CDR Mfg.

National Labor Relations Board - Board Decisions

Oct 21, 1997

324 N.L.R.B. 786 (N.L.R.B. 1997)

786
324 NLRB No. 122
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We find it unnecessary to pass on the judge’s finding that the
Respondent’s action in permitting employee Barbara Haynes to fin-
ish out the week was part of an effort by the Respondent to learn
more about the union campaigns, with the prespect that her termi-
nation could be rescinded. This matter was not alleged as unlawful
in the complaint, and the judge’s finding is unnecessary to the con-
clusion that Haynes’ discharge was unlawful.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
3 For the reasons stated by the judge, Member Higgins concludes
that Facundo is a supervisor. However, he also concludes that, at the
very least, she is reasonably perceived by employees to be an agent
of the Respondent.
4 Our dissenting colleague contends that Haynes’ use of the term
‘‘supervisor’’ in her testimony should be interpreted not as Haynes’
quote of the Respondent’s president, but rather as Haynes’ descrip-
tion of her own view of Facundo’s status. We find this to be a
strained reading of Haynes’ testimony. Prior to testifying about the
remark of the Respondent’s president, Haynes had asserted her belief
that Facundo was a supervisor. Thus, it does not make sense, in our
view, that Haynes would have felt the need to repeat her personal
view of Facundo’s supervisory status in the middle of her quote of
the Respondent’s president, rather than simply stating her recollec-
tion of what the Respondent’s president had said.
5 Our colleague contends that an agency finding is not warranted,
in part, because the meeting in which the Respondent referred to
Facundo as a supervisor occurred little more than a week after
Facundo had interrogated an employee and made threats of plant
closure. We find no merit to this contention. That the Respondent
identified Facundo as its agent after Facundo made such statements,
rather than at some earlier date, does not change the impact
Facundo’s statements would have on employees. That is, if a person
engages in 8(a)(1) conduct, and that person is later perceived by em-
ployees to be an agent of the Respondent, the coercive impact exists,
at least as of the later date.
Chairman Gould further notes that the Respondent has not ex-
cepted to the judge’s finding that Facundo is an agent of the Re-
spondent.
CDR Manufacturing and International Brotherhood
of Electrical Workers, AFL–CIO. Case 9–CA–
33316–1, –2, –3
October 21, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On April 4, 1996, Administrative Law Judge Martin
J. Linsky issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order as modified.2
The judge found that Kathy Facundo is a supervisor
and agent of the Respondent. For the reasons given
below, we agree with the judge that Facundo is an
agent of the Respondent. Accordingly, it is unneces-
sary to pass on the finding that she also is a super-
visor.3
Employees testified that Facundo is their supervisor.
Further, the record shows that she transfers employees
to different work assignments, reprimands employees
for slacking off, schedules overtime, signs timecards,
and grants time off. And, according to employee Bar-
bara Haynes, during the critical period the Respond-
ent’s president called an employee meeting and told
her to ‘‘go to Kathy Facundo, supervisor,’’ who was
keeping attendance at a captive audience meeting.4
It is clear that employees perceived Facundo to be
aligned with management. It is also apparent, as evi-
denced by the remark of the Respondent’s president
and by management’s assignment of Facundo as the at-
tendance keeper at a captive audience meeting, that
management acted in a manner that is consistent with,
and that contributed to, the employees’ perception. We,
therefore, find that employee Christy Randolph could
reasonably believe that Facundo spoke and acted for
management when she interrogated Randolph and
made threats of job loss and plant closure. Roskin
Bros., Inc., 274 NLRB 413, 421 (1985); Elias Mallouk
Realty Corp., 265 NLRB 1225, 1234–1235 (1982); and
B-P Custom Building Products, 251 NLRB 1337, 1338
(1980).5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, CDR
Manufacturing, Somerset, Kentucky, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Within 14 days from the date of this Order,
offer Nicole Adams, Mary Collier, Linda Girdler, Sue
Hall, Barbara Haynes, Tracey Haynes, Franka Johnson,
Christy Randolph, and Carrie Vanover full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.’’
2. Substitute the following for paragraphs 2(d), (e),
and (f).
‘‘(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful em-
ployment actions, and within 3 days thereafter notify
the employees in writing that this has been done and
that these actions will not be used against them in any
way.
‘‘(e) Preserve and, within 14 days of a request,
make available to the Board or its agents for examina-
tion and copying, all payroll records, social security
payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
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787CDR MFG.
1 I note that the Respondent has combined its exceptions and brief
in one document, and it has argued that ‘‘there is no evidence that
CDR authorized Facundo to speak for CDR on the question of union
organization’’ and that ‘‘[e]xpressing an opinion about what she re-
called Don Curtis saying five years ago hardly portrays Kathy
Facundo as a spokesman for Don Curtis or CDR.’’ Accordingly, I
believe that the Respondent has adquately placed in issue the cor-
rectness of the judge’s alternative finding of agency.
2 I recognize, as my colleagues suggest, that circumstances indicat-
ing that an employee is an agent on a given date may suggest that
actions by that individual on an earlier date were also taken on be-
half of the principal. My point here, however, is that the statements
made by Facundo on September 26 in the course of the alleged in-
terrogation were clearly not made in the course of her later attend-
ance-taking assignment, and in no way suggested that she was
speaking as an agent of the Respondent. Hence, the September 26
statements do not constitute evidence supporting a finding that
Continued
‘‘(f) Within 14 days after service by the Region,
post at its Somerset, Kentucky facility copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since October 11, 1995.
‘‘(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER FOX, dissenting in part.
I would dismiss the unfair labor practice allegations
based on the conduct of Kathy Facundo because I
would not find that the record supports the conclusion
that Facundo is either a supervisor within the meaning
of Section 2(11) of the Act or an agent of the Re-
spondent for the purpose of attributing to it the alleg-
edly unlawful acts in which she engaged.
First, as to the question of Facundo’s supervisory
status, the judge’s findings regarding her authority are
clearly deficient because they do not establish that she
exercised independent judgment in connection with
any of her allegedly supervisory actions, e.g., transfer-
ring employees between work assignments, signing
timecards, reprimanding employees. See, e.g., Provi-
dence Hospital, 320 NLRB 717 (1996); Clark Machine
Corp., 308 NLRB 555 (1992). In any event, I note that
there is no majority finding that Facundo is a super-
visor.
With respect to the agency issue,1 in determining
whether an individual is an agent for any given action,
the Board applies common law principles of agency.
Alliance Rubber Co., 286 NLRB 645 (1987). My col-
leagues, for good reason, do not purport to find evi-
dence showing that Facundo was actually authorized to
speak for the Respondent on the subject of the union
campaign. Instead, they appear to be finding that she
had apparent authority to do this. Under the concept of
apparent authority, ‘‘an individual will be held respon-
sible for actions of his agent when he knows or
’should know’ that his conduct in relation to the agent
is likely to cause third parties to believe that the agent
has authority to act for him.’’ Id. at 646, citing Re-
statement 2d, Agency § 27. In other words, an agent
cannot create his own authority: actions of the prin-
cipal creating the appearance of that authority are re-
quired.
The actions of the Respondent regarding Facundo on
which my colleagues rely are merely (1) that it gave
her authority to take various actions regarding employ-
ees’ daily work assignments and scheduling in a man-
ner that did not necessarily rise to the level of super-
visory authority within the meaning of Section 2(11)
of the Act, (2) that it assigned her to take attendance
at a captive audience meeting and, (3) that the Re-
spondent’s president (Don Curtis) told employee Bar-
bara Haynes to ‘‘go to Kathy Facundo supervisor’’ be-
cause she was taking attendance. I find all of these in-
sufficient.
The minor authority over daily worktasks shows
nothing more than that Facundo has the authority of a
leadperson. As to Facundo’s duties in connection with
the captive audience meeting, they did not rise above
merely clerical tasks that might be assigned to any
low-level employee without endowing that employee
with authority to speak for the Employer on its views
as to unionization. Had Facundo made antiunion state-
ments or interrogated employees about their union sen-
timents in the course of her attendance taking, a case
either for apparent authority or for actions within the
scope of authority might be made out. See Alliance
Rubber Co., supra, 286 NLRB at 645 (where employer
had actually authorized polygraph examiners to interro-
gate employees, the questions they asked about union
activity could be found within the general scope of au-
thority actually conferred). Her interrogation and report
about what she thought were the views of President
Curtis, however, were uttered on September 26, more
than a week before she performed the attendance-tak-
ing duty.2
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788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Facundo was acting as the Respondent’s agent for more than simply
attendance-taking purposes on October 5. In the final analysis, the
agency finding stands or falls on Haynes’s use of the term ‘‘super-
visor’’ in her testimony. For the reasons stated above, I find that in-
sufficient to carry the General Counsel’s burden on this issue.
3 In assessing Haynes’ testimony, I am not disputing the judge’s
decision to credit her testimony but merely making my own interpre-
tation of that testimony, as the Board is free to do without disturbing
credibility resolutions.
Finally, in citing President Curtis’s reported remarks
in sending employee Haynes to Kathy Facundo to have
her name recorded, my colleagues are relying on the
following testimony of employee Haynes concerning
the day of the October 5 captive audience meeting:
We were met at the break room door, this was as
I was walking into work and I was told by Don
Curtis to remain in the break room and to go to
Kathy Facundo, supervisor, and tell her your
name so she could check your name off of the
computer sheet that she had.
Since it was Haynes’ assertion elsewhere in her testi-
mony that Facundo was a supervisor, it is not at all
clear whether in using the term ‘‘supervisor’’ here, she
is quoting President Curtis, as my colleagues seem to
believe, or simply interpolating her own characteriza-
tion of Facundo’s status. Certainly ‘‘go to Kathy
Facundo supervisor’’ is not a plausible account of what
an idiomatic speaker of English would say, and it is
thus a thin reed on which to predicate a finding that
the Respondent had created apparent authority for
Facundo to speak on its behalf a week before the cap-
tive audience meeting, when she interrogated a fellow
employee and threatened that unionization would have
dire consequences.3
In the cases on which my colleagues rely, the puta-
tive agents were either placed by their principals in po-
sitions much closer to management or, with manage-
ment’s apparent approval, convened antiunion meetings
at which admitted supervisors or high-level managers
appeared. In Roskin Bros., Inc., 274 NLRB 413, 421
(1985), the individual found to be an agent was an as-
sistant warehouse manager who was ‘‘often together’’
with the manager, who functioned as the manager’s
‘‘’right hand man,’’’ and who spoke for him in his ab-
sence. In Elias Mallouk Realty Corp., 265 NLRB
1225, 1230–1231 (1982), one of the building super-
intendents found to be an agent of the employer had
arranged a meeting for the employees in his own apart-
ment at which the employer’s president and his attor-
ney appeared, and the topic of discussion was how the
employees could secure representation by a union
other than the incumbent. Employees were brought to
this meeting, outside their normal workplaces, at the
behest of the president by the other superintendent
found to be an agent. Other evidence showed close ties
between these superintendents and the top managers.
Under all the circumstances, the judge found that em-
ployees could reasonably perceive them as speaking
and acting for management, ‘‘particularly on union-re-
lated matters.’’ Id. at 1235. In B-P Custom Building
Products, 251 NLRB 1337, 1338, 1347, 1351 (1980),
the individual found to be an agent for purposes of co-
ercive statements had called all the unit employees to
two meetings on the subject of the union campaign, at
the first of which he was joined by three admitted su-
pervisors in delivering the employer’s antiunion mes-
sage.
In sum, I would find that, given the common law
agency rules that the Board customarily applies in such
cases, the General Counsel has not shown by a prepon-
derance of the evidence that Kathy Facundo was an
agent of the Respondent when she uttered the state-
ments on September 26 that are alleged as unlawful.
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 an abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT unlawfully interrogate our employees
about their knowledge of the Union.
WE WILL NOT threaten our employees with job loss
or plant closure if they select a union to represent
them.
WE WILL NOT, without evidence, blame the Union
for acts of vandalism or bomb threats.
WE WILL NOT implement new work rules prohibiting
our employees from talking at their work stations, pro-
hibiting our employees from engaging in group discus-
sions in the parking lot, and restricting employee ac-
cess to the plant, in order to discourage union organi-
zational efforts among our employees.
WE WILL NOT discharge employees because of their
activity on behalf of the Union.
WE WILL NOT refuse to reinstate or discharge strik-
ing employees upon their unconditional offer to return
to work.
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789CDR MFG.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Nicole Adams, Mary Collier,
Linda Girdler, Sue Hall, Barbara Haynes, Tracey
Haynes, Franka Johnson, Chirsty Randolph, and Carrie
Vanover full reinstatement to their former positions, or
if those positions no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity and other rights and privileges.
WE WILL make the nine employees listed above
whole for any loss of pay and other benefits suffered
by them commencing from the date of their unlawful
discharges with interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful employment actions against the nine em-
ployees listed above, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that the unlawful actions will not be
used against them in any way.
CDR MANUFACTURING
Vyrone Alex Cravanas, Esq., for the General Counsel.
John T. Lovett, Esq. (Brown, Todd & Heyburn), of Louis-
ville, Kentucky, for the Respondent.
Thomas M. Curley, International Representative, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On Octo-
ber 11, 16, and 24 and November 29, 1995, charges and an
amended charge were filed by the International Brotherhood
of Electrical Workers, AFL–CIO (the Union) against CDR
Manufacturing (Respondent).
On December 12, 1995, the National Labor Relations
Board (the Board), by the Acting Regional Director for Re-
gion 9, issued a complaint which alleges that the Respondent
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act).
Respondent filed an answer in which it denied that it vio-
lated the Act in any way.
Trial was held before me in Somerset, Kentucky, on Janu-
ary 24, 25, and 26, 1996.
On the entire record in this case, to include posttrial briefs
filed by the General Counsel and Respondent, and on my ob-
servation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all material times Respondent, a corporation, has been
engaged in the manufacture of electronic computer bonds at
Somerset, Kentucky.
Respondent admits, and I find, that at all material times
Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all material times
the Union has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Overview
The Union’s campaign among Respondent’s employees
was started by employee Christy Randolph with the assist-
ance of her father, Lester Randolph, and his Union, i.e., the
IBEW. Through her father and the Union Christy Randolph
secured a financial statement of Respondent and concluded
with representatives of the Union that Respondent was profit-
able and could pay more to its employees. Lester Randolph
works for another employer in the area and not Respondent.
Randolph very quickly enlisted the support of fellow em-
ployees Mary Collier and Barbara Haynes. They met with a
union representative in mid-September 1995 and started get-
ting union authorization card signed immediately thereafter.
It is alleged in the complaint that four supervisors of Re-
spondent, i.e., President Don Curtis, Vice President Ray Cur-
tis, alleged Supervisor Kathy Facundo, and alleged Super-
visor Sharon Slavey violated Section 8(a)(1) of the Act.
It is also alleged that employee and union activist Barbara
Haynes was fired on October 9, 1995, effective October 13,
1995, because of her support for the Union.
Further, it is alleged that eight employees and Barbara
Haynes engaged in an unfair labor practice strike to protest
Barbara Haynes’ discharge and were unlawfully denied rein-
statement on October 11, 1995, when they made an uncondi-
tional offer to return to work.
Lastly, it is alleged that employee Kristi Petrey, who pick-
eted during the alleged unfair labor practice strike, while on
medical leave, was discriminated in her employment when
she returned to work, because Respondent did not return her
to her old assignment.
I will address the allegations separately but before I do I
note that Union International Representative Tom Curley
credibly testified that by October 11, 1995, the Union had se-
cured 26 union authorization cards for a unit of approxi-
mately 90 employees less than 1 month into the organizing
campaign but since October 11, 1995, has secured only 3 ad-
ditional union authorization cards. According to Curley the
campaign to organize Respondent’s employees is ‘‘stone
dead’’ and he attributes this to the unlawful discharge of
Barbara Haynes and the discharge of the striking employees
following their unconditional offer to return to work.
B. The 8(a)(1) Allegations Involving Alleged
Supervisors Kathy Facundo and Sharon Slavey
Respondent denies that Facundo and Slavey are super-
visors and agents of Respondent within the meaning of the
Act. I note that Facundo and Slavey are both hourly employ-
ees.
Employees wear blue lab coats at work while Facundo and
Slavey wear white lab coats.
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790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
With respect to Facundo employees Christy Randolph,
Barbara Haynes, Mary Collier, Nicole Adams, and Franka
Johnson all testified that Facundo was their supervisor. Fur-
ther, that Facundo scheduled overtime, signed timecards, was
the person to see if you wanted time off, policed the produc-
tion line on which she worked by, for example, moving em-
ployees about and telling them to be quiet if she thought they
were being too noisy. Facundo specifically told both Mary
Collier and Franka Johnson on separate occasions that she
was their supervisor and she used the word supervisor. On
absence reports in evidence (R. Exhs. 5, 9, 10, and 11), Bar-
bara Haynes identified Facundo as her supervisor and the
form was not changed by management to reflect that
Facundo was not Haynes’ supervisor.
Neither Kathy Facundo nor Sharon Slavey testified. I find
that Kathy Facundo is a supervisor and agent of Respondent
because the evidence, among other things, demonstrates that
she responsibly directs the work of employees under her. I
find that the General Counsel has failed to prove, however,
that Sharon Slavey is a supervisor and agent of Respondent.
The only evidence of Slavey’s supervisory status is the fact
that she wears a different color lab coat that the other em-
ployees.
On September 26, 1995, Facundo approached employee
Christy Randolph and asked her what she knew about some-
one starting a union. Facundo went on to tell Randolph that
5 years earlier someone tried to start a union and Don Curtis
threatened to pull the plug on Respondent. Facundo said that
that those responsible for trying to bring in a union could
lose their jobs. When Randolph told Facundo she had signed
a union authorization card Facundo responded ‘‘Christy, I
had plans for both you and Carrie (Vanover).’’ Facundo went
on to say that if the plant closed then they’d all be out of
a job. Respondent, through Facundo, violated Section 8(a)(1)
of the Act when it unlawfully interrogated an employee and
made threats of job loss and plant closure because of em-
ployee support of unionization.
C. The 8(a)(1) Allegations Involving President
Don Curtis
The Union began its organizing campaign among Re-
spondent’s employees in mid-September 1995.
Don Curtis, Respondent’s president, admits he first learned
about the organizing efforts at that time. Indeed on Septem-
ber 27, 1995, Curtis gave a captive audience speech to his
employees in which he referred to the Union as Respondent’s
‘‘greatest threat’’ and urged his employees to reject the
Union.
Thereafter, on October 5, 1995, Respondent received a
bomb threat. There is no evidence in this record as to who
was responsible for the bomb threat but, suffice it to say,
Curtis held a meeting with employees who voted not to go
to work because of the bomb threat. Respondent did not op-
erate on October 5, 1995.
In referring to the bomb threat and other vandalism which
had occurred since the beginning of the Union’s organizing
campaign, Curtis told the employees that the bomb threats
and vandalism occurs when ‘‘outsiders’’ get involved. He
clearly blamed the vandalism and the bomb threat on the
union organizing effort and this is the kind of language that,
needless to say, will interfere with employee free choice on
whether to select a union or not. In the complete absence of
evidence of who did what Curtis blamed it on the Union, i.e.,
Curtis was telling the employees if you don’t want vandalism
and bomb threats (and who would) then get rid of the Union.
Curtis’ statements violate Section 8(a)(1) of the Act. There
was no bomb fortunately.
On October 6, 1995, it is alleged Curtis threatened to close
the plant because of the union activity. I conclude otherwise.
On October 6, 1995, the day after the bomb threat, Curtis
told the employees who were to decide whether to work or
not that if they didn’t work because of bomb threat fears or
any other reason Respondent’s customers would go else-
where for product and Respondent would in time go out of
business. This statement does not violate the Act. Respond-
ent was in full operation on October 6, 1995.
Respondent also issued some new work rules. It claims it
issued these rules in response to the bomb threat, but I find
that these new rules were issued in order to interfere with
and defeat the union organizing efforts. On October 6 and
9, 1995, the employees were told there would henceforth be
no talking at their work stations. Prior to this the work rule,
which Christy Randolph said was not enforced, forbade ‘‘idle
talk’’ at the work stations. (Jt. Exh. 1.) In addition, Respond-
ent implemented a new work rule that prohibited group dis-
cussions among employees in Respondent’s parking lot and
a new work rule that restricted access to the plant, i.e., no
entry more than 10 minutes before the start of the shift and
2 minutes after the start of the shift.
The cumulative effect of these new work rules were that
employees could not exchange thoughts and ideas in the
parking lot before or after work, at work stations while
working and couldn’t enter the plant early and talk with fel-
low workers before they went on the clock. These new rules
were implemented, I find, to interfere with and restrain em-
ployees in deciding whether or not to select the Union to
represent them. It is ludicrous to suggest that these rules
were put in place to prevent employees from planning to sab-
otage production or destroy Respondent or its business. Ac-
cordingly, the implementation of these new work rules was
a violation of Section 8(a)(1) of the Act.
C. Discharge of Barbara Haynes
Barbara Haynes began her employment with Respondent
in August 1995. She and Mary Collier were Christy Ran-
dolph’s first recruits and Barbara Haynes met with a union
representative on September 19, 1995. Haynes talked about
the Union at work and solicited her fellow employees to join
the Union. She credibly testified that Don Curtis observed
her give a union authorization card to employee Steve Smith
on or about September 29, 1995. Curtis denied he saw this.
Smith didn’t testify. I credit Barbara Haynes. In addition, ac-
cording to Barbara Haynes, Supervisor Pam Hall saw Bar-
bara Haynes discussing the Union with other union support-
ers on or about October 2, 1995, and then Hall stood by Ray
Curtis, and they both stared at Haynes. Neither Pam Hall nor
Ray Curtis testified.
Barbara Haynes left work early on August 25, 1995, to go
to the dentist. She also left early on September 18, 1995, to
be at home when a repairman came to the home. And, on
September 22, 1995, she was late returning from work and,
pursuant to Respondent’s attendance policy, was put on at-
tendance probation. Being put on attendance probation meant
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791CDR MFG.
1 Barbara Haynes testified that she broke probation not on October
4, 1995, but on September 27, 1995, when she was late for work
because of a fight she had with her husband because he hadn’t given
her an anniversary gift. This is an event which you would think the
person would not be mistaken about. She claims she was on time
for work on October 4, 1995. I don’t think Barbara Haynes is lying
but I think she is mistaken. Timecards, attendance records, and pay-
roll records reflect that Haynes was late for work on October 4,
1995, and not late for work on September 27, 1995. It is possible,
I suppose, that Haynes was also late for work on September 27,
1995, and a friend punched her in but this seems unlikely. There is
no doubt that she was late on October 4, 1995.
2 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
3 It is alleged that Supervisor Ray Curtis kicked Barbara Haynes
on her right foot. Although Ray Curtis did not testify it is my find-
ing that he may have accidentally hit Haynes’ foot with his. No
words were exchanged. There was no injury. This does not amount
to a violation of the Act.
that the next time, Barbara Haynes missed work or was tardy
without a valid excuse she could be fired.
On October 4, 1995, Barbara Haynes was 12 minutes late
to work.1 She clocked in at 8:12 a.m. and was due at work
by 8 a.m. At this point Barbara Haynes could have been
fired. Thursday, October 5, 1995, was not a workday since
the employees voted not to work because of the bomb threat.
On October 6, 1995, a Friday, Barbara Haynes worked. She
was off for the weekend and when she returned to work on
Monday, October 9, 1995, she was told she was fired for
breaking attendance probation but could finish out the week
if she wanted to. She said she wanted to finish out the week,
i.e., stay on the payroll until Friday, October 13, 1995.
Don Curtis testified that he fired Barbara Haynes for
breaking attendance probation and because he had to enforce
the attendance policy, i.e., if you break probation you will
be fired. No exceptions.
I find, however, applying the Board’s Wright Line2 analy-
sis that Barbara Haynes was not fired for breaking attendance
probation, but because of her support for the Union in viola-
tion of Section 8(a)(1) and (3) of the Act.
I find that Respondent knew of Barbara Haynes’ activity
on behalf of the Union, e.g., Don Curtis saw her give a
union authorization card to Steve Smith, and Curtis’ son,
Ray Curtis, and Supervisor Pam Hall had seen Barbara
Haynes discussing the Union with other union supporters and
in mid-September Barbara Haynes filled out a questionnaire
and turned it in to the front office and in the questionnaire
she wrote that Respondent would benefit if it had a Union.
And, I find Respondent did not want its work force to be or-
ganized. Indeed it called the Union the ‘‘greatest threat’’ to
Respondent. In addition, a number of employees had broke
attendance probation and not been fired and this was shown
by Respondent’s own records. The employees who broke at-
tendance probation and were not fired were Tracey Haynes
(no relation to Barbara Haynes), Sue Hall, Pam Smith, Shar-
on Powers, and Debra Tucker. This is a clear case of dispar-
ate treatment.
In addition I credit Barbara Haynes’ testimony over Don
Curtis’ denial that, after Curtis told Haynes she was fired but
could finish out the week, he told her that his door was open
and she could come by and see him. This was an effort on
Curtis’ part, I firmly believe, to learn more about the union
organizing effort with the prospect that Barbara Haynes’ ter-
mination could be rescinded. I make this finding because
others who were fired for attendance problems were not per-
mitted to finish out the week. Barbara Haynes never went to
see Don Curtis and, of course, her termination was not re-
scinded.
D. Discharge of Striking Employees
At a union meeting on the night of October 9, 1995, the
discharge of Barbara Haynes was discussed. Eventually it
was decided that several employees would demand of man-
agement that Barbara Haynes, whom they thought had been
unjustly fired for union activity, be reinstated or the employ-
ees would go out on an unfair labor practice strike.
The following day, October 10, 1995, three employees de-
manded the reinstatement of Barbara Haynes. Management
refused. And the three employees, Mary Collier, Christy
Randolph, and Barbara Haynes went on strike and picketed
in front of Respondent’s plant carrying signs that said that
Barbara Haynes was fired unjustly and they could be next
and that they were striking to protest Respondent’s unfair
labor practice.3
The next day was October 11, 1995, and the three striking
women were joined on the picket line by fellow strikers
Linda Girdler, Nicole Adams, Sue Hall, Tracey Haynes (no
relation to Barbara Haynes), Franka Johnson, and Carrie
Vanover as well as several union members from other em-
ployers in the area.
After the lunch hour on October 11, 1995, the nine strik-
ing employees decided to end their strike midway through its
second day.
All nine striking employees made an unconditional offer to
return to work. Don Curtis, however, insisted that the strik-
ing employees had to fill out absence reports before they
could go back to work. The striking employees would not fill
out the absence reports and were fired.
It is well settled that strikers, economic as well as unfair
labor practice strikers, retain their status as ‘‘employees’’
under Section 2(3) of the Act. NLRB v. Mackay Radio &
Telegraph Co., 303 U.S. 333, 345 (1938). As employees,
economic strikers are entitled to reinstatement on their un-
conditional offer to return to work, unless the employer can
show, as an affirmative defense, that the strikers have been
permanently replaced or some other ‘‘legitimate and substan-
tial business justification.’’ NLRB v. Fleetwood Trailer Co.,
389 U.S. 375, 378–379 (1967). Absent such a showing, a re-
fusal to reinstate strikers constitutes an unfair labor practice,
even in the absence of bad faith or antiunion motive. NLRB
v. Fleetwood Trailer Co., supra.
Consistent with the above legal principles, ‘‘[i]t is well
settled, that, absent legitimate and substantial business jus-
tification, an employer may not attach conditions to accept-
ing an unconditional offer to work on behalf of economic
strikers.’’ Blue & White Cabs, 291 NLRB 1047, 1050
(1988).
The Board has held that to require striking employees who
have made an unconditional offer to return to work to submit
to employment interviews or fill out job applications is viola-
tive of the Act. See Sunol Valley Golf Club, 310 NLRB 357
(1993).
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792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
What legitimate and substantial business justification
would permit Respondent to condition acceptance of the un-
conditional offer to return to work in this case. There aren’t
any. The employees who went on strike were neither tempo-
rarily nor permanently replaced.
Only nine employees went on strike and made the uncon-
ditional offer to return to work. The strike lasted only 1-1/2
days for three of the strikers and 1/2 day for six of the strik-
ers and Respondent was well aware of the identify of the
strikers and precisely who was making unconditional offers
to return to work. The employees were not absent in the or-
dinary sense of that word. They were engaged in protected
concerted activity. Just like I wasn’t present at Respondent’s
facility on October 10 or 11, 1995, but I wasn’t absent.
When the employees voted not to work on October 5,
1995, because of the bomb threat they were not required to
fill out an absence report.
The nine striking employees could not be disciplined for
participating in the strike and yet the absence report and Re-
spondent’s attendance policy have discipline written all over
it.
Joint Exhibit 1, in evidence, is Respondent’s employment
policy and, in the area of attendance, provides, in pertinent
part, as follows:
7. You are required to complete an Attendance form
before returning to work after being tardy or absent.
This completed form must be turned into the office. It
is your responsibility to get this form to the office, do
not cause someone to have to ask you for it.
8. 480 minutes of unexcused absence per month is
the basis of the system. Any time missed between 3
and 225 minutes before lunch will be counted as 240
minutes (1/2 Day). Any time missed between 3 and 255
minutes after lunch will be counted as 240 minutes (1/2
Day). A full day off is counted as 480 minutes. This
system accommodates the difference of time worked in
the morning as opposed to afternoon because of our
lunch time.
A. An absence is excused ONLY for the following
reasons:
1. Appointment with a doctor (for yourself only).
Taking someone to the doctor is not excused. Excuse
from doctor showing patients name must be submitted
with absence report upon return to work. Excuse is sub-
ject to verification. CDR reserves the right to evaluate
repeated absences with doctors’ excuses.
2. Hospitalization of immediate family (must have
statement from doctor or hospital).
3. Death in family (must have statement).
4. Jury Duty (must have statement).
B. An unexcused absence is an absence for any rea-
son other than those listed in A.
C. Should you exceed 480 minutes of unexcused ab-
senteeism in one calendar month, the following action
will be taken:
1. The first time 480 minutes of unexcused absence
occurs, a written warning will be issued.
2. If within a 3 month period, there is a second time
that 480 minutes of unexcused absence is exceeded, a
statement of written two month probation will be
issued.
3. Once on probation, if there is any unexcused ab-
sence a dismissal statement will be issued. At this time
employment is terminated.
Although the policy talks about an ‘‘Attendance form’’ the
form itself, many of which are in evidence, is entitled ‘‘Ab-
sence Report.’’
Suffice it to say the language of the policy would suggest
that if the employees were not at work, because they were
engaged in the protected concerted activity of being on strike
that this would be an unexcused absence. (See sec. 8A and
B from Respondent’s attendance policy quoted above.) In-
deed Carol Haynes (no relation to either Barbara Haynes or
Tracey Haynes), who works in Respondent’s front office as
assistant accounting manager and is referred to in Respond-
ent’s brief as a supervisor, was a witness called by Respond-
ent, and she testified that being on strike, in her opinion,
would be an unexcused absence under Respondent’s attend-
ance policy and would subject the striker to discipline.
Accordingly, it was an unlawful condition to Respondent’s
acceptance of the striking employees unconditional offer to
return to work to require them to fill out absence reports and
unlawful for Respondent to fire the returning employees for
refusing to fill out the absence reports. The termination of
the nine striking employees was, therefore, a violation of
Section 8(a)(1) and (3) of the Act. Considering the facts of
this case it is irrelevant whether the employees are consid-
ered unfair labor practice strikers or economic strikers.
E. Reassignment of Employee Kristi Petrey
Kristi Petrey was on the picket line on October 11, 1995.
She was not asked by Respondent to sign an absence report
because she was already on medical leave. When she re-
turned to work a few days later she was not immediately re-
turned to her old job but spent 2 weeks doing other jobs be-
fore returning to her former assignment. There is no evidence
that Petrey was required to perform more onerous work dur-
ing this 2-week period and since she received the same pay
and went back to her old job within 2 weeks I do not find
any violation of the Act.
REMEDY
The remedy should include the issuance of a cease-and-de-
sist order, the posting of a notice, and the requirement that
Respondent reinstate Barbara Haynes and the striking em-
ployees who made an unconditional offer to return to work
along with the appropriate make whole provision.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when it
unlawfully interrogated employees about their knowledge of
the union.
4. Respondent violated Section 8(a)(1) of the Act when it
threatened its employees with job loss and plant closure if
the employees selected a union to represent them.
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793CDR MFG.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
5 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
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.’’
5. Respondent violated Section 8(a)(1) of the Act when,
without evidence, it blamed the Union for acts of vandalism
and a bomb threat during the union organizing campaign.
6. Respondent violated Section 8(a)(1) of the Act when it
implemented work rules prohibiting its employees from talk-
ing at their work stations, prohibiting its employees from en-
gaging in group discussions in the parking lot, and when it
restricted access to the plant in order to discourage union or-
ganizational efforts among its employees.
7. Respondent violated Section 8(a)(1) and (3) of the Act
when it discharged Barbara Haynes because of her activity
on behalf of the Union.
8. Respondent violated Section 8(a)(1) and (3) of the Act
when it failed and refused to reinstate and then discharged
striking employees Nicole Adams, Mary Collier, Linda Gir-
dler, Sue Hall, Barbara Haynes, Tracey Haynes, Franka
Johnson, Christy Randolph, and Carrie Vanover on their Oc-
tober 11, 1995 unconditional offer to return to work.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10. Respondent did not otherwise violate the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, CDR Manufacturing, Somerset, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully interrogating employees about their knowl-
edge of the Union.
(b) Threatening employees with job loss and plant closure
if they select a union to represent them.
(c) Blaming the Union, without evidence, for bomb threats
and acts of vandalism.
(d) Implementing new work rules to discourage union or-
ganizational efforts among its employees.
(e) Discharging employees because of their union activity.
(f) Failing to reinstate without justification striking em-
ployees on their unconditional offer to return to work.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the new work rules designed to discourage
union organizing efforts among its employees.
(b) Offer Nicole Adams, Mary Collier, Linda Girdler, Sue
Hall, Barbara Haynes, Tracey Haynes, Franka Johnson,
Christy Randolph, and Carrie Vanover full reinstatement to
their former positions or, if those positions no longer exist
to substantially equivalent positions, without prejudice to
their seniority and other rights and privileges.
(c) Make Nicole Adams, Mary Collier, Linda Girdler, Sue
Hall, Barbara Haynes, Tracey Haynes, Franka Johnson,
Christy Randolph, and Carrie Vanover whole for any loss of
pay and other benefits suffered by them commencing on Oc-
tober 11, 1995. Backpay to be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987) (see generally Isis Plumbing Co., 138 NLRB
716 (1962)).
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in Somerset, Kentucky, copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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