Excel Corp.

National Labor Relations Board - Board Decisions

Sep 22, 1997

324 N.L.R.B. 416 (N.L.R.B. 1997)

416
324 NLRB No. 76
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent and the Charging Party each have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the
findings.
2 We note that no exceptions were filed to the judge’s dismissal
of the allegation that the Respondent unlawfully interrogated em-
ployees Heuman and Young by asking them why they were wearing
union insignia.
In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(1) of the Act by interrogating employee Nicholson, Chair-
man Gould finds it unnecessary to rely on Rossmore House, 269
NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
1 All dates refer to 1996 unless otherwise stated.
Excel Corporation and United Food and Commer-
cial Workers International Union, Local 576,
AFL–CIO. Cases 17–CA–18638 and 17–CA–
18694–1
September 22, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On March 3, 1997, Administrative Law Judge Al-
bert A. Metz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
Charging Party filed an answering brief, and the Re-
spondent filed a brief in opposition to the answering
brief. The Charging Party also filed cross-exceptions
and a supporting brief, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Excel Corporation, Mar-
shall, Missouri, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Mary G. Taves, Esq., for the General Counsel.
Robert D. Overman, Esq., for the Respondent.
Robert J. Henry, Esq. for the Union.
DECISION
ALBERT A. METZ, Administrative Law Judge. This case
was heard at Marshall, Missouri, on November 18–20,
1996.1 The United Food and Commercial Workers Inter-
national Union, Local 576, AFL–CIO, CLC (Union) has
charged that Excel Corporation (the Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act).
The Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
I. BACKGROUND
The Respondent operates a pork processing plant in Mar-
shall, Missouri. Starting in early 1996 the Charging Party
Union and the Laborers Union began organizing campaigns
at this facility. At the time of the hearing the plant remained
nonunion.
II. UNFAIR LABOR PRATICE ALLEGATIONS
A. Supervisor Glen Moore
Respondent’s employee, David Davis, worked next to em-
ployee Mike Helveston. Davis recounted how in March Su-
pervisor Glenn Moore approached Helveston on the produc-
tion line. Moore noticed that Helveston was wearing a La-
borer’s union insignia on his hard hat and commented that
he liked the sticker. Helveston responded, ‘‘Oh, you like
that.’’ Moore retorted, ‘‘Yeah, I can’t wait to make your life
miserable.’’ Helveston said, ‘‘Yeah, that can work two
ways.’’ Moore replied, ‘‘Yeah, but you’ll lose.’’
Moore admitted mentioning the union sticker to Helveston
but denied saying anything threatening concerning its dis-
play. Moore, who testified that he had seen the downside of
unions, said he told Helveston that unions made a lot of peo-
ples’ lives miserable. Helveston, who is no longer employed
by the Respondent, did not testify.
Davis was a credible witness who gave a detailed account
of the incident. Davis is still employed by the Respondent
and this is a consideration when assessing his credibility.
Flexsteel Industries, 316 NLRB 745 (1995); Stanford Realty
Associates, 306 NLRB 1061, 1064 (1992). Moore was less
persuasive in his denial. Comparing the testimony and the
demeanor of the two witnesses I credit Davis’ version of the
encounter. I find that the Respondent violated Section 8(a)(1)
of the Act by threatening Helveston with unspecified repris-
als for wearing the union sticker.
B. Supervisor Fangman’s March 14 Encounter with
Employee Damon
In early March the Respondent moved its belly derind de-
partment to a new location. The new area is referred to as
Bay 8 and approximately 15 employees worked in the de-
partment in March. The move caused problems as far as the
workers were concerned. They complained that large over-
head fans caused excessive noise and blew cold air on them.
They also objected to the setup of the line because they per-
ceived some workers had to work dangerously close to each
other. There were complaints involving the need to use hand
knives because power equipment had not been setup. These
and other complaints were voiced to supervision but did not
result in solutions that satisfied the employees.
On March 13 the Bay 8 employees had a meeting in the
plant conference room with their immediate supervisors,
James ‘‘J.T.’’ Terry and Leroy Gerkin. The employees
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417EXCEL CORP.
voiced their complaints about working conditions. The super-
visors told the employees they were aware of the problems
and were working to correct them as quickly as possible.
At lunchtime on March 14 the Bay 8 employees were still
dissatisfied over the lack of improvement in their working
conditions. The group decided not to return to work until
they could talk to higher management about the situation.
Supervisor Terry soon found the Bay 8 employees not work-
ing. After some discussion a meeting was arranged in the
conference room with plant operations Manager, Doug
Fangman. In attendance were all of the Bay 8 employees,
and Supervisors Fangman, Terry, and Gerkin. The employees
were boisterous at the start of the meeting and Fangman de-
manded order. Particularly agitated were employees Jeff
Griggs and Fred Damon. The employees voiced their con-
cerns to Fangman. He told the employees that the changes
they wanted could not be done overnight and the Respondent
was doing its best to make the required corrections. Fangman
told the employees that the Respondent did not condone their
method of obtaining the meeting. Fangman finally concluded
the meeting and told the employees to return to work.
Damon was an active union supporter and wore union
stickers on his hard hat. He testified that as he was leaving
the conference room, Fangman grabbed his arm and pulled
him close to Fangman’s face. Damon recalled that Fangman
angrily said not to fuck with him, that he knew Damon was
the leader, and he was not going to allow Damon to organize
the group. Fangman added that before he would let that hap-
pen he would fire every damn one of them. He then released
Damon who left the room. As Damon walked away Super-
visor Gerkin came up to him, put his arm around him and
assured him that everything was going to be okay.
Employee Howard Duckworth testified that he was one of
the last to leave the conference room. He observed Fangman
grab Damon and pull him toward him. Duckworth could see
that Fangman was angry and heard him tell Damon, ‘‘You
need to stop getting these people all wound up.’’ He then
pushed Damon away.
Fangman admitted that he did stop Damon as he left the
meeting. Fangman testified that he only wanted to see if
Damon was all right as he appeared upset in the meeting and
he did not want him to return to work in an agitated state.
Fangman testified that he told Damon they had discussed
‘‘our issues, let’s settle down and go back to work.’’
Fangman denied that he grabbed Damon, threatened him, or
mentioned the employees’ organizational activities.
Damon and Duckworth were credible witnesses whose de-
meanors were convincing. Fangman did not present a persua-
sive demeanor when he denied threatening Damon. As found
below, Fangman was clearly angered by the employees’
work stoppage and subsequently had another hostile encoun-
ter with Damon. I find that Fangman’s conduct of grabbing
Damon and threatening the employees with discharge for en-
gaging in union or other protected concerted activities is a
violation of Section 8(a)(1) of the Act.
C. Fangman’s March 15 Meeting With Bay 8
Employees
The following day, March 15, the Bay 8 employees were
told to attend another conference room meeting. All of the
department employees were present along with Supervisors
Fangman, Terry, and Gerkin. Several employees testified to
what occurred at the meeting. In sum, Fangman opened the
meeting by telling them that he had thought over their ac-
tions of refusing to go to work on the previous day. He stat-
ed the more he thought about it the madder he got and that
he was not going to tolerate their actions. He then gave each
of them a disciplinary form that read:
I was explained the proper method of requesting a
meeting.
I have been informed that not returning to my work
station on time after break is in direct violation of com-
pany rules.
I realize that future occurrences of the incident of
3/14/96 will result in severe disciplinary action up to
discharge.
The employees were told to sign the disciplinary forms.
One employee asked what would happen if they refused to
sign. Fangman replied that they would sign the forms or be
terminated. He said he could replace every one of them.
Each employee was required to sign the form and it was
placed in their personnel file.
Fangman conceded the Bay 8 employees were required to
sign the form. He remembered saying something about ‘‘the
more he thought about the matter,’’ but denied that he was
angry. He testified that he did not believe he said he would
fire the employees. Although Supervisor Terry was called to
testify by the Respondent he was not asked about this meet-
ing. Supervisor Gerkin did not testify at the hearing.
The employees’ testimony showed that they were strongly
impressed by this significant event in their working lives and
that they had clear recollections of what occurred. Fangman
in contrast was not believable in his denial that he was angry
or in his recitation of what he said to the employees. I also
draw an adverse inference from the fact that Supervisor
Terry was not questioned about the meeting and that Super-
visor Gerkin was not called to testify about the event. I con-
clude that had they testified concerning this meeting their
testimony would have been contrary to Fangman’s version of
events. International Automated Machines, 285 NLRB 1122–
1123 (1987). Considering the demeanor of the witnesses and
the weight of the evidence I credit the employees’ version
of what occurred at this meeting.
It is well established that employees are free to engage in
protected work stoppages concerning their working condi-
tions. Washington Aluminum, 370 U.S. 9 (1962). I find that
the Bay 8 employees were engaged in such protected con-
certed activity when they stopped work in protest of their
employment conditions. The employees were given the warn-
ing forms in retribution of their protected activity. Addition-
ally, Fangman’s remarks to Damon about his union activities
the previous day is evidence that the disciplinary forms were
issued, at least in part, because of the employees’ union ac-
tivities. I find that the Respondent violated Section 8(a)(1)
and (3) of the Act by giving the written warnings to the Bay
8 employees. Astro Tool & Die Corp., 320 NLRB 1157 fn.
1 (1996). I further find that the Respondent violated Section
8(a)(1) of the Act by threatening the employees with dis-
charge if they did not sign the disciplinary forms or if they
engaged in future protected acts.
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418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D. Fangman’s Second Encounter With Damon
A couple of days after the March 15 meeting Damon was
in the plant cafeteria reading some union papers he had
found on a table. Fangman approached and asked him if the
papers were ‘‘some of your shit.’’ Damon replied that they
were not his and he was just reading the material. Fangman
said he ‘‘would take care of this shit.’’ He then took a stack
of union material from the table, walked to the trash can and
threw the material away. Fangman returned to where Damon
was sitting and holding union papers in his hand. Fangman
said he would ‘‘take care of that shit, too,’’ and grabbed the
papers from Damon’s hand. Fangman again walked to the
trash receptacle and threw away the papers. Damon imme-
diately got up and left the cafeteria.
Fangman denied that he had ever said anything to Damon
about union handouts or had snatched such materials from
him. Fangman admitted that on occasion he had thrown away
union materials that he saw on unoccupied cafeteria tables.
Fangman’s demeanor and his denial that this encounter
had occurred were not credible. Damon, in contrast, pre-
sented a very believable demeanor and a detailed account of
what had happened. It was apparent that he was shaken by
being accosted in such manner by the second highest ranking
supervisor in the plant. I credit Damon’s account of events.
I find that Fangman’s actions in coercively interrogating
Damon about the union materials and taking such papers
from him are violations of Section 8(a)(1) of the Act.
E. Interrogations by Supervisor Bret Getzel
Supervisor Bret Getzel testified that he knew employees
Sherry Heuman and her husband, Wayne. Getzel had been
told by Wayne on several occasions that he was dissatisfied
with his treatment by the Union. In mid-April Getzel noticed
that Sherry Heuman was wearing a union sticker and asked
her why she was wearing the insignia. Employee Sue Nichol-
son related that Getzel also approached her in April while
she was working. Nicholson was an open union supporter.
Getzel asked Nicholson what the difference was between the
UFCW and the Laborers. She explained her understanding of
the differences. Getzel then asked her how many cards the
UFCW had signed. Nicholson replied she did not know.
Nicholson recalled that on another occasion at around quit-
ting time Getzel asked her why she was wearing a union T-
shirt. She told him because she believed ‘‘in him.’’ Em-
ployee Bryan Young testified that Getzel also asked him in
approximately July why he was wearing a union T-shirt.
Getzel stated that, ‘‘I have no experience with the union
prior to this point [the union organizational campaign] and
so I wasn’t well-versed and well-schooled in what was . . .
allowed under . . . labor laws.’’ Getzel denied that he had
any conversation with Nicholson about the UFCW or Labor-
er’s Union or questioned Young about his union T-shirt.
Getzel did admit to asking Heuman about her union sticker.
He did so out of curiosity because of her husband’s prior
antiunion expressions.
Interrogation of an open and active union supporter vio-
lates Section 8(a)(1) of the Act when, under all the cir-
cumstances, the interrogation reasonably tends to restrain, co-
erce, or interfere with employees’ rights guaranteed by the
Act. Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel Restaurant Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). In applying this test the Board ex-
amines the background, the nature of the information sought,
the identity of the questioner, and the place and method of
the interrogation. Considering the demeanor of the witnesses
and the weight of the evidence, I find that Getzel did engage
in the interrogations attributed to him by Heuman, Young,
and Nicholson. The interrogations were directed at employ-
ees who were visible union supporters. Getzel was a first line
supervisor at the time of the interrogations. His inquiries
took place in relative open areas, were unaccompanied by
threats or promises of benefit, and were very short in dura-
tion. I find Getzel’s general inquiries to Heuman and Young
as to why they were wearing union insignia were not, under
all the circumstances, violative of the Act. More troubling is
the interrogation of Nicholson which included the inquiry as
to how many union authorization cards the Union had re-
ceived. This inquiry goes to the union activities of other em-
ployees and the general progress of the organizing campaign.
Moreover, when viewed against the background of other su-
pervisors’ unlawful conduct described above, this interroga-
tion is more coercive. I find that, under all the circumstances,
the interrogation of Nicholson about the employees’ card
signing is a violation of Section 8(a)(1) of the Act. Cum-
berland Farms, 307 NLRB 1479–1480 (1992)
F. Plant Manager Lincoln Woods— Handouts to
Employees
The complaint alleges that Lincoln Woods, Respondent’s
Plant Manager, threatened employees with loss of benefits
and told them that it would be futile to select the Union as
their collective bargaining representative. Two exhibits were
introduced in support of these allegations. (G.C. Exhs. 5 and
6.) These exhibits are copies of Respondent’s antiunion prop-
aganda issued in the plant on March 1 and July 23. Respond-
ent asserts that the documents were in response to Union
propaganda and are protected speech under Section 8(c) of
the Act.
The March 1 handout discusses the Marshall plant em-
ployees’ higher wages when compared to Respondent’s other
pork plants. The memo states in pertinent part:
If the Union is telling your [sic] that if they were in,
you would be making wages other than what you are
now making, they are simply wrong! If they rep-
resented you, the law allows them to negotiate for you.
That is all! Wages and benefits can be negotiated
downward.
The handout also discusses ESOP/401(K) retirement
matching funds paid by the Respondent to employees and
overtime and holiday week benefits. As to both benefits the
document states:
We do not intend to negotiate this benefit for any Excel
unionized facility in the future.
. . . .
If the Union is telling you wages and benefits can only
go up, they are not giving you all the facts. The law
allows the company to negotiate wages and benefits
down. Do not take a chance on your wages and bene-
fits.
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419EXCEL CORP.
The July 23 handout disputes union propaganda regarding
various benefits. A similar theme found in the March memo
is repeated:
No Excel unionized facility has this benefit
(ESOP/401(K)) and we do not intend to negotiate this
benefit for any Excel unionized facility in the future.
Are you willing to go on STRIKE if the company in-
sisted during negotiations that this benefit be elimi-
nated?
The Respondent’s theme in these documents is the futility
of collective bargaining. The two papers declare, without res-
ervation, that the Respondent does not intend to negotiate
certain benefits at union represented plants. The March paper
cautions that the employees should not take a chance as to
their wages and benefits. The July paper rhetorically asks if
employees would be willing to strike if the Respondent in-
sisted on not bargaining about such benefits. Considering the
message as a whole, I find that the Respondent did violate
Section 8(a)(1) of the Act by implying that collective bar-
gaining is futile and telling employees that it would not ne-
gotiate about certain benefits if the Union represented them.
G. Events Involving Sue Nicholson
1. Alleged harassment by Supervisor Getzel
Employee Sue Nicholson was a leader of the Union’s or-
ganizing efforts at the plant. She held union meetings at her
home, attended union meetings, distributed handbills, got au-
thorization cards signed, and wore union insignia. In the first
half of 1996 Nicholson worked as a shoulder separation saw
operator. Her supervisor was Bret Getzel. She had a precar-
ious relationship with Getzel which she described as worsen-
ing when she started openly supporting the Union’s organiz-
ing campaign. As examples of the deteriorating relationship
she cited Getzel constantly criticizing her work and turning
a water spray on her saw blade that splattered her when she
worked.
Getzel described Nicholson’s work at the first part of the
year as generally above standard but at times it would slip.
To correct lapses in Nicholson’s performance, Getzel would
coach her on the proper way of doing the work. Getzel also
enlisted the help of another employee, Glen Parks, to train
Nicholson. Parks worked with Nicholson two or three times
to improve her performance. Nicholson was twice counseled
because her production was below 70 per cent of what was
expected. Getzel denied that he harassed Nicholson about her
performance after she started openly displaying her support
for the Union. Nicholson did not dispute Getzel’s testimony
that her production was at time substandard. Employee Mike
Lefevers also had his problems with Getzel. Lefevers can-
didly admitted that Getzel did not let anyone perform poorly
without attempting to correct the situation. Lefevers worked
directly across from Nicholson and did not observe Getzel
engaging in behavior that he thought was harassing of Nich-
olson.
Nicholson described how a water device was placed on her
saw near the end of February. The water was not activated
until approximately the end of March. Nicholson testified
that the water was designed to spray off the bone meal, par-
ticles of fat and meat that were built up in the saw. She ob-
jected to the water because it would splatter on her. Nichol-
son said that when others operated her saw she did not be-
lieve the water was turned on the machine. Nicholson com-
plained to plant manager, Lincoln Woods, about the matter
in early April and stated he told her there should not be
water on the saw. Nicholson said this was one of the subjects
discussed in a subsequent departmental meeting with Woods.
The water, however, was not turned off on the machine.
Getzel denied that Lincoln Woods had ever told him that
water should not be used on the saw.
The water had been used on Nicholson’s machine when
the plant was operated by a predecessor company. At some
point the line was changed and the water was not on the saw
for a period of time. When Getzel began supervising the op-
eration he was unaware that water had been on the saw. He
later took a training trip to Respondent’s Beardstown, Illinois
plant and observed water being used on a similar saw. He
liked the fact that the 180 degree hot water dribbling on the
saw removed the fat build-up and allowed for a more precise
cut on the meat. After Getzel returned from his training he
had water installed on Nicholson’s saw. Getzel testified that
all operators of that saw were required to keep the water on
to improve the cuts. He conceded that it was an almost daily
routine that he made sure the water was operating. Nicholson
ceased working in Getzel’s department on June 19. The
water has consistently been used on the saw since that time.
While Nicholson was upset by the use of the water, the
Respondent’s evidence convincingly showed that the device
was not used as a means to harass her. The predecessor em-
ployer had used water on the saw. The uncontroverted evi-
dence showed that the Respondent’s sister plant uses a simi-
lar device. The water is still being used on the machine de-
spite the fact that Nicholson has not worked on that saw for
many months. Likewise, Getzel’s coaching and comments as
to Nicholson’s works were not shown to have resulted be-
cause of her union activity. It is uncontroverted that Nichol-
son at times fell below production standards. Her counseling
included help from other employees. Lefevers who worked
across from her did not notice any heightened supervision of
Nicholson’s work. On the basis of the record as a whole I
find that the Government has failed to prove by a preponder-
ance of the evidence that Nicholson was harassed because of
her union activities. Wright Line, 251 NLRB 1083 (1980).
2. Nicholson’s June 19 suspension
Sue Nicholson did not like working under Getzel’s super-
vision. As a result she bid on a job as a loin trimmer in a
different department. In early June she was allowed to work
a few hours a week at that job. On June 18 she was told
that the company nurse would have to clear up a workmen’s
compensation restriction in her record before she could work
permanently in the loin trimmer job. Nicholson had suffered
an on the job injury while working for a predecessor com-
pany at the plant.
On the morning of June 19 Nicholson reported to the loin
trimmer job. She was told by Supervisor Sassman that she
needed to go to her old job as the nurse needed to clear up
her medical restrictions concerning her new job. This con-
versation was very early in the morning and the nurse had
not arrived at work as of that time. Nicholson admittedly was
very agitated by this turn of events and sought out higher su-
pervision to determine why she was not allowed to work the
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420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
new job. Nicholson found Richard Kidd, superintendent of
the cut floor, and discussed the matter with him. Kidd prom-
ised her he would talk to the nurse as soon as she arrived
at work. In the meantime Nicholson was told to return to her
former job under Getzel. Kidd then spoke with Getzel and
told him he was concerned about Nicholson who was visibly
distraught. Kidd told Getzel to keep an eye on her to insure
she was working safely around her electric saw.
Nicholson returned to her former shoulder saw station and
commenced work. Bryan Young, an employee working near-
by, saw that Nicholson was troubled and told her to, ‘‘Cheer
up.’’ Nicholson yelled, ‘‘Fuck you.’’ Nicholson admitted, ‘‘I
was upset, to say the least.’’ Getzel observed Nicholson
shouting at Young and, although he could not hear what she
said, he could tell she was anguished. Getzel testified he
could see her face was flushed and it appeared that she had
been crying. He determined that he had to defuse the situa-
tion so he went to Nicholson’s work station. He tapped Nich-
olson on the shoulder to gain her attention as the plant is
noisy and the employees wear ear protection. Getzel told her
she was doing a good job, to relax and have a good day.
Nicholson shouted at him to get away from her. He told her
to relax and she again shouted to get away. Nicholson then
threw a slab of meat off the line which grazed Getzel in the
thigh and fell to the floor. The meat did not injure Getzel.
The slabs of meat that Nicholson worked on weigh approxi-
mately 16 to 22 pounds.
Nicholson’s subsequent written statement of the encounter
relates that: ‘‘At no time was I ever going to do physical
harm to him (Getzel) even though my dislike for the man is
terribly strong.’’ (G.C. Exh. 17(b).) Nicholson testified that
she was trying to throw the meat behind her into a barrel
used for that purpose. The meat she threw, however, landed
on the floor and was thus considered contaminated. After the
meat fell to the floor Nicholson stepped away from the saw.
Getzel had to take over her job as the meat coming down
the line was accumulating at her station. Getzel yelled across
the line at employee Mike Lefevers to get someone to take
over the saw work. Lefevers observed that Nicholson had an-
grily flung meat behind her towards Getzel. He also noted
that she was crying and that she walked away from the line.
Nicholson went to her husband’s work station and told him
she was feeling ill. She then went to nurse’s office.
Later in the morning Nicholson’s work restrictions were
clarified when the nurse reviewed her medical record. Nich-
olson was then allowed to start work on her new job as a
loin trimmer. In the meantime higher management had been
informed of the confrontation between Getzel and Nicholson
and an investigation was begun. Nicholson, Lefevers and
Getzel were called to the office and gave written statements
of the event. After this preliminary investigation, Nicholson
was indefinitely suspended pending further consideration of
the matter. Nicholson recalled she was told she was being
suspended ‘‘for use of profanity on the line and [for] . . .
being belligerent.’’ The initial notations on Nicholson’s dis-
ciplinary record state that her violation concerned: ‘‘General
policy & rules—Use of profanity, leaving the line w/o re-
lief.’’ A notation was later added that states: ‘‘Violation of
safety rules.’’
Getzel recommended to Human Resources Manager, Joan
Kelly, that Nicholson be discharged. Kelly rejected that sug-
gestion and decided that a written warning and five day sus-
pension were appropriate discipline. Nicholson was informed
of the suspension and her personnel action record was
amended with the notation: ‘‘Altered to a five-day suspen-
sion for violation of safety policy. Any future violation of
company policy will result in disciplinary action up to and
including discharge.’’ Nicholson signed the disciplinary
record and began the five day suspension. She returned to
work after the suspension period and, at the time of the hear-
ing, continued to work as a loin trimmer.
The record establishes that employees regularly use pro-
fanity on the plant floor while working. The evidence was
mixed as to the disciplinary treatment of employees who
used profanity in angry situations or violated safety rules.
The record does, however, show that profanity and safety
violations had been disciplined in certain situations, including
incidents which resulted in the discharge of employees.
3. Analysis of Nicholson’s suspension
The General Counsel has the initial burden of establishing
that union activity was a motivating factor in Respondent’s
action alleged to constitute discrimination in violation of
Section 8(a)(3). The elements commonly required to support
a showing of discriminatory motivation are union activity,
employer knowledge, timing, and employer animus. Once
such unlawful motivation is shown, the burden of persuasion
shifts to the Respondent to prove its affirmative defense that
the alleged discriminatory conduct would have taken place
even in the absence of the protected activity. Wright Line,
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);
Manno Electric, 321 NLRB 278 (1996). The test applies re-
gardless of whether the case involves pretextual reasons or
dual motivation. Frank Black Mechanical Services, 271
NLRB 1302 fn. 2 (1984). ‘‘A finding of pretext necessarily
means that the reasons advanced by the employer either did
not exist or were not in fact relied upon, thereby leaving in-
tact the inference of wrongful motive established by the Gen-
eral Counsel.’’ Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. sub nom. 705 F.2d 799 (6th Cir. 1982).
Nicholson’s union activities were very public and included
wearing union insignia, handbilling at the plant, and being
questioned by Getzel about her union activities. The timing
of her suspension was in the midst of an ongoing union orga-
nizational campaign. The violations of Section 8(a)(1) and
(3) of the Act discussed above are evidence of the Respond-
ent’s animus concerning the Union. Thus, I find that the
Government has established a foundational showing that part
of the motivation for Nicholson’s suspension was her union
activities.
The record, however, shows that Nicholson was not pur-
posely provoked by the Respondent on the morning of June
19. The medical staff’s concern for clarifying Nicholson’s
physical restrictions was shown to be legitimate. The phys-
ical limitations were promptly reviewed when the nurse ar-
rived at work and Nicholson was approved for permanent
duty in her new job. Nicholson’s anger on the morning of
June 19 was based on her perception that it was unjust that
she should temporarily resume duties under Getzel’s super-
vision. Nicholson’s frustration, which resulted in her angry
encounter with Getzel, was of her own making. Nicholson’s
discipline has not been shown to be extraordinary in light of
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421EXCEL CORP.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommend Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
her agitated profanity toward Young and her emotional reac-
tion of pushing meat at Getzel. The Respondent’s response
to Nicholson’s conduct was sufficiently proven to have been
action that would have occurred regardless of her protected
concerted activities. I find that the Respondent did not vio-
late the Act by suspending Nicholson. Wright Line, supra.
CONCLUSIONS OF LAW
1. Excel Corporation is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The United Food and Commercial Workers International
Union, Local 576, AFL–CIO, CLC is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following conduct:
(a) Threatening employees with unspecified reprisals for
wearing union insignia.
(b) Physically accosting an employee and threatening em-
ployees with discharge for engaging in union or other pro-
tected concerted activity.
(c) Threatening employees with discharge if they did not
sign unlawful disciplinary forms.
(d) Coercively interrogating an employee concerning union
materials and physically taking such materials from the em-
ployee.
(e) Telling employees that collective bargaining is futile
and that it would not negotiate certain benefits if the Union
represented them.
(f) Interrogating an employee as to how many union au-
thorization cards the Union had received.
4. Respondent violated Section 8(a) (1) and (3) of the Act
by giving employees disciplinary forms because they had en-
gaged in union or other protected concerted activity.
5. The foregoing unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act except as herein
specified.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent shall be
required to remove from its files the disciplinary notices the
Bay 8 employees were required to sign on or about March
15, 1996. The Respondent is further required to notify the
Bay 8 employees in writing of the removal of the discipli-
nary notices and that such warnings will not be used against
them in any manner.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Excel Corporation, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals for
wearing union insignia.
(b) Physically accosting an employee and threatening em-
ployees with discharge for engaging in union or other pro-
tected concerted activity.
(c) Threatening employees with discharge if they do not
sign unlawful disciplinary forms.
(d) Coercively interrogating an employee concerning union
materials and taking such materials from the employee.
(e) Telling employees that collective bargaining is futile
and that it would not negotiate certain benefits if the Union
represented them.
(f) Interrogating an employee as to how many union au-
thorization cards the Union had received.
(g) Giving employees disciplinary forms because they had
engaged in union or other protected concerted activity.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove
from its files the disciplinary notices the Bay 8 employees
were required to sign on or about March 15, 1996. Within
3 days thereafter the Respondent shall notify these employ-
ees in writing that this has been done and that the warnings
will not be used against them in any way.
(b) Within 14 days after service by the Region, post at its
facility in Marshall, Missouri, copies of the attached notice
marked ‘‘Appendix.’’3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 17, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since May 15, 1996.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
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422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights:
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten our employees with unspecified re-
prisals for wearing union insignia of the United Food and
Commercial Workers International Union, Local 576, AFL–
CIO, CLC or any other union
WE WILL NOT physically accost employees or threaten
them with discharge for engaging in union or other protected
concerted activity.
WE WILL NOT threaten employees with discharge if they
do not sign unlawful disciplinary forms
WE WILL NOT interrogate our employees concerning union
materials nor will we take such materials from them
WE WILL NOT tell our employees that collective bargaining
is futile and that we would not bargain about certain benefits
if a union represents them.
WE WILL NOT interrogate our employees as to how many
authorization cards a union has received from our employees.
WE WILL NOT give our employees disciplinary forms be-
cause they have engaged in union or other protected con-
certed activity
WE WILL NOT in any like or related manner interfere with,
restrain or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
written disciplinary warnings that Bay 8 employees were re-
quired to sign on or about March 15, 1996, and WE WILL,
within 3 days thereafter, notify each Bay 8 employee in writ-
ing that this has been done and that the warnings will not
be used against them in any way.
EXCEL CORPORATION
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