Burris Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1975

217 N.L.R.B. 91 (N.L.R.B. 1975)

BURRIS INDUSTRIES, INC.
Burris Industries , Inc. and UBC, Southern Council of
Industrial Workers, United Brotherhood of Carpen-
ters and Joiners of America , AFL-CIO. Cases
26-CA-5185 and 26-CA-5263
March 25, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On December 12, 1974, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thorrity in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Burris Industries, Inc., Prairie, Missis-
sippi, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended Or-
der,
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 While we agree that certain of Respondent's officials and supervisors,
on April 25, 1974, engaged in surveillance and thereby violated Sec. 8(a)(1)
of the Act, we do not agree that the record clearly supports such a finding
concerning Supervisor Joe Moore Contrary to the Administrative Law
Judge's statement, Moore did not testify that he drove in the area of the
church
We also agree with the Administrative Law Judge that the Respondent
violated Sec. 8(a)(4) and (1) by reprimanding Mary Drake and Robbie
Anderson for being absent from work the morning of the hearing date It
is clear that each of them had received permission to be absent for the-whole
day from the personnel manager, who was fully aware that the hearing was
scheduled for 1 p.m„ and the comments of Supervisor Nabors to Anderson
at the time of the reprimand reveals the true reason therefor; i e , Respon-
dent's displeasure with the employees' testifying at the hearing. Cf. Royal
Manufacturing Company, 177 NLRB 264 (1969).
DECISION
STATEMENT OF THE CASE
91
THOMAS A. Ricci, Administrative Law Judge: A hearing in
this proceeding was held on October 22, 23, and 24, 1974, at
Aberdeen, Mississippi, on complaint of the General Counsel
against Burris Industries, Inc., herein called the Respondent
or the Company. The charges were filed on July 3, 1974 (Case
26-CA-5185), and on August 21, 1974 (Case
26-CA-5263), by UBC, Southern Council of Industrial
Workers, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, herein called the-Union, and the initial
complaint issued on August 20, 1974. The issues are whether
the Respondent violated Section 8(a)(1), (3), and (4) of the
Act. A brief was received after the close of the hearing from
the General Counsel.
Upon the entire record' and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Mississippi corporation with an office
and place of business in Prairie, Mississippi, where it is en-
gaged in the manufacture and distribution of furniture. Dur-
ing the past 12 months, the Respondent purchased and re-
ceived at this location products valued in excess of $50,000
directly from out-of-state sources, and during the same
period sold and shipped from this location products valued
in excess of $50,000 directly to points located outside the
State of Mississippi. I find that the Respondent is engaged in
commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
I find that UBC, Southern Council of Industrial Workers,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Picture of the Case
A union movement started among the approximately 425
employees at the. Respondent's Prairie plant early in April
1974. A number of union meetings were held in various loca-
tions during the next few months and a Labor Board hearing
on the Union's representation election petition was held on
August 13. One of the principal activists generating prounion
sentiment was Johnnie Drake. Between April 8, when the
first organizational meeting took place at the home of em-
ployee Eva Reese, and June 19, when he was discharged,
Drake successfully solicited signatures to about 120 union
cards and delivered them to the Union's business agent. A
principal allegation of the complaint is that Drake was dis-
I The General Counsel filed a motion to correct certain enumerated
typographical errors in the record transcript of testimony. The motion
stands unopposed and is granted.
217 NLRB No. 25
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged because of his union activities and that thereby the
Respondent violated Section 8(a)(3) of the Act.
The other major charges are that agents of the Company
resorted to coercive conduct aimed at intimidating the em-
ployees so that they would abandon their union resolve. This
improper conduct, as alleged in the complaint, took the form
of illegal interrogation, threats. of economic retaliation, and
overt surveillance of union meetings-all said to have vi-
olated Section 8(a)(1).
There are a number of direct questions of cred-
ibility-employee witnesses called by the General Coun-
sel telling what they heard supervisors say and what they saw
them do, and the Respondent's witnesses, virtually all com-
pany agents, ostensibly giving the first group the lie. This is
true of all the alleged violations of Section 8(a)(1). As to the
discharge of Drake, there is also a credibility issue-was it or
was it not he who worked on the defective chair parts which
the Respondent says justified a reprimand and consequent
dismissal because it was the third he had received in 9
months? Resolution of the specific question, however, does
not dispose of the discharge issue. The theory of complaint
as to Drake is that, even assuming he made certain mistakes
at work that day, the Respondent seized upon the incident as
a pretext to get rid of him, and that its real motivation was
to remove from the plant so outstanding a union protagonist.
An ultimate finding of unlawful discharge would be an infer-
ence, justified or not justified by consideration of all relevant
facts.
B. Violations of Section 8(a)(1)
At the first gathering of employees with Union Business
Agent Bracken, at the home of Eva Reese on April 8, 1974,
there were eight or nine employees, including Mrs.
Mary Drake, her three sons-Johnnie, Clinton, and
Herman-and Mabel Drake, a daughter-in-law. Everybody
signed union cards and the next day, according to uncon-
tradicted and therefore credible testimony, Johnnie Drake
started soliciting signatures for others; he had 23 very quickly
that day.
The next day, at about noon, a floorlady, not herself a
supervisor in the statutory sense, told Mrs. Drake that one of
her boys had some union cards, and pointed to Johnnie as the
one. The mother, apprehensive about her son, went to him
and in the immediate presence of Supervisor Robert Criddle
asked was it true. She received the answer many mothers
receive today-that if he did have union cards it was none of
her business. Later in the afternoon Billy McCaney, the Re-
spondent's personnel manager, came to Mrs. Drake's sewing
machine, and there was talk about the Union; here the first
credibility question emerges. According to Mrs. Drake,
McCaney said: "Mary, a boy told me Pony [Johnnie's
nickname] had some union cards," and when the lady an-
swered she did not know, he continued with: "You'd better
talk to him, because if he gets fired on account of union, that
would go in on his record and he won't get no job at none of
these other plants." The employee said she would talk to her
son. Mrs. Drake went on to testify that McCaney returned to
her place of work later the same afternoon, to say: -Mary,
we are going to have to put the hurt on Pony.' And I looked
up at him and I said, `What now, Billy?' And he said, `A boy
told me that Pony tried to get him to sign a. Union card."
Now Mrs. Drake said the personnel manager should confront
the two-her son and the other boy-to find out who was
-telling the truth. Her final detail of this incident is that the
next day, at the water fountain, McCaney asked her had she
inquired of her son about his having any union cards.
The personnel manager gave a different version. He started
by denying he asked did the son have union cards, or voicing
any threats. He testified Mrs. Drake called him to her work
station and "... asked had I heard a rumor that Johnnie, or
Pony she calls him, had union cards," and that when he
answered he had heard the rumor she said she did not believe
it. On cross-examination, the witness then put it this way:
"Mary called me to her machine and asked me if I had heard
that Johnnie, or Pony as she called him, was passing out
union cards or had union cards." Asked had he then told the
woman "to be sure that she did talk to him;" the witness
admitted: "I could have said it."
One of the few clear facts shown by this record is that Mrs.
Drake-regardless of whether she has or does not have just
cause-is frightened by the danger of retaliation from man-
agement for any kind of conduct of which it disapproves.
When she went to her son to inquire did he really have union
cards, after the floorlady mentioned the possibility, she did so
because "I wanted him to deny it because I didn't want him
to get fired." Four months later she was subpenaed by the
Union to testify at the Labor Board hearing and did so. The
next day her immediate supervisor, Laverne Nabors, with
whom she has worked for years, asked her to come to the
office without telling her why. Mrs. Drake had no idea why
she was wanted in the office. The following is from her uncon-
tradicted testimony:
... she same to my machine and told me, "Come on
Mary, you got to go with me." And I said "Where are
you going?" And, she said, "You got to go to the office."
I said, "Miss Lavern, please don't take me to the office."
She said, "Come on, Mary, you got to go with me, now,
come on." I said, "Miss Lavern, please, ya'll going to fire
me." She said, "No, when something's going to happen,
don't I always warn you?" And I told her, "Yes." She
said, "Well, trust me." And I told her, "Okay."
If McCaney is to be believed, this frightened woman in-
formed on her son by volunteering to the personnel manager
the knowledge that the young man "was passing out union
cards." I do not credit McCaney, both on the ground of the
relative demeanor of the two witnesses, and on the basis of
rational human probabilities. There is more reason for reject-
ing the testimony of the personnel manager. Several em-
ployees testified that on April 25, while 30 or 40 employees
were gathered in front of the Morgan Chapel Church in
Aberdeen, 8 miles away from the plant, 4 supervisors drove
slowly back and forth in front of the premises and looked at
who was there. One of the supervisors identified was
McCaney. Denying that he had engaged in any act of surveil-
lance, McCaney started by saying he simply happened to pass
near the church that evening, a block away, shortly before 7
p.m., but not later. Asked on cross-examination what he was
doing in that area that night, he answered: "I was just riding
9f
BURRIS INDUSTRIES, INC. 93
Q. Was this just a leisurely drive or what?
A. No.
Q. Well, you were riding. Why were you riding? Were
you going somewhere or coming from somewhere?
A. Not really. I knew there was a union meeting going
on.. . someone told me.... I knew it was in a church.
McCaney also denied having interrogated Mrs. Drake about
her son's activities the following morning on April 9 at the
water fountain.
On the credited testimony of Mrs. Drake set out above, and
that of Johnnie Drake that he saw McCaney twice drive
slowly in front of the church where the employees were wait-
ing to hold their union meeting, I find that the personnel
manager coercively interrogated Mrs. Drake about the union
activities of her son, threatened he would be discharged for
union activities, threatened to blacklist him against other
possible employment because of such activities, and spied
upon the union meeting of the employees. I find that by each
of these acts of its personnel manager the Respondent vi-
olated Section 8(a)(l) of the Act. -
Mrs. Drake and her son, Clinton, testified they saw Sam-
mie Carson, a supervisor, pass slowly past the gathered em-
ployees in front of the church before the meeting of April 25,
make a U-turn at the end of the street, and slowly drive back
again . Johnnie Drake said that in addition to seeing Carson
pass twice he also saw Supervisor Joe Moore (four times) and
Plant Manager Byron Wilson (twice) drive slowly by, always
while the employees stood waiting in front of the building.
Clinton testified he too saw these other three management
people drive by slowly. These witnesses were corroborated by
employee Eva Reese as to both Wilson and Carson.
The denials offered by Wilson, Carson, and Moore are
unconvincing. Wilson said he did drive by the church but that
it was earlier and he saw no one. Then he added he went there
because he "had been alerted" to the fact there would be
union activities "within the northeast area of Mississippi." "I
had also heard that afternoon or sometime a day or two prior
to that time that there was to be a union meeting. . . . Then
I heard later that afternoon that it was going to be at a church
in Aberdeen, and I didn't know exactly where the church
was, And after I got off work and went home that afternoon,
I drove down just to locate the church." Carson said helives
5 miles away from Aberdeen in one direction and that he that
evening went to dine at a restaurant 5 miles out of town in
the other direction, and just happened to drive by the church
when the employees were gathered to hold their union meet-
ing. Denying any spying objective, he said that when some
employees yelled at him he made a U-turn and went away.
He had no reason for making a U-turn, for he said he knows
of no dead-end street in that area.
Moore told a story of his just being on the way to feed his
horse in the country when he passed in the area of the church.
This was mass surveillance , planned as virtually admitted
by the two top officials of the Company-the general
manager and the personnel manager . The lower supervisors
were simply following the pattern set by top management. I
find the company agents deliberately set out to spy upon the
employees' union activities, to ascertain the identity of the
particular persons involved, and to intimidate them by their
very presence in such numbers that night. By all this the
Respondent violated Section 8(a)(1) of the Act. The mass
activity reveals a determination, however illegal the methods,
to put a stop to the union campaign.
Moore's testimony about a talk with Johnnie Drake the
next morning was no more persuasive. Drake testified Moore
came to him and asked had he attended the meeting the night
before, and that in response he said yes, and invited Moore
to come next Thursday. While ostensibly denying illegal in-
terrogation, Moore said he had heard there would be a union
meeting at a church the night before, he went out of his work
department into Drake's work area the next day, and put his
question this way: "I asked him if he carried his Bible to
church'last night." He was interrogating the employee, pure
and simple . I find the inquiry to have been still another-
violation of the Act.
Mrs. Drake also told of being questioned by Laverne Na-
bors, her, supervisor, the morning after this meeting. She
testified Nabors first asked had she gone to the meeting, and
then kept asking were employees Jenkins or Cripper or Pruitt
there. Drake answered she recalled no one except herself, her
children, and Eva Reese. I do not credit Nabors' denials of
all this interrogation, for Mrs. Drake's testimony is com-
pletely consistent with the proven activities of like kind by the
other management representatives. Supervisor Nabors' inter-
rogation of Mary Drake constituted further violations of Sec-
tion 8(a)(1) chargeable to the Respondent.
The unlawful surveillance continued. There was another
union meeting on about May 16 at a Masonic Temple in the
town of Prairie, close to the Respondent's plant, Earnest
Ewing, then an employee, and Eva Reese testified they saw
Johnnie Earnest, a supervisor, slowly drive by while seven or
eight employees were waiting to go into the meeting. Ewing
also said that the day before Earnest told him, ". . . to go and
see who was going to be at the meeting and come back and
tell him." Ewing continued that the morning after the meet-
ing he told the supervisor the names of three employees who
had attended the meeting-Mary Drake, Johnnie Drake, and
Mabel Drake-and that when he could rememeber no more
names the supervisor took him through the production area
and had him point out others to him. Ewing said he did that.
He then added that later in the day Supervisor Earnest came
back to him to say he had reported the information to Plant
Manager Wilson and Personnel Manager McCaney and now
wanted to thank him. The supervisor's story is that he did
drive near the Masonic Temple that night, "made the circle
there and came back," "there was some people there," and
that then he went to his bootlegger. "I didn't know what was
going on there I just assumed it aught be a union meeting.
As far as knowing, I didn't know." He denied asking the
employee to go to the meeting or to report who had been
there. He said Ewing simply volunteered, told him some
names the next day. The supervisor then testified: "I said who
else and he told me some more people." Half admissions and
half denials will not do in a total picture of determined sur-
veillance such as this one. I credit employee Ewing, and I find
that by Supervisor Earnest's request that Ewing go to the
meeting for the purpose of reporting, by his going to the
Masonic Temple to see who might be there, and by his asking
the employee for additional names of employees who had
attended the meeting, the Respondent repeatedly violated
Section 8(a)(1) of the Act.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Comment on just one other instance of planned surveil-
lance will suffice. Bracken, the union representative, spent
much time near the plant in and about the small town of
Prairie; perhaps half a mile away from the plant, the town
consists of no more than two service stations , a grocery store,
a dairy bar, and a post office, all clustered on the highway.
He drove away from the stores one day to call on Ewing, and
Supervisor Moore followed him in his own automobile.
Bracken said Moore turned from one highway into another
exactly as he was doing, drove past Ewing's home after
Bracken had stopped and was talking to Ewing on the grass,
and then drove back and forth, passing four times in front of
the employee's home before returning back in the direction
from which he had followed the union agent. Moore admitted
he drove behind Bracken, turned left into a second road ^ as
Bracken did, "went on down the road . . . turned around and
came back."
Q. Why did you go two miles past his car and decide
to turn around and come on back to the plant?
A. I decided I'd go back to the plant.
Q. Why at that point and time did you decide to make
a U turn and come back, is what I'm trying to ask?
A. I just went back to the plant.
As it happened, at the moment Ewing was no longer an
employee of the Company, but there can be no question
Moore was carrying out the illegal surveillance strategy
planned by the Respondent. It was clearly implementation of
a company policy.
The General Counsel also offered testimony intended to
prove still further acts of improper surveillance, largely upon
the organizational activities, of Business Agent Bracken, on
the public street in front of the plant and at the cluster of
stores about 500 yards away, the small area called Prairie.
The spying here is alleged to have occurred in September. The
evidence does not suffice to prove any unfair labor practices
under these complaint allegations and I find none. In warm
weather many employees, and supervisors as well, make it a
practice to sit in their cars to eat lunch, even under the trees
bordering the street outside the plant property. Many more
drive each day at noon hour to the nearby stores to buy
sandwiches or drinks. They clutter the area while eating.
Bracken was there many times, at both locations, and some-
times talked to employees. He, and others,sometimes saw one
supervisor or another "look" at him. Somebody tried to take
pictures of one or two supervisors sitting in the cars while
eating. It is hardly proof of illegal surveillance, in the "look-
ing" because the supervisor "ducked" in his seat and did not
want to be photographed.
C. Discharge of Johnnie Drake
Drake's job was primarily to sew chair backs coming
through his work station, chairs of many different styles and
colors. Part of his time was spent doing other kinds of work,
some called tying buttons to stuffed chairs, as time permitted
and as the flow of work required. Robert Criddle, the fore-
man of the department, also, part of his time, did sewing of
backs at the machines, as well as other work, again as the
varying production needs demanded. On the morning of June
19, 1974, between 7 a.m., when he arrived, and 10 a.m., when
he was summarily discharged, Drake did both kinds of work.
He testified that after sewing a small number of backs, he was
told by Criddle to do the tying, and that he spent most of the
remaining time doing only that. He also testified that Criddle
sewed backs in greater number that morning, indeed that
Criddle sewed most - of whatever backs came through. In
direct conflict, Criddle insisted at the hearing he did no sew-
ing of backs at all that day until after Drake was discharged.
Whoever it was that sewed which backs that morning, there
was agreement among the witnesses at the hearing that some
of the chair backs sewed early in the morning were imper-
fectly made and needed correction. There was also seeming
agreement that the defective ones were all styled model 369,
as distinguished from other styles also going through. There
had for several months been complaints-from customers
and from various officials within the company-about this
same error in sewing, both on model 369 chairs and on other
models.
On June 19, two management agents from the Respon-
dent's main office were making their usual monthly visit to
the Prairie plant, and walked through the production area
with Manager Wilson. They noticed some defectively sewn
backs. It is not possible to make a clear and definitive finding
of what happened then, for the employee witnesses disagree
with the Respondent's witnesses, and in a critical sense the
Company witnesses were inconsistent among themselves. But
in any event, within a matter of minutes Drake was given a
written reprimand reading "for not sewing bottom of backs
right," and immediately discharged.
At the moment that the defective model 369 backs were
noticed by the management officials, Drake and Criddle got
into a dispute over which of the two had worked on them,
each blaming the other; they continued the argument, each
denying responsibility for those particular errors, at the hear-
ing. Their protests were to be expected, what with the poor
work being somehow tied to one man's loss of a job and the
same issue becoming a major question in outright litigation.
On the pinpointed question of who worked on those particu-
lar few chairs at that particular time I cannot accept the
conclusionary insistence of either man. Drake said he did
work on some backs on and off during the morning, but felt
sure he never touched a model 369 chair. At one point he said
the visitors were looking at "My work ... the work that I
had-was supposed to be done." He then clarified he meant
his work on other model chairs. Criddle said he did not work
on any chairs at all before 10 o'clock, but Virgil Kirby and
Clinton Drake, both working in the same department and
very close by, testified they saw Criddle working on chair
backs. They might not have been able to see it was model 369
chairs he did, but they were certainly close enough to see it
was chair backs. Moreover, it is a fact Criddle does often
work on such backs; he even admitted he had sometimes
himself sewn the backs improperly. Despite the foreman's
denial, I do credit the testimony of the-three employees that
Criddle did work on chair backs that, morning, and he may
very well have made errors that day also. In the circum-
stances, nevertheless, it is possible Wilson, the manager,
could have formed the impression these particular bad backs
had been made by Drake.
I think, however, that the essential question raised by the
complaint over Drake's discharge is not answered with final-
BURRIS INDUSTRIES, INC. 95
ity either by a finding it was he who made those errors, or by
a theory that Wilson thought he had made them. There are
other facts pointing to an inference Drake was not discharged
because of defective work . He testified very clearly that when
the subject of the bad chairs came up, with the visiting offi-
cials present, the manager told Criddle to give Drake a repri-
mand , and that when the foreman said Drake already had
two, Wilson gave the foreman a direct order to fire him then
and there . When called to testify as an adverse witness at the
start of the hearing , Wilson said flatly it was Criddle who
made the decision to terminate Drake, and that he was not
sure anyone else in management had anything to do with it.
In complete contradiction , Criddle's testimony shows clearly
he was disassociating himself from the decision to fire the
man. He said it was Keith, the plant superintendent, a man-
agement agent over him but under Wilson , who instructed
him to give Drake a reprimand . When Criddle , still as he
testified , answered by telling Keith the employee already had
two, he was revealing his reluctance even to make out a
reprimand slip, and only called Drake to the office to be fired
after Keith said to him he, Keith, "had no alternative." To
say, as Wilson would have it, that Criddle decided Drake had
to go is simply not true. One asks: why this deception by the
plant manager at the hearing?
In fact, all three of the Respondent 's witnesses-Wilson,
Keith, and Criddle-spoke at the hearing as though the deci-
sion to dismiss Drake was a mechanical functioning of a
numerical formula , with no human thinking or consideration
entering into the matter at all. Wilson said that all he did was
say to Keith, "Take care of this problem," walked away and
was not involved in whatever happened later . Keith also said
his part in the affair was limited to calling Criddle and
another foreman , and "I pointed out the problem to them and
told them to get the problem solved." He -added that when
Criddle said he already had once talked to Drake, he, Keith,
told him "put him on reprimand." And Criddle, as already
set out above , simply said there were already two reprimands.
The truth is he had no part in any decisionmaking process.
The Respondent's affirmative defense of discharge for cause
seems to be-it filed no brief-that whenever it is proved an
employer writes out a third reprimand slip for a man, and
that it has discharged other employees to whom three repri-
mand slips were issued , it follows of necessity and conclu-
sively there could have been no motivation in the act of
discrimination except automatic application of a rule. The
approach removes from any consideration the overt unfair
labor practices committed by the management representa-
tives as otherwise shown on this record . A reading of the
testimony leaves the impression the company witnesses were
deliberately avoiding the question whether Drake was
released for improperly sewing backs . With this, the rule,
which has no mind, becomes the determining factor in the
case, and there can be no charge of illegal intent made against
a rule.
I do not think the union animus in the Respondent re-
vealed by this total record, aimed against the union move-
ment generally and also against Johnnie Drake individually,
can be so facilely swept away and ignored . The widespread
campaign to survey the union activities , in which most of the
managers engaged , reveals a clear intent to ferret out the
unioneers . Drake was seen more than once by his supervisors
at the - union meeting locations . When Supervisor Earnest
asked Ewing to go to the meeting and report back, Ewing
gave the supervisor Drake's name the next day . Wilson's
conclusionary assertion of innocence is unconvincing for
many reasons . Asked by his own lawyer what Drake was
doing when he arrived that morning with the visitors, Wilson
said "He was sitting at a sewing machine sewing buttons."
This is exactly what Drake testified to. In the next breath the
lawyer straightened out the witness' testimony : "Q. He was
at the machine sewing backs when you got there? A. Yes,
sir." The manager's first answer is strong indication Drake's
error in sewing a particular kind of chair back was not the
real reason for his dismissal . Wilson admitted that model 369
chairs were also produced at other plants of the Respondent,
and when, a few weeks earlier, Drake was seen to,make such
mistakes, Criddle told him about it but did nothing more.
Criddle also admitted Drake was "a good worker," "a hard
worker." In a plant with a 40-to -50-man turnover each
month , such an employee would hardly be dismissed out of
hand for errors that had been passed over before.
But most significant of all is the initial threat of retaliation
against this man when he started soliciting union cards all
over the plant. McCaney, the personnel manager, told his
mother the first day he could be "fired on account of Union."
Instead Drake persisted , and by June had successfully solic-
ited perhaps 100 more cards. All things considered, on this
total record I do not credit the general testimony of the
management witnesses . I find that Drake was discharged
because of his prounion activities and that thereby the Re-
spondent violated Section 8(a)(1) and (3) of the Act.
D. Reprimands forAssisting the Union at the NLRB
Hearing
Mary, young Drake 's mother, and Robbie Anderson, have
both worked for this company for 7 years. Neither was ever
criticized for her work and neither was ever given a repri-
mand of any kind . Each of them was subpenaed by the Union
to appear as witnesses at the Board hearing on the Union's
representation petition and testified there on August 13,
1974. They were served with the subpenas on the evening of
the day before at home and the next morning called the plant
to say they would not be in that day. There is no issue as to
what they told the company representative on the telephone.
Mrs. Drake called at 6:55 a.m. and talked to the personnel-
manager, saying she would not be in . When he asked why, she
said : "I'm going to a National Labor Relations Board hear-
ing," and he answered : "Well,, all right." Anderson called
about 8 : 15 and also spoke to McCaney . "I said, `Billy, this is
Robbie. I've got to go to Court this morning, today.' And he
asked me what time, and I told him at 1 o 'clock. He said
okay. And I said well I'll see you tomorrow . And he said, well
fine. That was the end of the conversation."
The hearing was scheduled for 1 p.m., but Bracken, the
union officer, had asked the two ladies to meet with him in
the morning to discuss the facts they would bring out. At the
close of the hearing, after the two had testified, the Respon-
dent's lawyer advised the Company to put a reprimand on
each of the two women for having been absent from work
during the morning without proper justification. As ex-
plained at the hearing by the Respondent this was a correct
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing to do because the hearing was not scheduled to start
before 1 p.m. The complaint alleges that by so reprimanding
these two employees the Respondent illegally coerced them
in their statutory right to assist the Union, thereby violating
the Act, and I so find.
The Respondent certainly knew when the women called
that morning that the hearing was scheduled for the after-
noon, for its agents were there themselves. Anderson even
told the personnel manager she was scheduled to testify at 1
p.m. If she were violating . any "established policy," as
Manager Wilson said at the hearing, the time to tell Anderson
so was when she telephoned early in the morning. I am con-
vinced the reason these two written reprimands were given
the women was to intimidate them against further assistance
to the Union. When Anderson was in the office the next day
and protested against the reprimand, her supervisor, Nabors,
asked her "why are you turning, against the company." This
was the employee's testimony. Nabors said it was "not in
those terms ..., I asked why she got mixed up ...."
Q.... What are you referring to? The Union, is that
what you're referring to?
A. Yes.
Q. Is that what you asked her, why did you get mixed
up in the Union?
A. No, I didn't say the union. I said why did you get
mixed up in this... .
The purported assertion of innocuous reprimand is not
strengthened by Manager Wilson's belated attempt to inject
an extraneous element in defense. At one point he asserted
that one of the women deserved the reprimand because on the
telephone she had said she had to go "to an industrial rela-
tions hearing," as distinguished from a National Labor Rela-
tions Board hearing. I find that the Respondent reprimanded
Mary Drake and Robbie Anderson because they participated
in the National Labor Relations Board hearing on behalf of
the Union and thereby violated Section 8(a)(1) and (4) of the
Act.
THE REMEDY
In view of the unfair labor practices found to have been
committed, the Respondent must be ordered to take appro-
priate remedial action. This will include, of course, an injunc-
tion against repeating such unfair labor practices, and an
order directed towards affirmative action aimed at undoing
the effects of the improper conduct. Johnnie Drake, who was
illegally discharged, must be restored to his former employ-
ment, or an equivalent position, and made whole for any loss
of earnings he suffered in consequence. And the unfair labor
practices committed require a broad cease-and-desist order
binding the Respondent not to commit further unfair labor
practices of any kind.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAw
1. By discharging Johnnie Drake on June 19, 1974, the
Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(3) of the Act.
2. By recording reprimands issued against Mary Drake and
Robbie Anderson, the Respondent violated Section 8(a)(4) of
the Act.
3. By the foregoing conduct, by interrogating employees
concerning their union sentiments and activities, by threaten-
ing to discharge employees for union activities, by threaten-
ing to blacklist its employees, by spying upon union meetings,
by asking employees to attend the union meetings and report
back to management the identity of employee participants,
the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: ,
ORDER'
The Respondent, Burris Industries,, Inc., Prairie, Missis-
sippi, its officers, agents, successors, and assigns, shall:
1. Cease_ and desist from: -
(a) Discharging or in any other manner discriminating
against its employees because of their union activities.
(b) Issuing reprimand notices to, and placing them in the
files of, employees because they participate in National Labor
Relations Board hearings.
(c) Coercively interrogating employees concerning their
union sentiments and activities, threatening to discharge em-
ployees for union activities, threatening to blacklist em-
ployees, spying upon union meetings, or asking employees to
attend union meetings and to report back to management the
identity of employee participants.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organ-
ization, to form, join or assist UBC, Southern Council of
Industrial Workers, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or, other mutual aid or
protection, or to, refrain from any and all such activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
2 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
BURRIS INDUSTRIES, INC.
(a) Offer Johnnie Drake immediate and full reinstatement
to his former position or, if such position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges , and make him whole
for any loss of pay or any benefit he may have suffered by
reason of the Respondent 's discrimination against him.
(b) Preserve, and upon request, make available to the
Board or its agents, for examination and copying , all payroll
records, social security payment records, timecards , person-
nel records and reports , and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Expunge from its records the reprimand notices issued
to Mary Drake and Robbie Anderson on August 14, 1974.
(d) Post at its place of business in Prairie, Mississippi,
copies of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's represen-
tative, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted . Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered , defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 26, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
3 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
97
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated the Federal law by discharging an
employee because he engaged in union activities and by com-
mitting other acts of illegal coercion:
WE WILL NOT coercively question our employees con-
cerning their union sentiments or activities.
WE WILL NOT threaten to discharge our employees be-
cause of their union activities.
WE WILL NOT threaten to blacklist our employees
against any further employment because of their union
activities.
WE WILL NOT spy upon the union activities or union
meetings of our employees.
WE WILL NOT request our employees to attend union
meetings and to report to management the identity of
employees participants.
WE WILL NOT discharge or discriminate against any
employees for engaging in concerted or union activities.
WE WILL offer Johnnie Drake immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent position.
WE WILL pay Johnnie Drake for any earnings he lost
as a result of our discrimination against him , plus 6-
percent interest.
WE WILL expunge from our records the reprimand no-
tices given to Mary Drake and Robbie Anderson on
August 14, 1974.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
right to self-organization , to join or assist UBC, South-
ern Council of Industrial Workers, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, or any
other labor organization , and to engage in other con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.
BURRIS INDUSTRIES, INC.