Certainteed Corp.

National Labor Relations Board - Board Decisions

Feb 9, 1987

282 N.L.R.B. 1101 (N.L.R.B. 1987)

CERTAINTEED CORP. 1101
Certainteed Corporation and Glass, Pottery, Plastics
and Allied Workers Union, AFL-CIO CLC
and Glass, Pottery, Plastics and Allied Workers
International Union and Local 260 . Cases 10-
CA-19298, 10-CA-20558, 10-CA-20832, 10-
CA-20903, and 10-CA-20960
9 February 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 22 January 1986 Administrative Law Judge
William N. Cates issued the attached decision. The
Charging Party filed exceptions and a supporting
brief, and the Respondent filed a brief in response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended Order
as modified.
ORDER
The National- Labor Relations Board adopts the
recommended Order of the administrative law-
judge as modified below and orders that the Re-
spondent, Certainteed Corporation, Athens, Geor-
gia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
Insert the following as paragraph 1(e).
"(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I
heard this case in 5 days of trial proceedings held at
Athens, Georgia, in the period 29-31 July, 1 August, and
3 September 1985.1 The cases arose when Glass, Pottery,
Plastics and Allied Workers International Union and
Local 260 (Union) filed unfair-labor practice charges
against Certainteed Corporation (Respondent, Employer,
or` Company) on various dates commencing 1 June
1983.2 Acting for the Board's General Counsel, the Re-
gional Director for Region 10 investigated the charges
and issued a fifth amended consolidated complaint (com-
plaint) on 26 July; the complaint was further amended at
trial.3 Respondent answered, admitting many back-
ground and jurisdictional contentions made in the com-
plaint, but denying all claimed wrongdoings.
The General Counsel makes extensive claims in the
complaint. It is claimed that Respondent as early as 6
April 1983 engaged in various conduct prohibited by
Section 8(a)(1) of the Act. The General Counsel also
claims that in September 1984 Respondent denied the re-
quest of employee Daniel L, Hollifield to be represented
by the Union at an interview which Hollifield had rea-
sonable cause to believe would result in disciplinary
action against him. The General Counsel contends Re-
spondent conducted the interview with Hollifield not-
withstanding the fact it denied his request for representa-
tion.
The 8(a)(3) employment discrimination counts derive
from Respondent's discharge of employees Charlene
Smith and Thomas Gordon on 10 April as a result of
their activities on the picket line at the Company. Addi-
tional 8(a)(3) counts relate to Respondent's decision on 9
March to issue a verbal warning to and on 11 March dis-
charge its employee Donnie ' R. Lyles. Further 8(a)(3)
counts involve Respondent's decision on 8 ]February to
issue a permanent final' warning to employee Melvin
Mason and to dock the pay ` of employee Jimmy L.
Gaines. The final 8(a)(3) count relates to Respondent's 15
April decision to transfer employee Williams A. ]Lever-
1 The Charging Party and the General Counsel have excepted to some
of the judge's credibility findings 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. T3Standard 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.
In sec. III,A,6,b, par. 2, sentence 3, of his decision, the judge inadvert-
ently refers to Cummings instead of Colquitt. Also, the judge failed to
include standard injunctive language in the recommended Order We cor-
rect these errors.
z The Respondent has filed no exceptions to any of the violations the
judge found.
Josephine S. Miller, Esq., for the General Counsel.
Homer L. Deakins Jr.,, Esq. and Margaret H. Campbell,
Esq. (Ogletree, Deakins, Nash, Smoak & Steward), of
Atlanta, Georgia, for the Respondent.
Barry M. Bennett, Esq. (Tomar, Parks, Seliger, Simonoff &
Adourian), of Haddonfield, New Jersey, for the Charg-
ing Party.
1 All dates hereinafter are 1985 unless otherwise indicated.
2 The charge in Case 10-CA-19298 was filed on 1 June and amended
on 16 June 1983. The charge in Case 10-CA-20558 was filed on 30 Octo-
ber 1984 The charge in Case 10-CA-20832 was filed on 27 March and
amended on 5 April and 6 and 8 May. The charge in Case 10-CA-20903
was filed on 17 April and amended on 6 May. The charge in Case 10-
CA-20960 was filed on 14 May.
3 A fourth amended consolidated , complaint was issued against Re-
spondent in Cases l0-CA-16414, 10-CA-17115, 10-CA-19010, 10-CA-
19298, 10-CA-19836, 10-CA-20235, 10-CA-20558, 10-CA-20713, 10-
CA-208,32, 10-CA-20903, and 10-CA-20960 on 1 July. Thereafter, on 17
July, the Regional Director issued an Order granting the Union's request
for permission to withdraw the charges in Cases 10-CA- 16414, 10-CA-
17115, 10-CA-19010, 10-CA-19836, 10-CA-20235, and 10-CA-20713
based on the fact the parties had entered into a settlement agreement of
the issues contained in those charges. In his Order, the Regional Director
noted that the Union's request covered the allegations contained in pars.
35 through 50 and 56 of the fourth amended consolidated complaint. The
Regional Director specifically indicated in the Order that although not
specifically mentioned in the Union's withdrawal request, the withdrawal
of par. 55 was necessitated by approval of the overall withdrawal re-
quest
282 NLRB No. 155
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ington from the position of preventive maintenance me-
chanic to that of fiberizing mechanic.
The 8(a)(5) count relates to Respondent's 10 April re-
fusal on request to furnish the Union with a copy of Re-
spondent's reports on the alleged strike misconduct of
employees Thomas Gordon and Charlene Smith.
All parties were given full opportunity to participate
and introduce relevant evidence, to examine and cross-
examine witnesses , to argue orally, and to file briefs. All
briefs filed at various intervals during and after the trial
have been carefully considered.4
On the entire record in this case and my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
pressions or interpretations of what was said or done,
rather than attempting to give a verbatim account of
what they heard or saw. Further, I am not unmindful
that even in the case of persons testifying about their
own remarks or actions, they may well tend to express
what they said or intended to say in clearer or more ex-
plicit language than they actually used in their discus-
sions or conversations. As to any witness having testified
in contradiction of the findings, their testimony has been
discredited either as having been in conflict with the tes-
timony of credible witnesses, or because it was in and of
itself unworthy of belief. All testimony has been re-
viewed and carefully weighed in light of the entire
record. As specific credibility conflicts arise, I shall state
more specifically my reasons for crediting or discrediting
any particular witness on any particular portion of his or
her testimony.
Respondent is a Maryland corporation which main-
tains an office and place of business located at Athens,
Georgia, where it is engaged in the manufacture of insu-
lation. During the past calendar year, a representative
period, Respondent in the course and conduct of its busi-
ness operations sold and shipped from its Athens, Geor-
gia facility finished products valued in excess of $50,000
directly to customers located outside the State of Geor-
gia. The parties admit, and I find, that Respondent is,
and has been at all times material, an employer engaged
in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II.LABOR ORGANIZATION
The parties admit, and I find , the Union is, and has at
all times material been , a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In attempting to establish the claims set forth in the
complaint, the General Counsel relied on the testimony
of a number of employee witnesses. The testimony and
responses thereto are set forth below essentially in the
order established by the complaint.5
Inasmuch as credibility is a material issue in the instant
case, I deem it appropriate to make some preliminary
comments thereon. In deciding which of the conflicting
versions of events is more credible, I have given consid-
erable weight to the demeanor of the witnesses while
they were on the stand. I have considered each wit-
nesses' testimony in conjunction with established or ad-
mitted facts, inherent probabilities, and reasonable infer-
ences which may be drawn from the record as a whole.
With respect to the testimony, I have borne in mind the
tendency of witnesses in general to testify about their im-
4 The General Counsel's 25 November and the Union's 12 December
motions to strike Respondent's reply brief are denied inasmuch as all par-
ties were specifically authorized by me to file such briefs. See Fruehauf
Corp, 274 NLRB 403 (1985)
5 Certain allegations in the complaint relate to a strike which began at
the Company on Saturday evening, 6 April, and ended on Wednesday, 10
April Subsequent to the strike, the parties (in July) executed a collective-
bargaining agreement
A. The Alleged 8(a)(1) Violations
1. Alleged prohibition of concerted activities
It is alleged at paragraph 11 of the complaint that Re-
spondent, acting through Personnel Manager Michael G.
Hale, about April 1983, prohibited employees from en-
gaging in concerted activities with other employees for
the purposes of collective bargaining and other mutual
aid and protection.
Robert Reed, an hourly employee of Respondent, was
given a disciplinary warning in early April 1983: Reed's
immediate supervisor, Danny Atkins, explained to Reed
at the time he was given the discipline that he was enti-
tled to a union representative if he wanted one. Reed de-
clined Atkins' offer. Apparently Reed thereafter talked
to Union Shop Steward Tony Morris about the discipline
he had been given. Local Union President Jimmy L.
Gaines testified Morris called him and asked that he
come to the plant because Reed wanted union assistance.
Gaines testified he thought Reed had been given his dis-
ciplinary warning at approximately 5:30 p.m. on the date
in question . Gaines said he was notified of Reed 's situa-
tion at approximately 6:30 to 7 p.m. Shortly after 7 p.m.,
Gaines went to the plant where he spoke with Supervi-
sor Atkins. Atkins told Gaines that Reed had not asked
for a representative even though he had explained to him
that he was entitled to one.
Gaines testified Personnel Manager Hale called him to
his office the next day and asked him about his being at
the plant the night before during his scheduled off time.
Gaines testified he told Hale he had been called in by an-
other hourly employee regarding discipline that had been
given to yet another hourly employee in the bonded mat
plant. Gaines, on direct examination, stated Hale told
him employees were not to be at the plant during their
scheduled off time unless they were called to come in.
According to Gaines, Hale told him he would be asked
to leave the plant if he came there during scheduled off
time unless he had been called in or was there to pick up
his payroll check. Gaines testified his conversation with
Hale lasted approximately 20 to 30 minutes and ended
with Hale telling him if he was unhappy with the Com-
pany why did he not gust quit.
CERTAINTEED CORP. 1103
Hale testified- he had been away from Athens, Georgia,
in early April and' when he returned -he was told Gaines
had been at the plant to visit with an employee over 3
hours after the event that concerned the employee had
taken place. Hale stated he called Gaines, along with
Gaines' supervisor, to his office-the next days and asked
Gaines why he had been at the plant the night before.
Hale testified he told Gaines. he did not want him
coming into the plant 3 to 3-1/2 hours after something
had taken place. Hale told Gaines he could come into
the plant if he needed to see a supervisor, to pick up his
payroll check, or even to speak with employees about
complaints if he did so within a reasonable time of the
complaints. Hale stated the Company in January 1983
issued an employee handbook that contained a provision
which stated employees were not to come on company
property during nonscheduled time except 20 minutes
before or after their assigned work shift. Hale testified
employees were required to follow that written policy,
but stated he did not have any direct knowledge about
whether it hadalways been adhered, to.
There does not appear to be any controlling credibility
conflict with respect to this particular allegation of the
complaint. I do note that Gaines, at one point on cross-
examination, testified Hale did not mention anything
about any company policy regarding employees coming
on the property during nonscheduled time. However,
when Gaines was confronted with his pretrial Board affi-
davit, he acknowledged there was a discussion of the
policy during his meeting with Hale. Gaines' account of
the timing of the incident, involving employee Reed
places him at the plant approximately 2 hours after the
event. Hale, on the other hand, contends it was his un-
derstanding that Gaines was at the plant approximately 3
to 3-1/2 hours `after the event. Although I am persuaded
Hale's account of the events surrounding the Reed inci-
dent is more accurate than Gaines, I fmd it unnecessary
in resolving this issue to make a finding about the time
Gaines arrived; at the plant.
I am persuaded the General Counsel had failed to es-
tablish that Respondent prohibited employees from en-
gaging in concerted protected activities. Accordingly, I
recommend that the complaint allegation related thereto
be dismissed in its entirety. The Company's prohibition
against employees being on its premises during nonsched-
uled time was clearly disseminated to all employees inas-
much as it was set forth in the employees' handbook.
The prohibition applied to all employees for any purpose
with certain specified exceptions. None of the exceptions
was for the purpose of, unlawfully' discouraging or pro-
hibiting concerted activities. In fact, one of the excep-
tions which was outlined to Gaines was that he (or for
that matter any other employee representative) could
come on company property during scheduled off time to
discuss employee complaints so long as he did so within
a reasonable time of the complaints. Gaines' testimony
that he observed employees at the plant dressed in a
manner that would indicate to him the employees were
not working does not establish that the rule was en-
forced in a discriminatory manner. There is no showing
6 Hale placed the date as either 5 or 6 April 1983.
on this record that the employees Gaines saw at the
plant were there for any reason other than pursuant to
the exceptions allowed by the Company as set forth in
the employee handbook.
2. Alleged threat of reprisal
It is alleged at paragraph 12 of the complaint that Re-
spondent, acting through Cold End Maintenance Super-
visor David Burbach, about 22 October 1984 threatened
employees with reprisals, in regard to their union activi-
ty, by telling an employee that he was too outspoken and
critical of Respondent.
Local Union Vice President and negotiating committee
member Bob Thomas testified he spoke with Supervisor
Burbach in Burbach's office alone sometime during the
latter part of November 1984. Thomas said Burbach told
him their conversation had nothing to do with the
Union. Thomas asserts Burbach told him he was "too
outspoken" and "too, abrasive", for the Company and
questioned him about some things he had supposedly
done. Thomas stated Burbach told him someone had re-
ported that he had been laying out of work and was de-
veloping a pattern of doing so. Thomas asked Burbach to
check his records. According to Thomas, Burbach said
he did not see anything wrong with his file.? Thomas
said Burbach asked him if he was going to continue to be
outspoken against the Company. Thomas told Burbach
he would continue to speak out if he saw a need to do
so. Thomas also told Burbach he felt their meeting had
really been brought about because of his affiliation with
the' Union. Thomas stated he then asked Burbach if they
could talk again after Burbach had made a decision on
whether their talk was a disciplinary matter or just a
talk. The next day Thomas asked Burbach about their
conversation and ' he asserts Burbach told him it was
more or less a man-to-man talk and it would not be made
a matter of record.
Supervisor Burbach testified he spoke with Thomas re-
garding Thomas' job performance in late October or
early November 1984. Burbach stated Thomas had been
working for him, approximately 20 to 25 days at that
time. Burbach gave Thomas a list of his job performance
deficiencies and went over each item on the list with
him. Burbach said he raised several matters with
Thomas, namely, that he had not filled out his spindle
cards correctly; he had not filled a silicon tank properly;
and he had been tardy on a few occasions. Burbach
stated he told Thomas he was not giving him any disci-
pline, that they were just - merely having a discussion.
Burbach testified Thomas asked him the next day if their
discussion amounted to a disciplinary warning. Burbach
told Thomas it did not. Burbach asserts he did not say
anything to Thomas about his being too outspoken for
the Company nor did he accuse Thomas of making accu-
sations against the Company.
7 After twice having his memory refreshed by his pretrial Board affida-
vit, Thomas testified Burbach said there was nothing in his personnel file
that he could go on.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Burbach's account of his late 1984 meeting
with Thomas," and, accordingly, I recommend that para-
graph 12 of the complaint be dismissed in its entirety.
Nothing that was said in the credited account of the
Burbach/Thomas conversation violated the Act.
3. Alleged interrogation
It is alleged at paragraphs 13 and 14 of the complaint
that Respondent, acting through various supervisors
on dates from about 15 August 1984 until about 29
March, interrogated employees concerning their union
membership, activities, and desires and the union mem-
bership, activities, and desires of other employees and
concerning their concerted activities with other employ-
ees for the purposes of collective bargaining and other
mutual aid and protection.
a. Warehouse Supervisor Steven Wilkins
Nine-year employee Kenneth G. Ledford testified
Warehouse Supervisor Wilkins approached him in Sep-
tember 1984 while he was alone on the floor of the
warehouse and told him that Ledford's department head
(Allen Cox)9 thought Ledford had joined the Union.
Ledford told-Wilkins he had not yet joined the Union
but he had talked to his immediate supervisor, Sandy
Scott, about it. According to Ledford, Wilkins respond-
ed, "Well, I thought you was smarter than that as far as
joining the Union." Ledford then told Wilkins, "I've just
made up my mind to join the Union."
Warehouse Supervisor Wilkins testified he knew but
did not supervise Ledford. Wilkins stated Ledford, in
coming from his supervisor's office in September 1984,
told him he had been talking with his supervisor and felt
like he was going to join the Union. According to Wil-
kins, Ledford said he had three brothers who were in the
Union and they were trying to get him to join. Wilkins
told Ledford he would have to make up his own mind
about that.
It is clear that Wilkins and Ledford, who were friends,
had a conversation about Ledford's union membership in
September 1984. I found Ledford for the most part to be
a believable witness and, accordingly, I credit that por-
tion of his testimony outlined above. Wilkins' comment
to Ledford was clearly one that called for a response on
8 I am persuaded Thomas' testimony regarding his two conversations
with Burbach is unreliable for a number of reasons He had to continual-
ly, even on direct examination, have his memory "refreshed" by his pre-
trial Board affidavit He seemed reluctant in his direct testimony to reaf-
firm certain facts contained in his affidavit Thomas impressed me as a
witness that would not hesitate to withhold facts if he perceived it might
be harmful to his overall testimony to reveal them For example, Thomas
first said Burbach did not mention that he had left a silicon tank empty,
however, when confronted with his pretrial Board affidavit, he acknowl-
edged it reflected Burbach had raised that fact with him It was at that
point Thomas acknowledged Burbach had given him a list of things but
contended he did not discuss the list with him, Thomas stated Burbach
had not given him any specific examples of his being late fc work; how-
ever, when again confronted with his pretrial Board affidavit, he ac-
knowledged they had discussed a specific example of when he had been
tardy for work in October 1984 Also on cross-examination , Thomas ac-
knowledged Burbach discussed spinner (spindle) records with him For
all of the above reasons, as well as his general appearance while testify-
ing, I do not credit the testimony of Thomas
8 Referred to at some places in the transcript as Allen Koch
Ledford's part. There was no valid purpose for the in-
quiry communicated to Ledford. The inquiry took place
on the floor of the warehouse by the warehouse supervi-
sor at a time when Ledford was working. Although Led-
ford had discussed joining the Union with his immediate
supervisor, there is nothing to indicate or even suggest
that he desired to discuss the Union with Wilkins. Con-
sidering all the circumstances, I find Wilkins' comments
to Ledford amounted to interrogation that reasonably
tended to restrain , coerce, or interfere with Ledford's
rights guaranteed by the Act.
Warehouse employee Dennis Carter testified Wilkins
asked him in August 1984 if he was stupid enough to
join the Union. Carter said he told Wilkins he had joined
the Union because he believed in what the Union was
doing. Wilkins told Carter the Union would not do him
any good and that he was fighting alosing battle because
the Company would not give' the employees, anything.
Carter testified Wilkins asked what the employees
wanted. Carter told Wilkins they wanted better benefits
and working conditions. According to Carter, Wilkins
told him the Union was just for lazy people. Carter testi-
fied Wilkins spoke with him about the Union on seven or
eight occasions between August 1984 and May.' o
Wilkins testified he supervised Carter but stated he
had no discussion with him in August 1984 concerning
his union membership . Wilkins denied ever telling Carter
that he was stupid for being in the Union or that he was
fighting a losing battle by being for the Union.
I am persuaded Carter had the above-outlined conver-
sation with Wilkins. Wilkins' questioning Carter about
his union sympathies was not an isolated, incident nor
was it just a comment in passing. Wilkins continuously
questioned Carter about the Union for approximately 9
months. Wilkins not only asked Carter about his union
activities, but he also asked him what other employees
wanted and berated Carter for his support of the'Union.
I conclude from the totality of the circumstances that
Wilkins' statements to Carter amounted to unlawful in-
terrogation inasmuch as the questioning tended to re-
strain, coerce, or interfere with Carter' s rights guaran-
teed by the Act.
Warehouse employee Wendel Hanley testified he and
fellow employees Eugene Whitehead and Kevin King
were talking about union contract negotiations in Sep-
tember 1984 when Warehouse Supervisor Wilkins asked
them, "Why would you want to buy something that you
could get for free?" Hanley testified Wilkins then said it
did not make any difference to him whether employees
joined the Union or not, that he would treat them all the
same.
Wilkins acknowledged talking with Hanley in Septem-
ber 1984, and telling him it did not make any difference
to him whether the employees joined the Union or not,
that each employee had to make up his or her own mind
on that matter.
Given the subject matter being discussed, it is very
probable, and I find, that Wilkins asked the rhetorical
io Portions of Carter's testimony that relate to other conversations he
had with Wilkins are set forth elsewhere in this decision
CERTAINTEED CORP.
question that Hanley attributes to him. The issue is
whether the question constituted coercive interrogation.
I am persuaded it did not. Whether the employees ques-
tioned were active union supporters is not reflected in
the record; however, they were openly talking about the
Union and about contract negotiations. Furthermore, al-
though an answer to the question asked might reveal the
employees' union sympathies, I find it was not coercive.
Wilkins asked his rhetorical question in the course of a
discussion about the Union. His question was quickly fol-
lowed with a comment that employees' membership or
lack thereof in the Union made no difference to him, that
he would treat all employees equally. Under these,' cir-
cumstances, neither the words used nor the context in
which they were said suggests any element of coercion
and, as such, I recommend that the portion of paragraph
13 of the complaint which relates to this particular inci-
dent of alleged unlawful interrogation be dismissed.
b. Cold End Maintenance Supervisor Otho Barclay
Buildings and grounds employee Donnie Lyles testi-
fied he commenced to wear a union button at the plant
in December 1984. Lyles stated he had three union-relat-
ed conversations with Cold End Maintenance Supervisor
Barclay starting in December 1984.11 Lyles testified no
one else was ever present when Barclay talked with him
about the Union. Lyles said Barclay asked him if the em-
ployees were going to go on strike. Lyles asserts he told
Barclay they were and he stated Barclay asked what
they were going to strike for. Lyles told Barclay he was'
going to strike for more money, better benefits, and job
security.
Lyles testified Barclay asked him, after the Company
had implemented its pre-impasse wage offer, how he
liked his pay raise. Lyles asserts he told Barclay he did
not like it and that the employees would-strike for more
money. Lyles testified Barclay said, "You ain't going to
get no more money,' the union can't do nothing for you."
Lyles stated Barclay also told him he ' might as well go
ahead and get out of the Union because he was not
going to get anything more.
Barclay testified he never had any conversation with
Lyles about whether Lyles or anyone else would go on
strike. Barclay testified the only union-related conversa-
tion he ever had with Lyles took place on an occasion
when Lyles was reporting for work. Barclay said Lyles
told him on that occasion that he had joined the Union
and did not know if he had done the right thing. Barclay
stated he simply told Lyles he was a grown man and did
not give him any advice on the Union.
Barclay impressed me as an unreservedly honest wit-
ness. He testified in a forthright and candid manner and I
fully credit his testimony. Lyles on the other hand was
too uncertain in his'testimony, particularly on the sub-
stance of conversations and the dates on which they al-
legedly took place, for any reliance to be placed thereon.
Lyles not only displayed a poor memory, but at points in
his testimony was unable to respond at all to certain
questions.
Barclay did not supervise Lyles
1105
Therefore, based on the credited testimony outlined
above, I recommend that any portion of paragraph 13 of
the complaint that is based on the testimony of Lyles be
dismissed.' 2
c. Warehouse Supervisor Roy L. "Buck" Thomas
Warehouse employee Lamar Strickland testified he
and fellow employee Kenneth G. Ledford had a' conver-
sation with Warehouse Supervisor Thomas about 2
weeks before the employees went on strike. The conver-
sation took place in the skid repair area at the plant.
Strickland said Thomas asked him for some union but-
tons to give to his children. Strickland stated Thomas
told ,him he thought he. would have some extra buttons
because employees were getting out of the Union. Strick-
land testified Thomas told him that all one had to do to
get out of the Union was to send a registered letter to
the Union. Strickland said he was wearing a union
button at the time Thomas asked him for union but-
tons.13 Strickland testified Ledford did not say anything
during the conversation and that Thomas, walked away
after he asked for the union buttons.
Ledford testified on direct examination that Thomas
asked he and Strickland for buttons to give to his chil-
dren and then said something about employees g thng
out of the Union. Ledford stated Thomas told him and
Strickland that if they wanted out of the Union, all they
had to do was send a registered letter to the president of
the Local with a copy to the International stating they
wanted out of the Union. On cross-examination, Ledford
moved away from his direct testimony and stated he
would not say that Thomas made any statements about
employees getting out of the Union, that he only made
reference to extra buttons for his children. On further
cross-examination, Ledford testified - specifically that
Thomas did not make' any statement to him about em-
ployees getting out of the Union.
Thomas testified he had a conversation with employee
Eddie Thomas in the presence of Strickland and Ledford
about union buttons. Thomas placed the conversation as
having taken place approximately 3 weeks after employ-
ees started wearing union buttons at the plant.14 Thomas
said he asked Eddie Thomas if he could get a couple of
the union buttons for his children. Thomas stated he told
Eddie Thomas that he had two boys who collected hats,
buttons, and things, of that nature. Eddie Thomas told
Supervisor Thomas he thought he could get him a
couple of buttons and thereafter did so. Thomas testified
nothing, was said in the conversation about employees
18 Inasmuch as I have fully credited Barclay's account of his only con-
versation with Lyles that involved the Union, I recommend that those
portions of pars. 16 and 18 of the complaint that allege Barclay threat-
ened employees the Company,would not negotiate with the Union and
solicited employees to withdraw from the Union be dismissed. I do so
because the General Counsel relied on the testimony of Lyles to establish
those particular allegations
13 Strickland stated on cross-examination that he did not remember if
Thomas asked for one or more than one union button. Strickland said
Thomas was not laughing at the time but added he took Thomas' com-
ments to be making fun of the Union.
14 Thomas stated neither Eddie Thomas, Strickland, nor Ledford
worked under his supervision.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
getting out of the Union or how they might go about
getting out of the Union. Thomas further added that he
never had any conversation at any time with either
Strickland or Ledford on how to get out of the Union.
Strickland and Ledford did not give corroborative tes-
timony regarding what Thomas said to them. Strickland
claims Thomas made mention that a number of employ-
ees were getting out of the Union and,explained how
they could do so. Ledford, on the other hand, on cross-
examination contradicted his own direct testimony and
stated Thomas did not make any statements about em-
ployees getting out of the Union. Strickland's and Led-
ford's ambiguous and at times contradictory testimony
regarding their conversation with Thomas persuades me
that it should not be relied on as being accurate. Accord-
ingly, 'I credit Warehouse Supervisor Thomas' version of
his request for union buttons. In so doing, I fmd Thomas
did not tell the three employees in question how they
could go about getting out of the Union.' 5 I do not find
Thomas' request for union buttons for his two sons to
constitute coercive conduct. Strickland and Eddie
Thomas were wearing union buttons at the time Thomas
spoke with them and all three of the employees ' were
known union supporters. Supervisor Thomas did not ask
for any information about any employee's union sympa-
thies. He simply asked for two union buttons. Thomas
explained to the employees in question the reason for his
request, which was unrelated to any protected right of
the employees. In view of the foregoing, I recommend
that the allegation in paragraph 13 of the complaint that
relates-to Supervisor Thomas be dismissed.
d. Assistant Plant Manager Jim Kline
Employee Bob Cummings testified Assistant Plant
Manager Kline talked to him alone about the Union ap-
proximately 1 week before the employees went on strike.
Cummings said he was wearing a union button at the
time. Cummings told Kline that he looked worried.
Kline responded' he was worried about the union button
Cummings was wearing on his shirt. Cummings ex-
plained to Kline he was wearing the union button be-
cause Plant Manager Harper had told the employees in
the maintenance department they had no choice but to
be for the Union and that it would be the employees'
best bet to support the Union. Cummings also told Kline
he was wearing the union button because he wanted a
"say-so" in the Union. Cummings testified the conversa,
tion then turned to the subject of a strike at the Compa-
ny. Cummings could not recall how the conversation
turned to the subject of a strike, but stated the possibility
of a strike had been very much on his mind and he was
sure he had been talking to other employees about that
possibility. Kline told Cummings that if the employees
went on strike the Company was, not obligated to, but
would, send letters to them to'return to work. Cummings
15 At par. 18 of the complaint, it is alleged that Warehouse Supervisor
Thomas solicited employees to withdraw from membership in the Union.
The General Counsel contends that allegation is in part established by the
testimony of Ledford and Strickland set forth above Inasmuch as the
credited facts establish no such solicitation to withdraw from the Union
was made, I recommend that any portion of par 18 of the complaint that
is based on the testimony of Ledford and Strickland be dismissed
testified Kline also said that if 25 percent of the employ-
ees went out, none of them would come back because
the'plant could run without them, but if more than 25
percent of the employees went out that would be an-
other matter. Cummings testified Kline said the Compa-
ny would not even bother to call back the 25 percent if
that was all that went out and if certain employees went
on strike the Company hoped they would stay out.
Cummings testified Assistant Plant Manager Kline said
he did not think negotiations were going in the Union's
favor and it was his opinion the Company would not
give any more on the contract because the employees
had what they were going to get at that time. 16 Cum-
mings testified Kline asked him if he was going to go on
strike and he told him he was.
Union Steward William E. Witcher testified that after
negotiations between the Union and the Company broke
off, but just before' they went on strike, he talked to
some of his fellow workers about the situation and about
the fact that a union steward's meeting was scheduled
for that afternoon. Witcher stated that while he was talk-
ing with his fellow workers, Assistant Plant Manager
Kline joined them. According to Witcher, Kline asked if
he was a union steward. Witcher told Kline he was and
Kline responded he did not know that. Witcher told
Kline that a list of the stewards was posted on the bulle-
tin board. Kline told Witcher he had not looked at the
list. Kline then stated he guessed the employees would
be going out on strike. Witcher responded he did not
know, but added a meeting was scheduled for that after-
noon and he guessed they would fmd out something
then. Kline said it ought to be a boisterous meeting.
Kline also told Witcher the Company was doing all it
was going to do.
Assistant Plant Manager Kline was not called as a wit-
ness. Although I have some reservations about Cum-
mings' testimony, I shall give weight to his undenied and
uncontradicted testimony. Some, of my reservations with
respect to Cummings' testimony are as follows. Cum-
mings was very uncertain about his testimony. He testi-
fied that Kline had told him that Plant Manager Harper
had said the maintenance employees' best bet was to sup-
port the Union. Given the background of the instant
case, ' I have some reservations that Plant Manager
Harper would have said what is attributed to him. Per-
haps Cummings misunderstood. Harper, but, if he did, it
raises a question regarding whether he may also have
misunderstood Assistant Plant Manager Kline. However,
inasmuch as Kline was not called as a witness nor was
the failure to call him explained, I shall accept as accu-
rate Cummings' uncontroverted testimony. I likewise
credit the statement attributed to Kline by Witcher.
I find that no unlawful, interrogation took place in the
conversation between Cummings and Kline related to
Cummings wearing a union button. Cummings was in
fact wearing of a union button at the time of the conver-
sation. Kline did not initiate the conversation. Kline's
only response to Cummings' inquiry' about why he
16 Cummings gave a slightly different version of the conversation on
cross-examination, however, it is possible that his first recollection on this
point is correct.
CERTAPNTEED CORP.
looked worried was to state the basis of his worried
look, which was that Cummings had a union button on.
Nothing in that portion of the conversation was coercive
in nature. I find no violation of the Act in Kline' s asking
Cummings if he was going to go on strike. Cummings
stated the possibility of a strike was very much on his
and other employees' minds. Negotiations between the
Company and the Union had broken off and the employ-
ees in fact went on strike approximately 1 week after the
conversation. The Board has long, held that it is well
within the rights of employers to engage in discussions
with employees about the employees' inclinations or in-
tentions to join a strike when, as in the instant case, the
employer has a reasonable basis to fear an imminent
strike and in questioning employees it merely seeks to as-
certain the chances for it keeping its business open. In-
quiries such as the one herein do not violate the Act.
Mosher Steel Co., 220 NLRB 336 (1975); G & H Products
v. NLRB, 714 F.2d 1397 (7th Cir. 1983). The instant case
is factually distinguishable from ' Hedaya Bros., 277
NLRB 942 (1985), in which the Board held that ques-
tioning employees about whether they intended to strike
constituted a violation of Section 8(a)(1) of the Act. In
the Hedaya case, the questioning was systematic and fla-
grant and was not for the purpose of keeping manage-
ment acquainted with what was going on in the plant. In
the Hedaya case, the employer also told its employees
they were no longer represented by a union and would
be fired if they went on strike.
I find nothing coercive or unlawful in Assistant Plant
Manager Kline's asking Witcher if he was a union stew-
ard. At the time of the inquiry, the employees were dis-
cussing a meeting that was to take place later that after-
noon involving union stewards and a list of union stew-
ards was posted on a bulletin board at the plant. That list
reflected that Witcher was in fact a union steward. I
likewise do not find anything coercive in Kline's obser-
vation that the employees would go out on strike. Nego-
tiations were at impasse and the union stewards were
getting ready to discuss the strike issue that very after-
noon.
In view of the above, I recommend that those allega-
tions in paragraph 13 of the complaint that relate to As-
sistant Plant Manager Kline be dismissed.
At paragraphs 16 and 17 of the complaint, it is alleged
that Assistant Plant Manager Kline threatened employees
that the Company would not negotiate with the Union
and threatened employees with loss of jobs if they en-
gaged in concerted protected activity.' The General
Counsel relies on the above testimony of Cummings and
Witcher to establish those violations.
I am persuaded the General Counsel has failed to es-
tablish that Respondent, acting through Kline, threatened
employees the Company would not negotiate with the
Union. Kline simply apprised Cummings that the em-
ployees had all they were going to get at that time. As
noted,earlier, the conversation took place at a time when
negotiations were at impasse and a strike was imminent.
Kline did not say the- Company would not move from its
position at some point in the future; he simply stated it
was his opinion the Company had given all it was going
to at that point in time. Likewise, when Kline told
1107
Witcher the Company was doing all it was going to do,
did,not threaten that the Company would not negoti-
dte"with -the' Union. Their conversation took place just
before the union stewards, of which Witcher was one,
were going to vote on whether to strike. Under these
circumstances, Kline's statement does not constitute a
violation of the Act. Accordingly, I recommend that the
portion of paragraph 16 of the complaint that alleges Re-
spondent, acting through Assistant Plant Manager Kline,
threatened employees the Company would not negotiate
with the Union be dismissed. I am, however, persuaded
that Kline's comments to Cummings did constitute a
threat that employees would lose their jobs if they went
on strike. Kline told Cummings that if 25 percent of the
employees went on strike, none of them would come
back because' the Company would not even bother to
call them back. Kline also told Cummings the Company
hoped certain employees went on strike and stayed out.
The above comments by Kline are far more than just a
personal assessment of how the Company would operate
during and after a strike. The comments are clearly coer-
cive. The above threat that employees would lose their
jobs if they went on strike is not lessened by the fact that
Kline did not specifically identify which employees the
Company hoped would make up the 25 percent that it
would not take back. Nor is the threatening effect of
Kline's comments nullified by the fact that he said the
Company would send letters to the striking employees to
return to work. Accordingly, I find as' alleged at para-
graph 17 of the complaint that Respondent,' acting
through Assistant Plant Manager Kline, about late'
March 1985, threatened employees with loss of jobs if
they engaged in concerted activity with other employees
for the purposes of collective bargaining and other
mutual aid and protection.
e. Maintenance Superintendent Tom Lord
Employee and union steward Melvin J. Mason testified
he wore a union button, hat, and coat to work commenc-
ing about the time contract negotiations started and he
wore them until the parties signed a collective-bargaining
agreement. Mason stated he participated in the strike that
took place at the Company. Mason testified he had a
conversation with Maintenance Superintendent Lord
while the two of them were alone in Lord's office
around November 1984.114 Mason testified Lord asked
him if the employees were going to go on strike. "Mason
told Lord the employees would strike and Lord said a
lot of people would be hurt by the strike. Mason told
Lord a strike would hurt the Company a lot more than it
would the employees.
Lord testified that although he talked to Mason two or
three times per day, he could not recall ever having a
conversation with him about a strike.
I am persuaded Lord could not recall talking with
Mason about a strike because no such conversation oc-
17 After the General Counsel had Mason read a specific portion of his
pretrial Board affidavit, he agreed it reflected January 1985 as the date
when the alleged conversation took place. Mason later stated it was his
recollection that January 1985 was the date when the conversation took
place
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
curred. Mason was very uncertain about when the, al-
leged conversation took place. He first stated that it
seemed like it, took place in November 1984. After the
General Counsel asked Mason where the conversation
took place, she immediately asked him if he was certain
about when the conversation occurred. Mason replied
that it had been a long time since the event. The General
Counsel then asked Mason if the conversation could
have been later than November 1984. Mason appeared to
sense that the date he had suggested for the alleged con-
versation might not be correct. Mason then .testified the
conversation took place in late November or early De-
cember 1984. After Mason was shown his pretrial Board
affidavit by the General Counsel he agreed he had said
in his affidavit that the- conversation in question took
place in January. After further questioning, Mason then
specifically stated the conversation took place in Janu-
ary. I am convinced Mason had difficulty deciding when
the conversation took place because it never in fact oc-
curred. Inasmuch as I find no conversation occurred be-
tween Maintenance Superintendent Lord and Mason re-
garding a strike, I recommend that the allegation of in-
terrogation in paragraph 13 of the complaint which is at-
tributed to Maintenance Superintendent Lord be dis-
missed.
f. Maintenance Supervisor John W. Studivant
Union steward Witcher testified he was supervised by
Studivant. Witcher estimated that between September
1984 and April 1985 Studivant talked with him and
others about the Union "probably four, five, six, seven"
times . When asked if he could be more specific, Witcher
testified:
Well, not as far as dates. You know, I'm just in the
environment all the time, I hadn't paid that much
attention to the dates to think about it.
Witcher stated the conversation occurred sometimes on
the job and other times at the hot end area in the mainte-
nance shop. Witcher testified Studivant asked the em-
ployees:
Well, John [Studivant], he'd ask us, you know, just
whatever group was there, whoever happened to be
around, just we'd- be talking or something and
maybe he's just walk up and say something like "if
you all go out are you going with them?" Or "If
the union goes out are you all going with them?"
Witcher testified he would respond:
I'd say "Yeah, we're pretty well going with them.
You know, if they go out we'll go:"
Witcher asserts that on "lots" of occasions Studivant said
something like:
Well, you all are not going to do me that way, are
you really going out?
Witcher testified that on one particular occasion
during negotiations when the employees did not know
what was going to happen, they told Studivant: two before the strike
Just, you know, we kept telling John [Studivant]
they was a possibility we were going on strike, and
we all knew that and we just told him, says "Well,
you know, we need to get so and so fixed in the
batch house, something another so it'll last because
we are going to be out."
Witcher testified they also told Studivant they were "ex-
pecting to be out . . . 3 or 4 weeks at least at that
time."i 8 Witcher stated that when he told Studivant he
would go out on strike with the others, Studivant said,
"Well, you ain't gonna do me that way, are you?"
Witcher said it was common knowledge at that time in
the plant that there was a possibility the employees
might go on strike.
Studivant -acknowledged he supervised Witcher but
said he could not recall any conversations with Witcher
in which they talked about the employees going on
strike. Studivant specifically denied ever asking Witcher
if he would go on strike or telling Witcher that he was
not going to do that to him.
Neither Witcher nor Studivant seemed very certain
about portions of their testimony. Witcher, for example,
testified he had between four and seven conversations
with Studivant in which Studivant asked "something
like" if the employees went on strike would he go out
with them. On cross-examination, Witcher was unwilling
to acknowledge, some of the things he had said in his
direct testimony. Although Witcher testified the conver-
sations he had, with Studivant took place in the presence
of others, no other witnesses were called to testify re-
garding these conversations. Studivant did not deny
having conversations with Witcher about employees
going on strike; rather, he just stated he could not recall
any such conversations. He did, however, specifically
deny asking Witcher if he would go on strike.
Notwithstanding Witcher's uncertainty regarding dates
of conversations or exactly what was said in the conver-
sations, I credit portions of his testimony related to the
things Supervisor Studivant told him. I note that about
the time in question strike rumors were rampant through-
out the maintenance department. It is therefore probable
that the maintenance employees made the statements to
Studivant that Witcher said they did about needing to
get certain repairs completed before they went on strike
because, as Witcher further stated, the employees expect-
ed to be on strike for 3 to 4 weeks. With so much strike
talk taking place among the employees, I am persuaded
Studivant asked whether the employees would go on
strike and expressed his belief that the employees in his
department would not strike. Although I have concluded
Studivant made the comments and asked the questions
that Witcher attributes to him, I nonetheless find that,
under the circumstances, he did not say anything that
would constitute unlawful coercive interrogation. Studi-
vant's questioning the maintenance employees about their
intentions with respect to a strike came at a time, when
the fear of a strike was clearly imminent. That Studivant
was concerned about whether he could keep his depart-
18 Witcher said this particular conversation took,place about a week or
C-ERTAINTEED !201RP, 1109
ment running is reflected in his comments that he did not
believe his employees would treat him.that way-by-goitig
on strike. Lam persuaded Studivant'sfquestions and'coin-
ments were directed toward his being able to ascertain
the chances for keeping his department operating in the
event of a strike. Such inquiries are lawful. Mosher Steel
Co., supra; G & H Products v. NLRB, supra. But see
Hedaya Bros., supra.
Accordingly, I recommend that paragraph 14 of the
complaint be dismissed in its entirety.19
4. Alleged threats of futility
It is alleged at paragraph 15 of the complaint that Re-
spondent, acting through various supervisors from 15 ,
August 1984 until 11 April, threatened employees that it
would be futile for them to support the Union as their
collective-bargaining representative by telling its employ-
ees they would not get anything through negotiations,
that Respondent would not bargain, and that Respondent
had made up its mind concerning what it would give in
negotiations and would not change its mind.
a. Warehouse Supervisor Steve Wilkins
Ledford testified that in December 1984 he, Carter,
and other employees were in the warehouse breakroom
when Wilkins came to where they were. Ledford stated
that at the time the Company and the Union were at im-
passe in negotiations and the Company had implemented
a 6-percent pay increase for the unit employees. Ledford
said Wilkins asked the group if they liked the raise they
had received. Ledford asserts a few other comments
were made about the raise and Wilkins then stated,
"Well, you might as well like it, that's all you're going to
get." Ledford indicated that more or less iended the con-
versation .2 °
Wilkins denied asking Ledford if he liked his pay raise
and also denied telling Ledford he would not get any
more in the way of a raise than he had already gotten.
As indicated elsewhere in this decision, I credit Led-
ford's testimony. However, I do not consider Wilkins'
statement to Ledford and the others to constitute a
threat that it would be futile for the employees to sup-
port the Union as their collective-bargaining representa-
tive because they would not get anything through nego-
tiations. At the time Wilkins spoke to the employees, the
Company and the Union were at impasse and the Com-
pany had implemented its pre-impasse wage offer. There-
fore, the statement Wilkins made regarding the fact that
the increase that had been given was all the increase the
employees were going to receive was accurate. The
statement taken in context cannot be viewed as a threat
that employees would not get anything further, such as
19 The General Counsel stated at trial that she was relying in part on
the above testimony of Witcher to establish the violations alleged in par.
16 of the complaint. It is alleged at par. 16 of the complaint that Supervi-
sor Studivant about 10 April threatened employees that, the Company
would not negotiate with the Union Witcher's testimony does not sup-
port that complaint allegation. Accordingly, I recommend that any por-
tion of par 16 of the complaint that relates to alleged unlawful conduct
on the part of Supervisor Studivant based on the testimony of Witcher be
dismissed.
20 1 credit Carter's similar account of Wilkins' December comments
an additional pay `increase through negotiations; rather, it
has ,merely n statement that under the then-existing cir-
cumstances that was all the Company, would provide.
Accordingly, I find . Wilkins' statement, set forth above,
did not constitute a violation of the Act as alleged at
paragraph 15 of the complaint.
As is set forth elsewhere in this decision, Wilkins coer-
cively interrogated Carter in August 1984. In his August
conversation with Carter, Wilkins not only asked him if
he was stupid enough to join the Union but told him
unions were only for lazy people. Carter credibly testi-
fied Wilkins then told him the Union would not do him
any good and that the employees were fighting a losing
battle because the Company was not going to give them
anything. At the time in August when Wilkins made the
above comments to Carter, the parties had not entered
into contract negotiations.21 Therefore, when Wilkins
stated the Union would not do the employees any good,
that they were fighting a losing battle, and that the Com-
pany would not give the employees anything, he, was
conveying, as clearly as it could be stated, it would be
futile for the employees to support the Union as their
collective-bargaining representative. Accordingly, I find
Respondent, acting through Warehouse Supervisor Wil-
kins in this instance, violated the Act as alleged at para-
graph 15 of the complaint.
Carter also testified' he had a conversation with Wil-
kins in April immediately after the employees returned to
work from being on strike. Carter said Wilkins talked to
him off and on all that night. Carter asserts, Wilkins told
him he could not believe that employees actually placed
nails in the Company's' driveway and asked Carter what
he thought about the Company's getting rid of employ-
ees Smith and Gordon.22 Carter told Wilkins that over
the years a lot of other employees had donee worse things
without being discharged and added it had not been
proven that Smith and Gordon had actually placed nails
in the Company's driveway. Carter testified Wilkins
wanted to know why employees wanted "stuff' and then
commented that, the Company's edge, on its competitors
was its "cheaper labor." Carter asserts Wilkins told him
he had been "a pretty good fellow" until he allowed
Local Union President Gaines and certain union repre-
sentatives to "warp" his mind. Wilkins asked Carter
what he was going to do when he found out the Union
had been lying to' him. Carter told Wilkins he was look-
ing forward to that time because he already knew what
the Company's lies were. Carter testified Wilkins said he
did not want the situation at the Company to change
their friendship, Carter said he told Wilkins that just be-
cause the employees returned to work did not mean they
could not go on strike again if negotiations did not go
well. According to Carter, Wilkins responded, "Yeah,
you all be like Charlene [Smith] and Tommy [Gordon],
you all be hunting jobs." Carter testified Wilkins always
added each time he talked with him that the Company
was not going to give the employees anything, that they
already had all they were going to get.
2i Negotiations commenced about 5 September 1984
22 The Company's discharge of employees Smith and Gordon is dis-
cussed elsewhere in this decision.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilkins stated that because Carter worked for him he
probably talked to him in April about the strike. Wilkins,
however, denied that anything was said about a second
strike. Wilkins also denied telling Carter that if he went
on strike again , he would be like Gordon and Smith in
that he would be looking for a job.
As reflected at various places in this decision, I credit
Carter's testimony. Nevertheless, I am persuaded that
Wilkins' statements to Carter in April did not constitute
threats of futility for employees to support the Union in
that they would not get anything through negotiations.
Wilkins made his statements at a time when the parties
were at impasse in negotiations, at a time when the Com-
pany had implemented its pre-impasse wage offer, and
even at a time when the employees had completed a
strike. In my opinion, it was not unlawful under these
circumstances for Wilkins to tell Carter and others that
the Company was not going to give the employees any-
thing, that they already had all they were going to get. I
am persuaded that in the context that Wilkins made his
comments, he was not saying the Company would not
negotiate any further benefits or increases, but rather was
simply saying that at that time the Company had given
all it was going to give.
Accordingly, I recommend that any portion of para-
graph 15 of the complaint that is based on the above-out-
lined facts be dismissed.23
As is reflected elsewhere in this decision, employees
Hanley, Whitehead, and King were discussing the Union,
union dues, and,contract negotiations in September 1984
when Wilkins approached and asked why they wanted to
buy something they could get for free. Hanley testified
Wilkins then stated it did not make any difference to, him
whether the employees joined the Union, that he would
treat all employees equally. Hanley also testified on
direct examination that Wilkins further stated the Com-
pany had already given what it was going to give and
would not give any more. When confronted on cross-ex-
amination with his pretrial Board affidavit, Hanley ac-
knowledged that what Wilkins actually said was, "The
Company will not give you more than it wants to." Ac-
cepting, as I do, this latter version of the conversation as
being accurate, I find that nothing Wilkins said rose to
the level of a threat of futility for employees to support
the Union as their collective-bargaining representative.
Accordingly, I recommend that any portion of para-
graph 15 of the complaint that is based on the above-out-
lined facts be dismissed.
Building and grounds employee Rufus M. McElroy
testified that around January or February he had a con-
versation about the Union with Warehouse Supervisor
2S It is alleged at par 22 of the complaint that Wilkins about 11 April
disparaged employees by equating the employees ' involvement in union
activity and other protected concerted activity with disloyalty to Re-
spondent and Respondent 's supervisors At trial, the General Counsel
stated that Carter's testimony (outlined immediately above in the body of
this decision) established such a violation I find nothing in any of Wil-
kins' comments to Carter that would substantiate such a finding Wilkins'
comment that Carter, a known union supporter , had allowed the Union
to "warp" his mind is ambiguous and does not rise to the level of a viola-
tion of the Act I therefore recommend that par . 22 of the complaint be
dismissed in its entirety
Wilkins.24 According to McElroy, Wilkins said the
Company had moved south for economic reasons and
because it did not want a union. McElroy testified Wil-
kins told him and employee Kevin King that he had
more material things than at any other time in his life
and that if the employees did not like it, they could find
themselves other jobs. McElroy asserts Wilkins said he
believed the Union would just fold and nothing would
come of it. McElroy testified Wilkins also said the Com-
pany was not going to give anything more than what it
had already offered.
Wilkins testified he never had a conversation in Janu-
ary with McElroy about negotiations and further testi-
fied he never told McElroy the Company would not
give the employees anything more than it had already
given. Wilkins said he never told McElroy the Union
would fold.
On this particular matter, I credit Wilkins' denials out-
lined above. I have grave reservations about the reliabil-
ity of McElroy's testimony.25 The other employee who
allegedly was present at the conversation with Wilkins
was not called to corroborate McElroy's testimony.26
After carefully considering all the facts related to McEl-
roy's testimony, I am unwilling to place any reliance on
it to support any findings herein. Accordingly, I recom-
mend that any portion of paragraph 15 of the complaint
that is based on his testimony be dismissed.
b. Warehouse Supervisor Roy L. "Buck" Thomas
Employee Carter testified Warehouse Supervisor
Thomas asked him about the time contract negotiations
started in 1984 what the employees wanted. Carter told
Thomas they wanted better benefits and insurance, that
wages were not the biggest issue. Carter asserts Thomas
said he foresaw a time in the future when the Company
would not even have an insurance plan and there would
be no way the employees could get any kind of insur-
ance benefits in negotiations.27 Carter indicated Thomas
was talking about insurance at all the Company's plants,
not just its Athens, Georgia facility.
Warehouse Supervisor Thomas acknowledged he had
a conversation with Carter regarding negotiations about
the time the parties began to negotiate in September
1984. Thomas stated he had not heard what the employ-
24 McElroy's immediate supervisor at the time was Buildings and
Grounds Supervisor Glenn Baxter
25 McElroy, for example, testified he was present during a conversa-
tion in which Cold End Maintenance Supervisor Barclay told employee
Lyles that if Lyles ever messed up, Barclay would get him Based on
Barclay's superior demeanor, I am persuaded he never made such a state-
ment to Lyles This causes me to closely scrutinize other portions of
McElroy's testimony
26 Another example of what caused me to doubt the accuracy of
McElroy's testimony is that he testified the weather was hot and he was
"blistered" on the picket line on 9 April McElroy estimated the tempera-
ture was in the eighties or nineties. A photograph of approximately 27
pickets that appeared in the "Athens Daily News" for Tuesday, 9 April,
does not appear to support McElroy's testimony Most of those shown in
the photograph appear to be bundled in more clothing than would be
necessary to stay warm on a day that the temperature was in the eighties
or nineties
27 It appears from Carter's testimony that at the time of the conversa-
tion the Company provided insurance for its employees but the employ-
ees had to pay all costs for the coverage
CERTAINTEED tO
ees wanted so he asked Carter. Thomas testified Carter
told him the employees wanted better wages'and,.in
proved benefits. Thomas stated nothing was said in that
or any other conversation about insurance benefits nor
was anything said about the employees not getting any-
thing better in negotiations from the Company.'
Thomas' acknowledged interest in what was happen-
ing in negotiations, coupled with his interest in what the
employees would do if there was a strike, persuades me
that he did in fact mention the insurance matters Carter
said he did.
Thomas' statement 'that there was no way the employ-
ees could get any kind of insurance benefits in negotia-
tions with the Union' constitutes, as alleged at paragraph
15 of the complaint, a threat to employees that it would
be futile for them to support the Union as their collec-
tive-bargaining representative in that the Company had
made up its mind about what it would give in negotia-
tions and it would not change its mind. Thomas' com-
ments went well beyond just his personal opinion on
what negotiating strategy the Company might take and,
as such, violated Section 8(a)(1) of the Act and I so find.
Employee Robert O. Guest testified he was in
Thomas' office in April with' employees Roger Busbee
and Jerry Brooks just before the employees went on
strike. Guest testified it was not unusual for the three of
them to be in Thomas' office because he and Busbee had
work-related matters that required them to be in there
from time to time and Brooks, a clerk, normally worked
in that area. Guest testified on direct examination that
the three of them were talking about the possibility of a
strike based on the status of negotiations when Thomas
told them the Company had already given all it was
going- to give and that was it. Guest could not remember
how the conversation with Thomas started but stated he
thought it started with the three employees talking about
the Company's plant in Berlin, New Jersey, which was
unionized, and which paid higher wages than was paid at
the Athens, Georgia facility. Guest also acknowledged
they talked and argued about why the Company paid
higher wages in New Jersey. Guest stated Thomas told
them the Company was going to stand firm on its pro-
posals in Georgia.28
Thomas acknowledged he spoke with Guest, Busbee,
and Brooks about negotiations approximately 2 weeks
before'the strike that took place in April. Thomas stated
the three employees were talking about the union con-
28 On redirect examination , he stated he could not be sure if Thomas
used the words "stand firm" or not. Then on further cross-examination,
Guest was asked if he gave a pretrial affidavit to the Board and before he
could be asked anything further stated, "Yeah. They were supposed to
change it [the affidavit] but she [counsel for the General Counsel] said
just when I got up here to tell them what I'm saying now is the truth "
Guest then acknowledged his affidavit reflected the following, "We [the
three employees] were talking about when we would go back for negoti-
ations and be [Thomas] said the Company was going to stand,firm "
Guest stated the confusion in his affidavit resulted from the fact that he
had two conversations with Thomas, one before and one after the strike,
and that his affidavit did 'not clearly reflect that fact. Guest asserts the
same things were said in both conversations. Guest also testified his affi-
davit was incorrect because the Board agent "just wrote down what she
put down " Guest said he was not sure about some facts in his affidavit,
and that those facts about which he was uncertain were to have been re-
moved from his statement but never were
tract at the Company's Berlin, New Jersey plant when
Re-entered the,'Warehouse area where they were. Thomas
told them the cost of living in a particular area was con-
sidered when negotiating a, contract and added that the
cost of living in Berlin, New Jersey, was greater than the
cost of living in Athens, Georgia. Thomas could not
recall anything else being said. Thomas specifically
stated, nothing was said about what the Company had
given or would give in negotiations and no mention was
made of the Company standing firm in its position.
I credit Thomas' account of the conversation he had
with the three employees in question. Guest, the only'
employee to testify about the conversation, was an
unsure, mixed up, and confused witness who clearly con-
veyed the impression he did not know or was not willing
to accurately tell what he had heard Thomas say in early
April about negotiations. Nothing Thomas said could in
any way be construed to constitute a threat that it would
be futile for employees to support the Union as their col-
lective-bargaining representative. Accordingly, I recom-
mend that any portion of paragraph 15 of the complaint
that is based on the testimony of employee Guest'be dis-
missed.
c. Buildings and Grounds Supervisor Glenn Baxter
Employee Thomas L. Gordon testified his supervisor,
Baxter, spoke to him about the Union alone once or
twice a week from October 1984 until early April 1985.
Gordon stated Baxter 'would tell him the Company had
already made up its mind on negotiations and was not
going to give anything more. Gordon testified on direct
examination that he asked Baxter what would happen- if
the employees went on strike. He asserts Baxter said they
would be fired.29 Gordon stated that about 1 week
before the April strike, he heard rumors there was going
to be a strike so he told Baxter what he had heard.
Gordon stated Baxter said that was what the Company
wanted, that the employees were playing right into his
hands.
Buildings and Grounds Supervisor Baxter testified
Gordon, on one occasion, asked him if he knew anything
about the status of contract negotiations. Baxter told
Gordon that Gordon knew as much about the negotia-
tions as he did because he did not know anything. Baxter
told Gordon he figured the Company and the Union
were both taking a firm stand in negotiations. Baxter tes-
tified Gordon asked him at one time if the employees
went on strike could they be replaced. Baxter told
Gordon it depended on the circumstances, and he did
not know what the circumstances were, but it had been
done in times past at other areas.
Employee McElroy testified he talked to Baxter in
Baxter's office on 10 April. McElroy stated he asked
Baxter if the Company was planning on getting back
29 Gordon testified that on some occasions Baxter would say the em-
ployees could be replaced if they went on strike. On cross-examination,
Gordon stated he was sure he never asked Baxter if strikers would be
fired, that he only asked him what would happen to those who went on
strike When confronted with his pretrial Board affidavit, Gordon admit-
ted it reflected he had asked Baxter if the employees went on strike
would they be fired.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union. According to McElroy, Baxter said the
Company was not, that they had already given all they
were going to give in negotiations.
Baxter testified he told McElroy the same thing he
had told Gordon, which was that he did not know any-
thing about the status of negotiations, but figured the
Company and the Union were both taking a firm stand
in negotiations.
I credit Baxter's testimony regarding his conversations
with Gordon and McElroy.30 Gordon was less than
forthright and unimpressive as a witness . Gordon gave
the impression that he,would modify facts or withhold
them if he perceived it was to his benefit to do so. For
example, he testified he was sure he never asked Baxter
that if the employees went on strike would they be fired.
He stated he merely asked what would happen to those
employees that went on strike. However, when confront-
ed with his pretrial Board affidavit, he had to acknowl-
edge that it reflected he was the one who had asked the
question about employees being fired if they went on
strike. I find Gordon's testimony unbelievable that
Baxter talked to him about the Union twice a week over
an extended period of time and always managed to do so
at a time when the two of them were alone and that he
would say essentially the same thing each time they
talked. Simply stated, I am persuaded Gordon's testimo-
ny cannot be regarded as trustworthy, accurate, or reli-
able.
Accordingly, I find the comments Baxter made to
Gordon and McElroy were nothing more than frank re-
sponses to inquiries and his comments did not rise to the
level of constituting threats of futility for supporting' the
Union. I recommend dismissal of that portion of para-
graph 15 of the complaint that alleges Baxter threatened
employees it would be futile for them to support the
Union as their collective-bargaining representative.
5. Alleged threats not to negotiate
It is alleged at paragraph 16 of the complaint that Re-
spondent acting through Cold End Maintenance Supervi-
sor Barclay, Assistant Plant Manager Kline, and Mainte-
nance Supervisor Studivant about specific dates between
10 December 1984 and 10 April threatened employees
that Respondent would not negotiate with the Union.31
The General Counsel presented one witness in support
of the allegation related to Supervisor Studivant, namely,
employee Charles T. Garrett.
Garrett stated he had a conversation with Studivant
about negotiations on 10 April in the maintenance shop
at the plant. According to, Garrett, coworkers Gary
Hansford and Herman Walters were also present. Garrett
asserts Studivant said, "[T]he Company wasn't going to
budge and [the employees] should be happy with what
[they] had." Garrett could not recall anything else being
said in the conversation. 32
30 My reasons for discrediting McElroy are set forth elsewhere in this
decision
31 The allegations relating to Barclay and Kline are discussed else-
where in this decision
33 On cross-examination , Garrett acknowledged he did not know ex-
actly what words were used in the conversation.
Studivant testified he knew, but did not supervise, em-
ployees Garrett, Hansford, and Walters. Studivant could
not recall any conversation in April that involved those
three employees. However, he specifically denied ever
telling them the Company was not going to budge in ne-
gotiations or that the employees should be happy with
what they already had.
In making a credibility resolution on this particular
matter, I note Studivant did not supervise the three em-
ployees in question. There are no details in the record re-
garding how the conversation came about. I find unbe-
lievable that Studivant would approach three employees
he did not supervise and just state to them what Garrett
attributes to him. Garrett in his overall testimony on this
alleged conversation , as well as on other matters, dis-
played only a general recall of events and when asked to
provide more specific details answered either that he
could not remember or did not the know the details. The
other two employees that Garrett claims were present at
this alleged conversation were not called to testify. I
conclude Studivant could not recall the alleged conver-
sation because it never took place. Accordingly, I rec-
ommend that the portion of paragraph 16 of the com-
plaint that relates to Studivant be dismissed.33
6. Alleged solicitations to withdraw from union
membership/promise of benefits to withdraw
membership
It is alleged at paragraphs 18 and 19 of the complaint
that Respondent, acting through Cold End Maintenance
Supervisor Barclay, Warehouse Supervisor Thomas, and
Cold End Maintenance Supervisor Floyd Colquitt34
about specific dates between 1 December and 26 March,
solicited employees to withdraw from membership in the
Union and that on 18 February Warehouse Supervisor
Thomas promised employees benefits if the employees
withdrew from membership in the Union and worked
during a strike.35
a. Warehouse Supervisor Roy L. "Buck" Thomas
Carter testified a lot of talk was going around at the
plant in February about the possibility of a strike. Carter
stated Thomas asked him if he thought the employees
would strike and he told him he thought they would.
Thomas stated he hated to see that happen because it
would put a lot of people out of work that had families
to support. Carter said he told Thomas he was not finan-
cially well off but he believed in fighting for his beliefs.
Carter asserts Thomas told him, if he wanted to work,
the ' Company would find work for him. Carter asked
Thomas what he meant and Thomas told him that if he
33 It is alleged at par. 20 of the complaint that Supervisor Studivant
about 11 April threatened employees with discharge if they engaged in
concerted activity with other employees for the purposes of collective
bargaining . The General Counsel did not identify any testimony that she
would contend supported this particular complaint allegation . Inasmuch
as there is no record evidence to establish the alleged violation, I recom-
mend that par. 20 of the complaint be dismissed in its entirety
34 At trial, I granted the General Counsel 's unopposed motion to cor-
rect the spelling in the complaint of Colgmtt's name
3s The allegations related to Barclay are covered elsewhere in this de-
cision.
CERTAINTEED CORP.
wanted, to work during a strike, the Company would
find work for him. Carter told Thomas he could not
cross a picket line 'because he was union. Carter stated
Thomas told him he could show him a way to get out of
the Union, that all he had to do was write a certified
letter to the president of the Local. Carter stated he then
told Thomas that even if he was out of the Union, he
would not cross a picket line. Carter said Thomas told
him he could find work for him in some other outside
warehouse if he wanted to work. According to Carter,
Thomas asked how many employees had gotten out of
the Union. Carter told Thomas he did not know but a
few had. Thomas told Carter he was responsible for two,
employees getting out of the Union but when Carter
asked him to identify them he refused. Carter said he
told Thomas he did not see how employees could, get
out once they signed a union card. According to Carter,
Thomas responded the cards did not mean anything, that
he could give Carter a telephone number to call in At-
lanta, Georgia, and they would tell him how he could
get out of the Union and added they would tell him to
send a certified letter to the president of the Local stat-
ing he wanted out. Carter asked 'Thomas why he was
trying to get people out of the Union and he asserts
Thomas told him it was part of his job.
Thomas acknowledged he had a conversation with
Carter about the time Carter indicated regarding wheth-
er the employees would go on strike. Thomas said they
discussed the fact that no one could afford a strike.
Thomas denied ever saying anything to Carter about get-
ting out of the Union but acknowledged he told, Carter
everyone had the right to belong or refuse to belong to a
union.
I credit Carter's account of his February conversation
with Thomas. Thomas did not dispute most of what
Carter asserts was said in the conversation and, based on,
among other things, Thomas' strong interest, in what the
employees would do in the event of a strike, I am per-
suaded that it is very probable he raised the subject of
how employees could get out of the Union with
Carter.ss
In the Carter/Thomas discussion, the first mention of
how employees could -get out of the Union came from
Thomas in response to. a comment by Carter that Carter
would not cross a picket line. Carter had not, at that
time, asked Thomas about any procedure for getting out
of the Union. Thomas not only provided unsolicited
advice on how to get out of the Union but reiterated it
after he inquired about the number of employees that
had gotten out of the Union. Along with the unsolicited
advice, Thomas made it known he was responsible for
two employees getting out of the Union. Thomas' unso-
licited advice to Carter on how to get out of the Union
came at a time when he was attempting to persuade
Carter to work if a strike occurred. Soliciting employees
to withdraw from membership in a union when the idea
originates with the employer constitutes a violation of
ss Thomas' testimony, even if true, that employee Mike Sanders asked
him how an employee could get out of the Union and his testimony that
he told Sanders he did not know, that he should call the Labor Board,
would not alter my credibility resolution herein because there are too
many factors that indicate Thomas said what Carter attributes to him.
1113
the Act. Accordingly, I find as alleged in paragraph 18
of . the-- complaint, -that Respondent, acting through
Thomas, solicited employees to withdraw from member-
ship in the Union.37
b. Cold End Maintenance Supervisor -Floyd Colquitt
Employee Bob Cummings testified that about a.week
after the April strike ended , he had a conversation with
Colquitt and a coworker about the fact a lot of employ-
ees were thinking , about getting out of the Union. Cum-
mings testified Colquitt stated employees could get out
of the Union by writing a registered letter to the presi-
dent of the Local . Cummings could not recall anything
else being said in the conversation.
Colquitt recalled talking to Cummings38 shortly after
the strike ended about whether strikers could be re-
placed . Colquitt said he told Cummings and the other
employee it- was his understanding employees could be,
replaced if it was an economic strike . Cummings could
not recall any discussion about employees getting out of
the Union , but stated he had been told if anyone asked to
tell them to write the Labor Board . Colquitt stated it had
been rumored at the plant that if employees wanted out
of the Union, they could send a registered letter to the
local union president.
I credit Cummings ' account of the conversation with
Colquitt . The only operative fact in dispute is whether
Colquitt said anything about how employees could get
out of the Union. The undisputed portions of the conver-
sation strongly suggest Colquitt made mention of a pro-
cedure for getting out of the Union . Notwithstanding the
fact that I find he made the statement attributed to him, I
do not find such to constitute an unlawful solicitation to
withdraw from the Union . It is not clear on this record
that Colquitt was the first one to raise that particular
subject in the three-way conversation . It is clear Colquitt
did not dwell on, or follow up on, his advice about how
to get out of the Union. The advice was given by a low-
level supervisor to an employee the supervisor had
known for approximately , 15 years and had even gotten
the employee his job with the Company . In light of the
totality of the circumstances,. I am persuaded the General
Counsel has failed to establish that Colquitt's comments
constituted an unlawful solicitation to employees to with-
draw from membership in the Union and, as such, I rec-
ommend that the allegation in paragraph 18 of the com-
plaint that relates to Colquitt be dismissed.
7. Alleged surveillance
It is alleged at paragraph 21 of the complaint that Re-
spondent, acting through Plant Manager Charles Harper,
37 Although I have concluded Thomas' comments to Carter constitut-
ed a solicitation to withdraw from membership in the Union, I am not
persuaded he unlawfully promised Carter benefits if he would do so.
Thomas simply told Carter that if he wanted to work during a strike, the
Company would find work for him to perform either at the plant or at an
outside warehouse. Accordingly, I recommend that paragraph 19 of the
complaint be dismissed in its entirety
ss Colquitt testified he had known Cummings for 15 years, that they
were neighbors, and that he had gotten Cummings his job with the Com-
pany
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 7 April engaged in surveillance of its employees'
concerted activities with other employees for the pur-
poses of collective bargaining and other mutual aid and'
protection.
It is undisputed that Plant Manager Harper took Polar-
oid pictures beginning on Easter Sunday morning of
striking employees at the entrance gate to the plant.
Harper also took some pictures on the second day of the
strike. Harper testified he -took'the photographs on the
advice of the Company's labor counsel, who was present
with him when some of the pictures were taken.39
Harper stated there had been mass picketing with "a lot
of people across the gate" and he was trying to verify
that activity when he took the pictures in question.
Harper testified there had been ' reports of employees
shouting and standing in front of vehicles as they at-
tempted to enter the plant premises. Harper testified that
an outside security firm was hired by the Company and
that one of its vehicles had two tires punctured by nails
as it entered the plant gate where the pickets were locat-
ed. Harper stated that while he was attempting to take
the pictures, his camera was not functioning well and
one of the striking employees (probably Tony Morris)
stopped picketing and "yelled" for him to take his pic-
ture. Harper asserts he gave a hand signal to the employ-
ee that he was in fact taking his picture.40 Harper stated
someone on the picket line (probably International Union
Vice President Quardery) called to him that he was
going to take Harper's picture. Harper testified he and
Personnel Manager Hale "struck a pose" for the picture.
It is well established that, absent legitimate justifica-
tion, an employer's photographing of its employees while
they are engaged in protected concerted activity consti-
tutes unlawful surveillance. United States Steel Corp., '255
NLRB '1338 (1981); Brunswick Hospital Center, 265
NLRB 803, 807 (1982). In the instant case, I am persuad-
ed Respondent has established legitimate justification for
its actions. In this regard, I note it was estimated that
there were between 75 and 100 pickets in the gate area
at the time in question and the pickets were greatly in-
hibiting, although not completely stopping, vehicles from
entering and leaving the plant premises. Additionally, the
privat' security company personnel received' nails in the
tires of their automobile as they entered the Company's
premises and the local police department had one of its
39 Personnel Manager Michael G. Hale was also present when some of
the photographs were taken Hale testified the number of pickets present
blocked the entrance to the plant but he indicated the pickets opened up
an area to allow vehicles to enter when they approached. Hale stated it
nonetheless created a dangerous situation because vehicles entering the
plant area had to cross a lane of oncoming traffic Hale stated he was
informed by the Clarke County, Georgia police department that one of
its police vehicles which entered the plant premises on Sunday morning
received nails in the tires
40 Local Union President Gaines testified he saw Harper make a hand
motion to the strikers while he was taking pictures Gaines said he
thought Harper was motioning for the strikers to get closer together so
they could be photographed :Gaines stated he did not, however, know if
anyone responded to Harper's motion Gaines said there was no disturb-
ance on the picket line at that time Employee Leverington testified he
observed Harper motioning with one hand while holding his camera with,
the other and stated it appeared Harper was signaling for everyone to
come toward the entrance gate Leverington estimated there were be-
tween 75 and 100 employees at the picket line at that time. Leverington
also indicated there was no disturbance going on at that time
cruisers damaged nails in the tires-as they patrolled
the plant premises on Easter Sunday. There is no evi-
dence that the picture taking was excessive or constant
nor is there any showing that the pictures were closeup
photographs of any particular striking employees. Cer-
tainly, it cannot be contended that the taking of a picture
near the plant gate of nails in the tires of a security car
was an unnecessary act performed for the purpose of co-
ercing striking employees . In sum, I conclude and find
that the purpose of the picture taking was to secure evi-
dence of possible unlawful strike activity. Compare Boz-
zuto's, Inc., 277 NLRB 977 fn. 3 (1985). 1 further con-
clude there is insufficient evidence in the record for any
fording that the picture taking was for any coercive pur-
pose.41 Accordingly, I recommend that paragraph 21 of
the complaint be dismissed in its entirety. -
8. Alleged denial of a request for representation
during an interview
It is alleged at paragraphs 23 and 24 of the complaint
that about 16 September 1984 Cold End Maintenance
Supervisor Barclay denied employee Dan Hollifield's re-
quest that he be represented by the Union during an
interview which he had reasonable cause to believe
would result in disciplinary action against him. It is fur-
ther alleged that Barclay conducted the interview not-
withstanding the fact he denied Hollifield's request for, a
representative to be present.
It is undisputed that on 16_ September 1984 Hollifield
accidentally hit the emergency stop button on the equip-
ment42 he was operating, which resulted in a production
line at the plant being shut down for approximately 15 to
30 minutes. Approximately 22 employees were affected
by the production line shutdown. After Hollifield shut
the production line down, he had a meeting with Bar-
clay. However, before Barclay met with Hollifield, he
discussed with Team Manager Steve Sears Hollifield's
shutting down the production line. The two of them de-
cided to only place a verbal warning in Hollifield's
records because Hollifield had been a good operator who
had never been in any other type of trouble.
What was said between Hollifield and Barclay in Bar-
clay's office is in dispute. However, for reasons indicated
elsewhere in this decision, I credit Barclay's testimony.
Barclay credibly testified he called Hollifield to his office
and explained to him that he was being given a verbal
warning. Barclay testified Hollifield agreed to the warn-
ing.43 Barclay -stated Hollifield did not request a union
41 The hand signaling by Harper was nothing more than an innocent
ambiguous act and does not establish any unlawful conduct
42 Hollifield operated a piece of equipment called a dyken
43 Hollifield testified he figured Barclay to be a fairly strict supervisor
who would want to get to the bottom of what had happened and, there-
fore, when he arrived at Barclay's office, he asked if any disciplinary
action would be taken against him Hollifield asserts he told Barclay, if
there was going to be any disciplinary action taken, he wanted a union
representative to be present. Hollifield stated Barclay told him no disci-
plinary action would be taken, that he just wanted to talk with him.
After observing Barclay testify, and taking into consideration the discipli-
nary action he took against employees who returned late from breaktime,
I find it totally unbelievable that he would tell Hollifield that no discipli-
nary action would be taken against him for shutting down a production
Continued
CERTAINTEED CORP.
representative at any time during the meeting.. At some
point after the meeting , Barclay entered a written nota-
tion in Hollifield' s personnel file that reflected Hollifield
had been given a verbal warning.
The Supreme Court's decision in NLRB v. J. Weingar-
ten, 420 U.S. 251 (1975), is premised on the employee's
having made a request for a representative. See, for ex-
ample , San Antonio Portland Cement Co., 277 NLRB 338
(1985). Inasmuch as the established facts show that no re-
quest for a union representative was made, I recommend
that paragraphs 23 and 24 of the complaint be dismissed.
Moreover, even if Hollifield had requested a union
representative, the Company would not have been obli-
gated to honor his request because the record does not
establish that the interview was investigatory' in nature.
Barclay along with his immediate superior Sears had al-
ready determined what discipline Hollifield would be
given and the meeting with him was simply so Barclay
could inform him of the predetermined discipline. See
Baton Rouge Water Works Co., 246 NLRB 995 (1979).44
B. Alleged 8(a)(3) Violations
1. The discharges,
It is alleged at paragraph 25 of the complaint that Re-
spondent discharged and thereafter failed and refused to
reinstate its employees Charlene Smith and Thomas
Gordon on 10 April and Donnie R. Lyles on 11 March
in violation of Section 8(a)(3) and (1) of the Act.
The discharge of employees Smith and Gordon grew
out of their involvement in the strike that took place at
the plant in early April. A great deal of testimony and
other evidence was presented pertaining to the area
around the entrance gate at the plant where, those who
were present at or involved in the actual picketing were
situated. Various witnesses provided a satisfactory de-
scription of the area which I shall set forth once and
then hereinafter only make reference to the description
in setting forth specific facts related to Smith's and Cor-
don's discharge.
The picketing took place at or near the entrance gate
at the plant, which is located at the bottom of a two-lane
driveway that slopes downward from the plant to a
public road. The gate is approximately 30 feet wide and
is situated approximately 40 feet from the public road. At
least some portions of the Company's property is en-
closed by a hurricane-type fence. There is an oval-
shaped area approximately 4 by 5 feet at the en-
tranceway just outside the gate that is covered with
"goldish" colored sand that has washed down the incline
in the'road to that area. There are two street lights locat-
ed near (one inside and one outside) the entrance gate
with two additional lights located in the general area,
one at a construction entrance to the plant and the other
line Considering all the record evidence related to Barclay, it appears to
me that such a statement would have been out of character for him and,
as such, I do not believe he made such a statement
44 In light of the above disposition of the Weingarten issue, I find it
unnecessary to consider Respondent's affirmative defense that the allega-
tions relating to Hollifield's alleged request for a union representative is
time-barred by Sec 10(b) of the Act
1115
at,a fire hydrant area, both of which are approximately
40 to^50 feet from the entrance gate.45
An area large enough to accommodate at least one
automobile is located approximately 35 to 70 feet inside
the gate alongside the two-lane driveway. Approximate-
ly 100 feet inside the gate is another paved area where a
portable-type building is situated, which building has a
door and a 3-1/2 by 4-1/2 foot window that faces
toward the entrance gate. At all times during the strike
from Saturday, 6 April, until Wednesday, ' 10 April, the
Company employed private security guards from the
CASA Security Company.
a. Charlene Smith's discharge
CASA Security Company guards Rosalyn Worley and
Larry Parker 'were on duty at the Company on Easter
Sunday, 7 April. They sat in Parker's pickup truck,
which was parked on the paved area alongside the drive-
way approximately 35 to 40 feet46 inside the entrance
gate. Worley testified that at approximately 8:45 p.m. on
that date she observed a white woman and a' blond-
haired man throw something in an underhanded motion.
She said two trucks were leaving the plant area at. the
time. Worley told Parker what she observed. Parker
stated he also observed the woman throw something un-
derhanded with her right hand .4,7 Parker instructed
Worley to make an entry in the security log about what
they had observed.48
Personnel Manager Hale testified that, at approximate-
ly 9 p.m., he observed Smith from a distance of approxi-
mately 200 feet "tip toeing",across the driveway at the
entrance gate to the plant.49 Hale testified he proceeded
to the vehicle where Parker and Worley' were and asked
them if they had observed anyone pick up nails in their
tires.50 Parker told Hale he had seen the woman with a
plaid shirt sitting on the fender of an automobile throw
something. Hale asked Parker and Worley to join him in
conducting an investigation of the situation at the en-
trance gate. The three of them proceeded to the gate
area. Parker, Worley, and Hale each picked up nails in
the gate area. Hale picked up approximately 19 to 20
45 The outside lighting was updated on 28 February Some question
exists about the direction of illumination of the lights and how many of
them were actually functioning during the strike. I find it unnecessary, in
deciding the issues herein, to make a specific finding concerning how
many lights were working on the dates in question or which direction the
beams of light were cast because I find those picketing were able to see
in the direction of the guards and vice versa.
46 The distance is based on an estimate by security guard Parker
47 Both guards later learned that the woman they had observed was
Charlene Smith
48 The CASA Security Company log, a time-and-incident type docu-
ment, prepared in Worley's handwriting, reflects an 8 45 p.m entry for 7
April as follows
As truck leaves 2 strikers I girl, 1 boy threw something in street that
was possibly nails as truck approaches gate to exit.
49 Hale defined "tip toeing" as ' when a person picks up one foot and
puts it down on the toe of that foot while the other foot is in midair and
then the other foot is brought to the surface on the ball of the foot. Hale
testified that what specifically led him to the conclusion Smith was "tip
toeing" when he observed her was that she raised her knees highei than
one would normally do if one was only walking.
so Parker and Worley corroborated Hale's testimony on this particular
point.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nails.
'
51 Hale asked Worley if she could identify the indi-
viduals who threw them. Worley pointed out Smith.52
According to Worley, Smith accused her of bringing
nails to the gate area53 and called her a "bitch" and
other names.54 Hale testified Local Union Vice Presi-
dent/Strike Captain Robert Thomas asked if he could
help. Hale told Thomas they did not need this kind of
stuff and showed him the nails. Thomas told Hale he did
not know there were any nails in the area.55 Hale testi-
fied Smith became very loud and Worley told her she
did not need to treat her that way. Hale ordered the se-
curity guards back inside the fenced area. Hale testified
he then told Thomas he had better get control of the
strikers. Thomas told Hale the CASA Security Company
guards should not accuse the employees of throwing
nails and added that if the Company took any action on
the matter, he would see them in court. Hale thereafter
directed Parker and Worley to each prepare a report on
the incident. 56
Smith testified she was at the picket line not only on
the date in question but other days as well. On the date
in question, she said, she was at the picket line from 6
a.m. until noon and returned to the picket line at ap-
proximately 8:45 p.m. Smith stated that when she re-
turned that evening, she parked her automobile under-
neath the street light outside the gate area. Smith said
she sat on the hood of her car for awhile and then
showed some of the other employees in the area a blan-
ket and chair that she had in the trunk of her car. Later,
she went to the actual picket line and talked with picket
line captain Thomas about a doctor's appointment she
had. Smith testified that shortly after she spoke with
Thomas, she returned to her car and again sat on the
hood. Smith stated that shortly thereafter Hale and the
two security guards came to the gate area. Smith said
the male security guard shined his flashlight on some
nails and the female guard accused her of throwing nails.
Smith testified she told the female guard, "Bitch, I didn't
throw no nails, I don't know what your problem is, you
need to get your eyes checked." Smith testified the
female guard kept saying 'she had seen her throw nails.
Smith asserts she did not have any nails in her possession
on 7 April and never at any time that night threw any
nails.
On 10 April after the strike ended, Smith returned to
the plant but was not assigned any work; instead, she
was called to a meeting in Personnel Manager Hale's
51 The parties stipulated that the 19 to 20 nails in question were 5/8-
inch roofing nails of a silver or aluminum color
52 Worley testified the man she had seen throwing something had gone
into the crowd and she did not observe him any further
53 Worley testified she did not have any nails in her possession prior to
going to the gate area and stated she did not throw any nails
54 Worley testified Smith had on other occasions during the strike
called her names such as "Blondie" and "Rosy Cheeks." Worley stated
she considered Smith to be a "smart aleck" and a "troublemaker" by the
way she acted, and as a result of the way she acted she specifically ob-
served her on the picket line.
55 Thomas testified that probably the reason he had not seen any nails
in the area was the fact that he did' not have a flashlight
56 The reports prepared by Parker and Worley were made a part of
the record herein. The reports support the testimony of Parker and
Worley
office.57 Hale told Smith she had been accused of throw-
ing nails in the roadway at the picket line. Smith denied
throwing any nails. She was told she was suspended
pending an investigation of her conduct on 7 April at the
picket line. Thomas told Hale he would see him in court
if he fired Smith.
The first issue to be decided is whether Respondent
had a good-faith belief that Smith engaged in the miscon-
duct attributed to her.58 If Respondent carries that
burden, it is then incumbent on the General Counsel to
prove by a preponderance of the evidence that-Respond-
ent was mistaken or-that Smith did not commit the acts
for which she was discharged.
It is undisputed that nails were found at the entrance
gate to the plant on the date in question. The General
Counsel contends that Smith did not throw any nails,
that Respondent could not have observed her throwing
any nails, and that Smith could not have thrown any
nails because of physical limitations she had as a result of
a prior on-the-job injury. The Union argues that because
no one actually saw Smith throw any nails, there is lack
of credible evidence to support any contention that she
did so. The Union contends the testimony of other em-
ployees (Thomas, Hanley, and Garrett), who were at the
picket line at the time in question, supports Smith's testi-
mony that she did not throw any nails. The Union points
out that Garrett testified he saw Smith throw cigarette
butts while she was at the picket line and suggests the
unseen items may well have been cigarette butts.
I find Respondent established it had a good-faith belief
that Smith engaged in the misconduct of throwing nails.
I am also persuaded the overwhelming weight of the evi-
dence establishes Smith actually engaged in the miscon-
duct attributed to her and as such I specifically discredit
her testimony that she did not have or throw any nails
while she was at the entrance gate to the plant on 7
April. I am persuaded Smith's testimony that she did not
have' or throw any nails must be discredited for a
number of reasons.' First, I credit the disinterested testi-
mony of the two security guards, who stated they saw
Smith throw something with an underhanded motion
from her right hand. Their testimony was supported by
logbook entries and contemporaneous reports. Second, I
credit Hale's testimony that he saw Smith "tip toeing"
through the area where the nails were found. Third, nails
were in fact found in the area where Smith had been ob-
served throwing something and where she had also been
observed "tip toeing." All the above strongly suggests
and I find Smith threw nails in front of the vehicles that
57 Those present at the meeting, in -addition to Hale and Smith, were
Smith's immediate supervisor, Keith Steed, and Local Union Vice Presi-
dent Thomas
58 The General Counsel has the initial burden of establishing a prima
facie case that protected conduct was a "motivating factor" in the em-
ployer's discipline. Wright Line, 251 NLRB 1083 (1980), enfd '662 F 2d
899 (1st Cir 1981), cert denied 455 US. 989 (1982), approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983). The General
Counsel has met that burden herein by demonstrating Smith participated
in the strike at the Company and was discharged as a direct result of her
participation in that strike.
CERTAINTEED CORP.
were leaving the plant at the time in question. b9A; -factor
that weighed heavily against Smith's credibility was her
'testimony that she could not raise her arm (leaving the
implication she could not have thrown any nails) because
she had injured it on a machine at the plant. Smith's tes-
timony that she could not raise her arm was refuted by a
photograph in a local newspaper that depicted her on
the picket line with her right arm extended upward with
her fist clinched.60 It having been conclusively demon-
strated that Smith misspoke the truth on this particular
matter convinced me that she would not have any reser-
vation about misspeaking the truth on other matters.
In summary, I find Respondent fully demonstrated its
good-faith belief that Smith engaged in the misconduct
attributed to her61 and that the General Counsel did not
carry her burden of proving by a preponderance of the
evidence that Smith did not commit the misconduct for
which she was discharged. I recommend that all allega-
tions in the complaint relating to the discharge of Smith
be dismissed.62
b. Thomas L. Gordon's discharge
Quality circle facilitator Rob Wood testified he ob-
served the picketing that took place at the entrance gate
on Tuesday, 9 April, from approximately 9 a.m. until
noon. Wood made his observations from the mobile
building that was utilized as a guard shack. The guard
shack had a large window that faced the entrance gate.
Wood stated that about 11:30 a.m. the picket line seemed
to be, normal in that the 15 to 18 pickets were peaceful;
however, he stated he observed Gordon. doing something
that caused him to "perk up" and take specific notice of
what was happening. Wood said Gordon kept his left
foot on the roadway but dragged his right foot through
the entire length of'the sandy area at the entrance gate.
According to Wood, Gordon kept his head down and
appeared to be looking at something in the area of his
feet. When Gorden got to the other end of the' gate area
he turned and stopped in, the sandy area and pulled or
dragged his right foot toward his left foot while looking
at his feet for approximately,5 to 7 seconds. Wood stated
Gordon appeared to be maneuvering something with his
feet. Thereafter, Gordon continued to perform his picket
line activities. Wood asked two CASH Security Compa-
ny guards (Parker and Tiller), who were at the door of
the guard shack, if they had observed anything at the en-
se Smith's credibility is not enhanced by the testimony of Hanley, Gar-
rett, and Thomas that they did not see her throw any nails because each
of them acknowledged they did not observe Smith at all times . Hanley,
for example, stated he did not watch Smith's every move nor did he
watch her the entire time she was talking to Thomas on the picket line.
Thomas stated he had Smith in his site only 90 percent of the time. Addi-
tionally, Garrett stated he saw some nails on the evening in question, but
added he did not know who threw them
66 Smith's arm and hand were in a position that is commonly referred
to as a clinched fist salute (R. Exh. 20).
61 Smith's conduct was of a nature that posed a potential danger to
individuals as well as to property and as such it was conduct that reason-
ably tends to coerce or intimidate employees in the exercise of rights pro-
tected by the Act. Thus, Respondent could discharge her for such mis-
conduct without violating the Act
62 Based on the above findings , I am persuaded Respondent satisfied
its Wright Line burden by showing Smith would have been discharged
notwithstanding her protected activities.
1117
tia to e, gat€:, `According to Wood, the two of them indi-
cated they had not been looking in that direction at that
particular moment. Wood told CASA Security Company
guard Parker that it looked like Gordon had been setting
up nails and he asked the two of them to observe
Gordon for a minute. For the next two or three times,
Gordon walked the picket line in a normal manner.
Wood told Parker and Tiller to go to the gate area and
look around and to pay particular attention to the sandy
area because he believed nails had been placed in that
area. 63
Parker and Tiller went to the gate area where they
found between four' and nine nails, most of which were
in the sandy area and one or. two of which had, the
points sticking upward. Parker and Tiller returned to the
guard shack and gave Wood the nails.64
Wood reported this matter to Personnel Manager
Hale, who asked him to document the incident. Wood
did so.65
Gordon testified, he was a union member and partici-
pated in the strike66 on 8 and 9 April. Gordon stated he
and the other employees that walked the picket line had
to go through a sandy area in their line of march.
Gordon stated he never saw any nails on the picket line
and, although he stopped and kicked dirt and rocks in
the sandy area, he never stood up any nails at any time
in that area.
Several witnesses presented by the General Counsel
testified that employees shuffled their feet as they walked
through the sandy area at the picket line.67
At approximately 7 a.m. on 10 April, Gordon accom-
panied his immediate supervisor, Baxter, to Personnel
Manager Hale's office. Baxter started to tell Gordon
what had been observed at the picket line when Gordon
asked for a union representative. At that point Local
Union Secretary/Treasurer, Leverington was asked to
join the meeting.68 Baxter started the meeting over and
told Gordon the Company had a report that he had'shuf-
fled his feet through the sandy ^ area and that it appeared
he had attempted to stand nails up with his feet. Hale at
that point read Wood's report on the incident to
Gordon. Gordon denied standing any nails up at that or
any other time. Gordon was placed on suspension and
notified the next day that he had been terminated.
As was the case with Smith,' the issue is whether Re-
spondent had a good-faith belief that Gordon engaged in
63 Wood remained in the guard shack while Parker and Tiller went to
the gate area
64 The parties stipulated two of the nails were of the size described
elsewhere in this decision and four others were that same height but had
a 1-inch square head on them.
65 Wood's written report dated 9 April contains essentially the same
facts that he testified about
66 Gordon acknowledged on cross-examination that he never held any
official position in the Union and did not serve on the contract negotiat-
ing team
67 Employees Garrett, Hanley, Thomas, Leverington, and Witcher
each testified to that effect CASA Security Company guard Tiller also
testified that the employees who walked the picket line shuffled their feet
as they did so
68 Hale, Baxter , Gordon, and Leverington attended the meeting,
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the misconduct attributed to him.69 I find the evidence
establishes Respondent had such a good-faith belief.
Wood observed Gordon engaging in specific foot move-
ments that were far more deliberate than the actions `of
any other employee walking the picket line.70 Other em-
ployees shuffled their feet or kicked rocks, whereas
Gordon deliberately dragged one foot up to the other in
such a manner that Wood could reasonably believe
Gordon was attempting to stand nails up in the sand.71
Wood sent CASA Security Company guards to the area
where he had observed Gordon engaging in the above
described conduct and the guards found nails in that
area, some of which had 1-inch square tops that could
easily be made to stand upright. In fact, CASA Security
Company guard Tiller testified one or two of the nails
found were in an upright position. All these factors per-
suade me that Respondent had a good-faith belief that
Gordon engaged in the misconduct attributed to him.
The General Counsel, in an effort to carry her burden
of demonstrating the misconduct never occurred, pre-
sented Gordon, who denied he stood any nails up on the
picket line. I discredit that testimony and find the Gener-
al Counsel did not meet her burden. As I have indicated
elsewhere in this decision, Gordon did not impress me as
a truthful witness. In addition to my other stated reasons
for discrediting Gordon, I find unbelievable his testimo-
ny that he did not even see any nails at the picket line on
9 April. Fellow coworker McElroy, for example, ac-
knowledged he saw approximately 12 nails in the area on
that day. The security guards found nails immediately
after they went to the area where Gordon had been
walking. I am convinced that Gordon not only saw nails
on the picket line but he stood them upright with his
feet. Nails utilized in such a manner can become instru-
ments of destruction. Accordingly, I find under the cir-
cumstances that such actions by Gordon constituted mis-
conduct that reasonably tends to coerce or intimidate
employees in the exercise of rights protected by the Act,
such as the right to refrain from striking. Therefore, Re-
spondent did not violate the Act when it discharged
Gordon. I recommend that all allegations in the com-
plaint that relate to the discharge of Gordon be dis-
missed. 7 2
c. Donnie Lyles' discharge
Lyles started work for Respondent in the buildings
and grounds department under the supervision of Baxter
in 1979. The next significant work-related event that in-
volved Lyles occurred on 5 October 1984 when Baxter
gave Lyles a verbal warning for leaving work early
without authorization. Thereafter, on 17 October 1984,
69 By applying the principles set forth in Wright Line, supra, I find the
General Counsel met her initial burden of establishing a puma facie case
herein by demonstrating that Gordon participated in the economic strike
at the Company and was discharged as a direct result of his participation
in that strike.
7° I credit Wood's testimony regarding Gordon's foot movements.
71 There is no credible record evidence to suggest that Gordon was
singled out for observation by Wood for any unlawfully motivated
reason
72 In so recommending, I find Respondent has satisfied its Wright Line
burden by demonstrating Gordon would have been discharged notwith-
standing his protected conduct
Baxter gave Lyles a written warning for being out of his
work area. On that occasion Lyles had left his work area
1 hour and 10 minutes early. Baxter told Lyles that part
of his job duties were that he be in his assigned work
area during worktime. Baxter warned Lyles that future
misconduct of a like nature would not be tolerated.
Lyles, who was a member of the Union, commenced
wearing a union button at the plant in December 1984.
The credited testimony, as set forth elsewhere in this de-
cision, establishes that at some point Lyles told Cold
End Maintenance Supervisor Barclay that he had joined
the Union. It is undisputed that Lyles also told Personnel
Manager Hale, Warehouse Supervisor Thomas, and
Baxter that if there was a strike he would participate in
it.73 Lyles admittedly left work early without permission
on 28 February. As a result of his leaving work early he
was given a final written warning by Baxter on 1 March.
At that time Baxter told Lyles that any further miscon-
duct on his part could result in his being terminated.74
On 11 March, Baxter suspended Lyles pending an inves-
tigation into Lyles' returning to work late from break on
10 March.75 On 12 March,- Lyles was terminated by
Baxter for, according to Lyles, being a repeated offender
of leaving work early without permission and overstay-
ing breaktimes.
Inasmuch as the events of 10 March precipitated
Lyles' discharge, I shall examine the events of that day
in some detail.
Lyles worked overtime on 10 March for Cold End
Maintenance Supervisor Barclay, although Barclay was
not his regularly assigned supervisor. Lyles, along with
three other employees, took a morning break.711 Each of
the employees overstayed their breaktime. The first 'em-
ployee to return from overstaying his breaktime was Joel
Cooper. Barclay called Cooper to his office and gave
him a verbal warning. Approximately 2 minutes later,
employees Gwen Johnson and Fred Howard returned to
the work area. Barclay gave both of them a warning for
overstaying their breaktime. Thereafter, Lyles returned
to the work area. Barclay told Lyles he could not give
him a warning because he did not have his work records
but he would tell Lyles' immediate supervisor the next
day that he had returned to work late from his'break.
Barclay prepared a written report on Lyles' actions and
gave it to Lyles' immediate supervisor (Buildings and
Grounds Supervisor Baxter) the next day.77
After receiving Barclay's report, Baxter called Lyles
to his office and suspended him until further notice.
73 Lyles could not be certain when he told the three management offi-
cials he would go on strike if the other employees did but stated it was
sometime in 1985
74 The warning Lyles received in February that involved an exchange
of racial slurs with employee Mason will be addressed elsewhere in this
decision
75 Lyles testified he was 5 minutes late in returning from break where-
as Cold End Maintenance Supervisor Barclay stated Lyles overstayed his
breaktime by 10 minutes.
76 Lyles contends he left for break a few minutes later than the others
in order to finish a task he was working on
77 The written account reflects Lyles overstayed his breaktime by 10
minutes and further reflects Barclay gave verbal warnings to the other
employees that overstayed their breaktime
CERTAINTEED CORP.
Baxter told Lyles he was going to talk to Personnel
Manager Hale about the matter.
Baxter thereafter spoke with, Hale, Maintenance Super-
intendent Lord, and Plant, Manager Harper. 7 8 The four
of them decided to discharge Lyles. Thereafter, on 12
March, Lyles was notified of his termination.
The General Counsel and the Union argue that Bax-
ter's discharge of Lyles is highly suspect because Baxter
had allowed employees under his supervision to overstay
their assigned breaktimes. The General Counsel also
argues that further evidence of the unlawful nature of
Lyles' discharge is reflected by the fact Baxter discussed
Lyles' situation with Hale, Lord, and Harper. The Gen-
eral Counsel points out Baxter had never previously in-
volved Plant Manager Harper in any like situation.
In support of the contention that Baxter allowed em-
ployees under his supervision to overstay their breaks,
Lyles testified Baxter would sit and talk with employees
Gordon, McElroy, and himself for 10 to 45 minutes
beyond their assigned breaktime. Lyles said Baxter did
this two or three times per week and never disciplined
anyone for overstaying their break. McElroy testified
employees took as much breaktime as they could get by
with and, if they could get by with 5 or 10 minutes
extra, they did so. McElroy stated he had been present
when,Baxter joined employees on break and then talked
with them for an extra 15 or 20 minutes. Gordon testified
the amount of time for breaks was not strictly followed
and added he and others, including Lyles, had over-
stayed their break in Baxter's presence . Gordon stated
Baxter had mentioned to his employees a couple of times
that he had noticed they were overstaying their break
and ought, to refrain from doing so. Gordon testified
Baxter had talked to them about overstaying their break
approximately 2 months before Lyles was terminated.
Baxter testified employees were allowed a 15-minute
morning break with 5 additional minutes allocated for
the employees to walk to the break area. Baxter stated
he occasionally took ' a break with 'his,, employees and
when he did they talked about fishing and hunting.
Baxter testified that at least twice in the past 2 years he
had been with his employees when they overstayed their
break by possibly 2 minutes. Baxter said he frequently
'discussed work-related 'matters with employees McElroy
and' Gordon immediately after their break ended. Baxter
testified these work-related discussions would sometimes
take as much as 20 minutes. Baxter stated that during
work-related discussions he told his employees specifical-
ly what he wanted done on the job.
I credit Baxter's testimony regarding the amount of
time his employees took while they were on break. I am
persuaded that if Baxter had sat around with his work
force for as much as 10 to 45 minutes beyond their
scheduled breaktime two to three times per week, as tes-
tified to by Lyles, higher level management would have
become aware of it and would have taken the necessary
action to correct the situation. My conclusion that
Baxter told the truth regarding breaks is bolstered by the
testimony of Gordon that Baxter spoke to the, employees
78 Baxter stated that in the past he had not involved Harper in any
discussion like the one that involved Lyles.
1119
more than -pride -about their adhering to the time limits
for scheduled breaks and that they not abuse that privi-
lege.
Although the General Counsel established that Lyles
engaged in union activity which was known to the Com-
pany prior to his discharge, I am persuaded she failed to
,establish a prima facie showing that protected conduct
was a motivating factor in the' Company's decision to
terminate him. First, she failed to establish by credible
evidence that Respondent harbored any union animus di-
rected toward Lyles. Second, it was established that
Lyles had been warned at least twice about misconduct
before his union activities were known by the' Company.
In addition to those warnings, Lyles was given a final
warning and told that any further misconduct on his part
would possibly result in his termination. All of these
warnings including the admonishment were admitted by
Lyles. Third, the General Counsel failed to establish that
Lyles was treated any differently than other employees.
All the other employees that overstayed their break on
10 March were disciplined. Furthermore, Respondent es-
tablished that it had consistently disciplined employees
for overstaying their breaktime.79 Accordingly, I recom-
mend that all allegations of the complaint related to
Lyles' discharge be dismissed.
2. The Lyles/Mason warnings
It is alleged at paragraphs 26 and 27 of the complaint
that Respondent issued a verbal warning to employee
Donnie Lyles on 9 March and a permanent final warning
to employee Melvin Mason on 8 February in violation of
Section 8(a)(3) and (1) of the Act.
Inasmuch as both warnings' grew out of the same inci-
dent, I shall treat these 'two complaint allegations togeth-
er.
Local Union Steward Melvin Mason, a 7-year employ-
ee of the Company, exchanged racial slurs with 6-year
employee Lyles in late January or early February.
Mason asserts Lyles came- to, the window at the store-
room where he worked and told him to hurry with his
supplies "white boy" or he would come through the
supply window and get him. Mason asserts he told Lyles
to just calm down "nigger." 'Lyles contends that when
he approached the storeroom window, Mason called him
a "nigger" and asked him what he wanted. Lyles testi-
fied he asked Mason if he thought these were the sixties
when he could dust call someone a "nigger" anytime he
got ready. Lyles acknowledged he called Mason a
"white boy."80
Mason and Lyles are long-time friends who attended
secondary school together and' admittedly have over the
years joked with each other. Lyles stated, however, that
Mason's comments to him on the particular morning in
question really "ticked" him off and as a' result he com-
plained to his immediate supervisor, Baxter. Lyles testi-
fied he told Baxter he was tired of Mason calling him a
"nigger" everytime he went to the supply room. Lyles
79 R. Exhs. 2(a) through 21(r) establishes such a policy.
80 I rind it unnecessary to resolve the conflicts between Lyles' and
Mason's testimony, particularly in light of the fact that both admitted
using racial epithets and both were disciplined for doing to
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Baxter to speak with Mason and see if he could
get Mason to quit calling him that name.
Baxter testified he immediately went to Mason and
asked him what was going on between him and Lyles.
Mason told Baxter he would apologize to Lyles. Baxter
then informed Lyles that Mason was going to apologize
to him and asked Lyles to let him know when Mason
had done so. The next day Lyles told Baxter Mason had
apologized to him for the incident the day before.
Approximately a week later, Baxter learned, through
another supervisor, that an out-of-stock ticket, admitted-
ly prepared by Mason, had the words "Nigger Shady
Grady"8 i written on it. Baxter talked to Lyles about the
out-of-stock ticket. Lyles told Baxter it upset him and he
wanted Baxter to pursue the incident further.82
As a result of his discussion with Lyles, Baxter called
a meeting in Maintenance Superintendent Lord's office
on 8 February.83 Those present for the meeting were
Lord, Baxter, Mason, Lyles, Mason's supervisor, Cheryl
Holloman Rhoden, and Local Union President Gaines.
Lord asked Mason if he had written the particular com-
ment on the out-of-stock slip. Mason acknowledged he
had. Mason told Lord it had not been intended as a
racial slur but rather as a joke. Mason again apologized
to Lyles. Mason asked Lord if he was fired. Lord told
him the Company would let him know. Mason com-
plained that Lyles had called him a "white boy" and
"honkie."
Thereafter, it was decided by Lord and Rhoden that
Mason would be given a final written warning for using
racial slurs. The "final warning" was dated 8 Febru-
ary.84 Mason testified Supervisor Rhoden notified him of
the Company's decision and in doing so told him it was a
"permanent" final warning. Mason stated the warning
was later (28 February) modified to allow him to bid on
jobs even though he had been given a final warning.85
Mason stated that after he received the 28 February
modified final warning, he asked Rhoden if it was a
"Permanent" final warning. According to Mason, she re-
sponded, "Can't you, read, it says `any future' meaning
permanent."
The General Counsel argues Respondent refused to let
the racial slur incident remain settled after it was first re-
solved and that Respondent met with Lyles at various
times trying to convince him to take his charges against
Mason to higher management so Respondent could disci-
pline Mason, an open and active union supporter. The
General Counsel contends the Company had little, if
any, real concern about the use of racial slurs at its facili-
si Mason admitted, the comment he wrote on the out-of-stock ticket
referred to Lyles.
82 Lyles acknowledged that when Baxter showed him the out-of-stock
ticket he wanted it pursued, however, he stated he thereafter told Baxter
to drop the matter
83 I credit Baxter's testimony that he never told Lyles he felt the
matter had to be taken to higher management or that Mason had suggest-
ed the possibility of taking the matter to court. I find Lyles' testimony to
that effect to be unbelievable
84 Lyles was given a verbal warning and a written notation was made
of the warning on 9 March (R Exh 11)
85 An employee on final warning is precluded from bidding on job po-
sitions at Respondent
ty and that the racial slur incident was simply used as a
pretext for severely disciplining Mason.
I am persuaded that all the contentions made by the
General Counsel with respect to the Mason/Lyles inci-
dent are without merit.
The contention the Company continued to pursue the
matter after it had been settled is not factually borne out
by any credible evidence. Lyles admitted that after the
incident had initially been settled by Mason's apologizing
to him, he learned of the out-of-stock ticket with a racial
slur on it and asked Baxter to pursue the matter further.
Although Lyles contends he later tried to'have the entire
matter dropped he was unclear as to when or exactly
how he went about doing so. It would also appear the
incident was already being investigated at the time Lyles
made whatever efforts he did to ' have the matter
dropped.
There is no credible basis for the General Counsel's
contention that Respondent had little genuine concern
about the use of racial slurs at its facility. Two other em-
ployees involved in an incident that resulted from the use
of a racial slur were both fired. Although the other mci-
dent occurred after the Lyles/Mason exchange, it tends
to demonstrate that Respondent does regard the use of
racial slurs as serious matters. The General Counsel re-
called employee Gordon as a rebuttal witness and he tes-
tified he had called Lyles a "nigger" "enumerable
times," that Buildings and Grounds Supervisor Baxter
had called Lyles a "dumb ass nigger," and that Person-
nel Manager Hale had referred to Lyles as a "dumb
nigger." Hale denied ever using the word "nigger" in
any conversation with Gordon and stated he had never
called any black employee "nigger." Based on my obser-
vation of Gordon and Hale as they testified on rebuttal, I
am convinced Hale told the truth and I am persuaded
Gordon did not.
The contention the severity of the discipline given
Mason demonstrates it was unlawfully motivated does
not withstand close scrutiny. Mason not only uttered a
racial slur but he also reduced one to writing on an offi-
cial supply document that he knew other company per-
sonnel would see. The undisputed fact that Mason was
told his warning was "permanent" does not establish any
unlawful motivation on the part of the Company because
he was told his warning was "permanent" to the extent
that if he engaged in any future racial slurs he would be
discharged. That it was racial slurs the Company was at-
tempting to prevent by the warning is demonstrated by
the fact the- Company did not preclude Mason from bid-
ding on future job positions nor did it otherwise jeopard-
ize his future with the Company so long as he refrained
from using racial slurs. Racial epithets cannot be consid-
ered mere insults; rather, the use of such comments con-
stitutes extremely serious misconduct. The General
Counsel's contention that Lyles was given his warning in
order to punish him for his refusal to cooperate with the
Company in taking the Mason incident to higher man-
agement is patently without merit.
Accordingly, I find the General Counsel has failed to
establish that protected conduct was a "motivating
factor" in the Company's decision to issue Mason a final
CERTAINTEED CORP
written warning on 8 February and Lyles a verbal warn-
ing on 9 March. Mason and Lyles were disciplined
simply because they engaged in an exchange of racial
epithets. Therefore, I recommend that paragraphs 26 and
27 of the complaint be dismissed in their entirety.
3. Docking of Jimmy L. Gaines' pay
It is alleged at paragraph 28 of the complaint that Re-
spondent about 8 February unlawfully docked the pay of
its employee Jimmy L. Gaines.
As is reflected above, a meeting was held in Mainte-
nance Superintendent Lord's office on 8 February in-
volving the Mason/Lyles incident Maintenance Superin-
tendent Lord, Buildings and Grounds Supervisor Baxter,
and Supervisor Rhoden attended the meeting on behalf
of management. Employees Mason and Lyles were
present as well as Local Union President Gaines.
I credit the following uncontradicted testimony of
Local Union President Gaines. Gaines stated that at the
end of the meeting Maintenance Superintendent Lord
questioned him about his being there Lord told Gaines
he did not feel the Mason/Lyles matter was any of his
business. Gaines informed Lord he was there as a union
representative on behalf of Mason because Mason feared
disciplinary action might be taken against him. Lord told
Gaines, if he was there as a union representative, he
would be off the clock and not paid but, if he was there
as another employee, he would be paid. Lord told
Gaines employee Lyles would be paid for being at the
meeting because he was involved.86 The pay records re-
flect that Gaines was docked 60 one-hundredths of an
hour for the pay period covering 8 February.
The General Counsel asserts that although the amount
of pay involved is minimal , it is Respondent's motivation
for its pay action that is at issue . I am in full agreement
with that statement. The General Counsel further argues,
"[T]he undenied evidence is that Respondent docked
Gaines' pay because he attended the meeting as union
representative for an employee while simultaneously
paying another employee who was in attendance at the
meeting." The above statement , which is quoted from
the General Counsel's posttrial brief, seems at first glance
to establish discriminatory action based on union consid-
eration. However, in making her argument, the General
Counsel fails to take into account the fact that the other
employee that was present at and paid for attending the
meeting was directly involved in the subject matter that
gave rise to the meeting. Lyles was not at the meeting
just as another employee; he was there because he was
one of the two employees that had exchanged racial
slurs. According to Gaines' own testimony, Maintenance
Superintendent Lord told him the Company was paying
Lyles because he was directly involved in the incident
that gave rise to the meeting . On the basis of the above,
I conclude it has not been established that the Company
acted unlawfully when it docked Gaines' pay for 8 Feb-
ruary 60 one-hundreths of an hour. Under the circum-
stances shown herein and absent an agreement to do so,
there is no requirement than an employer pay a union
86 There is no contention that Mason, the other employee involved,
was not paid for being at the meeting
1121
representative for the time he or she spends in attend-
ance at an investigatory or disciplinary interview. Ac-
cordingly, I recommend that paragraph 28 of the com-
plaint be dismissed in its entirety.
4. Transfer of William Leverington
It is alleged at paragraph 29 of the complaint that Re-
spondent about 15 April unlawfully transferred its em-
ployee William A. Leverington from the position of pre-
ventive maintenance mechanic to that of fiberizing me-
chanic.
Local Union Secretary/Treasurer Leverington was
employed as a maintenance mechanic on the hot end in
the maintenance department for an unspecified time prior
to January. From January until 15 April, Leverington
worked as a preventive maintenance mechanic on the
cold end in the maintenance department Leverington
testified he was assigned from the hot to cold end posi-
tion by Maintenance Supervisor Studivant. Leverington
said Studivant and Supervisor Randy Minish (Levering-
ton's immediate supervisor) talked to him about the cold
end maintenance job at the time he was given the assign-
ment . Leverington asserts they told him that the person
normally performing that job, Jim Watson, had been in-
jured in an automobile accident and would be on medical
leave for some time. Studivant asked Leverington if he
would take Watson's job until Watson was able to work.
Leverington testified he asked Studivant if the job
change would be permanent. According to Leverington,
Studivant said he would be able to return to his hot end
assignment when Watson returned to work. Leverington
said he looked to Minish for that same assurance and he
contends Minish gave him the same assurance that Studi-
vant had Leverington testified he then told Studivant
and Minish he would take the cold end maintenance job
on a temporary basis. Leverington stated the cold end
position was an assigned job.87 Leverington testified
Watson returned to work from medical leave about a
week after the April strike ended. The day after Watson
returned to work, Studivant called Leverington to his
office. According to Leverington, Studivant told him he
was going to be assigned to the fibenzing shop. Lever-
ington wanted to know why since he had not volun-
teered for that job. Leverington testified Studivant told
him he did not know why he was being assigned to the
fiberizing job. Later, Leverington asked Studivant why
the fiberizing job was not being posted and Studivant
told him he did not know. Leverington told Studivant he
was not volunteering for the fiberizing job but he would
do it because he was told to.
Leverington testified the fiberizing shop was located in
the southeast corner of the main plant area in a separate
building approximately 40 feet from the main plant. The
fiberizing shop is windowless except for a window in the
87 Leverington stated several other positions were assigned jobs,
namely, preventive maintenance mechanic on the hot end, lubrication
person, compressor room person , preventive maintenance mechanic, pre-
ventive maintenance electrical, utility fire system, and the fiberizing job
Employee Witcher stated the fiberizing job was an assigned one because
it was a preferred position in that the work was performed in an air-con-
ditioned building
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entrance door. Leverington stated that unless employees
had specific business in the fiberizing shop they were not
allowed to be in there., Leverington stated he and one
other hourly employee along with one salaried employee
were all that worked in that particular area. Leverington
said that when he worked in the fiberizing shop he only
had an occasion to go to the main plant on work-related
matters for 15-minute periods two or three times, per
week. Additionally, Leverington stated he might have an
occasion to go to the repair shop in the main plant once
every 2 weeks. Leverington testified he was still able to
take his breaktimes in the main plant breakroom and he
could visit with other employees at that time if , he
wanted to.
Leverington testified that when he worked as a pre-
ventive maintenance mechanic on the hot end in the
maintenance department, he had daily contact with ap-
proximately 20 employees. During the time he was as-
signed to the preventive maintenance mechanic's position
on the cold end in the maintenance department, he had
contact with over 100 employees.88
Leverington testified that prior to his most recent job
assignment, he had been approached by supervisors
about assigned jobs and was asked if he would volunteer
for such positions. Leverington stated the Company had
in the past gone to employees and sought volunteers and,
if no employee volunteered for an assigned job, then the
least senior employee was given the job. Leverington
stated that in the past supervisors had talked to him
about, or had offered him, positions such as the lubrica-
tion person, forklift operator, and fiberizer. He stated he
had on each occasion turned down the job offers. Lever-
ington stated that occasionally the Company even posted
assigned jobs but added that at the time he was assigned
the fiberizing position, it was not posted.
Leverington stated there were vacancies in preventive
maintenance on the hot end at the time he was assigned
the fiberizing position because employees Bob Shumate
and Ricky Minish were on temporary assignment from
hot end positions to flex duct at the Company's facility
in Atlanta, Georgia. When Shumate and Minish returned
from Atlanta to Athens, Georgia, which was after Le-
verington had been assigned the fiberizing position, they
were returned to their assigned hot end maintenance po-
sitions.89 Leverington stated the Company had to trans-
fer employee Roy Hall out of the fiberizing shop to a
preventive maintenance mechanic hot end position in
order to be able to assign him to the fiberizing shop.
Local Union Steward Witcher also testified that when
a vacancy occurred on an assigned job the supervisor
"usually" asked for volunteers and, if no one volun-
teered, the job was given to the least senior employee.
Witcher stated he had been asked about and had rejected
certain job positions. Witcher added that sometimes the
88 Leverington stated he was active for the Union at and during the
time he was assigned as a preventive maintenance mechanic on the cold
end
B9 Leverington testified he believed Shumate and Mmish both had
more seniority than he did
Company even posted letters on the bulletin -boards
about assigned jobs.90
Maintenance Supervisor Studivant testified he trans-
ferred Leverington from his preventive maintenance hot
end position to a preventive maintenance cold end posi-
tion because the employee that had been working on the
cold end was involved in an automobile accident. Studi-
vant testified that neither he nor anyone else made any
guarantees to Leverington that he would be returned to
his hot end assignment when the injured employee re-
turned to work. Studivant said he assigned Leverington
to the fiberizing shop for training purposes. Studivant
testified there were three employees fully qualified to
perform the fiberizing job at the time he assigned Lever-
ington to it.9 i Studivant stated he did not talk to the
three about the position before selecting Leverington be-
cause he did it for- training purposes.92 Studivant stated
he never considered seniority in any job assignment he
made.93 Studivant specifically stated Levenngton' s union
activities played no part in his decision to assign him to
the fiberizing shop.
Maintenance Superintendent Lord, who was involved
in the decision to place Leverington in the fiberizing
shop, stated Leverington's transfer was based on two
factors, namely, that the employee he had been filling in
for had returned from medical leave and, he possessed
the necessary skills to be trained in the fiberizing shop.
Lord stated' the Company had opened a new line that
caused a temporary increase in the amount of work that
had to be performed in the fiberizing shop. Lord testified
that assigned maintenance jobs had never been posted
but added that from time to time the Company had
sought to ascertain employee interest in certain jobs.
Lord testified job- assignments were strictly made on
Company needs in conjunction with the discretion of the
supervisors involved. Lord said the Company did not
have any written policy on rotating employees for train-
ing purposes but asserted it was a goal the Company
wanted to accomplish.
The General Counsel contends the Company assigned
Leverington to the fiberizing shop in order to isolate him
from his fellow workers because of his union' activities.
She argues Leverington was treated in a disparate
manner in that volunteers were not sought for the fiber-
izing -position and that Leverington was selected against
his will. The General Counsel points out that there were
vacancies on the, hot end in the maintenance department
at the time Leverington was transferred to the fiberizing
shop. The General Counsel also asserts the Company did
90 Witcher acknowledged on cross-examination that he had stated in
his 13 June pretrial Board affidavit that he had "never known the Com-
pany to formally post bids or ask for volunteers on any assigned jobs."
Witcher explained the Company had not "formally" posted jobs, It seems
the purport of his testimony was that the Company informally asked em-
ployees about volunteering for assigned positions.
91 The two other employees were McDaniel and Morgan
92 Studivant stated that when a position vacancy occurred that did not
involve training he informally asked employees about their interest,in the
assignment and then made his selection from those who expressed an in-
terest. Studivant said he had previously transferred employees for train-
ing purposes but had not done so in the past 2 years
93 Maintenance Superintendent Lord testified that seniority, at most,
played only a minor part in job assignments
CERTAINTEED CORP.
not justify its transfer of Leverington_ and sb,e contends
the absence of any justification suggests the transfer was
unlawfully motivated.
The General Counsel has demonstrated that Levering-
ton was an active union supporter. He served as a union
steward and was on the union negotiating committee.
The Company was fully aware of Leverington's activi-
ties including his participation in the early April strike at
the Company. As is set forth elsewhere in this decision,
some general evidence of union animus has been estab-
lished. Leverington was transferred to the fiberizing shop
shortly after he and the other employees returned to
work from being on strike. All the above factors support
a finding that the General Counsel has established a
prima facie showing that Leverington's protected con-
duct was a motivating factor in the Company's decision
to transfer him from one job assignment to another.
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp.,
462 U.S. 393, 400-403 (1983). I am, however, persuaded
the Company has demonstrated it would have taken the
action it did even in the absence of Leverington's pro-
tected conduct.
I credit Studivant's testimony that neither he nor
anyone in his presence ever guaranteed Leverington that
he would be returned to his preventive maintenance me-
chanic's position on the hot end when he was transferred
to the cold end. Studivant did not impress me as a kind
of supervisor who would make such a guarantee. He
gave every indication he was a strict supervisor who, for
example, wanted to know if he would be able to run his
department in the event of a strike.
The timing of Leverington's transfer from the preven-
tive maintenance position on the cold end to the fiberiz-
ing shop was not,determined by Respondent. Levering-
ton was transferred only after an injured employee re-
turned to work. 'there is no showing the Company did
or could have altered the timing of the return to work of
the injured employee. Furthermore, no unlawful motive
can be established by the fact the Company did not at'
that time transfer Leverington back to a preventive
maintenance mechanic's position on the hot end to fill in
for employees Shumate and Minish because they were
only out of that department temporarily and it appears
they were both probably senior to Leverington.
I find Leverington was not treated in a disparate
manner when the 'Company selected him for the fiberiz-
ing job even though it did not seek volunteers for the
position. From all the testimony, specifically including
Union Steward Witcher's testimony, it does not appear
the Company, had' any hard and fast practice of seeking
out volunteers before making job assignments. It does
appear the Company may have, at times, done so. I
credit Studivant's reasonable explanation for not seeking
volunteers on the occasion in question because he stated
he was making the assignment for training purposes. The
validity of the training purpose is bolstered by Lord's un-
refutted testimony that more work than normal was
going to be performed in the fiberizing shop at that
period in time.
1123
1 am, not persuaded the Company transferred Lever-
ington to isolate him from other employees because the
Company had previously transferred him, at a time when
he was active for the Union, from a job where he had
contact with approximately 20 employees to a position
where he had contact with over 100 employees. If the
Company had been attempting to isolate Leverington
from other employees, it would not have transferred him
from the preventive maintenance mechanic"s position on
the hot end to the preventive maintenance mechanic's
position on the cold end.
I am persuaded the, Company has demonstrated it
transferred Leverington to the fiberizing shop for train-
ing purposes and as such I credit Studivant's testimony
that Leverington's union activities played no part in his
decision to transfer him.
Accordingly, I recommend that paragraph 29 of the
complaint be dismissed in its entirety.
C. The Alleged 8(a)(5) Violations
It is alleged at paragraph 31 through 34 of the com-
plaint that about 10 April the Union requested, and Re-
spondent refused to furnish the Union with, copies of
Respondent's reports on the strike misconduct of em-
ployees Charlene Smith and Thomas Gordon. It is al-
leged that Respondent's -refusal to provide the requested
information violated Section 8(a)(5) and (I) of the Act.
Respondent does not dispute the fact that Smith
among others requested a copy of the security officer's
statements relating to her activity on the picket line. Not
only did Smith ask for a copy of the' security officer's re-
ports but Local Union President Gaines also asked Per-
sonnel Manager Hale for 'the same information.94 Re-
spondent does not deny, that Personnel Manager Hale re-
fused to provide the requested information related to
Smith. Hale contended the requested information was
witness statements . Local Union Secretary/Treasurer Le-
verington asked Hale for any reports relating to the
picket line activity of employee Gordon. Hale refused to
furnish Leverington with the requested information.9 s
The General Counsel asserts the Act imposes on an
employee the general obligation to, provide , on request,
information that is necessary and relevant to the proper
performance by a union of its duties as a bargaining rep-
resentative. She points out the-Board has applied a broad
relevancy standard to requests for information. The Gen-
eral Counsel contends the Union clearly communicated
to Respondent its request for necessary and relevant in-
formation and that Respondent refused without justifica-
tion to furnish the requested information. Thus, she con-
tends a clear violation of 'the Act has been established.
Respondent on the other hand contends it did not vio-
late the Act when it refused to provide the requested in-
formation. It contends that under Board principles out-
lined in Anheuser-Busch, Inc., 237 NLRB 982, 984-985
(1978), it had no obligation to provide the witness state-
94 Personnel Manager Hale testified he believed Gaines asked for the
reports on Smith and Gordon but stated he could not specifically recall
him doing so
ss It appears the information Leverington sought on employee Gordon
was a one-page report prepared by Quality Circle Facilitator Wood
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments it obtained during the course of its investigation
into the employees' misconduct. Respondent further
argues it was not obligated to provide the requested in-
formation because the information sought pertained to a
Board charge and did not relate to bargaining.
The governing principles in deciding whether an em-
ployer is required to furnish a union with information are
well established. The general rule is that an employer has
a statutory obligation to supply requested information if
there is a probability that such data is relevant and will
be of use to the union in fulfilling its statutory duties and
responsibilities as the employees' exclusive bargaining
representative. Buffalo Concrete, 276 NLRB 839 (1985);
see also NLRB v. Acme Industrial Co., 385 U.S. 432
(1967). These "responsibilities" include the administration
of a contract and the processing or evaluating of griev-
ances. Clinchfield Coal Co., 275 NLRB 1384 (1985). The
standard for determining whether information is relevant
is a liberal one much akin to that applied in discovery
proceedings. Leland Stanford Junior University, 262
NLRB 136, 139 (1982), see also NLRB v. Truitt Mfg. Co.,
351 U.S. 149 (1956). An employer must furnish informa-
tion that has probable or potential relevance to a union's
responsibilities and duties because a broad discovery rule
is crucial to the full development of the role of collective
bargaining contemplated by the Act. Conrock Co., 263
NLRB 1293, 1294 (1982); E. I. du Pont & Co., 276
NLRB 335 (1985); Graphic Communications Local 13 v.
NLRB, 598 F.2d 267 (D.C. Cir. 1979). Information is
presumed relevant if it concerns the terms and conditions
of employment of the employees represented by the
union. Buffalo Concrete, supra; Ohio Power Co., 216
NLRB 987 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976).
The Board considers all the circumstances of a case in
determining whether a union has established the rel-
evance of the requested information. Bohemia, Inc., 272
NLRB 1128 (1984).
Applying the above principles to the instant facts, it is
clear the information sought was both necessary and rel-
evant to the Union's proper performance of its duties and
responsibilities. The information sought pertained to the
discipline (discharge) given two bargaining unit employ-
ees. It is obvious that such information would be helpful
to the Union in determining what course(s) of action it
might desire to take on behalf of the bargaining unit em-
ployees involved. However, a finding, as I have made
herein, that the information requested was both relevant
and necessary is not dispositive of the issue concerning
whether Respondent had, and continues to have, an obli-
gation to provide the requested information. The Board
in Anheuser-Busch, supra, held that the "general obliga-
tion" to honor requests for information as set forth in
Acme and related cases does not encompass the duty to
furnish witness statements. In so holding, the Board rea-
soned as follows (237 NLRB at 984):
We, of course, recognize and continue to adhere to
the Acme principle that Section 8(a)(5) of the Act
imposes on an employer the "general obligation" to
furnish a union, upon request, information relevant
and necessary to the proper performance of its
duties as bargaining representative. Witness state-
ments, however, are fundamentally different from
the types of information contemplated in Acme, and
disclosure of witness statements involves critical
considerations which do not apply to requests for
other types of information. We do not believe that
the principle set forth in Acme and related cases
dealing with the statutory obligation to furnish in-
formation may properly be extended so as to re-
quire an employer to provide a union with state-
ments obtained during the course of an employer's
investigation of employee misconduct. [Footnote
omitted.]
Requiring prearbitration disclosure of witness
statements would not advance the grievance and ar-
bitration process. In this regard, we note particular-
ly the recent opinion of the Supreme Court in
NLRB v. Robbins Tire and Rubber Company, 98
S.Ct. 2311 (1978). The issue before the Court in that
case was whether the Freedom of Information Act
(FOIA), 5 U.S.C., § 552, required the Board to dis-
close, prior to a hearing on an unfair labor practice
complaint, statements of witnesses whom the Board
intended to call at the hearing. In determining that
the FOIA does not require the Board to disclose
such statements , the Court discussed the potential
dangers of their premature release , including the
risk that "employers or, in some cases, unions will
coerce or intimidate employees and others who
have given statements , in an effort to make them
change their testimony or not testify at all." 98
S.Ct. at 2325. The Court also expressed concern
that witnesses may be reluctant to give statements
absent assurances that their statements will not be
disclosed at least until after the investigation and
adjudication are complete. 98 S.Ct. at 2325. In Rob-
bins . Tire, the narrow issue before the Supreme
Court was ' whether production of witness state-
ments taken by the Board would "interfere with en-
forcement proceedings" within the meaning of Ex-
emption 7(a) of FOIA, 5 U.S.C. § 552(b)(7)(A). We,
however, believe that the same underlying consider-
ations apply here and that requiring either party to
a collective-bargaining relationship to furnish wit-
ness statements to the other party would diminish
rather than foster the integrity of the grievance and
arbitration process.
The Board in`a recent case, Conoco Chemicals Co., 275
NLRB 39 (1985), adhered to its Anheuser-Busch holdings.
The respondent in Conoco in a motion for summary judg-
ment contended the union had, in its request for informa-
tion, sought the names of the witnesses respondent inter-
viewed in support of its decision to discipline an employ-
ee as well as any statements the witnesses gave to re-
spondent. The Board in Conoco noted the complaint only
involved the union's request for the identity of the wit-
nesses interviewed' by respondent. The Board noted the
union admitted it ' had originally sought any statements
taken by the respondent from the witnesses but further
noted the union had later withdrawn that portion of its
request. The Board in Conoco determined that factual
CERTAINTEED CORP. 1125
issues had been raised that needed -to _be resolved at a
hearing and denied respondent's motion for summary
judgment. However; in so doing, the Board, citing An-
heuser-Busch, specifically -noted at footnote 1 of its deci-
sion that a respondent is not required under Board prece-
dent to furnish witness statements to a unions. In Ameri-
can Telephone & Telegraph Co., 250 NLRB 47 at fn. 2
(1980), the Board, citing Anheuser-Busch, deleted from an
administrative law judge's decision that portion of his
recommended remedy that ordered the respondent there-
in to provide the union with witness statements. Guided
by the above, I am persuaded Respondent was not obli-
gated to furnish the Union the statements it took from
witnesses related to the picket line conduct of Smith and
Gordon. The General Counsel urges that reports of
trained security personnel are fundamentally different
from the type witness statements contemplated in An-
heuser-Busch, She urges that the potential danger of coer-
cion or intimidation is simply not present. The General
Counsel's arguments are without merit. In Anheuser-
Busch, the Board not only expressed a concern about em-
ployees who gave statements being coerced and intimi-
dated into changing their testimony or not testifying at
all, but it also expressed that same concern for "others"
who gave statements regarding employee misconduct.
Some evidence in the instant case tends to indicate that
Smith may have engaged in conduct at a local fast food
establishment that could be considered intimidating. Re-
spondent's Exhibit 3, which was a statement made by
CASA Security Company guard Worley at Personnel
Manager Hale's request, states in part:
The next morning 4-8-85 I was at Hardee's [a fast
food establishment] on North Ave. I parked my car
and entered. She [Smith] was in the drive thru line
and started blowing her horn. I entered and was
standing in line inside and she pulled out of line and
parked and came insi and tried to make a scene in
front of approximatel 0 that were up front. After
this I told her that if she 't get out I would call
the cops [and] she said go,ahead and said some
things to a boy standing near' , by in line who was
apparently a Certainteed Employee but he made no
comment and she exited.
In light of all the above, I find Respondent did not vio-
late the Act when it refused to provide the Union with
the witness statements that pertained to employees
Smith's and Gordon's misconduct on the picket line. Ac-
cordingly, I recommend that paragraphs 31 through 34
of the complaint be dismissed.
that' ii--would-be -futile for the employees to support the
Union as their collective-bargaining representative, by
threatening its employees with loss of jobs if'they en-
gaged in concerted activity with other employees for the
purposes of collective bargaining and other mutual aid
and protection, and by soliciting its employees to with-
draw from membership in the Union, Respondent violat-
ed Section 8(a)(l) of the Act.
4. The violations of the Act noted above constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of 'the Act.
5. Respondent has engaged in no other unfair labor
practices not specifically noted above.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
It is recommended that Respondent be ordered to post
the attached notice to employees marked "Appendix" for
a period of 60 consecutive days in order that employees
may be apprised of their rights under the Act and Re-
spondent's obligation to remedy its unfair labor prac-
tices.9 6
On these findings of fact and conclusions of law, and
on the entire record, I issue the following recommend-
ed97
ORDER
The Respondent, Certainteed Corporation, Athens,
Georgia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or union activities.
(b) Threatening employees that it would be futile for
them to support the Union as their collective-bargaining
representative.
(c) Threatening employees with loss of jobs if they
engage in concerted activity with other employees for
the purposes of collective bargaining and other mutual
aid and protection.
(d) Soliciting employees to withdraw from member-
ship in the Union.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Athens, Georgia, copies of the
attached notice marked "Appendix."98 Copies of the
CONCLUSIONS OF LAW
1. Certainteed Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Glass, Pottery, Plastics and Allied Workers Interna-
tional Union, AFL-CIO, CLC and Local 260 are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By coercively interrogating its employees concern-
ing their union activities, by threatening its employees
96 Due to the limited violations established herein, I deny the General
Counsel's request for a visitatorial clause. ,
9' 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. 10248 of the Rules, -be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
98 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for
Region 10 , 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.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
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.
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 protect-
ed concerted activities.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT threaten you that it would be futile for
you to support the Union as your collective -bargaining
representative.
WE WILL NOT threaten you with loss of jobs if -you
engage in concerted activity with other employees for
the purposes of collective bargaining and other mutual
aid and protection.
WE WILL NOT solicit you to withdraw from member-
ship in the Union.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of nghts
guaranteed you by Section 7 of the Act.
CERTAINTEED CORPORATION