Fixtures Mfg., Corp.

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 565 (N.L.R.B. 2000)

FIXTURES MFG. CORP. 565
Fixtures Manufacturing Corporation and Interna-
tional Brotherhood of Teamsters, Local Union No. 41,
AFL–CIO. Cases 17–CA–19174 and 17–CA–19366
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On January 16, 1998, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. 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 and
to adopt the recommended Order as modified and set
forth in full below.
1. We agree with the judge, for the reasons she states,
that the Respondent violated the Act by interrogating
employees about their union activities;1 by threatening
employees with discipline and/or discharge because of
their union activities; by discriminatorily banning union
solicitation and the distribution of union materials during
working time;2 by discriminatorily prohibiting the post-
ing of union materials on the employee bulletin board;3
by requesting employees to report to the Respondent
employees who harassed them when soliciting them on
behalf of the Union;4 by discriminatorily issuing a writ-
ten warning for insubordination to George Hulse;5 and by
discriminatorily discharging Penny Sheridan.
2. We agree with the judge that acting plant manager,
Thomas McCann’s statements to employee Robert Sheall
and to a group of supervisors, overheard by employee
Dennis Evans, constituted unlawful threats of discipline
or discharge. Contrary to Member Hurtgen, we adopt
both of the judge’s findings of unlawful threats.

1 In view of our finding that Acting Plant Manager Thomas McCann
unlawfully interrogated employee Robert Sheall, we need not pass on
the allegation that Supervisor Mike Parker also unlawfully interrogated
Sheall. The finding of such an additional violation would be cumula-
tive and would not affect the remedy.
2 In so doing, we rely on the testimony cited by the judge that
employees regularly engaged in solicitation during working time for a
wide variety of products and services.
3 The fact that prounion and antiunion materials were banned does
not warrant a contrary result. The important fact is that Sec. 7 material
(pro and con) was banned, and other material was permitted. See Vons
Grocery, 320 NLRB 53, 55 (1995).
4 The vice of Respondent’s conduct is that “harassment” is an am-
biguous term. Thus, for example, employees might reasonably think
that they are being asked to report on such protected activities as re-
peated efforts by the Union to persuade them to sign cards. See, e.g.,
Liberty House Nursing Homes, 245 NLRB 1194, 1197 (1979).
5 The judge inadvertently omitted her finding concerning Hulse from
the cease-and-desist portion of her recommended Order and from the
notice. We correct her omission here.
The test of whether a statement would reasonably tend
to coerce employees in the exercise of their protected
concerted activity is an objective one, requiring an as-
sessment of all the circumstances in which the statement
was made.6 The speaker’s intent is not a relevant factor.7
Here, McCann’s statement to Sheall was that if he passed
out union literature on company time, McCann would
“have to deal with it.” The statement was made in the
context of an unlawful interrogation of Sheall’s union
sympathies and in the course of announcing a rule that
discriminatorily prohibited only union solicitation and
distribution during working time. Under these circum-
stances, McCann’s remark would reasonably be con-
strued by Sheall to be a threat to discipline him for pass-
ing out union literature.
As the judge stated, McCann’s overheard remark to
four supervisors that, in order to deal with the Union,
“they need to verbally kill the chicken and weed out the
bad seed” was somewhat nonsensical. Nevertheless,
unlike our dissenting colleague, we agree with the judge
that that remark was also unlawful. Having been made
in the context of other unfair labor practices, the state-
ment “weed out the bad seed” would reasonably be
viewed as a threat to discipline or discharge employees
who supported the Union.8
Accordingly, unlike our dissenting colleague, we agree
with the judge that all of McCann’s statements in issue
constituted threats to discipline or discharge employees
for engaging in union activities in violation of Section
8(a)(1) of the Act.
3. However, we do not agree with the judge in certain
other respects. We find that the Respondent lawfully
disciplined employees Robert Sheall and Harold Hoff
under the Respondent’s policy against harassment.9
5).
6 Electrical Workers IBEW Local 6 (San Francisco Electrical
Contractors), 318 NLRB 109 (199
7 Frontier Hotel & Casino, 323 NLRB 815, 816 (1997).
8 It is irrelevant that the complaint did not specifically allege this
statement to be unlawful. “It is well settled that the Board may find
and remedy a violation even in the absence of a specific allegation in
the complaint if the issue is closely connected to the subject matter of
the complaint and has been fully litigated.” Pergament United Sales,
296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). Here,
the complaint alleges other violations of Sec. 8(a)(1) occurring during
the Union’s organizational campaign, including threatening employees
with discharge, and the issue was fully litigated. Thus, both parts of the
Pergament test are satisfied, and there is no procedural bar to finding
and remedying this violation of the Act.
9 As indicated in his separate opinion, Member Hurtgen joins
Chairman Truesdale in reversing the judge on this issue. Member
Liebman dissents for the reasons set forth in fn. 14, infra.
332 NLRB No. 55
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
The Respondent issued written warnings for sexual
harassment to Robert Sheall and Harold Hoff. The judge
found that, in both instances, the Respondent violated
Section 8(a)(3) and (1) of the Act. The Respondent con-
cedes that the General Counsel made a convincing show-
ing under Wright Line10 that antiunion considerations
were a motivating factor in the written warnings. How-
ever, the Respondent excepts to the judge’s finding that
the Respondent submitted insufficient evidence to rebut
the General Counsel’s case. The Respondent contends
that both Sheall and Hoff violated the Respondent’s pol-
icy against harassment, which policy prohibits foul lan-
guage.11 We agree.
We note initially that the General Counsel does not
contend that the Respondent’s policy itself is unlawful or
that the Respondent promulgated it for unlawful reasons.
We also note that benefits administrator, Patricia Lackey,
testified that several women complained to her about
Sheall’s “talking obscenely,” and that his “gruff ap-
proach to people” was “intimidating and scaring the
women.” In particular, they were offended by his calling
employees “mother fucking chicken shits” and various
members of management “chicken shit” and “mother
fucking chicken shit.” Lackey also testified that several
women complained to her about Hoff’s “foul language.”
They told her Hoff was “obscene,” that they did not like
to hear what he was saying, that they were “offended,”
and that “they felt threatened by him.” They told Lackey
that they heard Hoff saying “[Y]ou can see who’s got the
fucking balls—they wear the [Union] pins.” Lackey was
not discredited on this point. The words of Sheall and
Hoff clearly violated the “foul language” provision of the
Respondent’s policy against harassment.12 Moreover,
Lackey merely reacted to the employee complaints by
issuing the written warnings to Sheall and Hoff pursuant
to the policy. We believe that the complaints received by
the Respondent warranted action, and we find that it
would have acted in these instances even in the absence

10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
11 The policy states: “foul language . . . may be considered offensive
to another employee and should therefore not occur.” The Respondent
gave a copy of the policy to Sheall at the time the Respondent disci-
plined Sheall. The Respondent did not give a copy to Hoff but he was
disciplined on the same day as Sheall.
12 We recognize that the record shows that the Respondent generally
tolerated profanity and swearing during working hours on the shop
floor. However, there is no showing that employees complained to
management about language similar to that used here, and no showing
that any such complaints were ignored.
of Sheall and Hoff’s union activities.13 Accordingly, we
shall dismiss these two complaint allegations.14
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Fixtures Manufacturing Corporation, Kan-
13 See Simmons Industries, 321 NLRB 228, 241 (1996); Boyertown
Packaging Corp., 303 NLRB 441, 449 (1991).
14 Member Liebman dissents from her colleagues’ reversal of the
judge’s conclusion that the Respondent violated Sec. 8(a)(3) and (1) of
the Act by issuing the written warnings to Sheall and Hoff. Member
Liebman observes that her colleagues do not disturb the judge’s finding
that the General Counsel established that the Respondent’s animus
against the employees’ union activities was a motivating factor in the
decision to discipline them. Unlike her colleagues, Member Liebman
agrees with the judge’s further finding that the Respondent failed to
show that it would have issued warnings to the two employees in the
absence of their union activities.
As emphasized in the judge’s decision, the Respondent’s own policy
and past practice with respect to sexual harassment complaints was to
conduct a thorough investigation, which included giving the alleged
harasser notice of the exact nature of the accusations against him and an
opportunity to respond. In the cases of Sheall and Hoff, however, the
Respondent failed to speak to them during the investigation phase and,
even when it issued the warnings, it still failed to advise them of the
exact nature of the complaints against them. In this connection, the
majority concedes, as it must, that the Respondent never interviewed
Sheall. Although the majority claims that the Respondent “did inter-
view” Hoff, the judge specifically found that at this so-called “inter-
view” the “Respondent did not tell him specifically what he had done
which constituted sexual harassment.” Furthermore, certain of the
alleged conduct in issue cannot reasonably be considered to be “sexual
harassment,” such as Sheall’s statement that management cannot be
trusted and his alleged staring at an employee after giving her an au-
thorization card to sign.
In sum, Member Liebman concludes that the Respondent was not in-
terested in investigating the merits of the sexual harassment complaints,
but, rather, seized on them as a convenient pretext to justify disciplin-
ing two union adherents.
Chairman Truesdale and Member Hurtgen disagree with their dis-
senting colleague’s assertion that certain conduct at issue cannot rea-
sonably be considered to be “sexual harassment.” They note that issues
concerning whether conduct constitutes “sexual harassment” are often
difficult and subtle, and are dependent on surrounding circumstances.
In addition, the issue here is not whether the conduct was in fact sexual
harassment, but rather whether Respondent was sufficiently concerned
that it might be, so that Respondent took the action that it did.
In addition, they note that Respondent’s policy, as testified to and as
unrebutted, was to take prompt remedial action whenever an employee
complained about perceived sexual harassment by another employee.
The fact that Respondent may not have interviewed alleged harasser
Sheall is consistent with this policy. Nor can it be said that any failure
to interview Sheall was discriminatory. In this regard, we note that
Respondent did interview union advocate Hoff (the other alleged ha-
rasser). The Respondent informed Hoff, upon giving him a warning,
that two women had charged him with sexual harassment, including the
use of vulgar language. Hoff responded that “this is a lie. I did not
harass no one.” Thus, Hoff had the opportunity, and used it, to deny
any wrongdoing.
FIXTURES MFG. CORP. 567
sas City, Missouri, its officers, agents, successors, and
assigns shall
1. Cease and desist from
(a) Interrogating its employees about their union ac-
tivities and sympathies and the union activities and sym-
pathies of other employees.
(b) Threatening its employees with discipline and/or
discharge because of their union activities and sympa-
thies.
(c) Announcing a rule that discriminatorily prohibits
union solicitation and the distribution of union materials
during working time.
(d) Announcing a rule that discriminatorily prohibits
the posting of union materials and union literature on the
employee bulletin board at the facility.
(e) Requesting employees to inform Respondent if
they had been subjected to abusive treatment by their
fellow employees who solicit them to sign union authori-
zation cards, and invite and encourage employees to
identify union employees.
(f) Issuing written warnings for insubordination to em-
ployees or otherwise discriminating against any em-
ployee for supporting the Union.
(g) Discharging or otherwise discriminating against
any employee for supporting International Brotherhood
of Teamsters, Local Union No. 41, AFL–CIO, or any
other union.
(h) 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
Penny Sheridan 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.
(b) Make Penny Sheridan whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Penny Sheridan and the unlawful written warning of
George Hulse, and notify Sheridan and Hulse in writing
that this has been done and that the discharge and written
warnings will not be used against them 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 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 facilities in Kansas City, Missouri, copies of the at-
tached notice marked “Appendix.”15 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
immediately on receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent 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
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since April 18, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HURTGEN, dissenting in part.
I do not agree with my colleagues’ adoption of the
judge’s finding that a certain statement, noted below,
made by Acting Plant Manager Thomas McCann consti-
tuted an unlawful threat.1 McCann was overheard by
employee Dennis Evan telling a group of four supervi-
sors that, in order to deal with the Union, “they needed to
verbally kill the chicken and weed out the bad seed.”
McCann’s language is vague. McCann’s statement that
“they needed to verbally kill the chicken and weed out
the bad seed,” is not readily decipherable. Indeed, the
General Counsel did not allege this statement of
McCann’s as a violation in the complaint.2 The judge con-
ceded that McCann’s words were “somewhat nonsensi-
cal.” I find that McCann’s words could not reasonably
be understood as a statement that the Respondent would

15 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 I join Chairman Truesdale in finding that the Respondent lawfully
disciplined employees Robert Sheall and Harold Hoff. In all other
respects, I agree with both of my colleagues.
2 Contrary to the majority argument, I am not suggesting that there is
a procedural bar to the finding of a violation. I am simply noting, as a
matter relating to the merits, the fact that even the General Counsel did
not interpret this ambiguous statement to be unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568
discipline employees for engaging in protected activity.
If the statement was nonsensical to the judge (a reason-
able person), it is difficult to understand how another
reasonable person (e.g., an employee) would read into
the statement the message that employees would be fired
for union activities.
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 question you about your union activi-
ties and sympathies and the union activities and sympa-
thies of other employees.
WE WILL NOT threaten you with discipline and/or
discharge because of your union activities or sympathies.
WE WILL NOT announce a rule that discriminatorily
prohibits union solicitation and the distribution of union
materials during working time.
WE WILL NOT announce a rule that discriminatorily
prohibits the posting of union materials and union litera-
ture on the employee bulletin board at our facilities.
WE WILL NOT request that you inform us if you have
been subjected to abusive treatment by other employees
when they solicit you to sign union authorization cards,
and invite and encourage you to identify union employ-
ees.
WE WILL NOT issue written warnings for insubordi-
nation to employees or otherwise discriminate against
any employee for supporting the Union.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting International Broth-
erhood of Teamsters, Local Union No. 41, AFL–CIO, or
any other union.
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, offer Penny Sheridan full reinstatement to
her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Penny Sheridan whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharge of Penny Sheridan and rescind
and remove from our files any references to the unlawful
written discipline issued to George Hulse and, WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the written disci-
pline and the discharge will not be used against them in
any way.
FIXTURES MANUFACTURING
CORPORATION
Naomi L. Stuart, Esq., for the General Counsel.
Mark G. Flaherty, Esq., Tim Davis, Esq., and Debra Campbell,
Esq, (Sonnenschein, Nath & Rosenthal) (G. David Porter,
Esq. on the brief) and Gary Jones, Director of Human Re-
sources, of Kansas City, Missouri, for the Respondent.
Victor J. Terranella, of Kansas City, Missouri, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
The General Counsel alleges that Fixtures Manufacturing Cor-
poration (Respondent) violated Section 8(a)(1) of the Act by
soliciting employee grievances and promising to improve terms
and conditions of employment if employees refrained from
activity on behalf of International Brotherhood of Teamsters,
Local Union No. 41, AFL–CIO (the Union); interrogating em-
ployees about union activities; threatening employees with
discharge because of union activities; disciminatorily promul-
gating a no solicitation, no distribution rule regarding union
literature; disciminatorily refusing to allow union literature on
the employee bulletin board; and requesting that employees
inform Respondent regarding union activities of other employ-
ees. The General Counsel further alleges violation of Section
8(a)(1) and (3) of the Act by disciplining and discharging em-
ployees because of their union or protected, concerted activi-
ties. This case was tried in Overland Park, Kansas, on October
29 and 30, and November 3, 1997.1
All parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record, including my observation of the demeanor of
the witnesses,2 and after considering the briefs filed by counsel

1 All dates are in 1997 unless otherwise indicated.
2 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
FIXTURES MFG. CORP. 569
for the General Counsel and for Respondent, I make the follow-
ing
FINDINGS OF FACT
I. THE PLEADINGS
The charge in Case 17–CA–19174 was filed by the Union on
May 6, and amended on June 20. The charge in Case 17–CA–
19366 was filed by the Union on September 16. Consolidated
complaint issued October 9 and was amended October 23. The
charge in Case 17–CA–19174 was amended for a second time
on the first day of hearing. Pursuant to this second amended
charge, counsel for the General Counsel moved to amend the
consolidated complaint by adding two additional allegations of
violation of 8(a)(1) discipline of employees based upon their
protected, concerted activity which predated any union activity.
I stated that I would defer ruling on the motion until the close
of the General Counsel’s case. However, through inadvertence,
I did not rule on the motion at that time. This issue will be dis-
cussed infra.
II. JURISDICTION
Respondent, a Missouri corporation, with various places of
business in Kansas City, Missouri, is engaged in manufacturing
and distributing office furniture. During the 12-month period
ending December 31, 1996, Respondent sold and shipped
goods valued in excess of $50,000 directly to points outside the
State of Missouri and purchased and received directly from
points outside the State of Missouri, goods valued in excess of
$50,000. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
III. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that International Brother-
hood of Teamsters, Local Union No. 41, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
IV. ALLEGED UNFAIR LABOR PRACTICES
Jami, Inc. purchased Respondent in January 1996. At the
time of hearing, approximately 75 full-time employees worked
in two production plants. Additional employees of Century
were assigned to production activities as temporary employees.
There is no dispute that the transition from Fixtures to Jami
produced some employee discontent and apprehension.
Due to employee dissatisfaction and prior to the advent of
any union activity, Thomas McCann, Jami’s vice president of
operations,3 began meeting in early March with small groups of
employees to discuss problems they were experiencing due to
Jami’s purchase of Respondent or for other reasons. McCann
held about 12 to 14 meetings prior to late April.
Employees Peggy and Harold Hoff met with the Union on
April 1 to discuss the possibility of unionization. Thereafter the
Union began an organizational campaign targeting Respon-

bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
3 At about this same time, McCann assumed the duties of acting
plant manager for Fixtures.
dent’s production employees. Authorization cards and handbills
were distributed by union representatives beginning April 10.
A. Alleged Interrogation, Threat of Discipline, and Discrimina-
tory Prohibition of Solicitation and Distribution of Union
materials
Robert Sheall signed an authorization card on April 16.
Shortly thereafter, Sheall’s supervisor, Mike Parker, called
Sheall to a meeting with McCann. McCann told Sheall he un-
derstood that Sheall was passing out union literature on com-
pany time. Sheall stated he was distributing union literature on
breaks, lunch time, and off time but denied passing out union
literature on company time. McCann asked why Sheall was
interested in the Union. Sheall responded that Jami had not
produced results in the 15 months since its acquisition of Fix-
tures and he wanted to listen to someone with something to
offer. McCann concluded the meeting by stating that if Sheall
passed out union literature on company time, McCann would
have to deal with it.4
McCann’s question to Sheall regarding why he was inter-
ested in the Union is alleged as unlawful interrogation. Interro-
gation is not, by itself, a per se violation of Section 8(a)(1).
Interrogation is coercive if, under all the circumstances, it rea-
sonably tends to interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights. Emery Worldwide, 309
NLRB 185, 187 (1993). Under the totality of the circumstances,
I find this interrogation violative. Prior to this conversation,
Sheall had been observed by members of management posting
union literature on the bulletin board. However, he had not yet
become an open union advocate. Nevertheless, he was called to
a meeting with his immediate supervisor, Parker, and McCann,
Jami’s vice president of operations, and accused of distributing
literature on company time and warned that this was not al-
lowed. He was then asked why he was interested in the Union.
Under these circumstances, I find the questioning unlawful.
Moreover, McCann’s limitations on solicitation and distribu-
tion during working time were applicable only to union solicita-
tions and distributions. The evidence clearly indicates that
4 Respondent relies on the testimony of McCann claiming that if
McCann is credited, there is no violation. McCann testified that he had
received reports that Sheall was wandering away from his work station
to solicit and distribute union literature. McCann testified that he told
Sheall that he was not authorized to leave his work station during nor-
mal working hours for union business. McCann stated that he did not
discipline Sheall. McCann did not specifically deny questioning Sheall
about the Union nor did he deny telling Sheall he would have to deal
with Sheall if he passed out union literature on company time. Because
both Sheall and McCann agree that McCann told Sheall he was not
authorized to pass out union literature on company time and because
McCann did not specifically deny asking Sheall about his interest in the
Union and telling Sheall he might have to deal with Sheall in the future,
I do not believe there is a credibility conflict to be resolved. Accord-
ingly, I find that McCann questioned Sheall about why he supported the
Union as well as warned him that future actions would be dealt with.
Moreover, to the extent there is a credibility conflict, I find that Sheall’s
rendition of the conversation was more inherently believable. In this
respect, I note further that Parker, Sheall’s supervisor, was also present
during the conversation and did not testify. From Respondent’s failure
to present Parker, I draw an inference that his testimony would not have
been favorable to Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
many other solicitations and distributions were knowingly al-
lowed by Respondent during working time.5 Accordingly, this
rule discriminatorily prohibits only union solicitation and dis-
tribution during working time and is violative of the Act. See,
e.g., Industrial Wire Products, 317 NLRB 190 (1995) (prohibi-
tion on talking about union during work time while allowing
talk about other subjects constitutes disparate treatment and
interferes with Section 7 rights). Finally, McCann’s cautionary
to Sheall that he would have to deal with passing out union
literature on company time in the future constitutes a threat of
discipline or discharge because of Sheall’s union activities. See,
e.g., Williamhouse of California, 317 NLRB 699, 714 (1995)
(telling employee he would be fired for talking about the union
on worktime while allowing discussions about baseball consti-
tutes unlawful threat).
B. Alleged Solicitation of Grievances and Promise to Improve
Conditions if Employees Refrain from Union Activities
McCann held meetings with employees to discuss their prob-
lems beginning in early March and continuing through late
April, after Respondent attained knowledge of union activity.
On April 18, Joan Hill, vice president of human resources for
Jami, spoke to employees stating that Respondent did not want
a union.6 She noted that McCann had met with employees to
discuss transitional issues and commended employees for their
honesty and directness in participating in those meetings. Hill
concluded,

You have clearly let us know that there are problems here that
we need to work on and we will be working on those prob-
lems and you will be hearing from us about those problems in
the immediate future. In the interim, we’re asking you to not
sign these cards until we have a chance to work on some of
the problems that you have brought to our attention.

Although Respondent began its series of meetings with em-
ployees prior to the advent of union activity, after attaining
knowledge of union activity, McCann continued soliciting em-
ployee grievances at further meetings and announced remedies
for some problems.7 Hill told employees they would hear from
Respondent about the problems in the immediate future and
asked that employees refrain from membership or support for

5 For instance, employees testified without contradiction that there
was no rule that prohibited talking while working and that employees
commonly conversed with each other with full knowledge of their
supervisors during working time. Employees also testified without
contradiction that solicitations for Avon products, Girl Scout cookies,
and school candy were made on the shop floor during working time
with supervisory knowledge and distribution of Avon products, cook-
ies, and school candy was permitted on the shop floor during working
time. For instance, Sheall testified he had bought Girl Scout cookies
and tickets to a poker game from Parker during working time. Sheall
had also seen the Avon book routinely kept on Parker’s desk. Employee
Palmer sold home interior goods and flowers during worktime on the
shop floor. She solicited Parker on occasion to buy these products.
6 I credit Hill’s testimony that she read from a prepared text. This is
also consistent with the testimony of General Counsel’s witnesses.
7 McCann’s “post-knowledge” meetings are not alleged as unlawful
solicitations. The complaint alleges only Hill’s comments on April 18
as violative.
the Union until Respondent completed work on the problems. It
is clear that Hill did not solicit grievances during the meeting.
Moreover, she did not specifically promise that any particular
matter would be improved. Generalized expressions requesting
a second chance or asking for more time are permissible cam-
paign propaganda. See Noah’s New York Bagels, 324 NLRB
266 (1997) (in context of unlawful solicitation of grievances,
request to give employer, “a second chance to show what we
can do” not violative); National Micronetics, 277 NLRB 993
(1985).
C. Alleged Interrogation
On Saturday, April 26, an in-house organizing committee
was formed at the first union meeting for Fixtures employees.
George Hulse, Harold Hoff, and Robert Sheall were initial
members of the in-house organizing committee. The Union
faxed a letter to Respondent on that date identifying the mem-
bers of the committee. On Monday, April 28, Parker asked
Sheall how many people attended the union meeting. Sheall
refused to say. This constitutes unlawful interrogation. Al-
though by this time Sheall had been identified as an open union
supporter, this question does not relate to his support for the
Union. Rather, it was an attempt to determine how much inter-
est the initial meeting had drawn. Accordingly, the question is
unlawful.
D. Alleged Threat of Discipline or Discharge
On May 1, employee Dennis Evans overheard McCann tell
Supervisors Hays, Parker, Kirby, and Altis that in order to deal
with the Union, Respondent needed, “to verbally kill the
chicken and weed out the bad seed.” McCann could recall no
such meeting and specifically denied making such a statement
explaining that such an analogy would be totally foreign to him.
I credit Evans.8 Although the statement is somewhat nonsensi-
cal, I believe that Evans truthfully testified to what he heard. I
find that the statement tends to interfere with employee exercise
of Section 7 rights in that it constitutes a threat of discipline or
discharge of employees because of their union activities.
Later that day, eight employees joined union representatives
in handbilling. Employee Penny Sheridan overheard Plant
Manager Jeff Altis state that if the handbillers came on com-
pany property, “they’re dead meat.”9 Handbilling occurred on
May 9, June 12 and 18, and July 7 and 14. Among employees
who participated in handbilling were Harold and Peggy Hoff,
Robert Sheall, Penny and Bill Sheridan,10 and George and
Debra Hulse. No petition for representation had been filed as of
the date of the hearing.
8 Both Evans and McCann were straight forward, believable wit-
nesses. My credibility finding is based on the inherent probability that
an employee, upon hearing such a statement, would remember it accu-
rately as well as the probability that McCann, who had no reason to
know an employee was in the area, would not recall precisely what he
might have said in what he thought was a confidential meeting.
9 This statement is not alleged as a violation of the Act. However, it
is relied upon to show animus toward the Union. I find that the state-
ment does, indeed, indicate animus toward the Union.
10 Bill Sheridan worked as a temporary employee for Century as-
signed to Respondent. He was not currently employed at the time of the
handbilling.
FIXTURES MFG. CORP. 571
E. Alleged Discriminatory Refusal to Allow Union Literature
on Employee Bulletin Board
An employee bulletin board located near the timeclock was
available for posting, “anything from death notices to autos for
sale, furniture, dog give-aways, appliances,” without requesting
permission. It is undisputed that union literature (pro and con)
was routinely removed from the employee bulletin board by
management although employees generally removed notices
which they posted as they became obsolete.
George Hulse, an in-house organizer and open union advo-
cate, attempted to post union literature on a daily basis. Specifi-
cally, he posted numerous copies of a red pamphlet which out-
lined employee rights pursuant to Section 7. Each time a copy
was removed, Hulse posted another copy. On April 29, Hulse
posted a pamphlet during his 1:45 p.m. afternoon break. As-
sembly Manager Mike Parker removed the pamphlet while
Hulse was standing nearby. Hulse asked Parker why he had
removed the pamphlet. Parker stated that he had been told to
remove it by Trish Lackey, human resource director. Another
employee, Donovan Willis, overheard this conversation. Willis
agreed with Hulse that Hulse did not yell or scream during the
conversation.
Hulse and Parker met a few minutes later in Lackey’s office.
Hulse noticed a stack of union pamphlets on Lackey’s desk and
asked why Lackey was taking down the union pamphlets. Al-
though Lackey stated that she wanted to read the material, in
light of the stack of pamphlets, Hulse asked if he didn’t have a
right to place anything on the employee bulletin board. Lackey
agreed that he did. Hulse asked Lackey why she did not replace
the literature when she was finished reading it and Lackey re-
sponded it was not her job. Hulse laughed at this. Hulse ac-
cused Lackey of discrimination. Lackey did not respond and
Hulse left her office.
Hulse denied that he yelled or screamed during this conver-
sation. Lackey described Hulse as yelling on the point of
screaming, stating that Hulse was angry because management
was taking information off the bulletin board and, “he was so
angry, he just turned around and walked out.” According to
Lackey, she discussed the matter with Hill and they agreed a
written warning was appropriate because Hulse was loud and
extremely upset and this had frightened Lackey. Hulse contin-
ued to post union literature for the remainder of the week.

In general, “there is no statutory right of employees or a union
to use an employer’s bulletin board.” However, where an em-
ployer permits its employees to utilize its bulletin boards for
the posting of notices relating to personal items such as social
or religious affairs, sales of personal property, cards, thank
you notes, articles, and cartoons, commercial notices and ad-
vertisements, or, in general, any nonwork related matters, it
may not “validly discriminate against notices of union meet-
ings which employees also posted.” Moreover, in cases such
as these an employer’s motivation, no matter how well meant,
is irrelevant.

Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405
(8th Cir. 1983). Respondent’s removal of the union notices
constitutes discriminatory prohibition of posting of union litera-
ture. It is no defense that both pro and antiunion materials were
removed under Respondent’s policing action of removing “con-
troversial” materials. The removal of “controversial” materials
occurred only upon the advent of union activity and applied
only to materials for and against the Union. Moreover, I find
that the removed literature was not inflammatory or reasonably
likely to create problems which would privilege a disparate
content-based policy. See, e.g., Vons Grocery Co., 320 NLRB
53, 55 (1995), and cases cited therein.
F. Written Warning to Hulse for Insubordination
Just before the end of his shift on May 2, Hulse was called to
a conference room overlooking the production floor. Ed Hays
and Tom McCann gave him a written warning for insubordina-
tion to Parker and Lackey on April 29. He protested that he was
not insubordinate when he spoke to Parker and Lackey on April
29 but signed the written warning in any event. Respondent’s
rules provide for counseling prior to a written warning. How-
ever, counseling was not utilized by Respondent. Hulse was
also told that he would be terminated immediately if the offense
occurred again. Hulse had not received any discipline for at
least the last 5 years. According to Lackey, Hulse used a loud,
abusive voice when questioning her about removal of union
pamphlets from the employee bulletin board and he was obvi-
ously mad and stormed out of her office. Lackey considered
this an act of insubordination.
In 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,
399–403 (1983), the Board articulated the allocation and order
of proof in cases involving 8(a)(1) or (3) violations which turn
on employer motivation as follows: First, the General Counsel
must make a prima facie showing sufficient to support an infer-
ence that protected activity was a motivating factor in the em-
ployer’s decision. Upon making such a showing, the burden
shifts to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
activity.
In Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996),
the Board stated that it had traditionally described the General
Counsel’s burden as that of establishing a prima facie case.
Noting, however, that in Southwest Merchandising Corp. v.
NLRB, 53 F.3d 1334, 1340 fn. 8 (1995), the court suggested
that the General Counsel’s burden might be more appropriately
described as a burden of persuasion, the Board concluded that
the change did not represent a substantive change in Wright
Line and restated that test as follows: “the General Counsel
[must first] persuade that antiunion sentiment was a substantial
or motivating factor in the challenged employer decision. The
burden of persuasion then shifts to the employer to prove its
affirmative defense that it would have taken the same action
even if the employees had not engaged in protected activity.”
Hulse’s union sympathies were well known to Respondent
and Respondent exhibited animus toward these sympathies.
Moreover, although the alleged insubordination occurred on
April 29, it was not until the day after the first employee hand-
billing on May 1, that Hulse and two other handbillers were
disciplined for events which occurred before the handbilling.
Hulse had no prior disciplinary actions for a 5-year period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
Based upon these facts, I find General Counsel has established
that Hulse’s written warning was motivated by antiunion sen-
timent.
Turning to Respondent’s evidence, I find that is has not es-
tablished that the same action would have been taken absent the
union activities of Hulse and others. Specifically, I do not credit
Lackey’s conclusory descriptions of Hulse: he used a loud,
abusive voice when he asked why she was removing union
literature from the bulletin board, he was obviously mad that
she was removing union literature from the bulletin board, and
stormed out of her office when she provided no response to his
questioning about removal of union literature. Hulse denied
using a loud or abusive voice. I credit his denial. Moreover,
Parker, who was also present in Lackey’s office on April 29,
did not testify at all regarding the alleged insubordination. This
absence warrants an inference that his testimony would not
have been favorable to the Respondent. On the other hand,
Donovan Willis, who overheard the initial confrontation be-
tween Parker and Hulse, testified that Hulse did not raise his
voice. Respondent provided no explanation for the lack of im-
mediate discipline nor for the failure to utilize the progressive
disciplinary action of counseling prior to a written warning.
Accordingly, I find that Hulse would not have been disciplined
in the absence of his activities and support of the Union.11
G. Warnings to Hoff and Sheall
In addition, open union advocate Sheall was called into the
conference room at the end of his shift on May 2. Sheall was
given a written warning for sexual harassment due to use of
vulgar vocabulary along with a copy of a previously unpub-
lished sexual harassment policy. Sheall asked to speak with his
accusers and was told he had no right to speak to his accusers
and the matter had been fully investigated (although this was
the first time he had been contacted), the decision was final,
and if further complaints were received, he would be termi-
nated. He was not informed of the specific nature of the com-
plaints against him.
The employees who were allegedly harassed did not testify
in this proceeding. Respondent did not confront Sheall with the
specifics of the complaints. Respondent’s memoranda support-
ing this discipline indicate that a manager reported on April 29
that Sheall said she could not be trusted because she was man-
agement; that an employee reported to Lackey that Sheall gave
her an authorization card on May 1 and later stared at her mak-
ing her feel unnerved; and that another employee reported that
she overheard Sheall on May 2 describe various members of
management as a “chicken shit” and a “mother fucking chicken
shit.” Nevertheless, Respondent concedes that profanity was
used in the presence of supervisors on the shop floor. Sheall
was promoted from key person to lead person in July.
Sheall’s union activities were well known to management
and the animosity toward union activities, as mentioned above,

11 Respondent’s records reflect that in November 1996 an employee
was counseled for failure to follow instructions and loud, abusive lan-
guage. No further specifics were provided. Respondent has failed to
explain why counseling was appropriate in one instance while a written
warning was appropriate in another. This constitutes further evidence
that Hulse’s union activity was a motivating factor.
is replete in the record. The timing of the written warning, on
the day following the first handbilling, gives rise to an infer-
ence that union activity was a factor in the decision. Accord-
ingly, I find that General Counsel has established the Sheall’s
union activities were motivated by antiunion animus.
I further find that Respondent has not established that it
would have taken the same action in the absence of Sheall’s
union activities. Sheall’s statements that management could not
be trusted and his staring at an employee after giving her a
union authorization card to sign hardly rise to the level of sex-
ual harassment but do, indeed, evidence strong support for the
Union. Moreover, management had frequently allowed use of
profanity on the shop floor. Use of the words, “chicken shit”
and “mother fucking chicken shit” was not uncommon. Finally,
Respondent’s “Policy Against Harassment” states that com-
plaints will be investigated thoroughly and promptly and only if
harassment is established will the harasser be disciplined. Re-
spondent has disciplined other employees for sexual harass-
ment. For instance, an employee was counseled and then dis-
charged for making sexual advances to a coworker and another
employee was counseled for playing a practical joke involving
assertions that he loved a fellow employee.12 In both instances,
the employee was confronted with the exact nature of the alle-
gations against him and given an opportunity to respond. I note
that Sheall was never contacted in the course of a thorough
investigation and infer from this that a decision was made
without a thorough investigation. Respondent has failed to
show that Sheall would have received a written warning regard-
less of his union activity.13 Accordingly, I find the warning
violative of the Act.
Also written up for sexual harassment on May 2 was open
union advocate Harold Hoff. Both Parker and Hays were pre-
sent to present this warning. Hays told Hoff he was brought to
the office because two women claimed sexual harassment. Hoff
exclaimed, “[T]his is a lie. I did not harass no one.” Hoff asked
for an explanation and was told that the women complained
because they had overheard him use vulgar language. Hulse
12 Respondent’s records reflect that an employee was confronted in
October 1995 regarding complaints of sexual harassment and counseled
about creating a hostile working environment. The employee denied the
complaints. The same employee received a written warning and a 3-day
suspension in February and March 1996 for insubordination and a poor
attitude, respectively. In November 1996, the employee was terminated
for sexually harassing a coworker by pursuing her romantically and
telling her she had a nice ass and it was good that she wore shorts be-
cause this provided easier access. The employee was once again con-
fronted with specific evidence and denied the events. Another em-
ployee was counseled in August for creating a hostile working envi-
ronment due to comments made to a Century employee. This employee
was specifically aware of the offending behavior and admitted it.
13 Sheall was accused of making a racial or ethnic slur in 1994, prior
to Jami’s acquisition of Fixtures. The records reflect that Sheall was
warned that Fixtures would not condone such comments and that fur-
ther such comments could result in severe disciplinary action. Respon-
dent relies on this episode arguing that Sheall should be discredited. I
found Sheall to be a strong, credible witness and I do not discredit him
based upon a 1994 warning from a former employer. Further, such a
warning hardly constitutes proof of a tendency to utter racial slurs,
much less to create a hostile working environment.
FIXTURES MFG. CORP. 573
was warned to watch his language around other employees and
warned that future complaints would result in termination.
Lackey testified that several employees had reported to her that
Hoff made statements such as, “you can see who’s got the fuck-
ing balls—they wear the [Union] pins.” Lackey discussed this
with Hill and they determined a written warning was appropri-
ate.
As with Hulse and Sheall, Hoff’s union sympathies were
well known and Respondent’s animus toward union activities,
replete in the record. As in the case of Sheall, the timing of
Hoff’s warning supports an inference of unlawful motivation.
Accordingly, I find the General Counsel has established that
Hoff’s warning was motivated by antiunion sentiment. More-
over, I find that Respondent has not established that it would
have taken the same action absent Hoff’s union activities. Re-
spondent did not present actual witnesses to the alleged har-
assment. Although Hoff could not recall making the alleged
statements, he did not deny that he could have made them. If,
indeed the statements were made, it is clear from the underlying
memoranda that the witnesses overheard the statements but
were not directly involved in a conversation with Hoff. When
Hoff received the written discipline, Respondent did not tell
him specifically what he had done which constituted sexual
harassment. The underlying memoranda reflect that what Hoff
did was speak profanely in favor of unionization. As profanity
was tolerated by management, I find that Hoff would not have
been disciplined in the absence of his union activity.
H. Alleged Unlawful Written Discipline of Hoff and Tom
Peterson
On March 7 prior to the advent of any union activity, em-
ployees Harold Hoff and Don Peterson received counseling
notices for, “comments on the floor.” The written counseling
form indicated there had probably been a misunderstanding and
Hoff was moved to a different press to correct the problem.
Hoff was not given a copy of the policy against harassment at
that time.
On cross-examination, Hoff was asked if the counseling re-
sulted from his saying, “[T]his fucking company is full of bull-
shit.” Hoff did not recall making such a statement and did not
know if such a statement was the basis for the counseling no-
tice. Pursuant to the second amended charge in Case 17–CA–
19174, counsel for the General Counsel sought to amend the
consolidated complaint to include an allegation that the March
7 counseling violated Section 8(a)(1). Respondent opposed,
noting that the Region had been fully apprised of the underly-
ing facts long before the hearing and had waited until the day of
hearing to seek amendment. Moreover, Respondent argued that
the allegations were totally unrelated to other allegations in the
complaint.
Because I did not rule on General Counsel’s motion at the
hearing, the determinative issue at this point is whether the new
allegations are closely connected to the subject matter con-
tained in the complaint and were fully litigated. Hi-Tech Cable
Corp., 318 NLRB 280 (1995). I find that neither criteria is sat-
isfied. The consolidated complaint focuses solely on an orga-
nizing campaign that began in April. There is no showing that
Hoff’s counseling was related to any union activity or that the
counseling was aimed at dissatisfaction on Hoff’s part which
caused him to later support the Union. Moreover, although
Respondent cross examined witnesses presented by the General
Counsel regarding the March 7 discipline, it did not present
witnesses to rebut their testimony.
In any event, were the proposed amendment closely con-
nected and fully litigated, I would nevertheless find no viola-
tion. There is no credible evidence that Hoff and Peterson were
counseled on March 7 due to protected, concerted activity.14
Hoff does not remember what he said which led to the counsel-
ing. Peterson and Hays did not testify. Accordingly, even were
the amendment allowed, I would find that the General Counsel
has failed to show that Hoff engaged in protected, concerted
activity.
I. Alleged Request that Employees Inform Respondent of
Union Harassment
On May 5, McCann spoke to groups of employees. These
were the first meetings designed to respond to issues raised by
employees at prior meetings. McCann acknowledged that Re-
spondent was removing union literature from the employee
bulletin board stating Fixtures did not need a union and the
information was unnecessary. At another meeting, McCann
stated that union literature was trash and would be placed in the
trash can.15 McCann suggested that intimidation and pressure
were standard union techniques and told employees if they
were being harassed, whether by union in-house organizers or
not, they should report it to their supervisor or the director of
human resources or to McCann and, “he would handle it.”
McCann refused to define “harassment” when asked for an
explanation.
Because McCann’s request was broad enough to include
lawful solicitation and distribution of union materials both dur-
ing working and nonworking time, at the plant or away from
the plant, it constituted an open invitation to employees to iden-

14 Neither Hays, the supervisor involved, nor Peterson testified re-
garding this incident. Peterson’s counseling form is in evidence but
offers no further elucidation regarding the nature of the comments
which led to the counseling. A memorandum prepared on June 9 by
Hays indicates that he issued the counseling forms to Hoff and Peterson
because Hoff made comments such as, “Ed [Hays] showed favoritism
and the fucking company is full of bullshit;” “I work my ass off and get
paid peanuts,” and similar remarks and Peterson would agree with him
saying, “[Y]eah, it is bullshit.” This memorandum was not prepared
until 3 months after the incident in question and 1 month after Hoff
received a written warning for sexual harassment. Given that it was
prepared long after the events in question, it is at odds with Hays’ con-
temporaneous counseling forms which indicated he had to separate the
employees due to a misunderstanding between them, and Hoff could
not recall making the statements, I do not credit the version of the
events set forth in the memorandum. Moreover, even were I to find that
Hoff made these statements and Peterson agreed with them, I would
find no protected activity but, rather, mere griping.
15 One employee recalled that McCann told employees that in the fu-
ture they would need supervisory permission to post anything on the
employee bulletin board. This statement is alleged as an unlawful an-
nouncement of a rule regarding the bulletin board. I do not credit the
employee’s recollection of McCann’s speech. All other witnesses,
employee and management, were in total agreement that no such rule
existed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
tify union employees to management in the loose context of
any subjectively objectionable conduct. Such a request tends to
interfere with employee rights under the Act. See, by analogy,
Clifton Plastics, 262 NLRB 1329 (1982) (directing a second
election under similar conditions); Bil-Mar Foods, 255 NLRB
1254 (1981) (directing a second election due to employer re-
quest that employees let it know if they were harassed, coerced,
pressured, or threatened in any way by union agents or push-
ers).
J. Discharge of Penny Sheridan
On July 31, Penny Sheridan told Plant Manager Moreno as
he was walking away from her that she did not believe he was
being fair and she was giving 2 weeks’ notice. Moreno kept
walking without acknowledging Sheridan. Sheridan was upset
at the time because Respondent would not rehire her husband,
William Sheridan, who worked as a temporary employee until
early 1997 when he walked out, thus voluntarily resigning.
Sheridan never submitted a written resignation. Her lead per-
son, Sheall, told her that if she had not put the resignation in
writing it was ineffective. On August 5, the Union identified
Penny Sheridan as a member of the in-house organizing com-
mittee. However, Sheridan had begun wearing a union button
everyday to work in late May or early June and a union T-shirt
at least once a week and had participated in hand billing as
well. Sheridan’s supervisor never spoke to Sheridan about her
comment to Moreno and no replacement was trained to perform
her work. There is no dispute that Sheridan’s work was accept-
able. In fact, at a later time, Moreno offered to help Sheridan
and her husband find work elsewhere.
On August 15, after expiration of the 2-week period, Moreno
and Jones ascertained from other members of management that
Sheridan had not communicated to anyone an intent to change
her mind about resigning. However, they did not ask Sheridan
what her intentions were, despite the fact that she was at work
15 days following oral 2-week notice of resignation. Jones
explained that it might have colored Respondent’s decision if
Sheridan had communicated a change of heart but it did not
seem appropriate to ask her directly. Sheridan was called to a
meeting with Lackey and Human Resource Manager Gary
Jones. Jones read a memorandum from Moreno regarding his
July 31 conversation with Sheridan in which she gave 2 weeks’
notice. Sheridan explained to Jones that she was upset when she
spoke to Moreno and had no intention of quitting. Jones said he
was going to adhere to the two weeks’ notice and Sheridan said
she was not quitting. Jones stated that if she did not quit, she
was fired.16
Sheridan returned and spoke with Jones on Monday, August
18. She asked why Respondent had waited 15 days before hon-
oring the 2-week notice. Jones did not respond. Sheridan was
given a written explanation of her separation from the Com-
pany which she had requested. However, when she read it, she
found it stated that she had resigned. The following day, she
spoke with General Manager Jim Johnson at Respondent’s

16 The testimony of Lackey, Jones, and Sheridan is in substantial
agreement regarding this conversation.
headquarters. However, he decided to adhere to the decision of
Jones.
Under similar circumstances, at least two other employees
were required to submit written notices of resignation. One of
these employees, Lola Palmer, told Parker, “[Y]ou have my 2-
week notice.” Parker told her to put it in writing. She left a
written notice on his desk the following morning. Parker spoke
to her later that day telling her she could change her mind and
stay if she wanted. On a prior occasion, Palmer told Parker she
was tired of problems at work and she was about ready to give
her 2-weeks notice. Parker walked away and Palmer continued
to work for another month. No one mentioned her failure to
leave 2 weeks later.
Employee Angela Eiken submitted a verbal 2-week notice to
her supervisor. He accepted it but later told her she needed to
put it in writing and submit it to Ed Hays. She complied and
quit as scheduled two weeks later. Sheall also told his supervi-
sor he was quitting on two separate occasions and left work 10
to 15 minutes before his shift ended because he was angry. On
both occasions, he reported to work the following day and noth-
ing further was said. The other employee, Delores Harris, told
Mike Parker in the spring of 1996 that she was giving 2 weeks’
notice. Parker told her if she was serious she should put it in
writing.
I find that Sheridan’s verbal notice of resignation would not
have been accepted by Respondent in the absence of her union
activity. Sheridan was an open union advocate. Her verbal no-
tice of resignation was given in a moment of frustration. There-
after, Respondent was informed that she had become a member
of the Union’s in-house organizing committee. Her “resigna-
tion” was accepted 15 days after the fact over her protest that
she did not want to resign and despite the fact that no replace-
ment had been hired. Based upon these facts, I find that General
Counsel has established that Sheridan’s union activity was a
motivating factor in Respondent’s decision.
Respondent has not established that it would have taken the
same action absent Sheridan’s union activity. Respondent had
treated other employees differently in the past by requiring that
they submit written notices of resignation and by allowing them
to change their minds and withdraw their resignations. Based
upon this evidence, I find that Sheridan’s resignation would not
have been accepted in the absence of her union activity. In
addition, I find Respondent’s unwillingness to consider her for
rehire was similarly motivated.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Specifically, Respondent must offer Penny Sheridan rein-
statement and make her whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]