El-Tech Research Corp.

National Labor Relations Board - Board Decisions

Oct 16, 1990

300 N.L.R.B. 522 (N.L.R.B. 1990)

522
300 NLRB No. 51
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
We also find without merit the Respondent’s allegations of bias and preju-
dice on the part of the judge. There is no basis for finding that bias and parti-
ality existed merely because the judge resolved all important factual conflicts
in favor of the General Counsel’s witnesses. As the Supreme Court stated in
NLRB v. Pittsburgh Steamship Co., 337 U.S. 656, 659 (1949), ‘‘[T]otal rejec-
tion of an opposed view cannot of itself impugn the integrity or competence
of a trier of fact.’’
Neither is there any bias because the judge and the General Counsel are of
the same race. Such an allegation, without more, is insulting and patently un-
acceptable in any context.
We deny the General Counsel’s motion to strike the Respondent’s first ex-
ception.
In sec. III,B of his decision, the judge refers to Ike Gillespie as an El-Tech
manager when Gillespie observed Judith Fletcher talking to two union orga-
nizers. In fact, Gillespie was a former El-Tech manager at the time. This error
does not affect our decision, as we do not rely on this incident to infer em-
ployer knowledge of Fletcher’s union activities.
In sec. III,A of his decision, the judge inadvertently calls Erlene Earls a
‘‘trainee.’’ In fact, she was a ‘‘trainer.’’ In sec. III,G of his decision, the judge
inadvertently refers to the layoff of Judith Fletcher. In fact, Fletcher was not
laid off, but discharged. In sec. III,G of his decision, the judge inadvertently
states that McKinney and Fletcher were laid off. In fact, it was McKinney and
Allen who were laid off. These errors do not affect the outcome of this case.
2 The judge made findings concerning an unlawful interrogation of employee
Mildred McKinney by Supervisor Myrtle Hambrick in March 1988, which he
inadvertently failed to address in his Conclusions of Law and recommended
Order. We shall therefore modify the Conclusions of Law and recommended
Order. We shall also modify the Conclusions of Law to reflect our finding
below that the Respondent’s discharge of Fletcher and layoff of Allen and
McKinney violated Sec. 8(a)(3).
3 Interest on the backpay awards shall be computed in the manner prescribed
by New Horizons For the Retarded, 283 NLRB 1173 (1987).
We shall modify the remedy and recommended Order to make clear that
the Respondent must, if it has not already done so, offer the discriminatees
reinstatement.
4 See Iron Mountain Forge Corp., 278 NLRB 255 (1986).
5 Pattie Allen’s absenteeism was high due to medical problems, but most of
her absences were preapproved as medical leave.
El-Tech Research Corporation and Pattie Louise
Allen and Mildred C. McKinney and Judy
Fletcher. Cases 11–CA–13007, 11–CA–13228,
and 11–CA–13261
October 16, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 11, 1990, Administrative Law Judge Elbert
D. Gadsden issued the attached decision. The Re-
spondent filed exceptions. The General Counsel filed
cross-exceptions, a motion to strike, an answering
brief, and a brief in support of cross-exceptions. The
Respondent filed an answering brief to the General
Counsel’s motion to strike.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings1 as modi-
fied, conclusions2 as explained in part below, remedy
as modified,3 and to adopt the recommended Order as
modified.
1. The judge found that Myrtle Hambrick was a su-
pervisor within the meaning of Section 2(11) of the
Act. For the following reasons only, we adopt the find-
ing that Hambrick was a supervisor.
Hambrick evaluated at least one employee in June
1987. Hambrick admitted that she did performance
evaluations of at least six employees who worked on
her line in 1988 and that she evaluated employees until
Bob Roseberry became her supervisor, which was
some time in September 1988. Former Personnel Di-
rector Erlene Earls testified that performance evalua-
tions were linked to pay raises. Thus, the record estab-
lishes that Hambrick gave employees performance
evaluations for over a year, from June 1987 to Sep-
tember 1988, and that evaluations affected employees’
wages. We conclude that Myrtle Hambrick effectively
recommended pay raises for the employees working
under her from June 1987 to September 1988. We
have previously held that authority to do evaluations
that constitute effective recommendations for wage in-
creases is one indicium of supervisory status.4 We
therefore adopt the judge’s finding that Hambrick was
a supervisor within the meaning of Section 2(11) of
the Act during all times material.
2. The judge found that the Respondent unlawfully
laid off Mildred McKinney and Pattie Allen. The Re-
spondent contends that Allen and McKinney were laid
off as part of a reduction in force due to poor business
conditions and not because of their union activities.
For the following reasons, we agree with the judge’s
finding that the layoffs were unlawful.
Pattie Allen worked on and off for the Respondent
from October 26, 1987, to October 7, 1988, as an as-
sembler. In early January or February 1988, Allen
asked management why she had been transferred to an-
other department. Manager Cecil Farley told her that
he thought she wanted to ‘‘stir up trouble.’’ Allen re-
plied that she ‘‘could stir up trouble if she wanted to,’’
because she had already been in contact with a union
organizer.
In July 1988, Plant Manager Mike Shelton an-
nounced, at a production meeting for all employees,
that he would shut down the plant or move it to a new
location if employees tried to bring in a union. In Au-
gust 1988, Allen asked Plant Manager Jerry Adams
why she had not been promoted to a supervisory posi-
tion for which she had been recommended. Adams’ re-
sponse was that Allen was absent too much,5 but that
‘‘mainly, you’re a union organizer.’’ The following
month Plant Manager Shelton told Allen that she was
a ‘‘known troublemaker’’ and was hated by another
manager and by other employees because of her at-
tempts to organize a union. On October 6, 1988, Allen
523EL-TECH RESEARCH CORP.
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
7 Sec. III,G of the judge’s decision contains a list, extracted from R. Exh.
9, naming 22 employees who were hired at later dates than either Allen or
McKinney. Only one of those on the list was laid off on October 7.
came to Adams with a list of complaints on behalf of
herself and other employees and then requested a raise.
Mildred McKinney worked for the Respondent as an
inspector from April 26, 1987, until October 7, 1988.
In January or February 1988 Judith Fletcher came into
the inspection department and asked McKinney if she
thought a union would be good for employees. McKin-
ney told Fletcher she did not see how it could hurt be-
cause so many employees were having trouble getting
raises. She gave Fletcher a list of employees’ names
and clock numbers.
In July or August 1988, McKinney and other em-
ployees were talking at work about unionizing. Myrtle
Hambrick overheard them and said that she had been
told by management to report anyone heard talking
about the Union and that they would be fired. McKin-
ney then told Hambrick that she felt a union was need-
ed at the plant.
On October 4, 1988, Hambrick approached McKin-
ney and asked her if she had heard of any employees
trying to start a union. McKinney answered no, but
that ‘‘I would be the first damn one to sign for it.’’
When Hambrick replied that she better watch what she
said because she could get fired for talking about the
Union, McKinney said she had just been kidding.
On October 7, 1988, the Respondent laid off 27 em-
ployees. Earlier in the day, Adams had announced that
there was going to be a layoff, that it would not be
done by seniority, and that they wanted to get rid of
the ‘‘troublemakers and gossipers.’’ The Respondent’s
past practice had been to rely on seniority in deter-
mining which employees should be laid off. Witnesses
for the Respondent testified that the criteria on which
the October 7 layoff decisions were based were em-
ployees’ attitude, attendance, and performance.
In Wright Line,6 the Board set forth its test of causa-
tion for cases alleging violations of Section 8(a)(3) and
(1) of the Act. First, the General Counsel must make
a prima facie showing sufficient to support the infer-
ence that protected conduct was a motivating factor in
an employer’s decision. Once this is established, the
burden shifts to the employer to demonstrate that the
same action would have been taken even in the ab-
sence of protected conduct.
We agree with the judge’s findings that the Re-
spondent had knowledge of Allen’s and McKinney’s
union activities, and that neither of them had ever been
disciplined for problems with performance, attendance,
or attitude. In fact, Allen had been recommended for
a supervisory position just 3 months earlier, based on
her performance ratings. Thus, even accepting the Re-
spondent’s assertion that it had legitimate economic
reasons for the October 7 layoffs, it failed to show that
either Allen or McKinney were selected based on the
purported criteria. We also agree with the judge’s find-
ing that the Respondent’s hiring of two inexperienced
employees rather than Allen and McKinney only 5
days after the layoffs belies the claim that the Re-
spondent laid off Allen and McKinney based on non-
discriminatory reasons.
Further, we find it significant that the Respondent
departed from an established practice of laying off em-
ployees in accordance with seniority. When announc-
ing the October 7 layoff, Plant Manager Jerry Adams
stated that the Respondent would not follow seniority.
The Respondent offered no explanation for departing
from its past practice of laying off the less senior em-
ployees first. Further, immediately after announcing
the layoff, Adams said that management wanted to
‘‘get rid of all the troublemakers and gossipers.’’ Fi-
nally, the record establishes that if the Respondent had
relied on seniority, McKinney and Allen would not
have been laid off.7 We find that the change in layoff
procedure during a period of organizing activity is best
explained by Adams’ contemporaneous remark that the
Company wanted to ‘‘get rid of troublemakers and
gossipers,’’ i.e., Allen and McKinney, because of their
organizing efforts.
We conclude that the Respondent has not shown
that it would have laid off Pattie Allen and Mildred
McKinney in the absence of their union activity.
Therefore, the Respondent violated Section 8(a)(3) and
(1) of the Act when it laid them off on October 7,
1988.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 9.
‘‘9. By discriminatorily discharging employees and
laying off other employees because of their union ac-
tivities, the Respondent has violated Section 8(a)(3)
and (1) of the Act.’’
2. Insert the following as Conclusion of Law 10 and
renumber the subsequent paragraph.
‘‘10. By interrogating employees about their union
activities, the Respondent has violated Section 8(a)(1)
of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, El-
Tech Research Corporation, Princeton, West Virginia,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph 1(a) and reletter
the subsequent paragraphs.
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘(a) Interrogating employees about their union ac-
tivities.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) If the Respondent has not already offered rein-
statement, offer Judy Fletcher, Pattie Allen, and Mil-
dred McKinney immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.’’
3. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Remove from its files any reference to the un-
lawful discharge and layoffs and notify the employees
in writing that this has been done and that the dis-
charge and layoffs will not be used against them in
any way.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
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 the following
rights:
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choosing
To act together for mutual aid or protection
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate you about your union ac-
tivities.
WE WILL NOT create the impression among you that
your union activities are under surveillance by us.
WE WILL NOT refer to employees interested in or en-
gaged in union activity as ‘‘union organizers,’’ ‘‘trou-
blemakers,’’ ‘‘rumor starters,’’ ‘‘gossipers,’’ or
‘‘hellraisers.’’
WE WILL NOT threaten you with closing or moving
our plant because you engage in union activity.
WE WILL NOT inform you that you are not consid-
ered for supervisory positions because of your union
activities.
WE WILL NOT threaten you with discharge because
you engage in union activities.
WE WILL NOT inform you that you are hated by
other employees because of your union activities.
WE WILL NOT discharge, layoff, or otherwise dis-
criminate against any employees for organizing or sup-
porting the United Mine Workers of America, or any
other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the right
guaranteed you by Section 7 of the Act.
WE WILL, if we have not already done so, offer Judy
Fletcher, Pattie Allen, and Mildred McKinney imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge and lay-
offs, less any net interim earnings, plus interest.
WE WILL notify Judy Fletcher, Pattie Allen, and
Mildred McKinney that we have removed from our
files any reference to their discharge and layoffs and
that the discharge and layoffs will not be used against
them in any way.
EL-TECH RESEARCH CORPORATION
Paris Favors Jr., Esq., for the General Counsel.
Lawrence E. Morhous, Esq. (Hudgins, Coulling, Brewster,
Morhous & Cameron), of Bluefield, West Virginia, for the
Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. An un-
fair labor practice charge was filed on October 18, 1988, and
an amended charged on November 17, 1988, by Pattie L.
Allen. Unfair labor practices charges were filed on March 13,
1989, by Mildred McKinney, and additional charges filed on
April 3, 1989, by Judy Fletcher against the Respondent. A
complaint, first consolidated complaint, and second consoli-
dated complaint and notice of hearing were filed on behalf
of the General Counsel by the Regional Director for Region
11, respectively, on December 2, 1988, April 25, and May
13, 1989.
In essence, the second consolidated complaint alleged that
since on or about April 18, 1988, Respondent through its su-
pervisors or agents have restrained, coerced, and interfered
with the union activity of its employees by:
(1) Creating the impression among its employees that their
union activities were under surveillance.
(2) Referring to employees engaged in union discussion or
activities as ‘‘trouble makers, rumor starters, and gossipers.’’
(3) Threatening employees with plant closure and plant
movement to another state because of employees’ union in-
terests and activities.
525EL-TECH RESEARCH CORP.
(4) Informing one employee she was awarded a super-
visory position because of her union activities.
(5) Threatening employees with discharge because of their
union activities.
(6) Informing employees they were hated by other em-
ployees because of their union activities.
The second consolidated complaint also alleges that Re-
spondent further coerced, restrained, and discriminated
against employees by discharging an employee, and laying
off two other employees, and thereafter refused to recall ei-
ther because of their union activities.
The Respondent filed an answer to the complaint on De-
cember 19, 1988, an amended answer to the first consoli-
dated complaint on April 25, 1989, and an amended answer
to the second consolidated complaint on May 13, 1989, de-
nying that it had engaged in any unfair labor practices as set
forth in the complaints and the consolidated complaints.
A hearing in the above matter was held before me in
Princeton, West Virginia, on October 17, 18, and 19, 1989.
Briefs have been received from counsel for the General
Counsel and counsel for the Respondent, respectively, which
have been carefully considered.
On the entire record in this case, including my observation
of the demeanor of the witnesses, and my consideration of
briefs filed by respective counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and has been at all times material, a
West Virginia corporation with a plant located at Princeton,
West Virginia, where it is engaged in the manufacture of
electrical computer components.
During the past 12 months, a representative period, Re-
spondent received at its Princeton facility good and raw ma-
terials valued in excess of $50,000 directly from locations
outside the State of West Virginia; and during the same pe-
riod, it shipped from its plant products valued in excess of
$50,000 directly to locations outside the State of West Vir-
ginia.
The complaint alleges, the answer admits, and I find that
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the United Mine Workers of America (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
Respondent owns and operates a plant in Princeton, West
Virginia, where it is engaged in the manufacture of electrical
and computer component.
The parties stipulated that El-Tech Research Corporation
(El-Tech) changed its name to Electronic Systems Manage-
ment Corporation (ESMC) on August 4, 1989.
At all times material, the following named persons occu-
pied the positions set opposite their names, and are super-
visors within the meaning of Section 2(11) of the Act:
Mike Shelton—General manager and vice president of
marketing until September 15, 1988.
Gerry Adams—Became plant manager on September 16,
1988, but no longer services in that capacity.
Erlene Earls—Personnel director until September 16, 1988,
thereafter she became a trainee until October 7, 1988.
John Danes—Formerly plant manager of El-Tech, became
chief operating engineer of ESMC on October 1, 1989.
B. Union Activity of the Employees
Pattie L. Allen worked off and on for Respondent from
October 26, 1987, to October 6, 1988. She returned to work
March 26, 1989, and remained there until August 14, 1989.
On October 6, 1988, Allen was an assembler under group
leader Rovena Lee, who reported to Ralph Leach. Allen
worked on only commercial jobs and was not certified to
perform military work.
In early January or February 1988, Allen and Regina
Oxley were transferred and Allen proceeded to inquire of
Personnel Director Erlene Earls why she was transferred. She
made her inquiry in the presence of Manager Cecil Farley,
while Plant Manager Shelton was standing between the door-
way. Farley replied that he would check into it but he
thought she wanted to stir up trouble. Allen told Farley if she
wanted to stir up trouble she could do so because she had
contacted Danny Surface to organize a union. She said she
had heard talk about a union at the time but the employees
were afraid to do anything about it.
Allen said she knew Judith Fletcher was involved in union
activities in June 1988 because Fletcher had told her she had
been contacted by other employees’ to organize a union; that
they had a prior meeting and she asked Allen if she was in-
terested in helping them get one. Allen told Fletcher, sure,
if she would not lose her job. Thereafter, Allen testified that
she called the Union on October 6, 1988, and the union
meeting was scheduled for October 13. She contacted three
other employees at home by telephone, Darlene Pennington,
Ada Smith, and Barbara McKinney, the day before, and
asked if they would sign a card and attend the union meet-
ing. They said ‘‘yes.’’
The next day she picked up Debbie Mason on the way to
work and asked her if she would be willing to sign a card
to get a union. She said yes, and that she would attend the
meeting October 13. Allen said she also talked to Pennington
and Smith about the Union on the parking lot and at the
lunch table at work. She said she attended the July 1988 pro-
duction meeting where Manager Shelton told the employees
if they brought in the Union he would shut the damn plant—
door—down and move the plant to Baltimore, less than 30
minutes from his home. She said that during a telephone
conversation with Shelton on September 12, 1988, he ac-
cused her of starting a union.
Allen testified that she met with Plant Manager Adams on
October 6, 1988, and read 10 of her dissatisfactions to him
including her involuntary transfer from assembler position to
nonclassified work. Adams was writing down her complaints
and told her he needed more specific data and he would get
back to her the next day. However, the next day, October 7,
1988, Allen was terminated. She said she went home and
called the Union (Danny Surface).
On cross-examination Allen also testified that she tried not
to discuss the Union in the presence of management, and that
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
neither she nor any of the other employees wore a union in-
signia or other object identifying the Union.
Judith (Judy) Fletcher was employed by El-Tech February
12, 1987, to October 3, 1988, and again, from April 4, 1989,
as a quality control inspector. She worked under the super-
vision of Dan Parker who reported first to Mike Shelton and
later to Gerry Adams. Fletcher worked under group leader
Helen Abshire. Although Fletcher was certified to perform
military work she sometimes performed commercial work.
Fletcher testified that she commenced discussing unioniza-
tion with fellow employees in November 1987, before the
Respondent gave employees merit raises. When the plant was
Rockwell, before it became El-Tech, she said it was union-
ized and several employees from there worked with them at
El-Tech. She and other employees would ask the former
Rockwell employees how was the Union, was it fair, and
should they try to organize one at El-Tech. She carried on
her discussions of the Union with the assistance of Lena
Hearld and Darlene Pennington with 25 workers.
Assembler Martha Neeley testified that sometime in De-
cember 1987 while she, Mildred McKinney, Myrtle
Hambrick, and others were in the breakroom someone said
a union drive was starting. McKinney said, ‘‘Well I’ll be the
first to jump on the ban wagon,’’ and Hambrick said, ‘‘If
you do, they will show you the door.’’
Fletcher said she was evaluated in August 1987, and in
January 1988, Respondent gave merit raises to some employ-
ees, but not to herself and others on the line. She and others
on the line questioned line group leader Hambrick, Military
Supervisor Bob Roseberry, Supervisor Erlene Earls, Produc-
tion Manager Cecil Farley, and Manager Mike Shelton about
not receiving a raise. When she went home, Fletcher said she
discussed the raise matter with her husband, who suggested
she contact the wage-and-hour representative of the Depart-
ment of Labor. She called the latter and thereafter called
William Farley of the IUE Union in January 1988. Near the
end of January 1988, she, Lena Hearld, and Darlene Pen-
nington met with Farley at the Park Inn, in Princeton, West
Virginia. Thereafter, they met with him on four or five occa-
sions at the Park Inn.
Mildred McKinney testified that in January or February
1988 Judy Fletcher came into the inspection department and
asked her if she thought a union would be good for the em-
ployees. She told Fletcher she did not see how it could hurt
‘‘because so many of us were having trouble’’ not getting
raises. Fletcher asked for names of employees and McKinney
said she gave her a list of names and clock numbers.
On one occasion in January 1988 when Fletcher and her
husband met William Farley and two of his union representa-
tives at the Park Inn, Gillespie, a general manager of El-
Tech, came into the bar. As he passed her table she and Gil-
lespie mutually recognized each other. He joined two gentle-
men at a table 10 or 15 feet from her table. Occasionally,
Fletcher said she and Gillespie looked at each other. Both of
Farley’s union representatives at her table had their wind-
breakers with the IUE symbol on the back of them hanging
on the back of their chairs, facing Gillespie. As Gillespie de-
parted the Inn she noted that he looked at her party table.
Fletcher also testified that she, Darlene, and Lena would
tell Supervisor Roseberry and Cecil Farley that things would
improve if they organized a union. She said they continued
their union efforts until March 1988 when there was a layoff,
and they discontinued their organizing activity because they
did not want to lose their jobs.
Darlene Pennington testified that before the July 1988 pro-
duction meeting she had heard employees discussing the
Union. Rovena Lee testified that before the October 1988
layoff she had heard Pattie Allen, Mildred McKinney, and
Judy Fletcher discussing the Union; and that she was inter-
ested in the Union, and while on the job, would discuss with
them the benefits of a union and how to organize one. Jea-
nette Brooks also testified that before October 1988 she too
heard employees discussing the Union in the plant. However,
she said to her knowledge, no one had informed management
about it.
Judy Fletcher further testified that while near the work sta-
tion of Myrtle Hambrick in August or July 1988 she and
other employees were talking about the Union. Hambrick
came to them and told them that she had been informed that
she was to report to the front office any one who was caught
talking about the Union, and that such employee or employ-
ees would be fired immediately. Fletcher said as loud as the
conversation was Mildred McKinney, Tammy Francis, and
practically everyone on the line could hear it. She looked at
Hambrick and said, ‘‘it sure couldn’t hurt,’’ and McKinney
said she felt that a union was needed.
Donna Reed, who had worked on the line for Myrtle
Hambrick, testified that sometime around August or Sep-
tember 1988 when she started working on the line in weap-
ons spec, she, Judy Fletcher, and others discussed unioniza-
tion. Judy Fletcher said something about a union and
Hambrick, who was standing nearby, said ‘‘I’ll tell you right
now, . . . if anybody hear you say anything about the union,
you will be fired.’’ Fletcher said, ‘‘Well we need a union
around here. That way all these men wouldn’t be walking
around here with their hands in their pockets.’’ Hambrick
said, ’’Well it came from the front and they told us if we
heard anybody talking about the union, we are to come up
there and tell them and that you would be fired.’’
Conclusions
Without deciding at this juncture whether Myrtle
Hambrick is a supervisor within the meaning of the Act, it
is clear from the undisputed testimony of Pattie Allen, Judy
Fletcher, Mildred McKinney, and Martha Neeley that union
activity of the employees commenced in Respondent’s plant
about November 1987 and continued until the layoffs in
March 1988. It is also clear from the corroborated and
uncontroverted testimony of Pattie Allen, Judy Fletcher, Mil-
dred McKinney, Darlene Pennington, Donna Reed, Rovena
Lee, and Jeanette Brooks that union activities of the employ-
ees resumed in Respondent’s plant in July and August 1988,
and was still in progress at the time the layoff occurred in
early October 1988. I was persuaded by the demeanor of the
above-named witnesses that they were testifying truthfully,
and their undisputed testimony in this regard, is consistent
with the credited evidence of record.
Consequently, I find on the above-credited testimony and
other uncontroverted and credited evidence of record, infra,
that union activity of the employees was in progress in Re-
spondent’s plant from November 1987— March 1988, and
again during July—October 1988; that Pattie Allen, Judy
Fletcher, and Mildred McKinney spearheaded the latter union
organizational activity; and that Respondent had knowledge
527EL-TECH RESEARCH CORP.
of their union interests and activities as further shown under
section C, infra.
C. The Supervisory Status of Myrtle Hambrick
The second consolidated complaint alleged that Myrtle
Hambrick was at all times material a supervisor within the
meaning of the Act. Respondent has denied that Hambrick
is or was a supervisor within the meaning of the Act, and
contends that Hambrick was and is a group leader—lead per-
son.
The complaint also alleges that in her supervisory capacity
Hambrick committed certain 8(a)(1) conduct for which the
Respondent is legally responsible. Since the alleged super-
visory status of Hambrick is in dispute, the evidence of her
status will be evaluated before considering the legality of her
alleged unlawful conduct.
The Charging Parties and counsel for the General Counsel
contend that although group leader Myrtle Hambrick and the
Respondent maintain that Hambrick and other group leaders
were not supervisors the evidence will show that they were
in fact supervisors within the meaning of the Act.
Section 2(11) of the Act defines a supervisor as one who
has ‘‘authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign, re-
ward, or discipline other employees, or has responsibility to
direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing
the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judg-
ment.’’ Iron Mountain Forge Corp., 278 NLRB 255, 257
(1986).
In evaluating the evidence of supervisory status of an em-
ployee, the Board has held that it is the function, duties, and
authority of the individual, rather than his or her title, which
are significant in determining supervisory status. Marukyo
U.S.A., 268 NLRB 1102 (1984), citing Golden West Broad-
casters-KTLA, 215 NLRB 760, 761 (1974).
Evidence
Cecil Farley was manufacturing manager and second shift
manager for operations for the Respondent during 1988. He
testified that lead persons did not have supervisory authority
and their duties were limited to ensuring that employees had
tools and necessary materials. Sometimes they worked on the
line with employees and they had no authority to hire, fire,
or establish working conditions for employees.
Respondent’s personnel director, Terry Ann Philpott, testi-
fied that lead persons are hourly paid and have timecards and
supervisors do not. She said she had a timecard for Pattie
Allen for June, July, August, and September 1988.
Jeanette Brooks testified that her job title was group leader
and she was required to see that employees were doing their
jobs. She said she and Myrtle Hambrick did the employees’
timecards; and that without having to check with supervisors,
she gave her employees permission to take sick leave, and
did not require them to present a doctor’s excuse unless they
were absent 3 days or more. However, on orders from Super-
visor Jim Camp, she did require a doctor’s excuse from Pat-
tie Allen for being out sick 1 day (3–89). She said she had
never given employees permission to leave early unless they
were ill. If an employee was late, she said she would ask
them why, and if she did not think the employee’s expla-
nation was reasonable she reported it to her supervisor, who
took it from there.
Periodically, she evaluated employees’ performance, con-
duct, and safety habits.
Brooks had as many as 42 employees working under her
at one time. She would find out what her employees’ needed
to do by talking directly to Respondent’s customers (Solarex)
on a day-to-day basis. She said Hambrick did not do this, it
all depended on your supervisor. She also trained employees.
Myrtle Hambrick testified that her job title was group lead-
er and that in October 1988 her supervisor was Bob
Roseberry; and that he sat up production schedules, gave
them to her, and that she saw to it that employees on her
line got the work done. She helped them on the line when-
ever she was not busy otherwise.
Hambrick further testified that she also checked line em-
ployees’ timecards to see that they were accurate for job
numbers and time, and she turned them in to Supervisor
Roseberry, who signed them unless he was absent. If he was
absent, she signed them.
Hambrick acknowledged that:
(1) She is hourly paid.
(2) She did the performance evaluation on Mildred
McKinney before she had a supervisor on the floor and
because she said she was asked to do so by Kellog and
Weikle (supervisors). She also acknowledged that she
did the performance evaluation on six other employees
at the same time.
(3) She has to fill out an accident report if employ-
ees are hurt on the job.
(4) She was in the training class with her supervisors
and office personnel on one occasion, but she could not
recall the approximate date.
(5) Her supervisor allowed her to permit employees
with a doctor’s or dental appointment to leave the job,
so long as she informed him.
(6) She testified that she was given the password to
the MAPICS-II System for input, but not for output,
and she was the only lead person with it. More specifi-
cally, counsel for the General Counsel’s Exhibit 30 de-
scribes Hambrick’s password authority as follows:
(7) In further support of his contention that
Hambrick exercised indicia of supervisory authority,
counsel for the General Counsel’s Exhibit 30 from the
personnel file of Hambrick was submitted and reads as
follows:
USER AND PASSWORD ACKNOWLEDGEMENT
STATEMENT
TO: MYRTLE HAMBRICK
You are hereby provided with the following USER
ID and PASSWORD to access MAPICS-II software
through IBM System/36 Terminal. It must be realized
that this USER ID and the PASSWORD are exclusively
provided to you to access the particular module of
MAPICS-II. You will only have the access to the mod-
ules which are authorized to you through specific
MAPICS-II Security System.
Individual USER ID and PASSWORD are very con-
fidential information and these, under no circumstances,
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I credit the essentially uncontroverted testimony of Helen Abshire, Rovena
Lee, Jeanette Brooks and Myrtle Hambrick, although I do not accept any de-
nial by them of supervisory authority because those terms are technical and
constitute a legal conclusion. I was persuaded by the demeanor of each of
these witnesses that their testimony otherwise was essentially truthful.
could be displayed, exchanged, or shared with other
employees. It is a company security policy and it must
be obeyed by all personnel. If you feel that your USER
ID and/or PASSWORD are disclosed to others, please
inform Mike Shelton immediately.
Your cooperation in this matter will be highly appre-
ciated.
* Your USER ID = Myrtle Hambrick
Conclusions
It may be reasonably inferred from Hambrick’s having
been given the password to the MAPICS-II System that she
also had authority to prepare production or progress reports
and documentation procedures as outlined in the General
Counsel’s Exhibit 29, with privileged access to put such data
into the MAPICS System. If she did not prepare, collect, or
submit such data for reports on a regular or alternate basis,
she would not have had a need for access to MAPICS.
Also from Hambrick’s personnel file is General Counsel’s
Exhibit 29 describing specific functions giving her an oppor-
tunity to master on a percentage scale:
For: Benchmarks 2 & 3
COMPANY: EL Tech Research
PARTICIPANT Hambrick, Margarette
TRAINING AREA ASSEMBLER III
Task
Date Mastered
1. Make decisions
regarding work
assignments and
schedules
llllll
2. Qualify for
WS6536E
llllll
3. Coordinate with
Production Control
llllll
4. Blueprint
specifications
llllll
5. Performance
evaluations
llllll
6. Personnel relations
and procedures
llllll
7. Progress reports and
documation procedures
lllll 1
Conclusions
Although the above form (G.C. Exh. 29) does not indicate
when or what percentage of the enumerated functions
Hambrick has mastered, it is clear that she was authorized,
and has in fact exercised the additional decision-making au-
thority of assigning work to line employees, evaluating the
work performance of Mildred McKinney and six other em-
ployees, and has performed personnel relations and proce-
dures functions by having authority to fill out accident re-
ports.
33% of the job related tasks for this participant have
been mastered
lllllllll llllllllllll
Instructor’s Signature Participant’s Signature
llllllllll llllllllll
Date Date
In determining the supervisory status of Myrtle Hambrick,
it is first observed that the evidence of whether or not Re-
spondent’s lead persons had, or actually exercised super-
visory authority is not consistent. While the evidence is con-
sistent that employees with the title ‘‘group leader’’ or ‘‘lead
person’’ do not have the authority to hire, fire, suspend,
transfer, lay off, recall, or promote employees, the evidence
is otherwise inconsistent with respect to the authority of
group leaders to assign work, direct execution of some work,
and exercise other indicia of supervisory authority.
In this regard, it is noted that Group Leader Helen Abshire
only coordinated work assignments of the employees that
was submitted to her by line supervisors. Hence, with the es-
sential absence of more probative indicia of supervisory au-
thority, I find that Helen Abshire was a group leader and not
a supervisor within the meaning of the Act.
Group Leader Rovena Lee assigned work to employees
after she was told what needed to be done by supervisors.
However, she could recommend the discharge of an em-
ployee and collaborate with, or join supervisors in the dis-
ciplinary decision and actions taken. Moreover, Lee effec-
tively recommended a pay raise for employee Pattie Allen
who worked under her direction, and Allen did in fact re-
ceive the pay raise. Since the exercise of such indicia of su-
pervisory authority by Lee was in the interest of the Re-
spondent, was not of a merely routine nature, and required
the exercise of independent judgment on her part, I find Lee
is a supervisor within the meaning of the Act.
Demonstrating even greater exercise of indicia of super-
visory authority is Group Leader Jeanette Brooks. In addition
to seeing that employees are doing their jobs, Brooks did
their timecards, unilaterally gave them permission to take
sick leave, did not require them to present a doctor’s excuse
unless they were absent 3 days or more, and periodically
evaluated their work performance.
If employees were late, Brooks would ask them for an ex-
planation, and if she did not deem their explanation suffi-
ciently reasonable, she reported the fact that they were late
to her supervisor. Significantly, Brooks has had as many as
40 employees working under her direction at one time. No
other group leader was shown to have had as many employ-
ees work to oversee, as did Brooks.
I am therefore persuaded by the evidence that such respon-
sible authority entrusted to and exercised by Brooks was in
the interest of the Respondent, was not of a merely routine
or clerical nature, but involved the exercise of independent
judgment by her. Consequently, I find Jeanette Brooks exer-
cised sufficient indicia of supervisory authority that she is in
fact a supervisor for the Respondent within the meaning of
the Act.
Another classical demonstration of indicia of supervisory
authority is the collection of authoritative responsibilities car-
ried out by Myrtle Hambrick. Although Hambrick’s job title
is group leader, the foregoing essentially uncontroverted and
credited evidence shows that Hambrick, who is hourly paid:
529EL-TECH RESEARCH CORP.
2 I credit the testimonial account of Donna Reed and Mildred McKinney.
Not only are their accounts undisputed but they are essentially corroborative
of each other. Moreover, I was persuaded by the demeanor of Reed and
McKinney that they were testifying truthfully in this regard, and their accounts
are consistent with all of the credited evidence of record.
a. Saw to it that employees on her line got the work
out and she helped them on the line when she was not
busy otherwise.
b. Checks the employees’ timecards for accuracy of
job numbers and turned them in to her supervisor.
c. Signs the timecards when her supervisor,
Roseberry, is absent.
d. Did performance evaluation on Mildred McKinney
and six other employees.
e. Fills out an accident report whenever an employee
is injured on the job.
f. Is the only group leader entrusted by the Respond-
ent with the confidential password for privileged access
to the MAPICS-II IBM System for input of informa-
tion.
g. Attended a training class with supervisors and of-
fice personnel.
h. With the knowledge of her supervisor, allows em-
ployees with a doctor’s or dental appointment to leave
the job and thereafter inform her supervisor of such
fact.
Consequently, considering the above described duties per-
formed by Hambrick, it is clear that the authority and the
execution of all such functions were on behalf of, or in the
interest of Respondent Employer. Such functions are not of
a routine or clerical nature, and several of them require the
exercise of independent judgment. Additionally, Hambrick
was the only employee with the job title of group leader who
had access to the MAPICS System. Thus, it is clear from the
foregoing evidence of Hambrick’s attending training class
with supervisors, as well as other evidence in the record,
infra, that Hambrick is more closely aligned with manage-
ment than she is with fellow employees. I therefore conclude
and find upon the foregoing evidence of record and the
aforestated reasons that Myrtle Hambrick is a supervisor
within the meaning of the Act.
D. Creating the Impression of Surveillance
According to the corroborated and credited testimony of
Donna Reed, not long before Judy Fletcher was laid off in
October 1988, she heard Fletcher say something about a
union. Group leader on the line, Myrtle Hambrick, who was
standing nearby, said, ‘‘I’ll tell you right now . . . if any-
body hears you say anything about the Union, you will be
fired.’’ Fletcher said, ‘‘Well, we need a union around here.
That way all these men wouldn’t be walking around with
their hands in their pockets.’’ Hambrick said, ‘‘Well it came
from the front and they told us if we hear anybody talking
about the union, we are to go up front and tell them and the
employee would be fired.’’ Judy Fletcher corroborated the
above testimonial account of Donna Reed as having taken
place between July and August 1988. I do not consider this
difference in the estimated time of the occurrence as having
an adverse affect upon the credibility of either witness. The
differences are reasonable differences in estimating time.
Fletcher further testified that as loud as the conversation was
it could be heard by Mildred McKinney, Tammy Francis,
and practically every other employee on the line. Fletcher
said she looked at Hambrick and said, ‘‘A union sure
couldn’t hurt.’’
Mildred McKinney testified that 3 days before she was
laid off on October 7, 1988, Myrtle Hambrick asked her had
she heard anything about a commercial employee trying to
organize a union. She told Hambrick she had not heard about
such an effort, but that she would be the first damn one to
sign for it because she was mad about another male em-
ployee receiving a raise. Hambrick said, ‘‘I better watch
what I said, because I could get fired. McKinney said she
told Hambrick she was just joking.’’ She said she knew
Hambrick was going to tell management.2
Conclusion
Since Myrtle Hambrick has been previously found a super-
visor within the meaning of the Act, her statement to Reed
and McKinney that they were being watched by manage-
ment, and if they are heard talking about the Union she,
Hambrick, and other unnamed persons were instructed to re-
port them to management and they would be fired. Such
statement by Supervisor Hambrick clearly created the im-
pression among the employees that their union activities
were under surveillance by the Respondent; and also con-
stituted a threat by management to discharge them for engag-
ing in union discussions and other union organizing activi-
ties.
I therefore conclude and find upon the foregoing credited
evidence that by creating the impression among employees
that their union activities were under surveillance, and by
threatening to discharge them for engaging in union activi-
ties, Respondent has coerced and restrained employees in the
exercise of their Section 7 protected rights, in violation of
Section 8(a)(1) of the Act.
E. Organizing Employees Called ‘‘Union Organizers,’’
‘‘Rumor Starters,’’ and ‘‘Gossipers,’’ and One Such
Employee Told She Would Not be a Supervisor Because
She was a ‘‘Union Organizer’’— ‘‘Hellraiser’’
Erlene Earls, Respondent’s personnel director and security
officer prior to the October 7, 1988 layoff, testified that in
June 1988 Allen’s supervisor, Peggy Bailey, told her what a
good worker Allen was. Mike Shelton also told her Allen
was a good worker and that she would make a good super-
visor because people would listen to her. In August 1988,
Shelton said he should make Allen a supervisor. Supervisory
jobs would be posted and Allen would apply for them but
she would not be selected. Earls said Allen came to her and
inquired why she was not being considered for any of the
positions posted. Earls said she took Allen to Plant Manager
Gerry Adams and asked why Allen was not being considered
for the positions. Adams asked Earls to get Allen’s folder.
She gave Adams Allen’s folder and he looked at it and said,
‘‘Well, the main thing is, she’s absent too much.’’ However,
he turned around to Allen and said, ‘‘but you are a union
organizer.’’ As Earls was taking notes, which was her cus-
tomary duty, Adams told her to put the ‘‘GD’’ pencil down,
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Although Adams may have denied making the statements attributed to
him by Earls, I nevertheless credit Earls’ testimonial account and discredit
Adams’ denial, because I was persuaded not only by the demeanor of Earls,
but also by the credited evidence in this record, that she was testifying truth-
fully, and Adams was not. Moreover, as noted below, Earls’ testimonial ac-
count corroborates the testimonial account of Allen that while in Earls’ office
Shelton told Allen, ‘‘You are a union organizer.’’
he was tired of her note writing. She complied with his com-
mand.3
Mildred McKinney testified that on the morning of Octo-
ber 7, 1988, Plant Manager Gerry Adams called in all the
employees and told them there was going to be a layoff, and
it was not going to be according to seniority; and that man-
agement was going to get rid of the ‘‘troublemakers and gos-
sipers.’’
Pattie Allen testified that while on sick leave she tele-
phoned Mike Shelton on or about September 12, 1988, to in-
form him when she would be returning to work. During that
telephone conversation she asked Shelton about a supervisory
position which she did not get. Shelton told Allen she did
not get the supervisory position because Cecil Farley hated
her. He said, ‘‘Well, you know you’re a union organizer and
I’ve been told this before by people in supervision; that
many employees at the plant hate you because you are a
known and troublemaker.’’ When Allen told him she was not
Norma Ray and she was not going to organize a union,
Shelton said she was a ‘‘hellraiser.’’ Shelton nevertheless
told Allen to report to work and have personnel change her
job title to senior repair person, with a substantial pay in-
crease.
When Allen reported to work on September 14, 1988, she
learned that the position was not a supervisory position as
she had previously believed.
Conclusions
Although the testimonial accounts of Mildred McKinney
and former Personnel Director and Trainer Erlene Earls, re-
garding management’s use of the terms ‘‘troublemakers,’’
‘‘union organizers,’’ and ‘‘gossipers’’ are not entirely con-
sistent, they nevertheless have a ring of consistency, are cor-
roborative of each other, and are supported by other credited
evidence of union animus in this record. In this regard,
McKinney’s statement that on October 7, 1988, Manager
Gerry Adams said management ‘‘was going to get rid of the
troublemakers and gossipers’’ is essentially supported by Pat-
tie Allen’s account that Manager Mike Shelton told her she
was a ‘‘union organizer, troublemaker and hell raiser,’’ and
that many employees in the plant hated her because of her
union interest. Allen’s account is partially corroborated by
Erlene Earls’ account, who said she heard Manager Adams
tell Allen, ‘‘You are a union organizer.’’
Not only are the use of the above descriptive appellations
by Respondent’s management persuasive probative evidence
that they were uttered by management, but I was equally per-
suaded by the demeanor of McKinney, Allen, and Earls that
they were testifying truthfully. Neither Respondent nor Gen-
eral Counsel produced Manager Mike Shelton as a witness
in this proceeding, and I was not persuaded by the demeanor
of Gerry Adams that any denial of the above statements at-
tributed to Shelton or himself by McKinney were truthful.
Consequently, I credit the accounts of McKinney, Allen, and
Earls and discredit any denials by Adams.
Since Managers Shelton and Adams made such references
(union organizers, rumor starters, gossipers, or hellraiser)
during mid-September and October 7, 1988, when union ac-
tivities of the employees were in progress, and of which fact
the record has demonstrated Respondent had knowledge, I
find such appellations (union organizers, troublemakers, gos-
sipers, rumor starters, and hellraisers) clearly had reference
to the employees engaged in concerted or union activities.
This being so, such appellations are obvious manifestation of
union animus, which had a coercive and restraining effect
upon the exercise of the employees’ protected Section 7
rights, and were in violation of Section 8(a)(1) of the Act.
Construing the above-quoted language attributed to
Shelton about the supervisory position, it appears that
Shelton’s response to Allen was simply an affirmative con-
firmation of her stated understanding; namely, that she was
(supposed) to get the job, but his response in fact implied
she did not get the position. Shelton told Allen her under-
standing that she was to get the job was correct, and that he
had confirmed the same supposition when he talked to her
husband. At most, it appears that Shelton implied that Allen
was simply being considered for the job. This conclusion ap-
pears correct when it is noted below that Manager Gerry
Adams, as well as other managers who voted for the selec-
tion, had some input in the selection for the position.
The evidence does not show that Shelton told Allen you
have the job, or the job is yours.
Moreover, it is noted that Shelton told Allen ‘‘we will talk
about it when you [and Lauretta Ball] return’’ from Balti-
more. When Allen returned, she spoke to Shelton about the
position and he told her she did not get the votes from man-
agement, although she got his 13th vote. He told her other
positions would be coming up.
Additionally, Plant Manager Gerry Adams’ reaction to his
review of Allen’s file, according to Erlene Earls, was ‘‘well
the main thing is, she is absent too much,’’ and he looked
at Allen, who was present, and said, ‘‘but you are a union
organizer.’’
Since Allen’s testimony that Shelton called her a ‘‘union
organizer’’ is indirectly supported by Earls’ account of what
Manager Adams said to Allen (‘‘you are a union orga-
nizer’’), I was persuaded by the demeanor of Allen, Earls,
and Adams that Allen and Earls were testifying truthfully
and Adams was not. I credit their accounts and discredit
Adams’ uncorroborated account. Moreover, Allen and Earls’
accounts are consistent with the total credited evidence of
record that Shelton and Adams (Respondent) referred to
Allen as a ‘‘union organizer.’’
I therefore conclude upon the foregoing credited testimony
and evidence of record, that Respondent (Shelton and
Adams) clearly implied to Pattie Allen that she was not con-
sidered for the supervisory position for which she applied be-
cause she was a union organizer; that such antiunion state-
ment by Respondent has a restraining and coercive affect
upon the exercise of employee’s protected Section 7 rights,
and is in violation of Section 8(a)(1) of the Act.
F. Respondent Threatened to Close Plant if Employees
Engaged in Union Organizing Activities
In this regard, former director of personnel and security
officer for Respondent, Erlene Earls testified that whenever
Plant Manager Mike Shelton returned from an out-of-town
531EL-TECH RESEARCH CORP.
trip, he asked her ‘‘how is our little union getting alone . . .
that whether you know it or not, we already have one in the
back [referring] to a little area in the back of the plant where
Pattie Allen and three or four other employees worked.’’
Shelton said it goes on all the time. Earls said she told
Shelton she did not know anything about it and that the girls
needed to talk to him.
Consequently, in July 1988, Shelton called a meeting of
the commercial workers in the conference room. During the
meeting Earls said she heard Shelton tell the employees,
‘‘You all go ahead and form a union if you want to . . . if
you do, we’ll close the plant the next day.’’
Correspondingly, employee Martha Neeley testified that on
or about July 7 or 8, 1988, she attended a meeting of ap-
proximately 40 commercial employees, during which Plant
Manager Shelton said some of the employees have been talk-
ing about the Union and ‘‘he would shut down the plant’’
before he would let the union come in.’’ Shelton had a tape
recorder on the table by his elbow at the time.
Neeley further testified that Shelton also told the employ-
ees they were lax in their production and he could go to the
pool hall and get drunks who could do a better job then they
did. Several employees asked what could the employees do
to improve performance. Shelton said, ‘‘quit talking about
the union and work more.’’
Also in this regard, employee Darlene Pennington testified
that Manager Shelton stated during the July 1988 meeting
that ‘‘before the union came in there, they would close the
doors and move the plant . . . to Maryland, because it was
about 30 minutes from where he lives.’’ Shelton had a tape
recorder on the table.
Rovena Lee also testified that during the July 1988 meet-
ing with the production employees, Manager Shelton told
them ‘‘before he would see a union in the plant, he would
close it down and move it up to Maryland at his home.’’ Lee
said Shelton also told the employees he could go to Joe’s
Bar and Grill and get people to do their work; that trained
monkeys could do what they were doing. Shelton had a tape
recorder on in the room at the time.
Jeanette Brooks testified that during the July 1988 meeting
with the employees Manager Shelton told the employees
‘‘anyone caught talking about the Union or trying to form a
union would be immediately terminated and the plant closed
and moved to Reston.’’ She said Shelton had a tape recorder
in front of him.
Brooks further testified that she used to live with Super-
visor Jim Camp in the Company’s condo off and on from
early October 1988, and consistently from January to April
1989. In October, during a meeting of Camp, Virgil Clark,
and Shelton, Brooks said she heard them agree that the plant
should not be unionized. Shelton repeated his previous state-
ment to the employees, that if the Union came in, the plant
would automatically close and would be moved to Reston.
Employee Judy Fletcher testified that during a meeting she
heard Manager Shelton tell the employees ‘‘if they got a
union, he could shut down the plant and there was a place
near Reston where he could move it.’’
Conclusions
Manager Mike Shelton did not appear and testify in this
proceeding and the corroborating testimonial accounts of
Neeley, Pennington, Lee, Brooks, Earls, and Fletcher are es-
sentially uncontroverted in the record. Not only are their tes-
timonial accounts essentially consistent, but I was persuaded
by the demeanor of all of the witnesses that they were rel-
atively sure of their respective accounts and truthful in re-
vealing what Shelton had said to them. Their accounts are
also consistent with the overall credited evidence of record.
I therefore conclude and find upon the foregoing credited
evidence that in July 1988 Respondent (Manager Shelton)
threatened employees that Respondent would close the plant
and move it to Maryland or Reston if the employees orga-
nized a union. Such a threatening ultimatum given by Re-
spondent to the employees had a coercive and restraining ef-
fect upon the exercise of the employee’s protective Section
7 rights, and is in violation of Section 8(a)(1) of the Act.
G. Respondent’s Alleged Discharge of an Employee and
Its Layoff of Two Others Because of Their
Union Activities
The Charging Parties and counsel for the General Counsel
contend that Respondent discharged Judy Fletcher and laid
off Mildred McKinney and Pattie Allen because of their and
other employees’ union activities.
Respondent contends Fletcher was terminated for an unex-
cused absence while on 30 days’ probation; and that McKin-
ney and Allen were laid off as a result of a reduction in
force due to financial difficulties of the Respondent, and not
for their union activities. Respondent further maintains that
the layoff of Fletcher, McKinney, and Allen, and other laid-
off employees was inevitable, as a result of the low produc-
tion and financial difficulties of the Respondent’s business.
In that regard, Respondent contends the October 1988 lay-
offs were occasioned by poor business and financial consid-
erations. Martha Neeley testified that since September 1988
Plant Manager Gerry Adams had been telling employees in
production meetings that the Company’s production was los-
ing contracts and money. Orders were not coming in since
May 1988.
Darlene Pennington testified that when Manager Adams
first came he told them management would be taking a cut
in pay because the Company was having production prob-
lems and difficulty in paying its bills. However, she said the
employees did not learn there would be a layoff until Octo-
ber 7, 1988.
Donna Reed testified that the employees were periodically
told by Manager Adams that if production did not pick up
some of them may not be there. She said they did not know
from one day to the next if they would have a job. Three
weeks later, there was a layoff.
Rovena Lee testified she attended a meeting in September
1988 when Manager Adams arrived on the job, but she does
not recall him saying anything about layoffs.
Former managerial employee Erlene Earls testified that
Respondent was experiencing financial problems ever since
it was in business. She said she was not informed the Octo-
ber layoff was due to financial reasons.
Helen Abshire testified she could see business was bad
and Manager Adams kept talking about business being poor
and there may be layoffs.
Gerry Adams testified he was hired by Respondent as
plant manager from September 1988 until February 1989.
When he arrived, he said Respondent was not making a prof-
it, efficiency was down, and there was a morale problem. He
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made an assessment of company resources and found that
Respondent was overstaffed and was not making its produc-
tion requirements. Several employees testified that Shelton
discussed low production with them in meetings prior to the
arrival of Adams.
In September, Adams said he realigned and went from
20,000 to 100,000 billings until Respondent ran into material
problems. Based on these findings, a layoff was implemented
October 7, 1988, predicated on performance and attendance
as evaluated by line supervisors. Consequently, 20 to 38 em-
ployees were laid off in October 1988 and supervisors took
an across-the-board cut in pay. The entire industry was mak-
ing adjustments. However, the pay cuts was restored in Janu-
ary 1989 when business had improved.
Jeanette Brook testified that business improved in January
1989 when Respondent received the Solarex contract. Man-
ager Adams denied having any knowledge of the employees’
union activities, including any such activities by Pattie Allen.
With respect to the termination of Fletcher and the layoff
of McKinney and Allen, the question presented for deter-
mination is one of mixed motives for their separation.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board held that the causation test in all cases alleging viola-
tion of Section 8(a)(3) or Section 8(a)(1) of the Act, turning
on employer motivation, the following shall be established:
(1) The General Counsel shall make a prima facie
showing sufficient to support the inference that protec-
tive conduct was a ‘‘motivating factor’’ in the employ-
er’s discharge decision.
(2) Once the above has been established, the burden
shifts to the employer to demonstrate that the same ac-
tion would have taken place even in the absence of the
protective conduct.
Amid the union organizing activities of the employees and
Respondent’s knowledge of those activities as established
under section B, supra, Respondent discharged Judy Fletcher
and laid off Mildred McKinney and Pattie Allen as described
below.
The uncontradicted testimony of Judy Fletcher shows that
she worked day shift from 8 a.m. to 4:30 p.m., February 12,
1987, until October 3, 1988. During the preceding 13 years,
Fletcher had attended Friday afternoon or evening high
school football games and had missed only five games. Sev-
eral weeks before October 1988, Fletcher said she was called
to the office of Supervisor Dan Parker. He informed her he
was starting a second shift and needed a very reliable inspec-
tor like herself to oversee the operations and that the job
would pay more because of the shift differential. Fletcher
continued to testify as follows:
A. Well, I told him I would have to discuss it with
my husband. And he says, well, can you go call him?
I did. I went out and I called him. And when I come
back I told him, I said, well, I said, it sounds good but
there is just one problem. And he asked what that was.
And I told him, I said that for the last several years,
over 10 years, I had been going to my high school foot-
ball games And that I had only missed like 3 games in
the last, I believe it was 12 or 13 years, and that I did
not want to start missing them now. I actively sup-
ported them. I knew the boys that were playing. I was
in the Booster Club and that I did not want to miss the
football games.
He told me, he said, well, we can work something
out for that.
Supervisor Dan Parker did not appear and testify in this
proceeding. Consequently, Fletcher’s above testimony that
Parker told her they could work out something about the sec-
ond shift conflict with the football game schedule is
undenied in the record.
Fletcher further testified that lead person Helen Abshire
and Allison Fleeman asked her if she was going to take the
second shift. She told them the only way she would take it
was if she could work out something for her to continue to
attend the football games. She said both Abshire and
Fleeman told her if she took the evening shift they would
work with her by coming into work in her place on Fridays
at game time. Fletcher said she then told Supervisor Parker
she would take the second shift, on the condition that she
would be allowed to be off on Friday afternoons or evenings
to attend football games; that she was willing to go in and
work on Saturdays to catch up since the products are not
shipped until Mondays; and that Abshire and Fleeman said
they would help her with such an arrangement by working
in her place. Fletcher said she gave lead person Abshire the
game time schedule when Fletcher would need to leave the
job.
Abshire did not acknowledge or deny the latter testimony
of Fletcher. Instead, she testified that Fletcher told her she
had an arrangement with Supervisor Dan Parker to attend the
football games on Fridays. She acknowledged she did go into
cover for Fletcher one Friday night, because there were no
inspectors on the job. According to Fletcher, on August 26,
1988, she left work at 6 p.m. On the same day, Abshire left
work at her normal quitting time, 3:30 p.m., went home, had
supper, returned to the job, and worked for Fletcher. For the
next game, Friday, September 2, Fletcher said she left work
at 7 p.m. and Abshire came in for her again and worked for
her. The following week Gary Sutliffe was hired as an in-
spector to help Fletcher.
The next game was out of town on September 9 and In-
spector Gene White came in to work for Fletcher, including
working with Sutliffe. In preparation for the next game at
home on September 16, Fletcher asked Abshire on Thursday
whether she needed to get someone to work with Gary
Sutliffe on Friday, and Abshire, who had been working with
Sutliffe, said he seemed to be doing very well; that he had
caught on very well and that she did not think he needed any
help. Fletcher agreed with Abshire and she left work at 7
p.m. on Friday, September 9. She reported to work on Satur-
day, September 10, and asked Peggy White, the commercial
supervisor, did Sutliffe have any problems. White said there
were no problems and Sutliffe had done very well.
The game on September 23 was out of town and Fletcher
testified that she asked Abshire if any body needed to fill in
with Sutliffe and Abshire said he had been doing so well
there was no need to do so, but she should just make sure
he had his paper work. Fletcher got the paper work for the
job for Sutliffe and asked him if there was anything that he
was going to need. She said half of the work for today had
533EL-TECH RESEARCH CORP.
been done so Fletcher left work at 5:30 p.m. Sutliffe told her
to have a good time and wished her good luck.
Fletcher reported to work on Saturday, September 24, an
hour late, 4:30 p.m., because she and her husband had an
automobile accident on the way in. When she arrived,
Abshire was there, and so was Plant Manager Gerry Adams.
She told Adams about the accident and he left. Abshire told
her there had been a slight problem Friday night. Farley had
told Gary Sutliffe to stop working on the job he was work-
ing, and work on another job. Consequently, Sutliffe did not
have the paper work for the job Farley directed him to per-
form. Sutliffe called Abshire and she returned to the job, got
the paper work for Sutliffe, and went back home.
When Fletcher returned to work on Monday, September
26, she was told to report Dan Parker. When she reported,
he told her to sit down, asked her why she had not informed
any one she was leaving on Friday. She told him she had
informed Abshire, who she always tell. Parker said Abshire
told him Fletcher did not inform her she was leaving. Fletch-
er continued to testify:
So, I went back to the work area and got Helen and
brought her back up. And he asked her, he says, Judy
says that she did tell you that she was leaving. And
Helen says, well, if she says she did she probably did.
Says, I was just so busy I didn’t pay a lot of attention.
So, Helen left and he handed me a paper and told
me to read it.
Q. What was the paper?
A. The paper was a warning that—where I had been
wrote up that I had jeopardized the Company’s produc-
tion schedule or something by leaving and not having
somebody there.
Below is General Counsel’s Exhibit 6, the warning to Fletch-
er:
Friday, Sept. 23, 1988, was a normally scheduled
work day. Employee left early leaving new untrained
employee by himself to support all of 2nd shift. Em-
ployee failed to notify department supervision, nor did
employee make any arrangements for coverage by an-
other trained inspector as she did on (2) previous occa-
sions.
Employee severely jeopardized 2nd shift schedules
and product acceptance. Employee will be notified that
leaving work without notice given to supervisor is a se-
rious offense which may lead to immediate termination.
It is further noted that the inspection GRP.LDR. had
to be called back to work to assist in the inspection of
material to help meet EER/EL-TECH’s weekly commit-
ments.
Disposition:
llXllFirst Written Warning
lllllSecond Written Warning
lllllTermination
llXllOther: 30 day probation period (9–26
thru 10–26) any unexcused attendance will reflect in
termination.
Approved: DE Parker Date: 9/26/88
Department Manager/Plant Manager
Fletcher further testified that the last sentence on General
Counsel’s Exhibit 6 was not on the notice when she read it
and that she was not asked to sign the notice. She said
Sutliffe had been in the job 2-1/2 weeks and in her judgment
he was as qualified as she was when she left him on Friday,
September 23, except he did not have the key to the docu-
ment control where drawings were kept. Nonetheless, by Sat-
urday night everything that was to be done on the job was
completed and the work was not jeopardized because nothing
could have been shipped until Monday. Supervisor Parker
did not point out and identify and there were no more prod-
ucts found unacceptable than usual on any other night.
On Wednesday thereafter, Respondent hired a new experi-
enced inspector, Ron McCrosky. Fletcher said she met with
Supervisor Parker and Plant Manager Gerry Adams about the
written warning (G.C. Exh. 6). It was decided that there
would be two inspectors on the night shift. On Thursday, she
asked Abshire did she still need someone to fill in for her
since both Sutliffe and McCrosky would be there Friday
nights. Abshire said she was not sure, she did not see why,
but told her to ask Parker. When Fletcher asked Parker did
she still need someone to fill in for her, he said, ‘‘yes.’’
Thereupon, she asked Inspector Gene White if she would
come in and work in her stead Friday night. White said she
might, depending on whether her daughter was free. Fletcher
then asked Inspector Whelchell would he be able to work for
her if White could not. He suggested that she wait and see
what White says.
Fletcher said she told Abshire what White and Whelchell
told her. Abshire said, ‘‘Well, if they can’t, what time are
you leaving; that she [Abshire] would come back to work for
her. Fletcher told Abshire she would be leaving at 5:30 p.m.
and Abshire said ‘‘Well, okay.’’
Fletcher said she became ill Thursday night and her hus-
band suggested that she remain home Friday. To avoid a
long distance call, she asked her husband to call Parker when
he went into work. Her husband told her he called Parker at
1:30 p.m. and she did not go to the football game that
evening.
When Fletcher reported to work on Monday, October 3,
1988, she worked an hour, when Parker sent for her. When
she reported to his office, he handed her a timecard for the
previous week and told her he needed her to sign it. She
looked at the card, noted ‘‘sick pay’’ was marked for Friday,
and she signed it. General Counsel’s Exhibits 7(a) and (b)
and the record show she is correct in that regard. Supervisor
Parker then asked Fletcher did she have a doctor’s excuse for
Friday and she said, ‘‘no.’’ Parker said sit down, ‘‘I have
something for you to read’’ handing her a termination notice
(G.C. Exh. 8), which read as follows:
Employee was given written warning for leaving
work early on 9–26–88 to attend a football game with-
out notification or permission from supervisor. A meet-
ing was held with the employee, plant manager, and su-
pervisor on that date to discuss disciplinary actions.
Employee was informed that she would be placed on a
30 day probation period, that any unexcused absence
would result in termination. Also, if employee needed
to attend football games instead of work then it would
be her responsibilities to obtain coverage from another
inspector and permission from her supervisor. Asked
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee if she understood the requirements, employee
acknowledged understanding. On 9–29–88, Thursday
evening Judy asked supervisor if she needed to find
coverage on 9–30–88 to attend another football game,
the supervisor acknowledged the requirement. On Fri-
day, 9–30–88, employee’s husband called supervisor to
inform him that Judy was sick and would not be to
work. Employee returned to work without doctor’s ex-
cuse as required. Employee’s absenteeism determined to
be unexcuse and cause for termination.
ll Reprimand
ll Suspension
ll Discharge
Disposition:
llllFirst Written Warning
llllSecond Written Warning
llXllTermination
llllOther:llllllllll
llllllllll
Approved: DE Parker Date: 10–3–88
Employee’s Supervisor
Fletcher said she read the above notice and said ‘‘well.’’
Parker asked her if she wanted to talk to Gerry Adams about
it, and Fletcher said, ‘‘No, I don’t think it would do any
good.’’ Parker then said,‘‘Well you could talk to Adams
about it,’’ but she did not. She got her belongings, turned in
her tools, and left. She again stated that the notice did not
have on it that she was placed on a 30 days’ probationary
period. Fletcher also testified that no one said anything to her
about a dismissal related to her going to football games or
her work performance. Prior to September 9, she said she
had no warnings or reprimands in her file. She said the em-
ployees were always told by supervisor that anytime they
were written up, they would receive a first written notice, a
second written notice, and the third one would be a termi-
nation. She received the first such warning notice September
23, the second on October 3 was a termination. Fletcher’s
evaluation dated June 25, 1987, by Supervisor Richards indi-
cated that she had very few absences.
On Monday, April 3, 1989, Fletcher said she was called
by Virgil Clark of the Respondent for a job as a receiving
clerk, $5 an hour, 25 cents an hour, or insurance, and she
took the 25 cents.
Plant Manager Gerry Adams testified that the 30 days’
probation language was on the warning notice when Super-
visor Parker showed it to him before he discussed it with
Fletcher. He said Respondent had no record that Fletcher’s
husband called the plant to advise that Fletcher would not re-
port to work on Friday. However, General Counsel’s Exhibit
8, the termination notice signed by Supervisor Parker, states
that Fletcher’s husband called him on September 29, 1988,
and informed him that Fletcher was ill and would not be at
work on Friday, September 30, 1988. Adams stated Parker
made the decision to terminate Fletcher and he agreed with
him.
Respondent’s operations manager, Cecil Farley, testified
that he did not know about an arrangement Fletcher had
made to attend football games. On one Friday, he said
Fletcher was absent and he called in Helen Abshire to work
in her place. Abshire came in ill but performed the work.
Apparently Farley was referring to Friday, September 23.
Conclusions
The testimony of Judy Fletcher is essentially undisputed in
the record that she had an arrangement with her supervisor,
Dan Parker, that she could leave work to attend Friday after-
noon and evening high school football games, so long as she
informed someone she would be leaving and arrange for an
inspector to work in her place. If Fletcher did not in fact
have an express agreement with Parker for her to attend the
games, it is clear that neither Parker nor any other member
of management ever told Fletcher she could not leave early
to attend the games on Fridays. In fact, the evidence clearly
indicates that Parker and other supervisors acquiesced in
Fletcher’s arrangement to leave early on Fridays. Apparently
the arrangement was carried out successfully on August 26
and September 2, 1988. Thereafter, a new inspector, Sutliffe
was hired and was being trained by Inspectors Fletcher and
Abshire. The September 9 game was out of town and Inspec-
tor Gene White worked in Fletcher’s place.
Inspectors Fletcher and Abshire thought Sutliffe was suffi-
ciently trained to carry out the inspection duties independ-
ently of assistance on Friday, September 9, 1988, and Fletch-
er left early for the game. When she inquired of Supervisor
Peggy White whether Sutliffe made out all right on Friday
night, White said ‘‘yes,’’ he did well without a problem.
However, Fletcher did not have another inspector to work
with Sutliffe on Friday, September 23 since she and Inspec-
tor Abshire felt that Sutliffe had proven himself on the pre-
vious Friday, September 9. However, Fletcher learned on
Saturday, September 24, that Supervisor Cecil Farley came
into the plant the night before (September 23), and gave
Sutliffe a different job to perform for which he did not have
the paper work. Sutliffe called Abshire, who came from
home and got the paper work for him. When Fletcher re-
ported to work on Monday, September 26, Parker accused
her of leaving the job without telling any one. When Fletcher
told him she told Abshire, Parker told her, Abshire told him
she did not inform her. Fletcher brought Abshire to Parker
and Abshire told Parker, if Fletcher says she told me, she
probably did, ‘‘I was so busy I just did not remember.’’
Parker nevertheless gave Fletcher the written warning (G.C.
Exh. 6), placing her on 30 days’ probation—stating that a re-
peated infraction will result in her termination. On the fol-
lowing Wednesday, Respondent hired an experienced inspec-
tor, Ron McCrosky. Since two inspectors were on the second
shift, Fletcher asked Parker did she still need someone to fill
in for her on Fridays, and he said ‘‘yes.’’
In preparation for the next game, Friday, September 30,
Fletcher asked White and Whelchell could either of them fill
in for her on Friday. Since she did not receive an unequivo-
cal yes from either of them, Fletcher told Abshire about the
qualifying answer she received from White. Abshire said,
‘‘Well, if they can’t, I will’’ fill in for you. However, on
Thursday night Fletcher said she became ill and asked her
husband to call Parker on Friday and inform him that she
was ill and would not be at work on Friday. The record
shows that Parker acknowledged receiving Fletcher’s mes-
sage in time.
Nevertheless, when Fletcher came to work Monday, Octo-
ber 3, 1988, Supervisor Parker sent for her. When she ar-
rived he gave her her timecard and told her to sign it. Fletch-
er signed the card and Parker asked her did she have a doc-
tor’s excuse for Friday, September 30, and Fletcher said
535EL-TECH RESEARCH CORP.
‘‘no.’’ Parker then gave Fletcher the termination notice (G.C.
Exh. 8) for an unexcused absence without a doctor’s excuse.
The record shows that Respondent’s sick leave policy was
not a clear and definitive one which was uniformly followed.
Myrtle Hambrick testified that a doctor’s excuse was not re-
quired unless the employee was out 3 days. She said the pol-
icy and procedures handbook simply said a doctor’s excuse
may be required, but she always brought one.
Darlene Pennington testified without dispute that she had
been out sick for 1 day and when she returned she did not
bring a doctor’s excuse and no one asked her for one.
Donna Reed testified without dispute that she was out sick
1 day and did not bring, nor was she asked for a doctor’s
excuse. On another occasion she said she was out sick and
Hambrick did not require a doctor’s excuse. Reed further
stated that the manual provides that employees bring a doc-
tor’s excuse after use of medical leave. She had been written
up for absenteeism but was never put on probation.
Rovena Lee testified that if different employees were ab-
sent more than 3 days he or she was to bring a doctor’s ex-
cuse.
Pattie Allen was perhaps on sick leave more than any em-
ployee mentioned in the record. She testified that no one
ever told her a doctor’s excuse was required, but she always
brought one.
Mildred McKinney testified that she was out ill and she
called management and informed them that she was ill.
When she returned 2 days later, she did not bring a doctor’s
excuse. Her supervisor, Helen Abshire, did not ask her for
one. Nor was she given a warning for not having a doctor’s
excuse.
Finally, Human Resources Manager Terri Ann Hodge
Philpott testified that a doctor’s excuse was required only
when an employee had been absent more than 3 days, unless
an immediate supervisor suspects the employee is abusing
sick leave.
Since Respondent discharged Judy Fletcher for being out
sick 1 day (Friday, September 30, 1988), of which Abshire
and her supervisor, Parker, had advance notice, it is clear
that Respondent’s discharge of her was motivated by some-
thing other than her being out sick on that day. This true be-
cause if a doctor’s excuse was required at all under Respond-
ent’s vague sick leave policy, it was not required unless
Fletcher was out 3 days. After all, the essentially consistent,
corroborated, and credited testimony of the witnesses, includ-
ing some of Respondent’s management witnesses, maintained
that Respondent did not enforce a doctor’s excuse policy.
Enforcing a required doctor’s excuse against Fletcher, was a
discriminatory enforcement, since such requirement was not
made for other witness employees who had used sick leave
and did not bring a doctor’s excuse, and none of them was
required to do so.
Respondent’s notice of termination of Fletcher does not
state that she was terminated for leaving work to attend foot-
ball games because Respondent knew, had approved, or ac-
quiesced in Fletcher’s arrangement to leave early to attend
the games. Consequently, when the fact that Respondent
issued its first warning to Fletcher for leaving early on Fri-
day, September 23, and its termination notice to her for
being on leave without a doctor’s excuse September 30, it
is clear Respondent’s charge is without merit since she had
previously informed Respondent she was ill and a doctor’s
excuse was not required for 1 day’s absence. When Respond-
ent’s above-stated reason is considered in the context of the
duration of Fletcher’s employment, February 12, 1987, until
October 3, 1988, the timing of both the probation and termi-
nation notices amidst the employees’ union activities, of
which fact Respondent had knowledge, further evidenced by
the antiunion climate in the plant manifested by the Re-
spondent, the circumstances surrounding Fletcher’s termi-
nation appear to be more than suspicious.
On closer examination the record shows that Fletcher was
a quality control inspector, also certified to perform military
work. She was given the authority to reject work which did
not meet the customer’s standards, and her personnel record,
prior to September 26, 1988, was free of any warnings or
reprimands. Respondent has failed to establish, with credible
evidence, that Fletcher’s absence on September 26 created a
work backlog, which jeopardized the work schedule. In fact,
the several questionable alterations by Respondent of docu-
mentary evidence established in the record further serve to
discredit the Respondent’s testimonial account and expose
the pretextual nature of its defense. Moreover, Fletcher’s
union interest and activity, as well as Respondent’s knowl-
edge thereof, are well established under sections B and C,
supra. Thus, the precipitant issuance of a warning and swift
termination of Fletcher, a long-time and competent em-
ployee, without any prior warnings about attendance, per-
formance, or attitude, clearly substantiates the prima facie
showing that Respondent’s motive for discriminatorily termi-
nating Fletcher was her union interest and activity. Produc-
tion Stamping, 239 NLRB 1183, 1193 (1979); Howard John-
son Co., 209 NLRB 1122, 1131 (1974); Sweeney & Co. v.
NLRB, 437 F.2d 1127, 1133 (5th Cir. 1971). Under these cir-
cumstances, I further find that Respondent has failed to
present sufficient credible and probative evidence to dem-
onstrate that it would have laid off Judy Fletcher, even if she
and other employees were not engaged in protective union
activities. Consequently, Respondent’s layoff of Fletcher was
coercively discriminatory and in violation of Section 8(a)(1)
of the Act.
Pattie Allen
In evaluating the evidence relating to the layoff of Pattie
Allen, it is first noted that the evidence in every respect dem-
onstrates that not only was she a very competent worker, but
also an employee who was out on approved medical leave
a considerable number of times. Nevertheless, Allen re-
mained in Respondent’s employ off and on from October 26,
1987, to October 7, 1988, and she had never received a
warning or reprimand for work performance, attendance, or
attitude. Management knew she had a medical problem and
the record indicates that it was not deemed significant since
she had no warnings about attendance. Additionally, Allen
had received good evaluations for her work performance and
had received several wage or merit increases in pay. She was
sent to Baltimore to assist in the repair of work shipped there
that was improperly performed in the plant by another em-
ployee. Manager Shelton undisputedly had considered mak-
ing Allen a supervisor just a few weeks before she was laid
off. Aside from her performance and attendance record,
Allen was perhaps the instigator of the union activity. It was
she who called the union representative in February 1988 and
asked employees about their interest in the Union. Rovena
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lee testified that Mildred McKinney, Judy Fletcher, and Pat-
tie Allen were known union supporters because they had dis-
cussed the Union with other employees including herself. As
previously found, during a discussion with Plant Manager
Mike Shelton in September 1988, the credited testimony
shows that Shelton occasionally asked the Respondent’s
trainer, Erlene Earls, was Allen a union supporter or how did
Allen feel about the Union. Shelton also told Earls that the
union supporters were in the location where Allen worked in
the plant. When Allen and fellow employee Regina Oxley
went to Manager Shelton in January or early February to in-
quire why they were transferred to other jobs, Shelton ac-
cused Allen of stirring up trouble. Allen told him that if she
wanted to stir up trouble she could organize a union. Man-
ager Cecil Farley acknowledged he reported that conversa-
tion between Shelton and Allen in management meetings, in-
cluding meetings held in September and October 1988. The
record further shows without dispute that Allen had a con-
versation with Plant Manager Gerry Adams on October 6,
during which time she read off a list of complaints and ques-
tions. Adams wrote down Allen’s concerns and told her he
needed more data but that he would get back to her. The
next day, October 7, Allen’s supervisor, Ralph Leach, told
her to be prepared for a bad day. Later, during the same day,
she was laid off with five or six other employees. As Allen’s
layoff slip notes, she met with Manager Adams just a day
or two before her layoff, and he described her as criticizing
fellow employees, management, supervisors, and everyone
then asked for a raise. When Adams announced the layoff
October 7, while looking at Allen, he said he was getting rid
of the ‘‘troublemakers and gossipers.’’ In the contexts of Al-
len’s union activity, Adam’s use of the terms ‘‘troublemakers
and gossipers’’ could have had reference only to union activ-
ist such as Allen. Although the record has demonstrated Re-
spondent’s preference for retaining Allen in its employ prior
to October 6, 1988, in selecting employees’ for layoffs, it is
particularly noted that Respondent ignored Allen’s seniority
in laying her off October 7. Below is a list of employees and
their dates of hire (R. Exh. 9):
Name Hire Date
C. Abillar 3–4–88
J. Barlow 8–22–88
J. Bradley 11–27–87
T. Bridges 8–1–88
B. Compton 8–24–88
E. Crews 3–5–88
D. Croy 11–13–87
A. Dalton 2–15–88
J. Daniels 12–19–88
W. Davis 3–4–88
K. Francis 11–9–87
A. Green 4–26–88
E. Hale 8–29–88
B. McKenzie 8–8–88
B. McQuire 3–7–88
M. Miller 3–7–88
J. Pendleton 8–22–88
S. Stafford 3–7–88
A. Taylor 9–6–88
L. Vance 9–6–88
L. Whitlow 11–2–87
S. Woods 3–7–88
An examination of Respondent’s Exhibit 9 shows that only
5 days after Respondent laid off Allen and McKinney, it
hired L. Hazelwood and B. Woody on October 12, 1988.
The recent hiring of these two employees contradicts Re-
spondent’s contended reduction in force defense for laying
off Allen and demonstrates that such defense was advanced
as a pretextual contrivance. I therefore conclude and find
upon the foregoing evidence that the General Counsel has
made a prima facie showing sufficient to support the infer-
ence that the protected union activity of Allen was the
motiving cause for Respondent laying her off on October 7,
1988.
Under these circumstances, I further find that Respondent
has failed to present sufficient credible and probative evi-
dence to demonstrate that it would have laid off Allen, even
if she and other employees were not engaged in protective
union activities. Consequently, Respondent’s layoff of Allen
was coercively discriminatory and in violation of Section
8(a)(1) of the Act.
Mildred McKinney
As previously found, 3 days before the October 7, 1988
layoff, Supervisor Myrtle Hambrick came to Mildred McKin-
ney and asked her had heard anything about somebody in
commercial trying to put a union in. When McKinney said
no she had not, but ‘‘I would be the first damn one to sign
for it,’’ Hambrick said she had better watch what she said,
because she could get fired for such talk. McKinney said she
believed Hambrick was going to tell management so she told
Hambrick she was just kidding. On the morning of October
7, 1988, Plant Manager Adams announced there was going
to be a layoff, and it was not going to be according to se-
niority; that Respondent was going to get rid of the ‘‘trouble-
maker and gossipers.’’
After lunch, Supervisor Ken Sells came to McKinney and
told her she had 2 minutes to get her things together, and
he escorted her to the office of Supervisor Dan Parker, who
informed McKinney she was being laid off not in accordance
with seniority. Again, amidst the union activity of the em-
ployees from July to October 1988, of which fact Respond-
ent had knowledge and had created an antiunion climate in
the plant, the layoff of McKinney, like that of Fletcher, was
precipitous, and without any meaningful prior warning.
McKinney had been in Respondent’s employ since April 14,
1987, and had never received a warning about her perform-
ance, attendance, or attitude. Production Stamping, Inc.,
supra; Howard Johnson Co., supra. Moreover, it is inter-
esting in her case, as it is in Allen’s, that within 5 days after
her layoff, the Respondent hired two inexperienced workers.
Schnadig Corp., 265 NLRB 147, 161–164 (1982).
Although Respondent recalled McKinney back to work
March 29, 1989, it is clear that her abrupt layoff on October
7, 1988, was motivated by her union activity. McKinney was
one of the employees Respondent knew and suspected par-
ticipated in the union activity, because it may be reasonably
inferred from the evidence that Supervisor Hambrick re-
ported McKinney’s prounion remarks to management: that
‘‘she would be the first damn one to sign for the union.’’
Moreover, Respondent’s plant manager, Shelton, had pre-
viously forewarned the employees that anyone thinking about
537EL-TECH RESEARCH CORP.
4 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
a union would be immediately terminated. Since Respond-
ent’s discharge of McKinney was an execution of Manager
Shelton’s ultimatum, it is clear that she was coerced in the
exercise of her protective Section 7 rights by being
discriminatorily discharged for her union activity, as well as
her fellow employees’ union activity.
Since the evidence of the discharge of McKinney is incon-
sistent with Respondent’s contended defense, that the layoff
was a reduction in force due to poor production and financial
straights, the General Counsel has made a prima facie show-
ing sufficient to support the inference that the Respondent’s
layoff of McKinney was motivated by her union activity.
Moreover, it is further found that Respondent has failed to
present sufficient credible and probative evidence which
demonstrates that it would have laid off Fletcher, Allen, or
McKinney even if they and other employees were not en-
gaged in protective union activities. Having failed to estab-
lish such proof, Respondent’s discharge or layoff of them
was also coercively discriminatory and in violation of Sec-
tion 8(a)(1) of the Act. Wright Line, supra.
IV. REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I will recommend that it be ordered to
cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1) of
the Act by creating the impression among its employees that
their union activities were under surveillance; by referring to
employees engaged in union activities as union organizers,
troublemakers, rumor starters, gossipers, or hellraisers; by
threatening employees with plant closure because of their
union interest or activities; by telling an employee she was
not selected for a supervisory position because of her union
activities; by threatening to discharge employees because of
their union activities; by telling employees they are hated by
other employees because of their union activities; and further
coercing and restraining employees by discriminatorily dis-
charging or laying them off, and refusing to recall them, be-
cause of their union activities, I will recommend that Re-
spondent cease and desist from engaging in such coercive
and discriminatory conduct; and that it make Judy Fletcher,
Pattie Allen, and Mildred McKinney whole for any loss of
earnings they may have suffered within the meaning and in
accord with the Board’s Decision in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977),4 except as specifically modified by the wording
of such recommended Order.
Because of the character of the unfair labor practices
found the recommended Order will provide that Respondent
cease and desist from or in any like or related manner inter-
fering with, restraining, or coercing employees in the exer-
cise of their rights guaranteed by Section 7 of the Act. NLRB
v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
On the basis of the above findings of fact and on the en-
tire record in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent, El-Tech Research Corporation is, and at all
times material, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, United Mine Workers of America is, and
has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
3. By creating the impression among employees that their
union activities were under surveillance, Respondent has co-
erced and restrained employees, in violation of Section
8(a)(1) of the Act.
4. By referring to employees engaged in union activities
as troublemakers, union organizer, rumor starters, gossipers,
and hellraisers, Respondent has coerced and restrained em-
ployees, in violation of Section 8(a)(1) of the Act.
5. By threatening employees with plant closure and plant
movement because of employees’ interest in, or activities on
behalf of the Union, Respondent has coerced and restrained
employees, in violation of Section 8(a)(1) of the Act.
6. By informing employees they were not considered for
supervisory positions because of their union activities, Re-
spondent has coerced and restrained employees, in violation
of Section 8(a)(1) of the Act.
7. By threatening to discharge employees because of their
union interest and activities, Respondent has violated Section
8(a)(1) of the Act.
8. By informing employees they are hated by other em-
ployees because of their union activities, Respondent has co-
erced and restrained employees, in violation of Section
8(a)(1) of the Act.
9. By discriminatorily discharging employees and laying
off other employees because of their union activities, Re-
spondent has coerced and restrained employees, in violation
of Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, El-Tech Research Corporation, Princeton,
West Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Creating the impression among employees that their
union activities are under surveillance.
(b) Referring to employees engaged in union activities
(union organizers) as troublemakers, rumor starters, gos-
sipers, and hellraisers.
(c) Threatening employees with closure or movement of
the plant because of their union activities.
(d) Informing employees they are not considered for super-
visory positions because of their union activities.
(e) Threatening employees with discharge because of their
union activities.
(f) Informing employees they are hated by other employ-
ees because of their union activities.
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(g) Discriminating against employees by discharging or
laying them off, and refusing to recall them immediately be-
cause of their union activities.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees of Respondent in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Judy Fletcher, Pattie Allen, and Mildred McKin-
ney whole for any loss of earnings suffered by them as a re-
sult of the discrimination practiced against them from the
date of their discharge or layoff to the date that they were
or will be reinstated to their jobs, with interest, in the manner
described above in the section entitled ‘‘The Remedy.’’
(b) Post at Respondent’s plant located at Princeton, West
Virginia, copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Regional Di-
rector for Region 11, after being duly signed by an author-
ized representative of Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Acting or Regional Director in writing with-
in 20 days from the date of this Order what steps the Re-
spondent has taken to comply.