Gilliam Candy Co., Inc.

National Labor Relations Board - Board Decisions

Jan 5, 1987

282 N.L.R.B. 624 (N.L.R.B. 1987)

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gilliam Candy Company, Inc. and Bakery, Confec-
tionery & Tobacco Workers International
Union of America , Local No. 199, AFL-CIO.
Cases 9-CA-17585-1 and 9-CA-17650-1
5 January 1987
DECISION AND ORDER
By CHAIRMAN DoTsoN AND MEMBERS
JOHANSEN AND CRACRAFT
On 29 March 1983 Administrative Law Judge
Karl H. Buschmann issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed 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, I and
conclusions2 and to adopt the recommended
Order.
The judge found, inter alia, that the Respondent
unlawfully denied Union Business Agent Lawrence
Simmons access to the Respondent 's facility on
three separate occasions between 9 and 12 October
1981 .$ For the reasons discussed below , we agree
with the judge.
A. Facts
The parties' collective-bargaining agreement con-
tains the following clause:
The business representative of the union will
be permitted to enter the plant on business at
any time during working hours upon first pre-
senting himself to person in charge.
In early October, evening shift employee Ruth
Adams circulated a decertification petition . During
the afternoon of 9 October, Union Business Agent
Simmons was advised by the International Union's
president that a decertification petition was being
3 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In affirming the judge 's conclusion that the Respondent created the
impression among employees that their union activities were under sur-
veillance by the Respondent , we note particularly the credited testimony
that the Respondent 's president and vice president came out of the plant,
walked towards a gathering of several employees and Union Business
Agent Simmons in the company parking lot , pointed at the group, and
appeared to be writing on a pad of paper . In light of this evidence, we
find it unnecessary to pass on the judge 's discussion of whether a viola-
tion could also have been found based on the discredited testimony of the
Respondent's witnesses.
8 All dates are 1981.
circulated at the Respondent 's plant. Simmons was
asked to go to the plant to investigate the situation.
Simmons, accompanied by an International rep-
resentative who was in the area on other business,
arrived at the plant at approximately 9 p.m. They,
were admitted to the plant by Ruth Adams (who
thought Simmons and the International representa-
tive were the plant cleanup crew). According to
the testimony of Ruth Adams, Simmons asked her,
"What do you think you're doing? Who are you
coming in here and tearing down everything I
have built up?" Simmons then asked Adams if she
was "passing a petition around ." Adams acknowl-
edged that she was, and asserted that she had a
right to do so and to attempt to get the Union
voted out. Simmons replied that she did not have
that right. Adams became upset, and told Simmons
to get permission from the evening shift supervisor
before speaking further with her. Simmons told
Adams he would do so immediately. Simmons and
Adams had no further conversation that evening.4
Ruth Adams called Supervisor Jean Adams (dis-
tantly related by marriage) at home, and told her
that Simmons had just "jumped"5 her and that
Ruth needed Jean at the plant. When Jean arrived,
she went to where Simmons was talking with the
evening shift supervisor. She called the supervisor
to her, and asked him, privately, what Simmons
was doing in the plant. The supervisor replied that
he did not know, that he was not aware that Sim-
mons had "jumped" Ruth Adams, and that he did
not want Simmons to remain in the plant.
Jean Adams then asked Simmons what he was
doing in the plant. Simmons replied that he had "a
right." Jean Adams told Simmons that she did not
want to question or argue his rights with him, but
that she would "like for him to leave." Simmons
asked Adams whether she was "demanding" that
he leave. She told him that she was "asking" him
to leave, and that she would apologize to him on
Monday (the next workday for Adams) if she was
wrong in asking him to leave , but that "Right now
I want you to leave." Simmons then left.
Following Simmons' departure from the plant,
Jean Adams asked Ruth Adams what had hap-
pened, whereupon Ruth recounted her version of
her earlier confrontation with Simmons. The fol-
lowing morning, 10 October, Jean Adams told the
fl Ruth Adams' testimony about this incident was corroborated in all
material respects by the testimony of Simmons . Although the judge noted
that Ruth Adams' account differed from Simmons ', he ultimately found
that Simmons presented no physical threat, exhibited no violent conduct,
and used no obscene or abusive language.
5 Jean Adams testified that the term "jumped" in this context was an
expression peculiar to the local area, and means "a fairly aggressive way
of talking to someone else."
282 NLRB No. 89
GILLIAM CANDY CO. 625
Respondent's vice president, Brooke, about the pre-
vious evening's incident.
Also on the morning of 10 October, Simmons re-
turned to the plant and asked Brooke for permis-
sion to go inside to speak with the employees.
Brooke refused to let Simmons into the plant, and
told Simmons that he was "a disruption and a dis-
traction to the employees during working hours"
(Brooke's testimony). Brooke suggested that Sim-
mons return during the lunchbreak, at which time
he would then be permitted to speak with the em-
ployees. Simmons left, and returned later that
morning, about 10 minutes before the start of the
lunchbreak, at which time he was admitted to the
plant.
Finally, on 12 October Simmons returned to the
plant to serve Ruth Adams with a copy of a union
charge against her.6 The Respondent 's president,
Pope, refused to permit Simmons to enter the
plant. Pope testified that the reason he refused to
admit Simmons into the plant was because:
I had been made aware of what I termed a bi-
zarre occurrence [on 9 October] ... that
[Simmons] and an unknown accomplice had
pounded on the door or rang the buzzer and
entered my [Company's premises] and harassed
one of my employees without permission in
advance . ... I think basically I was angry
for that occurrence and that is .the only reason
I think I denied him entry.
As Pope escorted Simmons out of the plant, he
told Simmons that he felt that Simmons' conduct
on 9 October was a "despicable, unmanly act" and
warned Simmons not to "break into [Pope 's] build-
ing again without permission."7
B. Analysis and Conclusion
As indicated, the judge found that in all three in-
stances discussed above, Simmons sought admission
to the plant in accordance with the access clause of
the collective-bargaining agreement, and that Sim-
mons' activities, while not routine union business,
were union related and were within the scope of
e The union charge , dated 12 October and signed by Simmons, alleges
that Ruth Adams violated certain specified sections of both the Interna-
tional constitution and the Local bylaws. Although the charge itself does
not set forth the contents of the sections that Adams is alleged to have
violated , and neither the constitution nor the bylaws are in evidence,
Simmons testified that he told Ruth Adams on 9 October that he was
going to file charges against her for circulating the decertification peti-
tion.
' On cross-examination , Pope testified that his reason for not letting
Simmons into the plant was because he was concerned that Simmons
would harass Ruth Adams, as well as the fact that he was "unaware of
any legalities on what he was trying to serve her ... I certainly wasn't
going to give him carte blanche to go in and serve some land of inter-
union [sic] papers without at least getting some information about what it
was all about."
thatclause. Thus, the judge concluded that the Re-
spondent's denial of access to the plant was unlaw-
ful. We agree.
The collective-bargaining agreement provides
that the Union's business representative will be per-
mitted to enter the plant on business at, any time
during working hours on first presenting himself to
the person in charge. The evidence establishes that
all three of Simmons' visits in question were made
during working hours, and that except for the ini-
tial visit on 9 October Simmons first presented him-
self to the person in charge on entering the plant.
(As, it happened, on 9 October Simmons was admit-
ted to the plant by Ruth Adams, the very person
he had come to see. Immediately following this co-
incidental meeting with Ruth Adams, Simmons
went in search of the person in charge of the
evening shift.)
The only question of contractual compliance re-
maining in this context is whether Simmons `sought
to enter the plant "on business" on each occasion
when he was denied entry. On 9 October, Simmons
was instructed by the International president to go
to the plant to investigate the circumstances sur-
rounding the reported circulation of a decertifica-
tion- petition. The following morning, 10 October,
Simmons came to the plant to talk to some employ-
ees. Finally, on 12 October, Simmons came to the
plant to serve internal union charges on Ruth
Adams, accusing her of violating the International
constitution and the Local bylaws by filing a de-
certification petition. We find that Simmons' rea-
sons for seeking to enter the plant meet .the broad
contractual requirement that he be permitted such
entry when "on business."
Clearly, a union is engaged in legitimate business
when it attempts to learn the reasons for and extent
of employee efforts to get rid of that union; when
it attempts to speak to employees in the workplace;
and when it attempts to inform a member personal-
ly that union charges have been filed against her.8
8 We find no basis for our dissenting colleague 's contention that the
Respondent's actions were justified on the grounds that the union repre-
sentative's purpose in seeking entry to the plant was illegitimate . Specifi-
cally, there is no support in the record for the Chairman's characteriza-
tion of Simmons' statements to Adams as "threats ." Transport Workers
Local 514 (Kathe, Nichol & Wolfe), 249 NLRB 1171 (1980), is clearly dis-
tinguishable. In that case, the sole issue was whether the union represent-
ative acted unlawfully in announcing at a 200 -member union meeting that
the union would "get even" with dissident members by bringing charges
and assessing fines against the supporters of a decertification effort. ' Be-
cause it is an unfair labor practice for a union to fine a member for seek-
ing to decertify a union , the Board found that the threat to impose such a
fine was equally unlawful . In the instant case, unlike Transport Workers,
there is no threat to fine the Charging Party for her support of the decer-
tification effort. Indeed, there is no threat by the Union to engage in any
unlawful activity. Although a union may not fine a member for initiating
or supporting a decertification effort , a union may legitimately impose
other discipline , such as expulsion, on such dissident members. See, e.g.,
Continued
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The collective-bargaining agreement does not re-
strict or otherwise- qualify the scope of the term
"on business" for purposes of granting -access to
the plant to a union representative.
Moreover, we note that in none of the three in-
stances discussed above did the Respondent offi-
cials involved attempt to justify their denial of
access to Simmons on the grounds that he was not
involved in legitimate union business in seeking
entry to the plant. Thus, in asking Simmons to
leave the plant on 9 October Supervisor Jean
Adams told Simmons that she did not want to
question or argue his asserted contractual right of
access to the plant, but that she would simply "like
for him to leave" and that she would apologize to
him later if she was wrong in asking him to leave.
Similarly, the next morning, Vice President
Brooke's refusal to permit Simmons to enter the
plant to speak with employees was not because
such a purpose was beyond the scope of contrac-
tually permitted union "business," but was instead
because, in Brooke's view, Simmons was "a disrup-
tion and a distraction to the employees during
working hours." However, the collective-bargain-
ing agreement expressly permits the union repre-
sentative to enter the plant "on business [an aspect
not contested by Brooke] at any time during work-
ing hours" (emphasis added). Brooke refused to
permit Simmons to speak with employees during
working hours. Finally in this context, President
Pope's refusal to- permit Simmons to enter the plant
to serve Ruth Adams with a copy of the intraunion
charge against her was not because such a purpose
was beyond the scope of contractually permitted
union "business," but was instead' because, in
Pope's words, "basically I was angry [about the 9
October incident involving Simmons] and that is
the only reason I think I denied him entry."9
Thus, it is clear that on all three occasions, Sim-
mons sought entry to the plant for reasons within
the scope of the "on business" standard for such
entry set forth in the collective-bargaining agree-
ment, and on all three occasions Simmons was
Marble Polishers Local 89 (Bybee Stone Co.), 265 NLRB 496 (1982); Tawas
Tube Products, 151 NLRB 46 (1965). Simmons' assertion to Adams that
he planned to file intraunion charges against her is not inconsistent with
an attempt on Simmons' part legitimately to have Adams expelled from
the Union for her role in the decertification effort. Thus, unlike in Trans-
port Workers, and contrary to our dissenting colleague, there is no evi-
dence of any illegitimate purpose on the part of Union Representative
Simmons in seeking access to the plant.
9 As seen, Pope also later testified that he denied Simmons access to
the plant because he was concerned that Simmons would harass Ruth
Adams and because he felt he did not have enough information about the
intraunion charges that Simmons wished to serve on Adams. There is no
evidence that Simmons refused to give, or that Pope even asked for, in-
formation about these charges.
denied such entry for invalid reasons . a ° Accord-
ingly, we agree with the judge that the'Respondent
has violated the Act as alleged by refusing to grant
the employees' collective-bargaining representative
access to the plant in accordance with the applica-
ble provisions of the parties' collective-bargaining
agreement. I i
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Gilliam
Candy Company, Inc., Paducah, Kentucky, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
CHAIRMAN DoTsoN , dissenting in part.
I do not agree with the majority or with the ad-
ministrative law judge's determination that the Re-
spondent violated Section 8(a)(1) of the Act by de-
nying the union business agent access to the plant.
Assuming the mandatory nature of the access
rights, I would not view the limited infringement
on these access rights on the evening of 9 October
or the next morning to amount to the "substantial
and significant change" required under Peerless
Food Products, 236 NLRB 161 (1978). Indeed, the
short series of events in question here were appar-
ently the only instances when a union representa-
tive had ever been in any way hindered in gaining
access to the Respondent 's plant. Moreover, in the
initial incident on 9 October, the union representa-
10 Subsequent to issuance of the judge's decision in this case, the
Board issued its decision in Holyoke Water Power Co., 273 NLRB 1369
(1985), setting forth standards for union access to an employer's. premises
for the purpose of obtaining information. Inasmuch as the instant case
does not involve a request for access to obtain information, we find that
Holyoke is not controlling here.
11 We are not persuaded to a contrary result by, our dissenting col-
league. The Chairman's reliance on Peerless Food Products, 236 NLRB
161 (1978), is misplaced, as that case is both legally and factually distinct
from the instant case. In Peerless, there was no contract provision govern-
ing union access. The complaint alleged that the employer violated Sec,
8(aX5) of the Act by unilaterally imposing on a union representative cer-
tain limitations on what had formerly been his virtually unlimited m-plant
access to employees . The Board first stated that actual or perceived valid
business needs do not relieve employers of their statutory obligation to
bargain about the right of a union representative to have in-plant access
to employees for the purpose of investigating and processing grievances.
The Board concluded, however, under the circumstances of that case,
that the employer 's unilaterally unposed limitations on the previously un-
limited access of the union representative to the plant were not "material,
substantial and ... significant," and thus did not constitute an unlawful
breach of the bargaining obligation. Indeed, the Board found that there
was no showing that the new limitations on in-plant access even applied
to the participation of the union representative in the grievance proce-
dure.
In contrast, here there is no factual question of the relative inconven-
ience imposed on a union representative. The factual setting here presents
an absolute exclusion of the Union from the plant-by any standards a
"material, substantial and ... significant" limitation, particularly in light
of the Respondent's contractual waiver, and in any event far more severe
than a "limited infringement," as characterized by the Chairman.
GILLIAM CANDY CO.
tives did not comply with the simple requirement,
contained in the parties' collective -bargaining
agreement, that they first present themselves to the
person in charge of the facility before attempting to,
conduct any business with the employees . Instead,
Union Representative Simmons launched immedi-
ately into a tirade against employee Ruth Adams,
who had the misfortune of answering the door for
the union representatives . There is little wonder,
then, and good reason , that Supervisor Jean Adams
properly--and judiciously-moved quickly to quiet
the disturbance created by the union representa-
tives, by asking them to leave the plant. That Sim-
mons and his companion cooperated at that point
by leaving does not serve to legitimize , excuse, or
mitigate Simmons' earlier failure to follow the
straightforward plant access procedures set forth in
the collective-bargaining agreement-which failure
contributed in no small measure to the unfortunate
scene on Friday night.
The following morning , the Respondent's vice
president quite reasonably (in light of the events of
the previous night) suggested to Simmons that he
delay his visit to the plant by a couple of hours,
until the lunchbreak . Simmons left without further
ado, returned 10 minutes before lunchtime, and was
immediately admitted to the plant.
Additionally , and notwithstanding the imprecise
language in the contractual access clause ("on busi-
ness"), there is an implicit requirement that the
purpose of the clause must at least be a legitimate
one. Simmons' actions and purpose on both 9 and
12 October , in threatening Adams for engaging in
protected activity do not in my view meet that
standard , even tinder the administrative law judge's
facts . See Transport Workers, 249 NLRB 1171
(1980). Therefore, I would find that the reasoning
of the judge in finding a violation is not logically
or legally supportable and that his reliance on
Campo Slacks, 250 NLRB 420 (1980), is misplaced.
The access attempts in Campo were inextricably
intertwined with the union 's attempts to secure in-
formation (requests for - which had already been
denied by respondent) in order to administer the
contract and process , grievances. No similar legiti-
mate purpose appears to have been shown here.
Thus, under all , the circumstances-the limited
nature and duration of the interference with Sim-
mons' access to the plant; the failure ' of Simmons to
comply with contractual requirements in one in-
stance; and the very questionable inclusion of Sim-
mons' activity here within the scope of the "on
business" standard for access to the plant (which at
most raises only a question of contract interpreta-
tion)-I find that the Act has not been violated as
627
alleged in this regard, and I would dismiss this
aspect of the complaint.
David L. Ness, Esq., for the General Counsel.
Jon D. Goldman, Esq. (Fine, Hatfield, Sparrenberger &
Fine), of Evansville, Indiana, for the Respondent.
Lawrence Simmons, of Paducah, Kentucky, for the
Union.
DECISION
STATEMENT OF THE CASE
KARL H. BuscHMANN, Administrative Law Judge.
This case arose on charges filed by Lawrence Simmons,
business agent for the Bakery, Confectionery & Tobacco
Workers International Union of America, Local No. 199,
AFL-CIO, on October 22 and November'9, 23, and 24,
1981. The consolidated complaint, dated December 16,
1981, alleges that Respondent, Gilliam Candy Company,
Inc., violated Section 8(a)(1)' and (3) of the National
Labor Relations Act. Respondent in its answer, as
amended, admitted the jurisdictional and supervisory al-
legations , in the complaint, but it denied the commission
of any unfair labor practices.
A hearing was held on September 7 and 8, 1982. Both
parties filed briefs by October 21, 1982. Based on the
entire record in this case , I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent , Gilliam Candy , Company, Inc., manufac-
tures and sells candy at its facility in Paducah,' Kentucky.
Respondent, ,with approximately 35 employees, is admit-
tedly' an employer engaged in commerce within the
meaning of Section 2(2), (6),' and (7) of the National
Labor Relations Act. The Company's production and
maintenance employees are represented by the Bakery,
Confectionery & Tobacco Workers International Union
of America, Local No. 199, AFL-CIO, which is admit-
tedly a, labor organization within the meaning of Section
2(5) of the Act. At all relevant times, the parties operat-
ed pursuant to a collective-bargaining agreement, dated
January 1, 1980.
II. THE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Sec-
tion. 8(a)(1) of the National Relations Act by repeatedly
denying Union Business Agent Lawrence Simmons
access to Respondent's premises contrary to the collec-
tive-bargaining agreement; by threatening an employee
with discharge for engaging in union activities; and by
creating the impression among its employees that their
union activities were under surveillance. The complaint
also alleges that Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act when it issued a
written warning to Frank Townsend, one of its employ-
ees, and subsequently discharged him.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alleged denials of access
The record contains three separate incidents involving
Respondent's conduct in denying the Union access to the
plant.
1. On Friday, October 9, 1981 , at approximately 9 p.m.
Union Business Agent Lawrence Simmons, accompanied
by another union official, attempted to enter the premises
of Gilliam Candy Company, pursuant to a provision of
the collective-bargaining contract. On this particular oc-
casion, Simmons' visit to the plant was prompted by a
telephone call he had received earlier that day from
Union President Houston Henderson who had informed
him that a decertification petition was being passed
around the plant and that employees were asked to sign
it.
When Simmons got to the plant, he was admitted by
employee Ruth Adams. In their testimony , Simmons and
Adams gave differing accounts of the subsequent events.
According to Simmons, he and Adams had a 'brief con-
versation in which he asked her why she was filing a de-
certification petition. Adams told him that the employees
were not getting along 'as, well as they had been before
the Union came in. Simmons then told Adams that he in-
tended to file charges against her with the union execu-
tive board for what he thought was a violation of the
Union's bylaws (Tr. 78).
Adams' version depicted a hostile Simmons who
"jumped her" and accused her of passing out the decerti-
fication petition saying "what do you think your [sic]
doing. Who are you coming in here and tearing down
everything I have built up." Adams argued with Sim-
mons, claiming that everything had gotten worse since
the Union had come in. Adams finally became upset to
the point of tears . She returned to her work area and
called Supervisor Jean Adams who lives close to the
plant for help (Tr. 182-185). Jean Adams immediately
came to the plant and, after a brief conversation with
Simmons, during which she told him that he "scared the
hell out of' Adams and upset the night shift , she asked
him to leave . Simmons, explaining that he had a contrac-
tual right of access, nevertheless left the plant (Tr. 79-80
and 203).1
Jean Adams admitted that she told Simmons to leave
without discussing the matter first with Ruth Adams
and, that in her , opinion Simmons would not have
harmed Ruth Adams physically. She also acknowledged
that her conversation with Simmons was not heated but
generally businesslike (Tr. 215-217). Only after Simmons
had left the plant did Jean Adams speak with Ruth
Adams concerning the incident (Tr. 204). The record is
clear that Simmons did not assault or coerce anyone
during this confrontation.2
' Ruth Adams filed charges with the Board concerning the October 9
and other incidents , which were subsequently settled.
2 Although Jean Adams claimed that Simmons' presence was disrupt-
ing the entire night shift (Tr. 203), I have discounted, that testimony as
she offered no details to support such a conclusion. Moreover, her testi-
mony generally indicated that the employees were- working in a normal
manner.
The evidence here, despite the repeated reference to
Simmons' "jumping" Adams, shows that Simmons - pre-
sented no physical threat to anyone, nor exhibited any
violent conduct, nor used any obscene or abusive lan-
guage . At the most, Simmons may have raised his voice
when he accused Adams of initiating the decertification
petition.
2. On Saturday , October 10, 1981, at approximately 9
a.m., Lawrence Simmons entered Respondent 's plant and
requested Paul Brooke , Respondent's vice president, for
permission to briefly go into the plant to talk to the em-
ployees. Brooke responded "no," and told trim that he
was "a disruption and distraction to the employees
during working hours ." Brooke suggested that Simmons
return at lunchtime or after work . Simmons returned
about 10:50 a.m., 10 minutes before lunchtime, and was
admitted to the plant at that time (Tr. 81, 122, and 153-
154).
Assuming that Jean Adams had informed Brooke
about the previous night's incident ,' it is clear, neverthe-
less, that it did not provide Brooke with any legitimate
reason to deny Simmons access to the employees on the
morning of October 10 and to require him to return
during the employees nonworking time.
3. On October 12, 1981, at approximately 3 p.m., Law-
rence Simmons came to Respondent's plant seeking entry
(Tr. 83, 314). Simmons spoke to Bruce Pope, Respond-
ent's president, and asked him if he could go into the
plant because he intended to serve a union charge on
Ruth Adams . Pope, still indignant about Simmons' visit
to the plant on October 9, quarreled with him for
coming down there at night and "threatening the em-
ployees." Simmons told Pope that he had not threatened
any-employees, and that if Pope refused to let him into
the plant, 'he just wanted to leave . As Simmons was leav-
ing the plant, Pope shouted after him that "he was going
to see [Simmons] behind bars."
Although Pope admitted that he denied Simmons
access to the plant, I do not credit his testimony that
Simmons threw the paper intended for Ruth Adams on
Pope's desk "frisby style." It not only conflicts with Sim-
mons' testimony, but, having been refused admission to
the plant on two previous occasions , Simmons would
certainly have been more guarded in his attitude. In any
case, Pope further admitted that out of "righteous anger"
he told Simmons "if you ever break into my building
again without permission that [you] might end up behind
bars and I [Pope] wouldn't be the one to bail [you] out."
(Tr. 317.) By Monday afternoon, Pope had certainly had
sufficient time to examine the Adams-Simmons incident
in a, rational manner, and it should have been clear that
Simmons ,posed no threat to the employees nor to Ruth
Adams in particular. Simmons' purpose to enter the
plant, although not for routine union business, was nev-
ertheless union related and within the scope of his duties.
His continued exclusion from the plant on that basis
would therefore have been improper.
In all three instances, Simmons sought admission to
the plant in accordance with the provision in the current
bargaining agreement , which provides as follows:
GILLIAM CANDY CO.
The business rep. of the union will be permitted to
enter the plant on business at any time during work-
ing' hours upon first presenting himself to person in
charge. (G.C. Exh. 5.)
Simmons had represented himself on each occasion to
the person in charge during working hours and on legiti-
mate union business. Respondent's repeated -refusal to
admit Simmons certainly interfered with the Union's ef-
forts to represent the employees. Pursuant to this provi-
sion, Simmons had entered the plant many times before
October 9 without any incident and without securing
prior, permission to do so. Even if Simmons' conduct on
the evening of October 9 had been confrontational to-
wards Adams, particularly since he was accompanied by
another union official, there was absolutely no proper
basis on which Simmons was excluded on the two subse-
quent occasions. It is well recognized that an employer's
refusal to grant union representatives access to work
premises in accordance with a contractual provision of a
bargaining agreement violates Section 8(a)(1) of the Act.
Campo Slacks. Inc., 250 NLRB 420, 429 (1980).
Impression of surveillance
As Simmons left Respondent's plant under the circum-
stances described, above, at approximately 3:30 p.m. on
Monday, October 12, 1981, he walked into the Gilliam
parking lot, and approached a group of employees, in-
cluding Frank Townsend and Mike King. After a short
conversation with them, they noticed Brooke and Pope
coming out of Respondent's'build''ing. The group of em-
ployees, feeling observed, moved to the adjacent Flor-
sheim lot. Pope and Brooke walked to the edge of the
Gilliam lot and, as Pope pointed to the group, Brooke
appeared to be writing something on a pad of paper.
After several minutes both men returned into the plant.
In their testimony, Pope and Brooke explained their
conduct-Pope pointing and Brooke writing on a pad-
as that of taking inventory for one of Gilliam's custom-
ers. They admitted, however, that Pope pointed to the
employees and simultaneously asked Brooke "What are
the employees doing out there?" I have no doubt that
Brooke and Pope conducted an inventory during the
afternoon of October 12, 1981. However, in light of the
consistent testimony by King, Townsend, and Simmons
and the chain of events beginning with the denial of
access during,the evening of October 9, 1981, as well as
Pope's threats to Simmons that day, I credit the employ-
ees' version of the incident. Indeed, the incident as de-
scribed by Brooke and Pope, in the context of the week-
end events, would be sufficient to constitute in the minds
of the assembled employees the impression that their
meeting with the union representative was under surveil-
lance. Although an employer 's presence near a union
meeting held openly on or near the employer's premise
cannot be considered coercive or intimidating, Respond-
ent's conduct here,'the pointing and taking of notes, had
the necessary coercive and restraining effect on the as-
sembled employees. Therefore, Respondent violated Sec-
tion 8(a)(1) of the Act by unlawfully creating the impres-
sion among its employees that their presence at a union
meeting was recorded and under surveillance.
629
Frank Townsend's written and oral warnings
On October 12, 1981, Respondent issued Frank Town-
send a' written warning for reporting late for work. The
General Counsel argues that the warning was union re-
lated. The circumstances were as follows: Brooke had
initially denied Simmons access to the plant several
hours earlier, on the morning of Saturday, October 10,
1981. Simmons returned to the plant about 10:50 a.m. As
Simmons left the plant again, he spoke to some of the
employees out on the sidewalk, Townsend, who was late
getting back from lunch, briefly joined the crowd and
also talked to Simmons. Townsend subsequently went
into the plant and when he punched in, he saw his super-
visor, Albert Rodgers. Rodgers said, "Frank, you're
about 15 minutes late." Townsend, explaining that he in-
curred delay in ordering his lunch, responded that in fact
he was only 12 minutes late.
Jean Adams testified that she_ had observed Townsend
talking to Simmons and the other employees on that oc-
casion and that she had brought it to Brooke's attention.
According to her testimony, she and Supervisor Albert
Rodgers observed Townsend from inside the plant for
about 12 minutes, until Townsend came into the plant.
Brooke testified that after Adams' reported Townsend's
lateness he went into the warehouse and saw Townsend
talking to Simmons and two female employees for about
a minute. As soon as Townsend noticed him, Townsend
looked up and began to leave the group. Rodgers testi-
fied that when he left for lunch about 11 a.m. and saw
Townsend talking to Simmons, he reminded Townsend
that it was past 11.
Rodgers admitted that Townsend's tardiness ' did not
cause any delay in the production process at Gilliam.
However, from the testimony of Brooke, Adams, and
Rodgers, it is apparent that they deeply resented Town-
send's conversation with Simmons.
On Monday, October 12, 1981, Rodgers told Town-
send to'go to the office of Pope, Respondent's, president.
In the presence of Brooke, Pope handed Townsend a
written reprimand dated October 1,0, 1981, which, under
the heading "Nature of Violation," indicated "Conduct"
and "Lateness" and, under the heading "Remarks"
stated: "Punched out at 10:30. Did not punch in until
11,:12. Spent extra time talking-on employee's entrance
sidewalk. Intentionally, 12 minutes late." (G.C. Exh. 2.)
Townsend testified that Pope gave him the reprimand
with the comment "you [were] talking union business on
company time, ' I can't stand for that, you were intention-
ally late." This obviously suggests that Respondent re-
sented Townsend's conversation with Simmons. Signifi-
cantly, Respondent admitted, and the record shows, that
in the past 5 years Respondent had never reprimanded
any employee, for returning late from lunch even though
other, employees have been tardy. Respondent could not
justify its disparate treatment of Townsend. It is clear,
therefore, that. Respondent reprimanded this; employee
not, merely because he was late, but because his tardiness
was the result of his "union talk" with Simmons. I find
that' Respondent violated Section 8(a)(3) and (1) of the
Act. Moreover, I also find that Respondent threatened
Townsend, as alleged in the complaint. According to
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Townsend's testimony, Pope not only gave him that rep-
rimand and referred to his intentional lateness because of
his conversation with Simmons, but he also warned
Townsend that he already had two warnings and that his
job was in jeopardy .3 In this context, it was tantamount
to saying that if he did it again he would be fired. Conse-
quently, I find that by making the accompanying remark
Respondent violated Section 8(a)(1) of the Act.
Frank Townsend's discharge
November is traditionally part of Gilliam's busy
season, and on Saturday, November 7, 1981, the plant
was scheduled to operate a combined shift. On Novem-
ber 4, 1981 , a notice was put on the bulletin board an-
nouncing the, Saturday workday. On November 5, Su-
pervisor Rodgers asked his employees if they wanted to
work on Saturday. Rodgers also approached Frank
Townsend. He told Rodgers that he would let him know
on the following day. The next morning at 6:30 a.m.,
Rodgers again asked Townsend if he could work on Sat-
urday. Townsend said "yes." However, in the afternoon
of the same day, Townsend told Rodgers that he had
changed his mind and that he would not work on Satur-
day. Rodgers told him that he had to work on Saturday.
Townsend told Rodgers to select one of the two other
cooks with less seniority. When Townsend clocked out,
Brooke met him at the timeclock. Brooke asked him,
"Frank, are you refusing a direct order to work?" Town-
send responded, "I guess I am because I can't work."
Brooke told him, "You will be terminated if you, don't
come in tomorrow." Townsend responded, "Well,
okay." Townsend subsequently talked to Simmons about
the Company's order to work. Simmons responded,
"Well, Frank, its your choice, you do what you think is
right." On Saturday, November 7, 1981, Frank Town-
send did not report for work. Instead, Billy Bowers, who
was not a fully trained cook, substituted for the cook's
job.
On Monday, November 10, Townsend attempted to
report for work. Brooke handed him a termination notice
effective November 7. As reasons for the termination, it
states : "Gross insubordination -falsifying employment ap-
plication concerning prior employment and injury."
Employees Roscoe Free, Billy King, and Ricky Arm-
strong, who also did not work on Saturday, were not
discharged. King and Free who worked on the night
shift were not given a warning , since they would have
worked until midnight the previous day and would have
had to report a few hours later for the Saturday shift.
Armstrong, the relief cooke, however, received a warn-
ing even though he had a doctor's appointment on Satur-
day.
The additional reason for Townsend's discharge,
namely "falsifying employment application concerning
prior employment and injury" did not, according to
Pope's testimony, play a major role in Respondent's deci-
sion to terminate Townsend. Yet, it was indicated on the
termination notice as a factor. In this regard, the record
shows that on Friday, November 6, Brooke received a
S I have not credited Pope's denial of havmg made these remarks. His
testimony appeared inconsistent and unconvincing.
call from Bob Penney, the compensation claims manager
from Walker Boat Yard, who inquired whether Town-
send had exhibited any physical impairment, because
Townsend, who was previously employed at Walker
Boatyard , was in the process of trying to get workmen's
compensation for a back injury. Rodgers was aware of
Townsend's back problem since on October 26, 1981,
Townsend had asked Rodgers for leave to have his back
examined by a physician. Rodgers had informed Brooke
who had prepared a memorandum (G.C. Exh. 7) in
order to record Townsend's preexisting back injury.
On the morning of Saturday, November 7, Pope and
Brooke discussed Townsend's work record and his fail-
ure to report for work. When they examined Townsend's
application file, they noted that Walker Boat Yard was
not listed as his previous employer. Pope then decided to
use Townsend's failure to report his previous employ-
ment and his back injury as additional reasons for his dis-
charge.
The General Counsel' s argument that Townsend's dis-
charge was violative of the Act rests on the theory that
the discharge was tainted by "his illegal written warn-
ing," and that no other employees were fired for their
failure to work on Saturday. Indeed, only one other em-
ployee had been discharged by the Respondent in the
prior year. That employee was fired for gross insubordi-
nation on August 8, 1981, and subsequently rehired. Re-
spondent's examination of Townsend's application dem-
onstrated, according to the General Counsel, Respond-
ent's search for a pretext to legitimize Townsend's termi-
nation, actually motivated by Respondent's union
animus.
Although Respondent's conduct in terminating Town-
send may have been tainted by the illegal warning, the
record does not support a finding of "discrimination in
regard to hire or tenure of employment" in order to dis-
courage union activity. It is initially clear that Town-
send's refusal to report for work on Saturday was the
direct cause of his termination. Had he agreed to work
that day, he would not have been discharged. Further,
the record does not convincingly establish disparate
treatment of Townsend by his employer. Townsend had
suggested that his employer should not have selected
him but, instead, employees with less seniority to do the
cooking on Saturday. Yet, the record shows that two of
the three possible candidates were scheduled for work
the preceding Friday night and the third cook who did
receive a reprimand had a doctor's appointment on Sat-
urday. Townsend had offered no excuse for his refusal to
work. To be sure, the Company has in the past refrained
from discharging employees except on rare occasions;
however, one other employee had been discharged
before for the same offense, i.e., insubordination.
Finally, Townsend's union involvement was not suffi-
ciently prominent to have become the target of an em-
ployer's animus. Among Gilliam's 35 employees were a
union president, a vice president, a secretary, and three
stewards. Townsend served as one of three stewards. In
that capacity he had never processed or filed a griev-
ance. He could not remember any conversation he had
with management involving union business. The sole in-
GILLIAM CANDY CO. 631
cident of his active union involvement was his col-versa=
tion with Simmons on October 10, 1981, when he re-
turned late from lunch. And that episode , which prompt-
ed the illegal reprimand , even ` in combination with his
status as union steward, appears too remote to establish a
prima facie case of wrongful motive. See Wright Line.,
2511 NLRB 1083 (1980).
Accordingly, I find that in discharging Frank Town-
send Respondent did not violate Section 8(aX3) and (1)
of the Act and, therefore, I dismiss the allegation relating
to Townsend 's discharge.
CONCLUSIONS OF LAW
It. Respondent, Gilliam Candy Company, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By denying Union Business Agent Lawrence Sim-
mons access to its plant on three separate occasions con-
trary to the collective-bargaining agreement , Respondent
interfered with the employees' rights guaranteed by Sec-
tion 7 of the Act, in violation of Section 8(a)(1) of the
Act.
4. By creating the impression of surveillance among its
employees , Respondent violated Section 8(a)(1) of the
Act.
5. By threatening Frank Townsend with the loss of his
jot) because he was observed conversing with a union of-
ficial, Respondent violated Section 8(a)(1) of the Act.
15. By issuing a written warning to Frank Townsend
because he was observed conversing with a union offi-
cial, Respondent violated Section 8(aXl) and (3) of the
Act.
7. The foregoing violations of Sections 8(a)(1) and (3)
of the Act affect commerce within the meaning of the
Act.
8. Any other allegations have not been substantiated.
ees. pursuant to the 'terms of the collective-bargaining
agreement.
(b) Reprimanding employees or otherwise discriminat-
ing against them regarding hire or tenure of employment
or any conditions of employment to discourage member-
ship in a 'labor organization.
(c) Creating the impression among ' its employees that
their union meetings are under surveillance.
(d) Threatening its employees with the loss of jobs be-
cause of their union activities.
(e) In any like or related manner , interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act. ,
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Expunge the written reprimand given to Frank
Townsend on October 12, 1981, from Townsend's per-
sonnel file.
(b) Post at its Paducah, Kentucky plant, copies of the
attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent 's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
REMEDY
Having found that Respondent has violated the Act in
certain respects , I shall recommend that it be required to
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
]Respondent, Gilliam Candy Company, Inc., Peducah,
Kentucky, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Arbitrarily or wrongfully denying the union busi-
ness agent access to the plant to confer with the employ-
4 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.
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT arbitrarily or wrongfully deny the
union business agent access to the plant to confer with
the employees pursuant to the terms of the collective-
bargaining agreement.
WE WILL NOT create the impression among our em-
ployees that their union activities are under surveillance.
WE WILL NOT threaten you with the loss of jobs be-
cause of your union activities.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give any warnings to you or otherwise WE WILL NOT in any like or related manner interferer
discriminate against you regarding your hire or tenure of with, restrain, or coerce you in the exercise of the rights
employment or any term or condition of employment to guaranteed you by Section 7 of the Act
discourage membership in the Union , and WE WILL
remove from our personnel files the warning given to GILLIAM CANDY COMPANY, INC.
Frank Townsend.