Diversified Products

National Labor Relations Board - Board Decisions

Nov 8, 1984

272 N.L.R.B. 1070 (N.L.R.B. 1984)

1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diversified Products and United Rubber, Cork, Li
noleum & Plastic Workers of America, AFL-
CIO Cases 10-CA-19656 10-CA-19803 and
10-CA-19960
8 November 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 May 1984 Administrative Law Judge J
Pargen Robertson issued the attached decision The
Respondent and the General Counsel filed excep
lions and supporting briefs and the Respondent
filed an answering brief to the General Counsel s
exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings 1 and
Contrary to our dissenting colleague we agree with the judge s find
mg that under Rossmore House 269 NLRB 1176 (1984) the Respondent s
statements to employee Pace an open union adherent were not unlawful
In addition we note that Pace testified that he freely discussed the Union
with Supervisor Murphy after Murphy told Pace he was under no obliga
tion to discuss the subject and that Pace s decision in this regard would
have no effect on his employment Further Pace returned to Murphy s
office the following day to continue their discussion Under the circum
stances we do not find that the Respondent s conduct would reasonably
coerce employees in the exercise of rights guaranteed by the Act
The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cif 1951)
We have carefully examined the record and find no basis for reversing
the findings
Applying NLRB v Burnup & Suns 379 U S 21 (1964) the judge found
that the Respondent did not honestly believe at the time It suspended em
ployee Washington that Washington had threatened employee Moore
Further finding that Washington had not in fact threatened Moore as al
leged the judge therefore concluded that the Respondent was not justi
fled in suspending Washington for statements he allegedly made in the
course of discussing the Union with Moore While we agree with the
judge s finding that Washington did not engage in the alleged miscon
duct we do not agree with his finding regarding the Respondent s belief
In making that finding the judge stated that Washington testified that he
told the Respondent during its investigation that he was in the presence
of employee Hutchinson in the plant at the time Washington was al
leged to have threatened Moore while in the Respondent s parking lot
The record does not indicate any such testimony by Washington and we
find that the other evidence relied on by the judge is insufficient to estab
lish that the Respondent did not have an honest belief of Washington s
guilt at the time it suspended him However because It has been shown
that Washington did not engage in the alleged misconduct we agree with
the judge s conclusion that the Respondent violated Sec 8(a)(1) of the
Act by suspending Washington
In the absence of exceptions thereto we adopt pro forma the judge s
findings that the Respondent violated Sec 8(a)(1) of the Act by interro
gating employees Morgan Foreman and Harris about their union actin
ties and by establishing and enforcing a new rule prohibiting employees
from being in the plant more than 15 minutes before or after their as
signed shifts
conclusions 2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Diversified
Products Opelika Alabama its officers agents
successors and assigns shall take the action set
forth in the Order
MEMBER DENNIS dissenting in part
I would not dismiss the allegations that the Re
spondent violated Section 8(a)(1) by interrogating
employee Pace and giving him the impression that
management was investigating union activities in
the plant Unlike the majority I do not think Ross
more House' supports the dismissal
In Rossmore House the Board disavowed a per
se approach to evaluating employer questioning of
employees and reiterated the basic test for deter
mining whether such questioning is unlawful
whether under all of the circumstances the inter
rogation reasonably tends to restrain coerce or
interfere with rights guaranteed by the Act (id at
1177) The Rossmore House decision recognized
that an employer may exchange views on union or
ganization with employees and that questioning
open and active union supporters about their union
sentiments in the absence of threats or promises
does not necessarily violate the Act Old ) This
does not mean however that once employees have
openly proclaimed their support of a union they
may be subjected to coercive employer conduct
Employer conduct directed toward open union ad
vocates may or may not be privileged depending
on the factual circumstances
In this case I am not sure that employee Pace
was an open union advocate within the meaning of
Rossmore House when the Respondent s director of
personnel Mike Murphy called him into the office
and spoke about the Union Assuming however
that Pace was an open union adherent the circum
stances here suggest that the Respondent s conduct
was coercive Murphy defied Pace to deny that he
was soliciting union cards and at the same time as
serted that Pace was having problems with the
Company Murphy also referred to Pace s attempts
to obtain jobs within the Company for relatives
suggesting a connection between union activity and
2 In his Additional Conclusions of Law the judge stated that the
discharge of employee Washington was violative of Sec 8(a)(1) We
note however that earlier in his decision the judge concluded that
Washington was discharged because of his union activities in violation of
Sec 8(a)(3) .i
269 NLRB 1176 (1984)
272 NLRB No 162
DIVERSIFIED PRODUCTS 1071
potential company favors In addition to question
ing Pace Murphy emphasized the possibility of
company surveillance of union activity by frankly
declaring that he had ways to find out what was
going on out in the plant
Murphy s August interview of Pace was fol
lowed in September by a foreman s comment to
Pace that he had heard Pace was running around
passing out union cards Furthermore the Re
spondent s communications with Pace occurred in
a context of other employer unfair labor practices
The totality of circumstances therefore dictates
a finding that the Respondent s communications
with Pace violated Section 8(a)(1)
DECISION
STATEMENT OF THE CASE
J PARGEN ROBERTSON Administrative Law Judge
The instant complaint is predicated on the captioned
charges which were filed on January 27 1984 and No
vember 21 and October 13 1983 respectively The issues
were finally presented in an amended consolidated corn
plaint which issued on February 28 1984 The complaint
alleges several independent 8(a)(1) violations along with
8(a)(3) allegations regarding a written warning to one
employee and a 3 day suspension and a subsequent dis
charge to another employee
On the entire record and from my observation of the
witnesses and after due consideration of the briefs filed
by the General Counsel and Respondent I make the fol
lowing
FINDINGS OF FACT1
A July 1983
The record developed a calendar of events showing
that in early July 1983 the United Rubber Workers insti
tuted an organizational campaign at Respondent s Ope
lika Alabama facility
At Opelika Respondent manufactures recreational
equipment Some 2500 employees are employed at the fa
cility with 1500 of those being in the main plant The in
cidents material herein allegedly occurred in the main
plant
B August 1983
(1) Alleged discriminatee James Washington testified
that he became involved in the organizational campaign
on behalf of the Union in early August 1983 Washington
solicited employees to sign and to help encourage others
to sign union authorization cards and he explained the
Union to other employees
The commerce facts and conclusions are not in Issue Respondent ad
muted that it is an Alabama corporation with a place of business in Ope
lika Alabama where It is engaged in the manufacture of athletic equip
ment and is an employer engaged in commerce within the meaning of
Sec 2(2) (6) and (7) of the Act Respondent also admitted that the
Charging Party herein is a labor organization within the meaning of Sec
2(5) of the Act
(2) Alvin Jerome Pace testified to a conversation he
had with Director of Personnel Mike Murphy on August
24 1983 Pace stated that he was called into Murphy s
office and asked about two relatives who was trying to
get a job at DP Eventually during that conversation
Murphy
made the statement that something was puz
zling him Why would a man who was apparently
having problems at DP try to get his relatives a job
there?
I asked him what did he mean that I was having
problems He said You re running around passing
out union cards I know this and you can t deny it
I didn t deny the statement because it was true
He said the unions only come around when the
plant is doing good He asked me where were they
in hard times
He said he had ways to find out what was going
on out in the plant He also made the statement that
he once was in a union his father was in the union
and at one time the unions were good for the
people but now all they was after was union dues
I asked him what did he have against the Union
He said they was political and made false state
ments false promises
Murphy admitted that he talked to Pace on August 24
He recalled that the August 24 conversation was termi
nated by Pace when Pace recalled that he had riders
waiting On the following date Pace appeared at Mur
phy s office and continued their conversation
C September 1983
(1) Alvin Jerome Pace testified that in early September
1983 his foreman Chris Conway approached him and
said that he had heard I was running around
passing out union cards I told him quite a few
people had been telling me that—him and Murphy
Those are the only two names that I mentioned
I asked him who told him and he didn t reply
That was it
(2) Current employee Mack Foreman testified to a
conversation he had with Warehouse Manager William
Coleman 2 at the plant in September 1983 Coleman said
to Foreman I heard you ve been passing out Christmas
cards When Foreman asked what Coleman meant
Coleman said I heard you have been passing out union
cards Later Coleman said Somebody as tight as you
I thought you wouldn t be messing around with that
Foreman asked but Coleman refused to identify how he
had learned of Foreman s activity
(3) Current employee Jerome Morgan recalled a mid
September 1983 conversation with Foreman Chris
Conway about the Union at the plant in the presence of
two other employees Robert Smith and Jesse Austin
2 During the summer and fall 1983 Coleman was the metal fabrica
tions manager for Respondent
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said Hey Jerome I heard you signed a
union card And I told him he was a lie and any
body that said I did was a lie
And we went on with the conversation and he
told me he had this brother that worked at this
place Uniroyal or something that threw a can in a
machine and tore the machine up and the union
didn t help him
And the break was ending and we got up and got
ready to leave and he said I heard Mack Foreman
was dealing union cards on one side and Alvin Pace
was dealing union cards on this side So I went
back to work
Chris Conway denied that he had the above conversa
lion with Jerome Morgan
(4) Warehouse Manager William Coleman admitted
that he approached employee James Harris in mid Sep
tember 1983 and told Harris that he did not have to
answer but that he had heard something that bothered
him and wanted to ask about it Coleman then told
Harris that he heard that Harris was passing out union
cards
D October 1983
On October 7 1983 a letter of reprimand was pre
pared on Alvin Jerome Pace The letter read
On Wednesday afternoon October 5 1983 Frank
Pokorny and William Coleman observed you put
tmg hot welded parts in a bin causing the welding
booth curtain to become damaged You were in
structed at that time not to put any more parts in
the bin because of the damage you were doing to
the welding booth curtain
Five minutes later I arrived at your welding sta
tion and you were still putting hot welded parts in
the same container This kind of negligence i e de
struction of Company property and willfully failing
to follow instructions of your superiors will not be
tolerated
Let me caution you that any such future action
of this nature on your part will result in further dis
ciplinary action
William Coleman who was subsequently corroborated
by Plant Manager Frank Pokorny testified regarding the
incident with Pace Coleman and Pokorny were making
rounds when Coleman noticed that Pace was throwing
fresh welded parts against his welding curtain causing
the curtain to burn Coleman testified that he directed
Pace to stop However when he subsequently observed
that Pace was continuing the same activity and burning
the curtain he directed Foreman Conway to write up
Pace
E November 1983
On November 11 1983 James Washington was sus
pended from work for 3 days Respondent alleges that
Washington was suspended because of his improper and
intimidating actions toward [employees Sylvia Brown
and Barbara Moore] regarding this union matter [See
November 14 1983 memo from Mike Murphy GC
Exh 5] The General Counsel alleges that Respondent
violated Section 8(a)(1) by suspending Washington
Sylvia Brown s testimony regarding the alleged intim
dating actions against her are as follows
Well I had stopped at a store after leaving work
which is about a mile and a half to two miles down
the road from work I had stopped there to get a
drink on the way home And James Washington
was there
He walked over to me after I started going back
to my truck and asked me if I knowed him or rec
ognized him and I told him yes I did
He said well a lot of people didn t without his
scarf that he worked the same place I did I told
him yes I did recognize him
He proceeded to stand between me and my
truck perched on my truck and went ahead to talk
and tell me about this organization He told me
about the cards and asked me if I wanted to join or
if I needed any help he would see that I got it
He went ahead and proceeded to talk about it
and I told him I wasn t interested in it that I had a
long way to go and I needed to get home
So he still kept on talking to me and finally I
had to tell him more than one time that I still had
to go that I was not interested in It
Well so he moved away from the door so that I
could shut the door and leave
After then he come over on my job two differ
ent times One time he didn t say anything he just
stood there and looked at me
Another time he told me I was working too fast
To slow down I was working too fast
Employee Barbara Moore testified that she was ap
proached by Washington in the parking lot at approxi
mately 11 05 pm on November 8 1983
Well I was walking out to the parking lot and he
asked me did I go to a meeting And I said no And
he said Did they have a meeting today? And I
said no
I said I don t know what you re talking about
And then he said They had a meeting today be
cause somebody asked did they have a union card
Said Was anybody surprised?
I said I don t know what you re talking about
He said People talk a lot get hurt kids get
hurt L...
Sylvia Brown s testimony is uncontested However
James Washington denied first to Respondent before his
suspension and subsequently during this hearing that he
either talked with or threatened Barbara Moore on No
vember 8 1983 in the parking lot
The timecards of Washington and Moore for Novem
ber 8 1983 show that Washington clocked in for work
in the plant at 10 58 p m and that Moore clocked out at
11 01 p m The parking lot is outside the plant past a
guard post
DIVERSIFIED PRODUCTS 1073
F December 1983
(1) According to James Washington s unrebutted testi
mony during December he spoke about the Union to
large groups of employees in the breakroom in the pres
ence of supervisors
A Yes On my first occasion I was in the break
room—it was around the first part of December—so
I stood up within the crowd and I introduced
myself to the crowd and then I explained to them I
told them my purpose that I was working for the
URW and I was asking their aid in soliciting a
union within the plant
Q Approximately how many employees were
present?
A Approximately 40 or 50 or maybe more
Q Do you recall which supervisor or supervisors
were present?
A Not by name but I would recognize their
faces One of the third shift supervisors that worked
back on one of the packing lines I don t know his
name
(2) Again according to unrebutted testimony by James
Washington on December 16 he was interrupted in his
efforts to pass an envelope containing some money to an
employee in department 110 by Supervisor Bobby Smith
and Chris Conway On that occasion Smith told Wash
ington that he could not be in the building earlier than
15 minutes before his shift nor later than 15 minutes after
his shift
Subsequently on December 22 Bobby Smith told
Washington that he had been observed in the breakroom
talking with two ladies 17 minutes after his shift ended
Smith emphasized that he wanted Washington out of
the plant in 15 minutes Washington pointed out to
Smith that other employees were in the plant as much as
an hour or an hour and a half before and after their
shifts Smith responded that he would check into the
matter
The General Counsel alleged in an amendment to
complaint paragraph 7(a) that Respondent violated Sec
tion 8(a)(1) by changing its rules to restrict the time that
could be spent at the plant by James Washington
(3) During Respondent s Christmas party Washington
made another address to the employees Employees at
that party included employees in departments 110 and
112 and Supervisors Rusty McDonald Bobby Smith and
Chip Star Washington testified regarding that party
I went up in front of the crowd while everybody
was eating I introduced myself Most of the people
knew me but perhaps there were some of the new
't people that didn t know my name I introduced
myself I told them that my reason was I was work
ing for the URW and I would like to ask them to
sign a union card or if they wanted to talk to me
about the union I would be more than pleased to
talk to them at any time they was available Or if
they wanted to sign a union card at the present time
to let me know and I d be glad to serve them
G January 1984
(1) On January 2 1984 according to Foreman Rusty
McDonald there was a change in the policy of permit
ting employees to work overtime Before that time em
ployees worked extensive overtime Afterward overtime
was to be restricted unless scheduled
(2) At a meeting on January 3 or 4 1984 James Wash
ington questioned first Director of Personnel Mike
Murphy then Respondent s president Cal James Wash
ington asked Murphy why the employees were not com
pensated because they were advertising for Respondent
when they wore their DP jackets Later he made a
statement during a speech by Cal James about the inabil
ity of black employees to improve their lot even though
the Company was growing James threatened to close
the meeting and another employee made a statement in
support of the Company
(3) Alvin Pace testified that he had a conversation
with Foreman Chris Conway about the Union in mid
January 1984 at his welding station
I can t recall how the conversation exactly start
ed but at the time he brought it to my attention he
had relatives working at Uniroyal and that they
cursed the union every day Uniroyal has the same
union that we were trying to get in DP
I replied I said—we call him boss So I said
Come on Boss the kind of money they re making
and the benefits that s just not understandable He
tried to compare the workload that they did at Un
'royal with the forklift job they had and picking up
the loads with the forklift job at DP
I told him that I felt our forklift jobs were quail
fled to do whatever job they had to do if they give
them the right materials Basically that was it
(4) The January discharge of James Washington A bi
zarre occurrence during the week ending January 21
1984 allegedly caused James Washington s discharge
According to Washington after hearing from his fore
man that he would be off during that week on Friday
January 20 Washington asked another foreman William
Fuller if he could work a few hours on Fuller s Satur
day overtime shift
There is no factual dispute regarding Washington
asking Fuller if he could work overtime There is a dis
pute regarding Fuller s response to Washington s request
According to Washington Fuller at first said that he
did not know if he had any work for Washington Wash
ington then said it did not matter what he did that he
would like to work Fuller told Washington that Fuller
would not be in on Saturday Fuller called over his lead
man Greg Zachery and asked Zachery if he would be
in on Saturday Zachery replied that he would be in all
Saturday night Washington then commented that he
would come in on Saturday between 5 and 6
There is no dispute regarding the actual overtime
work Washington came in around 6 p m 3 and was as
a The shift started at 3 p m
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed work by leadman Greg Zachery Washington
worked until approximately 11 p m
The sole dispute involves Fuller s response to Wash
ington s request to work overtime According to Fore
man Fuller he told Washington that he couldn t author
ize [Washington) to work any overtime Washington
asked again and Fuller replied that he could not author
ize Washington to work overtime and that he did not
have any work for Washington As Washington started
to leave he commented that he would see Fuller the next
day Fuller testified that he replied No I won t be
here
Greg Zachery testified that he overheard Fuller telling
Washington that Fuller would not be in tomorrow
Washington was questioned about working on January
21 and he told his foreman Rusty McDonald that Fuller
had authorized the overtime When confronted with
Fuller s denial that the overtime was authorized Wash
ington said that he assumed from their conversation that
Fuller was authorizing the overtime
Washington was suspended on January 24 and subse
quently discharged for your violation of company
policy on January 20 1984 and falsification of the rea
sons for such
II February 1984
Alvin Pace testified that Foreman Chris Conway
called a meeting of all 25 or 30 employees in the depart
ment around the last of February
A Oh he called a meeting He told us what a
good job we were doing and the sacrifices we were
making Basically he was discussing how we was
working and they were content with our working
conditions
And then all of a sudden he made the same state
ment No he made this statement that someone
told him he was outside trying to get union cards
signed Somebody was outside passing out union
cards
He said I want ya 11 to know if you sign these
cards you sign everything over to these people
And he said he had retired from an unorganized
job which is the Army and said if the Army would
get a union there would be complete chaos He said
DP is run sort of like the Army is run
And then he brought up the fact about his rela
tives working at Uniroyal again As a matter of
fact he made the same statement he had made to
me earlier He made it to me as far as his relatives
working at Uniroyal and how they talked against
the union every day
I said Personally Boss I feel that a union
would help this place
He said That s your opinion
I said Right
He said Everybody have their opinion
I said Right
By that time the meeting was over because it was
time to go so we went on
Conclusions
A The 8(a)(3) allegations
1 Respondent issued a written warning to Alvin
Pace on October 7 1983
In view of the entire record I have determined that
the facts outlined in Pace s letter of reprimand (quoted
above) are correct Although Pace s testimony was
somewhat different he did not deny that Coleman first
cautioned him about burning welding curtains
Even though the record supports the General Coun
sel s contention that employees frequently burned weld
ing curtains and were not disciplined there was no evi
dence that employees are permitted to continue burning
curtains after being specifically instructed to stop The
evidence demonstrates without rebuttal that Pace con
tinued to burn his curtain after being directed to stop by
Coleman
Coleman s instructions to Pace were not shown to be
either unreasonable or motivated by union animus Nor
was it shown that Coleman by giving those instructions
was treating Pace in a disparate manner
The Act does not prohibit discipline when as here an
employee ignores a supervisor s directive Therefore I
find that Respondent did not violate the Act by repri
manding Alvin Pace on October 7
2 James Washington
a The November suspension
Washington was suspended on November 11 1983 al
legedly because of his activity in soliciting two employ
ees to sign union authorization cards The standard re
cently enunciated by the Board in determining whether
alleged misconduct involving protected activity is suffi
ciently serious to justify disciplinary action is whether
the activity is such that under the circumstances exist
ing it may reasonably tend to coerce or intimidate em
ployees (Clear Pine Moulding 268 NLRB 1044 (1984) )
In regard to the complaint of employee Sylvia Brown
there appears to be no factual dispute Therefore the
Clear Pine standard should apply to that incident
Brown s testimony reveals that on one occasion James
Washington met her away from the plant and attempted
to persuade her to sign a union card Although Brown
testified that Washington stood between her and her ye
hide there was no indication that Washington ever did
anything to prevent her leaving other than to continue
talking about the Union Subsequentl Washington on
one occasion near Brown s work station stared at
Brown Although Brown testified differently at the hear
ing in her investigative affidavit she stated that Wash
ington stared at her for some 3 seconds On another oc
casion Washington commented to Brown that she should
slow down that she was working too fast
None of the above incidents demonstrates coercive ac
tivity The incident at Brown s vehicle involved nothing
more than Washington soliciting her to sign a union
card Both incidents in the plant involved matters which
are commonplace Only through conjecture could I find
DIVERSIFIED PRODUCTS 1075
that either of those incidents would reasonably tend to
coerce or intimidate an employee I find nothing unusual
or coercive in either incident The reference to working
too fast involves a comment sometimes used in greeting
someone and without more cannot be considered coer
dive or intimidating Respondent in its brief argues that
Washington s comments evidence an effort to slow down
production I reject that argument on two grounds (1)
Washington was not disciplined for trying to slow down
production His suspension notice shows that his disci
pline was caused by his intimidating actions and (2)
Washington s statement to Brown standing alone does
not evidence an effort to slow down production Wash
ington said nothing which would cause any reasonable
person to believe that he seriously intended a slowdown
No sanctions were mentioned and there was no followup
to determine if Brown slowed her work The other inci
dent staring at Brown for a few seconds could hardly
be found coercive
Therefore I find that Respondent was not justified in
suspending Washington because of his activities which
resulted in Sylvia Brown s complaint to Respondent
As to the matters involving Barbara Moore there is a
clear factual dispute In cases where the alleged protect
ed activity on which an employer bases its contention of
misconduct is in dispute the test to apply is the one
enunciated by the Supreme Court in NLRB v Burn up &
Suns 379 U S 21 (1964) The Court in Burnup & Sims
held nat an employee may not be disciplined for engag
ing in protected activity unless the employer reasonably
or honestly believed that the employee engaged in mis
conduct and the record failed to prove that the employ
ee did not actually engage in the alleged misconduct (see
also Rubin Bros Footwear 99 NLRB 610 (1952))
With the above standard in mind I shall first examine
the instant record to determine what information Re
spondent used in allegedly determining that Washington
threatened Barbara Moore on November 8 1983
As demonstrated by Moore s testimony she corn
plained to Respondent that Washington questioned her
about a meeting while in Respondent s parking lot
around 11 05 p m on November 8 At the conclusion of
the discussion according to Moore Washington corn
mented that people that talk get hurt and children get
hurt too
I find that the above statement would if credited
demonstrate activity sufficiently serious to warrant disci
pline under the Clear Pine standard However the facts
which were available to Respondent before it disciplined
Washington cause me to question (1) whether Respond
ent reasonably believed that Washington had actually
threatened Moore and (2) whether the facts developed
in the record proved that Washington did not engage in
the alleged misconduct
The record is not in dispute as to the following
(1) The timecards of Washington and Moore for No
vember 8 which Respondent admittedly examined
before suspending Washington demonstrated that Wash
ington clocked into the plant before 11 p m on Novem
ber 8 At that time Moore was still at work Moore did
not clock out until approximately 11 01 p m
(2) Respondent s interviews with the gate guard re
vealed that no unusual events were observed by the
guards and that no unusual reports were received from
anyone including guards and employees on the night of
November 8
(3) Washington denied the allegations made by Bar
bara Moore
(4) In order to have been in the parking lot at 11 05
Washington would have had to leave the plant and walk
past the gate guard after having clocked in and he
would have had to return past the guard and reenter the
plant after 11 05
(5) Washington testified without rebuttal that he iden
tified to Respondent one employee (Lottie Hutchinson)
that was in his presence at the critical times after he
clocked in on November 8 Respondent did not show
that it interviewed that employee before disciplining
Washington
(6) Respondent uncovered no evidence other than the
statement by Barbara Moore that Washington left the
plant after clocking in on November 8
In consideration of the above evidence I am con
vinced and find that Respondent did not honestly believe
that James Washington threatened Barbara Moore on
November 8 Moreover on the basis of my observation
of the demeanor of Barbara Moore and James Washing
ton during the instant hearing I am convinced and find
that Washington s testimony that he was not in the park
ing lot at 11 05 and did not threaten Barbara Moore
must be credited I find that Respondent was not justi
fled in disciplining Washington because he allegedly en
gaged in misconduct while questioning employee Bar
bara Moore regarding union or antiunion activities
1 b Washington s final suspension and discharge
(1) Discussion
Initially a determination must be made as to credibil
ity regarding the January 20 conversation between James
Washington and William Fuller I have considered the
demeanor of Washington and Fuller along with other
factors contained in the record in making my determina
tion Washington demonstrated through his demeanor
and testimony that he was confused by the turn of
events Both his testimony and that of Rusty McDonald
illustrates that after first stating that Fuller authorized
the overtime Washington after being confronted with
Fuller s assertion that he had not authorized the over
time backed away from his original statement by stating
that he had assumed that Fuller had authorized the over
time
Washington s reaction is precisely what one would
expect if his version of the facts is correct According to
his testimony Fuller first said that he did not know if he
had work for Washington Subsequently Fuller said that
he would not be there on Saturday but he then called
over his leadman and asked if leadman Greg Zachery
would be there the following evening That action by
Fuller gives the obvious impression that Fuller was
agreeing to permit Washington to work
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fuller on the other hand presented a confident de B The 8(a)(I) allegations
meanor and he testified that he stated without equivoca
tion that he could not authorize overtime and that he 1 Respondent by its supervisors Chris Conway
had no work for Washington I find that testimony is not Bill Coleman and Mike Murphy engaged in illegal
believable Obviously Washington s comment that he interrogation
would see Fuller the next day which Fuller then recalls In Rossmore House 269 NLRB 1176 (1984) the Board
Washington making would be nonsense Why would ruled that in consideration of the totality of the circum
Washington indicate his plan to come to work despite a stances interrogation of employees regarding their union
strong unambiguous declaration that he could not work activities will be found violative where the interrogation
Moreover Fuller s admission which was corroborated reasonably tends to restrain coerce or interfere with
by Greg Zachery that he then told Washington No I rights guaranteed by the Act In that case interrogation
won t be here is illogical in the context recalled by was found to be not violative where the employee ques
Fuller A comment by any employee to the effect that he boned was a known union organizer
was going to report for work despite an instant declara
tion from a supervisor that he could not work would a Mike Murphy
invoke a response of a different sort As shown above Mike Murphy questioned Alvin Pace
Therefore I am convinced and find that Washington on August 24 1983 regarding Pace passing out union
testified truthfully as to the January 20 incident

cards The record shows that Alvin Pace was a known
union organizer The testimony of Pace Murphy and
2 Finding Jerome Morgan (see above) all show that Pace s role
The General Counsel proved that in previous inci was well known In that regard the instant situation is
dents involving unauthorized overtime employees re similar to that in Rossmore House supra On the basis of
that decision I find that the evidence does not support aceived nothing more than written warnings and then
only in instances of unauthorized overtime following pre finding of a violation as to Mike Murphy s interrogationof Alvin Pacevious counseling on the subject On January 21 1983
employee Henry Johnson received a warning which re b Chris Conway
fleeted that he had accumulated unauthorized overtime
after being previously counseled about that practice on Alvin Pace testified that he was questioned by
December 18 1982 Conway about passing out union cards in early Septem
George Holoey was warned on January 21 1983 for ber 1983 (above) Jerome Morgan who like Pace is cur
accumulating unauthorized overtime Holoey had been rently employed by Respondent testified that Conway
counseled concerning unauthorized overtime on Decem told him in mid September 1983 that he had heard that
ber 20 1982 Morgan had signed a union card ( see above)
Farrell Wright was warned on February 7 1983 for Conway did not respond to the allegations of AlvinPace He denied the testimony of Morgan Howeveraccumulating unauthorized overtime after prior discus Conway admitted that he did make statements to groupsmons on the same subject of employees that people were passing out union cardsJames Washington was not afforded the opportunity of I was Impressed with Jerome Morgan s demeanor Heprior counseling and his disciplinary action was more was specific in his testimony regarding Conway Morgan
severe than that awarded other employees I find that recalled two other witnesses to that conversation I am
the General Counsel proved that Washington was treat convinced that Morgan was testifying truthfully
ed in a discriminatory fashion As to the interrogation of Pace that incident is gov
As shown above James Washington was a visible erned by the Rossmore House decision in view of Pace s
union advocate In December the month before his dis role as a known union organizer
charge he openly addressed large groups of employees However Jerome Morgan was not a known union or
in the breakroom about the Union At the Christmas gamer Moreover he strongly denied Conway s asser
party he again addressed employees Both of those occa non that he heard Morgan had signed a union card I
mons occurred in the presence of supervisors Subse find that Conway s comments regarding his learning that
quently a few weeks before his discharge Washington Morgan had signed a card and that he had heard that
spoke out against what he considered were adverse con Mack Foreman and Alvin Pace were passing out union
ditions for the employees during an address by Respond cards would tend to reasonably coerce employees union
ent s president During that period of time before Wash activities and therefore illustrates a violation of Section
ington s discharge Respondent through its supervisors 8(a)(1)
as shown above was demonstrating its strong opposition
to the Union c Bill Coleman
Against that background and in consideration of my The record demonstrated that Coleman questioned em
determination that Washington was treated with dispari ployees Mack Foreman and James Harris on two occa
ty I find that Washington was discharged because of his mons in September 1983 about rumors that Foreman and
union activities and protected activities in violation of Harris were passing out union cards (see above) Al
Section 8(a)(1) and (3) of the Act though there was evidence of a rumor that Foreman was
DIVERSIFIED PRODUCTS 1077
passing out cards the record did not show that either
Foreman or Harris was a known union organizer There
fore I find that the Rossinore House decision does not
preclude my finding a violation as to either of the above
mentioned incidents Moreover although Coleman told
Harris that Harris did not have to answer his questions
that interrogation did not fall within the scope of interro
gations permitted under certain conditions (see e g
Johnnie s Poultry Co 146 NLRB 770 (1964)) Here at
the time of Coleman s interrogation of Harris there was
not a question of determining whether the Union had a
majority nor was there any basis for Respondent to pre
pare a defense to unfair labor practice allegations The
first unfair labor practice charge was filed the following
month October 1983
Foreman questioned Coleman s assertion by asking
where Coleman had heard that Foreman was passing out
cards
Under the total circumstances including the other in
cidents established on the record herein I find that Cole
man s interrogation of Foreman and Harris had the tend
ency to coerce and intimidate employees in the exercise
of their protected rights
2 Respondent by Mike Murphy created the
impression of surveillance of its employees union
activities
As shown above Mike Murphy told known union or
ganizer Alvin Pace on August 24 1983 that he knew
that Pace was passing out union cards Obviously such a
statement demonstrates to employees that at least to a
degree Respondent is aware of their union activities
However the law is established that where the union ac
tivities of the particular employee involved are well
known a comment to that effect does not violate the
Act (Hechson Mfg Co 249 NLRB 791 (1980) Durango
Boot 247 NLRB 361 (1980)) I find that Respondent did
not violate Section 8(a)(1) by Mike Murphy telling Pace
that he knew Pace was passing out union cards Pace ad
mitted that he could not deny Murphy s statement be
cause it was true Moreover under the circumstances
the conversation which Pace recalled but which was
denied by Murphy that Murphy had ways to find out
what was going on in the plant lends little to the alle
gation In fact Pace on his own accord returned to
Murphy s office the next day to resume their conversa
tion
3 Respondent by Supervisor Bobby Smith
established and enforced a rule limiting the time an
employee could be in the plant before and after his
assigned work shift
As shown above James Washington was directed by
Supervisor Smith on December 16 and 22 1984 that he
was not permitted in the building more than 15 minutes
before or after his assigned work shift
Washington like Alvin Pace was a well known union
organizer and December 16 and 22 fell during the time
frame of Washington s most vigorous union activities
Respondent does not dispute the above mentioned evi
dence However Respondent points out in its brief that
pages 23 26 and 51 of the employee s handbook (G C
Exh 7(a)) show that Smith s directions were in accord
with established policy
The material provision of the above cited handbook
read as follows
While you are allowed as a convenience to you
to enter the plant before the time your work sched
ule starts DP employees shall not clock in more
than fifteen (15) minutes ( 25 or 25/100 of an hour)
before their scheduled starting time or clock out
more than fifteen (15) minutes ( 25 or 25/100 of an
hour) after the scheduled work period is completed
This time shall not be considered time worked and
therefore no payment for this time will be made
[Id at p 23]
The following rule violations will be cause for
disciplinary action which may include discharge de
pending upon the offense
Failure to obtain permission before entering plant
after scheduled working hours [Id at p 26 ]
All employees and visitors are required to obtain
authorization from the responsible manager to enter
plant property after their normal scheduled working
hours and must sign the register at the guard house
or in the main lobby [Id at p 511
The above provisions appear to support the General
Counsel The provision at page 23 states that employees
are allowed to enter the plant before their shift with the
mandate that they must not clock in or out more than 15
minutes before or after their shift The provisions at
pages 26 and 51 do not specify any time requirements
Additionally James Washington pointed out to Super
visor Smith that the rule was being applied disparately
since other employees were routinely permitted to be in
the plant an hour or and hour and a half before and after
their shifts
In consideration of the above and the entire record I
agree with the General Counsel Respondent through
Bobby Smith instituted and enforced a new rule during
the union organizing activity against union organizer
James Washington in order to limit Washington s time in
the plant
ADDITIONAL CONCLUSIONS OF LAW
1 Respondent by interrogating its employees about
their union activities and by establishing and enforcing a
new rule to prohibit an employee advocate for the Union
from being in the plant more than 15 minutes before or
after that employee s assigned work period has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act
2 By suspending and discharging its employee James
Washington and thereafter failing and refusing to rein
state Washington Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices I shall recommend it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
As I have found that Respondent unlawfully suspend
ed and discharged employee James Washington I shall
recommend that Respondent be ordered to expunge all
reference to that action from its records and that it be
ordered to offer Washington immediate and full rein
statement to his former job or if that job no longer
exists to a substantially equivalent position without prej
udice to his seniority or other rights and privileges I
shall further recommend that Respondent be ordered to
make Washington whole for any loss of earnings he may
have suffered as a result of the discrimination against
him Backpay may be computed with interest as de
scribed in F W Woolworth Co 90 NLRB 289 (1950)
and Florida Steel Corp 231 NLRB 651 (1977) 4
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed 5
ORDER
The Respondent Diversified Products Opelika Ala
bama its officers agents successors and assigns shall
1 Cease and desist from
(a) Interfering with restraining and coercing its em
ployees in the exercise of rights guaranteed them in Sec
tion 7 of the Act in violation of Section 8(a)(1) of the
Act by interrogating its employees about their union ac
twines and by establishing and enforcing a new rule to
prohibit an employee advocate for the union from being
in the plant more than 15 minutes before or after that
employee s assigned work period
(b) Suspending and discharging and thereafter refusing
to reinstate its employee because of its employees union
activities
(c) In any like or related manner interfering with re
straining or coercing its employees in the exercise of
nghts guaranteed them by Section 7 of the Act
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act
(a) Offer James Washington immediate and full rein
statement to his former job or if that job no longer
exists to a substantially equivalent position without prej
udice to his seniority or other rights and privileges previ
ously enjoyed
(b) Make James Washington whole for any loss of
earnings and other benefits suffered as a result of the dis
cnmination against him in the manner set forth in the
remedy section of this decision
(c) Expunge from his file any reference to the suspen
sion and discharge of Washington and notify James
Washington in writing that this has been done and that
See generally Isis Plumbing Co 138 NLRB 716 (1962)
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
the evidence of his unlawful suspension and discharge
will not be used as a basis for future personnel action
against him
(d) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its facility in Opelika Alabama copies of
the attached notice marked Appendix 6 Copies of the
notice on forms provided by the Regional Director for
Region 10 after being signed by the Respondent s au
thonzed 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
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
6 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT interrogate our employees about their
activities on behalf of the United Rubber Cork Linole
um & Plastic Workers of America AFL-CIO or any
other labor organization
WE WILL NOT establish or enforce new rules to pro
hibit employee union advocates from being in the plant
more than 15 minutes before or after that employee s as
signed work period
WE WILL NOT suspend or discharge our employees be
cause they engage in union or other protected activity
WE WILL NOT in any like or related manner interfere
with restrain or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act
WE WILL offer immediate and full reinstatement to
James Washington to his former job or if that position
no longer exists to a substantially equivalent position
without prejudice to his seniority or other rights and
privileges
i
DIVERSIFIED PRODUCTS 1079

WE WILL make James Washington whole for any loss WE WILL notify him in writing of our action in that

of earnings he may have suffered by reason of our dis regard
crimination against him

WE WILL expunge from our records any reference to DIVERSIFIED PRODUCTS
our suspension and discharge of James Washington and