Goldtex, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1991

309 N.L.R.B. 158 (N.L.R.B. 1991)

158
309 NLRB No. 16
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On March 30, 1992, Administrative Law Judge J. Pargen Robert-
son issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed exceptions and a
supporting brief. The Respondent filed an answering brief to the
General Counsel’s exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinves us that they are incor-
rect. 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.
We correct the following errors in the judge’s decision:
1. The judge mistakenly stated that Supervisor Kevin Young told
employee Willie Boseman that ‘‘This plant will never be union-
ized—organized.’’ It was Boseman who made the statement to
Young.
2. The judge stated that Boseman received a written warning on
August 5, 1990, for being out of his work station. The correct date
of that warning is August 16, 1990.
3. The judge indicated that the local and state criminal investiga-
tion of employee Douglas Horne preceded his discharge on Decem-
ber 18, 1990. The Respondent did not refer the matter of Horne’s
alleged falsification of magazine subscription applications to local
police until the day after his discharge. Consequently, the Respond-
ent was not aware of any unwillingness of law enforcement officials
to bring criminal charges against Horne when it discharged him.
4. The judge stated that complaints against Derek Burden involved
productivity. The record indicates, however, that Burden had also re-
ceived prior warnings concerning his job performance.
None of these errors affect the ultimate findings and conclusions
in this case.
3 We agree with the judge’s conclusion that the Respondent law-
fully discharged employee Douglas Horne. Even assuming arguendo
that the General Counsel established a prima facie case of discrimi-
natory motivation in violation of Sec. 8(a)(3) and (4), we find that
the Respondent met its burden of establishing that it would have dis-
charged Horne even in the absence of his protected activities based
on a reasonable belief that he had forged magazine subscriptions.
See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). In additional support
of this finding, we rely on the previously noted fact that the Re-
spondent was unaware of any unwillingness by law enforcement of-
ficials to take action against Horne when it discharged him based on
the results of its own internal investigation.
Member Devaney finds it unnecessary to pass on the 8(a)(4) find-
ings regarding the warnings to and discharges of employees
Boseman and Burden.
Goldtex, Inc. and Amalgamated Clothing and Tex-
tile Workers Union, AFL–CIO, CLC. Cases 11–
CA–13756, 11–CA–14175, 11–CA–14386, and
11–RC–5652
September 30, 1991
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case1 presents the issues of whether the judge
correctly found that: several acts by the Respondent’s
officials violated Section 8(a)(1) of the Act and inter-
fered with a Board election; the Respondent warned
and discharged employees Willie Boseman and Derek
Burden in violation of Section 8(a)(3) and (4); and the
Respondent lawfully discharged employee Douglas
Horne.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Goldtex, Inc., Goldsboro,
North Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
[Direction of Second Election omitted from publica-
tion.]
Jasper C. Brown Jr., Esq. and Michael W. Jeannette Jr.,
Esq., for the General Counsel.
Terry A. Clark, Esq. and Clark Keim, Esq., of Winston-
Salem, North Carolina, for the Respondent.
DECISION
J. PARGEN ROBERTSON, Administrative Law Judge. This
matter was heard in Goldsboro, North Carolina, on Novem-
ber 5 through 8, 1991. Involved are allegations that Respond-
ent engaged in numerous independent violations of Section
8(a)(1) of the National Labor Relations Act (the Act); that
two employees received warnings and four employees were
discharged by Respondent, in violation of Section 8(a)(1),
(3), and (4) of the Act; and that Respondent granted an
across-the-board wage increase in violation of Section 8(a)(1)
and (3) of the Act. The final consolidated complaint issued
on June 13, 1991. Additionally this matter concerns issues
raised by objections filed by the Union.
I have considered the entire record including briefs filed
by Respondent and the General Counsel, in reaching this de-
cision.
With one exception the only matters at issue are the alle-
gations of unfair labor practice violations and objections in
the representation case. Other matters including the jurisdic-
tional allegations were admitted. In that regard Respondent
admitted that it is an employer engaged in commerce as de-
fined in Section 2(6) and (7) of the Act, with a plant located
at Goldsboro, North Carolina, where it is primarily engaged
in the business of printing and dyeing textile products and
that the Charging Party (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
The parties did dispute whether an investigator was an
agent of Respondent. As to that matter the record evidence
showed that David Grimes is the owner of Grimes Investiga-
tions, a private investigation firm. Grimes is also the owner
of Century Security Services, a security guard and patrol
business, and Sierra Enterprises, a specialty equipment com-
pany that supplies special equipment such as night vision
equipment and firearms to law enforcement agencies and the
security industry. The General Counsel alleged that Grimes
was acting as Respondent’s agent when he interviewed
159GOLDTEX, INC.
former employee Douglas Horne regarding an allegation that
someone ordered magazine subscriptions for Respondent
without authorization.
The evidence proved that Respondent did employ Grimes
to investigate the matter of unauthorized magazine subscrip-
tion but Grimes was not employed as an employee. Instead
Grimes was employed to investigate that matter in the course
of his position as the owner of Grimes Investigations. While
he interviewed Douglas Horne, Grimes was specifically act-
ing in the role for which he was employed by Respondent.
I find that the evidence showed that David Grimes was an
agent of Respondent as to material actions.
The record included testimony that the Union began an or-
ganizing campaign among Respondent’s employees at the
Goldsboro plant in December 1989. Respondent admitted
that it learned of that union organizing campaign on January
10, 1990, when it received a phone call from the NLRB Re-
gional Office advising that the Union had filed a petition for
an election. The record illustrated that the Union filed a peti-
tion for an election on January 8, 1990, and that an election
was held on March 1, 1990. The Union did not receive a ma-
jority of the valid votes counted.
I. THE 8(A)(1) ALLEGATIONS AND OBJECTIONS
The complaint includes allegations that Respondent en-
gaged in the following because of its employees’ union orga-
nizing campaign during January and February 1990. As to
the matter raised in the representation case, as shown above,
the critical period ran from January 8, when the Union filed
its petition, until March 1, 1990, when the election was held.
A. Allegations Involving Reduction in Hours of Work
During February 1990 John Gervin and employees Hollo-
way, Willie Williams, and Keith Sutton talked with Super-
visor James Williams about the Union. James Williams told
the four employees that they would be working less hours
and things would pick up after the election when Will Hop-
per will have time to concentrate on his plant instead of the
Union. Gervin testified that his hours were actually reduced
during February.
James Williams denied that he ever talked with either John
Gervin or Michael Holloway about the Union. Williams ad-
mitted that he talked to some employees about how to re-
quest return of their union authorization cards but, according
to Williams he had those conversations only with employees
that came to him and asked how they could get their cards
back. Williams did not name any of those employees.
However, after denying that he ever talked to John Gervin
about the Union, when asked specifically did John Gervin
ever talk to you about the Union, Williams answered yes.
Williams also admitted that Gervin let him know that he sup-
ported the Union.
Findings
I was not impressed with the demeanor of James Williams.
Williams was evasive in his testimony and he appeared to
vacillate in his answers. I was impressed with the testimony
of John Gervin and I credit his testimony.
I find that Supervisor John Williams engaged in conduct
violative of the Act by telling his employees they would be
working less hours and things would pick up after the elec-
tion when Respondent’s president would have time to con-
centrate on his plant instead of the Union. Fort Wayne
Foundry Corp., 296 NLRB 127 (1989); Taylor Chair Co.,
292 NLRB 658 (1989); McCarthy Processors, 292 NLRB
359 (1989).
B. Interrogated and Threatened its Employees with
Loss of Jobs
Michael Holloway testified that Supervisor James Wil-
liams asked why the employees were going for the Union
and that they should get their union cards back because it
was going to hurt them. Williams said that Holloway could
lose his job by having the Union. Holloway responded to
cross-examination that he did not recall wearing anything
that would identify him as a union supporter.
James Williams was the supervisor in the warehouse from
February 5 until December 1990.
As shown above, James Williams denied that he ever
talked with Michael Holloway about the Union. Williams ad-
mitted that he talked to some employees about how to re-
quest return of their union authorization cards but, according
to Williams, he had those conversations only with employees
that came to him and asked how they could get their cards
back.
Around December 17, 1990, Willie Boseman was given a
warning by Kevin Young. Young told him that he had to
write up Boseman for some damaged cloth. When Boseman
kept refusing to sign the writeup, Young said that the Com-
pany was out to get Boseman. Boseman testified that Young
said, ‘‘Look at your T-shirt. He said, it’s an ACTWU T-shirt.
So, you’ve been talking to people about the Union.’’
Boseman told Young that he had not been talking to anyone.
Young said, ‘‘This plant will never be unionized organized.’’
Young told Boseman that if he did not sign the writeup
the Company would do another investigation and would
probably terminate him.
Kevin Young denied that he told Boseman that Respond-
ent was out to get him and that they would conduct another
investigation and probably terminate Boseman.
Findings
As shown above I found James Williams was not a credi-
ble witness. As to the matter involving Williams, I credit the
testimony of Michael Holloway.
I was impressed with the testimony of Willie Boseman.
Boseman, an alleged discriminatee, was on the stand for a
considerable time. He appeared to testify forthrightly even
though at times, his testimony did not appear to favor his po-
sition. I have determined to credit Boseman unless credible
evidence illustrates that particular testimony was erroneous.
As to Kevin Young, I was not as impressed with his de-
meanor and I do not credit his testimony over that of
Boseman. As shown below Young’s testimony conflicted
with that of several other witnesses including at least one
witness for Respondent.
In view of my credibility findings, I find that James Wil-
liams interrogated Michael Holloway (see Southwire Co. v.
NLRB, 820 F.2d 453 (D.C. Cir. 1987); Kona 60 Minute
Photo, 277 NLRB 867 (1985); Sunnyvale Medical Clinic,
277 NLRB 1217 (1985); WXON-TV, 289 NLRB 615, 619
(1988); NLRB v. Brookwood Furniture, 701 F.2d 452 (5th
Cir. 1983); Bakers of Paris, 288 NLRB 991 (1988); Holiday
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Inn-Glendale, 277 NLRB 1254, 1275 (1985); Premier Main-
tenance, 282 NLRB 10 (1986)), and threatened Holloway
with loss of his job if the Union was successful. I find that
Kevin Young threatened Willie Boseman that Respondent
was out to get Boseman because of Boseman’s support of the
Union and that the Company would conduct another inves-
tigation and probably discharge Boseman. 299 Lincoln Street,
Inc., 292 NLRB 172 (1988); National Micronetics, 277
NLRB 993 (1985); Southwire Co., 277 NLRB 377 (1985).
C. Solicited its Employees to Withdraw Their Union
Authorization Cards
James Gervin testified that during February 1990 Super-
visor James Williams talked with him and employees Willie
Williams, Holloway, and Sutton. James Williams gave the
employees copies of a letter and told them that they could
get their union cards back by signing the letter.
John Gervin identified a letter captioned ‘‘(SAMPLE LET-
TER),’’ as the letter Williams had shown the employees,
which was addressed to the Union. That letter requested can-
cellation and return of the signatory employee’s union card.
Supervisor James Williams admitted that he did show
some employees forms and he explained to the employees
how to fill out the forms to get their union cards back, after
the employees had asked him how they could get their cards
back. Williams testified that he did not distribute the forms
illustrating how to request return of union authorization
cards, to every employee in the warehouse. Williams denied
that he ever talked with John Gervin or Michael Holloway
about the Union. However, as shown above, when asked if
Gervin ever talked to him about the Union, Williams an-
swered yes.
Findings
In view of my previous credibility findings, I do not credit
the testimony of James Williams. I do credit the testimony
of John Gervin. The credited evidence illustrates that James
Williams solicited employees to withdraw their union author-
ization cards. Fabric Warehouse, 294 NLRB 189 (1989);
Lott’s Electric Co., 293 NLRB 297 (1989).
D. Prohibited Employees from Distributing
Union Leaflets
On January 29, 1990, Willie Boseman was told by Depart-
ment Head Sammy Hines that he could not pass out union
leaflets on company property. Boseman was passing out
union leaflets at the time in the parking lot. Hines told him
that he would have to either put the leaflets in his car or get
off company property.
Sammy Hines testified that after an employee complained
about being confronted with distribution of union leaflets
when he came into work, Hines noticed Willie Boseman
passing out the leaflets at a point where parked vehicles fun-
nelled employees through a small opening into the plant.
Hines testified that he went up to Boseman and said,
‘‘Willie, . . you can’t be handing out literature out here.
. . . you’re going to have either get off of our property or
put your literature in your car and come on in and get ready
for work.’’ Boseman responded, ‘‘I think you’re wrong, I
can do this.’’ Hines testified that he told Boseman, ‘‘Well,
I don’t think so, Willie. You’ve got the choice, either leave
the property, put the stuff in your car and come on into
work. One or the two, the choice is yours.’’ Boseman again
protested that he thought Hines was wrong but went to his
car, put the literature in the car and came into the plant.
Hines testified that he did not recall whether there were other
employees there at the time but he felt sure there were other
employees walking around during that time.
According to Hines, he then discussed the matter with
Tom Reece in personnel and Reece told him that he thought
he had made a mistake, that Boseman did have the right to
distribute the literature as long as they were not in produc-
tion areas or distributing the literature on workers’ time.
Hines testified that later that day he went to Boseman and
apologized that he had been wrong in telling Boseman that
he could not distribute union leaflets in the parking lot.
Hines recalled that he told Boseman that all he asked was
that Boseman not block the sidewalks and the entrances to
the plant and not to force the literature on people.
Boseman denied that Hines came to him and apologized.
Findings
As shown above, I find Willie Boseman was a credible
witness. In view of his testimony and the admissions of
Sammy Hines, I find that Hines illegally prohibited Boseman
from distributing prounion literature in nonwork areas during
nonwork time. Moreover, I credit the testimony of Boseman
and find that Sammy Hines did not apologize to Boseman
and admit that he was mistaken in prohibiting the distribu-
tion. Southern Maryland Hospital, 293 NLRB 1209 (1989);
All American Gourmet, 292 NLRB 1111 (1989).
F. Promised Unspecified Benefits
1. Will Hopper
Current employee John Gervin testified that he attended
meetings called by Respondent among warehouse employees
in the conference room of the main plant during January and
February 1990. Gervin testified that Will Hopper, Respond-
ent’s president, chief operating officer, and chief financial of-
ficer, spoke at the meetings and that Hopper told the ware-
house employees that he could not promise them anything
during the union campaign but that after the NLRB election
there would be major changes and that if the employees had
any problems with supervisors or favoritism toward one, the
employees should come and talk to him.
Gervin in a prehearing affidavit, testified that Hopper, dur-
ing his meetings with employees, told them that the Union
has nothing to offer, that a lock out could happen but that
Hopper never threatened plant closure or loss of benefits.
Hopper did say that now everything would be on the bar-
gaining table; that the employees would have to pay their
own medical benefits if on strike; and that there would be
changes in supervision.
Tom Reaves, director of management information services
for Respondent, testified that he was present with Will Hop-
per when Hopper had one-on-one meetings with employees
in the Grey Warehouse. Reaves denied that Hopper ever
promised changes or threatened to close the plant during
those meetings.
Reaves testified that only employees that asked to meet
with Will Hopper were called into the one-on-one meetings.
161GOLDTEX, INC.
No one that did not volunteer was called into any of those
meetings.
Will Hopper testified that during the employee speeches
he specifically told the employees that he could make no
promises.
Current warehouse employee Michael Holloway attended
meetings conducted by Will Hopper in the main plant. Hollo-
way recalled Hopper telling the employees that you never
know, he might close the doors down and that there would
be some changes after the election.
Former employee Q. C. Walls testified that he attended a
meeting in the conference room during January 1990. Will
Hopper spoke to the employees. Walls testified that Hopper
said the Company had no need for a union and he would not
negotiate with the Union. Hopper said this thing could drag
on for years as far as he was concerned. Walls testified that
he was not allowed to attend other meetings between man-
agement and the employees. His supervisor told him that he
was not allowed to attend because employees that had al-
ready made up their minds were not permitted to attend.
Henry Berry, the assistant plant engineer, testified that he
excluded three employees under his supervision, from some
of Will Hopper’s speeches against the Union, including
Q. C. Walls. Berry testified that Walls came to him and
asked why he was not allowed to attend Hopper’s meetings
and Berry said that he told Walls that Walls had been disrup-
tive in prior meetings and that was the reason he was asked
not to attend.
Just before the election in late February, John Gervin
talked with Will Hopper in Supervisor James Williams’ of-
fice in the warehouse. Gervin told Hopper that he did not
want to talk about the Union. Gervin was concerned because
his former job of section leader had been taken away. Hop-
per told him that he could not promise anything before the
election but that there would be major changes after the elec-
tion.
Former employee Linwood Seawell attended some meet-
ings held by Will Hopper during the union campaign in Jan-
uary and February 1990. Seawell recalled that Hopper
showed films and spoke to the employees. Hopper said that
he did not have to do anything with the Union, that if they
put a proposal on the table he could push it away. Hopper
said that he had an open door policy, anybody had any com-
plaints they could come to him for advice. Before that time,
according to Seawell, he had heard nothing about an open
door policy. Seawell testified that Hopper told the employees
that he could close the plant and he could have a lockout if
there was a strike. On cross-examination Seawell admitted
that Hopper told the employees that Respondent was obli-
gated to negotiate in good faith if they selected the Union
as their bargaining representative.
Alleged discriminatee Nelson Artis testified that he did not
recall Will Hopper threatening to close the plant or promis-
ing good things during Hopper’s talks against the Union.
Artis testified that Hopper did say that he would not nego-
tiate if the Union won the election.
Will Hopper testified that he told the employees that the
Company had an obligation to bargain fairly if the employees
selected the Union, and the Company would do so in every
way. Hopper denied that he ever told any employee that the
Company would not bargain with the Union. He denied that
he ever told an employee that the Union cannot help them.
Hopper denied telling the employees that negotiations could
drag on for years. According to Hopper he told the employ-
ees that he could not predict what the Union would request
and that negotiations could last either a short or a long time
depending on those requests.
Hopper testified that he frequently told the employees that
he could make no promises. He admitted that he did ask the
employees to give him another chance.
Findings
As shown above there was considerable differences in the
various recollections regarding the speeches by Will Hopper.
That is understandable in view of the fact that Hopper actu-
ally conducted a series of meetings with groups of employees
and each group attended several meetings. Some employees
were excluded from some of the meetings but generally, all
employees attended several meetings.
In view of the overall testimony I am convinced that Hop-
per made several statements designed to assure the employ-
ees that he was restrained by law as to what he could say
during the union campaign. However, I was also impressed
with the testimony of several employees including John
Gervin and Will Hopper himself, showing that Hopper men-
tioned that he should be given another chance. Also I find
convincing the testimony that Hopper told the employees that
there would be changes after the election. I was also con-
vinced from the testimony of employees including Linwood
Seawell, that Hopper for the first time told the employees
that they were free to come and discuss their problems with
him.
Hopper’s comments to the effect there would be changes
after the election and his offer, for the first time, to be avail-
able for employees to discuss with him, their problems, con-
stitutes conduct violative of Section 8(a)(1) and objectionable
conduct. Marshalltown Trowel Co., 293 NLRB 693 (1989);
Pennsy Supply, 295 NLRB 324 (1989).
2. Sammy Hines
Willie Boseman testified that Department Head Sammy
Hines came to his machine in the evening of January 29,
1990, and told him that he should keep an open mind about
what Will Hopper had to say about the Union and that Hop-
per had said he was going to make some changes, a lot of
changes. Hines said that if Hopper did not make the changes
Hines would quit working for the Company.
Sammy Hines admitted telling employees they should keep
and open mind and listen to Will Hopper. Hines denied that
he told any employee that the plant would close as a result
of the union attempt and he denied that he ever told any em-
ployee that he would quit his job if Will Hopper did not
make changes.
Findings
As shown above, I was impressed with the testimony of
Willie Boseman. I credit his testimony that Sammy Hines
told him that Will Hopper had said he was going to make
changes after the election. I do not credit the testimony of
Sammy Hines to the extent it conflicts with that of Boseman.
Hines’ testimony did, on occasion, conflict with the testi-
mony of others and, although on many occasions I was im-
pressed that Hines was trying to testify truthfully even
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
though some of the testimony was harmful to Respondent, I
was not convinced that he was completely candid. As shown
below I was especially unimpressed with Hines’ testimony
regarding the justification for the discharge of Willie
Boseman.
Hines comments regarding changes after the election con-
stitutes objectionable conduct and violation of Section
8(a)(1). Marshalltown Trowel Co., supra; Pennsy Supply,
supra.
3. Charles Smith
Boseman testified that Department Head Charles Smith
came to his machine on February 16, 1990, and told him to
listen to Will Hopper and that the problems in the plant
could be worked out without a union. Smith told Boseman
that the employees should go to Hopper’s office and talk to
Hopper about the things that were wrong in the plant.
Charles Smith testified that he recalled one conversation
with Willie Boseman:
I told him that if he just trusted Mr. Hopper and give
him another chance, that, I think he would see, you
know, some improvement in the plant, that if there was
any problems or questions, that he could feel free to go
up and talk with him, because he had an open door pol-
icy and he could feel free to go up and talk with him
anytime.
Findings
I credit the testimony of Willie Boseman which was sub-
stantially corroborated by Charles Smith. I find on the basis
of Boseman’s testimony that Smith held out the promise that
the employees’ problems could be worked out without a
union if the employees would listen to Will Hopper. Smith
also solicited Boseman to encourage the employees to go to
Hopper and talk with Hopper about what they thought was
wrong in the plant. Marshalltown Trowel Co., supra; Pennsy
Supply, supra.
F. Threatened its Employees with Futility if they
Selected the Union
Willie Boseman testified that his supervisor, Nick Samson
(spelled Sanford in the transcript), came to him at his ma-
chine on February 15, 1990, and told him that he should lis-
ten to Hopper about the Union. Samson said that the Union
could not do the employees any good and if the employees
voted in the Union Hopper was just going to say no to ev-
erything.
Nick Samson who is now in quality control, but was fin-
ishing supervisor in early 1990, admitted talking with Willie
Boseman in late January 1990, as well as with other employ-
ees that he supervised, about the Union. Samson testified that
he told Boseman that the Union would only win the right to
bargain if they won the election, that the Company has the
right to refuse any union demand, that the Company would
have to bargain in good faith but that Will Hopper would
bargain for the Company and that Hopper would refuse any-
thing that was not in the best interest of the Company. Sam-
son admitted saying that Hopper could refuse any union pro-
posal which was not in Respondent’s best interest. Samson
denied that he told Boseman that the Union cannot do any-
thing for the employees or that he told Boseman that if the
Union wins, Hopper does not have to do anything for the
employees and was just going to say no to everything.
Findings
I credit the testimony of Willie Boseman. I do not credit
Samson’s testimony even though in many respects there are
similarities between Samson’s testimony and that of Willie
Boseman. I am convinced that Samson told Boseman that he
should listen to Will Hopper and that the Union could not
do the employees any good and if the Union was voted in
Hopper would just say no to everything. McCarthy Proc-
essors, 292 NLRB 359; Cannon Industries, 291 NLRB 632
(1988); cf. Fern Terrace Lodge, 297 NLRB 8 (1989), where
the Board disagreed with an administrative law judge in find-
ing that the facts did not support a finding of a violation.
G. Threatened its Employees with Plant Closure
1. Henry Berry
Former employee Q. C. Walls testified that during Feb-
ruary 1990, his supervisor, Henry Berry, told him that Will
Hopper did not have to agree with the Union and, it being
Hopper’s plant, Hopper could close the doors if he wanted
to.
Henry Berry admitted talking to Walls but Berry denied
telling Walls that Hopper could close the plant. Berry testi-
fied that the only thing he said to Walls was that Hopper
would bargain in good faith.
Findings
I found unbelievable Henry Berry’s testimony that the
only thing he said to Q. C. Walls was that Will Hopper
would bargain in good faith. I was impressed with Walls de-
meanor and I am convinced that he testified truthfully when
he testified that Berry told him that Hopper did not have to
agree with the Union and, it being Hopper’s plant, that Hop-
per could close the doors if he wanted to. Telex Communica-
tions, 294 NLRB 1136 (1989); Marshalltown Trowel Co.,
293 NLRB 693.
2. Charlie Hines
Willie Boseman recalled that Supervisor Charlie Hines
came to him at work on February 19, 1990, and said that the
Union is no damn good and was going to cause the plant to
be closed.
Charlie Hines testified that he was a department head for
Respondent in January and February 1990. Hines recalled
talking to Willie Boseman about the Union. Hines denied
telling Boseman that the Union was no damn good. He re-
called that Boseman asked him about plants closing in Rocky
Mount, North Carolina. Hines testified that he lived in Rocky
Mount and a lot of unions had come into Rocky Mount and
there was a lot of plants that closed down at the time. Ac-
cording to Hines he told Boseman that due to economic con-
ditions a lot of plants in Rocky Mount were closing.
Findings
Again I was impressed with Willie Boseman’s testimony.
According to the testimony of Charlie Hines, he walked a
fine line between talking about the Union coming into his
163GOLDTEX, INC.
hometown of Rocky Mount, many plants closing in Rocky
Mount, and that it was simple economics that caused those
closings. I find that testimony unbelievable. I find in agree-
ment with Boseman, that the message from Charlie Hines
was that unions were no good and the Union was going to
cause the plant to close. Telex Communications, supra;
Marshalltown Towel Co., supra.
H. Remedied Grievances
Willie Boseman testified that the employees complained
about Supervisors Mike Gillespie and Billy Ray Combs and
that both those supervisors were reassigned by Respondent to
other jobs.
In the course of the employee meetings Hopper made
some announcements regarding management personnel. It
was announced that three or four individuals had changed job
positions, two new positions were created during that time
and it was announced that Dave Parsons was being made
human resources manager.
In late January 1990, Will Hopper told the employees that
Mike Gillespie had been replaced by Cecil Robinson and that
Gillespie had been reassigned in the plant.
Findings
As shown above there was considerable testimony show-
ing that Will Hopper held out to employees there would be
changes. In line with those promises he announced to the
employees that some of their complaints, specifically those
about some supervisors, were being handled in a positive
fashion. Undesirable supervisors were being moved. NLRB v.
S. E. Nichols, Inc., 862 F.2d 952 (2d Cir. 1988); Pony Ex-
press Courier Corp., 283 NLRB 868 (1987).
I. Threatened its Employees With Unspecified Reprisals
Henry Berry
Former employee Linwood Seawell testified that during
January 1990 while he worked for Respondent, his super-
visor, Henry Berry, asked him why he was wearing a no
comment button. Berry told Seawell that it would be in his
best interest to vote no, that the Union could not do anything
but charge dues. On cross-examination after being shown his
prehearing affidavit, Seawell agreed that Berry had talked to
him in February instead of January.
Henry Berry admitted that he stopped Linwood Seawell
and asked Seawell if he was understanding everything Will
Hopper was telling the employees in the employee meetings.
Seawell replied that he was understanding Hopper. Berry
said that he then asked Seawell why Seawell was wearing
that button, referring to Seawell’s no comment button.
Seawell responded that he was looking for fairness.
Findings
Linwood Seawell and Henry Berry did not differ greatly
in their versions of their January conversation. I agree with
the testimony which shows that Berry questioned Seawell
about his no comment button and that Berry told Seawell
that it would be in his best interest to vote against the Union.
However, I do not find that comment to be coercisive. North-
ern Wire Corp., 291 NLRB 727 (1988); Phoenix Glove Co.,
268 NLRB 680 fn. 3 (1984); cf. Timsco, Inc. v. NLRB, 819
F.2d 1173 (D.C. Cir. 1987).
J. Orally Prohibited Employees From Talking
In the early morning of December 17, 1990, Supervisor
Kevin Young told Willie Boseman that the employees could
not communicate with each other at the machines because of
the union thing. Boseman asked if that was just for him and
Young said no, it went for everybody.
On cross-examination Nelson Artis testified that Kevin
Young told him that he did not want them talking because
they might be talking about the Union.
Findings
I credit the testimony of Boseman and Artis that Super-
visor Kevin Young prohibited them from talking because
they might be talking about the Union. Teamsters Local 543
(Gencorp Automotive), 294 NLRB 717 (1989); Hotel Roa-
noke, 293 NLRB 182 (1989).
II. THE 8(A)(3) AND 8(A)(4) ALLEGATIONS
A. The Alleged Illegal Discharges
Some of the alleged illegal discriminatees were allegedly
discharged because of an accumulation of disciplinary ac-
tions against them. In that regard it is uncontested that
around May 1, 1990, Respondent explained to its employees
that it was instituting a new employee handbook and that it
was at that time clearing the records in the sense that all
prior warnings would be disregarded in consideration of fu-
ture progressive discipline.
1. Willie Boseman
Willie Boseman was discharged on April 12, 1991. He had
worked for Respondent or Respondent’s predecessor, since
1976. At the time of his discharge Boseman was a machine
operator in the finishing department.
Boseman signed a union authorization card on January 5,
1990. He told his supervisor that he supported the Union; so-
licited employees to sign Union authorization cards; wore
prounion stickers, buttons, T-shirts, and hats; made house
calls for the Union and passed out union leaflets at the plant
gate and parking lots.
A couple of days after he signed his union card Boseman
overheard Supervisor Mike Gillespie tell another supervisor
that he knew the employees were engaged in union activity.
Boseman had two conversations with Department Head
Sammy Hines regarding the Union on January 29, 1990.
While Boseman was passing out union leaflets in the parking
lot before work, Hines came to him and told him that he
could not pass out the leaflets on company property. Hines
told Boseman to either get off the property or put the leaflets
in his car. That evening Hines came to Boseman’s machine
at work and told Boseman that he should keep an open mind
about what Will Hopper had said about the Union and that
Hopper had said he was going to make some changes. Hines
told Boseman ‘‘a lot of good changes, and that if [Hopper]
didn’t do what he said [Hines] would quit working for the
Company.’’
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Under cross-examination Boseman admitted that despite
the above incident he again passed out union leaflets with the
union organizers.
Nick Samson who was the finishing supervisor in early
1990 admitted that Willie Boseman along with Thurman
Burdon and Bobby Richardson, was purposefully excluded
from some of Will Hopper’s antiunion speeches. Samson ad-
mitted that those three employees were excluded from some
of the speeches because Respondent felt those employees had
already made up their minds and that Respondent knew their
positions on the Union.
After Respondent implemented a new employee handbook
on May 1, 1990, Willie Boseman received several warnings
during the next year and was then discharged allegedly be-
cause he was involved in a third incident involving work
quality, which justified disciplinary action. When it an-
nounced implementation of the new handbook, Respondent
advised its employees that any disciplinary actions issued be-
fore May 1 would no longer receive consideration toward
progressive disciplinary action.
Boseman received a warning on August 5, 1990, for being
out of his work station. As shown below, I find that Re-
spondent violated Section 8(a)(1) and (3) of the Act by
issuing the August 5 warning against Boseman.
On December 17, 1990, Boseman was warned regarding
work quality. Boseman was warned for improper procedure
on his machine. Boseman testified that on the occasion in
question he was not running the machine. Instead he was
running some patches in accord with his supervisors’ instruc-
tions. Boseman testified that he did not know who had start-
ed the machines. Boseman filed unfair labor practice charges
over that incident. Supervisor Kevin Young told Boseman
that he had to write up Boseman for some damaged cloth.
When Boseman kept refusing to sign the writeup, Young
said that the Company was out to get Boseman. Boseman
testified that Young said, ‘‘Look at your T-shirt. He said, it’s
an ACTWU T-shirt. So, you’ve been talking to people about
the Union.’’ Boseman told Young that he had not been talk-
ing to anyone. Young said, ‘‘This plant will never be union-
ized organized.’’
Young told Boseman that if he did not sign the writeup
the Company would do another investigation and would
probably terminate him.
Boseman eventually signed the writeup after Department
Head David Ellis asked him to sign.
Kevin Young testified that he issued a warning to
Boseman on December 17 because Boseman had incorrectly
threaded cloth through a ring from the washer causing holes
in the fabric. Young testified that when he told Boseman that
he was issuing a warning, Boseman said he may as well get
his things because this was his last writeup and he would be
terminated. Young turned the matter over to his supervisor,
David Ellis, when Boseman refused to sign the warning.
Young denied that he told Boseman that the Company was
out to get Boseman or that he told Boseman that the Com-
pany would investigate the matter and terminate Boseman.
Additionally, in the early morning of December 17, 1990,
Kevin Young told Boseman that the employees could not
communicate with each other at the machines because of the
union thing. Boseman asked if that was just for him and
Young said no, it went for everybody. As shown above I
find that Respondent engaged in a violation of Section
8(a)(1) by that action in prohibiting employees from talking
because they may be talking about the Union.
As mentioned above, although Young denied telling
Boseman that he could not communicate with other employ-
ees because of the union thing. He admitted that he did tell
Boseman not to leave his machine and bother other employ-
ees while they were operating their machines.
In line with my above mentioned findings as to credibility,
I credit the above mentioned testimony of Boseman and, to
the extent there is conflict, I discredit the testimony of Kevin
Young.
On February 20, 1991, Boseman received a written warn-
ing for incorrectly punching the timeclock. This warning
which did not involve work quality did not involve violative
action by Respondent (see below).
Boseman was discharged on April 12, 1991. He and Nel-
son Artis were called into a meeting with David Ellis, Wydel
Swenson, and Sammy Hines. Ellis said that 2300 yards of
cloth had been damaged, that the damaged cloth was valued
at $12,000 and that they would have to let Boseman and
Artis go. Supervisor Wydel Swenson said that it was mighty
funny how they had been running the cloth that long and no
scuff marks had ever been seen and it was not right for the
Company to write paperwork and fire Artis and Boseman.
Ellis told Boseman and Artis they needed to see Dave Par-
sons. Boseman asked why since they had already been fired.
Ellis responded that some times employees get out of hand
and they should see Parsons the next Monday.
The evidence was not disputed that the damaged cloth ran
on two shifts and that three of the six employees involved
in running that cloth on the two shifts received disciplinary
action. Nelson Artis and his counterpart on the next shift
Douglas Baker, were both disciplined because they each
failed to catch the defects even though they were in position
to observe those defects. Respondent contended that Willie
Boseman incorrectly threaded the lycra cloth and addition-
ally, Boseman relieved Artis during the shift and should have
observed the defect in the same manner as Artis should have
observed the defects. Boseman denied both allegations that
he improperly treated the cloth and that he relieved Artis. In-
stead, according to unrebutted testimony, the Supervisor
Wydel Swenson relieved Artis during their shift.
Boseman’s counterpart on the next shift, Ralph Barfield,
was not disciplined after Barfield convinced management
that he did not relieve Douglas Baker during the period while
the damaged lycra cloth was running. Therefore Respondent
determined that Barfield was never in position to observe the
defect from the exit position and he was not disciplined de-
spite the obvious fact that he, being in the entry level posi-
tion, had the same opportunity to observe any defect in the
way the cloth was threaded that Boseman had on the earlier
shift.
Two employees, the middlemen on both shifts including
Terry Kennon on the shift with Boseman and Artis, ran the
cloth that was allegedly damaged but were not disciplined.
Respondent determined that neither of the middlemen were
in position to observe the defects in the lycra cloth. Only
Boseman and Artis were discharged. Boseman testified that
their supervisor, Wydel Swenson was present throughout the
time they ran the cloth on the day in question—April 7—
and that Swenson was helping them run the cloth. The evi-
dence was uncontested that Wydel Swenson did relieve Artis
165GOLDTEX, INC.
during the time of the running to the lycra cloth. However,
Swenson was not disciplined because of the damaged cloth.
Swenson told Boseman that he had not seen scuff marks
on the cloth and Boseman testified that he never did see any
scuff marks.
According to Nelson Artis, Foreman Swenson told Artis
that a large quantity of cloth that ran on April 7 was defec-
tive. Later that day Artis was included in a meeting in the
finishing office with Supervisors David Ellis, Sammy Hines,
and Wydel Swenson along with fellow employee Willie
Boseman. David Ellis spoke. Ellis told Artis and Boseman
that they had messed up two thousand some odd yards of
cloth; that he had checked their records and because each of
them already had two warnings for quality, they knew this
meant their terminations. Foreman Wydel Swenson spoke up
saying that he was with the crew the whole while, he had
not seen anything on the cloth and did not think Boseman
and Artis should get fired.
During operation of April 7, according to Artis’ testimony,
he relieved the middle man, Terry Kennon, during Kennon’s
break and Artis was, in turn, relieved for his break, by Fore-
man Wydel Swenson.
Sammy Hines testified that his job is that of print super-
intendent and that three department heads report directly to
him. Each of those department heads supervise four super-
visors. Some 150 or 160 employees work under the overall
supervision of Sammy Hines.
Hines testified that the decision to discharge Willie
Boseman and Nelson Artis occurred after quality control dis-
covered that some 1300 yards of cotton lycra fabric had scuff
marks. That resulted in the high quality material being down-
graded. According to Hines it was determined that the dam-
age to the cotton lycra resulted from the entry operator’s ac-
tion in operating the rope washer and determining the tension
of the material. The entry operator at that time was Willie
Boseman. Hines testified that the exit operator should have
discovered the defects. That operator, Nelson Artis, was dis-
charged for failing to discover and report the defects in the
cotton lycra material. The middleman was not, according to
Hines, in position to observe the defects. Therefore, it was
decided that the middleman should not be disciplined. Hines
was asked on cross-examination if the middle man could not
see through the cloth while it was spread out and running
through his section. Hines replied that he did not know about
that but that he did know that the middle man was looking
at the back of the cloth.
On cross-examination Hines admitted that the cotton lycra
continued to run on the following shift and that none of the
employees on that shift were disciplined. Hines testified that
it was his recollection that all the damage occurred during
the middle of Boseman and Artis’ shift and that no damage
resulted while the cloth was running on the following shift.
Hines admitted that he was not aware that either of the two
operators that replaced Boseman and Artis on the following
shift,—Douglas Baker and Ralph Barfield—supported the
Union. Hines admitted that he did not talk with Baker or
Barfield in investigating the incident of the damaged lycra.
Supervisor Kevin Young testified contrary to Print Super-
intendent Sammy Hines that the lycra cloth in question was
run on both shifts and that he prepared written warnings for
Douglas Baker and Ralph Barfield because some of the dam-
aged cloth ran on their shift. Barfield complained that he had
not given the breaker a break on the shift in question and
Young turned the matter over to his Supervisor David Ellis
who determined to not warn Barfield because Barfield did
not relieve the exit operator. Instead Barfield remained on
the entry position throughout the time of the running of the
lycra fabric. Barfield remained in the position comparable to
that of Willie Boseman on the day shift.
There were several conflicts apparent in the testimony by
Respondent’s supervisors involved in the discharge of Willie
Boseman.
Sammy Hines was asked if Supervisor Wydel Swenson
spoke in defense of Boseman and Artis during their termi-
nation interview. Hines denied that Swenson had said that he
had been with Boseman and Artis and that he did not see
any scuff marks. Hines said that he did not recall Wydel
Swenson being in the meeting. Hines admitted that if the su-
pervisor had filled in for the operators while damaged cloth
was running then the supervisor should be disciplined along
with the employees. Hines admitted that the supervisor,
Wydel Swenson, was not disciplined on the occasion of the
discharge of Boseman and Artis.
Hines testified that it is company policy to take discipli-
nary action only in those instances where it can determine
fault. In situations where it cannot be determined which em-
ployee caused damage, then none of the operators are dis-
ciplined. According to Hines they have never disciplined all
three operators because of quality problems similar to the
one for which Boseman and Artis were fired.
Supervisor Kevin Young testified that the practice was to
issue warnings to all three operators in instances where cloth
is damaged but it cannot be ascertained which employee
caused the damage.
Supervisor David Ellis, who was present during the termi-
nal interview, admitted that Supervisor Wydel Swenson
spoke in defense of Boseman and Artis.
Supervisor Wydel Swenson who was available to testify,
having continued to work for Respondent, did not testify.
Swenson did not deny that he relieved exit operator Artis
during the running of the lycra cloth nor did he deny that
he told Sammy Hines that he was with Boseman and neither
he nor Boseman observed scuff marks in the lycra or that he
spoke up during the terminal interview protesting that neither
Boseman nor Artis deserved disciplinary action.
Findings
The record supported a finding of a prima facie case as
to the discharge of Willie Boseman.
As shown above Respondent was well aware of
Boseman’s prounion activities and had taken actions against
Boseman because of his union activities.
The credited evidence proved that Boseman’s supervisor,
Kevin Young, told him that the Company was out to get him
because of his union activities and especially that Boseman
was wearing a union tee-shirt and that Young told Boseman
that the Company would probably conduct another investiga-
tion and fire Boseman.
As to his termination, the record shows that Boseman was
treated disparately.
Boseman was the entry operator on one of two shifts that
ran the defective lycra cloth. Although Respondent contends
that Boseman was at fault in permitting the cloth to run from
his position with excess tension, the entry operator on the
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
next shift, Ralph Barfield, had the same responsibilities re-
garding running the machinery and he had the same opportu-
nities to correct the tension problem. Barfield, unlike
Boseman, was not disciplined.
Respondent also contends that Boseman, unlike Barfield,
relieved the exit operator for a break, while the damaged
cloth was being run. However, Boseman contended that Artis
was relieved by the Supervisor Wydel Swenson during the
running of the lycra. Boseman contended that he did not re-
lieve Artis after the morning of April 7. Swenson did not tes-
tify. I credit Boseman’s testimony in that regard even though
Supervisor David Ellis testified that he observed Boseman
operating the exit position on April 7 and that Boseman by
signing the ticket for the lycra cloth illustrated he was acting
as exit operator. Boseman denied that the signature on the
ticket was his. Regardless of my determination of the conflict
between Ellis and Boseman as to whether Boseman relieved
Artis, the question remains as to why Wydel Swenson who
relieved Artis during that operation, was not treated in the
same fashion as Boseman. Nevertheless, I am convinced that
Boseman was a truthful witness and I credit his testimony
and discredit the conflicting testimony of Ellis. Ellis’ testi-
mony differs in many respects from that of other witnesses
including Superintendent Sammy Hines. For example Hines
recalled there was 1300 yards of damaged lycra cloth while
Ellis recalled the damaged cloth involved 2300 yards.
In view of the above, I find that Boseman was treated dif-
ferently than Ralph Barfield even though both conducted the
same job while damaged lycra cloth was being run. More-
over, there was no showing as to why Boseman was not
treated in the same fashion as the two middle operators who
were not disciplined or why he was not treated in the same
fashion as the supervisor, Wydel Swenson, who relieved the
exit operator. None of those people, other than Boseman,
was disciplined.
Additionally I find that Respondent failed to prove that
Boseman would have been disciplined in the absence of his
union activities. The record shows that other employees that
performed the same duties as Boseman on the damaged
cloth, were not disciplined and Respondent failed to explain
that disparity. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); Delta Gas, 283 NLRB 391 (1987), enfd.
840 F.2d 309 (5th Cir. 1988); Southwire Co. v. NLRB, 820
F.2d 453 (D.C. Cir. 1987); Yaohan of California, 280 NLRB
268 (1986).
As to the 8(a)(4) allegation, the record showed that the
Union filed a charge on March 9, 1990, involving among
other things, an incident on January 29 wherein Boseman
was prohibited from distributing union leaflets. In view of
the fact that Boseman was the only employee involved in the
distribution, it is apparent that Respondent was aware that he
had given evidence in that charge. Therefore I agree with the
General Counsel that Boseman’s discharge violates Section
8(a)(4) as well as Section 8(a)(1) and (3).
2. Nelson Artis
Nelson Artis was discharged in the same incident which
resulted in the discharge of Willie Boseman on April 12,
1991.
Artis was the glue dryer operator. He had worked for Re-
spondent since January 11, 1989.
Unlike Boseman, Artis did not engage in substantial union
activity. He testified that his attendance at two union meet-
ings was his only union activity. Artis admitted that Re-
spondent was unaware that he engaged in any union activity.
According to Artis, he had received two prior warnings re-
lated to production before the April 7 incident involving
Boseman, Artis, Terry Kennon, and Foreman Wydel
Swenson.
Artis testified that before April 7, it was Respondent’s
practice to award a warning to each member of a crew that
was responsible for a mistake unless it was possible to deter-
mine with precision which employee was responsible for the
mistake. On April 7 only Boseman and Artis were punished.
Neither Terry Kennon nor Foreman Swenson received dis-
ciplinary action.
On April 12 Foreman Swenson told Artis that a large
quantity of cloth that ran on April 7 was defective. Later that
day Artis was included in a meeting in the finishing office
with Supervisors David Ellis, Sammy Hines, and Wydel
Swenson along with fellow employee Willie Boseman. David
Ellis spoke. Ellis told Artis and Boseman that they had
messed up 2000 some odd yards of cloth; that he had
checked their records and because each of them already had
two warnings for quality, they knew this meant their termi-
nations. Foreman Wydel Swenson spoke up saying that he
was with the crew the whole while, he had not seen anything
on the cloth and did not think Boseman and Artis should get
fired.
Artis testified that he was the exit operator, Boseman was
the entry operator and Terry Kennon was the middle man in
the crew on April 7 and that all three of them were respon-
sible for observing any defects. Artis testified that middle
man Terry Kennon should have been able to observe any
scuff defects on the cloth while the crew was operating on
April 7. However, only Boseman and Artis were punished
because of the April 7 incident.
During operation of April 7, according to Artis’ testimony,
he relieved the middle man, Terry Kennon, during Kennon’s
break and Artis was, in turn, relieved for his break, by Fore-
man Wydel Swenson.
Findings
The evidence does not support a prima facie case regard-
ing the discharge of Nelson Artis.
Unlike Boseman, there was no showing that Respondent
was aware that Artis was a strong union advocate. In fact,
Artis was not a strong union advocate. By his own testimony
as shown above, his union activity was not remarkable.
There was no showing that Respondent was even aware of
how Artis felt about the Union. In that regard I disagree with
the General Counsel that Respondent illustrated knowledge
of Artis’ union position by telling him not to talk in fear that
the talk may involve the Union.
Moreover, unlike the situation with Boseman, there was no
showing that Artis was treated with disparity. Both Artis and
his counterpart on the next shift, Douglas Baker, received
warnings for the same alleged infraction.
Additionally, the evidence does not support a finding that
Artis was discharged in order to support the discharge of
Boseman. As shown above, Artis was the exit operator and
167GOLDTEX, INC.
any showing of shortcomings by the exit operator would not
reflect on action against anyone other than that operator. Al-
though there was testimony by David Ellis that Boseman re-
lieved Artis during his shift, that evidence which was dis-
credited, was not critical to a determination that Boseman’s
discharge was justified.
I find that the General Counsel failed to show that Re-
spondent was motivated to discharge Artis by its employees’
protected activities.
3. Douglas Horne
Douglas Horne worked for Respondent as a materials han-
dler in the warehouse when he started on July 16, 1986. In
August 1988 Horne became a sample clerk in the warehouse
department. He worked in the main plant for 2 years until
the sample clerk job was eliminated and he again became a
materials handler. He then worked at the Grey Warehouse
until his discharge on November 5, 1990.
Horne filed unfair labor practice charges over the abolition
of his sample clerk job during the summer of 1990. That
charge was dismissed.
Horne was active in the union campaign. He wore union
buttons and stickers, attended union meetings, talked to em-
ployees at their homes, and passed out union leaflets at the
main gate.
Willie Boseman testified that Douglas Horne also passed
out leaflets in support of former employee Ina Mae Best.
Horne testified that he and employee Greg Lewis had a
conversation with Supervisor Debra Gillespie about the
Union in February 1990 while at work in the breakroom.
Gillespie asked Horne why he was wearing a union button.
The button said, ‘‘Workers Want Fairness.’’ Horne replied to
Gillespie, that he wanted fairness too. Gillespie told him that
she wished he would take the button off.
On November 5, 1990, Horne was called into a meeting
with Dave Parsons and Jeff Cunningham. Parsons gave
Horne copies of two magazine subscription forms and asked
if Horne had filled in those forms which were orders for sub-
scriptions for Ladies Home Journal and Redbook. The forms
indicated the subscriber as ‘‘Ina S. Friends, Goldtex Co.’’
Horne denied that he had filled in the forms which indicated
that the subscriber should be billed.
Dave Parsons told Horne that he believed that Horne was
the person that had filled out the subscription forms and that
he was suspending Horne until a handwriting analysis was
secured to determine whether Horne had completed the sub-
scriptions.
On November 12, 1990, Horne met with an investigator,
Dave Grimes, in Persons’ office at the plant. Horne testified
that Grimes told him that the Company thought Horne had
subscribed to the magazines in the Company’s name and
Grimes told Horne that he was subject to as many as 3
years’ imprisonment and like a $1000 fine because that was
a felony for mail fraud.
On December 18 Horne met with Parsons in Parsons’ of-
fice. Parsons told Horne they had secured a handwriting
analysis that said the handwriting on the subscription forms
was Horne’s and that Horne was terminated effective No-
vember 5. Horne asked for a copy of the report. Parsons told
him that he could not have a copy of the handwriting analy-
sis.
Horne also met with Detective Rick Sutton of the Golds-
boro police department. Sutton told Horne that Respondent
wanted to prosecute him for filling out the magazine sub-
scriptions. Horne told Sutton that he had not filled out the
subscriptions and that he felt Respondent’s handwriting anal-
ysis was in error. At Sutton’s request Horne supplied him
with samples of Horne’s handwriting.
Detective Sutton testified that he forwarded material in-
cluding copies of the magazine subscriptions and handwriting
samples provided by Douglas Horne, to the North Carolina
State Bureau of Investigation. Subsequently the State Bureau
of Investigation submitted a report to the Goldsboro police
that the Bureau could not determine whether the subscription
handwriting matched the handwriting of Douglas Horne. Sut-
ton testified that the investigation was now in an inactive sta-
tus.
David Dunn of the North Carolina State Bureau of Inves-
tigation, testified that he was the employee that investigated
the allegations regarding the magazine subscriptions. He
compared the copies of the magazine subscriptions against
samples of Douglas Horne’s handwriting. The samples of
Horne’s handwriting included a sheet prepared by Horne at
the request of the Goldsboro police plus two sheets of his
handwriting taken from Respondent’s records. Accordingly
one of those samples was prepared by Horne after he knew
he was under investigation. However, the other two docu-
ments were writings of Horne made at times when he was
not under investigation.
Dunn testified that the Bureau routinely resists giving
opinions based on copies of writings but that the Bureau may
give a qualified opinion such as it is highly probable or it
is probable that a person is the author. Dunn reported there
were enough similarity between Horne’s handwriting and the
subscription copies to warrant a request for the original sub-
scriptions. However, Dunn never did receive the originals.
He determined that the evidence which included only the
subscription copies, was insufficient to justify an opinion as
to whether Douglas Horne had written the magazine sub-
scriptions. According to Dunn, even though there were simi-
larities between Horne’s handwriting samples and the sub-
scriptions, there were also differences.
According to Dunn, copies do not permit examination of
pressure applied to make particular letters and since that ex-
amination is critical to complete handwriting analysis, the
Bureau routinely resists rendering opinions where only cop-
ies are available for analysis.
Respondent defended the allegations regarding the dis-
charge of Douglas Horne by showing that in October, No-
vember, and December 1990, it received magazines which it
had not purchased including Redbook, Good Housekeeping,
Ladies Home Journal and US News. On inquiry to the pub-
lishers, Respondent was supplied with copies of subscriptions
to Redbook and Ladies Home Journal. Despite its requests
for originals, Respondent received only photocopies of those
subscription forms which were received in evidence.
Respondent had not authorized the purchase of subscrip-
tions to the magazines mentioned above. Lisa Musselman
who handled accounts payable for Respondent, testified that
upon learning that Respondent was receiving the magazines
and receiving an invoice for payment on the subscription for
Ladies Home Journal, she canceled all the unauthorized sub-
scriptions and requested that Respondent be sent the original
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
subscription applications. Musselman received copies only of
the subscriptions to Redbook and Ladies Home Journal.
Upon examination Musselman felt that she recognized the
handwriting of Douglas Horne on those subscriptions. Before
that time Musselman routinely reviewed logs of the receipt
of express deliveries which were prepared by Douglas Horne
in the normal course of his work for Respondent.
Lisa Musselman reported to her supervisor that she felt the
handwriting on the subscriptions was Douglas Horne’s. At
the directions of her supervisor, Musselman pulled files
showing Horne’s entries in logs and compared those writings
to the writing on the subscriptions. She showed her super-
visor those writings and both Musselman and the supervisor,
Jo Gurley, testified that they believed that the writing on the
subscription applications was Douglas Horne’s.
On cross-examination Jo Gurley testified that Respondent
discharged employee Ray Massey for misappropriation of
funds. Respondent did not seek to prosecute Massey who
was accused of misappropriating what Gurley recalled as at
least a couple of thousand dollars.
Douglas Horne was eventually confronted by Respondent
as to whether he had written the subscription requests for Re-
spondent to subscribe to the five disputed magazines. Horne
denied that he had written the subscription requests.
Respondent employed Investigator David Grimes to look
into the matter and Grimes interviewed Douglas Horne.
Horne denied that he had written the subscription requests.
John P. Roggina testified that he was contacted by David
Grimes. Roggina testified that he is a handwriting expert and
that he has testified in court as an expert in that field. At
his request Roggina was supplied with copies of the disputed
subscription requests along with samples of Douglas Horne’s
handwriting. Roggina testified that he positively identified
the disputed writing as that of Douglas Horne and that Re-
spondent was advised of his conclusions. Roggina testified
that the matter of the magazine subscriptions and Douglas
Horne, was one of two matters that he was requested to in-
vestigate on behalf of Respondent.
Roggina agreed that it is the policy of the North Carolina
State Bureau of Investigation to refuse to give an opinion in
handwriting comparison cases because of the difficulty in de-
termining pen pressure on copies. However, Roggina testified
that he frequently renders opinions despite the fact that one
or more of the comparison documents is a copy. Roggina
testified that he renders opinions in those situations where he
is confident of his opinion despite the fact that one of the
comparison documents is a copy.
On cross-examination Roggina was shown samples of
Horne’s handwriting and the copies of the magazine sub-
scriptions. Roggina testified to what he considered similar-
ities and he testified that the only differences he notices were
differences in size.
Findings
In determination of this issue I shall follow the Board’s
procedure of first questioning whether the evidence supports
a prima facie case that Respondent was motivated to dis-
charge Douglas Horne because of his protected activities and,
secondly, if I should find a prima facie case has been estab-
lished, I shall question whether Respondent would have dis-
charged Horne in the absence of protected activities. Wright
Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir.), cert.
denied 455 U.S. 989; NLRB v. Transportation Management
Corp., 462 U.S. 393; Delta Gas, 283 NLRB 391, enfd. 840
F.2d 309 (5th Cir.); Southwire Co. v. NLRB, 820 F.2d 453
(D.C. Cir.); Yaohan of California, 280 NLRB 268.
The record does offer support for the General Counsel
having proven a prima facie case as to Douglas Horne’s dis-
charge. As shown herein, the General Counsel proved ani-
mus by proving that Respondent engaged in numerous inci-
dents of violations of unfair labor practice prohibitions.
Respondent was aware of Douglas Horne’s prounion posi-
tion and some of his prounion activities. Additionally Re-
spondent was aware that Horne had filed an unfair labor
practice against it in the summer of 1990, alleging that Re-
spondent had illegally abolished his former job as sample
clerk.
However, despite that evidence there remains an issue of
whether Respondent was motivated to discharge Horne be-
cause of his protected activities.
Respondent contends that it discharged Horne because it
was convinced that Horne had ordered subscriptions for sev-
eral magazines on behalf of Respondent without authority.
Apparently, either as a joke or in spite because of hard
feelings against Respondent, someone had ordered subscrip-
tions in Respondent’s name from five magazines.
When Respondent discovered that it was receiving sub-
scriptions it had not ordered, the matter was assigned to ac-
counts receivable clerk Lisa Musselman. Musselman testified
that she contacted all the magazines and canceled the sub-
scriptions. Musselman informed each magazine that the sub-
scriptions had not been authorized by Respondent.
Musselman also requested that Respondent be supplied with
the original subscriptions for the purpose of investigating
how the subscriptions started.
Lisa Musselman testified that when she first looked at the
subscription copy immediately upon receiving it in her of-
fice, she thought she recognized the writing as that of Doug-
las Horne. Lisa Musselman was familiar with Horne’s writ-
ing. She had routinely reviewed Horne’s log of receipt of
courier deliveries, while Horne worked for Respondent as a
sample clerk.
I was impressed with the demeanor of Lisa Musselman.
She appeared to testify candidly. I credit her testimony.
Musselman’s testimony was, of course, not rebutted. That
testimony, and the other evidence showing that Respondent
did actually receive unauthorized mailings from the five
magazines in question, proved without rebuttal, that a prob-
lem developed during the fall of 1990 regarding Respondent
receiving magazine subscriptions.
Additionally, there was no rebuttal to evidence showing
that Musselman compared the subscription copies with sam-
ples of Douglas Horne’s handwriting found in Respondent’s
records, after being directed to make those comparison by
her supervisor, Jo Gurney. I credit that evidence along with
the testimony of Jo Gurney that she became convinced that
the subscriptions were written by Horne after Musselman
showed her the logs along with the subscription copies.
Shortly thereafter Douglas Horne was confronted with Re-
spondent’s concern with whether he had subscribed to the
magazines on Respondent’s behalf. Personnel Director Par-
sons interviewed Douglas Horne regarding that issue. After
Horne denied that he had forged the subscriptions, he was
suspended pending further investigation.
169GOLDTEX, INC.
In view of Horne’s denial that he had written the subscrip-
tions, Respondent decided to both report the incident to the
police and, to investigate the matter on their own accord.
Upon complaint from Respondent, an investigation was
conducted by the Goldsboro, North Carolina, police that in-
volved an interview with Douglas Horne. Horne again denied
that he had forged the subscriptions. The Goldsboro police
then referred the matter to the North Carolina Bureau of In-
vestigation. There a handwriting comparison was conducted
involving the subscription copies and known samples of
Douglas Horne’s handwriting.
The Bureau of Investigation determined in accord with
their usual procedure that they could not competently deter-
mine that Douglas Horne had written the subscriptions. The
Bureau of Investigation determined that they could not deter-
mine whether or not Horne had written the subscriptions be-
cause they were provided with only copies of the magazine
subscriptions and copies do not provide them with sufficient
opportunities to examine pen pressure. The evidence showed
that the magazines told Respondent that they could no longer
provide the original subscriptions.
Respondent also employed a private investigator for two
matters involving possible employee forgery and that inves-
tigator, David Grimes, interviewed Douglas Horne. Again
Horne denied that he had written the subscriptions. Subse-
quently, Grimes turned the sought the assistance of a known
handwriting expert. He had heard that John Roggina did that
type of work and he contacted Roggina. Both the matter in-
volving Horne and another matter involving another em-
ployee were referred to Roggina for handwriting compari-
sons. As to the magazines, Roggina was asked if he could
determine if Douglas Horne had written the subscriptions.
I credit the above evidence. In substantial part it is not re-
butted. Moreover, other than the question of did Douglas
Horne actually forge the subscriptions, there was little con-
flicts in the testimony.
Roggina submitted a report to David Grimes that in his
opinion Douglas Horne did forge the magazine subscriptions.
On the basis of that report, Respondent discharged Douglas
Horne.
It is not my job to determine whether Douglas Horne
forged the magazine subscriptions and I specifically avoid
making that decision. What I must determine is whether Re-
spondent discharged Horne because of his protected activi-
ties. In order to make that determination I must find that Re-
spondent’s asserted basis for Horne’s discharge was
pretextuous.
The evidence does not show that Respondent’s asserted
basis for the discharge of Horne was pretextuous. Despite
Respondent’s awareness of the unwillingness of law enforce-
ment officials to bring criminal charges against Douglas
Horne, it was also aware that the Bureau of Investigation did
not determine that Horne had not forged the magazine sub-
scriptions.
On the other hand, Respondent was presented with a find-
ing of a person known to be a handwriting expert, giving his
opinion that Horne had forged the subscriptions. I am unable
to find that evidence was insubstantial nor can I find that Re-
spondent should have realized that Roggina’s report was in-
correct.
I observed the testimony of Roggina and I am unable to
determine that he was untruthful.
Here, it is important to keep in mind that the General
Counsel bears the burden of proving that Respondent was
motivated by Horne’s protected activities in discharging him.
This is not a situation such as is the case when an employee
is discharged because he allegedly engaged in misconduct
while engaged in protected activity. cf: Rubin Bros. Foot-
wear, 99 NLRB 610 (1952); NLRB v. Burnup & Sims, 379
U.S. 21 (1964); see also Clear Pine Moldings, 268 NLRB
1044 (1984); Freight Movers, 292 NLRB 633 (1989).
Here there is no contention that the writing of magazine
subscriptions involved protected activities. Therefore the
General Counsel bears the burden of proving that Respond-
ent did not reasonably believe that Horne forged the maga-
zine subscriptions. The General Counsel failed to satisfy that
burden.
Therefore the record failed to show that Respondent was
motivated to discharge Douglas Horne because of Horne’s
union activities. The record illustrated that Respondent dis-
charged Horne because of its belief that he forged magazine
subscriptions. In view of that evidence I must find that the
General Counsel failed to prove its allegations regarding the
discharge of Horne.
4. Derek Burden
The General Counsel alleged that Derek Burden was ille-
gally discharged on December 17, 1990.
Derek Burden started working for Respondent in Novem-
ber 1987. During the union campaign he wore union buttons
to work, wore a union T-shirt, passed out union leaflets and
talked to other employees about the Union.
Burden testified that in December 1989 or January 1990,
he, along with Mark Rowe told Supervisor Wanda Dawson
that they were involved in union activities. Dawson re-
sponded that she did not care. On cross-examination Burden
testified that conversation probably occurred in January 1990
during the second week of that month, most probably after
January 10.
Burden received a warning for being out of his work area
on January 24, 1990. As shown below, I find that warning
was issued Burden because of his union activities and con-
stituted a violation of Section 8(a)(1) and (3) of the Act.
On December 4, 1990, Derek Burden received a warning
for allegedly failing to maintain productivity standards. Su-
pervisor Wanda Dawson issued that warning, which follows:
In August of 1990 conversations were documented
on Derek concerning his below standard performance.
At that time goals were established and he was told his
performance would be monitored. In September he was
meeting the established goals, and was advised that we
would expect him to continue to meet these goals. Then
in October his efficiency started dropping off, at which
time we were doing some training of new employees.
In the past (3) three weeks Derek’s main responsibility
has been to write approvals and his efficiency continues
to drop. Even with the duties of filing, writing purchase
orders, receiving reports, writing strike off request and
typing screen reports being taken away he is operating
at a 75% efficiency. This level of productivity is not
acceptable.
An immediate improvement to the previously estab-
lished goals or better must occur. A (unclear) of
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
progress will be made Monday Dec 10th, failure to
reach established goals will result in a second warning.
Warnings will be issued at any period the goal is not
maintained.
Dereks comments are up until Nov 4th he’d took
part in training Ginger Wellington. I understood she is
doing all the filing and paper work [unclear], but I have
had to help her and train her which takes time from my
other responsibilities. Taking part in the training of
Ginger was a responsibility given to me by my super-
visor. I spent a lot of time training her while Wanda
and Herb were on vacation, which resulted in the low-
ering of my efficiency. I am still having problems with
customers and have discussed these problems with
Wanda.
Employee signature Derek Burden
Date 12/4/90
Place-Lab & Strike Off Office
Derek Burden agreed that in his job as formula technician
in the print lab, he was given a weekly production standard
during August 1990. On cross-examination Burden testified
that during August he believed the standard was 48 patterns,
53 combinations, and 11 strikeoffs. Subsequently the stand-
ard was set at 48 patterns, 68 combinations per week. He ex-
plained that a pattern involves making up a number of
screens necessary to form a design. Each screen involves one
color and the pattern includes all the screens necessary to
make up a design where the design may include several col-
ors. A combination involves using patterns to form a particu-
lar color which may require a combination of base colors,
red, blue, and yellow.
Burden testified that there was a dramatic pickup in the
business to the point where during August 1990, he could
not keep up with the work. It was at that time that Wanda
Dawson first came to him and gave him a production stand-
ard.
Respondent through Supervisor Wanda Dawson, offered
documents regarding Burden’s productivity. Included was the
following document dated July 10, 1990:
Below standard job efficiency. On 7/10/90 this con-
versation was held with Derek to discuss his present
job efficiency level, and what improvements will be re-
quired within the next two (2) weeks. Records show
that Derek is writing approvals for an average of 25.1
patterns, 36.1 combinations per week. The two (2) pre-
vious employees in this job averaged 33 patterns—49
combinations per week, plus wrote up all strike-off re-
quest pitch sheets in addition to other duties.
Within the next two (2) weeks by (7/21/90) we ex-
pect Derek to be averaging 33 patterns—49 combina-
tions of approvals per week. At the end of these two
(2) weeks we will discuss his progress and a time pe-
riod in which we will expect him to be able to write
up strike off request pitch sheets, which is a part of his
job.
Then on July 24, 1990, Wanda Dawson wrote the follow-
ing:
Follow up on efficiency results. On 7/10/90 a con-
versation was documented on Derek concerning his low
efficiency. During this two (2) week period he has im-
proved on writing approvals from 33 patterns, 49 com-
binations to 34 patterns (62) combinations per week. At
this rate Derek should be able to get caught up on ap-
provals within two (2) weeks (By 8–4–90) at which
time he is to pick up his other duties, (such as writing
strike off spec sheets) and stay caught up in other areas
of responsibility.
Another follow up will be made in two (2) weeks,
(8/7/90).
Then on August 17, 1990, Dawson wrote:
On 7/10/90 and again on 7/24/90 conversations were
conducted with Derek concerning his low efficiency.
After the first conversation on 7/24/90 Derek was able
to meet the goal established for writing approvals. At
this time he was told (in the second conversation) that
at this rate of improvement he should be able to catch
up on approvals and be able to assume his other job du-
ties in two weeks. After three weeks he has not only
been unable to catch up on approvals he has dropped
below the original goal established for number of ap-
provals to be written.
This level of efficiency is not acceptable.
Beginning 8/20/90 through 9/1/90 (two weeks) the
following goals are established. He is to complete 46
patterns 68 combinations of approvals and a minimum
of 10 (ten) strike off request per week. Failure to reach
these goals may result in disciplinary action.
Then on September 6, 1990, Wanda Dawson wrote:
Follow up on efficiency. On 8/17/90 a follow up
conversation was documented on Derek concerning his
job efficiency. At this time new goals were established
that would bring his efficiency in line with that of two
(2) previous employees in this job.
For week ending 9/1/90 Derek was able to meet the
established goal, and perform other duties in his job.
This level of productivity is required of Derek and will
be monitored on a weekly basis to be sure it is main-
tained.
W/E 9/1/90 approvals 49 patterns 56 combinations
strike off spec sheets eleven (11).
Department Head Herbert Johnston testified that he went
back and researched what past formula technicians had done
in their job when it became apparent that Derek Burden was
unable to keep up with his work. Over an 11-week period
in the first of 1989, Johnston determined that Formula Tech-
nician Wanda Dawson had averaged 32 patterns and 52 com-
binations per week. During that period Dawson had a low
weekly total of 24 combinations and 18 patterns and a high
weekly total of 82 combinations and 52 patterns.
Johnston also checked the production of Formula Techni-
cian Belinda Smith for a 9-week period in April and May
1989. Smith averaged 34 patterns and 46 combinations per
week with a low of 22 patterns and 27 combinations during
the week ending April 8, 1989, and a high of 43 patterns and
59 combinations during the week ending May 13, 1989.
171GOLDTEX, INC.
In October 1990, Burden was assigned the extra task of
training new employee Ginger Wellington. For the first 2, 3
weeks after he was assigned that task, according to Burden,
he was the only one involved in training Ginger Wellington
because first, department head Herb Johnston was on vaca-
tion. During that time Supervisor Wanda Dawson took over
Herb Johnston’s work in addition to her own work, and she
was not available to help train Wellington. Then Wanda
Dawson was out on vacation. The effect was that Wanda
Dawson was unavailable to help train Ginger Wellington
until Dawson returned from her own vacation.
When Burden was given the December 4 warning he told
Supervisor Wanda Dawson that his drop in production was
caused by his spending time to train Ginger Wellington.
Wanda Dawson told Burden that he would be re-evaluated
on December 10. Burden admitted that on December 4 he
was relieved of the responsibility of training Ginger Welling-
ton.
On December 10 Burden received another warning. That
warning included the following comments:
On 12/4/90 Derek was issued a warning for below
standard work performance and was told immediate im-
provement must be accomplished. Derek was previously
given a goal to write 68 combinations for approval.
This goal was also in conjunction with writing 10 strike
offs. The requirement of writing strike offs was subse-
quently removed from his duties, therefore an increase
in the number of combinations approvals should have
resulted. On w/e 12/9, with only approvals required to
be written Derek only completed 68 combinations.
Although this met the requirement as previously set
it does not meet the required level of production when
only approvals are done therefore, Derek is being given
a second warning for (unclear) job performance.
The stated efficiency for writing pattern approvals is
1.5 combinations per hour. The total number of approv-
als required in any given week is directly in proportion
to the number of hours worked. Failure to maintain this
weekly average will result in further disciplinary action
as stated in our Company policy.
Dereks comments:
During the week of 12/9/90 while all other duties
were removed including writing strike offs, I was re-
quired to meet an established goal of 48 patterns, 68
combinations. During this week I not only met this goal
but increased from 48 to 53 patterns 68 combinations.
Burden testified in line with his above comments on the
December 10 warning, that he exceeded his production goals
during the week ending December 9 by producing 53 pat-
terns and 68 combinations.
Derek Burden also testified that he was never told that his
standard was 1.5 combinations per hour. Instead he was told
of weekly standards which were never broken down for him,
to a particular number per hour.
Supervisor Wanda Dawson was asked about approvals,
how long does it take. She responded:
Well, it actually depends on how many screens are
involved, how many colors were involved—you know,
how many combinations there are. I would say if you
had a pattern that had five combinations and 12 screens
in that pattern, it would take, I would say a good hour
or more to do.
Derek Burden asked to be permitted to go over his person-
nel file after receiving the December 10 warning. However,
evidently because the Director of Human Resources Dave
Parsons was absent from work, Burden was not permitted to
go over his file until December 17. During the week before
December 17 Burden ran out of work and was told to go
home on December 13.
When Burden returned to work on December 17, 1990, as
directed by Wanda Dawson he was told that he would be
able to review his personnel file with Dave Parsons. How-
ever, when he met with Parsons he was fired. The reason
stated on his termination form was ‘‘poor work perform-
ance.’’ That document included the following comments:
Job performance
On 12/11/90 a written warning was documented on
Derek for below standard job performance. At that time
all job duties other than writing pattern approvals were
removed from Derek and it was explained that 1.5 com-
binations per hour would be the standard required in
this job.
During the week ending 12–16–90 he worked a total
of 28.25 hours and completed 32 color combinations
plus 5 partials, which does not meet standard. This cal-
culates to be 1.3 combinations per hour giving full
credit for the partials. Also during this week 1-1/2
hours was spent in meeting and 1 hour checking ap-
provals written by another employee, after giving credit
for these hours his average is 1.4 combinations per
hour.
Since this is the third warning issued in a 12 month
period all relating to job performance the employee is
being terminated as stated in Company policy.
Burden testified that he was not shown the above docu-
ment. Instead Dave Parsons told him that he was going to
go over Burden’s file with him, that Burden had received
three warnings in a 12-month period which were grounds for
termination and that Burden was terminated because he had
not met the production standard for the week before. Burden
responded there must be some mistake. Burden explained
that he had not had enough work to keep him busy the week
before, that he had completed all the work and had been sent
home because there was no work left.
After leaving Parsons’ office with Wanda Dawson, Derek
Burden showed Dawson his production log. Burden testified
that he counted the combinations in front of Wanda Dawson
and pointed out that showed that he had produced more com-
binations than he was being credited with. Wanda Dawson
closed his book and said she would look into the matter after
he left. Burden heard nothing further from Respondent.
Respondent called current Formula Technician Ginger
Wellington who was originally employed on October 22,
1990. Wellington was trained by Derek Burden and Super-
visor Wanda Dawson. Wellington admitted that she does not
have specific production standards at present but that she was
expected to do all the work assigned to her. There are cur-
rently two formula technicians on the first shift as opposed
to only Derek Burden during August 1990.
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Findings
I find that the General Counsel proved a prima facie case
regarding the discharge of Derek Burden.
In making that determination I credit the testimony of
Derek Burden. Burden appeared to testify candidly and dem-
onstrated good demeanor. Moreover, as to the testimony
against him, I was not impressed with the demeanor of
Wanda Dawson. In many areas it appeared that Dawson was
uncomfortable with her answers. Additionally there were
areas of obvious discrimination against Burden which were
never explained. For example he was the only formula tech-
nical that was subjected to standards of performance. As
shown above Ginger Wellington admitted that she does not
work under a standard of performance. In view of those fac-
tors and the full record I credit Burden and do not credit the
testimony of the witnesses that testified against him regard-
ing Burden’s discharge.
The record illustrated that Derek Burden was an obvious
union supporter to the point of telling Supervisor Wanda
Dawson of, his position. That testimony which was
unrebutted, is credited.
As shown below, shortly after Burden told his supervisor
of his support for the Union, he was illegally awarded a
warning for being out of his work area.
In July 1990, Burden was told that he must maintain pro-
duction standards. Burden was the only formula technician
on his shift at that time even though the record shows that
Respondent routinely used two formula technicians on each
shift. Beginning in July the standards Burden were expected
to maintain were allegedly set by use of production records
of two employees set while the two of them were working
together as formula technicians. Moreover, as shown by the
testimony of Department Head Johnston, Burden was re-
quired to maintain no less than the weekly average produc-
tion even though the records of previous technicians used to
set Burden’s standards, illustrated that their records were
sometimes lower and sometimes higher than the average. As
an example, Johnston testified that one of the employees’
records he used was the production records of Wanda Daw-
son, who became Burden’s supervisor, and that Dawson’s
records revealed a low weekly production of 24 combina-
tions, 18 patterns even though her overall weekly production
averaged 32 patterns, 52 combinations.
Supervisor Wanda Dawson testified at length regarding the
importance of the job of formula technician which was for-
merly held by Derek Burden. In essence Dawson pointed out
that the quality of that work was extremely critical. However,
as to Derek Burden, as shown above, none of the disciplinary
action taken against him involved poor work quality.
The complaints against Derek Burden involved productiv-
ity.
According to both Burden and Supervisor Wanda Dawson,
the work was backing up in August 1990. Derek Burden was
unable to keep up. Burden testified, and Wanda Dawson’s
testimony supported Burden in that regard, that more work
was coming in from customers to the point that Burden was
unable to handle the increase. Burden testified that it was
that increase in work, not a decrease in his productivity,
which caused the back up in work.
Subsequently, in the fall, Respondent added to Burden’s
job duties by assigning him the job of training a new hire,
Formula Technician Ginger Wellington. Burden testified
without rebuttal that initially he was the only one involved
in Wellington’s training due to first the department head,
then the supervisor, going on vacation.
Supervisor Wanda Dawson testified there were two for-
mula technicians in early 1990. In December 1989 Respond-
ent hired Marianna Elliott. Elliott was trained as formula
technician by Derek Burden according to the testimony of
Wanda Dawson. Dawson testified that Marianna Elliott
worked for only 3 or 4 months, maybe longer.
Subsequently, on August 17, 1990, while Burden remained
the only formula technician on his shift, his production
standards were increased from the original standard or 33
patterns, 49 combinations per week to 46 patterns, 68 com-
binations per week. There was no showing that that increase
was based on any determination regarding past performances
by other formula technicians.
In October Burden was given the additional assignment of
helping train a new formula technician, Ginger Wellington.
While Burden was performing his job and training Ginger
Wellington, he received the December 4, 1990 warning for
allegedly failing to maintain the production standards which
had been set in August.
At the time of his warning on December 4, Wanda Daw-
son told Burden that his performance would be reviewed on
December 10 and that his work would be limited to approv-
als. The established goal for approvals was 68 combinations
per week.
Burden achieved 68 combinations during the week ending
December 9. Nevertheless, on December 10, Burden received
another warning for low production. As shown above the
written warning showed that Supervisor Wanda Dawson de-
cided to increase the standard to something more than 68 in
view of Burden’s work being limited to approvals only dur-
ing the week ending December 9. Burden had not been ad-
vised of an increase in standards before December 10.
Wanda Dawson never did specify what that new standard
was other than showing on the warning itself that 68 com-
binations was insufficient.
The above shows that after Respondent learned that Derek
Burden was a strong union supporter he received an illegal
warning for being out of his work station; subsequently pro-
duction standards were set for Burden’s performance which
did not allow for deviation below the standard in the manner
permitted previous formula technicians; subsequently those
production standards were substantially increased; then dur-
ing a period when Burden was given the added duty of train-
ing a new employee, he received another warning for below
standard production; and, finally, on December 10 Burden
received his final warning even though he achieved the pro-
duction standard set by Respondent. The supervisor claimed
that Burden should have done even better because some of
his duties were removed.
When confronted with the December 10 warning Burden
asked to review his record. Before that could occur Burden
was sent home during the week of December 16 because he
ran out of work.
However, when Burden returned the following week he
was discharged and, as shown above, his failure to achieve
production levels during the December 16 week was men-
tioned even though it was not denied that he had been sent
home because there was no work.
173GOLDTEX, INC.
Respondent never explained how it could hold Burden to
work standards when there was not enough work for him to
perform.
In view of the record I find that the warnings issued to
Burden during August and December were illegally moti-
vated by Respondent’s animus against Burden’s union activi-
ties. Respondent failed to show that any other employees
were ever required to meet increasingly difficult work stand-
ards or to otherwise prove that Burden would have received
those warnings in the absence of his union activities. Wright
Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir.), cert.
denied 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848; NLRB
v. Transportation Management Corp., 462 U.S. 393; Delta
Gas, Inc., 283 NLRB 391, enfd. 840 F.2d 309 (5th Cir.);
Southwire Co. v. NLRB, 820 F.2d 453 (D.C. Cir.); Yaohan
of California, 280 NLRB 268.
The General Counsel argued that it was obvious that Re-
spondent knew of Burden’s participation in the investigation
by the NLRB of charges in Cases 11–CA–13756 and 11–
CA–13891. As to Case 11–CA–13756, I see nothing appar-
ent on that charge which would inform anyone that Derek
Burden was involved in the investigation. However, I agree
with the General Counsel as to Case 11–CA–13891. Al-
though that charge was dismissed, it does allege that Re-
spondent illegally disciplined employees including Derek
Burden and Willie Boseman. Therefore, I find in agreement
with the General Counsel that the discharge of Burden vio-
lated Section 8(a)(4) as well as Section 8(a)(1) and (3).
B. The Alleged Illegal Warnings
1. Willie Boseman
August 1990
As shown above, Boseman received a warning on August
5, 1990, for being out of his work station. Boseman admitted
that he was in the preparation department talking with Alvin
Beckett for about 5 minutes. He was talking with Beckett be-
fore the shift change and he had done that in the past without
anyone saying anything to him or writing him up. Boseman
testified without rebuttal that Supervisor Bob White saw him
and Beckett talking but did not say anything to them.
Boseman testified that it was common for employees to
visit before shift change and that other employees including
Mark Presley and Ernie Sutton, had done that. Supervisors
Fernie Jarman and Charlie Hines told Boseman that Dave
Parsons had told them to write up a warning on him.
Boseman recalled that the only occasion where he received
a warning in regard to his being out of his work station oc-
curred around 1986 when Jimmy Player walked by and
threatened to ‘‘kick my MF A.’’ On that occasion Boseman
followed Player back to another area and they had words.
Findings
The unrebutted testimony illustrated that before this par-
ticular incident, employees were permitted to engage in the
same type conduct engaged in by Boseman on this occasion.
Warnings offered into evidence by Respondent, failed to
show that the contrary was the case. Those warnings illus-
trated circumstances which were obviously different than
what was involved here.
In addition to the warnings issued to Boseman and Derek
Burden for being out of their work areas, Donald Wicker
was warned for solicitation of personal materials in the pro-
duction area; Andrew Newsome was warned for leaving the
plant at noon and not returning; Willie Williams was warned
for being out of his work area and being 20–25 and 10–15
minutes late on November 13 and 15, 1989; Nelson Artis
was warned for leaving the plant without permission; Jerry
Dawson was discharged for being out of work area and tam-
pering with equipment not authorized and using threatening,
abusive and profane language to another employee and start-
ing a fight; Tony James was warned for leaving the plant
without permission as was Darrell Caulisharo; Sylvester
Brown took a break and was gone for 65 minutes; and Rob-
ert Dennis left the plant without permission and was seen in
the parking area with a visitor.
Moreover, there was no rebuttal of the testimony that Su-
pervisor Bob White said nothing to Boseman when he saw
Boseman engaged in the allegedly improper conduct nor was
there rebuttal evidence to the testimony that specific employ-
ees Presley and Sutton were permitted to engage in similar
practices.
Moreover, when Supervisor Charlie Hines testified in an
effort to justify this warning, he added that Boseman re-
ported late to work. However, the warning said nothing about
Boseman being late and implied to the contrary by stating
that Boseman was in another work area in the plant between
7:45 and 7:55 p.m. Willie Boseman’s time to start work was
8 o’clock.
The evidence as shown above, illustrated that Respondent
was well aware that Boseman was a strong union supporter.
In view of the finding of disparity and the showing of tim-
ing (coming shortly after the union campaign), along with
the evidence showing that Respondent was aware of
Boseman’s prounion activities, I find that the General Coun-
sel proved that Respondent was motivated to discipline
Boseman because of Boseman’s union activities. Respondent
failed to show that it would have disciplined Boseman in the
absence of his union activities. Wright Line, supra; NLRB v.
Transportation Management Corp., supra; Delta Gas, supra;
Southwire Co. v. NLRB, supra; Yaohan of California, supra.
February 1991
On February 20, 1991, Boseman received a written warn-
ing for incorrectly punching the timeclock. Boseman appar-
ently missed the out button and punched the cost center but-
ton which should be punched when an employee is assigned
to a different than normal job. David Ellis told Boseman that
he would not get fired because of that warning but that he
would be fired if he received another warning.
When David Ellis asked Boseman to sign the warning
Boseman complained that if he had hit the wrong button it
was an honest mistake, Ellis told him to talk to Terry in per-
sonnel. Boseman talked to a lady in personnel who told him
the matter had been straightened out.
David Ellis told Boseman that it was up to Wydel
Swenson whether the warning stood but when Boseman went
to Wydel, Swenson told him that David Ellis was the one
that told him to give Boseman the warning. Boseman did not
pursue the matter after that.
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Findings
In its defense Respondent offered other warnings in evi-
dence. There was no showing that anyone was actually
warned for mishitting the proper checkout button on the
clock. However, some of the other warnings were, like the
warning to Boseman, shown as improper clocking.
Those warnings show that Anthony Parker was terminated
because he was warned three times for failing to follow
proper timeclock policy and inaccurately reporting work
time. On one of those three occasions the warning shows that
Anthony Parker was 15 minutes late and did not punch in
or notify his supervisor.
On April 11, 1991, and again, on September 17, 1991,
Shelton Wellington was warned because he failed to
punchout. On June 28, 1991, Flint Gaskey was warned for
forgetting to bring his employee badge to work and failing
to punch in and out properly. Ann Boykin was warned on
March 21, 1991, because she failed to clock out. Scott Allen
was warned on March 12, 1991. Allen’s warning shows that
he forgot to bring his employee badge to work and that he
was reminded that he ‘‘get’s paid by clocking in and out
with his badge.’’ Daniel Miller was warned on March 4,
1991, as was Edma Wilson on February 21, 1991, for forget-
ting to clock in.
John Johnson was warned on February 18, 1991, for fail-
ing to clock in on February 14 and February 16, 1991.
Thomas Best failed to clockout on February 15 and was
warned. Randy Sutton was warned for missing his clock in
registration on February 12, 1991. Greg Johnson was warned
for missing his clock in registration on January 15, 1991. On
February 11, 1991, Dwight Swinson failed to clock in.
Swinson’s warning noted that he had been warned before
about the importance of clocking in. Doug Coker was
warned for failing to clock out on February 8, 1991.
On February 3, 1991, Michael Harris failed to clock in
properly and received a warning. Nevin Bundell received a
similar warning for failing to clock in properly on February
4, 1991.
On February 1, 1991, Donna Kaye Walker was warned for
leaving her badge at home.
On January 26, 1991, John Willis was warned for forget-
ting his badge. Subsequently, on January 31, 1991, John Wil-
lis was warned for missing clock in and out due to not hav-
ing his badge and not informing his supervisor.
Edward Rubinstein was warned on January 31 for failing
to clock in properly due to a lost badge. Joe Strickland was
warned for failing to clock in properly on January 28, 1991.
On a personnel action form dated February 2, 1991, there
was a notation regarding Clyde Kesler of ‘‘error report of
missing clock in registration. Ken, told me that he got the
sound, light & read out saying he was clock in.’’ Kesler’s
personnel action form did not include a check showing that
any disciplinary action was taken. All the action requested
blanks were not checked.
As to Willie Boseman’s February 19, 1991 personnel ac-
tion, the blank ‘‘other’’ under action requested, was checked.
In view of the full record I am not convinced that
Boseman was treated in a disparate fashion as to this particu-
lar warning. The record illustrated that Respondent routinely
warned its employees because of timeclock infractions in-
cluding the infraction of failing to clock in or out properly.
Therefore, I find that the General Counsel failed to prove a
prima facie case as to this allegation. see Wright Line, supra;
NLRB v. Transportation Management Corp., supra; Delta
Gas, supra; Southwire Co. v. NLRB, supra; Yaohan of Cali-
fornia, supra.
2. Derek Burden
January 1990
Burden received a warning for being out of his work area
on January 24, 1990. He walked out of the canteen because
the cigarette smoke was bad. While walking through the
plant he saw and spoke to employee Thurman Burdon. De-
partment Head Charles Smith saw Derek Burden and asked
what he was doing in that department. Burden said he had
just stopped to say hello to Thurman Burdon. Smith asked
if Burden’s supervisor, Wanda Dawson, knew he was in that
department and Burden told him that she did not know be-
cause he was on his lunchbreak.
Charles Smith testified in accord with the testimony of
Derek Burden. Smith testified that after Burden left he
phoned Burden’s supervisor, Wanda Dawson, and reported
what had occurred.
Derek Burden’s warning dated January 24, 1990, states:
It was reported to me by Charles Smith Finishing
Dept Head that Derek was out of his work area Mon
1/23/90. When asked why he was in finishing he re-
plied that he wanted to talk with one of Charles’ em-
ployees.
. . . .
I have told Derek that he is not to be out of his work
area or designated break area without my permission as
this is Company policy.
On cross-examination Charles Smith admitted that Re-
spondent’s current handbook does not include a rule prohibit-
ing employees from being out of their work areas during
their lunchbreak. The current handbook was not in effect
during January 1990 and Smith could not recall whether
there was a handbook in effect at that time.
Thurman Burdon, testified that Derek Burden came to him
at his machine while he was working during January 1990.
Derek Burden spoke and Thurman Burdon returned the
greeting. As he did so Thurman Burdon noticed that Depart-
ment Head Charles Smith approached Derek Burden as
Derek walked off. Thurman Burdon could not hear what was
said between Charles Smith and Derek Burden.
According to Thurman Burdon it was common for em-
ployees to walk by and speak during January 1990 and to
his knowledge there was no company policy or practice pro-
hibiting that practice.
Smith testified that employees are warned, and that he has
been involved in warning employees, for being out of their
work areas and that visits and conversations between work-
ing employees and employees from other work areas, does
interfere with work. Respondent introduced a packet of warn-
ings that it has issued employees for being out of their work
areas.
Those warnings included several warnings that were issued
before the union campaign of 1990. Those included the fol-
lowing:
Andrew Newsome was warned on November 23, 1989:
175GOLDTEX, INC.
Employee left for lunch at 12 noon, 11/23/89 and did
not return to work. Employee was not given permission
to leave work for the remainder of the 11/23/89 work-
day.
Willie Williams was warned on November 15, 1989:
Employee observed talking with co-workers and
smoking in unauthorized areas in lieu of and while
working. The talking resulted in reduced work levels by
other employees. Employee was 20-25 minutes late and
10-15 minutes late returning from lunch on 11/13/89
and 11/15/89. Employee acted and contributed to be-
havior contrary to established standards and reduced
production.
On August 4, 1989, Jerry L. Dawson was discharged:
Terminated because of being out of work area and
tampering with equipment not authorized to him and
using threatening, abusive, and profane language to a
fellow employee thus starting a fight.
Tony James was warned on January 13, 1989:
All employees have been told not to go outside with-
out supervisor knowing where he/she is going. Em-
ployee decided to go outside without letting anyone
know.
On January 13, 1989, Darrell K. Coulisharo was warned:
Employees have all been told that you can not go
outside of plant without supervisors consent. Employee
went outside without my consent so it is automatic rep-
rimand.
Sylvester Brown was warned on October 4, 1988:
[Out of work area for 65 minutes]—Sylvester went
on break at 1:55am and did not come back to his work
area until 3:am. He was paged over the intercom after
he was gone about 30 mins., but he didn’t come to the
color shop. I went to both breakrooms and checked the
bathrooms and I couldn’t locate him. I had three other
employees look for him but he still wasn’t located. He
came back at 3:am and had nothing to say when I
asked were [sic] he had been.
On February 23, 1987, Robert Harold Dennis II was
warned:
Employee was seen outside of plant in parking lot
area with a visitor when he should have been in work
area or canteen. [Employee left plant without asking in
advance.]
Nelson Artis who is alleged as an illegal dischargee, re-
ceived a warning before the Union campaign, on August 24,
1989:
Employee left plant without supervisors permission.
Included in Respondent’s evidence were the following
warnings which were issued after the union campaign started
in 1990.
On August 16, 1990 alleged discriminatee Willie Boseman
received a warning as follows:
On Wednesday 8–15–90 Willie Lee Boseman came
to work and between 7:45 and 7:55 A.M. Willie was
seen in the preparation area. Willie Boseman shift does
not start until 8:00 A.M.
The Company policy states that an employee is not
to be out of his or her work area before, during or after
his or her shift without permission.
On May 24, 1990, Donald W. Wicker received the follow-
ing warning:
Solicitation of personal materials in the production
area of plant and being out of work area while doing
this.
Findings
As in the case of Willie Boseman, the record shows that
Respondent did not discipline employees for being out of
their work areas for short time periods. The above-cited
warnings show that only those employees that engaged in far
more serious violations were warned until after the Union
initiated its 1990 campaign. Then known union advocates
Boseman and Burden were warned simply because they were
observed out of their work areas. Before that time, as shown
by the record and mentioned above regarding the warning to
Boseman in August, employees were routinely permitted to
visit in other areas even on occasions while employees were
working. In the only other incident which resulted in a warn-
ing after initiation of the union campaign, an employee was
warned for solicitation. I find, in view of the above, that the
General Counsel proved that Respondent was motivated to
warn Derek Burden because of his union activities. Respond-
ent failed to prove that Burden would have been warned in
the absence of union activities. There was no showing of
why Respondent treated Burden with disparity. Wright Line,
251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir.), cert. denied
455 U.S. 989; NLRB v. Transportation Management Corp.,
462 U.S. 393; Delta Gas, 283 NLRB 391, enfd. 840 F.2d
309 (5th Cir.); Southwire Co. v. NLRB, 820 F.2d 453 (D.C.
Cir.); Yaohan of California, 280 NLRB 268.
December 4 and 10, 1990
As shown above under the topic of the discharge of Derek
Burden I found that Respondent violated Section 8(a)(1) and
(3) by issuing warnings to Burden on December 4 and 10,
1990.
C. The Alleged Illegal Wage Increase
Respondent posted the following notice to employees:
January 10, 1990
GOLDTEX IS PLEASED TO ANNOUNCE THAT A GEN-
ERAL WAGE INCREASE IS BEING GIVEN FOR THE PAY-
ROLL PERIOD ENDING FEBRUARY 4, 1990.YOUR SUPER-
VISOR WILL COMMUNICATE YOUR NEW WAGE RATE TO
YOU THE LAST WEEK IN JANUARY.
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
SIMULTANEOUS WITH THE WAGE INCREASE, THE
QUALITY INCENTIVE MAXIMUM BONUS WILL REVERT TO
ITS NORMAL 6%.
THE MANAGEMENT OF THE COMPANY WOULD LIKE
TO THANK EACH OF YOU FOR YOUR HARD WORK AND
EFFORTS MADE DURING A DIFFICULT 1989.
/s/ Will Hopper
Will Hopper
President
Douglas Horne testified that the last wage increase he re-
ceived before January 1990, was in January 1987. Derek
Burden recalled that the employees received a wage increase
in 1988. However, Burden agreed with Horne that the em-
ployees had not received a wage increase in 1989.
On November 2, 1989, Respondent posted the following:
TO ALL EMPLOYEES:
As you are all aware, we have had severe quality
problems for the past (6) months, which has cost the
Company and our customers a great deal of money.
Our credits for the past (6) months are in excess of
$900,000. This level of quality problems cannot con-
tinue if we are to retain our customers and stay in busi-
ness.
I know all of you are concerned about when the
Company is going to give its next wage increase. With
the costs of our quality problems, a wage increase at
this time is not possible without an improvement in our
quality. Right now, we are paying our customers for
claims with money that could be used for wage in-
creases and profits for the Company.
To provide you an opportunity to earn more, we are
increasing the amount you can earn under the quality
incentive system from 6% to 10%. Your wage increase
has, in effect, been added to the quality incentive pro-
gram, and it is up to you as to whether or not you earn
it. After we get our quality and efficiencies back in
line, we will grant a general wage increase. With your
help, this can happen soon.
llllllllll
Will Hopper
President
Jo Gurley, Respondent’s comptroller, testified that she was
the administrative assistant to Will Hopper during the fall of
1989. Gurley testified that she was aware that Respondent’s
board of directors was considering a wage increase for the
employees during November 1989. She overheard a wage in-
crease being discussed by members of the board including
Saudi who is Respondent’s chief executive officer.
Gurley testified that on January 10, 1990, she was told by
Will Hopper to post the notice of a wage increase on the em-
ployees bulletin board. Some 10 or 15 minutes after that no-
tice was posted Will Hopper received a phone call from the
regional office of the NLRB. Will Hopper testified that he
learned for the first time during that phone call that the em-
ployees were involved in a union organizing campaign.
Will Hopper testified that Respondent regularly granted
wage increases and from December 1986 they customarily
posted a notice advising employees of a wage increase which
would be effective in January. Because of business difficul-
ties including a high level of customer returns, credits, and
allowances which had hurt the Company’s profitability, Re-
spondent announced on November 2, 1989 that the employ-
ees would not receive a wage increase.
Nevertheless, according to Will Hopper, an improved prof-
itability picture enabled Respondent to announce a general
wage increase on January 10, 1990. Hopper testified that it
was not until a few minutes after the January 10 announce-
ment of a wage increase was posted that he first learned
through a phone call from the NLRB that the employees had
petitioned to vote on selecting the Union as their bargaining
representative. Hopper offered documentation that the board
of directors considered granting a wage increase during their
December 6, 1989 meeting and Hopper testified that the ac-
tual decision to grant wage increase in February 1990, was
actually made a few days before the December 6, 1989 meet-
ing of the board of directors. The financial turnaround which
permitted that wage increase started in October 1989, when,
instead of a substantial loss like was experience in the prior
2 months, Respondent actually experienced a $200,000 prof-
it.
Findings
There is substantial suspicion as to the timing of the wage
increase. Some 2 months after announcing that it could not
grant a wage increase Respondent turned about and, some 2
days after the Union filed its representation case petition, Re-
spondent posted notice of an imminent wage increase.
Nevertheless there was no evidence showing that Respond-
ent knew of the union campaign before it decided, and noti-
fied its employees, of its February 1990 wage increase.
I find that the General Counsel failed to prove that the
1990 wage increase was motivated by the employees’ union
activities.
Objections
In a Decision and Direction which issued on May 1, 1990,
the Regional Director, Region 11, found that the evidence in
support of the Union’s Objections 1, 2, 3, 6, 7, and 8 is simi-
lar to evidence advanced in support of Case 11–CA–13756,
and directed consolidation with the issues in that case to be
decided by an administrative law judge. Objection 1 involved
a prediction of futility by Respondent; Objection 2 interroga-
tion; Objection 3 solicitations of grievances and withdrawals;
Objection 6 discrimination regarding working conditions;
Objection 7 intimidation, threats, and coercion, and Objection
8 lumps all the allegations together.
In view of my findings above, I conclude that the evidence
does establish objectionable conduct within the scope of the
objections referred to me by the Regional Director and I rec-
ommend that this matter be remanded to the Regional Direc-
tor for appropriate action in setting aside the past election
and scheduling a rerun election.
CONCLUSIONS OF LAW
1. Goldtex, Inc. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL–CIO, CLC is a labor organization within the meaning
of Section 2(5) of the Act.
177GOLDTEX, INC.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
3. Respondent by threatening its employees that they
would work less hours and things would pick up after the
election; by interrogating its employees about their union ac-
tivities; by threatening its employees with loss of job and
that its Employer was out to get them; by soliciting its em-
ployees to withdraw their union authorization cards; by pro-
hibiting its employees from distributing union leaflets during
nonwork time in nonwork areas; by asking its employees for
another chance and promising there will be changes after the
election; by soliciting its employees to discuss their problems
with the company president; by promising that the Company
president will make changes; by promising its employees that
their problems will be worked out if they listen to the Em-
ployer’s president; by threatening its employees that it will
be futile to support the Union; by threatening its employees
that the Company could close its doors over the Union; by
holding out to its employees that it had reassigned super-
visors because of employee complaints; and by telling its
employees that they could not talk because they may be talk-
ing about the Union; because of its employees’ union activi-
ties, Respondent has engaged in conduct in violation of Sec-
tion 8(a)(1) of the Act.
4. Respondent, by discharging and issuing warnings to,
employees Willie Boseman and Derek Burden, because of its
employees’ activities on behalf of Amalgamated Clothing
and Textile Workers Union, AFL–CIO, CIO has violated
Section 8(a)(1), (3), and (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has illegally discharged its
employees in violation of sections of the Act, I shall order
Respondent to offer Willie Boseman and Derek Burden, im-
mediate and full reinstatement to their former positions, or,
if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges. I further order Respondent to make Willie
Boseman and Derek Burden whole for any loss of earnings
they suffered as a result of the discrimination against them
and that Respondent remove from its records any reference
to the unlawful actions against its employees and notify
Willie Boseman and Derek Burden in writing that Respond-
ent’s unlawful conduct will not be used as a basis for further
personnel action. Backpay shall be computed as described in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
described in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Goldtex, Inc., Goldsboro, North Carolina,
its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Engaging in conduct in violation of Section 8(a)(1) of
the Act by threatening its employees that they would work
less hours and things would pick up after the election; by in-
terrogating its employees about their union activities; by
threatening its employees with loss of job and that its Em-
ployer was out to get them; by soliciting its employees to
withdraw their union authorization cards; by prohibiting its
employees from distributing Union leaflets during nonwork
time in nonwork areas; by asking its employees for another
chance and promising there will be changes after the elec-
tion; by soliciting its employees to discuss their problems
with the company president; by promising that the company
president will make changes; by promising its employees that
their problems will be worked out if they listen to the Em-
ployer’s president; by threatening its employees that it will
be futile to support the Union; by threatening its employees
that the Company could close its doors over the Union; by
holding out to its employees that it had reassigned super-
visors because of employee complaints; and by telling its
employees that they could not talk because they may be talk-
ing about the Union; because of its employees’ union activi-
ties.
(b) Discharging and issuing warnings to its employees be-
cause of their protected activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Willie Boseman and Derek Burden immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make Willie Boseman and Derek
Burden whole for any loss of earnings plus interest, they suf-
fered by reason of its illegal actions.
(b) Rescind its discharges and illegal warnings issued to
Willie Boseman and Derek Burden and remove from its files
any reference to its illegal warnings and discharges of Willie
Boseman and Derek Burden, and notify each of them in writ-
ing that this has been done and that evidence of its unlawful
actions will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Goldsboro, North Carolina, copies
of the attached notice marked ‘‘Appendix.’’2 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 11, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
diately upon receipt and maintained for 60 consecutive 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 covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the 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
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten our employees that they would
work less hours and things would pick up after the election.
WE WILL NOT interrogate our employees about their union
activities.
WE WILL NOT threaten our employees with loss of job and
that we are out to get them because of their union activity.
WE WILL NOT solicit our employees to withdraw their
union authorization cards.
WE WILL NOT prohibit our employees from distributing
union leaflets during nonwork time in nonwork areas.
WE WILL NOT ask our employees for another chance and
promise there will be changes after the election.
WE WILL NOT solicit our employees to discuss their prob-
lems with the company president during a union organizing
campaign.
WE WILL NOT promise that the company president will
make changes after the union election.
WE WILL NOT promise our employees that their problems
will be worked out if they listen to the company president.
WE WILL NOT threaten our employees that it will be futile
to support the Union.
WE WILL NOT threaten our employees that the Company
could close its doors over the Union.
WE WILL NOT hold out to our employees that we have re-
assigned supervisors because of employee complaints during
the union organizing campaign.
WE WILL NOT tell our employees that they could not talk
because they may be talking about the Union.
WE WILL NOT discharge our employees because they en-
gage in union activities.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed them by Section 7 of the National Labor
Relations Act.
WE WILL offer immediate and full reinstatement to Willie
Boseman and Derek Burden to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and privi-
leges.
WE WILL make Willie Boseman and Derek Burden, whole
for any loss of earnings they suffered by reason of our dis-
crimination against them with interest.
WE WILL notify Willie Boseman and Derek Burden, in
writing, that we have rescinded the actions found illegal
herein and that we will not use those actions against them
in any manner.
GOLDTEX, INC.