Earle Industries

National Labor Relations Board - Board Decisions

Oct 21, 1994

315 N.L.R.B. 310 (N.L.R.B. 1994)

310
315 NLRB No. 45
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In adopting the judge’s discrediting of discriminatee Earley Mae
Wallace, however, we find it unnecessary to rely on the judge’s dis-
cussion of Wallace’s testimony at a prior hearing concerning objec-
tions filed by the Respondent to an election held on March 8, 1991.
Although the hearing officer in that case did not credit Wallace’s
testimony in certain critical respects, there was no finding in that
case that Wallace deliberately made false statements. Moreover, we
note that even if such a finding had been made, it would not be de-
terminative of Wallace’s credibility in the instant case. Adams Deliv-
ery Service, 237 NLRB 1411, 1418 (1978), enfd. 623 F.2d 96 (9th
Cir. 1980).
2 Unless otherwise noted, all dates hereafter are in 1991.
3 Specifically, the Board found that the Union had engaged in ob-
jectionable conduct by its agents having videotaped employees. In
this regard, the Board adopted the hearing officer’s finding that Wal-
lace’s testimony that union officials had told employees at a meeting
that the film crew was an independent film crew working on a docu-
mentary was not credible. In making this credibility determination,
the hearing officer stated that Wallace had admitted that she had not
heard everything the union official said about the film crew at the
meeting, and that her testimony was ‘‘evasive and argumentative,’’
‘‘responsive to what she perceived most advantageous to Petitioner’s
case rather than genuinely factual,’’ and not ‘‘forthright or sponta-
neous.’’ Earle Industries, Case 26–RC–7346 (Aug. 28, 1991) (un-
published decision).
4 See Earle Industries, Case 26–RC–7346 (June 4, 1992) (unpub-
lished decision). The Board’s certification was subsequently upheld
by the United States Court of Appeals for the Eighth Circuit. See
NLRB v. Earle Industries, 999 F.2d 1268 (1993), enfg. 308 NLRB
No. 134 (Sept. 23, 1992) (unpublished summary judgment ordering
Respondent to bargain with Union).
Earle Industries, Inc. and Amalgamated Clothing
and Textile Workers Union, Southwest Re-
gional Joint Board. Cases 26–CA–14700 and
26–CA–14759
October 21, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS DEVANEY
AND COHEN
On March 17, 1993, Administrative Law Judge John
H. West issued the attached decision. The General
Counsel and the Charging Party have filed exceptions
and supporting briefs, and the Respondent has filed an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and
Order.
Background
Earle Industries is an employer engaged in the man-
ufacture of closet accessories in Earle, Arkansas. The
Union began an organizing campaign among the Re-
spondent’s employees in January 1991.2 Pursuant to a
petition filed by the Union on January 27, a secret bal-
lot election was held among the Respondent’s employ-
ees on March 8. Although the Union received a major-
ity of the ballots cast, the results of that election were
set aside by the Board based on objections filed by the
Respondent and a second election was directed.3 The
second election was held on October 25. The Union
again received a majority of the ballots cast and subse-
quently was certified by the Board as the representa-
tive of the Respondent’s employees.4
On October 1, the Union sponsored a rally at the
Respondent’s premises in support of its organizing
campaign. The rally began at approximately 11:30
a.m., during the employees’ lunch period, when some
employees began distributing union buttons to other
employees in the Respondent’s parking lot. Shortly
thereafter, the Reverend Jesse Jackson, accompanied
by union representatives and members of the media,
arrived at the entrance to the parking lot. A few min-
utes later, a union representative drove a large flat bed
truck into the parking lot. Reverend Jackson climbed
onto the trailer bed and began speaking to the assem-
bled employees about the benefits of organization.
At the Respondent’s request, the Earle police
stopped the rally by driving the truck—with Reverend
Jackson and others still on it—out of the parking lot.
The Earle police also arrested two union representa-
tives, handcuffed them, and placed them in a police
car. Reverend Jackson subsequently saw the two union
officials in the police car and told them that he would
try to see the Respondent’s owner and get them re-
leased. A videotape of this event, taken by a local tele-
vision station and introduced as an exhibit in this case,
shows Jackson reentering the parking lot and walking
toward the plant’s employee entrance. As he does so,
employee Blanche Bowers can be seen making encour-
aging gestures. Jackson then entered the plant through
the employee entrance, together with a number of
other individuals and the media. Just after Jackson
passed through the door, Wallace entered the door,
passed Jackson, and began walking in front of him
down an aisleway leading toward the plant’s front of-
fice.
Jackson was intercepted almost immediately by Per-
sonnel Manager Gary Smith, who informed Jackson
that he was trespassing and repeatedly asked him to
leave the plant through the employee entrance and re-
enter through the front entrance, which was designated
for visitors.
During the course of this discussion between Smith
and Jackson, employee Earley Mae Wallace inter-
311EARLE INDUSTRIES
5 See Earle Industries, 999 F.2d at 1270.
6 The Respondent obtained affidavits from a number of individuals
on October 1 describing the Jackson incident that day, which were
used in support of an unfair labor practice charge filed by the Re-
spondent against the Union. However, the Respondent concedes that
none of these affidavits indicate that Wallace engaged in insubordi-
nate conduct on October 1. The unfair labor practice charge filed by
the Respondent was dismissed by the Regional Director for Region
26.
7 Specifically, Wallace stated that: (1) she never told Reverend
Jackson that the front door was locked; (2) she did not motion to
or encourage Jackson to enter the plant’s front office; and (3) she
did not show Jackson and others the way to the front office while
they were inside the plant. The Respondent tape-recorded the inter-
view with Wallace and a transcript of that recording is attached to
the judge’s decision in this case.
8 On October 8, the Respondent interviewed employees Frances
Jones and Maggie Lucas, who provided affidavits concerning their
observations of the October 1 incident. These affidavits, like the vid-
eotape, indicate that Wallace motioned for Jackson to continue mov-
ing toward the front office during his encounter with Smith.
9 The statements taken by the Respondent also generally reflect
that many employees were enthusiastically encouraging Reverend
Jackson to continue to the front office before, during, and after his
encounter with Smith.
jected, ‘‘Front door locked. C’mon.’’ and ‘‘office this
way,’’ pointing in the direction of the front office.
Smith responded, ‘‘[N]o ma’am,’’ to Wallace and re-
peated his instructions to Jackson that he leave the
plant. Wallace repeated the statement that the door was
locked and subsequently pointed in the direction of the
front office and stated, ‘‘[R]ight over there.’’ Other
employees also can be seen on the videotape pointing
towards the front office and cheering for Jackson.
Jackson did not leave, but, instead, requested that
Smith accompany him out of the plant and back
through the front entrance. Smith refused to do so,
eventually announced that he would not argue with
Jackson further, turned around, and walked back to the
front office with Jackson behind him. Subsequently,
after discussing the matter with the Earle police, Jack-
son left the plant through a side entrance, re-entered
through the front door, and met with Senior Vice
President Peter Felsenthal. The entire incident de-
scribed above, from Jackson’s entry into the plant to
the time he entered the foyer to the front office, took
less than 2 minutes.5
The Respondent took no immediate action against
any employee in connection with the October 1 inci-
dent and declined to press charges against either Jack-
son or the union representatives whom the police had
previously arrested. However, later that day, Felsenthal
and Smith met to discuss the incident. Smith told
Felsenthal that Wallace had undermined his authority
in the presence of other employees by interfering with
his efforts to make Jackson leave the plant, and that
severe disciplinary action was warranted. Felsenthal
testified that he instructed Smith to investigate the in-
cident before any discipline was imposed.6
The next step in the investigation was the Respond-
ent’s receipt, on October 5, of a videotape of the Octo-
ber 1 incident taken by a local television station.
Felsenthal reviewed the videotape, in the company of
the Respondent’s attorney, on October 6. Based on his
review of the tape and on further discussions with
Smith that night, Felsenthal determined that termi-
nation was warranted under the circumstances, al-
though he testified that he had not reached a final deci-
sion at that time.
On October 7, Smith interviewed employees Joe
Blockmon, Michelle Smith, and Debbie Evett—indi-
viduals whom he identified from the videotape as hav-
ing been in the background during the October 1 inci-
dent. However, Smith testified that none of these indi-
viduals provided any additional information concerning
the incident. Later on October 7, Felsenthal, Smith,
and Supervisor Louise Eskridge met with Wallace to
question her concerning her actions. Initially, Wallace
refused to answer the questions put to her by
Felsenthal, stating that she wanted to protect herself
and did not understand why Felsenthal was questioning
her. Felsenthal then told her that her failure to cooper-
ate in the investigation was itself a violation of the Re-
spondent’s policies and reiterated the questions he had
previously posed. Thereafter, Wallace responded to
Felsenthal’s questions and denied any wrongdoing. In
the course of her responses, Wallace denied engaging
in certain conduct which she is shown to have engaged
in in the videotape; at the hearing in this case Wallace
acknowledged that her answers to those questions were
untrue.7 At the conclusion of the interview, the Re-
spondent advised Wallace that she was suspended for
violation of plant rules and the following day, October
8, Wallace was terminated.8
Over the course of the following 2 weeks, the Re-
spondent took statements from other employees con-
cerning the Jackson incident. In this regard, employee
Van Welch’s statement identifies employees Marilyn
Mathis and Linda Davis as individuals who also point-
ed Jackson to the office door. Davis was never inter-
viewed, counseled, or disciplined by the Respondent.
While Mathis was interviewed by Smith, there is no
evidence that he asked her if she had pointed toward
the front office, and she was not counseled or dis-
ciplined. Further, Smith told Mathis that he would not
ask her to identify other employees who were involved
in the incident (to which Mathis replied that she would
not tell him anyway) and accepted without comment
her refusal to state what she had heard of Smith’s con-
versation with Jackson. On October 17, employee Cas-
sandra Riley gave a statement in which she indicated
that Wallace guided and directed Jackson to the em-
ployee entrance and turned him away from the visitor’s
entrance towards which he was facing when Wallace
grabbed his arm.9
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 After October 1, Diane Moody was twice warned that she
should tell Witherspoon not to come into the plant. The Respondent
explained that Moody was never disciplined for Witherspoon’s intru-
sions because it had no evidence that she had requested that he enter
the plant. Also, after the charges were filed in this case, Smith
launched an investigation into the incident involving the Moody rel-
atives; according to Smith the investigation disclosed no evidence
that Barbara Moody had encouraged her relatives to enter the plant.
11 The judge did not credit Wallace’s testimony that she had heard
that the front door was locked.
12 The judge also inexplicably found that the Respondent reason-
ably could have believed, based solely on the videotape, that Wal-
lace had led Jackson into the plant through the employee entrance
even though the tape shows Jackson entering first. However, the
judge found it unnecessary to rely on this point in finding that Wal-
lace’s activities on October 1 were unprotected.
13 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1980),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983).
On October 23, 2 days before the second election,
the Respondent placed its parking lot off limits to non-
employees, giving the October 1 incident as the reason
for its new policy. Prior to that date, nonemployees
were allowed into the parking lot but supposedly were
not allowed into the plant area without the Respond-
ent’s permission. Nevertheless, nonemployees had en-
tered the plant area without permission on a number of
occasions. Specifically, Supervisor Diane Moody’s
boyfriend, Melvin Witherspoon, visited her on many
occasions prior to October 1, apparently without inci-
dent. In July 1991, a large group of Moody’s relatives
entered the plant looking for Supervisor Barbara
Moody. Neither Diane nor Barbara Moody were ever
warned concerning these incidents.10 Likewise, as dis-
cussed more fully in the judge’s decision, prior to Oc-
tober 1991, nonemployees visited employees Delores
Knighten, Burnette Glenn, and Bobbie Smith; these
employees also were not disciplined. Many employees
testified that nonemployees frequently visited the plant
prior to October 1. Although Smith admitted that no
employee had ever been warned for violations of its
rule limiting nonemployee access to the plant prior to
October 1, Smith also testified that he had previously
ordered unauthorized nonemployees to leave the plant
when he found them there.
The Judge’s Decision
The judge found that Wallace’s actions on October
1 were concerted activity within the meaning of Sec-
tion 7 of the Act, but that they were not protected by
the Act. In this regard, the judge found that Wallace
encouraged Jackson to proceed through the plant to the
front office notwithstanding Smith’s directive that
Jackson leave the plant by falsely stating that the visi-
tor’s entrance was locked.11 The judge further found
that Wallace’s conduct in this regard was insubordinate
and defiant of Smith’s authority. Balancing Wallace’s
right to engage in concerted activity against the Re-
spondent’s right to maintain discipline, order, and re-
spect in its establishment, the judge concluded that
Wallace’s encouraging Jackson to continue through the
plant through the use of deliberate falsehoods in defi-
ance of Smith’s directions was not protected by the
Act and ‘‘clearly warranted Wallace’s termination.’’12
The judge also found that Wallace’s lying about her
actions on October 1 in the October 7 interview with
Felsenthal was unprotected as well.
The judge rejected the General Counsel’s contention
that the Respondent had disparately enforced its policy
against nonemployee access to the plant floor. Al-
though acknowledging that there was contradictory
evidence on this point and that the Respondent may
not have policed the area as well as possible and may
have occasionally failed to expel unauthorized non-
employees found on the plant floor, the judge con-
cluded that none of those incidents rose to the ‘‘sever-
ity’’ of the October 1 incident. The judge also noted,
in this regard, that the Respondent’s facility is a manu-
facturing plant which is not open to the public and that
the entrance through which Jackson entered is marked
for ‘‘employees only.’’
The judge found that the Respondent terminated
Wallace because of her unprotected activities and not
because of her union activity. In this regard, the judge
found that a prima facie case had not been established
under Wright Line,13 as the General Counsel had not
demonstrated union animus on the Respondent’s part.
Even if a prima facie case had been established, the
judge stated that he believed that the Respondent had
shown that it would have terminated Wallace even ab-
sent her union activity and any concerted protected ac-
tivity in which she may have engaged.
Finally, the judge found that even if Wallace’s ter-
mination was found to be unlawful, she was not enti-
tled to reinstatement because her conduct in connection
with this proceeding rendered her unfit for further
service. Thus, the judge stated that Wallace ‘‘admit-
tedly’’ lied in her affidavit to the Board about having
said that the door was locked, a matter which the
judge viewed as ‘‘very significant’’ to the decision to
issue a complaint in this case. The judge also stated
that Wallace had lied in her testimony in this case and
in a prior Board proceeding involving the Respondent.
The Exceptions
The General Counsel excepts to the judge’s dismis-
sal of the 8(a)(1) and (3) allegations with regard to
Wallace’s termination. In the General Counsel’s view,
Wallace’s actions on October 1 were not so flagrant or
extreme as to lose the protection of the Act. Thus, the
General Counsel argues that the Respondent had not
313EARLE INDUSTRIES
disciplined other employees for engaging in the same
conduct both in other incidents where nonemployees
entered the plant and in the case of the Jackson inci-
dent itself. Further, the General Counsel argues that
the Jackson incident was no more than a brief,
nonconfrontational encounter in a nonwork area during
nonwork time, which did not warrant the extreme
sanction of dismissal in light of the Respondent’s past
practice. In this regard, the General Counsel asserts
that the judge’s finding of no union animus is erro-
neous, noting in particular that the Respondent has
committed many prior unfair labor practices and twice
having terminated Wallace prior to this incident.
The Union’s exceptions also assert that the judge
erred in failing to find that Wallace’s termination was
unlawful.
Prior Decisions
On June 4, 1992, the Board issued its decision over-
ruling the Respondent’s objections to the election held
at its plant on October 25, 1991, and certifying the
Union as its employees’ representative. In this regard,
the Respondent’s objections were based in large part
on the same events which are at issue in this case. In
finding that the October 1 Jackson incident did not
constitute objectionable conduct, the Board found that
Reverend Jackson’s unauthorized entry into the
plant occurred during unit employees’ non-work
time in a non-work area; lasted less than two min-
utes; . . . and did not include any threats, vio-
lence or ‘‘shouting matches’’ between Smith and
Jackson.
Earle Industries, Case 26–RC–7346 (unpublished deci-
sion), slip op. at 4.
Subsequently, the Board’s certification of the Union
was upheld in all respects by the United States Court
of Appeals for the Eighth Circuit. Thus, the court of
appeals agreed with the Board that
the actions of October 1, 1991, both inside and
outside the plant, were restrained in nature. Nei-
ther Reverend Jackson nor other union agents
made any threats of violence against Earle Indus-
tries’ management, employees, or property, either
before or after Reverend Jackson entered the
plant. The Board noted that Reverend Jackson’s
exchange with Smith was ‘‘quiet and civil.’’
Contrary to Earle Industries’ assertions, the evi-
dence does not show that employees erupted into
a frenzy or near-riot. Rather, the evidence sup-
ports the Board’s finding that most employees re-
turned to their job stations on time at the end of
the lunch period during which the rally occurred
and that the few employees who returned late
were tardy by only a few minutes. Manager Smith
himself admitted that there were no threats or vio-
lence at any point during the union-sponsored ac-
tivities.
NLRB v. Earle Industries, above, 999 F.2d at 1273.
Analysis
We agree with the judge that Wallace’s participation
in the Union’s October 1 organizing rally, together
with her actions in connection with Reverend Jack-
son’s entry into the Respondent’s plant, were concerted
activity within the meaning of Section 7 of the Act and
we note that no party has excepted to this finding. For
the reasons that follow, however, we find, contrary to
the judge, that Wallace’s actions on October 1, and
during the course of her subsequent, related interroga-
tion by the Respondent on October 7, were protected
activity. Because the Respondent admits that it termi-
nated Wallace based on those actions, we find that it
thereby violated Section 8(a)(3) and (1) of the Act.
The standard for determining whether an employee’s
actions are protected by the Act is well settled. As the
Board observed in Health Care Corp., 306 NLRB 63,
65 (1992),
[t]he Board has long held that in the context of
protected concerted activity by employees, a cer-
tain degree of leeway is allowed in terms of the
manner in which they conduct themselves. The
Board and the courts have found, nonetheless, that
an employee’s flagrant, opprobrious conduct, even
though occurring during the course of Section 7
activity, may sometimes lose the protection of the
Act and justify disciplinary action on the part of
an employer. Not every impropriety, however,
places the employee beyond the protection of the
Act.
See also Brunswick Food & Drug, 284 NLRB 663
(1987); Postal Service, 241 NLRB 389 (1979); Crown
Central Petroleum, 177 NLRB 322 (1969), enfd. 430
F.2d 724 (5th Cir. 1970).
Applying this standard, we find that Wallace’s en-
couragement of Reverend Jackson to proceed to the
front office falls within the degree of latitude which
the Act affords employees in order to ensure that they
may freely exercise their Section 7 rights. Consistent
with the Eighth Circuit’s and the Board’s prior deci-
sions involving this incident, we note initially that the
entire incident on October 1 was a brief, quiet, civil,
and nonthreatening encounter in a nonwork area of the
plant during nonwork time which lasted less than 2
minutes. Wallace’s involvement in the incident was
even briefer, as it consisted solely of her encouraging
Reverend Jackson, once he was already inside the
plant, to proceed to the Respondent’s front office and
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 In this regard, we find, contrary to the judge, that the videotape
cannot reasonably be viewed as indicating that Wallace led Jackson
into the plant through the employee entrance. Moreover, the Re-
spondent admits that, at the time the termination decision was made,
it was not aware of and did not rely on employee Riley’s statement
that Wallace directed Jackson toward the plant’s employee entrance.
Accordingly, we find it unnecessary to decide whether such conduct
would have been protected under the Act and we further find it un-
necessary to pass on the Union’s exceptions to the judge’s credibility
resolutions with regard to this aspect of the case.
We further note that Jackson’s entry was prompted, at least in
part, by the Respondent’s having caused the removal of the truck
from the parking lot with Jackson aboard and the arrest of two union
officials who had also participated in the rally in the parking lot on
October 1. Under these circumstances, and based on our review of
the videotape of the incident, we perceive no evidence to indicate
that Jackson’s entry into the plant was the result of some conspiracy
or preconceived plan, much less that Wallace was party to any plan
of this sort.
15 In F. W. Woolworth Co., the Board found that the employer
violated the Act by discharging an employee who persisted in asking
questions at a captive-audience meeting, in defiance of the employ-
er’s policy prohibiting such questions and a manager’s directions
that the employee take his seat. In this regard, the Board adopted
the judge’s finding that
[C]ongressional guarantees embodied in Section 7 of the Act
would be jeopardized if every act of disrespect or insubordina-
tion emerging from a protected dispute which divides manage-
ment from its workforce, renders the employee involved as fair
game for discipline. [Id. at 1114.]
We therefore disagree with our dissenting colleague’s apparent as-
sertion that conduct involving insubordination or untruthfulness is
per se unprotected, and we note that no authority is cited for this
proposition.
16 Hicks ultimately told Smith that the powder was only salt, after
repeated questionings and after Smith had independently had the
powder analyzed by the local police.
to meet with Felsenthal, and her indicating to Jackson
where the front office was located.14
Concededly, Wallace’s actions were contrary to the
Respondent’s clearly expressed desire that Reverend
Jackson leave its plant and re-enter through the front
door. However, and contrary to the judge, an employ-
ee’s actions do not lose the protection of the Act mere-
ly because they may be viewed as ‘‘insubordinate.’’
See Severance Tool Industries, 301 NLRB 1166
(1991); Burle Industries, 300 NLRB 498 (1990); F. W.
Woolworth Co., 251 NLRB 1111 (1980), enfd. 655
F.2d 151 (8th Cir. 1981), cert. denied 455 U.S. 989
(1982).15 Moreover, the Respondent’s contention that
Wallace’s conduct was ‘‘flagrant’’ and ‘‘extreme’’ is
belied by the Eighth Circuit’s holding that the actions
of October 1 were ‘‘restrained’’ in nature, and by the
Respondent’s disparate treatment of other employees
who similarly encouraged Reverend Jackson to ignore
Smith and continue into the plant. Thus, both the vid-
eotape of the October 1 incident and the Respondent’s
post-October 7 investigation clearly show that other
employees applauded Reverend Jackson’s dialogue
with Smith and even pointed toward the Respondent’s
employee entrance in an effort to direct Jackson to
Felsenthal. None of these individuals was disciplined.
Indeed, with respect to many of the individuals identi-
fied as having engaged in conduct similar to Wal-
lace’s, the Respondent failed to show that it even con-
ducted any investigation as it did with respect to Wal-
lace.
Moreover, the Respondent’s lax enforcement of its
no-access policy in other, prior, cases, as noted above,
further indicates that Wallace’s conduct was not so
egregious as to lose the Act’s protections. The judge
found that the evidence adduced by the General Coun-
sel in this regard was unpersuasive because the prior
incidents were not of the same magnitude as the Octo-
ber 1 incident. We disagree. Regardless of whether the
prior incidents are sufficiently similar to support a
finding of disparate treatment, the threshold inquiry is
whether Wallace’s part in Reverend Jackson’s viola-
tion of the no-access rule is so extreme and flagrant
as to lose the Act’s protections. We find that the Re-
spondent’s failure to impose any discipline whatsoever
for violations of this rule prior to October 1 under-
mines the Respondent’s characterization of the severity
of Wallace’s conduct in the incident at issue here.
Indeed, the Respondent has punished much less se-
verely an instance of ‘‘insubordination’’ or failure to
‘‘cooperate’’ with an investigation similar to that
which it claims occurred here. In this regard, shortly
after Wallace’s termination, employee Gary Hicks re-
ceived a 3-day suspension for refusing to identify—in
response to inquiries by his supervisor and by Smith—
powder contained in a foil packet found at Hicks’
work station.16 Moreover, Smith admitted that since
1989, no other employee has been terminated by the
Respondent for failing to cooperate with an investiga-
tion.
We note additionally that the Respondent’s disparate
treatment of employees engaged in concerted activities
in this regard is entirely consistent with its previously
demonstrated animus towards unions in general and to-
ward Wallace in particular as reflected in a long his-
tory of engaging in unfair labor practices in response
to union organizing drives. Thus, the Respondent un-
lawfully reacted to a 1963 union organizing campaign
by threatening plant closure and other reprisals, pur-
posely creating the impression of impending plant clo-
sure in the event of union success, interrogating em-
ployees, and attempting to force employees to wear
‘‘Vote No’’ signs prior to the election. Earle Indus-
tries, 146 NLRB 536 (1964).
Subsequently, a week prior to an election held on
November 29, 1977, the Respondent unlawfully termi-
nated Wallace—a known union supporter and a mem-
ber of the union’s organizing committee. The Respond-
ent reinstated Wallace with backpay on October 25,
1978, in accordance with a settlement agreement re-
solving unfair labor practice charges filed concerning
her termination. See Earle Industries, Case 26–CA–
315EARLE INDUSTRIES
17 In finding that Wallace’s actions on October 1 were protected
activity, we emphasize that we have viewed the same videotape of
the incident on which the Respondent relied in deciding to terminate
Wallace. We disagree with our dissenting colleague’s assertion that
the videotape indicates that Wallace was guilty of ‘‘gross
misconducted.’’
18 The Respondent identified this as the most significant factor in
its decision to terminate Wallace in 1991.
The General Counsel contends that the interview was a sham de-
signed by the Respondent to set Wallace up to be terminated and
thus further evidence that the termination itself was unlawful. In this
regard, the General Counsel notes that Felsenthal admitted that,
based on his viewing of the videotape, he knew the answer to most
of the questions which he posed to Wallace. Further, the General
Counsel asserts that the circumstances surrounding the Respondent’s
decision to tape record the interview are suspicious, as is its failure
to similarly investigate other employees involved in the October 1
incident. In light of our findings above, we find it unnecessary to
pass on the General Counsel’s contentions in this regard.
19 Because the only reasons advanced by the Respondent for Wal-
lace’s discharge involve activities which we have found to be pro-
tected concerted activities under the Act, we find it unnecessary to
analyze this case under the Board’s Wright Line framework, which
is applied in ‘‘mixed motive’’ cases where a legitimate, nondiscrim-
inatory reason for adverse employment action has also been ad-
vanced. Cf. Alaska Pulp Corp., 296 NLRB 1260 (1989) (employee
denied reinstatement for testifying before Congress and for letter
protesting employment conditions); F. W. Woolworth Co., above
(employee terminated for asking questions at captive audience
speech). We thus respectfully disagree with our dissenting col-
league’s apparent suggestion that we have found that Wallace was
discharged for some unspecified antecedent union activity.
20 Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950).
7174. However, only 1 month later the Respondent un-
lawfully terminated Wallace—along with four other
union supporters—because of their union activities and
in order to prevent them from voting in an upcoming
Board election. Earle Industries, 260 NLRB 1128
(1982). Contrary to the judge, we find that the Re-
spondent’s past history of unlawful activity—and its
repeated terminations of Wallace herself—support a
finding of union animus notwithstanding the passage
of time between some of these events and the events
at issue in this case.
Under all the circumstances of this case, we find
that the General Counsel has shown that Wallace’s ac-
tions on October 1, on behalf of the union organizing
campaign, constituted protected, concerted activity
within the meaning of Section 7 of the Act.17
In light of this finding, it follows necessarily that the
Respondent cannot rely on Wallace’s failure to ‘‘co-
operate’’ in its October 7 interrogation concerning
those activities, or any false statements which she
made in response to Felsenthal’s questions, as a jus-
tification for her termination.18 It is well settled that
interrogating an employee about protected concerted
activities is unlawful even though the activities in
question were conducted openly. Farr Co., 304 NLRB
203, 216–217 (1991). As such, even though the Re-
spondent’s October 7 interrogation was not alleged to
have independently violated the Act, Wallace was
under no obligation to ‘‘cooperate’’ with the Respond-
ent’s coercive questioning or to provide the Respond-
ent with the information it sought with respect to her
protected concerted activities. In this regard, the inter-
rogation at issue here was particularly coercive in that
it was conducted in Felsenthal’s office by the Re-
spondent’s top management officials and in light of
this Respondent’s having previously unlawfully termi-
nated Wallace. Moreover, we note that Wallace ini-
tially endeavored to merely refrain from providing any
answer to these questions, and any false responses
were made only after Felsenthal implicitly threatened
her with discipline on the basis of her silence. Under
these circumstances, we find that Wallace’s responses
to the questions put to her by the Respondent on Octo-
ber 7 were a continuation of her protected, concerted
activities on October 1, and that the Respondent’s de-
cision to terminate her on the basis of those responses,
and on the basis of her other protected concerted ac-
tivities on October 1 as set forth above, was unlaw-
ful.19
REMEDY
In order to remedy the unfair labor practices which
we have found, we shall order the Respondent to cease
and desist, and to take certain affirmative action nec-
essary to effectuate the purposes of the Act. Contrary
to the judge, we find that it will effectuate the pur-
poses of the Act to require the Respondent to offer
Wallace full and immediate reinstatement to her job as
a service girl in the tops and bottoms department and
to make her whole for any loss of earnings and other
benefits suffered as a result of her unlawful discharge
on October 8, 1991, with interest computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).20 Thus, we find that Wallace
is entitled to reinstatement and backpay even though
she repeated, in her affidavit to the Board and at the
hearing, the false statements concerning her actions on
October 1 which she first made to the Respondent dur-
ing the October 7 interrogation. See ABF Freight Sys-
tem, 304 NLRB 585, 591 (1991), enfd. sub nom.
Miera v. NLRB, 982 F.2d 441 (10th Cir. 1992), affd.
sub nom. ABF Freight System v. NLRB, 114 S.Ct. 835
(1994). In this regard, we note that the matters about
which Wallace testified falsely were not determinative
of the merits of this case, as we have found that Wal-
lace did not lose the protection of the Act even without
regard to the false testimony. Further, while we, of
course, do not condone false testimony we also note
that Wallace may well have felt compelled to conform
her testimony in this proceeding to the statements
which she made during the course of the coercive in-
terrogation described above. To fail to require the rein-
statement of Wallace in such circumstances would re-
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Our dissenting colleagues does not explain why the mitigating
circumstances described above should not be taken into account,
given that Wallace’s termination violated the Act, nor does the dis-
sent explain how the effects on other employees of the Respondent’s
third termination of Wallace (two of which have been found to be
unlawful, while the third was rescinded as part of a settlement of
a charge filed with the Board) could be dissipated, particularly
against the background of clear, longstanding union animus de-
scribed above, if the Respondent’s actions were found to be unlawful
yet reinstatement with backpay was not ordered.
22 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992). The judge found
that there was no disparate enforcement of the Respondent’s no-ac-
cess rule. My colleagues do not challenge this finding.
2 Contrary to the suggestion of my colleagues, I am not asserting
that insubordination or untruthfulness are per se unprotected. I sim-
ward the Respondent for having subjected Wallace to
that interrogation if we failed to provide our traditional
remedies in this case. Finally, in light of this Respond-
ent’s longstanding unlawful efforts to prevent its em-
ployees from exercising their right to freely choose
whether to engage in collective bargaining, we find
that reinstatement with backpay is necessary to ‘‘dis-
sipate the deeply coercive effects upon other employ-
ees who may desire self-organization, but have been
discouraged therefrom by the threat to them implicit in
the discrimination.’’ Phelps Dodge Corp., 35 NLRB
418 (1941).21
ORDER
The National Labor Relations Board orders that the
Respondent, Earle Industries, Inc., Earle, Arkansas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees or otherwise discriminat-
ing against them because they have engaged in union
or other protected, concerted activities.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Earley Mae Wallace full and immediate re-
instatement to her former job or, if that job no longer
exists, to a substantially equivalent position without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed, and make her whole for any
loss of earnings and other benefits in the manner set
forth in the remedy section of this decision.
(b) Remove from its files any reference to Earley
Mae Wallace’s unlawful discharge and notify her in
writing that this has been done and that the discharge
will not be used against her in any way.
(c) Preserve and, on request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in Earle, Arkansas, copies of
the attached notice marked ‘‘Appendix.’’22 Copies of
the notice, on forms provided by the Regional Director
for Region 26, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 26 in
writing within 20 days from the date of this Order
what steps the Respondent has taken to comply.
MEMBER COHEN, dissenting.
The judge found that employee Wallace engaged in
insubordinate conduct on October 1 and that she inten-
tionally lied in the process of doing so. The judge fur-
ther found that Wallace again lied to Respondent on
October 7, during the subsequent investigation of the
incident. I would adopt the judge’s factfindings. Fur-
ther, the judge concluded that the acts of insubordina-
tion and prevarication were unprotected. I would agree
with that legal conclusion; my colleagues would not.
Finally, the judge found that Respondent discharged
Wallace for her misconduct. I would affirm this fact-
finding; my colleagues would not. For all of these rea-
sons, I dissent from the decision of my colleagues.
In brief, the evidence establishes that the Union was
engaged in an organizational campaign among the Re-
spondent’s employees. In connection therewith, Rev-
erend Jackson (a nonemployee of the Respondent)
made an unauthorized entry into the Respondent’s
plant during a rally at which he spoke. The Respond-
ent directed him to leave, although it was willing to
permit his reentry through a visitor’s entrance. It is
clear that the Respondent had a right to direct Jackson
to leave.1 It is equally clear that employee Wallace
sought to thwart this lawful directive. According to the
judge, she did so by falsely telling Jackson that the
visitor’s entrance was locked and indicating that he
should therefore continue his foray through the plant
toward Respondent’s offices. The judge also found that
Wallace repeated the lie, even after Respondent’s agent
truthfully said that the visitor’s entrance was unlocked.
Based on these facts, the judge found that Wallace
was insubordinate and that she lied repeatedly in the
process. I agree. Further, in agreement with the judge
and contrary to my colleagues, I would not give statu-
tory protection to such gross misconduct.2
317EARLE INDUSTRIES
ply conclude that the combination of the two in the rather brazen
circumstances of this case is unprotected.
3 There is no contention that Weingarten rights were abridged.
NLRB v. J. Weingarten, 420 U.S. 251 (1975).
4 My colleagues say that they are not contending that Wallace was
discharged for antecedent union activity. However, I note that they
rely on prior discriminatory actions aimed at Wallace, and they as-
sert that Wallace was treated disparately in this case. In these cir-
cumstances, I consider it prudent to make it clear that this theory
of violation is not a viable one.
5 I recognize that Respondent committed unfair labor practices 28
years earlier and discriminated against Wallace 12–14 years earlier.
However, at most, this conduct may help to establish a prima facie
case that Respondent discriminated against Wallace here. Assuming
arguendo such a prima facie case, Respondent clearly met its Wright
Line burden of showing that it would have discharged Wallace in
any event for her misconduct.
6 804 NLRB 585, 589–591 (1991), enfd. sub nom. Miera v. NLRB,
982 F.2d 441 (10th Cir. 1992), enfd. sub nom. ABF Freight System
v. NLRB, 114 S.Ct. 835 (1994).
7 Contrary to the contention of my colleagues, the denial of rein-
statement and backpay to a discriminatee does not leave unlawful
conduct unremedied. A cease-and-desist order protects against future
misconduct and a notice assures employees that their rights will be
protected.
In addition, when Respondent investigated this inci-
dent on October 7, Wallace made the following state-
ments to Respondent: (1) she never spoke to Jackson
in the plant; (2) she never told Jackson that the front
door was locked; (3) once inside the plant, she did not
show Jackson the way to the office; and (4) she never
motioned or encouraged Jackson to enter the office. As
found by the judge, and as graphically detailed by
video-tape evidence, all of these statements were inten-
tionally false. I adopt this finding. Further, unlike my
colleagues, I would not afford statutory protection to
such misconduct.
My colleagues say that Wallace simply failed to co-
operate in the investigation. However, as shown, she
did more—she lied. Even wider of the mark is my col-
leagues’ assertion that Respondent, by conducting the
investigation, somehow caused Wallace to lie. Given
the incident of October 1, Respondent clearly had a
right to inquire; Wallace had a duty to answer truth-
fully.3 Because she chose not to do so, she is respon-
sible for the consequences.
Finally, the judge found that the Respondent dis-
charged Wallace for the aforementioned misconduct. I
agree. My colleagues argue that Wallace was dis-
charged for antecedent protected union activity. In this
regard, they assert that other employees engaged in
comparable misconduct and that Wallace was singled
out. The simple response is that no employee engaged
in conduct that is even remotely comparable to that of
Wallace. No employee engaged in the misconduct of
being insubordinate, lying during the insubordination,
and lying again thereafter.4
For the foregoing reasons, I would affirm the
judge’s finding that the discharge was lawful.5
In addition, even if the discharge were unlawful, I
would not award reinstatement and backpay. In support
of that remedy, my colleagues rely on ABF Freight.6
However, the circumstances here are far more egre-
gious than those ABF. Here, Wallace lied repeatedly,
as part of an act of insubordination. She repeated the
lies during Respondent’s investigation of the matter.
She also lied to the Board, both in the affidavit that
she gave to the Regional Office and again in her testi-
mony in this proceeding. In these circumstances, the
grant of remedial relief has the effect of rewarding
someone who has grossly abused Board processes. In
addition, it requires Respondent to place back into
service an insubordinate and lying employee.7 Even if
the Board chooses to award relief in ABF cir-
cumstances (a choice I would not make), it should not
extend ABF to the more egregious circumstances here.
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 pro-
tected concerted activities.
WE WILL NOT discharge employees or otherwise dis-
criminate against them because they have engaged in
union or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Earley Mae Wallace immediate and
full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights or
privileges previously enjoyed, and WE WILL make her
whole for any loss of earnings and other benefits re-
sulting from her unlawful discharge, with interest.
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The third session of the hearing herein was originally scheduled
for May 26, 1992. Counsel for General Counsel and Respondent’s
counsel filed a motion requesting a postponement and rescheduling
of the continued hearing to the month of August 1992, pointing out
that the Region was currently investigating charges against the Re-
spondent in other cases which assertedly were related to the pending
litigation, and that the parties were actively pursuing settlement of
the pending litigation. While the involved Union and the attorney for
one of the alleged discriminatees, Earley Mae Wallace, were served
with a copy of the motion, see Appendix A, no one objected to the
postponement and rescheduling, and the request was granted.
2 All dates refer to 1991 unless otherwise indicated.
3 The date for filing posttrial briefs was extended at the request of
one of the parties. The letter granting the extension, App. B, does
not note that the request was being granted notwithstanding some
objection. In other words, it appears that the involved Union, which
did not file a brief herein, did not object to the extension by the
Chief Administrative Law Judge to September 30, 1992.
WE WILL remove from our files any reference to our
unlawful discharge of Earley Mae Wallace, and WE
WILL notify her in writing that this has been done and
that her unlawful discharge will not be used against
her in any way.
Grace Speer, Esq., for the General Counsel.
J. Gregory Grisham, Esq. and Jeff Weintraub, Esq.
(Weintraub Robinson Weintraub & Stock), of Memphis,
Tennessee, for the Respondent.
Donneth Wright, of St. Louis, Missouri, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. These consoli-
dated cases were tried in Memphis, Tennessee, on January 30
and 31, 1992, March 30 and 31, 1992, April 1 and 2, 1992,
and August 10 and 11, 1992.1 The Amalgamated Clothing
and Textile Workers Union, Southwest Regional Joint Board
(Union) filed a charge in Case 26–CA–14700 on September
11, 1991,2 and it filed a charge in Case 26–CA–14759 on
October 22. As here pertinent, the Regional Director for Re-
gion 26 on November 29 issued an order consolidating cases
and a consolidated complaint. General Counsel’s Exhibit
1(k). The complaint alleges that Earle Industries, Inc. (Re-
spondent collectively) committed unfair labor practices with-
in the meaning of Section 8(a)(1) and (3) of the National
Labor Relations Act (Act) by discharging its employee Linda
Cummings on March 15, by suspending its employee Wal-
lace on October 7, and by discharging Wallace on October
8. Respondent denies violating the Act.
On the entire record in this proceeding, including my ob-
servation of the witnesses and their demeanor, and after con-
sidering briefs filed by General Counsel and the Respondent,
both on September 30, 1992,3 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, which is a corporation with an office and
place of business in Earle, Arkansas, is engaged in the manu-
facture of closet accessories. The complaint alleges, the Re-
spondent admits, and I find that at all times material herein,
Respondent has been engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts
As here pertinent, Respondent’s employee handbook, Gen-
eral Counsel’s Exhibit 31, contains the following language:
THIRD PARTY INTERFERENCE
We firmly believe that all employees are members of
the same corporate family which can solve its problems
by communicating directly and openly with one an-
other. We do not believe that third parties (unions) help
to promote good employee relations here at Earle In-
dustries.
Wages and Benefits are a result of our ability to
make and sell quality products at a competitive cost.
We believe a union would interfere with these goals
and would hamper our plans for continued growth. It
all comes down to the fact that we need each other. If
we work together in harmony, achieve our personal and
corporate goals and realize the profits necessary to the
future of our company, all of us will benefit.
Peter Felsenthal, who has been associated with Respondent
since 1981 and who is currently its senior vice president, tes-
tified that he was involved in the drafting of this language.
Cummings, who was a trial-period operator, testified that
she was aware of the fact that the company had a 90-day
probationary period and since she was hired on July 16,
1990, her probationary period should have ended on October
15, 1990, but it was extended a number of times.
When called by counsel for General Counsel, Louise
Eskridge, who is the supervisor of Respondent’s Tops and
Bottoms department, testified that about the middle of Janu-
ary she moved Cummings from the machine she had been
using to another machine; that the machine to which she
moved Cummings broke down ‘‘but no more than any other
machine’’; and that Cummings complained to Eskridge about
the machine. When asked if she, Eskridge, refused to move
Cummings to another machine, Eskridge testified that she
never remembered Cummings asking her to move to another
machine. Subsequently, Respondent’s employee, Isabell
Thompson, was assigned to the involved machine. After
working with the machine, Thompson wrote to Eskridge,
among others, requesting that she be taken off the machine.
In her letter, General Counsel’s Exhibit 3(j), Thompson
notes, ‘‘I did not make production this past week due to the
fact that the machine I moved to was not working right most
of the time. Also, it is much slower.’’ Thompson went on
to indicate in the letter that this was the first time that she
had not made production since the second week that she was
employed at Respondent. Eskridge testified that she never
read the letter. Also, Eskridge testified that she removed Re-
spondent’s employee Johnnie Selvy from the involved ma-
chine to another machine because she believed the other ma-
chine was a better machine.
319EARLE INDUSTRIES
When called by Respondent, Eskridge testified that
Cummings was moved to the second sewing machine around
the third week in January, after Mae Lee Reddick became
Eskridge’s assistant; that Cummings had many repairs every
now and then; that Cummings had a poor sewing technique
and was not able to reach production during the 8 months
that she worked for Respondent; that she moved Cummings
to the second sewing machine hoping that it would motivate
Cummings in that she would be next to Mary Smith who
was just beginning to start to make production; that she had
moved Mary Smith and Eunice Williams previously for that
reason; that she thought that she moved Cummings before
the union campaign started; that she thought that she first be-
came aware of union activity in February after Cummings
was moved; that she counseled Cummings many times about
her repairs; that she was sure that Reddick also counseled
Cummings; that Cummings complained about the second
sewing machine and she also complained about the first sew-
ing machine; that when Cummings complained she,
Eskridge, would check out the machine and if it was a me-
chanical problem she would call mechanic Tom Corbett; that
Cummings also had problems with needles breaking and
minor adjustments on the tension which was something that
she, Eskridge, could fix; that if there is a mechanical prob-
lem with the sewing machine she moves the operator to an-
other sewing machine and calls a mechanic; that she could
not recall a time when Cummings was not moved to another
sewing machine when repairs were being made on the sew-
ing machine she was originally using; that Cummings’ sec-
ond machine did not experience more mechanical problems
than the other sewing machines; that she would counsel
Cummings on her technique every time she went over to
Cummings; and that, after the counseling, Cummings did
pretty good at first but eventually she would regress to her
old technique. Eskridge further testified that Cummings’ ma-
chine did not break down every day; that Isabell Thompson
used Cummings’ second machine for a while but because
Respondent was changing the size of the binders used and,
therefore, was changing the folder on the sewing machine
there were problems, initially, adjusting the folder and
Thomas became frustrated and did not want to sew on the
machine; that she did tell Wallace not to move Cummings
to another machine just as she had told all the floor girls not
to move the operators because the floor girls did not know
what was wrong with the machine and supervisors were not
off the floor that long that they, operators, could not wait;
that this has always been Eskridge’s policy and it did not
change during the union campaign; that none of the floor
girls had any experience in sewing; that the policy of moving
operators to another machine when their machines break
down did not change during the union campaign but she,
Eskridge, recalled one instance when floor girl Samantha
Moody moved Cummings and she, Eskridge, said something
to Moody about the fact that floor girls had been given in-
structions that they were to check with either her, Eskridge,
or Reddick before moving any operator; that Eunice Wil-
liams subsequently used Cummings’ second sewing machine
and she, Williams, was very productive; and that when she,
Eskridge testified herein on August 10, 1992, Mary Stone
was using the involved machine and she was producing be-
tween 22 and 24 dozen bags a day, which was described as
very productive. On cross-examination, Eskridge conceded
that when she gave an affidavit to the National Labor Rela-
tions Board (Board) on October 4 she could not recall when
she moved Cummings to her second machine.
According to the testimony of Reddick, who, as noted
above, is assistant supervisor in Respondent’s tops and bot-
toms department, Cummings was moved to her second ma-
chine in the third week in January. Reddick testified that she
was positive about this. She had been made assistant super-
visor in the tops and bottoms department on January 7. With
respect to Cummings’ work on the second sewing machine,
Reddick testified that she had the opportunity to supervise
Cummings and Cummings’ job performance was very poor;
that Cummings did ‘‘bad work’’; that Cummings was slow
in performing her job; that she showed Cummings how to
sew and she observed Eskridge showing Cummings how to
sew; that notwithstanding the counseling, Cummings per-
formance did not improve; that Cummings complained about
the second machine breaking needles and she, Reddick,
called a mechanic; that once the thread broke on the second
machine and Cummings was moved to another machine
while the mechanic worked on the second machine; that she
did not recall any other problems with Cummings’ second
machine; that the tops and bottoms department is never with-
out a supervisor; that if a machine is not sewing properly the
operator is moved to another machine and a mechanic is
called; that to her knowledge that was the policy followed
with respect to Cummings; that she did not know of any oc-
casion when it was not followed; that that policy has not
changed; that she did not see any indication of a union orga-
nizing campaign prior to Cummings being moved to the sec-
ond machine; that she never heard anyone say that the sec-
ond machine that Cummings worked on was a bad machine;
and that she did not ever recall a time when Cummings was
required to stand by her machine while it was being repaired
except when a needle was being replaced. On cross-examina-
tion, Reddick testified that she never talked to Eskridge
about what she believed Cummings’ problems were; that she
did tell Eskridge that Cummings did bad work; that she at-
tended Cummings’ performance meetings with Eskridge in
January, February, and March and she was unable to explain
why, if Cummings had bad sewing habits, she, Cummings,
would have been rated good in the quality of her work in
any of these evaluations; that Corbett was the mechanic she
called to repair Cummings, machine and she called him a
couple of times; that Cummings complained to her and
Eskridge about the second sewing machine; that she was
there when Isabell Thompson worked on the machine; that
the folder on Thompson’s machine was replaced with a wire
one and they were having difficulty in adjusting the new
folder; and that she was aware that Thompson wrote a letter
requesting to be moved from that machine but she was not
aware that the letter stated, ‘‘I made a terrible mistake and
bad decision by moving. I did not make production this
week, due to the fact that the machine I moved to was not
working right most of the time.’’ Reddick testified further
that she did not discuss Cummings’ performance with
Eskridge before they both sat down and met with Cummings
regarding her evaluations; and that Eskridge did not ask for
any input regarding Cummings’ evaluations before they met
with Cummings to discuss the evaluations.
On January 26 Cummings signed a union authorization
card. G.C. Exh. 6(a).
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On January 29, Respondent held a meeting of employees
at which the signing of union authorization cards was dis-
cussed.
On January 29 Eskridge gave Cummings a verbal warning,
General Counsel’s Exhibit 3(a), for having too many repairs.
Eskridge testified that as far as she knew this was the first
warning she had ever given to Cummings for work per-
formed. Eskridge testified that she did not recall how many
warnings she gave out on January 29 to employees in her de-
partment. Cummings signed her January 29 report of a warn-
ing. The warning notes that the employee had been pre-
viously counseled or disciplined for the same or similar rea-
sons the prior and the same week.
Eskridge sponsored Respondent’s Exhibit 25(c) which is
an employee discipline report covering a verbal warning
given to trial-period operator Marvella Brownnlee for having
too many repairs on January 29.
Also, on January 29 Cummings received an evaluation,
General Counsel’s Exhibit 3(f), in which she received
‘‘GOOD’’ for attitude, personality, cooperation, quality of
work, skills, neatness, and relating to others. For productivity
and motivation, Cummings received ‘‘FAIR.’’ Eskridge and
Cummings signed the evaluation. Thereon it was rec-
ommended that Cummings be retained and be reevaluated in
2 weeks. Her prior evaluations, General Counsel’s Exhibits
3(c),(d), and (e), all contain ‘‘GOOD’’ checkoffs for every-
thing but productivity for which she received a ‘‘FAIR’’
checkoff on each of her prior evaluations. The prior evalua-
tions all indicate that Cummings trial period was being ex-
tended over production. Eskridge testified that Cummings
productivity was increasing. The evaluation indicates that as
of January 18 Cummings had reached a productivity level of
$5.30.
By memo to file dated January 31, General Counsel’s Ex-
hibit 40, Smith indicated that an employee meeting was held
on January 30 in tops and bottoms. The body of the memo-
randum reads as follows:
Subjects discussed included the education of employees
as to what they might be signing if they signed a card
presented to them by a ‘‘union’’ representative. They
were told that employees had made the company aware
that such activity was present.
When asked on cross-examination by counsel for General
Counsel if she recalled attending a meeting on January 30,
Eskridge replied that she did not know when the meeting
was held but she did remember attending the meeting.
In the end of January or the first of February, according
to Cummings’ testimony, she carried union authorization
cards to work with her. Cummings testified that she spoke
to a young lady about the Union and about signing an au-
thorization card, and that the authorization card was hanging
out of her wallet which was in her purse. According to
Cummings’ testimony, Eskridge saw it. Eskridge testified
that she never saw Cummings with a union authorization
card, sign a union authorization card, hand a union authoriza-
tion card to someone else, hand out union material, or wear
union clothing. Eskridge also testified that she never looked
into Cummings purse and that she had no idea that
Cummings was involved or even interested in the Union
until the flyer, which is described below, came out on the
day of the election, March 8.
On about the first of February, according to Cummings’
testimony, she was moved to a sewing machine other than
the one she had been using since she was hired. Regarding
the machine to which she was moved, Cummings testified
that it broke down two or three times a day; that she was
not allowed to move to sew on another machine while they
were repairing her machine; that she was told that the prob-
lem was not the machine but rather it was the worker; that
she had to stand there and wait until they fixed her machine;
that she complained to Eskridge who told her not to move
to another machine; that her production dropped because she
had to stand there and wait and was losing time, two or three
times a day waiting for them to fix her machine; that once
floor lady Samantha Moody moved her to sew on another
machine and Eskridge, in Cummings’ presence, told Moody
‘‘[w]hat did you move her for? You put her back. Don’t no-
body move nobody unless me or May Lee [Reddick] tell you
to move her’’; that she saw Wallace speak to Eskridge and
then Wallace told her ‘‘[w]ell, I don’t understand it, she
won’t let her move’’; and that she was moved from her
original machine after Eskridge allegedly saw the union au-
thorization card in Cummings’ purse. Cummings testified
that other people who had used the machine to which she
was moved also had trouble with it, namely Selvy, Debra
Walker, and Rosemary Smith; and that the machine had a
reputation in her department for breaking down. Cummings
also testified that when Eskridge moved her to a different
sewing machine Eskridge did not give her a reason for the
move and Eskridge did not say that she was being moved
to help her increase her production. According to Cummings’
testimony, Eunice Williams at some point in time worked on
the machine to which Cummings was moved. Selvy worked
on the machine just before Cummings was moved to it. And
Walker worked on the machine when they were repairing her
machine. Cummings testified that her old machine seemed
like it was a lot faster than the machine to which Eskridge
moved her.
With respect to Cummings being moved to another ma-
chine on or about February 1, Samantha Moody, who, as in-
dicated above, was a floor girl at the time, testified that the
machine to which Cummings was moved was located di-
rectly in front of Eskridge’s desk; that it was in row four;
that Cummings had problems with the machine in that it kept
breaking down; that Cummings told Eskridge all the time;
that Eskridge would tell Cummings to wait and that she
would be over there in a little while; that she would ask
Eskridge if she could move Cummings and Eskridge would
say no that she, Eskridge, would let her know when she
could move Cummings; that employee Irma Greenhall had
problems with that same machine; that once she moved
Cummings to another machine when Cummings’ machine
broke down and Eskridge was not around; that Eskridge,
upon her return, told Moody that she was not supposed to
move Cummings and that she should move Cummings back
to her machine which was still broken; that the machine
broke down almost every day; that Cummings would report
the breakdown to her and she, in turn, would report it to
Eiskridge; that at times Eskridge would not be around and
when she located Eskridge in the back or up in the office
it would take Eskridge 15 to 20 minutes to get over to the
321EARLE INDUSTRIES
machine; that when Eskridge’s assistant was around, she,
Moody, would tell the assistant; that a mechanic was called
to work on the machine almost every day; and that even after
he worked on the machine it did not operate properly and
he would have to be called back.
Wallace testified that about the middle of February
Cummings was moved to a different sewing machine; that
everybody who sewed on the machine had trouble with it;
that employees who had trouble with the machine included
Isabell Thompson, Rosemary Smith, Virgil Wright, Lucinda
Johnson, and Johnnie Selvy; that prior to the union cam-
paign, when an employee had a problem with their sewing
machine and the mechanic could not get to the sewing ma-
chine, the employee was moved to another sewing machine
if one was available; that after the union campaign started,
if the employee asked to be moved, Eskridge would say
‘‘[d]on’t move them, its not the machine, its the operator’’;
that Cummings was moved to the problem sewing machine
after she solicited Barbara Jackson to sign a union authoriza-
tion card while Eskridge was in the immediate area; that she
did not recall exactly how many days it was after Cummings
showed Jackson the authorization card that she, Cummings,
was moved to the problem machine; and that once when the
problem machine broke down on Cummings two or three
times one morning she, Wallace, went to Eskridge and asked
Eskridge if she, Wallace, and Samantha Moody could move
Cummings and Eskridge said ‘‘[y]ou’d better not move her,
I mean you’d better not move her.’’ Wallace testified that
Cummings was taking her break when she spoke to Jackson
about signing a union authorization card. On cross-examina-
tion, Wallace testified that before the union organizing cam-
paign when someone’s machine broke down, that person was
moved to another machine if one was available; that after the
union organizing campaign began, if someone machine’s
broke, Eskridge told Wallace and the others responsible for
moving sewers to another sewing machine, that they could
not move anybody unless they first obtained Eskridge’s per-
mission; that before the union campaign Wallace and the two
other floor girls, namely Samantha Moody and Burnette
Glenn, were allowed to move sewing machine operators
without Eskridge’s prior permission regarding each individ-
ual instance; and that Eskridge never told her that there had
been a problem with the floor girls moving some of the oper-
ators to different machines. Regarding Cummings showing a
union authorization card to Barbara Jackson, Wallace testi-
fied that she saw Eskridge looking at Cummings and Jack-
son; that Cummings showed the union authorization cards to
her, Wallace; and that she assumed that they were the union
authorization cards she had given to Cummings. Wallace tes-
tified that after the solicitation, Cummings was moved to a
sewing machine on the third table by Eskridge and she, Wal-
lace, did not know what the reason was for moving
Cummings around the middle of February; that for about 2
months Eunice Williams worked on the machine to which
Cummings was moved sometime before she, Williams, quit;
that Williams sometimes had problems with the machine;
that she could not recall whether Williams had a lot of prob-
lems with the machine; that she did not know whether Wil-
liams met her production goals; and that Cummings was
moved from the fourth line to the third line.
Mary Smith testified that Cummings had problems with
her machine and when she told Eskridge about having prob-
lems with the machine sometimes Eskridge would move her
and sometimes she would not; and that every time an opera-
tor is moved because the machine she was working on
breaks down, the operator looses production because bundles
have to be moved to the new machine and if a floor girl is
not available, the operator has to move the bundles herself.
Respondent’s employee Betty Williams, who has worked
for Respondent for 3 years as a sewing machine operator in
tops and bottoms, testified that Cummings had problems with
the sewing machine and she called Eskridge two or three
times a day indicating that the thread was breaking or the
machine was skipping and that Cummings had problems with
the machine two or three times a week. On cross-examina-
tion, Williams testified that it is possible that the supervisor
was able to make a minor repair to the machine when she
was called and that not every repair to the machine requires
a mechanic.
On February 18 Cummings received an evaluation, Gen-
eral Counsel’s Exhibit 3(g). Cummings signed the evaluation,
which contains all ‘‘GOOD’’ checkoffs except for productiv-
ity and motivation which are checked off ‘‘FAIR.’’ On the
evaluation it is indicated that Cummings would be retained
and be re-evaluated in 2 weeks. The evaluation indicates that
Cummings production was at a $5.14 an hour level and that
she was expected to attain a $5.60 level and hold it.
On March 1 Cummings was evaluated by Eskridge, Gen-
eral Counsel’s Exhibit 3(h). Cummings did not sign the eval-
uation. She received ‘‘FAIR’’ checkoffs for attitude, person-
ality, productivity, skills, motivation and relating to others,
while receiving ‘‘GOOD’’ check-offs for cooperation, quality
of work, and neatness. The evaluation notes that Cummings’
productivity level was $4.98 an hour, and it was rec-
ommended by Eskridge that Cummings not be retained.
With respect to Cummings March 1 evaluation, Eskridge
testified that she did not discuss this evaluation with
Cummings because during that time there was a lot of cam-
paigning going on and she had to put off a lot of paperwork.
Eskridge did not recommend retaining Cummings because
her production rate had regressed. Eskridge testified that this
was not the first time that she recommended that an opera-
tor’s trial period not be extended.
On March 7 the Respondent held a meeting of the employ-
ees. Eskridge attended. She observed Cummings taking notes
during the meeting. And she heard Cummings question
Felsenthal about certain statements he had made regarding
various plants that had closed because of union activity.
When called by counsel for General Counsel, Eskridge testi-
fied that there were ‘‘Vote No’’ buttons in a box at this
meeting and people could pick them up if they wanted one.
Initially Eskridge testified that she was not in a position to
observe whether employees took the buttons. When it was
pointed out to her that her Board affidavit states ‘‘I could see
who got the buttons and who didn’t,’’ Eskridge testified ‘‘[i]t
seems like to me I remember saying that I could not see who
got the buttons.’’ After this morning meeting, the employees
returned to their work area. Eskridge testified that she went
to the work area and asked Cummings and another em-
ployee, Mary Smith, ‘‘if the Union had promised them jobs,
even if they didn’t make production.’’ Employees Betty Lou
Williams, Samantha Moody, and others were present. Wil-
liams said that she was making production. Eskridge told
Williams that she was not talking about her, Williams, or
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moody. Eskridge testified that she thought Williams was
being very disrespectful since she, Eskridge, was not talking
to her. Eskridge testified that Respondent has a progressive
discipline system which is comprised of a verbal warning,
two written warnings, a suspension, and termination; and that
it applies to attendance, insubordination, and production. Ac-
cording to Eskridge, the progressive discipline policy does
not apply to new hires. Eskridge gave Cummings a verbal
warning on March 7, General Counsel’s Exhibit 3(b) for in-
subordination. The memorialization of the warning indicates
that ‘‘Linda was screaming and talking back with a very bad
attitude, being very disrespectful to her supervisor and un-
ruly.’’ Cummings did not sign in the designated box indicat-
ing that she had received a copy of the report regarding a
warning. Eskridge testified that while she talked to
Cummings about the warning, Cummings never did see the
memorialization of the warning. Eskridge did not give Wil-
liams a warning regarding what occurred on March 7.
Regarding the March 7 employee meeting, Cummings tes-
tified that the meeting was held in the lunchroom; that
present for the Company were Eskridge, Reddick, Felsenthal,
and Gary Smith, who is Respondent’s personnel director; that
she took notes at the meeting; that she asked Felsenthal, who
had indicated that a unionized company in Marked Tree, Ar-
kansas, had closed down, what the name of the company
was; that there were boxes of buttons on tables by the doors
which are used to exit from the lunchroom; that the buttons
said ‘‘Pro-Union,’’ ‘‘Speak for Yourself,’’ ‘‘Vote No,’’ and
‘‘Unity No Union’’; that Eskridge was at one of the tables;
that she, Cummings, did not take a button; and that Eskridge
could see her.
With respect to her discussion with Eskridge on March 7,
Cummings testified that after leaving the aforementioned em-
ployee meeting at about 9:30 a.m. she returned to her work
station. Cummings gave the following testimony with respect
to what occurred next:
A. Well, I was sitting down getting prepared to start
sewing, and me, Mary, and Betty Lou, and Barbara
Jackson were sitting there, and Louise [Eskridge]
walked up and said. ‘‘Excuse me, I would like to ask
you and Linda something, Smith, Mary,’’ and I didn’t
say anything, I just kept getting my stuff out of my
drawer, and she said, ‘‘What makes you think the union
is going to keep your job,’’ and Mary said, ‘‘Well, an-
swer me this . . . .’’
. . . .
And Mary said, ‘‘Let me ask you this. How come
every time we have questions, we have to go to Gary
and not to Felsenthal himself?’’ She said, ‘‘That is not
what I asked you.’’ She said, ‘‘Well, you asked me a
question and I asked you a question, ‘‘How come we
can’t talk to Felsenthal?’’ She said, ‘‘Well, I have noth-
ing to do with that,’’ she said, ‘‘but I still ask you,
what makes you think the union is going to keep your
job?’’
So, Betty Lou stood up and she said, ‘‘Well, Louise,
the company don’t promise you no job . . . .’’
. . . .
So, Betty Lou said, ‘‘You know, the company don’t
promise you a job.’’ She said, ‘‘Betty Lou, I wasn’t
talking to you.’’ So, Betty Lou sat down.
She said, ‘‘Do you hear me,’’ and I said, ‘‘Louise,
I haven’t said anything to you.’’ She said, I still asked
you a question, ‘‘What makes y’all think the union is
going to keep your job?’’ I said, ‘‘Like she stated, the
company don’t promise you a job,’’ and so she said,
‘‘Well, you need to be quiet and think about your pro-
duction, because neither one of you are making produc-
tion.’’
So, Mary said, ‘‘I can make the production.’’ So, I
said, ‘‘Well, Louise, what is production?’’ and she said
‘‘Seven to eight bundles, it depends on what you’re
sewing.’’ I said, ‘‘Well, I’ve been doing seven and
eight, but I maintain seven more than I do eight.’’ She
said,
‘‘Well, you need to work on that,’’ she said, ‘‘be-
cause I seen Mary was making it, but I don’t see you,
I’ll have to check on that.’’
I asked, I said, ‘‘Well, why do you talk to people
the way you do, don’t nobody talked to you and holler
at you the way you holler at people.’’ ‘‘You don’t tell
me what to do, I am grown,’’ and started pointing her
finger. I said, ‘‘You don’t have to point your finger in
my face either,’’ and then she said, ‘‘Well, look, you
can get up and walk off.’’ I said, ‘‘I’m not walking out
nowhere, you fire me before I leave.’’
So, Samantha said, ‘‘Linda, shut up, you’re saying
too much.’’ She said, ‘‘Shut up before you say too
much,’’ and Louise said, ‘‘You’ve already said too
much,’’ and she walked away.
She went to her desk and started writing down some-
thing, and she came and gave me a piece of paper to
tell me about my production, what I was supposed to
be making.
Cummings testified that when Eskridge said you can get up
and walk off right now, she was pointing towards the exit
door; and that Eskridge had never come up to her before
when she was in a group and discussed her production but
rather in the past she had always been called to the lunch-
room for a discussion of her production. On March 7
Cummings, according to her testimony, wore a union pin.
She testified that she did not wear union pins or insignia
prior to March 7 and that she did not speak up or say any-
thing about the Union prior to the day of the election, March
8.
Regarding the March 7 verbal exchange between Eskridge
and Cummings, Wallace testified that earlier that day during
the captive-audience meeting, Cummings asked Felsenthal
questions and then she and Mary Smith kind of snickered;
that after Cummings returned to her work area she, Wallace
recalled seeing Eskridge standing at her desk with her arms
folded looking over at Cummings and Smith; and that the
next thing she knew Eskridge and Cummings were arguing
and Eskridge, who had her finger in Cummings face, said to
Cummings that the Union could not protect her job. Wallace
also testified that when Eskridge put her finger in
Cummings’ face, the latter was crying. Wallace was about 8
feet away from Eskridge and Cummings during this ex-
change. She, Wallace, testified that at one point Eskridge
said ‘‘can the Union guarantee ya’ll a job.’’ According to
Wallace’s testimony, Cummings was not wearing a red union
T-shirt at the time.
323EARLE INDUSTRIES
With respect to the verbal exchange between Eskridge and
Cummings on March 7, Samantha Moody testified that
Cummings was wearing a union T-shirt that day; that
Eskridge approached Cummings loudly indicating that
Cummings was not getting her production out; that Eskridge
stuck her finger in Cummings’ face and Cummings stood up
and loudly said, ‘‘Louise, both of us is grown, and here you
ain’t got to be doing that’’; and that Cummings hit the table
with her hand as she was standing up.
Regarding the March 7 verbal exchange between Eskridge
and Cummings, Glenn, who has been employed by Respond-
ent for 9 years and is a floorperson, testified that she saw
Eskridge with her finger in Cummings’ face; that Eskridge
was showing Cummings something in a folder; that Eskridge
told Cummings that she could get up leave; that Cummings
said, ‘‘I’m not going to do that. That’s what you want me
to do’’; that Eskridge then said to Cummings ‘‘you might as
well because I’m going to see to it’’; and that Eskridge, at
that time, pointed toward the exit which the employees used.
Mary Smith testified that on March 7 she and Cummings
returned from an employee meeting to their work stations;
that Eskridge walked up to them and said, ‘‘well, Mary, do
you and Linda think that the Union could help you—all keep
you—all’s jobs’’; that Eskridge then said ‘‘you know you’re
not doing production’’; that she told Eskridge that she was
doing her production; that Betty Lou started to say some-
thing and Eskridge told her to shut up that she, Eskridge was
not talking to her; that Cummings said that she thought she
was making her production; that Eskridge showed Cummings
a piece of paper and said that Cummings was not making her
productions; that Eskridge shook her finger in Cummings’
face and that is when Cummings got mad; that the employ-
ees in the area told Cummings to be quiet and Eskridge said
that she, Cummings, had already said too much; that
Eskridge had never discussed her production with her on the
floor like that before; and that Eskridge has never discussed
Smith’s production with her on the floor like that since this
incident. On cross-examination, Smith testified that when
Eskridge started pointing her finger in Cummings’ face,
Cummings started to stand up but Smith did not believe
Cummings stood all the way up because the employees in
the area told Cummings to sit down; that on that particular
day she, Smith, was wearing a union red T-shirt and
Cummings was not wearing a union red T-shirt, but
Cummings was wearing a union button that she had bor-
rowed from someone else; that this was the first time that
she, Smith, wore a union red T-shirt and she thought that this
was the first time that Cummings had worn a union button;
that she did not hear any rumors circulating at that time
which related to making production; and that this was the
only time that Eskridge ever discussed production with her
while she was at her sewing machine.
Betty Williams testified that she witnessed the verbal ex-
change between Eskridge and Cummings on March 7. Ac-
cording to Williams’ testimony, at one point Eskridge said
‘‘do you think the Union going to save you you’re job.’’ At
this point, according to Williams’ testimony, she said that
neither the Union nor the Company could save the employ-
ees’ jobs but rather the employee could save the job only if
she was meeting production. Eskridge then told her ‘‘shut up
because this don’t concern you.’’ Williams testified that
when Cummings told Eskridge that she should not talk to her
like that and that she, Cummings, was grown just like
Eskridge, Eskridge said, ‘‘well, you can go out the door.’’
Williams also testified that Eskridge pointed her finger in
Cummings’ face and that when she, Williams, told
Cummings to be quiet before she said the wrong thing,
Eskridge said ‘‘she’s already said the wrong thing.’’ With re-
spect to Eskridge discussing production with employees at
their sewing machine, Williams testified that it had never oc-
curred before. On cross-examination, Williams testified that
she was a union supporter; that during the verbal exchange
between Eskridge and Cummings, when Cummings got up
she hit her fist on the table when she said ‘‘wait a minute.
You don’t talk to me like that. I’m just as grown as you
are’’; that Eskridge told Cummings that she could leave; that
she and Mary Smith were wearing red union T-shirts; that
Cummings did not have on a red union T-shirt but she was
wearing a union button which Williams gave her; and that
both Mary Smith and Cummings had worn union T-shirts be-
fore March 7. On redirect, Williams testified that the in-
volved union T-shirts were provided by the Union about a
week before the election. And on further cross-examination,
Williams testified that she thought she saw Mary Smith,
Cummings and others wear red union T-shirts more than a
week before the election.
Respondent’s employees Margaret Davis and Joy Chase
testified that union T-shirts were first handed out the day be-
fore the election, March 7.
Regarding the March 7 incident between Eskridge and
Cummings, Gary Smith testified that he authorized Eskridge
to issue the discipline to Cummings for insubordination and
he was aware that the conversation referred to in this warn-
ing was initiated by Eskridge asking Cummings if she
thought that the Union could help her keep her job.
When called by Respondent, Felsenthal testified that on
March 7 Eskridge told him and Gary Smith that she was
concerned that the trial-period operators were being told that
if they did not get the Union in, they would loose their jobs
because they were not producing. Felsenthal interpreted this
to mean that the only way for the trial period operators who
are not producing to keep their job would be to have the
Union in. Felsenthal testified that he told Eskridge that he
wanted the employees to understand that union or no union,
they would have to produce and he asked Eskridge to check
with the trial-period operators who are not producing and to
find out if in fact this is what they were being told. On
cross-examination, Felsenthal testified that he did not recall
Cummings taking notes at the employee meeting; that there
may have been some employees taking notes but he did not
know Cummings by face; and that Eskridge’s testimony at
the hearing herein in his, Felsenthal’s, presence that
Cummings asked him during the employee meeting what
plant he was talking about when he mentioned that one had
closed in Marked Tree did not jog his memory. Felsenthal
also testified on cross-examination that Gary Smith was
present when he had his conversation with Eskridge about
talking to probationary employees with respect to whether
they would have to make production if the Union was cer-
tified; that Smith might have asked Eskridge to go out and
take care of it; that he could not place the time of day when
he had this conversation with Eskridge and Smith; and that
he did not remember if this conversation occurred in his of-
fice or if it occurred in the lunchroom after a meeting.
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Assistant Supervisor Reddick’s testimony, on
March 7 neither Cummings nor Mary Smith had on any
union paraphernalia.
With respect to her verbal exchange with Cummings on
March 7 and the subsequent warning to Cummings,
Eskridge, when called by Respondent, testified as follows:
Q. Would you tell us what prompted this write-up?
A. Well, I heard rumors that they had—the newer
employees had been intimidated by some of the union
supporters, and what I was hearing was that they were
telling them that if they didn’t reach production, you
know, ‘‘If you don’t reach production, they’re going to
get rid of you if you if you don’t get this union, if you
don’t take—vote this union in,’’ or whatever.
And I talked to Peter about it, and he asked me to
go, you know, and find out if anybody was bothering
them, you know, or had they been intimidated.
And so, I went over to her, and I asked them, I said,
‘‘Did the Union tell you that if you didn’t make pro-
duction, you were going to lose your job?’’ and Mary
Smith said, ‘‘No.’’
Then by that time, Samantha Moody jumped in, and
she said, ‘‘Well, they’re making production,’’ and I
said, ‘‘Oh, no,’’ I said, ‘‘Mary may be right now,’’ I
said, ‘‘but Linda is not,’’ and Linda started yelling and
screaming and saying a lot of jibber-jabber and telling
me don’t play with her, and I couldn’t even—she was
going on so, until to tell you the truth about it, I
couldn’t even get sense into her, to understand what she
was saying, she was going on so about.
At this point, did you direct any comments toward
her?
Yes. She had got me kind of upset, because I was
trying to ask Linda, ‘‘Linda, what are you saying?’’
you know, ‘‘What are you talking about,’’ and she
wouldn’t never calm down enough for me to under-
stand, and by that time, Samantha Moody and Betty
Williams, and some of the other girls that was on the
table, was telling her, saying, ‘‘Linda, shut up, shut up,
Linda, shut up, Linda, you talk too much, you’re talk-
ing too much, you’re talking too much,’’ and she really
just made—I got upset with her, and I turned and I
said, ‘‘That’s all right, let her talk on,’’ I said, ‘‘she al-
ready talked too much.’’
Okay. When you made that comment, what were you
referring to?
I was referring to only that I was going to write her
up.
Eskridge testified that during her verbal exchange with
Cummings on March 7 she did not know if Cummings or
Smith were union supporters. Further, Eskridge testified that
the rumors that she heard related to threats that non-trial pe-
riod operators were receiving; that she thought there were
only two trial-period operators at the time, Cummings and
Smith; that she did not learn that Cummings was a union
supporter until she saw a flyer with Cummings’ picture in it,
and she thought the flyers were handed out the day of the
election but she was not sure; and that she did not tell
Samantha Moody that Cummings was for the Union.
With respect to the March 7 employee discipline report re-
garding the verbal exchange between Eskridge and
Cummings, Eskridge testified, when called by Respondent,
that she did not have Cummings sign the report because it
is not mandatory to have the employee sign it; that she dis-
cussed this incident with Cummings 2 or 3 days after it oc-
curred, telling Cummings that she, Eskridge, was going to
give her, Cummings, a verbal because she had screamed and
she was being insubordinate; that during this exchange she,
Eskridge, did not point to the door and tell Cummings to
leave; that she did not tell Cummings that she might as well
be leaving; that she did not point her finger in Cummings’
face; that at the time she was 5.5 to 6 feet from Cummings;
that she never told Cummings that she was going to get her;
and that neither Cummings nor Smith had any kind of a
union button or union clothing on that day. On cross-exam-
ination, Eskridge testified that she was motivated to speak to
Cummings and Smith because she had heard rumors that
they had been intimidated by people who were going around
saying that if they did not vote for the Union and get the
Union in that they were going to be fired; that she discussed
this with Felsenthal after the employee meeting that day and
before she spoke with Cummings and Smith; that she told
Felsenthal that some of the people were going around telling
the new employees that they were going to be fired if they
did not vote the Union in and Felsenthal told her to ‘‘let
them know that their job wasn’t in jeopardy. You know, to
find out’’; that the rumor she heard only related to probation-
ary employees and she did not know to what extent the
rumor related to the probationary employees’ production; that
she asked Cummings and Smith if anybody had been intimi-
dating them, telling them that they were going to get fired
if they didn’t make production; that her October 4 affidavit
to the Board indicates that she asked them if the Union had
promised them their jobs if they did not make production;
and that this exchange occurred close to 24 hours before the
election. Eskridge further testified on cross-examination that
she recalled Cummings taking notes at the March 7 em-
ployee meeting and asking about different plants which were
open or closed. Also on cross-examination, Eskridge testified
that when she went to speak to Cummings and Smith about
the rumor, she did not talk to Brownnlee about the rumor;
that she thought Brownnlee may have quit by that time or
she was on medical leave and she, Eskridge, was not sure
that Brownnlee was even there at that time; that since Re-
spondent’s records namely Respondent’s Exhibits 25(a), (b),
and (c) indicate that Brownnlee received warnings on Janu-
ary 29 and March 13 and 21, apparently Brownnlee was
there; that she did not speak to anyone else after Cummings
and Smith because of the commotion when she did speak
with Cummings and Smith; that after speaking with
Cummings and Smith she told Felsenthal what happened;
and that at that time Felsenthal ‘‘didn’t tell me to bother any-
body else.’’ On redirect, Eskridge testified that Felsenthal did
not tell her to speak to Cummings and Smith but rather she
spoke to them because they were the closest probationary
employees to her desk and Brownnlee was sitting further
from her desk than Cummings and Smith.
Gary Smith sponsored Respondent’s Exhibits 40, 41, and
42 which demonstrate with respect to six specified employ-
ees, other than Cummings, that the employees did not sign
employee discipline reports or employee evaluations, not-
withstanding the fact that there is a box or a line for such
employees’ signatures.
325EARLE INDUSTRIES
On March 8 a leaflet, General Counsel’s Exhibit 6(b), was,
according to Cummings’ testimony, handed out to employees
as they came into work. The leaflet contains the pictures of
a number of individuals with a written statement and a writ-
ten name next to the picture. The following statement ap-
pears next to Cummings’ picture: ‘‘I want to be treated fair-
ly. This is not asking too much. I know the company can
treat us better. I’m voting yes.’’
Eskridge, on March 8, saw the paper containing
Cummings’ picture and indicating that Cummings supported
the Union.
On March 11, according to Cummings’ testimony,
Eskridge, during a discussion of Cummings’ evaluation, told
her that she was having too many repairs and that everything
else was okay.
Regarding repairs made on March 11 and 12, Eskridge tes-
tified that she recalled that employee Beverly Burford was
given the wrong bindings but she, Eskridge, could not recall
if Burford received the wrong bindings on those 2 days.
On March 13, Cummings received a verbal warning from
Eskridge, General Counsel’s Exhibit 3(i), for having too
many repairs on March 11 (the first workday after the March
8 election) and March 12. The report of the warning indi-
cates that Cummings said that this was the same as sewing
on wrong binding and Eskridge indicated it was not and
there was a difference between bad work and wrong binding.
The report goes on to note that ‘‘failure to improve could re-
sult in further disciplinary action including termination.’’
Regarding her March 13 warning, Cummings testified that
she signed it; that it was for too many repairs on March 11
and 12; that the repairs were caused by the fact that the su-
pervisor gave Reddick the wrong binding; that the binding
was for a special order and it was not the regular binding
that she used all the time; that Reddick gave the wrong bind-
ing to her and another sewer, Beverly Burford; that her pro-
duction slowed down because she was required to do all of
her repairs herself; that Wallace started to help her with her
repairs but Eskridge stopped Wallace indicating that
Cummings would have to make the repairs herself; that
Eskridge and Reddick made Burford’s repairs; that normally
when a repair is not the fault of the sewer, the supervisor
usually will make the repair; that these repairs were not her
fault; and that Burford’s production was not impacted.
Cummings testified that in the past she has made repairs on
work where she was at fault.
Regarding Cummings’ March 13 warning for repairs, Wal-
lace testified that she recalled that the week after the election
Cummings and Beverly Burford had some repairs; that she
was sure that Burford had repairs because she looked at the
number on the bag of items to be repaired and the number
was Burford’s; that Eskridge, Reddick, and Lavelle Pikey re-
paired Burford’s work and Wallace believed that Burford did
not even know that she had these repairs; that Cummings did
her own repairs; that she, Wallace, and Samantha Moody
started to rip out Cummings’ repairs since they were not real
busy and Eskridge told Wallace and Moody to let Cummings
do them since she messed them up’’; that the repairs took
Cummings twice the time that it would have taken her to do
a bundle and so her production was impacted; that she was
not aware of Burford receiving any discipline for her repairs
that week; that the bundles had to be repaired because the
items had the wrong binding on them; and that Reddick,
Eskridge’s assistant, was responsible for choosing the bind-
ing that was used. On cross-examination, Wallace testified
that the week of Cummings’ discharge she had a bundle of
repairs which Eskridge brought back to her, Cummings, tell-
ing her that the wrong binding was on them; and that
Reddick said that the wrong bindings were used on
Cummings’ bags. Eskridge testified that she did not recall
Wallace asking to assist Cummings with her repairs; that
Wallace was not assigned to Cummings but rather Samantha
Moody was assigned to Cummings and that she never told
Wallace not to assist Cummings in making repairs.
With respect to the repairs for which Cummings received
a warning on March 13, Reddick testified that these repairs
did not relate to Cummings being given the wrong binding;
that the repairs were occasioned by Cummings’ poor sewing
technique; that she ripped some of the repairs out so that
they could be redone; that she did not know if anyone else
helped with the repairs that day; that she did not know how
many bags had to be repaired; that Cummings had almost a
bundle of repair work come back; that the week before these
repairs Cummings had been given the wrong binding and on
that day she, Reddick, repaired all six of the bags which
were involved; that under the Company’s policy if a trial pe-
riod operator is given the wrong binding she, Reddick, is re-
sponsible for making the repairs; and that the company’s pol-
icy with respect to repairs is that the operator is allowed to
make five repairs a day and that the operator is required to
make their own repairs.
When called by Respondent, Eskridge testified that one of
the reasons Cummings was a low producer was the fact that
she had repairs; that supervisory personnel in the tops and
bottoms department do help out with repairs; that it is Re-
spondent’s practice to give some of the repairs back to the
trial-period operators so that they are aware of their mistakes;
that this policy was followed with respect to Cummings; and
that to her knowledge, Cummings was never forced to make
all of her own repairs.
With respect to the March 13 warning to Cummings for
too many repairs, Eskridge testified that Cummings had
about 23 or 24 bags coming back in 1 day for repairs and
about 20 the next day; that Cummings signed this warning
and when Cummings signed this warning the only comment
she made to Eskridge was that she, Cummings, was ‘‘try-
ing’’; that she could remember one time when Cummings
might have received the wrong binding and the mistake was
caught by the assistant supervisor after Cummings sewed
about five bags; that Cummings was not penalized when she
was given the wrong binding and that incident occurred
sometime in February; that Cummings made some of the
March 11 and 12 repairs and some of the repairs were given
to another operator, Pikey, who handles repairs; and that she
and Pikey sewed over half of the repairs.
Eskridge sponsored Respondent’s Exhibit 25(a) which is
an employee disciplinary report for trial-period operator
Marvella Brownnlee. The report speaks to a written warning
that Brownnlee received on March 13 for having too many
repairs on March 11 and 12. The report goes on to state
‘‘Marvella’s response was not to even be in the room talking
and that all her repairs were because of machine trouble. She
had a very angry and bad attitude. We tried her machine and
every thing was o.k.’’
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On March 15 Cummings was terminated. She testified as
follows regarding her discharge:
A. Well, I had worked all day and at 3:00, it was
about 3:00, Louise Eskridge walked up to me and she
said ‘‘Linda, we need to see you . . . .’’ that Gary
wanted to see us in the office.
So, I went into the office, and I sat down—No, I
came in, and he said, ‘‘You have a seat,’’ and I sat
down.
He said, ‘‘Well, Ms. Cummings, we have tried you
and we’ve tried you again, but you’re just not getting
any better, you’re having too many repairs, and it’s not
. . . you seem to start going backwards.’’ I said,
‘‘Well, I’ve been having trouble with my machine.’’ I
said, ‘‘it breaks down two or three times out of the
day,’’ and he said, ‘‘Well, I have no report of you hav-
ing trouble with your machine. You’re just not getting
any better, we can’t keep you no longer, we’ll have to
let you go.’’
And I said, ‘‘Oh, well.’’ I said, ‘‘well, it was nice
working with y’all while it lasted,’’ and he said, ‘‘You
have nothing to say,’’ and I said, ‘‘No,’’ and they gave
me my check and I left.
Subsequently, Cummings testified that she was told that she
could come and apply for a job if Respondent was hiring.
Cummings testified that when she began her employment at
Respondent she was given a copy of a document similar to
what was received here in and as Respondent’s Exhibit 2.
One of the paragraphs of Respondent’s Exhibit 2 reads as
follows: ‘‘[f]urther, if at the expiration of (30) weeks you
have still not reached a productive level and have not shown
adequate improvement, we will have no choice but to termi-
nate your employment.’’
Regarding Cummings March 15 discharge, counsel for
General Counsel called a former employee of Respondent,
Willie Mae Starks, who testified that her supervisor at Re-
spondent was Colleen Bonanno; that she worked at Respond-
ent as a side seamer; that she never received any warnings
for low production at Respondent; that she was never coun-
seled by management at Respondent for low production; that
in her October 15, 1990 evaluation she received excellent
and good markings in all categories including performance;
that the involved employee evaluation, General Counsel’s
Exhibit 4, shows that Starks received an excellent in produc-
tivity for the trial period ending October 22, 1990; that she
was working up to production as a side seamer and on a few
days she did make production; that she quit her job because
she became pregnant and she was having trouble doing her
job because of her pregnancy; and that she sent Gary Smith
a note with respect to why she was quitting. General Coun-
sel’s Exhibit 15. On cross-examination, Starks testified that
she never worked in the tops and bottoms department and
she was never supervised by Eskridge. Starks quit Respond-
ent in May 1991. At the hearing herein, counsel for General
Counsel argued that the testimony of this witness and the ex-
hibits sponsored by this witness go to disparity because
Starks gave a specific reason to Gary Smith for quitting and
that reason does not appear in her record. Also, counsel for
General Counsel argued that this woman had a record of low
production, was never disciplined, and did not quit because
of her low production.
With respect to Cummings termination on March 15, Gary
Smith testified, when called by counsel for General Counsel,
that generally when the employee’s trial period is extended
he sits down with the employee and the employee’s super-
visor and makes the employee aware of what their piece rate
average is at that time, what average they are expected to
achieve, and he asks the employee if there is any reason they
are not making production; that prior to terminating an em-
ployee for low production he would have such a counseling
meeting; that with the exception of the March 1 evaluation,
on every evaluation of Cummings before that date,
Cummings came to his office with Eskridge and he and
Eskridge discussed the evaluation with Cummings; that he
investigated why Cummings production slipped; that in the
affidavit he gave to the Board on October 4 he indicated that
he could not be sure he tried to find out why there was a
drop in Cummings production between February 18 and
March 1; that he could not remember whether he did inves-
tigate the reason why Cummings slipped in production be-
tween February 18 and March 1; that when an employee
does have production problems, he generally notifies
Eskridge and Eskridge will write back to him about the prob-
lem; that this was the procedure followed when Rebecca
Knapp’s production dropped because she was having prob-
lems with her machine in October; that there is no note to
file in Cummings’ file or a note from Eskridge in
Cummings’ file indicating that Cummings was having a
problem with her machine; that Knapp’s file also includes a
note from Eskridge dated March 22 indicating that while
Knapp was counseled for production being down for 2 weeks
in a row, she was having extensive machine problems and
had to move sometimes two or three times a day; that
Knapp’s file also includes a memo to file from Gary Smith
dated October 8 indicating that Eskridge informed him that
Knapp was having difficulties with the machine she was
moved to while hers was being repaired; and that when an
employee has problems with her machine it severely impacts
on her production. Gary Smith also testified that normally an
employee’s production comes to him midweek of the follow-
ing week; that the first union election was on March 8; that
he directed Carolyn Beecroft, who does the payroll for Re-
spondent, to make a summary of Cummings’ production for
the week of March 15 early; that normally he would not
have received that report on Cummings until the next week;
that on occasion he has requested Beecroft to give him the
piece rates on a Friday at the end of the workweek; and that
in his discharge interview with Cummings, he explained to
her that he had considered the stress of the union campaign
and he had tried to factor that in regarding lower production
across the board of all employees.
When called by counsel for General Counsel, Eskridge tes-
tified, with respect to Cummings’ termination on March 15,
that generally when she reviews an employee evaluation she
does it with the employee in the cafeteria; that usually she
meets alone with the employee; that sometimes her assistant
is present; that she fills out the employee evaluation and sub-
mits it to Gary Smith and Felsenthal for their input and sub-
sequently she talks with the employee, usually in the cafe-
teria; that she does not always take the employee to Gary
Smith’s office regarding the evaluation; that during the trial
327EARLE INDUSTRIES
period if the employee is progressing she will take the em-
ployee to Smith’s office for a motivational talk but she does
take the employee to Smith’s office every time she gives an
evaluation; and that when she does take the employee to
Smith’s office it is documented and placed in the employee’s
record.
Regarding Cummings’ March 15 termination, Felsenthal,
when called by counsel for General Counsel, testified that he
recognized a document dated September 27, 1985, which re-
fers to Respondent’s employee Dorothy Berry, which docu-
ment indicates that he and Supervisor Glenda McCain spoke
to Berry regarding her lack of production and Berry was ad-
vised that although she had been sewing for over a year, she
had not yet met a productive level, and she had been coun-
seled that she was going to be given one last chance to reach
and maintain a productive level or else she would be termi-
nated; that he believed that Respondent’s probationary period
policies back in 1985 were different with piece rate operators
in particular than they are now; that he did not know whether
Berry had previously completed a trial period; and that Gen-
eral Counsel’s Exhibit 28 is a memorandum from Respond-
ent’s plant supervisor to Berry dated December 9, 1985, in
which it is indicated that Berry had received a prior exten-
sion for 45 days on April 25, 1985, and an extension on June
10, 1985, to reach and maintain production level and that in
December she had reached the production level.
With respect to the termination of Cummings, Corbett,
who, as indicated above, works for Respondent as a me-
chanic, testified that he was familiar with the second sewing
machine that Cummings worked on; that he did not remem-
ber Cummings’ machine experiencing a large number of me-
chanic problems during January, February, or March; that he
could remember working on the machine just once during the
3 or 4 mentioned months, when he adjusted the tension on
the machine; that Cummings’ machine required no more at-
tention than the other machines in the tops and bottoms de-
partment; that he did not recall a time when Eskridge refused
to move any operator while a machine was being repaired;
that if an operator is having problems with her machine, the
normal procedure is for the operator to tell the supervisor
and the supervisor will call him; that he did not recall ever
working on the first machine that Cummings used; that he
was familiar with Isabell Thompson and she was a good op-
erator who knows how to adjust the tension on her machine;
that he knew that Thompson was moved to the second ma-
chine which Cummings used; that he was not aware that
Thompson requested to be moved off that machine because
her production dropped since she was incurring a lot of re-
pairs and that machine was not working properly; that he
was aware that Thompson was moved away from that ma-
chine within a week of being placed on it; and that if
Eskridge did not tell him that Cummings was having prob-
lems with her machine, then he would not have known that
she was having problems. On redirect by counsel for Re-
spondent, Corbett testified that from time to time floor girls
contact him and tell him that an operator is having some
kind of mechanical problems with their machine and that he
did not recall ever being approached by either Samantha
Moody or Earley Mae Wallace with either one of them tell-
ing him that Cummings was having a problem with her ma-
chine. On further cross-examination, Corbett testified that he
was not aware if Virgil Wright ever was written up for going
directly to a mechanic and asking him to fix the machine.
On further redirect, Corbett testified that he did not recall
Cummings ever coming to him and asking him to work on
her machine.
When called by Respondent to testify regarding
Cummings’ March 15 termination meeting, Eskridge testified
that the only statement made by Cummings regarding her
low production was when she said, ‘‘I’ve done all I can do’’;
that no one at the meeting, which included Gary Smith, her-
self and Cummings, mentioned the Union; and that
Cummings never achieved minimum production while she
was working at Earle Industries.
With respect to the trial period of piece-rate operators,
Gary Smith testified that it can extend up to 30 weeks and
Respondent has had some that have gone 35 weeks; that to
get out of a trial period the operator must maintain the mini-
mum production for 4 weeks; that he does take into consider-
ation any problems that a trial-period operator is having with
the machine that the operator is using; that he has terminated
trial-period operators who are not able to achieve minimum
production; that Respondent’s Exhibit 34(a) through (i) are
the production summaries of specified employees who were
hired in 1988, 1989, and 1990 and who were terminated be-
cause they could not meet minimum production; that one of
the employees covered in Respondent’s Exhibit 34 is the sis-
ter-in-law of Respondent’s plant manager; that as dem-
onstrated by Respondent’s Exhibits 35 and 36(a), Cummings
met the minimum production standard only once during her
35 weeks at Respondent; and that, as demonstrated by Re-
spondent’s Exhibits 36(b), (c), and (d) other employees,
namely, Isabell Thompson, Mary Stone, and Eunice Wil-
liams, all used the involved sewing machine collectively ei-
ther before or after Cummings was terminated and all of
them were able to meet minimum production on the involved
sewing machine.
Regarding Isabell Thompson’s use of the involved ma-
chine, Gary Smith testified that, as reflected by Respondent’s
Exhibit 37, Thompson requested to be moved to the ma-
chine, she was not happy with the machine and subsequently
she requested to be moved off the machine; and that a com-
parison of Respondent’s Exhibit 36(c) and Respondent’s Ex-
hibit 37(c) demonstrates that contrary to her impression,
Thompson was making minimum production on the involved
machine.
When called by Respondent, Gary Smith testified, regard-
ing the March 15 Cummings’ termination meeting, that the
Union was not discussed at this meeting; that at the time he
had no personal knowledge as to whether Cummings was a
union supporter; that the Union did not play any role in his
decision to discharge Cummings; and at this meeting he told
Cummings that she would be welcomed back at any time to
fill out an application for a non-piece rate position if it be-
came available; and that to his knowledge Cummings never
subsequently applied for another position at Respondent.
With respect to Cummings’ termination, Gary Smith testi-
fied, when called by Respondent, that in deciding to termi-
nate Cummings he did not take into consideration her March
7 warning or her counseling regarding too many repairs on
March 11 and 12. Also, Smith testified that at no time during
Cummings’ employment was he ever made aware of any in-
formation that her machine was broken or defective in any
way; that Cummings never told him that her machine was
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
defective; that he did see Cummings’ picture in the union
flyer which was distributed on March 8; that the fact that her
name and picture appeared in this document did not play any
role whatsoever in his decision to terminate her; that he had
never seen Cummings’ union authorization card; and that
Cummings still could come and apply for employment at Re-
spondent for a non-piece-rate position.
Gary Smith sponsored Respondent’s Exhibits 38(a)–(c)
which cover a situation where a piece-rate operator was ter-
minated in June 1990 for failure to meet minimum produc-
tion, filed an application with Respondent for a plant position
in July 1990 and was called in August 1990 and rehired by
Respondent. Smith testified that other employees, namely,
Sue Bradley and Martha Crawford, who were formerly piece
rate operators who were discharged for not meeting produc-
tion, were rehired by Respondent into non-piece rate posi-
tions. Smith also sponsored an exhibit, Respondent’s Exhibit
39, which lists 43 employees who were hired between March
25, 1991, and July 30, 1992. The exhibit does not indicate
the positions of those hired.
With respect to Respondent’s policy regarding rehiring
persons who had been terminated in the past, Felsenthal testi-
fied that Respondent has rehired such employees depending
upon their record or their previous work history. Such rehires
include individuals who previously were not able to meet
production rates and they were subsequently hired into a
non-piece rate position. Felsenthal also testified that between
March 15 and the time he testified herein, April 2, 1992, Re-
spondent had hired anywhere in the neighborhood of 75 to
100 employees.
General Counsel introduced a number of production
records, General Counsel’s Exhibit 18, and sewing repair
records for the period January 2 through March 27, General
Counsel’s Exhibit 19. Gary Smith testified that Respondent
did not have a list of the operator numbers for the period in-
volved in General Counsel’s Exhibit 19. Consequently, ac-
cording to Smith, it is impossible to confirm who had repairs
during the involved period of time based on the operator
number. General Counsel also introduced certain of Respond-
ent’s business records designated employee averages, which
documents show the production of named employees, Gen-
eral Counsel’s Exhibits 20 and 21. Regarding General Coun-
sel’s Exhibits 20 and 21, Smith testified that an employee
making $5.60 are individuals who are no longer in a trial pe-
riod. General Counsel also introduced the personnel files of
Willie Mae Starks (G.C. Exh. 22), Judy Stovall (G.C. Exh.
23), and Rebecca Knapp (G.C. Exh. 24). Additional em-
ployee averages documents were introduced by counsel for
General Counsel, General Counsel’s Exhibits 25, 26, and 27.
Smith testified that there should be a reason for a probation-
ary employee to stay at the $4.15 rate in excess of 35 weeks,
and that he could not remember any one doing that.
With respect to General Counsel’s Exhibit 19, Felsenthal
testified that repairs which are caught in the tops and bot-
toms department would not appear in this document since
these repairs are those which are logged in by the finishing
department and this work has already worked its way
through the tops and bottoms department.
On April 16, according to an employee discipline report,
General Counsel’s Exhibit 5(b), Eskridge gave Wallace a
verbal warning for talking and failure to check bags during
spare time. Wallace did not sign the employee discipline re-
port and Eskridge testified that although Wallace did not see
the employee discipline report she, Eskridge, did talk to Wal-
lace about this matter. Wallace testified that she did not see
this employee discipline report, General Counsel’s Exhibit
5(b) before counsel for General Counsel showed it to her.
Eskridge never gave her this warning.
Samantha Moody testified that sometime after the union
campaign began Eskridge told her that the Union tried to get
in once before and failed and the Union was no good and
could not help Moody in any way; that Eskridge said that
Wallace did not know what she was doing and that Wallace
was crazy; and that Eskridge said that one day she was going
to make Wallace crawl before it was over with. Eskridge de-
nied ever telling Samantha Moody that Wallace was crazy or
telling Moody that she, Eskridge, would make Wallace
crawl.
On April 9, Cummings filed a claim with the Arkansas
Employment Security Division for unemployment insurance
benefits, Respondent’s Exhibit 3. Paragraph 12 of the claim
form requests the claimant to ‘‘Explain in detail why you are
no longer working for this employer (emphasis in original).’’
Cummings wrote the following:
I have a certain amount to do in one day or more. And
I could not do it every day. So they let me go. I was
doing the job to the best of my ability.
Paragraph 7 of the claim form asks ‘‘Had you ever been able
to do the job correctly? Yes or No (Circle one). If yes please
explain.’’ Cummings circled ‘‘yes’’ and gave the following
answer: ‘‘I did them right but I did not do enough of them
in one day.’’ And finally paragraph 11 of the form asks ‘‘Do
you feel you were performing the job to the best of your
ability? Yes or No (Circle one) If no, why did you not per-
form your job properly? Cummings circled ‘‘Yes.’’ Nowhere
in the claim form is there any mention of the fact that
Cummings could not make production because allegedly she
was forced to work with a defective piece of equipment.
On May 30 a hearing officer of the Board issued her re-
port on objections in Case 26–RC–7346, Respondent’s Ex-
hibit 1, which involved Earle’s objections to conduct which
allegedly affected the results of the March 8 election which
the Union won. In her report, in which she recommended
that the election conducted on March 8 be set aside, the
hearing officer found that Wallace, who testified for the peti-
tioner or Union at the objections hearing on April 29 and 30
and May 1, gave incredible testimony at that hearing. More
specifically, the hearing officer concluded as follows at pages
33 and 34 of her report:
I do not credit Wallace’s testimony. Throughout her
testimony, she was evasive and argumentative. Admit-
tedly, she was unresponsive to questions because of
what she perceived to be counsel’s purpose in asking
the question. Consistently, I find her answers to be re-
sponsive to what she perceived most advantageous to
Petitioner’s case rather than genuinely factual. Perhaps
because she was the only employee witness presented
by Petitioner, Wallace accepted responsibility for pre-
senting facts in the best light as possible. Nevertheless,
I did not find her to be forthright or spontaneous in her
testimony, and I do not credit her testimony. [Footnote
omitted.]
329EARLE INDUSTRIES
The parties stipulated that the Board adopted the hearing of-
ficer’s report and set aside the first election.
On July 16, according to an employee discipline report,
General Counsel’s Exhibit 5(a), Eskridge gave Wallace a
verbal warning for removing work from another employee’s
horse without permission from the supervisor. Wallace did
not sign the employee discipline report and Eskridge testified
that although Wallace did not see the employee discipline re-
port she, Eskridge, did talk to Wallace about the matter.
Wallace testified that she did not see the employee discipline
report, General Counsel’s Exhibit 5(a), except for when
counsel for General Counsel showed it to her. Eskridge never
gave her this warning. Wallace testified that Eskridge did not
counsel her regarding this matter.
According to Eskridge’s testimony, on July 26 Respond-
ent’s employee Virgil Wright received a written warning,
General Counsel’s Exhibit 17(dd), because she left her sew-
ing machine without telling Eskridge and went to the office
and requested a mechanic; that Felsenthal, Gary Smith, and
Young all came up to her desk and asked her what was
going on; that she told Wright that she was not supposed to
leave her work station and Wright became upset; that she
brought Wright to Smith who explained the proper proce-
dure; and that Wright was a union supporter. The employee
discipline report signed by Eskridge reads: ‘‘Virgil left work
station, went to office without telling supervisor and refused
to move to a machine when asked to do so.’’
On August 30 Wallace signed her annual review form,
General Counsel’s Exhibit 4(e). Her overall score placed her
between the good and excellent ratings. Earlier annual review
forms, General Counsel’s Exhibits 4(a), (b), (c), and (d), gen-
erally contained ratings of either good or excellent. At the
trial herein, one of Respondent’s counsel indicated a willing-
ness to stipulate that Wallace was overall a good employee.
On October 1 the Reverend Jesse Jackson visited Re-
spondent’s facility in Earle. Most of the visit was recorded
on videotape by a television station, Channel 4, and the tape
was introduced herein. (G.C. Exh. 10.) As here pertinent, the
tape shows Jackson arriving at the facility. He walks from
the highway down the driveway to the gate in front of Re-
spondent’s facility where a large group of people, including
Respondent’s employees, is congregated. He shakes hands
with Earley Mae Wallace and then they hug. Wallace and a
number of other individuals are wearing red T-shirts with
white ‘‘Union yes’’ with a check mark on them. Jackson
says a short prayer. Jackson then proceeds to walk into the
plant parking lot with a large flatbed truck being driven into
the parking lot just behind him. Jackson greets a number of
people, shaking their hands and waving to them and then he
gets up on the back of the flatbed truck, which has a micro-
phone which is powered by a gasoline engine generator,
which is also located on the back of the flatbed truck. A
number of people are up on the flatbed truck with Jackson,
including Wallace and a number of other people wearing the
red union T-shirt. Jackson then begins to give a speech. As
indicated by the videotape, after Jackson had been speaking
for approximately 3-1/2 minutes, the chief of the Earle Police
Department indicates to those on the flatbed truck that Jack-
son has 30 seconds and then the generator has to be turned
off or else the chief will have it turned off. Shortly thereafter
the police chief is asked by someone in the crowd if there
is a problem and he, the chief, responds that the person will
have to speak to the manager. The police chief goes on to
indicate that this is private property and they want them off
and ‘‘we’re here to keep the peace so we have to take them
off’’; and that ‘‘manager Gary Smith asked us to take them
off the property.’’ Shortly after that the portable generator is
turned off and Jackson continues to speak without a micro-
phone. The Union’s director of organizing, Dwayne Stillwell,
is then arrested for criminal trespass, handcuffed, and placed
in a police vehicle. The man who drove the truck on to Re-
spondent’s property, Michael Holdway, is also arrested,
handcuffed, and placed in the police vehicle. As he is being
placed in the police vehicle Holdway indicates that he is an
administrative assistant in the Union. The flatbed truck is
then driven off Respondent’s parking lot with a number of
people, including Jackson, still on it. The videotape then
shows Jackson speaking with the two individuals who had
been arrested and placed in a police vehicle, indicating to
them that he would get them out, and he was going to see
the owner and the Governor that day. The police car was
parked alongside the highway. Jackson then proceeds to walk
back from the highway into Respondent’s parking lot. While
he is standing in the parking lot the video shows Wallace
near him at one point. Jackson then begins walking toward
an open door into the plant. As he approaches the door a
woman in a red T-shirt raises her right hand above her head
and makes a fist as she faces in the same direction Jackson
is walking. As Jackson passes her she apparently lowers her
right arm and then raises it again. At this point the tape
shows Wallace is walking alongside Jackson to his left. As
they approach the door, Wallace apparently drops back and
Jackson goes through the employee entrance doorway into
the plant. Another person appears to go through the doorway
just behind Jackson and Wallace then goes through the door-
way. As Jackson proceeds into the plant along an aisleway
he hesitates, stops, and looks back at the employee entrance.
At this point Wallace passes him and then walks in front of
him down the aisleway. She then passes Gary Smith who is
walking in the opposite direction toward Jackson, who is
only a few feet away. Smith holds his left hand up and stops
Jackson, saying, ‘‘[s]orry, you’ll have to leave you’re tres-
passing.’’ A number of people had followed Jackson into the
plant including cameramen. While Smith and Jackson are
talking, the videotape shows Wallace standing a few feet be-
hind Smith. Jackson appears to indicate to Smith that he,
Jackson, is looking for Peter Felsenthal or he may be asking
Smith if he is Felsenthal. Smith tells Jackson that he can go
back out the employee entrance and go around to the front
door of the plant. While he is speaking, Smith motions with
his left hand pointing to the employee entrance and then
makes a semicircular motion to indicate to Jackson how he
would go around from the employee entrance to the front
door of the plant. At this point Wallace states ‘‘front door
locked.’’ She then apparently says ‘‘come on.’’ The video-
tape shows her then changing body position so that she turns
away from Jackson toward the offices and begins to move
in that direction. At this point Smith turns to his left and
speaking over his shoulder, as if to respond to someone be-
hind him, says ‘‘no ma’am.’’ Wallace stops her movement
toward the office. She then turns back around so that she is
facing Jackson and again says ‘‘front door locked.’’ Smith
is again facing Jackson and he points toward the employee
entrance saying ‘‘if you will go back around’’ while Jackson,
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
who was facing away from the microphone, apparently said
something about needing to see Felsenthal. Smith then says
‘‘Mr. Jackson if you will I am asking you politely.’’ At this
point Wallace raises her left arm and points toward the of-
fices and says ‘‘right here.’’ Smith then completes his sen-
tence saying ‘‘go back around’’ to Jackson while he, Smith
is pointing toward the employee entrance. Smith then says
‘‘cameras are to leave now. Okay.’’ Jackson then says some-
thing to Smith who responds ‘‘no sir you go out and go
around the front.’’ Smith again is pointing toward the em-
ployee entrance. Jackson who is facing away from the micro-
phone, apparently says something and Smith says ‘‘you go
out and go around the front.’’ Wallace says, ‘‘yes he’s
here,’’ while she is pointing with her left arm toward the of-
fice area. She then says ‘‘right over there’’ and starts to raise
her right arm which is pointing in the direction of the of-
fices. Wallace then leaves the area of the Smith and Jackson
conversation. Smith says ‘‘Mr. Jackson go out and go around
the front please.’’ Jackson then says something about seeing
Felsenthal. Smith says, ‘‘you may do so if you go out and
go around the front.’’ Smith again is pointing toward the em-
ployee entrance and making a semicircular motion with his
left hand to his left. Jackson then says, ‘‘will you go with
me?’’ Smith replies ‘‘I’ll be glad to show you where it is.’’
Jackson then asks ‘‘will you go with me?’’ Smith replies
‘‘no sir I’ll show you where it is.’’ Again Jackson asks ‘‘will
you go with me?’’ Smith answers ‘‘I’ll take you to the door
and I’ll show you around the front wall okay.’’ Smith then
says, ‘‘you have a problem with that?’’ Jackson replies ‘‘yes.
I want you to go with me.’’ Smith then says, ‘‘no sir. I want
you to go out that way.’’ Jackson, who is facing away from
the microphone, then says something and is pointing toward
the office area. Smith says, ‘‘you are trespassing, now if you
will please sir go that way and go back around the front.’’
Smith continues to point toward the employee entrance. Jack-
son then apparently says, ‘‘I am you’re guest’’ to which
Smith replies ‘‘you are not my guest. If you will go back
around and come to the front door. Okay.’’ Smith then states
‘‘no disrespect. But if you will please go back around.’’
Again Jackson says something which is not picked up by the
microphone, Smith then says, ‘‘I’m not going to argue with
you. Excuse me.’’ Smith turns and walks toward the office
foyer with Jackson following behind. Smith opens the door
between the foyer and the offices and closes it behind him
and Jackson and a number of other people remain in the
foyer. Shortly thereafter, the police chief speaks to Jackson
and he and the other members in his group go out the front
door and wait outside the front door of the plant for a short
period of time. While he is waiting outside, Jackson, in re-
sponse to a questions says, ‘‘I want to talk with the owner
about workers’ legitimate request to organize.’’ Jackson
alone then enters the plant through the front or visitors door.
Sometime later he emerges. Not all of what occurred in the
background is summarized above.
Regarding her October 1 statement on the videotape that
the front door was locked, Wallace testified that when she
got off the flatbed truck and was going through the gate back
onto Respondent’s property she was telling co-workers to
clock in since it was getting close to buzzer time; that she
overheard Fredricka Hill say, ‘‘[w]ell, they’re tripping in the
office, they’ve done locked the door’’; that Hill said she
went to clock her card and her card was not in the slot so
she went to go into the office and the door was locked; and
that she, Wallace, presumed that Hill was talking about the
front door. Wallace also testified that she, Margaret Davis,
Mary Childs, Dorothy Berry, Linda Davis, Marilyn Mathis,
Brenda Cooke and others were on the back of the flatbed
truck when Jackson gave his speech. According to Wallace’s
testimony, Margaret Davis was a union supporter, Linda
Davis was a very active union supporter, and Marilyn Mathis
was an extremely active union supporter. On cross-examina-
tion, Wallace testified that she did not in any way or form
or fashion encourage Jackson to go into the plant or lead him
or suggest to him that he come in or point the way. And re-
garding the above-described videotape of certain events
which occurred on October 1, General Counsel’s Exhibit 10,
Wallace testified, on cross-examination that just before Jack-
son entered the plant through the employee entrance she was
right next to him; that as he went through the employee en-
trance she was behind him; that there is a working area to
the right just inside the employee entrance; that shortly after
Jackson entered the plant through the employee entrance
Gary Smith approached him and they had a conversation;
that while the tape indicates that Smith told Jackson ‘‘sorry
you’ll have to leave, your trespassing,’’ she did not hear him
say that on October 1; that during his conversation with
Jackson, Smith was pointing in the direction of the employee
entrance; that Smith said ‘‘[y]ou can go back out and go
around the front and come to the front door’’; that she then
said ‘‘[f]ront door locked’’; that although the videotape ap-
pears to indicate that she then said ‘‘[c]ome on,’’ she did not
remember saying this; that she said ‘‘front door locked’’ be-
cause shortly before that she heard Hill say that ‘‘[t]hey’re
tripping in there, that got the doors locked’’; that Hill did not
indicate which doors were locked; that Smith might have
been talking to her when he said ‘‘[n]o, ma’am’’ imme-
diately after she said ‘‘front door locked’’; that she then said
for a second time ‘‘[f]ront door locked’’; that she guessed
she interfered with Smith while he was carrying out his job
duties; that at that time she did not know whether the front
door was locked or not; that Smith then told Jackson to go
out the employee entrance and to go around to the front
door, the visitors’ door; that Smith again pointed toward the
employee entrance; that Jackson then turned toward her and
asked her where Felsenthal’s office was and she pointed in
the direction of Felsenthal’s office saying, ‘‘[i]t’s up that
way’’; that she was pointing in a direction which was oppo-
site the direction which Smith was pointing; that when Smith
said ‘‘[n]o ma’am,’’ he said it in a very firm tone; that Smith
was talking when Jackson asked her the location of
Felsenthal’s office; that when she answered Jackson’s ques-
tions, Smith was still talking but since Jackson was talking
to her, she did not pay Smith any attention; that on October
1 during this conversation she realized that Smith wanted
Jackson to leave the plant through the employee entrance;
that at one point, apparently in response to a question of
Jackson, she said ‘‘[y]es, he’s here’’ and then pointed in the
direction of Felsenthal’s office with her right hand; that she
then said ‘‘[r]ight over here’’; that when she said ‘‘[y]es,
he’s here’’ she was pointing with her left hand and she did
not know if she was pointing also with her right hand; that
while Smith and Jackson were engaged in their verbal ex-
change she walked away and went over to the area of one
of the timeclocks; and that she did not clock in until after
331EARLE INDUSTRIES
she saw Smith and then Jackson walk through the plant and
into the foyer just outside the plant office.
With respect to the October 1 visit to Earle by Jackson,
Mathis, who has been employed by Respondent since 1985,
testified that a number of employees were aware that Jackson
would be visiting the plant; that she was not aware, at the
time, of the Respondent having a policy about nonemployees
visiting the parking area; that she was walking behind Jack-
son when he entered through the employee entrance into the
plant; that she, along with Wallace, Carolyn Williams, Leon-
ard Davis, Brenda Cooke, and possibly Betty Childs, was on
the flatbed truck when Jackson spoke; that there were other
employees up on the flatbed truck but she could not remem-
ber all who were there; that to her knowledge, other than
Wallace, no employee was disciplined for anything which
occurred during Jackson’s visit; that in viewing the video-
tape, she believes that employee Blanche Bowers pointed to-
ward the employee entrance just before Jackson went
through that doorway into the plant; that while Smith and
Jackson were talking, an employee of the Respondent whom
she thought was Dorothy Dorsey pointed toward the foyer
and offices; that while Smith and the Jackson were talking,
she left to go to the timeclock area and before Jackson en-
tered into the foyer area she raised her arm in the air which,
according to her testimony, was encouraging Jackson to go
into the foyer and office area; and that as shown by the vid-
eotape, Jackson left the foyer area through the front door of
the plant. On cross-examination, Mathis testified that she was
an extremely active supporter of the Union and she was one
of the more vocal union supporters; that she did not mention
in her November 20 affidavit to the Board anything about an
employee pointing to the employee entrance or, regarding
what occurred in the plant, an employee pointing to the foyer
or offices; that before Jackson entered the plant through the
employee entrance, Bowers pointed her fist in the direction
of the employee entrance but she did not stick her fingers
out; that in describing Bowers’ gestures she, Mathis, was not
relying on her recall of what occurred on October 1 but rath-
er was giving her opinion of what she saw on the videotape
which she viewed while she testified herein; that her testi-
mony that employee Dorothy Dorsey pointed toward the of-
fice foyer while Smith and Jackson were engaged in their
verbal exchange was also based on what she saw on the vid-
eotape while testifying herein vis-a-vis what she recalled of
what occurred on October 1; that Bowers was a union sup-
porter and was wearing a red ‘‘Union yes’’ T-shirt on Octo-
ber 1; that while Jackson was walking to the foyer she had
her closed fist in the air but she was not pointing since her
hand was up but not out and there was nothing in what she
did which would show that she was trying to get Jackson to
come into the office foyer; that she believed that she clocked
in before Jackson went into the office foyer; and that, ac-
cording to the videotape, when Jackson left the office foyer
he went through the visitors’ entrance or the front door to
the plant. Mathis also testified on cross-examination that the
area just inside the employee entrance that Jackson went
through is the twenty pair department where they make
frames for the twenty pair bags; that if you walk through the
employee entrance you are walking right through that depart-
ment but it is a hallway; and that it was a working depart-
ment when the October 1 incident occurred. On redirect,
Mathis testified that Jackson’s October 1 visit occurred dur-
ing the lunchbreak; that the whole plant is shut down during
the lunchbreak; that it is a nonworking time; and that the
hallway in the plant leading from the employee entrance is
a nonworking area. On further cross-examination, Mathis tes-
tified that two buzzers go off in the plant to signal the end
of lunchbreak, one goes off at 11:57 a.m. and the other one
goes off at 12 noon; and that the first buzzer went off while
Jackson was in the office foyer. On further redirect, Mathis
testified that Jackson’s October 1 visit occurred during the
lunch break; that the whole plant is shut down during the
lunchbreak; that its a nonworking time; and that the hallway
in the plant leading from the employee entrance is a non-
working area. Timeclock computer records for October 1 for
Wallace and Mathis, General Counsel’s Exhibit 29, indicate
that both of these employees punched in at 11:57 a.m.
On October 1, according to her testimony, Delores
Knighten heard people saying that the door was locked when
she was at the timeclock. Since Smith and Jackson had al-
ready gone through the doorway separating the timeclock
area from the foyer or lobby she realized that the people
were not referring to that door. She wondered whether they
were referring to the door from the lobby to the offices or
the door from the outside of the plant to the lobby and so
she looked into the lobby area and determined that the door
which was locked was the door leading from the lobby to
the offices. Knighten testified that the lobby is not consid-
ered a working area.
With respect to the October 1 visit of Jackson, Respond-
ent’s employee Joy Chase testified that when Jackson
stopped in the plant aisle to talk to Gary Smith, she went to
the timeclock, clocked in, stood there for a short period of
time and then went to the lunchroom to smoke a cigarette;
and that while she was in the area of the timeclock she heard
Hill say, ‘‘These mother fuckers tripping today. They got the
doors and shit lock.’’ On cross-examination, Chase testified
that she was a well-known union supporter; that she was on
the back of the flatbed truck when Jackson gave his speech;
that she saw Wallace in the area of the timeclock but she
did not see Wallace clock in; that he did not see Marilyn
Mathis clock in; that she heard a lot of chanting, namely
‘‘They don’t want to meet this man. They got the doors and
stuff locked’’; that when she heard Hill’s statement Jackson
was still in the aisle way; and that she heard the first buzzer
ring while she was in the lunchroom.
Respondent’s employee Margaret Davis testified that on
October 1 she was on the flatbed truck when Jackson spoke.
According to her testimony, after the truck was pulled off
Respondent’s premises, she heard a lot of people saying that
the office door was locked. Davis specifically testified at this
point that this occurred before Jackson went into the plant.
On cross-examination, Davis testified that she did not earlier
testify that she heard out in the parking lot someone say that
the door was locked; that she had already clocked in when
she had heard someone say that the door was locked; that
she believed that the door referred to was the door from the
outside at the front of the building into the lobby for no
other reason than she believed that if the door was not
locked Jackson would have come through that entrance in-
stead of the employee entrance; that when she heard that the
door was locked Jackson had already come through the em-
ployee entrance into the plant and was speaking with Smith;
and that the person who said the door was locked was not
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wallace because this remark was made before Jackson made
it that far down the aisle and it was just before the time that
she clocked in.
Regarding Jackson’s visit to the plant on October 1, Hill
testified that she was present during the incident involving
Jackson; that she did not say that day that ‘‘These mother
fuckers tripping. They don’t want to meet the man because
they have the doors locked’’; that when she was told that 12
people could swear that she made this or a similar statement,
she said that they could pay her gas bill for her; that when
asked if she was inferring that she might loose her job, she
testified ‘‘[w]ell, not exactly loose my job. It’s just that like
if the work gets slow and I’m by myself, I’m trying to make
it by myself, you know, that I can get caught up you know
financially’’; that for the first time in the 11 years that she
has worked for Respondent she returned from her lunchbreak
on time to find that her timecard was not in the rack; that
she told her assistant supervisor, Keith Weaver, who said that
he would take care of it; that during the time that she was
out in the parking lot before Jackson went into the plant, she
did not say anything about any door being locked; and that
she does not have a propensity to use profanity in the plant.
Weaver corroborated Hill regarding what occurred with re-
spect to her timecard on October 1. Weaver also testified that
he has heard Hill used ‘‘cuss words’’ in the plant but that
he has never heard her say ‘‘mother fucker’’; that he has
heard Hill say things like ‘‘tripping’’; that Hill never wore
a union T-shirt; that in the past 10 years he has never had
to arrange for Hill to have her card punched; that he did not
know of anyone else having a problem getting their card
punched that day; that he went to the front office and told
a secretary, Carolyn, to punch Hill in; that he has never had
to do this for another employee coming back from a normal
lunchbreak; that normally it would be something that the em-
ployee could take care of herself and he normally would not
have to be involved; and that considering what occurred,
Hill’s timecard would be stamped sometime after 12:15 p.m.
that day.
Regarding the incidents of October 1, Felsenthal testified
that the Company has always had a policy of not permitting
non-employees into the plant without express authority; that
there is an ‘‘Employee Only’’ sign posted just outside the
door which Jackson came through on October 1; that with
the exception of what is posted by the door, there is no writ-
ten policy regarding nonemployees in the plant; that the pol-
icy has been in effect since he began working at Earle; and
that he thought there had been occasions where specific em-
ployees were talked to about the policy and it is just com-
mon knowledge that nonemployees are not permitted in the
plant without authorization. On cross-examination, Felsenthal
testified that he instructed Smith to remove Jackson from the
plant because at that point in time he, Felsenthal, was con-
cerned that Jackson was going to go wandering in the plant
and visit with employees and he, Felsenthal, was not aware,
at that time, that Jackson entered the plant to see him.
Felsenthal testified further on cross-examination that Jackson
raised a number of topics during their 30- to 45-minute dis-
cussion, including health insurance, working conditions, the
need for the employees to be organized, an election date,
matters of policy and working conditions, and various docu-
mentation that was required for absences. On redirect,
Felsenthal testified that on October 1 during his meeting with
Jackson, Jackson said with respect to the two union organiz-
ers who had been handcuffed and arrested that ‘‘It would be
in your best interest to have these individuals released, be-
cause I don’t think you want to make more of a media issue
out of this, than it already is.’’ Felsenthal testified that he did
not believe that he had any other choice and told the police
chief that he did not intend to press charges. On further
cross-examination, Felsenthal testified that he made a con-
scious decision not to discipline Mary Dorsey who was
pointing toward the offices on October 1, as evidence by the
videotape; that documents were prepared regarding the inves-
tigation of Wallace; that documents were prepared regarding
the investigation of Mathis; that the only thing in the record
pertaining to Mary Dorsey was a memo of Gary Smith which
made reference to Dorsey indicating that he talked to Dorsey
during his investigation; and that he, Peter Felsenthal, did not
recall any other specific documents.
With respect to what occurred on October 1, Respondent’s
employee Maggie Lucas testified that she had just clocked in
and was walking back away from the timeclock when she
saw Jackson, Wallace, and Gary Smith; that while Smith and
Jackson were talking, Wallace left the group, went up to the
door leading into the foyer, motioned for Jackson to come
on and said ‘‘It’s this a - way, the office is this a - way’’;
and that the motioning involved Wallace utilizing her right
hand with an upwardly turned palm coming towards her
body. On cross-examination, Lucas testified that she was
about 32 feet from the timeclock when she saw Wallace; that
she did not know if Mathis was near Wallace; that she did
not know who was around Wallace at the time; and that she
was able to observe both Jackson and Wallace by turning left
and then right. Lucas further testified that when she observed
Wallace by the entrance to the foyer she was about 10 to 15
feet from Jackson and Smith.
Regarding October 1, Respondent’s employee Francis
Jones testified that she was standing by the lunchroom door
when Jackson and Gary Smith were conversing; that she saw
Wallace walk away from the group in the aisle and proceed
to the door leading into the foyer; that Wallace motioned to
Jackson with both hands with palms raised motioning toward
her body; that at that time Wallace said ‘‘This is the office
door this a - way’’ and ‘‘Come this a - way’’; and that Wal-
lace was standing about 8 to 10 feet from the office door
when she made these motions. On cross-examination, Jones
testified that Lucas was standing with her during this inci-
dent; that she was standing about 10 feet from Jackson and
Smith; and that Wallace was standing there alone but there
were some people who came up behind her. Jones further
testified that while Wallace stood near the door to the foyer,
she was motioning and clapping her hands.
Respondent’s supervisor, Jimmy Farmer, testified that on
October 1 he saw Assistant Supervisor Keith Weaver near
the timeclock by the office; and that Weaver told him that
he was going to the office to check on Hill’s timecard. On
cross-examination, Farmer testified that he saw Weaver about
5 or 10 minutes after lunch, which was when Jackson was
outside the building.
Regarding Jackson’s October 1 visit to Respondent’s plant,
Bobbie Brown, who became an assistant supervisor at Earle
sometime after the October 25 election, testified that she saw
Jackson come back onto Respondent’s property after the flat-
bed truck had been driven off; that when Jackson came back
333EARLE INDUSTRIES
onto Respondent’s property with a group of people it ap-
peared to Brown that Wallace was leading Jackson into the
plant; that apparently Jackson did not know where he was
going so she just assumed that Wallace was showing him to
a destination where he, Jackson, was trying to get in; that as
you enter the plant through the involved doorway, you are
in a working area, namely, the wire department; and that
subsequently she heard some of the employees say that Wal-
lace led Jackson, apparently, into the office area. On cross-
examination, Brown testified that if she had given a state-
ment regarding the October 1 incident she would have men-
tioned what she had heard. When counsel for General Coun-
sel asked her if she ever had been asked questions by man-
agement about the October 1 incident, Brown asked if she
had to answer the question. Subsequently Brown testified
that she did give a statement to Respondent’s management
about the October 1 visit of Jackson. Her three-page, undated
statement is included in General Counsel’s Exhibit 8. The
statement makes no mention of what she allegedly heard em-
ployees say regarding Wallace leading Jackson to the office.
Brown testified that Smith asked her to submit a written
statement and she may not have submitted it until weeks
after Jackson’s visit. The second line of Brown’s statement
indicates that Jackson’s visit occurred on September 2. With
respect to the events of October 1, Cassandra Cummings
Riley, who took the married name of Riley in March 1992,
was employed at Burger King at the time of the hearing
herein, and was subpoenaed by Respondent to testify herein,
testified that the statement she gave to Respondent on Octo-
ber 17, General Counsel’s Exhibit 7(d), is true; and that this
statement contains the following sentence:
On October 1, 1991, I was standing outside the em-
ployee entrance. I heard Jesse Jackson say he wanted
to talk to Peter and Earley Wallace said come this way
and Earley Wallace showed him the way inside the
building.
Further, Riley testified that after Jackson was driven off Re-
spondent’s property while on the back of a flatbed truck, he
returned to Respondent’s property; that Jackson was going
toward the visitors’ entrance, which is the front entrance to
the building, and Wallace grabbed his arm or locked arms
with him and proceeded toward the employee entrance; that
the physical contact between Wallace and Jackson lasted for
a second or two; that she personally observed this physical
contact; that she overheard Jackson saying that he wanted to
see Peter and Wallace saying, ‘‘Come this way’’; that Re-
spondent has a rule about visitors coming into the plant,
namely, that any visitors are to use the visitors’ entrance,
which is the front entrance; and that Mary Smith told her
about this rule when she was employed at Respondent. On
cross-examination, Riley testified that no one in Respond-
ent’s management spoke to her before October 17 regarding
the events of October 1; that she was not 2 to 3 feet away
from Jackson and Wallace when the latter grabbed the
former’s arm, as she, Riley, testified on direct but rather she
was approximately 15 feet away from Jackson and Wallace
when the physical contact occurred; that there was a lot of
noise when Jackson re-entered the parking lot; and that in
her opinion, there were more than a 100 people in the park-
ing lot during the Jackson visit. On redirect, Riley testified
that she may have been mistaken on cross-examination when
she testified that the physical contact between Jackson and
Wallace occurred after Jackson stopped in the parking lot,
turned toward the entrance to the parking lot and motioned
for someone to come forward; and that the physical contact
between Jackson and Wallace could have occurred before
Jackson made his above-described motion. Gary Smith testi-
fied that he did not believe that Cassandra Cummings Riley
ever told him that she saw Wallace lock arms with Jackson
on October 1.
When called by Respondent, Gary Smith testified, with re-
spect to what occurred on October 1, that Respondent’s man-
agement became aware that there was a truck in its parking
lot; that Felsenthal asked him to go out and investigate; that
he reported back to Felsenthal who told him to ask the police
chief to ask the people to leave; that he went back out to
the parking lot and asked the police chief to have them get
the truck off the parking lot since they were blocking traffic
and trespassing; that at this time one of the individuals with
Jackson’s party asked him, Smith, if he could just give them
a couple more minutes; that he told the individual that he
had to leave then since he was trespassing; that he then told
the police chief that they had 30 seconds to get the truck off
Respondent’s parking lot and when the 30 seconds were up
he told the police chief that the time was up and that he
needed to get them off; that when the truck was driven off
the parking lot he went back into the plant and was talking
with Felsenthal when he was informed that Jackson had en-
tered the plant; that he went to stop Jackson from coming
into the plant; that when he had broke off his discussion with
Jackson in the aisle of the plant he did not ask Jackson to
follow him; that while Wallace appeared to be telling Jack-
son that the front door was locked, to his, Smith’s, knowl-
edge the front door was not locked; that the front door is
never locked at that time of day; that just inside the involved
employee entrance, work is done on both sides of the aisle;
that while he was attempting to get Jackson to leave, Wal-
lace was encouraging him to come on and this was insubor-
dination; and that afternoon after the incident he felt some-
thing had to be done regarding Wallace’s action and while
he had not ruled out the possibility of discharge, he felt that
she had to be disciplined and he thought that she needed to
be suspended.
With respect to Jackson’s visit and its aftermath,
Felsenthal testified, when called by Respondent, that during
the afternoon of the incident he and Gary Smith discussed
the fact that Smith believed that Wallace had interfered with
his efforts to have Jackson cease his trespass and leave the
facility and that it was then decided to investigate the whole
incident further. On cross- examination, Felsenthal testified
that he recalled a Caucasian gentleman with a beard standing
behind Gary Smith when Smith was talking to Jackson; that
the individual in question does not work for Respondent; that
the individual in question was not there at Respondent’s invi-
tation; that if Respondent’s employee Dorsey was pointing to
the office area while in the proximity of this gentleman, he,
Felsenthal, did not know if she was frustrating anyone’s ef-
forts to have Jackson and other nonemployees leave the
plant; that he would not state that the mere act of pointing
to the front office door would be a violation of company pol-
icy; that he did not know who might have asked Dorsey that
question; that he did not know after viewing the video at the
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hearing herein, that he reached any determination from look-
ing at what he saw on the video; that if someone was merely
pointing he certainly did not think that it would have been
an action that would have been frustrating Smith’s efforts to
have Jackson leave the plant; that Smith was trying to get
everybody that was a nonemployee out of the plant; that at
the outset he directed Smith to go out and try to have Jack-
son and all nonemployees removed from Respondent’s park-
ing lot; that when he was notified that Jackson was in the
plant, he told Smith to go into the plant, tell them that they
were trespassing and ask them to leave Respondent’s prop-
erty; that he told the police chief that Jackson could remain
in the foyer as long as he wanted or Jackson could see him,
Felsenthal, in the absence of any media; and that he met with
Jackson for 30 to 45 minutes.
On October 2 Earle filed a charge in Case 26–CB–2879
against the Union alleging a violation of Section 8(b)(1)(A)
with respect to what occurred on October 1.
By a two-page memo dated October 3, Gary Smith sum-
marized for Felsenthal what occurred on October 1 with re-
spect to the visit of Rev. Jackson. The second page of the
memo includes the following paragraph: ‘‘During this entire
period Earley Wallace kept encouraging Rev. Jackson
through activities and comments, to walk further through the
plant to the front office against my instructions.’’
On October 5 Felsenthal received a videotape from Chan-
nel 4 of the October 1 incident. General Counsel’s Exhibit
10.
On October 6, a Sunday, Felsenthal reviewed the video-
tape with one of the attorneys representing Respondent here-
in, Jeff Weintraub. Felsenthal testified that most of the dis-
cussion regarding the tape revolved around the filing by
Earle of a charge with the Board against the Union with re-
spect to what occurred on October 1. That evening Felsenthal
telephoned Gary Smith and again discussed the October 1 in-
cident. Felsenthal testified that he did not advise Smith dur-
ing this telephone conversation that he, Felsenthal, had a vid-
eotape. During the telephone conversation, Smith indicated
that Wallace had been quite insubordinate to him and that se-
rious disciplinary action was warranted, possibly termination.
It was decided that Felsenthal and Smith would meet with
Wallace on Monday, October 7. Felsenthal testified that at
this point in time he had determined that termination was
warranted under the circumstances but he had not reached a
final decision.
When called by Respondent, Gary Smith testified, regard-
ing his telephone conversation with Felsenthal on October 6,
that Felsenthal asked him what he had observed during the
incident and how he felt about what had happened; that
Felsenthal also asked him what did he think needed to be
done; and that he told Felsenthal that they needed to speak
to Wallace and ‘‘hand out some kind of discipline. At least
a suspension.’’
On October 7 Felsenthal interviewed Wallace. Gary Smith
and Eskridge were also present. The interview was conducted
in Smith’s office. Unknown to Wallace, the interview was re-
corded. A tape recording of the interview was received here-
in as General Counsel’s Exhibit 11 and a transcript of the
tape recording was received herein as Joint Exhibit 1.
Felsenthal testified that he did not personally interview any
other employee regarding the involved incident with con-
ducted other interviews. At first Wallace refused to answer
Felsenthal’s questions, indicating that if she was going to be
accused of something, she had a right to have an attorney
present. Felsenthal indicated that he would allow her to have
a fellow worker present but Wallace indicated that she was
not going to answer any of the questions. Later in the inter-
view, Wallace stated that she was not refusing but that she
didn’t understand exactly what Felsenthal was up to and that
she would not answer the questions. When Felsenthal ex-
plained that he believed that Wallace interfered with Smith’s
management authority, that she was insubordinate, that she
assisted a nonemployee against company policy to enter the
plant through an employee entrance, and that a number of
employees were scared and had their work interfered with,
Wallace said ‘‘[d]idn’t you see the film and the video?
Felsenthal replied, ‘‘I saw what was on TV and that was it.’’
The transcript of the interview is attached hereto as Appen-
dix C. During the interview Wallace stated that she did not
indicate to anybody that the front door was locked; that she
did not at any time motion or encourage Jackson; and that
she did not know it was against company policy for non-
employees to be out in the plant since she sees nonemploy-
ees come into the plant without authorization through the
side door, which is the employee entrance. During the inter-
view Wallace stated that, with respect to the conversation be-
tween Smith and Jackson, there was so much noise she was
not paying attention to Smith and she did not know what
Smith was saying. At another point when she was asked if
she heard Smith tell Jackson that he was trespassing, Wallace
said that she was not going to answer ‘‘those questions. I’m
going to get me a lawyer.’’
Wallace testified that at no time before the tape recorder
was used was she told or warned that refusing to cooperate
in this investigation would result in her discharge. On cross-
examination, Wallace testified that initially she refused to an-
swer any questions because she believed that she was being
set up; that she did not understand the purpose of
Felsenthal’s questions on October 7 although she did under-
stand the questions themselves; that when she told Felsenthal
on October 7 that she did not have anything to say to Smith
or Jackson while they were in the plant, what she actually
meant was that she did not remember; that Felsenthal told
her during the meeting that if she refused to cooperate, it
would be a violation of company policy; that she stated dur-
ing the meeting that she did not indicate to anybody that the
front door was locked; that she stated during this meeting
that she did not at any time motion or encourage Jackson be-
cause she did not remember whether she did it or not; that
while she did not believe at the time that she was interfering
with Smith’s efforts, after viewing the videotape she realized
that her conduct was a lot worse than she thought at the
time; that at the time of the meeting with Felsenthal she did
not know it was against company policy for nonemployees
to be coming into the plant area and after she was fired she
read the handbook and saw this policy statement; that she did
not recall reading this in the handbook before she was fired;
and that although she told Felsenthal on October 7 that she
did not know of anything she did or said which interfered
with Smith’s efforts, on reflection she realizes that while she
was not trying to interfere, she did. On redirect, Wallace tes-
tified that Felsenthal did not tell her at the meeting that he
was tape recording what was said; that he did not warn her
at any time that what she said would be used in a discharge
335EARLE INDUSTRIES
against her; that he did not tell her that it was a disciplinary
interview; that Felsenthal said that he saw what was on T.V.
and that was it and he, Felsenthal, did not tell her that he
had reviewed the Channel 4 videotape in depth before meet-
ing with her; that Felsenthal did not allow her to view it; that
she has a history of being discharged from this Company for
union activity; and that this was a concern of hers when she
went into this interview.
On October 7, according to the testimony of Felsenthal,
when he was called by Respondent, he and Gary Smith
looked at the videotape, General Counsel’s Exhibit 10, or if
Smith did not see it at that time he, Felsenthal, discussed the
content of the videotape with Smith. Felsenthal testified that
he and Smith, before interviewing Wallace, did not discuss
anything about Wallace’s union position or that union status
would be a factor in any discipline or discharge; and that he
did not make any such statement to anyone else. According
to his testimony, Felsenthal conducted the interview because
Gary Smith was involved in the incident under investigation
and he, Felsenthal, wanted to be as objective as possible in
the handling of this matter. Felsenthal testified that he and
Smith decided to record the interview of Wallace, without
her knowledge, so that there would be a record from which
to prepare a memo, because it was believed that a charge
would be filed with the Board if some disciplinary action
was taken against Wallace. Also, Wallace assertedly had
shown a propensity to be untruthful in testimony and Board
proceedings, as evidence by Respondent’s Exhibit 1, and he
wanted to protect the Company. Felsenthal testified that often
Smith records employee interviews for purposes of having a
record so that he can create a file memo; and that its a fairly
regular practice by Smith. Prior to his interview with Wal-
lace, Felsenthal reviewed her personnel file and in doing so,
read some documentation with respect to alleged strike mis-
conduct by Wallace in 1982, which conduct she denied.
Felsenthal began working at Respondent in 1981 as vice
president. He testified that in 1980 or 1981 before he began
working for Respondent, he attended a Board hearing involv-
ing Wallace while he was a staff attorney in the Social Secu-
rity Administration working in the same building in Mem-
phis, Tennessee, where the hearing was held. Felsenthal also
worked for a law firm in Memphis, in which the firm rep-
resented labor unions and individual employees. He testified
that he had decided, before his interview with Wallace, that
depending on her responses, she might not be terminated
after the investigatory interview; that one thing he looks for
in his investigatory interviews is the degree of cooperative-
ness and truthfulness of the individual being interviewed, the
degree of repentance, their understanding of the wrongdoing,
and their acknowledgement that what they did was wrong.
According to Felsenthal’s testimony, there were times when
he felt during the interview of Wallace that she was lying.
In terms of repentance, Felsenthal testified that he was look-
ing for repentance with respect to her own conduct of bring-
ing Jackson into the plant, leading and encouraging him into
the facility and significantly interfering with the management
authority of Smith, by acting in an insubordinate manner to-
ward Smith and engaging in conduct that had the effect of
scaring at least one employee, and interfering with the work
of other employees, particularly in the office. After the inter-
view of Wallace, Felsenthal and Smith concluded that they
would discuss the matter the following day and reach a final
decision. On cross-examination, Felsenthal testified that the
statements in Wallace’s personnel file regarding her alleged
1982 strike misconduct were not sworn statements; and that
he honestly did not know if a strike misconduct charge was
ever filed.
It is noted that with respect to the documents Felsenthal
testified he reviewed in Wallace’s personnel file before de-
ciding to record her interview, that Respondent’s Exhibit 22
as contained in the original exhibits appears to be a duplicate
of Respondent’s Exhibit 21. However, Respondent’s Exhibit
22 is described with sufficient particularity in the transcript
in that it is indicated therein that Wallace denied the specific
strike misconduct.
Also on cross-examination, Felsenthal gave the following
testimony with respect to Wallace’s October 7 interview:
Q. BY MS. SPEER: (Resuming) At one point in this
conversation, you asked her—you told her that you
were investigating it, and anyway she tells you. ‘‘Well,
you seen it, didn’t you see the film and the video?
Didn’t you see them walk in together?’ and you re-
spond, ‘‘I saw that, I saw what was on T.V. and that
was it.’ That’s the total truth to you, isn’t it?
I think I testified before that that’s the case. Ms.
Speer, this was an event that was, that was in public,
that was . . . [filmed] extensively. It was not my intent,
or it was my intent not to present the video that I had
to Ms. Wallace. I think I’ve testified to that.
Q. But you didn’t testify that you lied to Ms. Wal-
lace during this investigation, did you?
A. That I lied?
Q. You did lie to Ms. Wallace didn’t you? That’s a
‘‘yes’’ or ‘‘no’’ answer, Mr. Felsenthal. You lied to
her, didn’t you?
A. I did not indicate to Ms. Wallace that I had this
particular video. I don’t know if Ms. Wallace had it or
not.
There were, there were—The news media was all
over this event. It was—I don’t—There were portions
of the tape that I had that were on the News, there were
numerous other News stations. This was not some kind
of ‘‘Candid Camera’ episode here. There was no intent
on my behalf to trick Ms. Wallace, or to entrap Ms.
Wallace.
I merely, I asked Ms. Wallace questions relating to
the specific conduct that we believed that she had en-
gaged in. I solicited answers, or solicited responses
from her. But this was not an attempt to trick Ms. Wal-
lace, or to deceive Ms. Wallace, to trap her.
JUDGE WEST: According to what Counsel for Gen-
eral Counsel just read into the record, apparently the
transcript states that you responded: ‘‘I saw what was
on T.V. and that was it.’
Does that accurately state what is in the transcript?
THE WITNESS: I think that does, yes.
JUDGE WEST: Is that the truth?
THE WITNESS: I had seen more than what was on
T.V.
JUDGE WEST: So, then, that was not the truth.
THE WITNESS: The fact that I had seen the video.
JUDGE WEST: And that was it.
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE WITNESS: And that was it. That was my re-
sponse, at the time.
JUDGE WEST: So, that was not the truth.
THE WITNESS: In reading that, it certainly can be
construed as not the truth.
BY MS. SPEER: You also state, ‘‘I don’t know what
went on,’’ but you knew exactly what had went on.
You had viewed the video numerous times. You had
viewed it on your own, you had viewed it in the pres-
ence of counsel, you had stopped it, you had studied
that video. You knew pretty much exactly what went
on, didn’t you?
I didn’t know what—on—I knew what went on, but
not by my physical presence at the time it occurred, but
in my—yes, as you say, with respect to the video, and
in respect to the other evidence that I had, yes, I knew,
I had known what went on.
Felsenthal also testified on cross-examination that if Wallace
had shown some remorse or repentance during her October
7 interview or if she had admitted the wrongdoing, she might
not have been discharged.
In a file memo dated October 7, Respondent’s Exhibit 20,
Peter Felsenthal briefly summarized what occurred between
October 1 and the night of October 6.
When called by Respondent, Gary Smith testified, with re-
spect to October 7, that he saw the involved video and after
viewing it he talked with individuals that he saw in the video
who were in the background during his discussion with Jack-
son; that he talked with employees Joe Blockman, Michelle
Smith, and Debbie Evett; that he spoke with employee
Marilyn Mathis either that day or the next day; that he re-
ported back to Felsenthal and it was decided that they needed
to speak Wallace; that Felsenthal compiled some questions
and they met with Wallace that afternoon in the presence of
Eskridge; that he spoke with Maggie Lucas and Frances
Jones on October 7 prior to meeting with Wallace; that he
taped the Wallace interview because previously he attended
a Board hearing at which Wallace testified and he had ob-
served that she was not truthful; that he has taped employee
interviews in those situations where he has questioned
whether the employee will tell the truth or not; that he does
not have a practice of recording employee investigatory
meetings based on union sympathies of the particular em-
ployee; that he has never taped a meeting because the em-
ployee was a prounion employee; that he has recorded an
interview with a supervisor; that he may have spoken to
Evett and other employees a second time later in the month;
that Wallace would not answer questions during her meeting
with Felsenthal, himself, and Eskridge; that after the Wallace
interview he and Felsenthal discussed the fact that Wallace
was uncooperative in not answering the questions and they
discussed the possibility of terminating Wallace; that up to
that point, while they had discussed the fact that Smith
thought that a suspension was appropriate, a firm conclusion
had not been reached; that after the Wallace interview he felt
that if she was not going to cooperate, then he saw no need
in keeping her as an employee of Respondent; that he and
Felsenthal discussed the probability that a Board charge
would be filed but they decided that this would not be dis-
positive; that they did not reach a final decision regarding
Wallace that day; that he did not feel at that point that Wal-
lace had shown any remorse; that he and Felsenthal dis-
cussed the fact that nothing of this magnitude with an em-
ployee had occurred at this Company, namely, bringing in
such an individual and having such an impact on the work
force; that the Respondent has never permitted an employee
to bring an attorney into an investigatory interview since he
had been there; that Respondent does not have a policy of
presenting all of the evidence that the Company may have
against the particular employee to the employee during the
investigatory interview with the employee; that the Company
approaches investigatory interviews on a case-by-case basis,
sometimes presenting the evidence to the employee and
sometimes it does not present the evidence to the employee;
and that Wallace was suspended pending the investigation.
With respect to the October 7 interview of Wallace by
Felsenthal, which interview Eskridge attended, Eskridge testi-
fied that at the time she did not know that the interview was
being recorded; that she was aware of the fact that Smith had
recorded other meetings in the past; that she thought Smith
tended to record meetings when the employee was capable
of being untruthful; and that to her knowledge, Respondent
does not record investigatory meetings only of union sup-
porters. Eskridge testified further that Respondent has always
had a rule allowing employees only in the work area in the
factory; that nonemployees are allowed to go to the foyer;
that she once saw nonemployees in the plant, namely the
Moodys; and that Barbara Moody took the Moodys back to
the front of the plant. On cross-examination, Eskridge testi-
fied that before Jackson’s visit there had not been a paper
posting of any rule with respect to nonemployees in the plant
other than the ‘‘Employees Only No Solicitation’’ sign out-
side the employee entrance door.
On October 8, Wallace was terminated. Felsenthal testified
that he consulted with Personnel Manager Gary Smith but
the ultimate decision was his, Felsenthal’s. Wallace, then
named Earley Morton, was discharged by Respondent and re-
instated pursuant to a Board settlement dated October 23,
1978. (G.C. Exh. 9(b).) Also, Wallace, then named Morton,
was discharged by Respondent and reinstated pursuant to a
Board decision and order dated March 22, 1982. (G.C. Exh.
9(a). Felsenthal testified that he was aware that Wallace was
reinstated on two separate prior occasions because she had
been discharged for union activity.
Gary Smith testified that on October 8 he telephoned Wal-
lace and informed her that as a result of the investigation Re-
spondent was terminating her employment; that before call-
ing Wallace he met with Felsenthal that morning and they
jointly decided to terminate Wallace; that they reasoned that
Wallace had not been cooperative in the investigation and
she had shown no remorse; that to show remorse, she would
have had to apologize for doing it; and that he prepared Gen-
eral Counsel’s Exhibit 7(a) which is a file memo from
Felsenthal dated October 8 relating to the termination of
Wallace.
Wallace testified that when she was discharged on October
8, she was told that she was being discharged because she
was guilty of leading an unauthorized person into the build-
ing. Wallace had worked for Respondent for 16 years. She
testified that she was a key organizer for the Union. Wallace
also testified that during the involved campaign she wore
union T-shirts every day and she wore union buttons; that
her past evaluations had been good to excellent and that she
337EARLE INDUSTRIES
had not been disciplined, to her knowledge, in the year be-
fore her most recent termination; and that Peter Felsenthal
came with his parents to the Board hearing over one of the
firings.
When called by General Counsel, Felsenthal gave the fol-
lowing testimony regarding the discharge:
Q. What were the reasons for her—What was the
justification for her discharge?
A. There were a number of reasons. One of the rea-
sons was Ms. Wallace’s action of assisting and encour-
aging a non-employee third party, that being Reverend
Jackson, into our facility, into our plant. Encouraging
him to remain there, and also proceed through our facil-
ity into the front office area, through the ‘‘Employee
Only’’ entrance.
Another reason was her actions and conduct had the
effect of coercing and interfering with employees, par-
ticularly employees in the office area, and also one em-
ployee, in particular, that I’m aware of, as far as scar-
ing that employee, when Ms. Wallace and Reverend
Jackson came into the plant through the ‘‘Employee
Only’’ entrance.
Another reason would be her insubordinate conduct
toward Personnel Manager, Gary Smith. Her actions
undermined his efforts to have Reverend Jackson re-
moved from the plant, and those actions were persist-
ent, in spite of Mr. Smith’s intents to have Reverend
Jackson, as a third party trespasser, removed from the
facility.
The fourth and final reason, and this is probably the
most significant reason—well, it is the most significant
reason of the four—and it is her conduct in an inves-
tigatory interview, her conduct of being uncooperative,
her conduct of refusing to answer questions although
she eventually did answer some questions, and above
all, her conduct of being untruthful in that investigatory
interview.
Q. So, those were all the reasons?
A. Those are the reasons, the primary reason, again,
being her active—of her dishonesty toward the com-
pany and myself, Gary Smith, and Louise Eskridge,
who was present in there—lying to us, being untruthful
with us, and being uncooperative in that session.
Q. So, are you saying that but for her conduct during
the investigation you would not have discharged her?
A. I felt, going into that investigation, into that meet-
ing, I had not yet determined what action would be
taken. I went into that meeting with an open mind. I
knew and felt that the circumstances prior to that inves-
tigatory interview, were serious, and justified serious
disciplinary action, possibly termination.
I am convinced though that absent that last reason,
the reason being her conduct in the investigatory inter-
view, that the discharge would not have occurred.
I don’t think I would’ve felt comfortable terminating
Ms. Wallace, absent that last reason, particularly if Ms.
Wallace had not lied to us, had been cooperative, had
repented, had indicated her wrongdoing, and had agreed
not to engage in that kind of conduct again. That didn’t
happen.
Q. So, her significant interference with the Personnel
Manager’s authority, and her actions in an insubordi-
nate manner towards said authority, would have just led
to what kind of discipline?
A. Assuming that she cooperated in the interview,
perhaps—
Q. (Interposing) No, not assuming that at all. Just as-
suming that you know that on October 1st, you per-
ceived her as being insubordinate, what would that have
resulted in?
A. I think, as I said, I feel like those circumstances
could have warranted termination. The act of insubor-
dination, the act of undermining the authority of man-
agement personnel was very serious. I said earlier that
I didn’t know if I would feel comfortable terminating
her under those circumstances, if she had cooperated in
the investigatory interview.
I tried to look at, or consider what I felt our past
practices were, and our past practices, I think, reflect
that if an employee understands the wrongdoing, is
honest with us, and acknowledges that what they en-
gaged in was wrong, we have, we have been somewhat
forgiving under those circumstances.
So, absent, absent different conduct in the investiga-
tory interview, with different conduct in that investiga-
tory interview, the circumstances, I believe, may have
been different.
I didn’t have an opportunity to really seriously
evaluate that prior to the investigatory interview, be-
cause it hadn’t taken place.
A file memo dated October 8, General Counsel’s Exhibit
7(a), states that Wallace was terminated for the following
reasons:
1. Ms. Wallace significantly interfered with our Per-
sonnel Manager’s management authority and acted in a
very insubordinate manner toward such authority.
2. Ms. Wallace not only assisted but encouraged
non-employees in the violation of a company policy,
namely, entering and remaining in the plant without au-
thority.
3. Ms. Wallace assisted and encouraged conduct that
had the effect of scaring other employees and conduct
that interfered with the work of employees (i.e., office
employees).
Further on October 7:
4. Ms. Wallace failed to cooperate with a company
investigation regarding her conduct and actions.
Felsenthal testified at the trial hearing that the failure to co-
operate encompasses Wallace’s conduct of being untruthful.
Peter Felsenthal’s father, Donald Felsenthal, was president
of the Respondent at the time of the hearing herein, was
president of the Respondent during Wallace’s earlier dis-
charges and has been employed by Earle Industries since
1962. All references to Felsenthal herein will be to Peter un-
less indicated otherwise.
When asked whether Respondent had shown Wallace plen-
ty of union animus Felsenthal responded, ‘‘I can’t deny the
past history of the company.’’ Felsenthal went on to testify
that he was not an employee of Earle Industries at the time
of the previous discharges; that his father played absolutely
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
no role in this decision to discharge Wallace; that his father
does not get involved in employee relations matters and he
has not for years; that the past history of Wallace and her
current history of supporting this Union did not factor into
his, Peter Felsenthal’s, decision-making process; that he
knew Wallace had been fired for her union activities when
his father was in charge of the Company; that there were a
lot of policies with respect to this Company that he, Peter
Felsenthal, did not agree with when he came to work with
this Company; and that his management or employee rela-
tions philosophies are different from those which existed at
the Company before he came to work at Earle.
With respect to the discharge of Wallace on October 8,
Gary Smith, testified that no one except Wallace has ever
been fired for failing to cooperate in a company investigation
since he came to Earle on August 29, 1989; that Respond-
ent’s employee Knapp once threw a bolt on the floor in the
plant, refused to pick it up, her supervisor picked the bolt up
and, although her supervisor spoke to her about it, Knapp did
not receive a written warning; that employee Gary Hicks re-
fused to answer Supervisor Virgil Gaines’ inquiries about a
foil-wrapped package found at Hicks’ work station and Hicks
refused initially to go to the office; that Smith took the foil
package to the police station to have it analyzed; that subse-
quently Hicks did come to Smith’s office but again he ini-
tially refused to cooperate until later in the meeting he indi-
cated that it was only salt; that Hicks was suspended; that
he gave an affidavit to the Board on November 14 and in
it he indicated that the Hicks was counseled over this inci-
dent but he was not warned; that on January 25, 1992, he,
Smith, supplemented his affidavit to indicate that Hicks had
been suspended; that Hicks received a 3-day suspension and
that it occurred less than a week before Smith gave his affi-
davit to the Board; that on one occasion employee Diane
Moody had a confrontation with her supervisor because the
supervisor entered the restroom to check up on Moody and
Moody became upset, refusing to go to Smith’s office; that
Moody was suspended; that employee Jewell Ledbetter was
not terminated or suspended but rather counseled when she
refused to cooperate with her supervisor with respect to a job
her supervisor requested her to do; that he had drafted a
memo to file dated November 19, General Counsel’s Exhibit
17(z), regarding Diane Moody and in it he indicated as fol-
lows:
I was contacted by Mr. Lansford, one of the security
guards at the main gate, and he indicated that Mr.
Weatherspoon, who is dating Diane Moody, had
sneaked in. This is not the only occasion that this has
transpired. He informed me that he also came through
the west entrance the other day at 3:30 p.m. when the
gate was open for other people and ran around to the
front without heeding Mr. Lansford’s warnings to stop.
He finally did talk with this gentleman and Mr.
Lansford told him that if he continued to do so that he
would possibly have him arrested for trespassing. I
talked with Diane and instructed her to tell him not to
come on the premises and that he could see her outside
of the gates but if this did occur again actions would
be taken.
Smith went on to testify that there had been one other warn-
ing issued for an employee entering the plant and visiting an-
other person prior to the incident covered in his November
19 memo; that the preceding one involved Diane Moody and
visitors coming into the plant; that he would not remember
the specific date of the incident and he did not think that he
made a memo regarding it; that at that time he did tell Diane
Moody ‘‘Be sure and tell your boyfriend [Weatherspoon] not
to go into the plant’’; that the previous incident occurred
about 1 month before the incident which is covered in the
November 19 memorandum; that in the previous incident Re-
spondent’s receptionist, Sharon Lee, told Smith that
Weatherspoon had gone into the plant and he, Smith, went
out and asked Weatherspoon to leave; that during the pre-
vious incident he told Diane Moody that if Weatherspoon did
not stay out of the plant then she ‘‘could suffer the con-
sequences’’; that Diane Moody was not terminated like Wal-
lace because she, Diane Moody, did not request this individ-
ual to come into the plant; that employee Willie Gibbs was,
according to General Counsel’s Exhibit 17(ff), suspended for
10 working days without pay for bringing a marijuana ciga-
rette into the plant in August 1987; and that Gibbs received
a verbal warning in March 1990, General Counsel’s Exhibit
17(ii), when, after being asked by a supervisor to work a lit-
tle faster, he, Gibbs, got angry and used some vulgar lan-
guage.
Regarding the use of the employee entrance by non-
employees, Wallace testified that her daughter has used the
entrance; that one of Respondent’s former supervisors, Glen-
da McCain, who has not worked at the plant since 1987,
used the employee entrance after she was no longer em-
ployed by Respondent; that Respondent’s employee Barbara
Brown’s husband used the employee entrance to come into
the plant and then had someone get his wife when she had
problems with her automobile; that Plant Manager Jim
Young’s wife, Sylvetta Young, came into the plant, took a
slap at Beverly Burford, slapped her husband James Young
and spit on him when he tried to stop her, and when he said
this is not the place for this, she, Sylvetta Young, said
‘‘[t]his is where it started’’; that Personnel Director Gary
Smith got involved in the Sylvetta Young incident while it
was taking place; that she, Wallace, left the area of the
Sylvetta Young incident because she did not know if
Sylvetta Young had a weapon and she, Wallace, was fright-
ened; and that in July the Moody family was in the area
from Minneapolis, Minnesota, for a funeral and they came
through the front entrance into the plant, with some of them
going into the shipping area of the plant. On cross-examina-
tion, Wallace testified that her daughter Angela Bell Hawkins
came in the employee entrance in 1991 on a Saturday to get
her, Hawkins’, car keys; that Eskridge came and got Wallace
when her daughter came to the plant; that when she brought
the keys to her daughter, her daughter was standing in the
plant about 5 feet from the employee entrance; that it was
not raining that day; that she did not see Eskridge with her
daughter at that time; that she did not see McCain come in
the employee entrance but rather McCain usually went to the
office, visited, and then came into the plant; that McCain vis-
ited the plant three or four times a year ever since she quit
in 1987; that she has seen McCain in the plant on a Saturday
and normally the front door is locked on a Saturday and the
only way to gain entrance into the plant is through the em-
339EARLE INDUSTRIES
ployee entrance; that Supervisor Barbara Moody saw Barbara
Brown’s husband inside the plant, after he had come in the
employee entrance, and she, Barbara Moody, went to get
Barbara Brown; that after attending the funeral of Larry Wil-
liams in Earle in July, the Moody family came into the plant
by the front entrance during the lunch hour; and that she saw
Alma Moody and her daughter talking to Jimmy Ray Farmer
in shipping.
Regarding individuals other than employees using the em-
ployee entrance to come into the plant, Mathis testified that
she worked late a lot of evenings and her son Kevin would
come into the employee entrance door and get her attention
to let her know that he was out there; that Melvin
Weatherspoon has used both the employee entrance door and
the shipping department door to enter into the plant to see
his girlfriend who works there, Diane Moody; that Plant
Manager James Young’s wife Sylvetta came into the plant
on a Saturday, spoke to Supervisor David Forehand, and then
went to the desk of Beverly Burford where she, Sylvetta, be-
came engaged in an altercation involving Burford and her,
Sylvetta’s, husband; that employee Betty Childs’ daughter,
Leslie, has come into the plant; that Alma Moody and her
daughter and two or three other people in the group came
into the plant one day and they were standing near the time-
clock; that former Supervisor Glenda McCain visits the plant,
mostly on Saturdays; that Assistant Supervisor Bobbie
Brown’s husband came to the employee entrance door and
stood by the door until someone summoned Bobbie when
she had problems with her vehicle; that, to her knowledge,
prior to Jackson’s visit to the plant it was never an issue for
people to come inside the plant; that none of the incidents
which she related involving individuals who were non-
employees entering the plant involved situations where they
first went to the front office; and that after Jackson’s visit,
Respondent ‘‘beefed up’’ security, installing cameras, lock-
ing the gate to the parking lot, and requiring visitors to wait
at the gate whereas in the past they were allowed to come
to the foyer outside the office. On cross-examination, Mathis
testified that she did not know if Sylvetta Young was es-
corted out of the plant; that she was not aware whether any-
one from the Respondent asked the Moodys to leave at some
point; that she walked away from the Moodys while they
were still in the timeclock area and went back to her own
work area; that she had no knowledge whether McCain was
authorized to be in the plant at the times she, Mathis, saw
her; that she was not aware of any incident like that which
occurred on October 1 where a number of people, some of
whom were not employees, came into the plant and were
asked to leave and refused to leave; and that in the summer
of 1990 she asked her supervisor to ask Young if it would
be alright for her son to come into the plant cafeteria and
she was told by her supervisor that Young said it was against
the plant policy to let people come inside the area but her
son could wait outside in the parking lot in her car. Mathis
also testified on cross-examination that the area just inside
employee entrance that Jackson went through is the twenty
pair department where they make frames for the twenty pair
bags; that if you walk in the employee entrance you’re walk-
ing right through that department but it is a hallway; and that
it was a working department when the October 1 incident oc-
curred. On redirect, Mathis testified that nonemployee Mel-
vin Weatherspoon would frequently come into the plant to
visit his girlfriend Diane Moody at her work station; and that
it was ‘‘nothing big ever’’ to see someone that’s not em-
ployed in the plant. On further cross-examination, Mathis
testified she saw Weatherspoon walking through the shipping
department and into the plant cafeteria one time; that another
time he came through the employee entrance door to the fin-
ishing department and up to the front table; that another time
he came through the employee entrance and went up to the
supervisor’s table in that area; and that Assistant Supervisor
Dorothy Smith was in the department at the time but Mathis
could not say whether Smith saw Weatherspoon. With re-
spect to her asking her Supervisor Marion Thompson wheth-
er her son could come into the plant cafeteria, Mathis testi-
fied that it was normal for people to come in and out of the
plant but she wanted her son to come into the cafeteria and
sit and wait and she was told he could not do that. Mathis
also testified that in early March 1992 a sister of Respond-
ent’s employee Bobbie Smith came into the plant and went
to the tops and bottoms department, spoke to Bobbie Smith,
Smith clocked out and they both left. Additionally, Mathis
testified that in late March 1992 the husband of Respondent’s
employee Sherry Chism dropped her off inside the gate in
the parking lot even though he was not supposed to enter the
parking lot. On further redirect, Mathis testified that the vis-
its of Weatherspoon occurred before Jackson’s visit to the
plant.
With respect to nonemployees in the plant, Knighten testi-
fied that her sister has come into the plant several times; that
Weatherspoon has been in the plant several times; that she
did not know what door the Moody people used to enter the
plant but they were in the cafeteria one time during
lunchbreak; that Rebecca Carroll’s children had lunch with
her one day in the cafeteria during spring break; that Beverly
Burford brought her children to the plant on the day of the
one of the elections; and that things have changed regarding
people coming into the plant since Jackson’s visit. On cross-
examination, Knighten testified that she was a union sup-
porter and has worn the red union T-shirt and union buttons;
that after she heard the people saying that the door was
locked she looked into the lobby and saw Gary Smith trying
to open the door between the lobby and the offices; that the
very first time she heard anyone say that the door was locked
was after Jackson was already in the lobby; that her sister,
Brenda McNeil, came into the plant in 1990 and came to
Knighten’s work station; that no one escorted her sister out
of the plant; that Supervisor Barbara Moody saw her sister
in the plant and her sister and Barbara Moody were talking;
that Knighten’s assistant supervisor, Earleen Snyder, also
saw McNeil in the plant; that she could not recall how many
times her sister came into the plant; that before Jackson’s
visit she saw Weatherspoon in the plant in 1991 almost every
day in the timeclock area; that when she saw Weatherspoon
in the timeclock area, the door between that area and the
lobby was closed; and that she never actually saw Burford’s
children in the plant.
Regarding nonemployees in the plant, Burnette Glenn tes-
tified that the Moodys came into the plant; and that her son-
in-law came into the plant through the employee entrance a
couple of years back from the time she testified herein,
namely, March 31, 1992. On cross-examination, Glenn testi-
fied that she saw Delores Knighten’s sister in the plant in
Colleen Bonanno’s department during the lunch hour; that
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
she has seen the Moodys in the plant for a number of years;
and that she did not think she was aware of a company pol-
icy which prohibited nonemployee from coming into the
plant area prior to Jackson’s visit because she saw many peo-
ple coming and going and any prohibition was not enforced
like it was after the Jacksons visit.
With respect to nonemployees in Respondent’s plant be-
fore Jackson’s visit, Mary Smith testified that a former su-
pervisor used to come in on Saturdays; and that a man used
to come into the plant a lot to see one of the Moody girls
who worked up front. Additionally, Mary Smith testified that
around mid-March 1992 Bobbie Smith’s sister came into the
plant. On cross-examination, Mary Smith testified that she
saw the former supervisor, Linda, on Saturdays; that she used
to see Diane Moody’s boyfriend everywhere in the plant,
such as in the lunchroom or in the timeclock area and for
a while she thought he worked there; and that she saw Bob-
bie Smith’s sister in the tops and bottoms department when
she came to get Bobbie and they left. On redirect, Smith tes-
tified that since Jackson’s visit, she did not see Diane
Moody’s boyfriend in the plant at all.
With respect to nonemployees in Respondent’s plant, Wil-
liams testified that she once saw Eskridge’s predecessor in
the plant; that she saw James Young’s wife come into the
plant to speak to Burford; and that she saw Diane Moody’s
boyfriend, Melvin, in the plant. On cross-examination, Wil-
liams testified that in the 2 years she worked at Respondent’s
facility she saw Diane Moody’s boyfriend, Melvin, inside the
plant by the timeclock only once.
Regarding nonemployee in Respondent’s plant, Chase tes-
tified that her ex-supervisor, Glenda McCain used to come;
that Bobbie Brown’s husband has been in the plant; that
Weatherspoon, Diane Moody’s boyfriend, was in there daily;
that when her brother-in-law passed away, before they went
back to Chicago, the Moodys came into the plant to say
goodbye; that the Moodys came in the same door through
which Jackson entered the plant; that the Moodys’ visit oc-
curred in the summer of 1991; that Sherry Chism had her
children in the plant lunchroom having lunch with her; and
that it was never an issue before and that people always
came and went from the employee entrance door before
Jackson came but after Jackson’s visit things changed. On
cross-examination, Chase testified that she saw McCain in
the plant a number of times; that she saw Bobbie Brown’s
husband in the plant just once; that she has seen
Weatherspoon everywhere in the plant, including walking
through shipping; and that she saw the Moodys in the time-
clock area and she did not know if they were asked to leave
by the Company but they, her family, never mentioned that
was the case to her. Chase testified that Respondent’s super-
visors Virgil Gaines and Lynn Sears smoke in the lunchroom
and some of the times they were in there they would have
had to seen Weatherspoon in the lunchroom. Chase also in-
cluded Robert Rivers in this group but she was not sure if
he was a supervisor.
With respect to nonemployees in Respondent’s plant, Mar-
garet Davis testified that Diane Moody’s boyfriend comes
into the plant all the time; that Glenda McCain always comes
in; that she has seen McCain used the same employee en-
trance that Jackson came through; and that plant manager
James Young’s wife came into the plant on one Saturday and
the employee who she spoke with, Burford, was not dis-
ciplined for having this visitor.
Respondent’s supervisor, Barbara Moody, who had been a
supervisor for 8 or 9 years with Respondent at the time of
the hiring herein, testified that employees only are allowed
in the plant, except when a nonemployee is authorized by a
management official or is accompanied by a management of-
ficial; that she has never seen Bobbie Brown’s husband in
the plant; that in June 1991 some of her relatives did come
to the plant; that she saw three of them near the timeclock,
told them that they should not be in the plant and accom-
panied them out of the plant; that when she took them out
the front door there were several other relatives outside of
the door which leads from the outside into the foyer; that ev-
erybody that has been at Earle for any length of time would
know that visitors are not allowed out in the plant; and that
she has seen nonemployee Weatherspoon in the plant by the
timeclocks and she did not know whether anyone has run
Weatherspoon out of the plant in the past. Regarding the
visit by her relatives, Moody testified that there might have
been others in the plant but she did not go back into the
plant to check and she did not ask those with whom she
spoke if some of the other visiting relatives were still in
plant.
Regarding nonemployee in the plant, Respondent’s super-
visor, Jimmy Farmer, testified that when the Moody relatives
visited, he did not speak to any of them in the shipping de-
partment itself; that when out-of-town members of the
Moody family visited the plant, he spoke with one of them
in the foyer and then he went outside or outdoors with them
by the visitor entrance; that a number of the visiting relatives
were outside the visitors’ entrance; that he was out there
talking to them for about 15 or 20 minutes; that it was dur-
ing the lunchbreak; that he walked them to their cars in the
parking lot; that he then went into the shipping department;
that none of the visiting Moody relatives came into the ship-
ping department with him; that he did not know whether the
Company had a rule about nonemployees in the plant but at
the entrances the Company has signs indicating ‘‘No Solicit-
ing Employees Only’’; that 2 or 3 years ago he told a non-
employee who came through the shipping entrance that he
would have to go back out the entrance and go around to
the front office; that he heard that some of the members of
the visiting Moody family were around the timeclock but he
did not see them; that Supervisor Lynn Sears escorted
Weatherspoon out of the lunchroom when he, Weatherspoon,
was talking to Farmer about getting a job and Sears told
Weatherspoon that he was not supposed to be in the build-
ing; and that he saw Shipping Supervisor Duke Miller take
nonemployees outside. On cross-examination, Farmer testi-
fied that he did not escort Weatherspoon out because
Weatherspoon had been drinking and he, Farmer, was trying
to get Weatherspoon to collect himself; that this happened 2
or 3 years ago; and that Weatherspoon is married to Diane
Moody.
Assistant Supervisor Bobbie Brown testified that Respond-
ent has a rule that nonemployees can not come into the plant
and if they need to see an employee they must go to the
front office; that she advised her husband and her son, from
day one about this rule; and that neither her son nor her hus-
band has come into the plant area.
341EARLE INDUSTRIES
With respect to nonemployees being in the plant,
Felsenthal testified that he has routinely granted former su-
pervisor Glenda McCain permission to visit out in the plant;
and that it was his understanding that when McCain visited
the plant on Saturdays she would be authorized by Plant
Manager James Young to go into the plant. Felsenthal also
testified, with respect to the rule as it existed on October 1,
that it was enforced and that there have been cases, he could
not recall the specific individuals, where Supervisors Duke
Miller or Jimmy Farmer have told people to go back outside
and came around through the front office; and that there have
been cases where Gary Smith has had to deal with people
who are in the plant without authority.
Gary Smith testified, when called by Respondent, that Re-
spondent does have a rule prohibiting nonemployees from
coming into the plant; that the only thing that was added
after Jackson’s visit is that nonemployees who do not have
business with the Respondent are not allowed in the parking
lot; and that, as indicated in Respondent’s Exhibits 29 and
30, which are photographs of signs on doors leading into the
plant, only employees are to use these entrances. It is noted
that, according to Respondent’s Exhibit 29, the sign next to
the doorway through which Jackson entered the plant reads
‘‘EMPLOYEES ONLY NO VISITORS NO SOLICITING.’’
When asked by counsel for Respondent to cite instances
prior to October 1 when nonemployees were not allowed in
the plant, Smith testified that he asked Weatherspoon to
leave the plant when he came in to see Diane Moody; that
on one occasion he asked Weatherspoon to leave the plant
when he came into the plant with Van Welch, who is an em-
ployee of Respondent; and that when employee Rudy Ste-
venson came into the plant on a Saturday, which was his day
off, he, Smith, asked Stevenson to leave the plant, telling
him that employees who are not working are not allowed to
be in the plant during work hours. Smith testified that em-
ployees know of the rule because it is something he covers
in orientation. With respect to employee Bobbie Smith hav-
ing a nonemployee visiting her in the plant, Gary Smith testi-
fied that as indicated in his memo to file dated March 19,
1992, Respondent’s Exhibit 31, Bobbie Smith did not know
that the nonemployee was coming into the plant area. And,
with respect to the Moody visit in June, Smith testified that
he drafted a memo to file dated November 11, Respondent’s
Exhibit 32, after the Board commenced its investigation of
the Wallace discharge. The memo indicates that Respond-
ent’s employee Lillie Moody asked four of her relatives who
were in the plant next to the timeclocks to return to the foyer
area. On cross-examination, Smith testified that he spoke to
Barbara Moody about the Moody family visiting incident and
she told him that she had no personal knowledge of the inci-
dent; that Barbara Moody referred to him to Lilly Moody;
that Lilly Moody advised him that she told certain members
of the Moody family to go back through the door into the
foyer area; that he spoke to Diane Moody and Van Welch
about Weatherspoon after October 24; and that he could not
recollect any employee who was issued a warning for having
visitors in the plant before October 24. On redirect, Smith
testified that while he did not recall any employee receiving
a warning for having visitors in the plant prior to October
24, there were incidents where nonemployees and employees
off duty were ejected from the plant prior to that.
When called by Respondent, Gary Smith testified that on
October 8 he took statements from Maggie Lucas and
Frances Jones, General Counsel’s Exhibits 7(e) and (f) re-
spectively; that he actually sat with these ladies while their
statements were given; that the statements were given on the
morning of October 8 probably around 7:30 or 8 a.m.; and
that he gave the statements to Felsenthal later that morning.
On further direct examination by counsel for Respondent,
Smith testified that he was not sure when he took Lucas’ and
Jones’ statements; that he talked with them and had them
write their statements afterwards; and that he could not re-
member the specific date when the statements were given
back to him. And on cross-examination, Smith testified that
he could not recall whether he spoke to Maggie Lucas and
Frances Jones in the morning or the evening of October 8.
Lucas testified that the statement she gave Gary Smith on
October 8, General Counsel’s Exhibit 7(e), is true. In this
statement Lucas indicates that Wallace kept waving for Jack-
son to come on in the office. On cross-examination, Lucas
testified that she gave the statement on the morning of Octo-
ber 8 but she was not sure of the time.
On October 8 Jones gave a statement to Respondent, Gen-
eral Counsel’s Exhibit 7(f), which, as she testified herein,
was true. In the statement Jones indicates that Wallace kept
hollering and telling Jackson to come this way while clap-
ping her hands. She testified that she could have given the
statement to Smith on the morning of October 8.
A memo dated October 16 from Smith to Felsenthal, Gen-
eral Counsel’s Exhibit 7(b), refers to discussions Smith had
with specified employees, indicating that one of the employ-
ees was not in the area of Jackson and Smith. The memo
goes on to indicate as follows:
The other individuals indicated that they saw no other
persons attempting to direct Rev. Jackson to the office
up front. They indicated that they could hear me talk-
ing. They were caught up in the emotion of the time—
observing Rev. Jackson, who is a national figure, and
the emotion of the crowd. They indicated that they
were in the area because they had an interest in seeing
Rev. Jackson.
Regarding his October 16 memo to Felsenthal, Smith testi-
fied that it did not reflect that he interviewed Marilyn
Mathis; that it does indicate that he spoke with seven named
employees; and that he did not tape record the interviews of
the seven named employees and, therefore, he did not make
transcripts of these interviews.
When called by Respondent, Smith testified with respect
to his October 16 memo to Peter Felsenthal, General Coun-
sel’s Exhibit 7(b), that as indicated in the memo on October
15 and 16 he talked with Debbie Evett, Mary Dorsey, Sandra
Williams, Teresa Winfrey, Anita Proctor, Rachell Smith, and
Joe Blockman; and that the discussions with these individ-
uals did occur on October 15 and 16.
A file memo from Felsenthal dated October 16, General
Counsel’s Exhibit 7(c), indicates that it was concluded that
except for Wallace there was no convincing evidence to jus-
tify disciplinary action regarding any other employee. The
memo concludes: ‘‘[i]n general, other employees were mere-
ly observing what was going on and reacting emotionally to
victory that Rev. Jackson and Earley Wallace had achieved
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
over the management authority of Gary Smith.’’ A number
of the employees gave affidavits to Respondent. See General
Counsel’s Exhibits 8 and 7(d), 7(e), 7(f), and 7(g).
By letter dated October 17, the acting Regional Director
for the Board’s Region 26 advised Earle that after carefully
investigating its charge in Case 26–CB–2879 against the
Union with respect to what occurred on October 1, he had
decided not to issue a complaint in this matter. Pertinent por-
tions of the letter read as follows:
Concerning this initial speech by Jackson in the
parking lot, the evidence established that it occurred in
a non-work area during a non-work time. The investiga-
tion additionally disclosed that other non-employees are
allowed into the parking lot during employees’ lunch
period i.e., vendors, friends, relatives, etc. Additionally,
the evidence submitted during the investigation, includ-
ing all videotapes submitted by the parties, reveals an
absence of any 8(b)(1)(A) conduct expressed verbally
by the union or its agents.
The evidence established that no manager or official
of the Employer admonished the Union or its agents to
leave the Employer’s property prior to law enforcement
officials doing so. Thereafter, the Employer success-
fully asserted its property rights when law enforcement
officials aborted Jackson’s speech, drove the truck on
which Jackson and several employees were standing off
the Employer’s property, and effectively evicted union
representatives Duane Stillwell and Michael Holdway
by having them arrested. The investigation disclosed
that the Employer did not uniformly evict all non-em-
ployees from its property, rather it chose to evict only
the Union and its agents.
. . . .
contrary to the Employer’s position that the Employer
asked Jackson to leave after he entered the plant, video-
tapes provided by the Employer demonstrate that the
Employer did not ask Jackson to leave the property,
rather, the Employer merely requested Jackson to enter
the facility by another door. . . .
. . . .
of equal importance, there was no showing in the in-
stant case that Union’s unauthorized presence on the
Employer’s property or Jackson’s brief (approximately
two minute) entry into the plant, resulting in a disrup-
tion of employees’ work, other than to momentarily
delay certain employees returning to their work stations
following their lunch break. The evidence submitted
during the investigation disclosed that said employees
were in the minority and returned to their work stations
anywhere from 30 seconds to 4 minutes late. No em-
ployee was disciplined for their returning to their work
area late after lunch on October 1, 1991.
On about October 18, or, as indicated by Mathis, about 1-
1/2 or 2 weeks after Wallace was discharged, Gary Smith
had Mathis brought to his office. Regarding this meeting,
Mathis testified that only Smith and she were present; that
Smith asked her if she saw Jackson coming on to the parking
lot; that Smith asked her if she was in the hall when he and
Jackson were talking and if she could overhear the conversa-
tion to which she answered yes on both counts; that he asked
her what was said and she told him that she had no com-
ment; that he asked her something about the microphone to
which she replied that it was unplugged because in her opin-
ion management did not want employees to hear what Jack-
son had to say; that Smith asked her if she knew that the
employee entrance was for employees only and she told
Smith that it may or may not be for employees only but
more than employees used the door; and that Smith said that
he would not ask her to give names and she told Smith that
she would not give names at that point in time anyway.
Mathis further testified, with respect to this interview, that
Smith did not tell her that he was going to tape record the
conversation; that she did not remember Smith giving her an
assurance that anything she said in that interview would not
impact on her job or that there would be no discipline in-
volved; that she recalls refusing to answer some of Smith’s
questions; that she was not warned for that; and that she was
not told that she was refusing to cooperate in an investigation
of a possible infraction of the company policy.
With respect to his interview of Marilyn Mathis on Octo-
ber 18, Gary Smith testified that he did tape record her inter-
view; that he did not tell her that he was tape-recording her
interview; that he picked and choose who he was going to
record; that he did not only tape union advocates; that he
erased Mathis’ tape; that Mathis and Wallace were known
union advocates; that only two employee’ interviews were
tape-recorded regarding the October 1 incident; and that they
were Wallace and Mathis.
Regarding the interview of Mathis on October 18,
Felsenthal testified that Gary Smith advised him that Mathis
declined to cooperate; that he agreed with Smith that there
was no need to press Mathis on the issue; that had Wallace
not been terminated at that point in time and Mathis refused
to answer some questions with respect to what occurred on
October 1, then there may have been some basis for a pos-
sible violation of company policy of failing to cooperate; and
that he thought Mathis had a legitimate reason for not re-
sponding to questions that she believed were directed toward
the conduct of Wallace. Felsenthal testified that after Smith
had conducted the Mathis interview and after he, Felsenthal,
had placed a memo in the file indicating that he did not be-
lieve any further disciplinary action was warranted other than
with respect to Wallace, there was some indication in one of
the employee statements that Mathis had pointed to the of-
fice door. The statement in question was notarized October
17 and it is included in the statements received here in as
General Counsel’s Exhibit 8. Felsenthal also testified that a
review of the involved video lead him to conclude that Bow-
ers, who raised her arm with a clinched fist in the vicinity
of the employee entrance door just before Jackson went
through it, was not pointing in the direction of the employee
entrance door; and that he did not observe any of the Re-
spondent’s other employees actually trying to encourage
Jackson to come into the plant or to defy Smith.
When called by Respondent, Gary Smith testified with re-
spect to the October 18 interview of Mathis, that while she
did not answer some of his questions, she was not fired be-
cause she cooperated in the majority of the interview to a
point when she simply said ‘‘I can’t say’’; that as far as he
was concerned at that point she was probably attempting to
protect someone else; that at that time Mathis was not herself
implicated in anything; that he did not believe at that point
343EARLE INDUSTRIES
that she had done something which was inappropriate; that
to his knowledge Mathis did not lie or was she untruthful in
the interview that he had with her; and that he did not tape-
record the interviews of other employees during this inves-
tigation, which other specified employees were union sup-
porters. On cross-examination, Smith testified that he records
interviews where the people have a propensity to be untruth-
ful or their statements could be confusing; that he recorded
Mathis’ interview even though she had never had been dis-
credited by anyone in any formal proceeding, and she had
no documentation in her personnel file with respect to inci-
dents of discipline regarding matters which were her fault;
that none of the employees which he interviewed who he be-
lieved were union advocates were on the back of the flatbed
truck in the parking lot with Jackson; that Mathis was on the
flatbed truck; that the strongest union proponents were on the
back of the flatbed truck with Jackson; that when he inter-
viewed Mathis she indicated that she could not provide cer-
tain information; that he did not keep the tape of his inter-
view with Mathis; that Mathis answered every one of his
questions up to a point where she said ‘‘I can’t say’’; that
at this point he could see that it was not going to go any
further and he said ‘‘Fine. I won’t ask any more questions’’;
that in his mind that this constituted full cooperation with the
investigation; and that he believed the incident when he re-
corded a part of a meeting with Supervisor Larry Atkins oc-
curred after the election, apparently referring to the October
election. On redirect, Smith testified that he recorded his
interview with Mathis because he wanted to be sure that he
heard everything correctly and ‘‘it was getting to be a
lengthy session with her’’; and that he did not tape her be-
cause she was one of the employees on the flatbed with
Jackson.
Both Chase and Davis testified that while they were on the
back of the flatbed truck while Jackson gave his speech, they
were never interviewed by Respondent’s management regard-
ing their conduct.
Felsenthal testified that no other employee, other than
Wallace, was disciplined for the October 1 incident. Accord-
ing to Felsenthal’s testimony, if another employee had sig-
nificantly interfered, through pointing, with Gary Smith’s ef-
forts to have Jackson discontinue his trespass, then Respond-
ent would have conducted an investigation of that individ-
ual’s conduct. Felsenthal testified that he asked Smith to
interview Mathis; that Smith told him that Mathis refused to
answer certain of Smith’s questions; and that Van Welch’s
affidavit to Respondent, which is included with the affidavits
received here as General Counsel’s Exhibit 8, states on the
last page thereof:
Some of the employees were pointing towards the of-
fice door, in order to show Rev. Jackson the way to the
office. These employees that were pointing towards the
office door, were Earley Wallace, Marilyn Mathis, and
Linda Davis.
According to Felsenthal’s testimony neither Marilyn Mathis
nor Linda Davis was disciplined nor were they, to his knowl-
edge, counseled. Van Welch’s affidavit is dated October 17.
Regarding Respondent’s disciplinary procedures, Felsen-
thal testified that discipline works on a case-by-case basis
and the only standard progressive disciplinary process Re-
spondent has is with respect to absenteeism; and that that
progressive disciplinary policy is covered in the employee
handbook. Felsenthal sponsored a number of exhibits, Re-
spondent’s Exhibits 6 through 12 and 17, which deal with
terminations, collectively, for fraud, theft, falsifying docu-
ments, and giving false information regarding an injury.
Felsenthal also testified about and he sponsored Respond-
ent’s Exhibits 13, 14, 15, and 16, collectively, dealing with
employees who cursed at a supervisor and later refused to
follow the supervisor’s instructions, an employee who was
placed on probation after being incarcerated and who there-
after refused to follow a supervisor’s instructions, an em-
ployee who during his probationary period missed work
without documentation, came in late the following day, and
did not pick up his timecard, an employee who fired a hand-
gun at her husband in the foyer of the plant and shot one
of the supervisor’s cars and an employee who engaged in
sexual harassment during his trial period.
The Rules of Conduct which are included in Respondent’s
employee handbooks, Respondent’s Exhibit 18, specify that
‘‘violation of any of the following rules will subject an em-
ployee to disciplinary action up to and including immediate
discharge.’’ The fourth Rule of Conduct reads: ‘‘Failure to
cooperate in an internal investigation.’’ Felsenthal testified
that these rules were in the handbook that was in effect on
October 1; that anytime there is a change or new provisions
are issued, they are provided to all employees; and that, as
evidenced by Respondent’s Exhibit 19, Wallace acknowl-
edged her receipt of the Rules of Conduct part of her hand-
book. On cross-examination, Felsenthal testified that the pol-
icy regarding nonemployees visiting inside the plant before
October 1 had not been reduced to writing except for the
posters or signs on the perimeter of the plant.
Gary Smith also testified, with respect to Respondent’s
disciplinary procedures, that while Respondent does consider,
in dealing with a disciplinary matter, a history of disciplinary
problems of the individual, Smith did not consider this to be
progressive discipline in the normal sense of the word be-
cause Respondent’s approach is on a case-by-case basis.
With respect to the aforementioned terminations for firing
a handgun in the foyer of Respondent’s facility, for attempt-
ing to file a false claim on workers compensation, for filing
duplicate insurance claims, and for falsifying documentation
regarding an absence, all of the involved employees were ter-
minated without any progressive discipline, according to
Smith’s testimony.
By memo dated October 23, Felsenthal and Smith advised
all employees that the following rule was to be effective im-
mediately:
No non-employees or non-employee vehicles will be al-
lowed on Company property at any time, except those
persons in vehicles having business with the Company
in the ordinary course of the Company’s business, such
as truckdrivers delivering or picking up raw materials,
finished products or supplies, postal and delivery serv-
ices, buyers, suppliers, Company legal, financial and
business advisors, and the like.
With respect to the memo to all employees dated October
23, Felsenthal testified that those posted on the bulletin board
had the following sentence which apparently did not appear
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the ones handed out to the employees for inclusion in their
handbook: ‘‘We do not want this new rule, but there is sim-
ply no other way to prevent third parties from blocking our
entrances and invading our work areas.’’
On October 24 Respondent’s appeal from the acting Re-
gional Director’s refusal to issue a complaint in Case 26–
CB–2879 was denied. General Counsel’s Exhibit 34.
Respondent’s Exhibit 26, which is a memo to file from
Gary Smith dated November 1, refers to the aforementioned
incident involving Hicks. Regarding the incident, Smith testi-
fied that he met with Hicks on October 31; that he asked
Hicks four or 5 times what was in the package and each time
Hicks refused to answer; that when he told Hicks that if he
refused to cooperate he could face termination, Hicks said it
was table salt; and that Hicks said he was sorry for acting
that way. The memo to file indicates that ‘‘[h]e [Hicks] was
still not convinced [after talking with Smith] that he was at
fault.’’ Smith testified that Hicks had a five-day suspension.
Smith’s memo to file indicates that Hicks was suspended for
3 working days. Smith pointed out that he did not tell Hicks
during his investigatory interview that he already knew that
the substance was salt.
Wallace gave an affidavit to the Board on November 5.
With respect to the affidavit, she testified on cross-examina-
tion that the affidavit is mistaken where it indicates that
Burnette Glenn was hired about 3 or 4 weeks before they
fired Wallace; that the affidavit is an error where it indicates
that she was saying ‘‘clock’’ not ‘‘lock’’; that she told the
Board agent who took her affidavit sometimes shortly after
she gave her affidavit (she estimated that she made this rev-
elation the week before Thanksgiving), apparently that she
remembered saying locked and the Board agent said, ‘‘Well
why didn’t you tell me that when you were giving the state-
ment’’; that she told the Board agent who took the affidavit
a few days after she gave the affidavit that she did not re-
member saying anything about a door being locked; that the
affidavit is in error where it indicates that no one warned her
during her October 8 meeting with Felsenthal that it was
against company policy to refuse to cooperate with a com-
pany investigation or that she could be discharged for refus-
ing to cooperate in that Felsenthal did warn her about refus-
ing to cooperate during the October 8 meeting; and that she
may have been mistaken in indicating in her affidavit that
Gaines made an expression like she was clowning or it was
rehearsed when Jackson passed her and her husband just in-
side the employee entrance to the plant on October 1. Also,
on cross-examination Wallace testified that her affidavit was
in error where she indicated that she did not say ‘‘go Jesse
go’’ when he was in the foyer or front lobby of the plant
since she was not sure whether she did or did not participate
in this chant; that while Felsenthal gave her the opportunity
to have a fellow worker with her in the October 7 meeting
she did not tell the Board agent this; that her affidavit cor-
rectly points out that about 13 Moodys came into the plant
through the front lobby and walked in the plant since some
of the Moodys, Alma and her daughter, were in the shipping
department while Jimmy Ray Farmer was there; that five of
the Moodys were in the clocking area about 11:45 a.m. that
day; that Melvin Moody was in the lunchroom with Diane;
that there were children with the Moodys but she did not
know there names; and that while her affidavit indicates that
she did not have anything to do with what Gary Smith and
Jackson were talking about, she guessed that her saying that
the front door was locked did have something to do with
what Smith and Jackson were talking about.
Regarding Wallace’s November 5 affidavit, General Coun-
sel’s Exhibit 12, it is noted that in it she states that ‘‘I told
him [Felsenthal] again that I wanted someone in with us to
represent me who could understand what he was asking me.
Felsenthal told me, ‘‘you don’t need anyone in here, I’ll get
one of the workers to sit in here while you talk’ or some-
thing similar.’’ The affidavit also contains the following
statement of Wallace:
I can’t remember saying anything about a door being
locked while Jackson was coming down through the
aisle in the plant, though I remember when Smith was
trying to open the door from the lobby to the front of-
fice that the door was locked. [A]nd I seem to recall
saying something about the door being locked, but I
don’t remember saying anything like that in the aisle,
though I might have said it—I just can’t remember.
With respect to the memo to file dated November 11 from
Gary Smith regarding employee Rebecca Knapp, General
Counsel’s Exhibit 17(e), Eskridge testified that she went to
take some binding from Knapp to give to another employee
with the understanding that she, Eskridge, would go in the
back and get some more binding for Knapp; that Knapp
knocked the binding on the floor and would not pick it up;
that she, Eskridge, picked the binding up and told Knapp not
to do that anymore; that Knapp indicated that she was sorry
for her conduct; and that it is not true that Knapp disobeys
her, Eskridge, all the time. Eskridge also testified about hav-
ing to talk to employees Catherine Miller, Lucinda Johnson,
and Dorothy Berry in 1991 (or possibly 1992 regarding
Berry) when, respectively, they either had repairs and be-
came upset, tried to avoid doing some work, or refused to
sew a repaired bag. Eskridge did not give verbal or written
warnings to any of the three employees and she pointed out
that Miller and Berry are union supporters.
On April 27 and June 3, 1992, an unemployment hearing
was held regarding Wallace’s discharge. The transcript of the
hearing was introduced herein as Joint Exhibit 2. The Arkan-
sas Department of Employment Security found in favor of
Earle Industries initially, the appeals tribunal found in favor
of Wallace and the matter was pending on further appeal at
the time of the hearing herein.
Analysis
Paragraphs 7, 13, and 14 of the consolidated complaint
collectively allege that on March 15 Respondent discharged
Cummings in violation of Section 8(a)(1) and 8(a)(3) and (1)
of the Act.
General Counsel, on brief, contends that the assignment of
Cummings to an inferior sewing machine was made with the
intent to make her working conditions more onerous and
Eskridge’s repeated refusals to move her to a functional ma-
chine underscores this intent; that after Cummings’ support
became open and notorious on March 7, Eskridge instigated
a confrontation with Cummings and the following week
Cummings was discharged for low production; that prior to
March, Cummings was steadily progressing in her produc-
tion; and that Cummings’ March 1 evaluation was never
345EARLE INDUSTRIES
4 Thompson complained about the machine after Respondent made
same changes in it to accommodate wider binding. Eventually ad-
justments were made. Nonetheless, Thompson still made production.
shown to her or discussed with her and there is an obvious
inference that this evaluation was prepared after the March
7 incident and backdated.
Respondent argues, on brief, that at the outset of her em-
ployment Cummings was informed that she would be termi-
nated if she did not make production at a specified rate
which was measured on an hourly basis; that Cummings’
evaluations in November and December 1990 show that her
production was less than the $5.30 an hour minimum rate re-
quired by Respondent in 1990; that Cummings was termi-
nated for failure to meet minimum production after an ex-
tended period; that Cummings did not tell Smith on March
15 that she had problems with her sewing machine; that
Cummings was told she could reapply for employment with
Respondent for a non-piece rate job but she has not reapplied
for a position with Respondent; that Respondent has rehired
several former trial operators and placed them into non
piece-rate positions; that Respondent has terminated a num-
ber of trial operators, including a relative of the plant man-
ager, for failure to make minimum production; that General
Counsel has failed to make a prima facie showing sufficient
to support the inference that protected conduct was a ‘‘moti-
vating factor’’ in the Respondent’s decision to discharge
Cummings on March 15; and that even assuming that Gen-
eral Counsel established a prima facie case of unlawful dis-
crimination, Respondent has established that it would have
discharged Cummings for low production notwithstanding
any protected or union activity on her part.
Cummings was hired on July 16, 1990, on a 90-day trial-
period basis with the understanding that Respondent could,
if it wished to do so, extend the trial period. Cummings con-
ceded that when she was hired Respondent gave her written
notice that if she did not reach a productive level at the end
of 30 weeks, Respondent would have no choice but to termi-
nate her. When she was hired, the expected production rate
was $5.30 an hour. To graduate from being a trial-period op-
erator, Cummings would have had to meet the production
rate for 4 weeks. In the 35 weeks Cummings worked for Re-
spondent she reached the production level for only 1 week,
namely her 21st week, which was the first full week in De-
cember 1990. Immediately thereafter, however, and continu-
ing for the next 2 weeks her production dropped by more
than $1 an hour. Even though she brought her production up
some, she never again met the required rate, which was in-
creased in 1991 to $5.60 an hour. As noted, Cummings’ pro-
duction rate regressed in her 22d week, which ended Decem-
ber 14, 1990. This was well before she was moved to her
second sewing machine by any account and it was well be-
fore Cummings became involved in the union organizing
campaign.
With respect to Cummings’ second sewing machine, some
of the testimony of General Counsel’s witnesses appears to
be contradictory, i.e., there is testimony that Cummings com-
plained about the machine two to three times a day and there
is testimony that Cummings complained two to three times
a week. Some of the testimony of Respondent’s witnesses is
contradictory regarding whether the mechanic was called
once or more than once to repair the involved machine. As
noted above, Cummings’ production dropped well before she
was moved to the second sewing machine. Undisputed docu-
mentary evidence introduced by Respondent shows that, col-
lectively, other sewers, including Isabell Thompson,4 met
production using the involved machine both before and after
Cummings used it. Respondent had cause to terminate
Cummings. She had not met production even though she had
been sewing for 35 weeks. There was no showing that Re-
spondent regularly employs trial-period operators even
though they do not meet production in a 35-week period.
The one exception covered by General Counsel occurred in
1985. The minimum introduced by General Counsel, General
Counsel’s Exhibit 28, reads in pertinent part: ‘‘[t]his exten-
sion [in April 1985] ended June 10, 1985, at which time we
were confident that you were capable of reaching and main-
taining your production level so we extended your time once
again.’’ Without knowing the specifics regarding that em-
ployee’s production and putting aside for the moment the
possibility that probationary period policies back in 1985
may have been different for piece-rate operators, one cannot
conclude that if Respondent were confident that that em-
ployee, Berry, was capable of reaching and maintaining her
production level, it should have also been confident that
Cummings was capable of reaching and maintaining her pro-
duction level. As noted above, Cummings’ production
dropped by more than $1 an hour in her 22d week which
was well before she was moved to the second sewing ma-
chine. She only reached her production level 1 week in her
35-week period. Respondent’s Exhibit 35 demonstrates that
Cummings did not steadily improve her production over the
35-week period. More than one of Respondent’s witnesses
testified that Cummings had a poor sewing technique and she
was either unwilling or incapable of changing her technique
for other than a short period after she was counseled. Per-
haps this would be why Respondent would not be confident
that Cummings was capable of reaching and maintaining her
production level. Without knowing the specifics regarding
the Berrys’ production and probationary period practice in
1985, it cannot, in my opinion, be concluded that Cummings
was treated disparately.
While, according to General Counsel’s ease, the perform-
ance of the second sewing machine to which Cummings was
assigned was critical, General Counsel, other than Cummings
herself, did not call one witness who actually used that ma-
chine either before or after Cummings used it. The names of
the people who had used the machine were not a secret.
They appear throughout the record. Respondent’s documen-
tary evidence that all of the specified employees who used
the involved machine before and after Cummings, including
Thompson, made production was not refuted by General
Counsel or the Union. Perhaps that machine was not as fast
as some of Respondent’s other machines. But did whether or
not an operator made production on that machine turn on the
machine or the operator. The record herein points to the lat-
ter; all things considered it was the operator and not the ma-
chine. Cummings’ above-described claim form for unemploy-
ment benefits, which she filed 25 days after her termination,
demonstrates that at that point in time she did not blame the
machine or at least did not feel strongly enough to explain
that her low production was allegedly the fault of the ma-
chine. As indicated above, others who used the machine
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Union did not file a charge alleging that either Eskridge’s
conduct on March 7 or the warning Eskridge drafted with respect
to the March 7 occurrence violated the Act. And since the Union
waited until September 11 to file a charge over Cummings March
15 discharge, the Union itself created a situation where this matter,
the March 7 incident and the March 7 warning, fell beyond the 6-
month statutory period covered by the Union’s charge. Nevertheless,
evidence concerning the above-described March 7 occurrence and
warning can be considered on the issue of motive. If what occurred
on March 7 was misconduct on Eskridge’s part, does it supply a mo-
tive? Does it demonstrate union animus? In my opinion Eskridge has
a temper. If, as Wallace asserts, Cummings and Mary Smith were
snickering during the employee meeting, then there would have been
a question as to whether they were being disrespectful and there
would have been a question of why they behaved that way, espe-
cially if one was a long-time trial-period operator who had not yet
meet the 4-week production standard. (As indicated by Judge
Learned Hand in NLRB v. Universal Camera Corp., 179 F.2d 749,
754 (2d Cir. 1950), ‘‘[i]t is no reason for refusing to accept every-
thing that a witness says, because you do not believe all of it; noth-
ing is more common in all kinds of judicial decisions than to believe
some and not all.’’) In the circumstance existing here, I do not be-
lieve that what occurred on March 7 either supplies an unlawful mo-
tive or demonstrates union animus.
6 The other aforementioned cases of either an alleged violation or
a violation by Respondent of the Act with respect to Wallace are,
in my opinion, too remote in time to establish antiunion animus.
7 By documentary evidence, Respondent demonstrated that a num-
ber of other employees had not signed evaluations or warnings. And
the assertion that Eskridge possibly looked into Cummings purse and
saw a union authorization card in the presence of Cummings and
other employees is not convincing.
made production. I did not credit Cummings that she men-
tioned the machine during her March 15 termination inter-
view.
General Counsel contends that Cummings’ union activity
or sympathies was a motivating factor in Respondent’s deci-
sion to discharge Cummings. The March 7 verbal exchange
between Cummings and Eskridge is cited in support of this
position. As noted above, Cummings took notes and asked
Felsenthal questions during the March 7 employee meeting.
Even if Felsenthal and Gary Smith do not recall this,
Eskridge does. She also recalls that there was a subsequent
verbal exchange between herself and Cummings, although
she is vague with respect to the details. General Counsel’s
witnesses are credited regarding this incident. Eskridge made
a point of discussing the Union and production with
Cummings in front of other employees on the plant floor.
Eskridge provoked Cummings and in the heat of the moment
both she and Cummings lost control.5 If there was any doubt
about whether Cummings supported the Union it was re-
moved the next day, March 8, with the union flyer, which
flyer was distributed on March 8 at Respondent’s facility and
which flyer contained a picture of Cummings, among other
employees, and Cummings’ written statement explaining why
she supported the Union.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1980), cert. denied 455 U.S. 989 (1982) (ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983)), the Board set forth the following causation
test in cases alleging violations of Section 8(a)(3) or viola-
tions of Section 8(a)(1) turning on employer motivation:
First, we shall require that the General Counsel make
a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘‘motivating factor’
in the employer’s decision. Once this is established, the
burden will shift to the employer to demonstrate that
the same action would have taken place even in the ab-
sence of the protected conduct. [Footnote omitted.]
The only current allegations6 that Respondent violated the
Act of which I am aware are those involved herein. If there
are others, they were not made a matter of record herein nor
was I requested to take judicial notice of any violations.
Consequently, for the purpose of determining whether a
prima facie case of unlawful discrimination has been estab-
lished, only the conduct of Respondent covered herein will
serve to illustrate whether or not there is animus on the part
of Respondent toward the Union and its supporters.
It appears that Respondent was aware of the fact that
Cummings supported the Union when it discharged her on
March 15. Gary Smith admitted he had seen the aforemen-
tioned March 8 union flyer. But is what occurred on March
7 and the March 8 flyer sufficient to warrant any inference
that the Cummings’ union support was a motivating factor in
her discharge?7 Consideration must be accorded the fact that
on March 15 Smith told Cummings that she was welcome
to reapply for a non-piece rate position. As noted above,
other operators who could not make production have been
hired by Respondent for non-piece rate positions. Also, Re-
spondent hired employees during the pertinent time.
Cummings admits that Gary Smith told her she was welcome
to reapply but she chose not to reapply for a non-piece rate
position.
In the circumstances existing here, I do not believe that
counsel for General Counsel has demonstrated that an infer-
ence is warranted that Cummings’ concerted protected activi-
ties or union sympathies or activities were a motivating fac-
tor in her discharge. And even assuming, arguendo that such
was the case, in my opinion the Respondent has dem-
onstrated that it would have discharged Cummings for her
low performance even if she was not a union supporter and
had not engaged in any protected or union activity.
Cummings’ discharge did not violate Section 8(a)(3) and (1)
or Section 8(a)(1) of the Act as alleged.
Paragraphs 9, 10, 13, and 14 of the consolidated complaint
herein collectively alleged that Respondent violated Section
8(a)(1) and Section 8(a)(3) and (1) of the Act by suspending
Wallace on October 7 and terminating her on October 8.
General Counsel, on brief, argues that Respondent’s ac-
tions in discharging Wallace appear very heavy-handed; that
Wallace may have been slightly more noticeable than the
others but she was not acting alone; that the employees want-
ed Jackson to speak with Felsenthal and Wallace was just
one of many encouraging him; that Wallace’s conduct on
October 1 was not an unprotected act of insubordination, but
was an integral aspect of hers and her fellow employees’
protected concerted activity; that Respondent’s intentions to
‘‘entrap’’ Wallace during her October 7 interview were
overt; that the prepared questions, the consultations with
counsel and the ‘‘out-of-view’’ recording does not indicate
an open-minded fair meeting but rather a well choreographed
347EARLE INDUSTRIES
8 Contrary to General Counsel’s assertion on brief, the way the
October 7 interview of Wallace by Felsenthal was conducted does
not demonstrate a well-choreographed plan to establish a pretextual
discharge. Rather, it demonstrates, on Respondent’s part, a methodi-
cal approach taken to protect itself as much as possible under the
circumstances when it knew that it was dealing with someone who
was both untruthful and who would, upon her discharge, file a
charge with the Board.
9 General Counsel submits that Mathis refused to answer Gary
Smith’s questions during her investigatory interview, Bowers made
an encouraging gesture as Jackson proceeded toward the employee
entrance, Mary and Dorothy Dorsey pointed to the office door dur-
ing Smith’s conversation with Jackson and later in October, Hicks,
who initially refused to speak to Gary Smith about some salt
wrapped up in foil, was suspended instead of being discharged even
though the memorandum covering the incident indicates that Hicks
did not believe that he was at fault. Contrary to General Counsel’s
assertion, Respondent did not engage in a blatant disparity. Mathis
was truthful during her interview. She was not the target of the in-
vestigation, to the extent that she did not cooperate it was not mean-
ingful and, as concluded by Respondent’s management, she was pro-
tecting someone else. No reasonable interpretation of Bowers’ ges-
tures would, in my opinion, lead one to conclude that she specifi-
cally, in any way, caused Jackson to enter the plant through the in-
volved employee entrance. With respect to the conduct of Mary
and/or Dorothy Dorsey, as shown on the involved video, even if it
rises to the level asserted by General Counsel, and, in my opinion,
this conduct, which occurs in the background, was not shown to rise
to that level, it comes nowhere near the conduct of Wallace which
was clearly and unequivocally depicted on the involved video. Fi-
nally, regarding Hicks, it is noted that he was not untruthful during
his interview and that he eventually made an admission. He may not
have been as repentant as he should have been but when all factors
are considered neither Respondent’s treatment of Hicks nor its treat-
ment of the other above-described employees demonstrates that Re-
spondent treated Wallace disparately.
plan to establish a pretextual discharge;8 that all the elements
of a discharge due to protected concerted activity are present,
namely, the protected concerted activity, the company knowl-
edge, disciplinary action due to the conduct, timing and bla-
tant disparity;9 that Wallace was also discharged due to her
union activities; that it was not the first time Wallace had
been discharged by a Felsenthal; that Wallace did not signifi-
cantly interfere with Smith’s management authority nor was
she insubordinate; that Wallace may have interrupted Smith,
but Respondent’s characterization amounts to embellishment;
that Jackson’s eventual arrival at the office door could better
be laid at the Dorseys’ doorstep or better yet, Smith; and that
Wallace’s refusal to answer the initial interview questions
was a continuum of protected activity, as was her coopera-
tion or lack thereof, in the remainder of the interview.
Respondent, on brief, argues that the 8(a)(1) allegation
should be dismissed since the grounds for Wallace’s dis-
charge did not include any protected or concerted activity en-
gaged in by Wallace on October 1 or October 7; that even
assuming, arguendo, that Wallace was engaged in concerted
activities, the termination of Wallace was still not violative
of Section 8(a)(1) of the Act, since Wallace’s conduct took
her outside of the Act’s protection; that employee rights are
not absolute, since they must be balanced against the em-
ployer’s long-recognized right to maintain order and respect;
that the 8(a)(3) allegations should be dismissed since General
Counsel has failed to establish that Wallace’s protected or
union activity was the motivating factor in the Employer’s
decision to suspend and terminate her employment; that even
assuming arguendo that General Counsel has made a prima
facie showing, the Employer has established that it would
have suspended and terminated Wallace in the absence of
union conduct; that it is well established that an employer
does not violate Section 8(a)(3) of the Act where the em-
ployer discharges an employee for insubordinate behavior,
especially where the insubordination is directed to a high-
ranking company official in the presence of other employees
and the employees’ behavior was not provoked by the man-
ager; and that even assuming, arguendo, that the employer
violated the Act in suspending and discharging Wallace, rein-
statement would be an inappropriate remedy under the cir-
cumstances of the instant case since the conduct which led
to Wallace’s discharge was flagrant and/or extreme and since
Wallace was untruthful in her testimony during the unfair
labor practice hearing and in her Board affidavit.
About 50 years ago the Supreme Court in Republic Avia-
tion Corp. v. NLRB, 324 U.S. 793, 798 (1945), in dealing
with the balancing of the right of self-organization and the
right of employers to maintain discipline in their establish-
ments, stated:
Like so many others, these rights are not unlimited in
the sense that they can be exercised without regard to
any duty which the existence of rights in others may
place upon employer or employee. Opportunity to orga-
nize and proper discipline are both essential elements in
a balanced society.
Was Wallace engaged in protected concerted activities in
an attempt to organize Respondent’s employee Jackson’s
visit to Respondent’s facility on October 1 was obviously to
assist Respondent’s employees in their attempt to organize.
Jackson brought media attention to the situation. He spoke
to the employees. And he spoke with Felsenthal about the
employees’ attempt to organize. What occurred in general on
October 1 was a concerted activity for the purpose of orga-
nizing.
But did Wallace forfeit the Act’s protection by her conduct
on October 1? In my opinion she did.
Before Jackson entered the plant, two union employees
were arrested and placed in handcuffs. This occurred in the
open by the highway in front of Respondent’s parking lot
and there is no reason to believe that those present, including
Wallace, were not aware of about was happening. The video
shows Wallace walking near the police car which held the
two arrested individuals. When Gary Smith stopped Jackson
in the aisle in the plant and told him for first time to go back
out the employee entrance and go around to the front door
of the plant, Wallace stated ‘‘[f]ront door locked,’’ ‘‘come
on.’’ While it might be argued that the first time Wallace
made this statement it was spontaneous, I do not believe that
to be the case. There is no evidence of record that the front
door was locked. It is normally left unlocked at this time of
day. And there is evidence that it was not locked on October
1. When Wallace said that it was locked the first time it was
a misstatement. Why did she make this misstatement? She
claims that while outside the plant she heard someone say
something about a locked door and she presumed that it was
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 One witness did initially indicate that she heard something out-
side about a door being locked but she changed her testimony to in-
dicate that she heard it inside the plant and not outside.
11 The video raises a question as to whether Wallace actually led
Jackson through the employee entrance. Wallace denies that she did.
The video shows Wallace next to Jackson in the parking lot after
he reenters the lot. It also shows Wallace walking alongside Jackson
as he goes toward the employee entrance. Additionally, Jackson
hesitates just inside the employee entrance and then proceeds the
moment Wallace passes him and she is walking in front of him.
Since Wallace is not credible, I cannot credit her denial. Jackson ob-
viously could have shed some light on this aspect of the case but
the General Counsel did not call him as a witness. Under the cir-
cumstances existing here, it appears that Respondent reasonably con-
cluded that Wallace led Jackson through the employee entrance even
though she physically let him pass through first. Since Riley’s obser-
vations were not available at that time, they obviously were not con-
sidered by Respondent when Wallace was discharged. While there
is a conflict in the evidence regarding the extent to which, Respond-
ent enforced its policy with respect to nonemployees on the plant
floor, common sense would seemingly dictate that this is not the
same situation as a retailer whose facility is open to the public and
which has a room where food is dispensed, which room is also open
to the public. This is a manufacturing facility. Albeit what occurred,
occurred in the aisle and not between and around machines, it is still
a manufacturing plant floor. It is not open to the public. The signs
by entrances into the plant indicate employees only. Because Re-
spondent’s management might not have policed the area as well as
possible and might not occasionally expel a violator does not mean
that it acted in a disparate manner in its handling of the situations
at hand. It is absolutely absurd for General Counsel to argue, in ef-
fect, that Respondent acted in a disparate manner because it did not
discipline Burford when nonemployee Sylvetta Young came in the
plant and attempt to slap her, Burford, because allegedly she was
having an affair with Plant Manager James Young. There was no
showing that something of the magnitude of the October 1 visit ever
occurred at Respondent’s facility before. Perhaps if something simi-
lar had occurred in the past, Respondent believed that same em-
ployee was somehow at fault and Respondent did not discipline that
employee, then I would be in a position to compare apples to apples.
In my opinion, what is covered on the video with respect to what
occurred in the aisle and the recording of the October 7 Wallace
interview clearly justify Wallace’s termination. Although I believe
that Respondent acted reasonably in concluding that Wallace led
Jackson through the employee entrance and she should have been
disciplined for that, it is not necessary to rely on this for, again, the
insubordination depicted in the video and the lying at the October
7 interview clearly warranted Wallace’s termination. The same ap-
plies with respect to Wallace’s October 1 conduct near the time-
clock. While it appears that Respondent, at the time of Wallace’s
discharge, did have statements from employees that Wallace contin-
ued to encourage Jackson to proceed through the plant, it is not nec-
essary to rely on this evidence.
the front door which was locked. No other witness10 cor-
roborates Wallace regarding Hill saying anything about a
door being locked while Wallace was outside the plant. Wal-
lace was a totally unreliable witness. She lied before in a
Board proceeding. She lied in her affidavit to the Board in
this proceeding. And she lied while testifying herein. Wal-
lace wanted Jackson to continue walking through the plant
notwithstanding the fact that it would have been obvious to
a reasonable person that Gary Smith, Respondent’s personnel
manager, by what he said and by his body language, wanted
Jackson to go back out the employee entrance. Eventually
Jackson did go and wait outside the front door. But at this
point in time it was obvious that Jackson was relying on
what Wallace was saying for after Wallace said ‘‘front door
locked’’ Jackson refused to go out the employee entrance un-
less Smith accompanied him. In other words, Jackson, rely-
ing on what Wallace was saying, apparently believed he
would be locked out of the plant if they locked the employee
entrance behind him and so he asked Smith to accompany
him. But for Wallace’s statements, I believe that Jackson
would have gone, as he subsequently did, to the front door.
Wallace’s first statement that the front door was locked was
not a spontaneous or impulsive statement. Wallace impressed
me as being a very calculating individual. This was a cal-
culated statement. As she subsequently demonstrated, no
matter what Smith said or did Wallace wanted Jackson to
proceed through the plant and this was her way of achieving
that.
After Wallace made this statement Gary Smith said ‘‘[n]o
ma’am.’’ Again Wallace was totally aware of what was hap-
pening. She had begun to move toward the office and with
Smith’s statement she stopped. Notwithstanding Smith’s
statement and his obvious attempts to get Jackson to leave
through the employee entrance, Wallace again attempted to
get Jackson to continue through the plant to the office by
saying for a second time ‘‘[f]ront door locked.’’ The fact that
she said this a second time even after Smith said ‘‘[n]o
ma’am’’ demonstrates the deliberate and defiant nature of
Wallace’s approach. Assuming arguendo that Wallace’s first
statement that the front door was locked is found to be im-
pulsive or spontaneous, there is no question in my mind that
what Wallace did after that on October 1 was not sponta-
neous. As shown by the video, and as summarized above,
Wallace continued her deliberate and defiant conduct. Wal-
lace engaged in insubordinate conduct toward Respondent’s
personnel manager on the plant floor in front of many other
employees, with television cameras rolling. What occurred
had to have a negative effect on Smith’s status in the eyes
of other employees. Wallace’s conduct was not provoked by
any conduct on the part of Respondent.
While the Act protects the right of employees to engage
in concerted activities for the purpose of organizing employ-
ees, as noted above, the right cannot be exercised without re-
gard to Respondent’s right to maintain discipline, order, and
respect in its establishment.
If Wallace’s conduct on October 1 was indeed protected
and if all she did during the October 7 interview was refuse
to answer questions, there might be some question as to
whether Wallace’s conduct during the October 7 interview
was an integral aspect of Wallace’s and her fellow employ-
ees’ protected concerted efforts. But that is not what oc-
curred. As found above, Wallace’s conduct on October 1 was
not protected. Limiting my consideration at this point to just
what appears in the video, as I did above, Wallace lost the
protection of the Act.11 She was insubordinate. It was a dif-
ficult situation. Respondent’s management attempted to
maintain order, respect and discipline. Wallace interfered and
she single-handedly undermined that effort. When she was
asked about her unprotected conduct she did not just refuse
to answer. Rather, she lied.
Was Wallace terminated because she was insubordinate
and she lied about it or was she terminated because of her
union activity? In my opinion it is the former. No one dis-
putes that Wallace engaged in union activity and Respondent
349EARLE INDUSTRIES
knew it. But in my opinion General Counsel has not dem-
onstrated union animus. And even if General Counsel did
make a prima facie showing under Wright Line, supra, I be-
lieve that Respondent has shown that it would have termi-
nated Wallace absent her union activity and any concerted
protected activity she may have engaged in. Respondent did
not violate the Act in suspending Wallace on October 7 and
terminating her on October 8.
As noted above, Respondent contends on brief, that as-
suming arguendo that it is found that it violated the Act,
Wallace still should not be reinstated since the conduct
which led to Wallace’s discharge was flagrant and/or ex-
treme, rendering her unfit for further service with the Em-
ployer and since Wallace admittedly lied in her Board affida-
vit, was impeached numerous times and gave conflicting tes-
timony during the trial herein.
At pages 300 to 305 of the transcript herein Wallace gave
the following testimony:
Q. Well, wouldn’t you think you would probably re-
member it better back in November, than you do now,
after seeing the video?
A. Once I seen the video, I remembered saying that.
There was so much going on in those like 25 minutes.
Q. Then once again I would like to ask you, if it was
only five or six weeks after the incident when you gave
this sworn statement, and you were swearing to things
like you didn’t say ‘‘lock,’’ that you said ‘‘clock,’’ and
now you say you just didn’t remember at the time, why
did you swear those things were true at the time, if, in
fact, you didn’t remember?
A. Well, I just—I remembered to the best of my
ability, and as I began to think, and think, and try to
think about what happened that day—Now, I remem-
bered before I seen that video, but I had done already
give that statement.
Q. And you didn’t go back and tell the—
A. (Interposing) Yes, I told Mr. Glissendorf, and he
said, ‘‘Well, why didn’t you tell me that when you giv-
ing the statement,’ and I told him I could not remember
it.
Q. When did you tell that to Mr. Glissendorf?
A. About the week before Thanksgiving.
Q. Okay. Did you tell him that you had—What did
you tell him?
A. Well, he was investigating some more stuff,
and—
. . . .
Q. Now, that’s the discussion with Mr. Glissendorf
that you’re now talking about, right?
A. No, no.
Q. Oh, you’re talking about a different discussion.
A. I’m talking about a different discussion.
Q. Now, let’s go to the different discussion, not the
one that led to this Affidavit—okay? What happened in
that discussion, the different discussion?
A. He called me to ask me something, I don’t know
what it was about—
Q. (Interposing) When?
A. It was sometime in November, I don’t know.
Q. After you gave the November Affidavit?
A. Like maybe a few days after that.
Q. All right. And tell us what you talked about?
A. I don’t know. He was asking me something about
some gates, or something, being locked. Something
concerning the plant out there, and asked me did I
know anything about it.
Q. Did he ask you about your statement about the
door being locked?
A. He didn’t ask me about it, he just said do I re-
member saying anything about a door being locked, and
I told him, No, then, I didn’t remember.
Q. You’re still referring to this telephone call now,
right?
A. I’m referring to the telephone call.
Q. Now, what did he say?
A. He just ask me, ‘‘Do you remember saying any-
thing about the door was locked?’ He kept asking ques-
tions about the door being locked, and right then, I still
couldn’t remember saying it.
Q. And what did you tell him?
A. I told him, no.
Q. No, what?
A. That I didn’t recall saying that.
Q. Okay. And that’s all you said about it?
A. That’s all I said about it.
And subsequently in her above-described state unemploy-
ment hearing she gave the following testimony at transcript
pages 183 and 184:
A. But when I was giving my statement a month
later to the NLRB the man that taken my statement
kept asking me, ‘‘You sure you ain’t—you don’t re-
member nothing about—saying nothing about the door
being locked or hiring somebody say’—and he just
wouldn’t— tell you—you know, he was like talking
around it.
Q. Uh huh (affirmative response).
A. I said, now, he keep asking me that for some rea-
son, you know. You know—he—and every time he
would have to call and ask me something he would
keep saying, ‘‘You sure you ain’t heard nobody say
nothing about the door was locked?’’
Q. Uh huh (affirmative response).
A. And at that time I was going through a personal
problem with my sister and my kids—
Q. Yeah. Yeah.
A. —so I didn’t—didn’t really have my mind on—
Q. Well, at first you said you didn’t remember say-
ing that.
A. I didn’t remember it.
Q. Okay.
A. I didn’t remember saying it.
Q. All right. Now, did you subsequently remember
saying it?
A. I kept thinking about—I think a few days before
Thanksgiving Mr. Lisenthor (spelled phonetically), I
think his name was David Lisenthor, and he called me
for something and I said—
Q. Okay.
A. —I remember. I remember saying the doors was
locked and why I said those doors was locked.
Q. Okay. All right.
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 More specifically, she testified ‘‘[w]ell, he [the Board agent]
told me that they would take it in and it wasn’t up to him. It was
up to his boss. They would make a decision on did I have a
case. . . .’’ (Emphasis added.)
13 Counsel for General Counsel, at transcript 465, in introducing
the affidavit, indicated that she would only rely on those portions
of the affidavit which are responsive to testimony elicited by Re-
spondent’s counsel. The document was received in its entirety over
Respondent’s objection. If somewhere in the video Wallace was
heard saying something about clock or clocking in, one might won-
der whether she was confused vis-a-vis fabricating testimony.
14 Surely, the alleged discriminatee in this kind of situation would
have to testify.
A. And he said, ‘‘Well, why [sic] come you didn’t
tell me that then? You should have told me that then.’’
Like I—I said, ‘‘Well, I didn’t know. I told you to the
best of my knowledge.’’
Wallace appreciated the significance of her November 5 affi-
davit to the Board. She admitted that the Board agent who
took it explained its purpose to her before he took it.12 In
it, the Board agent had Wallace go over what she said in the
plant aisle on October 1 and four times Wallace ‘‘preferred’’
under oath that she said ‘‘clock.’’13 The fourth time she indi-
cated as follows:
I don’t remember saying anything like that [about the
door being locked] in the aisle, though I might have
said it. I just can’t remember. I don’t have anything to
do with the front door at all the front door is usually
locked. While I was standing with Smith and Jackson,
I was telling the girls behind Jackson to ‘‘come in and
clock’’ because they was talking, that is why I mo-
tioned. I was saying ‘‘clock’’ not ‘‘lock.’’
The consolidated complaint was not issued until November
29. As noted above, at one point in this proceeding and in
the State proceeding Wallace testified that she advised a
Board agent that she was recanting a very significant matter
in her November 5 affidavit before the consolidated com-
plaint herein was issued. According to certain of Wallace’s
testimony, the Board agent asked her why she did not tell
him this on November 5 and he said that she should have
told him this on November 5. This matter was brought out
on cross-examination by one of Respondent’s counsel. Be-
fore this matter was brought out on cross-examination, Wal-
lace did not correct, modify, qualify, or supplement her No-
vember 5 affidavit to cover what she testifies she remem-
bered after the November 5 affidavit was given but before
the November 29 consolidated complaint was issued. Gary
Smith supplemented his Board affidavit with respect to the
Hicks matter so obviously this procedure was available. Affi-
davits of General Counsel’s witnesses must be provided to
the opposition, upon request, before cross-examination com-
mences. In light of this, I cannot believe that a Board agent
would not have required Wallace to memorialize the fact that
she was recanting a very significant matter in her November
5 affidavit.14 I cannot believe that a Board agent would not
have taken this action knowing that eventually opposing
counsel would be relying on something the Board agent
knew was recanted. And I would have to question whether
a complaint would have been issued regarding Wallace if she
indeed recanted the involved significant portions of her affi-
davit sometime before Thanksgiving 1991 and was candid
with respect to the remainder of her affidavit. Such recanta-
tion, if it occurred, would undoubtedly have caused whoever
investigated this matter not to rely on what Wallace said.
The Region already had reason to question Wallace’s credi-
bility in view of the strong language in the above-described
May 30 Report on Objections which, as noted above, was
upheld by the Board on appeal on October 24. If Wallace
did recant her testimony on this very significant matter in her
November 5 affidavit, she should not have changed her testi-
mony as it appears she did at page 305 of the transcript here-
in. At that point in her testimony, it appears that Wallace,
in effect, was recanting her alleged prior recantation. And if
she was not, she did not attempt to explain why that was not
the case. It is noted that Wallace first testified that she told
the Board agent of her recantation ‘‘[a]bout the week before
Thanksgiving,’’ then she testified that the telephone con-
versation with the Board agent occurred ‘‘[l]ike maybe a few
days after that [after she gave an affidavit to the Board on
November 5]’’ and in the State proceeding she testified that
the telephone conversation with the Board agent occurred ‘‘I
think a few days before Thanksgiving.’’ Thanksgiving was
on November 28 in 1991. As noted above, the consolidated
complaint herein was issued November 29.
It appears that the Board’s processes were abused. In my
opinion, under no circumstances is Wallace entitled to rein-
statement.
CONCLUSIONS OF LAW
1. Earle Industries, Inc. is an employer engaged in com-
merce within the meaning of Sections 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the
above-described consolidated complaint.
[Recommended Order for dismissal omitted from publica-
tion.]
APPENDIX A
UNITED STATES OF AMERICA
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
TWENTY-SIXTH REGION
EARLE INDUSTRIES, INC.
and Cases 26–CA–14700
and 26–CA–14755
AMALGAMATED CLOTHING AND TEXTILE
WORKERS UNION, SOUTHWEST REGIONAL
JOINT BOARD
COUNSEL FOR THE GENERAL COUNSEL’S AND
RESPONDENT COUNSEL’S MOTION FOR POSTPONEMENT
AND RESCHEDULING OF HEARING
Comes now Counsel for the General Counsel and Re-
spondent’s Counsel pursuant to Section 102.24 of the
Board’s Rules and Regulations and move that the hearing
scheduled for May 26, 1992, be rescheduled for the month
of August 1992 at the Honorable Judge West’s convenience.
351EARLE INDUSTRIES
In support of said motion, the parties respectfully show the
following:
1.
The Region is currently investigating charges against the
Respondent in Cases 26–CA–15042 and 26–CA–15052,
which are related to the pending litigation.
2.
The parties are actively pursuing settlement of the pending
litigation.
Accordingly, the parties respectfully request that the hear-
ing be rescheduled from May 26, 1992, to a date certain in
August 1992 to be rescheduled by the Administrative Law
Judge.
Dated at Memphis, Tennessee, this 21st day of May 1992.
Grace E. Speer
Counsel for the General Counsel
J. Gregory Grisham
Counsel for the Respondent
CERTIFICATE OF SERVICE
I hereby certify that on this date, copies of the foregoing
Motion for Postponement and Rescheduling of Hearing were
served by regular mail and by facsimile transmission on the
following:
The Honorable John H. West
Administrative Law Judge
Division of Judges
1550 Wilson Blvd., Suite 601
Arlington, VA 22209
I further certify that copies of the foregoing document
were served by certified mail, return receipt requested, on the
following parties:
Jeff Weintraub, Attorney
Greg Grisham, Attorney
Weintraub, Robinson, Weintraub & Stock
Suite 2560, One Commerce Square
Memphis, TN 38103
Dwayne Stillwell, ACTWU
1705 S. Broadway
Saint Louis, MO 63104
Scott Trotter, Attorney
Youngdahl & Youngdahl
P. O. Box 164808
Little Rock, AR 72216
Office of General Counsel
Amalgamated Clothing & Textile
Workers Union, AFL–CIO, CLC
15 Union Square West
New York, NY 10003
Dated at Memphis, Tennessee, this 21st day of May 1992.
John H. Goreee, Supervisory Attorney
National Labor Relations Board
Twenty-sixth Region
Suite 800, Mid-Memphis Tower
1407 Union Avenue
Memphis, TN 38104-3627
Telephone 901-722-2854
APPENDIX B
United States Government
National Labor Relations Board
Division of Judges
1550 Wilson Boulevard - Suite 601
Arlington VA 22209-2426
September 8, 1992
J. Gregory Grisham, Esq.
Weintraub, Robinson, Weintraub
& Stock, P.C.
Suite 2560 One Commerce Square
Memphis, TN 38103
Re: Earle Industries, Inc.
Cases 26–CA–14700 & CA–14759
Dear Mr. Grisham:
Pursuant to your request on behalf of counsel for Respond-
ent for an extension of time for filing briefs, time is hereby
extended to September 30, 1992.
Yours truly,
Melvin J. Welles, Chief
Administrative Law Judge
cc: Grace Speer, Esq.
National Labor Relations Board
1407 Union Avenue, Suite 800
Memphis, TN 38104
Duane Stillwell
Director of Organizing, ACTWU
Southwest Regional Joint Board
1705 South Broadway
St. Louis, MO 63104
APPENDIX C
Hi Earley.
Hi.
Hi Louise.
Hi.
Earley there are just a few things I want to talk to you
about. We are in the process of investigating the activities
that occurred a week ago, Tuesday, October 1st, when Rev.
King was here, not Rev. King, excuse me, pardon me, when
Rev. Jackson was here. More particularly we are interested
in looking into some of the activities on your behalf as far
as Rev. Jackson’s entry into our plant, O.K.? I am going to
ask you a few questions and I would appreciate you cooper-
ating in answering these questions. The first think I would
like to know is if you in any way assisted or encouraged
Rev. Jackson to come into the plant?
I’m not answering any of those questions.
Are you saying you don’t know the answer to those ques-
tions?
I’m not going to answer any of those questions.
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Do you have any knowledge as to why Rev. Jackson en-
tered through the employee entrance rather than through the
front?
I’m not going to answer that either.
Are you refusing to . . . .
I’m not going to answer—if you are going to accuse me
of something I have a right a right to have an attorney.
I am not accusing you of anything. I am investigating con-
duct on your behalf.
Let me get somebody to represent me while you are inves-
tigating.
I have no problem—under normal circumstances an em-
ployee does not have a right to have somebody to represent
them with respect to an investigation of activities that are
considered in violation of company policies. If you will feel
more comfortable having a fellow worker in here with you
I will be more than happy to allow you to have a fellow
worker in here with you.
Well I ’m still not going to answer any of those questions
.
You still won’t answer any of those questions?
No I’m not going to.
I’m going to ask the questions.
You can ask them—that’s fine.
If you don’t want to respond to them or you don’t want
to answer them that is your prerogative. Now I am going to
ask you some questions. Did you in any way interfere with
or interrupt or make any comments to Rev. Jackson or any-
body while Gary was talking to Rev. Jackson in an attempt
to get Rev. Jackson to leave the plant and come around and
enter through the front door?
I’m not answering that.
Do you know if Gary at any time instructed Rev. Jackson
to leave the plant that he was in fact trespassing and that if
he wanted to see myself or anybody in management he was
to go around to the front door?
I’m not going to answer that.
Are you saying that you don’t know the answer to that or
are you just not going to answer.
I’m not going to answer.
Did you at any time motion to Rev. Jackson or anybody
in the vicinity of Rev. Jackson that the front door was
locked?
I’m not going to answer.
Did you at any time indicate to Rev. Jackson to proceed
to the front office through the plant rather than to see that
he went out through the employee entrance and entered the
plant through the front door?
I’m not going to answer it.
Are you refusing to cooperate in an investigation of. . .
I’m just not going to answer your questions.
You are not going to answer the questions. Are you refusing
to answer the questions?
I’m not refusing I’m just not going to answer them. I
don’t know what you are talking about and I’m not getting
wound up in nothing.
I am merely investigating as I do or Gary does any actions
on behalf of an employee that we feel are in violation of
company policies.
Are you refusing to answer?
I’m not refusing—I’m not just gonna—if I’m under arrest
I have the right to remain silent. So you can ask your ques-
tions.
You are not under arrest. You are merely being questioned
just as any employee who is being questioned pertaining to
an apparent violation of company policies.
I know what you are doing but like I say I would rather
have somebody understand more of what you are trying to
do to me.
I’m not trying to do anything. . .
I’m trying to protect myself.
I’m not trying to do anything other than to obtain the
truth.
Well I won’t answer any of your questions. Unless I have
somebody that knows which way you are coming from.
All I’m asking you Earley is whether you did something
or you didn’t do something. In your own mind in your own
opinion. That is not confusing.
No it’s not confusing but I would rather not answer that.
You would rather not answer that?
That’s right.
O.K. I can ask you this a hundred times and you’re not
going to answer my questions? Under what circumstances
are you going to answer my questions?
Well why are you asking me those questions?
Because we are investigating conduct on your behalf that
might quite possibly have violated company policies. That is
the only reason we are asking these questions.
Keep on asking.
Gary Smith routinely asks employees about circumstances
pertaining to possible company violations and all employees
are expected to answer and cooperate with those investiga-
tions and apparently you are refusing to cooperate.
Well I don’t understand what you are asking me and I’m
not going to get myself in nothing that I don’t understand
what I’m answering. Not that I refuse but I don’t understand
exactly what you are up to and I will not answer the ques-
tions.
We believe, number one, that you interfered with Gary’s
management authority in the plant—that you were insubordi-
nate toward your Personnel Manager—that you assisted and
encouraged somebody to come into this plant to enter this
plant in violation of company policy in violation, a non-
employee of company policies—that through the assistance
and encouragement of that employees, a number of which
were scared, a number of which had their work interfered
with, that’s what we are looking into and the questions are
very simple and to the point in asking you to respond as to
what you did or didn’t do on this occasion. I don’t know that
I can state these questions anymore simply than I have asked
them. I’ll start over again and try to make it as simple as
possible. All I want is the truth Earley—that is all I’m look-
ing for. I’m just looking for answers as to what you did or
did not do in the presence of Rev. Jackson in the plant.
Well you seen it. Didn’t you see the film and the video?
Didn’t you see them walk in together?
I saw what was on T.V. and that was it. I don’t know
what went on. I have talked to some people and I know what
Gary has told me. I’m furthering this investigation. This
company does not take action against individuals or consider
353EARLE INDUSTRIES
disciplinary action until such time as we have thoroughly in-
vestigated it. And that is exactly what I am doing right now.
Well you can still ask your questions but if I don’t under-
stand them I’m not answering those questions.
I’ll start over.
You don’t have to start over. You can continue.
I was basically through with the questions. I’ll start over
again and see if I can make it any more simpler for you. The
first question I have is on October 1st did you in any way
assist or encourage Rev. Jackson or lead Rev. Jackson into
the plant through the employee entrance?
I’m not going to answer that.
Do you have any knowledge why Rev. Jackson came
through the employee entrance versus him coming through
the front door?
No, I don’t.
Have you ever used our front door during lunch periods?
Have you ever come and gone through the front door?
Yes I do.
Is that door open during lunch?
Yes its open.
Was that door open on that date?
I don’t know.
Do you have any reason (telephone rang)
Let me ask that one more time. Do you have any reason
to believe that the front door was locked on the day of Rev.
Jackson’s visit?
I don’t know.
You don’t know? You don’t know if it was locked or not?
I don’t know.
You don’t know. Do you know if it would have been a
violation of company policy for an employee to assist or lead
a non-employee into the plant through an employee only en-
trance? Do you know if that would be a company policy?
I don’t know.
Do you know if the door through which Rev. Jackson en-
tered was an employee entrance?
Do I know? Well you know that you saw him come in
through there.
Is that an employee entrance?
You know that is the employee entrance.
Did you at any time hear Gary, well let me back up a
minute, did you witness Gary addressing Rev. Jackson in the
plant.
There was so much noise I wasn’t paying Gary no atten-
tion.
You weren’t paying Gary any attention. Do you know if
at any time he told Rev. Jackson that he was trespassing and
that he needed to. . .
I don’t know what Gary was—I don’t know what Gary
was saying.
Did you have anything to say to Gary or Rev. Jackson
while they were in there?
You did not?
No I did not.
Did you at any time motion Rev. Jackson to come into a
particular direction to move toward the plant?
I won’t answer that question.
Is that not a simple question?
I’m not going to answer it.
Did you hear Gary, at any time, instruct Rev. Jackson that
he was trespassing?
I’m not going to answer those questions. I’m going to get
me a lawyer. So you can ask away all you want to ask.
A lawyer can’t answer these questions.
I know I have a right to remain silent.
You certainly do.
I know that.
You don’t have to answer these questions if you don’t
want to. I want to let you know that your failure to respond
to these questions is your failure to investigate with a com-
pany investigation of your actions on October 1st. That is in
violation of our company policies and I want you to know
that and knowing that you still continue to refuse to answer
those questions.
I told you I don’t know about those questions.
You don’t know if at any time you encouraged or mo-
tioned for Rev. Jackson to move closer to the office door in
the plant.
I don’t know.
And you do not know if at any time you advised Rev.
Jackson or somebody in his group or party that the front
door was locked?
I don’t know.
You don’t know?
You don’t know or is the answer yes or no?
No .
The answer is no.
Is no.
You did not
I did not
You did not indicate to anybody that the front door was
locked?
I did not.
Would you say you did not at any time motion or encour-
age Rev. Jackson.
I said I did not. You did not. In no point in time did you
encourage him.
I did not.
Did you in no way interfere with Gary’s efforts to . . . .
I did not. I didn’t say anything to Gary.
You did not interfere with his efforts to. . .
I hadn’t said a word to Gary.
I’m not asking you if you said anything to Gary. Did you
say anything to anybody that interfered with his efforts to
have Rev. Jackson come though the appropriate entry to the
plant.
I was walking down with him.
Is that all you were doing was walking with him.
I was walking with him.
Walking in front of him—behind him?
Sort of on the side of him like most people did.
You do not know why Rev. Jackson may have entered that
door versus the front door?
No I do not.
But you do know that it is against company policy for a
nonemployee to. . . .
No I don’t know. I don’t know.
So you are saying that you don’t know if it against com-
pany policy for non-employees to be out in the plant.
I see non-employees come in the plant a lot of times Peter.
With or without authorization.
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Without authorization. I see the peoples that work out here
have children come up in here and sometimes they have
friends come to the door. I can see them.
Through the front foyer?
Right out there.
Right out where?
Come in that side door. I see plenty of people out here
that are not authorized.
And never asked to leave, never stopped and asked to
leave?
I don’t know who asked them to leave. I have seen people
in the plant I don’t know who asked them to leave. Why
they was out here but I have seen plenty of people out here.
So are you saying you made no effort whatsoever on your
behalf to interfere with Gary’s efforts to have Mr. Jackson.
I didn’t say anything to Gary. I haven’t said a word to
Gary.
I’m not saying, I’m not asking if you said anything to
Gary. Did you do anything or say anything that interfered
with his efforts.
Not that I know of.
Any questions Gary?
No.
Did you proceed into the front foyer with Rev. Jackson
when he went in there?
Into the front what?
Into the front office area.
Well there was so many cameramen that I couldn’t get by
really. I got in there in a little while but they was squeezing
in and I come on back out.
But you entered that foyer with him when he went in
there?
Ya me and a whole bunch of them entered in that room.
Did you at any time ever point to or show the way to Rev.
Jackson or anybody in his party [EMW: I didn’t point] to the
entrance to the office area? [EMW: No] You never. . .
[EMW: Gary brought them on to the office]
Ya I brought them into the office.
But you at no time pointed in that direction or [EMW: No]
showed people the way.
Showed people?
Showed non-employees, Rev. Jackson and his group.
I don’t know nothing about no non-employee. There was
employees walking all around.
I’m talking about Rev. Jackson and anybody that was with
him that was not an employee of our Company.
I didn’t see anybody.
So you are saying that you did not in any way assist or
encourage Rev. Jackson or anybody to come through that en-
trance into the office.
I did not.
You did not. Earley, we are going to have to investigate
this matter further and as I told you we have belief that con-
duct, from what we can determine, that you engaged in and
interfered with Gary’s management authority and interfered
with his ability to do his job. That your conduct was insubor-
dinate toward Gary. That you not only assisted but encour-
aged Rev. Jackson and other non employees to come to the
office through the plant rather than to proceed to the front
door where visitors normally enter the plant. I think at this
point I have no choice but to suspend you pending further
investigation of this matter.
O.K.
Do you have anything else to comment about?
No sir.