Farwest Fibers, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 2000

331 N.L.R.B. 950 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 950
Far West Fibers, Inc. d/b/a E-Z Recycling and Asso-
ciation of Western Pulp and Paper Workers, a/w
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO. Cases 36–CA–8233 and
36–CA–8271
August 7, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
On June 7, 1999, Administrative Law Judge James M.
Kennedy issued the attached bench decision.1 The Re-
spondent filed exceptions and a supporting brief.
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 brief and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.2
1. The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act when it issued a warning
and 1-day suspension to employee Krista Henson on
June 16, 1998,3 because of her union activities. For the
following reasons, we disagree with the judge’s findings.

1 The procedures for issuing bench decisions are set forth in Secs.
102.35(a)(10) and 102.45 of the Board’s Rules and Regulations (the
Board’s Rules). Sec. 102.35(a)(10) requires that a judge issue a bench
decision within 72 hours after the conclusion of the oral argument.
Further, Sec. 102.45 requires, inter alia, that if a judge delivers a bench
decision, the judge shall, “promptly upon receiving the transcript,” cer-
tify the accuracy of the transcript pages and file with the Board a certi-
fied copy of those pages together with any supplementary matter the
judge may deem necessary to complete the decision. The purpose of
these rules is to expedite the issuance of unfair labor practice cases suit-
able for bench decisions. See 59 Fed.Reg. 65942–65943 (1994).
Here, the hearing was held on April 6, 1999; the oral argument was
held (by telephone conference) on May 3, 1999; the bench decision was
rendered (also by telephone conference) on May 19, 1999; the tran-
script of the bench decision was received in the Office of the Division
of Judges on June 1, 1999; and the certification was issued on June 7,
1999. Thus, the bench decision was not issued within 72 hours after
conclusion of the oral argument, as required by Sec. 102.35(a)(10). In
addition, the certification was not issued “promptly” after receipt of the
transcript, as required by Sec. 102.45. Furthermore, although not
strictly proscribed by the Board’s Rules, the procedure utilized here
was inefficient in that it resulted in the parties and the court reporters
being called back twice, once for the oral argument and again for the
bench decision.
2 We shall modify the judge’s recommended Order, as set forth in
full below, and issue a new notice to conform to the violations found
herein and in accordance with our decision in Indian Hills Care Center,
321 NLRB 144 (1996). We shall also substitute in the new notice the
term “surveillance” for the term “spy.” See Centeno Super Markets,
220 NLRB 1151 fn. 5 (1975), enfd. 555 F.2d 442 (5th Cir. 1977), cert.
denied 434 U.S. 1064 (1978).
Further, we find that the judge’s recommendation of a broad order
requiring the Respondent to cease and desist from violating the Act “in
any other manner” is not warranted in this case. The Respondent has
not engaged in such egregious misconduct as to demonstrate a general
disregard for the employees’ statutory rights. Accordingly, we shall
substitute a narrow order requiring the Respondent to cease and desist
from violating the Act “in any like or related manner.” Hickmott Foods,
242 NLRB 1357 (1979).
On June 16 Supervisor and Plant Manager Keith Ris-
tau issued a written warning and suspension to Henson
for being rude to a customer on the telephone. In issuing
the discipline, the Respondent explained to Henson that
she was receiving the reprimand because this was her
second warning about poor customer service and that the
Respondent considered her April 1 appraisal to be a first
warning. That appraisal stated, inter alia, that Henson
could be short or abrupt with customers and that she
needed to improve her customer relations.
In finding the violation, the judge found fault with the
Respondent’s reliance on Henson’s appraisal as a first
warning. The judge observed that calling an appraisal a
warning was an “unusual deviation from standard proce-
dure” and was a “devious way to advance to the punish-
ment stage.” The judge concluded that the Respondent’s
reliance on the appraisal as a first warning demonstrated
animus against the Union.
Contrary to the judge, we do not find that this warning
and suspension violated Section 8(a)(3) and (1) of the
Act. The Respondent’s disciplinary policy states that, if
an employee has received two write ups, the employee
may be issued a suspension. Here, the uncontradicted
evidence shows that the Respondent advised Henson in
her appraisal to improve specific areas of her perform-
ance, including her customer relations. The evidence also
shows that Henson continued to be discourteous to the
Respondent’s customers, despite the initial warning in her
appraisal to correct her attitude. The Respondent disci-
plined Henson on June 16 for engaging in the same type
of inappropriate behavior criticized in her appraisal. For
this reason, we conclude that, even assuming that the
General Counsel established that Henson’s union activity
was a motivating factor for the June 16 reprimand and
suspension, the Respondent has shown, by a preponder-
ance of the evidence, that it would have issued the disci-
pline even in the absence of Henson’s union activity.4
Accordingly, we dismiss this allegation of the complaint.
2. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by coercively interrogating Henson
about her union activities, and by creating an impression
of surveillance of her union activities. The judge also
found that the Respondent engaged in actual surveillance
by deceptively obtaining the credit card receipt of union
organizer and statutory employee Tom Simmons.5 We
agree with the judge’s finding that this conduct interfered
with the Section 7 rights of the Respondent’s employees.
Further, we also agree with the judge’s finding, as set
3 All dates are in 1998, unless stated otherwise.
4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
5 Simmons is a volunteer organizer for the Union. Simmons is also
an employee of Fiber Web North America in Washougal, Washington,
an affiliate company of Far West Fibers, Inc.
331 NLRB No. 116
E-Z RECYCLING 951
forth below, that the Respondent’s conduct with regard to
Simmons’ credit card receipt violated Section 8(a)(1)
because it had the reasonable tendency to interfere with
Simmons’ right to serve as a union organizer.
On July 7 the Union, through Simmons, decided to
sponsor a free pizza lunch for the Respondent’s employ-
ees. On July 8, Henson ordered the pizza from the
Round Table restaurant and Simmons paid for it with his
personal VISA credit card. When the Respondent’s as-
sistant plant manager, Mike McCracken, learned of the
luncheon from another employee, he asked Henson who
paid for the food. Henson asserted that she prepaid for it
by credit card and did not have the receipt.6 In order to
verify Henson’s representation that she had paid for the
pizza, McCracken called the restaurant, falsely claimed
to be an associate of Simmons, and asked for a copy of
the credit card receipt. He then drove to the restaurant
and got a reprint of the receipt from the manager. Based
on that evidence, the Respondent’s general manager,
Mary Sue Smith, instructed McCracken to issue a warn-
ing to Henson for lying to McCracken about the source
of the pizza. Later that afternoon, Henson continued to
deny to Smith and McCracken that the Union was the
source of the pizza. After confronting Henson with
Simmons’ credit card receipt, Smith and McCracken
issued Henson a warning and told her that her next trans-
gression would result in termination.7
The judge found, inter alia, that Simmons’ statutory
right to serve as a union organizer was violated when
McCracken, claiming to be verifying Henson’s story,
obtained a copy of Simmons’ credit card receipt from the
restaurant by falsely claiming to be an associate of Sim-
mons. The judge concluded that the Respondent inter-
fered with Simmons’ right to serve as a union organizer
because it demonstrated that it could gain access to
Simmons’ personal finance record. We agree.
The record shows that Simmons was employed by an
affiliate company of the Respondent. As such, he was an
employee within the meaning of Section 2(3) of the Act.

r. 1964).

6 In finding that the Respondent violated Sec. 8(a)(1) of the Act by
interrogating Henson regarding whether she or the Union paid for the
pizza, the judge concluded that the Respondent’s conduct was, in es-
sence, “the setting of a trap,” because the interrogation was designed
only to force Henson to reveal her union propensity or lie about it.
Although we agree with the judge’s conclusion that the interrogation
interfered with Henson’s Sec. 7 rights, we find it unnecessary to pass
on the judge’s additional finding that the Respondent’s conduct
amounted to a “trap” in violation of Sec. 8(a)(1) of the Act.
In adopting the judge’s finding that the Respondent coercively inter-
rogated Henson, Member Brame relies on the totality of the circum-
stances here in that, after Henson responded untruthfully to its
questioning, the Respondent surreptitiously obtained a copy of
Simmons’ credit card receipt, confronted Henson with this evidence,
and then issued Henson a verbal warning for lying. Therefore, Member
Brame finds that the Respondent’s inquiry violated Sec. 8(a)(1) of the
Act in light of these additional violations that the judge found. See
generally Bourne Co. v. NLRB, 332 F.2d 47, 48 (2d Ci
7 The judge found, and we agree, that this warning violated Sec.
8(a)(1) of the Act.
Thus, Simmons engaged in protected activity when he
sought to organize the Respondent’s employees, and
when he purchased a pizza lunch for those employees as
part of his organizing effort. The Respondent’s conduct
in deceitfully investigating and obtaining Simmons’
credit card receipt would reasonably tend to discourage
Simmons from engaging in such protected activities and
serving as a volunteer union organizer. It also likely
could discourage the Respondent’s employees, to the
extent they became aware of their employer’s conduct,
from engaging in similar activities. Accordingly, we
conclude that the Respondent’s conduct with regard to
the credit card incident interfered with the Section 7
rights of Simmons, as well as those of the Respondent’s
employees.8
3. The judge found, and we agree, that the Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
employee Henson on July 16 for engaging in union ac-
tivities. We do so for the following reasons.
Initially, we find that the General Counsel has made a
strong showing that Henson’s union activity was a moti-
vating factor in the Respondent’s decision to discharge
her. Henson was an active member of the Union’s orga-
nizing committee. The Respondent had knowledge of
Henson’s union activity at least as of July 8, when em-
ployee Chelle Bennett informed McCracken that the Un-
ion was planning a pizza lunch for the employees and
that Henson was involved in organizing the lunch.9 Her
discharge occurred just 8 days later. In between those
two events, the Respondent demonstrated substantial
animus directed specifically at Henson’s union activities.
Thus, the Respondent violated Section 8(a)(1) of the Act
by interrogating Henson, by engaging in unlawful sur-
veillance and by creating the impression of surveillance
of her union activities, and by issuing her an unlawful
warning. Accordingly, under Wright Line, supra at fn. 4,
the burden shifted to the Respondent to demonstrate that
it would have discharged Henson even absent her union
activity.
In its exceptions, the Respondent contends that it met
its Wright Line burden and established that Henson was
discharged for poor work performance. It cites the writ-
ten complaints about Henson it solicited from other em-
ployees after Henson’s unlawful warning and argues that
even the judge found that Henson’s workplace shortcom-
ings were “real.” We disagree.
8 In his decision, the judge recommended, as part of the Respon-
dent’s remedy, that the Respondent be ordered to write a letter of apol-
ogy to Simmons for having obtained access to his personal financial
records and simultaneously post the letter next to the official notice to
employees at the Respondent’s plant in Portland, Oregon. We shall
delete this recommended remedy and instead order the Respondent to
mail a copy of the notice to employees to Simmons. Such a remedy is
sufficient, in our view, to effectuate the purposes of the Act.
9 We find it unnecessary to rely on the judge’s finding that the Re-
spondent had knowledge of Henson’s union activity as early as June 13,
when she openly placed union campaign flyers on her desk.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 952
“Under Wright Line, an employer cannot carry its bur-
den of persuasion by merely showing that it had a legiti-
mate reason for imposing discipline against an employee,
but must show by a preponderance of the evidence that
the action would have taken place even without the pro-
tected conduct.” Hicks Oils & Hicksgas, 293 NLRB 84,
85 (1989), enfd. 942 F.2d 1140 (7th Cir. 1991). As set
forth above, we have found that by attempting to secure
information from Henson concerning the extent to which
she had chosen to engage in organizational activities and
by thereafter warning her when it was dissatisfied with
her answer, the Respondent violated the Act. Given
these findings, the Respondent could satisfy its Wright
Line burden only by showing that the discharge would
have occurred even in the absence of the unlawful warn-
ing. This it failed to do. To the contrary, the record in-
dicates a clear linkage between the unlawful warning and
the discharge. Thus, at the time it issued the unlawful
warning, the Respondent informed Henson that her next
infraction would result in termination. Further, the com-
plaints the Respondent relied on in discharging Henson
were solicited by the Respondent soon after it learned of
her union activities and immediately after it issued her
the unlawful warning. Accordingly, we cannot find that
the Respondent has shown that it would have discharged
Henson even absent her unlawful warning. For these
reasons, we agree with the judge that Henson’s discharge
violated Section 8(a)(3) and (1) of the Act.10
4. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act when it catered a free barbecue
lunch for the employees. The evidence shows that the
Respondent had never had a free luncheon for the em-
ployees and that it gave no reason to the employees for
the June 25 barbecue. Based on the timing of the event,
the judge found that the employees reasonably concluded
that the Respondent catered the lunch in order “to offset
any union claim that Respondent was not sympathetic to
its employees.” The judge also found that even though
the cost of the food was minimal, the Respondent pro-
vided the lunch primarily to induce the employees to
refrain from seeking union representation. Because the
lunch was provided in response to union organizing and
it was a departure from past practice, the judge con-
cluded that the Respondent’s conduct interfered with the
employees’ statutory rights.
We disagree with the judge’s finding. The Board has
consistently held that, absent special circumstances, it is
a legitimate campaign device and not coercive for an
employer to provide free food and drinks to employees.

10 Although Member Brame agrees with his colleagues that the Re-
spondent discriminatorily discharged employee Henson, he finds it
unnecessary to rely on the judge’s conclusion that the statements the
Respondent solicited from other employees documenting their com-
plaints about Henson “actually contribute[d] to the [General Counsel’s]
prima facie case” instead of supporting the Respondent’s defense to this
allegation.
Waste Management of Palm Beach, 329 NLRB 198
(1999), citing L. M. Berry & Co., 266 NLRB 47, 51
(1983). There are no “special circumstances” here. In-
deed, the evidence shows that the Respondent sponsored
the free luncheon at a cost for the food of less than $5 per
employee. See Chicagoland Television News, Inc., 328
NLRB 367 (1999). Accordingly, we reverse the judge’s
finding and dismiss this allegation.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 5.
“5. On July 8, 1998, the Respondent, through Smith
and McCracken, violated Section 8(a)(1) by (a) interro-
gating Henson regarding her union activity; (b) engaging
in surveillance and creating the impression of surveil-
lance of employees engaged in union activity or activity
protected by Section 7 of the Act by obtaining through
trickery the credit card receipt of union organizer, Tom
Simmons, and confronting Henson with it; and (c) by
issuing employee Henson a warning because she refused
to reveal her Section 7 activities to them.”
2. Delete the judge’s Conclusions of Law 3 and 4 and
renumber the subsequent paragraphs accordingly.
ORDER
The National Labor Relations Board orders that the
Respondent, Far West Fibers, Inc. d/b/a E-Z Recycling,
Portland, Oregon, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding their
union activities.
(b) Issuing employees warnings because they refuse to
reveal their Section 7 activities to management.
(c) Engaging in surveillance or giving the impression
of surveillance of employees who are engaged in union
activity or other activity protected by Section 7 of the
Act.
(d) Investigating the financial records of employee/
volunteer union organizers in order to deter them from
union organizing.
(e) Discharging or otherwise discriminating against
employees because they have engaged in activities for
and on behalf of the Association of Western Pulp and
Paper Workers, a/w United Brotherhood of Carpenters
and Joiners of America, AFL–CIO, or on behalf of any
other union.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Krista Henson full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
E-Z RECYCLING 953
(b) Make Krista Henson whole for any loss of earnings
and other benefits she suffered as a result of the dis-
crimination against her, in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warning and
discharge of Krista Henson, and within 3 days thereafter
notify Henson in writing that this has been done and that
neither the warning nor the discharge will be used
against her in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of the records
if stored in electronic form, necessary to analyze the
amount of back pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its plant in Portland, Oregon, copies of the attached no-
tice marked “Appendix B.”11 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 8, 1998.
(f) Within 14 days after service by the Region, mail a
signed copy of the official notice to employees to union
organizer and statutory employee Tom Simmons.
(g) Within 21 days after service by the Region, the Re-
spondent shall 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.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States

11 If this Order is enforced by a judgment of the 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.”
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 coercively interrogate employees regard-
ing their union activities.
WE WILL NOT issue employees warnings because they
refuse to reveal their Section 7 activities to management.
WE WILL NOT place employees under surveillance or
give the impression of surveillance of employees who are
engaged in union activity or other activity protected by
Section 7 of the Act.
WE WILL NOT investigate the financial records of em-
ployee/volunteer union organizers in order to deter them
from union organizing.
WE WILL NOT discharge or otherwise discriminate
against employees because they have engaged in activi-
ties for and on behalf of the Association Of Western Pulp
And Paper Workers, a/w the United Brotherhood of Car-
penters and Joiners of America, AFL–CIO (AWPPW), or
on behalf of any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Krista Henson full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Krista Henson whole, with interest, for
any loss of earnings and other benefits she suffered as a
result of our discrimination against her.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful warning and discharge of Krista Henson, and
WE WILL, within 3 days thereafter, notify Henson in writ-
ing that this has been done and that neither the warning
nor the discharge will be used against her in any way.
FAR WEST FIBERS, INC. D/B/A E-Z RECYCLING
Stephanie Cottrell, for the General Counsel.
Richard Van Cleave (Davis, Wright & Tremaine), of Portland,
Oregon, for the Respondent.
Mark Bozarth, Representative, Association of Western Pulb
and Paper Workers, of Portland, Oregon, for the Charging
Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 954
BENCH DECISION AND CERTIFICATION
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Portland, Oregon, on April 6, 1999. It was orally
argued on May 3 and the attached Bench Decision was ren-
dered on May 19. The charges were filed on May 26 and July
24, 1998, respectively, by the Association of Western Pulp and
dPaper Workers, affiliated with the United Brotherhood of
Carpenters and Joiners of America, AFL–CIO. The consoli-
dated complaint issued January 29, 1999. It alleges that Re-
spondent violated Section 8(a)(3) and (1) of the Act. Respon-
dent’s answer denied the commission of any unfair labor prac-
tice.
After hearing the evidence on April 6, 1999, I determined
that it was appropriate for me to issue a bench decision under
the Board’s Rule 102.35(a)(10). Pursuant to the Board’s Rule
102.45(a), I hereby attach pages 262–291 of the transcript to
this decision as Appendix A and certify that it (including inter-
lineal corrections), is an accurate transcription1 of my decision
as delivered.2
Appendix B [omitted from publication] is the recommended
notice to employees. The Regional Director is given discretion
to require its publication/posting in any foreign language he
deems appropriate.
“APPENDIX A”
P R O C E E D I N G S
[Errors in the transcript have been noted and corrected.]
262
ADMINISTRATIVE LAW JUDGE KENNEDY: This is a resump-
tion of Far West Fibers, dba E-Z Recycling. Case 36–CA–
08233. This is being—this is the Bench Decision that’s being
conducted by telephone conference.
Participating in the conference are the Counsel for the Gen-
eral Counsel, Ms. Stephanie Cottrell, Counsel for Respondent,
Richard Van Cleave, and a representative from the Charging
Party, Mark Bozart. They are all on the line. And I’m just
going to begin.
I will probably advise people that I’m going to treat this as if
it were dictation, so I will be giving instructions to the tran-
scriber as we go. I hope that isn’t too distracting.
MR. VAN CLEAVE: Judge, this is Mr. Van Cleave. We’re
losing you. You’re cutting in and out.
ADMINISTRATIVE LAW JUDGE KENNEDY: Am I?
MR. VAN CLEAVE: Yeah.
ADMINISTRATIVE LAW JUDGE KENNEDY: Well, I’ll try—well,
let’s just keep trying, and if it’s a problem, we’ll start over
again.
MR. VAN CLEAVE: Okay.

1 The transcript pages reproduced in Appendix A are copied verba-
tim from the reporting service’s diskette. They have been reformatted
to allow for the corrections which have been shown. The reformatting
process resulted in fewer lines per page and those lines have been re-
numbered. The pagination remains accurate.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ADMINISTRATIVE LAW JUDGE KENNEDY: All right. The
heading is:
BENCH DECISION
Evidence was taken in this matter on April 6, 1999. An oral
argument was conducted
263
by telephone conference on May 3. I’ve considered the evi-
dence and taken into account the respective arguments made by
the General Counsel and by Respondent.
The Allegations
In chronological order, the complaint makes the following
allegations:
1. On June 16, 1998, Respondent unlawfully suspended em-
ployee, Krista Henson, for one day because of her union activi-
ties.
2. On June 24, Respondent’s general manager, Keith Ristau,
interfered with Henson’s union activity by surreptitiously lis-
tening in on some telephone calls, one of which was with a
union official.
3. The following day, June 25, Respondent provided em-
ployees with a barbecue lunch in order to discourage them from
union activity.
4. On July 8, Respondent, through Assistant Manager Mike
McCracken and General Manager Mary Sue Smith,
a) interrogated Henson regarding her union activity—
specifically whether she or the union were paying for a pizza
lunch that day.
b) unlawfully surveilled Henson and the union through pos-
ing as a union representative and tricking the pizza parlor into
giving a copy of the credit card payment receipt, signed by a
union official
264
to Respondent’s McCracken.
c) issuing Henson a written warning that day for her behav-
ior.
5. On July 16, discharging Henson because of her union ac-
tivity.
6. On July 27, refusing to rehire its former employee, Bruce
Montgomery.
The Evidence
A. The Pleadings.
Respondent admits it is an Oregon corporation. It operates
several paper recycling facilities in Oregon and Washington,
including this one located in Portland, doing business as E-Z
Recycling. It admits that it annually sells and ships products
valued in excess of $50,000 from Oregon to other states. And
further admits it is an employer engaged in commerce within
the meaning of Section 2(2)(6) and (7) of the Act. It also ad-
mits that the Charging Party, the Association of Western Pulp
and Paper Workers, affiliated with the United Brotherhood of
Carpenters and Joiners of America, AFL–CIO, the (AWPPW)
is a labor organization within the meaning of Section 2(5) of
the Act.
Respondent also admits that the following managers are su-
pervisors, as defined by Section 2(11) and agents as defined by
Section 2(13) of the Act: Mary Sue Smith, General Manager;
Keith Ristau, General Manager; Mike McCracken, Assistant
Plant
E-Z RECYCLING 955
265
Manager.
B. The testimony.
In large part, the testimony is not in significant dispute.
Where there is testimonial disagreement, it is not particularly
dispositive, and therefore, unnecessary to resolve it.
Respondent’s Portland employees are not represented by any
union. At that facility, employs, among others, sorters, mainte-
nance workers, scales clerks/scales masters, and an office staff.

(1) Krista Henson.

Krista Henson was hired as a scales clerk in October 1997.
She had sometime previously worked for Respondent through a
temporary agency. As one of the two scales clerks, she pre-
pared shipment and receiving paperwork, weighed trucks in and
out, served as a cashier and answered the telephone. Ristau was
her immediate supervisor.
Bruce Montgomery was a plant maintenance employee, who
had been hired in September 1996, and who was discharged in
late May 1998. His discharge is not a subject of the Complaint,
which alleges only that Respondent illegally refused to rehire
him on July 24, 1998.
I may have to correct that date there. The Complaint alleged
the 24th or the 27th, Ms. Cottrell?
MS. COTTRELL: I believe we have amended it at trial to
266
the 27th.
ADMINISTRATIVE LAW JUDGE KENNEDY: Okay. So that
should be the 27th.
July 27, 1998. Montgomery’s immediate “supervisor” (more
likely a lead person) was David Rowlands. Prior to May 18,
1998, Rowlands was in charge of two maintenance workers,
Montgomery and Mike Pollock. After May 18, 1998, Rowlands
became a “floater,” travelling between plants and managing the
furnaces.
Rowlands was the individual who first contacted the
AWPPW. He did so by telephone in late April or early May
1998. Both Montgomery and Pollock were with Rowlands
when he made the call. On May 7 or 8th, those three met with
AWPPW officials at the Wooden Chicken Restaurant. Eventu-
ally, an organizing committee was formed, consisting first of
Rowlands, Montgomery and Pollock. Shortly thereafter,
Henson joined the committee, and Montgomery dropped out
after he was discharged.
On June 13, Union Organizer Tom Simmons handed out fly-
ers in front of the premises. Henson obtained several of them
and placed them on her desk face up, to be taken and read by
anyone who wished. The scales office where she works has
heavy employee and management traffic. She says Ristau
looked at the flyers on her desk but said nothing. The flyers
were brightly colored, of the neon variety, whose colors were
sure to attract notice.
267
On June 16, Ristau issued a written warning to Henson asser-
tively for being rude to a customer on the telephone. Ristau
said that when he spoke to the customer, the customer told him
the person who answered the phone was either in a real hurry or
was having a bad day—she had been short with him. He could
not describe the incident in any greater detail, or even when it
occurred. The write-up also mentioned other incidents as well,
which are also devoid of detail. During his meeting with
Henson regarding the write-up, he advised her that she was to
receive a one-day suspension, because it was considered a
“second such warning.” In fact, however, it was her first warn-
ing, and Ristau knew it. He explained to her that he was con-
sidering her “annual” appraisal of April 1 to be the first warn-
ing. In fact, the appraisal did not cover a year, but only five
months, as she had been hired in late October 1997. In general,
it describes her as an “average” employee, noting work habits
which could be improved.
One of the remarks in the appraisal form was that she could
be short or abrupt with customers. They also included remarks
about her becoming upset with “dumb questions,” that she was
sometimes lax in her work, and sometimes developed an atti-
tude towards her superiors. It concluded with observing that
she had only a few short months of experience, while others
had many, many years.
But there are at least three remarkable aspects about this
268
warning/suspension. First, the incident is poorly described, and
thus, vague as to both particulars and the date and times the
incidents occurred. Indeed, the space on the form for that in-
formation was left blank. Two, calling a periodic appraisal a
warning is an unusual personnel practice. Three, combining the
appraisal with a vague warning so that the matter immediately
progresses to the suspension stage seems to be evidence that
Ristau was in a hurry to get to and then justify the suspension.
The entire procedure seems artificial.
About a week and a half later, on June 24, Henson and a fel-
low employee, Valerie Dodd, had a heated discussion regarding
Henson’s involvement in the organizing. As a result, Henson,
while on her break, went to the conference room and made two
telephone calls, one to Union Organizer Simmons, and one to
her fiancé. She was upset, crying and spoke loudly enough to
be heard through closed doors. She also used loud epithets as
she spoke. After she completed the calls, she exited the confer-
ence room still upset. Ristau intercepted her and took her back
into the room. He told her he had heard the conversation and
asked if she wanted to talk about it. She declined. That ex-
change was repeated, and she told him she regarded the conver-
sations as private and didn’t wish to discuss them with him.
She acknowledges that she had referred to Ristau during the
call to Simmons in foul terms, and that in part of the conversa-
tion with Ristau, he wanted to know why. There’s no
269
evidence that Ristau had listened to the conversations by exten-
sion line, only that he had heard her side of the conversations
through the walls because she had spoken so loudly. That is
confirmed by Dodd. Dodd also says she overheard Henson
refer to her in profane terms during those conversations.
On the following day, June 25, for the first time in the his-
tory of the company, Respondent arranged for a catered barbe-
cue lunch for its entire staff. There was no special occasion to
celebrate or any other explanation for it. Yet, no management
official mentioned the union in connection with the barbecue.
Nonetheless, Henson, and apparently the organizing commit-
tee, became persuaded that the barbecue was in direct response
to Respondent’s realization that its employees were considering
union representation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 956
On July 7, the union organizing committee decided to use a
similar tactic. The union, through Simmons, decided to spon-
sor a pizza lunch the following day. The next morning, July 8,
Simmons went to a Round Table Restaurant near the plant to
await Henson’s order so he could pay for it with his VISA
credit card. In the meantime, Henson had told employees about
the pizza lunch, including office employee, Chelle Bennett.
Bennett informed Assistant Plant Manager McCracken of
Henson’s plan. McCracken took the matter to General Man-
ager Smith, they in turn
270
informed the company majority owner, John Drew. After talk-
ing together, they decided to investigate the matter further.
While this was occurring, Henson called the Round Table and
placed the order. Simmons did pay for it using his personal
VISA card, and obtained a credit card receipt.
Shortly after Henson placed the order, sometime before
10:00 a.m., McCracken asked her about the pizza and who had
paid for it. She told him that she had paid for it. She then said
he needed proof that she had done so. She asserted that she had
prepaid by credit card and could not show him the proof.
McCracken claims that the company had made a decision to
allow the pizza to be delivered no matter who had paid for it,
Henson or the union. Oddly however, McCracken then took
some underhanded steps to find out who had paid for the pizza.
He seemed to have a special need to find out who had paid,
even though he acknowledges that he was pretty sure (from
information provided by Bennett) that it was the union. He
wanted to “verify” what Henson had told him. In fact, he was
sure Henson had lied about who was paying and he wanted to
prove it.
To that end, he called the Round Table Pizza Restaurant,
falsely claimed to be an “associate” of Simmons, and asked for
a copy of the credit card receipt. He drove to the restaurant and
got a reprint of the receipt from the manager. McCracken’s
admission here was reluctant, and he was loath to admit that he
had tricked the Round Table manager in to giving him the
271
receipt. Even in his own notes, Respondent’s Exhibit 11, he
glosses over his trickery.
McCracken then reported to Smith that Henson had not paid
for the pizza and had lied when she said she had.
Smith says she gave instructions to McCracken to issue a
warning to Henson for not being truthful about the source of the
pizza, and for being insubordinate in her conversation with
McCracken that morning. She claims she did not consider
discharge at that point.
Later that afternoon, Smith and McCracken spoke to
Henson. Smith says she continued to deny that the union was
the source of the pizza. When they confronted her with Sim-
mons’ credit card receipt, she says Henson told them that Sim-
mons was a personal friend. Henson says she told them they
should not have had Simmons’ receipt, and that she lied be-
cause she was being pressured by McCracken. She says they
told her that the next transgression would result in her termina-
tion.
The meeting ended prematurely when Henson said she was-
n’t feeling well due to an ankle injury she had suffered a few
days before. She asked to go home.
A few minutes after Henson left Smith’s office, Smith says a
commotion occurred down the hallway. Smith went to find out
what was happening and learned that some sort of argument
had ensued between Henson and employees, Diana White and
Dodd.
Smith says she later told them that it was not their place
272
to argue with fellow employees, that if they had a problem they
should describe it in written form. According to Smith, this
direction resulted in numerous written complaints being filed
on or around July 9 concerning Henson. These complaints are
in evidence as Respondent’s 2 through 9, although some of
them do precede the 9th by a day or two.
Smith says that after receiving these complaints, and after
consulting with Drew and Attorney Mark Hutchinson, that she
made the decision to discharge Henson. On July 16, about 8:15
a.m., Ristau called Henson to Smith’s office. Smith told her
that she had been investigating the incidents from the past, and
had been talking to people about her, and as a result, Smith had
determined to discharge her.
Respondent’s 10 is a list of the incidents to which Smith re-
ferred, and which she read to Henson during the meeting. They
also contain Henson’s denials. These range from calling people
obscene names, to referring to people in obscene terms, to poor
telephone manners, arguing, being disrespectful to supervisors,
and failing to follow company closing and bookkeeping proce-
dures.

(2) Bruce Montgomery

As noted above, Bruce Montgomery had been discharged in
late May 1998. He had been one of the early members of the
organizing committee, but there’s no proof that Respondent
knew it at the time he was discharged. Moreover, he admitted
to
273
having obtained a private memo from Ristau’s office without
permission. That memo related to the recruitment of an em-
ployee who seemed to be aimed at taking Rowlands’ job.
Rowlands, also as noted above, had become the “floater” on
June 18. He became concerned about Montgomery’s circum-
stances and knew that Montgomery had taken the blame for the
purloined memo to protect the employee, Reece, who had actu-
ally done it.
On July 23, 1998, Rowlands met with company majority
owner, John Drew, and another owner, Jeff Murray. He told
Drew that Montgomery really hadn’t entered Ristau’s office,
that Reece had. Rowlands said Drew, told him he would look
into it. On July 27, Rowlands said he met with Murray to ask if
he were going to reinstate Montgomery. He says Murray told
them that they could not do anything more about it because
Montgomery was involved with the union, and Drew could not
talk to Rowlands about it anymore.
At some point Smith and Drew (but not Murray) did recon-
sider the Montgomery situation. According to a handwritten
memo by Drew, dated July 29, that reconsideration only took
the form of observing that Montgomery had changed his story
and that the NLRB Regional Office was likely to reject the
unfair labor practice charge which the union had filed.
There’s no evidence that anyone, not even Rowlands, has
ever asked that Montgomery be reinstated. Montgomery testi-
E-Z RECYCLING 957
fied that he has never asked for reinstatement, or ever author-
ized
274
Rowlands to do so on his behalf. Moreover, Rowlands’ testi-
mony never amounts to an actual request for reinstatement. At
best, he simply advises the managers that another employee had
committed the act for which Montgomery had been discharged.
He seems only to be hoping that the company will correct an
injustice. He never claims to have specifically requested
Montgomery’s reinstatement.
Analysis
A) Henson

Rather clearly, Krista Henson was a known union activist.
She was a member of the organizing committee. She had pub-
lic discussions with fellow employees. She placed a stack of
union flyers at her desk, which managers such as Ristau, and
probably McCracken, were likely to have seen. Employee
Bennett told McCracken that Henson and the union were going
to buy pizzas to distribute to the employees on July 9.
Also rather clearly, based on Henson’s April appraisal, and
my assessment of her demeanor, Henson has several workplace
shortcomings. These shortcomings were real, and in the main,
are due to Henson’s own inability to recognize and accept criti-
cism. She was a new employee, new to the workforce, and not
very understanding of the need to be courteous and respectful
to both the employer and its customers, as well as her fellow
employees. She was, and is, immature.
Having made both of these observations, I note only that
275
these are competing considerations when analyzing the overall
circumstances.
In determining whether or not an employer has discharged an
employee because of his or her union activities, the prima facie
case requires evidence of: union activity, which is known to
the employer; that the employer harbors union animus; that the
animus is connected to the discharge, either by timing or some
other connection.
Animus can take several forms. It may manifest itself
through other unlawful conduct, such as 8(A)(1) threats or
promises—conduct which reasonably tend to interfere with the
free exercise of rights guaranteed by the Act. See El Rancho
Market, 235 NLRB 468, 461 (1978). The granting of benefits
in response to union organizing is generally considered to be a
violation, so of course, are creating the impression that an em-
ployee’s union activities are under surveillance, and coercively
questioning an employee about his or her union activity. Ani-
mus could also be inferred from other conduct. For example,
mendacity connected to union organizing or an unexplained
departure from a routine.
The prima facie case can be rebutted by a showing, through a
preponderance of the evidence, that the employer would have
done the same thing regardless of whether or not the employee
had engaged in union activity. See Wright Line, 251 NLRB
1083, enfd. 662, F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989
276
(1982). The doctrine was approved in NLRB v. Transportation
Management, 462 U.S. 393 (1983).
In this case the General Counsel has made out a prima facie
case with respect to Henson. First, Henson has clearly been
engaged in union activities, starting in early June 1998. She
was reasonably open about it, beginning June 13, when she
placed the AWPPW flyers on her desk. There is undenied evi-
dence that Supervisor Ristau did see it, and Assistant Plant
Manager McCracken probably saw it. The extent of her activ-
ity became even more widely known in July when she partici-
pated in the pizza purchase.
However, the warning and suspension of June 16 is the first
evidence of union animus. I will not quarrel with Respondent’s
so-called annual appraisal of Henson in early April, even
though a year had not passed since she had been hired. I accept
the explanation that everyone is appraised in April. I do find,
however, that declaring the warning of June 16 to be her second
warning, leading to the suspension, to be an unusual deviation
from standard procedure. Appraisals are not warnings. What-
ever may have been said in the appraisal amounts to pointing
out areas where an employee may improve himself or herself. It
is not and cannot be considered a warning aimed at a specific
act.
Thus, I find that calling the June 16 warning a second warn-
ing, permitting suspension, to be an unexplained
277
departure from the norm, indeed, a devious way to advance to
the punishment stage. Clearly, it was intended as a dual mes-
sage to Henson. First, it had the legitimate purpose of trying to
get her to correct some poor work habits. But second, it was to
let her know that her union activity would not go unnoticed or
would not be without cost. As such, it demonstrates that Re-
spondent harbors union animus. Rather clearly, the warning
and suspension violated Section 8(A)(1) and (3). Had the mat-
ter stopped with only a warning, treated as a first warning
(which it clearly was), my analysis might be different.
The animus continued to be visible in July. On July 9,
McCracken (affirmed by Smith and Drew) despite the knowl-
edge of Henson’s union connection obtained from Bennett,
nonetheless interrogated Henson regarding the true source of
the funds for the pizza. The interrogation was entirely unneces-
sary and was designed only to force Henson either to reveal
what Respondent already knew, her union propensity, or to
force her to lie about it. Forcing Henson to lie was, in essence,
the setting of a trap. But the animus went further, McCracken
falsely told the pizza restaurant manager that he was Simmons’
associate, thereby deceitfully impersonating a union official
and fraudulently obtaining a copy of Simmons’ credit card
receipt.
All for what purpose? Only to confront Henson with it - to
prove that she was lying and to show how dangerous it was to
278
associate herself with the union. Rather clearly, this conduct
has the reasonable tendency to interfere with Henson’s Section
7 right to seek representation by a union. Thus, the interroga-
tion violated Section 8(A)(1) of the Act.
The credit card receipt incident qualifies as two types of vio-
lations. First, by confronting Henson with the credit card re-
ceipt, Respondent demonstrated that it could create the impres-
sion of surveillance of employees’ union activity, as well as
proving that it had the actual capability and the will to find out
what union activities the employees were engaged in. More-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
over, it demonstrated that it could actually gain access to a
union official’s personal finance files and get the information.
This truly was a devious destructive act, insofar as the inva-
sion of Section 7 rights is concerned. Not to mention an outra-
geous invasion of Simmons’ personal files.
Simmons, by the way, is a statutory employee himself. He is
an employee of Fiber Web North America in Washougal,
Washington. He serves as a voluntary organizer for the
AWPPW.
Therefore, Respondent’s invasion of Simmons’ personal
credit card records not only coerced Respondent’s own em-
ployees in the exercise of their Section 7 rights, it also inter-
fered with Simmons’ Section 7 right to be a volunteer union
organizer. There’s no question in my mind that McCracken’s
behavior had the reasonable tendency to interfere with Sim-
mons’ right to serve as
279
a union volunteer. An NLRA remedy for this 8(A)(1) violation
is entirely warranted. The conduct was admitted and has there-
fore been fully litigated. I shall issue an appropriate order with
respect to that act.
Finally, as I said before, Respondent laid a trap for Henson.
She could either admit her union activity or lie about it. She
chose to lie and Respondent then issued her a warning for ly-
ing. That trap, too, violates Section 8(A)(1). Indeed, such a
trap attacks the very heart of the Act. An employee may not be
put to such a dilemma without entirely disregarding the protec-
tions the Act provides. Henson could not engage in the simple
act of helping the union in its effort to organize Respondent’s
employees without some sort of negative impact. Either she
revealed what she was doing or she lied about it, only to be
exposed and punished.
That she walked out of the meeting with Smith and
McCracken upset and got involved in a confrontation almost
immediately was entirely predictable. She had been trapped
and embarrassed. But Respondent did not stop there, it took
advantage of the fact that Henson had some employment-
related shortcomings. Smith suggested to the staff that she
would do nothing about Henson unless the employees docu-
mented their complaints about her. This resulted in several
memos to Smith from other staff members, all complaining
about something Henson had done or had failed to do.
280
In general, I will not question the verities of the complaints
set forth in the memos. At least one precedes the incident of
July 9. And, my own assessment of Henson’s demeanor on the
stand leads me to conclude that some of the shortcomings - at
least those related to personality—have some validity.
Even so, they do not rise to a valid defense under Wright
Line. Respondent did not fire Henson because the complaints
were valid, it used them as part of an overall scheme to cover
its true motive, to get rid of a union activist. Had Henson not
been engaged in union activity, Respondent would not have
trapped her as it did, and Smith would not have been motivated
to induce the avalanche of complaints, which came immedi-
ately after the July 9 incident.
Thus, the memos, far from being a defense to the prima facie
case, actually contribute to the prima facie case.
Thus, the prima facie case stands entirely unrebutted, no
Wright Line defense has been established, much less become
persuasive. I therefore find Respondent violated Section
8(A)(1) and (3) on July 16, 1998, when it discharged Krista
Henson.
One other issue remains insofar as Henson is concerned. Did
Respondent, through Ristau, violate 8(A)(1) of the Act when he
overheard her on the telephone on July 24? I conclude that it
did not. Her testimony, as well as that of others, is that she
spoke loudly and angrily, and her voice was so loud it was
281
easily overheard through the walls. Ristau heard her and so did
Dodd. He became aware of how upset she was and simply
asked her if she wanted to talk about it with him. First, she
provided the means to be heard herself, by speaking loudly and
in a distraught manner; and second, she forced people to listen.
No surveillance or impression of surveillance can be inferred in
that circumstance. Second, her emotional state seemed to be a
call for help, and Ristau’s response was simply an offer of help.
He was not seeking to inquire about her protected activity, nor
can one reasonably think he was. This allegation should be
dismissed. Lastly, with respect to Henson, Respondent argues
that the union animus relied upon was dissipated by Respon-
dent’s having lent or given $2000 to Henson for legal represen-
tation related to a domestic affairs matter which she was hav-
ing. I have considered the loan and the grant, but find Smith’s
authorizing it to be insufficient to outweigh the evidence of
union animus elsewhere in the record.

B) The barbecue benefit.

On June 25, 1998, the day after Ristau overheard Henson
talking to a union official on the telephone, and about two
weeks after the union hand-billed Respondent’s facility, the
company gave its employees a free catered barbecue lunch.
The evidence is clear that Respondent had never provided such
a benefit to employees before. The only other time Respondent
had sponsored a dinner was an annual potluck dinner during the
holiday
282
season. Even there, Respondent did not provide food.
I am aware that the amount of this benefit was not great, the
price of a lunch, probably less than $5. Even so, it was given to
all of Respondent’s employees. While Respondent gave no
reason for the benefit, the employees reasonably concluded that
its purpose was to offset any union claim that Respondent was
not sympathetic to its employees. Moreover, the timing is con-
nected to the onset of the organizing drive. It occurred about
ten days after the union began leafleting, and one day after
Henson was overheard talking to a union official on the tele-
phone. In that circumstance, I find that the purpose of this
benefit was to induce employees to refrain from seeking union
representation by depicting itself as an employee-friendly em-
ployer. The practice of conducting the barbecue lunches did
continue for several times thereafter. As such things go, this
benefit is relatively minor. Even so, it was in response to the
union organizing, and it was a significant departure from its
previous practice. I’m therefore compelled to find that the
grant of the barbecue lunch tended to interfere with the em-
ployees’ exercise of Section 7 rights, and therefore, violated
Section 8(A)(1). See generally Medo Photo Supply Corp. v.
NLRB, 321 U.S. 678, 686 (1944). Also Del Ray Tortilleria,
272 NLRB 1106 (1984), enfd. 787 F.2d 1118, (7th Cir. 1986).

E-Z RECYCLING 959
C) Bruce Montgomery

The Complaint, as amended, alleges that Respondent refused
283
to rehire Montgomery on July 27 because of his union activity
subsequent to his lawful discharge in May.
The Board’s decision in Big E’s Foodland, 242 NLRB 963,
968 (1979), sets forth the elements of an unlawful refusal to
hire or rehire. There must first be an application for rehire
made by the alleged discriminatee. That must be followed by a
refusal to hire the discriminatee. Connected to those require-
ments are that the applicant must be expected to be seen as a
union supporter, that the employer viewed the applicant as
such, and the employer maintained animus against such persons
and that the refusal to hire or rehire is connected to that animus.
Here, the Montgomery allegation fails the first element.
Montgomery never reapplied for his job, nor did he authorize
Rowlands to apply for him. Indeed, Rowlands never actually
asked Respondent to rehire Montgomery. All he ever did was
to assert that Respondent had been misled into firing Mont-
gomery, and to suggest that Respondent look into it to see if, on
its own, it would change its mind.
Rowlands did succeed in getting Smith and Drew to take a
second look at it. By that time, the AWPPW had filed unfair
labor practice charges, which were then under investigation.
Smith and Drew simply looked to see whether Rowlands’ de-
scription of the facts changed anything. They concluded it did
not, but would make Montgomery look even worse to the
NLRB investigator because he would have told two inconsis-
tent
284
stories. This latter observation undermines a second require-
ment that the decision to not rehire be motivated by union ani-
mus. Here, despite the union animus seen elsewhere in the
case, Respondent’s officials simply decided to await the out-
come of the NLRB investigation into Montgomery’s discharge
before deciding anything. Therefore, the Montgomery allega-
tion will be dismissed. Neither he nor anybody ever applied for
reinstatement. And further, whatever action Respondent did
take was not based upon union animus. It is true that Rowlands
does say that Murray told him they could not do anything more
about Montgomery because he was involved with the union.
The General Counsel looks to that statement as an unrebutted
admission of a Section 8(A)(3) violation, but I do not concur.
First, there is no evidence that Murray was involved in the re-
consideration of Montgomery’s situation at all. Second, if
Murray said it, or something similar, it was only a reference to
the fact that the NLRB was investigating the unfair labor prac-
tice charge filed on Montgomery’s behalf by the AWPPW. It is
simply too ambiguous to have any significance. Based on the
foregoing findings of fact, I hereby make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6) and (7) of the Act.
2. The AWPPW is a labor organization within the meaning
of Section 2(5) of the Act.
285
3. On June 16, 1998, Respondent violated Section 8(A)(1)
and (3) of the Act when it warned and suspended its employee,
Krista Henson, because of her activities for and on behalf of the
AWPPW.
4. On June 25, 1998, Respondent violated Section 8(A)(1) by
granting employees the benefit of a free barbecue lunch, where
its purpose was to interfere with the employees’ right to seek
union representation.
5. On July 9, 1998, Respondent, through Smith and
McCracken, violated Section 8(A)(1) by: a) interrogating
Henson regarding her union activity. b) surveilling and giving
the impression of surveilling employees who were engaged in
union activity or activity protected by Section 7 of the Act. c)
issuing employee Henson a warning because she refused to
reveal her Section 7 activities to them.
6. On July 9, Respondent violated Section 8(A)(1) by obtain-
ing through trick the credit card record of a union official and
statutory employee, Tom Simmons.
7. On July 16, 1998, Respondent violated Section 8(A)(3)
and (1) when it discharged its employee, Krista Henson, be-
cause of her union activities.
8. Respondent did not violate Section 8(A)(1) on June 24,
1998, when its Supervisor Ristau overheard Henson’s tele-
phone call and responded to its emotional nature.
9. Respondent did not violate Section 8(A)(3) and (1) on
286
July 27 when it reviewed its nondiscriminatory discharge of
Bruce Montgomery in late May, and decided to let its decision
stand.
Remedy
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
As it discriminatorily suspended Krista Henson, it must
make her whole for any loss of earnings from that suspension
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Furthermore, since it subsequently discharged Henson, it
must offer her reinstatement and make her whole for any loss of
earnings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement is
made, less any net interim earnings, as prescribed by F.W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Because of Respondent’s outrageous misconduct, demon-
strating a disregard for the employees’ fundamental rights, I
find it necessary to issue a broad Order requiring Respondent to
cease and desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act. See Hickmott
Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]