
Respondent's demonstrated union animus shortly after
Upshaw's termination in calling Dudley, the remaining
union advocate, to the office and inviting him to quit
while assuring him that conditions would not improve
and the Union would do him no good; and the focusing
of the Respondent's wrath on the two employees who
asked for a union . I find from the circumstantial evi-
dence that the Respondent had prior knowledge of Up-
shaw's union activity when discharging him27 and that
the termination was in response to his union activity.
The Respondent's ability to rebut the General Coun-
sel's prima facie case depended upon whether it could
successfully show that Upshaw would have been termi-
nated notwithstanding his union activity and expressed
prounion sentiments because of his poor work perform-
ance and his arguments with customers Also, it arguably
might be less likely that Upshaw would be disciplined
for reasons that were not work related by his own
father-in-law, Dobbs, who had been instrumental in his
having been hired. Other points requiring consideration
are that during the talk that immediately preceded and
precipitated Upshaw's being sent home, the Union had
not been mentioned and Upshaw might well also have
offended Dobbs by having told Hill, jocularly or other-
wise, that he would take Hill's wife and certain other
possessions. However lightly Upshaw may have intended
the remark, it is clear that Dobbs, whose testimony with
reference to his daughter became quite emotional, took
what he had heard seriously. As Dobbs conducted him-
self with colorable justification, as though the talk be-
tween Upshaw and Hill was in earnest , I find no need to
determine the mindsets of Upshaw and Hill at the time.
Factually, however, except for the testimony of
Shores'28 who did not directly have anything to do with
Upshaw, there is no evidence that Upshaw had argued
with customers. Also, while Upshaw, by his own admis-
sion, had had considerable faults as an employee, these
had been tolerated from the very start of his employment
and he was permitted to pass his probationary period
Part of this tolerance, in fact, may have come from the
fact that Upshaw was Dobbs' son-in-law, as contended
by the Respondent, and part may also have been be-
cause, as found above, he was not quite as bad as
charged and that certain mistakes attributed to him at the
hearing may not really have been his fault. In any event,
27 Pay `N Save Foods, supra, Price's P,c-Pac Supermarkets, supra, Galar
Industries, supra, Wiese Plow Welding Co, supra
28 As found above, Shores' testimony is not generally credited where
it conflicts with that of other witnesses
1043
the Respondent's tolerance of Upshaw continued until
exactly 1 workday after he and Dudley did something
overt about bringing in a union Then, without any re-
corded prior discipline or warning, Upshaw was sent
home and later fired, and Dudley, in the context de-
scribed above, was invited to leave. In this connection,
the record reveals no complaints about Dudley's work.
I do not doubt that in sending Upshaw home on July
5, Dobbs had been angered both by his continued talk,
which interrupted the workflow, and by what Upshaw
had said about working conditions and about taking
Hill's wife, particularly as Upshaw was married to
Dobb's daughter. Contrary to the Respondent, however,
it is not clear how Dobbs, in response to this, could pro-
tect his daughter's welfare by taking away her husband's
livelihood.29
While Dobbs, on July 5, also may have been motivat-
ed to send Upshaw home for reasons beyond his union
activity, including genuine anger at Upshaw's remarks
and at his continued insistence upon talking after having
been told to get back to work, Shores' concerns relating
to Upshaw were more pointed, as evidenced by his inter-
view with Dudly shortly thereafter.
I find from the record as a whole that the above-speci-
fied factors, which include long tolerance of Upshaw's
faults, the timing of the discharge in relationship to Up-
shaw's overt union activity, the subsequent display of
union animus as to Dudley, who apparently had had a
good work record, the focusing of the Respondent's ac-
tions on the only two union adherents, and other re-
ferred considerations outweigh factors raised by the Re-
spondent. It therefore is concluded that the Respondent
has failed to rebut the General Counsel's prima facie case
by showing that Upshaw would have been discharged
without regard to his union activities. Accordingly, I
find that the Respondent violated Section 8(a)(3) and (1)
of the Act in terminating him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of
the Respondent described in section I, above have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
29 The complaint did not allege and I do not find that the Respond-
ent's conduct in sending Upshaw home on July 5 after he had com-
plained to other employees, among other things, about wages and work-
ing conditions was violative of Sec 8(a)(1) of the Act as a response to his
protected, concerted activity Upshaw, at the time, had been talking
when he should have been working.
Also, although Shores testified that the Respondent's busy season
ended in June, no contention was made by the Company, except for a
hint after the fact, that Upshaw was terminated for economic reasons
connected with diminution of work Rather, as the Respondent's basic
position is that Upshaw was discharged for cause , this matter has been
evaluated in that context
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act by discharging its employee,
Ronald Upshaw, and by thereafter failing and refusing to
reinstate him.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of
the Act.
It having been found that the Respondent unlawfully
discharged its employee Ronald Upshaw, I shall recom-
mend that it be ordered to offer Upshaw full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make him whole, with interest, for any loss of earnings
he may have suffered by reason of a discrimination
against him. Backpay shall be computed in accordance
with F. W. Woolworth Co.30 Interest on backpay shall be
computed as prescribed in Florida Steel Corp.31 Further,
it is recommended that the Respondent be required to
expunge from its files any references to Upshaw's dis-
charge and to notify him in writing that this has been
done and that evidence of his unlawful termination will
not be used as a basis for future personnel action against
him 32 It finally is recommended that the Respondent
post the attached notice.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed33
ORDER
The Respondent, Bartels & Shores Chemical Compa-
ny, Kansas City, Missouri, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining its employees
because of their union activities or sympathies.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
30 90 NLRB 289 (1950)
31 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB
716 (1962)
32 See Sterling Sugars, 261 NLRB 472 (1982)
33 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act.
(a) Offer Ronald Upshaw immediate and full reinstate-
ment to his former job, or, if his former job no longer
exists, to a substantially equivalent position of employ-
ment without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of earn-
ings he may have suffered by reason of the discrimina-
tion against him in the matter set forth in the section of
his decision entitled "The Remedy."
(b) Expunge from the Respondent's files any reference
to the discharge of its employee Ronald Upshaw and
notify him in writing that this has been done and that
evidence of his discharge will not be used as a basis for
future personnel action against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Kansas City, Missouri facility copies of
the attached notice marked "Appendix "34 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
34 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 "
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 or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against you because of your membership in or activities
on behalf of a union or because you have engaged in
concerted activities with other employees for the pur-
pose of collective bargaining and other mutual aid and
protection
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
BARTELS & SHORES CHEMICAL CO
WE WILL offer Ronald Upshaw immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position , without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge , less any net interim earnings , plus interest.
1045
WE WILL expunge from our files any reference to our
discharge of Ronald Upshaw , and WE WILL notify him,
in writing , that this has been done and that evidence of
his unlawful conduct will not be used as a basis for
future personnel action against him.
BARTELS & SHORES CHEMICAL COMPANY